Floor Statements

Mr. President, I want to thank Senator Gregg for his important statement.

As we all know, Charles Taylor was the brutal dictator of Liberia, responsible for numerous atrocities in West Africa. His loyalists raped, killed and hacked the limbs off of innocent civilians. To bring Mr. Taylor--and others responsible for these crimes--to justice, the United States and United Nations Security Council established an international tribunal--the Special Court for Sierra Leone.

Congress has consistently supported the Special Court by appropriating $20 million for it. The Prosecutor for the Special Court is an American, a former lawyer in the Defense Department. He moved quickly to indict Mr. Taylor for his crimes. To back up this indictment,

INTERPOL issued a Red Notice asking member states to help bring him to justice.

Today, Mr. Taylor remains beyond the reach of the court. He is in Nigeria--shielded by that government. To make matters worse, Taylor continues to work to destabilize parts of West Africa. The State Department says it will not pressure Nigeria to turn Taylor over to the court.

This is completely unacceptable. Taylor is under indictment by a UN- backed court. He continues to destabilize parts of West Africa. We know where he is. The United States needs to act and it needs to act now.

Yesterday, Senator Gregg and I--along with 5 other Senators--sent a letter to the State Department urging immediate action to get Taylor to the court. It is time for the United States to do the right thing. It is time for Taylor to come before the court.

If the Senator will yield for a question, I saw the distinguished Senator from New Jersey just enter the Chamber. I ask my friends, the senior Senators from Michigan, Nevada, Rhode Island, and Idaho, if perhaps the senior Senator from Vermont could proceed for about 10 minutes on the subject of land mines without the Senator from Michigan losing his right to reclaim the floor. In the meantime, maybe through the work that is always done with such finesse by the senior Senator from Nevada, something can be worked out.

Mr. President, as an aside, for one who has been here for 29 years, sometimes the press talks about the rancor in the Senate. This was a matter of courtesy shown by the senior Senator from Idaho, the senior Senator from Rhode Island, and the senior Senator from Michigan to the Senator from Vermont. These are the kind of things that make the Senate work. I appreciate it.

Mr. President, back in the 1980s, about 15 years ago, I flew in a helicopter from Tegucigalpa, Honduras to the border of Honduras and Nicaragua. It was at the height of the Iran-contra war. On the way I met with the contras there at their camp. And on the way back, there was a clearing in the jungle. You could see a Quonset hut with a red cross on the top. We landed there. It was a field hospital. There was a dirt floor inside, with beds, and an operating room next to it.

Inside I met a little boy, probably about 12 years old, with one leg; he had a homemade crutch. He had no place to live, and the doctors let him stay there on sort of a makeshift bed of blankets and rags in the corner.

He was a nice boy. He had no idea who I was or what I was doing there. He was just excited to see a helicopter come in. I talked with him through a translator. He had lost his leg from a landmine along one of the trails near where his family lived. They were farmers.

I asked him if the landmine was placed there by a Sandinista or a contra. He didn't have the foggiest idea. He wasn't even sure what this country, just a few miles away across the border, Nicaragua, was.

What he did know was his life was changed forever, and that he would not be able to run again, or work in the fields, or be a farmer like his father. It was a tragic story.

I came back and started work on a fund for mine victims, which through the courtesy of the Republican side is now known as the Leahy War Victims Fund, and it has had strong bipartisan support. But while that fund has helped many mine victims get artificial limbs and walk again, I soon realized that no matter how much money we spend we would never stem the loss of life from landmines that way.

Since I met that boy over a decade and a half ago, I have spoken on this floor about the dangers of landmines to innocent civilians and American soldiers so many times I have lost count. Perhaps I sound like a broken record, but I feel so passionately about this.

Years ago, I sponsored the first law anywhere in the world to stop the export of antipersonnel landmines. My distinguished friend from West Virginia and my distinguished friend from Michigan voted for it. The United States had the first law in the world stopping the export of antipersonnel landmines. That led to similar actions by other nations. In a short time, our allies took far bolder steps. Just 5 years later, a treaty banning antipersonnel mines was signed in Ottawa. I was there when it was signed. Today, over 150 nations have joined that treaty, including every NATO ally and every country in the Western Hemisphere, except two, the United States and Cuba.

It is interesting to recall the speech of former Foreign Minister Lloyd Axworthy, who laid down the challenge in Ottawa. Yet today, almost a decade later, in this hemisphere only two countries, the United States and Cuba remain the outcasts.

During the Clinton administration, I worked closely with the White House on this issue. I was disappointed that President Clinton did not join the Ottawa Treaty, even though he could have, but he pledged to work aggressively to find alternatives to landmines so the United States could join by 2006.

Until this morning, that pledge was United States policy and the Pentagon publicly embraced it.

I ask unanimous consent that a May 15, 1998, letter to me from the former National Security Advisor, Sandy Berger, which spells out that policy be printed in the Record at the end of my remarks.

The Pentagon said publicly that they would uphold the pledge of the President of the United States, but behind the scenes they worked assiduously to undermine the Clinton policy. Today, we see the result in an announcement that the White House and Pentagon carefully leaked to the press last night in an attempt to put a positive spin on what anyone who knows the issue can see is a step backward.

We see that the Bush administration has abandoned any pretext of joining other civilized nations to eliminate these outmoded, indiscriminate weapons.

Before I explain why the administration's policy is so deeply disappointing to those of us who have worked on this issue for years, I want to be clear of my respect for Secretary of State Powell, for Assistant Secretary Lincoln Bloomfield, and others in the State Department who administer our humanitarian demining programs. These programs save lives and limbs, and this administration's plan to increase funding for these programs by $20 million is constructive. It is far too little, especially for the wealthiest Nation on earth, but it is a positive step.

I also want to emphasize that, except for in Korea, the United States no longer uses the type of landmines which pose the gravest risk to innocent people, the way some nations and rebel forces do. Instead, we are helping countries clear their minefields. Just this week, the Vietnam Veterans of America Foundation, led so courageously by Bobby Muller, signed an agreement with the Vietnamese Ministry of Defense to conduct a countrywide survey of unexploded mines and other bombs, many of which were left by our soldiers, as well as by Vietnamese soldiers, and which continue to maim and kill innocent people. Once that survey is completed, we and other nations can help remove these explosives and end the deadly legacy of that war.

So the issue for the United States is not whether the U.S. is using mines that are causing civilian casualties. In fact, we have not used landmines since 1991 in the first Gulf war, and there is no evidence those mines had any effect whatsoever. In fact there is no evidence the Iraqis even knew they were there. The real issue, which the Pentagon and White House are either incapable of grasping or, more likely, want to ignore, is that as long as the United States, with by far the most powerful Armed Forces ever known in history, continues to insist on its right to use these indiscriminate weapons, other nations with armies far weaker than ours are going to insist on their right to use them also.

The victims are going to be innocent civilians and U.S. soldiers who, even today, are losing their lives and limbs from mines in Iraq.

Mr. President, over 2 years ago, the Bush administration announced it would review U.S. landmine policy. I welcomed that review. I told President Bush, the Secretary of State, and officials in the Pentagon that I wanted to find an approach with broad, bipartisan support, including from the Pentagon. Also, as much as I wanted us to be one of the overwhelming majority of nations that have joined the treaty, I knew the Bush administration was not likely to do that. I felt that working together we could move toward that goal by strengthening our own policy.

Today, over 2 years later, and after refusing to consult with me or other Members of Congress on either side, the White House announced its plans. We now see that we would have been far better off if the administration had not conducted its review in the first place. Except for a few positive aspects, the policy is a disappointing step backward.

What we see is another squandered opportunity for U.S. leadership on a crucial arms control and humanitarian issue. We see the United States saying we will continue to use landmines indefinitely.

Once again, we had the opportunity to join the civilized world in solving a global crisis, as all our NATO allies have. And once again, we have chosen unilateral arrogance over leadership and cooperation.

The administration's press office has done an impressive job portraying this policy as an important advance, but it is not.

They say they will eliminate persistent landmines by 2010. That is constructive. But in fact, except for Korea, the United States has not used these types of mines for decades.

Six years ago, the Clinton administration, including the Pentagon, pledged to ``search aggressively'' for alternatives to self-destructing anti-vehicle mine systems by 2006. The Bush administration abandons this pledge and will allow the use of these mines anywhere, indefinitely.

In 1998, the Clinton administration pledged that it would sign the Ottawa treaty banning anti-personnel mines by 2006, if suitable alternatives to these mines were fielded by then. The Bush administration abandons this pledge.

The Bush administration says it will seek a worldwide ban on the sale or export of persistent mines, but that we will keep our self-destruct mines indefinitely. Let's be honest. We tried that back in 1994, and the reason it failed was, not surprisingly, that other countries said ``if you, the world's strongest military power are unwilling to give up your landmines, why should we give up ours?''

Mr. President, I had hoped that the President would seize this opportunity to show real leadership. We can solve this problem if we set the example. It could be done so easily. Instead, the President has taken us backwards.

I will speak more about this in future weeks. I do appreciate the consideration of my colleagues in giving me this time.

I yield the floor.

Exhibit 1

The White House,

Washington, May 15, 1998.

Hon. Patrick J. Leahy,

U.S. Senate,

Washington, DC.

Dear Senator Leahy: The President has asked me to confirm

our understanding regarding the one-year statutory moratorium

on the use of anti-personnel landmines (APLs) that is due to

take effect next February. We very much appreciate your

working so closely with us to define an approach that meets

not only our solemn obligation to provide for the protection

and safety of our Armed Forces in battle, but also our mutual

goal of advancing our efforts to rid the world of APLs.

We are very gratified that you will not oppose adding

flexibility to the 1996 moratorium legislation in the form of

a Presidential waiver authority that would be attached to the

pending FY 1999 defense authorization bill when it is

considered by the Senate next week.

In this context, let me reiterate the following commitments

on the part of the Administration:

The United States will destroy by 1999 all of its non-self-

destructing APLs, except those needed for Korea.

The United States will end the use of all APLs outside

Korea by 2003, including those that self-destruct.

The United States will aggressively pursue the objective of

having APL alternatives ready for Korea by 2006, including

those that self-destruct.

The United States will search aggressively for alternatives

to our mixed anti-tank systems by (a) actively exploring the

use of APL alternatives in place of the self-destructing

anti-personnel submunitions currently used in our mixed

systems and (b) exploring the development of other

technologies and/or operational concepts that result in

alternatives that would enable us to eliminate our mixed

systems entirely.

Finally, the United States will sign the Ottawa Convention

by 2006 if we succeed in identifying and fielding suitable

alternatives to our anti-personnel landmines and mixed anti-

tank systems by then.

Again, I thank you for your leadership on this issue.

Sincerely,

Samuel R. Berger,

Assistant to the President

for National Security Affairs.

Mr. President, during the Presidents Day break in the Senate session, President Bush chose to act unilaterally to appoint William Pryor to the Eleventh Circuit Court of Appeals. Over the past few weeks, I have shared with the Senate three other divisive developments regarding judicial nominations: The Pickering recess appointment, the renomination of Claude Allen, and the theft of Democratic computer files by Republican staff. In spite of all those affronts, Senate Democrats cooperated in confirming two additional judicial nominees this year and continue to participate in hearings for judicial nominees. We have done so without the kinds of delays and obstruction that Republicans relied upon to stall more than 60 of President Clinton's judicial nominees.

Today, I report upon the President's appointment of William Pryor in what the Democratic leader has properly termed an abuse of power. It was an abuse of the limited constitutional authority of the executive to make necessary recess appointments only when the Senate is unavailable. This is unprecedented.

