Floor Statements

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

Mr. President, I would be happy to yield it back.

Excuse me, let me withhold that.

I suggest the absence of a quorum.

Mr. President, I have been listening to this debate, and I would first like to respond to the concerns raised by some of my colleagues on the other side of the aisle about the majority leader's decision to fill the amendment tree. First, I commend the leader for taking this unfortunately necessary step because it significantly minimizes the mischief that will in all certainty occur if this bill is left open to amendments that have absolutely nothing to do with the subject of class action.

These are amendments that are offered to score political points in an election year and that, at the end of the day, will obliterate any chances that class action reform will become law. That is exactly what is involved, and we all know it. We know that if some of these amendments are added to this bill, it will kill the bill.

We thought we had an agreement last November, of 62 people. As I have always interpreted it, when you get an agreement to support a bill, that means support it against all amendments unless those who made the agreement agree otherwise. My colleagues on the other side say that was

not the agreement. That has been the agreement every time around here, where you know that mischief is going to occur and we just continue on and on.

By filling the tree, the leader has effectively protected key bipartisan legislation from the same procedural pitfalls that faced the DOD authorization bill, FSC/ETI, and the Internet tax bill, just to name a few.

To be sure, the current move to protect the bill from nonrelevant or nongermane amendments is nothing new, as former majority leaders have invoked this prerogative with other important pieces of legislation in the past. The ranking member from Vermont even admitted on the floor last night that S. 2062 was probably the last amendable vehicle to be considered by the Senate this year. While this bill has legs to move out of the Senate--that is why it is the last amendable bill in his eyes--I can assure you it will go nowhere if it is bogged down with extraneous amendments that peel votes in the Senate.

That is the game here and everybody knows it. Everybody on the outside should know it, too. We made a deal; we had 62 people agree to the language in this amendment. Now we have people peeling off from the language in this amendment by wanting to be able to vote for nongermane and nonrelevant amendments which will kill the bill.

Assuming the bill goes out of the Senate with controversial amendments, what is going to happen in the House after they alter the bill? I seriously doubt we will have enough time this year to resolve differences in conference. Indeed, I think the chances are pretty slim, especially since the minority leader has threatened to oppose the appointment of conferees for the rest of the year.

How do we get it done if we put nonrelevant amendments on this very important bill that we have worked on for 6 years to get to this point? A lot of decent people on both sides have worked very hard, but we know we are going to have to have 60 votes to vote on this bill.

The minority leader himself has threatened to oppose the appointment of conferees for the rest of the year. How do you get this bill if these nongermane, nonrelevant amendments are added? It is apparent some of them might be. Even if you could, how do you get it by the House? Even if you get it by the House, how do you get it by the conference?

Then, when those amendments are taken off, also if they were taken off in conference--assuming we would be given the privilege of being able to hold a conference, something that has not been denied to my recollection before this year--we may not have time to get this bill done anyway.

S. 2062 embodies the bipartisan deal we reached in good faith last November, Democrats and Republicans, 62 of us reached in good faith. We reached a compromise because I thought the end goal was to get a class action bill passed into law. I can say, in all certainty, that my agreement to further moderate this bill was certainly not premised on letting it become a Christmas tree for unrelated measures so people can score political points on the floor of the Senate--people who never would vote for this bill to begin with.

If the supporters of the underlying bill really want class action reform, I see no reason why they should not support the leader's action. No one is denying Members from offering amendments that are germane to the bill, although I would recommend we even vote those down unless the people who agreed in a bipartisan way agree to allow those amendments to pass. That is what we usually do on legislation around here. But now we have all new rules here that suddenly spring up.

No one is denying Members from offering amendments that are germane to the bill, amendments that Members, in their view, believe will improve the bill. If they will, we can agree on those. I see no reason why we cannot give these amendments an up-or-down vote. In fact, the leader explicitly made this offer to the other side when he tendered a time agreement to consider several key amendments, including a vote, a vote on a nongermane, nonrelevant amendment, Senator Kennedy's amendment on the minimum wage measure which he has been trying to get up for quite a while. That is how far the majority leader went. But, no, they want a lot of other buzz amendments that are political in nature, that they think they can pass, that will kill this bill. Anybody with brains knows the game.

This was a good-faith offer by the leader. We have heard for some time how important a minimum wage amendment is to my colleagues and to the country. I don't know of anybody on our side objecting to consideration of the minimum wage amendments and any amendment also to it. What we do object to is a never-ending moving of the goalposts where more and more amendments are added, especially nongermane and nonrelevant amendments.

Because the Democrats objected to this very generous unanimous consent request, the leader had no choice other than to protect the class action bill from this open season of political amendments that will kill it anyway.

That is what it comes down to. Either we are going to vote for this class action bill, the 62 of us who have agreed it should pass--and I think more would vote for it in the end--or it is going to be killed. Because that is the choice. We made a deal last November to pass class action reform and that is the direction our leader is taking us today.

When it comes to nongermane amendments that appear to be offered to score political points in an election year, I want no part of that on this bill, and neither does the leader, and for good reason. We know the games around here.

There are a significant number of Democrats who do not want this bill under any circumstances because the No. 1 hard money funder to Democrats happens to be the personal injury lawyers in this country. The No. 1 funder of the Presidential campaign happens to be personal injury lawyers in this country, for the Democrats. The No. 1 opponents against this bill happen to be some of the personal injury lawyers. Not all, because the really good lawyers can go to Federal court and get big verdicts. They don't have to have false mechanisms to be able to get good verdicts on behalf of their clients. They don't have to play games with magnet courts that are, if not corrupt, so close to being corrupt in some of these special jurisdictions in this country where they have had a field day.

Regarding the jurisdictional test in S. 2060, the minority leader made the point they cannot get their cases tried in South Dakota if this bill passes. That is total poppycock. You know, the jurisdictional test in S. 2062 moves only larger interstate class actions to Federal court, including large cases where there are more than 100 class members and more than $5 million in amount in controversy.

If they fit that jurisdictional category, then they will have to go to Federal court. But as somebody has tried a lot of cases in both Federal and State courts, I have to say we used to love to get to Federal court because people know it is a more important case. The reason some of these attorneys want to go to some of these State courts, such as Madison County, is that is where it is a field day for plaintiffs' lawyers whether they have a good case or not--and they know it, and they have been milking this system and hurting people all over this country in ways that are unseemly and, frankly, wrong. S. 2062 also has exceptions to keep local controversies in State courts. We have these exceptions.

To make a long story short, I have heard my colleagues on the other side--some of the people who have agreed to be cosponsors of this bill, who have agreed to be in the 62 who have supported this bill which would make up enough to be able to invoke cloture on this bill--now moaning and groaning they want a right to bring up nonrelevant, nongermane, political amendments to score points. That is not the way I have operated around here, and that is not the way most Senators have operated around here, but that is what we are faced with here.

Either we are going to invoke--probably we will have to file cloture in order to end another filibuster. I hope the 62 people who said they would be for this bill will vote for cloture. If they are not, then this bill is going to be dead and 6 years of honest work, 6 years of bipartisan effort, is going to go right down the drain.

We all know what the game is around here. It is by those who have never wanted this bill to pass anyway, some who want to play both sides on this thing, who basically want to have the right to foul up the bill with amendments they know the House won't take and they know if we have to go to conference we are probably not going to be able to get conferees.

That is what is involved, and it is a game. It is a bad game at that. I have been known to stand up for the trial lawyers when they are right. I have taken a lot of grief for it from some people on our side who are wrong, too. I am going to stand up for them when they are right because trial lawyers do a lot of good in our society when they stand up and fight for those who are downtrodden and not treated properly in our society.

What has been going on for years in this area is the abysmally dishonest forum shopping to local areas where they can get huge verdicts that shouldn't be gotten because they don't get them in their own jurisdiction. That is wrong. I think a lot of trial lawyers are starting to get upset about it because it is giving all trial lawyers a bad name because of the few who milk the system like this to the detriment of consumers, to the detriment of the little people, to the detriment of those who can't make it. That is what is involved, and everybody knows it.

To play this political game and bring up nongermane and nonrelevant amendments that we know will kill this bill is a terrible thing.

All I can say is there comes a time when you have to vote. There comes a time when you have to stand up and do what you said you would do. If you do not do it, then shame on you. All I can say is, that is what is involved, and anybody who says otherwise, it seems to me, is wrong.

I yield the floor.

Madam President, I know some of my colleagues on the other side want to speak. I have much more to say about this issue, and especially after the distinguished minority whip has chatted.

That would be fine. Do we know how long they would speak?

Can we get some idea?

I have no problem with that.

Did the Senator have enough time? Is the Senator finished? I would certainly grant him more time.

Madam President, I appreciate much of what the distinguished Senator from Connecticut has said with regard to this bill. He is right on. I do not agree with him that he should not vote for cloture on this matter because he knows, we all know, if we do not get cloture, this bill is not going to make it.

The Senate is used to having nongermane, irrelevant--nonrelevant amendments foreclosed in order to get legislation passed. We all know unless we foreclose that, this legislation is never going to see the light of day. That is what we have been putting up with now for 6 years.

To come on the floor today, as some have, and indicate that the Senate is going to be broken if we proceed on this bill in a way that permits only germane amendments and with one nongermane amendment which those on the other side have wanted for months, and which I think the majority leader was willing to give them, is not shooting straight, as far as I am concerned. As everybody knows, we have worked 6 years on this bill; 62 people signed off on this bill as prime cosponsors. We lost on cloture by one vote last time, one solitary vote. If we get only one of the three who agreed to go ahead with this bill, knowing it would cut off the extended debate or the filibuster, which is what we agreed to, then this bill is going to go forward and we will only have to deal with germane amendments and not a whole proliferation of nongermane, political, politicized amendments, which is what the majority leader would like to foreclose.

All of the holier than thou ``we must preserve the Senate'' comments are meaningless in this context. If this were the first time this bill had ever been considered, if it had not had extensive debate through at least four hearings through the years, if it hadn't had an extensive internal debate as we agreed to accept a whole raft of amendments by the three who came on this bill back in November of last year with the understanding that we are going to invoke cloture--if we had not gone through all that, then I might see some reason for the comments made here today, but those comments should not see the light of day if you look at the facts and you look at what has gone on here.

Let me mention my support of S. 2062, the Class Action Fairness Act of 2004. I appreciate Senator Reid's impassioned defense of trial lawyers. It is a profession I proudly belong to and share with him. But this bill is not about attacking trial lawyers. It is about correcting certain grotesque abuses of our judicial system by a handful of class action lawyers who are giving all the other trial lawyers a bad name. On this point the evidence is clear and undeniable.

Furthermore, I would like to note that the Erin Brockovich case, which my Democratic colleague from Nevada mentioned, would have remained in State court. There is no question about that. The suit of Anderson v. PG&E, known as the Erin Brockovich case, was brought in California by California residents against a California company.

There is no question that if they wanted to stay in State court they could. Under this bill, the case would not have been eligible for removal under diversity jurisdiction principles. Our concern is to remove truly national actions to Federal court and not local controversies like this one.

The evidence is clear and undeniable. The well-documented abuse of the class action litigation device victimizes plaintiffs--the very people that class actions are supposed to benefit. These abuses cheat millions of consumers who unwittingly have their legal rights adjudicated in local courts thousands of miles away. They deny the due process rights of defendants who are relentlessly hauled into a handful of small county courts where the playing field is unfairly tilted in favor of the plaintiffs' bar. And if that were not enough, class action abuses are eroding public confidence in our civil justice system.

To give the class action problem some perspective, I want to consider the effect of this litigation in just one locale--Madison County, IL, which the Senator from Connecticut mentioned. There we find a case study in the rampant misconduct within the class action system, its corrupting effect on the courts, and the desperate need for reform. This small town in the Southwestern part of that state provides all

the evidence necessary to convince anyone that the legal system is currently being exploited by shameless and self-seeking plaintiffs lawyers.

Madison County, IL is a rural county. I imagine that it is the type of place where Abraham Lincoln first got his start as a young lawyer and advocate for justice. In some notes taken in preparation for a Law Lecture around 1850, Lincoln set the ideal for his profession, a profession practiced by many in this Chamber.

No. 1: Discourage litigation. Point out how the nominal winner is often the real loser in fees, expenses, and waste of time.

No. 2: Never stir up litigation. The worst man can scarcely be found than the one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defective titles and stirs up strife to put money in his pocket. The moral tone ought to be infused into such a profession which should drive such man out of it.

No. 3: An exorbitant fee should never be claimed.

