Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I rise in strong support of the nomination of William Pryor to the U.S. Court of Appeals for the Eleventh Circuit or, to put it more precisely, I rise to support the permanent appointment of Judge William Pryor to the Eleventh Circuit.

Judge Pryor's credentials, his character, and commitment to judicial restraint already make a compelling case for his appointment. His continuing service on the Eleventh Circuit only adds to that compelling case.

I urge my colleagues to vote for confirmation so Judge William Pryor can continue to be a valuable member of the U.S. Court of Appeals.

Debate about this nomination did not just begin. President Bush nominated William Pryor more than 2 years ago. During a lengthy hearing before the Judiciary Committee in June 2003, he answered more than 185 questions. It has now become common practice for Senators to deluge a nominee with post-hearing written questions. Judge Pryor answered nearly 300 of those as well. The Judiciary Committee debated this nomination during three different business meetings and favorably reported it twice here to the Senate floor where we have already debated it in the context of two previous attempts to invoke cloture.

Here we are debating the Pryor nomination again. I am one of many Senators who believes we should have confirmed this nomination a long time ago. Yesterday more than one of our Democratic colleagues complained that we are debating judicial nominations when, they said, ``we should be doing legislative business.'' That is exactly what we would be doing were it not for the confirmation obstruction campaign led by those very same Democratic Senators. They are the ones who met in 2001 to change the confirmation ground rules. They are the ones who demand dozens and dozens of unnecessary rollcall votes that have eaten up literally days of floor time. They are the ones who launched this campaign of outrageous and unprecedented judicial filibusters.

Our Democratic colleagues have changed the way we do judicial confirmation business in the Senate, and that has changed the way we do legislative business. They have no one to blame but themselves. To come in here and complain that we are not doing the business of the people when one-third of the separated powers in this country involves judges is pretty much out of line.

Under the standards the Senate traditionally applied to judicial nominations, we would already have confirmed the nomination before us. Although some across the aisle have attempted to change the ground rules, I am pleased we have now invoked cloture and are in the final stretch of debate on this very important nomination. There is light at the end of the confirmation tunnel.

We have become accustomed to the pattern of attack by those who oppose President Bush's judicial nominees. They equate a nominee's personal views with that nominee's judicial views. They create the most wretched and distorted caricature of a nominee, turning him into some creature one might see on ``Law and Order'' or ``America's Most Wanted.''

What it boils down to is the wrongheaded notion that no one who thinks for himself, who does not toe the leftwing line, whose perspective or values did not turn the liberal litmus paper the right-- or left--color, or who as a judge may fail consistently to deliver politically correct results is acceptable. These advocates of an activist judiciary are not foolish enough to attack every nominee. They will remind us of how many of this President's judicial nominees they have supported. But the circumstances that have brought us here today demonstrate the confirmation ground has shifted.

I urge my colleagues not to be persuaded by the caricatures created by Washington-based lobbyists and leftwing groups which need to send out the next fundraising appeal. Instead I urge my colleagues to listen to those who actually know William Pryor, who have worked with William Pryor, because they are among his strongest supporters.

Dr. Joe Reed, chairman of the Alabama Democratic Conference--yes, that is right, the Alabama Democratic Conference, the State Democratic Party's African-American caucus--knows William Pryor. He has worked with William Pryor, and he strongly supports William Pryor. Note what Dr. Joe Reed has to say about this nominee.

He says that William Pryor:

will uphold the law without fear or favor. I believe all

races and colors will get a fair shake when their cases come

before him. I am a member of the Democratic National

Committee and, of course, General Pryor is a Republican, but

these are only party labels. I am persuaded that in General

Pryor's eyes, Justice has only one label--Justice!

Any of us would certainly be hard pressed to come up with a better endorsement or a more substantive compliment for any judge on any court anywhere in America.

Listen to Alvin Holmes, an African American who has served in the Alabama House of Representatives for nearly three decades. He introduced a bill to remove the State Constitution's ban on interracial marriage. Representative Holmes says that while white political leaders in the State, Democrats and Republicans, either opposed the bill or kept quiet, then-Attorney General William Pryor spoke out. William Pryor urged Alabamans to vote for removing the ban on interracial marriage and then, when it passed, he defended the measure in court against legal challenge.

Representative Holmes knows William Pryor. He has worked with William Pryor, and he strongly supports William Pryor. Listen to what Representative Holmes says about this nominee, this African-American leader of the Alabama House of Representatives:

I request your swift confirmation of Bill Pryor to the 11th

Circuit because of his constant efforts to help the causes of

blacks in Alabama.

Or consider the opinion of Judge Sue Bell Cobb who sits on the Alabama Court of Criminal Appeals. This is what she says:

I write, not only as the only statewide Democrat to be

elected in 2000, not only as a member of the Court which

reviews the greatest portion of General Pryor's work, but

also as a child advocate who has labored shoulder to shoulder

with General Pryor in the political arena on behalf of

Alabama's children. It is for these reasons and more that I

am indeed honored to recommend General Pryor for nomination

to the 11th Circuit Court of Appeals.

That is the Honorable Sue Bell Cobb, judge of the Alabama Court of Criminal Appeals.

Think about that. These are people who know William Pryor. These testimonies--and there are many more like them--describe a man who cares deeply about what is right and who has the character to do what is right, no matter what the political cost. People such as these are in the best position to know the real William Pryor. If this were a court of law, their testimony would be deemed especially credible. Theirs is not hearsay testimony such as we are hearing from some with the other side. They are not repeating someone's talking points. They are not offering generalities or cliches.

Talking points, generalities, and cliches, however, are all that Judge Pryor's opponents have to offer. The far left-wing Washington- based lobbyists who appear to make their living opposing President Bush's judicial nominations repeat the same rhetoric about nominee after nominee. Sometimes I wonder whether they put together their press releases and action alerts simply by cutting and pasting in the name of a new nominee.

They use the same mantra now, saying Judge Pryor is hostile to civil rights, hostile to virtually every right under the sun. Perhaps he is also the cause of childhood asthma, global warming, and rising interest rates.

I would listen to the people I have just quoted who know the man. They are all Democrats, by the way.

If there is any reason to believe such a thing as these awful comments that have been made by our colleagues on the other side, then these left-wing Washington lobbyists should be able to convince Dr. Joe Reed, Alvin Holmes, and Judge Sue Bell Cobb that Judge William Pryor is hostile to civil rights. I wish them luck because I know they can't do that. And they know they can't do it. That is what is reprehensible.

Perhaps the most important element of judicial duty is the commitment to follow the law regardless of personal views. Throughout his career William Pryor has not just stated such a commitment to judicial restraint, he has demonstrated it. We all know, for example, that William Pryor is pro-life. His belief in the sanctity of human life no doubt helps explain his advocacy for children. Like millions of Americans, most Alabamians apparently share such pro-life values. In 1997, the State legislature enacted a ban on partial-birth abortion. If William Pryor were what his critics claim, that would surely have been his chance to take a stand, stake a claim, defy the Supreme Court, and to seek to impose his personal moral code. He did no such thing, proving once again that his critics are flat wrong.

(Mr. ALEXANDER assumed the chair.)

After the U.S. Supreme Court ruled in Stenberg v. Carhart that a State legislative ban on partial-birth abortion is unconstitutional, Attorney General William Pryor instructed State law enforcement officials to abide by that decision, even though he personally disagreed. The Senator from Tennessee, Mr. Alexander, presiding in the Chair right now, reminded us earlier today that this was at General Pryor's own initiative. The law, not his personal views, formed how he carried out his official duties.

Attorney General Pryor filed an amicus brief in the Lawrence v. Texas case defending a State's right to prohibit certain sexual conduct. Alabama had a statute similar to the Texas statute being challenged in that case. When the Supreme Court ruled against his position, he immediately released an official statement that the Supreme Court decision rendered Alabama's law unenforceable.

Similarly, the entire country knows that as Alabama Attorney General, William Pryor took an unpopular stand regarding the Ten Commandments display in the Alabama judicial building. One respected religious magazine placed a picture of Judge Pryor on its cover with a headline asking whether his legal stance amounted to political suicide. It is clear that Judge Pryor places the law above personal priorities and political expediency. This stuff about following the law rather than personal opinions is not rhetoric, talking points, or window dressing. This is not just William Pryor's stated commitment, this is his demonstrated commitment.

It is a record that makes former Alabama Attorney General Bill Baxley, another Democrat, strongly support Judge Pryor's nomination. Here is what General Baxley, a leading Democrat in Alabama, said about William Pryor:

In every difficult decision he has made, his actions were

supported by his interpretation of the law, without race,

gender, age, political power, wealth, community standing, or

any other competing interest affecting judgment. I often

disagree, politically, with Bill Pryor. This does not prevent

me from making this recommendation because we need

fairminded, intelligent, industrious men and women, possessed

of impeccable integrity, on the Eleventh Circuit. Bill Pryor

has these qualities in abundance. . . . There is no better

choice for this vacancy.

That is Bill Baxley, former Alabama Attorney General, leading Democrat in the State.

Just think about that. These Democratic leaders from Alabama paint a very consistent picture of William Pryor. He will uphold the law without fear or favor. He makes decisions without regard to political or irrelevant factors. He is fairminded, intelligent, and industrious. I certainly agree with this assessment, though it does not come first from the Senator from Utah. Democrats such as Dr. Joe Reed, Representative Alvin Holmes, Judge Sue Bell Cobb, and Attorney General Bill Baxley know the difference between private views and public duty. They know the difference between personal opinion and judicial opinion. And they strongly support William Pryor's nomination to the Eleventh Circuit.

I wish some of my Democratic colleagues and their left-wing enablers knew the difference. Instead they focus only on results. All that matters, it appears, is that a judge rules right or left, as the case may be.

On Tuesday a Democratic Member of this body summed up their results- oriented litmus test approach when he said:

with respect to a whole series of issues, this nominee is

profoundly wrong.

No doubt each of us in this body has heard something like that in a campaign commercial. We might hear it here when the Senate is in legislative session. But this is a judicial nomination we are debating. What does it mean to say that the judicial nominee is wrong on the issues? Never mind being judicially correct, just be politically correct. Results are all that matters.

Yesterday during the debate on the Brown nomination, the Senator from California, Mrs. Boxer, took a similar tack. She put up one poster after another, each stating in the most simplistic terms the results of a case, and then claimed that Justice Brown personally favored the result for which she voted.

This insidious tactic claims, for example, that if a judge votes that the law does not prohibit racial slurs, then the judge must favor racial slurs. If a judge votes that the law does not prohibit an employer's hiring decision, then the judge must favor that hiring decision. In March of 2000, 29 current Senators, including my friend from California, Senator Boxer, voted against a constitutional amendment to allow protection of the American flag. How would any of them respond--how would the Senator from California respond--to the accusation that by that vote, they were siding with the flag desecraters?

That would be an outrageous charge, and we all know that.

Yet opponents of these judicial nominees, including the Senator from California, are using exactly the same tactic, exactly the same logic. They continue doing so in this debate over William Pryor's nomination. But this tactic misleads the American people about what judges do, and it twists and distorts these debates about whether to confirm judicial nominees.

I am reminded of a 1998 article written by the distinguished Judge Harry Edwards, appointed to the U.S. Court of Appeals for the DC Circuit by President Jimmy Carter, in which he warned that giving the public a distorted view of judges' work is bad for the judiciary and the rule of law. The tactics being used against nominees such as William Pryor are, indeed, giving the public a distorted view of judges' work.

Thankfully, Judge Pryor knows the difference between personal views and the law. He knows the difference between means and ends. And I am proud to say that Judge Pryor refuses to go down the politicized road of judicial activism. He has demonstrated where his commitment lies. He has shown, in each phase of his career, that he will follow the law.

Our colleague and my fellow Judiciary Committee member, Senator Sessions, has worked very hard to educate this body about this fine nominee. He has a special perspective on Judge Pryor's commitment to follow the law. He hired William Pryor in the Alabama attorney general's office and Judge Pryor replaced him when then-Attorney General Sessions joined us here in the Senate. I thank our colleague for his tireless and principled efforts. I know this Senator's understanding of this nominee is better as a result.

William Pryor is demonstrating that same commitment on the U.S. Court of Appeals for the Eleventh Circuit. That is exactly what America needs in her judges, and I urge my colleagues to support a permanent appointment for Judge William Pryor.

Mr. President, I have taken a minute or two over my allotted time. I apologize to my colleague.

Mr. President, I ask unanimous consent that the privilege of the floor be granted for the remainder of this session to Ken Valentine, a detailee from the Secret Service who is serving on my staff.

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

Mr. President, a few weeks ago, the debate in this Chamber captured the attention of the Nation. At stake was the maintenance of core constitutional principles of separation of powers and a limited judiciary against an unprecedented strategy of filibustering judicial nominees. Prior to 2003, Senators exercised self-restraint. In theory, the opportunity was always there for us to filibuster the President's judicial nominees, but out of proper respect for the President, whoever the President was, his power of appointment, and with an appropriate modesty about our own constitutional role, we refrained from exercising this power to filibuster judges.

We kept ourselves in check. In spite of real philosophical differences about the nature of judging and the meaning of the Constitution's fundamental guarantees, we all agreed on one thing: The Constitution's separation of powers prevented us from adopting a strategy of permanent minority-led filibusters of judicial nominees.

That self-restraint was tossed aside, however, in 2003. Led in large part by my friend and colleague, the senior Senator from New York, the Democratic leadership determined to engage in a full-blown inquiry of what they called the ideology of judicial nominees. Never before have opponents of a limited judiciary been so brazen with their litmus tests. They would now openly reject qualified nominees because of their strongly held personal beliefs, not for their judicial temperament, not for their experience, not for their character. Rather, nominees would be rejected because of their personal beliefs.

For some reason, what they termed ``strongly held personal beliefs'' were particularly suspect. California Supreme Court Justice Janice Rogers Brown, an eminently qualified jurist, was one of the primary targets of this radical strategy. For a few thought-provoking speeches she had given, some have tried to label her too extreme for the bench.

There is no doubt Janice Rogers Brown is conservative, but her views are hardly out of the ordinary. They are views shared by many millions of regular citizens, citizens of different economic, geographic, financial, ethnic, and religious backgrounds. Most importantly, however, it is clear that

her personal views, whatever they are, do not cloud her judgment on the bench. Justice Brown's opinions are fully within the mainstream of American jurisprudence. It is the liberal activist groups that are purposefully misrepresenting Justice Brown's opinions, and what they think are her views, that are stranded out on the far left bank of American politics. Those groups belong on the far left bank of American politics, and that bank is way out of the mainstream.

The President takes his constitutional responsibilities seriously when he nominates individuals to the Federal bench. I have worked closely with the White House for the last 4\1/2\ years on these judges, so I know that to be true. I know that as Senators, we take our responsibilities seriously when we review and confirm these individuals. When determining a person's fitness for the Federal bench, we evaluate their character and we inspect their records. We consider judicial experience, public service, legal work, academic achievement, personal character, and the ability for objectivity.

With these qualities in mind, it is worth considering the view of Justice Brown held by a number of prominent California law professors.

In a letter sent to me in my former capacity as chairman of the Judiciary Committee, a group of 15 distinguished California law professors had the following to say about Justice Brown:

We know Justice Brown to be a person of high intelligence,

unquestioned integrity, and evenhandedness. Since we are of

differing political beliefs and perspectives, Democratic,

Republican and Independent, we wish especially to emphasize

what we believe is Justice Brown's strongest credential for

appointment to this important seat on the D.C. Circuit: her

open-minded and thorough appraisal of legal argumentation--

even when her personal views may conflict with those

arguments.

