Floor Statements

Mr. President, I have been listening with a great degree of interest at the comments of my colleagues. I, for one, as one of the prime authors of the Americans with Disabilities Act, contend that Mr. Sutton does agree with the bill and that he is an advocate for those who are suffering from disability, in spite of what has been said.

I rise today in support of the nomination of Jeffery Sutton to be a Judge on the Sixth Circuit Court of Appeals. Mr. Sutton is one of the top appellate lawyers in this country today. He has argued over 45 appeals for a diversity of clients in Federal and State courts across the country, including an impressive number--12--before the U.S. Supreme Court. We have not had nominees like this for years, who have the ability, experience, capacity, knowledge and the decency that some of these nominees of President Bush have. In 2001, he had the best record of any advocate before the Court, arguing 4 cases and winning all of them. On January 2, 2003, the American Lawyer named him one of the best 45 lawyers in the country under the age of 45. He is an outstanding nominee, and I urge all of my colleagues to support him.

Mr. Sutton served as a law clerk for United States Supreme Court Justices Lewis Powell and Antonin Scalia. Like his mentor Justice Powell, Sutton is a moderate who favors judicial pragmatism: According to Sutton, Justice Powell ``believed in people more than in ideas, in experience more than ideology and in the end, embraced a judicial pragmatism that served the country well.'' Mr. Sutton served as State Solicitor for the State of Ohio and currently is a partner in the prestigious law firm of Jones, Day, Reavis and Pogue. He also serves as an Adjunct Professor at Ohio State University School of Law.

During his legal career, he has not only demonstrated keen intellect, strong advocacy skills and a commitment to the rule of law, but has dedicated a substantial amount of his time to providing pro bono legal services to a variety of individuals and groups. He enjoys strong support from lawyers in Ohio and across the country, who have written to praise not only his first-rate legal abilities, but also his fairness, open-mindedness, and personal integrity. There can be no serious question as to Mr. Sutton's qualifications for this position. He represents the best of the legal profession and it is shameful to indicate otherwise.

Unfortunately, some of my colleagues seem to be looking past his unassailable credentials in search of issues that could be used to disparage him. I would like to address those points and explain why my colleagues need not be concerned--maybe that is a nice word to use here.

There have been suggestions that Mr. Sutton's record somehow demonstrates a bias against Americans with disabilities. However, there is no evidence in his record to suggest that he has a personal bias against those with disabilities or any other group of individuals. In fact, even the People for the American Way has conceded that ``No one has seriously contended that Sutton is personally biased against people with disabilities.'' I think that is a very important point.

When he was young, Mr. Sutton regularly assisted at his father's school for children with cerebral palsy, and a closer look at his legal record demonstrates that Mr. Sutton has taken up the causes of disabled Americans several times. He represented a talented young woman named Cheryl Fisher, who sought to get into medical school, but was turned down because she was blind. In a letter of support of Mr. Sutton, Ms. Fisher wrote:

I recall with much pride just how committed Jeff was to my

case. He believed in my position. He cared and listened and

wanted badly to win for me . . . I realized just how

fortunate I was to have a lawyer of Jeff's caliber so devoted

to working for me and the countless others with both similar

disabilities and interests.

In National Coalition of Students with Disabilities v. Taft, he successfully argued that Ohio Universities were violating the federal motor-voter law by failing to provide disabled students with voter registration materials. Again he received high praise from someone involved in the case. Benson A. Wolman, former Director of the ACLU for Ohio and currently a member of its National Advisory Council, who recruited Mr. Sutton to work on the case, wrote:

Mr. Sutton's commitment to individual rights, his civility

as an opposing counsel, his sense of fairness, his devotion

to civic responsibilities, and his keen and demonstrated

intellect all reflect the best that is to be found in the

legal profession.

Mr. Sutton also served on the Board of the Equal Justice Foundation, a public interest organization that provides pro bono legal services to the disadvantaged. During his tenure on the board, the Foundation has sued three Ohio cities to force them to build curb cuts to make their sidewalks wheelchair accessible, sued an amusement park company that banned disabled individuals from their rides, represented a mentally disabled woman in an eviction proceeding against her landlord who tried to evict her based on her disability, and represented a girl with tubular sclerosis in a case alleging that the school was not properly handling her individual education plan.

There are also many in the disabled community who, though not directly

involved with Mr. Sutton's cases, understand that he is committed to the law and support his nomination. Francis Beytagh, Legal Director of the National Center for Law and the Handicapped wrote:

I believe Jeff Sutton would make an excellent federal

appellate judge. He is a very bright, articulate and

personable individual who values fairness highly . . . I do

not regard him as a predictable ideologue . . . I recommend

and support his confirmation without reservation.

We should pay attention to this person.

James Leonard, co-director of the University of Alabama's Disability Law Institute, writes:

In my opinion, Jeffery Sutton is well-qualified to sit on

the Sixth Circuit Court and should be confirmed . . . I also

see no ``agenda'' on Mr. Sutton's part to target disabled

citizens. . . . Just as I would not infer an anti-disabled

agenda from Mr. Sutton's participation in Garrett, neither

would I assume from his role in the Fisher case that he had

the opposite inclination. Rather, he seemed to be a good

lawyer acting in his client's interest.

Gee, that is what he is, a good lawyer who represents clients and wins.

Beverly Long, Immediate Past President of the World Federation of Mental Health and former Commissioner of President Carter's Commission on Mental Health writes:

I have followed news reports of the intense lobbying

against Mr. Sutton by various people who advocate on behalf

of the disabled. This effort is unfortunate and, I am

convinced, misguided. I have no doubt that Mr. Sutton would

be an outstanding circuit court judge and would rule fairly

in all cases, including those involving persons with

disabilities.

I assume, after listening to my colleagues on the other side, what they are trying to do is beat up Mr. Sutton now so that he will bend over backwards in every way for persons with disabilities.

I don't think they have to worry about that. But I think it is unfortunate that they are beating up on a man who basically understands the disability community and who has long fought for it, but who has represented some clients with interests that my friends on the other side don't like.

I agree with Ms. Long, and I have no doubt Mr. Sutton would rule fairly in all cases, including those cases involving disabled Americans. Mr. Sutton's critics hold up the Garrett case as evidence to his insensitivity to the disabled community. I want to take just a few moments to discuss why that criticism is misguided.

Mr. Sutton did not seek to represent the State of Alabama in that case out of any desire to curb the Americans with Disabilities Act. Instead, he was approached by Alabama's attorney general to represent Alabama at the appellate stages of the litigation.

He was approached because he is an excellent lawyer and one of the best appellate lawyers in the country.

As an attorney looking to build a practice before the Supreme Court, Mr. Sutton accepted that representation. I do not see anything wrong with a young lawyer accepting cases in order to gain more experience before our Nation's highest tribunal. I concur with my distinguished colleague, the senior Senator from the State of California who pointed out that she hears from lawyers all the time that they were trying to build Supreme Court practices and picked up cases to do so.

It is a common practice for those who are fortunate enough to try cases before the Supreme Court. I give Mr. Sutton marks for candor for explaining that reason at his hearing.

Mr. Sutton did nothing wrong in accepting that representation--State governments are certainly entitled to representation under our legal system. Yet, I can understand the frustration that some of my colleagues may feel to see the protections of the Americans with Disabilities Act limited by the Supreme Court. I worked many long hours to see that piece of legislation enacted. However, I do not blame Mr. Sutton for the Supreme Court's decision--he is guilty of nothing more than being a very good lawyer for his client. The principle of judicial review is very well-established in American jurisprudence. If anything, we should be thankful that there are lawyers as able as Mr. Sutton to ensure the effective working of our system of checks and balances. It was the Supreme Court that made the decision; Mr. Sutton was simply representing his client.

And, by the way, that is what attorneys do. He had a right to do it. It was legitimate to do it. He did a very good job.

There is no evidence that Mr. Sutton was motivated by a personal agenda when he represented those State governments. In fact, former Clinton Solicitor General Seth P. Waxman, and Sutton's opposing Counsel in the Garrett case, wrote, ``I argued the case against Mr. Sutton, and I discerned no such personal antipathy. Mr. Sutton vigorously advanced the constitutional position of his client in the case, the State of Alabama; doing so was entirely consistent with the finest traditions of the adversarial system.''

It is important to note that the ABA Model Rules of Professional Conduct state that no inference about a lawyer's personal views should be gleaned from the positions of his client. The rule states, ``A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.'' My distinguished colleague, the junior Senator from New York, seems to agree. Back in February, on the Senate floor she noted, ``A long time ago, I used to practice law. I represented a lot of clients of different kinds, all sorts of folks. Their views and positions were not necessarily mine. I won some and I lost some in the trial court, in the appellate court, and in the administrative hearing room, but I do not believe that any of my clients spoke for me. My advocacy on behalf of clients was not the same as my positions about the law, about constitutional issues, and about many other matters.''

I personally think that was very well said by the distinguished junior Senator from New York.

Obviously, I do not think anybody in this body would seriously consider voting against a nominee because of a dislike of the nominee's clients. All of those of us who practice law and try cases represent clients with whom some in the Senate might disagree.

We had an important discussion about clients in connection with the nomination of Marsha Berzon, now a judge on the Ninth Circuit, and the Senate decided not to hold her responsible for her clients' views and confirmed her. I advocated for her even though I probably disagree with her philosophy in many respects. Judge Berzon is well qualified.

Judge Berzon had been a long-time member of the ACLU, serving on the Board of Directors and as the Vice President of the Northern California Branch. She testified that:

``[I]f I am confirmed as a judge, not only will the ACLU's

positions be irrelevant, but the positions of my former

clients, indeed, my own positions on any policy matters will

be quite irrelevant and I will be required to and I commit to

look at the statute, the constitutional provisions, and the

precedents only in deciding the case.''

Mr. Sutton made similar assurances at his hearing that he will follow the law as an appellate court judge. He stated, ``. . . there's no doubt that when a Federal statute is passed, as the U.S. Supreme Court has made clear, there's a heavy presumption of constitutionality. And there's no doubt that a Court of Appeals judge has every obligation to follow that presumption.'' We accepted Judge Berzon's answer and we should do the same for Mr. Sutton instead of trying to destroy his reputation.

If there are members of this body who nevertheless try to hold Mr. Sutton responsible for the views of the states that he represented, I ask that they at least judge Mr. Sutton on his entire record and not just on a select handful of cases--or here a case, there a case, once in awhile another isolated case, and not just a select handful of cases.

Mr. Sutton has represented a wide range of clients in his legal practice. Most of the clients in the cases that displease his critics paid him to represent them, but he has represented a significant number of clients with very diverse interests on a pro bono basis. These clients include death row defendants, prisoner rights plaintiffs, the National Coalition for Students with Disabilities, the NAACP and the Center for Handgun Violence--to name a few.

In 2001, he was appointed by the U.S. Supreme Court to represent--pro se--Dale Becker in a prisoner rights complaint. Opposing counsel, and former

General Counsel of the National Security Agency during the Bush and Clinton Administrations, Stewart A. Baker, wrote in support of Mr. Sutton stating, ``If Mr. Sutton is to be judged by the positions he takes on behalf of his clients, the Becker case suggests that he favors increased inmate litigation in federal courts as well as a broad and flexible reading of the courts' rules, at least when a literal reading does harm to pro se litigants. In fact, the Becker case illustrates the fallacy of claims that Mr. Sutton's judicial philosophy can be gleamed from the positions he has advocated in court. Although he has apparently taken conservative positions on behalf of some clients, Mr. Sutton has also championed left-liberal positions when his client's welfare called for such arguments.''

