E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 108 CONGRESS, FIRST SESSION

Vol. 149 WASHINGTON, MONDAY, MARCH 3, 2003 No. 33 Senate The Senate met at 12:02 p.m., and was APPOINTMENT OF ACTING U.S. Court of Federal Claims. I thank called to order by the Honorable LARRY PRESIDENT PRO TEMPORE all Members for their attention. E. CRAIG, a Senator from the State of The PRESIDING OFFICER. The f Idaho. clerk will please read a communication RESERVATION OF LEADER TIME The PRESIDING OFFICER. Today’s to the Senate from the President pro prayer will be offered by our guest tempore (Mr. STEVENS). The PRESIDING OFFICER. Under Chaplain, Norris A. Keirn, National The assistant legislative clerk read the previous order, the leadership time Chaplain of the American Legion. the following letter: is reserved. PRAYER U.S. SENATE, f The guest chaplain offered the fol- PRESIDENT PRO TEMPORE, EXECUTIVE SESSION lowing prayer: Washington, DC, March 3, 2003. Eternal Father, You have been our To the Senate: Under the provisions of rule I, paragraph 3, shield and strength from the birth of of the Standing Rules of the Senate, I hereby NOMINATION OF MIGUEL A. our Nation to this present day. Our appoint the Honorable LARRY E. CRAIG, a ESTRADA, OF VIRGINIA, TO BE homeland has been preserved in the Senator from the State of Idaho, to perform UNITED STATES CIRCUIT JUDGE palm of Your hand. By inspiration of the duties of the Chair. FOR THE DISTRICT OF COLUM- Your Holy Spirit, we have continu- TED STEVENS, BIA CIRCUIT (Resumed) President pro tempore. ously moved to develop a more perfect The PRESIDING OFFICER. Under union that would mirror Your divine Mr. CRAIG thereupon assumed the the previous order, the Senate will now purpose. chair as Acting President pro tempore. go into executive session and resume Through Your guidance, these Sen- (Mr. CHAMBLISS assumed the consideration of executive calendar No. ators have been raised to make laws chair.) 21, which the clerk will report. and direct efforts for the enduring bet- f The assistant legislative clerk read terment of the peoples of this Nation the nomination of Miguel A. Estrada, RECOGNITION OF THE ACTING and the world. Grant great wisdom so of Virginia, to be United States Circuit MAJORITY LEADER that Your righteous purposes would be Judge for the District of Columbia Cir- fulfilled. Afford each one the strength The PRESIDING OFFICER. The Sen- cuit. of will to be diligent dispensers of ator from Idaho is recognized. The PRESIDING OFFICER. The as- truth and justice. Bless them with soli- f sistant minority leader is recognized. darity that transcends personal views Mr. REID. The manager of the bill is and political affiliations. Grant a bi- SCHEDULE on the floor and the acting leader, Sen- partisan unity that would bring You Mr. CRAIG. Mr. President, the Sen- ator CRAIG, is also here. Senator BINGA- glory! ate will spend the day in executive ses- MAN is here and wishes to speak. I un- Bless also those who defend this de- sion trying to reach an agreement for a derstand Senator CRAIG wishes to mocracy and place themselves in time to vote on the Estrada nomina- speak for about 15 minutes. I wonder if harm’s way. Dispatch Your angels to tion. The nomination has been pending I may direct attention to the distin- protect and to bring them home with before the full Senate since February 5. guished chairman of the Judiciary victory over the evil forces that would The majority leader has attempted on Committee, Chairman HATCH. Senator attempt to destroy freedom. Enable a number of occasions to reach a time BINGAMAN is here and I would like to them to break the bondage of oppres- certain for this nomination. Each time see if we can get him in the queue to sion as You have so graciously granted there has been an objection by the speak after Senator CRAIG. I know the in the past. In the Name of our Lord we other side of the aisle. Senator from Utah is managing this pray, Amen. If Members desire to speak, they are bill and, of course, I am sure he wishes f encouraged to do so during today’s ses- to speak. I wonder if he has any objec- PLEDGE OF ALLEGIANCE sion. tion to Mr. BINGAMAN speaking. The Honorable LARRY E. CRAIG led As a reminder to all Members, there Mr. HATCH. I have no objection. the Pledge of Allegiance, as follows: will be a rollcall vote today beginning Mr. REID. He only wants about 5 to I pledge allegiance to the Flag of the at 5:30. Under the unanimous consent 10 minutes. United States of America, and to the Repub- agreement reached last Thursday, the Mr. HATCH. I will have no objection, lic for which it stands, one nation under God, vote will be on the confirmation of and I have no objection to Senator indivisible, with liberty and justice for all. Marian Blank Horn to serve on the CRAIG speaking as well.

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Jan 31 2003 02:04 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\CR\FM\A03MR6.000 S03PT1 S2992 CONGRESSIONAL RECORD — SENATE March 3, 2003 Mr. REID. Mr. President, I ask unan- saying it watches them at the border. ity. The most recent Hynix bailout imous consent that Senator CRAIG be Then my bill requires a cash deposit of came 2 months ago when the Govern- recognized for 15 minutes and then estimated countervailing duties in the ment provided $4.1 billion in debt relief Senator BINGAMAN for up to 10 minutes. 80-percent range. That is a serious step. and another $4.1 billion in subsidy. The PRESIDING OFFICER. Without Yet it is a legal and an appropriate Hynix only had $2.4 billion in sales last objection, it is so ordered. step and, yes, it is actionable under the year. It just does not add up. Take a The Senator from Idaho is recog- WTO, but it focuses us as a country on chalkboard out and outline that for the nized. the problem we are facing with this world to see, and the world will say MASSIVE GOVERNMENT SUBSIDIES TO HYNIX kind of competition that I believe is il- that is a Government-controlled, Gov- SEMICONDUCTOR legal and is heavily Government sup- ernment-subsidized plant that is not Mr. CRAIG. Mr. President, I rise ported. even making a profit and, in fact, is today to visit with my colleagues I am angry, and I say that losing large amounts of money. about something that is going on in straightforwardly, at the Government Hynix will use the debt forgiveness to Idaho and across this Nation at this of Korea and their continued unrelent- continue to expand capacity. Just last moment that is critical to our econ- ing campaign of illegal subsidies to week—this is almost like a slap in the omy, and especially critical to the Hynix in an attempt to bring our do- face to the American workforce and to economy of the State of Idaho. The sit- mestic producer not only to its knees, Micron and its companies—just last uation that a company in Idaho finds but to destroy it altogether and then week Hynix announced it would begin itself in at this moment has resulted in dominate the semiconductor industry. work on new fabrication lines to its need to lay off 10 percent of its Since October of 2000, the Korean produce D-RAMs on state-of-the-art 300 workforce because of actions taken by Government, acting through the banks mm wafers which will result in even the Korean Government to prop up a it owns and controls, has provided an more subsidized D-RAM from Hynix. bankrupt competitor of Micron. incredible $16 billion—let me repeat They cannot make a profit, they are Micron is a company in Idaho that that—the banks of Korea have provided being subsidized heavily, and they are has been in place and is the world’s sec- an incredible $16 billion in subsidies to going to build more capacity. That ond largest producer of memory chips. Hynix, the Korean producer of D-RAM does not make any sense at all, but As a result of the Korean Government’s semiconductors. How much has our then again putting a lot of people out propping up of the Hynix Semicon- Federal Government subsidized Mi- of work in Idaho does not make any ductor Corporation, the market now is cron? Nada; not one bit. sense either when we are asking a com- tremendously softened and layoffs are I think it is time we at least put up pany to compete against this producer occurring. a barrier and test the international at well below market prices. In the mid-1980s, Micron almost went trade community to understand wheth- Now we read in the papers that Hynix out of business because of dumping by er this is or is not an illegal action. We and other Hyundai companies are being Japanese companies. At that time, I have that argument before the ITC at investigated for illegally transferring acted in concert with the Bush Govern- this moment. We hope there is a find- $500 million to North Korea in 2000. If ment. President Bush at that time ing soon. But until then, I hope this that is true, that is a real slap in the worked with the Department of Com- Senate and the Finance Committee can face of Americans and the American merce to put duties on that offset, but come on point to recognize the critical worker. Of course, they did that for lu- eventually that overrode that impact environment that is being created by a crative contracts. It did so with the and it allowed that company, Micron, company such as Hynix and a govern- help of South Korean banks and with to become the second larger of the ment backing them that strictly sup- the approval of the President of South semiconductor companies in the world ports them for the purpose of domi- Korea. I say that again. North Korea is today. nating a world market and keeping its being investigated for illegal actions Micron, as I mentioned, is critical to people employed. with that country. This is the country the technological base of the United In the 1990s, Government-controlled that plans to reactivate its nuclear States. It employs 13,000 people—in- banks in Korea lent heavily to Hynix arms program and, we are now told, valuable high-tech jobs in the U.S. and at cheap rates, and Hynix built up mas- has just started one of its reactors. I in other parts of the world. It produces sive capacity, over 90 percent of which hope the world will not tolerate this D-RAM semiconductors, or random it exports. Ninety percent of what it situation, and I hope our Senate will memory chips, a key component in produces in Korea leaves for the world speak up to the issue. countless electronic systems, from per- market. Korea is a developed country. It is sonal computers to satellites to mili- The Government of Korea built up one of the most developed economies in tary command and control systems. this company with one goal in mind: to Asia. The Korean Government has ab- Most importantly, Micron is the only create an export powerhouse. It suc- solutely no business keeping a com- remaining producer of D-RAM chips in ceeded, and Hynix became the No. 3 pany going when it would otherwise be the United States. There used to be a producer of D-RAM chips in the world. bankrupt, and there is no question half dozen of these companies a decade When Hynix became unable to repay about it. Like I said, pull a chalkboard ago, but they all left the business in the debt coming due in 2001, the Gov- out, and run those figures. You have large part due to the unfair trade prac- ernment of Korea stepped in and essen- one conclusion: Unless your banker or tices of other countries such as and in- tially wiped out the debt by providing your best friend—and in this instance, cluding Korea. over $16 billion in debt forgiveness and the bank is the best friend. The Gov- Now I believe I must do what I can to debt restructuring over the past 21⁄2 ernment owns the bank and the bank address this new situation that is cost- years. There is no rational economic owns the company and you bail them ing U.S. jobs in the United States, is justification for Government support out for $16 billion. The purpose is obvi- weakening our technology base, and is for Hynix. Hynix has been unable to ous. having a substantial impact on the repay its debt, and it has lost $8 billion The purpose of my legislation is to State of Idaho. over the past 3 years. The subsidies it urge the Department of Commerce and My bill, introduced last week, S. 492, has received have permitted Hynix to other U.S. trade agencies to do every- reflects just how far, in my opinion, stay in business and continue to run all thing in their power to fix this prob- the Government of Korea has pushed its D-RAM plants at full capacity, lem. That is what our trade laws are with what I call illegal subsidies, and it flooding the market with subsidized for. Do I like doing what I am doing? reflects just how far I think we must product. Absolutely not. Will I apologize for try- go to respond to that situation. They cannot make money. They have ing to protect an American company My bill would impose a duty on lost money, $8 billion over the last 3 and a workforce against a heavily sub- Hynix semiconductors as they come years; and yet the Government still sidized dominating company that into the country. My bill ‘‘suspends liq- dumps money into them, and they are wants to control the world market- uidation’’ for these Korean semi- dumping money into them at a time place with an undercost product? No, I conductors, which is another way of when they are out building new capac- will not apologize for that whatsoever.

VerDate Jan 31 2003 01:24 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.003 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S2993 Is the action I take if the Senate and oil prices are now hovering at lev- The United States depends on Ven- were to pass my bill and were it to be- els that we have not seen since the gulf ezuela for substantial volumes of gaso- come law actionable at the WTO? Abso- war. High energy prices such as this do line imports as well as oil imports. A lutely, and it ought to be to test hurt consumers and the economy. The 10-week general strike in Venezuela whether what we have done is appro- question is, What has the administra- has resulted in a sharp decrease in Ven- priate or whether, in fact, what Korea tion done to minimize this economic ezuela’s exports to the United States. is doing at this moment is illegal, as I pain that Americans are feeling? The strike comes at a time when mar- believe it is, and as I think the world The average consumer may not know kets are already tight. marketplace would believe and the what the price of oil is on a daily basis, On Tuesday, in the Committee on En- World Trade Organization. but the average consumer does know ergy and Natural Resources, we heard Once again, the ITC is reviewing this. the price of gasoline at the pump, and testimony from the Secretary of En- We hope by late March that decision American consumers have had to bear ergy that everything was getting bet- will be out there. The European Union the brunt of several weeks of very high ter in Venezuela, that the crisis was is already reviewing Hynix. I am told gasoline prices while Saudi Arabia has passing. Recent events, though, sug- they are finding them in violation. been ramping up their production to gest that this may not be the case. A Why should American workers, Idaho maintain, if not to increase, their mar- key factor in the uncertainty that is workers, a great American company, ket share. keeping prices up is the uncertainty one of the great American success sto- I do not know the connection be- surrounding the administration’s in- tween our national policy and Saudi ries, have to shut itself down and put tentions about using the SPR. A clear Arabia’s maintenance of market share. itself in financial stress because it is statement from the administration of That has not been explained to me. But being dumped on in a world market? the conditions under which oil would last fall, after the elections, when Those are the problems we face. That be released from the SPR would have crude supply was first impacted and is why I have introduced the legisla- an immediate effect on lowering oil prices began to rise, the administration tion. My colleague, Senator CRAPO, has prices. was urged to act to do a test sale of the introduced a resolution and has spoken A cryptic phrase that is used by the Strategic Petroleum Reserve oil by to it. On the House side, Congressman administration is that they would re- several oil analysts. UTCH TTER lease oil from the SPR only in the case B O speaks to it. Clearly, A Strategic Petroleum Reserve re- Idaho and Idaho’s economy will take a lease on this small scale would have of ‘‘a severe supply disruption.’’ But tremendous hit because the Koreans been appropriate then. It would have since the administration will not are illegally playing the world trade been a simple statement outlining the elaborate on what a severe supply dis- game, heavily subsidized by their administration’s SPR policy, and it ruption entails, the suspicion is that banks and by their government. would have helped to calm jittery mar- they will never release oil from SPR I yield the floor. kets, which is certainly what we have absent an all out war in the Persian The PRESIDING OFFICER. Under seen in recent days and weeks. The sit- Gulf that involves major damage to the previous unanimous consent, the uation we now face, in which the cur- Saudi oilfields. For that reason, the Senator from New Mexico is recognized tailment of oil supplies is hurting our psychology of the market largely dis- for 5 minutes. national economic security, is pre- counts the existence of the Strategic The Senator from Utah. cisely what we foresaw when Congress Petroleum Reserve at this time, and Mr. HATCH. Mr. President, I ask created the Strategic Petroleum Re- consumers are paying all-time high unanimous consent that I be given 1 serve. The curtailment has been prices at the pump. minute. I do have the approval of the months in the making. The current cri- Gas prices have risen more than 30 distinguished Senator from New Mex- sis in Venezuela has pushed the supply cents a gallon since December. Gas ico. situation to a level that is beyond ‘‘se- prices are high in part because our The PRESIDING OFFICER. Without vere’’. crude stocks are down. We are oper- objection, it is so ordered. The Strategic Petroleum Reserve was ating at minimum operating levels in Mr. HATCH. Mr. President, I com- established in 1975, in direct response the refining sector. With high crude pliment my colleague from Idaho. He to the Arab oil embargo. Today, the prices, increased refining output means has called it exactly the way it is. Strategic Petroleum Reserve contains even higher prices at the pump. What is going on is a matter of unfair a total of 599.3 million barrels, almost Demand for gasoline is high as we competition. It is a matter of improper 60 days’ worth of imports. When this head into the driving season. Since governmental subsidization in com- body considered the Omnibus Appro- most spare capacity in the market is in petition with a company that is doing priations Act for 2003, I offered an the Middle East, it is going to take it all without government subsidiza- amendment to extend our authority to awhile to get the oil we need. It does tion. I personally thank him for his use the SPR. That authority was set to not take much to send prices spiking good remarks; I agree with them and I expire later this year. I am pleased again. Cold weather can do it. Disrup- would like to be associated with them. that the Senate adopted that provision tion in supply from Venezuela or Nige- Mr. CRAIG. I thank my colleague. and that as a result we have another 5 ria could do it. War in the gulf could do The PRESIDING OFFICER. The Sen- years of authority during which we can it. ator from New Mexico. use SPR as a response to oil supply cri- My colleagues have listened to many LACK OF SPR POLICY ses. speeches over the last year bemoaning Mr. BINGAMAN. Mr. President, I ap- However, the authority was enacted the fact we do not have an energy pol- preciate the chance to speak for a few for a reason. There is a supply problem. icy. I am not going to ask that we minutes about the Strategic Petroleum We have known this for some time come to closure today on a universal, Reserve and the lack of action by the now. In December, 3 million barrels of all-encompassing, comprehensive en- administration to deal with the prob- Venezuelan crude came off the market ergy policy. I would settle for a single lems we see in our oil markets today. altogether. This has had a larger sup- action by the administration. That What we are seeing by the administra- ply impact than removing all Iraqi would be a clearly enunciated and un- tion is not bad policy, as such. What it crude will have under a war scenario, derstandable policy for when we will is is a lack of policy for how we will which we all, I believe, consider to be use the Strategic Petroleum Reserve. use the Strategic Petroleum Reserve at very likely. The administration may be suffi- a critical time such as the one we are Prior to December 2002, Venezuela ciently captive to a minimalist ide- in today. This indecision, this failure was one of the world’s five largest oil ology in dealing with this oil crisis, to articulate a policy, is hurting con- exporters. Its net exports averaged 2.4 that they never actually plan to use sumers and it is hurting our economy. million barrels per day. During the the Strategic Petroleum Reserve, and I We have an oil supply crisis on our first 9 months of 2002, oil from Ven- hope very much that is not the case. hands right now. Oil prices hit $40 a ezuela supplied approximately 14 per- I call on the President to give us a barrel last week. Domestic crude and cent of U.S. net oil imports, or about clear and understandable signal as to product stocks are at an all-time low 1.5 million barrels per day. what his policy is. Merely saying we

VerDate Jan 31 2003 01:24 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.005 S03PT1 S2994 CONGRESSIONAL RECORD — SENATE March 3, 2003 will wait for a severe supply disruption about Mr. Estrada’s record before a vote oc- formation about Mr. Estrada have is not an adequate response. Consumers curs. As I stated in my letter of February 12 availed themselves of any of these deserve more. The costs to our econ- to Senator Daschle and Senator Leahy, we sources. This brings to mind the story believe that the Senate has had sufficient omy may become unacceptable. It cer- time and possesses sufficient information to of the young man who killed both his tainly is a severe issue weighing down vote on Miguel Estrada. More important, a parents, then threw himself on the our economy at the present time. majority of Senators have indicated that mercy of the court because he was an I yield the floor and suggest the ab- they posses sufficient information and would orphan. Here, my Democratic col- sence of a quorum. vote to confirm him. leagues who are complaining the loud- The PRESIDING OFFICER. The But if some Senators believe they must est about not having enough informa- clerk will call the roll. have more information before they will end the filibuster of this nomination, we respect- tion about Mr. Estrada are the very The assistant legislative clerk pro- fully suggest that there are three different ones who are apparently not interested ceeded to call the roll. and important sources of information that in finding out more about him through Mr. HATCH. Mr. President, I ask have been and remain available and that readily available means. Meanwhile, unanimous consent that the order for would appropriately accommodate the re- the filibuster goes on and on. the quorum call be rescinded. quest for additional information. We ask Another significant letter was cir- The PRESIDING OFFICER. Without that you encourage interested Senators to culated on Wednesday of last week, objection, it is so ordered. avail themselves of these sources as soon as possible. this one signed by more than 50 of our MEASURE PLACED ON CALENDAR—H.R. 534 First, as I have written to you previously, colleagues in the House. This, too, is a Mr. HATCH. Mr. President, as in leg- individual Senators who wish to meet with powerful letter. Let me read the letter: islative session, I understand H.R. 534 Miguel Estrada may and should do so imme- WASHINGTON, DC, is at the desk and is due for its second diately. We continue to believe that such February 26, 2003. meetings could be very useful to Senators reading. Senator TOM DASCHLE, who wish to learn more about Mr. Estrada’s Senator HARRY REID, The PRESIDING OFFICER. The Sen- record and character. Senator PATRICK LEAHY, ator is correct. Second, Senators who have additional U.S. Senate, Washington, DC. The clerk will read the title of the questions for Mr. Estrada should imme- DEAR SENATORS: It is our understanding diately pose such questions in writing to bill for the second time. that the major objection raised by the Sen- him. We propose that additional questions The assistant legislative clerk read ate Democratic Leadership and many mem- as follows: (in a reasonable number) be submitted in writing to Mr. Estrada by Friday, February bers of the Senate Democratic Caucus to the A bill (H.R. 534) to amend title 18, United 28. Mr. Estrada would endeavor to answer nomination of Miguel Estrada to the U.S. States Code, to prohibit human cloning. such questions in writing by Tuesday, March Court of Appeals for the District of Columbia Mr. HATCH. I object to further pro- 4. He would answer the questions forth- Circuit is that you have not been provided ceeding. rightly, appropriately, and in a manner con- sufficient information about his legal views. sistent with the traditional practice and ob- Specifically, we understand that you are op- The PRESIDING OFFICER. The ob- posing his nomination because of the Admin- jection having been heard, the bill will ligations of judicial nominees, as he has be- fore. istration’s failure to provide you with inter- be placed on the calendar. Third, Senators who wish to know more nal memoranda prepared by Mr. Estrada Mr. HATCH. Mr. President, I ask we about Mr. Estrada’s performance and ap- while he served as Assistant to the Solicitor now go back into executive session. proach when working in the United States General. The PRESIDENT pro tempore. The Government—and, in particular, how that We are deeply concerned that your objec- Senate is in executive session. relates to his possible future performance as tion to the Administration’s refusal to Mr. HATCH. Mr. President, it has a Circuit Judge—should immediately ask in produce these memoranda not only breaks writing for the views of the Solicitors Gen- with precedent but is also a threat to the now been nearly 4 weeks since we eral, United States Attorney, and Judges for ability of Executive Branch Officials, mem- began debating the nomination of whom Mr. Estrada worked and ask them to bers of the Judiciary, and Members of Con- Miguel Estrada to the U.S. Court of respond by Tuesday, March 4. In particular, gress to receive confidential legal advice. Appeals for the District of Columbia interested Senators could immediately send As you are no doubt aware, the Clinton Ad- Circuit. We have heard all of the argu- a joint letter to each of the following indi- ministration memoranda you are requesting ments for and against his nomination. viduals for whom Mr. Estrada has worked in in the case of Mr. Estrada were not requested What we have not heard is a good rea- the United States Government: Judge for the seven previous nominees to the Amalya Kearse, Justice Anthony Kennedy, son why this filibuster should con- Courts of Appeals who had worked in the So- former United States Attorney Otto licitor General’s office. Understandably, the tinue. We have not heard any good rea- Obermaier, former Solicitor General Ken improper appearance of a double standard for son why his nomination should not be Starr, former Solicitor General Drew Days, this particular nominee has been created. In brought for an up or down vote. former Solicitor General Walter Dellinger, addition, every living former Solicitor Gen- One of the reasons that some of my and former Solicitor General Seth Waxman. eral—Democrat and Republican—signed a Democratic colleagues say they oppose In our judgment, these men and women joint letter to the Senate Judiciary Com- Mr. Estrada is because he allegedly did could provide their views on Mr. Estrada’s mittee, stating that the memoranda request not answer their questions at his hear- background and suitability to be a Circuit would have a debilitating effect on the abil- Judge by March 4 without sacrificing the in- ing. I do find this complaint ity of the Department of Justice to represent tegrity of the decisionmaking processes of the United States before the Supreme Court. unpersuasive, particularly given that the Judiciary, United States Attorney’s of- Forcing the disclosure of confidential (1) the hearing was chaired by a Demo- fice, and Solicitor General officer. And their memoranda in this instance would do serious cratic Senator, (2) the hearing lasted views could assist Senators who seek more institutional harm to all three branches of all day, (3) Mr. Estrada answered ques- information about Mr. Estrada. government. For example, should legal tion after question on a broad variety We believe that these sources of informa- memoranda prepared for you by one of your tion, which have been available for some of topics, and (4) every committee staff be available for review by future sen- time, would readily accommodate the desire ators (or by the Administration) in the event member had the right to ask Mr. for additional information expressed by some Estrada follow-up questions in writing that the staff member were to be nominated Senators who have thus far supported the fil- or be considered to a judicial or other post? but only two did. ibuster of a vote on this nominee. We ask This appears to be the precedent you are at- Nevertheless, in a letter dated last that you encourage Senators who have ob- tempting to set. As we trust you understand, Thursday, February 27, 2003, White jected to the scheduling of a vote to avail such a precedent would no doubt impact the House Counsel Alberto Gonzales sent a themselves of these sources of information. type and quality of advice we seek and re- letter to all 100 Senators directing And we respectfully ask that the Senate vote ceive from our staff. up or down as soon as possible on Mr. We strongly urge you to reconsider your them to additional sources of informa- Estrada’s nomination, which has been pend- tion on Miguel Estrada. This is an im- objections and drop your request for the con- ing for nearly two years. fidential memoranda of the Clinton Justice portant letter, and I will take a mo- Please do not hesitate to contact me with Department. ment to read the letter: any questions. Sincerely, Mr. HATCH. Mr. President, I stood on DEAR SENATOR FRIST, SENATOR DASCHLE, ALBERTO R. GONZALES, SENATOR HATCH, AND SENATOR LEAHY: I write the Senate floor last week when the de- in connection with the nomination of Miguel Counsel to the President. bate on Mr. Estrada’s nomination en- Estrada. Some Democrat Senators have indi- Mr. HATCH. As far as I know, none of tered its third week, and I said that cated that they would like to know more the Senators who have sought more in- there is a simple solution to the logjam

