Floor Statements

Madam President, I rise today to applaud this body for passing S. 3, the Partial-Birth Abortion Ban Act of 2003. I know the people of my home State of Utah share my sentiments because they recognize, as I do, that the practice of partial-birth abortion is immoral, offensive and impossible to justify. This procedure is so heinous that even many that consider themselves pro-choice cannot defend it.

While we have passed a similar measure before, it was never certain to be signed into law. Today it is. It saddens me that this legislation was even necessary, and even more that it took 7 years to achieve. I thank the Senator from Pennsylvania for his outstanding leadership in bringing this about. I hope he knows he has my admiration and respect.

Basic human decency has prevailed. I pray that never again will it be legal in this country to perform this barbaric procedure. Unfortunately, I am sure that opponents of this measure will seek to challenge the law in court--where I hope good judgment will ultimately prevail. Even in Stenberg v. Carhart the Supreme Court confirmed, and I quote, ``By no means must physicians [be granted] `unfettered discretion' in their selection of abortion methods.''

There are those who consider every type of abortion sacrosanct and will oppose any effort to apply commonsense reasoning to the debate. I don't know how to get through to these people, except by forcing them to witness this barbaric procedure. A baby is almost fully delivered with only her head remaining inside the birth canal when the doctor stabs scissors into the base of her skull to open a hole through which he then sucks out her brain and collapses her skull. I honestly don't know how anyone can avoid being truly sickened when they see a baby being killed in this gruesome manner. It is not done on a mass of tissue but to a living baby capable of feeling pain and, at the time this procedure is typically performed, capable of living outside of the womb.

All this bill would do is ban this one procedure. We are not talking about the entire framework of abortion rights here, but just one procedure. The fact is that there is no medical need to allow this type of procedure. It is never medically necessary, it is never the safest procedure available, and it is morally reprehensible and unconscionable.

In recent years, we have heard about teenaged girls giving birth and then dumping their newborns into trash cans. One young woman was criminally charged after giving birth to a child in a bathroom stall during her prom, and then strangling and suffocating her child before leaving the body in the trash. Tragically, there have been several similar incidents around the country in the past few years.

This is what happens, when we continue to devalue human life.

William Raspberry argued in a column in the Washington Post several years ago that ``only a short distance [exists] between what [these teenagers] have been sentenced for doing and what doctors get paid to do.'' How right he is.

When you think about it, it's incredible that there is a mere 3 inches separating a partial-birth abortion from murder.

Partial-birth abortion simply has no place in our society and rightly should be banned. President Bush has described partial-birth abortion as ``an abhorrent procedure that offends human dignity.'' I wholeheartedly agree.

Madam President, I ask for the yeas and nays.

Madam President, I am pleased the Senate has confirmed Thomas Varlan for the United States District Court for the Eastern District of Tennessee. Mr. Varlan's distinguished record of service in both the private and public sectors makes him a great addition to the Federal bench.

Mr. Varlan graduated Order of the Coif from Vanderbilt University School of Law, where he served as managing editor for the Vanderbilt Law Review. In his 11 years in private practice, Mr. Varlan has focused on governmental relations, civil litigation, labor and employment law, and representation of quasi-governmental corporations and schools.

Mr. Varlan's impressive accomplishments include serving as law director for the city of Knoxville for a decade. In that capacity, he headed a department of 25 employees who represented the city in a variety of cases and provided legal advice to city officials.

Mr. Varlan's wealth of experience has made him an excellent nominee who is well prepared to handle the rigors of the Federal bench. Clearly, Mr. Varlan is the right choice to be a judge in the Eastern District of Tennessee. I am pleased my colleagues joined me in voting to confirm him.

Mr. President, this is the fifth week of debate on Mr. Estrada's nomination. My Democratic colleagues have had unlimited opportunities to make their case. Some of them oppose him; others support him. But one thing has remained clear through this debate: There is no good reason to continue this route of obstruction by denying Mr. Estrada an up or down vote.

If my count is accurate, we have sought more than 17 times to come to an agreement with the Democratic leadership for a time to vote on Mr. Estrada's nomination. Each time, they rejected our efforts.

Yet, the Democratic leadership has complained that the Senate should move on to consider other important matters. All the while, they have continued to fight voting on Mr. Estrada's nomination--the very thing that would allow the Senate to focus its energies on other matters.

This filibuster of Mr. Estrada's nomination is just another step in a calculated effort to stall action on President Bush's judicial nominees. A few weeks ago, I spoke at length on the Senate floor about the Senate Democrats' weapons of mass obstruction. I mentioned that when the Democrats controlled the Senate, we saw them bottle up nominees in committee despite more than 100 vacancies in the federal judiciary. They have continued to try to inject ideology into the confirmation process by demanding that nominees like Miguel Estrada answer questions that other nominees rightly declined to answer, but were nevertheless confirmed. They have sought production of all unpublished opinions of nominees who are sitting Federal judges--a demand that has resulted in the production of hundreds of opinions and required the expenditure of a significant amount of resources, money, effort, the time. Most recently, they have demanded that a nominee, Mr. Estrada, produce confidential internal memoranda that are not within his control. Although this tactic made its debut with Mr. Estrada, I expect that we will see it repeated with other nominees.

Each of these weapons of obstruction were at their most potent when Democrats controlled the Judiciary Committee. Now things have changed, and Democrats can no longer keep nominees like Miguel Estrada bottled up in committee while they made demands for answers to questions that are unanswerable, and for confidential documents that are not subject to production. Democrats no longer control the committee, and as a result Miguel Estrada nomination has made it to the Senate floor. This means that the obstructionists among the Senate Democrats have turned to their ultimate weapon--the filibuster.

Filibusters of judicial nominees allow a vocal minority to prevent the majority of Senators from voting on the confirmation of a Federal judge--a prospective member of our third, coequal branch of Government. It is tyranny of the minority, and it is unfair to the nominee, to the judiciary, and to the majority of the Members of this body who stand prepared to fulfill their constitutional responsibility by voting on Mr. Estrada's nomination.

I have taken to the floor time and time again, for Democratic and Republican nominees alike, to urge my fellow Senators to end debate by voting to invoke cloture, which requires the vote of 60 Senators. Most, if not all, of these occasions did not represent true filibusters, but were situations in which nominees were nevertheless forced to overcome the procedural obstacle of a cloture vote. And no lower court nominee has ever been defeated through use of a filibuster--all previous lower court nominees who endured a cloture vote were ultimately confirmed.

I am not alone in my disdain for forcing judicial nominees through a cloture vote. I think that it is appropriate at this point to note that many of my Democratic colleagues argued strenuously on the floor of the Senate for an up-or-down vote for President Clinton's judicial nominees.

The distinguished minority leader himself once said:

As Chief Justice Rehnquist has recognized: ``The Senate is

surely under no obligation to confirm any particular nominee,

but after the necessary time for inquiry it should vote him

up or vote him down.'' An up or down vote, that is all we ask

. . . .

The ranking member of the Judiciary Committee echoed these sentiments when he said:

. . . I, too, do not want to see the Senate go down a path

where a minority of the Senate is determining a judge's fate

on votes of 41.

Another one of my Democratic colleagues, Senator Kennedy, himself a former chairman of the Judiciary Committee, had this to say:

Nominees deserve a vote. If our Republican colleagues do

not like them, vote against them. But do not just sit on

them--that is obstruction of justice.

The distinguished Senator from California, Mrs. Feinstein, who also serves on the Judiciary Committee, likewise said in 1999:

A nominee is entitled to a vote. Vote them up; vote them

down.

She continued:

It is our job to confirm these judges. If we do not like

them, we can vote against them. That is the honest thing to

do. If there are things in their background, in their

abilities that do not pass muster, vote no.

My other colleague from California, Senator Boxer, said in 1997:

It is not the role of the Senate to obstruct the process

and prevent numbers of highly qualified nominees from even

being given the opportunity for a vote on the Senate floor.

My colleague from Delaware, Senator Biden, also said in 1997:

I . . . respectfully suggest that everyone who is nominated

is entitled to have a shot, to have a hearing and to have a

shot to be heard on the floor and have a vote on the floor.

I could go on, but I think I have made my point. I had hoped that I could count on each of my Democratic colleagues who made statements supporting an up-or-down vote for President Clinton's judicial nominees to join me in voting for cloture on Miguel Estrada. I had hoped that their remarks in the past were not merely about partisanship, but about the fairness that should be extended to all judicial nominees, regardless of which President nominated them.

Last week, I was wrong. But today, there is a second chance--another chance to set aside partisanship for fairness.

For this cloture vote to succeed, a supermajority of 60 Senators must vote to end the filibuster of Mr. Estrada's nomination. I regret that it has come to this, because forcing a supermajority vote on any judicial nominee is a maneuver that needlessly injects even more politics into the already over-politicized confirmation process. I believe that there are certain areas that should be designated as off- limits from political activity. The Senate's role in confirming lifetime-appointed article III judges--and the underlying principle that the Senate perform that role through the majority vote of its members--are such issues. Nothing less depends on the recognition of these principles than the continued, untarnished respect in which we hold our third branch of Government--the one branch of Government intended to be above political influence.

So I now say once again to my Democratic friends: Vote for Miguel Estrada or vote against him. Do as their conscience dictates you must. But do not prolong the obstruction of the Senate by denying a vote on his nomination. Do not cast their vote against cloture today. Do not continue to treat the third branch of our Federal Government--the one branch intended to be insulated from political pressures--with such disregard that we filibuster its nominees. Do not perpetuate this campaign of unfairness. Vote for him or vote against him, but just vote.

This first filibuster in the history of the Senate on a substantive judgeship for a circuit court of appeals nominee is unprecedented, something that should never happen, that we prevented from happening when I was chairman of the committee during the Clinton administration. My friends on the other side are using a fiction that they know the administration cannot fulfill, and that is demanding a fishing expedition into all of the papers in the Solicitor General's Office pertaining to Mr. Estrada's recommendations on appeals, certiorari, and amicus curiae. They know the administration cannot do that. They knew that when they wrote the letter making that unreasonable demand. This is what we call fiction, a red herring, so they can justify the filibuster they are undergoing and act very pious, that they are really trying to learn more about this man, in spite of the fact that they conducted the hearings.