Actions like this show the American people that this White House will stop at nothing to try to turn the independent Federal judiciary into an arm of the Republican Party. Doing this further erodes the White House's credibility and the respect that the American people have for the courts.

This is an administration that promised to unite the American people but that has chosen time and again to act in ways that divides us, to disrespect the Senate and our representative democracy. This is an administration that squandered the goodwill and good faith that Democrats showed in the aftermath of September 11, 2001.

This is an administration that refused to acknowledge the strides we made in filling 100 judicial vacancies under Democratic Senate leadership during 17 difficult months in 2001 and 2002, while overcoming the September 11 attacks, the subsequent anthrax attacks and in spite of Republican mistreatment of scores of qualified, moderate judicial nominees of President Clinton.

This is an administration that has once again demonstrated its

unilateralism, arrogance and intention to divide the American people and the Senate with its controversial judicial nominations. With this appointment, the President is acting--as he has in so many areas over the past 3 years--unilaterally, overextending and expanding his power, with disregard for past practice and the rule of law.

The recess appointment of Mr. Pryor threatens both the independence of the judiciary and the constitutional balance of power between the legislative and executive branches. We entrust to the stewardship of lifetime judges in our independent Federal judiciary the rights that all of us are guaranteed by our Constitution and laws. That is an awesome responsibility. Accordingly, the Constitution was designed so that it would only be extended after the President and the Senate agreed on the suitability of the nomination.

The President has chosen for the second time in as many months to circumvent this constitutional design.

I have sought in good faith to work with this administration for the last 3 years in filling judicial vacancies, including so many left open by Republican obstruction of President Clinton's qualified nominees. When chairman, I made sure that President Bush's nominees were not treated the way his predecessor's had been. They were treated much better, as I had promised.

Republicans had averaged only 37 confirmations a year while vacancies rose from 65 to 110 and circuit vacancies more than doubled from 16 to 33. Under Democratic leadership, we reversed those trends and opened the system to public accountability and debate by making home-State Senators' objections to proceeding public for the first time and debating and voting on nominations. We were able to confirm 100 judges in just 17 months and virtually doubled the Republican annual average with 72 confirmations in 2002, alone.

I have urged that we work together, that we cooperate, and that the President be what he promised the American people he would be during the last campaign--a uniter and not a divider. I have offered to consult and made sure we explained privately and in the public record why this President's most extreme and controversial nominations were unacceptable. Our efforts at reconciliation continue to be rebuffed.

Both these recess appointments are troubling. The President says that he wants judges who will ``follow the law'' and complains about what he calls ``judicial activism.'' Yet, he has acted--with disregard for the constitutional balance of powers and the Senate's advice and consent authority--unilaterally to install on the Federal bench two nominees from whom the Senate withheld its consent precisely because they are seen by so many as likely to be judicial activists, who will insert their personal views in decisions and will not follow the law.

In the case of Mr. Pryor, he is among the most extreme and ideologically committed and opinionated nominees ever sent to the Senate. Mr. Pryor's nomination to a lifetime appointment on the Federal bench was opposed by every Democrat on the Senate Judiciary Committee after hearings and debate.

It was opposed on the Senate floor because he appears to have extreme--some might say, ``radical''--ideas about what the Constitution should provide with regard to federalism, criminal justice and the death penalty, violence against women, the Americans with Disabilities Act, and the Government's ability to protect the environment on behalf of the American people. He has been a crusader for the federalist revolution. He has urged that Federal laws on behalf of the disabled, the aged, women, minorities, and the environment all be limited.

His comments have revealed insensitivity to the barriers that disadvantaged persons and members of minority groups and women continue to face in the criminal justice system. He has testified before Congress in support of dropping a crucial part of the Voting Rights Act and has repeatedly described the Supreme Court and certain justices in overtly political terms. He received the lowest possible qualified rating from the American Bar Association--a partial rating of ``Not Qualified''--underscoring his unfitness for the bench.

In sum, Mr. Pryor has demonstrated that he is committed to an ideological agenda that puts corporate interests over the public's interests and that he would roll back the hard-won rights of consumers, minorities, women, and others.

Mr. Pryor's nomination was considered in committee and on the Senate floor. The Senate debated his nomination, and had enough concerns about his fitness for a lifetime appointment that two motions to end debate on his nomination failed. That is the constitutional right of the Senate.

But President Bush has decided to use the recess appointment clause of the Constitution to end-run the Senate. As far as I know, this power has never been used this way before this President. Of course, this is the first President in our Nation's history to renominate someone rejected after hearings, debate and a fair vote by the Senate Judiciary Committee. He did that twice. He has now twice overridden the Senate's withholding of its consent after hearings and debate on judicial nominees. This demonstrates contempt for the Constitution and the Senate.

The New York Times opined over the weekend about ``President Bush . . . stacking the courts with right-wing judges of dubious judicial qualifications'' and even the Washington Post editorialized that recess appointments of judges ``should never be used to mint judges who cannot be confirmed on their merits.''

The recess appointments clause of the Constitution was not intended to change the balance of power between the Senate and the President that is established as part of the fundamental set of checks and balances in our government. Indeed, the appointments clause in the Constitution requires the consent of the Senate as just such a fundamental check on the executive. This was meant to protect against the ``aggrandizement of one branch at the expense of the other.''

The clause was debated at the Constitutional Convention, and the final language--with shared power--is intended to be a check upon favoritism of the President and prevent the appointment of unfit characters.

The President's claimed power to make a unilateral appointment of a nominee, Mr. Pryor, who the Senate considered and effectively rejected, slights the Framers' deliberate and considered decision to share the appointing power equally between the President and the Senate.

This President's appointment of Mr. Pryor to the Eleventh Circuit-- after he was considered by the full Senate--seems irreconcilable with the original purpose of the appointments and recess appointment clauses in the Constitution. Perhaps that explains why the Pryor and Pickering recess appointments by this President are the first times in our centuries-long history that the recess appointment power has been so abused. No other President so acted. No other President sought such unilateral authority without balance from the Senate.

The President chose to sully the Martin Luther King Jr. weekend with his unilateral appointment of Judge Pickering. Sadly, he chose the Presidents Day congressional break unilaterally to appoint Mr. Pryor. We resumed our proceedings in the Senate this week with the traditional reading of President George Washington's farewell address. The Senate proceeds in this way every year. I urge this President and those in his administration to recall the wisdom of our first President. George Washington instructs us on the importance of not abusing the power each branch is given by the Constitution. He urges the three branches of our government to ``confine themselves within their respective constitutional spheres.''

He said more than 200 years ago words that ring true to this day:

The spirit of encroachment tends to consolidate the powers

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

the form of government, a real despotism. . . . The necessity

of reciprocal checks in the exercise of political power, by

dividing and distributing it into different depositaries, and

constituting each the guardian of the public weal against

invasions by the others, has been evinced by experiments

ancient and modern. . . . To preserve them must be as

necessary as to institute them.

The current occupant of the White House might do well to take this wisdom to heart and respect the constitutional allocations of shared authority that have protected our nation and our

rights for more than 200 years so brilliantly and effectively.

The recess appointments power was intended as a means to fill vacancies when the Senate was not available to give its consent; it was intended to ensure effective functioning of the government when the Senate adjourned for months at a time. It was never intended as an alternative means of appointment by the executive when the President chose to serve some partisan short-term goal by simply overriding the will of the Senate especially with respect to our third branch of government, the Federal judiciary.

This administration and its partisan enablers in the Senate have again demonstrated their disdain for the constitutional system of checks and balances and for shared power among the three branches of our Federal Government. By such actions, this administration shows that it seeks all power consolidated in the executive and that it wants a Judiciary that will serve its narrow ideological purposes.

Such overreaching by this administration hurts the courts and the country. President Bush and his partisans have disrespected the Senate, its constitutional role of advice and consent on lifetime appointments to the Federal courts, the Federal courts, and the representative democracy that is so important to the American people. It is indicative of the confrontational and ``by any means necessary'' attitude that underlies so many actions by this administration and that created the atmosphere on this Committee in which Republican staff felt justified in spying upon their counterparts and stealing computer files.

After 8 years in office in which more than 60 judicial nominees had been stalled from consideration by Republican partisans, President Clinton made his one and only recess appointment of a judge. Contrast that appointment with the actions of the current President.

President Clinton acted to bring diversity to the Fourth Circuit, the last Federal circuit court not to have had an African-American member. Judge Roger Gregory was subsequently approved by the Senate for a lifetime appointment under Democratic Senate leadership in the summer of 2001. This was made possible by the steadfast support of Senator John Warner, the senior Senator from Virginia, and I have commended my friend for his actions in this regard. When Judge Gregory's nomination was finally considered by the Senate it passed by consensus and with only one negative vote. Senator Lott explained his vote as a protest vote against President Clinton's use of the recess appointment power. How ironic then that Judge Pickering now serves based on President Bush's abuse of that power.

Judge Gregory was one of scores of highly qualified judicial nominations stalled under Republican Senate leadership. Indeed, Judge Gregory and so many others were prevented from having a hearing, from ever being considered by the Judiciary Committee and from ever being considered by the Senate. Sadly, others, such as the nominations of Bonnie Campbell, Christine Arguello, Allen Snyder, Kent Markus, Kathleen McCree Lewis, Jorge Rangel, Carlos Moreno, and so many more, have not been reinstated and considered. But President Clinton did not abuse his recess appointment power. Instead, his appointment of Judge Gregory was in keeping with traditional practices and his use of that power with respect to judicial appointments was limited to that one occasion.

By contrast, the current President has made two circuit recess appointments in 2 months and his White House threatens that more are on the way. These appointments are from among the most controversial and contentious nominations this administration has sent the Senate. After reviewing their records and debating at length, the Senate withheld its consent. The reasons for opposing these nominations were discussed in hearings and open debate during which the case was made that these nominees were among the handful that a significant number of Senators determined had not demonstrated their fairness and impartiality to serve as judges.

Contrast Roger Gregory's recess appointment, which fit squarely in the tradition of President's exercising such authority in order to expand civil rights and to bring diversity to the courts, with that of Mr. Pryor. Four of the five first African American appellate judges were recess-appointed to their first Article III position, including Judge William Hastie in 1949, Judge Thurgood Marshall in 1961, Judge Spottswood Robinson in 1961, and Judge Leon Higginbotham in 1964.

The recent appointments of Judge Pickering and Mr. Pryor stand in sharp contrast to these outstanding nominees and the public purposes served by their appointments.

The nominations of Judge Pickering and Mr. Pryor were opposed by individuals, organizations and editorial pages across the nation. Organizations and individuals concerned about justice before the Federal courts, such as Log Cabin Republicans, the Leadership Conference on Civil Rights, and many others opposed the Pryor nomination. The opposition extended to include organizations that rarely take positions on nominations but felt so strongly about Mr. Pryor that they were compelled to write, such as the National Senior Citizens Law Center, Anti-Defamation League, and Sierra Club. Rather than bring people together and move the country forward, this President's recess appointment is another example of unnecessarily divisive action.

Further, the legality of this use of the recess appointments power, without precedent and during such a short Senate break, is itself now a source of division and dispute. Recent Attorneys General have all opined that a recess of 10 days or less does not justify the President's use of the recess appointments power and would be considered unconstitutional. Starting in 1921, Attorney General Daugherty advised the President that he could make recess appointments during a mid-session adjournment of approximately four weeks but that 2 days was not sufficient ``nor do I think an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution.'' More recently, a memo from the Reagan administration Justice Department concluded: ``Under no circumstances should the President attempt to make recess appointment during intrasession recess of less than 10 days.'' This year, a Federalist Society paper noted the dubious constitutionality of appointments during short intrasession breaks.

