Floor Statements

Mr. President, when I pick up the newspaper, turn on the radio, or watch television, almost all of the media's attention is, understandably, focused on the war in Iraq. As a result, some important issues in other parts of the world are being overlooked or unreported. I want to call attention to some good news that has received very little attention: Congress has made some much needed progress on the very important issue of conflict diamonds.

The role of diamonds in fueling brutal conflicts in Africa and funding terrorism is well documented, so I will not take much time recounting this history. Suffice it to say, that it is a critical problem and deserves serious attention and resources from Congress, the Bush Administration, and the international community.

It is also well known that the diamond industry, key nongovernmental organizations (NGOs), and a number of governments came together to create an international regime aimed at stopping the trade in conflict diamonds, called the Kimberley Process. In January 2002, the process was launched and now the individual countries involved need to pass implementing legislation.

It is important that the Congress pass legislation before the next Kimberley Process Plenary Meeting on April 28, 2003, to ensure that the United States continues to play a leadership role on this issue.

However, the timing of the bill should not be the only factor. The legislation needs to reflect not just the wishes of the administration but also the views of a bipartisan group of Senators, including Senators Durbin, DeWine, Feingold, Gregg, and Bingaman, who have been working on this issue for years. The bill must also incorporate input from a wide range of NGOs, from Oxfam to Catholic Relief Services, that have dealt first-hand with the devastating consequences of conflict diamonds.

S. 760, the Clean Diamonds Trade Act, does just that. I rise today to support this legislation. And assuming that a word in the section concerning the Kimberley Process Implementation Coordinating Committee is changed, I also support the House companion, H.R. 1584, which is virtually identical to S. 760.

I commend Senators Grassley and Baucus for producing a solid, bipartisan bill to implement the Kimberley Process Certification Scheme (KPCS), an international system designed to ensure that rough diamonds entering the United States are legally mined and traded.

When we began drafting this bill several months ago, the administration's proposed legislation was little more than hortatory. It was filled with permissive authorities that would have required the administration to do virtually nothing. It essentially said: ``Thanks, but we'll take care of the problem by ourselves.''

Through a consultative, bipartisan process, Senators Grassley and Baucus worked with interested Senators, the NGO community, and the diamond industry to shape the administration's proposal into meaningful legislation that contains a number of important provisions.

For example, the bill contains a prohibition of the importation of rough diamonds; requires Government oversight of the U.S. Kimberley Process Authority--the industry body responsible for issuing certificates for U.S. rough diamond exports; and includes reporting requirements that can be used to gauge the effectiveness of the system and monitor attempts to circumvent it. In the administration's original proposal, these provisions either did not exist or were seriously watered-down.

While S. 760 is a good bill and is one that I am pleased to cosponsor, there is room for improvement.

There is nothing in this legislation that deals with polished stones. As a result, if an exporter were to make just one ``cut'' to a diamond it would be exempt from KPCS and the implementing legislation. I also think improvements can be made to the criminal penalties

language, the provision on statistics collection, and a handful of other sections.

But we all know that no bill is perfect and no Senator gets everything he or she wants in a broad, bipartisan bill. I mention these shortcomings, not to criticize the efforts of the authors of the bill, but rather for two important reasons.

First, the shortcomings in the S. 760, as well as the KPCS itself, highlight the fact that Kimberley is an ongoing process and that additional regulations, legislation, and other measures will be necessary in the future. I am very pleased that Senators Grassley and Baucus have included a sense of Congress in S. 760 that says just that.

Second, because the legislation gives the administration a good deal of flexibility, it is imperative that the State Department, Treasury Department, and other agencies follow through and implement the KPCS in an effective and timely manner. I can assure you that those of us who are co-sponsors of this legislation will be working to ensure this happens.

As I have said with countless other pieces of legislation, you can have the best bill in the world, but it is not worth a whole lot if Congress and the administration do not put the resources behind it.

I applaud the authors of the bill for including a Section in the bill that authorizes the President to provide technical assistance to developing nations seeking to implement the KPCS. But, it is up to the Appropriations Committee to make sure this initiative is funded.

As ranking member of the Foreign Operations Subcommittee, I included a provision in the fiscal year 2003 bill that appropriated $2 million for this purpose. However, I have been informed that it is unclear if the State Department plans on utilizing these funds for their intended purpose, and that the Department might transfer it to other programs.

This would be a big mistake. In order to effectively implement Kimberley, extremely poor nations, where diamonds are mined, will have to set up viable export-control and law enforcement systems. Many of these nations simply do not have enough resources to do this.

Because of the links between conflict diamonds and terrorism, as well as human rights and humanitarian concerns, it is important that the United States provide technical assistance in order to have the most effective system possible. If providing a small amount of funding helps strengthen the KPCS, we should do it.

Some in the administration might ask how one would go about implementing such a program.

Those who ask those questions need to look no further than two programs that the U.S. Government has implemented in the past.

The United States Agency for International Development supported a successful program in Sierra Leone to improve controls associated with the mining and export of diamonds. In addition, the United States provides technical assistance to nations to implement the World Trade Organization agreement. I am confident that these two programs can provide a model for the use of these funds.

Americans buy 65 to 70 percent of the world's diamonds, including rough diamonds, polished stones and jewelry containing diamonds. It is up to the United States to provide leadership on this very important issue. Without us, the world will not make the kind of progress it needs to on this and other human rights related matters.

This should not be hard for us to do. It is in our security interests. It is in our humanitarian interests. It is in our economic interests.

With the passage of the Clean Diamonds Trade Act, Congress will take an important step forward. There is much more work that needs to be done, but I am confident that it can be done.

In closing, I would like to thank some of those involved with this effort, including Everett Eissenstat and Carrie Clark of Senator Grassley's staff, Shara Aranoff of Senator Baucus' staff, Randy Soderquist of Senator Bingaman's staff, Laura Parker of Senator DeWine's staff, and last but certainly not least Cara Thanassi of Oxfam America. Without the help of these individuals, this bill would not have made it to first base. I thank them for their hard work.

Madam President, I rise today in support of the Charity Aid, Recovery, and Empowerment, CARE Act of 2003. The tax provisions in the CARE Act will encourage increased giving to charitable organizations across the country. In community after community, our charitable organizations have seen donations drop off significantly because of the sluggish economy.

The CARE Act would allow taxpayers who do not itemize tax deductions to write off a portion of their charitable donations for 2 years-- nonitemizers would be limited to $250 for individuals and $500 for couples filing joint returns. The bill would also permit tax-free distributions from IRAs for charitable purposes and would provide enhanced deductions for contributions of food, books, computers and conservation easements. It is important to note that the $13.1 billion in tax allowances in the CARE Act are fully offset by tax shelter legislation that would impose stiff penalties on those who try to hide assets from the IRS. I am also pleased that the bill reported by the Senate Finance Committee on February 5 contains none of the controversial ``charitable choice'' provisions that hindered its passage in the last Congress.

There are a number of bipartisan and noncontroversial tax incentive provisions in the CARE Act that I have supported as stand-alone bills, including the Artist-Museum Partnership Act, S. 287, that I coauthored with Senator Bennett, and the Good Samaritan Hunger Relief Act, S. 85, that I coauthored with Senator Lugar.

Senator Bennett and I introduced the Artist-Museum Partnership Act to enable our country to keep cherished art works in the United States and to preserve them in our public institutions, while erasing an inequity in our Tax Code that now serves as a disincentive for artists to donate their works to museums and libraries. Under current law, artists who donate self-created works are only able to deduct the cost of supplies such as canvas, pen, paper and ink--a sum that does not come close to the works' true value. This is unfair to artists and it hurts museums and libraries large and small that are dedicated to preserving works for posterity. Our bill would allow artists, writers, and composers who donate works to museums and libraries to take a tax deduction equal to the fair-market value of the work.

In my State of Vermont, we are incredibly proud of the great works produced by hundreds of local artists who choose to live and work in the Green Mountain State. Displaying their creations in museums and libraries helps develop a sense of pride among Vermonters and strengthens a bond with Vermont, its landscape, its beauty, and its cultural heritage. Anyone

who has gained a greater understanding of both the artist and the subject by contemplating a painting in a museum or examining an original manuscript or composition knows the tremendous value of these works. I would like to see more of them, not fewer, preserved in Vermont and across the country.

I would like to thank Senators Allen, Bingaman, Cantwell, Chafee, Clinton, Cochran, Daschle, Dodd, Durbin, Feinstein, Graham of Florida, Jeffords, Johnson, Kennedy, Kerry, Lieberman, Lincoln, Miller, Stevens, and Warner for cosponsoring our bill.

The Good Samaritan Hunger Relief Act that Senator Lugar and I introduced represents a great partnership between businesses and organizations working to alleviate hunger. The bill will increase donations to food banks, soup kitchens, and other hunger relief charities and therefore help local communities and organizations become the first line of defense against hunger in America.

Under current tax law, the deduction allowed for donated food does not cover expenses incurred by the business. In many cases, this means that it is cheaper for a business or farmer to throw away leftover food instead of donating it to the hungry. This legislation will make it easier for restaurants, food processors, and farmers to contribute food to food banks, pantries, and homeless shelters by allowing the deduction of the full market value of food donated.

Over the years, the legislation has received the endorsement of various hunger relief and food community organizations, including America's Second Harvest Food Banks, the American Farm Bureau Federation, the California Emergency Foodlink, the Council of Chain Restaurants, the Grocery Manufacturers of America, Lighthouse Ministries Inc., the National Restaurant Association and the Salvation Army. I would like to thank Senators Akaka, Allen, Bayh, Bond, Cochran, Dayton, DeWine, Dodd, Durbin, Ensign, Fitzgerald, Harkin, Kerry, Landrieu, Miller, Roberts, Santorum, Schumer, and Smith for also cosponsoring our bill.

I want to thank the chairman and ranking member of the Senate Finance Committee for including the Artist-Museum Partnership Act and the Good Samaritan Hunger Relief Act in the CARE Act. As we pass this important legislation today, I look forward to working with my colleagues to ensure that the bipartisan compromises contained in the Senate bill are preserved.

Madam President, I ask unanimous consent that it be in order at this point to request the yeas and nays for both nominees; that is, Dee Drell and Richard Bennett.

I ask for the yeas and nays on both nominees.

With today's confirmation vote on the nominations of Dee Drell to the United States District Court for the Western District of Louisiana and Richard Bennett to the United States District Court of Maryland, Senate Democrats again demonstrate their bipartisanship toward consensus nominees.

With these confirmations the Senate will have confirmed 18 judicial nominees of President Bush so far this year and 118 overall.

During the entire four years of President Clinton's second term as President, Republicans never, not once, allowed the number of vacancies to dip below 50. The last time vacancies hit 49 was 7 years ago.

So far this year we have confirmed more judicial nominees of President Bush than the Republican majority was willing to confirm in the entire 1996 session when President Clinton was in the White House. That entire year only 17 judges were confirmed all year and that included none to the circuit courts, not one. In contrast, already this session two highly controversial circuit court nominees have already been confirmed among the 18 judges the Senate has approved to date. Those confirmations, including one that had more negative votes than the required number of be filibustered but who was not filibustered, never get acknowledged in partisan Republican talking points.

We are also ahead of the pace the Republican majority set in 1999 when it was considered President Clinton's judicial nominees--almost 6 months ahead. It was not until October that the Senate confirmed as many as 18 judicial nominees in 1999.

In the prior 17 months I chaired the Judiciary Committee, we were able to confirm 100 judges and vastly reduce the judicial vacancies that Republicans had stored up by refusing to allow scores of judicial nominees of President Clinton to be considered. We were able to do so despite the White House's refusal to consult with Democrats on circuit court vacancies and many district court vacancies.

There is no doubt that the judicial nominees of this President are conservatives, many of them quite to the right of the mainstream. Many of these nominees have been active in conservative political causes or groups. Democrats moved fairly and expeditiously on as many as we could consistent with our obligations to evaluate carefully and thoroughly these nominees to lifetime seats in the Federal courts. And we continue to do so.

Unfortunately, many of this President's judicial nominees have proven to be quite controversial and we have had serious concerns about whether they would be fair judges if confirmed to lifetime positions. Those controversial judges take more time and raise more concerns.

So, despite the fact that we are considering more controversial nominees from this President than with President Clinton, and despite the progress we have made in reducing judicial vacancies to the lowest level ever attained while President Clinton was in office and despite the pace of the lowest level ever attained while President Clinton was in office and despite the pace of confirmations, which exceeds that maintained by the Republican majority in 1999, Republicans still do nothing but criticize and castigate Senators if every judicial nominee is not confirmed by the Senate after a short debate.

