Floor Statements

Mr. President, I am especially pleased today to speak in support of our nominee to the United States District Court for the District of Maryland, Roger Titus.

When the White House nominated Mr. Titus last June, Judge Peter Messitte of the district of Maryland, who happens to be an old high school classmate of Mr. Titus, called him a ``first-class appointment and just a great guy. He is really one of the finest lawyers around.'' I agree wholeheartedly.

Not only is Mr. Titus a ``great guy'' and ``one of the finest lawyers around,'' he is extremely well qualified--and well-deserving of the ABA's unanimous Well Qualified rating. His credentials are impeccable.

Mr. Titus earned a B.A. from Johns Hopkins and a J.D. from Georgetown University Law Center. Following his graduation from law school in 1966, Mr. Titus entered public service. He was first appointed as an assistant city attorney for Rockville, Maryland. He served in that capacity until 1970, at which time he was appointed city attorney.

While serving as a committed public servant, Mr. Titus established a private and prestigious law practice specializing in complex civil and appellate litigation. And in between serving in public office and operating a successful law practice, he found the time to teach at his alma mater, Georgetown University Law Center.

In 1988, Mr. Titus and his law partner merged their practice into Venable, Baetjer and Howard, LLP, where he is currently a partner. His clients include the Board of Education of Montgomery County, the Montgomery County government, the Howard Hughes Medical Institute, Igen International, Inc., and Circuit City Stores, Inc.

Fellow members of the Maryland bar have recognized Mr. Titus's outstanding legal skills. He has received numerous accolades, among them fellowships in notable organizations such as the American Bar Foundation, the American College of Trial Lawyers, the American Academy of Appellate Lawyers, and the Maryland Bar Foundation. In 1989, he was appointed to the Standing Committee on Rules of Practice and Procedure of the Court of Appeals of Maryland. In 1999, he was one of seventeen living attorneys to be awarded the Century of Service Award by the Bar Association of Montgomery County. And in 2001, he was awarded the Leadership in Law Award of The Daily Record.

Mr. Titus brings sterling credentials, legal acumen, and nearly 40 years of experience to the Federal bench. He will undoubtedly be an excellent addition to the bench and I urge my colleagues to join me in supporting his confirmation.

Mr. President, I thank the managers, Chairman Bennett and Senator Kohl, for agreeing to the amendment that Senators Harkin, Durbin and I offer today.

The purpose of our amendment is simple. The Food and Drug Administration has advised us that, in fiscal year 2004, it will spend $10.4 million to regulate dietary supplements. The Hatch-Harkin-Durbin amendment would increase those activities by 10 percent, or $1 million.

Let me explain why this amendment is necessary. First, I will explain the pertinent law that the FDA administers.

There is no question that tens of millions of Americans rely daily on safe dietary supplements to maintain and improve their healthy lifestyles. The popularity of these products and the concern over their regulation are what led to enactment of the Dietary Supplement Health and Education Act, DSHEA, in 1994, a bill that Senator Harkin and I were proud to author with now-Governor of New Mexico Bill Richardson. DSHEA is a strong law that properly implemented will protect the interests of consumers. But, as with any law, it has to be implemented for it to work.

Enactment of DSHEA followed literally decades of Food and Drug Administration animosity toward dietary supplement products. This animosity and the lack of a clear regulatory structure for supplements were clearly demonstrated prior to passage of DSHEA. That is why two- thirds of the Senate cosponsored our bill. That is why a majority of the House cosponsored the bill. And that is why it passed so overwhelmingly.

The basic structure of DSHEA allowed all products marketed as dietary supplements when the bill was enacted to stay on the market unless the FDA could show safety problems with a particular product or line of products--this is the so-called ``grandfather'' provision; manufacturers must notify the FDA before any new ingredients are marketed. At the same time, we provided the FDA with the full range of enforcement mechanisms to act against unsafe or misbranded supplements, including seizure, injunction, civil monetary penalties and even criminal penalties.

When Chairman Dingell and Chairman Waxman expressed lingering concerns that an unsafe product might be marketed and FDA would not have adequate authority to act against it, we added a new tool-- imminent hazard--so that the Secretary could take immediate action against a product that he believed poses an imminent hazard to public health. I might add, the definition as to what constitutes an ``imminent hazard'' is entirely up to the Department of Health and Human Services, so this is a very broad authority.

Even so, there are some who believe that dietary supplements should not be marketed in the United States without a preclearance similar to that for pharmaceuticals. We who drafted and passed DSHEA along with millions of Americans were persuaded that was not necessary.

First, most supplements cannot be patented, so there is little incentive for manufacturers to undergo the expensive and time-consuming FDA approval process.

Second, many supplements have been used safely for literally centuries, if not millennia, so it is not necessary to subject them to the approval process. That was why even the most liberal members felt comfortable with the grandfather structure.

Finally, we added a provision so that FDA would have the time to examine any ingredient not previously marketed and the evidence of its safety before that product actually reached the stores.

When we drafted DSHEA, ensuring the safety of products was at the forefront of our efforts. The law gives the FDA abundant tools to remove products that are unsafe from the market. It includes a safety standard that was carefully crafted with Senator Kennedy and Representatives Dingell and Waxman, the chairs of FDA-related panels in 1994.

There is no excuse for a supplement manufacturer to market products that are unsafe or inaccurately labeled or that make outlandish claims. Unfortunately, a small number of irresponsible supplement companies are taking advantage of consumers. I contend that the law is adequate to deal with them if FDA implements and enforces it. So, we come to the purpose of our amendment.

In the nine-plus years since DSHEA was enacted, there has been too much talk that the law handcuffs FDA and too little effort to apply the law.

It is impossible for this law to protect consumers if it is not enforced.

I am not here to criticize the FDA or throw barbs. Frankly, the FDA under Commissioner Mark McClellan has done more to enforce DSHEA than the previous administration had. I credit Commissioner McClellan for his commitment to implement the law fully. I truly believe he wants to make this law work. Congress must support him.

That is why I have joined with Senator Harkin to introduce the DSHEA Full Implementation and Enforcement Act of 2003, S. 1538. And that is why we are offering this amendment today, which we consider to be a down payment on S. 1538.

Yes, there is a small number of products that do raise serious concerns. Ephedra is one. As I have done for many years, I urge the FDA to act definitively on this issue based on the best available science, not politics. If the agency deems that ephedra poses a significant or unreasonable risk of illness or injury when used as labeled, than the agency can and must move to take the product off the market. This has gone on for too long. That is the reason I am happy to cosponsor the companion amendment offered by Senator Durbin.

Earlier this year, the FDA advised me it had received 3,000 comments and 12,000 letters in response to the agency's proposed rule-making on ephedra.

This has obviously placed a burden on this tiny agency, which needs funding to complete the job it has undertaken.

Indeed, as this example shows, the fight for resources is a huge challenge for FDA. The FDA simply does not have the staff or money it needs to do the job. In short, the agency is woefully underfunded, especially when it comes to dietary supplement regulation. That is the only reason I can see that the safety standard we enacted has never been invoked. That has to be the reason that it has taken almost a decade to promulgate the good manufacturing practice standards that can help guarantee the safety, the purity, and the accurate labeling of products. And that must be the reason that a product like androstenedione, which I believe is not even a dietary supplement, continues to be marketed in this country.

I have been very concerned about the safety of steroid precursor products like andro--and especially when they fall into the hands of our youth.

That is why I have joined with Senator Biden, Senator Harkin and Senator Grassley to cosponsor the Anabolic Steroid Control Act, S. 1780, that will add andro and other steroid precursors, as well as THG, to the list of controlled substances. I intend for the Judiciary Committee to make adoption of S. 1780 a priority, and I hope my colleagues will join me in supporting both S. 1780 and S. 1538.

We have a very solid dietary supplement law that can deal with problems that arise. But, the FDA must use that law for it to be effective, and Congress must support the agency in that effort.

Mr. President, I appreciate Senator Collins, chair of the Governmental Affairs Committee, entering into a colloquy on a matter that concerns the Judiciary Committee. In particular, our colloquy involves the nomination of Michael Garcia to be Assistant Secretary of Homeland Security. Following our statements, I will seek an unanimous consent agreement to refer Mr. Garcia's nomination to the Judiciary Committee.

All committees derive their ``respective jurisdictions'' from Senate Rule XXV, among other sources. As such, the Governmental Affairs Committee, in its responsibility for the ``organization and reorganization of the executive branch of the Government,'' played a crucial role in establishing the new Department of Homeland Security. I would like to compliment Senator Collins on her leadership and the significant improvements that have resulted in our Nation's security since September 11.

Also, under Senate Rule XXV, the Committee on the Judiciary has jurisdiction over ``immigration and naturalization.'' It is important for the immigration and naturalization functions which have been transferred from the Department of Justice and other law enforcement agencies to the Department of Homeland Security to remain under the jurisdiction of the Judiciary Committee.

With the formation of three new bureaus for immigration policy in the Department of Homeland Security, countless situations--from day-to-day immigration services and enforcement to long-term border security planning--will arise in which legislation affecting these bureaus and oversight of these bureaus is an essential role of the Judiciary Committee. I appreciate my colleague taking the time to clarify the confirmation process for Mr. Garcia and the commitment to Senate Rules XXI and XXVI, Section 8 as it affects the Judiciary Committee's jurisdiction.

I thank the chair of the Governmental Affairs Committee for her comments and efforts on this matter.

Mr. President, I rise today in support of the nomination Charles W. Pickering, Sr. to be a Circuit Judge on the United States Court of Appeals for the Fifth Circuit. I am pleased that the Majority Leader has brought this nomination to the floor, as it has been nearly 2\1/2\ years since Judge Pickering was first nominated to this position. Since then, his record has been carefully considered. He appeared before the Judiciary Committee in not one, but two lengthy hearings. So there has been plenty of opportunity to consider the qualifications of Judge Pickering.

We have received hundreds of letters of support for Judge Pickering from the public, members of the bar, as well as political, academic, and religious

leaders. The overwhelming support for Judge Pickering's nomination from his home state of Mississippi speaks volumes, especially since that support comes from across the political spectrum and from various racial and ethnic groups.

Last month, the Governor of Mississippi and the other Democratic elected statewide officials of Mississippi sent a letter endorsing Judge Pickering stating they believe he should be confirmed. In that letter they noted that Judge Pickering has worked for racial reconciliation and ``helped unify our communities.'' They go on to state, ``Judge Pickering's record demonstrates his commitment to equal protection, equal rights and fairness for all. His values demand he respect the law and constitutional precedents and rule accordingly. He does. . . . As a judge, he is consistent in his fairness to everyone, and deemed well qualified by those who independently review his rulings, temperament, and work.''

Unfortunately, there has also been an unjustified campaign against Judge Pickering, driven largely by Washington special interest groups who do not know Judge Pickering and who have an ideological axe to grind. Make no mistake about it--these groups' political agenda is to paint President Bush's fair and qualified nominees as extremists in order to keep them off the federal bench. It has been reported that a member of this body has accused the President of ``loading up the judiciary with right-wingers who want to turn the clock back to the 1890s,'' stating that America is under attack from ``the hard right, the mean people.'' That news report also quoted that same Senator as having said, ``They have this sort of little patina of philosophy but underneath it all is meanness, selfishness and narrow-mindedness.''