Having gotten to know Justice Brown during this unnecessarily protracted confirmation process, I fully concur in this bipartisan consensus. And I can tell you she has cultivated these virtues against many odds.

Janice Rogers Brown was born in Greenville, AL, in 1949. She attended segregated schools. She was a firsthand witness to the injustice of Jim Crow and its failure to extend the promise of the 14th amendment to the descendants of freed slaves. Equal protection under the law was only a dream in the Deep South at that time when young Janice Rogers Brown left her African-American family for California.

Yet this girl who grew up listening to her grandmother's stories about NAACP Fred Gray, the man who courageously defended Martin Luther King, Jr., and Rosa Parks, brought to the golden State of California a passion for civil rights and a need for impartial justice.

Janice Rogers Brown cultivated this passion for justice through a career of almost uninterrupted public service as an attorney. After graduating from law school at UCLA, she served 2 years as deputy legislative counsel in the California Legislative Counsel Bureau. Then from 1979 to 1987, she was deputy attorney general in the office of the California Attorney General. Her work there was of such high quality that it led to her appointment as the deputy secretary and general counsel for the California Business, Transportation, and Housing Agency in 1987 where she supervised the State's banking, real estate, corporations, thrift, and insurance departments. No dunce could have done that. No person as described by some of my colleagues on the other side would have been chosen in that great State of California to do that. She has been very badly derided by picking and choosing little snippets here and there and taking them out of context.

From 1991 until 1994, she served as the legal affairs secretary to California Gov. Pete Wilson. I personally chatted with Pete Wilson, who is an old friend. He said she was terrific. He relied on her legal abilities.

Then in 1994, she embarked on the professional journey that culminated in her nomination to the Circuit Court of Appeals of the District of Columbia. First, she was nominated and confirmed as an associate justice on the California Third District Court of Appeals. Then in 1996, Gov. Pete Wilson elevated her to the position of associate justice on the California Supreme Court.

I ask unanimous consent to print in the Record her funeral eulogy for one of the great judges on that first appellate court.

Mr. President, Janice Rogers Brown's deep and uncompromising desire to secure equal justice for everyone who appears before her is evident off the bench as well. She has served as a member of the California Commission on the Status of African-American Males. This bipartisan commission made recommendations for addressing inequities in the treatment of African-American males in employment, business development, and the criminal justice and health care systems. This was noble work.

In addition, as a member of the Governor's child support task force, she made recommendations on how to improve California's child support enforcement system. No small matter. She would not have been trusted with that had she been as described by some of my eminent colleagues and friends on the other side.

Justice Brown's critics cannot escape this story, so they turn to her statements off the bench and to her decisions on the bench in California to assert misleadingly that she is extreme. The instances they cite do not support these hysterical charges, and I want to consider them at some length.

One of Justice Brown's speeches received quite a bit of attention. In April 2000, she was invited to speak at the University of Chicago Law School. I have had the same privilege, by the way. Evidently, her critics say what she said there was so radical that we should keep her off the Federal bench.

Never mind that a public speech is an opportunity to be provocative, especially at a law school. Never mind that judges, like most folks, are able to separate out their personal and political beliefs from their professional duties. And never mind that Justice Brown was doing a service to these students by coming to speak before them, jar their imaginations, and give them something more to think about.

The fact is, what she said was not that radical. Groups have keyed in on her colorful critique of the New Deal. Give me a break. The same people who come down here decrying Justice Brown's description of the New Deal as revolutionary turn around 5 minutes later and claim that our current Social Security system cannot be adjusted one iota to address contemporary concerns because it was central to the New Deal's political revolution. Can you imagine, these very same people who find so much fault with her? You cannot have it both ways.

Their real problem is that Justice Brown then went on to criticize some of the unintended social and political consequences of big Government. When she claimed that an increasing public sphere tended to undermine the individualist spirit present at America's founding, she was saying nothing other than what de Tocqueville, Ronald Reagan, Booker T. Washington, Robert F. Kennedy, and countless political philosophers and economists have noted over the years.

Everyone knows that it takes a village--families and communities--not a sterile Government-mandated bureaucracy to raise a child or, rather, that it takes a family, not the Government, to raise young citizens.

Yet her critics treat Justice Brown's claims as trying to prove that the world is flat. The senior Senator from Massachusetts was on the floor yesterday afternoon and today arguing that Justice Brown's claim that an increasing public sphere is detrimental to civil society is outside the legal mainstream. Again, give me a break.

I cannot help but think that for Janice Rogers Brown, this criticism of big Government is related to her experience growing up in the Deep South and her adulthood working for the State of California. She did not have to read about Jim Crow in books. She lived it. My sense is that part of Justice Brown's commitment to rugged individualism is related to this hard-learned lesson: There are limits to what Government can accomplish.

That is precisely what President Reagan stated in his first inaugural address. When he said this in 1981, some of the very same people who attack Janice Rogers Brown today said President Reagan was out of the mainstream. That was the argument by the very same people back then.

Nowhere was this well-intentioned governmental overreach more apparent

than in our failed experiment with welfare. Republicans and Democrats alike, originally led by the insights of our former colleague, the late Democratic Senator Daniel Patrick Moynihan, understood the detrimental impact of welfare on the urban poor in particular. I think Janice Rogers Brown understood that lesson as well.

But for articulating a similar skepticism about Government, Janice Rogers Brown has been branded a radical revolutionary. Quite the contrary. Her arguments have been based on reasonable concerns. And hers was a conclusion reached over the years by millions of Americans.

A few of Justice Brown's many decisions while a judge have also served as a source of the criticism that has been unfairly leveled at her. Of all the criticisms of Justice Brown, none more rankles than the claim she opposes civil rights. That is laughable. This is par for the course for some of these leftwing, fringe groups that have been smearing and attacking Republican nominees ever since I can remember, but certainly ever since Justice Rehnquist had his hearings and was confirmed to the Supreme Court as Chief Justice.

Just this week, the chairman of the Democratic National Committee was quoted as telling a group in San Francisco that Republicans are ``not very friendly to different kinds of people.'' He called the GOP ``pretty much a monolithic party. They all behave the same. They all look the same. It's pretty much a white Christian party.'' This is racial demagoguery, pure and simple, done by the chairman of the Democratic National Party. If I didn't know how bright he was, I would call him a raving idiot. But maybe he is just that part of the time.

This desperate rhetoric has a purpose: to mask the increasing attraction of conservative ideas to African Americans, Hispanic Americans, Jewish Americans, and other minorities the Democrats have felt they have an absolute claim to, no matter how outrageous some of their programs and ideas are.

So it is not surprising that when the organized critics of Janice Rogers Brown send their faxes to the press, her argument in the decision People v. McKay is notably absent. This is what she had to say there:

In the Spring of 1963, civil rights protests in Birmingham

united this country in a new way. Seeing peaceful protesters

jabbed with cattle prods, held at bay by snarling police

dogs, and flattened by powerful streams of water from water

hoses galvanized the nation.

Without being constitutional scholars, we understood

violence, coercion and oppression. We understood what

constitutional limits are designed to restrain. We reclaimed

our constitutional aspirations. What is happening now is more

subtle, more diffuse, and less visible, but it is only a

difference in degree. If harm is still being done to people

because they are black, or brown, or poor, the oppression is

not lessened by the absence of television cameras.

She wrote those words while arguing for the exclusion of evidence of drug possession discovered after an African-American defendant was arrested for riding his bicycle the wrong way on a residential street. She believed that the only reason this person was stopped was because of his race, and she was the only one of her colleagues on the supreme court to argue for the exclusion of this evidence on the grounds that it was the product of improper racial profiling. Yet our colleagues over here say she is an opponent of civil rights. Give me a break.

I have seen and heard just about everything in my years in the Senate, but the highly partisan campaign of the NAACP against Janice Rogers Brown is particularly shameful. It is sad to see the NAACP, the Nation's foremost civil rights institution, become little more than a partisan special interest group.

The other day I received a fax from their office urging me to vote against Justice Brown's confirmation because she was, ``hostile towards civil rights and the civil liberties of African Americans and other racial and ethnic minorities.''

My stomach turned when I read this. Not only is this irresponsible rhetoric, not only is it unfair and uncharitable, it is without any real foundation. In other words, it is total bullcorn, and it is wrong.

The NAACP, along with a number of other groups, has turned to Justice Brown's opinion in Hi-Voltage Wire Works, Inc., v. City of San Jose to show that she is inhospitable to minorities because of her supposed stance on affirmative action. These arguments, again, are way off the mark and an analysis of them demonstrates not only that Justice Brown is a mainstream conservative judge but also that these interest groups are extremely liberal outfits attempting to gain through judicial fiat what they cannot fairly win through the legislative process through the elected representatives of the people.

The Hi-Voltage case involved California's proposition 209. In a popular referendum, the people of California were clear: Discrimination or preferential treatment on the basis of race, sex, color, ethnicity, or national origin violates core constitutional principles of equal treatment under the law. Therefore, proposition 209 prevented discrimination in any public employment, public education, or public contracting.

Now, at issue in this case was a San Jose minority contracting program that required contractors bidding on city projects to employ a specified percentage of minority and women contractors. In her opinion, Justice Brown merely did what every judge who ever reviewed this case did. Through the trial court, through the appellate court, to the Supreme Court, all concurred with Justice Brown that this program was exactly the type of noxious racial quota program that proposition 209 was designed to prevent.

Her critics charge this demonstrates her blanket opposition to affirmative action. Such a conclusion depends on a deliberate misreading of Justice Brown's opinion in this case. She could not have been any more clear. She did not oppose affirmative action in all circumstances. These are her words:

Equal protection does not preclude race-conscious programs.

Contrary to the propaganda being issued by liberal interest groups, Justice Brown's opinion explicitly authorizes affirmative action programs.

I do not blame my colleagues on the other side completely because most of the time they just take what these outside leftwing radical groups give them and read it like it is true. So I say I do not blame them completely. But unlike the Supreme Court of the United States, the people of California have rejected quotas and race-based head counting.

Those are not affirmative action programs that merely take race into account. Programs such as the one under review in the Hi-Voltage case are improper quota programs. For following the mandate of California citizens on this subject, she has been called radical.

The NAACP's criticism is, as usual, overblown. They claim that Justice Brown's decision ``makes it extremely difficult to conduct any sort of meaningful affirmative action program in California.''

But what is a meaningful affirmative action program? I fear that these leftwing liberal interest groups are suggesting that the only meaningful type of affirmative action program is the type of quota program specifically banned by proposition 209. As it turns out then, Justice Brown's real failure in this case is that she did not tailor the law to suit her own moral and political preferences. For this, she is demonized as a radical. It is her failure to embrace full-blown judicial activism that is her principal failing in the minds of her detractors.

Consider her opinion in American Academy of Pediatrics v. Lundgren. This case involved California's parental consent law. Parental consent laws are not rightwing policies. They are moderate restrictions on abortion rights supported by substantial majorities of the American people.

I find it interesting that the same groups that champion the right of a woman to make an informed choice about obtaining an abortion also reject moderate restrictions on the accessibility of abortion to minors who routinely do not possess the judgment necessary for the profound moral and philosophical decision to obtain an abortion.

We should not forget the U.S. Supreme Court, while acknowledging the right to an abortion, also has held that it is permissible under the Constitution to establish parental consent laws such as California's. California courts have long relied on Supreme Court precedents when defining the boundaries of

their State's own constitutional right to privacy. That is the context of this decision, and in it Justice Brown dissented from the determination of an activist court to overturn California's moderate restriction on abortion rights. She wrote:

When the claim at issue involves fundamentally moral and

philosophic questions as to which there is no clear answer,

courts must remain tentative, recognizing the primacy of

legislative prerogatives.

She continued, adding that:

The fundamental flaw running through its analysis is the

utter lack of deference to the ordinary constraints of

judicial decision-making--deference to state precedent, to

federal precedent, to the collective judgment of our

Legislature, and, ultimately to the people we serve.

This is not some debate over a speech that Justice Brown gave at a law school forum. We know that is not the real threat to these interest groups. They can see that judges such as Janice Rogers Brown take their oaths seriously. They will interpret the law rather than act as super legislators and make the law.

By showing deference to the people's representatives and the legislative and executive branches, these groups which too often today try to take the easy way out will now have to engage in the political process to win their points of view. Personally, I believe this would be a healthy development, but to those uncompromising special interest groups the democratic process is a threat, not a gift.

Soon we are going to have to vote on Justice Brown's nomination. I am glad and thankful that we are finally reaching this point after the number of years we have been at it. I know many people wanted to move beyond these divisive debates over judges. I appreciate their desire to move beyond this messy business of judicial nominations and I understand the desire to applaud the deal that has allowed last week's vote on Priscilla Owen and our vote later today on Janice Rogers Brown. The ultimate meaning of this compromise is yet unknown, but one thing we do know, these qualified women will have long careers on the bench in large part because the majority leader had the guts and decided to press this issue, reestablish longstanding Senate precedents, and tried to support the constitutional separation of powers.

Our senatorial power of advice and consent does not include the right to permanently filibuster judicial nominees. We have gone a long way to reaffirming what used to be an obvious truth, and we owe a debt of gratitude to the leader for helping to make this happen. We should also acknowledge the well-intentioned efforts of the 14 Senators involved in facilitating these votes. I know many conservatives are upset with this arrangement. I am myself. I am certainly not entirely comfortable with all the aspects of it myself, and I have said that it may prove to be a truce, not a treaty. We will have to wait and see what the full implications of this deal really are.

It does seem, however, that the cloture votes on nominees such as Priscilla Owen, Janice Rogers Brown, and William Pryor demonstrate the emergence of a filibuster-proof majority that believes even judges with conservative judicial philosophies are not the extraordinary cases that would trigger a filibuster and that even a conservative African- American woman has a chance to serve in this country. Unfortunately, some have been against her primarily because she is a conservative African-American woman.

We seem to be gaining ground in the fight against the erroneous belief that nominees with whom one disagrees politically are undeserving of an up-or-down vote. Of course, the acid test of this agreement will come in the weeks ahead when the Senate addresses nominees not specifically granted a safe harbor by the compromise.

This debate over Janice Brown and others with her conservative philosophy of judicial restraint is an important one. I will not compromise on the principle that the American people and their elected representatives, not judges, should make social policy. Our courthouses were never intended to be mini-legislatures. Judges do not have the constitutional responsibility, institutional capacity, the staff, or the wisdom to be good policymakers, and judges are not and should not be philosopher kings with some ability to divine the existence of rights not clearly expressed in statutory law created by the people's elected representatives or in constitutions established by the people themselves.

We are told by some that Justice Brown is a radical. Shortly after the President was elected in 2000, the Democratic Party held a retreat at which a number of liberal law professors urged them to ``change the ground rules'' on judicial nominations. That was radical advice. It upset longstanding constitutional balances, and unfortunately it was accepted by the former minority leader.

We must reject this effort. I, for one, am not afraid to have this debate. The American people know judicial activism when they see it. Just in the last few years we have been told by judges that the Pledge of Allegiance is unconstitutional, that our Bill of Rights should be interpreted in light of decisions by the European Court of Human Rights, and that well-considered bans on partial-birth abortion violate core constitutional principles.

Only a few weeks ago, a Federal judge in Nebraska invalidated the duly passed State constitutional amendment that preserved traditional marriage in that State. The definition of a judicial activist is someone who puts his or her own personal views ahead of what the law really is.

