Floor Statements

Mr. President, today the Senate will complete the consideration of the nomination of Michael Chertoff to head the Department of Homeland Security.

Judge Chertoff currently serves as a Federal judge on the Court of Appeals for the Third Circuit. This is a lifetime appointment that he has held for a relatively short time and that he will be abandoning to return to executive branch service. I helped expedite and voted in favor of Judge Chertoff when his nomination to the third circuit came to the Senate in 2003.

Before that he was the Assistant Attorney General in charge of the Criminal Division at the Department of Justice. I helped expedite and voted in favor of that nomination in 2001.

I have worked with Mike Chertoff and appreciate his background as a prosecutor. He is very capable. He works hard. What one sees when you consider his career is that much of the time he acts as a consummate professional in our best tradition. Although there have been times when he has shown partisanship in an apparent effort to ``earn his spurs'' with those on the extreme right, it is my hope and expectation that he will bring his better angels with him as he embarks on his new role as Secretary of the Office of Homeland Security. That is not a position that needs or deserves even a hint of partisanship. Indeed, one of the moments that marred Secretary Ridge's tenure was when he stepped out of character to make a blatantly partisan pitch during the run-up to the recent presidential election.

I was astonished when President Bush announced that he had chosen Bernie Kerik to replace Secretary Ridge. When newspapers and news magazines began looking at that nomination, it became apparent that the vetting of that nomination was shoddy and that Mr. Kerik was an unacceptable choice on a number of grounds. That misadventure cost us time and led to Judge Chertoff's nomination being made later than it should have been by the administration.

The Senate has expedited consideration of this nomination. In what I hope is a sign of better days to come and of increased responsiveness, I note that this nominee has responded in kind by seeking to answer in one day's time a letter I sent to him. I appreciate that kind of responsiveness.

In light of his effort, I will excuse his missing the point in failing to respond directly to my first question. I raised with the nominee an aspect of his conversations with representatives of the intelligence community while he was serving as a principal law enforcer charged with prosecutions under the anti-torture law. My question to Judge Chertoff was an opportunity for him to reflect on the inappropriateness of the chief prosecutor advising lawyers for possible investigatory targets regarding how he would apply the law and what might provide a safe harbor when it came to torture.

I commend Senator Levin for trying to get to the substance of those conversations during confirmation hearings. Sadly but all too characteristically, the Bush administration has refused to provide him or the Senate with the relevant materials in this regard. I am, likewise, concerned that Mr. Chertoff was not more assertive during discussions with the Office of Legal Counsel as it headed down the wrong road in trying artificially to narrow the definition of torture to provide latitude that contributed to widespread international scandals in our wrongful treatment of prisoners. I wish someone within the Bush administration at the time had stood up for the rule of law and had succeeded in derailing the search directed by Judge Gonzales to create loopholes in our law.

I appreciate that Judge Chertoff has committed to implementing the recommendations of the inspector general with respect to preserving the civil rights of those detained by the Government in his answer to my second question. That inquiry derived from his testimony to the Judiciary Committee in November 2001.

Finally, I asked a series of questions about the so-called ``wall'' between law

enforcement investigations and intelligence. The 9/11 Commission report went a long way toward dismantling the myth that former Attorney General Ashcroft had tried to perpetuate. I recall when even President Bush upbraided Attorney General Ashcroft following his assault upon Commissioner Gorelick at the 9/11 Commission hearings.

I pointed out that during the Clinton administration almost one year before September 11, 2001, the Department of Justice Office of Legal Counsel had issued an official memorandum noting the Government's position on ``Sharing Title III Electronic Surveillance Material with the Intelligence Community,'' which concluded that law enforcement officials may share surveillance information with the intelligence community to obtain assistance in preventing, investigating or prosecuting a crime, or where the information was of overriding importance to national security or foreign relations.

As Judge Chertoff recalls, it was Attorney General Ashcroft who adopted measures on January 21, 2000, and it was the memorandum issued by Deputy Attorney General Thompson on August 6, 2001, that governed information sharing in the days leading to the disaster that was September 11. Indeed, Judge Chertoff notes: ``When it was deemed to be appropriate, additional procedures were put in place in specific cases, or in sets of related cases.'' He proceeds to concede that without any change in the law, in the time between September 11 and enactment of the USA PATRIOT Act: ``With court approval, some of these procedures were modified between 9/11 and October 26, 2001, the effective date of the USA PATRIOT Act.''

The 9/11 Commission established during its investigation that in the days and months before September 11, 2001, information sharing requirements and procedures were misunderstood and misapplied at the Department of Justice. I appreciated Judge Chertoff's offering a glimpse into the inner workings of the Ashcroft Justice Department in the days that led up to 9/11 when he noted that there was a ``vigorous internal debate about the appropriate procedures for sharing information collected in foreign intelligence and counterterrorism investigations with criminal agents and prosecutors.'' That ``internal debate'' was unresolved on September 11, 2001, when terrorists struck in New York and at the Pentagon and were thwarted in the sky over Pennsylvania.

When the Justice Department came forward to work with the Senate in the weeks following the attacks, I worked with Mr. Chertoff to ensure that law enforcement and intelligence efforts were better coordinated, and I urged him, the Attorney General and the Director of the FBI to change the culture that had led to destructive and dysfunctional hoarding of essential security information.

I ask unanimous consent that copies of my letter to Judge Chertoff and his response be printed in the Record.

Heading the Department of Homeland Security is a position that may be one of the more difficult assignments in Washington and in Government. The work of the Department of Homeland Security, DHS, is crucial to the safety and security of the American people. There remain many problems in integrating the elements of the Department and in making them as effective as we need them to be. I remain concerned with a number of issues in need of greater attention at DHS and much more significant support from the highest levels of the Bush administration. Working with Secretary Chertoff, maybe we will be able to get that attention and support.

The Bush administration has failed to provide the necessary assistance for first responders throughout our Nation. As the costs borne by law enforcement agencies across the country continue to rise, we need to increase the partnership help offered to our nation's first responders. Instead, in the President's new budget, he has proposed cutting overall funding for first responders by $670 million. These cuts target vital emergency services affecting every State, regardless of size or population. The President also proposed cutting the all- State minimum for first-responder grants from 0.75 percent to 0.25 percent. That new formula would result in the loss of funds to police, firefighters and emergency rescue squads in dozens of states from coast to coast. In Vermont, this would mean a loss of at least $10 million dollars in fiscal year 2006--grant funds that are used to provide security services along thousands of miles of our border with three states. Vermont's border with Canada spans approximately 95 miles, but the Swanton Border Patrol is charged with protecting 24,000 square miles, which includes not only the entire State of Vermont, but also numerous counties in New York and New Hampshire. Within this area, the Swanton Border Patrol is required to patrol more than 261 miles of International Boundary.

Our approach to port security is also insufficient. More than 90 percent of the world's trade is moved in cargo containers. The Government Accountability Office has found that the information that the Bureau of Customs and Border Patrol uses to determine which cargo should be searched is ``one of the least reliable or useful for targeting purposes.'' In addition, our government has been slow to install radiation detection portals at our ports, leaving us vulnerable to the smuggling of a nuclear or radiological weapon.

Mass Transit Measures Idle. Our mass transit systems are similarly at risk. While we spent about $4.5 billion on aviation security last year, we devoted only $65 million to rail security, even though five times as many people take trains as planes every day. The

Madrid bombing vividly demonstrated the potential vulnerability of mass transit, and I am concerned that the administration is not responding effectively enough to this threat. This needs to be a higher priority than the administration has made it. The TSA has been slow in developing security procedures at port and rail facilities around the country, and our transit and freight transportation systems remain at risk. The recent DHS budget submission cuts funding for the following essential security programs: port security grants, port security incident response, intercity bus grants, container threat assessments, nuclear detection and monitoring, hazmat truck tracking and training, and rail security inspectors.

Air Security Concerns Linger. Despite the dedicated resources to aviation security, problems remain. There have been several reorganizations of the TSA's airport screeners program, but reports from the GAO and the DHS Office of Inspector General suggest that the screening programs for baggage and passengers at our nation's airports are not as effective as they should be. We need to ensure that the $4,734,784,000 budget request for aviation security this year is spent wisely and properly.

Secretary Chertoff, if he is confirmed, will oversee both the enforcement of our immigration laws and the granting of immigration benefits. We face a number of important choices on immigration in the coming years, and I hope that he will play a constructive role.

I urge him to support the bipartisan efforts in Congress to improve the H-2B visa program, so we can meet the needs of small employers around our nation who depend on seasonal immigrant labor to stay in business. I hope he will support the bipartisan ``AgJOBS'' bill, which provides relief both to the agriculture industry and to the immigrant farm workers who make up a majority of the farm workforce in our nation. And as the Congress debates fundamental immigration reform, I hope that Judge Chertoff will work to help ensure that any reform efforts recognize and embrace the tremendous contributions of immigrants to our economy and our culture.

I would like to note the release last week of a report by the U.S. Commission on International Religious Freedom, a bipartisan commission created by Congress that we asked to study the expedited removal system and its effect on asylum seekers. In his response to me last week, Judge Chertoff showed a commendable concern for the civil rights of those who were detained due to alleged immigration violations during the 9/11 investigation. His concern should be even more pronounced here, where the Commission found that DHS detains people who seek refuge in the United States--and are not even accused of committing any criminal or civil violation--under conditions that ``are entirely inappropriate for asylum seekers fleeing persecution.''

If we are to recapture America's rightful place as a haven for the oppressed, the tragic situation of asylum seekers must be rectified. The Commission offered a number of recommendations that can be implemented through administrative action, such as establishing an office within DHS to oversee the treatment of refugees and asylum seekers and issuing formal regulations governing when asylum seekers should be released from detention. I urge Judge Chertoff to begin the process of making these changes immediately.

As secretary, Judge Chertoff will also supervise a number of outstanding Federal employees who are Vermonters and work for various components of the Department, particularly in DHS' immigration agencies. I believe he will be pleased with their efforts and their expertise.

Secretary Ridge and I have disagreed strongly about DHS' efforts to privatize Immigration Information Officer, IIO, and other positions at the agency, and Congress has barred that privatization for the current fiscal year. Among other duties, IIOs perform background checks on applicants for immigration benefits, a function that should be performed by government employees. I urge Secretary Chertoff to consider the repeated votes of both the House and Senate to maintain these positions as government employees and to make no effort to revisit the unwise and unpopular efforts of his predecessor.

I will support this nomination. Secretary Chertoff will face great challenges ahead. I hope that he will work with me and others, on both sides of the aisle, in finding the best solutions in meeting them.

