Floor Statements

Mr. President, I oppose the amendment offered by Senator Gregg, among others. It is certainly not within the jurisdiction of the Senate Agriculture Committee, on which I have the honor to serve, but is within the jurisdiction of the Senate Judiciary Committee, which I have the honor to chair. It is something that should be looked at there. It would be like putting a Defense amendment on the Agriculture bill.

But far worse than just the question of where the jurisdiction is and why this amendment makes no sense here, it would limit the legal rights of what rural women and children are eligible to receive when they are severely injured in our health care system. It does not provide protection for rural women and children. In fact, it leads to a lower standard of care by treating them differently than all other patients in the country. I am certainly not going to vote for something like this and go home to my State, which is a very rural State, and tell the women and children: I voted to make you a second-class citizen. The amendment will overturn our State laws regarding the statute of limitations. It would limit the legal rights of our most vulnerable citizens.

I am always surprised at the other side when I hear, depending on what the issues are: We have to protect the States. We have to protect our State laws. We can't have the Federal Government trample on the State laws. However, if it is something the major insurers want: Of course we will override State laws concerning the statute of limitations, we will limit the legal rights of our most vulnerable citizens.

Nothing remotely related to this novel legal treatment of severely injured rural women or children has even been debated or discussed in the Judiciary Committee. I suspect because nobody would take it seriously if you said we have to protect insurance companies, so we have to cut the legs out from under rural women and children.

The amendment does nothing to protect rural victims of medical malpractice. It does nothing to prevent the serious injuries of malpractice in the first place. Caps on damages, such as the one in the pending amendment, would arbitrarily limit the compensation that the most seriously injured patients are able to receive. This says nothing of what it does to State legislators, which is trample State legislators by telling them that an amendment debated for a matter of minutes on the floor, in our judgment, is so much better than the laws of your State.

The central truth of the troubles of malpractice insurance is that it is a problem in the insurance system and industry, not in the tort system. High malpractice insurance premiums are not the direct result of malpractice lawsuit verdicts. There have been enough studies to prove that conclusively. Rather, they are the result of investment decisions by the insurance companies that resulted in business models geared to ever-increasing profits, as well as the cyclical hardening of the liability insurance market.

Instead of blaming lawyers or, worse yet, blaming the victims of medical malpractice, we should look at the special treatment Federal law currently bestows on the insurance industry. They have a blanket exemption from Federal antitrust laws. Most people don't realize that. We assume the law applies to everybody in this country, but antitrust laws do not apply to these insurance companies.

Our antitrust laws for everybody else are the beacon of good competition practice, and when our antitrust laws are followed, consumers benefit. How? They get lower prices, they get more choices, and they invariably get better services. But when the insurance industry operates outside of the structure of antitrust laws, and they do not have to face any competition, then they are allowed to collude and they can set rates. When they do, our health care system, our physicians and our patients all suffer.

Earlier this year I introduced the bipartisan Insurance Industry Competition Act, S. 618, along with Senators Specter and Lott and Reid and Landrieu. It would assure that malpractice insurers and others could not artificially raise premiums and reduce benefits through collusion. This is a responsible solution to ensure competitive pricing--putting the burden on rural victims of medical malpractice is not.

If you were to try to put the burden on the rural victims, the women and children of rural America, for somebody else's medical malpractice, that is not the way to solve the problems.

Arbitrarily capping damages available to rural women and children does nothing to solve the flawed medical malpractice insurance market. It is a boon to companies that operate outside the antitrust system and can collude to set rates anywhere they want.

I would suggest we do a thoughtful, collaborative consideration in the Judiciary Committee where this discussion belongs, get a sensible solution that is fair to patients and can support those in our medical profession who want to practice quality health care.

This partisan amendment does not do this. It is not designed for a creative solution to a serious problem. Anyone who wants to vote for it, I hope they are prepared to go home and tell their State legislature: We walked all over you in hobnailed boots, you are irrelevant, we are the Senate. One hundred people here know far better than the legislatures in all your States.

That is not the way to do it. That is not the way to bring things about. So if you want real consideration of this, let's do it along with raising the issues of why should the insurance companies be able to collude, why should they be outside the antitrust laws, why should they be able to meet behind closed doors and do whatever they want to set our rates? That is what I ask.

Mr. President, with only a few legislative days left to us before the Christmas holidays and the end of this session, we continue seeking to make progress in filling the many U.S. attorney vacancies across our Nation and the high-level vacancies at the Justice Department.

Today, the Senate will confirm three more nominations for U.S. attorneys, including the nominations of Gregory A. Brower to the District of Nevada, Diane J. Humetewa to the District of Arizona, and Edmund A. Booth, Jr. to the Southern District of Georgia. Two of the three nominations--Ms. Humetewa and Mr. Brower--are replacements for two of the outstanding U.S. attorneys who were fired almost a year ago as part of the ill-advised, partisan plan to replace well-performing U.S. attorneys. I thank the home State Senators--Senators Reid, Ensign, McCain, Kyl, Chambliss, and Isakson--for their consideration of these nominations.

We also are proceeding to fill one of the many high-level vacancies at the Department of Justice by confirming the nomination of Ronald Jay Tenpas to be Assistant Attorney General for the Environment and Natural Resources Division at the Justice Department. I thank Senator Whitehouse for chairing his hearing.

Over the course of this year, the Judiciary Committee's investigation into the firing of United States attorneys and the influence of White House political operatives on Federal law enforcement has led to resignations at the highest ranks in the Justice Department, including the Attorney General, the Deputy Attorney General, the Associate Attorney General, the chiefs of staff of the Attorney General and Deputy Attorney General, the White House liaison, as well as several White House officials.

When I met with Michael Mukasey before his confirmation hearing to replace Alberto Gonzales as Attorney General, I emphasized the need to fill the many vacancies that remain at the Department with nominees who will restore the independence of Federal law enforcement.

In the days before the congressional Thanksgiving recess, the White House made a show of releasing the names of a score of nominees for high-level positions in the Department of Justice. Yet, that announcement was mostly bluster. We received the nomination of Mark Filip to be the Deputy Attorney General nearly 3 full weeks after the announcement was made. Had the nomination been sent immediately following the White House announcement, the committee could have considered Judge Filip's nomination in early December. As it was, after a 3-week White House delay in sending up the nomination, I immediately set a hearing on his nomination for next Wednesday, December 19, once the Senate received it.