VerDate Jan 31 2003 02:04 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.009 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S2995 that has become the Senate. It is a In the case of Old Chief v. United States that the Government may use straightforward solution that does not States, Mr. Estrada argued for the statements made in the course of plea require the release of confidential United States that the district court discussions to impeach a criminal de- memoranda or questionable claims properly exercised its discretion, in a fendant’s contrary testimony at trial, that Mr. Estrada failed to answer ques- prosecution of a convicted felon for when the defendant and his counsel ex- tions before the committee. The solu- possession of a firearm, to admit evi- pressly agreed before those statements tion is for Senators to vote on Mr. dence of the defendant’s prior felony were made that the government would Estrada’s nomination. Vote for him or conviction even though the defendant have the right to use them. He won this vote against him; do what your con- offered to stipulate to that fact. He case 7–2. science dictates. Just vote. narrowly lost that case by a 5–4 mar- In United States v. Alvarez-Sanchez, One reason I believe we are not vot- gin. Mr. Estrada argued for the United ing, and the filibuster continues, is be- The case of United States v. Gonzales States that a delay between a defend- cause our friends on the other side of dealt with 18 U.S.C. § 924(c), which pro- ant’s arrest on State narcotics charges the aisle know Mr. Estrada has enough vides that ‘‘[n]otwithstanding any and presentment to a Federal mag- votes to be confirmed to the Circuit other provision of law’’ prison terms istrate on subsequent Federal charges Court of Appeals for the District of Co- under the statute ‘‘shall [not] run con- did not require suppression of an incul- lumbia. currently with any other terms of im- patory statement to Federal agents I have mentioned before that Mr. prisonment.’’ Mr. Estrada argued on that was made while defendant was in Estrada has a substantial and impres- behalf of the United States that a custody on the State charges. He won sive record, despite the claims to the court may not order that a sentence this case 9–0. contrary of some of my Democratic imposed under § 924(c) is to run concur- The case of Powell v. Nevada consid- colleagues. rently with a State-law sentence that ered the rule of County of Riverside v. One very substantial part of his the defendant is already serving. He McLaughlin, which provides that a ju- record consists of the 15 cases he has won this case 7–2. dicial probable cause determination argued before the United States Su- In Montana v. Egelhoff, Mr. Estrada must be made within 48 hours of a preme Court. In each of these cases, a argued for the United States as amicus warrantless arrest. Mr. Estrada argued brief was filed that is publicly avail- curiae that the Due Process Clause on behalf of the United States as ami- able for everyone and anyone to re- does not bar a State form preventing a cus curiae that the rule did not apply view. And in each of these cases, there jury in a criminal case from consid- retroactively. The Supreme Court is a transcript of Mr. Estrada’s argu- ering evidence of the defendant’s vol- ruled against his position 7–2. ment before Supreme Court. untary intoxication in determining In NOW v. Scheidler, Mr. Estrada ar- The briefs and transcripts of each of whether he possessed the mental state gued on behalf of the United States as Mr. Estrada’s 15 Supreme Court cases required for the crime charge. He won amicus curiae that RICO does not re- are right here. As you can see, there is this case 5–4. quire proof that either the racket- In Degen v. United States, Mr. a very substantial record on Mr. eering enterprise or the predicate acts Estrada argued for the United States Estrada. I invite any one of my Demo- of racketeering were motivated by an that the district court had properly in- cratic colleagues who have not re- economic purpose. It just so happens viewed or acknowledged this record to voked the so-called fugitive disentitlement doctrine to bar the peti- that in this case, the defendant against do so. You can get a pretty good idea of whom Mr. Estrada argued was an abor- the cases he argued, the reasoning he tioner from contesting a civil for- feiture action. A unanimous Supreme tion protestor, and Mr. Estrada argued used, the legality that he cites, the law Court ruled against him in this case, on the same side as NOW. His position he applies—more than almost any which, of course, just goes to show that prevailed when an unanimous court other nominee for the Circuit Court of you can’t win them all. agreed with him. Appeals in the history of the country. Mr. Estrada did score a unanimous In Austin v. United States, Mr. But in case any of my Democratic victory in Citizens Bank v. Strumph. Estrada argued for the United States colleagues are finding themselves short In that case, Mr. Estrada argued on be- that the Eighth Amendment’s exces- on time these days—after all, perpet- half of the United States as amicus cu- sive fines clause does not apply to civil uating a filibuster does require a sub- riae that a bank’s temporary refusal to forfeiture proceedings. He lost this case stantial amount of effort—I want to pay a debt upon the debtor’s demand 9–0. spend a few moments on the cases Mr. was not an exercise of its setoff right Last but not least, in Deal v. United Estrada argued before the Supreme in violation of § 326 of the Bankruptcy States, Mr. Estrada argued for the Court. A look at these cases and the Code, which stays a creditor’s right of United States that a defendant who is significance of the legal issues argued setoff pending an orderly determina- convicted in a single proceeding of in them should dispel any notion that tion of the debtor’s and creditor’s multiple violations of 18 U.S.C. § 924(c) Mr. Estrada has no record. rights. is not subject to the statute’s provi- Let’s start with the 1999 case of The case of Reno v. Koray considered sions imposing a more severe sentence Strickler v. Greene, which Mr. Estrada 18 U.S.C. § 3585, which provides that a for a ‘‘second or subsequent convic- argued pro bono on behalf of a death criminal defendant generally must ‘‘be tion.’’ He won this case 6–3. row inmate. He argued that the Com- given credit toward the service of a What these cases show, Mr. Presi- monwealth of Virginia violated the term of imprisonment for any time he dent, is that in 6 years Mr. Estrada seminal Supreme Court case of Brady has spent in official detention prior to compiled an impressive record before v. Maryland by withholding material the date the sentence commences.’’ Mr. the Supreme Court. He argued 15 cases, exculpatory evidence. Although he Estrada argued for the United States winning 10 of them. In half of those spent hundreds of hours in his quest to that a Federal prisoner does not re- cases, he won in a unanimous decision. overturn Tommy Lee Strickler’s death ceive credit on his sentence for time he There can be no question that Mr. sentence, he lost the case by a 7–2 mar- spent released on bail. He won this Estrada has a record that anyone gin. cases 8–1. would be proud of by any standard. In another case, Richards v. Wis- In United States v. Robertson, Mr. Mr. President, I suggest the absence consin, Mr. Estrada argued on behalf of Estrada argued on behalf of the United of a quorum. the United States as amicus curiae States that the interstate movement of The PRESIDING OFFICER. The that it generally is reasonable for po- goods and people in connection with clerk will call the roll lice officers who have a warrant to the operation of a gold mine is suffi- The assistant legislative clerk pro- search a dwelling for evidence of drug cient to justify the conclusion that the ceeded to call the roll. trafficking, to enter the dwelling to activities of the gold mine affect inter- Mr. HARKIN. Mr. President, I ask execute the warrant without a prior state commerce within the meaning of unanimous consent that the order for announcement of their presence and the RICO statute. He won this case 9–0. the quorum call be rescinded. purpose. A unanimous Supreme Court In United States v. Mezzanatto, Mr. The PRESIDING OFFICER. Without agreed with him; he won 9–0. Estrada argued on behalf of the United objection, it is so ordered.

VerDate Jan 31 2003 02:04 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\CR\FM\A03MR6.005 S03PT1 S2996 CONGRESSIONAL RECORD — SENATE March 3, 2003 Mr. HARKIN. Mr. President, there let things come out on the floor so we can Allen Snyder, D.C. Circuit, never given a are a couple things I will speak about vote things up or down. vote by Republicans/not confirmed. during this period of time: One, I do On October 3, 2000, I said: Elena Kagen, D.C. Circuit, never given a want to address myself to the issue vote by Republicans/not confirmed. It is clear who is playing politics with Robert Cindrich, 3rd Circuit, never given a now before us; that is, the issue of judgeships. vote by Republicans/not confirmed. whether or not Miguel Estrada should The Republican leadership of the Senate is Stephen Orlofsky, 3rd Circuit, never given proceed to the District of Columbia playing the most bold-faced politics. It is not a vote by Republicans/not confirmed. Circuit Court of Appeals. Then I will alleged these nominees are not qualified; it Robert Raymar, 3rd Circuit, never given a talk a little while about the events is simply they were nominated by a Demo- vote by Republicans/not confirmed. cratic President. That is all. over the weekend as they pertain to James Beatty, 4th Circuit, never given a the looming war in Iraq. I have not heard one person on the vote by Republicans/not confirmed. But as pertains to Mr. Estrada, as Republican side tell me that Bonnie Andre Davis, 4th Circuit, never given a vote by Republicans/not confirmed. long as this person is in front of us on Campbell is not qualified to be a cir- cuit judge. Elizabeth Gibson, 4th Circuit, never given the floor of the Senate, as long as my a vote by Republicans/not confirmed. good friend from Utah keeps taking the Then during the month of October Roger Gregory, 4th Circuit, never given a floor to ask for a vote on Mr. Estrada, 2000, I brought up Bonnie Campbell’s vote by Republicans/confirmed ’01. this Senator will continue to take the nomination seven times on the floor. I J. Rich Leonard, 4th Circuit, never given a floor to continue to remind my good asked unanimous consent to go to it on vote by Republicans/not confirmed. friend from Utah of what happened to the executive calendar, and seven James Wynn, 4th Circuit, never given a times the Republican majority ob- vote by Republicans/not confirmed. Bonnie Campbell under the Clinton ad- H. Alston Johnson, 5th Circuit, never given ministration when the Republicans jected. My friend from Utah has talked a vote by Republicans/not confirmed. controlled the Judiciary Committee. Enrique Moreno, 5th Circuit, never given a My friend, the Senator from Utah about the Democrats’ double standard. vote by Republicans/not confirmed. said: My first instinct is to call that laugh- Jorge Rangel, 5th Circuit, never given a An up-or-down vote, that is all we ask. If able, but in reality, it is outrageous be- vote by Republicans/not confirmed. the Democrats have enough votes to defeat cause so many extremely well-qualified Eric Clay, 6th Circuit. Miguel Estrada, I am not going to complain Clinton nominees not only never got an Kent Markus, 6th Circuit, never given a about it. I might feel badly about it. I might up-or-down vote on the floor, they vote by Republicans/not confirmed. think it is the wrong thing to do, but they never got a vote on committee. In Kathleen McCree Lewis, 6th Circuit, never given a vote by Republicans/not confirmed. have a right to do that. If my colleagues dis- many cases, they didn’t even get a agree, and don’t like this, they can speak Helene White, 6th Circuit, never given a hearing. vote by Republicans/not confirmed. out, they can give their reasoning and vote I mentioned this a week or so ago. no. Politics ought to be left out of it. Bonnie Campbell, 8th Circuit, never given My friend from Utah said Bonnie a vote by Republicans/not confirmed. It is unfortunate we did not hear that Campbell’s nomination came too late Marsha Berzon, 9th Circuit. when President Clinton’s nominees in the last year of the last administra- James Duffy, 9th Circuit, never given a were sent to the Senate for confirma- tion. Well, I know for a fact two of Sen- vote by Republicans/not confirmed. tion. In fact, I said the same thing as William Fletcher, 9th Circuit. ator KYL’s district judges were nomi- my friend from Utah said at the time Barry Goode, 9th Circuit, never given a nated after Bonnie Campbell was nomi- vote by Republicans/not confirmed. on the nomination of Bonnie Campbell nated, and they were confirmed on Oc- to serve on the Eighth Circuit. Bonnie Ronald Gould, 9th Circuit. tober 3, 2000. In fact, I have a list of all Margaret McKeown, 9th Circuit. Campbell is a former attorney general the Clinton judicial nominees who were Richard Paez, 9th Circuit. of the State of Iowa, an individual who, never allowed a vote. There were 79 Christine Arguello, 10th Circuit, never by all reckoning, did an outstanding who were not confirmed—31 circuit, 48 given a vote by Republicans/not confirmed. job at the Department of Justice, head- district. Fifty-nine were never even al- James Lyons, 10th Circuit, never given a ing the Office of Violence Against lowed a vote. Allen Snyder, DC Circuit, vote by Republicans/not confirmed. Timothy Dyk, Fed. Circuit. Women. never given a vote by Republicans; She was nominated by President Arthur Gajarsa, Fed. Circuit. Elena Kagen, DC Circuit, never given a (Helene White waited more than 1,500 days, Clinton to be on the Eighth Circuit, vote by Republicans; Robert Cindrich, and we could not even get a vote on never to be allowed a hearing or a vote.) Third Circuit, never given a vote by (Richard Paez waited more than 1,500 days her. She received her hearing in May of Republicans. I will not read the whole to be confirmed.) 2000 and answered whatever questions list. There are 59 of them. But obvi- 48 DISTRICT COURT NOMINEES (37 BLOCKED FROM were propounded to her. She stood will- ously one of those is Bonnie Campbell. GETTING VOTE OR BEING CONFIRMED) ing to produce any and all documents As long as Mr. Estrada is going to be Steven Achelpohl, District Court, never she had ever written for anyone. No, here, I will keep reminding people of given a vote by Republicans/not confirmed. not once did any Republican Senator what they did to someone eminently Ann Aiken, District Court. complain that Bonnie Campbell was well qualified who answered all the Richard Anderson, District Court, never not forthcoming. In fact, I am told that questions, was open to giving any given a vote by Republicans/not confirmed. Joseph Bataillon, District Court, never not once did a Republican Senator writings, documents, or whatever any- complain that a Clinton nominee did given a vote by Republicans/not confirmed. one had asked of her. Yet she was Steven Bell, District Court, never given a not adequately answer these questions. stopped and wasn’t even given a vote. So here she was, ready to answer, vote by Republicans/not confirmed. I ask unanimous consent to print in John Bingler, District Court, never given a ready to move on. The hearing was the RECORD a list of all the judicial vote by Republicans/not confirmed. held. She had the ABA stamp of ap- nominees who were not confirmed that David Cercone, District Court, never given proval. As I said, she had a long and President Clinton nominated, with a a vote by Republicans/confirmed ’02. distinguished history in the field of list of how many were never even given Patricia Coan, District Court, never given law. There were Members on both sides a vote by Republicans/not confirmed. a vote. of the aisle who supported her nomina- Jeffrey Colman, District Court, never There being no objection, the mate- tion. Both Senator GRASSLEY and I, given a vote by Republicans/not confirmed. rial was ordered to be printed in the from the State of Iowa, supported her Valerie Couch, District Court, never given RECORD, as follows: a vote by Republicans/not confirmed. nomination. SEVENTY–NINE CLINTON JUDICIAL Legrome Davis, District Court, never given On September 21, 2000, I said right a vote by Republicans/ confirmed ’02. here: NOMINEES NOT CONFIRMED IN CON- GRESS FIRST NOMINATED Rhonda Fields, District Court, never given If, for some reason, you think she is un- a vote by Republicans/not confirmed. (31 CIRCUIT/48 DISTRICT—59 OF THESE NEVER qualified—I can’t imagine why—then cast S. David Fineman, District Court, never ALLOWED VOTES BY REPUBLICAN-CON- your vote, but at least let’s bring the nomi- given a vote by Republicans/not confirmed. TROLLED SENATE) nee to the floor. This, I think, is a black Robert Freedberg, District Court, never mark on the operations of the Senate, an- 91 CIRCUIT COURT NOMINEES (22 BLOCKED FROM given a vote by Republicans/not confirmed. other indication of how the leadership of this GETTING VOTE OR BEING CONFIRMED) Dolly Gee, District Court, never given a Senate refuses to do the people’s business, to Merrick Garland, D.C. Circuit. vote by Republicans/not confirmed.

VerDate Jan 31 2003 02:04 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.011 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S2997 Melvin Hall, District Court, never given a any of the circuits covering Texas, this just goes to show you, once again, vote by Republicans/not confirmed. California, Arizona, New Mexico, Flor- the link between al-Qaida and Osama William Hibbler, District Court. ida, New York, New Jersey, or Puerto bin Laden and Saddam Hussein, when Faith Hochberg, District Court, never in fact on the tape whoever is speak- given a vote by Republicans/not confirmed. Rico, where there are sizable minori- Marian Johnston, District Court, never ties of Hispanic Americans. In con- ing, whether it was Osama bin Laden given a vote by Republicans/not confirmed. trast, President Clinton nominated 11 or not, is basically saying, it is all Richard Lazzara, District Court, never Latinos to these circuit courts and 21 right to use Saddam Hussein to defeat given a vote by Republicans/not confirmed. to the district courts—quite a dif- the Americans, but it is not all right to J. Rich Leonard, District Court, never ference. support Saddam Hussein because he, given a vote by Republicans/not confirmed. Again, my friend from Utah said on too, is an infidel, not a true Islamist. Stephen Lieberman, District Court, never February 12: Somehow we just ignore that. But given a vote by Republicans/not confirmed. Matthew Kennelly, District Court. What gets me is, we are in the middle of a there has never been a proven link, James Klein, District Court, never given a filibuster of a Federal judge when the Con- even though they have tried awfully vote by Republicans/not confirmed. stitution says we should give advice and con- hard to find one. So—— John Lim, District Court, never given a sent, not advice and obstruction, not advice Mr. HATCH. Will the Senator yield vote by Republicans/not confirmed. and filibuster, not advice and unfairness. on that point? Harry Litman, District Court, never given Again, I wish I would have heard that Mr. HARKIN. Sure, I will yield for a a vote by Republicans/not confirmed. when Bonnie Campbell had come up be- question, without losing my right to Frank McCarthy, District Court, never fore the committee. As long as Mr. the floor. given a vote by Republicans/not confirmed. Estrada is here, I will continue, as I Mr. HATCH. I have been listening to Donald Middlebrooks, District Court. have today and as I have in the past, to the Senator, and I will rebut his earlier Jeffrey Miller, District Court. remarks later. Margaret Morrow, District Court. bring up the issue of Bonnie Campbell Sue Myerscough, District Court, never because obviously it remains a dark Is the Senator aware of Mr. Zarqawi, given a vote by Republicans/not confirmed. mark on the Senate, one that was held who is in Iraq right now, who is defi- Lynette Norton, District Court, never up simply for purely partisan political nitely connected with the al-Qaida peo- given a vote by Republicans/not confirmed. reasons and nothing else. ple? Susan Oki Mollway, District Court. IRAQ Mr. HARKIN. I ask the Senator, is Virginia Phillips, District Court, never Mr. President, I rise to talk about this the guy who went to get his leg given a vote by Republicans/not confirmed. amputated? Robert Pratt, District Court. some of the events over the weekend as it pertains to the looming war in Iraq. Mr. HATCH. He is an operative work- Linda Riegle, District Court, never given a ing within Iraq—— I didn’t listen to all of the talk shows, vote by Republicans/not confirmed. Mr. HARKIN. He was injured in Af- Anabelle Rodriguez, District Court, never but if you listen to some of them and ghanistan. I don’t remember the name. given a vote by Republicans/not confirmed. then you read some of the quotes in the Mr. HATCH. This is the fellow known Michael Schattman, District Court, never paper by some of the people high up in given a vote by Republicans/not confirmed. to be in Iraq right now—or at least has this administration, particularly been in the last number of months— Gary Sebelius, District Court, never given meaning Under Secretary Paul a vote by Republicans/not confirmed. and who is one of the principal Kenneth Simon, District Court, never Wolfowitz and also Mr. Pearl, you come operatives for the al-Qaida group, and given a vote by Republicans/not confirmed. away with the feeling and the sense who has been organizing and doing Christina Snyder, District Court. that they decided some time ago they other matters within Iraq itself, and Clarence Sundram, District Court, never were going to go to war against Sad- who appears to have at least the go- given a vote by Republicans/not confirmed. dam Hussein and Iraq, regardless. ahead from the Iraqi Government. Hilda Tagle, District Court, never given a There is really nothing that could be If the Senator is not aware of that, vote by Republicans/not confirmed. done that would in any way turn away Thomas Thrash, District Court. then I understand why he is making Cheryl Wattley, District Court, never the full force and effect of the U.S. these comments. But that is only one given a vote by Republicans/not confirmed. military from a full scale war in Iraq. illustration. Is the Senator aware that Wenona Whitfield, District Court, never Because no matter what happens, they there may be other illustrations as given a vote by Republicans/not confirmed. have a counter, and they keep coming well? Ronnie White, not confirmed by floor vote. back to the fact that it is too little, Mr. HARKIN. Well, I have read about Frederic Woocher, District Court, never too late, we can’t wait any longer for them and heard about them—that given a vote by Republicans/not confirmed. disarmament. But the fact is, over the there may be some people in and out, Mr. HARKIN. I want to address brief- last 12 years, containment has worked. or some who may have come in. The ly the issue of whether or not this is Even though we did not back it with as most I have heard is the one I think anti-Hispanic, something like that. I much force as we probably should have the Senator is talking about, but I keep hearing this talk that Democrats at that time and the fact that we did think he came there to get his leg fixed are going to be accused of being withdraw our inspectors in the latter or something. No doubt he was well against Hispanics. Again, we do have to part of the 1990s, when that never connected with al-Qaida. point out some history. should have been done, the fact is, dur- But I say to my friend from Utah, the Enrique Moreno, Jorge Rangel, and ing those 12 years, Saddam Hussein Government of Iraq said they cannot Christine Arguello were all nominated never marched on another country, find this guy. Well, our people have to the circuit courts by President Clin- never started another war, and even said it is ridiculous; of course, you can ton, but were never afforded a hearing though this administration has tried find him. Well, we cannot find Osama or vote in the Judiciary Committee their darnedest, they have never made bin Laden in Afghanistan. We have under Republicans. My colleague from a link between Saddam Hussein and al- more spy satellites and listening equip- Iowa, Mr. GRASSLEY, was quoted in the Qaida. ment than Iraq ever dreamed of having. Dallas Morning News of January 31 of Now they are talking about some guy I don’t know whether this guy is there this year: who got injured in Afghanistan and he or not. There have been some in and If we deny Mr. Estrada the position on the came to Baghdad to get his leg treated out of Iraq. DC circuit, it would be to shut the door on because he had his leg amputated. He is Again, it is very tenuous as to wheth- the American dream of Hispanic Americans somewhere around Baghdad, we don’t er or not there are any connections. I everywhere. know where. We don’t even know if he am sure the Senator from Utah also Well, let’s take a look at the reality is there. They suspect he is there and knows that there has been a long- and the record. There are more than that is proof that Saddam is working standing feud between Osama bin 1,000 local, State, or Federal judges of with al-Qaida. Laden and his fundamentalists and the Hispanic heritage. Yet President Bush Perhaps one of the most outlandish Iraqi dictator, Saddam Hussein. I say a has nominated only one Hispanic to statements was a couple weeks ago pox on both their houses. But the fact any of the 42 vacant appellate posi- when this purported tape of Osama bin is, in the eyes of Osama bin Laden and tions. This administration has failed to Laden came out. Secretary Powell said those fundamentalists, Saddam Hus- nominate a single Hispanic judge for at that time that—I am paraphrasing— sein is a secular leader, not a true

