Floor Statements

Mr. President, the risks and health effects of mercury contamination continue to be serious and immediate. We have known about mercury pollution for many years. It remains one of, if not the last of, the

major toxic pollutants without a comprehensive plan to control its spread. We know where the sources contributing to mercury contamination are, we have a pretty good idea where it goes, and we definitely know what harm it causes to people and to wildlife. Yet, serious contamination continues. That is why I am reintroducing important legislation today to confront this problem directly.

The most serious threat of mercury pollution is to our children. Just this week, the Environmental Protection Agency finally released their report, ``American's Children and the Environment: Measures of Contaminants, Body Burdens and Illnesses.'' The report should alarm all of us. It highlights the neurological harm that can come to children exposed to elevated mercury levels while in the womb and during the first years of their lives. As more mercury is dumped into our environment, more children will be at risk. Today, according to the Centers for Disease Control, 1 in 12 women of childbearing age has mercury levels above the safe health threshold established by EPA.

Although the report comes nine months late, it does highlight a serious gap between the Administration's ``Clear Skies'' proposal and the Leahy/Snowe bill when it comes to reducing mercury levels. The only thing clear about the Administration's proposal is that it won't protect Vermont's children from the pollution spewing out of power plants in the Midwest. The Administration's Clear Skies proposal will actually relax current mercury emissions law.

Our bill will reduce mercury emission from coal-fired power plants by 90 percent. The Clear Skies proposal would only reduce emissions by 50 percent in the near future and 70 percent over the next 15 years. Not only does this fall far short of our proposal, but it also falls short of current law and the Administration's previous position. In 2001, EPA Administrator Christie Todd Whitman said the EPA had initiated strict ``maximum achievable control technology'' MACT, standards for oil- and coal-fired electric utility units as required under section 112 of the Clean Air Act. At that time, Whitman said that mercury reductions are ``necessary now, not decades from now.''

Administrator Whitman was right then and wrong now. With industry's vigorous opposition to tighter mercury controls and the Bush administration's record to date rolling back environmental legislation regulation, especially the Clean Air Act, I worry that more children will be put at risk as the Administration continues to delay the MACT standards and other policies. The delays and rollbacks make you ask whose interests the Administration is putting first--children, or the big powerplant companies?

I ask for unanimous consent that a summary of the bill be printed in the Record.

Mr. President, the risks and health effects of mercury contamination continue to be serious and immediate. We have known about mercury pollution for many years. It remains one of, if not the last of, the

major toxic pollutants without a comprehensive plan to control its spread. We know where the sources contributing to mercury contamination are, we have a pretty good idea where it goes, and we definitely know what harm it causes to people and to wildlife. Yet, serious contamination continues. That is why I am reintroducing important legislation today to confront this problem directly.

The most serious threat of mercury pollution is to our children. Just this week, the Environmental Protection Agency finally released their report, ``American's Children and the Environment: Measures of Contaminants, Body Burdens and Illnesses.'' The report should alarm all of us. It highlights the neurological harm that can come to children exposed to elevated mercury levels while in the womb and during the first years of their lives. As more mercury is dumped into our environment, more children will be at risk. Today, according to the Centers for Disease Control, 1 in 12 women of childbearing age has mercury levels above the safe health threshold established by EPA.

Although the report comes nine months late, it does highlight a serious gap between the Administration's ``Clear Skies'' proposal and the Leahy/Snowe bill when it comes to reducing mercury levels. The only thing clear about the Administration's proposal is that it won't protect Vermont's children from the pollution spewing out of power plants in the Midwest. The Administration's Clear Skies proposal will actually relax current mercury emissions law.

Our bill will reduce mercury emission from coal-fired power plants by 90 percent. The Clear Skies proposal would only reduce emissions by 50 percent in the near future and 70 percent over the next 15 years. Not only does this fall far short of our proposal, but it also falls short of current law and the Administration's previous position. In 2001, EPA Administrator Christie Todd Whitman said the EPA had initiated strict ``maximum achievable control technology'' MACT, standards for oil- and coal-fired electric utility units as required under section 112 of the Clean Air Act. At that time, Whitman said that mercury reductions are ``necessary now, not decades from now.''

Administrator Whitman was right then and wrong now. With industry's vigorous opposition to tighter mercury controls and the Bush administration's record to date rolling back environmental legislation regulation, especially the Clean Air Act, I worry that more children will be put at risk as the Administration continues to delay the MACT standards and other policies. The delays and rollbacks make you ask whose interests the Administration is putting first--children, or the big powerplant companies?

I ask for unanimous consent that a summary of the bill be printed in the Record.

Madam President, regarding this debate on Miguel Estrada, we do have a lot of other issues that seem to be ignored. I am back home almost every week in Vermont and I don't find anybody talking to me about Miguel Estrada. Even when the White House has sent people up and various special interest groups to attack me, nobody seems to care--``either the press, the people in my State,'' or anybody else. But what they do care very much about is the economy and Iraq.

More than a half century ago in the aftermath of two catastrophic world wars, the United Nations Charter was signed in San Francisco. It was dedicated to the prevention and peaceful resolution of conflict. The U.N. was largely a creation of the United States, with the support of the other great world powers.

The U.N. has had a difficult history. With the notable exception of the Korean war, the Soviet Union and the United States each worked throughout the Cold War to ensure that the U.N. Security Council remained little more than a toothless forum for debating and passing resolutions of little or no effect.

Even in recent years, the United Nations has had a string of failures. It was unable to prevent the slaughter of half a million people in Rwanda. It failed to prevent the destruction of the former Yugoslavia, which was ultimately stopped only by NATO's intervention. United Nations resolutions seeking to resolve the Israeli--Palestinian conflict have been routinely ignored.

The United Nations has also passed resolutions aimed at eliminating Iraq's nuclear, chemical, and biological weapons programs, but the Iraqi Government has flagrantly tried to subvert those resolutions.

The United Nations is frequently blamed for these failures. It is convenient to ridicule a multilateral organization that often seems to be its own worst enemy. But there are also many examples of U.N. successes, like peacekeeping missions that are strongly supported by the United States but rarely involve any commitment of U.S. troops.

The U.N.'s effectiveness depends on the political--will or lack of will--of its 191 member states. No country--no country--bears more responsibility than the United States for the success or failure of the United Nations. This has never been more true than today when solving so many of the world's problems--especially combating terrorism--depend on U.S. leadership and the cooperation of other nations.

Not surprisingly, when it has served its interests, this administration has praised the United Nations and has urged the Congress to provide the funds to support it. In fact, a Bush administration publication states:

Acting through the United Nations allows the United States

to share the risks and costs of responding to international

crises.

I applauded President Bush when he went to the United Nations last September to seek a resolution calling for the return of U.N. weapons inspectors to Iraq. I and others here had urged him to take that step, at a time when many of the President's advisers were insisting that a resolution was both unnecessary and unwise.

And I commended Secretary Powell for recognizing the importance of securing United Nations support for disarming Iraq, and for his work in obtaining a unanimous vote of the U.N. Security Council for that resolution.

Since then, the inspectors have reported mixed cooperation from the Government of Iraq. They have visited hundreds of sites but have not found significant evidence of Saddam Hussein's weapons of mass destruction, despite Saddam Hussein's failure to explain what happened to the thousands of tons of chemical and biological weapons material that was known to exist when the inspectors left Iraq 5 years ago.

The administration's response, with justification, is that Saddam Hussein is once again playing a cat-and-mouse game of deceiving the inspectors, and that time has finally run out. But the solution is not to direct threats and name-calling at some of our oldest allies, or to dismiss the U.N. as irrelevant just because some of its members disagree with us. It is counterproductive and beneath a great nation.

It is no less harmful to mislead the American people. Yesterday's Washington Post reported that the President and other administration officials continue to say publicly that the President has not made a final decision about whether to invade Iraq. These statements lack credibility, especially when the Pentagon continues to amass tens of thousands of U.S. troops on Iraq's borders.

Yet the White House is telling our potential coalition partners that the decision to invade Iraq has been made. The President has made it, they say, and nothing the U.N. Security Council says or does will change that. They warn that unless the U.N. Security Council abandons the inspections process and supports a U.S.-led military invasion, the United Nations will become irrelevant.

At the same time that White House officials dismiss any meaningful role for the Security Council in the decision to go to war, they are calling on the U.N. to prepare to help take care of as many as 2 million Iraqi refugees once the war begins. And they make no secret of the fact that they expect the U.N. to play a central role in the reconstruction of a post-Saddam Iraq.

One of the lessons of the gulf war was that it was far safer for our troops, and of critical importance to our continued relations with the Arab world, to build a broad international coalition in support of the use of force. The importance of that coalition has been lauded by administration officials and Members of Congress, time and again, in public statements and in testimony.

Nothing that has happened since, and nothing that we have heard from this President or his advisers leads one to believe that we should go to war without such a coalition. To the contrary, with the threat of international terrorism fueled by Islamic extremists who fan the flames of hatred of Americans, the arguments for building a strong coalition with the backing of the United Nations are even more compelling.

It has been 28 years since I was first elected to represent my State of Vermont in the Senate. I have served during the administrations of five Presidents Democrat and Republican. I have had my share of agreements and disagreements with each of these Presidents on issues of great importance--from the Vietnam war to the dilemma we face today with Iraq.

But never, in all those years, have I seen such an opportunity to use the tremendous influence of the United States to unite the world behind the common goal of disarmament and in doing so to strengthen the United Nations, mishandled with such arrogance.

Today, apparently only weeks away from a war with Iraq, the United States is telling the rest of the world, ``We don't need you.'' Even though we will be risking the lives of American men and women in uniform to enforce a United Nations resolution, we are

going to war in spite of our U.N. allies who urge caution and patience.

The administration's ultimatum on Iraq is but the latest example of its disdain for working with other nations to solve global problems from arms control to the environment.

They thumbed their noses at the Kyoto Treaty, even though the United States uses wastefully a quarter of the world's resources and is by far the largest contributor to global warming.

They sabotaged the International Criminal Court, despite the fact that the United States was instrumental in its conception.

They have walked away from the Anti-Ballistic Missile Treaty and from an agreement to strengthen the biological weapons convention.

Reasonable people may disagree about the merits of these treaties, but the administration has simply walked away. They have offered no constructive alternatives, they have unnecessarily poisoned relations with allies, and they have undermined our Nation's interests.

This pattern has not only alienated and angered those whose support we need, it has made it easier for others to ignore their own international obligations. It has needlessly and recklessly squandered the good will we felt after September 11, when the Star-Spangled Banner played outside Buckingham Palace and France's Le Monde declared, ``We are all Americans''. This attitude has made us less secure, not more. The administration squandered that worldwide support.

I have no doubt, nor does anyone in this Chamber, that our armed forces can defeat Saddam Hussein's army, which according to all reports is far weaker than it was a decade ago. Nor do any of us differ about the desire to see an end to Saddam Hussein's despicable regime. But the risk that he will use chemical or biological weapons, and of the horror that could result for our own troops, as well as the civilian casualties, are hardly mentioned by the White House.

In the meantime, the situation in Afghanistan so recently the focus of attention remains extremely unstable.

In fact, I read today that Afghanistan has become the largest opium exporter in the world.

The survival of the Karzai government is far from certain, as Pakistan, Russia, and Iran continue to provide support and sanctuary to Afghan warlords and to the Taliban who fled.

Osama bin Laden continues to broadcast threats against Americans, and al-Qaida remains active in dozens of countries.

A nuclear crisis on the Korean peninsula threatens to spiral out of control.

In the Middle East, hardly a day passes without shootings or bombings by both Israelis and Palestinians. The administration appears to have abandoned that crisis.

Our allies are divided about the need to abort the U.N. inspections process and launch a preemptive military invasion of Iraq, and a majority of the American people oppose the use of unilateral U.S. military force.

I am not among those who believe that under no circumstances would force ever be justified to disarm Saddam Hussein. But why now, when there is such discord even among those who agree about the need for Iraq to disarm? Why now, when there is no realistic chance that Saddam Hussein will seek to carry out an act of aggression as long as the U.N. inspectors are there? Why now, when the United Nations is seized with this issue? Why now, when giving the inspectors more time could bring more key nations on board with us if the use of force becomes necessary? Why rush to act in a way that will weaken the United Nations, that will further isolate us from many of our closest allies and create more anti-Americanism and quite possibly more terrorists?

This country is not close to being united in favor of a preemptive, unilateral war with Iraq. It is not a question of whether we can defeat Saddam Hussein. It is a question of the long-term risks to our own security.

The President should listen to the American people. Hundreds of thousands of Americans have braved the freezing cold in recent weeks, as have millions of people in Europe and elsewhere, to demonstrate their opposition to the President's policy. They are protesting not in sympathy with the Iraqi government but in opposition to a war that might yet be prevented.

So today, as our Government moves inexorably towards war, we must continue to question, we must continue to debate, we must continue to do everything we can to support a policy that makes our country and the world safer, not only for tomorrow but for next year and beyond.

If war comes, let us be able to say that it was only because we and our allies exhausted every other option, that we acted with the support of the Security Council, and in doing so we made the United Nations stronger.

I yield the floor.

Madam President, it is a fair statement. In fact, I think in mid-July we finally got an agreement to organize the committee. Ten minutes after we got that agreement, I noticed the first hearing and set the first hearing on President Bush's judges.

The Republicans had been in charge up to that time--up until July-- and there were a number of nominees of President Bush, but they had not held any hearings whatsoever. I began the process of holding them within 10 minutes of the time I became chairman. Then, during the next 17 months, we held hearings on 103, we voted through 100, voted down 2, and had 1 remaining.

There is no 17-month period under Republican control with President Clinton when that was done.

The Senator is absolutely correct. Obviously, we all remember how much disruption there was. The letter to the distinguished Senator from South Dakota ended up closing the Hart Building and temporarily the Dirksen Building. The letter that was sent to me was so toxic that two people who touched it died. Died. We had not canceled a single hearing. In fact, on one day when the Senate was being evacuated because we had scheduled a time to vote out some of President Bush's nominees, I literally grabbed Senators and held them here long enough to vote out some of President Bush's nominees.

I say this knowing that when the Republicans were in charge and President Clinton was in office, we sometimes went 8 or 9 months without even having a vote on nominees. We were doing it several times a month.

I appreciate the Senator asking those questions.

The distinguished Senator is absolutely correct. I might say that I commend especially the staff who in some instances were working out of their cars, working out of my hideaway or in the hallways, just because even our committee rooms were closed. I had people working out of the family room in my house. We did all of this so we could continue what turned out to be a recordbreaking number of hearings and votes on President Bush's nominees.

Mr. President, I was about to congratulate the junior Senator from Tennessee on the same thing.

I am sorry that my good friend from Tennessee--whom I admire greatly; we worked together when he was in the President's Cabinet; we worked on many different things--I am sorry it happens to be a speech where he and I are on different sides. It was done with his usual care and cogency. He spoke to his experience, both as a former Governor with a distinguished record, a former Cabinet member with a distinguished record, one who served in business with a distinguished record. I appreciate having him here.

Sometimes debate can get rancorous and personal. To hear someone who takes a position, albeit different from mine, who does it with care, reflecting his past experience--I compliment the Senator from Tennessee.

Mr. President, we have heard a lot about Mr. Estrada and whether he has or has not answered questions. Obviously, I believe he has not. The President of the United States again today asked the Senate to do something that no President of either party should ask for. He asked the Senate to vote without having straightforward answers for a nominee for a lifetime position as a Federal judge on one of the most significant courts of this country.

That is not something that would help the Federal judiciary, but instead would set a dangerous precedent that would lessen the independence of the Federal judiciary. When a nominee does not answer basic questions, the Senate clearly has a constitutional responsibility to ask for the answers.

Mr. Estrada will not answer basic questions about his judicial philosophy, yet he has asked the Senate to confirm him to a lifetime job to the second highest court in the land where that judicial philosophy will determine, in many instances, which way that court will rule. That court affects every single American in countless ways through its decisions on everything from clean air and water to the rights of working men and women, from voting rights to all other civil rights law that protect minorities.

Becoming a Federal judge for a lifetime is a privilege, not a right. No nominee should be rewarded for stonewalling the Senate and the American people. The Constitution directs Senators to use their judgment in voting on judicial nominees, not to rubberstamp them.

The Democratic-controlled Senate confirmed a record 100 of President Bush's judicial nominees, acting faster and more fairly than the Republicans did with President Clinton's nominees. We began the process of the first hearing within 10 minutes of the time I became chairman of the Senate Judiciary Committee.

