Floor Statements

Mr. President, I am pleased that the Senate is considering legislation today that will leave no doubt about the constitutional propriety of the appointment of administrative patent judges and administrative trademark judges within the Patent and Trademark Office. I thank my cosponsor, Senator Specter, for his work with me on this. These judges are currently appointed to their positions by the Director of the PTO. Our bill will change this process, so that the Secretary of Commerce, in consultation with the Director of the PTO, will appoint these judges, thus bringing the process more clearly in line with the appointments clause of the Constitution. This legislation will also allow the Secretary of Commerce to ratify the appointment of the current judges. A companion bill was introduced in the House.

It is important to ensure that the decisions made by these judges are allowed to stand on their merits, and that they are not nullified by a potential constitutional challenge to the appointment process somewhere down the line. By making this small change to the existing law, Congress can leave no doubt that the appointment of these judges complies fully with the process set out by the Constitution.

I am pleased that the Senate will adopt this measure today, and I hope that the House of Representatives will quickly take it up and pass it so that it can be sent to the President for his signature without delay.

Mr. President, today the Senate is poised to confirm two more nominations for lifetime appointments to the Federal bench: Cathy Seibel for the Southern District of New York and Glenn T. Suddaby for the Northern District of New York. These nominees each have the support of the New York Senators, who worked with the White House to identify a slate of consensus nominees. I thank both Senator Schumer and Senator Clinton for their work in connection with these nominees.

When these nominees are confirmed, that will bring the number of judicial nominees confirmed by the Senate during the slightly more than three years I have served as the Chairman of the Judiciary Committee to 158. Coincidentally, the number of President Bush's judicial nominees confirmed by the Senate during the almost four and one-half years of Republican control totaled 158.

I have always said that we would treat this President's nominees more fairly than Republicans treated President Clinton's. And we have. Indeed, we have matched the confirmation record that Republicans achieved for a President from their own party. We have not pocket filibustered more than 60 of this President's nominees. We are not going to return 17 circuit court nominees without action to this President as the Republican-led Senate did to President Clinton. We have not doubled the judicial vacancies and forced them above 100 nationwide, nor have we doubled the number of circuit court vacancies. To the contrary, we have cut judicial vacancies by more than half, and reduced circuit court vacancies by more than two-thirds from a high point of 32, to a low of just nine throughout all 13 Federal circuits.

The 100 nominations we confirmed in only 17 months in 2001 and 2002, while working with a most uncooperative White House, reduced the vacancies by 45 percent by the end of 2002. With 40 additional confirmations last year, and another 18 this year, the Senate under Democratic leadership has now confirmed 158 lifetime appointments to the Federal bench nominated by President Bush. Nearly half of the judicial nominees the Senate has confirmed while I have served as the chairman of the Judiciary Committee have filled vacancies classified by the Administrative Office of the Courts as judicial emergency vacancies. Eighteen of the 27 circuit court nominees confirmed while I have chaired the committee filled judicial emergency vacancies, including nine of the 10 circuit court nominees confirmed this Congress. This is another aspect of the problem created by Republicans that we have worked hard to improve. When President Bush took office there were 28 judicial emergency vacancies. Those have been reduced by more than half.

In the 2 full years that preceded my returning as chairman of the Judiciary Committee in 2007, with a Republican chairman and a Republican Senate majority working to confirm the judicial nominees of a Republican President, 54 nominations were confirmed. After the two confirmations today, we will reach 58 judicial confirmations for this Congress. Truth be told, President Bush's judicial nominees have been confirmed faster by the Democratic majority than by the previous Republican majority of the Senate.

Judicial vacancies have been reduced from 10 percent as we made the transition to the Bush administration to 4.5 percent today. I wish we could say the same about unemployment, the cost of gasoline, food prices, health care costs, about inflation and the national debt, but all those indicators have been moving in the wrong direction, as is consumer confidence and the percentage of Americans who see the country as on the wrong track.

Republican critics ignore the progress we have made on judicial vacancies. They also ignore the crisis that they had created by not considering circuit nominees in 1996, 1997 and 1998. They ignore the fact that they refused to confirm a single circuit nominee during the entire 1996 session. They ignore the fact that they returned 17 circuit court nominees without action to the White House in 2000. They ignore the public criticism of Chief Justice Rehnquist to their actions during those years. They ignore the fact that they were responsible for more than doubling circuit court vacancies during their pocket filibusters of Clinton nominees or that we have reduced those circuit court vacancies by more than two thirds.

In fact, as the Presidential elections in 2000 drew closer, and when the judicial vacancy rate stood at 7.2 percent, then-Judiciary Committee Chairman Orrin Hatch declared that ``There is and has been no judicial vacancy crisis,'' and that 7.2 percent was a ``rather low percentage of vacancies that shows the judiciary is not suffering from an overwhelming number of vacancies.'' As a result of Republican inaction, the vacancy rate continued to rise, reaching 10 percent when the Democrats took over the Senate majority in 2001.

Democrats have reversed course. We have cut circuit court vacancies by more than two-thirds, from a high of 32. With the confirmation of two nominees today, the judicial vacancy rate will be just 4.5 percent.

I have yet to hear praise from a single Republican for our work in lowering vacancies. I also have yet to hear in the Republican talking points any explanation for their actions during the 1996 congressional session, when the Republican Senate majority refused to allow the Senate to confirm even one circuit court judge. I have yet to hear explanations for why they did not proceed with the nominations of Bonnie Campbell, Allen Snyder and so many others.

I hope the American people will not witness another week in which Senate Republicans attempt to make a partisan, election-year issue out of the confirmation of judicial nominations. This is the one area where the numbers have actually improved during the Bush presidency while the life of hardworking Americans has only gotten more difficult. The Treasury Secretary has been quite sobering about the financial difficulties still ahead. Inflation is now on the rise, jobs are being lost, gas prices have skyrocketed, food prices have soared, health care is unaffordable and yet Republicans want come to the floor to pick a partisan fight about the pace of judicial confirmations while the Senate proceeds to confirm two more judges.

Americans have seen the unemployment rate rise to 5.5 percent and trillions of dollars in budget surplus have turned into trillions of dollars of debt. Last week General Motors announced layoffs. The annual budget deficit is in the hundreds of millions of dollars, the dollar has lost half its value, and the costs of the Iraq war and interest on the national debt amounts to $1.5 billion a day.

When President Bush took office, the price of gas was $1.42 a gallon. Today, it is over $4.00 a gallon. The housing crisis and mortgage crisis threatens the economy. The stock market dropped 2,000 points in the first six months of the year and went under 11,000.

Hardworking Americans trying to do the best they can for their families are more concerned about critical issues they face in their lives each day. They are concerned about affording to heat their homes this winter. They are concerned about gas prices that have skyrocketed so high they do not know how they will afford to drive to work. They are concerned about the steepest decline in home values in two decades. More and more Americans are affected by rising unemployment, with job losses for the first six consecutive months of this year tallying over 438,000. Americans are worried about soaring health care costs, rising health insurance costs, the rising costs of education and rising food prices. The partisan, election-year rhetoric over judicial nominations, at a time when judicial vacancies have been significantly reduced, is a reflection of misplaced priorities.

Our progress today in confirming two more nominations for lifetime appointments shows that when the President works with home State Senators to identify consensus, well-qualified nominees, we can make progress, even this late in an election year. I congratulate the nominees and their families on their confirmations today.

The Federal judiciary is the one arm of our Government that should never be political or politicized, regardless of who sits in the White House. I will continue in this Congress, and with a new President in the next Congress, to work with Senators from both sides of the aisle to ensure that the Federal judiciary remains independent and able to provide justice to all Americans, without fear or favor.

Last week the Senate Judiciary Committee was scheduled to consider a number of bipartisan measures. Several are important items on which Republicans had already delayed consideration since June. They include the bipartisan bill to reauthorize the Juvenile Justice and Delinquency Prevention Act, a bipartisan OPEN FOIA bill and the bipartisan William Wilberforce Trafficking Victims Protection Reauthorization Act. In addition, we had before us the Fairness in Nursing Home Arbitration Act, the Fugitive Information Networked Database Act, the Methamphetamine Production Prevention Act and the National Guard and Reservists Debt Relief Act.

I had hoped that last week we would be able to report these measures. A few words about one of them--the legislation to reauthorize the William Wilberforce Trafficking Victims Protection Act. This bill would strengthen our efforts to stop the abhorrent practice of human trafficking around the world. Our bill enhances protections for victims of these terrible crimes. Human trafficking is a modern-day form of slavery, involving victims who are forced, defrauded or coerced into sexual or labor exploitation. These practices continue to victimize hundreds of thousands around the world, mostly women and children, and we must do all that we can to be more effective in confronting this continuing problem. I thank Senator Biden for his leadership. Unfortunately, Republican partisan antics have gotten in the way of progress on this front and delayed the Judiciary Committee and the Senate from acting on this measure.

Rather than meet and work on the human trafficking bill and the others, a number of the Republican Senators who serve on the Judiciary Committee came to the Senate floor while Republicans objected to the committee meeting. That was too bad. It set back our legislative agenda.