Nearly a month after the White House announced its intent to nominate Kevin O'Connor be the Associate Attorney General and Gregory Katsas to be the Assistant Attorney General of the Civil Division at the Department of Justice we have only now received those nominations. We have not yet been provided with their background materials to allow us to review them. Because of the administration's delay, we will not be able to consider those nominations before the end of the year.

The Judiciary Committee has reported 20 executive nominations this year. To make further progress, the committee is holding back-to-back hearings next week, before the Christmas break, on six nominations for senior leadership posts at the Justice Department and Executive Office of the President, including the recently received nomination to be Deputy Attorney General.

There are now 23 districts with acting or interim U.S. attorneys instead of Senate-confirmed, presidentially appointed U.S. attorneys, over a quarter of all districts. Many of these vacancies, including several for which we consider nominations today, could have been filled a year ago had the White House worked with the Senate.

In the course of the committee's investigation into the unprecedented mass firing of U.S. attorneys by the President who appointed them, we uncovered an effort by officials at the White House and the Justice Department to exploit an obscure provision enacted during the Patriot Act reauthorization to do an end-run around the Senate's constitutional duty to confirm U.S. attorneys. The result was the firing of well- performing U.S. attorneys for not bending to the political will of political operatives at the White House.

When it comes to the United States Department of Justice and to the U.S. attorneys in our home States, Senators have a say and a stake in ensuring fairness and independence in order to insulate the Federal law enforcement function from untoward political influence. That is why the law and the practice has always been that these appointments require Senate confirmation. The advice and consent check on the appointment power for U.S. attorneys is a critical function of the Senate.

I had hoped when the Senate unanimously voted to close the loophole created by the Patriot Act, passing S.214, the ``Preserving United States Attorneys Independence Act of 2007,'' it would send a clear message to the administration to make nominations that could receive Senate support and begin to restore an important check on the partisan influence in law enforcement.

Yet, even as we closed one loophole, the administration has been exploiting others to continue to avoid coming to the Senate. Under the guidance of an erroneous opinion of the Justice Department's Office of Legal Counsel, the administration has been naming acting U.S. attorneys and interim U.S. attorneys sequentially. They have used this misguided approach to put somebody in place for 330 days without the advice and consent of the Senate. This approach runs afoul of congressional intent and the law.

We will continue to make progress when we can, and I will continue to urge the White House to send the Senate consensus, qualified nominees. I congratulate the nominees and their families on their confirmation today.

Mr. President, in the 8 months since the horrific incident at Virginia Tech that resulted in the tragic deaths of 32 students, we have witnessed a barrage of new incidents involving threatening conduct and, too often, deadly acts of violence at our schools and college campuses nationwide.

Just this past Saturday, police arrested a student at Loyola Marymount University in Los Angeles on suspicion of posting an anonymous online threat to kill people on campus. The threat appeared on a blog used primarily by college students. It said: ``I am going to shoot and kill as many people as I can until which time I am incapacitated or killed by police.'' Fortunately, police got to this troubled student before he could make good on his threat. But I urge the Senate not to sit back and wait until the next time, when police may not be able to stop a deadly event before it occurs. We must act now to protect our schools and college campuses.

Those who perpetrate these terrible crimes know no boundaries. No targets are off limits. This past Sunday, a man killed two people in Arvada, CO, after being refused lodging at a Christian missionary center. Later that day, in Colorado Springs, the same man opened fire outside the New Life Church, taking the lives of two teenaged sisters and leaving a third victim in critical condition. These recent incidents make clear yet again that we must do all we can to ensure that law enforcement is prepared and equipped to respond to such incidents.

I urge Congress to take prompt action to help stem this tide of violence. The full Senate can begin to address this terrible and recurring problem by taking up and passing the School Safety and Law Enforcement Improvement Act of 2007, a legislative package that responds to the Virginia Tech tragedy and the ongoing problem of violence in our schools and in our communities.

The Judiciary Committee passed this important bill out of committee over 4 months ago. In passing the bill out of the Judiciary Committee this past September, the committee attempted to show deference to Governor Kaine and the task forces at work in Virginia and to complement their work and recommendations. Working with several Senators, including Senators Boxer, Reed, Specter, Feingold, Schumer, and Durbin, the committee originated this bill and reported it before the start of the academic year in the hope that the full Senate could pass these critical school safety improvements this fall.

Regrettably, the bill has been stalled on the Senate floor. I urge those holding up its passage to consider that this administration has spent more than $15 billion to equip, train, and build facilities for the Iraqi security forces. Surely Congress can stand up for American kids who face unrelenting school violence by authorizing just a fraction of this money to reduce deadly violence in our schools and communities right here at home.

I do not think the Senate should continue to stand by and wait for the next horrific school tragedy to make the critical changes necessary to insure safety in our schools and on our college campuses. The risk of school violence will not go away just because Congress may shift its focus. Since this bill passed out of committee, we have seen tragedy at Delaware State, University of Memphis, SuccessTech Academy in Cleveland, OH, as well as incidents in California, New York, Pennsylvania, and Oregon, to name just a few. I urge the Senate to move aggressively with the comprehensive school safety legislation. It includes background check improvements, together with other sensible yet effective safety improvement measures supported by law enforcement across the country. If we are prohibited by objection from doing so by unanimous consent, then let us move to it and let those with objections seek to amend those provisions to which they object.

There are too many incidents at too many colleges and schools nationwide. This terrorizes students and their parents. We should be doing what we can to help.

Several weeks ago, a troubled student wearing a Fred Flintstone mask and carrying a rifle through campus was arrested at St. John's University in Queens, NY, prompting authorities to lock down the campus for 3 hours. The day after that incident, an armed 17-year-old on the other side of the country in Oroville, CA, held students hostage at Las Plumas High School, also resulting in a lock-down. The incidents have continued with the arrest a few weeks ago of an armed student suspected of plotting a Columbine-style attack on fellow high school students in Norristown, PA. More recently, in Happy Valley, OR, police arrested a 10-year-old student who brought a semi-automatic weapon into his elementary school. The students in these situations were lucky and escaped without injury.

University of Memphis student Taylor Bradford was not so lucky. He was killed on campus on September 30 in what university officials believe was a targeted attack. He was 21 years old. Shalita Middleton was not so lucky. She died on October 23 from injuries she sustained during the Delaware State incident. She was 17 years old. Nathaniel Pew was not so lucky. He was wounded at Delaware State. High school teachers Michael Grassie and David Kachadourian and students Michael Peek and Darnell Rodgers--all of whom were wounded by a troubled student at SuccessTech Academy on October 10--were not so lucky.