But President Bush has also proposed several controversial nominees, such as Miguel Estrada, who divide the American people and the Senate. The President can end this impasse. I hope he will act to give Senators the answers they need to make informed judgments about this nomination. The President can also help by choosing mainstream judicial nominees who can unite instead of divide the American people. The White House knows very well how easily and quickly they can bring this matter forward for a vote. They would rather make a political statement than to have a vote on a nomination.

Especially at a time when we have so many other issues before us--it has been said a record number of Americans are out of work--when a record number of jobs are being lost in this country, when more jobs are being lost under the President than any President, certainly in my lifetime, we are going to spend week after week in the Senate regarding an extremely highly paid lifetime job for one person.

It would seem a little bit more fair to those who do not have lifetime jobs, to

those who are not paid this amount, to the millions of Americans who have lost jobs during the last 2 years, to talk about ways of putting them back to work. I hope the President will pay attention to that.

I said more people have lost jobs during his Presidency than during the Presidency of certainly every President I have served with, and I believe any President in my lifetime.

We should be talking about preserving prescription drugs. Senator Feingold will introduce the Preserving Prescription Drug Discount Act tomorrow. I am pleased to be an original cosponsor of this important legislation. It will address an issue of great concern to me and to so many of the moderates. American drug companies threaten to stop doing business with Canadian pharmacies. How does this affect us? Every one of us who is in a State that comes along the Canadian border is affected. This legislation is a response to the announcement by pharmaceutical giant GlaxoSmithKline to stop supplying Canadian pharmacies that provide American consumers the same prices the Canadians receive.

It is a sad commentary that the richest, most powerful nation on Earth has so many of our citizens who are forced to choose between buying necessities such as food and heat and the prescription drugs they need to live healthy, productive lives. Many Vermonters in these difficult circumstances cross the border into Canada to purchase prescription drugs at dramatically lower prices, sometimes saving up to 80 percent. There is a need for lower cost prescription drugs. It is unconscionable that at a time when pharmaceutical industry profits are soaring, a company such as Glaxo targets the most vulnerable consumers in order to protect what is for them a very large bottom line.

When we have 45 million Americans, most of them working Americans, who do not have medical insurance in this country, we have millions out of jobs and who have lost their jobs in the last 2 years, we ought to at least stand up and tell this pharmaceutical giant: Do not cut off this lifeline.

Vermont is so often at the forefront of developing innovative strategy to combat high health care costs, including announcing a partnership with Michigan and Wisconsin to buy prescription drugs in bulk. This will save the residents of these three States millions of dollars, and it is a step in the right direction toward making prescription drugs more affordable for our citizens.

Unfortunately, for the same consumers, Glaxo's new proposal represents a giant step backward. Both chambers of the Vermont State Legislature responded swiftly and passed a resolution regarding Glaxo's troubling plan, urging the company to reverse its policies. The Vermont lawmakers even went so far as to suggest it may consider requiring all of Glaxo's prescriptions to be considered through a review process before they could be prescribed to State-funded programs.

The Preserving Prescription Drug Discounts Act that my friend, Senator Feingold, will introduce tomorrow, goes one step further than the Vermont House's recommendation.

Under this bill, companies that discriminate against Canadian pharmacies that pass along discounts to American consumers would not be allowed to deduct expenses related to research and development from their taxes.

Glaxco's policy would punish American consumers. There is no other way to describe it. It is not a policy that American taxpayers should support with Government benefits such as tax credits when they openly act to punish American consumers. We American consumers are also American taxpayers and should not have to give them even further benefits.

I hope the quick passage of this measure will prompt Glaxco to reconsider its policy. It is a wrong policy. It is a mean policy. It is an irresponsible policy. I hope other companies will think twice before copying such a mean and irresponsible policy.

We have a responsibility to take the steps necessary to ensure that our citizens have access to health care, including prescription drugs they need and deserve.

I have worked over the years to ease access to generic drugs, to ensure privacy for individuals' medical records, and to continue to work to ensure that our seniors and individuals with disabilities would soon have a voluntary prescription drug benefit as part of Medicare.

The health care challenges facing our Nation are complex. The solutions are not easy. It may take some time to find the necessary solutions to these challenges. In the meantime, we must embrace the issues we can promptly address. That is what the Preserving Description Drug Discounts Act will do. I hope other Senators will join in supporting Senator Feingold.

Mr. President, as I said, I think it is unfortunate. This matter could easily be resolved. The White House is uninterested in doing that.

The President's Counsel almost derisively dismissed a suggestion made by one of the respected senior Republicans in this body for resolving this issue. It makes me think they do not want to bring this to a vote. They would rather talk about bringing this to a vote. That does very little for either the independence of the Federal judiciary, and certainly the question of the independence of the Senate.

At times I get the impression the White House considers the Senate some kind of a constitutional nuisance to be ignored. It is almost as though they issue marching orders, and the Senate should fall in line, from how we should organize on through.

Presidents come and go. I respect all the Presidents and admire their willingness to lead our great country. But the Senate stays here long after any individual President. We either fulfill our obligations of advice and consent or we become a rubberstamp. Prior to my becoming chairman, for 6 months the Republican majority of that time did not hold a single hearing on any of President Bush's judicial nominees. In 17 months I held hearings on 103, we confirmed 100, and voted down 2. That is on top of hundreds upon hundreds of other nominees for everything from U.S. Marshals to the Director of the INS to the head of the Drug Enforcement Agency to the U.S. attorneys. It was pretty productive.

When I listen to some of the statements being made by my friends on the other side, you would think we did nothing. Maybe they are thinking of the months upon months upon months when they would not move any judges for President Clinton and do not want to look at the fact that we were moving them almost every week. We had to, during 17 months. During those 17 months we had recesses, adjournments, anthrax attacks, the Senate being closed down after September 11. We kept turning out these judges.

Many were controversial. Most were conservative. We kept turning them out. Maybe to obscure the fact that we were moving President Bush's judges much faster than the Republicans moved President Clinton's, when we actually dared vote against one, the attacks that came. We were misquoted for our reasons. We had a judge who was defeated basically on questions of competence and willingness to follow the law. The Democrats who voted against him had all kinds of motives ascribed to them. We were told we called him a racist, even though I heard Democratic Senator after Democratic Senator say they did not consider him that. We had the religion of the majority of Members, Democratic Members in the Senate, attacked--including high officials of the Republican Party attacked the religious backgrounds of at least 8 members of the 10 members, Democrats in the Senate Judiciary Committee. But nobody, nobody wanted to discuss the fact that this particular judge was voted down because he was not qualified to be a circuit court of appeals judge.

These are the kinds of things. It is almost like no good deed will go unpunished. The Democrats moved through judges much faster for President Bush than Republicans did for President Clinton, and we are the ones being called obstructionists.

Mr. Estrada's short legal career has been successful. By all accounts he is a good appellate lawyer and legal advocate who has had a series of prestigious positions and is professionally and financially successful. As the grandson of immigrants, as a son, a father and grandfather, I know that no matter the

country of origin or economic background, a family takes pride in the success of its children. Mr. Estrada's family has much to be proud of in his accomplishments, regardless of the outcome of this nomination.

Mr. Estrada, who is now 41 years old, has a successful legal career at a prominent corporate law firm, which was the firm of President Reagan's first Attorney General William French Smith and that of President Bush's current Solicitor General Ted Olson. I am told that Mr. Olson, along with Kenneth Starr have been among Mr. Estrada's conservative mentors. At his relatively young age, Mr. Estrada has become a partner in the law firm of Gibson, Dunn & Crutcher having previously worked with the Wall Street law firm of Wachtell, Lipton, Rosen & Katz. While in private practice his clients included major investment backs and health care providers. Mr. Estrada's financial statement, which Senator Hatch inserted into the Congressional Record, says that he earned more than $500,000 a year two years ago and makes him look like a millionaire. At his hearing, Mr. Estrada testified: ``I have never known what it is to be poor, and I am very thankful to my parents for that. And I have never known what it is to be incredibly rich either, or even very rich, or rich.'' I will let his financial statement speak for itself on that point.

Mr. Estrada appears to be a highly successful and well-compensated lawyer in a first-rate law firm. As I say, his family and friends surely take pride in this success, and rightly so.

In the almost six years he has been with Gibson, Dunn & Crutcher, with its thriving appellate court practice and the successful Supreme Court practice developed by his senior partner Ted Olson, who was confirmed to be Solicitor General in June 2001, Mr. Estrada has apparently had only one argument before the Supreme Court, however. That was in connection with a habeas petition on which he worked pro bono when he first came to the firm. This is also one of the only pro bono cases he has taken in his entire legal career.

I would also note his role developing legal arguments and writing briefs on behalf of Governor Bush following the 2000 election that resulted in a 5 to 4 majority of the United States Supreme Court's intervention to halt the counting of ballots in Florida and resulting in the selection of President George W. Bush. This information failed to make it into Mr. Estrada's Judiciary Committee questionnaire and list of top 10 legal matters. We know about his involvement in that case because the Puerto Rican Legal Defense and Education asked him about it and included reference to it in their extensive report on this nomination.

Much has been said of Mr. Estrada's time working in the Office of the Solicitor General at the Department of Justice. I understand he was hired for that role by Kenneth Starr when he was the Solicitor General for the first President Bush in 1992. It was in that government post which Mr. Estrada continued during the first term of the Clinton administration in which he had 14 opportunities to argue before the Supreme Court. Of course, one of the principal functions of the Solicitor General's Office is to argue for the Government in behalf of the Supreme Court, and in fact argues more than anybody else. So it is no surprise when attorneys do so.

But there comes the rub. Mr. Estrada's supporters make much of his four and a half years in the Solicitor General's Office and say this qualifies him to an appointment to the DC Circuit. The work that he did, according to the supporters in the Solicitor General's Office, ipso facto qualifies him for appointment to the District of Columbia Circuit. But when we ask, Can we see the work he did? Oh, no, no. Take our word for it.

Interestingly enough, when I asked Mr. Estrada during the first meeting we had whether he had any objection to turning over the material and the work he did, he said no. He would be glad to. He is proud of it. It reflected his views. He would be glad to turn it over. When he was asked during the hearings whether he would be willing to turn it over, he personally would be willing to do so. He was under oath and he said certainly. But the administration says no.

The Administration is seeking to have it both ways: Credit Mr. Estrada with the experience while forbidding the Senate from reviewing for itself what he did in that government job. Given the public comments of a former Deputy Solicitor General and Mr. Estrada's direct supervisor at the Office of Solicitor General, as well as the lack of a written record of Mr. Estrada's views and judicial philosophy and Mr. Estrada's failure at his hearing to satisfy Senators by responding to their questions, there is ample basis on which to request the production of government work papers from the time during which Mr. Estrada was in the Solicitor General's Office. There is also ample precedent for such papers being shared with the Senate in the past.

It makes you wonder why they won't show us Mr. Estrada's paperwork. The same paperwork that was made available during the Carter administration. It was made available during the Reagan administration. It has been made available actually every time the Senate Judiciary Committee has asked for it.

The Democratic leader pointed out the way to resolve the stalemate in his February 11, 2003, letter. It is curious. We asked for materials of cases long since decided. We are not asking for material on a pending case. Certainly, if there is material on a pending case, I would be willing to listen to an argument to hold that back. But how can we argue to hold back on material on a case long decided?

When similar requests were made of material written by William Rehnquist, it was forthcoming. When similar requests were made for material written by Robert Bork, it was forthcoming. When similar material was requested written by Benjamin Civiletti, who became Attorney General, it was forthcoming. When similar material was requested for the nomination of William Bradford Reynolds, it was forthcoming. When similar material was requested for the nomination of Steven Trott, it was forthcoming. But then when it is requested of Mr. Estrada--and this is the only time I can remember such a request being turned down--it is turned down.

Again, you have to ask why. What is in there that they don't want us to see?

Take the public comments of a former Deputy Solicitor General, Mr. Estrada's direct supervisor at the Office of Solicitor General, as well as the lack of a written record of Mr. Estrada's views and judicial philosophy and Mr. Estrada's failure during hearings to satisfy Senators by responding to their questions, then there is ample bases on which to request products of Government workpapers during the time in which Mr. Estrada was in the Solicitor General's Office--papers put together and being paid for by the taxpayers in a job which the administration now says shows why he is entitled to be in this lifetime position. There is ample precedent for such papers being shared with the Senate in the past.

I cannot think of a time when the papers were requested when the administration turned them down.

Professor Bender, Mr. Estrada's supervisor at the Office of the Solicitor General, indicated that when he was supervising Mr. Estrada he did not view Mr. Estrada as reading the law fairly. He viewed Mr. Estrada as one whose personal views and desires colored his readings and presentations of the law, and as someone who might well be an ideologue to be appointed to the bench.

I would think if Senators are going to be fair about this nomination, whether they are Republicans or Democrats, they would want to know the answer to that before they put somebody in a lifetime position.

I would prefer not to until I finish these comments.

Thank you.

But the reason we say this, if this work is what qualifies him, then we ought to know what he did in this work.

Now, Professor Bender, Mr. Estrada's supervisor, is reported to have stated that Mr. Estrada was so ``ideologically driven that he couldn't be trusted to state the law in a fair, neutral way.'' He stated that he ``could not rely on [Mr. Estrada's] written work to be a neutral statement of the law.'' He also

indicated that he viewed Mr. Estrada as ``smart and charming, but he is a right-wing ideologue'' and one who ``lacks judgment.''

Now, this is somebody who has actually seen his work. Unlike those of us who are not allowed to see it, he has seen it.

Veteran Supreme Court lawyer Carter G. Phillips has also noted that Mr. Estrada, while ``extremely self-confident'' is a ``more strident personality'' than the other current nominee for this court, John Roberts.

In fact, when Professor Bender ventured these honest opinions, he suffered partisan attacks by Republicans. Similar to what happened to those of us on the Democratic side on the Judiciary Committee, who had our religion attacked by Republican officeholders because we dared to vote against one of President Bush's nominees, Professor Bender was attacked because he dared to question one of President Bush's nominees.

He was maligned for serving as the general counsel to a commission appointed by President Nixon. He was maligned for legal positions taken by the Clinton administration. Republicans have chosen character assassination and demonization of Professor Bender. Their approach is to deny access to Government records and to seek to destroy anyone who would raise a concern about Mr. Estrada's ideology affecting his legal work.

To his credit, Professor Bender was not intimidated by these personal attacks. He wrote to Chairman Hatch reaffirming his views just days ago. He also did this because he found that he was being misquoted time and time again on the floor of the Senate, and he wanted us to know exactly what his views are.

Contrast this to what the Senate Democrats are trying to do. We would like to get to the merits of the matter. The administration has responded by stonewalling our request. They have attacked us for our attempts to reach a fair resolution of this matter.

I would like to have the papers. I would like to have a hearing where we could ask questions from the papers, where we actually know what is in these things that they say substantiate the reason for Mr. Estrada's nomination.

The administration wants to have it both ways. They say, if you saw these brilliant writings, then you would want him to be a judge. So we say: Fine, let's see the writings. They say: Oh, no, you can't see them. Take our word.

You can't really have it both ways. If this is what shows he is qualified to be a judge, then let us see what is in it and then let us make up our own minds. Then Senators can vote for or against, but at least they will know what it is based on.

One major person in his department says he is not qualified. We are not relying on that. We would like to see the papers and make up our own mind.

One of the significant questions raised by this nomination is whether Mr. Estrada will be a fair judge without a political agenda. To ascertain that, let's review his work when he was serving in a position of trust for the United States, paid for by the American taxpayers.

I believe it is fair to explore whether Mr. Estrada stated the law in a fair and neutral way while asked to do so in the Solicitor General's Office. Remember, the Solicitor General is not just an advocate before the U.S. Supreme Court. The Solicitor General is that unique person, in arguing before the U.S. Supreme Court, who is expected--by the Court and by the American people--to state the law objectively.

I have heard the Solicitor General before the U.S. Supreme Court--in years past, and even from my days in law school--saying things to the effect: Here is the law that would uphold the position of the Government, but the Court should be aware that there is another body of law on the other side. They are supposed to state it fairly and impartially so the Court can rely on them.

Having said that, we have somebody in the Solicitor General's Office preparing this material so that the Supreme Court can be given an objective, fair, and evenhanded view of the law. Isn't it fair game to ask whether that person fulfilled their duty in the Solicitor General's Office? Isn't it fair to ask, when they prepared such material, whether they did it in a fair, evenhanded fashion? Or did they do it in an ideological manner? Did they do it to carry out an agenda?