Republicans previously boycotted business meetings for the month of February when we were trying to report judicial nominations. That only slowed our progress. Then, when we tried to expedite consideration of two circuit court nominations in May, they objected. Those judicial nominations were finally confirmed late in June.

I look forward to a time when Senators from the other side of the aisle return to work with us on the important legislative business of the Judiciary Committee and the Senate. It would be refreshing if they recognized the progress we have made on filling judicial vacancies.

When they do, when they show cooperation, when we are able to make progress on our legislative agenda, at that point I will be able to turn my attention from concentrating on that legislative agenda and consider, along with the majority leader, whether there are additional judicial nominees we might be able to consider and confirm this year. It will be difficult to do so, especially in connection with nominees recently received for whom we do not have an ABA peer review rating at this time.

Let me give you some flavor of how petty the obstructionism from Republicans has become. I introduced at the request of the Chief Justice a bill to extend authorization for the Supreme Court police to remain in operation, S. 3296. I have been trying to clear this measure for passage since June 19. Although our Ranking Republican on the Committee cosponsored, he has not been able to clear it on his side of the aisle.

I have been seeking for months to find a way to extend the EB-5 investor visa pilot program that brings benefits

not only to Vermont but to Pennsylvania and Iowa, and elsewhere. Authority for this worthwhile program that leads to investments here in the United States expires in September. My efforts to clear H.R. 5569, a bill to extend the program for 5 years, have been stymied by Republicans who insist on using this bill as a vehicle for other immigration-related matters and have ensnarled it in a series of competing concerns.

More broadly, the Judiciary Committee has worked throughout this Congress to advance the priorities of Americans. We have reported legislation to support local law enforcement to make our cities and towns safe from crime that has now gone back up after consistent declines in the 1990s, like the COPS Improvements Act, S. 368, and my bill to extend the Bulletproof Vest Partnership Grant Act, S. 2511. We have reported legislation to combat fraud and corruption, like the War Profiteering Prevention Act, S. 119, and the Public Corruption Prosecution Improvements Act, S. 1946. We have reported legislation to protect the civil rights and voting rights of Americans, like the Emmett Till Unsolved Civil Rights Crime Act, S. 535, and Senator Obama's Deceptive Practices and Voter Intimidation Prevention Act of 2007, S. 453. We have reported legislation to protect Americans' data privacy like my Personal Data Privacy and Security Act, S. 495. We have reported measures to provide the Federal judiciary with increased resources both in terms of salary restoration and additional judgeships, S. 1638 and S. 2774. We have reported intellectual property measures like the Shawn Bentley Orphan Works Act, S. 2913. And, of course, we have reported the bill to confront the OPEC cartel, NOPEC, S. 879. I look forward to a time when Republicans work with us on these matters instead of obstructing us at every turn.

Legislation with broad bipartisan support that I have managed to move through the Judiciary Committee has then been stalled on the Senate floor by the obstruction of a few Republicans. Of the bills that have been reported from the Judiciary Committee this Congress, Republicans have blocked legislation to support runaway and homeless young people, S. 2982; to help law enforcement cope with mentally ill offenders, S. 2304; to support the investigation and prosecution of civil rights era murders left unsolved for too long, S. 535; and to protect our children from the scourges of drugs, child pornography, and child exploitation, such as S. 1210, S. 1738 and S. 2344. I joined the Majority Leader in introducing a measure yesterday that combines some of these Committee- approved and House-passed bipartisan measures into one bill, S. 3297. These should have been consent items and already been considered and passed by the Senate.

The list goes on. I say, again, Republican obstructionists have blocked legislation to ensure that law enforcement officers can obtain bulletproof vests, to give much needed resources to State and local law enforcement, to break the grip of the OPEC cartel on oil prices, to prohibit war profiteering, to train prosecutors, and to teach children to use the internet safely, just to reiterate a few examples. And that is just legislation reported by the Judiciary Committee. Every Committee in the Senate has seen simple legislation intended to help the American people in difficult times stymied by Republican obstruction.

Republicans have become masters of true obstruction, boycotting business meetings of the Judiciary Committee and cutting short important hearings, including a hearing at which two courageous women from Pennsylvania were testifying about severe injuries they suffered to help us understand the plight of hardworking Americans whose legitimate grievances have been rejected by a pro-business Supreme Court. When Republicans obstructed a meeting last week where we could have made progress on reducing youth violence, protecting women and children from human trafficking, and helping those who serve our country to cope with unmanageable debt, that was just the latest example of a pattern that has become all too familiar.

Sadly, we have seen Republican obstructionism since the beginning of this Congress, with Republicans using filibuster after filibuster to thwart the will of the majority of the Senate from doing the business of the American people. Republican filibusters prevented Senate majorities from passing the climate change bill; the Employee Free Choice Act; the Lilly Ledbetter Fair Pay Act; the DC Voting Rights Act; the Renewable Fuels, Consumer Protection, and Energy Efficiency Act of 2007; the Renewable Energy and Job Creation Act of 2008; the Medicare Improvements for Patients and Providers Act of 2008; and the Consumer- First Energy Act.

These are critical pieces of legislation to address urgent priorities like the energy crisis, the environment, voting rights, health care, and fair wages for working men and women. All of them had the support of the majority of the Senate. And all were blocked by a minority of Republican Senators bent on preventing us from making progress. Republicans have now filibustered more than 80 pieces of legislation in this Congress. We can only imagine what we could have accomplished in this Congress with cooperation rather than obstruction.

This long list of priorities unaddressed because of the Republicans in Congress would be even longer if we were to include the many important bills President Bush has vetoed since the beginning of this Congress. This list includes legislation to fund stem cell research to fight debilitating and deadly diseases, to extend and expand the successful State Children's Health Insurance Program that would have provided health insurance to more of the millions of American children without it, to set a timetable for bringing American troops home from the disastrous war in Iraq, and to ban waterboarding and help restore America as a beacon for the rule of law.

The American people are going through increasingly difficult times, and their Congress should be working to make their lives better. Time is running short in this Congress. It is past time for Republicans to stop their foot stomping and work with us to get things done. That is what I have been trying to do throughout this Congress. I hope, despite their recent antics, that Republicans will reconsider and join with me to make progress on legislative matters of concern to the American people.

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

Mr. President, today I introduce legislation cosponsored by Senator Specter that would extend for 5 years the authority of the United States Supreme Court Police to protect Supreme Court Justices when they leave the Supreme Court grounds. In January of this year, after months of compromise, the Court Security Improvement Act was signed into law to authorize additional resources to protect Federal judges, personnel, and courthouses. The bill that we are introducing today would extend the authority of the U.S. Supreme Court Police to protect the Supreme Court Justices on and off Court grounds. It would also change the title of the Chief Justice's senior advisor from ``Administrative Assistant'' to ``Counselor.'' The administrative assistant position was created by statute in 1972.

We have extended the U.S. Supreme Court Police's authority to protect Justices before, the last time in 2004. This authority expires at the end of this year. I urge Senators to pass this legislation quickly so we can provide Supreme Court Justices the protection that they need as they serve our country.

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

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

Mr. President, today I introduce legislation cosponsored by Senator Specter that would extend for 5 years the authority of the United States Supreme Court Police to protect Supreme Court Justices when they leave the Supreme Court grounds. In January of this year, after months of compromise, the Court Security Improvement Act was signed into law to authorize additional resources to protect Federal judges, personnel, and courthouses. The bill that we are introducing today would extend the authority of the U.S. Supreme Court Police to protect the Supreme Court Justices on and off Court grounds. It would also change the title of the Chief Justice's senior advisor from ``Administrative Assistant'' to ``Counselor.'' The administrative assistant position was created by statute in 1972.

We have extended the U.S. Supreme Court Police's authority to protect Justices before, the last time in 2004. This authority expires at the end of this year. I urge Senators to pass this legislation quickly so we can provide Supreme Court Justices the protection that they need as they serve our country.

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

Madam President, I am pleased the Senate will unanimously pass the United States Parole Commission Act of 2008, a bill Senator Specter and I introduced that will extend the life of the U.S. Parole Commission by 3 years. Without quick action by Congress, the Commission will expire on

October 31, 2008. Senate passage is an important first step to ensure this does not happen.

The U.S. Parole Commission is responsible for granting or denying parole for incarcerated Federal and DC prisoners who were sentenced before the Federal and DC governments abolished parole. The Commission was created and empowered to consider the requests of these ``old law'' Federal and DC inmates, but it also has jurisdiction over DC offenders who are on supervised release from prison.

Originally slated to expire in 1992, Congress has extended the life of the Commission four times. Another extension is necessary to ensure the orderly administration of the law, and to avoid the risk of premature release of offenders. If the authorization lapses, the law requires the Commission to set release dates for all parole-eligible Federal prisoners. In addition, there is no mechanism to handle DC parolees who are on supervised release from prison.

A limited extension will avoid these potential problems, and will give the Justice Department time to evaluate whether any changes to the Commission are necessary.

I urge the House to work quickly to pass this bill and send it to the President so that it can be effective before the Commission's authorization expires in October.

