E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 109 CONGRESS, SECOND SESSION

Vol. 152 WASHINGTON, WEDNESDAY, JANUARY 25, 2006 No. 5 House of Representatives The House was not in session today. Its next meeting will be held on Tuesday, January 31, 2006, at noon. Senate WEDNESDAY, JANUARY 25, 2006

The Senate met at 9:30 a.m. and was RESERVATION OF LEADER TIME accommodate Senators who wish to called to order by the President pro make statements. As I mentioned, The PRESIDENT pro tempore. Under tempore (Mr. STEVENS). every Senator will have the oppor- the previous order, the leadership time tunity to speak, but it is my hope we is reserved. PRAYER will be able to lock in a time certain f The Chaplain, Dr. Barry C. Black, of- for a vote on this qualified nominee as fered the following prayer: MORNING BUSINESS soon as possible in order that our fel- Let us pray. The PRESIDENT pro tempore. Under low Senators will know when that con- Almighty and merciful God, who has the previous order, there will be a pe- firmation vote will occur. I would like given us grace in times past and hope riod for the transaction of morning to be able to do that shortly. I have for the years to come, strengthen us to business with Senators permitted to been in discussion with the Democratic continue to grow in grace and in our speak therein for up to 10 minutes leader, and we will continue that dis- knowledge of You. Quicken our hearts each. cussion on that particular matter. f with warmer affection for You and f Your creation. Stir up the talents in RECOGNITION OF THE MAJORITY EXECUTIVE SESSION each of us and give us a desire to serve LEADER You and humanity. Bless the Members of this body and The PRESIDENT pro tempore. The NOMINATION OF SAMUEL A. the staffs that serve them. Increase majority leader is recognized. ALITO, JR., TO BE AN ASSO- their faith as You increase their years. f CIATE JUSTICE OF THE SU- PREME COURT OF THE UNITED Give them the moral fitness to live SCHEDULE lives of integrity and faithfulness. May STATES Mr. FRIST. President, I welcome ev- they not falter under the burdens they Mr. FRIST. Mr. President, at this eryone back to begin this second ses- are asked to carry in these uncertain point, I ask unanimous consent that sion of the 109th Congress. the Senate proceed to executive session days. Bless them with clear minds and In a few moments we will begin an- for the consideration of Calendar No. open eyes that they will not seek to other historic debate in the Senate 490, the nomination of Samuel Alito to solve tomorrow’s problems with yester- Chamber as we consider the nomina- be an Associate Justice of the Supreme day’s solutions. tion of Samuel Alito to be Associate We thank You for our new Senate Court of the United States. Justice of the Supreme Court of the The PRESIDENT pro tempore. Is page class. Inspire our pages to trust United States. You passionately so that You will di- there an objection? We will lock in a debate structure in Without objection, it is so ordered. rect their steps. We pray in Your Holy a few moments so we will be able to al- Name. Amen. The Senate will proceed to executive ternate hours back and forth between session, and the clerk will report. f the two sides of the aisle. This will The legislative clerk read the nomi- help facilitate the schedule so Members nation of Samuel A. Alito, Jr., of New PLEDGE OF ALLEGIANCE will have a better understanding of Jersey, to be an Associate Justice of The PRESIDENT pro tempore led the when they will have the opportunity to the Supreme Court of the United Pledge of Allegiance, as follows: come to the floor to give their state- States. I pledge allegiance to the Flag of the ments and to participate in that de- Mr. MCCAIN. Mr. President, will the United States of America, and to the Repub- bate. majority leader yield to me for 1 lic for which it stands, one nation under God, We will remain in session all day minute while I bring up an issue that indivisible, with liberty and justice for all. today and into the night this week to we were discussing yesterday?

∑ 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 Aug 31 2005 02:17 Dec 28, 2006 Jkt 059060 PO 00000 Frm 00001 Fmt 4637 Sfmt 0634 E:\RECORDCX\T37X$J0E\S25JA6.REC S25JA6 kstiles on PROD1PC69 with CONG-REC-ONLINE S36 CONGRESSIONAL RECORD — SENATE January 25, 2006 Mr. FRIST Mr. President, I will be The PRESIDENT pro tempore. Is cial temperament. Despite enduring re- happy to yield. there an objection? lentless questioning of his credibility, The PRESIDENT pro tempore. The Without objection, it is so ordered. integrity, and personal and political Senator from Arizona. Mr. FRIST. Mr. President, today, I views, Judge Alito remained LOBBYING REFORM am honored to open debate on the nom- unflappable, never once raising his Mr. MCCAIN. Mr. President, I thank ination of Judge Sam Alito to be the voice or becoming confrontational, fo- the majority leader for his efforts to 110th Associate Justice of the Supreme cusing clearly and articulately on the move the issue of lobbying reform for- Court of the United States. facts, the law, and the constitutional ward. We had a good meeting yesterday I enthusiastically support his con- questions presented to him. He under- amongst other Members, and Senator firmation. stands the limited role of a judge—judi- LIEBERMAN and I and others also, as Judge Alito deserves to become Jus- cial restraint, impartiality, and a com- the majority leader knows, have intro- tice Alito. Those who oppose him are mitment to the rule of law. duced legislation. There has been input smearing a decent and honorable man In addition to all of his exceptional made by other Members, and I know and imposing an unfair political stand- qualifications, integrity, and tempera- the majority leader joins me in saying ard on all judicial nominees. ment, Judge Alito deserves confirma- we need to put together a bipartisan I support Judge Alito because he is tion because he understands the lim- coalition to address this issue as quick- exceptionally qualified to be a Su- ited role of a judge to interpret the law ly as possible. We need to sit down with preme Court Justice. I support Judge and not legislate from the bench. He Members of both sides of the aisle in Alito because he is a man of integrity practices judicial restraint and refuses whatever format the majority leader and modest judicial temperament. I to prejudge cases or apply a personal and the Democratic leader decide so we support Judge Alito because he has a political agenda on the bench. In his can get to work right away and get leg- record that demonstrates a respect for hearing before the Judiciary Com- islation done to curb the lobbying ex- judicial restraint, an aversion to polit- mittee, this philosophy was clear. He cesses that have been brought to light ical agendas on the bench, and a com- said: that need to be fixed. mitment to the rule of law and the At another time I would like to talk Constitution. A judge can’t have an agenda. A judge with the majority leader about the There is no question that Judge Alito can’t have any preferred outcome in any par- issue of earmarks, but I thank the ma- is exceptionally well qualified. He is ticular case. . . . The judge’s only obliga- jority leader for urging rapid action on measured, brilliant, deeply versed in tion—and it’s a solemn obligation—is to the rule of law, and what that means is that in this issue. We do have a basis for nego- and respectful of the law, and a man of tiation, and I hope we will be able to every single case, the judge has to do what character and integrity. But there is the law requires. immediately sit down with Members another reason I support Judge Alito. I from the other side of the aisle, come support Judge Alito because denying In his 15 years on the bench, Judge to conclusions and agreements—since him a seat on the Supreme Court could Alito has done exactly that. Just listen it is pretty obvious the majority of the have devastating long-term con- to the words of one of Judge Alito’s fixes that need to be made—and move sequences for our judicial nomination former law clerks, a registered Demo- forward. I thank the majority leader process. Let me address these issues crat who, by the way, still has a and the Democratic leader for urging one at a time. ‘‘Kerry for President’’ bumper sticker rapid action in addressing this issue Exceptional qualifications: From the on his car. His words: which is causing us, our image and our moment President Bush nominated Until I read [Judge Alito’s] 1985 Reagan job reputation to be hurt very badly in the him last October, Judge Alito’s excep- application, I could not tell you what his eyes of the American people. tional qualifications had a ‘‘wow’’ fac- politics were . . . When we worked on cases, I thank the majority leader. we reached the same result about 95 percent Mr. FRIST. Mr. President, just a tor that impressed Senators of both parties. In every respect, Judge Alito is of the time . . . It was my experience that very short comment. I have been in dis- Judge Alito was (and is) capable of setting cussion with the Democratic leader on a nominee who meets the highest aside any personal biases he may have when this issue as well. As our distinguished standards of excellence. he judges. He is the consummate profes- colleague from Arizona has just said, He is a graduate of Princeton and sional. Yale Law School. He has dedicated his we on the Republican side have put to- Long-term consequences for the judi- gether a working group in terms of how 30-year legal career to public service as a Federal prosecutor and assistant to cial nominations process: Perhaps the to address this very important issue. It most important reason to support has to be done in a bipartisan way. the Solicitor General, where he argued 12 cases before the Supreme Court, and Judge Alito has less to do with Judge America is looking at this body to re- Alito himself and more to do with our spond to abuses that we have all seen for the last 15 years as a Federal judge on the Third Circuit in New Jersey. He judicial nominations process. Regard- in our Government today. I think we less of their political views, Senators all need to be committed to address has been unanimously confirmed by this body not once but twice. On the should treat judicial nominees with this in a bipartisan way. dignity, respect, and fairness, not just We have a great structure to build Federal bench, he has participated in because it is the right thing to do but upon in the legislation that has been more than 3,500 cases and has written because a process that politicizes and introduced in a bipartisan way with more than 300 opinions. The American degrades judicial nominees will drive Senators MCCAIN and LIEBERMAN. I Bar Association gave Judge Alito its our very best and our brightest away look forward to working with both highest rating, unanimously ‘‘well from the bench. I am profoundly dis- sides of the aisle in developing an ap- qualified.’’ He is a man of integrity and appointed in the unfair and unseemly propriate response over the coming modest judicial temperament. treatment of Judge Alito during this days. Exceptional qualifications only begin Mr. President, I now ask unanimous to reveal why Sam Alito should be con- process. His judicial record has been consent that the time from 10 a.m. firmed to the Supreme Court. Through- distorted and mischaracterized. He has until 8 p.m. tonight be divided, with out his career as a prosecutor and a been labeled as nonresponsive during the time from 10 to 11 under the con- judge, Sam Alito earned a reputation his hearings, despite providing candid trol of the majority leader or his des- as a man of integrity who was fair- and articulate answers to more than ignee, the time from 11 to noon under minded and evenhanded. He earned the 650 questions and over 18 hours of testi- the control of the Democratic leader or trust and respect of his colleagues, Re- mony—far more than many, perhaps his designee, with each hour rotating publicans, Democrats, and Independ- any Supreme Court nominee in the back and forth in that same manner. I ents. That is one reason seven Federal past—and most sadly, he has been the further ask unanimous consent that on judges endorsed his nomination and victim of a calculated but unsuccessful Thursday this same division occur, testified on his behalf. campaign to smear his character, his with the first hour from 10 to 11 under Through the Judiciary Committee integrity, and his credibility. the control of the Democratic leader or hearings, we saw a clear picture In an editorial in support of Judge his designee. emerge of Judge Alito’s modest judi- Alito, published on January 15, the

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00002 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S37 Washington Post expressed this con- rise to concerns that he will prove too toler- scheduling items for the Judiciary cern, even though they would have cho- ant of claims of executive power in the war Committee. sen a different nominee than Judge on terror. He has tended at times to read As we all know, the PATRIOT Act Alito: civil rights statutes and precedents too nar- was extended from December 31 until rowly. He has shown excessive tolerance for He would not have been our pick for the aggressive police and prosecutorial tactics. February 3. I circulated a letter today high court. Yet Judge Alito should be con- There is reason to worry that he would cur- among our colleagues, and I ask unani- firmed, both because of his positive qualities tail abortion rights. And his approach to the mous consent that it be printed in the as an appellate judge and because of the dan- balance of power between the federal govern- RECORD at the conclusion of my re- gerous precedent his rejection would set . . . ment and the states, while murky, seems un- marks. Supreme Court confirmations have never promising. Judge Alito’s record is com- The PRESIDING OFFICER. Without been free of politics, but neither has their plicated, and one can therefore argue against objection, it is so ordered. history generally been one of party-line imputing to him any of these tendencies. Yet votes or of ideology as the determinative (See exhibit 1.) he is undeniably a conservative whose pres- Mr. SPECTER. It outlines the alter- factor. To go down that road is to believe ence on the Supreme Court is likely to that there exists a Democratic law and a Re- produce more conservative results than we natives which we face at the present publican law—which is repugnant to the would like to see. time. One is to let the act expire on ideal of the rule of law. However one reason- Which is, of course, just what President February 3, which I think no one would ably defines ‘‘mainstream’’ of contemporary Bush promised concerning his judicial ap- like. Second would be to extend the jurisprudence, Judge Alito’s work lies within pointments. A Supreme Court nomination current bill for a period of time. We it. While we harbor some anxiety about the isn’t a forum to refight a presidential elec- will be discussing a 4-year extension. direction he may push the court, we would tion. The president’s choice is due def- be more alarmed at the long-term implica- Or, third, to have cloture imposed on erence—the same deference that Democratic the filibuster which is in effect and tions of denying him a seat. No President senators would expect a Republican Senate should be denied the prerogative of putting a to accord the well-qualified nominee of a then vote to utilize the conference re- person as qualified as Judge Alito on the Su- Democratic president. port and pass the act. It is always pos- preme Court. And Judge Alito is superbly qualified. His sible to take another course of action if I ask unanimous consent that the record on the bench is that of a thoughtful there is unanimous consent. full text of the Washington Post edi- conservative, not a raging ideologue. He pays The conference is technically dis- torial of January 15 entitled ‘‘Confirm careful attention to the record and doesn’t charged at this point, and the House of Samuel Alito on the Supreme Court’’ reach for the political outcomes he desires. Representatives has made it emphati- His colleagues of all stripes speak highly of cally clear that they have gone as far be printed in the RECORD at the conclu- him. His integrity, notwithstanding efforts sion of my remarks. to smear him, remains unimpeached. as they think it reasonable to go on The PRESIDENT pro tempore. With- Humility is called for when predicting how the compromises. out objection, it is so ordered. a Supreme Court nominee will vote on key There have been very substantial (See exhibit 1.) issues, or even what those issues will be, compromises worked out. At one junc- Mr. FRIST. Thirteen years ago, a Re- given how people and issues evolve. But it’s ture, there were three additional re- publican minority in the Senate voted fair to guess that Judge Alito will favor a ju- quests which we took to the House and to confirm the qualified nominee of a diciary that exercises restraint and does not got all of them, the most important of Democratic President by an over- substitute its judgment for that of the polit- which was the sunset provision whelming vote of 96 to 3. Despite a ical branches in areas of their competence. That’s not all bad. The Supreme Court sports changed from 7 years to 4 years. Then well-documented liberal record, Justice a great range of ideological diversity but less additional changes were requested, and Ruth Bader Ginsburg sits on the Su- disagreement about the scope of proper judi- they could not be accommodated. preme Court today because Republican cial power. The institutional self-discipline That is where we stand at the present Senators chose to focus on her quali- and modesty that both Judge Alito and Chief time. I know there are discussions un- fications and not to obstruct her nomi- Justice Roberts profess could do the court derway to try to get some additional nation based merely on her judicial good if taken seriously and applied apoliti- changes made. My own view is those philosophy or ideology. I urge my col- cally. prospects are somewhere between bleak Supreme Court confirmations have never leagues to vote to confirm Judge Alito been free of politics, but neither has their and nonexistent. by applying that same fair standard. history generally been one of party-line Mr. LEAHY. Mr. President, will the As we debate this week, I hope we can votes or of ideology as the determinative Senator yield on that point for a mo- put aside partisan rhetoric and the pol- factor. To go down that road is to believe ment? itics of personal destruction and stand that there exists a Democratic law and a Re- Mr. SPECTER. Certainly. on principle. Qualified judicial nomi- publican law—which is repugnant to the Mr. LEAHY. Mr. President, the dis- nees such as Judge Alito deserve re- ideal to the rule of law. However one reason- tinguished senior Senator from Penn- spectful debate and a fair up-or-down ably defines the ‘‘mainstream’’ of contem- sylvania has worked as hard on this porary jurisprudence, Judge Alito’s work lies issue as anybody here. As the distin- vote on the Senate floor. As Senators, within it. While we harbor some anxiety it is our fundamental constitutional about the direction he may push the court, guished Presiding Officer knows, the duty and responsibility. we would be more alarmed at the long-term original PATRIOT Act was written by EXHIBIT 1 implications of denying him a seat. No presi- myself, the distinguished Senator from [From the Washington Post, Jan. 15, 2006] dent should be denied the prerogative of put- Pennsylvania, and others. It was the CONFIRM SAMUEL ALITO ting a person as qualified as Judge Alito on distinguished Republican leader from the Supreme Court. The Senate’s decision concerning the con- Texas, Dick Armey, and I who put in firmation of Samuel A. Alito Jr. is harder Mr. FRIST. I suggest the absence of a the sunset provisions so we would be than the case last year of now-Chief Justice quorum. forced to come back and look at dif- John G. Roberts Jr. Judge Alito’s record The PRESIDENT pro tempore. The ferent parts of it. Much of the PA- raises concerns across a range of areas. His clerk will call the roll. TRIOT Act is permanent law, but we replacement of Justice Sandra Day O’Connor The legislative clerk proceeded to should look at certain parts. Those are could alter—for the worse, from our point of call the roll. the parts that are now most in conten- view—the Supreme Court’s delicate balance Mr. SPECTER. Mr. President, I ask tion because they will expire. in important areas of constitutional law. He unanimous consent that the order for would not have been our pick for the high The distinguished Senator from court. Yet Judge Alito should be confirmed, the quorum call be rescinded. Pennsylvania and I were at the White both because of his positive qualities as an The PRESIDING OFFICER (Mr. COR- House on another matter recently and appellate judge and because of the dangerous NYN). Without objection, it is so or- talked briefly about this with the precedent his rejection would set. dered. President. I know the distinguished Though some attacks on him by Demo- JUDICIARY COMMMITTEE AGENDA Senator from New Hampshire, Mr. cratic senators and liberal interest groups Mr. SPECTER. Mr. President, before SUNUNU, has been working very hard have misrepresented his jurisprudence, Judge Alito’s record is troubling in areas. proceeding to the nomination of Judge with us. I think the changes that still His generally laudable tendency to defer to Alito to the Supreme Court of the need to be made are relatively minor. I elected representatives at the state and fed- United States, I think it worthwhile to urge parties, especially all of us who eral levels sometimes goes too far—giving comment very briefly on some of the helped write the original PATRIOT