The question I have been asking and the American people should ask is why are the Senate Republicans picking fights rather than working with us to make additional progress. The best example of that is the Republican insistence on seeking to proceed on the most controversial among the President's nominees instead of the circuit court nominations that Democratic Senators have supported and will support to the Fifth Circuit, the nomination of Judge Edward Prado of Texas. Judge Prado's nomination was unanimously reported by the Judiciary Committee. To date, there has been no effort by the Republican leadership to allow the Senate to consider and vote on that nomination. I do not believe the cynical comments of some that Republicans will not allows us to turn to the Prado nomination because he is Hispanic and when the Senate confirms him it would demonstrate yet again that the outrageous charges of anti-Hispanic sentiment that Republicans have tried to make against Democrats were and are ridiculous.

When Senator Hatch was chairman of the Committee and a Democratic President occupied the White House, Senator Hatch denied that even 100 vacancies was a vacancies crisis, according to a column he wrote for the September 5, 1997 edition of USA Today. During the Clinton administration, Senator Hatch repeatedly said that 67 vacancies was the equivalent of ``full employment'' in the Federal judiciary. As of these confirmations, there are not 49 judicial vacancies.

By Senator Hatch's standards we have reached well beyond ``full employment'' on the Federal bench.

Vacancies have dropped to this level in large part because during 17 months of Democratic control of the Senate, we confirmed 100 of President Bush's judicial nominees, even though Republicans averaged only 38 confirmations per year during their prior 6\1/2\ years of control of the Senate. We inherited 110 vacancies by the time the committee

was permitted to reorganize in the summer of 2001, and we confirmed 100 judicial nominees.

This historic number of confirmations in less than a year and a half, cut the number of vacancies to 60. There were 40 new retirements in this period. Chairman Hatch never acted as quickly on Clinton nominees.

The Democratic leadership also moved to confirm 17 circuit court nominees, some of them quite controversial, in those 17 months, even though Chairman Hatch averaged only 7 circuit court confirmations per year during the Clinton administration. This year, two more circuit nominees of President Bush have been confirmed, although other controversial ones have not.

These 19 confirmations of Bush circuit court nominees have reduced the number of circuit vacancies to 23. During the Clinton administration, Chairman Hatch and Senate Republicans blocked the confirmation of 22 circuit court nominees through anonymous holds, blue slips, and other procedures. Had those nominees been confirmed, and had Bush won the confirmation of 19 circuit nominees to vacancies that arose during his Presidency, the current number of circuit vacancies would be 1.

Republicans caused what they call the circuit vacancy crisis. The number of circuit vacancies more than doubled from 16 in January 1995 when Republicans took over the Senate to 33 in the summer of 2001, when the committee was permitted to reorganize under Democratic control. Still, the Senate has already confirmed 19 of his circuit court nominees in less than 2 years. By comparison, President Reagan had 19 circuit nominees confirmed in his first 2 years in office as did President Clinton. The difference is that in both of those administrations, the Presidents were working with Senate majorities of the same political party.

Lately I have heard Republicans complaining that not all of this President's circuit nominees have yet been confirmed, but he has had so many vacancies due to the massive obstruction of circuit seats by Republicans in the Clinton administration, doubling the number of circuit vacancies, as opposed to keeping the rate of vacancies steady or reducing them. Republicans now can be heard to complain that some circuit court nominees did not get a vote in 1992, but that situation does not compare to the long stall of Clinton's circuit court nominees, and her is why:

Only 10 of the circuit nominees of President George H.W. Bush did not get a vote by the committee. Twenty-two of Clinton's circuit nominees did not get votes by the committee during Republican control. That is more than twice as many. Additionally, President George H.W. Bush won the confirmation of 67 percent of his circuit nominees between 1991 and 1992, a Presidential election year, which was consistent with prior Presidential election year congresses for President Reagan. In contrast, President Clinton won confirmation of only 15 of 34 circuit nominees in 1999-2000, about 44 percent.

Thus, because of the Republican success in blocking appellate judges, President Clinton's circuit court nominees were actually more likely than not to not be confirmed, an indignity not suffered by Bush's nominees. This was nothing compared to 1996, the first election year in modern history and recollection in which not a single circuit nominee was confirmed all year, with Republicans in charge. Plus, I would note that 6 of President Clinton's circuit nominees in 1999-2000 were actually re-nominees, like Judge Richard Paez who even Chairman Hatch admitted was ``filibustered'' in 2000 and who waited more than 1,500 days to be confirmed.

In fact, when you look at the actual percent of confirmations by session rather than the combined figure for two years, the percent of Clinton nominees blocked by Republicans is even more shocking. During 1999, only 7 of 25 Clinton circuit nominees were confirmed, or 28 percent, and 1999 was not a Presidential election year. In contrast, in 1991, the first President Bush won the confirmation of 9 of 17 nominees, or 53 percent. In 2000, Clinton won confirmation of 8 out of 25 nominees, including those not acted on in 1999, or 32 percent. In contrast in 1992, Bush won the confirmation of 11 of 21 circuit nominees, including those not acted on in 1991, which again was more than 52 percent.

Despite the wide-scale obstruction or filibustering of Clinton circuit vacancies--filibustering after all comes from the Dutch word for piracy or taking things that do not belong to you--Democrats worked hard to turn the other cheek and fill vacancies that were allowed to go unfilled due to Republican holds.

For example, under Democratic leadership, the Senate held the first hearing for a nominee to the Fourth Circuit in 3 years and confirmed him and another most controversial nominee, even though seven of President Clinton's nominees to that circuit never received hearings from Republicans. We proceed with the first hearing for a nominee to the Fifth Circuit in 7 years and confirmed her, even though three of President Clinton's nominees to that circuit never received hearings. In fact, we held hearings for all three of President Bush's nominees to that circuit even though three of President Clinton's nominees, Enrique Moreno, Jorge Rangel, and Alston Johnson, were never allowed hearings by Republicans.

We proceeded with the first hearing on a nominee to the Sixth Circuit in almost 5 years and confirmed her and another controversial nominee to that circuit even though three of President Clinton's nominees to that circuit never received a hearing. We proceeded with the first hearing on a nominee to the Tenth Circuit in 6 years and confirmed three, even though two of President Clinton's nominees to that circuit were never allowed hearings. With the confirmation of the controversial Tim Tymkovich to the Tenth Circuit last week we have now filled a total of four vacancies on that court. The seat to which he was nominated had been vacant for more than 4 years despite President Clinton having nominated two qualified nominees, neither of whom was ever accorded a hearing.

Had President Clinton's circuit court nominees been confirmed, the circuit courts would have been evenly balanced, with six circuits with a majority of Democratic appointees and six circuits with a majority of Republican appointees and one circuit with an even number of Democratic and Republican appointees.

If President Bush succeeds in winning the confirmation of nominees to every circuit vacancy he inherited plus the ones that have arisen since then, only two circuits will have a majority of Democratic appointees and 11 will have a majority of Republican appointees. In many of those circuits, the Republican appointees will have at least a 2-1 majority on every panel on average. More than 67 percent of the appointments to those courts will be by Republicans.

It is also important to remember when comparing what Republicans did to President Clinton's circuit nominees to what happened in 1992 that Chairman Biden moved through 66 of President Bush's judicial nominees in 1992, President George H.W. Bush's best year for confirmations, despite it being a Presidential election year. However, the Senate could not get through all of the nominees following the bipartisan judgeship bill of 1990 which increased the size of the Federal courts by more than 100 seats.

In the 102nd Congress, Chairman Biden got through 124 of President George H.W. Bush's nominees, including his nominee to the Supreme Court, Clarence Thomas. In fact, the Republicans did not allow President Clinton to win the confirmation of a many judges in 1999 and 2000 combined as Chairman Biden got through for President Bush in 1992 alone.

Finally, I would note that Chairman Biden moved through 20 circuit court nominees for President Bush in the 102nd Congress. As a consequence, the first President Bush was able to appoint 42 circuit judges in his one term as a President. Because of Republicans' blockade of any circuit court nominee to be confirmed in 1996, President Clinton was able to appoint only 30 circuit judges in his first term, more than 25 percent fewer than his predecessor, President George H.W. Bush, who had a Democratic Senate during his entire Presidency. In President Clinton's two full terms, Republican obstruction limited him to 65 circuit court appointment in those 8 years.

In contrast, President George W. Bush has already appointed 19 circuit

judges and, as I have indicated, the 20th confirmation, that of Judge Prado is stalled only because Republicans have refused to proceed to his consideration.

President Bush is poised to appoint at least one-quarter of Federal appellate courts in just one term, due to the large number of circuit court vacancies he inherited from President Clinton which were the result of widespread Republican obstruction.

The solution to the current logjam over circuit court judges is not to move them through more quickly with less scrutiny. The solution is for this President to consult with Senators from both parties in finding mainstream, consensus nominees, rather than this parade of activists and extremists that we have witnessed over these past few months. This President wants a clean slate on judicial nominees, but he refuses to do any of the work necessary to clean that slate. Instead of being a uniter in his judicial choices, he has divided this Senate and the American people by deferring to the far right wing of his party in the only lifetimes appointments in our entire government.

The Senate Judiciary Committee has been ridiculed, and I am sad to say, rightly so, for becoming a rubberstamp, an assembly line for these important nominations to the second highest courts in our Federal Government. The solution is genuine consultation and accommodation rather than this race to pack the courts and tip the balance with nominees who have shown a lack of respect for individual rights.

I am pleased to say, however, that not all of his nominees have been extremists. Particularly for the district court nominees when there has been bipartisan consultation, some of the judicial nominees have been conservative but within the mainstream.

Since the Republican majority will not allow the Senate to consider Judge Prado, let me turn briefly to the nominees before the Senate. Mr. Drell has been a lawyer's lawyer, rather than a political or judicial activist as so many of President Bush's circuit nominees are. Dr. Drell has been a member and a leader of numerous State and Local bar associations. He served on the State Committee or Post-Conviction Representation for 5 years and assisted the State bar with attorney disciplinary matters. Dr. Drell has been active in the Family Mediation Council of Louisiana, where he served as a board member from 1986 to 1992.

He also served as board member of the Rapides Parish Indigent Defender Board from 1987 to 1994. He served on the Louisiana Task Force on Racial and Ethnic Fairness in the Courts.

Mr. Drell has also devoted a considerable amount of time to helping individuals suffering with AIDS on a pro bono basis. He is directly involved as volunteer counsel for Central Louisiana AIDS Support Services and AIDSLaw of Louisiana, Inc. These two organizations provide services to persons with AIDS and AIDS-related complex. He has also devoted time to the Delta Region AIDS Education and Training Center. In 1997, he received the Pro Bono Publico Award in 1997 from AIDSLaw of Louisiana.

Mr. Drell ha a record of accomplishment and compassion as a lawyer of which we can all be proud. He has the full support of both of his home- State Senators. His record has generated no controversy or criticism. If only, our circuit court nominees had records such as his. This nomination is a good example of the kind of candidate who engenders bipartisan support.

I congratulate Mr. Drell, his family and the Senators from Louisiana on his nomination and confirmation.

The other nominee confirmed today is Richard Bennett of Maryland. There is no doubt that Mr. Bennett is a conservative and a Republican, yet he has the support of his home-State Senators and the support of Senate Democrats.

In 1991, Mr. Bennett was chosen by President George H.W. Bush to be the United States Attorney for the District of Maryland and the Senate confirmed him without dissent. He has also run for State office as a Republican. He has litigated more than 100 cases, civil and criminal, most of which were in the Federal court to which he is nominated.

He has received an AV rating from Martindale-Hubbell, been selected to The Best Lawyers in America, and also received a meritorious service medal for his work in the military as a staff judge advocate.

Mr. Bennett served as special counsel to the Government Reform and Oversight Committee in 1997 and 1998 with Republican U.S. Representative Dan Burton, who was investigating campaign contributions during the 1996 election. He heads the Miles & Stockbrige Foundation, a charitable foundation.

I congratulate Mr. Bennett and his family on his confirmation.

Mr. President, I rise today to introduce legislation that will provide much-needed grants for transitional housing services to victims of domestic violence who are brave enough to leave an abusive situation and seek a new life of safety and freedom. I am pleased that Senators Kennedy and Biden join me as original cosponsors of this important legislation.

I witnessed the devastating effects of domestic violence early in my career as the Vermont State's Attorney for Chittenden County. Today, more than 50 percent of homeless individuals are women and children fleeing domestic violence. More than half the cities surveyed by the U.S. Conference of Mayors in 2000 cited domestic violence as a primary cause of homelessness. The women and children who leave their abusers tend to have few, if any, funds with which they can support themselves. Shelters offer short-term assistance, but are overcrowded and unable to provide the support needed. Transitional housing allows women to bridge the gap between leaving a domestic violence situation and becoming fully self-sufficient, but such assistance is limited because there is currently no Federal funding for transitional housing specifically for those victims.

If we truly seek an end to domestic violence, then transitional housing must be available to all those fleeing domestic abuse. The stable, sustainable home base for women and their children found in transitional housing allows women the opportunities to learn new job skills, participate in educational programs, work full-time jobs, and search for adequate child care in order to gain self-sufficiency. Without such resources, many women eventually return to situations where they are abused and even killed. This cycle of domestic abuse must end, and transitional housing assistance is one of the tools we can use to end it.

