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, WEDNESDAY, FEBRUARY 12, 2003 No. 26—Part II Senate EXECUTIVE SESSION The problem here is that he didn’t cuit Court of Appeals for the District answer the questions the way they of Columbia. wanted him to. He answered them the Mr. SANTORUM. Mr. President, will NOMINATION OF MIGUEL A. way he should have. We put those ques- the Senator yield for a question? ESTRADA, OF VIRGINIA, TO BE tions and those answers into the UNITED STATES CIRCUIT JUDGE Mr. HATCH. I am happy to yield for RECORD today. a question without losing my right to FOR THE DISTRICT OF COLUM- It is unfair, after what this man has BIA CIRCUIT the floor. gone through—after all the hearings, Mr. SANTORUM. Mr. President, one (Continued) all the questions, all the time that has of the issues I have heard raised by the The PRESIDENT pro tempore. The elapsed—almost 2 years—that this other side is that the nominee has not Senator from Utah. highly qualified individual is now being had judicial experience. In fact, the Mr. HATCH. Mr. President, here we filibustered on the floor of the Senate. chairman of the House Democratic His- are in the middle of an unprecedented If the Democrat Members of the Sen- panic Caucus wrote a letter to the Ju- filibuster against the first Hispanic ate do not like his answers, then they diciary Committee, I understand. have a remedy; that is, vote against nominee to the Circuit Court of Ap- I want to quote from Congressman peals for the District of Columbia— Miguel Estrada. I can live with that. BOB MENENDEZ, who says: against a man who has a unanimously That is their right. If that is what they well-qualified rating by the ABA, want to do, that is a proper exercise of If the Senator— which was the gold standard of the their constitutional duty. Referring to Senator HATCH— But really understand that to con- Democrats and something that a lot of chooses to ignore one of the many reasons confirmed judges did not have; a man stitutionally modify the advice and we oppose the Estrada nomination, simply who has all the credentials in the consent process of the Constitution and put, he has no judicial expedience. world—magna cum laude from Colum- now require 60 votes in order to have a Presidential nominee confirmed by the Now, I find this to be a particularly bia, magna cum laude from the Har- amazing argument coming from some- vard School of Law, editor in chief of Senate is unprecedented, except in one case, and that was Judge Fortas. Presi- one who is Hispanic, given the paucity the Law Review, clerked for two Fed- of Hispanics on the bench right now, eral judges, one on the Second Circuit dent Nixon himself fought against that and argued against that. But it was a that we are setting this bar before a Court of Appeals put on the bench by group that only has about 3-percent President Carter, a Democrat, and, the bipartisan filibuster, if you have to characterize it. representation on the bench right now other, Supreme Court Justice Anthony but comprises 14 percent of the popu- Kennedy—lots of experience, worked in To simply deny the Senate a vote is unfair. It is unfair to the Senate, it is lation of this country, that someone the Solicitor General’s Office. who heads the Democratic Hispanic We have heard a lot of arguments, unfair to the President, it is unfair to Caucus will put this bar to Hispanic and many respected arguments. We the process, and it certainly is unfair nominees, that they do not have judi- have heard that Mr. Estrada has not to this Hispanic American, who, by the cial experience. answered the questions of Senators on way, has risen to be one of the best ap- that side. Well, he has. He spent a full pellate lawyers in the country even Has such a bar ever been placed be- day when they conducted the hearings. though he has the speech impediment fore that you are aware of for nomi- They set the agenda. They asked any disability. Think of it. He has a speech nees? questions they wanted to ask. They impediment, and yet he has argued 15 Mr. HATCH. First, let’s understand were in control. They have even said on cases before the U.S. Supreme Court, the Democratic Hispanic Caucus. They the floor during this debate that the winning 10 of them. I can’t name many did not allow the Republican Hispanics, hearings were conducted fairly by candidates for judicial office in my 27 the three of them in the House of Rep- them. years in the Senate who had even come resentatives, to become part of that. Then, when the election was lost, all close to that record. So it is clearly a very partisan group. of a sudden they now want to ask more I think this is an abuse of the proc- We have a couple of our colleagues in questions. And, by the way, they had ess. It is an abuse of what has really the Chamber from the House of Rep- an opportunity to ask any written been precedent through all of these resentatives watching this very care- questions after the full hearing. Only years. It is an abuse by the minority. It fully, people who have spoken out for two Senators asked written questions— is nothing more than what some would the Hispanic community. Senator DURBIN from Illinois and Sen- call the tyranny of the minority Secondly, by saying that he does not ator KENNEDY from Massachusetts. He against the first Hispanic nominee in have any judicial experience, therefore, answered those questions. the history of this country to the Cir- he doesn’t qualify to be on the Federal

∑ 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 01:00 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.169 S12PT2 S2308 CONGRESSIONAL RECORD — SENATE February 12, 2003 bench, what does that say to every Janet Reno Justice Department. And it speaking any English when he was a member of the Hispanic Bar Associa- would seem highly unlikely to me that teenager? tion, none of whom, really, except cur- a right-wing ideologue would be hired Mr. HATCH. He came to the United rent judges, have any judicial experi- to work for the Clinton Justice Depart- States at age 17, if I recall it correctly. ence in the sense of having been judges. ment. But that is the charge that is He had a very limited knowledge of It means he is saying they cannot be being brought against him; is that cor- English, taught himself English, went judges either. rect? on to Columbia University, graduating What kind of a representative of the Mr. HATCH. The nominee, Miguel magna cum laude, and from there went Hispanic community would make that Estrada, worked for the Clinton admin- on to Harvard University, where he kind of a statement, if he really wants istration. He worked in the Solicitor also graduated magna cum laude and to help the Hispanic community? Or is General’s Office of the Justice Depart- also was editor in chief of the Harvard that representative just making par- ment in the Clinton administration. Law Review. tisan remarks, which is what I believe And it is highly unlikely that he would Yes, he overcame a lot of problems. he was doing? have received the support of Seth Wax- As I say, that is in addition to his dis- The fact is, we have confirmed 26 man and other prominent Democrats if ability that has not stopped him from Clinton judges who have not had judi- he were a right-wing ideologue. In fact, reaching the heights of the legal pro- cial experience—26. That is the Seth Waxman says he is not. fession. phoniest argument I have heard yet, Now, Seth Waxman was a Democrat Mr. GREGG. Will the Senator yield and it is a disgrace to argue it in the Solicitor General under Clinton. By the for a further question? sense that Hispanics cannot serve on way, the seven living former Solicitors Mr. HATCH. I yield further to the the judiciary if they have not had judi- General are backing Miguel Estrada, distinguished Senator from New Hamp- cial experience. four of whom are Democrats: Seth shire. Now, let’s think of one other thing. Waxman, Drew Days, Walter Dellinger, Mr. GREGG. That is one incredible Miguel Estrada was a law clerk to and Archibald Cox. record. Is not Columbia University a Amalya Kearse, a Carter appointee, on Mr. BROWNBACK. I thank my col- university in New York City? I believe the Second Circuit Court of Appeals. league for responding to the question. I the Senator from New York was on the That is judicial experience. He helped find it so odd that would be a charge floor. In fact, it is one of the finest uni- write some of the opinions that she brought against him. He worked for the versities in the United States. And an made. He was a law clerk to Anthony Clinton administration, the Janet extremely competitive person came Kennedy on the Supreme Court of the Reno Justice Department. over when he was 17. He must have United States of America. That is a lot Mr. REID. Mr. President, I object. I been admitted when he was 19 or 20. He more than a lot of others, than any of object to the statement. I object. I ob- matriculated there, and graduated the 26 Clinton appointees had. ject. magna cum laude; is that correct? He So to say that he has not had judicial Mr. HATCH. I ask for the regular must be an extremely bright indi- expedience—but even if you do not order. vidual. And then he went on and grad- count that as judicial experience, this The PRESIDENT pro tempore. Reg- uated from Harvard. And he was editor is a man with every qualification, and ular order. Regular order. The Senator of the Harvard Law Review, one of the they have not laid a glove on him. It is from Utah has the floor. Members ask- finest law reviews in the country. really very unfair, and I think we ing questions will address the Chair. He must be an incredibly bright indi- ought to all stop and think about that. Mr. NICKLES. Mr. President, will the vidual; is he not? But I would also like to point out—I Senator from Utah yield for a ques- Mr. HATCH. The Senator is abso- do not mean to take too long on this tion? lutely correct. Miguel Estrada is a bril- question, but I also would like to point Mr. HATCH. I will, without losing liant individual. out 108 men and women have served on my right to the floor. Mr. GREGG. If the Senator will yield the Supreme Court, and of the 108, 43 Mr. NICKLES. When the Senator was for a further question, are either of had no judicial experience at all. In the talking about judicial experience or those universities considered conserv- Court’s history, 8 of the 16 Chief Jus- legal experience, correct me if I am ative schools? tices—most recently, Chief Justice wrong, but didn’t Miguel Estrada argue Mr. HATCH. I would never want to Earl Warren—had no prior judicial ex- 15 cases before the Supreme Court? And characterize either as being liberal or perience when appointed to the Su- doesn’t that mean he has a lot of expe- conservative. But I think people who preme Court. Of those Justices ap- rience, legal experience, and that he know can very easily characterize pointed in the last 50 years, Justices must be held in highest esteem to be them. William Rehnquist, Lewis Powell, Jr., able to argue 15 cases before the Su- Mr. CHAMBLISS. Mr. President, will Abe Fortas, Arthur Goldberg, and preme Court? the Senator yield for a question? Bryon White had no prior judicial expe- Mr. HATCH. It is a good question. Mr. HATCH. Without losing my right rience when they were appointed to the Miguel Estrada is a full partner in one to the floor. U.S. Supreme Court. of the great law firms of the country, Mr. CHAMBLISS. As a new member I know that is the phoniest argument Gibson, Dunn & Crutcher, at his young of your committee, I do not have the I have heard yet. age. He has argued 15 cases before the pleasure of knowing Mr. Estrada as you Mr. NICKLES. Will the Senator Supreme Court, winning 10 of them. do, but expanding on what the Senator yield? That is a pretty good record. By the from New Hampshire just said, I be- Mr. HATCH. If I could first yield to way, I mentioned he did that suffering lieve that Mr. Estrada has established the Senator from Kansas. a disability. himself in the legal profession in a Mr. BROWNBACK. If you would yield This man has arisen above language very unqualified manner, that he is for a question, I had the pleasure of barriers, immigration barriers, edu- just extremely qualified, is an excel- serving on the Judiciary Committee cational barriers, legal barriers, to at- lent lawyer. And I wish you would give last session of Congress, although we tain to the position he has. He has us the benefit of some of his legal work didn’t get a lot of judges on through lived a Hispanic dream life. And here and his legal background. and cleared, and we are trying to clear he is being held up on the floor of the Mr. HATCH. Well, keep in mind, those now. Senate—without one good reason. Miguel Estrada is a partner in the very But Miguel Estrada was up last ses- Mr. GREGG. Mr. President, will the prestigious law firm of Gibson, Dunn & sion of Congress. One of the charges Senator from Utah yield for a ques- Crutcher. But he got there by clerk- against him, by a number of people, tion? ing—to get a clerk’s position in a Fed- was that he is an ideologue, he is a Mr. HATCH. I will, without losing eral court is a very high honor. To be right-wing ideologue. my right to the floor. editor of the Law Review at Harvard is I would ask the question: It is my un- Mr. GREGG. Mr. President, I ask the one of the highest honors any law derstanding Mr. Estrada worked with Senator from Utah, didn’t Mr. Estrada school can offer. But then he becomes a the Clinton administration for the come to the United States without clerk to Amalya Kearse on the Second

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.170 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2309 Circuit Court of Appeals, which is one Fourteen of his colleagues, I believe, at writing, the confidential recommenda- of the great circuits in this country. the Solicitor General’s Office and tions in writing of appeals, amicus cu- She is a great judge. And then he later throughout the Government, including riae and certiorari petitions. became a clerk to Justice Anthony Seth Waxman, who was Solicitor Gen- Mr. SMITH. A further question, Mr. Kennedy on the Supreme Court, and is eral in the Clinton administration, and President, isn’t it true, though, he has still one of his best friends and advis- I might add Ron Klain, who worked on said he has no problem with their re- ers, and vice versa. And, of course, he the Judiciary Committee, was Al lease? has become a partner in one of the Gore’s most faithful legal advisor, went Mr. HATCH. He has said that. But great law firms in this society. everywhere with Al Gore, totally de- the Justice Department has tremen- He has tried all kinds of cases, 15 be- voted to him, have said he would make dous problems. They not only consider fore the Supreme Court, winning 10. a wonderful judge. He has the tempera- it a matter of principle, they consider When the ABA, which my friends on ment and ability to do so. it a matter of absolute principle. the other side have called the gold Only one person has issued a negative Mr. SMITH. And they are not his to standard, did their thorough investiga- opinion, and that was Professor Paul release? tion of Miguel Estrada, they came to Bender. If you read the record—I don’t Mr. HATCH. That is right. They are the conclusion he is unanimously well want to go through it again—I think not his to release even if he wanted to. qualified, the highest rating the Amer- that opinion should be totally dis- Mr. SMITH. I believe the Washington ican Bar Association can give. That is carded when you look at the facts. Post and others have described this. in spite of all of the impediments this Mr. SMITH. Mr. President, will the Mr. REID. Mr. President, I object. young man has had coming up through Senator from Utah yield for a ques- This is not a time for making state- the ranks from Honduras to this coun- tion? ments. The PRESIDENT pro tempore. The try to college to law school to these Mr. HATCH. I am happy to, without Senator from Utah has the floor. various positions. By the way, I didn’t losing my right to the floor. Mr. HATCH. Let him ask the ques- mention he worked in the Solicitor Mr. SMITH. I wonder if the Senator from Utah could tell us about the in- tion. General’s Office giving very effective The PRESIDENT pro tempore. Sen- ternal memoranda our colleagues on opinions for both the first Bush admin- ators will address the Chair and try to the other side are seeking. It is my un- istration and the Clinton administra- ask a question of the Senator from derstanding Mr. Estrada wrote these tion. Utah. The Senator from Oregon had his memoranda when he served as Assist- Mr. CHAMBLISS. If the Senator will question answered. He did not ask for a ant Attorney General. It is also my un- continue to yield, is it not true he did chance to have another question. The derstanding he has said he has no prob- serve as a Solicitor General in the Senator from Utah may respond. lem with their release. But it is my Clinton administration for several Mr. SMITH. If I could rephrase my further understanding that every living years, advising that administration the question, hasn’t the Washington Post Solicitor General, Republican and same as Republican administrations? opined this is out of bounds, not fair Democrat, has advised against their re- Mr. HATCH. He did. He served as an game, a fishing expedition? assistant to the Solicitor General and lease; is that correct? Mr. HATCH. No question about it. It came away with virtual raves for his Mr. HATCH. That is true. All seven is a fishing expedition. And why is it? work. Only one person has criticized living Solicitor Generals—four Demo- We received the last letter to produce him, and we have more than made it crats, three Republicans—oppose this these materials after they had been re- clear that that criticism is blown away request. The Democrats are Archibald fused, in eloquent, very deliberate and by that person’s, Professor Paul Bender Cox, Seth Waxman, Drew Days, and straightforward letters from the White from Arizona State University, raving Walter Dellinger. The Republicans are House; we received the last request, I reviews of his work when he was actu- Charles Fried, Robert Bork, and Ken think, the day before the hearing on ally there. I think we would rely on Starr. I might add that both the Wash- Miguel Estrada. Frankly, it is clearly a those raving reviews rather than the ington Post and the Wall Street Jour- fishing expedition, trying to find some- political statement that was made nal oppose the demand for these thing because they don’t have anything later. memos. on this man. They just don’t like the There is good reason for that. When Mr. CHAMBLISS. I thank the Sen- fact he is a conservative Republican the Democrats requested the memos, ator. Hispanic. Mr. ALLARD. Mr. President, will the they requested his recommendations Mr. SMITH. I thank the Senator Senator yield? on appeals, his recommendations on from Utah. Mr. HATCH. Yes, without losing my certiorari petitions, his recommenda- The PRESIDENT pro tempore. The right to the floor. tions on amicus curiae briefs. Never in Senator from Virginia. Mr. ALLARD. I have heard some on the history of the Justice Department Mr. WARNER. Mr. President, I ask the floor try and imply that somehow have those type of materials that are the distinguished Senator from Utah if Mr. Estrada has a hot temper, a short privileged, confidential work product he will yield for a question. fuse. First, I would have to say that materials been given to this branch of Mr. HATCH. Without yielding my seems inconsistent with the many let- Government or any other branch. right to the floor. ters from those who know him. That The Democrats have said there are Mr. WARNER. Mr. President, col- includes such people as his former col- four or five cases where the Depart- leagues, this nomination for this Sen- leagues in the Solicitor General’s Of- ment of Justice materials have been ator is a personal matter, for the rea- fice, Ron Klain and Seth Waxman, who given. They have scoured the Justice son that I was privileged to—— all praised his personal demeanor. But Department; the administration and Mr. REID. Mr. President, I have the beyond that, is the Senator as troubled the current Justice Department have utmost respect for my friend from Vir- as I am by the use of these code words scoured those records, and they have ginia. He is making a statement, not that perpetuate stereotypes about His- found in all but Bob Bork there was no asking questions. panics and makes you wonder if we are evidence anybody had given up those Mr. HATCH. Mr. President, I think debating Ricky Ricardo or Miguel records to anybody here. If they have we ought to give the—— Estrada? I see high praise in a New records, they must have been leaked by The PRESIDENT pro tempore. The York Post article that describes him as friends of the Democrats in the admin- Senator from Utah has the floor. The a great American success story. istration. They were not provided by Chair was trying to obtain a ruling I wonder if the Senator from Utah the Justice Department. from the Parliamentarian and did not would respond to that question. In the case of Bob Bork, they did give hear the question. Will the Senator Mr. HATCH. If there is a greater suc- some special request memoranda, be- from Virginia restate his question? The cess story, I would like to meet the cause it was up to the Supreme Court, Senator from Utah, let the Senator person. If you were to meet Miguel affecting the area involving his deci- from Virginia restate his question. Estrada, you would say this is truly a sions with regard to Archibald Cox. Mr. HATCH. I think he should be al- wonderful man and a great lawyer. Certainly not the recommendations in lowed to ask his question.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.172 S12PT2 S2310 CONGRESSIONAL RECORD — SENATE February 12, 2003 Mr. WARNER. I will phrase it as a Mr. BOND. Is it not true, then, that The PRESIDENT pro tempore. Does question. I just wanted to lay a predi- perhaps the best judge of the legal ca- the Senator from Missouri seek to have cate, a foundation for the purpose of pabilities of a law clerk, Assistant So- the question answered? the question. I said this was a personal licitor General, or assistant attorney Mr. BOND. I simply ask the question, matter. I assert that because I had the would be those for whom that clerk or as a Senator, would you ever consent privilege of introducing this distin- assistant worked? to have confidential memoranda pre- guished nominee—— Mr. HATCH. That is correct. And pared for you by a lawyer who hap- Mr. REID. Mr. President, I object to three Democrat Solicitors General re- pened to be in your employ, who is sub- the form of the statement by my friend viewed these materials and had access sequently nominated for a judicial po- from Virginia. He has the right to ask to them, and they have nothing but sition—would you ever consent to a a question. He has no right to make a praise for the work of Mr. Estrada. wholesale turnover of all that work statement. Mr. BOND. Mr. President, there is product prepared for you as a U.S. Sen- The PRESIDENT pro tempore. The something very troubling that I wish ator? Senator has a right to have a preamble to pursue and that is whether a nomi- Mr. HATCH. Put it this way. If one of nee—— to a question before he asks it. He has my excellent staff people was nomi- not asked a question. The Senator from Mr. REID. Mr. President, I object. The PRESIDENT pro tempore. The nated to a Federal judgeship and some- Virginia will continue. body tried to pull that one over on me, Mr. WARNER. I was about to say, I Senator may not address a question to the Chair. I would raise such cane that it would had the privilege of introducing him blow the lid off this building, and I and I did so for several reasons. One, I Mr. BOND. Mr. President, I will ask the question of the Senator from Utah, think anybody else would, too. You can carefully examined the distinguished imagine how the Solicitor General’s dossier of this lawyer. But am I not who happens to be in the line of sight of the Chair, both of whom I respect. I Office must feel for this type of an in- correct this is a nomination to the appropriate request for a confidential, Federal Circuit Court of Appeals for will focus the question to the Senator from Utah. Do you share the concern privileged matter that they have to the District of Columbia? keep that way if they want to not chill Mr. HATCH. You are correct. that should a clerk, assistant counsel Mr. WARNER. Mr. President, I was to a U.S. Senator, or perhaps a Member honest discourse within the Solicitor privileged to be a law clerk. of the other body, be nominated for a General’s Office. This is absurd. That is The PRESIDENT pro tempore. The judicial position, under this principle what they are pinning their hat on Senator will ask another question, enunciated by our friends on the other here. please. side of the aisle the nominee would Let me tell you, if that is what it Mr. WARNER. Yes, Mr. President. I have to turn over all of the papers pre- comes down to, it is going to be hard to shall pose it in the form of a question. pared for that Senator, or that House get any judge through that one or the I had the privilege of being a law clerk Member, or the committee for which other side has a difference with in the on the same circuit court of appeals that nominee may have worked? slightest degree. There is no reason to many years ago. I ask my distin- Mr. HATCH. Well, I have to say that disagree with Mr. Estrada. I have not guished colleague, when a United the Solicitor General’s Office is one of heard one legitimate, good reason—not States Senator goes before the Judici- the most important offices in the coun- one yet. ary Committee for the purpose of in- try. This is the advocate for our coun- Mr. ENSIGN. Will the Senator yield troducing a nominee, does not that try. These opinions are extremely im- for a question? Senator place his or her credibility be- portant. They want the best opinion Mr. HATCH. Yes, without losing my fore that committee in making those they can get from the people who serve right to the floor. statements? there and write the opinions, as Miguel Mr. ENSIGN. Mr. President, I have a Mr. HATCH. As you know, Senator, Estrada did. By necessity, they have to preamble to my question. I heard my you did that. We respect your credi- be confidential and privileged because, colleague refer to the opposition to bility. I think both sides respect your otherwise, the Solicitor General’s Of- Miguel Estrada as imposing an intel- credibility, as we should. You did make fice would not function as well on be- lectual glass ceiling for Hispanics who a very formal and important statement half of the American citizens. are not liberals. We hear a lot about di- So in all honesty, if our friends on on behalf of Miguel Estrada. versity on the courts. Yet some people the other side were to prevail in forc- The PRESIDENT pro tempore. The seem intent on blocking this nominee ing any administration, or if we would Senators cannot have a dialog on the for having a diversity of opinion as do so later because they do so now, floor under the guise of asking ques- compared to what those on the left then that means no privileges will be tions. want. Don’t you agree that an impor- respected in the executive branch of Mr. WARNER. I thank the Chair. tant kind of diversity is the diversity the Government. Now, if we start doing Mr. BOND. Will the Senator yield? of ideas, and isn’t that exactly what Mr. HATCH. Mr. President, I am that, I have to ask you, where does it the opponents of Mr. Estrada and his happy to yield for a question without end? Does it end where the opinions confirmation are trying to prevent—di- losing my right to the floor. our staffs give us at our request have Mr. BOND. Mr. President, I ask the to be given up if they are nominated? verse ideas from a Hispanic nominee? Senator from Utah, who has experience Mr. BOND. That is the question I am Mr. HATCH. It certainly looks that with the entire judicial process. As one asking, the same principle. Would the way to me. One argument is that he is who has served as a law clerk, I ask is same principle apply, that someone not Hispanic enough. That is ridicu- it not commonplace for law clerks, for who had served you or me as a counsel, lous. Others have said he hasn’t had assistants, to write memoranda that do if nominated, would have to provide all any judicial experience. I think we not necessarily reflect their views, but of the memoranda, drafts, and opinions have more than blown that away. I are designed to explain the rulings prepared, or memoranda prepared for don’t think any reasonable person made by the judge or other lawyer or you or me, were they to be nominated? would make that argument. Yet I have solicitor who may serve? Mr. HATCH. Well, let’s just be honest heard argument after argument that he Mr. HATCH. Without question, that about it. Considering a nomination for doesn’t have any judicial experience. is so. a judgeship like it is being done here I agree that some special interest Mr. BOND. Is it the experience and would become just a methodology for groups, and others that have been criti- knowledge of the distinguished chair- anybody. If you didn’t get the papers cizing Mr. Estrada, think all minorities man of the committee that the legal you wanted from some source or other have to think alike. If you are a minor- scholarship may be shown by these rul- in the Federal Government—and it ity, if you don’t toe the liberal line, ings, by these drafts, but they do not in might even include the Senate—then they don’t want anything to do with any way reflect, necessarily, the views you can hold up judges just as they are you. That is the problem here. of the clerk or the assistant? doing here. Look, that would—— I don’t think my colleagues are Mr. HATCH. The Senator is correct Mr. BOND. Mr. Chairman, would you against Mr. Estrada because he is His- once again. ever—— panic. No, it is because he is a Hispanic

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.175 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2311 Republican, and they think conserv- The PRESIDENT pro tempore. Is is nothing to prevent us from taking a ative, who may not agree with some of there objection? stand and voting up or down on Miguel their more liberal ideas. Mr. REID. Objection. Estrada other than the obstructionist It seems to me that this is fundamen- The PRESIDENT pro tempore. Objec- delays being perpetuated by the other tally un-American. I don’t think there tion is heard. side. is anyplace in our system for this type The majority leader. Mr. HATCH. Mr. President, I say to of thinking. Miguel Estrada reached Mr. FRIST. Mr. President, as you can the Senator, that is absolutely true. his views by examining all the facts see, the Chamber, at least on this side Mr. ALLEN. I ask, Mr. President, a and coming to his conclusions, and to of the aisle, is full and ready to vote. further question. Is it not true that on suggest that he or anyone else has to Therefore, I modify the request to ask the DC Court of Appeals there are 12 arrive at a certain political bent—and that the vote occur no later than 1 judges allocated to that court? one only—is simply not fair. He is not week from this Friday, 7 days from Mr. HATCH. That is correct. being treated fairly here. I don’t think now. Mr. ALLEN. Is it not true that there anybody who watches this or looks at Mr. REID. Reserving the right to ob- are four vacancies on that court, it, or understands it would think he is ject. which, calculating, means a third are being treated fairly. He is just not. The PRESIDENT pro tempore. The unfilled? The PRESIDENT pro tempore. Does Senator from Nevada. Mr. HATCH. This is correct. the Senator from Utah yield the floor? Mr. REID. Mr. President, as has been Mr. ALLEN. Does the Senator believe Mr. HATCH. Yes. outlined in detail on many occasions justice is being delayed and, thus, de- The PRESIDENT pro tempore. The here, if the nominee is willing to sub- nied on the DC Court of Appeals due to majority leader is recognized. mit his—— a third of this court being vacant? Mr. FRIST. Mr. President, we opened Mr. GREGG. Regular order, Mr. Mr. HATCH. I agree, justice delayed the Senate a little over 12 hours ago. President. is justice denied, and this is a very im- At the outset, I mentioned that I hoped Mr. REID. Objection. portant court. The problem is our we would have the opportunity to have The PRESIDENT pro tempore. Objec- friends on the other side just do not a good, robust discussion over the day, tion is heard. want a conservative Hispanic ap- and that after that discussion we would The majority leader. pointed by a Republican President on have an opportunity to vote up or down Mr. FRIST. Mr. President, because I that court. on this outstanding, well-qualified think we have had adequate debate, Mr. ALLEN. I ask, Mr. President, a nominee. and discussion—Miguel Estrada is a further question, if the Senator will I am delighted, as I look around the well-qualified nominee, and there is a yield. Chamber, to see at practically every shortage of judges in the United States Mr. HATCH. For a question. Republican desk someone behind it of America, a critical shortage—I mod- Mr. ALLEN. Does the Senator from ready to vote. The discussion has been ify my request to ask that the vote Utah recognize the people of America good today. It has been complete occur no later than 2 weeks from this believe there are many important today. And as my colleagues on the Friday. issues facing this country—terrorism, other side of the aisle mentioned this The PRESIDENT pro tempore. Is war possibly in Iraq, moving forward morning, everything, in essence, has there objection? been said about this well-qualified Mr. REID. Mr. President, we have ap- with creating more jobs and improving nominee. If that is the case and we, in- proved 103 judges—— health care, education—and by the deed, have given sufficient time: It has Mr. BROWNBACK. Regular order. Democratic Party’s obstruction here of been 5 days, since last Wednesday; we Mr. REID. Up to this point. I object. actually voting one way or the other have spent 5 days on this nominee talk- The PRESIDENT pro tempore. Objec- on Miguel Estrada, they are delaying ing about his qualifications, which has tion is heard. this body from acting on these very im- been fascinating over the course of Mr. FRIST. I yield the floor. portant matters for security and job today. Each time I listened to one of The PRESIDENT pro tempore. The opportunities for Americans? our Senators, I learned something. Senator from Utah. Mr. HATCH. I agree 100 percent with Every time, I got more and more ex- Mr. HATCH. Mr. President, as you the distinguished Senator from Vir- cited about this particular nominee. can see, there is no fairness in this ginia. We have attempted to have the up-or- process. This is the first filibuster for a Mr. ALLEN. I thank the Senator. down vote, in fact, on three previous circuit court of appeals nominee in the Several Senators addressed the occasions. We have had a unanimous history of this country. The majority Chair. consent request, and at this juncture I leader has been very fair in granting Mr. DURBIN. Will the Senator yield will again try to reach an agreement extra time. The other side said they for a question? with my Democratic colleagues. have debated it long enough. We have The PRESIDENT pro tempore. Who I therefore ask unanimous consent always voted up or down at this junc- seeks recognition? that there be an additional—an addi- ture, and the minority is unfairly fili- Mrs. HUTCHISON. Mr. President, tional—6 hours for debate on the bustering this nominee for the first will the Senator from Utah yield for a Estrada nomination; provided, further, time in history, this Hispanic-Amer- question? that the time be equally divided be- ican nominee who has climbed every Mr. HATCH. I will be happy to, with- tween the chairman and the ranking step of the way into the American out losing my right to the floor. member, or their designees, and that dream. They are taking an attitude The PRESIDENT pro tempore. The following the conclusion of that time, and a position that takes away from Senator from Texas. the Senate proceed to a vote on the that American dream. Mrs. HUTCHISON. Will the Senator confirmation of the nomination, with Mr. DURBIN. Will the Senator yield from Utah yield for a question? no intervening action or debate. for a question? Mr. HATCH. Without losing my right The PRESIDENT pro tempore. Is Mr. ALLEN. Mr. President, will the to the floor, I will be happy to yield. there objection? Senator—— Mrs. HUTCHISON. Mr. President, I Mr. REID. Reserving the right to ob- The PRESIDENT pro tempore. The ask the Senator from Utah, how many ject, for the reasons outlined since last Senator from Utah has the floor. Who votes does it say in the Constitution Wednesday by the minority, an objec- seeks recognition? are required to confirm a judge in the tion is raised. The Senator from Virginia. Senate? The PRESIDENT pro tempore. Objec- Mr. ALLEN. Mr. President, I ask if Mr. HATCH. A simple majority. It tion is heard. the Senator from Utah will yield for a says we have the power of advising and The majority leader. question. consenting. It does not say we have the Mr. FRIST. Mr. President, I therefore Mr. HATCH. Without losing my right power to advise and filibuster or ob- modify my request to ask that the vote to the floor. struct, which is what is going on here. occur no later than Friday of this Mr. ALLEN. I ask the Senator from Mrs. HUTCHISON. That is my ques- week. Utah if it is true that right now there tion. If the Constitution says 51 votes,

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.177 S12PT2 S2312 CONGRESSIONAL RECORD — SENATE February 12, 2003 or a simple majority, I am asking if it was treated fairly, but in the end he leagues on the other side, but I think would be an effort to go around the had a vote. In the end he sits on the what has gone on does not deserve Constitution to filibuster a Federal Ninth Circuit Court of Appeals even much consideration. judge. Is it even really seemly to fili- though our side, almost to a person, in Mr. KYL addressed the Chair. buster a Federal judge nominee when fact to a person, disagreed with that The PRESIDENT pro tempore. The the Constitution is very clear on this nomination. But we gave him a vote. current occupant of the Chair is no issue? Is it setting a new standard with Let me tell you something— model of decorum, but I am trying to Miguel Estrada that we are going to all The PRESIDENT pro tempore. The establish it. of a sudden have the Constitution Senator will address the Chair, not the Mr. HATCH. I figured that the Chair averted to start requiring 60 votes out Senator. would understand. of 100 to confirm a Federal judge, a Mr. HATCH. Let me address the Several Senators addressed the nominee, which is the President’s abso- Chair then in answering this question. Chair. lute right to make, his right and re- Miguel Estrada, without one thing The PRESIDING OFFICER. The Sen- sponsibility, and he has nominated against him—and by the way, Judge ator from Arizona. these qualified judges? Paez had plenty of things against him Mr. KYL. Will the Senator yield for a Mr. HATCH. There is no question. I that indicated he was not only an ac- question? agree with the distinguished Senator tivist judge but ruled without regard to Mr. HATCH. Yes, without losing my from Texas. That is what is going on the law. There were some legitimate right to the floor. here, and they are depriving this quali- concerns on our side, even though I be- Mr. KYL. To the Senator from Utah, fied Hispanic of his right to sit on this lieved he should have a vote and he ul- I have three questions regarding the bench without any real justification. timately did, unlike Miguel Estrada. Paez nomination which he just referred That is what bothers me. It is a double Let me tell you something, I have to. The first is if the Senator from standard. It is clearly a double stand- not seen one legitimate, substantive Utah could tell us which party was in ard, and it is a double standard that is reason to not give Miguel Estrada the control of this body and by whom the unseemly. I think the Senator put it same privilege that, yes, it took time cloture petition was filed. exactly right. to do and I had to fight it through and Mr. HATCH. Well, I will be happy to. Two of our Hispanic Republican col- there were all kinds of problems; some As I understand it, the Democrats were leagues in the House have come over were very justified problems—— in control, and they filed the cloture here to show their support for Mr. Mr. DURBIN. Will the Senator yield motion—we were in control? OK. We Estrada, Mr. MARIO DIAZ-BALART and for another question? were in control and we filed the cloture Mr. DEVIN NUNES. Mr. HATCH. It is time to give Miguel motion. I am sorry. I am so tired I can- Mrs. HUTCHISON. I thank the Chair. Estrada the same privilege that we not think straight. I yield the floor. gave to Judge Paez. Mr. KYL. The Senator, of course, Several Senators addressed the Mr. DURBIN. Will the Senator yield makes the point. The cloture motion in Chair. for a further question? the case of Judge Paez was filed by the Mr. LEAHY. Will the Senator yield Mr. HATCH. I will be happy to yield party in control of this body, by the for a question? without losing my right to the floor. distinguished majority leader of the The PRESIDENT pro tempore. Who Mr. DURBIN. Would the Senator be Republican Party at that time, TRENT seeks recognition? kind enough to explain that when he LOTT. Several Senators addressed the was chairman of the Senate Judiciary I would also ask this question: Is it Chair. Committee and this Hispanic nominee not true that the debate for Richard The PRESIDENT pro tempore. The Richard Paez was held up for over 1,500 Paez lasted 1 day; that there was no fil- Senator from Illinois. days before his nomination was ibuster of his nomination? Mr. DURBIN. Will the Senator from brought to the floor, it was necessary Mr. HATCH. Well, that is correct, Utah yield for a question? to file a cloture motion to close debate and I suspect that my colleague and Mr. HATCH. I will be happy to yield, to bring his name for a vote before the friend from Illinois would not vote for without losing my right to the floor. Senate? cloture for Mr. Estrada as I did for Mr. DURBIN. I would like to ask the Mr. HATCH. It was not necessary. It Judge Paez—as we did for Judge Paez. Senator the following question: Is it was not necessary because I was fight- Mr. KYL. Mr. President, will the Sen- not true that Richard Paez, a Hispanic ing to have that happen and it did in ator from Utah yield for one final ques- American, nominated to be a U.S. Cir- fact happen, unlike what is happening tion? cuit Judge for the Ninth Circuit, at a today. Mr. HATCH. I will be happy to yield, time when the Senator from Utah was Let me make a suggestion to my col- without losing my right to the floor. chairman of the Senate Judiciary Com- leagues on the other side. I am willing Mr. KYL. With respect to the Paez mittee, waited over 1,500 days before to have one cloture vote, but then let’s nomination, is it not also true that a that committee was forced to finally vote up or down on Estrada. And if you majority of the Republicans supported face a Senate record vote, a cloture win, I will live with that. If you can de- the cloture motion vote so that Judge vote on March 8, 2000, before his nomi- stroy this man’s career so that he can- Paez could get a vote but that many of nation was approved by the Senate? not be a Federal circuit court of ap- those very same Senators then voted Mr. HATCH. It was a disgrace. peals judge, I will live with that. You against him? Having given everyone in Mr. DURBIN. I am sorry. I gave the have a right to vote against him. But this body an opportunity to vote, they wrong date on that. March 8, 2002. you do not have a right to filibuster exercised their right to vote against Mr. HATCH. It was a disgrace that this man, nor should you. It is shame- him but did not deny the right of all Judge Paez had to wait that long, but ful. And it is shameful to put him the other Senators to vote for him, and Judge Paez had an up-or-down vote on through this without one substantive that he was confirmed? this floor allowed by my colleagues at reason to do it other than a phony re- Mr. HATCH. That is correct. I am my request. There was no formal fili- quest for privileged documents that ev- glad the Senator reminded me of that buster at the time. Nobody said there erybody knows is phony. matter. was going to be a filibuster. We know The PRESIDENT pro tempore. The Mr. REID. Will my friend from Utah we have had some cloture votes in the Senator from Utah has the floor. The yield for a question? past, but they have been for votes of Senator from Utah will please restrain Mr. HATCH. I would be delighted to convenience or the majority leader has from referring to another Senator by yield without losing my right to the called them for some reason or another ‘‘you.’’ The Senator must be referred to floor. but not because there was a filibuster. as ‘‘the Senator.’’ Mr. REID. Is the Senator from Utah The important thing is—and, look, I Mr. HATCH. I will be happy to abide aware that earlier this evening we vol- think it is time for your side to under- by that, and I am happy to be corrected untarily gave up the floor, as we knew stand it. The important thing is here by the Chair. I do get a little excited in that you and the majority leader want- was a judge that, yes, I do not think this matter, and I apologize to my col- ed to come and make a statement?

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.180 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2313 Mr. HATCH. Which we would have Mr. REID. Is the Senator aware that Mr. HARKIN. Will the Senator yield? done for you. based on cloture votes, there have Mr. HATCH. I am happy to yield to Mr. REID. I guess the question I am been—— my colleague without losing my right asking is: Who is filibustering this? The PRESIDENT pro tempore. Is the to the floor. Mr. HATCH. I guarantee you it is not Senator asking the Senator from Utah Mr. HARKIN. Mr. President, I ask my us. I guarantee you it is you, and if you to yield? friend from Utah, please explain why deny it I would be happy to go to a vote Mr. REID. Yes, I ask the Senator if the difference in substance rather than right now. he would yield for a further question? form of what happened 2 years ago, Mr. REID. I was just wondering. This Mr. HATCH. I yield for a question, now almost 21⁄2 years ago, in the year is taking quite a while. without losing my right to the floor. 2000. The Judiciary Committee held a Mr. HATCH. Let’s go to a vote. If you Mr. REID. Based on cloture votes, hearing in May 2000 on the nomination are not filibustering, let’s vote. are you aware that there have been 17 of one Bonnie Campbell, former attor- Mr. REID. Another question, if I filibusters on judicial nominees? Are ney general of the State of Iowa to be could, Mr. President? you aware of that? a justice for the Eighth Circuit—and Mr. HATCH. Mr. President, I ask for Mr. HATCH. No way. Nobody has then, nothing. the yeas and nays. ever called those a filibuster and there Then the Republican leadership Mr. REID. On what? has never been a true filibuster against would not bring her name on the floor Mr. HATCH. On this nomination. a circuit court of appeals nominee for a vote. Seven times that fall I came The PRESIDENT pro tempore. Is until this one, and your side has an- to the floor, I say to the Senator, to there a sufficient second? nounced that this is a filibuster. No ask that her name be brought up to Mr. REID. It is debatable after that. one has ever agreed that those others vote, up or down or that at least she So what difference does it make? were filibusters. There were cloture get a vote in committee. The Repub- The PRESIDENT pro tempore. No, it votes, no question about it. But no cir- lican leadership would not bring her is not debatable. cuit nominee has ever been defeated by name up for a vote. I ask the Senator Several Senators addressed the denying cloture, none; zero; nada. from Utah, other than form, what is Chair. Mr. REID. Will the Senator yield for the difference in substance between The PRESIDENT pro tempore. There a question? that and today? is a sufficient second. Mr. HATCH. I would be glad to yield, Mr. HATCH. She was never brought This is ordering the yeas and nays on without losing my right to the floor. to the floor. I acknowledge that. She Mr. REID. The Senator is aware and this nomination. was not. She was 1 of 41 who were left has acknowledged that there have been Several Senators addressed the hanging at the end of that administra- a number of occasions where cloture Chair. tion in contrast to the 54 left hanging had to be invoked on numerous judges, The PRESIDENT pro tempore. It is when the Democrats lost the Presi- not the least of which were Richard improper to ask for the yeas and nays. dency and a Republican was President. Paez and Marsha Berzon in recent There is a sufficient second. In other words, 13 less. And 9 of the 41 years? The Senator from Utah. were put up so late there was no way Mr. HATCH. Let me answer that Mr. HATCH. I will be happy to yield, anyone could get through, so we are question. There has never been a true without losing my right to the floor. down to 32. And with 32 we had other filibuster, until this one, against a cir- Mr. HARKIN. He loses the right to problems. We can have all the statis- cuit court of appeals nominee. In re- the floor on the motion. tics, but we ‘‘bettered’’ the Democrats cent years, both sides have used clo- Mr. HATCH. I will be happy to yield in every case. ture on various occasions other than to the distinguished Senator from Ne- She was not brought up so there was, for filibuster purposes, but there has vada for a question, without losing my naturally, no filibuster. never ever been a true filibuster right to the floor. The PRESIDENT pro tempore. The against a circuit court of appeals nomi- The PRESIDENT pro tempore. The Senator from Maine. Senator from Utah has the floor. nee until this time. And whenever Ms. COLLINS. Mr. President, would Mr. HARKIN. He lost the right to the there has been a cloture vote, the the Senator from Utah yield for a ques- floor. nominee received his or her vote up or tion? Mr. REID. Is the Senator aware that down. Mr. HATCH. Without losing my right Mr. REID. Will the Senator yield? both Democrats and Republicans have to the floor. Mr. HATCH. Which is not being given sought cloture in response to debate or Ms. COLLINS. Would the Senator here and which is being denied here by objections to judicial nominees since from Utah be so kind as to explain the the minority. the cloture rule was extended in 1949? Mr. REID. Will the Senator yield for ABA rating system under which it is Is the Senator aware of that? one final question? my understanding that Mr. Estrada re- Mr. HATCH. I did not hear the ques- Mr. HATCH. Without losing my right ceived the highest possible rating? tion. to the floor. Would the Senator further explain Mr. REID. The question is, Are you Mr. REID. I wish the Senator would whether there was a split rating, or aware that cloture votes on judicial explain to me what a filibuster is. whether it was unanimous, and what nominees are well precedented in re- What is a true filibuster? the general concession of those on the cent history? Mr. HATCH. When there is an at- other side of the aisle has been toward Mr. HATCH. Not for true filibusters. tempt to try and stop debate, when ABA ratings in the past? I agree we have had cloture votes but there is an attempt to try to defeat a Mr. HATCH. I thank the Senator for not for true filibusters. It has been be- candidate. And in every case we have her very erudite question. Let me start cause a majority leader wanted to have had a vote up and down and the judge with the last part of that. a cloture vote, not because we were not has been approved. When the Democrats were in control willing to vote on nominees on either Mr. REID. But the Senator would ac- of the Judiciary Committee and they side. Your side was willing to vote and knowledge it took cloture to have that had a Democrat President, they said we were willing to vote and even when occur? the ABA was the gold standard. I can- they had to go to cloture on Paez, the Mr. HATCH. No. No, I would not. not remember when a nominee who had majority of Republicans voted for clo- Technically, yes, but not because a ‘‘unanimously well-qualified’’ rating, ture, and then a number of Republicans there was a filibuster. And the Senator the highest rating the American Bar voted against. But they did give him an knows that. Association gives, had any difficulty up-or-down vote, even though there In recent years we have used cloture like this. They went through. It was was widespread disagreement with motions for almost everything. But the that simple. There is a double standard Judge Paez. Senator is talking to the Senator from here against this Hispanic gentleman. Mr. REID. Is the Senator—— Utah who knows what a real filibuster I have to admit I was not very Mr. HATCH. I voted for him, by the is, and there has never been a true fili- pleased with the ABA during many of way. buster until today, until this filibuster. the years when they made ratings that

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.182 S12PT2 S2314 CONGRESSIONAL RECORD — SENATE February 12, 2003 were split all the time because of par- Ms. COLLINS. I thank the Senator from Utah as to how it is any different tisanship. They have cleaned that up. from Utah for clarifying this issue for to have Enrique Moreno, with a well- The ABA is doing a decent job and has the Senator from Maine. qualified rating from the American Bar done a pretty decent job in the last 4 or Mr. HATCH. I thank my colleague. Association, nominated to the Federal 5 years. The PRESIDING OFFICER. The Sen- judiciary, refused a hearing before What happens is when a President de- ator from Illinois. then-Chairman Orrin Hatch, because cides to nominate somebody, the ABA Mr. DURBIN. Will the Senator from two Republican Senators from Texas then conducts its own investigation. Utah yield for a question? refused to approve him, thus, frankly, They send top examiners—lawyers, if Mr. HATCH. Without losing my right giving him less consideration than you will—into the area from where this to the floor. Miguel Estrada who is before us today. individual nominee is nominated. They Mr. DURBIN. Pursuing the same Mr. HATCH. I don’t think that is ac- do a complete review with the top, question, can the Senator ever recall a curate at all. The fact is there was no most ethical, highest rated lawyers in Hispanic nominee suggested by Presi- consultation. I informed the counsel at that area, and others, and then they dent Clinton, when he was chairman of the White House there was no consulta- come and meet in what is called a the Senate Judiciary Committee, His- tion, and we were not going to bring standing committee and then they de- panic nominee for the Federal judici- this nominee up without consultation termine what kind of a rating to give. ary who received a well-qualified rat- with both home State Senators. And And the ratings, generally, are ‘‘not ing in which the Senator, then-chair- both home State Senators agreed with qualified,’’ ‘‘qualified,’’ or ‘‘well-quali- man of the Senate Judiciary Com- that. Frankly, I think any chairman fied.’’ Sometimes those ratings have a mittee, refused to even give that nomi- would have handled it exactly the same split rating where some will be well nee a hearing? way. And it is not the same at all. qualified in part and qualified in part. Mr. HATCH. Do you have anyone spe- Miguel Estrada not only had a hear- We have even seen some ratings, well- cifically you are referring to. ing, but he came through the process. qualified and not qualified. Mr. DURBIN. Enrique Moreno. It was a difficult process for him, but In this particular case with this His- Mr. HATCH. In the case of Enrique he came through it and the Judiciary panic nominee, Miguel Estrada, he re- Moreno, there was no consultation, a Committee approved the nomination of ceived the highest possible unani- refusal to consult with home State Miguel Estrada. Miguel Estrada is now mously qualified rating of the Amer- Senators. That is basically something on the floor, so it is completely dif- ican Bar Association. we do not allow in the Judiciary Com- ferent from that situation. There was Just last year, two of the Senators— mittee. It is one of the reasons that we consultation in the case of Miguel the Senator from New York, Mr. SCHU- will use both sides—if there is not ade- Estrada. And, frankly, we are sitting MER, and the Senator from Vermont, quate consultation, it is one of the rea- here right now in a filibuster for the Mr. LEAHY—called the ABA rating the sons we will use to not bring a nominee first time in history of a circuit court gold standard for reviewing judges. up. And I think the distinguished Sen- of appeals nominee, without question. They were not the only ones. Now, all ator from Illinois should know that. If The PRESIDING OFFICER. The Sen- of a sudden, that standard does not you do not, be advised, that was the ator from Arizona. Mr. KYL. Mr. President, I would like seem to be good enough. reason Enrique Moreno did not come Ms. COLLINS. Mr. President, would to address a question to the Senator up. the Senator from Utah yield for just I even wrote a letter to the then- from Utah if he would yield. one more followup question on the Mr. HATCH. Without losing my right Chief Counsel of the White House. I ABA? to the floor. think it was Chuck Ruff at the time, Mr. HATCH. Without losing my right Mr. KYL. Mr. President, I ask the to the floor. bless his memory. I wrote a letter to Senator from Utah, first of all, if the Ms. COLLINS. Is the Senator from him saying: You will not consult—they Senator is aware there are many nomi- Utah aware of any other case in which basically admitted that—and they were nees who, for one reason or another, a judicial nominee received a highly going to bring this up regardless. It never got out of the Judiciary Com- qualified rating from the ABA and was was not adequate or good enough and mittee? In other words, isn’t it correct subject to a filibuster on the Senate no chairman, I think, would allow that there are many nominees who, for a va- floor? nominee to come forward without con- riety of reasons, do not make it to the Mr. HATCH. I can’t think of one sultation—it is just that simple—Dem- floor of the Senate? Is that correct? case. In fact, there has never been a ocrat or Republican. Mr. HATCH. The Senator is correct, true filibuster conducted. In the cases Mr. DURBIN. Will the Senator fur- in both Democratic control of the com- where they have raised the question of ther yield for a question? If the Sen- mittee and Republican control of the cloture votes, cloture votes are called ator will further yield for a question? committee. There are many reasons. for one reason or another by majority Mr. HATCH. Without losing my right The reason may be because of failure to leaders, but in each of those cases, as I to the floor. consult. It may be because of further recall, the nominees had an up-and- Mr. DURBIN. I do not want to bore investigations that have to be con- down vote. I would be happy to go to a the membership with another debate ducted. It may be further FBI inves- cloture vote with our friends on the about the blue slip policy which the tigations have to be conducted. It may other side if afterwards they allow an Senator indicated is going to change, be because of lack of time. It may be up-and-down vote regardless of what but I want to make sure it is clear for because of holds on the Senate floor, happens on the cloture vote—happy to the record in this case, we had a His- which have been used by both sides do it. panic American nominated for the through time. They do not seem to be inclined to do bench by President Clinton, Enrique But I can tell you this. There were that. They want to filibuster the first Moreno, who received a well-qualified less holdovers at the end of my tenure Hispanic nominee to the Circuit Court rating from the American Bar Associa- as chairman of the committee than of Appeals for the District of Columbia, tion, and was refused a hearing before there were in 1992, at the end of the who has a ‘‘unanimously well-quali- the Senate Judiciary Committee when Democrats’ tenure when there was a fied’’ rating by the American Bar Asso- you were chairman because the two Re- Republican President. ciation, their gold standard, and who publican Senators from Texas refused Let me add one last thing to that, has all of these other qualifications to approve the nomination. How is that and that is none of us complained, to that lawyers only dream about. And he different from a filibuster, for the fate my knowledge, about Senator BIDEN as has fulfilled the American dream. He is of Enrique Moreno? chairman when there were 54 holdovers being denied his opportunity to serve The PRESIDING OFFICER (Mr. EN- and 97 vacancies. We had 41 holdovers, by a double standard here that is being SIGN). Will the Senator from Illinois and nine of those were put up so late applied by my colleagues on the other address in the third person, not di- there was no way I could have gotten side. rectly. to them in the remaining few weeks we It is some Members. I know all of Mr. DURBIN. The Chair is correct. I had. So there were really only 32 hold- them cannot feel that way. ask the Chair to address the Senator overs and there were a number of those

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.185 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2315 for which there were justifiable reasons was returned. It is some 25 pages in Rogers & Wells. Position: Summer Asso- for not bringing them up. length and is a complete answer, and ciate, Summer 1984. Mr. KYL. Further on this line of in- he does not refuse to answer any of the Harvard Law School. Position: Research Assistant to Professor Hal S. Scott, 1985– quiry, if I could ask the Senator from questions that were posed by the com- 1986. Utah to yield, other than the case of mittee. These are the same questions Boards: Justice Abe Fortas, does the Senator that are asked of every nominee who 1. Since June 2000, I have been a trustee of from Utah know of any situation in comes before the committee. the Supreme Court Historical Society, an or- which a nominee for the Supreme May I also ask the Senator from ganization dedicated to expanding public Court or the circuit court of appeals, Utah if the answers to this question- awareness of the history of the Supreme Court of the United States. for example, got to the floor of the naire have been printed in the RECORD, 2. Since 1998, I have been a member of the Senate and then was stopped by a fili- and if they have not, if the Senator National Board of Directors of the Center for buster? from Utah would place them in the the Community Interest, an organization Mr. HATCH. There has only been one Record? dedicated to improving the quality of life in true filibuster in the history of this Mr. HATCH. They have not been public spaces. 7. Military Service: Have you had any mili- country, and that was the Fortas nomi- placed in the RECORD. Therefore, I ask nation. I have to say even President tary service? If so, give particulars, includ- unanimous consent the questionnaire ing the dates, branch of service, rank or rate, Nixon was against that filibuster. But and the answers be printed in the serial number and type of discharge received. it was a bipartisan filibuster of both RECORD. Anybody who looks at that I have never served in the military. Democrats and Republicans, unlike will realize it is a very intrusive ques- 8. Honors and Awards: List any scholar- what we are faced with today where a tionnaire. ships, fellowships, honorary degrees, and minority of Democrats are filibus- There being no objection, the mate- honorary society memberships that you be- tering against a Hispanic nominee for rial was ordered to be printed in the lieve would be of interest to the Committee. My college and law degrees were both award- the Circuit Court of Appeals for the RECORD, as follows: ed with high honors. I was elected to Phi District of Columbia, a double stand- I. BIOGRAPHICAL INFORMATION (PUBLIC) Beta Kappa in college. ard. 9. Bar Associations: List all bar associa- 1. Full name: Miguel Angel Estrada tions, legal or judicial-related committees or Mr. KYL. Mr. President, I ask the Castan˜ eda conferences of which you are or have been a Senator from Utah to yield for two 2. Address: Residence—Alexandria, Vir- member and give the titles and dates of any other questions. ginia; Office—Gibson, Dunn & Crutcher LLP, offices which you have held in such groups. Mr. HATCH. Without losing my right 1050 Connecticut Avenue, N.W., Washington, (a) Members, American Bar Association to the floor. D.C. 20036. (1987–1993, 2001-present), (b) Barrister, Ed- 3. Date and place of birth: September 25, Mr. KYL. This goes back, I would ad- ward Bennett Williams White Collar Crime 1961, Tegucigalpa, Honduras (became natu- vise the Senator from Utah, to the Inn of Court, Washington, D.C. (since 1998), ralized U.S. Citizen on 2/4/86). question of whether or not there has (c) Barrister, Edward Coke Appellate Inn of 4. Martial Status (including maiden name of been a full opportunity to discover Court, Washington, D.C. (since 2001), (d) wife, or husband’s name). List spouse’s occu- Member, The Barristers, Washington, D.C. what this nominee believes, what his pation, employer’s name and business ad- (since 1998), (e) Member, The Federalist Soci- background is, whether he is well dress(es). Married to Laury Lea Estrada (nee ety (since 1993). qualified, whether there has been an Gordon), Senior Trial Attorney, U.S. Depart- 10. Other Memberships: List all organiza- opportunity, in other words, to ques- ment of Justice, Narcotic and Dangerous tions to which you belong that are active in tion him and whether he has provided Drugs Section, 1400 New York Avenue, N.W., lobbying before public bodies. Please list all full and complete information. Would Washington, D.C. 20005. other organizations to which you belong. To the Senator from Utah advise all of us 5. Education: List each college and law my knowledge, no organization of which I school you have attended, including dates of how many hours, if it was hours, this am a member is active in lobbying public attendance, degrees received, and dates de- bodies. In addition to the bar associations nominee was before the Judiciary Com- grees were granted. State University of New mittee and whether he answered all of listed in response to question 9, I belong the York at Old Westbury, May 1979 to June 1980 following organizations: (a) Member, Old the questions that were put to him at (no degree) Columbia College, Sept. 1980 to Town Civic Association, Alexandria, Vir- that hearing? June 1983; A.B. degree granted June 1983 Har- ginia, (b) Member, Old Town Walled Garden Mr. HATCH. In an unusual hearing, vard Law School, Sept. 1983 to June 1986; Club, Alexandria, Virginia, (c) Member, The which was much longer than most cir- Juris Doctor Degree granted on June 1986. Alexandria Association, Alexandria, Vir- cuit court of appeals hearings, from 10 6. Employment Record: List (by year) all ginia, (d) Member, Smithsonian Associates, o’clock to 5:30 that day, he was asked business or professional corporations, com- Washington, D.C. panies, firms, or other enterprises, partner- question after question. He was asked 11. Court Admission. List all courts in which ships, institutions and organizations, non- you have been admitted to practice, with question after question by Democrats profit or otherwise, including firms, with dates of admission and lapses if any such as well as Republicans, but mainly which you were connected as an officer, di- memberships lapsed. Please explain the rea- Democrats, to the extent that we have rector, partner, proprietor, or employee son for any lapse of membership. Give the this transcript that is larger than most since graduation from college. same information for administrative bodies transcripts we have, other than Su- Employment: Gibson, Dunn & Crutcher which require special admission to practice. preme Court nominees, where he an- LLP. Positions: Of Counsel attorney, July I have been admitted to practice in the 1977–December 1999, and Partner, January swered the questions. The problem courts of the State of New York (since July 2000-present. 1987) and the District of Columbia (since De- with the Democrats, as I understand it, Office of the Solicitor General, United cember 1998). There have been no lapses in is he just didn’t answer the questions States Department of Justice. Position: As- my admission to those courts. In addition, I the way they wanted. But he answered sistant to the Solicitor General, Sept. 1992 to am a member in good standing of the bars of them and he answered them in accord- July 1997. the following federal courts: ance with the directions of no less than Wachtell, Lipton, Rosen & Katz. Position: U.S. Court of Appeals, Second Circuit, 3/25/ Lloyd Cutler, one of the leading Demo- Associate, Sept. 1987–February 1988, Feb- 91; U.S. District Court, Southern District of crat lawyers in the country. ruary 1989–March 1990, and May 1992–Sep- New York, 5/26/92; U.S. District Court, East- Mr. KYL. Mr. President, my final tember 1992. ern District of New York, 5/26/92; U.S. Su- United States Attorney’s Office, Southern preme Court, 7/17/92; U.S. Court of Appeals, question to the Senator from Utah, if District of New York. Position: Assistant Fifth Circuit, 2/17/93; U.S. Court of Appeals, he would yield please. United States Attorney, March 1990 to May Ninth Circuit, 11/10/97; U.S. District Court, Mr. HATCH. I would be happy to 1992. Western District of New York, 1/13/98; U.S. without losing my right to the floor. United States Supreme Court. Position: Court of Appeals, Third Circuit, 3/13/98; U.S. Mr. KYL. I think I counted 30 ques- Clerk to Hon. Anthony M. Kennedy, Feb- Court of Appeals, Fourth Circuit, 3/30/98; U.S. tions that were orally asked during the ruary 1988 to February 1989. Court of Appeals, Eleventh Circuit, 5/01/98; course of a hearing that, as I under- United States Court of Appeals for the Sec- U.S. Court of Appeals, District of Columbia stand it, went from 10:06 a.m. to 5:25 ond Circuit. Position: Clerk to Hon. Amalya Circuit, 5/07/98. L. Kearse, August 1986 to July 1987. 12. Published Writings: List the title, pub- p.m. In addition to that, the committee Debevoise & Plimpton. Position: Summer lisher, and dates of books, articles, reports, routinely sends a questionnaire to Associate, Summer 1986. or other published material you have written these candidates. That questionnaire Sullivan & Cromwell. Position: Summer or edited. Please supply one copy of all pub- was provided to Miguel Estrada, and it Associate, Summer 1985. lished material not readily available to the

