Floor Statements

Mr. President, I rise in support of the Prevention and Recovery of Missing Children's Act. I especially want to commend my colleagues Senator Dodd and Senator Collins for their hard work on this important legislation.

Sex offenders prey upon the weakest and most innocent in our society--our youth--and in astonishing numbers. According to the National Center for Missing and Exploited Children, 3.9 million of the Nation's 22.3 million children between the ages of 12 and 17 have been seriously physically assaulted, and one in three girls and one in five boys are sexually abused before the age of 18. Even more troubling is the fact that most sex offenders are not in our prisons. Instead, they remain in our communities, often targeting their next victim. To illustrate, among the Federal Bureau of Investigation's `Most Wanted Fugitives' is a sex offender who allegedly sexually abused a 12-year old boy over a 6-year period

after he was released from prison for previous acts of sexual abuse.

Time and again we see convicted pedophiles kidnapping, brutally raping, and in some cases, murdering young children. Too often we are unable to thwart such heinous acts because recidivists succeed in evading State registration requirements after they have been convicted and released from prison. We have a duty to our children to ensure that we know where convicted sex offenders are at all times. We also have a duty to take every step to find our missing and exploited children promptly.

The Prevention and Recovery of Missing Children Act of 2003 will enhance our ability to track recidivists and find child victims by strengthening sexual offender registration laws and missing children reporting requirements. This legislation (1) requires States to register sexual offenders prior to their release from prison to ensure that they comply with sex registration requirements; (2) requires States to obtain a DNA sample, as well as a photo and fingerprints, from convicted sexual offenders; (3) requires convicted sexual offenders to obtain a driver's license or State identification card as an additional means of identification; (4) requires convicted sexual offenders to report any change in registration within 10 days; (5) requires convicted sexual offenders to verify their registration information every 90 days; (6) makes it a felony offense to fail to comply with any sexual registration requirement; and (7) strengthens the missing children reporting requirements that are imposed on States.

It is critical that the law enforcement community be able to track down known child predators and to find our missing and exploited children promptly. This legislation provides law enforcement with the tools they need to achieve these goals. I am committed to working with Senator Dodd and Senator Collins to enhance this valuable legislation even further.

Mr. President, I am pleased today to rise in support of S. Maurice Hicks, who has been confirmed to be a nominee to the U.S. District Court for the Western District of Louisiana.

Mr. Hicks has had a distinguished legal career. Upon graduation from Louisiana State University Law School, he worked for the Louisiana Legislative Council. Soon afterwards,

he began his 25-year career in private practice as an associate in a Shreveport law firm. He subsequently founded his own law firm and developed an expertise in commercial and insurance-related litigation in State and Federal courts, including general aviation accidents, automobile accidents, product liability, lender liability claims, construction disputes, intellectual property claims, and insurance coverage questions, as well as oil and gas accident and contamination claims. He also has a great deal of experience representing individuals on a wide variety of personal matters including estate planning, personal injury claims, contract negotiations, copyright issues, and general legal matters. All told, he has tried an estimated 150 cases to judgment, acting as sole or lead counsel in the vast majority of them. He has also devoted time in his legal career to pro bono work, including preparing wills for the elderly and working with adjudicated juveniles.

He is a member of the Louisiana State Bar, the American Bar Association, and the Shreveport Bar Association.

I am confident that Mr. Hicks's extensive litigation experience will make him an excellent addition to the Federal bench.

Mr. President, I ask unanimous consent a few remarks I make be as in morning business.

Mr. President, as everybody knows, I have been working for months--actually perhaps longer than that--on an asbestos reform bill to try to resolve the terrible asbestos problem we have in our society.

I have indicated various deadlines throughout these months which I have set.

I compliment the business community, the insurance community, the union community, and so many other companies that have been involved for their willingness to work with us. I think we are about there.

We have a bill I am going to print in the Record this evening so everybody who is interested in this issue can read it and review it because I intend to file a formal bill this Thursday. I would like to have as many cosponsors as I can get on it because it will be the only way we will get this problem solved.

This draft bill is not a formal bill. But I want it to be printed in the Record for all to see. It is a very important draft bill. I hope those who are interested will go over it with a fine-toothed comb and get with us over the next 2 days, if there are substantive suggestions they have. We will be happy to look at those.

This is basically what I intend to file as a formal bill this next Thursday. I hope I will have a number of my colleagues on both sides of the floor join with me.

I ask unanimous consent this draft bill be printed in the Record.

Mr. President, I rise today to introduce the ``Antitrust Improvements Act of 2003.'' I want to thank the Ranking Democrat Member from the Judiciary Committee, Senator Leahy, for joining me in introducing this measure as an original cosponsor. I hope that we can expeditiously report this measure from the Judiciary Committee and bring it to the Senate floor.

The Hatch-Leahy Antitrust Improvements Act of 2003 is long overdue. The bill updates the criminal penalties applicable to antitrust criminal violations and repeals the archaic Title VIII of the ``Antidumping Act of 1916,'' as requested by the administration.

After careful examination and study of the current penalty structure for antitrust criminal offenses, Senator Leahy and I have come to agreement that the law needs to be modernized in a number of areas. Under current law, a person who commits a criminal violation of the antitrust laws can be subject to maximum punishment of 3 years imprisonment, while a corporation can be fined a maximum of $10 million. These punishments need to be updated to reflect changes in market conditions, as well as to make them consistent with other changes we enacted last year to white collar criminal offenses as part of the Sarbanes-Oxley bill. Under the Hatch-Leahy proposal, the maximum punishment for an individual would be raised to 10 years imprisonment, and for a corporation the maximum fine would be increased to $100 million.

These changes are long overdue and will eliminate the huge disparity present in our laws between the treatment of criminal white collar offenses and antitrust criminal violations. The Sarbanes-Oxley Act passed last year raised the criminal penalties for a number of white collar offenses, but did not do so for antitrust criminal violations. An antitrust price-fixer who defrauds consumers for a total of $5 million should be subject to a penalty which is more consistent with the penalty scheme for other white collar offenses. There is little difference, in my mind, between a market place criminal who takes advantage of consumers and a white collar cheater who steals money from his victims.

The Hatch-Leahy proposal also will raise the maximum fines applicable to corporations and other legal entities from $10 million to $100 million per violation. Such a change is needed to reflect the change in our economy and the importance of maintaining a credible deterrent against such conduct by corporations and other entities.

It is also essential to note that all criminal fines are paid into a Victims Fund, which is administered by the Justice Department, and ultimately disbursed to support victims' advocacy groups. Criminals who have assets must first pay restitution to any identifiable victims to compensate them for their suffering, and then must pay

fines to the Victims Fund. The increased criminal fines will enhance the Justice Department's ability to support advocacy groups who work so hard on behalf of the victims of crime across America.

