Floor Statements

If there is no further business to come before the Senate, I ask unanimous consent the Senate stand in adjournment under the previous order.

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 President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. President, I understand the debate is on the qualifications of Thomas Griffith.

I wish to make a few comments with respect to Mr. Griffith. I ask all Members of the Senate to think back on what for many of us will be the most dramatic experience we had as Members of this body. It was an unprecedented situation, certainly in this, the last century. You had to go all the way back to Abraham Lincoln's time to find anything similar to it, when we met in this body with the Chief Justice of the United States, William Rehnquist, sitting in the chair, and held an impeachment trial of the President of the United States.

I doubt very much that will ever happen again. It was a very different kind of trial than the one that occurred with Andrew Johnson the first time this happened. That was purely political with Andrew Johnson, and everybody recognized that. I remember a Member of this body saying that we had actually had three impeachment situations in our history: The first, Andrew Johnson; the second that never got to the Senate, which was Richard Nixon; and the third, President Clinton. The Senator said Andrew Johnson, clearly not guilty, clearly a political vendetta; Richard Nixon, clearly guilty, clearly should have been removed--he stopped that by resigning; and then he said the Clinton one was in between. It was a close case that could have gone one way or the other.

Some of my friends on the Democratic side of the aisle said it is not a question of whether he did it. It is not a question of whether it was a high crime and a misdemeanor. The only question was whether it was a serious enough high crime and misdemeanor on the part of the President of the United States to justify removing him from office. I think that was a thoughtful summary of where things were.

Why am I saying all of this with respect to Thomas Griffith? Because during the period that the Senate went through that very difficult and historic debate, the counsel to the Senate of the United States was Thomas Griffith. In that position, he served both sides. He was not counsel to the majority, he was not counsel to the minority, he was the Senate's counsel.

I remember very well the conversations that took place here, both formally and informally.

I remember the time when we were in a quorum call where the then minority leader, Tom Daschle, and the then majority leader, Trent Lott, met in the well of the Senate, other Senators pressed forward, and pretty soon we had about 30 Senators gathered around talking: What can we do, how can we resolve this, where can we go?

The decision was made, as a result of that, the Senate would go into the old Senate Chamber in executive session, where there were no television cameras, there were no reporters, there was no staff, other than the absolutely essential one or two. We talked about how we could get through this difficult time.

One of the speeches given in that chamber made this comment about the impeachment proceedings with respect to President Clinton. He said: This case is toxic. It has sullied the Presidency. It has stained the House of Representatives. It is about to do the same thing to us.

Unfortunately, the Senator made that prediction, with which I agree, but had no solution. He was just short of explaining how difficult that was going to be out of a sense almost of resignation that this particular case was going to end up besmirching the Senate as badly as it had stained the Presidency and the House of Representatives.

When it was all over, some 30 days later, that particular prediction had not come true. The Senate had not been stained. Indeed, it was one of the Senate's finest hours. We had come together in a civil way, with a deliberate understanding of our responsibility. We had acted responsibly. Every Member of the Senate had voted his or her own conscience, and we had disposed of the case in a manner that reflected well upon the Senate.

In that situation, the legal mind that was counselling both Senator Daschle and Senator Lott was Tom Griffith, the Senate's counsel who would sit down with the Republicans and describe to Senators the precedent, outline what the consequences would be if we did this, that, or the other. He would then sit down with the Democrats and do exactly the same thing from a standpoint of evenhandedness, fairness, great respect for the law, and through documentation and examination, thorough scholarship and research.

The Senate counsel who did all of those things and helped the Senate through, arguably, one of its most difficult times in the last 100 years, is the man now before the Senate to be a circuit judge.

I am very surprised people have such short memories. People who were complaining about Tom Griffith not being qualified for the circuit court bench, where were they when he was qualified and performing magnificently on their behalf as the counsel of this body? Have they no memory of the professionalism, the deep research, the evenhanded fairness that Tom Griffith showed on that occasion? Don't they remember how he served, regardless of party, the law, the precedent, and the institution?

We can talk about opinions. We can talk about papers written. We can talk about positions taken. All of these are important in deciding what we should do with respect to a circuit court judge. But I cannot think of any place where we could duplicate the crucible in which a potential judge's capabilities are tried that would approach the crucible through which Tom Griffith has come.

I intend to support him. I urge my colleagues to support him. He will make an outstanding circuit court judge.