The hearings went all day. The transcript is almost 300 pages. They have all of his Supreme Court briefs. They have all of his Supreme Court arguments. They know more about Mr. Estrada than they know about any circuit court of appeals judgeship nominee we have had over the last 27 years that I have been in the Senate, as far as I know. There might be one or two they might know as much about as they do Mr. Estrada, but this is a fiction. It is a red herring. We have a letter from seven former Solicitors General, all living former Solicitors General, from Archibald Cox to Seth Waxman, four of the seven Democrat Solicitors General, three of who worked with Miguel Estrada in the Solicitor General's Office, because he worked, I might add, 4 years for the Clinton administration and 1 year for the Bush administration. Those former Solicitors General say these types of documents should never be given, because it would chill the ability of the Solicitor General to get honest and decent opinions on very important matters for the people's business, and the people's business does not make any delineation between Democrats and Republicans. The Solicitor General represents all of the people.

I will now say a few words about Priscilla Owen before I go back to the hearing.

I rise for the purpose of reading a Dear Colleague letter that I have written and distributed today concerning the nomination of Justice Priscilla Owen of Texas to be a judge on the US Court of Appeals for the Fifth Circuit. I have distributed this to every Senator in the Senate.

Dear Colleague: On September 4 of last year I took the

unusual step of writing to the entire Senate to express my

outrage at the untruthful and misleading attacks made against

Justice Priscilla Owen of Texas, who was nominated by

President Bush to serve on the Fifth Circuit Court of

Appeals. As you know, Justice Owen enjoyed the support of

both of her home-state Senators last Congress, and again

enjoys such support. I am writing today so that you have all

information related to this important information.

In September, I expressed my concern that a continued

pattern of misinformation about a nominee, like the one

generated about Justice Owen, could undermine the integrity

both of the judiciary and of the branch of government in

which we are privileged to serve. A day later, the Judiciary

Committee refused to allow Justice Owen a vote by the whole

Senate on a party-line vote of 10 to 9.

Notably, one week later The Washington Post joined scores

of other newspapers across the country in expressing support

for Justice Owen and severely criticized the Committee's

conduct. I have enclosed its editorial. The Post described

the Committee's vote as ``a message to the public that the

confirmation process is not a principled exercise but an

expression of political power.'' The Post also noted that

although they disagreed with some of her opinions, ``none

seems beyond the range of reasonable argument.''

Despite the independent support of dozens of newspapers,

prominent Democrats, and fourteen past Texas bar presidents,

critics have portrayed Justice Owen as being ``far from the

mainstream.'' Yet Texas voters have twice elected her

overwhelmingly to statewide office. The American Bar

Association has unanimously rated her well qualified, its

highest rating. In fact, Justice Owen was the first judicial

nominee with the ABA's highest rating to be voted down by the

Judiciary Committee.

In my opinion, Justice Owen is perhaps the best sitting

judge I have ever seen nominated. She is brilliant as well as

compassionate. Justice Owen's record of applying the law as

written is among the very best of any judicial nominee ever

presented to the Senate. This is particularly true in her now

famous decisions concerning the Texas law requiring parental

notification when minor children obtain abortions. In

these cases, no one's right to choose was implicated. The

only right at stake was the right articulated by the Texas

legislature of parents to have knowledge of, and an

opportunity for involvement in, one of the most important

decisions of their children's lives. In those cases,

Justice Owen did exactly what any restrained judge should

do: She applied Texas statutory law as directed by Supreme

Court's precedent, including Roe v. Wade. Ironically, it

is Justice Owen's opponents--the same ones who accuse her

of being an ``activist''--who would have her ignore the

legislature and the Supreme Court in order to reach a

political result.

Justice Owen is also accused of deciding cases against

consumers, workers, and the injured and sick. This charge is

not only factually without basis, but also belies the

accusation of ``activism.'' Only those obsessed with

outcomes, rather than the law governing the facts of a

particular case, would be compelled by a mere counting up of

wins and losses among categories of parties before a judge.

Working as a judge is like being an umpire; Justice Owen

cannot be characterized as pro-this or pro-that any more than

an umpire can be analyzed as pro-strike or pro-ball. I hope

you will agree that a judge's job is to apply the law to the

case at hand, not to mechanistically ensure that court

victories go 50/50 for plaintiffs and defendants, consumers

and corporations.

Justice Owen was also notably assailed by her critics using

incorrectly the words of one of her biggest supporters,

Alberto Gonzales, President Bush's White House Counsel. Judge

Gonzales served with Justice Owen on the Texas Supreme Court

and has written publicly that she is ``extraordinarily well

qualified to serve as a judge on the federal appeals court.''

Rather than focus on his ringing endorsement, however,

detractors instead sensationalized a disagreement that Judge

Gonzales had not with Justice Owen, but with other dissenting

judges in a case involving the Texas parental notification

law.

Justice Owen is an excellent judge. Her opinions, whether

majority, concurrences, or dissents, could be used as a law

school text book illustrating exactly how an appellate judge

should think, write, and do the people justice by effecting

their will through the laws adopted by their elected

legislatures. She clearly approaches these tasks with both

scholarship and mainstream American common sense.

As a new Congress takes a fresh look at this nomination, I

hope you will join me in informing the American people of the

truth about Justice Owen and in warning them of the grave

danger posed by an uninformed politicization of the federal

judiciary. I hope you will urge our colleagues to do the

right thing when Justice Owen is again voted on by the

Committee and goes to the Senate floor for confirmation.--

Signed, Orrin G. Hatch.

We are holding a hearing today on Justice Owen's nomination. I invite all of my colleagues to attend. In fact, I encourage them to do so. I want everyone to get to know Justice Owen and have the opportunity to hear from her firsthand. This is a very unusual invitation, I know. But these are unusual times in the Senate for judicial nominations, and Justice Owen is a particularly important and impressive nominee. I urge my colleagues to come to the hearing taking place in Dirksen 106 and see for themselves what an extraordinary person and jurist she is.

We are having difficulty with the President's judicial nominees. Every one of these circuit nominees is being contested, some more than others, but all of them are quite rabidly being contested. Miguel Estrada is a perfect illustration of someone who is totally competent, totally equipped to do the job, honest, decent, has earned his stripes, has the highest rating from the American Bar Association, the gold standard, according to our colleagues on the other side. Yet he is being filibustered here now in the fifth or sixth week.

We have a cloture vote today. I hope my colleagues will consider this. I hope we can get some of the more clear thinking colleagues on the other side to start voting for Mr. Estrada, to start voting for cloture, so we can end this outrageous debate and put a qualified person on the court. Let's not hide behind a fishing expedition to get documents they know no self-respecting administration is going to give to them, and using that as a basic shield to say they are not doing something unjust to Miguel Estrada. They are being very unjust, very unfair. It is not right. We ought to stop it.

Will the Senator yield?

I thank my dear colleague for those kind remarks. As he knows, there have been some on our side that did not want hardly any of the Clinton judges, especially the more liberal ones, some of whom have gone to circuit court of appeals.

We did that.

I thank my colleague because as the leader he helped me to do the job for the Clinton administration. The President deserved the best we could do. Do we get everything done? No one has ever gotten everything done at the end of anyone's administration.

He is right. Our record was much superior to when the Democrats controlled the committee.

I thank my colleague.

Will the Senator yield?

I ask the Senator on our side, when he concludes, Senator Kennedy has 2 minutes. We yielded our time.

Mr. President, I yield such time as he needs to the distinguished junior Senator from Nevada.

Mr. President, I thank my two colleagues from Nevada. You very seldom see two colleagues from different parties working so well together. They are both excellent people.

We all respect Senator Reid. He is one of the moderate voices around here who tries to get things to work. And I personally appreciate it. And the distinguished junior Senator from Nevada, Mr. Ensign--I have not seen a better Senator in years. He is certainly making a difference on our side. And I believe, working with his colleague on the other side, he is getting a lot of things done for Nevada and for the Intermountain West, and it is terrific. So I pay tribute to both of them.

I am pleased we are considering the nomination of Jay S. Bybee who has been nominated by President Bush to serve on the United States Court of Appeals for the Ninth Circuit. Professor Bybee has a sterling resume and a record of distinguished public service. I know him personally. I am a personal friend. I know his quality. I know what a good thinker he is. I know what a great teacher he has been. I know what a great job he has done down at Justice. He is a person everybody ought to support because he is a truly wonderful, upright, good, hard- working, intelligent individual.

Professor Bybee is currently on leave from the University of Nevada at Las Vegas William S. Boyd School of Law, where he has served as a professor since the law school's founding in 1999. Since October 2001, he has served as Assistant Attorney General for the Department of Justice Office of Legal Counsel. Notably, this is a post formerly held by two current Supreme Court Justices. As head of the Office of Legal Counsel, Professor Bybee assists the Attorney General in his function as legal advisor to the President and all executive branch agencies. The office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.

Professor Bybee, a California native, attended Brigham Young University, where he earned a bachelor's degree in economics, magna cum laude, and a law degree, cum laude. While in law school, he was a member of the BYU Law Review.

Following graduation, Professor Bybee served as a law clerk to Judge Donald Russell of the Fourth Circuit Court of Appeals before joining the firm of Sidley & Austin--one of the great law firms. In 1984, he accepted a position with the Department of Justice, first joining the Office of Legal Policy, and then working with the Appellate Staff of the Civil Division. In that capacity, Professor Bybee prepared briefs and presented oral arguments in the U.S. Courts of Appeals. From 1989 to 1991, Professor Bybee served as Associate Counsel to President George H.W. Bush.

Profeesor Bybee is a leading scholar in the areas of constitutional and administrative law. Before he joined the law faculty at UNLV, he established his scholarly credentials at the Paul M. Hebert Law Center at Louisiana State University, where he taught from 1991 to 1998. His colleagues have described Professor Bybee as a first-rate teacher, a careful and balanced scholar, and a hardworking and open-minded individual with the type of broad legal experience the Federal bench needs.