The Antitrust Division's criminal enforcement program has been very successful in the past years, particularly in the area of criminal enforcement against international cartels affecting well over $10 billion in commerce. With these new tools, the Antitrust Division can be even more effective in enforcing our antitrust criminal laws and deterring and preventing future offenses against American consumers.

This bill also repeals an archaic provision of law, enacted in 1916, that allows private lawsuits with potential of treble damages against importers or producers for unfair pricing provided they had the intent to injure a U.S. industry. The World Trade Organization, WTO, has ruled that this act violates the United States obligations to address unfair pricing through the specified administrative measures of the Antidumping Agreement. Repealing this statute is an important and necessary step in complying with our obligations under negotiated international treaties.

I urge my colleagues to support these important measures and support the Antitrust Improvements Act of 2003.

Mr. President, I rise today to introduce the ``Antitrust Improvements Act of 2003.'' I want to thank the Ranking Democrat Member from the Judiciary Committee, Senator Leahy, for joining me in introducing this measure as an original cosponsor. I hope that we can expeditiously report this measure from the Judiciary Committee and bring it to the Senate floor.

The Hatch-Leahy Antitrust Improvements Act of 2003 is long overdue. The bill updates the criminal penalties applicable to antitrust criminal violations and repeals the archaic Title VIII of the ``Antidumping Act of 1916,'' as requested by the administration.

After careful examination and study of the current penalty structure for antitrust criminal offenses, Senator Leahy and I have come to agreement that the law needs to be modernized in a number of areas. Under current law, a person who commits a criminal violation of the antitrust laws can be subject to maximum punishment of 3 years imprisonment, while a corporation can be fined a maximum of $10 million. These punishments need to be updated to reflect changes in market conditions, as well as to make them consistent with other changes we enacted last year to white collar criminal offenses as part of the Sarbanes-Oxley bill. Under the Hatch-Leahy proposal, the maximum punishment for an individual would be raised to 10 years imprisonment, and for a corporation the maximum fine would be increased to $100 million.

These changes are long overdue and will eliminate the huge disparity present in our laws between the treatment of criminal white collar offenses and antitrust criminal violations. The Sarbanes-Oxley Act passed last year raised the criminal penalties for a number of white collar offenses, but did not do so for antitrust criminal violations. An antitrust price-fixer who defrauds consumers for a total of $5 million should be subject to a penalty which is more consistent with the penalty scheme for other white collar offenses. There is little difference, in my mind, between a market place criminal who takes advantage of consumers and a white collar cheater who steals money from his victims.

The Hatch-Leahy proposal also will raise the maximum fines applicable to corporations and other legal entities from $10 million to $100 million per violation. Such a change is needed to reflect the change in our economy and the importance of maintaining a credible deterrent against such conduct by corporations and other entities.

It is also essential to note that all criminal fines are paid into a Victims Fund, which is administered by the Justice Department, and ultimately disbursed to support victims' advocacy groups. Criminals who have assets must first pay restitution to any identifiable victims to compensate them for their suffering, and then must pay

fines to the Victims Fund. The increased criminal fines will enhance the Justice Department's ability to support advocacy groups who work so hard on behalf of the victims of crime across America.

The Antitrust Division's criminal enforcement program has been very successful in the past years, particularly in the area of criminal enforcement against international cartels affecting well over $10 billion in commerce. With these new tools, the Antitrust Division can be even more effective in enforcing our antitrust criminal laws and deterring and preventing future offenses against American consumers.

This bill also repeals an archaic provision of law, enacted in 1916, that allows private lawsuits with potential of treble damages against importers or producers for unfair pricing provided they had the intent to injure a U.S. industry. The World Trade Organization, WTO, has ruled that this act violates the United States obligations to address unfair pricing through the specified administrative measures of the Antidumping Agreement. Repealing this statute is an important and necessary step in complying with our obligations under negotiated international treaties.

I urge my colleagues to support these important measures and support the Antitrust Improvements Act of 2003.

Mr. President, I rise to speak in support of the pending legislation.

I think it is important for the Senate to endorse the work of the House on the issue of international AIDS funding.

As with many of our colleagues, I was absolutely thrilled to hear President Bush use the State of the Union Address as an occasion to display his leadership on the critical issue of the pandemics of HIV, tuberculosis, and malaria in Africa, the Caribbean, and the developing world.

We must give President Bush, Vice President Cheney, and Secretaries Powell and Thompson a lot of credit for urging the Congress and American public to give a higher priority and more resources to these deadly, intertwined epidemics. An estimated 30 million of our African neighbors are infected with HIV. About 11,000 Africans become infected each day.

Tragically, of the 25 million who have died due to HIV infection worldwide, about 20 million, or 80 percent, were Africans. Unfortunately, it is likely that many more millions will follow them to an early death unless significant efforts are made to turn the tide of these epidemics. For example, about 40 percent of the citizens of Botswana are infected with HIV and the infection rate in many other countries is in the 1-in-5 and 1-in-4 range.

The Bush administration deserves a lot of credit for making this issue a priority at a time when the Federal budget is once again facing severe strains.

If our Nation takes a leadership role in helping nations in the developing world address the problems associated with infectious diseases such as HIV, TB, and malaria, these nations will remember us as an ally who helped them when they most needed aid.

Let me be frank. There are many citizens in the developing world who sometimes question the motives of the United States in international affairs. We saw this dynamic at play in the debates leading up to and in the aftermath of the recent war in Iraq.

It seems to me that in undertaking this important public health initiative at this time when we are once again struggling to regain control of the Federal budget--there can be no question that the motive of our country is nothing more than to try to help millions of people from perishing from a group of deadly infectious diseases that threaten to destabilize sub-Saharan Africa and the Caribbean for decades to come. If such longtime NATO allies such as France and Germany do not see eye to eye with us on certain aspects of Mideast policy, perhaps they and the rest of the developed world can agree with us that now is the time to roll up our sleeves and make the commitment of necessary resources to help those developing nations fight the interconnected scourge of HIV, TB, and malaria.

This is exactly the type of challenge that President Bush will issue at the upcoming G-8 meeting. I hope and trust that the leaders of these countries will work together with us on reversing the course of these epidemics.

I have been active in developing legislation related to AIDS since the onset of the epidemic. In my former capacity as a member--and chairman--of the Senate Labor Committee, I was a coauthor of the Ryan White CARE Act, the Terry Beirn AIDS Research Act, and worked to increase appropriations for research and services related to AIDS.

I am a conservative. I share the concerns many have expressed that this bill could fund activities with which we disagree. To be clear, I very much disapprove of many of the behaviors by which HIV is transmitted.

That being said, early on in this epidemic, I learned the wisdom of the old adage, ``Hate the sin, but love the sinner.''