Now, I am disappointed that this is the level of discourse that Members of this body lower themselves to in their attempt to score political points or pander to their supporters. That is their right, if they choose to do so, but it is unfortunate that the opponents of Judge Pickering have attempted to vilify and destroy his good character and exemplary record with distortions and disparaging remarks. For example, at a recent press event in Arkansas opponents continued their smear campaign, with one group describing Judge Pickering as a ``racist,'' a ``bigot'' and a ``woman-hater.'' Such remarks reveal which side is based on meanness.

So today I must stand and defend the character and record of Judge Pickering and put these falsehoods, distortions and mean-spirited remarks in the trash bin where they belong.

I was pleased that, despite this intimidation campaign, President Bush in January of this year renominated Judge Pickering for the Fifth Circuit. The propaganda easily gets in the way, so let me remind my colleagues that after fully evaluating Judge Pickering's integrity, competence, and temperament, the American Bar Association gave him its highest rating of ``Well Qualified'' not once, but twice--both when he was first nominated in May 2001 and again at the outset of the current Congress.

Now I expect we will hear complaints from the other side that this nomination should not be before the Senate. There are those who say the President should not have renominated Judge Pickering, since the Judiciary Committee had already acted on the nomination. That position, of course, ignores the President's constitutional authority to nominate judges. And the extraordinary action taken by the Judiciary Committee in the last Congress denied the full Senate its constitutional right to advise and consent. Going forward with this nomination today is fair to Judge Pickering, fair to the Senate, and fair to President Bush.

In addition to these procedural complaints, we have heard and will likely continue to hear a recycling of the tired arguments and well- worn parade of horribles--which are horrible in large part because of their gross distortion of Judge Pickering's upstanding reputation and record. It is my fervent hope that opponents of this nomination do not resort to attacks on Judge Pickering based on his personal convictions in an effort to justify their opposition to his nomination. However, I am not optimistic that my hopes will be realized, if the unfortunate attack by the extremist abortion group, NARAL, the National Abortion Rights Action League, is any indication. That group, which represents what this debate is truly about, states ``Charles Pickering of Mississippi was a founding father of the anti-choice movement, and a clear risk to substitute far-right ideology for common-sense interpretation of the law.''

I reject that characterization, but in any event Judge Pickering's private views on abortion, like any judicial nominee's personal views on political issues, are irrelevant to the confirmation decision. Judge Pickering has publicly affirmed in his confirmation hearings that he will follow established law and Supreme Court precedents--even those with which he disagrees. His record as a jurist demonstrates his commitment to the rule of law and that he understands that all lower courts, including the 5th Circuit, are bound by Roe and by the more recent Supreme Court decision in Planned Parenthood v. Casey.

For the record, in 1976, then-political advocate Charles Pickering joined a long line of famous Democrats and liberals who believed that Roe v. Wade was wrongly decided. Some who shared his view include Byron White, President Kennedy's appointee to the Supreme Court, Archibald Cox, the special prosecutor who investigated President Nixon, and Professor William Van Allstyne, a former board member of the ACLU. But I repeat--Judge Pickering's political views are less important than his expressed commitment to follow Supreme Court precedent, even precedents with which he may not agree.

It is outrageous that Judge Pickering, who has three daughters and nine granddaughters, has been smeared as a ``woman-hater'' or ``anti- woman.'' Indeed, numerous women who know and have worked with Judge Pickering have endorsed his nomination, including civil rights attorney Deborah Gambrell, and Deputy U.S. Marshal Melanie Rube.

Unlike some of my friends on the other side of the aisle, I have steadfastly resisted efforts to inject personal ideology into the confirmation process. We have all seen the destructive effects of such tactics on this institution, on the judicial nominations process, and on the nominees themselves. So as we debate the qualifications of Judge Pickering, and as his record is fairly evaluated on the merits, there can be little doubt that he deserves the support of every Member of the Senate.

Let me step back from the politics of this nomination for a minute and talk about the person. Too often, I fear, we Senators get engaged in the issues to such an extent that the personal side of individual nominees might be forgotten. By many opponents, Charles Pickering is portrayed as the stereotype of the Southern white male, locked in the thought, culture and traditions of his upbringing in the deep South of yesteryear. This is the caricature they attack, but it is not the reality of who Judge Pickering is. Though born and raised in the rural South, and although he has remained geographically near his childhood home, Judge Pickering has traveled far in his personal and professional life. And while the society of his youth has changed dramatically, in Charles Pickering we have a nominee with a lifetime record of civic and community service in improving racial relations and enforcing laws protecting civil and constitutional rights.

Judge Pickering's life story includes an outstanding academic record, an exceptional legal career and a life committed to serving others. He graduated first in his law school class at the University of Mississippi in 1961. While in law school, he was on the Law Journal and served as Chairman of the Moot Court Board. Upon graduating, he became a partner in a law firm in Mississippi.

In the 1960s, when racial tensions were prevalent throughout Mississippi, Judge Pickering served as City Prosecuting Attorney of Laurel and was elected and served four years as County Prosecuting Attorney of Jones County. He condemned racially motivated violence and encouraged citizens to help the government prosecute those guilty of such violence. As County Attorney from 1964 to 1968, he assisted the FBI in investigating and prosecuting the Klan's attacks on African Americans and civil rights workers.

During his time as County Attorney, the KKK infiltrated the Woodworkers

Union at the Masonite pulpwood plant in Jones County. Klan members beat people, shot into houses, fire bombed homes, and even committed a murder at the Masonite plant. Judge Pickering signed the affidavit supporting the murder indictment of reputed Klansman Dubie Lee for the murder at the Masonite plant. He also testified against the Imperial Wizard of the KKK, Sam Bowers, at a trial for the firebombing death of a civil rights activist, indisputably putting himself and his family at risk.

Now some may downplay Judge Pickering's actions during this era, but I want to emphasize the moral courage that he consistently displayed. Let me remind my colleagues of a statement by the chairman of the Mississippi Legislative Black Caucus, state Rep. Philip West, who is a supporter of Judge Pickering and has defended the judge's civil right's record. Representative West observed, ``For him to say one word against the Klan was risking his life.'' Mr. President, to hear Judge Pickering now described as a racist or bigot is simply despicable, and I will challenge anybody who does that on this floor.

Throughout his career Judge Pickering has shown a commitment to his community in both a professional and personal capacity. His numerous civic contributions include serving as the head of the March of Dimes campaign in Jones County; as the chairman of the Jones County Chapter of the American National Red Cross; and as the chairman of the Jones County Heart Fund. In 1963 he was recognized as one of the three Outstanding Young Men in Mississippi. Judge Pickering is active in his church and has served many years as a Sunday school teacher, as chairman of the deacons, Sunday school superintendent, and church treasurer.

He has worked with organizations to advance issues that promote equal opportunity for all individuals in his community, church, political party and State. His work with the race relations committee for Jones County and the Institute of Racial Reconciliation at the University of Mississippi are just two examples of his leadership for equal rights in this area. That is why we find such a broad outpouring of support for Judge Pickering across all groups and political parties. Allow me to share some of these editorials, articles, and letters with my colleagues.

I have already mentioned the letter of support from the current Governor of Mississippi and other Democratic statewide officials. Another letter came from William Winter, the former Democratic Governor of Mississippi, who writes, ``I have known Judge Pickering personally and professionally for all his adult life. I am convinced that he possesses the intellect, the integrity and the temperament to serve with distinction on that [Fifth Circuit] court. He is wise, compassionate and fair, and he is precisely the kind of judge that I would want to decide matters that would personally affect me or my family. While Judge Pickering and I are members of different political parties and do not hold to the same view on many public issues, I have always respected his fairness, objectivity, and decency.''

Many Senators are familiar with the name Jorge Rangel, who was nominated to the Fifth Circuit by President Clinton. In his letter supporting Judge Pickering's nomination, Mr. Rangel explains, ``I first met Judge Pickering in 1990 in my capacity as a member of the ABA's Standing Committee on the Federal Judiciary. As the Fifth Circuit's representative on the Committee, I conducted the primary investigation into his professional qualifications when he was nominated to a federal district judgeship in Mississippi. The Charles W. Pickering that I have read about in press reports during the pendency of his current nomination does not comport with the Charles W. Pickering that I have come to know in the last thirteen years. Competent, compassionate, sensitive and free from bias are terms that aptly describe him. Attempts to demonize him are both unfair and out of place in a judicial confirmation proceeding.'' Mr. Rangel notes that Judge Pickering called him during the pendency of his own nomination with words of encouragement, and concludes, ``The current impasse in the confirmation proceedings is an unfortunate one, because it continues to ensnare many nominees of goodwill who have answered the call to serve. For their sake and for the ongoing vitality of our federal judiciary, I would hope that you and your colleagues can find common ground. A good starting point would be the confirmation of Judge Pickering.''

Yet another letter of support came from renowned Las Vegas criminal defense lawyer David Chesnoff, a registered Democrat who serves on the Board of the National Association of Criminal Defense Lawyers. Mr. Chesnoff, who tried a case before Judge Pickering, writes, ``At no time during my experience before Judge Pickering . . . did I ever note even a scintilla of evidence that Judge Pickering did not treat every citizen of our great country with equal fairness and consideration. Based on my experience with Judge Pickering, I am offended that people are attacking his sterling character. I felt it important to register my position on his behalf and believe he would make an outstanding addition to the United States Court of Appeals for the Fifth Circuit. . . .''

I.A. Rosenbaum also wrote to voice his support for Judge Pickering. I will read his letter in its entirety: ``I was the Democratic Mayor of Meridian [Mississippi] from 1977 to 1985 and a past President of Congregation Beth Israel. Injustice and character assassination galls me. Charles Pickering is no racist. He stood tall when our Temple was bombed and made very effort to prosecute Sam Bowers who planned the bombing. Sincerely, I.A. Rosenbaum.''

All of these letters, of course, were generated in response to the gross smear campaign waged against Judge Pickering that centered largely on his actions in the Swan case. I expect that we will hear a great deal about that case during the course of this debate. But let me make something perfectly clear to everyone here. Judge Pickering's actions in the Swan case had absolutely nothing to do with racial insensitivity. His lifetime of striving to promote racial reconciliation and fighting prejudice provides irrefutable evidence of that. Rather, Judge Pickering's actions in the Swan case had everything to do with his penchant for going easy on first-time criminal defendants.

Judge Pickering's record is replete with examples where he has seen the rehabilitative potential of first-time offenders and accordingly sentenced them to lighter sentences. Take, for example, the case of a 20-year-old African-American drug defendant who faced a 5-year mandatory minimum. Judge Pickering reduced that to 30 months and recommended the defendant be allowed to participate in an intensive confinement program, further reducing his sentence.

Another young African-American drug defendant with no previous felony convictions faced a 40-month sentence under the Sentencing Guidelines. Judge Pickering continued his case for a year, placed him under strict supervised home release for 1 year, and then used his good conduct during home release to establish the basis for a downward departure. Judge Pickering ultimately sentenced him to 6 months of home confinement, 5 years probation and no prison time.

A third 20-year-old African-American male faced between 70 and 87 months under the guidelines for a drug crime. Judge Pickering downward departed to 48 months and recommended that he participate in intensive confinement, which further reduced his sentence. The defendant's lawyer called Judge Pickering's compassionate sentence a ``life changing experience'' for this defendant.