Some of the leading groups opposed to Janice Brown oppose her precisely because she will faithfully interpret the law rather than remaking it according to her own theory of justice. What they really object to is Justice Brown's refusal to revise legal guarantees according to some version of justice not present in a text.

I am proud of this body for allowing Justice Brown's nomination to finally, at long last, come up for a vote. My guess is that she will soon be sworn in as a Federal judge. That will be a great day not only for Janice Rogers Brown, who has had to endure these coordinated, calculated attacks on her character, but it will be a great day for this Nation as well, and it will bring a lot of joy to me personally.

In all of the hundreds of judges who now sit on the bench, Janice Rogers Brown is one of the finest people I have met and interviewed. So is Priscilla Owen. So is William Pryor, whom we will vote upon probably tomorrow. These are outstanding people, and so are the others who have been waiting for so long to just have the opportunity for a vote up or down on this floor.

I am tired of seeing these good people maligned with false facts, to begin with. I am tired of seeing them maligned with misinterpretations of the case law, primarily written by some of these outside groups that have real axes to grind and that are on the far left bank outside of the mainstream of the law itself.

I hope everybody will vote for Janice Rogers Brown. She will make a real difference on the bench. She is a good person. I interviewed her for more than 3 hours. I can say, I have seldom met a person of such capacity, decency, dignity, and honor as she and Priscilla Owen. It will be a great day to confirm her as a judge on the Circuit Court of Appeals for the District of Columbia.

I yield the floor.

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

Mr. President, I am pleased that, after much too long a delay, the Senate will meet its constitutional responsibility to vote on an important nomination for the President's national security team.

I am referring to the nomination of Mr. John Bolton to be our next ambassador to the United Nations.

This position must be filled if the administration is to advance its foreign policy, which includes both the use of the United Nations to support our country's goals, as well as our goals to advance reform in a very difficult international organization that, to be frank, has earned the skepticism of a good many Americans, including many in my home State of Utah.

It would be a mistake, however, to suggest that this administration is anti-U.N. After all, during his first term, President Bush addressed the United Nations more times than any of his predecessors ever had in the same period, throughout the entire history of the United Nations.

That the President has regularly consulted with, and sought the support of, the United Nations gives lie to accusations that he is a unilateralist.

That he has never hinged our foreign policy needs and goals on the support of the United Nations demonstrates that our President has a proper understanding of our sovereign rights, as well as a realistic understanding of what the U.N. can contribute. The vast majority of the citizens of my State agree with President Bush that the U.N. can be sought as a useful tool to advance our national security, but that the pursuit of our foreign policy goals should never, never be conditioned on U.N. approval.

John Bolton, whose career in foreign policy has included numerous positions where he was worked with international organizations, including much experience with the U.N., understands this. Certainly it is not for lack of experience that Mr. Bolton's nomination has become so controversial. Nobody can credibly make that argument.

It is because of his philosophical convictions about the limits of international organizations--convictions shared by the President who nominated him--that Mr. Bolton's nomination has been delayed. I have found this entire spectacle to be dismaying.

Early objections were quite plain in this approach: John Bolton was charged with an unnecessarily skeptical view of multilateralism.

In my opinion, the reason George Bush won a decisive victory in a close re-election campaign is because the American public recognizes that national security issues are of dire importance, and that the President has a better grasp of how the real world works.

The vast majority of the Utahns I represent object to any suggestion of checking American power with multilateral institutions.

They do not believe in ``aggressive multilateralism'' an expression used during past administrations.

They do not believe that the reluctance of European powers to join us in all our causes is a failure of our diplomacy, because nations will pursue their national interest no matter what the rhetoric may be. To measure diplomacy by the decisions of nations is to misunderstand both diplomacy and the dynamics of how nations pursue their national interest. President Bush understands this, as does John Bolton.

The nomination process grew quite tawdry, in my opinion, when it turned to innuendo and, in some cases, attacks on the nominee's character.

I know John Bolton. He is a decent, honorable man of inestimable intelligence who has done a tremendous job in every public position he has held.

Opponents of Mr. Bolton declared, insinuated, and denounced the nominee based on a handful of alleged reports of his cantankerousness. Imagine that. A cantankerous personality in a high-powered job. In Washington, no less. Give me a break.

Mr. President, the list of those who have stood up for Mr. Bolton is one of the most impressive I have ever seen in my years in the Senate, And I will leave it to my colleagues to attempt to include it all in the Record. I must note, however, the following statement included in a letter to the Senate Foreign Relations Committee:

We, the undersigned, have been appalled at the charges that

have been leveled at John Bolton during the course of his

nomination hearing to be this country's ambassador to the

United Nations. Each of us has worked with Mr. Bolton. We

know him to be a man of personal and intellectual integrity,

deeply devoted to the service of this country and the

promotion of our foreign policy interests as established by

this President and the Congress. Not one of us has ever

witnessed conduct on his part that resembles that which has

been alleged. We feel our collective knowledge of him and

what he stands for, combined with our own experiences in

government and in the private sector, more than

counterbalances the credibility of those who have tried to

destroy the distinguished achievements of a lifetime.

This is a letter signed by former Attorney General Ed Meese, former Attorney General and Governor of Pennsylvania Dick Thornburgh, former Associate Attorney General and Governor of Oklahoma, Frank Keating, former Assistant Attorney General and Governor of Massachusetts, William Weld, and more than 30 of Mr. Bolton's former colleagues in the Department of Justice.

Following the ideological criticisms, following the attacks on his character, the opponents of Mr. Bolton tried the intelligence angle. Apparently, Mr. Bolton has disagreed with a few intelligence reports and analysts. His opponents appear to believe that by waving a specious charge of ``misrepresenting intelligence,'' they can hit the theme of imperfect intelligence that serious policymakers have been wrestling with during the last few years of this administration. And we all know, and certainly we members of the Senate Select Committee on Intelligence know, that intelligence has been seriously flawed in recent years. We all know that.

But to take a serious problem, which our committee has now spent years exposing and correcting, with the support of the administration-- and to turn it into an opportunistic attack on a nomination for the U.N. ambassador is specious at best. At no point in our investigations of intelligence regarding Iraq, have we found convincing evidence that intelligence analysts were pressured to change their views based as a result of political pressure. And none of our conclusions have indicated that the intelligence process would be made better if dissenting views would be suppressed. If anything, we need more dissent to qualify and verify our intelligence products.

If there is anything we have learned in our review of faulty intelligence, it is that there is not enough scrutiny, not enough skepticism and, frankly, not enough expressing contrasting views. Apparently, our friends on the other side, the Democrats, do not seem to understand this. I am relieved now that after all the delay, the President will get his vote on his nomination of this very fine man for this very important position.

I commend the chairman of the Senate Foreign Relations Committee for his commitment and patience in bringing this nomination to the floor. I know how tough it is to sit through meeting after meeting where the nominee is being attacked with what really amount to almost flippant attacks. Both of Senator Lugar's virtues--his commitment and patience-- have been, I suspect, severely tested.

John Bolton served as a senior diplomat for this country in various capacities for over 20 years. He has served with great distinction and has many accomplishments to his credit. He has my personal admiration for these accomplishments. Whether they have been standing up to the United Nations and our country's rejection of that organization's intellectual disease, known as declaring Zionism as racism, or in his post-9/11 efforts to advance multilateral cooperation in his proliferation security initiative, Mr. Bolton's efforts have advanced U.S. interests and U.S. values. I am grateful for his work on behalf of our Nation, and I am grateful that he chooses to continue to serve.

In closing, I note a section of a letter sent to the Foreign Relations Committee by former Secretaries of State Baker, Eagleburger, Haig, Kissinger, and Shultz, and former Secretaries of Defense Carlucci and Schlesinger, former U.N. Ambassador Kirkpatrick, and other distinguished former national security officials:

Secretary Bolton, like the administration, has his critics,

of course. Anyone as energetic and effective as John is bound

to encounter those who disagree with some or even all of the

administration's policies. But the policies for which he is

sometimes criticized are those of the President and the

Department of State which he has served with loyalty, honor,

and distinction.

President Bush has the right to his nominee for the United Nations. All Senators have the right to refuse consent if they so choose. If our friends on the other side, or even friends on this

side, disagree with Mr. Bolton and want to vote ``no,'' they have every right to do so. But he certainly deserves a vote up or down for this very important position, and he does not deserve to have his nomination filibustered.

All Senators, as I say, have a right to refuse consent. In a time of war--and we remain in a complicated global war--a President's right to assemble his national security team should not be hindered, and it certainly should not be hindered by people on the floor of the Senate. It is time, well past due, to have this vote.

Mr. Bolton is a good man. I have known him for most of those 20 years. I know him personally. I know he is a man of integrity. I know he is a man of great intelligence. I know he is a tough person, exactly what we Americans would like to have at the U.N., sometimes called a dysfunctional U.N. This is a man who can bring some credibility. This is a man who can straighten some of the mess out. This is a man who can make a difference. He has been confirmed so many times in the Senate, one would think we would be ashamed to make some of the arguments that have been made against this very fine man.

I will vote for Mr. Bolton, and if he is confirmed, I will offer him my continuing support as he undertakes yet another demanding mission, and it is demanding. I urge all my colleagues to be fair. That is what is involved here. It is a question of fairness. I hope they will be fair and vote for this very fine man and give our side a chance to have somebody there who is strong, tough, knowledgeable, loyal, and capable. He is all of those things. I can personally testify to that extent, knowing this man as I do. I hope everybody will vote for cloture today and then hopefully afterwards vote Mr. Bolton up so he can start serving and the President can have his foreign policy team in place.

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

Mr. President, I rise today to introduce a bill, S. 1156, to extend and enhance a provision in the Internal Revenue Code that gives tax incentives for the production of electricity from renewable resources.

The legislation I am introducing today is central to our Nation's goal of achieving energy independence, which is at the heart of the energy bill that will soon be considered by the Senate. The Committee on Energy and Natural Resources has included in its energy bill a renewable energy title that directs the Federal Government ``to the extent economically feasible and technically practicable'' to implement programs that will produce at least 7.5 percent of the electricity from renewable sources by 2013.

The Senate Committee on Finance, on which I serve, will soon consider an energy tax bill to complement the bill from the Energy and Natural Resources Committee. The legislation I am introducing today is designed to provide incentives to help us reach this level of renewable energy production.

Specifically, my bill would amend the Internal Revenue Code to extend the Section 45 production tax credit for electricity produced from renewable resources for facilities placed in service before January 1, 2011, pursuant to a written binding contract in effect on December 31, 2007. This extension is designed to take into account the extended length of time it takes for many renewable energy facilities, particularly geothermal facilities, to be built.

In addition, my bill would provide for a 10-year credit period for all renewable energy sources covered by this tax credit. Current law allows a 10-year credit period for certain renewable sources, such as wind, but only a 5-year credit period for other renewable sources, such as geothermal. This results in an uneven playing field under current law that tilts investors toward certain renewable energy resources over others. This represents poor energy policy and it represents poor tax policy.

I believe this disparity in credit periods undermines the development of all of our renewable energy resources and thereby inhibits our goal of energy independence. This legislation would equalize the tax credit period for all renewable resources and even up the playing field.

I would like my colleagues to know more about the importance of our Nation's vast supply of geothermal energy resources. Geothermal is a clean, renewable energy resource that presently contributes over 2,718 megawatts to the U.S. energy supply. Renewable energy, excluding hydroelectric, makes up 2 percent of U.S. energy consumption; of that 2 percent, geothermal energy accounts for .44 percent, solar .06 percent and wind 1 percent. Geothermal technology is used in commercial, industrial and residential application in 26 States.

However, geothermal energy generation has not been fully exploited. According to the U.S. Department of Energy, there is almost 25,000 megawatts of undeveloped geothermal energy production potential in the United States. This is enough power to serve more than 22 million homes. Furthermore, this is an energy source that is not subject to the price and supply volatility of fossil fuels. Our energy policy should not overlook this potential or sell short its potential.

My home State of Utah has an abundance of high and low temperature geothermal resources that this bill would allow to be economically developed. For example, a new 36 megawatt geothermal plant near Cove Fort, UT, is scheduled to be under construction by the spring of 2006 with completion expected by the end of 2007. Without this legislation, it is unlikely that this plant, as well as others around the Nation, would be able to be built. That would be very unfortunate.

The area around Cove Fort has one of the largest, proven geothermal resources in the Nation. There are 3,000 contiguous acres of leased land associated with the project now on the drawing boards. At 2,000 feet underground, the geothermal resource there is relatively shallow and is considered by most geologic experts to be one of the largest underground hot water reservoirs in North America. A leading geothermal engineering company recently issued a report indicating that the Cove Fort hot water resource can support and sustain power production in excess of 100 megawatts.

Utah is but one State with geothermal resources that can help lead our Nation toward energy independence. Other States with considerable geothermal resources include Nevada, California, Montana, Washington, Oregon, Idaho, Wyoming, Colorado, North Dakota, South Dakota, Nebraska, Arizona, New Mexico, Texas, Pennsylvania, West Virginia, Louisiana, Hawaii, and Kansas. We need to get the process of developing these resources started, and the bill I am introducing today would make sure that happens.

This legislation would provide the necessary boost to the development of our geothermal energy resources as well as all other renewable energy resources available to our Nation. I urge my colleagues to join me by cosponsoring this bill.

Mr. President, I rise today to introduce a bill, S. 1159, to make permanent a provision under subpart F of the Internal Revenue Code regarding active financial services income earned abroad. I am joined in this effort by my colleagues Senators Baucus, Smith, Schumer, Crapo, Lott, Kyl, and Lincoln. Under current law, the provision will expire at the end of next year.

This legislation would ensure that U.S. financial services firms and U.S. manufacturing companies with financial services operations are subject to U.S. tax on income from their active overseas financial services operations only when such earnings are sent home to the U.S. parent company. As my colleagues know, this is the treatment provided under the U.S. tax law for other active business income earned overseas. Our legislation simply extends, on a permanent basis, the expiring provision that ensures this same treatment for the financial services industry.

The permanent extension of this provision is critically important in today's global marketplace. Over the last few years, the financial services industry has seen technological and global changes that have altered the very nature of the way these corporations do business, both here and abroad. The U.S. financial industry is a worldwide leader that plays a pivotal role in maintaining confidence in the international marketplace and positively contributes to the U.S. international trade balance. We believe it is essential that our tax laws not impose anti- competitive burdens on this important U.S. industry.

If we allow the active financial services provision to lapse, U.S. companies would have to pay both local tax and current U.S. tax on the financial services income they generate overseas. While some of this double taxation is often alleviated by the foreign tax credit, we all know that this system works imperfectly. The result is that U.S. firms end up with a cost that is not borne by their European and Asian competitors, because companies based in these areas do not face current home country taxation on financial services income. In an industry where companies compete on price and a few basis points can mean the difference between getting the business or losing it to a competitor, the imposition of this additional tax cost on U.S.-based companies would translate into a competitive disadvantage for U.S. companies and a competitive advantage for their foreign counterparts. Given the thousands of U.S. jobs at stake, many of them in Utah, we do not believe our tax policy should allow this to happen.

While this provision may seem far removed from the average Utahn or the average American, I can assure you that this is not true. For example, the Salt Lake City area serves as the headquarters location for the banking operations of American Express Centurion Bank and American Express Bank, FSB, which are important parts of the worldwide American Express Card system. Salt Lake City is also the headquarters of American Express Travelers Cheques, with its Utah facility servicing Travelers Cheques clients on a worldwide basis. Thousands of Utahns are employed by these companies.

