Floor Statements

Today, I am partnering with Senator Cornyn in another of our bipartisan efforts to improve the lives of Americans through effective and efficient government. The bill we are introducing, the ``Protecting American Goods and Services Act of 2005,'' will strengthen our ability to combat the escalating problem of counterfeiting worldwide. In order to effectively fight intellectual property theft, we need stiff penalties for counterfeiters and those who are caught with counterfeit goods with the intent to traffic their false wares. Ours is a short bill--indeed, it is only four pages long--but it will have global implications in the fight against piracy.

Counterfeiting is a growing problem that costs our economy hundreds of billions of dollars every year and has been linked to organized crime, including terrorist organizations. According to the International Anti-Counterfeiting Coalition, counterfeit parts have been discovered in helicopters sold to NATO, in jet engines, bridge joints, brake pads, and fasteners in equipment designed to prevent nuclear reactor meltdowns. The World Health Organization estimates that the market for counterfeit drugs is about $32 billion each year.

Several years ago, Senator Hatch joined me in sponsoring the ``Anti- counterfeiting Consumer Protection Act of 1996,'' which addressed counterfeiting by amending several sections of our criminal and tariff codes. That law made important changes, particularly by expanding RICO, the federal anti-racketeering law, to cover crimes involving counterfeiting and copyright and trademark infringement. Then, as now, trafficking in counterfeit goods hurts purchasers, state and federal governments, and economies at every level.

Perhaps most disturbingly, the U.S. Customs Service reports that terrorists have used transnational counterfeiting operations to fund their activities: The sale of counterfeit and pirated music, movies, software, T-shirts, clothing, and fake drugs ``accounts for much of the money the international terrorist network depends on to feed its operations.''

Last year, as in years past, I worked with Senator Allen on an amendment to the Foreign Operations bill that provides the State Department with vital resources to combat piracy of U.S. goods abroad. The bill we ultimately passed included $3 million for this important purpose. Yet more work both at home and abroad remains. When you consider that the economic impact of tangible piracy in counterfeit goods is estimated to be roughly $350 billion a year and to constitute between 5 percent and 7 percent of worldwide trade, a few million dollars is a worthwhile investment.

We have certainly seen how this form of theft touches the lives of hard-working Vermonters. Burton Snowboards is a small company, whose innovation has made it an industry leader in snowboarding equipment and apparel. Unfortunately, knock-off products carrying Burton's name have been found across the globe. Vanessa Price, a representative of Burton, testified about counterfeiting at the Judiciary Committee's March 23, 2004, hearing on this topic. In addition to learning about the economic costs of counterfeiting, I asked her after the hearing about the risks posed to consumers by these goods. Her answer was chilling: ``In the weeks since my Senate testimony, I discovered a shipment of counterfeit Burton boots for sale through a discount sports outfit . . . After examining the poor quality of the counterfeit boots, we determined that anyone using the boots for snowboarding risks injury due to a lack of reinforcement and support in the product's construction.''

Customers and businesses lose out to counterfeiters in other ways, too. SB Electronics in Barre, Vt. has seen its capacitors reverse engineered and its customers lost to inferior copycat models. Vermont Tubbs, a furniture manufacturer in Rutland, has seen its designs copied, produced offshore with inferior craftsmanship and materials, and then reimported, so that the company is competing against cheaper versions of its own products. And Hubbardton Forge in Castleton, Vt. has seen its beautiful and original lamps counterfeited and then sold within the United States at prices--and quality--far below their own. This is wrong. It is unfair to consumers who deserve the high quality goods they think they are paying for, and it is unfair to innovators who play by the rules and deserve to profit from their labor.

The bill that I am introducing today with Senator Cornyn will help to combat this growing scourge.

The bill will criminalize the possession of counterfeit goods with the intent to sell or traffic in those goods, and it expands the definition of ``traffic'' to include any distribution of counterfeits with the expectation of gaining something of value--criminals should not be able to skirt the law simply because they barter illegal goods and services in exchange for their illicit wares. Finally, the bill will criminalize the importation and exportation of counterfeit goods, as well as of bootleg copies of copyrighted works into and out of the United States.

By tying off these loopholes and improving U.S. laws on counterfeiting, we will be sending a powerful message to the criminals who belong in jail, and to our innovators.

Will the Senator from Delaware yield?

I absolutely agree with the Senator from Delaware. We have a lot of bipartisan legislation that is not even being looked at. The NOPEC bill is one, with Senator DeWine, Senator Kohl, myself, and others. We looked at the fact that gasoline prices have gone up nearly 50 percent in the last 5 years alone, and yet we have no constraints on artificial prices being set by the NOPEC countries here in the United States. It takes more than holding hands with Saudi princes to bring down prices. We have to ask for real efforts. This is legislation that could pass. This is legislation that could pass. Put some teeth in it. Instead of holding hands, we could hold court actions, and we would be somewhere ahead. That is just one area.

The Senator from Delaware mentioned the asbestos bill. Senator Specter and I have worked on it on a totally bipartisan fashion with Senators on both sides of the aisle. We have a bill that could pass. It would take some effort on the floor. It would take a week or so, but it could pass. Victims of asbestosis would be helped. Companies would have some idea what their costs are. The economy would dramatically improve. That bill is going to die if the nuclear option goes through because we will lose the ability to move bipartisan legislation.

We have law enforcement legislation at a time when most of the law enforcement grants, such as the COPS grants and whatnot, are being cut by the administration. A lot of Members on both sides of the aisle are trying to find a way to get that money back to our police officers, the money being cut. We cannot have a debate on it.

This is going to take up--you confirmed 208 judges; blocked, actually, 5. I have been here 31 years. I don't believe anyone has had a record that good. Certainly no baseball team ever had a record that good. The President ought to declare victory on that, having done so much better than all but about three Presidents of recent memory, and let us get on with things. Bring down the price of gasoline, for one; that is affecting the American people.

Mr. President, today we continue to debate the Republican Leader's bid for one-party rule through his insistence to trigger the ``nuclear option.'' I spoke yesterday about this misguided effort to undercut the checks and balances that the Senate provides in our system of Government, and about the need to protect the rights of the American people, the independence and fairness of the Federal courts, and minority rights here in the Senate.

I started my statement yesterday by commending the chairman of the Senate Judiciary Committee. Today I want to add and thank a number of Senators who participated throughout the debate yesterday for their contributions: the Democratic leader; the assistant Democratic leader and senior Senator from Illinois; the senior Senator from Washington; both Senators from California; the senior Senator from New York; the senior Senator from Montana; the senior Senator from Minnesota, the senior Senator from Massachusetts and Senator Dorgan.

I noted yesterday that this is a setting in which Democratic Senators alone will not be able to rescue the Senate and our system of checks and balances from the breaking of the Senate rules that the Republican leader is planning to demand. If the rights of the minority are to be preserved, if the Senate's unique role in our system of Government is to be preserved, it will take at least six Republicans standing up for fairness and for checks and balances. I believe that a number of Republican Senators know in their hearts that this nuclear option is the wrong way to go. I know that Republican Senators with whom I have been privileged to serve know better. I hope that more than six Republican Senators will withstand the political pressures being brought to bear upon them and do the right thing, the honorable thing. I have to believe that enough Republican Senators will put the Senate first, the Constitution first, and the American people first, and withstand those political pressures when they cast their votes.

Today, as we continue this discussion, I note that the Senate remains fixated on a handful of the President's most extreme and divisive judicial nominees. The Democratic leader rightly said recently that the current tally is 208 to 5. The Senate has confirmed 208 of President Bush's judicial nominees, and we are resisting action on five.

I included in the Record yesterday my statement laying out my reasons for opposing the nomination of Priscilla Owen. As we continue to debate a nomination that was rejected by the Judiciary Committee in 2002 and on which the Senate engaged in extensive debate in 2004, the Senate is neglecting other matters. That is the choice made by the Republican leadership, in insisting on this confrontation and upcoming conflict.

The Democratic leader is right when he urges the Senate to ``put people over

partisanship'' and to work to reduce gas prices, make health care more affordable, create new and better jobs and give our veterans and their families the support they need and deserve.

Among the matters being neglected in order to engage in this political exercise is consideration and passage of the NOPEC bill, S. 555. This is bipartisan legislation. Our lead sponsors are Senator DeWine and Senator Kohl. With the increase of gasoline prices by almost 50 percent during the Bush Presidency, with Americans having to pay so much more each week to get to work, drive their kids to school and just to get around, the Republican leadership of the Senate is ignoring a substantial burden on American working families.

This week, the national average price for a gallon of regular gasoline was $2.18. In Vermont, gas is slightly less expensive, but still a hefty $2.15 per gallon. Just a year ago the price was $1.92. When President Bush took office it was $1.46 a gallon.

The artificial pricing scheme enforced by OPEC affects all of us, and it is especially tough on our hard-working Vermont farmers. Rising energy expenses can add thousands of dollars a year to the costs of operating a 100-head dairy operation, a price that could mean the difference between keeping the family business open for another generation or shutting it down.

With summer coming, many families are going to find that OPEC has put an expensive crimp in their vacation plans. Some are likely to stay home; others will pay more to drive or to fly so that they can visit their families or take their well-deserved vacations.

Americans deserve better, and if the White House will not act to abate this crisis, it is time for Congress to act. It is past the time to hold hands and exchange kisses with Saudi princes who artificially inflate the price of gasoline. The President's ``jawboning'' with his Saudi friends has proven unsuccessful. It is now time to act, and the Senate, under the Republican majority leader, is choosing instead to revisit a handful of extreme judicial nominations that have already been considered and rejected by this body.

The production quotas set by OPEC continue to take a debilitating toll on our economy, our families, our businesses, our industry and our farmers. Last year and again last month, the Judiciary Committee voted to report favorably to the full Senate the bipartisan NOPEC bill. Our legislation would apply America's antitrust laws to OPEC's anticompetitive cartel. Why not give the Justice Department the clear authority to use our antitrust laws against the anti-competitive, anti- consumer conduct in which they have engaged? We should take up that bill, debate it and pass it without further delay. The many days of the Senate's time allocated to the provocative ``nuclear option'' comes at the expense of our taking up the NOPEC bill on behalf of the American people.

Another consequence of this fixation on the effort to increase the White House's political power, and to aid this President's attempt to pack the Federal courts, is the loss in focus and sacrifice of progress we have been making on asbestos reform. For more than 3 years I have been working on asbestos reform to provide compensation to asbestos victims in a fair and more expedited fashion.

Chairman Specter and I have worked closely on S. 852, the FAIR Act. It is pending before the Judiciary Committee. We are in the midst of our markup sessions. That effort was scheduled for yesterday and today, but the Chairman had to cancel our consideration yesterday in light of this debate and it had to be cut short today. That is most unfortunate. We have been working hard and in good faith to achieve bipartisan legislative progress on this issue. We have done so despite criticism from many quarters. That bipartisan effort is now being retarded by this continuing debate.

There are many, many items that need prompt attention. I understand that the Armed Services Committee last week completed its work on the Department of Defense Authorization bill. Why the Republican leadership is delaying Senate consideration of the Defense Authorization bill I do not understand. At a time when we have young men and women in combat zones and when the home front is being affected by recently recommended base closings, I would have thought the Defense Authorization bill would be a priority.

Let me mention just one other set of legislative issues. Last week was Police Week. On Sunday I was privileged to attend the National Peace Officers' Memorial Service commemorating the service and sacrifice of 154 public safety officers killed in the line of duty over the last year. I worked in a bipartisan way with Senators Specter, Biden, Hatch, Brownback, Cornyn, DeWine, Durbin, Feingold, Feinstein, Kennedy, Kohl, Kyl, Schumer, Salazar and Collins to introduce and pass S. Res. 131, which recognized May 15 as Peace Officers Memorial Day and called upon the entire Nation to join in honoring our law enforcement officers. The President spoke movingly at the ceremony held here on Capitol Hill on that day of remembrance.

This week we should honor our law enforcement officers with supportive legislative action. In the past we have worked in a bipartisan way to improve the Public Safety Officers Benefit Program and to provide educational benefits for the families of State and Federal officers who have been killed in the line of duty. Sadly, the administration has not yet implemented the latest round of improvements to the Public Safety Officers Benefit Program that we enacted last year. I have urged a Judiciary Committee hearing on this delay, as well as on the general state of police officer safety. The Fraternal Order of Police, the International Association of Chiefs of Police, the National Association of Police Organizations, the National Sheriffs' Foundation and other law enforcement organizations are all interested in working with us to ensure that the Justice Department produces comprehensive regulations that effectively create a more user-friendly PSOB Program.

In addition, we should be considering the Social Security Fairness Act, S. 619, the bill that Senators Collins, Boxer, Feinstein and a number of us have cosponsored over the years to protect the Social Security and retirement of police officers. Those on the front lines protecting all of us from crime and violence should not see their Social Security benefits reduced because they have historically participated in separate retirement benefit programs. That needs fixing and this week would be an appropriate one to take that Senate action.

These are merely examples of some of the business matters the Republican majority of the Senate has laid aside.

Mr. President, reserving the right to object, and I shall not, but I would also remind everybody that the distinguished Democratic leader has said he had no objection to going to--this is a court of appeals judge--Thomas Griffith, of Utah, to be U.S. circuit judge for the District of Columbia circuit. While Mr. Griffith is one I would vote against, for reasons I have already stated, from the nose count I have, he would easily be confirmed.

I would also note that I have total agreement with the distinguished senior Senator from Nevada, who said he would be willing to do this in a relatively short time. I just mention that because I would not want anybody to think this is a person being held up, even though some of us object to him.

Mr. President, I think the suggestion the Senator from Pennsylvania made was a good one. Whatever time he uses beyond the 40 minutes, we get an equal amount of time here. That way we would also know where we stand. The distinguished Senator from Nevada--

Mr. President, how much time is available to the Senator from Vermont?

I thank the Presiding Officer.

It is my understanding the distinguished Senator from Pennsylvania did not use extra time?

Mr. President, I recommend all the Republicans and Democrats listen to the speech given by the distinguished Senator from Pennsylvania. I said to him earlier this morning if it were he and I who were allowed to work this out, we could work it out probably in less than an hour. I said the same thing to the President and to our two leaders.

Hopefully everyone understands the significance of this debate and what the Republican leader, the majority leader is doing. He has decided to trigger the nuclear option. That is what it is. This nuclear option is something any Senate majority could have done any time over the past 50 years. It boils down to the Republican Senate leader declaring the Senate rules governing filibusters are out of order.