High-risk behaviors--for example, intravenous drug abuse--are hard to break. But, as a society, can we use behaviors with which many of us vigorously disagree as an excuse to abandon our responsibility to help individuals who are trying to kick their dependency on drugs? I think not.

It is important to employ proven public health strategies to prevent the spread of HIV, even if some of these techniques and educational messages can be viewed as controversial if taken

out of context of a public health crisis. We must also recognize geographic differences in what strategies are most proven and acceptable. Appropriate public health education prevention and education tactics are often different in Salt Lake City and New York City, or for that matter, Ho Chi Minh City.

There was a spirited debate in the House over the proper balance between abstinence and other risk reduction techniques such as the role of condoms. I don't want to replay the whole debate over the rule that 33 percent of prevention funds must be devoted to reenforcing an abstinence message. I believe in abstinence. I also am mindful of the fact that in some geographic regions such an inflexible rule may not represent an optimum use of prevention dollars.

There are elements of the House bill that I do not like. But I must salute the efforts of Chairman Hyde and Representative Lantos for working so long and hard to find a consensus and get this legislation out of the House.

Let me just add that I have heard the frequent--and not unjustified complaints to my mind--of the House leaders who observe that they are often faced with the prospect of passing what they consider watered down Senate versions of legislation after the House has taken action. It is well known that the House majority leadership views the tax legislation we just adopted earlier this evening to be a prime example of this dynamic.

When all is said and done, the Constitution set forth a bicameral legislative body with different membership criteria and different election cycles. It is not surprising that it is often the case that the House and Senate come up with different legislative provisions. In the normal case, these differences can be ironed out by the vehicle of a conference committee.

However, sometimes the regular order of the conference report is in tension with outside events. The case of the upcoming G-8 meeting is just one of those circumstances. As my friend Chairman Hyde wrote in an op-ed piece earlier this week, the development of a Senate version of the bill--normally a positive--may have a material adverse effect of the very type of international cooperation that the bill seeks to kindle and redouble.

As Congressman Hyde noted, ``A new bill only delays the pressure on House and Senate appropriators to pony up the $15 billion requested by the President over the next five years. . . .

`` . . . for the President in his meeting with G-8 leaders in June, a new bill only delays an opportunity he will have at this meeting to use enactment of this legislation to leverage support for worldwide AIDS efforts from our wealthy partners.''

We need to take this view into account. I say this as one for whom the version of the bill developed and introduced by Senators Lugar, Kerry, and Biden is more attractive than what emerged from the House. All in the Senate should commend Senators Lugar, Kerry, Biden, and Frist for their longstanding leadership in this area. From a purely public health standpoint, I think their legislation has a number of advantages over the House bill that we are taking up on the floor today.

I also have the utmost respect and praise for what the House accomplished by passing a bill that resolved a number of very difficult issues that lingered for many months. I want to associate myself with the remarks made earlier today by Chairman Lugar and Senator Biden in which they took the position that, despite the Lugar-Kerry-Biden bill's many virtues, the bottom line reality is that to go to conference with a new Senate version of the bill is to risk losing a critical opportunity at the G-8 meeting.

Our majority leader, Dr. Frist, who has spent so much of his own time helping the people of Africa, also noted that the bill he called up may not be the perfect bill, but it represents a major step forward in advancing the program that President Bush laid out in the State of the Union Address.

As the great philosopher Mick Jagger once noted, you can't always get what you want, but sometimes you find you get what you need.

I think that the President's $15 billion proposal and the House bill are exactly what the people of Africa and the Caribbean need. Although I can think of some ways to refine the House language--as Senators Lugar, Kerry, and Biden have suggested, my view is that we can not let the perfect become the enemy of the very good.

I urge my colleagues to support H.R. 1298. It is a good bill. The House worked for a long time and came up with a product of which we can all be proud and supportive. We will have ample opportunity in the months ahead and during the appropriations process to fine tune this legislation. But I agree with Senator Frist, let's get this done job done.

Now is the time to send the President to France with an enacted bill with which he can attempt to leverage additional support from our closest allies. Being able to put the $15 billion bill on the table as a finished product will do much more benefit than a progress report on the Conference Committee.

I believe that H.R. 1298 will be viewed as an important step forward with respect to public health. I cannot help but think that many of the developing world--the very same people we want to enlist with us to fight the battle against terrorism and to resist the entreaties of those who seek to undermine the role of America in world affairs--will take note of our action tonight. They will see that, even at a time when the domestic U.S. economy is struggling to recover, Americans found both the will and wallet to launch a major humanitarian effort against diseases that are severely lowering the quality of life in the developing world.

Mr. President, I support H.R. 1298 as a clean bill. I urge my colleagues to support this important measure.

Mr. President, I rise today to offer my support for the introduction of this resolution which offers a more than reasonable proposal to fix a confirmation process that Members on both ides of the aisle agree is broken.

Simultaneous filibusters of two circuit court nominees who would clearly be confirmed in up-or-down votes are unprecedented. From what I understand, the minority has plans for even more filibusters of judicial nominees. The resulting politicization of the confirmation process threatens the untarnished respect in which we hold our third branch of Government--the one branch of Government intended to be above political influence.

There is also a significant constitutional consideration at stake here. In its enumeration of Presidential powers, the Constitution specifies that the confirmation process begins and ends with the President. The Senate has the intermediary role of providing advice and consent. Here is the precise language of article II, section 2:

The President . . . shall nominate, and by and with the

Advice and Consent of the Senate, shall appoint . . .

Ambassadors, other public Ministers and Consuls, Judges of

the Supreme Court, and all other Officers of the United

States, whose Appointments are not herein otherwise provided

for, and which shall be established by Law[.]

There is no question that the Constitution squarely places the appointment power in the hands of the President. As Alexander Hamilton explained the The Federalist No. 66:

It will be the Office of the President to nominate, and,

with the advice and consent of the Senate, to appoint. There

will, of course, be no exertion of choice on the part of the

Senate. They may defeat one choice of the Executive, and

oblige him to make another; but they cannot themselves

choose--they can only ratify or reject the choice he may have

made.

It is significant that the Constitution outlines the Senate's role in the appointments process in the enumeration of Presidential powers in article II, rather than in the enumeration of congressional powers in article I. This choice suggests that the Senate was intended to play a more limited role in the confirmation of Federal judges.

Hamilton's discussion of the appointments clause in The Federalist No. 76

supports this reading. Hamilton believed that the President, acting alone, would be the better choice for making nominations, as he would be less vulnerable to personal considerations and political negotiations than the Senate and more inclined, as the sole decision maker, to select nominees who would reflect well on the presidency. The Senate's role, by comparison, would be to act as a powerful check on ``unfit'' nominees by the President. As he put it, ``[Senate confirmation] would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.'' This is a far cry from efforts we have seen over the past couple of years to inject ideology into the nominations process, and to force nominees to disclose their personal opinions on hot-button and divisive policy issues like abortion, gun control, and affirmation action.