I think it is a particularly significant question. We are faced with a nominee for a lifetime appointment to a Federal court, and to a Federal court as important as the D.C. Circuit. Usually when somebody is being nominated to such an important court, they have been a judge, they have been a district court judge, they have had a position where you have been able to see how they interpret the law and how they use it, and whether they did so fairly.

That is not the case here. Here we have one place--one place--where by law, custom, and practice he is required to state the law in an evenhanded fashion, not ideologically driven but impartially driven. And the one place where we can ask whether he did that or not, the administration says: Trust us. He did, but we will not show you.

I remember that wonderful saying that President Reagan made up, to the great surprise of the Russians, because he said it was a Russian saying it; but, still, it is a wonderful saying, where he said: Trust but verify. Well, I am tied at the hip with former President Reagan on this one. I will trust, but I would like to verify. I would like to verify.

I think Senators should have the opportunity to review for themselves the documents Mr. Estrada wrote and make their own independent judgments about Mr. Estrada's writings and his ability to apply the law without regard to strongly held personal beliefs.

Objectivity and openmindedness are crucial to appellate deliberations and decisionmaking. This is an area where we could answer that question. We can answer the question. In the Office of the Solicitor General there is a requirement to be objective, not ideological, a requirement to be straightforward and not political. But we are not allowed to see whether he fulfilled that requirement. Don't you think we should at least ask if it was there?

If he had been a district judge before, and had written opinions, which would show whether he was objective and evenhanded, wouldn't we say, let's read them? I cannot imagine any Republican or Democrat saying we would not read them before we made up our mind.

Well, he was not a district judge. But he was in a position where he was required to be nonideological, where he was required to be honest, where he was required to be straightforward, where he was required to be nonpolitical, and we are not allowed to see that record.

Let's see the record. Let us ask questions about it, especially in this case, where one of the people who has looked at the record--one of his supervisors--questions whether he was objective. Isn't that something we should determine? In a job where he was required by law, by practice, and by custom to be objective and nonideological, and intellectually honest, if you have somebody who says he was not, so shouldn't we know that? Because if that is the case--when he is there just for a term--how much worse will it be if it is a lifetime position?

Let's have those papers. Let's ask the questions. Then let Senators make up their minds. I am never going to vote for a judge if I cannot have the answers. I remember when President Clinton had nominees held up here for 2, 3, 4 years. My friends on the Republican side asked question after question. Some were legitimate, some were not. I remember one being asked how she voted on a secret ballot in a State election. I think we can all agree that is a question nobody should be asked--how they vote in an election in a State. But we waited year after year, and they said they must have these answers. Shouldn't we?

I heard that Mr. Estrada was editor of the Harvard Law Review. Some have gone so far as to make it seem as if he was editor in chief or president of the review. That would be pretty impressive. Actually, he was one of 70 student editors working at the Harvard Law Review in 1986. That should be impressive enough. I think most law students would say that is pretty darn impressive. But you don't have to embellish it, as some of his supporters have, and make it far more than what it was. I am impressed that he was 1 of 70. You don't have to embellish it to say he was the No. 1 editor in chief.

We have a lot of people who fall into that category. Claire Sylvia, who worked for a time at our Senate legal counsel's office, was one of those editors. I never remember her claiming to be the editor in chief.

Yes.

Yes, 70.

That is what I am saying. We have had a lot of people who worked for the Senate and for our committees and worked for various Senator's offices who have been one of those 70. It is a proud achievement. I keep worrying when we are seeing somebody gilding the lily on this person, when we see his background and his history change constantly to make it better and better. Well, he has things to be proud of, but you wonder why his supporters have to constantly change it and embellish it.

Jeff Toobin, who has become a journalist, author, and legal commentator, was a student editor there that year. Actually, the supervising editor, who had a far more significant position, was none other than Elena Kagan. I mention this because my friends on the other side said that Mr. Estrada's being one of the 70 editors is reason to be on the court. Elena Kagan was a supervising editor. Now, that is really significant. Professor Kagan is a Harvard law professor. Professor Kagan served as Mr. Estrada's supervising editor, got the highest qualification by the ABA; and based on those qualifications, President Clinton nominated her to the DC Circuit.

I mention this because so much has been made by those on the other side, who say even if you are one of the 70 editors, and got a high qualification from the ABA, that should be enough. Elena Kagan was a law professor and was a supervising editor. She was nominated by President Clinton, but guess what happened. The Republicans never allowed her to even have a hearing, to say nothing of a vote. She was humiliated, not even allowed to have a hearing, to say nothing about a vote.

I worry when I hear Mr. Estrada's supporters talk about his family history. I was impressed when talking to him about his family. But I remember the first stories, and you have heard them repeated here. You almost thought he was a barefoot immigrant coming to America, unable to speak English, and so on and so forth. Actually, he grew up in a relatively wealthy and privileged household. His parents sent him to private school in Honduras, where the annual cost was almost the same as the annual per capita income for most Hondurans during that period.

According to news accounts, his late father was a prominent and politically conservative lawyer who helped found the country's first private university and was also a bank vice president.

I recall that the Honduran Ambassador took time out from his busy schedule last fall to attend a Judiciary Committee hearing, which made me think about the rumors that had circulated that Mr. Estrada's family included relatives who had been on the country's diplomatic corps. I understand his mother was a successful accountant in her own right. She should be proud of that. She is the daughter of a teacher-diplomat. Mr. Estrada completed 12 years of primary and secondary education at a private academy and at a university where he studied English. These are all commendable things--but a lot different than the image we are given.

Again I ask, why not just tell the story as it is? Why not tell the story straightforward and show us the papers straightforward? Why do you have to constantly embellish things? That is why when I am told by the administration: Just trust us, we have looked at the papers and he was objective and honest and nonideological, take our word for it--I haven't been able to take their word for much in this case so far. Why should I take it for something that they don't want me to see?

We do know some things about him. According to news accounts, after one of his mentors, Kenneth Starr, left the Office of the Solicitor General, he said Estrada was ``left working for a Justice Department whose views he didn't always agree with.''

While at the Solicitor General's Office, Estrada did argue 14 cases before the Supreme Court, primarily criminal matters, but sometimes in the area of banking law. It is worth noting that Seth Waxman was not listed as Solicitor General on the briefs of any of those cases and, apparently, did not directly supervise his work.

When he joined Gibson, Dunn & Crutcher and worked with Ted Olsen, Mr. Estrada gave interviews in which he defended Ken Starr's investigation of President Clinton. He has a right to do that. Some of us would question the $75 million to $100 million that was wasted on the investigations, but Mr. Estrada felt they were well worthwhile. He helped on then-Governor George Bush's litigation over the election results in Florida. He went on to the Justice Department transition team.

I outline this personal history because some partisans have taken liberties with Mr. Estrada's personal and professional background in order to try to make his case more compelling. There is no doubt that Mr. Estrada is a rising star in conservative legal circles. He is a Federalist Society member and has been mentored by Kenneth Starr and Ted Olson.

Certainly, he has a right to be involved with the Federalist Society. There is nothing wrong with that. In fact, he should probably use the membership.

One judicial nominee at his hearing was honest and said he hadn't really heard of the Federalist Society. But he was told if he wanted to be a judge with this administration, he better go join it. He did and he is a judge. It worked for him. In this case, it has served him well, as it has a number of other executive branch nominees.

This organization is sometimes mischaracterized as a mere debating society, and, as I said, one nominee was very honest while under oath and said: Yes, he was told to join it.

They say about themselves:

The Federalist Society for Law and Public Policy Studies is

a group of conservatives and libertarians interested in the

current state of the legal order.

They state one of their goals is the ``reordering of priorities within the legal system'' and its objective ``requires restoring the recognition of the importance of lawyers, judges, and law professors.''

I am not sure how Mr. Estrada plans to reorder priorities and values if he is confirmed as a judge, but we know he has strongly held views he will not share with us. Again, we go back to the one area where he is required to be objective, not ideological, and nonpolitical, and that it in the Office of the Solicitor General. But those writings we are not allowed to see. Those writings would show if he is able to be nonideological, nonpolitical, and straightforward because he is required to in the Solicitor General's Office, but they will not show us what he wrote.

What worries me is that a man who has had so many embellishments made on his record by his supporters, when his supporters question everything from the religion to the biases of those who dare question him, it makes one wonder why do they hide this.

In his hearing testimony, Mr. Estrada did admit ``having made some pretty ruthless assessments and the legal views of some [government] agencies which I'm glad to say were sometimes vindicated in the courts later. . . .

He did not tell us what those assessments were. He did not say which cases vindicated his views. We are left to wonder whether given the awesome power of a lifetime appointment as a Federal judge that he would act on his own ``ruthless assessments'' or on the facts, the litigants, and the law before him.

His friends and supporters acknowledge that Mr. Estrada has strong conservative views. In fact, they acknowledge far more than Mr. Estrada himself. His classmate Arturo Corrales, a former Presidential candidate in Honduras, said Mr. Estrada's socially conservative views were already evidenced when he was a teenager, including his opposition to abortion. Other colleagues acknowledge his strong views as well. His former law school classmate, Ron Klain, supports him even though Mr. Estrada is ``politically conservative'' and ``has passionate views

about legal policy.'' His former colleague Robert Litt supports Mr. Estrada's confirmation, even though he disagrees with his ``legal philosophy.''

They do so, however, with the luxury of knowing what Mr. Estrada's views of the Constitution are. That is a luxury that 100 Members of this body do not have. Mr. Estrada refused to share those views with those entrusted by the Constitution with determining whether he should be accorded the power of a lifetime Federal judicial appointment. The Senate wants to know before making that decision whether he can be trusted to apply the law fairly and impartially without regard to his deeply held ideas and views, whatever they may be. It is hard to imagine that he would freely cast his views aside and be objective in a court when he will not even tell us what they are.

Members of the Congressional Hispanic Caucus who met with him noted that Mr. Estrada ``did not demonstrate a sense of inherent `unfairness' or `justice' in cases that have had a great impact on the Hispanic community.''

They noted that, in their view, the ``appointment of a Latino to reflect diversity is rendered meaningless unless the nominee can demonstrate an understanding of the historical role courts have played in the lives of minorities in extending equal protections and rights.''

Similar concerns have been raised by the Latino Vermonters and many others. For example, the Puerto Rican Legal Defense and Education Fund--this is a national civil rights organization concerned with advancing the civil and human rights of the Latino community, also submitted a strong statement of opposition, and they reviewed all his available writings.

They conducted dozens of interviews with individuals who have studied and worked with Miguel Estrada, and well as those who lived in the same communities with him. They also surveyed news reports and public materials concerning Mr. Estrada.

They also interviewed Mr. Estrada. They noted that ``a number of his colleagues have said unequivocally that Mr. Estrada has expressed extreme views that they believe to be outside the mainstream of legal and political thought.''

They go further to say that he has ``made strong statements that have been interpreted as hostile to defendants' rights, affirmative action, and women's rights.''

They also expressed concern about his temperament. They interviewed people who described him as ``arrogant and elitist'' and that he ``harangues his colleagues'' and ``doesn't listen to other people.'' In their interview, Mr. Estrada was not even tempered and was ``contentious, confrontational, aggressive and even offensive in his verbal exchanges'' with them.

After a thorough review, the Puerto Rican Legal Defense and Education Fund concluded that Mr. Estrada was not sufficiently qualified for a lifetime seat on the Nation's second highest court, and then the PRLDEF said ``that his reportedly extreme views should be disqualifying; that he has not had a demonstrated interest in or involvement with the organized Hispanic community or Hispanic activities of any; and that he lacks the maturity and judicial temperament necessary to be a circuit judge.''

Similarly, the Mexican American Legal Defense and Education Fund, MALDEF, and California La Raza Lawyers, CLRL, have expressed ``serious concerns about whether Mr. Estrada would fairly review issues that came before him. MALDEF and CLRL said:

[I]t is unclear whether he would be fair to Latino

plaintiffs as well as others who would appear before him with

claims under the first amendment, the fourth amendment, the

fifth amendment, and due process clauses in the U.S.

Constitution. Further, we found evidence that suggests he may

not serve as a fair and impartial jurist on allegations

brought before him in the areas of racial profiling,

immigration, and abusive or improper police practices where

those practices are adopted under a ``broken window theory''

of law enforcement. We have concerns about whether he would

fairly review standing issues for organizations representing

minority interests, affirmative action programs, or claims by

low-income consumers. We are also unsure, after a careful

review of his record, whether he would fairly protect labor

rights of immigrant workers or the rights of minority voters

under the Voting Rights Act.

These are leading Latino organizations that say that about him.

We have heard from numerous chamber of commerce-related organizations and Republican organizations expressing support, the same Republican organizations able to send five people to Vermont to talk about him. They were really silent when other Latinos were nominated to the court by President Clinton. There are Latino judges out there; 80 percent of the Latinos on the courts of appeals now were appointed by President Clinton. There actually would have been several more, but they were blocked by the Republicans. They were not allowed to have hearings, they were not allowed to have votes, and none of these Republican organizations that are suddenly concerned about the plight of Latinos came forward when one after another was blocked by the Republicans during the Clinton administration.

The spokesperson for the newly minted Coalition for a Fair Judiciary--I love these terms--explains that organization is made up of 70 or more conservative organizations, arose from a similar group called Americans for Ashcroft and is supportive of President Bush's judicial nominees because of their ideology.

We are not allowed to question ideology, but the supporters say because of their ideology they should be confirmed.

Diversity is one of the great strengths of our Nation, and that diversity and background should be reflected in our Federal courts. I only wish some of these same conservative organizations suddenly available today were interested in diversity when President Clinton's minority women nominees were being delayed and derailed by Senate Republicans between 1996 and 2001. They were nowhere to be found or worse yet, arguing for delay, obstruction and defeat of those qualified Hispanic, African-American and female nominees.

Race or ethnicity and gender are, of course, no substitutes for the wisdom, experience, fairness, and impartiality that qualify someone to be a federal judge entrusted with a lifetime appointment. White men should get no presumption of competence or entitlement. Hispanic and African American men and women should not be presumed to be incompetent. All nominees should be treated fairly.

When one gets down to the bottom line, the burden of proof of suitability for lifetime appointment rests on the nominee and the Administration. We must carefully examine the records of all nominees to high offices, but we know the benefits of diversity and how it contributes to achieving and improving justice in America. As Antonia Hernandez wrote in the Wall Street Journal: ``The fact that a nominee is Latino should not be a shield from full inquiry, particularly when a nominee's record is sparse, as in Mr. Estrada's case. It is vital to know more about a nominee's philosophies for interpreting and applying the Constitution and the laws.'' Members of the Congressional Hispanic Caucus has said much the same thing.

Our freedoms are the fruit of too much sacrifice to fail to assure ourselves that the judges we vote to confirm have a commitment to upholding the Constitution, following precedent, and listening to claims without fear or favor. When a President is nominating individuals to tip the balance, stack the deck, or to pack the courts with ideologues, the Senate would be abdicating its responsibilities to ignore the very criteria that led to selection of such a nominee.

So, when some organizations come forward and say they are supporting a nominee because of their ideology, they cannot at the same time say we should not ask about that ideology. When the supporters come forward and say his brilliant writings in the Solicitor General's Office qualify him to be a judge, they cannot then in the next breath say, but you cannot see what those brilliant writings were, you have to take our word for it.

Under our Founders' design, the political branches share the power of appointment: the President has the power to nominate or propose judges, but the Senate has a corresponding power to confirm or reject those nominations. That is one of the ingenious checks and balances of our federal system. If a nominee's record, or lack of a record, raises doubts, these are matters for

thorough scrutiny by the Senate, which is entrusted to review all of the information and materials relevant to a nominee's record relating to fairness, impartiality, bias, experience, or other matters.

Unlike elected officials, these are lifetime jobs, so the Senate Judiciary Committee must undertake an inquiry to be assured that a nominee should be confirmed to high office. When there is no judicial experience to look to, it is all the more critical that the Committee inquire fully into a nominee's experience, record, views and understanding of our fundamental rights.

Now, Chairman Hatch is saying precisely the same thing I am saying. The difference is, he said this speaking to the Federalist Society. He said this when President Clinton was nominating the judges, not when President Bush was nominating them.