VerDate Jan 31 2003 01:00 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.188 S12PT2 S2316 CONGRESSIONAL RECORD — SENATE February 12, 2003 Committee. Also, please supply a copy of all My last physical examination occurred on sociate, Sept. 1987–February 1988, February speeches by you on issues involving constitu- March 15, 2001. I am advised that I am in 1989–March 1990, and May 1992–September tional law or legal policy. If there were press good health. 1992. reports about the speech, and they are read- 14. Judicial Office: State (chronologically) United States Attorney’s Office, Southern ily available to you, please supply them. any judicial offices you have held, whether District of New York, One St. Andrew’s I have not written books, articles or re- such position was elected or appointed, and a Plaza, New York, New York 10007, Assistant ports, save for a law review note I authored description of the jurisdiction of each such United States Attorney, March 1990 to May while I was a student at the Harvard Law court. 1992. School. That Note, The Policies Behind I have never held judicial office. b. 1. What has been the general character Lending Limits, may be found at 99 Harv. L. 15. Citations: If you are or have been a of your law practice, dividing it into periods Rev. 430 (1985). I was a member of the edi- judge, provide: (1) citations for the ten most with dates if its character has changed over torial board of the Harvard Law Review—a significant opinions you have written; (2) a the years? student journal—from the Fall of 1984 to the short summary of and citations for all appel- I was a corporate lawyer, engaged pri- Spring of 1986. late opinions where your decisions were re- marily in transactional work, during the ap- I have occasionally been asked to offer, versed or where your judgment was affirmed proximately two years I worked at Wachtell, and have given, comments on drafts of schol- with significant criticism of your sub- Lipton, Rosen & Katz. arly articles. Although I do not regard my stantive or procedural rulings; and (3) cita- After leaving Wachtell, Lipton in March role in the writing or publication of those ar- tions for significant opinions on federal or 1990, I became an Assistant United States At- ticles as ‘‘editorial,’’ the following published state constitutional issues, together with torney, a job I held for over two years. As an articles reflect author acknowledgments of the citation to appellate court rulings on Assistant United States Attorney, I rep- my comments: such opinions. If any of the opinions listed resented the government in federal criminal Donald J. Boudreaux & A.C. Pritchard, were not officially reported, please provide trials (both jury and non-jury), bail and Civil Forfeiture and the War on Drugs: Les- copies of the opinions. change-of-plea hearings, and in appeals be- sons from Economics and History, 33 San I have never held judicial office. fore the United States Court of Appeals for Diego L. Rev. 79 (1996). 16. Public Office: State (chronologically) the Second Circuit. Debra Livingston, Police, Community any public offices you have held, other than I left the U.S. Attorney’s Office in May Caretaking and the Fourth Amendment, 1998 judicial offices, including the terms of serv- 1992 to join the Office of the Solicitor Gen- U. Chi. Legal. F. 261. ice and whether such positions were elected eral, where my practice principally involved Robert A. Ragazzo, Reconsidering the Art- or appointed. State (chronologically) any un- representing the U.S. government in cases ful Pleading Doctrine, 44 Hastings L.J. 273 successful candidacies for elective public of- before the United States Supreme Court. I (1993). fice. also handled some cases in the regional Robert A. Ragazzo, Transfer and Choice of I have never been a candidate for, or held, courts of appeals, and gave advice to govern- Federal Law: The Appellate Model, 93 Mich. elective public office. I have served in the ment agencies concerning whether adverse L. Rev. 703 (1995). following appointive public offices: trial court rulings should be appealed to a Robert A. Ragazzo, Unifying the Law of Law Clerk to Hon. Amalya L. Kearse (Aug. regional court of appeals. Although most Hostile Takeovers: Bridging the Unocal/ 1986–July 1987), United States Court of Ap- cases I personally argued before the Supreme Revlon Gap, 35 Ariz. L. Rev. 989 (1993). peals for the Second Circuit, Foley Square, Court involved criminal-law issues, a signifi- Benjamin E. Rosenberg, Criminal Acts and 40 Centre Street, New York, New York 10007. cant portion of my practice—e.g.,, advising Sentencing Facts: Two Constitutional Lim- Law Clerk to the Honorable Anthony M. other agencies on the advisability of appeal- its on Criminal Sentencing, 23 Seton Hall L. Kennedy (Feb. 1988–Feb. 1989), United States ing adverse decisions and opposing petitions Rev. 459 (1993). Supreme Court, One First Street, N.E., for a writ of certiorari—raised a broad range From time to time, I have been asked to Washington, D.C. 20543. of issues typical of civil litigation. I re- speak on issues of federal appellate practice, Assistant United States Attorney (Mar. mained in the Office of the Solicitor General which sometimes raise broader issues of 1990–May 1992), United States Attorney’s Of- for approximately five years. legal policy, at continuing legal education fice, Southern District of New York, One St. I left the Solicitor General’s office to join seminars sponsored by bar organizations. Andrew’s Plaza, New York, New York 10007. the Washington, D.C. office of Gibson, Dunn For example, for the past several years I Assistant to the Solicitor General (Sept. & Crutcher in July 1997. My practice at Gib- have been a participant in the appellate liti- 1992–July 1997), Office of the Solicitor Gen- son, Dunn has primarily involved handling gation seminar that the District of Columbia eral, United States Department of Justice, appellate matters, usually in civil cases, al- Bar organizes every October. For the past 950 Pennsylvania Avenue, N.W., Washington, though I have also occasionally handled several years, I also participated as a pan- D.C. 20530. trial-court litigation. elist in appellate practice seminars orga- 17. Legal Career: 2. Describe your typical former clients, and nized by the National Association of Attor- a. Describe chronologically your law prac- mention the areas, if any, in which you have neys General. I also participated in a similar tice and experience after graduation from specialized. program sponsored by the New York Bar in law school including During my nearly eight years in public New York City in 1999. In May 1999, I was a 1. whether you served as clerk to a judge, service, my client was the United States of panelist at a conference organized by the and if so, the name of the judge, the court, America. In private practice, my former cli- United States Sentencing Commission and and the dates of the period you were a clerk; ents have included, among others, major in- the Federal Bar Association; my panel’s dis- From August 1986 until July 1987, I served vestment banks acting as advisors in merg- cussion addressed, among other things, con- as a law clerk to the Honorable Amalya L. ers and acquisitions, health care providers stitutional issues raised by sentences im- Kearse, United States Court of Appeals for defending against malpractice, ERISA and posed under the federal Sentencing Guide- the Second Circuit. From February 1988 until RICO allegations, corporations seeking to lines. I have not retained any notes reflect- February 1989, I served as a law clerk to the set aside excessive damage awards, individ- ing my remarks as one of the panelists in Honorable Anthony M. Kennedy, Associate uals seeking to set aside criminal convic- such bar seminars, nor am I aware of the ex- Justice, United States Supreme Court. tions, and a qui tam relator seeking to sue a istence of any transcript of my remarks. 2. whether you practiced alone, and if so, State of the Union for fraud. In the Spring of 1999, I participated in a de- the addresses and dates; c. 1. Did you appear in court frequently, bate organized by National Public Radio’s I have never practiced alone. occasionally, or not at all? If the frequency Justice Talking on the public policy issues 3. the dates, names and addresses of law of your appearances in court varied, describe raised by a City of Chicago loitering ordi- firms or offices, companies or governmental each such variance, giving dates. nance, which was then under review by the agencies with which you have been con- Both as a governmental lawyer and as a Supreme Court of the United States. See nected, and the nature of your connection lawyer in private practice, I have appeared City of Chicago v. Morales, 527 U.S. 41 (1997). with each; in court frequently. I was asked to participate in that debate be- In addition to the clerkships identified 2. What percentage of these appearances cause I had authored an amicus brief in sup- above, I have been associated or employed by was in: (a) federal courts; (b) state courts of port of Chicago’s position on behalf of the the following firms and agencies: record; (c) other courts? U.S. Conference of Mayors, the National Gibson, Dunn & Crutcher LLP, 1050 Con- The great majority of my court appear- League of Cities, and the National Gov- necticut Avenue, N.W., Suite 900, Wash- ances (approximately 99%) occurred in fed- ernors’ Association. My opponent in that de- ington, D.C. 20036, Of Counsel attorney, July eral court. I have rarely appeared in state bate was Harvey Grossman, the Legal Direc- 1997–December 1999, and Partner, January courts. tor of the American Civil Liberties Union of 2000–present. 3. What percentage of your litigation was: Illinois, who was counsel for the parties who Office of the Solicitor General, United (a) civil; (b) criminal? sought to challenge the Chicago ordinance. States Department of Justice, 950 Pennsyl- Approximately 70% of the litigation I per- The debate was broadcast in the Fall of 1999. vania Avenue, N.W., Washington, D.C. 20530, sonally handled was criminal. The remainder A transcript is attached. Assistant to the Solicitor General, Sept. was civil. 13. Health: What is the present state of 1992–July 1997. 4. State the number of cases in courts of your health? List the date of your last phys- Wachtell, Lipton, Rosen & Katz, 51 West record you tried to verdict or judgment ical examination. 52nd Street, New York, New York 10019, As- (rather than settled), indicating whether you

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.046 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2317 were sole counsel, chief counsel, or associate sonally argued 15 case before the Supreme Opposing counsel: Ann C. German, P.O. counsel. Court. Among the cases I have argued before Box 1530 Libby, Montana 59923; Tel.: (406) 293– I tried approximately ten cases to judg- that court are: 4191. ment while I was a federal prosecutor. I was 2. Stricter v. Greene, 527 U.S. 263 (1999). I 6. Degen v. United States, 517 U.S. 820 chief counsel in four of those, and was sole represented the petitioner, a death row in- (1996). I represented the United States. The counsel in the remainder. mate, in a federal habeas challenge to his petitioner had been indicted on federal nar- 5. What percentage of these trials was: (a) conviction and death sentence. The principal cotics violations and had fled to Switzerland jury; (b) non-jury? issue in the case was whether the prosecu- to avoid prosecution. The issues for the Su- All but one of the cases (approximately tion violated the rule of Brady v. Maryland, preme Court were (i) whether federal courts 90%) were tried to a jury. 373 U.S. 83 (1963), by failing to disclose to de- possess inherent authority to forfeit prop- 18. Litigation: Describe the ten most signifi- fense counsel that a purported eyewitness to erty civilly, without a hearing, when the cant litigated matters which you personally the crime had been repeatedly interviewed party claiming such property is a fugitive handled. Give the citations, if the cases were by the police and had made statements cast- from United States justice, and (ii) whether reported, and the docket number and date if ing doubt on her in-court identification. I such a forfeiture would violate the claim- unreported. Give a capsule summary of the was the principal draftsman of the peti- ant’s due process rights. I was the principal substance of each case. Identify the party or tioner’s merits briefs in the United States draftsman of the government’s brief and also parties whom you represented; describe in Supreme Court, and also argued the case be- argued the case before the Supreme Court. detail the nature of your participation in the fore the Supreme Court. The Supreme Court The Court ruled that federal courts slack in- litigation and the final disposition of the ruled that the evidence was exculpatory herent authority to forfeit a fugitive’s prop- case. Also state as to each case: (a) the date under Brady, but that it was not sufficiently erty. of representation; (b) the name of the court material to create a reasonable probability Opposing counsel: Lawrence S. Robbins, and the name of the judge or judges before of acquittal. Mayer, Brown & Platt, 2000 Pennsylvania Av- whom the case was litigated; and (c) the in- Co-Counsel: Barbara Hartung, 1001 East enue, N.W. Washington, D.C. 2006; Tel.: (202) dividual name, addresses, and telephone Main Street, Richmond Virginia 23219; Tel.: 463–2000. numbers of co-counsel and of principal coun- (804) 649–1088. 7. Citizens Bank of Maryland v. Strumpf, sel for each of the other parties. Opposing counsel: Pamela A. Rumpz, As- 516 U.S. 16 (1996). I argued the case on behalf 1. In re Managed Care Litigation, MDL No. sistant Attorney General, Commonwealth of of United States as amicus curiae in support 1334 (S.D. Fla., Moreno, J.). I am counsel for Virginia, 900 East Main Street, Richmond, of reversal. The issue in this case was wheth- Aetna, Inc. and its healthcare subsidiaries Virginia 23219; Tel.: (804) 786–2071. er the ‘‘automatic stay’’ provisions of the (‘‘Aetna’’) in a series of putative nationwide 3. United States v. Gonzales, 520 U.S. 1 Bankruptcy Code, see 11 U.S.C. § 362, are vio- class actions that have been filed throughout (1997). I represented the United States. The lated when a creditor temporarily withholds issue in the case was whether 18 U.S.C. the United States against Aetna and most payment of a debt that the creditor owes to § 924(c), which provides mandatory sentences members of the managed care industry. The the bankrupt debtor in order to protect the for defendants who use firearms in connec- Judicial Panel on Multidistrict Litigation creditor’s set-off rights. The Supreme Court tion with narcotics crimes or violent offense, has consolidated those cases for coordinated ruled that a creditor in such circumstances permits federal courts to impose a concur- pretrial proceedings in the United States does not violate the Code’s ‘‘automatic stay’’ rent sentence when the defendant already is District Court for the Southern District of provisions. Florida. The suits generally allege that cost- serving a state sentence. I was the draftsman Co-counsel: Irving E. Walker, Miles & containment mechanisms used by Aetna and of the certiorari petition and the petitioner’s Stockbridge, P.C., 10 Light Street, Balti- briefs on the merits, and also argued the case other managed care companies amount to more, Maryland 21202; Tel.: (410) 727–6464. violations of RICO, ERISA and various state before the United States Supreme Court. The Opposing counsel: Roger Schlossberg, 134 laws—because they allegedly provide incen- Supreme Court ruled that Section 924(c) re- West Washington Street, Hagerstown, Mary- tives for physicians to provide deficient med- quires that sentences under that provision land 21740; Tel.: (301) 739–8610. ical care, and thus fraudulently reduce the must be consecutive to any other sentence 8. United States v. Robertson, 514 U.S. 669 value of the insurance coverage purchased by that the defendant might be serving. (1995). I wrote all briefs and argued the case Opposing counsel: (1) Angela Arellanes, 320 subscribers—and they seek billions of dollars on behalf of the United States. The principal Gold Avenue, S.W., Suite 1111, Albuquerque, in damages. I share with one of my partners issues in this case were (i) whether the Rack- New Mexico 87102; Tel.: (505) 247–2417, (2) Ed- the day-to-day supervision of this litigation eteer Influenced and Corrupt Organizations ward Bustamante, 610 Gold Street, S.W., Al- on behalf of Aetna, which is the largest de- Act, 18 U.S.C. § 1961 et seq. reaches the full buquerque, New Mexico 87102; Tel.: (505) 842– extent of conduct that Congress could con- fendant. In that connection, I have been re- 9093, and (3) Roberto Albertorio, One Civic ceivably regulate under the Commerce sponsible for developing our client’s legal Plaza, Room 4030, Albuquerque, New Mexico Clause of the U.S. Constitution, and (ii) strategy, preparing all briefs in the case, and 87102; Tel.: (505) 924–3917. arguing dispositive motions. 4. Old Chief v. United States, 519 U.S. 172 whether the evidence in the case satisfied Opposing Counsel: Jerome Marcus, Berger (1997). I argued the case before the United the statute’s ‘‘interstate commerce’’ require- & Montague, 1622 Locust Street, Philadel- States. The issue for the Court was whether ment. The Court ruled that the evidence sub- phia, PA 19103; Tel.: (215) 875–3013. a criminal defendant may ever prevent the mitted by the government—including evi- Co-counsel: (1) Richard Doren, Gibson, government from introducing evidence of a dence that the defendant shipped materials Dunn & Crutcher, 333 South Grand Avenue, fact relevant to the prosecution’s case by from California to Alaska—satisfied the Los Angeles, California 90071; Tel.: (213) 229– stipulating to the existence of that fact. The statutory and constitutional requirements. 7038 (co-counsel for Aetna); (2) John D. Supreme Court ruled that a criminal defend- Opposing counsel (last known address and Aldock, Shea & Gardner, 1800 Massachusetts ant may, in some circumstances, keep the telephone number): Glenn Stewart Warren, Avenue, N.W., Suite 800, Washington, D.C. government from introducing evidence of the 2442 Fourth Avenue, San Diego, California 20036; Tel.: (202) 828–2140 (counsel for Pruden- defendant’s prior conviction if the defendant 92101; Tel.: (619) 232–6052. tial); (3) Brian D. Boyle, O’Melveny & Myers, offers to stipulate before the jury that he is 9. United States v. Mezzanatto, 513 U.S. 196 LLP, 555 13th Street, N.W., Washington, D.C. indeed a felon. (1995). I wrote the briefs and argued the case 20004; Tel.: (202) 383–5263 (counsel for Opposing counsel: Daniel Donovan, Federal on behalf of the United States. In order to Humana); (4) Edward M. Crane, Skadden Defenders of Montana, 9 Third Street North, induce the prosecutor to engage in plea nego- Arps Slate Meagher & Flom, LLP, 333 West Great Falls, Montana 59403; Tel.: (406) 727– tiations, the defendant in this case had Wacker, Suite 2100, Chicago, Illinois 60606: 5328. agreed to waive the protections of Fed. R. Tel.: (312) 407–0522 (counsel for Foundation 5. Montana v. Eglehoff, 518 U.S. 37 (1996). I Evid. 410, which ordinarily render all evi- Health Systems); (5) Robert Denham, Powell, represented the United States as amicus cu- dence of plea negotiations inadmissible in Goldstein, Frazer & Murphy LLP, 191 Peach- riae in support of the position of the State of court. The defendant later changed his mind, tree Street, N.E., 16th Floor, Atlanta, Geor- Montana. The issue in the case was whether and testified at trial to a story that was in- gia 30303; Tel.: (404) 572–6940 (counsel for Cov- the Due Process Clause of the Fourteenth consistent with what he had told the pros- entry); (6) William E. Grauer, Cooley Amendment, invalidates state legislation ecutor. In reliance on the defendant’s agree- Godward LLP, 4365 Executive Drive, Suite that renders any evidence of involuntary in- ment, the trial court permitted the pros- 1100, San Diego, California; Tel.: (858) 550– toxication irrelevant and inadmissible in a ecutor to impeach the defendant with his 6050 (counsel for PacificCare); (7) John G. prosecution for intentional homicide. I was prior inconsistent statements. The U.S. Harkins, Jr., Harkins Cunningham, 2800 One the draftsman of the United States’ brief, Court of Appeals for the Ninth Circuit re- Commerce Square, 2005 Market Street, and also presented argument before the versed, ruling that the rules of evidence—in- Philadelphia, Pennsylvania 19103; Tel.: (215) United States Supreme Court in support of cluding Rule 410—may never be waived by 851–6701 (counsel for CIGNA); and (8) Jeffrey Montana position. By a vote of 5 to 4, the agreement of the parties. The Supreme Court S. Klein, Weil, Gotshal & Manges, 767 Fifth Court upheld the constitutionality of the granted certiorari to review that conclusion, Avenue, New York, New York 10153; Tel.: statute. and, after briefing and argument, reversed (212) 310–8790 (counsel for United Healthcare) Co-counsel: Pamela P. Collins, Assistant the Ninth Circuit’s ruling. The Supreme I have also briefed numerous cases in the Attorney General, Justice Building, 215 Court held that rules of evidence, like most federal courts of appeals and in the Supreme North Sanders, Helena, Montana 59620; Tel.: rights conferred by statute, may be waived Court of the United States, and I have per- (406) 444–2026. by agreement of the parties.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.047 S12PT2 S2318 CONGRESSIONAL RECORD — SENATE February 12, 2003 Opposing counsel: Mark R. Lippman, 8070 with or without compensation, during your states that it is inappropriate for a judge to La Jolla Shores Drive, La Jolla, California service with the court? If so, explain. hold membership in any organization that 92037; Tel.: (858) 456–5840. No. invidiously discriminates on the basis of 10. National Organization for Women, Inc. 4. List sources and amounts of all income race, sex, or religion. Do you currently be- v. Scheidler, 510 U.S. 249 (1994). I wrote the received during the calendar year preceding long, or have you belonged, to any organiza- briefs and argued the case on behalf of the your nomination and for the current cal- tion which discriminates—through either United States as amicus curiae in support of endar year, including all salaries, fees, divi- formal membership requirements or the petitioner. The issue in the case was whether dends, interest, gifts, rents, royalties, pat- practical implementation of membership the Racketeer Influenced and Corrupt Orga- ents, honoraria, and other items exceeding policies? If so, list, with dates of member- nizations Act, 18 U.S.C. § 1961 et seq. incor- $500 or more. (If you prefer to do so, copies of ship. What you have done to try to change porates a ‘‘pecuniary purpose’’ requirement the financial disclosure report, required by these policies? for liability, so that only criminal enter- the Ethics in Government Act of 1978, may I do not currently belong, nor have I ever prises that violate RICO for mercenary rea- be substituted here.) belonged, to any organization that discrimi- sons would be liable civilly or criminally. Please refer to my Ethics in Government nates in any way on the basis of race, sex, or (That interpretation of RICO had originated Act report. religion. with the U.S. Court of Appeals for the Sec- 5. Please complete the attached financial 3. Is there a selection commission in your ond Circuit, which had reversed the criminal net worth statement in detail. (Add sched- jurisdiction to recommend candidates for convictions of several Croatian terrorists ules as called for.) nomination to the federal courts? If so, did it who engaged in multiple bombings and ar- Please refer to attached statement. recommend your nomination? Please de- sons for ‘‘ideological’’ reasons related to 6. Have you ever held a position or played scribe your experience in the entire judicial their desire to achieve independence for a role in a political campaign? If so, please selection process, from beginning to end (in- their homeland). The Supreme Court unani- identify the particulars of the campaign, in- cluding the circumstances which led to your mously held that RICO does not embody a cluding the candidate, dates of the cam- nomination and interviews in which you par- ‘‘pecuniary purpose’’ requirement. paign, your title and responsibilities. ticipated). Co-counsel: Fay Clayton, Robinson, Curley I have never played any role in any polit- There is no selection commission that rec- & Clayton, P.C., 300 South Wacker Drive, ical campaign. ommends candidates for nomination to the Suite 1700, Chicago, Illinois 60606; Tel.: (312) III. GENERAL (PUBLIC) United States Court of Appeals for the Dis- 663–3100. 1. An ethical consideration under Canon 2 trict of Columbia Circuit. Attorneys from Opposing counsel: G. Robert Blakey, Notre of the American Bar Association’s Code of the White House Counsel’s Office asked me Dame Law School, Notre Dame, IN 46556; Professional Responsibility calls for ‘‘every to interview for the position. I was inter- Tel.: (219) 231–6371. lawyer, regardless of professional promi- 19. Legal Activities: Describe the most sig- viewed once by two White House attorneys. I nence or professional workload, to find some was later informed that I was likely to be nificant legal activities you have pursued, time to participate in serving the disadvan- including significant litigation which did not nominated for the position. I was nominated taged.’’ Describe what you have done to ful- on May 9, 2001. progress to trial or legal matters that did fill these responsibilities, listing specific in- not involve litigation. Describe the nature of 4. Has anyone involved in the process of se- stances and the amount of time devoted to lecting you as a judicial nominee discussed your participation in this question, please each. omit any information protected by the attor- with you any specific case, legal issue or The bulk of my legal career has been in the question in a manner that could reasonably ney-client privilege (unless the privilege has public sector, but I have consistently de- been waived). be interpreted as asking how you would rule voted time to pro bono obligations while on such case, issue, or question? If so, please In addition to the litigation described working in private practice. During my first above, my practice has included preparing explain fully. stint in private practice (at Wachtell, No. for civil litigation that did not proceed to Lipton), I accepted an appointment to rep- trial or that was settled during trial; han- 5. Please discuss your view on the fol- resent an incarcerated defendant who was lowing criticism involving ‘‘judicial activ- dling an international contract dispute that seeking habeas relief from his state convic- arose out of the privatization of oil fields ism’’: The role of the Federal judiciary with- tion. I wrote all appellate briefs and argued and refineries in a central Asian republic (I in the Federal government, and within soci- the case before the United States Court of and one of my partners represented our cli- ety generally, has become the subject of in- Appeals for the Second Circuit. See ent in the arbitration of that contract dis- creasing controversy in recent years. It has Campaneria v. Reid, 891 F.2d 1014 (2d Cir. pute, which was conducted under UNCITRAL become a target of both popular and aca- 1989). The amount of time devoted to this rules); advising clients conducting internal demic criticism that alleges that the judicial matter was approximately 300 hours. corporate investigations into possible viola- branch has usurped many of the prerogatives Since returning to private practice (at Gib- tions of federal criminal law; and briefing of other branches and levels of government. son Dunn), my pro bono activities have in- and/or arguing appeals in civil and criminal Some of the characteristics of this ‘‘judicial cluded: cases. activism’’ have been said to include: (a) a a. Writing an amicus curiae brief on behalf II. FINANCIAL DATA AND CONFLICT OF tendency by the judiciary toward problem- INTEREST (PUBLIC) of the U.S. Conference of Mayors, the Na- solution rather than grievance-resolution; 1. List sources, amounts and dates of all tional League of Cities and the National (b) a tendency by the judiciary to employ the anticipated receipts from deferred income Governors’ Association in City of Chicago v. individual plaintiff as a vehicle for the impo- arrangements, stock, options, uncompleted Morales, 527 U.S. 41 (1997). Morales was a sition of far-reaching orders extending to contracts and other future benefits which constitutional challenge to a Chicago ordi- broad classes of individuals; (c) a tendency you expect to be derived from previous busi- nance that made it unlawful for members of by the judiciary to impose broad, affirmative ness relationships, professional services, street gangs to loiter in public spaces. The duties upon governments and society; (d) a firm memberships, former employers, cli- amicus brief, to which I devoted approxi- tendency by the judiciary toward loosening ents, or customers. Please describe the ar- mately 120 hours, supported the arguments jurisdictional requirements such as standing rangements you have made to be com- made by the City of Chicago. and ripeness; and (e) a tendency by the judi- b. Representing a death row inmate in a pensated in the future for any financial or ciary to impose itself upon other institutions challenge to his conviction and sentence. See business interest. in the manner of an administrator with con- Strickler v. Greene, 527 U.S. 263 (1999). I was I do not expect to have any deferred in- tinuing oversight responsibilities. the principal draftsman of petitioner’s Su- come or other benefits from any previous In my view, federal judges may decide only preme Court briefs on the merits and argued business relationships or employment. If I concrete cases or controversies that properly the case on his behalf in the Supreme Court. am confirmed, my law firm has agreed to pay come to them; they may not ‘‘make law’’ or I devoted approximately 450 hours to this out my capital, together with my annualized reach beyond the facts and circumstances of representation. share of the firm’s income for the current the particular case they must decide. That c. Representing the City of Annapolis, year, in cash at the time I resign my part- limited judicial role flows from the text of Maryland in defending the City’s loitering nership to begin judicial service. the Constitution, the separation of powers ordinance—which prohibits loitering with 2. Explain how you will resolve any poten- inherent in our constitutional scheme, the the intent to engage in drug dealing—from tial conflict of interest, including the proce- federal-state balance, and the presumption constitutional attack. See N.A.A.C.P., Anne dure you will follow in determining these of validity that generally attaches to legisla- Arundel County Branch v. City of Annapolis, areas of concern. Identify the categories of tive actions. litigation and financial arrangements that Civ. No CCB–00–771 (D. Md). I have devoted are likely to present potential conflicts-of- approximately 120 hours to that representa- FINANCIAL STATEMENT NET WORTH interest during your initial service in the po- tion. In April 2001, after the district court Provide a complete, current financial net sition to which you have been nominated. issued a ruling invalidating the ordinance, worth statement which itemizes in detail all I will follow the dictates of the Code of Ju- the City of Annapolis determined not to fur- assets (including bank accounts, real estate, dicial Conduct and the provisions of applica- ther defend the constitutionality of the ordi- securities, trusts, investments, and other fi- ble recusal laws, such as 28 U.S.C. § 455. nance. nancial holdings) all liabilities (including 3. Do you have any plans, commitments, or 2. The American Bar Association’s Com- debts, mortgages, loans, and other financial agreements to pursue outside employment, mentary to its Code of Judicial Conduct obligations) of yourself, your spouse, and

VerDate Jan 31 2003 01:00 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.048 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2319 other immediate members of your house- er LLP, has agreed to pay my share of the Mr. HATCH. I respect the Senator, hold. firm’s capital and insurance reserve in cash anyway. ASSETS promptly after the resignation from the Mr. REID. I ask the distinguished partnership. The firm has also agreed to pay Cash on hand and in banks ...... $73K Senator from Utah, we are here. It is me, at the same time and also in cash, my U.S. Government securities—add now 10:30 at night. annualized share of the firm’s income for the schedule (savings bonds) ...... 12K We have an agenda with people who current year, computed on the basis of the Listed securities—add schedule ...... 0 per-share income earned by the firm during are going to be covering the floor for Unlisted securities—add schedule ...... 0 us. But I ask the Senator, because we Accounts and notes receivable: ...... 0 the year 2000. IX. CERTIFICATION. have other people on the floor: How Due from relatives and friends ...... 0 I certify that all information given above much longer does he think he is going Due from others ...... 0 (including information pertaining to my Doubtful ...... 0 to want to take tonight on this matter, spouse and minor or dependent children, if Real estate owned—add schedule 1105 just so my colleagues over here know. any) is accurate, true, and complete to the Prince St., Alex., VA ...... 575K Obviously the Senator knows. He best of my knowledge and belief, and that Real estate mortgages receivable ...... 0 any information not reported was withheld knows a little more than I know be- Autos and other personal property .... 120 because it met applicable statutory provi- cause it seems to be thinning out a lit- Cash value—life insurance ...... 0 sions permitting non-disclosure. tle bit here. Can the Senator inform Other assets—itemize: ...... I further certify that earned income from the Senate—especially this Senator—as IRAs, 401(k), and KEOGH Plans ...... 164K outside employment and honoraria and the Total Assets ...... 824K to how much longer we are going to go acceptance of gifts which have been reported tonight? CONTINGENT LIABILITIES are in compliance with the provisions of 5 Mr. HATCH. I am not quite sure. I As endorser, comaker or guarantor ... 0 U.S.C. app. § 501 et. seq., 5 U.S.C. § 7353 and have a statement to make, and I want On leases or contracts ...... 0 Judicial Conference regulations. to get that in the RECORD. I would like Legal Claims ...... 0 Mr. REID. Will the Senator from Provision for Federal Income Tax ..... 0 to take any questions my colleagues Utah yield for a question? have on either side of the aisle. This is Other special debt ...... 0 Mr. SESSIONS. Will the Senator an important issue. So it is 10:30 at LIABILITIES yield? night. It is nothing to me. I am fight- Notes payable to banks—secured ...... 0 Mr. HATCH. Let me yield first to the ing for Miguel Estrada. Notes payable to banks—unsecured ... 0 distinguished Senator from Alabama Mr. REID. Will the Senator yield for Notes payable to relatives ...... 0 and then I will be happy to yield to my one final question? Notes payable to others ...... 0 friend from Nevada without losing my Accounts and bills due ...... 0 Mr. HATCH. Sure, without losing my Unpaid income tax ...... 0 right to the floor. right to the floor. Other unpaid tax and interest ...... 0 Mr. SESSIONS. I will ask the distin- Mr. REID. I understand the impor- Real estate mortgages payable— guished chairman of the Judiciary tance of this nomination. I know the schedule (schedule attached ...... 386K Committee, who has been involved in Senator believes I understand its im- Chattel mortgages and other liens these matters for so many years, aren’t portance. I am not in any way deni- payable ...... 0 we confusing here home State Sen- grating or trying to stop anyone from Other debts—itemize ...... ators’ objections with a filibuster? And DOJ TSP Loan ...... 19K speaking tonight. I only would ask if isn’t it true that, to this very day, real- the Senator would give us some general Mastercard ...... 10K ly earlier in this year, the Democratic American Express ...... 10K idea as to whether we are going to be Student Loan ...... 21K Senators on the Judiciary Committee here all night or another hour or two Total liabilities ...... 446K virtually demanded home State Sen- hours. Can the Senator give us any in- Net Worth ...... 378K ators be given even more power to dication? Total liabilities and net worth ...... block nominees than in the past? Mr. HATCH. I am prepared to be here GENERAL INFORMATION Mr. HATCH. I believe there have been all night, if that is what it takes. I do Are any assets pledged? (Add sched- some demands that have been far in ex- not want to foreclose any questions ule.) ...... 0 cess of what has been allowed by their from my colleagues. I don’t know how Are you defendant in any suits or own chairmen in the past, especially many questions there will be. But I am legal actions? ...... 0 Chairman KENNEDY and Chairman here to answer them, and I would like Have you ever taken bankruptcy? ..... No BIDEN. I think the Senator states it to make a statement for the RECORD MIGUEL A. ESTRADA MORTGAGES correctly. before we finish. I will try to expedite 1. Temple-Island Mortgage Corporation Mr. SESSIONS. My second question, that, if I can. (first mortgage on residence) $256,000. Mr. President, would be: The point is The PRESIDING OFFICER. The Sen- 2. Bank of America (line of credit secured there has been no movement from the ator from Oklahoma. by second mortgage on residence) $130,000, other side to change the basic tradi- Mr. INHOFE. Mr. President, I have Total $386,000. tional view of the power of home State been listening to these brilliant legal FINANCIAL DISCLOSURE REPORT FOR Senators to object. In fact, they affirm NOMINEES minds asking questions. I. POSITIONS. Partner, Gibson, Dunn & that and insist they should be given Mr. REID. Mr. President, does the Crutcher LLP; Trustee, Supreme Court His- that, and even expand it. Senator from Oklahoma have the floor? torical Society; Director, Center for Commu- Mr. HATCH. I think the Senator is Mr. INHOFE. Yes. nity Interest. correct. The PRESIDING OFFICER. The Sen- II. AGREEMENTS. 2001 Termination of I said I would yield to the distin- ator from Utah has the floor. Partnership Agreement. guished Senator from Nevada. Mr. HATCH. I yield for a question. III. NON-INVESTMENT INCOME 1999 Gib- Mr. REID. Without the Senator los- Mr. INHOFE. I thank the Senator son, Dunn & Crutcher LLP, $301,000; 2000 Gib- ing his right to the floor, I attempted from Utah. son, Dunn & Crutcher LLP $510,000; 1999 De- 20 minutes or so ago to add a little lev- I was trying to get across with just a partment of Justice (attorney); 2000 Depart- ity to this debate, indicating the dis- prelude, if you will accept that. There ment of Justice (attorney). are several of us here who are not at- VI. LIABILITIES—American Express, tinguished Senator from Utah is aware Citibank MasterCard, Alabama Comm’n on I attempted to add a little levity by torneys and who are certainly not Higher Education. suggesting you had joined in the fili- great legal minds. As we look at this, I VII. Page 1 INVESTMENTS and TRUSTS— buster. That didn’t go over. It wasn’t recall, though, another hearing, the or- income, value, transactions: Solomon Smith very funny, as I learned very quickly. igin of filibuster dealing back with the Barney Money Market Fund; Citibank Ac- Mr. HATCH. It wasn’t very funny, days of civil rights. And what comes to counts America’s First Federal; Credit Union but I appreciate the Senator trying to my mind is, as I have been listening to Savings Accts; Vanguard 500 Index Fund; interject levity. We could use maybe a these questions being asked and the ob- Dreyfus S&P 500 Index Fund; SouthTrust jections to Miguel Estrada by the mi- Bank Account. little bit around here, but this is a VIII. ADDITIONAL INFORMATION OR tough issue and we are all upset. nority—correct me if I am wrong—that EXPLANATIONS Mr. REID. It should be a little more the filibuster was created and main- Part II (Agreements): In the event I am con- humorous, obviously, than I was able tained for some civil rights legislation firmed, my law firm, Gibson, Dunn & Crutch- to provide. in the first place. Is that correct?

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.050 S12PT2 S2320 CONGRESSIONAL RECORD — SENATE February 12, 2003 Mr. HATCH. That is generally the Mr. GRAHAM of South Carolina. It is Mr. GRAHAM of South Carolina. Will viewpoint around here. my understanding one of the attacks is the Senator agree that for any conserv- Mr. INHOFE. Will the Senator share Mr. Estrada is in fact a rightwing ative to be able to work for the Clinton with those of us who are not attorneys ideolog who may use his political phi- administration and do well shows a tre- the origin for filibuster? losophy to shape the law in an unfair mendous amount of tolerance? Mr. HATCH. The filibuster comes way. Is that correct? Mr. HATCH. I certainly agree with from the word filibustero, which is Mr. HATCH. I suspect that is what is that. Mr. Waxman, who is a highly re- Spanish. It is a word for pirating, by worrying people on the other side. garded and respected lawyer, was the taking improper control, in this case of Mr. GRAHAM of South Carolina. Is Solicitor General—one of them. Mr. the Senate. I hope I am saying that my understanding correct that it is not Estrada worked under three Democrat right. I think I am pretty close. only the Senator’s suspicion, but they Solicitors General who saw his work Mr. INHOFE. I thank the Senator. have actually said that? People on the product. Mr. Waxman is highly re- The PRESIDING OFFICER. The Sen- other side have said one of the con- spected. I doubt he would put his rep- ator from Missouri. cerns they have about this gentleman utation on the line, as he did, by Mr. TALENT. Mr. President, will the is they are suspicious of his ideology vouching for Mr. Estrada if he were not Senator yield for a question? and that he may be inflexible in apply- absolutely convinced he would be a fair Mr. HATCH. Without losing my right ing the law in a fair way. Is that cor- and unbiased Federal judge. That is to the floor. rect? none other than Seth Waxman, the So- Mr. TALENT. I wonder if my col- Mr. HATCH. My colleagues on the licitor General in the Clinton adminis- league read the statement by former other side who don’t know Miguel tration. Congressman Herman Badillo from Estrada—there is only one person who I don’t understand all this argument New York who called the opposition to has given their criticism, and that was by the other side and why a filibuster block Mr. Estrada ‘‘grandstanding’’ Professor Bender from Arizona State of this highly qualified person who has and ‘‘this treatment of Mr. Estrada is University who I think has more than the highest rating of the American Bar demeaning and unfair not only to the been rebutted here on the floor. Association, their gold standard. I have Mr. GRAHAM of South Carolina. nominee but the confirmation process to say I have to admit it is a good Along those lines, if the Senator will and the integrity of the Senate.’’ standard at this point, too. They are continue to yield. I wonder if my colleague believes doing a fair job. It isn’t just because of Mr. HATCH. Could I take a moment that is a pretty remarkable statement Mr. Estrada I say that. I have been say- to read a few paragraphs from the coming from a former Democratic ing it for a couple of years. But one White House letter responding to the Member of Congress about the opposi- time I wasn’t very pleased with it. Senate Democrats’ continuing action tion being mounted to a fellow His- Mr. ENZI. Mr. President, will the here on the notion that Mr. Estrada did panic. Senator from Utah yield for a ques- not answer questions of the Members? Mr. HATCH. I did read the quote in tion? When asked by Senator EDWARDS the Wall Street Journal, and I thought Mr. HATCH. Without losing my right it was a tremendous article. It was about judicial review, Mr. Estrada an- swered: to the floor. written by the former Democratic Con- Mr. ENZI. In the Senator’s 27 years gressman from the State of New York. Courts take the laws that have been passed by you and give you the benefit of under- serving in this body, has the Senator I was privileged to hear Congressman standing that you take the same oath that seen anything that has progressed on a Badillo the other day at our press con- they do to uphold the Constitution. And, judicial nomination the way this nomi- ference when the Hispanic community therefore, they take the laws with the pre- nation has, and does he have any con- came together to decry what is going sumption that they are constitutional. It is cern this may be setting a precedent? on against Miguel Estrada. He made the affirmative burden of the plaintiff to Mr. HATCH. There is no question one of the most profound and strong show that you have gone beyond your oath. that this is setting a precedent. In re- statements at that press conference. I If they come into court, then it is appro- sponse to my colleague’s very impor- have nothing but respect for him. I re- priate for courts to undertake to listen to tant question, this is a very terrible the legal arguments, which is that the legis- spected him when he was in Congress, lature went beyond its role as a legislature precedent because if the Democrats and he certainly has been speaking up, and invaded the Constitution. succeed in filibustering the first His- and he is a Democrat. That is a deliberative and very im- panic judge nominee to the Circuit But he is not the only Democrat. portant answer to questions they claim Court of Appeals of the District of Co- Seth Waxman is one of the all time he never answered. lumbia—the first filibuster in the his- great Solicitors General—wonderful Mr. GRAHAM of South Carolina. Will tory of the country, a true filibuster, Democrat attorney who I happen to the Senator continue to yield for one then Katy bar the door. I remember have a lot of respect for. He has spoken more question? there were some on our side who want- up for Miguel Estrada as have so many Mr. HATCH. I would be delighted to, ed to filibuster, and cooler minds took other colleagues at the Solicitor Gen- without losing my right to the floor. over and said, We are not going to do eral’s Office. But Mr. Badillo very firm- Mr. GRAHAM of South Carolina. that. First of all, we think it is wrong. ly feels this is an injustice, that it is a Would the Senator agree with me that Second, we think it is unconstitu- double standard, that this is prejudice if one of the really serious questions tional to do it. against this nominee. I can’t speak for about whether or not this man is a Third, it isn’t fair to the President, him, but this is what I got out of his rightwing ideolog who couldn’t shape to the Senate, to the nominee, nor to remarks and out of his article; and the law in a proper fashion—that any the process. It isn’t fair. And that is that there is no justification whatso- rightwing ideolog would have a very the position we took. ever in fighting against Miguel difficult time working for the Clinton And now we have what I consider to Estrada, and absolutely no justifica- administration? Would you agree with be a very unfair process, for no good tion in conducting the first filibuster me about that concept? reason, because I have not heard one in the history of the country against a Mr. HATCH. That was my experience substantive argument against Miguel circuit court of appeals nominee. with the Clinton administration. I Estrada, not one in all of this debate, I have to say I was very impressed don’t know of any rightwing other than: We didn’t like his answers. with his article, and I appreciate the ideolog—— Well, that is tough. Vote against him if Senator reading from it. Mr. GRAHAM of South Carolina. Did you don’t like his answers. That is The PRESIDING OFFICER. The Sen- this gentleman in fact work for the your right. Some of our people voted ator from South Carolina. Clinton administration? against some of their judges because Mr. GRAHAM of South Carolina. Mr. Mr. HATCH. He did, indeed, and he they did not like their answers. That is President, will the Senator yield for a received rave reviews for his work at OK. It is honorable. question? the Solicitor General’s Office in the But do not filibuster a circuit court Mr. HATCH. I am delighted to, with- Clinton administration by a Democrat of appeals nominee or a Federal judge out losing my right to the floor. Solicitor General. of any stature.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.193 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2321 Mr. SANTORUM. Mr. President, will acted reprehensibly under the cir- duced any information or any informa- the Senator from Utah yield for a ques- cumstances. tion has been produced that shows that tion? Mr. SANTORUM. So, Mr. President, his principles or ideology are outside of Mr. HATCH. Without losing my right if the Senator will yield for just a the mainstream? Has any evidence to the floor. clarifying question. been produced to that effect? Mr. SANTORUM. Mr. President, has Mr. HATCH. Without losing my right Mr. HATCH. Absolutely none. And any Member of the Senate questioned to the floor. that is one reason it is a fishing expedi- the nominee’s intelligence? Mr. SANTORUM. What I understand tion—because they want to see if they Mr. HATCH. Not one. Nobody could. the Senator from Utah is saying is that can find something for which they can We know how bright he is. on every quality by which judicial criticize him. But not only did they Mr. SANTORUM. And has any person nominees are judged traditionally here wait 615 days to hold a hearing—which questioned his temperament? in the Senate, on every single one of they controlled, they chaired, they Mr. HATCH. Yes, Paul Bender has. those qualities, he has either had no questioned—but they also allowed for But he—— argument from the other side that he written questions afterwards. And only Mr. SANTORUM. Has any Member of does not meet those standards or, in two of them—the Senator from Illinois the Senate questioned his tempera- many cases, he has exceeded those and the Senator from Massachusetts— ment? standards, except in one case with re- prepared written questions for him, Mr. HATCH. There have been some spect to judicial temperament. In that which he answered, which we put into who have been concerned about that case, we have the person who makes the RECORD today. because of Mr. Bender’s comments. But those claims having written contem- Frankly, I do not know of anyone Mr. Bender, when he was his supervisor poraneous reports that rebut his own who could point out any defect in this at the Department of Justice, gave him later testimony, and the supervisor re- man’s character and his ability to be a rave reviews in all categories. butting that testimony. So other than great circuit court of appeals judge. Now, I think the contemporaneous that one case, on all of the other quali- Mr. SCHUMER. Will my colleague rave reviews, which Mr. Bender tries to ties by which we are to judge a can- yield? get out of now, should take precedence didate here, there is no argument Mr. INHOFE. Will my colleague over his partisan comments made long about his qualifications? yield? after the fact. Mr. HATCH. That is right. By the Mr. HATCH. To further answer that Mr. SANTORUM. Will the Senator way, when the ABA does its review, it question, I would like to read from the yield for a further question? is looking for every one of those quali- letter the White House just sent up Mr. HATCH. Without losing my right ties. It is looking for people who would here today: to the floor. rebut those qualities. It is looking for In some recent hearings, including Mr. Mr. SANTORUM. I ask the Senator people who both support him and are Estrada’s, Senator Schumer has asked that from Utah, what is generally the stand- opposed to him. It is looking for people nominees identify particular Supreme Court ard by which the Senate is to analyze who say he does not have the right cases of the last few decades—— nominees and pass judgment on them? temperament, or he does not have the I think the correct reference was to What are the qualities and characteris- right intelligence, or he does not have the last 40 years, although I have heard tics of a nominee that are the tradi- the right integrity, or he does not have Senator after Senator on the other side tional areas by which individuals who the right health. The ABA goes into all talk about the whole jurisprudence of have been nominated are judged? of that. So does the administration. the country, even though the question Mr. HATCH. Well, for a Federal cir- And so do we as Senators if we want to. is referring to the last 40 years. But: cuit court nominee, it would be hon- In this particular case, virtually ev- In some recent hearings, including Mr. esty, integrity, temperament, physical erybody who worked with him gives Estrada’s, Senator Schumer has asked that capacity—or ability to work—but, in him high raves. nominees identify particular Supreme Court addition, an FBI report that is favor- Mr. SANTORUM. Mr. President, if cases of the last few decades with which they able, and an ABA rating, that isn’t nec- the Senator will yield for an additional disagree. But the problems with such a ques- essarily followed but, nonetheless, is question. tion and answer were well stated by Justice helpful if it is favorable. And in this Mr. HATCH. Without losing my right Stephen Breyer. case it is not only favorable, but it is to the floor. Of course, Justice Breyer is a Demo- the highest rating they could possibly Mr. SANTORUM. Given that he is crat, and he is now sitting on the Su- give. And there are other legitimate qualified on all of those grounds, one is preme Court. considerations, but all of them he has left with the possibility that he may be The White House letter goes on: passed. objected to because of his ideological As Justice Breyer put it, ‘‘Until [an issue] Mr. SANTORUM. Further, I guess the position. Has any comment been made comes up, I don’t really think it through question I have is, other than Mr. or any evidence been produced by any with the depth that it would require . . . so Bender’s comment, which came well Senator that his ideology is out of the often, when you decide a matter for real, in after the fact and does not comport mainstream of traditional jurispru- a court or elsewhere, it turns out to be very different after you’ve become informed and with his contemporaneous reports— dence in any of the activities in which think it through for real than what you other than that one particular state- he has been involved? would have said at a cocktail party answer- ment—of all the qualifications that are Mr. HATCH. I am not aware of any- ing a question.’’ traditionally used by Members of the one. I have heard remarks on the floor Senator Schumer also has asked nominees Senate to evaluate nominees for judi- by colleagues on the other side that how they would have ruled in particular Su- cial positions, circuit court positions, they are concerned he may not uphold preme Court cases. Again, a double standard has any Member of the Senate ques- all of their believed decisions. But he is being applied. The nominees of President tioned any of those qualities? has said he would uphold precedent, Clinton did not answer such questions. For Mr. HATCH. Not really. Not really. example, Richard Tallman, a nominee with that he would abide by the law as no prior judicial service who now serves on Not really, other than some who relied enunciated by the Supreme Court, and the Ninth Circuit, not only would not answer on Mr. Bender’s comments. And I that he would examine everything as how he would have ruled as a judge in Roe v. might add that Mr. Bender worked for thoroughly as he could, do the very Wade—but even how he would have ruled in Seth Waxman, who rebutted what Mr. best job he could to be fair. He has said Plessy v. Ferguson, the infamous case that Bender said, and put his reputation on exactly the right things you would upheld the discredited and shameful ‘‘sepa- the line as a Democrat former Solicitor want a circuit court nominee to say. rate but equal’’ doctrine. So, too, in the General, and speaks very favorably on Mr. SANTORUM. Mr. President, if hearing on President Clinton’s nomination of all of those issues with regard to Mr. the Senator would yield for an addi- Judges Barry and Fisher, Senator Smith asked whether the nominees would have Estrada. tional question, I would just ask that voted for a constitutional right to abortion I would certainly give much more to be clarified. Has the other side pro- before Roe v. Wade. Chairman Hatch inter- credibility to Mr. Waxman than I duced any evidence that, in the history rupted Senator Smith to say ‘‘that is not a would to Mr. Bender, who I think has of this nominee as a lawyer, he has pro- fair question to these two nominees because

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.196 S12PT2 S2322 CONGRESSIONAL RECORD — SENATE February 12, 2003 regardless of what happened pre-1973, they the court because not only has he ar- screening process, and she was ap- have to abide by what has happened post-1973 gued before the Supreme Court, he was pointed to the State trial bench. and the current precedents that the Supreme a clerk at the Supreme Court. He Mr. SANTORUM. Regular order. Court has.’’ knows how the Court works. He knows Mr. SCHUMER. My question is, did In other words, I corrected a member how it moves, thinks, and breathes. my good friend from Utah not say of my party on the committee for ask- Yet he is being mistreated here. Why about Judge Barkett: ing that question of a Clinton nominee. the double standard? I can only think I led the fight to oppose [Judge Rosemary I hate to say it, but Miguel Estrada of one, and that is, they don’t like Barkett’s] confirmation . . . because [her] has answered their questions. He just what they think his philosophy is. judicial records indicated she would be an hasn’t answered them the way they They don’t like the fact that a Repub- activist who would legislate from the bench? wanted because they haven’t been able lican President has supported him and Why is that any different than people to find any real defects in the answers has nominated him. They don’t like on this side opposing Miguel Estrada he has given. the fact that he is a Hispanic conserv- because he might be a judicial activist The PRESIDING OFFICER. The Sen- ative Republican. They are afraid that who would legislate from the bench? ator from Tennessee. because he is a Hispanic conservative Why is my colleague accusing some Mr. ALEXANDER. Mr. President, Republican, he might upset the balance on this side of being anti-Hispanic will the Senator from Utah yield for a on this court. And on this court, over when he opposed a Hispanic judge simi- question? 90 percent of the cases are unanimously larly rising through the ranks because Mr. HATCH. Without losing my right decided. he disagreed with her philosophy? to the floor. I can tell you, all of their fears are I yield to my colleague for an answer Mr. ALEXANDER. Is the Senator unjustified. They are incredible the to that question. from Utah aware that the following Su- way they are being made. And they Mr. HATCH. I am happy to have the preme Court Justices had no prior judi- are, most importantly, unfair criti- question from my dear colleague from cial experience: Harlan Fiske Stone, cisms—most importantly, unfair. That New York. No. 1, I didn’t know she was Louis Brandeis, Hugo Black, and Wil- is what bothers me. Why can’t we be Hispanic. That is irrelevant to me any- liam O. Douglas? fair to this Hispanic nominee who has way. I didn’t know that. And if she is, Mr. HATCH. All giants of the law and fought so hard to be part of the Amer- I didn’t know it until today. No. 2, I did none of whom had prior judicial experi- ican dream and has earned a right? read her judicial records. She was an ence. Why can’t we be fair to him? What is activist. I did vote against her. But Mr. ALEXANDER. Will the Senator wrong over here? What is wrong? there is a difference here: I voted. I al- yield for a further question? Not only is he a Hispanic nominee, a lowed you to have a vote. We had a Mr. HATCH. Yes. Republican, appointed by this Presi- vote, and she is now sitting on the Mr. ALEXANDER. Is the Senator dent, whom I can see some of my col- court. aware that Felix Frankfurter and Earl leagues don’t like. I can accept that. Mr. SCHUMER. Will my colleague Warren and Byron White and Lewis But Miguel Estrada is a person who yield for a further question? Powell and William Rehnquist and Ste- suffers from a handicap as well. He has Mr. HATCH. Sure. phen Breyer and Thurgood Marshall a speech impediment. And if you Mr. SCHUMER. That is not the ques- and Harry Blackmun and Warren Burg- watched the hearings, you could see tion I asked. er and Ruth Bader Ginsburg all had no that. Yet this young man has gone to Mr. HATCH. You asked me why this prior judicial experience before they the height of the profession in spite of is different from—wait, let me just fin- were appointed and confirmed to the those things. In spite of all the blocks, ish. U.S. Supreme Court? all the barriers, all the glass ceilings, Mr. SCHUMER. Will my colleague Mr. HATCH. The Senator is exactly all of the criticisms, he has lived the yield for an additional question? right. It just goes to prove how ridicu- American dream. He is an example to Mr. HATCH. I will yield in just a sec- lous the accusations are that some every young lawyer, not just Hispanic ond. Let me finish. have made against Miguel Estrada. young lawyers—especially to them— The PRESIDING OFFICER. Senators And it also goes to show that there is but every young lawyer of how you can will address through the Chair, not to a double standard with regard to this fulfill the American dream. each other. Hispanic nominee. I haven’t seen a glove laid on him by Mr. HATCH. Let me just finish here. Mr. ALEXANDER. Would the Sen- the other side. Yet they are still fili- You asked me why should this be any ator yield for one final question? bustering him. Why the double stand- different from Miguel Estrada. There is Mr. HATCH. Without losing my right ard? I think the Senator makes a tre- nobody who can say that Miguel to the floor. mendous set of points there. I am per- Estrada would legislate from the Mr. ALEXANDER. If the Senator sonally grateful for his participation. bench. There is nobody who has one would agree that all of those distin- Mr. ALEXANDER. I thank the Sen- ounce of information that would indi- guished men and women with no prior ator. cate he would be an activist judge. He judicial experience went on to become The PRESIDING OFFICER. The Sen- isn’t a judge. In fact, your side has ar- distinguished members of the U.S. Su- ator from New York. gued that because he doesn’t have judi- preme Court, then can the Senator help Mr. SCHUMER. Mr. President, will cial experience, he should not go on us understand why the Members of the my colleague from Utah yield for a this position—some have argued. I hope other side suddenly think it is not just question? it hasn’t been the distinguished Sen- important but disqualifying for some- Mr. HATCH. Without losing my right ator from New York with his great one who is nominated for a lower court to the floor. knowledge of the law. to have no judicial experience? Why is Mr. SCHUMER. My colleague from But there was a complete difference. this suddenly a new criterion when Utah has talked about how it is unfair The bottom line is this: Yes, I still many of the most distinguished jurists to block a conservative nominee who is think I was right on that particular in our country’s history have had a di- Hispanic. I would like to ask my col- vote. I may have been wrong, but I be- verse background of experience? Why is league a question about Judge Rose- lieved I was right. I did it sincerely. this suddenly a new standard for mary Barkett, a Hispanic woman, born But she did have a vote. And she did Miguel Estrada? in Mexico, who spent her early years pass, as I recall. She is now sitting as Mr. HATCH. The Senator really there before her parents immigrated to a judge. And I didn’t hold her up, nor raises the issue—that is why there is a the United States. At an early age, she did I filibuster her, nor did I stand on double standard—when all of these devoted herself to religious service and this floor and say she should not have great Supreme Court Justices and oth- took vows to become a nun, then a a chance for a vote, which is what your ers never had a day of judicial experi- schoolteacher, educating children in side—I should say, the Democrat side ence. I will submit Miguel Estrada has Florida, then became a very distin- in this Chamber—is doing. I think had more time in the judiciary than guished lawyer. After years in private there is a lot of difference, a world of any of them had before they came to practice, she underwent a rigorous difference, between my vote which was

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.198 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2323 cast sincerely. I have hardly voted Mr. INHOFE. One last question. You cluded by that record there was judi- against any judges since I have been have answered it already, and this is cial activism? Is there any record that here. I have been one of the strongest not whether or not we want to vote for would lead any Member on the other supporters of the Federal judiciary, if or against Miguel Estrada, but does he side to suggest that Miguel Estrada not the strongest supporter in this deserve a vote, a public vote, on the would be a judicial activist? Chamber, ever since I have been here. floor of the Senate? Mr. HATCH. Of course, he is not a I can say this: I still believe my vote Mr. HATCH. Based upon the past his- judge. Rosemary Barkett was a judge was right. If it was wrong, I apologize, tory of this body, he deserves a vote. and had written a number of legal opin- but I didn’t hold her up. I didn’t fili- He is not getting it right now because ions. Some of them I thought were buster her. I made sure she had a vote. of a filibuster for the first time in his- whacko and, frankly, were. And she got one, and she sits on the tory. I have to say I decry that. That is Mr. DURBIN. Will the Senator yield court today. not fair. It is a double standard. It is for a question? I can’t ask a question, I guess, of the not right. Mr. HATCH. I am still answering the Senator, but I will just ask him to The PRESIDING OFFICER. The Sen- question of the Senator from Pennsyl- think it through. There is really a dif- ator from Minnesota is recognized. vania. ference between Rosemary Barkett’s Mr. COLEMAN. Will the Senator Mr. DURBIN. I will bet you are. handling and Mr. Estrada’s. He is not yield for a question? Mr. SANTORUM. Will the Senator even getting a chance for a vote. She Mr. HATCH. Yes, without losing my yield for an additional question? did get her chance for a vote. I was one right to the floor. Mr. HATCH. Yes, without losing my who helped her to get it. Mr. COLEMAN. Mr. President, I was right to the floor. Mr. SCHUMER. Will my colleague an urban mayor of a vibrant, diverse Mr. SANTORUM. Is there anything yield for an additional question? community, including Chicanos, Salva- in Mr. Estrada’s background that Mr. HATCH. Without losing my right dorans, and Puerto Ricans. Is it true would give you the opinion he would be to the floor. that Miguel Estrada was attacked by a judicial activist on the court? Mr. SCHUMER. Now that the Sen- Democratic Hispanic Members of the Mr. HATCH. Not any. In fact, even ator from Utah knows that Judge House as being Hispanic in name only? the Democrats who have known him Barkett is Hispanic, would he in any Mr. HATCH. Well, in essence, because have been praising him and have sup- way characterize his own action as he was basically accused of not being ported him. I might add that I don’t anti-Hispanic? Hispanic enough. I believe he was ac- think you would get better support Mr. HATCH. No. Nor am I character- cused of being Hispanic in name only. than Ron Klain. There should not be a izing yours that way. I have character- They even said he didn’t give back Democrat on that side who doesn’t be- ized it as anti-conservative Hispanic enough to the community, even though lieve he is an honest lawyer. There Republican, which is different. this man worked his guts out to get to should not be a Democrat on that side The PRESIDING OFFICER. The Sen- where he is as a Hispanic lawyer in this who doesn’t accept Seth Waxman as a ators are advised not to address each country and deserves credit for it, and great lawyer, or one who doesn’t be- other in the first person. he is an idol and will be an idol to a lot lieve Walter Dellinger is an exceed- The Senator from Oklahoma is recog- of young people who want to do the ingly fine law professor, lawyer, and nized. same. practicing attorney. There should not Mr. INHOFE. Will the Senator yield Mr. COLEMAN. Will the Senator be a Democrat who should disagree for a question? yield for one more question? with the former African-American So- Mr. HATCH. Yes, without losing my Mr. HATCH. Yes, without losing my licitor General of the United States. right to the floor. right to the floor. I want to say this. I don’t see any Mr. INHOFE. It is a sincere last ques- Mr. COLEMAN. Is it true that Miguel comparison with Rosemary Barkett at tion. It is very important because I Estrada—we have heard this before— all. This man is not a judge. In accord- just got a phone call that I am going to came here as a teenager, learned to ance with the double standard, it has be asked a question. First of all, I want speak English, overcame a disability, been said he should not be a judge be- to inform the Senator from Utah that graduated with honors in college, grad- cause he has no judicial experience. We in Oklahoma, our fastest growing popu- uated with honors magna cum laude in just have proven there are all kinds of lation has been Hispanic for 25 years. I law school, was editor of the law re- Clinton judges who had no prior judi- used to be a commercial pilot in Mex- view, and he came back to public serv- cial experience. Yet we put them ico. I know Hispanics. ice? Is it true, then, that he is sup- through and they are serving well, as When I was the mayor of Tulsa, we ported by many Hispanic organiza- have literally hundreds of judges who appointed the first Hispanic commis- tions, really as a role model of the never had a day of judicial experience. sion anywhere in the Southwest. It is American dream? It is just unfair, plain unfair. still there today. Mr. HATCH. You should have heard The PRESIDING OFFICER. The Sen- Now, the question is this, and I am the LULAC press conference this week. ator from Illinois is recognized. going to be asked this question this It was truly remarkable. He was ac- Mr. DURBIN. Will the Senator yield weekend: Why was this Hispanic man, cused by his opponents of being very for a question? when nobody could question his quali- unfair. LULAC happens to be the oldest Mr. HATCH. Yes, without losing my fications, rejected? I have to answer Hispanic organization in the country. I right to the floor. this to the Hispanic commission of believe, if I am right, the head of Mr. DURBIN. I ask the Senator from Oklahoma Saturday. What shall I say? LULAC is a Democrat. I may be wrong. Utah, when the Senator was chairman Mr. HATCH. There is no legitimate He is outraged, by the way. With this of the Senate Judiciary Committee and reason. It is a double standard. It is un- double standard that is going forth refused a hearing and vote for Enrique fair. It is unfair to him and to our against Miguel Estrada, he is right to Moreno, who was rated well-qualified President, and he should be given at be outraged. for an appointment to the Fifth Circuit least a vote up or down. If my col- The PRESIDING OFFICER. The Sen- Court of Appeals, was the chairman of leagues want to vote against him, that ator from Pennsylvania is recognized. the committee, the Senator from Utah, is their privilege. I would find no fault Mr. SANTORUM. Will the Senator aware of the fact that Mr. Moreno was with that, even though I would dis- yield for a question? born in Juarez, Mexico, in the company agree. It is unfair to the process and to Mr. HATCH. Yes, without losing my clinic of a smelting plant where his fa- the Senate. right to the floor. ther was employed; when he was 2 What is going on here is that for the Mr. SANTORUM. Isn’t the difference years old, his family emigrated to El first time in history, a true filibuster is the Senator from New York suggested Paso, TX, where Mr. Moreno attended being waged against a nominee. It hap- about your comment about Judge school and his father worked as a car- pens to be the first Hispanic ever nomi- Barkett and the situation with Miguel penter, his mother as a seamstress; he nated to the Circuit Court of Appeals Estrada that Judge Barkett had an ex- left El Paso to attend undergraduate for the District of Columbia. tensive record to analyze and you con- and then law school at Harvard, and he