Take for example, Mr. Sutton's defense of Ohio's minority set-aside statute when he was Solicitor General. Fred Pressley, Ohio attorney and Democrat who worked with Sutton on the case wrote, ``As Solicitor General, Mr. Sutton was a tenacious defender of all Ohioans, regardless of their race, gender, disability or nationality.''

In addition, I recently received a supportive letter from Mr. Riyaz Kanji, a former law clerk to Supreme Court Justice David Souter and Judge Betty Fletcher of the Ninth Circuit. He said that he contacted Mr. Sutton in August to ask for assistance on an amicus brief for the National Congress of American Indians in an Indian Law case pending before the United States Supreme Court. Mr. Kanji wrote, ``Mr. Sutton took the time to call me back from vacation the very next morning to express a strong interest in working on the case. In our ensuing conversations, it became apparent to me that Mr. Sutton did not simply want to work on the matter for the small amount of compensation it would bring him--he readily agreed to charge far below his usual rates for the brief--but that he instead had a genuine interest in understanding why Native American tribes have fared as poorly as they have in front of the Supreme Court in recent years . . . I think it is fair to say that most individuals who are committed to furthering the cause of State's rights without regard to any other values or interests in our society do not evidence that type of concern for tribal interests.''

I could go on and on in discussing the numerous letters of support that I have received on Mr. Sutton's behalf, but I think the best spokesperson for Mr. Sutton is Mr. Sutton himself. In a 12-hour hearing, Mr. Sutton answered all questions put to him candidly and honestly. He was extremely considerate and deferential, displaying a respect for the process as well as his very impressive legal ability.

Jeffrey Sutton is the best the legal profession has to offer. I urge my colleagues to examine his full and accurate record. I am confident if they do, my colleagues will vote overwhelmingly to confirm Mr. Sutton.

Mr. President, let me just take a moment to address some of my colleagues' concern about the Americans with Disabilities Act and the Supreme Court's decision in Garrett. I was a prime cosponsor of the Americans with Disabilities Act, and I am very proud of it. But this debate is not about whether this body did the right thing in passing that legislation. I personally think we did the right thing, and I could talk for hours on how important that legislation is. However, in our system of checks and balances, the Supreme Court has a role here. And all parties before the Court deserve to have competent, in fact, zealous legal representation--States as well as individuals.

In the Garrett case, the State of Alabama sought the representation of Jeffrey Sutton. Mr. Sutton argued zealously on behalf of the State. However, nowhere--nowhere--does Alabama's brief suggest that Congress does not have the power to protect Americans with disabilities.

Mr. Sutton did not, as some have contended, argue the Americans with Disabilities Act as a whole was not needed or should be repealed. Statements to this effect are a mischaracterization of both the nature of the question before the Court in the Garrett case and the arguments Mr. Sutton advanced on behalf of the State of Alabama.

In fact, Alabama's brief stated:

The ADA advances a commendable objective--mandatory

accommodation of the disabled. . . .

Further, the brief stated specifically that:

Alabama . . . has not challenged Congress' authority under

the Commerce Clause to regulate State employees through the

ADA, [or] an individual's authority to bring an injunction

action against State officials in Federal court, or the

Federal government's authority to bring a claim for

injunctive or monetary relief against States in Federal

court.

Alabama's brief also specifically credited the Federal Government for prohibiting Government-based discrimination against the disabled, and affirmatively requiring all manner of employment and public-access accommodations designed to provide the disabled with the kind of equal opportunity and dignity all individuals deserve.

Finally, at oral argument before the Court, Mr. Sutton clarified that his client was ``happy that the ADA was enacted.'' Even if his client's statements or sentiments are deemed his own--which they should not be-- Mr. Sutton's written and oral statements in the Garrett case dispel any credible notion that he believes the ADA is not needed.

Mr. President, I have no doubt that every litigant appearing in Jeffrey Sutton's courtroom will get a fair shake. Now, some of my colleagues have tried to distort his record, have tried to imply he is not the man that he is, have tried to indicate he is against the Americans with Disabilities Act because he represented clients with which some of my colleagues disagree, and that he is not worthy to be on this court. The total record suggests and demands otherwise.

We should be lucky if we can get other nominees, whichever party is in charge of the White House, who have the kind of abilities and capacities that Jeffrey Sutton has. I have no doubt every litigant appearing before Mr. Sutton will be treated fairly, with dignity, and that the laws will be interpreted appropriately. This is an honest man. This is a great lawyer, although young, and he is a person who will, I think, bring a great deal of balance, integrity, capacity, and ability to the Federal courts of this country and, in particular, the Sixth Circuit Court of Appeals.

So I hope our colleagues in the Senate will ignore some of the, I think, disparaging remarks that have been made and look at the real record. And if they do, they will vote for Jeffrey Sutton.

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

Mr. President, I would like to respond to the comments made by my good friend from Iowa, Senator Harkin.

I was also a cosponsor of the Americans with Disabilities Act, and I believe very much in that legislation and its goals. It is one of the most important pieces of legislation that I have worked on during my tenure in the Senate. I can certainly understand my distinguished colleague's concerns about the limitations that the Supreme Court placed on the Act in their decision in Garrett. However, I do not believe for one minute that Mr. Sutton's representation of the State of Alabama is in any way indicative of an agenda, personal or otherwise, against Americans with disabilities.

Even the People for the American Way has conceded, ``No one has seriously contended that Sutton is personally biased against people with disabilities.'' Furthermore, Mr. Sutton's opposing counsel in the Garrett case, former Clinton administration Solicitor Seth P. Waxman, has written to me in support of Mr. Sutton. He stated:

I know that some have questioned whether the position Mr.

Sutton advocated . . . in the Garrett case reflected

antipathy on his part toward the Americans with Disabilities

Act. I argued that case against Mr. Sutton, and I discerned

no such personal antipathy. Mr. Sutton vigorously advanced

the constitutional position of his client in the case, the

State of Alabama; doing so was entirely within the finest

traditions of the adversary system.

When Mr. Sutton was young, he regularly helped out at his father's school for children with cerebral palsy. As Ohio State Solicitor, he represented Cheryl Fisher, a blind woman who was refused admission to medical school. Ms. Fisher wrote of Mr. Sutton, ``I recall with much pride just how committed Jeff was to my cause. He cared and listened and wanted badly to win for me. It was then I realized just how fortunate I was to have a lawyer of Mr. Sutton's caliber so devoted to working for me and the countless of others with both similar disabilities and dreams.''

In National Coalition of Students with Disabilities v. Taft, Mr. Sutton successfully argued that Ohio universities were violating the federal motor-voter law by failing to provide disabled students with voter registration materials. Benson A. Wolman, former Director of the ACLU for Ohio and currently a member of its National Advisory Council, who recruited Mr. Sutton to work on the case, wrote:

[Mr. Sutton's] commitment to individual rights, his

civility as an opposing counsel, his sense of fairness, his

devotion to civic responsibilities, and his keen and

demonstrated intellect all reflect the best that is to be

found in the legal profession.

Mr. Sutton also serves on the Board of the Equal Justice Foundation, a public interest organization that provides pro bono legal services to the disadvantaged. During his tenure on the board, the Foundation has sued three Ohio cities to force them to build curb cuts to make their sidewalks wheelchair accessible, sued an amusement park company that banned disabled individuals from their rides, represented a mentally disabled woman in an eviction proceeding against her landlord who tried to evict her based on her disability, and represented a girl with tubercular sclerosis in a case alleging that the school was not properly handling her individual education plan.

I have received other letters from those who work in the disabled community who support Mr. Sutton. Francis Beytagh, Legal Director of the National Center for Law and the Handicapped, wrote:

I believe Jeff Sutton would make an excellent federal

appellate judge. He is a very bright, articulate and

personable individual who values fairness highly . . . I do

not regard him as a predictable ideologue . . . I recommend

and support his confirmation without reservation.

James Leonard, co-director of the University of Alabama's Disability Law Institute, writes:

In my opinion, Jeffery Sutton is well-qualified to sit on

the Sixth Circuit Court and should be confirmed . . . I also

see no ``agenda'' on Mr. Sutton's part to target disabled

citizens . . . Just as I would not infer an anti-disabled

agenda from Mr. Sutton's participation in Garrett, neither

would I assume from his role in the Fisher case that he had

the opposite inclination. Rather, he seemed to be a good

lawyer acting in his client's interests.

Beverly Long, Immediate Past President of the World Federation of Mental Health and former Commissioner of President Carter's Commission on Mental Health writes:

I have followed news reports of the intense lobbying

against Mr. Sutton by various people who advocate on behalf

of the disabled. This effort is unfortunate and, I am

convinced, misguided. I have no doubt that Mr. Sutton would

be an outstanding circuit court judge and would rule fairly

in all cases, including those involving persons with

disabilities.

In addition, my good friend from Iowa mentioned that he sat next to Senator Robert Dole at the Garrett arguments. Senator Dole, who has always been a great champion of disability rights, has of course joined the chorus of those who have written in support of Mr. Sutton.

There is simply no evidence to suggest that Mr. Sutton took the Garrett case due to any personal agenda. It is a well-established principle in the legal profession that lawyers should not be held responsible for the positions of their clients. The ABA Model Rules of Professional Conduct state, ``A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.'' Lawyers from across the country have written suggesting that it is not appropriate to attribute a client's views to the attorney, and it is certainly not appropriate in Mr. Sutton's case specifically.

My distinguished colleagues' own constituent and good friend Bonnie Campbell is included in those lawyers. She wrote, ``I strongly urge the Senate to reject any unfair inference that Mr. Sutton's personal views must coincide with positions he has advocated on behalf of clients. It is, of course, the role of the advocate to raise the strongest available arguments on behalf of a client's litigation position regardless of the lawyer's personal convictions on the proper legal, let alone policy, outcome of the case. I am confident that Mr. Sutton has the ability, temperament, and objectivity to be an excellent judge.''

In the Garrett case, Mr. Sutton was advocating for his client, the State of Alabama. Just as accused murderers are entitled to representation under the laws of this country, so are state governments. Mr. Sutton has represented them both. We cannot attribute the position of the State of Alabama to Mr. Sutton, and we should not disparage him for fulfilling his ethical duty of zealous advocacy to his client. If the Supreme Court chose to accept the arguments he put forth on behalf of his client, we must respect its decision. While some of us who worked so hard on that legislation understandably may be disappointed, that disappointment should not be directed at Mr. Sutton. The principle of judicial review is well-established; Mr. Sutton ethically and honorably was fulfilling his role as an advocate. He has no personal agenda against Americans with disabilities. I have no doubt that if confirmed, Mr. Sutton will give any disabled American that comes before him a trial that is fair, impartial, and consistent with all our notions of justice.

I yield the floor and suggest the absence of a quorum.

Mr. President, it is my pleasure to introduce today the Federal Judgeship Act of 2003. This bill will alleviate some of the strain on the vastly overburdened Federal courts by creating a total of 57 new judgeships: Eleven new circuit judgeships and 46 new district judgeships. It also converts five existing temporary judgeships to permanent positions. In addition, the bill confers Article III status on the judgeships authorized for the Northern Mariana Islands and the Virgin Islands.

The Judicial Conference of the United States endorses the provisions in this bill. I hope that my colleagues will join me in supporting it.

Mr. President, it is my pleasure to introduce today the Federal Judgeship Act of 2003. This bill will alleviate some of the strain on the vastly overburdened Federal courts by creating a total of 57 new judgeships: Eleven new circuit judgeships and 46 new district judgeships. It also converts five existing temporary judgeships to permanent positions. In addition, the bill confers Article III status on the judgeships authorized for the Northern Mariana Islands and the Virgin Islands.