These businesses are tied to the international marketplace through the competitive strength of the American Express global franchise. For American Express and other U.S. companies to compete on par with their foreign competitors, the U.S. tax rules need to provide fair and equitable treatment of their overseas operations. To the extent foreign competitors can take business away from U.S. firms because of an uneven playing field, U.S. jobs are at risk.

The bill we are introducing today would provide equitable and consistent tax treatment for this important component of our economy. Making this provision permanent would provide American companies much- needed stability. The current provision has been renewed several times, most recently for 5 years in the Job Creation and Worker Assistance Act of 2002. Our ``on-again, off-again'' habit of extensions prevents U.S.- based firms from competing fully in the global marketplace by interfering with their ability to make business decisions and plan on a long-term basis. The permanent extension of this subpart F provision would ensure that the U.S. financial services industry is on a competitive footing with their foreign-based competitors and would provide tax treatment that is consistent with the tax treatment accorded other U.S. businesses.

The Congress and the administration took an important step toward modernizing our international tax rules with the enactment of the American Jobs Creation Act of 2004. The legislation we introduce today furthers that act's goals of ensuring that American firms can compete in the 21st century economy.

I urge my colleagues to support this important bill and ask that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce a bill, S. 1156, to extend and enhance a provision in the Internal Revenue Code that gives tax incentives for the production of electricity from renewable resources.

The legislation I am introducing today is central to our Nation's goal of achieving energy independence, which is at the heart of the energy bill that will soon be considered by the Senate. The Committee on Energy and Natural Resources has included in its energy bill a renewable energy title that directs the Federal Government ``to the extent economically feasible and technically practicable'' to implement programs that will produce at least 7.5 percent of the electricity from renewable sources by 2013.

The Senate Committee on Finance, on which I serve, will soon consider an energy tax bill to complement the bill from the Energy and Natural Resources Committee. The legislation I am introducing today is designed to provide incentives to help us reach this level of renewable energy production.

Specifically, my bill would amend the Internal Revenue Code to extend the Section 45 production tax credit for electricity produced from renewable resources for facilities placed in service before January 1, 2011, pursuant to a written binding contract in effect on December 31, 2007. This extension is designed to take into account the extended length of time it takes for many renewable energy facilities, particularly geothermal facilities, to be built.

In addition, my bill would provide for a 10-year credit period for all renewable energy sources covered by this tax credit. Current law allows a 10-year credit period for certain renewable sources, such as wind, but only a 5-year credit period for other renewable sources, such as geothermal. This results in an uneven playing field under current law that tilts investors toward certain renewable energy resources over others. This represents poor energy policy and it represents poor tax policy.

I believe this disparity in credit periods undermines the development of all of our renewable energy resources and thereby inhibits our goal of energy independence. This legislation would equalize the tax credit period for all renewable resources and even up the playing field.

I would like my colleagues to know more about the importance of our Nation's vast supply of geothermal energy resources. Geothermal is a clean, renewable energy resource that presently contributes over 2,718 megawatts to the U.S. energy supply. Renewable energy, excluding hydroelectric, makes up 2 percent of U.S. energy consumption; of that 2 percent, geothermal energy accounts for .44 percent, solar .06 percent and wind 1 percent. Geothermal technology is used in commercial, industrial and residential application in 26 States.

However, geothermal energy generation has not been fully exploited. According to the U.S. Department of Energy, there is almost 25,000 megawatts of undeveloped geothermal energy production potential in the United States. This is enough power to serve more than 22 million homes. Furthermore, this is an energy source that is not subject to the price and supply volatility of fossil fuels. Our energy policy should not overlook this potential or sell short its potential.

My home State of Utah has an abundance of high and low temperature geothermal resources that this bill would allow to be economically developed. For example, a new 36 megawatt geothermal plant near Cove Fort, UT, is scheduled to be under construction by the spring of 2006 with completion expected by the end of 2007. Without this legislation, it is unlikely that this plant, as well as others around the Nation, would be able to be built. That would be very unfortunate.

The area around Cove Fort has one of the largest, proven geothermal resources in the Nation. There are 3,000 contiguous acres of leased land associated with the project now on the drawing boards. At 2,000 feet underground, the geothermal resource there is relatively shallow and is considered by most geologic experts to be one of the largest underground hot water reservoirs in North America. A leading geothermal engineering company recently issued a report indicating that the Cove Fort hot water resource can support and sustain power production in excess of 100 megawatts.

Utah is but one State with geothermal resources that can help lead our Nation toward energy independence. Other States with considerable geothermal resources include Nevada, California, Montana, Washington, Oregon, Idaho, Wyoming, Colorado, North Dakota, South Dakota, Nebraska, Arizona, New Mexico, Texas, Pennsylvania, West Virginia, Louisiana, Hawaii, and Kansas. We need to get the process of developing these resources started, and the bill I am introducing today would make sure that happens.

This legislation would provide the necessary boost to the development of our geothermal energy resources as well as all other renewable energy resources available to our Nation. I urge my colleagues to join me by cosponsoring this bill.

Mr. President, I rise today to introduce a bill, S. 1159, to make permanent a provision under subpart F of the Internal Revenue Code regarding active financial services income earned abroad. I am joined in this effort by my colleagues Senators Baucus, Smith, Schumer, Crapo, Lott, Kyl, and Lincoln. Under current law, the provision will expire at the end of next year.

This legislation would ensure that U.S. financial services firms and U.S. manufacturing companies with financial services operations are subject to U.S. tax on income from their active overseas financial services operations only when such earnings are sent home to the U.S. parent company. As my colleagues know, this is the treatment provided under the U.S. tax law for other active business income earned overseas. Our legislation simply extends, on a permanent basis, the expiring provision that ensures this same treatment for the financial services industry.

The permanent extension of this provision is critically important in today's global marketplace. Over the last few years, the financial services industry has seen technological and global changes that have altered the very nature of the way these corporations do business, both here and abroad. The U.S. financial industry is a worldwide leader that plays a pivotal role in maintaining confidence in the international marketplace and positively contributes to the U.S. international trade balance. We believe it is essential that our tax laws not impose anti- competitive burdens on this important U.S. industry.

If we allow the active financial services provision to lapse, U.S. companies would have to pay both local tax and current U.S. tax on the financial services income they generate overseas. While some of this double taxation is often alleviated by the foreign tax credit, we all know that this system works imperfectly. The result is that U.S. firms end up with a cost that is not borne by their European and Asian competitors, because companies based in these areas do not face current home country taxation on financial services income. In an industry where companies compete on price and a few basis points can mean the difference between getting the business or losing it to a competitor, the imposition of this additional tax cost on U.S.-based companies would translate into a competitive disadvantage for U.S. companies and a competitive advantage for their foreign counterparts. Given the thousands of U.S. jobs at stake, many of them in Utah, we do not believe our tax policy should allow this to happen.

While this provision may seem far removed from the average Utahn or the average American, I can assure you that this is not true. For example, the Salt Lake City area serves as the headquarters location for the banking operations of American Express Centurion Bank and American Express Bank, FSB, which are important parts of the worldwide American Express Card system. Salt Lake City is also the headquarters of American Express Travelers Cheques, with its Utah facility servicing Travelers Cheques clients on a worldwide basis. Thousands of Utahns are employed by these companies.

These businesses are tied to the international marketplace through the competitive strength of the American Express global franchise. For American Express and other U.S. companies to compete on par with their foreign competitors, the U.S. tax rules need to provide fair and equitable treatment of their overseas operations. To the extent foreign competitors can take business away from U.S. firms because of an uneven playing field, U.S. jobs are at risk.

The bill we are introducing today would provide equitable and consistent tax treatment for this important component of our economy. Making this provision permanent would provide American companies much- needed stability. The current provision has been renewed several times, most recently for 5 years in the Job Creation and Worker Assistance Act of 2002. Our ``on-again, off-again'' habit of extensions prevents U.S.- based firms from competing fully in the global marketplace by interfering with their ability to make business decisions and plan on a long-term basis. The permanent extension of this subpart F provision would ensure that the U.S. financial services industry is on a competitive footing with their foreign-based competitors and would provide tax treatment that is consistent with the tax treatment accorded other U.S. businesses.

The Congress and the administration took an important step toward modernizing our international tax rules with the enactment of the American Jobs Creation Act of 2004. The legislation we introduce today furthers that act's goals of ensuring that American firms can compete in the 21st century economy.

I urge my colleagues to support this important bill and ask that the text of the bill be printed in the Record.

Mr. President, I rise today to introduce the Oil Shale and Tar Sands Development Act of 2005. In doing so, I would like to thank Senator Robert Bennett and Senator Wayne Allard for cosponsoring this legislation.

It could not be any more apparent to Americans when we pay to fill up our cars that this country is in need of a strong, comprehensive energy strategy. Our citizens recognize that there is a shortage of petroleum, and that that shortage is driving up prices.

American consumers have increased their demand for oil by 12 percent in the last decade, but oil production has grown by less than one half of one percent. Is it any wonder we rely on foreign countries for more than half our oil needs? We import 56 percent of our oil today, and it's projected to be 68 percent within 20 years.

On a larger scale, global demand for oil is growing at an unprecedented pace--about two and half million barrels per day in 2004 alone. However, while global oil production is increasing, the discovery of new oil reserves is falling dramatically. Moreover, trends indicate that the global thirst for petroleum will continue to grow, especially in Asia.

Last month, Federal Reserve Chairman Alan Greenspan stated, ``Markets for oil and natural gas have been subject to a degree of strain over the past year not experienced for a generation. Increased demand and lagging additions to productive capacity have combined to absorb a significant amount of the slack in energy markets that was essential in containing energy prices between 1985 and 2000.''

We are quickly heading into a global energy crunch, and our lack of sufficient oil supply at home will give us little or no buffer against it. Increasing our domestic oil reserve is imperative both from an economic and a national security perspective.

I am pleased to report to my colleagues today that a solution is available.

It is a little known fact that the largest hydrocarbon resource in the world rests within the borders of Utah, Colorado, and Wyoming. I know it may be hard to believe, but energy experts agree that there is more recoverable oil in these three States than there is in all the Middle East. In fact, the U.S. Department of Energy estimates that recoverable oil shale in the western United States exceeds one trillion barrels and is the richest and most geographically concentrated oil shale and tar sands resource in the world.

This gigantic resource of oil shale and tar sands is well known by geologists and energy experts, but it has not been counted among our Nation's oil reserve because it is not yet being developed commercially. Companies have been waiting for the Federal Government to recognize publicly the existence of this resource as a potential reserve and to allow industry access to it.

This bill would give them that chance.

Some might ask why we have not yet developed these resources if doing so could have such a profound economic potential?

I understand why we have been so hesitant to develop this resource in the past. During the 1970s, we saw a very large and expensive effort begin in western Colorado to develop oil shale there. When the price of oil dropped dramatically, though, the market for oil shale went bust and the region suffered an economic disaster.

We should never forget that experience.

Much has changed since the 1970s, and it would be senseless to continue to ignore the huge potential of this resource. I think there has been a mind set within the government and the local communities resulting from the Colorado boom and bust experience that developing this resource would be risky. The fact is, developing this energy resource is no more risky than producing oil offshore or in the Arctic. It is certainly less risky than continuing to rely on oil from the Middle East or from other foreign competitors.

We need to remember that our past failure in this area was not necessarily a failure of technology, but rather an inability to sustain this technology economically because of a very large slump in gas prices. Today's economics and advances in technology combine to provide the right scenario to begin the development of the world's largest untapped oil resource.

Skeptics might ask how we know that the price of oil won't plummet, causing the problems of the 1970s all over again? The world is now reaching peak oil production of conventional oil. With the tremendous growth in India and Asia, and the accompanying need for oil, experts predict there will be little economic incentive for prices to drop. This is a new scenario for the world, and it forces us to shift our focus to unconventional resources.

We have already seen this shift in focus by the government of Alberta, Canada. Alberta recognized the potential of its own tar sands deposits and set forth a policy to promote their development. As a result, Canada has increased its oil reserves by more than a factor of 10, going from a reserve of about 14 billion barrels to its current reserve of 176 billion barrels in only a few years. And just think we are sitting on one trillion barrels, more than five times what Canada has.

I think it's outrageous that Utah imports about one-fourth of its oil from Canadian tar sands, even though we have a very large resource of those very same tar sands in our own State sitting undeveloped. The government of Alberta, which owns the resource, has moved forward in leaps and bounds, while the United States has yet to take even a baby step toward developing our untapped resource.

Our proposed legislation looks to the Alberta model to help the United States move toward greater energy independence. The Oil Shale and Tar Sands Development Act represents a necessary shift by our government from an almost complete reliance on conventional sources of oil to our vast unconventional resources, such as tar sands and oil shale.

In drafting this legislation, we have been mindful of the environment and of States' water rights. We live in a different world than when these resources were first developed. Unlike 30 years ago, we now have the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation, and Liability Act, the

National Environmental Policy Act, and the Mining Reclamation Act. Also, new technologies make the effort much cleaner and require less water than in the past. Industry understands that any water it needs will have to be acquired according to State law and according to existing water rights.

Let me talk, for a moment, about the specific provisions in our bill. S. 1111 would establish an Office of Strategic Fuels tasked with, among other things, the development of a five-year plan to determine the safest and steadiest route to developing oil shale and tar sands. The bill would also establish a mineral leasing program in the Department of the Interior to provide access to this resource.

Recognizing the tremendous national interest in this resource, our legislation provides a number of programs to encourage oil shale and tar sands development, including Federal royalty relief, Federal cost shares for demonstration projects, advanced procurement agreements by the military, and tax relief through the expensing of new equipment and technologies related to oil shale and tar sands development.

The size of our nation's energy challenge is enormous, but in Utah, Colorado, and Wyoming we have an answer that more than meets the challenge. This bill moves us down that path. I urge my colleagues to join us in our effort to help the United States open the door new frontier for domestic energy.

Mr. President, I rise today to introduce the Oil Shale and Tar Sands Development Act of 2005. In doing so, I would like to thank Senator Robert Bennett and Senator Wayne Allard for cosponsoring this legislation.

It could not be any more apparent to Americans when we pay to fill up our cars that this country is in need of a strong, comprehensive energy strategy. Our citizens recognize that there is a shortage of petroleum, and that that shortage is driving up prices.

American consumers have increased their demand for oil by 12 percent in the last decade, but oil production has grown by less than one half of one percent. Is it any wonder we rely on foreign countries for more than half our oil needs? We import 56 percent of our oil today, and it's projected to be 68 percent within 20 years.

On a larger scale, global demand for oil is growing at an unprecedented pace--about two and half million barrels per day in 2004 alone. However, while global oil production is increasing, the discovery of new oil reserves is falling dramatically. Moreover, trends indicate that the global thirst for petroleum will continue to grow, especially in Asia.

Last month, Federal Reserve Chairman Alan Greenspan stated, ``Markets for oil and natural gas have been subject to a degree of strain over the past year not experienced for a generation. Increased demand and lagging additions to productive capacity have combined to absorb a significant amount of the slack in energy markets that was essential in containing energy prices between 1985 and 2000.''

We are quickly heading into a global energy crunch, and our lack of sufficient oil supply at home will give us little or no buffer against it. Increasing our domestic oil reserve is imperative both from an economic and a national security perspective.

I am pleased to report to my colleagues today that a solution is available.

It is a little known fact that the largest hydrocarbon resource in the world rests within the borders of Utah, Colorado, and Wyoming. I know it may be hard to believe, but energy experts agree that there is more recoverable oil in these three States than there is in all the Middle East. In fact, the U.S. Department of Energy estimates that recoverable oil shale in the western United States exceeds one trillion barrels and is the richest and most geographically concentrated oil shale and tar sands resource in the world.