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.201 S12PT2 S2324 CONGRESSIONAL RECORD — SENATE February 12, 2003 practiced for 19 years? Was the Senator just like your chairman when he was As chairman, I had no choice other from Utah aware of that background chairman, Senator LEAHY, had prob- than to do that. I think the Senator when he would not give him an oppor- lems on his side with some who have knows that. That is why I believe the tunity for even a hearing before the always wanted to manipulate the sys- questions are very unfair to me. Senate Judiciary Committee, or a vote tem a little bit differently. But I was Now, I will admit, Miguel Estrada before that committee, or on the floor fair, and I do resent anybody implying was given a hearing by the Democrats. of the Senate? that I was not fair. Senator SCHUMER presided over it, and Mr. HATCH. Mr. President, I believe In the case of Enrique Moreno, he there was more than one Democratic the Senator is being very offensive. He would have had hearings had there Senator present. It was a fair hearing. normally is quite partisan but quite been consultation, which I am sure the I believe it was. It went from about 10 reasonable. He is being offensive be- distinguished Senator from Illinois in the morning to 5:30 at night, longer cause he keeps referring to me as deny- would be the first to raise if he was not than most hearings. They asked every ing him a vote in committee when, in consulted with regard to judges coming question they wanted to ask. fact, I have explained before that there from his State. I assumed the Democrats believed was no consultation. The Senators Mr. DURBIN. Will the Senator yield they were going to win the election and from Texas told me there was no con- for a question? therefore they would never have to sultation, which they demand on their Mr. HATCH. Without losing my right have Miguel Estrada come up for a vote side all the time, and which we demand to the floor. any time. When we won the election, Mr. DURBIN. I would like to ask the on our side all the time, which I de- suddenly I got a request for confiden- Senator from Utah this question: He manded of the Clinton administration, tial documents of the Solicitor Gen- has raised the issue of fairness when it and I demand of the Bush administra- eral. I should say the White House got comes to Hispanic nominees. that request the day before the hear- tion. Mr. HATCH. That is right, and I ing. He has had a hearing. He has had I think the Senator is being very un- wanted fairness when you asked ques- a vote in committee. He has come out fair by trying to imply that I delib- tions. erately kept Enrique Moreno, who may Mr. DURBIN. Let me finish the ques- of the committee. be all of these wonderful things, and I tion. He is now on the floor, and now we assume that he is—I cannot recall all Mr. HATCH. Well, finish it then. find this situation where for the first those details. I have respect for him; I Mr. DURBIN. The Senator suggested time in history, a circuit court of ap- have tremendous respect for him. I it was fair for two Republican Senators peals nominee is being denied a right would like to have seen him have a from Texas to block a man like to an up-or-down vote. That is abys- chance, had there been consultation. Enrique Moreno from even having a mal. And he just happens to be the first But I do respect the home State Sen- hearing because that was their right. Hispanic nominee to the Circuit Court ators, and I think I respect the Demo- Mr. HATCH. Is there a question of Appeals for the District of Columbia. crat home State Senators, too. there? I think it is wrong. I think it is unfair. I have not even talked about the Mr. DURBIN. The question is com- I think it is unfair to the President. It withholding of blue slips because that ing. Is it not the right of Senators to is unfair to him. It is unfair to the Sen- was not the issue. The issue was con- raise questions on the floor about ate. It is unfair to the Senate Judiciary sultation and, in this case, there was Miguel Estrada? Why is that unfair Committee. It is unfair, I think, to the zero, ‘‘nada’’ consultation. while the treatment of Enrique Moreno whole process. Mr. DURBIN. Will the Senator yield was fair? He did not even have a hear- Mr. DURBIN. Will the Senator yield for another question? ing. Miguel Estrada had a hearing, an for a question? The PRESIDING OFFICER. The Sen- opportunity to answer questions, and Mr. HATCH. Without losing my right ator from Utah has the floor. he refused to answer the questions. to the floor. Mr. HATCH. Wait a minute, I feel I How is this fair to Enrique Moreno and Mr. DURBIN. I ask this question in have been unfairly attacked by the unfair to Miguel Estrada? relation to Richard Paez, and I will not Senator, by someone who knows the Mr. HATCH. I will tell you again. go to the question of the cloture vote process and I think ought to be fair and How many times do I have to repeat it necessary to bring him to the floor, but I think normally is. for somebody who has been on the Ju- I ask the then-chairman of the Senate Mr. DURBIN. Will the Senator yield diciary Committee and ought to know? Judiciary Committee if it was fair to for a question? If there was not consultation, you Richard Paez, nominated by the Presi- Mr. HATCH. No. Look, as chairman, I would be the first to say: I am not dent, to the Ninth Circuit, well-quali- can only do certain things. I will tell going to let that person go. Or you fied by the ABA, to have waited 3 years you this, I put through, as ranking would be the first to criticize the ad- and then to have faced a motion to pro- member or chairman, 377 Clinton ministration. ceed on the floor which the Senator judges, the second most judges con- The PRESIDING OFFICER. The Sen- from Utah and a majority of the Re- firmed for a President in history. The ator is reminded not to say ‘‘you’’ in publicans voted against after this man highest confirmed happened to be the first person. had waited for 3 years for a vote? Was through President Reagan, and there Mr. HATCH. Let me say this to the that fair to Richard Paez? were 382, 5 more. I believe that I would Chair. I have answered it about three Mr. HATCH. There were plenty of have put through even more than times now. Let’s be fair about it. As reasons Richard Paez was held up by President Reagan or President Clinton chairman, I cannot do everything. All I people on our side. He had ruled in a had it not been for Democrat holds on can do is abide by the rules of the com- number of cases in ways that appeared the floor against other Democrat nomi- mittee, which are that there has to be to be, and I think was, in fact, activist nees. consultation, not phony requests for judging. Without my support, Richard Let me go further because—let’s be consultation. You have to at least con- Paez would not be sitting on the Ninth fair about it—President Reagan had 6 sult. They did not even consult. Circuit Court of Appeals. So, again, I years of his own party in control of the I wrote a letter to the then-counsel, feel impugned by the question because Senate, in the Senate Judiciary Com- bless his departed soul, Chuck Ruff, for without me going to bat for him, which mittee to help him get those 382 judges. whom I happened to care a great deal, I did, without me fighting for him on President Clinton had 6 years of the op- and there are very great reasons I do. the floor, which I did, without me giv- position party, and yet we gave him He was a great lawyer, and I got along ing him a vote, which I did—which you virtually the same number as the all- well with him. I said: You did not con- are not; I should say the Democratic time champion, President Reagan. sult and they did not. He basically ad- side is not—he would not be sitting on Mr. DURBIN. Will the Senator yield? mitted it. Those two Senators were the Ninth Circuit Court of Appeals, and Mr. HATCH. I think my record shows well within their rights to say: We are he knows it and you know it—every I have not only been fair, I have bent not going to have him if we are not Democrat on the other side knows it. over backwards. I will acknowledge going to get consultation. And they Unfortunately, I want to talk person- that I have had problems on my side, were within their rights. ally to my colleagues. I will do it

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.204 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2325 through the mechanism of the Chair. the end. Admittedly, I wish it did not Mr. HATCH. Sure, without losing my But the fact is, had I not supported have to be delayed that long, but in all right to floor. him, he did not have a chance to be on honesty he was treated fairly in the Mr. SCHUMER. My friend from Utah the court because there were many end. I wish it had been earlier, but I just characterized the kinds of ques- people who believed he was an activist have to say I had my own qualms and tions, such as what are your opinions judge and, I have to confess, it was a my own questions and there were plen- of court cases, in an attempt to destroy close question. ty of reasons for that. There were peo- the career of Mr. Estrada. I would like I finally asked him to come visit ple all over California who did not to ask the Senator, you were just talk- with me. I sat down with him. He is a want him on the Ninth Circuit Court of ing about Judge Paez with Senator nice man. He is a good man. I have to Appeals, which is considered one of the SESSIONS. I ask the Senator, my friend admit, I felt he was an activist judge. most activist courts in the country, be- from Utah, if you recall some of the But I also felt he was a good man. cause of the ‘‘activist’’ decisions he questions Senator SESSIONS asked Mr. DURBIN. Will the Senator from was making in contradistinction to Richard Paez: In your opinion, what is Utah yield for a question? what California law really was. Prior the greatest Supreme Court decision in Mr. HATCH. Let me just finish. I told to each and every cloture vote in the American history? What is the worst him I would support him, and I did. Un- past which has been mentioned, the Supreme Court case? like this particular situation, he got Senators in the leadership on our side I would ask my colleague two ques- his vote and he passed with my sup- agreed to provide enough votes to in- tions. Was Senator SESSIONS attempt- port, which would never have happened voke cloture before the cloture peti- ing to destroy the career of Richard without it. tions were even filed on these Demo- Paez? Second, does he recall that in- Mr. DURBIN. Will the Senator yield crat nominees. stead of saying, I cannot answer that, for one final question? I promise I will I wish my colleagues on the other Senator Paez gave answers to both of not ask any further questions. side would agree to that precedent in those questions? Mr. HATCH. Without losing my right relation to the cloture votes they keep Mr. HATCH. Do you mean Judge to the floor. referring to. Would they assure us, as Paez? Mr. DURBIN. In the case of Richard we did them, that their side will pro- Mr. SCHUMER. Now Judge Paez. Paez, a Hispanic nominee who waited vide enough votes to invoke cloture be- Mr. HATCH. I believe it is within the over 4 years for a vote, was there ever fore we even file a cloture petition for power of each Senator on the Judiciary a time when Richard Paez refused to Estrada? That is what we did for Judge Committee to ask any question they answer questions you posed to him? Paez and now Judge Berzon. want to, no matter how stupid they Mr. HATCH. Not that I know of. So there was no real filibuster. You may be, and we have had plenty of stu- Mr. DURBIN. Was he evasive to you cannot call that a filibuster. We pro- pid questions from both sides, to be or did he try to in any way conceal his vided the necessary votes for them to honest with you. true background and true record? Was get votes on the floor, and they did get I do not think those are stupid ques- there ever an instance of that? their votes up or down. That is some- tions. Nor did I think the Senator’s Mr. HATCH. I have to say we did not thing Miguel Estrada is being denied questions when he basically asked try to destroy the man. We did not try right now. Miguel Estrada this question, can you to ask questions that were improper. Where is the fairness? I do not see think of any cases in the last 40 years We did not try to ask him his opinions any fairness in that. Why should he be with which you disagree with the Su- on how he was going to vote, all of denied the same privileges we gave to preme Court, nor do I find fault with which was done with Miguel Estrada, two people most every Republican dis- Mr. Estrada saying, no, I do not. You and he refused to answer those kind of agreed with, but nevertheless gave and I might. I could think of some questions, as he should have, as any- them a vote and they are now both sit- cases where we have passed laws. I was body who reads Lloyd Cutler would ting on the Ninth Circuit Court of Ap- the cosponsor of the Violence Against agree he should have. peals? Women Act. I did not like to see it I refer you to the President’s letter I have to tell you I had much angst overturned. On the other hand, I do un- which I am going to get to in a minute, and many upset stomachs that oc- derstand why it was and I do think it if my colleagues will allow me to, be- curred because of these two nominees, was a legitimate decision even though cause I want to make a statement be- but I voted for both. Without me, nei- I may have disagreed with it at the fore we finish this evening. In all hon- ther of them would have made the time. esty, Miguel has not been treated very Ninth Circuit Court of Appeals. It is Mr. SCHUMER. Will the Senator fairly and he is certainly not being just that simple. yield for another question? treated fairly by a filibuster—or should Mr. SESSIONS. Mr. President, to fol- Mr. HATCH. Without losing my right I say the ‘‘filibustero’’?—on the floor of low up on that question, I felt strongly to the floor. the Senate. about those nominees. I did not dislike Mr. SCHUMER. I am glad to see we Several Senators addressed the them personally, but I felt Paez and are not destroying careers by asking Chair. Berzon were activists. In fact, their those kinds of questions. The PRESIDING OFFICER. The Sen- writings clearly indicated that. Mr. HATCH. The only way we are de- ator from Alabama. Is it not a fact both Paez and Berzon, stroying careers, in all fairness, is by Mr. SESSIONS. Mr. President, with in separate opinions, have declared the having filibusters, not by having up-or- respect to the Paez and Berzon mat- longstanding ‘‘three strikes you’re down votes. If we distort the record of ters, I ask the chairman if he remem- out’’ law in California unconstitu- people, I think that—I think both sides bers I was one who questioned those tional? And I think one of them has have done that from time to time, I am nominees and he made a decision in been reversed already by the Supreme not saying deliberately, but neverthe- both of those cases to support them Court more than once? less there have been some times where after serious thought was given to it? Mr. HATCH. That is my recollection. I think the Senate has not acted in the Mr. HATCH. That is correct. And I have to say there are those who best form. Mr. SESSIONS. Is it not a fact the believe at least one, if not both, are ac- Mr. SCHUMER. Will the Senator Republican majority leader, TRENT tivists on the Ninth Circuit Court of yield for a question? LOTT, was the one who moved for clo- Appeals, which is virtually reversed Mr. HATCH. Yes, without losing my ture on Paez and Berzon? every time by the Supreme Court. It is right to the floor. Mr. HATCH. No question about it. the most reversed court of appeals in Mr. SCHUMER. I was pursuing this Mr. SESSIONS. The vote was 86 to 14, the country. line of questioning before, and then and 85 to 13 to invoke cloture, and I Mr. SCHUMER addressed the Chair. somehow we turned to other people to supported cloture even though I op- The PRESIDING OFFICER. Will the ask questions. But when I asked my posed the nominees? Senator yield for a question? colleague before how he could say this Mr. HATCH. That is correct. I have Mr. SCHUMER. I would like to ask about Judge Barkett, which is a rea- to say our side was fair to Mr. Paez in my friend from Utah a question. sonable thing for him to say—I do not

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.207 S12PT2 S2326 CONGRESSIONAL RECORD — SENATE February 12, 2003 begrudge him one bit. I do not think he won the election. He ought to have the where any Judiciary Committee has has an ounce of discrimination in his right to appoint the judges he wants. I been able to get them all through. body—how that was not anti-Hispanic, believe that with every fiber of my Frankly, I think you can go back in but opposing Judge Estrada was anti- being. I think that is what you get time and find more nominees left hang- Hispanic, he prefaced his remarks by when you get a President. ing when the Democrats controlled the saying, well, you are opposing not His- I didn’t think most of President Clin- committee at the end of the first Bush panics but conservative Hispanics; you ton’s judges—I would not have ap- administration than we left at the end are anti-conservative Hispanics—was pointed most of them if I were Presi- of the Clinton administration. You my friend from Utah being anti-liberal dent, but I was not President. And I could go through all the statistics and Hispanic when he opposed Judge submit I don’t believe the distin- criticize all you want and some criti- Barkett or was he simply ignoring the guished Senator from New York would cisms are justified. fact that she was Hispanic—he said he probably nominate the same judges as I wish we could have done a better did not even know—and instead oppos- President Bush, but President Bush de- job back then when I was on the Judi- ing her on her views and her record, serves the courtesy of having his ciary Committee. I give an illustra- something at least to this Senator is judges voted up and down, and that is tion. Tomorrow we have a markup on not only legitimate but an obligation a courtesy not being granted for the three circuit court of appeals nomi- to know about the views and the first time in history. nees. Some have indicated the Demo- record? So I would like to— When the minority mentions some crats will filibuster the markup. One The PRESIDING OFFICER. The Sen- cloture votes, we have no majority to person on that markup is Mr. Roberts, ator is reminded to address the Senator make sure it is invoked. There was no who has been sitting there for 11 years. through the Chair and in the third per- filibuster to make sure the nominees Mr. Paez sat there for 4 years, but he son. get a vote up and down. I would be got a vote and he is now sitting on the Mr. SCHUMER. I thank the Chair. happy if my friends on the other side Ninth Circuit Court of Appeals. Mr. So, Mr. President, I ask my col- would do the same for this fine nomi- Roberts has been sitting there for 11 league, the Senator from Utah, how nee, even if you disagree, and then vote years and has had three nominations one is any different from the other. no as some colleagues did. I voted yes by two different Presidents and is con- And isn’t, as it seems to most of us, on some of the most controversial sidered one of the two greatest appel- one the mirror image of the other, ei- judges because I start with the premise late lawyers in the country by Su- ther exactly blasphemous or equally that the President deserves support, preme Court Justices and many others. pure? whoever the President is, as long as the There is not anything you can find Mr. HATCH. I believe the Senators nominee is qualified. against him other than he is appointed can ask any questions they want. Like As much as I disagreed with Marsha by President Bush, a Republican Presi- I say, no matter how dumb or stupid or Berzon, she was very qualified. She was dent, and he may be conservative. I intelligent or alert they are—I have one of the top labor lawyers in the don’t know whether he is or is not, but seen both. In the case of Rosemary country. I admit, some of my col- he has been held up for 11 years Barkett, I confess I never knew she was leagues did not feel the same way as I through three nominations. Hispanic. And even if I did, it would be did. I led the fight to put her on the I have been informed that there may irrelevant to me. Nor have I accused bench. She personally came to me and be a filibuster in committee tomorrow. any Democrat of being prejudiced thanked me, as did Judge Paez. That would be the first filibuster that against Miguel Estrada because he is I would like to see the same fair I have seen in my 27 years on the Judi- Hispanic. I do not believe that. I do not treatment to Miguel Estrada. I don’t ciary Committee. If that is true—I can- believe there is a prejudiced bone over see it here. I think I made a pretty not believe it is true. I believe my col- there. I do not believe there is over good case it is not here and there is leagues would allow votes and allow here either. But I have said I believe nothing fair about this process. them to come to the floor in an orderly our colleagues on the other side are Mr. SCHUMER. If my colleague from fashion. I have to say that I hope that filibustering because Miguel Estrada is Utah will yield for a final question. is not true. If that is true, then I think a Hispanic Republican conservative Mr. HATCH. Without losing my right any reasonable person can conclude nominated by President Bush, a Repub- to the floor. that my colleagues on the other side lican President. Mr. SCHUMER. One judge nominated are not willing to do their constitu- I have also said I believe one of the to the same DC Circuit Court of Ap- tional duty to fill the courts with the reasons why there is such a vicious peals, Mr. SNYDER—a fine judge, well President’s nominees. fight to stop him from going on the respected, the highest ABA rating, I will stay here all night and debate Court of Appeals for the District of Co- same thing as Miguel Estrada in a lot my record with the Senator from New lumbia is because my colleagues on the of ways—never got a hearing, he never York or anyone else, but this has noth- other side believe he is conservative, got a vote. He is from DC. There were ing to do with the—— and believe he might tip the balance of no home State Senators to object to Mr. SCHUMER. Will the Senator the court. That is what we get when we him, unlike Mr. Moreno. yield? get a President. That is what we get I ask my colleague, why wasn’t it Mr. HATCH. I am answering a ques- when we vote. very unfair not to let Mr. SNYDER have tion. If my colleagues on the other side a vote on the very same circuit to The PRESIDING OFFICER. The Sen- disagree with Miguel Estrada, you have which we are debating Miguel ator from Utah has the floor. every right to vote against him. I Estrada’s entrance? Mr. HATCH. I will stay all night to think you shouldn’t. There is no reason Mr. HATCH. I cannot answer that debate my record in comparison to any at all. I don’t see one substantive rea- other than to say I wish we could have. Democratic record. That has nothing son so far, advanced by the minority, He was not named for the 11th seat on to do with whether or not Miguel why he shouldn’t sit on the court. Cer- the Circuit Court of Appeals for the Estrada should be confirmed. The only tainly, the fact he has no judicial expe- District of Columbia, in contrast to thing that has to do with is whether we rience in the eyes of the Democrats, Mr. Estrada who was nominated for the vote. And I think it would be very un- that is not a valid reason. ninth seat. There is a real difference fair not to vote up or down on Miguel Since we are talking about things I because there was a question whether Estrada. may have said about Clinton nominees, the 11th and 12th seats at that time The PRESIDING OFFICER (Mr. I have been in on hundreds, if not thou- should have been filled. But the ninth SUNUNU). The Senator from New York. sands, of judges since I have been in seat certainly should be filled, and ev- Mr. SCHUMER. I ask my final ques- the Senate. Let me remind the Senator eryone I know agrees with that, includ- tion. I have so many but I know the from New York what I said prior to the ing people on the Democrat side. hour is late. cloture vote on one Clinton nominee. I I wish I could have gotten them all Mr. HATCH. I add one last thing on said: I personally do not want to fili- through, to be honest. To also be hon- that. I cannot see any reason for this buster Federal judges. The President est, I don’t know of an end of session action against Miguel Estrada unless,

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.210 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2327 of course, the opposition to Mr. the first time I recall a filibuster in the wretched thing to do, filibuster a Estrada, based upon what I have been committee. If that is so, then it is clear judge. It is the first time in history. If hearing tonight, is really retribution that we have the politics of mass ob- they want to filibuster some judges, for perceived past wrongs perpetrated struction—which politics were sug- why would they pick on the first His- against Clinton nominees when I was, gested by two very ultraliberal law panic ever nominated to the Circuit in fact, one of the best assets you had professors at a Democrat retreat in Court of Appeals for the District of Co- in getting nominees through. I took a 2001. If that is true, then this is all part lumbia, a man who suffers from a dis- lot of criticism from the conservative of the game, to slow down everything ability yet rose to the top of his profes- right who I told to get lost, I have to in the judiciary no matter how many sion. He came up the hard way. He ful- say, in contrast to what I think is the emergencies we have, and we have filled the American dream, a man who liberal left who seem to have lockjaw plenty, and to stop President Bush is an example to every young Hispanic control over my colleagues on the from having his judges confirmed. person in this country, and to me. He is other side. I don’t think it is fair. I don’t think an example to me, and I think every- I yield for a question as long as I anybody else who watches it thinks it body in this body. don’t lose my right to the floor. is fair. I call upon my good friends to Why wouldn’t we let this fellow have Mr. SCHUMER. The final question in be fair. an up-or-down vote like we always did? relation to the hearing tomorrow, I have to say, I like everybody in this We always made sure that, regardless would the chairman of the committee, body. I care for everybody in this body. of the reason for a cloture vote, we the Senator from Utah, just give us 1 I care for my friend from New York and made sure that cloture was invoked day of questions for Mr. Roberts? As he knows it. I know he cares for me. and a vote up or down occurred. the Senator well knows, we had an un- But it is time to wrap it up and say, I have to say, I think there is an ele- precedented three court of appeals look, you have had your shot. And ment of unfairness here that I have not nominees before us in 1 day—all three knowing you, you always take your seen in my 27 years in the Senate. It is controversial, all three very erudite. shot. I should not be talking to you a shame that it is happening against We never had that before. We took all personally, I acknowledge to the Chair. the first Hispanic ever nominated to day. My friend from New York is not known the Circuit Court of Appeals for the To his credit, our chairman waited for shyness, but he is known as a fair District of Columbia, who has not had until 9:30 but that is when the ques- person and he is known as a good law- a glove laid on him. And because they tions finished with Mr. Sutton and one yer, at least by me. I am asking him to can’t find anything wrong, they want of the reasons many Members find dif- help be a leader on that committee. I to go on fishing expeditions long after ficulty voting on Judge Roberts, who is am asking the distinguished Senator they held their hearing, and then try to a brilliant man. I would just like to from New York and others to be lead- justify this holdup and this filibuster ask some questions. We have not had a ers on this committee, to help us do for those reasons. It is unbelievable to chance to ask questions. me. I ask my colleague, if you give us 1 our job, to help fill these courts. Yes, you may not like him. My col- Look, I made this point before and I day of hearings on Judge Roberts, we am going to make it one more time and would agree to vote the very next day. leagues on the other side might not I hope everybody in America watches Would that be acceptable to the Sen- like the nominees of President Bush this. The Senate Democrats held a re- ator? any more than we liked the nominees Mr. HATCH. Of course not. Because of President Clinton. But I put them treat. They can’t deny this. It has been we had a full day of hearings. Mr. Rob- through. Like I say, President Clinton, reported thoroughly. They were given erts was there, Mr. Sutton was there, he would have been the all-time cham- suggestions by at least two very liberal Justice Cook was there. We went from pion in confirmation had it not been law professors. Once President Bush be- 9:30 that morning to 9:30 at night, and for Democratic holds on your side. So I came elected, these law professors, I was prepared to stay all night if I had think we were fair. I would like you to wanting to promote only their ide- to. Any Senator could have come and be fair to our people. ology, suggested that, No. 1, bottle up asked any questions they wanted. If there are no further questions, I the nominees in committee. If we have Many Senators asked all the questions would like to make a statement. a filibuster tomorrow, they are ful- they wanted to at that time. After- The PRESIDING OFFICER. The Sen- filling that part of their suggestions of wards we kept the record open for Sen- ator from Alabama. mass obstruction. We have a filibuster now here on the ators to read and review the record and Mr. SESSIONS. Mr. President, I ask floor, but I will get to that. Then they submit any written questions that they the Senator to yield for one question. Mr. HATCH. Without losing my right said: If you can’t bottle them up in wanted. We have had 2 weeks to do to the floor. committee, then inject ideology into that. There comes a time when you have to Mr. SESSIONS. I say to the Senator, the confirmation process, and that is say let’s treat these people fairly. I know in the heat of this debate some exactly what has happened. Some of I know there is no reason in the on the other side have seemingly ques- the Senators on the other side have de- world to hold up Mr. Roberts or the tioned the fairness of your leadership. I manded to know the ideology of the other two either. The fact that my col- know they have not had the oppor- nominees, as if that is relevant. And leagues spend all their time—not all tunity to be in Republican conference every nominee, and especially Miguel their time but enough of their time in- when you have been absolutely con- Estrada, if you read his answers to terrogating Mr. Sutton, they still in- sistent with the views you expressed questions, has said we will abide by terrogated Mr. Roberts and Justice here on the floor to the Republicans prior precedent. We will observe the Cook. I think we should proceed and I who may have had different views. principle of stare decisis. We will rule think it is fair to proceed. I think the Would you share with us what you have in accordance with the law and with Senator said it right when he said he is advised Republicans in meetings about the rule of law. So there is no reason to a distinguished appellate lawyer, one of the impropriety of filibusters and how inject ideology because they said they the best in the history of the country. you have been consistent in that and would put their own personal beliefs I don’t see any reason for the delays in other issues that arise on matters here aside. Miguel Estrada said that on nu- these matters. today? merous occasions in response to ques- I was open, as I have always been, to Mr. HATCH. I thank my colleague for tions by the Democrats. any questions that the Senators from asking that question because every- If they can’t win on injecting ide- the other side wanted to ask. We body knows, including my friends on ology, and we are seeing that at every stayed there for a very lengthy hear- the other side, that I argued vocifer- step of the way here now, then seek all ing. ously against the few who wanted to unpublished opinions. I will never for- Look, fair is fair. Let’s treat these filibuster on our side. get Dennis Shedd. He was chief of staff people fairly. I expect my colleagues in good faith to Senator Thurmond on this com- I hope my colleagues will not fili- to argue on their side against that. It mittee, one of the nicest people we buster tomorrow because that will be is a dangerous thing to do. It is a have ever had work on this committee.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.212 S12PT2 S2328 CONGRESSIONAL RECORD — SENATE February 12, 2003 I would compare him to Ron Klain, two are filibustering the first Hispanic order for our Judiciary to effectively really nice guys, two really smart nominee for the Circuit Court of Ap- administer justice, it is incumbent guys, two really decent people, two peals for the District of Columbia who upon the ability of the Executive and wonderful attorneys. Ron Klain was Al has lived the American dream, who has the Legislative branches of Govern- Gore’s top aide, and at the time I be- the highest rating possible unani- ment to work together. lieve he worked on the Judiciary Com- mously—and it is their gold standard— Throughout the quarter century I mittee. I can’t remember which Sen- of the American Bar Association. have had the honor of representing the ator he worked for at the time, but he It is absolutely amazing that we are Commonwealth of Virginia in the went throughout the whole campaign going through this. We have now been United States Senate, I have conscien- with Al Gore. He was one of his top ad- doing it for over a week. You would tiously made the effort to work on ju- visers. He is one of the top lawyers in think this is a Supreme Court nominee. dicial nominations with the Presidents this city and he is a personal friend. I Of course, that is part of this. The with whom I have served. Whether our admire him. whole purpose of giving Miguel Estrada President was President Carter, Presi- But when they couldn’t get Judge a rough time is to say, Mr. Estrada, we dent Reagan, President Bush, Presi- Shedd in any other way, they requested don’t want your kind on the Supreme dent Clinton, or President George W. all his unpublished opinions. He has Court. Bush, I have accorded equal weight to been serving for over 10 years. Where That is really what the bottom line the nominations of all Presidents, irre- are those unpublished opinions? Pub- is here. That is why these professors spective of party. lished opinions are where the judge are doing that—because this President Based on the last several years, I am writes an opinion and it becomes pub- has nominated some of the greatest concerned that we as a body are no lished and printed in some law book. lawyers in the history of the country longer according equal weight to the Unpublished opinions are stored in re- on the circuit court of appeals. And nominations of our Presidents irrespec- positories. To get 10 years of unpub- every one of them has to be considered tive of party. The process has become lished opinions took thousands and ultimately for the Supreme Court. highly politicized and, as a result, we thousands of hours, an estimated But this is a shot across the bow are ultimately discouraging highly $75,000. They had to go to Atlanta, as I right now—that you had better darned qualified nominees from serving in our recall, to do this, all for the purposes of well conform to a particular ideology Judiciary. If we as a Senate continue to let par- a fishing expedition, hoping to find just or you are just not going to make it. tisanship remain the hallmark of the something to hang on Dennis Shedd, I hope our colleagues, those with Senate’s judicial confirmation process, who is a well-respected Federal district clear minds and fair attitudes, will pre- and we hold up judicial nominees based court judge. That is the kind of crap vail on that side, as we had to prevail on their party affiliation, then our ju- they had to go through. on this side against filibustering. If I understand one of these professors they don’t, ‘‘Katie bar the door,’’ be- diciary will suffer. Throughout my 25 years in the at that infamous retreat will be here cause I am not sure I will be around United States Senate, I have always tomorrow to speak to the Democrats next time to stop the filibusters—not carefully scrutinized judicial nominees and possibly continue to misguide to say that I am all that important. and considered a number of factors be- them. But the fact is, I did stop them the last fore casting my vote to confirm or re- Then they said if bottling him up in time. There were only a few who want- ject. committee doesn’t fully work—of ed to do that. The vast majority of the The nominee’s character, profes- course it will work for a while, which Republicans said that would be awful, sional career, experience, integrity, we may see tomorrow if they filibuster and I think the vast majority of Demo- and temperament are all important these judges, inserting ideology into crats ought to say the same. I think factors. In addition, I consider whether the confirmation process. If that they ought to wake up and realize what the nominee is likely to interpret law doesn’t work then, if they are judges, they are doing. It is wrong. It is not according to precedent or impose his or seek all unpublished opinions and see if fair to this President. I admit many of her own views. The opinions of the offi- you can find something to pin on them them do not like this President, but he cials from the State in which the nomi- to defeat them. If that doesn’t work, is the President. It is unfair to the Ju- nee would serve and the views of my then do this: Seek privileged internal diciary Committee who voted this man fellow Virginians are also important. memoranda, which they are trying to out of committee. It is unfair to the In addition, I believe our Judiciary do in this case without one ounce of process, which has always had an up- should reflect the broad diversity of justification, to try and get into the or-down vote once the person has been the citizens in serves. actual memoranda written by Miguel brought up on the floor. It is unfair to These principles have served well as I Estrada in his job, in his duty as an As- Miguel Estrada. have scrutinized the records of over a sistant Solicitor in the United States I think I have said all that I care to thousand judicial nominees. One most Solicitor General’s Office, in three say this evening. recent instance that is important for areas: his recommendations on appeal, I yield the floor. us to remember is my support for the his recommendations on certiaria, and Mr. WARNER. Mr. President, I rise nomination of Judge Gregory to serve his recommendations on amicus curae today in support of the nomination of on the United States Court of Appeals matters. Never in the history of the Miguel Estrada, who has been nomi- for the Fourth Circuit. Justice Department has the Solicitor nated by our President to serve on the Judge Gregory was first nominated General’s Office ever been willing to United States Court of Appeals for the by President Clinton and subsequently give up those privileged documents; District of Columbia Circuit. nominated by President Bush. Regard- and they shouldn’t. It is the phoniest, Article II, Section 2 of the Constitu- less of which President nominated most unjustified request that I have tion provides the President with the Judge Gregory, the fact is that he was seen in a long time, and I have seen a authority to nominate, with the ‘‘Ad- highly qualified for the federal bench. lot of phony, unjustified requests. vice and Consent of the Senate,’’ indi- Therefore, I supported his nomination If all of that doesn’t work—if bot- viduals to serve as judges on the Fed- when President Clinton nominated him tling up doesn’t work, injecting ide- eral courts. Thus, the Constitution pro- late in the 106th Congress, and when ology, seeking all unpublished opin- vides a role for both the President and President Bush nominated him early in ions, and if you can’t get privileged, the Senate in this process. The Presi- the 107th Congress. Judge Gregory is unpublished memoranda, then these dent has the power to nominate, and now the first African American Judge law professors said to filibuster—for the Senate has the power to render to ever serve on the United States the first time in the history of the ‘‘Advice and Consent’’ on the nomina- Court of Appeals for the Fourth Cir- country, filibuster. tion. cuit, and he is serving with distinction. That is what we are going through Article II, Section 2 of the Constitu- Judge Gregory’s qualifications were right now. Isn’t it a crime—well, tion places the composition of our Ju- clear-cut. Regardless of which Presi- maybe that is too harsh. Isn’t it a diciary entirely in the hands of the dent nominated him, he deserved the shame and even despicable that they President and the Senate. Therefore, in support of the United States Senate.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.215 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2329 The same is true with the nomina- I will talk about a number of issues, Court in 1987 was defeated after 8 days tion of Miguel Estrada. but the first thing I want to talk about of debate. Mr. Estrada has received a unani- is the fact that cloture or filibusters on So when the majority says that fili- mous ranking of ‘‘Well Qualified’’ by judicial nominations are well-estab- buster on judicial nominations is with- the American Bar Association. And, in lished precedents; they have been long- out precedent, ask them about the fili- my view, his record indicates that he established in this body and are appro- buster led by Senator Thurmond—re- will serve as an excellent jurist. priate in the context of Senate’s Con- cently retired—in 1968 on the nomina- Mr. Estrada’s resume is an impres- stitutional responsibility to advise and tion of Justice Abe Fortas to be Chief sive one. Born in Honduras, Miguel consent. There is no question that the Justice of the United States. Ask the Estrada came to the United States at use of filibusters has increased in re- majority about the filibuster in 1994 on the age of 17. At the time, he was able cent years. the nominations, as we have heard to- to speak only a little English. But just The Congressional Research Service night, on Barkett and Sarokin. Ask 5 years after he came to the United reports that filibuster and cloture are them about the nomination of Berzon, States, he graduated from Columbia used much more regularly today than and Paez to the Ninth Circuit, and the College with Phi Beta Kappa honors. at any time in the Senate’s past. Ap- scores of other judicial nominations Three years after he graduated from proximately two-thirds of all identifi- that were held up by using extreme de- Columbia, Mr. Estrada graduated from able Senate filibusters have occurred laying tactics when the Republicans Harvard Law School where he was an since 1970. Cloture was sought most fre- were in charge. editor of the Harvard Law Review. quently on nominations in the 103rd I stated earlier that of the 79 Clinton Mr. Estrada then went on to serve as Congress; that is, in 1993–1994 when the judicial nominations not confirmed in a law clerk to a Judge on the United House and the Senate were controlled the first Congress, there were 31 circuit States Court of Appeals for the 2nd Cir- by the Democrats, and the Republicans and 48 district court nominees. Fifty- cuit and as a law clerk to Judge Ken- used the filibuster and cloture as the nine of these were never allowed a vote nedy on the United States Supreme tool of the minority. In that Congress, by the Republican-controlled Senate— Court. cloture was sought on 12 nominations— 59 out of the 31 circuit and 48 district After his clerkships, Mr. Estrada judicial and otherwise, and invoked in court judges. Out of the 79 judges, 59 of worked as an Assistant United States only 4. them weren’t even allowed a vote. The Attorney, as an assistant to the Solic- Cloture votes on judicial nominees Republicans didn’t have to worry about itor General in the Department of Jus- are well precedented in recent history. a filibuster. They simply didn’t bring tice, and in private practice for two Both Democrats and Republicans have up President Clinton’s nominees. prestigious law firms. sought cloture in response to debate on As I have indicated, being more spe- Throughout his career, Mr. Estrada judicial nominations since the cloture cific, 31 circuit court nominees and 22 has prosecuted numerous cases before rule extended to nominations in 1949. were blocked from getting the vote and Federal district courts and Federal ap- Cloture was not sought on the nomina- being confirmed. And I read into the peals courts, and he has argued 15 cases tions until 1968 because prior to that RECORD all the names of the district before the United States Supreme concerns over nominations were re- court judges who simply were blocked Court. solved, or the nominee was defeated be- from getting a vote and were not con- Without a doubt, Mr. Estrada’s legal hind closed doors. firmed. I also read into the RECORD cir- credentials make him well qualified for Since that time, all Senators who cuit court nominees who were not the position to which he was nomi- have served in this body have recog- given an opportunity to be voted on, nated. I am thankful for his willingness nized that things have changed a great and certainly were not confirmed. to resume his public service, and I am deal since 1968. There were very few Now, it was the Framers’ intent that confident that he would serve as an ex- votes, period, in the Senate in those we do exactly what we are doing now. cellent jurist. early days. Now we have hundreds of And there have been a number of Mr. President, Miguel Estrada’s nom- votes in every session. From 1968 to writings on that. It is very important ination is a clear-cut case. I urge the 2000, there were 17 cloture attempts on we understand that what is being done Senate to confirm his nomination. judicial nominees. Of the 17 cloture at- here does not happen very often, but it The PRESIDING OFFICER. The Sen- tempts on judicial nominations, in 6 of does happen, Mr. President. ator from Nevada. them the Democrats were in the major- I personally—other than this right Mr. REID. Mr. President, I know the ity and in 7 of them the Republicans here—have been involved in only one audience has dwindled since this phase were in the majority. Of the 17 cloture other filibuster involved in nuclear of this debate started at 9 o’clock. I attempts, 2 involved nominees to the waste. I am told that I hold the record apologize to the Presiding Officer and U.S. district courts, 8 involved nomi- as a first-year Senator for the longest to the staff that has been here for 2 nees to the U.S. court of appeals, and 3 filibuster in the history of the country. workdays already today. But it would involved nominations to U.S. Supreme So I know what a filibuster is. Most certainly be unfair to the people who Court. Senators have never been involved in a we represent on this side of the aisle Opposition to judicial nominations filibuster. We have one here. for me not to say a few words to coun- have been based on objections to judi- Why? Because we are in an area teract and rebut the statements they cial philosophy of the nominee, con- where we really do believe that the per- have made for 3 hours. cerns that the nominee would treat all son who is being asked—Miguel First, I like President Bush. I cer- parties fairly on procedural grounds, Estrada—to be confirmed as a member tainly disagree with what my friend and, in this instance, I might add, for of the DC Circuit is a person from from Utah has said—that people over lack of having information on the nom- whom we are entitled to get some in- here dislike the President. I don’t ination given us by the President. formation. know if that is the case. President There is ample precedent for filibus- As I said to the majority leader, per- Bush is one of the most likable people tering judicial nominations. Based on sonally, and I have said publicly, there I have ever met. I don’t agree with a cloture votes, there have been, as I are only a few things that can be done significant number of policies that he have stated, 17 filibusters on judicial in the procedural posture of which the has enunciated, but that has nothing to nominations. Often there is extended Senate is now engaged. These are not do with disliking President Bush. This debate on the nomination. in order of priority: No. 1, pull the debate has everything to do with our For example, the nomination of nomination. No. 2, the leader or anyone constitutional prerogative under arti- Clement Haynesworth to the U.S. Su- can get a petition signed for cloture cle II, section 2, of the Constitution preme Court was defeated after lengthy and try to invoke cloture. Or it would that requires Senators to review the debate—7 days of debate. The nomina- seem to me the other thing that we judicial nominations sent to us by the tion of G. Harrold Carswell to the U.S. could do is have this man, who said he President of the United States. We Supreme Court was defeated after 12 does not care, prevail upon the Presi- have a right, we have an obligation to days of debate in 1970. The nomination dent to say: Give them those memos I do that. of Robert Bork to the U.S. Supreme wrote while I worked at the Solicitor

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.053 S12PT2 S2330 CONGRESSIONAL RECORD — SENATE February 12, 2003 General’s Office. It has been done be- And if we want to talk a little bit Solicitor General’s Office is that it fore, he should say. It has been done about his legal philosophy, I think it is may give us some idea how he stands with Chief Justice Rehnquist. Senator important because my friend, the dis- on legal issues. LEAHY has the stack of those memos tinguished chairman of the committee, He won’t tell us, so maybe we can provided in Rehnquist’s case. He want- said he wanted to know about—I can- find out from reviewing some of the pa- ed to become Chief Justice, Judge not remember all the names, Marsha pers he has written while he was em- Rehnquist did. We said: We want to see Berzon, Richard Paez, all the names he ployed. That is why we are concerned. those records, those solicitor general mentioned—he wanted to know if they We are concerned because we honestly memoranda. We got them. We reviewed were judicial activists, wanted to know believe we have a constitutional obli- those. It has been done in other cases. their judicial philosophy. And he said, gation to review this man’s records. So there is certainly precedent for with a couple of them, they were judi- Let me just say there has been a lot that. Similarly we should be privy to cial activists. He said he knew that, of talk tonight. There are TV ads run- Mr. Estrada’s memoranda; Mr. Estrada but he felt—for example, for Paez, Sen- ning as we speak. By the way, these TV should answer our questions. ator HATCH is absolutely right, he ads are being paid for by an organiza- I know my friend, the distinguished interceded with Richard Paez and was tion, the ‘‘Committee for Justice’’, Senator from Utah, has stated: I have a able to help get that nomination that was founded by the man who gave book here with all the answers to these through. No question. Senator HATCH Miguel Estrada the rating from the questions. made a very valid, honest statement. American Bar Association, Fred Field- Well, earlier today, I compared But even then, he knew in his mind ing. Mr. Fielding is the one who started Miguel Estrada’s answers to the ques- what the judicial philosophy of Richard this group, and he is running ads tions to a series of answers my grand- Paez was. against us. That is an interesting prop- son gave to questions my son asked We do not know what Miguel osition. At the ABA, the person who re- him. He just turned 3 years old. And I Estrada’s legal philosophy is. We do viewed and interviewed Miguel will repeat it. not know. For example, a question by Estrada, gave his recommendation to We have a home in Nevada. It is new. Senator DURBIN, a Senator from Illi- the ABA—and they accepted what he It is in Searchlight, NV. We have some told them—is a person who formed this new furniture in our new home. And we nois, asked: Give us an idea of some Supreme Court opinions with which committee that is running ads against had my grandchildren and some of my us. They are running all over the coun- boys there. And my little grandson, you disagree. He had no opinion. And as we talked about earlier today, try. Wyatt, wrote on one of the couches I wonder if some people who have not It seems to me the ABA has a slight with a pen. So his dad was upset, and been to law school, maybe have taken problem. According to their manual: he began to interrogate his son, my a course in constitutional law in under- No member of the Committee shall partici- grandson. graduate school—and if you are a law- pate in the work of the Committee if such He said: Did you do this? And little participation will rise to the appearance of Wyatt said: No. So my son, becoming yer like he is—couldn’t you dig up impropriety or would otherwise be incompat- more concentrated in his interrogation maybe the Dred Scott decision that ible with the purposes served and functions of this 3-year-old boy, said: Well, who said slavery was legal and constitu- performed by the Committee. did it, then? And my 3-year-old grand- tional? I don’t think he agrees with The ABA better review this proce- son said: I don’t remember his name. that. Couldn’t he have let us know? dure they have, make sure their re- Well, that is like the answers we Here is Miguel Estrada’s legal philos- viewers comply with it. have gotten from Miguel Estrada. They ophy: a big blank. To say he has rep- What these ads Mr. Fielding is run- are answers that I compare to my resented clients as a private lawyer is ning are saying, among other things, is grandson’s answers. Sure, he said no answer, provides little insight into that we are anti-Hispanic. That’s the something. My grandson gave an an- his philosophy. rhetoric of my friends on the other side swer. And if you printed that out in a As I said earlier today, I have been to of the aisle. book, it would fill up a sentence or so. trial lots of times. I have tried cases We have been accused by one Senator And Miguel Estrada has filled up a before courts over 100 times, presented of sending the message ‘‘if you are a book answering questions by not an- the client’s case to a jury. And a jury minority and a conservative, we hate swering. had to arrive at a decision based on you.’’ The distinguished chairman of When we were in the majority, we how I conducted that case. But after the committee said: ‘‘Hispanics face a could have stopped a lot of judges. We having reviewed every case that I tried, new obstacle from Democrats who have heard people over here asking there would be no way of determining would smear anyone who would be a their questions to the distinguished what my judicial philosophy is because positive role model for Hispanics.’’ chairman of the committee: Is this ret- every time I went to court, I was rep- I am disturbed by the hyperbole, the ribution? Is this vengeance? Well, we resenting somebody charged with mur- rhetoric being used to propel the nomi- said, when we took over control of the der, or someone who was charged with nation of Miguel Estrada to one of the Senate, that, in fact, if we wanted to robbery, or I was representing someone most powerful courts in the United really be mean spirited and treat the who was trying to get money as a re- States, the DC Circuit. I am at a loss Republicans like they treated us, we sult of a wrongful eviction from an to understand it as anything other could have stonewalled the appoint- apartment house, on and on with all than an attempt to silence Senators ment of judges. We said we would not the different cases that I tried. From who today seek to exercise their con- do that. And our record stands: 100 that, no one would know what my judi- stitutional duty to decide whether this judges in a period of 17 months. And cial philosophy would be because I was judicial nominee merits support. just this past Monday we voted unani- representing individuals in cases. Let no one within the sound of this mously for three additional judges. So to say, Estrada has argued cases, Senator’s voice be mistaken: We are And we will vote for a lot more. why don’t you look at the cases he ar- not going to be intimidated from ful- We believe this man, Mr. Estrada, gued? That has nothing to do with his filling this constitutional role. has some serious problems. We believe judicial philosophy. We want answers We know these statements about we have a few questions we want to questions, as we got answers to Democrats are false. The Hispanic Miguel Estrada to answer. As I have questions from the 100 judges Demo- community, the American people, and stated, Miguel Estrada’s answers to the crats moved through this body when my colleagues know the truth: The Judiciary Committee’s questions are we were in the majority, and the three Democratic party has put the vast ma- just like on this chart: a big blank. We who were just approved, confirmed jority of Hispanic appellate court do not know any more, other than the with us in the minority. judges on the bench. This is the first tone of his voice in what he said, what So we are entitled to know what Hispanic circuit court nomination we he knows. With the answers he gave, Miguel Estrada’s legal opinions are. have ever received from the President. we do not know anything more than You see, the reason we are making This is the first one, Miguel Estrada. when we started the Judiciary Com- such a big deal about trying to get As important as our record on His- mittee hearing. these memoranda from his work at the panic judges, the Democratic party is

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.234 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2331 the champion of issues of importance split. There is some dissension among My opposition to Miguel Estrada’s con- to the Hispanic community, from fair the ranks, some claim. The 20 members firmation is based upon the following. First, labor practices to immigration to pro- of the Hispanic Caucus are unani- I believe that Mr. Estrada showed himself tection of civil rights. mously opposed to the nomination of unwilling to allow the Senate to fully evalu- ate his record. He was less than candid in his To recount our record: Of the 10 Miguel Estrada. responses. Yet, Mr. Estrada, as every other Latino appellate court judges who are A release was issued yesterday where nominee who is a candidate for a lifelong ap- now serving, 80 percent were appointed Ciro D. Rodriguez, a Member of Con- pointment, must be prepared to fully answer by Democrats. Several of these nomi- gress from Texas, chairman of that basic questions, particularly where, as here, nees were denied Senate consideration caucus, said: there is no prior judicial record and no legal for years, while the Republicans con- It is disheartening to see that Members of scholarly work since law school to scruti- trolled the Senate. Judge Paez, we the Republican Senate continue to make nize. He declined to give full answer to many have heard about that. Thirty-nine Re- misleading and unfounded statements re- of the questions posed to him by the Senate Judiciary Committee. When he did give an- publicans voted against his nomina- garding the Congressional Hispanic Caucus’s opposition to the Bush nominee Miguel swers, those answers raised troubling doubts tion. Judge Sonia Sotomayor, nomi- concerning his ability to be fair. nated to the Second Circuit, was simi- Estrada. The [Congressional Hispanic Cau- cus] will continue to stand by its unanimous There are serious questions raised by his larly stalled. Her confirmation took 433 opposition to this unqualified nominee and sparse record on basic civil rights and con- days. Twenty-nine Republicans voted will not waiver. stitutional matters. It is unclear that Mr. against her confirmation. Senate Republicans continue to hit below Estrada would recognize that the First And then there were the Hispanic the belt, insulting Hispanic Members of this Amendment protects the rights of Latino nominees who were denied hearings or Congress who have been elected to serve as a youth to congregate and associate on public even votes by Senate Republicans dur- voice for the people in their community. streets. It is also likely that Mr. Estrada ing the Clinton administration: Jorge Today Senate Judiciary Chairman Orrin would not place proper limits on law enforce- ment as required by the Fourth Amendment. Rangel, Enrique Moreno, Christine Hatch continues to make misleading, par- tisan swipes. He incorrectly claims that the Given his views of enumerated rights, there Arguello, Ricardo Morado, Annabelle [Congressional Hispanic Caucus] is split in are serious questions whether he would rec- Rodriguez. These facts and these names its opposition, and he mischaracterizes our ognize a suspect’s right not to make incrimi- bear witness to the false claims made arguments. Yesterday, the [Congressional nating statements. His record leads me to by my colleagues on the other side of Hispanic Caucus] released a letter to Senator conclude that he would not take seriously the aisle. Hatch demanding an apology for comments and fairly Latino allegations of racial Despite these facts, Democrats don’t he made during Senatorial debate, likening profiling by law enforcement. Based on his believe that turnabout is fair play. Members of the [Congressional Hispanic Cau- actions in pro bono litigation, there is a cus] ‘‘to the lioness eating her cubs.’’ question whether he believes that organiza- Where President Bush has sent the tions which have long represented the inter- Senate open and direct nominees, those They go on to say: ests of communities would have the right to nominees have won swift confirmation We have yet to receive an apology or even represent those interests in court. In addi- in the Democratic-controlled Senate. an acknowledgement from the Senator that tion, his views concerning the continued via- President Bush has nominated eight his comments were out of line and insulting. bility of affirmative action programs are Hispanic Americans to the Federal dis- The [caucus] has supported numerous high- also suspect. trict courts, four have been swiftly ly qualified Hispanic appointees by the Bush Given these concerns, I oppose the con- administration. We oppose Mr. Estrada based firmation of Mr. Miguel Estrada. confirmed: Judge Christina Armijo, on our review of his inadequate qualifica- Judge Philip Martinez, Randy Crane, Finally, I am dismayed and disturbed with tions for what is viewed as the second most the tone that has been adopted by some of Jose Martinez. powerful court in the Nation. This anti-Hispanic rhetoric is a red Mr. Estrada’s most vocal supporters. Instead There has been a lot of talk about of focusing on the merits, they have resorted herring. LULAC being so widely in favor of to name-calling and insults. If they cannot Mr. Estrada’s background has noth- Miguel Estrada. Mario G. Obledo, who obtain sufficient support for Mr. Estrada on ing to do with my concerns. The red is a recipient of the Presidential Medal the merits alone and can only gain it by herring nature of this debate is belied of Freedom Award, past national Presi- falsely accusing Senators of being anti-His- panic or accusing Latino organizations who by the fact that leading Latino groups dent of LULAC, cofounder of the don’t support Estrada. They include oppose him of ‘‘selling out’’ their people, Southwest Voter Registration and Edu- then it does make one wonder whether Mr. the Congressional Hispanic Caucus; the cation Project, first general counsel Puerto Rican Defense and Education Estrada deserves the life-term appointment and past president of MALDEF, co- after all. There are some brilliant lawyers Fund; the Mexican American Legal De- founder of the Hispanic National Bar who cannot serve as fair and impartial ju- fense and Education Fund; the Na- Association, founder of the National rists. I now conclude that Mr. Estrada may tional Association of Latino Elected & Coalition of Hispanic Organizations, be a very talented lawyer but he cannot Appointed Officials; the National Coun- opposes the confirmation of Miguel serve as a fair and impartial jurist. His nom- ination should be defeated. cil of La Raza; National Puerto Rican Estrada. Coalition; Puerto Rican Defense and He says, among other things: Mr. President, we also have a letter Education Fund, California La Raza I write to join other Latino civil rights or- dated today, from the League of the Lawyers. ganizations in opposing the confirmation of United Latin American Citizens, These groups are joined by scores of Miguel Estrada to the D.C. Circuit Court of LULAC, addressed to Senators others in opposition to Estrada, includ- Appeals. My history in the Latino civil DASCHLE and HATCH. Among other ing the Leadership Conference on Civil rights community is lengthy. I am a past Na- things, this letter goes on to say that Rights, the Alliance for Justice, the tional President of LULAC, a co-founder of the LULAC organization supports National Organization for Women, the the Southwest Voter Registration and Edu- Miguel Estrada. But the second para- cation Project, the first General Counsel and National Association for the Advance- graph says: ment of Colored People, People for the later President of MALDEF, as well as a co- We are extremely disappointed that his American Way. founder of the Hispanic National Bar Asso- ciation. I am a recipient of the President nomination became mired in controversy. These groups are all dedicated to as- Medal of Freedom Award, this nation’s high- That said, we are alarmed by suggestions by suring equal opportunity in America, est civilian honor in recognition of my in- some of the backers of Mr. Estrada that the protection of minority rights, and ad- volvement with civil rights. I have been an Senate Democrats and members of the Con- vancement of the public interest. They, attorney for 43 years, and a former member gressional Hispanic Caucus are opposed to like many of my colleagues, are deeply of the faculty of Harvard Law School. I was the nomination because of race, ethnicity, concerned by Mr. Estrada’s limited formerly the Secretary of Health and Wel- and Hispanic bias. We do not subscribe to record and his unwillingness to engage fare for the State of California. I am the this view at all, and we do not wish to be as- with the Senate in an open and search- founder and President of the National Coali- sociated with such accusations. tion of Hispanic Organizations. I mention I ask unanimous consent that this ing discussion of judicial philosophy some of my past and current work in the letter be printed in the RECORD. and his record. Latino community so that there is an under- While we are talking about this, let standing of how intertwined my life has been There being no objection, the mate- me say there has been some talk that and still is with the betterment of my com- rial was ordered to be printed in the the Congressional Hispanic Caucus is munity. RECORD, as follows:

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.236 S12PT2 S2332 CONGRESSIONAL RECORD — SENATE February 12, 2003 LEAGUE OF UNITED memoranda Mr. Estrada wrote when he and not refuse to provide the memos LATIN AMERICAN CITIZENS, was in the Solicitor General’s office; that he wrote in the Solicitor General’s Washington, DC, February 12, 2003. other people have not had to give office. Hon. ORRIN G. HATCH, them, so why should he? Other people They say this is the first true fili- Washington, DC. Hon. THOMAS DASCHLE, have turned these memos over is the buster. That certainly is not the case. Hart Senate Office Building, short answer. Another answer is that There have been a number of filibus- Washington, DC. Mr. Estrada—going to why it’s so im- ters—at least 17 on judges. Republicans DEAR SENATOR HATCH AND SENATOR portant here—is that he has virtually have filibustered Democratic nomi- DASCHLE: As you are aware, the League of no other record for us to examine. The nees. Republicans can call it what they United Latin American Citizens, has taken a other side of the aisle, my colleagues, want. Their attempts to invoke cloture position in support of Miguel Estrada for the have called the request for these walked, talked, and looked like filibus- D.C. Circuit Court of Appeals based upon our memos unprecedented. Senator LEAHY ters—they were filibusters. They didn’t review of his qualifications and legal record. We believe that he is an extremely well produced a number of actual Solicitor have the votes to sustain any number qualified nominee with an outstanding legal General memos turned over in the past. of those instances. record that demonstrates his knowledge of We have heard a lot about Mr. Paez There has been talk in the evening the law, his solid judicial temperament, and and about Marsha Berzon. Let me take that the reason the judge from Texas, his ability to set aside any personal beliefs them as an example. This woman was Judge Moreno, didn’t get a vote is be- he may have and make sound legal argu- asked to produce the minutes of meet- cause there was no consultation; it had ments based on the constitution and prece- ings she attended when she was a mem- nothing to do with blue slips, simply dent. ber of the ACLU, American Civil Lib- with the fact that there was no con- We are extremely disappointed that his erties Union. My colleagues went fur- nomination has become mired in con- sultation. troversy. That said, we are alarmed by sug- ther and even required Ms. Berzon to I ask unanimous consent that this gestions from some of the backers of Mr. supply the minutes of the meetings of letter be printed in the RECORD, dated Estrada that the Senate Democrats and the the ACLU while she was a member April 28, 1997, from Charles Ruff, the members of the Congressional Hispanic Cau- even if she didn’t attend the meetings. attorney for President Clinton—like cus are opposing his nomination because of We don’t want to go nearly that far. Gonzales is the attorney for President his race, ethnicity or an anti-Hispanic bias. We want to find out what is in the Bush now. We do not subscribe to this view at all and memoranda. It is not unprecedented. There being no objection, the mate- we do not wish to be associated with such ac- My friends have said these documents cusations. rial was ordered to be printed in the LULAC has had a long and productive are privileged. Everybody in this body RECORD, as follows: knows that the attorney-client privi- working relationship with many Senate THE WHITE HOUSE, Democrats and all of the members of the lege doesn’t apply to the Senate. In the Washington, DC, April 28, 1997. Congressional Hispanic Caucus and our expe- 15-page letter that the President’s law- Hon. ORRIN G. HATCH, rience is that they would never oppose any yer, Mr. Gonzalez, wrote back to the U.S. Senator, Russell Office Building, Wash- nominee because of his or her race or eth- Senate today—actually to Senators ington, DC. nicity. On the contrary, it is most often the LEAHY and DASCHLE in response to our DEAR SENATOR HATCH: Thank you for tak- Democratic members of the Senate who sup- request to produce these memoranda— ing the time to meet with the Attorney Gen- port LULAC’s priority issues and score high- eral and me. est on the National Hispanic Leadership even Mr. Gonzalez recognizes that these are not privileged. Both the As I told you, we are making every effort Agenda’s congressional scorecard which to send forward in the next weeks nomina- LULAC helps to compile. Nine times out of House and the Senate have explicitly tions for the senior positions at the Depart- ten it is the Congressional Hispanic Caucus rejected calls to incorporate that privi- ment of Justice, including Associate Attor- that is the champion or our legislative prior- lege into our rules. A judgment has al- ney General, and Assistant Attorney General ities as outlined in the enclosed LULAC leg- ready been made that to do so would for the Civil Rights and Criminal Divisions, islative platform. impede our ability to do our work, and and the Office of Legal Counsel. We share Nevertheless, the under representation of would impede it certainly with this your commitment to fill these critical posi- Hispanics in the Federal judiciary is of great nomination. tions at the earliest possible date and appre- concern to our organization and we have ciate your willingness to work with us in consistently encouraged both Democratic My friends on the other side of the aisle have implied that our requests achieving that goal. and Republican Presidents to appoint more With respect to judicial nominees, we rec- Hispanics to the Federal courts. Hispanics, are dangerous. I don’t believe that. ognize that, although the selection of judges however, remain severely underrepresented They have implied it would cripple the is among the President’s most important in the judiciary comprising only 3.8% of fed- Solicitor General’s office if these constitutional duties, senators from both eral judges while making up 14% of the US memoranda were released. The office parties have historically played an impor- population. functioned just fine after we got the in- tant role not only through their formal votes Consequently, we do not support the at- formation from Bork and Rehnquist. on such nominations but by providing their tempts of either party to prevent qualified, advice before a nomination comes to a vote. fair-minded, Hispanic nominations from The Solicitor General’s office survived just fine. We knew when we asked for We are committed to achieving the fullest moving forward for a timely confirmation possible measure of bipartisan consultation vote. While we clearly believe that the fili- that information before that it was on before the President makes his selection of a buster of Miguel Estrada is unfair, we also a very limited basis and it would only nominee. As we discussed, the nature of that believe that the delay of many of President apply to them and not to everybody. consultation should be shaped to meet the Clinton’s Hispanic nominees including Rich- The administration claims that these circumstances in particular states—the in- ard Paez, Enrique Moreno and Sonia documents—it reminds me of some terests of the senators involved, the number Sotomayor were unfair. It would be in the other documents that this administra- and type of openings to be filled, and other best interest of both Democratic and Repub- tion has tried to hide. I remember the factors. For example, we met recently with lican Senators to encourage more Hispanic Senators Gramm and Hutchison to discuss nominations to the federal courts and to Vice President and his National Energy Policy Development Group. We wanted their interest in having commissions review avoid embroiling these nominees in the par- the qualifications of candidates, and my staff tisan disputes that prevent the consideration to know if the Vice President met fre- will be working with theirs to determine how of these candidates based on their merits. quently with the oil companies in for- best to implement such a process. Similarly, Sincerely, mulating the nation’s energy policy. I understand that Attorney General HECTOR M. FLORES, They went to court to stop that. Edmisten is working with Senators Nickles LULAC National President. I would simply say here that what we and Inhofe to develop a bipartisan process Mr. REID. This letter goes on to say are asking for is certainly fair and we for identifying potential District Court can- they have had a longstanding relation- should get it. It would be the right didates. And in Pennsylvania, Senators Spec- ship with us, the Democrats; and basi- thing to do. ter and Santorum have worked with Con- cally it goes on to say that they sup- If the President and those on the gressman Murtha to establish commissions to review the qualifications of interested port Latino nominees for courts. They other side of the aisle think so much of candidates. In addition to these formal vehi- want more. this man, it seems that is a very light cles for consultation, we have met and will Mr. President, we have heard state- step to take: to answer the questions continue to meet with Republican senators ments here that we don’t need these and give reasonable, detailed answers, and their staffs to explore how best to obtain

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.059 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2333 their input and to ensure that they are ad- from Harvard. It is a fine law school. ance of impropriety or would otherwise be vised when the President is preparing to an- But let’s not brag about this ABA rat- incompatible with the purposes served and nounce a nomination in their state. ing, in the manner it was obtained. functions performed by the Committee. Because confidentiality and discretion are I know that you fully appreciate the na- While serving on the ABA review ture of the President’s special prerogatives of critical importance to the evaluation in this important area, just as we are sen- committee, Mr. Fielding founded the processes of the Committee, only the Presi- sitive to the special role played by the mem- partisan ‘‘Committee for Justice’’ with dent of the Association, his designee, or the bers of the Senate. We are grateful for your C. Boyden Gray, another partisan Re- Chair of the Committee shall respond to any leadership and your assistance, and we will publican. There is nothing wrong being media or general public inquiries or make be happy to discuss further any specific Republican partisan. It is part of our any statements to the media or general pub- issues that may arise relating to the nomi- system. Some of my best friends are lic relating to the work of the Committee. The President of the Association shall take nation process. Republican partisans. But they should Sincerely, any action necessary to ensure adherence to not be involved in giving people ratings CHARLES F.C. RUFF, these principles. Counsel to the President. at the ABA and then setting up com- Mr. REID. Mr. President, Mr. mittees and paying for ads—running Mr. REID. Mr. President, he says, Fielding’s work in this so-called well- partisan ads if somebody does not ap- among other things: qualified rating does not meet the prove their nominee. smell test. It certainly does not meet We are committed to achieving the fullest The committee is running untrue possible measure of bipartisan consultation the test the ABA adopted. before the President makes his selection of a partisan ads against Democratic Sen- We have also heard tonight, last nominee. . . .We met recently with Senators ators in an attempt to keep us from night I should say at this point, that Gramm and Hutchison to discuss their inter- performing our constitutional duty. there is a vacancy crisis on the Federal est in having commissions review the quali- When Fielding recommended Estrada’s bench. Yet when my colleague, Senator fications of candidates, and my staff will be well-qualified rating, he was serving on HATCH, served as chairman of the Judi- working with theirs to determine how best President Bush’s transition team and ciary Committee during the Clinton to implement such a process. serving as a lawyer for the Republican years, he declared that a vacancy rate So there was consultation. National Committee. This does not of 67 judgeships on the Federal bench This President does not abide by the seem quite right to me. was ‘‘full employment’’ basically. advice and consent clause of the Con- You have to ask yourself, when My colleagues have also asserted stitution. Article II, section 2: We have Americans hear that the ABA rates a there is a crisis in the DC Circuit, not- a constitutional obligation to do just nominee well qualified, do they think ing there are four vacancies in the DC what we are doing. Republicans held up the President’s foot soldiers in the ef- Circuit. I say to my colleagues, if they scores of Clinton nominations. These fort to pack the bench play a major were concerned about such a crisis in nominees were subjected to secret role in making that rating? I doubt it. the DC Circuit, why didn’t they fill the holds, given no hearings or even votes. You have to ask yourself, doesn’t Mr. vacancies? Do you know why? They On two separate occasions today, I Fielding’s dual role—purportedly said the court had too many judges; have read into the RECORD the names ‘‘independent’’ evaluator and partisan they did not need more judges. Even of these people who simply were foot soldier—violate the ABA’s rules? though we had well-qualified people, dumped without even a hearing. ‘‘Governing Principles of the Stand- such as Elena Kagan and Allen Snyder, My friends on the other side of the ing Committee on Federal Judiciary, they said the court had enough judges aisle did not make their objections Appendix,’’ adopted by the ABA Board to do the work they do. known to the American people. We of Governors February 1988. I ask unan- They held them up so they could fill have in the light of day. They did not imous consent that this appendix be the court—hoping they would take the raise their objections in the light of printed in the RECORD. It states, among majority and the White House. They day. They never engaged in debate like other things: wanted their judges on this important this because they hid behind secret No member of the Committee shall partici- court that rules on civil rights, work- holds. pate in the work of the Committee if such ers’ rights, environmental protections, Their assertion that holding up participation would give rise to the appear- women’s rights, and a number of other Miguel Estrada is anti-American, anti- ance of impropriety or would otherwise be issues. Hispanic. I hope we have answered that incompatible with the purposes served and Now suddenly the court that was functions performed by the Committee. assertion. This charge is simply with- jammed to the gills, which really did There being no objection, the mate- out foundation. Democratic adminis- not need more judges, now needs them rial was ordered to be printed in the trations have placed nearly all the all. RECORD, as follows: judges who now serve at the appellate We are going to help them fill vacan- court level. The Democrat-controlled APPENDIX: GOVERNING PRINCIPLES OF THE cies because we believe the circuit Senate expeditiously approved all of STANDING COMMITTEE ON FEDERAL JUDICIARY needed the help when we were in the President Bush’s Hispanic nominees to The Standing Committee on Federal Judi- majority, when we had President Clin- the Federal district courts. ciary shall continue to direct its activities ton as President. But one of those peo- We have done the very best we could to evaluating the professional qualifications ple we are not going to allow to go to to move forward on judicial nomina- of persons being considered for appointment to the federal bench on the basis of predeter- the DC Circuit is Miguel Estrada unless tions, and we have determined it was mined and objective evaluation criteria we get the information we have re- time to draw the line because we are which shall be provided prior to evaluation quested. entitled to more than a blank page. to persons whose qualifications are to be Let me briefly state again that there Miguel Estrada’s ABA rating means evaluated. The Committee will continue, if has been some statement that the So- we should approve him. That is what asked, to provide to the Attorney General licitor General’s memoranda are privi- we are being told. Of course, all should and, following nomination, the Senate Judi- leged. They are not. Senate rules do be reminded that the Republicans, ciary Committee, its appraisal of the profes- not incorporate the attorney-client when they were in the majority, got rid sional competence, integrity and judicial privilege. Both the House and Senate temperament of such persons. of the ABA rating. They did not want In view of the special nature of the func- have declined to adopt that privilege as them to be part of the process. But now tion performed by this Committee and the part of their rules because we found it because Miguel Estrada got this ABA confidence reposed in the Committee’s eval- would impede our ability to do our rating given by Fred Fielding, my col- uations, the integrity and credibility of its work. leagues have deemed the ABA the gold processes and the perception of these proc- The wisdom of that is revealed in the seal of approval. esses are of vital importance. debate of this nominee. He has written Mr. Estrada did receive a well-quali- No member of the Committee while serv- very little besides these memoranda, if fied rating from the ABA, and he may ing as a member or within one year following anything. I understand he wrote one such service, shall seek or accept a nomina- deserve it, but it just does not look tion to the federal bench. law review note in law school. My col- right. I am not here to in any way im- No member of the Committee shall partici- leagues have opined providing these pugn the legal qualifications of a Har- pate in the work of the Committee if such memoranda would decimate the Solic- vard law graduate. I didn’t graduate participation would give rise to the appear- itor General’s Office. As I established,

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.054 S12PT2 S2334 CONGRESSIONAL RECORD — SENATE February 12, 2003 it did not with the nomination of Bork In the long term, this debate is going current law, we can change hearts and when we got the information, it did not to be extremely important and helpful minds as well. with Rehnquist when we got the infor- to the Senate because what it means is f mation, it did not with Easterbrook Presidents in the future, when they JACKIE ROBINSON when we got the information, and Civi- send nominees to go on courts, are letti and others. going to have to answer a few ques- Mrs. BOXER. Mr. President, I am Mr. President, this is, as Senator tions. They cannot send blank slates to proud to join Senators KERRY and HATCH would call it, a true filibuster. become judges. MCCAIN in co-sponsoring their bill to They do not happen very often. There I apologize to the Chair and to the award Jackie Robinson the Congres- have to be strong principles involved, very tired staff. They have worked long sional Gold Medal in recognition of his and there are. As I said last night, my and hard. The Presiding Officer and I profound and lasting contributions to friend from Utah can state as many will be home asleep, and these folks the cause of equality and civil rights in times and in as many different ways he will still be working to prepare the America. wants that there is not a problem with RECORD and take care of things. Jackie Robinson has always been a this nominee, and all I can say is, there So I apologize to everyone for keep- hero of mine—initially because he was is a problem with this nominee. ing them late. I know how hard they the greatest of all Brooklyn Dodgers We, on this side of the aisle, try to be work and how important each of them when I was a young Dodger fan growing very fair, as does the other side of the really is to the Senate and the institu- up six blocks from Ebbets Field, and aisle. We have a wide-ranging political tion. I hope we can wrap things up later because I realized how he had philosophy on our side of the aisle, and pretty quickly. changed America forever and for bet- it is not really often—because Demo- I yield the floor and suggest the ab- ter. crats are noted for their independ- sence of a quorum. Jackie Robinson was a peerless ath- ence—that we unite in this manner. The PRESIDING OFFICER. The Sen- lete who excelled in many sports and We do so here because important ator from Missouri. changed the way that baseball was principles are at stake, because our Mr. TALENT. Mr. President, I think played. He helped Brooklyn win five constitutional duty is at issue. We do pennants and one unforgettable World so because a nominee to a life-time the Senator from Nevada spoke with his usual eloquence and none of us Championship, when we no longer had seat on the second highest court in the to ‘‘wait till next year.’’ land should engage with us in a forth- could tell he was up that early in the morning. Even more important, he was a cou- right manner as he asks for the honor rageous pioneer who overcame tremen- to one day pass judgment on important f dous pressure and prejudice to break freedoms enjoyed by the American LEGISLATIVE SESSION the color line in major league baseball. people. It is hard for us today to imagine the It is not very often we join together Mr. TALENT. Mr. President, I ask obstacles he faced back in 1947, when in a cause, but we have joined together unanimous consent that the Senate our nation’s schools, military, and pub- in this cause because it is wrong for proceed to legislative session. lic facilities were all strictly seg- Miguel Estrada to go rushing on to the The PRESIDING OFFICER. Without regated. Overcoming taunts, assaults, DC Court of Appeals with a blank slate, objection, it is so ordered. and death threats, Jackie Robinson our not knowing what his judicial phi- f losophy is, not knowing what his played baseball—and played magnifi- record is. We want to know what he MORNING BUSINESS cently. His grace, dignity, determina- wrote when he had the opportunity to tion, and tremendous ability made him Mr. TALENT. Mr. President, I ask a hero to millions of Americans of all write memos when he was Assistant unanimous consent that the Senate Solicitor General, and we want him to races and backgrounds. proceed to a period for morning busi- Jackie Robinson once said, ‘‘A life is answer questions. We are entitled to ness. know that. These are not outlandish not important except in the impact it The PRESIDING OFFICER. Without has on other lives.’’ By this high stand- requests. objection, it is so ordered. The legal memoranda are a blank ard, Jackie Robinson’s life had monu- sheet of paper. His legal philosophy is a f mental importance. As Senator KERRY pointed out when introducing this bill, blank sheet of paper. His answers to LOCAL LAW ENFORCEMENT ACT Dr. Martin Luther King once said that the Judiciary Committee’s questions OF 2001 are a blank piece of paper. We deserve he could not do what he was doing if more than that. The Constitution de- Mr. SMITH. Mr. President, I rise Jackie Robinson had not done what he mands more than that. today to speak about the need for hate did. As our nation keeps struggling to Let me again apologize to the Chair crimes legislation. In the last Congress realize Dr. King’s great dream, we can for taking a few minutes this morning, Senator KENNEDY and I introduced the salute Jackie Robinson as one of the but I believed it would be a bit of lazi- Local Law Enforcement Act, a bill that fathers of that dream. ness on my part to walk out tonight, would add new categories to current I urge all of my colleagues to honor after having heard 3 hours of debate by hate crimes law, sending a signal that this great American by co-sponsoring my friend from Utah giving one side of violence of any kind is unacceptable in and passing this bill to award Jackie the story, because this has two sides. our society. Robinson the Congressional Gold This debate has two sides. Of course, I would like to describe a terrible Medal. we believe strongly that on a matter of crime that occurred November 24, 2001, f principle we are right. The Republicans in Cincinnati, OH. Theodore Jenkins, AMERICAN HEART MONTH believe they are right. That is what the 43, was savagely beaten and stabbed. Senate is all about. Jenkins told police that he was at- Mr. TALENT. Mr. President, I rise We are doing nothing that is unusual tacked by five men who beat him with today in recognition of February as or untoward. That is what the Senate a nightstick and stabbed him four American Heart Month. As a strong is all about. That is why the Founding times in the back. The attackers used supporter of the American Heart Asso- Fathers gave the Presiding Officer and racial slurs during the beating, and po- ciation, I want to make clear that pre- me the opportunity to serve, to rep- lice investigated the incident as a hate vention of heart disease should be a resent a State. There are two Senators crime. priority of health care funding. I have from each State. The small State of I believe that government’s first duty always believed that focusing resources New Hampshire, with two Senators, is to defend its citizens, to defend them on prevention will save lives as well as has as much opportunity, right, and against the harms that come out of taxpayers dollars. power in this body as the two Senators hate. The Local Law Enforcement En- Heart disease is the leading cause of from California with 35 million people hancement Act is a symbol that can death in Missouri and in the United in it. That is what the Senate is all become substance. I believe that by States. Almost 18,000 people in Mis- about. passing this legislation and changing souri died of heart disease in 1999.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.241 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2335 Many women believe that heart disease leagues to join me to prioritize legisla- newal initiatives in the 1950’s and 1960’s is a man’s disease, so they fail to per- tion to help prevent heart disease. engendered the rebirth of the city of ceive it as a serious health threat. f New Haven. His pioneering efforts not Every year since 1984, cardiovascular only improved the lives of the people of diseases have claimed the lives of more JOANNE HULS Connecticut, they served as a model for women than men. And, the gap be- Ms. STABENOW. Mr. President, I city revitalization projects across tween male and female deaths con- rise today in both sadness and celebra- America. Generations of Americans tinues to grow wider. The national sta- tion because my longtime staff person have benefitted from the keen mind tistics are even more startling. Heart friend JoAnne Huls has decided to and passionate public service of Dick disease is the number one killer of leave the Senate. Lee. women in the United States, claiming I am sad because I am losing my Born and raised in the working-class more than 250,000 women per year. trusted and valued deputy chief of staff Newhallville section of New Haven, Sadly, an American dies from cardio- who has been with me for a decade. Dick Lee never went to college. None- vascular disease approximately every I celebrate because I am happy to see theless, he moved swiftly through the 33 seconds. More than 61 million Amer- a dear friend move on to new chal- ranks of New Haven city government. icans—one in five males and females— lenges and I wish her the best of luck. In 1954, at the age of 37, he became the suffer from heart disease, stroke or an- JoAnne—a native Michiganian— youngest mayor in New Haven’s 365- other cardiovascular disease. Stroke is joined me as a college intern in 1993 year history. Despite his youth and the third leading cause of death in Mis- when I was in the Michigan Senate. lack of formal education, Dick Lee souri and in the United States. Almost She has been with me in a number of quickly became nationally known as 4,000 people in Missouri died of stroke capacities, including during my tenure one of the most savvy and sophisti- in 1999. Heart disease, stroke and other in the House of Representatives. cated politicians of his time. He is now cardiovascular diseases claim more Then JoAnne came with me to the remembered as one of the most effec- lives each year than the next five lead- Senate, serving as my scheduler and tive mayors in American history. ing causes of death combined. my deputy chief of staff. She has also Under Mayor Lee’s stewardship, New We know the causes of cardiovascular been with me through four campaigns, Haven became the recipient of more disease—one of them is high blood cho- with the usual long hours, tense days Federal aid per capita than any other lesterol. High cholesterol is a leading and junk food. city in the country. He used this influx risk factor for heart disease and All of us appreciate the work our of Federal resources to create a na- stroke. Approximately 42 million staff does for us. They become like tional blueprint for America’s war on Americans have total blood cholesterol family. We often ask them to work poverty, and to showcase innovative levels of 240 milligrams per deciliter long into the night and into the week- urban renewal initiatives, which were and higher. These individuals are con- end for salaries far less than they could desperately needed in hundreds of cit- sidered at high risk for developing cor- command in the private sector. ies nationwide. onary heart disease, which leads to Why do they do it? I think that peo- In the early 1960s, Dick Lee launched heart attack. ple like JoAnne Huls come to this in- Head Start, and dozens of equal oppor- I know that something can be done stitution and work hard every day out tunity and anti-poverty programs in to combat heart disease and save of a sense of dedication to their State New Haven, long before other cities American lives, and that is why I and country. across America began thinking of ways joined Senator DORGAN in cosponsoring And JoAnne also came here out of a to combat urban blight and improve of The Medicare Cholesterol Screening sense of loyalty and dedication to me the lives of inner-city residents. Coverage Act of 2003. This legislation and to the issues we care deeply about. John Lindsay, Mayor of New York adds blood cholesterol screening as a I will forever be grateful to her for City, who called Dick Lee the ‘‘dean of covered benefit for Medicare bene- her hard work, commitment and mayors in this country,’’ once said, ficiaries, at a frequency and in a man- friendship. ‘‘Sometimes my biggest problem is to ner determined by the Secretary of So thank you, JoAnne, good luck. I develop something in New York that Health and Human Services, (HHS). know you will make a difference wher- Dick Lee hasn’t thought of first. This is consistent with guidelines ever you are and I know you will con- None of us will ever lose sight of that issued by the National Heart, Lung, tinue to care deeply about our demo- side of Dick Lee—the tireless vision- and Blood Institute, which recommend cratic process. ary, extraordinarily effective leader, that all Americans over the age of 20 be We are fortunate that people such as and dedicated public servant. But screened for high cholesterol at least JoAnne Huls are willing to be in public many of us also had the great good for- once every five years. Currently, Medi- service. tune to call Dick Lee a personal friend. care only covers cholesterol and other f lipid testing for patients who already And he was truly a wonderful friend. suffer from known disease such as ADDITIONAL STATEMENTS My father Thomas Dodd, myself, and heart disease, stroke, or other dis- the entire Dodd family have known the orders associated with elevated choles- Lee family for generations. We will al- TRIBUTE TO MAYOR RICHARD C. terol levels. ways treasure our many memories. This bill also provides flexibility to LEE Mr. President, Dick Lee could have allow the Secretary of HHS to cover fu- ∑ Mr. DODD. Mr. President, I rise done many things with his life—he ture cardiovascular screening tests today to pay tribute to an outstanding could have run for governor of Con- that might become the standard of care public servant, and a wonderful friend, necticut; he could have run for Con- in the future, so that Medicare can former New Haven Mayor Richard Lee, gress; he could have taken a Cabinet keep pace with changes in medicine. who passed away last week at the age position. Congress has already acted to cover of 86. He chose to stay home—he chose to other screening tests such as bone My most heartfelt condolences go out stay in New Haven. That’s because mass measurement, glaucoma to his wife, Ellen Griffin Lee, their Dick Lee embraced his city of new screenings, and screenings for three children, Sarah, Tara, and David, Haven as a beloved family member colorectal, prostate, and breast cancer. and the entire Lee family. whom he could never leave. I speak for Now is the time to also extend Medi- I share the grief of so many from my many when I say it is nearly impos- care coverage for cholesterol screening. state of Connecticut, and from around sible to imagine the Elm City without In recognizing February as American the country, who knew Dick Lee as the Dick Lee. Heart Month, I urge my colleagues to heart and soul of New Haven, and as a Dick Lee ultimately served 16 years act on The Medicare Cholesterol visionary leader who transformed as mayor of New Haven, 1954 through Screening Coverage Act of 2003, and I urban politics nationwide. 1970, making him the longest serving thank Senator DORGAN for his leader- Mayor Lee will be best remembered mayor in the city’s history. Through ship on this issue. I also urge my col- as the man whose innovative urban re- those years, he never lost sight of his

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.191 S12PT2 S2336 CONGRESSIONAL RECORD — SENATE February 12, 2003 working-class roots; even after emerg- called him at night to talk about the city’s a time when it was lit by gaslights, and he ing as a towering figure in urban poli- goings-on, give advice when needed and continued to live there for several years tics, he continued to live for many pump him for gossip. after he became mayor. ‘‘It’s a series of late-night phone calls I’ll He later moved to McKinley Avenue in the years in his home neighborhood of miss,’’ DeStefano said. Westville section and stayed there until 2000, Newhallville. And he never lost sight of What came through even in DeStefano’s when his health forced him to sell his Tudor what he believed to be his calling in last visit to Lee ‘‘was this positive attitude,’’ house and move with his wife to an assisted politics: improving the lives of others. he said. ‘‘He was like some Runyonesque living apartment complex at Whitney Cen- His greatest passion was always re- character who was a real bookmark of a time ter. served for helping the most underprivi- and a place in the city.’’ Lee was a beloved figure to many New leged among us. ‘‘Every day I go to work and I sit at his Haven, even to some of those who berated desk—the very desk that Dick Lee sat at— him for knocking down their neighborhoods. Dick Lee was often credited with and I feel blessed . . . ,’’ DeStefano said. By the time Lee became mayor, he had turning new Haven into a ‘‘model ‘‘He wasn’t perfect. He failed at some been an alderman and had worked as a re- city.’’ He would never accept that things like all of us do. but you don’t fail un- porter for the Journal-Courier, the morning term. He once said, ‘‘I resent the term less you’re trying—and Dick was always try- paper owned by the Jackson family that also ‘model city’ . . . We’re not a ‘model ing. New Haven is just a blessed place for his ran the New Haven Register; for the Cham- city’ if there is a single man who is un- service,’’ DeStefano said. ber of Commerce and as director of the Yale employed, if there is a single slum YOUNGEST MAYOR News Bureau. While Lee never went to college, he was al- home.’’ Mayor Lee, who took office on New Year’s Day 1954 as the youngest mayor in the city’s ways proud of the fact that Yale University It has been said that the purpose of in 1961 gave him an honorary master’s de- politics is to generate hope. Dick Lee history, recast New Haven in broad strokes in the 1950s and 1960s—for better and, in the gree. He was the first American mayor since followed that credo every day, and mil- minds of some New Haveners, for worse. New York’s Fiorello LaGuardia to receive lions have so benefitted. Lee, a World War II Army veteran, de- one and the first New Haven mayor since 1842 There weren’t many leaders like Dick feated Republican incumbent Mayor William to be so honored. Lee back in the 1950’s and 1960’s, and Celentano in 1953 to begin a half-century un- In later years he was one of the Proprietors broken chain of Democratic rule in New of the Green and a trustee at Albertus Mag- there aren’t many today. He helped im- nus College. He also worked for the United prove the lives of so many people and Haven that continues to this day. He brought in the best planners and social Way, served as vice president and assistant will be greatly missed by so many service professionals of the time, listened to to the chairman of Union Trust bank and more. what they came up with, dreamed big and had affiliations with the University of Con- I would like to submit for the made New Haven a ‘‘model city’’ watched necticut and Quinnipiac University. RECORD an extraordinary tribute to across the nation. Julia M. McNamara, the president of Mayor Lee, written by Mark Zaretszky And while some of the huge changes he Albertus, said Lee’s affiliation with the col- in the New Haven Register, dated Feb- brought to the city have not stood the test of lege begun October 1925 when he was one of time, he was respected—and, more often two altar boys at the opening ceremony of ruary 3, 2003. the Dominican facility. He was a trustee at The tribute follows. than not, genuinely liked—even by his crit- ics. Albertus for 17 years and was trustee emer- FORMER MAYOR RICHARD C. LEE REMEMBERED Some have called him the most significant itus at the time of his death. FONDLY New Haven mayor since its first, Roger Sher- ‘‘He brought with him all his wonderful ex- NEW HAVEN.—Former Mayor Richard C. man. perience and background and a tremendous Lee, the longest-serving chief executive in ‘‘Dick Lee was a tireless visionary, a won- spirit of faith. He was a man of great integ- the city’s 365-year-history, will be remem- derful friend, and one of the greatest mayors rity who really, for us, was an inspiration,’’ bered by the city he loved as the man who in American history,’’ said Sen. Joseph I. said McNamara, who became a close personal remade New Haven and, until his own health Lieberman, D–Conn. ‘‘He loved New Haven friend of Lee. faltered, never missed a wake. and made it a much better city than it would Longtime friend and New Haven Register Lee—friend and adviser to presidents, pio- have been without him.’’ Editor Emeritus Robert J. Leeney said Lee neer of the urban renewal era, outspoken Lee ‘‘was a mentor and inspiration to me was totally dedicated to New Haven. ‘‘After a long life of achievement, the sig- early critic of the Vietnam War and proud in the early years of my career, and I learned nificant fact about Dick Lee has been his Irish American—died Sunday morning after from him that politics means having a vi- lasting focus on the New Haven community a long bout with heart disease and diabetes. sion, building coalitions to get things done, into which he was born,’’ said Leeney, who He was 86. and remembering to enjoy yourself in the directed the newspaper’s coverage for much Lee, New Haven’s 44th mayor, served a process.’’ of the time Lee was in office. ‘‘His affection record eight terms from 1954 to 1969. He is Lieberman, whose house in New Haven for and concern for hometown people and places survived by his wife, Ellen Griffin Lee, his years was just two or three blocks from never waned despite his political sophistica- children Sarah ‘‘Sally’’ A. Lee, David Lee Lee’s, was the 2000 Democratic vice presi- tion and his administrative skills.’’ and Tara Lee Croke and their families, in- dential nominee. He is now a candidate for Throughout his career, ‘‘he never worked cluding grandchildren Stacy, Lindsey and El- president in 2004. ‘‘I’ll never forget our first meeting, when more than a block or two from the central liott Lee. in my capacity as Yale Daily News editor, I Green . . .’’ Leeney said. ‘‘The rhythm of ‘‘My youth has fled, but it was a really interviewed him at the Jewish Center health this city was the rhythm of his life . . . His good life,’’ Lee said a week before his death club, and quickly ended up riding around constant public service and warm person- as he lay in bed Jan. 26 at the Whitney Cen- town with him to see the fruits of his suc- ality have made Dick Lee’s civic legacy a ter in Hamden surrounded by family and cessful urban renewal campaign,’’ Lieberman model of past energy and of future inspira- close friends. ‘‘The memories never dis- said. tion for the city he loved.’’ appear . . . No one can take them away from ‘‘That was the beginning of a lifelong Lee’s wake will take place Tuesday from 3 me.’’ friendship, and I will miss him tremen- p.m. to 8 p.m. at Sisk Brothers Funeral Mayor Lee had a particularly good day the dously,’’ he said. Home, 3105 Whitney Ave. in Hamden. A Mass previous Saturday, according to Ellen Lee, ‘‘Dick Lee is a legend in urban America,’’ of Christian burial will be celebrated at 10:30 spinning stories and laughing with family said U.S. Sen. Edward M. Kennedy, D–Mass. a.m. Wednesday in St. Mary’s Church on and other friends for hours and staying up on the occasion of Mayor Lee’s last big testi- Hillhouse Avenue. until 10 p.m. monial dinner in 1998. The senator has A NEW BLUEPRINT For part of the day last Sunday he wore a known Lee since John F. Kennedy was presi- Under Mayor Lee, New Haven became a Boston Red Sox cap given to him by the late dent and Robert F. Kennedy as attorney gen- ‘‘Smokey Joe’’ Wood, the New Haven-born blueprint upon which much of the national eral. war on poverty was modeled. star pitcher who was his favorite Red Sox During the 1960 presidential campaign, Lee player and Lee’s neighbor for many years. Lee’s New Haven was the recipient of more was one of the first U.S. mayors to declare federal money per capita than any other city A PASSIONATE MAN his support for JFK, and was a friend of the in the country during the presidencies of ‘‘Dick was a passionate man,’’ said Mayor Kennedy family for years. JFK and Lyndon B. Johnson, when a total of ‘‘He’s one of the all-time great American John DeStefano Jr., who visited him several $180 million was sent to Elm City. times during his last days. ‘‘He governed pas- mayors, and his eloquent leadership in tack- It was in Dick Lee’s New Haven that Head sionately, his likes and his dislikes were pas- ling the challenge of our cities became an in- Start, legal assistance and various equal op- sionate and I think what animated his per- spiration to Congress and the country,’’ Ken- portunity and anti-poverty were born, begin- sonality was his ability to feel emotion.’’ nedy said. ning was back in 1962, before the rest of the DeStefano, the city’s 49th mayor, said Lee, NEWHALLVILLE ROOTS nation knew what those things were. who had been an adviser and confidante in Lee grew up on Shelton Avenue in the New Haven was one of six cities to initiate DeStefano’s nine years as mayor, frequently city’s working class Newhallville section at ‘‘human renewal’’ programs using Ford

VerDate Jan 31 2003 01:23 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.068 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2337 Foundation grants that fostered programs John C. Daniels, who met Lee as a high fore he died—he managed to outlive many of that were precursors to the national ‘‘Model school student and was later introduced to his legacies. Cities’’ legislation. politics when Lee appointed him to fill a va- Those included his grandest, most sym- Lee and his administration, led early on by cancy on the Board of Aldermen. bolic and most celebrated project, which Development Administrator Edward Logue, ‘‘He was in the forefront of changing that,’’ cleared three downtown blocks—angering also were responsible for huge chunks of the said Daniels who served as mayor for two dozens of business owners whose properties city’s modern landscape: the Chapel Square terms from 1990 to 1994 and was the first, and he acquired—to make room for Macy’s, Mall, the Coliseum and the Knights of Co- still the only, African American to hold the Malley’s, the Chapel Square mall and what is lumbus building, Dixwell Plaza and the office. now the Omni Hotel. Dixwell Community ‘‘Q’’ House, schools, fire BRING IN THE BEST Since then, the Malley’s building was lev- houses, a revived Wooster Square and the Lee made it acceptable for mayors to reach eled, Macy’s closed and most of the mer- Long Wharf commercial strip. outside of the city to bring in talented peo- chants in the mall have been sent packing, But ‘‘I think to focus on the urban renewal ple, said former two-term mayor Frank although a new developer is on the scene projects would be to miss the point of Dick Logue, younger brother of the late Edward with promises of upscale stores. Lee’s time as mayor,’’ said DeStefano. ‘‘His Logue, who was Lee’s right-hand man before The three-block project was the largest terms in office spanned a period of time in moving on to help remake Boston and New physical component of Lee’s urban renewal which the character of America changed.’’ York City. programs and many critics have viewed its ‘‘With the suburbanization of America in ‘‘He put together energetic and creative decline as evidence of failure. Others, includ- the 50s and the dramatic social change of the people to be the key people in city govern- ing DeStefano and some of Lee’s former 60s . . . the war, civil rights and the disturb- ment,’’ Logue said. ‘‘As far as I know, he was staffers, say the development served its pur- ances . . . in the city . . . I think the measure the first guy to do that in a serious way . . pose and now must be redone. of his mayoralty (was) that Dick Lee kept .’’ Lee came to terms years ago with the fact the city together,’’ he said. ‘‘Together in One of the significant things about Lee is that even some of his grandest plans had terms of sharing a direction, sharing a vi- the extent to which even his critics re- faded. sion, creating hope, and from that hope, spected him. ‘‘Well, we still have the hotel,’’ he laughed, helping people lead complete lives.’’ ‘‘He’s really one of New Haven’s heroic fig- throwing up his arms in a shrug when asked As a new mayor, Lee assembled New Ha- ures,’’ said Vincent J. Scully Jr., Sterling about the state of downtown in 1998. ven’s first ‘‘professional’’ government. He professor emeritus in art history at Yale Lee even managed to outlive some of the listened to the talented people he hired and University. huge public works projects intended to be his made New Haven one of the ‘‘model cities’’ of Scully was one of the people who success- memorials: the Richard C. Lee High School the time. fully opposed Lee-era redevelopment plans closed in 1986; the Oak Street/Route 34 con- Then, as Lee’s time in the mayor’s office that would have knocked down the post of- nector, which later was named for him, was approached its end amid the tumultuous fice and federal court building that now never finished. events of the 1960s, he saw the city’s image bears Lee’s name, the New Haven Free Pub- He joked privately at the 1994 dedication of tarnished when racial unrest erupted in 1967, lic Library and Union Station. the four block connector as the ‘‘Richard C. something that took him by surprise. But Lee ‘‘was a dedicated man,’’ Scully Lee Highway’’ that it was one of his greatest As viewed today, Lee’s eight terms in of- said. ‘‘He really has to be regarded as New disappointments. ‘‘Let’s just say it’s an aw- fice, spanning 16 years from 1954 to 1969, were Haven’s greatest mayor.’’ fully short highway,’’ he said. punctuated by such ironies. They also long Lee sought advice from the experts of that Finally, in 1998 the federal government re- ago were inscribed in 20th century political time and ‘‘got the best advice he could,’’ said named the federal courthouse on Church science and urban planning textbooks. Scully, a New Haven native. ‘‘I though a lot Street after him—a memorial that is likely Douglas Rae, a professor of political of it was very much a mistake . . . but that to remain standing for some time. science at Yale, who has just finished a book wasn’t Lee’s fault . . . He did what the ex- Appropriately, it was a building he once critical of some of Lee’s legacy, offered no perts told him to do . . . sought to knock down. such criticism of Lee the man. Scully said the reaction to urban renewal Lee recognized the contradictions of his ‘‘He is New Haven’s finest political cre- spawned a new era for urban planners, led legacy long ago and commented on it in a ation of the 20th century—a man whose vi- here by former New Haven Preservation speech he delivered in 1980 when the U.S. sion and humanity tower above other may- Trust director Margaret ‘‘Peggy’’ Flynn. Conference of Mayors gave him a public serv- ors and other public figures in that long pe- ‘‘New Haven became the heart and soul of ice award. riod,’’ Rae said. ‘‘The guy was absolutely re- the New Preservation movement,’’ he said. ‘‘For every failure we recorded, we had markable.’’ To many people, Lee was the guy who more than our share of successes,’’ Lee said, HUMAN RENEWAL saved New Haven. To others however, includ- referring to his entire generation of mayors, ‘‘and, by God, I’m proud of that era. ‘‘He was a great mayor,’’ said former state ing many of those who lived along Oak ‘‘We would dream, and we did; we would Treasurer Henry E. ‘‘Hank’’ Parker, who Street and Legion avenue, neighborhoods he try, and we did,’’ he said. ‘‘When we failed, came to New Haven from Poughkeepsie, N.Y. bulldozed for the never-completed Route 34 we failed magnificently, and, when we suc- in 1957 to be program director for Winchester connector, he was a pariah. ceeded, we succeeded sometime beyond our Community School as part one of Lee’s But, according to one of his former top fondest expectations, and, after all, what’s ‘‘human renewal’’ programs. staffers, former Redevelopment Agency head wrong with a record like that?’’ ‘‘He opened the door to a city that needed Harold Grabino, ‘‘the ‘wrecked New Haven‘ He also recognized that even monumental the urban renewal that he indeed pioneered,’’ stuff is a lot of crap.’’ plans have a limited shelf life. said Parker, who became the first president ‘‘It’s unfortunate that it didn’t hold,’’ ‘‘You know, we were swimming against the of the New Haven Black Coalition in 1968 and Grabino, now a New York City developer, tide,’’ Lee said, referring to the social and ran for mayor himself in 1969, the year Lee said of Lee’s bold effort to rebuild New economic forces, led by the federal highway bowed out. ‘‘Without that, we would have Haven. ‘‘But without the attempt that was system, that literally took people and com- been even further behind.’’ made, New Haven would have been in far merce out to the suburbs in the second half Parker made history of his own when he worse shape than it was, a lot earlier.’’ of the last century. became Connecticut’s first black state treas- Grabino remembers Lee as ‘‘very much a urer in 1974. person-to-person politician’’ who worked A LOCAL GUY What made Lee great? masterfully to try to satisfy New Haven’s di- While Lee loved New Haven and chose not Parker said Lee managed the tumultuous verse population and varying ethnic groups. to move on to higher office, his fame was not changes New Haven and all cities were going He also remembers him as a man who, just a local phenomenon. through in that era ‘‘better than anyone else after one particularly grueling day trip to ‘‘There were times when Dick Lee could of this time.’’ He used his Community Washington, D.C. to testify before Congress, have run for governor. He could have run for Progress Inc. and other programs to blend insisted upon stopping at three wakes on the senator. He probably could even have taken together urban and human renewal ‘‘like no- way home from LaGuardia Airport. a Cabinet position,’’ said Daniels. Joel Cogen, legal counsel for the Redevel- body else,’’ Parker said. But ‘‘Dick loved being mayor of New opment Agency under Lee, said Lee really Lee ‘‘was meticulous about government,’’ Haven,’’ said DeStefano. ‘‘It meant the world did believe in working with people in the Parker said. ‘‘He was willing to bring people to him. Except for Ellen and his family, neighborhoods. ‘‘It was an incipient thing at into the administration who were smarter nothing meant more.’’ that time.’’ He said the mayor was further than he was’’ and listened to what they said. Recognition of Lee’s dedication, innova- ‘‘It wasn’t the buildings’’ that made Lee hamstrung by the kind of federal money tion and leadership—and his role as an urban significant, said DeStefano. ‘‘It was the peo- available, which favored demolition over re- groundbreaker—cut cleanly across ideolog- ple.’’ newal. ical lines and emanated far beyond New When Lee started as mayor, ‘‘the African OUTLIVED LEGACIES Haven. American population was increasing but One of the ironies of Lee’s life is how—de- In 1967, John Lindsay, the Republican there was bad housing and old schools. There spite infirmities that had doctors and his mayor of America’s largest city, called Lee was discrimination,’’ said former Mayor family worrying about his health decades be- ‘‘the dean of mayors in this country’’ and

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.070 S12PT2 S2338 CONGRESSIONAL RECORD — SENATE February 12, 2003 said, ‘‘Sometimes, my biggest problem is to from the President of the United tion of a hydroelectric project in the State of develop something in New York that Dick States submitting sundry nominations Illinois. Lee hasn’t thought of first.’’ which were referred to the appropriate H.J. Res. 19. A joint resolution recognizing Conservative icon William F. Buckley Jr. the 92nd birthday of Ronald Reagan. committees. once kidded that Lee, a liberal Democrat, ‘‘is The message also announced that the excellently equipped to act as a mayor, par- (The nominations received today are ticularly of impoverished cities which desire printed at the end of the Senate pro- House has agreed to the following con- to mulct (extract) from the federal govern- ceedings.) current resolutions, in which it re- quests the concurrence of the Senate: ment funds to reify (make concrete) Mr. f Lee’s municipal visions.’’ H. Con. Res. 22. Concurrent Resolution A few days after Lee finally let go of City NATIONAL DRUG CONTROL honoring Czech Republic President Vaclav Hall in 1969, the New York Times in an edi- STRATEGY FOR 2003—PM 15 Havel. torial called him ‘‘one of the pioneers of The PRESIDING OFFICER laid be- H. Con. Res. 27. Concurrent Resolution con- urban renewal’’ and declared, ‘‘a significant demning the selection of Libya to chair the chapter in American urban history was con- fore the Senate the following message United Nations Commission on Human cluded.’’ from the President of the United Rights, and for other purposes. While New Haven won widespread fame as States, together with an accompanying f one of the ‘‘model cities’’ of that era, Lee report; which was referred to the Com- himself rejected that notion. mittee on the Judiciary: MEASURES REFERRED ‘‘I resent the term ‘model city,’ ’’ he told the New York Post in August 1967, one week To the Congress of the United States: The following bill was read the first after five days of race riots erupted. ‘‘I have I am pleased to transmit the 2003 Na- and the second times by unanimous avoided it. I’ve hated it. We’re not a model tional Drug Control Strategy, con- consent, and referred as indicated: city if there is a single man who is unem- sistent with the Office of National H.R. 397. An act to reinstate and extend ployed, if there is a single slum home.’’ the deadline for commencement of construc- He told Time magazine soon afterward: ‘‘If Drug Control Policy Reauthorization Act of 1998 (12 U.S.C. 1705). tion of a hydroelectric project in the State of New Haven is a model city, then God help Illinois; to the Committee on Energy and urban America.’’∑ A critical component of our Strategy Natural Resources. is to teach young people how to avoid f The following concurrent resolutions illegal drugs because of the damage were read, and referred as indicated: MITCHELL AWARD drugs can do to their health and future. ∑ Ms. CANTWELL. Mr. President, I Our children must learn early that H. Con. Res. 22. Concurrent resolution hon- come to the floor today to recognize oring Czech Republic President Vaclav they have a lifelong responsibility to Havel; to the Committee on Foreign Rela- and congratulate one of the eleven win- reject illegal drug use and to stay tions. ners of the George J. Mitchell Scholar- sober. Our young people who avoid H. Con. Res. 27. Concurrent resolution con- ship, Miss Jasmin Weaver. Jasmin is a drugs will grow up best able to partici- demning the selection of Libya to chair the student at the University of Wash- pate in the promise of America. United Nations Commission on Human ington in Seattle and has been awarded Yet far too many Americans already Rights, and for other purposes; to the Com- this prestigious scholarship based on use illegal drugs, and most of those mittee on Foreign Relations. her academic excellence, leadership, whose drug use has progressed—more f and community service, Jasmin rep- than five million Americans—do not EXECUTIVE AND OTHER resents the third award winner from even realize they need help. While COMMUNICATIONS the University of Washington in the those who suffer from addiction must The following communications were last three years. help themselves, family, friends, and laid before the Senate, together with The George J. Mitchell Scholarship, people with drug experiences must do accompanying papers, reports, and doc- which is administered by the nonprofit their part to help to heal and to make uments, which were referred as indi- U.S.-Ireland Alliance, was created to whole men and women who have been cated: build bonds between American and broken by addiction. Irish leaders and was named in honor We know the drug trade is a business. EC–1129. A communication from the Ad- of the respected former leader of this Drug traffickers are in that business to ministrator, Food Safety and Inspection Service, Department of Agriculture, trans- body who played an integral part in the make money, and this Strategy out- mitting, pursuant to law, the report of a rule peace process of Ireland. This scholar- lines how we intend to deny them rev- entitled ‘‘Use of Transglutaminase Enzyme ship allows university students the op- enue. In short, we intend to make the and Pork Collagen as Binders in Certain portunity to do postgraduate study for drug trade unprofitable wherever we Meat and Poultry Products (01–016DF)’’ re- a year at a university in Ireland. There can. ceived on February 10, 2003; to the Com- were a record number of applicants this Our Strategy is performance-based, mittee on Agriculture, Nutrition, and For- year, with nearly 300 students applying and its success will be measured by its estry. here in the United States. results. Those results are our moral ob- EC–1130. A communication from the Ad- This award has been particularly im- ministrator, Food Safety and Inspection ligation to our children. I ask for your Service, Department of Agriculture, trans- portant for my home State, with three continued support in this critical en- mitting, pursuant to law, the report of a rule recipients of this award from the Uni- deavor. entitled ‘‘Mandatory Inspection of Ratites versity of Washington in the last three GEORGE W. BUSH. and Squabs (0583–AC84)’’ received on Feb- years. Last year’s award recipient was THE WHITE HOUSE, February 12, 2003. ruary 10, 2003; to the Committee on Agri- Matt Alexander and the previous year f culture, Nutrition, and Forestry. Dawn Hewett. I would like to person- EC–1131. A communication from the Ad- ally congratulate all three winners of MESSAGE FROM THE HOUSE ministrator, Food Safety and Inspection Service, Department of Agriculture, trans- this award from our State and I know At 3:26 p.m., a message from the House of Representatives, delivered by mitting, pursuant to law, the report of a rule Washington students will continue entitled ‘‘Increases in Fees for Meat, Poul- their legacy of excellence through this Mr. Niland, one of its reading clerks, try, and Egg Products Inspection Services— award in the future.∑ announced that the House has passed Fiscal Year (FY) 2002 (0583–AC89)’’ received f the following bill, without amendment: on February 10, 2003; to the Committee on S. 141. An act to improve the calculation of Agriculture, Nutrition, and Forestry. MESSAGES FROM THE PRESIDENT the Federal subsidy rate with respect to cer- EC–1132. A communication from the Acting Messages from the President of the tain small business loans, and for other pur- Principle Deputy Associate Administrator, United States were communicated to poses. Environmental Protection Agency, transmit- the Senate by Mr. Williams, one of his The message also announced that the ting, pursuant to law, the report of a rule en- titled ‘‘Imazamx; Exemption from the Re- secretaries. House has passed the following bills quirement of a Tolerance (FRL 7291–3)’’ re- f and joint resolution: ceived on February 10, 2003; to the Com- EXECUTIVE MESSAGES REFERRED H.R. 337. An act to extend certain hydro- mittee on Agriculture, Nutrition, and For- electric licenses in the State of Alaska. estry. As in executive session the Presiding H.R. 397. An act to reinstate and extend EC–1133. A communication from the Con- Officer laid before the Senate messages the deadline for commencement of construc- gressional Review Coordinator, Animal and

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.072 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2339 Plant Health Inspection Service, Department law, the report of a Violation of the ment Agency, transmitting, pursuant to law, of Agriculture, transmitting, pursuant to Antideficiency Act at Phillips Laboratory, the report of a rule entitled ‘‘Final Flood law, the report of a rule entitled ‘‘Interstate Space and Missile Center, Edwards Air Force Elevation Determination 68 FR 1549 (44 CFR Movement of Gardenia from Hawaii (Doc.No. Base, California, in the amount of $214,263.35; Part 67)’’ received on February 10, 2003; to 01–042–2)’’ received on February 10, 2003; to to the Committee on Appropriations. the Committee on Banking, Housing, and the Committee on Agriculture, Nutrition, EC–1143. A communication from the Under Urban Affairs. and Forestry. Secretary of Defense, Comptroller, Depart- EC–1155. A communication from the Gen- EC–1134. A communication from the Con- ment of Defense, transmitting, pursuant to eral Counsel, Federal Emergency Manage- gressional Review Coordinator, Animal and law, the report of a Violation of the ment Agency, transmitting, pursuant to law, Plant Health Inspection Service, Department Antideficiency Act at Phillips Laboratory, the report of a rule entitled ‘‘Suspension of of Agriculture, transmitting, pursuant to Space and Missile Center, Edwards Air Force Community Eligibility 67 FR 79879 (Doc. No. law, the report of a rule entitled ‘‘Imported Base, California, in the amount of $666,000; to FEMA–7799)’’ received on February 10, 2003; Fire Ant; Additions to Quarantined Areas the Committee on Appropriations. to the Committee on Banking, Housing, and (Doc. No. 02–114–1)’’ received on February 10, EC–1144. A communication from the Assist- Urban Affairs. 2003; to the Committee on Agriculture, Nu- ant Secretary of Defense, Health Affairs, De- EC–1156. A communication from the Chair- trition, and Forestry. partment of Defense, transmitting, pursuant man of the Council, Council of the District of EC–1135. A communication from the Con- to law, the TRICARE Program Fiscal Year Columbia, transmitting, pursuant to law, the gressional Review Coordinator, Animal and 2002 Report to Congress; to the Committee report on D.C. Act 14–614 ‘‘Urban Forest Plant Health Inspection Service, Department on Armed Services. Preservation Act of 2002’’ received on Feb- of Agriculture, transmitting, pursuant to EC–1145. A communication from the Under ruary 10, 2003; to the Committee on Govern- law, the report of a rule entitled ‘‘Fruit and Secretary of Defense, Personnel and Readi- mental Affairs. Vegetable from Hawaii (Doc. No. 00–052–2)’’ ness, transmitting, the report of a retire- EC–1157. A communication from the Chair- received on February 10, 2003; to the Com- ment; to the Committee on Armed Services. man of the Council, Council of the District of EC–1146. A communication from the Chief mittee on Agriculture, Nutrition, and For- Columbia, transmitting, pursuant to law, the Regulations Unit, Internal Revenue Service, estry. report on D.C. Act 14–613 ‘‘Electronic Record- Department of the Treasury, transmitting, EC–1136. A communication from the Con- ing Procedures Act of 2002’’ received on Feb- pursuant to law, the report of a rule entitled gressional Review Coordinator, Animal and ruary 10, 2003; to the Committee on Govern- ‘‘Taxpayer Identification Number (TIN) Plant Health Inspection Service, Department mental Affairs. Matching Program (Rev. Proc. 2003–9)’’ re- of Agriculture, transmitting, pursuant to EC–1158. A communication from the Chair- ceive on February 10, 2003; to the Committee law, the report of a rule entitled ‘‘Importa- man of the Council, Council of the District of on Finance . tion of Used Farm Equipment from Regions EC–1147. A communication from the Assist- Columbia, transmitting, pursuant to law, the Affected with Foot and Mouth Disease (Doc. ant Legal Adviser for Treaty Affairs, Depart- report on D.C. Act 14–625 ‘‘Rehabilitation No. 01–037–2)’’ received on February 10, 2003; ment of State, transmitting, pursuant to Services Program Establishment Temporary to the Committee on Agriculture, Nutrition, law, the report relative to international Act of 2003’’ received on February 10, 2003; to and Forestry. agreements other than treaties entered into the Committee on Governmental Affairs. EC–1137. A communication from the Con- by the United States under the Case-Za- EC–1159. A communication from the Chair- gressional Review Coordinator, Animal and blocki Act with Canada, United Arab Emir- man of the Council, Council of the District of Plant Health Inspection Service, Department ates, and Australia; to the Committee on Columbia, transmitting, pursuant to law, the of Agriculture, transmitting, pursuant to Foreign Relations. report on D.C. Act 14–626 ‘‘Prevention of Pre- law, the report of a rule entitled ‘‘Karnal EC–1148. A communication from the Direc- mature Release of Mentally Incompetent De- Bunt; Restrictions on the Use of Grain Origi- tor, Regulations Policy and Management, fendants Temporary Amendment Act of nating in a Regulated Area (Doc. No. 01–118– Department of Health and Human Services, 2003’’ received on February 10, 2003; to the 2)’’ received on February 10, 2003; to the transmitting, pursuant to law, the report of Committee on Governmental Affairs. Committee on Agriculture, Nutrition, and a rule entitled ‘‘Revision of the Definition of EC–1160. A communication from the Chair- Forestry. the Term ‘‘No Residue’’ in the New Animal man of the Council, Council of the District of EC–1138. A communication from the Acting Drug Regulations (RIN0910–AC45)’’ received Columbia, transmitting, pursuant to law, the Principle Deputy Associate Administrator, on February 10, 2003; to the Committee on report on D.C. Act 14–617 ‘‘Mental Health Environmental Protection Agency, transmit- Health, Education, Labor, and Pensions. Civil Commitment Act of 2002’’ received on ting, pursuant to law, the report of a rule en- EC–1149. A communication from the Chair- February 10, 2003; to the Committee on Gov- titled ‘‘Approval and Promulgation of Air man, Board of Governors, Federal Reserve ernmental Affairs. Quality Implementation Plans; West Vir- System, transmitting, pursuant to law, the EC–1161. A communication from the Chair- ginia; Regulation to Prevent and Control Air Semiannual Monetary Policy Report, re- man of the Council, Council of the District of Pollution from Combustion of Refuse ceived on February 1, 2003; to the Committee Columbia, transmitting, pursuant to law, the (FRL7442–1)’’ received on February 10, 2003; on Banking, Housing, and Urban Affairs. report on D.C. Act 14–616 ‘‘Tax Clarity and to the Committee on Environment and Pub- EC–1150. A communication from the Gen- Recorder of Deeds Act of 2002’’ received on lic Works. eral Counsel, Federal Emergency Manage- February 10, 2003; to the Committee on Gov- EC–1139. A communication from the Acting ment Agency, transmitting, pursuant to law, ernmental Affairs. Principle Deputy Associate Administrator, the report of a rule entitled ‘‘Final Flood EC–1162. A communication from the Chair- Environmental Protection Agency, transmit- Elevation Determinations 68 FR 1550 (44 CFR man of the Council, Council of the District of ting, pursuant to law, the report of a rule en- Part 67)’’ received on February 10, 2003; to Columbia, transmitting, pursuant to law, the titled ‘‘Interim Final Determination That the Committee on Banking, Housing, and report on D.C. Act 14–615 ‘‘Procurement State has Corrected Rule Deficiencies and Urban Affairs. Practices Vendor Payment Authorization Stay and/or Deferral of Sanctions, San Joa- EC–1151. A communication from the Gen- Amendment Act of 2002’’ received on Feb- quin Valley Unified Air Pollution Control eral Counsel, Federal Emergency Manage- ruary 10, 2003; to the Committee on Govern- District (FRL 7451–1)’’ received on February ment Agency, transmitting, pursuant to law, mental Affairs. 10, 2003; to the Committee on Environment the report of a rule entitled ‘‘Changes in EC–1163. A communication from the Chair- and Public Works. Flood Elevation Determinations 68 FR 1543 man of the Council, Council of the District of EC–1140. A communication from the Under (44 CFR Part 65)’’ received on February 10, Columbia, transmitting, pursuant to law, the Secretary of Defense, Comptroller, Depart- 2003; to the Committee on Banking, Housing, report on D.C. Act 14–624 ‘‘Bowling Alley and ment of Defense, transmitting, pursuant to and Urban Affairs. Billiard Parlor Temporary Act of 2003’’ re- law, the report of a Violation of the EC–1152. A communication from the Gen- ceived on February 10, 2003; to the Com- Antideficiency Act at the Naval Facilities eral Counsel, Federal Emergency Manage- mittee on Governmental Affairs. Engineering Command, Pacific Division, ment Agency, transmitting, pursuant to law, EC–1164. A communication from the Chair- Pearl Harbor, Hawaii, in the amount of the report of a rule entitled ‘‘Changes in man of the Council, Council of the District of $671,700; to the Committee on Appropria- Flood Determinations 68 FR 1540 (Doc. No. Columbia, transmitting, pursuant to law, the tions. FEMA–D–7533)’’ received on February 10, report on D.C. Act 14–623 ‘‘Tax Increment Fi- EC–1141. A communication from the Under 2003; to the Committee on Banking, Housing, nancing Reauthorization Temporary Act of Secretary of Defense, Comptroller, Depart- and Urban Affairs. 2003’’ received on February 10, 2003; to the ment of Defense, transmitting, pursuant to EC–1153. A communication from the Gen- Committee on Governmental Affairs. law, the report of a Violation of the eral Counsel, Federal Emergency Manage- EC–1165. A communication from the Chair- Antideficiency Act at the Naval Facilities ment Agency, transmitting, pursuant to law, man of the Council, Council of the District of Engineering Command, Pacific Division, the report of a rule entitled ‘‘Final Flood Columbia, transmitting, pursuant to law, the Pearl Harbor, Hawaii, in the amount of Elevation Determination 68 FR 1547 (44 CFR report on D.C. Act 14–622 ‘‘Criminal Code and $34,713,000; to the Committee on Appropria- Part 67)’’ received on February 10, 2003; to Miscellaneous Technical Amendments Act of tions. the Committee on Banking, Housing, and 2002’’ received on February 10, 2003; to the EC–1142. A communication from the Under Urban Affairs. Committee on Governmental Affairs. Secretary of Defense, Comptroller, Depart- EC–1154. A communication from the Gen- EC–1166. A communication from the Chair- ment of Defense, transmitting, pursuant to eral Counsel, Federal Emergency Manage- man of the Council, Council of the District of

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.064 S12PT2 S2340 CONGRESSIONAL RECORD — SENATE February 12, 2003 Columbia, transmitting, pursuant to law, the Alley in Square 484, S.O. 02–601, Act of 2002’’ improve the temporary assistance to needy report on D.C. Act 14–621 ‘‘Removal from the received on February 10, 2003; to the Com- families program, and for other purposes; to Permanent System of Highways, a portion of mittee on Governmental Affairs. the Committee on Finance. 22nd Street, S.E. and the Dedication of Land EC–1177. A communication from the Chair- By Mr. MCCAIN (for himself and Mr. for Street Purposes (S.O. 00–89) Act of 2002’’ man of the Council, Council of the District of GRAHAM of South Carolina): received on February 10, 2003; to the Com- Columbia, transmitting, pursuant to law, the S. 368. A bill to amend title XI of the So- mittee on Governmental Affairs. report on D.C. Act 14–586 ‘‘Closing of a Por- cial Security Act to include additional infor- EC–1167. A communication from the Chair- tion of a Public Alley in Square 209, S.O. 02– mation in social security account state- man of the Council, Council of the District of 1019, Act of 2002’’ received on February 10, ments; to the Committee on Finance. Columbia, transmitting, pursuant to law, the 2003; to the Committee on Governmental Af- By Mr. THOMAS: report on D.C. Act 14–620 ‘‘Council Review of fairs . S. 369. A bill to amend the Endangered Spe- the Exclusive Right Agreement for the Rede- EC–1178. A communication from the Chair- cies Act of 1973 to improve the processes for velopment of the Existing Convention Center man of the Council, Council of the District of listing, recovery planning, and delisting, and Site Amendment Act of 2002’’ received on Columbia, transmitting, pursuant to law, the for other purposes; to the Committee on En- February 10, 2003; to the Committee on Gov- report on D.C. Act 14–588 ‘‘Eastern Avenue vironment and Public Works. ernmental Affairs. Tour Bus Parking Temporary Amendment By Mr. SMITH (for himself and Mr. EC–1168. A communication from the Chair- Act of 2002’’ received on February 10, 2003; to WYDEN): man of the Council, Council of the District of the Committee on Governmental Affairs. S. 370. A bill to amend the Oil Pollution Columbia, transmitting, pursuant to law, the EC–1179. A communication from the Chair, Act of 1990 to improve provisions concerning report on D.C. Act 14–619 ‘‘District Anti-Defi- Federal Election Commission, transmitting, the recovery of damages for injuries result- ciency Act of 2002’’ received on February 10, pursuant to law, the report relative to the ing from oil spills; to the Committee on En- 2003; to the Committee on Governmental Af- Federal Election Commission’s internal vironment and Public Works. fairs. management control and financial manage- By Mr. DEWINE (for himself, Mrs. EC–1169. A communication from the Chair- ment control systems; to the Committee on CLINTON, and Mr. REED): man of the Council, Council of the District of Governmental Affairs. S. 371. A bill to amend the Public Health Columbia, transmitting, pursuant to law, the EC–1180. A communication from the Under Service Act to ensure an adequate supply report on D.C. Act 14–618 ‘‘Energy and Oper- Secretary and Director, United States Pat- vaccines; to the Committee on Health, Edu- ational efficiency Performance Based Con- ent and Trademark Office, transmitting, pur- cation, Labor, and Pensions. tracting Amendment Act of 2002’’ received on suant to law, the Fiscal Year 2002 Manage- By Mr. THOMAS (for himself and Mr. February 10, 2003; to the Committee on Gov- ment and Inventory Report for the Patent CRAIG): ernmental Affairs. and Trademark Office; to the Committee on S. 372. A bill to amend the National Envi- EC–1170. A communication from the Chair- Governmental Affairs. ronmental Policy At of 1969 to require that man of the Council, Council of the District of EC–1181. A communication from the Sec- Federal agencies consult with State agencies Columbia, transmitting, pursuant to law, the retary of Veterans Affair, transmitting, pur- and county and local governments on envi- report on D.C. Act 14–627 ‘‘Local, Small and suant to law, the Annual Performance and ronmental impact statements; to the Com- Disadvantaged Business Enterprise Program Accountability Report Fiscal Year 2002 for mittee on Environment and Public Works. Temporary Amendment Act of 2003’’ received the Department of Veterans Affairs; to the By Mr. KENNEDY (for himself, Mr. on February 10, 2003; to the Committee on Committee on Governmental Affairs. KERRY, Mr. AKAKA, Mrs. CLINTON, Mr. CORZINE, Mr. DODD, Mr. INOUYE, Mr. Governmental Affairs. f EC–1171. A communication from the Chair- FEINGOLD, Mr. LEVIN, Mr. LIEBERMAN, man of the Council, Council of the District of REPORTS OF COMMITTEES Ms. MIKULSKI, Mr. REED, and Mr. Columbia, transmitting, pursuant to law, the The following reports of committees SARBANES): report on D.C. Act 14–579 ‘‘Vacant and Aban- S. 373. A bill to amend title XVIII of the doned Properties Community Development were submitted: Social Security Act to provide for patient and Disposition of Certain Scattered Vacant By Mr. NICKLES, without amendment: protection by limiting the number of manda- and Abandoned Properties Act of 2002’’ re- S. Res. 56. An original resolution author- tory overtime hours a nurse may be required ceived on February 10, 2003; to the Com- izing expenditures by the Committee on the to work in certain providers of services to mittee on Governmental Affairs. Budget. which payments are made under the medi- EC–1172. A communication from the Chair- f care program; to the Committee on Finance. man of the Council, Council of the District of By Mr. BAUCUS (for himself, Mr. Columbia, transmitting, pursuant to law, the INTRODUCTION OF BILLS AND BUNNING, Mr. ENZI, Mr. ENSIGN, Mr. report on D.C. Act 14–580 ‘‘Establishment of JOINT RESOLUTIONS CRAPO, Mr. BURNS, Mr. JOHNSON, Mr. the Capitol Hill Business Improvement Dis- The following bills and joint resolu- BAYH, Mr. COCHRAN, Mr. INHOFE, Mr. trict Amendment Act of 2002’’ received on tions were introduced, read the first ALLEN, Mr. NICKLES, Mr. WARNER, February 10, 2003; to the Committee on Gov- and second times by unanimous con- and Mr. MILLER): ernmental Affairs. S. 374. A bill to amend the Internal Rev- EC–1173. A communication from the Chair- sent, and referred as indicated: enue Code of 1986 to repeal the occupational man of the Council, Council of the District of By Mr. CORZINE: taxes relating to distilled spirits, wine, and Columbia, transmitting, pursuant to law, the S. 364. A bill to prohibit the use of tax- beer; to the Committee on Finance. report on D.C. Act 14–581 ‘‘Closing of a 18.08 payer funds to advocate a position that is in- By Mr. DOMENICI (for himself, Mrs. Foot Wide Public Alley in Square 4543 S.O. consistent with existing Supreme Court LINCOLN, Mr. ROCKEFELLER, and Mr. 01–3587 Act of 2002’’ received on February 10, precedent with respect to the Second Amend- THOMAS): 2003; to the Committee on Governmental Af- ment; to the Committee on the Judiciary. S. 375. A bill to amend title XVIII of the fairs . By Mr. BINGAMAN (for himself, Mr. Social Security Act to establish a minimum EC–1174. A communication from the Chair- CRAIG, Mrs. LINCOLN, and Mr. COCH- geographic cost-of-practice index value for man of the Council, Council of the District of RAN): physicians’ services furnished under the Columbia, transmitting, pursuant to law, the S. 365. A bill to amend title 23, United medicare program of 1; to the Committee on report on D.C. Act 14–582 ‘‘Closing of a Drain- States Code, to establish a program to make Finance. age alley and Portions of Burns Place, S.E. allocations to States for projects to expand By Mr. DURBIN: and C Street, S.E. and the Dedication of 2-lane highways in rural areas to 4-lane high- S. 376. A bill to amend the Public Health Burns Courty, S.E., Bay Lane, S.E. and Cape ways; to the Committee on Environment and Service Act to promote organ donation and Drive, S.E. (S.O. 01–2143) Act of 2002’’ re- Public Works. facilitate interstate linkage and 24-hour ac- ceived on February 10, 2003; to the Com- By Mr. JEFFORDS (for himself, Ms. cess to State donor registries, and for other mittee on Governmental Affairs. COLLINS, Mr. LIEBERMAN, Ms. SNOWE, purposes; to the Committee on Health, Edu- EC–1175. A communication from the Chair- Mr. SCHUMER, Mr. BIDEN, Mrs. BOXER, cation, Labor, and Pensions. man of the Council, Council of the District of Mrs. CLINTON, Mr. CORZINE, Mr. By Ms. LANDRIEU (for herself, Mr. Columbia, transmitting, pursuant to law, the DODD, Mr. EDWARDS, Mr. FEINGOLD, BREAUX, Mr. COCHRAN, Mr. JOHNSON, report on D.C. Act 14–583 ‘‘Closing of Por- Mrs. FEINSTEIN, Mr. KENNEDY, Mr. Mr. NELSON of Florida, Mr. tions of Virginia Avenue, S.E., K Street , KERRY, Mr. LAUTENBERG, Mr. LEAHY, VOINOVICH, Mr. REID, Mr. SANTORUM, S.E., L Street S.E. and 7th Street, S.E. and Mr. REED, Mr. SARBANES, and Mr. Mr. DURBIN, Mr. CHAFEE, Mr. FEIN- Transfer of Jurisdiction of Reservations 19 WYDEN): GOLD, Mr. LIEBERMAN, Ms. STABENOW, and 124, S .O 02–2677, Act of 2002’’ received on S. 366. A bill to amend the Clean Air Act to and Mr. MILLER): February 10, 2003; to the Committee on Gov- reduce emissions from electric powerplants, S. 377. A bill to require the Secretary of ernmental Affairs. and for other purposes; to the Committee on the Treasury to mint coins in commemora- EC–1176. A communication from the Chair- Environment and Public Works. tion of the contributions of Dr. Martin Lu- man of the Council, Council of the District of By Mr. ROCKEFELLER: ther King, Jr., to the United States; to the Columbia, transmitting, pursuant to law, the S. 367. A bill to amend part A of title IV of Committee on Banking, Housing, and Urban report on D.C. Act 14–585 ‘‘Closing of a Public the Social Security Act to reauthorize and Affairs.