I, ultimately, come to a very personal kind of test. If I were on trial for some very complicated situation, some very Byzantine kind of charge that required a great legal mind to cut through to the real issues, would I want that case to be tried before Tom Griffith sitting on the bench? My answer, as I have thought about it, is clearly, yes. If I were on trial, and I needed a judge who had the capacity to cut through all the extraneous matter and get to the heart and render an accurate decision, I would want Tom Griffith to be the judge in that kind of case.

I hope I am never on trial in a case that goes before the circuit court. But there are those who will be. There are those who will have that challenge and have that experience. The best thing I can do for them is to vote to put Tom Griffith on the court so he will be there to render that kind of service and that kind of expertise on their behalf.

I hope he is confirmed. I will vote for his confirmation. I urge all of my colleagues to do the same.

I suggest the absence of a quorum.

Mr. President, I have listened with great interest to the presentations that have been made on the floor and wish to be associated with the sentiments involved.

I come from a State that does not have a history of lynchings, but that does not mean I should be absolved from the concern that all Americans should have over the lynchings that have occurred. I note that it was the filibuster that made it possible for the Senate to be the body that blocked this legislation in the past. I would hope that in the future, we would all realize that the filibuster should be used for more beneficial purposes than that.

Mr. President, I ask unanimous consent that there now be a period of morning business with Senators permitted to speak for up to 10 minutes each.

Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 170, which was submitted early today.

Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. President, I ask unanimous consent that the Senate immediately proceed to executive session to consider Calendar No. 150, the nomination of Brian Montgomery to be an Assistant Secretary of Housing and Urban Development. I further ask unanimous consent that the nomination be confirmed, the motion to reconsider be laid upon the table, the President be immediately notified of the Senate's action, and the Senate then return to legislative session.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:45 a.m. on Tuesday, June 14; I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and that the Senate then return to executive session and resume consideration of the nomination of Thomas Griffith to be a U.S. circuit judge for the DC Circuit; provided that at 10 a.m., the Senate proceed to vote on the confirmation as provided under the previous order.

I further ask unanimous consent that the Senate recess from 12:30 p.m. until 2:15 p.m. for the Democratic Party luncheon.

Mr. President, tomorrow the Senate will resume consideration of the nomination of Thomas Griffith to be a circuit judge for the DC Circuit. At 10 a.m., the Senate will proceed to a vote on his confirmation. That will be the first vote of tomorrow's session. Following the confirmation vote, the Senate will begin consideration of the Energy bill. This bill was reported out of committee with strong bipartisan support. It is our hope that we can move this legislation forward in a timely manner. We will begin the amending process tomorrow and votes in relation to amendments are possible throughout the day tomorrow. At this time, I encourage those Senators who have amendments to contact the bill's managers so that they can establish an orderly schedule for their consideration.

Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order, as a mark of further respect for former Senator James Exon.

Mr. President, I am pleased to be able to re-introduce the Utah Recreational Land Exchange Act of 2005, together with my colleague Senator Hatch. Legislation was introduced in the previous Congress to lay the groundwork for our efforts in the 109th Congress.

This legislation will ensure the protection of critical lands along the Colorado River corridor in southeastern Utah and will help provide important funding for Utah's school children. In Utah we treasure the education of our children. A key component of our education system is the 3.5 million acres of school trust lands scattered throughout the State. These lands are dedicated to the support of public education. Revenue from Utah school trust lands, whether from grazing, forestry, surface leasing or mineral development, is placed in the State School Fund. This fund is a permanent income producing endowment created by Congress upon statehood to fund public education. Unfortunately, the majority of these lands are trapped within federal ownership patterns that make it impossible for responsible development. It is critical to both the State of Utah and the Bureau of Land Management, BLM, that we consolidate their respective lands to ensure that both public agencies are permitted to fulfill their mandates.

The legislation we are introducing today is yet another chapter in our State's long history of consolidating these State lands for the financial well being of our education system. These efforts serve a dual purpose as they help the Federal land management agencies to consolidate Federal lands in environmentally sensitive areas that can then be reasonably managed. We see this exchange as a win-win solution for the State of Utah and its school children, as well as the Department of the Interior as the caretaker of our public lands.

Beginning in 1998 Congress passed the first major Utah school trust land exchange which consolidated hundreds of thousands of acres. Again in 2000, Congress enacted an exchange consolidating another 100,000 acres. I was proud to playa role in those efforts, and the bill we are introducing today is yet another step in the longjoumey toward giving the school children the deal they were promised in 1896 when Utah was admitted to the Union.