Mr. President, I rise today again with Senator Bennett to introduce the ``Artist-Museum Partnership Act.'' This bipartisan legislation will enable our country to keep cherished art works in the United States and to preserve them in our public institutions, while erasing an inequity in our tax code that currently serves as a disincentive for artists to donate their works to museums and libraries. This is the same bill we introduced the past three Congresses. It was also included in the Senate-passed version of the President's 2001 tax cut bill, and in the Senate-passed version of the 2003 Charity Aid, Recovery, and Empowerment, CARE, Act. I would like to thank Senators Bingaman, Cantwell, Cochran, Conrad, Dodd, Durbin, Jeffords, Kennedy, Kerry, Lieberman, Lugar, Stevens and Warner for cosponsoring this bipartisan bill.

Our bill is sensible and straightforward. It would allow artists, writers, and composers who donate works to museums and libraries to take a tax deduction equal to the fair market value of the work. This is something that collectors who make similar donations are already able to do. Under current law, artists who donate self-created works are only able to deduct the cost of supplies such as canvas, pen, paper and ink, which does not even come close to their true value. This is unfair to artists and it hurts museums and libraries--large and small-- that are dedicated to preserving works for posterity. If we as a nation want to ensure that art works created by living artists are available to the public in the future--for study or for pleasure--this is something that artists should be allowed to do.

In my State of Vermont, we are incredibly proud of the great works produced by hundreds of local artists who choose to live and work in the Green Mountain State. Displaying their creations in museums and libraries helps

develop a sense of pride among Vermonters and strengthens a bond with Vermont, its landscape, its beauty, and its cultural heritage. Anyone who has contemplated a painting in a museum or examined an original manuscript or composition, and has gained a greater understanding of both the artist and the subject as a result, knows the tremendous value of these works. I would like to see more of them, not fewer, preserved in Vermont and across the country.

Prior to 1969, artists and collectors alike were able to take a deduction equivalent to the fair market value of a work, but Congress changed the law with respect to artists in the Tax Reform Act of 1969. Since then, fewer and fewer artists have donated their works to museums and cultural institutions. The sharp decline in donations to the Library of Congress clearly illustrates this point. Until 1969, the Library of Congress received 15 to 20 large gifts of manuscripts from authors each year. In the four years following the elimination of the deduction, the Library received only one such gift. Instead, many of these works have been sold to private collectors and are no longer available to the general public.

For example, prior to the enactment of the 1969 law, Igor Stravinsky planned to donate his papers to the Music Division of the Library of Congress. But after the law passed, his papers were sold instead to a private foundation in Switzerland. We can no longer afford this massive loss to our cultural heritage. Losses like this are an unintended consequence of the 1969 tax bill that should now be corrected.

Congress changed the law for artists more than 30 years ago in response to the perception that some taxpayers were taking advantage of the law by inflating the market value of self-created works. Since that time, however, the government has cut down significantly on the abuse of fair market value determinations. Under this legislation, artists who donate their own paintings, manuscripts, compositions, or scholarly compositions would be subject to the same new rules that all taxpayer/ collectors who donate such works must now follow. This includes providing relevant information as to the value of the gift, providing appraisals by qualified appraisers, and, in some cases, subjecting them to review by the Internal Revenue Service's Art Advisory Panel.

In addition, donated works must be accepted by museums and libraries, which often have strict criteria in place for works they intend to display. The institution must certify that it intends to put the work to a use that is related to the institution's tax exempt status. For example, a painting contributed to an educational institution must be used by that organization for educational purposes and could not be sold by the institution for profit. Similarly, a work could not be donated to a hospital or other charitable institution that did not intend to use the work in a manner related to the function constituting the recipient's exemption under Section 501 of the tax code. Finally, the fair market value of the work could only be deducted from the portion of the artist's income that has come from the sale of similar works or related activities.

This bill would also correct another disparity in the tax treatment of self-created works--how the same work is treated before and after an artist's death. While living artists may only deduct the material costs of donations, donations of those same works after death are deductible from estate taxes at the fair market value of the work. In addition, when an artist dies, works that are part of his or her estate are taxed on the fair market value.

The Joint Committee on Taxation has previously estimated that our bill would cost $50 million over 10 years. This is a moderate price to pay for our education and the preservation of our cultural heritage.

I want to thank my colleagues again for cosponsoring this bipartisan legislation. The time has come for us to correct an unintended consequence of the 1969 law and encourage rather than discourage the donations of art works by their creators. This bill will make a critical difference in an artist's decision to donate his or her work, rather than sell it to a private party where it may become lost to the public forever. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I rise today again with Senator Bennett to introduce the ``Artist-Museum Partnership Act.'' This bipartisan legislation will enable our country to keep cherished art works in the United States and to preserve them in our public institutions, while erasing an inequity in our tax code that currently serves as a disincentive for artists to donate their works to museums and libraries. This is the same bill we introduced the past three Congresses. It was also included in the Senate-passed version of the President's 2001 tax cut bill, and in the Senate-passed version of the 2003 Charity Aid, Recovery, and Empowerment, CARE, Act. I would like to thank Senators Bingaman, Cantwell, Cochran, Conrad, Dodd, Durbin, Jeffords, Kennedy, Kerry, Lieberman, Lugar, Stevens and Warner for cosponsoring this bipartisan bill.

Our bill is sensible and straightforward. It would allow artists, writers, and composers who donate works to museums and libraries to take a tax deduction equal to the fair market value of the work. This is something that collectors who make similar donations are already able to do. Under current law, artists who donate self-created works are only able to deduct the cost of supplies such as canvas, pen, paper and ink, which does not even come close to their true value. This is unfair to artists and it hurts museums and libraries--large and small-- that are dedicated to preserving works for posterity. If we as a nation want to ensure that art works created by living artists are available to the public in the future--for study or for pleasure--this is something that artists should be allowed to do.

In my State of Vermont, we are incredibly proud of the great works produced by hundreds of local artists who choose to live and work in the Green Mountain State. Displaying their creations in museums and libraries helps

develop a sense of pride among Vermonters and strengthens a bond with Vermont, its landscape, its beauty, and its cultural heritage. Anyone who has contemplated a painting in a museum or examined an original manuscript or composition, and has gained a greater understanding of both the artist and the subject as a result, knows the tremendous value of these works. I would like to see more of them, not fewer, preserved in Vermont and across the country.

Prior to 1969, artists and collectors alike were able to take a deduction equivalent to the fair market value of a work, but Congress changed the law with respect to artists in the Tax Reform Act of 1969. Since then, fewer and fewer artists have donated their works to museums and cultural institutions. The sharp decline in donations to the Library of Congress clearly illustrates this point. Until 1969, the Library of Congress received 15 to 20 large gifts of manuscripts from authors each year. In the four years following the elimination of the deduction, the Library received only one such gift. Instead, many of these works have been sold to private collectors and are no longer available to the general public.

For example, prior to the enactment of the 1969 law, Igor Stravinsky planned to donate his papers to the Music Division of the Library of Congress. But after the law passed, his papers were sold instead to a private foundation in Switzerland. We can no longer afford this massive loss to our cultural heritage. Losses like this are an unintended consequence of the 1969 tax bill that should now be corrected.

Congress changed the law for artists more than 30 years ago in response to the perception that some taxpayers were taking advantage of the law by inflating the market value of self-created works. Since that time, however, the government has cut down significantly on the abuse of fair market value determinations. Under this legislation, artists who donate their own paintings, manuscripts, compositions, or scholarly compositions would be subject to the same new rules that all taxpayer/ collectors who donate such works must now follow. This includes providing relevant information as to the value of the gift, providing appraisals by qualified appraisers, and, in some cases, subjecting them to review by the Internal Revenue Service's Art Advisory Panel.

In addition, donated works must be accepted by museums and libraries, which often have strict criteria in place for works they intend to display. The institution must certify that it intends to put the work to a use that is related to the institution's tax exempt status. For example, a painting contributed to an educational institution must be used by that organization for educational purposes and could not be sold by the institution for profit. Similarly, a work could not be donated to a hospital or other charitable institution that did not intend to use the work in a manner related to the function constituting the recipient's exemption under Section 501 of the tax code. Finally, the fair market value of the work could only be deducted from the portion of the artist's income that has come from the sale of similar works or related activities.

This bill would also correct another disparity in the tax treatment of self-created works--how the same work is treated before and after an artist's death. While living artists may only deduct the material costs of donations, donations of those same works after death are deductible from estate taxes at the fair market value of the work. In addition, when an artist dies, works that are part of his or her estate are taxed on the fair market value.

The Joint Committee on Taxation has previously estimated that our bill would cost $50 million over 10 years. This is a moderate price to pay for our education and the preservation of our cultural heritage.

I want to thank my colleagues again for cosponsoring this bipartisan legislation. The time has come for us to correct an unintended consequence of the 1969 law and encourage rather than discourage the donations of art works by their creators. This bill will make a critical difference in an artist's decision to donate his or her work, rather than sell it to a private party where it may become lost to the public forever. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I commend the distinguished senior Senator from Illinois. He is absolutely right. You have the corporate interests, and this administration is closing courthouse doors--one of the few places where people can go that are not aligned with either the Republican or the Democratic Party; a place where they don't need any political clout; a place where somebody can't say they are going to contribute heavily to a political party so their interests will be heard, or something like that. There is one place they could go-- whether they are a mechanic, a bus driver, a person raising a family, somebody who had been damaged by a product sold when the manufacturer knew of the flaw--the one place they could go would be the courthouse. They are not the rich, powerful, or well-connected. They could win. Or at least seek justice. We are going to close that door, too.

Over the few days that the Senate has been considering this bill, there have been a few modest amendments that might actually keep the door open a tiny crack for the people who need it. There have been serious concerns raised by the National Conference of State Legislatures of our 50 States, the National Association of State Attorneys General, prominent legal scholars, consumers, environmental groups, and civil rights organizations. They asked us to at least consider a few improvements but the courthouse door was slammed shut. The Senate's door was slammed shut.

For anybody watching this debate, they have figured out that by now the fix was in, despite these legitimate concerns.

After 31 years here I am disappointed that the Senate is now taking its marching orders for major legislation from corporate special interests and the White House.

We could have actually acted as an independent body and made some changes in this bill. Instead, we are saying--the 100 of us--to all 50 of the State legislatures that we know better than they do, that they are irrelevant, that we could close them off.

It is going to make it harder for American citizens to protect themselves against violation of State civil rights, consumer, health, environmental protection laws, to take these cases to State court.