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00003 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S38 CONGRESSIONAL RECORD — SENATE January 25, 2006 Act, to make that one last effort. That they be provided to the managers in possible so we can consider them, try would include, of course, the White advance so we can organize proceeding to work out time agreements, and try House and the other body to do it. on the bill and seek time agreements. to move the bill ahead in a managers’ The chairman of the Judiciary Com- That has been a very difficult and con- context. mittee has worked extraordinarily tentious issue, but it was passed out of I am glad to yield to Senator LEAHY. hard on this legislation. I, like so many the committee last year after numer- Mr. LEAHY. Mr. President, again I others, am willing to continue to work ous executive sessions marking up the agree with what the distinguished Sen- with him. I think with a little nudge bill and extended debate on a variety of ator from Pennsylvania has said. This from the White House—that nudge may amendments. Many were accepted, is a bipartisan bill. In fact, to empha- have to be a quiet one among the prin- some were rejected. size it, he and I have sent a letter to all cipals in both bodies—that can be done. The Supreme Court of the United of our colleagues, signed jointly, ask- I commend the Senator from New States has called upon Congress to ad- ing them, if they have amendments Hampshire for the work he is doing on dress this issue. It does not lend itself which they plan to offer, to let us this issue. to a solution in the courts on class ac- know. I thank the chairman of the Judici- tions. There are thousands of people It should be emphasized that not ary Committee for yielding, even who are suffering from the injuries of only did we have hours upon hours of though it is on his time. asbestos—mesothelioma, which is hearings, but we had many open meet- Mr. SPECTER. Mr. President, I deadly, and asbestosis, and others— ings in the office of the Senator from thank the Senator from Vermont for who cannot recover because their em- Pennsylvania, in my office, and the of- his comments. I thank him for the hard ployers are bankrupt. Over 75 compa- fices of others. We made sure that the work he has done in the past year on nies have gone bankrupt, and more are stakeholders, all the stakeholders were the Judiciary Committee on many threatened with bankruptcy. able to come to those meetings. We matters, including the PATRIOT Act. I The bill which we have reported to also made sure that the office of every think we have set a tone and have been the floor is the product of enormous ef- Senator—everybody who expressed any able to agree on almost all matters. If fort and enormous analysis by the Ju- interest, Republican or Democrat—was there can be some modifications made, diciary Committee and beyond. It was invited to those meetings. They were agreeable on all sides, before February voted out of committee 13 to 5. Senator wide open. In fact, almost all of the 3, I would be more than willing to be a LEAHY and I have convened meetings, Senators on both sides of the aisle ei- party to that. along with the assistance of Judge ther attended those meetings or had My preference is the bill which Becker, a senior Federal judge—he had staff attend those meetings. passed the Senate, but we have a bi- been Chief Judge of the Court of Ap- At these meetings that we had, cameral system, and the House has its peals for the Third Circuit—where we again, every single stakeholder was in- own point of view, and I think they have brought in the so-called stake- volved. It was open. It was bipartisan. have been reasonable. We have a good holders: the insurers, the trial lawyers, That was made clear by the Senator bill, certainly a bill in the conference the AFL/CIO, and the manufacturers. from Pennsylvania from the beginning, report which is vastly improved with They worked through that bill which that they would have to be open and bi- respect to civil rights over the current has festered in the Congress for more partisan. He, as would be expected, bill. But I am not in favor of having than two decades. I first saw it when kept his commitment all the way short-term extensions. If we have an- Gary Hart, then-Senator from Colo- through. other short-term extension, it will rado, brought in Johns Manville, which I would highlight two things the Sen- beget another short-term extension. I was a key constituent of his, which was ator from Pennsylvania just said that want to fish or cut bait before Feb- having a problem. I believe it is clear were of concern to me. One, if we do ruary 3 on that issue. that if we are not able to act now, it not do it now, we lose the opportunity. The Judiciary Committee, on the sec- will be decades before this kind of an I believe it will be decades before any- ond item, is scheduled to hold a hear- effort can be mustered again. body would put together the kind of co- ing on the wartime Executive power I have one additional comment on alition that it has been possible to put and NSA’s surveillance authority on the scope of the work. After it was together. The other thing he said was February 6. I think my colleagues will passed out of committee in late July of that it is not just some of the powerful be interested in a letter which I have 2003, I asked Judge Becker to assist as financial stakes involved, but it is a written to the Attorney General dated a mediator. We had meetings in his powerful amount of suffering that is January 24, yesterday, outlining a se- chambers in Philadelphia—two full going on by the people who are suf- ries of some 15 questions to be ad- days in August. We have had about 50 fering from asbestos poisoning in all dressed in advance of the hearing or at meetings since, attended by sometimes the different forms. They are the ones the time of the Attorney General’s more than 40 or 50 people. who are held in limbo throughout all opening statement—at least that re- We are still open for business to con- this time. We can bring some relief to quest—to try to set the parameters and sider modifications. We know the legis- them now; not the possibility of relief issues of that hearing. I ask unanimous lative process is one where, when it 10 years from now after a series of law- consent that the letter to Attorney comes to the floor, there are amend- suits go through, but now. General Gonzalez be printed in the ments. There are more ideas. But this We have had members of the Su- RECORD at the conclusion of my state- is an issue which is of tremendous ur- preme Court, ranging from the late ment today. gency. The President has spoken about Chief Justice William Rehnquist to The PRESIDING OFFICER. Without it. The President wants it enacted. The Justice Ruth Bader Ginsburg—cer- objection, it is so ordered. majority leader is firmly behind legis- tainly two differing philosophies—who (See exhibit 2.) lation by the Senate. The Speaker of have called upon the Congress to bring Mr. SPECTER. A third item of Judi- the House of Representatives has spo- about a legislative solution because ciary Committee scheduling involves ken about it. But candidly and openly, our courts are unable to handle all the the asbestos reform bill. The leader has we face very powerful interests who are cases that might come up. Let’s be stated his intention to bring it up on opposed to any action. clear about that. There are some who February 6. As we customarily do, we There are very substantial dollars in- say we are litigating forever on this, meet in the afternoon. I intend to ab- volved. There is very substantial pain but the fact is our courts are unable to sent myself from the Judiciary Com- and suffering involved. Those of us who handle it. It cries out for a legislative mittee hearing on NSA to come make have worked on the bill—led by the dis- solution. an opening statement. Then we will tinguished Senator from Vermont and I urge people to come to this with an proceed on that bill. myself and others—have gone to the open mind, vote it up or down, vote the Senator LEAHY and I sent a letter well and gone to the wall. We still are amendments up or down. I have heard yesterday to our colleagues asking open for business and invite comments. some opponents quoted as being pre- that, if there are amendments to be of- But anybody who has amendments, we pared to demagog this bipartisan bill. fered, and I am sure there will be, that would like to hear from you as early as This bill did not just suddenly spring

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Conference report (2006) Current law (PATRIOT Act 2001)

Requests for Business Records (‘‘Library Provision’’) Section 215 Application to the FISA Court for an order under Section 215 requires a statement of facts ...... No requirement of any factual showing. Records can be obtained only if the FISA Judge finds that the statement of facts shows ‘‘reasonable grounds to be- Records can be obtained if the FBI merely ‘‘specif[ies] that . . . they are sought for an authorized investigation.’’ lieve that the tangible things sought are relevant to an authorized investigation’’. May not be used for threat assessments ...... May be used for threat assessments. Encourages the FBI to demonstrate a connection to terrorism or espionage by providing a presumption of relevance if No analogous incentive for the FBI to demonstrate a connection to terrorism or espionage. the records sought pertain to: (a) a foreign power or an agent of a foreign power; (b) the activities of a suspected agent of a foreign power who is the subject of the investigation; or (c) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of the investigation. Requires the use of minimization procedures that will limit ‘‘the retention, and prohibit the dissemination’’ of informa- No requirement that minimization procedures be used. tion concerning U.S. persons. Explicit right of recipients of Section 215 requests to consult legal counsel ...... No explicit right of recipients of Section 215 requests to consult legal counsel. Explicit right of recipients of Section 215 requests to challenge their legality in court ...... No explicit right of recipients of Section 215 requests to challenge their legality in court. Requirement that the FBI Director, Deputy Directer, or Executive Assistant Director personally approve requests for cer- No special requirements for sensitive documents such as library records. tain sensitive documents, including library records, medical records, educational records, and gun records. Limits the scope of Section 215 requests to materials that could be obtained via grand jury subpoena or a similar No specified limitation on the scope of Section 215 requests. court order for the production of records. Adds the Senate Judiciary Committee as a recipient of the ‘‘fully inform[ed]’’ reports ...... ‘‘Fully inform[ed]’’ reports given only to House and Senate Intelligence Committees. Reporting to Congress on the number of orders granted, modified, or denied for the production of certain records from No reporting to Congress on Section 215 requests for sensitive documents. libraries and bookstores, firearms sales records, tax return records, educational records, and certain medical records. Public reporting on the total number of applications under Section 215 and the total number of such orders granted, No public reporting. modified, or denied. Two comprehensive audits by the Justice Department’s Inspector General regarding the use, including any improper or No requirement that the Justice Department’s Inspector General audit the use of Section 215. illegal use, of Section 215. The first report will examine the use of Section 215 in 2002–04; the second report will examine the use of Section 215 in 2005–06. The reports will examine ‘‘each instance’’ in which the government submitted an application under Section 215, and the Conference Report provides detailed specifications of what the investigation should cover. Four-year sunset. Delayed-Notice Searches (‘‘Sneak and Peek’’ Searches) Section 213 Notice to the target of the search must be given ‘‘within a reasonable period not to exceed 30 days after the date of Notice to the target of the search may be given within a ‘‘reasonable’’ time; no limitation on the maximum period its execution,’’ or on a later date certain if the facts justify it. of delay. Extensions on the period of delay only upon ‘‘an updated showing of the need for further delay’’ ...... Extensions on the period of delay may be granted upon mere ‘‘good cause shown’’. Extensions are limited to 90 days or less, unless the facts of the case justify a longer period ...... No maximum period of extension. Notice may not be delayed if the only reason for doing so is that the court finds reasonable cause to believe that im- Notice may be delayed if the court finds reasonable cause to believe that immediate notification may result in un- mediate notification may result in unduly delaying a trial. duly delaying a trial. Public reporting on the number of applications for delayed-notice warrants and extensions; and the number of such No reporting to Congress or the public. warrants and extensions granted or denied; the duration of delays in giving notice. Roving Wiretaps Section 206 Application requires ‘‘the identity, if known, or a description of the specific target’’ of the surveillance ...... Application requires ‘‘the identity, if known, or a description of the target’’ of the surveillance. FISA Court’s orders must specify ‘‘the identity, if known, of the specific target’’ of the surveillance ...... FISA Court’s orders must specify ‘‘the identity; if known, or a description of the target’’ of the surveillance. For so-called John Doe roving wiretaps, requires the FISA Court to ‘‘find[], based upon specific facts provided in the For so-called John Doe roving wiretaps, requires the FISA Court to ‘‘find that the actions of the target of the appli- application, that the actions of the target of the application may have the effect of thwarting the identification of cation may have the effect of thwarting the identification of a specified person’’. a specified person’’. Requires that within ten days of beginning of surveillance at any new facility or place, the FBI notify the FISA Court of No requirement that FBI notify the FISA Court when surveillance begins at any new facility or place. ‘‘facts and circumstances’’ justifying FBI’s belief that each new phone is being used or is about to be used by the target. Requires ‘‘fully inform[ed]’’ reporting to Senate Judiciary Committee ...... No requirement to report to Senate Judiciary Committee. Existing reports expanded to include the total number of applications for orders and extensions of orders approving Attorney General to inform the Congress twice per year of all roving wiretaps under 206. electronic surveillance where the nature and location of the facility at which the surveillance will be directed is un- known. Four-year sunset. National Security Letters (‘‘NSLs’’) Explicit right of recipients to consult legal counsel ...... No explicit right of recipients to consult legal counsel. Explicit right of recipients to challenge NSL in court and have it set aside if the court finds that compliance would be No explicit right of recipients to challenge NSL in court. ‘‘unreasonable, oppressive, or otherwise unlawful’’. Detailed mechanism for recipients to challenge the nondisclosure requirement in court; provision for subsequent chal- No explicit right of recipient to challenge the nondisclosure requirement in court. lenges in the event that initial challenges are unsuccessful. Two comprehensive audits by the Justice Department’s Inspector General regarding the use, including any improper or No requirement that the Justice Department’s Inspector General audit the use of NSLs. illegal use, of NSLs. The first report will examine the use of NSLs in 2003–04; the second report will examine the use of NSLs in 2005–06. The Conference Report provides detailed specifications of what the investigation should cover. Report to Congress by the Attorney General and the Director of National Intelligence regarding the feasibility of apply- No requirements with respect to the use of minimization procedures in the context of NSLs. ing minimization procedures in the context of NSLs. Annual public reporting on the total number of each type of NSL ...... No public reporting. Additional Protections Reporting to Congress on the total number of emergency employments of electronic surveillance and the total number No such reporting. of subsequent orders approving or denying such electronic surveillance.

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Conference report (2006) Current law (PATRIOT Act 2001)

Adds the Senate Judiciary Committee as a recipient of these reports ...... Reporting to the House and Senate Intelligence Committees of all physical searches conducted pursuant to FISA. Reporting to Congress on the total number of emergency physical searches authorized by the Attorney General and the No such reporting. total number of subsequent orders approving or denying such physical searches. Reporting to Congress on the total number of emergency pen registers and trap and trace devices authorized by the No such reporting. Attorney General and the total number of subsequent orders approving or denying the installation and use of the same. Disclosure of the rules of the FISA Court to the Senate and House Committees on Intelligence and the Judiciary ...... No provision requiring disclosure of the rules of the FISA Court to Congress. Reporting to the House and Senate Judiciary Committees on good-faith emergency disclosures under Section 212 of No such reporting. the PATRIOT Act. Report to Congress on the Justice Department’s use of data mining ...... No specific provisions concerning data mining.