Professor Bybee comes highly recommended. One of his supporters is Mr. William Marshall, a professor of law at the University of North Carolina. Mr. Marshall served in a number of high-level posts in the Clinton administration including a stint as Deputy White House Counsel and, notably, as a counsel in the Office of Legal Policy at the

Department of Justice, where he participated in the judicial selection process by screening prospective Clinton administrative nominees. In his letter to the committee supporting Professor Bybee, Mr. Marshall said:

The combination of his analytic skills along with his

personal commitment to fairness and dispassion lead me to

conclude that he will serve in the best traditions of the

Federal judiciary. He understands the rule of law and he will

follow it completely.

Stuart Green, a law professor at Louisiana State University who describes himself as a ``liberal Democrat and active member of the ACLU,'' said:

I have always found [Jay Bybee] to be an extremely fair-

minded and thoughtful person. Indeed, Jay truly has what can

best be described as a `judicious' temperament, and I would

fully expect him to be a force for reasonableness and

conciliation on a court that has been known for its

fractiousness.

This self-described liberal Democrat states that Professor Bybee will bring some balance to the Ninth Circuit. I remind my colleagues that in this court 14 of the 24 active judges, including 14 of the last 15 confirmed, were appointed by President Clinton.

This court was recently in the news with yet another controversial decision. We are all familiar with the Ninth Circuit's recent ruling which held the Pledge of Allegiance to the Flag as unconstitutional under the Establishment Clause because the Pledge contains the phrase ``under God.''

The Ninth Circuit's high reversal rate by the Supreme Court is well documented, but less well known is the Ninth Circuit's propensity for reversing death sentences, with some judges voting to do so almost as a matter of course. No doubt the Ninth Circuit has some of the nation's most intelligent judges, but some cannot seem to follow the law. Just this term, the U.S. Supreme Court summarily reversed the Ninth Circuit three times in one day and vacated an opinion 9-0.

With two judicial emergencies in the Ninth Circuit, Professor Bybee is the type of judge we need. He is committed to applying and upholding the law. He will be a terrific judge. That circuit represents over 9 million people, the largest in the country. It has the most judges on a circuit court of appeals in the Nation. They need him.

Additional letters in support of Professor Bybee illustrate his professional competence and personal characteristics which will serve him well on the bench. Colleagues at UNLV deserve Professor Bybee as ``widely and properly regarded as a leading constitutional law expert, and his expertise extends to many other areas of law as well. . . . Bybee is highly intelligent, industrious, diligent, and responsible. He has outstanding judgment and is a rock of stability. . . . Perhaps above all, he respects and works effectively with persons of diverse perspectives, temperaments, and ideology.''

Another colleague of Professor Bybee wrote, ``I should note that my personal politics are quite different from Bybee's, but Jay's tremendous intelligence, work ethic and, above all, his integrity and desire to complete each and every task not only to the best of his ability, but also to do the right thing with it, convinces me that I would rather have him be a federal judge than many or most who share more closely my own politics.''

The committee has received similar letters in support of Professor Bybee from law professors and administrators throughout the nation, including the Dean of The George Washington University Law School.

I ask unanimous consent that these supporting Professor Bybee's nomination be printed in the Record at the conclusion of my remarks.

The legal bar's wide regard for Professor Bybee is reflected in his evaluation by the American Bar Association. Based on his professional qualifications, integrity, professional competence, and judicial temperament, the ABA has bestowed upon Professor Bybee a rating of Well Qualified.

This Senate has previously found Professor Bybee worthy of confirmation for a position of high responsibility in the government, and I am confident it will do so again today.

Professor Bybee is providing the Nation with exceptional service in his current position as Assistant Attorney General in charge of the Office of Legal Counsel. This office assists the Attorney General in his function as legal advisor to the President and all the executive branch agencies.

The office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the executive branch, and offices within the department. Such requests typically deal with legal issues of particular complexity and importance or issues about which two or more agencies are in disagreement.

The office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality. All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President's formal approval.

In addition to serving as, in effect, outside counsel for the other agencies of the executive branch, the Office of Legal Counsel also functions as general counsel for the Department itself. It reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General's approval. It also performs a variety of special assignments referred by the Attorney General or the Deputy Attorney General. In this position, Professor Bybee has performed in an outstanding manner. He has rendered great service to our Nation, he has earned bipartisan respect and support, and is fully prepared to be a Federal circuit court of appeals judge.

(Ms. MURKOWSKI assumed the chair.)

Madam President, I am confident that as the Senate confirms Professor Bybee, Democrats and Republicans can all share in the pride of a job well done. This Senate will have properly exercised its proper constitutional role of advice and consent. I urge my colleagues to support this nomination.

I yield the floor.

Exhibit 1

University of North Carolina

School of Law,

Chapel Hill, NC, January 27, 2003.

Re: Jay Bybee.

Hon. Orrin G. Hatch,

Chairman, Committee on the Judiciary, U.S. Senate, Russell

Senate Office Building, Washington DC.

Dear Chairman Hatch: I am writing this on behalf of the

nomination of Jay Bybee to the Ninth Circuit Court of

Appeals.

First let me introduce myself. I am currently the Kenan

Professor of Law at the University of North Carolina School

of Law and have taught law for almost 20 years. I also worked

in the Clinton Administration as the Deputy Counsel to the

President under Beth Nolan and previously as an Associate

Counsel to the President under Charles Ruff. In addition, I

served under Assistant Attorney General Eldie Acheson in the

Justice Department during the spring and summer of 1993

during which my task was to begin the processes of judicial

selection for Clinton Administration appointments. I am

therefore well familiar with the judicial selection process.

I have come to know Jay Bybee in my work as a law professor

both through his writings and through the interactions we

have had at numerous legal conferences and academic events.

He is an extremely impressive person. To begin with, he is a

remarkable scholar. His ideas are creative, insightful, and

stimulating and his analysis is careful and precise. I

believe him to be one of the most learned and respected

constitutional law experts in the country.

He is also an individual with exceptional personal

qualities. I have always been struck by the balance that he

brings to his legal analysis and the sense of respect and

deference that he applies to everybody he encounters--

including those who may disagree with him. He is someone who

truly hears and considers opposing positions. Most

importantly he is a person who adheres to the highest of

ethical standards. I respect his integrity and trust his

judgement.

Needless to say, I believe that Jay Bybee's professional

and personal skills make him an outstanding candidate for a

federal judgeship. The combination of his analytic skills

along with his personal commitment to fairness and dispassion

lead me to conclude that he will serve in the best traditions

of the federal judiciary. He understands the rule of law and

he will follow it completely. He is an exceptional candidate

for the Ninth Circuit and I support his nomination without

reservation.

I hope these comments are helpful to you. Please feel free

to contact me if you have any further questions.

Sincerely,

William P. Marshall,

Kenan Professor of Law.

Mr. President, I support the nomination of Judge William Steele to the United States District Court for the Southern District of Alabama.

Judge's Steele's professional record indicates that he is eminently qualified for the federal trial bench. Upon graduation from the University of Alabama School of Law, Judge Steele clerked for the Tuscaloosa County district court. As an Assistant District Attorney in Mobile, he handled hundreds of criminal matters, including more than 75 jury trials. Upon being promoted to Chief Assistant District Attorney, he was significantly involved in the creation of the Child Advocacy Center for physically and sexually abused children. He then served as an Assistant United States Attorney prosecuting mail fraud, public corruption, drug violations, firearms violations, and tax code violations.

In addition to his broad federal and state criminal experience, Judge Steele has considerable civil experience. In the private sector, while continuing to maintain a viable state and federal criminal trial and appellate practice, he also handled domestic relations matters, civil litigation in State and Federal court, representation of claimants in social security matters, and representation of the Alabama Department of Human Resources in child custody matters.

Since 1990, Judge Steele has served as a Federal magistrate judge. In this capacity, he has handled a wide range of civil matters, preliminary criminal matters, prisoner cases, and social security appeals.

I know that Judge Steele will be a credit to the Federal bench and will honorably serve the citizens of south Alabama. I thank my colleagues for voting for his confirmation.

Mr. President, I am pleased today to support Judge John Breen, who has been nominated to the U.S. District Court for the Western District of Tennessee.

Judge Breen has served on both sides of the bench with distinction. Upon graduating from the University of Tennessee Law School in 1975, he entered private practice by joining the Jackson firm of Waldrop & Hall. He is one of the few lawyers these days who spent his entire litigating career with a single firm. His area of expertise was general civil litigation. In addition to representing insurance companies and self- insured businesses, he also represented individual clients in real estate, commercial, corporate and estate planning matters.

Judge Breen has made a broad range of contributions to the bar. He served as the President of the Tennessee Bar Association, which reflects the high esteem in which his colleagues hold him. He also served on the Board of Directors for the Tennessee Bar Foundation. In the course of his career, he has accepted many appointments to represent indigent criminal defendants in State and Federal court. Judge Breen also provided many hours of pro bono service for West Tennessee Legal Services.

Since 1991, Judge Breen has served as a Federal magistrate judge, where he has handled a broad array of evidentiary hearings and issued many reports and recommendations. In addition, Judge Breen is also recognized as an effective mediator, as well as an instructor and author on alternative dispute resolution.

The American Bar Association rated Judge Breen unanimously well qualified, its highest rating. I am confident that he will serve on the bench with integrity, intelligence and fairness.

Mr. President, I express my deep-felt feelings about the answer to all of our prayers in Utah. There has never been a State where virtually everybody got on their knees and prayed for the return of this young woman, Elizabeth Smart.

I have to tell you, we believe in miracles out there. We have seen them time after time after time. But I have to admit, most people had pretty much given up. They were thinking, well, that poor soul undoubtedly had to have been murdered. But her father and her mother never gave up.

They were in my office just a short while ago saying: We are going to find her. We believe she is alive--praying every day, fasting for their daughter. People in Utah fast and pray in these situations.

I have to tell you, I was so thrilled last night to see they finally found her.

I could hardly get to sleep.