A transitional housing grant program was last authorized for only one year as part of the reauthorization of the Violence Against Women Act in 2000. This program would have been administered through the Department of Health and Human Services and provided $25 million in fiscal year 2001. Unfortunately, funds were never appropriated for the program, and the authorization has now expired.

The grant program established in the bill I introduce today with Senators Kennedy and Biden would establish a new Department of Justice grant program that authorizes the Attorney General, acting in consultation with the Director of the Violence Against Women Office of the Department of Justice, in consultation with the Secretary of Housing and Urban Development and the Secretary of Health and Human Services. This program would have the benefit of a wide range of expertise in the three departments, and has enormous potential to improve people's lives. It would authorize $30 million in DOJ transitional housing grants for each of the fiscal years 2004 through 2008.

This new grant program administered through DOJ will make a big impact in many areas of the country where availability of affordable housing is at an all-time low. There are many dedicated people working to provide victims of domestic violence with resources, such as Rose Pulliam of the Vermont Network Against Domestic Violence and Sexual Assault, but they can not work alone. We should all be concerned with providing victims of domestic violence a safe place to gain the skills and stability needed to make the transition to independence. This is an important component of reducing and preventing crimes that take place in domestic situations, ranging from assault and child abuse to homicide, and helping the victims of these crimes.

I am please that our bill will be included in the conference report on the PROTECT Act, S. 151. I thank the conferees for including in the conference agreement this language for a grant program that will supply to victims fleeing domestic violence situations tangible means by which they may move on with their lives.

I ask unanimous consent that a section by section analysis of this bill be printed in the Record.

Mr. President, I rise today to introduce legislation that will provide much-needed grants for transitional housing services to victims of domestic violence who are brave enough to leave an abusive situation and seek a new life of safety and freedom. I am pleased that Senators Kennedy and Biden join me as original cosponsors of this important legislation.

I witnessed the devastating effects of domestic violence early in my career as the Vermont State's Attorney for Chittenden County. Today, more than 50 percent of homeless individuals are women and children fleeing domestic violence. More than half the cities surveyed by the U.S. Conference of Mayors in 2000 cited domestic violence as a primary cause of homelessness. The women and children who leave their abusers tend to have few, if any, funds with which they can support themselves. Shelters offer short-term assistance, but are overcrowded and unable to provide the support needed. Transitional housing allows women to bridge the gap between leaving a domestic violence situation and becoming fully self-sufficient, but such assistance is limited because there is currently no Federal funding for transitional housing specifically for those victims.

If we truly seek an end to domestic violence, then transitional housing must be available to all those fleeing domestic abuse. The stable, sustainable home base for women and their children found in transitional housing allows women the opportunities to learn new job skills, participate in educational programs, work full-time jobs, and search for adequate child care in order to gain self-sufficiency. Without such resources, many women eventually return to situations where they are abused and even killed. This cycle of domestic abuse must end, and transitional housing assistance is one of the tools we can use to end it.

A transitional housing grant program was last authorized for only one year as part of the reauthorization of the Violence Against Women Act in 2000. This program would have been administered through the Department of Health and Human Services and provided $25 million in fiscal year 2001. Unfortunately, funds were never appropriated for the program, and the authorization has now expired.

The grant program established in the bill I introduce today with Senators Kennedy and Biden would establish a new Department of Justice grant program that authorizes the Attorney General, acting in consultation with the Director of the Violence Against Women Office of the Department of Justice, in consultation with the Secretary of Housing and Urban Development and the Secretary of Health and Human Services. This program would have the benefit of a wide range of expertise in the three departments, and has enormous potential to improve people's lives. It would authorize $30 million in DOJ transitional housing grants for each of the fiscal years 2004 through 2008.

This new grant program administered through DOJ will make a big impact in many areas of the country where availability of affordable housing is at an all-time low. There are many dedicated people working to provide victims of domestic violence with resources, such as Rose Pulliam of the Vermont Network Against Domestic Violence and Sexual Assault, but they can not work alone. We should all be concerned with providing victims of domestic violence a safe place to gain the skills and stability needed to make the transition to independence. This is an important component of reducing and preventing crimes that take place in domestic situations, ranging from assault and child abuse to homicide, and helping the victims of these crimes.

I am please that our bill will be included in the conference report on the PROTECT Act, S. 151. I thank the conferees for including in the conference agreement this language for a grant program that will supply to victims fleeing domestic violence situations tangible means by which they may move on with their lives.

I ask unanimous consent that a section by section analysis of this bill be printed in the Record.

Mr. President, today the Senate has begun an extraordinary, actually unprecedented, debate to reconsider the nomination of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit. In the history of the country, there has never been a time when a President has resubmitted a circuit court nominee already rejected by the U.S. Senate Judiciary Committee for the same vacancy. Until 4 weeks ago, never before had the Judiciary Committee rejected its own decision on such a nominee and granted a second hearing. We have a case where the Senate Judiciary Committee, having decided not to give even one hearing to President Clinton's nominees to the Fifth Circuit from Texas, Enrique Moreno and Jorge Rangel, in fact having decided not to give a satisfactory hearing to President Bush's nominees to the DC and Sixth Circuits, John Roberts and Deborah Cook, the committee nonetheless proceeded with another hearing for Justice Owen.

It is unprecedented both in its procedures but also in its political partisanship.

What did we learn in that second hearing? We learned that given some time, Justice Owen was able to enlist the help of the talented lawyers working at the White House and the Department of Justice in their political arm to come up with some new justification for her activism. We learned that given six months to reconsider the severe criticism directed at her by her Republican colleagues, she still admits no error. Mostly, I think we learned that the objections expressed last September were sincerely held then, they are sincerely held now. Nothing Justice Owen amplified about her record--indeed, nothing anyone else tried to explain about her record--actually changed her record.

In September, when we considered this nomination in the committee the first time, I said I was proud the Democrats and some Republicans had kept to the merits of the nomination and chose not to vilify or castigate or unfairly characterize and condemn without basis Senators working conscientiously to fulfill their constitutional responsibility.

After hearing some of the ugly things that were subsequently said at that business meeting, some of the accusations made against my colleagues and those interested citizens across the country who expressed opposition to Justice Owen's nomination, I was sorely disappointed that some in the Senate had not kept solely to the merits.

I continue to believe what Senator Feinstein said that day is true. By doing its job on the nomination, by exercising due diligence, by examining records, by not just rubber stamping every nominee the President sent us, the Judiciary Committee showed itself to be alive and well.

We confirmed the overwhelming majority of the President's judicial nominees, 100 out of 103 considered while I was chairman--incidentally, setting an all-time speed record. We took the time to look at their records. We gave each person who was nominated to this lifetime seat on the Federal bench the scrutiny he or she deserved. We did not have the assembly line which seems to be in overdrive since this last Congress took over.

The rush to judgment on so many of the nominees before us does not change the fact that we fully and fairly considered the nomination of Priscilla Owen last year. The record was sufficient when we voted last year. It did not need any setting straight.

I voted ``no'' the last time this nomination was before us. In sharp contrast to the record of the district court nominee Cormac Carney who was just confirmed by the Senate--he came to us with strong bipartisan support--Justice Priscilla Owen is a nominee whose record is too extreme in the context of the very conservative Texas Supreme Court. Her nomination presents a number of areas of serious concern to me.

The first area is her extremism even among a conservative Supreme Court of Texas. The conservative Republican majority of the Texas Supreme Court has gone out of its way to criticize Justice Owen, the dissents she wrote and the dissents she joined in ways that are highly unusual, and highlight not a law-oriented activism but an ends-oriented activism.

A number of justices on the Texas Supreme Court have pointed out how far from the language of statutes she has strayed in her attempts to legislate from the bench, to go far beyond what the legislature intended.

One example is a majority opinion in a case called Weiner v. Wasson. In this case, Justice Owen wrote a dissent advocating a ruling against a medical malpractice plaintiff, a plaintiff who was injured while he was still a minor. The issue was the constitutionality of a Texas State law requiring minors to file medical malpractice actions before reaching the age of majority or risk being outside the statute of limitations. Of interest is the majority's discussion of the importance of abiding by a prior Texas Supreme Court decision, a decision that was now stare decisis, unanimously striking down a previous version of the statute.

In what reads as a lecture to the dissent, one of the very respected members of the Texas Supreme Court, then-Justice John Cornyn, explains on behalf of the majority:

Generally, we adhere to our precedents for reasons of

efficiency, fairness and legitimacy. First, if we did not

follow our own decisions, no issue could ever be considered

resolved. The potential volume of speculative relitigation

under such circumstances alone ought to persuade us that

stare decisis is a sound policy. Secondly, we should give due

consideration to the settled expectations of litigants like

Emmanuel Wasson, who have justifiably relied on the

principles articulated in the previous case. . . . Finally,

under our form of government, the legitimacy of the judiciary

rests in large part upon a stable and predictable

decisionmaking process that differs dramatically from that

properly employed by the political branches of government.

That Justice Cornyn sure knows how to write. He did a great job on this one. Now, I may not agree with him on all other things, I may not even agree with him on the issue before us now, but I sure agree with his decision there.

Actually, I speak of it as being a conservative Supreme Court. In the 30 years I was practicing, we had a pretty conservative Supreme Court in Vermont, and I suspect they would have written the same thing. I suspect most supreme courts would have written the same lines about stare decisis. I do not think that is a case whether one is conservative or liberal on their supreme court. I suspect we could go through all 50 States, whether it is Wyoming, Vermont, Texas, or anywhere else, and find similar language.

The Republican majority on the Texas Supreme Court followed precedent. They followed stare decisis.

In Montgomery Independent School District v. Davis, Justice Owen wrote another dissent which drew fire from a conservative Republican majority, this time for her disregard for legislative language. In a challenge by a teacher who did not receive reappointment to her position, the majority found the school board had exceeded its authority when it disregarded the Texas Education Code and tried to overrule a hearing examiner's decision on the matter. Justice Owen's dissent advocated for an interpretation contrary to the language of the applicable statute.

The majority, which included Alberto Gonzales, now counsel at the White House, and two other appointees of then-Governor Bush, was quite explicit about the view that Justice Owen's position disregarded the law:

The dissenting opinion misconceives the hearing examiner's

role in the . . . process by stating that the hearing

examiner ``refused'' to make findings on the evidence the

Board relies on to support its additional findings. As we

explained above, nothing in the statute requires the hearing

examiner to make findings on matters of which he is

unpersuaded.

The majority also noted the dissenting opinion's misconception, speaking of Justice Owen's opinion:

The dissenting opinion's misconception of the hearing

examiner's role stems from its disregard of the procedural

elements the Legislature established in subchapter F to

ensure that the hearing-examiner process is fair and

efficient for both teachers and school boards. The

Legislature maintained local control by giving school boards

alone the option to choose the hearing-examiner process in

nonrenewal proceedings. . . . By resolving conflicts in

disputed evidence, ignoring credibility issues, and

essentially stepping into the shoes of the factfinder to

reach a specific result, the dissenting opinion not only

disregards the procedural limitations in the statute but

takes a position even more extreme than that argued for by

the board. . . .

Then we have Collins v. Ison-Newsome, another case where a dissent, joined by Justice Owen, was roundly criticized by the Republican majority of the Texas Supreme Court. The court cogently stated a legal basis for its conclusion that they had no jurisdiction to decide the matter before it, and as in other opinions where Justice Owen was in dissent, took time to explicitly criticize the dissent's position contrary to the clear letter of the law.

At issue was whether the Supreme Court had the proper ``conflicts jurisdiction'' to hear the interlocutory appeal of school officials being sued for defamation. The majority explained that it did not because published lower court decisions do not create the necessary conflict between themselves. The arguments put forth by the dissent, in which Justice Owen joined, offended the majority, and they made their views known, writing:

The dissenting opinion agrees that ``because this is an

interlocutory appeal . . . this Court's jurisdiction is

limited,'' but then argues for the exact opposite

proposition. . . . This argument defies the Legislature's

clear and express limits on our jurisdiction. . . . The

author of the dissenting opinion has written previously that

we should take a broader approach to the conflicts-

jurisdiction standard. But a majority of the Court continues

to abide by the Legislature's clear limits on our

interlocutory-appeal jurisdiction.

Listen to what they said. Justice Owen says because this is an interlocutory, the appeals court's jurisdiction is limited, but as the majority point out, she then argued for the exact opposite proposition.

They go on to say, ``[W]e cannot simply ignore the legislative limits on our jurisdiction. . . .''

She was defiant of legislative intent, a total disregard of legislatively drawn limits.

I agree with what President Bush said during the campaign, he wanted people who would interpret the law on courts and not make the law. We have someone here who, time and again, substitutes her judgment for the legislature's judgment. In fact, she wants to be both the legislature and the judiciary.

You can be one or the other. You cannot be both, not in our system of government.