The nonpartisan Senate Parliamentarian has indicated that would violate the Senate rules. It would. The nonpartisan Congressional Research Service has studied this and concluded it is unprecedented. Why? Because it amounts to breaking the rules.

We are talking about judging whether nominees will be fair and impartial judges who will follow the law and the majority is willing to break the rules to do that. When you have a slim majority and are willing to use parliamentary brute force, if you want to break the rules, you can. It does not make it right. It makes it wrong, but you can do it.

The American people ought to recognize this for what it is, an abuse of power to advance a power grab. It is an effort by the White House and the Republican Senate majority to undercut the checks and balances of the Senate. They intend to use majority power to override the rights of the minority.

Actually, it is not an isolated effort. It is part of a sustained effort by this administration and partisan operatives in the Congress to consolidate power in one branch, the executive branch, and ignore our constitutional history of three separate branches acting as checks and balances on each other. It is an effort at one-party rule. It undercuts the rights of the minority in the Senate, it undermines the role of the Senate as a check on the executive, and it leads to a Republican rubberstamp on a less independent judiciary.

The constitutional protections of the American people are at stake in this debate, not just someone's political future, the constitutional protections of the American people. At stake are the protections provided for the American people by the judicial branch against overreaching by the political branches; by the Senate against an aggressive executive branch, and by the minority against the tyranny of the majority.

As this debate begins, I urge the American people to be involved because it is their rights that are at stake. It is the independence, fairness, and nonpartisan protection of the judiciary that protects their rights that is being threatened. It is a constitutional check that the Senate was intended by the Founders to keep the executive from acting like a king, that is being threatened by curtailing the rights of the minority.

This is an exercise in breaking the rules to change the rules. Note that as this debate begins, it begins in accordance with the Senate rules, including rule XXII, the longstanding rule the Republican majority intends to override by the end of this process by parliamentary brute force.

The Senate is now being threatened with a fundamental change through a self-inflicted wound. ``Master of the Senate'' author Robert Caro recalled an important chapter in the Senate and the Nation's history. Consider this and contrast it with what is happening here today.

When Senator Lyndon Johnson of Texas left the Senate, he was the most powerful majority leader in the history of this country. When he was elected Vice President with President Kennedy and he was preparing to leave the Senate, he told his protege and successor, Senate Mansfield of Montana, that he, Johnson, would keep attending the Democratic luncheons and help his successor as majority leader in running the Senate. Senator Mansfield said no, Vice President Johnson was no longer a Member of the Senate, but an officer of the executive branch and by means of that office was accorded the privilege of presiding over the Senate.

What a contrast Senator Mike Mansfield's respect for the separation of powers and checks and balances is from those in power today. I say that as one who was privileged to serve here with Senator Mansfield.

Instead, this White House took an active role in naming the present Senate leadership and this White House regularly sends Vice President Cheney and

Karl Rove to Republican caucus luncheons to give the Republican majority its marching orders. What a difference from the days of Mike Mansfield and Lyndon Johnson.

The current Republican majority leader, who is my friend, announced that he intends to leave the Senate next year. He made no secret of his intent to run for the Republican nomination for President. With that in mind, he is apparently prepared to become the first majority leader in the history of the Senate whose legacy would be a significantly weakened Senate. Every other majority leader has left the Senate stronger than it was or at least as strong as it was, as a check and balance against an executive. This would be the first time it would be left weaker.

Many, unfortunately, on the other side--many but not all--are apparently ready to sacrifice the Senate's role in our constitutional system of checks and balances. It is my hope that our system of checks and balances will be preserved with a handful of Republican Senators voting their conscience and standing up to the White House and its pressure. I know the zealotry of the narrow special interest leaders who are demanding this mutilation of the Senate's character. I am one of many who have been the target of their brutal and spurious personal attacks.

My hope is that a number of the fine women and men of both parties with whom I am privileged to serve as a custodian of our Nation's liberties will act in the finest traditions of the Senate. One of their number has come to this floor in recent days to remind all Senators of senatorial profiles in courage. Sadly, it is that courage that will be necessary to avert the overreaching power grab now underway.

There have been other recent threats to our system of government. Republican partisans in the House, in a standoff with President Clinton, shut down the Government in 1995. A few years later, they impeached a popularly-elected President for the first time in our history. Fortunately, the Senate stood up and functioned as it was intended during that trial and rejected those efforts. I was privileged to be one of those who worked with both sides to make sure that trial ended the way it did.

In 2000, a divided nation saw an election decided by the successful litigation of the Republican Party and the intervention of a narrow activist decision of the Supreme Court to stop vote counting in Florida. Then we witnessed Senator Jeffords virtually driven out of the Republican caucus. We have seen an aggressive executive branch that has been aided by a compliant congressional majority.

If the Senate's role in our system of coequal branches of the Federal Government is to be honored, it is going to take Republican Senators joining others in standing up for the American people's rights, the independence of the judiciary, the rules of the Senate, and the rights of the minority.

During the last several days, we have seen the Democratic leader make offer after offer to head off this showdown. We have heard stirring speeches from Senator Byrd, Senator Inouye, Senator Kennedy, Senator Biden, Senator Baucus, Senator Murray, Senator Boxer, Senator Feinstein, and others, who have come to this floor to set the record straight. But this is a setting in which Democratic Senators alone will not be able to rescue the Senate and our system of checks and balances from the breaking of the Senate rules being planned. If the rights of the minority are to be preserved, if the Senate is to be preserved as the greatest of parliamentary bodies, it will take at least six Republicans standing up for fairness and for checks and balances.

Now I know from my own conversations that a number of Republican Senators know in their hearts this nuclear option is the wrong way to go. I know Republican Senators, with whom I have had the privilege to serve for anywhere from 2 years to more than 30 years, know better. I hope more than six of them will withstand the political pressures being brought upon them and do the right thing and the honorable thing, and that they will put the Senate first, the Constitution first, but especially the American people first. History and those who follow us will carefully scrutinize these moments and these votes. Those voting to protect the rights of the minority will be on the right side of history.

Like the senior Senator from Pennsylvania, I remember President Kennedy's publication of ``Profiles in Courage.'' Along with so many Americans, I remember reading about those Senators who stood up to their party to vote against the conviction of President Andrew Johnson. More recently, I witnessed the strength it took for my friend, Senator Mark Hatfield, a distinguished Republican, to cast a vote of conscience against amending the Constitution. He did it under intense and unfair pressures. I believe we are now seeing the current Senate leadership taking the Senate to another precipice. It will take the votes of independent and conscientious Republican Senators, such as Senator Hatfield, to prevent the fall.

The Framers of the Constitution warned against the dangers of factionalism undermining our structural separation of powers. Some in the Senate have been willing to sacrifice the historic role of the Senate as a check on the President in the area of nominations.

Under pressure from the White House, over the last 2 years we saw the former Republican chairman of the Senate Judiciary Committee lead Senate Republicans in breaking with longstanding precedent, in breaking the rules, even committee rule IV, which was put in there at the request of Republicans to protect minorities. But when the Republicans took the majority, they violated the rules, longstanding precedent and Senate tradition. With the Senate and the White House under control of the same political party, we have witnesses committee rules broken or misinterpreted away. The broken committee rules and precedent include the way that home-state Senators were treated, the way hearings were scheduled, the way the committee questionnaire was unilaterally altered, and the way the Judiciary Committee's own historic protection of the minority by rule IV was repeatedly violated. In the last Congress, the Republican majority of the Judiciary Committee destroyed virtually every custom and courtesy that used to help create and enforce cooperation and civility in the confirmation process. I ask unanimous consent to have printed in the Record a recent article from the Wall Street Journal noting some of these developments.

We suffered through 3 years during which Republican staff stole Democratic files off the Judiciary computer servers. It is as though those currently in power believe they are above our constitutional checks and balances and they can reinterpret any treaty, law, rule, custom, or practice. If they don't like it or they find it inconvenient, they set it aside. It was tragic that the committee that judges the judges did not follow its own rules but broke them to achieve a predetermined result.

It was through these means that divisive and controversial judicial nominees were repeatedly brought before the Senate in the last Congress. It was through these abuses that the majority acted as handmaidens to the administration to create confrontation after confrontation over controversial nominees. They dragged the judiciary, which should be above politics, into the political thicket and did so for partisan gain.

I applaud the Senator from Pennsylvania who has worked to bring us back in the Senate Judiciary Committee to following our rules in the comity that makes it work. I regret that filibusters have been necessary in the past 2 years. I wish Republicans would not have followed their years of secret holds and pocket filibusters of more than 60 of President Clinton's nominees, judicial nominees, and more than 200 of his executive nominees. I wish they would not have flipped the script once a Republican became President and dismembered the rules and traditions of the Judiciary Committee.

I have urged consultation and cooperation over the last 4 years. I had the privilege of chairing the Senate Judiciary Committee for 17 months with President Bush in the White House, and we confirmed 100 of President Bush's judicial nominees, including a number of controversial nominees, including some I was opposed to. I voted against them, but I made sure they got hearings.

The President and his enablers in the Senate cannot seem to take ``yes'' for an answer. The Senate has confirmed 208 of his judicial nominees and we are withholding consent on 5.

He rejects our advice, but he demands our consent. That is wrong, and that goes against the Constitution. The Constitution speaks of advice and consent, not order and rubberstamp.

What the White House ignores is that President Bush completed his first term with the third highest total of confirmed judges in our history--in our history--and more Federal judges on the courts than at any time in our history. The truth is, Senate Democrats have cooperated extensively in confirming more than 95 percent of this President's judicial nominees--208 of them.

George Washington, the most popular and powerful President in our history, was not successful in all of his judicial nominations. The Senate rejected President Washington's nomination of John Rutledge to be Chief Justice of the Supreme Court. For example. And certainly I would hope that the current President would not assume he stands higher in our history books than George Washington.

The truth is, in President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton's two terms, more than during the term of this President's father, and more than Ronald Reagan's first term when he had a Republican majority in the Senate. By last December, we had reduced judicial vacancies from the 110 vacancies I inherited in the summer of 2001 to its lowest level, lowest rate, and lowest number in decades, since President Ronald Reagan was in office.

Unfortunately, this President has chosen confrontation over cooperation. In fact, it is mid-May, and he has only sent one new nomination to the Senate all year. Im connection with that nomination, Democrats on the Judiciary Committee have written to the Chairman urging a prompt hearing. With the support of the nominee's home-state Senators, one a Democrat and one a Republican, the nomination of Brian Sandoval will be added to the long list of judicial confirmations.

But that leave 30 judicial vacancies without nominations. Back on April 11, the Democratic leader and I wrote to the President urging him to work with Senators of both parties to identify nominees for these 30 vacancies. To date, he has not responded. Instead he, his Vice President, his Chief of Staff and his spokesperson continue to prod the Senate toward triggering the nuclear option. I ask unanimous consent to have that letter printed in the Record.

When it comes to the judiciary, the independent judiciary, the branch of Government always looked at with most favor and most respect by Americans, wouldn't it be good if the President, in making his nominations, would act as a uniter, not as a divider? Instead, the President has acted as a divider, not a uniter. He has sent the Senate divisive and controversial nominees. When the Senate debates them and withholds consent, he stubbornly renominates them over and over again. Rather than work with us to find consensus nominees, which usually pass this Senate 100 to nothing, he disparages us and exploits the issue as a partisan matter.

Under our Constitution, the Senate has an important role in the selection of our judiciary. The brilliant design of our Founders established the first two branches of Government would work together to equip the third branch to serve as an independent arbiter of justice. As George Will once wrote: ``A proper constitution distributes power among legislative, executive and judicial institutions so that the will of the majority can be measured, expressed in policy and, for the protection of minorities, somewhat limited.''

The structure of our Constitution and our own Senate rules of self- governance are designed to protect minority rights and to encourage consensus. Despite the razor-thin margin of recent elections, the majority party is not acting in a measured way but in complete disregard for the traditions of bipartisanship that are the hallmark of the Senate. When these traditions are followed, I can tell my colleagues from 31 years of experience, the Senate works better, and the American people are better served. Instead, the current majority is seeking to ignore precedents and reinterpret longstanding rules to its advantage.

The practice of ``might makes right'' is wrong. The Senate's rules should not be toyed with like a playground game of King of the Hill, to be changed at the whim of any current majority.

The Senate majority leader seems intent on removing the one Senate protection left for the minority, the protection of debate in accordance with the longstanding tradition of the Senate and its standing rules. In order to remove the last remaining vestige of protection for the minority, the Republican majority is poised to break the Senate rules, violate the Senate rules, overturn the Senate rules, and end the filibuster by breaking those rules. They are intent on doing this--why?--to force through the Senate this President's most controversial and divisive judicial nominees.

As the Reverend Martin Luther King, Jr. wrote in his famous Letter From A Birmingham Jail:

Let us consider a more concrete example of just and unjust

laws.

An unjust law is a code that a numerical or power majority

group compels a minority group to obey but does not make

binding on itself. This is difference made legal. By the same

token, a just law is a code that a majority compels a

minority to follow and that it is willing to follow itself.

This is sameness made legal.

Fair process is a fundamental component of the American system of law. If we cannot have a fair process in these halls or in our courts, how will the resulting decisions be viewed? If the rule of law is to mean anything, it must mean that it applies to all equally. The rule of law must apply the same to Republicans and Democrats. The rule of law must apply the same to all Americans. And certainly the rule of law must apply on the floor of the U.S. Senate.

No man and no party should be above the law. That has been one of the strengths of our democracy. Our country was born in reaction to the autocracy and corruption of King George, and we must not forget our roots as a nation of both law and liberty. The best guarantee of liberty is the rule of law, meaning that the decisions of government are not arbitrary and that rules are not discretionary or enforced to help one side and then ignored to aid another.

Mr. President, nothing I will ever do in my life will equal the opportunity, the honor, the privilege to be one of the 100 serving in this Senate. But not one of this 100--who are privileged to serve at any given time to represent 280 million Americans--none of us owns the Senate. The Senate will be here once we leave. It is our responsibility to leave the Senate as strong as it was when we came in. It is our responsibility, our sworn responsibility, to leave the Senate the body that has always been a check and balance.

How can any Senator look himself or herself in the mirror if they weaken the Senate, if they allow the Senate to no longer be the check and balance it should be? Why would anyone want to serve here if they come to this body with that in mind?