I want to pay tribute to that wonderful family and her neighbors. Jake Garn and Kathleen Garn are two of the neighbors. I have to tell you, they both have been of tremendous help and bolsterers, as have all of the neighbors, to the Smart family. Jake has moved heaven and earth for them. He has talked to me, worked with me, worked with others. His wife Kathleen is as good as it gets. She is a wonderful

human being. I know she was over there all the time, giving solace, support, comfort. It is typical of these two, who served in the Senate with us for so many years and did such a great job, to continue to do a great job in our home State. That family really deserves a lot of credit. Not only the immediate family but the extended family exercised their faith and prayers on behalf of this young woman.

I hope everything is OK with her. It is certainly OK compared to what she has gone through. I hope everybody who knows her and knows that family will lend support and solace and comfort to help them to reunite in every way and help this young woman to overcome the terrible experience she has had over the last 9 months.

Mr. President, I have listened to the distinguished majority leader, and I have been very interested in what he has had to say. The fact is, in spite of what he has said, there has never been a filibuster that has been successful against a circuit court of appeals nominee--never--in the history of the Senate.

During the time President Clinton was President of the United States, I was chairman of the committee for 6 years. I admit there were some on our side who wanted to filibuster some of his nominees. I worked very hard and diligently to make sure no filibuster could succeed. As a matter of fact, I don't think there was a serious, true filibuster at any time against any of the Clinton nominees.

I suppose people can have their own viewpoint, but the fact is that we helped to make sure no filibuster would succeed. We on this side made sure--the leadership on this side, including myself as leader of the Judiciary Committee--that no filibuster would succeed.

In fact, there is only one filibuster in the history of the country that has succeeded, and that was against Justice Fortas, back in 1968. I do not agree with that. I think it was the wrong thing then. It is the wrong thing now. It is really the big issue we are talking about today.

With regard to the request for additional information from Mr. Estrada and the unfortunate claim that he has not cooperated with the other side, look at the transcript--almost 300 pages long. It is one of the longest hearings on a circuit court of appeals nominee in history. Just look at the transcript. He answered question after question after question.

Then every Democrat on the committee was given an opportunity to submit written questions. Only two did. The others didn't avail themselves of that opportunity. They called that hearing a very fair hearing. It was conducted by them. It could have gone on longer. They could have gone on another day if they had wanted to, or more than 1 day, more than 2 days. They didn't do it. The reason they

didn't is that they thought they would never call him up anyway. Unfortunately for them, they lost the election and today the Republicans are in control and he has been called to the floor. Once called to the floor, he deserves an up-or-down vote under our laws.

They are saying that, in spite of an almost 9-hour committee hearing, in spite of having all of his briefs and his oral arguments before the Supreme Court in 15 cases, in spite of the fact that he has the unanimously well qualified highest recommendation of their gold standard, the American Bar Association, in spite of the fact that they have numerous other documents and records and have documented his cases, they are saying they do not know enough about Mr. Estrada so they have to go into the highly privileged matters concerning recommendations for appeals, certiorari, and amicus curiae matters, some of the most privileged documents in the history of the country, in the Solicitor General's Office, in spite of the fact that seven living former Solicitors General have said that should never be allowed.

In each of the cases that the distinguished majority leader has cited where some documents have been given, these documents were given pursuant to specific requests for documents.

In this case, we have the generalized request of a fishing expedition into virtually every document he ever worked on at the Solicitor General's Office. No one has ever allowed a fishing expedition into these privileged documents of the Justice Department, let alone the Solicitor General's Office.

I join my colleagues here to voice grave concern over what appears to me to be a system in serious danger of breaking. I am talking about the system by which the Senate exercises its constitutional obligation to provide advice and consent on judicial nominees.

At the outset of my remarks, let me take a moment to set straight the proper role of the Senate in the confirmation of judicial nominees, starting with the text of the Constitution. In its enumeration of presidential powers, the Constitution specifies that the confirmation of judges begins and ends with the President. The Senate has the intermediary role of providing advice and consent. Here is the precise language of Article II, Section 2:

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

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

of the supreme Court, and all other Officers of the United

States, whose Appointments are not herein otherwise provided

for, and which shall be established by Law.

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

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

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

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

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

oblige him to make another; but they cannot themselves

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

made.

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

Hamilton's discussion of the Appointments Clause in The Federalist No. 76 supports this reading. Hamilton believed that the President, acting alone, would be the better choice for making nominations, as he would be less vulnerable to personal considerations and political negotiations than the Senate and more inclined, as the sole decision maker, to select nominees who would reflect well on the presidency. The Senate's role, by comparison, would be to act as a powerful check on ``unfit'' nominees by the President. As he put it,

[Senate confirmation] would be an excellent check upon a

spirit of favoritism in the President, and would tend greatly

to prevent the appointment of unfit characters from State

prejudice, from family connection, from personal attachment,

or from a view to popularity.

This is a far cry from efforts we've seen over the past couple of years to inject ideology into the nominations process, and to force nominees to disclose their personal opinions on hot-button and divisive policy issues like abortion, gun control, and affirmative action which undoubtedly will come before the courts.

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

Contrast the Estrada nomination. He waited nearly a year and a half for his confirmation hearing, which lasted for hours. His nomination is now in its fifth week of debate on the Senate floor, nearly 2 years after the President nominated him. Clearly, this is a far cry from the role for the Senate that the Framers contemplated. What was enumerated in the Constitution as advice and consent has in practice evolved to negotiation and cooperation in the best cases, and delay and obstruction in the worst cases--like that of Mr. Estrada.

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

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

The filibuster of Mr. Estrada's nomination also represents a new low in the annuals of judicial confirmations. If Mr. Estrada is not confirmed, he will be the first lower court judicial nominee defeated through a filibuster. More broadly, he will be the first judicial nominee, period, defeated through a party-line filibuster, since the filibuster of the Fortas nomination for Chief Justice was supported by Democrats and Republicans alike. This bipartisan opposition was apparently well grounded, since Justice Fortas ultimately resigned from the Supreme Court amid allegations of ethical misconduct.

Of course, no such allegations of misconduct surround Mr. Estrada-- only pure partisan politics can be blamed for the obstruction of a vote on his nomination. Let me take a moment to illustrate.

What does it take? There are so many Republican efforts to confirm Miguel Estrada that the nomination is in the fifth week of debate on the Senate floor. There is no end in sight. Seventeen attempts for unanimous consent to end the debate and have the vote were all rejected by our colleagues on the other side. The White House offer for Mr. Estrada to answer written questions was rejected by all but one Democratic Senator--all but one when they offered him to answer written questions. The White House offer for Estrada to meet with Senators was rejected by all but one Democratic Senator.

It doesn't sound to me as if they really want to know what is on his mind. In my opinion, they could easily do so by merely meeting with him and asking him any questions they want.

Of course, cloture filed to end the debate was rejected.

The system is broken. This case illustrates it more than any other case that has ever come before the Senate.

There can be little doubt that the breakdown in the Senate's advice and consent role is not limited to Mr. Estrada's nomination. All nominees for the circuit courts of appeals have suffered, as these charts illustrate.

Let me just go through this. I am talking about a system in danger of breaking. I think it is broken. This

shows the average days pending for circuit court nominees for the first 2 years of a President's tenure. In the case of Ronald Reagan, it took an average of 51 days for circuit court nominees to be pending before they got to a vote on the floor. In the case of President George Herbert Walker Bush, it took an average of 83 days in order to get a judge pending. In the case of President Clinton, it did go up. It took an average of 107 days. With George W. Bush, the current President, it has taken 355 days.

That is a system in need of repair. What we are seeing is a slowdown in the confirmation of Federal judges.

Look at this: Again, a system in danger of breaking.

The confirmation rate of circuit court nominees for the first 2 years: Reagan, 95 percent; Bush, 96 percent; and, Clinton, 86 percent of his circuit court nominees were confirmed. George W. Bush has 53 percent.

I don't have that chart.

Let me put it this way: If we had not gone through--

That is right.

May I reclaim my time?

If the Senator has questions, I will be happy to take them. In the case of President Clinton, yes, in the first 2 years it was 86 percent. Yes, Joe Biden was chairman at that time. Yes, the Republicans cooperated to make sure those circuit court nominees went through. In the first 2 years of George W. Bush, the Democrats were in control of the committee. We cooperated all we could. That is the best we could get done. I think those statistics still stand up very strongly.

What we are seeing is a slowdown in the confirmation of Federal judges--a systematic and calculated effort to block the nominees of the President of this country from the Federal bench. It is time to stop it. It is time to reform the system, to de-escalate. The first step, of course, is to vote on Mr. Estrada's confirmation. But there is much more that we can do to ensure that no other judicial nominee repeats this experience. I urge my colleagues to join me in my efforts to put an end to partisan politics in the confirmation process.

I have to say, both sides have not been right in this process in the past years. I am not trying to just find fault there, but one fault I can find: Never in the history of this country has there been a filibuster succeed against a circuit court of appeals nominee. To argue that he has not provided enough documentation or enough answers when they refused to meet with him, refused to submit written questions, when they had one of the longest hearings on record for a circuit court of appeals nominee, when they have a massive amount of documents, not only all the arguments he made before the Supreme Court but his briefs as well and a tremendous, almost 300-page record of proceedings before the committee, it certainly makes my point.

To come here and say that we now have to have privileged records on a fishing expedition that doesn't name anything specifically seems to me to fly in the face of what is right and proper.

As I understand it, we will go back and forth. I yield the floor.

Mr. President, I yield 5 minutes to the Senator from Pennsylvania.

Mr. President, I yield the Senator 2 more minutes.

Mr. President, I yield up to 5 minutes to the distinguished Senator from Texas.

I yield 4 minutes to the distinguished Senator from South Carolina.

I will yield time for the question.

I yield time for the distinguished Senator from South Carolina to complete his question, and I hope the distinguished Senator from Vermont will answer his question.

I yield to the Senator from Virginia.

On your own time.

I can speak for Mr. Estrada. I know he feels very good about the first amendment. All of us do. I don't think that is the question.

The Senator has a right to ask written questions and meet with him personally to ask how he feels about something. I am sure he feels very good about him.

I yield up to 3 minutes to the Senator from Missouri.

I grant the Senator 1 more minute.

Mr. President, will the Senator yield for a question?

I will ask the question on my time. Will the Senator answer on his time?

Let me ask the question on my time. I would like the answer on the Senator's time.