VerDate Jan 31 2003 01:24 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\CR\FM\A03MR6.010 S03PT1 S2998 CONGRESSIONAL RECORD — SENATE March 3, 2003 Islamist. What they have always want- Khalid Sheik Mohammed, and that is have an occupation, when we see how ed was to get rid of Saddam Hussein to the Government of Pakistan. we have treated the Pakistanis for all put in power a religious government in I have taken this floor many times in these years. Iraq. So there never has been, in all the the past several years to talk about There were a couple other interesting briefings I have ever had, any love lost our relations with Pakistan and how events this weekend. The Iraqi Govern- between Saddam Hussein and the al- through the years, clear back to the ment has continued to destroy some of Qaida network. They just have dif- founding of Pakistan as a nation, they the Al-Samoud missiles. I think it is up ferent ideologies and a different way of have been on our side in every war. to 10 now. They said they destroyed six approaching how they should govern. There isn’t one conflict in the world more missiles. There is an interesting So, again, they have been trying to that the U.S. has been involved in that quote in the paper this morning. It make these links between al-Qaida and the Pakistani Government and troops said: Saddam Hussein, and they have never have not been on our side. Even in ‘‘If it turns out at an early stage this done it. Haiti we had Pakistani soldiers with month that America is not going to a legal I say to my friend from Utah, there is us. In Korea. In Vietnam. In the gulf way, then why should we continue?’’ Saddam an interesting piece in the Sunday war in 1991, Pakistan was there with Hussein’s scientific adviser, Lt. Gen. Amer Washington Post. When they caught us. Every single time that we have had al-Saadi, said Sunday. Khalid Sheik Mohammed, one of the a capture and a turnover to us of a ter- In other words, what he is saying is— most dangerous men in al-Qaida, they rorist, it has been Pakistan that has I read the story—we are willing to de- captured him in Pakistan. On page A– helped us. stroy the missiles, it takes time, but if 26, there was a picture of all the high- The first bombers at the World Trade the United States is going to commit value targets, those who have been in- Center caught—almost a dozen years war on us anyway, why should we? volved with al-Qaida. No. 1 is Osama ago now—were turned over to us by A Senior U.S. official— bin Laden. And then there is Khalid Pakistan. The shooter at the CIA in There is always one of those— Sheik Mohammed, the one they just the mid-1990s who killed so many peo- said today the White House remained caught. Then there is Abu Zubaida, ple escaped and went to Pakistan. unimpressed with Iraq’s move. ‘‘The stand- still at large. Others have died or have Pakistan caught him and turned him ard for cooperation demanded by U.N. Reso- been captured. over to us. The bombers of the embas- lution 1441 is full and immediate, not grudg- What is interesting about all of sies in Kenya and Tanzania were ing and late,’’ the official said. The resolu- this—tier 1, tier 2, tier 3, is Osama bin caught by Pakistan and turned over to tion approved last fall authorized a new Laden is a Saudi. Zawahiri is Egyptian. us. And now this is the latest in a long round of weapons inspections in Iraq. Saif Al-Adil is Egyptian. Khalid Sheik string of terrorists who have killed You wonder sometimes what the rush Mohammed is Pakistani. Then down Americans here at home and abroad. to judgment is. If we can continue with here is a Jordanian, a Palestinian, a Here is the latest. Khalid Sheik Mo- more inspectors and Iraq continues to Saudi, a Yemeni, an Indonesian, a Ku- hammed was captured in Pakistan. destroy the missiles, and to continue waiti, and an Egyptian. One thing kind Yes, with the help of our FBI and the containment policy on Saddam of leaps out at you: Not one of them is CIA, and I don’t know what other intel- Hussein, isn’t that what we want? an Iraqi. ligence agencies, but it mentions the There is another unnamed military You would think that if Iraq were so FBI here, but also with the help of the source that says these missiles have closely tied in with al-Qaida, they Pakistani Government. It could not questionable accuracy anyway. I am might have some operatives in there. have happened unless President told they went over the line by 26 Not one is Iraqi. So we are going to go Musharraf and others came to our aid miles. kill a lot of innocent Iraqis, innocent and assistance to capture this guy. Yet It was 100 kilometers, and they went civilians, women and children. Where how do we treat Pakistani Americans? over by 26 miles. I had a conversation are the Iraqis in that lineup? You So many Pakistani Americans who are this weekend with someone who said: would think, with that list, we would in this country, who have been work- These missiles could be used to hit go to war against Egypt. Look at all ing, many have children who are Amer- Israel or hit Europe or maybe even the Egyptians—or even the Saudis. icans, have provided health care in our America. That is not the case at all. Look at all the people who are in tier country in many cases and in many sit- They went 26 miles over the line. 1, tier 2, and tier 3 of the high-value uations. They are university profes- Again, it was more than what was al- targets, and more than just a few are sors, businesses entrepreneurs all over lowed and they should be destroyed and Saudis. Maybe that ought to be the America. Yet we have told them they they are being destroyed. target of our invasion. have to march into INS and get I guess the point I am making is why After all, we know it has been the fingerprinted and do all this within a are we in such a rush to say that is not Saudis who, with their deep pockets, month. In other words, it is treating enough; we are going to go to war any- have been funding the fundamentalists Pakistani Americans as if they are way? As I said at the beginning of my in their efforts in that part of the part of this network of Saudis, Yem- remarks, every time I listen to Mr. world. It is the Saudis, with their deep enis, Egyptians, Jordanians, and every- Wolfowitz, it seems as if this man has pockets, who have been buying and body else. One might find a Pakistani made up his mind: We are going to war paying for Al-Jazeera television with in there someplace, I do not know. no matter what, unless, as I read be- all of the inflammatory tirades against The Pakistanis have always helped tween the lines of what he is saying, the United States and Israel that come us out, and they are continuing to help someone assassinates Saddam Hussein across that television station. Not us out today. We need to help them to and they set up a government and in- Iraq. It wasn’t Saddam Hussein paying combat terrorism in their own country. vite us in to run operations, then for that. It was the Saudis paying for After the war in Afghanistan was maybe we will not go to war. That it. over, there were over a million refu- seems to me about the only scenario So over the weekend we have the cap- gees from Afghanistan and Pakistan. that would keep a war from happening, ture of Khalid Sheik Mohammed, per- They now think it is probably between according to Mr. Wolfowitz and those haps, as they say, the brains behind al- 1 and 2 million. We provided little—I around him. Qaida, and the brains behind Sep- can almost say no help to the Paki- The other important event that hap- tember 11—the operations chief and stanis to take care of these refugees, to pened this weekend was the vote in the mastermind. That is a great capture. I help them get resettled, and, as far as Turkish Parliament. The vote was applaud the FBI agents, CIA agents, I know, we are not doing anything to close. We lobbied heavily. We put up, I whoever was involved in tracking this help them now to get back into Af- do not know, I am told $15 billion or $26 guy down and getting him. They did a ghanistan to resettle. They remain a billion—take your pick—to get the great job, and I hope they get whatever burden on the Pakistani Government. Turkish Government to allow us to use commendations and medals that is ap- It makes one wonder sometimes just their territory for our troops, for load- propriate for that. But there is some- what our response is going to be if, in ing troops, the provisioning of troops, one else that also helped capture fact, we do have a war in Iraq and we and the movement of troops across

VerDate Jan 31 2003 02:04 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.016 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S2999 Turkish national territory to Iraq. are in a position to carry out these respon- January 20—I have not seen the movie Even with that, the Parliament turned sibilities themselves. yet, but I have read the book a couple it down. It was a close vote, but they Interesting. ‘‘The U.S. is fully com- of times, and I looked at it again this turned it down. mitted’’—I do not remember us ever weekend, ‘‘The Quiet American’’ by Then I saw a poll—you can get a lot having a debate about that commit- Graham Greene. You read that and you of information off the Web on the ment, that we are committed to stay think about how we got into Vietnam— weekend when you are working on as long as necessary to fulfill these re- the same kind of thing. We were going these issues—there was a poll taken in sponsibilities, but are equally com- to build a democracy in Vietnam. We Turkey. I do not know, I have no mitted to leave as soon as the Iraqi were going to end all this internal knowledge of how accurate this poll is people are in a position to carry out fighting and take care of the north, or who took the poll, but it was a pub- these responsibilities themselves. and we were going to set up democratic lic opinion poll that showed that 94 The question is: Who decides that? forms of government. That was the percent of Turkey’s citizens were op- Who decides when the Iraqi people are first, and then there were several oth- posed to the war in Iraq—94 percent. in a position to carry out these respon- ers that followed. How many thousands Even if the poll is off a little bit, one sibilities themselves? of Americans lost their lives there? can understand why the Turkish Par- There is a quote in the paper from What did it do to our country, for a liament was so reticent even in the Youssef Ibrahim from the Council on generation? face of billions of dollars of U.S. money Foreign Relations. He said: Now one goes to Vietnam and we pouring in. I think Arabs almost without exception have diplomatic relations. When we Someone said on the floor last week, would welcome more democracy and more look at what is happening in Vietnam, this is not the coalition of the willing; freedom of expression and to be liberated we have to say, what was it all about? it is the coalition of the bought con- from the police states they all—in one form It was really about the misguided ad- fronting Iraq. If we have to go to those or another—live under. venturism of, yes, well-meaning people measures, $26 billion is what I was Mr. Ibrahim goes on: in this country—I have no doubt that told—I stand corrected if that is not It does not follow that they would trust they meant well—to put a pax Ameri- right. Even if it is $15 billion or some- America to do this for them. The view over cana, sort of a stamp of America, on a place in between, we are not funding there is totally different from the view ex- country in Southeast Asia, to set up a education, we have a problem in Medi- pressed here. country that would look like us, mir- care, our deficits are going out of sight, Critics also warn that the Bush ad- ror us. We were going to do it through but somehow we have $26 billion to ministration must overcome a credi- military force. give to Turkey to allow our troops to bility gap borne of long memories and I am sorry, it did not happen then, go across their territory. That should unpopular U.S. policies. and it is not going to happen in Iraq. It raise some real questions as to what is University of Maryland Professor may happen in Iraq at some point. We happening here. Shibley Telhami warned that an inva- can encourage that. But it is not going Lastly, one has to question what is it sion of Iraq and subsequent occupation to come about through a war that is we are about underneath it all? by United States-led forces would feed going to kill countless civilians Again, I read from a speech that an image of United States imperialism through the establishment of a mili- President Bush gave last week to the and undermine the very goals the ad- tary occupation and through us trying American Enterprise Institute and ministration has set. to impose upon the Iraqis our sense of some of the comments that were made Keep in mind, if we do, in fact, go to what good government is. If only that regarding that issue. President Bush war in Iraq and occupy Iraq and set up were true. But history shows it is not. said in his speech that we are going to this military type of government for We keep hearing from Mr. Wolfowitz have an Iraqi Government that will be however long we want to, it will be the and others what a grave threat Saddam representative of the people and that first time ever that the United States Hussein is to us. They believe the war we would ensure that happened. has occupied an Arab country, the first in Iraq will be quick, maybe 2 or 3 I went back because I wanted to time ever that we will be seen by the weeks and it will be over with. And check to make sure this was official, so Arabs as occupiers, as establishing that is probably true. I have no doubt I looked at the White House document some kind of colonial power in the that could possibly be true. Then one that was sent to us on January 20, 2003. Arab world. And I think that is going has to ask, if that is the case, are they It is the report from the President re- to have severe ramifications. really that big a threat? quired by the Iraqi resolution that was Army Chief of staff Shinseki told the Iraq has no navy. It has no air force passed by Congress last fall. Senate Armed Forces Committee that to speak of. Its military is really in Of course, it was supposed to have several hundred thousand soldiers shambles. What kind of a threat are been in in 60 days. It was just another would be needed to secure postwar they, especially if we can keep inspec- 30 days overdue. I read it over. There is Iraq. Assistance from friends and allies tors there? an interesting part in the report that would be helpful, he said. The other thing I wanted to check on President Bush signed and sent to us. I Well, I wonder how much help we will was: Is there a limit on the number of will venture to say that not many Sen- get. inspectors U.N. Resolution 1441 per- ators have read this report. But it is Mr. Wolfowitz is quoted as saying: mits? Or any previous resolution? Was called the ‘‘Future of Iraq.’’ It is in the If, when Iraq is liberated, it can come up there any limit by the surrender reso- report of the President sent to us on with a representative government that lution in 1991 which first started the January 20. I am going to quote from treats its people decently, I think it can inspections? And the answer is no. it. It says: have significant effects throughout the Mid- There is no limit on the number of in- Should it become necessary for the United dle East. spectors that the United Nations is al- States and coalition armed forces to take David Mack, vice president of the lowed to have in Iraq. So why have 100? military action against Iraq, the United Middle East Institute, said they make Why do we not have 500? Why do we not States, together with its coalition partners— it look like a no-brainer. Put me down have 1,000 inspectors, duly trained and Who are getting fewer and fewer, by as a skeptic. Americans are in such a qualified, all over that country? Sad- the way— hurry. The people in the region are not. dam Hussein cannot say, no, that is not will play a role in helping to meet the hu- They are worried that they are jump- allowed, because it is allowed. I sub- manitarian, reconstruction, and administra- ing over a precipice. mit, those 1,000 or 500 inspectors fully tive challenges facing the country in the im- By one estimate, 65 million adults in trained in Iraq, even if it takes the mediate aftermath of a conflict. . . .We will the Middle East cannot read or write, next 5 years, is cheaper monetarily work to transfer authority as soon as prac- 14 million are unemployed, and 10 mil- than what the war is going to cost us, tical to the Iraqis themselves, initially in an advisory role. . . .The U.S. is fully com- lion school-aged children are not en- and certainly cheaper in terms of the mitted to stay as long as necessary to fulfill rolled in class. loss of human life, both American lives these responsibilities, but is equally com- When I listen to Mr. Wolfowitz and I and innocent lives in Iraq. Plus, I be- mitted to leave as soon as the Iraqi people read the report from President Bush of lieve through that process we will have

VerDate Jan 31 2003 01:24 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.019 S03PT1 S3000 CONGRESSIONAL RECORD — SENATE March 3, 2003 the support and the admiration of We have a gang down there at the tions were renominated by the current other Arab countries. White House, Paul Wolfowitz, Richard President Bush, John Roberts and Ter- A war in Iraq, I believe, will give the Pearle, Negroponte, Elliot Abrams, rence Boyle. John Roberts for Circuit backup to the terrorists who are out Poindexter—do these names conjure up Court of Appeals for the District of Co- there. I am not so naive to think that memories of the past? Sure does. A lot lumbia, and Terrence Boyle for the there are not terrorists even yet in this of the misguided adventures we got Fourth Circuit Court of Appeals. country, and in other parts of the into in the 1980s—in Iran, in Central John Roberts was reported out of the world, who want to do us in. They are America, places like that—all these committee last week with bipartisan there, but it seems like right now they names kept popping up at that time be- support. He has been sitting here for 12 do not have a backup. There is not cause they were all involved in the years through three nominations by much of a backup. We are tearing up misguided adventures. Now they got two different Presidents. He is consid- the network with the recent capture of the adventure that will save us all, it ered one of the two greatest appellate Khalid Sheik Mohammed in Pakistan. will save America in the future—war in lawyers in the country today by mem- We are destroying this network, and we Iraq. And occupy Iraq with several bers of the Supreme Court, as well as should keep at it, too. But a war in hundred thousand troops, stay there as others. I look forward to seeing him Iraq then will give, I think, people in long as necessary to set up a govern- confirmed. It is about time that he the Arab world who today are not feel- ment that somehow looks like ours. was. Terrence Boyle has been sitting ing us any ill, will give them the rea- I close my remarks by saying these there for 12 years, nominated three sons to support monetarily, through people ought to go visit Vietnam. I times, by two separate Presidents. encouragement, through processors, have, several years ago, to find out how President Bush has nominated not those terrorists who are out there. It is the people are getting along there. only Miguel Estrada for the Federal ap- one thing to be a terrorist by yourself They seem to be getting along fine. I pellate bench, but these other two someplace; it is another thing to be a still may not approve of the kind of qualified nominees who have been sit- terrorist backed up, backed up, and government they have. But the people ting there for 12 years. He also nomi- backed up, like countless other people seem to be getting along just fine. Sai- nated, contrary to what the distin- who are willing to give money and sup- gon is bustling, Hanoi is bustling, the guished Senator from Iowa said, two port and intelligence to help in your tourist industry is going up, manufac- other Hispanic nominees for circuit terrorist activities. To me, that is turing is going up. Again, it might not courts of appeals, one for the Fifth Cir- what could happen if we go to war in be the mirror image of our kind of gov- cuit and one for the Ninth Circuit, as Iraq. ernment, but they seem to be doing all well as Miguel Estrada. Lastly, the civilian causalities. I re- right. The distinguished Senator from Iowa member the pictures that came back So go visit Vietnam, and then go is trying to make a comparison be- from 1991 after the war in Kuwait down to this wall down on The Mall tween Bonnie Campbell and Miguel against the Iraqi Army—tanks, trucks, and remember the misguided adven- Estrada. Let me first say, I like Bonnie vehicles bombed and burned out, bodies tures of well-meaning politicians of the Campbell. I feel badly she did not make lying all over in the desert. That did past before we commit our military to it to the floor. She was not on the not provoke any outpouring of ill-will a massive invasion of Iraq. floor. There was no filibuster. Her ex- in the Arab world. It did not provoke I yield the floor. perience was nowhere near that of any outpouring of a sentiment that The PRESIDING OFFICER. The Sen- Miguel Estrada. In fact, to my knowl- somehow all of those people who were ator from Utah. edge, she never tried a case either be- killed were somehow innocent. They Mr. HATCH. I notice some of my col- fore a trial court or on appeal. She were not. These were soldiers. These leagues are here. I ask unanimous con- never argued an appellate case. She were Iraqi troops, used to invade and sent, after my few remarks, Senator never appeared before the U.S. Su- plunder Kuwait. DORGAN be permitted to speak for up to preme Court. As a matter of fact, you It will be different this time. This 25 minutes, and the Senator from could go into more and more. But com- time it is not just the Iraqi Army. It South Carolina be permitted to speak pare her ABA rating with Miguel will be innocent men and women in for up to a half hour, then Senator SES- Estrada’s. Her ABA rating was a ‘‘ma- Baghdad who will get killed. And those SIONS for such time as he may use. jority qualified,’’ which is a step below are the pictures that will go around the The PRESIDING OFFICER. Without Mr. Estrada’s rating of ‘‘unanimously Arab world. If we are just confronting objection, it is so ordered. well qualified,’’ the highest rating the the Iraqi Army, that is one thing. But Mr. HATCH. I will answer some of American Bar Association gives. Hers with all the cruise missiles and the the questions that have been raised. was ‘‘qualified’’ by a majority of the bombing and everything else that will The more I hear from some of my col- standing committee and ‘‘not quali- go on in Baghdad, cruise missiles are leagues, I believe they believe the Clin- fied’’ by a minority of the standing very accurate, but sometimes they go ton nominees, President Clinton’s committee. There is quite a bit of dif- astray and sometimes people are not nominees were mistreated. The more I ference between the two nominees, plus where they are supposed to be. Some- hear them say this, the more I believe, the fact that Miguel Estrada is on the times they are in the wrong place at especially after listening to the distin- floor and there is a filibuster, a totally the wrong time. That is what will hap- guished Senator from Iowa, that what partisan filibuster being conducted pen, the image of innocent women and we are seeing here on Mr. Estrada, the against him. children killed by the might of the filibuster is more about pay back than I hope my colleagues are not going to American military in Baghdad. about Mr. Estrada. continue that filibuster, but I under- That is why the best course of action Senator BOXER, the distinguished stand that is what they intend to do. I is to continue the inspections, and if Senator from California, even said as hope some of my colleagues on the we need to, make 500 inspections, make much last week when they said, ‘‘What other side who are thinking more 1,000 inspections. And then continue goes around comes around.’’ clearly will admit this is a dangerous the program: planned destruction of Let me take a minute or two to set thing to do. It is a wrong thing to do. weapons of mass destruction and oth- the record straight. I have heard my I think it is an unconstitutional thing ers that Saddam Hussein now possesses colleague from Iowa say we Repub- to do. I think it diminishes both the in his arsenal. It may take more than licans are applying a double standard executive and the judicial branches of a week, it may take more than a because some Clinton nominees, such Government while increasing the month, it may take 6 months or a year as Bonnie Campbell, were not con- power of the Senate, the congressional or 2 years or 4 or 5 years. firmed. Let me remind my friend that branch, or legislative branch. The article asked, what is the hurry? there were more nominees of the first Since the topic has been raised of the If it means less loss of human life, and President Bush—54—who were not con- committee’s confirmation record dur- it will certainly cost a lot less, it firmed than there were Clinton nomi- ing the Clinton administration, I want seems to me that would be the wise nees not confirmed at the end of his ad- to take a moment to set the record course of action. ministration. Two of these nomina- straight. During President Clinton’s 8

VerDate Jan 31 2003 01:24 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.021 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3001 years in office, he had 377 Federal the Clinton nominees better than the well not be. It is going to be tough even judges confirmed, just 5 less than Democrats treated the Bush 1 nomi- for the American Bar Association to President Reagan, who was the all- nees and I think better than the cur- make their evaluations because they time champion. But President Reagan rent Senate leadership is treating the won’t have anything to make them on, had 6 years of a Republican Senate to current President Bush’s nominees. I other than the local attorneys who help him—of his own party. President just wanted to set that record straight. may be practicing law in the same Clinton only had 2 years of his own You cannot compare the Bonnie Camp- area. party, the Democrats, to help him. bell matter with the Miguel Estrada I have said enough. I just wanted to There were 6 years where I was chair- matter. They are completely distin- set the record straight. man, and we still put his judges guishable. And with regard to ability, Also, I totally disagree with the dis- through as much as we could. If you there is no comparison. tinguished Senator from Iowa in his compare the number confirmed to the Miguel Estrada not only has grad- comments about the Iraq situation. We number nominated, President Clinton uated at the top of his respective col- do have evidence of al-Qaida people enjoyed an 85-percent confirmation lege and law school classes, at Colom- being in Iraq. We do have evidence of rate on individuals he nominated. That bia and Harvard, but he also was an organization within Iraq. We do have is one of the highest ratings. What is editor of the Law Review; worked as a evidence that I think would rebut al- more, President Reagan, like I say, had clerk for Amalya Kearse, a Carter ap- most everything the distinguished Sen- 6 years of a Senate controlled by his pointee in the Second Circuit Court of ator from Iowa said. But since my col- own party, while President Clinton had Appeals; worked as a clerk to Anthony leagues are on the floor and desire to only 2. Kennedy, currently a Justice in the speak, I do not want to take their Here is what happened to the 56 Clin- U.S. Supreme Court; worked in the So- time. So I yield the floor. ton nominees who did not get con- licitor General’s Office; was highly re- The PRESIDING OFFICER (Mr. ROB- firmed during those 8 years. Some of spected; has four of the—worked for ERTS). Under the previous agreement, them were multiple nominees. Three three, if not four, of the Clinton Solici- the Senator from North Dakota, Sen- were left at the end of the 103rd Con- tors General; worked 4 years for Clin- ator DORGAN, is recognized for 25 min- gress when the Democrats were in con- ton; 1 year for Bush; argued 15 cases be- utes, to be followed by Senator HOL- trol, so those three cannot count fore the U.S. Supreme Court, winning LINGS of South Carolina for 30 minutes, against the Republicans. That leaves 10 of them even though he has a speech to be followed by Senator SESSIONS. 53. Nine were nominated too late in the impediment, a disability. It is amazing The distinguished Senator from Congress for the committee to feasibly what this man has been able to do, and North Dakota is recognized. act on them or they were lacking the it is amazing to me that he has gone Mr. DORGAN. Mr. President, I have appropriate paperwork. That leaves 44. through this. I do not see one justifi- voted for over 100 judges nominated by Seventeen of those lacked home State able reason in the world for this. President Bush. In North Dakota, we support, which often resulted from the On the other hand, I don’t under- have had vacancies in both the west White House’s failure to consult with stand, sometimes, my colleagues on and east district judgeships. President home State Senators. There was no the other side. I know they do not all Bush nominated two Republicans for way to confirm those nominations agree. We have a total of 55 votes we those judgeships. I was happy to sup- without completely ignoring the sen- know will vote for Miguel Estrada. It port them, and to work with President atorial courtesy that we afford to home seems to me that is what we ought to Bush to make sure that their confirma- State Senators in the nominations be doing is voting up or down. We tion went smoothly. One has been con- process. That leaves only 27. One nomi- should not be setting this awful prece- firmed, the other I am convinced will nee was defeated on the Senate floor, dent of a filibuster against any judicial be confirmed, and both will make us which leaves only 26 remaining Clinton nominee or, for that matter, any per- proud as Federal judges. nominees. Of those, some had reasons son on the Executive Calendar because I make that point only to say that I for not moving that I simply cannot I believe it does fly in the face of the expect to be supportive of most, if not comment on. So in all 6 years that I separation of powers doctrine, to re- all, of the President’s nominees. And I chaired the committee while President quire, from here on in, if this precedent wish that we could have a vote on Mr. Clinton was in office, there were fewer is set, 60 votes to confirm any ‘‘con- Estrada. than 26 nominations left in committee. troversial’’ nominee. If that happens, Mr. Estrada’s nomination is problem- Let’s compare this record to the first then the Presidency will have been di- atic, however, in that he has refused to Bush administration when the Demo- minished, the judiciary will have been answer some basic questions. My col- crats controlled the committee. The diminished, and we will not be able to leagues, the ranking member of the Ju- Democrats failed to confirm 58 Bush 1 get the top people in the country to diciary Committee and the minority nominees over the course of only 4 even take these seats. years. Let’s look at the number of Keep in mind, we pay the Chief Jus- leader, have indicated by letter that nominees pending at the end of the tice of the United States Supreme Mr. Estrada needs to be forthcoming, Clinton and Bush 1 administrations. Court $192,000 a year. Any one of these and answer provide some basic infor- While there were 41 Clinton nominees top nominees makes four or five times mation about his judicial philosophy left in the committee at the end of the that or more. So these jobs are not and temperament. Considering that 106th Congress when Clinton left office, plums as far as their salary. These jobs Mr. Estrada is seeking a lifetime ap- the Democrats left 13 more, a total of are taken because people want to give pointment to the bench, one would ex- 54 nominees hanging at the end of the service to the Federal Government. pect that he would be eager to provide first Bush administration. Moreover, of They want to serve the public and they that information. the 41 Clinton nominees left at the end are willing to sacrifice the monetary Judge Hovland, whom the President of the 106th Congress, one was renomi- remuneration they are making as at- nominated to the Western District of nated and confirmed in the 107th Con- torneys in order to serve. We ought to North Dakota, answered the very ques- gress, 12 lacked home State support, keep that in mind. tions that Mr. Estrada would not. I was and 9 were nominated too late for the I would hate to see the day we only happy to support Judge Hovland. I wish committee to act or had incomplete get the lesser of the less to be nomi- Mr. Estrada would be forthcoming. paperwork. That really leaves only 20 nated because nobody else of any quali- When and if he does that, I hope we nominees who did not go forward dur- fications would want to go through proceed to vote. And then we can move ing the last year of the Clinton admin- this type of an awful procedure. I don’t on to any number of pressing matters. istration. want to see the day when the only ones U.S. INTERNATIONAL TRADE DEFICIT All this goes to show that any allega- who can make it are those who do not Mr. President, I want to take the tion that this committee was somehow have any records, have written noth- floor to talk about one very pressing unfair to President Clinton’s nominees ing, have never said anything, whom matter, which all of us should be con- is simply untrue, and payback is not you don’t know anything about, and cerned with: that is, our country’s the right thing to do. In fact, I treated who may be good judges but may very record trade deficit in 2002.

