Floor Statements

Mr. President, have the yeas and nays been ordered on this judge?

This is the second of the five?

I ask for the yeas and nays.

Mr. President, as I have mentioned a few times over the last few days, and as anyone watching the horrible display here on the floor last night knows, those opposing the confirmation of William Pryor to the Eleventh Circuit have been subjected to a despicable smear. Supporters of the nomination have turned reality on its head. They accuse us of imposing a religious test, but it was a Republican supporter of the nomination who was the only Senator to ask Mr. Pryor what his religion was and to use what they now term a code phrase ``deeply held religious beliefs.''

The scurrilous accusations against opponents of the nomination must be popular with the political gurus at the White House. It has been echoed in recent days by the Committee for Justice, a group closely associated with the President and his family, headed by the first President Bush's White House counsel. I know about the bias against immigrants and against Catholics. That was real discrimination. What is being spread this week is a falsehood uttered for partisan political purposes.

Those who know what real religious discrimination is have spoken out against the advertising campaign. Earlier today I mentioned the members of the Interfaith Alliance, who spoke so eloquently against this sort of smear. Now I am pleased to recognize the Anti-Defamation League, so well known and well respected for their work against religious bigotry, for speaking out against the Committee for Justice's slurs. Abraham H. Foxman, the National Director of the ADL, and Glen A. Tobias, its National Chairman, have written to the head of the Committee for Justice, Mr. Boyden Gray, to object to his advertisements. They explain to Mr. Gray, that, ``[t]o promote the view that Mr. Pryor's opponents object to his Catholic religious beliefs, rather than his views as expressed in his prolific legal writings and speeches and his answers to questions at his Judiciary Committee confirmation hearings, needlessly and wrongfully injects religion into the Senate's `advise and consent' role in the nomination process.''

I could not agree more. I appreciate that the ADL has added its voice to those trying to show the Committee for Justice the error of its ways. I ask unanimous consent the ADL's letter to Mr. Gray be printed in the Record.

Mr. President, the Republican leadership's actions this week were an attempt to create the impression that Senate Democrats are stalling judicial nominations. Rather than work with us to confirm the five consensus judicial nominations that have been before the Senate and available for action all week, the Republican leadership has chosen to schedule cloture vote after cloture vote on the most divisive, controversial and extreme of this President's judicial nominees.

Senators have spoken to the contentious nominations Republicans have tried to force through the Senate confirmation process this week. This is a striking difference from the days in which more than 60 of President Clinton's judicial nominees were stalled and defeated by anonymous holds and secret objections. Just as I made Judiciary Committee blue slips and the process by which the committee consults with home-state Senators public when I chaired the committee in 2001, Democratic Senators have not opposed nominees without coming before the Senate and making known their concerns.

During the 17 months a Democratic Senate majority reviewed this President's judicial nominees we were able to confirm 100 judges. This year, we have cooperated in the confirmation of 45 additional judges. The total confirmations already number 145. We have worked in good faith to reduce judicial vacancies to the lowest level in the last 13 years and to increase the full-time judge on the Federal bench across the country to the highest number in our history. We continue to work in good faith and the Democratic Senators on the Judiciary Committee have joined in reporting at least a dozen additional judicial nominations favorably to the Senate. Working together the Republican and Democratic leadership will be able to schedule debate and votes on those judges.

There are other nominees I frankly do not support and that large numbers of Senators do not support. And yet, as chairman, I did something our Republican predecessor never did, I proceeded on judicial nominations I opposed. Some were confirmed; a few have been so extreme and controversial that they have not been confirmed. Ours is a good record and a fair record.

It is a record that shows we have sought, as Senator Baucus explained recently, to protect the essential independence of the judiciary, to support fair-minded impartial judges, and to protect the essential rights of all Americans.

This week we have witnessed a number of unsuccessful cloture petitions. When the Republicans filed these petitions they knew they would be unsuccessful. The Republican leadership was nonetheless insistent on diverting hours from debate on the Energy bill in order to create partisan talking points. This is another example of how this administration and its aides here in the Senate are seeking to use judicial nominations for partisan purposes. That is most unfortunate.

Republican partisans have changed the practices and rules of the Senate that have helped over time to encourage the White House to work with home-State Senators and to consult with both sides of the aisle in the Senate. When judicial nominations were being made by a Democratic President, the objection of a single home-State Senator would have prevented any action on a judicial nomination. As the chairman of the Judiciary Committee acknowledged in 1999, under the practices of the committee, no nomination opposed by both home-State Senators would proceed. Yet now that the President is a Republican and the home-State Senators are Democrats, the rules are changed and traditional practices are conveniently abandoned.

The big picture is that we have the most confrontational President in recent history. His administration is committed to a plan to pack the Federal courts with nominees of a narrow judicial ideology. Compounding the situation, the Republican leadership in the Senate has decided to assist the administration in this effort at all costs. Longstanding Senate practices and rules have been broken. Home-State Senators are being ignored or overridden if they are Democratic Senators, committee rules are being breached, committee practices of the last 25 years are being ignored in a rush to steamroll the Senate.

Sadly, the most partisans have made detestable arguments and injected religion into the debate. Regrettably, the Senate under its current leadership has abandoned its constitutional role as a check on the Executive.

So we have the most aggressive Administration in recent history and its efforts to pack the courts are being facilitated by efforts of the Republican Senate majority and its willingness to remove all the processes and practices that had been available to the Senate to provide a check and balance. As they remove the mechanisms that had traditionally provided incentives for the Executive to consult with the Senate, the administration has refused to moderate its actions. Instead, Republican partisans have ratcheted up the points of contention and conflict. Rather than work in a bipartisan way to unite the country and maintain a balanced and independent federal judiciary, Republicans insist on the expedited confirmation of every nomination no matter how extreme. With all of the other, traditional screening mechanisms removed, only one Senate procedure is left--the filibuster. All their talk about supposed obstructionism is just that, partisan talking

points. The factors that have led to more filibusters than usual this week have been the actions of the administration and Senate Republicans.

These matters need not be contentious. The process starts with the President. If this administration would work with us, we could avoid these situations. We have and will continue to work with the administration. We would like to be more helpful in the President's identification of nominees and advising him on the selection of consensus nominees so that we can join together in adding those confirmations to the 145 so far achieved.

Mr. President, I am pleased that the Senate is finally considering legislation to renew family farmer bankruptcy protection, which expired on July 1.

More than a month ago, on June 23, the House of Representatives passed H.R. 2465 by an overwhelming vote of 379-3. This legislation will retroactively renew and extend family farmer bankruptcy protection until January 1, 2004. Senator Feingold, Senator Grassley and I have been urging for weeks that the Senate majority leadership bring up this House-passed bill to retroactively renew Chapter 12 of the Bankruptcy Code.

Senator Grassley and I introduced S. 1323, the companion bill to this legislation to temporarily extend these protections that our farmers have come to rely upon. But this is just a short term fix. We need to stop playing politics and permanently reauthorize the Chapter 12 family farmer protections.

Too many family farmers have been left in legal limbo in bankruptcy courts across the country because Chapter 12 of the Bankruptcy Code is still a temporary measure. This is the sixth time that Congress must act to restore or extend basic bankruptcy safeguards for family farmers because Chapter 12 is still a temporary provision despite its first passage into law in 1986. Our family farmers do not deserve these lapses in bankruptcy law that could mean the difference between foreclosure and farming.

In 2000 and 2001, for example, the Senate--then as now controlled by the other party--failed to take up a House-passed bill to retroactively renew Chapter 12. As a result, family farmers lost Chapter 12 bankruptcy protection for 8 months. Another lapse of Chapter 12 lasted more than 6 months in the previous Congress. At the end of June, Chapter 12 lapsed once again. Enough is enough. It is time for Congress to make Chapter 12 a permanent part of the Bankruptcy Code to provide a stable safety net for our nation's family farmers.

Last year, I strongly supported former Senator Carnahan's bipartisan amendment to make Chapter 12 permanent as part of the Senate-passed farm bill. The Senate unanimously approved the Carnahan amendment by a 93-0 vote. Unfortunately, the House majority objected to including the Carnahan amendment in the farm bill conference report and agreed to an extension of Chapter 12 only through the end of 2002. Thus, at the tail end of the last Congress, we had to pass yet another six-month extension of basic bankruptcy protection for family farmers.