Aside from being convenient, plaintiffs actually know where the local state courthouse is. These courthouses have experience with the legal and factual issues within their States. We are simply going to sweep these cases into Federal court, after we have already swept so much criminal jurisdiction there, and you can't get a civil case heard anyway. We are erecting barriers to lawsuits, and we are placing new burdens on plaintiffs. They will languish.

The bill contains language that would reduce the delay that parties can experience when a case is removed to Federal court by setting a limit for appeals of remand orders. But we don't say anything about how long the court can sit on the remand motion. They could sit on it for 10 years if they want to before they do a thing. Plaintiffs can die, witnesses can move away, memories could grow dim, and nothing happens.

Senator Feingold offered a modest amendment to set a reasonable time for action on remand motions. The solution received praise from one of the sponsors of this legislation, but the corporate masters and the White House said no. So it was rejected by the Senate.

The biggest concern raised by legal scholars and agreed to by several Senate sponsors of the bill would address the recent trend in Federal courts not to certify class actions if multiple state laws are involved.

The way this is set up in the bill--a lot of the business groups are behind this--one could easily get a case dismissed by a Federal court.

Senator Feinstein and Senator Bingaman worked together to alleviate what was a legal Catch-22. The Federal court says if a case has complicated State laws in it, it can't hear it. But you can't bring it in State court either. The Federal court says the State laws are complicated and it should have been heard in the State court. But under this bill, it goes to the Federal court so, of course, the corporate interests win. We tried to change that.

Cynics might even speculate that is what the business groups behind this purported ``procedural'' change are really seeking, the dismissal of meritorious cases on procedural grounds by the federal courts. Naturally, the orders came down from the corporate masters and the White House: Don't do it. We love the way this is going to allow us to keep things out of court. There it goes.

Anyone who reads this bill will notice that despite its title, it affects more than just class actions. Individual actions, consolidated by state courts for efficiency purposes, are not class actions. Despite the fact that a similar provision was unanimously struck from the bill during the last Congress, mass actions reappeared in this bill this Congress. Federalizing these individual cases will no doubt delay, and possibly deny, justice for victims suffering real injuries. Senator Durbin's amendment sought to clarify the bill's effect on these cases. I'm glad the debate this week served to clarify the narrow scope of this provision.

It is interesting because a similar provision to was unanimously struck from the bill during the last Congress--unanimously but that wasn't good enough for the corporate masters. It was slipped back into the bill this Congress.

Class action legislation had been criticized by nearly all of the State attorneys general in this country, Republicans and Democrats alike. The distinguished former attorney general, Senator Pryor of Arkansas, had a concern that S. 5 would limit their official powers to investigate and bring actions in State courts against defendants. He wanted to put in minor clarifications to show they could do that. Although these attorneys general contacted their Senators--Republicans and Democrats alike--they were tossed out.

Senator Kennedy's amendment to exempt civil rights, and wage and hour cases in the bill, was a sensible solution. Prominent civil rights organizations and labor advocates requested that the bill be modified to acknowledge the fact that many of our states have their own protective civil rights and employment laws. I was proud to cosponsor it and regret that with the fix being in, this amendment was rejected by the Senate. But the fix was in, and that is out.

What we have done here? I will give you an example of one class action suit that would have been impacted under this legislation--Brown v. Board of Education, finally ending segregation in our schools, a blight on the American conscience. And how did Brown v. Board of Education get to the Supreme Court? Not from the three Federal courts in that class action suit; not the three Federal courts that said ``separate but equal'' is the law of the land. It had been good enough for all of us. Send those African-American children to one school. Send the White kids to a much better school--because that is what it was. The view was that is good enough for us, always been that way.

Only one State court in the State of Delaware said: That might be what the U.S. Supreme Court said, but they are wrong. They are wrong. We don't believe in Plessy v. Ferguson. We don't believe in the separate but equal. We say sending Black children to one school and White kids to the other is not equal. We are making second-class citizens of these African Americans.

And because a State court heard and ruled on that class action, it went up to the U.S. Supreme Court, and the U.S. Supreme Court unanimously came down with Brown v. Board of Education.

We pray there is not some class of people in this country being damaged the way African-American children were being damaged at that time because if they go into the courts in the wake of this legislation, the fix is in, this Senate has closed the court doors to them, this White House has closed the court doors to them, these corporate interests have closed the court doors to them. It is a shame. It is wrong. It is one heck of a message to send to this country.

It is disappointing to me that the Senate has refused to listen to wise counsel of our state legislatures, our state law enforcement officers, our state judges and even the views expressed by our federal judiciary since they are the institutions that we are affecting by enacting this legislation.

I predict this legislation will be manipulated by well-paid corporate defense lawyers to create complex, expensive and lengthy litigation over the criteria and factors in the bill and whether they apply to a particular case. Unfortunately, one of the great boons of this legislation, to the extent it does not simply deter class actions brought by consumers, is that it will make them more costly, burdensome and complicated.

The so-called Class Action Fairness Act falls short of the expectation set by its title. It will leave many injured parties who have valid claims with no avenue for relief, and that is anything but fair to the ordinary Americans who look to us to represent them in the United States Senate.

I suggest the absence of a quorum.

Mr. President, I am going to speak in favor of the commonsense amendment brought to us by Senators Bingaman and Feinstein. Before I do, though, if I could make a couple personal comments.

I have been in the Senate for 31 years. I came at a time when there was a real effort for Republicans and Democrats to work together, and for White Houses to do so. I have been here during the administrations of President Ford, President Carter, both terms of President Reagan, President George H.W. Bush, both terms of President Clinton, and now into the second term of President George W. Bush.

I have seen terrific majority leaders in both parties, leaders in both parties. Senator Mansfield, Senator Scott, Senator Byrd, Senator Baker, Senator Dole, Senator Mitchell, obviously Senator Daschle. I think of all the times they would work so closely to bring people together. The President, whoever the President was, would do the same.

I can remember times Senator Dole, a partisan, tough-minded Republican, would reach a point as majority leader when he would call Senators from both parties into his office and say: OK, boys, let's see where we go from here. How do we get this legislation done?

Senator Baker would do that. Senator Mansfield was famous for coming out on the floor during evening sessions and picking a few Senators from both sides of the aisle and saying: Come up to the office. We have to chat and work things out. Senator Baker had the ability to do that. He would go down and speak to President Reagan and suggest to him which Democrats, which Republicans, he might call to make things work out.

You also had, during that time, the practice where the two great parties, the Democratic Party and Republican Party, would keep from attacking the leaders of the other party's caucus in either body. They did it because they knew that, while they might oppose each other on one issue today, they were going to have to work together for the betterment of the country the next day.

Now it has broken down. For some reason, something I never thought I would see, nor, I suspect, did any of those leaders I mentioned from either party ever think they would see, it stopped last session when the leader of one party went to the home of the leader of the other party and attacked him in a political campaign, and attacks were then mounted by the national party. I think it was a mistake.

In the years I have talked about, the 31 years of both Republicans and Democrats running the Senate--we have seen it go back and forth a half a dozen times since I have been here--it has worked very well, where you fight for your party, you fight for your majority or minority, but you do not go after the leaders.

I was hoping the last election might be an aberration. Now I see a difference when the Republican National Committee has come out with the most scurrilous, outrageous attack on the Democratic leader, Senator Reid.

It makes no sense whatsoever. Senator Reid spent his years as the deputy Democratic leader helping to get legislation through this place. He worked very closely with two different Republican deputy leaders, both when he was in the majority and in the minority, to move legislation through.

I can think of dozens of times, hundreds of times on this floor when legislation looked like it might not get through, and both Republicans and Democrats were going to Harry Reid as the deputy leader to say: How can we work this out?

He would say: Why don't you leave off these amendments, and I will talk to the Republicans and they will leave off these amendments. We will get it through.

It always worked. The legislation we have before us is not one that Senator Reid favors, but he worked in good faith with the Republican leadership to bring it up. Almost a day after he does that, he gets attacked by the Republican National Committee, a day or so after the President of the United States in his State of the Union message said how we must all work together, and on the day when the President invites Senator Reid down for a cordial family dinner, which is, of course, showing how bipartisan we can be, the Republican National Committee--controlled, of course, by the White House--sends out this scurrilous attack on Senator Reid.

It is a mistake. I would say the same thing if the Democratic Party was doing it to the Republican leadership. It is a mistake because ultimately the Senate consists of only 100 men and women who have the privilege to represent 290 million Americans at any given time. There are so many things we need to get done. We should be working together.

An example: During President Reagan's term, we were facing a real crisis--not a manufactured crisis but a real crisis in Social Security, not the manufactured one we see today, a real one--and we were stuck here on the floor. Neither side seemed to budge, and efforts to do something that might save Social Security seemed lost when two giants of the Senate--I know this for a fact because I was standing right here on the floor--Senator Daniel Patrick Moynihan of New York and Senator Robert Dole, the leaders on the Finance Committee where Social Security reform now seemed founded, were talking, and Pat Moynihan walks over to Bob Dole and says: We have to give this another try. It is far too important to let this fall apart in partisan bickering. Let us make this work. You know the two of us can do it.

I and a couple others who were standing there said: We are all with you.

When I say ``I and a couple others,'' Republicans and Democrats said: We are all for you. You can do it.

They went down and saw President Reagan, talked with him and said: Look, we are going to take another try at it, if you will work with us.

He said: Fine.

And they did. As a result of that, in the 1980s, Social Security was put in solvent standing for 70 years. If we do nothing with Social Security now, it will still be solvent in the year 2045, 2050.

Wouldn't it be nice if we went back to the days of giants in the Senate and Presidents of both parties who wanted to work with the Members of the House and Senate who actually want to get something done, not for partisan gain but for American gain, not for one political party but for all Americans?

Those who came up with the bright idea of attacking Harry Reid, a man who will get reelected his next term, I suspect by even a greater margin than the last landslide he had, ought to step back. They might raise money this way. They might stir up some of the true believers this way. They do nothing for the country. They do nothing for the Nation. All they do is deepen the divides instead of healing them. It would be nice if we could have leaders

who would try to be uniters, not dividers. We haven't had that for a few years. I wish we could.

I digress somewhat. I see the distinguished Chair, a man I knew before he came here, admired in his work as a member of the Cabinet. We are benefited by having him here. I hope that he might be one of those who will come in not with preconceptions but his enormous talent of bringing people together and work with us. I say this somewhat unfairly because under the rules he cannot respond, of course. I hope I have not damaged him irreparably with the Republican Party in Florida, but he has known me long enough to know I mean what I am saying.