In 1997, he told the Utah Chapter of the Federalist Society that ``the Senate can and should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists. Determining who will become activists is not easy since many of President Clinton's nominees tend to have limited paper trails . . . . Determining which of President Clinton's nominees will become activists is complicated and it will require the Senate to be more diligent and extensive in its questioning of nominees' jurisprudential views.'' In the case of Mr. Estrada, however, the nominee has refused to provide us many answers at all about the types of jurisprudential views referenced by Chairman Hatch.

Sauce for the goose, Mr. Chairman, sauce for the gander. You were right then. I take the same position today. I am right.

The difference is, President Clinton's nominees turned over those papers.

Most Americans want nominees who will be fair and impartial judges. An independent judiciary is the people's bulwark against a loss of their freedoms and rights. I think the rights at stake are simply too important to take a chance on a lifetime appointment to this high court, to make a decision we cannot reverse, if Mr. Estrada were to turn out to be the activist and ideologues that many of those who have heard him speak candidly. What little record we have calls into question whether he would be neutral referee or an advocate and activist from the bench.

In closing, he had a job in which he was required by law, by custom, by practice, to be impartial and nonideological. He wrote extensively in that taxpayer-funded job where he was required to be nonideological, impartial, straightforward, but he will not show what he wrote.

We are told by the administration, trust us. We have looked at it. He is impartial. We say, then let us see it. Ah, you say, well, then you are a racist, or you have a religious bias, or whatever might be the reason of the day. We have heard so many misstatements from the other side about Mr. Estrada, let's go to the one thing that can be looked at objectively: His writings.

It can be done. A distinguished member of the other party has suggested that it be done. The White House ought to listen to him and they should stop saying opposition to the nomination of Miguel Estrada is anti-Hispanic. We have risen in this Chamber day after day to demonstrate why this is false, referring to, among other things, the numbers of well-known and well-respected Latino organizations who also oppose this nomination.

We have introduced into the record letters from organizations such as the Mexican American Legal Defense Fund, opposed to Mr. Estrada; the Southwest Voter Registration and Education Project, opposed to Mr. Estrada; the Puerto Rican Legal Defense and Education Fund, opposed to Mr. Estrada; a letter from 52 Latino labor leaders, opposed to Mr. Estrada; the Puerto Rican Bar Association of Illinois, opposed to Mr. Estrada. Each one of these explain their thoughtful and principled opposition to Mr. Estrada's nomination.

Today we received another letter from another Latino organization expressing its opposition to the Estrada nomination. The Hispanic Bar Association of Pennsylvania has written that it, too, opposes Mr. Estrada's confirmation to the U.S. Court of Appeals for the DC Circuit. The Hispanic Bar Association of Pennsylvania did not come to this decision lightly.

As the letter says, they created a special committee on judicial nominations. They developed a process to review candidates for the Federal judiciary. They examined Mr. Estrada's record. They considered a variety of factors in their evaluation. They even asked Mr. Estrada to come meet with them. In the end, they conclude they must oppose him. I respect what must have been a difficult decision, but I think letters from the Hispanic Bar Association of Pennsylvania and all these other Latino organizations in opposition to him show that the opposition is not just because he is Hispanic.

I ask unanimous consent that the letter be made a part of the Record.

I see my good friend, the distinguished chairman, on the floor. I hope he has had a chance to go out and get a bite to eat, as we have been doing. He certainly deserves it.

(The remarks of Mr. Leahy pertaining to the introduction of S. 459 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

I thank the Chair. I yield the floor.

Mr. President, today the Commission on Opportunity in Athletics sent Secretary Rod Paige their recommendations to change the landmark gender equity law--Title IX.

Two members of the Commission--Julie Foudy and Donna de Varona-- decided not to sign the report and instead submitted a minority report because they found the final report slanted, incomplete, and failing to acknowledge that discrimination against women in education still exists. I am very disappointed the Commission did not write a more balanced report, which all members would have felt comfortable signing.

Since its passage more than 30 years ago as part of the Education Amendments of 1972, Title IX has played a monumental role in the advancement of equality for women throughout America. This landmark legislation has opened the doors to colleges, universities and sports team locker rooms for our sisters, daughters and friends. Women's participation in sports has dramatically increased so that women now make up about 40 percent of all college athletics, compared with 15 percent in 1972. Studies have shown that women who participate in athletics learn important values such as, teamwork, leadership, and discipline--values that stay with them throughout their lives.

On January 29, Senators Daschle, Snowe, Kennedy, Specter, Murray

and I wrote to Education Secretary Rod Paige urging him to defend and strengthen the enforcement of current Title IX policies and regulations. Today, I joined those same Senators in a letter urging President Bush to reaffirm the current policies under Title IX and to reject the changes to those policies proposed by the Commission.

Over the past 30 years, Title IX has been a good and fair law and it should not be weakened in any way. I urge President Bush and Education Secretary Rod Paige to give as much consideration to the report filed by Julie Foudy and Donna de Varona as they do to the majority report and to ultimately reject any efforts to weaken Title IX and its goal to address widespread sex discrimination in athletics and all other aspects of education.

Mr. President, I rise today in support of Democratic Leader Daschle's request to bring before the Senate the Economic Recovery Act of 2003, S. 414, which includes legislation I introduced last month: the First Responders Partnership Grant Act of 2003. I regret that Republicans objected to proceeding to these important matters when Senator Daschle requested we move to it yesterday.

I thank the Democratic leader for authoring this important economic stimulus package. In seeking to improve homeland security, I am proud that he saw fit to include the First Responders Partnership Grant Act-- on which he, Democratic Whip Reid and Senator Breaux join me as cosponsors. This legislation will supply our Nation's first responders with the support they so desperately need to protect homeland security and prevent and respond to acts of terrorism.

I want to begin by thanking each of our Nation's brave firefighters, emergency rescurers, law enforcement officers, and other first responder personnel for the jobs they do for the American public day in and day out. Our public safety officers are often the first to respond to any crime or emergency situation. On September 11, the Nation saw that the first on the scene at the World Trade Center were the heroic firefighters, police officers and emergency personnel of New York City. These real-life heroes, many of whom gave the ultimate sacrifice, remind us of how important it is to support our State and local public safety partners.

But while we ask our Nation's first responders to defend us as never before on the front lines against the dark menace of domestic terrorism, we have failed to supply them with the Federal support they need and deserve to protect us, as we expect and need them to protect us.

Since February 7, 2003, the Federal Homeland Security Advisory System has kept State and local first responders on Orange Alert, a ``high'' condition indicating a high probability of a terrorist attack and when additional precautions by first responders are necessary at public events.

Since then, counterterrorism officials have warned that the threat of terrorist attacks on U.S. soil is at a higher level than in previous months due to the possibility of impending military action against Iraq. This is the second time since September 11, 2001, that the national warning level has been at Orange Alert--from September 10 to September 24 last year, Attorney General Ashcroft declared our country at Orange Threat level.

From March 12, 2002, until this month, we were at Yellow Alert, an ``elevated'' threat level declared when

there is a significant risk of terrorist attacks, requiring increased surveillance of critical locations.

Counties, cities and towns in my home State of Vermont and across the U.S. find themselves overwhelmed by increasing homeland security costs required by the Federal Government. Indeed, the National Governors Association estimates that States incurred around $7 billion in security costs over the past year alone.

As a result, the national threat alerts and other Federal homeland security requirements have become unfunded Federal mandates on our State and local governments. Rutland County Sheriff R.J. Elrick, president of the Vermont Sheriffs' Association, recently wrote to me, ``We are in dire need of financial support to keep our personnel trained and equipped to meet the challenges here as home as we continue our vigilant commitment to fight terrorism.''

When terrorists strike, first responders are and will always be the first people we turn to for help. We place our lives and the lives of our families and friends in the hands of these officers, trusting that when called upon they will protect and save us.

Just how, without supplying them with the necessary resources, do we expect our Nation's first responders to realistically carry out their duties?

Our State and local law enforcement officers, firefighters and emergency personnel are full partners in preventing, investigating and responding to terrorist acts. They need and deserve the full collaboration of the Federal Government to meet these new national responsibilities.

Washington is buzzing about the literally hundreds of billions of additional dollars the President plans to ask Congress to provide for our military services to fight the war on terrorism abroad. The same cannot be said for helping security here at home, which is shamefully overlooked.

For a year and a half I have been working hard to remedy that, with allies like our distinguished Democratic leader and assistant Democratic leader, and New York Senators Schumer and Clinton. As former chair and now ranking member of the Judiciary Committee, I have made it a high priority to evaluate and meet the needs of our first responders.

For these reasons, I commend the Democratic leader for including in the homeland security section of his economic stimulus package the First Responders Partnership Grant Act, which will give our Nation's law enforcement officers, firefighters and emergency personnel the resources they need to do their jobs. This legislation will establish a grant program at the Department of Homeland Security to provide $5 billion nationwide for current fiscal year to support State and local public safety officers in their efforts to protect homeland security and prevent and respond to acts to terrorism.

Similar to the highly successful Department of Justice Community Oriented Policing Services (COPS) and the Bulletproof Vest Partnership Grant Programs, the First Responder Grants will be made directly to State and local government units for overtime, equipment, training and facility expenses to support our law enforcement officers, firefighters and emergency personnel.

The First Responder Grants may be used to pay up to 90 percent of the cost of the overtime, equipment, training or facility. In cases of fiscal hardship, the Department of Homeland Security may waive the local match requirement of 10 percent to provide Federal funds for communities that cannot afford the local match.

In a world shaped by the violent events of September 11, day after day we call upon our public safety officers to remain vigilant. We not only ask them to put their lives at risk in the line of duty, but also, if need be, given their lives to protect us.

If we take time to listen to our Nation's State and local public safety partners, they will tell us that they welcome the challenge to join in our national mission to protect our homeland security. But we cannot ask our firefighters, emergency personnel, and law enforcement officers to assume these new national responsibilities without also providing new Federal support.

The First Responders Partnership Grant Act will provide the necessary Federal support for our State and public safety officers to serve as full partners in the fight to protect our homeland security. We need our first responders for the security and the life-saving help they bring to our communities. All they ask is for the tools they need to do their jobs for us. And for the sake of our own security, that is not too much to ask.

I commend Senator Daschle for his leadership, and hope that the Senate will soon consider this desperately-needed economic stimulus package.

Mr. President, today I am proud to introduce with Senator Snowe a bipartisan bill that will repeal a rider in 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. Thirty four Senators, and counting, from both parties are joining me to repeal this special interest provision and restore credibility to the USDA organic standards.

I understand 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. He wants to get a market premium for his products, without actually being an organic product.

This provision will allow 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?

This provision 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. I have already heard from some 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.

My legislation strikes this rider from the Omnibus Appropriations Act and I hope to move it through Congress quickly before it does gut the organic meat and dairy industry. 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 ``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. This proposal to weaken the organic standards would undermine public confidence in organic labeling, which is less than a year old.

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. Along the way, 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 cosponsor my bill 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.

Mr. President, I proudly rise today to introduce the Hometown Heroes Survivors Benefits Act of 2003. I thank Senators Graham of South Carolina, Collins, Jeffords, Sarbanes, Schumer, Durbin, Landrieu, Nelson of Florida, Clinton and Snowe for joining me as original cosponsors of this multi-partisan legislation that will improve the Department of Justice's Public Safety Officers' Benefits, PSOB, Program by allowing families of public safety officers who suffer fatal heart attacks or strokes to qualify for Federal survivor benefits.

I want to begin by thanking each of our Nation's brave firefighters, emergency medical rescuers and law enforcement officers for the jobs they do for the American public day in and day out. Our public safety officers are often the first to respond to any crime or emergency situation. On September 11, the Nation saw that the first on the scene at the World Trade Center were the heroic firefighters, police officers and emergency personnel of New York City. These real-life heroes, many of whom gave the ultimate sacrifice, remind us of how important it is to support our state and local public safety partners.

I commend Congressmen Etheridge, Weldon, Hoyer and Oxley for their leadership and fortitude during the last Congress on an identical bill in the House. I look forward to working with them again during the 108th Congress on this important legislation.

Last year, both the House and Senate versions of this legislation received the endorsement of the Fraternal Order of Police, National Association of Police Organizations, Congressional Fire Services Institute, International Association of Arson Investigators, International Association of Fire Chiefs, International Association of Fire Fighters, National Fire Protection Association, National Volunteer Fire Council, North American Fire Training Directors, International Fire Buff Associates, National Association of Emergency Medical Technicians, American Ambulance Association, the American Federation of State, County and Municipal Employees, along with over 50 additional national organizations. I thank all of these organizations for their unwavering support for this legislation.

Public safety officers are among our most brave and dedicated public servants. I applaud the efforts of all members of fire, law enforcement, and rescue organizations nationwide who are the first to respond to more than 1.6 million emergency calls annually whether those calls involve a crime, fire, medical emergency, spill of hazardous materials, natural disaster, act of terrorism, or transportation accident without reservation. They act with an unwavering commitment to the safety and protection of their fellow citizens, and are forever willing to selflessly sacrifice their own lives to provide safe and reliable emergency services to their communities. Sadly, this dedication to service can result in tragedy, as was evident by the bravery displayed on September 11, 2001, when scores of first responders raced to the World Trade Center and the Pentagon with no other goal but to save lives.

Every year, hundreds of public safety officers nationwide lose their lives and thousands more are injured while performing duties that subject them to great physical risks. And while we know that PSOB benefits can never be a substitute for the loss of a loved one, the families of all our fallen heroes deserve to collect these funds.

The PSOB Program was established in 1976 to authorize a one-time financial payment to the eligible survivors of Federal, State, and local public safety officers for all line-of-duty deaths.

Two years ago, Congress improved the PSOB Program by streamlining the process for families of public safety officers killed or injured in connection with prevention, investigation, rescue or recovery efforts related to a terrorist attack. We also retroactively increased the total benefits available by $100,000 as part of the USA PATRIOT Act.

The PSOB Program currently provides approximately $262,000 in benefits to the families of law enforcement officers, firemen, emergency response squad members, and ambulance crew members who are killed in the line of duty.

Unfortunately, the issue of covering heart attack and stroke victims in the PSOB Program was not addressed at that time.

When establishing the PSOB Program, Congress placed only three limitations on the payment of benefits. No award could be paid, first, if the death was caused by the intentional misconduct of the officer or by such officer's intention to bring about his own death; second, if voluntary intoxication of the officer was the proximate cause of such officer's death; or, third, to any person otherwise entitled to a benefit if such person's action was a substantial contributing factor to the death of the officer.

In years following, however, the Justice Department began to interpret the Program's guidelines to exclude from benefits the survivors of public safety officer who die of a heart attack or stroke while acting in the line of duty, arguing that the attack must be accompanied by a traumatic injury, such as a wound or other condition of the body caused by external force, including injuries by bullets, smoke inhalation, explosives, sharp instruments, blunt objects or other physical blows, chemicals, electricity, climatic conditions, infectious diseases, radiation, and bacteria. Barred are those who suffer from occupational injuries, such as stress and strain.

Service-connected heart, lung, and hypertension conditions are silent killers of public safety officers nationwide. The numerous hidden health dangers dealt with by police officers, firefighters and emergency medical personnel are widely recognized, but officers face these dangers in order to carry out their sworn duty to serve and protect their fellow citizens.

Our multi-partisan bill would effectively erase any distinction between traumatic and occupational injuries. The Hometown Heroes bill will fix the loophole in the PSOB Program to ensure that the survivors of public safety officers who die of heart attacks or strokes in the line of duty or within 24 hours of a triggering effect while on duty regardless of whether a traumatic injury is present at the time of the heart attack or stroke are eligible to receive financial assistance.

I was serving my first term in the Senate when this program was established, and I firmly believe that this is what Congress meant for the survivors of our Nation's first responders to receive through the Public Safety Officers Benefits Program.

Heart attack and cardiac related deaths account for almost half of all firefighter fatalities between 45-50 deaths and an average of 13 police officer deaths each year. Yet the families of these fallen heroes are rarely eligible to receive PSOB benefits.

In January 1978, special Deputy Sheriff Bernard Demag of the Chittenden County Sheriff's Office in Vermont suffered a fatal heart attack within two hours of his chase and apprehension of an escaped juvenile whom he had been transporting. Mr. Demag's family spent nearly two decades fighting in court for workers' compensation death benefits all to no avail. Clearly, we should be treating surviving family members of officers who die in the line of duty with more decency and respect.

Public safety is dangerous, exhausting, and stressful work. A first responder's chances of suffering a heart attack or stroke greatly increase when he or she puts on heavy equipment and rushes into a burning building to fight a fire and save lives. The families of these brave public servants deserve to participate in the PSOB Program if their loved ones die of a heart attack or other cardiac related ailments while selflessly protecting us from harm.