Historically, deliberation by the Senate could be quite short, especially when compared to today's practice. Take, for example the 1862 nomination and confirmation of Samuel F. Miller to the U.S. Supreme Court. He was nominated, confirmed, and commissioned all on the same day! The Senate formally deliberated on his nomination for only 30 minutes before confirming him. His experience was not the exception. Confirmations on the same day, or within a few days, of the nomination were the norm well into the 20th century.

Contrast the nominations of Miguel Estrada and Priscilla Owen. They were appointed 2 years ago and have yet to be afforded an up-or-down vote by the Senate. Mr. Estrada has now endured six cloture votes more than 3 months after debate on his nomination began. Justice Owen's nomination has been subjected to two cloture votes. Clearly, this is a far cry from the role for the Senate that the Framers contemplated. What was enumerated in the Constitution as advice and consent has in practice evolved to negotiation and cooperation in the best cases, and delay and obstruction in the worst cases--like that of Mr. Estrada and Justice Owen.

The Estrada and Owen nominations illustrate what is wrong with our current system of confirming nominees. Despite a bipartisan majority of Senators who stand ready to vote on these nominations, a vocal minority of Senators is precluding the Senate from exercising its advice and consent duty. This is tyranny of the minority, and it is unfair.

It is unfair to the nominee, who must put life on hold while hanging in endless limbo. It is unfair to the judiciary, our co-equal branch of Government, which needs its vacancies filled. It is unfair to our President, who has a justified expectation that the Senate will give his nominees an up-or-down vote. And it is unfair to the majority of Senators who are prepared to vote on this nomination.

Many of my colleagues, both Republicans and Democrats, agree that the confirmation process is broken. Senator Feinstein stated in a recent letter to the White House that the judicial confirmation process is ``going in the wrong direction'' and is potentially ``spiral[ing] out of control.'' Senator Schumer has also indicated that his goal is to repair the ``broken'' judicial confirmation process and the ``vicious cycle'' of ``delayed'' Senate nominees.

The resolution submitted today sets forth a proposal that strikes a balanced solution by allowing for ample, yet not endless, debate on nominations. It provides that cloture may be filed only after a nomination has been pending before the Senate for a minimum of 12 hours. Sixty votes are required to invoke cloture on the first motion. After that, the number of required votes on successive cloture motions would decrease to 57, then to 54, then finally to a simple majority of Senators present and voting. A successive cloture motion cannot be filed until disposition of the prior cloture motion, thereby ensuring that a nomination cannot be confirmed by a simple majority vote until a minimum of 13 session days have elapsed.

This proposal has its roots in S. Res. 85, which was submitted by Senator Miller on March 13 of this year. In addition, it is similar to a 1995 proposal of Senator Harkin and Senator Lieberman, which also provided for graduated vote requirements to invoke cloture. In support of their proposal, Senator Harkin stated, ``I may not agree with everything that Republicans are proposing, but they are in the majority and they ought to have the right to have us vote on the merits of what they propose.'' With regard to judicial nominations, I could not agree more.

Senator Harkin also cited the research of a bipartisan group named ``Action Not Gridlock,'' which commissioned a poll in the summer of 1994 showing that ``80-percent of independents, 74-percent of Democrats, and 79-percent of Republicans said that when enough time was consumed in debate, that after debate a majority ought to be able to get the bill to the floor. That a majority ought to be able, at some point, to end the debate.'' I would be surprised if a similar poll today would yield substantially different results. I think that the American people understand the fundamental injustice of a minority's ability to block an up-or-down vote on nominations.

In support of their 1995 proposal, Senator Lieberman stated, ``Some say there is a danger of a tyranny of the majority. I say that there is a danger inherent in the current procedure of a tyranny of the minority over the majority, inconsistent with the intention of the Framers of the Constitution.'' Today, the ``tyranny of the minority'' to which Senator Lieberman referred over 8 years ago is in effect and wielding the filibuster in a most unjust manner against President Bush's exceptional nominees who have bipartisan support. I support today's resolution because it will dilute the tyrannical power of the filibusters against these nominees.

I have alluded to my frustrations with the current filibusters of President Bush's nominations. But the bottom line is this: many of us agree that we must try to repair the broken confirmation process. A bipartisan majority of Senators stands ready to vote on the two nominees who are currently being filibustered. This resolution is a reasonable accommodation that preserves the opportunity for extended debate, yet allows Senators to, eventually, do their duty and vote. I hope that my colleagues will support this resolution.

Mr. President, I ask unanimous consent the Senate now stand in recess until 3:20 p.m.

Of course.

Mr. President, I renew my request to have the Senate stand in recess until 3:20 p.m.

Mr. President, I rise in opposition to Senator Feinstein's amendment. While I appreciate the efforts by Senator Feinstein to draft a fix to the lone wolf terrorist problem under the Foreign Intelligence Surveillance Act of 1978, referred to as ``FISA'', the amendment simply will not do the job and will continue to expose our country to great national security risks. I will not and cannot accept such risks.

Let me be more specific as to my concerns. First, as drafted, the amendment would create only a permissive presumption to authorize a court to approve a Foreign Intelligence Surveillance Act, ``FISA'', application when presented with a lone wolf situation. As drafted, the proposal would provide only that the court ``may'' find the existence of a ``presumption'' that a non-U.S. person engaged in sabotage or international terrorism is an agent of a foreign power under FISA.

A permissive presumption creates a significant risk that the FISA court may not be authorized--or may feel constrained to exercise its discretion--to approve a FISA application when presented with a lone wolf terrorist who would otherwise be covered by the Kyl-Schumer-Biden- DeWine approach.

Second, the amendment does not clearly delineate how a permissive presumption would be applied by the FISA court. Assuming that the FISA court exercises its discretion and makes a finding that the presumption applies, the FISA court would then have to consider additional evidence in order to grant the application.

The amendment does not specify beyond the permissive presumption what specific evidence or what other findings would have to be made in order for the FISA court to approve the application.

In sum, by injecting a significant level of uncertainty into the FISA process, the amendment simply creates or even exacerbates the problem which it is intended to fix. We simply cannot take such a risk given the potential devastating consequences posed by the lone wolf terrorist.

I would note here that in a letter dated April 30, 2003, the administration opposed this proposal, citing the fact that the effect of the proposal was unclear and that the proposal did not provide any standards to the FISA court to guide the exercise or its discretion.