We are already saddled with an activist Supreme Court, the U.S. Supreme Court. We are creating more activist courts of appeals. This is someone who fits into the absolute motto of being an activist judge.

Frankly, I am opposed to the idea of having activists judges either on the liberal side or the conservative side. I want judges who interpret the law who do not make the law, justices who are fair and open to all litigants. I want litigants to be able to walk into a courtroom and look at the judge and say, it really does not make any difference whether I am plaintiff, defendant, rich, poor, liberal, conservative,

what political party I belong to, what color I am, what religion I practice, that judge will hear my case fairly. That judge will either rule with me or rule against me but it will be based on the facts and the law before the judge and not because of their particular ideology or their particular bent or their desire to substitute themselves and their opinion, either for the executive or for the legislative branch of Government.

Some of the most striking examples of criticism of Justice Owen's writings, or the dissents and concurrences she joins, come in a series of parental notification cases heard in 2000.

In the case of Jane Doe I, the majority included an extremely unusual section explaining the proper role of judges, admonishing the dissent joined by Justice Owen for going beyond its duty to interpret the law in an attempt to fashion policy. Giving a pointed critique of the dissenters, the majority explained that:

In reaching the decision of granting Jane Doe's

application, we put aside our personal viewpoints and

endeavored to do our jobs as judges--that is, to interpret

and apply the Legislature's will as has been expressed in the

statute.

In a separate concurrence, Justice Alberto Gonzales wrote to construe the law as the dissent did ``would be an unconscionable act of judicial activism.''

I will speak further on this. I see the distinguished Senator from Texas, who I understand may have a differing view than I do on this nomination, and I do want to make sure he is given a chance. I will speak for a few more minutes and then yield.

I note one thing. Justice Owen has been nominated to fill a vacancy that has existed since January 1997. We are now in the year 2003. This vacancy has existed for 6 years. One might wonder why nobody was nominated during that time. Actually, they were. President Clinton first nominated Judge Jorge Rangel, a distinguished Hispanic attorney from Corpus Christi, to fill that vacancy. He had one of the highest ratings of the American Bar Association, a majority found him well qualified. He was strongly supported by so many across the political spectrum who wrote to me. It was not a question of being voted down; he was never even allowed to have a hearing.

Finally, after 15 months, out of frustration, he asked the President to withdraw his nomination. He said, if I am not going to be allowed to have a hearing, to say nothing about a vote, I am leaving.

Then September 16, 1999, 4 years ago, President Clinton nominated Enrique Moreno, another Hispanic attorney, to fill that same vacancy. This Harvard-educated lawyer also received a rating of well qualified from the ABA, and his was a unanimous well qualified.

Members may be wondering what the vote was on him. Well, there wasn't a vote. There was not even a hearing. He waited for a year and a half and never got a hearing. So both of these people were carefully rejected by not having a hearing.

For years, as I have spoken before, we needed 100 votes to get any nominee through. Unless every single Senator, every single Senator agreed, the nominee would not get a hearing. Time and time again, dozens upon dozens upon dozens of cases, every single Democratic Senator agreed they should at least have a hearing and a vote, and at least one Republican would disagree, and they would never be given a hearing. As Allen Snyder, DC Circuit, never given a vote. Elena Kagan, just named the dean of the Harvard Law School, never given a hearing or a vote; Robert Cindrich, Third Circuit, never given a hearing or a vote by the Republicans; Steven Orlofsky, Third Circuit, never given a hearing or a vote by Republicans; James Beatty in the Fourth Circuit, never given a hearing or a vote by Republicans because not all of them agreed. If one disagreed, if one objected, they were not given a hearing or a vote. Andre Davis, Fourth Circuit, never given a hearing or a vote because at least one Republican disagreed. They needed 100 votes to make it. Elizabeth Gibson, Fourth Circuit, never given a hearing or a vote because one Republican disagreed.

The Fifth Circuit, Alston Johnson, never given a hearing or a vote, because at least one Republican disagreed. Kent Markus, in the Sixth Circuit, Kathleen McCree Lewis, eminently well qualified, at least one Republican disagreed, never given hearings, never given votes. James Duffy in the Ninth Circuit, never given a hearing or a vote, because at least one Republican disagreed. And the same could be said about so many others. James Lyons in the Tenth Circuit. Interestingly enough, in the Tenth Circuit never given a hearing or a vote because one Republican disagreed, and Democrats had helped move forward somebody who many disagreed in that same circuit.

I might point out that of all these people, and so many others, there are dozens of others, but all of these had ratings of well qualified from the ABA. But at least one Republican disagreed, and if just one Republican disagreed, they were never allowed to have a hearing or a vote.

Interestingly enough, it wasn't until May of last year, in the hearing chaired by Senator Schumer, that this committee heard from any of President Clinton's three unsuccessful nominees for the Fifth Circuit. Last May, Mr. Moreno and Judge Rangel testified, along with other of President Clinton's nominees, about their treatment by the Republicans, when the Republicans were in charge of the Senate Judiciary Committee. These nominees were told by at least a couple of the members, senior members of the Republican Party, that if somebody in their caucus disagreed, that was too bad. It had nothing to do with their qualifications. They were not going to fill that vacancy.

This happened in a number of circuits, including the Fifth Circuit. In fact, when the committee held its hearing on the nomination of Judge Edith Clement to the Fifth Circuit in 2001, it was the first hearing on a Fifth Circuit nominee in 7 years. By contrast, Justice Owen was the third nomination to the Fifth Circuit on which the Judiciary Committee, under my chairmanship, held a hearing in less than 1 year. In spite of the treatment by the former Republican majority of so many moderate judicial nominees of the previous President, we proceeded last July with a hearing on Justice Owen.

So Justice Owen was the third nominee to this vacancy. She was the first to be afforded a hearing before the committee. Actually, I set that hearing. I even set the vote on a day that President Bush personally asked me to set the vote. After having set it on the day he asked me to, the political arm of the Justice Department immediately started calling all these editorial writers and others, saying: It is terrible she is being set for a vote on that day.

It was interesting. They then, as they had the right to do, put it off for several weeks, the vote. I almost wonder what the vote would have been had it been on the day the President asked to have the vote, and the day I agreed with the President to have the vote, and then was castigated by the White House for going along with what President Bush wanted. It is, with this administration, sort of: No good deed goes unpunished.

But then I think it is interesting what happened. Because after the Republicans put it off and we did not have the vote on the day the President asked, there was so much partisan politicking that went on on her behalf that I think it solidified at least a couple of votes against her on that committee. We will never know.

But, even though Republicans had blocked many of President Clinton's nominees for the Fifth Circuit, we moved forward in a hearing for Priscilla Owen. At her hearing a couple of weeks ago, her second hearing, her unprecedented hearing, the chairman was very dismissive of our concerns and our efforts to evaluate this nomination on the merits. But the irony is, she has been before this committee twice now and neither time did the explanations change the facts before us. The President has said, and I am sure all his pollsters will tell him, people agree with this, as they should, the standard for judging judicial nominees would be that they ``share a commitment to follow and apply the law, not make law from the bench.''

Everybody agrees with that. I agree with that. I don't know anybody who disagrees with that. But that is not Priscilla Owen's record. She is ready to make law and legislate from the bench.

She is not qualified for a lifetime appointment to the Federal bench. This

is something that affects all of us, these decisions. To put somebody in a lifetime appointment like that who has already shown she is an activist judge, I think is wrong. The President spoke of judicial activism without acknowledging that ends-oriented decisionmaking can come easily to ideologically motivated nominees. In the case of Priscilla Owen, we see a perfect example of such an approach to law. I do not support that. I will not.

I am perfectly willing to consent to the confirmation of consensus, mainstream judges. I have on hundreds of occasions. When I was chairman, I did not allow the past rule--the past practice of anonymous holds. We even had a number I did not support, but brought them to a vote. When they got through the committee they came on the floor.

Justice Owen was plucked from a law firm by political consultant Karl Rove. She ran as a conservative pro-business candidate for the Texas Supreme Court. She certainly got a lot of support from the business community. Then she fulfilled her promise; she became the most conservative judge on a conservative court. She stood out for ends- oriented, extremist decisionmaking.

Now she is being asked to be placed in a lifetime appointment one step below the Supreme Court. I do not support that.

I suggest the absence of a quorum.

Mr. President, while the distinguished Senator from Florida is still in the Chamber, I wish to thank him for his impassioned comments. I am going to be speaking later this week on this same subject. I am one who, for a number of reasons--geopolitically, strategically, and economically--have not supported the current embargo on Cuba. I am, however--and I feel proud--as Vermonters say, I bow to nobody on the question of human rights on this floor.

I met with Mr. Castro in Havana a couple years ago at a time when there was another crackdown of dissidents. I told him specifically what I felt about that in very strong words. He obviously disagreed with me, but I felt as an American in Cuba, it would be wrong for me not to express such a view.

I will follow with a speech later this week on Cuba, but I hope my good friend from Florida, who has been such an extraordinary leader in this area over the years, when he was in State government in Florida, when he was in the House of Representatives, and as a Senator--he has been such an extraordinary leader. I hope he knows, no matter how one might feel about our overall relations with Cuba, no American should find justifiable the silence of those who simply wish to speak to basic human freedoms, basic human rights--the right of speech, the right of religion. These are issues that, from the time of Thomas Jefferson, Benjamin Franklin, John Adams, and George Washington, we have enunciated in this country, but I do not know any country that can claim any form of democracy and freedom that would feel that way. I commend my friend. I hope others will listen to him. I hope 90 miles from his home State that it will be heard as strongly as it was heard on the floor of the Senate. I commend him.

Of course.

With today's confirmation vote on the nomination of Judge Cormac Carney to the U.S. District Court for the Central District of California, Senate Democrats again demonstrate their bipartisanship toward consensus nominees. Judge Carney's confirmation will bring to 16 the number of judicial nominees of President Bush confirmed just this year, with 14 district court nominees and two circuit court nominees confirmed in the first 10 weeks since the reorganization of the Senate. This stands in marked contrast to 1996 when only 17 judicial nominees of President Clinton were confirmed all year, and not one of them was for the circuit courts.

Last year alone, in an election year, the Democratic-led Senate confirmed 72 judicial nominees, more than in any of the prior 6 years of Republican control. Overall, in the prior 17 months I chaired the Judiciary Committee, we were able to confirm 100 judges and vastly reduce the judicial vacancies that Republicans had stored up by refusing to allow scores of judicial nominees of President Clinton to be considered. Not once did the Republican-controlled Senate consider that many of President Clinton's district and circuit court nominees. We were able to do so despite the White House's refusal to consult with Democrats on circuit court vacancies and many district court vacancies.

There is no doubt that the judicial nominees of this President are conservation, many of them quite to the right of the mainstream. Many of these nominees have been active in conservative political causes or groups. Democrats moved fairly and expeditiously on as many as we could consistent with our obligations to evaluate carefully and thoroughly these nominees to lifetime seats in the Federal courts. Unfortunately, many of this President's judicial nominees have proven to be quite controversial and we have had serious concerned about whether they would be fair judges if confirmed to lifetime positions. We are pleased that this is not the case with Judge Carney of California.

While Republicans frequently point to the 377 judges confirmed for President Clinton, what they tellingly leave out is that only 245 of them were confirmed during the 6\1/2\ years Republicans controlled the Senate. That amounts to only 38 confirmations per year when the Republicans last held a majority. In 1999, the Republican majority did not hold a hearing on any judicial nominee until June. Last week, the Republican majority held its seventh hearing including a 32nd judicial nominee in the last 2 months. The Senate Judiciary Committee under Republican control operates in two very different ways under very different practices and rules depending on the political party of the President. This year it is acting like a runaway train, operating at breakneck speed and breaking longstanding rules and practices of the committee to rush through the consideration of lifetime appointees.

This year we have had a rocky beginning with a hearing for three controversial circuit court nominees which caused a great many problems that might have been avoided had the chairman honored the bipartisan agreement on controversial nominees and the pace of hearings and votes that has been in place since 1985, for almost 20 years. The chairman's insistence on terminating debate on the Cook and Roberts nominations, in clear violation of the committee's express rules that have been honored since 1979, for almost 25 years--is another serious problem. Of course, with the Estrada nomination, the administration's unwillingness to work with the Senate to provide access to documents of the exact same type as have been provided in past nominations for lifetime and short-term appointments has proven to be a significant problem. The opposition to the Sutton nomination is also extensive. The unprecedented nature of a President re-nominating someone for the same judicial position after a defeat in committee has led to the very controversial Owen nomination pending on the floor with the assent of only the Republicans on the committee. The chairman's decision to hold a hearing on the controversial Judge Kuhl, despite objections of one of her home state Senators, is also problematic and is something that he never did, not once, when there was a Democrat in the White House.

Nonetheless, the Senate has proceeded to confirm 116 of President Bush's judicial nominees, including 16 this year alone and another today. It was not until September 1999, 9 months into the year, that 16 of President Clinton's judicial nominees were confirmed in the first session of the last Congress in which Republicans controlled the Senate majority. At the pace set by Republicans now, we are 6 months ahead of that schedule.

