Floor Statements

Mr. President, this has been interesting, and I think for the public who might be watching, they may want to know what they are getting for their $100,000 to $150,000 of taxpayer's money that is being spent in this filibuster and those staff members who have lost any ability to have time for themselves and their families.

So I thought I might boil this down to its essence. Have filibusters been used before on Executive Calendar nominees, including judicial nominees to the lower courts, as well as to the

Supreme Court? Of course they have. No matter how much my friends on the other side say no, of course they have. They know that.

The Congressional Record is open for all to read, and we do not even have to go back to ancient history for this. Three years ago, there were even two simultaneous Republican filibusters on the Senate floor against Richard Paez and Marsha Berzon, two of President Clinton's nominees. In fact, here is a list of Republican filibusters of nominees. It is a pretty long list.

I do not think we have to remind our friends on the other side of the aisle about the dozens more that were blocked not through votes in the open, on the Senate floor, but through holds by anonymous Republican Senators. In fact, these were filibusters by one or more anonymous Republicans. If one or more Republicans objected to one of President Clinton's nominees, they never got a vote. They never got on the floor. They never got out of committee. One actually did get out, and then by a party line vote he was voted down. That was the African-American chief justice of the Missouri Supreme Court.

So what happened in these one-person anonymous filibusters by the Republicans? Not 4 people being held up, it was 63 of President Clinton's nominees. Sixty-three of President Clinton's nominees were blocked by the Republicans by a one-person anonymous filibuster.

So are filibusters, including judicial nominees, rare? Sure, they are. And, incidentally, these are the Clinton circuit court nominees blocked by the Republicans during 1995 to the year 2000. As we can see, it is a pretty large number: James Beatty, Rich Leonard, Jorge Rangel, Robert Raymar, Barry Goode, Alston Johnson, James Duffy, Elena Kagen, James Wynn, Kathleen McCree Lewis, Enrique Moreno, James Lyons, Allen Snyder, Kent Markus, Robert Cindrich, Stephen Orlofsky, Roger Gregory, Christine Arguello, Elizabeth Gibson, Bonnie Campbell, Andre Davis, Richard Paez, Marsha Berzon, H. Lee Sarokin, and Rosemary Barkett.

The Senate's rules are intended to protect against abuses by the majority that at any given time controls the Senate. I have been here eight times in the majority, eight times in the minority. So the majority and minority go back and forth all the time. In this case, the Senate's rules protect against abuses of power--we have a system of checks and balance--especially by a White House that is so bent on controlling all the levels of power. They even want the Senate to change their rules, rules that have governed this body for over 200 years.

Now, should filibusters be used sparingly? Of course. And they have been used sparingly. But unlike the times of the recent Republican filibusters where 63 of President Clinton's nominees were stopped, we have used this very sparingly against a President who wants to run roughshod over other safeguards built into our system of government and into the very rules and practices of the Senate and its committees.

By using it sparingly, all this talk--you know, it is almost ironic to see my Republican friends with a straight face say how terrible this is and spend $150,000 or so of the taxpayers' money to tell us how terrible this is, after they stopped, by using 1-person filibusters, 63 of President Clinton's nominees.

Let us put the chart up there, if we might. Here is what we have done. We did not stop 63, as they did. We have stopped four. We have confirmed 168, and we stopped 4. There is even a T-shirt floating around which says: We confirmed 168 of President Bush's nominees and what did we get for it? When you look at the back, it says: All I got was this lousy T-shirt.

So this year, with breathtaking arrogance and a certain disdain for the past and certainly an unwillingness to be honest about the history of the Senate, we have seen a systematic dismantling of the Judiciary Committee's own rules. One by one, Republican majorities have changed, bent, and even broken the longstanding rules and practices that are intended to protect the rights of Senators to defend the rights of their States and their constituencies. These are the very same rules they used--some would say abused--when there was a Democratic President.

Would filibusters be necessary at all if the President lived up to the Constitution's injunction that he seek not only the Senate's consent but also its advice in selecting candidates for the independent Federal judiciary? Remember, the Federal judiciary is not supposed to be an arm of the Republican Party or the Democratic Party. Of course, it is supposed to be independent. It is a real question: Is there a clear way forward without the need to prevent the confirmation of any judicial nominee? The President has the ability to stop all of this. None of this impasse would be necessary if the President actually followed advice and consent.

If the President did what other Presidents of both parties have done, where they have tried to be a uniter, not a divider, if the President, who has declared his disdain for what he calls judicial activism, had nominated people who were not judicial activists, if he had tried to unite and not divide, none of this would be happening.

Instead of working with the Senate to name mainstream nominees to our courts, he has chosen instead to try to politicize the courts. He and his aides have unabashedly declared that they are out to remake the federal judiciary in the image of ideological activism. Our courts are foundational to our system. Our independent judiciary is the envy of the entire world.

In deference to groups on the far right, he has nominated judicial activists who cannot help but raise questions about their impartiality and their capability to administer justice for all.

What we need is an independent judiciary. Time and again, Democratic Senators have acted in good faith to fill vacancies that Republicans kept open for years when there was a Democratic President. Time and again they have blocked, by one or two anonymous Republican holds, Democratic nominees of President Clinton's from going forward.

We have filled those. That is why we are able to get 168 of the President's nominees through. We have stopped four. Come on. Is this worth spending the taxpayers' money? Perhaps not. Maybe, though, they believe it is worth it to send out fundraising letters.

The public's priorities v. the Republican leadership's priorities: During this 30-hour talkathon, the Republican leadership of the Senate again is following a script laid out for it by a White House intent on bending all other branches of government to its will. This is a White House intent on establishing some sort of unitary government and intent on removing the checks and balances among our three branches of government that are a foundation of the American system. In furtherance of this script, in these rare final hours of this year's legislative session, the Republican leadership has decided to abandon work on the real priorities of the American people. They are obstructing those priorities, in favor of repetitive speeches about promoting these four controversial nominees to lifetime positions as federal judges--four people who already have good, well-paying jobs--is more important than the three million Americans who have been struggling to find any jobs at all.

The Republican leadership has already overshot the Senate's adjournment date by more than a month. We have already had to enact three continuing resolutions to keep the Federal Government operating because the appropriations bills that the Congress needs to pass have not been enacted. It is now more than five weeks after the fiscal year began and we should have completed all 13 appropriations bills, but the Republican Congress has enacted a total of only four out of 13.

The remaining annual appropriations bills include the funds that go to improve our schools. The funds that NIH uses to advance our medical knowledge in fighting disease and illness. The resources used by EPA to enforce our clean air and water laws. They include appropriations for our veterans and for law enforcement.

Yesterday evening as the Republicans gathered to accommodate the programming requests of a certain television network, the senior Senator from West Virginia was trying to get the Senate to do its work. Senator Byrd, as the ranking Democrat on the

Appropriations Committee, was searching for the Republican leader and urging the Senate to complete its work on the appropriations bill that funds services for our military veterans. He asked that the Senate continue that work so that we could finish Senate consideration of this important bill and proposed that we do so in just two hours. The Republican leadership objected. He renewed his request when the Republican leader did appear on the floor but was, again, rebuffed by Republican objection. Those few minutes may turn out to be the most telling of this entire so-called debate. Republicans chose to sacrifice the work of the Senate, the priorities of the American people and the interests of our veterans to a partisan political stunt.

In one of their many press conferences on this diversion, on November 6, the Republican leader committed to ``complete the appropriations process'' before beginning this charade. Even the junior Senator from Pennsylvania, agreed with that and said: ``The leader's right. What we're about to embark in next week, after the appropriations process has run its course, is to enter into a debate. . . .'' Well, when given the chance to honor that commitment last night, the Republican caucus chose partisan theater over the work of the Senate.

There is the unfinished business of providing a real prescription drug benefit for seniors. There is the Nation's unemployment and lack of job opportunities that confound so many American families. With millions of Americans having lost their jobs in the last three years, the Republican Senate is, instead, insisting on spending these final days of this session on a handful of highly controversial judicial nominations that divide the Senate and the American people and ignoring the needs of the almost 10 million Americans who are out of work, including those more than three million Americans who have lost their jobs since President Bush took office.

There are the corporate and Wall Street scandals that concern so many of those who have invested and placed their trust and financial security at risk in our securities markets. While we are listening to Republicans pontificate about a handful of highly controversial judicial nominees, some Republican has an anonymous hold on S. 1293, the Criminal Spam Act of 2003. This is a bipartisan bill that can do something about the worst spam abuses. Earlier this week, the Washington Times reported that spam is doing more damage to our economy than hackers or viruses. A few weeks ago the entire Senate joined in adopting a version of S. 1293 to the Burns-Wyden bill and we joined to pass that bill. Now some Republican has turned around and under cover of anonymity is holding up the bipartisan bill that can be enacted before adjournment this year that can stem the tide against the worst abuses and fraudulent conduct that is gumming up our internet economy and communications. This is the type of anonymous Republican hold that was likewise responsible for holding up more than 60 of President Clinton's qualified nominees to the federal judiciary from 1995 through 2001.

There is the need for Congress to continue the federal highway programs that build and repair our roads and highways and bridges. There is the need to perform real oversight of the U.S.A. PATRIOT Act and to provide real oversight for the war in Iraq. Just as Republicans objected to the Senate Judiciary Committee investigating the factors that led to September 11, Republicans are now objecting and preventing a full investigation by the Select Intelligence Committee of what led the Bush administration to contend that Saddam Hussein had weapons of mass destruction and was about to use them against the United States and that we had to embark earlier this year on a preemptive war.

Nor has the Senate taken any action on the misrepresentations made to us by Bush administration officials about their efforts to gut Clean Air Act enforcement. When they appeared and testified before us, they declared that their policies would not affect enforcement of the Clean Air Act and ongoing cases. Over the last two weeks we have seen how far from the truth that testimony was.

For the last three years this Administration has run roughshod over environmental protection and the Republican Senate has done nothing to stem the tide. They have catered to special interests in rolling back protections for clean water, clean air, toxic cleanups and public health. The Senate should be focusing attention on these attacks upon the environment and these rollbacks, but nothing could be farther from the agenda of the Republican Senate leadership.

Forty-two environmental rollbacks by the Bush administration that have been announced on Friday is the number the Senate should be working on. There have now been more environmental rollbacks than there are vacancies throughout the entire federal judiciary. The Bush administration's announcement that they are halting enforcement actions against industrial polluters under the New Source Review provision of the Clean Air Act flatly contradicts the assurances by Justice and EPA officials to the Senate last year. The toxic pollutants that will cause asthma and heart disease for our children and grandchildren is apparently of little interest to the Republican leadership of the Senate. That would be worthy of serious inquiry, debate and Senate action.

Last week the House passed by an overwhelming bipartisan margin the Advancing Justice through DNA Technology Act of 2003, H.R. 3214. This landmark legislation provides law enforcement with the training and equipment required to effectively, and accurately, fight crime in the 21st Century. More specifically, the bill would enact the President's DNA Initiative, which authorizes more than $1 billion over the next five years to eliminate the backlog crisis in the nation's crime labs, and to fund other DNA-related programs. It also includes the Innocence Protection Act, a death penalty reform effort I launched three years ago with Senators and Congressmen on both sides of the aisle.

The House vote was a major breakthrough in finding solutions to the flaws in our justice system. I understand that Republican Senators are now blocking action on the bill in the Senate. This bill is the result of extensive, exhaustive negotiations among Democratic and Republican leaders in the House and the Senate. It has broad support, both in the Congress and across the country and deserves the Senate's immediate attention and passage.

We have shown that the death penalty system is broken, we know that the reforms in this bill will help, and we know that every day we delay action may be another day on death row for some innocent people. These mistakes in our system of justice carry a high personal and social price. They undermine the public's confidence in our judicial system, they produce unbearable anguish for innocent people and their families and for the victims of these crimes, and they compromise public safety because for every wrongly convicted person, there is a real criminal who may still be roaming the streets. This matter is also being stalled by Senate Republican inaction.

The Senate has yet to take up the Anthrax Victims Fund Fairness Act of 2003, S. 1740, which Senator Daschle and I introduced with a number of other Senators because we are concerned that the citizens harmed by the anthrax letters addressed to Senator Daschle and to me in October 2001 are the forgotten victims of the aftermath of September 11. They, too, should have access to the Victim Compensation Fund. The Senate has yet to consider the September 11th Victim Compensation Fund Extension Act, S. 1602, which must be passed before we adjourn or hundreds of families who suffered on 9/11 will likely be left out in the cold without the compensation Congress and the American people intended to provide. Nothing will take away the pain and loss of September 11 and its aftermath for the victims but we owe them the Senate's attention before we adjourn.

New rules for Republican nominees: Rather than consider those important matters, why would the Republican leadership insist on rehashing the debate on the handful of judicial nominees on which further Senate action is unlikely? When they were considering the judicial nominees of a Democratic President in the years 1995 through 2000, they showed no concern about stranding more than 60 of President

Clinton's judicial nominations without hearings or votes. They did not demand an up or down vote on every nominee but were content to use anonymous holds to scuttle scores of qualified nominees. Indeed, they stood cavalierly by while vacancies rose from 65 in January 1995 to 110 when Democrats assumed Senate leadership in the summer of 2001. They presided over the doubling of circuit court vacancies from 16 to 33 during that time.

Indeed, the Republican leader at that time famously came to the Senate floor to defiantly declare that the Senate had confirmed too many of President Clinton's judicial nominees as far as he was concerned. That was when the Senate was considering less than half as many judicial nominees and had more than twice as many judicial vacancies as there are today. During those days the Republican leader said he only had one regret, one apology regarding his obstruction of President Clinton's judicial nominees: ``I probably moved too many already.'' Four years ago, toward the end of the third year of President Clinton's term, a year in which only 34 judges were confirmed, the Republican leader left no doubt that Republicans and the Republican leadership were unrepentant about their delays and obstruction of scores of qualified judicial nominees when he proclaimed: ``Getting more federal judges is not what I came here to do.'' That Republican leader would not schedule votes on President Clinton's judicial nominees when vacancies were much higher and growing in the summer of 2000 and, ironically, sought to use appropriations bills as an excuse. The Senator from Mississippi said: ``[S]pending bills must move first. . . . . Until we get 12 appropriations bills done, there is no way any judge, of any kind, or any stripe, will be confirmed.'' Of course, now the Republican caucus shows little interest in completing the Senate's work on appropriation bills, even though we are no longer in the summer but four months later in the year, well past the deadline and already into the next fiscal year without having even had the Senate initially consider these fundamental legislative matters. As I have noted, just last evening the Republican leadership rebuffed Democratic efforts to complete action on appropriations for our veterans, which could have been done in two hours.

In those years, the Republican chair of the Senate Judiciary Committee repeatedly argued that 67 vacancies in the federal judiciary was ``full employment'' as far as he was concerned. He wrote in USA Today in September 1997, when there were more than 100 judicial vacancies, that there was no judicial vacancy crisis and that the 742 active judges were sufficient. Over the last three years, Democrats have cooperated in confirming 168 judges nominated by this President, including 68 this year; we have reduced judicial vacancies on an expanded federal judiciary to 40; and we have 837 active judges, the most in U.S. history. We have 40 percent fewer vacancies than what Republicans used to call ``full employment'' for the federal judiciary and almost 100 more active judges than just a few years ago when Republicans were content to delay and obstruct President Clinton's nominees and argue that there was no problem.

So why do Republican partisans insist that the Senate now devote its time to rehashing the debate on some of this President's most controversial nominees to the independent federal judiciary? Is it merely coincidence that the Republican leadership has chosen to schedule these proceedings for the week of the Federalist Society's National Convention in Washington? Perhaps this is to give Republicans the opportunity to preen and posture while such an important segment of their base activists are in town. Perhaps it is to give the Republican leadership another chance to make false arguments about judicial nominations. Perhaps it is to give some a platform for baseless and McCarthyite accusations against Democratic Senators. Or perhaps it is to distract from the real concerns that affect Americans every day. Newspapers this week report that this exercise is precipitated because of a ``brewing rebellion by conservative activists.'' Reportedly partisan diehards ``are accusing the Senate GOP leaders of going too easy'' and apparently when Republicans appear on conservative radio talk shows ``they are often barraged with questions'' about why the GOP is not successfully ramming every judicial nominee through the Senate that they control. Apparently this dissatisfaction has even begun to affect Republican fundraising and, according to the Washington Post, ``a recent mailing [by a conservative group] to raise money for candidates yielded empty envelopes'' from those who had formerly contributed. Let us hope that this is not the real reason for this grandstanding. Let us hope that when something begins to affect Republican fundraising, it is elevated to the top of the agenda--the public, the responsibilities of the Senate be dashed.

