Floor Statements

Madam President, S. Con. Res. 130 expresses the sense of Congress that the Supreme Court should expedite consideration of the applicability of Blakely v. United States to the Federal Sentencing Guidelines.

As one of the original cosponsors of the Sentencing Reform Act of 1984, which created the United States Sentencing Commission, and a proponent of reducing sentencing disparity across the nation, I have a strong interest in preserving the integrity of the Federal guidelines against constitutional attack. Congress enacted the Sentencing Reform Act to reduce unwarranted disparity in Federal sentencing, including racial, geographical, and other unfair sentencing disparities by establishing standardized sentencing rules while leaving judges enough discretion to impose just sentences in appropriate cases.

As many here may already know, criminal defendants are routinely sentenced by judges who decide sentencing facts based upon a preponderance of the evidence standard. This has all changed in recent weeks. On June 24, 2004, in Blakely v. Washington, the Supreme Court held that any fact that increases the maximum penalty under a State statutory sentencing guidelines scheme must be presented to a jury and proved beyond a reasonable doubt even though the defendant's sentence falls below the statutory maximum sentence.

Although the Supreme Court explicitly stated in a footnote that ``The Federal Guidelines are not before us, and we express no opinion on them,'' it also characterized the government's amicus brief as questioning whether differences between the State and Federal sentencing schemes are constitutionally significant. The ambiguity apparent in Blakely and the strong suggestions by the dissent that it will apply to the Federal sentencing guidelines, has understandably created angst throughout the Federal justice system.

In just 2\1/2\ weeks after the Supreme Court's decision, we already had a split among the Federal circuit courts of appeal. In addition, at least two dozen lower Federal courts--and probably many more--have ruled the Federal Sentencing Guidelines unconstitutional. Some judges disregard the Federal sentencing guidelines in their entirety. Other judges apply mitigating sentencing factors but disregard any relevant aggravating factors. Still other judges are convening juries to decide some of these sentencing facts.

In fact, as I learned when the Judiciary Committee held a hearing on this very issue just last week, in my home State of Utah, the district judges adopted four different approaches to sentencing defendants after Blakely.

Let me briefly describe a couple of examples of the havoc caused by this Blakely decision. I'm sure we all recall Dwight Watson, the man who sat in a tractor last year outside the U.S. Capitol for 47 hours and threatened to blow up the area with organophosphate bombs. The day before the Blakely opinion, Mr. Watson was sentenced to a 6-year prison sentence. Less than a week after the Supreme Court's opinion, he was resentenced to 16 months, which was essentially time served. He is now a free man.

A defendant in West Virginia had an offense level that was off the sentencing charts. Although he would have been subject to a life sentence under the guidelines, the statutory maximum penalty was 20 years. He was given a 20-year sentence three days before Blakely was decided. A week later, his sentence was drastically reduced to 12 months. The judge did not rely on any relevant conduct or any sentencing enhancements in calculating the defendant's sentence. In other words, he only applied a portion of the sentencing guidelines-- those that he thought remained valid after Blakely.

The concurrent resolution I introduce today urges the Supreme Court to act expeditiously to resolve whether the Federal sentencing guidelines can be constitutionally applied in light of Blakely v. Washington. While I wish we could have done more, unfortunately, we were unable to do so in such a short period of time.

As we go forward, I believe we should adopt legislation that would render the Federal sentencing guidelines constitutional regardless of whether Blakely applies. Unfortunately, while I have worked diligently with my colleagues on both sides of the aisle and in both Houses, we simply just ran out of time. While I hope that the Supreme Court will find application of the Federal sentencing guidelines constitutional under the 6th Amendment, I will continue to work with my colleagues over the next several months in preparation of a contingency plan to ensure that regardless of what the Supreme Court decides, that we will be able to preserve a system that promotes uniformity and reduces sentencing disparity across this country.

Mr. President, I rise today to rebut my colleagues' statements regarding our nominee William Myers. Some of these statements we have heard today are inaccurate and I would like to set the record straight.

Despite some accusations to the contrary, Myers has a proven record of defending Native American tribal interests in this country. For example, he defended the constitutionality of a provision of the California Constitution giving Indian tribes the exclusive right to conduct casino gaming in that State.

He also fought to uphold the Secretary of the Interior's decision to put a parcel of land located in Placer County, CA into trust for the United Auburn Indian Community. In addition, Myers supported legislation that vindicated the property rights of the Pueblo of Sandia, a federally recognized Indian tribe in central New Mexico, by creating the T'uf Shur Bien Preservation Trust Area within New Mexico's Cibola National Forest.

He also helped negotiate an agreement removing two dams from the Penobscot River in an effort to clear the way for the Penobscot Indian Nation to exercise its tribal fishing rights. Conservation groups and the Penobscot Indian Nation supported these efforts, and the agreement is now being implemented by the DOI's Boston field office.

And finally, with respect to tribal interests, Myers worked to implement an Indian Education Initiative that provided increased budget support to the Bureau of Indian Affairs schools, including over $200 million annually for school construction. This initiative emphasizes the teaching of tribal languages and cultures in addition to improving reading, math, and science education.

Some have also alleged that Myers demonstrated his hostility to environmental safeguards when he submitted a brief, on behalf of the North Dakota Farm Bureau, the American Farm Bureau and a similar group of clients, which challenged the Army Corps of Engineers' authority to regulate solid waste disposal into isolated wetlands. However, the U.S. Supreme Court agreed with his argument--pretty good evidence that the argument was both mainstream and stood on solid legal ground.

In fact, the U.S. Supreme Court agreed with Myers' clients that as a matter of statutory interpretation, the Clean Water Act did not authorize the Army Corps of Engineers to regulate the habitat of migratory birds in isolated, intrastate waters.

Myers' brief never contended that Congress lacks the ability to regulate wetlands under other statutes or provisions of the Constitution, e.g., under its spending clause powers. It simply argued that the Clean Water Act, as it existed in 1999, did not properly delegate such regulatory authority to the Army Corps of Engineers.

In his responses to Senator Feinstein's written questions, Mr. Myers affirmed that Congressional intent in passing the Clean Water Act was to ``restore and maintain the chemical, physical and biological integrity of the Nation's waters,'' and that ``the health of our Nation's waters is often inextricably connected to the health of adjacent wetlands.''

As Myers stated at his hearing, the Clean Water Act is clearly constitutional, and there's no question that he understands its importance. And there's also no question that advocacy of a position accepted by a Supreme Court majority should be viewed as a positive point for a nominee, not a negative due to someone's personal disagreement with the decision in question.

I would also like to set the record straight regarding our nominee and an amicus brief he submitted on behalf of the National Cattlemen's Association to the U.S. Supreme Court in the 1995 Sweet Home v Babbitt case. Despite what my colleagues allege, this brief did not argue that the Endangered Species Act itself was unconstitutional.

The brief simply relied on the then-recent precedent of Dolan v City of Tigard, in which the Supreme Court stated:

We see no reason why the Takings Clause of the Fifth

Amendment, as much a part of the Bill of Rights as the First

Amendment or the Fourth Amendment, should be relegated to the

status of a poor relation in these comparable circumstances.

The problem that Mr. Myers' clients had with the Endangered Species Act was that Babbitt Interior Department regulations defined the term ``harm'' in the statute in a way that essentially precluded any private landowner's use of property on which an endangered species might find habitat, and, importantly, that the Government had no intention of compensating affected landowners.

In fact, the Endangered Species Act contains provisions that enable the

Secretary of the Interior to pay landowners to protect endangered species on their properties, while also preserving viable economic uses of the land. It's no surprise that the Babbitt Interior Department had no intention of enforcing those provisions of the law, but you can hardly blame ranchers and farmers adversely affected by Endangered Species Act regulations for hiring lawyers to ask the Supreme Court to remind the Interior Department of its obligations.

These provisions of the statute are, of course, in addition to the takings clause of the Fifth Amendment. Now, I understand that the Supreme Court ruled against Mr. Myers' clients' position in this case, but it seems to me that arguments well grounded in the plain language of the Constitution and the statute at issue, that acknowledged the basic validity of the statute, cannot credibly be tarred as ``extreme.''

By contrast, here is a situation that I think most people would agree is extreme. Last month, the Associated Press published an article entitled ``So Endangered It Didn't Exist,'' in, among other newspapers, the Daily Southtown of Illinois. The article reports that the LeSatz family of Chugwater, WY:

wants to be able to teach their clients the finer points of

riding and roping without having to trailer their animals 25

miles to the nearest public indoor arena whenever the weather

turns miserable. But the LeSatzes aren't able to build their

own riding arena. The only decent site on their property in

southeastern Wyoming lies within 300 feet of Chugwater Creek,

and building there is far too expensive because of Endangered

Species Act restrictions intended to protect the Preble's

meadow jumping mouse.

The article then breaks it to the reader that the mouse doesn't exist:

After six years of regulations and restrictions that have

cost builders, local governments and landowners on the

western fringe of the Great Plains as much as $100 million .

. . new research suggests the Preble's mouse in fact never

existed. It instead seems to be genetically identical to one

of its cousins, the Bear Lodge meadow jumping mouse, which is

considered common enough not to need protection.

Now, the U.S. Fish and Wildlife Service is in the process of deciding whether or not these two species of mice are identical; if they are, then neither needs protection from the Endangered Species Act. And the consequences would positively affect many Western communities, in Montana, Wyoming, Colorado, and perhaps several other Western States. As a spokesman for the Colorado Contractors Association put it:

If we've shown that the mouse doesn't exist, what happens

to all that has been set aside? Because that's been a huge

economic burden.

Indeed it has. As the article reports, ``nearly 31,000 acres along streams in Colorado and Wyoming have been designated critical mouse habitat.'' The mouse ``also has blocked the construction of reservoirs amid a five year drought in the Rocky Mountains.''

Naturally, environmental groups have begun their usual attacks in hopes of preserving the potentially bogus classification of this mouse as endangered. But the quote from one of those groups' spokesmen in the AP article is instructive. Does it attack the science? Does it say, well, let's get to the bottom of this? No. It personally attacks the biologist who raised this issue with the U.S. Fish and Wildlife Service, as having ``a clear anti-Endangered Species Act agenda,'' and mocks him for ``testifying in Washington, D.C. in front of committees headed by members of Congress who would like nothing better than having the Endangered Species Act thrown away.'' I guess that, by this individual's logic, any time someone who doesn't share his policy agenda is chairing a Congressional committee, testimony before that committee is illegitimate. An interesting standard--I wonder if Bill Myers' liberal environmentalist opponents would like it applied to their detriment.

Now, the biologist referenced in this AP article may or may not prove to be right about this mouse; it's the Fish and Wildlife Service's job to figure that out. But here's the point: anyone who suggests that sound science ought to inform Endangered Species Act classifications-- as Bill Myers did when he was representing folks like the LeSatzes, trying to make a living off the land, in this case, their own land--is attacked by the liberal activists as trying to throw the entire law into the garbage can. Sound familiar? It should. It sounds exactly like the kinds of personal attacks we're hearing on Bill Myers today, and it sounds like the attacks on any member of Congress who has the gall to suggest that the Endangered Species Act must be reformed. While now is not the time to debate the ESA, now should also not be the time to personally attack a qualified judicial nominee for having represented Westerners who have suffered because of its draconian applications.

Let me also remind my colleagues of Mr. Myers' acknowledgement at his hearing, that:

the Supreme Court, in interpreting the Takings Clause and the

Fifth Amendment, has never interpreted it as an absolute. . .

. [P]roperty rights are subject to reasonable regulation by

government entities.

We all know this is the case--not only with the Takings Clause, by the way--and Mr. Myers has never suggested otherwise, despite the misrepresentations of his opponents.

I might note that I find it very unfortunate that the various Indian tribes that oppose Bill Myers have bought into the same false accusations about the Glamis Gold Mine issue.

The truth is Bill Myers was not involved in the permitting process for the proposed Glamis gold mine in southern California. He simply issued a Solicitor Opinion regarding the proper scope of the Interior Department's authority under the Federal Land Policy and Management Act, which allowed Glamis Gold, the owner of several mining claims in the area, to proceed with a pre-existing mining proposal. My colleagues should understand that the Babbitt Interior Department approved the same Glamis proposal--supported by two draft environmental impact statements in 1996 and 1997, and two separate Native American tribal cultural resource studies in 1991 and 1995--up until the last week of the Clinton Administration in January 2001.

At his hearing, Mr. Myers stated that:

my role in that matter was looking at a fairly narrow [legal]

point and determining whether the Department had the

congressional authority that it needed to make certain

interpretations [of the FLPMA].

And his legal conclusion was that the Interior Department did not have the authority to do what former Secretary Babbitt's Solicitor said it did, regardless of the policy merits.

In response to Senator Leahy's written questions, Mr. Myers explained that prior to his tenure as Solicitor.

Interior had suspended the 2000 regulations affecting hard

rock mining. Those regulations were based in part on one of

my predecessor's opinions. Multiple lawsuits regarding the

suspended regulations were also pending when I arrived. I

therefore felt an obligation to review the opinion that was

common to these controversies to determine if the

Department's defense to the lawsuits was viable.

In fact, Myers reached the legal conclusion that the regulations based on that opinion could not be credibly defended in Federal court.

Additionally, as his written responses to several other Senators' questions make clear, he reached that conclusion before he met with any mining industry representatives, and with the full awareness of the legal positions taken by the affected Indian tribes. Mr. Myers emphasized that:

representatives of the mining company were disappointed by

their meeting with me because I would not engage them in a

discussion of their ideas or views on the [hardrock mining]

matter.

Finally, last spring, a Department of the Interior Inspector General report, concluded:

the conduct of the DOI officials involved in this [Glamis]

matter was appropriate, that their decisions are supported by

objective documentation and that no undue influence or

conflict of interest affected the decision-making process

related to the Imperial Project.

While a Federal district court judge here in D.C. disagreed with Myers' Opinion regarding mining operations on Federal lands, the judge upheld the Interior Department's regulations that were based on Myers' Opinion. As Bill noted in his responses to Senator Feinstein's written questions, his opinion was consistent with the Carter administration's interpretation of the relevant portions of the FLPMA, and the D.C. judge agreed with Bill's Opinion's ultimate conclusion that the Bush administration's mining regulations would protect public lands from unnecessary and undue degradation.

Just once I would like to come here to vote on a nominee that some Democrats have maligned and misrepresented in order to make him or her ``controversial,'' and hear more than one Democrat say, well, we've actually reviewed the hearing transcript and the nominee's answers to written questions, and he or she really is a balanced, reasonable person who doesn't deserve the slander we've hurled at him or her. Maybe just once those Democrats prosecuting these filibusters will stray from the talking points and press releases of the inside-the- Beltway smear groups.

But I fear that day will be a long time in coming. Until then, and today in Bill Myers' case, all I can do is calmly point out facts and in particular, statements that the nominee has made to us that conclusively rebut the fevered allegations against him.

Mr. Myers' opponents have continually argued that since Bill Myers had publicly advocated his former clients' causes, which clash with their own policy preferences, he is presumptively disqualified from service on the Federal bench. But here is what he said in response to Senator Schumer's question regarding the Federal Government's role in environmental policy:

A centralized government, i.e., Congress, has an important

role to play in environmental protection. And the Clean Water

Act, the Clean Air Act--there are probably 70 environmental

statutes that give evidence to that truth.

He further explained that much of his advocacy for ranchers against the Government was in response to the impact of environmental regulations on the generally good environmental stewardship of public lands by ranchers.

But, Mr. Myers explained in his responses to Senators' written questions that he has in fact represented ``clients who actively opposed use of federal land for oil and gas exploration and ranching,'' in one case because ``proposed oil and gas exploration conflicted with my client's use and enjoyment of . . . the land's aesthetic and ecosystem values.'' He also clarified that his lobbying on behalf of coal companies was limited to a piece of legislation supported by Bruce Babbitt's Interior Department.

In written questions, Mr. Myers was asked:

In private practice, have you ever represented an

environmental organization or Indian tribe in litigation

against the grazing or mining industry, or lobbied for

environmental or Native American organizations on an issue or

piece of legislation that was opposed by the mining or

grazing industries?

And here's how he responded:

I have not represented environmental organizations in

private practice. However, I have represented Native American

tribal interests in pursuit of environmental matters

unrelated to grazing or mining. In particular, I have

represented tribal interests in securing water rights and

damages for lost fishing rights. I have not lobbied for

environmental or Native American organizations. While in

private practice, I volunteered to chair a review

commissioned by the State of Idaho regarding management of

federal lands in Idaho. Environmental interests participated

in that effort. Specific environmental groups were invited to

join the group as full members but they declined to do so.

Mr. Myers also clarified that as Solicitor, he:

supported litigation and non-litigation activities

restricting commercial use of public land for gold mining,

ranching, off-shore oil and gas development, trespass in

National Parks, expansion of national monuments, and

protection of Indian sacred sites.

The question is, Do Mr. Myers' opponents care about his statements and the facts of the particular matters they hold against him, or had they made up their minds, well before he ever had an opportunity to respond to their concerns, and regardless of what he's actually said in sworn testimony? I think I know the answer, and it is a profoundly unsettling one.

I would also like to respond briefly to a falsehood recently circulated by a reliably liberal environmental group about Mr. Myers' October 2002 Solicitor Opinion, which addressed the Bureau of Land Management's authority to permanently retire grazing permits on Federal lands. The Opinion concluded that BLM does have the authority to retire permits at the request of a permittee, but only after compliance with statutory requirements and a BLM determination that the public lands associated with the permit should be used for purposes other than grazing. And BLM's decision to retire grazing permits is subject to reconsideration, modification or reversal.

Some found this Opinion controversial; some saw it as a shot across the bow against environmental activist groups that try to buy up grazing permits and then seek to retire them permanently, in order to shut ranchers off from those permitted areas. But at least in the case of a dispute over a portion of Utah's Grand Staircase-Escalante National Monument, a spokesman for the environmental group that sought to buy and retire grazing permits had this reaction to your Opinion:

What [Myers'] memo sets up is an acknowledgement of what

we've already known . . . Once an area is closed to grazing,

someone could still come along later and say ``we want to

graze here'' and the BLM could re-open the area to grazing. .

. . What people consider new about the memo is that plan

amendments are not permanent. But that was not new to us.

I guess the extreme environmentalists opposition campaign didn't bother to read that quote, or Myers' Opinion.

In fact, the portion of the 1999 Tenth Circuit opinion in Public Lands Council v Babbitt that the U.S. Supreme Court did not review found that there is a presumption of grazing use within grazing districts, and that BLM could not unilaterally reverse this presumption. That finding supports the Opinion.

Let me also note that Myers' Opinion superseded a prior memorandum issued by former Secretary Babbitt's Solicitor on January 19, 2001, during the final hours of the Clinton Administration. That memorandum failed to consider a critical factor in any analysis of grazing permits under the Federal Taylor Grazing Act, namely, that the Secretary of the Interior has deemed lands within existing grazing districts ``chiefly valuable for grazing and the raising of forage crops.''