As to the number of circuit court of appeals judges, No. 1, who was in charge of the Senate when Abe Fortas was defeated by a filibuster? No. 2, were any of those circuit court nominees defeated by filibuster, or were they all confirmed?

Mr. President, how much time remains on both sides?

I would like to correct the Record. When all of those circuit court judges were approved and confirmed, during the time when the filibuster occurred on Fortas--the only filibuster which was really a true filibuster--it was bipartisan and the Democrats controlled the Senate.

I yield 2 minutes to the distinguished Senator from Tennessee.

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

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

Mr. President, I yield the remainder of my time to the distinguished Senator from South Carolina.

Mr. President, I rise in response to my colleagues' assertions about the Senate's role in the judicial confirmation process. I am compelled by their statement to provide a more complete record on the origins of the Senate's constitutional obligation to provide advice and consent on judicial nominees.

The constitutional duty of the President to nominate and appoint, and the intervening duty of the Senate to provide advice and consent, is set forth in Article II, Section 2:

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

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

of the Supreme Court, and all other Officers of the United

States, whose Appointments are not herein otherwise provided

for, and which shall be established by Law.

Some of my Democratic colleagues have argued that the record of the debate of the Constitutional Convention leads to the conclusion that the Senate plays the central role in this process. This assertion is based on the Convention's initial--and, I should add, temporary-- adoption of proposals that a national judiciary be established to be chosen by the national legislature, and its concurrent rejection of proposals that the President be given the sole power to appoint judges. My colleagues suggest that only in the final days of the Convention was the President given a role--the power to nominate judges--and that somehow this time line of events signals a more central role for the Senate than the actual text of the Constitution suggests.

It is first important to note that, contrary to the impression that my colleague from Massachusetts may have left, the record of the Convention indicates that the discussion of the establishment of the judiciary was limited to only a few actual days. During that time there were, indisputably, competing views as to how the judiciary should be established--by the Executive or by the legislature. But a careful review of the notes of the Constitutional Convention leads to the conclusion that the Framers bestowed on the President the paramount role in appointing judges.

There was significant opposition to the proposals to place the appointment power exclusively in the Senate. For example, according to the notes from the Convention for July 18, 1787, a delegate from Massachusetts, Nathaniel Ghorum, suggested ``that the Judges be appointed by the Executive with the advice & consent of the 2d. branch, in the mode prescribed by the constitution of Masts. This mode had been long practiced in that country, & was found to answer perfectly well.'' James Wilson, one of the leading figures at the Convention, made a motion ``that the Judges be appointed by the Executive.'' Mr. Wilson later wrote, ``Instead of controlling the President still farther with regard to appointments, I am for leaving the appointment of all the principal officers under the Federal Government solely to the Presi- dent. . . .''

Thus the debate progressed over exclusive appointment by the legislature versus exclusive appointment by the President. James Madison sought a compromise when he suggested the power of appointment be given to the President with the concurrence of 1/3 of the Senate. This is an interesting suggestion, given that we now face a virtual veto by a minority. Madison's proposed compromise has been turned on its head. Rather than a supermajority to disapprove the President's nominee, this Senate is demanding a supermajority for approval.

Some of my colleagues on the other side of the aisle seem to want to continue the debate of the Constitutional Convention. That debate is over. The resolution of the respective roles of the President and the Senate are found in the language of the Constitution, which in Article II vests the nomination and appointment powers in the President.

As Alexander Hamilton explained in The Federalist No. 66:

It will be the Office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose they can only ratify or reject the choice he-- may have made.

The distinguished Assistant Democratic Leader referred to The Federalist No. 76, wherein Alexander Hamilton discussed the appointing power of the Executive. Hamilton stated ``To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.'' This passage indicates the Founders' understanding of a limited role for the legislature in the confirmation process. That role is for the Senate to act as a check on improper appointments resulting from favoritism or unfit character by the President.

The treatment of Mr. Estrada by the Senate is far different from the advice and consent role contemplated by the Framers. A vocal minority of Senators is blocking the majority, which stands ready to vote on his nomination. This is tyranny of the minority and it is unfair to all--to the Senate, to the President, to the nominee, and to the Judiciary.

Mr. President, I call upon my colleagues who are denying an up or down vote on the nomination of Mr. Estrada to let the Senate work its will. The President has done his duty in nominating Mr. Estrada. It is now our duty to consent or to withhold consent by an up or down vote. Let's end the debate on this nomination and proceed to that vote.

Thank you, Mr. President. I yield the floor.

Mr. President, I have listened to my distinguished friend and colleague from West Virginia. Everybody in this body knows the deep affection I have for him and for his feelings, and for his earnest and very important analysis of many of the issues we have had to live with over the years. I have deep respect for the distinguished Senator from Maryland, as well. We came to the Senate together. They are both great Senators, in my eyes.

Mr. President, I appreciate that. I listened carefully to much of what the distinguished Senator from West Virginia said, and he raised a number of very important issues, no question about it. I have great assurance as a member of the Select Committee on Intelligence in our President as we are considering one of those issues. It just points out how difficult it is to be President of the United States, especially during times of strife and difficulty; how difficult it is to make these decisions; how difficult it is to determine what imminence really is. Hugo Grotius, the father of international law, basically said imminency is a very hard thing to define.

I think the Senator raised a lot of interesting points, but I also believe the President and his advisers have gone over every one of those points. I wish to mention one problem, and that is, some people try to blame Israel for our positions--not the distinguished Senator from West Virginia. But some have tried to raise that point and blame Israel. The fact is Israel is important here, but so are all the Arab states. Keep in mind, this man, Saddam Hussein, has weapons of mass destruction. He came within a few weeks of having a nuclear device. We all know that. It was a matter of time. They had the ability. They had the capacity. They had the scientists. Who knows how close they are to having a nuclear device now, because there is no possible way that 100 inspectors, or even 1,000 inspectors, whose every action, every word, everything they do is monitored by more than 1,000 security people, intelligence people.

Everybody knows Iraq, being the size of California, it is virtually impossible to be absolutely sure that these inspections are even working. If, in fact, they continue to have--which we know they have-- biological and chemical weapons, we know they have certain stores of them. We know pretty much how much they have. But if, in fact, they have a nuclear device, I am going to tell my colleagues, Israel is acting very restrained and has throughout these difficulties in the Middle East. I hope they will be able to continue to act restrained. They have one of the best intelligence forces in the world, if not the best, in the Mossad. They are not going to wait if we are not going to take the responsibility of stopping this type of madman with weapons of mass destruction.

There have been 17 U.N. resolutions that have been ignored--17 of them. We have had over 9, 10, 11 years now of watching him flagrantly violate the U.N. resolutions. I respect my colleagues for their thoughtful analysis of

this situation, but I also think there is a thoughtful analysis going on in the White House, the State Department, at the CIA, and in so many other ways.

With regard to the war on al-Qaida, anybody who thinks that war is not going on and we are not doing everything we possibly can ought to look at Khalid Shaikh Mohammed. Khalid Shaikh Mohammed is the director of operations for al-Qaida. We were not just sitting there worrying about Iraq. We were out there actively trying to find Khalid Shaikh Mohammed. I might add, we found him. We have him in custody now. We are learning a lot from what we found around Khalid Shaikh Mohammed.

That battle is ongoing. There is no letup in what we are doing against terrorism from that perspective. I can personally testify to that.

We may be very close to ascertaining the whereabouts of Osama bin Laden. So let no one misconstrue, the fact is, this administration is doing a very good job with regard to al-Qaida, with regard to terrorism. I happen to believe the administration listens carefully to my distinguished friend from West Virginia, and analyzing and realizing they have thought very carefully about the issues he raises, which are important issues, issues about which we all have to stop and think.

Keep in mind, imminence does not mean we have to wait until a nuclear device is blowing up New York or Washington, DC, or Los Angeles or Miami or Chicago. Imminence means the threat--it can happen tomorrow-- and that threat is all around us. We know because we have been rounding up the people in America who are terrorist threats to us, who would not hesitate for a minute to take the lives of every American citizen they could possibly take.

I believe right now what we need is to rally together as much as we can. We do need wise men to raise these issues, as my distinguished friend from West Virginia has done, and he has done it continuously throughout his career. Many times he has been right. But I also believe there comes a time when we have to act, too, in the direct care and nurturing of our own country.

I believe the administration is listening to everything that has been said by my dear colleagues on the other side, and I think they are doing everything they can to protect this Nation and to protect the world from a third world war.

One of the worst happenings would be to leave Israel to have to defend itself over there and to leave the moderate Arab nations to have to defend themselves over there. There are a significant number of moderate Arab nations. If they have to go in, then we are really in very dire straits.

I mention these points hopefully in a way of helping all of us understand these are important issues. It is important we discuss them. It is also important we support the administration, which has the ultimate responsibility, and we do, too, here, no question about it.

We have passed a resolution that says we have to do what is in the best interest of our country. I believe this President and his advisers are doing that. They have, across the board, people who have philosophical differences in the administration. I think it is a good balance between those in the Defense Department and those in the State Department. I say with particularity, no one can say Colin Powell goes to war willingly, that he goes to war without having thought through every possible problem. No one believes he would risk our young men and women or our country in any way without thoughtful reflection and consideration.

I believe that is true of Donald Rumsfeld, who would be perhaps on the other side of the equation because he has the obligation of making sure our military is the best in the world, and that when we have to deploy our military, we do so in a manner that will let anybody know the United States is no pushover, and that you better think twice before you start taking on our people.

I respect my colleagues and I respect their viewpoints. I happen to differ with them on some of them, but the fact is my main difference is I believe these viewpoints have been considered and reflected upon by people of good will who, I believe, are trying to do the very best they can. In that regard, I compliment the distinguished Prime Minister of England who, against some very bad odds and some very difficult times, has stood as a very strong leader in this world. I think he will go down in history as a very strong leader, recognizing the threat of terrorism throughout the world, at least in part emanating from Iraq and the leadership of Saddam Hussein.

I also pay respect to our colleagues and friends in Pakistan who, under very stringent and difficult circumstances, have been willing to assist us in the capture of Khalid Shaikh Mohammed.

At this point, I would like to change the subject.