The School Safety and Law Enforcement Improvement Act responds directly to incidents like these by squarely addressing the problem of violence in our schools in several ways. The bill enlists the States as partners in the dissemination of critical information by making significant improvements to the National Instant Background Check System, known as the NICS system. The bill also authorizes Federal assistance for programs to improve the safety and security of our schools and institutions of higher education, provides equitable benefits to law enforcement serving those institutions including bulletproof vests, and funds pilot programs to develop cutting-edge prevention and intervention programs for our schools. The bill also clarifies and strengthens two existing statutes--the Terrorist Hoax Improvements Act and the Law Enforcement Officers Safety Act--which are designed to improve public safety.

Specifically, title I would improve the safety and security of students both at the elementary and secondary school level, and on college and university campuses. The K-12 improvements are drawn from a bill that Senator Boxer introduced in April, and I want to thank Senator Boxer for her hard work on this issue. The improvements include increased funding for much-needed infrastructure changes to improve security as well as the establishment of hotlines and tip-lines, which will enable students to report potentially dangerous situations to school administrators before they occur.

These improvements can save lives. After the four students and teachers

were wounded at SuccessTech Academy, the press reported that parents had been petitioning to get a metal detector installed and additional security personnel added, and that the guard who was previously assigned to the school had been removed 3 years ago. In fact, the entire city of Cleveland has just 10 metal detectors that are rotated throughout the city's more that 100 schools. Title I of the bill would enhance the ability of school district to apply for and receive grant money to fund the installation of metal detectors and the training and hiring of security personnel to keep our kids safe. Over the past 4 years, this administration has spent over $15 billion to equip, train, and build facilities for the Iraqi security forces. Surely, Congress can stand up for American kids who face unrelenting school violence by supporting just a small fraction of this figure for much-needed school safety improvements.

To address the new realities of campus safety in the wake of Virginia Tech and more recent college incidents, title I also creates a matching grant program for campus safety and security to be administered out of the COPS Office of the Department of Justice. The grant program would allow institutions of higher education to apply, for the first time, directly for Federal funds to make school safety and security improvements. The program is authorized to be appropriated at $50,000,000 for the next 2 fiscal years. While this amounts to just $3 per student each year, it will enable schools to more effectively respond to dangerous situations on campus.

Title II of the bill seeks to improve the NICS system. The senseless loss of life at Virginia Tech revealed deep flaws in the transfer of information relevant to gun purchases between the States and the Federal Government. The defects in the current system permitted the perpetrator of this terrible crime to obtain a firearm even though a judge had declared him to be a danger to himself and thus ineligible under Federal law. Seung-Hui Cho was not eligible to buy a weapon given his mental health history, but he was still able to pass a background check because data was missing from the system. We are working to close gaps in the NICS system. Title II will correct these problems, and for the first time will create a legal regime in which disqualifying mental health records, both at the State and Federal level, would regularly be reported into the NICS system.

Title III would make sworn law enforcement officers who work for private institutions of higher education and rail carriers eligible for death and disability benefits, and for funds administered under the Byrne grant program and the bulletproof vest partnership grant program. Providing this equitable treatment is in the best interest of our Nation's educators and students and will serve to place the support of the Federal Government behind the dedicated law enforcement officers who serve and protect private colleges and universities nationwide. I commend Senator Jack Reed for his leadership in this area.

Title IV of the bill makes improvements to the Law Enforcement Officers Safety Act of 2003. These amendments to existing law will streamline the system by which qualified retired and active officers can be certified under LEOSA. It serves us all when we permit qualified officers, with a demonstrated commitment to law enforcement and no adverse employment history, to protect themselves, their families, and their fellow citizens wherever those officers may be.

Title V incorporates the PRECAUTION Act, which Senators Feingold and Specter asked to have included. This provision authorizes grants to develop prevention and intervention programs for our schools.

Finally, Title VI incorporates the Terrorist Hoax Improvements Act of 2007, at the request of Senator Kennedy.

Let us go forward and act now on this important bill. The Virginia Tech Review Panel--a body commissioned by Governor Tim Kaine to study the Virginia Tech tragedy--recently issued its findings based on a 4- month long investigation of the incident and its aftermath. This bill would adopt a number of recommendations from the review panel aimed at improving school safety planning and reporting information to NICS. We must not miss this opportunity to implement these initiatives nationwide, and to take concrete steps to ensure the safety of our kids.

I recognize that there is no solution to fully end the sad phenomenon of school violence. But the recent tragedies should prompt us to respond in realistic and meaningful ways when we are presented with such challenges. I hope the Senate can promptly move this bill forward to invest in the safety of our students and better support law enforcement officers across the country.

Mr. President, nothing is more fundamental to our system of justice than the tenet inscribed in Vermont marble on the supreme court building, that all people should receive ``equal justice under law.'' For more than 20 years, however, our Nation has tolerated a Federal cocaine sentencing policy that treats crack offenders more harshly than cocaine offenders. This policy has unacceptably had a disparate impact on people of color and the poor--without any empirical justification.

Today, the U.S. Sentencing Commission took yet another important step in addressing the wide disparity in our Federal cocaine sentencing laws. By voting to change our Sentencing Guidelines to reduce the sentences of crack offenders currently incarcerated, the Commission took a moderate but significant step to reduce unwarranted sentencing disparities in Federal crack and powder cocaine laws. Their unanimous vote is consistent with the goals of the Sentencing Reform Act, including ``the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct'' and brings our Nation one step closer to a drug policy that is fair and equal for all Americans.

The good news does not stop there. Just yesterday, in the landmark ruling of Kimbrough v. United States, the Supreme Court of the United States expanded the power of our Federal trial courts to address the unfair disparity in our Federal sentencing laws between crack and powder cocaine. By a vote of 7 to 2, the Court ruled that Federal judges may, in their discretion, consider this disparity and depart from a guideline sentence where the punishment is ``greater than necessary'' to serve Congress's objectives.

Under current law, an offender apprehended with 5 grams of crack cocaine faces the same 5-year mandatory minimum sentence as an offender with 500 grams of powder cocaine. That means existing law gives the same sentence to a drug trafficker dealing crack cocaine as it would to one dealing 100 times more powder cocaine.