In the bipartisan bankruptcy reform conference, we again tried to make Chapter 12 permanent and update and expand its coverage. During our conference negotiations, we adopted most of the Senate-passed provisions, including those authored by Senator Grassley to make Chapter 12 permanent and those authored by Senator Feingold to strengthen Chapter 12 to help our family farmers with the difficulties they face.

Unfortunately, the House majority again scuttled our bipartisan efforts by failing to pass the rule to consider the bipartisan conference report on the Bankruptcy Abuse Prevention and Consumer Protection Act.

It is time to end this absurdity and make these bankruptcy protections permanent. Everyone agrees that Chapter 12 has worked. When this bill passed in the House, Chairman Sensenbrenner praised Chapter 12, but then only proposed reauthorizing it for 12 months. He admitted that the only reason his bill, which we are finally passing today, did not permanently reauthorize Chapter 12 was because it is being used as leverage for the controversial larger bankruptcy reform bill. That is unfortunate.

I will continue to work hard with Senator Grassley, Senator Feingold and others on both sides of the aisle to pass legislation that once and for all

assures our farmers of permanent bankruptcy protection to keep their farms. In the meantime, we should quickly pass this legislation and end another lapse in this basic bankruptcy protection for our family farmers.

Today I am introducing the Permanent Partners Immigration Act, a Senate companion to legislation that Representative Nadler of New York has introduced in the House for each of the last three Congresses. This legislation would allow U.S. citizens and legal permanent residents to petition for their foreign same-sex partners to come to the United States under our family immigration system. I am pleased to be joined in introducing this bill by Senators Jeffords, Feingold, Kennedy, and Kerry.

Under current law, committed partners of Americans are unable to use the family immigration system, which accounts for about 75 percent of the green cards and immigrant visas granted annually by the United States. As a result, gay Americans who are in this situation must live apart from their partners, or leave the country if they want to live legally and permanently with them.

This bill rectifies that situation, while retaining strong prohibitions against fraud. To qualify as a permanent partner, petitioners must prove that they are at least 18 and in a committed, intimate relationship with another adult in which both parties intend a lifelong commitment, and are financially interdependent with one's partner. They must also prove that they are not married to, or in a permanent partnership with, anyone other than that person, and are unable to contract with that person a marriage cognizable under the Immigration and Nationality Act. Proof could include sworn affidavits from friends and family and documentation of financial interdependence. Penalties for fraud would be the same as penalties for marriage fraud-- up to five years in prison and $250,000 in fines for the U.S. citizen partner, and deportation for the alien partner.

There are Vermonters who are involved in permanent partnerships with foreign nationals and who have felt abandoned by our laws in this area. This bill would allow them--and other gay and lesbian Americans throughout our Nation who have come to feel that our immigration laws are discriminatory--to be a fuller part of our society.

The idea that immigration benefits should be extended to same-sex couples has become increasingly prevalent around the world. Indeed, fifteen nations Australia, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom--recognize same-sex couples for immigration purposes.

Our immigration laws treat gays and lesbians in committed relationships as second-class citizens, and that needs to change. It is the right thing to do for the people involved, it is the sensible step to take in the interest of having a fair and consistent policy, and I hope that the Senate will act.

Mr. President, I join my Judiciary Committee colleague Senator Hatch and others in introducing a bill to authorize the minting of a commemorative coin in honor of United

States Supreme Court Chief Justice John Marshall, commonly known as ``the Great Chief Justice.''

Marshall's contributions to our country have been noted by members of the executive and judicial branches. President John Quincy Adams described his father's appointment of Marshall to the Supreme Court as ``one of the most important services rendered by [his father] to his country.'' Fellow Supreme Court Justice Joseph Story described Marshall in the following terms: ``Patience, moderation, candor, urbanity, quickness of perception, dignity of deportment, gentleness of manners, genius which commands respect, and learning which justifies confidence.'' Congress' passage of the ``John Marshall Commemorative Coin Act'' in honor of the upcoming 250th anniversary of his birth would be a fitting complement to these, and other, recognitions of ``the Great Chief Justice's'' extraordinary accomplishments.

Marshall presided over the Supreme Court during the formative years of 1801-1835. Before that time, the Supreme Court played a comparatively minor role in our Federal government. Under Marshall's leadership, the Court evolved into a powerful institution and assumed its role as guardian of the Constitution, and as the arbiter of disputes between the Federal government and the States. As one legal scholar commented: ``It is not inconceivable that the Supreme Court would have remained a minor appendage of our government, and our constitutional development taken a distinctly different course, but for the fact that John Marshall occupied the Chief Justice's chair during the first three decades of the nineteenth century.''

Marshall is considered the founding father of American Constitutional law. To name just a few of Marshall's groundbreaking opinions, Marbury v. Madison the first instance in which the Supreme Court pronounced an act of Congress unconstitutional is the leading precedent for the Court's power to judge the constitutionality of legislative and executive acts. In McCulloch v. Maryland, Marshall asserted the right of the Supreme Court to decide questions involving the conflicting powers of the Federal and State governments, affirmed Congress' authority to act in furtherance of its enumerated powers, and established the standard for determining when the exercise of a Federal power limits the otherwise sovereign power of a State. In Cohens v. Virginia, Marshall established the authority of the Federal judiciary to review decisions of the highest State courts. As a final illustration of Marshall's many important judicial opinions, in Gibbons v. Ogden, he set forth Congress' power to regulate commerce among the States and with foreign nations.

Aside from the specific constitutional principles Marshall established while on the Court, he made many other important contributions to American constitutional law. For example, Marshall advocated that judges, as ultimate guardians of the Constitution, should be above politics and that the role of the Nation's courts was to mitigate the effects of factional politics. Moreover, Marshall adopted an approach to constitutional interpretation termed ``fair construction'' which struck a middle ground between an overly restrictive, and an overly broad, reading of the Constitution because he feared that strict construction would ultimately weaken the Constitution and, in due course, the Nation.

In closing, it is difficult to overstate Chief Justice Marshall's contributions to our Nation. Many years ago, when I read Marshall's opinions in my first year of law school, I admired the Chief Justice. Now, having served in Congress and worked within the principles Marshall established, I find him all the more admirable. A commemorative coin in his honor would be a fitting tribute to ``the Great Chief Justice.''

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

Today I am introducing the Permanent Partners Immigration Act, a Senate companion to legislation that Representative Nadler of New York has introduced in the House for each of the last three Congresses. This legislation would allow U.S. citizens and legal permanent residents to petition for their foreign same-sex partners to come to the United States under our family immigration system. I am pleased to be joined in introducing this bill by Senators Jeffords, Feingold, Kennedy, and Kerry.

Under current law, committed partners of Americans are unable to use the family immigration system, which accounts for about 75 percent of the green cards and immigrant visas granted annually by the United States. As a result, gay Americans who are in this situation must live apart from their partners, or leave the country if they want to live legally and permanently with them.

This bill rectifies that situation, while retaining strong prohibitions against fraud. To qualify as a permanent partner, petitioners must prove that they are at least 18 and in a committed, intimate relationship with another adult in which both parties intend a lifelong commitment, and are financially interdependent with one's partner. They must also prove that they are not married to, or in a permanent partnership with, anyone other than that person, and are unable to contract with that person a marriage cognizable under the Immigration and Nationality Act. Proof could include sworn affidavits from friends and family and documentation of financial interdependence. Penalties for fraud would be the same as penalties for marriage fraud-- up to five years in prison and $250,000 in fines for the U.S. citizen partner, and deportation for the alien partner.

There are Vermonters who are involved in permanent partnerships with foreign nationals and who have felt abandoned by our laws in this area. This bill would allow them--and other gay and lesbian Americans throughout our Nation who have come to feel that our immigration laws are discriminatory--to be a fuller part of our society.

The idea that immigration benefits should be extended to same-sex couples has become increasingly prevalent around the world. Indeed, fifteen nations Australia, Belgium, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom--recognize same-sex couples for immigration purposes.

Our immigration laws treat gays and lesbians in committed relationships as second-class citizens, and that needs to change. It is the right thing to do for the people involved, it is the sensible step to take in the interest of having a fair and consistent policy, and I hope that the Senate will act.

