Floor Statements

Mr. President, we end the 2007 legislative session as we began it, by making significant progress confirming the President's nominations for lifetime appointments to the Federal bench. At the Judiciary Committee's first business meeting of the year, held less than 2 weeks after the Republican caucus agreed to the resolutions organizing the Senate, I included on our agenda five judicial nominations. On January 30, the Senate confirmed the first two judicial nominations of the session. Today's confirmation of John Daniel Tinder to the Court of Appeals for the Seventh Circuit will be the 40th, including 6 of this President's nominations to powerful circuit courts.

I thank the members of the Judiciary Committee for their hard work all year in considering these important nominations. I thank especially those Senators who have given generously of their time to chair confirmation hearings throughout the year.

Given the work of the Senators serving on the Judiciary Committee, we will have exceeded the yearly total in each of the last 3 years when a Republican majority managed the Senate and the consideration of this Republican President's nominations. Indeed, with the confirmation today of Judge Tinder to replace Judge Daniel A. Manion, like that of Reed O'Connor who was confirmed last month to the Northern District, we are proceeding to fill vacancies before they even arise.

The progress we have made this year in considering and confirming judicial nominations is sometimes lost amid the partisan sniping over a handful of controversial nominations and attempts to appeal to some on the far right wing. When we confirm the nomination we consider today, the Senate will have confirmed 40 nominations for lifetime appointments to the Federal bench this session alone. That is more than the total number of judicial nominations that a Republican-led Senate confirmed in all of 1996, 1997, 1999, 2000, 2004, 2005 or 2006. It is 23 more confirmations than were achieved during the entire 1996 session, more than double that session's total of 17, when Republicans stalled consideration of President Clinton's nominations. It is seven more than the confirmations in the second to last year of President Clinton's final term.

We continue to make progress on circuit court nominations. We began the year by resolving an unnecessary controversy over Judge Norman Randy Smith's nomination to one of California's seats on the Ninth Circuit. That nomination could easily have been confirmed--and a judicial emergency addressed--in the last Congress had the Bush administration chosen the commonsense approach of nominating Judge Smith, who is from Idaho, to Idaho's seat on the Ninth Circuit. After many months of urging by me and others, President Bush finally did the right thing at the beginning of this Congress by pulling the controversial Myers nomination to Idaho's Ninth Circuit seat and nominating Judge Smith, instead. He was confirmed in February. We could make even more progress if the President would make a California nomination to fill the long-vacant California Ninth Circuit seat left open by Judge Stephen Trott's retirement.

We continued through the year to consider and confirm district and circuit court judges. In October, the Senate confirmed the nominations of Judges Jennifer Walker Elrod and Judge Leslie Southwick, who became the fourth and fifth circuit court nominees confirmed this year.

After this confirmation today, the Senate will have confirmed six circuit court nominees, matching the total circuit court confirmations for all of 2001. We will also have exceeded the circuit court totals achieved in all of 2004 when a Republican-led Senate was considering this President's circuit

nominees; all of 1989; all of 1983, when a Republican-led Senate was considering President Reagan's nominees; all of 1993 when a Democratic- led Senate was considering President Clinton's nominees; and, of course, the entire 1996 session during which a Republican-led Senate did not confirm a single one of President Clinton's circuit nominees the entire session.

The treatment of President Clinton's nominees contrasts harshly with the treatment Democrats gave the circuit court nominees of Presidents Reagan and Bush in the Presidential election years of 1988 and 1992. In those two election years, the Democratic-controlled Senate averaged nine circuit court confirmations. Regrettably, the Republican Senate reversed that course in the treatment of President Clinton's circuit court nominations, confirming an average of only four in the Presidential election years of 1996 and 2000, and none in the entire 1996 session.

At the end of the 106th Congress, the last 2 years of the Clinton administration, the Republican-led Senate returned to the President without action 17 of his appellate court nominees. I have not duplicated that record and I do not intend to, any more than I intend to see the Senate pocket filibuster more than 60 of President Bush's judicial nominees, as Republicans did with President Clinton's.

It is a little known fact that during the Bush Presidency, more circuit judges, more district judges--more total judges--were confirmed in the first 24 months that I served as Judiciary chairman than during the 2-year tenures of either of the two Republican chairmen working with Republican Senate majorities.

I continue to try to find ways to make progress. Last month, I sent the President a letter urging him to work with me, Senator Specter, and home State Senators to send us more well-qualified, consensus nominations. Now is the time for him to send us more nominations that could be considered and confirmed as his Presidency approaches its last year, before the Thurmond Rule kicks in.

As I noted in that letter, I have been concerned that several recent nominations seem to be part of an effort to pick political fights rather than judges to fill vacancies. For example, President Bush nominated Duncan Getchell to one of Virginia's Fourth Circuit vacancies over the objections of Senators Warner and Webb, one a Republican and one a Democrat.

They had submitted a list of five recommended nominations, and specifically warned the White House not to nominate Mr. Getchell. As a result, this nomination that is opposed by Democratic and Republican home-state Senators is one that cannot move.

The Administrative Office of the U.S. Courts will list 43 judicial vacancies and 14 circuit court vacancies after today's confirmations. Compare that to the numbers at the end of the 109th Congress, when the total vacancies under a Republican controlled Judiciary Committee were 51 judicial vacancies and 15 circuit court vacancies. That means that despite the additional 5 vacancies that arose at the beginning of the 110th Congress, the current vacancy totals under my chairmanship of the Judiciary Committee are below where they were under a Republican led- Judiciary Committee.

The President has sent us 27 nominations for these remaining vacancies. Sixteen of these vacancies--more than one third--have no nominee. Of the 17 vacancies deemed by the Administrative Office to be judicial emergencies, the President has yet to send us nominees for 7, nearly half of them. If the President would decide to work with the Senators from Michigan, Rhode Island, Maryland, California, New Jersey, and Virginia, we could be in position to make even more progress.

Of the 16 vacancies without any nominee, the President has violated the timeline he set for himself at least 11 times--11 have been vacant without so much as a nominee for more than 180 days. The number of violations may in fact be much higher since the President said he would nominate within 180 days of receiving notice that there would be a vacancy or intended retirement rather than from the vacancy itself. We conservatively estimate that he also violated his own rule 15 times in connection with the nominations he has made. That would mean that with respect to the 43 vacancies, the President is out of compliance with his own rule more than half of the time.

We have succeeded in dramatically lowering vacancies and, in particular, circuit court vacancies. We have helped cut the circuit vacancies from a high water mark of 32 in the early days of this administration to as low as 13 this year. Contrast that with the Republican-led Senate's lack of action on President Clinton's moderate and qualified nominees that resulted in increasing circuit vacancies during the Clinton years from 17 when he was inaugurated to 26 at the end of his term. During those years, the Republican-led Senate engaged in strenuous and successful efforts under the radar to keep circuit judgeships vacant in anticipation of a Republican President. More than 60 percent of current circuit court judges were appointed by Republican Presidents, with the current President having appointed more than 30 percent of the active circuit judges already.

The American people expect the Federal courts to be fair forums where justice is dispensed without favor to the right or the left. I have set out since the beginning of this Congress to do all that I can to ensure that the Federal judiciary remains independent and able to provide justice to all Americans. These are the only lifetime appointments in our entire government, and they matter. I will continue in the 2008 session to work with Senators from both sides of the aisle as I have in the 2007 session.