The School Trust of Utah currently owns some of the most spectacular lands in America, located along the Colorado River in southeastern Utah. This legislation will ensure that places like Westwater Canyon of the Colorado River, the world famous Kokopelli and Slickrock biking trails, some of the largest natural rock arches in the United States, wilderness study areas, and viewsheds for Arches National Park will be traded into Federal ownership and for the benefit of future generations. At the same time, the school children of Utah will receive mineral and development lands that are not environmentally sensitive, in locations where responsible development makes sense. This will be an equal value exchange, with approximately 40,000 acres exchanged on either side, with both taxpayers and the school children of Utah receiving a fair deal. Moreover, the legislation establishes a valuation process that is transparent to the public, yet will ensure the exchange process occurs in a timely manner.

This legislation represents a truly collaborative process. We have convened all of the players to give us input into this legislation: local government, the State, the recreation community, the environmental community and other interested parties. At the same time we are working closely with the Department of Interior. We introduced this bill in the 108th Congress in order to initiate some discussion of moving forward with this exchange proposal. Since that time, some changes have been made in an effort to improve this legislation. We remain receptive to additional changes that might make further improvements. The State has been working with all of these groups over the past year at a grass-roots level to address concerns. We look forward to working with the appropriate committees and the Department of Interior toward a successful resolution of this proposed exchange.

I urge all of my colleagues to support our efforts to fund the education of our children in Utah and to protect some of this Nation's truly great lands. I urge support of the Utah Recreational Land Exchange Act of 2005.

Mr. President, I am pleased to be able to re-introduce the Utah Recreational Land Exchange Act of 2005, together with my colleague Senator Hatch. Legislation was introduced in the previous Congress to lay the groundwork for our efforts in the 109th Congress.

This legislation will ensure the protection of critical lands along the Colorado River corridor in southeastern Utah and will help provide important funding for Utah's school children. In Utah we treasure the education of our children. A key component of our education system is the 3.5 million acres of school trust lands scattered throughout the State. These lands are dedicated to the support of public education. Revenue from Utah school trust lands, whether from grazing, forestry, surface leasing or mineral development, is placed in the State School Fund. This fund is a permanent income producing endowment created by Congress upon statehood to fund public education. Unfortunately, the majority of these lands are trapped within federal ownership patterns that make it impossible for responsible development. It is critical to both the State of Utah and the Bureau of Land Management, BLM, that we consolidate their respective lands to ensure that both public agencies are permitted to fulfill their mandates.

The legislation we are introducing today is yet another chapter in our State's long history of consolidating these State lands for the financial well being of our education system. These efforts serve a dual purpose as they help the Federal land management agencies to consolidate Federal lands in environmentally sensitive areas that can then be reasonably managed. We see this exchange as a win-win solution for the State of Utah and its school children, as well as the Department of the Interior as the caretaker of our public lands.

Beginning in 1998 Congress passed the first major Utah school trust land exchange which consolidated hundreds of thousands of acres. Again in 2000, Congress enacted an exchange consolidating another 100,000 acres. I was proud to playa role in those efforts, and the bill we are introducing today is yet another step in the longjoumey toward giving the school children the deal they were promised in 1896 when Utah was admitted to the Union.

The School Trust of Utah currently owns some of the most spectacular lands in America, located along the Colorado River in southeastern Utah. This legislation will ensure that places like Westwater Canyon of the Colorado River, the world famous Kokopelli and Slickrock biking trails, some of the largest natural rock arches in the United States, wilderness study areas, and viewsheds for Arches National Park will be traded into Federal ownership and for the benefit of future generations. At the same time, the school children of Utah will receive mineral and development lands that are not environmentally sensitive, in locations where responsible development makes sense. This will be an equal value exchange, with approximately 40,000 acres exchanged on either side, with both taxpayers and the school children of Utah receiving a fair deal. Moreover, the legislation establishes a valuation process that is transparent to the public, yet will ensure the exchange process occurs in a timely manner.

This legislation represents a truly collaborative process. We have convened all of the players to give us input into this legislation: local government, the State, the recreation community, the environmental community and other interested parties. At the same time we are working closely with the Department of Interior. We introduced this bill in the 108th Congress in order to initiate some discussion of moving forward with this exchange proposal. Since that time, some changes have been made in an effort to improve this legislation. We remain receptive to additional changes that might make further improvements. The State has been working with all of these groups over the past year at a grass-roots level to address concerns. We look forward to working with the appropriate committees and the Department of Interior toward a successful resolution of this proposed exchange.

I urge all of my colleagues to support our efforts to fund the education of our children in Utah and to protect some of this Nation's truly great lands. I urge support of the Utah Recreational Land Exchange Act of 2005.