James Madison, one of the Framers of our Constitution, warned in Federalist Number 47 of the very danger that is threatening our great Nation, a threat to our freedoms from within:

[The] accumulation of all powers legislative, executive and

judiciary in the same hands . . . may justly be pronounced

the very definition of tyranny.

That is what they are trying to do, put all the power into one hand. All of us should know enough of history to know we should not do that.

George Washington, our great first President, reiterated the danger in his famous Farewell Address to the American People:

The spirit of encroachment tends to consolidate the powers

of all the departments in one, and thus to create, whatever

the form of government, a real despotism.

Now, our freedoms as Americans are the fruit of too much sacrifice to have the rules broken in the Senate, especially to break them in collusion with the executive branch. What ever happened to the concept of separation of powers? We all give great speeches on the separation of powers. Don't just give the speeches, do not just talk the talk, let's walk the walk.

The effort to appoint loyalists to courts in the hope that they will reinterpret precedents and overturn the very laws that have protected our most fundamental rights as Americans is base and wrong. The American people deserve better than what we have seen with the destruction of rule after rule by a majority willing to sacrifice the role of the Senate as a check and balance in order to aid a President determined to pack the Federal courts. It is the courts themselves that serve as the check on the political branches. Their independence is critical and must be preserved.

Look at what we are talking about, Mr. President. We have confirmed 208 judges. We are saying no to five. Is this a judicial crisis that should allow the majority to destroy the Senate? The record of 208 confirmations and reduction of judicial vacancies to an historic low provide no basis on which to break the rules of the Senate. The Democratic leader's efforts to make additional progress demonstrate there is no reason for the majority to take the drastic and irreversible step of ending protection of the minority through the tradition of extended debate in the Senate.

The White House and Senate Republican leadership's campaign for the nuclear option seeks to end the role of the Senate serving as a check on the executive. That is so shortsighted. It is so wrong. It is so unjustified. We fought a revolution in this country to have a Constitution that is designed to have the Senate provide balance and act as a check.

I will have more to say about these important matters and about the nomination that the Judiciary Committee previously rejected and that the Senate has previously debated as we proceed over the next several days. There is one other aspect of this matter I need to mention. I will say this in my individual capacity as a Senator from Vermont, as a man of faith, as a man who cares deeply about this institution, our country, our Constitution, our first amendment and our constitutional provision that does not allow a religious test for those who serve.

Supporters of a power-hungry executive have gone so far as to seek to inject an unconstitutional religious test

into the debate. All Americans should fear this. They have characterized those who oppose the most extreme of the President's nominees as being against faith, against people of faith. They have called for mass impeachment of judges and other measures to intimidate the judiciary, to remove the independence of the judiciary. I commend the President for personally rejecting at least that demagoguery at a recent press conference. I wish he would go further and tell those making these charges and inflammatory claims to stop.

A Republican clergyman, Pat Robertson, said he believes Federal judges are ``a more serious threat to America than Al Qaeda and the September 11 terrorists'' and ``more serious than a few bearded terrorists who fly into buildings'' and ``the worst threat America has faced in 400 years--worse than Nazi Germany, Japan, and the Civil War.''

For shame. For shame. This is the sort of incendiary rhetoric that is paving the way to the nuclear option. It is wrong. It is destructive. Further, injecting religion into politics to claim a monopoly on piety and political truth by demonizing those you disagree with is not the American way.

As Abraham Lincoln has said:

I know that the Lord is always on the side of the right,

but it is my constant anxiety and prayer that I and this

nation should be on the Lord's side.

He was so right. We all would do well spending a little more time wondering whether we are on God's side and less time declaring infallibly that He is on ours.

Those driving the nuclear option engage in a dangerous and corrosive game of religious McCarthyism in which anyone daring to oppose one of this President's nominees is being branded as anti-Christian or anti- Catholic or against people of faith.

Dr. Dobson of Focus on the Family said of me, ``I do not know if he hates God but he hates God's people.''

I wonder every Sunday when I am at mass, what planet is this person from?

When Senator Hatch was attacked during his Presidential campaign on his religion, I came to his defense. When Senator Lott was under attack, Senators Jeffords and Specter spoke in his defense.

When they charge us with being against people of faith for opposing nominees, what are they saying about the 208 Bush judicial nominees whom Democrats have voted for and helped confirm? Are they saying the five we oppose are people of faith but the 208 we voted for are not? Are they by definition people without faith?

These kinds of charges, this virulent religious

McCarthyism, is fraudulent on its face. It is contemptible.

It is contemptible.

Chief Justice Rehnquist is right to refer to the Federal judiciary as the crown jewel of our system of government. It is an essential check and balance, a critical source of protection of the rights of all Americans, including our religious freedom.

Just this morning the distinguished senior Senator from Pennsylvania and the distinguished senior Senator from Illinois conducted a hearing in the Judiciary Committee where they heard the testimony of Judge Joan Lefkow of Chicago. She is the Federal judge whose mother and husband were murdered in their home. The hearts of all of us go out to her. She asked that we repudiate the gratuitous attacks on the judiciary, and I do so, again, here today. I ask those members of Congress who are so quick to take the floor and say let's impeach judges or let's condemn judges or specific judges, to stop it. Listen to what Judge Lefkow said:

In this age of mass communication, harsh rhetoric is truly

dangerous. Fostering disrespect for judges can only encourage

those that are on the edge, or on the fringe, to exact

revenge on a judge who ruled against them.

We should stop those kinds of speeches, whether it is on this floor or the other body. They are beneath, us, all of us.

I remember Justice Sandra Day O'Connor made a similar observation. I recently spoke with her and told her how much I appreciated that.

The Senator from Pennsylvania spoke about Benjamin Franklin. Let me reiterate. In September 1787, as the Constitutional Convention drew to a close, someone came up to Benjamin Franklin to ask whether all of the arduous work of drafting the Constitution produced a republic or a monarchy. Benjamin Franklin told them, ``A Republic, if you can keep it.''

We have fought world wars, a civil war, we have gone through elections, assassinations, changes in Government, we have gone through all these traumas, the Great Depression, and attacks on our soil. In all of it we have joined together to keep this Republic. We have kept our freedoms through checks and balances, checks and balances woven through our constitutional system so brilliantly by our Founders. Those checks and balances can easily be unthreaded and unwoven by the abuse of power. Let us hope that never happens. Remember, it can happen not just through big steps, it can happen through small steps.

This action that is being proposed to the Senate, the nuclear option, is a large step, a large abuse of power, a step with consequences we can only begin to imagine. It would be a vote for confrontation over consensus. I hope each of us will reflect on its consequences, and then, in the end, such a travesty will never befall the Senate.

Mr. President, how much time is remaining to the Senator from Vermont?

Mr. President, I see the distinguished deputy Democratic leader in the Chamber and I will yield the remainder of my time to the Senator from Illinois.

Mr. President, I come to the floor today to praise an extraordinary man, Paul Peck. I had the honor of meeting Mr. Peck through our mutual interest in the Smithsonian Institution.

Mr. Peck has been an effective proponent of the civic process. In 2002, Mr. Peck generously donated $2 million to enhance the National Portrait Gallery's presidential programs, allowing for educational resources related to the presidency. In the same year, the Portrait Gallery founded The Paul Peck Presidential Awards, the only awards in the United States to honor achievement in presidential service and portrayal. Last year, at the Third Annual Paul Peck Presidential Awards Ceremony, Mr. Peck gave a heartfelt and thought-provoking speech about the need for an increased awareness of American history and an increased level of civil participation in our country. Mr. President, I ask unanimous consent that Mr. Peck's remarks be printed in the Congressional Record.

The Smithsonian is truly fortunate to have benefited from the dedication and intelligence of Mr. Peck.

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

Mr. President, I believe under the order the Senator from Vermont has some time reserved.

I thank the Chair. I will use part of it.

I am voting for the supplemental, but I have grave misgivings about the President's policy in Iraq, the enormous strain it is putting on our Armed Forces, the horrific toll of the insurgency on innocent Iraqis, but especially the lack of a credible exit strategy.

We tried to get legislative language considered that would link the training and equipping of Iraqi security forces to the phased withdrawal of our troops. That made sense. As we train them and they are able to take over responsibility for security, we should withdraw our troops. The White House would not even consider this. I suspect had the White House asked our troops in the field or the American people, they would say that is what they want. It is also what most Iraqis want.

I am voting for the supplemental because I am concerned about our troops, many who were sent to fight and some of whom have died--as we understand from the press, even though we could not get this from the administration--without the proper armor. I opposed their deployment to Iraq, and I want to see them return home as quickly as possible, but in the meantime, I want them to have the best protection and equipment. They were sent into harm's way by the order of the Commander in Chief, and they should be protected as well as they can be.

There are other reasons I am voting for the supplemental, but I want to mention one in particular. There is a provision which I sponsored and Senators Boxer and Feinstein of California cosponsored which designates the program to assist innocent Iraqi victims of the military operations as the Marla Ruzicka Iraqi War Victims Fund.

This program, and one like it in Afghanistan, was inspired by Marla Ruzicka of Lakeport, CA. She died on April 16, 2005, at the age of only 28, from a car bomb in Baghdad. Marla's colleague and friend, Faiz Ali Salem, also died in that attack, both were on a mission of mercy.

I first met Marla 3 years ago. She worked closely with me and my staff, especially Tim Rieser of my Appropriations Committee staff, from the day after she arrived in Washington in 2002 until the day she died. In fact, Tim received e-mails and photographs of her holding a child she had helped that came in just hours before she was killed.

She was an extraordinarily courageous, determined young woman. She brought hope and cheer to everyone she met, from our military to people who were suffering from the ravages of the war. But she did it especially for the families of Afghan and Iraqi civilians who were killed or wounded as a result of the military operations. She felt passionately that part of being an American is to acknowledge those who have suffered and help their families piece their lives back together.

Who would not agree with that? By showing them a compassionate face of America, she not only gave them hope, she helped overcome some of the anger and resentment many felt toward our great country.

Over 90 percent of the casualties of World War I were soldiers. That changed in World War II. And since then, it is overwhelmingly civilians who suffer the casualties.

Rosters are kept of the fallen soldiers, as they should be, but no official record is kept or made public of the civilians who died. That is wrong. It denies those victims the dignity of being counted, the respect of being honored, and it also prevents their families from receiving the help they need.

In her young life, Marla forced us to face the consequences of our actions in ways that few others have. Even more importantly, she made us do something about it. She brought both parties in this Chamber together to help. What she did in Afghanistan and Iraq by the time she was 28, the end of her short life, was an achievement of a lifetime, far more than most people do in a much longer life.

This Saturday, from 2 to 4 in the afternoon, I am going to host a gathering in the Senate caucus room in the Russell Building so that anyone who is interested can learn more about Marla's work and the U.S. Government programs she inspired. I hope we can discuss ways for all of us to continue the campaign on behalf of innocent victims of conflict.

I thank my colleagues on both sides of the aisle for supporting naming this program after her. I want the work she started to continue. I doubt that we will see another person quite so remarkable as Marla, but I have to think there are a lot of other Americans who would want help if we give them the support they need.

I see the distinguished Senator from Connecticut in the Chamber. I reserve the remainder of my time and yield the floor to him.

Mr. President, I am dismayed that nearly all of the provisions of the REAL ID Act have been included in this conference report after closed-door negotiations between House and Senate Republicans. Democratic conferees were excluded from these negotiations. Indeed, my staff specifically asked the conferees for the majority to be included in negotiations on these far-reaching provisions--which have never received Judiciary Committee consideration--but our request was ignored.

I oppose the inclusion of these provisions for a number of reasons. First and foremost, this is not the way we should be legislating comprehensive changes to our immigration laws. The Judiciary Committee never considered them. The Senate never voted on them when the supplemental appropriations bill was being debated. Indeed, Senator Isakson offered an amendment that included the text of REAL ID but then withdrew it, reportedly under pressure from his own leadership. Many of us believed the Senate would vote down the Isakson amendment, especially considering that six Republican Senators had joined six Democratic Senators in writing to the majority leader to oppose including REAL ID in the supplemental appropriations bill.

Second, I am concerned that the REAL ID Act will cause great hardship for asylum seekers. In the guise of preventing terrorists from obtaining asylum--which is forbidden under current law--this conference report raises the standard of proof for all asylum seekers. The REAL ID Act's asylum provisions are opposed by a wide variety of religious organizations from across the political spectrum, as well as advocates for refugees and asylees. The United States Conference of Catholic Bishops has said that the asylum provisions in REAL ID would ``eviscerate the protection of asylum, thus preventing victims of persecution from receiving safe haven in the United States.''

Third, this conference report includes the REAL ID Act's breathtaking waiver of Federal law. The Secretary of Homeland Security will now be empowered to waive any and all laws that may get in the way of the construction of fences or barriers at any United States border. The Secretary already has broad authority in this area, and to further increase it demonstrates a lack of concern both with environmental protection and the rule of law.

Fourth, the conference report repeals the minimum Federal standards for driver's licenses that Congress passed only last December in the intelligence reform bill, in response to the recommendations of the 9/ 11 Commission. The Bush administration said that it preferred the approach taken in the conference report to the approach favored by the House, which is contained in the REAL ID Act. The House approach, now included in this conference report, replaces the newly enacted minimum standards with Federal mandates that I fear will be unworkable. The administration and the States have already devoted substantial energy to implementing the existing standards, and this conference report may represent a step backwards in our security.

These new provisions will endanger the lives of victims of domestic violence, including U.S. citizens. Many States currently allow victims of abuse--who frequently are hiding from their abusers--to obtain driver's licenses that do not list their address. This conference report will require all licenses to bear the recipient's address; unfortunately, it contains no exception for victims of domestic abuse or stalking. If a victim of domestic abuse or stalking is forced to disclose her physical residence in order to get a Federally-approved driver's license, she risks the possibility that she and her children will be tracked down by their abuser. For women and children fleeing domestic abuse or stalking, the option to use an alternate address is not a matter of convenience or preference; it can be a matter of life or death. We must fix this residential address requirement when we reauthorize the Violence Against Women Act later this year by creating an exemption for victims of domestic abuse or stalking.

Fifth, the conference report would eliminate habeas corpus review for

aliens who have received removal orders. We have not taken such a step in this country for more than a century, but we are taking it now, without the Senate even considering the measure.

Overall, the REAL ID provisions in this conference report need a much wider airing and consideration before enactment. Unfortunately, Republican conferees agreed to exclude the Democrats from consideration of these proposals and a group of Senate and House appropriators have agreed to change our immigration laws in profound ways.