Now, the environmental group that's propagating the misrepresentations about this Solicitor Opinion also speculates that, if Myers' ``authority also extended to the national forests,'' then groups that try to buy up land to preclude all subsequent economic uses of it wouldn't be able to duplicate the ``success story'' of wolf and grizzly bear reintroduction in Wyoming and Montana. It is hard to know where to start dismantling this absurd statement. First, as the record will now show, the relevant Solicitor Opinion does not, in any way, stop willing buyers of land from buying land from a willing seller--but the Federal Taylor Act must be respected in the process. Second, as a Federal appellate judge, Bill Myers, at his most powerful, would be on a panel of three judges. Given the overwhelming number of liberals on the Ninth Circuit, the odds are that he would be routinely outvoted.

The third and perhaps most telling, only a liberal environmental group believes that grizzly bear and wolf reintroduction in the West has been a ``success.'' The verdict of the many farmers and ranchers, inside and outside of the Ninth Circuit, who have lost their livestock and livelihoods to these federally subsidized and protected predators is quite different. And it is Bill Myers' understanding of both sides of these types of issues that makes it absolutely essential that he be confirmed as a Ninth Circuit judge.

I would like to point out that at the Judiciary Committee markup on April 1, 2004, Bill Myers was unfairly characterized by one of my colleagues as ``a man who has contempt for the views, the well-believed and cherished views of others,'' based on a couple of quotes, lifted out of context, from several advocacy articles he wrote on behalf of his clients: ranchers and farmers.

I thought I might read you a few quotes, not lifted out of context, from some of the many activist groups who have fomented much of the baseless opposition to Myers' nomination. Judge for yourselves whether this rhetoric fits the Senator's definition of contempt for the views of others, but I think it's crystal clear that what Myers' opponents would like to do is demonize him as a way to silence the opposition to their own favorite purveyors of contempt.

Here are a few choice quotes from a document posted by a coalition of several liberal environmental groups, all of which have vilified Bill Myers as an ``extremist,'' in April 2002:

One of the most nefarious strategies used by the Bush

Administration and its industry

allies to undermine environmental protections is to set

policy by failing to defend against industry lawsuits or by

reaching ``sweetheart'' settlements with industry.

Among the top contributors to the 2000 Bush Presidential

Campaign were the very industries oil--and gas, logging,

ranching and large-scale real estate development--that stand

to benefit most from the weakening of federal wildlife

policy. The court cases discussed above [regarding the

Endangered Species Act] were virtually all filed by

developers, ranchers and loggers, so it is clear that these

industries have already benefited from their generosity to

the campaign and their otherwise close ties with the Bush

Administration. The oil and gas industry similarly has

enjoyed favored treatment, even when its activities would

despoil some of the most important remaining habitats of

imperiled species.

Unfortunately, in the current Administration, science is

often shortchanged when it gets in the way of favored

corporate interests. Secretary Norton's Interior Department

has repeatedly suppressed, distorted or scuttled the science,

even when it comes from biologists within the Department.

Let's see if I've got this straight. The entire Bush administration is nefarious, corrupt, and bribed by corporate interests. Secretary Norton distorts science to benefit the administration's corporate contributors. But it's Bill Myers who is contemptible and ``extreme'' because he dared suggest that frivolous environmental lawsuits are increasing?

I think everyone ought to be honest about what's going on here. Groups like this, which I'm sure many Democrats would defend as ``mainstream,'' and whose bidding Senators will be doing by refusing to vote on Bill Myers, are the ones spewing contempt.

I would like to respond to some of the rhetoric about Bill Myers' record as Solicitor at the Department of the Interior, a position to which this Senate confirmed him without opposition in 2001.

I understand that Mr. Myers's opponents believe that association with the Bush/Norton Interior Department is a disqualifier for service on the Federal bench I wonder if they will mind when such a standard is applied to the detriment of officials from the Clinton/Babbitt Interior Department, or any future Democratic administration, who might be nominated to the Federal bench. Regardless, let me point out just one example of where the Bush Interior Department clearly got a policy issue right, an issue on which Bill Myers himself has been extensively criticized.

The issue was decided just last month in the case of Southern Utah Wilderness Alliance [124 S. Ct. 2373 (2004)]: The Bush Interior Department's position in this case, for which Bill Myers laid the legal foundation, was upheld by a unanimous Supreme Court. The Court rejected environmental activists' challenges to a land use plan that was duly issued under authority of the Federal Land Policy and Management Act. The Court endorsed the Interior Department's ``multiple use management'' concept, describing it as ``a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put. . . .'' The Court also held that while a ruling in favor of the environmental activists:

might please them in the present case, it would ultimately

operate to the detriment of sound environmental management.

Its predictable consequence would be much vaguer plans from

BLM in the future--making coordination with other agencies

more difficult, and depriving the public of important

information concerning the agency's long range intentions.

The fact that Bill Myers defended such policies cannot, in a rational confirmation process, disqualify him from service on the Federal bench. In fact, the endorsement of multiple use management policies by a unanimous Supreme Court in this case is compelling evidence against the absurd allegations that Bill Myers is somehow ``out of the mainstream'' with respect to public lands and environmental law.

I would also like to address a point raised earlier about some statements that Bill Myers made in articles that he wrote on behalf of his clients--cattlemen, ranchers and farmers who opposed Federal Government mismanagement of public lands.

In a July 1, 2004 article entitled ``Ronald Reagan, Sagebrush Rebel, Rest in Peace,'' William Pendley of the Mountain States Legal Foundation wrote: ``I am, former Governor Ronald Reagan proclaimed in 1980, `a Sagebrush Rebel.' ''

Now, at his hearing, Bill Myers was attacked merely for having used this same term, in an advocacy piece he wrote for his farming and ranching clients. In fact, he was mocked at this hearing, and after it, for merely channeling the concerns of his clients, who, like Ronald Reagan, considered themselves ``Sagebrush Rebels.''

Mr. Pendley's article goes on:

When Ronald Reagan was sworn in, he became the first

president since the birth of the modern environmental

movement a decade before to have seen, first hand, the impact

of excessive federal environmental regulation on the ability

of state governments to perform their constitutional

functions; of local governments to sustain healthy economies;

and of private citizens to use their own property. . . .

Reagan thought federal agencies in the West should be ``good

neighbors.'' Therefore, Reagan returned control of western

water rights to the states, where they had been from the time

gold was panned in California until Jimmy Carter took office.

Reagan sought to ensure that Western states received the

lands that they had been guaranteed when they entered the

Union. Reagan responded to the desire of western governors

that the people of their states be made a part of the

environmental equation by being included in federal land use

planning.

I would also like to note that Reagan criticized ``excessive'' regulation, not any regulation at all--neither Bill Myers nor anyone else thinks there is no role for the Federal Government in environmental regulation. And Bill Myers emphasized this at his hearing, in response to very hostile questioning by Democratic Senators:

A centralized government--i.e. Congress--has an important

role to play in environmental protection. And the Clean Water

Act, the Clean Air Act--there are probably 70 environmental

statutes that give evidence to that truth.

But the Reagan approach, which is also the Bush Interior Department's approach, which Bill Myers did his best to defend, is inimical to the environmental activist groups that oppose Mr. Myers' nomination. Any attempt to give the people who actually make their living on and around Western lands a stake in how those lands are regulated is violently opposed by these groups. And then these groups label their enemies ``enemies of the environment,'' or ``friends of polluters.'' It is unfortunate that such labels are uncritically accepted by some Senators, and because these liberal groups have similarly labeled Bill Myers, he won't get the up or down vote he deserves.

Mr. President, I express my support for the United States- Morocco Free Trade Agreement. Under the leadership of U.S. Trade Representative Robert Zoellick, the U.S. has once again negotiated a sound free trade agreement with a country that is energetic in their support of U.S. interests around the world.

I thank all of those involved in negotiating this agreement, especially the dedicated staff at the U.S. Trade Representative's Office and my colleagues on the Finance Committee, Chairman Grassley and ranking minority member Baucus. Although bilateral trade agreements with relatively small countries are very time consuming and difficult, when taken in aggregate, they add up to a substantial amount of U.S. annual exports. In all, these smaller free-trade agreements end up saving U.S. businesses millions of dollars a year in tariffs and duties and, therefore, are worth all the effort exerted in getting them negotiated and enacted.

The United States-Morocco Free Trade Agreement will open up the Moroccan market to fair trade and will allow U.S. companies to compete effectively. In fact, with the signing of this agreement, more than 95 percent of bilateral trade in consumer and industrial products will become duty free immediately. Industries such as information technology, machinery, chemicals, and construction equipment will gain immediate duty-free access to Morocco. Agricultural markets in Morocco will continue to open up to U.S. imports at a rapid pace. Service industries that are so crucial to the economy of the State of Utah will have rapidly increasing access to Morocco, thereby, allowing banks, consulting companies, insurance companies, and telecommunications companies the ability to compete on a level playing field. Of particular note in this agreement is the inclusion of antibribery and transparency provisions. These provisions will help Morocco in cracking down on illegal activity which hurts U.S. exporters and leads to higher costs for consumers.

Utah companies have exported nearly $1 million worth of goods and services to Morocco over the last 5 years. Although this amount seems relatively modest, I take comfort in the fact that those small businesses engaged in this trade will be saving money under this agreement and be better positioned to increase the amount they export. One million dollars in trade with Morocco may not seem like much when measured against overall Utah exports, but to those individuals whose jobs depend on trade with Morocco, $1 million is a very big deal and I am proud to be able to help them. Much of the products exported by Utah companies are manufactured products and manufacturing jobs can be difficult to hold on to these days. Therefore, I am pleased to help lower barriers around the world and make it easier for Utah manufacturers and their employees to compete.

Utah workers, and American workers collectively, deserve to be treated fairly in the world-wide marketplace and this agreement accomplishes that goal. Fairness and transparency only help U.S. companies compete and that is why I support the swift approval of this implementing legislation.

The Situation in Darfur and Sudan

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on July 20, 2004, at 9:30 a.m., in closed session to receive a classified briefing from Major General Keith W. Dayton, USA, Former Commander of the Iraq Survey Group (ISG) regarding the activities of the ISG in Iraq.

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Tuesday, July 20, 2004, at 2:30 p.m., to conduct an oversight hearing on the Semi-Annual Monetary Policy Report of the Federal Reserve.

Concurrent with the hearing, the Committee intends to vote on the nominations of Mr. Stuart Levey, of Maryland, to be Under Secretary of the Treasury for Enforcement; Mr. Juan Carlos Zarate, of California, to be Assistant Secretary of the Treasury for Terrorist Financing and Financial Crimes; and Ms. Carin M. Barth, of Texas, to be the Chief Financial Officer, Department of Housing and Urban Development.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Tuesday, July 20 at 10 a.m. to receive testimony on S. 2590, a bill to provide a conservation royalty from outer continental shelf revenues to establish the Coastal Impact Assistance Program, to provide assistance to States under the Land and Water Conservation Fund Act of 1965, to ensure adequate funding for conserving and restoring wildlife, to assist local governments in improving local park and recreation systems, and for other purposes.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet in open Executive Session during the session on July 20, 2004, at 10 a.m., to consider favorably reporting S. 2677, the U.S.-Morocco Free Trade Agreement Implementation Act; H.R. 982, a bill to clarify the tax treatment of bonds and other obligations issued by the Government of American Samoa, and, the nominations of Joey Russell George, to be Treasury Inspector General for Tax Administration, U.S. Department of Treasury; Patrick P. O'Carroll, Jr., to be Inspector General, Social Security Administration; Paul B. Jones, to be Member, IRS Oversight Board; and, Charles L. Kolbe, to be Member, IRS Oversight Board.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, July 20, 2004, at 9:30 a.m. to hold a hearing on The Road Map: Detours and Disengagements.

Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Tuesday, July 20, 2004, at 10 a.m. in Room 485 of the Russell Senate Office Building to conduct a hearing on S. 2605, the Snake River (Nez Perce) Water Rights Act of 2004.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized

to meet to continue its markup on Tuesday, July 20, 2004, at 9:30 a.m. in Dirksen Senate Office Building Room 226. The agenda is attached.

Agenda

I. Nominations: Claude A. Allen to be U.S. Circuit Judge for the Fourth Circuit; David W. McKeague to be United States Circuit Judge for the Sixth Circuit; Richard A. Griffin to be United States Circuit Judge for the Sixth Circuit; Virginia Maria Hernandez Covington to be United States District Judge for the Middle District of Florida; Michael H. Schneider, Sr., of Texas to be United States District Judge for the Eastern District of Texas; David E. Nahmias, of Georgia to be United States Attorney for the Northern District of Georgia; Robert Clark Corrente to be United States Attorney for the District of Rhode Island; Ricardo H. Hinojosa to be Chair of the United States Sentencing Commission; Michael O'Neill to be a Member of the United States Sentencing Commission; and Ruben Castillo to be a Member of the United States Sentencing Commission.

II. Legislation: S. 1635, L-1 Visa (Intracompany Transferee) Reform Act of 2003--Chambliss; S.J. Res. 4, Proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States Act of 2003-- Hatch, Feinstein, Craig, Sessions, DeWine, Grassley, Graham, Cornyn, Chambliss, Specter, Kyl; S. 700, Advancing Justice through DNA Technology Act of 2003--Hatch, Biden, Specter, Leahy, DeWine, Feinstein, Kennedy, Schumer, Durbin, Kohl, Edwards; S. 2396, Federal Courts Improvement Act of 2004--Hatch, Leahy, Chambliss, Durbin, Schumer; S. Res. 401, A resolution designating the week of November 7 through November 13, 2004, as ``National Veterans Awareness Week'' to emphasize the need to develop educational programs regarding the contributions of veterans to the country of 2004--Biden, Chambliss, Cornyn, Durbin, Feingold, Feinstein, Graham, Grassley, Kennedy, Sessions, Specter; and S. Con. Res. 109, A concurrent resolution commending the United States Institute of Peace on the occasion of its 20th anniversary and recognizing the Institute for its contribution to international conflict resolution of 2004--Inouye, Harkin, Warner.

Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on Tuesday, July 20, 2004, at 2:30 p.m., for a markup on the pending legislation. The meeting will be held in room 418 of the Russell Senate Office Building.

Agenda

1. S. 1153, the ``Veterans Prescription Drugs Assistance Act of 2004;''

2. S. 2483, the ``Veterans Compensation Cost of Living Adjustment Act of 2004;''

3. S. 2484, the ``Department of Veterans Affairs Health Care Personnel Enhancement Act of 2003,'' as amended;

4. S. 2485, the ``Department of Veterans Affairs Real Property and Facilities Management Improvement Act of 2004,'' as amended;

5. S. 2486, the ``Veterans Benefits Improvements Act of 2004,'' as amended.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on July 20, 2004 at 10:30 a.m. to hold a hearing on intelligence matters.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on July 20, 2004 at 2:30 p.m. to hold a hearing on intelligence matters.

Mr. President, I ask unanimous consent that the Committee on Governmental Affairs Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, be authorized to meet on Tuesday, July 20, 2004 at 9 a.m. for a hearing entitled, ``Building the 21st Century Federal Workforce: Assessing Progress in Human Capital Management.''

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions, Subcommittee on Substance Abuse and Mental Health Services be authorized to meet for a hearing on Performance and Outcome Measurement in Substance Abuse and Mental Health Programs during the session of the Senate on Tuesday, July 20, 2004, at 10 a.m.

Mr. President, I yield such time as he needs to the distinguished Senator from Idaho, and I will defer my remarks until after he finishes because he has a hearing scheduled in just a number of minutes, so we will turn to him first.

Mr. President, the distinguished Senator from Idaho has made some very important points. That is, this is now eight judges who the Democrats have indicated they would filibuster in the Senate, including this very excellent candidate for the Federal bench, William G. Myers III. We have never had filibusters of judicial nominees in the history of this country, not one time before. No one in the past has been willing to violate the rules in such a fashion until this President was elected.

It began with Miguel Estrada who, of course, removed his name from consideration. After having sat there for better than 2 years, he decided he better get back to his law practice. It includes another seven, including Mr. Myers, who the Democrats have indicated they will filibuster--in other words, try to talk to death this nomination. Since they have been able to keep control of almost everybody in their caucus, needing only 41 votes against cloture--in other words, against ending the debate so a vote can be taken--they have subverted the rules and have caused what is going to be called a crisis unless we can find a way around it.

It is a crisis now because excellent nominees have been badly mistreated in the Senate by not even getting a vote up or down. Once a nominee is brought to the floor, that nominee deserves, under the advice and consent clause of the Constitution, article II, section 2, a vote up or down.

If my colleagues on the other side do not like people, they can do everything they can within the committee to try and block the nomination there. But once that nominee is brought to the Senate, that nominee, under the advice and consent clause, deserves a vote up or down. Mr. Myers is no exception. He deserves a vote up or down. He is an excellent nominee, one who would have that vote up or down if the Senate were acting responsibly.

I rise today in strong support for the confirmation of William G. Myers III who has been nominated to fulfill the Idaho vacancy on the Ninth Circuit Court of Appeals.

Let me emphasize, when current Circuit Judge Trott takes senior status at the end of this year, and if the Senate refuses to even vote on Mr. Myers' nomination, there would be no Idaho representative on the Ninth Circuit Court of Appeals.

Federal Law 28 United States Code section 44(c) requires each State within a circuit must have at least one active judge serving on that circuit. We have heard a lot of discussion over the past few months about how circuit court seats should not be switched from one State to another out of respect for home-State senators. I hope the Senators who have raised those valid concerns afford Senators Craig and Crapo and the rest of us in the West the same respect they believe they themselves and their States deserve.

Again, this is not about Idaho having two or three or even one or two seats on the Ninth Circuit. It is about whether the Senate will refuse to even vote on filling Idaho's only active seat on the Ninth Circuit.

As I will discuss further, it is also about whether a qualified nominee can be blocked by a minority of Senators because he at one time or another represented ranchers, farmers, and miners in their efforts to make balanced use of public and private uses of public lands in the Western United States of America. These are among the greatest pioneers and greatest leaders of the intermountain West, these farmers, ranchers, and miners. These are good people. These are people who, like everyone else in our society, deserve representation. Many of them came to William G. Myers III for such representation. He represents them well, as he should, as an advocate. The fact that some on the other side of aisle do not agree with his advocacy is no reason to stop him from being the sole active Idaho judge on the Ninth Circuit Court of Appeals.

Bill Myers was nominated by President Bush in May of 2003, over a year ago, and his nomination was carefully examined, debated, and favorably reported out of the Judiciary Committee in early April. Democrats who opposed him in committee voted against him. That is their right. But they should not now delay all Senators the right to vote on this confirmation. Bill Myers deserves and is overdue for an up-or-down vote in the Senate.

I remind my colleagues that the Ninth Circuit is the most notoriously liberal Federal circuit in the United States. It is and has been for at least a decade quintessentially out of the mainstream of American jurisprudence. The infamous case in which this court held our Pledge of Allegiance is unconstitutional because it contains the word ``God'' is but one of many examples of its all too frequent perversions of Federal jurisprudence.