Mr. President, today we continue to make progress by having confirmed two more nominations for lifetime appointments to the Federal bench: Paul Gardephe for the Southern District of New York and Kiyo Matsumoto for the Eastern District of New York.

These nominees each have the support of the New York Senators, who worked with the White House to identify a slate of consensus nominees. I thank Senators Schumer and Clinton for their consideration of these nominees. I also thank Senator Schumer for chairing the hearing on their nominations.

It is ironic that again this week the Senate Republicans have made another attempt to make a partisan, election-year issue out of the confirmation of judicial nominations. This is the one area where the numbers have actually improved during the Bush Presidency while the life of hardworking Americans has only gotten more difficult. Inflation is now on the rise, jobs are being lost, gas prices have skyrocketed, food prices have soared, health care is unaffordable and what Republicans come to the floor to pick a partisan fight about today is the pace of judicial confirmations.

Americans have seen the unemployment rate rise to 5.5 percent and trillions of dollars in budget surplus have turned into trillions of dollars of debt. This week General Motors announced layoffs. The annual budget deficit is in the hundreds of millions of dollars, the dollar has lost half its value and the costs of the Iraq war and interest on the national debt amount to $1.5 billion a day. And today Republicans spent their time on the Senate floor--after the Democratic leadership of the Senate had pushed through two more judicial confirmations to lifetime appointments--to complain about the pace of judicial confirmations.

When President Bush took office, the price of gas was $1.42 a gallon. Today it is at an all-time high of over $4.10 a gallon. The Nation's trade deficit widened 8 percent in April alone due to the surging gas prices, and is now at its highest level in 13 months. The housing crisis and mortgage crisis threaten the economy. The Chairman of the Federal Reserve gave sobering testimony this week to the Senate and the House. The stock market lost 2,000 points in the first 6 months of the year and went

under 11,000. But Republicans want to talk about judicial confirmations, an issue that they hope will charge up rightwing voters.

Struggling Americans--no not whiners, but hardworking Americans trying to do the best they can for their families--are more concerned about critical issues they face in their lives each day. They are concerned about affording to heat their homes this winter. They are concerned about gas prices that have skyrocketed so high they do not know how they will afford to drive to work. They are concerned about the steepest decline in home values in two decades. More and more Americans are affected by rising unemployment, with job losses for the first 6 consecutive months of this year tallying over 438,000. Americans are worried about soaring health care costs, rising health insurance costs, the rising costs of education and rising food prices. The partisan, election-year rhetoric over judicial nominations, at a time when judicial vacancies have been significantly reduced, is a reflection of misplaced priorities.

Our progress today in confirming two more nominations for lifetime appointments shows that when the President works with home state Senators to identify consensus, well-qualified nominees, we can make progress, even this late in an election year.

Paul Gardephe has been a partner and chair of the Litigation Department at the New York law firm of Patterson, Belknap, Webb & Tyler LLP since 2003. Previously, Mr. Gardephe worked in the private sector and also held several positions with the Department of Justice, including special counsel for the Office of the Inspector General.

Kiyo Ann Matsumoto is a U.S. magistrate judge in the Eastern District of New York. Prior to her appointment to the bench in 2004, Judge Matsumoto served as an assistant U.S. attorney for the Eastern District of New York and also worked in private practice. Judge Matsumoto is only the fourth Asian-American judge appointed by this President in nearly 8 years. Her mother and father spent time in an internment camp during World War II, one of the dark days in American history when we allowed fear and prejudice to undermine our commitment to liberty and justice. Now Judge Matsumoto is poised to be confirmed to a lifetime appointment to the Federal bench, charged with protecting the rights of all Americans.

I congratulate the nominees and their families on their confirmation today. The Federal judiciary is the one arm of our Government that should never be political or politicized, regardless of who sits in the White House. I will continue in this Congress, and with a new President in the next Congress, to work with Senators from both sides of the aisle to ensure that the Federal judiciary remains independent, and able to provide justice to all Americans, without fear or favor.

Even while we hear a steady stream of grumbling from Republicans, responding to partisan pressure from special interest groups, the Senate continues to make progress in reducing judicial vacancies to lows not seen in decades. We have gone quite a ways to make up for the abuses the Republicans committed during the Clinton years. Since the years in which Republicans pocket-filibustered more than 60 of President Clinton's moderate and qualified judicial nominees, and judicial vacancies topped 100, we have cut vacancies by more than half and reduced circuit court vacancies by almost three-fourths from a high point of 32, to just nine throughout the entire country and throughout all 13 Federal circuits.

The contrast is stark between the Democratic majority that cut vacancies dramatically during the Bush Presidency and the Republican majority that doubled them during the Clinton Presidency. The 100 nominations we confirmed in only 17 months in 2001 and 2002, while working with a most uncooperative White House, reduced the vacancies by 45 percent by the end of 2002. Consider this snapshot: On July 15, 2000, when a Republican Senate majority was considering the judicial nominees of a Democratic President in Presidential election year, there were 61 judicial vacancies. Twenty were circuit court vacancies On July 15 of this year, before today's two confirmations, there were 42 total vacancies throughout the country, and for the first time in decades, circuit court vacancies were in single digits, at just 9. For the first time since Republicans began their obstruction of President Clinton's judicial nominees in 1996, circuit vacancies had been reduced to single digits.

With 40 additional confirmations last year, and another 16 so far this year, the Senate under Democratic leadership has already confirmed more judges than in the entire last Congress. In 2 full years with a Republican chairman and a Republican Senate majority working to confirm the judicial nominees of a Republican President, 54 nominations were confirmed. After the two confirmations today, we will have already reached 56 judicial confirmations for this Congress. Two additional nominations remain pending on the Senate's Executive Calendar. With a little cooperation from Republican Senators, who objected earlier today to the majority leader's proposal to consider two judges today with a 1 hour time agreement, those two judicial nominations could also be confirmed. Then we will not only have exceeded the total of the last Congress but equaled under Democratic leadership the total number of nominees confirmed in 4\1/2\ years of Republican control of the Senate. Truth be told, President Bush's judicial nominees have been confirmed faster by the Democratic majority than by the previous Republican majority of the Senate. To date, the Democratic majority has confirmed 156 of President Bush's judicial nominations in the 3 years that I have chaired the Judiciary Committee. Judicial vacancies have fallen from 9.9 percent at the start of the Bush administration to just 4.7 percent today.

The colloquies on the Senate floor today included misinformation about judicial emergency vacancies. Many of these resulted from the Republican slowdown during the Clinton years. In fact nearly half of the judicial nominees the Senate has confirmed while I have served as the chairman of the Judiciary Committee have filled vacancies classified by the Administrative Office of the Courts as judicial emergency vacancies. Eighteen of the 27 circuit court nominees confirmed while I have chaired the committee filled judicial emergencies, including 9 of the 10 circuit court nominees confirmed this Congress. This is another aspect of the problem created by Republicans that we have worked hard to improve. When President Bush took office there were 28 judicial emergency vacancies. Those have been reduced by more than half.

Republicans playing to the far right wing of their political base ignore this progress. They also ignore the crisis they had created by not considering circuit nominees in 1996, 1997 and 1998. They ignore the fact that they refused to confirm a single circuit nominee during the entire 1996 session. They ignore the fact that they returned 17 circuit court nominees without action to the White House in 2000. They ignore the public criticism of Chief Justice Rehnquist to their actions during those years. They ignore the fact that they were responsible for more than doubling circuit court vacancies during their pocket filibusters of Clinton nominees or that we have reduced those circuit court vacancies by almost three quarters.

In fact, as the Presidential elections in 2000 drew closer, and when the judicial vacancy rate stood at 7.2 percent, then-Judiciary Committee Chairman Orrin Hatch declared that ``There is and has been no judicial vacancy crisis,'' and that 7.2 percent was a ``rather low percentage of vacancies that shows the judiciary is not suffering from an overwhelming number of vacancies.'' As a result of their inaction, the vacancy rate continued to rise, reaching 10 percent when the Democrats took over the Senate majority in 2001.

Democrats have reversed course. We have cut circuit court vacancies by nearly three-quarters, from a high of 32 to only 9. With the confirmation of two nominees today, the vacancy rate will be just 4.7 percent.

I have yet to hear praise from a single Republican for our work in lowering vacancies. I also have yet to hear in the Republican talking points any explanation for their actions during the 1996 congressional session, when the Republican Senate majority refused to allow the Senate to confirm even one circuit court judge.

Republicans' childish antics this year include boycotting business meetings of the Judiciary Committee, cutting hearings short or objecting to them being held and cutting short business meetings of the committee. Today we were scheduled to consider a number of bipartisan measures. Several are important items on which Republicans had already delayed consideration since June. They include the bipartisan bill to reauthorize the Juvenile Justice and Delinquency Prevention Act, a bipartisan OPEN FOIA bill and the bipartisan William Wilberforce Trafficking Victims Protection Reauthorization Act. In addition, we had before us the Fairness in Nursing Home Arbitration Act, the Fugitive Information Networked Database Act, the Methamphetamine Production Prevention Act and the National Guard and Reservists Debt Relief Act.