Mr. President, 168 nominees have been confirmed. If the Republican leadership has staged this vote in order to try to persuade the American people that Democrats are obstructing the President's judicial nominees, they are going to have to stray far from the facts, because the facts show that the Senate has made dramatic progress on judicial vacancies when and where the Administration has been willing to work with the Senate. Indeed, last week the Senate confirmed the 168th of this President's judicial nominees 100 of them, confirmed by the previous Democratic-controlled Senate, in just 17 months. We could confirm several more if the Republican leadership would just schedule the votes. There are other nominees who were reported unanimously by the Judiciary Committee and are just waiting to be confirmed. The number of confirmations could easily total 170 or more if the Republican leadership were truly interested in filling vacancies. Of course, more progress might undercut the partisan message that some are trying to peddle. Maybe that is why for weeks at a time the Republican leadership in the Senate has repeatedly refused to schedule votes on judicial nominees who will be approved, and have chosen is choosing, instead, to focus on the handful of the President's most extreme and divisive nominees.

The truth is that in less than three years' time, the number of President Bush's judicial nominees the Senate has confirmed has exceeded the number of judicial nominees confirmed for President Reagan, the ``all time champ'' at getting Federal judges confirmed, in all 4 years of his first term in office. A handful of the most extreme and controversial nominations have been denied consent by this Senate in the proper exercise of its duties under the rules. Only four. One- hundred-sixty-eight to four. That is in stark contrast to the more than 60 judicial nominees from President Clinton who were blocked by a Republican-led Senate.

McCarthyite smears: If this show is being staged to give some a platform for repulsive smears that Democrats are opposing nominees because of their religion, Republicans will have entered a realm of demagoguery, repeating false allegations and innuendo often enough to hope that some of their mud will stick.

Before they do that again, I would refer them to what the distinguished Senator from Louisiana, Ms. Landrieu, said this morning, because if this was not almost ridiculously contrary to the facts, there is one part in this whole debate that should be troublesome to both Republican and Democratic Senators, and that is the religious McCarthyism that has crept into this debate. The distinguished predecessor of mine, Ralph Flanders of Vermont, stood up on this floor and brought a halt to a member of his own party, Senator Joseph McCarthy, because of the smears he was making, the unsubstantiated smears he was making on people. Now, some of my friends on the right and some of my friends in the Republican Party have been making this smear. They are saying if you are opposed to these people, you are anti-Catholic or anti-Christian. If it was not so hurtful it would be humorous.

I first heard this when a radio talk show said I was anti-family, anti-Catholic. On Sunday morning, they asked my press secretary about it. He said: The Senator did not hear it because he was at mass with his wife of 41 years.

We should not sink to something that we know is not so. Slanderous accusations have already been made by Republican Senators, and ads run by a group headed by the President's father's former White House counsel and

a group whose funding includes money raised by Republican Senators and even by the President's family when they falsely claimed that judicial nominees were being opposed because of their religion. These contentions are despicable and unfounded. Other Republican members of the Judiciary Committee and of the Senate have either stood mute in the face of these McCarthyite charges, or, worse, have fed the flames. Such accusations are harmful to the Senate and to the Nation and have no place in this debate or anywhere else.

Just a few weeks ago, President Bush rightly told the Prime Minister of Malaysia that his inflammatory remarks about religion were ``wrong and divisive.'' He should say the same to members of his own party. Today, Republican Senators have another chance to do what they have not yet done and what this Administration has not yet done: Disavow this campaign of division waged by those who would misuse religion, race and gender by playing wedge politics with it. I hope that the Republican leadership of the Senate will finally disavow the contention that any Senator is being motivated in any way by religious bigotry or for racial or gender-based reasons.

This week rumor is that the Republican public relations machine will be cranking overtime to try to make Democratic Senators appear anti- woman. Led by Senators Mikulski, Feinstein, Boxer, Murray, Landrieu, Lincoln, Cantwell, Clinton, and Stabenow, it is hard to see how Democrats can be subjected to such allegations with a straight face, but that is what the rumor is.

The facts are that under Democratic leadership, the Senate confirmed 100 judicial nominees, including 21 women, nominated by President Bush in just 17 months, including four to our Courts of Appeal. During the 107th Congress, President Bush nominated only 18 women to district court seats, out of 98 district court nominees (18 percent), and only 8 women to circuit courts out of 32 circuit court nominees (25 percent). This year Democrats have supported the confirmation of 12 additional women nominated to the Federal bench, including three to our Courts of Appeal. This President's nominees have included only one woman in each five judicial nominees. The 33 women judges confirmed represent 20 percent of the 168 judges confirmed.

By contrast, nearly one of every three of President Clinton's judges are women. Of course, the Republicans who controlled the Senate and the Judiciary Committee during the Clinton Administration also blocked 18 women nominated to Federal judgeships by President Clinton. Women who were blocked from getting Senate action on their judicial nominations include Kathleen McCree-Lewis, Elena Kagen, Elizabeth Gibson, Helen White, Christine Arguello, and Bonnie Campbell, all of whom were nominated to the circuit courts. These six outstanding women lawyers were not extreme or ideologues. They were outstandingly qualified women lawyers whose nominations were blocked anonymously by Republican Senators, without explanation, without a vote, without accountability.

Records of activism: On important issues to the American people--the environment, voting rights, women's rights, gay rights, Federalism, privacy rights, equal rights, civil rights and more--too many of this President's nominees have records of activism and advocacy. That is their right as American citizens, but that does not make them qualified to be judges. As a judge it would be their duty to impartially hear and weigh the evidence and to impart just and fair decisions to all who come before the court. In their hands, we entrust to the judges in our independent Federal judiciary the rights that all of us are entitled to enjoy through our birthright as Americans.

The President has said he is against what he calls ``judicial activism.'' How ironic, then, that he has chosen several of the most committed and opinionated judicial activists ever to be nominated to our courts.

The question posed by his controversial nominations is not whether they are skilled and capable advocates. The question is whether--not for a 2 year term, or a 6 year term, but for a lifetime--they would be fair and impartial judges. Could every person whose rights or whose life, liberty or livelihood were at issue before their courts, have faith in being fairly heard? The President has chosen to divide the American people and the Senate with his highly controversial nominations. If Republicans want to clean the slate and start fresh, we should do so with nominees who unite the American people, nominees who can be supported by a strong bipartisan majority in the Senate.

We are also hearing the claim by Republicans that the filibuster of a judicial nomination in unprecedented. Republicans themselves filibustered the nominations of Judge Richard Paez and Marsha Berzon as recently as 2000. They previously filibustered the nominations of Judge Rosemary Barkett and Judge H. Lee Sarokin. Of course, while in the majority, Republicans took full advantage of the secret hold and of their control of the agenda to prevent a vote on 63 nominations by not scheduling hearings and votes on them. Many of those now claiming that Senate filibusters are unprecedented participated in them and voted against cloture just a few years ago.

Indeed, as the Senate's own website notes in an articled entitled ``Filibuster Derails Supreme Court Appointment,'' the 1968 nomination of Abe Fortas to be Chief Justice was filibustered with the help of Republicans: ``Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.'' The attempt at cloture on the Fortas nomination was rejected by the Senate.

In addition, Republican Senators turned the filibuster of President Clinton's nominees and of legislation into a destructive art form. A nomination to be Surgeon General, Dr. Henry Foster, was defeated by a Republican filibuster, ambassadorial nominations were filibustered and bill and bill was filibustered as Republicans obstructed the work of the Senate and the legislative agenda. For Republicans to claim foul now, after their use of the filibuster tactic, may earn them the political equivalent of an Oscar, Tony or Grammy.

For 3 years I have asked the President and Senate Republicans to join with us to fill the vacancies on the Federal courts with qualified, fair, nonideological judges. Democrats have bent over backwards to support a record number of nominees. When the White House will work with all Senators, we have been able to identify and confirm judges quickly and by consensus. When the President has chosen to select ideological activists and try to pack the courts, we have opposed a handful of his most extreme nominees.

The Federal courts should not be an arm of the Republican Party, nor should they be an arm of the Democratic Party. The Senate should continue to honor its constitutional responsibilities to this third branch of our Federal government and to the American people whose rights are protected by our Federal courts. No President, with or without the complicity of any current majority in the Senate, can be allowed to relegate the Senate to the role of rubber stamp.

Regular order, Madam President.

Then I ask for 1 additional minute on our side.

Mr. President, I thank the Senator from Delaware for what he said. He has a distinguished record in the other body, as Governor and now here. We listened to him in this Chamber. I wish they would listen to him on the other end of Pennsylvania Avenue

because the person who makes the nominations is the President. I have been here with six Presidents. I have never known a time when a President is less willing to engage the Senate in advise and consent. President Ford did, President Carter did, President Reagan did, former President Bush did, and President Clinton did. I hope this White House would begin to do that also.

Interestingly enough, today I was given a petition signed by 310,000 Americans from all over the country. This petition supports a filibuster of extreme judicial nominees of the President. In fact, in the last 72 hours, 172,000 Americans signed these petitions. I went through them, thanks to the ability to search electronically, and picked out some from my State of Vermont.

In Moretown, VT, someone wrote:

It is a disgrace how this administration is attempting to

pack our Federal courts with right-wing extremist judges that

seek to undermine the hard-fought pillars of legal precedent

that reflect the values of a vast majority of Americans. I

wholeheartedly support the efforts of the Senate Judiciary

Committee Democrats to oppose this blatant abuse of the

majority power. . . . The Senate GOP leadership should be

ashamed of wasting precious legislative time to engage in

what amounts to a publicity stunt. . . ..

Shame on them. They don't deserve the seats that the people

have entrusted in them.

Moretown, VT, is a little town a few miles away from where I live. It is straight down the valley; you can look straight down the valley from the front lawn of my home. We used to go to mass there on Sunday. It is where one of my grandmothers was born. So I was pleased to see that.

I received this petition from West Townshend, VT:

Thank you very much for all your hard work and valuable

work. We appreciate it.

West Townshend is a very small town in Vermont. People are very independent there.

This one is from South Burlington, VT:

I support any measure to prevent Bush's extreme judicial

appointments. Keep up the good work.

This is from Barre, VT:

Please be strong and stand against the Republicans.

Ashcroft has already taken away too many of our civil

liberties; we cannot have judges doing the same.

Barre, VT, is considered the granite center of the world,

with the largest granite quarries in the world. My

grandfather, Patrick J. Leahy, was a stonecutter in Barre,

VT. My father was born in Barre, VT. The people of Barre, VT,

are as strong and independent as the beautiful granite in

their quarry.

I have one from South Ryegate, VT:

You must protect the cherished rights of women to control

their own bodies. Do not approve judges whose records show

that they do not believe in women's rights.

South Ryegate, VT, is a beautiful little town on the eastern side of Vermont. I know it well. When my maternal grandparents immigrated to this country from Italy, not speaking a word of English, they came to South Ryegate, VT, where my Italian grandfather was also a stonecutter. My mother, a first-generation American, was born there, her first language was Italian, but she learned English at school. I remember my grandfather, so proud of the judicial and constitutional system of this country, and so proud of taking the oath of citizenship. My father, in Barre, VT, was so proud of the separation of powers in this country-- the legislative branch, an independent branch of Government, equal to the other two; the executive branch, independent and equal to the other two; and the judicial branch, independent and equal to the other two.

I remember him sitting in the gallery when I was first sworn in as a Senator, knowing I was part of that triumvirate of powers in this country, which is why our democracy has lasted this long. But throughout it all, it was so important that one branch was outside of politics, that one was independent of either of the political parties, and that is the judiciary. It should not be a Democratic judiciary or a Republican judiciary.

The battle we are having now is because this White House does not want it to be an independent judiciary. They want it to be the most extreme possible. They want it to be an arm of the Republican Party.

One hundred sixty-eight to four. We have confirmed 168 of President Bush's nominees. We stopped four of the most extreme. Lordy, the crocodile tears that have been shed here, at great cost to the American taxpayers, over the last 24 hours--the crocodile tears that have been shed for that.

I do not remember one single Republican standing on the floor and saying how terrible it was when the Republicans blocked 63 of President Clinton's nominees, but, oh, my, it is like Niagara Falls, the crocodile tears, when we blocked four of theirs.

I received another one from Burlington, VT:

The courts need to represent all Americans. Keep extremists

out. Thank you for fighting for representation of all

Americans by blocking the extremist judge nominees. Shame on

President Bush.

I mention Burlington because I was married there 41 years ago. I still vote there. My children were raised there. I know the people in Burlington, VT. They are independent, good people--people who care for an independent, not a political, judiciary.

Little Hardwick, VT, stands at that junction between Montpelier and St. Johns and Barre. They say:

Stay awake. Stay vigilant. Protect civil rights, a woman's

right to choose, public education and worker's rights. We

stand with you.

Hardwick, VT, let me tell you, I stand with you, and I will stay awake and be vigilant. The people on this side of the aisle will stay vigilant and we will protect an independent judiciary. We will not allow the judiciary to be an arm of any political party.

The President said that he wanted to be a uniter and not a divider. Oh, how much I wish he were. If there was ever a time that this country needs a uniter, not a divider, it is right now. But, instead, in deference to groups on the far right, the President has nominated judicial activists about whom one cannot help but raise questions regarding their ability to act impartially, with justice for all. We need an independent judiciary.

We are fortunate in Vermont because we have the most independent Federal judges you can imagine--people with total integrity, who will treat whoever comes into their court with impartiality regardless of whether they are Republican or Democrat or independent. That is what all courts should do.

Time and time again, Democratic Senators have acted in good faith to fill vacancies Republicans kept vacant by blocking a Democratic President's judicial nominees. After Republicans blocked 63 of President Clinton's nominees, when a Republican President came in, they said: Look at all these vacancies. My God, we have to move as fast as we can to fill them. This is terrible. This is a crisis in the judiciary. How could this possibly have happened? How could this possibly have happened; there are 63 vacancies here. My Lord, the sky is falling down.

Where did those vacancies come from? They came from one person, one Republican, holding an anonymous filibuster. If one Republican said, I don't want this judge of President Clinton's, the nominee went no further. Notwithstanding that, some of them had the highest qualifications this country has seen. Notwithstanding that, some of them were the most brilliant judges. Notwithstanding that, they were Hispanics, women, African Americans, people of faith, and people of great conscience. They were not allowed to go forward because one member of the Republican Party said he or she did not want them to go forward. But notwithstanding that the Republicans created all those vacancies, notwithstanding that, the Democrats said, we will help you fill them.

Notwithstanding the arrogance and the one-person filibusters on the other side, the Democrats started filling those vacancies with President Bush's nominees. We have filled 168 vacancies. We stopped four of the most extreme nominees. And now, lordy, lordy, lordy, the Niagara Falls of tears comes from the other side--crocodile tears, hypocritical tears, from those who said not a word, not a word when they blocked 63. Not a word. Not a word. They blocked 63. Not a word. We stopped four of the most extreme, and you would think the world was coming to an end.

What Democrats have done is that we have stood up for our principles and for the independence of the Senate in its constitutional role in the judicial confirmation process. The Republican leadership has decided to spend, I am

told, upwards of a quarter of a million dollars of the taxpayers' money to have this debate. I apologize for that. I am not the one who wanted to do this. I apologize to all the staff--the police officers, who should be home with their families, the doorkeepers, those who keep the journal of these proceedings--who are some of the finest men and women I have worked with in nearly 30 years here.

But that quarter of a million dollars the Republican leadership is spending on this charade of crocodile tears could almost be worth it if one thing comes out of it. If the President would realize that this whole process begins with him, not with the Senate. The President has an absolute right to nominate anybody he wants. The Senate has an absolute right to advise and consent, to determine whether nominees are confirmed, especially to lifetime jobs.

I ask him once again, work with the Senate. Every President through history has sought the Senate's advice and consent. In those instances when they did not, they did not get their way. There was another President named George, the greatest President in this Nation's history, George Washington. He was the most popular man in America in the time he lived and probably the most popular person America has ever had. He was a man who brought us together as a country, who set the precedent to make this a great democracy. But George Washington nominated judges the Senate felt he should not have. The Senate exercised its constitutional authority, and not all of George Washington's judicial or executive branch nominees were confirmed. President Washington knew he had to come back and seek the Senate's advice and consent before his nominees would go through.