VerDate Jan 31 2003 01:23 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.066 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2341 By Mr. DASCHLE (for himself, Mr. (Mr. FITZGERALD), the Senator from California (Mrs. FEINSTEIN), the Sen- BINGAMAN, Mr. CONRAD, Mr. BAUCUS, New Jersey (Mr. CORZINE) and the Sen- ator from Washington (Ms. CANTWELL) Mr. JOHNSON, and Mr. KOHL): ator from Massachusetts (Mr. KEN- and the Senator from Vermont (Mr. S. 378. A bill to recruit and retain more qualified individuals to teach in Tribal Col- NEDY) were added as cosponsors of S. JEFFORDS) were added as cosponsors of leges or Universities; to the Committee on 138, a bill to temporarily increase the S. 312, a bill to amend title XXI of the Indian Affairs. Federal medical assistance percentage Social Security Act to extend the By Mr. BINGAMAN (for himself and for the medicaid program. availability of allotments for fiscal Mr. THOMAS): S. 215 years 1998 through 2001 under the State S. 379. A bill to amend title XVIII of the Children’s Health Insurance Program. Social Security Act to improve the medicare At the request of Mrs. FEINSTEIN, the incentive payment program; to the Com- name of the Senator from Nevada (Mr. S. 333 mittee on Finance. REID) was added as a cosponsor of S. At the request of Mr. BREAUX, the By Ms. COLLINS (for herself, Mr. CAR- 215, a bill to authorize funding assist- name of the Senator from Illinois (Mr. PER, and Mr. BROWNBACK): ance for the States for the discharge of FITZGERALD) was added as a cosponsor S. 380. A bill to amend chapter 83 of title 5, homeland security activities by the of S. 333, a bill to promote elder jus- United States Code, to reform the funding of National Guard. tice, and for other purposes. benefits under the Civil Service Retirement System for employees of the United States S. 241 S. 363 Postal Service, and for other purposes; to the At the request of Ms. SNOWE, the At the request of Ms. MIKULSKI, the Committee on Governmental Affairs. name of the Senator from Ohio (Mr. names of the Senator from Arkansas By Ms. LANDRIEU (for herself, Mr. DEWINE) was added as a cosponsor of S. (Mrs. LINCOLN), the Senator from Flor- DEWINE, Ms. STABENOW, Mr. BREAUX, 241, a bill to amend the Coastal Zone ida (Mr. NELSON) and the Senator from and Ms. COLLINS): S. 381. A bill to provide the Secretary of Management Act. South Dakota (Mr. JOHNSON) were Housing and Urban Development the author- S. 251 added as cosponsors of S. 363, a bill to ity to establish programs that serve At the request of Mr. LOTT, the name amend title II of the Social Security intergenerational families, and for other of the Senator from Virginia (Mr. Act to provide that the reductions in purposes; to the Committee on Banking, ALLEN) was added as a cosponsor of S. social security benefits which are re- Housing, and Urban Affairs. 251, a bill to amend the Internal Rev- quired in the case of spouses and sur- By Mr. DORGAN (for himself, Mr. enue Code of 1986 to repeal the 4.3-cent viving spouses who are also receiving CAMPBELL, Mr. BINGAMAN, Mr. certain Government pensions shall be INOUYE, Ms. LANDRIEU, Mr. JOHNSON, motor fuel excise taxes on railroads Ms. CANTWELL, Mr. WARNER, Mrs. and inland waterway transportation equal to the amount by which two- LINCOLN, and Mr. TALENT): which remain in the general fund of the thirds of the total amount of the com- S. 382. A bill to amend title XVIII of the Treasury. bined monthly benefit (before reduc- Social Security Act to provide for coverage S. 253 tion) and monthly pension exceeds of cardiovascular screening tests under the $1,200, adjusted for inflation. medicare program; to the Committee on Fi- At the request of Mr. CAMPBELL, the S. CON. RES. 4 nance. name of the Senator from Louisiana By Ms. STABENOW: (Mr. BREAUX) was added as a cosponsor At the request of Mr. MCCAIN, the S. 383. A bill to amend the Solid Waste Dis- of S. 253, a bill to amend title 18, name of the Senator from Kansas (Mr. posal Act to prohibit the importation of Ca- United States Code, to exempt quali- BROWNBACK) was added as a cosponsor nadian municipal solid waste without State fied current and former law enforce- of S. Con. Res. 4, a concurrent resolu- consent; to the Committee on Environment ment officers from State laws prohib- tion welcoming the expression of sup- and Public Works. port of 18 European nations for the en- By Mr. REID (for himself, Mr. LEVIN, iting the carrying of concealed hand- Mr. DURBIN, and Mr. KENNEDY): guns. forcement of United Nations Security S. 384. A bill to amend the Internal Rev- S. 265 Council Resolution 1441. enue Code of 1986 to prevent corporate expa- At the request of Mrs. BOXER, the S. RES. 46 triation to avoid United States income At the request of Mr. BINGAMAN, the taxes; to the Committee on Finance. names of the Senator from Nevada (Mr. REID), the Senator from California names of the Senator from Montana f (Mrs. FEINSTEIN) and the Senator from (Mr. BAUCUS), the Senator from Wash- SUBMISSION OF CONCURRENT AND New Jersey (Mr. CORZINE) were added ington (Ms. CANTWELL), the Senator SENATE RESOLUTIONS as cosponsors of S. 265, a bill to amend from Nebraska (Mr. HAGEL), the Sen- The following concurrent resolutions the Internal Revenue Code of 1986 to in- ator from Washington (Mrs. MURRAY) and Senate resolutions were read, and clude sports utility vehicles in the lim- and the Senator from Missouri (Mr. referred (or acted upon), as indicated: itation on the depreciation of certain TALENT) were added as cosponsors of S. Res. 46, a resolution designating March By Ms. SNOWE (for herself and Mr. luxury automobiles. 31, 2003, as ‘‘National Civilian Con- KERRY): S. 272 servation Corps Day’’. S. Res. 55. A resolution authorizing ex- At the request of Mr. SANTORUM, the penditures by the Committee on Small Busi- name of the Senator from Colorado f ness and Entrepreneurship; to the Com- (Mr. ALLARD) was added as a cosponsor mittee on Small Business and Entrepreneur- STATEMENTS ON INTRODUCED ship. of S. 272, a bill to provide incentives for BILLS AND JOINT RESOLUTIONS By Mr. NICKLES: charitable contributions by individuals By Mr. CORZINE: S. Res. 56. An original resolution author- and businesses, to improve the public S. 364. A bill to prohibit the use of izing expenditures by the Committee on the disclosure of activities of exempt orga- taxpayers funds to advocate a position Budget; from the Committee on the Budget; nizations, and to enhance the ability of to the Committee on Rules and Administra- that is inconsistent with existing Su- low income Americans to gain finan- preme Court precedent with respect to tion. cial security by building assets, and for f the Second Amendment; to the Com- other purposes. mittee on the Judiciary. ADDITIONAL COSPONSORS S. 304 Mr. CORZINE. Mr. President, today I S. 68 At the request of Mr. DODD, the name am introducing legislation to prohibit At the request of Mr. INOUYE, the of the Senator from Illinois (Mr. DUR- the use of taxpayer funds to advocate a name of the Senator from Washington BIN) was added as a cosponsor of S. 304, position on the meaning of the Second (Mrs. MURRAY) was added as a cospon- a bill to amend the Family and Medical Amendment that is inconsistent with sor of S. 68, a bill to amend title 38, Leave Act of 1993 to expand the scope existing Supreme Court precedent, as United States Code, to improve bene- of the Act, and for other purposes. expressed in the Supreme Court case of fits for Filipino veterans of World War S. 312 United States v. Miller. II, and for other purposes. At the request of Mr. ROCKEFELLER, This legislation responds to the Bush S. 138 the names of the Senator from Indiana Administration’s filing of two unprece- At the request of Mr. ROCKEFELLER, (Mr. LUGAR), the Senator from Mary- dented briefs to the United States Su- the names of the Senator from Illinois land (Mr. SARBANES), the Senator from preme Court, which argued that the

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.073 S12PT2 S2342 CONGRESSIONAL RECORD — SENATE February 12, 2003 Second Amendment establishes an in- these deaths, including enacting rea- Mr. Ashcroft’s personnel opinion has become dividual right to possess firearms. In sonable gun safety legislation. Yet if that of the United States government. This taking this position, the Justice De- the Bush Administration prevails in its posture represents an astonishing challenge to the long-settled doctrine that the right to partment directly contradicted the effort to radically revise the Second bear arms protected by the Second Amend- well-established precedents of the Su- Amendment, such laws could well be ment is closely tied to membership in the preme Court, as expressed in the sem- undermined. The end result would be militia. It is no secret that controversy inal case of United States v. Miller. In more death and more families losing about the meaning of the amendment has es- that 1939 case, the Supreme Court loved ones to the scourge of gun vio- calated in recent years. As evidence grew found that the Second Amendment did lence. that a significant portion of the American not establish a private right of individ- I have asked the Congressional Re- electorate favored the regulation of fire- search Service whether there are any arms, the N.R.A. and its allies insisted ever uals to possess firearms, but rather was more vehemently that the private right to intended to ensure the effectiveness of constitutional precedents that would possess arms is a constitutional absolute. groups of citizen-soldiers known at the bar the Congress from adopting this This opinion, once seen as marginal, has be- time as the Militia. legislation, and the answer was ‘‘no.’’ I come an article of faith on the right, and Re- The Court in United States v. Miller also would note that there is precedent publican politicians have in turn had to ac- explained the historical background to for Congress prohibiting the use of tax- knowledge its force. the Second Amendment and issued its payer dollars to advocate positions The two cases under appeal do not offer an ruling clearly and unambiguously. ideal test of the administration’s new views. with which Congress disagrees. For ex- One concerns a man charged with violating a That ruling has never been reversed, ample, Congress for many years prohib- federal statute prohibiting individuals under and the Court has followed it in every ited the Justice Department from domestic violence restraining orders from subsequent related case. Similarly, the using appropriated money to overturn carrying guns; the other involves a man con- precedent in United States v. Miller certain rules under our antitrust laws. victed of owning machine guns, which is ille- has been followed by every Justice De- This responded to the filing of a brief gal under federal law. In both cases, the de- partment over the past several decades, in the Supreme Court by the Justice fendants cite the Second Amendment as pro- including the Justice Departments of tecting their right to have the firearms. The Department urging a revision of its unsavory facts may explain why Mr. Olson is Presidents Ronald Reagan, Richard precedents on resale price mainte- using these cases as vehicles to announce the Nixon and George H.W. Bush. nance, and the legislation effectively administration’s constitutional position The meaning of the Second Amend- blocked the Department from filing while urging the Supreme Court not to ac- ment should not be a partisan issue. In similar briefs. cept the appeals. fact, it should not be a political issue. In conclusion, we should not allow The court last examined this issue in 1939 It is a legal and constitutional issue. taxpayer dollars to be used to mis- in United States v. Miller. There it held that And the law on this question has been the Second Amendment was designed to en- represent the meaning of the Second sure the effectiveness of the militia, not to clearly established by the highest Amendment on behalf of a partisan, po- guarantee a private right to possess fire- court in the land in case after case for litical agenda. We should defend the arms. The Miller case, though it did not fully a period of many decades. Constitution against such ideological explore the entire constitutional history, has Unfortunately, instead of following attacks. We should protect taxpayers guided the government’s position on firearm the law, as Attorney General promised from being forced to subsidize ideolog- issues for the past six decades. to do during his confirmation hearing, ical gambits. And we should ensure If the court were to take up the two cases the Bush Administration and the Jus- on appeal, it is far from clear that the Jus- that the Constitution is not misused to tice Department’s new position would pre- tice Department have used their au- undermine gun safety legislation that vail. The plain text of the Second Amend- thority to file briefs as a means of pur- could save the lives of many innocent ment—‘‘A well regulated militia, being nec- suing a partisan political agenda that Americans. essary to the security of a free state, the flies in the face of established Supreme I hope my colleagues will support the right of the people to keep and bear arms Court precedents. This is wrong. And, bill, and I ask unanimous consent that shall not be infringed’’—does not support the in my view, it is a misuse of taxpayer the text of the legislation be printed in unequivocal view that Mr. Ashcroft and Mr. Olson have put forth. The amendment refers dollars. the RECORD, along with some related Congress should not have to pass a to the right of the people, rather than the in- materials about this matter. dividual person of the Fifth Amendment. law to ensure that the Executive There being no objection, the mate- And the phrase ‘‘keep and bear arms’’ is, as Branch follows the Constitution, as rial was ordered to be printed in the most commentators note, a military ref- clearly interpreted by the Supreme RECORD, as follows: erence. Court. Unfortunately, in light of the S. 364 Nor do the debates surrounding the adop- tion of the amendment support the idea that Bush’s Administration’s latest actions, Be it enacted by the Senate and House of Rep- Congress must step in. After all, the framers were thinking of an individual resentatives of the United States of America in right to own arms. The relevant proposals of- Congress’s ultimate power is the power Congress assembled, fered by the state ratification conventions of of the purse. And we have a responsi- SECTION 1. PROHIBITION ON THE USE OF FUNDS. 1787–88 all dealt with the need to preserve bility to use that power, when nec- No funds appropriated to the Department the militia as an alternative to a standing essary, to ensure that the Executive of Justice or any other agency may be used army. The only recorded discussion of the Branch complies with constitutional to file any brief or to otherwise advocate be- amendment in the House of Representatives law. fore any judicial or administrative body any concerned whether religious dissenters This responsibility flows from position with respect to the meaning of the should be compelled to serve in the militia. Congress’s obligation to preserve, pro- Second Amendment to the Constitution that And in 1789, the Senate deleted one clause is inconsistent with existing Supreme Court explicitly defining the militia as ‘‘composed tect and defend the Constitution. It precedent, as expressed in United States v. of the body of the people.’’ In excising this also flows from our obligation to en- Miller (307 U.S. 174 (1939)). phrase, the Senate gave ‘‘militia’’ a narrower sure that taxpayer dollars are not mis- meaning than it otherwise had, thereby used. The American people should not [From the New York Times, May 12, 2002] making the Ashcroft interpretation harder be forced to pay taxes to support an A FAULTY RETHINKING OF THE 2ND to sustain. unreasonable interpretation of the Sec- AMENDMENT Advocates of the individual right respond to these objections in three ways. ond Amendment that is not only incon- (By Jack Rakove) They argue, first that when Americans sistent with constitutional law, but STANFORD, CA.—The Bush administration used the word militia, they ordinarily meant that threatens to undermine legisla- has found a constitutional right it wants to the entire adult male population capable of tion needed to reduce gun violence and expand. Attorney General John D. Ashcroft bearing arms. But Article I of the Constitu- to save lives. attracted only mild interest a year ago when tion defines the militia as an institution In 1998, more than 30,000 Americans he told the National Rifle Association, ‘‘The under the joint regulation of the national died from firearm-related deaths. That text and original intent of the Second and state governments, and the debates of Amendment clearly protect the right of indi- is almost as many as the number of 1787–89 do not demonstrate that the framers viduals to keep and bear firearms.’’ believed that the militia should forever by Americans who died in the entire Ko- Now, briefs just filed by Solicitor General synonymous with the entire population. rean War. In my view, there is much Theodore Olson in two cases currently being A second argument revolves around the that Congress needs to do to reduce appealed to the Supreme Court indicate that definition of ‘‘the people.’’ Those on the

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.216 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2343 N.R.A. side believe ‘‘the people’’ means ‘‘all guarantees individual rights, permit ‘‘rea- By Mr. BINGAMAN (for himself, persons.’’ But in Article I we also read that sonable restrictions’’? And where does its Mr. CRAIG, Mrs. LINCOLN, and the people will elect the House of Represent- protection exempt firearms that might be Mr. COCHRAN): atives—and the determination of who can well suited for crime? S. 365. A bill to amend title 23, vote will be left to state law, in just the way Mr. Ashcroft has compared the gun owner- that militia service would remain subject to ship right with the First Amendment’s pro- United States Code, to establish a pro- Congressional and state regulation. tection of speech—which can be limited only gram to make allocations to States for The third argument addresses the critical in a fashion narrowly tailored to accomplish projects to expand 2-lane highways in phrase deleted in the Senate. Rather than compelling state interests. If that’s the rural areas to 4-lane highways; to the concede that the Senate knew what it was model, most federal gun laws would sooner Committee on Environment and Public doing, these commentators contend that the or later fall. After all, it would not be con- Works. deletion was more a matter of careless edit- stitutional to subject someone to a back- Mr. BINGAMAN. Mr. President, I rise ground check before permitting him to wor- ing. today with my colleague, the distin- This argument is faulty because legal in- ship or to make a political speech. If gun terpretation generally assumes that law- ownership is truly a parallel right, why guished senior Senator from Idaho, makers act with clear purpose. More impor- would the Brady background check be con- Senator CRAIG, to introduce the Rural tant, the Senate that made this critical dele- stitutional? Four-Lane Highway Safety and Devel- tion was dominated by Federalists who were The Justice Department traditionally errs opment Act of 2003. We are pleased to skeptical of the milita’s performance during on the other side—arguing for constitutional be joined by Senators LINCOLN and the Revolutionary War and opposed to the interpretations that increase congressional flexibility and law enforcement policy op- COCHRAN in sponsoring the bill. idea that the future of American defense lay The purpose of this bipartisan legis- with the militia rather than a regular army. tions. The great weight of judicial precedent holds that there is no fundamental indi- lation is to ensure that States have the They had sound reasons not to commit the resources they need to upgrade major national government to supporting a mass vidual right to own a gun. Staking out a con- militia, and thus to prefer a phrasing imply- trary position may help ingratiate the Bush two-lane roads across the Nation to ing that the militia need not embrace the en- administration to the gun lobby. But it high-quality four-lane divided high- tire adult male population if Congress had greatly disserves the interests of the United ways. The goals of this bill are to im- good reason to require otherwise. The evi- States. prove the safety of our most dangerous dence of text and history makes it very hard [From the New York Times, May 14, 2002] highways and to stimulate economic to argue for an expansive individual right to AN OMINOUS REVERSAL ON GUN RIGHTS development in rural areas. keep arms. Using a footnote in a set of Supreme Court I think most Senators would agree There is one striking curiosity to the Bush that the Dwight D. Eisenhower Na- administration’s advancing its position at briefs, Attorney General John Ashcroft an- this time. Advocates of the individual-right nounced a radical shift last week in six dec- tional System of Interstate and De- interpretation typically argue that an armed ades of government policy toward the rights fense Highways is one of the transpor- populace is the best defense against the tyr- of Americans to own guns. Burying the tation marvels of the 20th century. The anny of our own government. And yet the change in fine print cannot disguise the omi- system’s 46,000 miles of divided high- Bush administration seems quite willing to nous implications for law enforcement or ways interconnect virtually every compromise essential civil liberties in the Mr. Ashcroft’s betrayal of his public duty. The footnote declares that, contrary to major urban area in the Nation. The name of security. It is sobering to think that longstanding and bipartisan interpretation system represents one of the most effi- the constitutional right the administration of the Second Amendment, the Constitution cient and safest highway systems in values so highly is the right to bear arms, ‘‘broadly protects the rights of individuals’’ that peculiar product of an obsolete debate the world. to own firearms. This view and the accom- over the danger of standing armies—and this Unfortunately, when the Interstate panying legal standard Mr. Ashcroft has sug- at a time when our standing army is the System was planned, it left many rural gested—equating gun ownership with core most powerful the world has known. communities and smaller urban areas free speech rights—could make it extremely without direct links to the high-qual- [From the Washington Post, May 10, 2002] difficult for the government to regulate fire- arms, as it has done for decades. That posi- ity transportation network that the GUNS AND JUSTICE tion comports with Mr. Ashcroft’s long-held interstate highways provide. Many of The U.S. Solicitor General has a duty to personal opinion, which he expressed a year these smaller and rural communities defend acts of Congress before the Supreme ago in a letter to his close allies at the Na- continue to suffer economically be- Court. This week, Solicitor General Ted tional Rifle Association. But it is a position cause of the lack of high-quality four- Olson—and by extension his bosses, Attorney at odds with both history and the Constitu- lane highways. General John Ashcroft and President Bush— tion’s text. As the Supreme Court correctly To address this issue, in 1995 Con- took a position regarding guns that will un- concluded in a 1939 decision that remains the gress developed the concept of a Na- dermine that mission. key legal precedent on the subject, the Sec- Historically, the Justice Department has ond Amendment protects only those rights tional Highway System as a way of ex- adopted a narrow reading of the Constitu- that have ‘‘some reasonable relationship to tending the benefits of an efficient tion’s Second Amendment, which states that the preservation of efficiency of a well-regu- highway network to all areas of the ‘‘a well regulated militia being necessary to lated militia.’’ By not viewing the amend- country. Congress designated the Na- the security of a free state, the right of the ment as a basic, individual right, this deci- tional Highway System to help focus people to keep and bear arms shall not be in- sion left room for broad gun ownership regu- Federal resources on the Nation’s most fringed.’’ Along with nearly all courts in the lation. The footnote is also at odds with Mr. important roads. past century, it has read that as protecting Ashcroft’s pledge at his confirmation hear- Today there are about 160,000 miles only the public’s collective right to bear ing that his personal ideology would not on the National Highway System, in- arms in the context of militia service. Now drive Justice Department legal policies. the administration has reversed this view. In It is hard to take seriously Mr. Ashcroft’s cluding all of the interstate highways a pair of appeals, Mr. Olson contends that assertion that the Bush administration re- and all other routes that are important ‘‘the Second Amendment more broadly pro- mains committed to the vigorous defense to the Nation’s economy, defense, and tects the rights of individuals, including per- and enforcement of all federal gun laws. Mr. general mobility. The NHS comprises sons who are not members of any militia . . . Ashcroft, after all, is an official whose devo- only 4 percent of the Nation’s roads, to possess and bear their own firearms.’’ Mr. tion to the gun lobby extends to granting its but carries more than 40 percent of all Ashcroft insists the department remains pre- request to immediately destroy records of highway traffic, 75 percent of heavy pared to defend all federal gun laws. Having gun purchases amassed in the process of con- given away its strongest argument, however, ducting Brady law background checks even truck traffic and 90 percent of tourist it will be doing so with its hands tied behind though they might be useful for tracking traffic. its back. weapons purchases by suspected terrorists. The NHS reaches nearly every part of Laws will now be defended not as presump- The immediate effect of the Bush Justice the Nation. According to the Federal tively valid but as narrow exceptions to a Department’s expansive reading of the Sec- Highway Administration, about 90 per- broad constitutional right—one subject, as ond Amendment is to undermine law en- cent of America’s population lives Mr. Olson put it, only to ‘‘reasonable restric- forcement by calling into question valuable within 5 miles of an NHS route. All tions designed to prevent possession by unfit state and federal gun restrictions on the urban areas with a population of more persons or to restrict the possession of types books, and by handing dangerous criminals a of firearms that are particularly suited to potent new weapon for challenging their con- than 50,000, and 93 percent with a popu- criminal misuse.’’ This may sound like a victions. What it all adds up to is a gift to lation of between 5,000 and 50,000, are common-sense balancing act. But where ex- pro-gun extremists, and a shabby deal for ev- within 5 miles of the NHS. Counties actly does the Second Amendment, if it eryone else. with NHS highways have 99 percent of

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.080 S12PT2 S2344 CONGRESSIONAL RECORD — SENATE February 12, 2003 all jobs, including 99 percent of all most important two-lane rural NHS funding to States to upgrade existing manufacturing jobs, 97 percent of min- roads to four-lane highways. According two-lane roads in rural areas to safe ing jobs, and 93 percent of agricultural to a recent GAO study, over two-thirds and efficient four-lane divided high- jobs. of all Federal highway funding between ways. The States would determine The NHS is the critical transpor- 1992 and 2000 has gone either to roads in which two-lane roads they wanted to tation link for most of our Nation’s urban areas or to interstate highways. upgrade. To be eligible for funding, the rural areas. The Federal Highway Ad- Consequently, there is a continuing highway must be on the National High- ministration estimates that, of the shortfall in Federal highway funding way System or a congressionally des- 160,000 miles now on the National High- needed to upgrade the most important ignated High Priority Corridor. Our way System, fully 75 percent, or 119,000 rural two-lane roads. Our bill will help bill gives funding priority to upgrading miles, are in rural areas. Of the 1.2 tril- address the shortfall so that more rural the most dangerous two-lane highways, lion total vehicle miles traveled in 2000 segments of the NHS can be improved routes most affected by increased traf- on NHS roads, about 60 percent were in to four-lane divided highways. fic as a result of NAFTA, highways rural areas. As in many States, New Mexico’s that have high levels of commercial I hope all Senators will agree that rural counties strongly believe their traffic, and projects that will help improving highway safety should be economic future depends on access to stimulate regional economic growth. our top priority. When it comes to safe and efficient four-lane highways. Total funding for six years is $1.8 bil- highway safety, the fact is that travel Basic transportation infrastructure is lion from the highway trust fund. on four-lane roads is safer than two- one of the critical elements for compa- My State bears a substantial burden lane roads. This is especially true in nies choosing where to locate. Truck in the maintenance and upgrading of rural areas. According to the Bureau of drivers and the traveling public prefer its portion of critical national high- Transportation Statistics, in 1998 the the safety and efficiency of a four-lane ways. New Mexico has 3.3 percent of rate of traffic fatalities on all rural divided highway. the Nation’s land area, but only 6 roads was 2.39 per 100-million vehicle Thus one of the top priorities for tenths of one percent of the population. miles; however, the rate on rural inter- rural cities and counties in my State is We have 2.2 percent of all of the inter- state highways was half as high—only to complete the four-lane upgrade of state highway miles and 1.7 percent of 1.23 per 100 million vehicle-miles. such key routes as US54 from Tularosa all other NHS miles. At the same time, The reason for the lower fatality rate to Nara Visa, US62/180 from Carlsbad to as a border State, New Mexico is com- on rural interstate highways should be the Texas state line, US64/87 from Clay- mon route for trucks crossing the bor- obvious. When a road has only one lane ton to Raton, and US666 from north of der with Mexico and heading to or com- in each direction, trucks and other Gallup to Shiprock. These two-lane ing from the east and west coasts. It is slow-moving vehicles increase the haz- rural routes in New Mexico not only likely that the upgrading to four lanes ard of passing. Vehicles turning on or bear some of the State’s heaviest truck of the most important NHS highways off a two-lane road can also increase and automobile traffic, but also are risk. A divided four-lane highway in New Mexico might not occur with- some of the State’s most dangerous greatly reduces these perils. out the supplemental funding provided Of the 119,000 miles of rural NHS roads. In fact, US666 is considered one in my bill. roads, about 33,000 miles are inter- of the most dangerous two-lane high- I continue to believe strongly in the states and another 28,000 miles have ways in the Nation. important role of highway infrastruc- been upgraded to four or more lanes. New Mexico is not alone among west- ture to economic development. Even in The remaining 58,000 miles—more than ern states in needing to upgrade two- this age of the so-called ‘‘new’’ econ- half of this rural highway network— lane roads on the National Highway omy and high-speed digital commu- are still only two-lane roads with no System. For example, Texas has al- nications, roads continue to link our central divider. These are the most most 3,500 miles of rural two-lane NHS communities together and to carry the dangerous roads on the National High- roads. Montana has 2,469 miles, Kansas commercial goods and products our way System. has 2,293, Nebraska 1,964, Wyoming citizens need. Safe and efficient high- In my State of New Mexico, we have 1,924, Minnesota 1,897, and Missouri ways are especially important to citi- made some progress toward upgrading 1,853 miles. zens in the rural parts of our country. our rural two-lane highways to four In the East, where States are small- I recognize that the funding level in lanes. In recent years, US550 from er, many NHS routes remain only two this bill is inadequate to upgrade all of Bernalillo to Bloomfield, US285 from lanes. In Vermont, 78 percent of rural the remaining two-lane routes on the Interstate 40 to Carlsbad, and a key NHS roads are only two lanes, in New NHS in the next six years. Upgrading segment of US54 from El Paso to Hampshire it’s 84 percent and 99 per- an existing two-lane road to a full four- Alamogordo have been widened to four cent in Maine. lane divided highway can cost upward lanes. In addition, upgrading of US70 I do believe it is time Congress took of one million dollars per mile. from Las Cruces to Clovis is nearly action to improve the safety of trav- Moreover, some of the existing two- completed. But much more remains to elers on the highest priority rural two- lane roads probably don’t have suffi- be done. lane roads. Last year, I secured nearly cient traffic to justify upgrading at New Mexico has 2,647 miles of rural $1 million in Federal funding to begin this time. In addition, some two-lane roads in the NHS. Eight hundred and the upgrade of US64/87 between Clayton NHS routes pass through scenic areas ninety-two of these NHS miles are and Raton, which is part of the Ports- where it may not be appropriate to up- interstates. Of the balance of New to-Plains High Priority Corridor on the grade to four lanes. However, I do be- Mexico’s NHS highways, 1,755 miles are National Highway System. lieve the funding in this bill will take in the rural parts of my State, espe- In addition, last week Senator ROB- us a long way toward ensuring the cially Chaves, Colfax, Eddy, Lincoln, ERTS and I introduced S. 290, which des- most critical projects are completed in Guadalupe, Otero, Quay, San Juan, and ignates U.S. Highway 54 from El Paso, the next six years. Union Counties. And almost 70 per- Texas, through New Mexico, Texas, and This year Congress will take up the cent—1,217 miles—of New Mexico’s Oklahoma to Wichita, Kansas, as the reauthorization of the comprehensive rural NHS highways remain only two- SPIRIT High Priority Corridor. Our bi- six-year transportation bill, TEA–21. lane roads. These two-lane roads are partisan bill has four cosponsors. A We are introducing this bipartisan bill major transportation routes with high-priority corridor designation pro- today to help ensure that the issue of heavy truck and commercial traffic. In vides no additional Federal funding, the safety of rural two-lane NHS routes 2000, a total of 10.3 billion vehicle miles but helps focus attention on the need receives the attention it deserves as were traveled on New Mexico’s NHS to upgrade the nation’s major two-lane the debate on reauthorization begins. I highways, and about one quarter, or 2.7 routes. look forward to working with the billion miles, were traveled on these The purpose of the bill we are intro- chairman of the Environment and Pub- rural NHS roads. ducing today, the Rural Four-Lane lic Works Committee, Senator INHOFE, Unfortunately, there are only very Highway Safety and Development Act and Senator JEFFORDS, the ranking limited funds available to upgrade the of 2003, is to provide direct Federal member, as well as Senators BOND and

VerDate Jan 31 2003 01:23 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.218 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2345 REID of the Transportation, Infrastruc- is amended by inserting after the item relat- sugar maple, and other species are be- ture and Nuclear Safety Sub- ing to section 138 the following: coming more and more immune-com- committee, to find a way to ensure ad- ‘‘139. Rural 4-lane highway development pro- promised. ditional federal resources are in place gram.’’. The Hubbard Brook Research Foun- to hasten the work of upgrading rural dation says we must reduce sulfur diox- two-lane NHS roads to safe, efficient By Mr. JEFFORDS (for himself, ide emissions by 80 percent from cur- four-lane divided highways. Ms. COLLINS, Mr. LIBBERMAN, rent Clean Air Act requirements to I ask unanimous consent that the Ms. SNOWE, Mr. SCHUMER, Mr. begin biological recovery mid-century text of the bill be printed in the BIDEN, Mrs. BOXER, Mrs. CLIN- in the Northeastern U.S. That means RECORD. TON, Mr. CORZINE, Mr. DODD, bringing emissions way down now, not There being no objection, the bill was Mr. EDWARDS, Mr. FEINGOLD, prolonging the wait for healthy trees ordered to be printed in the RECORD, as Mrs. FEINSTEIN, Mr. KENNEDY, and lakes. follows: Mr. KERRY, Mr. LAUTENBERG, Coal-fired power plants emit the bulk S. 365 Mr. LEAHY, Mr. REED, Mr. SAR- of the uncontrolled mercury emissions Be it enacted by the Senate and House of Rep- BANES, and Mr. WYDEN): in the U.S. Mercury is a potent neuro- resentatives of the United States of America in S. 366. A bill to amend the Clean Air toxic pollutant. It contaminates fish Congress assembled, Act to reduce emissions from electric causing fish consumption warnings in SECTION 1. SHORT TITLE. powerplants, and for other purposes; to 41 States. And mercury puts over 60,000 This Act may be cited as the ‘‘Rural Four- the Committee on Environment and Lane Highway Safety and Development Act children at risk of negative develop- Public Works. mental effects due to fetal exposure. of 2003’’. Mr. JEFFORDS. Mr. President, today SEC. 2. RURAL 4-LANE HIGHWAY DEVELOPMENT Despite our international commit- PROGRAM. I am pleased to introduce the Clean ment to reduce greenhouse gas emis- (a) IN GENERAL.—Title 23, United States Power Act of 2003 along with 19 of my sions to 1990 levels through voluntary Code, is amended by inserting after section colleagues, Republicans and Demo- means, we have failed. In particular, 138 the following: crats. That is a fifth of the Senate on power sector emissions of carbon diox- ‘‘§ 139. Rural 4-lane highway development record supporting a measure which dra- ide, a major greenhouse gas, have in- program matically reduces emissions of four creased by more than 25 percent since ‘‘(a) DEFINITIONS.—In this section: pollutants coming from power plants— 1990. This failure increases the risks ‘‘(1) 2-LANE HIGHWAY.—The term ‘2-lane sulfur dioxide, nitrogen oxides, carbon highway’ means a highway that has not from global warming. dioxide and mercury. It is plainly obvious that we must more than 1 lane of traffic in each direction. These pollutants create or contribute ‘‘(2) 4-LANE HIGHWAY.—The term ‘4-lane make swift and major reductions in highway’ means a highway that has 2 lanes to smog, soot, acid rain, mercury con- these pollutants for the sake of public of traffic in each direction. tamination and global warming. They health, the environment, and the ‘‘(b) ESTABLISHMENT OF PROGRAM.—The cause death, disease, ecological deg- world’s climate. Without quick action, Secretary shall establish and carry out a radation, birth defects, and increase the nation’s fleet of fossil power plants program to make allocations to States for the risk of abrupt and unwelcome cli- will continue to inefficiently belch out projects, consisting of planning, design, envi- mate changes. millions of tons of harmful pollutants. ronmental review, and construction, to ex- The nation has made some impres- pand eligible 2-lane highways in rural areas The Clean Power Act of 2003 will to 4-lane highways. sive strides in reducing air pollution mainly use the largely successful cap- ‘‘(c) APPLICATIONS.—To be eligible to re- since 1990. But there is a lot of unfin- and-trade system in the 1990 Clean Air ceive an allocation under this section, a ished business, a fact confirmed every Act Amendments to make quick and State shall submit to the Secretary an appli- day by more and ever better science. cost-effective reductions in these pol- cation at such time, in such form, and con- Power plants are still the nation’s lutants. At the same time, this bill taining such information as the Secretary single largest source of air pollution, does not abolish or eliminate any of may require. including greenhouse gases. They are ‘‘(d) ELIGIBLE HIGHWAYS.—The Secretary the vital local and regional air quality may make allocations under this section responsible for 60 percent or more of protection programs in the Clean Air only for projects to expand 2-lane highways national sulfur dioxide emissions, 25 Act. Our bill reduces emissions of sul- that are on— percent of nitrogen oxides, 40 percent fur dioxide by 81 percent from 2000. Ni- ‘‘(1) the National Highway System; or of carbon dioxide, and about 45 tons of trogen oxides will be reduced by 71 per- ‘‘(2) a high priority corridor identified mercury annually. cent from 2000. And carbon dioxide will under section 1105(c) of the Intermodal Sur- Fine particulate matter coming from be capped at 21 percent below 2000 lev- face Transportation Efficiency Act of 1991 power plants, mainly through SO and (105 Stat. 2032). X els. Mercury will be controlled to 90 ‘‘(e) PRIORITY IN SELECTION.—In making al- NOX emissions, is causing or contrib- percent below 1999 levels. locations under this section, the Secretary uting to the premature deaths of ap- This bill has a hybrid allocation sys- shall give priority to— proximately 30,000 people. tem for distributing the allowances for ‘‘(1) projects to improve highway safety on More than 130 million people are liv- the three capped and tradable pollut- the most dangerous rural 2-lane highways on ing in areas with unhealthy air. ants (NOX, SOX, CO2). Most allocations, the National Highway System; Ground-level ozone triggers over 6.2 about 2⁄3, go to households and con- ‘‘(2) projects carried out on rural highways million asthma attacks each summer with respect to which the annual volume of sumers. The rest go to renewable en- commercial vehicle traffic— in the eastern United States alone, and ergy, energy efficiency, and other cat- ‘‘(A) has increased since the date of enact- some studies show that it may actually egories. This system rewards cleaner ment of the North American Free Trade cause asthma. Another 160,000 people power producers and ensures that the Agreement Implementation Act (107 Stat. are sent to emergency rooms due to public gets compensated for the pol- 2057); or smog-induced respiratory illness. luters’ use of the atmosphere. ‘‘(B) is expected to increase after the date Power plants are significant contribu- Our bill is intended to save the lives of enactment of this section; tors to this air quality degradation, as that are now being lost prematurely to ‘‘(3) projects carried out on rural highways well as causing major reductions in vis- lung disease and other illnesses. We with high levels of commercial truck traffic; and ibility in our national parks and wild want to continue on the path set in ‘‘(4) projects on highway corridors that places. The National Park Service 1990 of reducing acid rain. will help stimulate regional economic posts air quality warning signs for We want certainty that mercury will growth and development in rural areas. hikers in the Great Smoky Mountains no longer threaten unborn children and ‘‘(f) AUTHORIZATION OF APPROPRIATIONS.— every other day on average during the the future environment will be safer There is authorized to be appropriated from high ozone season. and cleaner for them when they are the Highway Trust Fund (other than the Acid rain continues to fall on the grown. Mass Transit Account) to carry out this sec- Northeast, and the Southeast, dam- Certainty is a valuable commodity. tion $300,000,000 for each of fiscal years 2004 through 2009.’’. aging sensitive ecosystems and Industry witnesses have testified that (b) CONFORMING AMENDMENT.—The analysis acidifying lakes and streams. In my certainty is critical to their invest- for chapter 1 of title 23, United States Code, state of Vermont, the red spruce, the ment strategies. Our bill provides a

VerDate Jan 31 2003 01:47 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.219 S12PT2 S2346 CONGRESSIONAL RECORD — SENATE February 12, 2003 clear signal on exactly what is ex- emitted by powerplants across the United ‘‘(2) ELECTRICITY GENERATING FACILITY.— pected of pollution sources and when. States, despite the success of Public Law The term ‘electricity generating facility’ I want certainty that the promise of 101–549 (commonly known as the ‘Clean Air means an electric or thermal electricity gen- the Clean Air Act will be delivered to Act Amendments of 1990’) (42 U.S.C. 7401 et erating unit, a combination of such units, or seq.) in reducing emissions; all Americans. a combination of 1 or more such units and 1 ‘‘(2) according to the most reliable sci- or more combustion devices, that— At the Environment and Public entific knowledge, acid rain precursors must ‘‘(A) has a nameplate capacity of 15 Works Committee, we have heard many be significantly reduced for the ecosystems megawatts or more (or the equivalent in times that technologies are readily of the Northeast and Southeast to recover thermal energy generation, determined in available to meet the challenges in our from the ecological harm caused by acid dep- accordance with a methodology developed by bill. And that these challenges can be osition; the Administrator); met in a cost-effective manner that al- ‘‘(3) because lakes and sediments across ‘‘(B) generates electric energy, for sale, lows our economy to prosper and im- the United States are being contaminated by through combustion of fossil fuel; and prove public health. mercury emitted by powerplants, there is an ‘‘(C) emits a covered pollutant into the at- increasing risk of mercury poisoning of mosphere. We can’t afford to slow down progress aquatic habitats and fish-consuming human on achieving better air quality and we ‘‘(3) ELECTRICITY INTENSIVE PRODUCT.—The populations; term ‘electricity intensive product’ means a must start to make real progress in re- ‘‘(4)(A) electricity generation accounts for product with respect to which the cost of ducing greenhouse gas emissions. The approximately 40 percent of the total emis- electricity consumed in the production of voluntary approach has failed for 12 sions in the United States of carbon dioxide, the product represents more than 5 percent years now and we must do better. a major greenhouse gas causing global warm- of the value of the product. As Senators may know, when I was ing; and ‘‘(4) EMISSION ALLOWANCE.—The term Chairman of the Senate Environment ‘‘(B) the quantity of carbon dioxide in the ‘emission allowance’ means a limited au- atmosphere is growing without constraint thorization to emit in accordance with this and Public Works Committee, we ap- and well beyond the international commit- proved a bill nearly identical to the title— ments of the United States; ‘‘(A) 1 ton of sulfur dioxide; bill that we are introducing today. The ‘‘(5) the cumulative impact of powerplant ‘‘(B) 1 ton of nitrogen oxides; or only significant difference is that the emissions on public and environmental ‘‘(C) 1 ton of carbon dioxide. deadline for compliance with all the health must be addressed swiftly by reducing ‘‘(5) ENERGY EFFICIENCY PROJECT.—The pollution caps except mercury have those harmful emissions to levels that are term ‘energy efficiency project’ means any been moved later by one year. Mercury less threatening; and specific action (other than ownership or op- still follows the schedule in the con- ‘‘(6)(A) the atmosphere is a public resource; eration of an energy efficient building) com- and sent decree which requires compliance menced after the date of enactment of this ‘‘(B) emission allowances, representing title— by 2008. permission to use that resource for disposal I look forward to entering into seri- ‘‘(A) at a facility (other than an electricity of air pollution from electricity generation, generating facility), that verifiably reduces ous discussions with the Administra- should be allocated to promote public pur- the annual electricity or natural gas con- tion on signing into law good, com- poses, including— sumption per unit output of the facility, as prehensive four-pollutant legislation. ‘‘(i) protecting electricity consumers from compared with the annual electricity or nat- However, their actions so far on air adverse economic impacts; ural gas consumption per unit output that quality matters have not fostered an ‘‘(ii) providing transition assistance to ad- would be expected in the absence of an allo- atmosphere of trust and cooperation. versely affected employees, communities, cation of emission allowances (as determined and industries; and by the Administrator); or I ask unanimous consent that a brief ‘‘(iii) promoting clean energy resources summary of the legislation and the ‘‘(B) by an entity that is primarily engaged and energy efficiency. in the transmission and distribution of elec- text of the bill be printed in the ‘‘SEC. 702. PURPOSES. tricity, that significantly improves the effi- RECORD. ‘‘The purposes of this title are— ciency of that type of entity, as compared There being no objection, the mate- ‘‘(1) to alleviate the environmental and with standards for efficiency developed by rial was ordered to be printed in the public health damage caused by emissions of the Administrator, in consultation with the RECORD, as follows: sulfur dioxide, nitrogen oxides, carbon diox- Secretary of Energy, after the date of enact- S. 366 ide, and mercury resulting from the combus- ment of this title. tion of fossil fuels in the generation of elec- Be it enacted by the Senate and House of Rep- ‘‘(6) ENERGY EFFICIENT BUILDING.—The term tric and thermal energy; resentatives of the United States of America in ‘energy efficient building’ means a residen- ‘‘(2) to reduce by 2009 the annual national Congress assembled, tial building or commercial building com- emissions from electricity generating facili- pleted after the date of enactment of this SECTION 1. SHORT TITLE. ties to not more than— title for which the projected lifetime con- This Act may be cited as the ‘‘Clean Power ‘‘(A) 2,250,000 tons of sulfur dioxide; sumption of electricity or natural gas for Act of 2003’’. ‘‘(B) 1,510,000 tons of nitrogen oxides; and heating, cooling, and ventilation is at least SEC. 2. ELECTRIC ENERGY GENERATION EMIS- ‘‘(C) 2,050,000,000 tons of carbon dioxide; 30 percent less than the lifetime consump- SION REDUCTIONS. ‘‘(3) to reduce by 2008 the annual national tion of a typical new residential building or (a) IN GENERAL.—The Clean Air Act (42 emissions of mercury from electricity gener- commercial building, as determined by the U.S.C. 7401 et seq.) is amended by adding at ating facilities to not more than 5 tons; Administrator (in consultation with the Sec- the end the following: ‘‘(4) to effectuate the reductions described retary of Energy)— ‘‘TITLE VII—ELECTRIC ENERGY in paragraphs (2) and (3) by— ‘‘(A) on a State or regional basis; and GENERATION EMISSION REDUCTIONS ‘‘(A) requiring electricity generating facili- ‘‘(B) taking into consideration— ‘‘Sec. 701. Findings. ties to comply with specified emission limi- ‘‘(i) applicable building codes; and ‘‘Sec. 702. Purposes. tations by specified deadlines; and ‘‘(ii) consumption levels achieved in prac- ‘‘Sec. 703. Definitions. ‘‘(B) allowing electricity generating facili- tice by new residential buildings or commer- ‘‘Sec. 704. Emission limitations. ties to meet the emission limitations (other cial buildings in the absence of an allocation ‘‘Sec. 705. Emission allowances. than the emission limitation for mercury) of emission allowances. ‘‘Sec. 706. Permitting and trading of through an alternative method of compli- ‘‘(7) ENERGY EFFICIENT PRODUCT.—The term emission allowances. ance consisting of an emission allowance and ‘energy efficient product’ means a product ‘‘Sec. 707. Emission allowance alloca- transfer system; and manufactured after the date of enactment of tion. ‘‘(5) to encourage energy conservation, use this title that has an expected lifetime elec- ‘‘Sec. 708. Mercury emission limitations. of renewable and clean alternative tech- tricity or natural gas consumption that— ‘‘Sec. 709. Other hazardous air pollut- nologies, and pollution prevention as long- ‘‘(A) is less than the average lifetime elec- ants. range strategies, consistent with this title, tricity or natural gas consumption for that ‘‘Sec. 710. Effect of failure to promulgate for reducing air pollution and other adverse type of product; and regulations. impacts of energy generation and use. ‘‘(B) does not exceed the lesser of— ‘‘Sec. 711. Prohibitions. ‘‘SEC. 703. DEFINITIONS. ‘‘(i) the maximum energy consumption ‘‘Sec. 712. Modernization of electricity ‘‘In this title: that qualifies for the applicable Energy Star generating facilities. ‘‘(1) COVERED POLLUTANT.—The term ‘cov- label for that type of product; or ‘‘Sec. 713. Relationship to other law. ered pollutant’ means— ‘‘(ii) the average energy consumption of ‘‘SEC. 701. FINDINGS. ‘‘(A) sulfur dioxide; the most efficient 25 percent of that type of ‘‘Congress finds that— ‘‘(B) any nitrogen oxide; product manufactured in the same year. ‘‘(1) public health and the environment ‘‘(C) carbon dioxide; and ‘‘(8) LIFETIME.—The term ‘lifetime’ continue to suffer as a result of pollution ‘‘(D) mercury. means—

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.084 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2347 ‘‘(A) in the case of a residential building under subsection (a) shall authorize emis- ‘‘(ii) shall not be available to meet any ob- that is an energy efficient building, 30 years; sions of covered pollutants in excess of the ligations of the United States. ‘‘(B) in the case of a commercial building national emission limitations established ‘‘(c) IDENTIFICATION AND USE.— that is an energy efficient building, 15 years; under that subsection for a year to the ex- ‘‘(1) IN GENERAL.—Each emission allowance and tent that the number of tons of the excess allocated by the Administrator shall bear a ‘‘(C) in the case of an energy efficient prod- emissions is less than or equal to the number unique serial number, including— uct, a period determined by the Adminis- of emission allowances that are— ‘‘(A) an identifier of the covered pollutant trator to be the average life of that type of ‘‘(1) used in the year; but to which the emission allowance pertains; energy efficient product. ‘‘(2) allocated for any previous year under and ‘‘(9) MERCURY.—The term ‘mercury’ in- section 707. ‘‘(B) the first year for which the allowance cludes any mercury compound. ‘‘(c) REDUCTIONS.—For 2009 and each year may be used. ‘‘(10) NEW CLEAN FOSSIL FUEL-FIRED ELEC- thereafter, the quantity of emissions speci- ‘‘(2) SULFUR DIOXIDE EMISSION ALLOW- TRICITY GENERATING UNIT.—The term ‘new fied for each covered pollutant in subsection ANCES.—In the case of sulfur dioxide emis- clean fossil fuel-fired electricity generating (a) shall be reduced by the sum of— sion allowances, the Administrator shall en- unit’ means a unit that— ‘‘(1) the number of tons of the covered pol- sure that the emission allowances allocated ‘‘(A) has been in operation for 10 years or lutant that were emitted by small electricity to electricity generating facilities in the less; and generating facilities in the second preceding western region are distinguishable from ‘‘(B) is— year; and emission allowances allocated to electricity ‘‘(i) a natural gas fired generator that— ‘‘(2) any number of tons of reductions in generating facilities in the nonwestern re- ‘‘(I) has an energy conversion efficiency of emissions of the covered pollutant required gion. at least 55 percent; and under section 705(h). ‘‘(3) YEAR OF USE.—Each emission allow- ‘‘(II) uses best available control technology ‘‘SEC. 705. EMISSION ALLOWANCES. ance may be used in the year for which the (as defined in section 169); ‘‘(a) CREATION AND ALLOCATION.— emission allowance is allocated or in any ‘‘(ii) a generator that— ‘‘(1) IN GENERAL.—For 2009 and each year subsequent year. ‘‘(I) uses integrated gasification combined thereafter, subject to paragraph (2), there ‘‘(d) ANNUAL SUBMISSION OF EMISSION AL- cycle technology; are created, and the Administrator shall al- ‘‘(II) uses best available control technology locate in accordance with section 707, emis- LOWANCES.— (as defined in section 169); and sion allowances as follows: ‘‘(1) IN GENERAL.—On or before April 1, 2010, ‘‘(III) has an energy conversion efficiency ‘‘(A) In the case of sulfur dioxide— and April 1 of each year thereafter, the of at least 45 percent; or ‘‘(i) 275,000 emission allowances for each owner or operator of each electricity gener- ‘‘(iii) a fuel cell operating on fuel derived year for use in the western region; and ating facility shall submit to the Adminis- from a nonrenewable source of energy. ‘‘(ii) 1,975,000 emission allowances for each trator 1 emission allowance for the applica- ‘‘(11) NONWESTERN REGION.—The term ‘non- year for use in the nonwestern region. ble covered pollutant (other than mercury) western region’ means the area of the States ‘‘(B) In the case of nitrogen oxides, 1,510,000 for each ton of sulfur dioxide, nitrogen ox- that is not included in the western region. emission allowances for each year. ides, or carbon dioxide emitted by the elec- ‘‘(12) RENEWABLE ELECTRICITY GENERATING ‘‘(C) In the case of carbon dioxide, tricity generating facility during the pre- UNIT.—The term ‘renewable electricity gen- 2,050,000,000 emission allowances for each vious calendar year. erating unit’ means a unit that— year. ‘‘(2) SPECIAL RULE FOR OZONE EXCEEDANCES.— ‘‘(A) has been in operation for 10 years or ‘‘(2) REDUCTIONS.—For 2009 and each year less; and thereafter, the number of emission allow- ‘‘(A) IDENTIFICATION OF FACILITIES CONTRIB- ‘‘(B) generates electric energy by means ances specified for each covered pollutant in UTING TO NONATTAINMENT.—Not later than of— paragraph (1) shall be reduced by a number December 31, 2008, and the end of each 3-year ‘‘(i) wind; equal to the sum of— period thereafter, each State, consistent ‘‘(ii) biomass; ‘‘(A) the number of tons of the covered pol- with the obligations of the State under sec- ‘‘(iii) landfill gas; lutant that were emitted by small electricity tion 110(a)(2)(D), shall identify the elec- ‘‘(iv) a geothermal, solar thermal, or pho- generating facilities in the second preceding tricity generating facilities in the State and tovoltaic source; or year; and in other States that are significantly con- ‘‘(v) a fuel cell operating on fuel derived ‘‘(B) any number of tons of reductions in tributing (as determined based on guidance from a renewable source of energy. emissions of the covered pollutant required issued by the Administrator) to nonattain- ‘‘(13) SMALL ELECTRICITY GENERATING FA- under subsection (h). ment of the national ambient air quality standard for ozone in the State. CILITY.—The term ‘small electricity gener- ‘‘(b) NATURE OF EMISSION ALLOWANCES.— ‘‘(B) SUBMISSION OF ADDITIONAL ALLOW- ating facility’ means an electric or thermal ‘‘(1) NOT A PROPERTY RIGHT.—An emission electricity generating unit, or combination allowance allocated by the Administrator ANCES.—In 2009 and each year thereafter, on of units, that— under subsection (a) is not a property right. petition from a State or a person dem- onstrating that the control measures in ef- ‘‘(A) has a nameplate capacity of less than ‘‘(2) NO LIMIT ON AUTHORITY TO TERMINATE fect at an electricity generating facility that 15 megawatts (or the equivalent in thermal OR LIMIT.—Nothing in this title or any other energy generation, determined in accordance provision of law limits the authority of the is identified under subparagraph (A) as sig- with a methodology developed by the Admin- United States to terminate or limit an emis- nificantly contributing to nonattainment of istrator); sion allowance. the national ambient air quality standard for ozone in a State during the previous year ‘‘(B) generates electric energy, for sale, ‘‘(3) TRACKING AND TRANSFER OF EMISSION are inadequate to prevent the significant through combustion of fossil fuel; and ALLOWANCES.— contribution described in subparagraph (A), ‘‘(C) emits a covered pollutant into the at- ‘‘(A) IN GENERAL.—Not later than 1 year mosphere. after the date of enactment of this title, the the Administrator, if the Administrator de- ‘‘(14) WESTERN REGION.—The term ‘western Administrator shall promulgate regulations termines that the electricity generating fa- region’ means the area comprising the to establish an emission allowance tracking cility is inadequately controlled for nitrogen States of Arizona, California, Colorado, and transfer system for emission allowances oxides, may require that the electricity gen- Idaho, Montana, Nevada, New Mexico, Or- of sulfur dioxide, nitrogen oxides, and carbon erating facility submit 3 nitrogen oxide egon, Utah, Washington, and Wyoming. dioxide. emission allowances for each ton of nitrogen oxides emitted by the electricity generating ‘‘SEC. 704. EMISSION LIMITATIONS. ‘‘(B) REQUIREMENTS.—The emission allow- facility during any period of an exceedance ‘‘(a) IN GENERAL.—Subject to subsections ance tracking and transfer system estab- (b) and (c), the Administrator shall promul- lished under subparagraph (A) shall— of the national ambient air quality standard gate regulations to ensure that, during 2009 ‘‘(i) incorporate the requirements of sub- for ozone in the State during the previous and each year thereafter, the total annual sections (b) and (d) of section 412 (except year. emissions of covered pollutants from all that written certification by the transferee ‘‘(3) REGIONAL LIMITATIONS FOR SULFUR DI- electricity generating facilities located in shall not be necessary to effect a transfer); OXIDE.—The Administrator shall not allow— all States does not exceed— and ‘‘(A) the use of sulfur dioxide emission al- ‘‘(1) in the case of sulfur dioxide— ‘‘(ii) permit any entity— lowances allocated for the western region to ‘‘(A) 275,000 tons in the western region; or ‘‘(I) to buy, sell, or hold an emission allow- meet the obligations under this subsection of ‘‘(B) 1,975,000 tons in the nonwestern re- ance; and electricity generating facilities in the non- gion; ‘‘(II) to permanently retire an unused western region; or ‘‘(2) in the case of nitrogen oxides, 1,510,000 emission allowance. ‘‘(B) the use of sulfur dioxide emission al- lowances allocated for the nonwestern region tons; ‘‘(C) PROCEEDS OF TRANSFERS.—Proceeds ‘‘(3) in the case of carbon dioxide, from the transfer of emission allowances by to meet the obligations under this sub- 2,050,000,000 tons; or any person to which the emission allowances section of electricity generating facilities in ‘‘(4) in the case of mercury, 5 tons. have been allocated— the western region. ‘‘(b) EXCESS EMISSIONS BASED ON UNUSED ‘‘(i) shall not constitute funds of the ‘‘(e) EMISSION VERIFICATION, MONITORING, ALLOWANCES.—The regulations promulgated United States; and AND RECORDKEEPING.—