This gigantic resource of oil shale and tar sands is well known by geologists and energy experts, but it has not been counted among our Nation's oil reserve because it is not yet being developed commercially. Companies have been waiting for the Federal Government to recognize publicly the existence of this resource as a potential reserve and to allow industry access to it.

This bill would give them that chance.

Some might ask why we have not yet developed these resources if doing so could have such a profound economic potential?

I understand why we have been so hesitant to develop this resource in the past. During the 1970s, we saw a very large and expensive effort begin in western Colorado to develop oil shale there. When the price of oil dropped dramatically, though, the market for oil shale went bust and the region suffered an economic disaster.

We should never forget that experience.

Much has changed since the 1970s, and it would be senseless to continue to ignore the huge potential of this resource. I think there has been a mind set within the government and the local communities resulting from the Colorado boom and bust experience that developing this resource would be risky. The fact is, developing this energy resource is no more risky than producing oil offshore or in the Arctic. It is certainly less risky than continuing to rely on oil from the Middle East or from other foreign competitors.

We need to remember that our past failure in this area was not necessarily a failure of technology, but rather an inability to sustain this technology economically because of a very large slump in gas prices. Today's economics and advances in technology combine to provide the right scenario to begin the development of the world's largest untapped oil resource.

Skeptics might ask how we know that the price of oil won't plummet, causing the problems of the 1970s all over again? The world is now reaching peak oil production of conventional oil. With the tremendous growth in India and Asia, and the accompanying need for oil, experts predict there will be little economic incentive for prices to drop. This is a new scenario for the world, and it forces us to shift our focus to unconventional resources.

We have already seen this shift in focus by the government of Alberta, Canada. Alberta recognized the potential of its own tar sands deposits and set forth a policy to promote their development. As a result, Canada has increased its oil reserves by more than a factor of 10, going from a reserve of about 14 billion barrels to its current reserve of 176 billion barrels in only a few years. And just think we are sitting on one trillion barrels, more than five times what Canada has.

I think it's outrageous that Utah imports about one-fourth of its oil from Canadian tar sands, even though we have a very large resource of those very same tar sands in our own State sitting undeveloped. The government of Alberta, which owns the resource, has moved forward in leaps and bounds, while the United States has yet to take even a baby step toward developing our untapped resource.

Our proposed legislation looks to the Alberta model to help the United States move toward greater energy independence. The Oil Shale and Tar Sands Development Act represents a necessary shift by our government from an almost complete reliance on conventional sources of oil to our vast unconventional resources, such as tar sands and oil shale.

In drafting this legislation, we have been mindful of the environment and of States' water rights. We live in a different world than when these resources were first developed. Unlike 30 years ago, we now have the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation, and Liability Act, the

National Environmental Policy Act, and the Mining Reclamation Act. Also, new technologies make the effort much cleaner and require less water than in the past. Industry understands that any water it needs will have to be acquired according to State law and according to existing water rights.

Let me talk, for a moment, about the specific provisions in our bill. S. 1111 would establish an Office of Strategic Fuels tasked with, among other things, the development of a five-year plan to determine the safest and steadiest route to developing oil shale and tar sands. The bill would also establish a mineral leasing program in the Department of the Interior to provide access to this resource.

Recognizing the tremendous national interest in this resource, our legislation provides a number of programs to encourage oil shale and tar sands development, including Federal royalty relief, Federal cost shares for demonstration projects, advanced procurement agreements by the military, and tax relief through the expensing of new equipment and technologies related to oil shale and tar sands development.

The size of our nation's energy challenge is enormous, but in Utah, Colorado, and Wyoming we have an answer that more than meets the challenge. This bill moves us down that path. I urge my colleagues to join us in our effort to help the United States open the door new frontier for domestic energy.

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

Mr. President, over the last several days we have debated some of the most important issues that most of the Members will ever face. Should the same powerful tool, such as the filibuster, that we have long used in the legislative process be part of the confirmation process to defeat a President's judicial nominees? That is a big question. Can the Senate's role of advice and consent regarding judicial nominations be exercised equally by either the majority or minority of Senators? The answer to each of these questions is no.

America's Founders designed the Senate without the ability to filibuster anything at all. The filibuster became available later but was restricted to the legislative process which we control. It was not part of the appointment process which the President controls. Allowing a minority of Senators to capture this body's role of advice and consent will allow that minority to hijack the President's power to appoint judges. I admit that we have control of the Executive Calendar, but the President has rights in that calendar, too. We cannot hijack the President's power to appoint judges. Doing so distorts the balance the Constitution establishes and mandates. That situation should not stand.

I urge my friends, Senators from the minority, to abandon their destructive course and return to the tradition we followed for more than two centuries. The Senate, acting through a majority, checks the President's power to appoint by voting on whether to consent to those appointments. You will notice it is the Senate--not the minority--who does that check. Any Senator may vote against any nominee for any reason, but we must vote. We followed that tradition for more than 200 years, and we should recommit ourselves to it now.

If the minority insists on distorting the Constitution's balance and rejecting Senate tradition, then I believe the Senate must firmly reestablish that tradition by exercising our constitutional authority to determine our own rules and procedures. If the minority will not exercise the same self-restraint this body exercised for the last two centuries, then I believe the Senate must vote to return formally to our tradition. It is surely not a sign of our political culture that we have to enforce by majority vote what we once offered by principle and self-restraint. But the Constitution's balance is too important to allow a minority to erode our principles and past practices.

The problem and the solution each have their own frame of reference drawn from the Constitution. The frame of reference for evaluating these judicial filibusters is the separation of powers into three branches. The frame of reference for the solution to this judicial filibuster crisis is the Constitution's grant of authority for us, the Senate, to determine how we want to conduct Senate business.

Let me first address the judicial filibuster crisis through the lens, the frame of reference, of the separation of powers. In Federalist No. 47, James Madison wrote of the separation of powers that ``no political truth is certainly of greater intrinsic value or

stamped with the authority of more enlightened patrons of liberty.'' Two points are particularly important here. First, the separation of powers is exclusive. The powers assigned to one branch are denied to the others.

Like our Federal charter, each State constitution also divides the legislative, executive, and judicial branches into separate branches. More than two-thirds of them, however, go even further and make the exclusive nature of separation explicit. They affirmatively prohibit each branch from exercising the powers assigned to the others. The separation of powers is that important.

While each branch may not exercise the powers given to the others, we can check the powers given to the others. A check on another branch's power is a safeguard. It is not a separate coequal power. It is neither separate from nor as significant as the power being checked. Nomination and appointment of judges is described in article II which outlines the President's power. Not a word is found in article I which describes our powers.

The second point about the separation of powers is equally important. Just as the powers belong to the branches, checks and balances are exercised by the branches. The President, to whom the Constitution gives executive power, can check Congress's legislative power through the veto that he has a right to exercise. He cannot delegate it to someone else in the executive branch. Similarly, the Constitution assigns the role of advice and consent to the Senate, not just to the minority, to the Senate.

The question raised by the current filibuster campaign, however, is this: What is the Senate, the minority or the majority? I do not want to get too technical, but these are basic civics principles that apply to legislative bodies everywhere that you can find in most high school textbooks. We must have what we call a quorum, a minimum number of Senators present to be open for business. Senate rule VI defines a quorum as a ``majority of Senators duly chosen and sworn.'' Today that means 51 Senators. Unless the Constitution that created this body says otherwise, when a majority of those Senators acts, it is the Senate itself that acts.

This is no different from the Supreme Court. When a majority of its members votes the same way, we say it is the Court that has decided the case.

Only the Senate itself can exercise its constitutional role of advice and consent on the President's judicial nominations. That is, only a majority of Senators can exercise that role. I make this point so strongly because the minority is claiming the right to exercise this body's role of advice and consent strictly by the minority.

Last Thursday, the Senator from Massachusetts, Mr. Kerry, on the Senate floor, charged that ``the Republican leadership is determined to deny the minority the right to hold the executive responsible for lifetime appointments to the judiciary.''

He was not the first to make this argument. We have heard for a long time now from many Senators who support these filibusters that the Senate rejects a nomination not when the majority has voted it down but when the minority has prevented a final confirmation vote, even though there is a bipartisan majority for the nominee. I should say in this case nominees.

The minority does not check the President's power. The Senate itself does. And that means a majority of Senators checks the President's power. When the minority has prevented a confirmation vote, the minority has prevented the Senate from exercising its role of advice and consent altogether. I do not speak primarily of the majority or minority party. I speak of the numerical majority that is required in order for the Senate to act at all. The vast majority of judicial nominations are confirmed either by unanimous consent or by overwhelming margins on rollcall votes. The number of truly controversial, hotly contested judicial nominations is small. Still at least 18 Members of this body have voted against a judicial nomination of their own party.

If the case against some of these nominees is so strong--and we have heard a great hue and cry about how some of them are out of some sort of mainstream--then Senators may do so again. But the prospect of being on the losing side of a small number of confirmation votes does not justify turning these fundamental principles of separation of powers inside out. It does not justify the minority hijacking the Senate's role of advice and consent so it can hijack the President's power to appoint judges.

Yet that is indeed what these filibusters are attempting to do. Defeating a vote to end debate can serve a laudable, temporary purpose of ensuring full and vigorous debate. That full and vigorous debate can help the Senate make a more informed confirmation decision. But these recent unprecedented, leader-led filibusters defeat all votes to end debate for the purpose of preventing confirmation of these nominations altogether. Doing so turns the separation of powers on its head.

Mr. President, the frame of reference, the organizing principle for evaluating these judicial filibusters, is the separation of powers. I think the case is compelling that the judicial filibuster campaign underway today, by which the minority tries to commandeer the Senate's role of advice and consent so they can wrongly attempt to trump the President's constitutional authority to appoint judges, violates that principle and cannot be allowed to continue.

If the minority will not relent and return to the tradition by which the Senate, through a majority, exercises its role of advice and consent, then I believe the majority must act to restore that tradition. The frame of reference for solving this judicial filibuster crisis is the Senate's constitutional authority to determine our own rules and procedures.

Just as the Constitution establishes a system of self-government for the Nation, it establishes a system of self-government for the Senate. Subject always to the Constitution itself, we choose for ourselves how we want to do business. It may not always be nice, neat, and orderly, but it is up to us to decide. One of the cliches that the judicial filibuster proponents dreamed up is the cry that any solution to this crisis would require ``breaking the rules to change the rules.'' Presumably, that catchy little phrase refers to the fact that invoking cloture on an amendment to the text of our written rules requires not just 60 votes but two-thirds of the Senators present and voting. This argument is, I suppose, intended to make people think our written rules are the only guide for how the Senate operates.

Most of our citizens may not know one way or the other. Nobody can fault them for not being schooled in the peculiar art of Senate procedure. But my fellow Senators certainly know the answer.

Every Senator in this body knows that the Standing Rules of the Senate are only one of several things that guide how we do business. The solution to the judicial filibuster crisis which the majority leader, Dr. Frist, will pursue will neither break the rules nor change the rules. The Standing Rules of the Senate will read the same next week as they did last week. Instead, the solution we will utilize is a parliamentary ruling by the Presiding Officer, something that is at least as important as our written rules for the way we conduct our day- to-day business.

When a Senator asks the question of procedure or raises a point of order, the Presiding Officer's answer to that question, or his ruling on that point of order, becomes a precedent for the Senate. These parliamentary precedents guide what we do as much as our written rules. Let me stress something very important at this point. The Constitution gives the role of advice and consent to a majority, not to a minority.

Similarly, the Constitution gives the authority to decide how the Senate does business to the Senate, not to the Presiding Officer.

There are no monarchs or dictators in America, or in the United States Senate. Should the Presiding Officer rule that the Senate may proceed to vote on judicial nominations after sufficient debate, that will become a parliamentary precedent guiding this body only after a majority of Senators votes to make it so.

As I have discussed before in the Senate, this mechanism might better be called the Byrd option because, when he was majority leader, the distinguished Senator from West Virginia, Mr. Byrd, repeatedly used it to change how the Senate does business.

The Senator from West Virginia knows that I have the greatest respect for him. I heard him on the Senate floor again this afternoon. But as I will

describe in the next few minutes, I believe my friend from West Virginia doth protest too much.

In 1977, for example, then-Majority Leader Byrd used this mechanism to eliminate what was called the postcloture filibuster. If the Senate voted to invoke cloture on a bill, rule XXII imposed a 1-hour debate limit on each Senator. Senators could get around that limit, however, by introducing and debating amendments. Rule XXII allowed this practice, but the majority leader opposed it--Byrd. He made a point of order against it, the Presiding Officer ruled in his favor, and a simple majority of Senators voted to back up the ruling.

Nearly two decades later, the Senator from West Virginia reflected on how he used the Byrd option in 1977. Let me refer to the chart. He described it this way:

I have seen filibusters. I have helped to break them. There

are few Senators in this body who were here in 1977 when I

broke the filibuster on the natural gas bill.

I was here, by the way. To continue:

I asked Mr. Mondale, the Vice President, to go please sit

in the chair; I wanted to make some points of order and

create some new precedents that would break these filibusters

And the filibuster was broken--back, neck, legs, and arms. .

. . So I know something about filibusters. I helped to set a

great many of the precedents that are in the books here.

So don't say we are trying to change the rules. We are following the Byrd rule that was set four times as he was majority leader. He changed Senate procedures without changing Senate rules.

The Senator from West Virginia did it again in 1979. Rule XVI explicitly states that the Senate itself must decide whether amendments to appropriations bills are germane. Then-Majority Leader Byrd made a point of order that the Presiding Officer may decide that question instead. The Presiding Officer ruled in his favor and a majority of Senators voted to affirm the ruling. Once again, a parliamentary ruling changed Senate procedures without changing Senate rules.

It happened again in 1980. As we have discussed, rule XXII requires 60 votes to invoke cloture, or end debate, on any matter pending before the Senate. This includes bills or nominations, but it also includes motions to proceed to those bills or nominations.

Then-Majority Leader Byrd wanted the Senate to confirm an individual nomination. He made a single motion to go into executive session to consider a nomination, a step that is not debatable under our rules, and to proceed to an individual nomination, a step that was debatable.

This time, the point of order came from a Republican Senator, arguing that this procedural two-step was improper. The Presiding Officer agreed, ruling against what Majority Leader Byrd was trying to do. He still prevailed when a majority of Senators voted to overturn the Presiding Officer's ruling. Doing so eliminated the filibuster on a motion to proceed to a specific nomination.

Mr. President, this chart shows that seven Democratic Senators serving in this body today voted to eliminate those nomination-related filibusters. They proved not only that the Byrd option is legitimate, but also that it can be used to limit debate. I leave it to these Senators to explain how they could vote to eliminate nomination-related filibusters in 1980 but support nomination filibusters today.

This 1980 example is particularly relevant because it utilized a parliamentary ruling to eliminate a nomination-related filibuster--not a filibuster of the nomination itself but a filibuster on the motion to proceed to the nomination. That is, of course, a distinction without a difference. Either one keeps a nomination from final approval.

Mr. President, still other examples exist, but I will not go into more detail. Suffice it to say that using parliamentary rulings to change Senate procedures without changing Senate rules is a well- established method for the Senate to govern itself. Should the majority leader, Senator Frist, utilize it, he will be on solid ground. He will simply be relying upon the precedent that his predecessor, Senator Byrd, helped put on the books.