The Judicial Conference of the United States endorses the provisions in this bill. I hope that my colleagues will join me in supporting it.

Mr. President, nations throughout the world, especially within Latin America, celebrate Dia De los Ninos on the 30th of April, in recognition and celebration of their country's future--their children. Many American Hispanic families continue the tradition of honoring their children on this day by celebrating Dia De los Ninos in their homes.

The designation of a day to honor the children of the Nation will help affirm for the people of the United States the significance of family, education, and community. This special recognition of children will provide us with an opportunity to reflect on our future, articulate our dreams and aspirations, and find comfort and security in the support of our family members and communities. This resolution calls on the American people to join with all children, families, organizations, communities, churches, cities, and States across the Nation to observe the day with appropriate ceremonies and activities.

I thank my colleagues for supporting America's youth by supporting this resolution designating April 30, 2003, Dia De los Ninos: Celebrating Young Americans.

Mr. President, today my heart is heavy. Though our Nation's forces continue to make dramatic gains to rid the world of a tyrant who cares not for basic human dignities, three sons of Utah have made the ultimate sacrifice so that a nation may be reborn in freedom. There names are SSG James W. Cawley, United States Marine Corps Reserve, SSG Nino D. Livaudais, of the Army's Ranger Regiment, and Randall S. Rehm, of the Army's 3rd Infantry Division.

To their families, I know that no words that I say here today will alleviate the sense of loss that you feel. You see, I too, lost a brother during the Second World War. But their families should know this, that our communities are with you and will stand behind you, that our State of Utah is praying for you and keeping you in our thoughts, and that our Nation will remember and honor your loss.

The death of these three men shows once again that it is our Nation's finest who answer the call of the colors.

Sergeant Cawley of Layton had dedicated his whole life to the protection of others. He was a Marine Reservist, who in civilian life was a Salt Lake City police officer. He was a member of that department's SWAT team and gang unit. Before joining the department he served for 12 years on active duty with the Marines, traveling the world. During one of his deployments to Okinawa he met his wife Miyuki, and they have two children, Cecil and Keiko. I join the entire Senate in telling those children that their father was someone to be proud of.

Sergeant Livaudais grew up around Ogden. He might have only been 23 years old, but he was already a combat veteran twice serving in Afghanistan. He truly died a hero's death, racing to protect a pregnant woman who was being used as a human shield. He fell victim to an explosion caused by a homicide bomber. His selfless act only reaffirms his unit's motto: ``Rangers Lead The Way.'' He leaves behind a wife, two children, and a third child on the way. To his children who, in the coming years, might look back on these events in order to get a better understanding of who their father was and what he stood for, they should know this: Your father represents the very best that our Nation has to offer.

Sergeant Rehm was not a native of Utah, but we were honored to have him and his family in Utah for 3 years when the Sergeant ran the Army's Salt Lake City recruiting office. He helped so many young people make the important decision to enter Government service. He died in the fighting near Baghdad International Airport, but his memory and spirit will live on in all of the young soldiers that he introduced to the Army. They will now carry on his traditions of honor and service.

After all wars monuments are built and ceremonies are held. However, for me the greatest memorial that can be erected to theses fine men is to remember their names--James Cawley, Nino Livaudais, and Randall Rehm--and to learn from their example, that even now, in these challenging times, all people deserve to be free. It is our responsibility to these heros that we realize a better world for which they fought.

Mr. President, I ask unanimous consent that at a time determined by the majority leader, after consultation with the Democratic leader, the Senate proceed to the consideration of the conference report to accompany S. 151, the PROTECT Act, and it be considered as follows: There be 2 hours of debate equally divided in the usual form.

I further ask unanimous consent that following that debate time, the Senate proceed to a vote on the adoption of the conference report, with no intervening action or debate.

Without losing my right to the floor.

Could I ask the distinguished Senator how much time he would need?

I yield without losing my right to the floor.

I am sorry to see the objection on this matter because I believe this is one of the most important bills we will ever enact in the Senate, especially with regard to our children, but with regard to criminal law in general.

Mr. President, I ask unanimous consent that the Senate immediately proceed to the consideration of H.R. 1584, which is at the desk.

I ask unanimous consent that the Grassley substitute be agreed to, that the bill, as amended, be read a third time and passed, the motion to reconsider be laid upon the table, and that any statements relating to the bill be printed in the Record.

Mr. President, I ask unanimous consent that the Senate proceed to the consideration of the conference report to accompany S. 151, the PROTECT Act.

I rise in support of the conference report on S. 151, the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, which truly represents landmark bipartisan legislation to protect our children.

On Tuesday of this week, the House and Senate conferees met and reached agreement on this important piece of bipartisan legislation. Earlier this morning, the House of Representatives passed the legislation by an overwhelming vote of 400 to 25.

I was hoping I could come to the floor to make a statement commending the Senate for working together as we had on so many other occasions on many important issues like this important piece of legislation which is needed to protect our children.

Unfortunately, this is not a proud day for the Senate, and unless we get this bill passed, it will be a sad day.

The spirit of bipartisanship appears to me to be fading, as my Democratic colleagues seek to obstruct and delay rather than working together to solve our Nation's problems and pass this important piece of legislation. Having listened to the distinguished Senator from Massachusetts, I have hope that there will not be obstruction or delay on this bill, and perhaps there won't be as he seeks his point of order. The spirit of obstructionism that I have been worried about, which we have experienced all year long, has now reached a difficult point here. If there is a desire to stop this bill in the Senate through a point of order, or otherwise, then I think it would exhibit a willingness to sacrifice the protection of our own children for political advantages. I hope that is not the case.

If it is, I will be deeply saddened by this turn of events, and I urge my colleagues on the other side to rethink their strategy and approach to so many issues.

In particular, when it comes to this issue of protecting our children, I think we ought to get this bill done. We need to cast aside partisan disputes and quickly pass this measure and send it to the President for signature as soon as possible.

Let me take a moment to commend the House of Representatives, and Judiciary Committee Chairman Sensenbrenner in particular, for their tireless dedication to this legislation. Chairman Sensenbrenner has demonstrated his commitment time and time again to passing this measure quickly during this new session of Congress. Thanks to our House colleagues, we in the Senate now have an opportunity to pass not only an AMBER alert bill, but a truly comprehensive package of measures that will protect our children from vicious criminals, pornographers, sexual abusers, and kidnappers. These types of individuals who prey on our Nation's youth are nothing less than the scum of the earth who deserve every ounce of punishment which we as a nation can fairly and justly mete out.

The problem of child abuse and child exploitation is simply mind- boggling. The recent wave of child abductions across the Nation, including the kidnapping of Elizabeth Smart in my own State of Utah, has highlighted the need for legislation to enhance our ability to protect our Nation's children against predators of all types.

I have a letter addressed to the Senate and the House of Representatives, signed by Ed and Lois Smart, Elizabeth's mother and father, as well as Elizabeth Smart, dated April 9, 2003. I ask unanimous consent that it be printed in the Record.

Mr. President, I will take a moment to address some of the significant components of this measure. First, the PROTECT Act of 2003, which I and Senator Leahy introduced following the Supreme Court's decision in Ashcroft v. Free Speech Coalition, has been my top legislative priority since last year. Congress has long recognized that child pornography produces three distinct, disturbing, and lasting harms to our children. First, child pornography whets the appetites of pedophiles and prompts them to act out their perverse sexual fantasies on real children. Second, it is a tool used by pedophiles to break down the inhibitions of children. Third, child pornography creates an immeasurable and indelible harm on the children who are abused to manufacture it.

It goes without saying that we have a compelling interest in protecting our children from harm. The PROTECT Act strikes a necessary balance between this goal and the first amendment. The PROTECT Act has been carefully drafted to avoid constitutional concerns. The end result of all of our hard work is a bill of which we can be proud, one that is tough on pedophiles and child pornographers in a measured and constitutional way.

The legislation also addresses AMBER alert, America's Missing Broadcast Emergency Response. The bill will extend the AMBER alert system across our Nation. Our entire Nation recently rejoiced with the Smart family after Elizabeth was found alive and reunited with her loved ones. Her discovery, facilitated by everyday citizens who followed this case, demonstrates the importance of getting information about these disappearances out to the public quickly.

When a child is abducted, time is of the essence. All too often, it is only a matter of hours before a kidnapper commits an act of violence against the child. Alert systems, such as the AMBER alert system, galvanize entire communities to assist law enforcement in the timely search for and safe return of child victims.

This legislation will enhance our ability to recover abducted children by establishing a coordinator within the Department of Justice to assist States in developing and coordinating alert plans nationwide. The act also provides for a matching grant program through the Department of Justice and the Department of Transportation for highway signs, education and training programs, and the equipment necessary to facilitate AMBER alert systems. I support the national AMBER Alert Network Act because it will improve our ability on a national level to combat crimes against our children.

Also, I want to take a moment to highlight another very important measure. The legislation includes the Code Adam Act, which would require Federal buildings to establish procedures for locating a child that is missing in the building. The provision is named after the son of John Walsh, the host of America's Most Wanted and the John Walsh Show. As everybody knows, John Walsh's son, Adam, was kidnapped from a mall in Florida and murdered in 1981. Retail stores around the country, including Wal-Mart, have initiated Code Adam systems in memory of Adam, and they have successfully recovered many missing children. This would implement the same system for building alerts in all Federal buildings. It is a measure I am proud to support in memory of John Walsh's son, Adam, and in honor of John Walsh's commitment and vigilance to fighting for crime victims and our children throughout the country.

On Tuesday, John Walsh attended the meeting of the conferees to discuss this legislation. Yesterday, John Walsh issued the following statement:

This incredible bill may be one of the most important

pieces of child protection legislation passed in the last 20

years. I commend Senator Hatch's leadership on the Judiciary

Committee and Chairman Sensenbrenner's leadership on the

House Judiciary. Pushing this bipartisan legislation through

is very appropriate during ``National Crime Victims' Rights

Week.'' This bill, which is a loud voice for the smallest

victims--children--has sent a loud message to those who would

prey upon our most vulnerable segment of society.

I also want to highlight other important measures contained in the conference report that will enhance existing laws, investigative tools, criminal penalties, and child crime resources in a variety of ways.

As the chart shows--the print is small--in addition to the PROTECT Act, AMBER Act, and the Code Adam Act, the legislation would, No. 1, provide a judge with the discretion to extend the term for supervision of released sex offenders up to a maximum of life; No. 2, extend the statute of limitations for child abductions and sex crimes to the life of a child; No. 3, denies pretrial release for child rapists and child abductors; No. 4, require a mandatory sentence of life imprisonment for twice-convicted serious child sex offenders; No. 5, increase penalties for kidnapping of under 18-year-old victims by nonfamily members; No. 6, add new wiretap predicates that relate to sexual exploitation crimes against children; No. 7, increase penalties and provide prosecutors with enhanced tools to prosecute those who lure children to porn Web sites using misleading domain names; No. 8, reauthorize and double the annual grant to the National Center for Missing and Exploited Children to $20 million each year through 2005; No. 9, authorize funding for the Sex Offender Apprehension Program to allow money to be used by local law enforcement to track sex offenders who violate terms of their release; No. 10, create a national Internet site for information regarding registered sex offenders; No. 11, establish a pilot program for national criminal history background checks and a feasibility study in order to provide a background check process for volunteers working for organizations, such as the Boys and Girls Clubs of America, National Mentoring Partnership, and the National Council of Youth Sports; No. 12, reauthorize grant programs to provide funding of child advocacy centers; No. 13, reforms sentencing for criminals convicted of crimes against children and sex crimes.