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.081 S12PT2 S2348 CONGRESSIONAL RECORD — SENATE February 12, 2003

‘‘(1) IN GENERAL.—The Administrator shall operator of an electricity generating facil- tricity generating facilities in addition to ensure that Federal regulations, in combina- ity. the reductions required under the other pro- tion with any applicable State regulations, ‘‘(2) CALCULATION OF PENALTY.— visions of this title. are adequate to verify, monitor, and docu- ‘‘(A) IN GENERAL.—Except as provided in ‘‘(i) USE OF CERTAIN OTHER EMISSION AL- ment emissions of covered pollutants from subparagraph (B), the penalty for failure to LOWANCES.— electricity generating facilities. submit emission allowances for covered pol- ‘‘(1) IN GENERAL.—Subject to paragraph (2), ‘‘(2) INVENTORY OF EMISSIONS FROM SMALL lutants as required under subsection (d) shall emission allowances or other emission trad- ELECTRICITY GENERATING FACILITIES.—On or be equal to 3 times the product obtained by ing instruments created under title I or IV before January 1, 2005, the Administrator, in multiplying— for sulfur dioxide or nitrogen oxides shall cooperation with State agencies, shall com- ‘‘(i) as applicable— not be valid for submission under subsection plete, and on an annual basis update, a com- ‘‘(I) the number of tons emitted in excess (d). prehensive inventory of emissions of sulfur of the emission limitation requirement ap- ‘‘(2) EMISSION ALLOWANCES PLACED IN RE- dioxide, nitrogen oxides, carbon dioxide, and plicable to the electricity generating facil- SERVE.— particulate matter from small electricity ity; or ‘‘(A) IN GENERAL.—Except as provided in generating facilities. ‘‘(II) the number of emission allowances subparagraph (B), an emission allowance de- ‘‘(3) MONITORING INFORMATION.— that the owner or operator failed to submit; scribed in paragraph (1) that was placed in ‘‘(A) IN GENERAL.—Not later than 180 days and reserve under section 404(a)(2) or 405 or after the date of enactment of this title, the ‘‘(ii) the average annual market price of through regulations implementing controls Administrator shall promulgate regulations emission allowances (as determined by the on nitrogen oxides, because an affected unit to require each electricity generating facil- Administrator). emitted fewer tons of sulfur dioxide or nitro- ity to submit to the Administrator— ‘‘(B) MERCURY.—In the case of mercury, gen oxides than were permitted under an ‘‘(i) not later than April 1 of each year, the penalty shall be equal to 3 times the emission limitation imposed under title I or verifiable information on covered pollutants product obtained by multiplying— IV before the date of enactment of this title, emitted by the electricity generating facil- ‘‘(i) the number of grams emitted in excess shall be considered to be equivalent to 1⁄4 of ity in the previous year, expressed in— of the emission limitation requirement for an emission allowance created by subsection ‘‘(I) tons of covered pollutants; and mercury applicable to the electricity gener- (a) for sulfur dioxide or nitrogen oxides, re- ‘‘(II) tons of covered pollutants per mega- ating facility; and spectively. watt hour of energy (or the equivalent ther- ‘‘(ii) the average cost of mercury controls ‘‘(B) EMISSION ALLOWANCES RESULTING FROM mal energy) generated; and at electricity generating units that have a ACHIEVEMENT OF NEW SOURCE PERFORMANCE ‘‘(ii) as part of the first submission under nameplate capacity of 15 megawatts or more STANDARDS.—If an emission allowance de- clause (i), verifiable information on covered in all States (as determined by the Adminis- scribed in subparagraph (A) was created and pollutants emitted by the electricity gener- trator). placed in reserve during the period of 2001 ‘‘(g) SIGNIFICANT ADVERSE LOCAL IM- ating facility in 2000, 2001, and 2002, if the through 2008 by the owner or operator of an PACTS.— electricity generating facility was required electricity generating facility through the ‘‘(1) IN GENERAL.—If the Administrator de- to report that information in those years. application of pollution control technology termines that emissions of an electricity ‘‘(B) SOURCE OF INFORMATION.—Information that resulted in the achievement and main- generating facility may reasonably be an- submitted under subparagraph (A) shall be tenance by the electricity generating facil- ticipated to cause or contribute to a signifi- ity of the applicable standards of perform- obtained using a continuous emission moni- cant adverse impact on an area (including toring system (as defined in section 402). endangerment of public health, contribution ance required of new sources under section ‘‘(C) AVAILABILITY TO THE PUBLIC.—The in- to acid deposition in a sensitive receptor 111, the emission allowance shall be valid for formation described in subparagraph (A) area, and other degradation of the environ- submission under subsection (d). shall be made available to the public— ment), the Administrator shall limit the ‘‘SEC. 706. PERMITTING AND TRADING OF EMIS- ‘‘(i) in the case of the first year in which emissions of the electricity generating facil- SION ALLOWANCES. the information is required to be submitted ity as necessary to avoid that impact. ‘‘(a) IN GENERAL.—Not later than 1 year under that subparagraph, not later than 18 ‘‘(2) VIOLATION.—Notwithstanding the after the date of enactment of this title, the months after the date of enactment of this availability of emission allowances, it shall Administrator shall promulgate regulations title; and be a violation of this Act for any electricity to establish a permitting and emission al- ‘‘(ii) in the case of each year thereafter, generating facility to exceed any limitation lowance trading compliance program to im- not later than April 1 of the year. on emissions established under paragraph (1). plement the limitations on emissions of cov- ‘‘(4) AMBIENT AIR QUALITY MONITORING FOR ‘‘(h) ADDITIONAL REDUCTIONS.— ered pollutants from electricity generating SULFUR DIOXIDE AND HAZARDOUS AIR POLLUT- ‘‘(1) PROTECTION OF PUBLIC HEALTH OR WEL- facilities established under section 704. ANTS.— FARE OR THE ENVIRONMENT.—If the Adminis- ‘‘(b) EMISSION ALLOWANCE TRADING WITH ‘‘(A) IN GENERAL.—Beginning January 1, trator determines that the emission levels FACILITIES OTHER THAN ELECTRICITY GENER- 2005, each coal-fired electricity generating necessary to achieve the national emission ATING FACILITIES.— facility with an aggregate generating capac- limitations established under section 704 are ‘‘(1) IN GENERAL.—Subject to paragraph (2) ity of 50 megawatts or more shall, in accord- not reasonably anticipated to protect public and section 705(i), the regulations promul- ance with guidelines issued by the Adminis- health or welfare or the environment (in- gated to establish the program under sub- trator, commence ambient air quality moni- cluding protection of children, pregnant section (a) shall prohibit use of emission al- toring within a 30-mile radius of the coal- women, minority or low-income commu- lowances generated from other emission con- fired electricity generating facility for the nities, and other sensitive populations), the trol programs for the purpose of dem- purpose of measuring maximum concentra- Administrator may require reductions in onstrating compliance with the limitations tions of sulfur dioxide and hazardous air pol- emissions from electricity generating facili- on emissions of covered pollutants from elec- lutants emitted by the coal-fired electricity ties in addition to the reductions required tricity generating facilities established generating facility. under the other provisions of this title. under section 704. ‘‘(B) LOCATION OF MONITORING POINTS.— ‘‘(2) EMISSION ALLOWANCE TRADING.— ‘‘(2) EXCEPTION FOR CERTAIN CARBON DIOX- Monitoring under subparagraph (A) shall in- ‘‘(A) STUDIES.— IDE EMISSION CONTROL PROGRAMS.—The prohi- clude monitoring at not fewer than 2 ‘‘(i) IN GENERAL.—In 2011 and at the end of bition described in paragraph (1) shall not points— each 3-year period thereafter, the Adminis- apply in the case of carbon dioxide emission ‘‘(i) that are at ground level and within 3 trator shall complete a study of the impacts allowances generated from an emission con- miles of the coal-fired electricity generating of the emission allowance trading authorized trol program that limits total carbon dioxide facility; under this title. emissions from the entirety of any industrial ‘‘(ii) at which the concentration of pollut- ‘‘(ii) REQUIRED ASSESSMENT.—The study sector. ants being monitored is expected to be the shall include an assessment of ambient air ‘‘(c) METHODOLOGY.—The program estab- greatest; and quality in areas surrounding electricity gen- lished under subsection (a) shall clearly ‘‘(iii) at which the monitoring shall be the erating facilities that participate in emis- identify the methodology for the allocation most frequent. sion allowance trading, including a compari- of emission allowances, including standards ‘‘(C) FREQUENCY OF MONITORING OF SULFUR son between— for measuring annual electricity generation DIOXIDE.—Monitoring of sulfur dioxide under ‘‘(I) the ambient air quality in those areas; and energy efficiency as the standards relate subparagraph (A) shall be carried out on a and to emissions. continuous basis and averaged over 5-minute ‘‘(II) the national average ambient air ‘‘SEC. 707. EMISSION ALLOWANCE ALLOCATION. periods. quality. ‘‘(a) ALLOCATION TO ELECTRICITY CON- ‘‘(D) AVAILABILITY TO THE PUBLIC.—The re- ‘‘(B) LIMITATION ON EMISSIONS.—If the Ad- SUMERS.— sults of the monitoring under subparagraph ministrator determines, based on the results ‘‘(1) IN GENERAL.—For 2009 and each year (A) shall be made available to the public. of a study under subparagraph (A), that ad- thereafter, after making allocations of emis- ‘‘(f) EXCESS EMISSION PENALTY.— verse local impacts result from emission al- sion allowances under subsections (b) ‘‘(1) IN GENERAL.—Subject to paragraph (2), lowance trading, the Administrator may re- through (f), the Administrator shall allocate section 411 shall be applicable to an owner or quire reductions in emissions from elec- the remaining emission allowances created

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.081 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2349 by section 705(a) for the year for each cov- distribution of emission allowances under ductive use in the previous year by each ered pollutant other than mercury to house- paragraph (1)(A), including as necessary the combined heat and power electricity gener- holds served by electricity. appointment of 1 or more trustees— ating facility; and ‘‘(2) ALLOCATION AMONG HOUSEHOLDS.—The ‘‘(i) to receive the emission allowances al- ‘‘(B) with respect to the previous year, the allocation to each household shall reflect— located under paragraph (1)(A) for the ben- national average quantity (expressed in tons) ‘‘(A) the number of persons residing in the efit of the dislocated workers and commu- of emissions of each such pollutant per Brit- household; and nities; ish thermal unit of thermal energy gen- ‘‘(B) the ratio that— ‘‘(ii) to obtain fair market value for the erated by electricity generating facilities in ‘‘(i) the quantity of the residential elec- emission allowances; and all States. tricity consumption of the State in which ‘‘(iii) to apply the proceeds to providing ‘‘(d) TRANSITION ASSISTANCE TO ELEC- the household is located; bears to transition assistance to the dislocated work- TRICITY GENERATING FACILITIES.— ‘‘(ii) the quantity of the residential elec- ers and communities. ‘‘(1) IN GENERAL.—For 2009 and each year tricity consumption of all States. ‘‘(B) FORM OF TRANSITION ASSISTANCE.— thereafter through 2018, the Administrator ‘‘(3) REGULATIONS.—Not later than 1 year Transition assistance under paragraph (1)(A) shall allocate the percentage specified in after the date of enactment of this title, the may take the form of— paragraph (2) of the emission allowances cre- Administrator shall promulgate regulations ‘‘(i) grants to employers, employer associa- ated by section 705(a) for the year for each making appropriate arrangements for the al- tions, and representatives of employees— covered pollutant other than mercury to the location of emission allowances to house- ‘‘(I) to provide training, adjustment assist- owners or operators of electricity generating holds under this subsection, including as ance, and employment services to dislocated facilities in the ratio that— necessary the appointment of 1 or more workers; and ‘‘(A) the quantity of electricity generated trustees— ‘‘(II) to make income-maintenance and by each electricity generating facility in ‘‘(A) to receive the emission allowances for needs-related payments to dislocated work- 2001; bears to the benefit of the households; ers; and ‘‘(B) the quantity of electricity generated ‘‘(B) to obtain fair market value for the ‘‘(ii) grants to States and local govern- by all electricity generating facilities in emission allowances; and ments to assist communities in attracting 2001. ‘‘(C) to distribute the proceeds to the bene- new employers or providing essential local ‘‘(2) SPECIFIED PERCENTAGES.—The percent- ficiaries. government services. ages referred to in paragraph (1) are— ‘‘(b) ALLOCATION FOR TRANSITION ASSIST- ‘‘(c) ALLOCATION TO RENEWABLE ELEC- ‘‘(A) in the case of 2009, 10 percent; ANCE.— TRICITY GENERATING UNITS, EFFICIENCY ‘‘(B) in the case of 2010, 9 percent; ‘‘(1) IN GENERAL.—For 2009 and each year PROJECTS, AND CLEANER ENERGY SOURCES.— ‘‘(C) in the case of 2011, 8 percent; thereafter through 2018, the Administrator For 2009 and each year thereafter, the Ad- ‘‘(D) in the case of 2012, 7 percent; shall allocate the percentage specified in ministrator shall allocate not more than 20 ‘‘(E) in the case of 2013, 6 percent; paragraph (2) of the emission allowances cre- percent of the emission allowances created ‘‘(F) in the case of 2014, 5 percent; ated by section 705(a) for the year for each by section 705(a) for the year for each cov- ‘‘(G) in the case of 2015, 4 percent; covered pollutant other than mercury in the ered pollutant other than mercury— ‘‘(H) in the case of 2016, 3 percent; following manner: ‘‘(1) to owners and operators of renewable ‘‘(I) in the case of 2017, 2 percent; and ‘‘(A) 80 percent shall be allocated to pro- electricity generating units, in a number ‘‘(J) in the case of 2018, 1 percent. vide transition assistance to— equal to the product obtained by multi- ‘‘(e) ALLOCATION TO ENCOURAGE BIOLOGICAL ‘‘(i) dislocated workers (as defined in sec- plying— CARBON SEQUESTRATION.— tion 101 of the Workforce Investment Act of ‘‘(A) the number of megawatt hours of ‘‘(1) IN GENERAL.—For 2009 and each year 1998 (29 U.S.C. 2801)) whose employment has electricity generated in the previous year by thereafter, the Administrator shall allocate, been terminated or who have been laid off as each renewable electricity generating unit; on a competitive basis and in accordance a result of the emission reductions required and with paragraphs (2) and (3), not more than by this title; and ‘‘(B) with respect to the previous year, the 0.075 percent of the carbon dioxide emission ‘‘(ii) communities that have experienced national average quantity (expressed in tons) allowances created by section 705(a) for the disproportionate adverse economic impacts of emissions of each such pollutant per year for the purposes of— as a result of the emission reductions re- megawatt hour of electricity generated by ‘‘(A) carrying out projects to reduce net quired by this title. electricity generating facilities in all States; carbon dioxide emissions through biological ‘‘(B) 20 percent shall be allocated to pro- ‘‘(2) to owners and operators of energy effi- carbon dioxide sequestration in the United ducers of electricity intensive products in a cient buildings, producers of energy efficient States that— number equal to the product obtained by products, and entities that carry out energy ‘‘(i) result in benefits to watersheds and multiplying— efficient projects, in a number equal to the fish and wildlife habitats; and ‘‘(i) the ratio that— product obtained by multiplying— ‘‘(ii) are conducted in accordance with ‘‘(I) the quantity of each electricity inten- ‘‘(A) the number of megawatt hours of project reporting, monitoring, and sive product produced by each producer in electricity or cubic feet of natural gas saved verification guidelines based on— the previous year; bears to in the previous year as a result of each en- ‘‘(I) measurement of increases in carbon ‘‘(II) the quantity of the electricity inten- ergy efficient building, energy efficient prod- storage in excess of the carbon storage that sive product produced by all producers in the uct, or energy efficiency project; and would have occurred in the absence of such a previous year; ‘‘(B) with respect to the previous year, the project; ‘‘(ii) the average quantity of electricity national average quantity (expressed in tons) ‘‘(II) comprehensive carbon accounting used in producing the electricity intensive of emissions of each such pollutant per, as that— product by producers that use the most en- appropriate— ‘‘(aa) reflects net increases in carbon res- ergy efficient process for producing the elec- ‘‘(i) megawatt hour of electricity gen- ervoirs; and tricity intensive product; and erated by electricity generating facilities in ‘‘(bb) takes into account any carbon emis- ‘‘(iii) with respect to the previous year, the all States; or sions resulting from disturbance of carbon national average quantity (expressed in tons) ‘‘(ii) cubic foot of natural gas burned for a reservoirs in existence as of the date of com- of emissions of each such pollutant per purpose other than generation of electricity mencement of the project; megawatt hour of electricity generated by in all States; ‘‘(III) adjustments to account for— electricity generating facilities in all States. ‘‘(3) to owners and operators of new clean ‘‘(aa) emissions of carbon that may result ‘‘(2) SPECIFIED PERCENTAGES.—The percent- fossil fuel-fired electricity generating units, at other locations as a result of the impact ages referred to in paragraph (1) are— in a number equal to the product obtained by of the project on timber supplies; or ‘‘(A) in the case of 2009, 6 percent; multiplying— ‘‘(bb) potential displacement of carbon ‘‘(B) in the case of 2010, 5.5 percent; ‘‘(A) the number of megawatt hours of emissions to other land owned by the entity ‘‘(C) in the case of 2011, 5 percent; electricity generated in the previous year by that carries out the project; and ‘‘(D) in the case of 2012, 4.5 percent; each new clean fossil fuel-fired electricity ‘‘(IV) adjustments to reflect the expected ‘‘(E) in the case of 2013, 4 percent; generating unit; and carbon storage over various time periods, ‘‘(F) in the case of 2014, 3.5 percent; ‘‘(B) with respect to the previous year, 1⁄2 taking into account the likely duration of ‘‘(G) in the case of 2015, 3 percent; of the national average quantity (expressed the storage of the carbon stored in a carbon ‘‘(H) in the case of 2016, 2.5 percent; in tons) of emissions of each such pollutant reservoir; and ‘‘(I) in the case of 2017, 2 percent; and per megawatt hour of electricity generated ‘‘(B) conducting accurate inventories of ‘‘(J) in the case of 2018, 1.5 percent. by electricity generating facilities in all carbon sinks. ‘‘(3) REGULATIONS FOR ALLOCATION FOR States; and ‘‘(2) CARBON INVENTORY.—The Adminis- TRANSITION ASSISTANCE TO DISLOCATED WORK- ‘‘(4) to owners and operators of combined trator, in consultation with the Secretary of ERS AND COMMUNITIES.— heat and power electricity generating facili- Agriculture, shall allocate not more than 1⁄3 ‘‘(A) IN GENERAL.—Not later than 1 year ties, in a number equal to the product ob- of the emission allowances described in para- after the date of enactment of this title, the tained by multiplying— graph (1) to not more than 5 State or Administrator shall promulgate regulations ‘‘(A) the number of British thermal units multistate land or forest management agen- making appropriate arrangements for the of thermal energy produced and put to pro- cies or nonprofit entities that—

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.081 S12PT2 S2350 CONGRESSIONAL RECORD — SENATE February 12, 2003 ‘‘(A) have a primary goal of land conserva- the proceeds from the sale or other transfer stalled at an electricity generating facility tion; and of the emission allowances only for the pur- is not re-released into the environment. ‘‘(B) submit to the Administrator pro- pose of carrying out activities described in ‘‘(2) REQUIRED ELEMENTS.—The regulations posals for projects— this subsection. shall require— ‘‘(i) to demonstrate and assess the poten- ‘‘SEC. 708. MERCURY EMISSION LIMITATIONS. ‘‘(A) daily covers on all active waste dis- tial for the development and use of carbon ‘‘(a) IN GENERAL.— posal units, and permanent covers on all in- inventorying and accounting systems; ‘‘(1) REGULATIONS.— active waste disposal units, to prevent the ‘‘(ii) to improve the standards relating to, ‘‘(A) IN GENERAL.—Not later than 1 year release of mercury into the air; and the identification of, incremental carbon after the date of enactment of this title, the ‘‘(B) monitoring of groundwater to ensure sequestration in forests, agricultural soil, Administrator shall promulgate regulations that mercury or mercury compounds do not grassland, or rangeland; or to establish emission limitations for mer- migrate from the waste disposal unit; ‘‘(iii) to assist in development of a national cury emissions by coal-fired electricity gen- ‘‘(C) waste disposal siting requirements biological carbon storage baseline or inven- erating facilities. and cleanup requirements to protect ground- tory. ‘‘(B) NO EXCEEDANCE OF NATIONAL LIMITA- water and surface water resources; ‘‘(3) REVOLVING LOAN PROGRAM.—The Ad- TION.—The regulations shall ensure that the ‘‘(D) elimination of agricultural applica- ministrator shall allocate not more than 2⁄3 national limitation for mercury emissions tion of coal combustion wastes; and of the emission allowances described in para- from each coal-fired electricity generating ‘‘(E) appropriate limitations on mercury graph (1) to States, based on proposals sub- facility established under section 704(a)(4) is emissions from sources or processes that re- mitted by States to conduct programs under not exceeded. process or use coal combustion waste, in- which each State shall— ‘‘(C) EMISSION LIMITATIONS FOR 2008 AND cluding manufacturers of wallboard and ce- ‘‘(A) use the value of the emission allow- THEREAFTER.—In carrying out subparagraph ment. ances to establish a State revolving loan (A), for 2008 and each year thereafter, the ‘‘SEC. 709. OTHER HAZARDOUS AIR POLLUTANTS. fund to provide loans to owners of nonindus- Administrator shall not— ‘‘(a) IN GENERAL.—Not later than January trial private forest land in the State to carry ‘‘(i) subject to subsections (e) and (f) of sec- 1, 2004, the Administrator shall issue to own- out forest and forest soil carbon sequestra- tion 112, establish limitations on emissions ers and operators of coal-fired electricity tion activities that will achieve the purposes of mercury from coal-fired electricity gener- generating facilities requests for informa- specified in paragraph (2)(B); and tion under section 114 that are of sufficient ‘‘(B) for 2010 and each year thereafter, con- ating facilities that allow emissions in ex- cess of 2.48 grams of mercury per 1000 mega- scope to generate data sufficient to support tribute to the program of the State an issuance of standards under section 112(d) for amount equal to 25 percent of the value of watt hours; or ‘‘(ii) differentiate between facilities that hazardous air pollutants other than mercury the emission allowances received under this emitted by coal-fired electricity generating paragraph for the year in cash, in-kind serv- burn different types of coal. ‘‘(2) ANNUAL REVIEW AND DETERMINATION.— facilities. ices, or technical assistance. ‘‘(b) DEADLINE FOR SUBMISSION OF RE- ‘‘(4) USE OF EMISSION ALLOWANCES.—An en- ‘‘(A) IN GENERAL.—Not later than April 1 of each year, the Administrator shall— QUESTED INFORMATION.—The Administrator tity that receives an allocation of emission shall require each recipient of a request for ‘‘(i) review the total mercury emissions allowances under this subsection may use information described in subsection (a) to during the 2 previous years from electricity the proceeds from the sale or other transfer submit the requested data not later than 180 generating facilities located in all States; of the emission allowances only for the pur- days after the date of the request. and pose of carrying out activities described in ‘‘(c) PROMULGATION OF EMISSION STAND- ‘‘(ii) determine whether, during the 2 pre- this subsection. ARDS.—The Administrator shall— ‘‘(5) RECOMMENDATIONS CONCERNING CARBON vious years, the total mercury emissions ‘‘(1) not later than January 1, 2005, propose DIOXIDE EMISSION ALLOWANCES.— from facilities described in clause (i) exceed- emission standards under section 112(d) for ‘‘(A) IN GENERAL.—Not later than 4 years ed the national limitation for mercury emis- hazardous air pollutants other than mer- after the date of enactment of this title, the sions established under section 704(a)(4). cury; and Administrator, in consultation with the Sec- ‘‘(B) EXCEEDANCE OF NATIONAL LIMITA- ‘‘(2) not later than January 1, 2006, promul- retary of Agriculture, shall submit to Con- TION.—If the Administrator determines gate emission standards under section 112(d) gress recommendations for establishing a under subparagraph (A)(ii) that, during the 2 for hazardous air pollutants other than mer- system under which entities that receive previous years, the total mercury emissions cury. grants or loans under this section may be al- from facilities described in subparagraph ‘‘(d) PROHIBITION ON EXCESS EMISSIONS.—It located carbon dioxide emission allowances (A)(i) exceeded the national limitation for shall be unlawful for an electricity gener- created by section 705(a) for incremental car- mercury emissions established under section ating facility subject to standards for haz- bon sequestration in forests, agricultural 704(a)(4), the Administrator shall, not later ardous air pollutants other than mercury soils, rangeland, or grassland. than 1 year after the date of the determina- promulgated under subsection (c) to emit, ‘‘(B) GUIDELINES.—The recommendations tion, revise the regulations promulgated after December 31, 2007, any such pollutant shall include recommendations for develop- under paragraph (1) to reduce the emission in excess of the standards. ment, reporting, monitoring, and rates specified in the regulations as nec- ‘‘(e) EFFECT ON OTHER LAW.—Nothing in verification guidelines for quantifying net essary to ensure that the national limitation this section or section 708 affects any re- carbon sequestration from land use projects for mercury emissions is not exceeded in any quirement of subsection (e), (f)(2), or that address the elements specified in para- future year. (n)(1)(A) of section 112, except that the emis- graph (1)(A). ‘‘(3) COMPLIANCE FLEXIBILITY.— sion limitations established by regulations ‘‘(f) ALLOCATION TO ENCOURAGE GEOLOGICAL ‘‘(A) IN GENERAL.—Each coal-fired elec- promulgated under this section shall be CARBON SEQUESTRATION.— tricity generating facility subject to an deemed to represent the maximum achiev- ‘‘(1) IN GENERAL.—For 2009 and each year emission limitation under this section shall able control technology for mercury emis- thereafter, the Administrator shall allocate be in compliance with that limitation if that sions from electricity generating units under not more than 1.5 percent of the carbon diox- limitation is greater than or equal to the section 112(d). ide emission allowances created by section quotient obtained by dividing— ‘‘SEC. 710. EFFECT OF FAILURE TO PROMULGATE 705(a) to entities that carry out geological ‘‘(i) the total mercury emissions of the REGULATIONS. sequestration of carbon dioxide produced by coal-fired electricity generating facility dur- ‘‘If the Administrator fails to promulgate an electric generating facility in accordance ing each 30-day period; by regulations to implement and enforce the with requirements established by the Admin- ‘‘(ii) the quantity of electricity generated limitations specified in section 704— istrator— by the coal-fired electricity generating facil- ‘‘(1)(A) each electricity generating facility ‘‘(A) to ensure the permanence of the se- ity during that period. shall achieve, not later than January 1, 2009, questration; and ‘‘(B) MORE THAN 1 UNIT AT A FACILITY.—In an annual quantity of emissions that is less ‘‘(B) to ensure that the sequestration will any case in which more than 1 coal-fired than or equal to— not cause or contribute to significant ad- electricity generating unit at a coal-fired ‘‘(i) in the case of nitrogen oxides, 15 per- verse effects on the environment. electricity generating facility subject to an cent of the annual emissions by a similar ‘‘(2) NUMBER OF EMISSION ALLOWANCES.— emission limitation under this section was electricity generating facility that has no For 2009 and each year thereafter, the Ad- operated in 1999 under common ownership or controls for emissions of nitrogen oxides; ministrator shall allocate to each entity de- control, compliance with the emission limi- and scribed in paragraph (1) a number of emis- tation may be determined by averaging the ‘‘(ii) in the case of carbon dioxide, 75 per- sion allowances that is equal to the number emission rates of all coal-fired electricity cent of the annual emissions by a similar of tons of carbon dioxide produced by the generating units at the electricity gener- electricity generating facility that has no electric generating facility during the pre- ating facility during each 30-day period. controls for emissions of carbon dioxide; and vious year that is geologically sequestered as ‘‘(b) PREVENTION OF RE-RELEASE.— ‘‘(B) each electricity generating facility described in paragraph (1). ‘‘(1) REGULATIONS.—Not later than January that does not use natural gas as the primary ‘‘(3) USE OF EMISSION ALLOWANCES.—An en- 1, 2005, the Administrator shall promulgate combustion fuel shall achieve, not later than tity that receives an allocation of emission regulations to ensure that any mercury cap- January 1, 2009, an annual quantity of emis- allowances under this subsection may use tured or recovered by emission controls in- sions that is less than or equal to—

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.082 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2351 ‘‘(i) in the case of sulfur dioxide, 5 percent ‘‘(I) acid-neutralizing capacity; and (2) for operational support of the National of the annual emissions by a similar elec- ‘‘(II) changes in the number of water bodies Atmospheric Deposition Program Mercury tricity generating facility that has no con- in the sensitive ecosystems referred to in Deposition Network— trols for emissions of sulfur dioxide; and subparagraph (G)(ii) with an acid-neutral- (A) $400,000 to the Environmental Protec- ‘‘(ii) in the case of mercury, 10 percent of izing capacity greater than zero; and’’; and tion Agency; the annual emissions by a similar electricity (B) by adding at the end the following: (B) $400,000 to the United States Geological generating facility that has no controls in- ‘‘(G) SENSITIVE ECOSYSTEMS.— Survey; cluded specifically for the purpose of con- ‘‘(i) IN GENERAL.—Beginning in 2005, and (C) $100,000 to the National Oceanic and At- trolling emissions of mercury; and every 4 years thereafter, the report under mospheric Administration; and ‘‘(2) the applicable permit under this Act subparagraph (E) shall include— (D) $100,000 to the National Park Service; for each electricity generating facility shall ‘‘(I) an identification of environmental ob- (3) for the National Atmospheric Deposi- be deemed to incorporate a requirement for jectives necessary to be achieved (and re- tion Program Atmospheric Integrated Re- achievement of the reduced levels of emis- lated indicators to be used in measuring search Monitoring Network $1,500,000 to the sions specified in paragraph (1). achievement of the objectives) to adequately National Oceanic and Atmospheric Adminis- ‘‘SEC. 711. PROHIBITIONS. protect and restore sensitive ecosystems; tration; ‘‘It shall be unlawful— and (4) for the Clean Air Status and Trends ‘‘(1) for the owner or operator of any elec- ‘‘(II) an assessment of the status and Network $5,000,000 to the Environmental tricity generating facility— trends of the environmental objectives and Protection Agency; and ‘‘(A) to operate the electricity generating indicators identified in previous reports (5) for the Temporally Integrated Moni- facility in noncompliance with the require- under this paragraph. toring of Ecosystems and Long-Term Moni- ments of this title (including any regulations ‘‘(ii) SENSITIVE ECOSYSTEMS TO BE AD- toring Program $2,500,000 to the Environ- implementing this title); DRESSED.—Sensitive ecosystems to be ad- mental Protection Agency. ‘‘(B) to fail to submit by the required date dressed under clause (i) include— (b) MODERNIZATION.—In addition to any emission allowances, or pay any penalty, ‘‘(I) the Adirondack Mountains, mid-Appa- amounts made available under any other for which the owner or operator is liable lachian Mountains, Rocky Mountains, and law, there are authorized to be appro- under section 705; southern Blue Ridge Mountains; priated— ‘‘(C) to fail to provide and comply with any ‘‘(II) the Great Lakes, Lake Champlain, (1) for equipment and site modernization of plan to offset excess emissions required Long Island Sound, and the Chesapeake Bay; the National Atmospheric Deposition Pro- under section 705(f); or and gram National Trends Network $6,000,000 to ‘‘(D) to emit mercury in excess of the emis- ‘‘(III) other sensitive ecosystems, as deter- the Environmental Protection Agency; sion limitations established under section mined by the Administrator. (2) for equipment and site modernization ‘‘(H) ACID DEPOSITION STANDARDS.—Begin- 708; or and network expansion of the National At- ning in 2005, and every 4 years thereafter, the ‘‘(2) for any person to hold, use, or transfer mospheric Deposition Program Mercury Dep- report under subparagraph (E) shall include any emission allowance allocated under this osition Network $2,000,000 to the Environ- a revision of the report under section 404 of title except in accordance with regulations mental Protection Agency; Public Law 101–549 (42 U.S.C. 7651 note) that promulgated by the Administrator. (3) for equipment and site modernization includes a reassessment of the health and and network expansion of the National At- ‘‘SEC. 712. MODERNIZATION OF ELECTRICITY chemistry of the lakes and streams that GENERATING FACILITIES. mospheric Deposition Program Atmospheric were subjects of the original report under ‘‘(a) IN GENERAL.—Beginning on the later Integrated Research Monitoring Network that section.’’; and of January 1, 2014, or the date that is 40 $1,000,000 to the National Oceanic and At- (2) by adding at the end the following: years after the date on which the electricity mospheric Administration; and ‘‘(4) PROTECTION OF SENSITIVE ECO- generating facility commences operation, (4) for equipment and site modernization SYSTEMS.— each electricity generating facility shall be and network expansion of the Clean Air Sta- ‘‘(A) DETERMINATION.—Not later than De- subject to emission limitations reflecting tus and Trends Network $4,600,000 to the En- cember 31, 2011, the Administrator, taking the application of best available control vironmental Protection Agency. into consideration the findings and rec- technology on a new major source of a simi- (c) AVAILABILITY OF AMOUNTS.—Each of the ommendations of the report revisions under lar size and type (as determined by the Ad- amounts appropriated under subsection (b) paragraph (3)(H), shall determine whether ministrator) as determined in accordance shall remain available until expended. with the procedures specified in part C of emission reductions under titles IV and VII are sufficient to— SEC. 6. TECHNICAL AMENDMENTS. title I. Title IV of the Clean Air Act (relating to ‘‘(b) ADDITIONAL REQUIREMENTS.—The re- ‘‘(i) achieve the necessary reductions iden- noise pollution) (42 U.S.C. 7641 et seq.)— quirements of this section shall be in addi- tified under paragraph (3)(F); and (1) is amended by redesignating sections tion to the other requirements of this title. ‘‘(ii) ensure achievement of the environ- mental objectives identified under paragraph 401 through 403 as sections 801 through 803, ‘‘SEC. 713. RELATIONSHIP TO OTHER LAW. respectively; and ‘‘(a) IN GENERAL.—Except as expressly pro- (3)(G). (2) is redesignated as title VIII and moved vided in this title, nothing in this title— ‘‘(B) REGULATIONS.— to appear at the end of that Act. ‘‘(1) limits or otherwise affects the applica- ‘‘(i) IN GENERAL.—Not later than 2 years tion of any other provision of this Act; or after the Administrator makes a determina- SUMMARY OF THE CLEAN POWER ACT OF 2003 ‘‘(2) precludes a State from adopting and tion under subparagraph (A) that emission enforcing any requirement for the control of reductions are not sufficient, the Adminis- Amends the Clean Air Act with a new title emissions of air pollutants that is more trator shall promulgate regulations to pro- VII—Electric Generation Emission Reduc- stringent than the requirements imposed tect the sensitive ecosystems referred to in tions. under this title. paragraph (3)(G)(ii). Caps—Sets annual emissions caps for three ‘‘(b) REGIONAL SEASONAL EMISSION CON- ‘‘(ii) CONTENTS.—Regulations under clause pollutants that apply beginning in 2009: TROLS.—Nothing in this title affects any re- (i) shall include modifications to— SOx—275,000 tons in western region; 1,975,000 gional seasonal emission control for nitrogen ‘‘(I) provisions relating to nitrogen oxide tons in eastern region; NOx—1,510,000 tons; oxides established by the Administrator or a and sulfur dioxide emission reductions; and CO2—2,050,000,000 tons. State under title I.’’. ‘‘(II) provisions relating to allocations of Mercury emissions are capped in 2008 at a (b) CONFORMING AMENDMENT.—Section nitrogen oxide and sulfur dioxide allowances; rate that results in 5 tons annually 412(a) of the Clean Air Act (42 U.S.C. and The Administrator is authorized to reduce 7651k(a)) is amended in the first sentence by ‘‘(III) such other provisions as the Admin- these caps if the Administrator determines striking ‘‘opacity’’ and inserting ‘‘mercury, istrator determines to be necessary.’’. that they are not reasonably anticipated to opacity,’’. SEC. 5. AUTHORIZATION OF APPROPRIATIONS protect public health or welfare or the envi- SEC. 3. SAVINGS CLAUSE. FOR DEPOSITION MONITORING. ronment. In addition, the Administrator is Section 193 of the Clean Air Act (42 U.S.C. (a) OPERATIONAL SUPPORT.—In addition to authorized to limit the emissions from an 7515) is amended by striking ‘‘date of the en- amounts made available under any other electric generating facility (EGF), if she de- actment of the Clean Air Act Amendments of law, there are authorized to be appropriated termines that its emissions may reasonably 1990’’ each place it appears and inserting for each of fiscal years 2004 through 2013— be anticipated to cause or contribute to a ‘‘date of enactment of the Clean Power Act (1) for operational support of the National significant adverse impact on an area. of 2003’’. Atmospheric Deposition Program National Modernization—By the later of 2014, or 40 SEC. 4. ACID PRECIPITATION RESEARCH PRO- Trends Network— years after commencing operation, each EGF GRAM. (A) $2,000,000 to the United States Geologi- must achieve emission limitations reflecting Section 103(j) of the Clean Air Act (42 cal Survey; the best available control technology applied U.S.C. 7403(j)) is amended— (B) $600,000 to the Environmental Protec- to a new major source of the same gener- (1) in paragraph (3)— tion Agency; ating capacity. (A) in subparagraph (F)(i), by striking ‘‘ef- (C) $600,000 to the National Park Service; Allownace Creation & Trading—Allow- fects; and’’ and inserting ‘‘effects, including and ances are created representing each of the an assessment of— (D) $400,000 to the Forest Service; caps’ tons and may be traded, except for

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.082 S12PT2 S2352 CONGRESSIONAL RECORD — SENATE February 12, 2003 mercury. They will have unique serial num- er energy, carbon sequestration, and existing tion, EPA must submit a report every four bers to identify them. Western and Eastern units. years on sensitive ecosystems, including the SOx allowances may be traded between re- Consumers/Households—After the allow- Adirondacks, the mid-Appalachian Moun- gions, but extra-regional allowances can’t be ances described below are distributed, the tains, the Great Lakes, Lake Champlain, the used to meet an EGF’s obligations. Trading Administration will have a minimum of Rocky Mountains, and the southern Blue in emission allowances with other sectors is 62.5% of the total allowances to distribute to Ridge Mountains. If necessary, EPA is au- prohibited, except if the allowances are for households. EPA will arrange for a trustee to thorized to promulgate regulations in 2012 to carbon dioxide and are created by a cap on receive these allowances and to convey their protect them. another non-electricity sector. fair market value to households based on the Failure of EPA to Issue Regs—EPA must Allowance Submission to Meet Caps— number of persons in the household and the promulgate regulations by 2009 to implement Three months after the end of 2009, and every ratio of the household’s state’s residential and enforce these emission limitations or year thereafter, each electric generating fa- electricity consumption to the national resi- each EGF must achieve specific emission cility that generates 15 MW (or the thermal dential electricity consumption. performance at each facility relative to an equivalent) or greater from a fossil fuel com- Transition Assistance—EPA will arrange uncontrolled source—95% for sulfur dioxide, bustion unit or combination of units that for a trustee to receive 6% of the allowance 85% for nitrogen oxides, 25% for carbon diox- sells electricity must give to EPA at last the in 2009 (this declines over 10 years by incre- ide, and 90% for mercury. amount of allowances that represent the ments of .5 to 1.5% in 2018), who must then Small Generator Inventory—EPA will con- tons they emitted in the previous year. Al- turn around and obtain fair market value for duct an inventory of emissions from Electric lowances created and banked under Title IV those allowances and convey: Generating Facilities (EGFs) with gener- (acid rain—SO ) or through Title I regula- 80% of that value to dislocated workers ating capacity less than 15MW. Based on x that inventory, EPA will annually subtract tions (ozone—NOx), may be used at the rate and communities that experience a dis- of 4:1. However, if allowances are banked be- proportionate impact due to the emission re- those emissions from the total amount of al- cause a facility meets NSPS in the period ductions required by the bill, and lowances allocated prior to distribution each 2001–2008, they may be used 1:1 for compli- 20% to producers of electricity intensive year. Savings Clause—Nothing in the Clean ance with Clean Power Act. Allowances products (like aluminum) based on their Power Act precludes a State from adopting under the Clean Power Act may be banked. share of total output multiplied by the aver- Emissions Emission Penalties—By 2007 and age amount of power used by most efficient and enforcing any requirement for the con- every 3 years thereafter, each state will iden- production process multiplied by the na- trol of emissions of air pollutants that is tify the electric generating facilities in that tional average emission rate of the covered more stringent than the requirements im- state and in other states that are signifi- pollutants from fossil fuel generating facili- posed under this title. cantly contributing to non-attainment of an ties in tons per MW. Ms. COLLINS. Mr. President, I am ozone naaqs in that state. Beginning in 2009, Renewable Energy Generating Units, Effi- pleased to join Senator JEFFORDS in in- the Administrator is authorized, upon a peti- ciency Projects and Clean Energy Sources— troducing the Clean Power Act of 2003. tion from a state or a citizen demonstrating EPA will allocate no more than 20% of the This bill will remove the loophole that that control measures are inadequate to pre- total allowances to: has allowed the dirtiest, most polluting vent that significant contribution, to require (1) renewable electricity generating units based on their output multiplied by the na- power plants in the Nation to escape that each identified and inadequately con- significant pollution controls for more trolled facility submit 3 nitrogen oxide emis- tional average emission rate of the covered sion allowances for each ton of nitrogen ox- pollutants from fossil fuel generating facili- than 30 years. ides emitted by that electricity generating ties in tons per MWh. So, for each avoided Maine is one of the most beautiful facility during the period of an ozone naaqs ton of pollution per unit of output, the re- and pristine States in the Nation. It is exceedance that occurred in the previous newable generator will get an allowance also one of the most environmentally year. equal to one ton. responsible States in the Nation. Maine An EGF that fails to submit enough allow- (2) owners and operators of energy efficient has fewer emissions of the pollutants ances to EPA will be required to submit ad- buildings, producers of energy efficient prod- that cause smog and acid rain than all ucts and entities that carry out energy effi- ditional emission allowances as a penalty. but a handful of states. Maine also has This is similar to section 412 of CAA. For ciency projects, based on the tons of pollu- one of the lowest emissions of carbon SOx, NOx, and CO2, the penalty is 3 times the tion that would have been emitted at the na- excess emissions or shortfall in allowances tional average rate for fossil fuel electricity dioxide nationwide. multiplied by the average annual market generation or natural gas combustion for Unfortunately, despite the collective price of the allowance. For mercury, the pen- each megawatt-hour or unit of natural gas environmental consciousness of both alty is 3 times the excess emissions and the saved. the citizens and industries of Maine, average cost of mercury controls. (3) cleaner fossil fuel EGFs, based on their Maine still suffers from air pollution. Mercury Emissions Limitation—Starting output multiplied by half of the tons of pol- Every lake, river, and stream in Maine in 2008, mercury emissions are limited to no lution that would otherwise have been emit- is subject to a state mercury advisory ted at the national average rate for fossil greater than 2.48 grams of mercury per 1,000 that warns pregnant women and young megawatt hours. This is equivalent to reduc- fuel electricity generation or natural gas ing aggregate emissions of mercury from combustion for the same amount of output. children to limit consumption of fish EGFs by 90 percent from today’s levels, and (4) combined heat and power facilities, caught in those waters. Even Acadia the emission limitation imposed are deemed based on their Btus of thermal energy output National Park, one of the most beau- to be maximum achievable control tech- multiplied by the tons of pollution that tiful national parks in the Nation, ex- nology (MACT) for mercury. In the event would otherwise have been emitted in tons periences days in which visibility is ob- that aggregate emissions from EGFs go per Btu at a fossil fuel EGF for the same scured by smog. above the 5 ton cap, then EPA must adjust amount of output. Where does all this pollution come the limitations downward. EGFs may aver- Carbon Sequestration—EPA will allocate from? A large part of it comes from a age their emissions over 30-day periods and up to .075% of the total carbon dioxide allow- ances to states for developing biological car- relatively small number of mostly between units at a single facility. EPA must coal-fired power plants that use loop- promulgate regulations to prevent the re- bon sequestration inventories and for estab- release of mercury into the environment lishing state revolving loan funds for loans holes to escape the provisions of the from coal combustion waste, i.e. fly ash. to owners of nonindustrial private forest Clean Air Act. Coal-fired power plants Non-Mercury Haps Rulemaking—EPA lands to carry out carbon sequestration. are the single largest source of air pol- must proposed MACT regulations to cover EPW will allocate up to 1.5% of the total car- lution, mercury contamination, and non-mercury hazardous air pollutants from bon dioxide allowances to entities con- greenhouse gas emissions in the na- EGFs by 2005 and enforce them by 2008. ducting geologic carbon sequestration, based tion. A single coal-fired power plant Monitoring—Coal-fired EGFs above 50MW on the national average rate of carbon diox- will be required to conduct ambient air qual- ide emissions from EGFs per ton seques- can emit more of the pollutants that ity monitoring within a 30-mile radius for tered. cause smog and acid rain than all of hazardous air pollutants and sulfur dioxide Existing Facilities. EPA will allocate 10% the cars, factories, and businesses in emitted by the facility. In general, EGFs of the allowances in 2009 (declining 1 point Maine combined. must conduct continuous emission moni- annually over time until it reaches 1% in As the easternmost State in the Na- toring. 2018) to EGFs based on share of 2000 output. tion, Maine is downwind of almost all Allowance Allocation. Acid Precipitation and Sensitive eco- power plants in the United States. Allowances representing the tons of pollu- system research—EPA must expand the re- Many of the pollutants emitted by tion in the emission caps for SO , NO , and port completed every four years on the re- x x these power plants—mercury, sulfur di- CO2, are distributed annually every year by duction in acid deposition rates necessary to the Administrator in 2009 to five main cat- prevent adverse ecological effects by includ- oxide, nitrogen oxides, and carbon di- egories: consumers/households, transition as- ing consideration of changes in lakes and oxide—end up in or over Maine. Air- sistance, renewable energy-efficiency-clean- streams acid neutralizing capacity. In addi- borne mercury falls into our lakes and

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streams, contaminating freshwater fish prise, but which it can do little about I am supporting the goal of CO2 emis- and threatening our people’s health. when nearly 80 percent of the State’s sions reduction in the Jeffords’ bill in Carbon dioxide is causing climate dirty air is not of their own making the hopes that the bill will be a ral- change that threatens to alter Maine’s but is transported by winds blowing in lying point to further the debate for re- delicate ecological balance. Sulfur di- from the Midwest and Southeast. ducing CO2 and at the same time, get oxide and nitrogen oxides come to The bill will dramatically cut aggre- our air cleaner on a quicker timeframe. Maine in the form of acid rain and gate power plant emissions by 2009 of In particular, Congress needs to de- smog that damage the health of our the four major power plant pollutants: velop a market mechanism approach people and the health of our environ- nitrogen oxides NOX, the primary cause for CO2 emissions trading—such as we ment. of smog, by 71 percent from 2000 levels; now have for acid rain—to allow U.S. A single power plant can emit nearly sulfur dioxide, SO2, that causes acid industries the flexibility and certainty a ton of mercury in a single year. rain and respiratory disease, by 81 per- to reduce CO2 emissions without the That’s equivalent to incinerating over cent from 2000 levels; mercury, Hg, threat of higher energy production 1 million mercury thermometers and is which poisons our lakes and rivers, costs in the future that will be passed enough to contaminate millions of causing fish to be unfit for human con- on to the consumer. I will continue to acres of freshwater lakes. In contrast, sumption, through a 90 percent reduc- work with my colleagues, the White Maine has zero power plant emissions tion by 2008; and carbon dioxide, CO2, House and representatives from various of mercury. This bill would reduce the greenhouse gas most directly industry groups, and environmental or- mercury emissions from power plants linked to global climate variabilities, ganizations to achieve this goal. by 90 percent by 2009. by 21 percent from 2000 levels. Of note, The bottom line is that we have the opportunity to raise the bar for cleaner I am pleased that there has been so the NOX, SO2, and mercury reductions much recognition recently of the prob- are set at levels that are known to be domestic energy production in an eco- lems that so many States are facing on cost effective with available tech- nomically effective manner. Solutions clean air. President Bush has proposed nology. exist in available and developing tech- a ‘‘Clear Skies’’ initiative that will re- The bill will also eliminate the out- nologies, and most of all in the entre- duce emissions of mercury, sulfur diox- dated coal-burning power plants that preneurial spirit of the American peo- ide, and nitrogen oxides. Last year, were grandfathered in the Clean Air ple who want a cleaner and healthier Senators CARPER, CHAFEE, BREAUX, and Act unless they apply the best avail- environment, including those in Maine BAUCUS also introduced legislation able pollution control technology by who want to ensure that the State’s that would reduce these pollutants, as their 40th birthday or 2014, whichever pristine lakes and coast will remain well as carbon dioxide. is later. The thinking for the exemp- clean and our forests healthy for gen- There are important differences be- tion in the Clean Air Act was based, at erations to come. States like Maine are tween these proposals. The Jeffords/ the time, on the assumption that the leading the way in trying to reduce CO2 Collins bill does more to reduce smog, plants would not stay on line much emissions—and the Jeffords’ legisla- acid rain, mercury pollution, and glob- longer. However, as energy has gotten tion sends a powerful message to those al warming than any other bill. Our more expensive, companies are keeping who would pollute our air: your days bill provides more public health and these older, dirtier plants up and run- are numbered. environmental benefits than any other ning. I am optimistic that the Congress serious proposal, and it provides the Furthermore, just as the Clean Air can come together with the President, benefits sooner. However, any step Act already provides tradable allow- industry and all those who want clean- which reduces air pollution is a step in ances for sulfur dioxide that causes er, healthier air to create a cohesive the right direction. Our parks and our acid rain, the Jeffords’ legislation also policy that is best suited for our na- people have waited far too long for allows for tradable allowances to con- tion, so I urge my colleagues to sup- clean air. trol emissions for three other pollut- port the Jeffords’ legislation. I think virtually everyone agrees ants—NOX, SOX, CO2,—by using mar- By Mr. ROCKEFELLER: that we need to reduce power plant pol- ket-oriented mechanisms to meet S. 367. A bill to amend part A of title lution. I look forward to working with emissions reduction requirements. IV of the Social Security Act to reau- the Administration and my colleagues The tradable allowances would be thorize and improve the temporary as- on both sides of the aisle to provide distributed to five main categories, in- sistance to needy families program, cleaner air. cluding 63 percent or more to house- and for other purposes; to the Com- Ms. SNOWE. Mr. President, I rise holds; six percent for transition assist- mittee on Finance. today to cosponsor Senator JEFFORDS’ ance to affected communities and in- Mr. ROCKEFELLER. Mr. President, I bill—as I did in the 106th and 107th dustries, which will decline over time; am proud to re-introduce a bill that re- Congresses—as I am dedicated to re- up to 20 percent to renewable energy authorizes the landmark welfare re- ducing power plant emissions that generation, efficiency projects and form legislation passed in 1996. It is ba- cause some of the Nation’s—and clean energy sources, based on avoided sically the same bill as I introduced in Maine’s—most serious public health pollution; 10 percent to existing elec- the last Congress and it is designed to and environmental problems. tric generating facilities based on 2000 allow States to continue the important For too many years, coal-burning output; and up to 1.5 percent of the car- work to promote work and personal re- power plants exempt from emissions bon dioxide allowances for biological sponsibility. This reauthorization bill standards under the Clean Air Act have and geological carbon sequestration. Of is designed to allow States to continue created massive pollution problems for note, trading will not be allowed if it to provide the flexible initiatives that the Northeast because whatever spews enables a power plant to pollute at a have reduced national welfare case- out of their smokestacks in the Mid- level that damages public health or the loads by over 50 percent and moved west, blows into the Northeast, includ- environment. millions of Americans from welfare to ing my State of Maine, giving it the I realize that the Administration’s work. dubious distinction of being at the Clear Skies Initiative does not address Welfare reform was a bold experi- ‘‘end of the tailpipe’’, so to speak. carbon dioxide as a pollutant nor does ment to dramatically change a major The Jeffords’ legislation calls for re- it address emissions reductions for CO2. social program. In 1996, Congress ended ductions of power plant emissions for While I recognize that the pollutants the entitlement of eligible families pollutants that cause smog, soot, res- listed under the Clear Air Act have with children to cash aid. The results piratory disease; acid rain that kills been to achieve healthier air for hu- five years later are impressive. Over our forests; mercury that contaminates mans by cutting back on smog and two-thirds of the people who are leav- our lakes, rivers and streams; and cli- soot, and also for mercury contamina- ing the welfare rolls have left for work. mate variabilities that cause severe tion, I believe it is long past due that Seven years ago, we agreed that the shifts in our weather patterns. Maine carbon dioxide be recognized as a pol- bipartisan goal of welfare reform currently leads the Nation in asthma lutant that is harming the health of should be to promote work and to pro- cases per capita, which is not a sur- the planet. tect children. We stood here together,

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.096 S12PT2 S2354 CONGRESSIONAL RECORD — SENATE February 12, 2003 on unchartered ground, and endorsed into my bill, and I look forward to Maine’s success with the Parents as significant policy changes that we be- working with them closely throughout Scholar program, States have the op- lieved would help families gain inde- the welfare debates during this Con- tion to follow the Maine model for 5 pendence and economic self-suffi- gress to develop an employment credit percent of their caseload to combine ciency, while protecting the children. that truly rewards work. work and education. States began to revise welfare service At this point, with a soft economy, I The bill also invests $200 million to delivery with guidance based on the believe it is unwise to significantly create BusinessLink Grants, competi- new reforms. Each State designed and change State TANF programs to im- tive grants to support public and pri- implemented programs that were pose drastically higher work participa- vate partnerships to help parents get unique and specific to their popu- tion rates requiring 40 hours per week jobs. The Welfare-to-Work Partnership lations. While the results have been of work and activities. Such changes, is just one example of how nonprofits mixed, I believe that encouraging as suggested by the Administration, working with business leaders can progress has been made. The challenge would double the work requirement for make a real difference. The Partner- this year will be to continue to build mothers with children under the age of ship includes over 20,000 businesses on our foundation, and be sensitive to 6, and that does not seem right. In- that have provided more than 1 million the current economic situation and the creasing work requirement without jobs to parents moving from welfare to fiscal crisis States face today. new funding for child care, transpor- work. I have met with the board mem- When we started welfare reform, we tation, and job placement activities bers of this group, and we should en- had a strong economy. Now, States are would be, plain and simple, an un- courage such partnerships. I know that struggling and most of their reserves funded mandate. It could hinder state other groups, like the Salvation Army are gone. I believe we can continue the efforts to move parents into private and Good Will, are doing important progress of welfare reform, but I sector jobs. It could undermine our work on providing transitional job op- strongly believe we must provide the progress. portunities, and these organizations key investments that help welfare par- State officials have testified before would be eligible for grants as well. ents make a successful transition from the Finance Committee that such A job is the first step, but for welfare welfare to work, including increasing changes would force states to restruc- parents to make a successful transition child care funding. ture existing programs that are work- to independence, they need a range of In West Virginia, welfare reform has ing and turn their focus away from supports. To achieve this goal, the bill brought bold changes. Parents on wel- those who need some assistance with will create Pathways to Self-Suffi- fare get extra support as they face new child care or transportation, but are no ciency Grants to improve the support responsibilities and obligations to longer dependent on a welfare check. network for parents. These grants are make the transition from welfare to We should not cut back on necessary intended to provide incentives and sup- jobs. In 2001, I hosted a roundtable dis- child care and work supports for work- port to TANF caseworkers and non- cussion to meet with individual West ing families who are following the profit organizations to help improve Virginians who were undergoing major rules we set in 1996. the comprehensive network of supports life transitions. They told me that they This comprehensive welfare reform for working families, including Med- were proud to be working, but that it bill makes the right investments. It in- icaid, CHIP, child care, EITC, and a was often still a struggle to make ends vests $5.5 billion more in child care, range of services. Working mothers de- meet and do the best for their children. which is the amount supported by the serve to know what type of support The goal of this legislation is to help Finance Committee in a bipartisan will be available so that they do not those parents, and millions more, to vote last June. slip back into welfare. promote the well-being of their chil- This bill also increases funding for Work is fundamental, but we also dren, even as they work. the basic TANF block grant by $2.5 bil- need to be concerned about important Today, I am introducing the Personal lion because of state need. It provides aspects of the lives of families and chil- Responsibility and Work Opportunity full funding for the Social Services at dren. This legislation creates a Family Reconciliation Act Amendments of $2.8 billion, which was promised to the Formation Fund to encourage healthy 2003. States need help to continue mak- states in 1996. My bill also would ex- families, reduce teenage pregnancy, ing progress. We should continue to pand and increase the supplemental and improve child support and partici- build on this foundation, and not re- grants to help the states with high pation of parents in children’s lives. duce state flexibility. It is essential growth and high poverty deal with the The bill seeks to end certain discrimi- that we continue welfare reform, not challenges of welfare reform. With nation and harsh rules for two-parent unravel it, or restructure it. these new investments, states will be families in the current system. If our This bill acknowledges that we must able to increase investment in the fun- goal is to support marriage, we should keep the focus on work, by both requir- damental work supports like child not penalize married couples. ing and rewarding work. To ensure a care, transportation, and training, that Our legislation also makes a simple, real focus on helping parents leave wel- help a parent succeed in moving from but important change. Under the cur- fare rolls for a job, this legislation welfare to work. States would have rent TANF program, each welfare par- gradually replaces the caseload reduc- flexibility in allocating the new re- ent has an Individual Responsibility tion credit with an employment credit, sources, but I believe much of the fund- Plan that serves as an assessment and designed by Senator LINCOLN of Arkan- ing can and will be directed into child work plan. In addition to having a re- sas and Congressman LEVIN of Michi- care, which is a major priority. sponsibility to work, parents have a re- gan. Under this important provision, This bill would continue the transi- sponsibility to protect their children’s States will only get a bonus toward tional Medicaid program so families well-being. To emphasize this funda- their work participation requirement if can keep health care coverage for a mental point, this bill adds language parents move from welfare to a job. year as they move from welfare to directing states to incorporate the con- This credit will acknowledge the dig- work. In 1996, I was proud to work with cept of a child’s well-being into each nity of all work by providing a bonus Senator BREAUX and the late Senator parent’s Individual Responsibility for parents who get jobs, both full and John Chafee to protect access to health Plan. States have great flexibility, but part-time. A mother who has never care for such vulnerable families. I it is important to send a clear message worked in her life and then gets a part- have incorporated Senator BREAUX’s that one of a parent’s responsibilities time job has achieved a true accom- bipartisan bill to continue transitional is the well-being of their children. plishment, and that deserves recogni- Medicaid coverage, and I appreciate his This legislation builds on the founda- tion. It is also the first step toward leadership on this and other key issues. tion of the 1996 Personal Responsibility independence. It is an empowering ap- Our bill also gives states more flexi- and Work Opportunity Reconciliation proach to promoting work and sends bility and options to place parents in Act. My hope is that this framework the proper message to families who are vocational training and English as a will help promote bipartisan discussion striving to become self sufficient. I am Second Language programs, so parents about how we can make even more im- pleased to incorporate their proposal can get real jobs. In recognition of provements in our welfare system,