In contrast, the Kyl-Schumer-Biden-DeWine proposal creates clear definitions and would minimize uncertainty in an area where ambiguity could have devastating consequences--that is, where we are in danger of a terrorist attack by a lone wolf.

For these reasons, I oppose the Feinstein amendment and urge my colleagues to vote against the Feinstein amendment.

I yield the floor.

Mr. President, I commend Senators Kyl, Schumer, Biden and DeWine for their bipartisan cooperation in supporting S. 113. This bill will provide a critical tool needed by law enforcement and intelligence agencies to fight the war against terrorism. Specifically, S. 113 will address a glaring omission in the Foreign Intelligence Surveillance Act of 1978 referred to as FISA, to authorize the gathering of foreign intelligence information relating to a lone-wolf terrorist, that is, a non-U.S. person who is engaged in international terrorism or preparation thereof. In recognition of the critical need to support law enforcement and intelligence agencies in

the war against terrorism, the Judiciary Committee passed S. 113 by a bipartisan, unanimous vote of 19 to 0.

This bipartisan proposal will enhance the ability of the FBI and intelligence agencies to investigate, detect, and prevent terrorists from carrying out devastating attacks on our country. Specifically, S. 113 will amend the Foreign Intelligence Survelliance Act to include lone-wolf terrorists who engage in international terrorism or activities in preparation thereof without a showing of membership in or affiliation with an international terrorist group. A significant gap in the current statute exists with respect to application of the foreign power requirement to lone-wolf terrorists. S. 113 would authorize FISA surveillance or searches when law enforcement and intelligence agents identify an individual involved in international terrorism but cannot link the terrorist to a specific group.

The administration strongly supports amending FISA to include non- U.S. lone-wolf terrorists. On March 4, 2003, at a Judiciary Committee hearing examining the war on terrorism, both Attorney General Ashcroft and FBI Director Mueller indicated their strong support for fixing this glaring omission in the FISA statute. In fact, Director Mueller testified, both before the Judiciary Committee and previously before the Senate Select Committee on Intelligence, there is an increasing threat of lone extremists who have the motive and ability to carry out devastating attacks against our country.

We need to provide law enforcement and intelligence agencies with the tools needed to protect our country from deadly terrorist attacks. With our recent success in the war against Iraq, the risk of terrorist attacks against our country may well rise. We need to ensure that our country has the ability to investigate and prevent such attacks if carried out by a lone extremist.

While some interest groups that oppose this measure suggest that such a fix is not needed or claim that the FBI failed to properly apply the law in the Moussaoui investigation, that is simply beside the point: The September 11 attack against our country highlighted the need to fill in this gap in the FISA statute.

FISA provides that electronic surveillance or physical searches may be authorized when there is probable cause to believe that the target is either an agent of, or is himself, a ``foreign power''--a term that is currently defined to include only foreign government or international terrorist organizations. Requiring a link to government or international terrorist organizations may have made sense when FISA was enacted in 1978; in that year, the typical FISA target was a Soviet spy or a member of one of the hierarchical, military-style terror groups of that era.

Today the United States faces a much different threat. We are principally confronted not by specific groups or governments, but by a movement of Islamist extremists which does not maintain a fixed structure or membership list, and its adherents do not always advertise their affiliation with this cause. Moreover, in response to our country's efforts to fight terrorism worldwide, terrorists are increasingly operating in a more decentralized manner, far different from the terrorist threat that existed in 1978. The threat posed by a lone terrorist may be very real and may involve devastating consequences, even beyond those suffered by our country on September 11. Given this increasing threat, we have to ensure that intelligence and law enforcement agencies have sufficient tools to meet this new-- and even more dangerous--challenge.

While I support S. 113, as passed by the Judiciary Committee, I wish to note my concerns about the amendment offered by Senator Feingold, which has been agreed to, as part of consideration of this matter.

The Feingold amendment would impose new FISA reporting requirements on the Justice Department, and require: (1) reports on the number of U.S. persons targeted by FISA order, by specific categories of surveillance, for example, electronic surveillance, physical searches, pen registers, and access to records; (2) identification of individuals who ``acted wholly alone;'' (3) disclosure of the number of times FISA material was used in a criminal proceeding; and (4) disclosure of portions of FISA pleadings and orders that deal with significant questions of law ``in a manner consistent with the protection of the national security of the United States.''

As I have indicated on other occasions, I support reporting requirements when necessary for Congress to exercise responsible oversight. We have a duty to conduct meaningful oversight of the FISA process, and I am committed to such oversight and ensuring proper reporting requirements are imposed on the Justice Department.

My concern with the Feingold amendment is that the operation of the amendment is unclear and may create confusion rather than bringing clarity to the issue. I would have preferred that we conduct a more deliberate examination of this issue to ensure that the reporting requirements are not harmful and will not create any significant risk of harm to sensitive law enforcement and intelligence operations against terrorists.

More significantly, I am concerned that the Feingold amendment will alter well-established procedures for Congress's review and handling of classified operational intelligence information, in contrast to Congress's review and handling of ``finished'' intelligence information. For many years, and in fact the reason for the creation of the Senate Select Committee on Intelligence was to establish a professional, dedicated Intelligence Committee staff which would handle sensitive operational intelligence information. Congress did so to minimize the potential risk of harm to foreign counterintelligence operations. The accidental or inadvertent disclosure of such material could have a devastating impact on extremely sensitive CIA or FBI counterintelligence operations.

Further, the Senate Select Committee on Intelligence rejected a similar reporting proposal in 1984 because ``the benefits of such disclosure for public understanding of FISA's impact would not outweigh the damage to FBI foreign counterintelligence capabilities that can be reasonably expected to result.''

The FISA statute already sets forth detailed and specific requirements for the reporting of information to the Intelligence and Judiciary Committees, and there is simply no need to disrupt long- established processes and procedures for FISA reporting between the executive branch and the Intelligence and Judiciary Committees relating to the handling of classified operations intelligence information.

While I have these concerns about the Feingold amendment, on balance, I believe that fixing the FISA statue to address the long-wolf terrorist problem is more important than remedying the deficiencies in the Feingold amendment. The potential harm to our country from a lone- wolf terrorist attack is significant and we must act--and act now by passing A. 113.

Again, I commend Senators Kyl, Schumer, Biden, and DeWine for this important piece of legislation which reflects our bipartisan commitment to ensuring the safety of our country and the need to be vigilant in protecting our country from deadly and devastating terrorist attacks. I urge my colleagues to vote in favor of S. 113.

I ask unanimous consent that the Senate immediately proceed to executive session to consider the nomination of John Roberts, to be a circuit judge for the DC Circuit.

Mr. President, I am pleased that we are considering the nomination of John Roberts, who has been nominated by President Bush to serve on the United States Court of Appeals for the District of Columbia.