EXHIBIT 2 Act? At a minimum, shouldn’t the Executive Mr. SPECTER. Mr. President, I U.S. SENATE, have sought authorization from the FISA thank my distinguished colleague for COMMITTEE ON THE JUDICIARY, Court for law enforcement individuals to lis- those comments. Washington, DC, January 24, 2006. ten to a reduced number of conversations There is no doubt about the suffering Hon. ALBERTO R. GONZALES, which were selected out from a large number of those who are afflicted with meso- Attorney General, U.S. Department of Justice, of conversations from the mechanical sur- veillance? thelioma and asbestosis and other ail- Washington, DC. ments. There is also no doubt about DEAR ATTORNEY GENERAL GONZALES: I (9) Was consideration given to the dichot- write to let you know some of the subjects omy between conversations by mechanical the tremendous impact it has on the which I would like you to address in your surveillance from conservations listened to economy of the United States. It has opening statement on the Judiciary Com- by law enforcement personnel with the con- been estimated that there could be a mittee hearing scheduled for February 6, tention that the former was non-invasive bigger boost than any kind of tax cuts 2006, on ‘‘Wartime Executive Power and the and only the latter was invasive? Would this you could have or any sort of economic NSA’s Surveillance Authority.’’ distinction have made it practical to obtain recovery program you could have to be (1) In interpreting whether Congress in- Court approval before the conservations were able to deal with the more than 75 com- tended to amend the Foreign Intelligence subject to human surveillance or after-the- panies that have gone into bankruptcy Surveillance Act (FISA) by the September fact approval within 72 hours. and others where bankruptcy is threat- 14, 2001 Resolution (Resolution), would it be (10) Would you consider seeking approval ened. relevant on the issue of Congressional intent from the FISA Court at this time for the on- The amount of work that the Senator that the Administration did not specifically going surveillance program at issue? from Vermont has specified has been ask for an expansion for Executive powers (11) How can the Executive justify disclo- under FISA? Was it because you thought you sure to only the so-called ‘‘Gang of Eight’’ gigantic. It has been 3 years in process. couldn’t get such an expansion as when you instead of the full intelligence committees Senator HATCH took the lead with the said: ‘‘That was not something that we could when Title V of the National Security Act of trust fund concept where the manufac- likely get?’’ 1947 provides: turers and the insurers have agreed to (2) If Congress had intended to amend FISA Sec. 501. [50 U.S.C. 413] (a)(1) The President put up some $140 billion into the trust by the Resolution, wouldn’t Congress have shall ensure that the congressional intel- fund with no government payments specifically acted to as Congress did in pass- ligence committees are kept fully and cur- and not coming out of the pockets of ing the Patriot Act giving the Executive ex- rently informed of the intelligence activities the taxpayers. panded powers and greater flexibility in of the United States, including any signifi- using ‘‘roving’’ wiretaps? The meetings which have been held cant anticipated intelligence activity as re- and the efforts and the momentum (3) In interpreting statutory construction quired by this title. (Emphasis added) which we have had can’t be recaptured. on whether Congress intended to amend (2)(e) Nothing in this Act shall be con- FISA by the Resolution, what is the impact strued as authority to withhold information I think it is fair to say, certainly dur- of the rule of statutory construction that re- from the congressional intelligence commit- ing my tenure here of 25 years, that I peals or changes by implication are tees on the grounds that providing the infor- have never seen legislation worked on disfavored? mation to the congressional intelligence to the extent this legislation has been, (4) In interpreting statutory construction committees would constitute the unauthor- with the complexity of the problem and on whether Congress intended to amend ized disclosure of classified information or FISA by the Resolution, what would be the the involvement of Senators and staff information relating to intelligence sources and so-called stakeholders. If it is not impact of the rule of statutory construction and methods. (Emphasis added) that specific statutory language, like that in now, it is never. (12) To the extent that it can be disclosed FISA, trumps or takes precedence over more Mr. SPECTER. Mr. President, I sup- in a public hearing (or to be provided in a general pronouncements like those of the port the nomination by President Bush closed executive session), what are the facts Resolution? upon which the Executive relies to assert Ar- of Circuit Court Judge Samuel A. (5) Why did the Executive not ask for the ticle II wartime authority over Congress’ Ar- Alito, Jr., to the Supreme Court of the authority to conduct electronic surveillance ticle I authority to establish public policy on United States because he is qualified. when Congress passed the Patriot Act and these issues especially where legislation is In coming to my conclusion, my staff was predisposed, to the maximum extent approved by the President as contrasted to and I have undertaken an extensive re- likely, to grant the Executive additional being enacted over a Presidential veto as was powers which the Executive thought nec- view of Judge Alito’s record and of his the case with the War Powers Act? essary? some 361 opinions in total. We have (6) Wasn’t President Carter’s signature on (13) What case law does the Executive rely categorized 238 of those as major deci- FISA in 1978, together with his signing state- upon in asserting Article II powers to con- sions while serving on the Third Cir- ment, an explicit renunciation of any claim duct the electronic surveillance at issue? cuit Court of Appeals. We have re- to inherent Executive authority under Arti- (14) What academic or export opinions does viewed 49 of the cases that Judge Alito cle II of the Constitution to conduct the Executive rely upon in asserting Article handled during his tenure as U.S. at- warrantless domestic surveillance when the II powers to conduct the electronic surveil- lance at issue? torney. We have made an analysis of 43 Act provided the exclusive procedures for speeches and articles Judge Alito au- such surveillance? (15) When foreign calls (whether between (7) Why didn’t the President seek a war- the caller and the recipient both being on thorized and evaluations of 38 formal rant from the Foreign Intelligence Surveil- foreign soil or one of the callers or recipients opinions, petitions, and Supreme Court lance Court authorizing in advance the elec- being on foreign soil and the other in the briefs which Judge Alito wrote while tronic surveillance in issue? (The FISA U.S.) were routed through switches which serving in the Department of Justice. Court has the experience and authority to were physically located on U.S. soil, would Additionally, the Judiciary Com- issue such a warrant. The FISA Court has a that constitute a violation of law or regula- mittee heard testimony of some 30 record establishing its reliability for non- tion restricting NSA from conducting sur- hours and 20 minutes where we had 17 disclosure or leaking contrasted with con- veillance inside the United States, absent a hours and 45 minutes of questioning of claim of unconstitutionality on encroaching cerns that disclosures to many members of Judge Alito and testimony from 33 out- Congress involved a high risk of disclosure or on Executive powers under Article II? leaking. The FISA Court is a least as reli- This letter will further confirm our staffs’ side witnesses. able, if not more so, that the Executive discussions that the Committee will require, It is on the basis of that voluminous Branch on avoiding disclosure or leaks.) at a minimum, the full day on February 6th record that it is my personal view that (8) Why did the Executive Branch not seek for your testimony. Judge Alito ought to be confirmed. after-the-fact authorization from the FISA Sincerely, He has a background from a father Court within the 72 hours as provided by the ARLEN SPECTER. who was an immigrant from Italy, not

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Judge Alito Assistant U.S. Attorney, then was U.S. evolving values and of evolving reli- said the obvious: Our method of rea- Attorney and worked in the Depart- ance. soning was as good as the Court’s. ment of Justice, and for 15 years has I questioned him at length about the Then in the decision on the Ameri- been on the Court of Appeals for the reliance factor in Casey v. Planned cans with Disabilities Act, where the Third Circuit. Parenthood. I think Judge Alito went Supreme Court has imposed a test of I think he answered questions put to as far as he could go on the assurances what is proportionate, taking it out of him more extensively than any other of maintaining an open mind on this thin air in a 1997 decision, what is nominee in recent times. important subject. ‘‘congruent and proportionate’’ is a I ask unanimous consent that the When it came to the issue as to test which cannot be applied with any full text of the prepared statement be whether he reviewed it and regarded it consistency. It lends itself to legisla- printed in the RECORD at the conclu- as settled law, his testimony was vir- tion from the bench. Justice Scalia sion of my remarks, which specifies the tually identical to the testimony of characterized it accurately, calling it details of the questions asked and pro- Chief Justice Roberts, who testified ‘‘a flabby test,’’ where the Court was vides analysis of many of his cases. that it was settled. As Chief Justice functioning as the taskmaster of Con- The PRESIDING OFFICER. Without Roberts put it in his confirmation gress to see that we had done our objection, it is so ordered. hearings, it is settled beyond that. homework. Judge Alito’s answers (See exhibit 1). Chief Justice Roberts left open the un- showed an appropriate respect for sepa- Mr. SPECTER. Mr. President, Judge questionable right and duty of the ration of powers and congressional au- Alito came under very extensive ques- Court to review all cases on the merits thority. tioning on the issue of a woman’s right when they are presented and to afford The decisions of the Supreme Court to choose because of his work on a brief appropriate weight to stare decisis and questioning the constitutionality of on the Thornburgh case where he advo- to precedents, but not to take the posi- statutes has led a number of Senators cated not reversal of Roe v. Wade but tion that precedents can never be over- on the committee to prepare legisla- cut back on some of the provisions, and turned. tion which would give the Congress because of a statement which he had I think a fair reading of the record is standing to go to the Supreme Court to made in 1985 when applying for a posi- that Judge Alito went about as far as argue to uphold our legislation. We tion with the Federal Government he could go without answering the thought initially about having a Judi- where he expressed the view that the question as to how he would rule on a ciary Committee observe what the Constitution did not protect the right specific case, which would be beyond Court had done and from that, thought to an abortion. Judge Alito testified at the purview of what a nominee ought about seeking to intervene as amicus length that he has an open mind on to do. curiae, as a friend of the court, and this subject. In taking up questions of Executive took it the final step: Why not go to I think it is fair to say that when a power, Judge Alito could not answer the Court and argue our cases our- comment is made by a lawyer in an ad- questions posed about the President’s selves, through counsel, which is an ap- vocacy capacity that it represents the authority to go to war with Iran. How propriate way. Congress has the au- view of a client on a position taken and could a nominee answer a question of thority to grant standing. We can not a personal view. With respect to that magnitude in a nomination pro- grant standing to ourselves to see to it the statement that he made about his ceeding without knowing a lot more that our views are appropriately pre- view of the Constitution in 1985, he has about the circumstances? And judges sented to the Court. since gone to great lengths to analyze make decisions after they have a case We respect the Court as the final ar- the Supreme Court’s decisions on the and controversy, when they have briefs biter of the Constitution. That is our issue of a woman’s right to choose and admitted, when they have arguments system. But the arguments and the has made assurances that he has an prepared, when they have discussions considerations and the record which open mind on the subject. with their colleagues, and they reflect Congress amasses ought to be consid- He was questioned extensively on on a matter and come to conclusion, ered by the Court. Now the constitu- this issue. I led off with it for 20 min- not sitting at a witness table in a Judi- tionality of statutes is upheld by the utes on my first round of questioning. ciary Committee hearing. Judge Alito Solicitor General. But in cases where And Judge Alito expressed his regard answered the questions as to the con- there is a conflict between what the for stare decisis, the Latin expression siderations which would be involved. Congress has to say and what the for let the decision stand. Again, he went about as far as he could President has to say, we ought to be in He commented that he agrees with go. a position to make our own submis- the position of Chief Justice Rehnquist On the question of congressional sions to the Court. on the Miranda case involving sus- power, I questioned him at length on The issue of Executive authority and pects’ rights on statements and confes- concerns I have about what the Su- the current surveillance practices sions. Chief Justice Rehnquist, earlier preme Court has had to say about de- came up for discussion in Judge Alito’s in his career, had been against Miranda claring acts of Congress unconstitu- confirmation hearings. Again, he could and later changed his view to support tional because the Supreme Court dis- not say how he would rule on the case Miranda once, as the Chief Justice put agrees with our ‘‘method of reasoning.’’ if it came before him. He would have to it, it became embedded in the culture The columns of the Senate building are read the briefs, hear the arguments, of police practices. And Judge Alito lined up exactly with those of the Su- consider it. But he responded by giving stated that he thought there was preme Court, situated across the green. us the factors and items which he weight to be accorded to cultural An interesting historical note, in an would consider. changes. early draft of the Constitution, the Many issues were discussed. Judge I think it is fair to have that state- Senate was to nominate Supreme Alito approached them with an open ment of principle apply on a woman’s Court Justices. That would be an inter- mind. One subject of particular concern right to choose. esting process, given the political com- to this Senator is the issue of tele- Judge Alito later testified that he plexion of the Senate today. vising the Court, which I think ought agreed with Justice Harlan’s dissent in Back to the point. What superior wis- to be done. The Supreme Court of the the case of Poe v. Ullman, that the dom and what superior method of rea- United States today makes the final constitution is a living document; and soning comes when a person crosses the decisions on so many of the cutting- that agreed with Justice Carodza in green to the Supreme Court of the edge questions of our time. The Amer- Palko v. Connecticut that it reflects United States? Our method of rea- ican people ought to know what is the changing values and mores of our soning may not be too good, but it is going on. A number of the Justices ap- society. our method of reasoning. To have the pear on television programs. There is