The confirmation of Judge Carney will fill the last current vacancy in the Federal district courts in California. This nomination is a good example of the kind of bipartisan-supported candidates the President ought to be sending the Senate. Judge Carney comes to us after being unanimously approved by California's Bipartisan Judicial Advisory Committee--a committee established through an agreement Senator Feinstein and Senator Boxer reached with the White House. This is one of the few bipartisan commissions that the White House has allowed to proceed, although the White House has not moved forward with some of its bipartisan, qualified recommendations. This California committee works to take the politics out of judicial nominations. It reviews qualified, consensus nominees who will serve on the Federal judiciary with distinction. Too often in the last 2 years we have seen the recommendations of such bipartisan panels rejected or stalled at the White House. Instead, they should be honored and encouraged.

Judge Carney has served as a Superior Court Judge in the State of California since 2001. Judge Carney was a

partner with the law firm of O'Melveny & Myers handling civil matters before he was appointed to the State court bench in 2001. He played professional football before going to law school and has served in the Air Force Reserve.

Two other district judges in California have already been unanimously confirmed this year, Judge Selna and Judge Otero. Last Congress, led by a Democratic Senate majority, the Senate confirmed four nominees to the Federal district courts in California. Percy Anderson and John Walter were confirmed to the U.S. District Court for the Central District of California on April 25, 2002, just 3 months after their initial nominations. The Senate also confirmed Robert G. Klausner to be a U.S. District Judge for the Central District of California on July 18, 2002, and Jeffrey S. White to be a U.S. District Court Judge for the Northern District of California on November 14, 2002. The Senate has now filled all seven of the vacancies on the Federal trial courts in California that we inherited.

Last year, at the urging of Senator Feinstein and the chief judge of the district, we included in the 21st Century Department of Justice Appropriations Authorization Act, five additional judgeships for the Southern District of California. We also included an additional position for the Central District of California. By mid-July California will have six important vacancies to be filled. I look forward to working with the Senators from California to proceed, if possible, in advance of July on additional nominations so that these much-needed seats can be filled quickly with fair, mainstream nominees. It is unfortunate that the President, who has had notice of these upcoming vacancies for some time, has not worked with the California Senators and their bipartisan commissions to send consensus nominees to the Senate.

I congratulate Judge Carney, his family, and the Senators from California on his confirmation.

Mr. NELSON of Florida. Mr. President, I want to express my support for the nomination of Cormac J. Carney to be U.S. District Judge, for the Central District of California. Mr. Carney has the knowledge, experience and personal characteristics needed to succeed on the Federal bench.

Unfortunately, due to inclement weather, I was unable to return to Washington in time for the vote to confirm Mr. Carney, but I would like the Record to reflect that, had I been present, I would have cast my vote in favor of his confirmation.

Mr. President, this past Sunday marked the beginning of National Crime Victims' Rights Week. We set this week aside each year to focus attention on the needs and rights of crime victims. I am pleased to take

this opportunity to introduce legislation with my good friend from Massachusetts, Senator Kennedy, and our cosponsors, Senators Corzine, Kerry, Murray, and Schumer. Our bill, the Crime Victims Assistance Act of 2003, represents the next step in our continuing efforts to afford dignity and recognition to victims of crime.

My involvement with crime victims began more than three decades ago when I served as State's Attorney in Chittenden County, VT, and witnessed first-hand the devastation of crime. I have worked ever since to ensure that the criminal justice system is one that respects the rights and dignity of victims of crime, rather than one that presents additional ordeals for those already victimized.

I am proud that Congress has been a significant part of the solution to provide victims with greater rights and assistance. Over the past two decades, Congress has passed several bills to this end. These bills have included: the Victims of Crime Act of 1984; the Victims' Bill of Rights of 1990; the Victims' Rights and Restitution Act of 1990; the Violence Against Women Act of 1994; the Mandatory Victims Restitution Act of 1996; the Victim Rights Clarification Act of 1997; the Crime Victims with Disabilities Awareness Act of 1998; the Victims of Trafficking and Violence Protection Act of 2000; the Victims of Terrorism Tax Relief Act of 2001; and the September 11th Victim Compensation Fund of 2001.

The legislation that we introduce today, the Crime Victims Assistance Act of 2003, builds upon this progress. It provides for comprehensive reform of the Federal law to establish enhanced rights and protections for victims of Federal crime. Among other things, our bill provides crime victims with the right to consult with the prosecution prior to detention hearings and the entry of plea agreements, and generally requires the courts to give greater consideration to the views and interests of the victim at all stages of the criminal justice process. Responding to concerns raised by victims of the Oklahoma City bombing, the bill provides standing for the prosecutor and the victim to assert the right of the victim to attend and observe the trial.

Assuring that victims are provided their statutorily guaranteed rights is a critical concern for all those involved in the administration of justice. Our bill would establish an administrative authority in the Department of Justice to receive and investigate victims' claims of unlawful or inappropriate action on the part of criminal justice and victims' service providers. Department of Justice employees who fail to comply with the law pertaining to the treatment of crime victims could face disciplinary sanctions, including suspension or termination of employment.

In addition to these improvements to the Federal system, the bill proposes several innovative new programs to help States provide better services to victims of State crimes. The bill authorizes technology grants for local authorities to develop state-of-the-art notification systems to keep victims informed of case developments and important dates. Grants would also be available to improve compliance with State victim's rights laws, encourage further experimentation with the community-based restorative justice model, streamline access to victim services through the use of case managers, and expand the capacity of victim service providers to serve victims with limited English proficiency.

Finally, the Crime Victims Assistance Act would improve the manner in which the Crime Victims Fund is managed and preserved. Most significantly, the bill would eliminate the annual cap on spending from the Fund, which has prevented millions of dollars of Fund deposits from reaching victims and supporting essential services. We should not be imposing artificial caps on VOCA spending while substantial unmet needs continue to exist. The Crime Victims Assistance Act would replace the cap with a self-regulating system, supported by crime victim groups, that would ensure the stability and protection of Fund assets, while allowing more money to be distributed for victim programs.

These are all matters that can be considered and enacted this year with a simple majority of both Houses of Congress. They need not overcome the delay and higher standards necessitated by proposing to amend the Constitution. They need not wait the hammering out of implementing legislation before making a difference in the lives of crime victims.

I have on several occasions noted my concern that we not dissipate the progress we could be making by focusing exclusively on efforts to amend the Constitution. Regretfully, many opportunities for progress have been squandered. One notable exception was the passage, as part of the USA PATRIOT Act of 2001, of several significant amendments to the Victims of Crime Act that Senator Kennedy and I had proposed in an earlier version of the Crime Victims Assistance Act. I am glad that we could get those important provisions signed into law, but we still have more to do.

I look forward to continuing to work with the Administration, victims groups, prosecutors, judges and other interested parties on how we can most effectively enhance the rights of victims of crime. Congress and State legislatures have become more sensitive to crime victims rights over the past 20 years and we have an opportunity to make additional, significant progress this year to provide the greater voice and rights that crime victims deserve. It is my hope that Democrats and Republicans, and supporters and opponents of the proposed constitutional amendment, will join in advancing the Crime Victims Assistance Act through Congress. We can make a difference in the lives of crime victims right now.

I ask unanimous consent that the text of the bill and the section-by- section analysis be printed in the Record.

Mr. President, this past Sunday marked the beginning of National Crime Victims' Rights Week. We set this week aside each year to focus attention on the needs and rights of crime victims. I am pleased to take

this opportunity to introduce legislation with my good friend from Massachusetts, Senator Kennedy, and our cosponsors, Senators Corzine, Kerry, Murray, and Schumer. Our bill, the Crime Victims Assistance Act of 2003, represents the next step in our continuing efforts to afford dignity and recognition to victims of crime.

My involvement with crime victims began more than three decades ago when I served as State's Attorney in Chittenden County, VT, and witnessed first-hand the devastation of crime. I have worked ever since to ensure that the criminal justice system is one that respects the rights and dignity of victims of crime, rather than one that presents additional ordeals for those already victimized.

I am proud that Congress has been a significant part of the solution to provide victims with greater rights and assistance. Over the past two decades, Congress has passed several bills to this end. These bills have included: the Victims of Crime Act of 1984; the Victims' Bill of Rights of 1990; the Victims' Rights and Restitution Act of 1990; the Violence Against Women Act of 1994; the Mandatory Victims Restitution Act of 1996; the Victim Rights Clarification Act of 1997; the Crime Victims with Disabilities Awareness Act of 1998; the Victims of Trafficking and Violence Protection Act of 2000; the Victims of Terrorism Tax Relief Act of 2001; and the September 11th Victim Compensation Fund of 2001.

The legislation that we introduce today, the Crime Victims Assistance Act of 2003, builds upon this progress. It provides for comprehensive reform of the Federal law to establish enhanced rights and protections for victims of Federal crime. Among other things, our bill provides crime victims with the right to consult with the prosecution prior to detention hearings and the entry of plea agreements, and generally requires the courts to give greater consideration to the views and interests of the victim at all stages of the criminal justice process. Responding to concerns raised by victims of the Oklahoma City bombing, the bill provides standing for the prosecutor and the victim to assert the right of the victim to attend and observe the trial.

Assuring that victims are provided their statutorily guaranteed rights is a critical concern for all those involved in the administration of justice. Our bill would establish an administrative authority in the Department of Justice to receive and investigate victims' claims of unlawful or inappropriate action on the part of criminal justice and victims' service providers. Department of Justice employees who fail to comply with the law pertaining to the treatment of crime victims could face disciplinary sanctions, including suspension or termination of employment.

In addition to these improvements to the Federal system, the bill proposes several innovative new programs to help States provide better services to victims of State crimes. The bill authorizes technology grants for local authorities to develop state-of-the-art notification systems to keep victims informed of case developments and important dates. Grants would also be available to improve compliance with State victim's rights laws, encourage further experimentation with the community-based restorative justice model, streamline access to victim services through the use of case managers, and expand the capacity of victim service providers to serve victims with limited English proficiency.

Finally, the Crime Victims Assistance Act would improve the manner in which the Crime Victims Fund is managed and preserved. Most significantly, the bill would eliminate the annual cap on spending from the Fund, which has prevented millions of dollars of Fund deposits from reaching victims and supporting essential services. We should not be imposing artificial caps on VOCA spending while substantial unmet needs continue to exist. The Crime Victims Assistance Act would replace the cap with a self-regulating system, supported by crime victim groups, that would ensure the stability and protection of Fund assets, while allowing more money to be distributed for victim programs.

These are all matters that can be considered and enacted this year with a simple majority of both Houses of Congress. They need not overcome the delay and higher standards necessitated by proposing to amend the Constitution. They need not wait the hammering out of implementing legislation before making a difference in the lives of crime victims.

I have on several occasions noted my concern that we not dissipate the progress we could be making by focusing exclusively on efforts to amend the Constitution. Regretfully, many opportunities for progress have been squandered. One notable exception was the passage, as part of the USA PATRIOT Act of 2001, of several significant amendments to the Victims of Crime Act that Senator Kennedy and I had proposed in an earlier version of the Crime Victims Assistance Act. I am glad that we could get those important provisions signed into law, but we still have more to do.

I look forward to continuing to work with the Administration, victims groups, prosecutors, judges and other interested parties on how we can most effectively enhance the rights of victims of crime. Congress and State legislatures have become more sensitive to crime victims rights over the past 20 years and we have an opportunity to make additional, significant progress this year to provide the greater voice and rights that crime victims deserve. It is my hope that Democrats and Republicans, and supporters and opponents of the proposed constitutional amendment, will join in advancing the Crime Victims Assistance Act through Congress. We can make a difference in the lives of crime victims right now.

I ask unanimous consent that the text of the bill and the section-by- section analysis be printed in the Record.

Mr. President, I rise today in support of the amendment offered by Senators Schumer, Clinton, Mikulski, and others. I am proud to join them as a cosponsor of this amendment that will provide desperately-needed funds directly to State and local governments to boost the emergency preparedness capabilities of our Nation's first responders. The amendment also provides much-needed funding for high threat urban areas, FIRE grants, and COPS.

Our Nation is at war, and we find ourselves facing enormous challenges, both at home and abroad. The American people have responded to those challenges and are performing with skill and determination and valor on both fronts.

We have nearly a quarter of a million troops in the Middle East. Our soldiers and marines have been engaging tenacious guerilla fighters in Iraq's harshest weather conditions. Our sailors are superbly executing their complex missions. Our Air Force already has performed thousands of missions over long distances amid withering ground fire, eliminating threats to all our troops. And we have National Guard units being called up all across the country to prepare for what could turn into a lengthy assignment overseas.