That was Abraham Lincoln. These words were uttered during a time when being a lawyer carried a title of honor, integrity and trust. Unfortunately, these words no longer carry such meaning for the lawyers who descend on Madison County. In the ``Land of Lincoln,'' the rule of law has been corrupted almost beyond recognition by self-interested personal injury lawyers, plaintiffs, and public officials without any sense of shame.

Unscrupulous personal injury lawyers go forum shopping to find friendly jurisdictions such as Madison County. Then the judges in those jurisdictions are frequently compromised by campaign contributions from the very same law firms arguing in their courtrooms and certify these cases with the proverbial rubberstamp, even though they don't deserve certification.

Finally, sympathetic local juries trying out-of-state corporations bestow unjustified and sometimes outrageous awards.

This pattern of behavior is not only an affront to the due process right of the defendants, but it breeds disrespect for the rule of law itself.

Let me refer to this chart. ``Honest Abe'' would be ashamed, and I would say anyone else would be ashamed who studied his life. The ``Land of Lincoln'' has become the land of lawsuits. Madison County has become the principal place where they bring these frivolous lawsuits and where they bring them because they are forum shopping. They know they can take unfair advantage. It is easy to see. They hire the attorneys right there in Madison County who have helped to support the judges who sit on the bench. The juries in that county don't care what the rule of law is or what reasonable approaches to the law really may be.

The courthouse in Madison County, IL is now described as ``magnet court,'' always on the lookout to find suitable venues for enriching itself. Entrepreneurial plaintiffs' lawyers or personal injury lawyers, many who practice in the field of personal injury, are sucked into its orbit.

The numbers alone tell the story. Over the last 5 years, the number of class actions in the county has increased by 1,000 percent.

Let me repeat that so this astronomical figure can sink in: a 1,000- percent increase. It almost defies logic. In 1998, there were only two class actions filed in the county. In 2000, that number rose to 39. In 2001, there were 43 new class actions.

One year later, the bridges leading to the riches of Madison County were clogged with carpet-bagging lawyers as word hit the street that the local court there was giving away money like it was Christmas Morning. Enterprising plaintiff's lawyers looking to make a quick buck knew that Madison County was the place for business. This includes millions of people. In 2002, 77 class action suits were field. In 2003, there were another 106. Between 1998 and 2003, the number of class actions in the county rose from 1 to 106.

In the classic American musical The Music Man, a con man came to take advantage of a small Midwestern town. In today's revival, a marching band of lawyers has descended on Madison County, with tall tales of jackpot justice and the dream of getting something for nothing. Only this time the judges of that Midwestern town have joined hands with the con-men to take all of America for a ride. Even when the purveyors have law degrees on their walls, snake oil is still snake oil.

Just in the last 3 years, the lawyers who flocked to Madison County succeeded in having the following classes certified:

All Sprint customers in the entire Nation who have ever been disconnected on a cell phone call in a suit in Madison County; every RotoRooter customer in the country whose drains might have been repaired by a non-licensed plumber; and all consumers who purchased limited edition Barbie dolls that were later allegedly offered for a lower price elsewhere.

Those are just three examples of how ridiculous this was getting. If it were not so tragic, it would almost be easy to laugh at these cases. We laugh at the thought of small county courthouse in Illinois adjudicating cases against national companies, involving various State and Federal regulations, and involving millions if not billions of dollars in settlements--but where neither the plaintiffs nor the defendants are typically residents of the county. These locally elected judges, with the close assistance of interested plaintiffs' attorneys, merrily continue to set policy for the entire nation, defying the principles of self-government on which our Federal system is based.

This situation is a mess and a few plaintiffs' lawyers are exploiting it to the hilt. The same five firms appeared as counsel in 45 percent of all cases filed between 1999 and 2000. Of the 66 firms appearing in these cases, 56 of them--85 percent--had office addresses outside of Madison County.

In this small county, with a population of 259,000, there are somehow more mesothelioma claims from asbestos exposure than in all of New York City, with its population of 8 million. On 9-member firm with an office in Madison County claims to handle more mesothelioma cases than any firm in the country.

And who benefits form all this litigation? One Madison County judge approved a $350 million settlement against AT&T and Lucent for allegedly billing customers who leased telephones at an unfair rate. What did the lawyers get? Forty-four lawyers from our firms will split $80 million for legal fees and $4 million for expenses. And the customers? They actually lost money. After their legal fees, the average class member got hit for $6.49. That is outrageous.

Lincoln's example is a distant memory in Madison County and clearly something is rotten in middle America. The Washington Post has succinctly described the situation. ``Having invented a client, the lawyers, also get to choose a court. Under the current absurd rules, national class actions can be filed in just about any court in the country.'' And those lawyers are picking Madison County. They're picking it because it is what some call a magic jurisdiction.

Dickie Scruggs happens to be a friend of mine. He made this comment. Dickie is one of the most wealthy and successful trial lawyers in the country. But he said this regarding Madison County and the ``magic jurisdictions.''

What I call the ``magic jurisdictions'' . . . is where the

judiciary is elected with verdict money. The trial lawyers

have established relationships with the judges that are

elected; they're state court judges; they're populists.

They're what got large populations of voters who are in on

the deal, they're getting their [piece] in many cases. And

so, it's a political force in their jurisdiction, and it's

almost impossible to get a fair trial if you are a defendant

in some of these places. The plaintiff lawyer walks in there

and writes the number on the blackboard, and the first juror

meets the last one coming out the door with the amount of

money. The cases are not won in the courtroom. They're won on

the back roads long before the case goes to trial. Any lawyer

fresh out of law school can walk in there and win the case,

so it doesn't matter what the evidence or the law is.

This was Dickie Scruggs talking to Asbestos for Lunch, in May 2002. I think Dickie Scruggs has been very honest and accurate. I don't think anybody can deny what he is saying.

What makes it so magical? In a magic jurisdiction, the supposedly objective judge and jury both stand to gain from the settlement. Madison County is, the Chicago Tribune noted, a jackpot jurisdiction where local newspapers ``sport advertisements looking for the local plaintiff who can provide a convenient excuse to file.''

This choice of venue might have something to do with the fact that the elected judges of the circuit court of Madison County receive at least three-quarters of their campaign funding from the lawyers who appear before them in these class action suits. Unbelievably, since it so obviously smacks of corruption, this is an increasingly common occurrence all over the country. It is all enough to make an honest person cringe.

As a fellow attorney, who has taken an oath to support justice and the law, this story of juries and judges in the back pockets of those arguing before them, turns my stomach. Magic jurisdiction? Judicial black hole is more fitting.

In a simpler time, a State court would only certify a class if there was a substantial local connection. The judges of Madison County have created an environment, however, where a lifetime resident of Washington State, who worked in Washington, was allegedly exposed to asbestos in Washington, never received medical treatment in Illinois, and had no witnesses in Illinois to testify on his behalf, actually thought it was worth a shot to bring suit in a strange town halfway across the country. What was his connection to Madison County? He vacationed in Illinois for 10 days with his family nearly 50 years ago.

In this case, the court did the right thing and refused to certify this man's claim. But that a lawyer would even consider bringing it shows how far gone Madison County is. So far that the Illinois Supreme Court took the extraordinary step of rebuking it. As legal ethics Professor Susan Koniak of Boston University School of Law explains, ``Madison County judges are infamous for approving anything put before them, however unfair to the class or suggestive of collusion that is.''

This isn't justice. This is a travesty. The St. Louis Post-Dispatch, one of this Nation's great newspapers, has followed this epidemic of litigation closely, and they describe the run on the Madison County courthouse as resembling ``gleeful shoppers mobbing a going-out-of- business sale.'' Due process itself is corrupted by this circus. What is going on in Madison County too closely resembles blackmail for my taste. The deck is stacked against these companies hauled to Illinois to answer these charges. The cases are heard on an expedited basis that barely gives the defendants a chance to respond. Under these pressures, they are typically given an offer they can't refuse, and they settle regardless of the merits of the case. These ultimatums offered by lawyers in cahoots with judges are better suited to an episode of The Sopranos than to a supposedly impartial justice system.

Let's be clear. These are not local disputes. S. 2062 does nothing to remove local suits from local courts. These are suits brought on behalf of a nationwide class of clients against corporations that do business in every state. Madison County is not chosen as the venue because of its quaint scenery. It is chosen because it is a sure thing, a sure bet. The fix is in. If it was a sport, we would say the game was thrown. Defendants in these class actions do not get a fair shake in Madison County.

This is not a triumph of federalism and local decisionmaking. It is the evisceration of federalism. One of the bedrock principles of a Federal government is that states are largely free to regulate their own particular affairs. To allow one State to legislate for another is to violate an important principle of self-government that this country is built upon. In the case of Madison County, a trial bar that knows few limits, coupled with a ready and able courthouse, is in fact imposing the will of a small few on the entire Nation. Madison County has been flooded with class action claims and now the Nation is drowning in them. This is a classic case for Federal intervention. In fact, this is a case study for the type of intervention in Federal affairs the Constitution was meant to allow.

Let me refer to what happens in Madison County and how it affects the whole country. As this chart shows, the white dot in the middle is Madison County. The overwhelming majority of class actions filed in Madison County are nationwide lawsuits in which 99 percent of the class members live outside of Madison County. As a result, decisions reached in Madison County courts affect consumers all over the country. The county's elected judges effectively set national policies on important commercial issues. They do it in a way that is basically dishonest.

There is a place for personal injury law in the American justice system. Americans have a sacred right to take their case to court when they are harmed by a person or a product. I will stand up for those rights against anybody and everybody, if necessary. Yet this right is endangered by a seriously compromised class action regime, not just in Madison County but in other jurisdictions throughout this country. To help resecure it we must enact this reform.

Today's lawyers do not take cases that come to them, they invent cases. They behave like entrepreneurs who find an issue before they find a plaintiff. They act like businessmen, the CEOs of Trial Lawyers Incorporated.

The problem is their business plan makes hash of our system of impartial justice and mocks our Federal arrangements. Much of this has occurred once the Supreme Court allowed attorneys to advertise. The great lawyers never advertise. It is only those who are in business to rake off the top of the crop. To be honest, I personally would be ashamed to advertise. If I was not good enough to get clients without advertising, I would be ashamed. Now, it is legal under our system, but since that happened, this is what is happening throughout the country.

It simply defies belief that the small county courts are the proper venue, much less a capable one, for complex multijurisdictional litigation. The plaintiffs bar has put its business model into motion in Madison County. First, find sympathetic judges, then bankroll their campaigns, and to seal the deal rush defendants into court without giving them an opportunity to investigate the claims against them. Justice demands fairness, but our system of decentralized class action litigation is fundamentally unfair to defendants, to plaintiffs, and the average American who ends up footing the bill for the unjustified billion-dollar settlements.

I thought we would compare this to Monopoly. Let's play Class Action Monopoly. Go. Come up with an idea for a lawsuit. Find a named plaintiff to pay off. Make allegations, no proof is needed. Get out of rule 23--which is an appropriate rule--get out of rule 23 free. Convince your ``magnet'' State court judge to certify the ``class,'' even though it is not certifiable. File copycat lawsuits in State courts all over the country. Sue as many companies in as many States as possible, even if they have no connection to the State.

Who gets the money? Columbia House case: $5 million for lawyers, discount coupons for plaintiffs. Blockbuster case, $9.25 million for lawyers, free movie coupons for plaintiffs. And they were not very many of those, at that. Bank of Boston case, $8.5 million for lawyers. Some plaintiffs even had to pay out of their own pockets to pay for this, even though they were the ones for whom the suits were allegedly brought.

You ought to ask yourself, What happens to me? Your employer takes a hit, maybe lays you off. Your health and car insurance premiums go up dramatically, which we have been seeing. The lawyers win; you lose.

Almost everything in society goes out of sight and goes up in cost because of what is happening in these jurisdictions and in these cases that really should never have been brought to begin with. The Class Action Fairness Act is a modest reform. It is not a great big change. It does not deprive substantive legal rights to any American in this country. All it does is make it easier to put these national cases where they belong; that is, in our national courts. According to one study, 98 of the 113 class actions filed in Madison County from 1998 to early 2002 could have been moved to Federal court under this legislation.

Justice demands that we act. Those who are injured will get their day in court. By voting for S. 2062 we will help make sure they get it in a court where justice can be dispensed.

I yield the floor.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session on Wednesday, July 7, 2004, at 10 a.m., in 215 Dirksen Senate Office Building, to consider the following nominations: J. Russell George, to be Inspector General for Tax Administration, Department of the Treasury; Patrick P. O'Carroll, Jr., to be Inspector General, Social Security Administration; Timothy Bitsberger, to be Assistant Secretary of the Treasury, U.S. Department of the Treasury; and, Paul Jones, to be Member of the Internal Revenue Service Oversight Board, U.S. Department of the Treasury.