VerDate Jan 31 2003 02:04 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.024 S03PT1 S3002 CONGRESSIONAL RECORD — SENATE March 3, 2003 I spoke on Wednesday about it, and are in such demand, even with Treasury describe where the jobs are, who wins the very next day, the U.S. Trade Am- yields at historic lows and after three down and who loses. With respect to the bassador, Bob Zoellick, was on CNN’s years in the U.S. stock market, that Ameri- global economy, and with respect to ‘‘Moneyline’’ with Lou Dobbs, to talk cans have to find $1.5 billion a day worth of trade agreements, we are losing, we are foreign goods just to spend all the money about the deficit. that’s coming in. losing jobs. Mr. Dobbs, whom I really admire, That does not mean much to the eco- I do not understand that at all. Have asked Mr. Zoellick the following ques- nomic thinkers and the newspaper edi- they not taken the first basic course in tion: torialists and others whose jobs are not economics? I just do not understand in jeopardy, but it means a lot to the What would you say, [Mr.] Ambassador, is that. Total nonsense. the most important [issue for] a country We have been running record trade millions of people who used to have that has a $430 billion trade deficit? deficits through all kinds of economic good jobs that paid well, with good Ambassador Zoellick’s answer: Let’s conditions: through the economic boom benefits, whose jobs are now gone. Be- negotiate new trade agreements. of the 1990s, through the more recent cause they cannot compete in global He said: recession, through a peacetime econ- trade when a U.S. manufacturer moves That’s what we’ve been doing over the last omy, through a wartime economy. The its plant abroad, so they can produce couple years, reversing some of the slowdown trade deficit keeps going one way: up, where they can hire 14-year-old kids, in the past. We just completed two new trade dangerously up. work them 14 hours a day, pay them 14 agreements with Singapore and Chile. We’re cents an hour, and dump the chemicals trying to move ahead working with the glob- If the economies of Europe and Japan need our trade deficits to stay healthy, into the streams and into the air, and al trade negotiations, working with the Eu- then ship the product back to Toledo ropeans and others. then they ought to get busy revamping or Fargo or Los Angeles or Denver, and Then Lou Dobbs noted that manufac- their economies, because there is no way this situation is sustainable. then say to the American producer: turing jobs are being exported abroad. You cannot compete with this; tough Again quoting Mr. Dobbs, he said: Does anybody really believe our economy is so strong right now, as the luck; you cannot compete in the global Is there anything that can be done about Wall Street Journal suggests, that we economy. that or is this a historical trend that is going That is not what we ought to allow in to continue for years to come? have to find $1.5 billion a day worth of foreign goods just to spend all the terms of global trade. Ambassador Zoellick said: money that is coming in? The fact is, We have deficits as far as the eye can Jobs [have] gone down, but that’s because we are mortgaging our children’s fu- see. With China, we have trade deficits productivity has gone up. So where have ture with these trade deficits. It is irre- of $103 billion; with Canada, deficits of those jobs gone? Well, you’ve got more peo- $50 billion. ple in the service industry. You have cable sponsible, and it ought to stop. If the Wall Street Journal were truly a con- This chart shows the deficits we television and others. have: $50 billion with Canada, $37 bil- OK, so now I understand it, I guess. servative newspaper, it would be lead- ing the charge to demand that we do lion with Mexico. And, by the way, be- The Trade Ambassador said we are fore we did the United States-Canada- shipping manufacturing jobs overseas something to rectify this trade imbal- ance. Mexico trade agreement, so-called but we have cable television. Hooray NAFTA, we had a very small trade def- for us. I have been on the floor of the Senate critical of trade policies in the Clinton icit with Canada and a small trade sur- So Mr. Dobbs tried again, asking Am- plus with Mexico. Now we have turned bassador Zoellick to identify the most administration time after time after time, and I am critical of the trade both of them into very large trade defi- important trade issue for the United cits. States, and the Ambassador said: policies of this administration. The fact is, you cannot tell the difference On the chart, you can see virtually Well, the most important issue I frankly the only trading partner with which we think is keeping the United States in [a] between Republican and Democratic administrations on trade policies. Year have a surplus at this point is Aus- leadership [role] in global trade. . . . tralia. But this administration is going I just came back from China. I was in after year after year, we have Trade Latin America not long ago. And what they Ambassadors who talk about the ad- to remedy that because now they are look to is U.S. leadership in terms of various vantage of doing another trade agree- engaged in trade talks with Australia, negotiations, the global negotiations, the ment; and every single time we do an- to set up a free trade agreement with hemispheric negotiations, and individual other trade agreement, our trade def- Australia. So we may not have a trade ones. icit ratchets up. surplus with Australia for long. If That’s the biggest trade issue for this This chart show the merchandise those same trade negotiators who ne- country? We have the highest trade trade deficit we face: $470 billion in gotiated all of our trade agreements deficit in human history—and Mr. 2002, after exploding increases during are engaged in Australia, we will lose Zoellick thinks the answer is to nego- the nineties. within a week or two and be back to tiate even more trade deals? The Washington Post reported that red ink with respect to Australia. Maybe Mr. Zoellick thinks that the this trade deficit put ‘‘a significant Not only do we have trade deficits deficit is really not that big of a prob- damper on U.S. economic growth.’’ In with virtually every major trading lem. He would not be alone in that be- fact, the fact that the Post article partner, we have deficits in almost lief. talks about the deficit is very sur- every sector of goods trade. We have a On February 24, the Wall Street prising, incidentally, because the $110 billion deficit in vehicles, $47 bil- Journal published an editorial entitled Washington Post, of all newspapers, is lion deficit in consumer electronics, $58 ‘‘Hooray for the Trade Deficit!’’ The the most ecstatic about this fast-track billion deficit in clothing. Journal argued that the trade deficit trade authority, global trade, and the Some might say: Well, agriculture is was propping up the economies of Eu- trade deficits we have inherited. They a bright spot because we are a net ex- rope and Japan, and were a sign of our excuse them away at every significant porter of agricultural goods. But the economic strength. opportunity. fact is, we are losing in agriculture as I have no idea what water they have Yet the Washington Post story said: well. Our modest surplus in agricul- been drinking. But let me quote from . . . a combination of increasing imports tural products was reduced 30 percent the editorial: and falling exports clipped more than half a over just last year. And major areas of Pundits claim that ‘‘financing’’ the U.S. percentage point off the 2.4 percent increase agricultural trade are now in deficit. current account deficit requires that for- in U.S. gross domestic product last year. . . . Our surplus in meat declined by $1 bil- eigners purchase some $1.5 billion in U.S. as- The Post further noted that: lion. We have a deficit in livestock sets a day, and warn darkly of the time when . . . .nearly one-fourth of the year’s [trade] trade which reached $1.5 billion last that need cannot be met. deficit in goods trade was with China, which year. We had a deficit in vegetables and And they say: sold $103 billion more goods to the United fruits of $2.5 billion last year. But the current account deficit is by defi- States than it bought here. Now, let me talk just a for moment nition the inverse of net capital inflow. So it What does this mean? It means jobs. about China. can very easily be argued that U.S. assets That is what it means. These numbers We have a trade deficit with China.

VerDate Jan 31 2003 02:43 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.027 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3003 We did a bilateral trade agreement they are critical of the implementation What about Japan? In Japan we have with China. I don’t have any idea who of China’s WTO accession, saying: had a trade deficit of $50 to $60 billion negotiated that either, but the fact is At the end of [WTO] negotiations, China every year forever since I have come to it is a trade agreement that doesn’t was a $2 billion market. We expected sub- Congress. It keeps going up. Fourteen, work. It works for them, but not for us. stantial growth, but we haven’t seen [it] be- 15 years ago we reached a beef agree- After we negotiated a bilateral agree- cause China hasn’t done what it’s supposed ment with Japan. You would have ment with China, our negotiators to do. thought we won the Olympics. The ne- agreed that following a phase-in period, That is from Teresa Howes, senior di- gotiators had fiestas and jubilation, we will allow China to have a tariff on rector of trade for the American Farm and the Washington Post had huge sto- automobiles that is 10 times higher on Bureau. Good for them. ries about our beef agreement with U.S. automobiles going to China than The bottom line is, our agricultural Japan. Good for us. Our negotiators any Chinese automobiles sold in this products aren’t getting into China. Yet were on the ball. But nearly 14 years country. We agreed we would allow Chinese goods move into our market- after the beef agreement, there is still China, a country that has a $100 billion place all the time. a 40 percent tariff on every pound of trade surplus with us or we in deficit You don’t have to travel to China to American beef going into Japan. They with them, to impose tariffs on auto- figure out why we have this kind of don’t have enough T-bone steaks in mobiles 10 times higher than the tariffs trade deficit. Go to Canada. Take a Tokyo; their market is closed. We can’t on Chinese automobiles sent to this look at our wheat trade with Canada. get more in. We have a 40 percent tariff country. I don’t know who does this The fact is, we have a massive quan- on every pound. That doesn’t make any kind of negotiating. On whose behalf do tity of Canadian grain coming into our sense to me. they think they are negotiating? country sold by a monopoly, the Cana- What is our country doing? We just We have a deficit in toys with China, dian Wheat Board, that would be ille- sit around and chant a mantra, like a $14 billion in toys. The following Post gal in this country, undercutting farm- religious group on a street corner with article describes why. The title is ers, taking money directly out of their a mantra: Free trade, fast track, free ‘‘Worked Until They Drop; Few Protec- pockets, and you can’t do much to stop trade, fast track, the global economy. tions for China’s New Laborers.’’ it. We now do have a couple of trade ac- The fact is, the global economy has This is a story about Li Chunmei, a tions, but it has taken forever to get moved forward much faster than the 19-year-old. She was literally worked them. I have no idea what the result rules for the global economy. The re- to death at a factory in China. They will be, but the fact is, this has gone on sult is that the American workers and made stuffed animals for the U.S. mar- for 8 to 10 years, and our farmers have farmers and businesses have been in- ketplace. Let me read a couple por- not gotten effective action to stop it. jured because of it. It is just a plain tions of the article. This is a picture of Our trade deficit with Europe I men- fact. There isn’t anyway you can ex- that young lady. tioned last week. We can’t get Amer- plain it away. A $470 billion trade def- On the night she died, they said, she ican beef into Europe. We take Europe icit in the year 2002 in merchandise had been on her feet for 16 hours run- to the WTO. We go there and we win. trade cannot be explained away by any- ning back and forth inside the toy fac- Europe says: So what; it doesn’t matter one. tory carrying toy parts from machine to us. We don’t intend to let your beef This is either a priority and crisis or to machine. Long hours were manda- in. it is not. If you believe it is—and I do— tory, and at least 2 months had passed So our country ratchets up its back- then this country needs to do some- since Li and other workers had enjoyed bone, stiffens its resolve, and we say: thing about it. even a Sunday off—2 months had OK, you do that, we will stick it to It is not to build walls around our passed since they were allowed even a you. And what does our government country, but it is to say to the Euro- Sunday off. Her roommates had al- do? It imposes import duties on Roque- peans, the Koreans, the Chinese, the ready fallen asleep when Li started fort cheese, goose liver, and truffles. Mexicans, the Canadians, and others, coughing up blood. They found her in That will scare the dickens out of the we are open for business. Our market is the bathroom a few hours later, curled EU, won’t it? We will take action open to you, but on the basis of fair up on the floor, moaning softly in the against Roquefort cheese, goose liver, trade. If your markets are closed to us, dark, bleeding from her nose and and truffles. don’t come to us asking for admission mouth. They called an ambulance and I would like to meet those officials in to our marketplace. she died before it arrived. The cause of the trade ambassador’s office. That was If you are going to work 14-year-old her death was unknown, but what hap- under the previous administration. I kids and pay them 15 cents an hour and pened to her last November in this in- don’t understand that at all. When will work them all day, don’t come to our dustrial town in southeast Guangdong our country decide it is going to stand marketplace. We don’t allow it. This province is described by family, up for our economic interests? country fought for 100 years for the friends, and coworkers as an example How about trade with Korea? We basic principle of a safe place in which of what China’s more daring news- have a very large deficit with Korea. to work, minimum wages, child labor papers call guolaosi. The phrase means Last year Korea sent us 618,000 auto- laws, preventing dumping of chemicals overworked to death. They actually mobiles. Do you know how many U.S. into the streams and the air, the abil- have a phrase for being worked to cars got into Korea? Two thousand ity and the right to collectively bar- death in China. eight hundred. Is it because Koreans gain. All of these things were developed This is the playing field for inter- don’t like U.S. automobiles? No. It is through great strife over a century. national competition. Children being because Korea has the strategy to ship Now we have people deciding, we can worked to death. This is what we are their cars to the American market- fly our jet around the world and look competing with. place and keep American cars out of down and find a more friendly place in Aside from this, the tragedy of this, theirs. What does that mean? That which to produce, move our factory the fact is, our market is open to Chi- means jobs. We lose them. Korea gains there, and not have to worry at all nese goods. Shoes, shirts, trousers, them. Is it fair trade? Absolutely not. about those issues. And so they moved trinkets, toys, every day and every Shame on us for allowing it. their factory—and, incidentally, some way we are flooded with Chinese goods. If you don’t want to talk about cars of those companies decided to renounce But Chinese markets all too often are and Korea, talk about potato flakes. their citizenship as well, to become still closed to ours. We raise a lot of potatoes in my part of citizens of the Bermuda. Why? Why The Farm Bureau, a conservative the country, potato flakes for confec- would they want to become citizens of farm organization, says the Chinese tion foods. There is a 300 percent tariff the Bermuda? To save on their tax bill market is really no more open today on potato flakes to Korea. and not pay taxes in this country. than it was when China entered the I just don’t understand how we con- Bermuda has a navy that has the WTO. The Farm Bureau has supported tinue to allow this sort of thing. How strength of 26 people; there are 26 peo- fast track, has been largely supportive does it make sense for our country to ple in the Bermudan military. My feel- of the trade approaches, but the fact is allow this to happen? ing is if a company renounces their

VerDate Jan 31 2003 01:24 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.030 S03PT1 S3004 CONGRESSIONAL RECORD — SENATE March 3, 2003 American citizenship to become a cit- opportunity to offer even one amend- because we are going to give them the izen of the Bermuda, the next time ment to change an obvious problem in bill. My generation is not going to pay their assets are threatened anywhere the trade agreement. I think that for it. The fellow fighting the war is in the world through expropriation, shortchanges this country. I hope very going to have to pay for the war. have them call in the Bermudan Navy; much the trade ambassador, for whom For the first time in the history of see if there is a Bermudan destroyer to I have a lot of respect, but a great deal wars in the United States of America, move into the region. I don’t think so. of disagreement with—I hope he and we said the Army is going to war, but What I want is for this country to others in this town will understand, in- the country is not. The President is not say, yes, we are the leader in expanded cluding my colleagues, that this is a going. The Congress is not going. Oh, trade, and, yes, expanded trade helps very serious abiding problem for this we are going to wear that flag on our all in the world—but only if it is done country. We cannot ignore it. lapels. Yes, we are patriotic and we on a basis that is not a race to the bot- This country ignores this growing will give you patriotic talk anytime tom, and on the basis that it brings ev- trade deficit of nearly $1.5 billion a you want it. erybody up. day, 7 days a week, at its own peril. We But as far as actual support, let’s The White House doesn’t want to must solve this problem, and the soon- find out what the record shows because talk about it. The President won’t talk er the better. I had to listen to Bob Novak, the dis- about it. Neither did President Clinton. I yield the floor. tinguished columnist on TV, the other The Congress doesn’t want to deal with The PRESIDING OFFICER. The Sen- night when he said: How are we going it. Why? Because the minute you do ator from South Carolina is recognized. to pay for it? Just like we did in Viet- talk about this, they say, well, you are AMERICA’S TRADE DEFICIT nam. We borrowed the money. raising this trade issue, you are some Mr. HOLLINGS. Mr. President, I No, sir, we paid for Vietnam. I was in sort of xenophobic isolationist stooge thank our colleague from North Da- the room with George Mahone, chair- who doesn’t get it, but we get it; we all kota because his words are music to man of the Appropriations Committee. see over the horizon. They say, you my ears. He is a student of competi- We called over to Marvin Watson and don’t understand the global economy. tion. He knows there is no such thing said: Ask the President if we can cut What I understand is that when last as free trade. It is only competitive another $5 billion. He said cut it. Why? year we imported $470 billion or more trade. Every nation necessarily tries to Because the President of the United in goods than we sent out, this country build up its manufacturing, its produc- States was very sensitive about guns is obligated to repay that at some tion, its economic strength not only in and butter. He wanted to pay for both, point with a lower standard of living. finished products, but in agriculture. and President Lyndon Baines Johnson You can argue that our budget deficit The significance of the words of our paid for both. That is the last time we is money that we owe to ourselves. You distinguished colleague, Senator DOR- had a balanced budget in the history of cannot argue that with a trade deficit. GAN, is that he is an agricultural Sen- this particular Senator being up here— A $470 billion trade deficit means we ator. For years, I have been trying, back in 1968. Yes, we paid for guns and owe that liability to those living out- with the textile industry in my home butter in Vietnam under President side this country, which gives them a State, to get some awareness of the Johnson. claim on this country’s assets and a fair competition in our textile indus- Let’s go back to the Civil War. claim on a lower standard of living in try, which is the most productive in I was amazed that President Abra- the future for American citizens. the entire world. But since NAFTA, we ham Lincoln instituted not only the in- We must get at the business of solv- have lost 58,100 jobs. As we have passed come tax to pay for the Civil War, he ing this problem. I am not saying we textile bills through the Senate over instituted a tax on dividends. They should put walls around our country. I the past almost 37 years that I have have the unmitigated gall to say what want our marketplace to be reasonably been here, it has been the airline/air- we need now is a cut of all taxes on open, but I want us to be a leader in de- craft industry that has been so strong. dividends when they were giving TRENT veloping the basic rules of trade that Well, Boeing is finally joining me. LOTT the bum’s rush. The party of Lin- are fair to this country’s interests. They have 71⁄2-percent unemployment coln, the party of Lincoln; that is all I That has not been the case, regret- up in Seattle, WA, and Boeing is manu- heard on my TV at home. Where is tably. I wish I didn’t have to make this facturing in China. And our $435 billion Abraham Lincoln when we need him? speech. I made it repeatedly during the trade deficit also includes a deficit in He taxed dividends and instituted the Clinton administration, and I will agriculture. No one has been a better income tax in 1861. They had to repeal probably make it during the Bush ad- protector of the interests of agri- it—they said it was unconstitutional— ministration because trade deficits are culture than the distinguished Pre- by 1870, but they paid for that war. consistently going one way, and that is siding Officer. They sacrificed. up. Jobs are consistently going one It is only the second time in our his- When you have a mutual sacrifice, way, and that is out. tory that we have a deficit in the bal- then we are all committed. I believe We were told by the economists in ance of trade in farm products. That is the country is going to war in Iraq, not support of those who wanted NAFTA not news to this Senator from South just the army. I want to pay for it. I passed—and I voted against it—that Carolina. I remembered when we fi- put in a 1-percent value-added tax to what we will get from Mexico under nally, just in the last few years, got a pay for that war, and I can’t get a hear- NAFTA is the product of low-skilled deficit in the balance of trade in cotton ing before the Finance Committee. labor. Do you know what we get from with China. So I understand it is going I had a hearing before the Finance Mexico now, with the big trade deficit to all agricultural products. Committee when Lloyd Bentsen was we have with them? We get the product We have the facts and figures. I am the chairman. I brought in Dr. Cnossen, of high-skilled labor. The three largest ready to join in the debate for us to the expert who not only instituted that imports from Mexico are the products start treating foreign trade as foreign plan in Japan, the United Kingdom, of high-skilled, not low-skilled labor: aid. It was good that the Marshall plan and Canada, but knew all the ins and automobiles, automobile parts, elec- worked, but now we have to rebuild our outs. He was my expert. He testified. tronics. They are all products of high- economy, and that is a very important As we were leaving the Dirksen Build- skilled labor. This is exactly the oppo- problem. ing that day, former Senator John site of what economists and politicians But there is one more important Chafee turned to Chairman Bentsen said who pushed this fast-track NAFTA thing, and that is this war in Iraq. and said: If we had a secret ballot, we onto this Congress. What we are saying—and I talk ad- would vote that matter out of the Fi- What we are doing now, having visedly—to that GI is this: Look, we nance Committee unanimously because passed fast track over my objection in want you to go into Iraq and we hope we were beginning to run into these as- recent months, is once again negoti- you come back home safely. The reason tronomical deficits as a result of voo- ating new trade agreements. When we want him or her to come back safe- doo 1 under President Ronald Reagan. those agreements come back to Con- ly is not for their welfare, but for our In World War I, we raised taxes to gress, nobody in Congress will have any welfare. We want them to come back pay for the war. During World War II,

VerDate Jan 31 2003 02:43 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.032 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3005 we had a marginal tax rate of 94 per- unified budget. In 1974, Congress implicitly years, and then under Gramm-Rudman- cent to pay for it. In the Korean war, approved the use of a unified budget by in- Hollings we went to 5 years, and later we had a marginal rate of 91 percent. In cluding Social Security trust fund oper- under Vice President Bush we went to Vietnam, we had a 77 percent rate. So ations in the annual budget process. Thus, in years when trust-fund income exceeded 10 years. I suggest for this irresponsible we paid for wars. But not this Con- outgo, the result was a decrease in any gen- Congress, let’s go to 20. You can gress; no, no, we are not going to go. eral budget deficit that otherwise would project anything and just keep on That is their war. I do not know wheth- have been shown—and vice versa. spending because that is exactly what er it is for oil, for democracy, whatever The National Commission believes that we are doing. the arguments—get rid of Saddam—but changes in the Social Security program one thing is positive, I say to the Sen- should be made only for programmatic rea- But let’s jump back to September of ator from Alabama, this Congress is sons, and not for purposes of balancing the the year 2000 when Governor Bush, now not going to go. We are going to give budget. Those who support the removal of President Bush, was running. He said the operations of the trust funds from the he was going to cut taxes. I knew how the bills to the poor GI who fights the budget believe that this policy of making war. I think it is a dirty shame. It is an changes only for programmatic reasons we had just gotten the best 8 years of embarrassment to me that I cannot would be more likely to be carried out if the economic growth in the history of the even get a hearing and nobody to even Social Security program were not in the uni- United States: with an increase in talk about paying for the war. fied budget. Some members also believe that taxes. We were on the tail end of our This is a time of national sacrifice such a procedure will make clear the effect recovery. We still had a deficit. We because it is a time of national com- and presence of any payments from the Gen- were trying to work toward a balanced mitment, but not a national commit- eral Fund of the Treasury to the Social Se- curity program. (Under present procedures, budget, and I will give my colleagues ment on the part of this particular such payments are a ‘‘wash’’ and do not af- the facts and figures. war, I can tell you that now. I have a fect the overall budget deficit or surplus.) The point is, when he talked about 1-percent tax proposed. Those who oppose this recommendation be- cutting taxes, I thought, oh, heavens, SOCIAL SECURITY lieve that it is essential that the operations Let me talk about our friend, Alan of the Social Security program should re- we can’t start that again; we are just Greenspan, the Chairman of the Fed- main in the unified Federal budget because getting back into the black. We had eral Reserve. He came out last week the program involves such a large proportion not gotten into the black in September of all Federal outlays. Thus, to omit its op- and suggested Congress consider 2000 nor in November, the Friday after erations would misrepresent the activities of the Tuesday election, when Vice Presi- switching to an inflation measurement the Federal Government and their economic dent nominee CHENEY, our good friend, that would trim billions of dollars from impact. Furthermore, it is important to en- all cost-of-living adjustments provided sure that the financial condition of the So- said: Yes, that is exactly what we are to the 46 million Social Security re- cial Security program be constantly visible going to do—cut taxes. When Vice cipients. to the Congress and the public. Highlighting President CHENEY made that state- He said: the operations of the Social Security pro- ment, go back and look at the market Lawmakers should consider trimming the gram as a separate line function in the budg- in October, November, December, and benefits, raising the retirement age, or other et would allow its impact thereon to be seen into January. ideas before raising the payroll tax. more clearly. Mr. HOLLINGS. Mr. President, sec- The Republicans are trying to say Chairman Greenspan also debunked the recession started in March 2000. No, the idea advanced by some conserv- tion 21 said to put Social Security off it started in the fall of 2000 because of atives that faster economic growth budget in trust, not to be expended on this tax cut idea and running up these alone would be able to deal with the anything other than Social Security. enormous deficits and running up the shortfalls in the Government’s two big- We spend Social Security trust funds interest costs and the borrowing. gest benefits. on any and everything but Social Secu- He finally came out against this so- rity. Has Mr. Greenspan thought of So what happened was, on January called voodoo or economic growth. The that solution: Just do not spend the 25, Alan Greenspan appeared before the buzzword is growth. It is cut the taxes Social Security taxes on every endeav- Budget Committee. What did the gen- to grow the economy. We can only go or that we could possibly imagine but tleman say? We were paying off too back to what Mr. Greenspan said in Social Security? much debt. When he said we were pay- 1983 in his annual report from the Na- I had a dickens of a time trying to ing off too much debt, that was right, get that written into law. It took me 7 tional Commission on Social Security title, and interest to this young new years, and finally on November 5, 1990, Reform, section 21. I ask unanimous President, George W. Bush, coming George Walker Herbert Bush signed consent to print that section of the re- into office for him to spend up to the into law section 13301 of the Budget port in the RECORD. ceiling. On February 27, I’ll be darned There being no objection, the mate- Act. It is the law of the land: You shall not report from the Congress or the if he didn’t do just that. The new Presi- rial was ordered to be printed in the dent came before the Senate in a joint RECORD, as follows: President a budget including Social Se- curity. But we do, and Alan Greenspan session on February 27 and said: Here is REPORT OF THE NATIONAL COMMISSION ON my budget. I have $2.6 trillion to pro- SOCIAL SECURITY REFORM—JANUARY 1983 started that nonsense back in the tect Social Security. I have $2 trillion SOCIAL SECURITY AND THE UNIFIED BUDGET eighties because he wanted to cover for domestic and defense programs, and (21) A majority of the members of the Na- taking those moneys to go along with tional Commission recommends that the op- what Vice President Bush at that par- that leaves another $1 trillion for un- erations of the OASI, DI, HI, and SMI Trust ticular time called voodoo. foreseen circumstances. Funds should be removed from the unified Let me get up to voodoo 2 because we We had an unforeseen circumstances budget. Some of those who do not support ought to understand, when this reces- on September 11, later that year, but this recommendation believe that the situa- sion in the economy started. I am not let’s go down now and find out when tion would be adequately handled if the oper- an economist, but I am a politician. I ations of the Social Security program were this recession started and when we displayed within the present unified Federal have been chairman of the Budget were really in the black and in the red. budget as a separate budget function, apart Committee. I have worked with Alan I have here the public debt to the from other income security programs. Greenspan. I went over in 1980, right penny as reported by the Secretary of Before fiscal year 1969, the operations of after the elections, to brief President- the Treasury. The latest we have—Feb- the Social Security trust funds were not in- elect Reagan on the budget. We walked ruary 27, 2003—is $218 billion. That is cluded in the unified budget of the Federal in the snow over to the Blair House. I this fiscal year—including September, Government, although they were made avail- will never forget it. President Reagan able publicly and were combined, for pur- October, November, December, Janu- said he was going to balance the budget poses of economic analysis, with the admin- in 1 year, and after the briefing he said: ary, and February, we got this country istrative budget in special summary tables another $218 billion in debt. included in the annual budget document. Be- Oops, I never realized how bad it was. ginning then, the operations of the Social It is going to take me 3 years. That is I ask unanimous consent to have this Security trust funds were included in the when we went from 1-year budgets to 3 printed in the RECORD.