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00007 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S42 CONGRESSIONAL RECORD — SENATE January 25, 2006 no reason why the Court proceedings judges sang his praises, in terms of the Court. And she has been one of the should not be televised. Senator BIDEN openness and in terms of studiousness foremost proponents of a woman’s and I made that specific request on the and in terms of not having an agenda. right to choose, subject to some limita- case of Bush vs. Gore and got a re- One of the witnesses, former Judge tions. Justice Anthony Kennedy spoke sponse from Chief Justice Rehnquist Tim Lewis of the Third Circuit, an Af- very disparagingly about abortion denying it; however, they released an rican American, testified about his own rights before coming to the Court, and oral transcript of the proceedings at dedication to choice for a woman’s he has supported Roe v. Wade. Justice the end of the day and the Court is right to choose, his own dedication to David Souter, as attorney general for doing more of that, which is a step for- civil rights, civil liberties, and testified New Hampshire, opposed repealing New ward. very forcefully on Judge Alito’s behalf. Hampshire’s law banning abortions, The Congress has the authority to He said very bluntly he would not be even after it had been declared uncon- make decisions on the administration there if he did not have total con- stitutional by the Supreme Court of of the Court. For example, the Con- fidence in Judge Alito. the United States. The National Orga- gress decides how many Supreme Court One further comment: That is on the nization for Women had a rally on Cap- Justices there will be. We established party-line vote which we seem to be itol Hill when David Souter was up for the number at nine. Remember, in the coming to. He was voted out of com- confirmation in 1991—I remember it Roosevelt era there was an effort to mittee, 10 to 8; 10 Republicans voting well; I was there—with big placards pack the Court and increase the num- for Judge Alito; 8 Democrats voting ‘‘Stop Souter or Women Will Die.’’ Jus- ber to 15. That is a congressional judg- against Judge Alito. It is unfortunate tice Souter, too, has supported Roe v. ment. We decide when the Court starts our Senate is so polarized today. I be- Wade. to function: The third Monday in Octo- lieve this Senate and this body would So no one knows what will happen. ber. We decide what is a quorum of the benefit greatly by more independence President Truman was disappointed by Court: Six. We legislate on speedy trial in the Senate. his nominees in the famous steel sei- rules. It is within the purview of the I have not voted in favor of Judge zure case. Again and again and again, Congress to legislate, to call for the Alito as a matter of party loyalty. If I there have been surprises. The rule is, televising of their proceedings. I recog- thought he was not qualified, I would there is no rule. So on the committee nize the ultimate decision would rest vote no, as I have in the past on nomi- and in the Senate we are left to our with the Court if they decided to de- nees of my own party from Presidents best judgment as to qualifications clare our act unconstitutional. Under of my own party. without guarantees. The separation of separation of powers, that is their pre- But we need to move away from the powers entrusts to the President the rogative. I respect it. We ought to kind of partisanship, which has ripped role of making the nominations. It is speak to the subject. this body in recent times. I think it is up to the Senate to make an evalua- On the subject of television, again, important the American people have tion and then to confirm or not con- Judge Alito did not give the answer I confidence in what the Senate does on firm. After that, it is up to the Justices liked to hear—that he is for television the merits and that we avoid pro- to make the decisions on the Court. in the Court—but he said he had an jecting the appearance of rank politics. The separation of powers has served us open mind and would consider it. I believe it is important for Judge well. Again, that is about as far as he could Alito to have supporters who favor a Those are the facts which have led go. woman’s right to choose so he does not me to vote Judge Alito out of com- One panel of particularly impressive feel in any way beholden to or con- mittee affirmatively. And my vote will witnesses was seven judges from the firmed by people who have one or an- be cast when the roll is called later in Court of Appeals from the Third Cir- other idea on some of these questions. this floor debate. cuit who had worked with Judge Alito. Without naming names and identifying EXHIBIT 1 There is precedence for judges testi- people, we have more than six Repub- ALITO FLOOR STATEMENT fying. Retired Chief Justice Warren licans who are pro-choice, who support Mr. President, today the Senate begins the Burger came in to testify in the nomi- a woman’s right to choose. So the bal- debate on the confirmation of Judge Samuel nation proceedings for Judge Bork. ance of power will be, if confirmed, not A. Alito to be an Associate Justice of the That is something for which there is only on one side of that issue or an- United States Supreme Court. precedent. These judges have unique other. It has been 86 days, nearly three months, But I think we would do well to reex- since President Bush announced his choice of knowledge of Judge Alito because they Judge Samuel Alito to fill the seat being va- have worked with him in many cases. amine the procedures which we utilize cated by Justice Sandra Day O’Connor. Dur- Judge Becker, for example, former in the confirmation process to try to ing this time, my staff and I have under- Chief Judge of the Third Circuit, now move away from partisanship and to- taken an extensive review of Judge Alito’s on senior status, sat with Judge Alito wards getting an idea of the judge’s record, including an examination of his 238 on more than 1,000 cases. Judge Becker temperament, his background, his ju- major decisions while serving on the Third has a national reputation as an out- risprudence, where he stands, without Circuit Court of Appeals, a review of 49 of standing jurist. Recently, he received pressing him to the wall as to how he the cases Judge Alito handled during his ten- stands on any particular issue. ure as a United States Attorney, analyses of the award as the outstanding Federal 43 speeches and articles Judge Alito au- judge in the country. He testified about When we had the nomination of thored, and evaluations of the 38 formal Judge Alito not having an agenda, not White House Counsel Harriet Miers, opinions, petitions, and Supreme Court being an ideologue and having an open she was opposed by some because, as briefs which Judge Alito wrote while serving mind. one person put it, there was no guar- in the Department of Justice. Additionally, Judge Becker is regarded very much antee she would vote to overturn Roe. the Judiciary Committee held 30 hours and as a judge’s judge, a centrist judge, and Well, you cannot get guarantees from 20 minutes of hearings, which included 17 pointed out he and Judge Alito have Supreme Court nominees. I have said hours and 45 minutes of questioning of Judge disagreed very few times—about 25 before, and I think it is worth repeat- Alito and testimony from 33 outside wit- nesses. times—during the course of considering ing, guarantees are for used cars and Based on my thorough review of his record, more than 1,000 cases. washing machines. They are not for I intend to vote to confirm Judge Alito as After the arguments are concluded, nominees to the Supreme Court of the the 110th Justice of the United States Su- the three judges who sit on the panel United States. preme Court. I did not reach this decision retire and discuss the case among I think, when we examine tempera- lightly. As I have said before, except for a themselves; no clerks present, no secre- ment and background, including juris- declaration of war or its virtual equivalent, taries present, just a candid discussion prudence, those are the appropriate a resolution for the use of force, no Senate about what went on. That is where the tests. No one knows with certainty how vote is as important as the confirmation of a Supreme Court justice. And this vote is one judges really let their hair down and Judge Alito is going to vote. The cases that requires Senators to free themselves talk about the cases and get to know are full of surprises. Justice Sandra from the straight-jacket of party loyalty and what a judge thinks. It is a high testi- Day O’Connor was very much opposed exercise independent judgment. Under sepa- monial to Judge Alito that these to abortion rights before she came to ration of powers, Senators are separate from

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00008 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S43 the executive branch and have a full, inde- liberty. The Fifth Amendment protects lib- rape or incest could not obtain Medicaid pendent role in staffing the Third Branch of erty. And I think it is well accepted that this funding for her abortion unless she reported government. I have long adhered to this has a substantive component, and that that the crime to the police. The second provided view, which led me to vote against Judge component includes aspects of privacy that that if a woman needed an abortion to save Bork’s confirmation, even though he was have constitutional protection.’’ her life, she had to obtain a second opinion nominated by a President of my own party. Judge Alito also discussed whether Roe v. from a doctor who had no financial interest If I thought Judge Alito should not be con- Wade is so well established that it should not in the abortion. The question was whether firmed, I would vote no again. be overturned. Judge Alito stated: ‘‘I agree these laws conflicted with a federal regula- Judge Alito has sterling academic creden- that in every case in which there is a prior tion issued by the Secretary of Health and tials, having excelled at Princeton Univer- precedent, the first issue is the issue of stare Human Services. The case did not involve a sity and the Yale Law School. Judge Alito decisis, and the presumption is that the question of constitutional law. There was no began his lifetime commitment to public Court will follow its prior precedents. There binding Supreme Court precedent on point. service with a prestigious clerkship for needs to be a special justification for over- Judge Alito easily could have upheld the Judge Leon I. Garth of the United States ruling a prior precedent.’’ abortion restrictions if he wished to. Indeed, Court of Appeals of the Third Circuit. For Some Members of the Judiciary Com- another Third Circuit judge appointed by the next thirteen years, Judge Alito served mittee have argued that Judge Alito was less President Reagan voted to do just that. But his country as an Assistant to the U.S. Solic- forthcoming on this issue than Chief Justice Judge Alito voted to strike down both laws itor General, a Deputy Assistant Attorney Roberts was during his Supreme Court con- in favor of a woman’s right to choose. This is General in the Office of Legal Counsel, and firmation hearing, when he called Roe v. not the behavior of someone bent on chip- as both the United States Attorney for New Wade ‘‘settled law.’’ Comparing the testi- ping away at Roe v. Wade. This is the behav- Jersey and an assistant United States Attor- mony of the two nominees, I cannot see a ior of a moderate jurist who understands the ney in that same office. When Judge Alito dime’s worth of difference between their re- importance of precedent. was appointed to his current position on the sponses. I asked Chief Justice Roberts what The fact is that, notwithstanding Sen- Third Circuit Court of Appeals, the ABA he meant when, as a nominee for the circuit ators’ concerted efforts, it is not possible to unanimously voted to award Judge Alito its court, he said Roe was settled law. Specifi- predict how Judge Alito will rule on the highest possible rating, and Judge Alito en- cally, I asked him if he meant it was settled issue of abortion. If there is a rule on expec- joyed broad bipartisan support, as reflected for him as a circuit court judge, or if it was tations, it is probably one of surprise. Two or by the fact that he was confirmed by unani- settled beyond that, even as a Supreme three decades ago, no one would have pre- mous consent. Court Justice. He answered: ‘‘beyond that, dicted that Justices O’Connor, Kennedy, or Judge Alito’s achievements are all the it’s settled as a precedent of the Court, enti- Souter would have voted to uphold a wom- more impressive when one realizes that tled to respect under principles of stare deci- an’s right to choose. At her confirmation Judge Alito was not born with a silver spoon sis.’’ hearing, Justice O’Connor testified that she in his mouth. Judge Alito’s father was Similarly, Judge Alito testified that ‘‘Roe personally viewed abortion with ‘‘abhor- brought to this country from Italy as an in- v. Wade is an important precedent of the Su- rence’’ and stated, ‘‘my own view in the area fant and grew up in poverty. Although his fa- preme Court’’ and that the Court’s reaffir- of abortion is that I am opposed to it as a ther graduated at the top of his high school mation of that case ‘‘strengthens its value as matter of birth control or otherwise.’’ Yet, class, he had no money for college, and he stare decisis.’’ Moreover, both Chief Justice roughly 10 years later, she voted to uphold was set to work in a factory. It was only be- Roberts and Judge Samuel Alito testified Roe v. Wade and has done so ever since. Jus- cause at the last minute, a kind person ar- that they agreed with the result in tice Kennedy explained that he ‘‘was brought ranged for him to receive a $50 scholarship, Eisenstadt, that unmarried people may not up to think of abortion as a great evil. He that he was able to attend college. Despite be denied contraception, and with the once denounced the Roe decision as the Dred the discrimination he faced as an Italian im- foundational case of Griswold v. Con- Scott of our time, a reference to the infa- migrant in 1935, Judge Alito’s father eventu- necticut, which guaranteed that same right mous 1857 ruling that sanctioned slavery and ally became a teacher, served in the Pacific to married couples. Both Chief Justice Rob- helped spark the Civil War.’’ Yet, in 1992, during World War II, and held a nonpartisan erts and Judge Samuel Alito agreed that Justice Kennedy cast the deciding vote in position for the New Jersey Legislature. with the view that the Constitution’s Due Casey v. Planned Parenthood to uphold Roe Judge Alito put it best when he said: Process Clause includes a substantive protec- v. Wade. When he was New Hampshire Attor- ‘‘my parents taught me through the stories tion of privacy—the legal view underpinning ney General, Justice Souter filed a brief ar- of their lives . . . and it is the story, as far Roe v. Wade. And both Chief Justice Roberts guing that tax payer dollars should not be as I can see it, about the opportunities that and Judge Samuel Alito refused to make used to fund ‘‘the killing of unborn children’’ our country offers and also about the need commitments on how they would vote in and defended abortion laws that had already for fairness and about hard work and perse- abortion cases, including how they would been undermined by Roe v. Wade. During his verance and the power of a small good deed.’’ rule if Roe came before the Court again. This confirmation hearing, the National Organi- I have participated in the confirmation is as it should be: no nominee for the Su- zation for Women organized a rally against hearings for the past eleven nominees to the preme Court or any other Court should be re- his confirmation entitled ‘‘Do or Die Day’’ Supreme Court. Although judgments may quired to commit to how they would rule on and distributed flyers proclaiming ‘‘Stop differ, I think that Judge Alito went farther a potential case before them. Souter or women will die.’’ Yet, on the Su- in answering questions than most Justices in I was pleased to hear Judge Alito confirm preme Court, Justice Souter has consistently the past. Indeed, Senator BIDEN commented, that he does view the Constitution as a liv- voted to uphold a woman’s right to choose. ‘‘you have been very gracious. I appreciate ing document. Judge Alito stated, ‘‘I think Similarly, there have been dire predictions you being responsive.’’ By one reckoning, the Constitution is a living thing in the about Judge Samuel Alito. The National Or- Judge Alito was asked 677 questions and an- sense that matters, and that is . . . it sets up ganization for Women has released another swered some 659—97%. That is far more than a framework of Government and a protection flyer—this one declaring ‘‘Save Women’s Justice Ginsburg, who answered only 307 out of fundamental rights that we have lived Lives. Vote No on Alito.’’ The rule is that of 384 questions, or 80%, or Justice Breyer, under very successfully for 200 years, and the there is no rule. who answered only 291 out of 355 questions, genius of it is that it is not terribly specific Judge Alito was also questioned exten- or 82%. Judge Alito did not refuse to respond on certain things. It sets out some things are sively on Executive power and whether the because a similar case might come before the very specific, but it sets out some general resolution for the authorization of use of Court. He ultimately stopped short of mak- principles, and then leaves it for each gen- force gave the President authority to engage ing commitments as to how he would vote, eration to apply those to the particular fac- in electronic surveillance. When I asked as he should. But for each topic that was tual situations that come up. . . . As times Judge Alito whether he agreed with Justice raised, Judge Alito discussed the relevant change, new factual situations come up, and O’Connor’s statement in Hamdi that ‘‘We constitutional considerations and his judi- the principles have to be applied to those sit- have long since made clear that a state of cial philosophy. uations. The principles don’t change. The war is not a blank check for the President For example, on the topic of a woman’s Constitution itself doesn’t change, but the when it comes to the rights of the Nation’s right to choose, Judge Alito agreed that the factual situations change, and as new situa- citizens,’’ Judge Alito responded, ‘‘Abso- Constitution creates a right to privacy. I tions come up, the principles and the rights lutely. That’s a very important principle. asked Judge Alito whether he agreed with have to be applied to them.’’ Our Constitution applies in times of peace the Supreme Court’s holding in Eisenstadt, Judge Alito’s record confirms that he is and in times of war, and it protects the which established that unmarried women not an ideologue on a crusade to curtail Roe rights of Americans under all cir- have a constitutional right to contraception v. Wade. He has upheld a woman’s right to cumstances.’’ Judge Alito went somewhat and was an underpinning of the Supreme choose even when he had the discretion to beyond the usual practice of answering just Court’s decision in Roe v. Wade. Judge Alito limit abortion rights. For example, in the as many questions as he needed to in order replied directly, ‘‘I do agree with the result 1995 case of Elizabeth Blackwell Medical to be confirmed. While he would not commit in Eisenstadt.’’ When Senator FEINSTEIN Center for Women v. Knoll, Judge Alito to giving answers to hypothetical situations asked Judge Alito whether the Constitution struck down two abortion restrictions by the which may come before the Court, he fully guarantees a right to privacy, Judge Alito State of Pennsylvania. The first provided explained his methods of reasoning. For ex- responded: ‘‘The 14th Amendment protects that a woman who became pregnant due to ample, when questioned by me and other