John Daniel Tinder has a decade of service as a District Court Judge for the Southern District of Indiana. Before his tenure on the bench, he worked for 7 years at the Justice Department as U.S. Attorney and Assistant U.S. Attorney for the Southern District of Indiana. He has worked in private practice and has experience as a county prosecutor and county public defender. His nomination has the support of both home State Senators. I acknowledge the support of Senators Lugar and Bayh, and want to thank Senator Durbin for chairing the hearing on this nomination.

While I support Judge Tinder's confirmation, I am concerned about his answer to a question I sent him on the legal significance of Presidential signing statements. I asked Judge Tinder if an alleged violation of the law prohibiting cruel, inhuman, and degrading conduct by American personnel were to come before a court, would it be appropriate for that court to consider the President's signing statement as legislative history, in addition to the text of law itself. I am troubled by Judge Tinder's answer that he is open to looking at signing statements as a tool for determining the meaning of a statute.

Throughout the country's history, Presidents used signing statements for limited purposes, such as explaining to the public the likely effects of legislation or providing direction to administrative agencies within the Executive Branch. It has long been considered out of bounds for any President to use signing statements--which are at most post-passage remarks--for the more expansive and controversial purpose of creating legislative history that our courts would be expected to follow. Legislative history is created within the Congress, which is charged by the Constitution with considering and passing laws. The President may veto legislation, but the constitutional system of checks and balances does not allow the President to speak for Congress.

The Nation stands at a pivotal moment in history, where Americans are faced with a President who makes sweeping claims for almost unchecked Executive power. This President has used signing statements to challenge laws banning torture, laws on affirmative action, and laws that prohibit the censorship of scientific data. When the President uses signing statements to unilaterally rewrite laws enacted by Congress, he undermines the rule of law and our constitutional checks and balances. It is incumbent upon the Federal judiciary, to safeguard and protect the constitutional balance when necessary.

I hope that Judge Tinder will fulfill his oath and be an independent buffer against constitutional overreaching. I congratulate the nominee and his family on his confirmation today.

Mr. President, with this nomination, I note we have confirmed more in this session of the Senate--of President Bush's judges--than the total number of judicial nominations the Republicans confirmed in all of 1996, 1997, 1999, 2000, 2004, 2005, and 2006. I thought I would mention that.

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

Mr. President, I would like to take a moment, along with the distinguished Senator from Utah, a longstanding member of the Judiciary Committee and a consistent partner of mine on intellectual property issues, to discuss S. 1145, the Patent Reform Act of 2007.

First, I want to express my appreciation for my colleague's efforts in working to ensure that our patent laws are modernized. We first cosponsored patent reform last Congress. We again jointly introduced comprehensive patent reform this Congress in the form of S. 1145 in April of this year. Both bills had their foundations in numerous hearings with the testimony of dozens of witnesses and in innumerable meetings with the myriad of interested participants in the patent system. The message we heard repeatedly was of the urgent need to modernize our patent laws. The leaders of the House Judiciary Committee also heeded that call to legislate, and working with them, we introduced identical, bipartisan bills. H.R. 1908 was introduced the very same day that we introduced the Senate bill.

In July, after several extensive and substantive markup sessions, the Senate Judiciary Committee reported S. 1145 favorably and on a clear and strong bipartisan vote. In the course of

our committee deliberations, a great many changes were made to improve and perfect the bill. These improvements included changes on the key issues of enhancing patent quality, clarifying rules on infringement and compensation of inventors, and improving the ability of the Patent and Trademark Office to do its job well.

I agree with my distinguished colleague that now is the time to enact patent reform, and we are in good company in that belief. Our leadership has committed to taking up S. 1145 as early in the new year as possible, and we commend that commitment. I fully recognize that when the bill was reported by the Judiciary Committee, a number of members expressed a strong view that the bill should be further perfected before it comes to a vote on the floor of the Senate. I made a commitment to the members of the Judiciary Committee at the markup that I would work closely with each of them, and other Members of the Senate, to make further improvements in the bill. I reaffirm that commitment.

As you and I have discussed, successful enactment of patent reform requires the input of all Senators. Over the past months, since the committee reported the bill, I have had numerous meetings with both members and affected interests. I know you have too. My staff has had literally hundreds of meetings and discussions about this legislation. In the course of those meetings, it has become clear to me that several issues are on the minds of most people: ensuring compensation for infringement is fair and adequate; clarifying rules on venue; and improving the ability of parties to challenge the validity of granted patents through administrative processes.

Over the course of early January, I invite you and our colleagues to work with me to find viable solutions. It is my intention to seek and hear the views of any and all parties and to include all interested staff and Senators. This will continue to be an open and deliberative process, with the goal of favorable Senate action as early as the floor schedule permits. I am committed to a strong and effective balanced bill. I know there are some out there who would rather see us do nothing and leave the systems now in place or merely codify current jurisprudence. I believe that following this course would be shirking our responsibility to ensuring the economic strength of our country that is built on inventiveness.

Mr. President, I have had the privilege of attending performances by the Eagles, and I have enjoyed a long friendship with Don Henley and the members of the band.

I talked with Don recently about their new double-disc set ``Long Road Out of Eden'' and how they came about making it. We also talked about the last impromptu performance of the Eagles I attended, which was at Camp David at a farewell party for President Bill Clinton, who was leaving office within 48 hours. As always, they were superb.

I have listened so many times to their music while traveling, at my home in Vermont, and in my office, and I thought my colleagues may benefit from the transcript of an interview Don Henley recently had with CNN. I ask unanimous consent that it be printed in the Record.

Mr. Presdient, today, Senator Hatch and I are, once again, introducing important intellectual property legislation together. We are introducing the Performance Rights Act of 2007 for a very simple and clear reason: artists should be compensated fairly for the use of their work.

I am an avid music fan. Music entertains, enlightens, and inspires us. Much of the music enjoyed by most Americans, including myself, was first heard on traditional, over-the-air radio. There is no question that radio play promotes artists and their sound recordings; there is also no doubt that radio stations profit directly from playing the artists' recordings.

When radio stations broadcast music, listeners are enjoying the intellectual property of two creative artists the songwriter and the performer. The success, and the artistic quality, of any recorded song depends on both. Radio stations pay songwriters for a license to broadcast the music they have composed. That is proper, and that is fair. The songwriters' work is promoted by the air play, but no one seriously questions that the songwriter should be paid for the use of his or her work.

But the performing artist is not paid by the radio station. The time has come to end this inequity. Its historical justification has been overtaken by technological change; the economics of the radio industry of years past has been superseded by entirely new business models. Webcasters compensate performing artists, satellite radio compensates performing artists, and cable companies compensate performing artists; only terrestrial broadcasters still do not pay for the use of sound recordings. Artists should have the same rights regardless of whether it is a terrestrial broadcaster or a webcaster using and profiting from their work. Radio play may have promotional value to the artist, but there

is a property right in the sound recording, and those that create the content should be compensated for its use.

In ensuring artists are compensated, two other principles important to me are reflected in this legislation. First, noncommercial and small commercial radio stations should be nurtured, and not threatened by a change in the law. Second, songwriters, who now are, as they should be, paid for use of their work should not have their rights diminished in any way.

The legislation we introduce today on a bipartisan basis, along with companion bipartisan legislation being introduced today in the House of Representatives, provides that artists will be compensated by broadcasters for the use of their work. Noncommercial stations--from Vermont Public Radio which broadcasts ``Saturday Afternoon at the Opera,'' to the campus radio station at St. Michael's college that plays ``Those Monday Blues'' and ``The Odds and Evens Jazz Show''--have a different mission than commercial stations, and therefore need a different status, one that will subject the stations only to a nominal flat fee for use of sound recordings. Commercial radio stations that have a revenue under $1.25 million, which comprises roughly three- fourths of all music radio stations, will also have a flat fee option.