In another case, an African-American woman faced a minimum sentence of 188 months. The government made a motion for a downward departure, and Judge Pickering continued the case six times over a period of 2\1/ 2\ years to allow the prosecution to develop a basis for a further downward departure. In the end, Judge Pickering reduced her sentence by more than half, sentencing her to 63 months.

The last case I want to discuss is the Barnett case. The Barnetts, an interracial couple, were both before Judge Pickering, charged with drug crimes. Both were facing sentences between 120 to 150 months but plea bargained with the government for a maximum 5-year sentence. Judge Pickering sentenced Mr. Barnett to the 5 years but with

Mrs. Barnett, who had Crohn's disease and was taking care of one of her sick children, he departed downward 22 levels and sentenced her to 12 months of home confinement. At a later time, the government made a motion for a downward departure for Mr. Barnett and Judge Pickering reduced his sentence as well. Mrs. Barnett later wrote a letter, as she said, out of gratitude for all Judge Pickering did for her and her family. She stated she had learned a valuable lesson, that her family had been brought closer together, and that her husband had changed in many positive ways. She concluded, ``I want to thank you for your part in all of this, and I can assure you that your thoughtfulness and just consideration is greatly appreciated and will never be forgotten.''

Thirteen years ago Judge Pickering began his service as a U.S. District Judge. He was unanimously confirmed by the U.S. Senate, which included a good number of members who are still serving in the Senate today, including 25 members of the Democratic caucus. That affirmative vote was well deserved given Judge Pickering's excellent academic record, his distinguished legal career, his outstanding character, and his superb record of public and community service. That record has only been enhanced by his service on the bench.

Judge Pickering deserves an up or down vote on the Senate floor. So I urge my colleagues to use proper standards, consider the entire record, and use a fair process for considering Judge Pickering's nomination. Those who know him best, Democrats and Republicans, representing a broad cross section of citizens, endorse his nomination. An unbiased consideration of Judge Pickering's character and experience will lead every fair-minded person that Judge Pickering's record fully justifies his confirmation to the Fifth Circuit Court of Appeals.

As the President said recently, ``The United States Senate must step up to serious constitutional responsibilities. I've nominated many distinguished and highly-qualified Americans to fill vacancies on the federal, district and circuit courts. Because a small group of Senators is willfully obstructing the process, some of these nominees have been denied up or down votes for months, even years. More than one-third of my nominees for the circuit courts are still awaiting a vote. The needless delays in the system are harming the administration of justice and they are deeply unfair to the nominees, themselves. The Senate Judiciary Committee should give a prompt and fair hearing to every single nominee, and send every nomination to the Senate floor for an up or down vote.''

I agree with President Bush that this obstruction is unfair and harmful. I have taken to the Senate floor on numerous occasions to condemn the tactic of forcing judicial nominees through cloture votes. My position has been the same regardless of whether the nominee was appointed by a Democratic president or a Republican president. I am proud to say that during my nearly 30 years in the Senate, I have never voted against cloture for a judicial nominee, even on the rare occasion that I opposed a judicial nomination and ultimately voted against it.

Yet, once again, some Senate Democrats are filibustering another ``Well Qualified'' nominee--preventing an up-or-down vote on this judge who is supported by a majority of the Senate. This is tyranny of the minority and it is unfair. Senator Kennedy has asked ``What's the point of pushing yet again for a nominee who probably cannot get enough support to be confirmed because he doesn't deserve to be confirmed?'' With all due respect, I must disagree with the premise of his question. Judge Pickering does deserve to be confirmed, and, if an up-or-down vote were allowed, does have enough support to be confirmed.

As I have stated before, requiring a supermajority vote on this or any judicial nominee thwarts the Senate from exercising its constitutional duty of advise and consent. The Constitution is clear on this matter; it contemplates that a vote by a simple majority of the Senate will determine the fate of a judicial nominee. There is nothing in the Constitution that gives that power to a minority of 41 Senators.

Furthermore, a supermajority requirement for judicial nominees needlessly injects even more politics into the already over-politicized confirmation process. I believe that there are certain areas that should be designated as off-limits from political activity. The Senate's role in confirming lifetime-appointed Article III judges--and the underlying principle that the Senate perform that role through the majority vote of its members--is one such issue. Nothing less depends on the recognition of these principles than the continued, untarnished respect in which we hold our third branch of Government--the one branch of Government intended to be above political influence.

Over the past 2 years I have been accused of changing or breaking committee rules and of pushing ideological nominees. The record will show that these charges are without foundation. In fact, it is Senate Democrats that have pushed the notion of injecting ideology into the confirmation process and have taken unprecedented steps to oppose judicial nominees.

Opponents are using a variety of tactics to obstruct President Bush's judicial nominees. Supported by the extremist liberal interest groups, who themselves use even more shameful tactics to defeat these nominees, we have seen opponents distort the record, make unreasonable demands for privileged information, and force multiple cloture votes. This is all part of the strategy of changing the ground rules on judicial nominations that Senate Democrats have implemented.

I am not the only one who is concerned about the dangerous precedents that some Democrats have established. Before Miguel Estrada, the filibuster was never used to defeat a circuit court nominee. The Washington Post--hardly a bastion of conservatism--warned in a February 5, 2003, editorial that staging a filibuster against a judicial nominee would be ``a dramatic escalation of the judicial nomination wars.'' The Post urged Democrats to ``stand down'' on any attempt to deny a vote on the particular judicial nominee, Miguel Estrada. The editorial went on to warn that ``a world in which filibusters serve as an active instrument of nomination politics is not one either party should want.'' Unfortunately, this advice was rejected and the Senate was forced to endure an unprecedented seven cloture votes before Mr. Estrada requested his nomination be withdrawn. That was a sad day for the Senate--one I hope is never repeated.

Similarly, the Wall Street Journal, on February 6, 2003 stated ``Filibusters against judges are almost unheard of. . . . If Republicans let Democrats get away with this abuse of the system now, it will happen again and again.'' Unfortunately, that prediction came true, as the Senate is now blocked from acting on numerous judicial nominees because of filibusters.

But it is not just editorial pages which have denounced the use of the filibuster. In fact, some of my Democratic colleagues have expressed similar views. For example, Senator Daschle, the Democratic Leader stated: ``As Chief Justice Rehnquist has recognized: 'The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down.' An up or down vote, that is all we ask. . . .''

Similarly, Senator Leahy, my friend, colleague, and ranking member of the Judiciary Committee said ``. . . I, too, do not want to see the Senate go down a path where a minority of the Senate is determining a judge's fate on votes of 41.'' And Senator Kennedy, the senior member on the Judiciary Committee stated, ``Nominees deserve a vote. If our Republican colleagues don't like them, vote against them. But don't just sit on them--that's obstruction of justice.''

I hope that Judge Pickering's nomination is not another example of a double standard or a strategy of some of my Democratic colleagues to change the ground rules on judicial nominees. I hope that my Democratic colleagues will exercise the same independence that I did when I joined them to invoke cloture on the nominations of Clinton judicial nominees. Judge Pickering deserves an up-or-down vote, and he deserves to be confirmed.

Mr. President, there are so many other things I could say, but I want to leave enough time for our Mississippi Senators.

Let me just say this. I know Judge Pickering. I have gotten to know him

better through this ordeal he has gone through over the last 2\1/2\ years than I ever thought I would. He is a fine man. His family is a fine family. He sent his kids to integrated schools--the first integrated schools in Mississippi they could go to. One of them now sits in the Congress, Chip Pickering, who is one of the fine Congress people here, and everybody who knows him knows it.

What they have done to him is awful. It is awful. I think it is time for the Democrats to break free from these rotten outside groups that just play politics on everything and bring everything down to the issue of abortion.

I ask unanimous consent relevant material be printed in the Record.

Mr. President, I reserve the remainder of my time. I am happy to yield whatever time the distinguished senior Senator from Mississippi desires.

Mr. President, how much time remains?

I yield 5 minutes to the distinguished Senator from Georgia.

Mr. President, how much time remains?

I ask unanimous consent that there be an additional 10 minutes equally divided with, of course, the same understanding that Senator Cochran will be the last to speak for 5 minutes.

That is right, with the understanding that Senator Cochran will be the last to speak for 5 minutes.

Right.

With the understanding that Senator Cochran will be given the leader's 5 minutes at the very end of the debate.

Does the distinguished Senator care to go ahead?

Mr. President, I yield 2 minutes to the distinguished Senator from Georgia, Mr. Chambliss.

I yield the remainder of my time to the Senator from Tennessee.

How much time is remaining?

Mr. President, I understand the time has been used. I know the remarks of the distinguished Senator from Tennessee are much more lengthy. I ask unanimous consent that immediately following the vote, he be given time to finish his remarks.

That immediately following the vote on Judge Pickering, the distinguished Senator from Tennessee be given time to finish his remarks because he has prepared extensively.

That will be fine with me.

We have no objection.

Mr. President, how much time do I have?

Is that all the time left on either side?

Mr. President, I have heard my distinguished friends on the other side say we have approved 167 judges but have rejected only 3 with a filibuster. Actually, that is a little bit of an untruth because Miguel Estrada was filibustered and, of course, withdrawn. Priscilla Owen is presently being filibustered. Carolyn Kuhl, there is a threatened filibuster on her. These are all circuit court of appeals nominees. William Pryor has already been filibustered. Charles Pickering is being filibustered. This is a cloture vote to determine whether we can even have the dignity of an up-or-down vote.

Leon Holmes has been threatened with a filibuster. Janice Rogers Brown has been threatened with a filibuster. Claude Allen has been threatened with a filibuster.

The fact is, we have never had a filibuster before in the history of the Senate, in the history of this country, with regard to judicial nominees.

I have heard a lot of comments about what a nice man Judge Pickering is and all of this; it is the record they disagree with. This is a man who has been on the bench for a long time, and he would be a rare person if you didn't find one or two cases with which you disagree. I have to say that in all honesty, most of these arguments they have made are smokescreen issues and arguments.

I can't right now because I have a limited time.

Every one of them can be answered. Let me tell the principal reason behind this. After we voted Judge Pickering out of the committee a few weeks ago, we held a press conference. One of the people who appeared with us at the press conference was one of the leading civil rights ministers of the South, former head of the ACLU in Mississippi, really one of the most respected people in the civil rights cause. His life had been threatened. He came and spoke fervently for Judge Pickering. Before he did, I got up and I said: This is all about abortion.

After he spoke, he came up to me and he said: Senator, as you know, I am pro-choice, but you are absolutely right. This is all about abortion. Let me make that case by putting up this chart, the National Abortion Rights Action League.

I ask unanimous consent for 30 seconds for each side.

The National Abortion Rights Action League, Pro-choice America sent this out to everybody they could: ``Urge your Senators to stop anti-choice nominee Pickering'' because they know he is pro-life, even though he has agreed he will abide by the law. He will abide by Roe v. Wade.

He will abide by the other abortion cases. That is what this is all about. Frankly, I have it on impeccable information that that is what this is all about.

I yield the floor.

I appreciate Senator Collins, Chair of the Governmental Affairs Committee, entering into a colloquy on a matter that concerns the Judiciary Committee. In particular, our colloquy involves the nomination of Michael Garcia to be Assistant Secretary of Homeland Security. Following our statements, I will seek a unanimous consent agreement to refer Mr. Garcia's nomination to the Judiciary Committee.