Mr. President, on May 23 of this year, Children's Hospice International celebrates its 22nd anniversary of helping children with life-threatening illnesses find comfort and care through hospice care programs around the country and the world.

Several members of this distinguished body, including former Senate Majority Leader Robert K. Dole of Kansas and former Senator Claiborne Pell of Rhode Island, were among the organization's early supporters because they recognized the need to provide comprehensive hospice care for children who are suffering from difficult medical conditions.

In 1977, when CHI was founded by Ann Armstrong-Dailey, there were no hospice care programs for children in the United States. In 1983, only four of 1,400 hospice programs in the United States were willing to accept children. Now, close to 450 of 3,000 U.S. hospices include child-specific services. And while that is good news, there is much more to be done.

Of the 10 million children in America who are living with a serious chronic

condition, each year about 54,000 will die; another 1.3 million will live but could greatly benefit from hospice and palliative care.

Historically, hospice reimbursement guidelines, in Medicaid and most private plans, have required that patients forego all life-saving care before they can be admitted to hospice. They have also required the patient to be within the last 6 months of life. However, this does not work with pediatric patients for whom aggressive treatment is sought and life-expectancy cannot be estimated.

Families should not be expected to give up on hope for a cure in order to receive that help. Because of the unpredictable course of many serious childhood illnesses, it is often very difficult for doctors to know when a child is within 6 months of death. Parents should not have to choose between hospice care and the hope for a cure. Parents should not have to keep their child in a hospital or other facility simply because insurance will not pay for the child to receive the same care, at a lower cost, at home.

The most critical time for children and family members is at the point of diagnosis--when they need the intensive support and guidance that hospice and palliative care programs can provide.

Since 1997, CHI has worked with the Centers for Medicare and Medicaid Services, CMS, to set up the Program for All-Inclusive Care for Children and their Families, CHI PACC. CHI PACC programs provide a continuum of care for children and their families from time of diagnosis, with hope for a cure, through bereavement, if needed.

With Congressional support, a total of 18 States are already benefiting from this initiative through CHI PACC programs in six States and two regions. States currently implementing CHI PACC are Colorado, Florida, Kentucky, New York, Virginia, and my home State of Utah, which will be among the first to implement this model.

Utah has been one of the leaders in this effort. Utah's Department of Health has spearheaded the effort in Utah, and the Primary Children's Medical Center in Salt Lake City, UT has been a central point of developing these pediatric palliative services to assist families from the point of diagnosis.

The New England Region is also preparing to implement CHI PACC to serve six States--Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont. The Colorado program extends to patients in six additional States--Kansas, Montana, Nebraska, New Mexico, South Dakota and Wyoming. In Pennsylvania, the Department of Defense is working to adopt the CHI PACC model for its health care system. The goal of all of these efforts is to prove the effectiveness of the CHI PACC model so that it can be adopted universally through Medicaid, S- SCHIP and private insurers.

As we approach Memorial Day, it should be noted that Children's Hospice International is a living memorial to Ensign Alan H. Armstrong and his shipmates lost aboard the U.S.S. Frank E. Evans during the conflict in Vietnam. Armstrong is the brother of CHI Founder Ann Armstrong-Dailey. I deeply appreciate Ensign Armstrong's service to our country.

I commend Children's Hospice International on its 22nd anniversary as it seeks to remove the roadblocks in private and public insurance programs that prevent these children and their families from receiving the care and support they need.

I too believe in the vision that Ann Armstrong-Dailey, along with original honorary board members Barbara Bush, and Senators Claiborne Pell and Robert Dole, put forth 22 years ago when they launched this very important effort to provide dignified care and support to children with life-threatening conditions and their families.

Mr. President, we turn on the television these days and get bombarded with advertisements saying: ``Write your Senator.'' ``Call your Senator and preserve the filibuster.'' ``Get ahold of your Senator and make sure this tool that provides rights and protections of the minority gets preserved.''

I have been associated with the Senate now since I was a 19-year-old intern sitting in the family gallery in the 1950s, falling in love with the debate that was going on, on the Senate floor. I must say there were usually more Senators here in the 1950s than there are now, but I understand, with television, the Senators stay in their offices and watch, and I am happy to accept that. But I understand the traditions of this body have great roots in history that many times get ignored. That is, these roots get ignored by people writing columns and stories today.

I want to go on record very firmly as being on the same side as those people who are buying the ads saying: ``Preserve the filibuster.'' I have watched the filibuster be used to help shape legislation. I watched the filibuster be used as a tool of compromise. I think the filibuster is a very worthwhile thing to hang on to in order to preserve the rights of the minority.