VerDate Jan 31 2003 02:50 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.034 S03PT1 S3006 CONGRESSIONAL RECORD — SENATE March 3, 2003 There being no objection, the mate- The debt to the penny—Continued The debt to the penny—Continued rial was ordered to be printed in the Amount Amount RECORD, as follows: 2/13/2003 ...... 6,414,860,990,193.10 9/28/2001 ...... 5,807,463,412,200.06 The debt to the penny 2/12/2003 ...... 6,400,775,460,992.07 9/29/2000 ...... 5,674,178,209,886.86 2/11/2003 ...... 6,403,775,445,922.86 Amount 9/30/1999 ...... 5,656,270,901,615.43 2/10/2003 ...... 6,400,363,175,585.80 9/30/1998 ...... 5,526,193,008,897.62 2/7/2003 ...... 6,398,607,223,793.01 Current: 9/30/1997 ...... 5,413,146,011,397.34 2/6/2003 ...... 6,401,330,573,005.21 2/27/2003 ...... $6,446,165,774,125.26 9/30/1996 ...... 5,224,810,939,135.73 2/5/2003 ...... 6,387,332,567,273.92 Current month: 2/4/2003 ...... 6,388,239,504,295.45 9/29/1995 ...... 4,973,982,900,709.39 2/26/2003 ...... 6,445,970,533,267.53 2/3/2003 ...... 6,379,432,578,400.38 9/30/1994 ...... 4,692,749,910,013.32 2/25/2003 ...... 6,446,004,668,324.03 Prior months: 9/30/1993 ...... 4,411,488,883,139.38 2/24/2003 ...... 6,446,038,803,864.15 1/31/2003 ...... 6,401,376,662,047.32 9/30/1992 ...... 4,064,620,655,521.66 2/21/2003 ...... 6,446,140,296,660.54 12/31/2002 ...... 6,405,707,456,847.53 9/30/1991 ...... 3,665,303,351,697.03 2/20/2003 ...... 6,446,175,354,465.78 11/29/2002 ...... 6,343,460,146,781.79 9/28/1990 ...... 3,233,313,451,777.25 2/19/2003 ...... 6,442,718,474,145.91 10/31/2002 ...... 6,282,527,974,378.50 9/29/1989 ...... 2,857,430,960,187.32 2/18/2003 ...... 6,437,926,287,364.49 Prior fiscal years: 9/30/1988 ...... 2,602,337,712,041.16 2/14/2003 ...... 6,414,086,191,317.72 9/30/2002 ...... 6,228,235,965,597.16 9/30/1987 ...... 2,350,276,890,953.00 THE DEBT TO THE PENNY AND WHO HOLDS IT [Debt held by the public vs. intragovernmental holdings]

Debt held by the public Intragovernmental holdings Total

Current: 02/27/2003 ...... $3,683,531,753,393.98 $2,762,634,020,731.28 $6,446,165,774,125.26 Current month: 02/26/2003 ...... 3,681,995,211,660.54 2,763,975,321,606.99 6,445,970,533,267.53 02/25/2003 ...... 3,680,546,956,577.64 2,765,457,711,746.39 6,446,004,668,324.03 02/24/2003 ...... 3,683,950,348,867.13 2,762,088,454,997.02 6,446,038,803,864.15 02/21/2003 ...... 3,684,518,370,236.10 2,761,621,926,424.44 6,446,140,296,660.54 02/20/2003 ...... 3,684,115,204,633.82 2,762,060,149,831.96 6,446,175,354,465.78 02/19/2003 ...... 3,681,097,230,200.83 2,761,621,243,945.08 6,442,718,474,145.91 02/18/2003 ...... 3,680,397,155,161.57 2,757,529,132,202.92 6,437,926,287,364.49 02/14/2003 ...... 3,662,059,553,599.40 2,752,026,637,718.32 6,414,086,191,317.72 02/13/2003 ...... 3,661,984,456,977.19 2,752,876,533,215.91 6,414,860,990,193.10 02/12/2003 ...... 3,648,984,143,809.81 2,751,791,317,182.26 6,400,775,460,992.07 02/11/2003 ...... 3,649,088,081,850.16 2,754,687,364,072.70 6,403,775,445,922.86 02/10/2003 ...... 3,648,737,478,114.74 2,751,625,697,471.06 6,400,363,175,585.80 02/07/2003 ...... 3,648,857,135,353.53 2,749,750,088,439.48 6,398,607,223,793.01 02/06/2003 ...... 3,648,874,717,654.07 2,752,455,855,351.14 6,401,330,573,005.21 02/05/2003 ...... 3,636,289,414,701.92 2,751,043,152,572.00 6,387,332,567,273.92 02/04/2003 ...... 3,635,972,465,674.76 2,752,267,038,620.69 6,388,239,504,295.45 02/03/2003 ...... 3,635,739,981,303.79 2,743,692,597,096.59 6,379,432,578,400.38 Prior months: 01/31/2003 ...... 3,636,978,106,813.83 2,764,398,555,233.49 6,401,376,662,047.32 12/31/2002 ...... 3,647,939,770,383.73 2,757,767,686,463.80 6,405,707,456,847.53 11/29/2002 ...... 3,649,352,539,575.36 2,694,107,607,206.43 6,343,460,146,781.79 10/31/2002 ...... 3,586,523,556,148.57 2,696,004,418,229.93 6,282,527,974,378.50 Prior fiscal years: 09/30/2002 ...... 3,553,180,247,874.74 2,675,055,717,722.42 6,228,235,965,597.16 09/28/2001 ...... 3,339,310,176,094.74 2,468,153,236,105.32 5,807,463,412,200.06 09/29/2000 ...... 3,405,303,490,221.20 2,268,874,719,665.66 5,674,178,209,886.86 09/30/1999 ...... 3,636,104,594,501.81 2,020,166,307,131.62 5,656,270,901,633.43 09/30/1998 ...... 3,733,864,472,163.53 1,792,328,536,734.09 5,526,193,008,897.62 09/30/1997 ...... 3,789,667,546,849.60 1,623,478,464,547.74 5,413,146,011,397.34

Mr. HOLLINGS. Mr. President, on tell you we had corporate corruption, Subtitle C—Social Security January 25, 2001, when Chairman and we had 9/11, and on and on, and ev- SEC. 13301. OFF-BUDGET STATUS OF OASDI Greenspan spoke, we were $65 billion in erybody is beginning to believe it. TRUST FUNDS. the red according to the Secretary of They have said it again and again. (a) EXCLUSION OF SOCIAL SECURITY FROM the Treasury. On February 27, 2001, The truth is, as I’ve illustrated with ALL BUDGETS.—Notwithstanding any other when the distinguished new President these numbers, George Bush caused provision of law, the receipts and disburse- gave his speech before the Senate—we this economic downturn, and it is ments of the Federal Old-Age and Survivors were $53 billion in the red. going to stay in a downturn with his Insurance Trust Fund and the Federal Dis- On April 15, 2001, taxpaying day, we newest tax cutting scheme, voodoo 3. ability Insurance Trust Fund shall not be were $94 billion in the red. We had col- Whoever heard of cutting taxes on the counted as new budget authority, outlays, lected all that income tax on April 15 dividends, the marriage penalty, and receipts, or deficit or surplus for purposes and on April 30, 2001, according to the all of these other things they have been of— Secretary of the Treasury, we had a coming up with and saying it is going (1) the budget of the United States govern- surplus. And remember, they had been to stimulate the economy? They know ment as submitted by the President, babbling all during the Christmas holi- there is enough stimulus. They are (2) the congressional budget, or days and January and February of $5.6 under subterfuge, hiding, camouflaging trillion in surplus money, that we are (3) the Balanced Budget and Emergency tax reform under the auspices of a Deficit Control Act of 1985. paying off too much debt. There was all stimulus. The truth is, on September 30 kinds of surplus talk. (b) EXCLUSION OF SOCIAL SECURITY FROM Let’s go to May 1, 2001. We were $23 last year, we ended up $428 billion in CONGRESSIONAL BUDGET.—Section 301(a) of billion in the black. On June 1, we were the red. President Bush, by his own the Congressional Budget Act of 1974 is $4 billion in the black. But on June 7, budget, without the costs in Iraq, has amended by adding at the end the following: the President signed the $1.5 trillion already projected a $554 billion deficit ‘‘The concurrent resolution shall not include this year, and his budget proposal for the outlays and revenue totals of the old age, tax cut, voodoo 2—we had voodoo 1, so survivors, and disability insurance program he gave us voodoo 2. And what hap- next year is $569 billion in the red. That is $1.5 trillion that we have not established under title II of the Social Secu- pened? What happened after June 7? By rity Act or the related provisions of the In- June 28, we were $52 billion in the red, paid for, that we are infusing as a stim- ternal Revenue Code of 1986 in the surplus or and on September 10, one day before ulus to the economy. We know we have deficit totals required by this subsection or the tragic September 11, we were $99 to get ourselves on track as quickly as in billion in the red. We only had 20 more we possibly can. days of that fiscal year. If you go into I ask unanimous consent that section * * * * their lingo, their little song and dance 13301 be printed in the RECORD. We said it is the law now we are not routine, they are trying to say they in- There being no objection, the mate- supposed to use Social Security, and herited a recession—they did not cause rial was ordered to be printed in the they continue to do so. What we really it, but they inherited a recession. They RECORD, as follows: have, in essence, is Enron accounting.

VerDate Jan 31 2003 02:50 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\A03MR6.012 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3007 Why do I call it Enron accounting? cent of what it would cost in Cali- and argued cases before the United Well, turn to page 1 of the budget. We fornia. States Supreme Court. He has been at will find on page 1 the Bush Adminis- That is the whole situation. The Sec- one of America’s greatest law firms tration saying they firmly believes in retary of Commerce has the duty of since. controlling the deficit and reducing it listing 500 critical items to our na- He received the highest possible rat- as the economy strengthens and our tional security. Senator, we have a $5 ings of his supervisors in the Depart- national security interests are met. billion deficit in the balance of trade in ment of Justice almost his entire time. They go on to say that compared to the those critical items. We will not be In the Department of Justice he was overall Federal budget and the $10.5 able to go to war the next time because being supervised by President Clinton’s trillion national economy, the budget we are not producing. We will have to supervisors. They gave him the highest gap is small by historical standards. call other nations up and ask them to rating they could give. They even What did Kenny boy Lay do? The please send the goods to us so we can noted how he was disciplined and fol- same thing. On page 1, he made his gear up and get ready to go to war. lowed all the policies and procedures of stockholders feel good, by saying the If my friends want to stimulate the the Department of Justice. company and the corporation are doing economy, let’s give $30 billion back to The American Bar Association fine. the States. We passed Leave No Child checked him out. They interviewed What is the Bush Administration Behind, but we left the money behind. lawyers on the other side of his cases; doing? Trying to make all the tax- The States are really strained paying they interviewed judges before whom payers feel good by saying this deficit educational budgets. We passed the he practiced; they talked to friends. is small on page one. Disabilities Act, but we have never They came up with a rating, unani- But if we turn to page 332 in the His- funded it. Now we have homeland secu- mously ‘‘well qualified,’’ the highest torical Tables, we will see the overall rity, the first responders. I fought like possible rating the American Bar Asso- deficit is $554 billion—not what they the dickens to get the seaport security ciation gives. They did not give it by a had, $159 billion on page 1. It is actu- bill funded for a whole year. I got the split vote but unanimously. That is ally $554 billion. So rather than a def- authorization, but I could not get the very rare. They do not do that very icit of 2.7 percent of the GDP, it is 5 money. often. He is exceptionally well quali- percent. In fact, it is 5.2 percent to be The States need it back at the ports, fied. accurate. they need it back at the public schools. I heard his testimony before the Sen- If they are trying to talk in histor- They need the money. While we think ate Judiciary Committee. I thought he ical terms, let’s talk—we are com- we will stimulate the economy to cre- was responsive and intelligent and plaining about everybody in Europe, ate jobs, they are doing everything to courteous and kept his composure on and we are saying in Europe the trou- downsize, fire, let the teachers go, and the tough questioning. Having argued ble with those folks is they are not creating unemployment as fast as we 15 cases before the Supreme Court of being responsible. I say to the Senator are trying to create employment. the United States places him in a very from Vermont, on page 117 of the same The best stimulus, money that will select group of lawyers. I am sure there budget tables, we find out that the debt have to be spent one way or the other, are not more than 20 practicing law- is 64.8 percent of the GDP. is $30 billion back to the Governors. yers in America today who have argued Under the Maastricht Treaty, one That is not partisan because the major- 15 cases before the Supreme Court of cannot be a member of the European ity of the Governors are Republican. I the United States. You are not selected Community unless their annual deficit am trying to help reelect those Repub- for that unless people believe you are is less than 3 percent. Ours is up to 5 lican Governors. very good at your business. The aver- percent. They can be subject to fines if I yield the floor. age guy cannot walk in and argue a their debt exceeds 60 percent of the The PRESIDING OFFICER (Mr. case before the Supreme Court under GDP. But by the Bush Administra- SUNUNU). The Senator from Alabama is normal circumstances. We have an ex- tion’s own facts and figures ours is 64.8 recognized under the previous order. ceptionally qualified nominee. percent. We could not even become Mr. SESSIONS. I appreciate the com- What is this brouhaha all about? members of the European Community, ments of Senator HOLLINGS, and I un- What is causing us to be subjected to but we are running around criticizing derstand clearly, and I am glad he the first filibuster in the history of the them about not doing this and not speaks with no accent, which I appre- United States involving a nominee for doing that. ciate. a circuit court of appeals judge, or a Let me say about the French—I He has always been very rigorous on district court judge for that matter, in fought under the French, and they were this issue. I appreciate that. We need the history of this country? We are not brave in World War II. Do not give me to watch spending around here and able to identify a single active fili- this stuff. They had a heyday with the need to watch it in all areas. Of course, buster, as we have seen today, on a PR thing on the weekend shows about the amount of money we are spending nominee for circuit court of appeals or the French, that we do not care, we on this war—it is estimated from $40 to for the district court. It is stunning will go in any way. But the main thing $95 billion—compared to the economic this is so in light of the fact we have an is to realize that we have worked our- loss and the internal expenditures we individual who lived the American selves into a situation, as Senator DOR- have had to put out as a result of the dream, who has been a success in every GAN says, where it does not make sense attack of September 11, is very small. category of life, whose integrity has to produce in the United States of So we have to do something and I don’t never been questioned, and whose pro- America. think the Senator suggests otherwise fessionalism and skill is doubted by no As politicians, Republican and Demo- there. one. crat, we say: Before you open up a We are here talking about one of the I ask, what is it all about, Alfie? manufacturing company you have to finest nominees to come before the What is this about? The real deal here have a minimum wage, clean air, clean Senate, Miguel Estrada, for the Circuit is the question of the role of judges: To water, Social Security, Medicare, Med- Court of Appeals for the DC Circuit. what extent are they empowered to be icaid, safe working place, safe machin- Miguel Estrada is a stunningly quali- activists? Should they be able to uti- ery, plant closing notice, parental fied person. He came here at age 17 lize and employ their own best judg- leave. Or you can go to China and open from Honduras, top of his class at Co- ment about matters and read that into your plant their for wages of 58 cents lumbia, magna cum laude, Phi Beta the statutes and the Constitution they an hour, and there is none of that. Kappa, on to Harvard Law, editor of interpret, or should they be bound by I asked a high-tech friend of mine on the Harvard Law Review, clerk for a the plain meaning of those statutes? the west coast, when he was expanding, Second Circuit Court of Appeals, the This is a fundamental question. to give us a chance and come back to sister court to the DC court he would There is in the law schools of Amer- South Carolina. He said he does not be sitting on. He served in the Solicitor ica, in many of the outspoken profes- produce anywhere in the United States. General’s Office of the Justice Depart- sors and proponents of law in America, He said he produces in China for 10 per- ment where he wrote appellate briefs a belief that judges have a duty to act

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.038 S03PT1 S3008 CONGRESSIONAL RECORD — SENATE March 3, 2003 and to make decisions and even so act fornia struck down the Pledge of Alle- this far in distorting the original in- politically. In fact, they say it is a giance, we met that day. People came tent of our Constitution concerning the myth and a falsehood to suggest and down on the floor and spoke out. The separation of church and State and even to believe that judges are above majority leader at that time, Senator what that actually means. politics. They say it is all politics. Why TOM DASCHLE, said: People say it says we must have a do they say that? This is part of a dan- But this decision is nuts. This decision is wall of separation between the church gerous trend in America. Is politics in just nuts. and State. The Constitution never said everything? He talked about it a little bit there. that. Thomas Jefferson said that late The Critical Legal Studies Group He gave up the floor, and my good in his life, long after he had left public that has been afoot in law schools over friend Senator REID from Nevada, the office. He wrote the Baptist Associa- a number of years believes you cannot assistant Democratic leader, spoke and tion and used that phrase—there tell anything about law; that you can this is what he said: should be a wall of separation between take words and statutes and they can I have the good fortune that two of my church and State. No one knew pre- mean anything you want them to sons have been law clerks for the chief judge cisely what he meant. It was never mean, and they believe those laws were of the Ninth Circuit. ratified by the people. He was not even just written by those in power to op- That is where these panel members at the Constitutional Convention, Jef- press those not in power. They do not were, they were a part of the ninth cir- ferson wasn’t, when the Constitution believe there are rules of the game all cuit. was written. What we must do to determine what of us must live by that are critical to In fact, one of my sons was his administra- our economic development. They be- tive assistant. He was a judge from Nevada, the Founding Fathers thought is look lieve it is all politics, it is all power, served on the very prestigious Ninth Circuit. at that document, look at the Con- and there is no truth and there is no I have had calls from my sons today. They stitution itself. They debated the issue. order fundamentally. Some call it are embarrassed about what has taken place They were concerned about it. Virginia deconstructionism, and others call it in that Ninth Circuit. They said: Dad, don’t had an established church. It was the worry about it because the court will meet the trends in America as opposed to Episcopal Church, the Anglican en banc [the whole court will] and reverse it. Church, the Church of England. The modernism, the idea that there is no These are two of the most liberal members truth; one person’s opinion is just as Americans didn’t like that. They said, on the Court. They come up at random. It We are going to put in our Constitu- good as another; We can say what we was by chance Goodwin and Reinhardt were want; I’m OK, you’re OK. That kind of thrown together [on this panel] . . . tion; no one religion is going to be given a predominance over the other. idea is really at the heart of some of But it wasn’t Goodwin and Reinhardt So they wrote the first amendment and the problems we are having. on the panel. Mr. REID was in error they said Congress—that’s us, the U.S. I often tell the story of Hodding about that. But Mr. REID said: Carter, who used to work for President Congress—shall make no law respect- I have great faith the court will reverse ing an establishment of a religion nor Carter. He was on Meet The Press, itself when they sit en banc. where he used to be a regular member. prohibiting the free exercise thereof. Well, I had hoped so, too. But I spoke They forget all about the free exer- He made a comment the other day on that day. I made clear I was not at cise clause. They simply say every- where he said we liberals have to admit all sure the full Ninth Circuit Court thing that even mentions God in public it, we are asking the courts to do for us would reverse that opinion because I life is an establishment of a religion. that which we can no longer win at the have been studying the Ninth Circuit. I That is a misreading of the Constitu- ballot box. That is basically what have observed its irrational and activ- tion. President Bush has been unhappy with. ist behavior for some time. I have Why they have it in their heads that That has been the concern he has ex- noted its problems. I was not at all cer- these things should be so closely scru- pressed with the legal system. He sim- tain it would be reversed. In fact, I said tinized and should be so scrutinized by ply wants judges who will follow, first, as much. I said: the courts and struck down by the the Constitution, and then the statutes I hope on full rehearing en banc the court courts is beyond me. We have been on and lawful acts that are enacted pursu- will reverse the opinion. I am not absolutely a trend for a little over 50 years. It was ant to the Constitution. If the lawful sure it will because there are others on the not a function or a problem for the acts that are adopted violate the Con- court I have no doubt will join in this opin- first 150 years of this country’s exist- stitution, the Constitution trumps and ion. ence, but in recent years it has devel- the court should say so. The Constitu- I made other references to that. So oped in that way. tion controls much of what goes on in the Ninth Circuit was—it was a test As a result of the history of the Su- this country, and it ought to be the No. here. Everybody says don’t worry preme Court rulings over the last 50 1 thing. So we follow that. about this random opinion. years, there is a real ambiguity con- It is academic when we talk about I have been reminded that Goodwin cerning the meaning of the separation those words, but there are various and Reinhardt were on that panel, of church and State. cases that come along that point out along with another judge. It was a I am going to show how I think activ- the matter to us very clearly, none three-judge panel. ism plays a role in these decisions. more significant than the ruling in So I wondered, will they reverse it? People make out it does not make any California over the Pledge of Alle- The way it works is if a panel of a larg- difference here what kind of judges we giance, striking down the pledge as er court, the 24 judges on the Ninth have on courts, unless they happen to being unconstitutional because it had Circuit, if a three-judge court rules and be judges who show restraint, who be- the words in it ‘‘under God.’’ They said that opinion is significant and may im- lieve in following the law. They get at- that was an establishment of a religion plicate the rest of the law, and the full tacked by our friends over here. But that is prohibited by the Constitution; court, 24 judges, might disagree, they judges who advocate utilizing law and that these two words established a reli- have an en banc hearing, they review judicial opinions as a method to carry gion. the panel’s decision, and they render on a political agenda, they are quite all That is beyond my comprehension. It an opinion, either affirming it or not right. Then, when they strike down the appears to be clearly contrary to the affirming it. Pledge of Allegiance, they run down view of the U.S. Supreme Court, al- What happened here just Friday was here and say how awful it is. ‘‘We are though the U.S. Supreme Court, I will that the Ninth Circuit decided not to just shocked.’’ And it is the judges and admit, tends to be inconsistent on this rehear the ruling made by three-judge the philosophy of law that supports issue. panel—in effect, affirming the opinion them that has led us to this point. I remember when that happened it striking down the constitutionality of Let me just read what Judge Paez caused quite a stir, particularly on the Pledge of Allegiance of the United said one time in a written article. both sides of the aisle here. But I no- States, not a totally surprising thing Judge Paez has been referred to as a ticed my friends across the aisle were to me. judge who was not fairly treated here. particularly concerned about it and It is surprising that we are this far He was confirmed. Thirty-nine Sen- were vocal. So after the panel in Cali- along. It is surprising we have gone ators voted against him. He does sit on

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.040 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3009 the Ninth Circuit Court of Appeals This is not to say that Federal judges I guess that is the way the EU votes. today. And from what I can tell from should be completely sequestered from the Maybe we ought to take a vote in the this opinion, he joined in the opinion attitudes of the Nation we serve. Even UN. Is that what we want to do? Let’s though our service is accomplished not affirming the striking down of the through channeling popular sentiment but take the EU, and we will let the Euro- Pledge of Allegiance. through strict adherence to constitutional peans decide what our societal trends So this is what he wrote about his principles, the Constitution contemplates are. philosophy as a judge. He said it in- occasions when we must be responsive to I will tell you one thing: The murder cludes: ‘‘an appreciation of the courts long-term societal trends when determining, rate in Great Britain is going through to act when they must, when the issue for example, that which is cruel and unusual. the roof. And since the death penalty has been generated as a result of the So the court says they have been em- has come back into fashion in America, failure of the political process to re- powered now to determine ‘‘long-term the murder rate has been plummeting. solve a certain political question. Be- societal trends,’’ and that they can use Thousands of people, on a percentage cause in such instance,’’ he says, those societal trends now to go back basis, today are alive, not murdered, ‘‘there is no choice but for the courts and take words such as ‘‘cruel’’ and because of the crackdown on violent to resolve the question that perhaps ‘‘unusual,’’ and give them a new mean- crime in this country. I do not think ideally and preferably should be re- ing. anyone can dispute that. He talks solved through the legislative process.’’ Let’s talk about that very one. That about also, ‘‘this broader long-term so- Do you see what Judge Paez said is the first one he mentioned. I think it cial conscience’’ should guide us in de- there? And I opposed his nomination is a good one for us to talk about be- ciding how to interpret statutes. Well, for several reasons. But this was a core cause cruel and unusual punishment is of course, that is bogus. Who empow- reason. What he said was, if the legisla- prohibited by our Constitution. You ered this lifetime-appointed person to ture does not act on something we en- cannot impose cruel and unusual pun- do that? lightened ones think they should act ishment. See, that is an antidemocratic act. on, then the courts are empowered to A number of years ago, we had two Judges, by being given lifetime ap- act. members of the Supreme Court—they pointments, are unaccountable. They You show me where that is in the are no longer there; both are deceased serve a great function in that they can Constitution. Let’s put it really sim- now—Justice Brennan and Justice enforce the law, even though it might ply: When a legislature does not act on Marshall, who concluded that due to be, in the short term, unpopular. But a matter, that represents a decision of evolving social trends, cruel and un- we depend on them very deeply. We de- a legislature. It decided not to act. usual punishment meant we should not pend on them to show restraint, to not That is a decision of that legislative have the death penalty. And they dis- impose their views, but to honestly and branch just as certainly as if they had sented on every single case that came fairly interpret the law. voted to make a change. before them imposing death because We have some real problems here Legislatures are not required to act. they believed it violated the constitu- with the Supreme Court, too. The Su- If they do not do something that judges tional provision concerning cruel and preme Court is very confused about the think ought to be done, where does it unusual punishment—a breathtaking opinions on separation of church and become the idea that judges can im- position to take. I call it the high state. But they never went this far. pose that by reinterpreting the mean- water mark of judicial activism. In fact, according to Judge Where did they get this idea there ing of the statutes and words of the O’Scannlain, who wrote a dissenting had been evolved standards? It was not Constitution to impose their agenda? opinion from the refusal of the court to from polling data, because the Amer- That is a big deal for me. even consider the matter en banc, Jus- ican people overwhelmingly favored Now, Judge Reinhardt wrote a part of tice O’Scannlain details at least four the death penalty. It was not from the this recent opinion on the Pledge of Al- references in previous Supreme Court legislative actions of legislatures legiance. Let me tell you what he said. opinions in the line of cases on which around the country, because very few I just picked this up. It jumped right they relied to strike down the school had eliminated any death penalty stat- out at me because I am sensitive to Pledge of Allegiance recitation as af- utes over the years. In fact, it was a this issue. I have to run for election. I law in a majority of the States in the firmatively blessing or okaying the have to go back to Alabama and defend country. It was a law in the United Pledge of Allegiance. what I did and what I voted on, just as He quotes a number of those cases. States of America. So I do not know the Presiding Officer did in his State. Justice O’Connor and others have made where they came up with this idea. We have to defend what we do. We are They did not like it. Justice Brennan that quite clear. So the question is, accountable. and Justice Marshall decided in their Does this phrase, ‘‘under God,’’ in the But judges are given lifetime ap- heart that America ought no longer to Pledge of Allegiance establish a reli- pointments. Their position is for as have a death penalty, so they set about gion or is it a religious act? long as they live, with good behavior. combing the Constitution, and they Justice O’Scannlain says: Common They would have to virtually be con- came up with the idea that it was cruel sense would seem to dictate otherwise, victed of a felony before they could be and unusual. as the public and political reaction removed from office. They can hold The Constitution has to be fairly in- should show and make clear. If reciting their position for as long as they want terpreted. It said: cruel and unusual. the pledge is truly a religious act in to hold it. And sometimes they hold it Even if you considered it cruel, was it violation of the establishment clause, for longer than their health and abil- unusual? Every State and every Colony then so is the recitation of the Con- ity. in America and the British Empire had stitution itself or the Declaration of But I want to make clear one thing: the death penalty at the time the Con- Independence. That most of our Federal judges do an stitution was written. We hold these truths to be self-evi- excellent job, and most of them do Within the very corners of the Con- dent, that all people are created equal. show restraint. But there has been a stitution itself are multiple ref- They are endowed by their Creator continual battle over this philosophy, erences—six or more, as I recall—to the with certain inalienable rights. that you can make statutes say what- death penalty. It talks about capital That is not something we earned here ever you want them to say, and ‘‘good’’ crimes. It talks about that you cannot on Earth, but part of the philosophy of judges should deliberately use their deprive one of life, liberty, or property. the founding of our country is in the power to effect the public good as some How do you deprive them of life except heart of the most famous words in the group of people, whoever they are, by the death penalty without due proc- Declaration of Independence. ‘‘Without think they should. ess of law? our aid He did us make.’’ That is how So there was some political uproar So this was thunderous. So we have we got here. over the striking down of the Pledge of this judge voting to strike down the That is what a majority of the Amer- Allegiance, and Judge Reinhardt, on Pledge of Allegiance, saying that he is ican people believe. Some 93 percent the Ninth Circuit, said we ought not to empowered to utilize ‘‘long-term soci- believe in God. They are not trying to pay attention to that. But then he said: etal trends.’’ impose their will on everybody. But