This Bingaman-Feinstein amendment is a commonsense amendment. It seeks to rectify one of most significant problems of the class action legislation under consideration by the Senate. As we all know, this class action bill is going to sweep most class actions into Federal court. But then many of the Federal courts refuse to certify multistate class actions because the court would be required to apply the laws of different jurisdictions to different plaintiffs, even if the laws of those jurisdictions are quite similar.

Without this balanced amendment, members of important class actions that involve multiple-State laws may have no place to receive justice. In other words, they get removed from the State court to Federal court, but then the Federal court says: Well, because the State laws may be different, we can't do anything. But you can't go back to State court because you are removed here. It is probably as classical a legal Catch-22 as one could see.

According to 14 of our State attorneys general:

[I]n theory, injured plaintiffs in each state could bring a

separate class action lawsuit in federal court, but that

defeats one of the main purposes of class actions, which is

to conserve judicial sources. Moreover, while the population

of some states may be large enough to warrant a separate

class action involving only residents of those states, it is

very unlikely that similar lawsuits would be brought on

behalf of residents of many smaller states.

The Feinstein-Bingaman amendment would help citizens of States such as my own of Vermont. We have smaller populations. We are only the size of one congressional district, 610,000 people. But it would allow us to join with other injured plaintiffs from other States to have their day in court. Federal courts should be allowed to certify nationwide class actions by applying one State's law with sufficient ties to the underlying claims in the case. This amendment would give Federal judges that power and make it clear that they should not deny certification on the sole ground that the laws of more than one State would apply to the action.

If the Senate is truly interested in passing class action legislation that gives injured citizens from every State a place to seek relief, then all Senators should embrace this commonsense amendment. I hope my colleagues will support this important amendment.

I thank Senators Bingaman and Feinstein for their hard work on the amendment.

Sad News for Vermont

On another issue, I spoke of my small State. I was born in Vermont, a precious State. We have had Leahys there since the 1850s. It is in my heart and soul. I read with pride but with sadness an article on the front page of the Washington Post today about Vermont and the number of our brave men and women who have been called up in the Guard and Reserves. Two States have the highest per capita callup in the Nation-- Hawaii and Vermont, two of the smaller States. We also have the very sad distinction of having the most fatalities, the most soldiers killed per capita of any State in the Union.

I mention this because in our State, everybody knows everybody else. If one person dies, everybody in the State feels it. I have been to those funerals where I have seen people with whom I was in kindergarten, people I grew up with, neighbors of mine or my sister's, people my parents knew. You go to the funeral, you walk into a church, not as a member of the congressional delegation from Vermont--we have all done that--but you go as a friend and neighbor, and that is what you see, friends and neighbors. I will later today put the full article in the Record.

It struck me as to what this means. We have one small town that is about the size of a small town in which my wife and I live in Vermont. They have one country store. It is a small store, but it is important to the town. Everybody goes there. A mother and a son run the store. The son gets called up. He goes bravely, of course. The mother cannot handle the store by herself, and the store closes. The community in many ways has lost its center.

These are the realities of what is happening. Several of us met earlier today from both bodies, both parties, to introduce legislation to increase health benefits for those in the Guard and Reserves who are called up, to improve their retirement situation, make sure they stay healthy, make sure if they have a solely owned business and they get called up, they can at least have health care for their family.

I mention this again not because it is apropos to the legislation--I do not see anybody else seeking recognition; I am not taking away from others' time--but I hope those who are watching or listening to this will read this article about what happens in rural America with these callups.

In my State, the largest community is only 38,000 people. The town I live in has about 1,500 people. They know everybody. I live on a dirt road on the side of a mountain with magnificent views. Again, everybody is on a first-name basis. When somebody gets called up, you know it, you feel it.

This is not a question about whether somebody is for or against the war. In my State, everybody has supported those who have gone. Even though I would suspect the majority of the people in Vermont are opposed to the war, they are all supportive of our troops. But it hurts. It is real. I hope we can bring them home soon.

I was heartened by the elections in Iraq. I was heartened by the efforts of those who would brave in some cases death to go out and vote. I hope those of us in our country who say it is going to be a hard time to vote today because it is raining or it is snowing or it is cold or it is hot or it is inconvenient to go those extra five blocks, or whatever the reason, look at what they did.

I hope that country will soon be able to take care of itself. We are going to spend huge amounts of money in this budget to build schools, improve police forces, build communications, roads, and hospitals all in Iraq. We have those same needs at home. I hope soon they can be on their own. I hope soon our men and women can come home, as many safely as possible.

Mr. President, I yield the floor and suggest the absence of a quorum.

It is with great sadness that I inform the Senate that Virginia ``Ginny'' Cochran of Richmond, VT, died this past Saturday. She was 76.

Ginny Cochran was a native Vermonter originally from Hartland Four Corners. Like her husband Mickey who died in 1998, she attended the University of Vermont. Over the years, the Cochran name became synonymous with Vermont skiing. Ginny and Mickey established their own ski area where thousands of children learned to ski. They instilled a competitive spirit in each of their four children who went on to become internationally known ski racers. One daughter, Marilyn, won a World Cup race in 1969, and another, Barbara Ann, won an Olympic gold medal in 1972. Several of Ginny's grandchildren are already outstanding ski racers.

Ginny Cochran was one of those lifelong Vermonters who personified the essence of what it means to be a Vermonter. She loved the four seasons, she was loved by her community, and she taught countless people how to enjoy freezing weather and beautiful scenery while gliding down snow covered mountains with style.

I ask that a February 6, 2005, article in the Burlington Free Press about the extraordinary life of Ginny Cochran be printed in the Recrod.

The article follows.

Mr. President, I am pleased to take this opportunity to commend a longtime friend and adviser who has spent his career in service to Vermont and American agriculture, Harold J. Howrigan of Fairfield, VT.

Harold has served the dairy industry long and well, bringing his farmer's ingenuity, common sense and perseverance to his efforts. He has served on the St. Albans Co-operative Board of Directors since 1981 and at the upcoming 2005 Annual Meeting he will be stepping down to enjoy time with his family on their home farm in Fairfield.

Harold, his wife Anne and their sons operate two farms comprised of over 500 head of cattle, some 1,800 acres of cropland and forest, including a significant maple sugaring operation. Harold and Anne have opened their home and the farm to many dairy industry leaders, international dignitaries, government officials, co-op customers and, I daresay, even a campaign commercial or two along the way. Anyone who has had the good fortune to visit the Howrigans enjoys the beautiful views and witnesses the hard work and pride that Harold and his family take in the stewardship of their farming operations.

As much as he loves that line of Fairfield hills, Harold has spent considerable time away from his farming operation serving his community and

Vermont agriculture. Locally, Harold is active in the St. Patrick's Church and the Franklin County Maple Producers Co-op. On the State level, he has served as president of the Green Mountain Dairy Farmers Federation of Cooperatives and as a director with both the Vermont Maple Sugar Makers Association and the Vermont Dairy Promotion Council.

Regionally, Harold was the chairperson of the Vermont Northeast Interstate Dairy Compact Commission. In fact, Harold's tireless efforts were a key force in the establishment and successful implementation of the Northeast Interstate Dairy Compact. The long-standing relationship between Harold and the Cooperative with the Vermont Congressional Delegation was critical in the passage of the Northeast Interstate Dairy Compact at the national level which provided stability to dairy farmer income without adverse effects on consumers. He has also served as Chair of the Council of Northeast Farmer Cooperatives.

In addition to championing the Compact, Harold has been active in other national dairy industry organizations serving the interests of dairy farmers beyond Vermont on the U.S. Dairy Export Council, and the National Milk Producers Federation. As Chair of the National Dairy Promotion and Research Board, he was awarded the Richard E. Ling Award for the distinguished service in January of 2001.

The St. Albans Cooperative Creamery was most fortunate to benefit from Harold's leadership over his years as Director beginning in 1981, and as board president since 1988. In his 24 years with the Cooperative, Harold has seen the Cooperative increase in yearly milk volume to over a billion pounds, build a partnership with Ben & Jerry's ice cream, expand its territory into New York State, acquire the Independent Dairymen's Association and develop a strategic relationship with Dairy Farmers of America and Dairy Marketing Services.

Throughout his distinguished career, Harold has remained among my most trusted advisers on farm policy. I know that I can always count on him to provide the unvarnished truth, based on experience forged on a Vermont dairy farm with its tradition of hard work, common sense, simplicity, love of family and service to community, state and country. I join countless Vermonters and Americans as we all thank Harold for his years of service and consider myself fortunate to call him my friend.

Mr. President, I am pleased today to join Senators McCain and Cantwell in introducing important legislation to increase the number of frequencies available for low power radio stations in America. Low power stations serve their communities with broadcasting that reflects local needs and local preferences. In this way, low power FM offers a valuable counterpoint to nationwide media consolidation. As National Public Radio reported this morning, low power FM has a large following of listeners tired of hearing the same programming across the country. For this reason, I have been a strong supporter of low power FM for many years now. In fact, I recently urged FCC Chairman Powell to expedite licensing for new low power stations.

Unfortunately, for many years now the number of low power FM stations the FCC could license has been limited by unrealistic and unnecessary rules requiring these small stations to find available frequencies far from any full power broadcaster. Interference must be avoided if we are to make use of the

airwaves. The current rules, however, go beyond what is necessary to protect full power stations from interference and, instead, protect them from competition. This bill will reduce the unnecessary restrictions on low power FM stations.

Of course, the need for low power FM radio must be balanced against other important uses of nearby frequencies. I have worked hard to protect reading services for the blind, and this bill protects those services by retaining the third-adjacent rule where such services would be affected. In addition, this bill protects commercial broadcasters of all sizes from actual interference by leaving intact the FCC's expedited interference claim review procedures.

I look forward to working with all the parties involved to strengthen local broadcasting.

Mr. President, I am pleased today to join Senators McCain and Cantwell in introducing important legislation to increase the number of frequencies available for low power radio stations in America. Low power stations serve their communities with broadcasting that reflects local needs and local preferences. In this way, low power FM offers a valuable counterpoint to nationwide media consolidation. As National Public Radio reported this morning, low power FM has a large following of listeners tired of hearing the same programming across the country. For this reason, I have been a strong supporter of low power FM for many years now. In fact, I recently urged FCC Chairman Powell to expedite licensing for new low power stations.

Unfortunately, for many years now the number of low power FM stations the FCC could license has been limited by unrealistic and unnecessary rules requiring these small stations to find available frequencies far from any full power broadcaster. Interference must be avoided if we are to make use of the

airwaves. The current rules, however, go beyond what is necessary to protect full power stations from interference and, instead, protect them from competition. This bill will reduce the unnecessary restrictions on low power FM stations.