Mr. President, I ask unanimous consent that the Committee on Governmental Affairs be authorized to meet on Wednesday, July 7, 2004, at 10 a.m. for a hearing titled ``Juvenile Detention Centers: Are They Warehousing Children With Mental Illness?''

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on Wednesday, July 7, 2004, at 10 a.m. on ``Judicial Nominations'' in the Dirksen Senate Office Building Room 226. Witness list:

Panel I: [Senators].

Panel II: Michael H. Schneider, Sr., to be United States District Judge for the Eastern District of Texas.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on July 7, 2004 at 2:30 p.m. to hold a closed business meeting.

Mr. President, I wish to associate myself with the extensive and good remarks of the distinguished Senator from Arkansas, Mr. Pryor regarding the nomination of J. Leon Holmes to be a United States District Court judge. Mr. Pryor comes from the State. He knows the man. He practiced law with him. He has read newspaper editorials in support of this man. He has read a number of letters--a wide variety of letters--from Democrats as well as Republicans in the State who say this man would make an excellent judge.

Having known Mr. Holmes personally, he vouched for his integrity and his qualifications, and I think we should pay attention to the distinguished Senator.

Of course, Senator Lincoln as well is strongly in favor of Leon Holmes for this Federal district judgeship.

In addition, this man has the highest rating by the American Bar Association that you can have--a ``well-qualified'' rating--which means he is placed among the higher echelon of great lawyers in this country.

I think we should heed Senator Pryor's views.

Of course, I think Senator Pryor makes an overwhelming case that this man deserves to sit on the Federal district court bench. So I rise today to express my support for the confirmation of J. Leon Holmes of Arkansas who has been nominated to be U.S. District Judge for the Eastern District of Arkansas.

Mr. Holmes is widely respected for his intelligence, his legal skills, and his commitment to the rule of law. Leon Holmes knows the value of hard work. He came from humble roots and is the only one among his seven siblings to attend college. He worked his way through college and finished law school at night while working a full-time day job in order to support his family.

Anyone would know how difficult that is to do.

Leon Holmes is an accomplished scholar and has displayed a wide- ranging academic interest. He is a distinguished graduate of Duke University, where he received a doctorate in political science, and the University of Arkansas law school. Mr. Holmes finished law school at the top of his class, was inducted into Phi Beta Kappa while a doctoral student at Duke University, and was named Outstanding Political Science Student upon graduation from college.

He has pretty terrific credentials.

Mr. Holmes is currently a partner with the Little Rock firm of Quattlebaum Grooms Tull & Burrow, specializing in complex business litigation, torts, and appellate practice. He has practiced commercial litigation at the trial and appellate level in State and Federal court for many years, and has acquired significant courtroom experience. Leon Holmes is well respected by the Arkansas Bar and is one of the finest appellate lawyers in Arkansas. In 2001, the Arkansas Bar Association bestowed its Writing Excellence award on Mr. Holmes.

In addition, Leon Holmes has been an active participant in the Arkansas Bar. He has taught continuing legal education courses to the bar on numerous occasions. He has been awarded the State bar's Best CLE award four times. He sits on the Board of Advisors to the Arkansas Bar Association's magazine and has chaired the editorial board for the bar's publication of Handling Appeals in Arkansas.

Mr. Holmes sits on the judicial nominations committee for the Arkansas State courts, which recommends attorneys to the Governor for judicial appointment in Supreme Court cases where one or more justices must recuse themselves. On two occasions, he himself has been appointed to serve as a special judge of the Arkansas Supreme Court. This is a great honor for a practicing attorney, and the justices praised Mr. Holmes for his service in those cases.

As a person who took advantage of the opportunities presented to him, Mr. Holmes believes in giving back to the community. He is committed to providing legal services to all, and has given approximately 200 hours of pro bono services during each of the last 3 or 4 years.

Among other cases, he has represented, on a pro bono basis, a terminally ill Laotian immigrant woman denied Medicaid coverage for a liver

transplant; an indigent man with a history of drug felony convictions; and a woman who lost custody of her children to her ex-husband.

He represented Ricky Rector, a mentally retarded Arkansas man whose execution then-Governor Bill Clinton refused to commute in 1992. He represents Clay Ford, who has been sentenced to life in prison for shooting at pointblank range and killing a police officer in 1981. He defended on appeal the largest jury verdict in Arkansas history, which involves a nursing home resident who allegedly died from neglect. Her family won a $78 million judgment.

Leon Holmes has given back to his community in areas outside the law as well. He was a houseparent for the Elon Home for Children while a graduate student in North Carolina. He also served as the director of the Florence Crittenton Home of Little Rock in 1986 and 1987, helping young women cope with teen pregnancy.

Those who work with and personally know Leon Holmes strongly support his nomination, as we have already heard from Senator Pryor, the distinguished Senator from Arkansas, and expect to hear from Senator Lincoln before the day is out. I certainly appreciate their endorsements of Mr. Holmes in his nomination hearing last year.

Let me address some of the arguments that are being put forward by Mr. Holmes' opponents: that he is extreme in his views on abortion, that he is anti-woman, and that he is insensitive on matters of race. Those are the major arguments that have been brought forth, and I believe based upon all of nothing. A full reading of Mr. Holmes' writings and, more importantly, a review of his actions in these matters, I think, will set the record straight.

There is no question that Mr. Holmes has been a pro-life activist. He served as president of Arkansas Right to Life. He was president from 1986 to 1987. He also served as secretary of the Arkansas Unborn Child Amendment Committee in 1984. Some of the statements he has made in the course of his activism he admits have been insensitive, and he has expressed regret for such remarks, but in almost every case they are decades ago when he was a much younger man.

For example, in a 1980 letter--think about that; it was 24 years ago--to the editor, Mr. Holmes criticized the argument that abortion should be available to rape victims as a red herring because ``conceptions from rape occur with approximately the same frequency as snowfall in Miami.'' Mr. Holmes has clearly apologized for this remark, which he made almost 24 years ago.

In response to a written question from Senator Durbin, he wrote:

I have to acknowledge that my own rhetoric, particularly

when I first became involved in the issue [of abortion] in

1980 and perhaps some years thereafter, sometimes has been

unduly strident and inflammatory. The sentence about rape

victims which was made in a letter to an editor in 1980 is

particularly troublesome to me from a distance of 23 years

later. Regardless of the merits of the issue, the

articulation in that sentence reflects an insensitivity for

which there is no excuse and for which I apologize.

I believe all of us have made statements in the past that we wish we could apologize for. Many of us have apologized for statements we have made in earnest and extreme ways. He is no different. He made some mistakes and says that he was insensitive at the time, but he apologizes for them. You have to look at his overall career and realize this man has a great reputation in that State and among his people and among his peers. If he is like the rest of us, and apparently on occasion has been, he is going to make some statements for which he has to apologize. We all have to do that from time to time. There may be some perfect in this body who do not have to, but I, for one, have had to apologize from time to time myself.

In a different editorial, Mr. Holmes compared abortion to the Holocaust. On another occasion, he wrote:

The abortion issue is the simplest issue this country has

faced since slavery was made unconstitutional, and it

deserves the same response.

In an April 11, 2003, letter to Senator Lincoln, Mr. Holmes explained:

In the 1980's--

Twenty-four years ago; at least two decades ago--

I wrote letters to the editor and newspaper columns regarding

the abortion issue using strident and harsh rhetoric. I am a

good bit older now and, I hope, more mature than I was at the

time. As the years passed, I came to realize that one cannot

convey a message about the dignity of the human person, which

is the message I intended to convey, using that kind of

rhetoric in public discussion.

Again, referring to his 1980 ``snow in Miami'' remark, Mr. Holmes wrote:

I do not propose to defend that sentence, and I would not

expect you or anyone else to do so.

Based upon this letter, Senator Lincoln reaffirmed her belief that Mr. Holmes would be a fair judge.

The fact is, regardless of any personal views, Mr. Holmes will abide by the rule of law. He understands that principle, and he is committed to it. He understands that his personal views play no role in his duty as a judge to honor stare decisis, or prior precedents, and to faithfully follow the precedents of the Supreme Court and the Eighth Circuit, within which he lives and practices.

Pro-choice attorneys and others in Arkansas who work with him have written to the committee in support of Mr. Holmes' nomination. Those who know him well strongly believe that, despite his personal views, Mr. Holmes will fairly adjudicate any abortion cases that may come before him. His supporters include Robin J. Carroll, legal counsel to the Democratic Party of Arkansas; Philip S. Anderson, a former president of the American Bar Association and a leading Arkansas trial attorney; and Stephen Engstrom, former Little Rock Planned Parenthood chapter board member.

Mr. Engstrom wrote:

I heartily commend Mr. Holmes to you. He is an outstanding

lawyer and a man of excellent character. Leon Holmes and I

differ on political and personal issues such as pro-choice/

anti-abortion. I am a past board member of our local Planned

Parenthood chapter and have been a trial lawyer in Arkansas

for over twenty-five years. Regardless of our personal

differences on some issue[s], I am confident that Leon Holmes

will do his duty as the law and facts of any given case

require.

Trial attorney Kent J. Rubens, a pro-choice attorney who successfully brought a lawsuit to strike down Arkansas' abortion statutes after Roe v. Wade was decided wrote: Q02

I cannot think of anyone who is better qualified to serve.

. . . As someone who has represented the pro-choice view, I

ask that you urge your members to support his confirmation.

Eileen Woods Harrison sent this letter to the committee:

I am a female attorney in Little Rock, Arkansas. I am a

lifelong Democrat and am also pro-choice . . . I commend Mr.

Holmes to you. He is a brilliant man, a great lawyer and a

fine person.

Another letter, this one from Cathleen V. Compton, states:

I heartily recommend Mr. Holmes to you. He is an

outstanding lawyer and a fine person. While he and I differ

dramatically on the pro-choice/pro-life issue, I am fully

confident he will do his duty as the law and facts of a given

case require.

Beth M. Deere wrote the following:

I am proud to be a Democrat. I am also proud to recommend

Leon Holmes as a federal district judge for the Eastern

District of Arkansas, even though he and I disagree on

issues, including a woman's right to choose whether to

bear a child. . . . I support Leon Holmes because he is

not only a bright legal mind, but also because he is a

good person who believes that our nation will be judged by

the care it affords to the least and the littlest in our

society. I am not troubled that he is personally opposed

to abortion. Mr. Holmes is shot through with integrity. He

will, I believe, uphold and apply the law with the utmost

care and diligence.

Another issue which opponents have distorted is that of gender equality. Mr. Holmes cowrote an article with his wife entitled ``Gender Neutral Language.'' Let's get it straight: he wrote this article with his wife. It was for a Catholic newspaper. This article, which appeared in a religious newspaper of his faith, stated: ``The wife is to subordinate herself to her husband'' and, ``The woman is to place herself under the authority of the man.'' Mr. Holmes' opponents believe these statements indicate he will not be fair to women appearing before him.

However, let me point out those statements are derived from the New Testament in Ephesians, the 5th chapter, verses 22 through 25, and represent the orthodox teachings of his religion. Although I do not have the same

version of the Bible, I believe it would read very much the same. But if you turn to Ephesians, the 5th chapter, it is interesting because starting with verse 21 it says--well, let's start with verse 20

Giving thanks always for all things unto God and the Father

in the name of our Lord Jesus Christ;

Submitting yourselves one to another in the fear of God.

Husband and wife. Then it says:

Wives, submit yourselves unto your own husbands, as unto

the Lord.

For the husband is the head of the wife, even as Christ is

the head of the church: and he is the Saviour of the body.

Therefore as the church is subject unto Christ, so let the

wives be to their own husbands in every thing.

But then Saint Paul goes on to say:

Husbands, love your wives, even as Christ also loved the

church, and gave himself for it. . . .

I do not think anybody can read this without understanding that the husbands have tremendously positive and important obligations in order to have the respect of the wives.

I don't think you could read it without understanding that Paul is comparing the husband to the head of the family, even as Christ is head of the church, more on the priesthood level than anything else. And the article seems to say that.

It says:

Husbands love your wives, even as Christ also loved the

church and gave himself for it;

That he might sanctify and cleanse it with the washing of

water by the word;

That he might present it to himself, a glorious church, not

having spot, or wrinkle, or any such thing; but that it

should be holy and without blemish.

So ought men to love their wives as their own bodies. He

that loveth his wife loveth himself.