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.043 S03PT1 S3010 CONGRESSIONAL RECORD — SENATE March 3, 2003 they do not believe, and I do not be- but they said it, and they said that was preme Court in Wallace v. Jaffree, 1985. lieve, the Constitution prohibits any too much. That was the establishment It dealt with the constitutionality of reference in the public sphere to a of a religion effect. That could be an Alabama statute authorizing a 1- higher being. something we could debate, but cer- minute period of silence in public He goes on and says: Are we going to tainly there is some basis for that rea- schools for ‘‘meditation or voluntary eliminate the Constitution, which soning. prayer.’’ makes references to God, the Declara- Then he goes on to note, in a foot- The Supreme Court said that was un- tion of Independence, the Gettysburg note, the court said this in Vitale: justified and struck that down. What a Address, which uses the phrase ‘‘under There is of course nothing in the decision ridiculous opinion that was. When I God’’? Are we going to prohibit that? reached here that is inconsistent with the was a lawyer practicing before courts, I The national motto, ‘‘In God We fact that school children and others are offi- never said those kinds of words about Trust’’? How about those words right cially encouraged to express love for our courts. I took my lumps if I didn’t country by reciting historical documents agree with opinions, and I accepted the up there, ‘‘In God We Trust,’’ in letters such as the Declaration of Independence 6 inches high? Are they going to come rulings of the court. I think we ought which contain references to the Deity or by to be respectful. Here I am in a coequal down here with a chisel? I guess we will singing officially espoused anthems which bring our friends from the Ninth Cir- include the composer’s professions of faith in branch, and I am an elected politician cuit over here with a chisel and let’s a Supreme Being, or with the fact that there now and, I am telling you, there is no see them chop away at that. are many manifestations in our public life of basis for that opinion. That doesn’t make sense, does it? belief in God. Such patriotic or ceremonial So the Supreme Court is all confused But that is what we have in this opin- occasions bear no true resemblance to the about this. Some of the problems in the unquestioned religious exercise that the Ninth Circuit are due to their confu- ion. How about the national anthem? State of New York had sponsored [by man- Justice O’Scannlain continues: sion. It is time for them to straighten dating a State prayer.] up and figure this thing out and give us Such an assertion would make hypocrites Then the next case in this line of decent principles that will guide us. It out of our founders and would have the effect cases came, Abbington School District of driving any and all references to our reli- is clear under Supreme Court law gious heritage out of our schools and eventu- v. Schempp. They required in Pennsyl- today that conducting a formal reli- ally out of our public life. vania that at least 10 verses from the gious observance conflicts with the Holy Bible shall be read without com- I don’t think that is an exaggeration subtle rules pertaining to prayer and ment at the opening of every public at all. the religious exercise of students. How are we going to stop this? school each day. I guess they would Prayer was considered an overt reli- In this Senate, we have the odd event probably put them in jail today for gious exercise and that ‘‘prayer exer- that we have a paid Chaplain, as we even expressing that. So they read the cises in public schools carry a par- have in the military. Our Chaplain bible verses every day in the school. ticular risk of indirect coercion.’’ comes in before we start the day, and This was followed by a recitation of the But the Court, in a third case, Lee v. we have a prayer. I am surprised they Lord’s Prayer, and finally the class Weisman, discussed this very issue haven’t sent the 82nd Airborne over would recite the Pledge of Allegiance. again. It took pains in the Lee case, here from across the street to stop The court struck down the Bible read- which is the last of the cases I am cit- that. They begin every session of the ing and the practice of reciting the ing here. The Court took pains to Supreme Court of the United States school prayer as a State-proscribed re- stress the confines of its holding; that with the words: ‘‘God save these United ligious ceremony but said nothing at is, how the holding was limited, con- States and this honorable court.’’ all about the Pledge of Allegiance. Why cluding that ‘‘we do not hold that Every court I have been in uses those didn’t they strike that down? every State action implicating religion Here we have the Ninth Circuit going words. ‘‘God save these United States is invalid if one or a few citizens find it off on a tangent, clearly by implication and save this honorable court’’ is what offensive,’’ and that ‘‘a relentless and contrary to the views even of the U.S. all-pervasive attempt to exclude reli- the clerk says when he calls the court Supreme Court, which have gone too gion from every aspect of public life to order all over America today. But far in their hostility to religious ex- could itself become inconsistent with children in the Ninth Circuit, the larg- pression. Even Justice Brennan, who I the Constitution.’’ est circuit in America, including some noted earlier was the leader of the ac- Now, that is strong and important 9 million schoolkids, are prohibited tivist group at the high water mark of language. ‘‘A relentless and all-perva- now from saying the Pledge of Alle- activism, said this in that case: sive attempt to exclude religion from giance. every aspect of public life could itself This opinion was written, although I For Justice Brennan, ‘‘religious exercises in the public schools present a unique prob- become inconsistent with the Constitu- am not sure legally how much it lem’’ but ‘‘not every involvement of religion tion.’’ I certainly agree with that. Now, meant, but after this Congress voted on in public life violates the Establishment I will point out that the Ninth Circuit, the matter a few months ago. If Justice Clause.’’ He warned that ‘‘[a]ny attempt to oddly, failed to accept even rehearing Reinhardt believes his evolving social impose rigid limits upon the mention of God by the full Court. Why did they do consciousness has gotten to the point . . . in the classroom would be fraught with that? The Senator has expressed some that America no longer wants to say dangers.’’ Specifically, he wrote that ‘‘[t]he reference to divinity in the revised pledge of ideas about why. They were not very ‘‘under God,’’ he ought to listen to his complimentary and did not suggest it elected representatives because right allegiance . . . may merely recognize the historical fact that our Nation was believed was because of high ideals that they re- after it happened, we voted by 99 votes to have been founded ‘under God.’ Thus re- fused to even have the full Court re- last June on the floor of this Senate to citing the pledge may be no more of a reli- view this panel. But I point out that reaffirm the Pledge of Allegiance and gious exercise than the reading aloud of Lin- the Seventh Circuit Court of Appeals, a the words ‘‘under God.’’ Every Senator coln’s Gettysburg Address, which contains il- coequal circuit with the Ninth Circuit, in here voting that day voted for it. lusions to this historical fact.’’ already considered the pledge case, and Maybe one didn’t or one was absent. It Historically, it is a fact that we be- it has found it did not establish a reli- is impossible for me to believe that lieve in this country, or most Ameri- gion. they think this is a result of any soci- cans believe, this country was founded So, normally, when a circuit is wres- etal evolution that causes this. under God. tling with whether or not a case is im- Justice O’Scannlain goes on and Then we had one of the more bizarre portant and whether or not there is a talks about the Engel v. Vitale case cases that came out of Alabama. Ap- dispute in the law, they would much which eliminated prayer in schools, the parently out of pique, the Supreme more normally ask for and allow a re- first such case. They said they could Court became angered that the State of hearing to occur en banc. not say a prayer written by the State. Alabama passed a law that prescribed a The Seventh Circuit, when they con- They said that was inconsistent with moment of silence or meditation before sidered it, framed the question pre- the establishment clause. The State each day as school commenced. Can cisely this way: ‘‘Does ‘under God’ wrote a prayer, and the kids were sup- you imagine that? How horrible this is. make the Pledge a prayer whose recita- posed to say it. They could refuse to, It took the attention of the U.S. Su- tion violates the establishment clause

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.045 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3011 of the first amendment?’’ They an- when Congress stated that there was have, as I mentioned—hopefully, we do swered that question in the negative. ‘‘to be observed by acknowledgement not have any left—those who believe The Supreme Court, according to Jus- with grateful hearts the many and sig- the Constitution itself, which pre- tice O’Scannlain, has insisted that in- nal favours of Almighty God.’’ Con- scribed how the death penalty should terpretations of the establishment gress made Thanksgiving a permanent be conducted, prohibited death pen- clause must comport ‘‘with what his- holiday in 1941, and Christmas has been alties. We have a problem in America tory reveals was the contemporaneous a national holiday since 1894. Are in our legal system. It is the greatest understanding of its guarantees.’’ ‘‘The Newdow’s constitutional rights vio- legal system in the world. It is a sys- line we must draw between the permis- lated when his daughter is told not to tem that has protected us in extraor- sible and the impermissible is one attend school on Thanksgiving? On dinary ways, but we have to have which accords with history and faith- Christmas Day? Must school outings to judges who show restraint and who fol- fully reflects the understanding of the Federal courts be prohibited, lest the low the law. Founding Fathers.’’ children be unduly influenced by the I notice two judges about whom peo- So we are going to interpret the first dreaded intonation ‘‘God save these ple expressed concern, both nominated amendment to prohibit the establish- United States and this honorable by President Clinton and confirmed, ment of a religion and also prohibit Court.’’? Are the schoolchildren not to both of whom I opposed, although I Congress from passing any law that go to the Supreme Court to hear argu- voted for 95 percent of President Clin- would restrict the free exercise of reli- ments because it invokes God before ton’s nominees—they have on separate gion. We have to ask ourselves what Court starts every day? panels, for example, authored opinions did it mean when they wrote it? As Justice O’Scannlain says: to overturn California’s three-strikes- Judge Fernandez, who dissented on the A theory of the Establishment Clause that and-you’re-out law. That has been on original opinion, so eloquently points would have the effect of driving out of our the books for years. As soon as they out in his dissent: Only the purist exer- public life the multiple references to the Di- get on the Federal bench, they say the cise in sophistry could save multiple vine that run through our laws, our rituals, U.S. Constitution says your three- references to our religious heritage in and our ceremonies is no theory at all. strikes-and-you’re-out law passed by our national life from Newdow II’s— Of course, the Supreme Court, as I the people of California that has helped that is the case in California—axe. Of mentioned earlier, in several different precipitate a rapid decline in crime in course, the Constitution explicitly cases, has directly, and by implication, California and save thousands and mentions God—this is Justice affirmed the Pledge of Allegiance. thousands of lives is unconstitutional. O’Scannlain’s opinion quoting Judge A full hearing of this case, which I I think these are activist opinions. I Fernandez—as does the Declaration of am sure the Supreme Court will hear, think they will be reversed. In Andrade Independence, the document which will make clear this pledge will stand. v. the Attorney General of California, marked us as a separate people, de- I hope also they will take it upon Judge Paez ruled a lifetime sentence clared us independent. The Gettysburg themselves to deal with the confusion for a seven-time repeat offender was Address, inconveniently for the major- they have created in this inconsistent cruel and unusual. Seven times, Mr. ity, contains the same precise phrase— body of law. President, and that number includes ‘‘under God’’—found to constitute an Even Justice Brennan, that most only his Federal offenses. Andrade also Establishment Clause violation in the stalwart supporter of separation of had more than a few convictions in pledge. church and State, acknowledges that State court. While he was on probation After Newdow II, are we to suppose some official recognition of God is ap- for a 1982 conviction, he burglarized that, were a school to permit—not re- propriate ‘‘if the Government is not to three separate residences. Still, a life- quire—the recitation of the Constitu- adopt a stilted indifference to the reli- time sentence under the three-strikes- tion, the Declaration of Independence, gious life of the people.’’ and-you’re-out rule was too much for or the Gettysburg Address in public The decision reached in this case, I Judge Paez. He found the statute that schools, that, too, would violate the submit, does precisely that: Justice provided for it unconstitutional. Constitution? Were the ‘‘Founders of O’Scannlain says it adopts a stilted in- In Brown v. the Attorney General of the United States . . . unable to under- difference to our past and present reali- the State of California, Judge Berzon stand their own handiwork?’’ Were the ties as a predominantly religious peo- held that a 25-year term of imprison- Founders themselves unable to under- ple. ment for two defendants convicted of stand? When they put in the Constitu- Justice O’Scannlain goes a little fur- petty thefts, Ernest Bray and Richard tion that we would not establish a reli- ther. He raises another point. Really, Brown, constituted cruel and unusual gion, did they have any idea we were when it is all said and done, this opin- punishment. The reality is each defend- going to be striking down any ref- ion does not stand for neutrality in re- ant deserved their 25-year term of im- erences in their own Declaration of ligion; this decision stands for and, in prisonment. Each had a laundry list of Independence to God, or in their own fact, favors atheism over religion. The offenses on their record. Defendants Constitution of which this was just a absolute prohibition of any mention of Bray and Brown are the type of career part? Of course, they didn’t. God in our schools creates a bias criminals that California’s three- What that says is, of course, that was against religion. The majority simply strikes law attempted to keep off the not what they intended. They never in- cannot credibly advance the notion streets. Bray had four separate robbery tended, when they passed the first that it is neutral with respect to belief convictions. Robbery is the taking of amendment to the Constitution of the versus nonbelief. It affirmatively fa- property through force and violence. United States of America, that we vors nonbelief over belief. One wonders, One of those robberies was a situation would eliminate all references to a then, does atheism become the default in which shots were fired at the victim, higher being in America. religion protected by the establishment and one where the victim was hit and Well, as Justice O’Scannlain notes, clause? kicked, not even considered by the somewhat ingeniously indeed, that the We have people who object to putting jury. The jury did not get to consider recitation of the Declaration of Inde- in one clause in textbooks. I am not his other offenses—obstructing and re- pendence would seem to be a better one who thinks church people ought to sisting a public officer, and trespass in candidate for the chopping block than write the creation story or the evo- 1979, possession of a dangerous weapon the pledge, since the pledge does not lution story in our textbooks. I think in 1985, being under the influence of a require anyone to acknowledge the per- it would be appropriate, however, that controlled substance in 1991, and petty sonal relationship with God to which our textbooks say that many believe theft with a prior conviction while out the declaration speaks. So, too, with the creating of life on this planet was on bail for the three-strikes offense. the National Anthem or our national conducted by a higher being. I do not Brown’s prior convictions included motto, ‘‘In God We Trust.’’ see any problem with that. But some two counts of second-degree burglary, What about our national celebration oppose even such a statement as that. two counts of assault with a deadly of Thanksgiving Day? It goes back to We have a lot of weird actions going weapon, and a robbery conviction—two President George Washington’s time on out there today by our courts. We counts of assault with a deadly weapon

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.051 S03PT1 S3012 CONGRESSIONAL RECORD — SENATE March 3, 2003 and a robbery conviction. Additionally, Mr. LEAHY. My point being, there sistent rulings on the separation of he had eight other convictions on his are checks and balances in here. church and state, on the observance of record. Judge Berzon said it was cruel Mr. SESSIONS. Well, the checks and an issue of any kind of reference to God and unusual to put these offenders balances did not work in the Ninth Cir- in public life. away for this period of time. cuit, as Senator REID guaranteed vir- I did have a church group that came I am glad to see my distinguished tually it would when he made remarks and visited me. They said they were in colleague from Vermont in the Cham- suggesting that panel was going to the Supreme Court. They were very ber. I supported a judge from Vermont. override the three-judge panel. sincere, wonderful young people. They He had a good name, William Sessions. The problem is, and the reason it is took their faith seriously and they He has been on the bench only a few important, is these are rulings that re- took a moment over to the side and all years and he has declared that the way flect a person’s personal views. A judge huddled around and had a prayer for the Federal death penalty is conducted should not overcome the law. If he these United States of America and the to be unconstitutional. I can tell you wants to go out and write letters and legal system of America. The guard in how it is conducted. argue that the death penalty is unfair the Supreme Court came along and Mr. LEAHY. Mr. President, I would and should be repealed, I guess if he shooed them out and said they could hope that the distinguished Senator, can do that consistent with his ethical not be praying in the Supreme Court. my good friend from Alabama, would standards, that is all right. He cer- So this is the kind of example of state Judge Sessions’ ruling accu- tainly can make reasoned remarks on overreaching that we hear about in our rately. Judge Sessions has stated he it. I do not think he should use the schools, in our public affairs, on our feels the death penalty is constitu- power of his bench to strike it down. courthouse squares, and even in the tional. He has a matter that has been There are many more examples of re- opinions of Federal judges. We can do very thoroughly ruled on in a par- cent rulings with which most Ameri- better. ticular case and the way it was handled cans would not agree. Take for example We need to appoint judges who are in that particular case and did it in a a recent ruling concerning the Ohio committed to following the law. way so that the courts of appeals can State motto, ‘‘With God all things are Miguel Estrada is that kind of person. rule on it, not the least of which has possible.’’ The Sixth Circuit recently That is the only thing he stands for. been done by a number of other judges. told Ohio its motto was unconstitu- That is the only thing in his record he In fact, among those judges who would tional. What about ours, ‘‘In God We is known for; that he believes we ought rule on it, several were appointed by Trust’’? not to abuse the system; that judges President Reagan and by former Presi- It would take a Philadelphia lawyer ought to show restraint. That is what dent Bush and the current President to distinguish why ‘‘In God We Trust’’ he will do if confirmed. That is why the Bush. is OK and the Ohio motto ‘‘With God American Bar Association unani- I am sure if the Senator suggests all things are possible,’’ is not. The mously gave him the highest rating there might be something political in Sixth Circuit told Ohio its motto was they give, which is received by only a this, it is being set up in such a way unconstitutional because it established very few nominees. That is why Presi- that still the ultimate decision would a religion, and that is really weird. dent Bush has asked the American peo- be decided by a majority of judges ap- There are many cases around the ple to allow him to do what he ran for pointed by Republican Presidents. country where you cannot have Christ- office to do. He said this is what we are Mr. SESSIONS. I think we should be mas decorations put up. We have death going to do. This is how I look at the correct. As I understand his ruling, it penalty laws being struck down. We courts and that is what we are going to was not that the act was unconstitu- have three-strikes-and-you’re-out laws try to do. tional, Senator LEAHY is correct, and I being struck down. If they violate the I do not see why anybody should be do not think I said that, but the way it Constitution, that is all right; they afraid of a judge who follows the law. was carried out raised constitutional should be stricken. If someone passes a What we should be afraid of is judges implications. death penalty law in a fashion that is who believe they have a right to rein- I will note, having been a Federal violative of the U.S. Constitution, a terpret the law and impose their own prosecutor myself for 15 years, I know Federal court—or a State court, for views on all the rest of us. Janet Reno personally set up a com- that matter—should strike it down on I yield the floor. mittee to approve any death penalty the spot. If a three-strikes-and-you’re- The PRESIDING OFFICER. The Sen- case in Federal court, and that com- out law is unconstitutional, it ought to ator from Vermont. mittee was charged with the responsi- be stricken. But so far as I have been Mr. LEAHY. Mr. President, what is bility of making sure it was fairly and able to ascertain, States are empow- the parliamentary situation? objectively administered. ered to set penalties for crimes in their The PRESIDING OFFICER. The She made the final decision on it. I States. They can enhance penalties for pending question is the nomination of know she opposed the death penalty multiple offenses, and judges can give Miguel Estrada. herself personally. So I do not believe enhanced penalties for multiple of- Mr. LEAHY. I am sorry. I thought the Federal justice system of handling fenses. when I came we were having a debate the death penalty is unfair. In my view, there is no law, no basis, on the Ninth Circuit, which I under- Going further than that, in July of for us declaring that these acts are un- stand has now put the Pledge of Alle- last year, Judge Jed Rakoff of the Fed- constitutional. giance case on the fast track to the eral District Court in Manhattan ruled The point of all of that is to say: This U.S. Supreme Court, which has a ma- more broadly that the Federal Death is what activism is. This is what Presi- jority of conservative Republicans. I Penalty Act was unconstitutional, say- dent Bush has said in his campaign he am sure the distinguished Senator ing the death penalty is: does not want. He is not asking the from Alabama will be very happy with Tantamount to a foreseeable state-spon- judges he nominates to carry out his whatever way they rule on that. sored murder of innocent human beings. agenda politically. He is prepared to In the meantime, I say to those in Mr. LEAHY. Mr. President, will the fight it out in this Congress and with my State of Vermont who ask, there Senator yield briefly for a question? the American people. He does not want has been no challenge to the law in Mr. SESSIONS. I will be pleased to those judges conducting and carrying Vermont. We are not within the Ninth yield. out their political agendas through the Circuit, and I expect children in Mr. LEAHY. In that case, when that interpretation, misinterpretation, or Vermont will continue to say the went on appeal to the same court that the reinterpretation of the meanings of pledge as we have been saying it since will be hearing the Sessions case, they words and statutes in our Constitution. sometime in the 1950s, I believe, when overruled the judge the Senator re- It is a very big deal. the words ‘‘under God’’ were added to ferred to; is that not correct? I hope the Supreme Court will take it. Mr. SESSIONS. They absolutely did. seriously its responsibility to guide us I suggest the absence of a quorum. That was my next point I was going to out of this thicket it has gotten us in The PRESIDING OFFICER. The make. with regard to its confused and incon- clerk will call the roll.