Mr. President, I join my Judiciary Committee colleague Senator Hatch and others in introducing a bill to authorize the minting of a commemorative coin in honor of United

States Supreme Court Chief Justice John Marshall, commonly known as ``the Great Chief Justice.''

Marshall's contributions to our country have been noted by members of the executive and judicial branches. President John Quincy Adams described his father's appointment of Marshall to the Supreme Court as ``one of the most important services rendered by [his father] to his country.'' Fellow Supreme Court Justice Joseph Story described Marshall in the following terms: ``Patience, moderation, candor, urbanity, quickness of perception, dignity of deportment, gentleness of manners, genius which commands respect, and learning which justifies confidence.'' Congress' passage of the ``John Marshall Commemorative Coin Act'' in honor of the upcoming 250th anniversary of his birth would be a fitting complement to these, and other, recognitions of ``the Great Chief Justice's'' extraordinary accomplishments.

Marshall presided over the Supreme Court during the formative years of 1801-1835. Before that time, the Supreme Court played a comparatively minor role in our Federal government. Under Marshall's leadership, the Court evolved into a powerful institution and assumed its role as guardian of the Constitution, and as the arbiter of disputes between the Federal government and the States. As one legal scholar commented: ``It is not inconceivable that the Supreme Court would have remained a minor appendage of our government, and our constitutional development taken a distinctly different course, but for the fact that John Marshall occupied the Chief Justice's chair during the first three decades of the nineteenth century.''

Marshall is considered the founding father of American Constitutional law. To name just a few of Marshall's groundbreaking opinions, Marbury v. Madison the first instance in which the Supreme Court pronounced an act of Congress unconstitutional is the leading precedent for the Court's power to judge the constitutionality of legislative and executive acts. In McCulloch v. Maryland, Marshall asserted the right of the Supreme Court to decide questions involving the conflicting powers of the Federal and State governments, affirmed Congress' authority to act in furtherance of its enumerated powers, and established the standard for determining when the exercise of a Federal power limits the otherwise sovereign power of a State. In Cohens v. Virginia, Marshall established the authority of the Federal judiciary to review decisions of the highest State courts. As a final illustration of Marshall's many important judicial opinions, in Gibbons v. Ogden, he set forth Congress' power to regulate commerce among the States and with foreign nations.

Aside from the specific constitutional principles Marshall established while on the Court, he made many other important contributions to American constitutional law. For example, Marshall advocated that judges, as ultimate guardians of the Constitution, should be above politics and that the role of the Nation's courts was to mitigate the effects of factional politics. Moreover, Marshall adopted an approach to constitutional interpretation termed ``fair construction'' which struck a middle ground between an overly restrictive, and an overly broad, reading of the Constitution because he feared that strict construction would ultimately weaken the Constitution and, in due course, the Nation.

In closing, it is difficult to overstate Chief Justice Marshall's contributions to our Nation. Many years ago, when I read Marshall's opinions in my first year of law school, I admired the Chief Justice. Now, having served in Congress and worked within the principles Marshall established, I find him all the more admirable. A commemorative coin in his honor would be a fitting tribute to ``the Great Chief Justice.''

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

Mr. President, Larry Small, Secretary of the Smithsonian, has provided a letter to the majority and minority leaders that clarifies the intentions of the Smithsonian with regard to Section 5 of

Mr. President, yesterday the assistant minority leader made some cogent observations about how the Senate is being required to expend hours on matters that are leading nowhere and take away from debate on the Energy bill. If the Republicans were truly serious about finishing the Energy bill this week, they would not be scheduling hours of debate on contentious judicial nominations. Nor for that matter would they break for several hours yesterday to have a pep rally at the White House. From the Senate schedule, an objective observer would have to think it is more driven by partisanship and trying to score political points than a desire to make progress on the business of the Senate and on the issues that are the most important to the American people.

This week we have not proceeded to the foreign operations appropriations bill, which contains a number of matters of overriding importance to the country and the world, although Chairman McConnell and I have been ready to proceed. We have not proceeded to the energy and water appropriations bill or the other appropriations matters that need to be concluded soon for the Government and Government programs to continue to operate in the fiscal year that will soon be upon us. Usually we devote July to appropriations matters but the Republican leadership has chosen to take this week off in that regard.

Today we must again return to the controversial nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. The last cloture vote on this nomination was scheduled on May 8. The only thing that has changed since that unsuccessful vote is that the administration and some Republicans in the Senate have ratcheted up their unprecedented partisanship and the use of judicial nominees for partisan political purposes.

I spoke yesterday about the new low to which some Republican partisans have stooped in political ads and charges that should offend all Americans. I again challenged Republicans and the administration to disavow those despicable efforts but, instead, they are choosing to continue to support the smear campaign of insult and division. Yesterday I inserted into the Congressional Record some of the articles and editorials that comment upon this most troubling development.

Yesterday I also had the opportunity to meet with representatives of the Interfaith Alliance. I thank them for condemning these unwarranted attacks and for standing up for the Constitution and the first amendment rights of all Americans. Reverend Gaddy, Father Drinan, Reverend Veazy, Right Reverend Dixon, and Rabbi Moline understand what is afoot and have spoken out in the best tradition of this country, and I thank each of them.

I do not expect the vote on this nomination to change today. Nothing has been done to accommodate Senators' concerns. No arrangements have been made to provide access to the documents requested in connection with this nomination that are available to the administration and that Mr. Estrada said he had no objection be provided. Thus circumstances have not changed since the first vote on this nomination or the most recent vote back in May.

There continues to be, in the phrase favored by the White House, ``revisionist history'' regarding the precedent of providing the Senate with legal memos to the Solicitor General and by the Solicitor General and similar documents in connection with nominations for both lifetime and short-term posts. Senator Schumer, Senator Kennedy, and I have detailed those earlier precedent in earlier debate. It has not been refuted. It cannot be refuted. Facts are stubborn things. Nonetheless the administration and Republicans continue to ignore the facts seeking political gain and have chosen to use Mr. Estrada as a pawn in their efforts. That is unfortunate and regrettable.

We have worked hard to try to balance the need for judges with the imperative that they be fair judges for all people, poor or rich, Republican or Democrat, of any race or religion. This has been especially difficult because a number of this President's judicial nominees have records that do not demonstrate that they will be fair and impartial. In response, the White House and its allies have bombarded the airwaves with all manner of misleading information to try to bully the

Senate into rolling over and rubber-stamping every one of its these nominees.

The claims that we are anti-Hispanic or anti-Catholic or anti-woman or anti-Christian are part of Republican politics of attack and division as taught by Presidential advisor Karl Rove and as implemented by the administration's allies in the Senate and C. Boyden Gray and his so-called Committee for Justice, who paid for the most recent volley of ads. These dirty tricks are nothing new to this gang. Earlier this year, Mr. Gray and his group ran ads insinuating that Democrats oppose the nomination of Mr. Estrada because he is Hispanic, ads which were refuted by the courage of many Latino leaders and Latino civil rights groups which spoke out against confirming Mr. Estrada. Mr. Gray's group recently ran print and radio ads calling Democratic Senators anti- Catholic because they oppose President George W. Bush's most controversial and divisive appellate nominee, Alabama Attorney General Bill Pryor. These are despicable and false charges intended to distract the public from the serious evidence that Mr. Pryor was chosen because he would be an unfair, results-oriented judge. This type of demagoguery, in its shameful effort to mislead and inflame, should be disavowed.

The cynical political games are all the more disappointing from a President who campaigned claiming that he was going to be a uniter not a divider and set a new tone in Washington. The reality is that on nominations this administration goes out of its way to choose divisive nominees. The tone set by the White House has been unilateral and been marked by a refusal to consult with Senators in advance of nominations and to accommodate concerns raised.

Senate Democrats have more than demonstrated our good faith. We inherited 110 vacant seats in the Federal judiciary in July 2001, vacancies that were increased and perpetuated under Republican control of the Senate. In 17 months, Democrats worked hard to have the Senate confirm 100 of President Bush's judicial nominees.