A great hero of mine, not just because I am a Democrat but because I remember what he meant to people like my parents, who owned a small business in Montpelier, VT, was Franklin Delano Roosevelt, also one of the greatest Presidents to ever serve this country. He kept this country together, kept the world together at the time of naziism and fascism, and the Japanese attack on Pearl Harbor. He brought us out of a recession, and he did this even though he was physically crippled. He worked so hard for this country, it finally killed him. But even Franklin Delano Roosevelt, when he tried to pack the court and change the independence of our Federal judiciary, a Democratic-controlled Senate said he could not do that. In fact, not only did Franklin Delano Roosevelt not get every one of his judges confirmed, but his court packing plan was filibustered.

No matter how partisan anybody is here, I don't think anybody is going to suggest the problems began here. The Senate said no to Washington. The Senate said no to Franklin Roosevelt. The Senate can say no to George Bush. Tradition is there. The Constitution is there. Our rights are there.

Basically, we have taken all this time spending a quarter of a million dollars of the taxpayers' money to talk about this because we don't want to vote on minimum wage, or workman's compensation, child programs, or the appropriations bills that, by law, we are required to have voted on by September 30. We still haven't. We don't want to vote on veterans benefits even though the administration seems hellbent on cutting veterans benefits.

We don't want to do any of those things. We will spend a quarter of a million tax dollars on the Republican's charade. I say the same thing today that the Senate said to George Washington and said to Franklin Roosevelt: We are going to ask for advice and consent. The Senate is going to stand up for its rights. I yield the floor.

Mr. President, let me say this. Again, I have been here with six Presidents, Republican and Democrat. Presidents have always sought advice and consent. They have not always liked what they have heard. Five of the six Presidents have been willing to work with us on judicial nominations: Presidents Ford, Carter, Reagan, former President Bush, and President Clinton. I urge the current President to follow their example. Things will go far more smoothly. I do yield the remainder of my time.

Will the Senator yield for a question?

Mr. President, the distinguished Senator from New Mexico had an exemplary career as attorney general of New Mexico and, obviously, is in a position probably to know more about the bar of New Mexico than anyone else in his State; and his service replicates that of other Senators on both sides of the aisle from their representing their States.

My question is this: The traditions of the Senate mean so much, and most of them are there for a reason. The tradition of having to get clearance from home State Senators--and, of course, every State is equal in the Senate. But Federal judges have an enormous impact on the States. The tradition has always been that the home State Senators have the best idea who the Federal judge is who is going to be making decisions that affect the men and women of that State. This has not always been perfect, but has it been the experience--I ask this of my friend and former attorney general of his State, a Senator of great respect and competence--has it been his experience that in the main, very much in the main, this has worked extremely well?

Mr. President, I am glad to see my friend from South Carolina used a tiny part of a quote of mine. I am always glad when somebody quotes me, even when they don't do it accurately.

What I was referring to, if you look at the quote, was the one-person filibusters of 63 of President Clinton's nominees, where one person, one Republican, usually anonymously, would object to President Clinton's nominees and then those nominees would never get a vote at all. Those were filibusters by one person done anonymously, not in the open.

Here, of course, unlike what was done to President Clinton, the Democrats have cooperated to make sure that 168 of President Bush's nominees to the Federal judiciary have gone through and only 4 have not. We can see only 4 have been blocked. We have confirmed 168 and only blocked 4. That contrasts to the 63 anonymous filibusters done

by the Republicans--63 done by the Republicans when they were in charge.

As I walked over this morning, I thought: Finally, the Republican leadership is bringing to a conclusion three really ``Alice in Wonderland'' kind of days, really wasted days in the history of the Senate. During those days, as much as the Republican leadership wanted to waste the Senate's time, at a cost of hundreds of thousands of tax dollars, I am proud of our Democratic Senators who had to endure endless criticism for objecting to a handful of the President's most extreme, controversial, and divisive nominees.

What they have tried to do is get the Senate's attention back on the unfinished legislative business of this session that is of such concern to the lives of so many Americans. As I said, we have cooperated in the confirmation of 168 of this President's judicial nominees. We confirmed 100 in the 17 months I was chairman and confirmed another 68 in the 17 months my distinguished colleague from Utah was chairman. I am not going to criticize him that he didn't get as many confirmed as I did, but there are the numbers, 168 to 4. That is more judges than President Reagan, the ``all-time champ,'' appointed his entire first term in office when he had a Republican majority. So in less than three years, we have already eclipsed President Reagan's four year total.

Among the 168 confirmations are more circuit court confirmations than for any of the last three Presidents at this stage in their first terms. The scorecard is 168 to 4.

After this week, the total of those blocked could increase by two, but the number of confirmations will not have been increased. Rather than work with all Senators to confirm those nominees who can be confirmed after a vote or who may be confirmed after a reasonable debate and a vote, the Republican leadership has remained fixated on the most controversial and most divisive nominees.

During this 40-hour talkathon, the Republican leadership of the Senate has taken what could have been productive days at the end of this year's legislative session and decided to abandon work on the real priorities of the American people. I understand that the reason they have been spending so much of the taxpayers' dollars in doing this talkathon is that some of the Republican campaign committees have tried to use this to raise money. If they are, instead of charging the taxpayers for this, I wish they would do it themselves.

But what we have are our friends on the other side engaging in repetitive speeches about promoting a small handful of controversial nominees to lifetime positions as Federal judges. These are people who already have good well-paying jobs. They do not want to talk about the legislation that might help the more than 3 million Americans who have lost their jobs since President Bush assumed office.

Unlike President Clinton's term, where a million new jobs were created every year, in the 3 years of President Bush's term, 3 million jobs have been lost, but they do not want to talk about that.

The Republican leadership has already overshot the Senate's adjournment date by more than a month. We have already had to enact three continuing resolutions just to keep the Federal Government going because we have not passed our appropriations bills. The law says we have to enact our 13 appropriations bills by the end of September. The Republican Congress has enacted only 5 of the total 13. They ignore the law on that, but then they waste this time and hundreds of thousands of taxpayer dollars to have a campaign talkathon.

They do not want to vote on the appropriations bills and, instead, they want to waste time on this? They want to waste time giving lifetime jobs to three or four people but they do not want to do anything about the 3 million Americans who are out of jobs.

Here is what they are not talking about, here are the issues that are not being voted on, here are the bills that the Republican leadership will not bring up: Funds that go to improve our schools. Funds that NIH uses to advance our medical knowledge in fighting disease and illness. The resources used by EPA to enforce our clean air and water laws. They do not want to bring up appropriations for our veterans and for law enforcement. These are things that all people should be able to agree on, Republicans and Democrats, but we are told there is no time to bring up money for our law enforcement or for our veterans.

In fact, during the first evening of this exercise in the wind chambers, the senior Senator from West Virginia was trying to get the Senate to do its work. Senator Byrd, as the ranking Democrat on the Appropriations Committee, urged the Senate to complete its work on the appropriations bills that fund services for our military veterans. He said, Why do we not finish this? This administration has cut money for veterans benefits. It has cut money for veterans hospitals. It has cut money for disabled veterans. He said, Can we not at least take a couple of hours more--if you are going to spend 40 or so hours talking about four judges, can we do something, can we take 2 more hours to finish the bill that will affect millions of America's veterans?

He said we could do it in 2 hours. The Republican leadership objected. Those few minutes at the beginning of this debate may be the most telling of this entire so-called debate. Republicans chose to sacrifice the work of the Senate, the priorities of the American people and the interests of American veterans so they could pull a partisan political stunt.

In one of their many press conferences on this diversion, on November 6, the Republican leader committed to ``complete the appropriations process'' before beginning this charade. Even the junior Senator from Pennsylvania agreed with him and said: ``The leader's right. What we are about to embark in next week, after the appropriations process has run its course, is to enter into a debate. . . .'' Well, when given the chance to honor that commitment, the Republican caucus chose partisan theater over the work of the Senate.

We said can you not take 2 hours out of these 40 hours to at least do the appropriations bill for our veterans? I mean, you are not going to do the appropriations bills for our law enforcement. You are not going to do it for medical research. You are not going to do it for anything else. If you could just take 2 hours out of this, at a time when we are creating a lot more veterans, many of them horribly disabled and disfigured from the war in Iraq, we are told, no. We do not have 2 hours for that.

There is the unfinished business of the Nation's unemployment and lack of job opportunities that confound so many American families. With millions of Americans having lost their jobs in the last three years, the Republican Senate has, instead, insisting on spending these final days of this session on a handful of highly controversial judicial nominations that divide the Senate and the American people and ignoring the needs of the almost 10 million Americans who are out of work, including those more than three million Americans who have lost their jobs since President Bush took office.

Instead of working together on such important matters, we are being forced to repeat another cloture vote on the nomination of Priscilla Owen. The Senate has voted three times on this nomination, and three times, the Senate has decided against granting consent. Her nomination had been fairly and thoroughly considered by the Judiciary Committee last year, and her nomination was rejected on the merits. Never before has a President renominated a judicial nominee who was rejected on the merits by the Judiciary Committee.

She has shown herself to be a judicial activist and an extremist even on the very conservative Texas Supreme Court where her conservative colleagues have criticized her judging. All that has occurred since the cloture votes during the spring and summer is that Republican partisans have ratcheted up their name calling and Justice Owen has been made to serve as a political prop for the White House.

In fact, I commend to my colleagues an insightful article by David Margolick that appeared recently in Vanity Fair magazine entitled ``Bush Scored Advantage.''

The second in this series of votes is to be on Judge Carolyn Kuhl. This nomination to the 9th Circuit has been opposed by both the home- state Senators from California and for good reason. From her days seeking to change

federal policy and provide tax breaks to Bob Jones University, to her efforts to overturn Roe v. Wade, to her recent decisions seeking to excuse the invasions of the privacy of Ms. Sanchez-Scott, a breast cancer survivor, Carolyn Kuhl has been extreme.

Finally, the Senate will be required to vote in relation to a nomination that has been whisked through the Judiciary Committee in the last several days, that of Janice R. Brown. This controversial nomination is opposed by the Congressional Black Caucus, the National Bar Association, the California Association of Black Lawyers and a long list of African-American and civil rights leaders and organizations. Former Senator and former ambassador Carol Moseley Braun has recently written to us opposing this nomination. I ask that her November 12 letter be made part of the Record.

The San Francisco Chronicle and the Washington Post editorialize against her as an example of the Bush Administration's efforts to pack the circuit courts with ideologues. In her decisions and her writings and speeches she has shown herself to be a consummate judicial activist who will disregard precedent when convenient to her ends. Her view of government is not consistent with the work of the D.C. Circuit in reviewing the environmental protections, workplace protections, consumer protections and other government regulations authorized by Congress to protect all Americans.

The obvious intent of these stacked votes is a partisan effort to paint opposition Senators as anti-woman. Women know better. Women leaders, women's rights organizations have opposed these nominations. I know the Republican partisan public relations machine will be cranking overtime to say we are anti-woman. Given that we are being led by Senator Barbara Mikulski, Senator Dianne Feinstein, Senator Barbara Boxer, Senator Patty Murray, Senator Mary Landrieu, Senator Blanche Lincoln, Senator Maria Cantwell, Senator Hillary Clinton, and Senator Debbie Stabenow, it is hard to see how Democrats can be subjected to such allegations with a straight face. I mean, tell them that they are anti-woman. These are all women who have the finest records of defending, upholding, and advancing women's rights. It is crazy.

When we were in charge, the Senate confirmed 100 of President Bush's judicial nominees, including 21 women, in just 17 months. They included 4 women to our Courts of Appeal. During the 107th Congress, President Bush nominated only 18 women to district court seats out of 98 district court nominees,

or 18 percent, and only 8 women to circuit courts out of 32 circuit court nominees, or 25 percent. Well, this year, Democrats have supported the confirmation of 12 additional women nominated to the Federal bench, including 3 more to our Courts of Appeal. The thirty- three women judges confirmed represent 20 percent of the 168 judges confirmed so far.

Perhaps, though, they are a little bit nervous about this. President Bush has nominated far fewer women to the Federal bench than President Clinton did. This President's nominees have included only one woman in each five judicial nominees. By contrast, nearly one of every three of President Clinton's judges are women. Of course, the Republicans who controlled the Senate and the Judiciary Committee during the Clinton administration also blocked 18 women nominated to Federal judgeships by President Clinton. They did it by their one-person anonymous filibuster. Do not give me this baloney that, oh, it is so terrible that we are standing out here in open session blocking four judges. They blocked 63 by anonymous filibuster, 18 of them women. The women who were blocked from getting Senate action on their judicial nominations by the Republicans include Kathleen McCree Lewis, Elena Kagan, Elizabeth Gibson, Helene White, Christine Arguello, Bonnie Campbell--all of whom were nominated to the circuit courts. Now, these six outstanding women lawyers and judges were not extreme or ideologues. They were blocked anonymously by Republican Senators. This was done without any explanation. This was done without a vote of any kind. We never had a debate on them.

These other judges, the 4 out of 168 of President Bush's who have been confirmed, at least there was a debate on them. We discussed the merits of their nominations. The 63 of President Clinton's nominees who were blocked by the Republican majority would have liked to have at least had a hearing or debate on the merits of their nominations. There was no debate. Nobody wanted to come to the floor and talk about them, not when they could do a one-person filibuster, and do it anonymously so the press in their hometown would never know who was holding them up, including some of the Senators from the States where they were nominated. They could do this anonymously, and they could do it in a way that they would never have their fingerprints on it.

Now, I have heard more crocodile tears shed on this Senate floor this week than I have heard in my 29 years. Why? Because 4 judges of President Bush's were stopped, out of 168 who were confirmed. He has had less nominees stopped than any President I can remember since I have served in the Senate.

I yield the floor.

(At the request of Mr. Dashle, the following statement was ordered to be printed in the Record.)

How much time is available to the Senator from Vermont?

I obviously will not take that time.

Again, in 29 years here, I have been accustomed to some hyperbole and some interesting changes of statistics and even quotes. I have great respect for my dear friend from Utah, but, man, he has hit the trifecta of the hyperbole in the out-of-context quotes.

Of course, what he does not point out, when I spoke of filibusters on this floor, I was talking about the one-person anonymous hold filibuster on Sonia Sotomayor. It was only after a public outcry that she was allowed a vote and she had overwhelming support in this body-- not somebody who was almost 50-50 or 52-48, she had overwhelming support. But she was not allowed to get a vote. And even that took 2 years of putting her life on hold. Editorial writers from the right to the left said: Give this woman a vote. This was a consensus candidate.

We hear about all the ones who got votes. For some reason, there seems to be a reluctance by my friends on the other side to talk about the 63 who were never allowed votes. They were

blocked because one Republican would anonymously say no.

I don't find the record of cooperation during the Clinton years to be anything to brag about. Sixty-three fine men and women were blocked and never given a vote. In fact, when President Bush took office, there was an unprecedented number of vacancies in a lot of the circuits. Why? As testimony before our committee showed, because the nominees were told by Republican Senators: We think you are great. We think you would make a good judge. But we have been told we are not allowed to move you forward, we are not allowed to give you a vote. We are not allowed to give you a hearing because someday there will be a Republican President and he will want to fill those vacancies.

Notwithstanding that, when I was chairman, even though it pained me to do it, I allowed those vacancies to be filled by President Reagan's nominees, by President Bush's nominees, even though in testimony before our committee the nominees said they were told by Republicans they would never be allowed to have a vote.

I don't hear the other side talk about the 63 who were given a one- person filibuster, anonymously, whether they were judges from Pennsylvania, Ohio, Missouri, Michigan, or elsewhere. They were blocked by these one-person anonymous holds. Sometimes it was not too difficult to realize who the hold was because it was usually from their own State.

Of course, there were many others. As the distinguished Senator from Utah has said in his own writings, the Democratic President would consult with him on different people and he would tell them no, do not even send this one up, they will not get a vote. So they never came forward. I guess on inaugural day that consultation stopped.

We have confirmed 168 and held back 4. Is anyone going to tell me with a straight face that in the Bush administration, with all the promises they have made to the far right, there are not a whole lot of pro-life judges in here? Of course there are. Many have been very clear, saying they were pro-life, but I voted for them because I believed they could be fair, they would be judicious, they would follow the law, they would follow the precedence and not their personal inclinations.

When I hear of the crocodile tears about Ms. Kuhl, saying she was a young person writing a memo for the Reagan administration, do not hold that against her--come on. She was not only writing a memo, she was a spear carrier for Bob Jones University.

Now I know Bob Jones University is kind of a pet of the other side, but this is a university where the founder and philosophies are anti- Catholic, anti-Mormon, anti-Black. Yet we are supposed to say, forget the fact she was anti-Catholic, anti-Mormon, anti-Black in her support of this, she was only doing her job. She was only doing her job.