All of that is done in this particular bill. It is a very important bill, as you can see.

The bill also institutes sentencing reforms so that criminals convicted of crimes against children receive the stiff sentences they deserve. This provision, which was adopted at the conference, represents a significant compromise from the original House bill containing the so-called Feeney amendment which passed the House by a vote of 357 to 58. Indeed, the overall House bill passed the House by an overwhelming vote of 410 to 14.

In response to concerns raised about the Feeney amendment, I worked with Chairman Sensenbrenner, Senator Graham, and my colleagues to develop a bipartisan compromise which was ultimately supported by not only all of the Republican conferees, but by Democratic conferees as well--Senator Biden, as well as Congressmen Frost, Matheson, and Hinojosa.

The compromise proposal would:

No. 1, limit, but not prevent, downward departures only to enumerated factors for crimes against children and sex offenses;

No. 2, change the standard for review of sentencing matters for appellate courts to a de novo review, while factual determinations would continue to be subject to a ``clearly erroneous'' standard;

No. 3, require courts to give specific and written reasons for any departure from the guidelines of the Sentencing Commission; and

No. 4, require judges to report sentencing decisions to the Sentencing Commission.

It is important to note that the compromise restricts downward departures in serious crimes against children and sex crimes and does not broadly apply to other crimes, but because the problem of downward departures is acute across the board, the compromise proposal would direct the Sentencing Commission to conduct a thorough study of these issues, develop concrete measures to prevent this abuse, and report these matters back to Congress.

For those who want to oppose these needed sentencing reforms, I remind them that the Sentencing Reform Act of 1984 was designed ``to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.''

While the U.S. Sentencing Commission promulgated sentencing guidelines to meet this laudable goal, courts, unfortunately, have strayed further and further from this system of fair and consistent sentencing over the past decade.

Let me refer to this chart. As the chart shows, during the period 1991, in the left part of the chart, to the year 2001, the number of downward departures--in other words, soft-on-crime departures, excluding those requested by the Government for substantial assistance and immigration cases along the Southwest border--has steadily climbed.

In 1991, the number of downward departures was 1,241 and rose by 2001 to a staggering total of 4,098. This chart shows the rate of downward departures has increased over 100 percent during this period--in fact, almost four times--and nearly 50 percent over the last 5 years alone.

This problem is perhaps most glaring in the area of sexual crimes and kidnapping crimes.

This chart of downward departures from sentencing guidelines for sex crimes shows that during the last 5 years, trial courts granted downward departures below the mandated sentencing in 19.20 percent of sexual abuse cases, 21.36 percent of pornography and prostitution cases, and 12.8 percent of kidnapping and hostage-taking cases. Think about it: Downward departure in these types of cases that involve our children. This many departures happens to be very disturbing and astounding considering the magnitude of the suffering by our Nation's youth at the hands of pedophiles, molesters, and pornographers.

Let me give one example of the abuse this sentencing reform will correct. In one particular case, a defendant was charged--this is a convicted child pornographer--with possession of 1,300 separate images of child pornography, depicting young children in graphic and violent scenes of sexual exploitation that were sickening and horrible. For example, one of the images showed a young girl wearing a dog collar while engaging in sexual intercourse with an adult male. This same defendant was engaging in online sexual communications with a 15-year- old girl.

The sentencing guideline for this defendant mandated--these are the sentencing guidelines the distinguished Senator from Massachusetts, the distinguished Senator from Delaware, and a number of us, including myself, passed long ago--the sentencing guidelines for this defendant mandated a sentence in the range of 33 to 41 months. Yet the trial judge departed downward to a sentence of only 8 months, citing, No. 1, the defendant's height. He was just short of 6 feet tall, and he said that would make him vulnerable to abuse in prison. No. 2, he said the defendant was naive. And No. 3, the defendant's demeanor--he was meek and mild and compassionate.

We all have common sense, but this is simply incredible and outrageous. Congress has to act, and it has to act now. The compromise sentencing reform provisions contained in the conference report are a reasonable and measured response to this problem.

The compromise proposal would simply require judges to sentence these vicious defendants in accordance with the law and not seek new areas or new legal justifications for reducing sentences for these defendants without specific authorization from the U.S. Sentencing Commission.

Contrary to the oft-repeated claims of its opponents, the compromise proposal is not a mandatory minimum. Judges handling these important criminal cases can still exercise discretion to depart downward, but only when the Sentencing Commission specifies the factors that warrant a downward departure.

The other major reform in the compromise adopted in the conference report is consistent with prevailing law, requiring de novo review of a trial judge's application of facts to law. Indeed, this is the same standard that applies to appellate review of critical motions to suppress physical or testimonial evidence. There is no reason for appellate judges to give deference to the trial judge on such questions of law.

Even after the compromise amendment, the trial judge's factual determinations will still be subject to great deference under a ``clearly erroneous'' standard. If a discretionary downward departure is justifiable, it is difficult to understand why anyone would be opposed to the appellate courts reviewing them under the same standard that applies to other important areas of law.

I wish to take a moment to remind everyone to focus on the problem we face: an epidemic of abuse of our children. According to the National Center for Missing and Exploited Children--these facts really are not only astounding, they are deplorable--in our country, 3.9 million of the Nation's 22.3 million children between the ages of 12 and 17 have been seriously physically assaulted, and 1 in 3 girls and 1 in 5 boys are sexually abused before the age of 18. That is unbelievable, but that is what is going on, and that is why this bill is so important. That is why we need to pass it today.

Considered in this context, we can have an honest debate about the issues, but we have an epidemic that needs to be addressed and addressed now. We simply have no greater resource than our children. It has been said that the benevolence of a society can be judged on how well it treats its old people and how well it treats its young. Our children represent our Nation's future, and I commend all of my colleagues for their tireless efforts on behalf of children and families and urge my colleagues to pass this critical legislation. Quite frankly, our Nation's children deserve no less.

I know there are some misunderstandings from the conference, but virtually everybody but a number of Democrats have signed off on this, including a number of Democrats have signed off on this conference report, knowing what it says, knowing what it means, knowing what it was represented to mean. I acknowledge some of my dearest friends on the other side feel otherwise, but I believe it was made quite clear during conference what this actually means.

I urge my Democratic colleagues to stop any partisanship or partisan gamesmanship and support this needed legislation. I do not think we should let our children or our communities down. We need to pass this legislation without delay and send it to the President.

The epidemic of downward departures in child pornography cases has created what I like to call the ``Me Too'' sentencing pitch from the defense. In a recent case in Kansas, the judge departed from the Sentencing Commission's guideline sentence of 27-33 months in prison, and imposed only probation. As part of the reason for the departure, the court stated that it found defense counsel's argument compelling-- that in 27.4 percent of cases involving possession of child pornography, sentencing courts have downwardly departed. In other words, the problem is so out of hand, that defense attorney's point to the downward departure statistics and say, ``Me too, Judge, Me Too.''

That is where we are. That is what we are trying to fix. I have to say I have done my best to try to accommodate both sides. I do not know how to accommodate them any differently. Even as late as today, I have tried to see if there was any possibility, but there is not any. I think those who stayed for the full conference knew exactly what was involved, and it is a bipartisan bill. That is apparent from the size of the vote over in the House.

I yield the floor.

Mr. President, I don't know anybody on the Senate floor who can roar better than my ``lion'' friend from Massachusetts. He is a great Senator. And he certainly feels very deeply on this issue. Apparently I have irritated him, and I feel sorry about that, but he is totally wrong in what he says. I can see why he might feel that way.

Now, let me just say this, that I believe the letters that he was referring to, with regard to the courts of this country complaining about this, were before the compromise we enacted in this particular conference report. I got a lot of complaints, too. That is why I tried to make the change and worked it out with Chairman Sensenbrenner and others in the House who were not very happy to make the change.

My friend called and said: Can you do something in this area? I said I would try, which I did. And we came up with the Hatch-Graham- Sensenbrenner amendment. I apologize for my voice, but I have semi- laryngitis. But we came up with the Hatch-Graham-Sensenbrenner amendment, which I believed moved this in the right direction and I thought would please my friend from Massachusetts, but it did not.

Now, it needs to be pointed out that this is a bipartisan conference report. On the Senate side, we voted for this report 5 to 2, meaning it was bipartisan. On the House side, they voted in larger numbers for this report.

I have to mention that neither the distinguished Senator from Massachusetts nor the distinguished Senator from Vermont signed the conference report, so they did not agree with it. And I understand that they are upset about the language in the report. I cannot help that.

But we are talking about only 2 percent of the cases that are affected by this departure language--only 2 percent of all the cases. I thought I did a pretty good job in getting it done.

I have to mention one other thing: the distinguished Senator from Massachusetts talking about a blacklist for judges, because he claims that these reports have to be sent to the Attorney General.

Well, remember, sometimes Attorneys General are Republican and sometimes they are Democrat. I think most Attorneys General really try to do a good job. I know the current one is trying to do his best job against crime in this society. The current Attorney General approved and was for the original Feeney language--which we changed--and so were many Members of the House. They were not happy with this change.

Let me just make some points here that are important. It is not surprising that the American Civil Liberties Union, the Federal Public Defenders, the American Bar Association, and the Judicial Conference have opposed the Feeney amendment.

One seriously wonders what would have been heard from the ABA, the ACLU, the Leadership Conference on Civil Rights, and others if upward departures--in other words, making it tougher on crime--had grown at the absurd and dizzying rates that downward departures have.

Can anyone seriously believe that they would have been asking for more time to study this issue if upward departures had gone out of control, like these downward departures, that are skyrocketing?

So everybody in our country understands, we have judges on the bench--not many, but enough--who, in these child molestation, child degradation, and child pornography cases--these children's criminal cases--who are continually reducing the sentences recommended by the Sentencing Commission for these criminals who are hurting our children.

Look at this chart. Since 1991, when there were 1,241 downward departures--or lesser sentences for these types of people--we are now up to 4,098 in 2001. And I am sure it was much higher for 2002 and that for 2003 it will be much higher.

Can anyone seriously believe that these liberal groups would be asking for more time to study this issue, as is being asked for here? I suspect there would be a loud, steady drumbeat for swift legislative action by Congress to stop such an outrage--not more time for the Sentencing Commission to study the issue--that is, if the upward departures, in other words, the tougher on crime departures, were followed by the courts. Well, that isn't the case. These are downward departures, making it easier on these pedophiles, sex criminals, child rapists, child pornographers.

I further suspect that these groups would not have waited as long and as patiently as we have in watching downward departures increase steadily year after year, making it easy on criminals who do these types of things to our children.

Additionally, I am not surprised the Judicial Conference is opposed to this amendment, if it is.

It is important to note, however, the compromise is limited to these serious crimes against children and sex crimes. But because the problem of downward departures is acute across the board, the compromise proposal would direct the Sentencing Commission to timely conduct a thorough study of these issues, develop concrete measures to prevent and limit this abuse--this abuse of downward departures, making it easy on child molesters--and report these matters back to Congress.

In fact, to place this matter in historical context, in debate on the Sentencing Reform Act, the distinguished Senator from Massachusetts observed, with respect to the Judicial Conference and sentencing disparity, the following:

With all due respect to the Judicial Conference, the judges

themselves have not been willing to face this issue and to

make recommendations and to try and remedy this situation.

He acknowledges that some judges are out of control on these issues. And I think this chart shows they are out of control in children's cases, and it is time to stop it. That is what this bill does.