I had hoped that today we would be able to report these measures. A few words about one of them--the legislation to reauthorize the William Wilberforce Trafficking Victims Protection Act. This bill would strengthen our efforts to stop the abhorrent practice of human trafficking around the world. Our bill enhances protections for victims of these terrible crimes. Human trafficking is a modern-day form of slavery, involving victims who are forced, defrauded or coerced into sexual or labor exploitation. These practices continue to victimize hundreds of thousands around the word, mostly women and children, and we must do all that we can to be more effective in confronting this continuing problem. I thank Senator Biden for his leadership. Unfortunately, Republican partisan antics have gotten in the way of progress on this front and delayed the Judiciary Committee and the Senate from acting on this measure.

Rather than meet and work on the human trafficking bill and the others, a number of the Republican Senators who serve on the Judiciary Committee came to the Senate floor while Republicans objected to the committee meeting. That is too bad.

They previously boycotted business meetings for the month of February when we were trying to report judicial nominations. That only slowed our progress. Then, when we tried to expedite consideration of two circuit court nominations in May, they objected. Those judicial nominations were finally confirmed late in June.

As my friend, the senior Senator from Pennsylvania may recall, while chairman of the committee, I helped him move forward with the judicial nominations of Nora Barry Fischer, and Thomas Hardiman to the Third Circuit, and with Legrome Davis, Michael Baylson, Cynthia Rufe, Christopher Conner, John Jones III, David Cercone, Timothy Savage, Terrence McVerry, Arthur Schwab, James Gardner to the Federal district courts in Pennsylvania despite the way President Clinton's Pennsylvania nominees were treated. I also had the committee proceed to the Third Circuit nomination of D. Brooks Smith, a nomination which I did not support. As ranking member, I worked with Chairman Hatch and Chairman Specter in connection with the confirmations of Michael Fisher and Franklin van Antwerpen to the Third Circuit, as well as the nominations of Thomas Hardiman, Gene Pratter, Lawrence Stengel, Paul Diamond, Juan Sanchez, and Thomas Golden to Federal district court in Pennsylvania. With the exception of two nominees from Pennsylvania currently pending before the Judiciary Committee that do not have the support of their home State Senators, every judicial nominee for a Pennsylvania vacancy nominated by President Bush has been confirmed by the Senate. That is 23 nominations in all, including four to the Third Circuit.

As my good friend from Iowa may recall, I expedited confirmation of John Jarvey and Michael Mellow to the Eighth Circuit, and James Gritzner and Linda Reade to the Federal district court in Iowa. As we discussed at a recent committee business meeting, thanks to all our work, there is no Federal judicial vacancy in Iowa, not one.

I did not hear the Senator from Arizona recall my cooperation over the years in the confirmation of a number of Federal judges in Arizona. The Senate confirmed David Campbell, Neil Vincent Wake, Frederick Martone, Cindy Jorgenson, and David Bury. Among the last judges confirmed in 2000 was the Senator from Arizona's close friend James Teilborg. I accommodated Senator Kyl as recently as last month in connection with the most recent Federal judge appointed in Arizona, Judge Murray Snow. That filled the only vacancy on the Federal bench in Arizona. So like Iowa, given our action, there is no Federal judicial vacancy in Arizona, not one.

As for my friend from Alabama, he is another member I have gone out of my way to assist over the years. In particular, I remember the confirmation of Kristi Dubose. There were also the confirmations of Karon Boudre, Callie Granade and Mark Fuller while I chaired the committee. The Senate has also confirmed William Steele, L. Scott Coogler, R. David Proctor, Virginia Hopkins and W. Keith Watkins, all of whom I supported. Having helped confirm 10 Federal judges in Alabama since 2001, I wondered why he did not note that Alabama is another State that, thanks to our efforts, has no judicial vacancy, not one.

I look forward to a time when Senators from the other side of the aisle return to work with us on the important legislative business of the Judiciary Committee. It would be refreshing if they recognized the progress we have made on filling judicial vacancies. We have not pocket-filibustered 60 of President Bush's judicial nominees, as they did to President Clinton. We have not engaged in tit for tat. But, as even Senator Specter acknowledged this morning, nothing we do will satisfy Republican Senators.

Mr. President, I was privileged to attend the event at the National Building Museum this morning commemorating the FBI's centennial anniversary. It was an extraordinary event honoring the dedicated men and women of the FBI. Four of the six FBI Directors who have guided this agency over the last 84 years were present, and Director Mueller made an inspiring speech to mark the occasion. He spoke about the history of the Bureau, paid tribute to those who have served and are currently serving, and spoke about the elements in the FBI's motto of ``fidelity, bravery and integrity.''

I was especially struck by Director Mueller's description of the values that guide the Bureau, values that are important to effective law enforcement. He said:

It is not enough to stop the terrorist--we must stop him

while maintaining his civil liberties.

It is not enough to catch the criminal--we must catch him

while respecting his civil rights.

It is not enough to prevent foreign countries from stealing

our secrets--we must prevent that from happening while still

upholding the rule of law.

The rule of law, civil liberties, and civil rights--these

are not our burdens. They are what make us better. And they

are what have made us better for the past 100 years.

I commend the Director for his words and for his service. I congratulate the men and women of the FBI and thank them for all they do every day to keep Americans safe, establish justice, and allow us to secure the blessings of liberty.

I ask that the remarks of Director Mueller be printed in the Record.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Amendment No. 5082

Madam President, I support this bill, which extends the authorization of United States HIV/AIDS programs administered by the Office of the Global AIDS Coordinator, and includes several important changes to the former authorization act. I commend Senators Biden and Lugar, and their capable staff, for the outstanding work they have done, over many months, to get this bill through committee and to the Senate floor.

This administration will not be remembered for its foreign policy achievements. In fact our country's reputation and leadership have been badly damaged in the past 7 years, due to colossal blunders by this White House that will take years to overcome. But I do credit President Bush for his consistent support for significant increases in funding to combat HIV/AIDS around the world.

The Congress, of course, has surpassed the President's requests by increasing funding for the PEPFAR program by $2 billion over the past 5 years. We will continue to support this program whoever is the next President.

In addition to authorizing $50 billion over 5 years for HIV/AIDS programs, the bill would call for increased U.S. contributions to the global fund to fight AIDS, TB and malaria. The global fund is a mechanism for multilateral cooperation which has strong support in Congress, although the President has consistently cut funding for it. Like PEPFAR, the global fund is providing antiretroviral drugs to increasing numbers of people infected with HIV, and it is expanding its prevention programs in many countries that are not PEPFAR focus countries.

This bill does authorize considerably more--$20 billion more--than what the President initially proposed. Some Senators in the other party have objected to that increase. Madam President, $50 billion is a lot of money. But those same Senators have never uttered a word of objection to spending hundreds of billions of dollars in emergency, off budget funding for a war that could have been avoided, has cost thousands of lives, that has made us less secure.

There is little doubt these additional funds will be needed, although the capacity to use such large increases will take time to build. Ultimately, it will be a matter for the Appropriations Committee. At this point we are a long way from having the budget allocation to fund these amounts, so we should not be under any illusions. It is one thing to authorize funding, but quite another to appropriate the money. Were we to try to meet this level today, we would have nothing left to meet other pressing demands and threats around the world. We cannot put all our eggs in one basket without causing serious damage to other critical foreign policy programs.

There is also the question of how much we can do bilaterally and how much should be done through the global fund. We need to know what the right balance is--something the President has repeatedly ignored in his budget requests.

This bill tackles many other issues, including how best to allocate HIV/AIDS funds. When the Republicans were in the majority at the time of the first PEPFAR authorization, the Congress took a prescriptive approach, even legislating percentages of the funds that must be used for treatment or prevention, or which types of organizations could receive funding. We are still struggling with that misguided legacy.

My own view is that the less Congress injects itself into matters of global health the better, because the result is too often that politics and ideology take precedence over what is in the best interest of public health in a particular country. Every country has different conditions, different capacity, and different social traditions, and trying to legislate in Washington the approach that should be used in Mali or Bangladesh or Brazil is fraught with problems.

To me, the bottom line is simple. We are a country whose economy dwarfs all others. AIDS is a global pandemic--with over 33 million people infected--that knows no geographical boundaries. It threatens us all, but in some countries the needs are far greater. In Africa, people suffering from AIDS succumb from malnutrition and water borne illnesses. Others, in Haiti or Asia, suffer in pitiful conditions with no one to care for them. From Cambodia to Cameroon, grandmothers are caring for five, six, seven children on an income of a dollar or two a day.

The PEPFAR program represents the best face of America. It is one way for the United States to mitigate some of the damage to our image, by saving lives in countries where AIDS no longer has to mean a death sentence.

We need to do a better job of making sure that our PEPFAR and global fund dollars are used as effectively as possible, which has not always been the case. The oil producing countries, which are making huge profits and yet contribute little to the global fund, need to do a lot more. And the Congress needs to give the public health professionals at PEPFAR, the U.S. Agency for International Development, and the Global Fund the flexibility to make decisions based on the health needs of each country.

Again, I commend Senators Biden and Lugar, and their staffs, for completing this bill.