Of course, the need for low power FM radio must be balanced against other important uses of nearby frequencies. I have worked hard to protect reading services for the blind, and this bill protects those services by retaining the third-adjacent rule where such services would be affected. In addition, this bill protects commercial broadcasters of all sizes from actual interference by leaving intact the FCC's expedited interference claim review procedures.

I look forward to working with all the parties involved to strengthen local broadcasting.

Mr. President, I am pleased to introduce today the Upper Connecticut River Partnership Act. This legislation will help bring recognition to New England's largest river ecosystem and one of our Nation's fourteen American Heritage Rivers.

The purpose of this legislation is to help the communities along the river protect and enhance their rich cultural history, economic vitality, and the environmental integrity of the river.

From its origin in the mountains of northern New Hampshire, the Connecticut River runs over 400 miles and eventually empties into Long Island Sound. The river forms a natural boundary between my home state of Vermont and New Hampshire, and travels through the States of Massachusetts and Connecticut. The river and surrounding valley have long shaped and influenced development in the New England region. This river is one of America's earliest developed rivers, with European settlements going back over 350 years. The industrial revolution blossomed in the Connecticut River Valley, supported by new technologies such as canals and mills run by hydropower.

I am pleased that the entire Senate delegations from Vermont and New Hampshire have cosponsored this bill. For years, our offices and our States have worked together to help communities on both sides of the river develop local partnerships to protect the Connecticut River valley of Vermont and New Hampshire. And, while great improvements have been made to the river, its overall health remains threatened by water and air pollution, habitat loss, hydroelectric dams, and invasive species such as the zebra mussel.

Historically, the people throughout the Upper Connecticut River Valley have functioned cooperatively and the river serves to unite Vermont and New Hampshire communities economically, culturally and environmentally.

Citizens on both sides of the river know just how special this region is and have worked side by side for years to protect it. Efforts have been underway for some time to restore the Atlantic salmon fishery, protect threatened and endangered species, and support urban riverfront revitalization

In 1993, Vermont and New Hampshire came together to create the Connecticut River Joint Commissions--a unique partnership between the states, local businesses, all levels of government within the two states and citizens from all walks of life. This partnership helps coordinate the efforts of towns, watershed managers and other local groups to implement the Connecticut River Corridor Management Plan. This Plan has become the blueprint for how communities along the river can work with one another with Vermont and New Hampshire and with

the federal government to protect the river's resources.

The Upper Connecticut River Partnership Act would help carry out the recommendations of the Connecticut River Corridor Management Plan, which was developed under New Hampshire law with the active participation of Vermont citizens and communities.

This Act would also provide the Secretary of the Interior with the ability to assist the States of New Hampshire and Vermont with technical and financial aid for the Upper Connecticut River Valley through the Connecticut River Joint Commissions. The Act would also assist local communities with cultural heritage outreach and education programs while enriching the recreational activities already active in the Connecticut River Watershed of Vermont and New Hampshire.

Lastly, the bill will require that the Secretary of the Interior establish a Connecticut River Grants and Technical Assistance Program to help local community groups develop new projects as well as build on existing ones to enhance the river basin.

Over the next few years, I hope this bill will help bring renewed recognition and increased efforts to conserve the Connecticut River as one of our nation's great natural and economic resources.

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

Mr. President, I am pleased to introduce today the Upper Connecticut River Partnership Act. This legislation will help bring recognition to New England's largest river ecosystem and one of our Nation's fourteen American Heritage Rivers.

The purpose of this legislation is to help the communities along the river protect and enhance their rich cultural history, economic vitality, and the environmental integrity of the river.

From its origin in the mountains of northern New Hampshire, the Connecticut River runs over 400 miles and eventually empties into Long Island Sound. The river forms a natural boundary between my home state of Vermont and New Hampshire, and travels through the States of Massachusetts and Connecticut. The river and surrounding valley have long shaped and influenced development in the New England region. This river is one of America's earliest developed rivers, with European settlements going back over 350 years. The industrial revolution blossomed in the Connecticut River Valley, supported by new technologies such as canals and mills run by hydropower.

I am pleased that the entire Senate delegations from Vermont and New Hampshire have cosponsored this bill. For years, our offices and our States have worked together to help communities on both sides of the river develop local partnerships to protect the Connecticut River valley of Vermont and New Hampshire. And, while great improvements have been made to the river, its overall health remains threatened by water and air pollution, habitat loss, hydroelectric dams, and invasive species such as the zebra mussel.

Historically, the people throughout the Upper Connecticut River Valley have functioned cooperatively and the river serves to unite Vermont and New Hampshire communities economically, culturally and environmentally.

Citizens on both sides of the river know just how special this region is and have worked side by side for years to protect it. Efforts have been underway for some time to restore the Atlantic salmon fishery, protect threatened and endangered species, and support urban riverfront revitalization

In 1993, Vermont and New Hampshire came together to create the Connecticut River Joint Commissions--a unique partnership between the states, local businesses, all levels of government within the two states and citizens from all walks of life. This partnership helps coordinate the efforts of towns, watershed managers and other local groups to implement the Connecticut River Corridor Management Plan. This Plan has become the blueprint for how communities along the river can work with one another with Vermont and New Hampshire and with

the federal government to protect the river's resources.

The Upper Connecticut River Partnership Act would help carry out the recommendations of the Connecticut River Corridor Management Plan, which was developed under New Hampshire law with the active participation of Vermont citizens and communities.

This Act would also provide the Secretary of the Interior with the ability to assist the States of New Hampshire and Vermont with technical and financial aid for the Upper Connecticut River Valley through the Connecticut River Joint Commissions. The Act would also assist local communities with cultural heritage outreach and education programs while enriching the recreational activities already active in the Connecticut River Watershed of Vermont and New Hampshire.

Lastly, the bill will require that the Secretary of the Interior establish a Connecticut River Grants and Technical Assistance Program to help local community groups develop new projects as well as build on existing ones to enhance the river basin.

Over the next few years, I hope this bill will help bring renewed recognition and increased efforts to conserve the Connecticut River as one of our nation's great natural and economic resources.

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

Only.

Mr. President, I have been in the Senate for 31 years. This is one of the most enjoyable colloquies I have ever had.

I hope that the Philadelphia Eagles and actually all of their fans recognize what a great fan they have in the distinguished senior Senator from Pennsylvania. We all know him as one of the most knowledgeable and best lawyers ever to serve in the Senate in either party. But we saw another side of him today. Anybody who can recount effortlessly--I say for those reading the Record, it was without a single note--the history of the Eagles and give a play by play recounting, this recounting was a tour de force of the first order. For Eagles fans, I want you to know his legal expertise is every bit as good.

I grew up with a different sport--baseball--in Vermont, where my home is only a couple hours' drive from Fenway Park. The distinguished Presiding Officer knows what that is like because he is even closer. We all will wait for next year and the Red Sox.

As a child growing up, my father, who had some interest in politics, used to say there will be a day when Vermont will actually elect a Democrat to the U.S. Senate. Everybody told him this would never happen in his lifetime. I am delighted that it did.

I was thinking about my father today. It was 21 years ago today that he left this Earth. He got to see this one and only Democrat, and he got to be there twice on election night and twice to see me sworn into this body, which even after six times is still one of those moments one will never forget.

We waited in Vermont from 1918--my father was 18 years old when the Red Sox won the championship--until this past year. There was some celebration. I might mention that I thought maybe there was some inspiration from Paul McCartney, who performed in the halftime show. I was very disgusted with the halftime show last year--at something nobody even noticed until the next day, when people talked about it on Web sites. The photographs of Miss Jackson became the most visited Web site in America, which gives you some idea of what our priorities are. What I found disgusting at that halftime show was Kid Rock ripping a hole in the American flag and wearing it as some kind of a poncho and then throwing it on the ground at the end of his song. I found that to be very offensive.

I would hope that some of the keepers of morality in this country, who have had a wonderful time sending out fundraising letters based on something nobody really saw until the next day and spending just as much time trying to sell patriotism to everybody, would say how disgusted they are at the actions of a rock singer who would so desecrate the American flag--to the roaring cheers of too many people in the audience. I thought that was outrageous. Perhaps we needed somebody from the United Kingdom to come over here and give us a rousing halftime show, which it was. Actually, the game got better after that. Maybe that is in the eyes of the beholder, too. But I appreciate what the Senator from Pennsylvania said.

I also note that in my 31 years here, it is the first time I heard the unanimous consent request Senator Specter made. Perhaps it was made before. I have to think that when future historians go back into the Record and find that Senators actually did that, they would probably applaud that we know what the Record is.

I recall my days in law school having a summer job and researching the Congressional Record for the then-Federal Power Commission, which later became the Department of Energy, and trying to figure out what was actually said and what was not said, what order it was said in, and why some Senators appeared to have said the same thing twice. When I came to the Senate, I must admit some of the Senators--no longer with us, God rest their souls--would tend to say the same thing

twice, but that was not intentional on their part, or at least they were unaware of it. But I commend the Senator from Pennsylvania for making a unanimous consent request that actually will make sense for those who read the Record.

I thank my friend.

I might say, I worked with Sir Paul and his wife on the issue of landmines and landmine removal. I must admit that he has aged better than some of us who were Beatle fans when he first started. He has his own hair, among other things.

The Senator is correct to say that sometimes on Monday afternoon, we digress. I give fair warning to the Senator from New Hampshire, now presiding, that one of these digressions in about 3 or 4 weeks when the maple syrup crop comes in, I will be extolling the virtues of Vermont maple syrup being the finest in the world. I will also compliment those from our neighboring States who do a pretty good job with their maple syrup.

Today, we are considering the first of several bills that I am afraid are advanced not with an interest of what is best for the American consumer but advanced by corporate special interests to dramatically limit the public's access to their courts. I am going to oppose this so-called Class Action Fairness Act for a very simple reason: it is not fair.

This legislation would make it harder for citizens to protect themselves against violations of State civil rights or consumer, health, or environmental protection laws--things we take seriously in my own State and most others do in theirs. It will make it harder because these cases will be forced out of the local State courts. Aside from being convenient, State courts have experience with the legal and factual issues involved in these important cases. This legislation sweeps these cases into Federal courts, erects new barriers to lawsuits, and places new burdens on the plaintiffs.

Let me give you an example. In the case of legal rights it would take from the citizens of my own State, this legislation would deprive Vermonters the right to band together to seek relief in their State courts--even if the harm occurred in Vermont and the principal defendant has a substantial presence in Vermont. That is a highhanded override of the rights of the American people. You have to ask who it would benefit. Obviously, it benefits the wealthy and powerful special interests.