Along these lines, consider the following disparity, demonstrating the increasing undermining of the sentencing guidelines by some of these judges. The average downward departure rate for nonsubstantial assistance cases in the Fourth Circuit is 5.2 percent, while in the Tenth Circuit it is 23.3 percent. The average downward departure rates are making for easier sentences for these sex criminals. It is this type of sentencing disparity that risks turning our criminal justice system of sentencing into--to borrow yet another phrase from Senator Kennedy on this issue--``a system of roulette.''

I urge support for this conference bill. It squarely increases punishment for child-related crimes and ensures that those who commit these crimes are incarcerated accordingly. And it says the game is over for judges: You will have some departure guidelines from the Sentencing Commission, but you are not going to go beyond those, and you are not going to go on doing what is happening in our society today on children's crimes, no matter how softhearted you are. That is what we are trying to do here. We are tired of it. I am tired of having children abused. This bill will go a long way toward stopping that kind of abuse.

Let me talk about departure rates and the amounts for child-related crimes. The conference report addresses the glaring penalty gaps that exist in the sentencing guidelines. The bill represents a compromise from various points of view. I did my best to try to get a compromise that I hoped my colleagues on the other side would be happy with.

They are not, some of them. But I have to say that the distinguished Senator from Delaware was. He voted with us on this conference report, as he should have. I believe others on the committee should have also. For instance, there was one view that believed all downward departures should be banned, all of them. That was a view by some. The Feeney amendment, approved in the House before conference, moderated that view by merely limiting departures. I cosponsored an amendment in the conference with Chairman Sensenbrenner and Senator Graham that we have been talking about that went even further by limiting departures related to crimes victimizing children. This bill puts a stop to the very troubling practice of certain trial courts which depart from the sentencing guidelines in crimes involving children and sex crimes.

The following very troubling statistics related to child crimes demonstrate why this is necessary. According to the Sentencing Commission's 2001 Sourcebook of Federal Sentencing Statistics, trial courts reduce the sentence of those convicted of sexual

abuse of children from the guidelines over 16 percent of the time. Think of it. Why do we have these sentencing rules to begin with if they are not going to be followed, especially in these children's cases?

On average, child courts reduce the sentences of those convicted of sexual abuse by an astonishing 63 percent from the guideline range. I would think my colleagues would want to put a stop to that kind of inappropriate decisionmaking by some judges. For those convicted of pornography and/or prostitution-related offenses, trial courts departed from the recommended guidelines over 18 percent of the time, reducing these defendants' sentences by a staggering 66 percent. Think about it. We are going to let that continue just because some of these groups don't like it or want to be more compassionate towards these criminals? This many departures and this amount of sentencing reductions are astounding given the trauma inflicted on victims of these particular types of offenses, and require us in Congress to step in and ensure the sentences in these areas remain uniform and consistent with national expectations.

Let me add an overall perspective to this compromise. The compromise agreed to in conference will affect only crimes against children and sex crimes; that is, sexual abuse, pornography, prostitution, and kidnapping/hostage taking. These types of cases represent only 2 percent of the Federal criminal caseload. This is only 2 percent of the cases that would have been affected by the original Feeney amendment-- they all would have been affected by the original Feeney amendment--and only 2 percent of the cases that would have been affected by the version that passed the House by an overwhelming 357 to 58 vote. And we have complaints about this?

Hopefully in the future the Sentencing Commission will more closely monitor these types of disparities and will step in to fix these problems in a timely manner. However, when they do not, it is incumbent upon the Congress to do so. That is precisely what this bill does. We say in this bill: We are sick of this, judges. You are not going to do this anymore except within the guidelines set by the Sentencing Commission. There will be downward departures, but they will meet the guidelines and not just be off-of-the-top departures like the 190 pound man, five feet 11, almost six feet tall, who had committed a child crime and got reduced 400 percent or more.

It is absurd to suggest the Sentencing Commission should be given time to study this issue. The Sentencing Commission has been aware that Congress was greatly concerned about this problem since the year 2000, even before then. Indeed, these very issues were squarely raised with the Sentencing Commission during the Senate hearing in October 2000. Both Senators Thurmond and Sessions directed many questions at the commissioners and others about their concerns that trial judges systematically undermine the sentencing guidelines by creating new reasons to reduce these sentences.

Indeed, Senator Sessions expressed his concerns about the troubling trend of departures based on novel and creative reasons directly to the chair of the Sentencing Commission.

Senators Thurmond and Sessions were assured the Sentencing Commission intended to address this issue by including it in a larger report due November 2002, addressing how well the guidelines were accomplishing the statutory purposes of sentencing. It is now 6 months beyond the due date, and no such report has been produced. In fact, the Sentencing Commission announced just this past March it has completed portions of the report on cocaine sentencing and surveys related to Federal judges.

However, as to the departure issues raised at the Senate hearing, the Sentencing Commission continues to study the issue, 2 years, 3 years later. It is apparent this issue, while an obvious priority to the Congress, is simply not a priority to the Sentencing Commission. And we have done something about it in this conference report that has bipartisan support. After having decided we can no longer be held hostage to the schedule set to study this issue by the Sentencing Commission, only to watch it unilaterally change, action is now even more necessary.

It has now been over 2 years since Congress highlighted this problem in an oversight hearing. Further delay would effectively abdicate our responsibilities as legislators and politically accountable members of our society, something the Sentencing Commission and the ACLU and the ABA and other groups are not.

With regard to the Hatch-Sensenbrenner-Graham compromise amendment, this amendment limits, but does not prevent, downward departures only to enumerated factors for crimes against children in sex offenses including, one, kidnapping; two, kidnapping involving a minor victim; two, sex trafficking of children; three, sexual abuse crimes; four, sexual exploitation and other abuse of children; five, transportation for illegal sexual activity and related crimes; and, six, obscenity. Changes in the standard for review of sentencing matters for all cases in Federal courts to a de novo review while factual determinations would continue to be subjected to ``a clearly erroneous'' standard.

We require the courts to give specific and written reasons for any departure from the guidelines. That is a logical thing to do. We require the judges to report sentencing decisions to the Sentencing Commission. They don't like that because that means more work. I have to confess, I sympathize somewhat with these judges because they are being paid less than a number of law review graduates in their first year in private practice. The fact they don't want to increase their workload, I don't blame them for that. But it seems to me in this case, it is certainly justified.

Contrary to the oft repeated claims of the opponents, the compromise proposal is not a mandatory minimum. Judges handling these important criminal cases can sometimes exercise discretion to depart downward, but only when the Sentencing Commission specifies the factors that warrant a downward departure, only when they have the right to do so as listed by the Sentencing Commission. That seems to me just a gimmick. Yet we have had all this fuss and bother over this.

Requiring de novo review of a trial judge's application of the facts to the law is totally reasonable. This is the same standard that applies to appellate review of critical motions to suppress physical or testimonial evidence. There is no reason for appellate judges to give deference to the trial judge in such questions of law.

Even after my compromise amendment, the trial judge's factual determinations would still be subject to great deference under a ``clearly erroneous'' standard. If a discretionary downward departure is justifiable, it is difficult to understand why anyone would be opposed to the appellate court's reviewing them under the same standard that applies to other important areas of law.

I hope my colleagues are not obstructing this bill, because they are upset they didn't get their way in the conference--when, in fact, they were defeated 5 to 2 on these issues. To suggest the conference report suffers from a procedural flaw, I think, is going way too far. They argue, incredibly, that the Hatch-Sensenbrenner-Graham amendment to the Feeney amendment to the House bill was improperly modified in conference. That is simply ridiculous and we all know it. What occurred was straightforward.

In response to Democratic concerns raised about the drafting of the Hatch-Sensenbrenner-Graham amendment to the conference report, we made a number of technical changes to comport with Democratic Senator Biden's understanding of the amendment, as well as concerns raised by a Congressman during the conference, as to the meaning of one particular provision. In good faith, my staff addressed these technical drafting issues and made certain revisions to comport with these Democratic suggestions.

Senator Biden was right. I agreed with these changes. Senator Biden agreed with these changes as well. He voted for the conference report. Keep in mind these changes had the effect of cutting back on the restrictions contained in the Feeney amendment as it applies to sentencing decisions by judges to ensure that the restrictions apply only in a limited category of cases. In the end, Democratic members

to the conference report--Senator Biden and Representatives Frost, Hinojosa, and Matheson--all supported the conference report.

For some Democratic members to now complain about the process is simply unfair, and I question those positions. I would like to refer to the transcript my colleague was referring to because he believes I represented one thing when in fact I meant another.

Let me start with line 759:

Chairman Hatch. The proposed amendment would, and I hope my

colleague from Massachusetts will listen carefully to this--

Ted, if I could get you to listen to this.

Senator Kennedy. Yes.

Chairman Hatch. Because, hopefully, this will help some of

your concerns.

The proposed amendment would limit, but not prevent,

downward departures only to enumerated factors for crimes

against children and sex offenses, including: one, kidnapping

at Section 1201; two, sex trafficking of children, Section

1591; three, sexual abuse crimes, Chapter 109(a); four,

sexual exploitation and other abuse of children, Chapter 110;

and five, transportation for illegal sexual activity and

related crimes. That's Chapter 117, and also Chapter 71,

dealing with obscenity, I've been informed.

It will change the standard for review of sentencing

matters for appellate courts to a de novo review, while

factual determinations would continue to be subject to the

``clearly erroneous'' standard.

It would require courts to give specific and written

reasons for any departure from the guidelines.

It will require judges to report sentencing decisions to

the Sentencing Commission.

The Sentencing Reform Act of 1984 was designed, as Congress

wrote in the text of that bill, ``to provide certainty and

fairness in meeting the purposes of sentencing, avoiding

unwarranted sentencing disparities among defendants with

similar records who have been found guilty of similar

criminal conduct.''

Now, while the United States Sentencing Commission

promulgated sentencing guidelines to meet this laudable goal,

courts have strayed further and further from this system of

fair and consistent sentencing over the past decade.

The rate of discretionary downward departures, excluding

downward departures for defendants' cooperation, has

increased virtually every year since 1991.

But now Chairman Sensenbrenner--and I don't know whether the Senator from Massachusetts was there at the time; maybe he was not there. Chairman Sensenbrenner made it very clear. He said:

Now there are several other issues that I think have got to

be addressed. First of all, with respect to the standards of

appellate review, that applies to all cases and it is a de

novo review.

That is what we understood.

This is in direct response to the Supreme Court's decision

in the case of Koon v. United States. Now, you may recall

this involved a conviction for a civil rights violation of

one of the police officers accused of beating up Rodney King,

which we all saw on TV.

The point is, I think everybody else there recognized what the Hatch- Sensenbrenner-Graham amendment was meant to be. I feel badly that my colleague feels like he was misled, because I don't think I misled him. I think the language I just read shows I didn't. I acknowledge and I express sorrow that he feels the way he does. I feel badly he feels the way he does because I would never deliberately mislead a colleague under any circumstances. I might make a mistake or forget something I might have said earlier, or something like that, but I would never deliberately mislead a colleague. I certainly didn't in this case. I don't think anybody there understood it the way it is being seen through the eyes of some on the other side.

I think to blow up this conference report over this is not only a mistake, it is a failure to recognize the tremendously irritating and damaging downward departure situation going on in the country today-- letting these criminals off with regard to children's crimes.

I would add that the Reno Justice Department argued in the Koon case for a de novo standard for appellate review. This was the right argument to make.