Traditional, over-the-air radio remains vital to the vibrancy of our music culture, and I want to continue to see it prosper as it transitions to digital. But I also want to ensure that the performing artist the one whose sound recordings drive the success of broadcast radio is fairly compensated.

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

Mr. President, I am pleased to introduce a bill that will help will build upon our efforts to improve the Bulletproof Vest Partnership Grant Act, which has had so much success in protecting the lives of law enforcement officers across the country. The bill introduced today provides a need-based waiver of matching requirements that will aid State and local law enforcement agencies in financial hardship purchase body armor for their officers. I thank Senators Clinton, Mikulski, Shelby, and Landrieu for joining me to introduce this bill to give our law enforcement officers the protection they need.

I was proud to work with Senator Ben Nighthorse Campbell to author the Bulletproof Vest Partnership Grant Act of 1998, which responded to the tragic Carl Drega shootout in 1997 on the Vermont-New Hampshire border when two state troopers who did not have bulletproof vests were killed. The Federal officers who responded to the scenes of the shooting spree were equipped with life-saving body armor, but the State and local law enforcement officers lacked protective vests because of the cost. Since its inception in 1999, I have worked to reauthorize this program three times, most recently in the 2005 Violence Against Women and Department of Justice Reauthorization bill.

Since 1999, the BVP program has provided $173 million to purchase an estimated 500,000 vests in more than 11,500 jurisdictions nationwide. Vermont has received more than $600,000 in bulletproof vest funding under this program, which has been used to purchase 2700 vests statewide.

I want to thank Senators Mikulski and Shelby for continuing to recognize this program as a priority. As Chair and Ranking Member of the Appropriations Subcommittee that finalizes Justice Department spending priorities, they saw fit to include more than $25 million for the Bulletproof Vest Program in the fiscal year 2008 Consolidated Omnibus Appropriations bill.

Bulletproof vests remain one of the foremost defenses for our uniformed officers, but law enforcement agencies nationwide are struggling over how to find the funds necessary to replace either aged vests, which have a life expectancy of roughly 5 years, or purchase new vests for newly hired officers. We want to ensure that our law enforcement officers are outfitted with vests that will actually stop bullets and save lives. Vests cost between $500 and $1,000 each, depending on the style. Officers are being forced to dip into their own pockets to pay for new vests due to local and State agency budget shortfalls, and will continue to do so unless the Federal Government offers more help.

The bill we introduce today will give discretion to the Director of the Bureau of Justice Assistance within the Justice Department to grant waivers or reductions in the match requirements for bulletproof vests awards to State and local law enforcement agencies that can demonstrate fiscal hardship. Our local law enforcement agencies are constantly responding to new challenges, from fighting a recent rise in violent crime to responding to threats of terrorism, and many localities lack the resources to effectively combat these challenges. Waiving the match requirement for life-saving body armor should be available for police agencies like those in New Orleans, on the Gulf Coast, or in other areas that experience disasters or other circumstances that create fiscal hardships.

A tragic event in Tennessee in 2005 highlights the need for this legislation. Wayne ``Cotton'' Morgan, a Tennessee correctional officer was gunned down on August 9, 2005, outside the Kingston Court House by the wife of an inmate being escorted by Officer Morgan. He was killed, and the prisoner and his wife escaped. Officer Morgan was not wearing a bulletproof vest, although he repeatedly requested one from the warden at Brushy Mountain Prison. The Tennessee Department of Corrections Administrative Policies and Procedures memorandum required that fitted vests be provided to individuals assigned to transportation duties. Despite this requirement and Officer Morgan's repeated requests, he was not issued a vest due to lack of funding. This legislation will help ensure that no officer is left without a bulletproof vest for lack of resources in his or her department.

Our law enforcement officers deserve the fundamental protection that bulletproof vests can provide. Few things mean more to me than when I meet Vermont police officers and they tell me that the protective vests they wear were made possible because of the Bulletproof Vests Partnership Program. This is the least we should do for the officers on the front lines who put themselves in danger for us every day. I want to make sure that every police officer who needs a bulletproof vest gets one.

I look forward to working with the Senate to pass this bipartisan bill to better to protect our law enforcement officers.

Mr. Presdient, today, Senator Hatch and I are, once again, introducing important intellectual property legislation together. We are introducing the Performance Rights Act of 2007 for a very simple and clear reason: artists should be compensated fairly for the use of their work.

I am an avid music fan. Music entertains, enlightens, and inspires us. Much of the music enjoyed by most Americans, including myself, was first heard on traditional, over-the-air radio. There is no question that radio play promotes artists and their sound recordings; there is also no doubt that radio stations profit directly from playing the artists' recordings.

When radio stations broadcast music, listeners are enjoying the intellectual property of two creative artists the songwriter and the performer. The success, and the artistic quality, of any recorded song depends on both. Radio stations pay songwriters for a license to broadcast the music they have composed. That is proper, and that is fair. The songwriters' work is promoted by the air play, but no one seriously questions that the songwriter should be paid for the use of his or her work.

But the performing artist is not paid by the radio station. The time has come to end this inequity. Its historical justification has been overtaken by technological change; the economics of the radio industry of years past has been superseded by entirely new business models. Webcasters compensate performing artists, satellite radio compensates performing artists, and cable companies compensate performing artists; only terrestrial broadcasters still do not pay for the use of sound recordings. Artists should have the same rights regardless of whether it is a terrestrial broadcaster or a webcaster using and profiting from their work. Radio play may have promotional value to the artist, but there

is a property right in the sound recording, and those that create the content should be compensated for its use.

In ensuring artists are compensated, two other principles important to me are reflected in this legislation. First, noncommercial and small commercial radio stations should be nurtured, and not threatened by a change in the law. Second, songwriters, who now are, as they should be, paid for use of their work should not have their rights diminished in any way.

The legislation we introduce today on a bipartisan basis, along with companion bipartisan legislation being introduced today in the House of Representatives, provides that artists will be compensated by broadcasters for the use of their work. Noncommercial stations--from Vermont Public Radio which broadcasts ``Saturday Afternoon at the Opera,'' to the campus radio station at St. Michael's college that plays ``Those Monday Blues'' and ``The Odds and Evens Jazz Show''--have a different mission than commercial stations, and therefore need a different status, one that will subject the stations only to a nominal flat fee for use of sound recordings. Commercial radio stations that have a revenue under $1.25 million, which comprises roughly three- fourths of all music radio stations, will also have a flat fee option.

Traditional, over-the-air radio remains vital to the vibrancy of our music culture, and I want to continue to see it prosper as it transitions to digital. But I also want to ensure that the performing artist the one whose sound recordings drive the success of broadcast radio is fairly compensated.

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

Mr. President, I am pleased to introduce a bill that will help will build upon our efforts to improve the Bulletproof Vest Partnership Grant Act, which has had so much success in protecting the lives of law enforcement officers across the country. The bill introduced today provides a need-based waiver of matching requirements that will aid State and local law enforcement agencies in financial hardship purchase body armor for their officers. I thank Senators Clinton, Mikulski, Shelby, and Landrieu for joining me to introduce this bill to give our law enforcement officers the protection they need.