Fortunately, the Supreme Court unanimously reversed the Ninth Circuit in that case, one of 16 times in the 2003-2004 term alone the Court unanimously reversed or summarily vacated the Ninth Circuit Court of Appeals.

This past Supreme Court term, the Ninth Circuit was reversed or vacated 81 percent of the time. Even my liberal friend from New York, Senator Schumer, once noted the Ninth Circuit is ``way out of the mainstream on the left.''

As Senator Feinstein noted in the 1996-1997 term, the Ninth Circuit was reversed 20 of 21 cases. While some circuits had similar reversal rates, no other circuit came close to the number of cases considered and reversed. The same has been true since then. The

Ninth Circuit has been reversed 86.5 percent of the time since 1998. That is a disgrace to the Federal bench. In 58 cases the Court didn't even need to hear argument, they simply vacated the Ninth Circuit summarily. In the 2003-2004 term, Ninth Circuit appeals accounted for about one-third of the Supreme Court's docket, suggesting that the Court feels the need to focus disproportionately intense scrutiny on decisions from that circuit.

As I noted, about two-thirds of the Ninth Circuit reversals this past term, 64 percent, to be exact, were unanimous. This is a court that is desperately in need of good, nonactivist judges who will be faithful to the Constitution.

There is no doubt in my mind or in the mind of anybody who knows him that Bill Myers would be such a judge. One would think the Senate would welcome the confirmation of an expert on public lands and natural resources law to a court that has enormous influence over how disputes over the uses of these resources are resolved. Western Senators know all too well that the Ninth Circuit is the 900-pound gorilla of public lands, natural resources, and environmental law. Its decisions have significant and often adverse impacts well beyond the borders of its jurisdiction.

Yet today, and tomorrow, I suppose, we will hear it is Bill Myers who is out of the mainstream and not fit to join the ranks of the Ninth Circuit judges who routinely ignore law and precedent to rule based on their own personal policy preferences, both on natural resources issues and in many other areas of the law, including, but not limited to, the constitutionality of the Pledge of Allegiance and the death penalty.

The prejudices against Bill Myers reflect today's poisoned confirmation process: Nominees who somehow offend any well-funded liberal interest group are subject to distortions and baseless personal attacks, which the media echo chamber dutifully resound as proof positive of unfitness for the Federal bench. And with Bill Myers and his record, the distortions continue, baseless as ever.

His record as the Interior Department's Solicitor, where he was doing his duty to represent the policy positions of the United States of America, has been attacked because the liberal environmentalists do not like those policies. He has been vilified for daring to represent farmers, ranchers, and miners while in private practice, as if ranchers, farmers, miners, and those who make economic uses of Western lands are less entitled to representation than the elite, liberal environmental groups that attempt to dictate Western land policy from Eastern cities, while they derisively refer to most of our Nation as a flyover country.

So what is at stake is this: Is a judicial nominee disqualified from service on the Federal bench solely because he or she has advocated, successfully and competently, for people or policies that liberal groups of various stripes dislike? If the answer from my Democratic colleagues is yes, then I do not want to hear one more word--not one-- from any of them about how it is Republicans who are politicizing the judiciary.

There is no more blatant way for Senators to politicize and degrade the confirmation process than to reflexively disqualify nominees who have represented people and groups or advanced policies they do not like. Ask yourselves, is this vote on Bill Myers really about Bill Myers? If it is, you know and I know there is no reason on the merits to deny him an up-or-down vote. Or will this vote be a reflection of liberal disdain for policies favored by farmers, ranchers, miners, the Bush Interior Department, or anyone else who advocates balanced uses of Western lands?

If the latter is true, let me emphasize again for those who still do not get it, the Constitution did not and does not establish Federal courts as the policymaking branch of the Government. Federal judges should not make policy, though too often, especially on the Ninth Circuit, they do.

Policy debates ought to have no place in our consideration of a nominee's qualifications to serve as a Federal judge--unless we think he or she does not understand the proper role of Federal judges under our constitutional system.

Absent absurd and unfair distortions of his record, there is zero evidence that Bill Myers does not understand that proper role.

I would also like to remind my colleagues of some facts about Bill Myers that the liberal interest groups and the media have willfully ignored or deliberately misrepresented.

He has an exemplary record that includes service as a successful, committed advocate and public servant. As Solicitor for the Department of Interior, a position to which he was confirmed in 2001 without opposition, Mr. Myers supervised over 300 attorneys and 100 support staff in 19 different offices throughout the United States, and managed a $47 million annual budget. He has served as counsel here in the Senate to our former colleague Senator Al Simpson, and, as well, in the Department of Justice and the Department of Energy.

His confirmation is supported by Democrats, including former Wyoming Governor Mike Sullivan and former Idaho Governor Cecil Andrus, who also served President Carter as Secretary of the Interior, plus the Democratic attorneys general in both Colorado and Oklahoma, and Republicans alike. Five Western Governors, including the Governors of Hawaii, Montana, and Nevada, have written to the committee expressing their support and emphasizing ``the need for quality judges who will provide a balanced perspective to the Ninth Circuit's extraordinary caseload.''

I also want to respond to a blatant misrepresentation about Mr. Myers' record that was made by one of my colleagues who suggested, falsely, that Bill Myers ``thinks the Clean Air Act and the Endangered Species Act have harmed the environment.''

Well, as anyone who has bothered to read Mr. Myers' hearing testimony and written questions or even conducted a cursory review of his record would know, he thinks no such thing. In fact, I do not think he has ever said anything about the Clean Air Act at all.

Now in his responses to Senator Feinstein's written questions, Mr. Myers affirmed that congressional intent in passing the Clean Water Act was to ``restore and maintain the chemical, physical and biological integrity of our Nation's waters,'' and that ``the health of our Nation's waters is often inextricably connected to the health of adjacent wetlands.'' This is an extreme conservative position? Only in the sense that Bill Myers failed to endorse the full policy platform of Greenpeace.

Similarly, regarding the Endangered Species Act, we all know there have been cases in which Government authorities have abused their power under this law to confiscate private property without compensation. Let me give you one example, the 2001 Ninth Circuit decision in the Arizona Cattle Growers case. Here, a unanimous appellate panel, composed of two judges appointed by President Clinton and one judge appointed by President Reagan, wrote the following:

[T]he Fish and Wildlife Service acted in an arbitrary and

capricious manner by issuing Incidental Take Statements

imposing terms and conditions on land use permits, where

there either was no evidence that the endangered species

existed on the land or no evidence that a take would occur if

the permit were issued. We also find that it was arbitrary

and capricious for the Fish and Wildlife Service to issue

terms and conditions so vague as to preclude compliance

therewith.

So Bill Myers has been an advocate for farmers and ranchers who have challenged such abuses of this law, because their families' lives and fortunes depend on their ability to responsibly use land they own or lease. For such efforts, he is unfit for Federal judicial service? Give me a break.

Here is what Bill Myers has actually said about the Endangered Species Act. Contrast what he has said with what his opponents believe he thinks. He has said Federal agencies should not use it as a zoning tool on public lands.

Now, is that unreasonable? He argued in a brief on behalf of the American Farm Bureau and others that the Babbitt Interior Department regulations that defined the term ``harm'' in the Endangered Species Act in a way that essentially precluded any private landowners' use of property on which an endangered species might find habitat should be invalidated.

That sounds like a reasonable position to me. And I think it would be to anybody under similar circumstances.

Why, it might even be a reasonable position for some of my more liberal legal colleagues on the other side, if they bother to think about it.

Importantly, the Government had no intention of compensating affected landowners if these regulations rendered their land valueless, despite the Fifth Amendment's takings clause, and despite provisions in the Endangered Species Act itself that authorize the Government to compensate landowners in such situations.

So, again, are the positions taken by the American Farm Bureau and other farmers and ranchers extreme and unreasonable, disqualifying their lawyer from Federal judicial service? I think the obvious answer is no--unless every nominee to the Ninth Circuit must share the policy positions of the elitist and more radical environmental groups.

Let me make one related point. I will refer to a news report dated March 17, 2004, headlined: ``Grad Student Charged in SUV Arson.''

According to the article, a student with connections to the radical environmentalist group Earth Liberation Front firebombed and vandalized 125 vehicles at Los Angeles area car dealerships and private homes in August 2002. The words ``ELF'' and ``Fat Lazy Americans'' were spray- painted onto some of the vehicles.

ELF also took responsibility for a 2002 fire in San Diego that destroyed an apartment building and caused $50 million worth of damage. Just 2 weeks ago ELF is suspected of carrying out an attack in my home State of Utah at Brigham Young University.

When ELF extremists are arrested, they are represented by attorneys. Without in any way suggesting that anything Bill Myers has ever done or advocated approaches such actual extremism, are these attorneys presumptively disqualified from service on the Federal bench because of the criminal actions of their clients? Can we assume that they sympathize with the criminals' actions? In light of some Senate Democrats' apparently closed minds against a growing number of President Bush's nominees, perhaps we all need to think more carefully about how we answer such questions.

Some Senators apparently believe that nominees who do not think like they do, and will not advocate their pet causes while on the bench, deserve nothing more than to be filibustered--denied an up-or-down vote because they--a minority--know that a Senate majority stands ready to confirm these nominees.

Unlike those who are supporting such filibusters for purely ideological reasons, I do not believe that a nominee must share all of my favorite interest groups' policy views in order to deserve an up-or -down vote. And let me read what Bill Myers had to say on this at his hearing.

I would stand on my personal record that I cited a moment

ago that I have spent my free time in serving national parks,

such as picking cigarette butts out of fire pits. I have a

great love for the national parks. That is where we recreate

and that is where we go for sustenance, for spiritual

refreshment, and that is a personally-held view. The larger

view, though, and the one that is really important for this

Committee is whether I would carry into a judicial position,

if I were so lucky as to be confirmed, an ideology that would

result in a bias against or for any litigant.

And I think it should be noted that every nominee, I

suspect, that comes before you has both proponents and

opponents, and some of those people may hope that once that

person becomes a judge that they can either count on them to

do the right thing or cower in fear that they will do the

wrong thing.

I hope that both of those groups, the proponents and the

opponents, are disappointed; that when a person takes on

those robes, takes the oath of office, swears to uphold the

Constitution, that that means that they will follow the law

and the facts, wherever the law and the facts take them,

without regard to personal opinion, public opinion, friends,

or foes.

Ask yourselves, is this an ideological nominee? Out of the mainstream? As I said before, only in the eyes of the well-funded environmental extremist groups who cannot stand the idea of a Ninth Circuit judge who might not buy into all of their propaganda.

Finally, Bill Myers would fill an Idaho seat recently vacated by an Idaho judge. While no Federal judge should represent anyone or anything but Federal law, to the extent the Ninth Circuit currently represents anything other than embarrassment and summary reversals, it represents President Clinton, who appointed 14 of its active 26 judges four during election year 2000 alone. And let me note, for the benefit of those who now say it is too late in an election year to confirm judges, that Clinton nominee and current Ninth Circuit Judge Rawlinson was confirmed to his position on July 21, 2000, in the last year of the Clinton administration.

Bill Myers was a successful advocate for people and causes that deserve representation just as much as any environmental activist group, or any liberal's pet causes. As the Interior Department's solicitor, Mr. Myers defended balanced policy solutions to difficult questions of how our public lands and natural resources in the west should be managed. His confirmation will help balance a very out-of- balance Ninth Circuit, as well as ensuring that Idaho maintains its only seat on that court. I hope my colleagues will join me in voting to confirm this good man to the Ninth Circuit.

We have heard from the other side about the mythical ``Thurmond rule'' and all kinds of other suggestions that judges should not be confirmed from here on, this late in a Presidential election year. I remember way back when, cases where we confirmed judges, Democratic nominees, Carter nominees, even after President Reagan had won the election. In fact, one of them is sitting on the Supreme Court of the United States of America.

I remember when my colleagues came to me back in the year 1980 and asked if I would be willing to support then-Harvard law professor Stephen Breyer for the First Circuit Court of Appeals. I have to say there were some Republicans who didn't want that to happen. But he had been a wonderful chief of staff for Senator Kennedy on the Judiciary Committee. He was honest, decent, honorable, kind, worked well with both sides. He had all of the qualifications. There was no question about intelligence and ability. I led the fight to make sure he was confirmed. That was later in that year. There have been other cases as well.

It is wrong to set any arbitrary limits on when during the year the Senate can confirm judges. If a person is not qualified, that is one thing. But everybody we have brought to the floor has not only been qualified, they have been among the best nominees of my 28 years in the Senate. Mr. Myers is one of them. He is knowledgeable. He has held high-level positions in our Government. He has served with distinction. He has served well. He is one of the brightest people. He would represent Idaho in the only active seat Idaho would have. He certainly understands all of the problems in the intermountain West, an area where the Ninth Circuit Court of Appeals could use his knowledge. He is one of the top public lands and natural resource lawyers in the country.

He is a person of inestimable ability, great charm, decency, honorable ways, and capacity. He is a person who would have great temperament on the court. In other words, he is a person we ought to confirm. We should not get into these Mickey Mouse filibusters that fly in the face of the advise and consent clause itself, and which basically have cost the dignity of the Senate to a large degree.

Mr. President, I suggest the absence of a quorum and I ask unanimous consent that the time be equally divided.

Mr. President, I ask unanimous consent that the Committee on Governmental Affairs be authorized to meet on Monday, July 19, 2004, at 2:30 p.m., to consider the nominations of Neil McPhie to be Chairman, Merit Systems Protection Board, and Barbara J. Sapin to be Member, Merit Systems Protection Board.

Mr. President, I ask unanimous consent that the Special Committee on Aging by authorized to meet Monday, July 19, 2004 from 2 p.m.-5 p.m. in Dirksen 628 for the purpose of conducting a hearing.

Mr. President, I ask unanimous consent Spencer Kiggins, James Mainord, and Anand Singh be granted floor privileges during the debate on the nomination of Mr. Myers.

Mr. President, I address the DeWine-Kennedy amendment to H.R. 4520, the American Jobs Creation Act of 2004.

Let me say at the outset that I will vote for this proposal tonight, because I am fully supportive of measures to end tobacco use in the United States. I can think of few public health dangers worse than tobacco, and this is especially true for young people. Certainly, in my home state of Utah, I hear time and time again from concerned parents and health advocates who point out the devastating health consequences of tobacco use.

So, I think it is critical that we go to conference on this issue. However, my support for the amendment is not without some serious reservations, and I hope they can be addressed and corrected in conference.

My first concern is that the committee of jurisdiction, the HELP Committee, should have had the opportunity to consider fully the text of S. 2461, the Family Smoking Prevention and Tobacco Control Act, which is included in the DeWine-Kennedy amendment, before it is brought to the floor for this vote.

Having been the chairman of that committee for several years, I know full well the complexities of the Federal Food, Drug and Cosmetic Act. Three hours of debate are not enough time to consider legislation that makes such dramatic changes to current law.

I have only had a short time to review this legislative language but I believe there are several troubling components. For example, the tobacco company marketing provisions alone in this amendment raise serious 1st Amendment issues, as do the provisions granting authority to state and local governments to impose specific bans or restrictions on the time, place and manner of tobacco advertising. I would have preferred we have a more lengthy debate on about the implications of these provisions before we vote.

I also think we need to give serious study to the drafting of the language providing the FDA with the authority to regulate tobacco products. This area of the law is extremely complex. In addition, I must point out that the FDA already has been charged with numerous responsibilities and has been criticized time and time again for its inability to meet statutory requirements due to funding constraints. In fact, just yesterday, I held a hearing in the Senate Judiciary Committee on the safety of imported drugs where FDA officials told members of my Committee how difficult it would be for them to ensure the safety of imported drugs because the agency is already strapped for resources. How can we expect the FDA to take on new responsibilities without supplying the agency sufficient funding for performing its current duties?

In closing, let me address the tobacco buyout provisions.

Mr. President, I am all for measures to reduce our Nation's dependence on tobacco, and measures to encourage less tobacco production are an important part of that equation.

I am encouraged that the amendment we are considering tonight does not use taxpayer funds to accomplish the buyout. That is an important point. I also recognize that the program will help get the Government out of the farming business while making temporary assistance available to farmers as they adjust to the free market. That being said, questions worthy of serious consideration have been raised about where this assistance will go, and I think we need to study that more.

Mr. President, I rise today to support the United States- Australia Free Trade Agreement. I do so because it is good for the cause of free and fair trade, it is good for the United States, and it is good for Utah.

I wish to commend my colleagues on the Senate Finance Committee, particularly Chairman Grassley and ranking minority member Baucus. They have assiduously worked with the administration to complete the legislation implementing years of negotiations. Working with our colleagues on the Ways and Means Committee, we have prepared legislation that, I believe, will pass overwhelmingly in both Houses. That it does so reflects on the strengths of this agreement, and on the hard work of members in both committees. To date, the process for putting this agreement in place has been fair. Members have been given ample opportunity to voice any concerns they may have about the substance of this agreement both on the Senate floor and in briefings with the U.S. Trade Representative's office. No one can legitimately say this has been a partisan process. No one can legitimately say they have not had a chance to review and comment on this historic agreement.

However, this agreement would not have been completed had Congress failed to provide the President with fast-track trade promotion authority. These agreements are complex, and the interests are vast, and, as we know, Congress can slow the process by endlessly nitpicking details for political advantage. Without trade promotion authority granted by a majority of this body to the President in 2002, the President would have failed to advance his agenda of creating American jobs by leveraging the strength of our economy into free and fair trade regimes created by us.

Toward that last point, I wish to commend the small team at the United States Trade Representative's Office, led by the extremely able Robert Zoellick, for their work through these years in advancing the President's free trade agenda. The Australia Free Trade Agreement before the Senate will boost our economy while advancing bilateral relations with our strongest partner in Asia as a result of the dedication of Bob Zoellick and the people at USTR.

Australia stood with us in our foreign policy challenges throughout the 20th century. In the beginning of this century, which was marked so soon after by the attacks of September 11, and our response with the global war on terror and the war to destroy the regime of Saddam Hussein, Australia has continued to stand with us. We have a history of friendship, based on shared civic values of democracy, individual freedom and free markets. We have no closer ally in Asia.

Of course this is not a sufficient reason to grant a free trade agreement, or FTA. The necessary and sufficient agreements in granting FTAs have to do with opening markets in a way that will fairly allow U.S. products to compete. I am pleased to observe that in this area, the Australia FTA does a superb job. In fact, the Australia FTA eliminates 99 percent of Australia's manufacturing tariffs immediately, giving U.S. firms an average 5 percent price advantage over international competitors in the Australian market. As well, the FTA grants tariff-free access to Australia's agricultural market for U.S. exporters, grants enhanced preferential access to U.S. services exporters to Australia, and removes foreign investment screening for several types of U.S. investment.