Second, as of July 28, 2003, the Senate has confirmed 140 of President Bush's judicial nominees, including 27 circuit, or appellate, nominees. This is more circuit court judges confirmed at this point in his Presidency than for his father, President Clinton, or President Reagan at the same point in their Presidencies. It is more judges than a Republican-controlled Senate allowed be confirmed in any 3-year period serving with President Clinton.

We are finally below the number of vacancies Republicans inherited in 1995, and earlier this year we reached the lowest number of vacancies in the Federal courts in 13 years. This from the 110 vacancies that Democrats inherited from Republican obstruction. Indeed, today there are more full-time Federal judges serving on the Federal courts than at any time in U.S. history.

These confrontations and problems with nominations are of the White House's own making. It is true that some of this President's judicial nominees with troubling records have not been confirmed. It is also true that Democrats have supported as many nominees as we could responsibly. Democrats have not been spoiling for a fight.

We did not seek out the nomination of Judge Pickering or Judge Owen. But we treated them fairly and much more fairly than Republicans had treated President Clinton's nominees to the Fifth Circuit by according them hearings, debate, and a committee vote. They were rejected. For the first time in history a President nonetheless renominated those rejected by the Senate Judiciary Committee. That it was unprecedented is part of the difficulty with these controversial and divisive nominees. Justice Owen is someone whom Republican judges on the Texas Supreme Court criticized as a judicial activist.

We did not seek out the nomination of Miguel Estrada, but we accorded him a hearing and sought to consider the nomination responsibly. We are being required to vote without all the information we need. The committee did vote, which was more than was accorded President Clinton's nominees to the DC Circuit. The Senate is resisting a vote without knowing more about Mr. Estrada's work and judgment. Democrats did proceed to vote on and confirm the nomination of another to the DC Circuit in spite of Republican obstruction of President Clinton's nominations to that important court.

We did not seek the controversial nominations of Jeffrey Sutton, Timothy Tymkovich, or Dennis Shedd, but we proceeded with them. They each received more negative votes than required to prevent cloture, but we proceeded. We proceeded on Deborah Owen, Michael McConnell, and a number of strongly conservative and controversial nominees.

We have not chosen these fights this week. They have been staged by the Republican leadership. We have fought them for the sake of the American people, the independence of the Federal courts, and to preserve the Senate as a check on this expansive court packing by the Executive.

Republican partisans have responded to the sincere concerns of numerous Senators about the records of controversial nominees by demanding that Senate rules be changed to force votes on the most extreme nominees. This effort is in the wake of repeated violations by Republicans of longstanding committee rules and agreements to allow sufficient time to review the FBI investigations and legal careers of the President's nominees for these powerful positions with lifetime tenure. With the Constitution's guarantee of lifetime jobs for judges, we cannot correct mistakes made in a slipshod confirmation process.

In their quest to limit public scrutiny, Republicans have invented interpretations of the Constitution without any basis in tradition or history. Although they now contend that the Constitution requires an up-or-down vote on every judicial nominee, the plain facts are that they blocked up-or-down votes on more than 60 of President Clinton's judicial nominees and more than 250 of his nominees to short-term positions in his administration.

Did they engage in wholesale constitutional violations during President Clinton's Presidency? I did think their one-person filibusters by anonymous, secret holds were unfair, and that is why I made blue slips public as chairman and have supported ending anonymous holds.

Our Democratic Senate leadership worked hard earlier this year to correct some of the problems that arose from some of the earlier hearings and actions of the Judiciary Committee in violation of rules that have served the committee and the Senate well for a quarter of a century. However, once again just last week, the Republican members of the Judiciary Committee decided to override the rights of the minority and violate longstanding committee precedent under rule IV in order to rush to judgment even more quickly for this President's most controversial nominees. That was another sad day in committee. And yet Republicans persist in their obstinate and single-minded crusade to pack the Federal bench with right-wing ideologues, regardless of what rules, longstanding practices, personal assurances, or relationships are broken or ruined in the process.

These rules and precedents are not just ``inside baseball.'' They are the core of the rule of law in our system of government. If those elected will not follow rules to confirm judges or create statutes, then we have little hope that the rule of law will prevail in our courts and in our country. Republicans in the Senate seem intent on sacrificing the role of the Senate as a check on the Executive for the short-term political gain of this White House.

The Framers expressly protected Members' freedom of debate in the Constitution. The Constitution also gives the Senate the power to devise its procedural rules. There is no requirement in the Constitution that matters be decided by simple majorities or that all bills or nominations be brought to a vote.

As the Supreme Court has recognized that ``Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history or our cases that requires a majority to always prevail on every issue.'' Gordon v. Lance, 403 U.S. 1 at 6, 197l, finding constitutional local voting rules requiring a majority of 60 percent to pass a measure. The notion that every nominee is

entitled to a vote on the Senate floor is defied by decades of practice over the past two centuries.

Filibusters and other parliamentary tactics to delay matters were known to the Framers. There was even a filibuster in the first Congress over locating the Capitol.

More importantly, the Framers created the Senate to be unique from the House in the protections for the rights of each Senator and the stability and continuity in this body. Unlike the House, the Senate is not reborn every 2 years but two-thirds of its Members remain through every election. The Framers gave the Senate special powers, as a check on the executive branch, to confirm nominees or to decline to do so, affirmatively or by inaction.

History shows that since the early 19th century, nominees for the highest court and to the lowest short-term post have been defeated by delay, while others were voted down. Not even President Washington's nominees were all confirmed. One of President Washington's short-term nominees, Mr. Benjamin Fishbourn's nomination to the port of Savannah, was defeated on the floor of the Senate because of the opposition of both Georgia Senators. Many Supreme Court nominations were defeated through inaction or delay, rather than by failed confirmation vote.

For 160 years, until 1949, there was no way, other than through unanimous consent, to bring a judicial or executive nomination to a vote. For the past 86 years, the Senate has required a vote of two- thirds to end debate on changing any rule of procedure, made explicit in 1959. For the past 54 years, the Senate has required more than a simple majority, ranging from two-thirds to three-fifths, to bring a judicial nomination or legislation to a vote. For the past 25 years, the Senate has required three-fifths of the Members sworn to vote to end debate on any matter, other than amending the rules, two-thirds.

The Senate and the Nation not only have survived all of these years while respecting freedom of debate but have thrived, strengthening our democracy by ensuring a forum that honors the passionate views and interests of a minority of its members while checking the caprice of temporary majorities, particularly regarding the lifetime appointments to our Federal courts.

As the late, eminent Professor Lindsay Rogers observed, ``the fact of the matter is . . . that, as the much vaunted separation of powers now exists, unrestricted debate in the Senate is the only check upon president and party autocracy.'' The American Senate 164, 1926. We would all do well to remember that, as the scholar Charles Black observed, ``If a President should desire, and if chance should give him the opportunity, to change entirely the character of the Supreme Court, shaping it after his own political image, nothing would stand in his way except the United States Senate.''

If we give up the genius of the checks and balances of the Constitution as embodied in the role of the Senate exercising its independent judgement to confirm or reject lifetime appointees, by vote or inaction, the American people will be the losers. Yet some Republicans seem intent on inflicting more damage, to the process, to the Senate, and to the independence of the Federal courts.

Republicans claim there has never been a filibuster of a circuit court judge. This is false. As recently as 2000, Senator Frist and his Republican colleagues filibustered two of President Clinton's circuit court nominees. One of those nominees, Judge Richard Paez, a Mexican American nominated to the Ninth Circuit was subject to filibuster procedures and other blocking tactics that prevented him from being confirmed for more than 1,500 days. That was a circuit court filibuster, even though it was ultimately unsuccessful. At the same time, Republicans were simultaneously filibustering the nomination of Ninth Circuit nominee Marsha Berzon. This was in addition to nearly 2 dozen other circuit court nominees who were languishing or defeated in committee without a vote in committee or on the floor as well as dozens of other district court nominees.

Republicans who now claim that the Constitution requires a majority vote on every judicial nominee should explain how Republicans through secret objections, blocked votes on more than 60 of President Clinton's judicial nominees, including nearly 2 dozen circuit court nominees. For Republicans to claim that the process is now broken because a few of President Bush's circuit court nominees are being debated in the light of day, rather than defeated in the dark of night, is breathtaking in its hypocrisy.