First responders across the country now face a new series of challenges as they respond to millions of emergency calls this year. They do this with an unwavering commitment to the safety of their fellow citizens, and are forever willing to selflessly sacrifice their own lives to protect the lives and property of their fellow citizens. It is time for the Senate to show its support and appreciation for these extraordinarily brave and heroic public safety officers by passing the Hometown Heroes Survivors Benefit Act.

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

Mr. President, today I am proud to introduce with Senator Snowe a bipartisan bill that will repeal a rider in 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. Thirty four Senators, and counting, from both parties are joining me to repeal this special interest provision and restore credibility to the USDA organic standards.

I understand 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. He wants to get a market premium for his products, without actually being an organic product.

This provision will allow 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?

This provision 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. I have already heard from some 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.

My legislation strikes this rider from the Omnibus Appropriations Act and I hope to move it through Congress quickly before it does gut the organic meat and dairy industry. 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 ``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. This proposal to weaken the organic standards would undermine public confidence in organic labeling, which is less than a year old.

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. Along the way, 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 cosponsor my bill 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.

Mr. President, I proudly rise today to introduce the Hometown Heroes Survivors Benefits Act of 2003. I thank Senators Graham of South Carolina, Collins, Jeffords, Sarbanes, Schumer, Durbin, Landrieu, Nelson of Florida, Clinton and Snowe for joining me as original cosponsors of this multi-partisan legislation that will improve the Department of Justice's Public Safety Officers' Benefits, PSOB, Program by allowing families of public safety officers who suffer fatal heart attacks or strokes to qualify for Federal survivor benefits.

I want to begin by thanking each of our Nation's brave firefighters, emergency medical rescuers and law enforcement officers for the jobs they do for the American public day in and day out. Our public safety officers are often the first to respond to any crime or emergency situation. On September 11, the Nation saw that the first on the scene at the World Trade Center were the heroic firefighters, police officers and emergency personnel of New York City. These real-life heroes, many of whom gave the ultimate sacrifice, remind us of how important it is to support our state and local public safety partners.

I commend Congressmen Etheridge, Weldon, Hoyer and Oxley for their leadership and fortitude during the last Congress on an identical bill in the House. I look forward to working with them again during the 108th Congress on this important legislation.

Last year, both the House and Senate versions of this legislation received the endorsement of the Fraternal Order of Police, National Association of Police Organizations, Congressional Fire Services Institute, International Association of Arson Investigators, International Association of Fire Chiefs, International Association of Fire Fighters, National Fire Protection Association, National Volunteer Fire Council, North American Fire Training Directors, International Fire Buff Associates, National Association of Emergency Medical Technicians, American Ambulance Association, the American Federation of State, County and Municipal Employees, along with over 50 additional national organizations. I thank all of these organizations for their unwavering support for this legislation.

Public safety officers are among our most brave and dedicated public servants. I applaud the efforts of all members of fire, law enforcement, and rescue organizations nationwide who are the first to respond to more than 1.6 million emergency calls annually whether those calls involve a crime, fire, medical emergency, spill of hazardous materials, natural disaster, act of terrorism, or transportation accident without reservation. They act with an unwavering commitment to the safety and protection of their fellow citizens, and are forever willing to selflessly sacrifice their own lives to provide safe and reliable emergency services to their communities. Sadly, this dedication to service can result in tragedy, as was evident by the bravery displayed on September 11, 2001, when scores of first responders raced to the World Trade Center and the Pentagon with no other goal but to save lives.

Every year, hundreds of public safety officers nationwide lose their lives and thousands more are injured while performing duties that subject them to great physical risks. And while we know that PSOB benefits can never be a substitute for the loss of a loved one, the families of all our fallen heroes deserve to collect these funds.

The PSOB Program was established in 1976 to authorize a one-time financial payment to the eligible survivors of Federal, State, and local public safety officers for all line-of-duty deaths.

Two years ago, Congress improved the PSOB Program by streamlining the process for families of public safety officers killed or injured in connection with prevention, investigation, rescue or recovery efforts related to a terrorist attack. We also retroactively increased the total benefits available by $100,000 as part of the USA PATRIOT Act.

The PSOB Program currently provides approximately $262,000 in benefits to the families of law enforcement officers, firemen, emergency response squad members, and ambulance crew members who are killed in the line of duty.

Unfortunately, the issue of covering heart attack and stroke victims in the PSOB Program was not addressed at that time.

When establishing the PSOB Program, Congress placed only three limitations on the payment of benefits. No award could be paid, first, if the death was caused by the intentional misconduct of the officer or by such officer's intention to bring about his own death; second, if voluntary intoxication of the officer was the proximate cause of such officer's death; or, third, to any person otherwise entitled to a benefit if such person's action was a substantial contributing factor to the death of the officer.

In years following, however, the Justice Department began to interpret the Program's guidelines to exclude from benefits the survivors of public safety officer who die of a heart attack or stroke while acting in the line of duty, arguing that the attack must be accompanied by a traumatic injury, such as a wound or other condition of the body caused by external force, including injuries by bullets, smoke inhalation, explosives, sharp instruments, blunt objects or other physical blows, chemicals, electricity, climatic conditions, infectious diseases, radiation, and bacteria. Barred are those who suffer from occupational injuries, such as stress and strain.

Service-connected heart, lung, and hypertension conditions are silent killers of public safety officers nationwide. The numerous hidden health dangers dealt with by police officers, firefighters and emergency medical personnel are widely recognized, but officers face these dangers in order to carry out their sworn duty to serve and protect their fellow citizens.

Our multi-partisan bill would effectively erase any distinction between traumatic and occupational injuries. The Hometown Heroes bill will fix the loophole in the PSOB Program to ensure that the survivors of public safety officers who die of heart attacks or strokes in the line of duty or within 24 hours of a triggering effect while on duty regardless of whether a traumatic injury is present at the time of the heart attack or stroke are eligible to receive financial assistance.

I was serving my first term in the Senate when this program was established, and I firmly believe that this is what Congress meant for the survivors of our Nation's first responders to receive through the Public Safety Officers Benefits Program.

Heart attack and cardiac related deaths account for almost half of all firefighter fatalities between 45-50 deaths and an average of 13 police officer deaths each year. Yet the families of these fallen heroes are rarely eligible to receive PSOB benefits.

In January 1978, special Deputy Sheriff Bernard Demag of the Chittenden County Sheriff's Office in Vermont suffered a fatal heart attack within two hours of his chase and apprehension of an escaped juvenile whom he had been transporting. Mr. Demag's family spent nearly two decades fighting in court for workers' compensation death benefits all to no avail. Clearly, we should be treating surviving family members of officers who die in the line of duty with more decency and respect.

Public safety is dangerous, exhausting, and stressful work. A first responder's chances of suffering a heart attack or stroke greatly increase when he or she puts on heavy equipment and rushes into a burning building to fight a fire and save lives. The families of these brave public servants deserve to participate in the PSOB Program if their loved ones die of a heart attack or other cardiac related ailments while selflessly protecting us from harm.

First responders across the country now face a new series of challenges as they respond to millions of emergency calls this year. They do this with an unwavering commitment to the safety of their fellow citizens, and are forever willing to selflessly sacrifice their own lives to protect the lives and property of their fellow citizens. It is time for the Senate to show its support and appreciation for these extraordinarily brave and heroic public safety officers by passing the Hometown Heroes Survivors Benefit Act.

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

Mr. President, I rise today in support of Democratic Leader Daschle's request to bring before the Senate the Economic Recovery Act of 2003, S. 414, which includes legislation I introduced last month: the First Responders Partnership Grant Act of 2003.

I thank the Democratic leader for authoring this important economic stimulus package. In seeking to improve homeland security, I am proud that he saw fit to include the First Responders Partnership Grant Act-- on which he, Democratic Whip Reid and Senator Breaux join me as cosponsors. This legislation will supply our Nation's first responders with the support they so desperately need to protect homeland security and prevent and respond to acts of terrorism.

I want to begin by thanking each of our Nation's brave firefighters, emergency rescuers, law enforcement officers, and other first responder personnel for the jobs they do for the American public day in and day out. Our public safety officers are often the first to respond to any crime or emergency situation. On September 11, the Nation saw that the first on the scene at the World Trade Center were the heroic firefighters, police officers, and emergency personnel of New York City. These real-life heroes, many of whom gave the ultimate sacrifice, remind us of how important it is to support our State and local public safety partners.

But while we ask our Nation's first responders to defend us as never before on the front lines against the dark menace of domestic terrorism, we have failed to supply them with the Federal support they need and deserve to protect us, as we expect and need them to protect us.

Since February 7, 2003, the Federal Homeland Security Advisory System has kept State and local first responders on Orange Alert, a ``high'' condition indicating a high probability of a terrorist attack and when additional precautions by first responders are necessary at public events.

Since then, counterterrorism officials have warned that the threat of terrorist attacks on U.S. soil is at a higher level than in previous months due to the possibility of impending military action against Iraq. This is the second time since September 11, 2001, that the national warning level has been at Orange Alert--from September 10 to September 24 last year, Attorney General Ashcroft declared our country at Orange Threat level.

From March 12, 2002, until this month, we were at Yellow Alert, an ``elevated'' threat level declared when there is a significant risk of terrorist attacks, requiring increased surveillance of critical locations.

Counties, cities, and towns in my home State of Vermont and across the United States find themselves overwhelmed by increasing homeland security costs required by the Federal Government. Indeed, the National Governors' Association estimates that States incurred around $7 billion in security costs over the past year alone.

As a result, the national threat alerts and other Federal homeland security requirements have become unfunded Federal mandates on our State and local governments. Rutland County Sheriff R.J. Elrick, president of the Vermont Sheriffs' Association, recently wrote to me:

We are in dire need of financial support to keep our

personnel trained and equipped to meet the challenges here at

home as we continue our vigilant commitment to fight

terrorism.

When terrorists strike, first responders are and will always be the first people we turn to for help. We place our lives and the lives of our families and friends in the hands of these officers, trusting that when called upon they will protect and save us.

Just how, without supplying them with the necessary resources, do we expect our Nation's first responders to realistically carry out their duties?

Our State and local law enforcement officers, firefighters and emergency personnel are full partners in preventing, investigating, and responding to terrorist acts. They need and deserve the full collaboration of the Federal Government to meet these new national responsibilities.

Washington is buzzing about the literally hundreds of billions of additional dollars the President plans to ask Congress to provide for our military services to fight the war on terrorism abroad. The same cannot be said for helping security here at home, which is shamefully overlooked.

For a year and a half I have been working hard to remedy that, with allies like our distinguished Democratic leader and assistant Democratic leader, and New York Senators Schumer and Clinton. As former chair and now ranking member of the Judiciary Committee, I have made it a high priority to evaluate and meet the needs of our first responders.

For these reasons, I commend the Democratic leader for including in the homeland security section of his economic stimulus package the First Responders Partnership Grant Act, which will give our Nation's law enforcement officers, firefighters, and emergency personnel the resources they need to do their jobs. This legislation will establish a grant program at the Department of Homeland Security to provide $5 billion nationwide for current fiscal year to support State and local public safety officers in their efforts to protect homeland security and prevent and respond to acts of terrorism.

Similar to the highly successful Department of Justice Community Oriented Policing Services--COPS--and the Bulletproof Vest Partnership Grant Programs, the First Responder Grants will be made directly to State and local government units for overtime, equipment, training, and facility expenses to support our law enforcement officers, firefighters, and emergency personnel.

The First Responder Grants may be used to pay up to 90 percent of the cost of the overtime, equipment, training, or facility. In cases of fiscal leadership, the Department of Homeland Security may waive the local match requirement of 10 percent to provide Federal funds for communities that cannot afford the local match.

In a world shaped by the violent events of September 11, day after day we call upon our public safety officers to remain vigilant. We not only ask them to put their lives at risk in the line of duty, but also, if need be, give their lives to protect us.

If we take time to listen to our Nation's State and local public safety partners, they will tell us that they welcome the challenge to join in our national mission to protect our homeland security. But we cannot ask our firefighters, emergency personnel, and law enforcement officers to assume these new national responsibilities without also providing new Federal support.

The First Responders Partnership Grant Act will provide the necessary Federal support for our State and public safety officers to serve as full partners in the fight to protect our homeland security. We need our first responders for the security and the life-saving help they bring to our communities. All they ask is for the tools they need to do their jobs for us. And for the sake of our own security, that is not too much to ask.

I commend Senator Daschle for his leadership, and hope that the Senate will soon consider this desperately needed economic stimulus package.

Mr. President, I rise today, joined by my good friends, Senators Grassley and Specter, to introduce the Domestic Surveillance Oversight Act of 2003. This bill does not change or diminish any power available to the government in the pursuit of homeland security, but it does create important mechanisms to allow the Congress and the public to assess how effectively and appropriately the government is using its domestic surveillance powers.

I also rise to speak about an important bipartisan report being released today by myself, Senator Specter, and Senator Grassley entitled ``FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures,'' ``FIF Report''. The report summarizes our joint conclusions based upon our bipartisan oversight of the FBI and DOJ's performance in using the Foreign Intelligence Surveillance Act, ``FISA'', an important tool in conducting domestic surveillance. The report distills our mutual findings and conclusions from numerous bipartisan hearings, classified briefings and other oversight activities. It concludes that the FBI continues to be in need of serious reform. The report also sets forth our bipartisan disappointment with the DOJ and FBI's non-responsiveness to our oversight efforts and the resulting necessity for better oversight tools, such as the bill we introduce today.

Our committee worked with the FBI and the Justice Department to achieve initial reforms both through administrative steps and also through legislation. Most notably, last fall we enacted a new Department of Justice charter that included some provisions of the FBI Reform Act. We need to enact the rest of that bipartisan bill.

Taken together, this bill and report represent a bipartisan statement about the importance of oversight and, where possible, sunshine on the government's domestic surveillance efforts. Only by fulfilling our constitutional responsibility to conduct such oversight, can we in Congress help to protect both the security and the liberty of the American people.

In times of national stress there is an understandable impulse for the government to ask for more power. Sometimes more power is needed, but many times it is not. After the September 11 attacks, we worked together in a bipartisan fashion and with unprecedented speed to craft and enact the USA PATRIOT Act which enhanced the government's powers.

Now, as word continues to circulate about a possible sequel to the USA PATRIOT Act that the Department of Justice is considering in secret and that supposedly would give government even more power, it is constructive for us to first examine and understand how Federal agencies are using the power they already have. We must answer two questions.

First, is that power being used effectively, so that our citizens not only feel safer, but are in fact safer?

Second, is that power being used appropriately, so that our liberties are not sacrificed?

In short, before we can craft and enact new laws, we must first make sure that the Department of Justice and FBI are properly using the laws that are already on the books. That is the purpose of enhanced Congressional oversight.

Domestic Surveillance Oversight Act:

Today, with the Senior Senator from Iowa and the Senior Senator from

Pennsylvania, I am introducing the bipartisan Domestic Surveillance Oversight Act of 2003. This bill provides basic information to Congress and the American people about the FBI's use of FISA to conduct surveillance on Americans. Such domestic surveillance is certainly appropriate in some cases, and the bill does not intrude in any way upon law enforcement or diminish its ability to conduct FISA surveillance when necessary and appropriate. Nor does it require the Department of Justice to publicly release any sensitive or classified information. Rather, it seeks reporting only on the aggregate number of FISA wiretaps and other surveillance measures directed specifically against Americans each year. In this way, the public and Congress can assess over time whether the government has turned more of its powerful surveillance techniques on its own citizens, as opposed to non-U.S. persons. If necessary, we can ask it to explain its actions.

The amendment also clarifies that the Foreign Intelligence Surveillance Court, FISC, and FISA Court of Review have the authority to adopt rules and procedures, and it requires that those rules be shared with the Intelligence and Judiciary Committees of the Senate and House of Representatives as well as the Supreme Court. In the last year, and only after requests from Senators Grassley, Specter and myself, the FISC shared its rules with Congress for the first time. One of those rules and one which was eventually rejected by the FISA Review Court embodied a controversial legal interpretation of a provision we crafted in the USA PATRIOT Act. The Congress ought to have been immediately informed of that court rule either by the FISC or the DOJ, but it was not. It is entirely appropriate that a court be enabled to promulgate its own rules. It is entirely inappropriate that those rules be kept secret from Congress.