For my home State, this FTA gives Utah businesses a distinct advantage over their international rivals when trading with Australia. Australia's market is the 12th largest market for Utah goods, with total exports valued at over $67 million in 2003. The implementation of the Australia FTA will provide a large boost to Utah's auto parts, processed foods, sports equipment and medical equipment companies. These important and large industries within the State of Utah will now be able to export 99 percent of their goods to without facing manufacturing tariffs, this gives them, on average, a 5 percent price advantage over international competitors in the Australian market.

There are nine Australian-owned companies currently operating in Utah which insource several hundred jobs for Utahns. In all, there are over 320 jobs in Utah that are directly supported by trade with Australia, and hundreds more that are indirectly supported by Australian trade.

No agreement is perfect, whether it is with a developing economy, or a modern and developed economy, like Australia's. This FTA will provide an immediate opening to Australia's large market for agricultural products from our States. Currently, our prolific U.S. agricultural producers export more than $400 million in products to Australia.

In terms of granting access for Australian beef, the agreement allows for us to increase the beef import quota over an 18-year period. Quota increases to be granted in the first 3 years are conditional upon U.S. beef exports reaching 2003 levels, so that Australian beef exporters will not be able to exploit recent drops in U.S. beef exports caused by the mad cow scare. While quotas within tariffs will be removed, above- quota tariffs will also be phased out over time. The Congressional Research Service reports that ``initial quota increases represent an estimated $50 million in additional imports--less than \1/4\ of 1 percent of the value of annual U.S. beef output, and 1.6 percent of the value of U.S. beef imports.'' In addition, the agreement provides safeguards that will protect U.S. beef producers from surges in imports from Australia. These safeguards are permanent and apply to the transition periods, as well as after the transition periods.

This agreement is going to be good for the American economy. In addition to manufacturing and agricultural products, it provides an immediate opening in Australian markets for financial services, electronic commerce and U.S. investment. In the latter category, we should appreciate the implications of allowing U.S. investment to now use Australia as a base for greater expansion into the rapidly growing Asian markets. The benefits of this FTA to the U.S. economy equate to about $500 million per year. This translates into more U.S. jobs.

And, for me, this is the bottom line. Economic policymakers both in Congress and in President Bush's administration recognize that the most fundamental goal of economic policy is to support the economy and create American jobs. American workers, farmers and cattlemen are the most industrious and productive in the world. That is why, as the U.S. has expanded trade regimes based on the principles of fairness and transparency that define our economy, the U.S. has always been a net winner. The rest of the world wants to buy our goods because they are the best quality at the most affordable prices. The rest of the world wants to sell in our markets, because to do so, they must create products that compete in the most open and efficient market in the world. Successful U.S. free trade agreements protect our principles, advance our values, and provide opportunity for all those who compete fairly. And fair competition is something the citizens of Utah support. For these reasons and more I support the swift approval of this implementing legislation.

How much time remains on both sides?

Mr. President, we have heard that this amendment has been compared to prohibition, kiosks, and bumper stickers. We have heard some eloquent and passionate speeches in the Senate these past few days. It is obviously an issue many feel strongly about. I make a couple of things clear before we vote on whether we can even debate this amendment postcloture.

First, the proponents of this amendment are not seeking a policy change. We are simply trying to preserve more than a 5,000-year-old institution, the most fundamental in all of our society, that a few unelected, activist judges are trying to radically change.

Some of my colleagues suggest we do not need a national policy on marriage. Guess what. We have always had one. When my home State of Utah wanted to enter into this great Union, the Federal Government conditioned such acceptance on our adoption of a one-man, one-woman marriage policy. The Federal Government understood then what we still know today, that children are best off having a mother and a father.

Most of my colleagues agree. Some argue it does not belong in the Constitution. The Constitution properly deals with foundational questions of how our Nation should be organized.

Traditional male-female marriage is the universal arrangement for the ordering of society and ensuring future

generations. If a foundational institution such as this is not deserving of our protection in our Constitution, then I don't know what is.

There are others who agree on preserving traditional marriage and agree an amendment may be necessary at some point in the future. We do not need to wait. Judges have already sanctioned marriage licenses for same-gender couples and those couples have spread to 46 States. Folks, marriage has already been amended by the Massachusetts Supreme Court.

Some of my colleagues say the Defense of Marriage Act will contain the spread to other States, but we know this is a flimsy shield, at best. There are multiple actions pending against it now and legal scholars across the political spectrum agree it is only a matter of time--not if, or when--the Defense of Marriage Act will be struck down.

We should be wary of those who argued back in 1996 that the Defense of Marriage Act was unconstitutional and now are hiding behind this act to argue against the need for a constitutional amendment. Members simply cannot have it both ways. If Members believe a marriage should be between a man and a woman and Members believe the Federal Defense of Marriage Act is unconstitutional, then they should support the Federal marriage amendment.

We know from other countries that have undermined marriage the way the Massachusetts Supreme Court did that a message is sent to everyone that marriage is not important. Fewer couples get married, out-of- wedlock births skyrocket. We do not need to wait for these disastrous results to happen to our country.

We have the chance to send the message here that marriage and family do matter. This is not an irrational fear derived from an extreme religious agenda, as my colleague from Vermont, Senator Jeffords, suggested yesterday. We know from the benefit of experience in Scandinavia, Denmark, and elsewhere, what happens. Everyone in society benefits when we strengthen the family.

As far as I am concerned, this debate has been a triumph for democracy. We have debated these issues. I, for one, have learned quite a bit from listening to my colleagues. I hope the American people have, as well.

I urge my colleagues to vote yes on the motion to proceed. If there is a way to improve the language, the only way we can do so is to vote for cloture and have a real debate rather than the filibuster we are putting up with.

I make it clear nobody wants to discriminate against gays. Simply put, we want to preserve traditional marriage. Gays have a right to live the way they want. But they should not have the right to change the definition of traditional marriage. That is where we draw the line.

I compliment people on both sides of the debate for at least debating as much as we can, but it would be far better to vote cloture and have a full-fledged debate on this amendment. If it needs to be changed or modified, or if it can be made better, both sides then will have an opportunity to try and amend it.

I reserve the remainder of my time.

I yield the remainder of my time to the distinguished Senator from Oregon.

If this amendment was passed as the Senator reads that language, it does not prohibit the States from having civil unions or civil accommodations.

So long as the action of the State, either legislatively or constitutionally, does not change the definition of a marriage as only between a man and a woman, the State would have the right to do whatever it wants to in that regard. This just merely makes it clear that nothing in the amendment requires the States to--

The States would have great flexibility under this amendment. But they could not change the definition of the traditional terms. The Senator is correct in his interpretation.

I am happy to yield.

I think Senator Brownback would like to be recognized. Following Senator Clinton, Senator Brownback will speak.

He hopes. I have not noticed the great sense of humor lately of the Senator from Nevada but that was very good.

I will respond to some of the arguments that my colleagues have been making against this measure today.

First, I thank them for coming to the floor and making themselves heard. This is an extremely important issue and it deserves a serious debate. After all, we are talking about traditional marriage. We are talking about traditional marriage that has existed for more than 5,000 years that apparently is going to be overturned if we do not do something about it.

One argument I have heard from my colleagues on the other side of the aisle is on behalf of States rights. Yesterday, the distinguished Senator from California argued that we run the risk of violating the sacred rights of the States if we pass this amendment. This morning, her colleague from California, the junior Senator from California, made the same point. The distinguished Senator from Wisconsin, too, believes marriage should be defined in the States.

When Senators who normally argue for extending national power start citing George Will and Bob Barr, we should probably look at their arguments with a heightened level of scrutiny and maybe even security because there is something wrong here when these liberal Senators are using as their champions George Will and former Congressman Barr, who is one of the most conservative Congressmen who ever sat.

When legislators and other advocates who not only tolerate but actually embrace repeated judicial amendments to the Constitution--I will talk about judicial amendments to the Constitution--there is sudden resistance to popular amendments, the people's amendments, it must be taken with at least a grain of salt.

We are talking about judges taking over and amending the Constitution at will, which is what is happening in our society, and not only Justices of the Supreme Court but four liberal activist justices on the Massachusetts Supreme Court, binding every State through the full faith and credit clause to their concept of same-gender marriage. It was a 4- to-3 vote. Three liberal justices disagreed with the four liberal justices in Massachusetts.

They surely know, these friends of ours on the other side who are suddenly finding the importance of States rights, they surely know that by opposing a constitutional amendment to protect marriage, judges will continue imposing same-gender marriage over the will of the American people or over the will of the people in the States.

Their constituents deserve better than these misleading arguments. They know that.

We did not choose the schedule for this issue. It was chosen for us. And we do act reluctantly.

Let me pose a question. If this is such a political issue, why did President Bush and Vice President Cheney indicate on the campaign trail in 2000 that it was premature to pursue an amendment? They both did, by the way. The American people were as opposed to amending traditional marriage then as they are now. The reason for this change in strategy is quite simple. In the year 2000, an amendment was premature. It is no longer.

In 1996, not one State required same-gender marriages--not one. Now, however, Massachusetts has. Massachusetts has, I have to say, because same-gender marriage is the law of the Commonwealth of Massachusetts, determined by four activist, liberal justices.

Today, 46 States, for the first time in history, have same-gender married couples living in them. That was not the case in the year 2000. And the argument that it was premature to call for a constitutional amendment was a good argument at that time, but not today, with 46 States with same-gender married couples living in them, and one State imposing its will through judicial legislation, if you will, on all 50 States.

Eleven States are having not only their traditional marriage laws but even a State amendment, in the case of Nebraska, targeted by committed interest groups. In Washington State, a couple married in Oregon is seeking recognition of their marriage. In New York, Attorney General Eliot Spitzer has amazingly concluded that even though New York law explicitly limits marriage to between a man and a woman, he--I guess the ``god almighty'' Attorney General of New York, Eliot Spitzer--will recognize same-gender marriages performed out of State.

He may be right because under the full faith and credit clause, that is what is going to be imposed on all States because of four avant- garde liberal justices in Massachusetts.

The list of legal challenges goes on. In the year 2000, when President Bush and Vice President Cheney urged patience on this issue, traditional marriage was secure. The States could handle this issue on their own. Today, they no longer can, all because of four activist, liberal justices in Massachusetts versus three liberal justices in Massachusetts, in a 4-to-3 verdict.

Courts are poised to remove this issue from them, destroying the democratic principle of self-governance that some of these folks on the other side are arguing should never be done. Why, the States ought to have the right to determine these things for themselves.

Well, let me go over that one more time.

Courts are poised to remove this issue from the States, destroying the democratic principle of self-government that our Constitution was established to guarantee.

Gov. Mitt Romney, in his testimony before our committee last month, got the point and demonstrated the impact of his State court's decision to sanction same-gender marriage. I quote him:

The effect of one state recognizing same-gender marriage

will not be confined to Massachusetts alone. Our state's

borders are porous. Citizens of our state will travel and may

face sickness and injury in other states. In those cases,

their spousal relationship may not be recognized, and it

would be likely that litigation would result. Massachusetts

residents will move to other states, and thus issues related

to property rights, employer benefits, inheritance, and many

others will arise. It is not possible for the issue to remain

solely a Massachusetts issue; it must now be confronted on a

national basis.

We need an amendment that restores and protects our societal definition of marriage, blocks judges from changing that definition, and then, consistent with the principles of federalism, leaves other policy issues regarding marriage to State legislatures. That is how the States can control this. That is the right way to have the people in charge rather than four liberal justices imposing this on all of America.

Like I say, I think gay people have a right to their lifestyle, certainly in the privacy of their home. But they do not have the right to impose that lifestyle or to impose their views on everybody in America by changing the definition of marriage. They should not have that right.

The real threat to the States is not the constitutional amendment process, in which the States participate, but activist judges who disregard the law and redefine marriage in order to impose their will on the States and on the whole Nation.

Governor Romney's diagnosis is correct. At this point, a commitment to States rights is a recipe for depriving States of any authority over the matter.

And so our Republican leadership did what leaders do, they adjusted their direction. Because the situation today is vastly different than what we faced in 2000, we require a different solution.

Our goals are not what Mrs. Boxer, the distinguished Senator from California, has described. Nobody here is concerned about whether same- gender couples should care about each other. Nobody here denies them that right. Nobody here is even concerned about that. And nobody is concerned about whether they are moving in down the street.

What we are concerned about is the likelihood that the courts are going to amend the laws in every State in the land by judicial fiat. We are concerned that a small interest group is lobbying the courts to do its dirty work, hoping that judicial fiat will accomplish what it cannot achieve in open political debate.

In not one State has the legislature amended its laws to allow for same-gender marriage--not one. We are fooling ourselves if we think that the courts care. They have already begun their work to undermine traditional marriage. And rest assured, more is on the way. If the States think they have sufficiently protected their traditional commitments to marriage, they had better think twice.

What we are witnessing is an unprecedented usurpation of the people's will. But those who support this judicial disregard for popular authority do not bravely defend this irresponsible activism. Instead, they take the easy way out. It should be left to the States, they say. Easier said than done. The fact is, these decisions are already being removed from the people by judicial fiat, by four justices in Massachusetts, of all places. The laws of this country, the laws of every State in the Nation, will be amended to allow for same-sex marriage absent our action. The two distinguished Senators from California, and the distinguished Senator from Wisconsin, Mr. Feingold, and many others, do not address this likelihood in the least--not in the slightest.

As Senator Daschle is aware, the people of South Dakota are adamantly opposed to judicial amendment of their traditional marriage laws, and I suppose in most other States as well--in fact, every other State. For that reason, he has said he opposes same-gender marriage. But what happens when a gay couple moves from Massachusetts to South Dakota and seeks to have its union recognized? On this point, which is really the only question in this debate, he and his allies fall silent. What happens? Under the full faith and credit clause, that marriage is going to have to be recognized.

Unfortunately, the will of those citizens will not matter in the least to a judiciary bent on securing same-gender marriage throughout the land. We have demonstrated through our discussion of the Lawrence case, the Romer case, and the Defense of Marriage Act, that the courts are ready to act. It is telling that in a constitutional debate we have not heard one peep from the opposition about these relevant legal precedents.

I can understand how these discussions might make the opposition uncomfortable. Their lesson is clear. Same-gender marriage will replace traditional marriage unless we act. It is that simple.

And you folks out there watching this, you better tell your Senators they better act on this or traditional marriage is going to bite the dust because of four activist, liberal justices from Massachusetts who had one more vote than the three who voted against them.

When we see cracks in a dam, we take steps to repair those cracks. We do not wait until the dam breaks and we have to build a new one. Well, the only way to repair the current legal situation on marriage is to pass a constitutional amendment. I wish it was not, but it is.

My colleagues are not addressing the legal concerns. Instead of arguing about the Constitution, some of them have taken cheap shots and contend that we are engaging in discrimination. Come on. We are in the 21st century. I don't know of anybody in this body who engages in discrimination. Certainly I don't.

Does this mean more than three-fourths of the States are bigoted? That is how many enacted the Defense of Marriage Act to preserve traditional marriage. Does this mean the vast majority of the American people are bigoted? Or that Senators John Kerry and John Edwards are? Of course not. What about Rev. Walter Fauntroy, former Member of Congress, the African-American pastor of Washington's New Bethel Baptist Church, and Bishop Wilton Gregory, the African- American president of the United States Conference of Catholic Bishops? The answer to all of these is no. Similarly, I do not think it is proper to conclude that the more than 60 percent of Senator Boxer and Feinstein's own constituents who voted for traditional marriage are bigots either. They are not.

Those making these slanderous accusations are well aware that many of those in favor of an amendment have frequently pursued legislation to protect the rights of gay citizens. Our attempts to protect traditional marriage laws have nothing to do with the private choices of gay and lesbian citizens; they have everything to do with the right of the American people to protect traditional marriage, which, in addition to its private elements, is a public institution with clear public purposes--namely, the rearing of future citizens. Our efforts simply seek to maintain the right of the American people to decide this issue for themselves through their elected representatives, which will be taken away from them if we allow the Supreme Court of Massachusetts to dictate this rule of law to every State in the Union.

My colleagues making these arguments might want to at least look at article V of the Constitution. An amendment only becomes law once three-quarters of the States agree to it. In short, the States are the integral part of the amendment process. I have stopped trying to make sense of some of these so-called arguments of those opposed to protecting traditional marriage, but this one, that an amendment that requires the consent of the States would undercut the rights of the States, is particularly galling.

There is no going back now. This issue will be decided one way or another. Either the American people will amend the Constitution to protect traditional marriage or the courts will ignore the expressed commitments of citizens in every State and amend the Constitution to require same-gender marriage. The choice is ours.

I simply don't understand how the opposition can seriously claim that this issue does not merit our attention. I suggest it is one of the most important issues to ever come before either body of Congress. Without self-government, all of our other rights are for naught. That is exactly what is at stake. We are expanding rights through this amendment. We are further securing the rights of democratic communities to decide this most important of social policies on their own, rather than having them stripped from them by unaccountable and unrepresentative judges.

Let me make this last point absolutely clear: We are not restricting rights with this amendment. We are expanding the rights of democratic communities to decide issues for themselves.

Before I close, I would like to go through a few of these charts because I believe they make the case very well. This first chart says, ``Not one legislature has voted to recognize same-sex unions.'' Think about it. In 1996, not one had voted to recognize same-sex unions, not one. All of the blue stands for the zero. But in 2004, we now have 46 States with same-sex married couples from Massachusetts and some of these other rogue jurisdictions. As you can see, there are very few States--only four--that do not have it: Maine, West Virginia, Louisiana, and Montana. Every other State has same-gender marriages within those States that will have to be recognized under the full faith and credit clause against the wishes of those particular States.

Look at this next chart: ``States that define marriage as a union between a man and a woman.'' The red States or orange States are States that define marriage as the union between a man and a woman. The only ones that do not are Oregon, New Mexico, Wisconsin, New Jersey, Connecticut, Rhode Island, Massachusetts, and New York. They are the only States that have not defined marriage as only between a man and a woman. All other States have done that, including Alaska and Hawaii, the two that are out in the ocean there. That is a very telling chart. We have these people saying: We are taking the rights away from the people to decide these things. No. We are taking the rights away from the courts to tell everybody in America what they should do, and all these States that have enacted traditional marriage laws, all of these States are going to be overruled by four liberal, activist, radical justices on the Massachusetts Supreme Court.

Look at what Kevin Cathcart of Lambda Legal, one of the leading gay rights organizations, said:

We won't stop until we have [same-sex] marriage nationwide.

Justice Scalia was very prescient when he said:

The Lawrence decision leaves on pretty shaky grounds State

laws limiting marriage to opposite-sex couples.

Evan Wolfson, director of Freedom to Marry, another gay rights organization, said:

But when Scalia is right, he's right. We stand today on the

threshold of winning the freedom to marry. This is a big

issue.

Professor Laurence Tribe, highly respected liberal spokesperson for the liberal cause, constitutional law professor at Harvard Law School, a person I personally enjoy listening to, very

bright, very fine teacher, he had this to say:

You'd have to be tone deaf not to get the message from

Lawrence that anything that invites people to give same-sex

couples less than full respect is constitutionally suspect.