If the majority leader does utilize the Byrd option, nobody will be able to suggest, let alone charge, he is doing so precipitously. He has been patient, methodical, and even cautious when it comes to this important matter. Far from the image of trigger-happy warriors being used in some interest ads out there, the majority leader will utilize the Byrd option only after trying every conceivable alternative first, and he has done so.

The minority has had every opportunity to do what it says it wants to do; namely, debate these nominations. The nominees being filibustered, for example, include Texas Supreme Court Justice Priscilla Owen, nominated 1,474 days ago to a judicial position that has been vacant for more than 8 years--more than 8 years and considered a judicial emergency.

Justice Owen received a unanimous ``well-qualified'' rating from the American Bar Association, the highest rating they give, which our Democratic colleagues once called the gold standard for evaluating nominees. Let me repeat that. She was rated unanimously as ``well- qualified'' by the American Bar Association, which is not a conservative organization, and some are calling her ``out of the mainstream.'' Give me a break.

Justice Owen was at the top of her law school class. She had the highest score on the Texas bar exam in 1977. She is supported by 15 past presidents of the Texas Bar Association, both Democrats and Republicans, and was endorsed for reelection by virtually every major newspaper in the State of Texas. Out of the mainstream? My gosh, she defines the mainstream.

I mention Justice Owen as an example, though her opponents use the same tactics against nominee after nominee. They claim that Justice Owen is what they call an extremist, or outside of the mainstream, most often by tallying up winners and losers in her judicial decisions. They say she rules too often on this side in criminal cases, too often on that side in civil cases, not enough for this or that political interest.

Whether Justice Owen is controversial, whether anybody considers her inside or outside of some kind of mainstream, these may be reasons to vote against her confirmation, not to refuse to vote at all. By the way, we have Senators on the Judiciary Committee--Democratic Senators-- who believe that any business ought to be automatically found against, even if they are right under the law, that anybody who may be an unfortunate person ought to be found for even though they are wrong in the law.

That is not the way the law works. They criticize Justice Owen because, even though she has upheld the weak and the oppressed in many decisions in the Texas Supreme Court, she has upheld the law sometimes to the lament of those who think the weak and oppressed should win no matter what the law says. That is all you can ask of a judge.

The Judiciary Committee has more than once approved her nomination, and she deserves a vote in the Senate. But rather than give her a fair vote, those fearing they will lose are blocking it with a filibuster.

On April 8, 2003, Senator Bennett, my colleague from Utah, asked the then-assistant minority leader, Senator Reid, how much time the Democrats would require to debate the nomination fully. This is what he said:

There is not a number of hours in the universe that would

be sufficient [to debate this nominee].

They did not want to debate Justice Owen, they wanted to defeat her. Debate was not a means to the end of exercising advice and consent. It was an end in itself to prevent exercising advice and consent. The majority leader has made offer after offer after offer of more and more time, hoping that the tradition of full debate with an up-or-down vote would prevail. That hope is fading, as Democrats have rejected every single offer.

Finally, last month, the minority leader admitted that ``this has never been about the length of the debate.'' That is what the minority leader said. It has never been about the length of the debate. That was said April 28, 2005.

Unanimous consent is the most common way we structure how we consider bills and nominations. Because the Democrats rejected that course, Majority Leader Frist was forced to turn in March 2003 from seeking unanimous consent to the more formal procedure of motions to invoke cloture. During the 108th Congress, we took 20 cloture votes on 10 different appeals court

nominations. More than 50, but fewer than 60, Senators supported every one of these motions.

In other words, there was bipartisan support for a vote up or down for each of those nominees. That was enough to confirm but not enough to end debate under the filibuster rules, misapplied here. The circle was complete, and the minority's strategy of using the filibuster to prevent confirmation of majority-supported judicial nominations was in full swing. Still the majority leader held off, resisting the growing calls to implement a deliberate solution to this unprecedented, unfair, and, frankly, outrageous filibuster blockade.

The election returns provided more evidence that the American people oppose using the filibuster to prevent fair up-or-down votes on judicial nominations. But hope that the voice of those we serve would change how we serve them was soon shattered. The minority made it clear that they would continue their filibuster campaign.

The minority can say this is a narrow effort focused on a few appeals court nominees. It is not. This is about the entire judicial confirmation process. It is about rigging that process so the minority can do what only the majority may legitimately do in our system of Government: determine how the Senate exercises its role of advice and consent.

It is the Constitution, not the party line or interest group pressure, not focus groups or interest group ad campaigns, that should guide us here. I have been told, for example, and I hope it is not true, that my friend from Nevada, the minority leader, may appear in a television ad created and paid for by the Alliance for Justice, one of the rabid leftwing groups involved in this obstruction campaign. I hope he will not do that. I think that would be regrettable. They are part of the problem here. They have virtually been against anybody for the circuit courts of appeal and many of the former nominees for the Supreme Court of the United States of America.

The Constitution assigns the nomination and appointment of judges to the President, not to the Senate. The Senate checks that power by deciding whether to consent to appointment of the President's nominees. We exercise this role by voting on confirmation. As such, filibusters designed to prevent confirmation of majority-supported judicial nominations undermine the separation of powers.

The Constitution helps us both evaluate the problem and highlight the solution. The Constitution gives the Senate authority to determine how we will do our business. That includes not only our written rules but also parliamentary precedents that change procedures without changing those rules.

Our Democratic colleagues have had literally dozens of opportunities to return to our confirmation tradition of up-or-down votes for judicial nominations reaching the Senate floor. They have chosen the path of confrontation rather than that of cooperation. They exercised the true nuclear option by blowing up two centuries of tradition. If the majority leader utilizes the Byrd option, it will truly be as a last resort, and it will be a constitutional means of solving an unconstitutional problem.

I go back in time because I was here when Senator Byrd was the minority leader. He had a tremendous majority of Democrats on the floor. When Ronald Reagan was President, he never once used the filibuster to stop Ronald Reagan's nominees, even though some of those nominations gave him and other Democrats tremendous angst. He utilized the power to vote against them. Whether he is right or wrong is almost irrelevant here. The fact is that he did what 214 years of Senate tradition required: he allowed those nominees to go ahead and have a vote. And, after all, that is what we need to do here.

What is wrong with giving these circuit courts of appeal nominees who have bipartisan support and the support of the American Bar Association simple up-or-down votes? If you do not agree with them, you have the right and power to vote against them, and that is the proper way to handle it. Let's not throw 214 years of tradition down the drain and, of course, let's not blow up the Senate if we do not get our way.

Mr. President, I notice the distinguished Senator from Montana is here. I yield the floor.

Will the assistant majority leader yield for a question?

Just to make it clear, there are two calendars in the Senate. One is the legislative calendar and the other is the Executive Calendar; is that correct?

The legislative calendar is the main calendar for the Senate, and it is solely the Senate's; is that correct?

But the Executive Calendar involves nominations through the nomination power granted by the Constitution to the President of the United States, and the Senate has the power to advise and consent on that nomination power, is that right, to exercise that power?

What we are talking about here is strictly the Executive Calendar, ending the inappropriate filibusters on the Executive Calendar and certainly not ending them on the legislative calendar?

Well, our Democratic friends argue--just to change the subject a little bit here--they argue we have to institute the judicial filibuster to maintain the principle of checks and balances as provided in the Constitution. But unless my recollection of events is different, this contention does not fit with the historical record.

Isn't it the case that the same party has often been in the White House and in the majority in the Senate, such as today, but in the past, while the same party has controlled the White House and been a majority in the Senate, neither party, Democrats or Republicans, over the years, has filibustered judicial nominations until this President's term?

Right.

You got that right.

Not quite right because the filibuster rule did not come into effect until 1917.

Well, Senators had the right to speak, and they could speak.

So in a sense it was not even known as a filibuster at that time. Nevertheless, they had the right to speak.

To follow up on what you just said, we heard repeatedly from liberal interest groups that we must maintain the filibuster to maintain ``checks and balances.'' My understanding of the Constitution's checks and balances is that they were designed to enable one branch of Government to restrain another branch of Government. Are there really any constitutional checks that empower a minority within one of those branches to prevent the other branch from functioning properly?

One last point. The 13 illustrations that the Democrats on the other side have given that they have said are filibusters, if I recall it correctly, 12 of those 13 are now sitting on the Federal bench, as you have said; is that correct?

In other words, they are sitting on benches today?

So the cloture votes in those instances were floor management devices to get to a vote so we could vote those nominations to the bench?

So they were hardly filibusters in that sense?

And spend a lot of time on the Senate floor.

Advocating the step that we should invoke cloture and give these people a vote up or down?

One last thing. As to the 13, 12 of them are sitting on the bench.

The 13th that they mentioned was the Fortas nomination. In that case, there was the question of whether there was or was not a filibuster. But let's give them the benefit of the doubt and say there was a filibuster, since there are those who do say there was, although the leader of the fight, Senator Griffin, at the time said they were not filibustering, that they wanted 2 more days of debate, and they were capable and they had the votes to win up or down--

He did. But what happened was there was one cloture vote, and it was not invoked. But even if you consider it a filibuster, the fact is, it was not a leader-led filibuster. It was a nomination that was filibustered--if it was a filibuster--almost equally by Democrats and Republicans.

That is right.

The important thing here is it was a bipartisan filibuster against a nominee by both parties, and in these particular cases, these are leader-led partisan filibusters led by the other party.

Will the Senator yield on that point?

The fact is, there have always been holdovers at the end of every administration. There were 54 holdovers at the end of the Bush 1 administration, and he was only there 4 years. We didn't cry and moan and groan and threaten to blow up the Senate over that. We recognized it was part of the process.

I have to say with regard to the holdovers that were there at the end of the Clinton administration, there were some which they could have gotten through, but there were like 18 that were withdrawn. Ten withdrew their names. Some were not put up again between the two administrations. There is no question that I tried to do the very best I could to give President Clinton every possible edge.

But this has always been the case. It isn't just this time. It happened with Democrats in control of the Senate and Republicans in control of the White House. I think that point needs to be made. I have heard a lot of moaning and groaning. I know my colleagues know I did everything in my power to accommodate them and help them.

Mr. President, I thank my colleague for his kind remarks, and other colleagues as well. I ask unanimous consent that I be given the original half-hour time and that the Democrats be extended an equal amount of time.

Mr. President, I appreciate my colleague from Alabama. He knows about as much as anybody who has ever sat on this side of the aisle. He has the sting of having been rejected by the Judiciary Committee Democrats when he was nominated for a Federal

judgeship years ago. I think that is pretty ironic. They knew he was good and that he could do the job. Now he is a sitting Senator who can no longer be ignored, and he has stood up and triumphed for so many good people through the years. I think it was kind of a God-given thing that he was rejected back then, so he could sit in the Senate and tell people the important aspects of the Federal judiciary we have been discussing. I personally love and appreciate him. He has been a great member of the Judiciary Committee and I have a lot of respect for him.

I have also been told that at the beginning of the session today, one of the leaders offered to discharge a number of judges from the committee, or judgeship nominees. I find that pretty ironic because at the end of the 108th Congress, when I attempted to discharge three nominees to the floor--Tom Griffith, our former counsel, nominated for the DC circuit; J. Michael Seabright, who was from Hawaii and was sponsored very strongly by the two Hawaiian Senators; and Paul Crotty, from New York, who was sponsored strongly by the two New York Senators--the Democrats opposed that and said this was extremely unprecedented, and they prevented me from doing so because they claimed ``proper order'' for all nominees.

Forgive me, Mr. President, if I find the recent Democratic request to discharge people they want to discharge--three Sixth Circuit nominees-- more than a little disingenuous. It is only done to try to make it look as though they are trying to cooperate when in fact they knew that could not be permitted. The leadership in the Senate will decide what judges come to the floor and we want all of them, including the three from Michigan.

Last week when the Judiciary Committee considered the asbestos bill, one of our Democratic colleagues referred to proposed amendments to that bill and said something very important: Let's debate them up or down. He said it the way the American people believe it, and that is debating and voting is what legislators do. Let's debate them and then vote them up or down.

The Senator offering that idea was my colleague from Vermont, Senator Leahy. He was speaking then about legislation, but he and other Democrats once insisted the Senate should follow the same principle as we evaluate the President's judicial nominations.

In October 1997, for example, he said on the Senate floor:

I hope we might reach a point where we as a Senate will

accept our responsibility and vote people up, vote them down.

Bring the names here. If we want to vote against them, vote

against them.

Of course, at that time, a Democratic President was in power. That may have been the difference between then and now.

It is always refreshing to see our fellow citizens from all over this great country coming here to sit up in the galleries and observe their Senate at work. Some of them with us today might actually be asking, Why is the Senator from Utah making such a big deal about something that is so obvious--votes up or down, that is. Many of our fellow citizens may be surprised to learn that some of the Senators they elected and sent to Congress are refusing to vote on nominations. They might share the sentiment of former Democratic leader Senator Tom Daschle when he said in 1999--of course, Clinton was President:

I find it simply baffling that a Senator would vote against

even voting on a judicial nomination.

That is what they are doing. I guess it makes a difference whether your President is President or whether the opposition President is President. I happen to think there are certain virtues that ought to be maintained, no matter what.

Those Senators on the other side are blocking votes because they know they will lose those votes. If we debate these nominees, America would better understand why we need judges who will interpret, not make, the law. Americans will see how these highly qualified judicial nominees meet that standard, and America will see that these nominees, every one of them, have a bipartisan majority support.

What is wrong with giving them a vote up or down? The political forces promoting an activist political judiciary oppose many of these nominees, and their strategy is simple. The Senate cannot confirm nominees if Senators cannot vote on them. We cannot vote if we cannot end debate. These filibusters use Senate rules to prevent ending debate, prevent taking a vote, and prevent confirmation of these judges. That is not only baffling, it is unprecedented. This is not a tangent, an academic issue, or a question that will 1 day be found in the game ``Trivial Pursuit Senate Edition.'' This issue is central to this debate, and our Democratic colleagues know it.

Some are so desperate to claim even one single solitary precedent for what they are doing that they stretch, twist, and morph the word ``filibuster'' beyond all recognition. They want the word ``filibuster'' to mean so many things that it ultimately means virtually nothing at all.

Unfortunately, these mischaracterizations of Senate history, tradition, and rules cynically exploit the fact that many of our fellow citizens have not mastered the particulars of Senate history, the peculiarities of Senate procedure, or the idiosyncrasies of the confirmation process. Misleading, confusing, patently false claims can easily take on a life of their own, echoed and repeated throughout the media, cyberspace, and even here on the Senate floor.

We all know it can take a long time for what is true to catch up with what is false. Judicial filibuster defenders who claimed that when the Senate voted to end debate on past judicial nominations, we were actually filibustering those nominations; that when we voted down debate and confirmed them, we were actually filibustering--poppycock. They want Americans to believe that ending debate then justifies refusing to end debate now. Poppycock. Or they claim that when the Senate voted to confirm judicial nominations in the past, we were actually filibustering those nominations when we voted to confirm them. That is how far they have gone to try and justify these inappropriate actions.

They want Americans to believe that confirming nominations then, as we did, justifies refusing to confirm them now. Those bizarre claims focus on what happens here on the Senate floor at the end of the judicial confirmation process. Sometimes judicial filibuster defenders on the other side have focused instead on what happens in the Judiciary Committee, an earlier phase in the process. Some appear willing to try anything to create a precedent for their filibusters. Some even claim that any nomination which is not audibly confirmed, no matter what the reason, no matter what the step in the process, has been filibustered. Giving a word any meaning you want may help make any argument you want to make, but it does not make that argument legitimate. This gimmick may have some public relations punch. It leads to cliches such as ``pocket filibuster'' or ``one-man filibuster,'' and creates villains, such as me. What kind of campaign would this be without a bogeyman? After all, I was chairman of the Judiciary Committee for 6 years under President Clinton.

