S5828 CONGRESSIONAL RECORD — SENATE May 24, 2005 I have a very short story. I had a his or her conscience up or down, yes Feinstein Lieberman Santorum Frist Lott Schumer brother who was 10 years older than I. or no, confirmed or rejected. It is as Graham Lugar Sessions One day he came down from the drug- simple as that. It is about principle. It Grassley Martinez Shelby store to the junkyard where I worked. is about fairness. It is about our con- Gregg McCain Smith (OR) He said: Arlen, I was just at Russell stitutional duty to give advice and con- Hagel McConnell Snowe Harkin Mikulski Specter Drug. Down there they were saying you sent. Hatch Murkowski Stevens weren’t fit to eat with the pigs. But my Mr. President, I yield the floor. Hutchison Nelson (FL) Sununu Inhofe Nelson (NE) Talent brother said: I stuck up for you, Arlen. CLOTURE MOTION Isakson Obama Thomas I said you were. So when I see Alfonse The PRESIDING OFFICER. Under Johnson Pryor Thune D’Amato on the Senate floor, I remem- the previous order, the hour of 12 Kohl Reid Vitter ber those good times. o’clock having arrived, pursuant to Kyl Roberts Voinovich Now I yield to the distinguished ma- Landrieu Rockefeller Warner rule XXII, the Chair lays before the Leahy Salazar Wyden jority leader, whose time I hope I have Senate the pending cloture motion, not unduly encroached upon. I thank which the clerk will report. NAYS—18 the Chair and yield the floor. The legislative clerk read as follows: Biden Dorgan Levin The PRESIDING OFFICER. The ma- Boxer Feingold Lincoln CLOTURE MOTION Cantwell Jeffords Murray jority leader. Corzine Kennedy Reed Mr. FRIST. Mr. President, in a few We the undersigned Senators, in accord- ance with the provisions of rule XXII of the Dayton Kerry Sarbanes moments, we will vote to conclude de- Dodd Lautenberg Stabenow Standing Rules of the Senate, do hereby bate on the nomination of Judge Pris- move to bring to a close debate on Executive NOT VOTING—1 cilla Owen to the Fifth Circuit Court of Calendar No. 71, the nomination of Priscilla Inouye Appeals. It has been over 4 years since Owen, of Texas, to be United States Circuit the Senate began consideration of Jus- Judge for the Fifth Circuit. The PRESIDING OFFICER. On this tice Owen for this position, and the Bill Frist, Arlen Specter, Trent Lott, vote, the yeas are 81, the nays are 18. Senate over that time has thoroughly Lamar Alexander, Jon Kyl, Jim Talent, Three-fifths of the Senators duly cho- and exhaustively investigated, looked Wayne Allard, Richard G. Lugar, John sen and sworn having voted in the af- at, examined, and debated Judge Ensign, C.S. Bond, Norm Coleman, firmative, the motion is agreed to. Saxby Chambliss, James Inhofe, Mel Owen’s nomination. Martinez, Jim DeMint, George Allen, f She has endured 9 hours of com- Kay Bailey Hutchison, John Cornyn. mittee hearings, more than 500 ques- The PRESIDING OFFICER. By unan- RECESS tions, and 22 days—it is interesting, 22 imous consent, the mandatory quorum days. That is more than all sitting Su- The PRESIDING OFFICER. Under call has been waived. preme Court Justices combined have the previous order, the hour of 12:30 The question is, Is it the sense of the had on the floor of the Senate—all sit- having arrived, the Senate will stand Senate that debate on the nomination ting Supreme Court Justices combined. in recess until the hour of 2:15 p.m. of Priscilla Richman Owen, of Texas, to We have had Priscilla Owen’s nomina- Thereupon, the Senate, at 12:30 p.m., be United States Circuit Judge for the tion debated on this floor for more recessed until 2:15 p.m. and reassem- Fifth Circuit Court of Appeals, shall be days. There has been more than 100 bled when called to order by the Pre- brought to a close? Under the rule, the hours of floor debate. Now finally, after siding Officer (Mr. VOINOVICH). yeas and nays are mandatory. The more than 4 years of waiting, Judge The PRESIDING OFFICER. The Sen- clerk will call the roll. Owen will receive a fair up-or-down ator from Colorado. Mr. LEVIN. Parliamentary inquiry. vote on the floor of the Senate. Mr. SALAZAR. Mr. President, I sug- As her critics now appear to be con- The PRESIDING OFFICER. The Sen- gest the absence of a quorum. cede, Judge Owen is a mainstream can- ator from Michigan. The PRESIDING OFFICER. The didate, who is thoughtful, who is dig- Mr. LEVIN. Under the rules and clerk will call the roll. nified, and imminently qualified. Her precedents of the Senate, how many The assistant legislative clerk pro- academic and professional qualifica- votes are required to invoke cloture ceeded to call the roll. tions are outstanding. The American and end debate on the pending nomina- Mr. BYRD. Mr. President, I ask unan- Bar Association unanimously—unani- tion? imous consent that the order for the mously—rated her as well qualified, its The PRESIDING OFFICER. Three- quorum call be rescinded. highest possible rating. She was re- fifths of the Senators duly chosen and The PRESIDING OFFICER. Without elected to the Texas Supreme Court sworn. objection, it is so ordered. with 84 percent of the vote. She is sup- The clerk will call the roll. f ported by Republicans and Democrats Mr. LEVIN. Is there an answer to my on the Texas Supreme Court. She has parliamentary inquiry? The PRESIDING OFFICER. The NOMINATION OF PRISCILLA been endorsed by every major news- RICHMAN OWEN TO BE UNITED paper in her State of Texas. clerk will call the roll. The assistant legislative clerk called STATES CIRCUIT JUDGE FOR Moreover, in the face of continuous, THE FIFTH CIRCUIT—Continued sometimes vicious, attacks and distor- the roll. tions of her record in the nominations Mr. DURKIN. I announce that the The PRESIDING OFFICER. The Sen- process, Judge Owen has shown ex- Senator from Hawaii (Mr. INOUYE) is ator from West Virginia. traordinary patience with this body. necessarily absent. Mr. BYRD. Mr. President, I read from Despite 4 years of attacks on her integ- The PRESIDING OFFICER (Mr. the King James version of the Holy rity, Priscilla Owen has quietly, has BURR). Are there any other Senators in Bible, from the 22nd chapter of Prov- patiently, has gracefully waited for an the Chamber desiring to vote? erbs, the 28th verse: up-or-down vote. The yeas and nays resulted—yeas 81, Remove not the ancient landmark, which Priscilla Owen has worked hard, nays 18, as follows: thy fathers have set. played by the rules, faithfully inter- [Rollcall Vote No. 127 Ex.] Mr. President, in his second inau- preted the law and gained the respect YEAS—81 gural address, Abraham Lincoln ob- of her colleagues and constituents. We Akaka Burns Conrad served that: cannot ask for more from a judicial Alexander Burr Cornyn With malice toward none; with charity for nominee. It is time to close our debate. Allard Byrd Craig all; with firmness in the right, as God give us Allen Carper Crapo It is time to give Justice Owen an up- Baucus Chafee DeMint to see the right, let us strive on to finish the or-down vote on the floor of the Sen- Bayh Chambliss DeWine work we are in; to bind up the nation’s ate. Bennett Clinton Dole wounds. . . . Today’s vote will allow that up-or- Bingaman Coburn Domenici Mr. President, I have always believed Bond Cochran Durbin down vote. It will affirm each Sen- Brownback Coleman Ensign that the Senate, by its nature, attracts ator’s right to weigh the facts and vote Bunning Collins Enzi and probably also creates men and

VerDate Aug 04 2004 02:34 May 25, 2005 Jkt 039060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G24MY6.025 S24PT1 May 24, 2005 CONGRESSIONAL RECORD — SENATE S5829 women of the quality and character vice, but here it is. And by considering monster called Death. They came upon who are able to step up when faced that advice, it only stands to reason an old man and seized him, and with with crises that threaten the ship of that any President will be more as- rough language they demanded that he state, to calm the dangerous seas sured that his nominees will enjoy a tell them where they could find this which, from time to time, threaten to kinder reception in the Senate. cowardly adversary who was taking the dash our Republic against rocky shoals The agreement, which references the lives of their good friends around the and jagged shores. need for ‘‘advice and consent,’’ as con- countryside. The Senate proved it to be true again tained in the Constitution, proves once The old man pointed to a great oak yesterday, when 14 Members—from again, as has been true for over 200 tree on a nearby knoll, saying, ‘‘There, both sides of the aisle, Republicans and years, that our revered Constitution is under that tree you will find Death,’’ Democrats; 14 Members—of this re- not simply a dry piece of parchment. It that monster. In a drunken rage, the vered institution came together to is a living document. three roisterers set off in a run until avert the disaster referred to as the Yesterday’s agreement was a real-life they came to the tree, and there they ‘‘nuclear option’’ or the ‘‘constitu- illustration of how this historical docu- found a pile of gold—eight basketfuls tional option’’—these men and women ment continues to be vital in our daily of florins, newly minted, round, gold of great courage. lives. It inspires, it teaches, and yester- coins. Forgotten was the monster As William Gladstone said, in refer- day it helped the country and the Sen- called Death, as the three pondered ring to the Senate of the United ate avoid a serious catastrophe. their good fortune. And they decided States, the Senate is Mr. President, for this reason and that they should remain with the gold that remarkable body, the most remarkable others, I ask that at the end of my re- until nightfall, when they would divide of all the inventions of modern politics. marks the agreement reached by the 14 it among themselves and take it to I thank all of those Republicans and Senators be printed in the RECORD. their respective homes. It would be un- Democrats who worked together to The PRESIDING OFFICER. Without safe, they reasoned, to attempt to do so keep faith with the Framers and the objection, it is so ordered. in broad daylight, as they might be Founding Fathers. We have kept the (See exhibit 1.) fallen upon by thieves who would take faith with those whose collective vision Mr. BYRD. Mr. President, I do this so their treasure from them. gave us this marvelous piece of work, that we in the Senate and the Presi- It was proposed that the three draw the Constitution of the United States. dent may all have a way of easily revis- straws, and the person who drew the Thank God—thank God—that this iting the text of that agreement for fu- shortest straw would go into the near- work has been done and that it has ture reference. by village and purchase some bread and been preserved, that a catastrophe has On the heels of this agreement, I be- wine and cheese, which they could then been averted. lieve that we should now move forward, enjoy as they whiled away the daylight Article II, section 2, of the Constitu- propelled by its positive energy, in a hours. So off toward the village the tion gives to the President the power new direction. We should make every young man who drew the shortest to nominate, and ‘‘by and with the Ad- effort to restore reason to the politi- straw went. When he was out of sight, vice and Consent of the Senate,’’ to cally partisan fervor that has over- the remaining two decided that there ‘‘appoint . . . Judges of the supreme taken our Senate, this city, and our was no good reason why this fortune, Court, and all other Officers of the country. We must stop arguing and this pile of gold, should be divided United States. . . .’’ start legislating. among three individuals. So one of There are two parts to that phrase: Divisive political agendas are not them said to the other, ‘‘When he re- the ‘‘advice’’ on the one hand, and the America’s goals. The right course lies turns, you throw your arm around him ‘‘consent’’ on the other, and both must someplace in the middle. It is our job as if in good sport, as in jest, and I will be present before any President can ap- to work as elected representatives of a rive him with my dagger, and with point any nominee to the Supreme reasonable people to do what is right, your dagger, you can do the same. Court or any other Federal court. It is, regardless of threats from any of the Then all of this gold will be divided not therefore, a shared responsibility be- angry groups that seem dedicated to among three of us but just between two tween the U.S. Senate and the Presi- intimidation. The skeptics, the cynics, of us—you and me.’’ dent of the United States. the doubters, the Pharisees, those who Meanwhile, while the two were plan- By its agreement yesterday, the Sen- are intoxicated by the juice of sour ning the demise of the third, the ate is keeping that construct alive, grapes did not prevail and must not youngest rogue, as he made his way this shared responsibility between the prevail. The 14 Republican and Demo- into the town, thought to himself what President of the United States, on the cratic Senators rose above those who a shame it would be that the gold one hand, and the Senate of the United do not wish to see accord but prefer would be divided among three, when it States, on the other. discord. just as well could be so easily belong The agreement that was obtained Chaucer’s ‘‘Canterbury Tales’’—we only to the ownership of one, himself. yesterday by the cooperation between have all read Chaucer’s ‘‘Canterbury Therefore, in town the young man went and among the 14 Members of the Sen- Tales’’ in high school—contains ‘‘The directly to an apothecary and asked to ate—representing Republicans and Pardoner’s Tale.’’ be sold some poison for the large rats Democrats—it was that agreement The story tells about the journey by and a polecat that had been killing his that reminds us of the words of our the pilgrims to Canterbury, to the chickens. The apothecary—the phar- Constitution, by encouraging the shrine of Canterbury. The scene took macist—quickly provided some poison, President of the United States, on the place in Flanders, where once there sat saying that as much as equaled only a one hand, to consult with the Senate of drinking in a tavern three young men tiny grain of wheat would result imme- the United States, on the other. In who were much given to folly. As they diately in sudden death for the crea- other words, the Senate will be in on sat, they heard a small bell clink be- ture that drank the mixture. the takeoff, meaning prior to sending fore a corpse that was being carried to Having purchased the poison, the up his nominees for our consideration. the grave. Whereupon, one of the three young villain crossed the street to a In recent times—and by that I mean called to his knave and ordered him to winery, where he purchased three bot- under Presidents of both parties—there go and find out the name of the corpse tles—two for his friends, one for him- has not been all that much consulta- that was passing by. self. After he left the village, he sat tion by the President with the Senate. The boy answered that he already down, opened two bottles of wine and So here we are, in the Senate, offer- knew and that it was an old comrade of deposited an equal portion in each, and ing the hand of partnership to the the roisterers who had been slain, then returned to the oak tree, where Chief Executive and saying: Consult while drunk, by an unseen thief called the two older villains did as they had with us. That is what the Framers in- ‘‘Death,’’ who had slain others in re- planned. One threw his arm, as if in tended, that the President of the cent days. jest, around the shoulders of the third, United States should consult with the And so out into the road the three and both buried their daggers in him. Senate. You don’t have to take our ad- young ruffians went in search of this He fell dead on the pile of gold. The