Now, one last one here. This last one shows States with pending court cases involving same-sex marriage. The ones that are in the rust color, you will notice, are States with pending court cases involving same-sex marriage. These are the States where already we have pending cases: Washington, Oregon, California, New Mexico, Wisconsin, Indiana, Florida, North Carolina, West Virginia, Pennsylvania, Maryland, Delaware, New Jersey, New York, Vermont, and Massachusetts. Those are States where we already have pending cases forcing this on those States. I suppose that most all the others will, too, but they may not have to go into all the other States because any one of those States could also impose this, as Massachusetts has done as well.

We are talking about a very important issue, and that is that gays should have a right to their own way of living. I would certainly stand up to try and do what is right and fair for gay people in our society. I have. I have done it and taken a lot of criticism for having done so. I have been right to do so. But they should not have a right to redefine traditional marriage through four activist, liberal justices in the State of Massachusetts imposing their will on all of America because of the full faith and credit clause.

Even though 40 States have adopted the Defense of Marriage Act, most constitutional scholars agree that the Defense of Marriage Act will be ruled by these cases unconstitutional, and thus every State in the Union, against the will of the people, will have to recognize gay marriage, or will have their concepts of traditional marriage, which have been uniform throughout the country just blasted into smithereens--all, again, because of a liberal court in Massachusetts.

I hate to say this, but it is true. Our colleagues on the other side want liberal judges. The reason is because liberal judges can enact legislation from the bench. You will notice the word ``legislation'' should never be part of the judging process. But they can and will enact legislation, as these Massachusetts judges have done, which these liberals could never get through the elected representatives of the people in a million years. They don't want the people to decide this. They want the courts to decide it. That is what they say when they say they believe in States rights--that Massachusetts should determine for all of America how marriage should be defined.

As you can see, we are in a plethora of lawsuits. It is not going to stop until we take the bull by the horns and pass a constitutional amendment. I think most people would acknowledge that this amendment does not have the votes at this point; it doesn't have 67 votes. But this debate is very important. I don't know of a more important debate in our country's history. If we undermine traditional marriage in our society, I think we are going to regret it.

I don't think judges should determine the sociology of our society. I don't think they should be legislating from the bench. I don't think judges should be making these decisions unilaterally, and a 4-to-3 decision was made in this particular case. I think the people ought to make this decision. We know that 40 States have already adopted the Defense of Marriage Act, which is likely to be struck down. I believe the other 10 States will adopt it before it is all over. This was done by four activist judges in Massachusetts versus three others who are also liberals, but they would not go as far as to strike down traditional marriage.

I yield the floor.

Mr. President, I have been watching this debate and there hasn't been much from the other side, but I commend the distinguished Senator from California for at least coming to the floor and expressing her viewpoints on this. As you know, she is a very important member of the Senate Judiciary Committee, and I enjoy working with her. I also understand her arguments that the States ought to decide these issues. But more preferably interpreted, if she likes the status quo that means the State courts must decide these issues and not the people of the States or the State legislatures. Frankly, I agree that the States should be able to decide these types of issues. The powers should not be taken away from them and given to the courts.

In fact, 40 States have decided this issue in the Defense of Marriage Act, called DOMA. You would think that would be enough. I believe the other 10 States will adopt the Defense of Marriage Act over time which provides a marriage should be between a man and a woman.

If my colleagues believe that the States ought to decide these matters, then they have to acknowledge that the 40 States which have should trump the 4-to-3 decision by an activist Massachusetts Supreme Court.

The debate over marriage boils down to two fundamental questions: Should our goal be to keep marriage limited to a man and a woman? And, if so, is amending the U.S. Constitution necessary to accomplish that goal?

The answer to both questions is yes.

The first question, whether we should keep marriage between a man and a woman, can be examined in several ways. First, we can look at different kinds of polls. In the last few months, polls by reputable news organizations such as CBS News, FOX News/Opinion Dynamics, Newsweek, Time/CNN show that by at least 2 to 1 Americans would not redefine marriage. Not only is this polling overwhelming, but it exists in the face of a barrage by the liberal media urging a different answer to this question. These polls tell something about the opinions of individual Americans, again, that flies in the face of having four justices in Massachusetts decide under the full faith and credit clause to impose this upon everybody in America rather than have the people in America or the people within the individual States decide these matters. These polls tell something about the opinions of individual Americans.

Another kind of poll examines what the elected representatives of the American people do on their behalf. Two years ago, the Supreme Court repeated its long-held guidance that ``the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures.'' That evidence confirms the same conclusion: The American people oppose redefining traditional marriage.

In 1996, Congress overwhelmingly passed the Defense of Marriage Act. As I mentioned, 40 States have adopted it and President Clinton, a Democratic President, signed it into law. As its name implies, this legislation was intended to defend what marriage has always been, a union between a man and a woman.

Since 1996, the citizens and legislatures in nearly every State in the Union have taken one or more steps to further protect traditional marriage. Again this year, citizens in several more States have collected hundreds of thousands of signatures to put before voters State constitutional protection for traditional marriage.

Speaking of signatures, last Friday, some of my colleagues received nearly 1.5 million petitions from Americans to protect traditional marriage and more are on the way.

This issue is not going to go away. Whether traditional marriage should remain what it always has been, the goal most Americans support, requires amending the U.S. Constitution. If the answer is yes, no one should be able to get away with professing support for traditional marriage but refusing to do what is necessary to make it real. Some have indeed tried to have it both ways, saying they want to keep marriage between a man and a woman but refusing to take any real steps to do so.

Last Friday, for example, I pointed out how Senator Kerry, the distinguished Senator from Massachusetts, has publicly said marriage should be between a man and a woman, yet voted against the Defense of Marriage Act which would allow that to occur. I pointed out he said there is no reason to vote for the Defense of Marriage Act because the States have enacted contrary to it. His own State, since then, has.

Does that mean he would vote for a new Defense of Marriage Act or does it mean that he would vote for the only thing that can possibly change the situation, and that is a constitutional amendment? He has indicated he will not.

Members cannot have it both ways. Members cannot vote against DOMA, argue it is unconstitutional, and now say that a constitutional amendment is not necessary because DOMA won't protect us. This is exactly what the junior Senator from Massachusetts is doing.

Look at this chart, ``But isn't DOMA unconstitutional?''

Senator Kerry said in the Advocate, September 3, 1996:

DOMA does violence to the spirit and letter of the

Constitution.

In other words, it is unconstitutional, he said in 1996.

The distinguished senior Senator from Massachusetts, Senator Kennedy, in his remarks on the floor of the Senate September 10, 1996, said:

Scholarly opinion is clear: [DOMA] is plainly

constitutional.

Professor Laurence Tribe of Harvard Law School, a heralded liberal professor, for whom I personally have high regard and consider a friend, in a letter submitted to the record of Senate proceedings on June 6, 1996, said:

My conclusion is unequivocal: Congress possesses no power

under any provision of the Constitution to legislate--

As it does in DOMA--

any such categorical exemption for the Full Faith and Credit

Clause of Article IV.

And the ACLU, in February of 1997, said:

DOMA is bad constitutional law . . . An unmistakable

violation of the Constitution.

These are leading liberals who do not think DOMA or the Defense of Marriage Act was constitutional, yet today argue against the only way to resolve this matter. Oddly enough, most all of them are saying the States ought to decide these matters.

I agree. If we pass a constitutional amendment, it will be up to the States whether or not that constitutional amendment will be ratified, and three-quarters of the States will have to ratify it in order for it to be ratified. I might add, that means the people themselves will have to be very much involved in it throughout the country, unlike having four judges in Massachusetts decide this issue for all of America. Once they decided that Massachusetts law, then under article IV of the Constitution, the full faith and credit clause, every State in the Union must recognize those Massachusetts marriages, which would upset the domestic relation laws of 49 other States.

Let's face it, one of the reasons so many of my friends across the aisle will argue strenuously this week that the time is not ripe for consideration of this issue on the Senate floor, or that the Senate has much more important things to do, is because they wish to avoid getting crosswise with the tens of millions of Americans who support traditional marriage. It is more than tens of millions, it is hundreds of millions of Americans who support traditional marriage. Yet, also, they do not want to offend their many supporters who wish to allow these novel, nontraditional, same-gender marriages.

I cannot blame them for feeling that way, but sometimes you have to make decisions in this body that make sense and that are right, that are moral decisions. There is nothing more important than marriage and traditional family marriage at that. Sustaining traditional marriage is absolutely critical to our country. I don't care how important economics or any other issue is, this is one of the most important issues in the minds of most Americans, and it should be because our moral climate depends on what we do here.

For my friends on the other side, their politically expedient solution is this: As quietly as possible, vote against the marriage amendment today and leave it up to the court to reinterpret the Constitution tomorrow. That sounds pretty good. Why don't we just leave it up to the courts? We have had a lot of 5-to-4 decisions in the Supreme Court. This was a 4-to-3 decision in a State supreme court that will bind all of America. That is what they want. They want the courts to do that which they could never get through the elected representatives of the people as evidenced by both the distinguished Senator from Massachusetts, who is running for President and his Vice Presidential nominee who is from North Carolina, who is also running. They both believe traditional marriage ought to be maintained, but they do not believe we should do anything about it if it is not. I hope we can change their minds.

The real question is whether protecting traditional marriage requires amending the Constitution. As Senator Smith, the distinguished Senator from Oregon, said in the Senate last Friday, it would be better if the answer were no. Polls suggest that many Americans would prefer their elected representatives be able to legislate in this area. That, indeed, is the way it was traditionally done.

In polling, as in life, however, the devil is in the details. A CBS News/New York Times poll in March asked whether laws should be determined by the ``Federal Government or by each State government.'' This sounds as if the choice is between the Federal or State legislatures. That, however, is not the choice and never has been. The choice today is between the judiciary and the legislature. But the polls never asked about that. In other words, polls are polls are polls, depending on how the question is raised.

The fact is, the judiciary is deciding for all of America, and an obscure supreme court in Massachusetts, at that is deciding this issue for all of America. So the States really do not have a chance to decide this issue on their own because if the supreme court of the State of Massachusetts, if that ruling is continuously upheld, and it appears it will be, even by the Supreme Court under the Lawrence case, then every State in the Union is going to be bound by those marriages.

Another poll taken at the same time--this one by ABC News and the Washington Post--asked whether Americans would support amending the U.S. Constitution ``or should each state make its own laws''--another false choice. Activist judges are rapidly making it impossible for States to make their own laws regarding marriage, making a constitutional amendment the only option, if we want to preserve traditional marriage.

The polls never ask about that. These highly misleading polls make one wonder whether the liberal media outlets conducting them have some kind of agenda here. No. I know that is being skeptical, but I think almost anybody with brains would conclude they do have an objective here.

Does protecting traditional marriage require amending the U.S. Constitution? The best prescription depends on an accurate diagnosis. Simply put, when an issue such as this one that traditionally was decided by State legislatures is redefined by judges in constitutional terms, the only effective option is amending the Constitution.

The judiciary has been flexing its cultural muscles for decades, imposing its own values upon the American people, supposedly in the name of the Constitution. There can be no doubt that traditional marriage is in the path of what Supreme Court Justice Antonin Scalia, in 1992, called the judiciary's ``social engineering bulldozer.''

That same year, the Supreme Court invented a constitutional right to define ``one's own concept of existence, of

meaning, of the universe, and of the mystery of human life.''

Four years later, the Court said resistance to making public policies more favorable to homosexuals ``seems inexplicable by anything but animus.''

Last year, the Court combined these ideas to take away from State legislatures the ability to prohibit certain kinds of sexual practices. The Lawrence v. Texas case in 2003: these are some quotes directly out of that case. Justice Antonin Scalia, who dissented in that case, said:

Today's opinion dismantles the structure of constitutional

law that has permitted a distinction to be made between

heterosexual and homosexual unions, insofar as formal

recognition in marriage is concerned . . .

If moral disapprobation of homosexual conduct is ``no

legitimate state interest'' for purposes of proscribing that

conduct. . . .what justification could there possibly be for

denying the benefits of marriage to homosexual couples

exercising ``[t]he liberty protected by the Constitution?''

I might add, also in the Lawrence case, Justice Kennedy argued that:

The present case . . . does not involve whether the

government must give formal recognition to any relationship

that homosexual persons seek to enter.

Justice Scalia understood, however, that

This case ``does not involve'' the issue of homosexual

marriage, only if one entertains the belief that principle

and logic have nothing to do with the decisions of this

Court.

Justice Scalia said the Lawrence decision:

``leaves on pretty shaky grounds state laws limiting

marriage to opposite-sex couples.''

If that is so, and he is right--and he certainly has been proven right so far--then the argument of the distinguished Senator from California really does not hold any water because the States are going to be overruled, 40 of them at least, and I believe all 50 in the end. If we do not do something about it, they are going to be overruled in their desire to keep traditional marriage alive.

Now, Evan Wolfson, the director of Freedom to Marry, said this:

But when [Scalia's] right, he's right. We stand today on

the threshold of winning the freedom to marry.

Finally, the Supreme Judicial Court of Massachusetts applied all of this by inventing a constitutional right to same-sex marriage. That was not a legislature. That was not the people speaking. In fact, it was not even a unanimous court speaking. It was a 4-to-3 decision by four of the most liberal State justices in the country versus three very liberal justices in the country. It was a hard-fought decision. It was hardly the will of the people being met.

It is almost ludicrous to come here and say the will of the people should be met here. If that is true, then we ought to give them that chance with a constitutional amendment which will be submitted to the will of the people out there. Everybody in America who can vote will have a right to vote for or against this constitutional amendment. We ought to at least give them that chance.

Well, as I say, the Supreme Judicial Court of Massachusetts applied all this by inventing a constitutional right to same-sex marriage. Step by step, by recasting these cultural questions in constitutional terms, the courts took them away from the American people and their elected representatives.

Now, that flies in the face of what we have heard from those on the other side of this issue: Let the States take care of this. Give me a break. Four liberal justices versus three liberal justices have said this is going to be applied to all of America, because it applies as law in Massachusetts, and under the full faith and credit clause that law must be recognized in every State in the Union.

Well, these were not a bunch of random, coincidental legal events. These falling dominoes were part of the very same strategy that today is targeting State and Federal laws protecting traditional marriage.

Last Friday, I outlined the five current fronts in the legal war to redefine marriage. There may be more on the way. Politically driven lawyers are nothing if not creative. This is why nearly all legal analysts and scholars, either grudgingly or enthusiastically, conclude that the ability of legislatures to make real decisions in this area may already be a thing of the past. In other words, the people's right--the people's right--to make real decisions in this area may be a thing of the past. Why not just let these four liberal justices against three liberal justices make this decision for everybody?

This is why a constitutional amendment to preserve traditional marriage is the only effective solution, and why this is not premature. It might have been premature if the Supreme Court's ``cultural bulldozer'' were still idling. It might have been premature if the Supreme Court had not embraced the insulting and false conclusion that traditional views on certain cultural questions are nothing but irrational animus. It might have been premature if the Supreme Court had not created a constitutional right to sexual autonomy. It might have been premature were there not already dozens of lawsuits challenging laws protecting both State and Federal laws protecting traditional marriage.

But these things have already happened, and more aggressive legal assaults are coming. The judiciary's ``cultural bulldozer'' is in gear, on the move, and has already done too much damage. If anything, we are behind the curve, not ahead of it.

Some call this election year politics. Well, I suppose any measure considered by a political institution can be called politics. Yes, this is an election year. This is merely a cliche substituting for an argument. Those who use it perhaps have no real argument, and so they use this cliche to imply that we would not be trying to defend traditional marriage if this were 2003 or 2005. Simply saying that demonstrates how absurd that argument is.

Supporters of traditional marriage, that is to say, the large majority of the American people--that is the people out there in the States who they are calling upon to make these decisions but are having it taken away from them by a four-liberal-justice to three-liberal- justice decision in Massachusetts--have not dictated the timetable here. The minority who want to redefine marriage have done that. They brought the lawsuits that took these issues from the American people.

Since the Supreme Judicial Court of Massachusetts had used the State constitution to redefine marriage, amending the State constitution is the only way to protect it. Yet the court gave the legislatures just 6 months to do what it knew in Massachusetts takes 3 years to do under their constitutional form of government. This issue is already out of the people's hands.

As Senator Smith said on this floor last week, words have meaning. Activists, with the help of judges, are seeking to change the meaning of the word ``marriage'' to further their political agenda. The proponents of the marriage amendment are saying: Stop. We want to retain the word ``marriage'' to its real meaning of a male and female union, and it is inescapable that amending the U.S. Constitution is the only way to accomplish that goal.

Think about it. I don't have any desire to discriminate against anybody, let alone homosexuals in our society or gay people. I know the distinguished Senator from Oregon feels exactly the way I do about it. I have been the author of the three AIDS bills along with Senator Kennedy. We fought those through here on this floor against what were overwhelming odds at the time and passed them overwhelmingly because of the arguments we made. It is no secret that along with Senators Smith, Feinstein, Kennedy, and others, I am the author of a hate crimes statute that I believe would do justice in our society while still preserving capital punishment. But it is a long way from where we have been.

There is no question that I do not believe in discriminating against gays. But like my friends on this side who have always argued, particularly my friend from Oregon, I draw the line, as do he and others, when it comes to traditional marriage. I believe it is the basic fabric of our country. Traditional marriage means children. It means raising children born to that marriage. I believe gay people ought to be able to do whatever they believe they should in the privacy of their own homes, but I don't think they should have the right to redefine traditional marriage.

We have had traditional marriage in this world for over 5,000 years. This is not some itty-bitty, inconsequential, off-the-subject debate. This is one of the most important debates in history.

Because if we don't stand up for traditional marriage at a time when a lot of things seem to be falling apart, we are going to reap the whirlwind.

This is an age where any child can bring up pornography on the Internet. At one time if you clicked on Harry Potter, you would get pornography geared to those children. We all know that. Click on almost any children's book or subject or title or person mentioned in a children's book and you get pornography for children. I don't need to go through all the other ills of our society to let everybody know that we are living in a world where there is a lot of filth, a lot of degradation. We have to stand up against it. We have to protect the traditions that do make sense in our society, and traditional marriage is at the top of the list.

We might differ on some other matters, but it is difficult for me to see how anybody could differ on traditional marriage, even though I know my gay friends do. Does that justify the laws in some, if not all, States that prohibit a gay partner from being able to go into an intensive care unit and care for his or her gay partner? That doesn't justify that. I think that is terrible, that our laws do not take care of that. Does it mean a gay person can't benefit from the laws of estates and trusts? I believe under current laws they can, but if they can't, we ought to correct those laws. Does it mean they can't buy insurance for their gay partner? We ought to make it possible that they can. You could go through various things where there are inequities, but we don't solve those inequities by changing a 5,000-plus-year definition of traditional marriage. We should solve those problems, and I am willing to work on these problems with my liberal counterparts on the other side and conservatives as well, I am willing to work and try to resolve the problems. But I simply draw the line when it comes to traditional marriage.