I was proud to work with Senator Ben Nighthorse Campbell to author the Bulletproof Vest Partnership Grant Act of 1998, which responded to the tragic Carl Drega shootout in 1997 on the Vermont-New Hampshire border when two state troopers who did not have bulletproof vests were killed. The Federal officers who responded to the scenes of the shooting spree were equipped with life-saving body armor, but the State and local law enforcement officers lacked protective vests because of the cost. Since its inception in 1999, I have worked to reauthorize this program three times, most recently in the 2005 Violence Against Women and Department of Justice Reauthorization bill.

Since 1999, the BVP program has provided $173 million to purchase an estimated 500,000 vests in more than 11,500 jurisdictions nationwide. Vermont has received more than $600,000 in bulletproof vest funding under this program, which has been used to purchase 2700 vests statewide.

I want to thank Senators Mikulski and Shelby for continuing to recognize this program as a priority. As Chair and Ranking Member of the Appropriations Subcommittee that finalizes Justice Department spending priorities, they saw fit to include more than $25 million for the Bulletproof Vest Program in the fiscal year 2008 Consolidated Omnibus Appropriations bill.

Bulletproof vests remain one of the foremost defenses for our uniformed officers, but law enforcement agencies nationwide are struggling over how to find the funds necessary to replace either aged vests, which have a life expectancy of roughly 5 years, or purchase new vests for newly hired officers. We want to ensure that our law enforcement officers are outfitted with vests that will actually stop bullets and save lives. Vests cost between $500 and $1,000 each, depending on the style. Officers are being forced to dip into their own pockets to pay for new vests due to local and State agency budget shortfalls, and will continue to do so unless the Federal Government offers more help.

The bill we introduce today will give discretion to the Director of the Bureau of Justice Assistance within the Justice Department to grant waivers or reductions in the match requirements for bulletproof vests awards to State and local law enforcement agencies that can demonstrate fiscal hardship. Our local law enforcement agencies are constantly responding to new challenges, from fighting a recent rise in violent crime to responding to threats of terrorism, and many localities lack the resources to effectively combat these challenges. Waiving the match requirement for life-saving body armor should be available for police agencies like those in New Orleans, on the Gulf Coast, or in other areas that experience disasters or other circumstances that create fiscal hardships.

A tragic event in Tennessee in 2005 highlights the need for this legislation. Wayne ``Cotton'' Morgan, a Tennessee correctional officer was gunned down on August 9, 2005, outside the Kingston Court House by the wife of an inmate being escorted by Officer Morgan. He was killed, and the prisoner and his wife escaped. Officer Morgan was not wearing a bulletproof vest, although he repeatedly requested one from the warden at Brushy Mountain Prison. The Tennessee Department of Corrections Administrative Policies and Procedures memorandum required that fitted vests be provided to individuals assigned to transportation duties. Despite this requirement and Officer Morgan's repeated requests, he was not issued a vest due to lack of funding. This legislation will help ensure that no officer is left without a bulletproof vest for lack of resources in his or her department.

Our law enforcement officers deserve the fundamental protection that bulletproof vests can provide. Few things mean more to me than when I meet Vermont police officers and they tell me that the protective vests they wear were made possible because of the Bulletproof Vests Partnership Program. This is the least we should do for the officers on the front lines who put themselves in danger for us every day. I want to make sure that every police officer who needs a bulletproof vest gets one.

I look forward to working with the Senate to pass this bipartisan bill to better to protect our law enforcement officers.

Mr. President, I am pleased that the Senate today will pass S. 2135, the Child Soldiers Accountability Act of 2007. I commend Senator Durbin and Senator Coburn for their leadership on this important legislation to combat the unconscionable practice of using children as soldiers in violent conflicts, and I was proud to join as a cosponsor of this bill. I am glad that Senators Durbin and Coburn worked with me and others on the Senate Judiciary Committee to produce a consensus bill and to move it through Committee and the Senate. The United States should do all it can to prevent and punish this conduct which is so contrary to our values.

This bill creates a tough new criminal provision aimed at those who recruit or conscript children under the age of 15 into armed conflict. It extends U.S. jurisdiction to perpetrators of this crime who are present in the United States, regardless of their nationality and where the crime takes place, so that those who commit human rights violations cannot come to this country as a sanctuary from prosecution. The bill also amends immigration law to allow those who have used children as soldiers to be barred or removed from the United States.

This bill is another example of the good work of the Judiciary Committee's new Subcommittee on Human Rights and the Law. I am glad that the efforts Subcommittee Chairman Durbin and I have made to make this subcommittee a force for change and to bring focus on these important issues is resulting in legislative action, as well as providing a forum to put a spotlight on important issues. This is an area in which I have worked for many years as the chair and ranking member of the Foreign Operations Subcommittee of the Appropriations Committee.

During the last 5 years, America's reputation has suffered tremendously. Some of our ability to lead on human rights issues has been needlessly and carelessly squandered. Abu Ghraib, Guantanamo and torture have tarnished that role and that tradition. The secret prisons that the President confirmed last year, this Administration's role in sending people to other countries where they would be tortured, and recent revelations of the destruction of videotapes showing cruel interrogations by the CIA have led to condemnation by our allies, to legal challenges, and to possible criminal investigations.

I was proud to work with Senator Durbin to create the Human Rights and the Law Subcommittee. This subcommittee will continue to closely examine some of the important and difficult legal issues that are now a focus of the Judiciary Committee and will work to reverse and correct the damaging policies established by this administration over the last 6 years. The subcommittee has already spearheaded the Genocide Accountability Act, which will soon provide a powerful new tool in America's efforts to prevent and punish genocide, and has made further progress with hearings and legislation dealing with human trafficking and other vital issues.

The conduct prohibited by the Child Soldiers Accountability Act is appalling but happens all too often throughout the world. We should do everything we can to stop this offense to human rights and human dignity, which exacts such great costs from too many of the world's children. I commend the Senate for passing this important legislation today.

Mr. President, I yield the floor.

Mr. President, if the leader will yield, Senator Dodd is prepared----

I thank the Chair. We have a Judiciary Committee bill that was passed out with a majority vote. I, at some point, will modify that somewhat. At some point, that will require a vote. We have discussed this already. I wanted to make sure people understand that. Senator Dodd will go first, but at some point I will do that.

Mr. President, the Foreign Intelligence Surveillance Act-- FISA--is intended to protect both our national security and the privacy and civil liberties of Americans. We are considering amendments to that important act that will provide new flexibility to our intelligence community. I think we all support surveillance authority, and we have joined together to update FISA dozens of times since its historic passage after the intelligence abuses of earlier decades. I thank the majority leader for his efforts in bringing this matter before the Senate. He has consulted with me and with Chairman Rockefeller and is proceeding by regular order to bring this legislation before the Senate in a manner that allows deliberation of the many protections of Americans' rights added to the bill during consideration by the Senate Judiciary Committee.

It is vitally important that we correct the excesses of the so-called Protect America Act that was rushed through the Senate in an atmosphere of fear and intimidation just before the August recess after the administration reneged on agreements reached with congressional leaders. That bill was hurriedly passed under intense, partisan pressure from the administration. It provided sweeping new powers to the Government to engage in surveillance, without a warrant, of international calls to and from the United States involving Americans, and it provided no meaningful protection for the privacy and civil liberties of the Americans who are on those calls.