All committees derive their ``respective jurisdictions'' from Senate Rule XXV, among other sources. As such the Governmental Affairs Committee, in its responsibility for the ``organization and reorganization of the executive branch of the Government,'' played a crucial role in establishing the new Department of Homeland Security. I would like to compliment Senator Collins on her leadership and the significant improvements that have resulted in our nation's security since September 11th.

Also, under Senate Rule XXV, the Committee on the Judiciary has jurisdiction over ``Immigration and naturalization.'' It is important for the immigration and naturalization functions which have been transferred from the Department of Justice and other law enforcement agencies to the Department of Homeland Security to remain under the jurisdiction of the Judiciary Committee.

With the formation of three new bureaus for immigration policy in the Department of Homeland Security, countless situations--from day-to-day immigration services and enforcement to long-term border security planning--will arise in which legislation affecting these bureaus and oversight of these bureaus is an essential role of the Judiciary Committee. I appreciate my colleague taking the time to clarify the confirmation process of Mr. Garcia and the commitment to Senate Rules XXV and XXVI, Section 8 as it affects the Judiciary Committee's jurisdiction.

I thank the Chair of the Governmental Affairs for her comments and efforts on this matter.

I thank the Chair. I thank my colleague for reserving his time for me. I also want to pay tribute to the distinguished Senator from Vermont and the distinguished Senator from Oklahoma for their leadership on this matter, for their goodness and kindness in support. I have to say with these two fine Senators we have in the Senate, both of them supporting this nominee speaks volumes of the fine man he is. But I have also heard from a couple of my colleagues whom I respect that they have ``serious concerns.'' Governor Leavitt has had a ``careless disregard for water and air,'' ``a disturbing tendency to ignore regulations,'' ``a hands off approach.'' He is a ``rollback administrator.''

As I understand it, those statements were made this morning. The distinguished Senator from Illinois said that Governor Leavitt has ``turned his back on the wilderness.'' He also said that ``Utah is one of the biggest polluter States in the Nation.''

I cannot blame him too much for making that statement because he is just quoting some of the irresponsible people in the environmental field who basically have totally ignored the facts, which I am going to speak about in a minute.

I am grateful to these two leaders for the kind way they have handled this nomination and for the effective way they have handled it so we will have a final vote on one of the finest Governors in this land to head one of the most difficult agencies in this land. He is a Governor who is known for working with everybody, known for keeping an open mind, known for being honest, known for being active, and known for intelligence. I could go on about Mike Leavitt. He is a very fine man.

Yesterday during the debate on the nomination of Gov. Michael Leavitt to be Administrator of the Environmental Protection Agency, my friend and colleague Senator Richard Durbin from Illinois stood up on the Senate floor and began an attack on the State of Utah and on Utah's Governor. Now this morning, I find that another friend and colleague, Senator Frank Lautenberg of New Jersey, has been following suit. I am certain both of them are sincere, but I am going to show that both of them are absolutely wrong as well.

First, I am very disappointed that my colleagues would spend time highlighting the supposed weakness of another Senator's State and the supposed weakness of that State's top elected official, especially when they are wrong in both instances.

It was very appropriate for the Members of the Senate in the Environment and Public Works Committee to ask the Governor questions orally and in writing about his management of Utah's natural resources and to allow him to provide answers to those questions, but to ignore his answers to those questions and to use the Senate floor to cast aspersions at Utah I find personally offensive.

Secondly, to be frank, I have to say I am especially offended that my colleagues choose this forum to make these attacks with information that is so clearly inaccurate and so cleverly twisted to cast Utah and its Governor in the worst possible light, so I find it necessary to make part of the Record the truth about some of the aspersions cast at my State.

Utah is one of the cleanest States in the Nation, and in large part this is due to Gov. Michael Leavitt, so one can imagine my surprise when one of my colleagues comes to the Senate floor to call Utah one of the Nation's biggest polluters and to blame our Governor for it. What does my colleague mean when he calls Utah a big polluter? A more important question is, What does the public think it means when they hear my colleagues say it?

Let me shed some light on where others have sown confusion. One of the principal indexes being looked at by my colleagues is the Toxic Release Inventory, or TRI, which is collected and published by the EPA. The most recent TRI report came out in 2001, but we should keep in mind that the data for that report, or for the TRI, are 2 years old. In other words, the 2001 TRI report makes use of data from 1999.

A very careful distinction must be made before using numbers from the TRI report. Some may believe or wish to cause others to believe that the TRI simply counts up how much pollution goes into our water and our air, but this is not necessarily the case, to say the least. In fact, every time a company uses a chemical and then correctly and legally disposes of it, that is considered a release.

Even if a pound of a certain chemical is properly recycled, that, too, is considered a pound of release. When a mining company takes a pound of dirt and rock and removes metals from it, that leftover soil and rock often contains chemicals from the processing and must be handled according to a very strict environmental set of regulations. However, each pound of that soil and rock is counted as a release under the TRI.

States such as Utah and Nevada have very large mining operations, and because the amount of leftover rock and soil from these operations is very large, these two States show up at the top of the list when all types of releases are combined.

So do TRI numbers really reflect pollution that is going into our air and water? Yes, in some cases. But as I just pointed out, many of the ``releases'' reported under TRI never go into our air or our water but are safely sequestered according to the law.

I quote from the EPA's TRI report itself, 2001 TRI public data release, ES-26:

TRI reports reflect releases and other waste management

activities of chemicals, not exposures of the public to those

chemicals. Release estimates alone are not sufficient to

determine exposure or to calculate potential adverse effects

on human health and the environment.

Most citizens will be more concerned about chemicals actually emitted into the air and discharged into our surface water than they will about leftover rock and soil from mining activities that are legally sequestered. According to the 2001 TRI report, Utah emitted about 19 million pounds of chemicals into the air during 1999, but the same report shows that the State of Illinois released nearly 60 million pounds of chemicals into the air. In other words, according to the TRI, during 1999 Illinois was three times the air polluter that Utah was. I point out that since then, Utah's biggest air polluter, MagCorp, has voluntarily upgraded its facilities and reduced its emissions by more than 90 percent. This is all under Governor Leavitt's management.

Let's look at surface water discharges. During that same year, Utah released 1.2 million pounds of chemicals into the surface water. This was below the average of all States. However, the TRI report shows that New Jersey released 3.7 million pounds and Illinois released 8 million pounds of chemicals into the surface water. In other words, according to the EPA, New Jersey is three times the water polluter that Utah is and Illinois almost eight times the polluter that Utah is.

So what does this mean? Does it mean that Illinois and New Jersey should be labeled as large polluters or, as my State was erroneously labeled, the biggest polluters in the country? No, of course not, and I certainly do not believe that to be the case. I believe they are both beautiful and well run States, just as I know Utah to be.

I think it does mean, though, that the Senators from these two States should be more careful about attempting to pin the ``polluter'' label on my State and on my Governor, and I am not going to stand for it. That is why I am making these remarks today, among other reasons. Frankly, I am going to stand up for this very fine Governor and good person who is known to be a person who works with people of all beliefs and from all parties.

Some of my colleagues and many in the environmental community have been a little too fast and too loose with pinning that unhelpful label of ``polluter'' on others and on the industries that keep our society running.

I have also heard on the Senate floor that Utah has one of the worst records for water quality enforcement in the Nation. This is patently false. There was a report put out by the environmental group that states this falsehood. However, the statement was

based on incomplete reporting on water quality data from Utah.

In an analysis of the complete data, the EPA has in fact determined that Utah ranks among the top 10 States in water quality compliance-- one of the top 10 States--and yet we have to put up with this type of unfortunate mischaracterization of my State.

Admittedly, some of my colleagues pay much too much attention to some of these people who are in this game for politics rather than for doing what is right for the environment. I might as well point out that Utah is also in complete compliance with EPA's air quality standards. This is rare amongst States, and it was not the case when Governor Leavitt took office.

I have also heard that Governor Leavitt has turned his back on wilderness in Utah and he supports bulldozing new roads through our national parks. Both statements are false as well, and rather than launch into a long debate about wilderness and BLM roads, I ask unanimous consent that the memorandum of understanding between the State of Utah and the Department of the Interior on State and county road acknowledgment be printed in the Record immediately following my remarks.

Anyone who reads this document will see that the understanding does nothing to allow new roads or even the upgrade of existing roads.

I ask unanimous consent for 1 additional minute.

They will also see that the understanding specifically excludes roads in our parks, refuges, wilderness areas, and even in our wilderness study areas. More important, these issues have nothing whatever to do with the Environmental Protection Agency, and that needs to be pointed out.

Finally, I reiterate my love for my beautiful State of Utah and for my good friend Michael Leavitt. In my statement yesterday, I showed that the record is clear that Michael Leavitt is a champion of the environment and that he is widely recognized as one of our Nation's top public managers. I urge my colleagues to put their full support behind his nomination to head up the Environmental Protection Agency and I do not believe they will be sorry. I believe my colleagues will find him to be the great leader that we all know him to be.

MEMORANDUM OF UNDERSTANDING Between the State of Utah and The

Department of the Interior on State and County Road Acknowledgment

This Memorandum of Understanding (MOU) is entered into

between the U.S. Department of the Interior and the State of

Utah on this 9th day of April 2003.

Whereas,

1. In a Report to Congress prepared in June of 1993, the

Department of the Interior explained that unresolved

conflicts over the status of rights-of-way created pursuant

to Revised Statute 2477 were creating a continuing cloud on

federal agencies' ability to manage federal lands.

2. On August 7, 2002, a bipartisan group of eight western

governors wrote urging the Department of the Interior to

bring finality to R.S. 2477 disputes in a cooperative manner.

3. On July 16, 2002, the National Association of Counties

adopted a resolution urging the Department of the Interior to

adopt a policy approach to R.S. 2477 rights-of-way that would

allow counties to maintain historical rights of way across

federally managed lands.

4. Disputes involving R.S. 2477 rights-of-way have

generated numerous expensive and inconclusive federal court

lawsuits that have left numerous questions concerning the

ownership status of R.S. 2477 rights-of-way unresolved; and

the high cost of this litigation has made it difficult for

states and counties to assert their rights and for

conservation groups to assert their interests.

5. The Department of the Interior has traditionally

approached R.S. 2477 issues by trying to define the precise

legal limits of the original statutory grant.

6. Most of the asserted R.S. 2477 rights-of-way that

actually have been part of western states-inventoried and

maintained transportation infrastructure since before the

enactment of the Federal Land Policy and Management Act

(FLPMA) in 1976 satisfy the statutory requirements of

``construction'' and ``highway'' under almost any

interpretation of those statutory terms.

7. The State of Utah has many R.S. 2477 claims, and on June

14, 2000, sent to the Secretary of the Interior a Notice of

Intention to File Suit under 28 U.S.C.\1\ 2409a(m) to quit

the title to those claims.

8. The roads in which the State of Utah and Utah counties

assert claims include many roads of continuing importance to

rural transportation.

9. Rights-of-way granted under R.S. 2477 are vested

property rights that cannot be eliminated or diminished

without due process. However, the statutory grant of the

rights-of-way did not require the issuance of an identifying

record, such as a patent. The resulting uncertainty

surrounding the identity and scope of R.S. 2477 rights-of-way

has created unnecessary difficulties in federal, state and

local transportation and land use planning decisions.