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.054 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3013 The assistant legislative clerk pro- Virginia, Mr. BYRD, who pointed out Senator BYRD mentioned this last ceeded to call the roll. with characteristic clarity and elo- week, and then Deputy Secretary Mr. LEAHY. Mr. President, I ask quence the President’s failure to re- Wolfowitz told Congress the same unanimous consent that the order for quest a single dime in his fiscal year thing. the quorum call be rescinded. 2004 budget, which he sent to Congress No one can predict with certainty The PRESIDING OFFICER. Without recently, to finance a war with Iraq. It how long a war will last or precisely objection, it is so ordered. is almost as if the White House believes what it will cost, not to mention the Mr. LEAHY. Mr. President, we have we can fight a war and somehow sprin- potentially immense cost of caring for spent a lot of time talking about the kle fairy dust and the money will just an estimated 2 million refugees and of Pledge of Allegiance, which is impor- miraculously appear to pay for it. rebuilding Iraq. tant to the American people, and about As I listened to the Senator’s re- But to say we do not have any idea, the Estrada nomination, something marks, I could not help but be struck that is maybe convenient, but it is to- that could be settled very quickly if again about the cavalier and dismissive tally unacceptable. the White House wanted to settle the way the administration has dealt not matter. They have made it very clear The American people should not be only with our allies and friends on the asked to send their sons and daughters that they do not. In fact, they have issue of disarming Iraq but also with even gone so far as to publicly reject into battle without an even rudi- the Congress and the American people. mentary understanding of what the po- calls from a distinguished Republican, Essentially their attitude has been: We a Senator in this body, to do so. That tential costs are, both in dollars and do not need you. We do not have to tell American lives. None of us expect the has been in keeping with the attitude you, but you better support us. we have seen more and more on such Pentagon to calculate these costs with We have seen administration officials precision, but there is no doubt that a judicial matters by the White House. globe trotting, in some cases offering They take the attitude that the Senate war, and its aftermath, would cost tens billions of dollars and even trade con- if not hundreds of billions of dollars, as is irrelevant, that we should simply do cessions to the disadvantage of Amer- whatever they say—and sometimes do. the President’s former economic ad- ican workers, to other governments, in viser predicted. The Senate majority replaced their support of a war against Iraq. They majority leader at the request of the If we are going to commit American will not ask Congress for a dime to pay taxpayers to a war costing hundreds of White House, something unprece- for the war, but they are running dented. And now they seem willing to billions of dollars, let us say so. If we around the world offering billions of are going to promise American tax- also take the attitude that if they con- dollars to other countries so they will firm someone, just do it without even payers that there will be first respond- support us. ers to protect them in their local com- asking questions about the person. When I see the billions of dollars The fact is, we would probably have munities, let us also be honest and say being promised to Turkey and every- this debate over now if they brought that we provided the money. where else, I ask: What about the first forward the writings of Mr. Estrada, In fact, the cost of a war, at least one responders at home on the front line, which he said under oath he was per- in which Saddam Hussein’s army is protecting our security? They have fectly willing to bring forward. If it quickly defeated as the administration been promised money. The President weren’t for that, we would have had the optimistically predicts, has been esti- gave a good speech in New York City hearings and be finished by now. mated by the administration. So what about how the first responders will be As I go around the country, my own was to prevent the President from at prepared to respond to terrorism, and State or other parts of the country, I least requesting the best-case scenario, that U.S. Government will be there to have not had an awful lot of people somewhere between $60 billion and $95 support them. But it is the old ‘‘the come to me and say: Thank God the billion at last count, in his fiscal year check is in the mail.’’ Senate is debating one judge. 2004 budget? Since President Bush took office we I look at my own State of Vermont. Like the State of the distinguished I think there is only one explanation. have confirmed 105 or 106 or 107 of his The President does not want to ask the judges anyway. We are going to spend Presiding Officer, it borders Canada. We have unique problems because there American people whether—in the midst weeks debating that. of a recession with no end in sight, What I hear from people is: Why is we have an international border. We with millions of jobs already lost, more there not any discussion about a pos- need to do a lot more to protect our jobs lost during this President’s term sible war against Iraq? The British borders and to respond, but we do not than that of any other President in my Parliament has had a major debate on have the money to do it. lifetime, and more Americans becom- it. The Turkish Parliament had a I say to the distinguished Presiding ing unemployed every week—he did not major debate on it. The Canadian Par- Officer, if there is a terrorist attack, want to ask the American people liament had a major debate on it. God forbid, against a nuclear power Country after country is debating this plant on the border between Vermont whether we can afford to spend tens or issue. and New Hampshire, the first calls, the hundreds of billions of dollars on a war What is the Senate, the most delib- first 9–1–1 calls will not go to the Office that fully half the American people do erative body in the world, the body of Homeland Security. They will go to not support. that considers itself the leading par- the local sheriffs and the local fire de- We did this during Vietnam. Nobody liamentary body in the world, what partments and the local hospitals. But wanted to say what it cost because have we done? we are not giving them the money that they knew what the reaction would be. The impression of the American peo- was promised. I want to see Saddam Hussein dis- ple is, both Republicans and Demo- The President acknowledged when he armed as much as anyone. His despotic crats, is that the Senate does not want signed the huge omnibus appropria- reign and his obsession with acquiring to discuss a war with Iraq. I guarantee tions bill—a bill, incidentally, that was weapons of mass destruction while his that if any one of 100 Senators go scrubbed carefully all its way through people suffer has been disastrous for home—go into any restaurant, any by the White House, that it did not in- his country and for Iraq’s neighbors. diner, any gas station, any grocery clude sufficient funds for local and But, if we look back over the past store in their own State, they will find State governments to protect their several months, this administration’s that most people are asking each other citizens against terrorism. That is handling of the Iraq issue has been no- if we are going to war or we are not something Senator BYRD and I and oth- table for its secrecy, its doublespeak, going to war. They are not discussing ers had been saying for months. There and its arrogance. One day they are whether instead of 105 judges having is not enough money in there. I guess dismissing the United Nations as irrel- been confirmed so far for President the White House thought no one would evant. The next day they are making Bush, it will be 106 judges. That is not read it. either threats or billion-dollar deals what they are concerned about. Secretary Rumsfeld was asked what with allies or members of the Security On February 26, we listened to the is the cost of a war against Iraq? His Council to win their support for a reso- distinguished senior Senator from West response was that it is ‘‘unknowable.’’ lution authorizing the use of force.

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.057 S03PT1 S3014 CONGRESSIONAL RECORD — SENATE March 3, 2003 Depending upon who the messenger with his fellow marines. The war ended to be sure that if war comes, it is sup- is, or whether they are speaking pub- very quickly. He was not in harm’s ported by the broadest possible coali- licly or behind closed doors, the Presi- way, unlike others who were. tion. dent first said the goal was regime I am proud of him for volunteering to So I commend the senior Senator change, then disarmament, and now go. I am proud of all America’s men from West Virginia for his remarks last both, but that one cannot occur with- and women who will answer the Com- week, and for the other statements he out the other. mander in Chief’s call to go. But I be- has made on this issue. He has asked The President has told the American lieve we ought at least know what we the questions that need to be asked. I people he has not yet made a decision are asking them to do and why. hope the administration, finally, will to attack Iraq, but his advisers are Let us hope the war is over in a mat- give the answers before the country telling the rest of the world that the ter of weeks. Let us hope the Iraqi goes to war, and not after. decision has been made, and the Secu- Army does crumble like a house of Mr. President, I yield the floor. rity Council of the United Nations cards. Let us hope Saddam Hussein The PRESIDING OFFICER. The Sen- doesn’t matter because we are going does not blow up his oil wells and refin- ator from Texas. ahead, no matter what. This is the ad- eries. Let us hope he does not use his TEXAS INDEPENDENCE DAY ministration’s attitude, even while chemical or biological weapons. Let us Mrs. HUTCHISON. Mr. President, some of our closest allies work to ex- hope our troops do not become bogged March 2 is Texas Independence Day. plore alternative options that could down in hand-to-hand urban combat, Every year I have been in the Senate, avoid war. and that there will be few Iraqi civil- I have carried on the tradition, started The administration’s rhetoric and ac- ians killed. Let us hope that pre- by Senator John Tower, of reading on tions have damaged key alliances and dictions of massive unrest throughout or about March 2—Texas Independence weakened our ability to work with al- the Muslim world in protest at the U.S. Day—William Barret Travis’s letter lies and friends, not only to disarm invasion of Iraq, and increases in the from the Alamo. Iraq but to solve many other global number of terrorist attacks against I just want to give a little back- problems. They have recklessly squan- Americans, will be proven groundless. ground because, of course, Texas is the dered the reservoir of good will our Na- Let us hope the ethnic and religious only State that came into our Nation tion had around the world in the after- factions within Iraq, some of which as a nation. Texas was a republic for 10 math of September 11. Never in genera- hate each other, will put aside their years, having fought very hard for its tions has the world been as united be- differences and join together to build independence from Mexico. hind the United States as it was after the representative, democratic govern- In fact, William Barret Travis’s let- September 11. In only one year, we ment the President has promised. And ter was dated February 24, 1836. His let- have squandered that support. let us hope the President’s grand vi- ter was an appeal for support because How are we going to pay for this war? sion, about which we have been given he only had 184 men in the Alamo, in Apparently not by requesting the funds no details, to make the entire Middle the garrison, and, of course, he was in the budget. They have not done East democratic, will be off to a suc- vastly outnumbered by the Mexican that. Again, as Senator BYRD pointed cessful start. Let us hope so. Army. So he was asking for help. He out, the amount of money requested in But let us also understand it is pos- was pleading for help. the budget, to plan and carry out a sible that any one of these dire pre- All of this was happening around the war, and for its aftermath, is zero. dictions could come true and any one time that the duly elected members of It is reminiscent of Afghanistan, the of them could be disastrous for our sol- the Declaration of Independence Con- country the President said he is com- diers, for innocent civilians, for the gress were coming to Washington-on- mitted to for as long as it take to keep U.S. economy, for our national inter- the-Brazos to sign the Texas Declara- it from again becoming a haven for ter- ests abroad, for the Middle East, for tion of Independence from Mexico. rorists. The amount of money re- the world, and for the fight against ter- It was a trying time between Feb- quested by the administration last rorism. ruary and April of 1836 for these Texans year was zero. It is like promising the Wars are unpredictable. The real who were trying to gain their inde- money for first responders in Texas or costs of a war against Iraq may not be pendence and who eventually became a Vermont or New Hampshire or any- known until long after this President’s part of America. where else, and then leaving it out of term is over. It was at the Alamo, in San Antonio, Who knew, back in 1991, that thou- the budget. TX—Tejas at the time—that 184 Texas sands of gulf war veterans would suffer So how will they do? By paying for it rebels, led by William Barret Travis, from unexplained, debilitating medical with red ink, cranking up the printing made their stand against Santa Anna’s problems years after the war ended and presses and adding to the deficit. This vastly superior Mexican Army. that many would never be able to work President inherited the largest surplus These Texas patriots did not even again? Who can say this war will not be of any President in history. He is now have uniforms. They barely had arms. the spark that ignites more terrorism building up the largest deficit of any In fact, they only had about $1,000 to against the United States—perhaps not President in history: Another hundred fund this entire army. So they did not this year or even next year, but in 3 billion, what is the difference? That is waste any money on uniforms. They years or 4 years? By that time, it will the way they talk. needed arms, and that is where they Yet these are the same people who be too late. spent their money. were giving great speeches just a few We have to think about these things On the second day of the siege, Feb- years ago about why we need a con- even if the President would rather not ruary 24, 1836, Travis called for rein- stitutional amendment to balance the talk about them. We have a duty to forcements with this heroic message: budget. They ought to be darned glad ask what are the administration’s real they didn’t get what they wished for. motivations for this war. Is it to get Fellow citizens and compatriots: I am be- sieged by a thousand or more of the Mexi- So, a balanced budget doesn’t make rid of weapons of mass destruction cans under Santa Anna—I have sustained a any difference, the deficit doesn’t from Iraq? If so, why not give the U.N. continual bombardment and cannonade for make any difference, and don’t look be- inspectors the time they need and a 24 hours and have not lost a man—the enemy hind the curtain because we are not plan for enforcing disarmament? Is it has demanded a surrender at discretion, oth- going to tell you how much it is going to promote democracy in Iraq? If so, erwise, the garrison are to be put to the to. Let us hope the President’s advisers then why not begin with Kuwait, which sword, if the fort is taken—I have answered are right and the war is over in a mat- we liberated a decade ago but which the demands with a cannon shot, and our ter of weeks. Sometimes wars do end even today remains a monarchy, where flag still waves proudly from the wall—I shall never surrender or retreat. quickly. women still are not allowed to vote? Then, I call on you in the name of liberty, I remember my son, a young marine, We have a duty to ask these ques- of patriotism and of everything dear to the was called up in Desert Storm. Like his tions, and to warn the American people American character, to come to our aid, with fellow marines, this young lance cor- of the risks, even if the President will all dispatch. The enemy is receiving rein- poral answered, ‘‘Aye, aye,’’ and set off not. And we must do everything we can forcements daily and will no doubt increase

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.059 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3015 to three or four thousand in four or five interest in the particular day. I salute next year, it was $28 billion; in other days. If this call is neglected, I am deter- her for her comments on the floor. words, a 400-percent increase in 1 year’s mined to sustain myself as long as possible FRAUD AND MANIPULATION IN THE WESTERN time of the cost of energy. The fol- and die like a soldier who never forgets what ENERGY MARKET lowing year, it was $27 billion. is due to his own honor and that of his coun- try—Victory or Death. Mr. President, I want to take a few I remember when John Bryson, the WILLIAM BARRET TRAVIS, minutes, if I may, to make some infor- CEO of Southern California Edison, Lt. Col., Commander. mal comments on something that has told me that when they were forced to This went out on February 24, 1836. happened today. Today was the dead- divest themselves of their plants, the Those 184 brave men held the Alamo, line for California to submit to the energy generator that came in and with no reinforcements, until March Federal Energy Regulatory Commis- bought one of their plants, to which the 6th of 1836. They held all that time sion the evidence of fraud and manipu- they were one day selling energy at $30 against exactly what William Barret lation in the western energy market a megawatt-hour, once it went to the Travis thought would happen. Thou- after a 100-day discovery period. other generator, the other generator sands of Mexicans in the army were In fact, about 1,000 pages of evidence charged $300 a megawatt-hour. When I gathering steam to attack the Alamo. were submitted to the Commission. heard that, I knew it was a real danger He never got reinforcements. The problem is that evidence is not re- signal that something had really gone The Alamo fell on March 6. Just four leased to the public. This is a real prob- wrong. Well, we are a long way down days earlier, the men who were elected lem. the pike since then. I serve on the Energy Committee, to the convention signed the Texas I ask unanimous consent to print in and have served there since the crisis Declaration of Independence. My great- the RECORD a letter I wrote this morn- in 2000 and 2001 in California. The En- great-grandfather was one of those, ing to the chairman of FERC, Pat ergy Committee provides oversight to elected from Nacogdoches County. He Wood, in which I followed up on an ear- the Federal Energy Regulatory Com- was alcalde of Nacogdoches County at lier letter of February 6, to which I mission. The Federal Power Act man- the time. He went, along with Thomas have not had a response, asking the dates that the FERC must ensure that Rusk, the first man to hold the seat FERC to lift the protective order that rates for power are just and reasonable that I now hold in the Senate, to Wash- currently prevents the public from throughout the United States. ington-on-the-Brazos, and they both learning about evidence of fraud and signed the Texas Declaration of Inde- It is very difficult to know whether the Federal Energy Regulatory Com- manipulation in the western energy pendence. marketplace. I point out that now that It was during that time that women mission is in fact ensuring that rates are just and reasonable if one can never the 100-day discovery period has ended, and children in the Nacogdoches area ‘‘I write to reiterate this request and were being besieged by Indians, and view the evidence. I happen to believe that the FERC ask the commission to make all evi- they were concerned that the Mexican dence public.’’ Army might also be coming there. So has greatly improved. Patrick Wood, There being no objection, the mate- they fled in what is called the Run- Bill Massey, Nora Brownell have been rial was ordered to be printed in the away Scrape toward Louisiana. All very strong in making change. That RECORD, as follows: four of my great-great-grandfather’s change is welcomed. It was on May 6 of children died in the Runaway Scrape. last year that the major change began. U.S. SENATE, Washington, DC, March 3, 2003. All four of his living children died. And It was then that the FERC ran on its Hon. PAT WOOD, yet those brave settlers went back to Web site internal memos detailing some of the schemes Enron used in de- Chairman, Federal Energy Regulatory Commis- Nacogdoches and raised nine more chil- sion, Washington, DC. dren. So they were the kind of stock frauding the marketplace. Get Shorty, Ricochet, Death Star, all became DEAR MR. CHAIRMAN: I am writing to follow that settled our State and our country. up on my letter of February 6, 2003 to ask the It was April 21 that Santa Anna fi- known to the general public directly Federal Energy Regulatory Commission nally was defeated at the battle of San following the posting of these memos. (FERC) to immediately lift the ‘‘Protective Jacinto, led by Gen. Sam Houston, who Since that time, several people have Order’’ that currently prevents the public was the commander there. So the time been indicted and pled guilty to fraud. from learning about evidence of fraud and period between February and April 21 Additionally, more recently, one manipulation in the Western Energy Market. was key in the Texas independence and company, Reliant, was before the Com- Now that this 100-day discovery period has ended, I am writing to reiterate my request the beginning of the new republic. mission. The Commission put on their Web site the transcript of tape record- and to ask the Commission to make all evi- Texas was a republic, an independent dence public—even information FERC has nation, for 10 years before they joined ings between Reliant managers. Those obtained itself. transcripts indicated instances where the United States as a State in the I would also appreciate the opportunity to United States. Reliant’s plant manager and operations review the filing submitted today by Cali- So I always try to remember the manager talked about holding power fornia parties detailing new evidence of brave people. Obviously, in my family offline in California to drive prices up. fraud and manipulation in the Western En- we have a lot of stories and a lot of lore The operations manager—and this is ergy Market. As a member of the Senate En- about that time because my mother not a direct quote, it is a paraphrase— ergy Committee and the senior Senator from grew up in Nacogdoches, and it is the said, in so many words: We are going to California. I believe I have a duty and re- be manipulating the market tomorrow. sponsibility to have a full working knowl- oldest town in Texas, and it is one that edge of the evidence submitted to FERC. is rich in our Texas history and is very So we are going to close down one I also believe that the evidence collected much a part of my family and so many plant at least for a day and perhaps more. by FERC should not remain confidential. of the generations who came before us Since most of the information is over two to settle our great State. And the plant manager said: Oh, yes. years old, it no longer has any proprietary So I am going to continue the tradi- Well, that was sort of a dead bang ad- value. The widespread nature of abuse of the tion as long as I am in the Senate be- mission of market manipulation. Western Energy Markets and its resulting cause I think it is worthy of note that FERC, much to their credit, at the economic damage on families and businesses we had our own fight for independence very least, fined Reliant $13.8 million. require the Commission to allow the public and that we have such a unique char- But they could have sent a much to immediately review all evidence obtained acter in our State. stronger message to the entire energy by FERC. Mr. President, I yield the floor. sector by withdrawing Reliant’s ability As I stated in my letter last month, I also The PRESIDING OFFICER. The Sen- to sell power at market-based rates. believe FERC must carefully review all the ator from California. That would have sent a clear and defin- evidence presented by the California parties Mrs. FEINSTEIN. Mr. President, I and hold hearings if necessary. How can the itive message, yet instead FERC gave Commission attempt to remedy the harm thank the distinguished Senator from Reliant a slap on the wrist. done to families and businesses during the Texas for her remarks. I think, indeed, In California, we have a real problem. energy crisis if FERC cannot determine the they were very interesting. I had no One year, the entire cost of energy for extent of abuse in the Western market and idea about her family lineage and her the entire State was $7 billion. The its effect on energy prices and supplies?

VerDate Jan 31 2003 02:43 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.062 S03PT1 S3016 CONGRESSIONAL RECORD — SENATE March 3, 2003 Thank you for your consideration of this tion of the House had sat down and met Then, several weeks ago, in a markup request and your continued attention to en- with Mr. Estrada for an hour and a in committee, I think another aspect of ergy problems on the West Coast. half. They sent out alerts that they did this situation that perhaps was caused Sincerely yours, not believe this was a nominee who by the strain and the raw nerve endings DIANNE FEINSTEIN. really represented the concerns of His- in the Senate came upon the scene. Mrs. FEINSTEIN. I also indicate that panic citizens. That in itself is not dis- The Judiciary Committee rules con- as the senior Senator from California positive. I am the first one to admit tain a clause providing ‘‘on the request and as a member of the Energy Com- that. of any member, a nomination or a bill mittee, I have a specific obligation to This is a young man. He spent a lot on the agenda of a committee will be render oversight to see that FERC is of time on his education. It is not nec- held over until the next meeting of the doing its job. How can anyone possibly essarily a requirement that someone committee, or for one week, whichever render due diligence and oversight if serve on a number of civic groups. But occurs later.’’ That appears in the rules they don’t know what is being pre- it was a point. of the committee. sented nor have access to what is being Immediately, the Hispanic-American I ask unanimous consent that those presented to the Commission on which community indicated that there was a rules be printed in the RECORD, and I they make their judgments? great and serious split over this nomi- particularly call attention to the rule I I have spoken four times now about nee. That in itself is not, again, dis- have just quoted. Miguel Estrada and the general state of positive. There being no objection, the mate- the nominations process. I regret Then we note that he had never been rial was ordered to be printed in the where these weeks have taken us, a professor. He had never been a judge. RECORD, as follows: frankly. I hope we can come together He has no writings and no speeches. So RULES OF THE COMMITTEE ON THE JUDICIARY to overcome what is increasingly sepa- when one turned to look for the due I. MEETINGS OF THE COMMITTEE rating the two sides of this great body, diligence, there was very little to see. 1. Meetings may be called by the Chairman marring judgments and actions relat- We have none of his work product or as he may deem necessary on 3 days’ notice ing to the Judiciary Committee’s hear- other memos that would give us an or in the alternative with the consent of the ing process and that process through idea of what kind of thinker he is or Ranking Minority Member or pursuant to which we advise and consent on nomi- what kind of judge he would be. And he the provision of Sec. 133(a) of the Legislative nees by the President to Federal judge- refused to answer in the public hearing Reorganization Act of 1946, as amended. 2. Each witness who is to appear before the ships. a number of simple, basic questions In order to understand this filibuster Committee or any Subcommittee shall file that go to the heart of whether he with the Committee, at least 48 hours in ad- over Miguel Estrada, we also have to could be a truly impartial judge and vance of the hearing, a written statement of understand what has led us to this set aside his advocacy. I mentioned on his testimony in as many copies as the point. the floor of the Senate that my office Chairman of the Committee or Sub- I would like to speak specifically to had spoken with Professor Paul Bend- committee prescribes. the nominations debate because this is er, who had been his direct supervisor 3. On the request of any member, a nomi- a key area where the administration in the Solicitor General’s Office. Mr. nation or bill on the agenda of the Com- mittee will be held over until the next meet- has, with few exceptions, acted in Bender told my staff, ‘‘Well, I could not many ways as if the Senate simply ing of the Committee or for one week, which- give him certain assignments because I ever occurs later. doesn’t matter. If this debate were only could not be assured that he was im- II. QUORUMS about whether or not we should vote on partial.’’ Miguel Estrada, that would be enough. 1. Nine members shall constitute a quorum This, again, in itself is not disposi- of the Committee when reporting a bill or Make no mistake about it. tive, but it is a danger signal. nomination; provided that proxies shall not There are serious questions about I talked to individuals who had been be counted in making a quorum. this nominee that we can’t answer interviewed by him in a screening ca- 2. For the purpose of taking sworn testi- without more information, information pacity when he was a clerk for Justice mony, a quorum of the Committee and each that this nominee and the administra- Kennedy, and each I talked to indi- Subcommittee thereof, now or hereafter ap- tion have essentially refused to pro- cated that in fact there was a kind of pointed, shall consist of one Senator. vide. litmus test and that they were told III. PROXIES My colleagues and I have outlined they were too liberal. When a record vote is taken in the Com- these concerns over and over again Again, that is not dispositive. But mittee or any bill, resolution, amendment, over the past few weeks. I have pointed what all this points out is that we or any other question, a quorum being out that the District of Columbia Cir- present, a member who is unable to attend needed—some of us—to find out wheth- the meeting may submit his vote by proxy, cuit is a very critical circuit. Every er this was a man who could put aside in writing or by telephone, or through per- Member of this body knows that and his advocacy, his strong feelings about sonal instructions. A proxy must be specific accepts it. It is a circuit that presides certain issues, and follow the law with with respect to the matters it addresses. over many of the areas of appeal that impartial and wise judgments. IV. BRINGING A MATTER TO A VOTE are of extraordinary concern because I came to the conclusion—and some The Chairman shall entertain a non-debat- they involve laws we have passed in have faulted me for it—after listening able motion to bring a matter before the areas such as worker rights, OSHA, to Jeffrey Sutton, that here was a man Committee to a vote. If there is objection to Superfund, wetlands, all environmental who had strong views and beliefs, but bring the matter to a vote without further concerns, and so on and so forth. It has who was willing to be very fulsome in debate, a rollcall vote of the Committee assumed a particular role, if you will, his answers to the committee, very shall be taken, and debate shall be termi- because of the fact that two of Presi- forthright in his views, and sent a very nated if the motion to bring the matter to a vote without further debate passes with ten dent Clinton’s nominees to this circuit clear signal—at least to me—that he votes in the affirmative, one of which must never had a committee vote—one did would, in fact, separate his personal be cast by the Minority. not even have a hearing—this is a dif- views and the law that he would be V. SUBCOMMITTEES ferent kind of filibuster. So there are a charged and constitutionally pledged 1. Any member of the Committee may sit number of vacancies on this circuit. to uphold. So I voted for him. with any Subcommittee during its hearings And the circuit as it stands is equally There has been substantial dismay or any other meeting, but shall not have the divided, Republicans and Democrats expressed by many of my constituents authority to vote on any matter before the equally divided. Therefore, who breaks in California, and I heard them loud Subcommittee unless he is a member of such this equal division is really important and clear when they picketed virtually Subcommittee. because it will swing the court one way every one of my offices. Nonetheless, I 2. Subcommittees shall be considered de or another. made that judgment after listening in novo whenever there is a change in the Sub- committee chairmanship, and seniority on Into this mix comes a very young a public hearing to questions and an- the particular Subcommittee shall not nec- man, 41 years old. When his nomina- swers and, at least for myself, came to essarily apply. tion came over, it came over with sub- a conclusion. Only history will tell 3. Except for matters retained at the full stantial concerns. The Hispanic delega- whether I am right or wrong. Committee, matters shall be referred to the