This year, the Sentencing Commission has taken historic actions to address the unfairness and injustice of this disparity. The Commission held hearings and, after extensive study of this issue, reiterated its long-held position that crack cocaine penalties continue to disproportionately impact minorities and undermine various congressional objectives set forth in the Sentencing Reform Act. Next, the Commission attempted to correct this disparity and provide some relief to some crack cocaine offenders by recommending that all crack penalties be lowered by two base offense levels. Last month, Congress allowed this new Commission amendment--the so-called ``Crack Minus 2'' amendment--to be enacted in the Sentencing Guidelines.

Today, the Sentencing Commission has taken yet another positive step.

This amendment is consistent with Congress's intent in creating a sentencing guideline system. In its report to Congress, the Commission said that the Crack Minus 2 amendment was needed to address its long- held finding that ``the 100-to-1 drug quantity ratio (for crack cocaine) significantly undermines the various congressional objectives set forth in the Sentencing Reform Act.'' I agree. I join the chorus of our esteemed Federal judges, articulated in the Judicial Commission's testimony before the Sentencing Commission on this amendment, that fundamental fairness dictates that this amendment ``equally applies to offenders who were sentenced in the past as well as offenders [who] will be sentenced in the future.''

Fundamental fairness dictates that we undo past errors to build public confidence in the rule of law. Americans must have faith and confidence that our drug laws are fair and proportional, and a rule correcting a past injustice should be applied retroactively to restore that public confidence. The public's faith is even more critical in crack cocaine cases where 85 percent of the defendants are African Americans--a fact which only enhances the public perception that harsh and punitive sentences are imposed disproportionately on persons of color.

Allowing judges to reconsider the sentences for crack offenders will not threaten public safety. As the Judicial Conference noted in its testimony before the Sentencing Commission, ``no offender would be eligible for release without judicial approval.'' This amendment allows judges the discretion to give a sentence outside of the Federal guidelines but does not mandate that such a sentence must be imposed. As chairman of the Senate Judiciary Committee, I have some experience with the people who serve our Nation in lifetime positions on the Federal bench. Unlike those who argue that the sky is falling, I have every confidence in the ability of our Federal judges to use this power sparingly and to provide a proper check when necessary to prevent the release of dangerous offenders back into our communities and neighborhoods.

Most importantly, while I abhor the damage done by drug abuse, I also abhor that the penalties for those in the inner city are different than for those in affluent society. For 21 years, far too many African Americans and low-level drug offenders were subject to unfair and overly punitive Federal crack cocaine sentencing laws. With the Commission's amendment to reduce this disparity, we begin the process of healing wounds which have long shaken the public's confidence in our Federal drug policy. Applying this fix retroactively is only fair and just.

The administration's failure to support retroactivity of even the slightest modification of crack penalties is both a surprise and a deep disappointment. I recall that 2 days before taking office, President Bush said that we should address this problem ``by making sure the powder cocaine and the crack cocaine sentences are the same.'' He also said, ``I don't believe we ought to be discriminatory.'' Yet his Justice Department has strongly opposed retroactive application of this crack cocaine reform amendment, even though failure to act would once again disparately impact African Americans, since an estimated 85 percent of those who would benefit from the policy are African Americans. The Justice Department's position would also erode public confidence that our drug laws are free from bias since previous drug reform amendments more likely to benefit Whites and Hispanics were made retroactive.

Thankfully, the Sentencing Commission accepted the administration's view. Their decision today was unanimous. I hope the Attorney General will take notice and move to support drug laws that treat all Americans equally.

While fundamental change will require congressional action, I salute the Sentencing Commission for its leadership on this issue. I urge my colleagues to support the Commission's decision and support additional changes to our laws to further reduce the disparity in our Federal cocaine sentencing laws. It is long past time for us to rectify this problem.

Mr. President, today I introduce legislation to create Federal Rule of Evidence 502. I am pleased that Senator Specter has joined me in this

effort. After much study, several hearings, and significant public comment, the Judicial Conference's Standing Committee on Rules of Practice and Procedure, and the Advisory Committee on Evidence Rules, arrived at a proposed new rule that is intended to provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of email and other electronic media. I commend all of the judges, professors and practitioners who were involved in the rule's drafting and subsequent improvement for their hard work and attention to this issue. The legislation we are introducing today contains the text that the Judicial Conference recommends.

Billions of dollars are spent each year in litigation to protect against the inadvertent disclosure of privileged materials. With the routine use of email and other electronic media in today's business environment, discovery can encompass millions of documents in a given case, vastly expanding the risks of inadvertent disclosure. The rule proposed by the Standing Committee is aimed at adapting to the new realities that accompany today's modes of communication, and reducing the burdens associated with the conduct of diligent electronic discovery.

Our proposed legislation would set clear guidelines regarding the consequences of inadvertent disclosure of privileged material, and provides that so long as reasonable steps are taken in the prevention of such a disclosure, or to assure the prompt retrieval of disclosed information, no waiver will result. Moreover, an inadvertent disclosure of privileged information would not result in a broader subject matter waiver beyond the specific materials disclosed.

If a disclosure of privileged material is made voluntarily, only the privilege associated with the voluntarily disclosed material is waived, and not other undisclosed related materials. But if voluntary disclosure of privileged material is done selectively in an effort to mislead or gain unfair advantage, then where fairness dictates, this will result in a subject matter waiver.

This legislation would also provide that confidentiality agreements entered into by parties to litigation, and approved by the court, will bind all non-parties in other State or Federal litigation. This provision will add meaningful protection to parties entering confidentiality agreements and, along with other components of the proposed rule, will aid in reducing the burdens of excessive pre- production document review.

Unlike other Federal court rules, any proposed rule that modifies an evidentiary privilege must be approved by Congress pursuant to the Rules Enabling Act. The modification of a privilege is an undertaking not to be approached lightly, and the process that resulted in proposed Rule 502 was thorough and thoughtful. It has resulted in widespread approval of the proposed rule from the bench and bar at both the State and Federal level.

I urge all Senators to join Senator Specter and me to pass this proposal and take a positive step toward modernizing and improving the Federal Rules of Evidence.

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

Mr. President, today I introduce legislation to create Federal Rule of Evidence 502. I am pleased that Senator Specter has joined me in this

effort. After much study, several hearings, and significant public comment, the Judicial Conference's Standing Committee on Rules of Practice and Procedure, and the Advisory Committee on Evidence Rules, arrived at a proposed new rule that is intended to provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of email and other electronic media. I commend all of the judges, professors and practitioners who were involved in the rule's drafting and subsequent improvement for their hard work and attention to this issue. The legislation we are introducing today contains the text that the Judicial Conference recommends.