10. The State of Utah and Utah counties have spent

considerable time and substantial resources to gather

information about road claims and are prepared, if necessary,

to litigate those claims.

11. Federal, state and local managers and environmental

advocacy organizations have all demonstrated a desire to put

disputes surrounding R.S. 2477 to rest and move toward an

approach to land management that emphasizes cooperation.

Now, therefore, the parties stipulate and agree as follows:

1. The Department shall implement a State and County Road

Acknowledgment Process (Acknowledgment Process) to

acknowledge the existence of certain R.S. 2477 rights-of-way

on Bureau of Land Management land within the State of Utah,

as further described in, and subject to the terms and

conditions of, this MOU.

2. For purposes of the Acknowledgment Process only, neither

the State nor any Utah county shall assert a right-of-way for

any:

a. roads that lie within Congressionally designated

Wilderness Areas or Wilderness Study Areas designated on or

before October 21, 1993, under Section 603 of FLPMA; and

b. roads that lie within the boundaries of any unit of the

National Park System; and

c. roads that lie within the boundaries of any unit of the

National Wildlife Refuge System; and

d. roads that are administered by a federal agency other

than the Department of the Interior, unless that federal

agency consents to the inclusion of the road in the

Acknowledgment Process.

3. The State of Utah, or any Utah county, shall submit a

request to initiate the Acknowledgment Process for a

candidate road and shall reimburse the Bureau of Land

Management for the reasonable and necessary cost of

processing each request. Each eligible road submitted shall

have the following characteristics:

a. the road existed prior to the enactment of FLPMA in 1976

and is in use at the present time;

b. the road can be identified by centerline description or

other appropriate legal description;

c. the existence of the road prior to the enactment of

FLPMA is documented by information sufficient to support a

conclusion that the road meets the legal requirements of a

right-of-way granted under R.S. 2477; this information may

include, but is not limited to, photographs, affidavits,

surveys, government records concerning the road, information

concerning or information reasonably inferred from the road's

current conditions; and

d. the road was and continues to be public and capable of

accommodating automobiles or trucks with four wheels and has

been the subject of some type of periodic maintenance.

4. The Acknowledgment Process referenced in this MOU that

the Department shall use to acknowledge eligible roads is

FLPMA's recordable disclaimer of interest process.

See 43 U.S.C. 1745; 43 C.F.R. subpart 1864. The recordable

disclaimer of interest process provides a clear statutory

basis for resolving claims and provides an opportunity for

public notice and participation. The Utah State Director of

the Bureau of Land Management will issue a recordable

disclaimer of interest if the requirements of the applicable

statutes and regulations, and the terms of this MOU, have

been satisfied.

5. By signing this agreement, the Department recognizes

that road width and ongoing maintenance levels are essential

aspects of road management. Therefore, the scope of a road

that the Department disclaims should include a sufficient

width to allow the State or county to maintain the character,

usage, and travel safety of the road existing at the date of

this MOU. For purposes of the Acknowledgment Process only,

the width of the road asserted and the width of the road

disclaimed shall not exceed the width of ground disturbance

that currently exists for the road at the date of this MOU.

6. After the Department issues a recordable disclaimer of

interest for an acknowledged road, the State or a county may

want to increase the road's width beyond the already

disclaimed right-of-way, or to improve the road in a way that

substantially alters its character (such as by paving a

previously unpaved surface). But the recordable disclaimer of

interest process will not be used as a mechanism to

substantially alter the characteristics of a road. In cases

where the State or a county wishes to substantially alter a

road that is subject to the Acknowledgement Process in a way

that is outside the scope of ordinary maintenance, it will do

so only after notifying BLM of its intentions and giving BLM

an opportunity to determine that no permit or other

authorization is required under federal law; or, if a permit

or

other authorization is required, securing such a permit or

other authorization, issued in compliance with any applicable

law, including requirements of Title V of FLPMA and the

National Environmental Policy Act. In the event a permit is

deemed necessary, the Department will make its best effort to

process requests for access under Title V of FLPMA promptly

and cooperatively.

7. In order to facilitate the Acknowledgment Process in

Utah, the Department hereby declares that the requirements

for determinations under the ``Interim Departmental Policy on

Revised Statute 2477 Grant of Right-of-Way for Public

Highways; Revocation of December 7, 1988 Policy,'' dated

January 22, 1997, shall be inapplicable to acknowledgment

requests submitted in accordance with this MOU. While the

1997 Interim Policy shall still apply to all other requests

for right-of-way acknowledgment that are not submitted

pursuant to this MOU, the Department recognizes that other

interested states and counties may wish to submit proposed

MOU's for consideration by the Department that are generally

consistent with the principles set out in this agreement.

8. The State, Utah counties and the Department shall work

cooperatively to minimize trespass situations on roads that

are outside the scope of this MOU.

9. It is understood that the State and counties have

evidence regarding the existence of many roads, including

those in which they assert no ownership interest. They may

choose to use this evidence for other purposes, such as to

illustrate whether the land through which the roads run have

wilderness-like characteristics or resource values. The

Acknowledgment Process will take place independently and

without prejudice to any other use of this evidence or other

valid existing rights, if any.

10. After submitting a road to the Acknowledgment Process,

the State or a county may withdraw it from consideration at

any time prior to the actual recording of the disclaimer

issued by the Department, for any reason, without prejudice.

The submission of a road to the Acknowledgment Process does

not prejudice the State's or a county's valid existing rights

regarding that road under the law.

11. The Department shall execute any implementing

agreements with the State of Utah or Economy Act agreements

as appropriate with other federal agencies, as required by

applicable statutes and regulations, when effectuating the

purposes of this MOU.

12. Activities under this MOU and any implementing

agreements shall be conducted in accordance with mutually-

agreed upon plans for the classification of information by

the State, for the review and release of information, and for

cooperation in the preparation of any and all reports to

Congress. The release of any information by the Department

under this MOU will be in accordance with applicable statutes

and regulations.

13. Any expenditure of appropriated funds by the Department

will be developed in specific agreements authorized by

applicable statutes and regulations and is subject to the

availability of funds. This MOU shall not be used to obligate

or commit funds or as the basis for the transfer of funds.

14. This MOU shall not be construed as creating any right

or benefit, substantive or procedural, enforceable at law or

in equity, by a party against the State of Utah, Utah

counties, the United States, it agencies, its officers, or

any other person. This MOU shall not be construed to create

any right to judicial review involving the compliance or

noncompliance of the State of Utah, Utah counties, the United

States, its agencies, its officers, or any other person with

the provisions of this MOU.

Signed 4-9-03

Gale A. Norton

Secretary

United States Department of the Interior.

Signed 4-9-03

Michael O. Leavitt

Governor

State of Utah.

\1\ For purposes of this MOU, the terms ``road'' and

``highway'' shall be deemed synonymous.

I thank my colleague from Delaware. His comments speak volumes as to why we should support Governor Leavitt. I am particularly pleased and grateful for his support in this matter, as I am for the support of the two leaders.

Mr. President, this year marks the 10th anniversary of the opening of one of this country's greatest museums and educational institutions, the United States Holocaust Memorial Museum. I have been privileged to serve on the Council of this great institution since its founding, and I have had no greater honor in the years I have served in Washington.

The Museum opened in April of 1993. Speaking in this chamber at that time, I said that the reason we needed to support this institution was simple: ``To remember, and by remembering, to strengthen America's moral compass.''

The Museum has served as an institution of remembrance and study since then, and its contribution has been immense. Over 19 million visitors have gone through its doors in the past decade, making this museum one of the most popular in Washington, and in the United States. Of these 19 million, nearly six million of those visitors were children, who have seen and been moved by the exhibit ``Daniel's Story,'' which renders the story of the Holocaust from the perspective of a child.

Over two million international visitors have come to the Museum in the past 10 years. This includes seventy-three heads of state have been included among those foreign visitors. I am heartened to imagine how they have returned to their many nations with the striking impression of how profoundly this country considers the most cataclysmic human event of the 20th century, the Holocaust, and how we demonstrate this by supporting this institution in the heart of Washington, D.C.

Not only have nearly 20 million people come to the Museum, but the Museum, through its many traveling exhibits, has brought the story of the Holocaust to many cities around this country. In 2002, the Museum brought another exhibit, ``The Nazi Olympics: Berlin 1936'' to my home State of Utah, to show during our historic Winter Olympics. Over 20,000 Utahns and foreign visitors attended that exhibit, which demonstrated the historic arc from an era of national fascism and barbaric racism to the present day vision of tolerance and good will that my state showed the world in the winter of 2002.

The Museum also serves as a educational center for Holocaust scholarship. The Museum's Center for Advanced Holocaust Studies supports scholarship and publications at the Museum as well as in conjunction with universities throughout this country. In the short period of its existence, the Museum has already greatly advanced Holocaust studies and I say with confidence that future scholars of this seminal event of the 20th century will all be influenced by the work of this great Museum.

As I've mentioned already, this is not the first time I have taken to the floor to laud the work of this great institution. In November of 1995, concerned about a rise in episodes, both here and abroad, of Holocaust deniers perpetuating their grotesque perversions of history, I introduced S. Res. 193, a resolution denouncing Holocaust denial. Recognizing the scholarship already being promoted by the Museum, the resolution ``commended the vital, ongoing work of the United States Holocaust Memorial Museum, which memorializes the victims of the Holocaust and teaches all who are willing to learn profoundly compelling and universally resonant moral lessons.''

I introduced that resolution on November 9, 1995, which was the 57th anniversary of Kristallnacht, the night of broken glass, the notorious 1938 pogrom of Jewish persecution by the Nazi regime, preparing the dark descent to the Holocaust that was to follow. In my statement, I said: ``Fifty-seven years after Kristallnacht, we are fortunate to still have survivors of the Holocaust among us. I worry about the memory of the Holocaust when the survivors will no longer be here. With each passing year, we have fewer survivors among us.''

The stewards and scholars of the United States Holocaust Memorial Museum embody the recognition that the mission of the Museum is to preserve the memory of the victims. And for this reason, the Museum is marking its 10th anniversary in the only way it could: By hosting a historic ``Tribute to Survivors,'' which will occur at the end of this week, on November 1st and 2nd. It is fitting and proper that this would be the way to mark this anniversary. To date, 6,500 Holocaust survivors and their families are scheduled to attend, making this perhaps the last reunion of this kind. I urge all of my colleagues to review the schedule of events and, if at all possible, to go to the Museum to pay tribute to the survivors and this great institution.

To commemorate this event, and to honor the Museum on its 10th anniversary, I wish to submit this resolution

honoring the victims of the Holocaust and recognizing the vital work of the United States Holocaust Memorial Museum.

I am most grateful for the co-sponsorship of Senators Voinovich, Reid, Coleman, Collins and Smith.

As I understand it, the distinguished minority floor manager wants to have a UC.

Mr. President, if I could have 5 minutes to speak before the vote on the judge this evening.

Could I ask the distinguished Senator from New York if she would finish so I would have at least 5 or 6 minutes before the vote?

No, I am not objecting, with the understanding that I ask unanimous consent that before the vote on the judge this evening, I be given 6 minutes to speak.

Six minutes.

That is acceptable. I modify my unanimous consent request.