Gay people have a right to be free, to not be discriminated against. They have a right to live in their relationships within the privacy of their own homes, just like others who have different approaches toward life. But that doesn't give them or anybody else the right to define traditional marriage.

I come from a culture where at one time polygamy was a religious belief and was practiced by a small percentage of people in my faith. My great-grandfather was one of the great colonists, one of the great pioneers of the West. Jeremiah Hatch had 3 wives and 30 children. Those were the days when they lived this principle because they believed it to be a spiritual principle. They believed it was important to bring as many children into the world as they could, among other things. They believed it was a spiritual principle of the faith. But when Reynolds v. Simms came down, the Supreme Court case not allowing plural marriage, basically my faith did away with plural marriage. I have to say no one would argue that it should ever come back. Just to make the point, I would never argue that it should come back. I have been offended by some people indicating that there might be some argument for it.

What is important here is that all we are asking in this amendment is, sentence one:

Marriage in the United States shall consist only of the

union of a man and a woman.

That is 5,000 years of practice throughout the world.

And the second sentence says:

Neither this Constitution, nor the constitution of any

State, shall be construed to require that marriage or the

legal incidents thereof be conferred upon any union other

than the union of a man and a woman.

That does not say you cannot have civil unions because if a State determines that is what they should do, then the State can determine that. If you want to leave it up to the States, this is the way to do it. Not only would 38 States have to ratify this amendment--and I believe all 50 would--but they would also have the right, if they so choose, to resolve these problems I have been mentioning here that are problems for gay people that ought to be resolved.

The important thing is that if we are going to leave it up to the people, this is the way to do it. It is the only way to do it. Otherwise we are leaving it up to four liberal justices in Massachusetts versus three liberal justices in Massachusetts who didn't agree with them and who basically opted for traditional marriage or at least who seemed to opt for traditional marriage.

There is a vast movement beginning in America in every State legislature to amend their constitutions to prohibit or should I say to reaffirm the respective State's belief in traditional marriage. Assuming that most States will do this--and I believe most will--would those State constitutions be upheld under the Lawrence case or under any future cases? There is a real question whether that may be the case.

The best way to allow the people to decide this is to have a constitutional amendment so that they really have a say in what goes on. I can live with whatever the people decide to do. But doing it this way, by allowing a 4-to-3 vote in Massachusetts to bind every State in the Union to Massachusetts marriages through the full faith and credit clause, seems to me to be something that flies in the face of 5,000 years of traditional marriage and family life.

I notice the distinguished Senator from Kentucky here.

I yield the floor.

Mr. President, I suggest the absence of a quorum and ask that the time be equally divided.

Mr. President, I suggest the absence of a quorum and ask that the time be divided equally.

Madam President, let me add to the Senator's remarks. I listened to my dear friend, my partner, Gordon Smith, yesterday on the Senate floor, and I was very impressed, having seen what he and his family have gone through and what others have gone through. It meant so much to have him lead the fight for this particular bill.

I certainly appreciated the remarks of the distinguished Senator from North Dakota. There is no question, this is a serious problem for young people throughout our country--again, especially for those who are Native Americans. I believe the bill, sponsored by my dear friend from Oregon, and of course a number of the rest of us, will go a long way toward helping to resolve and alleviate some of these problems.

I compliment all concerned for their sensitivity and their desire to do what we can to alleviate these problems and to help our children throughout our country.

My home state of Utah has one of the highest suicide rates in the country, in fact, suicide rates in Utah for those 15 to 19 years of age have increased close to 150 percent over the last 20 years. In response to these disturbing statistics, I authored legislation in 2000 to direct the Secretary of Health and Human Services to provide grants to states and other entities in order to create programs to reduce suicide deaths among children and adolescents. This legislation was included in the Children's Health Act of 2000 which was signed into law by the President.

Again, I am proud to be an original cosponsor of the Garrett Lee Smith Memorial Act and I credit its rapid passage through the Senate last night to one person--my dear friend, Senator Gordon Smith.

Madam President, I have been around here for 28 years. I have seen a lot of very important issues. I have seen a lot of phony arguments through the years. One of the phoniest arguments I have seen is, Why are you moving toward this constitutional amendment to preserve the traditional definition of marriage? We have so many other more important things to do. Why, we have the economy, we have the war--we can name thousands of things that are more important to some of the opponents of this measure than this particular measure. But I say I don't know of anything in our society or in our lives or in our country or in the world that is more important than preserving our traditional family definition.

I don't know of anything that is more important to children. I don't know of anything that is more important to morality. I don't know of anything that is more important to education. I don't know of anything that is more important to strengthen our country. I don't know of anything that is more important to the overall well-being of our citizens than the preservation of the traditional marriage definition that has been the rule for 5,000-plus years in this world; that is, marriage should be between a man and a woman.

Everybody in this body knows I have led the fight in three AIDS bills. I have been the primary sponsor of those bills along with Senator Kennedy. Everybody knows that I have fought hard against hate crimes. One of the principal bills that lies before us is the Hatch- Smith-Kennedy-Feinstein bill against hate crimes, part of which are hate crimes against gay people. I do not believe in discrimination of any kind, and I do not believe that what some people have done to gay people in our society is relevant or right.

Some of it has been purely prejudicial. I don't believe that type of thinking should see the light of day.

But like my colleague from Oregon and others, I draw the line when it comes to traditional marriage and the definition of traditional marriage. So I rise in support of an amendment to our Constitution that would maintain the institution of marriage between a man and a woman, an institutional arrangement that is to this date supported by all of our State legislatures, every State legislature in the country. The bedrock of American success is the family, and it is traditional marriage that undergirds the American family.

The disintegration of the family in this country correlates to the many serious social problems, including crime and poverty. We are seeing soaring divorce rates. We are seeing soaring out-of-wedlock birth rates that have resulted in far too many fatherless families. Weakening the legal status of marriage at this point will only exacerbate these problems, and we simply must act to strengthen the family. It is one of the most important things that we can consider and that we should do.

To me, the question comes down to whether we amend the Constitution or we let the Supreme Court do it for us. I know which is the more democratic option, and that is for us, as elected officials, to amend the Constitution. Questions that are as fundamental as the family should simply not be left to the courts to decide. If we permit ourselves to be ruled by judges, we further erode the citizenly responsibility that is central to our republican form of government.

Many in this body, in the ivory tower, often fret that Americans do not take politics seriously enough. Perhaps that is because we, through our inaction, routinely suggest to the electorate that the most important questions facing us as a political community should be decided by a handful of Harvard-educated lawyers, rather than by the people themselves. A free citizenry should not accept such a goal, and should not accept such thin gruel.

Our hope for this amendment is that it will maintain the traditional right of American people to set marriage policy for themselves.

We do not take this proposal lightly. The Constitution has functioned to secure and extend the rights of citizens in this Nation, and it serves as a beacon of hope for the world. Aside from the Bill of Rights, it has rarely been amended, but when it is, we have done so to expand the rights of democratic self-government and to resecure the Constitution's original meaning.

That is precisely what we are intending here. Marriage policy has traditionally been set by the States. The States have made their opinion on this subject clear. They have overwhelmingly acted in recent years to preserve traditional marriage.

Still, absent an amendment, we should have no faith that the courts will uphold these State decisions. Believe me, there are other ways we would rather spend our time. We did not choose this schedule--the courts did. But as public representatives, bound by the oath to defend the Constitution, we will not hide from our obligations.

Our case is simple. Last fall, in its Goodridge v. Department of Public

Health decision, the Supreme Judicial Court of Massachusetts declared same-sex marriage to be the policy of the Commonwealth of Massachusetts. Today, same-sex marriage couples live in 46 States, and activists are implementing a well-funded, multifaceted, and highly coordinated legal assault on traditional marriage.

Look at this. Not one legislature has voted to recognize same-sex unions. But in 1996, States with same-sex marriage couples, zero; in 2004, States with same-sex marriage couples, 46. That is what has happened as a result of this particular decision by the Massachusetts Supreme Judicial Court.

The inescapable conclusion is that absent an amendment to the Constitution, same-sex marriage is coming whether you like it or not.

Regardless of what the people think, regardless of what elected representatives think, it is going to be imposed on America because of one 4-to-3 version of an activist Massachusetts Supreme Court.

The opponents of this amendment urge us to remain patient. Our actions are premature, they tell us. Those opposed to protecting traditional marriage keep moving the goal line, and to ignore this strategy is to guarantee defeat.

Marriage first became a national issue in 1996. Then, as now, a State court threatened to impose same-sex marriage on citizens of their own State, and in so doing they jeopardized the traditional marriage laws of the entire Nation.

Given this scenario, it would have been flatly irresponsible for us not to act. So when faced with the potential of the Supreme Court of Hawaii dictating marriage policy for all 50 States, we passed the Defense of Marriage Act, or DOMA.

Then, as now, our opponents accused us of playing election year politics--the same phony argument they are accusing us of today, or in this particular matter. The opposition insisted there was no need for DOMA, the Defense of Marriage Act. In fact, Senator John Kerry argued, and others with him, that it was not necessary since no State has adopted same-sex marriage. That was their argument. Eight years later, a bare majority of John Kerry's own State's supreme court has brought same-sex marriage to the State and to the citizens of Massachusetts.

What is his position now? Sounding much as he did 8 years ago, he said, and I quote:

I oppose this election-year effort to amend the

Constitution in an area that each State can adequately

address, and I will vote against such an amendment if it

comes to the Senate floor.

Keep in mind, the only thing that would permit each State to decide this issue on its own is DOMA, the Defense of Marriage Act. What was Senator Kerry's opinion on DOMA? I don't mean to just single him out; there are others on the other side who have taken the same position. What was their opinion on DOMA? Senator Kerry called it ``fundamentally unconstitutional.'' In fact, that was the opinion of much of the Democratic Party and our academic legal establishment at the time.

Let me refer you to this chart. But isn't DOMA unconstitutional? Senator Kerry said: You don't have to worry about it because we have the Defense of Marriage Act.

This is what he said on September 3, 1996:

DOMA does violence to the spirit and letter of the

Constitution.

Senator Kennedy, our other distinguished Senator from Massachusetts, in his remarks on the Senate floor on September 10, 1996, said:

Scholarly opinion is clear. DOMA is plainly

unconstitutional.

Professor Laurence Tribe, Harvard Law School professor, in a letter submitted for the Record in Senate proceedings, said on June 6, 1996:

My conclusion is unequivocal. Congress possess no power

under any provision of the Constitution to legislate as it

does in DOMA any such categorical exemption from the Full

Faith and Credit Clause of article IV.

The ACLU, in a background briefing in February of 1996, says:

DOMA is bad constitutional law . . . an unmistakable

violation of the Constitution.

Think about that.

So let me get this straight. We do not need DOMA, was the argument because no State has actually pursued same-sex marriage.

That is what Senator Kerry said against DOMA when he argued against it back then. But now that Massachusetts has, we do not need an amendment because we fortunately have DOMA. How convenient. Except for the fact they are all arguing that DOMA is unconstitutional. It just doesn't seem to fit.

I have seen these ads on Senator Kerry flip-flopping. We all know that around here. That is what he does. But this is the grand flip- flop, one of the grandest of all times. A person's head starts to spin just trying to undo this logical mess.

But in the end, that is the point. They hope to confuse and to obfuscate and cast aspersions, and, by so doing, maybe succeed in lulling citizens into apathy on this subject.

Fortunately, this issue is actually rather simple for those who approach it with any sincerity. There are, in fact, only two questions that Senators must answer before voting on this amendment; that is, if the filibuster will be ended and we are able to proceed to the constitutional amendment and debate it.

The first thing is whether they support traditional marriage. Bulletproof majorities in this body do. No question about that. The American people do, as well.

The second is whether the majority's desire to protect traditional marriage can be guaranteed without a constitutional amendment.

The assertion this was a State issue, that the States can protect marriage, neglects the likelihood that the courts will overturn the well-considered opinion of citizens in every State. Skeptics and opponents of this constitutional amendment claim, sometimes relying on traditional Republican and conservative principles of federalism and limited government, that this is not the time nor the place for the National Government to act.

We must be clear. The States have already acted. Since marriage first became an issue in 1996, over 40 States--look at this--over 40 States have acted explicitly to shore up their traditional marriage laws--40 States. What a national consensus? States where legislatures have approved same-sex marriage, zero; not one State legislature, that is. The people's representatives, the ones who have to stand for reelection, not one State. States where legislators and citizens have recently acted to protect traditional marriage, 40 States.

But all of this legislation has been in danger by the Massachusetts court's actions this past fall and by recent decisions by the U.S. Supreme Court. The courts, in an elite legal culture out of touch with average Americans, have made this a national issue. It can no longer be adequately resolved by the States. More and more coordinated lawsuits are being filed every day, and the question of same-sex marriage will terminate in Federal courts at which point same-sex marriage will become the law of the land, in spite of the desires of the elected representatives throughout at least 40 States, and I believe other States would follow suit in time to preserve traditional marriage.

Let me say this slowly so it can sink in. Absent a constitutional amendment that protects the rights of the States to maintain their traditional understanding of marriage, the Supreme Court will decide this issue for them.

The Massachusetts Supreme Judicial Court commanded, in a fit of hubris, that the State must extend marriage to same-sex couples. Never mind that the Massachusetts Constitution created by the hand of John Adams himself clearly did not contemplate this conclusion. Never mind there is an obvious national basis for the States' traditional marriage laws and never mind the people in the Bay State were adamantly opposed to this judicial usurpation of policy development best left to legislative judgment. No, they went right ahead and issued a decision that certainly made them the toast of the town on the cocktail party and academic lecture circuit, but they put their personal self- satisfaction ahead of their judicial responsibilities. By doing so, they knowingly threatened the marriage laws in every State in our country.

The people of Massachusetts acted quickly to amend their constitution

and overturn this egregious abuse of judicial authority. The problem is that amendment will not be ratified for at least 2 years--a fact, by the way, of which the Massachusetts Supreme Court was keenly aware. In the meantime, people will be married in Massachusetts and they will move to other States. What will become of these same-sex marriages? Will they be recognized? Will they be dissolved? Can these people get divorces in other States? Who will have custody of the children in the event of disillusion? Already, as a result of the lawless issuing of marriage licenses to same-sex couples by the mayor of San Francisco, same-sex marriage couples live in 46 States now. Together, these actions have stirred up a hornet's nest of litigation.

When allowed to choose, legislatures protect marriage rather than dismantle it; therefore, advocates of same-sex marriage resort to strategies involving the executive or judicial branches. In States such as California, Oregon, New York, and New Mexico, rogue local officials have simply defied their own State marriage laws and married thousands of same-sex couples. While saying that New York law does not allow same-sex marriages, State attorney general Elliot Spitzer will nonetheless recognize such marriages performed in other States. That is his opinion. These actions have an impact on the legal landscape for sure, but in most cases advocates turn to the courts to impose their preferred policies on fellow citizens. Their legal war against traditional marriage has at least five fronts.

Remember article IV of the Constitution, full faith and credit clause. Most authorities believe the Massachusetts Supreme Court will be binding on every other State in the Union, not that they will have to allow same-sex marriages themselves in defiance of traditional marriage beliefs, but they will have to recognize the marriages that are performed in Massachusetts that come to their States under the full faith and credit clause. Most constitutional authorities agree with that, and it is believed that the U.S. Supreme Court will uphold that and thus rule DOMA, or the Defense of Marriage Act, unconstitutional.

There are five legal fronts of attack on the Defense of Marriage Act or traditional marriage. First, as in Massachusetts, gay citizens who wish to marry allege that State laws protecting traditional marriage are violations of their own State constitutions. So far, there are 11 States facing these challenges to their marriage laws.

This week, the ACLU filed suit in Maryland arguing that the State's failure to recognize same-sex unions violates the State's constitution.

In California, even though more than 60 percent of the voters recently approved a statewide ballot initiative to maintain traditional marriage, the California Supreme Court is now considering the constitutionality of that democratic action.

In Nebraska, the ACLU has actually challenged a duly passed State constitutional amendment that defines marriage as being between a man and a woman. Similar challenges are pending in Florida, Indiana, Washington, and West Virginia, all of which have passed laws to secure traditional marriage just in the last 10 years as a result of this focused consideration of the subject by citizens of those States.

The legislatures in Delaware, Illinois, Michigan, North Carolina, and Vermont are considering actual amendments to protect traditional marriage. Montana, North Dakota, Ohio, and Oregon have signature- gathering campaigns underway. Amendments are already on the ballot in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Missouri, Oklahoma, and my own home State of Utah.

One would expect and hope that given this public concentration on the subject, a proper respect would be given to a popular resolution of this issue. We can be sure, though, that the legal advocates of same- sex marriage will not display any such reservations.

The second case against traditional marriage will emerge once two citizens legally married in Massachusetts move to Ohio, Louisiana, or some other State and seek to have their marriage recognized. It is simply implausible to deny that this scenario will unfold. Already a suit has been filed in Washington State requesting that Washington recognize same-sex marriages performed in Oregon under a now halted order issued by a rogue county chairman even though Washington law expressly precludes such unions.

The third and fourth cases also specifically involve challenges to the Defense of Marriage Act now passed by 40 States and I believe will ultimately be passed by all 50 States.

One of the standard crutches of those opposed to an amendment is that DOMA, the Defensive of Marriage Act, remains the law of the land. In the hearing before the Judiciary Committee several weeks ago, Senator Durbin said that DOMA has ``never been challenged in court.'' This is simply untrue. DOMA has been challenged for violating the U.S. Constitution. It is being challenged right now.

The Defense of Marriage Act did two things. For the purposes of Federal benefits, such as Social Security, it reserved the definition of marriage to traditional unions, and, most importantly, it gave a blanket exception to the full faith and credit laws for marriage policy.

As it is now, the Constitution requires that, barring a rational public policy to the contrary, my marriage in Utah must be recognized in Virginia. DOMA ensures that States would not be compelled under the Constitution to recognize same-sex marriages performed in other States. The first prong of DOMA is being challenged in a Federal court. There is no doubt that a suit will eventually be filed challenging the constitutionality of DOMA's exception to the full faith and credit clause.

Fifth, State laws protecting traditional marriage will be challenged as violating the Federal Constitution. That the U.S. Constitution protects no such right will hardly be an obstacle to these suits. The death penalty is explicitly provided for in the fifth amendment, but that does not stop liberal interest groups from attempting to undo this through judicial action. They cannot get these matters through the elected representatives, so they always try to get these activist court judges to do their bidding for them and to enact legislation from the bench that they could never get through the elected representatives of the people. This is a perfect illustration.

The first amendment was obviously intended to guarantee political speech, but that does not stop the ACLU from getting nude dancing declared a constitutional right. Nothing in the Constitution guarantees a right to an abortion, but, through a creative analysis of the text, the Court was persuaded to create a right to privacy extended in recent years to include ``the right to define one's own concept of existence of the universe, and of the mystery of human life.''