Madam President, this month marks the 100th anniversary of the birth of Justice Thurgood Marshall, a legal giant who left an enduring imprint on the Nation. As an advocate, he challenged his country to live up to its promises of equal justice for all citizens. As a jurist, he served as our collective conscience and articulated our deepest convictions. Today we pay tribute to this American hero, and we recognize that our democracy is stronger because he lived.

Justice Marshall was the great grandson of a slave. He attended segregated schools in Baltimore. From these humble origins, he rose to become the first African American to be Solicitor General of the United States, to sit on the Second Circuit Court of Appeals, and to serve on the highest court in the land.

Justice Marshall, however, was more than a legal pioneer. He worked tirelessly to realize his vision of civil rights lawyers acting as social engineers who would change America for the better. He endured countless hardships and risked his life traveling through the South seeking to secure civil rights. Justice Marshall did so because of his abiding faith that racial injustice was incompatible with our highest ideals. He believed America could be more inclusive and our democracy more expansive than the Founders ever imagined.

Because of his audacious work and his indomitable spirit, our children and grandchildren are able to learn and live together. Minority candidates can--and have--run for public office, and we are part of living history as Senator Barack Obama continues his campaign to become this country's first African-American President. The poor and the powerless cannot be compelled to confess to a crime while under duress. And all Americans enjoy strengthened privacy and first amendment protections. These are some of the many achievements of Justice Marshall.

Despite his enormous contributions, Justice Marshall's work to secure basic rights for all remains unfulfilled. Today, racial bias persists and human rights violations continue to challenge our commitment to equal justice. Equally disturbing, the current Supreme Court has begun closing the courthouse doors to those Americans

most in need of the Court's protection and rolling back decades of progress on civil rights.

I recall a 1992 Independence Day speech by Justice Marshall where he eloquently reminded us that guarding our precious rights requires constant vigilance. He said: ``Democracy just cannot flourish amid fear. Liberty cannot bloom amid hate.''

As we honor this great man today, let our tribute be a renewed commitment to ensuring that our Federal courts are comprised of men and women who share Justice Marshall's commitment to protecting our fundamental freedoms and securing equal justice for all.

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

I ask for the yeas and nays.

Mr. President, I applaud the Senator from Wisconsin for his statement. I concur with it.

The Senate has before it three amendments to bring accountability to this legislation: the Dodd-Feingold-Leahy amendment, the Specter amendment, and the Bingaman alternative. I intend to vote in favor of each of these three amendments.

As I noted at the outset of this debate and consistently throughout the course of Senate consideration of these matters, I oppose legislation that does not provide accountability for the 6 years of illegal, warrantless wiretapping initiated and approved by the Bush- Cheney administration. The bill, if it is adopted without amendments, seems intended to result in the dismissal of ongoing cases against the telecommunications carriers that participated in the warrantless wiretapping program without allowing a court ever to review whether the program itself was legal. None of us are out to punish the telecommunications carriers, but we worry if anybody is going to be held accountable. As it is now, the bill would have the effect of ensuring that this administration is never called to answer for its actions and never held accountable in a court of law. I do not support a result that says the President of the United States, whomever he or she is, is above the law and, therefore, I would not support the bill unless it is amended.

It is now almost 7 years since this President began efforts to circumvent the law. In violation of the provisions of the governing statute, the Foreign Intelligence Surveillance Act, this President and his administration engaged in a program of warrantless wiretapping. I believe that conduct was illegal. In running its program of warrantless surveillance, the administration relied on ends-oriented legal opinions prepared in secret and shown only to a tiny group of like-minded officials.

Basically, the administration said: This is what we want for legal advice, now give it to us. This is what we want to do to step outside the law; now you go tell us we can do that. As chairman of the Senate Judiciary Committee, of course I oppose that.

A former head of the Justice Department's Office of Legal Counsel described this program as a ``legal mess.'' This administration wants to make sure that no court ever reviews that

legal mess. The bill before us seems to guarantee they get their wish.

As Senator Specter and I have both confirmed during the course of this debate, the administration worked hard to ensure that Congress could not effectively review the legality of the program. Since the existence of this program became known through the press, the Judiciary Committee repeatedly tried to obtain access to the information its members needed to evaluate the administration's legal arguments. Indeed, Senator Specter, when he was chairman of the Judiciary Committee, prepared subpoenas for the telecommunications carriers to obtain information, simply because the administration would not tell us directly what it had done, but those subpoenas were never issued; Vice President Cheney intervened to undercut Senator Specter and prevent the committee from voting on them.

There are public reports that at least one telecommunications carrier refused to comply with the administration's request to cooperate with the warrantless wiretapping. Surely that objection raised a red flag for all involved. It is clear that the administration did not want the Senate to evaluate the evidence and draw its own conclusions. Again, it sought to avoid accountability.

If we look at the publicly available information about the President's program, it becomes clear that title II is designed to tank these lawsuits, pure and simple, and allow for the administration to avoid accountability. The Senate Intelligence Committee said in a report last fall that the providers received letters from the Attorney General stating that the activities had been ``authorized by the President'' and ``determined to be lawful.'' Guess what. These are precisely the ``magic'' words that will retroactively immunize the providers under title II of this bill. So the fix is in. The bill is rigged, based on what we already know, to ensure that the providers get immunity and the cases get dismissed.

So what if Americans' rights were violated. So what if laws were violated. This bill makes the Federal courts the handmaiden to a coverup. That is wrong.

Make no mistake. If title II becomes law, we would take away the only avenue for Americans to seek redress for harms to their privacy and their liberties, and there will likely be no judicial review of this administration's illegal actions. Those who claim that American citizens can still pursue their privacy claims against Government, they know that sovereign immunity is a roadblock. They know that cases against Government have been dismissed for lack of standing. They know about the Government's ability to assert the state secrets doctrine. They know the Michigan case that held the President's warrantless wiretapping program illegal was later vacated on appeal for lack of standing. Indeed, for all of the talk about holding the Government accountable, they have chosen to do nothing to make any case against the Government more viable. This is a red herring if ever there was one. We are telling Americans we are closing the door. We are telling Americans--law-abiding, honest, good, hard-working Americans--that we are closing the courthouse door in their face because we have to protect the President and those around him who may have done something illegal.

Last week, a Federal judge in San Francisco ruled that FISA's provisions trump the state secrets privilege. But that same judge was constrained to hold that plaintiffs still must prove that they are ``aggrieved'' under FISA to maintain standing to sue the Government. It is not at all clear whether these plaintiffs, or any others, can make this showing. Absent congressional action to facilitate judgments on the merits, these cases against the Government are unlikely to survive.

The report of the Senate Committee on Intelligence in connection with its earlier version of the bill that also included retroactive immunity is telling. The committee wrote:

The Committee does not intend for this section to apply to,

or in any way affect, pending or future suits against the

Government as to the legality of the President's program.

And later wrote:

Section 202 makes no assessment about the legality of the

President's program.

But neither that bill nor this one makes any allowance for such suits against the government to proceed to a decision on the merits. That is precisely what is lacking in this measure--an avenue to obtain meaningful judicial review and accountability.

Those who support retroactive immunity for the telecommunications carriers without providing an effective avenue to challenge the program or obtain judicial review of its legality, support unaccountability, pure and simple. I would have supported the efforts of the Government to indemnify the telecommunications carriers if we could substitute the Government to have accountability. I also support alternative efforts by Senator Specter and Senator Whitehouse to substitute the Government in those cases so that the cases could proceed to a judgment on the merits. That would have allowed judicial review and provided for accountability.

The Senate is going to vote on a bill today which does not allow that. All the years I was growing up in Vermont we were told nobody is above the law. All my time in law school we were told nobody is above the law. We take an oath of office when we are sworn into this body where there are only 100 of us to represent 300 million Americans, but we are also told no one is above the law. We are about to vote on a bill that says, well, the President and those people around him are above the law.

Just as Vice President Cheney is not supposed to control the Congress, the administration is not supposed to control the Federal courts. In this democracy of coequal branches in which not even the President is above the law, judicial review is an important mechanism to correct the overreaching and excesses of the Executive. Since the landmark case of Marbury v. Madison, the principle of judicial review has been firmly established. Unfortunately, that principle is being sacrificed to this administration's claim that it, outside of all other administrations in this Nation's history--this administration, the Bush-Cheney administration--should be able to act with absolute impunity and act outside the law.

On the other hand, I believe a Federal court could well find that the limitations this bill, if enacted, would place on the courts' ability to rule on the legality of this program are themselves unconstitutional.

Under the strictest read of the language of the bill, the cases in question will most certainly be dismissed. Attorney General Mukasey must simply certify to the court that the ``alleged'' activity was the subject of a written request from the Attorney General, which indicated that the activity was authorized by the President and ``determined to be lawful.'' This process gives me, and I would hope the Federal courts, pause.