Billions of dollars are spent each year in litigation to protect against the inadvertent disclosure of privileged materials. With the routine use of email and other electronic media in today's business environment, discovery can encompass millions of documents in a given case, vastly expanding the risks of inadvertent disclosure. The rule proposed by the Standing Committee is aimed at adapting to the new realities that accompany today's modes of communication, and reducing the burdens associated with the conduct of diligent electronic discovery.

Our proposed legislation would set clear guidelines regarding the consequences of inadvertent disclosure of privileged material, and provides that so long as reasonable steps are taken in the prevention of such a disclosure, or to assure the prompt retrieval of disclosed information, no waiver will result. Moreover, an inadvertent disclosure of privileged information would not result in a broader subject matter waiver beyond the specific materials disclosed.

If a disclosure of privileged material is made voluntarily, only the privilege associated with the voluntarily disclosed material is waived, and not other undisclosed related materials. But if voluntary disclosure of privileged material is done selectively in an effort to mislead or gain unfair advantage, then where fairness dictates, this will result in a subject matter waiver.

This legislation would also provide that confidentiality agreements entered into by parties to litigation, and approved by the court, will bind all non-parties in other State or Federal litigation. This provision will add meaningful protection to parties entering confidentiality agreements and, along with other components of the proposed rule, will aid in reducing the burdens of excessive pre- production document review.

Unlike other Federal court rules, any proposed rule that modifies an evidentiary privilege must be approved by Congress pursuant to the Rules Enabling Act. The modification of a privilege is an undertaking not to be approached lightly, and the process that resulted in proposed Rule 502 was thorough and thoughtful. It has resulted in widespread approval of the proposed rule from the bench and bar at both the State and Federal level.

I urge all Senators to join Senator Specter and me to pass this proposal and take a positive step toward modernizing and improving the Federal Rules of Evidence.

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

Mr. President, today, I have joined with Senator Cornyn to reintroduce the ``Openness Promotes Effectiveness in our National Government Act--or the OPEN Government Act--the first major reform to the Freedom of Information Act, FOIA, in more than a decade. The Senate passed this historic FOIA reform legislation, S. 849, before adjourning for the August recess. But, sadly, this measure has been stalled in the House Oversight and Government Reform Committee for several months, preventing these long-overdue FOIA reforms from being enacted into law.

Despite the unfortunate delay of this bill, I remain deeply committed to enacting FOIA reform legislation this year. Because time is of the essence, I am requesting that this legislation be immediately placed on the Senate Calendar and that the Senate promptly take up and pass this bill by unanimous consent, so that it can be sent to the House.

The version of the bill introduced today includes ``pay/go'' language that has been requested by the House and eliminates the provision on citations to FOIA exemptions. After needlessly delaying the enactment of this bill for several months, I hope that the House Oversight and Government Reform Committee will promptly take up this important measure, so that the House can enact this legislation and send it to the President 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 requesters 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. 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 if it fails to meet the 20-day deadline, except in the case of exceptional circumstances as defined by the FOIA statute. To address pay/go concerns, the bill requires that these refunds come from annual agency appropriations.

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 requester. 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 pay/go concerns, the bill also requires that any attorneys' fees assessed under this provision be paid from 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. Tracking numbers are not required for FOIA requests that are anticipated to take 10 days or less to process. 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 critical to ensuring that all American citizens 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.

I commend the bill's chief Republican cosponsor, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year. I also thank the many cosponsors of this legislation for their dedication to open government and I thank the Majority Leader for his strong support of this legislation. I am also appreciative of the efforts of Senator Kyl in helping us to reach a compromise on this legislation, so that the Senate could consider and pass meaningful FOIA reform legislation.

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, OpenTheGovernment.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.

I hope that by once again passing this important FOIA reform legislation, the Senate will reaffirm 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 encourage all of my Senate colleagues, on

both sides of the aisle, to unanimously pass this historic bill.

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

Mr. President, today, I have joined with Senator Cornyn to reintroduce the ``Openness Promotes Effectiveness in our National Government Act--or the OPEN Government Act--the first major reform to the Freedom of Information Act, FOIA, in more than a decade. The Senate passed this historic FOIA reform legislation, S. 849, before adjourning for the August recess. But, sadly, this measure has been stalled in the House Oversight and Government Reform Committee for several months, preventing these long-overdue FOIA reforms from being enacted into law.

Despite the unfortunate delay of this bill, I remain deeply committed to enacting FOIA reform legislation this year. Because time is of the essence, I am requesting that this legislation be immediately placed on the Senate Calendar and that the Senate promptly take up and pass this bill by unanimous consent, so that it can be sent to the House.

The version of the bill introduced today includes ``pay/go'' language that has been requested by the House and eliminates the provision on citations to FOIA exemptions. After needlessly delaying the enactment of this bill for several months, I hope that the House Oversight and Government Reform Committee will promptly take up this important measure, so that the House can enact this legislation and send it to the President 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 requesters 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. 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 if it fails to meet the 20-day deadline, except in the case of exceptional circumstances as defined by the FOIA statute. To address pay/go concerns, the bill requires that these refunds come from annual agency appropriations.

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 requester. 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 pay/go concerns, the bill also requires that any attorneys' fees assessed under this provision be paid from 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. Tracking numbers are not required for FOIA requests that are anticipated to take 10 days or less to process. 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 critical to ensuring that all American citizens 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.

I commend the bill's chief Republican cosponsor, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year. I also thank the many cosponsors of this legislation for their dedication to open government and I thank the Majority Leader for his strong support of this legislation. I am also appreciative of the efforts of Senator Kyl in helping us to reach a compromise on this legislation, so that the Senate could consider and pass meaningful FOIA reform legislation.

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, OpenTheGovernment.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.

I hope that by once again passing this important FOIA reform legislation, the Senate will reaffirm 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 encourage all of my Senate colleagues, on

both sides of the aisle, to unanimously pass this historic bill.

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 vote that was scheduled for 2:15 occur at 2:30, and the 15 minutes between now and 2:30 be equally divided in the usual fashion.