VerDate Aug 04 2004 02:34 May 25, 2005 Jkt 039060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G24MY6.029 S24PT1 S5830 CONGRESSIONAL RECORD — SENATE May 24, 2005 other two villains then sat down, broke who established checks and balances in Benjamin Hill, a great Senator, a great the bread, cut the cheese, and opened this Constitution of the United States. orator from the State of Georgia, his the two bottles of wine. Each took a The work of those Framers and the words being inscribed on a statue in good, deep swallow, and then, suffering work of the larger group of Founders Atlanta, GA, as they are and as they a most excruciating pain, both fell took 219 years. It was about to be de- appear today upon that monument: dead upon the pile of gold and upon the stroyed in a single day, this day. But Who saves his country saves himself, saves body of the third. So there they were thank God 14 Senators from both sides all things, and all things saved do bless him. across the pile of gold, all three of of the aisle met and rose above par- Who let’s his country die dies himself igno- them dead. tisan politics and kept the faith with bly, and all things dying curse him. Their avarice, their greed for gain, the Framers and with the Founders so Remember that ancient proverb: Re- their love of material things had de- that our posterity might enjoy the move not the ancient landmark, which stroyed them. There is a lesson here in blessings of liberty, the blessings of thy fathers have set. Chaucer’s Tales, as given to us by ‘‘The freedom of speech, the roots of which I yield the floor. I suggest the ab- Pardoner.’’ The strong temptation for go all the way back to the reign of sence of a quorum. political partisanship that has pre- Henry IV, who reigned from 1399 to 1413 EXHIBIT 1 vailed in the Senate can tear this Sen- and who in 1407 proclaimed that the MEMORANDUM OF UNDERSTANDING ON JUDICIAL ate apart and can tear the Nation apart members of Parliament—the House of NOMINATIONS and confront all of us with destruction, Lords and the House of Commons— We respect the diligent, conscientious ef- so that in the end we three—the Presi- could speak freely and without fear. forts, to date, rendered to the Senate by Ma- dent, the Senate, and the people—will And those words were written into jority Leader Frist and Democratic Leader all be destroyed, as it were. the Declaration of Rights, which dec- Reid. This memorandum confirms an under- So we almost saw that happen here laration was submitted to William III standing among the signatories, based upon on the Senate floor—until yesterday, of Orange and Mary, a Declaration of mutual trust and confidence, related to when that catastrophe, looming as it Rights which included freedom of pending and future judicial nominations in the 109th Congress. was before the Senate, was averted. I speech in Parliament. That declaration This memorandum is in two parts. Part I applaud the fact that the center, the was presented on February 13, 1689, to relates to the currently pending judicial anchor, held, and we stood together for William III and Mary. They both ac- nominations; Part II relates to subsequent the good of the country against mean- cepted it and were then proclaimed by individual nominations to be made by the spirited, shallow, political ends. the House of Commons joint sovereigns President and to be acted upon by the Sen- Mr. President, I implore all of us to of the nation. ate’s Judiciary Committee. endeavor to lift our eyes to the higher Then, on December 18, 1689, those We have agreed to the following: things. We can perform some much words were included in a statute, the PART I: COMMITMENTS ON PENDING JUDICIAL needed healing on the body politic. If English Bill of Rights—freedom of NOMINATIONS we can come together in a dignified speech, the roots going back a long A. Votes for Certain Nominees. We will way to orderly and expeditiously move way. That freedom of speech then was vote to invoke cloture on the following judi- cial nominees: Janice Rogers Brown (D.C. forward on these nominations, perhaps provided to those of us in the Senate, provided by the Constitution, and since Circuit), William Pryor (11th Circuit), and we can yet salvage a bit of respect and Priscilla Owen (5th Circuit). trust from the American people for all 1806, when the provision for the pre- B. Status of Other Nominees. Signatories of us, for the Senate, and for our insti- vious question was discarded upon the make no commitment to vote for or against tutions of free government. recommendation of Vice President cloture on the following judicial nominees: We have a duty, at this critical time, Aaron Burr, since 1806 that provision William Myers (9th Circuit) and Henry Saad to rise above politics as usual, in which for the previous question or the sudden (6th Circuit). we savage one another, and in so doing, cutting off debate was discarded. Since PART II: COMMITMENTS FOR FUTURE destroy ourselves, like the three vil- 1806, until the year 1917, the year in NOMINATIONS lains in ‘‘The Pardoner’s Tale.’’ which I was born during the adminis- A. Future Nominations. Signatories will Let us put the Nation first. The tration of Woodrow Wilson, that free- exercise their responsibilities under the Ad- American people want us to do that. In dom of speech has prevailed in the Sen- vice and Consent Clause of the United States the long run, that is how we will be ate, and it has lived since then except Constitution in good faith. Nominees should only be filibustered under extraordinary cir- judged and, more importantly, it is for unanimous consent agreements and cumstances, and each signatory must use his how the Senate will be judged. the cloture provision which was first or her own discretion and judgment in deter- It is easy to tear down; it is difficult agreed to in 1917, the cloture provision mining whether such circumstances exist. to build. shutting off debate under the rules of B. Rules Changes. In light of the spirit and I saw them tearing a building down, the Senate. continuing commitments made in this agree- A group of men in a busy town. Freedom of speech has reigned in this ment, we commit to oppose the rules With a ‘‘Ho, Heave, Ho and a lusty yell, body, and it still lives, thanks again to changes in the 109th Congress, which we un- They swung a beam and the sidewall fell. the 14 Republicans and Democrats who derstand to be any amendment to or inter- pretation of the Rules of the Senate that I said to the foreman, ‘‘Are these men rose above politics yesterday and came would force a vote on a judicial nomination skilled? forward with this accord. by means other than unanimous consent or The type you would hire if you had to build.’’ So, Mr. President, let us be true to Rule XXII. He laughed, and then he said, ‘‘No indeed, the faith of our fathers and to the ex- We believe that, under Article II, Section Just common labor is all I need; pectation of those who founded this Re- 2, of the United States Constitution, the I can easily erect in a day or two, word ‘‘Advice’’ speaks to consultation be- That which takes builders years to do.’’ public. The coming days will test us again and again, but let us go forward tween the Senate and the President with re- I said to myself as I walked away, gard to the use of the President’s power to ‘‘Which of these roles am I trying to play? together hoping that in the end, the Senate will be perceived as having make nominations. We encourage the Execu- Am I a builder who works with care, tive branch of government to consult with Building my life by the rule and square? stood the test, and may we, both Re- members of the Senate, both Democratic and Am I shaping my deeds by well-laid plan, publicans and Democrats and Independ- Republican, prior to submitting a judicial Patiently building the best I can? ents, when our work is done, be judged nomination to the Senate for consideration. Or am I a wrecker who walks the town by the American people and by the Such a return to the early practices of our Content with the labor of tearing down.’’ pages of history as having done our government may well serve to reduce the Mr. President, it is easy to tear duty and as having done it well. rancor that unfortunately accompanies the down, but it takes a long time to build. Our supreme duty is not to any par- advice and consent process in the Senate. We have been 217 years in building this ticular person, not to any particular We firmly believe this agreement is con- Senate, making it what it was intended President, not to any political party, sistent with the traditions of the United States Senate that we as Senators seek to to be by the Framers who wrote it 219 but to the Constitution, to the people uphold. years ago, who established three equal of the Nation, and to the future of this E. Benjamin Nelson, Mike DeWine, Joe coordinate branches of Government, Republic. It is in that spirit that we Lieberman, Susan Collins, Mark Pryor, who established a separation of powers, may do well to remember the words of Lindsey Graham, Lincoln Chafee, John

VerDate Aug 04 2004 02:34 May 25, 2005 Jkt 039060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G24MY6.031 S24PT1 May 24, 2005 CONGRESSIONAL RECORD — SENATE S5831 McCain, John Warner, Robert C. Byrd, He left the Active component and supporting a robust teaching program. Mary Landrieu, Olympia Snowe, Ken served in the U.S. Army Reserve from He taught more than 15 different Salazar, and Daniel Inouye. 1972 to 1980. During this period, he courses, created 4 new ones, published 3 The PRESIDING OFFICER (Mr. served as an overseas manager, Amer- books and 15 articles, and encouraged CORNYN). The clerk will call the roll. ican International Underwriters Mel- and cultivated resources for other fac- The bill clerk proceeded to call the bourne, Australia, and China tour man- ulty to follow his example. roll. His support for faculty and cadet de- Mr. REED. Mr. President, I ask unan- ager and Canadian Pacific Airlines. He was recalled to active duty in 1980 velopment through the scholarship, de- imous consent that the order for the and served initially in Korea as an in- bate, model U.N., domestic affairs quorum call be rescinded. forum, finance forum, sports, and a The PRESIDING OFFICER (Mr. MAR- fantry company commander. Subse- myriad of other activities was excep- TINEZ). Without objection, it is so or- quent assignments included classified tional. Most importantly, he is a trust- dered. project officer, U.S. Army 1st Special Mr. REED. Mr. President, I ask unan- Operations Command at Fort Bragg, ed, caring, concerned, and dedicated leader who evokes the best from every- imous consent to speak as in morning and operations officer and company body with whom he comes in contact. business. commander 1st Battalion, 1st Special It has been my privilege to know The PRESIDING OFFICER. Without Forces Group in Okinawa, Japan. Colonel Howard for many years, to re- objection, it is so ordered. Colonel Howard earned a bachelor of Mr. REED. Mr. President, I also ask science degree in industrial manage- spect him as a soldier and a scholar, unanimous consent that the time I ment from San Jose State University, and to at this moment congratulate consume come out of my time bachelor of arts degree in Asian studies him on a career of exceptional service to the Army and to the Nation. As he postcloture. from the University of Maryland, a The PRESIDING OFFICER. Without master of arts degree in international parts for other venues and other re- objection, it is so ordered. management from the Monterey Insti- sponsibilities, I wish him well. tute of International Studies, and a I yield back my time, and I suggest RETIREMENT OF COLONEL RUSS HOWARD, the absence of a quorum. UNITED STATES ARMY masters of public administration de- The PRESIDING OFFICER. The Mr. REED. Mr. President, I rise gree from Harvard University. Colonel Howard was an assistant pro- clerk will call the roll. today to recognize the accomplish- The assistant legislative clerk pro- fessor of social sciences at the U.S. ments of Colonel Russ Howard, head of ceeded to call the roll. the department of social sciences and Military Academy and a senior service Mr. BROWNBACK. Mr. President, I director of the Combating Terrorism college fellow at the Fletcher School of ask unanimous consent that the order Center at West Point. Colonel Howard Law and Diplomacy, Tufts