We will not resolve the question of legality of these recess appointments here today, but we can all anticipate challenges to rulings in which Mr. Pryor participates. Thus, we can expect this audacious action by the administration will serve to spawn litigation and uncertainty for months and years to come.

I thank the Democratic leader for the statements he made this week in connection with the abuse of the recess appointment power by this President. I remind the Senate that a few years ago when President Clinton used his recess appointment power with regard to a short-term executive appointment of James Hormel to serve as ambassador to Luxembourg, Senator Inhofe responded by saying that President Clinton had ``shown contempt for Congress and the Constitution'' and declared that he would place ``holds on every single Presidential nomination.'' Republicans continued to block nominations until President Clinton agreed to make recess appointments only after Congress was notified in advance. On November 10, 1999, 17 Republican Senators sent a letter to President Clinton telling him that if he violated the agreement, they would ``put holds for the remaining of the term of your Presidency on all of the judicial nominees.''

In November 1999, President Clinton sent a list of 13 positions to the Senate that he planned to fill through recess appointments. In response, Senator Inhofe denounced 5 of the 13 civilian nominees with a threat that if they went forward, he would personally place a hold on every one of President Clinton's judicial nominees for the remainder of his term. That led to more delays and to the need for a floor vote on a motion to proceed to consider the next judicial nomination, in order to override Republican objections.

When President Clinton appointed Judge Gregory at the end of 2000, Senator Inhofe called it ``outrageously inappropriate for any President to fill a federal judgeship through a recess appointment in a deliberate way to bypass the Senate.'' When the Gregory

nomination was confirmed with near unanimity under Senate Democratic leadership in 2001, Senator Lott's spokesperson indicated that Senator Lott's solitary opposition was to underscore his position that ``any appointment of federal judges during a recess should be opposed.''

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

Mr. President, I ask my friend from Idaho, did he say the Campbell-Leahy concealed-carry bill is the next in line?

Then I will stay here.

Mr. President, I thank the managing Senator.

I listened to what the distinguished Senator from Ohio said about Steve Young. I thought it was eloquent, well put, and I wish to join in those comments. I consider myself very fortunate to have known Steve. I thought how important it was that we change the

short title of this amendment to ``The Steve Young Law Enforcement Officers Safety Act.'' I remember even talking with Steve a number of times after he was ill and could no longer travel. Through all of that time, he, in typical fashion, spoke about others and not about himself.

I began my public career in law enforcement. To this day, the only thing in my personal Senate office that has my name on it is the plaque the police gave me when I left that career in law enforcement to become a Senator. It is a plaque on the door to my office with my name and above it is the badge I carried as a law enforcement official.

One thing I knew during my time in law enforcement, the law enforcement officers are never off duty. They are dedicated public servants, trained to uphold the law and keep the peace. To enable law enforcement officers nationwide to be prepared to answer a call to duty no matter where, when, or in what form it comes, I am proud to join Senators Campbell, Hatch, and Harry Reid to offer the Law Enforcement Officers Safety Act, S. 253, as it was reported out of the Senate Judiciary Committee, as an amendment to the Protection of Lawful Commerce in Arms Act. People understand our amendment would permit off- duty and retired law enforcement officers to carry a firearm provided they have demonstrated their ability, provided they follow some very strict requirements, and be prepared to assist in dangerous situations.

This passed the Judiciary Committee by a vote of 18 to 1. It had 68 cosponsors, both Republicans and Democrats, and was strongly supported by the Fraternal Order of Police, the National Association of Police Organizations, the Federal Law Enforcement Officers Association, the International Brotherhood of Police Officers, and the Law Enforcement Alliance of America.

I worked with LT Steve Young on this. It was one of the things he and I talked about before he died. He was dedicated to it. He knew the importance of having law enforcement officers across the Nation armed and prepared, whenever and wherever a risk to our public safety arose. The current national president, MAJ Chuck Canterbury, worked with me and others to make this legislation law.

We know where community policing and the outstanding work of so many law enforcement officers have helped a great deal in our crime control efforts. But during the last few years, the downward trend in violent crime ended and violent crime rates have turned upward.

We also know that more than 740,000 sworn law enforcement officers are currently serving in the United States. Since the first recorded police death in 1792, there have been more than 17,000 law enforcement officers killed in the line of duty--17,000. In the last decade, over 1,700 officers died in the line of duty--170 every year.

I think of a very sad funeral I went to in Vermont last summer. The trooper's family was left behind--young children, his widow. Roughly 5 percent of officers who die are killed when taking law enforcement action in an off-duty capacity, and more than 62,000 law enforcement officers are assaulted annually.

Convicted criminals often have long and exacting memories. I still have people come up to me and tell me they remember that I put them in prison. This happens to a lot of law enforcement officials. That law enforcement officer, the one who arrested the person who went to prison, is a target in uniform and out, active, retired, off-duty or on-duty.

So what we tried to do by bringing together Republicans and Democrats, Liberals, moderates, conservatives, is to put together an amendment designed to establish national measures of uniformity and consistency to permit trained and certified--and I underline that certified--on- and off-duty law enforcement officers to carry concealed firearms in situations so they may respond to crimes immediately across State and other jurisdictional lines as well as to protect themselves and their families from vindictive criminals.

Mr. President, I thank my friend from Idaho for yielding time. I think this is an important matter. I yield the floor.

Mr. President, I thank the distinguished Senator from Kansas, the Presiding Officer. And I thank my friend from New Hampshire for his usual courtesy in allowing me to have the floor. I will talk about the same issue.

I am really disappointed there seems to be politics being played in this medical malpractice insurance debate. I feel a little bit like Claude Rains in ``Casablanca.'' I feel like saying: I am shocked-- shocked--in an election year we may find politics being played on what we all acknowledge is a serious matter.

What we have before us is a one-size-fits-all bill. It is a one-size- fits-all bill for a problem that varies greatly from State to State. This bill would actually encroach on the rights of every State--my State of Vermont, the distinguished Presiding Officer's State of Kansas, the State of New Hampshire, all others. It would yank away from our States legal rights and legal responsibilities they now have. And if history is any kind of a predictor, they would take those rights away forever. I think we have to show great care in the Senate when we want to so trample the rights of our individual States.

The American public assumes the 100 Members of the U.S. Senate--if they are going to do something to drastically change the lives of people in all 50 States, if they are going to drastically step in and set aside the legislatures of the 50 States--would do it only after careful consideration. But instead we have short-circuited our own procedure. Usually, when we have a bill, as everybody knows from civics 101, it is introduced, it is sent to the appropriate committees, hearings are held, debate is held in the committees,

amendments are voted on, and then it is sent to the floor--but people have had a chance, both for and against the bill, to come in and testify.

Certainly, the Governors of the various States would have a chance to come in and say either we want you to just trample our rights and trample our legislature, trample our own authority or we do not. In this case, that did not happen. In this case, the bill was just written up in a couple lobbying shops down on K Street and brought up here for people willing to introduce it at the request of those lobbyists. And instead of letting States find solutions that are best for their citizens, the Republican majority prefers this attempt to tally points on some election year political scoreboard for what are powerful special interests, but they are going to do it at the public's expense.

Instead of looking at the big picture, the overly broad antitrust immunity that the insurance companies get, or the fact that a lot of insurance companies made a lot of poor calls in the stock market and lost a lot of money and are now saying, well, the doctors can pay higher premiums to pay it back--instead of looking at ways to reduce medical errors so there would be less suits--what they have said is that we have to help these big insurance companies--not help the individual States, not help the people involved. We will help the insurance companies.

No matter they are unwilling to clamp down and ask for higher medical standards, no matter they have lost billions playing the roulette wheels in the stock market, no matter they do not want to debate, it is an election year and their lobbyists came up and said we really want this bill, so here it is.

Here is a bill that would take a chain saw to the legal rights of the American people and to the prerogatives of each of the 50 States that we take an oath to represent in the Senate. It has been tried before. It did not work. This time the bill is limited to obstetrical and gynecological care. Actually, it is not just making sure the insurance companies are helped out. But what the majority says and what the lobbyists say is they want to limit the legal rights of the most vulnerable patients: mothers and infants. It is unfortunate because we do have a health care system that is in crisis. We hear that so often that the force of it tends to diminish, but that truth is one we have to confront. The crisis is one that has to be tackled and solved.

Dramatically rising medical malpractice insurance rates are forcing some doctors to abandon their practices or to cross State lines where it might cost less. So many times, of course, these insurance rates have gone up even though there have been no cases that would indicate why they have.

Patients who need care in high-risk specialties, such as obstetrics, and patients in areas that are already underserved, such as many rural communities in my State and the Presiding Officer's State, are too often left without adequate care.

What I find amazing is that here we are, the richest and most powerful Nation on Earth, and instead of simply being able to do what most Democratic nations do--that we would assure access to quality health care for all our citizens--we are saying: No, we will allow our doctors and our providers to be driven from their calling by the manipulations of some of the insurance companies.

That is why I was hoping we would have a real debate, we would have real hearings, to find out what is happening, that we would find out what happens when you give antitrust immunity to the insurance companies to set rates however they might want.

Different States, though, have different experiences with medical malpractice insurance. Many of these States are not seeing rates skyrocket, but the State's insurance remains largely a State-regulated industry. Are we going to say that even for those States that have much lower insurance rates, we are going to say, tough, no matter what you have been doing, no matter what you did to make things work right, tough, because we are going to throw that all out. We are just going to wipe you off the books. We are going to wipe off your State control because we, the 100 Members of the Senate, understand it so much better than you possibly could. We know so much better than your 50 Governors, your 50 legislatures, and we know it so well we are able to do this without any hearings, without any discussions, without any work from the outside?

We are able to do it because we are U.S. Senators. And we know that what was handed to us by the lobbyists when they drafted this bill must be right because, after all, they come to our fundraisers.

I don't think it should be that way. I don't think that my own State of Vermont should be set aside when our Governor and our legislature are working to try to find the best solution for our small State.

I think of the one time we did have a hearing on this in the Senate Judiciary Committee--not this bill but a predecessor bill--when Linda McDougall came here. It was pretty tragic. She told us that she had had a double mastectomy because they made a mistake. She wasn't supposed to have had any mastectomy, but somebody read the papers wrong and that is what happened.

If the Senate is able to pass this bill and get it signed into law, she would still be allowed to recover, for what was gross negligence, a total of $250,000. That is about what Senators make in around a year and a half. Which do you think she would rather have? Would she rather have her body back intact or the $250,000? Please.

Arbitrarily limiting injured patients' remedies under the law without addressing systemwide medical errors that result in patient harm and death is a recipe for failure. We should be asking what were the things that went wrong; how did these things happen that such a terrible mistake was made?

We are fortunate in this Nation to have many highly qualified medical professionals. I think in my own little State of Vermont how fortunate we are to have extremely good physicians. Unfortunately, sometimes even good doctors make errors. If there is no pressure on the insurance companies, no pressure on the medical societies to keep the standards up, why should they go up? If the Senate, in its infinite wisdom, can take a lobbyist bill and just pass it and stop them from having to worry, why should they worry?

We must do all we can to support the men and women who commit their professional lives to caring for others, but we must also ensure that patients have access to adequate remedies if they receive inadequate care.

Let's understand, notwithstanding what the insurance companies' lobbyists tell us, high malpractice insurance premiums are not the direct result of malpractice lawsuit verdicts. They are the result of investment decisions by the insurance companies and business models geared toward ever increasing profits, as well as the cyclical hardening of the liability insurance market. In cases where insurers made a bad investment and experienced the same disappointment from Wall Street that many other Americans have, it should not be able to recoup its losses from the doctors it ensures. The insurance company should bear the burden of its own business model, just as every other business in this country ought to do.