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00009 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S44 CONGRESSIONAL RECORD — SENATE January 25, 2006 Senators about how he would decide ques- with him. The process that appellate judges mitment to civil rights who has worked tions dealing with the limits of executive go through in rendering decisions is not fa- closely with Judge Alito, that testimony is power, he responded that he would apply miliar to many people and it was very in- entitled to considerable weight. Justice Jackson’s framework from the structive to have the insight of these judges. Judge Lewis’ testimony supported my view Youngstown Steel case: Judge Edward Becker, the former Chief of Judge Alito from examining his cases. In- ‘‘[A]s I said, the President has to follow Judge of the Third Circuit is one of the most deed, I have found many cases where he has the Constitution and the laws and, in fact, acclaimed jurists of our time. He recently defended civil rights and the interests of Af- one of the most solemn responsibilities of won the coveted Devitt Award as the Out- rican Americans. For example: the President—and it is set out expressly in standing Federal Jurist of the year. I know In U.S. v. Kithcart, Judge Alito held that the Constitution—is that the President is to Judge Becker very well since our college and the Fourth Amendment does not allow police take care that the laws are faithfully exe- law school days, so, I take his views seri- to target drivers because of the color of their cuted, and that means the Constitution, it ously. skin. After a police officer received a report means statutes, it means treaties, it means Judge Becker has sat on over a thousand that two black men in a black sports car had all of the laws of the United States. cases with Judge Alito and, as he testified, committed three robberies, she pulled over ‘‘But what I am saying is that sometimes they only disagreed 27 times. In each of the first black man in a black sports car she issues of Executive power arise and they those cases, Judge Becker testified, Judge saw. Judge Alito ruled that this violated the have to be analyzed under the framework Alito’s ‘‘position was closely reasoned and Constitution. that Justice Jackson set out. And you do get supportable either by the record or by his in- In Brinson v. Vaughn, Judge Alito ruled cases that are in this twilight zone and it terpretation of the law, or both.’’ Judge that the Constitution does not allow pros- is—they have to be decided when they come Becker testified that he knows Judge Alito ecutors to exclude African Americans from up based on the specifics of the situation.’’ approaches judging with no agenda and was juries. In that case, the prosecutor had used When Judge Alito was similarly questioned not an ideologue. He said, ‘‘The Sam Alito 13 of his 14 ‘‘strikes’’ to exclude African- about the President’s power to control the that I have sat with for 15 years is not an Americans from the jury, but argued that executive branch, he responded by explaining ideologue. He is not a movement person. He this was not a problem, because he allowed 3 in full: is a real judge deciding each case on the African-Americans onto the jury. Judge ‘‘[A]s to the agencies that are headed by facts and the law, not on his personal views, Alito explained that the prosecutor could commissions, the members of which are ap- whatever they may be. He scrupulously ad- not get around the Constitution by allowing pointed for terms, and there are limitations heres to precedent. I have never seen him ex- a handful of African-Americans onto the placed on removal, the precedents—the lead- hibit a bias against any class of litigation or jury. In Zubi v. AT&T Corp., Judge Alito au- ing precedent is Humphrey’s Executor and litigants.’’ that is reinforced, and I would say very dra- The current Chief Judge of the Third Cir- thored a lone dissent, opposing the establish- matically reinforced, by the decision in Mor- cuit, Judge Anthony Scirica, confirmed this ment of a stringent limitations period in which civil-rights plaintiffs would have to rison, which did not involve such an agency. view of Judge Alito, as did Judge Maryanne file a claim. The Supreme Court unani- It involved an officer who was carrying out Trump Barry, and all the other current and mously vindicated Judge Alito’s position what I think everyone would agree is a core retired judges who testified. function of the executive branch, which is I thought that the testimony of Judge four years later. In Reynolds v. USX Corporation, Judge the enforcement of the law, taking care that Timothy Lewis was particularly influential, Alito ruled in favor of Deborah Reynolds, an the laws are faithfully executed. . . . given his background. He is an African African-American woman who was subjected ‘‘[W]hat I have tried to say is that I regard American who described himself at the hear- to racial and sexual harassment at work. Her this as a line of precedent that is very well ing as ‘‘unapologetically pro-choice’’ and as employer claimed that the company developed and I have no quarrel with it and ‘‘a committed human rights and civil rights shouldn’t be liable because the harassment it culminates in Morrison, in which the Su- activist.’’ He joked that it was no coinci- came from her coworkers, rather than super- preme Court said that even as to an inferior dence that he happened to be sitting at the visors. Alito concluded that her supervisors officer who is carrying out the core execu- ‘‘far left’’ end of the panel of judges. were aware of the harassment and the com- tive function of taking care that the laws are Still, based on his personal knowledge of pany had a duty to end it. faithfully executed, it is permissible for Con- the kind of judge Judge Alito is, Judge Lewis During Judge Alito’s time on the bench he gress to place restrictions on the ability of spoke enthusiastically in his favor. He said: has also demonstrated great sensitivity to the President to remove such an officer, pro- ‘‘having worked with him, I came to respect the unique challenges faced by people with vided that in doing so, there is no inter- what I think are the most important quali- disabilities. He understands that people with ference with the President’s authority, and ties for anyone who puts on a robe, no mat- disabilities are still subject to discrimina- they found no interference with that author- ter what court they will serve on, but in par- tion in our society and that they are entitled ity there. That is an expression of the Su- ticular the United States Supreme Court, to full civil rights. As he testified at his preme Court’s view on an issue where the and first and foremost among these is intel- hearing: ‘‘When I have a case involving claim for—where the claim that there should lectual honesty.’’ someone who’s been subjected to discrimina- be no removal restrictions imposed is far He testified that ‘‘I cannot recall one in- tion because of disability, I have to think of stronger than it is with respect to an inde- stance during conference or during any other people who I’ve known and admired very pendent agency like the one involved in experience that I had with Judge Alito, but greatly who had disabilities and I’ve watched Humphrey’s Executor.’’ in particular during conference, when he ex- them struggle to overcome the barriers that I have expressed my concern, for some hibited anything remotely resembling an society puts up, often just because it doesn’t time now, about the case of United States v. ideological bent. That does not mean that I think of what it’s doing, the barriers that it Morrison, where the Supreme Court declared agreed with him, but he did not come to con- puts up to them.’’ part of the Violence Against Women Act un- ference or come to any decision that he made He has issued several important decisions constitutional. The majority opinion in that during the time that I worked with him vindicating the rights of people with disabil- case dismissed lengthy Congressional find- based on what I perceived to be an ideolog- ities. Thomas v. Commissioner of Social Se- ings because five justices disagreed with our ical bent or a result-oriented demeanor or curity, which Judge Alito discussed at his ‘‘method of reasoning.’’ The inference was approach. He was intellectually honest, and I hearing, is a good example of this. It is also that they believed the Court has a superior would say rigorously so, even with respect to one of the few cases where Judge Alito was method of reasoning to the Congress. I be- those areas that he and I did not agree.’’ reversed by the Supreme Court—in this in- lieve that the Constitutional separation of In the area of civil rights, Judge Alito has stance unanimously—because the Court powers rejects that kind of view and I know a strong record. In his tenure as the U.S At- thought that Judge Alito went too far to that many of my colleagues share this con- torney for New Jersey, he took steps to di- protect the ‘‘little guy.’’ cern. versify the office—hiring and promoting In that case, Judge Alito ruled in favor of I asked Chief Justice Roberts about this women and minorities. Since taking the a woman with disabilities who sought social during his confirmation hearings and I raised bench, he has continued to demonstrate a security benefits. The Social Security Ad- it again with Judge Alito. Judge Alito said commitment to civil rights. Of course, when ministration concluded that the plaintiff was that: ‘‘I would never suggest that judges a judge has decided over 4,800 cases, as Judge not entitled to benefits because she could have superior reasoning power than does Alito has, it is possible to select a few of his still perform her former job as an elevator Congress . . . I think that Congress’ ability cases to place him at any and every position operator—even though such jobs no longer to reason is fully equal to that of the judici- on the judicial spectrum. But, on balance, exist. Judge Alito thought that such a rigid ary.’’ Judge Alito’s record in this area is more application of the law ‘‘sets up an artificial The Judiciary Committee had the rare, but than satisfactory. roadblock’’ to people seeking disability bene- not unprecedented, opportunity to hear from Again, Judge Lewis’s testimony is instruc- fits. He saw ‘‘no plausible reason why Con- seven of Judge Alito’s current and former tive. He told the Committee that ‘‘[I]f I be- gress might have wanted to deny benefits to colleagues on the Third Circuit. These men lieved that Sam Alito might be hostile to an otherwise qualified person simply because and women, Democrat and Republican ap- civil rights as a member of the United States that person, although unable to perform any pointees, know his record best. They have Supreme Court, I can guarantee you that I job that actually exists in the national econ- heard cases with him and sat in conference would not be sitting here today.’’ Coming omy, could perform a previous job that no with him, they have worked to craft opinions from some one with an unquestioned com- longer exists.’’

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00010 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S45 Thomas is only one example of Judge treme cases, it is not negligent for a patient cisions every day based on the law and Alito’s strong record on disability rights. He such as Alyssa or her parents to follow the the facts, not on their personal, polit- has ruled in favor of numerous workers, stu- advice of primary care physicians.’’ ical, religious, moral or social views. If dents, customers, and disability advocacy In Cort v. Director, Judge Alito wrote an we descend to that level, if we allow groups on disability-related claims. Often opinion ruling for and awarding benefits to a times, he has reversed the rulings of lower former coal miner under the Black Lung those social, political views to affect or courts to do so. Other examples include: Benefits Act. An Administrative Law Judge infect the decision-making process, Shapiro v. Township of Lakewood, where had denied the worker’s claim, finding that justice has been eroded. That is con- Judge Alito authored the majority opinion since he was able to obtain work as a wire trary to every ideal of the American in favor of an EMT technician who became cutter, he wasn’t disabled. Judge Alito found rule of law. disabled on the job and was denied an inter- that the statute and associated regulations What is important today is Judge departmental transfer to a position as a po- established a presumption of total disability Alito’s legal philosophy. It is not his lice dispatcher. due to Black Lung when a claimant worked political philosophy that is important. Fiscus v. Wal-Mart Stores, Inc., where for more than 10 years as a miner and met Judge Alito ruled in favor of a victim of dis- one of four medical requirements—which the What is his legal philosophy? The core ability discrimination who suffered from plaintiff satisfied. He reasoned that the stat- of his beliefs as a judge is that a judge end-stage renal disease and sought permis- ue focused on the source of disability, not its should be careful, fair, restrained, and sion from her employer to self-administer di- degree. honest in analyzing the facts of the alysis every four to six hours during the These cases are just a few examples from case and applying the relevant law to workday. Judge Alito voted to reverse the Judge Alito’s lengthy record. My staff has those facts. For what purpose? To de- lower courts ruling that kidney failure was identified and analyzed scores of cases where not covered by the Americans with Disabil- cide that dispute, that discrete issue Judge Alito has ruled for minorities, immi- that is before the Court at that time ities Act. grants, people with disabilities, prisoners, Mondzelweski v. Pathmark Stores Inc., and other disadvantaged plaintiffs. It is this and not to indulge, as he indicated, in where Judge Alito ruled in favor of a meat record that has won him the enthusiastic great theories. That is not what a cutter who became injured on the job and support of his fellow judges on the Third Cir- judge is about. could no longer lift heavy objects. He over- cuit. So this is what American judges turned the judgment of a lower court that Judge Alito is anything but a ‘‘stealth’’ must do for our entire legal system to refused to consider his disability in light of candidate. Those who opposed Chief Justice work. That is why I am so proud that his low education and skill level. Judge Alito Roberts’ nomination asked for a nominee believe that the impact of a disability had an President Bush has given us two nomi- with a deeper record to analyze. In Judge nees who can explain, articulate that individual’s inability to work must take into Alito, they have such a person. The Com- account his particular background and mittee had the opportunity to review lit- role of a judge in a way every Amer- skills. erally thousands of decisions and some 461 ican can understand, relate to, and af- Shore Regional High School Board of Edu- written opinions. It also had the opportunity firm. cation v. P.S., where Judge Alito again re- to hear directly from Judge Alito as he gave My colleagues, I am afraid, lack a versed a lower court to find in favor of a lengthy testimony. In three days of intense proper understanding of this concept. plaintiff with disabilities. The plaintiff in questioning in which he spent over 18 hours It goes to the core of our differences that case was a child with disabilities who in the witness chair, Judge Alito was asked over judges. They want judges, I am had suffered severe harassment from bullies roughly 677 questions. By comparison, Jus- at his school. Because an Administrative afraid, who will impose their own tice Ginsburg was asked 384 questions and views, their personal views, on political Law Judge had found that the student could Justice Breyer was asked only 355 questions. not get an appropriate education in this en- Clearly, Judge Alito’s record has been vetted issues in the guise of deciding discrete vironment, Judge Alito ruled that the stu- as thoroughly as any nominee’s possibly cases before them. Oftentimes, these dents’ parents should be reimbursed for tui- could be. are views that cannot be passed in the tion at a neighboring public high school. It is on the basis of this record that I political, legislative process but can Pennsylvania Protection & Advocacy, Inc. reached my conclusion to vote aye on the v. Houstoun, where Judge Alito sided with a only be imposed by a judge who simply nomination of Judge Alito to be an Associate redefines or reinterprets the meaning group advocating for the rights of the men- Justice of the United States Supreme Court. tally ill and ordered a state hospital to re- of words in our Constitution, and they lease internal reports on the death of a pa- I thank the Chair and I now yield the declare that the Constitution says that tient who attempted suicide and later died floor. same-sex marriage must be the law of under hospital care. He rejected the state of The PRESIDING OFFICER. The Sen- the land. They just declare that to be Pennsylvania’s arguments that these docu- ator from Alabama. so. It only takes five unelected, life- ments were protected from release under Mr. SESSIONS. Mr. President, I time appointed judges to set that kind state law. thank Senator SPECTER for his excel- Judge Alito has authored a number of of new standard for America. other important, progressive, opinions, vin- lent leadership of the Judiciary Com- Is there any wonder people are wor- dicating the rights of the so-called ‘‘little mittee during both the Roberts and ried about that? It erodes democracy at guy’’. For example, in Fatin v. INS, Judge Alito hearings. He squarely addressed its most fundamental level when polit- Alito held that an Iranian woman could es- the tough issues in the first ques- ical decisions are being set by judges tablish a basis for asylum if she showed that tioning. He made sure every member of with lifetime appointments, unac- compliance with Iran’s gender specific laws the committee had full and ample op- countable to the public. would be deeply abhorrent to her or that the portunity to ask any question they So that is what we are worried about Iranian government would persecute her be- wanted. We had 30-minute rounds. We in so many different ways. There has cause of her gender. This is a landmark case that established gender-based discrimination had opening statements. We had the been a trend in that regard, no doubt as possible grounds for asylum. opportunity to have multiple rounds. about it, by our courts. I think they In Alexander v. University of Pittsburgh Basically, I think the people could have abused their authority by taking Medical Center System, Judge Alito dis- have asked questioned theses nominees an extremely hostile view toward the sented from the court’s ruling in favor of a for as long as they wanted. expression of religious conviction in hospital in a medical malpractice case. A Of course, both Roberts and Alito public life. young woman had been hospitalized for a were magnificent in their testimony, They have struck down Christmas rare illness of the liver. Based on advice from superb in their knowledge of the Con- several doctors, her parents waited for one displays. Our courts have declared our and one-half months before ordering a liver stitution and the role of a judge in Pledge of Allegiance to the Govern- transplant. The young girl died, and the par- every possible way. That is why they ment unconstitutional because it has ents sued. The jury ruled for the parents and have been favorably received by the ‘‘under God’’ in it. By the way, for awarded substantial damages. The majority American public which is why Chief those of you who can see the words of the Third Circuit reversed the jury’s ver- Justice Roberts was confirmed, and over this door, ‘‘In God We Trust,’’ it is dict against the doctors, explaining that the why Alito will be confirmed. part of our heritage, written right on trial court judge should have instructed the We have the greatest legal system in the wall of this Chamber. jurors to consider whether the parents were the world. It is the foundation of our This is an extreme interpretation of partly responsible for the young girl’s death. Judge Alito dissented, concluding that the liberties. It is the foundation of our the separation of church and state. It fault for any poor decision rested with the economic prosperity. But the focus and is not consistent with our classical un- defendant doctors, not the parents. Judge the key ingredient of our legal system derstanding of law in America. We had Alito wrote: ‘‘Except perhaps in truly ex- is an independent judge who makes de- the Supreme Court, in this past year,