University. for the quorum call be rescinded. is retiring June 3, 2005, after 37 years of During his extraordinary career of The PRESIDING OFFICER. Without Active and Reserve military service. public service, Colonel Russ Howard objection, it is so ordered. In his previous position, he was the was a dedicated leader, enlightened vi- EMBRYONIC STEM CELL RESEARCH deputy department head of the depart- sionary, effective operator, and exem- Mr. BROWNBACK. Mr. President, I ment of social sciences. Prior to that, plary role model for cadets, soldiers, rise to speak about an issue that has Colonel Howard was an Army chief of and civilians. been worked on in the country for staff fellow at the Center for Inter- For the past 7 years, he made enor- some period of time. Soon, a House national Affairs at Harvard University. mous contributions to the U.S. Mili- vote will take place on embryonic stem Formerly, Colonel Howard was the tary Academy, its graduates, and to cell research. The issue that will soon commander of the 1st Special Forces the Nation through his relentless pur- be voted on in the House—and may Group (Airborne) at Fort Lewis, WA. suits of excellence in the department of come before this body—is whether to Other recent assignments include as- social sciences and his advancement of allow the taxpayer funding of destruc- sistant to the Special Representative education, research, and policy devel- tion of young human life. to the Secretary General during opment in the global war on terror. This legislation being considered in UNOSOM II in Somalia, deputy chief of He was the right person at the right the House of Representatives would staff for I Corps, and chief of staff and time in exactly the right job as the take young human embryos, would pro- deputy commander for the Combined Academy and the Nation responded to vide taxpayer dollars to destroy these Joint Task force, Haiti/Haitian Advi- the events of 9/11 and the global war on embryos and conduct research on the sory Group. He also served as the ad- terror. Building on his extraordinary stem cells derived from them. I believe ministrative assistant to ADM skills as a researcher and educator, he we all have a duty to protect innocent Stansfield Turner and as a special as- knew the intellectual response to the life. We have a duty and a responsi- sistant to the commander of war on terror would have to be as sig- bility to look out for the downtrodden, SOUTHCOM. nificant as the operational response those who do not have a voice. These When Colonel Howard was com- and set a course for the department are the youngest of human lives; they mander of 3rd Battalion, 1st Special and the Academy to lead this response. should be protected, and they should Warfare Training Group (Airborne) at Building on an exceptional experi- not be researched on. Fort Bragg, NC, he developed the cur- ence as a Special Forces officer who We have at times in the past in the riculum for the first ever graduate de- commanded at every level from team United States researched on other gree program for the Civil Affairs and leader to Special Forces Group, he was human beings. Whenever we have done Psychological Operations officers. able to integrate the intellectual issues so, at the moment in time when it was Prior to Operation Desert Shield/ of understanding terrorism with the done, people did it on the basis that we Desert Storm, Colonel Howard took a practical issues of countering ter- need to know, or we need to be able to mobile training team to Kuwait and rorism and include them in the cur- conduct this research, or this research Saudi Arabia to train the ‘‘lost boys,’’ riculum, and eventually led to the es- will provide a cure for something. Yet newly appointed Civil Affairs and Psy- tablishment of the Combating Ter- in every instance—either in this coun- chological Operations officers already rorism Center at West Point. try or others—when it has been done deployed to the Persian Gulf. He inspired support from the acad- and the society at large has allowed it, The newly trained officers performed emy leadership, from General-retired we have always, always regretted it superbly during operations and 3rd Wayne Downing, Mr. Vinnie Viola, Mr. later. It has always been wrong for one Battalion won the Army Superior Unit Ross Perot, and many others, so that group of humans who are in a more Award, largely due to the efforts and the U.S. Military Academy has become powerful position to research on some- foresight of Colonel Howard. the international leader in under- body in a lesser position. That has al- As a newly commissioned officer, a graduate terrorism education and re- ways been true, and it remains true much younger officer, Colonel Howard search. today. We should not use taxpayer dol- served as ‘‘A’’ team commander in the Simultaneously, Colonel Howard en- lars to fund research on the youngest 7th Special Forces Group from 1970 to hanced all aspects of the academy and of human lives. It is wrong, it is not 1972. the Department of Social Sciences by necessary, and it should be stopped.

VerDate Aug 04 2004 01:23 May 25, 2005 Jkt 039060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\A24MY6.003 S24PT1 S5832 CONGRESSIONAL RECORD — SENATE May 24, 2005 I am pleased that the President has take adult stem cells out and grow where a life-and-death decision has not promised to veto this legislation. How- them outside the body to the point been made, and we involve the destruc- ever, I also intend to not let this piece that, today, over 58 different human tion of young human lives. The House of legislation make it forward, to move diseases are being treated in human pa- bill should not move forward. to the President’s desk. If others tients. There are published clinical Mr. President, there are two state- choose to bring this destruction of studies using adult stem cells—the ments that the President has put for- human life—taxpayer-funded destruc- stem cells from one’s own body. tion of human life—in front of this A Parkinson’s disease patient, treat- ward saying that he would veto such body, I intend that we are going to talk ed with his own adult stem cells, con- legislation if it comes forward. I ask about it for a long time and address a tinues to exhibit relief of 80 percent of unanimous consent to print these whole series of issues, whether it be his symptoms more than 6 years after statements in the RECORD. human cloning, which is associated the surgery. I had the man come in There being no objection, the mate- with this human destructive legisla- himself, who was treated with his own rial was ordered to be printed in the tion, or the creation of human-animal adult stem cells taken from the base of RECORD, as follows: crosses for research purposes. We are his nose, grown outside the body, put going to spend a lot of time discussing in the left-hand side of his brain, with STATEMENT OF ADMINISTRATION POLICY—MAY 24, 2005 this because young human lives are at a substantial improvement on the stake. I will not sit idly by and acqui- right-hand side of his body. That is H.R. 2520—STEM CELL THERAPEUTIC AND esce in their tragic destruction. purely ethical research. It is working RESEARCH ACT OF 2005 If this human destructive legislation, and getting the job done. (Rep. Smith (R) NJ and 78 cosponsors) or a Senate counterpart, comes before Spinal cord injuries. Dr. Carlos this body, I will use all means available Limas treated 34 patients in Portugal The Administration strongly supports to impede its progress. At the very with their own adult stem cells. I had House passage of H.R. 2520, which would fa- least, we should have a lengthy debate two of them in to testify at a hearing cilitate the use of umbilical-cord-blood stem on this issue before taking any action. last year—one is a paraplegic and one cells in biomedical research and in the treat- ment of disease. Cord-blood stem cells, col- The reason is that young human lives is a quadriplegic—and they are walking lected from the placenta and umbilical cord are at stake. I believe the very nature with the assistance of braces and their after birth without doing harm to mother or of our culture—whether we will have a own adult stem cells. child, have been used in the treatment of culture of life or not is at stake. Will Also, umbilical cord blood cells were thousands of patients suffering from more we honor human life because it is sa- used to treat a South Korean woman than 60 different diseases, including leu- cred per se, or are we going to use it for who had been paralyzed for 19 years. kemia, Fanconi anemia, sickle cell disease, a research apparatus for the benefit of She had not walked for 19 years, and and thalassemia. Researchers also believe others? We have always regretted that she can now walk with braces. cord-blood stem cells may have the capacity when we have done it before. Today is What about juvenile diabetes? This to be differentiated into other cell types, a similar type of discussion. disease affects a lot of people. This is making them useful in the exploration of Some are saying this doesn’t really one that has vexed a lot of people. We ethical stem cell therapies for regenerative look like a human life; it is so small, so all want to find a cure for juvenile dia- medicine. microscopic in some cases, that some betes. H.R. 2520 would increase the publicly avail- say it really cannot be human life. Yet, Dr. Denise Faustman at Harvard is a able inventory of cord-blood stem cells by according to the biological and sci- leading diabetes researcher. She has enabling the Department of Health and entific definition, this is young human completely reversed end-stage juvenile Human Services (HHS) to contract with life. If allowed to be nurtured, it be- diabetes in mice and has FDA approval cord-blood banks to assist them in the col- comes you, me, or anybody watching. to begin human clinical trials using lection and maintenance of 150,000 cord-blood stem cell units. This would make matched Life has to be nurtured at all stages. It adult stem cell therapy. cells available to treat more than 90 percent is no different biologically at that My point in mentioning these 3 of the of patients in need. The bill would also link stage versus at a later stage. It has the 58 different areas is that we have an all participating cord-blood banks to a same biological components, or ‘‘soft- ethical answer. We have an answer that search network operated under contract with ware,’’ if you will, or DNA structure. It does not involve the destruction of HHS, allowing physicians to search for needs to be nurtured, and it matures human life, and it is right before us. matches for their patients quickly and effec- into an adult human. If we are going to We can do it. We can fund it, and we tively in one place. The bill also would reau- proceed on this, I think we are really can move forward with it. We do not thorize a similar program already in place hurting ourselves as a society. have to destroy young human life to do for aiding the use of adult bone marrow in I also point out that some people are this, and it is wrong if we do. medical care. There is now $19 million avail- saying we need to do this to find cures. There is going to be a big discussion. able to implement the Cord Blood Cell Bank I want to find cures, also—cures for We are going to have a lot of debate program; the Administration will work with people with cancer, Alzheimer’s dis- about this issue on the floor or in com- the Congress to evaluate future spending re- quirements for these activities. The bill is ease, Parkinson’s disease, spinal cord mittee or other places if people decide also consistent with the recommendation injuries, or juvenile diabetes—and I to move this legislation forward. This from the National Academy of Science to have been working on that. The thing is not about banning human embryonic create a National Cord Blood Stem Cell is, we have a route to find these cures stem cell research. This is about tax- Bank program. that is ethical and moral. payer funding of human embryonic The Administration also applauds the bill’s The House is also considering a cord stem cell research. Embryonic stem effort to facilitate research into the poten- blood bill from Congressman SMITH cell research is legal. It is being con- tial of cord-blood stem cells to advance re- today, and there are also adult stem ducted in this country. It is being fund- generative medicine in an ethical way. Some cells. We have had this discussion be- ed by the Government of the United research indicates that cord blood cells may fore, but I think people hear ‘‘stem States on a limited set of lines. The have the ability to be differentiated into cells,’’ and they say: I am for it. We President had the discussion and put other cell types, in ways similar to embry- need to be clear that there are different forward the guidelines—a limited set of onic stem cells, and so present similar poten- types of stem cells: There are cord lines that were identified, on which a tial uses but without raising the ethical blood stem cells in the umbilical cord, life-and-death decision had already problems involved in the intentional de- there are embryonic stem cells, where been made prior to funding. That re- struction of human embryos. The Adminis- you have to destroy the embryo itself search continues and goes on today. tration encourages efforts to seek ethical to get the stem cells, and there are The House bill would expand that and ways to pursue stem cell research, and be- lieves that—with the appropriate combina- adult stem cells in my body and yours say we can kill young human life today tion of responsible policies and innovative and anybody watching. These adult for research on embryonic stem cells, scientific techniques—this field of research stem cells are a kind of repair cell that and we want to do it with taxpayer can advance without violating important goes around the body fixing different funding. That is what I am saying I am ethical boundaries. HR 2520 is an important parts of the body. We have been able to opposed to is the taxpayer funding step in that direction.