Republicans also blocked more than 250 of President Clinton's nominees to short-term positions in his administration. For example, they successfully debated to death his nominations of an ambassador, Sam Brown, and of Dr. Henry Foster to be Surgeon General, in addition to the other more than 300 judicial or executive branch nominees blocked in the dark of night by one of more Republicans. I mention this because I just cannot imagine how they can get away with these false claims, which the most recent history of nominations clearly refutes. This data is publicly available.

The Senate, unlike the House, has never had a rule allowing a simple majority to force a vote on any matter. Only for the past 54 years have Senate rules allowed fewer than the agreement of all Senators to force a vote on a nomination, reducing the number needed to end debate from unanimous agreement to the current number, 60 votes. These rules help ensure that lifetime appointees have wide, rather than narrow, support because consensus nominees are more likely to be fair than extremely divisive ones.

The nomination we vote on today, that of Mr. Estrada, is another divisive nomination of this President. Despite the overtures that have been made to the White House to ask them to honor past precedent and provide Mr. Estrada's memos to the Senate, the White House has refused to budge. Instead of honoring that precedent, the White has sought to break other precedents and understandings in the quest to win confirmation at any cost.

Just last week, the White House signaled again its refusal to seek compromise or accommodation for the sake of the fairness of the courts. The President nominated two more controversial individuals to the DC Circuit. This is just one more sign in a long line that this White House is determined to continue to divide the American people with its nominations and to pack the courts in order to win judicial victories for its ideological agenda and its allies at the expense of fairness for all.

Since the administration has not provided the information requested more than a year ago with respect to Mr. Estrada, nothing has been done to alleviate concerns about this nomination.

Mr. President, I must say I completely agree with the senior Senator from Nevada on this. The senior Senator from New Mexico, who was in the Chamber, expressed concern about time being taken talking about William Pryor's nomination. We are not the ones who scheduled William Pryor's nomination in the middle of the Energy bill.

The distinguished senior Senator from Utah, chairman of the Senate Judiciary Committee, is in the Chamber. He knows the concerns expressed by members of the committee that this nomination was voted out of committee before investigations underway involving Mr. Pryor were completed.

It is passingly strange that when we say that after the nomination has been moved prematurely out of the Senate Judiciary Committee with pending questions, very serious questions involving the conduct of that nominee unresolved, but it gets sort of rocketed onto the floor. Then we are asked to lie down and just let it go through without even saying why we object.

First, the rules of the Senate Judiciary Committee itself were violated. Rule 4 was violated. The matter is still coming up. The distinguished majority leader and the distinguished Democratic leader had a conversation in which the distinguished majority leader assured us that this would never happen again. Within a few weeks of that assurance, it happens again, an assurance that no nomination of this nature would come up if it was sent out

in violation of rule 4 of the Senate Judiciary Committee. It was. The nomination is up. And we don't ask questions about it?

Then we hear some on the other side say: Our judges are being blocked. Well, it is true; 2 out of 140 have been. But at the same time, they want to quietly voice vote all these other judges through so that nobody will notice that we are passing judges. One of the reasons we have asked for rollcall votes on a number of them is to show how easy it is to pass a judge where there is a consensus.

In those rare instances where people have actually been consulted about a judge and where a judge has been nominated who is not going to be an ideological arm of either political party but, rather, be an independent judge, they go through easily.

In this case, the Republican leadership--not the Democratic leadership, the Republican leadership--filed a cloture motion on the nomination of William Pryor to the Eleventh Circuit. So we are going to have this premature debate.

I hope there is one aspect on which we can get closure in the Senate. In connection with this nomination, supporters of the administration have leveled the unfounded charges that Democratic Senators are anti- Catholic. This charge is despicable. I have waited patiently for more than 2 years for Republican Senators to disavow such charges. So far, only one has, the distinguished Presiding Officer. This is a despicable, slanderous charge. It is one calculated to throw us back into a time that maybe some in this Chamber may not remember. Some of us have parents who do remember when anti-Catholic bias ran rampant in this country.

It is outrageous, of course, that Republicans will not knock down these slanderous charges of anti-Catholicism and allow them to go forward. This slander and the ads recently 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 the President's family are personally offensive. They have no place in this debate or anywhere else.

For a charge of anti-Catholicism to be leveled against any Member of this Chamber, Republican or Democratic, is wrong. But for those who stay silent and allow it to go forward, who take part in it, the only way for a lie to get traction is for people to remain silent. And those who could stop this lie in a hurry remain silent.

I challenged the Republican Senators on the Judiciary Committee who are so fond of castigating special interest groups and condemning every critical statement of a Republican nominee as being somehow a partisan sneer, to condemn this ad campaign and the injunction of religion into these matters. Only the junior Senator from Georgia now presiding responded to that challenge. Other Republican members of the Judiciary Committee and of the Senate have either stood mute in the face of these obnoxious and disgusting and scurrilous charges or, worse, they have fed the flames.

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 and those who have played wedge politics with religion. I hope the Republican leadership of the Senate and of the Judiciary Committee will finally disavow the contention that any Senator is being motivated in any way by religious bigotry, just as I and others on this side of the aisle have defended members of the Republican side of the aisle when they have been attacked on their religion. We find it so painful that not only do they remain silent when people on this side of the aisle are attacked on their religion but in some instances have even continued the attack in statements they have made outside this Chamber.

When we began debate on the nomination of Miguel Estrada in February, I made a similar request with respect to the charges that Senators were being anti-Hispanic. The other side never withdrew that ridiculous charge. Instead, the special interest groups and others trying to intimidate the Senate into voting on that nomination broadened the attack to include Hispanic members of the Congressional Hispanic Caucus, MALDEF, the Puerto Rican Legal Defense and Education Fund, past presidents of the Hispanic National Bar Association, and many other Hispanic and civil rights organizations that opposed the Estrada nomination. It was so bad that one Hispanic organization that supported Miguel Estrada issued a statement that the charge was wrong, that they certainly didn't believe it applied to any Member of the Senate, and urged the Republicans to stop it.

They didn't, but they were urged by other Hispanic groups to stop it. The demagoguery, divisive and partisan politics being so cynically used by supporters of the President's most extreme judicial nominees needs to stop. There are at least five judicial nominations on the Executive Calendar on which we can join as Democrats and Republicans. I would be willing to bet that they would be confirmed by an overwhelming vote.

I remember when we had a circuit court of appeals judge nominated by President Bush. For a month, the Democrats tried to get a vote on that nominee. For a month, one Republican had an anonymous hold and refused a vote to go forward. There are people we could vote on. Why don't they? We took a month to get the Republicans to release the anonymous hold on Judge Edward Prado, who was nominated by President Bush. Interestingly enough, I finally found out why. They didn't want a vote. They wanted to attack us for not voting on him, even though we were the ones asking to vote on him. It is Alice in Wonderland to the tenth power.

Now, the assistant minority leader suggested going to these matters and making progress. I have suggested scheduling rollcall votes on these nominees and making further bipartisan progress. Instead, we waste time on cloture motion after cloture motion after another cloture motion in connection with the most controversial of this President's nominees. Now I find out why. I am told by members of the press that the Republicans said this was supposed to be our issue this week. We are not getting appropriations bills done, we are not going to finish the Energy bill, or do anything else, so we are going to tie up the Senate with a number of cloture votes. Then they all went out with their talking points with members of the press to tell them how terrible it was that we were having these votes, which they scheduled.

Yes.

Mr. President, the Senator is absolutely right. The distinguished assistant Democratic leader pointed out just a short while ago that we have had a number of votes on the Energy bill, which were very close votes, which could have gone either way. We had a good debate going and we were actually voting. Now, instead we spend more time in quorum calls and bringing up judicial votes that are not going anywhere.

I must say to my friend from North Dakota, as ranking member of the Judiciary Committee, if we would have taken the time that has been wasted on things not going anywhere, if we had taken time to vote through some of the judges, where I believe we could get consensus of both Democrats and Republicans, and vote and confirm them and let them go to the bench, that would be a better way. We spent a whole month, as I mentioned, trying to get the Republicans to allow a vote on Judge Edward Prado for a circuit court of appeals position. He had been nominated by President Bush and was strongly supported by President Bush. For a month, they blocked it from going to a vote. We found out afterward it was because they went to the same members of the press they have

gone to this week and they said: This is terrible. The Democrats aren't allowing us to vote.