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.220 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2355 while maintaining our partnership SECTION 1. SHORT TITLE. By Mr. THOMAS: with the States, particularly at this This Act may be cited as the ‘‘Straight S. 369. A bill to amend the Endan- time of severe fiscal problems in our Talk on Social Security Act of 2003’’. gered species Act of 1973 to improve the States. SEC. 2. MATERIAL TO BE INCLUDED IN SOCIAL processes for listing, recovery plan- SECURITY ACCOUNT STATEMENT. ning, and delisting, and for other pur- By Mr. McCAIN (for himself and Section 1143(a)(2) of the Social Security poses; to the Committee on Environ- Act (42 U.S.C. 1320b–13(a)(2)) is amended— Mr. GRAHAM of South Carolina): ment and Public Works. S. 368. A bill to amend title X of the (1) in subparagraph (C) by striking ‘‘and’’ at the end; Mr. THOMAS. Mr. President, I rise Social Security Act to include addi- (2) in subparagraph (D) by striking the pe- today to introduce the ‘‘Listing and tional information in social security riod and inserting a semicolon; and Delisting Reform Act of 2003.’’ The En- account statements; to the Committee (3) by adding at the end the following: dangered Species Act has become one on Finance. ‘‘(E) a statement of the current social se- of the best examples of good intentions Mr. MCCAIN. Mr. President, today, curity tax rates applicable with respect to gone astray. Today, I am taking one there is a greater awareness of the pre- wages and self-employment income, includ- small step toward injecting some com- carious financial condition confronting ing an indication of the combined total of mon sense into what has become a reg- our Nation’s Social Security system. such rates of employee and employer taxes ulatory nightmare. It is my intention Unfortunately, partisanship has con- with respect to wages; and ‘‘(F)(i) as determined by the Chief Actuary to start making the law more effective trolled the debate on reform, polarizing for local landowners, public land man- and paralyzing Congress, while the fate of the Social Security Administration, a comparison of the total annual amount of so- agers, communities and State govern- of Social Security has become more cial security tax inflows (including amounts ments who truly hold the key to any grim and the consequent need for re- appropriated under subsections (a) and (b) of successful effort to conserve species. form has become more urgent. section 201 of this Act and section 121(e) of My legislation seeks to improve the It is now time for us to come to- the Social Security Amendments of 1983 (42 listing, recovery planning and delisting gether to reform and revitalize this U.S.C. 401 note)) during the preceding cal- processes so that recovery, the goal of system, so that Social Security will endar year to the total annual amount paid the act, is easier to achieve. continue to benefit both the seniors of in benefits during such calendar year; In Wyoming, we have seen first hand today and tomorrow. As elected offi- ‘‘(ii) as determined by such Chief Actu- ary— the need to revise the listing and cials, we have an obligation to ensure delisting processes of the Endangered that Social Security benefits are paid ‘‘(I) a statement of whether the ratio of the inflows described in clause (i) for future cal- Species Act. Listing should be a purely as promised, without unfairly bur- endar years to amounts paid for such cal- scientific decision. Listing should be dening the workers of today. endar years is expected to result in a cash based on credible data that has been American workers deserve to know flow deficit, peer-reviewed. In 1998, the Preble’s the true financial status of the Social ‘‘(II) the calendar year that is expected to Meadow Jumping Mouse was listed in Security program. Each individual be the year in which any such deficit will the State of Wyoming. The listing should have the right to honest infor- commence, and process for this mouse demonstrates ‘‘(III) the first calendar year in which mation, including the real value of how the system has gone haywire, de- their personal retirement benefits. funds in the Federal Old-Age and Survivors void of good science. One of the more Most Americans have little knowledge Insurance Trust Fund and the Federal Dis- significant shortcomings regarding the of the true financial status of Social ability Insurance Trust Fund will cease to be handling of the Preble Mouse has been Security because the current system sufficient to cover any such deficit; ‘‘(iii) an explanation that states in sub- the confusion between the ‘‘known does not provide them with practical, stance— range’’ as opposed to the alleged ‘‘his- easy to understand information. ‘‘(I) that the Trust Fund balances reflect torical range’’ of the mouse. Historical Today, Senator LINDSEY GRAHAM and resources authorized by the Congress to pay I are introducing a bill that will re- data and current knowledge do not sup- future benefits, but they do not consist of port the high, short-grass, semi-arid quire the inclusion of that practical in- real economic assets that can be used in the formation in annual Social Security future to fund benefits, and that such bal- plains of southeastern Wyoming as statements sent to all taxpaying Amer- ances are claims against the United States part of the mouse’s historical habitat icans. These statements will include Treasury that, when redeemed, must be fi- range. The U.S. Fish and Wildlife Serv- straight forward information regarding nanced through increased taxes, public bor- ice has even admitted to uncertainties the average rate of return workers can rowing, benefit reduction, or elimination of regarding taxonomic distinctions and expect to receive from Social Security other Federal expenditures, ranges. further, the State was not prop- ‘‘(II) that such benefits are established and erly notified causing counties, commis- as compared to the amount of taxes an maintained only to the extent the laws en- individual pays into the program, the sioners, and landowners all to be acted by the Congress to govern such bene- caught off guard. Such poor practices amount Social Security receives in fits so provide, and payroll, how much revenue is needed to ‘‘(III) that, under current law, inflows to do not foster the types of partnerships give promised benefits to seniors, and the Trust Funds are at levels inadequate to that are required if meaningful species the date when the program will no ensure indefinitely the payment of benefits conservation is to occur. Clearly, longer have sufficient funds to pay in full; and changes to the Endangered Species Act promised benefits. It is only fair and ‘‘(iv) in simple and easily understood are desperately needed. just to provide everyone with the true terms— Not far behind the mouse in Wyo- facts about how much they will pay in ‘‘(I) a representation of the rate of return ming, was the black tailed prairie dog. that a typical taxpayer retiring at retire- Petitions to list the prairie dog were payroll taxes and what the limited re- ment age (as defined in section 216(l)) cred- turn will be on their contributions. filed with the U.S. Fish and Wildlife ited each year with average wages and self- Service. I’ve lived in Wyoming most of We must talk straight to Americans employment income would receive on old- about Social Security and begin work- age insurance benefits as compared to the my life, and I’ve logged a lot of miles ing together in a bipartisan fashion to total amount of employer, employee, and on the roads and highways in my State make the necessary changes to self-employment contributions of such a tax- over the years. I can tell you from ex- strengthen and save the Nation’s re- payer, as determined by such Chief Actuary perience that there is no shortage of tirement program for the seniors of for each cohort of workers born in each year prairie dogs in Wyoming. Any farmer today and tomorrow. beginning with 1925, which shall be set out in or rancher will concur with that opin- I ask unanimous consent that the chart or graph form with an explanatory ion. This petition, and countless other caption or legend, and text of this legislation be printed in actions throughout the country, makes ‘‘(II) an explanation for the occurrence of it painfully clear that some folks are the RECORD. past changes in such rate of return and for There being no objection, the bill was the possible occurrence of future changes in intent on completely eliminating ac- ordered to be printed in the RECORD, as such rate of return. tivity on public lands, no matter what follows: The Comptroller General of the United the cost to individuals or local commu- S. 368 States shall consult with the Chief Actuary nities that rely on the land for eco- Be it enacted by the Senate and House of Rep- to the extent the Chief Actuary determines nomic survival. resentatives of the United States of America in necessary to meet the requirements of sub- My legislation will require the Sec- Congress assembled, paragraph (F).’’. retary of the Interior to use scientific

VerDate Jan 31 2003 01:23 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.221 S12PT2 S2356 CONGRESSIONAL RECORD — SENATE February 12, 2003 or commercial data that is empirical, Additionally, we need to revise the That shortage of vaccines was not ac- field tested and peer-reviewed. Right end of the process, the de-listing proce- ceptable, and we should do all we can now, it’s basically a ‘‘postage stamp’’ dure. Recovery should be the goal of to prevent any future shortage and do petition: any person who wants to start the Endangered Species Act. Yet, it is all we can to protect our kids from ill- a listing process may petition a species virtually impossible to de-list a spe- ness and disease. As a Senator, and with little or no scientific support. cies. There is no certainty in the proc- more importantly, as a father of eight This legislation prevents this absurd ess, and the State who has all the re- and grandfather of eight, nothing is practice by establishing minimum re- sponsibility for managing the species more important to parents than the quirements for a listing petition that once it is off the list are not true part- health and safety of our children. includes an analysis of the status of ners in that process. Once the recovery While we are not currently experi- the species, its range, population plan is met, the species should be de- encing a shortage, we know that the trends and threats. The petition must listed. vaccine market is unstable and unpre- also be peer reviewed. In order to list a Wyoming’s experience with the Griz- dictable. According to the Centers for species, the Secretary must determine zly bear pinpoints some of the prob- Disease Control’s National Immuniza- if sufficient biological information ex- lems with the current de-listing proc- tion Program, there were several rea- ists in the petition to support a recov- ess. The Interagency Grizzly Bear Com- sons for the shortages last year. The ery plan. Under my proposal, States mittee set criteria for recovery and in CDC concluded and posted on its are made active participants in the the Yellowstone ecosystem, those tar- website that the ‘‘reasons for these process and the general public is pro- gets have been met, but the bear has shortages were multi-factorial and in- vided a more substantial role. still not been removed from the list. cluded companies leaving the vaccine This legislation requires explicit We’ve been battling the U.S. Fish and market, manufacturing or production problems, and insufficient stockpiles.’’ planning and forethought with regard Wildlife Service for years over this The CDC did as good a job as it pos- to conservation and recovery at the issue to no avail. Despite rebounded sibly could, especially considering the time the species is listed. Let me be populations, we keep funneling money vaccine shortages our nation faced last clear about the intent of this require- down a black hole. year. The agency’s website posted in- ment. I do not question the basic The point is something needs to be formation about shortages and released premise that some species require the done. People in Wyoming have grown revised vaccine schedules to keep our protection of the Endangered Species weary of the Endangered Species Act public informed and knowledgeable Act. However, listing a species can and the efforts of a vocal minority to cause hardship on a community. For about vaccination shortages. run roughshod over their lives and in- But, even with the strong efforts of that reason, it is critically important terests. It is imperative to the lon- the CDC, we can work toward pre- and only reasonable that every listing gevity of many species and our citizens venting a future vaccine shortage. We be supported by sound science. We in the West that we bring this Act to can work toward a more permanent so- should be sure of the need for a listing the snubbing post and gain control of lution. The bill I am introducing with before we ask the members of our com- the process. The changes I’ve suggested my colleague from New York will go a munities and private landowners to will have a significant affect on the long way to do just that. make sacrifices. quality of science, public participation, The bill we are introducing today— In Wyoming, I have found that with state involvement, speed in recovery the Childhood Vaccine Supply Act— several listings, the Secretary of the and finally the delisting of a species. would help bring some stability to our Interior was unable to tell me what Species that truly need protection will fragile vaccine supply. Unlike drug measures were required to achieve spe- be protected, but let’s not lose sight of manufacturers, vaccine manufacturers cies recovery. The Secretary could not the real goal—recovery and delisting. do not have to give notice when they tell me what acts or omissions we stop making a vaccine—whether the could expect to face as a consequence By Mr. DEWINE (for himself, Mrs. vaccine is withdrawn from the market of listing. How can this be, if the Sec- CLINTON, and Mr. REED). intentionally or because the manufac- retary is fully apprized of the status of S. 371. A bill to amend the Public turer is simply unable to continue the species? Conversely, if the Sec- Health Service Act to ensure an ade- making the vaccine. Essentially, these retary cannot clearly describe how to quate supply of vaccines; to the Com- manufacturers leave the marketplace reverse threatening acts to a species so mittee on Health, Education, Labor, with no notice and no warning. Most that we can achieve recovery, how can and Pensions. doctors and hospitals—and more im- we be sure that the species is, in fact, Mr. DEWINE. Mr. President, I rise portantly parents and older adults— threatened? today, along with my colleague from often have no idea that a vaccine is in This ambiguity has caused much New York, Senator CLINTON, to intro- short supply until they line up for a flu undue frustration to the people of Wyo- duce the Childhood Vaccine Supply shot or go to the doctor for their ming. If the Secretary believes that Act—a bill that would help ensure that child’s immunizations. certain farming or ranching practices, our nation’s public health system has Our bill would change this. It would or a private citizen’s development of an adequate vaccine supply. require any manufacturer of a vaccine their own property is the cause for a Vaccinations are critical in our ef- to give notice of discontinuance. By listing, then the Secretary should iden- forts to keep our population, particu- giving notice, the Centers for Disease tify those activities that have to be larly children and the elderly, healthy. Control, CDC, and the Food and Drug curtailed or changed. If the Secretary They are key in protecting the elderly Administration, FDA, would be better does not have enough information to from influenza during flu season or pro- able to ensure an adequate vaccine sup- indicate what activities should be re- tecting children from contracting polio ply for our Nation’s population. Addi- stricted, then why list a species? Why or the mumps. They—vaccinations, in- tionally, our bill would require all drug open producers and others to the bur- oculations, immunizations, whatever and vaccine manufacturers to give no- den of over-zealous enforcement and you want to call them—also help lessen tice when they withdraw from the mar- even litigation without being able to the threat of bacterial or viral infec- ket. This change would ensure that we achieve the goal of recovering the spe- tions and potential disease outbreaks. have a better sense of who is making cies? Currently, it is recommended that vaccines and drugs and would allow the This legislation is ultimately de- children receive 12 routine vaccina- CDC and FDA to monitor the manufac- signed to improve the quality of infor- tions against preventable diseases. turer’s production and release of vac- mation used to support a listing. If the These vaccinations are given in a series cines. Let me explain why this is im- Secretary knows enough to list a spe- of shots and booster shots by the age of portant. cies, that person should know enough two, with an additional four doses later Vaccines, or biological products, are to tell us what will be required for re- in life. This ends up being about 16 to difficult to develop and manufacture. covery. That should be the case under 20 doses of vaccines for children. Yet, They are more complex than drugs. Be- current law, and that is all that this just last year, over half of the vaccines cause of this, it takes longer for a bio- provision would require. children need were in short supply. logical product to reach the market.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.088 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2357 For example, a pharmaceutical com- ‘‘(A) paragraph (2)(A) using the authority that children have access to affordable pany that manufactured tetanus vac- provided for under section 1928(d)(6) of the and safe vaccines. These vaccines are cine stopped producing it, leaving only Social Security Act (42 U.S.C. 1396s(d)(6)); one of the most successful and cost-ef- one company to produce tetanus vac- and fective tools we have to prevent disease ‘‘(B) paragraph (2)(B) using— cine for the entire country. The re- ‘‘(i) the authority provided for under sec- and death. maining company increased production tion 317; and Yet only a year ago, however, doctors to accommodate all of the needs of the ‘‘(ii) any other authority relating to the had to turn families away at the door United States. Despite this, it still re- vaccines described in such paragraph. because of national vaccine shortages quired about 11 months for the vaccine ‘‘(b) SUBMISSION OF PLAN.— for eight out of the eleven vaccine-pre- to be ready for release. In other words, ‘‘(1) IN GENERAL.—Not later than 1 year ventable diseases. During the vaccine it took 11 months for the company to after the date of enactment of this section, shortage, children became ill with the Secretary shall submit the plan devel- pneumococcal meningitis and pneu- ramp-up production to meet demand. oped under subsection (a) to— Our bill would create a notification ‘‘(A) the Committee on Health, Education, monia, diseases that could have been mechanism to capture those drugs and Labor, and Pensions of the Senate; prevented with an adequate supply of vaccines leaving the market so we can ‘‘(B) the Committee on Finance of the Sen- the pneumococcal vaccine. avoid future vaccine and drug short- ate; and Since the HELP Committee met to ages. ‘‘(C) the Committee on Energy and Com- discuss the vaccine shortage crisis, we Our bill would take another impor- merce of the House of Representatives. have witnessed some significant tant step toward ensuring an adequate ‘‘(2) INCLUSIONS.—The plan shall include a progress, which is a credit to a collabo- vaccine supply. It would confirm the discussion of the considerations that rative effort by public health officials, formed— authority of the CDC to develop a plan ‘‘(A) the basis for the plan; and vaccine manufacturers and providers. for the purchase, storage, and rotation ‘‘(B) the prioritization of the schedule for Shortages for five vaccines have of a supply of vaccines sufficient to purchasing vaccines set forth in the plan. stopped, and childhood vaccines for provide routinely recommended vac- ‘‘(c) IMPLEMENTATION OF THE PLAN.—Not eight different diseases are no longer cinations for a six-month period for later than September 30, 2006, the Secretary being delayed. These shortages, tempo- children and adults. Essentially, our shall fully implement the plan developed rarily alleviated, could return at any bill would create a framework for the under subsection (a). time. I know that my home state of ‘‘(d) NOTICE.— New York, like the rest of the Nation, CDC to develop a national vaccine ‘‘(1) IN GENERAL.—For the purposes of stockpile to ensure that childhood vac- maintaining and administering the supply of only has a one-to-two month stockpile cine shortages simply do not occur. vaccines described under subsection (a), the for some of the routinely recommended Our children deserve timely vaccina- Secretary shall require by contract that the childhood vaccines. tions. When childhood vaccinations are manufacturer of a vaccine included in such At the most recent HELP Committee in short supply or are unavailable, they supply provide not less than 1 year notice to hearing no vaccines, we listened to a do without, living unprotected against the Secretary of a discontinuance of the GAO report that acknowledged two disease. That should never happen. Our manufacture of the vaccine, or of other fac- critical components to protecting our bill is a step toward ensuring children tors, that may prevent the manufacturer children’s health security, and today I from providing vaccines pursuant to an ar- get the vaccines they need and that rangement made to carry out this section. rise to present legislation that would they get them at the right time. I urge ‘‘(2) REDUCTION OF PERIOD OF NOTICE.—The take these two important steps. my colleagues to join us in support of notification period required under paragraph Having the government stockpile this important public health legisla- (1) may be reduced if the manufacturer cer- vaccines is important because vaccine tion. tifies to the Secretary that good cause exists production is a complex process. The Mr. President, I ask unanimous con- for reduction, under the conditions described GAO report confirmed that a pause in sent that the text of the bill be printed in section 506C(b) of the Federal Food, Drug, production for safety reasons could and Cosmetic Act (21 U.S.C. 356c). in the RECORD. happen again and would have a critical There being no objection, the bill was ‘‘(e) PROCEEDS.—Any proceeds received by the Secretary from the sale of vaccines con- and devastating impact on the ability ordered to be printed in the RECORD, as tained in the supply maintained pursuant to to vaccinate children and adults. I ap- follows: this section, shall be available to the Sec- preciate the administration’s an- S. 371 retary for the purpose of purchasing addi- nounced commitment to provide funds Be it enacted by the Senate and House of Rep- tional vaccines for the supply. Such proceeds in the 2004 Budget for a vaccine stock- resentatives of the United States of America in shall remain available until expended. pile. The Childhood Vaccine Supply Congress assembled, ‘‘(f) ONGOING REPORTS.— Act would strengthen and support the SECTION 1. SUPPLY OF VACCINES. ‘‘(1) IN GENERAL.—Not later than 2 years after submitting the plan pursuant to sub- administration’s authority in these ef- Title XXI of the Public Health Service Act forts and assure that the stockpile in- (42 U.S.C. 300aa-1 et seq.) is amended by add- section (b), and periodically thereafter, the ing at the end the following: Secretary shall submit a report to the Com- cludes adults as well as all children, who were affected by the tetanus-diph- ‘‘Subtitle 3—Adequate Vaccine Supply mittees identified in subsection (b)(1) that— ‘‘(A) details the progress made in imple- theria toxoid shortage last year. ‘‘SEC. 2141. SUPPLY OF VACCINES. menting the plan developed under subsection *** ‘‘(a) IN GENERAL.— (a); and We also need an additional buffer be- ‘‘(1) PLAN.—Not later than 6 months after ‘‘(B) notes impediments, if any, to imple- the date of enactment of this section, the cause DCD acknowledges that it will menting the plan developed under subsection take 4 years before we can have a 6- Secretary, acting through the Director of (a). the Centers for Disease Control and Preven- month stockpile of childhood vaccines. ‘‘(2) RECOMMENDATION.—The Secretary tion, shall develop a plan for the purchase, shall include in the first of such reports re- We need a notification mechanism so storage, and rotation of a supply of vaccines quired under paragraph (1)— that CDC can work with other manu- sufficient to provide routinely recommended ‘‘(A) a recommendation as to whether the facturers to maintain the vaccine sup- vaccinations for a 6-month period for— vaccine supply should be extended beyond ply when a manufacturer cannot ‘‘(A) a national stockpile of vaccines for all the 6-month period provided in subsection produce an adequate supply of vaccine. children as authorized under section (a); and 1928(d)(6) of the Social Security Act (42 Each of the four major vaccine pro- ‘‘(B) a discussion of the considerations that ducers has stated that they do not ob- U.S.C. 1396s(d)(6)); and formed the recommendation under subpara- ‘‘(B) adults. graph (A). ject to this sort of an advance notice ‘‘(2) SUPPLY.—The supply of vaccines under ‘‘(g) AUTHORIZATION OF APPROPRIATIONS.— provision. The Childhood Vaccine Sup- paragraph (1) shall— There are authorized to be appropriated to ply Act would create a notification ‘‘(A) include all vaccines routinely rec- carry out this section such sums as may be mechanism for manufacturers to give ommended for children by the Advisory Com- necessary for each of fiscal years 2004 one-year advance notice when they in- mittee on Immunization Practices; and through 2009.’’. ‘‘(B) include all vaccines routinely rec- tend to stop making a vaccine. ommended for adults by the Advisory Com- Mrs. CLINTON. Mr. President, I rise We have worked amicably with Sen- mittee on Immunization Practices. today to discuss an important issue to ators FRIST, GREGG, and KENNEDY on ‘‘(3) SUPPLY AUTHORITY.—The Secretary which I have pledged my constant dedi- both of these vaccine provisions. We shall carry out— cation throughout my career—ensuring have work amicably with Senator

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00051 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.223 S12PT2 S2358 CONGRESSIONAL RECORD — SENATE February 12, 2003 FRIST on this issue and our vaccine cerned about the comments of environ- are often providing care in unaccept- provisions, and fully expect to continue mental organizations located in Wash- able circumstances. Restrictions for working with this bipartisan group of ington, DC or New York City than the mandatory overtime will help ensure Senators to accomplish the important people who actually live in the State that nurses are able to provide the goal of assuring safe vaccines for all where the proposed action will take highest quality of care to their pa- children. place. This is wrong. The concerns, tients. comments and input of state and local Some hospitals have taken action to By Mr. THOMAS (for himself and communities are vital for the proper deal with this serious problem. Over Mr. CRAIG): management of federal lands in the the last few years in Massachusetts S. 372. A bill to amend the National West. The ‘‘State and Local Govern- Brockton Hospital and St. Vincent Environmental Policy Act of 1969 to re- ment Participation Act of 2003’’ will Hospital agreed to limit mandatory quire that Federal agencies consult begin to address this troubling problem overtime as part of negotiations fol- with State agencies and county and and guarantee that local folks will be lowing successful strikes by nurses. local governments on environmental involved in proposed decision that will These limits will protect patients and impact statements; to the Committee affect their lives. improve working conditions for the on Environment and Public Works. I ask unanimous consent that the nurses, and will help in the recruit- Mr. THOMAS. Mr. President, I rise text of the bill be printed in the ment and retention of nurses in the fu- today to introduce the ‘‘State and RECORD. ture. Local Government Participation Act of There being no objection, the bill was Job dissatisfaction and harsh over- 2003’’ which would amend the National ordered to be printed in the RECORD, as time hours are major factors in the Environmental Policy Act, NEPA. This follows: current shortage of nurses. Nationally, bill is designed to guarantee that Fed- S. 372 the shortfall is expected to rise to 20 eral agencies identify State, county Be it enacted by the Senate and House of Rep- percent in coming years. The goal of and local governments as cooperating resentatives of the United States of America in the Safe Nursing and Patient Care Act agencies when fulfilling their environ- Congress assembled, is to improve the quality of life for mental planning responsibilities under SECTION 1. SHORT TITLE. nurses, so that more persons will enter NEPA. This Act may be cited as the ‘‘State and the nursing profession and remain in NEPA was designed to ensure that Local Government Participation Act of it. the environmental impacts of a pro- 2003’’. The bill limits mandatory overtime posed Federal action are considered SEC. 2. CONSULTATION WITH STATE AGENCIES to declared states of emergency. Clear- and minimized by the federal agency AND COUNTY AND LOCAL GOVERN- MENTS ON ENVIRONMENTAL IM- ly, there are times when other options taking that action. It was supposed to PACT STATEMENTS. are exhausted and hospitals need addi- provide for adequate public participa- Section 102(2)(C) of the National Environ- tional help. The bill takes account of tion in the decision making process on mental Policy Act of 1969 (42 U.S.C. such needs. The bill requires health these Federal activities and document 4332(2)(C)) is amended in the first sentence of providers to notify nurses of these new an agency’s final conclusions with re- the matter following clause (v) by striking rights, and nurses who report viola- ‘‘any Federal agency which has’’ and insert- spect to the proposed action. tions are guaranteed protection from Although this sounds simple and ing ‘‘each Federal agency, State agency, county government, and local government workplace discrimination. In addition, quite reasonable, NEPA has become a that has’’. the bill requires the Agency for Health real problem in Wyoming and many Care Research and Quality to report to States throughout the Nation. A stat- By Mr. KENNEDY (for himself, Congress on appropriate standards for ute that was supposed to provide for Mr. KERRY, Mr. AKAKA, Mrs. the maximum numbers of hours that additional public input in the federal CLINTON, Mr. CORZINE, Mr. nurses should work in various health land management process has instead DODD, Mr. INOUYE, Mr. FEIN- settings without compromising patient become an unworkable and cum- GOLD, Mr. LEVIN, Mr. care. bersome law. Instead of clarifying and LIEBERMAN, Ms. MIKULSKI, Mr. Improving conditions for nurses is an expediting the public planning process REED, and Mr. SARBANES): essential part of our ongoing effort to on Federal lands. NEPA now serves to S. 373. A bill to amend title XVIII of reduce medical errors, improve patient delay action and shut-out local govern- the Social Security Act to provide for outcomes, and encourage more Ameri- ments that depend on the proper use of patient protection by limiting the cans to become and remain nurses. The these Federal lands for their existence. number of mandatory overtime hours a power of providers to force nurses to The ‘‘State and Local Government nurse may be required to work in cer- work beyond what is safe for them- Participation Act’’ is designed to pro- tain providers of services to which pay- selves and their patients is one of the vide for greater input from State and ments are made under the medicare major drawbacks to careers in nursing. local governments in the NEPA proc- program; to the Committee on Fi- The Safe Nursing and Patient Care Act ess. This measure would simply guar- nance. is a significant step that Congress can antee that State, county and local Mr. KENNEDY. Mr. President, it is a take to support the Nation’s nurses, agencies be identified as cooperating privilege to join my colleagues, Sen- and I urge my colleagues to support it. entities when preparing land manage- ators KERRY, CLINTON, SARBANES, ment plans under NEPA. Although the CORZINE, MIKULSKI, DODD, LEVIN, REED, By Mr. BAUCUS (for himself, Mr. law already provides for voluntary in- LIEBERMAN, FEINGOLD, INOUYE, and BUNNING, Mr. ENZI, Mr. CRAPO, clusion of state and local entities in AKAKA in introducing the Safe Nursing Mr. BURNS, Mr. JOHNSON, Mr. the planning process, too often, the and Patient Care Act. BAYH, Mr. COCHRAN, Mr. INOFE, federal agencies choose to ignore local Current Federal safety standards Mr. ALLEN, Mr. NICKLES, Mr. governments when preparing planning limit work hours for pilots, flight at- WARNER, and Mr. MILLER): documents under NEPA. Unfortu- tendants, truck drivers, railroad engi- S. 374. A bill to amend the Internal nately, many Federal agencies have be- neers and other professionals, in order Revenue Code of 1986 to repeal the oc- come so engrossed in examining every to protect the public safety. However, cupational taxes relating to distilled environmental aspect of a proposed ac- no similar limitation currently exists spirits, wine, and beer; to the Com- tion on Federal land, they have forgot- for the Nation’s nurses, who care for so mittee on Finance. ten to consult with the folks who actu- many of our most vulnerable citizens. Mr. BAUCUS. Mr. President, it is ally live near and depend on these The Safe Nursing and Patient Care with great pleasure that I join my good areas for their economic survival. Act will limit mandatory overtime for friend and colleague, Senator Bunning States and local communities must nurses in order to protect patient safe- today in introducing legislation that be consulted and included when pro- ty and improve working conditions for will repeal the Special Occupational posed actions are being taken on Fed- nurses. Across the country today, the Tax, (SOT), on taxpayers who manufac- eral lands in their State. Too often, widespread practice of mandatory over- ture, distribute, and sell alcoholic bev- Federal land managers are more con- time means that over-worked nurses erages. The special occupational tax is

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00052 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.105 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2359 not a tax on alcoholic products, but several times, and found it fundamen- (3)(A) Subpart F of such part II (relating to rather operates as a license fee on busi- tally flawed. The Joint Committee on nonbeverage domestic drawback claimants) nesses. The tax is imposed on those en- Taxation called for the elimination of is redesignated as subpart B and sections gaged in the business of selling alcohol SOT in its June 2001 simplification 5131 through 5134 are redesignated as sec- tions 5111 through 5114, respectively. beverages. Believe it or not, this tax study. (B) The table of sections for such subpart was originally established to help fi- More than 90 percent of all SOT rev- B, as so redesignated, is amended— nance the Civil War. That war is over, enue comes from retailers—a great ma- (i) by redesignating the items relating to and this inequitable tax has outlived jority of that number are small busi- sections 5131 through 5134 as relating to sec- its original purpose. Clearly an exam- nesses. Recently, President Bush met tions 5111 through 5114, respectively, and ple of an anticipated approach to Fed- with a group of small business owners (ii) by striking ‘‘and rate of tax’’ in the eral taxation, repealing the SOT has an and employees in St. Louis. He said, item relating to section 5111, as so redesig- element of simplification in it. ‘‘The best way to encourage job growth nated. The SOT on alcohol dramatically in- (C) Section 5111 of such Code, as redesig- is to let [small businesses] keep more nated by subparagraph (A), is amended— creased during the budget process in of their own money, so they can invest (i) by striking ‘‘and rate of tax’’ in the sec- 1988 and has unfairly burdened business in their business and make it easier for tion heading, owners across the country since. From somebody to find work.’’ Repealing the (ii) by striking the subsection heading for Thompson Falls to Sidney, from Chi- SOT would provide an immediate and subsection (a), and nook to Billings, small businesses are visible tax cut to small business own- (iii) by striking subsection (b). burdened with yet another tax in the ers. (4) Part II of subchapter A of chapter 51 of form of the SOT. According to the Now, as the Federal Government con- such Code is amended by adding after sub- ATF, there are 480,427 locations nation- siders ways to provide additional eco- part B, as redesignated by paragraph (3), the following new subpart: wide that pay SOT’s every year, includ- nomic stimulus to the people who need ing 485,603 retailers. These retail estab- it most, the time is right for us to ‘‘Subpart C—Recordkeeping by Dealers lishments account for $114 million out move forward and enact this legisla- ‘‘Sec. 5121. Recordkeeping by wholesale deal- ers. of $126 million in SOT revenues. tion to repeal the SOT an alcohol. We ‘‘Sec. 5122. Recordkeeping by retail dealers. In Montana, there are 3,378 locations, urge our colleagues to join us in this including 3,254 restaurants and 494 con- endeavor. ‘‘Sec. 5123. Preservation and inspection of venience stores, which pay nearly $2 I ask unanimous consent that the records, and entry of premises for inspection.’’ million dollars in the SOT every year. text of the bill be printed in the (5)(A) Section 5114 of such Code (relating to Seasonal resorts in Whitefish and Yel- RECORD. lowstone, ‘‘mom and pop’’ convenience There being no objection, the bill was records) is moved to subpart C of such part II and inserted after the table of sections for stores in Butte, and allowing alleys, ordered to be printed in the RECORD, as such subpart. flower shops, and restaurants across follows: (B) Section 5114 of such Code is amended— Montana, and the United States, pay S. 374 (i) by striking the section heading and in- the Federal Government almost $100 Be it enacted by the Senate and House of Rep- serting the following new heading: million per year for the privilege of resentatives of the United States of America in ‘‘SEC. 5121. RECORDKEEPING BY WHOLESALE running businesses that sell beer, wine, Congress assembled, DEALERS.’’, or alcoholic beverages. SECTION 1. REPEAL OF OCCUPATIONAL TAXES and The SOT is extremely regressive. Re- RELATING TO DISTILLED SPIRITS, (ii) by redesignating subsection (c) as sub- WINE, AND BEER. tailers must annually pay $250 per loca- section (d) and by inserting after subsection (a) REPEAL OF OCCUPATIONAL TAXES.— (b) the following new subsection: tion; wholesalers pay $500; vintners and (1) IN GENERAL.—The following provisions ‘‘(c) WHOLESALE DEALERS.—For purposes of distillers pay $1000. Because the SOT is of part II of subchapter A of chapter 51 of the this part— levied on a per location basis, a sole Internal Revenue Code of 1986 (relating to oc- ‘‘(1) WHOLESALE DEALER IN LIQUORS.—The proprietorship must pay the same cupational taxes) are hereby repealed: term ‘wholesale dealer in liquors’ means any amount as one of the Nation’s largest (A) Subpart A (relating to proprietors of dealer (other than a wholesale dealer in beer) retailers, and locally-owned chains distilled spirits plants, bonded wine cellars, who sells, or offers for sale, distilled spirits, having to pay per location, would have etc.). wines, or beer, to another dealer. (B) Subpart B (relating to brewer). to pay as much as, if not more than, ‘‘(2) WHOLESALE DEALER IN BEER.—The term (C) Subpart D (relating to wholesale deal- ‘wholesale dealer in beer’ means any dealer the Nation’s largest single site brew- ers) (other than sections 5114 and 5116). who sells, or offers for sale, beer, but not dis- ery. In testimony before the Finance (D) Subpart E (relating to retail dealers) tilled spirits or wines, to another dealer. Committee last spring, a small busi- (other than section 5124). ‘‘(3) DEALER.—The term ‘dealer’ means any ness owner from Helena, MT who runs (E) Subpart G (relating to general provi- person who sells, or offers for sale, any dis- four convenience stores and three res- sions) (other than sections 5142, 5143, 5145, tilled spirits, wines, or beer. taurants said it best. ‘‘Whether it’s a and 5146). ‘‘(4) PRESUMPTION IN CASE OF SALE OF 20 seasonal restaurant, an Elks Lodge or (2) NONBEVERAGE DOMESTIC DRAWBACK.— WINE GALLONS OR MORE.—The sale, or offer Section 5131 of such Code is amended by American Legion, a bowling center, for sale, of distilled spirits, wines, or beer, in striking ‘‘, on payment of a special tax per quantities of 20 wine gallons or more to the campground, a florist who delivers gift annum,’’. same person at the same time, shall be pre- baskets containing wine, or a conven- (3) INDUSTRIAL USE OF DISTILLED SPIRITS.— sumptive evidence that the person making ience store operator, no one is spared Section 5276 of such Code is hereby repealed. such sale, or offer for sale, is engaged in or from the tax.’’ This is not what Con- (b) CONFORMING AMENDMENTS.— carrying on the business of a wholesale deal- gress had in mind 150 years ago, and I (1)(A) The heading for part II of subchapter er in liquors or a wholesale dealer in beer, as don’t believe it’s a situation we want A of chapter 51 of such Code and the table of the case may be. Such presumption may be today. subparts for such part are amended to read overcome by evidence satisfactorily showing Repealing the SOT on alcohol is sup- as follows: that such sale, or offer for sale, was made to a person other than a dealer.’’ ported by a broad-based group of busi- ‘‘PART II—MISCELLANEOUS PROVISIONS ‘‘Subpart A. Manufacturers of stills. (C) Paragraph (3) of section 5121(d) of such ness organizations and enjoys wide- Code, as so redesignated, is amended by ‘‘Subpart B. Nonbeverage domestic drawback spread bipartisan support on Capital striking ‘‘section 5146’’ and inserting ‘‘sec- claimants. Hill. Similar legislation is being intro- tion 5123’’. duced in the House today, and a bill, ‘‘Subpart C. Recordkeeping by dealers. (6)(A) Section 5124 of such Code (relating to identical to this one, was introduced in ‘‘Subpart D. Other provisions.’’ records) is moved to subpart C of part II of the previous Congress, but for one rea- (B) The table of parts for such subchapter subchapter A of chapter 51 of such Code and son or another, the law was not en- A is amended by striking the item relating inserted after section 5121. (B) Section 5124 of such Code is amended— acted. to part II and inserting the following new item: (i) by striking the section heading and in- The legislation preserves ATF’s serting the following new heading: record-keeping requirements, while re- ‘‘Part II. Miscellaneous provisions.’’ ‘‘SEC. 5122. RECORDKEEPING BY RETAIL DEAL- moving the agency’s enforcement bur- (2) Subpart C of part II of such subchapter ERS.’’, den, and will save up to $2 million per (relating to manufacturers of stills) is redes- (ii) by striking ‘‘section 5146’’ in subsection year. The GAO examined SOT efficacy ignated as subpart A. (c) and inserting ‘‘section 5123’’, and

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.102 S12PT2 S2360 CONGRESSIONAL RECORD — SENATE February 12, 2003 (iii) by redesignating subsection (c) as sub- 52 of such Code, inserted after section 5731, of the Special Occupancy Tax on alco- section (d) and inserting after subsection (b) redesignated as sections 5732, 5733, and 5734, hol. The Joint Committee found that the following new subsection: respectively, and amended by striking ‘‘this the tax is in the nature of a business li- ‘‘(c) RETAIL DEALERS.—For purposes of this part’’ each place it appears and inserting cense fee and serves no tax policy pur- section— ‘‘this subchapter’’. ‘‘(1) RETAIL DEALER IN LIQUORS.—The term (B) Section 5732 of such Code, as redesig- pose. ‘retail dealer in liquors’ means any dealer nated by subparagraph (A), is amended by I hope my colleagues will join Sen- (other than a retail dealer in beer) who sells, striking ‘‘(except the tax imposed by section ator BAUCUS and me in repealing this or offers for sale, distilled spirits, wines, or 5131)’’ each place it appears. burdensome tax once and for all. beer, to any person other than a dealer. (C) Subsection (c) of section 5733 of such ‘‘(2) RETAIL DEALER IN BEER.—The term ‘re- Code, as redesignated by subparagraph (A), is By Mr. DOMENICI (for himself, tail dealer in beer’ means any dealer who amended by striking paragraph (2) and by re- Mrs. LINCOLN, Mr. ROCKE- sells, or offers for sale, beer, but not distilled designating paragraph (3) as paragraph (2). FELLER, and Mr. THOMAS): spirits or wines, to any person other than a (D) The table of sections for subchapter D dealer. S. 275. A bill to amend title XVIII of of chapter 52 of such Code is amended by add- the Social Security Act to establish a ‘‘(3) DEALER.—The term ‘dealer’ has the ing at the end thereof the following: meaning given such term by section minimum geographic cost-of-practice 5121(c)(3).’’ ‘‘Sec. 5732. Payment of tax. index value for physicians’ services fur- (7) Section 5146 of such Code is moved to ‘‘Sec. 5733. Provisions relating to liability for nished under the medicare program of subpart C of part II of subchapter A of chap- occupational taxes. 1; to the Committee on Finance. ter 51 of such Code, inserted after section ‘‘Sec. 5734. Application of State laws.’’ Mr. DOMENICI. Mr. President, I rise 5122, and redesignated as section 5123. (E) Section 5731 of such Code is amended by today with my friends Senator LIN- (8) Part II of subchapter A of chapter 51 of striking subsection (c) and by redesignating such Code is amended by inserting after sub- COLN, Senator ROCKEFELLER, and Sen- subsection (d) as subsection (c). part C the following new subpart: ator THOMAS to introduce the ‘‘Medi- (19) Subsection (c) of section 6071 of such care Access Equity Act of 2003,’’ a bill ‘‘Subpart D—Other Provisions Code is amended by striking ‘‘section 5142’’ ‘‘Sec. 5131. Packaging distilled spirits for in- and inserting ‘‘section 5732’’. to address the inequality that exists in dustrial uses. (20) Paragraph (1) of section 7652(g) of such Medicare reimbursement levels to ‘‘Sec. 5132. Prohibited purchases by dealers.’’ Code is amended— urban and rural physicians. (9) Section 5116 of such Code is moved to (A) by striking ‘‘subpart F’’ and inserting Nothing is more important to our subpart D of part II of subchapter A of chap- ‘‘subpart B’’, and families than accessible and available ter 51 of such Code, inserted after the table (B) by striking ‘‘section 5131(a)’’ and in- health care. When we become ill and of sections, redesignated as section 5131, and serting ‘‘section 5111(a)’’. need treatment, we must turn to our amended by inserting ‘‘(as defined in section (c) EFFECTIVE DATE.—The amendments doctors for help. But, imagine this, a made by this section shall take effect on the 5121(c))’’ after ‘‘dealer’’ in subsection (a). hospital filled with the latest tech- (10) Subpart D of part II of subchapter A of date of the enactment of this Act, but shall not apply to taxes imposed for periods before nology, and no doctors to administer chapter 51 of such Code is amended by adding such date. treatment. at the end thereof the following new section: Does this sound ridiculous? It’s not. ‘‘SEC. 5132. PROHIBITED PURCHASES BY DEAL- Mr. BUNNING. Mr. President, I am ERS. happy to join my colleague, Senator Rural patients often have difficulty ob- ‘‘(a) IN GENERAL.—Except as provided in BAUCUS, in the introduction of legisla- taining timely care due to a shortage regulations prescribed by the Secretary, it tion to repeal the Special Occupational of physicians, and, the problem I have shall be unlawful for a dealer to purchase Tax on the sale of alcoholic beverages. described is not just occurring in my distilled spirits from any person other than a This is an unfair tax imposed on all home State of New Mexico, forty-one wholesale dealer in liquors who is required to keep the records prescribed by section 5121. businesses that manufacture, dis- other States are experiencing similar ‘‘(b) PENALTY AND FORFEITURE.— tribute or sell alcohol products. It has problems because of a common set of ‘‘For penalty and forfeiture provisions ap- a particularly egregious impact on the rules and procedures. plicable to violations of subsection (a), see Nation’s small businesses—the ‘‘Mom In most rural areas, Federal policy sections 5687 and 7302.’’ and Pop’’ convenience stores, the local undermines a doctor’s ability to see (11) Subsection (b) of section 5002 of such bowling alleys, the small sandwich Medicare patients by establishing dis- Code is amended— shop, the seasonal bait shop, and the parity in reimbursement levels. Rural (A) by striking ‘‘section 5112(a)’’ and in- community lodges. This regressive tax physicians are among the lowest Medi- serting ‘‘section 5121(c)(3)’’, imposes the same tax on little busi- care dollar reimbursement recipients (B) by striking ‘‘section 5112’’ and inserting nesses and large businesses. The tax is in the country, and I submit that this ‘‘section 5121(c)’’, levied as a fixed amount per location— is the reason these areas cannot effec- (C) by striking ‘‘section 5122’’ and inserting ‘‘section 5122(c)’’. $250 for retailers, $500 for wholesalers, tively recruit and retain their physi- (12) Subparagraph (A) of section 5010(c)(2) and $1,000 for vinters and distillers— cians. of such Code is amended by striking ‘‘section with no adjustment for the size of a Medicare payments for physician 5134’’ and inserting ‘‘section 5114’’. business. Thus, a family which owns services are based upon a fee schedule, (13) Subsection (d) of section 5052 of such two small convenience stores will pay intended to relate payments for a given Code is amended to read as follows: twice as much as a large one-location service to the actual resources used in ‘‘(d) BREWER.—For purposes of this chap- ‘‘super’’ party store. This tax results in providing that service. One component ter, the term ‘brewer’ means any person who brews beer or produces beer for sale. Such small retail outlets paying a larger of this fee schedule is ‘‘physician term shall not include any person who pro- percentage of their revenue towards work.’’ CMS defines ‘‘physician work’’ duces only beer exempt from tax under sec- this tax. In addition, the tax is not pro- as the amount of time, skill and inten- tion 5053(e).’’ rated, meaning that seasonal busi- sity necessary to provide service. (14) The text of section 5182 of such Code is nesses such as bait shops or marinas Each component of the fee schedule amended to read as follows: that are open for three months a year is multiplied by a geographic index; de- ‘‘For provisions requiring recordkeeping by will pay the same rate as businesses signed to adjust for variations in cost. wholesale liquor dealers, see section 5112, The geographic index as it relates to and by retail liquor dealers, see section that are open year-around. 5122.’’ Largely due to the negative impact ‘‘physician work’’ is lower in rural (15) Subsection (b) of section 5402 of such of this tax on small businesses, there areas than in metropolitan/urban Code is amended by striking ‘‘section 5092’’ has been strong bi-partisan support for areas. Thus, although rural physicians and inserting ‘‘section 5052(d)’’. its repeal in both the Senate and the put in as much or even more time, (16) Section 5671 of such Code is amended House. The effectiveness of the tax— skill, and intensity into their work as by striking ‘‘or 5091’’. which is traditionally quite expensive physicians in metropolitan/urban (17)(A) Part V of subchapter J of chapter 51 to administer—has been found to be areas; rural physicians are paid less for of such Code is hereby repealed. flawed by the General Accounting Of- their work. (B) The table of parts for such subchapter J is amended by striking the item relating to fice in several examinations. In a 2001 This practice is unfair and it is dis- part V. study on the simplification of the Fed- criminatory. There is no reason doc- (18)(A) Sections 5142, 5143, and 5145 of such eral tax system, the Joint Committee tors in Albuquerque, NM should be paid Code are moved to subchapter D of chapter on Taxation recommended the repeal less for their time than doctors in New

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.100 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2361 York City. Doctors should be valued indices in subparagraph (A)(iii), for purposes S. 377. A bill to require the Secretary equally, irrespective of geography. of payment for services furnished on or after of the Treasury to mint coins in com- The ‘‘Medicare Access Equity Act of January 1, 2004, the Secretary shall increase memoration of the contributions of Dr. 2003’’ fixes this problem. The Bill cre- the work geographic index to 1.00 for any lo- Martin Luther King, Jr., to the United ates a more equitable Medicare reim- cality for which such geographic index is less than 1.00.’’. States; to the Committee on Banking, bursement formula for doctors in 56 Housing, and Urban Affairs. Mrs. LINCOLN. Mr. President, I am different fee schedule areas in 42 dif- Ms. LANDRIEU. Mr. President, I rise pleased to join my colleague Senator ferent States. It continues to apply the today to introduce legislation to pay PETE DOMENICI today in introducing current formula to determine geo- tribute to one of our Nation’s most the ‘‘Medicare Access Equity Act of graphic index as it relates to physician prominent individuals, Dr. Martin Lu- 2003.’’ work. However, once the calculation This important legislation will sig- ther King, Jr. The Martin Luther King, has been completed, The Secretary will nificantly help rural physicians in Ar- Jr. Commemorative Coin Act of 2003 in- increase the work geographic index to kansas and across the country keep structs the Secretary of the Treasury one for any locality for which such their doors open to Medicare bene- to mint coins to recognize Dr. King’s index is below one. Those fee schedule ficiaries. By correcting a disparity in contribution to the people of the areas that are currently at or above the Medicare physician fee schedule, United States. Revenues from the sur- one will not be affected by this legisla- Medicare will pay rural physicians charge on the coin would go to the Li- tion. more fairly for their individual effort brary of Congress to purchase and Our Bill builds upon the simple prop- in treating Medicare patients. maintain historical documents and osition that increased Medicare Physi- In my home State of Arkansas, 60 other materials associated with the life cian reimbursements improve patient percent of seniors live in rural areas. and legacy of Martin Luther King, Jr. access to care and the ability of states Consequently, Medicare patients make This honor is long overdue. to recruit and retain physicians. If up a large percentage of a rural physi- His contributions to our Nation are Medicare physician reimbursement cian’s practice. well known and well documented. rates are raised, patients will be the ul- It is simply unfair that current Fed- From 1955 when he helped lead the timate beneficiaries. eral policy doesn’t value physician Montgomery Boycott to his death at Thank you and I look forward to work in all areas, urban and rural, in the hands of an assassin in 1968, Dr. working with my colleagues Senator the same way. Because the component King dedicated his life to the cause of LINCOLN, Senator ROCKEFELLER, and of the fee schedule that relates to phy- civil rights. In those 13 years, he was Senator THOMAS on this very impor- sician work is multiplied by a geo- jailed several times, got cursed at and tant issue. graphic indicator adjusting for stoned by mobs, reviled by racist at- I ask unanimous consent that the variants in cost, Medicare payment tacks in the South. Civil rights text of the bill be printed in the policy devalues the amount of time and marches for freedoms we take for RECORD. skill that rural physicians spend in granted today like the right to vote or There being no objection, the bill was providing medical services. drink from the same water fountain, ordered to be printed in the RECORD, as I believe that work is work, regard- were met with police dogs and fire follows: less of where it is performed. It takes hoses. S. 375 the same amount of time and skill for Honoring Dr. King also means hon- Be it enacted by the Senate and House of Rep- a physician in Pea Ridge, AR to treat a oring those local leaders in the civil resentatives of the United States of America in wound or diagnose a patient as a physi- rights struggle who kept Dr. King’s vi- Congress assembled, cian in Los Angeles, CA. It is time to sion alive at the grassroots. In my par- SECTION 1. SHORT TITLE; FINDINGS. correct this inequity. ticular home State of Louisiana, Rev. (a) SHORT TITLE.—This Act may be cited as The Medicare Access Equity Act does Dr. T.J. Jemison led a successful bus the ‘‘Medicare Access Equity Act of 2003’’. this by revising the geographic prac- boycott in our State capital Baton (b) FINDINGS.—Congress makes the fol- tice cost indices GPCI, to establish a lowing findings: Rouge. He became an advisor to Dr. minimum index of 1 for the ‘‘physician (1) Americans have paid taxes in to the King during the Montgomery Bus boy- work’’ component. The bill applies the medicare program equally across the coun- cott. Many of these local leaders faced current formula to determine physi- try and every American should have access constant danger at home. One cian work GPCIs, but if a GPCI is cal- to quality health care. Louisianan, Dr. C.O. Simpkins of (2) There is a national market for health culated to be less than 1, the Secretary care providers. of Health and Human Services will in- Shreveport had his home bombed sim- (3) Increasingly, private insurance compa- crease it to 1. ply because he dared to stand by Dr. nies tie their reimbursement rates to those This is critical to my home State of King and demand that the buses in paid by medicare. Arkansas, where the physician work Shreveport be integrated. (4) The physician fee schedule formula for GPCI is currently 0.953, the sixth low- But Dr. King urged us to fight hate medicare currently includes several adjust- with love, quell violence with peace, ments for variable costs throughout the na- est GPCI in the country. Increasing Ar- kansas’ work GPCI to 1 will automati- and to replace ignorance with under- tion. While it is appropriate for the cost of standing. He believed in a higher call- running a practice to reflect overhead dif- cally pump more money to rural physi- ferences, physicians should not be com- cians in Arkansas, where many may ing for America. In his famous ‘‘I Have pensated for their time differently based on begin to close their doors due to the a Dream’’ speech at the Lincoln Memo- where they live. rising costs of providing health care. rial in 1963, he called on America to (5) Medicare beneficiaries pay the same It is my hope that Senator DOMENICI live up to its creed, that all men were part B premium regardless of location which and I, with help from the Senate Rural created equal. America heeded his call forces subsidization of higher reimbursement Health Caucus, can pass this important by passing landmark civil rights legis- areas by seniors in lower reimbursement legislation as part of any Medicare re- lation in 1958 and 1964. For his work, he areas without any corresponding benefit. received the Novel Peace Prize in 1964. (6) Areas of the country that currently re- form we consider this year. Fair reim- ceive the lowest reimbursement from medi- bursement is key to ensuring that At 35 years old, Dr. King was the care are often the same areas that are expe- rural Americans retain the quality youngest recipient of the Peace Prize. riencing the greatest shortage of physicians. health care they receive from their Today, our Nation is a better place Attracting more physicians to these areas doctors. than it was just 40 years ago. It is truly cannot be achieved without greater equity in remarkable how much this nation has medicare reimbursement. By Ms. LANDRIEU (for herself, changed in the lifetimes of virtually SEC. 2. ESTABLISHMENT OF FLOOR ON WORK GE- Mr. BREAUX, Mr. COCHRAN, Mr. everyone currently serving in the Sen- OGRAPHIC ADJUSTMENT. JOHNSON, Mr. NELSON of Flor- ate. Our nation has made great strides Section 1848(e)(1) of the Social Security ida, Mr. VOINOVICH, Mr. REID, Act (42 U.S.C. 1395w–4(e)(1)) is amended by forward, but race relations in our coun- adding at the end the following new subpara- Mr. SANTORUM, Mr. DURBIN, Mr. try are not perfect. But we are working graph: CHAFEE, Mr. FEINGOLD, Mr. to get there. ‘‘(E) FLOOR AT 1.0 ON WORK GEOGRAPHIC INDI- LIEBERMAN, Ms. STABENOW, and A nineteenth century rabbi named CES.—After calculating the work geographic Mr. MILLER): Zadok Rabinwitz said that ‘‘A man’s