It gets pretty bad around here when people misconstrue what somebody quotes in an article written for a church publication of the person's own faith, where the person and his wife quote St. Paul. You might disagree with St. Paul, but there are hundreds of millions of people who agree with St. Paul and who understand that he was trying to make the analogy between the church and Christ and between a husband and wife to show how important and sanctified the relationship of marriage is.

This article contains other statements, as I have said, supporting the equality of men and women such as:

All of us, male and female, are equally sons of God and,

therefore, brothers of one another.

The distinction between male and female in ordination has

nothing to do with the dignity or worth of male compared to

female.

Men and women are equal in their dignity and value.

These are quotes within the article. The article, to me, was clearly trying to state why the men in the Catholic Church have the priesthood, but the women have the family. And you might have written it differently, but the fact is, they quoted St. Paul, and St. Paul deserves the dignity of respect by this great body whether you believe in the New Testament of the Bible or not. I firmly believe in the New Testament. What Leon Holmes and his wife were doing was writing about traditional Catholic values and beliefs with which I think millions of people will agree. It hardly places him outside the mainstream and certainly places him in the mainstream as a religious believer and as somebody who loves his faith and his church and his wife, by the way.

Mr. Holmes' wife wrote to the committee to explain that the article in question was specifically written for the readership of members of their faith, persons who would be familiar with the New Testament passages being referenced with regard to the relationship between husband and wife. It is just terrible to distort their writings as husband and wife. If you read the whole article, you can hardly think Mr. Holmes is anti-woman. Furthermore, Mr. Holmes' actions support the truth he fully believes that men and women are equals.

He has supported women in the legal profession and represented women as clients. Mr. Holmes' past and present female colleagues in Arkansas support his nomination to this position.

Jeanne Seewald wrote this letter to the committee:

Leon was a strong proponent of my election to the

partnership and, subsequently, encouraged and supported my

career advancement, as well as the advancement of other women

within the firm. . . . As a colleague, Leon treated me in an

equitable and respectful manner. I always have found him

supportive of my career and believe he is very supportive of

women in general. Leon and I have different political views;

however, I know him to be a fair and just person and have

complete trust in his ability to put aside any personal

political views and apply the law in a thoughtful and

equitable manner.

Another co-worker, Kristine Baker, wrote the following:

Leon has trained me in the practice of law and now, as my

partner, works with me on several matters. His office has

been next to mine at the firm for approximately two years.

During that time, I worked with Leon as an expectant mother

and now work with him as a new mother. Leon's daughters

babysit my eleven-month-old son. I value Leon's input, not

only on work-related matters but also on personal matters. I

have sought him out for advice on a number of issues.

Although Leon and I do not always see eye-to-eye, I respect

him and trust his judgment. Above all, he is fair. While

working with Leon, I have observed him interact with various

people. He treats all people, regardless of gender, station

in life or circumstance, with the same respect and dignity.

He has always been supportive of me in my law practice, as

well as supportive of the other women in our firm. Gender has

never been an issue in any decision in the firm.

Lastly, with regard to issues of race, Mr. Holmes has been criticized for defending and endorsing Booker T. Washington's view that slavery was a consequence of divine providence designed to teach white people how to be more Christ-like. Some have alleged--but I hope we don't hear this misinformed view repeated during this debate--that Holmes has said that ``the Almighty said that slavery was a good thing or that he believes slavery is a good institution.'' In fact, nowhere has Mr. Holmes said he endorses slavery or that he believes slavery was a good institution.

The article at issue, written for a Christian audience, was an expression of his belief, shared by Washington, that God could bring good out of evil. So while Washington certainly condemned slavery as evil, having experienced it first-hand, he held a belief that ultimate good could come out of it. Mr. Holmes's article similarly expressed the view that good can come out of evil and that we are called upon to love all men and women.

Mr. Holmes also wrote his doctoral dissertation on the political philosophies of three major African-American thinkers and activists, W.E.B. DuBois, Booker T. Washington, and Martin Luther King, Jr. He argued that King attempted a synthesis of militant nonviolence, ultimately unsuccessful, of DuBois's advocacy of political agitation and Washington's advocacy of a Christian persuasion as means to achieve equality for black Americans.

However, Mr. Holmes left no doubt that he admired Dr. King's achievements in helping to integrate buses, schools, parks, playgrounds, lunch counters, and marriages. He noted the progress made in terms of the expansion of rights and opportunities for all Americans, stating:

Considering both the extent of the privileged status of

Southern whites that has been relinquished and the amount of

hate and prejudice that confronted desegregation twenty-five

years ago, the accomplishment [of social change] is

incredible.

Although Dr. King's vision has not been completely realized, Holmes wrote, ``in light of the unexpected changes in the past ten years, who can say that King's dreams will not all come true and `justice will roll down like waters and righteousness like a mighty stream?' '' Mr. Holmes concluded by urging the reader not to dismiss Dr. King's vision of a promised land, quoting the last words of King's final speech before he was assassinated.

Those who know Leon Holmes know he will be an outstanding jurist. The Arkansas Democrat-Gazette, Mr. Holmes' hometown paper that knows his record best, strongly supports his candidacy. The paper, writing while his candidacy was being considered, indicated that Holmes was a well qualified, mainstream nominee:

What distinguishes Mr. Holmes is the rare blend of

qualities he brings to the law--intellect, scholarship,

conviction, and detachment. A reverence not just for the law

but for ideas, for the life of the mind. All of that would

shine through the clutter of argument that awaits any judge.

. . . He would not only bring distinction to the bench but

promise. . . . In choosing Leon Holmes, [the President] could

bequeath a promise of greatness.

That is a pretty good editorial from the local Democrat Gazette.

Considering the total record of Mr. Holmes, a record of distinction in academics, of excellence in practice, and of distinction in his community, it is not surprising that the American Bar Association gave Mr. Holmes their highest rating, a ``well-qualified'' rating. Almost everyone around here has called that the gold standard, but especially our colleagues on the other side of the Senate floor. If you get a ``well-qualified'' rating from the American Bar Association, you are qualified. Yet we have had some who have misconstrued his writings and have indicated they will vote against him.

I hope they will listen to what we have had to say and look at the real record. There is no way that anybody who really understands that record would vote against this man.

My colleagues should know--and most of them will agree--that Mr. Holmes is a well-qualified nominee and will make a fine jurist. I urge the Senate to join me, as well as both Democratic home State Senators, Blanche Lincoln and Mark Pryor, who strongly support Leon Holmes' nomination, to confirm this outstanding candidate for the Federal bench.

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

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

How much time remains on both sides?

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

Mr. President, I have been here a long time. I sat through the comments of the Senator. I have heard a lot of remarks on the floor of the Senate with regard to judges. In fact, I have heard them for the last 28 years. I have to say that not only do I totally disagree with everything the distinguished Senator from Vermont has said, but I believe he has seriously distorted this man's record. Let me just answer these distortions with maybe a few points.

No. 1, this man has the support of virtually everybody who counts in Arkansas--Democrats and Republicans.

No. 2, he has the support of the leading newspapers in Arkansas, which are not necessarily known for supporting Republicans.

No. 3, this man is an intellectually profound man who earned a Ph.D. from Duke University before he got his law degree. He graduated with honors with his law degree as well.

No. 4, this man has the blessing of the American Bar Association, with the highest rating a person can have.

No. 5, Leon Holmes is a very religious person, and virtually everybody who writes in his favor--virtually everybody I have seen, including many Democrat leaders in Arkansas--state that he is totally capable of putting aside his deeply held personal beliefs in order to act with dispassion and fairness on the bench.

No. 6, a number of Democrat pro-choice women lawyers have written in and informed us that he has been their mentor, their advocate to partnership in his law firm; that he has not only been fair, he has been decent, honorable, and he has been their friend, even though they disagree with some of his personal views.

My gosh, if we are going to bring up every case an attorney has tried, because we differ with his particular clients, and paint the attorney as somebody who is not a good person, as has been done here, we would not have very many judges confirmed.

I could go on and on. Let me say that you don't get the well- qualified highest rating from the ABA because you are a jerk, as has been painted here. You don't get the support of Democrats and Republicans in your home State if you are a partisan who won't obey or follow the law. You don't get a Ph.D. from Duke unless you are a very bright person and somebody who has earned the right to a Ph.D. His studies were mainly of three great Black leaders, including DuBois, Washington, and Martin Luther King, Jr.

I could go on and on. I am just saying that I guess we could find a way to decry anybody who has ever tried a case, or at least a controversial case. Attorneys do that. I know the distinguished Senator from Vermont has done that. I have done that. If this body cannot understand why a person, when they are very young, makes some statements they are sorry they made later, then what body can? Many of the statements that have been described today are statements that were made almost 24 years ago, for which Leon Holmes has apologized and has received forgiveness from the people of Arkansas, and especially the two Senators from Arkansas, who know him more than anybody else here. They are both strong advocates for Leon Holmes.

Yet we sit here and hear very inappropriate comments and, in my opinion, highly distorted, about a man who is considered one of the better lawyers in Arkansas, maybe one of the better lawyers in the country. Look, it is time we quit playing these games with judges. Our side should not do it and the other side should not do it. If you disagree with Leon Holmes, vote against him, but you don't have to distort his record. Virtually every legitimate criticism he has had has been answered, and answered substantively. In fact, every legitimate question that has been raised has been answered.

This is a fine man who has the support of his media, which is pretty unusual for a pro-life Republican. He has the support of the bar down there. He has the support of Democratic women, as well as Republican women. He has the support of people who live religious lives. He has the support of his partners, many of whom are Democrats who don't agree with his personal views--although I think many would agree with his personal views. His personal views are legitimate, but there is room to disagree. But I don't know anybody of substance in Arkansas who thinks this man is unworthy to be on the Federal district bench, or thinks he will not obey the law when he gets on the Federal district bench, or thinks he will not uphold the law when he gets on the Federal district bench.

I could go through every argument that has been made and every one is not unanswerable but I think overwhelmingly answerable. It comes down to some statements he made a long time ago for which he has apologized, which he has said were insensitive. He was a young man dedicated to the pro-life movement and he made some insensitive statements, as some do on both sides in pro-life or pro-choice contingencies.

This man deserves a vote up or down. I hope he will receive that and I hope he will be confirmed. But those who vote against him, I think, are doing so without the consideration of the high qualities this man offers, and without the recognition of the many Democrats who have written in favor of him. Many pro-choice Democrats have written in favor of him. If we are going to debate, we should debate the facts, not distortions of the facts. He has apologized and made amends. He asked forgiveness for some of his remarks that were insensitive.

I hope around here we are not of the persuasion or opinion that everybody who comes to the Federal bench has to be perfect from the time they graduate from law school on, or even before

that, or because we differ with them on one or two positions that may be very important issues to one side or the other, they do not have a right to serve on the bench, or that there may be people of deeply held religious views who are unwilling to admit, because I think of some of the stereotypes around here, they can do a great job on the bench in spite of their religious views.

In this particular case, this man is a very religious man who has made it more than clear that he will abide by the law even when he differs with it. This is a trial judge position. This is not the Supreme Court. But it is an important position, and I compliment my colleagues on both sides for scrutinizing all of these judgeships. But if they scrutinize fairly this man's record and what he has done, his reputation, his ability in the law, and his honesty and decency, then they are going to have to vote for him. If my colleagues do not do that, then I suppose they can vote against him. If they do so, they really have not looked at the record, have not been fair, and they have allowed buzz issues that have long since been answered to take a precedent position in the arguments that should not be permitted.

Mr. President, I ask unanimous consent that the vote on the nomination of J. Leon Holmes occur at 5:45 p.m. today and the time be equally divided. I further ask that when the Senate begins consideration of the class action bill this evening, it be for debate only.

How much time remains?

Mr. President, I know the Senator from Illinois asked the question, Is this the best the White House can do? In all honesty, I think the people of Arkansas believe it is. The Democrat Gazette newspaper thinks it is. A lot of Democratic women who are law partners with this man think it is. I personally think it is a great nomination.

His record has been visibly distorted on the floor today. Let me take a few minutes to rebut some of the charges and arguments made by those opposing Mr. Holmes' nomination. Many of these were addressed in the morning in my opening statement and by others.

I refer my colleagues to the excellent statement made by the Senator who knows him best, our colleague from Arkansas--in fact, both colleagues from Arkansas, Senators Pryor and Lincoln. Senator Pryor worked with him and associated with him. Both he and Senator Lincoln support Mr. Holmes' confirmation.