This legislation also overrides the laws and legislatures in our State governments. I find it interesting that many colleagues who have spoken over and over again on how we have to stand up for the rights of our States are so willing, when some of their corporate backers come up with legislation like this, to simply slam the door on their own States. Indeed, the National Conference of State Legislatures wrote to us last week to note that this bill ``undermines our system of federalism, disrespects our State court system, and clearly preempts carefully crafted State judicial processes which have been in place for decades regarding the treatment of class action lawsuits.''

I ask unanimous consent that that letter be printed in the Record.

Here the National Conference of State Legislatures is saying to us: Why are you being so heavy-handed that you feel the 100 Members of the Senate can just wipe out the legislatures of all 50 States on matters of their States' laws?

Fourteen State Attorneys General wrote to our Senate leaders today to express their collective view that ``despite improvements over similar legislation considered in prior years, [they] believe S. 5 still unduly limits the right of individuals to seek redress for corporate wrongdoing in their State courts.''

Again, they are saying: What gives you such wisdom in the U.S. Senate that you can completely throw out 50 States and say, We know far better than they could ever know in their years and decades of experience? The letter urges passage of amendments to be offered by Senators Bingaman, Pryor, and Kennedy. This letter is signed by the Attorneys General from New York, Oklahoma, California, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, New Mexico, Oregon, Vermont, and West Virginia. I ask unanimous consent that it be printed in the Record.

I know class action issues have been raised by Senators Kohl, Feinstein, Schumer, Dodd, Carper, Landrieu, and others. While I may disagree with them on some parts of this, I do so respectfully because I know how hard they have worked.

In the last Congress, they were able to negotiate some procedural improvements. They reined in some of the worst aspects of previous class action bills. One improvement was to restrict the use of worthless coupon settlements. I strongly support this improvement, which is a targeted provision that goes after a real class action abuse, not one that is just made up by special interests.

Unfortunately, there are other aspects that fail to achieve their intended goals. For example, two narrow exceptions have been negotiated to allow a few local controversies to remain in State court. But the exceptions to removal to Federal court touch on only a thin sliver of the class action cases this bill would affect--only when plaintiffs and primary defendants are from the same State--and even then it will do more harm than good with the complicated formula that will cause costly and time-consuming litigation. So this just increases the cost and increases the litigation.

Another provision seeks to reduce the delay plaintiffs can experience when a case is removed to Federal court by setting a time limit for appeals of remand orders. But no measure

is included in the bill to set a timeline for the district court to rule on the actual remand motion. What this means in layman's terms is a party can pluck one of these class actions out of State court and put it in Federal court, and if the Federal court rules against you on a remand, you have a right to appeal. But what do you do if they never rule? The case could sit there year after year and with no resolution. Litigants could die. People who have been harmed could die. People could move away, and nothing happens.

Senator Feingold is going to offer an amendment to set a reasonable time limit for the district court to rule on remand orders. It does nothing to change the bill. It says you cannot pocket veto a case by sticking it away in a federal court docket somewhere. You have to rule one way or the other. We should all embrace that commonsense improvement.

I am also concerned that this bill will deny justice to consumers and others in class actions that involve multiple State laws. The recent trend in Federal courts is not to certify class actions if multiple State laws are involved. This bill, therefore, could force nationwide class actions to Federal court. Once they are removed to Federal court, you have a Catch-22. They have to be dismissed because they involve too many State laws.

If this legislation is really about transferring class actions to Federal court instead of being a pro-business vehicle for simply dismissing legitimate class actions, then the supporters of this legislation should want to solve this real Catch-22 problem. Senator Bingaman has an amendment to do just that. He is a former attorney general. He understands this. I look forward to debating this issue on the Senate floor.

Of course, the legislation covers more than just class actions. Individual personal injury actions, consolidated by State courts for efficiency purposes, are not class actions. Despite the fact that a similar provision was unanimously struck from the bill during the markup of class actions legislation in the Judiciary Committee last Congress, despite the fact that every single Republican, every single Democrat voted to strike this provision, now mass torts are again included in the bill. Again, that makes no sense. Federalizing these individual cases will delay and possibly deny justice for victims suffering real physical injuries. It will be a boon to the makers of Vioxx, but certainly will not help those who took Vioxx.

Mass tort cases are not class actions. They have not been analyzed under rule 23's standards or State law equivalents to rule 23. They are an important means by which groups of injured people have long been able to pursue remedies against those who have harmed them.

Mass tort cases address injuries to citizens' health from dangerous medical products, injuries to their property and their health from environmental disasters, and injuries to their rights and liberties from widespread mistreatment in the workplace. There are entirely different procedural vehicles to reach justice in class actions. They should not be lumped in with class actions. Senator Durbin has an amendment that would leave mass tort actions in State courts where they belong.

I am old enough to remember the civil rights battles of the 1950s and 1960s and the impact of class actions in vindicating basic rights through our courts. The landmark Supreme Court decision in Brown v. Board of Education was the culmination of appeals from four class action cases--three from Federal court decisions in Kansas, South Carolina, and Virginia, and one from a decision by the State supreme court of Delaware.

Only the supreme court of Delaware--the State court, not the Federal court--got the case right by deciding for the African-American plaintiffs. The State court justices understood they were constrained by the existing Supreme Court law but, nonetheless, held that the segregated schools of Delaware violated the 14th amendment. Before any Federal court did so, a State court rejected separate and unequal schools.

Today we take that for granted, but it was not because those cases went into Federal court that the civil rights of African Americans were determined; it was because they were in State court. Indeed, many civil rights advocates, including the Lawyers' Committee for Civil Rights Under Law, the Leadership Conference on Civil Rights, the Mexican American Legal Defense and Education Fund, and the National Asian Pacific Legal Consortium, have written to Senators in opposition to this legislation and in support of Senator Kennedy's amendment to exempt civil rights and wage and hour cases from the bill. I am proud to cosponsor his amendment, and I look forward to the debate on it.

The legislation has also been criticized by nearly all the State Attorneys General in this country. I understand that at least 43 of the 50 State Attorneys General have expressed concern that S. 5 could limit their powers to investigate and bring actions in their State courts against defendants who cause harm to their citizens because in certain instances they file suit as the class representative for the consumers of their State.

I expect Senator Pryor, a distinguished former State attorney general himself, to bring this issue to the floor with a clarifying amendment.

Some special interest groups are distorting the state of class action litigation by relying on a few anecdotes in an ends-oriented attempt to impede plaintiffs from bringing class action cases. We should take steps to correct actual problems as they occur. Simply transferring most suits into Federal court will not correct the real problems faced by plaintiffs and defendants.

In fact, this Congress and past Congresses have federalized so many criminal cases that used to be in State courts and dumped them into the Federal courts that it is increasingly difficult to even get a civil case heard in Federal court. So many things are handled by local prosecutors, such as Senator Specter and myself when we were prosecutors, by local law enforcement, but because they are interesting matters, we have succumbed to the temptation to federalize case after case that State authorities have always handled very well. These criminal cases are now in the Federal courts, and the Federal courts are overloaded with them. Now we are going to transfer a whole lot more cases into Federal courts.

Defrauded investors, deceived consumers, victims of defective products and environmental torts, and thousands of other ordinary people have been able to rely on class action lawsuits in our State court system, and there they have sought and received justice. We all know that without consolidating procedures such as class actions, it might be impossible for victims to obtain effective legal representation.

Companies tend to pay their defense lawyers by the hour. They are well paid. Plaintiffs' lawyers in class actions tend to work without pay for the possibility of obtaining a portion of the proceeds, if they are successful. It may well prove uneconomical for counsel to take on cases against governmental or corporate defendants if they must do so on an individual basis. It may be that individual claims are simply too small to be pursued.

Sometimes that is what the cheaters count on; it is how they get away with their schemes. Cheating thousands of people just a little is still cheating, or millions of people just a little creates millions of dollars for one person with nothing to stop them from doing it. Class actions allow the little guys to band together to afford a competent lawyer to redress wrongdoing.

Whether those regular citizens are getting together to force manufacturers to recall or correct dangerous products, or to clean up after devastating environmental harms that endanger their children or their neighborhoods, or to vindicate the basic civil rights to which they are entitled, they are using class actions. Why make it more difficult or costly for them to right those wrongs?

As the New York Times noted in an editorial last week opposing this bill, the real objective of this legislation is ``to dilute the impact of strong State laws protecting consumers and the environment and to make it harder for Americans to win redress in court when harmed by bad corporate behavior.''

We have very strong environmental laws in Vermont, and we are very

proud of them. Now we see this Congress about to say to the Vermont Legislature: We can apply much lesser standards; we will just take it away from any enforcement you already have.

I ask unanimous consent that the New York Times editorial be printed in the Record.

This so-called Class Action Fairness Act falls short of the expectation set forth by its title. It will leave many injured parties who have valid claims with no avenue for relief, and that is anything but fair to ordinary Americans who look to us to represent them in the Senate.

I seem to have a touch of laryngitis which is an occupational hazard for Senators. I will not speak further, but I will come back to this issue in the future. I yield the floor.

Mr. President, I ask unanimous consent that I be included as a cosponsor of S. Res. 38.

Mr. President, for the most part, this has been a substantive debate. Actually, it has been a necessary debate. Now, partisans on the other side of the aisle at times have tried to smear anyone who has voiced concern about this nomination, notwithstanding that anyone who listened to the statements of those of us who oppose this nomination know that each of us has praised the journey Alberto Gonzales and his family have taken.

I am a grandson of immigrants who came to this country not even speaking the language, so I have unbounded respect for all that he and his family have accomplished. In fact, I am the first Leahy to get a college degree; my sister is the second. So I applaud anybody who takes such a journey.

On Tuesday, the Senate heard from Senators Feinstein, Schumer, Kennedy, Mikulski, Dayton, and Stabenow. Yesterday, the debate on this side of the aisle included eloquent and powerful statements by Senators Byrd, Durbin, Jack Reed, and Jeffords, all stating their reasons for opposing this nomination on the merits. No one should be accusing these Senators of doing anything except their constitutional duty. Today, we heard as well from Senators Dodd, Obama, Cantwell, Bingaman, Johnson, Levin, and Feingold. Each has spoken from conviction. They are voting their conscience.

We have also made time to hear from one of our newer Democratic Senators, Mr. Salazar of Colorado, regarding the assurances and commitments he has obtained from the nominee and on which he is relying in his vote. I also note that today he returned to the Senate floor to make another important statement that rejected those who have tried to play a divisive ethnic card. He spoke about the true meaning of diversity and our national journey toward equal rights for all. Senator Salazar spoke to me before he spoke on the floor. I commend him for what he has done. I thank him for his remarks. It is what I would have expected from a man of his integrity and quality.