A nationwide arbitrary capping--with no hearings--of awards available to victims, as the Republican majority has proposed, should not be the first and only solution turned to in a tough medical malpractice insurance market.

I might ask my friends, does anybody think if we pass this bill, if we override the legislatures of Texas or New Hampshire, Ohio, Vermont, or anywhere else, if we override all those legislatures and pass what the lobbyists and the fundraisers have asked us to pass here--this bill, with no hearings, no committee work, just came from the pens of K Street, I suppose--does anybody think if we pass this pig in a poke that these medical malpractice rates are going to come down? Come on. I have a bridge in Brooklyn to sell you if you believe that.

We can pass this. We can help the insurance companies out of their bad investments. We can make sure that people who have been severely injured through medical malpractice are unable to recover for it. We can do all those things. But I guarantee you, the rates will not come down. We have seen enough other times when we passed special interest legislation supposedly

to help consumers and it has helped businesses. It has not helped the consumers.

What we ought to be doing is conducting thoughtful and collaborative consideration in committee that might achieve a sensible solution that is fair to patients, that supports our medical professionals and their ability to practice. I suggest one thing we might do is take away the blanket exemption from Federal antitrust laws that the insurance industry has. Insurers have for years had this novel exemption that nobody else has enjoyed. The McCarran-Ferguson Act permits insurance companies to operate without being subject to most of the Federal antitrust laws. Do you think our Nation's physicians, our doctors and their patients, have benefited by allowing the insurance companies to operate without being subject to most of our antitrust laws? Of course, they have not. They have not used this exemption from antitrust laws to benefit the patients. They have not used it to benefit the doctors they insure. They have used it to benefit themselves.

With this antitrust exemption, they can collude to set rates, resulting in higher premiums, certainly higher than real competition would achieve. And because of the exemption, law enforcement officials can't even investigate the collusion.

If we want to do something, let's get rid of the antitrust exemption that let's them set doctors' premiums anywhere they want. Let's get rid of the antitrust exemption that allows them to recoup their losses in the stock market--not losses for malpractice cases--by just charging ever higher premiums.

More than a year ago, I introduced the Medical Malpractice Insurance Antitrust Act, S. 352. Senators Reid, Kennedy, Durbin, Edwards, Rockefeller, Feingold, Boxer, and Corzine cosponsored the legislation. It would modify McCarran-Ferguson with respect to medical malpractice insurance and then only for the most pernicious antitrust offenses: price fixing, bid rigging, and market allocation. These are the anticompetitive things that affect premiums.

I can't imagine how anybody could object to a prohibition on insurance carriers fixing prices or dividing territories. After all, all the other industries in our Nation have to abide by these laws or they pay the consequences. So we will find out who really carries sway here. Is it the insurance companies and their lobbyists or is there some indication that the American people may still have a voice in the Senate?

Let's find out what happens when we bring up an amendment to remove the antitrust exemption these insurance companies now have. This legislation languished for a long time. We actually had hearings on this. But the one that is written downtown comes straight to the floor.

If we are really serious about controlling rising medical malpractice insurance premiums, we have to limit the broad exemption to Federal antitrust law and promote real competition in the insurance industry, and work at reducing medical errors across the health care system. This partisan bill doesn't do that.

This partisan bill is designed to be a talking point for fundraisers. It is not designed to help doctors in rural, underserved areas to be able to pay their medical malpractice insurance. It doesn't help the women and children in this country who need these medical specialties. It may help insurance companies and fundraisers, but it doesn't help anybody. If we are going to pass something, let's pass something real.

I see my good friend from Texas and my friend from Ohio on the floor. When I started speaking, there was nobody else seeking recognition. My good friend, Senator Gregg, was kind enough to yield when I came here. I will be speaking more on this, but I will yield to whichever Senator wants the floor.

Mr. President, I rise today to bring to the Senate's attention a speech given by Ambassador Thomas Pickering in which he addressed some important issues concerning the Foreign Service.

I had the privilege of hearing this speech during an event at the Smithsonian last year, and I know of no one better qualified to talk about the Foreign Service than Ambassador Pickering. In over 41 years in the Foreign Service, Thomas Pickering served as ambassador to a dizzying number of important countries and international organizations, including Russia, India, Israel, Nigeria, and the United Nations. He also happens to speak 5 foreign languages.

In his speech, Ambassador Pickering warns of the increasing politicization of the Foreign Service. He points out that after disastrous experiences in the Civil War and Spanish-American War, the United States military professionalized its officer corps. Today, with the rise of international terrorism and the proliferation of other complex international problems, we should be thinking along the same lines.

However, we seem to be going in the wrong direction. Increasingly, individuals who have done little more than donate to a political campaign are being placed into key positions within the State Department. Ambassador Pickering appropriately points out that certain political appointees have and will continue to play an important role in pursuing U.S. diplomatic efforts overseas. Bringing individuals like Howard Baker and Felix Rohatyn, who possess unique skills, to the State Department is essential.

But the world is becoming more interconnected and more dangerous. International crises no longer confine themselves to remote corners of the world. For example, the outbreak of a deadly disease in Africa is only a plane ride away from the United States. We need seasoned, talented individuals capable of effectively advancing U.S. interests in key positions in Washington and abroad--not individuals whose primary talent is digging into their pockets to donate to a political campaign.

I urge all Senators to heed Ambassador Pickering's address and ask unanimous consent that the entire speech be printed in the Record.

Mr. President, I rise to speak about a very troubling case of rendition and alleged torture that became public last fall. This is the case of Maher Arar, a Canadian and Syrian citizen, who was deported from the United States to Syria last year, who was held and interrogated for months by the Syrians at the Bush administration's request, and who claims to have suffered torture while in custody there.

Mr. Arar was stopped by immigration officers at John F. Kennedy International Airport in September 2002 as he attempted to change planes on his way home to Canada from Tunisia. He claims that he was interrogated by an FBI agent and a New York City police officer, and that he was denied access to a lawyer. He further claims that he repeatedly told U.S. officials that he feared he would be tortured if deported to Syria. After being held for nearly two weeks in a federal detention center in New York, Mr. Arar was transferred by U.S. authorities to Syria. Arar claims that he was physically tortured during the first two weeks of his detention in Syria, and that he was subjected to severe psychological abuse over the following ten months, including being held in a grave-like cell and being forced to undergo interrogation while hearing the screams of other prisoners.

Syria has a well-documented history of state-sponsored torture. In fact, President Bush stated on November 7, 2003, that Syria has left ``a legacy of torture, oppression, misery, and ruin'' to its people. Stories like Mr. Arar's are appalling and, if true, seriously

damage our credibility as a responsible member of the international community.

When unrelated allegations of rendition and possible breaches of the Convention Against Torture (``Torture Convention'') surfaced in the summer of 2003, I wrote to administration officials asking for guarantees that the United States is complying with its obligations under this Convention. I received a response from the General Counsel of the Department of Defense, William J. Haynes. His letter contained a welcome commitment by the administration that it is the policy of the United States to comply with all of its legal obligations under the Torture Convention. I wrote to Mr. Haynes again for clarification on a number of points, such as how the administration reconciled this statement of policy with reported acts of rendition and accusations of the use of interrogation techniques rising to or near the level of torture. After 2 months with no response, another letter, this one not from Haynes himself but from a subordinate, was delivered late at night on the eve of Mr. Haynes' November 19, 2003 confirmation hearing for a seat on the Fourth Circuit Court of Appeals. That letter was totally unresponsive to my questions.

Because Mr. Arar claims that he was interrogated by an FBI agent, I wrote to FBI Director Mueller on November 17, 2003 for more information on the case. Later that week, when press accounts indicated that the deportation of Mr. Arar was approved by the Department of Justice (``DOJ''), I wrote to Attorney General Ashcroft to ask a number of additional questions. Neither of these letters has been answered.

Administration officials claim that the CIA received assurances from Syria that it would not torture Mr. Arar, and yet, spokesmen for DOJ have not explained why they believed the Syrian assurances to be credible. Nor have they explained inconsistencies in statements coming from officials at different agencies. Although the administration has officially welcomed statements by the Syrian government that Mr. Arar was not tortured, other unnamed officials have been quoted in the press as saying that, while in captivity in Syria, Mr. Arar confessed under torture that he had gone to Afghanistan for terrorist training. I have asked DOJ to address that shocking contradiction and also to explain whether the United States has investigated Syria's alleged non- compliance with any assurances it provided to the U.S. government.

Whether or not Mr. Arar had ties to terrorist organizations, as is alleged by U.S. officials, or whether his confession was a false one produced by coercion, as he claims, he was subject to the legal protections provided by the Torture Convention, which the United States has ratified.

Recently, the Canadian government announced a full inquiry into the deportation of Mr. Arar to Syria and his alleged torture there. This inquiry will also examine the role played by Canadian officials in the case to determine whether the Canadian government was complicit in the rendition of Mr. Arar. And just weeks ago, a non-profit organization, the Center for Constitutional Rights, filed a constitutional and human rights case on behalf of Mr. Arar with the U.S. District Court for the Eastern District of New York challenging the decision by federal officials to deport him to Syria. As the Washington Post editorialized on February 2, 2004, ``The government should be obliged to spell out how this decision came to be made and why.''

I urge my colleagues to follow this Federal court case the Canadian inquiry closely. If the allegations by Mr. Arar are true, then our government has much to answer for. The case has already damaged our standing with foreign governments, many of which we have criticized in the past for relying on torture in interrogations. If the U.S. is ``subcontracting'' interrogation of terrorism suspects to nations that bend the rules on torture, it undermines our reputation as a Nation of laws, it hurts our credibility in seeking to uphold human rights, and it invites others to use the same tactics.

I ask unanimous consent to print the letters I mentioned and the Washington Post editorial in the Record.

Mr. President, I am pleased to recognize the long and distinguished career of Mr. Larry Myott, one of our Nation's most respected maple syrup specialists and a longtime friend. After nearly three decades with the University of Vermont Extension Service, Larry retired last week. Known by many as ``Mr. Maple,'' Larry has played an integral role in growing the Vermont maple industry into a $220 million a year industry. His educational work with Vermont farmers and his maple syrup promotion efforts have played a key role in expanding markets for producers, allowing more producers to make a living in the maple industry. While Vermont is the largest producer of maple syrup in the United States, Larry's work has transcended the State of Vermont. He has traveled throughout the United State and into Canada to assist maple producers and promote Vermont's maple syrup.

I offer my gratitude for Larry's friendship and his great work on behalf of the State of Vermont's maple industry. I ask that an article on Larry's career be printed in the Record.

[From the Associated Press]

``Mr. Maple'' Retires From University of Vermont Extension Service

(By Lisa Rathke)

Montpelier, VT.--Larry Myott just got an e-mail from Taiwan

asking him when Vermonters ``squeeze'' sap from their trees.

The inquirer wanted to visit Vermont during the height of

the maple season.

Myott, the maple specialist for the University of Vermont

Extension Service gets letters from school children, from

maple syrup buyers and from producers all over the world.

They ask how to store maple syrup, if it's pure and what to

do about crystals that form in the syrup.

``I'm often called `Mister Maple,' '' says Myott, 59, who

will retire in January after 28 years with the Extension

Service. Gov. James Douglas and others will pay tribute to

the maple man at a dinner Saturday.

Myott has educated and assisted maple producers across

Vermont and promoted Vermont's maple products throughout the

world.

He travels to Minnesota, Nova Scotia and Virginia to learn

what's new, share his expertise and spread the word about

Vermont's products.