Here on the homefront, our first responders and thousands of dedicated Federal workers are giving their all to preparedness and prevention. Police officers, firefighters, and emergency medical response providers are being pushed to the limit with added duties, longer shifts, and cancelled time off. The new responsibilities they are shouldering in guarding against and preparing for terrorism have become largely unfunded mandates on them and on their States and communities. Every time the threat alert level is raised, it takes millions more in local and State costs to respond.

The administration readily accepts the need to fund our antiterrorism efforts abroad, but the administration continues to downplay and minimize the real needs in real communities across the Nation for adequate resources to meet homeland defense needs here at home. That must change. We need to do both we need a robust response to terrorism on both fronts, here and abroad.

This supplemental spending plan the President submitted to the Congress addresses costs in Iraq and other locations overseas but misses the mark by a mile in funding our needs on the homefront. We are fighting a two-front war, yet the President's request mostly only addresses the war in Iraq--as well as the needs of a few coalition allies.

It is frustrating, as well as more than a little ironic, that after all of the repeated requests from Congress and State and local officials, over a period now of a year and a half, about the need for taking care of the fight against terrorism at home, the administration has decided to request almost $8 billion in assistance on behalf of the foreign nations that it considers helpful in the war against Iraq, but only $2 billion for first responders. The Nation's Governors and mayors have made abundantly clear the urgent need for that same level of funding, $8 billion. Our hometown heroes need help now.

In recent months, the Nation's first responder needs have grown increasingly urgent. I have repeatedly joined with congressional leaders like Senator Byrd, Senator Daschle, and others in asking the President, in this supplemental request for appropriations, to include at least $5 billion for our State and local first responders. But the administration has fallen far short in this bill, including only $2 billion to assist State and local governments to support federally mandated terrorism preparedness during this time of heightened threats and insecurity. The amount included in the supplemental is inadequate.

No Federal agencies are doing the jobs that we need first responders to do. When terrorists attack, the first call that is made is not to a Federal agency in Washington. It is to 9-1-1, for their State and local first responders. The responsibility now falls to the Congress to boost funding for our first responders. We are in a two-front war, overseas and here at home, and we need to fund both.

The sooner we help first responders help us in the war on terrorism, the better. I hope you will agree that our Governors and mayors know what their States and communities need to be safe from and respond to terrorist attacks. My colleagues and I who introduce this amendment have heard their pleas and responded. I hope the Congress will respond accordingly, even though the administration so far has not.

Mr. President, today I am proud to offer an amendment with Senator Craig and five other Senators that will repeal a rider that was inserted without a vote, without debate, and without discussion into the Omnibus Appropriations Conference Report.

After the Conference Committee met and behind closed doors, this special interest rider gutted the organic standards just recently enacted by U.S. Department of Agriculture. This special interest provision was inserted into the bill on behalf of a single producer who essentially wants to hijack the ``organic'' certification label for his own purposes, to get a market premium for his products, without actually being an organic product.

The antiorganic rider allows producers to label their meat and dairy products ``organic'' even though they do not meet the strict criteria set forth by USDA, including the requirement that the animals be fed organically grown feed. This approach was considered and outright rejected by USDA last June. The entire organic industry opposed this weakening of the organic standards.

If beef, poultry, pork and dairy producers are able to label their products as ``organic'' without using organic feed, which is one of the primary inputs, then what exactly is organic about the product?

Opposition to this rider has been broad, deep, and extremely bipartisan. I have spoken to Secretary Veneman, who has come out publicly in opposition to the antiorganic rider. In the last month, a total of 68 Senators have joined me by cosponsoring a bill to repeal this rider.

This antiorganic rider is particularly galling because so many producers have already made the commitment to organic production. For most, this is a huge financial commitment on their part.

Now the rider has created a legal limbo for farmers. No one knows what the legal requirements for organic animal products are anymore.

I have heard from large producers--General Mills, Tyson Foods--as well as scores of farmers from Vermont and around the country who are enraged by this special loophole included for one company that does not want to play by the rules.

Our amendment simply strikes this antiorganic rider from the Omnibus

Appropriations Act, restoring the strong organic standards created by USDA. We need to send a message to all producers that if you want to benefit from the organic standards economically, you must actually meet them.

When I included the Organic Foods Production Act in the 1990 farm bill, it was because farmers recognized the growing consumer demand for organically produced products, but needed a tool to help consumers know which products were truly organic and which were not.

The act directed USDA to set minimum national standards for products labeled ``organic'' so that consumers could make informed buying decisions. The national standard also reassured farmers selling organically produced products that they would not have to follow separate rules in each State, and that their products could be labeled ``organic'' overseas.

The new standards have been enthusiastically welcomed by consumers, because through organic labeling they now can know what they are choosing and paying for when they shop. The antiorganic rider, however, has undermined public confidence in organic labeling, which is less than a year old.

This was not the first attempt to weaken the organic standards. Getting the organic standards that are behind the ``USDA Organic'' label right was a long and difficult process, but critically important to the future of the industry. During the rule-making process, some tried to allow products treated with sewer sludge, irradiation, and antibiotics to be labeled ``organic.''

The public outcry against this was overwhelming. More than 325,000 people weighed in during the comment period, as did I. The groundswell of support for strong standards clearly showed that the public wants ``organic'' to really mean something. Those efforts to hijack the term were defeated and this one should be, too.

Consumers and producers rely on the standard. I hope more members will support my amendment and send a message to special interests that they cannot hijack the organic industry through a rider on the spending bill.

We need to fix this mistake and restore integrity to our organic standards.

I urge my colleagues to support this amendment.

I can understand the concerns of the Senator from Louisiana and the Senator from New Mexico. I join the chairman of the Foreign Operations Subcommittee in his view that the State Department should continue to carry out ATAP courses at Lousiana State University and the New Mexico Institute of Mining and Technology.

Mr. President, Senator Kerry and I are pleased to introduce the ``Fair and Independent Judiciary Act of 2003.'' This legislation arises from our belief that we must remain steadfast in our commitment to preserving the vitality of our third branch of government. Ensuring a fair and independent judiciary is critical to preserving the system of checks and balances established in our Constitution. The Fair and Independent Judiciary Act includes measures to respond to the shortfall in real judicial compensation, to repeal the link of judicial pay to congressional pay, to improve survivorship benefits, and to instill greater public confidence in our courts.

The National Commission on Public Service, a blue-ribbon panel of experts headed by Paul Volcker, recently concluded that Congress' budgetary treatment of this co-equal branch threatens its ability to perform its essential mission. This legislation addresses a problem that the Chief Justice has repeatedly brought to our attention--the decline in real judicial salaries.

As a member of both the Senate Judiciary Committee and the Appropriations Subcommittee on Commerce, Justice, State and the Judiciary, I have worked hard to help preserve a fair and independent judiciary. I was very disappointed that the Continuing Resolutions approved by Congress failed to give the Federal judiciary a cost-of- living adjustment, COLA, for fiscal year 2003.

Earlier this year, Senator Hatch and I were joined by Senator DeWine and Senator Specter to cosponsor legislation in the Senate to provide the Federal judiciary with a COLA for the present fiscal year. House Judiciary Chairman Sensenbrenner was joined by that Committee's Ranking Democratic Member, Congressman Conyers, and others to introduce identical legislation. Congress eventually passed a measure to give the Judiciary their cost of living adjustment for fiscal year 2003 but this effort failed to compensate the judiciary for many other previously skipped COLAs.

The Fair and Independent Judiciary Act would correct the earlier failures to provide COLAs and prevent this situation from happening again.

It is important to put our budgetary treatment of this co-equal branch in historical context. In 1975, Congress enacted the Executive Salary Cost-of-Living Adjustment Act, intended to give judges, Members of Congress and other high-ranking Executive Branch officials automatic COLAs as accorded other Federal employees unless rejected by Congress. In 1981, Congress enacted Section 140 of Public Law 97-92, mandating specific congressional action to give COLAs to judges.

Five times in the last decade Congress failed to provide the Judiciary with a COLA. We believe that this treatment was unfair to the judiciary and that we should restore their salaries to what they would be had the COLAs been granted. In order to have their salaries reflect the current cost of living we should unlink the salaries of Members of Congress and Members of the Judiciary by repealing Section 140.

In their thorough report, the Volcker Commission recommended that Congress unlink judicial salaries from those of Members of Congress. The Commission explained that due to ``the reluctance of members of Congress to risk the disapproval of their constituents . . . Congress has regularly permitted salaries to fall substantially behind cost-of- living increases.'' Urgent Business for America: Revitalizing the Federal Government for the 21st Century, January 2003, Recommendation 10. Therefore, the Commission found that ``executive and judicial salaries must be determined by procedures that tie them to the needs of the government, not the career-related political exigencies of members of Congress.''

The Fair and Independent Judiciary Act would restore the skipped cost of living adjustments that occurred in 1995, 1996, 1997, 1999 and 2002 so that the salaries of our judges and justices are not outpaced by inflation.

Chief Justice Rehnquist has called judicial pay ``the most pressing issue'' facing the courts.

We look forward to Senate consideration of the Fair and Independent Judiciary Act to restore previously skipped cost of living adjustments for the Justices and judges of the United States. We hope we can all work together to preserve the vitality of our third branch of government and to instill even greater confidence in our federal courts.

I ask unanimous consent that the January 6, 2003 editorial from the Washington Post, and the text of the bill be printed in the Record.

Mr. President, Senator Kerry and I are pleased to introduce the ``Fair and Independent Judiciary Act of 2003.'' This legislation arises from our belief that we must remain steadfast in our commitment to preserving the vitality of our third branch of government. Ensuring a fair and independent judiciary is critical to preserving the system of checks and balances established in our Constitution. The Fair and Independent Judiciary Act includes measures to respond to the shortfall in real judicial compensation, to repeal the link of judicial pay to congressional pay, to improve survivorship benefits, and to instill greater public confidence in our courts.

The National Commission on Public Service, a blue-ribbon panel of experts headed by Paul Volcker, recently concluded that Congress' budgetary treatment of this co-equal branch threatens its ability to perform its essential mission. This legislation addresses a problem that the Chief Justice has repeatedly brought to our attention--the decline in real judicial salaries.

As a member of both the Senate Judiciary Committee and the Appropriations Subcommittee on Commerce, Justice, State and the Judiciary, I have worked hard to help preserve a fair and independent judiciary. I was very disappointed that the Continuing Resolutions approved by Congress failed to give the Federal judiciary a cost-of- living adjustment, COLA, for fiscal year 2003.

Earlier this year, Senator Hatch and I were joined by Senator DeWine and Senator Specter to cosponsor legislation in the Senate to provide the Federal judiciary with a COLA for the present fiscal year. House Judiciary Chairman Sensenbrenner was joined by that Committee's Ranking Democratic Member, Congressman Conyers, and others to introduce identical legislation. Congress eventually passed a measure to give the Judiciary their cost of living adjustment for fiscal year 2003 but this effort failed to compensate the judiciary for many other previously skipped COLAs.

The Fair and Independent Judiciary Act would correct the earlier failures to provide COLAs and prevent this situation from happening again.

It is important to put our budgetary treatment of this co-equal branch in historical context. In 1975, Congress enacted the Executive Salary Cost-of-Living Adjustment Act, intended to give judges, Members of Congress and other high-ranking Executive Branch officials automatic COLAs as accorded other Federal employees unless rejected by Congress. In 1981, Congress enacted Section 140 of Public Law 97-92, mandating specific congressional action to give COLAs to judges.

Five times in the last decade Congress failed to provide the Judiciary with a COLA. We believe that this treatment was unfair to the judiciary and that we should restore their salaries to what they would be had the COLAs been granted. In order to have their salaries reflect the current cost of living we should unlink the salaries of Members of Congress and Members of the Judiciary by repealing Section 140.

In their thorough report, the Volcker Commission recommended that Congress unlink judicial salaries from those of Members of Congress. The Commission explained that due to ``the reluctance of members of Congress to risk the disapproval of their constituents . . . Congress has regularly permitted salaries to fall substantially behind cost-of- living increases.'' Urgent Business for America: Revitalizing the Federal Government for the 21st Century, January 2003, Recommendation 10. Therefore, the Commission found that ``executive and judicial salaries must be determined by procedures that tie them to the needs of the government, not the career-related political exigencies of members of Congress.''

The Fair and Independent Judiciary Act would restore the skipped cost of living adjustments that occurred in 1995, 1996, 1997, 1999 and 2002 so that the salaries of our judges and justices are not outpaced by inflation.

Chief Justice Rehnquist has called judicial pay ``the most pressing issue'' facing the courts.

We look forward to Senate consideration of the Fair and Independent Judiciary Act to restore previously skipped cost of living adjustments for the Justices and judges of the United States. We hope we can all work together to preserve the vitality of our third branch of government and to instill even greater confidence in our federal courts.

I ask unanimous consent that the January 6, 2003 editorial from the Washington Post, and the text of the bill be printed in the Record.

Mr. President, I understand the distinguished chairman is on his way over. As we have evenly divided time and time is running, I will begin and will yield when he arrives.