Before that flawed bill passed, Senator Rockefeller and I, and several others in the House and the Senate, worked hard and in good faith with the administration to craft legislation that solved an identified problem but also protected Americans' privacy and liberties. Just before the August recess the administration decided, instead, to ram through its version of the so-called Protect America Act with excessive grants of Government authority and without accountability or checks and balances. After almost 6 years of violating FISA through secret warrantless wiretapping programs, that was wrong. A number of us supported the better balanced alternative and voted against the Protect America Act as drafted by the administration.

Fortunately, because the Protect America Act has a 6-month sunset, we have a chance to revisit this matter and do it right. The Judiciary Committees and Intelligence Committees in the Senate and the House have spent the past months considering changes to FISA. In the Senate Judiciary Committee, we held open hearings and countless briefings and meetings to consider new surveillance legislation. We considered legislative language in a number of open business meetings of the committee and reported a good bill to the Senate before Thanksgiving.

The bill we are considering will permit the Government, while targeting overseas, to review more Americans' communications with less court supervision than ever before. I support this surveillance, but we must also take care to protect Americans' liberties. Attorney General Mukasey said at his nomination hearing that ``protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security.'' On that I agree with him. That is what the Senate Judiciary bill does.

I commend the House of Representatives for passing a bill, the RESTORE Act, that takes a balanced approach to these issues. It allows our intelligence community great flexibility to conduct surveillance on overseas targets, while providing oversight and protection for Americans' civil liberties. The Senate Select Committee on Intelligence has also worked hard. I know that Chairman Rockefeller was as disappointed as I at the administration's partisan maneuvering just before the August recess. I commended his efforts this summer and do so, again, now. I believe that he and I both want surveillance with oversight and accountability.

I also want to praise our joint members, Senators Feinstein, Feingold, and Whitehouse, who as members of both the Judiciary Committee and the Select Committee on Intelligence contributed so much to the work of the Judiciary Committee and who worked with me to author many of the additional protections that we adopted and

reported. These Senators and others on the Judiciary Committee worked hard to craft amendments that preserve the basic structure and authority proposed in the bill reported by the Select Committee on Intelligence, while adding crucial protections for Americans.

In my view, and I think the view of many Senators, we need to do more than the bill initially reported by the Senate Select Committee on Intelligence to protect the rights of Americans. Indeed, Senator Rockefeller joins with me to support many of the Judiciary Committee's improvements.

The Judiciary bill, for example, makes clear that the Government cannot claim authority to operate outside the law--outside of FISA--by alluding to legislative measures that were never intended to provide such exceptional authority. This administration has come to argue that the Authorization for the Use of Military Force, AUMF, passed after September 11, justified conducting warrantless surveillance of Americans for more than 5 years. I introduced a resolution on this in the last Congress, when we first heard this canard. When we authorized going after Osama bin Laden, the Senate did not authorize--explicitly or implicitly--warrantless wiretapping of Americans. Yet this administration still clings to this phony legal argument. The Judiciary bill would prevent that dangerous contention with strong language reaffirming that FISA is the exclusive means for conducting electronic surveillance for foreign intelligence purposes.

The Judiciary bill would also provide a more meaningful role for the FISA Court in this new surveillance. The court is a critical independent check on Government excess in the very sensitive area of electronic surveillance. The fundamental purpose of many of the Judiciary Committee changes is to assure that this important, independent check remains meaningful.

On one important issue, I strongly oppose the bill reported by the Senate Select Committee on Intelligence. That bill includes one provision that goes beyond even the so-called Protect America Act. It would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year contrary to FISA and in violation of the privacy rights of Americans.

This administration violated FISA by conducting warrantless surveillance for more than 5 years. They got caught, and if they hadn't, they would probably still be doing it. When the public found out about the President's illegal surveillance of Americans, the administration and the telephone companies were sued by citizens who believe their privacy and their rights were violated. Now the administration is trying to get this Congress to terminate those lawsuits in order to insulate itself from accountability. We should not allow this to happen.

The rule of law is fundamentally important in our system, and so is protecting the rights of Americans from unlawful surveillance. I do not believe that Congress can or should seek to take those rights and those claims from those already harmed. Instead, I will continue to work with Senator Specter, as well as with Senators Feinstein and Whitehouse, to try to craft a more effective alternative to retroactive immunity. We are working with the legal concept of substitution to place the Government in the shoes of the private defendants that acted at its behest and to let it assume full responsibility for the illegal conduct.

I voted for cloture on the motion to proceed to the measure, just as I would have supported proceeding to the House-passed bill, because I believe it is important that we correct the excesses of the so-called Protect America Act. The Judiciary Committee has done good work in reporting protective measures to the Senate to add balance to the surveillance powers of the Government and to better ensure the rights of Americans. I strongly oppose retroactive immunity in favor of accountability.

As we debate these issues, let us keep in mind the reason we have FISA in the first place. Not so long ago, we painfully learned the hard lesson that powerful surveillance tools, without adequate oversight or the checks and balances of judicial review, lead to abuses of the rights of the American people. I hope this debate will provide us an opportunity to show the American people what we stand for, that we will do all we can to secure our future while protecting their cherished rights and freedoms.

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

Mr. President, at the very beginning of this Congress, one of the very first actions I took was to re-introduce the Court Security Improvement Act of 2007, along with Senators Reid, Specter, Durbin, Cornyn, Kennedy, Hatch, Schumer and Collins. The Judiciary Committee considered this important legislation, and recommended it to the full Senate. When Majority Leader Reid wanted to move to consider it, he could not get a time agreement. We were forced to dedicate almost a week of precious floor time to overcome a Republican objection, just to proceed to debate on the bill. Eventually, the measure passed by a 97 to 0 vote. Not a single Senator voted against it. A short time later, a nearly identical bill passed the House by a voice vote. Despite the broad bipartisan support for both bills, however, we were blocked from going to conference to resolve the minor differences between them by an anonymous hold placed by a Republican Senator. For months, we negotiated the minor differences between the House and Senate versions of this legislation.

When we are responding to attacks and threats on our Federal judges, witnesses and officers, time is of the essence. Just last month in Nevada, a man admitted to shooting and injuring the family court judge who was presiding over his divorce. This type of violence against our judiciary can and must be prevented. For our justice system to function effectively, our judges and other court personnel must be safe and secure. They and their families must be free from the fear of retaliation and harassment. Witnesses who come forward must be protected, and the courthouses where our laws are enforced must be secure. Today, almost eleven months after introducing this legislation, we may actually reach consent to pass a compromise version that will pass the House and be sent to the President.

We must act now to get these protections in place and stop delaying such protective measures by anonymous holds. I urge Senators to take up and pass this compromise version of the Court Security Improvement Act so that we can provide the necessary protections that our Federal courts so desperately need. The security of our Federal judges and our courthouses around the Nation is at stake.

Madam President, the conference report on the fiscal year 2008 Department of Defense authorization bill now before the Senate includes some significant mileposts of progress for the National Guard. Those sections of the bill come directly from the National Guard Empowerment Act of 2007, a bill that I sponsored along with Senator Kit Bond of Missouri, my fellow cochair of the U.S Senate National Guard Caucus. Well over half of the Senate--a significant portion of the National Guard Caucus--cosponsored the empowerment bill. Working with the Nation's Governors, key National Guard-affiliated organizations, and the Adjutants General of the United States, we make notable headway in this bill on several issues that go to the core of the Guard's missions, preparedness and our national defense.

This legislation clears away organizational cobwebs in the Department of Defense and changes the Pentagon's structure to better reflect the vital role and responsibilities of the Guard. More importantly, we direct the Department of Defense to begin the urgently needed process of tapping into the National Guard's extensive experience in homeland defense issues--expertise the Defense Department has previously ignored.