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00011 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S46 CONGRESSIONAL RECORD — SENATE January 25, 2006 redefining the takings clause. The that. I am afraid there has been an at- decency. Some of us on the conserv- takings clause says you can take pri- tempt to change the ground rules of ative side have questioned the bar asso- vate property for public use. confirmations, to set standards we ciation. They are pro-abortion in their It does not say you can take it for have never set before for nominees. positions. They take liberal positions any purpose, like a private mall. They That knife cuts both ways. If this is af- on a lot of issues, and some people have redefined the meaning because they firmed, then there will be more dif- criticized them for that. They declare thought that was smarter, better pol- ficulty in the future for Democratic their ratings of judges are not based on icy. But we don’t appoint judges to set Presidents to have their nominees con- that. But sometimes they have been policy. As legislators, we have that re- firmed. accused of allowing their personal sponsibility. We are the people who Judge Alito has a remarkable record. views to infect that rating process. will be voted out of office if we set bad He is the son of immigrants in New How did the American Bar Associa- policy. We are the ones meeting people Jersey. His father was an immigrant to tion rate Judge Alito? They gave him every day and campaigning, trying to this country. He goes off to Princeton, their highest possible rating. They understand what the American people gets his degree with honors, declines to found that he was well qualified, unani- care about. That is not what judges do, accept an invitation to join an eating mously, by the 15-member committee at 80 years old, sitting over there read- club that excludes women and others. I that meets to decide that issue. They ing briefs every day. guess that was beneath the members of interviewed 300 people, people who have This is an important issue. They de- that club. He decided while he was litigated against Judge Alito as a pri- clared that illegal aliens, despite State there that he would just dine with ev- vate lawyer, people who have been his laws to the contrary, are entitled to erybody else, the scruff and the scrum supervisors, people who have worked benefits. They struck down every par- that you find at Princeton. Then he for him, people who had their cases de- tial-birth abortion law. They have de- went to Yale Law School where he fin- cided by him. clared that morality—this is hard to ished at the top of his class, served as They go out and talk to these people. believe but true in recent years—can- editor of the Yale Law Journal, partici- They will share with the American Bar not be a basis for congressional legisla- pated in the ROTC at a time when that Association privately what they might tion. Yet they contend that they may was not an easy thing to do, served in not say publicly. So they interviewed decide opinions and redefine the mean- the Army Reserve for 8 years, and was 300 people, and contacted over 2,000. ing of words and the understanding of offended that Princeton would kick the They concluded that Judge Alito has words over hundreds of years based on ROTC from their campus. I am sure he established a record of both proper ju- what they declare to be evolving stand- was not pleased when the rioters dicial conduct and evenhanded applica- ards of decency. bombed the ROTC building at Prince- tion in seeking to do what is fun- Is that a standard or is that just a li- ton. damentally fair. cense for a judge to do whatever they He is an American. He believes in his They declare that Judge Alito was feel like doing at a given time? Evolv- country. He was prepared to serve his held ‘‘in incredibly high regard.’’ That ing standards of decency, who can de- country, go where he was asked to go, was said by attorney John Payton, an fine that? Do they have hearings on if called upon in that fashion. African American who argued the Uni- what these standards are? He was chosen to clerk for the Third versity of Michigan quota case before These are important issues. The Circuit after he graduated, the court the U.S. Supreme Court, not a right- American people are concerned about on which he now sits with Judge Garth. winger. He said they found the people it. President Bush was concerned about That is quite an honor. For 3 years he they interviewed held Judge Alito in it. He promised he would appoint served as assistant U.S. attorney in incredibly high regard. I asked him if judges who show restraint, judges of that great large New Jersey law office he chose that word carefully. He said: I great ability and integrity but who for the U.S. attorney where he argued did; yes, sir. would show restraint and be more mod- appellate cases. He did the appellate Judge Alito represents that neutral est in the way they handle these cases. work. That is what he will be as a Su- magistrate that we look for in our That is a fair standard. It is a legiti- preme Court judge, an appellate judge, judges in America. His academic record mate issue for the American people to not a trial judge. That is what he did is superb. His proven intelligence is un- decide. He talked about it in almost when he started out his practice. Then surpassed. The experience he brings to every speech he made. That is what he he went to the Solicitor General’s Of- the U.S. Supreme Court is extraor- promised to do, and that is what he has fice of the Department of Justice, dinary, including 15 years as an appel- done. which is often referred to as the great- late judge doing in a lower court basi- If we were to name judges, there is a est job for an attorney in the world, to cally the same thing one would do at legitimate concern that we would ap- be able to stand up in the courts of the the Supreme Court level. point judges who would promote some United States of America, particularly This is what he said at the hearing: conservative agenda. I don’t favor that; the Supreme Court, and to represent The PRESIDING OFFICER (Mr. GRA- I oppose that. We don’t want a judge to the United States in that court. He ar- HAM). The majority’s time has expired. promote a liberal or a conservative gued 12 cases before the Supreme Mr. SESSIONS. Mr. President, I ask agenda, although the plain fact is, if Court. Not one-half of 1 percent of the unanimous consent for 30 seconds to anybody looks at it squarely, they will lawyers in America have probably ar- wrap up. see that the Court has actually been gued any case before the Supreme The PRESIDING OFFICER. Without promoting a more liberal agenda. But Court. He argued 12. That is a reflec- objection, it is so ordered. we are not asking that a conservative tion of his strength and capability. Mr. LEAHY. I understand our side agenda be promoted. We are asking Then he became U.S. attorney in New will also get an additional 30 seconds. that the courts maintain their role as Jersey, which is one of the largest U.S. a neutral umpire to decide cases based attorney offices in America, where he Mr. SESSIONS. This is what he said: on the law passed by the legislative prosecuted the Mafia and drug organi- I had the good fortune to begin my legal branch or State legislatures or passed zations and was highly successful in career as a law clerk for a judge who really epitomized openmindedness and fairness. He by the people through the adoption of that office and won great plaudits for read the record in detail in every single case. the U.S. Constitution. his performance. He then was placed, 15 He insisted on following precedent, both the I don’t understand the opposition to years ago, on the Third Circuit Court precedents of the Supreme Court and the de- Judge Alito. He is such a fabulous of Appeals. He has served as a circuit cisions of his own court. He taught all of his nominee. It does appear, according to judge in the Third Circuit Court of Ap- law clerks that every case had to be decided the New York Times last week, the peals for 15 years, writing some 350 on an individual basis. He really didn’t have 19th of January, that our Democratic opinions and participating in many much use for grand theories. leader, Senator HARRY REID, has urged others. That is what we need on the bench his colleagues to vote no so they can, He has had his record exposed to the today. I think it would restore the pub- for political reasons, make it a polit- world. What does it look like? Without lic confidence. I am proud to support ical issue. We need to be careful about question, it is a record of fairness and this nomination.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00012 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S47 Mr. President, I respect Senator cancy, Harriet Miers. It was a humilia- this nomination is part of that plan for LEAHY. He is an excellent advocate for tion of the President by an extreme the intrusion into our private lives. I the Democratic side. I was pleased he faction in his party. Within hours of am concerned that if we confirm this supported Judge Roberts, and I am not the time he nominated her, many nominee, it will further erode checks as thrilled he is not supporting Judge groups on the far right criticized the and balances that have protected our Alito. It was a process that was a bit nomination, and a number of Repub- constitutional rights for more than 200 rough at times, but fundamentally I lican Senators raised serious concerns years. It is not overstating the case to think the judge was able to have his calling for a thorough hearing and a say this is a critical nomination. It is day in court. probing inquiry in light of their con- one that can tip the balance on the Su- I yield the floor. cerns about her record. preme Court radically away from the Mr. LEAHY. Mr. President, I ask The same groups on the right imme- constitutional checks and balances and unanimous consent that we may go a diately embraced Samuel Alito after the protection of Americans’ funda- couple of minutes beyond 12 o’clock. they had forced Harriet Miers to be mental rights. The PRESIDING OFFICER. Without withdrawn. The same Republican Sen- This past week, I introduced a resolu- objection, it is so ordered. ators who said they needed to learn tion to clarify what we all know, that Mr. LEAHY. Mr. President, I appre- more about Harriet Miers’ judicial phi- the congressional authorization for the ciate the compliment of the Senator losophy before they could vote to con- use of military force against Osama bin from Alabama. I have spent 31 years in firm her are now doing an about face Laden did not authorize warrantless the Senate. I take my role in the Sen- and criticizing Democrats for saying spying on Americans, as the adminis- ate very seriously. I believe we should they want to do the same type of in- tration has now claimed. I thought—we be the conscience of the Nation. As I quiry for Judge Alito. President Bush all thought—that when we as Demo- have said many times, only 18 people buckled to pressure and withdrew the crats joined in the bipartisan author- get to publicly ask questions of the Su- nomination for Harriet Miers because ization of military action against preme Court nominees. They are the 18 she didn’t pass the litmus test and be- Osama bin Laden more than 4 years Members of the Senate Judiciary Com- cause there were those who said they ago, our action would have been more mittee. We are asking those questions were not sure how they would vote. effective and that we would have by on behalf of almost 300 million Ameri- The third nomination—Judge now succeeded in ridding the world of cans, and then 100 of us get a chance to Alito’s—people applauded, implying that terrorist leader. We gave the vote on it. that here we have somebody who we President all the authority he needed While the Senator from Alabama is know how he will vote, so he is fine. to go after Osama bin Laden, and we still on the floor, I note that there Democratic Senators are taking their thought with the great power of this seem to be talking points going around constitutional duties seriously. We country he would have gone out and that the Democratic leader, Senator have a single fundamental question: caught him. He didn’t. They averted REID, has been lobbying to make this a Will the Senate serve its constitutional our special forces out of Afghanistan party-line vote. I don’t know where role and preserve the Supreme Court as and into Iraq before we even announced those talking points came from. I have a constitutional check on the expan- we were going to go to war against heard them in different places. The sion of presidential power? Iraq. We lost the opportunity to catch Democratic leader was asked about A nominee’s views on Executive Osama bin Laden, the man who did that yesterday by the press in open ses- power and the checks and balances order the attacks on America. sion. He said it is absolutely not so. I built by the Founders into our con- Now we find the administration, in- am the ranking member of the Senate stitutional framework should always stead of saying sorry we didn’t catch Judiciary Committee. Just as nobody weigh heavily in hearings for those Osama bin Laden, even though you from leadership has lobbied me on now- nominated to the Supreme Court. Ex- gave us the authority, we now want to Chief Justice Roberts when I voted for ecutive power issues were the first use that authority as legal justifica- him, nobody has lobbied me on Judge issues I raised with Chief Justice Rob- tion for a covert, illegal spying pro- Alito; nor have I lobbied anybody else, erts at his confirmation hearing, and gram on Americans. and nor have I heard of anybody who they were the first issues I raised with As Justice O’Connor underscored has been lobbied. Judge Alito. very recently, even war ‘‘is not a blank What the distinguished senior Sen- The reason presidential power issues check for the President when it comes ator from Nevada, the Democratic have come to dominate this confirma- to the rights of the Nation’s citizens.’’ leader, has said over and over again is tion process is that we have clearly ar- Now that the illegal spying on Amer- that this is a vote of conscience. Every rived now at a crucial juncture in our icans has become public, the Bush ad- Senator has to search his or her own Nation, and on our highest court, over ministration’s lawyers are contending conscience. In fact, I was also con- the question of whether a President of that Congress authorized it. The Sep- cerned when the distinguished Repub- the United States is above the law. The tember 2001 authorization to use mili- lican leader opened the debate on this Framers knew that unchecked power tary force did no such thing. It did not nomination by complaining that those leads to abuses and corruption, and the authorize illegal spying on Americans. opposing Judge Alito are smearing a Supreme Court is the ultimate check Republican Senators know it, and some decent and honorable man. Mr. Presi- and balance in our system. Vibrant have been courageous to say so pub- dent, again, out of almost 300 million checks and balances are instruments in licly. The fact is, we all know it. The Americans, only 100 of us get a chance protecting both the security and the liberties and rights that define us as to say whether this man will go on the liberty of the American people. Americans and the system of checks Supreme Court, where he can sit there This is a nomination that I fear and balances that serve to preserve for years, decades even, and where he is threatens the fundamental rights and them should not be sacrificed to supposed to be the ultimate check and liberties of all Americans, now and for threats of terrorism or to the expand- balance and guardian of our rights. To generations to come. One need only ing power of the Government. Security say that by opposing him is smearing look to the White House to see the and liberty are not mutually exclusive him, that is not so. practical effects of such an erosion of values in America. We should have Senator SPECTER and I held a fair and those rights and liberties. This Presi- both, and we can have both, so long as open hearing on him. Democrats had dent is prone to unilateralism and as- we have adequate checks and balances substantive and probing questions to sertions of Executive power that ex- and with the extra effort it takes to try to learn more about Judge Alito, tend all the way to illegal spying on chart the right course to preserve our and some Republicans did the same. Americans. liberties as we preserve our security. These complaints about the treatment This President is in the midst of a We are constantly reminded of what of Judge Alito ring hollow after Presi- radical realignment of the powers of Benjamin Franklin said: People who dent Bush was forced by an extreme the Government and its intrusiveness give up their liberties for security de- faction of his own Republican Party to into the private lives of all Americans, serve neither. The terrorists win if withdraw his first choice for the va- Republicans and Democrats. Frankly, they frighten us into sacrificing our

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00013 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S48 CONGRESSIONAL RECORD — SENATE January 25, 2006 freedoms—something I said in the days monitor going to Americans—thou- whether to authorize the search and following 9/11, and I believe it just as sands? Interesting. So how many peo- the extent of the search to be per- strongly today. ple have been arrested because of those mitted. The officer’s affidavit and the Just after 9/11, I joined with Repub- thousands? Two thousand people? Fif- warrant are not mirror images of each licans and Democrats—I was at that teen hundred people? One thousand? other. The magistrate is not a rubber time chairman of the Judiciary Com- Five hundred? Four hundred? Three stamp. The role of the magistrate in mittee, in round-the-clock efforts to hundred? Thirteen? Seven? Five, three, issuing warrants, a role Judge Alito update and adapt our law enforcement four, two, one? Or none? has too easily cast aside on the bench, powers, and we did. The law became A central question, therefore, during is a crucial check in maintaining the known as the USA PATRIOT Act. It is the hearings of this nomination was right balance so that all Americans can obvious they missed a lot of the signals whether Judge Alito would serve as an have both security and liberty. that were out there. It is obvious they effective constitutional check on the It is worth taking a few moments to had ignored the evidence that was be- Presidency. Preventing Government in- recount the facts of these cases, be- fore them that might have stopped the trusions into the personal privacy and cause I am concerned that Judge Alito terrorists from striking us, but we freedoms of Americans is one of the has too little regard for the con- didn’t make those accusations, we hallmarks of the Supreme Court. They sequences arising from allowing these didn’t say then—let’s find out all the are not supposed to be in the pocket of kinds of invasive searches beyond those things you did wrong that allowed us any administration. After all, this Sen- authorized by warrants. to be hit on your watch. Instead, dur- ate, when it was overwhelmingly Dem- In the Doe case, the 10-year-old girl ing those days, we asked the Bush ad- ocrat, under Democratic control—one and her mother were subjected to what ministration, what do you need, tell us of the most popular Democrats in my the Third Circuit termed an ‘‘intru- what you need so it doesn’t happen lifetime was President Franklin Roo- sive’’ strip search, even though they again, whether it is on your watch or sevelt. When he wanted to pack the Su- were not suspected of nor charged with anybody else’s. preme Court, when he wanted to ma- any wrongdoing. The warrant that the In answering that question, they nipulate the Court, it was the Demo- Government agents had obtained from never asked us to amend the Foreign a judicial officer authorized a search Intelligence Surveillance Act to ac- crats who stood up and said no because for a man living at a certain address. commodate spying on Americans they they felt the Court should be a check Yet when they arrived at the address now say they will undertake, even and balance. Here there is no assurance they encountered only the 10-year-old though the law doesn’t allow it. The that Judge Alito will serve as an effec- and her mother and proceeded to strip law does contain an expressed reserva- tive check and balance on Government search them. There was no contention tion for the 15 days following a declara- intrusions into the lives of Americans. In fact, his record suggests otherwise. that they posed a risk to the agents. tion of war. But neither Attorney Gen- Similarly, in Baker v. Monroe Town- eral Ashcroft nor anyone else in the We know that Samuel Alito sought ship, a mother and her three teen-aged Bush administration at that time or to justify absolute immunity for Presi- children were detained and searched as any time afterward sought congres- dent Nixon’s Attorney General John they arrived at the home of the moth- sional authorization for this illegal Mitchell from lawsuits for wiretapping er’s adult son. The woman and her NSA spying program. Americans, among other violations of Actually, Attorney General Gonzales their privacy. He was asking for immu- teen-aged children did not live at the admitted in a recent press conference nity even if the Attorney General acted house, were not suspected of any that the Bush administration did not willfully to violate people’s rights. wrongdoing, were not named in the seek legal authorization for this kind This is the man who is going to be a warrant, and were not even inside the of spying on Americans because ‘‘it was check and balance on our rights? premises when the officers arrived on not something we could likely get.’’ We We know that as a judge, Samuel the scene. They were nevertheless all don’t know; he never asked. But con- Alito was willing to go further than ordered at gunpoint to lie on the sider that damning admission. It is ut- even Michael Chertoff, the former head ground. They were subsequently hand- terly inconsistent with the Bush ad- of the Ashcroft Justice Department’s cuffed, taken into the house, further ministration’s current argument that Criminal Division and the current Sec- detained, and their property and per- Congress authorized warrantless spying retary of the Department of Homeland sons were searched. on Americans, when they now are say- Security, in excusing Government In both cases, the Third Circuit held ing they didn’t ask for it because they agents for searches not authorized by that the Government agents had acted couldn’t get it. They can’t have it both judicial warrants. This is the man who inappropriately and had violated the ways, although Lord knows they are is going to be a check and balance? Fourth Amendment when they con- trying as hard as they can to have it We know Judge Alito would have ex- ducted these invasive searches of inno- both ways. cused a strip search of a 10-year-old cent persons who were not named in The Bush administration’s after-the- girl, even though the search warrant the search warrants. When I asked him fact claims about the breadth of that did not authorize this. This is a man why he, in contrast, looked beyond the 2001 resolution are the latest in a long who is going to be a check and balance? ‘‘four corners’’ of the warrant that was line of manipulations and another af- In both Doe v. Groody and Baker v. actually signed by the magistrate in front to the rule of law, American val- Monroe Township, Judge Alito dis- Doe, Judge Alito replied that the issue ues, and traditions. We have also seen sented and would have allowed invasive was a ‘‘technical’’ one. Repeatedly such overreaching in the Justice De- searches beyond the scope of warrants. when pressed about this case, Judge partment’s twisted interpretation of This is a man who is going to be there Alito insisted that the issue was mere- the torture statute, in the detention of as a check and balance? ly ‘‘technical.’’ suspects without charges, the denial of I was a prosecutor for eight years, The illegal strip search was not access to counsel, and in the and I am keenly aware of the difficul- ‘‘technical’’ for the 10-year-old girl. misapplication of the material witness ties faced by police officers in the Then-Judge Chertoff understood that statute as a sort of general preventive course of their duties. I support vig- this issue is far from technical, but, detention law. Such abuses serve to orous law enforcement tools. But I am rather, embedded in the core protec- harm our national security as well as also mindful of the careful balance tions of our individual privacy and dig- our civil liberties. In fact, sources at that must be struck in order to pre- nity from governmental intrusion. In the FBI reportedly say that much of serve our individual liberties. One of the court’s opinion, rejecting the ra- what was forwarded to them to inves- the most important Fourth Amend- tionale of Judge Alito’s dissent, Judge tigate from the NSA spying program ment protections we have for our pri- Chertoff wrote: ‘‘This is not an arcane was worthless and led to dead ends. vacy is the requirement that a judicial or legalistic distinction, but a dif- That is a dangerous diversion of our in- officer ensure that the Government’s ference that goes to the heart of the vestigative resources. intrusion on citizens’ privacy is based constitutional requirement that When they talk about thousands of on probable cause and that it is reason- judges, and not police, authorize war- al-Qaida conversations they have to able. It is the judge who determines rants.’’