Now, that position of saying ``let's save the filibuster'' has not always been popular. If you go back 10 years ago, when a proposal was made on the Senate floor to abolish the filibuster, the New York Times editorialized in favor of that position. The New York Times told us

. . . the filibuster has become the tool of the sore loser.

The Times was anxious to have the whole thing wiped away. There were only 19 Senators who voted to abolish the filibuster, 9 of whom are still serving today. The rest of us all voted to preserve the filibuster. So I am on record as saying: We must preserve the filibuster. I value it. I believe it has a place in the Senate. However, I also believe we have the right to shape the filibuster, to focus the filibuster, to reform the filibuster, so it can be used in a more effective way.

There are those now who, when they say ``save the filibuster,'' mean ``save the filibuster the way we like it,'' not ``save the filibuster in its historic form, because its historic form has changed over the years.

The first point, as far as history is concerned, is this: The filibuster did not come into existence with the Constitution. I had a phone call over the weekend from a very dear friend who said: This is a constitutional issue that goes back all the way to the Founding Fathers. However, the filibuster, Rule XXII, came into the Senate history in 1917. That is a long time after the Founding Fathers. And it has been changed several times since that time, some times by formal Senate rule. It was changed in 1949. It was changed again in 1959. And it was changed again in 1975. So for those who run the ads saying ``save the filibuster,'' maybe the first question is, which filibuster do you have in mind that you want us to save?

But there is another aspect of the filibuster. I turn again to the New York Times. It is amazing how much they have changed their minds in the intervening 10 years. After the New York Times said the filibuster was a tool of the sore loser, now in this debate they decide that

. . . the filibuster [is] a time-honored Senate procedure . .

.

They editorialize: ``Keep it just the way it is.'' Well, I want to talk a little bit about time-honored Senate procedures, and particularly time-honored Senate procedures with respect to the filibuster. It is a time-honored Senate procedure that the filibuster can be changed by majority vote. There are a number of Senators who have served here and are still serving here who, at least at one time in their careers, agreed with that.

Senator Kennedy had this to say in 1975, when there was a debate on what kind of filibuster we could have and what the time-honored Senate procedures would say about the filibuster. Senator Kennedy said:

A majority may adopt the rules in the first place. It is

preposterous to assert they may deny future majorities the

right to change them.

Senator Kennedy was enunciating a time-honored Senate procedure that said a majority had the right to change the rules. This was in 1975.

Senator Mondale served in 1975. Senator Mondale had this to say about what was done in 1975. For those who are talking about time-honored Senate procedures, this was the Senate procedure 30 years ago. And for 30 years it has stood the test of time. Senator Mondale said:

. . . the President of the Senate . . . and the membership of

the Senate . . . have both clearly, unequivocally, and

unmistakably accepted and upheld the proposition that the

U.S. Senate may . . . establish its rules by majority vote,

uninhibited by rules adopted by previous Congresses.

Somehow this happened. Senator Mondale said it happened ``clearly, unequivocally, and unmistakably,'' and the place did not blow up. There were no threats to shut everything down, to object to every unanimous consent request, to cause a ``nuclear bomb'' to go off in this Chamber if this policy were to happen. This is a time-honored Senate procedure and it happened with both the membership of the Senate and the President of the Senate in 1975, according to Senator Mondale.

I picked Senator Mondale because in 1976 he was elected Vice President, which meant he became the Presiding Officer of the Senate. And something happened while he was the Presiding Officer of the Senate in this same time-honored Senate procedure.

The majority leader at the time was Senator Byrd of West Virginia. And he has described what happened while Vice President Mondale was presiding over this body. Here is what Senator Byrd had to say in 1995, as a bit of historic information for the rest of us who may not have been present back in the time when Mr. Mondale was the Vice President.

Senator Byrd explained:

I have seen filibusters. I have helped to break them. There

are few Senators in this body who were here when I broke the

filibuster on the natural gas bill. . . . I asked Mr.

Mondale, the Vice President, to go please sit in the chair; I

wanted to make some points of order and create some new

precedents that would break these filibusters.

Interesting choice of words, because that is what we are talking about here under the name ``nuclear option,'' making a point of order and setting a new precedent. Senator Byrd, the majority leader, asked Vice President Mondale to ``please sit in the chair,'' to be there when Senator Byrd made ``some points of order'' and created ``some new precedents'' to ``break these filibusters.'' He goes on to describe what happened:

And the filibuster was broken--back, neck, legs, and arms.

It went away in 12 hours.

So I know something about filibusters. I helped to set a

great many of the precedents that are in the books here.