A lawyer has a right to follow their conscience. If a lawyer has a client and says: Go out there and take a position that really should not be sustained--in this case, a position on Bob Jones University--you ought to say: No, I quit. I quit. We have seen many instances of that in the past.

Not counting the time for the leader, how much time remains to the Senator from Vermont?

I yield 10 minutes to the distinguished Senator from California.

Will the Senator yield?

In other words, under this ruling, if the doctor had invited his auto mechanic because he might like to watch breast exams, put him in a white coat, it would be the patient's fault for saying: By the way, is this another doctor? Is this your auto mechanic?

Frankly, I would hope I could say to my wife or my daughters, there would be a right of privacy issue here. For those who say there is no privacy in a case such as this, they have never been in a doctor's office for an examination.

I yield back to the Senator from California.

Mr. President, what is the time remaining?

Well, and there is time reserved for the two leaders?

Mr. President, over these past 24 hours, the American public has heard a lot of what one could generously describe as wishful thinking from the other side of the aisle about the history of the Senate in considering nominations, especially recent history of Republican obstruction when a Democrat was in the White House. Their efforts to re-write American history and the history of this Senate remind me of the old Soviet Union, re-writing its history books to suit the ruling party and erasing photos that would reveal inconvenient facts. Their misleading and wrong assertions have been made over and over and over again, perhaps in the hope that repetition would turn those falsehoods into fact. I think it is important for posterity to set the record straight.

Last night, echoing Republican press conference, Republicans took to the floor to claim that no judicial nominee had ever been filibustered or blocked from getting a confirmation vote in the history of the Senate. They made these assertions repeatedly while pointing to signs with the number zero printed on them. They refused to acknowledge that any judicial nominee has ever been filibustered, that any has ever been denied a confirmation vote, that any nominee for even a short-term position has ever been filibustered on the floor or filibustered in Committee. The repeated the party line from GOPUSA that ``no federal judicial nominee by the past 42 presidents has been filibustered in the history of the U.S. Senate dating back to 1784.'' I ask unanimous consent to place the following excerpt from the New York Times from 1968 into the Record about the filibuster in the Senate over the nomination of Justice Abe Fortas to be Chief Justice of the Supreme Court, a letter signed by more than 60 law professors from across the country in support of the use of the filibuster of judicial nominees, and an important and outstanding letter from Professor Michael Gerhardt which thoroughly addresses the specious arguments being made about the use of the filibuster under our Constitution. I hope that this evidence would cause some of my colleagues to reconsider some of the false and misleading statements made by my colleagues on the other side of the aisle. One can always hope.

I yield the floor.

Mr. President, I want to commend the Senators from California for their leadership in connection with this matter.

Today, the Senate is considering the nomination of California Judge Carolyn Kuhl to the U.S. Court of Appeals

for the Ninth Circuit. In accordance with Republican practices during the period 1995-2000, this nominee would have never come to the Judiciary Committee for a hearing in the first place and would never have been voted upon by the Judiciary Committee. This consideration on the Senate floor today underscores the President's refusal effectively to consult with the home-State Senators from California, both of whom oppose this nomination. In fact, this vote is the culmination of a year in which the President's disregard for home-State Senators and the Republican majority's disregard of past practices to achieve their partisan political objectives could not be more calculated.

Judge Kuhl's appearance before the Judiciary Committee, despite the clearly stated opposition of Senator Boxer, was only one in a string of transparently partisan actions taken by the Senate's Republican majority since the beginning of this Congress. In each of these actions, Republicans have done something they never did while in the majority from 1995 to 2000. Throughout the course of this year, they have continued to ratchet up their unprecedented partisanship and the use of judicial nominees for partisan political purposes.

The Republican majority took a step on the nomination of Judge Kuhl that was unprecedented for this Chairman. They scheduled a hearing for a nominee who did not have approval from both of her home-State Senators, a nominee for whom both blue slips were not returned positively. There is not a single example from 1995 through 2000, when the President was a Democratic President, and when Republican Senators were objecting, when the Judiciary Committee held a hearing on a judicial nominee over the objection of a home-state Senator.

Senate Republicans should remember that when the nomination of Ronnie White of Missouri was finally voted upon in 1999, all Republicans, in an unprecedented party-line vote, defeated that nomination. Several Republican Senators who had voted in favor of Justice White when he was considered by the Committee changed their positions and voted against his confirmation. The facts are that, at the time of his hearing, the senior Senator from Missouri supported the nomination and endorsed him at his hearing, and the junior Senator did not object to the hearing. Senator Ashcroft then chose to vote against the nomination. On the eve of the vote on the nomination, Senator Bond changed his position and decided to join Senator Ashcroft in opposing the nomination.

In connection with that vote, Senator Hatch said that if both home- State Senators had opposed the nomination earlier, it would never have proceeded. He told the Senate: ``[H]ad both home-State Senators been opposed to Judge White in committee, Judge White would never have come to the floor under our rules. I have to say, that would be true whether they are Democrat Senators or Republican Senators. That has just been the way the Judiciary Committee has been.''

The Ronnie White nomination is not an example of a previous time that the Committee and the Senate proceeded over the objections of home- state Senators. To the contrary, it is precisely the opposition, a clear precedent the other way.

While it is true that various Chairmen of the Judiciary Committee have used the blue-slip in different ways, some to maintain unfairness, and others to attempt to remedy it, it is also true that each of those Chairmen was consistent in his application of his own policy--that is, until the Kuhl hearing. That was the first time that this Chairman ever convened a hearing for a judicial nominee who did not have two blue slips acceding to a hearing.

This Republican President's choice of Carolyn Kuhl for a vacancy on the Ninth Circuit is a divisive and political choice. As a lawyer in the Reagan Administration, a lawyer in private practice, and as a state court judge, Judge Kuhl has demonstrated an extreme philosophy that threatens the rights and interests of Americans, particularly women's rights, other civil rights, and access to justice. Among other significant cases, Judge Kuhl spearheaded an effort to reverse the Reagan Administration's policy on tax-exempt status for racially discriminatory private schools, including Bob Jones University. She has also consistently advocated against women's rights and reproductive rights--from aggressively pushing the Justice Department to argue for a reversal of Roe v. Wade, to arguing for limits on the reach of sexual harassment laws, to rulings as a judge which raise concerns about her commitment to privacy rights.

This nomination has generated widespread opposition and requests that the Senate not consent to her confirmation. Among the many membership organizations that have written in opposition are: Seven members of the California Assembly Committee on the Judiciary, California Women Lawyers, the Japanese American Citizens League, the Leadership Conference on Civil Rights, People for the American Way, Planned Parenthood Federation of America, Taxpayers Against Fraud and many, many more.

I suspect we will hear these groups, and the others who oppose the President's nomination of Judge Kuhl, vilified as members of some left- wing conspiracy, intent on sinking each and every nominee, no matter what their views. But I would like to remind those who would raise that argument, as I have before, that these organizations represent millions of citizens with legitimate concerns about the direction of the judiciary in this country. I appreciate their willingness to participate in the process and their refusal to be intimidated into silence. The Washington Times has conceded that ``President Bush has seen more of his appeals court nominees confirmed by the Senate at this point in his term than any other president since at least the 1970s.'' When I was Chairman of the Judiciary Committee during the 107th Congress, the Senate confirmed 100 of this President's nominees. So far this year, the Senate has confirmed 68 additional judges nominated by President Bush. The Senate has now confirmed 168 of the Bush judicial nominees. That is more confirmations than in all of President Reagan's first term and more judges in one year than were confirmed during all of 2000, 1999, 1998, 1997, 1996 or 1995.

Among those 168 confirmations are 29 circuit judges. That is more circuit judges at this point in his presidency than were confirmed for President Reagan, President Bush or President Clinton. So far this year the Senate has confirmed 12 circuit court judges. In the comparable year of 1999, Republicans allowed only 7 circuit court judges to be confirmed all year.

Four of President Bush's nominees to the Ninth Circuit Court of Appeals have already been confirmed. Richard Clifton was given a hearing and confirmed under Democratic leadership. Just this year, the Senate has confirmed two additional Ninth Circuit nominees, one of whom, Jay Bybee, was quite controversial. Just before the Memorial Day recess, Democratic Senators expedited and encouraged the Majority Leader to allow a vote on the nomination of Judge Consuelo Maria Callahan, a consensus nominee with support from both home-State Senators. And, in September, Democratic Senators supported the nomination of Judge Carlos Bea, another nominee with support from both home-State Senators.

Unlike the divisive nomination of Judge Kuhl, both home-state Senators supported the nominations of Judge Callahan and Judge Bea. Rather than disregarding time-honored rules and Senate practices, my friends on the other side of the aisle should help us fill more judicial vacancies more quickly by bringing those nominations that have bipartisan support to the front of the line for Committee hearings and floor votes.

Republican Senators have been claiming that there have never been filibusters of nominees before and arguing that every nominee always gets a Senate up or down vote. That was certainly not the case for 63 of President Clinton's judicial nominees and for hundreds of his Executive Branch nominees. Such a claim is so contrary to history it is breathtaking in its boldness. On a single day in 2000, the Senate had to invoke cloture to stop Republican filibusters of the nominations of Judge Richard Paez and Marsha Berzon. Republicans also unsuccessfully filibustered Judge Rosemary Barkett and Judge H. Lee Sarokin in

1994. They successfully filibustered Executive Branch nominees such as ambassadorial nominees and the nomination of a Surgeon General, and the list goes on and on. I have spoken about them before.

This White House has been the most aggressive in recent history in its efforts to pack the federal courts and tilt it sharply toward a narrow ideology. The most extreme of the Administration's nominees are not being approved. We are seeking to maintain the independence of the Federal judiciary and to protect the rights of Americans in so doing. The Administration and its supporters have taken to using these nominations as partisan matters and to drive wedges between Americans. I have urged that the President be a uniter rather than a divider on this important lifetime nominations, but my voice has been ignored.

The provocative steps taken by the White House and Senate Republicans have broken new grounds in politicizing the Federal judiciary. The Republican majority has shown a corrosive and raw-edged willingness to change, bend and even break the very same rules that they took advantage of when the judicial nominees involved were a Democratic President's choices.

One of Carolyn Kuhl's most notorious decisions as a lawyer in the Reagan Justice Department is among her most troubling. As a political appointee serving directly under the Attorney General of the United States, she spearheaded an effort in the Reagan Administration to reverse position in the Bob Jones University case. This was the case challenging IRS rules denying tax-exempt status to schools that racially discriminate.

In 1981, the IRS rules were challenged by Bob Jones University, which wanted to keep avoiding their tax responsibilities despite a policy prohibited interracial dating. When the school took this issue to the Supreme Court in 1981, the Reagan Justice Department was prepared to defend the rules, as is its duty. But in January 1982, the government suddenly changed its position, and argued that the IRS had no legal authority to deny tax-exempt status and agreed to give Bob Jones, despite its blatant policies of racial discrimination, the tax exemption.

Then-Congressman Trent Lott, supported by Senator Strom Thurmond, was pivotal in the lobbying effort to change the government's position, and then-Special Assistant to the Attorney General Carolyn Kuhl concurred. This decision was so outrageous that more than 200 career lawyers in the Justice Department's Civil Rights Division objected to the change of position in a letter to their Assistant Attorney General.

According to records of Congressional hearings on the topic and a New York Times article written at the time, Carolyn Kuhl was one of three people characterized as ``a band of young zealots'' at work as political appointees at the Department of Justice, and part of the ``Bob Jones team'' who opposed the overwhelming sentiment and ``pressed for the legal switch to give Bob Jones its tax exemption.'' Indeed, Carolyn Kuhl and Charles Cooper, then-Special Assistant to Attorney General William French Smith, co-authored a 40-page memorandum to Civil Rights Division Head William Bradford Reynolds strenuously arguing that ``the [IRS] Commissioner's Ruling denying tax-exempt status to racially discriminatory private educational institutions is supported by neither the language nor the legislative history of Section 501(c)(3)'' and that the IRS should therefore ``reverse its position'' in the case and ``accord tax-exempt status'' to Bob Jones.

The Supreme Court, in an 8-1 ruling, repudiated Carolyn Kuhl's position and denied the school tax-exempt status. Chief Justice Warren Burger wrote for the majority, ``[a]n unbroken line of cases following Brown v. Board of Education establishes beyond doubt this Court's view that racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals.''

It is interesting to note that the reason we know so much about Judge Kuhl's advocacy on behalf of schools like Bob Jones is because of internal Justice Department documents turned over to the Senate Finance Committee in February of 1982. At that time, in the wake of the Reagan Administration's switch in position, the Committee held a hearing to consider a legislative fix to the problem. A number of Justice Department memoranda as well as communications between high-level officials were turned over to the Committee in connection with the hearing, just months after the documents were first written. The House Ways and Means Committee held a similar hearing on February 4, 1982. Among the documents turned over to these Congressional committees was a memo written by Carolyn Kuhl on December 8, 1981 to Ken Starr noting Reagan/Bush campaign statements on private schools and a memorandum written by Carolyn Kuhl and Charles Cooper, one of the other members of the ``Bob Jones team,'' to Civil Rights Division Head Reynolds regarding the Bob Jones case.

At her hearing, Judge Kuhl conveniently told us that she regretted having taken the position she did at the time. Although it was the first time she had ever said so publicly, at her hearing, she claimed that in 1982 she had been concerned about the implications the Bob Jones policy would have on all-girls' schools. This concern was not reflected in her memos at the time, and has not been heard in any other context. But, taking her at her word that this was truly a concern, the explanation she gave at her hearing is still very interesting. She said, and I'll quote her, ``I had attended an all-girls' school and I did not want to see a precedent created that would have meant that tax exemptions could be taken away from all-girls' schools because they discriminated against men.'' In other words, she advocated helping a school that was racially discriminatory because of her personal affinity for her alma mater. Either way, whether or not you believe her newly articulated explanation, her responses on this issue raise as many questions as they answer.

Judge Kuhl also contended at her hearing that her advocacy on behalf of Bob Jones University should be excused because of her relative youth and inexperience. This too seems a convenient explanation. She describes herself as someone two and a half, maybe three years out of law school with no decision making authority, painting the picture of a naive young attorney with no influence over such important decisions. But this was 1982, five years after her graduation from law school, and she had proven herself enough to have landed one of the most prized jobs for a political appointee with a law degree: Special Assistant to the Attorney General of the United States. She doubtless had daily personal contact with the nation's highest law enforcement officer, and as his protege represented his position to the very influential people serving under him, including Solicitor General Charles Fried and Head of the Civil Rights Division William Bradford Reynolds. While I accept the contention that she was not the final decision maker on the Bob Jones matter, the facts lead me to believe that her arguments were taken seriously and held more than a little weight. I think Judge Kuhl underestimated the esteem in which her legal abilities were held. Indeed, only a few years later, she became the Deputy Assistant Attorney General in the Civil Rights Division, with managerial responsibilities for hundreds of attorneys.

I would argue that Judge Kuhl's participation in this case exceeded an attorney's obligation to be a zealous advocate. Rather, her aggressive involvement surely helped build momentum behind the drastic change in position the Justice Department would take. But the substantive weakness of her argument in the face of legal precedent only underscores how political and results-oriented it was. So thin was her case that it caused the New York Times to wonder ``How could any president be given such incompetent legal advice? How could lawyers for the U.S. Government stray so far from the mainstream of the Country's understanding on the racial issue? How could a president at this stage in our history play with the issue for political reasons?'' Judge Kuhl cannot so easily explain this away.

When she was Deputy Solicitor General in the Reagan Justice Department, Carolyn Kuhl tried to persuade the U.S. Supreme Court to eliminate its ``associational standing'' doctrine in

United Automobile Workers Union v. Brock, 477 U.S. 274 (1986). In this case, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) challenged the Secretary of Labor's interpretation of provisions of the Trade Act which would have deprived the union members of certain benefits-- benefits available to assist workers laid off because of competition from imports. The issue on appeal to the U.S. Supreme Court was whether the UAW had standing to sue in federal court on behalf of its affected members.

Although Judge Kuhl stated at her hearing that she was not on the brief in this case, she later revised her testimony in written answers, saying that she had confused this case with another. Although she was still not completely forthcoming in her responses, I discovered that she was in fact one of five high level officials on the brief and that she argued the case before the U.S. Supreme Court in March 1986.

In her arguments, she urged the Supreme Court to eliminate the doctrine of representative standing in favor of requiring organizations to meet the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure. But, she then also admitted that the government would oppose a request for class certification in this case. She stated in her brief that the Supreme Court should ``reconsider the doctrine in light of the practical and analytical difficulties it presents'', and that the doctrine was not of that ``longstanding effect.'' A significant portion of her brief was devoted to the more far-reaching arguments of why the doctrine of representative standing should ``not be recognized'' and why the class action provisions should be applied instead.