Mr. President, as chairman of the Committee on the Judiciary, which has jurisdiction over our Nation's intellectual property laws, I feel compelled to comment on the intellectual property chapter of the United States-Peru Trade Promotion Agreement.

In the Trade Promotion Authority Act of 2002, Congress instructed the administration to negotiate agreements with other nations that, among other things, reflect a standard of protection for intellectual property ``similar to that found in United States law.'' In many respects, the intellectual property chapter of the Peru Trade Promotion Agreement meets that goal, for it will require Peru to raise its standards of protection for our intellectual property.

I am concerned, however, that some aspects of the intellectual property chapter prescribe the rules for protection so specifically that Congress will be hampered from making constructive policy changes in the future. The art of drafting the chapter is in raising intellectual property protections to a standard similar to ours, without limiting Congress's ability to make appropriate refinements to the intellectual property law in the future. The flexibility necessary for the proper balance is found in many provisions of the intellectual property chapter, for which I commend the U.S. Trade Representative. Other provisions, however, are too fixed and rigid, and may have the perverse effect of restricting the Congress's ability to make legitimate changes in United States law, while keeping our international commitments. I expect that in the future, with improved consultation between the Committee on the Judiciary and the Office of the United States Trade Representative, we can avoid these concerns.

Our trade promotion law also instructed the administration to negotiate agreements that provide strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property. This, too, is an objective I support. Under our laws, many such new technologies and consumer devices rely, at least in part, on fair use and other limitations and exceptions to the copyright laws. Our trade agreements should promote similar fair use concepts, in order not to stifle the ability of industries relying on emerging technologies to flourish.

Finally, a longstanding priority of mine has been the promotion of affordable, lifesaving medicines to address the public health problems afflicting many, primarily developing Nations--particularly those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics. The United States made such a commitment in the 2001 Doha Declaration; I was pleased that the U.S. Trade Representative reaffirmed this commitment in May and that Peru's rights to promote access to medicines is preserved in this agreement.

There is much in the intellectual property chapter of this free trade agreement that I support. I look forward to the Judiciary Committee's being consulted by the Office of the U.S. Trade Representative earlier, and more frequently, in the future, so that we can continue to improve on these issues.

Mr. President, I suggest the absence of a quorum and the time during the quorum call be equally divided.

Mr. President, earlier this year I introduced a bipartisan measure to address the emerging staffing needs of the Federal Judiciary, our coequal branch of government. This bill responds to discrete situations in five States regarding temporary judgeships. In May, the Judiciary Committee voted unanimously to report this bill. It is now December. That is a delay of over 6 months. This sustained delay can be attributed to a ``hold'' by a single Republican Senator.

I am glad that this hold has finally been lifted so that we can proceed. I am delighted that this bipartisan bill has finally been approved after such a needless delay. Had it been cleared for consideration earlier, the House could have acted before the Thanksgiving recess and the matter could be law. Instead, our proposal still needs to be considered by the House and presented to the President in order to take effect.

In order to address fluctuations in a court's caseload, Congress can authorize a judgeship on a temporary basis. These temporary fixes do not undermine the independence that comes with lifetime appointment to the judiciary because the judges who fill them are, in fact, appointed for life, like all Federal judges. The positions are temporary in the sense that when they expire the next vacancy in the jurisdiction is not filled, and the extra judgeship expires.

Last Congress, two of these needed temporary judgeships were allowed to expire. That was regrettable. One was in Nebraska and the other in California. That was unfortunate since they continue to have high case loads. This legislation restores the status quo in these busy districts by reauthorizing these two temporary judgeships. I know that Senators Feinstein, Boxer, Nelson and Hagel have been concerned about these caseloads, and thank them for working with me and for cosponsoring and supporting this bill to restore those judgeships.

In addition, temporary judgeships in three other districts are close to expiration. Caseloads in Ohio, Hawaii and Kansas remain at a high level, and allowing their temporary judgeships to lapse would put a serious strain on courts in those jurisdictions. This legislation would extend each of the five temporary judgeships for 10 years. This will allow Congress some flexibility with regard to future judgeship needs. Senator Brownback has expressed his concerns about this to me, as has Mr. Regula in the House. I thank Senators Inouye, Akaka, Roberts, Brownback, Voinovich and Brown for cosponsoring and supporting this bill to extend those judgeships.

Next year, I will work with my colleagues on both sides of the aisle to address judgeship needs in a comprehensive way. Indeed, I have asked six Senators who are members of the Judiciary Committee, three Democratic Senators and three Republican Senators, to serve as a task force and report a proposal to Senator Specter and me before the end of the year. I have asked Senator Schumer and Senator Sessions to head this task force, and look forward to their report next month.

The five districts affected by this bill, however, cannot wait until next year for action on this extension or their temporary judgeships may well expire in the interim. This legislation will act as a ``patch,'' allowing these districts to effectively operate until we are able to determine what additional judgeships are needed throughout the Federal judiciary.

The measure is supported by the Judicial Conference of the United States, and I thank my colleagues for moving this legislation.

Mr. President, as the Senate begins its final work period of the year, I wish to thank those members of the Judiciary Committee who have been cooperative and who have worked so hard throughout this year. Much has been accomplished. But much can still be done. We reported and the Senate passed an important privacy measure, the Identity Theft Enforcement and Restitution Act, S. 2168, just before the Thanksgiving recess. I urge the House to adopt it without delay. In addition, the Senate again passed our copyright bill to protect vessel hull designs, S. 1640, which I hope will also be adopted by the House.

Months ago we reported and passed an important court security bill, S. 378, and Freedom of Information Act reform legislation, S. 849. I believe that we have resolved differences raised by the House and should be able in the short time remaining to us this year to have the Senate reconsider these measures in slightly modified form, pass them by unanimous consent, and have the House endorse them, as well.

I would like to see us consider and pass important matters the House has passed and sent to us. The Free Flow of Information Act, H.R. 2102, is on the Senate calendar. It would provide protection to first amendment values by establishing a Federal privilege and procedure for considering claims of press protection. For the first time, this year the Judiciary Committee reported a similar bill, S. 2035, and we did so on a bipartisan basis. We should proceed to enact this legislation into law.

Another important matter sent to us from the House that I would hope we could enact before adjourning this year is one on which we have worked for some time, the Employment Non-Discrimination Act, H.R. 3685. We also have before us a House-passed version of the Second Chance Act, H.R. 1593. While it does not include every provision I would have liked to incorporate, we should nonetheless proceed to enact this legislation.