To give the Guard more bureaucratic muscle, especially in decisions affecting the Guard, the legislation elevates the Chief of the National Guard from the rank of lieutenant general to the rank of general, making the Chief the prime military adviser to the Secretary of Defense and the Chairman of the Joint Chiefs of Staff. The National Guard Bureau becomes what is called a Joint Activity, still closely affiliated with the Department of the Army and the Air Force, but now more like other joint agencies like Combatant Commands and the Defense Intelligence Agency, capable of communication across the Department.

To focus the Defense Department more on homeland defense, the bill requires that the Deputy Commander of the U.S. Northern Command come from the ranks of the National Guard, and it requires the Department of Defense to develop a plan in conjunction with the Guard to deal with homeland defense situations.

These reforms are tangible progress for the Guard, and there is a pressing need for them. The National Guard is a keystone to our Nation's defense, ready to carry out missions at home and abroad. The Guard is ready to serve as the primary reserve to both the Army and the Air Force, while taking the lead in providing military support during emergencies situations at home. It would take a long time even only to list the missions accomplished by the National Guard since September 11 in carrying out their assignments in Iraq and Afghanistan or to respond to natural disasters like Hurricane Katrina.

Despite all the Guard's achievements on our behalf, the force often has gotten second-class treatment in the Department of Defense. The Guard has to beg and scrape and rely on the tender mercies of others for every piece of equipment they need to do the jobs they are asked to do, and they have to fight to be included in the long-range planning and budget and policy discussions that directly affect the Guard, its missions, its people, its equipment and its other needs. The Guard works extremely closely with state emergency responders, and they have special authorities and experience in working within the domestic United States. But despite this special expertise and these special authorities, does the Pentagon listen to and learn from the Guard's ideas and knowledge about domestic defense? Sad but true, the answer is no.

I wish we could have gone even further in this legislation. Dropped during floor debate here in the Senate was a section of the Empowerment bill to make the Guard Bureau Chief a member of the Joint Chiefs of Staff. That would improve the quality of advice to the Secretary of Defense and the President on domestic defense matters. Another provision, removed in conference with the House, would give the Guard a separate budget for procuring homeland defense-related equipment, as well as the ability to work with states to identify gaps in emergency response capabilities. Another clearly warranted section of our bill would have ensured that our Adjutants General, who command units from the both the Army Guard and the Air Force Guard, receive joint credit for their experience. That would create a greater pool of candidates for the senior positions that we have opened up in this bill. The institutional objections we heard to these provisions ranged from the weak to the unreasonable. But regrettably, in this case they carried the day.

We did make clear progress. The joint activity provision, to take a less prominent example, is highly significant. The phrase ``joint activity'' means exactly how it is used in the Goldwater-Nichols Act: an organization that performs joint missions under the auspices of the Office of the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, or the commander of a Combatant or a Combined Command. The National Guard Bureau has now basically been given a legal license to work not only with the two services--the Army and Air Force--but also with a variety of unified commands, the Joint Staff, and the Office of the Secretary of Defense. The National Guard Bureau now will have similar organizational standing as that granted to other joint activities such as, among many other organizations, the Joint Staff or the Defense Logistics Agency.

This coalition of National Guard supporters--which goes far beyond the sponsors and co-sponsors to the Governors, the Associations, and many others--must keep pushing. If we are to have a national security structure that is as effective as the American people need and deserve it to be, we must ensure that the Guard's voice is heard loud and clear in key deliberations. We must ensure that the Pentagon takes the military support mission seriously. We should consider re-introducing the portions of the Empowerment legislation that have not yet been enacted. To keep a laser-like focus on domestic defense, we must take a careful look at other Defense Department organizations involved in domestic defense, like U.S. Northern Command.

I know that Senator Bond joins me in thanking the Nation's Governors for their stalwart support of the empowerment bill, as well their unstinting energy in working with us on another successful effort on behalf of the Guard, the similarly successful effort to repeal the recent changes to the Insurrection Act, turning back an unjustifiable expansion of a President's power to use the military for law enforcement. This provision of this Defense authorization bill was drawn directly from legislation that I introduced with Senator Bond, which this year was the subject of a hearing by the Judiciary Committee.

Associations like the Adjutants General Association of the United States, the National Guard Association of the United States, and the Enlisted Association of the National Guard of the United States were there every step of the way, keeping their members informed and bringing enormous energy to this effort.

Special thanks go to Representatives Gene Taylor of Mississippi and Tom Davis of Virginia who led a vigorous,

companion effort on the House side, as well as Senators Carl Levin of Michigan, John McCain of Arizona, and John Warner of Virginia for leading the Senate negotiations.

We owe the deepest thanks to the almost 500,000 members of the National Guard. Their ability to balance their full-time jobs with their family responsibilities and Guard commitments is simply remarkable. They are indispensable to our national security structure, at home, and abroad. Their sense of pride, professionalism and duty represents the very best qualities of our military and our country. I am simply in awe of what they have done to protect this Nation, and I know the whole Congress and the country share this heartfelt gratitude.

Throughout this whole process, we have been guided by the fact that the Guard is always there for the people of the United States of America. Our part is easier than theirs: We cannot afford to let our Guard down. The Guard Empowerment provisions of this bill will help us honor that commitment to the men and women of the Guard.

Madam President, I am pleased that we can take a break from the tired partisan sniping from the other side of the aisle to continue, as we have all year, making progress considering and confirming the President's judicial nominations.

The complaints we hear more and more loudly as we approach an election year from the President and others ring hollow. Last month, the Judiciary Committee reached a milestone by reporting out 4 more nominations for lifetime appointments to the Federal bench, reaching 40 in this session of Congress alone. That exceeds the totals reported in each of the previous 2 years, when a Republican-led Judiciary Committee was considering this President's nominees.

Today we consider the nomination of Joseph Normand Laplante, who has been nominated to fill a vacancy in the Northern District of Texas. Joseph is well known to many of us Vermonters as he has spent much of his professional career working for our friends to the east in the old Granite State of New Hampshire and our friends to the south in the Bay State of Massachusetts. Joseph serves as the first assistant U.S. attorney for the District of New Hampshire. Before that, Joseph served as an Assistant U.S. Attorney in the District of Massachusetts, a trial attorney for the U.S. Justice Department's Criminal Division, and a senior assistant attorney general for the State of New Hampshire Office of the Attorney General. He also has experience as a private practitioner in New Hampshire. Joseph graduated from Georgetown University in 1987 and from the Georgetown Law Center in 1990.

I thank Senator Gregg and Senator Sununu for their consideration of this nomination and Senator Whitehouse for chairing the confirmation hearing.

When we confirm the nomination we consider today, the Senate will have confirmed 38 nominations for lifetime appointments to the Federal bench this session alone. That is more than the total number of judicial nominations that a Republican-led Senate confirmed in all of 1997, 1999, 2004, 2005 or 2006 with a Republican Majority. It is 21 more confirmations than were achieved during the entire 1996 session, more than double that session's total of 17, when Republicans stalled consideration of President Clinton's nominations.

When this nomination is confirmed, the Senate will have confirmed 138 total Federal judicial nominees in my tenure as Judiciary Chairman. During the Bush Presidency, more circuit judges, more district judges-- more total judges--were confirmed in the first 24 months that I served as Judiciary Chairman than during the 2-year tenures of either of the two Republican Chairmen working with Republican Senate majorities.