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00014 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S49 Judge Alito tried to find ‘‘technical’’ two cases, they are only part of a preme Court, with nominees selected to ways to excuse the illegality. Judge broader pattern of deference to the enshrine presidential claims of govern- Alito’s dissent relied on the affidavit Government that shows far too little ment power. Our system was designed accompanying the warrant. To the ex- concern for individual liberties and to ensure a balance and to protect tent the affidavit had requested a rights, which find their ultimate pro- against overreaching by any branch. search of ‘‘all occupants’’ of the home, tection in the Supreme Court. A Democratic Senate stood up to one it did so based on a concern about con- Judge Alito’s record on the use of ex- of the most popular and powerful cealment of drugs by ‘‘frequent visitors cessive force is also troubling. It goes Democratic Presidents of all time that purchase [drugs]’’ or by ‘‘persons back at least as far as his time in the when it rejected President Franklin who do not actually reside or own/rent Meese Justice Department. I find par- Roosevelt’s court packing scheme. The the premises’’—not by a 10-year-old ticularly troubling a 1984 memorandum Senate should not be a rubber stamp to girl living in the home. Judge Alito ig- he wrote to the Solicitor General re- this President’s effort to pack the nored this language in the affidavit, in garding a case called Tennessee & court with those who would give him order to misconstrue the affidavit more Memphis Police Department v. Garner. unfettered leeway. I will not lend my broadly and to then substitute it for In a long memo in which he repeatedly support to an effort by this President the magistrate’s warrant. wrote in the first person proclaiming to move the Supreme Court and the Judge Alito’s rationale was that be- his own beliefs, Samuel Alito argued law radically to the right and to re- cause the officers’ initial request was that there were no constitutional prob- move the final check within our de- broad, it could be assumed that the lems with a police officer shooting and mocracy. magistrate intended to grant broader killing an unarmed teenager who was I voted for President Reagan’s nomi- search authority than that set forth in fleeing after apparently stealing $10 nation of Justice Sandra Day O’Con- the warrant. The Supreme Court had from a home. A year later, the Su- nor, for President Reagan’s nomination preme Court ruled 6–3 against Judge specifically rejected this type of rea- of Justice Anthony Kennedy, for Presi- Alito’s position in that case and reiter- soning in the case of Ramirez v. Groh, dent Bush’s nomination of Justice ated the law against use of ‘‘deadly which was decided a month before Souter, and for this President’s recent force’’ if a suspect presents no danger. Judge Alito dissented in Doe. In Groh, nomination of Chief Justice Roberts. I In contrast to Justice O’Connor’s dis- the Supreme Court held a search war- cannot vote for this nomination. sent on federalism grounds, Samuel rant invalid, citing the sharp distinc- At a time when the President is seiz- Alito’s memo makes no mention of the tion the law draws between what is au- ing unprecedented power, the Supreme human tragedy of the events nor did he thorized in a warrant, and what was re- Court needs to act as a check and to think the Constitution even applied quested. Judge Alito went to great provide balance. Based on the hearing since he argued that the unjustified lengths in a futile and hyper-technical and his record, I have no confidence shooting was not technically a ‘‘sei- attempt to distinguish the Supreme that Judge Alito would provide that zure.’’ Most troubling is Judge Alito’s Court’s decision in Groh. statement in his legal memo endorsing crucial check and balance. Similarly, in Baker v. Monroe Town- I see the distinguished senior Senator ‘‘the general principle that the state is ship, Judge Alito saw the facts in the from Massachusetts in the Chamber. I justified in using whatever force is nec- light most favorable to the Govern- am prepared at this point to yield to essary to enforce its laws.’’ I fear that ment, rather than to the mother and the distinguished Senator and former this deference to the Government, her children. That is directly contrary which he has continued on the bench, chairman of the Judiciary Committee to the standard that should be used makes him ill-suited to be an effective and one whose protection of the civil when reviewing an order granting sum- check on the Government or protector liberties of all of us is unparalleled in mary judgment against a party. In his of individual liberties and rights. the history of this body. dissent, Judge Alito found that al- The Supreme Court is the ultimate The PRESIDING OFFICER. The Sen- though the warrant in question did not check and balance in our system. The ator from Massachusetts. describe any persons to be searched, it independence of the Court and its Mr. KENNEDY. Mr. President, I nevertheless was appropriate for offi- members is crucial to our democracy thank my friend and colleague, the cers to search and handcuff a mother and way of life. The Senate should Senator from Vermont. Again, we do and her three teen-aged children as never be allowed to become a many important things in the Judici- they approached a relative’s home. rubberstamp, and neither should the ary Committee, but none are more im- Judge Alito stated in his dissent that Supreme Court. portant than the selection of our Su- even though the mother and her three And so we owe it to the American preme Court Justices. I again thank children were not named in the war- people of today, and the Americans of the Senator from Vermont for his lead- rant and there was no reason to suspect generations to come, to ask and answer ership in ensuring we’re going to have them of any wrongdoing, ‘‘to [his] several essential questions: Can this a fair, open, appropriate, and a prod- mind’’ the warrant had been intended President, or any President, order ille- ding, probing hearing and for the lead- to authorize a search of ‘‘any persons gal spying on Americans? Can this ership he provides for our committee found on the premises.’’ Judge Alito President, or any President, authorize on so many different matters of impor- went so far as to excuse the officers’ torture, in defiance of our criminal tance to the American people. failure to request or obtain a warrant statutes and our international agree- The stakes in this nomination could permitting the search of persons on the ments? Can this President, or any not be higher. This is the vote of a gen- premises as sloppiness. President, defy our laws and Constitu- eration. If confirmed, Judge Alito will The Third Circuit disagreed with tion to hold American citizens in cus- have enormous impact on our basic Judge Alito, holding that because the tody indefinitely without any court re- rights and liberties for decades to search warrant did not authorize the view? Can this President, or any Presi- come. After all, the Supreme Court is search, it was unlawful and in violation dent, choose which laws he will follow the guardian of our most cherished of the Fourth Amendment. The other and which he will not, by quietly writ- rights and freedoms, and they are sym- judges hearing the case found fault ing a side statement when he signs a bolized in the four eloquent words in- with Judge Alito’s willingness to look bill into law? These are some of the scribed above the entrance of the Su- beyond the warrant to excuse the un- most vital questions of our era, and preme Court of the United States: authorized and unlawful searches. In these are among the most vital ques- ‘‘Equal justice under law.’’ Baker, Judge Alito inserted himself tions that confront the Senate in con- Those words are meant to guarantee into the case in an active attempt to sidering this nomination to our highest our courts will be an independent excuse misconduct when the warrant court. Judge Alito’s record, and his re- check on abuses of power by the other did not authorize the Government in- sponses—and his failure to adequately two branches of Government. They are trusion. answer questions about these issues— a commitment that our courts will al- Unfortunately, Doe and Baker are are deeply troubling. ways be a place where the poor and the not outliers in Judge Alito’s record. As No President should be allowed to powerless can stand on equal footing troubling as his dissents are in those pack the courts, and especially the Su- with the wealthy and the privileged.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00015 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S50 CONGRESSIONAL RECORD — SENATE January 25, 2006 Each of us in the Senate has a con- Justice when he told President Jeffer- unitary executive and outlined a strat- stitutional duty to ensure that anyone son he had exceeded his war-making egy for bypassing it. confirmed to the Court will uphold powers under the Constitution. Justice When Judge Alito made that speech, that clear ideal. Robert Jackson was that kind of Jus- he had already been serving as appel- Contrary to what a number of my Re- tice when he told President Truman he late judge for 10 years, and he was de- publican colleagues have argued, the could not misuse the Korean war as an scribing his own view of the Constitu- Senate’s role is not limited to ensuring excuse to take over the Nation’s steel tion. that the nominee is ethical and pos- mills. Chief Justice Warren Burger was Similarly, Judge Alito had written sesses a certain level of legal skill and that kind of Justice when he told earlier that ‘‘the President’s under- professional experience. To end the in- President Nixon to turn over the White standing of a bill should be just as im- quiry there would be a shameful abdi- House tapes on Watergate. Justice San- portant as that of Congress,’’ and that cation of our historic responsibility. dra Day O’Connor was that kind of Jus- Presidents should issue signing state- The selection of a Supreme Court Jus- tice when she told President Bush that ments announcing their own legal in- tice is of great importance to every ‘‘a state of war is not a blank check for terpretations in the hope of influencing man and woman in America because the President when it comes to the the way the courts would construe the the decisions rendered by the Court af- rights of the Nation’s citizens.’’ law. fect their lives every day. Because of We need that kind of Justice on the On Executive power, ‘‘Protective of the enormous authority a successful Court more than ever. It is our duty to the Executive Branch, the issuance of nominee to the High Court will have ensure that only that kind of Justice is interpretative signing statements for decades to come, it is the responsi- confirmed. would have two chief advantages. bility of the Senate to determine what Today, we have a President who be- First, it would increase the power of constitutional values the nominee lieves torture can be an acceptable the executive to shape the law.’’ This is his view. But as Justice Hugo holds before he or she is confirmed. practice despite laws and treaties that Black wrote in the steel seizure case, Has the nominee learned the great explicitly prohibit it. We have a Presi- ‘‘the President’s power to see that the lessons of our Nation’s history? Will dent who claims the power to arrest laws are faithfully executed refutes the the nominee be fair and openminded or American citizens on American soil idea that he is to be a lawmaker. The will his judgments be tainted by rigid and jail them for years without access Constitution limits his functions in the ideology? Is he genuinely committed to to counsel or the courts. We have a lawmaking process to the recom- the principles of equal justice under President who claims he has the au- mending of laws he thinks wise and the law? thority to spy on Americans without The American people will have no vetoing of laws he thinks bad.’’ the court order required by law. This is not just a theoretical case. As second chance to decide whether this The record demonstrates we cannot we all now know, President Bush person should be trusted with such count on Judge Alito to blow the whis- issued such signing statements on a awesome responsibility. As their rep- tle when the President is out of bill that contained Senator MCCAIN’s resentatives, it is our responsibility to bounds. He is a longstanding advocate ban on torture. In that statement, the ask the tough questions and demand of expanding Executive power even at President reserved the right to ignore meaningful answers. the expense of core individual liberties. the McCain requirements and even as- For the Senate to become a One thing is clear: Judge Alito’s view serted that in certain circumstances rubberstamp for the judicial nominees of the balance of powers is inconsistent his actions are beyond the reach of the of any President would be a betrayal of with the Supreme Court’s historic role courts. our sworn duty to the American peo- of enforcing constitutional limits on I think many of us remember that ple. Taking our responsibility seriously Presidential power. meeting Senator MCCAIN had with the and doing the job we were sent here to His consistent advocacy of what he President down in the White House, do is not being partisan, as some Re- calls the gospel of the unitary execu- and the Senator from Arizona thanked publicans have charged. In fact, it is tive is troubling. As Steven Calabresi, the President for working out the lan- those Republicans who are being par- one of the originators of the unitary guage that would be included in the tisan by defending a nominee’s right to executive theory, has said, ‘‘The prac- Defense appropriations bill and the remain silent when Senators ask him tical consequence of this theory is dra- President thanked him for his help and highly relevant questions about his matic: It renders unconstitutional assistance in working that out. They constitutional values. To ask a nomi- independent agencies and counsels to both shook hands. This picture was on nee for a candid statement of his cur- the extent that they exercise discre- all three networks that night. rent belief about what a provision of tionary executive power.’’ Four or five days later, the President the Constitution means is not asking But this bizarre theory goes much signed the bill, and he issued an execu- for a guarantee of how he will rule in further. Its supporters concede that tive signing statement that said he the future. It is every bit as appro- without the unitary executive as a continued to retain all of his constitu- priate as reading a Law Review article foundation, the Bush administration tional power, and that he was effec- or a case he wrote last year or a speech cannot even hope to justify its con- tively taking any question of his Exec- he gave as a judge. stitutional abuses in the name of fight- utive power out of the hands of any Unfortunately, on issue after issue, ing terrorism. courts in this country. That is a com- instead of answering candidly, Judge Judge Alito refused to discuss his plete reversal to what was agreed to, a Alito merely recited the existing law current view of the constitutional lim- complete reversal to what was said, a but never disclosed his view of major its on Presidential power. But in a complete reversal to the understanding constitutional issues. That is a dis- speech Judge Alito gave in 2004 to the of the Senator from Arizona. The Sen- service to the American people, and Federalist Society, he stated that he ator from Arizona has spoken about it. Senators on both sides of the aisle believed ‘‘the theory of the unitary ex- That is Executive power. should find his evasiveness unaccept- ecutive best captures the meaning of We learned in high school there are able. The confirmation process should the Constitution’s text and structure.’’ two branches of Government, the not be reduced to a game of hide the Under this radical view, all current House and the Senate. They pass the ball. The stakes for our country are too independent agencies would be subject law, the President signs it. It is the high. to the President’s control. This would law. If he vetoes it, it is not the law. One of the most important of all re- destroy the independence of agencies That is not Judge Alito’s view. He be- sponsibilities of the Supreme Court is such as the Federal Election Commis- lieves the President, by signing it, has to enforce constitutional limitations sion, the Securities and Exchange Com- an independent voice and that voice is on Presidential power. A Justice must mission, the Consumer Product Safety a voice that should be listened to and have the courage and the wisdom to Commission, and the Federal Reserve heard, a very bizarre view of Executive speak truth to power, to tell even the Board. authority and Executive power. President he has gone too far. Chief He strongly criticized the Supreme In cases involving claims of privacy Justice John Marshall was that kind of Court’s ruling rejecting the theory of and freedom from unjustified searches