Consistent with national security, the bill directs the Attorney General to include in an annual public report the portions of applications to and opinions of the FISC and FISA Court of Review that contain significant legal interpretations of FISA or the Constitution. These disclosures will not include the facts of any particular case, which this provision requires to be redacted in order to preserve national security. This type of disclosure, however, will prevent secret case law from developing which interprets both FISA and the Constitution in ways unknown to the Congress and the public.

The first annual report required under this provision is also to include the same type of legal information for the four years before the year of the first report.

Finally, the bill would require a report to appropriate committees of Congress on the use of National Security Letters to request information from public libraries or libraries affiliated with high schools or universities. Such letters are functionally equivalent to an administrative subpoena and require no court approval. We have heard from members of the library community that the FBI may be returning to a discredited practice from the Hoover days of monitoring public and college libraries to ascertain what books people are reading. In fact, a media report from Vermont, which I ask consent to place in the Record, indicates that bookstore owners there are scared to keep records for just this reason. Again, this provision would not in any way limit the use of National Security Letters, but would merely require an annual report of such activities to Congress, so that we can ascertain whether or not these administrative subpoenas are being used for improper purposes. This section would also ensure that reports on the use of such letters are provided to all appropriate oversight committees.

This enhanced reporting is exactly what was called for by the American Bar Association in a resolution adopted on February 10, and echoed in a Washington Post editorial on February 12, 2003. As the Post editorialized, the Department of Justice ``needs to disclose how it is using the [powers] it already has. Yet the Justice Department has balked at reasonable oversight and public information requests . . . Congress should insist on a full understanding of what the [D]epartment is doing.'' I ask unanimous consent to print a copy both of the ABA resolution as well as the Washington Post editorial in the Record.

Mr. President, I rise today, joined by my good friends, Senators Grassley and Specter, to introduce the Domestic Surveillance Oversight Act of 2003. This bill does not change or diminish any power available to the government in the pursuit of homeland security, but it does create important mechanisms to allow the Congress and the public to assess how effectively and appropriately the government is using its domestic surveillance powers.

I also rise to speak about an important bipartisan report being released today by myself, Senator Specter, and Senator Grassley entitled ``FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures,'' ``FIF Report''. The report summarizes our joint conclusions based upon our bipartisan oversight of the FBI and DOJ's performance in using the Foreign Intelligence Surveillance Act, ``FISA'', an important tool in conducting domestic surveillance. The report distills our mutual findings and conclusions from numerous bipartisan hearings, classified briefings and other oversight activities. It concludes that the FBI continues to be in need of serious reform. The report also sets forth our bipartisan disappointment with the DOJ and FBI's non-responsiveness to our oversight efforts and the resulting necessity for better oversight tools, such as the bill we introduce today.

Our committee worked with the FBI and the Justice Department to achieve initial reforms both through administrative steps and also through legislation. Most notably, last fall we enacted a new Department of Justice charter that included some provisions of the FBI Reform Act. We need to enact the rest of that bipartisan bill.

Taken together, this bill and report represent a bipartisan statement about the importance of oversight and, where possible, sunshine on the government's domestic surveillance efforts. Only by fulfilling our constitutional responsibility to conduct such oversight, can we in Congress help to protect both the security and the liberty of the American people.

In times of national stress there is an understandable impulse for the government to ask for more power. Sometimes more power is needed, but many times it is not. After the September 11 attacks, we worked together in a bipartisan fashion and with unprecedented speed to craft and enact the USA PATRIOT Act which enhanced the government's powers.

Now, as word continues to circulate about a possible sequel to the USA PATRIOT Act that the Department of Justice is considering in secret and that supposedly would give government even more power, it is constructive for us to first examine and understand how Federal agencies are using the power they already have. We must answer two questions.

First, is that power being used effectively, so that our citizens not only feel safer, but are in fact safer?

Second, is that power being used appropriately, so that our liberties are not sacrificed?

In short, before we can craft and enact new laws, we must first make sure that the Department of Justice and FBI are properly using the laws that are already on the books. That is the purpose of enhanced Congressional oversight.

Domestic Surveillance Oversight Act:

Today, with the Senior Senator from Iowa and the Senior Senator from

Pennsylvania, I am introducing the bipartisan Domestic Surveillance Oversight Act of 2003. This bill provides basic information to Congress and the American people about the FBI's use of FISA to conduct surveillance on Americans. Such domestic surveillance is certainly appropriate in some cases, and the bill does not intrude in any way upon law enforcement or diminish its ability to conduct FISA surveillance when necessary and appropriate. Nor does it require the Department of Justice to publicly release any sensitive or classified information. Rather, it seeks reporting only on the aggregate number of FISA wiretaps and other surveillance measures directed specifically against Americans each year. In this way, the public and Congress can assess over time whether the government has turned more of its powerful surveillance techniques on its own citizens, as opposed to non-U.S. persons. If necessary, we can ask it to explain its actions.

The amendment also clarifies that the Foreign Intelligence Surveillance Court, FISC, and FISA Court of Review have the authority to adopt rules and procedures, and it requires that those rules be shared with the Intelligence and Judiciary Committees of the Senate and House of Representatives as well as the Supreme Court. In the last year, and only after requests from Senators Grassley, Specter and myself, the FISC shared its rules with Congress for the first time. One of those rules and one which was eventually rejected by the FISA Review Court embodied a controversial legal interpretation of a provision we crafted in the USA PATRIOT Act. The Congress ought to have been immediately informed of that court rule either by the FISC or the DOJ, but it was not. It is entirely appropriate that a court be enabled to promulgate its own rules. It is entirely inappropriate that those rules be kept secret from Congress.

Consistent with national security, the bill directs the Attorney General to include in an annual public report the portions of applications to and opinions of the FISC and FISA Court of Review that contain significant legal interpretations of FISA or the Constitution. These disclosures will not include the facts of any particular case, which this provision requires to be redacted in order to preserve national security. This type of disclosure, however, will prevent secret case law from developing which interprets both FISA and the Constitution in ways unknown to the Congress and the public.

The first annual report required under this provision is also to include the same type of legal information for the four years before the year of the first report.

Finally, the bill would require a report to appropriate committees of Congress on the use of National Security Letters to request information from public libraries or libraries affiliated with high schools or universities. Such letters are functionally equivalent to an administrative subpoena and require no court approval. We have heard from members of the library community that the FBI may be returning to a discredited practice from the Hoover days of monitoring public and college libraries to ascertain what books people are reading. In fact, a media report from Vermont, which I ask consent to place in the Record, indicates that bookstore owners there are scared to keep records for just this reason. Again, this provision would not in any way limit the use of National Security Letters, but would merely require an annual report of such activities to Congress, so that we can ascertain whether or not these administrative subpoenas are being used for improper purposes. This section would also ensure that reports on the use of such letters are provided to all appropriate oversight committees.

This enhanced reporting is exactly what was called for by the American Bar Association in a resolution adopted on February 10, and echoed in a Washington Post editorial on February 12, 2003. As the Post editorialized, the Department of Justice ``needs to disclose how it is using the [powers] it already has. Yet the Justice Department has balked at reasonable oversight and public information requests . . . Congress should insist on a full understanding of what the [D]epartment is doing.'' I ask unanimous consent to print a copy both of the ABA resolution as well as the Washington Post editorial in the Record.

Mr. President, I will speak for a few minutes regarding the debate on Mr. Estrada. The reason I say this, when I came on the floor I heard a great deal of discussion about the Hispanic National Bar Association. I heard from my friends on the other side of the aisle the current president of the Hispanic National Bar Association has led the support of this organization for Mr. Estrada's nomination, which is so. However, it jogged my memory that this morning I received a letter from 15 former presidents of the Hispanic National Bar Association. These 15 take an entirely different position than the current president: 15 well-respected former national leaders of this important bar association. They date back to the founding of it in 1972.

They have written to the Senate to oppose this nomination. They wrote to Senator Hatch and they wrote to Senator Frist, as well as to Senator Daschle and myself. I am sure the speakers earlier this morning, when they spoke of the importance of the position of the president of the Hispanic National Bar Association, were probably not aware that but one is in favor of Mr. Estrada and 15 were opposed. It is very weighty opposition for 15 prior presidents of the Hispanic National Bar Association, based on the criteria to evaluate judicial nominees that this association has formally used since 1991, which has been the practical standard for the past 30 years, to make this assessment.

In addition to the candidate's professional experience and temperament, the criteria for endorsement includes the extent to which a candidate has been involved, supportive of, and responsive to the issues, needs, and concerns of Hispanic Americans and, secondly, the candidate's demonstrated commitment to the concept of equal opportunity and equal justice under the law.

In the view of the overwhelming majority of the living past presidents of the Hispanic National Bar Association, Mr. Estrada's record does not provide evidence that meets those criteria. But they say his candidacy ``falls short in these respects.''

They conclude:

We believe that for many reasons including: his virtually

non-existent written record, his verbally expressed and

unrebutted extreme views, his lack of judicial or academic

teaching experience (against which his fairness, reasoning

skills and judicial philosophy could be properly tested), his

poor judicial temperament, his total lack of any connection

whatsoever to, or lack of demonstrated interest in the

Hispanic community, his refusals to answer even the most

basic questions about civil rights and constitutional law,

his less than candid responses to other straightforward

questions of Senate Judiciary Committee members, and because

of the Administration's refusal to provide the Judiciary

Committee the additional information and cooperation it needs

to address these concerns, the United States Senate cannot

and must not conclude that Mr. Estrada can be a fair and

impartial appellate court judge.

This is a significant letter because during the tenure of these past presidents, the Hispanic National Bar Association has had a fair nonpartisan record of following its criteria, and endorsing or not endorsing or rejecting nominees, regardless of whether the nominee is Republican or Democrat. They follow the same criteria for Republicans and Democrats. The HNBA has been at the forefront of the effort to increase diversity on the Federal bench and improve the public confidence among Hispanics and others in the fairness of the Federal courts. They have supported Republican nominees as well as Democratic nominees. But these 15 individuals, who devoted a great deal of time in their legal careers to advancing the careers of Hispanics in the legal community, have felt compelled publicly to oppose the Estrada nomination, although they publicly supported both Democrats and Republicans before. This one they opposed.

I ask unanimous consent the letter that was sent to me, to Senator Hatch, to Senator Frist, and to Senator Daschle be printed in the Record.

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

Am I correct, at the request of the majority leader, there will be no vote prior to 5:30?

Mr. President, because we are starting late, I ask unanimous consent--and obviously I would not object to a change should the majority leader or his designee ask otherwise--I ask unanimous consent the vote be at 5:30, and the time be equally divided between Senator Hatch and myself.

I understand, Mr. President, having started the debate at 3:30, the time would run out at 5:30; is that correct?

Were I to yield back my time, we would still be in a situation where it would occur prior to 5:30, unless we were in a quorum call; is that correct?

I see your staff running around making suggestions to the Presiding Officer. I wanted to remind them that while Senators are merely constitutional impediments to the staff, in the minds of some, we could still have the vote at 5:30. I am trying to keep this schedule to what the distinguished majority leader wanted and do what was told others. Frankly, I don't care when the vote is, but I do thank the staff for trying to keep us on other schedules.

If we go the full time, then the vote would be, am I correct, unless some time is yielded back, it would be around 20 minutes to 6 and not 5:30?

The distinguished senior Senator from Utah is on his way back from another engagement. I will begin.

I join with Senator Hatch, the Chairman of the Judiciary Committee, in urging passage of S. 151, the Hatch-Leahy PROTECT Act, a bill providing important new tools to fight child pornography. I commend Senator Hatch for his leadership and his unflagging efforts to protect our nation's children

from exploitation by child pornographers.

When Senator Hatch and I introduced this bill last month, I supported passing a bill that was identical to the measure that we worked so hard on in the last Congress. That bill had passed the Judiciary Committee and the Senate unanimously in the 107th Congress. It did not become law last year because, even though the Senate was still meeting, considering and passing legislation, the House of Representatives had adjourned and would not return to take action on this measure that had passed the Senate unanimously or to work out our differences.

As I said when we introduced the Hatch-Leahy PROTECT Act and again as the Judiciary Committee considered this measure, although this bill is not perfect, it is a good faith effort to provide powerful tools for prosecutors to deal with the problem of child pornography within constitutional limits. We failed to do that in the 1996 Child Pornography Prevention Act--``CPPA'', much of which the Supreme Court struck down last year. We must not make the same mistake again. The last thing we want to do is to create years of legal limbo for our nation's children, after which the courts strike down yet another law as unconstitutional.

I also said at our Judiciary Committee meeting that I hoped we could pass the bill in the same form as it unanimously passed in the last Congress. That is still my position and I believe it would have been wiser to proceed in that manner. Since my colleagues on the other side of the aisle and the Administration have jointly decided not to follow this route, however, I have nevertheless continued to work with Senator Hatch to craft the strongest bill possible that will produce convictions that will stick under the constitution.

I urge the Senate to pass this legislation, and I strongly urge the Republican leadership in the House of Representatives to take this second opportunity to pass this important legislation in the form that we send to them. I urge the Administration to support this bipartisan measure, instead of using this debate as an opportunity to add more changes that strive to make an ideological statement, but which may not withstand Constitutional scrutiny and may bog down the bill. If we act in a bipartisan manner, we can have a bill to the President that can begin working for America's children in short order.

I want to take a moment to speak again about the history of this important bill and the joint effort that it took to get to this point. In May of 2002, I came to the Senate floor and joined Senator Hatch in introducing the PROTECT Act, after the Supreme Court's decision in Ashcroft v. Free Speech Coalition ``Free Speech''. Although there were some others who raised constitutional concerns about specific provisions in that bill, I believed that unlike legislative language proposed by the Administration in the last Congress, it was a good faith effort to work within the First Amendment.

Everyone in the Senate agrees that we should do all we can to protect our children from being victimized by child pornography. That would be an easy debate and vote. The more difficult thing is to write a law that will both do that and will produce convictions that stick. In 1996, when we passed the CPPA many warned us that certain provisions of that Act violated the First Amendment. The Supreme Court's decision last year in Free Speech has proven them correct.

We should not sit by and do nothing. It is important that we respond to the Supreme Court's decision. It is just as important, however, that we avoid repeating our past mistakes. Unlike the CPPA, this time we should respond with a law that passes constitutional muster. Our children deserve more than a press conference on this issue. They deserve a law that will last rather than be stricken from the law books.

It is important that we do all we can to end the victimization of real children by child pornographers, but it is also important that we pass a law that will withstand First Amendment scrutiny. We need a law with real bite, not one with false teeth.

After joining Senator Hatch in introducing the PROTECT Act in the 107th Congress, as chairman of the Judiciary Committee in the last Congress, I convened a hearing on October 2, 2002 on the legislation. We heard from the Administration, from the National Center for Missing and Exploited Children--``NCMEC'', and from experts who came and told us that our bill, as introduced, would pass constitutional muster, but the House-passed bill supported by the Administration would not.

I then placed the Hatch-Leahy PROTECT Act on the Judiciary Committee's calendar for the October 8, 2002, business meeting. I continued to work with Senator Hatch to improve the bill so that it could be quickly enacted. Unfortunately the Judiciary Committee was unable to consider it because of procedural maneuvering by my colleagues that had nothing to do with this important legislation.

I still wanted to get this bill done. That is why, for a full week in October, I worked to clear and have the full Senate pass a substitute to the bill that tracked the Hatch-Leahy proposed committee substitute in nearly every area. Indeed, the substitute I offered even adopted parts of the House bill which would help the NCMEC work with local and state law enforcement on these cases. Twice, I spoke on the Senate floor imploring that we approve such legislation. As I stated then, every single Democratic Senator cleared that measure. I then urged Republicans to work on their side of the aisle to clear this measure-- so similar to the joint Hatch-Leahy substitute--so that we could swiftly enact a law that would pass constitutional muster. Unfortunately, they did not. Facing the recess before the mid-term elections, we were stymied again.

Even after the last election, however, during our lame duck session, I continued to work with Senator Hatch to pass this legislation through the Senate. As I had stated I would do prior to the election, I called a meeting of the Judiciary Committee on November 14, 2002. In the last meeting of the Judiciary Committee under my Chairmanship in the 107th Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda yet again. At that meeting the Judiciary Committee amended and approved this legislation. We agreed on a substitute and to improvements in the victim shield provision that I authored.

Although I did not agree with certain of Senator Hatch's amendments, because I thought that they risked having the bill declared unconstitutional, I nevertheless both called for the Committee to approve the bill and voted for the bill in its amended form. That is the legislative process. I compromised on some issues, and Senator Hatch compromised on others. Even though the bill was not exactly as either of us would have wished, we both worked fervently to seek its passage.