Democrats, time after time, came on the Senate floor and said we can have unanimous consent to go to a vote, and they objected.

No. In fact, I say to my friend that the one time we did try to bring one of President Bush's circuit court nominees to the floor and ask to have him considered, for a month we were not allowed to because the Republicans objected. I have not done a whip check, but I am willing to bet that if we brought them to a vote, and they are on the calendar now, they would get confirmed. Even in the time we have had quorum calls and discussions on this today, we could have brought them up and had a series of 10-minute rollcall votes. And I am willing to bet we would have passed them all.

Mr. President, I answer my friend from North Dakota that we have been willing to move forward on amendments on the Energy bill. We are not the ones who brought up the extraneous cloture votes which are not going anywhere. Maybe some want to get off the Energy bill. I note that the distinguished Senator mentioned Senator Cantwell's amendment. I was very proud to support that amendment. It was excellent and, as the Senator said, it would protect the consumers.

It was interesting because, at one point, she had the amendment won, and you heard the snap, crackle, and pop, not of Rice Crispies but the arms being twisted and snapped as votes were being changed. Most of the power company lobbyists were saying to the leadership on the other side that you cannot allow that to go through, and votes were being changed. It came within two votes.

I agree with the Senator from North Dakota that people are going to look in the rear view mirror and say Senator Cantwell was right, and that should have been allowed to go through.

Mr. President, it is scheduled for tomorrow under the normal circumstances, unless there has been an agreement entered into otherwise. That would be an hour after we come into session. Unless the established quorum is waived, we could go to a vote.

Mr. President, I tell my friend from North Dakota, not only would it be an appropriate course because cloture is not going to be invoked primarily because, for one major reason because of his qualifications, but also because the rules of the Judiciary Committee were not followed in having this nomination go out.

We could very well at that time, if we want to get judges through, not have this cloture vote, which is not going to go anywhere. We have James Cohn, of Florida. During this time we could have voted on him to be a judge. We could have voted on Frank Montalvo, of Texas. These are nominees I would support and I think a majority of us would support. Xavier Rodriguez, of Texas, could have been voted on. The Republicans have made no effort to bring them up, even though we told them they could. H. Brent McKnight, of North Carolina--these are people we would allow to being brought up. We would allow the home State Senators to take a few minutes to speak about them. In fact, they could bring them all up and do them in a stack of 10-minute rollcall votes. They would have gone through in the amount of time of some our quorum calls today.

Mr. President, the distinguished Senator from Pennsylvania has asked if I will yield for a question. I will yield without losing my right to

the floor or my right to reclaim the floor within 1 minute.

Mr. President, I have the floor. I am not on the Energy Committee.

Mr. President, let me respond this way. I have been in the Senate for 29 years. I love the Senate. I love following our normal course of doing business. The Senator from Pennsylvania has raised an appropriate question. I suggest that is a question that should be directed to the Republican leader and the Democratic leader and the chairman and the ranking member of the committee, which is the normal course of doing business, the way we have always done it. Naturally, I would be guided by the direction of the Republican and Democratic leaders, not only in the Senate but in the committee.

Obviously, I am not in a position to speak for the Republican or Democratic leaders or the Republican chairman or Democratic ranking member on this issue. The Senator from Pennsylvania is perfectly within his rights in raising the issue, and I hope that might prompt a discussion with them.

I yield.

Mr. President, I will answer this way: We have diverted some 6 to 10 hours off the Energy bill now. I see my friend, the senior Senator from Nevada. I know over the years he has worked very closely with his counterpart on the Republican side and usually tried to work out a finite list of amendments to the Energy bill. Again, based on my experience, my years in the Senate--almost three decades--I find usually if we stay on a bill that is your important bill, if you do not keep going off it for the trade agreements about which the Senator from North Dakota spoke, or these various cloture motions, if we keep going off these bills, then nobody feels the pressure to work things out.

On the other hand, if we just stay on the bill and people bring up amendments, we will find which ones are close amendments and actually have a chance of being adopted and which ones are not going to be adopted. Usually the Republican and Democratic leadership get together and whittle down the finite number. Then, as the Senator from Pennsylvania suggested, we are usually in the position to find a time for a final vote.

My suggestion is that we use what he has suggested but stay on the Energy bill, work toward a finite list of amendments. We will then know when they are going to take place and how much time they are going to take. And then we will know when we are going to have final passage. We can do that and then go back to anything else they want.

If we are going to keep going back to these judges--as I said, we so far stopped two of President Bush's judges and confirmed 140, unlike the 60 of President Clinton's judges who were stopped by the Republicans, usually because someone objected anonymously. We have done it out here on the floor where we stood up on the nomination.

I am one Senator who actually takes seriously the role of the Senate. There are only 100 of us, and we are given the privilege to represent 270 million Americans. But we also have a very unique place. There is no other parliamentary body in the world quite like the Senate. We have this unique spot where we have checks and balances, especially on confirmations. The Constitution does not say advise and rubberstamp; it says advise and consent.

Nobody should underestimate our commitment to the independence of the Federal judiciary and to our constitutional duty to advise and consent on these lifetime appointments. Nobody should underestimate our commitment to the protection of the rights of all Americans-- Republicans and Democrats, Independents--in every part of this Nation.

The Senate was intended to serve as a check and balance in our unique system of Government. We fail our oaths of office as Senators if we allow the Federal judiciary to be politicized, if we cast votes that would remove their independence.

Mr. President, I ask unanimous consent that it be in order to yield to the distinguished senior Senator from California.

Mr. President, then I will continue my speech.

Mr. President, then I would----

Mr. President, I would renew my----

I have the floor. I would renew my request.

Along with the distinguished senior Senator from Utah, I renew my request that I be allowed to yield now to the distinguished senior Senator from California.

For how long?

I yield to the distinguished senior Senator from Nevada for a question.

Mr. President, on behalf of both myself and the Senator from Utah, Mr. Hatch, I ask unanimous consent that the distinguished Senator from California be recognized for no more than 15 minutes; the distinguished Senator from Utah be recognized for up to an hour; and then the distinguished senior Senator from Illinois be recognized for up to 40 minutes.

Mr. President, I tried to accommodate the Senator from Utah.

Who is trying to accommodate the Senator from Vermont. I will try to do that even though the Senator from Utah wants to speak longer than I thought. But he is, after all, the chairman of the committee. I was willing to stop my speech at this point to accommodate him. We have probably taken longer in making these unanimous consent requests.

Mr. President, I ask that that be the order; that I complete my speech, yield to the Senator from California, and then the Senator from Utah be recognized.

Mr. President, I suggest to my colleagues that we do this, as we have offered before: We allow the Senator from California to speak, and then the Senator from Utah, and then, as we have done before, we go back and forth.

I ask unanimous consent that it be in order to recognize the Senator from California, and then be in order to recognize the Senator from Utah, Mr. Hatch.

Mr. President, I would renew any request.

I renew my request.

Mr. President, I will withhold my request for the moment without losing my right to the floor so that the Senator from Utah might make a point.

Mr. President, regaining my right to the floor, I probably could have completed my speech during this

time, but I was trying to save everybody some time. I was trying to accommodate the distinguished senior Senator from Utah, who is the chairman. I think everybody has agreed now to the request I have made.

I would renew my request that the distinguished Senator from California be recognized, the ball then goes back to the distinguished Senator from Utah.

Well, Mr. President, I know everyone stands riveted to hear the rest of my speech. I was trying to complete the speech so the Senator from California could be recognized.

Mr. President, sometimes after all this work, the Senate actually does work. Those who are watching someday will explain what exactly has happened.

To continue, the Senate has already confirmed 140 of this President's judicial nominees, including 27 circuit court nominees. We could have confirmed at least five more this week if the Republican leadership would have worked with us to schedule votes on them. That stands in sharp contrast to the treatment of President Clinton's nominees by a Republican-controlled Senate from 1995 through 2001, when judicial vacancies on the Federal courts were more than doubling from 16 to 33.

Opposition to Mr. Pryor's nomination is shared by a wide spectrum of objective observers. Mr. Pryor's record is so out of the mainstream that, even before last month's hearing, a number of editorial boards and others weighed in with significant opposition.