If the judicial review provided by the bill is intended to be meaningful, the only way for that to happen is if the courts, in fact, review the legality of the warrantless wiretapping program. Surely, a court might find that it cannot dismiss an American's claim of a deprivation of rights based on the mere assertion by a party in interest that it told another party that what they were doing was ``determined to be lawful.'' In this setting, in fact, the current Attorney General is not certifying or representing to the court that the warrantless wiretapping program was lawful. All the bill requires is that the Attorney General certify that the phone company acted at the behest of the administration and that the administration ``indicat[ed]'' that the activity was ``determined to be lawful''--by somebody, at some time.

A court might reason that Congress could not have intended for the court to abdicate its judicial review role and become a mere rubber stamp. The court might nevertheless engage in ``meaningful'' judicial review. Wouldn't that be great.

How else, the court might reason, is it to assure itself that the Attorney General's certification is valid and worth affirming as a justification for closing the court house doors to Americans claiming deprivation of their constitutionally guaranteed rights? That is the only way to provide any real meaningful judicial review.

Indeed, the reasoning would go, any other reading would be an unconstitutional rule of decision. See United States v. Klein, 13 Wall. 128 (U.S. 1872). Congress simply does not have authority to tell the courts, a coequal branch,

how it must decide a case. So, in order not to reach that constitutional predicament, the court could interpret the statute to allow it to review the legality of the President's warrantless wiretapping program.

Another recent model for such meaningful review is that of the Court of Appeals for the District of Columbia in the Parhat v. Gates case. There, the appellate court invalidated a Combatant Status Review Tribunal's decision that petitioner Huzaifa Parhat, a member of a Chinese Muslim minority group called Uighurs, was properly designated as an ``enemy combatant.''

Under the restrictive language of the Detainee Treatment Act, the court's review in the Parhat case was expressly limited to consideration whether the status determination of the CSRT was ``consistent with the standards and procedures'' specified by the Secretary of Defense for CSRTs, and whether ``to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.''

The Parhat decision shows that in order to make its review meaningful, the court interpreted its role as reviewing the probity and reliability of the evidence in order to reach its conclusion on the validity of CSRT's designation of Parhat as an ``enemy combatant.'' In so doing the court noted that to do otherwise would be ``perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court.'' It noted that ``[t]o do otherwise would require the courts to rubber-stamp the government's charges'' rather than engage in meaningful judicial review.

I believe that independent judicial review would reject the administration's claims to authority from the Authorization for the Use of Military Force to engage in warrantless wiretapping of Americans in violation of FISA. I believe that the President's claim to an inherent power, a Commander-in-Chief override, derived somewhere from the interstices or penumbra of the Constitution's Article II, would not prevail over the express provisions of FISA.

Indeed, Chairman Rockefeller seemed to concede as much yesterday morning when he asserted that nothing in his bill should be taken to mean ``that Congress believes that the President's program was legal.'' He characterized the administration as having made ``very strained arguments to circumvent existing law in carrying out the President's warrantless surveillance program.''

At various points, Senator Rockefeller alluded to the administration's argument that the Authorization for the Use of Military Force was some sort of statutory override authority and the administration's claim that the President has what Senator Rockefeller called ``his all-purpose powers,'' which I understand to be the administration's argument that inherent authority from Article II of the Constitution creates a commander-in-chief override, and said that these are not justifications for having circumvented FISA.

Consistent with Justice Jackson's now well-accepted analysis in the Youngstown Sheet & Tube case, when the President seeks to act in an area in which Congress has acted and exercised its authority, the President's power is at it ``lowest ebb.'' So I believe that the. President's program of warrantless wiretapping contrary to and in circumvention of FISA will not be upheld based on his claim of some overriding Article II power. I do not believe the President is above the law.

What is most revealing is that the administration has worked so feverishly to subvert any judicial review. That sends a strong signal that the administration has no confidence in its supposed legal analysis or its purported claims to legal authority. If it were confident, the administration would not be raising all manner of technical legal defenses but would work with Congress and the courts to allow a legal test of its contentions and of its actions.

One Federal district judge in Detroit has already declared the President's warrantless wiretapping program to have been unconstitutional. Another in San Francisco just last week cast grave doubt on the legality of the President's warrantless wiretapping program, finding that the exclusivity provisions in FISA left no doubt that operating outside of the statute's framework was unlawful.

I urge the courts to exercise their rightful role to ensure justice is done.

As I have said, I recognize that this legislation also contains important surveillance authorities. I support this new authority, and have worked for years to craft legislation that provides that important authority along with appropriate protections for privacy and civil liberties. The Judiciary Committee reported such a bill last fall. I commend House Majority Leader Hoyer and Senator Rockefeller, who negotiated this legislation, for incorporating several additional protections that bring the bill the Senate previously passed closer to the Judiciary Committee's bill. While I would seek even greater civil liberties protections in Title I, there is no doubt that this bill provides stronger protections than the Senate bill I previously opposed.

I note, in particular, the requirement of an Inspector General review of the President's warrantless wiretapping program. It is a provision I offered and insisted upon when the Judiciary Committee reported its version of the FISA legislation. I had previously sought to add this provision to the Senate Intelligence Committee's bill. This review will provide for a comprehensive examination of the facts of that program and should prove useful to the next President.

I believe still more protections for privacy and civil liberties are necessary, and if this bill becomes law, I will work with the next administration on additional protections.

I should emphasize that while the Inspector General provision serves important purposes, its inclusion in this bill is no substitute for a legal review of the President's warrantless wiretapping program. Federal judges and Inspectors General perform different functions. Inspector General reviews can be very useful for factual review of past actions, and I expect the inspectors general to undertake a probing and comprehensive review. But Inspectors General are not well-suited to determine whether the President's warrantless wiretapping program was legal. In fact, this bill prevents the Inspectors General from engaging in that kind of legal review.

Courts, on the other hand, are well-suited to make these kinds of legal determinations. They do it all the time. Federal judges make conclusions of law every day in this country based on facts found by a jury or, if the right to jury trial is waived, based on their own factual conclusions. But this administration doesn't want this kind of review. It has fought for years to avoid a determination by our courts of the legality--or more precisely the illegality--of the President's program. If the administration gets its wish through passage of this bill, there will likely be no conclusive judgment on the lawfulness of the President's program--ever--and no accountability.

I, therefore, cannot support this legislation without amendment. I do not believe Congress should seek to take away the only viable avenue for Americans to seek redress for harms to their privacy and liberties, and the only viable avenue of accountability for the administration's lawlessness. This administration violated FISA by conducting warrantless surveillance for more than five years. They got caught. The apparent purpose of this bill is to ensure that they will not be held to account. That is wrong. I will vote to support the amendments before us today to bring accountability to this legislation, but I will vote no in opposition to the effort to secure immunity for this administration's illegal activity.

Mr. President, I reserve the remainder of my time.

Madam President, I would like to pay tribute to two outstanding Vermont students, Colin Sandon, of Essex, and David Rolnick, of Rupert. These two high school students both placed in the top 12 finishers in this country's highest precollegiate math competition, the U.S. Mathematical Olympiad, which took place in May. In the 34-year history of the Olympiad, this is the first time any Vermonter has made it this far and this year my state had two students accomplish this incredible achievement.

Colin and David, at the ages of 18 and 16 respectively, have been preparing to compete at this level of mathematical competition their entire educational careers. They have achieved this goal through their own hard work and perseverance, and also through the support of their parents and teachers. David benefited from being home-schooled by his parents. The Vermont State Math Coalition identified Colin in the first grade, and he began tutoring outside of the classroom by engineers and physicists at IBM. Three years ago, he began taking high-level math classes at the University of Vermont.

Both students have also benefited from the dedication of Anthony Trono, who retired from teaching at Burlington High School in 1992, but has played a key role in training Vermont's talented math students. Anthony directs the Governor's Institute in Mathematical Sciences, a week-long residential program for students held every year at the University of Vermont that both Colin and David attended. Anthony also runs the Vermont State Mathematics Coalition Talent Search. He will retire this year and Colin and David's success this year is a testament to the many years he has invested in Vermont's students.

This month, Colin will compete on a six-student team which will represent the U.S. in the 49th annual International Math Olympiad. In the fall, both Colin and David will attend the Massachusetts Institute of Technology. I congratulate them and their families on their accomplishments and I wish

them the best of luck in what I am sure will be bright futures.

Madam President, I ask to have an article from the Burlington Free Press detailing their accomplishments be printed in the Record.

The material follows:

Two Reach Apex in Math Competition, Essex, Rupert Teens Among Nation's

Best

(By Matt Ryan)

Six congruent circles are arranged inside a larger circle

so that each small circle is tangent to two other small

circles and is tangent to the large circle. The radius of the

large circle is 2007 centimeters. Find the radius of the

small circles.

For Colin Sandon of Essex and David Rolnick of Rupert, this

problem was preparation for a series of increasingly

selective math competitions. The two high schoolers placed in

the Top 12--Sandon tied for first place--in the country's

highest pre-collegiate math competition last week. They will

try out in June for a national, six-person math team that

will compete internationally in Madrid.

Sandon, 18, and Rolnick, 16, are the first Vermont students

to place in the Top 12 at the U.S. Mathematical Olympiad in

at least a decade, according to the Mathematical Association

of America. Anthony Trono, who has been training Vermont's

math prodigies since he retired from teaching at Burlington

High School in 1992, said, as far as he knew, they were the

state's first students to accomplish the feat. The Olympiad

began in 1974.