Senator Biden observed during the confirmation hearing that none of us came to that hearing having determined to vote against the nomination. In fact, most of us, I would say, if not all of us on the Democratic side of the aisle in the Judiciary Committee came there assuming we were going to vote for him. We listened. We asked questions. We sought answers. We weighed the record.

It was not an easy decision for any of us. Each of us would have liked to have supported the first Hispanic nominee to be Attorney General. We each made a decision on the merits of the nomination. We did not ignore his judgments that contributed to the scandals in the war against terror and the mistreatment of detainees around the world. Some have said that some of those positions were embarrassing. They were a lot more than embarrassing; they were a complete scandal.

When this nomination was announced last year, many of us were inclined to support Judge Gonzales. But as the confirmation process unfolded, one by one, members of the Judiciary Committee began to have doubts. Many were troubled by the nominee's refusal to engage with us in an open discussion of his views on a wide range of issues.

I was particularly concerned because I had actually sent to him and to the Republicans in the committee a number of the questions I was going to ask so he would have plenty of time to prepare to answer. Instead, he did not answer.

For some, the key question was how Judge Gonzales interprets the scope of Executive power and his belief that the President possesses authority to ignore our laws when acting as Commander in Chief. No President of the United States can ignore our laws, no President of the United States is above the law any more than any of us are above the law. For others, the tipping point was the nominee's continued adherence to flawed legal reasoning regarding torture, a stubborn commitment betraying seriously poor judgment. Finally, and deeply troubling to many of us, is the nominee's lack of independence from the President.

In the end, after serious consideration of the record, each of us arrived at the same conclusion: In good conscience, we could not vote for this nomination.

Now, some have talked about the legal memos he was involved in as legal niceties. Well, Mr. President, torture is not a legal nicety, especially if you are the person being tortured. Those of us who have been in the military or who have had members of our family in the military have always hoped we would hold to the highest standards so we could demand that other countries do the same.

It is wrong for partisans to castigate Senators for debating this nomination

and for considering the critical role this nominee played in the development of legal policies that were kept hidden for a couple years, but when they were brought forward by the press, not in answer to questions by Members of Congress--the press did our work and brought them forward--those so-called legal niceties could not stand the light of day.

Consistent with my oath of office, the commitment I have had to the people of Vermont for over 30 years, I will vote my conscience again today. I urge each and every Senator to do the same. Review the record, truly review the record and the actions of this nominee over the past 4 years and vote accordingly.

I do not think I have ever been on the floor of this Senate and predicted vote totals. I am not going to today. But I will predict this: Democratic Senators will not vote as a block. Some will vote against this nomination; some will vote in favor of this nomination. They will do so not on the basis of some party caucus position but as individual Senators. I urge all Senators--Republicans and Democrats and Independent--to approach this vote in that way, on the merits, after you review the record in good conscience. This should not be a party- line vote on either side of the aisle but one where each Senator votes his or her best judgment.

Many Senators here today no doubt believe that the President is owed a high degree of deference in his Cabinet choices. I feel that way. But that does not erase our constitutional obligations as Senators. We have a duty to advise and consent, not to listen and rubberstamp. I take that responsibility very seriously, especially in the case of the Attorney General. The Attorney General is unique among Cabinet officers. You can give a lot more flexibility to other Cabinet officials whose main purpose is simply to state the position of the President of the United States. Whether you agree with the position, that is their duty. So you give a lot more deference, and you say: Well, they are going to state the position of the President. We can vote for them.

But the Attorney General is different. He or she is the top Federal law enforcement officer in the land. The power and discretion of the Attorney General is enormous. The Attorney General has to have sufficient independence to uphold the law and enforce the law, even if doing that serves to embarrass or disadvantage the President, even if it means taking a position contrary to what the President may want, because you have to enforce the law.

Now, when Judge Gonzales was designated and appeared in the White House with the President, he offered a very significant insight into how he views the role of the Attorney General. He emphasized how much he looked forward ``to continuing to work with friends and colleagues in the White House in a different capacity on behalf of our President.''

During his confirmation hearing, he appeared to continue to serve as a spokesman for the administration and to be its chief defense lawyer on a wide variety of important matters. His defenders here on the Senate floor have excused his answers by characterizing them as the views of the administration.

We are voting on the Attorney General of the United States, not the Attorney General of the President. The Attorney General must represent the interests of all Americans and is the nation's chief law enforcement officer.

One of the key questions raised by this nomination is whether, if confirmed as Attorney General, the nominee will serve not just this President but all the American people, and whether he will show the independence necessary to enforce the law. We have to know that he is there to represent all of us. We have to know that he can enforce the law and not be worried about friends, colleagues, or benefactors at the White House. The Attorney General's duty is to uphold the Constitution and the rule of law, not try to find ways to circumvent it to fit the desires of any President.

Actually, the President, when you come right down to it, as well as the Nation, are best served by an Attorney General who gives sound legal advice and takes responsible action without regard to political considerations. Others in the Cabinet are there to just voice the opinions of the President. The Attorney General has to be a lot more independent.

I raised this matter of independence with Judge Gonzales when he testified, and I reiterated it in a letter I sent to him before his hearing. I ask unanimous consent that letter be printed in the Record.

I was not surprised to hear him say that the responsibilities of the Attorney General are different than those as White House Counsel. But I did not see that during the hearings. He deferred to the official policies of this administration throughout the Judiciary Committee proceedings.

When asked about the Bybee memo, he said:

I don't have a disagreement with the conclusions then

reached by the Department.

And he stated a patently false reading of the torture convention that would allow for foreigners captured overseas to be subjected to cruel, inhuman, and degrading treatment at the hands of American captors or surrogates. He appeared to accept the notion that the President has the authority to immunize somebody to commit torture under his command.

A letter signed by a number of high-ranking former military officers, including the former head of the Joint Chiefs, GEN John Shalikashvili, said the interrogation policies that Judge Gonzales helped to define ``have fostered greater animosity toward the United States, undermined our intelligence-gathering efforts, and added to the risks facing our troops serving around the world.''

The best evidence we have is that he rejected the advice of Secretary Powell and career military officers when he recommended to the President the Geneva Conventions should not apply to the conflict in Afghanistan. Admiral John D. Hutson, the former Judge Advocate General of the Navy, testified to the Judiciary Committee that the advice given by Judge Gonzales to the President on this point was ``shallow in its legal analysis, short-sighted in its implications, and altogether ill- advised. Frankly, it was just wrong.''

These military men are joined in opposition to this nomination by a large number of organizations, including the Leadership Conference on Civil Rights, the La Raza Centro Legal, and the Mexican-American Political Association. Three leading human rights organizations, Human Rights Watch, Human Rights First, and Physicians for Human Rights, none of which have ever opposed a nomination before, did so for the very first time. They acknowledge that the struggle to stamp out torture around the world ``has been made harder by the legal positions adopted by the Bush Administration, including Mr. Gonzales's refusal to state that a President could not lawfully order torture.'' The Congressional Hispanic Caucus and the Mexican American Legal Defense and Educational Fund both issued statements stating that they cannot support this nomination. I ask unanimous consent to include in the Record a list of organizations opposing or not supporting the nomination.

While I have heard partisan attacks from the other side of the aisle, I have not heard Republicans offer a strong defense of Judge Gonzales's actions and judgment. What they come back to again and again is his inspirational life story. Having an Hispanic American serve as Attorney General is overdue and something to which I look forward. Having an African American serve as Attorney General is, likewise, overdue. In his letter to the Judiciary Committee, retired Major General Melvyn Montano may have said it best: ``Judge Gonzales should be evaluated on his record, not his ethnicity.''

At particular moments in our history, the Senate at its best can be the conscience of the Nation. The history books and our children and grandchildren will look back on these times and make their own judgments about how worthily the Senate has served that role as we confront any number of difficult issues in these challenging times. But I do believe that, whatever the outcome of this confirmation proceeding, it is worthy of the Senate that we at least held this debate. It is worthy of the Senate that these issues were deemed important enough to discuss for several days on the floor of the United States Senate. To have wished them away or to have just glossed over them would have been a disservice not only to today's generations of Americans, in and out of uniform, but also to tomorrow's generations of Americans. And it would have been a disservice to the Senate that we all so deeply respect.

I have deeply believed that it should concern the Senate that we have seen departures from our country's honorable traditions, practices, and established law in the use of torture, originating at the top ranks of authority and emerging at the bottom. At the bottom of the chain of command, we have seen a few courts-martial, but at the top we have seen medal ceremonies, pats on the back, and promotions.

At his recent inaugural address, I praised President Bush for his eloquent words about our country's historic support for freedom. But to be true to that vision, we need a government that leads the way in upholding human rights, not one secretly developing legalistic rationalizations for circumventing them. We need to climb our way back to the high moral ground that has distinguished our great country and that has been an inspiration to the whole world.

Members of the Senate have a solemn obligation to uphold the law and the Constitution. Each of us has to decide whether the nominee has the sound judgment and the independence required to be Attorney General. I would have been willing to vote for Judge Gonzales in a number of different positions of Government, but not in this one. I wish we could vote for his life story and not for the actual record. Unfortunately, we are voting on the record. I ask each Senator to consider it.

I know that each will consult his or her conscience in reaching a decision, and that is in keeping with the best traditions of the Senate.

If I have time remaining, I yield it back.

Mr. President, earlier this week, for the second time in less than 3 years, King Gyanendra of Nepal dismissed the multiparty government and declared a state of emergency suspending fundamental constitutional rights. Apparently, he will assume the duties of the deposed Prime Minister and appoint a new cabinet.

Throughout its troubled past, Nepal has suffered from the neglect and often violent and corrupt misrule of many monarchs. For that reason, those familiar with its history may not be completely surprised by this unfortunate development.

Yet one would have thought that in the 21st century, this type of thing would, by now, be a distant memory. At a time when a vicious Maoist insurgency is gaining ground in Nepal, it would be hard to conceive of a worse time for the King to repeat his past mistake.

There is no military solution to this conflict. Nepal is a place where, not unlike Afghanistan, a handful of extremists with rifles and explosives can wreak havoc and easily disappear into the rugged countryside. By terrorizing rural villagers and exploiting the Government's neglect of them, the Maoists have steadily extended their reach to large areas of the country.

The Nepalese army, while somewhat more effective than a few years ago when it performed little more than ceremonial duties, has likewise alienated much of the rural population by arbitrarily arresting, disappearing and killing civilians suspected of sympathizing with the Maoists. Today, the army, rather than defending democracy, is defending the King. It is clear that the King and the army concocted this together, despite having assured the UN High Commissioner for Human Rights last week that concerns about violations of human rights would be addressed.