The majority of the Supreme Court rejected her arguments and concluded that the government's presentation ``has fallen far short of meeting the heavy burden of persuading us to abandon settled principles of associational standing.'' Id. at 290.

The doctrine of representative standing allows unions, environmental organizations, business groups, and others to protect the interests of their members in court. Elimination of the doctrine would greatly impede the ability of organizations to represent their members. For this reason, a diverse group of organizations, including the U.S. Chamber of Commerce and the AFL-CIO filed an amicus brief opposing Kuhl's position in the case.

Judge Kuhl's arguments in this case raise concerns about whether she would protect the rights of working men and women or curtail access to the courts for such individuals. In addition to this case, as a judge on the state court, she has issued troubling decisions with regard to the rights of working Americans and access to justice, such as a case in which she found that a woman target of a SLAPP (Strategic Lawsuit Against Public Participation) suit was not entitled to recover attorneys' fees for successfully defending against the suit--a decision which was unanimously reversed by the appellate court.

Other cases in which Judge Kuhl was involved with while at Justice demonstrate that on issues related to privacy and women's rights she clearly has an ideological agenda. As Deputy Solicitor General, Kuhl co-authored the Reagan Administration's amicus brief in Thornburgh v. American College of Obstetricians and Gynecologists, urging the Supreme Court to uphold Pennsylvania's severe restrictions on abortion, including prosecution of doctors. Her view on the matter is documented not only in the brief, but also by her boss at the time, Charles Fried, then-Solicitor General, who recounts in his memoirs that, ``[t]he most aggressive memo [about Roe v. Wade] came from my friends Richard Willard and Carolyn Kuhl, who recommended that we urge outright reversal of Roe.''

In that brief, Kuhl argued that the courts below placed too much emphasis on the woman's right to privacy. Moreover, the brief discusses issues beyond the merits of the particular case and urged the Supreme Court to abandon its principles of stare decisis and overturn settled law. In a 6-3 decision, the Supreme Court also rejected that call.

As Deputy Solicitor General, Carolyn Kuhl argued for an extremely narrow legal definition of sexual harassment in the landmark case of Meritor Savings Bank v. Vinson. A female employee, Mechelle Vinson, filed suit against her supervisor and the bank that employed her, alleging that the supervisor had sexually harassed her and that she had been terminated when she refused him, violating her rights under Title VII of the Civil Rights Act. Kuhl's brief for the Reagan Administration argued that Ms. Vinson's claim should be dismissed because her conduct had been found by the trial court to be voluntary. The Supreme Court found the opposite, and held that the claim could go forward no matter the characterization of Ms. Vinson's conduct, as long as the sexual attention she was getting, described by the court as ``appalling'' and ``especially egregious,'' was unwelcome.

It would have been bad enough that Judge Kuhl had taken this position as a political lawyer at the Justice Department, trying to narrow the rights of victims of sexual harassment as part of the Reagan agenda, but even worse and more puzzling, was her explanation of the case at her hearing.

Just as she articulated a never-before heard explanation for her position in the Bob Jones case, Judge Kuhl told us at her hearing that she was ``very happy'' with the decision, and that the Supreme Court's reasoning ``tracked'' the brief she wrote. She dismissed Senator Feinstein's concerns that the Justice Department had declined to accept the unwelcomeness standard adopted by the Supreme Court, brushing her off with a vague mention of the question of the voluntary nature of Ms. Vinson's behavior. This explanation is mystifying, and sounds to me like an attempt to put a positive spin on an issue she knew Democratic Senators would view with suspicion. She knew that those of us concerned with allowing victims of discrimination an opportunity for redress would have problems with her brief in Meritor Savings, and she fudged an answer to try to look like she agreed with us. Such obfuscation should not be allowed to succeed. I would have preferred it if she had been up front with us about her brief and its relationship to the Court's decision.

Judge Kuhl's record on the state bench offers another example of her troubling views on privacy. In the recent case of Sanchez-Scott v. Alza Pharmaceuticals, et al., Judge Kuhl's decision to dismiss a claim for invasion of privacy brought by a cancer patient against her doctor and a pharmaceutical company was reversed by the appellate court. The plaintiff, a patient undergoing chemotherapy for breast cancer, was examined by her oncologist, Dr. Monty Polonsky, in the presence of an unidentified man who turned out to be a representative of a pharmaceutical company.

The complaint stated that the doctor introduced the man, a Mr. Martinez, as, ``a person . . . who was looking at Dr. Polonsky's work,'' but no further details about his identity were provided. During the course of the physical, Ms. Sanchez-Scott felt warm and began to use a pocket fan to cool herself. The doctor took the fan from the plaintiff and gave it to Mr. Martinez so he could fan the plaintiff because, as he told her, ``[i]t would give him something to do.'' Then, the doctor and Mr. Martinez began to laugh at the plaintiff, who became very uncomfortable and asked for the fan back, saying she could fan herself. Mr. Martinez refused and continued to fan her. Dr. Polonsky examined Ms. Sanchez-Scott while she was undressed from the waist up, while Mr. Martinez sat beside the examining table and watched. Only when she went to the reception desk after her exam was over did Ms. Sanchez-Scott learn that Mr. Martinez was a drug salesman, and not a trained medical professional. Ms. Sanchez-Scott explained that she felt uncomfortable and embarrassed and cried from shame and anger once she left the doctor's office.

Judge Kuhl found that the plaintiff could not sustain an action for an invasion of privacy against the doctor because what happened to her did not meet the test of being ``highly offensive to a reasonable person.'' She reasoned that Ms. Sanchez-Scott had been introduced to Mr. Martinez, knew he was there and could have made further inquiry about who he was or object to his presence. She also found relevant that there was no touching, and that

nobody else found out about the presence of the drug salesman in the exam room. She also explained that because the patient would not have a reasonable expectation that a medical procedure would only be observed by a doctor, there could be no expectation of privacy. The appellate court ridiculed her reasoning and allowed the plaintiff to continue with her invasion of privacy claims against her doctor.

Again, at her hearing, Judge Kuhl's answers were misleading. When questioned about this case by Senator Durbin, Judge Kuhl tried to make herself seem sympathetic to Ms. Sanchez-Scott's plight. She told Senator Durbin that she could understand why the plaintiff was upset, that she had good reason to be upset. But Judge Kuhl misstated crucial facts about the case that would have shed a clearer light on her legal ruling. She told Senator Durbin that the plaintiff's claim for invasion of privacy against the doctor was permitted to go forward, an assertion that is simply not true. Later, in a letter to Senator Hatch, she did correct herself, but the impression she tried to leave at the hearing was contrary to the facts. If her ruling in the Sanchez-Scott case had been allowed to stand, the case against the doctor for an invasion of privacy would not have been able to go forward. I know this sounds like nitpicking about a minor procedural issue, but it is more than that. It is about her sensitivity to privacy issues, her ability to follow the law, and her pattern of trying to spin her negative positions to her benefit at her hearing.

Ms. Sanchez-Scott does not see it as nitpicking either. In a letter she wrote to the Committee about her experience in Judge Kuhl's court, she expresses her opposition to rewarding the judge with a promotion to the federal court. She tells us that, ``[a]s a cancer survivor, I trusted that my doctor would make decisions in my best interest . . . I was . . . shocked and dismayed that Judge Kuhl determined that I, not the doctor, had the obligation to protect my privacy in his exam room.''

This President talked about being a uniter, not a divider, yet he has failed to work with all home-State Senators to identify qualified candidates who can be supported by both sides. A recent opinion piece in the Washington Post had it right when it said that rather than promoting ``bipartisanship,'' which this President said he wanted, he has instead promoted ``hyper-partisanship.'' I hope--for the sake of our country and the independence of the judiciary--that the White House and the Senate majority decide to work with Democratic Senators to identify qualified, mainstream nominees who can be supported by all sides and to abandon their quest to pack the circuit courts with activists and ideologues.

I ask unanimous consent that several letters in opposition be printed in the Record.

Mr. President, the opposition to Justice Brown for a lifetime position on the D.C. Circuit is deep and wide and is based on her record, both on and off the bench. As anyone who was watching C- SPAN last night and the night before would know, the Republicans are using the judicial nomination process in a manner that divides rather than unites. As the San Francisco Chronicle wrote, ``Presidents typically shape the judiciary to reflect their own views. But with Charles Pickering, Priscilla Owens, William Pryor, Miguel Estrada and now Brown, Bush seems bent on stacking the bench with ideologues.''

For this particular nominee, Janice Rogers Brown, the White House political operatives and ideologically driven selection staff reached out 3,000 miles to find a nominee who has repeatedly received negative ratings, who has been criticized by her Republican colleagues on the bench, and who has emerged from the Senate Judiciary Committee on a party-line vote. As Justice Brown's home State newspaper, the San Francisco Chronicle, wrote: ``naming Janice Rogers Brown to the U.S. Circuit Court of Appeals for the D.C. Circuit, President Bush has again chosen a contrarian with a judicial philosophy that lies well outside the bounds of the mainstream.'' Even the Washington Post, which has been very sympathetic to this Administration and, in particular, to its court-packing efforts on the D.C. Circuit, has written that Janice Rogers Brown ``is one of the most unapologetically ideological nominees'' in many years.

As the nominee herself conceded at the end of her confirmation hearing, she was ``treated with great courtesy'' by the Members of the Judiciary Committee. Thereafter, this was a nomination rushed out of the Committee last week before the ink was dry on nonresponsive answers to Senators' questions, and during Senate floor debate on another highly divisive judicial nominee, before a full Committee debate could be held. The District of Columbia Circuit is too important to the rights of all Americans to be left to judges whose ideological bias would lead them to gut the environmental protections, workplace protections, consumer protections and other government regulations authorized by Congress to protect all Americans.

In my statement at the outset of her confirmation hearing less than one month ago, I urged partisans to end the ugly game of contending that any criticism of the record of a Bush judicial nominee had to be motivated by bigotry. I asked that the right-wing tactic of smears and name calling subside and that we not see the race card dealt from the shameful deck of unfounded charges that stalwarts of this President's most extreme nominees have come to rely upon as they further inject partisanship and politics into the appointment of Federal judges. I noted that I expected that those who ultimately decided to support Justice Brown, even though they oppose affirmative action, would do so because they believed she would be a fair Federal judge. I suggested that those who opposed her because they retained serious doubt about her nomination and are concerned that she was selected on ideological grounds, could oppose her nomination for principled reasons having nothing to do with race. I urged that we focus on substance at the hearing and in this process.

My plea went unheeded, so that, first, I must, again, briefly respond to the partisan smears and name-calling that I have been hearing from the other side of the aisle. We have heard the ridiculous charges that we are opposing Justice Brown because of her gender or her race. My opposition to this nominee has nothing to do with her race; it is has nothing to do with her gender. It is about what kind of a lifetime appointment to the District of Columbia Circuit I fear she would be.

If Democrats were making decisions based on the gender of the nominee, would we have confirmed 33 judges nominated by President Bush who are women, including seven to the Courts of Appeal? Would we have worked so hard during the Clinton years to increase gender diversity on the bench and fight for votes for Bonnie Campbell, Elena Kagan and the scores of women nominees who were blocked and delayed by anonymous Republican holds? Would we be urging President Bush to work with us to find outstanding women judges and lawyers to increase gender diversity on the Federal bench? Do our critics really contend that Senators Mikulski, Feinstein, Boxer, Murray, Landrieu, Lincoln, Cantwell, Clinton, and Stabenow are anti-woman, or that Senators Kennedy, Biden, Harkin, Reid or any other Democratic Senators would discriminate against women? This is a smokescreen, intended to obscure this nominee's stark record.

If Democrats were making decisions based on the race of the nominee, why would we have voted to confirm 13 African-American judges nominated by President Bush, including all four of the other African Americans nominated by President Bush to the appellate courts? Would we have confirmed Lavenski Smith to the 8th Circuit? Would we have fought so hard for two

Congresses to confirm Roger Gregory and integrate the 4th Circuit? Would we have worked with Senator Edwards to confirm Allyson Duncan to the 4th Circuit? For that matter, would we have been so outraged at the Republicans' treatment of Justice Ronnie White, Judge Beatty, Judge Wynn, Kathleen McCree Lewis and so many outstanding African-American judges and lawyers who the Republicans blocked from confirmation during the Clinton years? These claims of racism are irresponsible and false. These ploys are wrong, and they should stop.

In fact, the list of the African-American organizations and individuals who oppose Justice Rogers Brown's nomination is one of the most troubling indications that this is another divisive, ideologically driven nomination. Are we to believe that the 39 members of the Congressional Black Caucus are racist? Members of the Congressional Black Caucus include the respected congressional delegate from the District of Columbia Eleanor Holmes Norton, the chair of the Congressional Black Caucus, the Honorable Elijah Cummings, and such distinguished Americans as Representatives Charles Rangel and John Conyers. In addition the Nation's oldest and largest association of predominantly African-American lawyers and judges, the National Bar Association, and its State counterpart, the California Association of Black Lawyers both oppose this nomination.

The foremost national civil rights organization, the Leadership Conference on Civil Rights opposes this nomination. The women of Delta Sigma Theta oppose this nomination. Dr. Dorothy Height, Dr. Joseph Lowery and Julian Bond have spoken out against this nomination.

Justice Brown has a lengthy record, of opinions, of speeches and of writings. She has very strong opinions, and there is little mystery about her views, even though she sought to moderate them when she appeared before the Judiciary Committee.

I come to my decision after reviewing Justice Brown's record--her judicial opinions, her speeches and writings--and considering her testimony and oral and written answers provided to the Senate Judiciary Committee.

Now, Justice Brown's supporters will say we are opposing Justice Brown because her viewpoint is different than ours on social issues. But my opposition is not about whether Justice Brown would vote like me if she were a member of the United States Senate on issues of importance. This is not about her position on choice. This is not about one dissent or one speech. This is about Justice Brown's approach to the law--an approach which she has consistently used to promote her own ideological agenda, an extreme agenda that is out of the mainstream. Her approach does not entitle her to a lifetime appointment to this very important appellate court.

Janice Rogers Brown's approach to the law can be best described as a ``jurisprudence of convenience.'' What do I mean by that? Justice Brown has proven herself to be a results-oriented, agenda-driven judge whose respect for precedent and rules of judicial interpretation change depending on the subject matter before her and the results she wants to reach.

While Justice Brown's approach to the law has been inconsistent--she has taken whatever approach she needs to in order to get to a result she desires-- the results which she has worked toward have been very consistent--throughout her public record. Some of Brown's supporters, and in fact Justice Brown herself, have tried to detract attention from the ideas she has expressed in speeches--while she was a member of the bench--claiming they are ``just speeches.'' Well, that is a hard distinction to follow when Justice Brown's comments to groups across the country over the last 10 years repeated the same themes--in fact, sometimes even the same words--as she has written in her opinions.

In Santa Monica Beach v. Superior Court of L.A. County, Justice Brown wrote of the demise of the Lochner era, claiming ``the `revolution of 1937' ended the era of economic substantive due process but it did not dampen the court's penchant for rewriting the Constitution.'' Similarly, in a speech to the Federalist Society, she said of the year 1937--it ``marks the triumph of our own socialist revolution.''

In San Remo Hotel v. City and County of San Francisco, Justice Brown wrote, ``(t)urning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government.'' Similarly, two years earlier, she told an audience at the Institute for Justice, ``If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy--a license to steal, a warrant for oppression.''

As Berkeley Law School Professor Stephen Barnett pointed out about Justice Brown's ``apparent claim that these are `just speeches' that exist in an entirely different world from her judicial opinions,'' ``that defense not only is implausible but trivializes the judicial role.'' I agree with Professor Barnett on this and understand his determination to oppose her nomination. Justice Brown's provocative speeches are disturbing in their own right, and they are made more so by their reprise in her opinions.

Justice Brown now says that she will ``follow the law.'' However, in a judicial dissent, she wrote, ``We cannot simply cloak ourselves in the doctrine of stare decisis.''

One of the examples of Justice Brown's results-oriented jurisprudence can be seen in the way she has disregarded precedent in her opinions in order to expand the rights of corporations and property owners, at the expense of workers and individuals who have been the victims of discrimination. In several dissents, Justice Brown called for overturning an exception to at-will employment, long recognized by the California Supreme Court, that was created to protect workers from discrimination. She has repeatedly argued for overturning precedent to provide more leeway for corporations against attempts to stop the sale of cigarettes to minors, prevent consumer fraud, and prevent the exclusion of women and homosexuals.