Mr. President, I thank my colleague from Oklahoma. I express my gratitude to the Democrats and, of course, our two leaders on the committee for being willing to vitiate this cloture vote and end what some perceived was a threatened filibuster of Governor Leavitt. I am very appreciative that they will allow a vote up or down tomorrow morning on Governor Leavitt's nomination as Administrator of the Environmental Protection Agency. That is what should be done.

Governor Leavitt is one of the finest public servants in this country. He has served our State long and well, but he has served the whole country in a variety of ways which I will mention.

It goes without saying that this is not a job Governor Leavitt has asked for or aspired to. But he has accepted the President's nomination, first of all because the President has asked him to, and second, because it's a job of critical importance for our Nation.

Other than our people and our values, our Nation's environment and natural resources are our greatest asset. We in Utah understand that better than most.

And in spite of what some critics of President Bush would have us believe, our Nation has been steadily getting cleaner and safer every year of his presidency. Already, President Bush has signed the Persistent Organic Pollutants Treaty. He has proposed and begun implementing ground breaking legislation to greatly accelerate the clean up of our Nation's brownfield sites. He has announced his plan to reduce off-road diesel emissions by 90 percent.

Although his critics refuse to believe it, President Bush's Clear Skies initiative will, in fact, lead to quicker reductions in air pollution across the board than would otherwise be accomplished. Under President Bush, powerplants will be updated and become cleaner than ever before. Under President Bush our forests and other natural resources will become better managed, and the threat of forest fires will be reduced--something that has not been done in the past.

Most important, our President is accomplishing these environmental goals without a dramatic increase in Federal mandates. He is doing it without pitting the environment against human needs. He is doing it without pinning the ``polluter'' label on our industry, as the past administration was so apt to do. President Bush has shifted the environmental debate from one about process and control to one about outcomes and results.

Governor Leavitt has a similar record for improving the environment in Utah. Before Governor Leavitt came to office, Utah often failed to meet national clean air standards. In large part this was because most Utahns live on a valley floor surrounded by mountains. Through hard work and consensus building, though, Governor Leavitt helped Utah to overcome our air quality obstacles, and our State now is in consistent compliance with the EPA's air quality standards.

Governor Leavitt also has been a leader in finding solutions to regional air problems. He helped to begin the Grand Canyon Visibility Transport Commission and the Western Regional Air Partnership, which established a wide sweeping collaborative approach to reducing haze over our national parks and public lands on the Colorado Plateau.

When Governor Leavitt took office, about 60 percent of Utah's streams met Federal water quality standards. This represented the current national average for States. Under his leadership, though, 73 percent of Utah's streams now meet the Federal standards, which is well above the national average. With his oversight, Utah developed a collaborative approach to meeting the Concentrated Animal Feeding Operations regulations. His approach was so successful that the U.S. Department of Agriculture has adopted it as a model.

Governor Leavitt has also led initiatives in our State to preserve our open space, improve fisheries, upgrade sewer systems, and clean up 5,000 underground gas storage tanks, thus preventing their contamination of Utah's water supply. Thanks to Governor Leavitt's careful stewardship, Utah's natural resources have not only survived a period of intense economic and population growth but have been improved across the board.

Is it any wonder that President Bush looks to Governor Leavitt to lead the charge on this very important front, when the Governor has so successfully pursued a collaborative approach to improving the environment?

To anyone who questions Michael Leavitt's commitment, I say: Look at the record; it speaks for itself. We can also look at Utah's budget during his administration.

In his 10 years as Governor, Mike Leavitt won a 41 percent increase in spending on environmental protection, and that's after adjusting for inflation. According to the Environmental Council of States, the average per capita spending on the environment is $51.80. Under Michael Leavitt, however, Utah surpassed that average, spending $62.31 per capita on the environment. The average State spends about 1.4 percent of its budget on the environment. Under Governor Leavitt's leadership, Utah now spends 2 percent of its budget on the environment.

The record proves that Governor Leavitt is a champion of the environment. But the record also informs us that he is one of the finest public managers in the Nation. The Governor has worked tirelessly for our State. Yet, he has found the time to serve as the chair of the Council of State Governors, the Republican Governors' Association, the Western Governors' Association, and the National Governors' Association. You don't get there without being one of the best, if not the best.

In 5 of Mike Leavitt's 10 years as Utah's chief executive, our State has been ranked the best managed State. USA Today recently called Utah the best fiscally managed State in the country. Even after the extremely tough financial times faced by our States in recent years, under Governor Leavitt, Utah has maintained its Triple A bond rating.

How could President Bush have found a better candidate to head up the Environmental Protection Agency? The answer is he couldn't have.

And how does holding up Michael Leavitt's nomination help our environment or our nation? We finally concluded it doesn't. The obvious answer is: it doesn't. Clearly, confirming this nominee is in the best interest of our environment and our Nation.

Finally, let me just say that I have known Mike Leavitt and his wonderful wife Jackie for nearly 30 years. No one I know works harder, is more fair and honest, is more capable, and is more sincere than my good friend, the Governor of Utah. I urge my colleagues to join me in confirming Michael Leavitt to fill one of the most important jobs in government, the Administrator of the Environmental Protection Agency.

I thank all of those who are making this possible with an up-or-down vote tomorrow morning.

Mr. President, I rise today to speak in support of the nomination of Dale Susan Fischer for the U.S. District Court for the Central District of California.

Judge Fischer is a Harvard Law graduate. She was a practicing attorney for 17 years before her appointment to the Municipal Court of California, Los Angeles Judicial District, in 1997. Three years later, she became a judge of the Superior Court of California, Los Angeles County, where she currently sits.

Judge Fischer has more than 20 years of legal experience. She will be a fine addition to the Federal bench.

We are proud to support her nomination. I recommend that my colleagues vote in her favor.

Mr. President, I ask for the yeas and nays on the nomination.

Mr. President, I truly wish that I did not have to address this body on this topic. Last February, I stood before this body and urged my colleagues to ensure the Help America Vote Act of 2002, HAVA, contained adequate funding, assuring the States that they will have the necessary resources to comply with the mandates contained in the new law.

In fact, the Senate adopted a Sense of the Senate amendment to reinforce our commitment to fund this act fully so that States and localities would not be hurt by yet another unfunded mandate. Our vote today should reflect that commitment.

As this body debated HAVA in February of 2002. I asked this pointed question: ``What if a future Congress fails to provide adequate funding for this legislation?'' Well, here we are just one Congress later and our States and localities--who were then experiencing budget shortfalls in early 2002 and are now facing budget crises--are now forced to make extremely difficult choices. We in Congress have fallen woefully short in delivering on our promise to fully fund the mandated portions of the bill.

Mr. President, I cannot tell you how many individuals in Utah have come up to me and expressed their great displeasure at the lack of funding for the HAVA law. The Congressional Budget Office has estimated the cost of HAVA at $3 billion. That is billion with a ``B.''

Let us look at the hard realities. Is it ethical for us, at a time when the majority of our States are facing serious financial difficulties, when some, such as my home State of Utah are cutting off health care benefits to children and closing prisons, to even suggest they foot the entire bill for these new mandates? I think not.

In this case, I'm sorry to have been correct. But, it is one Congress later and we are exactly where I warned that we would be. For the good of the States and the voters, we need to make available the resources necessary to fully implement HAVA.

I urge my colleagues to remember your commitment to your State and vote in favor of this amendment.

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

Madam President, I send an amendment to the desk.

Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Madam President, I rise today with Senator Leahy, Senator Nelson of Florida, and Senator Schumer to offer an amendment to the CAN SPAM Act of 2003. This amendment strengthens the act's criminal provisions by incorporating key provisions of the Criminal Spam Act of 2003, which I worked closely with Senators Leahy, Grassley, Schumer, Nelson of Florida and others to draft earlier this year and which was favorably reported out of the Judiciary Committee. To send an effective and adequate message of deterrence to the most egregious spammers, stiff criminal penalties must be an element of any comprehensive anti- spam legislative package.

Over the course of the past several Congresses we have become more and more aware of the problems associated with unsolicited commercial e-mail, or spam. Rarely a minute passes that American consumers and their children are not bombarded with e-mail messages that promote pornographic web sites, illegally pirated software, bogus charities, pyramid schemes and other ``get rich quick'' or ``make money fast'' scams.

The rapid increase in the volume of spam has imposed enormous costs on our economy--potentially $10 billion in 2003 alone--as well as unprecedented risks on our children and other vulnerable components of our society. Spam has become the tool of choice for those who distribute pornography and indulge in fraud schemes. We all know of children who have opened unsolicited e-mail messages with benign subject lines only to be exposed to sexually explicit images. We have heard of seniors using their hard earned savings to buy fraudulent health care products advertised on-line or of being duped into sharing sensitive personal information to later find themselves victims of identity and credit card theft.

We cannot afford to stand idle and continue to allow sophisticated spammers to use abusive tactics to send millions of e-mail messages quickly, at an extremely low cost, with no repercussions. The sheer volume of spam, which is growing at an exponential rate, is overwhelming entire network systems, as well as consumers' in-boxes. By year end, it is estimated that 50 percent of all e-mail traffic will be spam. It is no exaggeration to say that spam is threatening the future viability of all e-commerce. The time has come to curb the growth of spam on all fronts--through aggressive civil and criminal enforcement actions, as well as innovative technological solutions.

The criminal provisions that make up this amendment are intended to target those who use fraudulent and deceptive means to send unwanted e- mail messages. A recent study conducted by the Federal Trade Commission demonstrates that this is no small number. According to the FTC, 66 percent of

spam contains some kind of false, fraudulent, or misleading information, and one-third of all spam contains a fraudulent return e- mail address that is included in the routing information, or header, of the e-mail message. By concealing their identities, spammers succeed in evading Internet filters, luring consumers into opening messages, and preventing consumers, ISPs and investigators from tracking them down to stop their unwelcomed messages.

This amendment significantly strengthens the criminal penalties contained in the CAN SPAM Act by striking its misdemeanor false header offense and replacing it with five new felony offenses. The amendment makes it a crime to hack into a computer, or to use a computer system that the owner has made available for other purposes, as a conduit for bulk commercial e-mail. It prohibits sending bulk commercial e-mail that conceals the true source, destination, routing or authentication information of the e-mail, or is generated from multiple e-mail accounts or domain names that falsify the identity of the actual registrant. It also prohibits sending bulk commercial e-mail that is generated from multiple e-mail accounts or domain names that falsify the identity of the actual registrant, or from Internet Protocol, IP, addresses that have been hijacked from their true assignees.

The amendment includes stiff penalties intended to deter the most abusive spammers. Recidivists and those who send spam to commit another felony face a sentence of up to 5 years' imprisonment. Those who hack into another's computer system to send spam, those who send large numbers of spam, and spam kingpins who direct others in their spam operations, face up to 3 years' imprisonment. Other illegal spammers face up to a year in prison. The amendment provides additional deterrence with criminal forfeiture provisions and the potential for sentencing enhancements for those who generate e-mail addresses through harvesting and dictionary attacks.

I commend Senators Burns, Wyden, McCain, and Hollings for their hard work over the course of the past several Congresses on the CAN SPAM Act. They have worked diligently to enhance the privacy of consumers without unnecessarily burdening legitimate electronic commerce. The balance is a difficult one to strike. I compliment these fine Senators for being able to strike that balance and get it done.