I urge the Republican Senator who has a hold on the bill to extend temporary judgeships around the country, S. 1327, to remove this hold so that we can provide the relief needed in our Federal judiciary in Kansas, Ohio, Nebraska, California, and Hawaii. Enacting court security legislation will likewise require the relinquishing of a Republican hold. Another matter stalled since this summer by a Republican hold has been the Emmett Till Unsolved Civil Rights Crime Act, S. 535. I have made statements to the Senate about these consensus measures before. I hope that with the year rapidly ending, the Republican Senator holding up these worthwhile matters will reconsider the opposition and allow bills supported by an overwhelming, bipartisan majority of the Senate to pass.

A number of other measures reported by the Judiciary Committee have been delayed by Republican holds too. If it is not possible to move these measures this month, I urge the Senate to take up and pass these bills when it begins its second session in January. One such bill is the War Profiteering Prevention Act, S. 119, which was reported by the committee in April. It would provide a significant new tool for Federal law enforcement to combat the scourge of war profiteering, and it is needed now more than ever, given the ongoing reports of rampant fraud, waste, and abuse in Iraq. Another is the School Safety and Law Enforcement Improvements Act, S. 2084, which we developed in response to the tragedy at Virginia Tech.

When we return next year, we will have the opportunity to consider and enact patent reform legislation, the Leahy-Hatch Patent Reform Act of 2007, S. 1145. I hope that we will also make time to consider our comprehensive bipartisan data privacy bill, the Leahy-Specter Data Privacy and Security Act, S. 495, which we reported in May.

Next spring I hope we can turn to the Deceptive Practices and Voter Intimidation Prevention Act, S. 453, which the committee reported this fall, and our bipartisan Leahy-Cornyn Public Corruption Prosecution Improvements Act, S. 1946, that adds teeth to our ethics reforms.

These are just some of the matters on which the Judiciary Committee has been hard at work this year. We could not have accomplished what we have without the contributions of our members. I want, in particular, to commend our newest members, Senators Cardin and Whitehouse, for their exceptional work. They have initiated legislative efforts, chaired important hearings, and been full partners in the work of the committee.

I would also like to thank and commend Senator Durbin for chairing our newest subcommittee, the Subcommittee on Human Rights and the Law, and for making it one of the most active and productive subcommittees we have. Senator Durbin has originated genocide accountability and child soldier accountability legislation, trafficking in persons legislation, and war crimes legislation, all in rapid succession. He has made the Human Rights Subcommittee into what we hoped it would be, a vehicle to focus our attention on fundamental aspects of what makes us all Americans. We all owe him a debt of gratitude.

Of course, we would not be nearly as far along in our work without the help of our Republican members, led by Senator Specter. We have proceeded with significant bipartisan legislation on privacy, press shield, patents, FOIA, public corruption, and crime. Currently we are working together to improve the FISA legislation about to be considered by the Senate by exploring whether we can adopt an amendment that will increase accountability through the procedural device of substitution, rather than a blanket grant of retroactive immunity for the warrantless wiretapping of Americans that took place from 2001 through 2007. Senator Specter and I joined to seek to restore the great writ of habeas corpus but, despite support by a majority of the Senate, we were stymied by a Republican filibuster. Likewise, we have joined to achieve majority support for voting rights for the District of Columbia only to be blocked this year by another Republican filibuster.

I hope that as we enter these last few weeks of the year, we are allowed to

make progress on the matters I have outlined here today and that the obstruction that has stalled our further progress will not be continued. Let us move forward together in the best interest of the American people. Any Senator can prevent action on an item in these waning days of the session. There is no secret or magic about that. The question for Senators this month is whether they are willing to put aside minor differences and partisan agendas to join with us in making progress and moving forward.

I yield the floor.

Mr. President, as the Senate begins its final work period of the year, I want to thank those members of the Judiciary Committee who have been working so hard throughout this year in helping us fulfill our duties with respect to nominations.

Given the work of the Senators serving on the Judiciary Committee, the Senate is in position to confirm 40 judicial nominees for lifetime appointments to the Federal bench this year, including 6 more of this President's circuit court nominees.

The Senate has already acted to confirm 36 lifetime judicial appointments. Remaining on the Senate Executive calendar are the nominations of John Daniel Tinder to the Court of Appeals for the Seventh Circuit, Amul R. Thapar to the Eastern District of Kentucky, Joseph Normand Laplante to the District of New Hampshire, and Thomas D. Schroeder to the Middle District of North Carolina. When they are confirmed, and with the cooperation of Senators they can be confirmed this month, 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, we are proceeding on vacancies before they arise in some cases.

When we conclude our work on judicial nominations this year, we will have exceeded the totals in 2004, 2005, or 2006 when a Republican-led Senate was considering this President's nominees. We are exceeding the totals confirmed in 1996, 1997, 1999 and 2000, when a Republican-led Senate was considering President Clinton's nominees. We are even exceeding the totals in 1989 and 1993 when a Democratic-led Senate was considering President Clinton's nominees. This year's total will be almost two dozen more confirmations than were achieved during the 1996 session when Republicans refused to proceed to confirm any of President Clinton's circuit court nominations.

We continue to make progress on circuit court nominations. The six circuit court nominees confirmed this year matches the total circuit court confirmations for 2001. We will have exceeded the circuit court totals achieved in 2004 when a Republican-led Senate was considering this President's circuit nominees; in 1983, when a Republican-led Senate was considering President Reagan's nominees; in 1993, when a Democratic-led Senate was considering President Clinton's nominees; and, of course, the 1996 session during which a Republican-led Senate did not confirm a single one of President Clinton's circuit nominees the entire session.

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. To reward me for reaching out again and extending the olive branch to him, this President responded not by replying to my letter but by a much ballyhooed partisan speech before the Federal Society annual dinner.

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 both respected Virginia Senators, 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.

In addition, we have succeeded in dramatically lowering vacancies and, in particular, circuit 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.

Of the remaining vacancies, 20--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 8, nearly half of them. Of the 14 circuit court vacancies, 4--about one-third-- are without a nominee. If the President would 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 vacancies without any nominee, the President has violated the timeline he set for himself at least 12 times--12 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 13 times in connection with the nominations he has made. That would mean that with respect to approximately 46 vacancies, the President is out of compliance with his own rule more than half of the time.