On a much more favorable note, I am pleased that the conference report included, with minor modifications, the Senate-passed provision to provide relief to the small and seasonal businesses across our nation that rely on temporary foreign workers who come here on H-2B visas. I cosponsored the Senate amendment, offered by Senator Mikulski, to make additional visas available for aliens who wish to perform seasonal work in the United States. For the second year in a row, the statutory cap on such H-2B visas was met before businesses that need additional summer employees were even eligible to apply for visas. This has hurt businesses across the country, and this amendment will provide needed relief.

In Vermont, the main users of these visas are hotels, inns and resorts that have a busy summer season. I have heard from dozens of businesses in Vermont over the past year that have struggled mightily to manage without temporary foreign labor. I know that the Lake Champlain Chamber of Commerce, the Vermont Lodging & Restaurant Association and many small businesses in Vermont are vitally concerned and expect that similar associations and businesses in other States are, as well.

Indeed, a wide range of industries use these visas in other States. I imagine that nearly all Senators have heard from a constituent who has been harmed by the sudden shortage of H-2B visas, and fear that they will go out of business if Congress does not act to make more visas available.

The conference report does not raise the cap on the program, but rather allows those who had entered the U.S. in previous years through the H-2B program to return. These are, by definition, people who came to the U.S. legally and returned to their own countries as the law requires. The amendment also addresses the concerns some members have expressed about fraud.

I have been working to solve this crisis for more than a year. I joined last year with a substantial bipartisan coalition in introducing S.2252, the Save Summer Act of 2004. Senator Kennedy was the lead sponsor of the bill, which had 18 cosponsors, including 8 Republicans. The bill would have added 40,000 visas for the current fiscal year, providing relief to those summer-oriented businesses that had never even had the opportunity to apply for visas. Unfortunately, that bill was opposed by a number of Republican Senators and never received a vote. Our constituents suffered the consequences, and I am gratified that we are prepared to provide relief.

Mr. President, will the Senator yield on that point?

Is it my understanding, Mr. President, the distinguished Democratic leader is saying he is prepared to ask consent to move forward on the nomination of Tom Griffith to the DC Circuit?

Mr. President, if the Senator will yield further for a question, the Senator has stated he realizes Mr. Griffith practiced law illegally, first in one jurisdiction for 3 or 4 years, then in a second jurisdiction for 3 or 4 years, but that he is the President's choice for going on the DC Circuit.

I am sure the Senator is aware that during the last administration, several nominees for that same seat were blocked by pocket filibusters by the Republicans--one was Elana Kagan, who is now the dean of the Harvard Law School. Another was Allen Snyder, a former Supreme Court law clerk to Chief Justice Rehnquist.

I voted against Mr. Griffith because I felt on the second highest court of the land it is not a good example to have a person, whatever his other qualifications might be, who was so cavalier as to practice law illegally in two different jurisdictions.

I ask the Senator, is the Senator aware I did work with the distinguished Chairman of the committee, Senator Specter, to allow the hearing to go forward with Mr. Griffith and to allow a vote to go forward without delay in the committee? While I voted against Mr. Griffith because of the practice of law, primarily, and while, I felt concern that Chief Justice Rehnquist's former law clerk and Dean Kagan were blocked by the Republican pocket filibuster, I ask the leader if he understands that I will certainly have no objection nor do I know of any Democrat who would object to moving forward and having a real debate and the up-or-down vote that was denied to a Democratic President's nominees? Does the Senator understand that not withstanding the fact that I would vote against that nominee, I would support him bringing this nomination forward? I suspect he would get a majority of the votes in the Senate.

Allen Snyder.

Mr. President, I ask the distinguished leader through the Chair----

I am posing a question.

I would ask if the Senator would yield for the purpose of a question. When we talk about votes, 40 is the threshold on filibusters. Of course, the Senate sets the rules. The Senate could say: You require 95 votes. Or it could say: You require 2 votes. There is nothing magic about 50, 40, 60, or anything else. But be that as it may, I would ask, through the Chair, whether the Senator from Nevada is aware of numerous instances in which Democrats have proceeded to debate and vote on the President's nominees against which there were more than 40 negative votes--I can think of three significant judicial nominations where there were 41 Democratic votes against allowing them to go forward: Timothy Tymkovich was confirmed to the Eighth Circuit although 41 Senators voted against him; Jeffrey Sutton was confirmed to the Sixth Circuit although 41 Senators voted against him; J. Leon Holmes was confirmed to the district court in Arkansas although 46 Senators from both parties voted against him. In addition, Senate Democrats proceeded to debate and vote on the controversial nomination of former Attorney General Ashcroft, who was confirmed although 42 Senators voted against his confirmation; Ted Olson, who was confirmed to be Solicitor General although 47 Senators voted against his confirmation; Victor Wolski, who was confirmed to the Court of Claims although 43 Senators voted against his confirmation.

Most recently, a number of us voted for cloture on the nomination of Stephen Johnson to head the EPA. He was confirmed with only 61 votes in support. I was one of those who voted for cloture so we could go forward with the President's nomination.

Was the Senator from Nevada aware of all those?

Reserving the right to object--I will not object--I ask unanimous consent to follow the Senator from Texas as in morning business.

And that I then be recognized for the same amount of time.

I have no objection.

Mr. President, I understand the Senator from Oregon wishes to make a unanimous consent request.

Mr. President, could the Senate always be so agreeable in moving things along, we in the country would be better off.

I listened to this discussion of nuclear option and judges and all that. It may seem arcane. There is nothing in the Constitution that says 50 votes or 40 votes or 60 votes or 80 votes. It is up to the rules of the Senate. It is when the rules are either reviewed or ignored that you have a problem. As I mentioned earlier today, when President Clinton was in office, the Republicans used the rules to say if one Republican, one objected, then you would not have a vote on the nominee. 61 of President Clinton's nominees for judgeships were not allowed to move because one Republican objected. Actually a couple hundred of his executive nominations, by the same token, because one Republican objected. So there they are requiring 100 votes to confirm somebody.

So you wonder when you are talking about a tiny handful of judges-- and no President in history, from George Washington on, has ever gotten all judges through the Senate--why there is so much attention on this. I was thinking about it and I thought, you know, this all began about 4 years ago when we started talking about this. Four years ago things were a lot different in this country. Let's look at the differences.

In the last 4 years--and maybe this is why they would rather talk about judges instead of talking about what's going on--in the last 4 years under President Bush, unemployment has gone up 26 percent. During this same time, this last 4 years, the price of gas has gone up 57 percent. You can hold hands with all the Saudi princes you want, but it has still gone up. The number of uninsured in this country has gone up 10 percent. The budget deficit has gone up $50 billion. Actually, President Bush inherited the largest budget surplus of any President in the history of the United States. President Clinton had followed the Reagan and Bush administrations, which tripled the national debt and created huge deficits. President Clinton's administration not only balanced the budget, but created a surplus, and started paying down the debt. President Bush inherited the largest surplus of any President in our whole history and he has turned it into the largest deficit.

Then there is the trade deficit. That has gone up 69 percent. I mention these things that have gone up under the Bush Presidency. Obviously they don't want to talk about it. It means the Saudis and the Chinese, Japanese, Koreans, and others who are holding our debt thus influence our foreign policy.

We will not just be holding hands with Saudi princes, we will probably be holding hands with everybody from all these other countries, too, so they do not call our IOUs.

During those 4 years, unemployment has gone up by 26 percent, the price of gas has gone up by 57 percent, the number of uninsured Americans has gone up by 10 percent, the budget deficit has increased by $350 billion, and the trade deficit has gone up by 69 percent. But there is one indicator that has shown improvement: the number of judicial vacancies has dropped 48 percent.

So why are they complaining they are not getting enough judges? During those 4 years of President Bush's Presidency, the number of judicial vacancies has gone way down because we confirmed so many judges. In fact, 4 years ago, the vacancy rate in our Federal courts was nearly 10 percent, and now it is around 5 percent. Mr. President, 95 percent of the Federal judiciary is filled. Most people would consider 95 percent a pretty good record.

I remember talking with President Bush 4 years ago. I said: You might get 90, 95 percent of your judges through. He thought that was pretty good. He wished he had a record like that when he owned a baseball team.

Four years ago today, I went to the White House in a gesture of cooperation to hear the President announce his first judicial nominations. Some criticized me for going, but I said I wanted to help. The President, during his campaign, said he wanted to be a uniter, not a divider, and now was the time to do so, and I said I would help.

Unfortunately, that is not what President Bush had in mind. The nominations he announced that spring day 4 years ago were largely controversial, confrontational choices. Typically, when a President-- Republican or Democrat--selects nominations to the circuit courts, he consults at length with home State Senators and the Senate leadership to be sure those selected will be considered favorably by the Senate. This President has not done that. In fact, President Clinton, his predecessor, and his White House Counsel and staff were in regular contact with the Republican leadership. Senator Hatch talked in his book about how much President Clinton consulted with the Republicans.

Instead, here my Republican colleagues say: No, we do not want the checks and balances of the Senate; we do not want an independent, nonpartisan judiciary; we are going to put a Republican stamp on the judiciary.

Remember, the Federal judiciary should not be Democratic or Republican, it should be independent and free of political pressure.

They say: No, we cannot do that. We will break all the rules possible and make sure that we get rid of checks and balances.

This effort by the Republicans also, of course, belies what has happened. Back 4 years ago in June, with the change in the Senate, I became chairman of the Senate Judiciary Committee. Even though it was already June and the Republicans had been in charge since the beginning of the year, there had not been a single judicial nomination hearing held on President Bush's nominations. I inherited what seemed to be an impossibly large number of 110 vacancies. There were so many because, of course, there had been pocket filibusters of over 60 of President Clinton's nominations. But we worked hard, and in 17 months we were able to whittle that number down to 60 vacancies.

Incidentally, it is interesting that with the Republican majority, look how the vacancies skyrocketed in the judiciary. The Democrats came in and they shot down. Now, of course, they are heading back up under Republican leadership.

It takes a lot of work to lower the number of vacancies. I held hearings during recess periods and confirmed President Bush's nominees. Senator Daschle and I received a deadly anthrax attack, so deadly that people who touched the outside of the envelopes of letters addressed to us that we were supposed to open were killed. They were murdered, and we still held the hearings. We held hearings in the aftermath of the 9/ 11 attacks when the airlines were shut down. We had a nominee volunteer to drive from Mississippi to Washington to be included in a hearing I was holding. We had the anthrax attacks, the PATRIOT Act, and all the rest, and we kept on going, and in 17 months we confirmed 100 of President Bush's judges.

The Republicans took nearly twice as long when they were in control to confirm the same number of judges for President Bush. They say we are the ones holding things up? They ought to be ashamed of themselves. Maybe they ought to work as hard as we did to get them through. In fact, when Congress adjourned last December, there were only 27 vacancies out of 875 Federal judgeships, the lowest number in over a generation. In President Bush's first term, 204 judges were confirmed-- more than confirmed in either of President Clinton's two terms, more than during the term of the President's father, more than in Ronald Reagan's first term when he had a Republican Senate. We confirmed a couple more nominees before we broke a week ago, and the distinguished Democratic leader has suggested we bring up another one of President Bush's nominees for a vote.

We have seen the talking points that have come out from the Republicans. They say we are holding up Thomas Griffith. The record is clear that I have--we have objected to him. After all, he did practice law illegally for 4 years in one jurisdiction and practiced law illegally in another jurisdiction, and the President wants to put him on the second highest court in the land. We said that should be an impediment. In any other administration, it would be an impediment. They want to go forward with him. The record is equally clear that I do not intend to support a filibuster of this nomination.

The distinguished Democratic leader said: Fine, bring him up. We will give you a time agreement and vote on it. He will either be confirmed or will not

be confirmed. If he is confirmed, it shows what the standards are of this administration.

We can look at all the people turned down on the other side, but we never heard this complaint. We are prepared to move forward on Mr. Griffith's nomination despite the fact that the Republicans pocket filibustered 61 of President Clinton's nominees, even though those nominees included the current dean of Harvard Law School, a former attorney general from Iowa, a former clerk to Chief Justice Rehnquist, women, men, Hispanics, African Americans, and many others.

We heard talks about Judge Owen this afternoon. One of her opinions was criticized by Alberto Gonzales when he served on the Texas Supreme Court. However, we held a hearing for her, a very fair hearing. The Senator from California, Mrs. Feinstein, conducted it. It was acknowledged by both Republicans and Democrats as being totally fair. She was voted down in the committee, and for the first time in history, a nominee voted down in committee was resubmitted by the President.

This is not a time to be breaking the rules of the Senate. The rules are there because we want a check and balance. That is all we are saying. For example, a home State newspaper of one of the nominees referred to a speech she gave recently that sounded as if it came from an Islamic jihadist, a very activist judge, who believes that child labor laws, minimum wage laws, even Social Security represent something wrong in this country. I am not really sure that is the sort of person we want on the bench making decisions about child labor laws, Social Security, and minimum wage.

Let's forget this end justifies the means. Let the Senate be what it always has been: A check and balance, whether it is a Democratic President or Republican President, a real check and balance but an honest one.

Do away with anonymous holds. I said that before. Do away with the secret one-person filibuster. I know the distinguished Senator from Oregon has spoken consistently that way, I believe from the very first day he entered this great body. Do away with the anonymous holds. Do away with those things, but follow the Senate rules. Do not violate the rules. Do not let us, those who are supposed to judge the judges, break our own laws and our own rules.

As I have noted, 4 years ago today, on May 9, 2001, I went to the White House in a gesture of cooperation to hear the President announce his first judicial nominations. Some criticized me for going, but I wanted to indicate my willingness to work with the new President. After all, during the campaign he had told the American people he wanted to be a uniter, not a divider. He had lost the popular vote in a much- disputed 2000 election, and the country was deeply divided. I hoped that he would be a President who would understand the need to work across the aisle and to bring people together and to consult with both Democratic and Republican Senators. I thought that judicial nominations, particularly those to the important circuit courts where Republicans had prevented almost two dozen of President Clinton's qualified and moderate nominees from being considered, would be a good place to start.