A time-honored Senate procedure.

Senator Byrd did it again. Going ahead to 1980, Senator Byrd led 54 Senators, all but one of whom were Democrats, in overturning the Chair and eliminating all debate on motions to proceed to nominations. The point here is an important one. He did not abolish the filibuster. He did not say: Get rid of the filibuster. He did not abide by the advice of the New York Times that said it was a tool of sore losers. But he helped shape it. He helped focus it. He said the filibuster should not be quite as broad as it may have been in the past. And using the time- honored Senate procedure of making a point of order, and getting the Senate to vote, he helped shape it, and the Senate Democrats set this precedent before the Senate had even begun to debate the motion, so that the filibuster that used to apply to motions to proceed to nominations no longer does.

And how was the rule changed? It was changed by a time-honored Senate procedure.

Now, there is one other time-honored Senate procedure that Senator Leahy has spoken of. This goes to a floor statement Senator Leahy made in 1997, as he was talking about nominations for the Federal bench. Senator Leahy,

who at the time was the ranking minority member of the Judiciary Committee--he went on later to become the chairman--said:

I cannot recall a judicial nomination being successfully

filibustered.

I find that interesting because many of our Democratic friends are now saying: ``Oh, filibusters of judicial nominations are normal. They have happened before.'' Well, at least in 1997, Senator Leahy said:

I cannot recall a judicial nomination being successfully

filibustered. I do recall earlier this year when the

Republican chairman of the Judiciary Committee and I noted

how improper it would be to filibuster a judicial nomination.

I have the same recollection. I remember in our conference when the issue of filibustering some of President Clinton's judges came up, it was the Republican chairman of the Judiciary Committee, my senior colleague, Senator Hatch, who stood before the conference and said: ``Do not do it. It would be improper to filibuster a judicial nominee. Having judicial nominees get a vote is a time-honored Senate precedent.'' Senator Lott was the majority leader. He took the floor, after Senator Hatch had spoken, and said: ``Senator Hatch is right.'' We should not cross the line and start to filibuster judicial nominations because the Senate tradition has said no.

So that is where we are now. The Senate tradition has been changed. The Members of the minority have exercised their right, which has always been on the books, to change the precedent which had held for so long that even Senator Leahy could not recall an exception to it. What we are talking about doing now is using the time-honored Senate procedure of changing the rule by majority vote to see to it that the prior precedent remains--or, rather, returns because it was broken in the 108th Congress.

So I value the filibuster. I am in favor of the filibuster. But I think the filibuster has been and still can be shaped and changed so it is more focused than simply an across-the-board procedure.

I want to close by putting something of a human face on this whole issue because we are talking about this filibuster of judicial nominees almost as if the judicial nominees were not people, almost as if the judicial nominees were spectators in this activity. They are not spectators. They are seeing their reputations smeared. They are seeing their history attacked. It is time we spent a little time thinking about them.

I know the nomination on the floor is Priscilla Owen, but over the weekend I had called to my attention an article that appeared in the Sacramento Bee by one Ginger Rutland that I would like to close with. It is entitled: ``Worrying about the right things.'' Ginger Rutland identifies herself as ``a journalist of generally liberal leanings,'' and she talks about the nomination of Janice Rogers Brown.

Both Ms. Rutland and Ms. Brown live in California. Ms. Rutland says:

I've been trying to get a fix on Brown since President Bush

nominated her for the influential U.S. Circuit Court of

Appeals for the District of Columbia.

It talks about the experience. And then she makes this comment:

Championed by conservatives, Brown terrifies my liberal

friends. They worry she will end up on the U.S. Supreme

Court. I don't. I find myself rooting for Brown. I hope she

survives the storm and eventually becomes the first black

woman on the nation's highest court. I want her there because

I believe she worries about the things that most worry me

about our justice system: bigotry, unequal treatment and laws

and police practices that discriminate against people who are

black and brown and weak and poor.

She was born and raised poor, a sharecropper's daughter in

segregated Alabama. She was a single mother for a time,

raising a black child, a male child. I don't think you can

raise a black man in this country without being sensitive to

the issues of discrimination and police harassment.

She goes on in the article. I ask unanimous consent that the entire article be printed in the Record at the conclusion of my remarks.

She concludes with this comment:

I don't pretend to know how Brown will rule on other

important issues likely to reach the Federal courts. I only

know that I want judges on those courts who will defend the

rights of the poor and the disenfranchised in our country.

She believes Janice Rogers Brown is one of those jurists.