VerDate Jan 31 2003 01:23 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.225 S12PT2 S2362 CONGRESSIONAL RECORD — SENATE February 12, 2003 dreams are an index to his greatness.’’ ticular frustration over the difficulty standing any contrary provision of the prom- Dr. King had a dream. His dream is be- they experience in attracting qualified issory note under which a loan under part E coming our nation’s reality. By any individuals to teach at tribal colleges. of title IV of the Higher Education Act of measure his dreams were great and Geographic isolation and low faculty 1965 (20 U.S.C. 1087aa et seq.) was made. (c) FFEL AND DIRECT LOANS.—Part G of they made a great Nation even greater. salaries have made recruitment and re- title IV of the Higher Education Act of 1965 I urge my colleagues to support the tention particularly difficult for many (20 U.S.C. 1088 et seq.) is amended by adding Martin Luther King, Jr. Commemora- of these schools. This problem is in- at the end the following: tive Coin Act of 2003. creasing as enrollment rises. ‘‘SEC. 493C. LOAN REPAYMENT OR CANCELLA- That is why I am introducing the TION FOR INDIVIDUALS WHO TEACH By Mr. DASCHLE (for himself, IN TRIBAL COLLEGES OR UNIVER- Tribal College and University Teacher SITIES. Mr. BINGAMAN, Mr. CONRAD, Mr. Loan Forgiveness Act. This legislation ‘‘(a) PROGRAM AUTHORIZED.—The Secretary BAUCUS, Mr. JOHNSON, and Mr. will provide loan forgiveness to indi- shall carry out a program, through the hold- KOHL): viduals who commit to teach for up to er of a loan, of assuming or canceling the ob- S. 378. A bill to recruit and retain five years in one of the 34 tribal col- ligation to repay a qualified loan amount, in more qualified individuals to teach in leges nationwide. Individuals who have accordance with subsection (b), for any new Tribal Colleges or Universities; to the Perkins, Direct, or Guaranteed loans borrower on or after the date of enactment of the Tribal Colleges and Universities Committee on Indian Affairs. may qualify to receive up to $15,000 in Mr. DASCHLE. Mr. President, our Teacher Loan Forgiveness Act, who— loan forgiveness. This program will tribal colleges and universities have ‘‘(1) has been employed as a full-time provide these schools extra help in at- come to play a critically important teacher at a Tribal College or University as tracting qualified teachers, and thus defined in section 316(b); and role in educating Native Americans help ensure that deserving students re- ‘‘(2) is not in default on a loan for which across the country. For more than 30 the borrower seeks repayment or cancella- years, these institutions have proven ceive a high quality education. This measure will benefit individual tion. instrumental in providing a quality ‘‘(b) QUALIFIED LOAN AMOUNTS.— students and their communities. By education for those who had previously ‘‘(1) PERCENTAGES.—Subject to paragraph been failed by our mainstream edu- providing greater opportunities for Na- (2), the Secretary shall assume or cancel the cational system. Before the tribal col- tive American students to develop obligation to repay under this section— lege movement began, only six or seven skills and expertise, this bill will spur ‘‘(A) 15 percent of the amount of all loans out of 100 Native American students at- economic growth and help bring pros- made, insured, or guaranteed after the date perity and self-sufficiency to commu- of enactment of the Tribal Colleges and Uni- tended college. Of those few, only one versities Teacher Loan Forgiveness Act to a or two would graduate with a degree. nities that desperately need it. Native Americans and the tribal college sys- student under part B or D, for the first or Since these institutions have curricula second year of employment described in sub- that is culturally relevant and is often tem deserve nothing less. I believe our section (a)(1); focused on a tribe’s particular philos- responsibility was probably best ‘‘(B) 20 percent of such total amount, for ophy, culture, language and economic summed up by one of my state’s great- the third or fourth year of such employment; needs, they have a high success rate in est leaders, Sitting Bull. He once said, and educating Native American people. ‘‘Let us put our minds together and see ‘‘(C) 30 percent of such total amount, for I had the honor today of meeting what life we can make for our chil- the fifth year of such employment. ‘‘(2) MAXIMUM.—The Secretary shall not with students, faculty and presidents dren.’’ I am pleased that Senator’s BAUCUS, repay or cancel under this section more than from South Dakota’s tribal colleges to $15,000 in the aggregate of loans made, in- BINGAMAN, CONRAD, JOHNSON, and KOHL talk about the educational needs of Na- sured, or guaranteed under parts B and D for tive Americans and the role tribal col- are original cosponsors of this bill, and any student. leges play in strengthening tribal com- I look forward to working with my col- ‘‘(3) TREATMENT OF CONSOLIDATION LOANS.— munities. It, like so many of the meet- leagues to pass this important legisla- A loan amount for a loan made under section ings I have had with representatives of tion. 428C may be a qualified loan amount for the tribal colleges, was a fascinating con- I ask unanimous consent that the purposes of this subsection only to the ex- versation. I am consistently impressed text of the Tribal College and Univer- tent that such loan amount was used to sity Teacher Loan Forgiveness Act be repay a loan made, insured, or guaranteed by the enduring spirit, sense of commu- under part B or D for a borrower who meets nity and hope for a better quality of printed in the RECORD. There being no objection, the bill was the requirements of subsection (a), as deter- life that these institutions support. mined in accordance with regulations pre- After meeting these students and edu- ordered to be printed in the RECORD, as scribed by the Secretary. cators, I have no doubt that the future follows: ‘‘(c) REGULATIONS.—The Secretary is au- of Indian Country is in good hands. S. 378 thorized to issue such regulations as may be The results of a tribal college edu- Be it enacted by the Senate and House of Rep- necessary to carry out the provisions of this cation are impressive. Recent studies resentatives of the United States of America in section. Congress assembled, ‘‘(d) CONSTRUCTION.—Nothing in this sec- show that 91 percent of 1998 tribal col- tion shall be construed to authorize any re- lege and university graduates are SECTION 1. LOAN REPAYMENT OR CANCELLA- funding of any repayment of a loan. TION FOR INDIVIDUALS WHO TEACH working or pursuing additional edu- ‘‘(e) PREVENTION OF DOUBLE BENEFITS.—No IN TRIBAL COLLEGES OR UNIVER- cation one year after graduating. In ad- SITIES. borrower may, for the same service, receive dition, the unemployment rate of re- (a) SHORT TITLE.—This Act may be cited as a benefit under both this section and subtitle cently polled tribal college graduates the ‘‘Tribal Colleges and Universities Teach- D of title I of the National and Community was 15 percent, compared to 55 percent er Loan Forgiveness Act’’. Service Act of 1990 (42 U.S.C. 12571 et seq.). ‘‘(f) DEFINITION.—For purposes of this sec- (b) PERKINS LOANS.— on many reservations overall. tion, the term ‘year’, when applied to em- While tribal colleges and universities (1) AMENDMENT.—Section 465(a) of the Higher Education Act of 1965 (20 U.S.C. ployment as a teacher, means an academic have been highly successful in helping year as defined by the Secretary.’’. Native Americans obtain a higher edu- 1087ee(a)) is amended— (A) in paragraph (2)— SEC. 2. AMOUNTS FORGIVEN NOT TREATED AS cation, many challenges remain to en- (i) in subparagraph (H), by striking ‘‘or’’ GROSS INCOME. The amount of any loan that is assumed or sure the future success of these institu- after the semicolon; canceled under an amendment made by this tions. These schools rely heavily on (ii) in subparagraph (I), by striking the pe- Act shall not, consistent with section 108(f) Federal resources to provide edu- riod and inserting ‘‘; or’’; and of the Internal Revenue Code of 1986, be (iii) by adding at the end the following: cational opportunities for all students. treated as gross income for Federal income ‘‘(J) as a full-time teacher at a Tribal Col- As a result, I strongly support efforts tax purposes. to provide additional funding to these lege or University as defined in section colleges through the Interior, Agri- 316(b).’’; and By Mr. BINGAMAN (for himself (B) in paragraph (3)(A)(i), by striking ‘‘or culture and Labor, Health and Human (I)’’ and inserting ‘‘(I), or (J)’’. and Mr. THOMAS): Services, and Education Appropria- (2) EFFECTIVE DATE.—The amendments S. 379. A bill to amend title XVIII of tions bills. made by paragraph (1) shall be effective for the Social Security Act to improve the In addition to resource constraints, service performed during academic year 1998– medicare incentive payment program; administrators have expressed a par- 1999 and succeeding academic years, notwith- to the Committee on Finance.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00056 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.118 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2363 Mr. BINGAMAN. Mr. President, the Medicare audits, just for applying for SEC. 2. PROCEDURES FOR SECRETARY, AND NOT legislation I am introducing today with the very payments for which they are PHYSICIANS, TO DETERMINE WHEN BONUS PAYMENTS UNDER MEDI- Senators THOMAS, LINCOLN, and JOHN- eligible. CARE INCENTIVE PAYMENT PRO- SON entitled ‘‘The Medicare Incentive Providers committed to serving GRAM SHOULD BE MADE. Payment Program Improvement Act of Medicare patients in underserved areas Section 1833(m) of the Social Security Act 2003’’ is designed to improve the flow of deserve the support assured by the (42 U.S.C. 1395l(m)) is amended— (1) by inserting ‘‘(1)’’ after ‘‘(m)’’; and needed bonus payments to physicians original legislation’s intent. serving Medicare patients in Health (2) by adding at the end the following new The Medicare Incentive Payment Im- paragraph: Professions Shortage Areas, HPSA. provement Act of 2003 addresses and ‘‘(2) The Secretary shall establish proce- The Medicare Incentive Payment improves shortcomings in the original dures under which the Secretary, and not the Program, MIPP, created by the Omni- legislation by: Placing the burden for physician furnishing the service, is respon- bus Budget Reconciliation Act of 1987, sible for determining when a payment is re- determining the bonus eligibility on was meant to assist physicians in de- quired to be made under paragraph (1).’’. the Medicare carrier. Eliminating fraying the higher costs and burdens of SEC. 3. EDUCATIONAL PROGRAM REGARDING automatic provider audits. Directing serving Medicare patients in shortage THE MEDICARE INCENTIVE PAY- the Center for Medicare and Medicaid MENT PROGRAM. areas. Rural areas are know to suffer Services to establish a Medicare Incen- The Secretary of Health and Human Serv- from physician shortages, both pri- tive Payment Program Educational ices shall establish and implement an ongo- mary care and specialty physicians. In Program for Providers. Establishing an ing educational program to provide edu- fact, even though 20 percent of America ongoing analysis of the programs, abil- cation to physicians under the medicare pro- lives in a rural area, less than 11 per- gram on the medicare incentive payment ity to improve Medicare beneficiaries’ cent of physicians in the U.S., practice program under section 1833(m) of the Social access to physician services. Continue in rural areas. Security Act (42 U.S.C. 1395l(m)). In my own State, the ongoing loss of to provide the original 10 percent add- SEC. 4. ONGOING STUDY AND ANNUAL REPORT physicians from underserved areas has on bonus for Part B physician pay- ON THE MEDICARE INCENTIVE PAY- MENT PROGRAM. affected both primary care and in par- ments in Health Provider Shortage Areas. (a) ONGOING STUDY.—The Secretary of ticular, specialty services. In many Health and Human Services shall conduct an areas, the shortage of specialists ex- Medicare carriers are the logical ar- ongoing study on the medicare incentive ceeds that of the primary care physi- biters to determine whether physician payment program under section 1833(m) of cians. The New Mexico Health Policy services occurred in a shortage area. the Social Security Act (42 U.S.C. 1395l(m)). Commission reported in its year 2000 Physicians, already overworked, lack Such study shall focus on whether such pro- report that 22 percent of residents in sufficient time, resources and training gram increases the access of medicare bene- Los Alamos and Santa Fe were unable to research and determine whether a ficiaries who reside in an area that is des- service was provided in a HPSA. By ignated (under section 332(a)(1)(A) of the to receive needed specialist care. Public Health Service Act (42 U.S.C. While the national ratio of physi- placing the responsibility on carriers, 254e(a)(1)(A))) as a health professional short- cians per population is 198 doctors per with their sophisticated information age area to physicians’ services under the 100,000 persons, New Mexico ranks 33rd systems, the physician’s administra- medicare program. in the country with only 170 physicians tive burdens will be reduced. (b) ANNUAL REPORTS.—Not later than 1 per 100,000 population. We are not in a The automatic audits triggered by year after the date of enactment of this Act, position to ‘‘grow our own doctors’’ ei- this program, which are costly, time and annually thereafter, the Secretary of ther as New Mexico ranks 37th among Health and Human Services shall submit to intensive, and unwarranted, will be Congress a report on the study conducted the 46 States with medical schools in lifted under our legislation. By placing under subsection (a), together with rec- graduating physicians per capita. the responsibility on carriers to deter- ommendations for such legislation and ad- New Mexico, like many other States mine payment eligibility the need for ministrative actions as the Secretary con- with large numbers health profession provider audits is eliminated. siders appropriate. shortage areas, or HPSAs, must rely on While the MIPP program is intended By Ms. COLLINS (for herself, Mr. its ability to recruit and retain physi- to improve beneficiaries’ access to phy- CARPER, and Mr. BROWNBACK): cians in underserved areas to meet the sician services, there is no measure of S. 380. A bill to amend chapter 83 of health care needs of its citizens. It was the program’s effect on physician title 5, United States Code, to reform the original intent of the MIPP to do availability. The legislation offered the funding of benefits under the Civil this, by allowing for physicians in un- today directs CMS to perform an ongo- Service Retirement System for em- derserved areas to receive an addi- ing analysis as to whether these pay- ployees of the United States Postal tional 10 percent add-on in payments ments actually do improve bene- Service, and for other purposes; to the for services rendered. These 10 percent ficiaries’ access to physician services. ‘‘bonuses’’ are meant to be an essential Committee on Governmental Affairs. component in our ongoing effort to en- I believe these improvements, in ad- Ms. COLLINS. Mr. President, today, I sure Medicare beneficiaries access to dition to others listed above, will rise to offer to the Senate some good medical services, particularly in under- greatly improve patient’s access to news for our mailers and, indeed, any- served areas. care. one who uses the United States Postal Unfortunately, the Medicare Incen- The following organizations have ex- Service. The USPS, which has been los- tive Payment Program has fared poor- pressed support for this legislation: ing significant amounts of money in re- ly, with few providers choosing to re- American College of Physicians/Amer- cent years despite repeated increases in ceive the payments. In fact, the total ican Society of Internal Medicine, and postage rates, has determined that its annual physician payments have never the National Rural Health Association. finances are in better order than pre- exceeded $100 million, because of a se- I ask unanimous consent that the viously thought. If Congress acts expe- ries of disincentives in the legislation. text of the bill be printed in the ditiously on legislation that I am in- The program requires a provider to RECORD. troducing today along with my col- do a number of things to obtain the There being no objection, the bill was league, Senator CARPER, the Postal bonus payments. First, providers must ordered to be printed in the RECORD, as Service will avoid an imminent rate be aware that MIPP payments are follows: hike. available to them. Many providers are In recent years, the United States unaware of the program’s existence. S. 3 Postal Service has been raising postal Next, physicians must find out if the Be it enacted by the Senate and House of Rep- rates at a rapid pace. When the USPS patient’s medical care occurred in a resentatives of the United States of America in last raised rates in 2002, it was the shortage area. Following this, a unique Congress assembled, third such rate increase during an 18- code must be attached to the Medicare SECTION 1. SHORT TITLE. month period. Such steep, irregular claim, which is then forwarded to the This Act may be cited as the ‘‘Medicare In- rate increases make it very difficult carrier. Finally, after all these steps, centive Payment Program Improvement Act for businesses to plan for their postal providers are subjected to automatic of 2003’’. costs. This is a particular problem for

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.110 S12PT2 S2364 CONGRESSIONAL RECORD — SENATE February 12, 2003 catalog companies and magazine pub- of skepticism. As the old saying goes, ‘‘(18) ‘Fund balance’— lishers, which set their prices in ad- ‘‘if it sounds too good to be true, it ‘‘(A) means the current net assets of the vance based on assumptions about probably is.’’ However, the Office of Fund available for payment of benefits, as postal rates. Mailing costs for some Management and Budget, as well as the determined by the Office in accordance with appropriate accounting standards; and smaller catalog businesses, I am told, U.S. Treasury Department, have con- ‘‘(B) shall not include any amount attrib- now can exceed production costs. firmed OPM’s analysis. Further, having utable to— In so many ways, postage rate in- spoken with experts outside the gov- ‘‘(i) the Federal Employees’ Retirement creases have a significant economic ernment as well, I have become satis- System; or impact. As rates increase, so do the fied that this situation represents a ‘‘(ii) contributions made under the Federal costs Americans bear to send letters, rare exception to the rule. Employees’ Retirement Contribution Tem- mail packages, and pay their bills. That is why Senator CARPER and I porary Adjustment Act of 1983 by or on be- Rate increases also raise the cost of today introduce the Postal Civil Serv- half of any individual who became subject to the Federal Employees’ Retirement Sys- goods, which, of course, reflect not ice Retirement System Funding Act of tem;’’; only the cost to ship but also the cost 2003. Our bill will correct the statutory (3) in paragraph (27), by striking ‘‘and’’ at to advertise by mail. funding mechanism for the Civil Serv- the end; But rate increases reflect the price of ice Retirement System, CSRS. This (4) in paragraph (28), by striking the period maintaining an ever-expanding postal legislation is necessary to prevent the and inserting ‘‘; and’’; and network and the infrastructure to sus- overpayment of retirement contribu- (5) by adding at the end the following: tain it. Each year, the Postal Service tions by the U.S. Postal Service. Most ‘‘(29) ‘dynamic assumptions’ means eco- adds 1.7 million new addresses. This important, this bill directs OPM to de- nomic assumptions that are used in deter- equates to 4,800 new letter carriers mining actuarial costs and liabilities of a re- termine a new amortization schedule tirement system and in anticipating the ef- making deliveries to over 513 million that will pay off the Postal Service’s fects of long-term future— new delivery stops each year, all while existing unfunded CSRS liability of $5 ‘‘(A) investment yields; maintaining one of the lowest first- billion. ‘‘(B) increases in rates of basic pay; and class letter rates in the world. In addition, the legislation requires ‘‘(C) rates of price inflation.’’. In addition to providing a critical that the savings resulting from this (b) DEDUCTIONS, CONTRIBUTIONS, AND DE- service to individual postal patrons, Act be used to reduce the postal debt in POSITS.—Section 8334 of title 5, United States the Postal Service is a powerful eco- Code, is amended by striking the matter fol- a manner that the Secretary of Treas- lowing the section heading through para- nomic engine. The USPS is the elev- ury shall specify. It also expresses the graph (1) and inserting the following: enth largest enterprise in the Nation sense of Congress that the Postal Serv- ‘‘(a)(1)(A) The employing agency shall de- with $66 billion in annual revenue, ice should use these savings to fulfill duct and withhold from the basic pay of an more than Microsoft, McDonald’s and its commitment to hold postal rates employee, Member, congressional employee, Coca Cola combined. While the Postal unchanged until at least 2006, to begin law enforcement officer, firefighter, bank- Service itself employs more than to pay a portion of their massive un- ruptcy judge, judge of the United States 700,000 career employees, it is also the Court of Appeals for the Armed Forces, funded health care liabilities, and that United States magistrate judge, Court of linchpin of a $900 billion mailing indus- the savings not be used to pay bonuses Federal Claims judge, member of the Capitol try that employs nine million Ameri- to Postal Service executives. Police, member of the Supreme Court Police, cans in fields as diverse as direct mail- The USPS needs other changes as or nuclear materials courier, as the case may ing, printing and paper production. well, something acknowledged by ev- be, the percentage of basic pay applicable That is why the deteriorating state eryone inside and outside the Postal under subsection (c). of the United States Postal Service’s Service. I was pleased that President ‘‘(B)(i) Except in the case of an employee of the United States Postal Service, an equal finances has been a source of great con- Bush appointed a Commission on the cern to many of us. After several years amount shall be contributed from the appro- U.S. Postal Service that is modeled priation or fund used to pay the employee or, of large losses, the USPS has been along the principles outlined in legisla- in the case of an elected official, from an ap- slowly approaching its statutory bor- tion I introduced last year. I am hope- propriation or fund available for payment of rowing limit of $15 billion. ful that when the Commission reports other salaries of the same office or establish- A few months ago, however, the Of- this summer, it will provide us with a ment. When an employee in the legislative fice of Personnel Management discov- blueprint to ensure that our postal sys- branch is paid by the Chief Administrative ered that the USPS will dramatically tem is ready to serve twenty-first cen- Officer of the House of Representatives, the Chief Administrative Officer may pay from over-fund its contributions to the Civil tury America as ably as it has served Service Retirement Fund unless the the applicable accounts of the House of Rep- us in the past. I look forward to receiv- resentatives the contribution that otherwise law is changed. After having based the ing the Commission’s report and any would be contributed from the appropriation Postal Service’s annual contributions recommendations for legislation it or fund used to pay the employee. on the assumption that it had an actu- may include. ‘‘(ii) In the case of an employee of the arial deficit of $32 billion, OPM discov- I ask unanimous consent that the United States Postal Service, an amount ered instead that the USPS’s CSRS def- text of the bill be printed in the shall be contributed from the appropriation or fund used to pay the employee equal to icit was actually only $5 billion. The RECORD. difference is primarily due to higher the difference between— There being no objection, the bill was ‘‘(I) the product of— than expected yields on pension invest- ordered to be printed in the RECORD, as ‘‘(aa) the basic pay of that employee; and ments by the Department of the Treas- follows: ‘‘(bb) the normal cost percentage applica- ury. If the USPS continues to fund the S. 380 ble to the employee category of that em- CSRS at its current pace, it will over- Be it enacted by the Senate and House of Rep- ployee under paragraph (1)(A); and fund its CSRS liability by $78 billion. resentatives of the United States of America in ‘‘(II) the product of— If Congress approves the changes to Congress assembled, ‘‘(aa) the basic pay of that employee; and ‘‘(bb) the percentage applicable to that em- the payment schedule as my bill pro- SECTION 1. SHORT TITLE. ployee under subsection (c) deducted from vides, the Postal Service’s CSRS retire- This Act may be cited as the ‘‘Postal Civil ment expense would be reduced by $2.9 basic pay under paragraph (1)(A).’’. Service Retirement System Funding Reform (c) CIVIL SERVICE RETIREMENT AND DIS- billion in fiscal year 2003 and another Act of 2003’’. ABILITY FUND.— $2.8 billion in fiscal year 2004. The SEC. 2. CIVIL SERVICE RETIREMENT SYSTEM. (1) IN GENERAL.—Section 8348 of title 5, USPS would be able to reduce its debt (a) DEFINITIONS.—Section 8331 of title 5, United States Code, is amended by striking by more than $3 billion in fiscal year United States Code, is amended— subsection (h) and inserting the following: 2003, and anticipated rate increases (1) in paragraph (17)— ‘‘(h)(1)(A) In this subsection, the term would be delayed until at least 2006, (A) by striking ‘‘normal cost’’ the first ‘Postal supplemental liability’ means the es- place that term appears and inserting ‘‘nor- timated excess, as determined by the Office ushering in an era of stable and pre- mal cost percentage’’; and of Personnel Management, of the difference dictable postal rates. (B) by inserting ‘‘and standards (using dy- between— My initial response upon hearing this namic assumptions)’’ after ‘‘practice’’; ‘‘(i) the actuarial present value of all fu- good news was one of pleasant surprise (2) by striking paragraph (18) and inserting ture benefits payable from the Fund under but mixed, I admit, with a healthy dose the following: this subchapter attributable to the service of

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current or former employees of the United (2) TECHNICAL AND CONFORMING AMEND- (3) none of the savings referred to in para- States Postal Service; and MENT.—Section 8334 of title 5, United States graph (1) should be used to pay bonuses to ‘‘(ii) the sum of— Code, is amended by striking subsection (m). Postal Service executives. ‘‘(I) the actuarial present value of deduc- (d) OTHER PAYMENTS.— (f) REPORT RELATING TO UNFUNDED tions to be withheld from the future basic (1) IN GENERAL.—Section 7101(c) of the Om- HEALTHCARE COSTS.— pay of employees of the United States Postal nibus Budget Reconciliation Act of 1990 (5 (1) IN GENERAL.—The United States Postal Service currently subject to this subchapter U.S.C. 8348 note; Public Law 101–508; 104 Stat. Service shall, by December 31, 2003, in con- under section 8334; 1388–331) is repealed. sultation with the General Accounting Of- ‘‘(II) the actuarial present value of the fu- (2) EFFECT ON PRIOR PAYMENTS.—The repeal fice, prepare and submit to the President and ture contributions to be made under section under paragraph (1) shall have no effect on the Congress a report describing how the 8334 with respect to employees of the United payments made under the repealed provi- Postal Service proposes to address its obliga- States Postal Service currently subject to sions before the date of enactment of this tions relating to unfunded postretirement this subchapter; Act. healthcare costs of current and former postal ‘‘(III) that portion of the Fund balance, as SEC. 3. DISPOSITION OF SAVINGS ACCRUING TO employees. of the date the Postal supplemental liability THE UNITED STATES POSTAL SERV- (2) PRESIDENT’S COMMISSION.—In preparing is determined, attributable to payments to ICE. its report under this subsection, the Postal (a) IN GENERAL.—Savings accruing to the the Fund by the United States Postal Serv- Service should consider the report of the United States Postal Service as a result of ice and employees of the United States Post- President’s Commission on the United States the enactment of this Act shall be used to re- al Service, including earnings on those pay- Postal Service under section 5 of Executive duce the postal debt to such extent and in Order 13278 (67 Fed. Reg. 76672). ments; and such manner as the Secretary of the Treas- (3) GAO REVIEW AND REPORT.—Not later ‘‘(IV) any other appropriate amount, as de- ury shall specify, consistent with succeeding than 30 days after the Postal Service submits termined by the Office in accordance with provisions of this section. its report pursuant to paragraph (1), the Gen- generally accepted actuarial practices and (b) AMOUNTS SAVED.— eral Accounting Office shall prepare and sub- principles. (1) IN GENERAL.—The amounts representing ‘‘(B)(i) In computing the actuarial present any savings accruing to the Postal Service in mit a written evaluation of such report to value of future benefits, the Office shall in- any fiscal year as a result of the enactment the Committee on Government Reform of clude the full value of benefits attributable of this Act shall be computed by the Office of the House of Representatives and the Com- to military and volunteer service for United Personnel Management in accordance with mittee on Governmental Affairs of the Sen- States Postal Service employees first em- paragraph (2). ate. (g) DETERMINATION AND DISPOSITION OF ployed after June 30, 1971, and a prorated (2) METHODOLOGY.—Not later than July 31, SURPLUS.— share of the value of benefits attributable to 2003, for fiscal year 2003, and October 1 of the military and volunteer service for United fiscal year before each fiscal year beginning (1) IN GENERAL.—If, as of the date under States Postal Service employees first em- after September 30, 2003, and before the date paragraph (2), the Office of Personnel Man- ployed before July 1, 1971. specified in paragraph (4), the Office of Per- agement determines (after consultation with ‘‘(ii) Military service included in the com- sonnel Management shall— the Postmaster General) that the computa- putation under clause (i) shall not be in- (A) formulate a plan specifically enumer- tion under section 8348(h)(1)(A) of title 5, cluded in computation of the payment re- ating the methods by which the Office shall United States Code, yields a negative quired under subsection (g)(2). make its computations under paragraph (1); amount (hereinafter referred to as a ‘‘sur- ‘‘(2)(A) Not later than June 30, 2004, the Of- and plus’’)— fice of Personnel Management shall deter- (B) submit such plan to the Committee on (A) the Office shall inform the Postmaster mine the Postal supplemental liability, as of Government Reform of the House of Rep- General of its determination, including the September 30, 2003. The Office shall establish resentatives and the Committee on Govern- size of the surplus so determined; and an amortization schedule, including a series mental Affairs of the Senate. (B) the Postmaster General shall submit to of equal annual installments commencing (3) REQUIREMENTS.—Each such plan shall the Congress a report describing how the September 30, 2004, which provides for the be formulated in consultation with the Post- Postal Service proposes that such surplus be liquidation of such liability by September 30, al Service and shall include the opportunity used, including a draft of any legislation 2043. for the Postal Service to request reconsider- that might be necessary. ‘‘(B) The Office shall redetermine the Post- ation of computations under this subsection, (2) DETERMINATION DATE.—The date to be al supplemental liability as of the close of and for the Board of Actuaries of the Civil used for purposes of paragraph (1) shall be the fiscal year, for each fiscal year beginning Service Retirement System to review and September 30, 2025, or such earlier date as, in after September 30, 2003, through the fiscal make adjustments to such computations, to the judgment of the Office, is the date by year ending September 30, 2038, and shall es- the same extent and in the same manner as which all postal employees under the Civil tablish a new amortization schedule, includ- provided under section 8423(c) of title 5, Service Retirement System will have re- ing a series of equal annual installments United States Code. tired. commencing on September 30 of the subse- (4) DURATION.—Nothing in this subsection SEC. 4. EFFECTIVE DATE. quent fiscal year, which provides for the liq- or subsection (a) shall be considered to apply (a) IN GENERAL.—This Act shall take effect uidation of such liability by September 30, with respect to any fiscal year beginning on on the date of enactment of this Act. (b) APPLICATION.—Section 8334(a)(1)(B)(ii) 2043. or after October 1, 2007. of title 5, United States Code (as added by ‘‘(C) The Office shall redetermine the Post- (c) REPORTING REQUIREMENT.—The Postal section 2(b) of this Act), shall apply only al supplemental liability as of the close of Service shall include in each report which is rendered under section 2402 of title 39, United with respect to pay periods beginning on or the fiscal year for each fiscal year beginning after the date of enactment of this Act. after September 30, 2038, and shall establish States Code, and which relates to any period after the date of the enactment of this Act a new amortization schedule, including a se- Mr. CARPER. I am pleased today to and before the date specified in subsection ries of equal annual installments com- be able to join my friend from Maine, (b)(4), the amount applied toward reducing mencing on September 30 of the subsequent the chair of the Governmental Affairs the postal debt, and the size of the postal fiscal year, which provides for the liquida- debt before and after the application of sub- Committee, in introducing the Postal tion of such liability over 5 years. section (a), during the period covered by Civil Service Retirement System Fund- ‘‘(D) Amortization schedules established such report. ing Reform Act of 2003. This bill is of under this paragraph shall be set in accord- (d) POSTAL DEBT DEFINED.—For purposes of vital interest to the future of the Post- ance with generally accepted actuarial prac- this section, the term ‘‘postal debt’’ means al Service and enjoys the strong sup- tices and principles, with interest computed the outstanding obligations of the Postal at the rate used in the most recent valuation port of postal management, postal em- Service, as determined under chapter 20 of ployees and postal customers. of the Civil Service Retirement System. title 39, United States Code. ‘‘(E) The United States Postal Service (e) SENSE OF CONGRESS.—It is the sense of According to OPM and GAO, the shall pay the amounts determined under this the Congress that— Postal Service will significantly paragraph for deposit in the Fund, with pay- (1) the savings accruing to the Postal Serv- overfund its obligations to its employ- ments due not later than the date scheduled ice as a result of the enactment of this Act ees enrolled in the Civil Service Retire- by the Office. will be sufficient to allow the Postal Service ment System if it continues paying at ‘‘(3) Notwithstanding any other provision to fulfill its commitment to hold postage the current rate. The Reform Act ad- of law, in computing the amount of any pay- rates unchanged until at least 2006; dresses this by reducing the amount of ment under any provision other than this (2) because the Postal Service still faces money the Postal Service is required to subsection that is based upon the amount of substantial obligations related to postretire- the unfunded liability, such payment shall ment health benefits for its current and pay into CSRS each year to reflect a be computed disregarding that portion of the former employees, some portion of the sav- more accurate estimate of its obliga- unfunded liability that the Office determines ings referred to in paragraph (1) should be tions that has been prepared by OPM. will be liquidated by payments under this used to address those unfunded obligations; In the current fiscal year, this will re- subsection.’’. and duce the Postal Service’s annual CSRS

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.119 S12PT2 S2366 CONGRESSIONAL RECORD — SENATE February 12, 2003 payment by nearly $3 billion. These formation necessary to make the Post- resources paying lawyers instead using savings, and savings of similar size pro- al Service viable in the electronic age. the mail. I call on my colleagues to act jected for future years, will be used to President Bush’s Commission on the quickly on the Reform Act to prevent retire a portion of the Postal Service’s United States Postal Service will re- this from happening. $11.1 billion debt to Treasury. The lease a set of postal reform proposals Postal Service had previously only this summer that I hope will offer some By Mr. DORGAN (for himself, Mr. been able to budget $800 million for fair, balanced recommendations that CAMPBELL, Mr. BINGAMAN, Mr. debt reduction this fiscal year. we can use to begin drafting legisla- INOUYE, Ms. LANDRIEU, Mr. Most importantly, the savings the tion. I plan to put forward a proposal of JOHNSON, Ms. CANTWELL, Mr. Postal Service will enjoy if the Reform my own this year that maintains uni- WARNER, Mrs. LINCOLN, and Mr. Act becomes law will allow it to hold versal service and current delivery TALENT): the price of postage steady until at standards while giving the Postal Serv- S. 382. A bill to amend title XVIII of least 2006. This is important because, ice the kind of flexibility its private the Social Security Act to provide for while what the Postal Service charges sector competitors have to set prices coverage of cardiovascular screening for its services is still a bargain when and cut costs. I look forward to work- tests under the medicare program; to compared to the prices charged by ing with Chairman Collins and all of the Committee on Finance. most foreign posts, postal customers my colleagues on the Governmental Af- Mr. DORGAN. Mr. President, I am have absorbed multiple rate increases fairs Committee in getting a postal re- pleased to be introducing today the in recent months that have raised the form bill signed into law during the Medicare Cholesterol Screening Cov- price of postage by more than the rate 108th Congress. erage Act of 2003, along with my col- of inflation. At a time when the econ- In closing, I would like to briefly ad- leagues, Senators CAMPBELL, BINGA- omy is weak and modes of communica- dress some of the similarities between MAN, INOUYE, LINCOLN, LANDRIEU, WAR- tion like e-mail and electronic bill pay the Reform Act and the Managerial NER, JOHNSON, CANTWELL and TALENT. are more popular than ever, another Flexibility Act President Bush pro- Companion legislation is being intro- rate increase this year could be a dis- posed during the 107th Congress and duced in the House of Representatives aster for the Postal Service. If the make an important distinction be- today by Representative DAVE CAMP price of postage goes up again in 2004, tween the two proposals. Like the Man- and Representative WILLIAM JEFFER- as I expect it to if the Reform Act is agerial Flexibility Act would have SON. not enacted, the Postal Service will done for all Federal agencies, the Re- I think it is appropriate to be intro- likely lose a good deal of business. form Act makes the Postal Service re- ducing this bill during ‘‘American Companies will be more aggressive in sponsible for benefits due to its CSRS Heart Month.’’ For the last 40 years, encouraging their customers to com- enrollees as a result of prior military Congress and the President have recog- municate with them online. Large service and amortizes its unfunded nized American Heart Month because mailers will reduce volume and let CSRS obligations over a period of 40 of the need to continue the fight workers go. Everyday users of the mail years. The Managerial Flexibility Act against heart disease—our country’s #1 will be forced to bear another large also would have required Federal agen- killer and a leading cause of disability. spike in the price of a first-class stamp. cies to begin funding their retiree Cardiovascular diseases take an enor- All of this would come at a time when health benefits on a cost accrual basis, mous human and financial toll on our the Postal Service is predicting an in- something the Postal Service should be Nation. Every 33 seconds, an American crease in volume for the first time in able to do if the Reform Act becomes dies from cardiovascular disease. quite a while. The Reform Act will law and it begins to see some savings. About 41 percent of deaths each year keep mail in the system and give mail- This kind of accounting makes sense in are from cardiovascular diseases—more ers the opportunity to increase the the case of the Postal Service, which than the next 6 leading causes of death amount of business they do with the by law must be self-sufficient and must combined. Adding cholesterol screen- Postal Service. pay its employees’ pension and health ing testing to the menu of preventive The Reform Act, however, does not costs through the price of postage. The services already covered by Medicare is remove the Postal Service’s obligation utility of requiring all Federal agen- yet another step we can and should to continue on the modernization pro- cies to account for their employees’ re- take in the fight against these insid- gram begun under Postmaster General tirement costs in this way is not clear ious diseases. Jack Potter. General Potter came on to me. As CBO points out in its Janu- Cardiovascular diseases account for the job at a difficult time for the Post- ary 23rd evaluation of the version of one-third of all of Medicare’s spending al Service but has led them in a suc- the Reform Act proposed by OPM late for hospitalizations. Yet the identifica- cessful effort to streamline operations, last year, recognizing the accrual cost tion of one of the major, changeable taking billions of dollars in costs out of of agency retirement benefits by man- risk factors for cardiovascular dis- the system without hurting service. dating payments between agencies and ease—high levels of cholesterol—is not That process needs to continue. the Treasury does not provide the gov- covered by Medicare. The Reform Act also does not elimi- ernment with the resources necessary The National Heart, Lung, and Blood nate the need for the Postal Service to to make future payments when they Institute and the American Heart As- deal with the future cost of retiree come due and does not lessen the bur- sociation recommend that all Ameri- health benefits. These costs are esti- den on future taxpayers to pay them. cans over the age of 20 have their cho- mated at about $50 billion. The Postal In the case of the Postal Service, how- lesterol levels tested at least once Service funds them now on a pay-as- ever, the kind of accounting contained every five years. But when an Amer- you-go basis, meaning they are not re- in the Managerial Flexibility Act will ican turns 65 and enters the Medicare flected in the price of postage today. If give postal customers, who must plan program, their coverage for cholesterol not addressed soon, these costs will be how much they mail in future years screening stops. That is just not right. pushed on to future ratepayers, forcing based on how much they anticipate Adding a cholesterol screening ben- the Postal Service to begin raising postage will cost, a more realistic idea efit to Medicare is a common-sense, rates dramatically once the baby boom of what the Postal Service’s future cost-effective step. According to the generation begins to retire. Some of costs of doing business will be. Congressional Budget Office, this ben- the savings the Postal Service will If the Reform Act is not enacted be- efit would cost only $20 million a enjoy if the Reform Act becomes law fore April 1st, the Postal Service will year—a small fraction of the $26 billion should be used to prevent this from need to assume that they will be re- that Medicare spends each year for hos- happening. quired to make the large CSRS pay- pitalizations of patients with cardio- Finally, the Reform Act does not re- ment required of them under current vascular diseases. move Congress’s obligation to enact law, forcing them to file the rate case I am pleased that language similar to postal reform legislation this year that they have been preparing. This will my bill was included in S. 3018, bipar- will help the Postal Service and Gen- force mailers to begin litigating the tisan Medicare legislation introduced eral Potter continue the trans- case, meaning they will begin spending last fall by the leaders of the Finance

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.228 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2367 Committee, Senators GRASSLEY and (c) FREQUENCY.—Section 1862(a)(1) of the Currently, 130 truckloads of waste BAUCUS. Unfortunately, however, the Social Security Act (42 U.S.C. 1395y(a)(1)) is come into Michigan each day from Senate did not act on this bill before amended— Canada. These trucks cross the Ambas- (1) by striking ‘‘and’’ at the end of subpara- adjourning last year. sador Bridge and Blue Water Bridge I hope Congress will act soon to pro- graph (H); (2) by striking the semicolon at the end of and travel through the busiest parts of vide Medicare coverage of cholesterol subparagraph (I) and inserting ‘‘, and’’; and Metro Detroit. In addition to causing screening, and I encourage my col- (3) by adding at the end the following new traffic delays, and filling our air with leagues to cosponsor this bill. subparagraph: the stench of exhaust and garbage, Another way my colleagues can help ‘‘(J) in the case of a cardiovascular screen- these trucks also present a security in the fight against heart disease is by ing test (as defined in section 1861(ww)(1)), risk at our Michigan-Canadian border, joining the Congressional Heart and which is performed more frequently than is since by their nature trucks full of gar- covered under section 1861(ww)(2).’’. Stroke Coalition. The Congressional bage are harder for Customs agent to Heart and Stroke Coalition was found- (d) EFFECTIVE DATE.—The amendments made by this section shall apply to tests fur- inspects then traditional cargo. ed in 1996 and I am honored to serve as nished on or after January 1, 2004. Last year, I joined with Senator one of its co-founders and co-chairs. LEVIN and Congressman DINGELL to in- Since its inception, this bicameral, bi- By Ms. STABENOW. troduce legislation to enforce the pro- partisan Coalition has grown to nearly S. 383. A bill to amend the Solid tections that Michigan is already enti- 200 Members. Waste Disposal Act to prohibit the im- tled to which are contained in an inter- Its purpose is to raise awareness portation of Canadian municipal solid national agreement between the United among Congress and the public about waste without State consent; to the States and Canada. I continue to be heart attack, stroke, and other cardio- Commitment on Environment and Pub- supportive of this bill and I was proud vascular diseases and to support public lic Works. to join as an original co-sponsor when Ms. STABENOW. Mr. President, I policies to prevent, treat, and ulti- it was reintroduced last month. How- rise today to introduce a bill to address mately cure these diseases. I encourage ever, with the recent landfill closings the growing problem of Canadian waste those Members who have not already in Ontario, this problem has spiraled shipments to Michigan. joined the Congressional Heart and out of control. Stroke Coalition to do so. In 2001, Michigan imported almost 3.6 million tons of municipal solid waste, That is why today I am introducing I look forward to working with my ‘‘the Canadian Waste Import Ban Act colleagues to add a cholesterol screen- more than double the amount that was imported in 1999. This gives Michigan of 2003.’’ This bill would stop these ing benefit for Medicare beneficiaries shipments by placing an immediate and to make progress in the fight the unduly distinction of being the third largest dumping ground of waste federal ban on the importation of Cana- against cardiovascular diseases. dian municipal solid waste. The ban I ask unanimous consent that the in the United States. will be in place until the EPA enforces text of this bill be printed in the My colleagues may be surprised to ‘‘the Agreement Concerning the RECORD. know that the biggest source of this There being no objection, the bill was waste was not another State, but our Transboundary Movement of Haz- ardous Waste.’’ Under this existing ordered to be printed in the RECORD, as neighbor to north, Canada. More than follows: half the waste that was shipped to agreement, the EPA is supposed to re- ceive notification of Canadian waste S. 382 Michigan in 2001 was from Ontario, shipments, and then would have 30 days Be it enacted by the Senate and House of Rep- Canada, and these imports are growing resentatives of the United States of America in rapidly. On January 1, 2003, as another to consent or object to the shipment. Congress assembled, Ontario landfill closed its doors, the Not only have these notification provi- SECTION 1. SHORT TITLE. City of Toronto switched from shipping sions not been enforced, but the EPA This Act may be cited as the ‘‘Medicare two-thirds of its trash, to shipping all has indicated that they would not ob- Cholesterol Screening Coverage Act of 2003’’. of its trash—1.1 million tons—to a ject to the municipal waste shipments. SEC. 2. COVERAGE OF CARDIOVASCULAR Michigan landfill. And this deal could In addition, the bill requires the EPA SCREENING TESTS. last 20 years! Experts predict that soon to Michigan’s or any State’s consent (a) COVERAGE.—Section 1861(s)(2) of the So- before receiving any shipment of Cana- cial Security Act (42 U.S.C. 1395x(s)(2)) is there will be virtually no local disposal amended— capacity in Ontario, which could mean dian municipal solid waste. In enforc- (1) in subparagraph (U), by striking ‘‘and’’ even more waste being shipped across ing the agreement, the EPA must ob- at the end; the border to Michigan. tain the consent of the receiving State, (2) in subparagraph (V)(iii), by inserting Not only does this waste dramati- before consenting to a Canadian munic- ‘‘and’’ at the end; and cally decrease Michigan’s own landfill ipal solid waste shipment. The EPA (3) by adding at the end the following new capacity, but it has a tremendous nega- must also consider the impact of the subparagraph: tive impact on Michigan’s environment shipment on homeland security, the ‘‘(W) cardiovascular screening tests (as de- and the public health of citizens. Cur- environment, and public health. fined in subsection (ww)(1));’’. (b) SERVICES DESCRIBED.—Section 1861 of rently, Canadian municipal solid waste This legislation will stop the impor- the Social Security Act (42 U.S.C. 1395x) is is sent to landfills in seven different tation of Canadian trash until Michi- amended by adding at the end the following Michigan counties—Genesee, Huron, gan residents are given the voice they new subsection: Macomb, Monroe, Oakland, deserve in deciding whether or not this ‘‘Cardiovascular Screening Tests Washtenaw, and Wayne counties. Based waste should be sent to their landfills. ‘‘(ww)(1) The term ‘cardiovascular screen- on current usage statistics, the Michi- We need to give the states a real voice ing tests’ means the following diagnostic gan Department of Environmental in these decisions and my bill guaran- tests for the early detection of cardio- Quality, DEQ, estimates that Michigan tees that the states through the EPA vascular disease: has capacity for 15–17 years of disposal will get to decide whether or not they ‘‘(A) Tests for the determination of choles- in landfills. However, with the pro- want to receive this Canadian waste. terol levels. posed dramatic increase in importation ‘‘(B) Tests for the determination of lipid Mr. President, I ask unanimous con- levels of the blood. of waste, this capacity is less than 10 sent that the text of the bill be printed ‘‘(C) Such other tests for cardiovascular years. The Michigan DEQ estimates in the RECORD. disease as the Secretary may approve. that for every five years of disposal of There being no objection, the bill was ‘‘(2)(A) Subject to subparagraph (B), the Canadian waste at the current usage ordered to be printed in the RECORD, as Secretary shall establish standards, in con- volume, Michigan is losing a full year follows: sultation with appropriate organizations, re- of landfill capacity. The Canadian S. 383 garding the frequency and type of cardio- waste also hampers the effectiveness of vascular screening tests. Be it enacted by the Senate and House of Rep- ‘‘(B) With respect to the frequency of car- Michigan’s State and local recycling resentatives of the United States of America in diovascular screening tests approved by the efforts, since Ontario does not have a Congress assembled, Secretary under subparagraph (A), in no case bottle law requiring recycling. SECTION 1. SHORT TITLE. may the frequency of such tests be more These Canadian waste shipments also This Act may be cited as the ‘‘Canadian often than once every 2 years.’’. present a threat to homeland security. Waste Import Ban Act of 2003’’.

VerDate Jan 31 2003 01:23 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.229 S12PT2 S2368 CONGRESSIONAL RECORD — SENATE February 12, 2003 SEC. 2. CANADIAN MUNICIPAL SOLID WASTE. ‘‘(II) transported for the purpose of treat- mittee on Small Business and Entre- (a) IN GENERAL.—Subtitle D of the Solid ment, storage, or disposal to a facility preneurship: Waste Disposal Act (42 U.S.C. 6941 et seq.) is (which facility is in compliance with applica- S. RES. 55 amended by adding at the end the following: ble State and local land use and zoning laws ‘‘SEC. 4011. CANADIAN MUNICIPAL SOLID WASTE. and regulations) or facility unit— Resolved, That, in carrying out its powers, ‘‘(a) DEFINITIONS.—In this section: ‘‘(aa) that is owned or operated by the gen- duties, and functions under the Standing ‘‘(1) AGREEMENT.—The term ‘Agreement’ erator of the waste; Rules of the Senate, in accordance with ju- means— ‘‘(bb) that is located on property owned by risdiction under rules XXV of such rules, in- ‘‘(A) the Agreement Concerning the the generator of the waste or a company cluding holding hearings, reporting such Transboundary Movement of Hazardous with which the generator is affiliated; or hearings, and making investigations as au- Waste between the United States and Can- ‘‘(cc) the capacity of which is contrac- thorized by paragraphs 1 and 8 of rule XXVI ada, signed at Ottawa on October 28, 1986 tually dedicated exclusively to a specific of the Standing Rules of the Senate, the (TIAS 11099) and amended on November 25, generator; Committee on Small Business and Entrepre- 1992; and ‘‘(vi) medical waste that is segregated from neurship is authorized from March 1, 2003, ‘‘(B) any regulations promulgated to im- or not mixed with solid waste; through September 30, 2003, and October 1, plement and enforce that Agreement. ‘‘(vii) sewage sludge or residuals from a 2003 through September 30, 2004, and October ‘‘(2) CANADIAN MUNICIPAL SOLID WASTE.— sewage treatment plant; 1, 2004 through February 28, 2005, in its dis- The term ‘Canadian municipal solid waste’ ‘‘(viii) combustion ash generated by a re- cretion (1) to make expenditures from the means municipal solid waste that is gen- source recovery facility or municipal incin- contingent fund of the Senate, (2) to employ erated in Canada. erator; or personnel, and (3) with the prior consent of ‘‘(3) MUNICIPAL SOLID WASTE.— ‘‘(ix) waste from a manufacturing or proc- the Government department or agency con- ‘‘(A) IN GENERAL.—The term ‘municipal essing (including pollution control) oper- cerned and the Committee on Rules and Ad- solid waste’ means— ation that is not essentially the same as ministration, to use on a reimbursable or ‘‘(i) material discarded for disposal by— waste normally generated by households. non-reimbursable basis the services of per- sonnel of any such department of agency. ‘‘(I) households (including single and mul- ‘‘(b) BAN ON CANADIAN MUNICIPAL SOLID SEC. 2. (a) The expenses of the committee tifamily residences); and WASTE.— for the period March 1, 2003, through Sep- ‘‘(II) public lodgings such as hotels and mo- ‘‘(1) IN GENERAL.—Except as provided in tember 30, 2003, under this resolution shall tels; and paragraph (2), until the date on which the not exceed $1,215,913, of which amount (1) not ‘‘(ii) material discarded for disposal that Administrator promulgates regulations to to exceed $10,000 may be expended for the was generated by commercial, institutional, implement and enforce the Agreement (in- procurement of the services of individual and industrial sources, to the extent that the cluding notice and consent provisions of the consultants, or organizations thereof (as au- material— Agreement), no person may import into any thorized by section 202(i) of the Legislative ‘‘(I)(aa) is essentially the same as material State, and no solid waste management facil- Reorganization Act of 1946, as amended), and described in clause (i); or ity may accept, Canadian municipal solid ‘‘(bb) is collected and disposed of with ma- (2) not to exceed $10,000 may be expended for waste for the purpose of disposal or inciner- terial described in clause (i) as part of a nor- the training of the professional staff of such ation of the Canadian municipal solid waste. mal municipal solid waste collection service; committee (under procedures specified by ‘‘(2) ELECTION BY GOVERNOR.—The Governor and section 202(i) of the Legislative Reorganiza- of a State may elect to opt out of the ban ‘‘(II) is not subject to regulation under sub- tion Act of 1946). under paragraph (1), and consent to the im- title C. (b) For the period of October 1, 2003, portation and acceptance by the State of Ca- ‘‘(B) INCLUSIONS.—The term ‘municipal through September 30, 2004, expenses of the nadian municipal solid waste before the date solid waste’ includes— committee under this resolution shall not specified in that paragraph, if the Governor ‘‘(i) appliances; exceed $2,139,332, of which amount (1) not to submits to the Administrator a notice of ‘‘(ii) clothing; exceed $10,000 may be expended for the pro- that election by the Governor. ‘‘(iii) consumer product packaging; curement of the services of individual con- ‘‘(c) AUTHORITY OF ADMINISTRATOR.— ‘‘(iv) cosmetics; sultants, or organizations thereof (as author- ‘‘(1) IN GENERAL.—Beginning immediately ‘‘(v) debris resulting from construction, re- ized by section 292(i) of the Legislative Reor- after the date of enactment of this section, modeling, repair, or demolition of a struc- ganization Act of 1946, as amended) and (2) the Administrator shall— ture; not to exceed $10,000 may be expended for the ‘‘(A) perform the functions of the Des- ‘‘(vi) disposable diapers; training of the professional staff of such ignated Authority of the United States de- ‘‘(vii) food containers made of glass or committee (under procedures specified by scribed in the Agreement with respect to the metal; section 202(j) of the Legislative Reorganiza- importation and exportation of municipal ‘‘(viii) food waste; tion Act of 1946). ‘‘(ix) household hazardous waste; solid waste under the Agreement; and (c) For the period of October 1, 2004 ‘‘(x) office supplies; ‘‘(B) implement and enforce the Agreement through February 28, 2005, expenses of the ‘‘(xi) paper; and (including notice and consent provisions of committee under this resolution shall not ‘‘(xii) yard waste. the Agreement). exceed $911,668, of which amount (1) not to ‘‘(C) EXCLUSIONS.—The term ‘municipal ‘‘(2) CONSENT TO IMPORTATION.—In consid- exceed $10,000 may be expended for the pro- solid waste’ does not include— ering whether to consent to the importation curement of the services of individual con- ‘‘(i) solid waste identified or listed as a of Canadian municipal solid waste under ar- sultants, or organizations thereof (as author- hazardous waste under section 3001, except ticle 3(c) of the Agreement, the Adminis- ized by section 202(i) of the Legislative Reor- for household hazardous waste; trator shall— ganization Act of 1946, as amended), and (2) ‘‘(ii) solid waste, including contaminated ‘‘(A) obtain the consent of each State into not to exceed $10,000 may be expended for the soil and debris, resulting from— which the Canadian municipal solid waste is training of the professional staff of such ‘‘(I) a response action taken under section to be imported; and committee (under procedures specified by 104 or 106 of the Comprehensive Environ- ‘‘(B) consider the impact of the importa- section 202(j) of the Legislative Reorganiza- mental Response, Compensation, and Liabil- tion on homeland security, public health, tion Act of 1946). ity Act (42 U.S.C. 9604, 9606); and the environment.’’. SEC. 3. The committee may report its find- ‘‘(II) a response action taken under a State (b) CONFORMING AMENDMENT.—The table of ings, together with such recommendations law with authorities comparable to the au- contents of the Solid Waste Disposal Act (42 for legislation as it deems advisable, to the thorities contained in either of those sec- U.S.C. prec. 6901) is amended by adding after Senate at the earliest practicable date, not tions; or the item relating to section 4010 the fol- later than February 28, 2003. ‘‘(III) a corrective action taken under this lowing: SEC. 4. Expenses of the committee under Act; ‘‘Sec. 4011. Canadian municipal solid this resolution shall be paid from the contin- ‘‘(iii) recyclable material— waste.’’. gent fund of the Senate upon vouchers ap- ‘‘(I) that has been separated, at the source f proved by the chairman of committee, ex- of the material, from waste destined for dis- cept that vouchers shall not be required (1) posal; or SUBMITTED RESOLUTIONS for the disbursement of salaries of employees ‘‘(II) that has been managed separately paid at an annual rate, or (2) for the pay- from waste destined for disposal, including ment of telecommunications provided by the scrap rubber to be used as a fuel source; SENATE RESOLUTION 55—AUTHOR- Office of the Sergeant at Arms and Door- ‘‘(iv) a material or product returned from a IZING EXPENDITURES BY THE keeper, United States Senate, or (3) for the dispenser or distributor to the manufacturer COMMITTEE ON SMALL BUSI- payment of stationary supplies purchased or an agent of the manufacturer for credit, NESS AND ENTREPRENEURSHIP through the Keeper of the Stationary, evaluation, and possible potential reuse; United States Senate, or (4) for payments to ‘‘(v) solid waste that is— Ms. SNOWE (for herself and Mr. the Postmaster, United States Senate, or (5) ‘‘(I) generated by an industrial facility; KERRY) submitted the following resolu- for the payment of metered charges on copy- and tion; which was referred to the Com- ing equipment provided by the Office of the

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.122 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2369 Sergeant at Arms and Doorkeeper, United SEC. 3. The committee shall report its find- Finance be authorized to meet during States Senate, or (6) for the payment of Sen- ings, together with such recommendations the session on Wednesday, February 12, ate Recording Photographic Services, or (7) for legislation as it deems advisable, to the 2003, at 9:30 a.m., to hear testimony on for payment of franked mail cost by the Ser- Senate at the earliest practicable date, but geant at Arms and Doorkeeper, United not later than February 28, 2005, respec- Examination of Proposals for Eco- States Senate. tively. nomic Growth and Job Creation: Incen- SEC. 5. There are authorized such sums as SEC. 4. Expenses of the committee under tives for Investment. may be necessary for agency contributions this resolution shall be paid from the contin- The PRESIDING OFFICER. Without related to the compensation of employees of gent fund of the Senate upon vouchers ap- objection, it is so ordered. proved by the chairman of the committee, the committee from March 1, 2003, through COMMITTEE ON FOREIGN RELATIONS September 30, 2003, and October 1, 2003, except that vouchers shall not be required (1) through September 30, 2004, and October 1, for the disbursement of salaries of employees Mr. KYL. Mr. President, I ask unani- 2004, through February 28, 2005, to be paid paid at an annual rate, or (2) for the pay- mous consent that the Committee on from the Appropriations account for ‘‘Ex- ment of telecommunications provided by the Foreign Relations be authorized to penses of Inquiries and Investigations’’. Office of the Sergeant at Arms and Door- meet during the session of the Senate keeper, United States Senate, or (3) for the on Wednesday, February 12, 2003 at 9:30 SENATE RESOLUTION 56—AUTHOR- payment of stationery supplies purchased a.m. to hold a Hearing on The Recon- IZING EXPENDITURES BY THE through the Keeper of the Stationery, United struction of Afghanistan: An Update. States Senate, or (4) for payments to the COMMITTEE ON THE BUDGET Postmaster, United States Senate, or (5) for AGENDA Mr. NICKLES submitted the fol- the payment of metered charges on copying Witnesses: Panel 1: The Hon. David T. lowing resolution; from the Committee equipment provided by the Office of the Ser- Johnson, Coordinator for Afghanistan As- on the Budget; which was referred to geant at Arms and Doorkeeper, United sistance, Department of State, Washington, the Committee on Rules and Adminis- States Senate, or (6) for the payment of Sen- DC. ate Recording and Photographic Services, or The Hon. Dr. Peter W. Rodman, Assistant tration: (7) for payment of franked and mass mail Secretary of Defense for International Secu- S. RES. 56 costs by the Sergeant at Arms and Door- rity Affairs, Department of Defense, Wash- Resolved, That, in carrying out its powers, keeper, United States Senate. ington, DC. duties, and functions under the Standing SEC. 5. There are authorized such sums as Panel 2: The Hon. Ishaq Shahryar, Ambas- Rules of the Senate, in accordance with its may be necessary for agency contributions sador of Afghanistan to the United States, jurisdiction under rule XXV of such Rules, related to the compensation of employees of Washington, DC. the committee from March 1, 2003, through including holding hearings, reporting such The PRESIDING OFFICER. Without hearings, and making investigations as au- September 30, 2003; October 1, 2003 through thorized by paragraphs 1 and 8 of rule XXVI September 30, 2004; and October 1, 2004, objection, it is so ordered. of the Standing Rules of the Senate, the through February 28, 2005, to be paid from COMMITTEE ON HEALTH, EDUCATION, LABOR, Committee on the Budget is authorized from the Appropriations account for ‘‘Expenses of AND PENSIONS March 1, 2003, through September 30, 2003; Inquiries and Investigations.’’. Mr. KYL. Mr. President, I ask unani- October 1, 2003, through September 30, 2004; f mous consent that the Committee on and October 1, 2004, through February 28, AUTHORITY FOR COMMITTEES TO Health, Education, Labor, and Pen- 2005, in its discretion (1) to make expendi- sions be authorized to meet in Execu- tures from the contingent fund of the Sen- MEET tive Session during the session of the ate, (2) to employ personnel, and (3) with the COMMITTEE ON ARMED SERVICES prior consent of the Government department Senate on Wednesday, February 12, Mr. KYL. Mr. President, I ask unani- 2003. or agency concerned and the Committee on mous consent that the Committee on Rules and Administration, to use on a reim- The following agenda will be consid- bursable or nonreimbursable basis the serv- Armed Services be authorized to meet ered: during the session of the Senate on ices of personnel of any such department or AGENDA agency. Wednesday, February 12, 2003, at 9:30 Adopting sub-committee memberships SEC. 2. (a) The expenses of the committee a.m., in open and closed session to re- for the period March 1, 2003, through Sep- ceive testimony on current and future Adopting committee rules tember 30, 2003, under this resolution shall S.ll, Keeping Children and Families Safe worldwide threats to the National Se- Act of 2003 (CAPTA reauthorization) not exceed $3,136,108, of which amount (1) not curity of the United States. to exceed $40,000 may be expended for the S.ll, NIH Foundation The PRESIDING OFFICER. Without S. 239, Trauma Care procurement of the services of individual objection, it is so ordered. S. , Birth Defects consultants, or organizations thereof (as au- ll S. , Animal Drug User Fee Act thorized by section 202(i) of the Legislative COMMITTEE ON COMMERCE, SCIENCE, AND ll Reorganization Act of 1946), and (2) not to TRANSPORTATION The PRESIDING OFFICER. Without exceed $4,000 may be expended for the train- Mr. KYL. Mr. President, I ask unani- objection, it is so ordered. ing of the professional staff of such com- mous consent that the Committee on COMMITTEE ON INDIAN AFFAIRS mittee (under procedures specified by section Commerce, Science, and transportation Mr. KYL. Mr. President, I ask unani- 202(j) of the Legislative Reorganization Act and the House Subcommittee on mous consent that the Committee on of 1946). Science and Space be authorized to Indian Affairs be authorized to meet on (b) For the period October 1, 2003, through meet on Wednesday, February 12, 2003, September 30, 2004, expenses of the com- Wednesday, February 12, 2003, at 10:30 at 9:30 a.m. on the Challenger Space mittee under this resolution shall not exceed a.m. in Room 485 of the Russell Senate Shuttle in Russell SR–325. $5,522,410, of which amount (1) not to exceed Office Building to conduct a CON- The PRESIDING OFFICER. Without $40,000 may be expended for the procurement FIRMATION HEARING on the Presi- objection, it is so ordered. of the services of individual consultants, or dent’s nomination of Mr. Ross O. organizations thereof (as authorized by sec- COMMITTEE ON ENVIRONMENT AND PUBLIC Swimmer to be Special Trustee for tion 202(i) of the Legislative Reorganization WORKS Act of 1946), and (2) not to exceed $4,000 may Mr. KYL. Mr. President, I ask unani- American Indians at the U.S. Depart- be expended for the training of the profes- mous consent that the Committee on ment of the Interior. sional staff of such committee (under proce- Environment and Public Works be au- The PRESIDING OFFICER. Without dures specified by section 202(j) of the Legis- thorized to meet on Wednesday, Feb- objection, it is so ordered. lative Reorganization Act of 1946). COMMITTEE ON THE JUDICIARY (c) For the period October 1, 2004, through ruary 12, 2003 at 9:30 a.m. to conduct a February 28, 2005, expenses of the committee business meeting regarding S. 195, Un- Mr. KYL. Mr. President, I ask unani- under this resolution shall not exceed derground Storage Tank Compliance mous consent that the Committee on $2,355,010, of which amount (1) not to exceed Act of 2003; Several Committee Resolu- the Judiciary be authorized to meet to $40,000 may be expended for the procurement tions on GSA Prospectuses; and Com- conduct a Judicial Nominations hear- of the services of individual consultants, or mittee Funding Resolution. ing on Wednesday, February 12, 2003 in organizations thereof (as authorized by sec- The meeting will be held in SD 406. Dirksen Room 226 at 9:30 a.m. tion 202(i) of the Legislative Reorganization The PRESIDING OFFICER. Without TENTATIVE AGENDA Act of 1946), and (2) not to exceed $4,000 may be expended for the training of the profes- objection, it is so ordered. PANEL I sional staff of such committee (under proce- COMMITTEE ON FINANCE The Honorable Richard C. Shelby United dures specified by section 202(j) of the Legis- Mr. KYL. Mr. President, I ask unani- States Senator (R–AL); The Honorable Jeff lative Reorganization Act of 1946). mous consent that the Committee on Sessions United States Senator (R–AL); The

VerDate Jan 31 2003 01:23 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.120 S12PT2 S2370 CONGRESSIONAL RECORD — SENATE February 12, 2003 Honorable Ben Nighthorse Campbell United the Southern District of Alabama; Thomas the Coast Guard transition to Homeland Se- States Senator (R–CO); The Honorable A. Varlan to be U.S. District Judge for the curity. Wayne Allard United States Senator (R–CO); Eastern District of Tennessee; Timothy C. THE PRESIDING OFFICER. Without The Honorable George F. Allen United Stanceu to be a Judge of the U.S. Court of objection, it is so ordered. States Senator (R–VA); The Honorable International Trade; and Marian Blank Horn Lamar Alexander United States Senator (R– to be a Judge of the U.S. Court of Federal f TN); and The Honorable Chris Cannon United Claims. States Representative (R–UT). The PRESIDING OFFICER. Without PRIVILEGE OF THE FLOOR PANEL II objection, it is so ordered. Mrs. CLINTON. I ask unanimous con- Timothy M. Tymkovich to be United Cir- SUBCOMMITTEE ON OCEANS, ATMOSPHERE, AND cuit Judge for the Tenth Circuit FISHERIES sent that Robyn Rimmer, a legal fellow PANEL III Mr. President, I ask unanimous consent in my office, be granted the privilege of J. Daniel Breen to be U.S. District Judge that the Subcommittee on Oceans, Atmos- the floor for this debate. for the Western District of Tennessee; Wil- phere, and Fisheries be authorized to meet The PRESIDING OFFICER. Without liam H. Steele to be U.S. District Judge for on Thursday, February 12, 2003, at 2:30 pm on objection, it is so ordered.

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