Unfortunately, that was not what President Bush had in mind. The nominations that President Bush announced that spring day, years ago, were largely controversial, confrontational choices. Although I was then the Ranking Democratic Member of the Senate Judiciary Committee, and was soon to become the Committee's Chair, the White House had not reached out to discuss any of these controversial nominees beforehand. By and large, home-state Senators had not been consulted about the nominees, nor had any sort of bipartisan, independent group of attorneys or legal scholars. That was the President's choice and has, unfortunately, remained his way of identifying and selecting nominees to be lifetime judicial appointments to the federal bench. This White House appears to rely on a tight circle of Federalist Society members, Republican Party activists and law professors steeped in ideology. This President has nominated what may be the most ideological-driven group of nominees ever presented to the Senate at one time.

Typically, when a President selects nominations to the circuit courts, he consults at length with home-state Senators and the Senate leadership to ensure that those selected will be considered favorably by the Senate and confirmed. That has not been the true with this Administration. By way of example, I cannot recall a single occasion during which this President picked up the phone to discuss these judicial nominations during the entire four and a half years that he has been President--not at the beginning of his Administration, not during the 17 months that I chaired the Senate Judiciary Committee, and not since.

That stands in sharp contrast to traditional practice dating back to George Washington and, in particular, to the manner in which President Clinton had worked with Senator Hatch when he was the Ranking Minority Member of the Senate Judiciary Committee or its Chair. Not only were President Clinton, his White House Counsel and his staff in regular contact with Senator Hatch and his staff; with respect to the most important nominations, the President and he had direct, meaningful consultation. In his book, ``Square Peg,'' for example, Senator Hatch wrote that he ``had several opportunities to talk privately with President Clinton about a variety of issues, especially judicial nominations.''

He described how, when the first Supreme Court vacancy arose during the Clinton presidency in 1993, ``it was not a surprise when the President called to talk about the appointment and what he was thinking of doing.'' Senator Hatch went on to describe that the President was thinking of nominating someone who would require a ``tough, political battle'' but that he advised President Clinton to consider other candidates.

According to his book, Senator Hatch suggested then-D.C. Circuit Judge Ruth Bader Ginsburg, as well as then-First Circuit Judge Stephen Breyer. They were nominated to fill the vacancies that arose on the Supreme Court in 1993 and 1994. Both were approved by the Senate with strong, bipartisan support. Justice Ginsburg was confirmed by a vote on 96-3. Justice Breyer was confirmed by a vote of 87-9.

That sort of consultation did not occur before this President's initial nominations were made 4 years ago, and I am sorry it did not.

Sadly, this lack of consultation was not just the situation for these first nominations, it has continued to this day. Senate Democrats have not stopped trying to offer the advice called for by the Constitution and have never stopped being available to help in the selection process. Just a few weeks ago, on April 11, the Democratic Leader and I wrote to the President offering to help with the more than two dozen current judicial vacancies for which the President has not yet sent a nomination to the Senate. We urged him to disavow the ``nuclear option'' in favor of working with us to identify consensus judicial candidates who could be confirmed easily and who would be fair, impartial judges that would preserve the independence of the judiciary. The number of current judicial vacancies without a nominee has since risen to 29. It is now May, we are more than a third of the way through the year, and the President has still sent only one new judicial nomination to the Senate all year. Meanwhile almost a month has passed and Senator Reid and I have yet to receive the courtesy of a reply to our offer to help and to work together. Unilateralism has become their standard operating practice, and abuse of power has become increasingly common. Indeed, to this day I have yet to meet, talk to or even receive a telephone call from the President's new White House Counsel. The go- it-alone conduct of this Administration makes clear that this President has little use of the Senate's role in the constitutional process of selecting federal judges.

Under pressure from the White House, over the last 2 years, the former Republican chairman of the Judiciary Committee led Senate Republicans in breaking with longstanding precedent and Senate tradition. With the Senate and the White House under control of the same political party we have witnessed Committee rule after Committee rule broken or misinterpreted away. The Framers of the Constitution

warned against the dangers of such factionalism, undermining the structural separation of powers. Republicans in the Senate have utterly failed to defend this institution's role as a check on the President in the area of nominations. It surely weakens our constitutional design of checks and balances.

As I have detailed elsewhere, the list of broken rules and precedents is long--from the way that home-state Senators were treated, to the way hearings were scheduled, to the way the Committee questionnaire was unilaterally altered, to the way the Judiciary Committee's historic protection of the minority by Committee Rule IV was repeatedly violated. In the last Congress, the Republican majority of the Judiciary Committee destroyed virtually every custom and courtesy that had been used throughout Senate history to help create and enforce cooperation and civility in the confirmation process.

We suffered through 3 years during which Republican staff stole Democratic files off the Judiciary computers during what has been a ``by any means necessary'' approach. Their approach to our rules and precedents follows their own partisan version of the Golden Rule, which is that ``he with the gold, rules.'' That has not been helpful to the process, the Senate or the country. It is as if those currently in power believe that that they are above our constitutional checks and balances and that they can reinterpret any treaty, law, rule, custom or practice they do not like or they find inconvenient.

Some of these interpretations are so contrary to well-established understandings that it is like we have fallen down the rabbit hole in ``Alice in Wonderland.'' I am reminded that the imperious Queen of Hearts rebuked Alice for having insufficient imagination to believe contradictory things, saying that some days she had believed six impossible things before breakfast. I have seen things I thought impossible on the Judiciary Committee during the last few years, things impossible to square with the past practices of Committee and the history of the Senate. Our Committee is entrusted by the Senate to help determine whether judicial nominees will follow the law. It is unfortunate that the Committee that judges the judges has not followed its own rules but has bent or broken them to achieve a predetermined result.

Under our Constitution, the Senate has an important role in the selection of our judiciary. The brilliant design of our Founders established that the first two branches of government would work together to equip the third branch to serve as an independent arbiter of justice. As columnist George Will once wrote:

A proper constitution distributes power among legislative,

executive and judicial institutions so that the will of the

majority can be measured, expressed in policy and, for the

protection of minorities, somewhat limited.

The structure of our Constitution and our own Senate rules of self- governance are designed to protect minority rights and to encourage consensus. Despite the razor-thin margin of recent elections, the majority party is not acting in a measured way but in complete disregard for the traditions of bipartisanship that are the hallmark of the Senate. It has acted to ignore precedents and reinterpret longstanding rules to its advantage. This practice of might makes right is wrong.

Now the White House's hand-picked majority leader seems intent on removing the one Senate protection left for the minority, the protection of debate in accordance with the longstanding tradition of the Senate and its Standing Rules. In order to remove the last remaining vestige of protection for the minority, the Republican majority is poised to break the Senate Rules and end the filibuster with the votes of the barest of majorities. They seem intent on doing this to force through the Senate this President's most controversial and divisive judicial nominees.

As the Reverend Martin Luther King wrote in his famous Letter from a Birmingham Jail: ``Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.'' Fair process is a fundamental component of the American system of law. If we cannot have a fair process in these halls or in our courts, how will the resulting decisions be viewed? If the rule of law is to mean anything it must mean that it applies to all equally.

In the last Congress, I am sorry to report that the rule of law was broken, spindled and mutilated to serve the interests of President George W. Bush and his party. No man and no party should be above the law. That has been one of the strengths of our democracy. Our country was born in reaction to the autocracy and corruption of King George, and we must not forget our roots as a nation of both law and liberty. The best guarantee of liberty is the rule of law, meaning that the decisions of government are not arbitrary and that rules are not discretionary or enforced to help one side and then ignored to aid another. James Madison, one of the Framers of our Constitution, warned in Federalist Number 47 of the very danger that is threatening our great nation, a threat to our freedoms from within:

[The] accumulation of all powers legislative, executive and

judiciary in the same hands . . . may justly be pronounced

the very definition of tyranny.

Our freedoms as Americans are the fruit of too much sacrifice to have the rules broken in the United States Senate by a party colluding with the White House to try to appoint loyalists to courts who have been chosen with the hope that they will re-interpret precedents and overturn the very laws that have protected our most fundamental rights as Americans. The American people deserve better than we have seen with the destruction of rule after rule by a majority willing to sacrifice the role of the Senate as a check and balance in order to aid a President determined to pack the federal courts.

How does the record of judicial confirmations for President George W. Bush compare to administrations before his? Very well. In President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton two terms, more than during the term of this President's father, and more than in Ronald Reagan's first term when he was being assisted by a Republican majority in the Senate. With the four judges confirmed so far this year, the total number of confirmations of this President's judicial nominees has risen to 208. It would rise further and faster yet, if the White House would only work with us to identify qualified, consensus nominees for the 29 current vacancies without a nominee. The President has sent only one new nominee to the Senate so far this year, and it is already May. If the President wanted to pick judges instead of fights, he could work with us rather than divide us.

And what happened to those 11 nominees the President started us off with 4 years ago? Considering the strong ideological bent of this group, the President has been quite successful. One has been withdrawn from consideration and 8 of the remaining 10 have been confirmed, 80 percent. The confirmations of Clinton circuit court nominees during his second term, from 1997-2000, while a Republican Senate majority was in control, were nowhere near as successful. Over those 4 years 35 of 51 Circuit Court nominees were confirmed, 69 percent.

If we looked at 1999 and 2000, the 106th Congress, the numbers are even worse. Fewer than half of the President's circuit court nominees were confirmed, 15 of 34. Outstanding and qualified nominees were never allowed a hearing, a committee vote or Senate consideration of any kind. These nominees include the current dean of the Harvard Law School, a former attorney general from Iowa, a former clerk to Chief Justice Rehnquist and many others--women, men, Hispanics, African Americans, a wide variety of qualified nominees.

So on this anniversary, let us understand that 8 of the 10 nominees we will hear complaints about have been confirmed.

With respect to the remaining two, I should note that in the years that Republicans held the Senate majority and Senator Hatch was the committee chair, Judge Terry Boyle was one of

the very few nominees he chose not to consider. Thus, Judge Boyle is still before the Judiciary Committee. Senator Specter held a hearing on that controversial nomination and the committee is still receiving copies of Judge Boyle's unpublished opinions for its review.

The remaining nominee is one whose opinions were criticized by Alberto Gonzales when he served on the Texas Supreme Court with her. Indeed, many of her positions were too conservative and activist for her conservative Republican colleagues on the Texas Supreme Court. When I chaired the committee in 2002, in another gesture of good will, I proceeded on a number of controversial nominations in spite of the recent mistreatment of President Clinton's nominees. One of those hearings was for Priscilla Owen.

I was not required to schedule that hearing. I could have followed the example of my immediate predecessor and denied her consideration before the committee. It would have been a much easier path than the alternative I chose. Instead, I proceeded. Senator Feinstein conducted the hearing in a fair manner. After the hearing, I then did something else that my predecessor as Chair so often did not: I proceeded to have the committee consider the nomination on its merits even though I knew I would not support it. The committee debated the nomination fairly and openly. Objections to her confirmation, based on her record as a Justice on the Texas Supreme Court, were aired and honestly debated. A vote was taken and instead of hiding behind anonymous holds or hidden blue slips, Senators put themselves on the record. The result was that the Owen nomination was rejected by a majority of the committee and not recommended to the Senate.

Since that time much of what has happened has been unprecedented. Despite the rejection of the nomination by the committee, the President resubmitted the nomination the next year. I do not believe that had ever been done before in our history. Then, on a party-line vote, Republicans forced the nomination to the floor. It was debated extensively and the Senate withheld its consent. After a series of cloture votes, cloture was not agreed upon in accordance with the rules of the Senate. Nonetheless, the President took further unprecedented action in, again, resubmitting the nomination to the Senate. That nomination is now pending, again, on the Senate Executive Calendar.

By any measure the President's first nominees were treated fairly. Judge Parker, Judge Shedd, Judge Clement, Judge Cook, Judge Sutton, Judge McConnell, Judge Gregory and Judge Roberts are each serving lifetime appointments on important circuit courts. The first slate of nominees has now all been accorded hearings. All but Judge Boyle have been considered by the Judiciary Committee. All but one of those has been confirmed.

This is no basis on which to break the rules of the Senate. This is not justification to end the Senate's role as a check and balance on the Executive. This is not reason for the majority to take the drastic and irreversible step of ending protection of the minority through the tradition of extended debate in the Senate.

The White House and the Senate Republican leadership's campaign for ``nuclear option'' seeks to end the role of the Senate serving as a check on the Executive. But that is precisely what the Constitution intends the Senate to provide. Supporters of an all-powerful Executive have gone so far as to seek to inject an unconstitutional religious test into the debate and to characterize those who oppose the most extreme of the President's nominees as ``against people of faith'' and to call for mass impeachments of judges and other measures to intimidate the judiciary. Our independent judiciary is an essential check on the political branches.

Pat Robertson says that he believes that federal judges are ``a more serious threat to America than Al Qaeda and the September 11 terrorists'' and ``more serious than a few bearded terrorists who fly into buildings'' and ``the worst threat America has faced in 400 years--worse than Nazi Germany, Japan and the Civil War.'' This is the sort of incendiary rhetoric that is paving the way to the ``nuclear option.'' It is wrong, it is destructive and it is short-sighted.

Chief Justice Rehnquist is right to refer to the federal judiciary as the crown jewel of our system of government. It is an essential check and balance, a critical source of protection of the rights of all Americans, including our religious freedoms. In ``A Man For All Seasons'' Sir Thomas More speaks about the rule of law and the need for its protections. When his family confronts him and demands that he break the law to get at the Devil, he replies:

What would you do? Cut a great road through the law to get

after the Devil? . . . And when the last law was down, and

the Devil turned 'round on you, where would you hide, Roper,

the laws all being flat?

This country is planted thick with laws, from coast to

coast, Man's laws, not God's! And if you cut them down . . .

do you really think you could stand upright in the winds that

would blow then?

Yes, I'd give the Devil benefit of law, for my own safety's

sake!

Our Federal judges are not the Devil and are not in the service of the Devil. Democratic Senators are not the Devil and are seeking to uphold the Senate as a check on the most extreme actions of the Executive. I pray that Republican Senators will think about that and reflect on the protections that our constitutional checks and balances provide. I trust that they will honor the protections of the minority that make this institution what it is. I hope that they will show the courage to protect the Senate and the minority that the senior Senator from Pennsylvania spoke about in his important statement a few weeks ago.

Mr. President, I yield the floor.

Mr. President, these confirmations will be the 207th and 208th of 218 nominees brought before the full Senate for a vote to be confirmed. The Senate will have confirmed four more lifetime appointments to the Federal courts this year. With the year being almost one-third concluded, the Republican majority is gaining on the pace it set in 1999 when Senate Republicans allowed President Clinton to appoint only 17 district court judges and not a single nominee to the circuit courts that entire session.