Justice Brown has also been inconsistent in the application of rules of judicial interpretation--again depending on the result that she wants to reach in order to fulfill her extremist ideological agenda.

These legal trends--her disregard for precedent, her inconsistency in judicial interpretation, and her tendency to inject her personal opinions into her judicial opinions--lead to no other conclusion but that Janice Rogers Brown is--in the true sense of the words--a judicial activist.

When it is needed to reach a conclusion that meets her own ideological beliefs, Justice Brown stresses the need for deference to the legislature and the electorate. However, when the laws--as passed by legislators and voters--are different than laws she believes are necessary, she has advocated for judicial activism.

One stark example springs to mind: In order to support her view that judges should be able to limit damages in employment discrimination cases, she concluded that ``creativity'' was a permissible judicial practice and that all judges ``make law.''

Justice Brown's approach to the law has led to many opinions which are very disturbing. She has repeatedly and consistently advocated turning back the clock 100 years to return to an era where worker protection laws were found unconstitutional. She has attacked the New Deal, an era which created Social Security and labor standards, by saying it ``inoculated the Federal Constitution with a kind of underground collectivist mentality.''

And she has repeatedly opposed protections against discrimination of individuals--in their jobs and in their homes. Justice Brown's recent claims that her words do not mean what they say are simply unconvincing.

There is one more aspect of Justice Brown's nomination which is extremely disturbing. That has to do with the court for which she was nominated. She is being considered for a position on the premier administrative law court in the Nation--a court that is charged with overseeing the actions of Federal agencies that are responsible for worker protections, environmental protections, consumer safeguards, and civil rights protections.

I am concerned about her ability to be a fair arbitrator on this court. Justice Brown has made no secret of her disdain for government. She has said,

``where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies.''

How can someone who believes it is not the ``job of government to take care of'' the American people be entrusted to make fair and neutral decisions when faced with the responsibility of interpreting the powers of the Federal Government and the breadth of regulatory statutes? Justice Brown responded to this question at her hearing by calling on us to review her record as a judge to see that she does not ``hate Government.'' Well, I did review her record. And, what I found was disturbing: She has used her position on and off the bench to argue for the dismantling of government from the inside out.

It is no small irony that this President, who spoke of being a uniter but has used his position to send judicial nominations that divide the Senate and the country, and who spoke with disdain of ``judicial activism,'' has nominated several of the most consummate judicial activists ever chosen by any President. None of the President's nominees is more in the mold of judicial activist than this nominee, Janice Rogers Brown.

I am voting against Justice Borwn's nomination today because the American people deserve judges who will interpret the law fairly and objectively. Janice Rogers Brown is a confirmed and committed judicial activist who has a consistent record of using her position as a member of the court to advocate for her personal belief. We must not enable her to bring her ``jurisprudence of convenience'' to one of the most important courts in the Nation.

Mr. President, as I was watching the sunrise this morning, I thought of the men and women currently serving in Iraq and Afghanistan, and our Nation's veterans of past wars.

Today, we must remember those who have sacrificed to defend the freedoms and ideals all Americans enjoy. In our thoughts are not just the proud Americans who are fighting in Iraq and Afghanistan today, nor just the members of the ``Greatest Generation'' who fought in World War II. We think about those who lost their lives or served in the extended Cold War, the Korean War, Vietnam or who gave their lives in some of the less-known engagements across the globe aimed at preserving our country and preserving basic human rights throughout the world.

Of course, most in our minds right now are 130,000 men and women serving in Iraq. Over 30,000 of these troops are reservists who left their civilian jobs and families to serve in Iraq with pride and determination. Whether Active-Duty soldiers or Reserves, every single person in the military is there because they want to be there, and we owe them a special kind of gratitude for their service.

Today we should not just think about our veterans, but also address policies that will directly address their needs, whether they are still in the service or after they have returned. We must come together as a Senate to ensure that we honor that unspoken social contract with our active troops, guaranteeing superb quality-of-life programs exist for our active service members and their families and that they will never become forgotten soldiers of history.

Let's come behind our citizen soldiers of the Guard and Reserve to ensure they and their families are as healthy as possible. And, above all, let's make sure our veterans have a flourishing medical program to ensure they receive the high-quality care they deserve.

On this time-honored day, we express our gratitude to our veterans, we remember their courage and dedication, and we act to make up a small part of the large debt we owe them.

Mr. President, I am voting for the Syria Accountability Act because I believe it is important to call attention to Syria's continuing military occupation of Lebanon in violation of international law, and its support for terrorist organizations, including Hezbollah, that are responsible for ongoing, deadly incursions into Israel.

It is well established that the Syrian Government rules through fear and repression. Torture by Syrian security forces is routine. The denial of basic human rights has been widely documented. We should condemn these policies.

And there are allegations that Syria supplied Iraqi forces with military equipment, which the Secretary of Defense has described as hostile acts against the United States.

The United States is justified in seeking to apply political and economic pressure on Syria in an effort to change its policies. That said, there are some aspects of this legislation that I do not support, and I want to take a moment to discuss them as I do not want there to be any misunderstanding about my vote. Most importantly, I do not want my vote for this legislation to be cited as an endorsement for military action against Syria.

For examples, Section 4, entitled ``Statement of Policy,'' says that it is the policy of the United State that ``the United States shall impede Syria's ability to support acts of international terrorism and efforts to develop or acquire weapons of mass destruction.'' I doubt that anyone disagrees that we should try to do that. But by what means? Will support for this legislation be cited at some point in the future by the administration, or others, as a green light for launching a unilateral, military attack to ``impede Syria's ability to support acts of international terrorism?'' That is precisely what was done by the White House when it cited resolutions passed a decade ago to justify a unilateral attack against Iraq years later, even though that was not what many, if any of us who supported those resolutions intended at the time. Over and over again, the administration, in an effort to justify their precipitous use of force against Iraq, cited passage of the Iraq Liberation Act in 1998 as evidence that Congress supported the overthrow of Saddam Hussein in 2003. What the administration kept omitting in numerous public statements is that one section of that act made clear that nothing in the act was to be construed as authorizing the use of U.S. military force against Iraq. I am concerned that the Syria Accountability Act could be distorted in a similar way. I do not support military action against Syria, and I am in no way endorsing such action by voting for this legislation today.

The same can be said of the statement that it is the policy of the United States that ``efforts against Hezbollah will be expanded given the recognition that Hezbollah is equally or more capable than al Qaeda.'' First, I do not know if it is true that Hezbollah is ``equally or more capable than al Qaeda.'' Perhaps it is. I don't know, and I doubt the authors of this legislation can be certain that it is, especially given the difficulties we have had in obtaining reliable information about these organizations. In any event, while I might support expanded efforts against Hezbollah, it would depend on what those efforts are. For example, I am not in favor of sending U.S. troops to Lebanon to engage in combat against Hezbollah. I do not want my vote today to be construed as supporting any expanded efforts against Hezbollah regardless of what they might be.

Similarly, the legislation states that it is United States policy that ``Syria will be held accountable for any harm to Coalition armed forces or to any U.S. citizens in Iraq if the Government of Syria is found to be responsible due to its facilitation of terrorist activities and its shipments of military supplies to Iraq.'' Syria should be held accountable. But in what way? The legislation, once again, is silent. My support for efforts to hold Syria accountable, should

the evidence warrant it, depends on what those efforts are.

Finally, the legislation says that it is the policy of the united States that ``the United States will not provide any assistance to Syria and will oppose multilateral assistance for Syria until Syria ends all support for terrorism, withdraws it armed forces from Lebanon, and halts the development and deployment of weapons of mass destruction and medium- and long-range surface-to-surface ballistic missiles.'' We all want Syria to do those things, and I am not in favor of providing assistance to the Syrian Government. But this legislation goes farther. It purports to cut off any assistance to the Syrian people, even through private voluntary organizations. I do not believe in punishing the citizens of a country simply because their government is corrupt or abusive, so I have concerns about this provision.

There are also aspects of Section 5 of the legislation, entitled ``Penalties and Authorization,'' which concern me. For example, among the sanctions that the President could impose are a prohibition on U.S. businesses from investing or operating in Syria. It is not obvious to me how this will penalize the Syrian Government, but it will hurt U.S. businesses. While the record is mixed, there are examples of U.S. businesses contributing to social, economic and even political change in other repressive countries.

Of more concern is that the legislation encourages the President to reduce U.S. diplomatic contacts with Syria. I am uneasy with this approach, as I believe we should consider expanding our diplomacy and people-to-people contacts with Syria. It is in our interest to promote dialogue with a country with which we have such profound differences, and which poses a military threat to Israel. Reducing those contacts could further misunderstanding and exacerbate tensions between us. It is also worth mentioning that after the September 11 attacks, Syria reportedly cooperated with the United States in intelligence sharing about al-Qaida.

I do not believe this legislation will persuade Syria to do any of the things we want it to do. I am aware that the Administration has opposed it in the past. This legislation seems to start us down a road of intensifying tensions between the U.S. and Syria without a clear end game other than invading Syria, which I do not support and I doubt many other Senators support. However, I agree that Syria's support for terrorism and its violations of human rights deserve condemnation, and I will vote for this legislation with the caveats I have mentioned.

Mr. President, will the Senator yield for a question without losing his right to the floor?

Mr. President, I heard the Senator's question about delaying on this question of judges. Could it be that our friends on the other side, having blocked 61 of the President's nominees usually because of one Republican's objection, are concerned that Democrats have helped confirm a record number of President Bush's nominees, has stopped less than any President in recent history, and that maybe they want to obscure their own record and not be in the position to praise ours?

Will the Senator yield for a question?

Madam President, as always, I am impressed with my dear friend, the senior Senator from Nevada, one of the finest people out of the several hundred Senators with whom I have served in 29 years. I know the senior Senator from Nevada to be one who cares deeply about this institution and the way it works. He has been speaking at great length and on matters of great interest to all of us today.

I ask my distinguished friend from Nevada, is it not true the senior Senator from Nevada, like the senior Senator from Vermont and the senior Senator from Michigan who is on the floor, would have been very pleased if we had been doing the appropriations bills that by law we should have finished on September 30 rather than having to try to figure out the schedule the other side has put us in, a schedule that accomplishes, in this Senator's mind, absolutely nothing?

If I could ask him a question without his losing his right to the floor, I am sure the distinguished senior Senator from Nevada is aware of this, but he has talked about the record. Does he believe that people, including the press, might be surprised to know that in the 17 months the Democrats controlled the Senate during President Bush's current term, we confirmed 100 of President Bush's nominees and during the 17 months the Republicans were in charge of the Senate, they confirmed 68?

My point is not to say what a poor record they have; 68 would be a fine record, and they confirmed those 68 with the support of most of the Democratic Senators.

But my question to the senior Senator from Nevada is, does it seem like a little bit of crocodile tears when we hear from our friends on the other side, What is this terrible slow-up, when actually during the 17 months the Democrats were in charge, we confirmed more of President Bush's nominees, considerably more, than the Republicans had during the 17 months they have been in charge?

Madam President, with the concurrence of the distinguished majority leader, let me say that the majority leader, of course, is a dear friend, but the senior Senator from Nevada has been a very dear friend for many, many years. We campaigned the same year, I for reelection, he for the Senate. I have always been very proud of him.

When historians look back, they will see he did a great service for the Senate today in trying to put a lot of things in perspective. I will speak longer at a another time. I am doing this at the concurrence of the leader showing his usual courtesy. I will not exceed that. I will speak at a later time.

I appreciate my friend and also appreciate my friend from Tennessee.

I yield the floor.

Will the Senator from Illinois yield for a question without losing his right to the floor?

Madam President, I ask my friend from Illinois, who serves with me on the Appropriations Committee--who served on a number of committees in the other body before he was in the Senate--who has as much knowledge of procedure as anyone having served in the other body and served in this body, it has been my experience in over a quarter of a century on the Appropriations Committee, through six administrations--President Ford, President Carter, President Reagan, former President Bush, President Clinton--that both Republicans and Democrats were able to ask questions and expect answers from the executive branch.

Further, it was my experience that throughout all of these administrations, Republican and Democratic alike, there was not a restriction made because we were required to ask these questions. Is that the experience of the distinguished Senator from Illinois? Has the Senator had the same experience in both bodies--I am speaking now of appropriations but, of course, a lot of other committees are involved-- if we asked questions about where the money went, we received the answers irrespective of whether one was a Republican or Democratic?

Madam President, the ABA indicates concern about this nomination. The Standing Committee of the Federal Judiciary gave Mr. Pryor a partial rating of not qualified to sit on the Federal bench. And indications from these peer reviews have been enough to raise red flags in the confirmation process.

Let me talk about some more of the reasons we oppose William Pryor. Like Jeffrey Sutton, Mr. Pryor has been a crusader for the federalist revolution, but Mr. Pryor has taken an even more prominent role. Having hired Mr. Sutton to argue several key federalism cases in the Supreme Court, Mr. Pryor is the principal leader of the federalist movement, promoting state power over the Federal Government. A leading proponent of what he refers to as the ``federalism revolution,'' Mr. Pryor seeks to revitalize state power at the expense of Federal protections, seeking opportunities to attack Federal laws and programs designed to guarantee civil rights protections. He has urged that Federal laws on behalf of the disabled, the aged, women, minorities, and the environment all be limited.

Limiting Worker And Environmental Protections: He has argued that the Federal courts should cut back on the protections of important and well-supported Federal laws including the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Civil Rights Act of 1964, the Clean Water Act, the Violence Against Women Act, and the Family and Medical Leave Act. He has repudiated decades of legal precedents that permitted individuals to sue states to prevent violations of Federal civil rights regulations. Mr. Pryor's aggressive involvement in this ``federalist revolution'' shows that he is a goal- oriented, activist conservative who has used his official position to advance his ``cause.'' Alabama was the only state to file an amicus brief arguing that Congress lacked authority to enforce the Clean Water Act. He argued that the Constitution's Commerce Clause does not grant the Federal Government authority to prevent destruction of waters and wetlands that serve as a critical habitat for migratory birds. The Supreme Court did not adopt his narrow view of the Commerce Clause powers of Congress. While his advocacy in this case is a sign to most people of the extremism, Mr. Pryor trumpets his involvement in this case. He is unabashedly proud of his repeated work to limit Congressional authority to promote the health, safety and welfare of all Americans.

Mr. Pryor's passion is not some obscure legal theory but a legal crusade that has driven his actions since he was a student and something that guides his actions as a lawyer. Mr. Pryor's speeches and testimony before Congress demonstrate just how rooted his views are, how much he seeks to effect a fundamental change in the country, and how far outside the mainstream his views are.

Mr. Pryor is candid about the fact that his view of federalism is different from the current operation of the Federal Government and that he is on a mission to change the Government to fit his vision. His goal is to continue to limit Congress's authority to enact laws under the Fourteenth Amendment and the Commerce Clause--laws that protect women, ethnic and racial minorities, senior citizens, the disabled, and the environment--in the name of sovereign immunity. Is there any question that he would pursue his agenda as a judge on the Eleventh Circuit Court of Appeals--reversing equal rights progress and affecting the lives of millions of Americans for decades to come?

Mr. Pryor's 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.

Attacking the Voting Rights Act: In testimony before Congress, Mr. Pryor has urged repeal of Section 5 of the Voting Rights Act--the centerpiece of that landmark statute--because, he says, it ``is an affront to federalism and an expensive burden that has far outlived its usefulness.'' That testimony demonstrates that Mr. Pryor is more concerned with preventing an ``affront'' to the states' dignity than with guaranteeing all citizens the right to cast an equal vote. It also reflects a long-discredited view of the Voting Rights Act. Since the enactment of the statute in 1965, every Supreme Court case to address the question has rejected the claim that Section 5 is an ``affront'' to our system of federalism. Whether under Earl Warren, Warren Burger, or William Rehnquist, the United States Supreme Court has recognized that guaranteeing all citizens the right to cast an equal vote is essential to our democracy--not a ``burden'' that has ``outlived its usefulness.''

His strong views against providing counsel and fair procedures for death row inmates have led Mr. Pryor to doomsday predictions about the relatively modest reforms in the Innocence Protection Act to create a system to ensure competent counsel in death penalty cases. When the United States Supreme Court questioned the constitutionality of Alabama's method of execution in 2000, Mr. Pryor lashed out at the Supreme Court, saying, ``[T]his issue should not be decided by nine octogenarian lawyers who happen to sit on the U.S. Supreme Court.''

Aside from the obvious disrespect this comment shows for the Nation's highest court, it shows again how results-oriented Mr. Pryor is in his approach to the law and to the Constitution. Of course, an issue about cruel and unusual punishment ought to be decided by the Supreme Court. It is addressed in the Eighth Amendment, and whether or not we agree on the ruling, it is an elementary principle of constitutional law that it be decided by the Supreme Court, no matter how old its members.