Last April, even the Washington Post, which has been exceedingly generous to the Administration's efforts to pack the courts, termed Mr. Pryor ``unfit''. Both the Tuscaloosa News and the Hunstville Times wrote in early May against the nomination. Other editorial boards across the country spoke out, including the San Jose Mercury News and the Pittsburgh Post-Gazette. Since the hearing, that chorus of opposition has only grown and now includes the New York Times, the Charleston Gazette, the Arizona Daily Star and the Los Angeles Times. I ask unanimous consent to print the full package of these editorials and op-eds in the Record.

We have also heard from a number of organizations and individuals concerned about justice before the Federal courts. The Log Cabin Republicans, the Leadership Conference on Civil Rights, the Alliance for Justice, NARAL and many others have provided the committee with their concerns and the basis for their opposition. We have received letters of opposition from organizations that rarely take positions on nominations but feel so strongly about this one that they are compelled to write, including the National Senior Citizens' Law Center, the Anti-Defamation League and the Sierra Club. I ask unanimous consent to print a list of the letters of opposition we have received in the Record.

The ABA's evaluation also indicates concern about this nomination. Their Standing Committee on the Federal Judiciary gave Mr. Pryor a partial rating of ``not qualified'' to sit on the Federal bench. Of course this is not the first ``not qualified'' rating or partial ``not qualified'' rating that this administration's judicial nominees have received. As of today, 20 of President Bush's nominees have received some form of ``not qualified'' rating. Perhaps that is a reflection of the ideological basis for so many of these nominations, and the concern on the part of some on what has been a rather compliant ABA committee that these nominees cannot be fair to every litigant who may come before them.

Like Jeff Sutton, Bill 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.

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. While this is a sign to most people of the extremism, Mr. Pryor trumpets his involvement in these cases and is proud of his work to limit Congress's authority.

Bill Pryor's passion is not some obscure legal theory but something in which he has believed deeply 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 deeply-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's judicial ideology is something in which he deeply believes, not just an argument that he makes as a lawyer.

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 14th 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?

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 of competent counsel. When the U.S. 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 this Nation's highest Court, it shows again how results-oriented Mr. Pryor is. 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 compassion. 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,'' and saying that it will ``cost innocent lives.'' How can someone so sure of his position be relied upon 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 steadfast belief that there is no problem with the application of the death penalty. This is a position that cannot possibly offer 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, Bill 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 of those who desire confirmation, saying that he would ``follow the law.'' But his deeply held and intense commitment to overturning established Supreme Court precedent that protects fundamental privacy rights makes it impossible to give his promises any credence.

Bill 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 weeks ago when it declared that the ``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 belief 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.

Mr. Pryor's comments have revealed an insensitivity to the barriers that disadvantaged persons and members of minority groups and women continue to face in the criminal justice system.

In testimony before Congress, Bill 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.''

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 fit to be a judge or likely to be fair on such issues. I think the length and level of his devotion to these issues creates a situation in which his impartiality on such issues would reasonably be questioned by litigants in his court. He should not be confirmed to the United States Court of Appeals for the Eleventh Circuit.

Mr. President, today I am introducing a bill to expand the boundaries of the Green Mountain National Forest. This will allow for the inclusion of lands that have already been purchased using Land and Water Conservation Fund dollars to be brought into the boundaries of the national forest providing them full statutory protection. The Forest Service supports this administrative action and has been extremely helpful in providing the information needed for this legislation.

It is with pride that I can say that since I came to Congress in 1975 and began to seek funding for land acquisition in 1977 we Vermonters have seen the Green Mountain National Forest expand from approximately 264,100 acres to over 387,500 acres in size. This 123,400 acre expansion will provide unmeasured opportunities for the American public.

While there is much debate over the future management of our Nation's national forests today, this should not diminish their importance. In Vermont, where approximately five percent of land base is in federal ownership, these lands are treasured for the opportunities they provide not only to Vermonters, but to all who enjoy the Green Mountain National Forest. This includes recreational activities from camping, hiking, mountain biking, and skiiing to job opportunities provided through timber management activities, the ski industry, and other support services, as well as for their intrinsic value by providing that certain lands are set aside for in their natural state through wilderness protection and other special designations.

I am concerned that some will argue that we need to reduce our land acquisition dollars and to better manage what we already have. I do not dispute the need for better management, but I wholeheartedly disagree with reducing our land acquisition efforts. At one time this Nation believed that our boundaries were limitless. Today we realize that land is a finite resource and as more is acquired for development less will available for the American public to acquire for Federal ownership. There will come a time when the only land one can freely access, thereby avoiding the ``No Trespassing'' signs, will be our Federal, State, and county lands. Visionaries see what tomorrow will bring and prepare for that today--those who are still building upon our public land base have that vision.

At the turn of the century, the 20th century that is, there existed that vision, between then Chief of the Forest

Service Gifford Pinchot and President Theodore Roosevelt who together expanded the boundaries of the national forests immensely. We continue to need that vision, as seen by the efforts by those on the Green Mountain National Forest, in continuing to fund land acquisition into the future.

This need, for providing the American public with unfettered access to open lands, is of significant importance to those who live east of the Mississippi; where more than 50 percent of the American public are within three hours of their national forests, but only have access to approximately one-quarter of the national forest land. I hope that my colleagues will join me in supporting this bill and continue to carry that vision on the future to build upon our national forest system as we start the 21st century.

Mr. President, today I am introducing a bill to expand the boundaries of the Green Mountain National Forest. This will allow for the inclusion of lands that have already been purchased using Land and Water Conservation Fund dollars to be brought into the boundaries of the national forest providing them full statutory protection. The Forest Service supports this administrative action and has been extremely helpful in providing the information needed for this legislation.

It is with pride that I can say that since I came to Congress in 1975 and began to seek funding for land acquisition in 1977 we Vermonters have seen the Green Mountain National Forest expand from approximately 264,100 acres to over 387,500 acres in size. This 123,400 acre expansion will provide unmeasured opportunities for the American public.

While there is much debate over the future management of our Nation's national forests today, this should not diminish their importance. In Vermont, where approximately five percent of land base is in federal ownership, these lands are treasured for the opportunities they provide not only to Vermonters, but to all who enjoy the Green Mountain National Forest. This includes recreational activities from camping, hiking, mountain biking, and skiiing to job opportunities provided through timber management activities, the ski industry, and other support services, as well as for their intrinsic value by providing that certain lands are set aside for in their natural state through wilderness protection and other special designations.

I am concerned that some will argue that we need to reduce our land acquisition dollars and to better manage what we already have. I do not dispute the need for better management, but I wholeheartedly disagree with reducing our land acquisition efforts. At one time this Nation believed that our boundaries were limitless. Today we realize that land is a finite resource and as more is acquired for development less will available for the American public to acquire for Federal ownership. There will come a time when the only land one can freely access, thereby avoiding the ``No Trespassing'' signs, will be our Federal, State, and county lands. Visionaries see what tomorrow will bring and prepare for that today--those who are still building upon our public land base have that vision.

At the turn of the century, the 20th century that is, there existed that vision, between then Chief of the Forest

Service Gifford Pinchot and President Theodore Roosevelt who together expanded the boundaries of the national forests immensely. We continue to need that vision, as seen by the efforts by those on the Green Mountain National Forest, in continuing to fund land acquisition into the future.

This need, for providing the American public with unfettered access to open lands, is of significant importance to those who live east of the Mississippi; where more than 50 percent of the American public are within three hours of their national forests, but only have access to approximately one-quarter of the national forest land. I hope that my colleagues will join me in supporting this bill and continue to carry that vision on the future to build upon our national forest system as we start the 21st century.

Mr. President, I rise today to introduce the Congressional Responsibility for Immigration Act, a bill to deny fast-track procedures to trade agreements that include immigration provisions. We have witnessed outrage in both parties and in both houses of Congress to the inclusion of ``temporary entry'' provisions in the Free Trade Agreements (``FTAs''), with Chile and Singapore. Members of the House and Senate Judiciary Committees, along with other concerned Members, have stated clearly that they never again want to see trade agreements that include immigration provisions. This bill will allow us to do more than rely on the vague assurances that the Office of the U.S. Trade Representative has offered in response to our strongly-held concerns-- it will provide a major deterrent that should prevent this Administration and future Administrations from ignoring Congress' authority over immigration policy. I am pleased that Senator Feinstein--who has led the fight against the inclusions of immigration provisions in the Chile and Singapore agreements--Senator Jeffords, and Senator Kennedy have joined me in introducing this bill.