These 208 judicial confirmations mean that even with the slow start this year because the President has refused to nominate consensus nominees, or anyone for 29 judicial vacancies, we are currently within 37 confirmations of the 6-year total achieved under the Senate Republican majority during the Clinton administration. That means if the Senate confirms another dozen judges this year and 30 next year, we will have equaled the total of which Senate Republicans were so proud during the Clinton years. The year I chaired the Judiciary Committee, the Senate confirmed 72 of President Bush's nominees. If the President and Senate Republicans would work with us rather than foment conflict and confrontation, we could easily surpass their record.

Of the 45 judicial vacancies that will remain after these confirmations, President Bush has not even sent nominees for 29 of those vacancies. I have been encouraging the Bush administration to work with Senators to identify qualified and consensus judicial nominees. The Democratic leader and I sent the President a letter in this regard on April 5, but we have received no response. Indeed, to date the President has only sent the Senate one new judicial nominee all year.

Despite the efforts of the Senate Republicans to create a crisis, the truth is that in President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton two terms, more than during the term of this President's father,

and more than in Ronald Reagan's first term when he was being assisted by a Republican majority in the Senate. By last December, we had reduced judicial vacancies from the 110 vacancies I inherited in the summer of 2001 to the lowest level, lowest rate and lowest number in decades, since Ronald Reagan was in office.

The two district court nominees being confirmed today, Robert Conrad and James Dever, are nominees who have raised concerns. When they were first nominated their home-State Senator had serious questions about them. A home-State Senator's views on a Federal court nominee has a long history of importance in the Senate. The Constitution says we should give the President advice on judicial appointments, and the views of home-State Senators have been very important. Candidly, I wish the White House had heeded Senator Edwards' advice and reconsidered these nominations.

After reading some of Mr. Conrad's more inflammatory writings, I do not wonder at Senator Edwards' objections. In particular, I am concerned about what some of the things he has written say about his ability to be a fair judge, and to give all who come before him a fair hearing. Listen to what he wrote about Sister Helen Prejean, one of the bravest and most caring people I have ever met. He calls her book, ``Dead Man Walking,'' ``liberal drivel,'' and shows nothing but contempt for her compassionate work with condemned prisoners. The rhetoric he uses is heated, and his bias for the death penalty is clear. Will any defendant in a capital case who comes before a Judge Conrad feel that they will get a fair hearing from him? Will he feel that a Judge Conrad can put aside personal prejudices and preconceptions? I hope so.

Another example is the not-too-subtly titled article, ``Planned Parenthood, A Radical, Pro-Abortion Fringe Group.'' Mr. Conrad's view of the well-respected family planning organization is that it is a ``most radical legal advocate of unfettered abortion on demand,'' and argues they do nothing to reduce teen pregnancy. The Planned Parenthood organization that I know, both in Vermont and nationally, works hard to reduce crisis pregnancies and to preserve families' rights to plan their own futures. His statements make me wonder whether any person going before a Judge Conrad in a case involving reproductive rights, or indeed any issue related to personal privacy, will feel their arguments have been fairly heard. Will he be able to follow the law as written? Again, for the sake of future litigants and the independence of our judiciary, I hope so.

I have similar concerns about Judge Dever. I see why Senator Edwards wanted better consultation on these district court nominees. Judge Dever's only two Supreme Court briefs argued against State legislative redistricting action designed to comply with the Voting Rights Act of 1965. When I asked Judge Dever to give me some assurance that he would be impartial when called upon to hear a redistricting case, he could only state that he believed he would be fair.

Much of Judge Dever's experience is in the area of representing Republican clients. While employed at a law firm, he provided legal services to several Republican campaigns and has been listed on the Republican National Lawyers Association webpage as an affiliated lawyer. I would like to believe that Judge Dever was nominated based on his own merits, and that his personal relationships will not affect his ability to rule impartially if he is confirmed. I have concerns.

I take seriously the views and support of the current North Carolina Senators. I hope that their support of these nominees is justified and that these nominees will serve in accordance with their oath to treat all who come before them fairly.

Today, again, Senate Democrats are demonstrating their willingness to work with the President and Senate Republicans.

I regret that in spite of all of our actions, the Republican majority seems intent on forcing a confrontation and breaking the Senate Rules in order to change them. The majority leader has apparently cast his lot with those who would alter the role of the Senate as a check and a balance on the choices of a powerful President. The Federal judiciary should not become an extension of the executive or a wholly-owned subsidiary of his political party.

Today, Republicans are threatening to take away one of the few remaining checks on the power of the executive branch by their use of what has become knows as the nuclear option. This assault on our tradition of checks and balances and on the protection of minority rights in the Senate and in our democracy should be abandoned. Eliminating the filibuster by the nuclear option would destroy the Constitution's design of the Senate as an effective check on the Executive. The elimination of the filibuster would reduce any incentive for a President to consult with home-state Senators or seek the advice of the Senate on lifetime appointments to the Federal judiciary. It is a leap not only toward one-party rule but to an unchecked executive.

Rather than blowing up the Senate, let us honor the constitutional design of our system of checks and balances and work together to fill judicial vacancies with consensus nominees. The nuclear option is unnecessary. What is needed is a return to consultation and for the White House to recognize and respect the role of the Senate appointments process.

The American people have begun to see this threatened partisan power grab for what it is and to realize that the threat and the potential harm are aimed at our democracy, at an independent and strong Federal judiciary and, ultimately, at their rights and freedoms. As we proceed to confirm two more lifetime appointments to the Federal courts, I urge Senate Republicans to reconsider and not to head down the destructive path represented by the nuclear option.

Mr. President, I am truly frustrated in the failure of the budget resolution conference agreement to include the sense-of-the- Senate provision--which I offered and the Senate accepted by voice vote--that is intended to head off the administration's plans to raid the Crime Victims Fund of over $1.2 billion.

The Crime Victims Fund was created under the Victims of Crime Act of 1984, VOCA, as a ``separate account,'' meaning that the revenues in the fund are intended to be used solely for financial support of victim services. The fund does not depend at all on taxpayer revenues; it is derived from Federal criminal fines, forfeitures, and special assessments. Since its inception, amounts deposited into the fund in a given fiscal year have remained available to support victim services in subsequent fiscal years.

Following a proposal in the President's budget, this budget resolution conference agreement would rescind all amounts remaining in the fund at the end of fiscal year 2006--an estimated $1.267 billion. That would leave the fund with a balance of zero going into fiscal year 2007 to support vital victim services.

This is absolutely shameful and unacceptable. The budget is a statement of our Nation's priorities and with this agreement we say to crime victims, ``Sorry, but your suffering is no longer our concern.'' We are telling crime victims--the victims of child sexual and physical abuse, domestic violence, sexual assault, robbery, assault, DUI/DWI crashes, elder abuse, adults molested as children, and the survivors of homicide victims--that their concerns and suffering do not rise to the level of being a national priority.

The provision that we included in the Senate-passed budget resolution expressed the sense of the Senate that we reject the proposed rescission. It assumes that all amounts that have been and will be deposited into the Crime Victims Fund, including all amounts to be deposited in fiscal year 2006 and thereafter, will remain in the fund for use as authorized by the Victims of Crime Act.

The Crime Victims Fund is the Nation's premier vehicle for the support of victims' services. Nearly 90 percent of the fund is used to award State crime victim compensation and victim assistance formula grants. VOCA-funded victim assistance programs serve nearly 4 million crime victims each year. VOCA-funded compensation programs have helped hundreds of thousands of victims of violent crime.

The fund also serves victims of Federal crimes. VOCA funding supports victim assistance services provided by U.S. Attorneys Offices and the FBI, as well as the Federal victim notification system. It is used for child abuse prevention and treatment grants, and it is also used to provide emergency relief to victims of terrorism and mass violence.

Since fiscal year 2000, Congress has set a cap on annual fund obligations expressly for the purpose of ensuring ``that a stable level of funding will remain available for these programs in future years.'' The ``rainy day'' fund created by this spending cap has been used to make up the difference between annual deposits and distributions three times during the past 6 years.

When Congress began considering caps on fund obligations, I proposed and Congress enacted an amendment to the Victims of Crime Act to clarify our intent to stabilize and preserve the fund for the benefit of victims. The amendment, now codified at section 10601(c) of title 42, requires that `` . . . all sums deposited in the fund in any fiscal year that are not made available for obligation by Congress in the subsequent fiscal year shall remain in the fund for obligation in future fiscal years, without fiscal year limitation.'' Thus, in both the authorization and the appropriations processes, Congress has clearly and emphatically stated its intent to maintain a stable source of Federal support for essential victim services.

Over the past 4 years, the Bush administration and this Republican Congress have squandered record surpluses and racked up $7.6 trillion in Federal debt as a result of reckless spending and budget-busting tax cuts. Now the President and this budget resolution conference agreement propose to reduce the deficit by siphoning off resources that we set aside to assist victims of crime.

The entire crime victims' community--including the National Center for Victims of Crime, the National Network to End Domestic Violence, the National Organization for Parents of Murdered Children, the National Children's Alliance, and Mothers Against Drunk Driving--stands united in opposition to the proposed rescission. These organizations represent the millions of Americans who become victims of crime every year. They have argued that rescinding the fund at the end of fiscal year 2006 would create a ``disastrous'' situation for victim service providers and their clients.

My friend and colleague, Senator Crapo, recently joined me to lead a bipartisan group of 29 senators on a letter to the Senate Appropriations Subcommittee on Commerce, Justice and Science requesting that they oppose proposals to rescind all amounts remaining in the fund at the end of fiscal year 2006. Each of those Senators recognized that we bear a responsibility to victims of crime; that it is appropriate that compensation come from convicted criminals and provided to the victim; and that it is entirely inappropriate to expunge this money from the fund and transfer it into the pot of appropriated taxpayer dollars. In the House, a letter with the identical request has 91 bipartisan cosigners. Clearly broad Congressional support for the preservation of the fund exists.

In every State and every community across the country, the Crime Victims Fund plays an essential role in helping crime victims and their families meet critical expenses, recover from the horrific crimes they endured, and move forward with their lives. It is an embarrassment that this budget resolution agreement fails to preserve the fund--as we promised we would--for the benefit of victims.

Mr. President, one year ago today, the horrific photos of detainee abuse at Abu Ghraib prison shocked the Nation and tarnished our reputation as the world's human rights leader. One year later, we should be able to assure the world that the detainee abuse scandal has been independently and comprehensively investigated and that all those involved, from the people who committed abuses

to the officials who set these policies in motion, have been held accountable. Sadly, we cannot give the world this assurance. The administration continues to stonewall on the prisoner abuse scandal and Congress continues to abdicate its oversight responsibility on this issue.

Those of us in the Congress who strongly believe that oversight and accountability are paramount to restoring America's reputation as a human rights leader remain stymied in our efforts to learn the truth about how this administration's policies trickled down from offices in Washington to cellblocks in Abu Ghraib. This Senate refuses to consider an independent commission, relying instead on the piecemeal investigations conducted by the military, none of which address the significant role of the Central Intelligence Agency in interrogations. With the completion of each of the Pentagon investigations, the need for a comprehensive, independent investigation becomes all the more evident.

I am particularly disturbed by recent press reports about the Army Inspector General's investigation into the Abu Ghraib abuse scandal. Although the report has not yet been publicly released, the press accounts state that Lt. Gen. Ricardo Sanchez has been cleared by the Army of all allegations of wrongdoing and likely will not face punishment.

In order to understand why the reported findings of the Army Inspector General are troubling, and why an independent investigation is necessary, we need only consult the reports of prior investigations. The Jones investigation, referring to the Combined Joint Task Force led by Lt. Gen. Sanchez, stated, ``Inaction at the CJTF-7 staff level may . . . have contributed to the failure to discover and prevent abuses before January 2004.'' The Jones report concluded that Lt. Gen. Sanchez ``failed to ensure proper staff oversight of detention and interrogation operations.''

The Schlesinger investigation is even more critical of Lt. Gen. Sanchez's role in the detainee abuse scandal. The Schlesinger panel described how Lt. Gen. Sanchez relied upon the interrogation policy from Guantanamo Bay to develop interrogation procedures for Iraq. The result of this, as the Schlesinger panel correctly states, was that ``policies approved for use on al Qaeda and Taliban detainees who were not afforded the protection of [Enemy Prisoner of War] status under the Geneva Conventions now applied to detainees who did fall under the Geneva Convention protections.'' The Schlesinger report continued, ``Despite lacking specific authorization to operate beyond the confines of the Geneva Conventions, [Lt. Gen. Sanchez] nonetheless determined it was within [his] command discretion to classify, as unlawful combatants, individuals captured during [Operation Iraqi Freedom].'' The panel also found that Lt. Gen. Sanchez ``was responsible for establishing the confused command relationship at the Abu Ghraib prison'' and ``the unclear chain of command established by CJTF-7, combined with the poor leadership and lack of supervision, contributed to the atmosphere at Abu Ghraib that allowed the abuses to take place.''

The findings of the Jones and the Schlesinger investigations regarding the decisions of Lt. Gen. Sanchez are troubling on their own. Equally troubling is the indication that Lt. Gen. Sanchez gave inaccurate testimony before the Senate Armed Services Committee. In an Armed Services Committee hearing on May 19, 2004, Senator Jack Reed asked Lt. Gen. Sanchez if he had approved sleep deprivation, intimidation by guard dogs, excessive noise, and inducing fear as interrogation methods for use in Abu Ghraib prison. Lt. Gen. Sanchez replied that, ``I never approved any of those measures to be used within CJTF-7 at any time in the last year.'' His statement is seemingly contradicted by a document recently released by the Pentagon in response to litigation under the Freedom of Information Act. A September 14, 2003, memo from Lt. Gen. Sanchez authorized specific interrogation methods for use in Iraq, including the use of military working dogs to exploit Arab fear of dogs, the use of sleep management and stress positions, and inducing fear through ``yelling, loud music, and light control.''