It seems kind of specious to make the argument that nobody in their right mind would support this man. There is no doubt Mr. Holmes has taken a public stance on many issues while in private life. He had a right to do so as an American citizen. We encourage citizens to play a role in the democratic process. That is what Mr. Holmes has done.

We all can recognize abortion is a very divisive issue in this body about which many persons feel strongly. The issue today is not whether one view is right or wrong, but whether Mr. Holmes is able to set aside his personal views, whatever they may be, and act as a judge should act.

The American Bar Association says, by giving him the highest rating possible, that he is able to do that. His friends in Arkansas say he is. The newspapers say he is. The two Senators from Arkansas, both Democrats, say he is. Let me make a few points in this regard.

Some of the statements Mr. Holmes has made in the course of his activism are, without doubt, inflammatory. They were made 24 years ago when he was 27 years of age. To his credit, Mr. Holmes has apologized for his remark about rape which he made 24 years ago in the heat of the moment.

In response to a written question from Senator Durbin, he wrote:

I have to acknowledge that my own rhetoric, particularly

when I first became involved in the issue [of abortion] in

1980 and perhaps some years thereafter, sometimes has been

unduly strident and inflammatory. The sentence about rape

victims which was made in a letter to an editor in 1980 is

particularly troublesome to me from a distance of 23 years

later.

It was a year ago he wrote this answer.

Regardless of the merits of the issue, the articulation in

that sentence reflects an insensitivity for which there is no

excuse and for which I apologize.

He was 27 years old. He was an activist in the pro-life cause. He has apologized over and over. Can we not as adults accept his apology, or do we require everybody to be perfect from 27 years old or before and on?

In an April 11, 2002, letter to Senator Lincoln, Mr. Holmes explained in a similar manner.

In the 1980s I wrote letters to the editor and newspaper

columns regarding the abortion issue using strident and harsh

rhetoric. I am a good bit older now and, I hope, more mature

as I was at the time. As the years passed, I came to realize

that one cannot convey a message about the dignity of the

human person, which is the message I intended to convey,

using that kind of rhetoric in public discussion.

Referring directly to his 1980 ``snow in Miami'' remark--which has been more than plastered all over this place today in spite of the case we made that the remark was made years ago when he was a young man, and he has more than prostrated himself in asking for forgiveness--he said:

I do not propose to defend that sentence--

The sentence about ``snow in Miami''--

and I would not expect you or anyone else to do so.

Based upon this letter and the level of support Mr. Holmes enjoys in Arkansas, Senator Lincoln reaffirmed her belief that Mr. Holmes will be a fair judge, and so do the people of Arkansas and anybody who knows him.

I share Senator Lincoln's views. The fact that Mr. Holmes recognizes his words in the past were sometimes strident and insensitive suggests to me he has undergone a maturation process for which he is given no credit by the perfect people here in the Senate who are so willing to sit in judgment on statements made by 27-year-olds. I wonder how they would fare if all of their 27-year-old statements were used to determine whether they could sit in the Senate.

Mr. Holmes was questioned by my Democratic colleagues on many of the issues they raised today. I thought his answers were very responsive, and I want to review them today so there is no further distortion of his record, because we have had plenty of that today.

In response to another question by Senator Durbin, which was whether Mr. Holmes, as a judge, would restrict the rights granted by Roe v. Wade, Mr. Holmes responded:

The judge is an instrument of the court and hence the law.

Thus, the judge's personal views are irrelevant. Roe v. Wade

is the law of the land. As a judge, I would be bound by oath

to follow that law. I do not see how a judge could follow the

law but restrict the rights established by that law.

I do not know what more he has to say to show good faith, but he surely said it there. In response to the question, ``Do you believe in and support a constitutional right to privacy?'' Mr. Holmes responded:

I recognize the binding force of the court's holding in

Griswold and Eisenstadt recognizing a right to privacy. I

have never engaged in political activity directed toward

overturning the result obtained in Griswold or Eisenstadt. If

I am confirmed by the Senate, I would follow the rulings of

the Supreme Court.

What do my colleagues need? Senator Leahy implied Leon Holmes has had some kind of confirmation conversion. That is the usual bullcorn that happens on the floor from time to time, especially with regard to judicial nominees.

I note that the overwhelming evidence, based on his own actions and letters of support, is Mr. Holmes is a man who respects the rule of law and is a man of integrity and will follow the law. His colleagues say that. His women colleagues say that. People who differ with him personally on his views say that. They say he will respect the law and follow it.

Mr. Holmes is not nominated to the Supreme Court where the Justices, such as Justice Thomas, Justice O'Connor, or other Justices, are required to review and sometimes vote to overturn previous decisions. Mr. Holmes, as a district court judge, is bound by the Supreme Court and the appellate court determinations and precedents.

I also heard some criticism that was raised by Senator Feinstein from California that Mr. Holmes placed the Roe v. Wade decision in the same category as Dred Scott and Buck v. Bell, as Supreme Court decisions with which he disagrees. If he has, he has millions of Americans who also disagree with those three decisions, and I am one of them myself.

Let me give the full and complete answer of Mr. Holmes on this issue. He stated:

In my view, each of these decisions failed to respect the

dignity and worth of the human person. As a judge, I would

follow every decision of the Supreme Court that has not been

subsequently overruled.

Even though he disagrees with Roe v. Wade, he will uphold it. I do not know when this business of not believing people on this issue started to take place, but it started back around the time of Justice Rehnquist's nomination, and it has been coming every year. And they say they do not have a litmus test. Give me a break.

One can disagree with Mr. Holmes' personal views, but one cannot credibly argue that he does not respect the supremacy of the laws laid down by the Supreme Court. Everything the man stands for says that.

Let me quickly turn to a few other issues raised today. I have already addressed the issue regarding the charge that Mr. Holmes is antiwomen. The article he wrote with his wife--both of them wrote it-- was to discuss their fervent belief in Catholic teachings regarding relationships. It was written for his religious peers in the Catholic faith, published in a religious document. It was not a statement of his legal views.

A fair reading of the article would show a support for the equality of women. I have read it a number of times. And by the way, if it comes down to a choice between St. Paul and my distinguished friend from Massachusetts, Senator Kennedy, or my distinguished friend from Illinois, Senator Durbin, I think I will take St. Paul every time, and I think most everybody else in the country would, too. He and his wife were quoting St. Paul.

We have even had some indications that St. Paul was out of whack. Not according to the Bible, in which I think most of us claim to believe. I will choose St. Paul every time. By the way, the article is why only males in the Catholic Church hold the priesthood. If one reads it fairly, that is what he was driving home. If one reads it fairly, one will find he was very fair to women and treated them equally, as his partners. Democratic women in his law firm whom he mentored and tutored and helped and worked with and works with today have testified through letters to us that they trust him, believe in him. Even though they differ with his views in some matters, they know he will follow the law because they know he is devoted to the law.

We ought to be able to give some credibility to people of that quality who get the highest possible rating by the American Bar Association. That is not always totally dispositive, I have to admit, but it certainly adds to the belief of those of us who support this man and the Democrat people down there who also support him. Mr. Holmes enjoys the support of numerous women in Arkansas, including coworkers and colleagues who know him best.

There is a charge against Mr. Holmes. Holmes does not have the temperament to be a Federal judge, some have said. He has said that rape occurs with the same frequency as snow in Miami and compared abortion to the Holocaust.

He has openly apologized for his 27-year-old rhetoric:

The sentence about rape victims which was made in a letter

to an editor in 1980 is particularly troublesome to me from a

distance of 23 years later.

He goes on to say:

Regardless of the merits of the issue, the articulation in

that sentence reflects an insensitivity for which there is no

excuse and for which I apologize.

That is a written response to Senator Durbin. We cannot take his word for that? He was 27 years old, a fervent believer in the pro-life cause. Arkansans holding strong pro-choice views uniformly attest that Holmes will set aside any personal beliefs and follow the law while on the bench.

Holmes' ``well-qualified'' rating shows he is at the top of the legal profession in his legal community. He has outstanding legal ability, but listening to the arguments today, one would think he is a total malcontent who does not believe in the law. He has a breadth of experience and the highest reputation for integrity. He has demonstrated or exhibited the capacity for judicial temperament.

There is a charge that Holmes does not believe in the separation of church and State. He said this:

Christianity in principle cannot accept subordination to

the political authorities,

for the end to which it directs men is higher than the end of

the political order.

That is what they say. He quoted him, so he must not believe in the separation of church and State. But what did he say? Holmes was contrasting Christianity with the pagan religions about which Aristotle wrote in which religious activities are political concerns. The speech makes the point that Christianity looks to an ultimate source of authority beyond Earthly authority, and that is God.

I mean, give him a break.

Holmes notes that the model of assigning religious and political matters to separate spheres is favored by modern liberalism, including John Locke, Thomas Jefferson, and Alexis de Tocqueville, and the modern Catholic Church. He urges us not to miss the strengths of de Tocqueville's argument that the church is stronger when separate from the State. Holmes offers his own theological grounds for the separation of church and State, and yet one would think he was not.

Another charge is that Holmes is unwilling to recuse himself from cases involving anti-abortion organizations or abortion matters. He has pledged that:

In any case in which litigants were concerned about my

fairness and impartiality, or the appearance of impropriety,

I would take those concerns seriously. I would follow 28

U.S.C. Section 455 and the Code of Conduct for United States

Judges when making recusal decisions.

He would follow the law. He will abide by the same standards of conduct that govern every Federal judge.

Since the issue of natural law has been raised in discussing Mr. Holmes' nomination, I want to set the record straight.

Some have expressed concern that Mr. Holmes seems to be a believer in natural law and will allow those beliefs to influence his rulings on the bench. The facts show otherwise.

When asked if he believes that the Declaration of Independence establishes or references rights not listed or interpreted by the Supreme Court to be in the Constitution, Mr. Holmes wrote:

I do not believe the Declaration of Independence

establishes judicially enforceable rights.

Instead, he wrote:

The Constitution as a whole is aimed at securing the rights

described as unalienable by the Declaration of Independence.

Mr. Holmes noted that:

Working all together, the entire system of government

should . . . result in a free country, a country without

tyranny, which, in the terms that the founders used, is

equivalent to saying a country in which natural rights

generally are respected.

Mr. Holmes, however, cautions:

[T]here is no constitutional authority for the courts to

use the Declaration of Independence to overrule the

Constitution. The authority of the courts is granted by the

Constitution, not the Declaration.

He also wrote:

No one branch of government can appeal to natural rights as

a basis for exceeding or altering its authority under the

Constitution.

Rather, he writes:

[w]hen citizens believe that natural rights are not

safeguarded adequately by the present system of government,

they may express that view in the electoral process, or they

may seek to amend the Constitution pursuant to Article V.

Mr. Holmes has demonstrated, and his record demonstrates, that once he dons the robes of a judge, he will set aside those beliefs and follow the law as it is stated. Mr. Holmes understands key differences between an advocate and a judge, and that personal views play no role in the duty of a judge to abide by stare decisis and apply the precedent of the Supreme Court and Eighth Circuit. For those reasons, I believe that Mr. Holmes will make an outstanding Federal district judge.

I close by yielding my last few minutes to Senator Pryor, a Member of the Senate who knows Mr. Holmes the best. I believe we ought to listen to the Senator from Arkansas.

I ask for the yeas and nays.

Mr. President, I rise today to express my strong support for the Class Action Fairness Act of 2004, which is now renumbered S. 2062, to accommodate the bipartisan compromise we reached last November with Senators Dodd, Schumer, and Landrieu. This improved bill embodies a carefully balanced legislative solution that responds to some of the most outrageous abuses of the class action litigation device in some of our State courts.

As anyone who has read the bill knows, it restores fairness to the class

action system. Among other things, it eliminates the opportunity that exists in the current system for unscrupulous lawyers to profit by victimizing injured parties with sham settlements. It takes away the opportunity for those lawyers to use the system to extort legitimate businesses for their personal financial gain.

Throughout the years, Congress has received powerful evidence showing an extraordinary concentration of large interstate class action lawsuits in a handful of outlier State courts--certain county courts, to be precise. The evidence further shows these outlier courts operate in a manner that deprives the rights of truly injured individual plaintiffs, as well as defendants. In too many cases, the families have fallen prey to the manipulation, and in some cases outright evasions, by certain plaintiffs' lawyers of the settled rules supposed to ensure basic fairness during the major interstate class action disputes. Too often, judges approve settlements that primarily benefit the class action attorneys rather than the injured class members.

Indeed, it has become all too common for certain State courts to approve proposed settlements where class members receive little or nothing of value, such as meaningless coupons, while their attorneys rake in millions of dollars in fees.