Without losing my right to the floor.

I will be happy to yield to my colleague, without losing my right to the floor.

Mr. President, I rise today in strong support of S. 3, the Partial-Birth Abortion Ban Act of 2003. To begin, I would like to thank my colleague from the State of Pennsylvania, Senator Santorum, and applaud his leadership on this bill particularly, and on this issue generally, over the years. He is clearly very passionate about it, and is also one of the most extremely knowledgeable people anywhere on this issue. I respect him and am very proud of the work he has done on this issue.

I have spoken on the need to ban partial birth abortions many times since we began this effort many years ago. I have done so out of my personal conviction, and also because I am here to represent the people of Utah. By a huge margin, Utahns find the practice of partial-birth abortion offensive, immoral and impossible to justify as legal in America, or anywhere else in the world.

As chairman of the Senate Judiciary Committee, I have chaired several hearings about partial-birth abortions in past sessions, and I remain as convinced as ever that this important legislation is essential and will go a long way toward helping us restore our sense of human dignity in this country.

This bill does only one thing: it prohibits one particularly gruesome abortion procedure--so gruesome that only a handful of doctors are willing to perform it. This procedure is never medically necessary. It is simply morally reprehensible, indefensible, and should be banned. I honestly do not know how anyone, after learning of this procedure, could continue to defend it.

Those Members of this body who disagree with me, I think they should have to actually watch this procedure being done. Once they have seen the baby's legs kicking while it is being killed--I challenge them to defend it then, because as one can see, the legs and hands are outside, and anybody watching will know this is a fully living human being.

The procedure, known as dilation and extraction--or ``D&X''--involves the partial delivery of an intact baby into the birth canal. In the case of a breech presentation, the baby is delivered from the feet through the shoulders so only the head remains in the birth canal. And in the case of a head-first presentation, the body's full head is delivered outside the birth mother. Then, either scissors or another instrument are used to stab a hole in the base of the skull. There is no doubt that this is a living baby at this point--a baby that feels pain, make no mistake about it. After the scissors are stabbed into the head a suction catheter is inserted to suck out the baby's brains and collapse the skull. That is about as barbaric as anything I have seen or heard.

Each time I read the description of this procedure I am sickened. It is not done as a mass of tissue but to a living baby capable of feeling pain and, at the time this procedure is typically performed, capable of living outside of the womb with appropriate medical attention.

All this bill would do is ban this grotesque, barbaric procedure. We are not talking about the entire framework of abortion rights here but just one procedure. And S. 3 also provides an exception for cases where the life of the mother is endangered by a physical disorder, illness or injury.

At least 31 States--including my home State of Utah--have enacted their own partial-birth abortion bans but, sadly, many have not taken effect due to temporary or permanent injunctions. S. 3 would create a Federal ban on just the D&X procedure I have described, and it carefully conforms to the constitutional jurisprudence in this area.

Now, let me explain how this bill differs slightly from previous versions. A couple of years ago, the Supreme Court handed down an opinion in Stenberg v. Carhart, which addressed a partial-birth ban in Nebraska. The Stenberg court, relying in part on a dubious trial court finding that it was forced to accept, struck down the statute.

In fact, the trial court's finding that partial-birth abortions could be necessary to protect the health of the mother was just wrong, and the findings outlined in S. 3 clarify this point.

The record in support of the fact that D&X is never medically necessary is long. In November, 1995, I presided over a 6\1/2\ hour Senate Judiciary Committee hearing on partial-birth abortions, and we also had a 1997 joint hearing with the Constitution Subcommittee in which we heard that D&X is not done for medical reasons.

The former U.S. Surgeon General, C. Everett Koop has said:

. . . in no way can I twist my mind to see that [partial-

birth abortion] . . . is a medical necessity for the mother.

And it certainly can't be a necessity for the baby.

And Dr. Daniel Johnson, the former president of the American Medical Association said in 1997 that he and others investigating the issue:

could not find any identified circumstances in which the

procedure was the only safe and effective abortion method.

The fact is that there is no medical need to allow this type of barbaric procedure.

The 5-4 Stenberg court also had concerns that the procedure, as defined in the Nebraska statute, could have been construed to ban more than one type of abortion procedure, including one which could theoretically be used to protect the health of the mother. Based on this, the court found that the lack of a ``health of the mother'' exception created an ``undue burden'' because it could prevent a procedure that could be necessary for the health of the mother.

S. 3, the Partial-Birth Abortion Ban Act of 2003, addresses that problem as well by very specifically defining the procedure so that it only prohibits the D&X procedure, which, as our hearings have shown, and the findings in S. 3 confirm, is never necessary to protect the health of the mother.

Let me repeat, the carefully-drafted definition used in S. 3 for partial-birth abortion cannot be construed to include any abortion procedure other than the D&X procedure.

In other words, other alternative procedures, all of which will remain legal under S. 3, will be available in the event that the health of the mother needs to be preserved. For this reason, this bill does not require an exception for the health of the mother.

Now, let me address a misrepresentation that has been floated over the years--that is, that this barbaric procedure is rare. The record indicates that this is clearly not the case. In fact, one clinic in New Jersey alone admitted to 1500 of these procedures in just one year! And that is just one state. How can anyone claim that is ``rare''?

And in the State of Kansas, which requires that doctors report partial-birth abortions and also cite the reasons given for having the abortion, we found out that doctors there performed 182 partial-birth abortions in just one year on babies they deemed viable. And every one of these reports, by the way, cited ``mental health'' as the reason for having this barbaric procedure.

It is likely that there are at least 3,000 to 5,000 of these procedures performed every year, despite what some try to claim.

To further expose the lack of credibility of those who claim this procedure is rare, we need only listen to Ron Fitzsimmons of the National Coalition of Abortion Providers. He admitted in 1997 that when he told us the procedure was rare, he ``lied through my teeth.'' He added that he only represented it as being rare because, ``I just went out there and spouted the party line.'' That shows how far these people will go. Abortion is so sacred to them they see no reason to ban any aspect of it, not even this barbaric procedure.

The truth always eventually prevails over the party line, and the truth is that this procedure is not rare, and it should be banned.

I think former Sen. Daniel Moynihan had it about right when speaking in favor of this ban in previous debates he called the procedure ``close to infanticide.'' It is infanticide.

In recent years, we have heard about teenaged girls giving birth and then dumping their newborns into trash cans. One young woman was criminally charged after giving birth to a child in a bathroom stall during her prom, and then strangling and suffocating her child before leaving the body in the trash. Tragically, there have been several similar incidents around the country in the past few years.

This is what happens when we devalue human life.

William Raspberry argued in a column in the Washington Post several years ago that ``only a short distance [exists] between what [these teenagers] have been sentenced for doing and what doctors get paid to do.'' How right he is.

When you think about it, it is incredible that there is a mere three inches separating a partial-birth abortion from murder.

Now, I have sympathy for any young woman who contemplates an abortion. The circumstances that drive a woman to it must certainly be complex and appear to her to be overwhelming and insoluble.

But the D&X procedure is not an ordinary abortion. It is not contemplated by the Roe v. Wade decision. Even the Stenberg court confirmed, and I quote, ``By no means must physicians [be granted] `unfettered discretion' in their selection of abortion methods.'' So this is not about overturning Roe v. Wade--that is a red herring.

The D&X procedure is one method which we ought not give doctors the discretion to perform. It is never medically necessary, it is never the safest procedure available, and it is morally reprehensible and unconscionable.

Partial-birth abortion simply has no place in our society and rightly should be banned.

President Bush has described partial-birth abortion as ``an abhorrent procedure that offends human dignity.'' I wholeheartedly agree. I strongly urge my colleagues to join me in voting in favor of S. 3, the Partial Birth Abortion Ban Act of 2003, and help restore human dignity.

I yield the floor.

Mr. President, on behalf of myself and Senator Breaux, I rise today to introduce the Housing Bond and Credit Modernization and Fairness Act of 2003. We are joined in this legislation by Senators Allard, Collins, Sununu, and Snowe.

This bill will bring about important modifications to two important and popular Federal affordable housing programs--Housing Bonds, or single family Mortgage Revenue Bonds, MRBs, as they are commonly known, and the Low Income Housing Tax Credit. My long-time partnership on these issues with Senator Breaux is one indication of the broad bipartisan support enjoyed by these programs. Another is the fact that our identical bill in the 107th Congress attracted 79 members of this body as cosponsors.

These programs are popular because they are state-administered, federal tax incentives designed to encourage private investment in first-time homebuyer mortgages for low and moderate-income families and privately developed and owned apartments for low-income renters. Moreover, they have a proven track record of being effective in providing housing to families who need it.

As with most things, however, these programs could use some improvements. Specifically, the current law governing these two housing programs includes some obsolete provisions that act as barriers and limit their effectiveness. The legislation we are introducing today would modernize these programs and remove these barriers.

The Housing Bond and Credit Modernization and Fairness Act does three things.

First, it repeals the so-called ``Ten-Year Rule,'' a provision added to the MRB program in 1988 that prevents States from using homeowner payments on such mortgages to make new mortgages to additional qualified purchasers. For each day the Ten-Year Rule is in effect, States lose millions of dollars in financing for first-time homebuyer mortgages, amounting to more than $14 billion in mortgage authority between 2001 and 2005. This barrier keeps tens of thousands of additional qualified lower income homebuyers from getting an affordable MRB-financed mortgage, including many in my home State of Utah. Our bill eliminates the Ten-Year Rule to allow States to use mortgage payments to finance additional lower income mortgages.

Second, it replaces the present unworkable price limit for homes these mortgages can finance with a simple limit that works. Let me explain. Current law limits the price of homes purchased with MRB- financed mortgages to 90 percent of the average area home price. States have the option of determining their own purchase price limits or relying on Treasury-published safe harbor limits.

Most States have relied on the Treasury limits because it is costly and burdensome to collect accurate and comprehensive sales price data. The problem is that the Treasury Department has not been providing recent data. This has especially been a problem for states, such as Utah, with many rural areas. In fact, Treasury last issued safe harbor limits in 1994, based on 1993 data. Home prices have risen significantly in the past ten years. This means that the MRB program simply cannot work in many parts of many states because qualified buyers cannot find homes priced below the outdated limits. To have an outdated and unworkable requirement that holds back the families that this program is designed to help is poor public policy that cries out for remedy.