Never mind that the Republican Senate confirmed 377 judges for President Clinton, just 5 short of the all-time confirmation record set by President Reagan. Bill Clinton was the second confirmation champion of judges in the history of this country, and he had 6 years when I was chairman. I wonder how that happened if I was so partisan.

Never mind that President Reagan had his own party controlling the Senate for 6 years while President Clinton had the other party, the Republicans, controlling the Senate for 6 of his years. So Reagan had his own party help him for 6 years. President Clinton only had his own party for 2 years, and yet he still came in just five votes shy of President Reagan. And if my recollection serves me correctly, he would have been three ahead of him had it not been for Democratic holds on their side. One Senator was not getting his; therefore, he would not let anybody else get theirs. It happened. Never mind facts such as that.

The assistant minority leader yesterday claimed every Clinton nomination that was not audibly confirmed was filibustered and that I personally buried them. My hand alone held back a confirmation wave of apparently mythic proportions. Look for a moment what it takes to believe every

unconfirmed nominee is a filibustered nominee. It requires believing dozens of nominees President Clinton himself withdrew were filibustered. Preposterous. President Clinton, for example, withdrew one of his court nominees fewer than 6 months after her nomination because of health concerns. Her nomination did not get out of the Judiciary Committee, did not receive a floor vote, and was not confirmed. But was she filibustered? They seem to think so.

Is her situation the same as Justice Priscilla Owen who has been waiting for more than 4 years and cannot get a floor vote because of a Democratic filibuster, a leader-led partisan filibuster, the first time in history?

This line that all unconfirmed nominees are filibustered nominees requires you to believe ill-founded arguments such as that. It also requires believing that the 28 nominations sent too late to be considered or which President Clinton chose not to resubmit were filibustered.

That is how they add, they double count. It is ridiculous. Preposterous is the word.

It requires believing that nominations not given hearings because of opposition by their home State Senators were filibustered. We have had that go on for years, whoever has been in power. Home State Senators have a lot of swat. The Judiciary Committee system that gives extra weight to the views of Senators from a nominee's home State has been in place in various forms for nearly a century. Democrats, as well as Republicans, use it. I do not hear the Democrats who now want to call these situations filibusters also calling to abolish that system of home State senatorial courtesy. They cannot have it both ways.

The majority leader, Senator Frist, recently offered a proposal that would not only address our concerns about the floor by ensuring up-or- down votes, but also address Democrats' concerns about the committee by guaranteeing reporting of nominees. The majority leader tried to do that. Democrats rejected that offer. They are not going to give up their rights in committee anymore than Republicans should give up their rights in committee.

But that is not filibustering, I can guarantee that. Either they think treatment of judicial nominees in the Judiciary Committee is a problem needing a remedy or they do not. They cannot have it both ways. Democrats know that many factors determining whether a nomination is approved by the Judiciary Committee are not simply up to the chairman's unilateral discretion. What galls me is some who have made the argument. One in particular this morning begged me to get his judges through, and I have to say there were real questions about his judges, but I put them through because they were nominated by the President. He came to me and asked that I get it done. I did it for countless Democrats in the 6 years I was chairman of the committee during the Clinton years, and they know it. They do not have any other arguments.

So what do they want to do? They want to vilify the chairman of the Judiciary Committee who has had to put up with all kinds of machinations in the Judiciary Committee from both sides, whoever the chairman is. Democrats know there are procedures in the Judiciary Committee and on the floor for forcing a committee chairman to act if Senators believe the chairman is dragging his feet and that those procedures were never used, never even attempted, while I was chairman. Why? Because they knew darn well I was trying to do the best I could.

They do not have any other arguments. They cannot justify their position. Democrats know these things. They also know that many of our fellow citizens do not. So the spin machine cooks up this tail that all unconfirmed nominees are filibustered nominees, attempting to make people believe there is some precedent, even a totally fictional precedent, for their current filibusters. Saying that ending a debate is the same as not ending a debate did not work. Saying that confirming nominations is the same as not confirming nominations did not work. Saying that President Clinton's near record confirmation total is evidence of unfair treatment by Republicans will not work either.

On Tuesday the distinguished Senator from Wisconsin, Mr. Feingold, was making a few other arguments. He pointed out that the text of the Constitution does not require an up-or-down confirmation vote for a judicial nomination.

Well, many of our colleagues on the other side of the aisle attack judicial nominees when they take the Constitution's text this seriously. But I am glad that the Senator from Wisconsin is doing so.

The word ``filibuster'' is not found in the Constitution, either. Nor are phrases such as ``unlimited debate,'' ``minority rights,'' or even ``checks and balances,'' as misused as those terms have been by the other side.

None of the phrases used by some to try to give these judicial filibusters a constitutional anchor are in the chartered text, the constitutional text. What the Constitution does say, however, is that the President has the power to nominate and appoint judges--not the Senate, the President has that power. Our role of advice and consent is a check on the President's power to appoint.

When the filibuster turns our check on the President's power into a weapon that hijacks the President's power, then, yes, it has indeed violated the design that is most certainly in the text of the Constitution, and that is what they are doing.

The Senator from Wisconsin also said the procedure the majority leader may use to prohibit judicial filibusters will mean changing the Senate rules by fiat. That is a variation on the Democratic mantra that this would break the rules to change the rules. That is a catchy little phrase but neither of its catchy little parts is true.

The Senate operates not only by its written rules but also by parliamentary precedence established when the Presiding Officer rules on questions of procedure asked by the Senators. What we call the constitutional option would seek such a ruling from the Presiding Officer. After sufficient debate, the Senate should vote on a judicial nomination. That is what the ruling would be. Senate precedents and procedures would change, but Senate rules would remain unchanged. No breaking of the rules, no changing of the rules.

Senators use the word ``fiat'' because it sounds bad and fits with the abuse of power theme probably born in some liberal focus group somewhere. The word attempts to give people a bad impression, but it should give them an even worse impression to know that it is patently false.

The Constitution gives authority over Senate rules and procedures to the Senate, not to the Parliamentarian or to the Presiding Officer but to the Senate. If the Presiding Officer rules on the question of procedure, it will not actually change Senate procedures until a majority of the Senators vote to do so.

Just as American self-government is radically different from monarchy, Senate self-government is radically different from fiat.

The Senator from Wisconsin said that whenever the Senate merely takes a cloture vote or a vote to end debate, a filibuster is always underway. That, too, is patently false.

Let me refer to this chart. This is what the Congressional Research Service said on April 22, 2005:

It is erroneous to assume that cases in which cloture is

sought are always the same as those in which a filibuster

occurs.

Let me repeat that.

It is erroneous to assume that cases in which cloture is

sought are always the same as those in which a filibuster

occurs.

Let me use two examples. Among President Clinton's most controversial nominees were Marsha Berzon and Richard Paez nominated to the U.S. Court of Appeals for the Ninth Circuit. Our colleague from New York, Senator Schumer, who has spoken many times on the floor on this issue, in November 2003 called these nominees ``very liberal,'' and, ``quite far to the left.'' Now, that is quite something coming from a Senator who has never been called even a little bit to the right.

On November 10, 1999, the majority leader at the time, Senator Lott, promised that he would bring these controversial nominations up for a confirmation vote no later than March 15, 2000, and that was at my request. He correctly said that I agreed with using the cloture vote to ensure that a confirmation vote occurred. In other words, it was used to get to a vote.

On March 8, 2000, that is exactly what we did. It was of a procedural floor management device. The first two names on the petition for the cloture vote happened to be Senator Lott and myself. We took that cloture vote to prevent a filibuster and to ensure an up-or-down vote. We prevented a filibuster. That vote occurred, and the Senate confirmed both nominees. They are today sitting Federal judges. Otherwise we would have kept going on and on on the Senate floor. We decided that is the way to get to a vote, and we did.

The Senator from Vermont, Mr. Leahy, said on Tuesday that the constitutional option which would use a parliamentary ruling to prohibit judicial filibusters would ``use majority power to override the rights of the minority.'' I have called this parliamentary approach the Byrd option because when Senator Byrd was the majority leader in the late 1970s and early 1980s, Senator Byrd used it to change Senate procedures. He did so regarding legislation and also regarding nomination-related filibusters.

In 1980, for example, then-Majority Leader Byrd wanted to prohibit filibusters with a motion to proceed to nominations, and they could do that back then, just as a confirmation vote cannot happen if debate does not end. Debate cannot start if the Senate cannot vote to proceed to that debate.

Today we hear that any limitation on debate, any restriction of the filibuster, strikes at the very heart of the essence of this institution. Maybe it was a different story back then when they were in control. When the Presiding Officer ruled against what Majority Leader Byrd was trying to do, he then appealed that ruling and the Senate voted to overturn it, effectively terminating those nomination-related filibusters. He knew how the vote was going to turn out in the end.

I remind my colleagues what my good Democratic friend from West Virginia said when he used the procedure to change the filibuster rule, on January 4, 1995, during the Clinton administration. He said:

I have seen filibusters. I have helped to break them. There

are few Senators in this body who were here [in 1977] when I

broke the filibuster on the natural gas bill. . . . I asked

Mr. Mondale, the vice president, to go please sit in the

chair; I wanted to make some points of order and create some

new precedents that would break these filibusters.

Then he said this:

And the filibuster was broken--back, neck, legs, and arms.

. . . So I know something about filibusters. I helped to set

a great many of the precedents that are on the books here.

Well, the Senator was candid. I personally admire him for it. On at least three other occasions, Majority Leader Byrd used a ruling by the Presiding Officer to change Senate procedures without changing the underlying Senate rules.

The Senator from Vermont says that using this very same mechanism today would be an outrageous trashing of minority rights. Yet he voted every time to support Majority leader Byrd's use of that mechanism, including to eliminate nomination related filibusters.

Yesterday, the Senator from Illinois, Senator Durbin, claimed that Senate rules, in his words, from the very beginning, required an extraordinary majority to end debate.

Now that is factual claim, and it is factually false.

The Senate adopted its first rules in 1789. Rule eight allowed a simple majority to proceed to a vote. The men who founded this republic designed this Senate without the minority's ability to filibuster anything.

Over the last few days, many excuses have been offered why some refuse to debate and vote on judicial nominations that reach the Senate floor.

Let me correct that. While these may be their reasons, there are no valid excuses.

When procedural obstructive devices such as the filibuster are kept where they belong, in the legislative process, the debate can properly focus on the merits of these nominees. That is what debating and voting should ultimately be about, the President's nominees.

The debate we have seen here on the Senate floor regarding nominees such as Justices Priscilla Owen and Janice Rogers Brown is typical of what we will see in the future regarding other nominees.

Many of our fellow citizen may know little of the Senate's Byzantine procedures, they may know little about judicial rulings, they may not speak legalese, but I hope they will not be afraid to participate in this process.

Let me offer a few pointers, a few tips, for the road ahead.

Politics is often about results, about winners and losers, and involves politicians asserting their will. Law is about the process of reaching results, about what the law requires, and involves judges using judgment.

Politics and law are two very different things, and our liberty depends on preserving that difference. So if you hear critics of judicial nominees talking only in the language of politics, you know something is wrong.

In the last day or two, for example, critics of the nominees before us have reduced them to sound bites, checklists, and litmus tests.

Senators begin sentences with phrases such as she ruled that . . . or she ruled for. . . .

Mentioning only those results, without exploring how a judge reached those results, amounts to applying political criteria to a judicial nominee, and that is fundamentally wrong. Sometimes the law requires results we may not like, results that may even sound dramatic.

Mentioning the political results without the judicial process leading to those results misleads people about what judges do and how to choose the rights ones.

Or the critics will characterize what a judge said rather than tell us what she actually said.

Or if they do quote the judge, critics will often pluck out only a phrase, or use lots of ellipses.

These are signs that spin may be in the air.

Or the critics will quote other critics. Imagine if the only thing someone knew about you came from what your critics or enemies said about you. That picture would be distorted, incomplete, and just plain false.

So our fellow citizens should not be worried that they do not know the language of lawyers, that they have not read a judicial nominee's writings or rulings, or are not well-versed in the fine points of legal argument.

I hope they will listen critically to the debate here in the Senate about these nominees, their qualifications, and their records.

I hope our fellow citizens will be very skeptical of critics who make a political case against a judicial nominee, skeptical if the case against a nominee is limited to soundbites about results or characterizations by third parties.

Let me conclude my remarks by noting that in September 2000, the Senator from Michigan, Senator Levin, said that the Constitution each of us has sworn to protect and defend requires that we debate and vote on judicial nominations reaching the floor.

I agreed with that principle then, and I agree with it today.

For more than two centuries, we kept the filibuster out of the judicial confirmation process.

It is surely not a good sign about our political culture that we must today formalize by parliamentary ruling a standard we once observed by principle and self-restraint.

But that self-restraint has broken down, and maintaining our tradition of up or down votes for judicial nominations is worth defending. Once we take unprecedented obstruction tactics like the filibuster off the table, we can focus where we should, on the merits and qualifications of nominees.

We must have a standard that binds both political parties. That standard must be fair, it must respect the separation of powers, and it must be consistent with our own Senate tradition.

Between 1789 and 2003, we had a strong consistent tradition of voting on judicial nominations once they reach the Senate floor.

We should return to that principle and practice.

Unfortunately, in 2003, the Democratic leadership broke with this longstanding Senate tradition and took an ill-founded turn down a partisan political path and unwisely changed the confirmation process in an unprecedented fashion.

We must turn back from that path. Once a judicial nomination reaches us here, our course should be clear. Let us debate and then let us vote.

I yield the floor.

Mr. President, we are here today in a battle to save our children, their families, and the victims, of repeat sex offenders.

I am so proud of the real warriors in this battle: the victims and their family members. One of those warriors is Ed Smart, from my home State of Utah, whose daughter Elizabeth was kidnapped from her own bedroom by a sexual predator. Ed is joined by Patti Wetterling, Linda Walker, and other outstanding advocates of our children, including John Walsh of America's Most Wanted, Ernie Allen of the National Center for Missing and Exploited Children, and Robbie Calloway of the Boys & Girls Club of America in support of this bipartisan legislation we are introducing today along with co-sponsor Senator Biden. We need legislation that will close the gaps in many laws already on the books; integrate and revive the existing laws; and expand covered offenses against children.

The Sex Offender Registration and Notification Act will bring all of the States up to date and enable citizens in every State to inform themselves about predators in their communities. This law will enable States to take public information about sex offenders and make it easy for citizens to access at one, open, web-site.

This legislation will put the responsibility on the sex offenders themselves to register with the local authorities. They will be required to notify those authorities when they move or change jobs. And if they don't want to comply with the rules--then they will go to jail!

This is common sense--those who break such a sacred trust and intend to harm our children, no matter who they are, where they are from, or where they commit their crime, should have some obligations under this law to voluntarily make their whereabouts known or subject themselves to additional jail time. That's what this bill is about. It's that simple.

The victims and victims' families have dealt with the pain and anguish imposed on them by these sexual offenders and predators. But instead of lying down, they are standing up for imposing common-sense rules on those who have taken the life and liberty of the most innocent and defenseless among us. They are standing up for tough sentences against those who won't abide by these very simple rules. They are standing up to say that together we are stronger.

Prior to 1994 just five states required convicted sex offenders to register their address with local law enforcement. Today there are over 549,000 registered sex offenders in the United States. Unfortunately, most of these receive and serve limited sentences and roam unchecked and unknown in our communities. Their crimes are heinous and they have a high risk of repeating their crimes on innocent children.