Mr. Pryor has also vigorously opposed an exemption for persons with mental retardation from receiving the death penalty, exhibiting more certainty than understanding or sober reflection. He authored an amicus curiae brief to the Supreme Court arguing that the Court should not declare that executing mentally retarded persons violated the Eighth Amendment. After losing on that issue, Mr. Pryor made an unsuccessful argument to the Eleventh Circuit that an Alabama death-row defendant is not mentally retarded.

Mr. Pryor has spoken harshly about the moratorium imposed by former Illinois Governor George Ryan, calling it a ``spectacle.'' Can someone so dismissive of evidence that challenges his views be expected to hear these cases fairly? Over the last few years, many prominent Americans have begun raising concerns about the death penalty, including current and former supporters of capital punishment. For example, Justice O'Connor recently said there were ``serious questions'' about whether the death penalty is fairly administered in the United States, and added: ``[T]he system may well be allowing some innocent defendants to be executed.'' In response to this uncertainty, Mr. Pryor offers us nothing but his obstinate view that there is no problem with the application of the death penalty. This is a position that is not likely to afford a fair hearing to a defendant on death row.

Mr. Pryor's troubling views on the criminal justice system are not limited to capital punishment. He has advocated that counsel need not be provided to indigent defendants charged with an offense that carries a sentence of imprisonment if the offense is classified as a misdemeanor. The Supreme Court nonetheless ruled that it was a violation of the Sixth Amendment to impose a sentence that included a possibility of imprisonment if indigent persons were not afforded counsel.

Like Carolyn Kuhl, Priscilla Owen and Charles Pickering, Mr. Pryor is hostile to a woman's right to choose. There is every indication from his record and statements that he is committed to reversing Roe v. Wade. Mr.

Pryor describes the Supreme Court's decision in Roe v. Wade as the creation ``out of thin air [of] a constitutional right,'' and opposes abortion even in cases of rape or incest.

Mr. Pryor does not believe Roe is sound law, neither does he give credence to Planned Parenthood v. Casey. He has said that ``Roe is not constitutional law,'' and that in Casey, ``the court preserved the worst abomination of constitutional law in our history.'' When Mr. Pryor appeared before the Committee, he repeated the mantra suggested by White House coaches that he would ``follow the law.'' But his willingness to circumvent established Supreme Court precedent that protects fundamental privacy rights seems much more likely.

Mr. Pryor has expressed his opposition to fair treatment of all people regardless of their sexual orientation. The positions he took in a brief he filed in the recent Supreme Court case of Lawrence v. Texas were entirely repudiated by the Supreme Court majority just a few months ago when it declared that: ``The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private conduct a crime.'' Mr. Pryor's view is the opposite. He would deny certain Americans the equal protection of the laws, and would subject the most private of their behaviors to public regulation.

A record of activism: On all of these issues--the environment, voting rights, women's rights, gay rights, federalism, and more--William Pryor's record of activism and advocacy is clear. That is his right as an American citizen, but it does not make him qualified to be a judge. As a judge it would be his duty to impartially hear and weigh the evidence and to impart just and fair decisions to all who come before the court. In their hands, we entrust to the judges in our independent Federal judiciary the rights that all of us are entitled to enjoy through our birthright as Americans.

The President has said he is against what he calls ``judicial activism.'' How ironic, then, that he has chosen several of the most committed and opinionated judicial activists ever to be nominated to our courts.

The question posed by this controversial nomination is not whether Mr. Pryor is a skilled and capable politician and advocate. He certainly is. The question is whether--not for a 2-year term, or a 6- year term, but for a lifetime--he would be a fair and impartial judge. Could every person whose rights or whose life, liberty or livelihood were at issue before his court, have faith in being fairly heard? Could every person rightly have faith in receiving a just verdict, a verdict not swayed by or yoked to the legal philosophy of a self-described legal crusader? To read Mr. Pryor's record and his extreme views about the law is to answer that question.

The President has chosen to divide the American people, the people of the Eleventh Circuit, and the Senate with this highly controversial nomination. He should clean the slate and choose a nominee who can unite the American people.

I see the distinguished senior Senator from New York on the Senate floor. Would he seek time?

I yield the floor. How much time is remaining?

I thank the Chair. I yield 10 minutes to the distinguished Senator from New York.

I yield the Senator 2 minutes.

Madam President, I understand I still have almost 5 minutes left. Of course.

Madam President, I answer the distinguished senior Senator from Nevada by saying, yes, it is. I answer further, although he didn't ask this question, I am not aware of any votes that have changed since that time.

Madam President, the senior Senator from Nevada is absolutely right. In fact, of those appropriations, we have held up the appropriations for our veterans, and we can't find time to vote on the floor. Appropriations for our law enforcement people are being held up and we can't find time to vote on the floor. Appropriations for the Federal judiciary, for the State Department, for housing, and a number of others are being held up, and we can't seem to find time to vote on the floor. But we are doing this revote when everybody knows the result will be precisely what it was the last time.

Madam President, the Senator is absolutely right. The vacancy rate in the judiciary is at a 13-year low. It was at a high at the end of President Clinton's term because the Republican majority in the Senate had blocked over 60 of President Clinton's nominees, usually by either threatening filibusters or not even allowing them to have a vote.

In the 17 months that the Democrats were in charge of the Senate, we confirmed 100 of President Bush's nominees, which brought down that rate. In the 17 months the Republicans have been in charge, they have confirmed another 68. So the vacancy rate is at a 13-year low. In fact, I say to my friend from Nevada, President Bush, in less than 3 years, has seen more of his nominees confirmed than President Reagan did in his first 4 years, with a Republican majority in those 4 years, and he was the all-time champ.

Madam President, it is. As a good friend of mine in the Republican Party said the other day: Pat, I know this whole argument is bogus. I guess we are making it for fundraising letters. But I do know President Bush has had far more of his nominees confirmed with both Democrats and Republicans in the Senate than anybody has in decades.

Yes, it is true, and I do agree with my Republican friend that the argument is bogus. But the only objection I have to the bogus argument being made is that we should be voting on the money for our veterans. We should be voting on the money for our law enforcement. We should be voting on the money for housing. And, we should be passing those bills that, by law, we were supposed to have passed way back in September.

I ask unanimous consent that the entire L.A. Times article that has been referred to by the distinguished Senator from Nevada be printed in the Record.

How much time is remaining?

I will yield back my 10 seconds.

Mr. President, is the Senator from Utah suggesting a half hour evenly divided?

I think that would be enough, but just to be on the safe side,

I will check with a couple of Members. Could we say 40 minutes evenly divided? I assume I will be able to yield some of that back.

Mr. President, I send to the desk an amendment on behalf of myself, Senator Snowe, Senator Jeffords, Senator Collins, Senator Reed of Rhode Island, and Senator Clinton. I ask, first, that the pending amendment be laid aside and that I send the amendment to the desk.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, this amendment is quite straightforward. We offered it to restore the conservation funding commitment Congress and the administration made to farmers and ranchers in the 2002 farm bill. I was one of the conferees in that farm bill. I remember we went all night long. We went weekend after weekend. The final bill was a very delicately put together compromise between Republicans and Democrats in both bodies and the administration, between those in the East, those in the West, those in the Midwest. It was a very delicate balance because of the amount of money involved and how it would be allocated.

It was especially important because in this bill there was concern when it was passed whether those in the East would vote for the bill. Our amendment addressed the problem that Senators, if not all Senators, have been hearing about.

Despite the historic conservation funding levels of the 2002 farm bill, the family farmers and ranchers trying to restore wetlands are offering to change the way they farm to improve air and water quality are rejected when they seek USDA help. Producers are turning away because of a Department of Agriculture decision earlier this year to divert $158.7 million from working lands conservation programs, to pay for the conservation reserve and wetlands reserve. It goes directly against the clear directive in the 2002 farm bill. That directed the USDA use mandatory funds for the Commodity Credit Corporation to pay for CRP and WRP technical assistance.

This may sound technical, but the fact is, by not following what the Congress voted for, Republicans and Democrats alike, we end up having the administration raid the farm bill, raid working lands programs.

This chart shows what happens: $57 million diverted from EQIP, the Environmental Quality Incentives Program; $18 million diverted from the Farmland and Rangeland Protection Program; $9.6 million diverted from the Grasslands Reserve Program; and $5.6 million from the WHIP, Wildlife Habitat Incentives Program, to pay for technical assistance.

All these are included for different reasons. The Wildlife Habitat Incentives Program helps those who fish and hunt. They were part of the overall compromise. Their money is gone.

The language of the statute, a relevant colloquy, supports this interpretation, and the General Accounting Office concurred in a recent memo that we settled a very clear intent of the Congress how that money be spent. I ask unanimous consent that memo be printed in the Record.

This bipartisan amendment simply overrides the USDA decision and prevents funds from the Working Lands Incentive Programs such as EQIP, FRPP, GRP, and WHIP from being diverted. We are simply saying USDA should follow the law as any other Department has to follow the law.

I have been in the Senate a long time. I have been a member of the Senate Agriculture Committee for nearly 30 years. I am a former chairman of that committee. I have long been an advocate for the CRP program. Some of my colleagues may be concerned how this impacts CRP.

I assure everyone the amendment is a first step toward solving the dilemma the administration put us in by ignoring the 2002 farm bill. We need to solve the problem this year. Supporting the amendment assures it will be raised during conference.

We cannot allow this or any other administration, but especially one that has demonstrated total disregard for the environment, to pick winners and losers among the conservation programs. If we do not address this, we will continue to rob Peter to pay Paul and it defies the direct will of the Congress--again, the direct will in an agreement that was negotiated between Republicans, Democrats, House, Senate, and the administration. We have tried to hold our end of the deal. The administration has not.

We provided $6.5 billion for working lands programs in the 2002 farm bill. We want farmers to manage working lands to produce our food and fiber but also to enhance water quality and to enhance wildlife habitat. We are trying to put together a win-win situation: We enhance our water, improve wildlife habitat, and we still raise our food and fiber.

For example, EQIP helps share the cost of a whole lot of land management practices that help the environment, including more efficient use of fertilizers and pesticides, and greater use of innovative technologies to handle animal waste. It gives farmers the tools they need.

Every farmer and rancher I have heard from wants the money there. Every farmer and rancher I have heard from says: How come we are not following what the law requires?

If we continue to divert money, we are going to see programs such as EQIP, WHIP, and FRPP continue to face significant backlogs.

Let me show you this chart. This gives you an example of the unfunded applications.

In fiscal year 2002, USDA reported a $500 million backlog in the State of Texas, as I look at this chart. The national total is almost $1.5 billion--$1,486,000,944. There is a $17 million backlog in Arkansas, a $20 million backlog in California, a $36 million backlog in Florida, a $66 million backlog in Kansas, a $200 million backlog in Missouri, a $106 million backlog in Nebraska and, as I said, a $500 million backlog in Texas.

My little State of Vermont has a $7 million backlog. But look how much bigger it is in the rest of these States. So we have to go back. We know 70 percent of the American landscape is private land. We know farming dramatically affects the health of America's rivers, lakes, and bays. We have to go back to what we agreed when we passed the farm bill.

When farmers and ranchers take steps to improve air and water quality or assist rare species, they face new costs, new risks, or a loss of income. These conservation programs help share these costs, underwrite these risks, or offset these losses of income.

It helps our farmers and ranchers. They want it. They thought we agreed on it. We thought we had agreed on it. We should go back to what we agreed to.

My amendment, a bipartisan amendment, does that. It tells the administration to honor the 2002 farm bill by fully funding working lands conservation programs. The failure to adequately fund these working lands conservation programs is having a dramatic impact on both farmers and the farm economy.

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

Mr. President, I reserve the remainder of my time.

(At the request of Mr. Daschle, the following statement was ordered to be printed in the Record.)

Will the Senator yield?

During the debate on the farm bill, there was a colloquy. The distinguished senior Senator from Mississippi, Mr. Cochran, asked the then-chairman of the Senate Agriculture Committee ``whether the legislation under consideration here today will fix the problem of the section 11 cap for conservation programs.''

The Senator from Iowa responded it would, and he said:

As a result, for directly funded programs, such as the

Conservation Security Program and the Environmental Quality

Incentives Program, funding for technical assistance will

come from the borrowing authority of the Commodity Credit

Corporation. . . .

For programs such as the CRP, WRP, and the Grasslands

Reserve Program . . . funding will come from the annual

program outlays . . . from the borrowing authority of the

Mr. President, I appreciate what the Senator from Utah has said. He is a dear friend of mine. I try to emulate him so much, I even go to the same barber as he does. But in his State, Utah, they are $4.753 million behind what they thought they had been promised.

I couldn't agree more. I have been on the Appropriations Committee for more than a quarter of a century. I don't like to see problems fixed in the Appropriations Committee that could have been fixed in the authorizing committee. But we did fix it in the authorizing committee. We did put in a GAO study. A colloquy between Senator Cochran and Senator Harkin and others makes it very clear we fixed it there. It is USDA that is not following the law.

That is why Texas is behind $500 million in this area, Nebraska is behind $106 million, and Missouri is behind $200 million. I will just read some of these figures. I hope people understand this is not an attack on the CRP program. I support CRP. I voted many times for the CRP in 29 years. What this amendment does is prevent the administration from raiding other conservation programs. Unfortunately, the administration pits conservation programs against one another. What they should do is take it out of the CCC account, as we said in the law.

But I hope when Senators vote, they realize, if they are from Arizona, they have $30 million in their State's EQIP unfunded application. If you are from Arizona, you have $30 million that your farmers are looking for. If you are from Alabama, you have $10 million they are looking for. If you are from Colorado, you have $36 million you are looking for; Florida, $36 million; if you are from Iowa, you have $30 million you are looking for but have not received. If you are from Kansas, you have backlogs of $66 million; Louisiana, $11 million; Missouri, $200 million; Nebraska, $106 million; Montana, $52 million; Oklahoma, nearly $25 million; Tennessee, $21 million; West Virginia, $15 million.

Obviously, every Senator can vote any way he or she wants, but I don't know, if I were from a State that had a backlog of $10 million, as Alabama does, or $30 million, as Arizona does, or $17 million, as Arkansas does, or $35 million, as Colorado does, or $36 million, as Florida does, or $30 million, as Iowa does, or $66 million, as Kansas does, or $12 million, as Louisiana does, or $200 million, as Missouri does, or $51 million, as Montana does, $106 million, as Nebraska does, $500 million, as Texas does, or $25 million, as Oklahoma does, or $8 million, as Pennsylvania does, I think I might want to vote for this and not go back and tell my State, ``Sorry.''

I ask unanimous consent to print in the Record the fiscal year 2002 EQIP unfunded applications that we now face.

Mr. President, the Senator from Utah is back. If he would

like, I would be prepared to yield back all time. I do ask for the yeas and nays on the amendment.

If the Senator from Utah intends to, yes, I will.

Madam President, will the Senator yield on that point just for 20 seconds?

I wanted to point out this amendment doesn't take it out of the CRP. As the Senator knows--he serves on the Agriculture Committee--I have been a strong supporter of CRP straight through. It is just that the original farm bill took it out of CCC.

What is happening now is the administration is playing one off against the

other with these various conservation programs instead of going to CCC like they are supposed to. All my amendment says is not to take it out of CRP--I am a strong supporter of CRP--but allow the Farm Bill to stand and take it out of CCC as they were supposed to in the first place.

This amendment simply follows the farm bill, and the distinguished Senator from Iowa was the chairman of that conference for the Senate. It was the farm bill on which we agreed.

Madam President, the Senator who helped put together that farm bill knows the farm bill itself took away the section 11 caps. My amendment in no way takes money from CRP or anything else. It simply builds a firewall around EQIP, FRPP, GRP and WHIP, which is what we all agreed to at the time when the chairmen of the House and Senate Agriculture Committees and others were trying to make sure they had votes to pass the farm bill. These programs were essential to get the support from the East where most of the tax dollars come to pay for this farm bill.

This amendment does not take from CRP. We are simply telling USDA to take it from the CCC. It tells the USDA to go back to the farm bill, which spoke of taking this money from the CCC. It just builds a firewall. That is all; nothing more, nothing less. The reason I care this much about it is that it was pointed out during the farm bill debate that the bulk of the money was going to the Midwest, yet the tax dollars were coming from much more populous States, mostly through the Northeast, to pay for it. Almost all the money was going to the Midwest and other farm areas, but this is the one area that we got anything.