Let me finish first. It was a position supported by the Congressional Black Caucus. I have a copy of that letter. Let me read it:

As members of the Congressional Black Caucus, we are

writing to you because of our concern about the sentencing of

Officer Laurence Powell and Sergeant Stacey Koon by Judge

John Davies in the Rodney King civil rights case.

We are troubled that the sentence for the crime was reduced

to 30 months upon the court's consideration of mitigating

facts. Such a reduction for mitigating factors may be

appropriate in other circumstances. However, we feel that the

defendant's special status as police officers, with special

duties owed to the public, should have militated against such

a significant reduction.

As you well know, the maximum possible penalty was ten

years and fines of up to $250,000. Your federal prosecutors

were asking for seven to nine years. Our federal sentencing

guidelines recommended minimum sentences in a range of four

to seven years in prison.

Instead, Judge John Davies made broad use of subjective

factors. He stated that he read only letters addressed to him

from the friends and families of Officer Powell and Sergeant

Koon. He argued that much of the violence visited on Rodney

King was justified by King's own actions. However, these

officers were convicted on charges of violating Rodney King's

civil rights. We believe these mitigating factors did not

justify so large a reduction given the defendants' special

responsibilities as police officers.

In addition, Judge Davies did not afford proper weight to

the racist comments made over police radio by those convicted

on the night of the beating in discounting race as a

motivation for the beating. He similarly failed to take into

account the remarkable lack of remorse shown by Officer

Powell and Sergeant Koon since their conviction.

People of good will all over this country and of all races

were heartened when Officer Powell and Sergeant Koon were

convicted by a jury of their peers, a verdict made possible

by the Justice Department's resolve to file civil rights

charges and by the phenomenal performance of federal

prosecutors. With these severely reduced sentences, however,

we are sending a mixed message. Are police officers going to

be held responsible for excessive use of force or not?

We think what has been lost, in all this, is that police

officers have an enhanced responsibility to uphold the law.

Notwithstanding Judge Davies' authority to modify the

sentencing guidelines, most experts agreed that the minimum

four to seven years sentence should have been followed in

this case.

We realize that the trial judge is afforded sufficient

latitude in sentencing, but we urge the Department of Justice

to appeal these sentences. We need to reexamine these

sentences so that justice can finally be done in this

difficult, painful case. Only then can we begin to put this

behind us.

It is signed by a large number of good Members of Congress.

What we have proposed is that there should be de novo review. We set a standard that is not an easy standard to overcome. We have shown that we have an outrageous situation in this country where a number of judges have been giving extra downward departures far in excess of what anybody in their right mind would think they should do.

This is happening in criminal cases where children are victims, and we are trying to stop that because we think there has to be responsibility here. We believe that in these child molestation cases, pornography cases, prostitution cases, child rape cases, and kidnaping cases the sentencing guidelines ought to be followed.

Nothing says these judges cannot follow the downward departure guidelines if they so choose in their discretion as the trial judges, but they can no longer conjure up reasons outside the guidelines to reduce criminals' sentences.

Basically, that is what the conference report says. I would think everyone in this body would vote for this conference report. I think it does it right and does what we said it would do in the conference, and it does what a bipartisan majority in the House and the Senate said it should do. Frankly, I believe that is right.

Yes.

I personally believe we can do that. We did have a hearing in 2000. The hearing was extensive and led to this legislation. By the way, the number on the chart excluded departure requests made by the prosecutors under Section 5K1.1 of the Guidelines, when a defendant provides ``substantial assistance'' to the government. We counted 4,098 downward departures excluding the so-called ``5K1.1 motions'' made by the government. The number of downward departures has risen from 1,241 in 1991. Any Senator should see that this increase is the reason for our concern.

I do not disagree with the distinguished Senator. I think it would be good to find out what the Senator wants to know, and that is, if I understand him correctly, he is asking for a hearing on downward departures.

Yes.

I would certainly ask the Subcommittee on Crime to do that.

Let me interrupt the Senator for one second. I agree with the Senator. I have seen the girlfriend courier go to prison for 10 years when she did not even know what was in the package, or at least claimed she did not, while the boyfriend, the drug dealer, pleaded State's evidence and gets off. Frankly, I do not like that either.

I think we should hold hearings on this, and I will be happy to recommend it to the Crime Subcommittee or if it should be elevated to the full committee, we can perhaps do that. I appreciate the distinguished Senator's willingness to try and help us resolve this today because this bill needs to pass. I do not see how anybody can refute what I have been saying here. I do not see how anyone would not want to get tougher with sentencing with regard to these sexual crimes, especially when they have gone way outside the downward departure limits the Sentencing Commission gives them. We do not stop trial judges from granting downward departures, but they should be done in compliance with the purposes of the sentencing guidelines.

I am not willing to redo this bill because the conference is over. A vast majority has supported it in the House--a huge majority--and a bipartisan majority on the conference. But I am certainly willing to look at it. If we need to modify what we have done here today, I will certainly look at that.

I feel badly the distinguished Senator from Massachusetts feels he was misled, but I do not see how he was misled. I can see there was an ambiguity if one did not look at the whole record. He may not have been there when we decided to use Chairman Sensenbrenner's language, which was clear and specific. I thought mine was clear, but Chairman Sensenbrenner's language was more clear than mine. I think everybody there understood.

The distinguished Senator from Massachusetts and the distinguished Senator from Vermont, the ranking member, the Democrat leader on the committee, refused to sign the conference report over perhaps this misunderstanding, but it is a misunderstanding, not a desire by me to do something that is improper.

I thank the distinguished Senator for his comments here today. Those are good points he made, and we will see what we can do.

Let me make a couple other comments before I finish. Let me provide some additional examples of sentencing departure abuse and why we want to change this and why this bill makes a very good step in the right direction.

In one case, a defendant who was convicted of possessing child porn images, over 280 images, more than 10 of which were clearly identified as prepubescent children, was sentenced to serve 13 months in prison and 14 months in home detention, even though the defendant's lawful guidelines sentencing range was 27 to 33 months in prison. Think about that.

At sentencing, the defendant threw in the kitchen sink and moved for a departure on multiple grounds. He argued that his status as a former prison guard rendered him as particularly susceptible to abuse in prison. He argued that he needed rehabilitation and treatment. I have no doubt. He argued his age and his wife's age, his extraordinary family responsibilities, and his military and work histories justified a departure. He argued he was entitled to a ``super'' acceptance of responsibility and argued his conduct was aberrant. Although the Government opposed all grounds of downward departure, the court imposed an illegal split sentence and allowed the defendant to spend 14 months of his 27-month sentence in the home.

Without explaining how many guideline levels it was departing, the court credited the defendant's claim that he was the only one who could take care of his wife, who had degenerative arthritis and had back surgery but nonetheless continued to work as a night janitor--his wife, that is. The court also credited the defendant's claim that, based on his service in the military and his civilian career in law enforcement, his criminal acts were aberrant. Remarkably, these winning arguments enabled the defendant to spend over half of his 27-month sentence in the home.

Now let me state why we need this reporting requirement to the Attorney General that the distinguished Senator from Massachusetts has inappropriately characterized. It is no secret that the Attorney General is in charge of every aspect of prosecuting cases in the Federal courts. Therefore, he has a direct interest in the disposition of criminal cases. Now let me give you a specific example as to why we need this reporting requirement.

There is a Federal judge who routinely violates the Sentencing Commission guidelines because he believes the Sentencing Commission erroneously calculated the sentencing guidelines. He does not depart much, just a little reduction in a sentence here and a little reduction there. But the fact is, he routinely does it. Now

the Attorney General may not have the resources to try to appeal each and every time this judge violates the sentencing guidelines. However, if an Attorney General is aware of someone routinely abusing this provision, this reporting requirement will allow him to monitor this and take action when appropriate. That is why we have the requirement in there.

Now let me give you another illustration, some more examples of what is going on here and what we are trying to correct with this bill.

A child pornographer was sentenced this year in Montana. Prior to sentencing, the court raised on its own motion that the defendant suffered from diminished capacity. The court ruled that this young man had extraordinary family responsibilities and that he suffered from a diminished mental capacity. The judgment notes, in part, United States Sentencing Guidelines section 5(k)(2)(13), diminished capacity: Defendant was extremely addicted to child pornography and the testimony of efforts established that defendant had a significantly impaired ability to control his behavior that he knew to be wrong; that the extent to which the reduced mental capacity contributed significantly and substantially to the commission of the offense. The Court departed downward 8 offense levels from offense level 18 to offense level 10. This reduced the guideline range from 27 to 33 months to just 6 to 12 months.

The trial court placed Clark on probation for 5 years.

I want to emphasize again a disturbing fact here about child pornographers. A Bureau of Prisons study shows that 76 percent of child pornographers and those who had been convicted of traveling in interstate commerce to commit sex acts with minors admitted to undetected sex crimes with an average of 30.5 child sex victims. Think about that. These child sexual predators, if you averaged them, admitted to undetected sex crimes with an average of 30.5 child sex victims. Can anyone really say that tougher penalties and sentencing reforms are not needed when it comes to these horrible crimes?

Does anyone believe that judges should be allowed to grant downward departures based on reasons that are not contemplated within the Guidelines themselves?

Now we have supporting letters for this conference report from the Department of Justice, the National Sheriffs' Association, the Law Enforcement Alliance of America, Major County Sheriffs' Association, Fraternal Order of Police, and the National Association of Assistant U.S. Attorneys.

One of the criticisms that has been raised about the conference agreement is that it limits the membership of Sentencing Commission to no more than three Federal judges. Currently, the law requires that the Sentencing Commission be comprised of at least three Federal judges. The hearings before the House and Senate Judiciary Committees showed that trial judges have downwardly departed from the sentencing guidelines to a level beyond what was originally intended. There may be an appearance of conflict of interest when judges, desiring to preserve judicial discretion, serve on the Sentencing Commission whose mission it is to ensure uniformity in sentencing, which necessarily means less judicial discretion.

Currently, judges outnumber other voting members of the Sentencing Commission. Because so, there is a potential for at least an appearance of a conflict of interest.

Now, I do not argue that there is a conflict or that they are acting improperly. I am proud of those who have served. But there is a different attitude in the courts, as Senator Kennedy has suggested. He has all kinds of letters from judges who do not like this. It means more work to them.

This change will, hopefully, restore the appearance of balance in the Sentencing Commission and eliminate any conflict between the commissioners' desire to retain judicial discretion and uniformity in sentencing.

Now, the National Center for Missing and Exploited Children, the NCMEC, expressed its thanks to the House of Representatives and Senate conferees on agreeing to the language included in the conference report of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act 2003. This was released April 9. NCMEC also expressed its hope that both Houses of Congress would move swiftly to approve the report and enact these important provisions into law. Children throughout the United States will be safer because these key leaders of the House and Senate were able to come together and reach consensus on so many vital issues--Robbie Callaway, chairman of the National Center for Missing and Exploited Children.

I ask unanimous consent that the comments in this press release, along with a letter from Robbie Callaway, who is with the Boys and Girls Clubs of America, along with the National Sheriffs' Association, along with the Law Enforcement Alliance of America, and Major County Sheriffs' Association, the Federal Law Enforcement Officers Association, the U.S. Department of Justice, be printed in the Record.

I notice the distinguished Senator from Vermont is in the Chamber. I yield the floor.

Mr. President, reserving the right to object, if this change were allowed, as the Senator's unanimous consent request asks, it would effectively kill this bill, and he knows it. If Senators on the other side of the aisle want to vote against this conference report, they can do so.

The point is that we are prepared to vote on this bill today and to get this to the President for signature before the impending recess so that there will not be any more children subjected to what Elizabeth Smart was subjected to, or at least we can have a better set of tools to solve these problems. Therefore, we cannot agree to this request.