It is one of the new games in litigation practice in America. It is a disgrace caused by a relatively small few in the legal profession but enough to make it a matter of great concern. This bill would clarify and solve some of these problems.

To make matters worse, multiple class action lawsuits asserting the same claims on behalf of the same plaintiffs are routinely filed in different State courts, thus creating judicial inefficiencies and encouraging collusive settlement behavior. Unfortunately, the injuries caused by these abuses are not confined to the parties who are named in the class action complaint. Rather, they extend to everyday consumers who unwittingly get dragged into these lawsuits as unnamed class members simply because they purchased a cell phone, bought a box of cereal, drove a car fitted with a certain brand of tires, or rented a video. What we are talking about is a system that impacts the vast majority of people who live in this country, not only lawyers and some businesses, as some have wrongly suggested.

We are talking about people such as Irene Taylor of Tyler, TX, who was cheated out of approximately $20,000 in a telemarketing scam that defrauded senior citizens out of more than $200 million.

This is a picture of Irene Taylor. In a class action brought in Madison County, IL, the attorneys purportedly representing Ms. Taylor negotiated a proposed settlement which excluded her from any recovery whatsoever.

We are talking about people such as Martha Preston of Baraboo, WI, as evidenced by this picture of her. Martha was involved in the infamous BancBoston case, brought in Alabama State court, which involved the bank's alleged failure to post interest to mortgage escrow accounts in a prompt manner. Ms. Preston received a settlement of about $4. Approximately $95 was deducted from her account to help pay the class action fees of $8.5 million.

This is the Bank of Boston chart, a perfect illustration of class action abuses going on in this country as we speak. A Bank of Boston settlement over disputed accounting practices produced $8.5 million in attorneys' fees--costing the class members as much as $95, which was deducted from their accounts. The plaintiffs' attorneys in this case later sued class members for an additional $25 million. I do not care who you are, you have to say that is outrageous.

Ms. Preston testified before the Judiciary Committee 5 years ago asking us to halt these abusive class action lawsuits, but it appears that, at least so far, her plea has fallen on very deaf ears.

Class action abuses are far-reaching, so far-reaching that they affect nonconsumers as well. Take, for instance, Hilda Bankston, a hard-working American, shown in this picture, who came to this country seeking to fulfill the American dream. Hilda found that instead of reaping the rewards that normally come with hard work, she was unmercifully dragged into hundreds of lawsuits filed by personal injury lawyers in the State of Mississippi. Why? She owned the only drugstore in Jefferson County--a county known for hosting one of the most notorious magnet courts in the country.

Her small business became a prime target for forum-shopping personal injury lawyers in pharmaceutical cases, not because her business committed acts of negligence, and certainly not because her business had deep pockets to pay a large jury award or a lucrative settlement. To the contrary, they were sued, in this particular case, for the sole purpose of evading Federal court jurisdiction so the class action lawsuit could remain in State court.

Why would personal injury lawyers go to such trouble to keep a class action in State court? Because unlike our Federal courts which have judges who are insulated from political influence through lifetime appointments, many State court judges are elected officials who answer through the political process itself.

Even though Ms. Bankston no longer owns the drugstore, she continues to be named a defendant in these lawsuits today and is buried under a mountain of discovery requests because of the litigation. On a more personal level, Ms. Bankston told us about how this ordeal has affected her both personally and professionally. She testified that:

[N]o small business should have to endure the nightmares I

have experienced. . . . I have spent many sleepless nights

wondering if my business would survive the tidal wave of

lawsuits cresting over it.

Critics have argued the Senate should vote this bill down because it amounts to nothing more than special interest legislation. These critics are dead wrong and stand in desperate need of a reality check. To be perfectly clear, it is because of the wrongs committed against everyday American consumers such as Irene Taylor and Martha Preston that the time has come for the Senate to pass class action reform. It is because of the victimization of innocent people like Hilda Bankston that the Senate needs to act now, and it is because of the public's collapsing confidence in our civil justice system that we need to pass this bill without further delay. Arguments being raised to the contrary are red herrings that distort the real truth of the matter. The class action problem is real and significantly affects the general public.

The Class Action Fairness Act represents a modest and balanced solution to the class action problems. There are two core features to the legislation.

First, the bill implements consumer protections against abusive settlements by, No. 1, valuing attorneys' fees in coupon settlements to those coupons that are actually redeemed by class members; No. 2, providing a standard for judicial approval of settlements that would result in a net monetary loss to plaintiffs; No. 3, prohibiting settlements that favor class members based upon geographic proximity to the courthouse; and, No. 4, requiring notice of class action settlements be sent to appropriate State and Federal authorities to provide them with sufficient information to determine whether the settlement is in the best interest of the citizens they represent.

Second, the bill corrects a flaw in the current Federal diversity jurisdiction statute so the class actions with a truly interstate impact are adjudicated where they originally should be adjudicated, and that is in our Federal courts. Specifically, S. 2062 amends the diversity of citizenship jurisdiction statute to allow larger interstate class actions to be adjudicated in Federal court by granting original jurisdiction in class actions where there is ``minimal diversity'' and the aggregate amount in controversy among all class members exceeds $5 million.

The bill also balances the States' interest in adjudicating local disputes by providing that class actions filed in the home State of the primary defendants remain in State court subject to a triple-tiered formula that looks at the composition of the plaintiffs' class membership. This formula become known as the Feinstein compromise, which we were able to reach with Senator Feinstein during the Judiciary Committee markup on the bill.

Moreover, after negotiations with Senators Dodd, Schumer, and Landrieu last November, we were able to reach consensus on further refinements that allow truly local disputes

involving principal injuries within the forum State to be adjudicated in the State courts.

Now that I have summarized what the bill does, let me explain what it does not do. First, this bill does not eliminate all State court class action litigation. Class action suits brought in State courts have proven in many contexts to be an effective and desirable tool for protecting consumer rights, nor do the proposed reforms in any way diminish the rights or practical ability of victims to band together to pursue their claims against large corporations. In fact, we have included several consumer-protection provisions in our legislation that I believe will substantially improve plaintiffs' chances of achieving a fair result in any proposed settlement.

My summary of the bill should not come as a surprise to anyone here because these reform efforts have an extensive history in this body. Most importantly, this bill maintains strong support from several Members on the other side of the aisle. In this regard, I extend a special thanks to Senators Carper, Kohl, and Miller for their tireless efforts in pushing for class action reform. Their commitment has helped us to get where we are today with this bill, and I look forward to their efforts in the coming days to keep the focus on passing this much-needed compromise legislation without becoming mired in extraneous amendments.

I also thank my colleagues--Senators Schumer, Dodd, and Landrieu--for working with us in good faith to build a stronger bipartisan consensus for this bill. As you may know, we fell one vote shy of invoking cloture, on getting 60 votes, last year. These three Members, who originally voted against the bill presented us with a detailed list of issues they wanted resolved before they could support class action reform legislation. After extensive discussions last November, we responded in good faith to each and every concern they raised by making the appropriate changes that are now embodied in S. 2062.

I look forward to continuing the good faith that was displayed last November as we proceed on this bill.

Opponents of this legislation would, no doubt, like to derail it by bogging it down in the amendment process. I look to the leadership of my Democratic colleagues who have worked with me on getting this legislation to where it is, and to others who are serious about ending the victimization of American consumers, to do all they can to prevent this from happening.

Above all, I look to the leadership of Senator Grassley, who was the original sponsor of this bill and who deserves a lot of credit for having fought this bill through in such a magnificent way through all of these years. He is a gutsy guy. He stands for what he believes. He deserves a lot of the credit for this bill.

In the coming days, I fully expect that some Members will offer numerous amendments to the bill, many of which will have nothing to do with the subject of class action. Look, we know this bill is going to be used as an attempt to bring up all kinds of political amendments for the purpose of scoring political points. I wish my colleagues wouldn't do that on a bill this important. Naturally, some of them want to adopt some of these amendments so they can kill this bill. Others just want a shot at making Senators vote on political issues that they think will be embarrassing to them. I would hope we would concentrate on the bill because it is important, and if there are legitimate amendments, certainly we will give every consideration to them.

While I understand the desire to follow regular order, I would like to note that this bill rests on a delicate bipartisan compromise that at least on paper commands a supermajority of votes--beyond 60--to overcome a Democratic filibuster. But with each controversial measure added to this bill, we all know it is less likely to become law. That is after 5 years of very hard work and an agreement by 62 Members of this body who have signed on to this bill up front to see that it passes. As such, I urge my colleagues, especially those who have supported class action reform, to limit and oppose amendments so we can move an important bipartisan measure through the Senate.

Again, while I expect opponents of this bill to do everything in their power to gut and weaken the bill, I trust that my Democratic colleagues who support class action reform will remain faithful to the bipartisan deal by vigorously opposing these amendments that will likely be offered in the coming days. That is what we do when we agree to a settlement. We agree to work to stop all poison pill amendments, and we agree to work to stop amendments that those who made the agreement to begin with do not agree with.

Class action reform is long overdue, and it is now time for us to act. We have considered legislation for many years now, and the pattern of abuse has become clear. What once began as an occasional outrageous class action settlement has now become a routine occurrence. There are jurisdictions in this country, State jurisdictions and local jurisdictions, that border on corruption, that literally don't care what the facts are, don't care what the law is. They are just going to give the plaintiffs' attorneys whatever they want. The plaintiffs' attorneys have caught on to it, so they forum shop to these outrageous jurisdictions so they can get judgments and verdicts far beyond what they could ever get in a jurisdiction that treated the law with respect.

The legislation we are considering would fix all of these problems. I would consider it a shame if we allowed partisan politics to kill much- needed reform of the abuses in the current system, abuses that are actually hurting those in the system we are supposed to help.

This is an important bill. We have worked long and hard to get to this point. I hope with all my heart that our colleagues on both sides will live up to the commitments they have made and that we can pass this bill and solve some of these terrible problems.

I yield the floor.

Mr. President, Section 3 of the ART Act establishes a new provision of Title 18 entitled, ``Unauthorized Recording of Motion Pictures in a Motion Picture Exhibition Facility.'' I ask Senator Cornyn, what is the purpose of this provision?

I have heard it said that this bill could be used against a salesperson or a customer at stores such as Best Buy or Circuit City if he or she were to point a video camera at a television screen showing a movie. Is this cause for concern?

Does the Senator from California agree with our colleague from Texas?

I have also heard some say that this statute could be used to prosecute someone for camcording a DVD at his home. Is this a fair concern?

Do the users of hearing aids, cell phones or similar devices have anything to fear from this statute?

It appears that there is no fair use exception to this provision. Is that correct?

Does the Senator from Texas agree?

Mr. President, I ask unanimous consent that floor privileges be extended to the following staffers for the duration of debate on S. 2062: Harold Kim, Kevin O'Scannlain, Ryan Triplette, Brendan Dunn, Levi Smylie, and Kevin Madigan from the Judiciary Committee.

Madam President, I rise today to support passage of S. 2192, the Cooperative Research and Technology Enhancement Act of 2004 or CREATE Act. I am pleased that the Senate is considering this important patent legislation. I would like to thank Senators Leahy, Kohl, Grassley, Feingold and Schumer, for their work on, and cosponsorship of, this bill.

The CREATE Act responds to an important need of our inventive community. This act will encourage greater cooperation among universities, public research institutions and the private sector. It does so by enabling these parties to share freely information among researchers that are working under a joint research agreement to develop new technology. It also allows these entities, particularly universities, to structure their relationships with other research collaborators in a more flexible manner.

The CREATE Act has benefited significantly from the commendable work of our colleagues in the House. In particular, we take note of the House Report, H. Rep. 108-425, which accompanied passage of H.R. 2391, the House counterpart of S. 2192. The committee notes that the House report addresses a number of important issues related to the implementation of the act, and provides necessary guidance to the Patent and Trademark Office as to its responsibilities under the legislation.

In the interest of further transparency and guidance, and importantly to prevent the public from being subject to separate enforcement actions by owners of patentably indistinct patents, we offer the following guidance on some key aspects of this legislation. We believe that this guidance is entirely consistent with the policy objectives of the House Report, but explicate some of the most critical and complex aspects of the intended operation of the CREATE Act where multiple patents issue on the patentably indistinct inventions.