Trono, 80, of Colchester conceived the sample problem above

and provided The Burlington Free Press its solution: 669

centimeters. Four times a year, he mails a sample exam with

eight such problems to Vermont's high schools to test the

waters for up-and-coming whizzes. The problems, like those

found on exams for the American Math Competition, the

American Invitational Math Exam and the Olympiad--the three

tiers of the national math tournament through which Sandon

and Rolnick advanced--involve applications up to pre-

calculus.

``Some of these problems aren't even algebra, it's just

arithmetic, but you gotta use your head to solve them,''

Trono said. ``They usually have to prove something is true,

derive some kind of formula, or solve a very, very complex

problem.''

During the course of the tournament, the field narrowed

from 500,000 students--including some from Canada--to the 500

who competed in the Olympiad.

Students in the competitions generally take the exams at

their high schools. Sandon took his at Essex High School and

Rolnick, who is homeschooled, took his at Middlebury College.

Students were allotted 4 1/2 hours on two consecutive days to

complete the Olympiad's six problems. The highest scorer,

Sandon, a senior, and Rolnick, a junior, have been accepted

to and plan to enroll at the Massachusetts Institute of

Technology in the fall.

``I'm kind of nervous, because I've never been away from

home for more than a month, and MIT will be my home for the

next four years,'' Sandon said. ``On the other hand, I'll get

to meet new people there and take more challenging classes.''

Sandon has sought more challenging classes since elementary

school.

The Vermont State Math Coalition discovered Sandon when he

was in first grade. Engineers and physicists from IBM tutored

the boy for the next few years, as his capacity for math

exceeded that of his teachers. He finished pre-calculus in

sixth grade, and began taking courses at the University of

Vermont three years ago. His course load includes calculus

III, linear algebra, graph theory and number theory.

His goal was to crack the Top 12 in the Olympiad.

``I felt like I had done pretty well, but I didn't think I

had done that well,'' Sandon said.

His parents, Peter and Maureen Sandon, an engineer at IBM

and a retired home economics teacher, respectively, said the

announcement surprised them, too.

``We had a message on our answering machine,'' Maureen

Sandon said. ``I said, `Wait a minute, what did this message

say?' I must have replayed it three times.''

Peter Sandon said his son left him behind ``quite a while

ago'' in math.

``I used to play chess with him, too, and I used to be able

to beat him,'' Peter Sandon said. ``And now I can't.''

Colin Sandon said he enjoys strategy games, and also likes

to read science fiction and fantasy.

The renaissance man

Rolnick said he also enjoys strategy games--as well as

hiking; tennis; word play; reading; writing; talking;

listening to classical composers, such as Bach, Beethoven,

Haydn, Schubert and Tchaikovsky; and studying moths.

Tiny white moths are boring, Rolnick said. He prefers the

variety of larger moths with scarlets, violets, yellows,

greens, silvers and golds.

``I have had the fortune to grow up in a household with

parents who did not cause me to be afraid of insects,''

Rolnick said. He blasted the ``societal prejudice against

insects'' that assumes all bugs ``bite, sting or eat

furniture.''

Rolnick sees beauty in moths and math.

``Geometry I find easier to talk about,'' Rolnick said. ``I

love the way that things that are true, really are true.''

``If you have a triangle, and you join the vertices to the

midpoints of the opposite side, you come up with three lines.

Those lines will come to a point--those three lines will

always meet--and I find that very beautiful.''

Problem solving becomes increasingly important as students

advance through the competitions, Rolnick said.

``For all the problems, there is a certain amount of

thinking and puzzling that is absolutely necessary,'' Rolnick

said.

``It is absolutely hard,'' he said of the Olympiad. ``It is

meant to be hard, even for professional mathematicians.''

Trono retires

Sandon and Rolnick attended the Governor's Institute in

Mathematical Sciences, a week-long residential program for

students held at UVM during the summer.

Trono has directed the institute and run the Vermont State

Mathematics Coalition Talent Search--for which he mails high

schools his sample exams--since the early 1990s. He said he

will retire from the institute this year.

``This has been a terrific year for me to go out,'' Trono

said.

He said he has 10,000 ``super, very good problems''--those

that did not make the cut for previous sample exams--to give

his successors a head start.

Mr. President, I would like to speak for a little while about one part of the bill, and I will have more to say tomorrow. I strongly oppose the blanket grant of immunity that is contained in this bill. I would hope Senators would reject what is an ill-advised legislative effort to engineer specific outcomes in ongoing Federal judicial proceedings. Basically, we are telling another branch of Government: Here is the way you have to come out in your decisions.

There is a way to cure that problem. Instead of the Congress telling the courts how they have to rule, we could adopt the Dodd-Feingold- Leahy amendment to strike title II from the bill. This would strike the retroactive immunity provisions, and it would allow for accountability for those who violated Americans' rights and violated the law. It would send a strong message that no one stands above the law in the United States.

I am not out to get the telephone companies. I just want us to know who it was in the administration who said: You may break the law. The American people ought to know who in the White House said, ``You may break the law,'' who it was who made the decision that somehow this President stands above the law.

The administration circumvented the law by conducting warrantless surveillance of Americans for more than 5 years. They were breaking the law, and then they got caught. The press reported this illegal conduct in late 2005. The Republican-controlled Congress did not ask the questions to find it out. The press found it out. Had they not done so, I have to assume this unlawful surveillance would still be going on today.

When the public found out that the Government had been spying on the American people outside of FISA for years, the Government and the providers were sued by citizens who believed their privacy rights were violated. They said: You are violating our privacy. We want you to be held accountable. But, of course, that is why the Founders created a system of Federal courts through the Constitution--so people can assert their rights before a fair and neutral tribunal without interference from the other branches of Government, so they have some way to say: I am not a Democrat. I am not a Republican. I am not rich. I am not poor. I am an American. I am seeking to have my rights upheld.

Title II of this bill would effectively terminate these lawsuits and those rights. It seeks to reduce the role of the court to a rubber stamp. So long as the Attorney General certifies that the Government requested the surveillance and indicated that it had been ``determined to be lawful,'' the cases will be dismissed and everybody is off the hook. It is not the court that says whether you followed the law. No, this bill allows the government to say: Oh, you are looking at us? Ah, we certify we followed the law. So, therefore, you courts have to let us off the hook because, after all, we said, whether we broke the law or not, we are following the law, so we are home free.

That is not a meaningful judicial inquiry. Thinking back to my days as a prosecutor in Vermont, that would be as if the police caught someone in a burglary, I charged them, and the defendant then told the judge: But I have determined that for me, your Honor, the burglary laws do not apply, so you have to let me go. I can't be prosecuted. I can't be held accountable. Nobody would take that seriously. We should not take this seriously. We should not do something that does not give the plaintiffs their day in court. It is not just a heavy thumb on the scales of justice; it is a whole hand and an arm on the scales of justice, and I cannot support it.

If we look at the publicly available information about the President's program, it becomes clear that title II is designed to tank these lawsuits, pure and simple, but then to allow the administration to avoid any accountability for their actions. The Senate Intelligence Committee said in a report last fall that the providers received letters from the Attorney General stating that the activities had been ``authorized by the President'' and ``determined to be lawful.''

Guess what. These are precisely the ``magic'' words that will retroactively immunize the providers under title II of this bill. Mr. President, the fix is in. The bill is rigged, based on what we already know, to ensure that the providers get immunity and the cases get dismissed.

What it says is, if you are in charge, you can just go out and break the law, and then when they look at you, send a letter to the court saying: I have determined that when I broke the law, I did not really break the law, so you have to let me off the hook.

Lewis Carroll once wrote a book about that. I think it was called ``Alice in Wonderland.'' So what if Americans' rights were violated. So what if statutes were violated. So what if those privacy-protecting statutes provide for damages. This bill makes our courts the handmaidens to a coverup, and it is wrong. It tells the courts--the U.S. Federal courts--it tells them: Take part in a coverup. I cannot support something that does that. It is wrong.

Make no mistake, if title II becomes law, there will be no accountability for this administration's actions in a court of law. We would take away the only viable avenue for Americans to seek redress for harms to their privacy and liberties.

Those who claim that American citizens can still pursue their privacy claims against the Government know that sovereign immunity is a roadblock. They know that cases against the Government have already been dismissed for lack of standing. They know about the Government's ability to assert the state secrets doctrine and various other legal defenses and protections for Government officials. They know these suits will go nowhere. They know, and it is wrong for them to suggest otherwise. This is a red herring if there ever was one.

The report of the Select Committee on Intelligence in connection with its earlier version of the bill that also included retroactive immunity is telling. The Select Committee on Intelligence wrote:

The Committee does not intend for this section to apply to,

or in any way affect, pending or future suits against the

Government as to the legality of the President's program.

And later wrote:

Section 202 makes no assessment about the legality of the

President's program.

But neither that bill nor this one makes any allowance for such suits against the Government to proceed to a decision on its merits. That is precisely what is lacking in this measure: an avenue to obtain judicial review and accountability.