EQIP is the only area where the Northeast States get some assistance--so it doesn't sound parochial, the backlog in my State is less than $8 million. The backlog in Iowa is about $29 million. We just want to build the firewall. That is all.

When the Congress, in a bill that had been debated for weeks and negotiated for weeks, tells the Department of Agriculture to do something, I like to think they are going to do something. GAO says they are not following our clear intent.

What we are saying is just build the firewall, not rob Peter to pay Paul from these conservation programs, especially CRP, which I support. CRP is used in the Senator's State of Iowa a great deal. I have always supported the other Senators.

All I am saying is go back to CCC where this is supposed to be. That is all.

If the Senator will yield, I thought in the unanimous consent request we divided the 5 minutes. I am told we did not so it is still the time of the Senator, but I would say all I want to do is what we did in the bill. I want the USDA to follow the bill, and I would read a colloquy. It says:

. . . funding for technical assistance will come from the

borrowing authority of the Commodity Credit Corporation, and

will no longer be affected by section 11 of the CCC Charter

Act. For those programs such as the CRP, WRP, and the

Grasslands Reserves Program, which involve enrollment based

on acreage, the technical assistance funding will come from

the annual program outlays apportioned by OMB--again, from

the borrowing authority of the CCC. These programs, too, will

no longer be affected by section 11 of the CCC Charter Act.

That was on the floor from the statement of the distinguished Senator from Iowa as the manager of that bill.

I do not know how much clearer I can say it. We are trying to get the Department of Agriculture to follow the law.

I know the Senator from Iowa has been a supporter of all of these programs, as I have of the programs that affect his State, not those of us in the East. I am just saying I want the Department of Agriculture to stick to the agreement they made with the conferees at the time we passed the bill, and the only way it seems we can get them to do that is to restate it in this amendment.

Mr. LEAHY. Mr. President, in June of this Year, I introduced S. 1293, the Criminal Spam Act, together with my friend Senator Hatch and several of our colleagues on the Judiciary Committee. In September, the committee unanimously voted to report the bill to the floor. Two weeks ago, the Senate adopted portions of the bill as an amendment to S. 877, the CAN SPAM Act. The bill has been cleared from the Democratic cloakroom for weeks.

Unfortunately, this important measure is hung up on the Republican side because of an anonymous ``hold'' by some Republican Senator.

The Criminal Spam Act targets the most pernicious and unscrupulous spammers--those who use trickery and deception to induce others to relay and view their messages. Ridding America's inboxes of deceptively delivered spam will significantly advance our fight against junk e- mail.

Why would anyone want to prevent passage of this important legislation? It is bipartisan. It is non-controversial. It enjoys broad support from businesses, consumer groups, and civil liberties groups alike. The administration has only good things to say about it, and I know of no individual or organization that opposes it.

The answer must be that someone on the other side of the aisle is playing politics with this bill, holding it up for some reason that has nothing to do with it--or for no reason at all.

We could pass the Criminal Spam Act today, the House could act quickly and we could start prosecuting the worst of the worst spammers without delay. Instead, a single Republican Senator is allowing these individuals to continue to flood the Internet with their unwanted ads.

The Internet is a valuable asset to our Nation, to our economy, and to the lives of Americans. We should act now to secure its continued viability and vitality.

Mr. President, I am pleased to join with Senator Hatch to

introduce legislation to extend the Undetectable Firearms Act for ten years. I appreciate working with the Chairman of the Judiciary Committee and thank him for his leadership on this legislation.

The Undetectable Firearms Act became law in 1988, long before the tragic attacks on our country on September 11, 2001. The Undetectable Firearms Act also known as the ``plastic gun law'' made it illegal to manufacture, import, possess, or transfer a firearm that is not detectable by walk-through metal detectors or airport x-ray machines. This law has been extended once, and is due to expire on December 10, 2003.

It is critical that this bill does not expire at the end of this year. Over the past two years, Congress has done tremendous work to make America a safer place and prevent any more terrorist attacks. We need to act today to ensure that Americans are not needlessly vulnerable to attacks at airports, schools, and other public buildings.

I urge all my colleagues to support this legislation to extend the Undetectable Firearms Act for the next ten years.

Mr. President, I am pleased to join with Senator Hatch to

introduce legislation to extend the Undetectable Firearms Act for ten years. I appreciate working with the Chairman of the Judiciary Committee and thank him for his leadership on this legislation.

The Undetectable Firearms Act became law in 1988, long before the tragic attacks on our country on September 11, 2001. The Undetectable Firearms Act also known as the ``plastic gun law'' made it illegal to manufacture, import, possess, or transfer a firearm that is not detectable by walk-through metal detectors or airport x-ray machines. This law has been extended once, and is due to expire on December 10, 2003.

It is critical that this bill does not expire at the end of this year. Over the past two years, Congress has done tremendous work to make America a safer place and prevent any more terrorist attacks. We need to act today to ensure that Americans are not needlessly vulnerable to attacks at airports, schools, and other public buildings.

I urge all my colleagues to support this legislation to extend the Undetectable Firearms Act for the next ten years.

Mr. President, I compliment the Republican leadership for finally agreeing to move to the nomination of Roger Titus, who has been cleared on this side for some time.

The nominee has won universal acclaim as a member of the Maryland bar. In fact, it was suggested that he was going to be nominated to the U.S. Court of Appeals for the Fourth Circuit. It would have been a consensus where both Republicans and Democrats would have agreed. I wish the administration had done that. Instead, they have moved him to fill this seat. It is not a confrontational one for the circuit. In any event, he should be supported. He will make the 168th judicial nominee of President Bush's to be confirmed, which sets an all-time record for this time in a President's term in office, surpassing even that of President Reagan, when we had a Republican majority.

Mr. Titus has been an active litigator in Maryland for over 37 years, and has litigated hundreds of cases, both civil and criminal. He has been a partner at the Venable law firm and is a former president of the Maryland Bar Association. He has also served as an adjunct professor at the Georgetown University Law Center. Mr. Titus earned a unanimous ``well-qualified'' rating from the ABA, and an AV rating from Martindale-Hubbell.

In 2001, Mr. Titus was honored with The Baltimore Daily Record's first Leadership in the Law Award, which recognizes members of the legal community for their devotion to the betterment of the profession and their communities. In 1999, Mr. Titus received the Century of Service Award from the Montgomery County Bar Association for his outstanding contributions to the legal profession and community during the 20th century.

According to an article in The Baltimore Sun, Mr. Titus was apparently in the running to be nominated for a seat on the U.S. Court of Appeals for the Fourth Circuit. In light of his stellar qualifications, deep roots in his legal community and ability to garner the bipartisan support of his elected officials he would have been a consensus choice for this important appellate seat. It is unfortunate that the President felt the need to nominate someone without any local ties to that Maryland vacancy.

There are reportedly 30,000 practicing attorneys in the State of Maryland. Instead of nominating a well-qualified Marylander like Mr. Titus to Judge Murnahan's vacant seat on the Fourth Circuit, the President selected a younger, more controversial nominee with very little litigation experience. Not surprisingly, that nominee, Claude Allen, received a partial ``not qualified'' rating by the American Bar Association and his selection for this prestigious lifetime appointment has garnered a significant amount of opposition from concerned citizens groups.

It is regrettable that this President has again chosen the course of confrontation and conflict for his appellate court nominations. Mr. Titus, with his many years of litigation experience and his well- deserved reputation as a leader among lawyers in Maryland, is the type of person who should have been chosen for Judge Murnahan's vacant seat on the Fourth Circuit. His nomination stands in sharp contrast to the inexperienced and divisive candidates chosen by the White House for too many appellate judgeships in what appear to be an effort to pack the court with ideological nominees and tilt these courts.

There is no doubt that Mr. Titus is a Republican, yet he has the support of both of his home-State Senators and has earned the unanimous support of the Members of the Judiciary Committee. I am happy to support his nomination today and I congratulate Mr. Titus and his family on his confirmation. I commend Senators Sarbanes and Mikulski for their efforts to identify outstanding Maryland lawyers to maintain the high standards of the Federal bench in Maryland.

In less than 3 years' time, President George W. Bush exceeded the number of judicial nominees confirmed for President Reagan in all 4 years of his first term in office. Senate Democrats have cooperated so that this President already surpassed the record of the President Republicans acknowledge to be the ``all time champ'' at appointing Federal judges. Since July, 2001, despite the fact that the Senate majority has shifted twice, with today's vote, a total of 168 judicial nominations have been confirmed, including 29 circuit court appointments. One hundred judges were confirmed in the 17 months of the Democratic Senate majority and with Mr. Titus' nomination we will have confirmed 68 during the comparative time of the Republican majority.

One would think that the White House and the Republicans in the Senate would be heralding this landmark. One would think they would be congratulating themselves for putting more lifetime appointed judges on the Federal bench than President Reagan did in his entire first term and doing it in three-quarters the time. But Republicans have a different partisan message and this truth is not consistent with their efforts to mislead the American people into thinking that Democrats have obstructed judicial nominations. That is why the President chose to criticize the Senate from the Rose Garden again last week rather than work with us and recognize what we can accomplish together.

Not only has this President been accorded more Senate confirmations than President Reagan achieved during his entire first term, but he has also achieved more confirmations this year than in any of the 6 years that Republicans controlled the Senate when President Clinton was in office. Not once was President Clinton allowed 68 confirmations in a year when Republicans controlled the pace of confirmations. Despite the high numbers of vacancies and availability of highly qualified nominees, Republicans never cooperated with President Clinton to the extent Senate Democrats have. President Bush has appointed more lifetime circuit and district court judges in 10 months this year than President Clinton was allowed in 1995, 1996, 1997, 1998, 1999, or 2000.

Last year alone, the Democratic majority in the Senate proceeded to confirm 72 of President Bush's judicial nominees and was savagely attacked nonetheless. Likewise in 1992, the last previous full year in which a Democratic Senate majority considered the nominees of a Republican President, 66 circuit and district court judges were confirmed.

Historically, in the last year of an administration, consideration of nominations slows, the ``Thurmond rule'' is invoked and vacancies are left to the winner of the upcoming Presidential election. In 1992, Democrats proceeded to confirm 66 of former President Bush's judicial nominees even though it was a Presidential election year. By contrast, in 1996, when Republicans controlled the pace for consideration of President Clinton's judicial nominees only 17 judges were confirmed and not a single one of them was to a circuit court.

In fact, President Bush has now already appointed more judges in his third year in office than in the third year of the last five Presidential terms, including the most recent term when Republicans controlled the Senate and President Clinton was leading the country to historic economic achievements. That year, in 1999, Republicans allowed only 34 judicial nominees of President Clinton's to be confirmed all year, including only 7 circuit court nominees. Those are close to the average totals for the 6 years 1995-2000 when a Republican Senate majority was determining how quickly to consider the judicial nominees of a Democratic President. By contrast, with today's confirmation, the Senate this year will have confirmed 68 judicial nominees, including 12 circuit court nominees, almost double the totals for 1999.

We have worked hard to balance the need to fill judicial vacancies with the imperative that Federal judges need to be fair. In so doing, we have reduced the number of judicial vacancies today to 40. More than 95 percent of the federal judgeships are filled. After inheriting 110 vacancies when the Senate Judiciary Committee reorganized under Democratic control in 2001, I helped move through and confirm 100 of the President's judicial nominees in just 17 months. With today's 68th confirmation this year, we have reached the lowest number of vacancies in 13 years. There are more Federal judges on the bench today than at any time in American history. These facts stand in stark contrast to the false partisan rhetoric that demonize the Senate for having blocked all of this President's judicial nominations. The reality is that the Senate is proceeding at a record pace and achieving record numbers.

I congratulate Mr. Titus and his family on his confirmation today.

I ask for the yeas and nays.

Mr. President, I support passage of the Homeland Security Federal Workforce Act, S. 589, and urge favorable Senate action and swift House adoption, as well. Senators Akaka and Durbin deserve great credit for developing this legislation last Congress with Senator Thompson and pursuing it to passage this year.

I share their concern that we need to do more to recruit and retain outstanding personnel in our pursuit of national security. I believe that includes our law enforcement personnel. For the last two Congresses I have sponsored the Federal Prosecutors' Retirement Benefit Equity Act, which is now S. 640. That bill, which is cosponsored by Senators Hatch, Mikulski and Durbin, would correct an inequity that exists under current law whereby Federal prosecutors receive substantially less favorable retirement benefits than nearly all others involved in the federal criminal justice system. We have proposed that Assistant United States Attorneys be included as law enforcement officers under the Federal Employees' Retirement System and Civil Service Retirement System. I urge the Republican chairs of the Government Affairs Committee and the Subcommittee on Oversight of Government Management, the Federal workforce, and the District of Columbia to make enactment of that measure a priority rather than allow it to continue to languish without action year after year.

Similarly, I am a cosponsor of the Law Enforcement Officers Retirement Equity Act, S. 819, which was introduced by Senator Mikulski and is cosponsored by Senators Sarbanes and Campbell. This measure would include Customs agents, Treasury agents, and Homeland Security agents whose duties include the investigation or apprehension of suspected or convicted individuals and who are authorized to carry a firearm within the definition of ``law enforcement officer'' for purposes of retirement benefits equity. This measure, likewise, is one that has been introduced and reintroduced but that has not received attention from the Government Affairs Committee or Subcommittee. In the interest of fairness and in recognition of the sacrifices that our officers make every day on our behalf, I urge attention to this measure.

I also note that last Congress the Senate Judiciary Committee favorably reported the Innocence Protection Act of 2002, which included provisions on student loan forgiveness. The bill would have established a program under which full-time prosecutors and public defenders could apply for repayment assistance of the Federal Stafford loans and would have extended the Perkins loan forgiveness program to include public defenders. I commend Senator Durbin for his strong leadership in these matters. Unfortunately, those improvements and encouragements to young lawyers were blocked and are not yet enacted. They need to be. We must ensure that full-time public defenders have equivalent eligibility if the public defense function is to fulfill its constitutionally required role in our criminal justice system.

Specifically, with respect to the Homeland Security Federal Workforce Act that we consider today, I believe the program it establishes for student loan repayment can be an important incentive for our national security programs and understand those to include our law enforcement agents and officers. I regret that the substitute amendment lowers the maximum amount of loan repayment from $80,000 to $60,000 but believe it is an important start and should be used broadly as an incentive to both recruit and retain our national security employees. According to Dr. Paul Light of the Brookings Institution Center for Public Service, in 2002 the Department of Justice and the Department of Defense together awarded student loan repayment to only seven employees. To have its intended effect to recruit and retain outstanding talent to government service, especially national security positions that include law enforcement, we need to have a broad-based incentive through loan forgiveness. Student loans, include law school loans, that saddle talented and public-spirited graduates are a key reason so many opt for higher paying jobs in the private sector. An effective program of student loan forgiveness can help counterbalance that pressure.

I regret that the bill as written limits its application to executive departments like the Department of Justice and does not include Federal courts, which oversee our federal public defenders. Our prosecutors and our public defenders need this assistance and incentive to join and remain as critical components of the criminal justice system. To skew programs to help only one side of the criminal justice system is shortsighted and unfair. For more information on this important topic of loan forgiveness, I urge consideration of pages 37 through 40 of Senate report 107-315.

I am concerned that the Bush administration and its Office of Personnel Management will adopt an unreasonably restrictive view of those Federal employees who contribute to our national security. As I read the substitute amendment, the determination of national security positions is left to the Secretary of the Department of Homeland Security, the Secretary of the Treasury, the Attorney General and the other agency heads. That decision no longer is intended to reside with the Director of the Office of Personnel Management. That is an improvement. I hope that it will lead to a more broadly-based determination of the employment positions eligible for the student loan repayment program to include all who contribute to our national security.

I also look forward to enactment of the fellowship program provided by the bill and the strengthening of our national security workforce. I have been extremely disappointed by the efforts made at the Department of Justice to fulfil the mandates of the USA PATRIOT Act with respect to improving our workforce. As I detailed recently in connection with the confirmation hearing for the nominee to be the Deputy Attorney General, the Attorney General has yet to give us a straight answer with respect to hiring the necessary Arabic translators. That was a need I identified within days of the September 11, 2001 attacks and insisted be addressed in the PATRIOT Act. Over the last 2 years the Department has been both evasive and inconsistent in its answers regarding implementation of those provisions in that Act. Recently the FBI has, again, put out the call for assistance and additional translators. While Senator Voinovich may be correct that these provisions in the bill may be necessary, it is my hope that they will encourage the administration to do that which it could have done but has not under existing authority.

The administration has a long way to go to provide for our national security. I support this bill as another bipartisan effort by the Senate to help it along the way.