The answer, which is included in our bill, is to replace the present limit, set in Washington, by a simple formula limiting the purchase price to three and a half times the qualifying income under the program.

Finally, the bill makes Housing Credit apartment production viable in rural areas by allowing States to use statewide median incomes as the basis for the income limits in that program. This change would apply the same methodology for determining qualifying income levels used in the MRB Program. HUD data shows that current income limits inhibit Housing Credit development in more than 1,300 nonmetropolitan counties across the country.

I am pleased to tell my colleagues that the changes proposed by the Housing Bond and Credit Modernization and Fairness Act have been endorsed by the bipartisan National Governors Association, the National Council of State Housing Agencies, and nearly every major national housing organization. These groups know how important the Housing Bond and Housing Credit programs are in giving States the ability to meet the housing needs of low and moderate-income families.

The Housing Credit and the MRB programs work and they are important to each State. This bill gives the Congress a golden opportunity to create new housing opportunities for tens of thousands of low and moderate-income families every year, simply by improving these existing and proven programs. I encourage my colleagues to join this bipartisan effort.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, on behalf of myself and Senator Breaux, I rise today to introduce the Housing Bond and Credit Modernization and Fairness Act of 2003. We are joined in this legislation by Senators Allard, Collins, Sununu, and Snowe.

This bill will bring about important modifications to two important and popular Federal affordable housing programs--Housing Bonds, or single family Mortgage Revenue Bonds, MRBs, as they are commonly known, and the Low Income Housing Tax Credit. My long-time partnership on these issues with Senator Breaux is one indication of the broad bipartisan support enjoyed by these programs. Another is the fact that our identical bill in the 107th Congress attracted 79 members of this body as cosponsors.

These programs are popular because they are state-administered, federal tax incentives designed to encourage private investment in first-time homebuyer mortgages for low and moderate-income families and privately developed and owned apartments for low-income renters. Moreover, they have a proven track record of being effective in providing housing to families who need it.

As with most things, however, these programs could use some improvements. Specifically, the current law governing these two housing programs includes some obsolete provisions that act as barriers and limit their effectiveness. The legislation we are introducing today would modernize these programs and remove these barriers.

The Housing Bond and Credit Modernization and Fairness Act does three things.

First, it repeals the so-called ``Ten-Year Rule,'' a provision added to the MRB program in 1988 that prevents States from using homeowner payments on such mortgages to make new mortgages to additional qualified purchasers. For each day the Ten-Year Rule is in effect, States lose millions of dollars in financing for first-time homebuyer mortgages, amounting to more than $14 billion in mortgage authority between 2001 and 2005. This barrier keeps tens of thousands of additional qualified lower income homebuyers from getting an affordable MRB-financed mortgage, including many in my home State of Utah. Our bill eliminates the Ten-Year Rule to allow States to use mortgage payments to finance additional lower income mortgages.

Second, it replaces the present unworkable price limit for homes these mortgages can finance with a simple limit that works. Let me explain. Current law limits the price of homes purchased with MRB- financed mortgages to 90 percent of the average area home price. States have the option of determining their own purchase price limits or relying on Treasury-published safe harbor limits.

Most States have relied on the Treasury limits because it is costly and burdensome to collect accurate and comprehensive sales price data. The problem is that the Treasury Department has not been providing recent data. This has especially been a problem for states, such as Utah, with many rural areas. In fact, Treasury last issued safe harbor limits in 1994, based on 1993 data. Home prices have risen significantly in the past ten years. This means that the MRB program simply cannot work in many parts of many states because qualified buyers cannot find homes priced below the outdated limits. To have an outdated and unworkable requirement that holds back the families that this program is designed to help is poor public policy that cries out for remedy.

The answer, which is included in our bill, is to replace the present limit, set in Washington, by a simple formula limiting the purchase price to three and a half times the qualifying income under the program.

Finally, the bill makes Housing Credit apartment production viable in rural areas by allowing States to use statewide median incomes as the basis for the income limits in that program. This change would apply the same methodology for determining qualifying income levels used in the MRB Program. HUD data shows that current income limits inhibit Housing Credit development in more than 1,300 nonmetropolitan counties across the country.

I am pleased to tell my colleagues that the changes proposed by the Housing Bond and Credit Modernization and Fairness Act have been endorsed by the bipartisan National Governors Association, the National Council of State Housing Agencies, and nearly every major national housing organization. These groups know how important the Housing Bond and Housing Credit programs are in giving States the ability to meet the housing needs of low and moderate-income families.

The Housing Credit and the MRB programs work and they are important to each State. This bill gives the Congress a golden opportunity to create new housing opportunities for tens of thousands of low and moderate-income families every year, simply by improving these existing and proven programs. I encourage my colleagues to join this bipartisan effort.

I ask unanimous consent that the text of the bill be printed in the Record.

Madam President, I rise to declare my support for the President and his administration as he prepares this country for the coming war with Iraq.

I do this sharing the President's reluctance to go to war. But I offer my support with admiration and respect for the President for facing this decision without reluctance or avoidance, for the forbearance he has demonstrated by pursuing all other reasonable options, for courage he has shown in making the decision, and for the honesty with which he has included the American public, and the world at large, in his administration's deliberations.

The President has not shirked from the problem of Iraq. Since coming to office his administration has recognized that the United States could not ignore a stale and festering policy that had devolved to inattention and a self-deluding hope. A war never concluded in 1991-- for Saddam Hussein has never abided by the ceasefire terms of disarmament that the international community declared a condition of the end of the first Gulf War--had devolved to a collapsed inspections regime and a deteriorating sanctions regime. The international community could pass 16 resolutions declaring disarmament our goal and expectation--now 17--but the international community could not impose the inspectors to guarantee that disarmament, nor could it sustain the sanctions to force the regime to comply.

President Bush came to office recognizing the nature of Saddam Hussein's regime was not changing: Saddam was overtly intent to threaten the region, and he was covertly dedicated to amassing the terrible weapons necessary to achieving this goal. Years of inspections reports and defectors' stories confirmed, for all to see, that Saddam's behavior was not changing, and that, in fact, he was emboldened by over ten years of successfully deceiving and confronting the international community.

The administration could have looked the other way. They could have presented a rationale, heard from the streets protests today, that this was not a threat to the U.S., that Saddam was always brutal and dangerous, but that, after all, we'd never caught him plotting against us.

I wonder where the signs are saying: Saddam disarm; Saddam quit being the way you are.

I am amazed that those aren't the signs in the street demonstrations.

A previous administration looked the other way on another threat--the threat of Osama bin Laden. In 1996, I began warning that this man was a threat to the United States. Every time we acted against him, I applauded the President, but I urged us to do more. In 1998, after the attacks on our embassies in Africa, President Clinton responded by cruise missile attacks against Sudan and Afghanistan. A few people accused the President of ``wagging the dog,'' using force to distract from his other problems. I told the President two things: One, good job, Mr. President. Two, but don't let this be the only strikes. Finish the job.

Osama bin Laden lived to launch the attacks of September 11, 2001, and today he remains at large. But last weekend's capture of Khalid Shaikh Mohammed demonstrates that our war on terrorism continues relentlessly, and that the cooperation we have with foreign nations and our intelligence and law enforcement professionals will disrupt, capture and liquidate al-Qaida.

Osama bin Laden and Shaikh Khalid Mohammed launched an attack that changed the way America sees the world, and I am grateful that the Bush administration has changed American foreign policy in response. We recognize, finally, that the concept of imminence is not an abstract idea as we contemplate the preemptive use of force. Preemption is not a new concept in international law, as many of the President's critics suggest. It is as old as Grotius, the founder of modern international law. And contrary to critics' misinformed assertions, the U.S. has never forsworn the use of preemption. Not since the U.N. Charter, and not under either Democratic or Republican administrations.

Preemption has always been conditioned on the idea of imminent threat. In the pre-nuclear era, we could see the armies amassing on a border. In the nuclear era, the idea of imminence grew murkier. Was it the fueling of the ICBM? Was it the glare on the rocket as it left the launch pad? Was it the warhead's return through the atmosphere? These were the reasons why the U.S. did not adopt a no first-use policy during the era of strategic competition with the Soviet Union.

Imminence becomes murkier in an era of terrorism and weapons of mass destruction. When did the threat of al-Qaida become imminent? I know when it became manifest: Not, by the way, on September 11. Osama bin Laden had

struck many times before then. On September 11, the threat became catastrophic. It was well beyond imminent.

All Americans must be grateful to President Bush because he will never allow imminence to slip into catastrophic reality. None of us can read Saddam Hussein's intentions, Madam President. We don't know when, or if, he gives the command to pass his countless biological or chemical weapons to his numerous contacts in the international terrorist network.

We know, however, that Saddam has shown no intention of disarming.

And we know of Saddam's capabilities. As this administration has repeatedly stated to American and foreign audiences alike, there is a huge weapons gap in biological and chemical weapons. The evidence of this gap is not fabricated here; it has been meticulously collected, vetted and authenticated by the international community.

Our intelligence community, meanwhile, has asserted through the years that Saddam's Iraq is a safe harbor for international terrorism. This Congress has approved, through the last decade, these conclusions.

Association is not causation, every logic professor would say. And a cautious national security establishment would reiterate: Associating with terrorist groups, as we know Saddam Hussein has done, even training them, or giving them moral and financial support, is different than directing them. True enough. But the days of measuring imminent threat on this conservative notion are done. We will no longer confuse the reluctance to act with the self-deception that a threat is not there.

And I admire President Bush for plainly saying to the American people that the nexus of Saddam's regime of weapons of mass destruction and terrorist links is a threat we can no longer ignore. I admire the courage that says: American security cannot be held to a hope against reality but must eliminate a threat before it is too late.