VerDate Aug 04 2004 01:23 May 25, 2005 Jkt 039060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G24MY6.046 S24PT1 May 24, 2005 CONGRESSIONAL RECORD — SENATE S5833 STATEMENT OF ADMINISTRATION POLICY—May is possible to advance scientific research could have been filibustered, but he 24, 2005 without violating ethical principles: both by was not filibustered. H.R. 810—STEM CELL RESEARCH ENHANCEMENT enacting the appropriate policy safeguards The idea that the filibuster has been ACT OF 2005 and by pursuing the appropriate scientific used over the past several years as a (Rep. Castle (R) DE and 200 cosponsors) techniques. HR 810 is seriously flawed legis- tool to block all the nominees that the lation that would undo those safeguards and The Administration strongly opposes provide a disincentive to pursuing those minority opposed is ludicrous. There House passage of H.R 810, which would re- techniques. were, and there continue to be, very quire Federal taxpayer dollars to be used to Mr. BROWNBACK. Mr. President, we good reasons to block a certain small encourage the ongoing destruction of nas- number of nominees. Nothing that oc- cent human life. The bill would compel all will have much discussion of this issue American taxpayers to pay for research that if it comes before this body. I am going curred last night changed that one relies on the intentional destruction of to be working aggressively with a num- iota. I will continue to vote against human embryos for the derivation of stem ber of individuals to see that we con- cloture only in extraordinary cir- cells, overturning the President’s policy that tinue this stem cell work in an ethical cumstances. I did that when we voted supports research without promoting such manner, but not where it involves the on cloture on the Owen nomination in ongoing destruction. If H.R 810 were pre- 2003 and each subsequent time, and I sented to the President, he would veto the destruction of human life. Mr. President, I yield the floor, and I have done that again today. For the bill. majority to have created this constitu- The President strongly supports medical suggest the absence of a quorum. research, and worked with Congress to dra- The PRESIDING OFFICER. The tional crisis over what came down to matically increase resources for the Na- clerk will call the roll. five nominees was wrong, was an abuse tional Institutes of Health. However, this The legislative clerk proceeded to of power. The American people did not bill would support and encourage a line of re- call the roll. support it, and I do not think they will search that requires the intentional destruc- Mr. FEINGOLD. Mr. President, I ask support it in the future. tion of living human embryos for the deriva- unanimous consent that the order for With respect to the Owen nomina- tion of their cells. Destroying nascent the quorum call be rescinded. tion, there are a number of factors that human life for research raises serious ethical The PRESIDING OFFICER. Without I believe require us to give this nomi- problems, and many millions of Americans objection, it is so ordered. consider the practice immoral. nation very careful consideration. The Administration believes that govern- Mr. FEINGOLD. Mr. President, I First, we should consider that judges ment has a duty to use the people’s money voted no on cloture, and I will vote no on our courts of appeal have an enor- responsibly, both supporting important pub- on the nomination of Priscilla Owen to mous influence on the law. Whereas, lic purposes and respecting moral bound- be a judge on the U.S. Circuit Court of decisions of the district courts are al- aries. Every year since 1995, Congress has on Appeals for the Fifth Circuit Court. I ways subject to appellate review, the a bipartisan basis upheld this balance by pro- would like to take a few minutes today decisions of the courts of appeals are hibiting Federal funds for research in which to explain my votes. I also would like only subject to discretionary review by an embryo is destroyed. Consistent with this to make a few comments on the events provision, the President’s policy permits the the Supreme Court. The decisions of funding of research using embryonic cell that led up to these votes. the courts of appeal are, in almost all lines created prior to August 9, 2001, along I strongly oppose the threat of the cases, final, as the Supreme Court with stem cell research using other kinds of nuclear option. I believe this was an il- agrees to hear only a very small per- cell lines. Scientists can therefore explore legitimate tactic, a partisan abuse of centage of the cases on which its views the potential application of such cells, but power that was a threat to the Senate are sought. That means that the scru- the Federal government does not offer incen- as an institution and to the country. tiny we give to circuit court nominees tives or encouragement for the destruction Attempting to blackmail the minority must be greater than that we give to of nascent human life. into giving up their rights that have H.R 810 seeks to replace that policy with district court nominees. And then, of one that offers very little additional prac- been part of the Senate’s traditions course, the scrutiny we give to Su- tical support to the research, while using and practices for centuries was a new preme Court nominees will even be Federal dollars to offer a prospective incen- low for a majority that has repeatedly greater. tive for the destruction of human embryos. been willing to put party over prin- Another important consideration is Moreover, H.R 810 relies on unsupported sci- ciple. Unfortunately, the blackmail the ideological balance of the Fifth entific assertions to promote morally trou- was partially successful. While I do ap- Circuit. The Fifth Circuit is comprised bling and socially controversial research. plaud the efforts of the Senators who of Texas, Louisiana, and Mississippi. Embryonic stem cell research is at an early worked hard to broker an agreement, stage of basic science, and has never yielded The Fifth Circuit contains the highest a therapeutic application in humans. It is the end result is that three nominees percentage of minority residents, over too early to say if a treatment or a cure will who do not deserve lifetime appoint- 40 percent of any circuit other than the develop from embryonic stem cell research. ments to the judiciary will now be con- DC Circuit. It is a court that, during The Administration believes that the firmed. the civil rights era, issued some of the availability of alternative sources of stem The agreement reached by our col- most significant decisions supporting cells further counters the case for compel- leagues states that filibusters should the rights of African-American citizens ling the American taxpayer to encourage the be reserved for extraordinary cir- to participate as full members of our ongoing destruction of human embryos for cumstances. For me, that has always society. research. Researchers are continually ex- been the test. I think Democrats have ploring alternative ways to derive As someone who believes strongly in pluripotent stem cells. And alternative types stuck to that standard in blocking just freedom, liberty, and equal justice of human stem cells—drawn from adults, 10—just 10—out of the 218 nominations under law and the important role of children, and umbilical-cord blood without of President Bush that have been the Federal courts to defend these fun- doing harm to the donors—have already brought to the floor. A number of very damental American principles, I am es- achieved therapeutic results in thousands of conservative and very controversial pecially concerned about the makeup patients with dozens of different diseases. nominees have been confirmed by the of our circuit courts and their ap- Moreover, private sector support and pub- Senate. Jeffrey Sutton, now a judge on lic funding by several States for this line of proaches to civil rights issues. research, which will add up to several billion the Sixth Circuit, was confirmed by a Even after 8 years of a Democratic dollars in the coming few years, argues vote of 52 to 41. No filibuster was used President, the Fifth Circuit had twice against any urgent need for an additional in- there. Jay Bybee, the author of the in- as many Republican appointees as fusion of Federal funds which, even if com- famous torture memo, now sits on the Democratic appointees. That is because pletely unrestricted, would not approach Ninth Circuit. He was not filibustered. during the last 6 years of the Clinton such figures. Whatever one’s view of the eth- Michael McConnell, a very conserv- administration, the Judiciary Com- ical issues or the state of the research, the ative and anti-choice law professor, mittee did not report out a single judge future of this field does not require a policy often mentioned as a possible Supreme to the Fifth Circuit Court of Appeals. of Federal subsidies offensive to the moral principles of millions of Americans. Court nominee, was confirmed for the As we all know, that was not for a lack H.R. 810 advances the proposition that the Tenth Circuit. He was not filibustered. of nominees to consider. President Nation must choose between science and eth- Dennis Shedd was confirmed to the Clinton nominated three well-qualified ics. The Administration, however, believes it Fourth Circuit by a vote of 55 to 44. He lawyers to the Fifth Circuit—Jorge

VerDate Aug 04 2004 01:23 May 25, 2005 Jkt 039060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\A24MY6.005 S24PT1 S5834 CONGRESSIONAL RECORD — SENATE May 24, 2005 Rangel, Enrique Moreno, and Alston sumers or victims of personal injury notification may lead to her physical, Johnson. None of these nominees even and in favor of business and insurance sexual, or emotional abuse. received a hearing before the com- companies. When the Texas Supreme During Justice Owen’s first confirma- mittee. Court, which is a very conservative and tion hearing, Senator CANTWELL ques- Then-Chairman LEAHY held a hearing pro- business court, rules in favor of tioned Justice Owen about her posi- in July 2001 on the nomination of consumers or victims of personal in- tions in cases interpreting this law, fo- Judge Edith Brown Clement for a seat jury, Justice Owen frequently dissents. cusing on Justice Owen’s insistence in on the Fifth Circuit only a few months According to Texas Watch, during the In re Jane Doe. In that case, a teenager after she was nominated and less than period 1999 to 2002, Justice Owen dis- is required to consider ‘‘philosophic, 2 months after Democrats took control sented almost 40 percent of the time in social, moral, and religious’’ argu- of the Senate. It was the first hearing cases in which a consumer prevailed. ments before seeking an abortion. In in the Judiciary Committee for a Fifth But in cases where the consumer posi- her opinion, Justice Owen cited the Su- Circuit nominee since September 1994. tion did not succeed, Justice Owen preme Court’s decision in Planned Par- And Judge Clement, of course, was con- never dissented. enthood of Southeastern Pennsylvania firmed later in the year. At her first hearing, Senator KEN- v. Casey to support her contention that The fact is, there is a history here NEDY and then-Senator Edwards asked States can require minors to consider and a special burden on President Bush Justice Owen to cite cases in which she religious views in their decision to to consult with our side on nominees dissented from the majority and sided have an abortion. But, as Senator for this circuit; otherwise, we will be in favor of consumers. Justice Owen CANTWELL noted, Casey in no way au- simply rewarding the obstructionism could cite only one case, Saenz v. Fi- thorizes States to require minors to that the President’s party engaged in delity Guaranty Insurance Under- consider religious arguments in their over the last 6 years of the Clinton ad- writers. But Justice Owen’s opinion in decision on whether to have an abor- ministration by allowing him to fill, this case hardly took a pro-consumer tion. Upon this further questioning, with his choices, seats that his party position since it still would have de- Justice Owen then said that she was re- held open for years, even when quali- prived the plaintiff of the entire jury ferring to another Supreme Court case, fied nominees were advanced by Presi- verdict. She did not join Justice H.L. v. Matheson, even though her dent Clinton. Spector’s dissent, which would have opinion only cited Casey for this propo- I say, once again, my colleagues on upheld the jury verdict in favor of Ms. sition. And even Matheson does not say the Republican side bear some respon- Saenz. that minors can be required by State sibility for this situation. There was a Also during that first hearing, Sen- law to consider religious arguments. It time when I thought they might help ators FEINSTEIN and DURBIN questioned is my view that Justice Owen was resolve it by urging the administration Justice Owen about Provident Amer- going beyond not only a plain reading to address the Senate’s failure to take ican Ins. Co. v. Castaneda. In that case, of the Texas statute, but Supreme up Clinton nominees. This entire con- the plaintiff sought damages against a Court case law, and inappropriately in- troversy over judges that has come to health insurer for denying health care jecting her own personal views to