I sought, the same day as the bill unanimously passed the Judiciary Committee, to gain the unanimous consent of the full Senate to pass the Hatch-Leahy PROTECT Act as reported, and I worked with Senator Hatch to clear the bill on both sides of the aisle. I am pleased that the Senate did pass the bill by unanimous consent. I want to thank Senator Hatch for all he did to help clear the bill for passage in the 107th Congress. Unfortunately, the House failed to act on this measure last year and the Administration decided not to push for passage. If they had, we could have passed a bill, sent it to the President, and already had a new law on the books.

Instead, we were forced to repeat the entire process again, and I am here again with Senator Hatch asking yet again that this bill be enacted. I am glad to have been able to work hand-in-hand with Senator Hatch on the PROTECT Act because, it is a bill that gives prosecutors and investigators the tools they need to combat child pornography. The Hatch-Leahy PROTECT Act strives to be a serious response to a serious problem. Let me outline some of the bill's important provisions:

Section 3 of the bill creates two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. Each of these new crimes carries a 15 year maximum prison sentence for a first offense and double that term for repeat offenders. First, the bill criminalizes the pandering of child pornography, creating a new crime to respond to the Supreme Court's recent ruling striking down the CPPA's definition of pandering. This provision is

narrower than the old ``pandering'' definition in at least one way that responds to a specific Court criticism. The new crime only applies to the people who actually pander the child pornography or solicit it, not to all those who possess the material ``downstream'' and it requires the government to demonstrate that the defendant acted with the specific intent that the material is believed to be child pornography. The bill also contains a directive to the Sentencing Commission which asks it to distinguish between those who pander or distribute such material and those who only ``solicit'' the material. As with narcotics cases, distributors and producers are more culpable than users and should be more harshly punished for maximum deterrent effect.

I would have liked for the pandering provision to be crafted more narrowly so that ``purported'' material was not included and so that all pandering prosecutions would be linked to ``obscenity'' doctrine. That is the way that Senator Hatch and I originally wrote and introduced this provision in the last Congress. Unfortunately, the amendment process has resulted in some expansions to this once non- controversial provision that may subject it to a constitutional challenge. Thus, while it responds to some specific concerns raised by the Supreme Court there are constitutional issues that the courts will have to seriously consider with respect to this provision. I will discuss these issues later.

Second, the bill creates a new crime that I proposed to take direct aim at one of the chief evils of child pornography: namely, its use by sexual predators to entice minors either to engage in sexual activity or the production of more child pornography. This was one of the compelling arguments made by the government before the Supreme Court in support of the CPPA, but the Court rejected that argument as an insufficient basis to ban the production, distribution or possession of ``virtual'' child pornography. This bill addresses that same harm in a more targeted and narrowly tailored manner. It creates a new felony, which applies to both actual and virtual child pornography, for people who use such material to entice minors to participate in illegal activity. This will provide prosecutors a potent new tool to put away those who prey upon children using such pornography B whether the child pornography is virtual or not.

Next, this bill attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children. Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography--i.e. that it was made using computers. At the same time, this provision protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense. As a former prosecutor I suggested this provision because it effects the real way that these important trials are conducted. With the provision, the government will have sufficient notice to marshal the expert testimony that may be needed to rebut this ``virtual porn'' defense in cases where real children were victimized.

This improved affirmative defense measure also provides important support for the constitutionality of much of this bill after the Free Speech decision. Even Justice Thomas specifically wrote that it would be a key factor for him. This is one reason for making the defense applicable to all non-obscene, child pornography, as defined in 18 U.S.C. Sec. 2256. In the bill's current form, however, the affirmative defense is not available in one of the new proposed classes of virtual child pornography, which would be found at 18 U.S.C. Sec. 2252B(b)(2). This omission may render that provision unconstitutional under the First Amendment, and I hope that, as the legislative process continues, we can work to improve the bill in this and other ways. I do not want to be here again in five years, after yet another Supreme Court decision striking this law down.

The bill also provides needed assistance to prosecutors in rebutting the virtual porn defense by removing a restriction on the use of records of performers portrayed in certain sexually explicit conduct that are required to be maintained under 18 U.S.C. Sec. 2257, and expanding such records to cover computer images. These records, which will be helpful in proving that the material in question is not ``virtual'' child pornography, may be used in federal child pornography and obscenity prosecutions under this Act. The purpose of this provision is to protect real children from exploitation. It is important that prosecutors have access to this information in both child pornography and obscenity prosecutions, since the Supreme Court's recent decision has had the effect of narrowing the child pornography laws, making more likely that the general obscenity statutes will be important tools in protecting children from exploitation. In addition, the Act raises the penalties for not keeping accurate records, further deterring the exploitation of minors and enhancing the reliability of the records.

Next, the Hatch-Leahy bill contains several provisions altering the definition of ``child pornography'' in response to the Free Speech case. One approach would have been simply to add an ``obscenity'' requirement to the child pornography definitions. Outlawing all obscene child pornography--real and virtual; minor and `youthful-adult;' simulated and real--would clearly pass a constitutional challenge because obscene speech enjoys no protection at all. Under the Miller obscenity test, such material (1) ``appeals to the prurient interest,'' (2) is utterly ``offensive'' in any ``community,'' and (3) has absolutely no serious ``literary, artistic or scientific value.''

Some new provisions of this bill do take this ``obscenity'' approach, like the new Sec. 2252B(b)(1) and, to a lesser extent the new Sec. 2252B(b)(2), which I crafted with Senator Hatch. Other provisions, however, take a different approach. Specifically, the CPPA's definition of ``identifiable minor'' has been modified in the bill to include a prong for persons who are ``virtually indistinguishable from an actual minor.'' This adopts language from Justice O'Connor's concurrence in the Free Speech case. Thus, while this language is defensible, I predict that this provision will be the center of much constitutional debate. Although I will explain in more detail later, these new definitional provisions risk crossing the constitutional line. I am not alone in this view and ask to have supporting letters from constitutional experts printed in the record.

This bill also contains a variety of other measures designed to increase jail sentences in cases where children are victimized by sexual predators. First, it enhances penalties for repeat offenders of child sex offenses by expanding the predicate crimes which trigger tough, mandatory minimum sentences. Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines. The current sentences for a person who actually travels across state lines to have sex with a child are not as high as for child pornography. The Commission needs to correct this oversight immediately, so that prosecutors can take these dangerous sexual predators off the street. These are all strong measures designed to protect children and increase prison sentences for child molesters and those who otherwise exploit children.

The Hatch-Leahy PROTECT Act also has several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. It is important that they not be victimized yet again in the criminal process. This bill provides for the first time ever an explicit shield law that prohibits the name or other non physical identifying information of the child victim (other than the age or approximate age) from being admitted at any child pornography trial. It is also intended that judges can and will take appropriate steps to ensure that such information as the child's name, address or other

identifying information not be publicly disclosed during the pretrial phase of the case or at sentencing as well. The bill also contains a provision requiring the judge to instruct the jury, upon request of the government, that no inference should be drawn against the United States because of information inadmissible under the new shield law.

The Hatch-Leahy PROTECT Act also amends certain reporting provisions governing child pornography. Specifically, it allows federal authorities to report information they receive from the Center from Missing and Exploited Children, (``CMEC''), to state and local police without a court order. In addition, the bill removes the restrictions under the Electronic Communications Privacy Act, (ECPA) for reporting the contents of, and information pertaining to, a subscriber of stored electronic communications to the CMEC when a mandatory child porn report is filed with the CMEC pursuant to 42 U.S.C. Sec. 13032.

While this change may invite rogue federal, state or local agents to try to circumvent all subpoena and court order requirements under ECPA and allow them to obtain subscriber emails and information by triggering the initial report to the CMEC themselves, it should be well understood that this is not the intention behind this provision. These important safeguards are not being altered in any way, and a deliberate use of the tip line by a government agent to circumvent the well established statutory requirements of these provisions would be a serious violation of the law. Nevertheless, we should still consider further clarification to guard against subverting the safeguards in ECPA from government officials going on fishing expeditions for stored electronic communications under the rubric of child porn investigations.

As I made clear when this bill was introduced, I continue to express my disappointment in the Department of Justice information sharing regulations related to the CMEC tip line. According to a recent Government Accounting Office, (GAO) report, due to outdated turf mentalities, the Attorney General's regulations exclude both the United States Secret Service and the U.S. Postal Inspection Service from direct access to important tip line information. That is totally unacceptable, especially in the post 9-11 world where the importance of information sharing is greater than ever. How can the Administration justify support of this Hatch-Leahy bill, which allows state and local law enforcement officers such access, when they are simultaneously refusing to allow other federal law enforcement agencies access to the same information? I made this request in my statement when we introduced this bill, but once more I urge the Attorney General to end this unseemly turf battle and to issue regulations allowing both the Secret Service and the Postal Inspection Service, who both perform valuable work in investigating these cases, to have access to this important information so that they can better protect our nation's children.

The Hatch-Leahy bill also provides for extraterritorial jurisdiction where a defendant induces a child to engage in sexually explicit conduct outside the United States for the purposes of producing child pornography which they intend to transport to the United States. The provision is crafted to require the intent of actual transport of the material into the United States, unlike the House bill from the last Congress, which criminalized even an intent to make such material ``accessible.'' Under that overly broad wording, any material posted on a web site internationally could be covered, whether or not it was ever intended that the material be downloaded in the United States. Under the bill we consider today, however, proof of a specific intent to send such material to the United States is required.

Finally, the bill provides a new private right of action for the victims of child pornography. This provision has teeth, including injunctive relief and punitive damages that will help to put those who produce child pornography out of business for good. I commend Senator Hatch for his leadership on this provision and his recognition that such punitive damages provisions are important means of deterring misconduct. These provisions are important, practical tools to put child pornographers out of business for good and in jail where they belong.

As I mentioned previously, the PROTECT Act is a good faith effort to tackle the child pornography problem, and I have supported its passage from the outset. I am also glad that because of our bipartisan cooperation, Senator Hatch and I were able to offer a joint amendment in Committee that strengthened the bill further against constitutional attack. Here are some of the improvements that we jointly made to the bill as introduced.

The Hatch-Leahy amendment created a new specific intent requirement in the pandering crime. The provision is now better focused on the true wrongdoers and requires that the government prove beyond a reasonable doubt that the defendant actually intended others to believe that the material in question is obscene child pornography. This is a positive step.

The Hatch-Leahy amendment narrowed the definition of ``sexually explicit conduct'' for prosecutions of computer created child pornography. Although I continue to have serious reservations about the constitutionality of prosecuting cases involving such ``virtual child pornography'' after the Supreme Court's decision in Free Speech Coalition v. Ashcroft, narrowing the definition of the conduct covered provides another argument that the provision is not as overbroad as the one in the CPPA. I had also proposed a change that contained an even better definition, in order to focus the provision to true ``hard core'' child pornography, and I hope we will consider such a change as the process continues.

The Hatch-Leahy amendment the saved the existing ``anti-morphing'' provision from a fresh constitutional attack by excluding 100% virtual child pornography from its scope. That morphing provision was one of the few measures from the CPPA that the Supreme Court did not strike down last year. I am pleased that we are avoiding placing this measure in constitutional peril in this bill.

The Hatch-Leahy amendment refined the definition of virtual child pornography in the provision that Senator Hatch and I worked together to craft last year, which will be new 18 U.S.C. Sec. 2252B. These provisions rely to a large extent on obscenity doctrine, and thus are more rooted in the constitution than other parts of the bill. I was pleased that the Hatch-Leahy amendments includes in new 2252B(2) a definition that the image be ``graphic''--that is one where the genitalia are actually shown during the sex act for two reasons.

First, because the old law would have required proof of ``actual'' minors in cases with ``virtual'' pictures, I believe that this clarification will remove a potential contradiction from the new law which pornographers could have used to mount a defense. Second, it will provide another argument supporting the law's constitutionality because the new provision is narrowly tailored to cover only the most ``hard core'' child pornography. I am disappointed that we could not include a similar definition in the S. 151's other virtual child pornography provision, which was included at the request of the Administration. I hope that will be considered as this bill moves forward.

The Hatch-Leahy amendment also clarifies that digital pictures are covered by the PROTECT Act, an important addition in today's world of digital cameras and camcorders.

These were important changes, and I was glad to work with Senator Hatch to craft them.

This law is not perfect, however, and I would have liked to see some additional improvements to the bill. Let me outline some of them.

First, regarding the tip line, I would have liked to further clarify that law enforcement agents may not and should not ``tickle the tip line'' to avoid the key protections of the Electronic Communications Privacy Act (ECPA). This might have included clarifying 42 U.S.C. Sec. 13032 that the initial tip triggering the report may not be generated by the government's investigative agents themselves. A tip line to the CMEC is just that--a way for outsiders to report wrongdoing to the CMEC and the government, not for the government to generate a report to itself without following otherwise required lawful process. It was not the intent of any part of this bill to alter that purpose.

Second, regarding the affirmative defense, I would have liked to ensure that there is an affirmative defense for each new category of child pornography and for all cases where a defendant can prove in court that a specific, non-obscene image was made using not any child but only actual, identifiable adults. That will no doubt be a basis for attacking the constitutionality of this law.

As a general matter, it is worth repeating that we could be avoiding all these problems were we to take the simple approach of outlawing ``obscene'' child pornography of all types, which we do in one new provision that I suggested. That approach would produce a law beyond any possible challenge. This approach is also supported by the National Center for Missing and Exploited Children, which we all respect as the true expert in this field.

Following is an excerpt from the Center's answer to written questions submitted after our hearing, which I will place in the record in its entirety and I quote:

Our view is that the vast majority (99-100%) of all child

pornography would be found to be obscene by most judges and

juries, even under a standard of beyond a reasonable doubt in

criminal cases. Even within the reasonable person under

community standards model, it is highly unlikely that any

community would not find child pornography obscene. . . .

In the post Free Speech decision legal climate, the

prosecution of child pornography under an obscenity approach

is a reasonable strategy and sound policy.

Based on this letter, according to the National Center for Missing and Exploited Children, the approach that is least likely to raise constitutional questions--using established obscenity law--is also an effective one. In short, the obscenity approach is the most narrowly tailored to prevent child pornography. New section 2252B adopts this obscenity approach, but because that is not the approach that other parts of the PROTECT Act uses, I recognize that it contains provisions about which some may have legitimate Constitutional questions.

Specifically, in addition to the provisions that I have already discussed, there were two amendments adopted in the Judiciary Committee in the last Congress and one on this Congress to which I objected that are included in the bill as we consider it today. I felt and still feel that these alterations from the original way that Senator Hatch and I introduced the bill needlessly risk a serious constitutional challenge to a bill that provided prosecutors the tools they needed to do their jobs, and that the bill would be even stronger than it is now were they changed. Let me discuss my opposition to these changes adopted by the Judiciary Committee in this Congress and the last.

Although I worked with Senator Hatch to write the new pandering provision in the PROTECT Act, I did not support two of Senator Hatch's amendments extending the provision to cover (1) ``purported'' material, and (2) material not linked to obscenity.

First, in the last Congress during our markup I objected to an amendment from Senator Hatch to include in the pandering provision ``purported'' material, which criminalizes speech even when there is no underlying material at all--whether obscene or non-obscene, virtual or real, child or adult. The pandering provision is an important tool for prosecutors to punish true child pornographers who for some technical reason are beyond the reach of the normal child porn distribution or production statutes. It is not meant to federally criminalize talking dirty over the internet or the telephone when the person never possesses any material at all. That is speech, and that goes too far.

The original pandering provision in S. 2520 as introduced last Congress was quite broad, and some argued that it presented constitutional problems as written, but I thought that prosecutors needed a strong tool, so I supported Senator Hatch on that provision.

I was heartened that Professor Schauer of Harvard, a noted First Amendment expert, testified at our hearing last year that he thought that the original provision was Constitutional, barely. Unfortunately, Professor Schauer has since written to me stating that this new amendment to include ``purported'' material ``would push well over the constitutional edge a provision that is now up against the edge, but probably barely on the constitutional side of it'' I placed his letter in the record upon introduction of the bill in this Congress on January 13, 2003.