``Larry has a love for the maple industry that is hard to

surpass,'' says Jacques Couture, president of the Vermont

Maple Sugarmakers Association, who was making maple candy at

his farm in Westfield Wednesday. ``He's a real promoter of

maple syrup, and he's done it actually by promoting maple

syrup to helping producers on the educational side.

``It's been a life pursuit for him to see the maple

industry by the best it can be.''

Myott became the maple specialist in 1988, after serving

as Chittenden County Extension agent, and working with

vegetable growers and dairy farmers.

And the maple industry today doesn't look anything like it

did then.

``Very seldom do you see buckets in the woods any more. You

don't see horses anymore,'' he says from his Ferrisburgh

home, where he is recovering from a stroke earlier this

month.

Sugaring has grown from a side business for dairy farmers

to a year-round profitable operation for large producers, he

says.

In 1988 the average producer had 1,000 taps and generated

250 gallons of syrup a year. Ten years later, the average

size grew to twice that.

Now a large-scale sugarer might produce as much as 40,000

to 50,000 gallons a year, he says.

New technology such as a system that uses a vacuum to pull

sap out of trees; reverse osmosis, which removes water from

sap without heat by using a high pressure filter system; and

super-efficient evaporators that boil sap with less heat,

have made sugaring far more efficient.

Producers have expanded to meet the demand, and prices are

now high enough for them to make a living, he says.

``Sugarmakers are able to make a living in the maple

business today,'' he says.

The syrup is also better than it used to be. ``The quality

has changed tremendously,'' he says.

And efforts by the state to promote the Vermont image and

products and draw tourists have increased sales of maple

products.

Vermont sugarmakers made 430,000 gallons of syrup last

year, bringing in an estimated $18 million to $20 million,

Myott says. According to the Vermont Agency of Agriculture,

the entire maple industry generates over $200 million a year.

The annual Maple Festival, a local fair started in 1937 in

St. Albans, now draws as many as 50,000 people from around

the world, Myott says.

Vermont, the largest producer of maple syrup, is one of

only a few states to have a maple specialist. But Myott's

reputation stretches far beyond the Green Mountains.

``Because he's articulate, because he writes a lot, because

he'll take telephone calls from anyone at anytime. That

reputation spans not only Vermont and the region but also

internationally,'' says Gary Deziel, Northwest regional chair

of the UVM Extension Service.

Although he's retiring Jan. 30, Myott says he will remain

involved in the maple industry. He will continue to write

about maple for Farming Magazine, Maple Views, Country Folks

Magazine and Country Magazine. And he will always take

questions from Taiwan.

Mr. President, ``We're just everyday people,'' said Linda Raymond of herself and her husband, Mike, of Woburn, MA. ``But we stopped a landfill from expanding and raised environmental awareness. Any community can do what we did.''

The Raymonds live in a blue-collar suburb of Boston where they both work in the public school system. Three years ago, while walking on a wooded trail in their neighborhood, they discovered that the city's landfill, which had been dormant for 15 years, was bustling with truck traffic. They had cause for alarm. Woburn is the setting of the events that were described in the book, ``A Civil Action.'' After rates of leukemia shot upward, local industries were sued in the 1980s for polluting the area water. The Raymonds, who had not previously been involved in environmental activism, sprang into action, determined to discover what was being planned for the landfill and how this would impact the community's public health.

The Raymonds' story was recounted in the January 25, 2004, issue of Parade magazine. ``When Linda Raymond contacted town officials to find out what was going on, she hit a stone wall. `I couldn't get a straight answer from anyone,' she says. `It was very frustrating.''' The article describes what the Raymonds did next: ``To get answers--and action--the Raymonds turned to a powerful set of tools: Federal and State Freedom of Information (FOI) laws.''

With the information the Raymonds collected under Massachusetts State FOI laws, they educated the community and held public officials accountable. Their actions ultimately led to the city shelving plans to expand the size of the landfill by over a million tons of waste--plans that had been developed without public knowledge or debate, and which had not been evaluated for environmental or health impacts.

The Raymonds' triumph highlights the power of Government sunshine laws. It also demonstrates one of the most common uses of such laws by citizens and local community groups--that is, reliance on FOI laws to ensure that schools, neighborhoods and local industries are safe and secure. Our FOI laws are in danger, however, especially in the post-9/ 11 era. As noted by Parade, ``Some journalists and civil liberties defenders believe that fences have gone up around FOI laws in the aftermath of 9/11. `Freedom of Information is under threat,' says Woburn Daily Times Chronicle columnist Marie Coady. `Across the country, it's becoming harder to access documents.'''

One of the most significant threats to American citizens' right to know about health and safety issues was enacted by Congress in 2002 in the form of a broad exemption to the Federal sunshine law, the Freedom of Information Act, FOIA. The Homeland Security Act of 2002, HSA, contained a subtitle purportedly designed to protect ``critical infrastructure information.'' That broadly defined term applies to information regarding a variety of facilities--such as privately operated power plants, bridges, dams, ports, or chemical plants--that might be targeted for a terrorist attack. In exchange for the cooperation of private companies in sharing information with the government regarding vulnerabilities in the Nation's critical infrastructure, those companies would not have to share certain information with the public.

Encouraging cooperation between the private sector and the Government to keep our critical infrastructure systems safe from terrorist attacks is a goal we all support. Unfortunately, rather than increasing security by encouraging private sector disclosure to the Government, the law guts FOIA at the expense of our national security and public health.

The HSA created a new FOIA exemption for ``critical infrastructure information.'' In HSA negotiations, House Republicans and the administration promoted legislative language that they described as necessary to encourage the owners of such facilities to identify vulnerabilities in their operations and share that information with the Department of Homeland Security, DHS. The stated goal was to ensure that steps could be taken to ensure the facilities' protection and proper functioning.

In fact, such descriptions of the legislation were disingenuous. These provisions, which were eventually enacted in the HSA, shield from FOIA almost any voluntarily submitted document stamped by the facility owner as ``critical infrastructure.'' This is true no matter how tangential the content of that document may be to the actual security of a facility. The law effectively allows companies to hide information about public health and safety from American citizens simply by submitting it to DHS. The enacted provisions were called ``deeply flawed'' by Mark Tapscott of the Heritage Foundation. He argued that the ``loophole'' created by the law ``could be manipulated by clever corporate and government operators to hide endless varieties of potentially embarrassing and/or criminal information from public view.''

In addition, under the HSA, disclosure by private facilities to DHS neither obligates the private company to address the vulnerability, nor requires DHS to fix the problem. For example, in the case of a chemical spill, the law bars the Government from disclosing information without the written consent of the company that caused the pollution. As the Washington Post editorialized on February 10, 2003, ``A company might preempt environmental regulators by `voluntarily' divulging incriminating material, thereby making it unavailable to anyone else.''

Last March, I introduced a bill to repeal this dangerously broad FOIA exemption and to replace it with a balanced measure that will protect our Nation's critical infrastructure without obliterating public oversight. The Restoration of Freedom of Information Act--Restore FOIA--would protect legitimate records pertaining to critical infrastructure safety, but would remove the free pass given by the HSA to industry for any information that a facility chooses to label ``critical infrastructure.''

Perhaps most important to people like the Raymonds, who relied on State

FOI laws to obtain information on the Woburn landfill, the Restore FOIA bill also allows local authorities to apply their own sunshine laws. Unlike the provisions of the HSA, the Restore FOIA bill does not preempt any State or local disclosure laws for information obtained outside the Department of Homeland Security. Likewise, it does not restrict the use of such information by State agencies.

By enacting Restore FOIA, we can protect the Nation's critical infrastructure without cutting the public out of the loop. James Madison said, ``A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.'' I urge my colleagues to support Restore FOIA so that this basic and fundamental principle is upheld.

I ask unanimous consent that the Parade article describing the Rayburns fight for open and accountable Government be printed in the Record.

Mr. President, today, we are considering the nomination of Mark filip to the U.S. District Court for the Northern District of Illinois. The vote today on Mr. Filip is the second vote on a judicial nominee this year, and demonstrates the Democrats'

remarkable cooperation on judicial nominations despite years of intensified Republican partisanship and unilateralism.

Over the past 2 weeks, I have shared with the Senate several disappointing developments regarding judicial nominations: The Pickering recess appointment, the renomination of Claude Allen, and the theft of Democratic offices' computer files by Republican staff. In spite of all those affronts, Senate Democrats cooperated to confirm a nominee last week and are cooperating to confirm another district court nominee today. We do so without the kinds of delays and obstruction that Republicans used with President Clinton's judicial nominees.

Last week, I discussed the recess appointment of Judge Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit, which was President Bush's most cynical and divisive appointment to date. That appointment is without the consent of the United States Senate and is a particular affront to the many individuals and membership organizations representing African-Americans in the Fifth Circuit who have strongly opposed this nomination. Never before had a judicial nomination rejected by the Judiciary Committee after a vote been resubmitted to the Senate, but this President took that unprecedented step last year. Never before has a judicial nomination debated at such length by the Senate, and to which the Senate has withheld its consent, been the subject of a presidential appointment to the Federal bench. The Pickering recess appointment is another dangerous step down the Republican's chosen path to erode judicial independence for the sake of partisanship and their ideological court-packing efforts.

The second disappointing development I spoke about last week was the renomination of Claude Allen as a nominee to the fourth Circuit. Two weeks ago, the President sent the nomination of Claude Allen back to the Senate. From the time this nomination was originally made to the time it was returned to the President last year, the Maryland Senators have made their position crystal clear. This Fourth Circuit vacancy is a Maryland seat and ought to be filled by an experienced, qualified Marylander. Over the Senate recess, the White House had ample time to find such a nominee. This refusal to compromise is just another example of the White House engaging in partisan politics to the detriment of an independent judiciary

Third, last week, I also mentioned with disappointment the ongoing fallout from the cyber theft of confidential memoranda from Democratic Senate staff. This invasion was perpetrated by Republican employees both on and off the committee. As revealed by the chairman, computer security was compromised and, simply put, members of the Republican staff took things that did not belong to them and passed them around and to people outside of the Senate. This is no small mistake. It is a serious breach of trust, morals, the standards that govern Senate conduct and possibly, criminal laws. We do not yet know the full extent of these violations. But we do need to repair the loss of trust brought on by this breach of confidentiality and privacy if we are ever to be able to resume our work in the spirit of cooperation and mutual respect that is so necessary to make progress.

This is an administration that promised to unite the American people but that has chosen time and again to act with respect to judicial nominations in a way that divides us. This is an administration that squandered the goodwill and good faith that Democrats showed in the aftermath of September 11, 2001. This is an administration that refused to acknowledge the strides we made in filling 100 judicial vacancies under Democratic Senate leadership in 2001 and 2002 while overcoming anthrax attacks and in spite of Republican mistreatment of scores of qualified, moderate judicial nominees of President Clinton.

Democratic cooperation with the President's slate of judicial nominees has been remarkable in these circumstances. With the overall cooperation of Senate Democrats, which partisan Republicans are loath to concede, this President has achieved record numbers of judicial confirmations. Despite the attacks of September 11 and their aftermath, as of today, the Senate will have confirmed 171 of President Bush' nominees to the Federal bench. This is more judges than were confirmed during President Reagan's entire first 4-year term. Thus, President Bush's 3-year totals rival those achieved by other Presidents in 4 years. That is also true with respect to the nearly 4 years it took for President Clinton to achieve these results following the Republicans' taking majority control of the Senate in 1994.

The 69 judges confirmed last year exceeds the number of judges confirmed during any of the 6 years from 1995 to 2000 when Republicans controlled the Senate during the Clinton Presidency, years in which there were far more vacant Federal judgeships than exist today. Among those 69 judges confirmed in 2003 were 13 circuit court judges. That exceeds the number of circuit judges confirmed during any of 1995, 1996, 1997, 1999, and 2000, when a Democrat was President.