Mr. Roberts was first nominated to this post by President George H.W. Bush in 1992. He has been nominated for this post by two different Presidents on three separate occasions, and has waited more than 11 years for his confirmation, so I am glad to see that this day has finally come when we can expect a vote by the full Senate on his nomination.

Mr. Roberts has exceptional experience as a Supreme Court and appellate advocate. He has argued an astounding 39 cases before the Supreme Court and has argued in every Federal circuit court of appeals. His Supreme Court practice consists of seeking and opposing Supreme Court review, preparing amicus curiae briefs, and helping to prepare other counsel to argue before the Court. His clients have included large and small corporations, trade organizations, nonprofit organizations, States, and individuals.

Mr. Roberts is one of the most accomplished and brilliant legal minds that I have seen in my 27 years as a member of the Senate Judiciary Committee. Not surprisingly, the ABA awarded him its highest possible rating of unanimously well-qualified. He is widely regarded as one of the best appellate attorneys of his generation. After reviewing his legal accomplishments it is easy to see why his colleagues have such respect and admiration for him. I would like to read excerpts from a few of the many letters his colleagues have sent the committee discussing his professionalism, character, and open-mindedness.

The first letter is from 156 members of the Bar of the District of Columbia, including such legal powerhouses as Boyden Gray, who was counsel to the first President Bush, and Lloyd Cutler, who was counsel to President Carter and Clinton. The letter states:

Although, as individuals, we reflect a wide spectrum of

political party affiliation and ideology, we are united in

our belief that John Roberts will be an outstanding federal

court of appeals judge and should be confirmed by the United

States Senate. He is one of the very best and most highly

respected appellate lawyers in the nation, with a deserved

reputation as a brilliant writer and oral advocate. He is

also a wonderful professional colleague both because of his

enormous skills and because of his unquestioned integrity and

fair-mindedness. In short, John Roberts represents the best

of the bar and, we have no doubt, would be a superb federal

court of appeals judge.

The committee also received a letter signed by 13 of his former colleagues at the Office of the Solicitor General. The letter states:

Although we are of diverse political parties and

persuasions, each of us is firmly convinced that Mr. Roberts

would be a truly superb addition to the federal court of

appeals. As the Committee will doubtless hear from many

quarters, John is an incomparable appellate lawyer. Indeed,

it is fair to say that he is one of the foremost appellate

lawyers in the country. . . . The Office then, as now,

comprised lawyers of every political affiliation--Democrats,

Republicans, and Independents. Mr. Roberts was attentive to

and respectful of all views, and he represented the United

States zealously but fairly. He had the deepest respect for

legal principles and legal precedent--instincts that will

serve him well as a court of appeals judge.

Now I would like to make a few comments about Mr. Roberts's impressive background. He entered Harvard College with sophomore standing, where he earned a bachelor's degree in history, summa cum laude, then a law degree, magna cum laude. While in law school, he was an editor of the Harvard Law Review.

Following graduation, Mr. Roberts clerked for Judge Henry Friendly on the Second Circuit and for then-Justice William Rehnquist on the Supreme Court. His public service career included terms as Associate Counsel to President Reagan and Principal Deputy Solicitor General. He currently heads the appellate practice group for the prestigious DC law firm Hogan and Hartson, where his practice has focused on Federal appellate litigation.

Mr. Roberts has been involved with a variety of high-profile and significant legal cases. He has argued on different sides of a variety of different issues, firmly establishing his reputation as a lawyer's lawyer.

Beyond being considered by many to be one of the premier Supreme Court litigators of his generation, the record of John Roberts establishes that he is undeniably mainstream and fair. In fact, while in private practice Mr. Roberts has repeatedly been hired by Democratic public officials and has repeatedly argued what many consider to be the so-called liberal side of cases.

In protecting the environment during the 2002 case of Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, Mr. Roberts successfully argued in the U.S. Supreme Court, on behalf of a State regulatory agency, in favor of limits on property development and in support of protection of the pristine Lake Tahoe Basin area. Environmental groups hailed the majority decision, saying it would help protect America's countryside from suburban sprawl.

In supporting consumer rights during the 2001 landmark Microsoft antitrust case, Mr. Roberts argued on behalf of the Clinton Department of Justice and a group of primarily Democratic State attorneys general that Microsoft's business practices violated the Sherman Act.

In addition, Mr. Roberts has devoted much of his time to pro bono work. For instance, he represented a class of District of Columbia residents receiving welfare benefits, arguing that a particular change in eligibility standards that resulted in a termination of welfare benefits without an individual hearing denied class members procedural due process.

In another pro bono case, United States v. Halper, Mr. Roberts was invited by the Supreme Court to represent Mr. Halper, who had been previously convicted under Federal criminal law for filing false Medicaid claims.

He successfully argued that the Double Jeopardy Clause barred the imposition of civil penalties under Federal law against an individual who had been convicted and punished under criminal law for the same conduct.

Mr. Roberts also participates extensively in the pro bono program of his firm, assisting his colleagues prepare pro bono appeals on matters such as termination of parental rights, minority voting rights, noise pollution at the Grand Canyon, and environmental protection of Glacier Bay.

I have every confidence that Mr. Roberts will make a great addition to the DC Circuit. He is an exceptionally well-qualified jurist who has distinguished himself as one of the best in the legal profession. I am confident that Mr. Roberts will serve with distinction on the DC Circuit, and I ask for my colleagues' full support of his nomination.

Mr. President, I ask unanimous consent that the nomination be confirmed, the motion to reconsider be laid upon the table, the President be immediately notified of the Senate's action, and the Senate then return to legislative session.

I move to reconsider the vote.

He has waited 12 years, through three nominations, by two different Presidents.

Keep in mind, as of tomorrow, those two will be waiting for 2 solid years. We need to get them done, too. I call on my colleagues on the other side to get rid of their wicked and evil ways and allow these people to have votes up and down.

I heard an objection from the other side.

I yield the floor.

I ask unanimous consent that the committee amendments be withdrawn.

I send a substitute amendment to the desk.

Mr. President, I thank my colleague for his excellent remarks. My colleague from Idaho has been a formidable force in the Senate for many years and he has done a terrific job, and these particular remarks I agree with and associate myself with.

Mr. President, I want to take a few moments this morning to share with my colleagues an article that recently appeared in the Washington Times about what may happen if there is a Supreme Court vacancy this year. I hope this article is wrong because it will be a sad day for America if its predictions come true. But I am going to talk about this article because I think its predictions might come true in this bitter, partisan Senate that exists today.