make a head over the last several weeks benefits, after the insurer had already it more difficult for a minor to comply could have been avoided if our Repub- provided pre-operative approval for the with the statute and obtain an abor- lican colleagues had convinced the surgery. Justice Owen, writing for the tion. President to renominate even a few of majority, reversed the jury’s verdict in I was also not satisfied with Justice those Clinton nominees who never re- favor of the plaintiff and rejected the Owen’s responses to my questions ceived a hearing or vote in the com- plaintiff’s claim that the health in- about bonuses to Texas Supreme Court mittee, including nominees to the surer violated the Texas Insurance law clerks. I asked her at the hearing Fifth Circuit. But, of course, that did Code and the Deceptive Trade Prac- whether she saw any ethical concerns not happen. There was no effort to tices Act. At the hearing, Justice Owen with allowing law clerks to receive bo- reach a real compromise to take into defended her opinion by saying that nuses from their prospective employers account the concerns of all parties. she believed that the plaintiff was during their clerkships. I also explored A compromise at the point of a gun is seeking extra-contractual damages and the topic further with her in followup not a compromise. That, I’m afraid, is that the plaintiff had already received written questions. Justice Owen stated what we had last night. full coverage under the policy and stat- repeatedly in her written responses to With that background, let me outline utory penalties. But, in the words of my questions that she is not aware of the concerns that have caused me to her colleague, Justice Raul Gonzalez, law clerks actually receiving bonuses reach the conclusion that Justice Owen who wrote a dissent, Justice Owen’s while they were employed by the court. should not be confirmed. opinion ‘‘may very well eviscerate the She reaffirmed that testimony in her Justice Owen has had a successful bad-faith tort as a viable case of action second hearing. This seems implausble legal career. She graduated at the top in Texas.’’ The cause of action for bad given the great amount of publicity of her class from Baylor University faith is designed to deter insurers from given to Ian investigation pursued by Law School, worked as an associate engaging in bad faith practices like de- the Travis County attorney of exactly and partner at the law firm of Andrews nying coverage in the first place. that practice and the well publicized and Kurth in Houston, and has served In addition, with respect to several modifications to the Texas Supreme on the Texas Supreme Court since Jan- decisions involving interpretation and Court’s rules that resulted from that uary 1995. These are great accomplish- application of the Texas parental noti- investigation and the accompanying ments. fication law, I am deeply troubled by controversy. But Justice Owen’s record as a mem- Justice Owen’s apparently ignoring the Even more disturbing, Justice Owen ber of the Texas Supreme Court leads plain meaning of the statute and in- took the position, both at the first me to conclude that she is not the jecting her personal beliefs concerning hearing and in her responses to written right person for a position on the Fifth abortion that have no basis in Texas or questions, that because the Texas Su- Circuit. I am not convinced that Jus- U.S. Supreme Court law. In 2000, the preme Court Code of Conduct requires tice Owen will put aside her personal Texas legislature enacted a parental law clerks to recuse themselves from views and ensure that all litigants be- notification law that allows a minor to matters involving their prospective fore her on the Fifth Circuit received a obtain an abortion without notifica- employers, there really is no ethical fair hearing. Her decisions in cases in- tion of her parents if she demonstrates concern raised by law clerks accepting volving consumers’ rights, worker’s to a court that she has complied with bonuses while employed with the court. rights, and reproductive rights suggest one of three ‘‘judicial bypass’’ provi- I disagree. It is not sufficient for law that she would be unable to maintain sions: (1) that she is ‘‘mature and suffi- clerks to recuse themselves from mat- an open mind and provide all litigants ciently well informed’’ to make the de- ters involving their prospective em- a fair and impartial hearing. cision without notification to either of ployers if they have received thousands Justice Owen has a disturbing record her parents; (2) that notification would of dollars in bonuses while they are of consistently siding against con- not be in her best interest; or (3) that working for the court. The appearance

VerDate Aug 04 2004 01:23 May 25, 2005 Jkt 039060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G24MY6.050 S24PT1 May 24, 2005 CONGRESSIONAL RECORD — SENATE S5835 of impropriety and unfairness that view those as extraordinary cir- ants in a prison without access to such a situation creates is untenable. cumstances. I will continue to vote to counselor trial by jury, whether busi- As I understand it, the Federal courts block any nominee who is not suitable nesses have access to some of your have long prohibited Federal law for the bench, and it will continue to most personal information, whether clerks both from receiving bonuses dur- be an unusual exception for me not to the Government has established a proc- ing their clerkships and from working support a nominee. My standard has ess for eavesdropping or tracking U.S. on cases involving their prospective been extraordinary circumstances all citizens without probable cause, and employers. I am pleased that the Texas along. whether the Government has the abil- Supreme Court finally recognized this As a former member of the Judiciary ity to develop new software that might ethical problem and changed its code of Committee, I attended a hearing on track the use of your own computer conduct for clerks. Justice Owen, in Priscilla Owen that lasted a full day. and places where you might go on the contrast, seems intent on defending the During that hearing, Owen’s record Internet without your consent or prior, indefensible, practice. showed a particular disregard for knowledge. There are a variety of Finally, I want to note the unusual precedent and the plain rule of law. issues that are before us on an individ- nature of this particular nomination. Anyone who walks into a courtroom ual’s right to privacy and how that Unlike so many nominees during the as a plaintiff or a defendant in this right to privacy is going to be inter- Clinton years, Justice Owen was con- country should do so having the full preted. A clear understanding of a sidered in the Judiciary Committee confidence that there is impartiality nominee’s willingness to follow prece- under Senator LEAHY’s leadership in on the part of the judge on the bench. dent on protecting privacy is a very 2002. She had a hearing, and she had a They should have total confidence that important criterion for me, and it vote. Her nomination was rejected. the rule of law will be followed, and be- should be a concern for all Members. This has been the first time in history lieve the issues will be judged on their Of course, some of my concern and that a circuit nominee who was for- merits rather than viewed through the skepticism about Justice Owen’s views mally rejected by the committee, or prism of an individual judge’s personal on privacy results from the opinions the full Senate for that matter, has values or beliefs. she wrote in a series of cases inter- been renominated by the same Presi- There is reason to be concerned preting the Texas law on parental noti- dent to the same position. I do not be- about the record of Priscilla Owen. fication. In 2000 the State of Texas lieve that defeated judicial nomina- Time after time, even her own Repub- passed a law requiring parental notifi- tions should be reconsidered like legis- lican colleagues, on a predominantly cation. But they also included a bypass lation that is not enacted. After all, Republican Texas Supreme Court system for extreme cases. Eleven out of 12 times Owen analyzed legislation can be revisited after it is bench, criticized her for failing to fol- whether a minor should be entitled to enacted. If Congress makes a mistake low precedent or interpreting statutes bypass the notice requirement, she when it passes a law, it can fix that in ways that ignore the clear intent of voted either to deny the bypass or to mistake in subsequent legislation. Let the law. What some of Owen’s colleagues on create greater obstacles to the bypass. us all remember that judicial appoint- Owen wrote in dissent that she would the bench have said about her opinions ments are for life. Confirmations can- require a minor to demonstrate that I think is important. In a case dealing not be taken back or fixed. A vote to she had considered religious issues sur- with a developer seeking to evade Aus- confirm a nominee is final. A vote to rounding the decision and that she had reject that nominee should be final as tin’s clean water laws, her dissent was received specific counseling from some- well. For the President to renominate called ‘‘nothing more than inflam- one other than a physician, her friend, a defeated nominee and the Senate to matory rhetoric.’’ or her family. Requirements, I believe, In another case, her statutory inter- reconsider her simply because of the that go far beyond what the statute re- pretation was called ‘‘unworkable.’’ In change of a few seats in an election quires. cheapens the nomination process and yet another case, the dissent she joined In interpreting the ‘‘best interest’’ the Senate’s constitutional role in that was called ‘‘an unconscionable act of arm of the statute, Owen held that a process. judicial activism.’’ minor should be required to dem- I believe Justice Owen is bright and There is another reason this nomina- onstrate that the abortion itself—not accomplished, but I sincerely believe tion is so important. This is critical to avoiding notification—was in the indi- that based on her judicial record, Jus- all the nominees we are considering for vidual’s best interests. In this par- tice Owen is not the right choice for appointment to the Federal bench, and ticular case, I think she went far be- this position. especially important for you here this yond what the statue required. Ms. CANTWELL. Mr. President, I dis- morning. That is, what is the judicial Where does that put us? Women in cuss the nomination of Priscilla Owen philosophy and commitment to uphold- this country rely on the right to to the Fifth Circuit Court of Appeals, ing current law as it relates to a citi- choose. It is an issue on which we have and to briefly discuss the compromise zen’s right to privacy. I asked Justice had 30 years of settled law and case before us on the so-called nuclear op- Owen at her hearing about her beliefs precedent. In the Fifth Circuit, there tion. on the right to privacy. I asked her if are three States that continue to have I continue to oppose all three of the she believed there was constitutional unconstitutional laws on the books, nominees that will proceed to up-or- right to privacy and where she found and legislatures that are hostile to down votes as the result of this com- that right in the Constitution. that right to choose. The Federal promise, and I will be voting against She declined at the time to answer courts are the sole protector of wom- cloture on Priscilla Owen as a result. that question without the relevant en’s right to privacy in these states. I But I do acknowledge the importance case information and precedents before do not believe that the rights of the of preserving the process of debating her. When Senator FEINSTEIN followed women of the Fifth Circuit can be judicial nominees. I do not feel that up with a similar question, Owen trusted to Justice Priscilla Owen. the filibuster has been misused with re- against would not answer whether she The Senate provides each of us with gard to President Bush’s nominees, as believes a right to privacy does exist the procedural privilege to thoroughly I’ll explain shortly, but I am impressed within the Constitution. discuss my concerns about this nomi- at the efforts of my colleagues on both The question of whether a nominee nee—the filibuster. The filibuster has sides of the aisle to avoid the all-or- believes that the right to privacy ex- been used against me on issues I care nothing nuclear option vote that ists with regard to the ability to make deeply about, just as I have used this threatened to cause us to break down decisions about one’s own body is only procedure when it was necessary to as an institution. the tip of the privacy iceberg. I believe protect the people of my state. This I also express my hope that the term that we are in an information age that body, in which I am so privileged to ‘‘extraordinary circumstances’’ that is poses new challenges in protecting the serve, is more important than any one in this compromise is interpreted sen- right to privacy. We are facing difficult of us, precisely because even one Sen- sibly. When extreme nominees threaten issues including whether U.S. citizens ator can stand up for her state in the the balance of our federal courts, I have been treated as enemy combat- face of a powerful majority.