The Senate has already confirmed 30 circuit court judges nominated by President Bush. This is a greater number than were confirmed at this point in the presidencies of his father, President Clinton, or the first term of President Reagan. Vacancies on the Federal judiciary have been reduced to the lowest point in two decades and are lower than Republicans allowed at any time during the Clinton Presidency. In addition, there are more Federal judges serving on the bench today than at any time in American history.

This week, the chairman of the Senate Judiciary Committee will hold a third hearing for circuit court nominees. Traditionally, the number of nominees who have received hearings and who are confirmed in a Presidential election year has been lower than in other years. In 1996, only four circuit court nominees by President Clinton received a hearing from the Republican Senate majority all year, and it took until July 31 to have a hearing for the third circuit court nominee. By that standard, Chairman Hatch has now moved seven times more quickly than he did for President Clinton's nominees in 1996.

In 2000, only five circuit court nominees by President Clinton received a hearing from the Republican Senate majority. Of course, two of those outstanding and well-qualified nominees in 2000 were never allowed to be considered by the committee or the Senate. By contrast, as of tomorrow we will have held hearings for three circuit court nominees. By the standard Republicans set in 1996 and 2000, we would be done for the entire year.

I congratulate the Democratic Senators on the committee for showing a spirit of cooperation and restraint in the face of a White House and Republican majority that so often has refused to consult, compromise or conciliate. I regret that our efforts have not been fairly acknowledged by partisan Republicans and that this administration continues down the path of confrontation. While there have been controversial nominees whom we have opposed as we exercise our constitutional duty of advice and consent to lifetime appointments on the Federal bench, we have done so openly and on the merits.

For the last 3 years I have urged the President to work with us. It is with deep sadness that I see that this administration still refuses to accept the Senate's shared responsibility under the Constitution and refuses to appreciate our level of cooperation and achievement.

That we are proceeding to confirm Mark Filip today is another example of extraordinary Democractic cooperation to fill vacancies in the Federal judiciary, despite the Republicans' consistent and unprecedented attacks. Unfortunately, Mark Filip is another young, Federalist Society member whose record raises concerns, just as the record of far too many of President Bush's judicial nominees.

First, Mr. Filip is only 37 years old. He has been out of law school less than 12 years and just a decade ago he was clerking across the street for Justice Scalia. Second, his record demonstrates a partisan, political background. Mr. Filip worked as a volunteer Republican election monitor in Broward County, Florida during the manual recount of ballots in the contentious 2000 election. Mr. Filip has also made several contributions to Republican candidates and political action committees. While in law school,

he was vice president of the Harvard Law School Federalist Society and he authored an article entitled ``Why Learned Hand Would Never Consult Legislative History Today.'' In this article, Mr. Filip argues that legislative history should be rejected by judges because it reflects nothing more than the desires of congressional staff and lobbyists, and because it does not reflect the majority will of Congress. More important, Mr. Filip wrote that, when confronted with statutory language that would lead to an absurd result, a judge should apply his or her own reasoning rather than legislative history.

The senior Senator from Illinois met with Mr. Filip to address his background and suitability to be a Federal judge.

Senator Durbin is a thoughtful man and I respect his judgment. Senator Durbin's willingness to supply this nomination says alot. I am hopeful that Mr. Filip will be a person of his word; that he will follow the law and not seek out opportunities to overturn precedent or decide cases in accord with his private beliefs rather than his obligations as a judge. I also sincerely hope that Mr. Filip will treat all those who appear before him with respect, and will not abuse the power and trust of his position. Sometimes, we take a risk allowing a nominee to be confirmed. This is, frankly, one of those times.

Unfortunately, the Senate has taken a risk and confirmed other nominees of this President who assured the committee that they would follow precedent and would not be results-oriented. In their brief time on the bench, they have already proven to be judicial activities eager to roll back individual rights and limit the authority of Congress to protect civil rights. A number of President Bush's 30 circuit court nominees already confirmed by the Senate have written significant opinions that show their bias in favor of powerful business interests over individual Americans.

For example, Jeffrey Sutton was one of Bush's most controversial appellate court nominees to be confirmed. At the time of his nomination, his record raised serious concerns. He had aggressively pursued a national role as the leading advocate of States' rights and pushed extreme positions in order to limit the ability of Congress to act to prevent discrimination and protect civil rights. His answers to questions posed by Judiciary Committee members did not show that he would be able to put aside his years of passionate advocacy in favor of States' rights and against civil rights. After a lengthy floor debate, he was confirmed by a vote of 52-41, which was the fewest votes in favor of any judicial nominee in the last 20 years and more than enough negative votes to have sustained a filibuster.

In less than 1 year on the bench, he has already issued a dissenting opinion essentially in favor of States' rights and that would have limited Congress' authority under the Commerce Clause. In this case, decided in December, the question was whether a core function of municipal government--the provision of firefighting services--impacts interstate commerce such that an individual can be indicted under a Federal antiarson statute for destroying a fire station. The majority Sixth Circuit panel held that the fire station was used in an activity affecting interstate commerce, relying on the express language of the statute.

Judge Sutton's dissent is a remarkable opinion whose beginning evidences that he has turned his passionate advocacy into judicial activism. His opinion begins, ``Some say the world will end in fire, Some say in ice.'' Judge Sutton concludes that the Federal arson law only applies to buildings with an ``active employment for commercial purposes,'' thereby seeking to narrow the law significantly. His opinion forcefully states that to ``conclude otherwise is to embrace the view that even the most attenuated connections to commerce will suffice in prosecuting individuals under this statute.'' In Judge Sutton's view, arson is a local crime and the ``National Legislature'' had not clearly conveyed its purpose to regulate an area traditionally regulated by the States.

Ironically, his dissent cautions that ``Federal courts should not casually read a statute in a way that alters the Federal-State balance.'' However, he himself ignores the plain language of the statue and legislative history in his attempts to do just that--to alter the balance in a way that favors his own personal and ideological view of States' rights.

John Roberts is a second controversial nominee who, in his few months on the bench, has already displayed a preference for pursuing political and ideological goals above following precedent. Judge Roberts recently issued a troubling dissent from a decision by the full D.C. Circuit that would have indulged another request by the Bush administration to keep secret the records of Vice President Cheney's energy task force.

The case was part of a continuing effort on behalf of the Vice President to avoid compliance with numerous court orders requiring him to provide records of his meetings with the National Energy Policy Development Group. Two nonprofit organizations brought litigation claiming that the Vice President's task force had violated Federal law by not making its records public. In order to maintain the secrecy of these records, the Vice President had filed an emergency petition for a remedy that the majority noted ``is a drastic one, to be invoked only in extraordinary situations.'' The majority in the case stated that, were they to accept the Vice President's arguments, they would in effect ``have transformed executive privilege from a doctrine designed to protect Presidential communications into virtual immunity from suit'' and noted that ``the President is not `above the law,' he is subject to judicial process.''

The full D.C. Court of Appeals denied Vice President Cheney's petition for rehearing en banc. Judge Roberts dissented. He would have indulged the Vice President's desperate attempts to avoid compliance with court orders by granting a motion for rehearing, despite the fact that the D.C. Circuit's five judge majority was the fourth panel of judges to hold that these records must be made available.

A third example of a recently confirmed Bush nominee who has continued to pursue his ideological and political agenda on the bench-- as many of us feared at the time of his nonimation--is Judge Dennis Shedd. Judge Shedd wrote the opinion in a ruling so hostile to organized labor that one of the most conservative judges on that court harshly stated that Shedd's opinion ``overstepped [the] boundaries of a reviewing court.''

In this case, the National Labor Relations Board and an administrative law judge found that an employer had unlawfully solicited nine of its employees to sign antiunion statements and had unlawfully withdrawn recognition of the union. Judge Shedd ignored the applicable standard of review and asserted his own view of the facts to conclude that the NLRB had erred in its determination. Approaching the case from a position hostile to organized labor, Judge Shedd ``reconstructed'' the facts of the case, and allowed an employer, who had previously been found to have used illegal tactics in order to decertify a union, to escape any responsibility. Judge Wilkinson's strong dissent highlighted the expertise of the NLRB in examining an employer's conduct and that the reviewing court's role was limited to determining whether the NLRB had taken a permissible view of the evidence.

In other cases, as many of us had feared, President Bush's circuit court nominees are already handing down decisions to roll back individual rights, civil rights and Congress' authority. Among these are:

A majority opinion by Judge Gibbons, on the Sixth Circuit, which fails to provide accommodation to a person with multiple sclerosis under the Americans with Disabilities Act;

A dissent by Judge Shedd in a bankruptcy case, which would have led to foreclosure on a family farm--a decision which the majority said ``misses the mark''; and

A dissent by Judge Rogers in a Title VII case involving illegal retaliation against an African-American employee which would have made it difficult for any employee to present their retaliation claims to a jury.

The President has claimed time and again that he seeks only to fill the bench with judges who will follow the rule of law. He claims that he ``has no litmus test'' for determining who will

and will not be appointed--that he makes his decisions based on the qualifications of the candidates. Despite these statements, the President's nominees seem to have certain striking similarities. They seem to favor powerful interests over individuals. They favor States' rights over civil rights. And many of them are all loyal Federalist Society members and committed to the political agenda of the most conservative wing of the Republican Party. The Senate's constitutional duty to provide advice and consent on judicial nominations is vital in these circumstances--Federal judges must be devoted first and foremost, not to a political platform or certain parties, but to the rule of law, the Constitution, and the basic principles of fairness and justice.

If we are to allow the President to pack the courts with political party loyalists and radical right-wing ideologues, we will cease to have a Government of laws and will end up with a Government controlled by the views of a few. We would risk having a judiciary that functions as a rubber stamp for any right wing argument, policy, or political goal sought to be achieved via the courts.

Yet, despite the troubling records of so many of Bush's confirmed judges and the other disappointing developments this year, Senate Democrats have confirmed vast members of nominees who have come to the Senate floor and are today again making sure that the process of judicial appointments moves forward. Democrats have not obstructed the confirmation process for judicial and executive branch nominations as Republicans did when President Clinton was in office. Today, we proceed to confirm a judicial nominee in spite of the President's recent actions, those of Senate Republicans, and serious reservations about this nominee.

Mr. Filip's nomination was reported favorably to the Senate last October. Had the Republican leadership wanted to proceed on it, this nomination could easily have been confirmed in October, November, or December last year before the Senate adjourned. Instead, partisans chose to devote 40 hours to a talkathon on the President's most controversial and divisive nominees rather than proceed to vote on those judicial nominees with the support of the Senate. The delay in considering this nomination is the responsibility of the Republican leadership.

I congratulate Mark Filip and his family on his confirmation.

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

Mr. President, I will take a moment.

I commend both the Republican and Democratic leaders for opening the Senate today. I was recollecting, as I came in, we had another majority leader from Tennessee, Howard Baker--the Democrat leader was Robert Byrd; both distinguished friends and colleagues--and there had been an explosive device put outside the Capitol one evening, something that could not be done today because there are changes in our security. But the majority leader recessed that evening--it was going to be a late- night session. We adjourned a little earlier than we anticipated because we had worked out something and needed time for drafting and worked out a logjam we had, and there was an explosive device put out-- and the distinguished Presiding Officer remembers this time very well because he was also serving here, as I was, at the time--blowing out both the Republican and Democratic cloakrooms. There would have been great casualties had we been there. The next morning, as I recall, nearly 90 Senators were sitting in their seats. We came back in basically to say: Nothing is going to close us down.