The Administrative Office of the U.S. Courts will list 45 judicial vacancies and 14 circuit court vacancies after today's confirmation. Compare that to the numbers at the end of the 109th Congress, when the total vacancies under a Republican controlled Judiciary Committee were 51 judicial vacancies and 15 circuit court vacancies. That means that despite the additional 5 vacancies that arose at the beginning of the 110th Congress, the current vacancy totals under my chairmanship of the Judiciary Committee are below where they were under a Republican-led Judiciary Committee. They are only a little more than half of what they were at the end of President Clinton's term, when Republican pocket filibusters allowed judicial vacancies to rise to 80, 26 of them for circuit courts.

Despite the progress we have made, I will continue to work to find new ways to be productive on judicial nominations. Just last month, I sent the President a letter urging him to work with me, Senator Specter, and home State Senators to send us more well-qualified, consensus nominations. Now is the time for him to send us more nominations that could be considered and confirmed as his Presidency approaches its last year, before the Thurmond Rule kicks in.

As I noted in that letter, I have been concerned that several recent nominations seem to be part of an effort to pick political fights rather than judges to fill vacancies. For example, President Bush nominated Duncan Getchell to one of Virginia's Fourth Circuit Vacancies over the objections of Senator Webb, a Democrat, and Senator Warner, a Republican. They had submitted a list of five recommended nominations, and specifically warned the White House not to nominate Mr. Getchell. As a result, this nomination

that is opposed by Democratic and Republican home state Senators is one that cannot move.

When the President sends on well-qualified consensus nominations, we can work together and continue to make progress as we are today.

I congratulate Joseph and his family on his confirmation today.

Madam President, the Senate continues, as we have all year, to make progress filling judicial vacancies by considering yet another nomination reported out of Committee this month. The nomination before us today for a lifetime appointment to the Federal bench is Thomas D. Schroeder, to the Middle District of North Carolina. He has the support of both home State Senators. I acknowledge the support of Senators Dole and Burr, and want to thank Senator Whitehouse for chairing the hearing on this nomination.

Last month, the Judiciary Committee reached a milestone by voting to report our 40th judicial nominee this year. That exceeds the totals reported in each of the previous 2 years, when a Republican-led Judiciary Committee was considering this President's nominees.

Thomas D. Schroeder is a Partner at the Winston-Salem, NC, office of the law firm of Womble, Carlyle, Sandridge & Price, PLLC, where he has worked almost his entire legal career. Mr. Schroeder served as a law clerk for Judge George E. MacKinnon on the U.S. Court of Appeals for the DC Circuit. He graduated from Kansas University and Notre Dame Law School, where he was Editor-in-Chief of the Notre Dame Law Review.

When we confirm the nomination we consider today, the Senate will have confirmed 39 nominations for lifetime appointments to the Federal bench this session alone. That exceeds the totals confirmed in all of 2004, 2005, and 2006 when a Republican-led Senate was considering this President's nominees; all of 1989; all of 1993, when a Democratic-led Senate was considering President Clinton's nominees; all of 1997 and 1999, when a Republican-led Senate was considering President Clinton's nominees; and all of 1996, when the Republican-led Senate did not confirm a single one of President Clinton's circuit nominees.

When this nomination is confirmed, the Senate will have confirmed 139 total Federal judicial nominees in my tenure as Judiciary Chairman. During the Bush Presidency, more circuit judges, more district judges-- more total judges--were confirmed in the first 24 months that I served as Judiciary Chairman than during the 2-year tenures of either of the two Republican chairmen working with Republican Senate majorities.

The Administrative Office of the U.S. Courts will list 44 judicial vacancies and 14 circuit court vacancies after today's confirmations. Compare that to the numbers at the end of the 109th Congress, when the total vacancies under a Republican controlled Judiciary Committee were 51 judicial vacancies and 15 circuit court vacancies. That means, that despite the additional vacancies that arose at the beginning of the 110th Congress and throughout this year, the current vacancy totals under my chairmanship of the Judiciary Committee are below where they were under a Republican led-Judiciary Committee. They are almost half of what they were at the end of President Clinton's term, when Republican pocket filibusters allowed judicial vacancies to rise above 100 before settling at 80. Twenty-six of them were for circuit courts.

When the President consults and sends the Senate well-qualified, consensus nominations, we can work together and continue to make progress as we are today.

I congratulate the nominee and his family on his confirmation today.

Madam President, I am pleased that, once again, the Senate has reaffirmed its bipartisan commitment to open and transparent government by unanimously passing the Openness Promotes Effectiveness in our National Government Act, the ``OPEN Government Act--the first major reform to the Freedom of Information Act, ``FOIA'', in more than a decade. I commend the bill's chief Republican cosponsor, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year. I am also appreciative of the efforts of Senator Jon Kyl for cosponsoring this bill and helping us to reach a compromise on this legislation, so that the Senate could consider and pass meaningful FOIA reform legislation this year.

Earlier this year, the Senate passed this historic FOIA reform legislation, S. 849, before adjourning for the August recess. Now that the Senate has unanimously passed a modified bill, to ensure that ``pay/go'' and other concerns of the House are adequately addressed, I hope that the House will promptly enact this bill and send it to the President without further delay.

I have worked very hard to address the concerns of the House Oversight and Government Reform Committee, to ensure that the Congress can enact meaningful FOIA reform legislation this year. I commend Congressman Waxman, the distinguished Chairman of that Committee, for his commitment to FOIA reform and I thank him and his staff for all of their hard work on this legislation.

The bill that the Senate passed today includes ``pay/go'' language that has been requested by the House and it also eliminates a provision on citations to FOIA exemptions in legislation that was in the previous bill. To accommodate other concerns of the House, the bill also includes a new provision that requires Federal agencies to disclose the FOIA exemptions that they rely upon when redacting information from documents released under FOIA. In addition, the bill adds FOIA duplication fees for noncommercial requesters, including the media, to the fee waiver penalty that will be imposed when an agency fails to meet the 20-day statutory clock under FOIA. While I will continue to work with the House and others to further strengthen this critical open government law, I hope that the House will promptly take up the bipartisan FOIA compromise bill that we have been able to pass so that it may be signed into law before the end of the year.

As the first major reform to FOIA in more than a decade, the OPEN Government Act will help to reverse the troubling trends of excessive delays and lax FOIA compliance in our government and help to restore the public's trust in their government. This bill will also improve transparency in the Federal Government's FOIA process by restoring meaningful deadlines for agency action under FOIA; imposing real consequences on federal agencies for missing FOIA's 20-day statutory deadline; clarifying that FOIA applies to Government records held by outside private

contractors; establishing a FOIA hotline service for all Federal agencies; and creating a FOIA Ombudsman to provide FOIA requestors and, federal agencies with a meaningful alternative to costly litigation.

Specifically, the OPEN Government Act will protect the public's right to know, by ensuring that anyone who gathers information to inform the public, including freelance journalists and bloggers, may seek a fee waiver when they request information under FOIA. The bill ensures that Federal agencies will not automatically exclude Internet blogs and other Web-based forms of media when deciding whether to waive FOIA fees. In addition, the bill also clarifies that the definition of news media, for purposes of FOIA fee waivers, includes free newspapers and individuals performing a media function who do not necessarily have a prior history of publication.