These cases will inevitably wind up in Federal court. We cannot wash our hands of the implications of this issue's likely judicial resolution. As a Senator, my oath obligated me to protect the Constitution. That includes protecting it from corruption at the hands of the judiciary. These corruptions have become commonplace, and they are extremely difficult to undo once secured.

We have tried in the past, when constitutional meaning was violated in the moment-of-silence cases, in abortion rights cases, in religious liberty cases, in flag burning cases--all judicial activists' decisions--we attempted to undo these decisions and to restore the original Constitution. We have never been successful in succeeding along those lines. If this becomes the law of the land by judicial fiat of 4-to-3 verdict in the Massachusetts Supreme Court and because the full faith and credit clause will impose it on every other State in the Union, then we will have had the judges legislate for all of America against every State's law that we now must do away with traditional marriage or at least allow this new form of marriage.

Now, there is a constitutional responsibility, I would suggest to my colleagues in the Senate. In fact, once these decisions are in place, the very people who tell us to wait for the courts to decide abdicate their stewardship of the Constitution. It is a phony argument to say wait until the courts decide. I think it is all too clear that if we rely on that, we are going to have the courts tell Americans what

they must believe on this matter, and that is in contradiction to all of the elected representatives' rights to determine these types of issues.

As an example, consider the response of some Democratic lawmakers to the Supreme Court's rulings on abortion. In a recent letter to Roman Catholic Cardinal Theodore McCarrick of Washington, DC, 48 Catholic Members of the House of Representatives explained that:

[W]e live in a nation of laws and the Supreme Court has

declared that our Constitution provides women with a right to

an abortion. Members who vote for legislation consistent with

that mandate are not acting contrary to our positions as

faithful members of the Catholic Church.

Now, regardless of the beliefs of the Catholic Church, or even the merits of the arguments for or against abortion, this is a monumentally irresponsible attitude. These legislators, charged with protecting the Constitution, argue that they must vote against legislation that curtails abortion because the Supreme Court obligates them to. In other words, the Constitution, apparently, is what the Supreme Court says it is to these people.

Well, I think the Supreme Court has gotten it wrong on a number of occasions. But on this particular issue, when the Supreme Court rules that DOMA is unconstitutional, that will be one of the most monumentally wrongful decisions in the history of this country.

Now, with all due respect, these arguments that these Members of the House raised on the issue of abortion are absurd. Abraham Lincoln, the founder of my political party, understood this. When Chief Justice Roger Taney handed down his infamous Dred Scott decision, Lincoln did not defer to the Court. He did not accept its decision as a proper interpretation of the Constitution. He rejected it root and branch, and explained that:

[T]he candid citizen must confess that if the policy of the

government upon vital questions affecting the whole people is

to be irrevocably fixed by decisions of the Supreme Court . .

. the people will have ceased to be their own rulers.

That was Lincoln speaking, and we ought to follow that type of logic and that type of reasoning, that type of truth. We cannot just sit by and let the courts rule our country. That is not their job. Their job is to interpret the laws that we make as people who have to stand for reelection. We passed a law that is now approved by 40 States, and I believe will be approved by the other 10 States given time.

Now, this popular constitutional responsibility is a bipartisan affair. When Franklin Roosevelt's New Deal was repeatedly stymied by the Supreme Court, he did not throw up his hands and explain that the Depression would have to continue because the Supreme Court did not allow him to regulate the economy. Of course, he did not. Rather, he continued to push his policies and explained to the American people why the Court's interpretation of the Constitution was wrong.

The Members of this body have a sacred trust as constitutional officials, and we must take seriously the results of our inaction. If we fail to pass an amendment, and we delegate our authority over this matter to the Supreme Court of the United States, the decision will come as no surprise. On this point, the Justices have made themselves amply clear. There is no reason to believe that State marriage laws protecting traditional marriage will be allowed to stand.

In the Lawrence decision handed down just last year, the Supreme Court announced its intentions by effectively overturning Bowers v. Hardwick. Bowers was hardly an antique. It was decided only in 1986, and it basically put the brakes on 20 years of judicially created privacy rights. That decision concluded that the States remained able to regulate certain sexual practices in order to protect the health, safety, and morals within its political community.

But in Lawrence the court reversed course. There, the Court concluded that:

Liberty presumes an autonomy of self that includes freedom

of thought, belief, expression, and certain intimate conduct,

and therefore, our laws and tradition afford constitutional

protection to personal decisions relating to marriage,

procreation, contraception, family relationships, child

rearing, and education.

Now, according to the Court, in Lawrence, these are fundamental rights, and the States must, therefore, advance a compelling reason for any legislation that denies them. Unfortunately, in Romer v. Evans, the Court has previously held that any such legislation could only be based on an ``irrational animus'' toward homosexuals.

So what, then, of same-sex marriage, which denies to homosexuals the privilege of marrying? In his dissent in Lawrence, Justice Scalia understood that:

State laws against . . . same-sex marriage . . . are

likewise sustainable only in light of Bowers' validation of

laws based on moral choices. Every single one of these laws

is called into question by today's decision; the Court makes

no effort to cabin the scope of its decision to exclude them

from its holding.

Those who favored the decision at the time said it did no such thing. Privately, however, they understood exactly what it meant. And the judges in the Goodridge case were quick studies. In the decision to rewrite the Massachusetts Constitution to compel same-sex marriage, the Goodridge court relied heavily on these rulings. Their conclusions that marriage is a fundamental right and that the decision to restrict that right is patently irrational were taken straight out of the U.S. Supreme Court playbook. Goodridge has shown us the way. DOMA, the Defense of Marriage Act, will not stand, and absent DOMA, the States will have to defend their marriage laws on their own. Their success, of course, is in serious doubt.

I do not subscribe to the conclusions of the courts. There is an obviously rational basis for legislation that protects traditional marriage. Only a discriminatory animus against people who hold any religious beliefs at all could lead someone to conclude otherwise. For a simple and compelling reason, traditional marriage has been a civilizational anchor for thousands of years. Society has an interest in the future generations created by men and women.

Decoupling procreation from marriage in order to make some people feel more accepted denies the very purpose of marriage itself. Marriages between men and women are the essential institutions to which future generations are produced and reared. Political communities are only as solid as their foundation, and these families and homes, the first schoolyards of citizenship, are essential for the future of republican government.

The fact that so many in the Democratic Party are openly opposed to same-sex marriage should undercut the conclusion that the desire to maintain traditional marriage is grounded simply in rank bigotry.

Let me refer to this chart again. These are leading Democrats who have spoken out on same-sex marriage. The first one is Senator Kerry:

I believe marriage is between a man and a woman. I oppose

gay marriage and disagree with the Massachusetts Court's

decision.

I don't think it could be any more clear.

Senator Daschle:

The word ``marriage'' means only a legal union between one

man and one woman as a husband and wife.

How about Representative Richard Gephardt:

I do not support gay marriage.

Or how about Governor Bill Richardson of New Mexico:

I do believe that marriage is between a man and woman. So I

oppose same-sex marriage.

Or how about former President Bill Clinton:

I have long opposed governmental recognition of same-gender

marriages.

Or how about former Vice President Al Gore:

I favor protecting the institution of marriage as it has

been understood between a man and a woman.

These are leading Democrats, who I personally respect in many ways, who have come out against this very dramatic change in traditional marriage that is occurring in our society today.

I have to say that I think John Kerry was right in making that statement at the time. I think Tom Daschle was right. I think Richard Gephardt was right. I think Governor Bill Richardson was right. President Bill Clinton was right, and Vice President Al Gore was right when he said that. These Democrats are merely responding to a certain common sense articulated by the American people, and that

common sense has expressed itself in legislative actions in nearly every State.

The Supreme Court of the United States, in order to defend itself against the accusation that it is determining constitutional meaning from their morning reading of the New York Times, has taken to defending only those rights supported by a developing national consensus. In this case, there is a developing national consensus on the issue of same-sex marriage, but it is developing in the other direction.

State after State has acted to protect this vital institution of traditional marriage. Still it would be a fool's wager to rely on the Supreme Court to affirm this consensus of all the people out there. When California acted through the superdemocratic process of a Statewide referendum to protect traditional marriage, that did not stop the liberal mayor of San Francisco from defying this law and instituting his own preferred policy preference instead. When it comes to a liberal agenda at odds with the beliefs of average Americans, legal impediments or even simple respect for these popular decisions do not long stand in the way.

It is important to mention another effect of abandoning our definition of marriage. We have vast numbers of institutions and individuals in our society who will be stigmatized and marginalized by courts trying to enforce a new moral norm. A group of notable legal scholars in Massachusetts, including Mary Ann Glendon, warned about the danger to religious institutions in this country in a recent legal opinion.

They said:

Precedent from our own history and that of other nations

suggests that religious institutions could even be at risk of

losing tax exempt status, academic accreditation, and media

licenses, and could face charges of violating human rights

codes or hate speech laws.

Is this the road we want to go down? Gays and lesbians have a right to live as they choose. I would be the first to say that. But I am sorry, they do not have the right to define marriage and to redefine it away from the concepts of traditional marriage that have been in existence for over 5,000 years. I have been a leader in advocating hate crimes legislation against gays and lesbians. I know prejudice remains against gay and lesbian citizens. I reject each and every substantiation of it. But this amendment is not about discrimination. It is not about prejudice. It is about safeguarding the best environment for our children.

African-American and Hispanic leaders, Catholics and Jews, Democrats and Republicans, people from every State, religion, and every walk of life support traditional marriage as the ideal for this very same reason. I do not doubt alternative families can lovingly raise children, but decades of study show children do best when raised by a father and a mother.

My own faith, which has been badly maligned through the years--and I have personally been badly maligned, even by some who should be allies--only yesterday or within this week had this to say. It was issued on July 7:

The First Presidency of the Church of Jesus Christ of

Latter-day Saints issued the follow statement today. This is

a statement of principle in anticipation of the expected

debate over same gender marriage. It is not an endorsement of

any specific amendment.

The Church of Jesus Christ of Latter-day Saints favors a

constitutional amendment preserving marriage as the lawful

union of a man and a woman.

I have no doubt my faith and so many others would prefer and recognize the need of a constitutional amendment to resolve this problem. It is the right way to do it. For us to ignore it means we are abandoning our responsibilities. Given the acknowledged importance of this institution, popular reservations about undoing it should be given the utmost importance. Same-sex marriage is an unproven experiment, though other nations have had some experience with it.

The Netherlands has recognized same-sex unions since 2001 and registered partnerships since 1998. Since those reforms began, there has been a marked decline in marriage culture. Just yesterday, in a letter published in a Dutch newspaper, a group of respected academics from the fields of social science, philosophy and law made a modest assertion. The decision to recognize same-sex marriage depended on the creation of a social and legal separation between the ideas of marriage and parenting. And in that time, there has been, in their words, a spectacular rise in the number of illegitimate births. These scholars do not argue that this rise is solely attributable to the decision to recognize same-sex partnerships. But the correlation is undeniable. They conclude that further research is needed to establish the relative importance of all the factors.

Precisely! The jury is out on what the effects on children and society will be and only legislatures are institutionally-equipped to make these decisions. If nothing else, given the uncertainty of a radical change in a fundamental institution like marriage, popular representatives should be given deference on this issue. However, recent actions by courts prove that no such deference is being given.

This is why we need an amendment. Without an amendment to the Constitution, same-sex marriage will be imposed by judges on an American people who would not choose this institution for themselves.

Here is the language of the amendment. It contains two simple sentences:

Marriage in the United States shall consist only of the

union of a man and a woman.

The second sentence:

Neither this Constitution, nor the constitution of any

State, shall be construed to require that marriage or the

legal incidents thereof be conferred upon any union other

than the union of a man and a woman.

The amendment does nothing more than preserve perhaps the most fundamental relationship in society. The amendment does not violate the principles of Federalism and limited government.

Among other things the Constitution guaranteed to the people a right to govern themselves; in most instances, through their State governments. The Constitution protected traditional State prerogatives over subjects such as marriage and family policy. And should those be in danger, the Constitution guaranteed to the people a right to resecure these prerogatives through the amendment process. This is precisely the situation we face here.

The States have acted on this issue time and time again. They have rejected same-sex marriage. Yet we face legal advocates and a judicial system that care little for these judgments and that are ready and willing to substitute their own judgments for the common sense of the American citizenry.

In the end, the only argument against this amendment is that the Supreme Court is the sole institution that determines the meaning of our Constitution. I reject that conclusion. It grossly misstates the history of this Nation. The Alien and Sedition Acts were repealed through legislative actions, not through the courts.

The Civil War amendments that guaranteed citizenship and the right to vote to black citizens came through Congress and the state legislatures. The New Deal protected Americans in a time of need. The 1964 Civil Rights Act promoted the rights of racial minorities.

President Ronald Reagan readjusted the New Deal settlement, protecting the rights of small business owners and encouraging property ownership and innovation. And in recent years this body has acted to protect the rights of female victims of violence, the victims of hate crimes, and the rights of disabled citizens.

The popular branches of Government, not the courts, are the primary guarantors of our rights. As Senators, we are obligated to interpret the Constitution, and in this case we are not denying rights to same- sex couples, but protecting and extending the right of citizens to govern themselves and to determine marriage policy on their own, and to preserve traditional marriage.

To delay action on the marriage amendment now is like agreeing to repair a cracked dam only after it has burst and forever changed the landscape. We know what the legal situation is on this issue and we know what we have to do to repair it. A Constitutional amendment is the only viable alternative to protect this most foundational relationship in society. We must act, and we must act now.

We need to send a message to our children about marriage and traditional life and values. The American

people must have a voice. The people, through their elected representatives--not judges--should decide the future of marriage.

Montana, Louisiana, West Virginia, Colorado, Washington, Maine, North Dakota, Ohio, New Hampshire, Nebraska, South Carolina, Arkansas, Alaska, Pennsylvania.

All of these states and many others have made independent determinations to protect same-sex marriage. Without an amendment to the Constitution, all that work will be for naught. They have made those independent determinations to protect traditional marriage, not same-sex marriage. I respectfully ask my colleagues to do the right thing here and to guarantee that the right to self-government on important issues such as this remains with the people rather than in the courts.

This is an important issue. Anybody who argues this issue isn't as important as anything that can possibly come before this body fails to recognize that traditional marriage and the rights of families and children are the most important elements of our societal function and we need to protect them. We need to do it now and not wait until 2 or 3 years from now when all this becomes mush and nothing will be able to be done, such as on other bills that have occurred through the years.

What is the parliamentary situation?

Mr. President, I would like to take a moment to address a few remarks made by my colleagues on the other side of the aisle during yesterday's debate on the class action bill. First, they repeatedly accused the leader of jeopardizing the chances of getting this bill passed by filling in the amendment tree. Give me a break. That is the phoniest argument I have ever heard. The fact is, they are trying to kill this bill, and they are probably going to be effective in doing so.

I hate to give up--and I haven't given up yet--but that is what is happening. I have been through it so many times around here that I know when there is a real desire to kill a bill. The way you do it is with nongermane amendments that are called killer amendments or poison pills, because they are political amendments one side or the other does not want. The leader filled the tree because he wanted to protect the bill from extraneous amendments that would eliminate any chances of this measure becoming law. Anybody who argues otherwise is being deceptive.

Everyone here knows the class action bill was an extremely attractive vehicle for extraneous amendments, especially those amendments that were sure to be offered for the sole purpose of scoring political points during an election year. But what my Democratic colleagues conveniently overlook is this bill will find itself in the recycle bin if it is saddled with a host of irrelevant amendments. While this is certainly a win/win situation for those on the other side of the aisle who oppose this bill, apparently including some of the Democratic leadership, I find it a truly puzzling outcome for those who say they support class action reform. Not only does a loaded bill risk peeling away Senate votes from the underlying class action measure, it will, in all certainty, undergo changes when it goes through the House. And what happens then? Do we have a conference to resolve our differences? I think the answer is a resounding no. I don't think the other side is going to permit this because this bill flies in the face of the demands of one of their greatest hard money constituent givers, and that is the trial lawyers of America.

We all know there is little time left in this Congress to go through the motion of doing a conference. I think the chances of getting a conference done in this election year with two conventions and with all the problems we have to address. The appointment of conferees is further cast into doubt by virtue of the minority leader's threat earlier in the year to the appointment of conferees for the rest of the year. So if you add these poison amendments to this bill, these extraneous amendments that have nothing to do with the bill, you are basically killing the bill. Everybody knows that. The majority leader had no choice other than to do what he did.

I certainly did not hear any assurances from the minority leader yesterday on whether he would consent to the appointment of conferees to this bill. As such, I am led to believe his position remains unchanged. But even if he did consent, I don't think there would be enough time to do a conference. We have 62 people who said they would support this bill. That means all 62 should vote for cloture so we can actually pass this bill. But unfortunately, we have some who agreed they would vote for cloture--that was the whole reason for the agreement last November--and are now changing their minds and saying, well, this is something I can't support because we want our colleagues to have their right to put poison pills on this bill.

(Mr. TALENT assumed the Chair.)

Well, they cannot have it both ways. Let me be clear. It is because of the potential feeding frenzy that the leader moved to safeguard the bill from an open season on nongermane, nonrelevant, extraneous amendments. He did it to advance the ball on this legislation so it can be considered without the same initiatives we saw with other measures that were considered by the Senate this year. He did it with the hope of reaching a time agreement on amendments. He was not being unreasonable. He even allowed one nongermane amendment the Democrats have tried to get an up or down vote on all year, which members on this side feel is a terrible amendment. But probably it would pass, who knows. At least some think it would probably pass. I think there needs to be a substitute amendment to it that would probably pass.

I want to remind my Democratic colleagues the majority leader made three extremely generous offers regarding the consideration of germane and nongermane amendments.

First, he asked unanimous consent that amendments be limited to five related amendments to be offered by each side. So nobody would be foreclosed from offering the amendments they might think are important. When the minority leader objected to the offer, he expanded the request to include 10 related amendments on each side. I don't know how he could have been more fair. When the minority leader rejected this even more generous counterproposal, the majority

leader yet again expanded the agreement to include an unlimited number of related amendments. In other words, amendments that are pertinent to the bill, that are at least germane. Again, the minority leader rejected this third offer. Of course, let us not forget each offer included an up-or-down vote on a nongermane amendment that the Democrats demanded, which is an amendment by Senator Kennedy on the minimum wage.

We also heard yesterday that filling the amendment tree was unprecedented, and we are somehow committing a terrible wrong against the institution of the Senate. How soon we forget the past. I remind my colleagues that the minority leader filled the tree in October of 2002 on the homeland security bill, which was even a more important bill than this one, although this is an extremely important bill for this country. Mind you, he filled the tree after promising at the beginning of his tenure as then-majority leader he would never fill the tree. But he did so, anyway. To be sure, we even saw Senator Byrd do it when he was the majority leader. Unprecedented? Come on, give me a break. Terrible wrong?