VerDate Aug 04 2004 05:10 May 25, 2005 Jkt 039060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\A24MY6.007 S24PT1 S5836 CONGRESSIONAL RECORD — SENATE May 24, 2005 This agreement, whatever else I The Senate was nearly forced into a lature intended local school boards to might think of it, preserves the rights similar ‘‘corner’’ this week. Had Demo- make,’’ and that the majority had ‘‘misinter- in this body that make it unique and crats not supported cloture on Priscilla preted the Education Code.’’ One senator attacked Justice Owen for her that give it the most credibility. Each Owen today, then all Senators would opinion in Texas Farmers Insurance Co. v. of us has to respect the views of the have had to make a conclusive decision Murphy. In this case, Justice Owen simply rest. When 40 of us stand together, the as to whether it should take 60 or 51 joined an opinion holding that neither an ar- other 60 must negotiate. That is votes to confirm a judge. Instead, we sonist nor his spouse should benefit from his healthy and that is what happened are putting off that decision until an- crime by recovering insurance proceeds. The here. The rules of the Senate, and the other day. opinion followed two unanimous decisions of That may still come. And if it does the Fifth Circuit, the very court to which existence of the Federal judiciary Justice Owen has been nominated. itself, pose proper checks on majority come, I hope that we hear no more talk Justice Owen was also criticized for a rul- and Presidential power. That is the of the ‘‘illegitimacy’’ of the constitu- ing she and I both joined in Peeler v. Hughes way it should stay. tional option. There is plenty to dis- & Luce and Darrell C. Jordan—in which we Mr. KYL. Mr. President, I want to re- cuss as to whether exercising the op- simply held that an admitted criminal could spond to a statement that the Senior tion is prudential in a particular case. not benefit from criminal activity by suing Senator from West Virginia made yes- Some of the debate these past few days the criminal-defense attorney for mal- practice. terday. In his remarks, the Senator has addressed that prudential question, A number of senators focused on Justice conceded the legitimacy of the con- including some of the discussion from Owen’s opinion in FM Properties Operating Co. stitutional option, what he called the the Senator from West Virginia. But v. City of Austin. One senator specifically ‘‘nuclear option,’’ as a way for the Sen- there has also been talk about the con- criticized her for refusing to rule that a ate to determine its practices and pro- stitutional option being a case of ‘‘law- Texas water law ‘‘was an unconstitutional cedures. The option is, of course, the lessness’’ or ‘‘breaking the rules to delegation of legislative authority.’’ Yet lib- eral attorneys regularly criticize the non- leader’s right to obtain a ruling from change the rules.’’ The constitutional delegation doctrine and claim that conserv- the presiding officer that certain ac- option is a part of Senate history. In atives wrongly use it to invalidate laws duly tions of Senators are dilatory and can- Senator BYRD’s words, it ‘‘has been enacted by the legislature. In fact, just last not preclude the Senate from voting on around for a long time.’’ month one senator criticized another nomi- a judicial nomination. And it will always be with us. The nee, Bill Pryor, for championing the non- Here is what he said: ‘‘The so-called constitutional option is not, as the mi- delegation doctrine. So Justice Owen’s crit- nuclear option has been around for a nority leader has repeatedly insisted, ics seem to argue that if you support the nondelegation doctrine, you are out of the long time. It doesn’t take a genius to ‘‘off the table.’’ It is simply unneces- mainstream, and that if you oppose the non- figure that out.’’ He went on to explain sary at present. If it becomes necessary delegation doctrine, you are out of the main- that this constitutional option had again, we may be called on to live up to stream. It reminds me of a country-western been available since at least 1917, and our responsibilities to the Constitution song: ‘‘Darned If I Don’t, Danged If I Do.’’ he repeatedly emphasized that this tool and to the Senate to ensure that we re- One senator claimed that, in Read v. Scott has been around ‘‘for a long time.’’ store our traditions and guarantee up- Fetzer Co., Justice Owen ruled that a woman I appreciate this acknowledgment raped by a vacuum-cleaner salesman could or-down votes to all judicial nominees not sue the company that had employed him from the Senator from West Virginia, who reach the Senate floor. after failing to undertake a standard back- because I know he has studied the his- Mr. CORNYN. Mr. President, at var- ground check—an allegation recently articu- tory of the Senate, and I know he has ious times during the course of debate lated in an op-ed in Roll Call. Yet as my let- intimate familiarity with the workings in recent days over the nomination of ter to the editor noted, that allegation is of the Constitutional Option. There is Justice Priscilla Owen, a number of her plainly false. As the opinion joined by Jus- nothing new about the constitutional previous rulings have been badly tice Owen noted, ‘‘[n]o one questions that [the company that had hired the rapist] is option, as I discussed in my May 19 mischaracterized. Last Thursday, May liable.’’ The justices simply disagreed on floor speech outlining the legal and 19, I rose to speak about a number of whether another company—one that had not constitutional rationale for its exer- those cases and to correct the record. hired the rapist and had no relationship with cise. The constitutional option is sim- And just this morning, I published an the rapist—should also have been held liable. ply the Senate’s exercise of its power op-ed in National Review Online to fur- Justice Owen was also criticized for her to define its own procedures—a power ther rebut these baseless criticisms. I ruling in Hyundai Motor Co. v. Alvarado. In that case, an automobile alleged to be defec- that comes directly from the Constitu- ask unanimous consent that an excerpt tive had in fact fully satisfied the federal tion and has been affirmed by the Su- of that op-ed be printed in the RECORD. standard then in effect. The plaintiff chose preme Court. (U.S. v. Ballin, 144 U.S. 1 There being no objection, the mate- to sue anyway, despite federal law. Justice (1892)) I appreciate that the Senator rial was ordered to be printed in the Owen simply held that Congress had forbid- has acknowledged its legitimacy. RECORD, as follows: den such lawsuits once the federal standard The Senator from West Virginia also It is now conceded that Justice Owen, Jus- had been met—a technical legal doctrine argued, however, that past majority tice Brown, and Judge Pryor all deserve up- known as federal preemption. For this, she was sharply criticized. Yet her opinion sim- leaders have never used the constitu- or-down votes. I happen to know personally that the case against Justice Owen was espe- ply followed the ‘‘solid majority of the tional option to ‘‘tamper’’ with ex- courts to consider this issue’’—including tended debate. As my May 19 state- cially weak, because I know Priscilla person- ally from our service together on the Texas precedents authored by judges appointed by ment established, as did yesterday’s supreme court. Just consider the following President Jimmy Carter. Moreover, the U.S. statements by Senators MCCONNELL, litany of supposedly ‘‘out of the main- Supreme Court later adopted Justice Owen’s approach (Geier v. American Honda Motor Co., HATCH, and BENNETT, that is not actu- stream’’ rulings for which she was criticized: ally the case. A number of senators criticized Justice Inc.), in an opinion authored by Clinton ap- The fact is that the Senator himself Owen’s opinion in Montgomery Independent pointee, and former Democrat chief counsel School District v. Davis. One senator specifi- of the Senate Judiciary Committee, Justice used the constitutional option four Stephen Breyer. cally attacked her for failing to protect a times when serving as majority lead- Justice Owen was likewise criticized for er—in one case to outright eliminate teacher who was ‘‘wrongly dismissed.’’ The her rulings in Quantum Chemical Corp. v. case involved the authority of a local school Toennies, a case involving a Texas civil- the filibuster for motions to proceed to board to dismiss a poorly performing and Executive Calendar nominations. rights law expressly modeled after Title VII abusive teacher. The teacher had admitted of the federal Civil Rights Act of 1964, and Moreover, in February 1979, he forced that she had referred to her students as ‘‘lit- City of Garland v. Dallas Morning News, a the minority to agree to a formal rules tle s***s.’’ When confronted, the teacher jus- Texas open-government law modeled after change after credibly threatening that tified the use of the expletive on the bizarre the federal Freedom of Information Act. he would exercise the constitutional ground that she used exactly the same lan- Once again, all she did was follow precedents option. At that time, the Senator said guage when talking to her own children. The adopted by appointees of Presidents Carter on this floor, ‘‘if I have to be forced teacher regularly insulted parents as well. and Clinton. The opinion joined by Justice Owen con- Justice Owen and I happened to disagree in into a corner to try for a majority cluded that the school board was authorized Weiner v. Wasson, a case involving a tech- vote, I will do it because I am going to to dismiss this teacher. It noted that the ma- nical matter of applying a statute of limita- do my duty as I see my duty, whether jority’s ruling ‘‘allows a state hearing exam- tions to a medical malpractice suit. One sen- I win or lose.’’ iner to make policy decisions that the Legis- ator argued that my opinion was ‘‘a lecture

VerDate Aug 04 2004 01:23 May 25, 2005 Jkt 039060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\A24MY6.019 S24PT1 May 24, 2005 CONGRESSIONAL RECORD — SENATE S5837 to the dissent’’ about the importance of stare GLOBAL WARMING tic Council, whose work I addressed decisis and following precedent. The argu- Mr. INHOFE. Mr. President, over the last week, stated that arctic warming ment is baseless. In fact, Justice Owen didn’t past few weeks, I have debunked the and the impact stemming from that try to overturn precedent in that case; only notion of scientific consensus about warming are firmly established by the defendant did. Moreover, Justice Owen’s global warming. The claim there is ruling contained an equally emphatic ‘‘lec- computer models. ture’’ to the defendant about the importance consensus rests on four fundamental Quoting from him: of following precedent. pillars. My previous talks made clear While the models differ in their projections And of course, there were the now-famous that the first three pillars are made of of some of the features of climate change, cases involving the popular Texas parental- sand. they are all in agreement that the world will notification law—a parental-rights law that It is not true, for example, that the warm significantly as a result of human ac- generally requires minors to notify one par- National Academy of Sciences believes tivities, and that the Arctic is likely to expe- ent before obtaining an abortion. Readers the science of climate change is set- rience noticeable warming, particularly should ask themselves one simple question: tled. In fact, the report is replete with early and intensely. Who would you trust to analyze and deter- caveats, warning the reader of the Similarly, the IPCC, which I also dis- mine the quality of Justice Owen’s legal many uncertainties associated with cussed in the earlier talks, relied on analysis in those cases? The author of the claims of global warming. Yet advo- such earlier models to project a long- Texas law—who supports Owen? Her former term temperature increase ranging colleagues on the court, including former cates continue to recite small excerpts Justices Alberto Gonzales and Greg Abbott, while ignoring the caution about un- from 2.5 to 10.4 degrees Celsius and as- who support her? Now-Attorney General certainties contained within the same sorted and potentially dangerous cli- Alberto Gonzales, who has testified—under paragraph or even the same science. mate changes over the next century. oath—that he supports Justice Owen and It is also not true that the second pil- According to Dr. Kenneth Green, Dr. that, contrary to false reports, he never ac- lar, the U.N. science report known as Tim Ball, and Dr. Steven Schroeder, cused her of ‘‘judicial activism’’? The pro- the IPCC, proves a consensus. The flag- the politicians clearly do not realize choice Democrat law professor appointed by ship study on which the IPCC report that the major conclusions of the the Texas supreme court to set up proce- relies, known as the hockey stick, IPCC’s reports are not based on hard dures under the statute—who supports Owen, evidence and observation but, rather, and who has written: ‘‘If this is activism, which shows an unprecedented rise in then any judicial interpretation of a stat- 20th century temperatures, has been largely upon the output of assumption- ute’s terms is judicial activism’’? Or do you thoroughly discredited by scientists on driven climate models. trust the liberal special-interest groups who both sides of the debate. In fact, re- The alarmists cite the results of cli- sharply opposed the Texas law, and never cently, and since 1999, there hasn’t mate models as proof of the cata- wanted that law to be enacted in the first been anyone who has agreed there is strophic warming hypotheses. Consider place? Or the groups who literally make a authenticity to the issue. In addition, one alarmist’s description, who wrote living destroying the reputation of this the U.N. report relies on an explosive recently: president’s nominees? Drawing on highly sophisticated computer The attacks on these rulings by Justice increase in emissions from poor coun- models, climate scientists can project, not Owen reminded me of what Mark Twain once tries over the next century based on predict, how much temperatures may rise by said: ‘‘A lie can travel halfway around the the political decision by the report’s say 2100 if we carry on with business as world while the truth is still putting on its author that countries such as Algeria usual. shoes.’’ But let’s keep our eye on the ball. will be as wealthy or wealthier than The American people know a controversial the United States. He continues: ruling when they see one—whether it’s the The third pillar, supposedly proving Although scenarios vary, some get pretty redefinition of marriage, or the expulsion of that the science is settled that the Arc- severe, and so do the projected impacts of the Pledge of Allegiance and other expres- tic is melting, is based on political climate change, rising sea levels, species ex- tensions, glacier melting and so forth. sions of faith from the public square—wheth- science. Arctic temperatures are no er it’s the elimination of the three-strikes- It sounds pretty scary, but the state- and-you’re out law and other penalties warmer than they were in the 1930s. Similarly, the thickness of the Arctic ment is completely false. It sheds no against convicted criminals, or the forced re- light on the likelihood or reliability of moval of military recruiters from college glaciers and the sea ice appears to vary campuses. Justice Owen’s rulings fall no- naturally by as much as 16 percent an- such projections. If, for example, a where near this category of cases. There is a nually. model shows a significant temperature world of difference between struggling to in- These and other factors which the increase over the next 50 years, how terpret the ambiguous expressions of a legis- alarmists find inconvenient would much confidence do we have in that lature, and refusing to obey a legislature’s seem to indicate that projections of an projection? Attaching probabilities to directives altogether. Arctic climate catastrophe are specula- model results is extremely difficult and Thankfully, the Senate has now effectively tive, at best. rife with uncertainties. acknowledged this important distinction, by Today I conclude the series on the In the 2000 edition of ‘‘Nature,’’ four guaranteeing Justice Owen an up-or-down climate modelers noted that: vote after four long years. four pillars of climate alarmists by dis- cussing the problems associated with A basic problem with all such predictions I yield the floor and I suggest the ab- global climate models. to date has been the difficulty of providing sence of a quorum. Let me begin by briefly explaining any systematic estimate of uncertainty. The PRESIDING OFFICER. The the climate models and how they func- This problem stems from the fact clerk will call the roll. tion. Climate models help scientists de- that: The legislative clerk proceeded to scribe changes in the climate system. These [climate] models do not necessarily call the roll. They are not models in the conven- span the full range of known climate system Mr. INHOFE. Mr. President, I ask tional sense; that is, they are not phys- behavior. unanimous consent that the order for ical replicas. Rather, they are mathe- According to the National Academy the quorum call be rescinded. matical representations of the physical of Sciences: The PRESIDING OFFICER. Without laws and processes that govern the . . . without an understanding of the sources objection, it is so ordered. Earth’s climate. According to Dr. and degree of uncertainty, decision-makers Mr. INHOFE. What is the regular David Legates of the University of could fail to define the best ways to deal order? Delaware, climate models ‘‘are de- with the serious issue of global warming. The PRESIDING OFFICER. The Sen- signed to be descriptions of the full This fact should temper the enthu- ate business is the nomination of Pris- three-dimensional destruction of the siasm of those who support Kyoto-style cilla Owen to be United States Circuit earth’s climate.’’ Dr. Legates claims regulations that will harm the Amer- Court Judge. models are used ‘‘in a variety of appli- ican economy. Mr. INHOFE. I ask unanimous con- cations, including the investigation of Previously, we have talked about the sent I be allowed to speak as in morn- the possible role of various climate harm to the economy and have referred ing business for such time as I con- forcing mechanisms and the simulation to the Wharton Econometric Survey sume. of past and future climates.’’ which was conducted by the Wharton The PRESIDING OFFICER. Without Thousands of climate changes stud- School of Economics. It gets into a lot objection, it is so ordered. ied rely on computer models. The Arc- of detail as to what is going to happen.