I believe enactment of the CAN SPAM Act is an important first step toward curbing predatory and abusive commercial e-mail, but it is certainly not the end. We all recognize that there is no single solution to the spam problem. While we must critically and continually monitor the effectiveness of any legislative solution we enact, we must pursue other avenues as well. Technological fixes, education and international enforcement are integral components to any effective solution. To this end, we will need the assistance of private industry and our international partners.

I look forward to working with my colleagues in both Houses as we attempt to confront the spam problem on all fronts. I urge my colleagues to support this amendment which will strengthen the comprehensive legislative package that is before us today.

I am happy to do that.

I thank my colleague for those kind remarks and thank him and Senator McCain for their leadership in the Senate.

I ask unanimous consent to add Senator Grassley as a cosponsor of this amendment, No. 1893. Senator Grassley has worked with me and Senator Leahy every step of the way and deserves a lot of credit.

I ask unanimous consent that Sandra Wilkinson, a detailee to the Democratic staff and the Senate Judiciary Committee, be granted full floor privileges for the remainder of the debate on the CAN-SPAM Act of 2003.

Mr. President, I rise today because it is difficult for me to understand how anybody could support this barbaric, heinous approach toward abortion. The Senate passed S. 3, the partial-birth abortion ban of 2003, with strong bipartisan support, 64 to 33, back in March of this year. The legislation passed the House in June with similarly strong bipartisan support, 282 to 139. We were then forced to debate the motion to go to conference in September.

We completed the conference in September. Now we are finally able to vote on passage of the conference report. Let's get on with it. This has taken a long time in this Congress, but it also has taken 7 years to get to this point. Even though the Congress has passed similar legislation before, finally we will be able to send it to President Bush, who will sign it into law.

I know the people of my home State of Utah recognize the importance of this effort. The vast majority of people in Utah and, I believe, in our country, recognize that the practice of partial-birth abortion is immoral, offensive,

and impossible to justify. This procedure is so heinous that even many who consider themselves pro-choice cannot defend it.

Senator Santorum should be applauded for his tireless efforts to achieve this goal. His leadership has been essential and very much appreciated. I admire his efforts to protect innocent human life, especially here, where it is so graphically obvious this procedure cannot be defended.

By now we have all seen Dr. B. Benoit's film of the 3-dimensional ultrasound of the baby in utero, yawning and even smiling. This appeared in the Evening Standard in London. It is a picture of an unborn baby smiling inside the womb. It says: ``Picture Exclusive, Proof Babies Smile in Womb.'' It is truly amazing and enlightening what advancing technology has enabled us to see. This truly is an incredible window into the mother's womb, where it has to be clear to all who view it that this is a living human being, a living baby.

Yet there are those who want to protect the ability to violently crush this young life. In the case of the procedure we seek to ban with this legislation, it is a baby just inches away from being born. Yes, inches away from being born.

For those who may not have a clear understanding of this procedure, let me describe it. This is a little graphic, I agree, but we need to ensure that the American people understand what is going on. How anyone can justify this barbaric procedure is beyond me. A baby is almost fully delivered with only her head remaining inside the birth canal when the doctor stabs scissors into the base of the baby's skull to open a hole into which he then inserts a suction tube and sucks out the brain so the skull collapses. Then they pull the baby out and say it is not a living human being even though just seconds before this was a full human being, a living human being with legs dangling and kicking. I honestly do not know how anyone can avoid being truly sickened when they see a baby being killed in this gruesome manner. It is not done on a mass of tissue but to a living baby capable of living outside the womb, capable of feeling pain, and at the time this procedure is typically performed, capable of living outside the womb.

All this legislation does is ban the one procedure. As the testimony in the House made clear, the fact is, there is no medical need to allow this type of procedure. It is never medically necessary, it is never the safest procedure available, and it is morally reprehensible and unconscionable.

As I mentioned when we debated the bill in the spring, we have all heard in recent years about teenage girls giving birth and dumping their newborns into the trash can. One woman was criminally charged after giving birth to a child in a bathroom stall during the prom and strangling and suffocating the baby before leaving the body in the trash. Tragically, there have been several incidents around the country in the past few years. This should not surprise us. This is what happens when we continue, as some would do here, to devalue human life--those who would like to stop this bill by and large.

William Raspberry argued in a column in the Washington Post:

. . . only a short distance [exists] between what [these

teenagers] have been sentenced for doing and what doctors get

paid to do.

He got it right. When you think about it, it is incredible that there is a mere 3 inches separating a partial-birth abortion from murder. Partial-birth abortion simply has no place in our society and rightly should be banned. President Bush has described partial-birth abortion as ``an abhorrent procedure that offends human dignity.'' With that, I wholeheartedly agree.

Basic human decency, I hope, will prevail. I pray that never again will it be legal in this country to perform this barbaric procedure. Unfortunately, I am sure the opponents of this measure will seek to challenge the law in court where I hope good judgment will ultimately prevail.

In Stenberg v. Carhart, the Supreme Court confirmed:

. . . by no means must physicians [be granted] unfettered

discretion in their selection of abortion methods.

The House has already passed this conference report. It is time for this Congress to finish its work and send this bill to the President for his signature.

Oddly enough, young girls out there, young women, are becoming more and more opposed to abortion. I believe it has been this debate, this barbaric procedure that is the cause for them to think it through and to acknowledge that inside that womb of the mother is a living human being, a living baby, and especially one capable of living outside the mother's womb.

This is a serious debate. This is as serious a bill as we can have before the Senate. I hope our colleagues will vote overwhelmingly to pass the conference report as we simply have to get rid of this barbaric and inhumane procedure.

I yield the floor.

Mr. President, I am sorry to keep the body a little bit later, but I do think we need to make some points that really need to be made. We should be debating the Class Action Fairness Act of 2003 rather than squandering away the Senate's time debating a motion to proceed to the bill. That has become typical around here. Anything that can delay, anything that can make it miserable, anything that can make it difficult to pass legislation or even consider legislation, we are finding the other side is doing to us.

Yesterday, my colleague from Vermont, the ranking member of the Judiciary Committee, observed accurately that the days remaining in this session are numbered and that floor time is indeed precious. But what puzzles me is if there is such a premium for time, then why in the world are we faced with a Democrat filibuster on the motion to proceed to a bill? Usually, if you are going to filibuster, you filibuster the bill. So we all know what is going on here.

From what I know, based on the remarks yesterday from the ranking member and others, I understand that there is an objection to proceeding to S. 1751 because it has been characterized by some as ``special interest legislation.'' What ``special interest'' are we talking about? Are we talking about the ``special interest'' of millions of consumers throughout the country who are affected every day by class action abuses, or are we talking about the ``special interest'' of the everyday American worker who stands to lose because his or her employer can't increase wages or offer better health benefits because of the commercial uncertainties created by uncontrolled class action litigation, or are we talking about the ``special interest'' of the general American public that is losing faith in the American civil justice system because of the outrageous class action coupon settlements that only benefit the attorneys?

On this whole special interest point, I would like to direct your attention to a recent poll showing that the overwhelming majority of Americans believe that class action lawsuits benefit lawyers at the expense of their clients.

Look at this chart. ``Opinions on class action lawsuits; who benefits most from class action lawsuits.'' Lawyers for the plaintiffs, the public says--47 percent believe the lawyers benefit the most. They are right, especially in these frivolous suits we have been referring to. Buyers of products, 5 percent; companies being sued, 7 percent; 9 percent of the American people think the plaintiffs benefit the most from class action lawsuits--the ones they are bringing the suits for. Only 9 percent of the American public think the injured parties, the so-called victims, are the ones who benefit; 12 percent don't know; 20 percent say the lawyers for companies. So of the total opinion of the American people in a poll conducted, with an error margin of plus or minus 3.5 percentage points, a total 67 percent of the American people believe the lawyers are the ones who benefit from these class action suits; 67 percent believe class action lawsuits are a virtual bonanza for lawyers. The public is not too dumb; they are right.

In stark contrast, the poll shows only 9 percent of Americans believe the class action lawsuits benefit the victims or the plaintiffs themselves. When the public perception of class action lawsuits in our civil justice system is so negatively skewed, I find it difficult to say with a straight face this bill somehow advances ``a special interest.''

Perhaps the ``special interest'' we are really talking about is that belonging to one Hilda Bankston. Who is Hilda Bankston? This is Hilda in the photo. A beautiful woman, a decent person. I can tell you with certainty she is not a tobacco company. She is not a gun manufacturer or somebody who pollutes the environment. Hilda Bankston and her husband Mitch owned Bankston Drugstore in Fayette, MS, a small local pharmacy where Mitch worked as a pharmacist. The Bankstons were dragged into hundreds of lawsuits filed by class action attorneys in the State of Mississippi by virtue of owning the only drugstore in Jefferson County. Their small business became a prime target for forum-shopping class action attorneys in pharmaceutical cases.

The Bankstons' nightmare began in 1999 when Bankston Drugstore was named a defendant in the fen-phen diet drug class action lawsuit simply for filling a prescription written by a doctor--something they were supposed to do. Since then, plaintiffs lawyers have filed hundreds of pharmaceutical lawsuits against Bankston Drugstore. Every time a big drug maker was sued, even if the company was located in New York, or California, the plaintiffs' lawyers added Hilda Bankston and her husband as defendants--this hard-working owner of a single drugstore-- just because she sold that drug from her neighborhood drugstore, which was her obligation to do.

Even though Mrs. 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, Mrs. Bankston describes to us the toll this ordeal has taken on her both personally and professionally. She testified that, ``no 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.''

Mrs. Bankston also suffered the loss of her husband when, within three weeks of being named as a defendant in the fen-phen case, her husband died of a heart attack. It is stories like Mrs. Bankston's--an every-day citizen just trying to fulfill the American dream--that makes this bill so compelling. I think to characterize this bill as appeasing ``special interests'' is not only disingenuous but it ignores the extensive mountain of evidence showing otherwise. It is pure, unmitigated bunk and they know it.

I also understand the ranking member expressed surprise and concern over the lone difference between S. 274 as reported out of the committee and the rule XIV version of the bill, S. 1751, that we are now trying to move forward. To set the record straight, we are simply invoking Senate rule XIV, which is procedurally proper, to simply accommodate the revised mass actions provision the committee had removed from the bill during markup on the condition that it would be modified and replaced in the bill before floor consideration. That is what we agreed to do. That is all we did. The rule XIV version of the bill, which is numbered S. 1751, is the identical bill we voted favorably out of committee, except for the return of the revised mass actions provision the members on the Judiciary Committee knew or should have known would be restored into the bill before floor consideration.

Just on Friday, the majority leader asked unanimous consent to bring up S. 274, substituting with the text of what is now S. 1751. There was an objection from the other side of the aisle which forced the majority leader to bring up S. 1751 under rule XIV. To now hear we are somehow not acting in

good faith is, at best, a misunderstanding and at worst a deliberate attempt to mislead. You make the decision, you make the judgment on that. I know what I think.

By way of background, I want to explain what happened with this provision. When the original bill, S. 274, was marked up during committee last April, the committee members agreed to an amendment offered by Senators Feinstein and Specter striking two provisions from the bill only with the understanding that the language would be modified and replaced before floor consideration. The first provision defined private State attorneys general actions as class actions within the meaning of the bill. These are statutory actions a private citizen can bring on behalf of the general public. My colleague from California, Senator Feinstein, expressed specific concern over this provision because she believed it would interfere with an existing California statute permitting such representative actions. This provision has remained out of the bill.