So I commend my dear friend from Tennessee and my dear friend from South Dakota for opening up this session. I think this is a symbol of democracy throughout the whole world. Certainly in our country, the most obvious symbol of democracy is this Capitol Building. Every time we stay open, as we have after 9/11 and everything else, it demonstrates the leadership of our two leaders but also of the devotion to democracy we see in this Chamber.

That is all I am going to say. That is why I am here this morning. I wanted to compliment both of the leaders for opening up this session.

Madam President, last week I shared with the Senate several disappointing developments regarding judicial nominations: the Pickering recess appointment, the renomination of Claude Allen, and the pilfering of Democratic offices' computer files by Republican staff. In spite of all those affronts, Senate Democrats today cooperate in the confirmation of another nominee. We do so without the kinds of delays and obstruction that Republicans employed when President Clinton's judicial nominees were being obstructed and Republican Senators complained about his recess appointments as an affront to the Constitution and the Senate.

The first nominations issue I would like to discuss is the recess appointment of Judge Pickering. Just a few days ago on January 16, President Bush made his most cynical and divisive appointment to date when he bypassed the Senate and unilaterally installed Charles Pickering to the U.S. Court of Appeals for the Fifth Circuit. That appointment is without the consent of the Senate and is a particular affront to the many individuals and membership organizations representing African Americans in the Fifth Circuit who have strongly opposed this nomination.

With respect to his extreme judicial nominations, President George W. Bush is the most divisive President in American history. Through these nominees, President Bush is dividing the American people and undermining the fairness and independence of the Federal judiciary on which all Americans depend.

After fair hearings and open debate, the Senate Judiciary Committee rejected the Pickering nomination in 2002. Originally nominated in 2001 by President Bush, this nominee's record underwent a thorough examination by the Senate Judiciary Committee and was found lacking. Judge Pickering's nomination was rejected for this promotion by the Committee in 2002 because of his poor record as a judge and the ethical problems raised by his handling of his duties in specific instances. Nonetheless, the President sent back his nomination to the Senate last year, the first in our history to reject the judgment of the Judiciary Committee on a judicial nominee. This is the only President who has renominated someone rejected on a vote by the Judiciary Committee for a judicial appointment.

The renomination of Charles Pickering lay dormant for most of last year while Republicans reportedly planned further hearings. Judge Pickering himself said that several hearings on his nomination were scheduled and cancelled over the last year by Republicans. Then, without any additional information or hearings, Republicans decided to forego any pretense at proceeding in regular order. Instead, they placed the name of Judge Pickering on the committee's markup agenda and pushed his nomination through with their one-vote majority. The committee had been told since last January that a new hearing would be held before a vote on this nomination, but that turned out to be an empty promise.

Why was the Pickering nomination moved ahead of other well-qualified candidates late last fall? Why was the Senate required to expend valuable time rehashing arguments about a controversial nomination that has already been rejected? The timing was arranged by Republicans to coincide with the gubernatorial election in Mississippi. Like so much about this President's actions with respect to the federal courts, partisan Republican politics seemed to be the governing consideration. Indeed, as the President's own former Secretary of the Treasury points out from personal experience, politics governs more than just Federal judicial nominations in the Bush administration.

Charles Pickering was a nominee rejected by the Judiciary Committee on the merits--a nominee who has a record that does not qualify him for this promotion, who injects his personal views into judicial opinions, and who has made highly questionable ethical judgments. The nominee's supporters, including some Republican Senators, have chosen to imply that Democrats opposed the nominee because of his religion or region. That is untrue and offensive. These smears have been as ugly as they are wrong.

Yet the political calculation has been made to ignore the facts, to seek to pin unflattering characterizations on Democrats for partisan purposes and to count on cynicism and misinformation to rule the day. With elections coming up this fall, partisan Republicans are apparently returning to that page of their partisan political playbook.

Never before had a judicial nomination rejected by the Judiciary Committee after a vote been resubmitted to the Senate, but this President took that unprecedented step last year. Never before has a judicial nomination debated at such length by the Senate, and to which the Senate has withheld its consent, been the subject of a presidential appointment to the federal bench.

In an editorial following the recess appointment, The Washington Post had it right when it summarized Judge Pickering's record as a Federal trial judge as ``undistinguished and downright disturbing.'' As the paper noted: ``The right path is to build consensus that nonpartisanship and excellence are the appropriate criteria for judicial selection.'' Instead we see another dangerous step down the Republican's chosen path to erode judicial independence for the sake of partisanship and their ideological court-packing efforts. The New York Times also editorialized on this subject and it, too, was correct when it pointed out that this end-run around the advice and consent authority of the Senate is ``absolutely the wrong choice for one of the nation's most sensitive courts.''

Civil rights supporters who so strenuously opposed this nominee were understandably offended that the President chose this action the day after his controversial visit to the grave of Dr. Martin Luther King Jr. As the Nation was entering the weekend set aside to honor Dr. King and all for which he strived, this President made one of the most insensitive and divisive appointments of his Administration.

So many civil rights groups and individuals committed to supporting civil rights in this country have spoken out in opposition to the elevation of Judge Pickering that their views should have been respected by the President. Contrary to the false assertion made by The Wall Street Journal editorial page, the NAACP of Mississippi did not support Judge Pickering's nomination. Instead, every single branch of the Mississippi State Chapter of the NAACP voted to oppose this nomination--not just once, but three times. When Mr. Pickering was nominated to the District Court in 1990, the NAACP of Mississippi opposed him, and when he was nominated to the Fifth Circuit in 2001 and, again, in 2003, the NAACP of Mississippi opposed him. They have written letter after letter expressing their opposition. That opposition was shared by the NAACP, the Southern Christian Leadership Conference, the Magnolia Bar Association, the Mississippi Legislative Black Caucus, the Mississippi Black Caucus of Local Elected Officials, Representative Bennie G. Thompson and many others. Perhaps The Wall Street Journal confused the Mississippi NAACP with the Mississippi Association of Trial Lawyers, which is an organization that did support the Pickering nomination.

This is an administration that promised to unite the American people but that has chosen time and again to act with respect to judicial nominations in a way that divides us. This is an administration that squandered the goodwill and good faith that Democrats showed in the aftermath of September 11, 2001. This is an administration that refused to acknowledge the strides we made in filling 100 judicial vacancies under Democratic Senate leadership in 2001 and 2002 while overcoming anthrax attacks and in spite of Republican mistreatment of scores of qualified, moderate judicial nominees of President Clinton.

The second disappointing development is the renomination of Claude Allen as a nominee to the Fourth Circuit. Last week, the President sent the nomination of Claude Allen back to the Senate. From the time this nomination was originally made to the time it was returned to the President last year, the Maryland Senators have made their position crystal clear. This Fourth Circuit vacancy is a Maryland seat and ought to be filled by an experienced, qualified Marylander. Over the Senate recess, the White House had ample time to find such a nominee, someone of the caliber of sitting U.S. District Court Judges Andre Davis or Roger Titus, two Maryland lawyers whose involvement in the State's legal system and devotion to their local community is clear. This refusal to compromise is just another example of the White House engaging in partisan politics to the detriment of an independent judiciary.

The additional disappointment we face is the ongoing fallout from the cyber theft of confidential memoranda from Democratic Senate staff. This invasion was perpetrated by Republican employees both on and off the committee. As revealed by the chairman, computer security was compromised and, simply put, members of the Republican staff took things that did not belong to them and passed them around and on to people outside the Senate. This is no small mistake. It is a serious breach of trust, morals, the standards that govern Senate conduct, and possible criminal laws. We do not yet know the full extent of these violations. But we need to repair the loss of trust brought on by this breach of confidentiality and privacy if we are ever to recover and be able to resume our work in a spirit of cooperation and mutual respect that is so necessary to make progress.

Democratic cooperation with the President's slate of judicial nominees has been remarkable in these circumstances. One way to measure that cooperation and the progress we have made possible is to examine the Chief Justice's annual report on the Federal judiciary. Over the last couple of years, Justice Rehnquist has been ``pleased to report'' our progress on filling judicial vacancies. This is in sharp contrast to the criticism he justifiably made of the shadowy and unprincipled Republican obstruction of consideration of President Clinton's nominees. In 1996, the final year of President Clinton's first term, the Republican-led Senate confirmed only 17 judicial nominees all year and not a single nominee to the circuit courts. At the end of 1996, the Republican Senate majority returned to the President almost twice as many nominations as were confirmed.

By contrast, with the overall cooperation of Senate Democrats, which partisan Republicans are loath to concede, this President has achieved record numbers of judicial confirmations. Despite the attacks of September 11 and their aftermath, the Senate has already confirmed 169 of President Bush's nominees to the Federal bench. This is more judges than were confirmed during President Reagan's entire first 4-year term. Thus, President Bush's 3-year totals rival those achieved by other Presidents in 4 years. That is also true with respect to the nearly four years it took for President Clinton to achieve these results following the Republicans' taking majority control of the Senate in 1995.

The 69 judges confirmed last year exceeds the number of judges confirmed during any of the 6 years from 1995 to 2000 that Republicans controlled the Senate during the Clinton Presidency years in which there were far more vacant Federal judgeships than exist today. Among those 69 judges confirmed in 2003 were 13 circuit court judges. That exceeds the number of circuit court judges confirmed during all of 1995, 1996, 1997, 1999, and 2000, when a Democrat was President.

The Senate has already confirmed 30 circuit court judges nominated by President Bush. This is a greater number than were confirmed at this point in the presidencies of his father, President Clinton, or the first term of President Reagan. Vacancies on the federal judiciary have been reduced to the lowest point in two decades and are lower than Republicans allowed at any time during the Clinton presidency. In addition, there are more Federal judges serving on the bench today than at any time in American history.

I congratulate the Democratic Senators on the committee for showing a spirit of cooperation and restraint in the face of a White House that so often has refused to consult, compromise or conciliate. I regret that our efforts have not been fairly acknowledged by partisan Republicans and that this Administration continues down the path of confrontation. While there have been difficult and controversial nominees whom we have opposed as we exercise our constitutional duty of advice and

consent to lifetime appointments on the Federal bench, we have done so openly and on the merits.

For the last 3 years, I have urged the President to work with us. It is with deep sadness that I see that this administration still refuses to accept the Senate's shared responsibility under the Constitution and refuses to appreciate our level of cooperation and achievement.

Today, the chairman held another hearing on another circuit court nominee. That hearing is another demonstration of how untrue the rhetoric is that is so often bandied about by Republican partisans that Democrats are obstructing the confirmations of this President's judicial nominees. The reality is that we have cooperated to an extraordinary extent, especially when contrasted with Republican treatment of President Clinton's judicial nominees.

Today's hearing was the second in the last 2 weeks for circuit court nominees. Traditionally, the number of nominees who have received hearings and who are considered in a presidential election year has been lower than in other years. In 1996, only four circuit court nominees by President Clinton received a hearing from the Republican Senate majority. In 2000, only five circuit court nominees by President Clinton received a hearing from the Republican Senate majority. Of course, two of those outstanding and well-qualified nominees in 2000 were never allowed to be considered by the committee or the Senate. By contrast, here we are, before the end of the first month of 2004, and we have already held hearings for two circuit court nominees. By the standard Republicans set in 1996 and 2000, we would be half done for the entire year.

Moreover, that we are proceeding to confirm Judge Sharpe today is another example of Democratic cooperation in the wake of the President's recess appointment of Charles Pickering. This temporary appointment can be distinguished from President Clinton's recess appointment of Judge Roger Gregory to the Fourth Circuit in December 2000 in many ways, including from the manner in which Republican Senators reacted to President Clinton's recess appointments by shutting down the confirmation process.