This bill is simple and straightforward. It states that whenever the Senate considers legislation to implement a free trade agreement, any Senator could raise a point of order against the bill on the grounds that it includes an immigration provision. If the point of order were upheld, the bill would have to be considered under ordinary procedures, allowing us to amend it and strike provisions that violated our constitutional authority over immigration. Succeeding Administrations have told us for decades that they simply cannot pursue trade agreements without ``fast-track'' authority, and Congress has chosen to give that authority to the Executive Branch. Having surrendered some of our power, however, we must be all the more vigilant in ensuring that this surrender remains limited in scope.

It has been widely reported that the USTR considers the ``temporary entry'' provisions in the Chile and Singapore agreements to be models for future agreements. I have criticized those provisions because I share the concerns expressed by Senators Feinstein, Lindsey Graham, Sessions and others that the United States Trade Representative should not be in the business of amending domestic immigration laws, as these treaties do. The decision to include immigration provisions was not only unauthorized but also unnecessary to achieve the Administration's stated goals. Congress has already created the H-1B program, which allows foreign workers with specialized skills to work in the United States. That program was established after a lengthy process of public hearings, debate, and negotiation, and it has worked to help meet labor shortages and strengthen our economy. If the Administration feels that the program needs to be changed, or a new visa category created, it should have sought to do so through the ordinary legislative process.

By including immigration provisions in trade agreements, the Executive Branch not only usurps Congress' authority to create programs, but also to amend them if they prove to be unsuccessful. Any amendments that Congress makes to immigration policies that are made through trade agreements are subject to challenge as violations of those agreements. As a result, our hands are tied not just at the time of the negotiation, but for all future legislative activity as well. This is simply unacceptable--it was not the purpose of our trade agreements and it is neither a wise nor a constitutionally appropriate means of creating our immigration policy. We must pass this bill and restore our proper separation of powers.

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

Mr. President, I rise today to introduce the Congressional Responsibility for Immigration Act, a bill to deny fast-track procedures to trade agreements that include immigration provisions. We have witnessed outrage in both parties and in both houses of Congress to the inclusion of ``temporary entry'' provisions in the Free Trade Agreements (``FTAs''), with Chile and Singapore. Members of the House and Senate Judiciary Committees, along with other concerned Members, have stated clearly that they never again want to see trade agreements that include immigration provisions. This bill will allow us to do more than rely on the vague assurances that the Office of the U.S. Trade Representative has offered in response to our strongly-held concerns-- it will provide a major deterrent that should prevent this Administration and future Administrations from ignoring Congress' authority over immigration policy. I am pleased that Senator Feinstein--who has led the fight against the inclusions of immigration provisions in the Chile and Singapore agreements--Senator Jeffords, and Senator Kennedy have joined me in introducing this bill.

This bill is simple and straightforward. It states that whenever the Senate considers legislation to implement a free trade agreement, any Senator could raise a point of order against the bill on the grounds that it includes an immigration provision. If the point of order were upheld, the bill would have to be considered under ordinary procedures, allowing us to amend it and strike provisions that violated our constitutional authority over immigration. Succeeding Administrations have told us for decades that they simply cannot pursue trade agreements without ``fast-track'' authority, and Congress has chosen to give that authority to the Executive Branch. Having surrendered some of our power, however, we must be all the more vigilant in ensuring that this surrender remains limited in scope.

It has been widely reported that the USTR considers the ``temporary entry'' provisions in the Chile and Singapore agreements to be models for future agreements. I have criticized those provisions because I share the concerns expressed by Senators Feinstein, Lindsey Graham, Sessions and others that the United States Trade Representative should not be in the business of amending domestic immigration laws, as these treaties do. The decision to include immigration provisions was not only unauthorized but also unnecessary to achieve the Administration's stated goals. Congress has already created the H-1B program, which allows foreign workers with specialized skills to work in the United States. That program was established after a lengthy process of public hearings, debate, and negotiation, and it has worked to help meet labor shortages and strengthen our economy. If the Administration feels that the program needs to be changed, or a new visa category created, it should have sought to do so through the ordinary legislative process.

By including immigration provisions in trade agreements, the Executive Branch not only usurps Congress' authority to create programs, but also to amend them if they prove to be unsuccessful. Any amendments that Congress makes to immigration policies that are made through trade agreements are subject to challenge as violations of those agreements. As a result, our hands are tied not just at the time of the negotiation, but for all future legislative activity as well. This is simply unacceptable--it was not the purpose of our trade agreements and it is neither a wise nor a constitutionally appropriate means of creating our immigration policy. We must pass this bill and restore our proper separation of powers.

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

Mr. President, today the Senate will confirm another two judicial nominees, bringing the total number of judicial nominees sent by President Bush to be confirmed to 140. With today's vote, the number of judicial nominees confirmed this year alone climbs to 40. That exceeds the number of judges during all of 2000, 1999, and 1997, and is more than twice as many judges as were confirmed during the entire 1996 session. It is more than the average annual confirmations for the 6\1/ 2\ years the Republican majority controlled the pace of confirmations from 1995 through the first half of 2001. Thus, in the first 7 months of this year, we have already exceeded the year totals for 4 of the 6 years the Republican majority controlled the pace of President Clinton's judicial nominees and the Republican majority's yearly average.

Indeed with the confirmation of this 140th judge, the Senate has now confirmed in 2 years, from July 20, 2001 to July 28, 2003, more judges for President Bush than it was willing to consider during any 3-year period in which President Clinton's nominees were being considered by a Senate Republican majority.

A good way to see how much faster we are proceeding on judicial nominations for a Republican President than Republican Senators were willing to proceed for a Democratic President is to compare where we are on this date over the last several years. Over the last 6\1/2\ years of Republican control under President Clinton, the Republicans allowed only 20 judicial confirmations, on average, by July 28, and included only 4 circuit court nominees, on average, by this time. Today we will

have doubled those benchmarks with the confirmation of the 39th and 40th judicial nominees, which have included 10 circuit court judges. The double standard that Republicans have used in their treatment of judicial nominees is evident from this chart.

On this day, in 1995, only 32 judicial nominations had been confirmed; in 1996, only 14; in 1997, only 9; in 1998 the confirmations totaled 33; in 1999, only 9; and in 2000 the confirmation total by this point of the year was 35. Today, we confirm the 40th judge so far this year. Vacancies in the courts stand at less than half of what they were during the Clinton years and we have more Federal judges serving than ever before.

We have already this year confirmed 10 judges to the Courts of Appeals. This is more than were confirmed in all of 4 of the past 6 years when the Republicans were in the majority--in 1996, 1997, 1999, and 2000. And in the 2 other years, the Tenth Circuit nominee was not confirmed until much later in the year.

Today, the Senate confirms Earl Lee Yeakel and Kathleen Cardone to the U.S. District Court for the Western District of Texas. Judge Yeakel has been serving on the Texas Court of Appeals since 1998, appointed by then-Governor Bush. Judge Cardone has served as a State court judge on different courts throughout the El Paso area since 1990. Both were just nominated on May 1, their paperwork was not complete until June, and they are being confirmed just a month later. This is another sign of how fair the Democrats have been to this President's nominees.

The Judiciary Committee has already held hearings for 6 of President Bush's nominees for the Western District of Texas alone and for 13 of President Bush's district court nominees from the State of Texas. Eight of those judges were given hearings and confirmed during the 17 months I served as chairman of the Judiciary Committee. That was nearly one judge for Texas every other month, in addition to the four United States Attorneys and three United States Marshals who were reviewed and confirmed in that period of time.

As I have noted throughout the last 3 years, the Senate is able to move expeditiously when we have consensus nominees. Unfortunately, far too many of this President's nominees have records that raise serious concerns about whether they will be fair judges to all parties on all issues.

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

How much time do I have remaining on this side?

How much time is available to the other side?

I yield back my time.

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