As the House report correctly notes, the CREATE Act will enable different parties to obtain and separately own patents with claims that are not patentably distinct--in other words, where the claim in one patent would be ``obvious'' in view of a claim in the other patent. The courts and the U.S. Patent and Trademark Office term this ``nonstatutory'' and ``obviousness-type'' double patenting. This is not the first time that Congress has amended the patent laws in a manner that has expanded opportunities for double patenting. The Patent Law Amendments Act of 1984 first created the opportunity for double patenting for patents issued to different inventors that were owned by one entity or which were commonly assigned. In the legislative history for the Patent Law Amendments Act of 1984, Congress indicated its expectation that any newly created opportunities for double patenting would be treated no differently than double patenting for patents issued to the same inventor. We do the same today with respect to the remedial provision in the CREATE Act, but discuss

the form of disclaimer that is required of the patent owner whenever double patenting exists.

At its core, the double patenting doctrine addresses the situation where multiple patents have issued with respective claims in the different patents that meet one or more of the relationship tests set out by the courts. Double patenting can arise when the two involved patents are determined not to relate to independent and distinct inventions. It can also arise if a claim in a later-issued patent would not be novel with respect to a claim in a first-issued patent. A third type of double patenting--and perhaps the most common--is where a claim in a later-issued patent is obvious in view of a claim in a first- issued patent. Whatever the relationship that forms the basis for the double patenting, the current principles governing double patenting should be applied to all such situations involving the issuance of double patents where the provisions of the CREATE Act apply.

The double patenting doctrine exists as a matter of policy to prevent a multiplicity of patents claiming patentably indistinct inventions from becoming separately owned and enforced. Thus, it applies to situations where multiple patents have issued, even if the patents are filed on the same day, issue on the same day and expire on the same day. All that is required for double patenting to arise is that one or more claims in each of the involved patents is determined to represent double patenting under established principles of law. The double patenting doctrine can invalidate claims in any later or concurrently issued patent if those claims are determined to represent double patenting with respect to any of the claims in a first-issued patent. For clarity, any later or concurrently issued patent that creates double patenting can simply be termed a ``patentably indistinct patent'' with respect to the first-issued patent.

Invalidity of the patentably indistinct claims under the doctrine of double patenting can be avoided, however, if an appropriate disclaimer is filed in the patent containing those claims. Under existing practice in the U.S. Patent and Trademark Office, the disclaimer must be filed in the patent with the patentably indistinct claims and must reference the first-issued patent against which the disclaimer applies. Thus, the disclaimer only affects the ability to enforce the disclaimed patent, and historically has not affected the enforceability of the first- issued patent against which the disclaimer has been made. Accordingly, under existing double patenting principles, if the indistinct patent becomes separately owned, i.e., such that it can be separately enforced, the disclaimed patent is rendered invalid in accordance with the terms of the required disclaimer, while the first-issued patent's enforceability is unaffected.

Patents issued after enactment of the CREATE Act will be enforceable in the same manner and to the same extent as when patents are issued to a common owner or are subject to common assignment. One modification of existing disclaimer practice, however, is needed for double patenting to achieve its policy objectives where the CREATE Act applies. The CREATE Act will now permit patents with patentably indistinct claims to be separately owned, but remain valid. Heretofore, this separate ownership would have rendered the indistinct patent invalid. To protect the public interest, these separately owned patents must be subjected to a new form of disclaimer that will protect the public against separate actions for enforcement of both the first-issued patent and any patents with claims that are not patentably distinct over the claims of the first-issued patent.

Accordingly, in every situation where double patenting is created based upon revised section 103(c), the patentably indistinct patent must include a disclaimer that will require the owner of that patent to waive the right to enforce that patent separately from the first-issued patent. The disclaimer also must limit, as is required for all disclaimers related to double patenting, the disclaimed patent such that it can be enforced only during the term of the first-issued patent.

Additionally, the disclaimer required for the valid issuance of a patentably indistinct patent pursuant to the CREATE Act must apply to all owners of all involved patents, i.e., the owner of the patentably indistinct patents as well as any owners of any first-issued patents against which the disclaimer is made. In order for this to be the case, the CREATE Act effectively requires parties that separately own patents subject to the CREATE Act to enter into agreements not to separately enforce patents where double patenting exists and to join in any required disclaimer if the parties intend to preserve the validity of any patentably indistinct patent for which a disclaimer is required.

To give effect to this requirement, the disclaimer in the patentably indistinct patent must be executed by all involved patent owners, as the right to separately enforce the first-issued patent apart from the patentably indistinct patent cannot be avoided unless the owner of the first-issued patent has disclaimed its right to do so. If an enforcement action is brought with respect to a patentably indistinct patent, but the owner of the first-issued patent was not a party to the disclaimer, and had not disclaimed separate enforceability of the first-issued patent once an enforcement action had been commenced on the indistinct patent, the owner of the first-issued patent could not legally be prevented from bringing a later action for infringement against the same party absent disclaiming the right to do so. Thus, the disclaimer of the separate enforceability of an indistinct patent cannot be assured unless the owner of a second indistinct patent has an agreement with the owner of the first-owned patent prohibiting the right of separate enforcement. The CREATE Act will not require the owner of a first-issued patent or an indistinct patent to enforce any such patent. Rather, the prohibition against separate enforcement described above is necessary to address the sole policy objective of preventing different patent owners from separately enforcing a first- issued patent and a related indistinct patent.

Also as indicated in the House report, we expect the U.S. Patent and Trademark Office to take such steps as are necessary to implement the requirements of this act in the manner we have described. In particular, the Patent and Trademark Office should exercise its responsibility for determining the necessity for, and for requiring the submission and recording of, disclaimers in patent applications and to promulgate such regulations as are necessary including, inter alia, rules analogous to 37 CFR Sec. 1.321, that requires disclaimers in patent applications where double patenting exists. To meet the requirements of the act, the parties to the joint research agreement must agree to accept the conditions concerning common term and the prohibition against separate patent enforcement and all involved parties must agree to be signatories to any required terminal disclaimer. I do not believe any particular form need be followed to give effect to this requirement, and that the Office will address these issues pursuant to its implementation of the act.

The House indicated in its committee report that a joint research agreement may be evidenced by one or more writings. I note that evidence of a joint research agreement may take the form of cooperative research and development agreements, CRADAs, material transfer agreements MTAs, or other written contracts or multiple written documents or contracts covering various parties or aspects of the written agreement. As the House Committee indicated in its report, such writing or writings must demonstrate that a qualifying ``joint research agreement'' existed prior to the time the claimed invention was made and that the claimed invention was derived from activities performed by or on behalf of parties that acted within the scope of the agreement. Also, parties to a joint research agreement who seek to benefit from the Act must be identified in the application for a patent or an amendment thereto so the public will have full notice of those patents that have issued pursuant to the provisions of this Act.

As the House Judiciary Committee also noted in its report, the act, pursuant to section 3 of the act, pending patent applications could claim the benefit of the provisions of the act. Thus, an existing joint research agreement

existing prior to the date of enactment can be used to qualify an application to claim the benefits of the act. Such applications, i.e., those pending on the date of enactment of the act, however, must comply with all of the requirements of the Act, including not only the requirements for disclosure among the parties to the agreement, but also the applicable requirement for a terminal disclaimer. The terminal disclaimer obligations, i.e., that all parties to the joint research agreement consent to having any related patents the first-issued patent and patentably indistinct patents, be bound by the requirements of the Act and the disclaimer be executed by all the owners of such patents, shall provide a means for the U.S. Patent and Trademark Office to confirm that each party to an otherwise eligible joint research agreement that is cited to claim the benefits for an application pending as of the date of enactment of the act has consented to have the act so apply to that application. Thus, associated with any patent application pending on the date of enactment of the act, there will be written evidence of an agreement of the parties to the joint research agreement to affirmatively claim the benefits of, and to be bound by the requirements of, the CREATE Act, by the act of the parties to the joint research agreement recording evidence of their agreement in the same manner as evidence of documents that affect some interest in an application or patent are now recorded with the Patent and Trademark Office.

Before I yield, I would like to thank the cosponsors and their respective staffs for their work on this legislation. In particular, I commend Susan Davies, Jeff Miller, Dan Fine, Dave Jones, and Tom Sydnor for their hard work on this issue. Also, I extend my heartfelt gratitude to Katie Stahl for her hard work on this, and numerous other issues. I was informed today that she will be leaving the Judiciary Committee staff in a couple of weeks, and I want to take this opportunity to acknowledge publicly how sorely she will be missed.

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

Mr. President, I ask that the Senate now proceed in executive session to consider Executive Calendar Nos. 591 and 604 as provided under the previous order.

I do not intend to take all of our time, and I hope the other side will not take all of its time.

I rise to support the nomination of Justice Diane S. Sykes to the Seventh Circuit Court of Appeals, and to urge my colleagues to support her. There is no doubt that she is well prepared to join the Federal bench. A graduate of Marquette University School of Law, Justice Sykes served as a law clerk to the Honorable Terrence T. Evans in the Eastern District of Wisconsin. As a litigator in private practice, she specialized in civil litigation in State and Federal court.

Justice Sykes will bring almost 12 years of judicial experience to the Seventh Circuit. Since 1999, when she was appointed by Governor Tommy Thompson to fill a mid-term vacancy, she has served on the Wisconsin Supreme Court. She won election for a ten-year term on the court in 2000 with 65 percent of the vote. Judge Sykes appealed to so many of her State's voters because she is a careful, qualified jurist and not an activist.

Before coming to the Wisconsin Supreme Court, Justice Sykes served as a trial judge on the Milwaukee County Circuit Court, winning election to a 6-year term in 1992. Prior to her service as a State judge, Justice Sykes practiced commercial litigation for 7 years at one of Wisconsin's most prestigious law firms. She also clerked for Judge Evans, district judge for the Eastern District of Wisconsin after her graduation from Marquette University Law School.

Not surprisingly, the ABA rated her well-qualified for appointment to the Seventh Circuit. She has also received broad support, including that of both Wisconsin Senators.

Despite her strong credentials and the level of support she enjoys, there continues to be some misinformation and distortions regarding her record. First, of course, is the suspicion by some that she might be pro-life and thus presumptively unqualified for service on the Federal bench. Opponents cite one 1993 case on which she ruled while she served as a county judge in Milwaukee. She was then accused of declaring admiration for pro-life protestors and issuing jury instructions favorable to those protestors.

The Milwaukee newspaper that printed these accusations issued a formal retraction and apology less than a month later. The apology noted, among other things, that the language of Justice Sykes' jury instruction was specifically recommended for use by the Wisconsin Criminal Jury Instructions Committee, and was used by judges throughout the State. The apology further noted that Justice Sykes sentenced the protestors to \2/3\ of the maximum sentence permitted by law. The record is clear that Justice Sykes, during sentencing, stated ``whether you

like it or not, [an abortion clinic] is a legal, legitimate business, and it has the same right to be free from interference of this sort as any other business.''

Justice Sykes also clarified, in answers to written questions that ``my favorable comment about the goal [those] defendants sought to achieve was a reference to their underlying goal of reducing the number of abortions, as is clear from the following statement from my sentencing remarks: `I think that people on both sides of the abortion issue would probably agree with you that reducing the number of abortions in this country is a desirable goal.' My sentencing remarks also reflect extensive consideration of the seriousness of the offense and criticism of the defendants' conduct and tactics. . . [A]nd the 60-day jail sentence I imposed, at two-thirds of the maximum, could not be characterized as unduly lenient or a `validation' of the defendants' beliefs.''

I hope it is not the argument of those who are concerned about Judge Sykes that any judge who at any time suggests that fewer abortions is a desirable goal is disqualified from the Federal judiciary.

I know also that some Senators are concerned about some of Justice Sykes' other answers to post-hearing written questions. A careful reading of her answers will show that Justice Sykes answered her written questions as completely and accurately as the Wisconsin Code of Judicial Conduct allows. Specifically, Wisconsin Supreme Court Rule 60.06(3) prohibits sitting judges from engaging in extra-judicial commentary with respect to particular cases or legal issues that would appear to commit the judge in advance or suggest a promise or commitment of a certain course of conduct regarding particular cases or legal issues. As her answers point out quite eloquently, ``there is a range of opinion in the legal community regarding the scope of so- called `commitments' clauses in judicial ethics codes. To the extent that [others] disagree, I must keep my own counsel and abide by my interpretation of the obligations of my oath, the duties of my office, and the requirements of the Code, which are binding on me.''

In those same written questions Justice Sykes was asked whether she believed that the Supreme Court's decisions in Roe and Griswold constituted ``judicial activism'', whether they were ``unprincipled'' and whether they were consistent with ``strict constructionist'' philosophy.