Under this Act, sex offenders and predators will be required to register in person, versus mailing in a letter. They will be required to wear a tracking device while they are on probation for a first-time offense--and wear it for life if they choose to repeat their crimes.

This Act enables states to offer citizens a searchable, statewide sex offender registry that interacts with all other states to provide seamless registration and notification across the country.

The Sex Offender Notification and Registration Act will strengthen and unite cities, communities and states in the effort to stop the assault on American children. This bill has a companion bill in the House, sponsored by Congressman Mark Foley and Congressman Bud Cramer. I invite you to join Senator Biden and me as we close the gaping holes that keep our children at risk.

Mr. President, we are here today in a battle to save our children, their families, and the victims, of repeat sex offenders.

I am so proud of the real warriors in this battle: the victims and their family members. One of those warriors is Ed Smart, from my home State of Utah, whose daughter Elizabeth was kidnapped from her own bedroom by a sexual predator. Ed is joined by Patti Wetterling, Linda Walker, and other outstanding advocates of our children, including John Walsh of America's Most Wanted, Ernie Allen of the National Center for Missing and Exploited Children, and Robbie Calloway of the Boys & Girls Club of America in support of this bipartisan legislation we are introducing today along with co-sponsor Senator Biden. We need legislation that will close the gaps in many laws already on the books; integrate and revive the existing laws; and expand covered offenses against children.

The Sex Offender Registration and Notification Act will bring all of the States up to date and enable citizens in every State to inform themselves about predators in their communities. This law will enable States to take public information about sex offenders and make it easy for citizens to access at one, open, web-site.

This legislation will put the responsibility on the sex offenders themselves to register with the local authorities. They will be required to notify those authorities when they move or change jobs. And if they don't want to comply with the rules--then they will go to jail!

This is common sense--those who break such a sacred trust and intend to harm our children, no matter who they are, where they are from, or where they commit their crime, should have some obligations under this law to voluntarily make their whereabouts known or subject themselves to additional jail time. That's what this bill is about. It's that simple.

The victims and victims' families have dealt with the pain and anguish imposed on them by these sexual offenders and predators. But instead of lying down, they are standing up for imposing common-sense rules on those who have taken the life and liberty of the most innocent and defenseless among us. They are standing up for tough sentences against those who won't abide by these very simple rules. They are standing up to say that together we are stronger.

Prior to 1994 just five states required convicted sex offenders to register their address with local law enforcement. Today there are over 549,000 registered sex offenders in the United States. Unfortunately, most of these receive and serve limited sentences and roam unchecked and unknown in our communities. Their crimes are heinous and they have a high risk of repeating their crimes on innocent children.

Under this Act, sex offenders and predators will be required to register in person, versus mailing in a letter. They will be required to wear a tracking device while they are on probation for a first-time offense--and wear it for life if they choose to repeat their crimes.

This Act enables states to offer citizens a searchable, statewide sex offender registry that interacts with all other states to provide seamless registration and notification across the country.

The Sex Offender Notification and Registration Act will strengthen and unite cities, communities and states in the effort to stop the assault on American children. This bill has a companion bill in the House, sponsored by Congressman Mark Foley and Congressman Bud Cramer. I invite you to join Senator Biden and me as we close the gaping holes that keep our children at risk.

Mr. President, once again, I rise to speak on behalf of the nomination of Justice Priscilla Owen to the Fifth Circuit Court of Appeals. I am very honored to do so. As we all know, the debate over this nomination will take place within the context of a historic constitutional struggle over the President's right to obtain an up-or- down vote for his judicial nominees.

In all seven of these cases--in all seven--each of them has bipartisan up-or-down majority support. All we ask is they get a vote.

Now, that will be resolved soon enough, but we should not forget that this is a fight worth having because this campaign of ongoing obstruction is depriving us of good and needed judges such as Priscilla Owen. We should not forget that in the end this debate is about the individual nominees and their qualifications for service on the Federal bench. This is a debate about Justice Priscilla Owen, and I am proud to support her.

Because Justice Owen's nomination has never come up for an up-or-down vote, I have had 4 years to consider this nomination and to get to know her personally, and to further familiarize myself with her record on and off the bench. The passage of time has only strengthened my conviction that she is wholly deserving of a seat on the Federal bench. She is a woman of real accomplishments, and the State of Texas is justifiably proud of her. I am proud of her. I am confident that if she is ever given the vote she deserves, she will do our country proud as a Federal circuit court of appeals judge.

In her years as a justice on the Texas Supreme Court, Priscilla Owen has demonstrated the cautious, impartial mind and the willingness to listen that we seek from our judges in this country. Both her private practice--where she became one of the first to break through the ``glass ceiling'' for women, became a major partner in one of the major law firms in the country, after being first in her class in law school, first on the bar examination, with the highest grade there--and her actions on the bench provide examples of the honor and dignity that an individual can bring to the practice of law.

Finally, she has comported herself with confidence and professionalism in the face of exaggerations and unfair complaints lodged against her by interest groups--the outside, leftwing interest groups--committed to her defeat. The people of Texas have recognized these attributes in Judge Owen and rewarded her twice by electing her and reelecting her to the Texas Supreme Court. In fact, she was reelected with 84 percent of the vote. Yet some try to characterize her as somehow outside of the mainstream.

How can they justify that? For 4 long years now, her nomination has languished as a result of a deliberate and systematic strategy to deny up-or-down votes to the President's majority-supported nominees. They claim nominees such as Justice Owen are extremists and conservative activists. Her record does not support these assertions, and I commend the President for renominating this eminently qualified jurist. In contrast to the false charge that she is an extremist--and I might add, how can she be an extremist and have the highest approval of the American Bar Association, certainly not a conservative group? So in contrast to the false charge that she is an extremist, the fact is Priscilla Owen is one of those relatively few nominees who received a unanimously well-qualified rating from the American Bar Association, the highest rating possible.

I am under no illusions here. The Senate is a unique, deliberative institution where the opportunity for serious debate must be vigilantly protected. Unfortunately, it seems likely that not many are going to have their minds changed by this debate. I hope the newly elected Members of the Senate will pay close attention to the facts surrounding the nomination of Priscilla Owen.

The Senate already knows Justice Owen quite well. We have spent literally hundreds of hours discussing her nomination. Many Senators have probably made up their minds. But for many people, this inside- the-beltway dispute is just now starting to draw attention. Only now, as this debate is coming to a head, is it the leading story on the network nightly news. Therefore, it is as much for the American people tuning into this debate as it is for my colleagues here that I want to address a handful of the unfair charges being made against her. And we have heard them here on the floor today.

Justice Owen graduated first in her class from Baylor Law School. She received the highest score on the State bar exam. She went on to become a partner in the prestigious firm of Andrews & Kurth.

She was admitted to practice before various State and Federal courts. She is a member of the American Law Institute, a prestigious organization; the American Judicature Society, the American Bar Association, and a fellow of the American and Houston Bar Foundations. In short, she possesses all the attributes and membership in traditional legal organizations that are recognized by all of us, and these organizations place her firmly in the mainstream of all American lawyers and of American jurisprudence.

Committed to the principle of equal justice for all, she participated on the

committee that successfully encouraged the Texas legislature to enact legislation resulting in millions of dollars per year in additional funds for providers of legal services to the poor. Does that sound like an extremist?

This is the resume of somebody fully within the mainstream of our legal community. It is not the resume of a radical or an extremist, as has been portrayed by some in this body on the other side. It is the resume of a successful attorney who went on to serve the public as a justice on the Texas Supreme Court.

She carried these mainstream professional habits, honed in private practice, with her into her career as a judge on the Texas Supreme Court. It is worth reconsidering what she had to say before the Senate Judiciary Committee during her first confirmation hearing way back on July 1, 2002. In her opening statement, she referred to the four principles that guide her decisionmaking as a judge. I am quoting her here.

Now, these are her four rules she lives by.

No. 1: Always remember that the people that come into my

court are real people with real problems.

No. 2: When it is a statute that is before me, I must

enforce it as you in the Congress or in the State

legislature, as the case may be, have written it, unless it

is unconstitutional.

No. 3: I must strictly follow United States Supreme Court

precedent.

No. 4: Judges must be independent, both from public opinion

and from the parties and lawyers who appear before them.

That is a statement of Justice Priscilla Owen before the Senate Judiciary Committee on July 21, 2002. This is hardly radical stuff. In fact, I would wager a vast majority of the American people agree with those principles.

Yet to listen to those committed to stonewalling this nomination--she has now been waiting 4 years for this vote--you would walk away with a very different impression, if you listened to them. I have been debating judicial nominations for a long time--all 29 years of my service in the Senate--but these most recent attacks are novel ones. The insistence on denying Justice Owen and other nominees up-or-down votes is part of a larger story dating back over 20 years now.

In those earlier debates, some committed to an activist judiciary used to wear the label ``judicial activist'' proudly on their sleeves. Over time, however, they have come to understand that the American people like their judges interpreting rather than making the laws. Judges should behave as judges, not junior auxiliaries to the legislative branch. So now they charge conservative nominees with being activists as well.

This is the principle charge against Justice Owen. The American people are going to have to make up their own minds on this, but to me it is very clear that argument does not hold any water. Look at her record. Look at those who are behind her. Look at all the Democrats who have supported her.

The abortion rights lobbyists focus their attention on a series of Justice Owen's opinions in cases involving the Texas parental notification statute. It is worth noting that contrary to the wishes of a vast majority of Americans, and the Supreme Court, groups such as the National Abortion Rights Action League oppose even these modest popular restrictions on abortion rights, that are supported by 80 percent of the American people. The reality is it is Justice Owen, not these groups, who is in the mainstream. The groups are the ones who are outside of the mainstream.

By the way, these are far-left Democratic Party groups that are far outside the mainstream in their interpretation. Anybody who disagrees with them on anything is ``outside of the mainstream'' or ``extremist.'' Unfortunately, some of our colleagues parrot what they say and what they tell them to say.

In Texas, the law requires that a minor notify her parents of her decision to have an abortion. That is what the law of Texas says. This is common in many States. Such statutes receive broad bipartisan support. I have mentioned 80 percent of the American people support these types of statutes. Yet, in their wisdom, the Texas legislature provided an opportunity for a judicial bypass of this notification of parents requirement in certain circumstances.

Judge Owen has been vilified in her dissent in the case of In re Doe I where she had to interpret the State's requirement that a minor seeking a judicial bypass of the notification of parents requirement demonstrate sufficient maturity to get the bypass. A fair reading of that opinion shows you Justice Owen made a reasonable interpretation of the Texas law.

The other day it was reported that Nancy Keenan, the president of the abortion advocacy group the National Abortion Rights Advocacy League, said she is committed to keeping what she called ``out of touch theological activists'' off the bench. I can only hope this talking point was not aimed at Justice Owen's decision, which is certainly well within the mainstream and supported by 80 percent of the American people. If so, her point misses the point entirely. Sadly, it seems that the deliberate misreading of Justice Owen's opinion may be for the sole purpose of raising ill-founded doubts against Justice Owen and other qualified nominees.

Priscilla Owen only interpreted the law to require that a minor seeking an abortion fully understand the importance of the choice she is making and be mature enough to make that choice. I thought these groups were in favor of supporting the right to make an informed choice. When it comes to Justice Owen, I guess it is easier to unfairly tar her as an anti-abortion activist.

This is a false charge, and it is contrary to the laws of many States and other laws as well. Yet some interest groups keep feeding this same misleading information to journalists around the country. Just last night, the evening news on one of the major networks reported as fact the patently false charge that Attorney General Gonzales called Justice Owen a judicial activist when he was her colleague on the Texas Supreme Court. This charge was made again this morning by the senior Senator from Massachusetts. Think about that. They know this claim is fiction, but they nonetheless continue to launch it as though people should believe it, even though it is fiction.

Attorney General Gonzales confirmed this under oath--he was not criticizing Justice Owen--in his January 6, 2005, confirmation hearing, and it is clear to anyone who bothers to read the opinions that he never referred to Owen or any other judge on the Texas Supreme Court as a judicial activist. He was basically referring to himself. He felt if he didn't rule the way he did, he would be a judicial activist. He didn't make any criticism of her. But to read the newspapers and to hear the television broadcasters and to listen to our colleagues on the other side, they completely distort what Attorney General Gonzales says. As a matter of fact, Attorney General Gonzales was one of the strongest supporters of Priscilla Owen because she is a terrific justice, as he knows because he served side by side with her on the Texas Supreme Court.

In the end, I am happy to have this debate. The American people know judicial activism when they see it. Just last week a Federal judge in Nebraska invalidated a State constitutional amendment preserving traditional marriage in that State. If that opinion is upheld, that will bind every State in the Union under the full faith and credit clause. Talk about activism.

But I am sure that my colleagues on the other side will find that that judge was in the judicial mainstream or the mainstream of American jurisprudence. If they want to argue that Justice Owen's interpretation of a popular parental notification statute is an activist one, I will be here to debate that all day long. I might add that parents, in many of the cases, who are concerned about their daughters, ought to have at least the privilege of being in a position to help their daughters through those trying times. That is what the courts and the statutes have said. That is what any reasonable person would say. Yet they brand Priscilla Owen as an extremist.

Why didn't the American Bar Association do that? Why did the American Bar Association give her the highest possible rating that you can get? During the Clinton years that was the gold standard, the absolute gold standard. Why isn't it the gold standard today? Why is this really terrific person being called a judicial activist, outside of the

mainstream, and an extremist? It is awful.

Those opposed to Justice Owen ignore the host of decisions in which she protected workers, consumers, the environment, crime victims, and the poor--as though she didn't care about people. There is a host of decisions where she has shown great care for people. They select individual things and then distort them. It makes you wonder what their objection to this nominee really is. It is clear they are not really interested in having a serious debate on the merits of Justice Owen's nomination. For whatever reason, they are dead set on not having her on the Federal bench.

We are going to hear her described as an out-of-control activist. That couldn't be further from the truth. The senior Senator from Massachusetts has called her and others of the President's nominees Neanderthals. Come on here. This is supposed to be a sophisticated body. These are decent people. She was supported by virtually everybody in the State of Texas in her last reelection--84 percent of the vote-- every bar association president and former president, 15 of them, every major editorial board. And we know they are not generally in favor of Republicans, but they all supported her.

She was first in her law school class, best bar exam in the State, partner in a major law firm, broke through the glass ceiling. She is a sitting justice on the Texas Supreme Court, reelected by an enormous majority, unanimously well-qualified rating from the American Bar Association. And she is a Neanderthal? Give me a break.

That is how far these debates have deteriorated over the years, especially when you find a moderate to conservative woman such as Priscilla Owen or a moderate to conservative African-American justice like Janice Rogers Brown.

Janice Rogers Brown, think about it--sharecropper's daughter, worked her way through college and law school as a single mother, went on to hold three of the highest positions in California State Government, State counsel to the Governor of the State of California, then-Governor Pete Wilson, nominated her for the Supreme Court of California. She writes the majority of the majority opinions on that liberal court. In other words, she is writing for all the of judges on that court in the majority opinions. She is a terrific human being. Her problem is she is a conservative African-American jurist, approved by the American Bar Association. And they call her an extremist.

We have had negotiations here where they were willing to throw these two women, Priscilla Owen and Janice Rogers Brown, off the cliff in favor of three or four men, white males, all of whom deserved being confirmed themselves. I thought they were all bad and extremist, according to them. Why would they allow any of them to go through? Then again, if they are not, why haven't they voted for them and why have they filibustered?

I yield the floor.