This year, the United States plans to provide some $40 million in economic aid to Nepal. Much of this is channeled by USAID through nongovernmental organizations. But we are also providing support to the Nepalese government, as well as training and equipment to the Army. In fact, several months ago we approved the transfer of $1 million in fiscal year 2004 military equipment that had not initially been appropriated for Nepal.

The Indian government, to its credit, issued a strong statement critical of the King's actions. The State Department has also called for the immediate restoration of multiparty democracy. King Gyanendra is on notice that he will be held responsible for infringement of the rights of free speech and assembly, or abuses of citizens who have defended human rights and democracy.

The State Department should also make clear that unless democratic government and fundamental rights are promptly restored, the United States will cut off aid to the government and the army under Section 508 of the Foreign Operations Act which was designed to deter and punish this type of act. Regardless of whether or not the King may have acted within his authority under Nepal's constitution, and I do not know if he did or not, that is not the issue. The intent of our law to safeguard democracy is clear. The price is losing U.S. aid. Furthermore, if the $1 million in military equipment previously transferred has not yet been delivered, it should be withheld.

Everyone who has followed Nepal's recent history would agree that its 10 year ``experiment'' with democracy has not been easy. Democracy is never easy, and no one should minimize the threat the Maoists pose. But the answer is not to undermine democracy. The answer, as President Bush expressed in his Inaugural Address, is to work, with help from the international community, to strengthen democracy. The United States Congress would welcome that opportunity.

King Gyanendra has made a tragic blunder. He still has time to prevent a momentary crisis from becoming a disaster for his country and perhaps for the monarchy itself.

Mr. President, this morning we have heard many excellent speeches. I commend my colleague from Vermont, Mr. Jeffords, for his statement. Yesterday I listened to Senators Feinstein, Schumer, Kennedy, Mikulski, Dayton and Stabenow on our side, and I thought their statements were very good. Both Senator Durbin of Illinois and I were at a hearing this morning and left to come over here. I think his statement was straightforward and comprehensive and compelling. I appreciate what has been said.

I have also listened to the statements of those who support this nominee, most from the other side. I would say one thing, I am glad that none of them are defending torture. I never expected they would. None of them defend what happened at Abu Ghraib. I didn't expect they would. None of them are defending the Bybee memorandum, with its narrow legalistic interpretation of the torture statute. I never thought any of them would.

None of them defend the outrageous claim that the President of the United States is above the law. I don't know how anybody could defend that position. One of the things we have learned, from the first George W., George Washington, to the current President, is that no President is above the law, not even this one. None of us are. Senators are not. Judges are not. Nobody is.

In fact, some of the people who have spoken have been explicitly critical of the Bybee memo. Unfortunately, the nominee has not joined in that criticism. Instead, he told me at his hearing that he agreed with its conclusions. We know that for at least 2 years he did not disagree with the secret policy of this administration.

Water flows downhill and so does Government policy in this administration. Somewhere in the upper reaches of this administration a process was set in motion that rolled forward until it produced scandalous results.

We may never know the full story. The administration circled the wagons. They stonewalled requests for information from both Republicans and Democrats. What little we do know, we know because the press has done a far, far, far better job of oversight than the Congress itself. We know it from international human rights organizations because they have done a far better job of oversight than Congress has. We owe it to a few internal Defense Department investigations, and of course the Freedom of Information Act litigation. Thank goodness we have the Freedom of Information Act, because Congress, this Congress especially, both bodies, has fallen down for years on their oversight responsibility. It failed, actually refused, to do oversight of an administration of their own party. It is fortunate the Freedom of Information Act is there.

Every administration, Democrat and Republican, will tell you all the things they believe they have done right. None will tell you the things they believe they have done wrong. Normally it is the job of the Congress to root that out. We have not been doing our job. Fortunately the press and others, through the Freedom of Information Act, have.

Despite repeated requests both before and during and after judge Gonzales's confirmation hearing, there is much we still do not know. We gave this nominee every possibility before, during, and after his hearing to clarify this. I even sent to him and to the Republicans on the committee, well in advance of the hearing, a description of the types of questions I would ask on this particular matter so there would be no surprises and so that he would have a chance to answer them. He didn't.

We do know that he was chairing meetings and requesting memos and checking up on those memos as various Government agencies were being tasked with eroding long-established U.S. policy on torture.

Just this week, the New York Times reported the Justice Department produced a second torture memo to address the legality of specific interrogation techniques proposed by the CIA. So much for the proponents' argument that these memoranda were research memos with little real-world impact.

That second torture memo, which the administration refused to provide to the Judiciary Committee, reportedly used the very narrow and thus permissive interpretation of the torture statute outlined in the first memorandum. The administration will not come clean from behind the stone wall it has constructed to deter accountability for its actions. Does anyone believe this memo was generated without knowledge of the White House, without its approval?

The President said he chose Judge Gonzales because of his sound judgment in shaping the administration's terrorism policies. But the glimpses we have seen of secret policy formulations and legal rationales that have come to light show that his judgements have not been sound.

Look at his role with respect to the Bybee memo. This is the memo that noted legal scholar Dean Koh of the Yale Law School called, ``perhaps the most clearly erroneous legal opinion I have ever read.'' He went on to say it is ``a stain upon our law and our national reputation.''

In remarks yesterday, Republican Senators, quite correctly in my view and the view of many others who studied it, said the Bybee memo was ``erroneous in its legal conclusions. . . .'' They call the memo's interpretation of what constitutes torture ``very, very extreme . . . certainly not a realistic or adequate definition of torture which would withstand legal analysis or legal scrutiny.''

I commend them for doing that. I commend them for saying the memorandum was ``extreme and excessive in its statement and articulation of executive power.'' I would feel far better if

the man who they are supporting for Attorney General had taken the same position, as have many of my colleagues in the Senate, on both sides of the aisle.

Even supporters of Judge Gonzales distance themselves from the Bybee memo's conclusion that the President has authority to immunize those who violate the law knowing that ``certainly is not lawful.''

These are the statements of Republican Senators, but they should not be confused with the statements of Judge Gonzales, who has refused to criticize its legalistic excuses for recalibrations of decades of law and practice.

I ask unanimous consent to have printed in the Record a number of newspaper articles and editorials that bear on this nomination, including one that appears in today's Rutledge Herald, a prize-winning newspaper in Vermont.

Madam President, I am only going to take a few moments. I have colleagues on this side of the aisle who wish to speak during the hour.

I hear so many of the statements on the other side speak of Judge Gonzales's personality, his upbringing, and his inspirational life story. If we were just voting on his personality, his upbringing, and his life story, I would vote for him with wholehearted support. However, we are not voting on the life, we are voting on the record. It is an enormous difference. Equally important, we are not voting on an Attorney General to serve only the President, we are voting on the Attorney General for the United States.

So many of the supporters of Judge Gonzales have said that they abhor the idea of torture. They say that they believe the Bybee memo was wrong. They say that these policies are wrong.

Of course they are wrong, but these are the policies that were held in place by the administration for as long as they remained secret. The Bybee memo was sought by Judge Gonzales. It was agreed to by him. He apparently still takes the position that there are circumstances where the President of the United States is above the law.

I don't want someone to serve as Attorney General who will be a good soldier for the President. I would have said the same thing, whether it was a Democratic President or Republican President. I want someone for Attorney General who will be independent, who will give the best possible advice and protect the rights of all of Americans.

I am the parent of a former Marine. My son has now fulfilled his duty for the Marines, but if he were serving, I would worry for him as I worry for all the thousands of men and women serving overseas. The torture policies of this administration did nothing to enhance the security of our Americans fighting bravely. In fact, the policies put soldiers and civilians in greater danger.

The truth is that the Bybee memo was disavowed only when the press found out about it. Unfortunately, the people at the center of the development of these policies, who could have disavowed the memo upon its publication, who could have stopped it, including Judge Gonzales, did nothing.

I see the distinguished Senator from Louisiana and the distinguished Senator from Rhode Island. I don't know which one seeks recognition, but I yield the floor.

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

Mr. President, I am disturbed that even though there are some Democrats who support Judge Gonzales, and some who oppose, I have heard some Senators on the other side of the aisle imply that those who oppose this nomination are biased against him based on his ethnic background. I resent that charge.

For somebody to say that those opposed are biased against Judge Gonzales because of his ethnicity is preposterous and deeply offensive.

We have stood here for 2 days explaining our positions. Many of us have said if we were voting on the story and on the achievements of Judge Gonzales, which are commendable, we would be voting for him. If we were voting on what he has overcome in his life and career, we would be voting for him. What we have said clearly, however, is that we are voting against him based upon his conduct as Counsel to the President. We have come to this decision based upon his record.

Let us talk about that record. Judge Gonzales has argued that the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not prohibit cruel, inhuman, or degrading treatment or punishment with ``respect to aliens overseas.'' Reaching this conclusion requires such twisted reasoning that even those who support Judge Gonzales must part company with him on this point.

I am also disturbed by his interpretation of the Geneva Conventions. Judge Gonzales did not follow the advice he received from Secretary of State Powell, the former Chairman of the Joint Chiefs of Staff, or of the State Department lawyers. He did not stand up for the military and interpret our obligations consistent with the Army Field Manual and the decades of sound practice and counsel from the Judge Advocate General's Corps.

That is why I object to this nominee.

I ask unanimous consent to have printed in the Record an article describing Judge Gonzales's interrogation policies, written by Jeffrey Smith and Dan Eggen.

Mr. President, I want to set the record straight on something that the senior Senator from Utah said yesterday regarding the President's February 2002 directive on the treatment of al-Qaida and Taliban detainees. According to Senator Hatch, ``the President [said] unequivocally that detainees are to be treated humanely.'' In fact, the President's directive said only that ``the U.S. Armed Forces'' should treat detainees humanely. The President's directive pointedly did not apply to the CIA and other nonmilitary personnel.

I asked Judge Gonzales:

Does the President's February 7, 2002, directive regarding

humane treatment of detainees apply to the CIA or any other

non-military personnel?

He replied:

No. By its terms, the February 7, 2002, directive

``reaffirm[s] the order previously issued by the Secretary of

Defense to the United States Armed Forces.''

In other words, contrary to what he have heard, and continue to hear, from Judge Gonzales's supporters, the President's oft-quoted directive regarding the humane treatment of detainees is carefully worded to permit the occasional inhumane treatment of detainees. Indeed, that is one of the legal loopholes that concerns so many of us.

Mr. President, I yield the floor and suggest the absence of a quorum.