Roger Gregory had been denied a Judiciary Committee hearing even though he had the bipartisan support of both of his home State Senators--Democratic Senator Chuck Robb and Republican Senator John Warner. By contrast, Judge Pickering participated in hearings and an extensive record was developed on which his nomination was opposed in the Judiciary Committee and in the Senate on the merits on the basis of his record as a district court judge. Roger Gregory's nomination was never allowed to be considered by the Judiciary Committee. By contrast, Judge Pickering's nomination was fully and fairly debated in 2002 and rejected by the Judiciary Committee. Indeed, Judge Pickering's renomination was the first time a President had resent a judicial nomination to the Senate after the Judiciary Committee had voted on and rejected that judicial nomination. Likewise, Judge Pickering's temporary appointment is the first after rejection by the Judiciary Committee and after the Senate has debated a judicial nomination and withheld its consent.

Moreover, Roger Gregory's recess appointment fit squarely in the tradition of Presidents exercising such authority in order to expand civil rights and to bring diversity to the courts. Four of the five first African American appellate judges were recess-appointed to their first article III position, including Judge William Hastie in 1949, Judge Thurgood Marshall in 1961, Judge Spottswood Robinson in 1961, and Judge Leon Higginbottom in 1964. Unlike these nominees and the public purposes served, Judge Pickering was opposed by civil rights groups, including all chapters of the Mississippi NAACP, the Southern Christian Leadership Conference, and by the Magnolia Bar Association. Rather than bring people together and move the country forward, this President's recess appointment is another source of division.

The Senate reaction to the recess appointments of President Clinton and President Bush has also differed dramatically. When President Clinton used his recess appointment power to appoint James Hormel Ambassador to Luxembourg, Senator Inhofe responded by saying that President Clinton had ``shown contempt for Congress and the Constitution'' and declared that he would place ``holds on every single Presidential nomination,'' which Republicans did in obstruction of President Clinton's nominees. Republicans continued to block nominations until President Clinton agreed to make recess appointments only after Congress was notified in advance. On November 10, 1999, 17 Republican Senators sent a letter to President Clinton telling him that if he violated the agreement, they would ``put holds for the remaining of the term of your Presidency on all of the judicial nominees.''

In November 1999, President Clinton sent a list of 13 positions to the Senate that he planned to fill through recess appointments. In response, Senator Inhofe spoke out on the Senate floor denouncing five of the 13 civilian nominees with a threat that if they went forward, he would personally place a hold on every one of President Clinton's judicial nominees for the remainder of the administration. That led to more delays and to the need for a vote on a motion to proceed to override the Republican objections.

When President Clinton appointed Judge Gregory, Senator Inhofe called it ``outrageously inappropriate for any president to fill a federal judgeship through a recess appointment in a deliberate way to bypass the Senate.'' Judge Gregory was eventually confirmed after his renomination in 2001 with near unanimity. There was only one negative vote. Senator Lott cast that vote and his spokesman said his opposition was done to underscore his stance that ``any appointment of federal judges during a recess should be opposed.'' Ironically, Senator Lott is now one of Judge Pickering's strongest supporters.

As far as I know, no Senate Democrats were consulted by this President before he made his divisive appointment of Judge Pickering. It was only after President Bush appointed Charles Pickering to the bench that I learned about the appointment. Despite that, Senate Democrats are today participating in making sure the process of judicial appointments moves forward. Democrats have not obstructed the confirmation process for judicial and executive branch nominations as Republicans did when President Clinton made recess appointments. In fact, already this week, less than 2 weeks after President Bush appointed Judge Pickering and a number of other executive branch officials, we have joined in confirming 18 Presidential nominees by unanimous consent. Today we proceed to confirm a judicial nominee in spite of the President's recent actions and those of Senate Republicans.

The nomination of Judge Gary Sharpe has the support of both his home State Senators, both of whom are Democratic Senators. The Democratic Senators who serve on the Judiciary Committee all supported this nomination when it was reported favorably to the Senate in October last year. Had the Republican leadership wanted to proceed on it, this nomination could easily have been confirmed in October, November or December last year before the Senate adjourned. Instead, partisans chose to devote 40 hours to a talkathon on the President's most controversial and divisive nominees rather than proceed to vote on those judicial nominees with the support of the Senate. The delay in considering this nomination is the responsibility of the Republican leadership.

I congratulate Judge Sharpe and his family on his confirmation. He is the 170th judge confirmed by the Senate and will be the 171st appointed by President Bush.

I yield to the senior Senator from New York and his colleague so they can have the remainder of my time.

Mr. President, we all agree that among the things we learned from the September 11 attacks was that we need to do a much better job of enforcing our immigration laws. While no system is foolproof, we should at least make it as difficult as possible to evade our border controls and enter this country illegally.

In doing so we must also be sure that we protect the rights and dignity of innocent travelers, to ensure that those who have every right to come to this country are able to do so with a minimum of delay and difficulty. We must also ensure that we do not betray our historic commitment to asylum, a dedication to provide refuge to those who flee oppression.

Since September 11, we have thwarted some illegal immigrants, although we do not know how many of them, if any, sought to come here to commit acts of terrorism. But we have also read about instances where innocent people were swept up by our border patrol agencies, and subjected to unnecessary and humiliating treatment.

These abuses not only damage the individual, but they damage our image around the world. As a result, people who would otherwise travel to the United States, as tourists, students, or for business, are deciding against coming out of fear that because of their race, or ethnicity, or nationality, or just because of the chance of a mistake, they might be mistreated or imprisoned.

Today I want to call attention to two cases. The first case involves Ms. Antje Croton, a German citizen married to an American school teacher from Brooklyn, whose ordeal was described in the January 21, 2004 edition of the New York Times.

Ms. Croton encountered a nightmarish immigration fiasco as she and her infant daughter tried to re-enter the United States after spending the holidays in Germany. The New York Times called Ms. Croton's ordeal ``Kafkaesque.'' There is no better word for it.

Concerned that her travel permit had expired in July, Ms. Croton visited a Department of Homeland Security, DHS, office in New York City before leaving the country for Germany on December 9, 2003. After talking to officials there, she was assured that her permit was valid through April 2004. Believing her documents were in order, Ms. Croton left for Germany.

Upon her return, Ms. Croton was told by an immigration official at the airport in New York that her travel permit had expired, and that she could not enter the country. With her infant daughter, Ms. Croton was interrogated until 2 a.m. and told she was to be put on the next plane back to Germany, all without informing her husband, who was waiting in the terminal.

At one point, Ms. Croton and her daughter were taken to a room where a dozen individuals, including some who were suspected of transporting drugs and illegal firearms, were being held. After several more hours of back and forth, immigration officials finally gave Ms. Croton the option of leaving the airport if she bought a return ticket that left for Germany within 30 days.

Ms. Croton and her husband spent the next 30 days negotiating layers of byzantine immigration rules and regulations in an effort to resolve her case before she was forced to depart. Even with the help of elected officials and immigration lawyers, the couple was getting nowhere. It was only after an inquiry from a New York Times reporter that the DHS began to pay attention.

The second case involves Sonam, a 30-year-old Buddhist nun whose plight was recounted in the January 27, 2004 edition of the Washington Post. Sonam, who goes by only one name, was detained at Dulles International Airport last August after arriving from Nepal.

After her father was arrested and tortured, Sonam fled from her native Tibet, controlled by China, to Nepal 3 years ago. She reached Nepal by walking for 8 days across mountainous territory. She then fled Nepal last summer, after the government there began returning Tibetan refugees to China, where they face prison and torture.

Sonam was granted asylum by a United States immigration judge last November, but the DHS immediately appealed the ruling and refused to release Sonam from custody during the pendency of the appeal. As a result, she may spend years in a local jail outside Richmond where she has been detained. In this jail, she is housed among common criminals and is unable to communicate with anyone because she does not know English.

The DHS defends its punitive policies toward asylum seekers on the grounds that it is concerned that terrorists may manipulate the asylum process. It strains belief to imagine that the DHS believes that a nun from Tibet with no knowledge of English or history of violence, whom a U.S. Government official has found deserving of asylum, is a potential terrorist.

Even Asa Hutchinson, the DHS Undersecretary for Border and Transportation Security, told the Post that ``[e]ven a well-balanced policy can get out of kilter on an individual case because someone has exercised poor judgment.'' It is clearly the case here that someone at DHS is exercising poor judgment, and Secretary Ridge or Undersecretary Hutchinson should do something to rectify this injustice.

There is no question that securing our borders from international terrorists, criminals, and illegal immigrants is one of the most important responsibilities of the Federal Government. We are more aware of this today than ever before.

But this does not give DHS a license to act in a bureaucratic and heavy-handed manner, which is precisely how it appears they behaved in these cases.

Border security involves striking a balance. Instead of wasting time and resources scaring and harassing a German woman and her baby or a Tibetan nun, who pose no threat to the security of the United States, DHS should be focused on stopping real terrorists and criminals. Moreover, in the Croton case, an immigration official told Ms. Croton that her paperwork was in order before she left the United States.

Thanks to the New York Times and others, the Croton case may be headed for a happy ending. But this is an instance where the victim spoke English,

is married to an American, and is a citizen of a nation that is a close ally of the United States.

What if this had involved someone who spoke little or no English? What if the person in question were not married to an American citizen? What if the media and elected officials had not been aware of it, and had not gotten involved? I suspect the individual would have been deported, even though their only offense was listening to the advice of an immigration official.

Meanwhile, the outcome of the Sonam case remains unclear, and unless the DHS acts, she can expect to spend most if not all of 2004 behind bars.

There are probably dozens, if not hundreds of other cases, of would- be immigrants and asylum seekers that do not have happy endings that we do not know about. Even one case like this is too many. Immigrants are responsible for the diversity of cultures, ideas, and practices that make up our society. We have an important responsibility to help those attempting to come to this Nation legally.

Equally important, we have an interest in treating immigrants fairly and with respect. Poor treatment of legal immigrants squanders goodwill that the United States spends billions of dollars each year--through foreign aid, international exchanges, and public diplomacy programs--to cultivate.

To be sure, we want our DHS officials to do their jobs effectively. We have to make sure that people entering this Nation are doing so legally, and are not a threat to the United States. But, we also have to make sure that DHS officials act in a fair and professional manner.

I hope that the DHS is reviewing what went wrong in these cases, and taking whatever steps are necessary to prevent it from happening again. I ask unanimous consent that the New York Times and Washington Post articles be printed in the Record.

Mr. President, I often come to this floor to thank various staff for their long, tireless and often anonymous work on behalf of the U.S. Senate and the 100 Senators who serve here. But it is not often that I come down here to acknowledge a public servant who has made such an incredible contribution to this institution and our shared State of Vermont.

Today, I would like to honor the 25 years of service of Susan Boardman Russ, who has served Senator Jeffords and the people of Vermont with extraordinary distinction.

Vermont is a small place. I have known Susan most of her life. Her father delivered two of my three children.

Over the years, I have watched her grow with a mixture of awe and admiration. Susan is brilliant, articulate, and has always kept her eyes focused on what is best for Vermont.

Senator Jeffords is to be commended for recognizing her talent early on and for keeping her in the fold this long. While Susan has moved with her husband and beautiful daughter to Houston, TX, I know she will always be a Vermonter at heart.

Recently, one of Vermont's finest journalists, Christopher Graff, wrote a beautiful tribute to Susan. I ask unanimous consent that it be printed in the Record.

Mr. President, I see the Senator from Maryland on the floor, an important member of the Foreign Operations Subcommittee, and I am under the impression that she would like to discuss an issue concerning the International Fund for Ireland, IFI, with Senator McConnell and myself.

I thank the Senator from Maryland. I also believe that IFI should consider increasing its support for these types of programs.