I ask unanimous consent that the consent be modified so that there now be 30 additional minutes of debate on the conference report, to be equally divided in the usual form, and that following that time, the Senate proceed to a vote on adoption of the conference report, with no further intervening action or debate.

Then I object.

I object to the request of the Senator.

Mr. President, I now renew any unanimous consent request, without losing my right to the floor, that we have 30 additional minutes of debate on the conference report, to be equally divided in the usual form, and that following that time, the Senate proceed to a vote on adoption of the conference report, with no further intervening action or debate.

If the Senator will withhold, I will yield a few minutes to the Senator, but I first want to do this unanimous consent request.

Would the Chair explain what the parliamentary order is.

With that understanding then, I yield to the distinguished Senator from California.

Mr. President, I appreciate the remarks of the distinguished Senator from California. There is no question she and the distinguished Senator from Texas have been major movers of this legislation and she has been a strong supporter of the bill that this is attached to that does so much for children. I personally would have preferred to have just passed AMBER alert, but I am overjoyed we have this child legislation.

By the way, the judges did not have to report to the Congress, they only have to report to the Sentencing Commission, which is made up in part of judges. I wanted to correct that in the Record because I know my colleague will appreciate knowing that.

One of the most startling statistics is to find almost 4 million kids out of the 23 million children in our country between 12 and 18 have been abused. It is unbelievable. A study conducted by the Bureau of Prisons found that 76 percent of defendants convicted of child pornography or of traveling in interstate commerce to engage in sex with minors, admitted to undetected sex crimes, with an average of 30.5 victims; on average, 76 percent of people convicted of child pornography or of traveling in interstate commerce to engage in sex with minors, admitted to undetected--in other words, crimes that nobody knows about--sex crimes with minors with an average of 30.5 additional child sex victims. Every one of them.

It is time we get tough. This bill is a tough bill, as it should be. This bill will help solve some of the problems of society, as it should.

I have to confess, I have been underwhelmed by some of the arguments, underwhelmed by some of the arguments in this area. All I can say is that we do not do away with downward departures; they better be the departures allowed by the Sentencing Commission and not just conjured out of thin air by the judges.

I have to also confess the distinguished Senator from Massachusetts is continuously bringing up Justice Rehnquist and Justice Kennedy. Their letters were to the Feeney amendment which has been drastically modified by the Hatch-Sensenbrenner-Graham amendment. That argument, in and of itself, does not stand or hold water. I will not say that it is a misrepresentation, as has been indicated on the other side, but I will say it does not hold any water.

Now, there have been some complaints from some that the conference committee refused to pass a stand-alone AMBER alert and PROTECT Act bill. They complain that the conference bill contains measures that they had not considered and are opposed to including in the conference bill. We have a wonderful system of government in this country. Our system divides the Congress into two coequal branches of Government because that is the case. It is not unusual the legislation covering the same topics pass both Houses with language and subject matter that is not entirely the same. Just because the two legislative bodies do not agree on each and every provision, we do not simply walk away from the legislation. Instead, we convene a conference between the two legislative bodies in an attempt to harmonize the legislation.

Sometimes the conference between the two bodies reaches agreement, and sometimes the two bodies do not. In this case, we did. Both bills-- the House bill and the Senate bill--dealt with crimes that victimized children. However, the two bills were not identical in every respect. The House bill included significant provisions that add stiff punishments to those who actually victimize children, as well as other punishment-related issues.

The House passed a measure that would have provided for a study on volunteer background checks, but we from the Senate side insisted that the bill go further, to include a pilot program so the volunteers would have access immediately. A majority of the conferees, after considering all of the measures, have agreed to this conference bill.

While all may not agree to each and every specific compromise made by the conference, this bicameral system has succeeded in compiling and producing comprehensive child protective legislation. In fact, it would be safe to say that some of the 400 Members of the House who voted for this today, who voted for this conference bill, agreed to each and every provision in the conference bill, but as with every piece of legislation, overall they voted to pass it.

That is how our system works. I urge my colleagues to vote in favor of this measure because this measure is a measure that can help to put an end to some of these crimes against children that are so affecting our society.

I want to pay tribute to John Walsh, to the people who run the Boys and Girls Clubs of America, and my friend, Wintley Phipps, who runs the Dream Academy to help children of prisoners who have family members in prison; to bring mentors and tutors into their lives to help them come into the digital world and brings mentors and teachers to help them understand computers, to help them understand there is a better way. Many of these kids, 65 to 85 percent of them, depending on the jurisdiction, would go to crime themselves.

I want to compliment those groups I mentioned and many others I wish I had time to mention, who are fighting these battles on the front lines against these child molesters, pornographers, rapists, et cetera. They deserve our respect and they deserve this legislation.

We all deserve this legislation. As a father of 6 children, and a grandfather of 21, I have to tell you I want all my kids and grandchildren protected. My kids are now adults so hopefully they can protect themselves, but my grandchildren by and large are not. I am worried about children all over this country. When you think the average convicted child molester has personally abused 30.5 kids, it is time to get tough on them. Frankly, it is time to quit playing games with the sentencing guidelines in this area.

I don't see why judges should be offended or concerned if we have them review decisions on guidelines, downward departures by the lower court, especially when those departures are unjustified, unwarranted, and in many cases ridiculous.

Let me address something else that has me deeply troubled about what I have heard on the floor about the main complaint by our friends on the other side--some of our friends on the other side; very few, I believe. I believe the vast majority of Democrats are for this bill. I hope they will vote for it. I will be shocked if they do not.

But the main complaint by Democrats appears to be they do not like this compromise that provides for meaningful review of the sentencing guideline provisions. Why anyone would oppose provisions that simply grant appellate courts the opportunity to give meaningful review to criminal sentences is just simply beyond me. The House had Sentencing Commission

hearings. The Senate has had Sentencing Commission hearings--regardless of the representations by my distinguished friend from Massachusetts. We had extensive hearings back in the year 2000. We all know a lot about this.

This measure, through compromise, has taken steps to address a growing problem both bodies identified in guideline sentencing.

But I am even more troubled by remarks I have heard or read from the Associated Press, where Republicans were accused of:

. . . kidnapping the AMBER alert bill in an attempt to

achieve partisan and wholly unrelated goals, getting judicial

sentencing guidelines.

Understand, those who support this bill want to strengthen punishments. That is what the supporters have voted for; that is what the supporters who plan to vote for this bill want.

However, the insinuation that supporters of this bill have kidnapped anything is offensive. I am appalled that was said in public and in the press.

The AMBER alert provision is named after Amber Hagerman, from Arlington, TX. This child was kidnapped and murdered. This tragic crime has led to AMBER alerts in various States and is one of the provisions included in this bill for nationwide implementation. To invoke her name in connection with kidnapping is simply offensive. I suspect that when her family reads about that, instead of feeling proud about a law that is named in Amber's memory, this kidnapping reference in connection with her name will only prove more hurtful.

Let's put these unwarranted snipes--and that is what they are--aside. Let's vote on this bill and send it to the President immediately. It will be signed by Easter and those criminals who even think of stepping outside the law with respect to any of these offences will know the full weight of the law will be brought down to bear on them.

Mr. President, I again urge my colleagues to pass this bipartisan compromise agreement. The House of Representatives passed this legislation this morning by a vote of 400-25. I am pleased we will act tonight by voting on this critical measure to protect our children.

This bill enjoys widespread support, and the need for the measures contained in the bill is well demonstrated. Law enforcement organizations around the country have expressed their support for this bill. Victims' families and citizens alike have done so. Earlier I read a letter we received from Elizabeth Smart's family in support of the bill. Even citizens from Senator Kennedy's home State of Massachusetts--such as Maggie Bish whose daughter Molly, was abducted in 2000 and hasn't been found--have expressed their support for this legislation.

I now urge my colleagues to vote in support of this bill and forward it to the President for his signature as soon as possible.

I know that some on the other side do not agree with each and every measure contained within it. I suspect that there are those among the 400 Members in the House who voted for this conference bill did not agree with each and every provision. They might not have agreed with the specifics of Representative Feeney's amendment. However, overall, they believed that the conference bill includes child protection measures that will ultimately benefit those in our society who are most vulnerable.

The fact is, this legislation has many provisions that will help prevent crimes against children, as well as help keep those who prey upon the innocent out of our society and away from our children. I am not going to list all of them again here. But I note that provisions such as the AMBER Alert and Code Adam systems will allow the public to assist law enforcement in the timely search for and safe return of child victims. Stronger penalties for pedophiles and child molesters, and especially recidivists, will ensure that those who victimize children will stay behind bars where they deserve to be. Enhanced investigative tools will enable law enforcement officers to prosecute those who exploit children. The sentencing reforms will prevent sentencing abuses in cases involving child and sexual crimes where too often we have seen lenient sentences imposed. They will also ensure that appellate courts can adequately review sentences by district courts.

Mr. President, I would also like to take this opportunity to recognize the tireless work of the dedicated staff members on both sides of the aisle whose work around the clock made this legislation possible. First, on my staff, I want to specifically commend my former staffer Wan Kim, who recently re-joined the United States Attorney's Office for the District of Columbia as an Assistant United States Attorney. He, along with Mike Volkov, Reed O'Conner, Jennifer Wagner, Ted Lehman, Dabney Friedrich, and my Chief Counsel and Staff Director Makan Delrahim, all poured their hearts into this legislation. On Senator Leahy's staff, I want to thank Julie Katzman, Steve Dettelbach, Tara Magner, Jessica Berry, and Ed Pagano. On Senator Biden's staff, Neil McBride, Tonya Robinson and Eric Rosen. On Senator Session's staff, William Smith and Andrea Sanders. On Senator Grassley's staff, Chad Groover. On Senator Graham's staff, James Galyean. On Chairman Sensenbrenner's staff, I want to commend Will Moschella, Phil Kiko, Jay Apperson, Beth Sokul, Katy Crooks and Sean McLaughlin for their hard work and dedication.

It is time for us to vote.

I ask for the yeas and nays.

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

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

Mr. President, I ask unanimous consent that the vote with respect to this conference report occur at 6:40 today, and that immediately following that vote, the Senate proceed to executive session and a vote on calendar No. 60, the nomination of Ross Swimmer, to be Special Trustee for American Indians; further, I ask consent that following that vote, the President be immediately notified of the Senate's action, and the Senate then resume legislative session.

Mr. President, I move to reconsider the vote.

I ask for the yeas and nays.

Mr. President, I rise today to join with my colleagues in introducing the Child Custody Protection Act and express my strong support for this important piece of legislation. Similar legislation was previously introduced in past sessions of Congress but, and I am sad to say, never was signed into law. However, I hope that today is the beginning of a new day to help protect the health and safety of children while safeguarding the rights and responsibilities of parents.

This bill is a reasonable effort to build upon two basic points with which many agree--despite other longstanding differences. The first is the desirability of parental involvement in a minor's abortion decision, and the other is the need to protect a pregnant minor's physical health.

This bill does not supersede, override, or in any way alter existing State parental consent or notification laws. Nor does this bill require States to implement their own parental involvement laws. The Child Custody Protection Act simply makes it a Federal offense to knowingly transport a female minor across a state line, with the intent that she obtain an abortion, in circumvention of State laws requiring parental consent or notification.

This bill, I would emphasize, is not a Federal parental involvement law; it merely ensures that State laws are not evaded through interstate activity. The Federal Government is not trying to tell the States how they must act and when, and this bill is not forcing parents to be good parents. This legislation strengthens the effectiveness of State laws, which is where the issue is best addressed and enforced. If we fail to pass this bill, we would be choosing to ignore the legitimacy and constitutionality of States to create and pass laws that specifically address the needs and desires of its citizens, especially when it comes to the health and safety of children.