We have another in a series of cloture votes on this divisive nomination today. Actually, nothing has changed significantly since the leadership forced the three previous cloture votes.

I did read in the New York Times over the weekend that Mr. Estrada spoke about the memos he wrote as being perhaps somewhat divisive. Maybe that is why the White House does not want us to see them. The only reason we are having these problems is the administration has refused to bring forward the writings on which one could form an idea whether he should have a lifetime appointment to the second highest court in the country.

The White House has had access to all these writings and they eagerly committed the political capital to go forward. But they don't want us to see them. The administration remains insistent that the Senate rubberstamp nominees without fulfilling the Senate's constitutional advise and consent role in this most important process.

Everyone has known for a long time how to solve the impasse in the Miguel Estrada nomination. The Democratic leader's letter pointed the way back in early February. Some say that the administration is proceeding this way because they do not care whether he goes through or not. They think somehow it is a political issue. That is the problem if this administration continues in its efforts to politicize the Federal courts.

There has been too much politicizing. The Federal courts are not a branch that belongs to either the Republican or Democratic party. They are not a branch of whoever is in the White House or in control of the Congress. They are the one independent branch of Government. They are supposed to be above politics, outside of politics, and

yet in this case the White House could easily move forward with this nomination but is choosing to keep it in limbo. Unfortunately, too many Members are willing to dance to that tune.

Remember, it says advise and consent not advise and rubberstamp. The administration and Mr. Estrada do not want to show Members his writings. This is part of the work and experience that made the White House such an eager supporter of him. The American people and their representative ought to know how he thinks and have the best basis to predict how he would act as a judge, whether as an ideologue or as an impartial judge.

Past administrations--and I have been here with President Ford, President Carter, President Reagan, former President Bush, and President Clinton--they have all shown similar type writings to the Senate. We had nominations of Robert Bork, William Rehnquist, Brad Reynold, Ben Civiletti, and others. Even this administration did so for a nominee to the Environmental Protection Agency.

We have had senior members in the Republican Party say they wish the White House would show some cooperation, as past White Houses have, to get forward on this. Instead, we continue being blocked by the administration's position when we should be going forward.

Of course.

I say to my friend from Illinois, of course I would. I have said this right along. I may or may not vote for Mr. Estrada based on what is in the writings, but I will never give a blank check to any President--I have not--Democrat or Republican. I want to know what is in there. After all, there have been statements by this person's supervisor that he did not fairly state the law in the course of his work. We should have the basis to determine the quality of his work.

As the Senator from Illinois knows, when I was chairman of the committee, in 17 months we certainly moved far more of President Bush's nominees than the Republicans did when they were in the chair the previous 17 months for President Clinton. I believe that we actually moved more than the previous 30-month period under them. I did not allow the secret holds they had used extensively to block President Clinton's nominees. At times, they actually required 100 Senators to be for somebody before they would go through it.

A former Republican leader accepted part of the blame for how the Senate came to this, and I appreciate him doing that. He acknowledged you filibuster a lot of different ways. The Republican majority often defeated nominees by making sure they were never given a hearing or a vote. I don't believe in that.

If a nominee will go through the normal process, if the White House will stop playing games, if they will stop stonewalling, I am perfectly willing to go forward.

I would think so, I say to my friend from Illinois. Again, the point is the White House has had access to these papers. Surely they did a thorough review of this nomination. Surely someone in the administration must know what these documents contain if they are refusing to provide them and Republican Senators are asserting that they are ``privileged''. I would hope that no one, and certainly no one with legal training, would assert a privilege without knowing whether it applies. My recollection is that the administration took several weeks to respond to our request for the documents. Surely they were not simply ignoring our request for those weeks. I would have assumed they were using that time to review the documents and determine what could be produced immediately and what might require further discussion. They want to put this young man, at 41 years old, on the second highest court in the land. But they don't want us to know about his legal work and judgment when he was working for the government. They are saying: We'll nominate; you rubberstamp. I am saying it is advice and consent. That has worked in the Constitution for all the history of this country and will continue to work.

We had an example of internal Justice Department documents that were the work on another of the President's controversial nominees that have previously been produced to the Senate. At least the papers came forth. We find that she, working for a previous Republican administration, had strongly organized, in fact, went out of her way to help support a tax exemption for a college that discriminated against African Americans, discriminated against Catholics, discriminated against Mormons, took the most radical position, but was a darling of the Republican Party. Her nomination to a major court of appeals position by this administration is now pending. But at least we knew of her work and at least she could be questioned on it.

I would say to my friend from Illinois that we began this because we were waiting for the distinguished chairman. He is here. I suggest I reserve the remainder of my time and yield to the distinguished chairman as I had agreed when we called off the quorum at the request of the Republican side.

Will the Senator yield? Do you have the name?

Is this one of those unnamed sources?

To date, there have been at least 77 editorials and op-eds in support of the position of Democratic Senators on the nominations of Mr. Miguel Estrada's nomination to the Court of the Appeals for D.C. Circuit. On March 6, 2003, I placed in the Congressional Record excerpts of the editorials and op-eds that had been published by that date, because Republicans had been asserting that there were only a handful of editorials or op-eds in support of our concerns. Here are some excerpts from 24 additional editorials and op-eds expressing concerns about Mr. Estrada's nomination, bringing the total to at least 77. This controversial nomination continues to divide, rather than to unite, the American people.

I ask unanimous consent to print in the Record excerpts of 24 recent editorials or op-eds, in addition to those printed last month.

Mr. President, I try to keep a straight face when I hear my good friend, the distinguished Senator from Utah, speaking, but it is hard. He has been able to master the ability to look stern and self- righteous, as he has throughout a recitation of the revisionist history here.

The question of precedent? The Republicans joined the filibusters of Stephen Breyer to the First Circuit, Judge Rosemary Barkett to the Eleventh Circuit, Judge H. Lee Sarokin to the Third Circuit, Judge Richard Paez to the Ninth Circuit, and Judge Marsha Berzon to the Ninth Circuit. We had to have cloture votes on all but one of these and on several others.

But as the former Republican leader admitted--and I commend him for this--they did not have to go to filibusters on most of these because they never brought them up at all. They never had a hearing on them. They never had a vote on them in committee or anywhere else. In effect, they had a filibuster of one. If any one Republican Senator objected to any one of President Clinton's nominees, or just a few, the caucus would make the determination they would never get a hearing. The distinguished chairman at that time would not give them a hearing. They would not get a vote. It was only if the caucus decided that they would be allowed to go forward would they even get a vote.

So it begs credulity to hear this kind of sophistry on the Senate floor and the nature of a ``filibuster'' being constantly redefined. They would not allow them to come to a vote at all.

During the 17 months when we controlled the Senate Judiciary Committee, we confirmed 100 of President Bush's nominees. We had hearings on 103. We voted down 2. We confirmed 100. There was no similar period of time when President Clinton was in office and the Republicans were in control that they passed anywhere near as many judges for President Clinton.

I wonder if I could have order just for the sake of precedent.

We moved them through. And we got rid of the anonymous holds. We got rid of the secret holds. I will explain in greater detail.

Mr. President, the Republican leadership in the Senate has chosen today for another in a series of cloture votes on this divisive nomination. Nothing has significantly changed since it forced the three previous cloture votes. The administration's obstinacy continues to impede progress to resolve this matter. The administration remains intent on packing the Federal circuit courts and on insisting that the Senate rubber stamp its nominees without fulfilling the Senate's constitutional advise and consent role in this most important process. The White House could have long ago helped solve the impasse on the Estrada nomination by honoring the Senate's role in the appointment process and providing the Senate with access to Mr. Estrada's legal work. Past administrations have provided such legal memoranda in connection with the nominations of Robert Bork, William Rehnquist, Brad Reynolds, Stephen Trott and Ben Civiletti, and even this administration did so with a nominee to the Environmental Protection Agency. In my statement in connection with the last cloture vote I outlined additional precedent for sharing the requested materials with the Senate as did Senator Kennedy.

We have the statement of Attorney General Robert H. Jackson, who later became one of our finest Supreme Court Justices, when he wrote an Attorney General Opinion in 1941 acknowledging that among the occasions when exceptions should be made and Executive department files would be produced to the Congress would be confirmations. As Attorney General Jackson noted:

Of course, where the public interest has seemed to justify

it, information as to particular situations has been supplied

to congressional committees by me and by former Attorneys

General. For example, I have taken the position that

committees called upon to pass on the confirmation of persons

recommended for appointment by the Attorney General would be

afforded confidential access to any information that we

have--because no candidate's name is submitted without his

knowledge and the Department does not intend to submit the

name of any person whose entire history will not stand light.

I mentioned the additional example of similar materials that were provided to Congress in 1982 by the Reagan administration when the Senate Finance Committee held a hearing to consider legislation to deny federal tax-exempt status to private schools practicing racial discrimination. A number of Justice Department memoranda, as well as communications between high-level officials, were turned over by the Reagan administration to the Senate Finance Committee in connection with the hearing, just months after the documents were first written. The issues at that hearing reveal that some of the documents turned over were much more sensitive than those requested of Mr. Estrada, but they were still provided to Congress by the Reagan administration.

The documents turned over to the Senate included:

Letters from Representative Trent Lott to Secretary Regan, IRS Commissioner Egger, and Solicitor General Lee, urging change in the administration's position on Bob Jones; memorandum from Associate Deputy Attorney General Bruce Fein to Deputy Attorney General Edward Schmults, advising Schmults on private schools; memorandum from Carolyn Kuhl, Special Assistant to the Attorney General, to Ken Starr, noting Reagan/Bush campaign statements on private schools; memorandum from Peter Wallison, Treasury General Counsel, to Secretary Regan briefing him on meeting with Representative Lott; memorandum from Treasury General Counsel Wallison to Deputy Secretary McNamar and Secretary Regan on Government's position in Bob Jones case; memorandum from Civil Rights Division Head, William Bradford Reynolds, to Attorney General Smith justifying changes in administration's position on Bob Jones; memorandum from Treasury Assistant Secretary for Public Affairs, Ann McLaughlin, to Deputy Secretary McNamar on ``press strategy'' for releasing Bob Jones decision; memorandum from IRS Chief Counsel Gideon to Treasury Deputy General Counsel Government's statement in

Bob Jones; letter from IRS Chief Counsel Gideon to Civil Rights Division Head Reynolds on formulation of Government's statement in Bob Jones; and memorandum from Assistant Attorney General Theodore Olson, Office of Legal Counsel, to Attorney General Smith and Deputy Attorney General Schmults responding to the analysis in Reynolds' memo on Bob Jones.

In 1982, the Republican administration at that time released to the Senate documents that included internal memoranda among high-level Justice Department officials, inter-agency communications, and documents relating to the government's position in an important Supreme Court case. They also included letters to the Solicitor General.

Moreover, the Reagan administration turned over these documents within months after being written, and no harm was done to the workings of the Justice Department or the administration. The Bush administration is claiming that it is unprecedented to turn over such documents--and that the release of documents written by Mr. Estrada 6 to 10 years earlier would irreparably harm the government. I urge the administration and Republican Senators to consider this additional precedent.

I also noted how in 2001, this White House agreed to give access to memoranda written by Jeffrey Holmstead, nominated to be an Assistant Administrator of the Environmental Protection Agency. The Senate Committee on Environment and Public Works requested memoranda from Holmstead's years of service in the White House counsel's office under former President Bush. In particular, the Committee was interested in materials related to Holmstead's handling of an amendment to the Clean Air Act and other environmental issues. In the summer of 2001, the Bush administration resolved an impasse with the Committee over the nomination by permitting Committee staffers to review memoranda that Holmstead wrote while in the White House counsel's office. In sum, the administration allowed access to documents from the White House counsel's office--a more sensitive post than the one Mr. Estrada held when he was in the Department of Justice.

So, despite this administration's continued insistence on confidentiality, it has turned over, allowed access or worked to reach an accommodation on access to documents similar to those requested in connection with the Estrada nomination in other cases and for other committees. In the matter of the Estrada nomination, the question before the Senate concerns a lifetime appointment to the second-highest court in the land.

The former Republican leader accepted ``part of the blame'' for how the Senate has come to consider judicial nominations. I appreciate that because it is one of the few times a Republican Senator has accepted responsibility for what happened during the years in which the Republican majority in the Senate blocked and delayed so many of President Clinton's judicial nominees. The Senator from Mississippi also acknowledged that ``you filibuster a lot of different ways.'' I thank the Senator from Mississippi for trying to be constructive and for suggesting that ``something can be worked out'' on the request for Mr. Estrada's work papers from the Department of Justice.

A recent edition of The Weekly Standard, a report suggests that other Senate Republicans, ``several veteran GOP Senate staffers'' and ``a top GOP leadership aide'' asked the White House to show some flexibility and to share the legal memoranda with the Senate to resolve this matter, but they were rebuffed. It is regrettable that the White House will not listen to reason from Senate Democrats or Senate Republicans. If they had, there would be no need for this cloture vote. The White House is less interested in making progress on the Estrada nomination than in trying to score political points and to divide the Hispanic community.