The bill also restores meaningful deadlines for agency action, by ensuring that the 20-day statutory clock under FOIA starts when a request is received by the appropriate component of the agency and requiring that agency FOIA offices get FOIA requests to the appropriate agency component within 10 days of the receipt of such requests. To ensure accuracy in FOIA responses, the bill allows federal agencies to toll the 20-day clock while they are awaiting a response to a reasonable request for information from a FOIA requester on one occasion, or while the agency is awaiting clarification regarding a FOIA fee assessment. In addition, to encourage agencies to meet the 20- day time limit the bill requires that an agency refund FOIA search fees--and duplication fees for noncommercial requestors--if it fails to meet the 20-day deadline, except in the case of exceptional circumstances as defined by the FOIA statute.

The bill also addresses a relatively new concern that, under current law, Federal agencies have an incentive to delay compliance with FOIA requests until just before a court decision is made that is favorable to a FOIA requestor. The Supreme Court's decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598, 2001, eliminated the ``catalyst theory'' for attorneys' fees recovery under certain federal civil rights laws. When applied to FOIA cases, Buckhannon precludes FOIA requesters from ever being eligible to recover attorneys fees under circumstances where an agency provides the records requested in the litigation just prior to a court decision that would have been favorable to the FOIA requestor. The bill clarifies that Buckhannon does not apply to FOIA cases. Under the bill, a FOIA requester can obtain attorneys' fees when he or she files a lawsuit to obtain records from the Government and the Government releases those records before the court orders them to do so. But, this provision would not allow the requester to recover attorneys' fees if the requester's claim is wholly insubstantial. To address House ``pay/go'' concerns, the bill also requires that any attorneys'' fees assessed under this provision be paid from any annually appropriated agency funds.

To address concerns about the growing costs of FOIA litigation, the bill also creates an Office of Government Information Services in the National Archives and creates an ombudsman to mediate agency-level FOIA disputes. In addition the bill ensures that each federal agency will appoint a Chief FOIA Officer, who will monitor the agency's compliance with FOIA requests, and a FOIA Public Liaison who will be available to resolve FOIA related disputes.

Finally, the bill does several things to enhance the agency reporting and tracking requirements under FOIA. The bill creates a tracking system for FOIA requests to assist members of the public and the media. The bill also establishes a FOIA hotline service for all Federal agencies, either by telephone or on the Internet, to enable requestors to track the status of their FOIA requests. The bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located.

The Freedom of Information Act is an essential tool to ensure that all Americans can access information about the workings of their government. But, after four decades, this open government law needs to be strengthened. I am pleased that the reforms contained in the OPEN Government Act will ensure that FOIA is reinvigorated--so that it works more effectively for the American people.

Again, I commend Senators Cornyn and Kyl and the many other cosponsors of this legislation for their dedication to open government. But, most importantly, I especially want to thank the many concerned citizens who, knowing the importance of this measure to the American people's right to know, have demanded action on this bill. This bill is endorsed by more than 115 business, public interest, and news organizations from across the political and ideological spectrum, including the American Library Association, the U.S. Chamber of Commerce, OpenTheGovemment.org, Public Citizen, the Republican Liberty Caucus, the Sunshine in Government Initiative and the Vermont Press Association. The invaluable support of these and many other organizations is what led the opponents of this bill to come around and support this legislation.

By passing this important FOIA reform legislation, the Senate has reaffirmed the principle that open government is not a Democratic issue or a Republican issue. But, rather, it is an American issue and an American value. I strongly encourage the House of Representatives, which overwhelmingly passed a similar measure earlier this year, to promptly take up and enact this bill before adjourning for the year.

Madam President, I strongly disagreed with the very conservative, very activist Supreme Court decision on Kelo, but this is not the place to correct that, on a farm bill. If the Senate, or any Senator, wants to introduce legislation to repeal Kelo, then let's take it to the committee of jurisdiction, the Senate Judiciary Committee, and we will hold hearings on it.

There have been no hearings. This amendment does nothing to prevent the Government from seizing private property in order to hand it over to private developers. Instead, it allows governments to seize farmland for a prison but not eminent domain for conservation purposes or a parkland. It is opposed by all the leading conservation groups--the Defenders of Wildlife, the National Wildlife Federation, the Wilderness Society, and on and on.

Now, my commitment to farming is very strong, but I don't want to say let's grab farmland for a prison because we passed legislation that nobody has reviewed, nobody has done anything on. This is a mistake. It doesn't belong in a farm bill.

If the Senate, or any Senator, wants to overturn the Kelo decision, which after all was done by an activist Republican conservative Supreme Court, then we will hold hearings on it.

Mr. President, the Senate continues, as we have all year, to make progress filling judicial vacancies by considering yet another nomination reported out of committee this month. The nomination before us today for a lifetime appointment to the Federal bench is Amul R. Thapar, to the Eastern District of Kentucky. He has the support of both home State Senators. I acknowledge the support of Senators McConnell and Bunning, and want to thank Senator Whitehouse for chairing the hearing on this nomination.

In November, the Judiciary Committee reached a milestone by voting to report our 40th judicial nominee this year. That exceeds the totals reported in each of the previous 2 years, when a Republican-led Judiciary Committee was considering this President's nominees.

I am delighted to promptly consider the nomination of Mr. Thapar. The National Asian Pacific American Bar Association wrote to us in support of his nomination, which is the first of a South Asian American to be an Article III judge by this President. When confirmed, he would become only the seventh Asian Pacific American Article III judge in our Nation's history.

Amul R. Thapar is the U.S. Attorney for the Eastern District of Kentucky in Lexington, KY. Before that, he served as an Assistant U.S. Attorney in the Southern District of Ohio and in the District of Columbia. He worked in private practice at the law firms of Squire, Sanders & Dempsey and Williams & Connolly LLP and worked as a general counsel for Equalfooting.com. Mr. Thapar served as a law clerk for Judge Nathaniel R. Jones on the U.S. Court of Appeals for the Sixth Circuit and for Judge S. Arthur Spiegel on the District Court for the Southern District of Ohio. He graduated from Boston College and the University of California, Berkeley Boalt Hall School of Law.

When we confirm the nomination we consider today, the Senate will have confirmed 37 nominations for lifetime appointments to the Federal bench this session alone. That exceeds the totals confirmed in all of 2004, 2005, and 2006 when a Republican-led Senate was considering this President's nominees; all of 1989; all of 1993, when a Democratic-led Senate was considering President Clinton's nominees; all of 1997 and 1999, when a Republican-led Senate was considering President Clinton's nominees; and all of 1996, when the Republican-led Senate did not confirm a single one of President Clinton's circuit nominees.

When this nomination is confirmed, the Senate will have confirmed 137 total Federal judicial nominees in my tenure as Judiciary chairman. During the Bush Presidency, more circuit judges, more district judges-- more total judges--were confirmed in the first 24 months that I served as Judiciary chairman than during the 2-year tenures of either of the two Republican chairmen working with Republican Senate majorities.

The Administrative Office of the U.S. Courts will list 45 judicial vacancies and 14 circuit court vacancies after today's confirmations. Compare that to the numbers at the end of the 109th Congress, when the total vacancies under a Republican-controlled Judiciary Committee were 51 judicial vacancies and 15 circuit court vacancies. That means that despite the additional vacancies that arose at the beginning of the 110th Congress and throughout this year, the current vacancy totals under my chairmanship of the Judiciary Committee are below where they were under a Republican led-Judiciary Committee. They are almost half of what they were at the end of President Clinton's term, when Republican pocket filibusters allowed judicial vacancies to rise above 100 before settling at 80. Twenty-six of them were for circuit courts.

When the President consults and sends the Senate well-qualified, consensus nominations, we can work together and continue to make progress as we are today.

I congratulate the nominee and his family on his confirmation today.