The second amendment to the pandering provision to which I objected expanded it to cover cases not linked in any way to obscenity. It would allow prosecution of anyone who ``presented'' a movie that was intended to cause another person to believe that it included a minor engaging in sexually explicit conduct, whether or not it was obscene and whether or not any real child was involved. Any person or movie theater that presented films like Traffic, Romeo and Juliet, and American Beauty would be guilty of a felony. The very point of these dramatic works is to cause a person to believe that something is true when in fact it is not. These were precisely the overbreadth concerns that led 7 justices of the Supreme Court to strike down parts of the 1996 Act. We do not want to put child porn convictions on hold while we wait another 6 years to see if the law will survive constitutional scrutiny.

Because these two changes endanger the entire pandering provision, because they are unwise, and because that section is already strong enough to prosecute those who peddle child pornography, I oppose those expansions of the provision and still hope that we can reconsider them.

Although I joined Senator Hatch in introducing this bill, even when it was introduced last year I expressed concern over certain provisions. One such provision was the new definition of ``identifiable minor.'' When the bill was introduced, I noted that this provision might ``both confuse the statute unnecessarily and endanger the already upheld ``morphing'' section of the CPPA.'' I said I was concerned that it ``could present both overbreadth and vagueness problems in a later constitutional challenge.'' Unfortunately, this provision remains problematic and susceptible to constitutional challenge.

As the bill developed, a change to the definition of ``identifiable minor'' expanded it to cover ``virtual'' child pornography--that is, 100% computer generated pictures not involving any real children. For that reason, it presented additional constitutional problems similar to the Administration supported House bill. I objected to this amendment when it was added to the bill in the last Congress in Committee, and I continue to have serious concerns with it now.

The ``identifiable minor'' provision in the PROTECT Act may be used without any link to obscenity doctrine. Therefore, what potentially saved the original version we introduced in the 107th Congress was that it applied to child porn made with real ``persons.'' The provision was designed to cover all sorts of images of real kids that are morphed or altered, but not something entirely made by computer, with no child involved.

The change adopted in the Judiciary Committee last year and supported by the Administration, however, redefined ``identifiable minor'' by creating a new category of pornography for any ``computer generated image that is virtually indistinguishable from an actual minor'' dislodged, in my view, that sole constitutional anchor. The new provision could be read to include images that never involved real children at all but were 100 percent computer generated.

That was not the original goal of this provision, and that was the reason it was constitutional. There are other provisions in this bill that deal with obscene virtual child pornography that I support, such as those in new section 2252B, which are linked to obscenity doctrine. This provision, however, was intended to ease the prosecutor's burden in cases where images of real children were cleverly altered to avoid prosecution. By changing the identifiable minor provision into a virtual porn provision, the Administration has needlessly endangered its constitutionality.

For these reasons, I was glad to work alongside Senator Hatch to narrow this provision before the Judiciary Committee. Unfortunately, despite our best efforts, I fear we did not do everything possible to strengthen it against constitutional attack. Let me explain.

Although the Hatch-Leahy amendment adopted in Committee included a

slightly narrower definition of sexually explicit conduct and excluded cartoons, sculptures, paintings, anatomical models and the like, the virtual porn provision still sweeps quite broadly and is potentially vague. New section 2252A(2)(B)(i) lumps in such truly ``hard core'' sexual activities such as intercourse, bestiality, and s&m in with simple lascivious exhibition of the genitals and simulated intercourse where any part of a breast is shown. Equating such disparate types of conduct, however, does not mesh with community standards and is precisely the type of ``one size fits all'' approach that the Supreme Court rejected in the area of virtual pornography in the Free Speech case. The contrast between this broad definition and the tighter definition in new Section 2252B(b)(2), crafted by Senator Hatch and myself, is striking. In fact, I suggested that we include the same definition of ``graphic'' conduct found in new section 2252B in the new Section 2252A virtual child porn provision to better focus it on hard core conduct. Unfortunately, the Administration rejected that proposal and the provision may be open to overbreadth attacks.

I also believe that there is a vagueness concern in the new statute 2252A because, while it is clearly aimed at ``virtual'' child pornography (where no real children are involved), it still requires ``actual'' conduct. In the realm of computer generated images, however, the distinction between actual and simulated conduct makes no sense. It is so vague and confusing that I fear that clever defendants might seek to argue that this new provision still requires proof ``actual'' sexual acts involving real children. I hope that this language is further clarified in order to address these concerns.

The Supreme Court made it clear that we can only outlaw child pornography in two situations: No. 1, it is obscene, or No. 2, it involves real kids. That is the law as stated by the Supreme Court, whether or not we agree with it.

Senator Hatch and I agree that legislation in this area is important. But regardless of our personal views, any law must be within constitutional limits or it does no good at all. The amended identifiable minor provision, which would include most ``virtual child pornography'' in the definition of child pornography, in my view, crosses the constitutional line, however, and needlessly risks protracted litigation that could assist child pornographers in escaping punishment.

Another new provision in the bill includes a mandatory directive to the United States Sentencing Commission to establish penalties for these new crimes at certain levels. In my experience, however, the non- partisan Sentencing Commission operates best when it is allowed to study an issue carefully and come up with a particular sentencing guideline based upon its expertise in these matters. In fact, in child pornography cases the Sentencing Commission has established appropriately high penalties in the past, and there is no reason to believe that it would not do so again with respect to these new laws.

While most all of the provisions of the Hatch-Leahy PROTECT Act are designed to withstand constitutional scrutiny, unfortunately legal experts could not vouch for the constitutionality of the bill supported by the Administration in the last Congress, which seemed to challenge the Supreme Court's decision, rather than accommodate the restraints spelled out by the Supreme Court. That proposal and the associated House bill from the 107th Congress simply ignored the Supreme Court's decision, reflecting an ideological response rather than a carefully drawn bill that would stand up to scrutiny.

I supported passage of the PROTECT Act as Senator Hatch and I introduced it and as it passed the Senate unanimously in the last Senate. Even so, I was willing to work with him to further amend the bill in the Judiciary Committee. Some amendments that we considered in committee I supported because they improved the bill. Others went too far.

These provisions raise legitimate concerns, but in the interest of making progress I support consideration and passage of the measure in its current form. I hope that we can work to further improve this bill so that it has the best possible chance of withstanding a constitutional challenge.

That is not everyone's view. Others evidently think it is more important to make an ideological statement than to write a law. A media report on this legislation at the end of the last Congress reported the wide consensus that the Hatch-Leahy bill was more likely than the House bill to withstand scrutiny, but quoted a Republican House member as stating: ``Even if it comes back to Congress three times we will have created better legislation.''

To me, that makes no sense. Why not create the ``better legislation'' right now for today's children, instead of inviting more years of litigation and putting at risk any convictions obtained in the interim period before the Supreme Court again reviews the constitutionality of Congress' effort to address this serious problem? That is what the PROTECT Act seeks to accomplish.

Even though this bill is not perfect, I am glad to stand with Senator Hatch to secure its approval by the Senate as I did in the last Congress. The floor statements, including my statement today and the statement and material I placed in the Congressional Record on introduction of this bill on January 13, 2003, will be important to the legislative history of this matter, and so I seek consent to place letters from experts in the record commenting upon aspects of the bill. Creating a comprehensive record is especially important for statutes that face constitutional challenges, as this law nearly certainly will.

As I have explained, I believe that this issue is so important that I have been willing to compromise and to support a measure even though I do not agree with each and every provision that it contains. That is how legislation is normally passed. I hope that the administration and the House do not decide to play politics with this issue and seek further changes that could bog the bill down. I urge swift consideration and passage of this important bill as it is currently written. It is aimed at protecting our Nation's children.

Just to further explain my support for this measure and to reiterate, let me continue. As I said when we introduced the Hatch-Leahy PROTECT Act, again, as the Judiciary Committee considered this measure, although the bill is not perfect, and on this subject it is difficult to get a perfect bill, it is a good-faith effort to provide powerful tools for prosecutors to deal with the problem of child pornography within constitutional limits. We failed to do that in 1996 with the Child Pornography Prevention Act, much of which the Supreme Court struck down last year.

I hope we would not make the same mistake again. The last thing we want to do is to create years of legal limbo for our Nation's children, after which the courts strike down yet another law as unconstitutional.

I also said at our Judiciary Committee meeting that I hoped we could pass the bill in the same form as unanimously passed in the last Congress. That is still my position. I believe it would have been wiser to have proceeded in that manner. Since my colleagues on the other side of the aisle, at the request of the administration, have decided not to follow this route, I have nevertheless continued to work with Senator Hatch to craft the strongest bill possible to produce convictions that will stick under the Constitution.

In my years as a prosecutor, I learned that it was important to make sure that any cases we brought were based on legislation that was constitutional in the first place so the prosecution would stick.

I urge the Senate to pass the Hatch-Leahy bill, and I urge the Republican leadership in the House of Representatives to take the second opportunity to pass this important legislation. As I said earlier, the Senate did pass it last year. The other body did not take up our bill.

I also urge the administration to support this bipartisan measure. It is not a partisan issue to be against child pornographers. We are all against child pornographers, Republican or Democrats. Those who are parents or grandparents feel very strongly the desire to pass this legislation. If we act in a bipartisan manner we can have a bill to the President that begins working to

protect America's children, and we can do it in very short order.

Our children deserve more than a press conference on this issue. It is easy enough for people to stand up and say they are against child pornographers, as though anyone here would be for them. But it is one thing to have a press conference and another thing to give to prosecutors tools they can use. Our children deserve a law that will last rather than one that is passed to make political points but will be struck down as unconstitutional.

Let me describe a few of the provisions in the Hatch-Leahy bill. Section 3 of the bill creates two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. The bill creates a new crime that I propose to take direct aim at one of the chief evils of child pornography; namely, its use by sexual predators to entice minors to either engage in sexual activity or other crimes. This 15-year felony will provide prosecutors a potent new tool to put away those who actually prey upon children in using such pornography.

Next, this bill revamps existing affirmative defense of child pornography cases, both in response to criticisms of the Supreme Court. As a former prosecutor, I made sure that the provision is drafted to protect prosecutors from unfair surprise in the use of affirmative defense by requiring a defendant give advance notice of his intent to assert.

Frankly, what I did was put myself in the position of what prosecutors would have to do to get convictions. I tried to make sure by the provisions I put into this bill, that prosecutors would have the tools to give them the best chance to get such convictions.

Next, the Hatch-Leahy bill contains several provisions altering the definition of child pornography in response to the free speech case in allowing prosecution of virtual or computer-created child porn. Some such provisions take the traditional obscenity approach, like the new section 2252(b) which I crafted with Senator Hatch. Other provisions, however, take a broader approach as advocated by the administration last year. I predict this provision will be the center of much constitutional debate. I am afraid that some in the administration were more eager to have a debating point than they were to have something on which prosecutors could rely.

The bill also contains a variety of other measures designed to increase jail sentences in cases where victims are actually sexually victimized by sexual predators. The bill requires the U.S. Sentencing Commission to address what I believe is a disturbing disparity in the current sentencing guidelines.

What is disturbing to me is that the current sentences for a person who actually travels across State lines to have sex with a child are not as high as they are for child pornography. The Commission needs to correct this oversight immediately so prosecutors can take such dangerous sexual predators off the streets.

The Hatch-Leahy PROTECT Act also has several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. Unfortunately, sometimes, if you drag the name of a child who has been the victim of a sexual predator out into the public, then they are victimized yet again, even as you go after the predator. The bill provides for the first time ever an explicit shield law that prohibits a name or other nonphysical identifying information of the child victim from being admitted at child pornography trials.

Finally, the bill provides a new private right of action for the victims of child pornography. This is something we have not done before in this arena. This provision has real teeth. It includes injunctive relief and punitive damages to help put those who produce child pornography out of business for good. I commend Senator Hatch for his recognition that punitive damage provisions are an important means for deterring misconduct.

Some of these people think if they just move from place to place and nothing happens to them, they are free. If they know that whatever profits they make are gone and they are going to have punitive damages assessed and still may face, on top of that, criminal action, then they will think twice. These are important, practical tools not only to put child pornographers out of business but to put them in jail.

The law is not perfect. As I said, I wish we had adopted the version that had unanimously passed the Senate last Congress, that all Republicans and Democrats supported. That was the decision made by the majority not to do that.

As a general matter, it is worth repeating that we could be avoiding all problems if we were to take the simple approach of outlawing obscene child pornography of all types. The reason I say that is because of the experts in this area, and it is a very difficult area, agree. This approach is supported by the National Center for Missing and Exploited Children. I think we all respect them as true experts on protecting the children. I wish we had followed their approach.

Following, again, is an excerpt from the answer to the Senator's written questions submitted after a hearing and I quote:

Our view is that the vast majority (99-100 percent) of all

child pornography would be found to be obscene by most judges

and juries, even under a standard of beyond a reasonable

doubt in criminal cases. . . .

In the post Free Speech decision legal climate, the

prosecution of child pornography under an obscenity approach

is a reasonable strategy and sound policy.

Thus, according to the National Center for Missing and Exploited children, the approach least likely to raise constitutional questions-- using established obscenity law--is also an effective one.

Because certain provisions do not follow this approach, I recognize that some may have legitimate constitutional questions about provisions in this act. These provisions raise legitimate concerns, but in the interests of making progress, I support consideration and passage of the measure in its current form, and I hope we can work to improve the bill so it has the best possible chance of withstanding a constitutional challenge.

The bill is not perfect but I am glad to stand with Senator Hatch to secure its approval by the Senate, as I did in the last Congress.

I know I speak for the Senator from Utah that the thing both of us want is that we have a bill that can be used by those attacking pornographers, prosecutors attacking pornographers, that will stand up in court. It is not a case of there are people for or against child pornographers. We are all against them. But we want to make sure for the prosecutor, if you sue them, if you seek injunctive relief if you prosecute, that you win.

I believe this issue is so important that I have been willing to compromise and to support a measure, even though I do not agree with each and every provision it contains. I hope the administration, and the other body, do not decide to play politics with this issue and seek further changes that could bog down the bill. Had they allowed the bill to go forward last year, the one Senator Hatch and I brought to the floor of the Senate and passed unanimously, we would have a bill in law--a law on the books today. But I urge swift consideration and passage of this important bill as it is currently written. It is aimed at protecting our Nation's children.

It is important we do all we can to end the victimization of real children by child pornographers, but it is also important that we pass a law that will withstand first amendment scrutiny. We need a law with real bite, not one with false teeth.

I ask unanimous consent to have expert views on this legislation printed in the Record, in addition to the supporting letters and materials to which I referred.

Mr. President, I see the distinguished senior Senator from Utah, the chairman of our committee, in the Chamber. As I said earlier, I would certainly yield once he arrived. I commend him for his cosponsorship of this bill. I yield the floor, reserving the remainder of my time.

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

Mr. President, how much time remains for the Senator from Vermont or his designees?

Mr. President, I ask how much time is remaining to the Senator from Vermont and how much time to the Senator from Utah.

While sorely tempted only as a chance to demonstrate an earlier point, I will refrain from that and suggest the absence of a quorum.

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

Mr. President, we are near 5:30. Even though I have more time remaining, in a couple of minutes I am going to yield back that time. I understand from both the Republican side and the Democratic side that Members prefer to vote at 5:30.

Let me first ask for the yeas and nays on the pending legislation.

I thank the Chair.

Mr. President, as I said earlier in my speech, I would much prefer that we pass exactly the bill Senator Hatch and I wrote last year and which passed the Senate unanimously. It was then for some reason that leadership in the other body decided not to bring it up. Now we have written one that is very much like the original Hatch-Leahy bill with some modification. I am worried about some of the modifications because of the constitutional problem that may arise, but I am willing to support this bill and will vote for this bill.

I would hope the other body would take this bill as it is and not add further to it. I think what happened last year was the case where we passed a good piece of legislation. Republicans and Democrats came together across the political spectrum and passed a good bill on child pornography. And some, I guess, were more concerned about making speeches and all than to actually pass a piece of legislation that would protect children.

I have looked at this with the eyes of a former prosecutor. I want to be able to go after child pornographers. There is nobody in this body-- Republican or Democrat--who is on the side of child pornographers. This is not a free speech question; this a child abuse question. Nobody supports those who abuse children for this purpose.

So let us understand that and know we can pass this piece of legislation. Let's hope nobody tries to change it to make a political football of it. Let it go forward.

Mr. President, I ask unanimous consent that Senator Blanche Lincoln of Arkansas be added as a cosponsor of the bill.

With that, Mr. President, I yield the floor and yield back the remainder of my time.

Mr. President, I ask unanimous consent that Steven Dettelbach, a detailee to the Committee on the Judiciary, be granted the privilege of the floor during the rest of today and during any votes.