The Child Custody Protection Act is a reasonable and rational approach to fixing a serious problem. In most places, a school nurse cannot provide an aspirin to a student for a headache without permission from the parent. Students cannot go on field trips without parental approval. Some report cards need a parent's signature to verify the parent knows how their child is performing academically.

This bill is not addressing something relatively trivial; it is drawing attention to a very serious medical procedure and protecting the health and safety of young girls. States that choose to implement parental notification laws because of their concerns with the well- being and safety of children should have every tool necessary to enforce their own laws.

An abortion is a risky medical procedure, especially for young teenagers. This bill is designed to protect children from the health and safety risks associated with abortion. In many cases, only a young girl's parents know of her prior psychological and medical history, including allergies to medication and anesthesia. Many other medical procedures in this country require the

consent of parents before they are performed. Also, parents are usually the only people who can provide authorization for post-abortion medical procedures or even release important information from family physicians. Given all of these other important medical situations that require parental consent, it is only reasonable and logical to recognize and enforce a States law asking for parental consent or notification for certain abortions.

We all know how contentious the issue of abortion can get around here, and across the country. But this matter is not really even about abortion. This bill is simply about protecting the health and safety of minor children and the rights that their own States have concluded their parents should have.

I would urge all of my colleagues to support this legislation and prevent circumvention of State laws, especially when the health and safety of children is involved.

Mr. President, I rise today to join with my colleagues in introducing the Child Custody Protection Act and express my strong support for this important piece of legislation. Similar legislation was previously introduced in past sessions of Congress but, and I am sad to say, never was signed into law. However, I hope that today is the beginning of a new day to help protect the health and safety of children while safeguarding the rights and responsibilities of parents.

This bill is a reasonable effort to build upon two basic points with which many agree--despite other longstanding differences. The first is the desirability of parental involvement in a minor's abortion decision, and the other is the need to protect a pregnant minor's physical health.

This bill does not supersede, override, or in any way alter existing State parental consent or notification laws. Nor does this bill require States to implement their own parental involvement laws. The Child Custody Protection Act simply makes it a Federal offense to knowingly transport a female minor across a state line, with the intent that she obtain an abortion, in circumvention of State laws requiring parental consent or notification.

This bill, I would emphasize, is not a Federal parental involvement law; it merely ensures that State laws are not evaded through interstate activity. The Federal Government is not trying to tell the States how they must act and when, and this bill is not forcing parents to be good parents. This legislation strengthens the effectiveness of State laws, which is where the issue is best addressed and enforced. If we fail to pass this bill, we would be choosing to ignore the legitimacy and constitutionality of States to create and pass laws that specifically address the needs and desires of its citizens, especially when it comes to the health and safety of children.

The Child Custody Protection Act is a reasonable and rational approach to fixing a serious problem. In most places, a school nurse cannot provide an aspirin to a student for a headache without permission from the parent. Students cannot go on field trips without parental approval. Some report cards need a parent's signature to verify the parent knows how their child is performing academically.

This bill is not addressing something relatively trivial; it is drawing attention to a very serious medical procedure and protecting the health and safety of young girls. States that choose to implement parental notification laws because of their concerns with the well- being and safety of children should have every tool necessary to enforce their own laws.

An abortion is a risky medical procedure, especially for young teenagers. This bill is designed to protect children from the health and safety risks associated with abortion. In many cases, only a young girl's parents know of her prior psychological and medical history, including allergies to medication and anesthesia. Many other medical procedures in this country require the

consent of parents before they are performed. Also, parents are usually the only people who can provide authorization for post-abortion medical procedures or even release important information from family physicians. Given all of these other important medical situations that require parental consent, it is only reasonable and logical to recognize and enforce a States law asking for parental consent or notification for certain abortions.

We all know how contentious the issue of abortion can get around here, and across the country. But this matter is not really even about abortion. This bill is simply about protecting the health and safety of minor children and the rights that their own States have concluded their parents should have.

I would urge all of my colleagues to support this legislation and prevent circumvention of State laws, especially when the health and safety of children is involved.

Madam President, I rise today to express my support for the CARE Act, which is currently before the Senate. This bill is dedicated to improving the incentives for individuals and corporations to donate to charitable entities.

Through their generosity, Americans have shown their true colors as a compassionate, caring people. Unfortunately, many charities have had a difficult time raising money since the tragedy of September 11, as the economy has remained weak. This bill, which is a priority for President Bush, will help America's charities to continue their invaluable work.

I applaud the leadership of Chairman Grassley and Ranking Democrat Baucus in getting this bill through the Finance Committee and onto the Senate floor. I also applaud the perseverance of Senators Santorum and Lieberman, who have championed this bill for many months and have kept at it despite the discouragement of not being able to get the unanimous consent needed to bring it to the floor until very recently.

The CARE Act includes several important incentives to encourage additional contributions to charity. One of the more important ones is the provision to allow individuals who do not itemize to take a deduction under certain circumstances. I am particularly pleased that the Finance Committee chose to craft this incentive as a targeted provision, rather than as a provision that would allow a deduction for the first dollar of contributions. Two-thirds of Americans do not itemize their deductions, but most of them do make contributions. Allowing a deduction for contributions that were already being made is not an incentive--it is a giveaway. The provision in the CARE Act encourages us to stretch and give more. It provides a much bigger incentive for Americans to donate that marginal dollar and it also lowers the cost of this provision to the Treasury.

I am also very pleased that the bill includes two other provision, which I have been promoting for some time. The first would simplify a complex area of the current law and eliminate significant roadblocks that now stand in the way of businesses with excess book inventory to donating those books to schools, libraries, and literacy programs, where they are much needed. Unfortunately, the current tax law benefits for donating such books to schools or libraries are often no greater than the tax benefits for donating such books to schools or libraries are often no greater than the tax benefits of sending the books to the landfill.

The provision in the CARE Act addresses the obstacles of donating excess book inventory by providing a simple and clear rule whereby any donation of book inventory to a qualified school, library, or literacy program is eligible for an enhanced deduction. This means that booksellers and publishers would receive a higher tax benefit for donating the books rather than throwing them away and would thus be encouraged to go to the extra trouble and expense of seeking out qualified donees and making the contributions.

The second provision deals with a problem that owners of S corporation have in donating their stock to charitable entities. Under the current law, a donor of S corporation stock worth $500 but having a tax basis of $100 would receive a deduction for ony the amount of the basis, or $100. A holder of shares in a C corporation, however, is allowed to deduct the full $500 value of the stock. There is no justification for this disparity in treatment between S corporation and C corporations, and a provision in the CARE Act corrects it.

I am also pleased that another provision, which Senator Lincoln and I added as a amendment to the bill in the Finance Committee, is included in the CARE Act. Similar to the books provision I mentioned before, this provision provides a larger deduction, and therefore a stronger incentive, for businesses to donate their excess inventory to charitable entities, such as schools or churches.

The CARE Act includes many worthwhile incentives designed to increase charitable contributions. Its enactment should make a real difference in our Nation.

There is, however, one portion of the CARE Act in which I am disappointed. As an offset, the bill includes a package of measures designed to crack down on abusive corporate tax shelters. While I am certainly not in favor of abusive tax shelters, I am concerned that part of this package of antitax shelter provisions, known as the clarification of the economic substance doctrine, could also close down legitimate tax planning techniques and give the Internal Revenue Service an unprecedented degree of authority to recast the tax treatment of transactions it does not like, regardless of whether the transactions are otherwise allowed under the tax law. The provision would also override a significant body of case law, some of which reaches back almost to the inception of the income tax.

I hope that the codification of the economic substance doctrine can be deleted in the conference with the House.

All in all, however, the CARE Act is a very good bill, and it deserves the support of the Senate. I urge all of my colleagues to vote for this bill.

Madam President, I am pleased today to speak in support of Dee Dodson Drell, who has been nominated to the United States District Court for the Western District of Louisiana, Alexandria Division.

Mr. Drell began his legal career with the U.S. Army Judge Advocate General's Corp upon graduation from Tulane University School of Law in 1971. He began his tour of duty as a defense counsel for courts martial, handling both misdemeanor and felony-level cases. He next moved to the position of prosecutor, during which time he was named Chief of Military Justice. He remained in that position until he completed his military service in 1975, after which he entered private practice.

Mr. Drell then joined the law firm of Gravel, Roy & Burnes. His practice focused primarily on personal injury, criminal defense and general civil litigation. In 1981, Drell joined the law firm of Gold, Weems, Bruser, Sues & Rundell, where he is currently a member and director. His primary areas of practice are insurance defense, contracts, employment law, health benefits and civil litigation.

Mr. Dell has a strong commitment to pro bono work that extends beyond his regular law practice. It includes work with organizations that provide services to people suffering from AIDS and AIDS-related illnesses. He provides legal services as a volunteer counselor for Central Louisiana AIDS Support

Services and AIDSLaw of Louisiana, Inc. He has also served as a legal advisor to the board of Shepherd Ministries, an ecumenically-based religious organization that provides services to the disadvantaged.

Throughout his career, Mr. Drell has won many accolades, such as recognition in Outstanding Young Men of America, 1976; designation as a Louisiana Bar Foundation Charter Fellow, 1998; and receipt of the Professionalism Award from the Crossroads-American Inn of Court, 2000.

I am confident that Mr. Drell will serve on the bench with compassion, integrity and fairness.

I yield the floor.

Madam President, I am also pleased today to speak in support of Richard D. Bennett, who has been nominated to the United States District Court for the District of Maryland.

Mr. Bennett is a distinguished practitioner whose career includes two terms of service with the United States Attorney's Office for the District of Maryland. His outstanding legal skills have been widely recognized, including mention in the 2003-2204 edition of The Best Lawyers in America.

Mr. Bennett began his legal career following his graduation from the University of Maryland School of Law in 1973. After graduation, he worked for the Baltimore law firm of Smith, Somerville & Case, where he specialized in insurance defense, as well as general civil and criminal litigation.

Mr. Bennett left private practice in 1976 to serve his first term with the U.S. Attorney's Office for the District of Maryland as Assistant U.S. Attorney. While there, he persecuted white collar crime, drug offenses, environmental violations, and virtually every kind of criminal case brought by the office. He served in that position until the end of 1980.

Next, Mr. Bennett and another former prosecutor formed a law partnership, Marr & Bennett, in early 1981. The practice specialized in federal and state litigation, with an emphasis on insurance and white collar criminal defense.

Mr. Bennett then merged his practice with the firm of Weaver & Bendos in 1989. He continued to specialize in Federal and State litigation.

In 1991, Mr. Bennett left Weaver, Bendos & Bennett to serve a second term with the U.S. Attorney's Office, this time as a U.S. Attorney, after being nominated by President George H.W. Bush and confirmed by the Senate. He served in that capacity until 1993.

Mr. Bennett has since returned to private practice as a partner with Miles & Stockbridge, one of Maryland's most prestigious law firms. His practice has increasingly focused on white collar criminal defense, government investigations, internal investigations, and grand jury practice. He served as Special Counsel to the Government Reform and Oversight Committee of the U.S. House of Representatives from August 1997 until June 1998.

Mr. Bennett has the support of both Maryland Senators, along with a unanimous ``Well Qualified'' ABA rating. With his legal acumen and experience as both defense counsel and federal prosecutor, I am confident that Mr. Bennett will make a fine jurist on the Federal bench.

I yield the floor.