VerDate Jan 31 2003 02:43 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\A03MR6.015 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3017 appropriate Subcommittee or Subcommit- the committee to consider an issue, he I certainly understand how any tees by the Chairman, except as agreed by a can simply refuse to add the issue to chairman might be frustrated by some majority vote of the Committee or by the the agenda, or he can pull it off the of us and by perhaps all of us who agreement of the Chairman and the Ranking agenda, if necessary. Many Clinton might attempt to thwart his timetable. Minority Member. nominees suffered this fate, and Mem- But this frustration, again, should not Mrs. FEINSTEIN. Mr. President, this bers have made that clear, I think, be allowed to manifest itself in cir- rule is designed to protect Members time after time in the past couple of cumvention of a clear, defined, and who need more time to examine an weeks. decades-old committee rule. If we allow issue, to discuss it with their col- In any event, this rule has always 1 week to become 6 days, it becomes an leagues, or to prepare amendments. A been interpreted to mean that if a Sen- hour tomorrow, maybe cloture only re- very relevant factor. ator asked for a matter to be held over, quires 20 rather than 60 votes or 40 per- My own office was alerted to the the earliest it would come up again was cent constitute a majority. This is a presence of Mr. Roberts and of Mrs. in 1 week. That week comprises 7 days bit of an exaggeration. Cook on their hearing agenda the day from the meeting at which the rule is As a matter of fact, it is a major ex- before the actual hearing. In other invoked. aggeration, but the Senate and its words, we learned at 4:46 p.m., Tuesday, Now, we have an exchange from 24 committees have rules for a reason, January 28, that the next day they years ago between Senators Thurmond and we really cannot function if we do would be up for hearing along with Mr. and KENNEDY about this rule. I want to not follow them. Sutton. I ask unanimous consent that read from the transcript of that Judici- When this 6-day week concept was that e-mail be printed in the RECORD. ary Committee meeting that occurred verbalized, our ranking member, Sen- There being no objection, the mate- on January 24, 1979. Let me quote from ator LEAHY, made it clear that 6 days rial was ordered to be printed in the Senator Thurmond: is not a week. The minority would RECORD, as follows: There is one other matter. We have a cus- allow the rule to be waived and a TENTATIVE NOMINATIONS WITNESS LIST tom, I guess since the committee was found- markup to occur in 6 days as a matter TENTATIVE AGENDA—SENATE JUDICIARY COM- ed, that any Senator can carry over any mat- of cooperation. And so we waived the MITTEE HEARING ON JUDICIAL NOMINATIONS, ter for 1 week, any nomination for 1 week. I rule, partially to avoid a confrontation assume there is no objection to continuing WEDNESDAY, JANUARY 29, 2003 AT 9:30 A.M., over this interpretation of the long- that. DIRKSEN 226 standing 7-day rule. But although we Panel I Chairman Kennedy: I think that is a rea- sonable request. I think that if it is on a avoided a crisis that week, the 6-day The Honorable Dianne Feinstein, United Tuesday to a Tuesday—why don’t we just concept was sort of a foreshadowing of States Senator (D–CA). have it on a Tuesday to a Tuesday, so it is 7 what now seems to be increasingly a The Honorable Mike DeWine, United days? plan to ignore committee rules and States Senator (R–OH). move forward over the objections of The Honorable John Cornyn, United States Seven days, Mr. President. Now, in Senator (R–TX). my 10 years on the Judiciary Com- the minority, and people feel very The Honorable John Warner, United States mittee, this rule has always been inter- strongly about that. Senator (R–VA). preted to mean 7 days. Any matter held Last week, we saw this plan come to The Honorable Kay Bailey Hutchison, over must be held over for 7 days, or fruition as two nominees were moved United States Senator (R–TX). until the next markup, whichever oc- out of the Judiciary Committee over The Honorable George Voinovich, United curs later. Obviously, there have been the strong objections of members who States Senator (R–OH). many occasions where a chairman of a wished to continue debate, and despite Panel II committee would have preferred to the clear invocation of a decades-old Deborah Cook to be U.S. Court of Appeals schedule another markup immediately rule, protecting the right of the minor- Judge for the Sixth Circuit. to move a nominee or a bill forward. ity to continue to debate until at least John Roberts to be U.S. Court of Appeals one of their own agrees it is time to Judge for the D.C. Circuit. After all, a chairman does not schedule Jeffrey Sutton to be U.S. Court of Appeals a matter for consideration unless he or vote. Judge for the Sixth Circuit. she is ready to move forward. But re- Senator DASCHLE spoke on this issue last week, and I want to expand briefly Panel III gardless of the will of the chairman to on his comments. The judiciary rule in John Adams to be U.S. District Court move more quickly, there has always Judge for the Northern District of Ohio. been a recognition that rules are rules, question contains the following lan- Robert Junell to be U.S. District Court and this one has always been fol- guage: Judge for the Western District of Texas. lowed—until this year. The chairman shall entertain a nondebat- S. James Otero to be U.S. District Court At the Judiciary Committee markup able motion to bring a matter before the Judge for the Central District of California. on Miguel Estrada several weeks ago, committee to a vote. If there is objection to Mrs. FEINSTEIN. Now, for those of bringing the matter to a vote without fur- the chairman of the committee at- ther debate, a rollcall vote of the committee us on this side, that notice—or lack of tempted to interpret the 1-week rule as shall be taken and debate shall be termi- it—presents a very real problem. Now allowing an issue to be held over for nated if the motion to bring the matter to a we knew that Mr. Sutton, Mrs. Cook, just 6 days rather than 7. Essentially, vote without further debate passes, with 10 and Mr. Roberts had been pending for he decided to interpret 1 week as being votes in the affirmative, one of which must some time. But the way things actu- 6 days. be cast by the minority. ally work is that the real due diligence Now, before I go into this further, let What does this rule mean? Over the is done in preparation for the hearing— me say that Senator HATCH is one of last few decades, it has clearly meant it is done when the notice comes out. my dearest friends in the Senate. He is that unless at least one member of the So we truly need time. And I believe a fair chairman. I have watched him minority agrees to cut off debate and the time to study and do our individual for a long time. We have worked to- move straight to a vote, no vote can due diligence on each nominee would gether on many important issues for occur. This is what happened and what ease a lot of the raw nerve endings and the past 10 years. I hold him in the came up last Thursday. scar tissue, which is now very evident very highest regard. Even on the issue This is one of the only protections on this committee. of judicial nominations, I know he did the minority has in our committee. Because it is the chairman who his very best in a very difficult posi- Without it, there could conceivably schedules matters for a vote, it is in- tion over the years, when President never be a debate at all. A chairman evitably members of the minority Clinton was President, to balance the could convene a markup, demand a party who most often need this extra strong will of many of his own caucus vote, and the entire process would take time. As a result, this holdover rule is against his desire to be fair to Presi- 2 minutes. That is one of the reasons a rule that is viewed as a protection of dent Clinton’s judicial nominees, and I we feel so strongly about this par- minority rights in the Judiciary Com- believe that very strongly. ticular rule. We believe this is not how mittee. If anything, this is an indication of the Judiciary Committee should func- After all, a chairman does not need how raw nerve endings really are. That tion, and it is contrary to the rules of to hold over a bill. If he doesn’t want is all at this point in time. the committee.

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\A03MR6.016 S03PT1 S3018 CONGRESSIONAL RECORD — SENATE March 3, 2003 As I understand it, this rule was first want to see this stop. I want to give Mr. LEAHY. I thank the Chair. instituted in 1979, again, and it has the assurance, at least from this Sen- Mrs. FEINSTEIN. I do not take any been followed ever since by all of our ator, that what I want is ample time to pleasure in this. When I became a chairmen. do my due diligence on a given nomi- Member of this body, I ran as an inde- I believe only two committees have nee. pendent voice, and I want to be that something like it—Finance and Judici- Very often letters do not come in way. I want to work with both sides, ary. The reason for it, as I understand until almost the date of hearing. As and I have tried to do that. I think we it, goes back to Senator KENNEDY’s the hearing date grows close, it seems are at a point, though, where some ac- days as chair, when it was determined people begin to know that something is tion has to be taken to restore the con- they didn’t want to be like other com- happening. But if you get the official sideration that has usually been of- mittees, where with Appropriations notice for a hearing the day before— fered to members of this committee, you will often have a committee in the and in this case at 4:46 p.m. the day be- that when they have a problem, a little majority just go off on its own, mark fore—for three appellate court nomi- more time is provided. up something, and everybody is forced nees, it is extraordinarily difficult. I believe very strongly—I have never to accept it. Mr. LEAHY. Mr. President, will the used my blue slip. I have said I would Let me give you an instance. Senator yield for a question? never use my blue slip prior to a hear- During the markup of Bill Lann Lee Mrs. FEINSTEIN. Yes, I will. ing; that I believe everybody is entitled to be Assistant Attorney General for (Mr. SMITH assumed the chair.) to a hearing, and then we should vote the Civil Rights Division, there was Mr. LEAHY. Mr. President, I have the individual up or down, and that is some fear on our side that Republicans listened to the comments of the distin- my view. I do not push my view on any- who had the votes to defeat the nomi- guished Senator from California. I body else, but that is how I decided I nation would move directly to a vote strongly compliment her for what she was going to handle my spot on this and prevent any debate on the issue at has been saying. Is it not a fact, Mr. committee. But if the minority gets the markup. Democrats, on the other President, I ask my friend from Cali- rolled, we go into a defensive posture hand, wanted the chance to explain fornia, that simply because a Senator and everybody is compelled then to their position and maybe even change wishes more time to debate a par- unify and hold together. I think my some minds on the other side. ticular nominee that does not mean colleagues see a lot of this in this fili- During that markup, there was sig- that Senator is going to vote against buster. nificant discussion about what rule IV, the nominee; is that not correct? I am hopeful in the future there can the rule about cutting off debate, real- Mrs. FEINSTEIN. Well, the Senator be a precise time when an official no- ly means. At one point, it is inter- is correct. tice is sent out prior to the hearing esting to note, Chairman Hatch himself Mr. LEAHY. I mean, that might be. being scheduled, so that every member commented that: Mrs. FEINSTEIN. That is correct. of this committee has an opportunity At the appropriate time, I will move to Mr. LEAHY. If the Senator would to do their due diligence. proceed to a vote on the Lee nomination. I yield further for another question, was It is interesting to note that the assume there will be no objection. It seems it not made clear during the markup votes in the committee—and I have to me that he deserves a vote. People deserve that she was speaking about, the exec- to know where we stand on this issue. Then them. On Mrs. Cook, there were 12 we will, pursuant to rule IV, vote on whether utive meeting she was speaking about, yeas, two nays and five present. The to bring the Lee nomination to a vote. In that it was stated at that meeting present, or pass, votes submitted by order to vote on the nomination, we need at there was very clearly an objection to the ranking member, myself, Senators least one Democrat to vote to do so. going forward by at least a couple of FEINGOLD, DURBIN and SCHUMER, were This is precisely what we are dis- Senators, and because of that objection really, I think, on this point, that we cussing, Mr. President. In order to vote rule IV would fall into place, which did not have an ample opportunity to on the nomination, we need at least says debate shall be terminated if the do our due diligence and to ask the one Democrat to do so. motion to bring the matter to a vote questions we needed to ask. Last week, we did not have such a without further debate passes with 10 On Mr. Roberts, there were 13 yeas, vote. No Democrat was prepared to cut votes in the affirmative, one of which two nays and two present, Senator off debate. I know this because it was must be cast by the minority? So rule LEAHY and Senator FEINGOLD, which discussed ahead of time. Even though IV would apply such an objection being probably came from the same venue. In Senator KENNEDY, who has substantial made, unless there were 10 votes to cut other words, they did not feel they had seniority and was chairman at the time off the debate, with one of those votes sufficient information to vote. the rule was put forward in 1979, ob- coming from the minority; is that not So I am hopeful that in the future we jected and informed the chairman that correct? would be able to settle some of these no Democrat was ready to stop debat- Mrs. FEINSTEIN. I say through the issues in the committee and just bend ing, the chairman moved ahead any- Chair to the distinguished ranking over backwards. I remember the day way. member, yes, that is correct. I have the when if a Member had a problem with I had an opportunity to speak to the rule before me, and that is what it a judge who had been recommended to chairman after this hearing, as a mat- says. The Senator is correct that some- the President by a specific Senator, ter of fact, in the garage of the Hart one objected, yes. that Member picked up the phone and Office Building. I think he has a very Mr. LEAHY. I ask my friend from called that Senator and said: I just good understanding of the sensitivities California, and I say this because she want you to know, I have these con- and the nerve endings that are has laid out this debate so well and the cerns, and there was this kind of con- scratched raw right at this present history of it so well, in this case was it vivial relationship. That is all but gone time. It is my hope the chairman will not a fact there were not 10 votes, with now. take steps so we can restore to the one of those 10 votes being the minor- So the process is extraordinarily for- committee the consideration that has ity, to cut off debate? mal now, and the formality is carried always been extended. Mrs. FEINSTEIN. Through the Chair out, for the most part, in the public Let me say something about Chair- to the ranking member, yes, that is hearing. So having notice to that pub- man HATCH. I understand how things correct. lic hearing becomes really all impor- can get to one in this committee, and Mr. LEAHY. Mr. President, I ask tant. I understand on both sides how—and again, through the Chair, to my friend I have pretty much summed up my the Chair is smiling—how we can be ex- from California, is it not a fact that position and my hope on this. I see the traordinarily difficult to preside over. I the chairman then, notwithstanding distinguished Senator from Alabama would never make an adverse personal the fact that there has not been a prop- on his feet so I yield the floor. comment about this chairman because er vote to cut off debate, went ahead Mr. SESSIONS. Mr. President, I I respect him, I like him, he is a friend, and held the vote just the same? wanted the Senator to finish, so I we work together. I just want to see Mrs. FEINSTEIN. Through the Chair thank the Chair. Graceful in her re- the two sides come together, and I to the ranking member, that is correct. marks, I think nerves are frayed, and

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.069 S03PT1 March 3, 2003 CONGRESSIONAL RECORD — SENATE S3019 perhaps the senior Senator from Cali- that did not occur when President Clin- We have an unprecedented filibuster. fornia can play a role in bringing some ton was President. This is what has Senator HATCH concluded that we were things back. caused the problem. facing a filibuster in committee. Now The Senator talked about I note these nominees. An absolutely we have a filibuster of Estrada on the collegiality, and some of us were very superb nominee, Justice Cook, served floor. The ground rules have changed. disappointed that Strom Thurmond’s on the Supreme Court of Ohio. As Sen- We are going to put the burden of proof chief judiciary counsel was virtually ator HATCH has noted so often, Roberts on the nominee. It was one of the views blocked last year. We finally got it is considered one of the top two appel- that Senator SCHUMER has put forward. through at the very last minute. So a late lawyers in America, an absolute We consider whatever the politics are, lot of things have happened. There superb candidate, with 39 arguments which was never done before, racheting clearly was a change in the ground before the Supreme Court. up the pressure on the nominee and rules after Members on the other side They were denied for over a year, al- then we cannot get a vote in com- asserted that Senator HATCH did not most 2 years, even a hearing when the mittee. Then we cannot get the vote move nominees fast enough for Presi- Democrats controlled the committee. because every Democrat has to sign off. dent Clinton and that, of course, we That is galling. Miguel Estrada was Senator HATCH examined the rules, should not filibuster and those sort of given a hearing a year and a half after- met with the Parliamentarian. I have things. Then after the election, the wards, the only one actually given a not studied the rules. He met with the ground rules changed and the obstruc- hearing. But he was not moved forward Parliamentarian and he concluded he tion of nominees President Bush has out of committee. had the authority to make the ruling sent forward has reached a much high- This is an odd thing to have a con- that he made. I don’t think he wanted er level. I think no one can doubt that. cern about frayed nerves when the to do that. I think he would like to So we are frustrated also. I do believe ground rules were changed. After Presi- have proceeded as he had before with we should have more collegiality in the dent Bush was elected, three professors collegiality and allowing everyone to committee, and I believe we can do bet- went to the Democratic senatorial con- have their say as long as they wanted. ter. ference: Lawrence Tribe, Cas Sunstein, But when you are faced with a system- One thing I would ask the Senator, and Marsha Greenburger. They were atic alteration of the ground rules, a without yielding the floor, I would sug- quoted in the New York Times as say- systematic plan to obstruct a move- gest that on the Cook and Roberts ing: We want to change the ground ment of nominees of extraordinary matters, the Senator did indicate they rules. Obviously, one of them is that ability for years, who ought to be con- had been pending virtually 2 years, they did not conduct hearings. Some firmed, and the courts need them, we well over a year and a half. No hearings superb nominees never even had hear- are at a point where nerves are frayed. had been held on them, but there had ings. If the rules are going to be used on been 2 weeks before this markup, or Also not mentioned at the time be- one side, rules are going to be used on the hearing—2 weeks before they had cause the Democrats had the majority, the other side. The President of the been noticed, so we put it off another 2 was the filibuster. This is the first United States is not going to believe he weeks. Perhaps the exact time of the time, insofar as I know, in the history can give up his right to nominate hearing or the exact nature of what the of this country we have had a filibuster judges and expect them to have a con- hearing was going to be may not have for a district judge or circuit judge. It firmation. It was indicated President been given to the Senator, but I believe is not as if Mr. Estrada had any serious Bush maybe was not solicitous enough. after the first request the Senator problems. There is no ethical problem But in California I have heard com- made for a delay, 2 weeks did transpire. with this wonderful nominee. He was plaints because he has agreed to go I think that would have given people rated unanimously well qualified by along with a commission in California time to be prepared. the American Bar Association. He was of some sort that gives unprecedented Mrs. FEINSTEIN. May I respond to at the top of his class. input from Senators from California that? Regarding his experience, he clerked and others on the nominees. I don’t Mr. SESSIONS. I yield for a question for a Second Circuit judge. The posi- know how that works, but it is pretty or a comment. tion he would hold, if confirmed, is a unusual. He also reappointed two Mrs. FEINSTEIN. Through the Chair, sister circuit, the DC Circuit Court of Democratic nominees, Barrington to answer the distinguished Senator Appeals. DC does handle some national Parker and Gregory, who had been from Alabama, I asked my counsels issues and issues with which the Jus- pending and were not confirmed. when did they first know, and they tice Department deals. He served in the I am not sure President Clinton ever said, well, informally there was discus- Justice Department’s Solicitor Gen- nominated any Republican judges when sion, but the notice—and I said, well, eral’s Office. In that position he pre- he took over. get me a copy of the notice then. I pared briefs and made arguments be- I believe we are in an unfortunate pe- want to see the notice. And it was 4:58 fore the courts—often, I am sure, be- riod, that there is a lot of frustration. the day before. fore the DC Circuit Court of Appeals. It is pretty deep on our side. I don’t That is the problem. I do not know So he has an intimate connection with think the Senator would doubt one mo- exactly how all the counsels work, but that. ment that the tactics utilized by the I can tell the Senator that on our side Under Rudy Guiliani, he worked in Democratic minority are different than time is important. Giving a little bit of the U.S. Attorney’s Office of New York, the tactics utilized when the Repub- time, I think, could go a very long way considered one of the most prestigious licans were in that position. to solving the problem we are in, offi- offices—at least those in the Southern Where do we go from here? I don’t cially. so there are no excuses then. District of New York think it is the know. But it is a big deal. The official notice goes out. Who is on finest. It is competitive. He handled The PRESIDING OFFICER. The Sen- the calendar occurs a substantial pe- appellate work for them. To the extent ator from California. riod before the hearing so we have time to which this nominee has experience Mr. SESSIONS. I yield for a question. to do what we need to do, particularly with appellate work, it is extraor- Mrs. FEINSTEIN. I wanted to make when I think there were seven judges dinary. one point, so I will defer. on this particular calendar, three of I believe there is no justifiable basis Mr. SESSIONS. Let me mention a them appellate judges, meaning it is a for blocking his nomination. I know a couple of items. very big and heavy calendar on which Senator earlier expressed concern that It was suggested one of the Depart- to do your work. we were somehow blocking an ability ment of Justice members, Paul Bender, Mr. SESSIONS. I appreciate the com- to take up other matters before the raised some question about Miguel ments of the Senator from California. Senate. I would love to move forward. Estrada’s nomination, but Bender and Hopefully, we can do something better. The way we move forward is to give the other supervisors in the Clinton This side does not intend to be vic- Estrada a vote. We are not asking that Department of Justice—remember, he timized by a racheting up, substan- people vote for him. We are just asking went into the Solicitor General’s Office tially, of the process of confirmation he be given a vote. in 1992; surely within a year or so he

VerDate Jan 31 2003 01:28 Mar 04, 2003 Jkt 019060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G03MR6.072 S03PT1 S3020 CONGRESSIONAL RECORD — SENATE March 3, 2003 should have been under the supervision of Energy/Federal Energy Administra- action of quickly moving the nomina- of the Democrats at that time. It prob- tion. From 1979 to 1981, Judge Horn tion of Larry Block to the Court of ably takes some time to make the served as the deputy assistant general Federal Claims at the request of the change over. Almost his entire career counsel for Financial Incentives, Office ranking Republican, Senator HATCH. At in the Justice Department was under of General Counsel, where she super- that time, I noted that we would ex- the leadership of Janet Reno and a vised all legal work related to financial pect fairness and consideration in re- Democratic Solicitor General. The incentives at the United States Depart- turn, including true bipartisan con- Democrats gave him the highest pos- ment of Energy. In addition, she served sultation with respect to Federal Court sible performance rating. as legal advisor to the assistant secre- of Claims nominations. Despite our ac- Mr. Bender, when he was evaluating taries for Fossil Energy and Resource commodation on Mr. Block’s nomina- him, gave him the highest evaluations. Applications, as well as the Office of tion, the White House refused to act on I think it odd now that he would come Energy Research. the nomination of Judge Sarah Wilson forward and suggest there was a prob- From 1981 to 1986, she worked in the who, up until a few months ago, was al- lem. In fact, one of the evaluations United States Department of Interior, ready serving with distinction on the given to him specifically noted his loy- where she assisted the Associate Solic- Court of Federal Claims. Judge Wilson alty to the policies of the Department itor and helped administer the Surface is a well-respected and talented lawyer of Justice. Mining Control and Reclamation Act of who graduated from Columbia Law It was also said there was some deal 1977. In 1985, Judge Horn was promoted School, clerked for a Federal judge, about law clerks and screening law to principal deputy solicitor, where she was a fellow with the Administrative clerks for Supreme Court Justice Ken- supervised all the Regional and Field Office of the Courts, and served in the nedy. Let me point out I think it is a Offices of the Solicitor’s Office in the Department of Justice and in a prior great honor that Justice Kennedy was Department and acted as the chief law- White House. Yet, the administration so impressed with Miguel Estrada that yer to the Secretary and Under Sec- and the Senate Republicans refused to he asked him to do screening of pos- retary of Department of Interior. So accommodate our request to consider sible law clerks for him. Justice Ken- you see that Judge Horn already had a her nomination for a continued posi- nedy is considered a middle of the road very impressive resume in 1986, when tion on the court. swing Justice who votes with various she was first confirmed. It troubles me that despite a long sides, on various sides, and is not per- Since that time, she has built an ex- history of compromise and accommo- ceived as any kind of right-wing ideo- cellent reputation as a judge, and I am dation regarding appointments to this logue. He liked Estrada so much that confident that Judge Horn will con- court, there has been no consultation he asked him to help him screen his tinue being a fine member of the Fed- with the Democratic leadership regard- law clerks. I think that is a matter eral Bench. ing the remaining nominations to the that is a positive thing. Mr. LEAHY. Mr. President, today we Court of Federal Claims. Instead, the The PRESIDING OFFICER. There is consider the nomination of Judge Mar- White House proceeded as it does with a standing order for a vote on another ion Blank Horn to the U.S. Court of most things—unilaterally. The same is nominee at 5:30. Federal Claims. Although this is not a true with respect to the Parole Com- so-called ‘‘Article III’’ court with life- f mission, the Federal Election Commis- time appointments, it is an important sion and many other bipartisan boards NOMINATION OF MARIAN BLANK court with 15-year terms for its mem- and commissions. HORN, OF MARYLAND, TO BE A bers. Judge Horn has been serving on I can count on one hand the number JUDGE OF THE UNITED STATES the court for almost 15 years and I do of States that have any sort of bipar- COURT OF FEDERAL CLAIMS not oppose her re-appointment. What I tisan selection commission for their The PRESIDING OFFICER. Under do take issue with, however, is the Ad- district court judges. The importance the previous order, the hour of 5:30 p.m. ministration’s unilateral actions, in of such organizations is paramount. having arrived, the Senate will now spite of the bipartisan cooperation and They ensure that nominees for judicial proceed to the consideration of Execu- appointments of other Presidents to office are selected based upon profes- tive Calendar No. 43, which the clerk this and other courts. sional merit and experience. The rec- will report. The process for nominating judges to ommendations of such commissions The legislative clerk read the nomi- the Court of Federal Claims has tradi- have the support of members from nation of Marian Blank Horn, of Mary- tionally included accommodation and their community on both sides of aisle. land, to be a Judge of the United compromise. For more than 2 years Accordingly, these bipartisan commis- States Court of Federal Claims. Senate Republicans blocked President sions preserve the independence and in- Mr. HATCH. Mr. President, it is my Clinton’s appointment of Larry Baskir tegrity of the judicial branch of gov- pleasure today to speak in support of to the court until a compromise could ernment and ensure the fair and equal Marian Blank Horn, who has been nom- be reached. They refused to give him a administration and enforcement of jus- inated for a second term on the U.S. hearing and refused to allow any of the tice. Federal Court of Claims. Judge Horn is other vacancies to be filled unless the Unfortunately, this President has a distinguished United States Court of administration promised to keep con- thwarted the development of bipartisan Federal Claims Judge whose legal ca- servative Judge Loren Smith as the boards and commissions for judicial ap- reer has been nothing short of stellar. Chief Judge. Republicans also insisted pointments. The White House Counsel Judge Horn graduated from Fordham on the reappointment of another Re- has indicated publicly that he does not University Law School in 1969, and publican appointee, Judge Christine favor bipartisan committees because began her career as an assistant dis- Miller. Finally, Senator HATCH agreed they ‘‘usurp the president’s constitu- trict attorney in Bronx County, NY, to allow five Clinton nominees to have tional authority to choose judges.’’ before joining Arent, Fox, Kintner, hearings and votes if the administra- This unilateral and uncompromising Plotkin and Kahn, where she worked in tion also named his staffer Edward view disregards the constitutional role the litigation division. Damich to the court and promised to of the Senate. It also fails to acknowl- From 1973 to 1975, Judge Horn was a retain Judge Smith as Chief until his edge that these commissions simply project manager for a Study of Alter- retirement into lifetime senior status make recommendations to the Presi- natives to Conventional Criminal Adju- at the end of his term appointment. dent. They do not make nominations in dication which was financed by the Upon Chief Judge Smith’s ‘‘retire- lieu of the President. The administra- U.S. Department of Justice’s Law As- ment,’’ President Clinton named Judge tion’s disdain for bipartisan commis- sistance Enforcement Administration. Baskir the Chief Judge. Shortly after sions ignores past precedent and tradi- She also served as an adjunct professor his inauguration, President George W. tion. at American University’s Washington Bush summarily removed Judge Baskir It is one thing for a President to ap- College of Law, where she taught the as chief judge and installed Judge point members of his Cabinet to carry Introductory Legal Methods course. Damich as the Chief Judge. out his political agenda but it should In 1975, Judge Horn joined the Office Last fall when the Democrats were in be different with respect to judicial ap- of General Counsel for the Department the majority, we took the exceptional pointments. When a President makes

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