I admire the President for pursuing all diplomatic options available to him. Last night he said he would submit another resolution before the Security Council, and I think that's a gutsy move. But the President has been clear, since he first took the case himself to the United Nations last September 12, that American national security would not be constrained by endless international resolutions without resolve. If the United Nations wishes to become a spineless debating society, that is its right. If it or anyone else believes that it can pervert international law to constrain the legitimate use of American force for the protection of our national security, then it will begin the 21st century on its self-imposed decline to irrelevance. I hope all members of the Security Council recognize this, as they recognize the diplomatic courage and honesty that the Bush Administration has demonstrated to that body.

Madam President, a war with Iraq will be the most serious exercise of American power in this century. We have reason to be optimistic: If we succeed militarily, and I believe without a doubt that we will, we will show the political commitment to ushering in a new era of stability and, I hope, democracy, for the people of Iraq.

At the beginning of the 20th century, colonial powers had their hand in shaping the Middle East. At the beginning of the 21st century, America is the lone superpower, but we are not a colonial power. The Administration has repeatedly stated that Iraq is for the Iraqi people, that their land, society, resources are for them to shape and mold. We will remove the oppression of Saddam and his Arab Stalinist Ba'athist dictatorship. And we in Congress, I hope, will provide the resources and support to sustain our commitment to a transition to a self- determining Iraqi society. We will work with the Iraqis, we will stay as long as we need, and we will not stay one day longer.

I admire President Bush for the candor he has shown the American people and the world. I admire him for facing difficult choices without reluctance, and I admire him for the courage he has shown in making the most difficult decisions a president can face. I join my prayers to those of countless other Americans as they pray for the success of our Armed Forces and for President Bush and his administration.

Mr. President, it is one of those ironies of history that the U.S. Senate began debate on the ratification of the latest and historic arms control treaty on the day that historians mark as the 50th anniversary of death of Stalin. Whether, in fact, Stalin died on this day, or whether he had been poisoned a few days before, is a fact that, like so many others of Soviet history, is clouded with uncertainty. But it is a fact that he was one of the most brutal dictators of the 20th century and he died at a time when the Soviet Union was a global foe of the United States.

More interesting for this debate, Stalin's death in 1953 occurred at a time when our nations were just beginning a strategic competition that would see our nuclear stockpile grow to massive and frightening levels before we reached our first accommodations, nearly 20 years after Stalin's death.

Today, while we still have many cultural and political differences with the Russian state, we cooperate on more issues than we compete, and we do not compete under the threat of nuclear annihilation.

A decade ago, the Soviet Union went to the dustbin of history, and with it went an ideological enmity that locked us in a spiral of growing nuclear arsenals and the existential comfort of mutually assured destruction, a comfort that made sense to the strategic thinker, but left of lot of other people all over the world, including in our own societies, feeling quite insecure.

After President Nixon initiated an era of arms control agreements with the first Strategic Arms Limitation Treaty, or SALT, the pendulum began to swing the other way. And, as is often the case with historic pendulums, it far exceeded a sensible point. By the early 1980s, while strategic arms treaties had already reduced the aggregate megatonnage of our combined strategic arsenals, a school of arms control theology had been accepted that, as is often the case with the social science theology of the moment, threatened to overcome all rationale thinking on strategic issues. The answer to all arms control issues was always yet another treaty. Existing treaties were sacrosanct, with the wise old dictum so famously and wisely uttered by Bismarck in the 19th century ignored: ``At the bottom of all treaties is written in invisible ink, rebus sic stantibus''--Until circumstances change.

Circumstances did change. Technologies barely imaginable in the 1960s, when the first strategic treaties were contemplated, became commonplace in the 1980s. An era of self-enforced vulnerability to mutually assured destruction, enshrined in the 1972 Anti-Ballistic Missile Treaty, became anachronistic as physicists and engineers first

imagined missile defense and then a visionary president, Ronald Reagan, grasped its potential to defend societies against missiles armed with weapons of mass destruction. In doing so, President Reagan reflected a very American belief that know-how and new thinking can provide security to those who never felt secure under mutual assured destruction.

What bumpkins and dreamers, the conventional arms control theologians declaimed. Let us dismiss these simpletons and disparage their thinking as ``Star Wars,'' they said; as if the Strategic Defense Initiative had anything to do with stars or wars, but instead a more secure world here on earth.

Today, it would be inaccurate to state that we have developed missile defense to a functionally deployable state. But, we are closer to a functional stage than those who dismissed it out-of-hand ever imagined. They were wrong and, today, our challenges to perfecting missile defense are largely in engineering, no longer scientific. A grateful Nation has President Reagan to thank for being able to transcend the conventional wisdom and believe in American creativity and technology to move us into a new strategic era.

But the arms control lobby would not relent, or even reform, through the 1980s and 1990s. We had some good arms control agreements negotiated, signed and ratified--I supported the START treaties. We had some treaties that I believed did not enhance our security--and I voted against the Comprehensive Test Ban Treaty. While I have generally supported the idea that bilateral and verifiable reductions of the strategic arsenals of Russia and the U.S., preserving necessary strategic arsenals of Russia and the U.S., preserving necessary strategic force structures, was stabilizing and therefore in our interest, I have never believed that this world would be more secure if the U.S. handicapped its nuclear option.

Circumstances changed. Our global foe of 30 years ago is not our primary threat today. The mutual assured destruction doctrine that held the world in nuclear check for nearly 50 years became suspect, an old strategic doctrine of vulnerability. New threats and new, vicious substate actors became the threats that brought us grief and anxiety.

We saw technologies spread to a host of rogue nations, many of which hold explicitly antagonistic postures toward the U.S. In 1998, a congressionally mandated Commission To Assess the Ballistic Missile Threat to the United States, chaired by Donald Rumsfeld, brought to light the fact that, ``concerted effects by a number of overtly or potentially hostile nations to acquire ballistic missiles with biological or nuclear payloads pose a growing threat to the U.S., its deployed forces and its friends and allies.'' Further, the report concluded that ``the threat to the U.S. posed by these emerging capabilities is broader, more mature and evolving more rapidly than has been reported in estimates and reports by the intelligence Community.'' Such clarity in assessment forced us to refocus the efforts of the Intelligence Community, and they responded.

But it also forced us to continued to challenge the conventional wisdom on arms control at the time, and that required that we face up to fact that we needed to proceed with our research and development of a missile defense capability, and that, if we were serious about this, we had to recognize that we would need to abandon the ABM Treaty.

One candidate for the 2000 presidential election shared the vision of President Reagan. He recognized that the ABM Treaty was not sacrosanct. In fact, he had read the test, which plainly allowed for the U.S. to withdraw. I don't know if President Bush knew the doctrine in international law of rebus sic stantibus, but President Bush certainly knew that the strategic situation had changed, and U.S. national security required that we not constrain our security for tomorrow by a concept from yesterday. Such an approach was to guarantee insecurity. And President Bush understood something fundamental about strategic doctrine: insecurity does not sustain stability.

President Bush told us all that the days of the ABM were limited. And the arms control lobby went, to make a bad pun, ballistic. Abandoning the ABM Treaty with Russia would herald a new era of unrestrained nuclear competition, as both sides would try to outbid the other's arsenal with enough weapons to overwhelm, they declared with certainty bread of doctrinaire conviction.

President Bush and his advisers didn't flinch in their thinking. But they did address the question: If the fear is that withdrawing from the ABM Treaty which we did--the U.S. withdrew from the Treaty on December 13, 2001 and the Treaty was effectively terminated 6 months later--then the U.S. will match our withdrawal from the ABM with a new proposal to lower the START II levels to historic new reductions.

And on March 24 of last year, the Russian Federation and the United States concluded the Treaty on Strategic Offensive Reductions, which will now be overwhelmingly passed as this body provides our advice and consent.

This is a historic moment for nuclear arms reduction. It is, more importantly and in my opinion, a historic moment in the evolution of arms control doctrine.

The treaty reduces operationally deployed warheads for both sides to a range of 1,700 to 2,200 by December 31, 2012. Today our arsenals are more than twice that level. The reductions are to be implemented based on the established START I verification regime and mechanism, which will be in place until 2009. The treaty allows for consultation and extension of verification mechanisms beyond that time.

The Treaty allows either party to ``determine for itself the composition and structure of its strategic offensive arms,'' meaning that we will be able to configure our triad according to the evolving needs of our nuclear posture review. The treaty does not link the objectives to our continued Cooperative Threat Reduction program, appropriately known as the Nunn-Lugar programs, recognizing all of the work the current chairman of Foreign Relations Committee and our former Democratic colleague have committed in their careers toward the cause of disarmament. I commend my colleagues on the Foreign Relations and Armed Services committees for engaging the administration in extensive discussions about continued support for this program. I strongly approve the administration's commitment to this program, and I will continue to support their budget for this.

Lord Palmerston said in the 19th century, ``We have no eternal allies and we have no perpetual enemies. Our interests are eternal and perpetual.'' Our interests evolve year-by-year, and the world remains a very hostile place. Russia competes with us geopolitically, but it does so in the Security Council, not in strategic arms.

It is in the interests of the world that our two arsenals be reduced, and it is in the interests of both of our countries that we reduce them with transparency, and flexibility.

These principles are enshrined in the Moscow Treaty. I commend the administration for concluding it with Russian administration, and I urge the Russian Duma to proceed with their own ratification, as I encourage my colleagues today to join me in support of this historic treaty.

I thank my dear colleague from Oregon for his leadership in this area. When he was in the House, he was one of the great leaders on health care issues. He is repeating that leadership in the Senate. It is a privilege to work with him because you can rely on him. When he says he will do something, he does it. He is very intelligent in health care matters. I have a lot of respect for him, and it is a privilege to work with him. I hope people will listen to the bill that we will present because it is the way to at least move us off the dime and get us to do what we should be doing on health care. I thank him and pay tribute to him this morning.

Mr. President, I join my colleagues, the distinguished minority floor leader from Nevada, who is a dear friend of the distinguished Senator from Kansas, and my dear friend from Kansas, in paying tribute to Victor Baird. That is one of the most miserable, tough jobs I think in the whole Senate. As both of them have said, there is not a lot of thanks for doing it. I personally thank him for the efforts he has put forward, and those who worked with him, because this is a very difficult job. He has always been straightforward, honest, and decent in all of the experiences I know about. I join my colleagues in their remarks and ask that I be associated with their remarks. I wish him the very best.