Justice Sykes avoided criticizing these cases out of a good faith belief that to do so would violate her ethical obligations under Wisconsin law. Her answers followed the same path as at least four of President Clinton's Circuit Court nominees who refused to give their personal views or criticize Supreme Court precedent on various issues, precisely because those issues might come before them as sitting judges.

Justice Sykes did state as follows: ``I can unequivocally state, however, that I believe that Roe and Miranda are the law of the land, and if I am confirmed to the Seventh Circuit, I would be duty bound to follow and would follow these and all other precedents of the United States Supreme Court.'' She further stated that she believes ``that Roe and Griswold constitute binding precedent,'' which she would follow ``without hesitation'' if confirmed to the Seventh Circuit.

Justice Sykes has also been labeled as pro-prosecution and anti- Miranda, implying that she would not be a fair judge. Contrary to the misrepresentations of her opponents, she has often ruled in favor of criminal defendants in Fourth Amendment and other cases involving questions of constitutional criminal law, siding against government actors many times. Justice Sykes' real record shows that she reaches outcomes by applying the law to the facts, as she should.

For example, in the State v. Knapp case, Justice Sykes agreed with the majority in a case involving a custodial interrogation that the statements made by a suspect in custody were not in compliance with the dictates of Miranda and could not be used by the prosecution against him. In the State v. Church case, she overturned an increased sentence of an individual convicted of criminal assault, concluding that the increased sentence was presumptively vindictive, in violation of the defendant's right to due process, and that the presumption was not overcome by adequate, objective new factors in the record justifying the increase.

Also, in the State v. Schwarz case Justice Sykes ruled in favor of a probationer in a Fifth Amendment case because his probationary officer during offender treatment compelled him as a condition of probation to admit to the crime of which he was convicted. She specifically held that a probationer cannot be compelled to admit to the crime of conviction before the time for a direct appeal has expired or an appeal has been denied because the Fifth Amendment privilege extends to those already convicted, whether in prison or on probation.

There is another argument against Justice Sykes which I have heard, regarding her dissent in State v. Carlson, which needs to be set straight. She stands accused of improperly finding harmless error in a trial court's seating of a non-English speaking juror in a criminal case. At first blush this does seem like harmful, not harmless, error. Again, a careful reading of her response to this issue illuminates the truth of this matter. She clarified that there was significant evidence in the trial court record that the juror in question did understand English. He had lived in the country for 20 years and passed a citizenship test. He held a driver's license and a fishing license. He was employed as a factory worker, where presumably he had to comply with various State and Federal safety procedures, and he had previously testified, without an interpreter, at a post-conviction hearing. Justice Sykes stated, properly, that ``when there is competing evidence, it is the job of the trial court--not the appellate court--to evaluate and weigh it, and make findings of fact. . . . Under well- established rules of appellate review, factual findings of the trial court are reviewed deferentially, and are not disturbed unless clearly erroneous, that is, factually unsupported. . . . The majority in Carlson disregarded this deferential standard of review and substituted its own view of the facts for that of the trial court; it was this failure to follow the applicable legal standard that I objected to in my dissent.''

I thought we all wanted judges who understand their role and not pursue an activist agenda. I think we should be pleased that a nominee to a Federal appellate court properly understands her appellate role. It is quite unfortunate that some would misrepresent Justice Sykes' principled dissent in this case as evidence of activist tendencies. It is precisely the opposite. It demonstrates restraint and respect for her role as an appellate judge.

Justice Sykes' record represents the antithesis of the activism that I have heard all of my colleagues say they do not want to see from judges nominated to our Federal courts. The Senate should be in the business of approving judges who have demonstrated that they respect the judicial role and will not substitute their own policy preferences for those expressed by the legislature. Judge Sykes' record in this regard is impeccable, and I will be pleased to vote with Senators Kohl and Feingold to confirm her to the Seventh Circuit. I urge my colleagues to vote with us.

We are prepared to yield the remainder of our time and I believe the remainder of the time for the other side of the aisle, except for 20 minutes which should be reserved for Senator Durbin on both nominees.

I suggest the absence of a quorum.

Mr. President, I would like to compliment my friend, Senator Stevens. He has been a tireless advocate for our Nation's military and has ensured that our service members receive the highest quality training possible. Senator Stevens has also not forgotten that it is the families of our service members who play a vital role in supporting our troops and Congress has a important responsibility to lighten this heavy load. Therefore, I rise to ask the Senator's thoughts about the Navy's determination to revolutionize its training and leadership program curriculum.

I thank the Senator. I also hoped the Senator might share his thoughts on how we might better support our service members families?

I thank my friend, the distinguished Chairman.

Mr. President, I rise today to express my strong support for the confirmation of Peter W. Hall, who has been nominated to the U.S. Court of Appeals for the Second Circuit.

Mr. Hall is an exceptional nominee and well-prepared for the Federal bench. A graduate of the University of North Carolina at Chapel Hill and a cum laude graduate from Cornell Law School, he served as a law clerk for United States District Court Judge Albert W. Coffrin in the District of Vermont. He then served in the United States Attorney's Office for the District of Vermont, first as an assistant U.S. Attorney, then as first assistant U.S. Attorney. From 1986 to 2001, Mr. Hall was a partner in the law firm of Reiber, Kenlan, Schwiebert, Hall & Facey, P.C. He then returned to the U.S. Attorney's Office--this time unanimously confirmed by the Senate--to be the United States Attorney for the District of Vermont, a position he holds today.

Mr. Hall has been very active very in his community. He served as President of the Vermont Bar Association from 1995-96, on the Federal District Court Advisory Committee for the United States District Court in Vermont as a Citizen Board Member of the Vermont Criminal Justice Training Council, and on the Board of the Vermont Karelia Rule of Law Project. From 1989-1994, he was a nonpartisan elected member of select board for the town of Chittenden, VT, and in 1995, he was the elected Justice of the Peace for Chittenden. He has also been involved in the lay leadership of his church.

Mr. Hall has overwhelming bipartisan support, including both of his home State Senators, Patrick Leahy and Jim Jeffords. The ABA unanimously rated him ``well qualified.'' He is an outstanding candidate who has been nominated to fill a vacancy that has been designated by the National Judicial Conference as a judicial emergency. I urge my colleagues to join me in supporting his nomination.

Mr. President, I rise today to express my strong support for the confirmation of William Duane Benton, who has been nominated to the U.S. Court of Appeals for the Eighth Circuit.

Judge William Benton is an ideal nominee and is well suited for the Federal bench. He is currently a judge on the Supreme Court of Missouri, where he has served for 13 years, including two years as chief justice of the court. He is highly respected by his peers, has broad bipartisan support, and received a unanimous ``Well Qualified'' rating from the American Bar Association. Both of Judge Benton's home State senators, Senators Bond and Talent, enthusiastically support his nomination to the Eighth Circuit.

Before I go on, I want to note here that Judge Benton is the only certified public accountant serving on any State supreme court in the United States.

I would also note Judge Benton's military career. From 1975 to 1979, he served with the U.S. Navy as a judge advocate. A Vietnam veteran, Judge Benton retired from the U.S. Naval Reserve at the rank of Captain following 30 years of active and reserve service.

Judge Benton has an outstanding academic record and I want to list a few of his accomplishments: He graduated summa cum laude from Northwestern University, where he became a member of Phi Beta Kappa. He then attended Yale Law School, where he distinguished himself as both an editor and managing editor of the Yale Law Review. While on active duty in the Navy, he attended business school at night at the University of Memphis and received his master's in business administration--with highest honors. And in 1995, he received an L.L.M. from the University of Virginia.

Judge Benton has been a dedicated public servant throughout most of his career, serving in all three branches of the Government at the State or Federal level. He was confirmed by the Missouri Senate for many of those positions: Director of Revenue for the Missouri Department of Revenue; the Chair of the Board of Trustees for the Missouri State Employees' Retirement, and Member of the Board of Regents for Central Missouri State University. Additionally, the governor of Missouri appointed Judge Benton to the Multistate Tax Commission prior to his service on the bench. The Missouri Senate also confirmed him for that position, and members from 32 other states elected him chair of the commission. Judge Benton also served as chief of staff to Missouri Congressman Wendell Bailey in the U.S. House of Representatives.

In addition to his many years as a public servant, Judge Benton maintained a law practice. During the 1980s, he had a general civil practice representing clients such as statewide associations and groups, small businesses, and local governments. He also represented several Federal inmates on a pro bono basis.

Judge Benton has the support of both home State senators. Furthermore, he has wide support from members of the Missouri bar, as well as community organizations such as the Jefferson City Branch of the N.A.A.C.P.

Judge Benton has a solid reputation for possessing a high level of integrity, and for being personable and engaging. I'm sure that my colleagues will agree that Judge Benton brings unmatchable expertise, as well as experience to the Federal bench.

Mr. President, I yield the floor.

Mr. President, I rise today to express my support for the confirmation of Dora Irizarry, who has been nominated to the U.S. District Court for the Eastern District of New York.

Judge Irizarry has an impressive record of academic achievement and public service. She is a cum laude graduate of Yale University and a graduate of Columbia University School of Law. She has spent the great bulk of her career in public service, including 16 years as an assistant district attorney prosecuting complex narcotics cases. In 1995, then-Mayor Rudolph Guiliani appointed her to the New York City Criminal Court. Two years later, she was elevated by Governor George Pataki to the New York Court of Claims, where she served as an acting justice on the New York Supreme Court. After seven years of service as a judge, she left the bench in 2002 to campaign as the Republican candidate for State Attorney General. She is currently in private practice with the New York law firm of Hoguet Newman & Regal.

In acknowledging the questions that some of my colleagues have about Judge Irizarry, let me just say I have done my best to ensure her nomination is treated with fairness and respect, and I believe we've succeeded. During the confirmation hearing for Judge Irizarry, we heard from the ABA and we also heard from three distinguished members of the New York legal community. We heard from New York Supreme Court Justice Michael Pesce, the presiding justice, and New York Supreme Court Justice Lewis Douglass, as well as James Castro-Blanco, immediate past president of the Puerto Rico Bar Association. They praised her legal aptitude and experience, her integrity, and, most notably, her judicial temperament.

Furthermore, the Committee received a number of letters in support of Judge Irizarry's nomination from those who were unable to attend her hearing, as well as a strong letter in support from the Congressional Hispanic Caucus.

When I look at the full record in this case, including the impressive testimony on behalf of Judge Irizarry from her judicial colleagues and former associates, the endorsements of the Brooklyn, Asian American and Puerto Rican Bar associations, and her own answers to the questions that have been raised, I am persuaded that she is prepared to be a fine Federal judge. I support her confirmation, and I ask my colleagues to do the same.

Mr. President. I yield the floor.

Mr. President, I am pleased today to speak in support of George P. Schiavelli to be United States District Judge for the Central District of California.

Judge Schiavelli has exceptional qualifications for the Federal bench. After graduating first in his class from UCLA Law School in 1974 he joined the law firm of O'Melveny & Myers LLP as an associate where he worked on litigation, labor, corporate and entertainment issues with an emphasis on commercial litigation. In 1976, Judge Schiavelli joined the litigation department of Ervin, Cohen & Jessup LLP. Ten years later, he was hired as a partner at Horvitz & Levy, LLP, an appellate law firm.

Judge Schiavelli began his distinguished career in public service by joining the Los Angeles Superior Court in 1994 where he served until 2000. Since that time, he has practiced principally in the area of alternative dispute resolution, ADR, acting as a mediator, arbitrator, referee, and special master. In addition to his ADR activities, Judge Schiavelli has been Of Counsel to the Appellate Group of Reed Smith

Mr. President, I rise today to express my strong support for the confirmation of Robert Harwell, who has been nominated to the U.S. District Court for the District of South Carolina.

Mr. Harwell is an exceptional nominee. A graduate of the University of South Carolina School of Law, he brings more than 20 years of legal experience to the Federal bench. After graduation, he clerked consecutively for South Carolina Circuit Judge Rodney A. Peeples and U.S. District, South Carolina, Judge G. Ross Anderson, Jr.

Let me just say that Mr. Harwell, like my distinguished colleague from South Carolina, Senator Lindsey Graham, has served as judge advocate general in the South Carolina Army National Guard. I note that Senator Graham served in the Air National Guard.

After his clerkships, Mr. Harwell entered private practice with the law firm of Harwell, Ballenger & DeBerry, now known as Harwell, Ballenger, Barth & Hoefer, LLP, where he currently practices. In addition to practicing law, he often serves as a mediator or arbitrator, skills that will undoubtedly serve him well on the bench.

I think my colleagues will agree that Mr. Harwell is a well-qualified nominee and will make a fine jurist.

Mr. President. I yield the floor.