This article, written by James L. Swanson of the Cato Institute, is entitled, Forthcoming Clash for the Court. Let me take a moment to share with my colleagues the dire forecast this article sets forth. It begins:

At the Supreme Court of the United States, October Term

2002 is drawing to a close. The justices hear their last oral

arguments on April 30, and in late June they will take to the

bench for the last time to announce their final opinions of

the term. Court watchers await decisions in several important

cases, including free-speech and affirmative-action issues,

which may not come down until the last day of the term. But

that is not the only reason why court watchers have circled

the last week in June on the calendar. That is when

oddsmakers are betting on the retirement of at least one

member of the court.

For months, pundits have speculated that Chief Justice

William H. Rehnquist, Justice Sandra Day O'Connor or Justice

John Paul Stevens will step down this year. Why?

Because justices traditionally retire under the political

party that appointed them, and this is the last chance for

these three Republican appointees to retire during President

Bush's first term with the assurance that he can fill a

vacancy before the 2004 election.

Because, in the case of the chief justice, he has, in three

decades of service, gone from lone dissenter to leader of the

court's return to the first principles of limited government

and federalism, and will go down as one of the most important

chief justices in history.

I agree with that assessment. I agree the author is right on that. Chief Justice Rehnquist has been a remarkable chief justice and the Court has done some remarkable things under his leadership. But the article goes on to say:

Because, in the case of Justice O'Connor, the press spread

rumors that she wanted to retire.

Because, in the case of Justice Stevens, he is 83 years

old.

Both are excellent people and excellent leaders. Let me go on:

It is impossible to know whether these or any other members

of the Supreme Court are planning to retire this year. Many

self-styled experts have embarrassed themselves by attempting

to predict a justice's vote in a single case, let alone a

retirement from the bench. Nor is this to suggest that any

of the nine justices should retire. The performance of the

oldest justice (John Paul Stevens), to the youngest

(Clarence Thomas), of the longest serving (William H.

Rehnquist) to the briefest (Stephen Breyer), reveals that

all remain able and engaged. Their written opinions

confirm that none has suffered an intellectual decline.

One may disagree with their views, but not their

competence to serve. If a retirement comes, it will occur

because the justice wants to step down, not because he or

she has to.

It might not happen until the end of June. But it could

also happen tomorrow. Justices Potter Stewart, Warren E.

Burger and Thurgood Marshall waited until the end of their

final terms and made June announcements. But Byron White and

Harry Blackmun announced their retirements early, on March 3,

1993, and April 6, 1994, respectively, to give President

Clinton ample time to nominate their successors, Ruth Bader

Ginsburg and Stephen Breyer, and to win Senate confirmation

by, in both cases, the beginning of August.

Although it is impossible to know if or when a vacancy will

occur, one thing is easy to predict: how Democrats will

respond to Mr. Bush's first nomination of a Supreme Court

justice. Senate Democrats, in combination with a cabal of

special interest groups, intend to politicize the Supreme

Court and oppose any Bush nominee, regardless of who the

nominee is. History, both recent and reaching back to the

Reagan and first Bush presidencies, offers little

encouragement that the Senate will conduct itself

professionally and responsibly.

The pattern emerged over time: the Democrats' defeat of

Judge Robert H. Bork's nomination to the court in 1987; their

near-killing of Judge Clarence Thomas' nomination in 1991;

their rage against the Supreme Court for ``handing'' the

presidency to the Republicans in the 2000 election; the

notorious Washington Post op-ed by Abner Mikva (former

Clinton White House counsel and retired U.S. Court of Appeals

judge) calling on the Senate to block any Supreme Court

nominations by President Bush; their bottling up superbly

qualified appellate court nominees for nearly two years on

the Democratic-controlled Senate Judiciary Committee; their

obsession with Roe vs. Wade and their imposition of

ideological litmus tests; their celebration of the American

Bar Association seal of approval as the ``gold standard''--

until the ABA began giving many of Mr. Bush's nominees the

highest possible rating; their filibustering of the

nomination of Miguel Estrada to the U.S. Court of Appeals in

Washington to prevent an up or down vote even after a

majority of senators announced that they will vote to confirm

him; their threatened filibuster against Texas Supreme Court

Justice Priscilla Owen for a seat on the 5th U.S. Circuit

Court of Appeals.

That history, and more, exposes what Democrats will do to

fight a Bush Supreme

Court nomination. The attack will be waged on two fronts, one

substantive, the other procedural.

The substantive attack will have six parts.

Retirement day blitzkrieg. If the retiring justice is a

Republican, and gives the White House advance, confidential

notice of his or her intention to retire, as Chief

Justice Warren Burger did in 1986, the president will have

an opportunity to announce a retirement and a nomination

on the same day. Within one hour of that nomination, a

leading Democratic senator, probably Tom Daschle, Edward

Kennedy, Patrick Leahy or Charles Schumer, will attack the

nominee's character, integrity or competence. (Recall Mr.

Kennedy's outburst within 45 minutes of President Reagan's

nomination of Judge Bork: ``Robert Bork's America is a

land in which women would be forced into back-alley

abortions, blacks would sit at segregated lunch counters,

rogue policemen could break down citizen's doors in

midnight raids, school children could not be taught about

evolution, writers and artists could be censured at the

whim of government.'') Sundry left wing ``public

interest'' (actually, special interest) groups will join

the chorus. The purpose of the first day blitzkrieg is to

set the president and the nominee reeling on their heels

and destroy the momentum of the nomination. The blitzkrieg

aims to spin that night's TV coverage and the next

morning's newspaper stories.

The paper blizzard. Within hours of the nomination,

senators and special interest groups will inundate the press

with letters, reports, memos and even small books that

purport to expose the unfitness of the nominee. In many

cases, those scripts have already been written. For more than

two years, Democrats have been doing ``opposition research,''

as though preparing for a political campaign, to uncover

damaging information on the 10 to 15 people rumored to be on

the president's short list for the court. The purpose of the

paper blizzard is to turn public opinion against the nominee

long before the Senate Judiciary Committee even convenes a

hearing on the nomination.

The indictment. The paper blizzard will include some or all

of the following accusations: The nominee is not

``sensitive'' to the rights of women, children, black

Americans and other racial minorities, the disabled, workers,

unions, farmers, native Americans and others. The nominee is

``out of the mainstream'' of the American legal tradition; is

too ``right wing''; is even ``radical.'' (Democrats perfected

their use of those smear tactics against Judge Bork, stooping

so low as to suggest he might not believe in God. Apparently

a godless conservative is even more dangerous than a god-

fearing one.) With much hand-wringing, Democrats will cry

crocodile tears, sighing ``if only the president had

nominated a moderate conservative, we would be delighted to

confirm him or her.''

We have seen that lately in just regular nominations. You can imagine what is going to happen with the Supreme Court nomination.

If the nominee does not have an extensive body of scholarly

writings, Democrats will tar him as a ``stealth'' candidate,

who possesses hidden and alarming views. If, on the other

hand, the nominee has written extensively, those writings

will be denounced as ``out of the mainstream.''