It is the second provision that necessitated the rule XIV alternative. This second provision is what we commonly refer to now as the mass actions provision. A mass action is a civil action seeking to try the claims en masse of all plaintiffs and defendants in a single trial, but pursued without the procedural due process prerequisites for litigating such a matter as a class action. Mass actions are used heavily in certain States such as West Virginia and have been used to unfairly consolidate for trial diverse claims of as many as 8,000 plaintiffs from over 35 States against over 250 defendants. These actions are especially problematic because they proceed without satisfying any of the standard class action prerequisites, such as commonality and typicality of claims.

Although the original bill contained a provision that defined mass actions to qualify as class actions, my colleague Senator Specter raised a specific concern over the scope of the provision and moved it be stricken. Because the committee didn't have a meaningful opportunity to evaluate the Senator's concerns before markup, I, as chairman, agreed to strike this provision, but only with the understanding that we would modify the provision and replace it before the bill reached the floor, which is exactly what we did.

After the extensive post-markup negotiations and other discussions among my staff and the staff of Senators Specter, Feinstein, Kohl, and Grassley, we were able to reach consensus on a revised mass actions provision in early September.

Let me stress there are no surprises here on what we were going to do with the mass actions provision. Everybody who appeared that day in the Judiciary Committee markup was aware the bill sponsors would work with the sponsors of the amendment, Senators Specter and Feinstein, to develop compromise language. Indeed, we called specific attention to this understanding in our committee report on S. 274, which has been widely and publicly available since last July.

As for using rule XIV, which is an effective rule in the Senate, a rule that can be legitimately used, and has been used in this case, we gave advance notice to our Democratic counterparts, Senators Feinstein and Kohl, over a month ago that there was a possibility we would have to use this procedural device to ensure the operative text reflected the understanding when the bill was reported out of committee.

I also understand from my staff that these offices then informed, among others, the ranking member on our committee about the potential use of the rule when we introduced S. 1751 last week. Simply put, we were open and above board. We didn't have to be, but we were. We didn't have to be because the rule is the rule. We are entitled to use it. The Democrats have used it time after time, as have Republicans. There are no surprises here. I was the most shocked to find claims that something somehow or another was askew and not properly handled. Again, that is pure bunk, and everybody knows it. But I suppose when we have television in the Senate, we are going to see that type of argument made from time to time, even though it doesn't hold water and can't stand the light of day.

We provided advance notice and opportunity to review the text to our Democratic sponsors and the sponsors of the amendment so they could all verify that no other changes were made. That is good faith, in my view. We gave advance notice of our intended use of this device for a provision we made clear to everyone we intended to modify. So I am particularly baffled as to why the ranking member of our committee is calling this a mystery. This is no mystery. We did exactly what we said we would do when we marked up this bill in committee, and the bill was voted out with a partisan vote of 12 to 7, but, of course, the distinguished Senator from Vermont didn't vote for the bill in committee. That may be what is behind these types of comments. He never has been for this bill.

I suspect all is fair in love and war. This being war, they can say whatever they want on the floor of the Senate, even though it is totally wrong.

I believe rule XIV is the most appropriate way of handling the unique set of circumstances leading to the revision of the class action provisions, especially in light of the limited number of days remaining in this session. Given the number of pressing appropriations issues facing the Senate in the coming months, I think it makes little sense to waste valuable floor time debating as a separate amendment a provision that the key Republican and Democratic members have already worked out in good faith. It is even more absurd to be forced to debate a motion to proceed to this bill.

There is only one reason for that. That is to delay, delay, delay, and hopefully bollix up everything at the end of this session so nothing good gets done. I ask my colleagues to support the motion to proceed to S. 1751, the rule XIV version, the Class Action Fairness Act of 2003.

A Senator got on the floor and made a number of what I thought were outrageous comments as well pertaining to this being a special interest piece of legislation. This is a people's bill. The biggest losers under the current system are the people. Lawyers sue companies and negotiate settlements in which they get all the money. So consumers get ripped off twice: Their lawyers rip them off by taking the settlement money that is supposed to go to them, and then they have to pay for the payoff to the lawyers at higher prices.

How about tax cuts for the wealthy? That was an argument made yesterday. The class action bill would not protect the wealthy. It is the opponents of the bill who are trying to protect the wealthy--the wealthy trial lawyers in this case. Although not all class action lawyers are to be criticized, some actually are good lawyers who actually do what is right within the law in fair class actions that really are brought to help people. We are talking about the ones who need to be reformed. Some of these wealthy lawyers who need reform amass their riches by ripping off consumers in bad settlements. We have shown that throughout this debate.

Senators raised the issue of defective products, protecting gun manufacturers. The only successful class action against gun manufacturers, the only case in which any relief was awarded was in Federal court. That is what we are trying to do here, and they act as if the Federal courts are not capable of handling these cases? This doesn't stop legitimate class actions. It just says there is no longer going to be these phony forum-shopped cases in corrupt jurisdictions where there are corrupt judges and where jurors don't realize they are saddling all of America with these outrageous verdicts that pay off the attorneys but do very little for consumers or for the plaintiffs who are supposedly the real victims.

We heard the argument yesterday that Justice Rehnquist is opposed to this bill. Opponents keep saying Chief Justice Rehnquist opposes the bill, but whenever we ask for a citation to that opposition, we get absolutely nothing. They talk about the Judicial Conference letters, but those letters do not express opposition to the bill that was reported out of committee.

How about forum shopping? Defendants cannot forum shop. The plaintiff always gets to choose where to file the lawsuit. If they file in State court, they can often choose precisely the judge who will hear the case. All the defendant can do is remove to Federal

court where the case will be heard by a randomly selected judge, not a stacked, forum-shopped deal with a corrupt judge or maybe not even a corrupt judge, but one who just believes the plaintiffs should win no matter what the facts are. Again, I think that is corruption. It is nonsense to say defendants can forum shop or that forum shopping is the purpose of this bill. That is nonsense. Yet that is what one of our distinguished Senators was saying yesterday.

How about the scalpel argument? Any suggestion that this class action problem is concentrated in a handful of State courts is wrong. It is a problem in many places, and if you fix it in one place, the party moves to some other court in some other town.

How about Madison County, IL, by the way? We had the two Senators from Illinois speak: One just found Madison County to be the most circumspect county in the world. The other basically called the judges and the lawyers, many of whom never practiced law in Madison County, people who were abusing the system. He even implied some of them were corrupt.

The figures in Madison County do indicate a problem. Look at the dramatic increase in the number of class actions, virtually all of which were nationwide class actions over a short period, an increase from 2 in 1998 up to over 75 last year. Why are all these people, all these attorneys from other States flocking to the middle of nowhere to file lawsuits in which none of the claimants and none of the defendants are from the area? Do we really need to ask why? We know why. Because of corruption--corrupt judges, or should we say misconceived judges, to be nice about it, or judges who always find for the plaintiffs or steer everything in favor of the plaintiffs or always find class actions to exist when they really shouldn't. That is corruption.

We hear statistics indicating half of the class actions have been certified, but what the distinguished Senator from Illinois should have said was ``certified so far.''

What I find curious is that the distinguished Senator from Illinois didn't give the number of class actions that were denied. What happens in Madison County is that the case is filed, and when the lawyer decides he wants to put the squeeze on the defendant to settle, he starts moving toward getting a class certified, but sometimes it takes a while.

By the way, just moving to get a class certified in Madison County where it is almost granted at will is enough to scare any corporation because once that happens, that corporation is in real trouble, and so are that corporation's employees who are likely to lose their jobs, their income, their health care, and their pensions if the company gets thrown into bankruptcy.

We have heard allegations that under the class action bill, a defendant can remove a case at any time, even on the eve of trial. The current removal statute, 28 USC section 1446(b), provides that a case must be removed to Federal court ``within 30 days after the defendant's receipt . . . of a copy of the [complaint] in the action.''

This class action bill would not change that rule. The allegation that a class action bill would allow a case to be removed to Federal court at any time is ridiculous. But that is what we are getting used to from those who argue against this issue.

Now why do they do that? Why can they not see these simple, easy to see facts of life? Well, I hate to say it but I think it comes down to the fact these trial lawyers are the biggest hard money funders of many of these people who will vote against this bill. They get whatever they pay for. They can rely on their friends in the Congress to ignore what really should be ethical and good changes in the law and to stand in the way of those changes. That is what is happening here.

That is taking the sugar coat off, but that is what is happening. The fact is that we have people in this body who will vote for the trial lawyers no matter how wrong they may be.

Now, when I say trial lawyers, I am speaking about this select group of trial lawyers who really are giving the legal profession a bad name, who are in it for the money so they can support their own political candidates, live in high style, be influential in their respective communities, most all of which are outside of Madison County, by the way, and who can just about afford to do anything they want to do and are used to doing anything they want to do.

I happen to know a lot of good trial lawyers who are honest and decent, who really fight hard for their plaintiffs, for people who were wronged, for victims, and who are disgusted with these trial lawyers who are taking procedural advantage, monetary advantage, of forum shopping in this country. It is coming to the point where even the American Trial Lawyers Association is starting to get split on these types of issues because they realize that some of these people are giving trial lawyers who are good, honest, decent, hard-working trial lawyers a bad name, because they are getting lumped into the term ``trial lawyers'' all the time with these people who are bad actors, who are in it for the money.

Now, they paint a very big picture about how they are in it for the little consumers, but look at the coupon settlements. Look at the amount of money they are getting in fees. Look at the way the consumers have been ripped off. Look at the cost to society. Look at the companies that are in shambles and can no longer employ people. Look at the unfairness of forum shopping. Look at the unfairness of corruption.

I commend trial lawyers who are honest and decent and who bring decent class actions. They know they can win in Federal court just as much as they can win in State court, but they also know they cannot forum shop as well in Federal courts.

Now, one can still forum shop but not nearly like they can in a number of jurisdictions in this country in certain counties where, as I say, judges are owned lock, stock, and barrel by various political interests.

Well, I have kept us long enough, but this is an important bill and to filibuster even the motion to proceed to the bill, at this late date, leads only to one conclusion and that is unfairness, delay, win at any cost, fear to debate this bill straight up and down, fear to have votes straight up and down. The reason they are afraid is because they know if Senators were permitted to vote their consciences this bill would pass overwhelmingly, if it were not for the untold influence of big class action money.

I yield the floor.

No question that we usually do not have a filibuster on a motion to proceed, because if any of my colleagues are going to filibuster, they should filibuster the bill. By filibustering the motion to proceed, they can delay a vote on that for 3 days. Then they can filibuster the bill and delay that for another 3 days, which eats up 6 days at a crucial time of the year when we are trying to do all of the appropriations bills, a prescription drug benefit and Medicare reform, asbestos reform, judges, a whole raft of other very important issues, including the Energy bill. So by eating up all this time it makes it difficult to pass any of these matters, and it makes one wonder what in the world is behind all of this.

It was a bipartisan supported bill. Democrats and Republicans support this bill. It will pass if Senators are permitted to vote their consciences and are permitted to vote up or down without the phony delays of a filibuster, especially a filibuster on the motion to proceed.

By the way, rule XIV is an effective rule of the Senate. Both sides have

used that in order to expedite consideration of matters and everybody understands that, and everybody can then debate.