VerDate Aug 04 2004 02:34 May 25, 2005 Jkt 039060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\A24MY6.022 S24PT1 S5838 CONGRESSIONAL RECORD — SENATE May 24, 2005 For example, to comply with Kyoto, it pled the atmosphere and oceans, has In January of 2000, the NRC panel ex- would cost the average family of four observed: amined the output from several cli- some $2,700 a year. So it is a very sig- Models that incorporate everything from mate models to assess how well they nificant thing. dust to vegetation may look like the real mimicked the observed surface and Now note, too, the distinction be- world, but the error range associated with lower atmospheric temperature trends. tween ‘‘project’’ and ‘‘predict.’’ The the addition of each new variable could re- They found that: sult in near total uncertainty. This would alarmist writer noted earlier creates Although climate models indicate that the misimpression that a projection is represent a paradox: The more complex the models, the less we know. changes in greenhouse gases and aerosols more solid than a prediction. But a play a significant role in defining the projection is the output of a model cal- We are often reminded that the IPCC vertical structure of the observed atmos- culation. Put another way, it is only as used sophisticated modeling techniques phere, model-observation discrepancies indi- good as the model’s equations and in- in projecting temperature increases for cate that the definitive model experiments puts. As we will see later in this pres- the coming century. But as William have not been done. entation, such inputs or assumptions O’Keefe and Jeff Kueter of the George John Wallace, the panel chairman about the future can be extremely C. Marshall Institute pointed out in a and professor of atmospheric sciences flawed, if not totally divorced from re- recent paper: at the University of Washington, put it ality. And this, to be sure, is only one The complex models envisioned by the more bluntly. He said: IPCC have many more than twenty inputs, of the many technical shortcomings There really is a difference between tem- and many of those inputs will be known with peratures at the two levels that we don’t that limit the scientific validity of cli- much less than 90 percent confidence. mate modeling. fully understand. Also, tinkering with climate vari- Unfortunately, rarely does any scru- More recently, researchers at the tiny accompany model simulations. ables is a delicate business—getting one variable wrong can greatly skew University of Colorado, Colorado State But based on what we know about the University, and the University of Ari- physics of climate models, as well as model results. Dr. David Legates has noted that: zona, examined the differences between the questionable assumptions built real-world temperature observations into the models themselves, we should Anything you do wrong in a climate model with the results of four widely used cli- be very skeptical of their results. This will adversely affect the simulation of every other variable. mate models. They probed the fol- is exactly the view of the National lowing question: Do the differences Take precipitation, for example. As Academy of Sciences. According to the stem from uncertainties in how green- Dr. Legates noted: NAS: house gases and other variables affect Climate models are imperfect. Their sim- Precipitation requires moisture in the at- the climate system or by chance model mosphere and a mechanism to cause it to ulation skill is limited by uncertainties in fluctuations; that is, the variability their formulation, the limited size of their condense (causing the air to rise over moun- tains, by surface heating, as a result of caused by the model’s flawed represen- calculations, and the difficulty of inter- tation of the climate system? preting their answers that exhibit as much weather fronts, or by cyclonic rotation). Any complexity as in nature. errors in representing the atmospheric mois- As it turned out, neither of these fac- ture content or precipitation-causing mecha- tors was to blame. According to the re- At this point, climate modeling is nisms will result in errors in the simulation searchers: still a very rudimentary science. As of precipitation. Significant errors in the simulation of Richard Kerr wrote in Science maga- Dr. Legates concluded: zine: globally averaged tropospheric temperature Clearly, the interrelationships among the structure indicate likely errors in tropo- Climate forecasting, after all, is still in its various components that comprise the cli- spheric water-vapor content and therefore infancy. mate system make climate modeling dif- total greenhouse-gas forcing, precipitable Models, while helpful for scientists in ficult. water, and convectively forced large-scale understanding the climate system, are The IPCC, in its Third Assessment circulation. far from perfect. According to cli- Report, noted this problem, and many Moreover, based on the ‘‘significant matologist Gerald North of Texas A&M others, with climate modeling, includ- errors of simulation,’’ the researchers University: ing—this is a quote from their report; called for ‘‘extreme caution in applying It’s extremely hard to tell whether the the very basis that many of the alarm- simulation results to future climate- models have improved; the uncertainties are ists are basing their decisions on: change assessment activities and to at- large. Discrepancies between the vertical profile tributions studies. Or as climate modeler Peter Stone of of temperature change in the troposphere They also questioned ‘‘the predictive the Massachusetts Institute of Tech- seen in observations and models. ability of recent generation model sim- nology put it: Large uncertainties in estimates of inter- ulations, the most rigorous test of any nal climate variability (also referred to as The major [climate prediction] uncertain- natural climate variability) from models and hypothesis.’’ ties have not been reduced at all. observations. There does not seem to be much wig- Based on these uncertainties, cloud Considerable uncertainty in the recon- gle room here: Climate models are use- physicist Robert Charlson, professor structions of solar and volcanic forcing ful tools, but unable, in important re- emeritus at the University of Wash- which are based on limited observational spects, to simulate the climate system, ington-Seattle, has concluded: data for all but the last two decades. undermining their ‘‘predictive ability.’’ Large uncertainties in anthropogenic To make it sound like we understand cli- forcings associated with the effects of Based on this hard fact, let me bring mate is not right. aerosols. you back to the alarmist writer I ref- This is not to deny that climate mod- Large differences in the response of dif- erenced earlier. As he wrote recently: eling has improved over the last three ferent models to the same forcing. Drawing on highly sophisticated computer decades. Indeed, scientists have con- I want to delve a little deeper into models, climate scientists can project—not structed models that more accurately the first point concerning the discrep- predict—how much temperature may rise by, reflect the real world. In the 1970s, ancies between temperature observa- say, 2100, if we carry on with business as models were capable only of describing tions in the troposphere and the sur- usual. the atmosphere, while over the last few face. This discrepancy is very impor- Again, based on what I have just re- years models can describe, albeit inad- tant because it tends to undermine a counted, this is disingenuous at best. I equately, the atmosphere, land surface, key assumption supporting the warm- think a fairminded person would find it oceans, sea ice, and other variables. ing hypothesis—that more rapid warm- horribly misleading and inaccurate. But greater complexity does not ing should occur in the troposphere Another serious model limitation mean more accurate results. In fact, than at the surface, creating the so- concerns the interaction of clouds and the more variables scientists incor- called greenhouse ‘‘fingerprint.’’ But water vapor with the climate system. porate, the more uncertainties arise. the National Research Council believes Dr. Richard S. Lindzen, professor of Dr. Syukuro Manabe, who helped cre- real-world temperature observations meteorology at MIT, reports of ‘‘ter- ate the first climate model that cou- tell a different story. rible errors about clouds in all the

VerDate Aug 04 2004 02:34 May 25, 2005 Jkt 039060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G24MY6.057 S24PT1 May 24, 2005 CONGRESSIONAL RECORD — SENATE S5839 models.’’ He noted that these errors pletely the reliability of any climate ‘‘The inputs needed to project climate ‘‘make it impossible to predict the cli- models.’’ for the next 100 years, as is typically mate sensitivity because the sensi- Another issue affecting model reli- attempted, are unknowable. Human tivity of the models depends primarily ability is the relative lack of available emissions of greenhouse gases and on water vapor and clouds. Moreover, if climate data, something the National aerosols will be determined by the clouds are wrong,’’ Dr. Lindzen said, Research Council addressed in 2001. Ac- rates of population and economic ‘‘there’s no way you can get water cording to the NRC, ‘‘[a] major limita- growth and technological change. Nei- vapor right. They’re both intimately tion of these model forecasts for use ther of these is predictable for more tied to each other.’’ around the world is the paucity of data than a short period into the future.’’ In fact, water vapor and clouds are available to evaluate the ability of Put simply, computer model simula- the main absorbers of infrared radi- coupled models to simulate important tions cannot prove that greenhouse gas ation in the atmosphere. Even if all aspects of past climate.’’ emissions will cause catastrophic glob- other greenhouse gases, including car- There is plenty of evidence to sup- al warming. Again, here’s the National bon dioxide, were to disappear, we port this conclusion. Consider, for ex- Academy of Sciences: ‘‘The fact that would still be left with over 98 percent ample, that most of the surface tem- the magnitude of the observed warming of the current greenhouse effect. But perature record covers less than 50 is large in comparison to natural varia- according to Dr. Lindzen, ‘‘the way years and only a few stations are as bility as simulated in climate models current models handle factors such as much as 100 years old. The only reli- is suggestive of such a linkage, but it clouds and water vapor is disturbingly able data come from earth-orbiting does not constitute proof of one be- arbitrary. In many instances the un- satellites that survey the entire atmos- cause—and this is a point I want to em- derlying physics is simply not known.’’ phere. Notably, while these tempera- phasize—the model simulations could Dr. Lindzen notes that this is a sig- ture measurements agree with those be deficient in natural variability on nificant flaw, because ‘‘a small change taken by weather balloons, they dis- the decadal to century time scale.’’ in cloud cover can strongly affect the agree considerably with the surface It’s clear that climate models, even response to carbon dioxide.’’ He further record. with increasing levels of sophistica- notes, ‘‘Current models all predict that There is also concern of an upward tion, still contain a number of critical warmer climates will be accompanied bias in the surface temperature record, shortcomings. With that in mind, pol- by increasing humidity at all levels.’’ caused by the ‘‘urban heat island ef- icymakers should reject ridiculous Such behavior ‘‘is an artifact of the fect.’’ Most meteorological stations in statements that essentially equate cli- models since they have neither the Western Europe and eastern North mate model runs with scientific truth. physics nor the numerical accuracy to America are located at airports on the As I discussed today, climate mod- deal with water vapor.’’ edge of cities, which have been envel- eling is in its infancy. It cannot predict I think sometimes you have to look oped by urban expansion. In the May future temperatures with reasonable at the science and the contradictions, 30, 2003, issue of Remote Sensing of En- certainty that these predictions are ac- and even if we don’t thoroughly under- vironment, David Streutker, a Rice curate. The physical world is exceed- stand what these people are saying, the University researcher, found an in- ingly complex, and the more complex fact is, they contradict each other. crease in the Houston urban heat is- the models, the more potential errors Sometimes you have to go back and land effect of nearly a full degree Cel- are introduced into the models. We un- look at reality. If they say the increase sius between 1987 and 1999. This study derstand little about how to accurately in the use of carbon dioxide and the confirmed research published in the model the troposphere and about the presence of it is the major thing caus- March 2001 issue of Australian Mete- role of aerosols, clouds and water ing anthropogenic gases and global orological Magazine, which docu- vapor. Moreover, there are enormous warming temperatures, look at what mented a significant heat island effect data gaps in the very short tempera- happened right after the war. After the even in small towns. ture records that we have. And surface war, they increased the use of CO2 by 85 Although climate modelers have data often conflict with more accurate percent. You would think that would made adjustments to compensate for balloon and satellite data. precipitate a warmer period, but it the urban heat island effect, other re- Models can enhance scientists’ under- didn’t. It precipitated a cooling period. searchers have shown such adjustments standing of the climate system, but, at When you get back to the arguments are inadequate. University of Maryland least at this point, cannot possibly and discrepancies, they agree there are researchers Eugenia Kalnay and Ming serve as a rational basis for policy- problems. Cai, in Nature magazine, concluded making. It seems foolish in the ex- Along with water vapor and clouds, that the effect of urbanization and treme to undermine America’s eco- aerosols, or particles from processes land-use changes on U.S. average tem- nomic competitiveness with policies such as dust storms, forest fires, the peratures is at least twice as large as based on computer projections about use of fossil fuels, and volcanic erup- previously estimated. what the world will look like in 100 tions, represent another major uncer- Finally, to expand on a point I raised years. In short, we have no idea what tainty in climate modeling. To be sure, earlier, climate models are helpful in the world will look like in 20 years, or there is limited knowledge of how creating so-called ‘‘climate scenarios.’’ even 10 years. aerosols influence the climate system. These scenarios help scientists describe So this concludes the fourth of the This, said the National Academy of how the climate system might evolve. pillars of climate alarmists, hopefully Sciences, represents ‘‘a large source of To arrive at a particular scenario, sci- just to show the science is flawed. uncertainty about future climate entists rely on model-driven assump- I think it is clear, as I mentioned a change.’’ tions about future levels of economic minute ago, that the science is not Further, the Strategic Plan of the growth, population growth, greenhouse there. Since 1999, the old argument of U.S. Climate Change Science Program, gas emissions, and other factors. How- Michael Mann, the guy who invented CCSP, which was reviewed and en- ever, as with the IPCC, these assump- the hockey-stick theory, where he was dorsed by the National Research Coun- tions can create wildly exaggerated measuring the Earth’s temperatures, cil, concluded that the ‘‘poorly under- scenarios that, to put it mildly, have we come into the 20th century—and stood impact of aerosols on the forma- little scientific merit. In 2003, sci- that is the blade on the hockey stick— tion of both water droplets and ice entists with the Federal Climate he intentionally left out the fact that crystals in clouds also results in large Change Science Program agreed that between the years 700 A.D. and 1100 uncertainties in the ability to project potential environmental, economic, A.D., there is another blade on the climate changes.’’ and technological developments ‘‘are hockey stick that went up the other Climate researcher and IPCC re- unpredictable over the long time-scales way and temperatures were warmer viewer Dr. Vincent Gray reached an relevant for climate research.’’ than they are today. even stronger conclusion, stating that William O’Keefe and Jeff Keuter of If you read the Wharton Econo- ‘‘the effects of aerosols, and their un- the George C. Marshall Institute reiter- metrics Survey, you will realize what certainties, are such as to nullify com- ated this point recently. As they wrote, will happen to America if we were to

VerDate Aug 04 2004 05:10 May 25, 2005 Jkt 039060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\A24MY6.014 S24PT1 S5840 CONGRESSIONAL RECORD — SENATE May 24, 2005 sign on to this, the economic damage stem cell policy. When President Bush tilization. When a woman who has been we would have to sustain, the fact it announced his policy, the administra- a donor of these eggs notifies that they would double the cost of energy, double tion said that 78 stem cells lines were are no longer wanted, that she is not the cost of gasoline to run our cars, eligible for federally funded research, going to use them—maybe she has al- and it would cost the average Amer- meaning they had to be derived before ready had a child or two and does not ican family $2,700, and you have to ask the totally arbitrary date and time of need these embryos—that person can the question: If the science is not real August 9, 2001, at 9 p.m. Why it was give permission to discard them. Why and it would inflict that much danger, permissible to use stem cell lines de- should that person not be able to give what is the reason we are doing it? rived before 9 p.m. but not at 9:01 or permission to allow them to be used by I think we can find the answer in 9:05 p.m. has always eluded me. Again, our top scientists for stem cell re- quoting from Margot Wallstrom. Mar- it is just an arbitrary time and date. search that could then save other got Wallstrom is the European Union’s The administration said there were lives? That is what some people are Environment Commissioner. She states 78 stem cell lines, but now we know asking us to do—just throw them away, that Kyoto is not about climate today that only 22 of those are avail- do not let them be used for research change, it is ‘‘about leveling the play- able for research, not nearly enough to that could save human suffering and ing field for big businesses worldwide.’’ reflect the genetic diversity that sci- save human lives. To this Senator, that One of your favorite people, I am entists need. But more importantly, all simply does not make any sense. sure, French President Jacques Chirac, 22 stem cell lines—all 22—that are So as I said, we have strict ethical in a speech during The Hague in 2000, available under the President’s policy guidelines that are set up so that they said that Kyoto represents ‘‘the first are contaminated with mouse feeder cannot be used for cloning, they cannot component of an authentic global gov- cells, making them useless for humans. be used for other things; only to derive ernance.’’ So the President’s policy is not a way the stem cells. That is all. If there is a I think we have had an opportunity forward; it is, indeed, a dead-end street. person who can give the authority to discuss this over and over, and it is It offers only false hope to the millions right now to the in vitro fertilization somewhat warming to me to realize of people across this country who are that things are not getting that much clinic to discard them, why should that suffering from diseases that could be person not have the right to say, No, warmer, and if that is happening, the potentially cured or treated through science is not showing it is due to an- use those frozen embryos to derive stem cell research. stem cells so that someone with a spi- thropogenic gases. We need a policy that offers true, Consequently, we as policymakers, nal cord injury might walk again, so meaningful hope to these patients and have to look at this and be sure before that someone with ALS can escape the their loved ones. That is why Senator we make any rash decisions that the death sentence, so that someone with SPECTER and I, along with Senators science is there. Clearly, the science is Parkinson’s can be returned to normal HATCH, FEINSTEIN, SMITH, and KEN- not there. functioning? Mr. President, I yield the floor and NEDY, introduced a companion bill to The House performed a great public suggest the absence of a quorum. the Castle-DeGette legislation that service today. I thank both sides of the The PRESIDING OFFICER. The just passed the House. Our bill expands aisle, Republicans and Democrats, who clerk will call the roll. the number of stem cell lines that fed- stepped up and voted for this bill. By The assistant legislative clerk pro- erally funded scientists can study by passing the Castle-DeGette bill, they ceeded to call the roll. lifting the arbitrary eligibility date of have given hope to millions of suffering Mr. HARKIN. Mr. President, I ask August 9, 2001. humans that we will indeed proceed unanimous consent that the order for Under our legislation, all stem cell with stem cell research that will al- the quorum call be rescinded. lines would be eligible for Federal re- leviate their suffering. It is now time The PRESIDING OFFICER. Without search regardless of the date they were for the Senate to act. derived, as long as they met strict eth- objection, it is so ordered. So together with Senator SPECTER, STEM CELL RESEARCH ical requirements. we are going to urge the majority lead- Since August of 2001, scientists have Mr. HARKIN. Mr. President, the er to bring up the bill as soon as pos- made great strides and great advances House of Representatives just minutes sible and let us have a vote in the Sen- in deriving stem cell lines. Many of the ago took a historic stand on behalf of ate and get this bill to the President so new lines were grown without mouse the millions of Americans who can ben- we can move ahead with embryonic feeder cells. So I ask, should not our efit from the enormous promise of stem stem cell research in this country. top scientists be studying those lines cell research. By a vote of 238 yeas to I yield the floor, and I suggest the ab- that have great potential and which 194 nays, the House passed H.R. 810. I sence of a quorum. congratulate both Congressman CAS- could be used to alleviate human suf- The PRESIDING OFFICER. The TLE, a Republican from Delaware, and fering, instead of being limited to the clerk will call the roll. Congresswoman DEGETTE, a Democrat 22 cell lines contaminated with mouse The assistant legislative clerk pro- from Colorado, who led a bipartisan ef- cells that will never be used in hu- ceeded to call the roll. fort in this regard to have this very mans? historic vote in the House of Rep- We do not require our astronomers to Mr. FRIST. I ask unanimous consent resentatives. explore the heavens with 19th century that the order for the quorum call be Indeed, a bipartisan majority re- telescopes. We do not require our ge- rescinded. jected the restrictive policies of this ologists to study the Earth with a tape The PRESIDING OFFICER. Without administration and voted to expand the measure. If we are serious about real- objection, it is so ordered. number of stem cell lines that are eli- izing the promise of stem cell research, Mr. FRIST. I ask unanimous consent gible for federally funded research. In our biomedical researchers need access that when the Senate resumes consid- doing so, they have brought new hope to the best stem cell lines available. eration of the Owen nomination tomor- to Americans who suffer from diseases I also emphasize that none of the ad- row morning, the time until 12 noon be such as Parkinson’s and juvenile diabe- ditional lines would require the cre- equally divided between the two lead- tes, ALS, as well as spinal cord inju- ation of any new embryos. Instead, ers or their designees; provided further ries. these lines could be derived from any of that at noon, all time be expired under Now it is up to us in the Senate to the more than 400,000 embryos that re- rule XXII and the Senate proceed to pass the same bill without amendments main from fertility treatments and the vote on the confirmation of the so we can send it to the President’s will otherwise be discarded. We are nomination with no intervening action desk as soon as possible. The American talking about embryos that are going or debate; and provided further, fol- people cannot afford to wait any longer to be thrown away, legally. Should we lowing that vote, the President be im- for our top scientists to realize the full not use them instead to ease human mediately notified of the Senate’s ac- potential of stem cell research. suffering? tion. Regrettably, research has been sty- Think about this: We have 400,000 fro- The PRESIDING OFFICER. Without mied and slowed under the President’s zen embryos left over from in vitro fer- objection, it is so ordered.

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