I am not sure whether she is right or wrong. But I do know Janice Rogers Brown deserves the opportunity to have her nomination voted on. And if one use of the filibuster has been to prevent Priscilla Owen and Janice Rogers Brown and others like them from getting this vote, a time-honored procedure of the Senate can be used with equal justification to see to it that the filibuster gets tweaked a little bit to make sure we go back to the practice that existed here for decades.

For that reason, I will support the motion of the majority leader if it becomes necessary to make sure that we have an opportunity to a vote on Priscilla Owen. I hope as a result of this debate, our friends on the Democratic side of the aisle will step back a little from their position of saying no to a vote on Priscilla Owen and allow us to have a vote. If they do, they are acting in accordance with the history of the Senate for past decades, the history of the Senate going back so far that even Patrick Leahy cannot remember an exception to it. If they do and we have an up-or-down vote on Priscilla Owen, it may well be that all of this talk about changing the rules will go away.

The outcome lies in their hands. If they allow us to vote on Priscilla Owen, we will not have the lack of civility, the shutting down of the Senate, the collapse of Government, all of the other things that have been predicted. If, on the other hand, they say no, we will not allow this woman who has been unanimously rated as well qualified by the American Bar Association to even get a vote, then we will see the majority leader follow the practice, follow the precedent, follow the example set by Senator Byrd, the example endorsed by Senator Kennedy, endorsed by Senator Mondale, and use the time-honored Senate procedure to change the rule by majority vote. If the majority leader so moves, I will support it.

Exhibit 1

[May 8, 2005]

Ginger Rutland: Worrying About the Right Things

(By Ginger Rutland)

I know Janice Rogers Brown, and she knows me, but we're not

friends. The associate justice of the California Supreme

Court has never been to my house, and I've never been to

hers. Ours is a wary relationship, one that befits a

journalist of generally liberal leanings and a public

official with a hard-right reputation fiercely targeted by

the left.

I've been trying to get a fix on Brown since President Bush

nominated her for the influential U.S. Circuit Court of

Appeals for the District of Columbia. She won't talk to the

press. Friends, associates, even a former teacher, say the

same things about her: She's ``brilliant,'' ``hardworking,''

``stoic'' and ``kind.''

Her opponents on the left tell me she's a fundamentalist

Christian who will bring her religious values into the

courtroom. But I've never been frightened by people of faith.

Brown is Church of Christ. So is my mother-in-law, a good,

gentle woman and lifelong Democrat who voted for John Kerry

for president and opposed the war in Iraq because, as she

told me when it started, ``I've never understood how killin'

other folks' children ever solved anything.''

I'm almost embarrassed to admit it, but desperate for

deeper insight, I visited Brown's church last Sunday, the

Cordova Church of Christ. The judge wasn't there, but her

mother, Doris Holland, was. She was polite but understandably

guarded. She told me that as a young girl Brown liked to read

and had an imaginary friend; that was about it.

The congregation is integrated and friendly. Church members

know Brown and her husband, jazz musician Dewey Parker, and

like them. The church itself is conservative, allowing no

instrumental music in its services, no robes, no bishops or

hierarchy of any kind. The religious right may have taken up

Brown's cause in Congress, but the sermon at Cordova that day

contained no political content.

Championed by conservatives, Brown terrifies my liberal

friends. They worry she will end up on the U.S. Supreme

Court. I don't.

I find myself rooting for Brown. I hope she survives the

storm and eventually becomes the first black woman on the

nation's highest court.

I want her there because I believe she worries about the

things that most worry me about our justice system: bigotry,

unequal treatment and laws and police practices that

discriminate against people who are black and brown and weak

and poor.

She was born and raised poor, a sharecropper's daughter in

segregated Alabama. She was a single mother for a time,

raising a black child, a male child. I don't think you can

raise a black man in this country without being sensitive to

the issues of discrimination and police harassment.

And yes I know. People said that Clarence Thomas would be

sensitive to those issues, too, and he's been a

disappointment.

But in Brown's case, I have something more concrete on

which to base my hopes--her passionate dissent in People v.

Conrad Richard McKay.

The case outlines a single, unremarkable instance of police

harassment, the kind of petty tyranny that plays out on the

streets of big cities and small towns across America every

day.

In 1999 a Los Angeles sheriff's deputy stopped Conrad

Richard McKay for riding his bicycle in the wrong direction

on a residential street, a minor traffic infraction. The

deputy asked McKay for a driver's license. McKay had none.

Instead, he provided his name, address and date of birth.

The officer arrested him for failing to have a driver's

license. Then he searched him, finding a baggie of what

turned out to be methamphetamine in his left sock. McKay was

charged with illegal drug possession, convicted and sentenced

to 32 months in prison.