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

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

Mr. President, I am pleased that we can take a break from the tired, partisan sniping from the other side of the aisle. With the consideration of this nomination the Senate continues making progress confirming judicial nominations. The complaints we hear more and more loudly as we approach an election year ring hollow.

The Judiciary Committee has now reached a milestone by agreeing to report 40 nominations for lifetime appointments to the Federal bench 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.

Today we consider one of the nominations reported this week. Reed Charles O'Connor has been nominated to fill a vacancy in the Northern District of Texas. Reed is well known to many of us on the Judiciary Committee as he has been on detail for the last two years to serve as Senator Cornyn's counsel on the committee and before that with the Republican staff of the committee. Before that, Reed spent a year on detail with the general counsel's office of the Executive Office of United States Attorneys. With his confirmation, Reed will return home to Texas, where he previously served as an Assistant U.S. Attorney for the Northern District of Texas and before that as an Assistant District Attorney in Tarrant County District Attorney's Office in Fort Worth. Born in Houston, Reed graduated from the University of Houston in 1986 and the South Texas College of Law in 1989.

I thank Senator Cornyn and Senator Hutchison for their consideration of this nomination and Senator Whitehouse for chairing his confirmation hearing.

When we confirm the nomination we consider today, the Senate will have confirmed 36 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. It is 19 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 136 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 46 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 vacancies that arose at the beginning of the 110th Congress and throughout the 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 about half what they were at the end of President Clinton's term, when Republican pocket filibusters allowed judicial vacancies to rise to top 100 before being left at 80, 26 of them for circuit courts.

This week, while the White House was complaining about nominations, I was sending a letter to the President 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.

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

I congratulate Reed and his family on his confirmation today.

Mr. President, I am pleased that the Senate has taken an

important step to combat identity theft and to protect the privacy rights of all Americans by passing the Leahy-Specter Identity Theft Enforcement and Restitution Act of 2007. This bipartisan cyber crime bill will provide new tools to Federal prosecutors to combat identity theft and other computer crimes. Today's prompt action by the Senate brings us one step closer to providing these much-needed tools to Federal prosecutors and investigators who are on the front lines of the battle against identity theft and other cyber crimes.

I thank Senator Specter, who has been a valuable partner in combating the growing problem of identity theft for many years, for joining with me to introduce this important privacy bill. I also thank Senators Durbin, Grassley, Schumer, Bill Nelson, Inouye, Stevens and Feinstein for joining with us as cosponsors of this important legislation.

I commend Senators Biden and Hatch for their important work in this area. I am pleased that several provisions that they have drafted to further strengthen this cyber crime legislation will be included in this bill, and that with those additions, they have also cosponsored it.

Senator Specter and I have worked closely with the Department of Justice in crafting this bill and the Leahy-Specter Identity Theft Enforcement and Restitution Act has the strong support of the Department of Justice and the Secret Service. This bill is also supported by a broad coalition of business, high tech and consumer groups, including Microsoft, Consumers Union, the Cyber Security Industry Alliance, the Business Software Alliance, AARP and the Chamber of Commerce.

The Identity Theft Enforcement and Restitution Act takes several important and long overdue steps to protect Americans from the growing and evolving threat of identity theft and other cyber crimes. First, to better protect American consumers, our bill provides the victims of identity theft with the ability to seek restitution in Federal court for the loss of time and money spent restoring their credit and remedying the harms of identity theft, so that identity theft victims can be made whole.

Second, because identity theft schemes are much more sophisticated and cunning in today's digital era, our bill also expands the scope of the Federal identity theft statutes so that the law keeps up with the ingenuity of today's identity thieves. Our bill adds three new crimes-- passing counterfeit securities, mail theft, and tax fraud--to the list of predicate offenses for aggravated identity theft. And, in order to better deter this kind of criminal activity, our bill also significantly increases the criminal penalties for these crimes. To address the increasing number of computer hacking crimes that involve computers located within the same State, our bill also eliminates the jurisdictional requirement that a computer's information must be stolen through an interstate or foreign communication in order to federally prosecute this crime.

Our bill also addresses the growing problem of the malicious use of spyware to steal sensitive personal information, by eliminating the requirement that the loss resulting from the damage to a victim's computer must exceed $5,000 in order to federally prosecute this offense. The bill also carefully balances this necessary change with the legitimate need to protect innocent actors from frivolous prosecutions, and clarifies that the elimination of the $5,000 threshold applies only to criminal cases. In addition, our bill addresses the increasing number of cyber attacks on multiple computers, by making it a felony to employ spyware or keyloggers to damage 10 or more computers, regardless of the aggregate amount of damage caused. By making this crime a felony, the bill ensures that the most egregious identity thieves will not escape with minimal punishment under Federal cyber crime laws.

Lastly, our bill strengthens the protections for American businesses, which are more and more becoming the focus of identity thieves, by adding two new causes of action under the cyber extortion statute-- threatening to obtain or release information from a protected computer and demanding money in relation to a protected computer--so that this bad conduct can be federally prosecuted. In addition, because a business as well as an individual can be a prime target for identity theft, our bill closes several gaps in the federal identity theft and the aggravated identity theft statutes to ensure that identity thieves who target a small business or a corporation can be prosecuted under these laws. The bill also adds the remedy of civil and criminal forfeiture to the arsenal of tools to combat cyber crime and our bill directs the United States Sentencing Commission to review its guidelines for identity theft and cyber crime offenses.

The Identity Theft Enforcement and Restitution Act is a good, bipartisan measure to help combat the growing threat of identity theft and other cyber crimes to all Americans. Just this week, FBI Director Robert Mueller reminded all Americans that cyber threats will continue to grow as our Nation becomes more dependent upon high technology. This carefully balanced bill protects the privacy rights of American consumers, the interests of business and the legitimate needs of law enforcement. This privacy bill also builds upon our prior efforts to enact comprehensive data privacy legislation. The Leahy-Specter Personal Data Privacy and Security Act, S. 495, which Senator Specter and I reintroduced earlier this year, would address the growing dangers of identity theft at its source--lax data security and inadequate breach notification. Protecting the privacy and security of American consumers should be one of the Senate's top legislative priorities and I urge the majority leader to take up that measure at the earliest opportunity.

Again, I thank the bipartisan coalition of Senators who have joined Senator Specter and me in supporting this important privacy legislation, as well as the many consumer and business groups that support this bill. I ask unanimous consent that a copy of a support letter that I have received from the Chamber of Commerce regarding this bill be printed in the Record.