There has been some speculation in the media about whether Gen. Sanchez's actions in Iraq will stand in the way of his promotion and fourth star. But involvement in the prisoner abuse scandal is hardly a career-ending event in this administration. Alberto Gonzales, the central figure in formulating the administration's interrogation and detention policies, was promoted to Attorney General. Former Assistant Attorney General Jay Bybee, author of the deeply flawed and now- repudiated ``torture memo,'' received a lifetime appointment to the Court of Appeals for the Ninth Circuit. Defense Department General Counsel William J. Haynes insisted that the Pentagon Working Group use the Bybee torture memo, rather than the Geneva Conventions, as the legal foundation for interrogation techniques; he has been nominated to the Court of Appeals for the Fourth Circuit. Former CIA Director George Tenet authorized the ``extraordinary rendition'' of detainees to countries where they were reported to have been tortured; he was awarded the Presidential Medal of Freedom. Secretary Rumsfeld personally approved objectionable interrogation techniques and admitted to hiding detainees from the International Committee of the Red Cross; he is one of the few cabinet members asked to remain in the second Bush term.

Allowing senior officials and military officers to avoid accountability sets a dangerous precedent. It is time for Congress, even this Republican-led Congress, to recognize its constitutional obligation to conduct vigorous oversight. We must send a message that no one in the chain of command--from an enlisted private stationed in Iraq to the Commander-in-Chief--is above the laws of our Nation. Many Republicans argue that another investigation will hurt the morale of our troops serving overseas. On the contrary, I believe that morale is hurt when the only individuals who have been punished for detainee abuse are low-ranking soldiers, while those at the highest levels of power continue to set policy and act with impunity.

Chairman Warner recently announced that he will hold an Armed Services Committee hearing to examine the adequacy of the various Pentagon and military investigations. I commend the chairman for announcing this hearing, and hope that the supporters of an independent investigation are given the opportunity to testify before the committee. In a letter last September, eight retired generals and admirals asked President Bush to appoint a prisoner abuse commission modeled on the 9/11 Commission. In that letter, the officers stated, ``internal investigations by their nature . . . suffer from a critical lack of independence. Americans have never thought it wise or fair for one branch of government to police itself.'' I hope that members of the Armed Services Committee will consider these words when they evaluate the Pentagon's investigations.

April 28, 2004, will remain a dark day in American history, but the administration's handling of this scandal only adds to our disgrace. There will always be scandals and tragedies in a nation's history. What makes America special is that we do not hide from these issues; we investigate them, learn from our mistakes, and make sure they do not happen again. Unfortunately, one year after the disclosure of the Abu Ghraib photos, we still have much to learn.

Mr. President, I introduce today the Leahy-Sununu E-mail Privacy Act to ensure that last year's decision by the First Circuit Court of Appeals in a case called United States v. Councilman does not undermine the online privacy that Americans expect and cherish. Senator Sununu has been a leader on privacy issues, and I appreciate and welcome his support.

In a strained reading of the Electronic Communications Privacy Act (ECPA), the majority in this case effectively concluded that it was permissible for an Internet Service Provider to systematically intercept, copy and read its customers' incoming e-mails for corporate gain. This outcome is an unacceptable privacy intrusion that is inconsistent with Congressional intent and the commonly-held understanding of the protections provided by ECPA, and requires swift Congressional response. I offer the E-mail Privacy Act as a simple, straightforward way to prevent the erosion of the privacy protection Congress granted to e-mail and ensure that this outcome is not repeated.

In 1986 Congress passed ECPA to update the Wiretap Act so that Americans could enjoy the same amount of privacy in their online communications as they do in the offline world. ECPA was a careful, bipartisan and long-planned effort to protect electronic communications in two forms--from real-time monitoring or interception as they were being delivered, and from searches when they were stored in record systems. We recognized these as different functions and set rules for each based on the relevant privacy expectations and threats to privacy implicated by the different forms of surveillance.

The Councilman decision upset this careful distinction. Functionally, the ISP was intercepting e-mails as they were being delivered, yet the majority concluded that the relevant rules were those pertaining to stored communications, which exempt ISPs. Specifically, the majority rejected the argument put forth by the Justice Department that an intercept occurs--and the Wiretap Act--applies when an e-mail is acquired contemporaneously with its transmission, regardless of whether the transmission may be in electronic storage for a nanosecond at the time of acquisition. This majority's conclusion fails to consider the nature of electronic communications systems and belies the reality that such searches are functionally an interception.

The implications of this decision are broad. While many ISPs are responsible online citizens, this does not change the fact that this decision essentially licenses ISPs to snoop. Even more worrisome is that this decision creates the opportunity for the type of Big Brother invasions that understandably make Americans cringe. For practical reasons, law enforcement often installs surveillance devices at these nanosecond storage points, but before doing so, they have obtained the appropriate legal permission to intercept e-mails--a Title III order. Under the majority's interpretation in the Councilman decision, law enforcement would no longer need to obtain a Title III order to conduct such searches, but rather could follow the less rigorous procedures for stored communications. For example, under the rules for stored communication, if law enforcement were to get the consent of a university-operated ISP, such searches could be performed without the knowledge of users. This is Carnivore unleashed if you will, and is simply not the outcome that Congress intended or the American people expect. Searches that occur in nanosecond storage points during the transmission process are in their function ``interceptions'' and should be treated as such and subject to the wiretap laws.

The E-mail Privacy Act is a simple approach to prevent the erosion of privacy protections and clarifies that the wiretap laws apply to e-mail interceptions like those at issue in the Councilman case. In essence, the Act would amend ECPA to clarify that the definition of intercept is not a narrow, rigid concept, but is broad enough to include actions that are functionally equivalent to an interception. Importantly, these careful and slight changes would simply restore the status quo prior to the Councilman decision without disturbing other areas of ECPA and without raising controversial concerns that may be difficult to resolve in the few remaining days of this term.

This is an important issue to the American people, and fortunately the E-mail Privacy Act provides a straightforward approach that we can all get behind. Again, I thank Senator Sununu for his support on this important legislation. I am sure he would join me in urging our colleagues to make e-mail privacy a top priority and support the E-mail Privacy Act.

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

Mr. President, it is now fairly common on the Senate Floor to hear the statement that we cannot adequately defend our Nation today without our military reserves. Everybody knows that the activation of members of the National Guard and Reserve since September 11, 2001, represents the largest mobilization of our back-up military personnel since World War II. Everyone knows too that members of the National Guard and Reserve comprise over 50 percent of the forces on the ground in Iraq. And, yes, we all know that we are asking the reserves, particularly the National Guard, to help increase security within the domestic United States, whether at prominent events or along our porous national borders.

It is critical that we go beyond mere statements and take concrete steps to preserve the readiness, morale, and general effectiveness of this force. This imperative extends particularly to redressing harmful policies that give the impression to our reservists that they are not an equally important part of the wider military and the defense of the Nation.

Today Senator Bond and I are introducing legislation that will end one of the most glaring of these inequities. Our legislation, The National Guard and Reserves Housing Equity Act of 2005, effectively terminates a patently unfair low housing allowance provided to reservists when they are called up for a relatively short-term of active service.

This so-called lower allowance level, known officially as the Basic Allowance for Housing II, or B.A.H. II, puts on average almost $400 less per month--per month--in the pockets of our reservists than what they would receive if they were regular, active duty members. To any reservist who leaves his or her community, profession, and family for active service, receiving B.A.H. II says that he or she is a second- class member of the military. You might do the same job as a full-time member of the military and live in the same type of housing, but you do not deserve the same allowance. The allowance creates an unacceptable financial hardship that will decrease the willingness of any reasonable person to continue service.

This is a very real problem. Last year, Congress and the President enacted a piece of legislation--which I

sponsored along with my fellow Guard Caucus Co-Chair Senator Kit Bond-- that authorized greater use of the National Guard for national homeland security missions. Using this new authority, members of the National Guard from my home State of Vermont were called to active duty late last year to help increase security along the Northern Border. Those members of the Guard worked side-by-side with their active duty counterparts. Yet the Guard personnel received over $300 less per month in housing allowances.

I cannot tell you how many soldiers and airmen who participated in that mission came up to me and made clear how slighted and insulted they felt by that housing allowance. Those comments mirror what I heard from other members of the Guard who received B.A.H. II on a similar mission. This second-tier housing allowance really burns in the saddle of every citizen-soldier, sailor, airman, and marine, and it is having a real effect on morale.

We simply cannot tolerate this inequity to continue, and it is within our power to do something about this. So we have a choice today: Either we can keep this second-tier housing allowance in place and send a signal that we need to save some dollars on the backs of those who have stepped forward to serve, or we can remedy this inequity, making the firm statement that we will take the real steps necessary to support our reservists and provide them the resources so that they can do their jobs and be treated fairly while they serve.

The National Guard and Reserves Housing Equity Act of 2005 specifically provides that any member of the reserves called up for more than 30 days will receive the exact same housing allowance as a regular active duty service-member. The legislation gives the Office of Secretary of Defense some discretion to set the allowance under the 30 days, but it should be done on a pro-rated basis on the higher regular allowance. The effect of this legislation will be to end the category of Basic Allowance of Housing II.

This legislation has been endorsed unanimously by the 35-military association umbrella group, The Military Coalition. So that all senators may read the specific views of the military associations, I ask that letters from the National Guard Association of the United States, the Enlisted Association of the National Guard of the United States, the Reserve Officers Associations, the Reserve Enlisted Association, the Association of the United States Army, and the Fleet Reserve Association be printed in the Record. The Military Officer's Association of America and the Air Force Sergeant's Association have also directly endorsed this legislation.

We often hear statements about supporting our troops, but this is a chance to actually support them. This is an issue that literally affects our troops where they live. I invite our colleagues to join Senator Bond and me in co-sponsoring this legislation and in working to end this grossly unfair system. With the National Guard and Reserves Housing Equity Act of 2005, we are backing up our thanks with meaningful action. With this step we are saying that we are ready to provide a strong foundation of policies that will actually encourage our reservists to continue to serve the country superbly. This is the right thing to do, and I look forward to working with my colleagues on both sides of the aisle to enacting this legislation this year.

Mr. President, I introduce today the Leahy-Sununu E-mail Privacy Act to ensure that last year's decision by the First Circuit Court of Appeals in a case called United States v. Councilman does not undermine the online privacy that Americans expect and cherish. Senator Sununu has been a leader on privacy issues, and I appreciate and welcome his support.

In a strained reading of the Electronic Communications Privacy Act (ECPA), the majority in this case effectively concluded that it was permissible for an Internet Service Provider to systematically intercept, copy and read its customers' incoming e-mails for corporate gain. This outcome is an unacceptable privacy intrusion that is inconsistent with Congressional intent and the commonly-held understanding of the protections provided by ECPA, and requires swift Congressional response. I offer the E-mail Privacy Act as a simple, straightforward way to prevent the erosion of the privacy protection Congress granted to e-mail and ensure that this outcome is not repeated.

In 1986 Congress passed ECPA to update the Wiretap Act so that Americans could enjoy the same amount of privacy in their online communications as they do in the offline world. ECPA was a careful, bipartisan and long-planned effort to protect electronic communications in two forms--from real-time monitoring or interception as they were being delivered, and from searches when they were stored in record systems. We recognized these as different functions and set rules for each based on the relevant privacy expectations and threats to privacy implicated by the different forms of surveillance.

The Councilman decision upset this careful distinction. Functionally, the ISP was intercepting e-mails as they were being delivered, yet the majority concluded that the relevant rules were those pertaining to stored communications, which exempt ISPs. Specifically, the majority rejected the argument put forth by the Justice Department that an intercept occurs--and the Wiretap Act--applies when an e-mail is acquired contemporaneously with its transmission, regardless of whether the transmission may be in electronic storage for a nanosecond at the time of acquisition. This majority's conclusion fails to consider the nature of electronic communications systems and belies the reality that such searches are functionally an interception.

The implications of this decision are broad. While many ISPs are responsible online citizens, this does not change the fact that this decision essentially licenses ISPs to snoop. Even more worrisome is that this decision creates the opportunity for the type of Big Brother invasions that understandably make Americans cringe. For practical reasons, law enforcement often installs surveillance devices at these nanosecond storage points, but before doing so, they have obtained the appropriate legal permission to intercept e-mails--a Title III order. Under the majority's interpretation in the Councilman decision, law enforcement would no longer need to obtain a Title III order to conduct such searches, but rather could follow the less rigorous procedures for stored communications. For example, under the rules for stored communication, if law enforcement were to get the consent of a university-operated ISP, such searches could be performed without the knowledge of users. This is Carnivore unleashed if you will, and is simply not the outcome that Congress intended or the American people expect. Searches that occur in nanosecond storage points during the transmission process are in their function ``interceptions'' and should be treated as such and subject to the wiretap laws.

The E-mail Privacy Act is a simple approach to prevent the erosion of privacy protections and clarifies that the wiretap laws apply to e-mail interceptions like those at issue in the Councilman case. In essence, the Act would amend ECPA to clarify that the definition of intercept is not a narrow, rigid concept, but is broad enough to include actions that are functionally equivalent to an interception. Importantly, these careful and slight changes would simply restore the status quo prior to the Councilman decision without disturbing other areas of ECPA and without raising controversial concerns that may be difficult to resolve in the few remaining days of this term.

This is an important issue to the American people, and fortunately the E-mail Privacy Act provides a straightforward approach that we can all get behind. Again, I thank Senator Sununu for his support on this important legislation. I am sure he would join me in urging our colleagues to make e-mail privacy a top priority and support the E-mail Privacy Act.

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

Mr. President, it is now fairly common on the Senate Floor to hear the statement that we cannot adequately defend our Nation today without our military reserves. Everybody knows that the activation of members of the National Guard and Reserve since September 11, 2001, represents the largest mobilization of our back-up military personnel since World War II. Everyone knows too that members of the National Guard and Reserve comprise over 50 percent of the forces on the ground in Iraq. And, yes, we all know that we are asking the reserves, particularly the National Guard, to help increase security within the domestic United States, whether at prominent events or along our porous national borders.

It is critical that we go beyond mere statements and take concrete steps to preserve the readiness, morale, and general effectiveness of this force. This imperative extends particularly to redressing harmful policies that give the impression to our reservists that they are not an equally important part of the wider military and the defense of the Nation.

Today Senator Bond and I are introducing legislation that will end one of the most glaring of these inequities. Our legislation, The National Guard and Reserves Housing Equity Act of 2005, effectively terminates a patently unfair low housing allowance provided to reservists when they are called up for a relatively short-term of active service.

This so-called lower allowance level, known officially as the Basic Allowance for Housing II, or B.A.H. II, puts on average almost $400 less per month--per month--in the pockets of our reservists than what they would receive if they were regular, active duty members. To any reservist who leaves his or her community, profession, and family for active service, receiving B.A.H. II says that he or she is a second- class member of the military. You might do the same job as a full-time member of the military and live in the same type of housing, but you do not deserve the same allowance. The allowance creates an unacceptable financial hardship that will decrease the willingness of any reasonable person to continue service.