He appealed, arguing that the arrest and the search were

unreasonable, a violation of his Fourth Amendment rights to

be protected from unreasonable searches. The officer searched

him, he said, because he didn't have a driver's license, a

document he was not required to carry to ride a bicycle.

Six members of the California Supreme Court rejected that

argument, ruling that McKay's arrest was within the officer's

discretion and therefore constitutional.

Brown was the lone dissenter. What she wrote should give

pause to all my friends who dismiss her as an arch

conservative bent on rolling back constitutional rights. In

the circumstances surrounding McKay's arrest, the only black

judge on the state's high court saw an obvious and grave

injustice that her fellow jurists did not.

``Mr. McKay was sentenced to a prison term for the trivial

public offense of riding a bicycle the wrong way on a

residential street,'' Brown wrote.

``Anecdotal evidence and empirical studies confirm that

what most people suspect and what many people of color know

from experience is a reality: There is an undeniable

correlation between law enforcement stop-and-search practices

and the racial characteristics of the driver. . . . The

practice is so prevalent, it has a name: `Driving while

Black.' ''

After a scholarly discussion on the origin of the Fourth

Amendment and an exhaustive review of the case law on

unlawful searches, Brown used plain words to get to the heart

of what really bothered her about what happened to Conrad

McKay on that Los Angeles street. It's what bothers me, too.

``I do not know McKay's ethnic background. One thing I

would bet on: He was not riding his bike a few doors down

from his home in Bel Air, or Brentwood, or Rancho Palos

Verdes--places where no resident would be arrested for riding

the `wrong way' on a bicycle whether he had his driver's

license or not. Well . . . it would not get anyone arrested

unless he looked like he did not belong in the neighborhood.

That is the problem. And it matters. . . . If we are

committed to a rule of law that applies equally to

`minorities as well as majorities, to the poor as well as

the rich,' we cannot countenance standards that permit and

encourage discriminatory enforcement.''

In her dissent, Brown even lashed out at the U.S. Supreme

Court and--pay close attention, my liberal friends--

criticized an opinion written by its most conservative

member, Justice Antonin Scalia, for allowing police to use

traffic stops to obliterate the expectation of privacy the

Fourth Amendment bestows.

``Due to the widespread violation of minor traffic laws, an

officer's discretion is still as wide as the driving

population is large,'' she wrote. In her view, court

decisions have freed police to search beyond reason not just

drivers of cars but ``those who walk, bicycle, rollerblade,

skateboard or propel a scooter.''

She reserved special scorn for judges who permit police to

discriminate while advising the targets of discrimination to

sue to challenge their oppressors. ``Such a suggestion

overlooks the fact that most victims . . . will barely have

enough money to pay the traffic citation, much less be able

to afford an attorney. . . . To dismiss people who have

suffered real constitutional harms with remedies that are

illusory or nonexistent allows courts to be complacent about

bigotry while claiming compassion for its victims,'' she

wrote.

``Judges go along with questionable police conduct,

proclaiming that their hands are tied. If our hands really

are tied, it behooves us to gnaw through the ropes.''

With that last pronouncement, Brown confirms what many of

her enemies have said--that she's an ``activist judge.''

Judges who ``gnaw through ropes'' to protect people being

hassled by cops represent the kind of judicial activism I can

support.

Liberals prefer to overlook Brown's strong dissent in

McKay. Conservatives mention it only in passing, as if

embarrassed that one of their own might have qualms about law

enforcement bias or a creeping police state.

I don't pretend to know how Brown will rule on other

important issues likely to reach the federal courts. I only

know that I want judges on those Courts who will defend the

rights of the poor and the disenfranchised in our country

against the rich and the powerful when the rich and the

powerful are wrong. I want someone who will defend people

like Conrad McKay.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, today we will have a period for morning business to permit Senators to make statements. As announced by the majority leader last night, there will be no rollcall votes during today's session. We hope to begin consideration of the highway bill next week. The majority leader will have more to say on that later. Perhaps we will have information on that schedule by the close of business today.

As a further reminder, there will be no rollcall votes on Monday, which is April 25. On behalf of the leadership, I thank Senator Cochran for his work on the emergency supplemental appropriations bill, which we passed yesterday by a vote of 99 to 0. We will shortly proceed to a conference in order to produce a final product that will be sent to the President.

I thank everyone for their attention this morning, and I yield the floor.

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

Mr. President, I ask unanimous consent that I be allowed to continue in morning business for 20 minutes.