Now, those who support retroactive immunity for the telecommunications carriers and dismissal of the suits against them without providing an effective avenue to challenge the program or obtain judicial review of its legality--well, what they are doing is supporting unaccountability, pure and simple. They are saying: Everybody is off the hook. I am not out to get the telephone companies. All I want to know is, who in our Government said: You may break the law. And this bill is going to make sure we never find out.

In fact, the case that did proceed to decision in the Federal court in Michigan was appealed by the Government, was vacated and dismissed for lack of ``standing.'' So the judicial decision on the merits that the President's program of warrantless wiretapping of Americans was a violation of law and the Constitution was effectively wiped from the books.

I note again that the proponents of this retroactive immunity have not and cannot say that the administration acted lawfully. They do not say the administration acted lawfully because they know the administration did not act lawfully.

Even if one believes the telephone companies merit protection, there is simply no good reason why Congress must act now to deal with the issue of the ongoing lawsuits against providers. The claim that these lawsuits will somehow ``bankrupt'' the providers is belied by the record demonstrating the financial health of these companies today despite the ongoing litigation.

Even the most alarmist critics of the lawsuits acknowledge it would be years

and probably at least two trips to the U.S. Supreme Court before we have any enforceable final judgments.

If there is such a risk, well, what does that say? It says there were violations and that people's rights were violated. Now, I have said before that I would support the Government stepping into the shoes of these defendants, of these telephone companies, if we want to protect them. It is simple. If you are that concerned about the telephone companies, exclude them. Substitute the U.S. Government. But we should not protect them if the cost of protecting them is all accountability and the cost of never getting a judicial determination on the merits of the cases whether the Government violated the law.

Americans have a right to know.

Mr. President, I ask unanimous consent for an additional 30 seconds.

I believe the rule of law is important. I trust our courts to handle even the most difficult and sensitive disputes. That is the courts' role in our constitutional scheme, not ours. Title II of this bill would have Congress decide these cases by legislative fiat.

We do not want to diminish our Federal judiciary and risk selling out large numbers of Americans whose fundamental rights may have been violated. We should not pass this bill unamended. I urge my colleagues to cast a vote for accountability and support the Dodd-Feingold-Leahy amendment.

I strongly oppose the immunity provisions contained in this bill, and I have supported every effort to strike them. But if we cannot eliminate these ill-advised provisions, then I agree that Senator Bingaman's amendment to delay a decision on immunity until after the inspectors general have conducted their review of the warrantless surveillance program makes good sense.

I worked hard to include the inspectors general amendment as a part of this FISA bill. For that provision to have its full effect, we should delay any grant of retroactive immunity until we know what the final report says.

Senator Bingaman's amendment would stay all pending cases against the telecom companies related to the warrantless surveillance program and delay the effective date of the immunity provisions in title II of the bill until 90 days after Congress receives the inspectors general reports.

I have maintained throughout this debate that it makes little sense for Senators--many who have never been given the opportunity to view key documents relevant to the warrantless surveillance program--to cast an uninformed vote on retroactive immunity. That is buying a pig in a poke. To mix farm metaphors, the Bingaman amendment puts the horse back in front of the cart.

First, let's get the facts. And then, only after reviewing the relevant facts that the administration claims support granting retroactive immunity, determine whether Congress should attempt to legislatively determine the result of the 40 or so Federal cases alleging violations of fundamental rights of Americans.

Again, I believe the retroactive immunity provisions in this bill should be stripped entirely. But if that cannot be accomplished, then I support Senator Bingaman's amendment as a commonsense way to ensure that the Senate makes a fully informed decision on retroactive immunity.

I yield the floor.

Mr. President, I strongly oppose a blanket grant of immunity. I also urge Senators to reject this ill-advised legislative effort to engineer a specific outcome in ongoing Federal judicial proceedings. No one should stand above the law in the United States.

The administration circumvented the law by conducting warrantless surveillance of Americans for more than 5 years. They got caught. The press reported this illegal conduct in late 2005. Had the media not done so, this unlawful surveillance may still be going on today.

When the public found out that the Government had been spying on the American people outside of FISA for years, the Government and the providers were sued by citizens who believed that their privacy rights were violated. That is why we have Federal courts--so people can vindicate their rights before a fair and neutral tribunal, without interference from the other branches of government.

Title II of this bill is apparently designed to terminate these lawsuits. It seems to reduce the role of the court to a rubber stamp. So long as the Attorney General will certify that the Government requested the surveillance and indicated that it had been ``determined to be lawful,'' the cases are to be dismissed and everybody is off the hook. That is not a meaningful judicial inquiry. That doesn't give the plaintiffs their day in court. It is not just a heavy thumb but a whole hand and arm on the scales of justice, and I cannot support it.

Here is what the report of the Select Committee on Intelligence said in connection with reporting its earlier version of retroactive immunity:

The Committee has reviewed all of the relevant

correspondence. The letters were provided to electronic

communications service providers at regular intervals. All of

the letters stated that the activities had been authorized by

the President. All of the letters also stated that the

activities had been determined to be lawful by the Attorney

General, except for one letter that covered a period of less

than sixty days. That letter, which like all the others

stated that the activities had been authorized by the

President, stated that the activities had been determined to

be lawful by the Counsel to the President.

So if anyone had any doubt where the criteria in the bill come from, there it is. Do those words seem familiar? Do the criteria carefully worded for inclusion in the bill now make sense?

I expect that the American people remember the testimony before the Judiciary Committee of James Comey and FBI Director Mueller about the period of time when Attorney General Ashcroft was in the hospital, senior advisers at the Justice Department had advised against extending approval for the warrantless wiretapping program and the Counsel to the President, Alberto Gonzales, went to John Ashcroft's hospital room seeking to get Attorney General Ashcroft to override the acting Attorney General's concerns. Some time thereafter, the program was apparently adjusted in some way, but only after FBI Director Mueller spoke to the President and several high-ranking officers threatened to quit the administration. That period could account for the Select Committee on Intelligence's reference to a letter and period of less than 60 days when it was the Counsel to the President who had ``determined'' the activities ``to be lawful.''

Senator Specter has long said that he supported judicial review of the legality of the President's warrantless wiretapping program. During the last Congress, when he chaired the Judiciary Committee, he introduced a bill that would have allowed the courts to review the legality of the administration's warrantless surveillance program. Unfortunately, he later modified the bill in his discussions with the White House that made it unacceptable and ineffective in my view and it was never passed. I have always supported allowing the courts the opportunity to review the legality of those activities.

I believe that independent judicial review will reject the administration's claims to authority from the Authorization for the Use of Military Force that overrides FISA. I believe that the President's claim to an inherent power, a Commander-in-Chief override, derived somewhere from the interstices or penumbra of the Constitution's article II will not prevail over the express provisions of FISA.

Indeed, Chairman Rockefeller seemed to concede as much this morning when he asserted that nothing in his bill should be taken to mean ``that Congress believes that the President's program was legal.'' He characterized the administration as having made ``very strained arguments to circumvent existing law in carrying out the President's warrantless surveillance program.'' At various points Senator Rockefeller alluded to the administration's argument that the Authorization for the Use of Military Force was some sort of statutory override authority and the administration's claim that the President has what Senator Rockefeller called ``his all-purpose powers,'' which I understand to be the administration's argument that inherent authority from article II of the Constitution creates a Commander-in-Chief override, and said that these are not justifications for having circumvented FISA.

Consistent with Justice Jackson's now well-accepted analysis in the Youngstown Sheet & Tube case, when the President seeks to act in an area in which Congress has acted and exercised its authority, the President's power is at its ``lowest ebb.'' So I believe that the President's program of warrantless wiretapping contrary to and in circumvention of FISA will not be upheld based on his claim of some overriding article II power. I do not believe the President is above the law.

What is most revealing is that the administration has worked so feverishly to subvert any such independent judicial review. That sends a strong signal that the administration has no confidence in its supposed legal analysis or its purported claims to legal authority. If it were confident, the administration would not be raising all manner of technical legal defenses but would work with Congress and the courts to allow a legal test of its contentions and the legality or illegality of its actions.

This amendment now offered by Senator Specter is more limited than I would have liked. It says its purpose is to allow the courts to review the constitutionality of the assistance provided by the electronic communication services in connection with the program. Exactly how the courts get to such a review is not clear. Although I do not believe that this expressly allows the court to conduct the kind of comprehensive judicial review required to make a real determination about the legality of this program, and a fair decision about the merit of these lawsuits, it nevertheless seeks in spirit to provide judicial review. In the hope that it might provide an avenue to accountability for the illegal actions of this administration, I will support it.

In so doing I should note that I do not believe that Congress can take away the authority of the Federal courts to consider unconstitutionality or illegality in the course of meaningful judicial review. Senator Rockefeller emphasized this morning that the parties to the ongoing cases are to be ensured ``their day in court'' and that they are ``provided the opportunity to brief the legal and constitutional issues before the court.'' These statements do not have meaning unless the legal issues and constitutional issues presented by these cases can be considered. The value of the Specter amendment lies in making the issue of constitutionality explicit.