The real ``double standard'' here is that the President selected Mr. Estrada based in large part on his work for four and a half years in the Solicitor General's Office as well as for his ideological views, but the Administration says that the Senate may not examine his written work from the office that would shed the most light on his views. The White House says that the Senate should not consider the very ideology the White House took into account in selecting a 41-year-old for a lifetime seat on the country's second-highest court. Another double standard at work here is that this is a nominee who is well known for having very passionate views about judicial decisions and legal policy and is well known for being outspoken, and yet he has refused to share his views with the very people charged with evaluating his nomination. It seems to be a perversion of the constitutional process to require the Senate to stumble in the dark about his views, when he shares his views quite freely with others and when this Administration has selected him for the privilege of this high office, and for life, based on those views.

Just this past weekend, a story in The New York Times reported that during his nomination hearing which I scheduled and Senator Schumer chaired last September, ``Mr. Estrada took what is often called `the judicial fifth,' declining to answer many questions by saying that he could not comment on issues that might come before him should he be confirmed.'' The report correctly continued: ``It is a common approach for judicial nominees, but Mr. Estrada was more reticent than most.'' The report also notes that: ``Mr. Estrada gave a hint that what the memorandums might disclose was his impatient manner when he told the committee he might have harshly dismissed some arguments by junior lawyers.'' Our review of the requested documents would end the mystery and speculation.

One of the most disconcerting aspects of the manner in which the Senate is approaching these divisive judicial nominations is what appears to be the Republican majority's willingness to sacrifice the constitutional authority of the Senate as a check on the power of the President in the area of lifetime appointments to our federal courts. It should concern all of us and the American people that the Republican majority's efforts to re-write Senate history in order to rubber stamp this White House's federal judicial nominees will cause long-term damage to this institution, to our courts, to our constitutional form of government, to the rights and protections of the American people and to generations to come.

Republicans are now willing to breach the 24-year-old rule of the Judiciary Committee that had always protected the right of the minority to debate a matter. Republicans have now established a double standard with respect to the opposition of home-state Senators. If the opposition to a judicial nominee is that of a Republican home State Senator to a nominee of a Democratic President, it is honored and no hearing may go forward. But if the opposition is to a judicial nominee of a Republican President by a Democratic home State Senator, well that is too bad and the Republican majority does not choose to defer or care or honor that objection.

The White House is using ideology to select its judicial nominees but is trying to prevent the Senate from knowing the ideology of these nominees when it evaluates them. It was not so long ago when then- Senator Ashcroft was chairing a series of Judiciary Committee hearings at which Edwin Meese III testified:

I think that very extensive investigations of each

nominee--and I don't worry about the delay that this might

cause because, remember, those judges are going to be on the

bench for their professional lifetime, so they have got

plenty of time ahead once they are confirmed, and there is

very little opportunity to pull them out of those benches

once they have been confirmed--I think a careful

investigation of the background of each judge, including

their writings, if they have previously been judges or in

public positions, the actions that they have taken, the

decisions that they have written, so that we can to the

extent possible eliminate people who would turn out to be

activist judges from being confirmed.

Timothy E. Flanigan, an official from the administration of the President's father, and who more recently served as Deputy White House Counsel, helping the current President select his judicial nominees, testified strongly in favor of ``the need for the Judiciary Committee and the full Senate to be extraordinarily diligent in examining the judicial philosophy of potential nominees.'' He continued:

In evaluating judicial nominees, the Senate has often been

stymied by its inability to obtain evidence of a nominee's

judicial philosophy. In the absence of such evidence, the

Senate has often confirmed a nominee on the theory that it

could find no fault with the nominee.

I would reverse the presumption and place the burden

squarely on the shoulders of the judicial nominee to prove

that he or she has a well-thought-out judicial philosophy,

one that recognizes the limited role for Federal judges. Such

a burden is appropriately borne by one seeking life tenure to

wield the awesome judicial power of the United States.

Now that the occupant of the White House no longer is a popularly- elected Democrat but a Republican, these principles seem no longer to have any support within the White House or the Senate Republican majority. Fortunately, our constitutional principles and our Senate traditions, practices and governing rules do not change with the political party that occupies the White House or with a shift in majority in the Senate.

The White House, in conjunction with the new Republican majority in the Senate, is purposeful in choosing these battles over judicial nominations. Dividing rather than uniting has become their modus operandi. The decision by the Republican Senate majority to focus on controversial nominations says much about their mistaken priorities. The Republican majority sets the agenda and they schedule the debate, just as they have again here today.

I have served in the Senate for 29 years, and until recently I have never seen such stridency on the part of an administration or such willingness on the part of a Senate majority to cast aside tradition and upset the balances embedded in our Constitution, in order to expand presidential power. What I find unprecedented are the excesses that the Republican majority and this White House are willing to indulge to override the constitutional division of power over appointments and longstanding Senate practices and history. It strikes me that some Republicans seem to think that they are writing on a blank slate and that they have been given a blank check to pack the courts.

They show a disturbing penchant for reading the Constitution to suit their purposes of the moment rather than as it has functioned for more than 200 years to protect all Americans through its checks and balances.

The Democratic Leader pointed the way out of this impasse again in his letter to the President on February 11. It is regrettable that the President did not respond to that reasonable effort to resolve this matter. Indeed, the letter he sent last week to Senator Frist was not a response to Senator Daschle's reasonable and realistic approach, but a further effort to minimize the Senate's role in this process by proposing radical changes in Senate rules and practices to the great benefit of this Administration.

A distinguished senior Republican Senator saw the reasonableness of the suggestions that the Democratic leader and assistant leader have consistently made during this debate when he agreed on February 14 that they pointed the way out of the impasse. Regrettably, his efforts and judgment were also rejected by the administration.

The Supreme Court, in an opinion authored last year by none other than Justice Scalia, one of this President's judicial role models, instructs that judicial ethics do not prevent candidates for judicial office or judicial nominees from sharing their judicial philosophy and views.

With respect to ``precedent,'' Republicans not only joined in the filibuster of the nomination of Abe Fortas to be Chief Justice of the United States Supreme Court, they joined in the filibuster of Stephen Breyer to the First Circuit, Judge Rosemary Barkett to the Eleventh Circuit, Judge H. Lee Sarokin to the Third Circuit, and Judge Richard Paez and Judge Marsha Berzon to the Ninth Circuit. The truth is that filibusters on nominations and legislative matters and extended debate on judicial nominations, including circuit court nominations, have become more and more common through Republicans' own actions.

Of course, when they are in the majority Republicans have more successfully defeated nominees by refusing to proceed on them and have not publicly explained their actions, preferring to act in secret under the cloak of anonymity. From 1995 through 2001, when Republicans previously controlled the Senate majority, Republican efforts to defeat President Clinton's judicial nominees most often took place through inaction and anonymous holds for which no Republican Senator could be held accountable. In effect, these were anonymous ``filibusters.''

Republicans held up almost 80 judicial nominees who were not acted upon during the Congress in which President Clinton first nominated them, and they eventually defeated more than 50 judicial nominees without a recorded Senate vote of any kind, just by refusing to proceed with hearings and committee votes.

Beyond judicial nominees, Republicans also filibustered the nomination of executive branch nominees. They successfully filibustered the nomination of Dr. Henry Foster to become Surgeon General of the United States in spite of two cloture votes in 1995. Dr. David Satcher's subsequent nomination to be Surgeon General also required cloture but he was successfully confirmed.

Other executive branch nominees who were filibustered by Republicans include Walter Dellinger's nomination to be Assistant Attorney General, and two cloture petitions were required to be filed and both were rejected by Republicans. In this case we were able finally to obtain a confirmation vote after an elaborate effort, and Mr. Dellinger was confirmed to that position with 34 votes against him. He was never confirmed to his position as Solicitor General because Republicans had made clear their opposition to him. In addition, in 1993, Republicans objected to a number of State Department nominations and even the nomination of Janet Napolitano to serve as the U.S. Attorney for Arizona, resulting in cloture petitions.

In 1994, Republicans successfully filibustered the nomination of Sam Brown to be an Ambassador. After three cloture petitions were filed, his nomination was returned to President Clinton without Senate action. Also in 1994, two cloture petitions were required to get a vote on the nomination of Derek Shearer to be an Ambassador. And it likewise took two cloture petitions to get a vote on the nomination of Ricki Tigert to chair the FDIC. So when Republican Senators now talk about the Senate Executive Calendar and presidential nominees, they must be reminded that they recently filibustered many, many qualified nominees.

Nonetheless, in spite of all the intransigence of the White House and all of the doublespeak by some of our colleagues on the other side of the aisle, I can report that the Senate has moved forward to confirm 115 of President Bush's judicial nominations since July 2001. That total includes 15 judges confirmed so far this year, including two controversial nominees to the circuit courts.

Those observing these matters might contrast this progress with the start of the 106th Congress in which the Republican majority in the Senate was delaying consideration of President Clinton's judicial nominees. In 1999, the first hearing on a judicial nominee was not until mid-June. The Senate did not reach 15 confirmations until September of that year. Accordingly, the facts show that Democratic Senators are being extraordinarily cooperative with a Senate majority and a White House that refuses to cooperate with us. We have made progress in spite of that lack of comity and cooperation.

We worked hard to reduce federal judicial vacancies to the lowest level it has been in more than seven years. That is an extremely low vacancy number based on recent history and well below the 67 vacancies that Senator Hatch termed ``full employment'' on the federal bench during the Clinton administration.

It is unfortunate that the White House and some Republicans have insisted on this confrontation rather than working with us to provide the needed information so that we could proceed to an up-or-down vote. Some on the Republican side seem to prefer political game playing, seeking to pack our courts with ideologues and leveling baseless charges of bigotry, rather than to work with us to resolve the impasse over this nomination by providing information and proceeding to a fair vote.

I was disappointed that Senator Bennett's straightforward colloquy with

Senator Reid and me on February 14, which pointed to a solution, was never allowed by hard-liners on the other side to yield results. I am disappointed that all my efforts and those of Senator Daschle and Senator Reid have been rejected by the White House. The letter that Senator Daschle sent to the President on February 11 pointed the way to resolving this matter reasonably and fairly. Republicans would apparently rather engage in politics.

Republican talking points will undoubtedly claim that this is ``unprecedented''. They will ignore their own recent filibusters against President Clinton's executive and judicial nominees in so doing. The only thing unprecedented about this matter is that the administration and Republican leadership have shown no willingness to be reasonable and accommodate Democratic Senators' request for information traditionally shared with the Senate by past administrations. That this is the fourth cloture vote on this matter is an indictment of Republican intransigence on this matter, nothing more. What is unprecedented is that there has been no effort on the Republican side to work this matter out as these matters have always been worked out in the past. What is unprecedented is the Republican insistence to schedule cloture vote after cloture vote without first resolving the underlying problem caused by the administration's inflexibility.

I urge the White House and Senate Republicans to end the political warfare and join with us in good faith to make sure the information that is needed to review this nomination is provided so that the Senate may conclude its consideration of this nomination. I urge the White House, as I have for more than two years, to work with us and, quoting from a recent column by Thomas Mann of The Brookings Institute, to submit ``a more balanced ticket of judicial nominees and engag[e] in genuine negotiations and compromise with both parties in Congress.''

The President promised to be a uniter not a divider, but he has continued to send us judicial nominees that divide our nation and, in this case, he has even managed to divide Hispanics across the country. The nomination and confirmation process begins with the President, and I urge him to work with us to find a way forward to unite, instead of divide, the nation on these issues.

Mr. President, does the Senator from Massachusetts wish the remainder of my time?

Madam President, as my statement indicated, the Senate did have filibusters on Judge Stephen Breyer, Judge Rosemary Barkett, Judge H. Lee Sarokin, Judge Richard Paez, and Judge Marsha Berzon, contrary to the implication of my good friend from Utah.

I actually have sympathy for my friend from Utah. He has been put in an untenable position. He is seeking to uphold an unreasonable position taken by the White House. The White House is trying to tell the Senate what to do. He is being a good soldier and I commend him for that.

The fact is, if the Senate was allowed to be the Senate and make its own decisions and not let the White House dictate what to do, this matter would have been settled a long time ago. We would have followed the tradition and logic set forth by former Supreme Court Justice Robert Jackson when he was Attorney General. He indicated that such material should be provided to the Senate. He wrote:

. . . I have taken the position that committees called upon

to pass on the confirmation of persons recommended for

appointment by the Attorney General would be afforded

confidential access to any information that we have--because

no candidate's name is submitted without his knowledge and

the Department does not intend to submit the name of any

person whose entire history will not stand light.

The White House has access to Mr. Estrada's papers. It is hard to believe that they have not reviewed these papers. They are part of the information that the administration has about one of its nominees. All previous administrations followed the path of working with the Senate and making sure that the entire history of the person would stand the light of scrutiny. This administration does not want us to know.