This is a very real problem. Last year, Congress and the President enacted a piece of legislation--which I

sponsored along with my fellow Guard Caucus Co-Chair Senator Kit Bond-- that authorized greater use of the National Guard for national homeland security missions. Using this new authority, members of the National Guard from my home State of Vermont were called to active duty late last year to help increase security along the Northern Border. Those members of the Guard worked side-by-side with their active duty counterparts. Yet the Guard personnel received over $300 less per month in housing allowances.

I cannot tell you how many soldiers and airmen who participated in that mission came up to me and made clear how slighted and insulted they felt by that housing allowance. Those comments mirror what I heard from other members of the Guard who received B.A.H. II on a similar mission. This second-tier housing allowance really burns in the saddle of every citizen-soldier, sailor, airman, and marine, and it is having a real effect on morale.

We simply cannot tolerate this inequity to continue, and it is within our power to do something about this. So we have a choice today: Either we can keep this second-tier housing allowance in place and send a signal that we need to save some dollars on the backs of those who have stepped forward to serve, or we can remedy this inequity, making the firm statement that we will take the real steps necessary to support our reservists and provide them the resources so that they can do their jobs and be treated fairly while they serve.

The National Guard and Reserves Housing Equity Act of 2005 specifically provides that any member of the reserves called up for more than 30 days will receive the exact same housing allowance as a regular active duty service-member. The legislation gives the Office of Secretary of Defense some discretion to set the allowance under the 30 days, but it should be done on a pro-rated basis on the higher regular allowance. The effect of this legislation will be to end the category of Basic Allowance of Housing II.

This legislation has been endorsed unanimously by the 35-military association umbrella group, The Military Coalition. So that all senators may read the specific views of the military associations, I ask that letters from the National Guard Association of the United States, the Enlisted Association of the National Guard of the United States, the Reserve Officers Associations, the Reserve Enlisted Association, the Association of the United States Army, and the Fleet Reserve Association be printed in the Record. The Military Officer's Association of America and the Air Force Sergeant's Association have also directly endorsed this legislation.

We often hear statements about supporting our troops, but this is a chance to actually support them. This is an issue that literally affects our troops where they live. I invite our colleagues to join Senator Bond and me in co-sponsoring this legislation and in working to end this grossly unfair system. With the National Guard and Reserves Housing Equity Act of 2005, we are backing up our thanks with meaningful action. With this step we are saying that we are ready to provide a strong foundation of policies that will actually encourage our reservists to continue to serve the country superbly. This is the right thing to do, and I look forward to working with my colleagues on both sides of the aisle to enacting this legislation this year.

Mr. President, I am proud to submit today with my friend and colleague Senator Specter a bipartisan resolution to designate May 15, 2005, as National Peace Officers Memorial Day. Joining us in the introduction of this resolution are Senators Hatch, Biden, Brownback, Cornyn, DeWine, Durbin, Feingold, Feinstein, Kennedy, Kohl, Kyl, and Schumer.

This is the ninth year running that I have been involved in the introduction of this resolution to keep alive in the memory of all Americans the sacrifice and commitment of those law enforcement officers who lost their lives serving their communities. For 8 years I introduced this resolution with my old friend and our former colleague Senator Campbell, a former deputy sheriff who was a true leader on this issue. Now I have teamed with Senator Specter, a former prosecutor who has witnessed first-hand the risks faced by law enforcement officers every day while they serve and protect our communities. His knowledge and experience in this area is a true asset to the American people and I thank him for his leadership on it.

I also want to thank each of our Nation's brave law enforcement officers for their unwavering commitment to the safety and protection of their fellow citizens. They are real-life heroes, too many of whom too often give the ultimate sacrifice, and they remind us of how important it is to support and respect our state and local police officers.

Currently, more than 850,000 men and women who guard our communities do so at great risk. Each year, 1 in 15 officers is assaulted, 1 in 46 officers is injured, and 1 in 5,255 officers is killed in the line of duty in the United States every other day. After the hijacked planes hit the World Trade Center in New York City on September 11, 2001, 72 peace officers died while trying to ensure that their fellow citizens in those buildings got to safety. That act of terrorism resulted in the highest number of peace officers ever killed in a single incident in the history of our country.

In 2004, 154 law enforcement officers died while serving in the line of duty, well below the decade-long average of 169 deaths annually, and a major drop from 2001 when a total of 237 officers were killed. A number of factors contributed to this reduction including better equipment and the increased use of bullet-resistant vests, improved training and advanced emergency medical care. And, in total, more than 17,500 men and women have made the ultimate sacrifice--of that number 42 are police officers who have already been killed in 2005 while serving in the line of duty.

In the 108th Congress, we shepherded into law a number of measures to issues to make a difference in the lives of all police officers and the communities they serve. We improved the Justice Department's Public Safety Officers Benefits Program by making law the Hometown Heroes Survivors Benefits Act, P.L. No. 108-182, which allows survivors of public safety officers who suffer fatal heart attacks or strokes while participating in non-routine stressful or strenuous physical activities to qualify for Federal survivor benefits.

Also becoming law was the Campbell-Leahy Bulletproof Vest Partnership Grant Act, P.L. No. 108-372, which extends through fiscal year 2007 the authorization of appropriations for the Bulletproof Vest Partnership Grant Program that helps State, tribal and local jurisdictions purchase armor vests for use by law enforcement officers. I hope that with the help of this program we can make sure that every police officer who needs a bulletproof vest gets one.

Last year, the Law Enforcement Officers Safety Act, which Senator Campbell and I championed in the Senate, was signed into law, P.L. No: 108-277. This measure established national measures of uniformity and consistency to permit trained and certified on-duty, off-duty or retired law enforcement officers to carry concealed firearms in most situations so that they may respond immediately to crimes across State and other jurisdictional lines, as well as to protect themselves and their families from vindictive criminals.

National Peace Officers Memorial Day will provide the people of the United States with the opportunity to honor the extraordinary service and sacrifice given year after year by our police forces. More than 25,000 peace officers are expected to gather in Washington to join with the families of their fallen comrades. I hope my colleagues will join us in supporting passage of this important bipartisan resolution.

Mr. President, it has taken some time, but the Senate Republican leadership will finally allow the Senate to consider the nomination of Michael Seabright to be a United States District Court Judge for Hawaii. I commend the distinguished Senators from Hawaii for their effort in identifying this consensus nominee. When Mr. Seabright is confirmed by an overwhelming, bipartisan vote of the Senate, he will be the 206th nominee of this President confirmed to a lifetime appointment to our Federal courts.

This is only the second judicial nomination Senate Republicans have been willing to consider all year. There has been no filibuster of judicial nominees this year. Instead, it is the Senate Republican leadership that, through its deliberate inaction, is keeping judgeships unnecessarily vacant for months. With this nomination and with the nomination of Judge Crotty, I was the one asking for months for the nomination to be considered, debated, voted, and confirmed. For the last several weeks, I have been calling upon the Republican readership to proceed to the confirmation of Michael Seabright to the District Court of Hawaii.

All Democrats on the Judiciary Committee had been prepared to vote favorably on this nomination for some time. We were prepared to report the nomination last year, but it was not listed by the then-chairman on a committee agenda. I thank Chairman Specter for including Mr. Seabright at our meeting on March 17. The nomination was unanimously reported and has been on the Senate Executive Calendar for more than a month. It is Senate Republicans who resisted a vote on this judicial nominee, not Democrats. In their fashion, they did so without any explanation akin to the anonymous ``holds'' that doomed more than 60 of President Clinton's judicial nominees not so long ago.

Once confirmed, Mr. Seabright will be the 206th of 216 nominees brought before the full Senate for a vote to be confirmed. That means that 829 of the 875 authorized judgeships in the Federal judiciary, or 95 percent, will be filled. It is regrettable that Republican delay has now pushed the Senate behind even the pace set by the Republican majority in 1999, when President Clinton was in the White House. That year, the Senate Republican leadership did not allow the Senate to consider any circuit court nominees for the entire session and only 17 district court nominees were confirmed. The Republican Senate has fallen behind that pace.

Of the 47 judicial vacancies now existing, President Bush has not even sent nominees for 29 of those vacancies, more than half. I have been encouraging the Bush administration to work with Senators to identify qualified and consensus judicial nominees and do so, again, today. The Democratic leader and I sent the President a letter in this regard on April 5, but we have received no response.

It is now the last week in April. We are almost one-third through the year and so far the President has sent only one new nominee for a Federal court vacancy all year--only one. Instead of sending back divisive nominees, would it not be better for the country, the courts, the American people, the Senate, and the administration if the White House would work with us to identify, and for the President to nominate, more consensus nominees such as Michael Seabright who can be confirmed quickly with strong, bipartisan votes?

I commend the Senators from Hawaii for their efforts to work cooperatively to fill judicial vacancies. I only wish Republicans had treated President Clinton's nominees to vacancies in Hawaii with similar courtesy. Had they, there would not have been the vacancies on the Ninth Circuit and on the District Court. The work of the Senators from Hawaii is indicative of the type of bipartisan efforts Senate Democrats have made with this President

and remain willing to make. We can work together to fill judicial vacancies with qualified, consensus nominees. The vast majority of the more than 200 judges confirmed during the last 3\1/2\ years were confirmed with bipartisan support.

The truth is that in President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton two terms, more than during the term of this President's father, and more than in Ronald Reagan's first term when he was being assisted by a Republican majority in the Senate. By last December, we had reduced judicial vacancies from the 110 vacancies I inherited in the summer of 2001 to the lowest level, lowest rate and lowest number in decades, since Ronald Reagan was in office.

The Hawaii judgeship at issue here has been vacant for more than 4 years, since December of 2000 when Judge Alan Kay took senior status. President Clinton made a nomination to that seat in advance of the vacancy, but the Republicans in control of the Senate refused to act on it. They preserved the vacancy for a Republican President.

In 2002, President Bush nominated James Rohlfing to the vacancy. That nomination failed, however, because in the view of his home State Senators and the American Bar Association, he was not qualified for the position. It took the White House more than 2 additional years to agree. Finally, in May 2004 that nomination was withdrawn by President Bush.

The administration finally got it right after consultation with the Hawaii Senators. The President sent Michael Seabright's name to the Senate last September. An outstanding attorney who has experience in private practice as well as a sterling reputation as an Assistant United States Attorney, Mr. Seabright merited consideration and swift confirmation. Despite his reputation as a law-and-order Republican, Republicans would not move on Mr. Seabright's nomination last Congress. The President took his time renominating Mr. Seabright and even then it took repeated requests to get his nomination included on the agenda of the committee. When he was considered on March 17, he was reported with unanimous support. Senate Democrats have long supported and requested action on this nomination.

I have been urging this President and Senate Republicans for years to work with all Senators and engage in genuine, bipartisan consultation. That process leads to the nomination, confirmation, and appointment of consensus nominees with reputations for fairness. The Seabright nomination, the bipartisan support of his home State Senators, and the committee's action by a unanimous bipartisan vote is a perfect example of what I have been urging.

I have noted that there are currently 29 judicial vacancies for which the President has delayed sending a nominee. In fact, he has sent the Senate only one new judicial nominee all year. I wish he would work with all Senators to fill those remaining vacancies rather than through his inaction and unnecessarily confrontational approach manufacture longstanding vacancies. It is as if the President and his most partisan supporters want to create a crisis.

Over the last weeks, we have heard some extremists call for mass impeachments of judges, court-stripping, and punishing judges by reducing court budgets. Now we are seeing an effort at religious McCarthyism by which Republican partisans inject religion into these matters. Rather than promote crisis and confrontation, I urge the President to disavow the divisive campaign and, instead, do what most others have and work with us to identify outstanding consensus nominees. It ill serves the country, the courts and, most importantly, the American people for this administration and the Senate Republican leadership to continue down the road to conflict.

The Seabright nomination shows how unnecessary that conflict really is. Let us join together to debate and confirm consensus nominees to these important lifetime posts on the Federal judiciary.

It is the Federal judiciary that is called upon to rein in the political branches when their actions contravene the constitutional limits on governmental authority and restrict individual rights. It is the Federal judiciary that has stood up to the overreaching of this administration in the aftermath of the September 11 attacks.

It is more and more the Federal judiciary that is being called upon to protect Americans' rights and liberties, our environment and to uphold the rule of law as the political branches under the control of one party have overreached. Federal judges should protect the rights of all Americans, not be selected to advance a partisan or personal agenda. Once the judiciary is filled with partisans beholden to the administration and willing to reinterpret the Constitution in line with the administration's demands, who will be left to protect American values and the rights of the American people?

The Constitution establishes the Senate as a check and a balance on the choices of a powerful President who might seek to make the Federal judiciary an extension of his administration or a wholly-owned subsidiary of his political party. Today, Republicans are threatening to take away one of the few remaining checks on the power of the Executive branch by their use of what has become knows as the nuclear option. This assault on our tradition of checks and balances and on the protection of minority rights in the Senate and in our democracy should be abandoned. Eliminating the filibuster by the nuclear option would destroy the Constitution's design of the Senate as an effective check on the Executive. The elimination of the filibuster would reduce any incentive for a President to consult with home State Senators or seek the advice of the Senate on lifetime appointments to the Federal judiciary. It is a leap not only toward one-party rule but to an unchecked executive.

Rather than blowing up the Senate, let us honor the constitutional design of our system of checks and balances and work together to fill judicial vacancies with consensus nominees. The nuclear option is unnecessary. What is needed is a return to consultation and for the White House to recognize and respect the role of the Senate appointments process.

The American people have begun to see this threatened partisan power grab for what it is and to realize that the threat and the potential harm are aimed at our democracy, at an independent and strong federal judiciary and, ultimately, at their rights and freedoms.

Mr. President, I commend the two Senators from Hawaii, Mr. Inouye and Mr. Akaka, for their support and their work with the White House in getting this nominee to the floor. I commend the White House for working with them.

This nominee was confirmed unanimously in the Senate Judiciary Committee, Republicans and Democrats joined alike. I urge on our side of the aisle that all Senators vote for him.

I have been advised by the distinguished members of the Republican side of the aisle that they are willing to yield back their time. So I ask that all time on either side on this nominee be yielded back so we can go to a vote.

I ask for the yeas and nays.