Let us not hide behind Senate process in order to play both sides of the fence on class action reform. I said it yesterday, and I will say it again today: S. 2062 represents a bipartisan agreement we reached in good faith with key Democrats who say they support class action reform. We agreed to a number of their amendments in order to get them to agree to vote for cloture. That was the agreement. And implied in that agreement was to vote down poison pill amendments that would kill the bill. Otherwise, they weren't sincere; we know they must have been at the time, but they would not have been sincere in the bipartisan agreement we reached. We reached a compromise because I thought the ultimate goal was to get class action enacted into law.

Let me be clear when I say my agreement to further moderate this bill was in no way predicated on letting this legislation become a ``Christmas tree'' for unrelated measures. This is never the way we have done business around here. Our agreement was about getting class action reform enacted, and that is the very direction our leader is moving us toward. I can only hope my colleagues on the other side of the aisle who say they support this bill can see that. A deal is a deal. They should not break it because politically it might be in their best interest to do so. That works both ways. We should not break it because politically it might be in our best interest to bring up extraneous, nongermane amendments and make them vote on them.

Another argument my colleagues on the other side raised repeatedly yesterday was the Judicial Conference and the Chief Justice of the United States are somehow opposed to this bill. I have heard this point made over and over. I think it is about time to set the record straight.

Let me start by saying Chief Justice Rehnquist has never written a letter, issued a statement, nor published an opinion that comes out in opposition to this bill. Rather, my colleagues who make this claim rely on outdated letters from the Federal Judicial Conference espousing opinions on prior iterations of this bill--prior iterations, not the same language of this bill.

On two prior occasions, the Judicial Conference expressed opposition to earlier bills, as offered in the 106th and 107th Congresses that would have expanded Federal diversity jurisdictions over purported class actions. But in March of last year, a substantial shift in position occurred. In a March 26, 2003, letter to the Judiciary Committee, the Judicial Conference expressed its position on the bill by stating:

That Congress may decide to base a statutory approach to

remedy current problems with class action litigation by using

minimal diversity litigation. The Conference position

recognizes that the use of minimal diversity may be

appropriate to the maintenance of significant multi-State

class action litigation in the Federal courts.

The Judicial Conference also suggested employing provisions to raise the jurisdictional threshold and fashioning exceptions that would preserve a role for the State courts in the handling of in-State class actions.

Senator Feinstein offered an amendment during the ensuing markup that was directly responsive to these suggestions. Those changes were reflected in the version of the bill reported favorably by the Judiciary Committee in early April 2003.

Perhaps more important than what was said is what was not said. Nowhere in the letter does the Judicial Conference express opposition to the bill now in consideration. I think this silence is deafening and speaks for itself on where the Judicial Conference stands.

I ask unanimous consent that the March 26 Judicial Conference letter be printed in the Record.

To be sure, on the very day the bill was reported from committee, the ranking member sent letters to the Judicial Conference requesting comments on the revised version of S. 274 as reported out of committee and further urging that the Judicial Conference propose alternative legislative language reflecting its views on how the jurisdictional provisions should be structured.

I ask unanimous consent that the letter of April 11, 2003, from Senator Leahy be printed in the Record.

In its April 25 response, the Judicial Conference noted that the markup changes to S. 274 were responsive to its previous comments about changing the jurisdictional threshold and preserving the role of the State courts in handling State class actions. Indeed, the Judicial Conference expressed no opposition to the revised version of S. 274 reported favorably by the Judiciary Committee.

The Judicial Conference explicitly declined Senator Leahy's invitation to propose alternative language. The Judicial Conference's resolution deliberately avoided specific legislative language out of deference to Congress' judgment and the political process. The letter further noted that:

[T]hese issues implicate fundamental interests and

relationships that are political in nature and are peculiarly

within Congress' province.

I ask unanimous consent that the letter of April 25, the Judicial Conference response, be printed in the Record.

The Judicial Conference concluded its letter by stating:

We are grateful that Congress is working to resolve the

serious problems generated by overlapping and competing class

actions.

Finally, another piece of evidence that counters the Judicial Conference's purported opposition to the class action bill is Chief Justice Rehnquist's 2003 year-end report on the Federal judiciary. While this report criticizes various legislative measures considered by the Congress, absolutely no mention is made of class action reform efforts.

I suppose this begs the question then, if the Judicial Conference and Chief Justice Rehnquist stand opposed to this bill, why is there no reference to such a measure in their year-end report?

Again, I think the silence speaks for itself. I ask my colleagues to refer to the 2003 Year-End Report on the Federal Judiciary which can be found easily enough on the Supreme Court's website.

With all of this said, is it credible to suggest that the Judicial Conference, much less the Chief Justice of the United States, stands somehow opposed to the class action bill? I think not.

I will refer to this ``myth'' chart. The myth is that the Federal Judicial Conference opposes the Class Action Fairness Act.

These are the facts: The Conference's opposition was directed at class action bills in previous Congresses. In March 2003, the Conference strongly criticized the current class action system and suggested several areas to modify the Class Action Fairness Act.

After the Class Action Fairness Act was modified during markup, the Conference declined an invitation to criticize or revise the version favorably reported by the Judiciary Committee and thanked the Senate for its efforts to clean up the State court class action mess.

That certainly rebuts everything that was said on the floor yesterday and today by those who are looking for any excuse they can to scuttle this bill. Unfortunately, some of them are people who have agreed to support the bill. That seems apparent to me. I hope it is apparent to all of those in the various States who have relied on these agreements, and at least this agreement made last November, that we would at least vote for cloture. That was the whole issue. Then, of course, they could still have any amendment they wanted to bring up that would be germane, and they might even be able to bring up nongermane amendments if they could get a supermajority vote on them. So nothing would stop them from at least an attempt to bring up nongermane amendments.

I would like to also reply to comments made yesterday in defense--can anyone believe it?--of Madison County, IL. I heard suggestions that the Madison County court is not as renegade as we have portrayed it. After all, the number of certifications has not escalated at the same rate as the number of cases brought.

Now, this fact may have some appeal on its surface but when one looks at why the certifications are so low, I think they will find themselves right back to the inescapable conclusion that this court is a downright embarrassment to our civil justice system. Any attempt to defend Madison County's record on class certification must account for the number of class actions that were not certified because the defendants, knowing that the judicial deck was stacked against them, simply conceded defeat and settled rather than go through the motion of defending their lawsuit in this court.

As I said yesterday, the plaintiffs' lawyers who descend on this small rural courthouse in southwestern Illinois know class certification is a sure thing and that all they need to do is come up with a complaint in order to extort a settlement from the unfortunate defendants. These settlements come well before the class certification phase of the lawsuit and is exactly why this court is so attractive to greedy, dishonest lawyers--greedy, flagrantly dishonest lawyers-- looking to make a quick buck, money hungry lawyers looking to buy their next Gulfstream at the expense of everyday Americans such as Hilda Bankston, dishonorable lawyers looking to pay off their next multimillion-dollar mansion in Palm Beach, FL, at the expense of shattering public confidence in our civil justice system, and unscrupulous lawyers seeking to fund the next campaign of a State court judge who can tilt the playing field for them in yet another magnet jurisdiction.

There is something clearly rotten in middle America, and when it comes to Madison County, there is only one way to describe it: If you go there, they will pay. If someone is brought in as a defendant there, even though they do minimal business in that State, they are going to pay.

Finally, I would like to respond to the wild accusations from the other side of the aisle that the Republicans are trying to kill this bill because the measure does not go far enough to achieve class action reform. Give me a break. I do not think this accusation merits a real response, other than to observe that my colleagues on the other side of the aisle will resort to just about anything in order to justify their vote against this bill, in order to justify this filibuster against this bill.

Despite all the rhetoric we have heard from the other side about how they support class action reform, about how terrible this system has become and about how we have a modest bill that fixes the problem, we will know their true colors when we vote on cloture either tonight or tomorrow.

It makes absolutely no difference whether Senators vote no because they oppose the bill or because they want to preserve the sanctity of the Senate process. A vote against cloture is a vote against class action reform. It does not get any simpler than that.

By the way, how can they make that argument when they have a right to bring up any amendment they want to after cloture is invoked? True, nongermane amendments will have to have a supermajority vote to pass, but all germane amendments only have to have a majority vote to pass. How can they make these types of clownish arguments?

To make a long story short, it is apparent that sometimes money does count around here, and the only reason this thing is fought so hard is because the major funding institution in this country happens to be the trial lawyers for those on the other side of the aisle.

Now, what galls me is that last November, when we had 59 votes for cloture, 1 less than was necessary to end the debate, we then made all kinds of concessions to three more Democrats--and I think the business community knows who they are--that are now in this bill to get their agreement that they would vote for cloture when the time came. There was no misunderstanding. Everybody knew there would be an attempt to load this bill up with poison pill amendments or killer amendments, if one wants to call them that. It meant that we at least go to cloture and get 62 votes for cloture, and I believe it meant more than that.

I think when we make a deal, those who enter into that deal agree to support the bill, against all amendments, unless we can agree otherwise. Unfortunately, that is not the interpretation of some who agreed to the deal last November. But there could be no misunderstanding. Their agreement last November was to vote for cloture. The whole issue was we lacked one vote in putting this bill before the Senate as a whole and letting it have its day in court, so to speak, in a court that is much more fair, much more balanced, and much more considerate than the courts in Madison County, IL.

There is no excuse for the arguments that have been made by the other side. If this bill goes down because we cannot get 60 votes for cloture, then shame on those who entered into the agreement with us. It was not an easy agreement for some of us because we had to make changes that literally some of us would not have made otherwise. So anybody who says this side does not want this bill to go forward is being less than candid, and I will put it in those terms, although I think probably more stark terms would be acceptable.

This is an important bill. This bill will correct some of the major wrongs in our society from a litigation standpoint. This bill is fair. It is not going to stop truly in-State lawsuits from being tried, even in Madison County, but this bill does correct some tremendously rotten situations in our country. It also would be supported by decent, honest lawyers throughout the country, at least lawyers who do not always think of the almighty dollar as the only reason they are practicing law.

This is a very important bill. There are a lot of great trial lawyers out there who I believe are embarrassed by some of the arguments that have been made by my Democratic colleagues. There are a lot of great trial lawyers who do not need phony courts, or dishonest courts, or courts that go way beyond reasonability, or courts that favor them, or magnet courts to win their cases. Great lawyers are going to be able to win their cases whether they are in State court or Federal court. In fact, I suggest they probably have an easier chance in Federal court because people automatically think those courts are more august and the cases more serious.

But here we have a case where true advantage is being taken of the class action system by a limited number of lawyers in our society who are getting fabulously wealthy and rich because of forum shopping to courts like the Madison County court that are going to find for the plaintiffs no matter what the law or the facts say. That is wrong. When plaintiffs are right, they ought to recover, but when they are not right, they should not recover. The courts ought to be the bulwark of standing for what is right and not what is wrong. In the political system that exists in Madison County, IL, it is a system that, if it is not corrupt, it is the closest thing to it.

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

I suggest the absence of a quorum.

Mr. President, this afternoon, I have listened to my colleagues speak courageously about their family members they have lost to suicide. My heart goes out to all of them, especially, my colleague and dear friend, Senator Gordon Smith. By speaking openly about the circumstances of his son, Garrett's death, he has raised awareness to the serious matter of youth suicide. I am proud to be an original cosponsor of the Garrett Lee Smith Memorial Act. I believe the Senate will approve this legislation today due primarily to Senator Smith's courage to speak openly about his own family's experience.

This legislation is necessary because it raises awareness of the alarmingly high rate of youth suicide--it is much higher than most would believe. Suicide is the third leading cause of death for young people aged 15 to 24, and the fourth leading cause of death for children between 10 and 14. My own State of Utah is ranked among the top 10 states in the nation for suicide.

I cosponsored this bill because it provides grant funding to states so each may develop a youth suicide and intervention strategy through the administrator of the Substance Abuse and Mental Health Services Administration in order to prevent teen suicide. This money may be used to develop statewide early prevention and suicide intervention strategies in schools, educational institutions, juvenile justice

systems, substance abuse programs, mental health programs, foster care programs and other child and youth support organizations.

The bill also creates a federal Suicide Technical Assistance Center to provide guidance to state and local grantees on establishing standards for data collection and the evaluation of this data. Finally, this legislation provides grant funding to colleges and universities to establish or enhance their mental health outreach and treatment centers and improve their youth suicide prevention and intervention programs.

I became deeply interested in this issue when I found out that my home State of Utah suicide rates for those ages 15 to 19 have increased almost 150 percent in the last 20 years. According to the CDC, in the mid-1990s, Utah had the tenth highest suicide rate in the country and was 30 percent above the U.S. rate. This is one statistical measure on which I want to see my state at the bottom.

Teen suicide is an issue that is rapidly becoming a crisis not only in my State of Utah but throughout the entire country. Young people in the United States are taking their own lives at alarming rates. The trend of teen suicide is seeing suicide at younger ages, with the United States suicide rate for individuals under 15 years of age increasing 121 percent from 1980 to 1992.

Suicide is the second leading cause of death among college students. In a 1997 study, 21 percent of the nation's high school students reported serious thoughts about attempting suicide, with 15.7 percent making a specific plan. Although numerous symptoms, diagnoses, traits, and characteristics have been investigated, no single fact or set of factors has ever come close to predicting suicide with any accuracy.

We need to understand what the barriers are that prevent youth from receiving treatment so that we can facilitate the development of model treatment programs and public education and awareness efforts. This bill provides the funding to get these types of initiatives started.

Again, I am proud to be an original cosponsor of this legislation and I commend my colleague, Senator Gordon Smith for his commitment and dedication on this matter. I know it is such a difficult subject for him but his openness today will make a difference tomorrow.

In fact, I believe our floor discussion today on the Garrett Lee Smith Memorial Act has already made a difference because families who have lost someone to suicide now know that they are not alone. And, if one life is saved because of our consideration of this bill today, we have done our job.

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

Mr. President, I would like to be standing here today to debate the merits of why we should be voting for cloture on this bill. But since we all know how this vote will turn out, I just want to congratulate in advance some of my colleagues on the other side of the aisle for killing yet another civil justice reform measure this Congress.

The constituents that they serve--the powerful and well financed plaintiffs bar--owe them a deep debt of gratitude for not only killing class action reform but also derailing the asbestos trust fund bill, the medical malpractice reform bill, and gun liability reform bill, to name a few. Their truly special interest constituent has survived yet another year devoid of tort reform, and as a result, will continue raking in millions of dollars in cash to help finance the Democratic party in the coming months.

I am hoping the 62 people who committed to vote for cloture last November will vote for it. We can even lose two of them as long as we have 60 to vote for cloture. If we have 60, then I will feel a lot better than I do in giving these remarks.

But unlike the caution chorus that they rolled out to kill the asbestos bill, the tactics used by my Democratic colleagues to defeat class action reform have been disappointing at best, and downright disingenuous, at worst. We tried to proceed on this bill last year and were led to believe that we would command enough votes to overcome a Democratic filibuster. Indeed, before the cloture vote, we had certain members declare their support publicly for the bill. But when the moment of truth came, there was at least one member from the other side who voted against proceeding on the bill despite statements to the contrary. And what happened? We fell one vote shy of invoking cloture.

After the vote, we had three additional Democratic members come to us just days before our Thanksgiving recess eager to strike a deal on class action reform. So we listened, and we negotiated, and then we compromised. And at the end of the day, we reached an agreement on a more modest version of the class action bill. But the honeymoon certainly did not last long as the supporters of the measure started demanding extraneous labor-oriented amendments that included a measure to raise the minimum wage; a measure to extend unemployment insurance; and a measure to overturn the administration's overtime regulations.

We gave them votes on two of the three and then offered yesterday to give them a vote on the third. But of course, we all know that three was not enough.

We heard the stories of how the Senate must work its will, and how the hallmark of this institution's procedures cannot be compromised; that we must take on more extraneous amendments that have absolutely nothing to do with the business at hand. But what these colleagues know very well is that the more amendments this bill takes on, the less likely it will become law.

We have a bipartisan deal on class action reform that now stands on the verge of collapse--a broken deal that will forever stain the honor of this hallowed institution the minute the supporters of this bill cast a no vote on cloture. In a court of law, we would call it a breach of contract, but in the Senate we are not governed by common law principles when we legislate. Rather, we are governed by honor and credibility--attributes that will lose stock the minute this bill fails.

Let me just finish by saying that a vote against cloture means that you are not committed to class action reform. Let us not dance around the issue any further, and just call a spade a spade.

A vote against cloture means that you care more about helping certain unscrupulous plaintiffs' lawyers rather than every day consumers like Martha Preston, Irene Taylor and Hilda Bankston. These are the real victims whose horror stories will fall on deaf ears.

And a vote against cloture means that a deal will never be a deal unless strings are attached. That true bipartisanship will always come at a price to be disclosed later.

I have been here 28 years. I have never seen, when we finally put a deal together, people who have not been willing to live up to their commitment.

Everybody knew back in November of last year that we needed one more vote to get cloture. We compromised. We accepted amendments which we probably wouldn't have accepted because we had--we had 59 who would have voted for the bill as it was--to get those extra votes. Now there is some indication that those three votes will not be there, and we will probably lose on cloture again. I am hoping that is not true. I am hoping all three votes will be there, or at least one that will be there so that we can invoke cloture and proceed on this bill. If we can't, then I have to say this is one of the few times that I have seen where commitments are made that have not been honored that should have been honored, and it is a disgrace to this institution, in my humble opinion.

Keep in mind that if we invoke cloture, that doesn't mean those who want to bring up extraneous, nongermane amendments or nonrelevant amendments can't do it. They can bring them up after cloture, but they are going to have to get a supermajority vote to win. That doesn't foreclose them.

Anybody who argues that they ought to be able to bring up any amendments they want when it is hurting the Senate, is not shooting straight. The fact is, they can bring up any amendments they want. They just have to get the votes to win. Maybe they will postcloture. I don't know.

But in all honesty, we all know the game. It is either we are going to get cloture and people are going to live up to their commitment or not, and bipartisanship is even hurt more than it has been up until now. It has been in shambles as far as I can see almost all year long. This has been one of the worst years in my Senate career because of the lack of partisanship, the lack of comity that normally exists in this body in the desire to make everything political and the effectiveness of making everything political as well.

This is one bill that does not deserve that kind of unfair treatment, especially since we compromised last year and took amendments we would not have taken and changed the bill we would not have changed, all for the purpose of getting enough votes to vote for cloture. And now we are here again this year--another year, 6 years in a row--whereby the same people who said they were for this bill and talked us into all these amendments on the basis that they would vote for cloture may not. I personally hope they will. If they will, it will do more for comity in this body, more for bipartisanship than we have seen all year. It would be a ray of hope to everybody in this body that maybe there is a chance of us getting together on things that are important, the things that are right, things that we promised, things that will benefit the business community, things that will correct the ills which literally have been wrecking this institution and hurting our country immeasurably and will put the screws to these jurisdictions, these magnet jurisdictions, that do not seem to care about the law or anything else.

Cloture Motion