Remember that phrase. We have seen a lot of it around here in recent times on current nominees, who have had unanimous well qualified ratings from the gold standard of the Democrats, the American Bar Association.

Mr. Swanson goes on to say:

If the nominee believes in a color-blind society and equal

treatment under the laws, and questions the constitutionality

of race-conscious policies called affirmative action by some,

then of course the nominee is a ``racist'' who will want to

``turn back the clock'' on civil rights, overturn Brown vs.

Board of Education, repeal the 13th, 14th and 15th

Amendments, and reintroduce slavery.

Mr. Swanson is very colorful in some of his remarks, but we have actually seen this type of treatment of Republican nominees.

Mr. Swanson goes on to say:

Beyond attacking the nominee personally, the paper blizzard

will suggest that he or she represents a so-called

transformative appointment who will upset the alleged

delicate balance of the court. Some Democrats will seek cover

by claiming that they have nothing against the nominee, he or

she is just the wrong person at the wrong time for the best

interests of the court and the country.

We have actually seen that in the months since January, and on other occasions, with the same arguments being used against people with unanimous well qualified recommendations from the American Bar Association.

Mr. Swanson goes on to say:

Rancorous hearings. Mr. Bush's first nominee to the court

should not expect a cordial reception from Democrats on the

Judiciary Committee. They will attempt to grill the nominee

for three to six days. They will ask hundreds of questions.

Many hostile witnesses will be called. Special interest

groups will haunt the hearing room and loiter in the halls,

murmuring against the nominee and handing out attack

literature.

The partisan committee vote. For the Democrats, the

hearings are mainly for show and to posture before the

cameras for their constituencies and the left-wing special

interest groups. They will have already decided their vote

before the hearing begins or the nominee speaks one word. Of

course that vote is ``no.'' Because Republicans are a

majority on the committee, the nomination will be reported to

the Senate favorably by a party-line vote.

The Senate vote. Once the Judiciary Committee reports the

nomination to the full Senate, Democrats opposing the

nomination will continue to fight it on the floor by

insisting on a lengthy debate. Then they will try to persuade

their colleagues to vote against the nominee. Ultimately they

will lose. The president's nominee will be confirmed because

the Republican majority, plus a number of responsible

Democrats, will vote to confirm him. If there is a vote, that

is.

Along with their substantive attack on the nominee,

Democrats will mount a procedural attack. That plan has two

elements.

Delay the Judiciary Committee hearing. Upon making a

nomination, the president will ask Judiciary Committee

Chairman Orrin Hatch to schedule hearings by early July, with

the goal of having a Senate floor vote by late July or early

August. Democrats on the committee will vigorously oppose

that goal and attempt to delay the hearing until September.

They will bleat that there must be no ``rush to judgment,''

and claim that they require months to ``study'' the nominee.

Their ability to stall Judge Bork's hearings until September

contributed to the nomination's defeat. Democrats and the

special interest groups had all summer to mobilize their

onslaught against Judge Bork. The White House failed to

anticipate the viciousness of the assault and was taken off

guard. Because the Republicans now control the committee, the

Democrats will find it harder to stall the hearings.

The filibuster trump card. When all else fails to cow the

president's nominee into withdrawing, when the Democrats have

been unable to stall the Judiciary Committee hearing, when

they can't stop the committee from reporting the nomination

favorably to the full Senate, after they fail to turn

mainstream America against the nominee, when they count heads

and discover that a majority of senators, including many

Democrats, intend to vote to confirm the president's nominee,

look for the leaders of the opposition to play their

favorite, anti-democratic, Democratic trump card--the

filibuster. Democrats challenged the president on Miguel

Estrada, and they believe they have found the president

wanting. Although Mr. Bush has called Mr. Estrada one of his

most important appellate nominees, the White House has, for

the past two years, been unable to confirm him. The

Democrats' successful filibuster against Miguel Estrada, the

first ever against a nominee to a U.S. Court of Appeals, has

emboldened them to challenge Mr. Bush when he makes his first

nomination to the High Court. The Democrats have paid no

price for their Estrada filibuster. Look for them to test the

president again.

Yes, that is the worst-case scenario, and it may not

unfold. In any event, if there is a vacancy on the court, the

nominee must be treated civilly, fairly and allowed an up-or-

down vote by the full Senate, as the Constitution

contemplates. The president had better be prepared for a

fight. His opponents are certainly ready. If the president

prevents the politicization of nominations to the lower

Federal courts, and to the U.S. Supreme Court, he will win

the most important domestic battle of his first term. If he

loses that battle, he may not get a second chance.

Those are one observer's predictions about the fight that will ensue if there is a vacancy on the Supreme Court this year. As I said at the outset, I certainly hope that the predictions in this article do not come true, because it will be a sad day for the Senate and for the country if they do. I have to admit that many of the tactics described in this article sound alarmingly familiar--we have seen them practiced with great skill on President Bush's Circuit Court of Appeals nominees.

We have seen most of those types of techniques used in various debates. I am hopeful that this type of bitter partisanship will not continue. I continue to try to be optimistic about the prospects for a Supreme Court vacancy, but it gets harder and harder every day, and about fair treatment for whoever is appointed by this President. I have to say I have a great deal of concern about how the President's nominee or nominees to the Supreme Court will be treated. I hope my colleagues will think about the impact of these tactics as described in this article and the consequences of such a destructive campaign on both the Senate and the Nation.

Mr. Swanson has done us a favor by putting what have been tactics used in the past into an article--yes, an alarmist article, but unfortunately every one of those tactics he has described has been utilized in the past by friends on the other side.

We are right now in the middle of filibusters against two highly qualified, exceptional people, and the arguments used against them are almost unreal. The only argument I keep hearing about Miguel Estrada is he just hasn't answered all the questions. We have had very few circuit court nominees who have even come close to answering the number of questions that have been asked of Mr. Estrada. We hear arguments against Priscilla Owen, about the only thing left that has not been totally obliterated by the facts: that she joined in dissent--in a few of the better than 800 cases--of a young girl who asked for a judicial bypass so her parents would not have to be notified about her upcoming abortion.

Polls indicate that more than 70 percent of the American people support parental notification. It has nothing really to do with Roe v. Wade. It has to do with whether parents have a right to assist or consult with their young daughter who may be going through the most momentous medical procedure in her lifetime. But the finder of fact in these few cases found that these young women--these young girls--should consult with their parents. That is being held against Priscilla Owen as though she is against Roe v. Wade, when she clearly and unequivocally said she will support the decision in Roe v. Wade as a circuit court of appeals judge. You couldn't ask anything more of her, but they are asking more.

Mr. President, I yield the floor and suggest the absence of a quorum.