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S51 and seizures under the Bill of Rights, wonder what kind of an opportunity Medicare dollars is spent on diabetes. Judge Alito has consistently deferred the average American is going to have. One out of 10 of all health dollars is to the Government at the expense of Does Judge Alito tip more to the spent on diabetes. It can be dev- core individual rights. In the Doe v. powerful and the entrenched interests astating, leading to blindness, or the Groody case, Judge Alito issued a dis- and the Executive authority? Does he losing of a limb, more often the leg. sent defending the strip search of a 10- give those individuals—women, minori- They need attention and treatment. year-old girl without authorization ties, disabled workers—a fair shake? This is a serious problem that is in- from a warrant. In his majority opin- Judge Alito said, let’s look at the creasing in our society. There was a ion, Michael Chertoff, former head of record. We have looked at the record. systematic failure in terms of pro- the criminal division in the Depart- We looked at primarily the dissents, as viding for that. They thought it should ment of Justice, who is now President pointed out in the previous discussions. go to the jury. Was it or was it not a Bush’s Secretary for Homeland Secu- Ruth Bader Ginsburg, who is consid- factual issue? The lower court said rity, sharply criticized Judge Alito’s ered to be a more progressive figure on they ought to be able to go, but not view as threatening to turn the re- the Court, Judge Bork, a conservative Judge Alito. He reached a different quirement of a search warrant into lit- figure who was proposed for the court, conclusion. tle more than a rubberstamp. This is agreed 91 percent of the time. It is in In case after case, Judge Alito’s deci- not Democrats saying this; this is the dissent that we understand whether sions demonstrate a systematic tilt to- President Bush’s Secretary of Home- an individual and individual rights are ward powerful institutions and against land Security saying this. He was a protected. Those are the indicators. As individuals attempting to vindicate judge on that circuit, criticizing this we have seen from studies—not just their rights. He cites instances where kind of action, extension of a search from the members of the Judiciary he has decided for the little guy, but warrant, because of the inclusion of Committee but by independent they are few and far between. We have some kind of other document into the sources—Knight Ridder, Yale Law an independent duty to evaluate Su- search warrant. We understand what School Study Group, even the Wash- preme Court nominees to determine Michael Chertoff was saying, and Judge ington Post, Cass Sunstein, a distin- whether their confirmation is in the Alito issued the dissent. guished authority and thoughtful indi- best interests of our Nation. That is In Mellott v. Heemer, Judge Alito re- vidual about constitutional law—all the test. It is a test with which Judge ported it was reasonable for marshals have reached a very similar conclusion Alito himself seems to agree. He said to pump a sawed-off shotgun at a fam- that I have outlined here. We will hear we should look at his record and decide ily sitting in their living room. The on the other side: Well, they are only whether he should be confirmed. I have family committed no crime. Seven finding a few cases. We have suggested done so. I have compared the chal- marshals had detained and terrorized a and included in the record of the Judi- lenges the Court will face in the future family and friends, ransacked their ciary Committee this happens to be the with Judge Alito’s record and I cannot home while carrying out an unresisted prevailing position of the nominee. support his nomination. civil eviction. Yet Judge Alito’s deci- In another case, a jury ruled a In this new century, the Court will sion meant the family never got a trial woman had provided enough evidence undoubtedly consider sweeping new before a jury of their peers. to show that she had wrongly lost her claims to expand Executive power at Judge Alito’s record in cases involv- job because of sex discrimination. Ten the expense of core individual rights, ing civil and individual rights shows a members of the Third Circuit who including detention of Americans on judge who repeatedly rules against in- heard the case on appeal agreed. Only American soil without access to coun- dividuals seeking justices for wrongs Judge Alito argued that she had not sel or the court, and eavesdropping on by the powerful. In Bray v. Marriott provided adequate proof of discrimina- Americans in violation of Federal law. Hotels, a hotel worker claimed she was tion. Who is out of step? Who is out of The Court will decide new issues in denied a promotion because she was an step? Who is out of the mainstream? America’s struggle against prejudice African American. The Third Circuit In the Riley v. Taylor case, Judge and discrimination. It must remain a held she was entitled to a trial because Alito dissented from a ruling prohib- fair and impartial decisionmaker for the employer falsely stated she was un- iting the removal of African-American ordinary Americans seeking justice. qualified and had evaluated her quali- jurors because of their race. It is unbe- Justice Alito’s record shows he fications differently compared to White lievable in today’s America, in a case should not be entrusted with these applicants. Judge Alito would have de- involving a minority defendant, that vital decisions facing our Nation’s nied her the chance to prove her case. he was willing to ignore the over- Court, and I urge my colleagues to join His colleagues on the court—not the whelming evidence that the Govern- me in opposing Judge Alito’s nomina- Democrats on the committee—his col- ment insisted on an all-White jury for tion. leagues on the court wrote that his dis- a Black defendant. He found no prob- The PRESIDING OFFICER. The Sen- sent would have eviscerated key provi- lem with that and with their inclusion ator from Illinois. sions of the landmark Civil Rights Act for the death penalty. Eventually, that Mr. DURBIN. Thank you, Mr. Presi- of 1964. case was overturned, as it should have dent. I thank my colleague from the His record in other areas of civil been. What was going on in the mind? Commonwealth of Massachusetts for rights is also troubling. In the case in We talk of equal justice under law. We his statement. which a disabled person sought phys- see what has happened to individuals. Those who are following this de- ical access to a medical school under We see what has happened in this ex- bate—my colleagues and those in the the Rehabilitation Act of 1973, the tremely important judicial proceeding. audience—should know this is a his- court’s majority wrote that few, if any, Many of Judge Alito’s other decisions toric moment in the Senate. It is rare Rehabilitation Act cases would survive demonstrate a similar tendency that Members of the Senate are given if Judge Alito’s view prevailed. That is against the individual. In Rouse v. an opportunity to review a Justice to the majority, not Members of the Plantier, a group of diabetic inmates the Supreme Court. It has been 11 Democratic Party. That is the major- sued prison officials for being delib- years. Recently, we have had two. ity of the court members, looking at erately insensitive to medical needs. Chief Justice John Roberts came before his view. The trial court held there was enough the Senate, and today we consider the There it is—issues on race, issues on evidence for the jury to decide whether nomination of Judge Sam Alito to fill disability, individual rights and lib- the inmates’ constitutional rights had the vacancy of Sandra Day O’Connor erties, those individuals, farmers, and been violated. Judge Alito refused to on the Supreme Court. others in a home involving a civil ac- allow the jury to decide whether the I take this very seriously. As Senator tion, who committed no crime, where Government was responsible for a KENNEDY said yesterday in another marshals used gestapo-like tactics. broad systematic failure to provide the meeting: Next to a vote on war, there They were denied an opportunity for a necessary medical group. These in- is nothing more serious than this deci- court to give a hearing. Judge Alito mates had diabetes. We know the dan- sion. The man or woman whom we said no. That is why many Members gers of diabetes. One out of four of our choose to serve on the Supreme Court

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00017 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S52 CONGRESSIONAL RECORD — SENATE January 25, 2006 is there for the rest of their natural HMO denied them treatment, decided 5 would say about Sam Alito. They had life. For 10, 20, or 30 years, that person to 4; reaffirming the Federal Govern- rejected Harriet Miers. They gave Har- will be making critical decisions on the ment’s authority to protect the envi- riet Miers the back of a hand. They highest Court in the land, the Court ronment that we live in, a 5-to-4 case; gave Sam Alito their blessing. They which is the refuge for our freedoms and reaffirming America’s time-hon- said: He is fine. We support him. He is and our liberties. ored principle of the separation of the right person for the job. That Court, across the street from church and State, 5 to 4. Now, does that raise a question in this Capitol Building, has made mo- In every single case, the fifth vote your mind as to whether Judge Alito mentous and historic decisions which was Sandra Day O’Connor. And now she will come to this position without an have literally changed America. In the leaves, after many years of service to agenda, without professing some alle- 1950s, nine members of the Supreme America, with an extraordinary record giance to extreme views these organi- Court made the decision that we would of public service. Many of us are listen- zations hold? Will it raise the question no longer have segregated public edu- ing, watching, and reading to make in the minds of many of us? cation in America. It was not the lead- certain the person replacing her can And then, during the course of his ership of a President or the Congress, rise to the challenge, and not only the nomination, there emerged a docu- but it was the Court. challenge of serving in the Court but ment, a document he had personally Similarly, that same Court, in the the challenge of fighting for the same written. In 1985, Sam Alito wrote a doc- 1960s, established a new right under our values she fought for. Sandra Day ument to the Justice Department of Constitution, a word which you cannot O’Connor came to the Supreme Court the Reagan administration, then head- find within the confines of that docu- with the support of Barry Goldwater, ed by Attorney General Ed Meese, ment, the right of privacy. That the preeminent conservative in Amer- looking for a job. In the course of that Court—nine Justices across the ican politics in the 1960s and beyond. document he was supposed to lay out street—said that when it came to the Many expected her to be of the same why he, Sam Alito, was in step with most personal and basic decisions in stripe, that she would follow his basic the Reagan administration’s thinking our lives, they were reserved to us as philosophy. In many ways, she did be- and philosophy. And, in 1985, that individuals, not to the Government. cause if you measure Barry Gold- memo was explicit. It went through That was not a finding by a President. water’s contribution to American poli- page after page of the things he felt It was not a law passed by Congress. It tics, you will find him starting in a qualified him to serve in that adminis- was a decision of the Supreme Court. very conservative position and, over tration. And time and again, whether we are the years, moving to a more libertarian Some have said: Wait a minute, that speaking of the rights of minorities in position, a position that valued per- was 20 years ago. People change. And it America, women in America, those who sonal freedom more. is true. I have changed my positions on are disabled, that Court and the nine The same thing happened to Sandra some issues. It is well known and docu- Justices who sit on the bench make de- Day O’Connor. Starting as a conserv- mented. It happens. But to say it was a cisions which change America for gen- ative, over the years she moved toward document given without conviction erations to come. That is why the se- a more libertarian position, a position overlooks the obvious. Sam Alito, at lection of a nominee to the Supreme which, in many instances, was critical that moment in 1985, was 10 years out Court is so important and so historic. for protecting our basic rights. of Yale Law School. He had served in It is made even more so by the fact It has been said she was the most im- the military. He served a year as a that the vacancy we are filling on the portant woman in America. And it is clerk to a Federal judge. He had served Supreme Court is not another run-of- easy to see why. Time and again, San- 4 years as an assistant U.S. attorney, the-mill vacancy, it is the vacancy of dra Day O’Connor was the crucial fifth prosecuting cases, and 4 years as an as- Sandra Day O’Connor, the first woman vote on civil rights, human rights, sistant to the Solicitor General of the ever appointed to the U.S. Supreme women’s rights, and workers’ rights. United States. Court. That is why we have looked so closely So rather than suggesting that docu- As important as her gender is, the and so carefully at Judge Sam Alito. ment reflected the casual observations fact is, she brought unique leadership And there is more. His was not the of someone looking for a job at a very to the Court. You see, over the last 10 first name to be suggested by the early age, I think that document told years, there have been 193 decisions in President for this vacancy. The first us much more. that Court that were decided 5 to 4. name was the President’s personal at- What it told us was that he ques- One Justice’s vote made the difference. torney in the White House, Harriet tioned some very fundamental things If one Justice had voted the other way, Miers, a person he obviously respects about law in America. In his essay, he the decision would have been the oppo- very much. Do you recall what hap- wrote that ‘‘the Constitution does not site—193 times in 10 years. And in 148 of pened to her nomination? Her name protect a right to an abortion.’’ He said 193 cases, Justice Sandra Day O’Connor was brought forward, and there was a he was proud of his work in the Justice was the deciding vote. firestorm of criticism about Harriet Department, fighting abortion rights So we are not only faced with a his- Miers’ nomination. Did it come from and affirmative action. He wrote that toric and constitutional challenge in the Democrats? Did it come from lib- he was skeptical of Warren court deci- filling this vacancy, we have a special erals? No. It came from the other side. sions which embraced the principle of responsibility because the vacancy Time and again, the most rightwing on ‘‘one person, one vote’’ and the separa- that is being filled is a vacancy that the American political scene said Har- tion of church and state. And he point- will tip the scales of justice in America riet Miers was not acceptable, and they ed with pride to his membership in two one way or the other way. raised questions about whether she very conservative organizations: The What kind of cases did Sandra Day could be trusted to be on the Supreme Federalist Society and the Concerned O’Connor provide the decisive vote on? Court to advance their rightwing agen- Alumni of Princeton. Cases which safeguarded Americans’ da. His listing of the Concerned Alumni right to privacy in the area of repro- Their opposition to her nomination of Princeton, of which he was a grad- ductive freedom, the rights of women; grew to a level and reached a point peo- uate, was troubling because that orga- cases that required courtrooms to be ple did not think would happen. Presi- nization was once dedicated to estab- accessible to people with disabilities, dent Bush withdrew Harriet Miers’ lishing a quota at Princeton that each decided 5 to 4; preserving the rights of name as a nominee. In the wake of year they would accept no fewer than universities to use affirmative action withdrawing Harriet Miers’ name, in 800 men, and the Concerned Alumni of programs, decided 5 to 4; affirming the sailed Judge Sam Alito—not the best Princeton wanted to stop what they right of State legislatures to protect circumstance for someone who is com- considered to be the infiltration of the the voting rights of minorities in ing to this position arguing they have Princeton student body by women and America, decided 5 to 4; upholding no political agenda. minorities. Some of the things they State laws giving individuals the right Well, we looked carefully to see what wrote and said were outrageous. In to a second doctor’s opinion if their the same rightwing organizations fairness, Judge Alito at the hearing

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S53 said he would not associate himself was right; that is not something we ac- tecting our basic privacy and personal with their remarks, but it is inter- cept in America; we are going to send freedoms. He will tip the balance in esting that he would identify this orga- this case back to be retried by a jury of favor of Presidential power, even when nization as one of his memberships this defendant’s peers. They saw the it violates the law. He will tip the bal- that would qualify him to serve in the importance of a justice system that is ance when it comes to recognizing the Justice Department. blind to race. rights of the powerful over the power- As an examination of Judge Alito’s But not Judge Alito. He said estab- less. He will tip the balance on work- 15-year track record on the U.S. Court lishing the fact that four murder trials ers’ rights and civil rights and human of Appeals evidences, there are other came before the same prosecutor with rights and women’s rights and pro- elements that suggest a very conserv- all White juries is like establishing tecting the environment. That is why I ative judge. University of Chicago law that five out of six of the last Presi- cannot support his nomination. professor Cass Sunstein examined his dents were left handed. I thought that I call on the President to send to us dissenting opinions over 15 years and was a rather casual dismissal of an im- a conservative like Sandra Day O’Con- concluded: portant case and an important prin- nor. She was a woman who dem- When they touch on issues that split peo- ciple. When I asked Judge Alito about onstrated, in a lifetime of service, that ple along political lines, Alito’s dissents it, he seemed more committed to the she understands the values of this show a remarkable pattern: They are almost principles of statistics than the prin- country and committed her life to pro- uniformly conservative. ciples of racial justice which the ma- tecting them. I am sorry that Judge People say to me: If he was found jority in his court applied. Sam Alito does not live up to her ‘‘well qualified’’ by the American Bar Another case involved an individual standard. Association, what is wrong with that? who was the subject of harassment in I yield the floor. Why don’t you just go ahead and ap- the workplace. This person had been The PRESIDING OFFICER (Ms. MUR- prove the man? The bar association is assaulted by fellow employees. He was KOWSKI). The Senator from Texas. an important part of this process, but a mentally retarded individual. He was Mr. CORNYN. Madam President, be- they only look to three main things. so brutally assaulted in a physical fore I make the remarks I have pre- They look to whether he has legal manner that I did not read into the pared about Judge Alito, I extend my skills. That is important. They look to record of the hearing, nor will I today, gratitude to members of my staff who, whether he is an honest person. That is the details. Trust me, they are grue- as a member of the Judiciary Com- equally important. And they look to some and grisly. His case was dismissed mittee, have been so instrumental in his temperament. They said he is well by a trial court, and it came before my ability to prepare for this con- qualified by those three standards. But Judge Alito to decide whether to give firmation process. the American Bar Association doesn’t him a chance to take his case to a jury. In particular, I note the contribution look to his values. It doesn’t look to Judge Alito said no, the man should of Brian Fitzpatrick, who has been a his philosophy, how he is likely to rule not have a day in court. Why? Not be- member of my staff and worked on in critical cases for America. cause he didn’t have a case to argue, both the Roberts and Alito Supreme I wanted to ask Judge Alito at the but Judge Alito believed that his attor- Court nominations. He is leaving next hearing: Where is your heart? What do ney had written a poorly prepared legal week after Judge Alito is confirmed to you feel about the power you will have document before his court. Was there the U.S. Supreme Court, as he will be, as a Supreme Court Justice? I asked justice in that decision? Did the crush- to go teach at NYU, New York Univer- him an obvious question in the lead-up ing hand of fate come down on an indi- sity. NYU’s gain is our loss. I certainly to my inquiry: I asked if he was a fan vidual who was looking for a day in wish Brian well in his new career. I put of Bruce Springsteen. You might won- court who happened to have an attor- him on notice that the next vacancy der why that would come up in this ney without the appropriate skills? that President Bush gets to the U.S. case. Judge Alito is from New Jersey, When it came to health and safety Supreme Court, I am going to be call- as is Bruce Springsteen. He said to me questions involving coal mines, a topic ing him and asking him to come back in his answer: we see in the news every day, Judge for another gig. Madam President, I rise today to ex- I am—to some degree. Alito was the sole dissenter in a case as to whether a coal mining operation plain why I intend to vote to confirm That is a qualified answer, but I took would be subject to Federal mine and Judge Alito to the U.S. Supreme Court. it and went on. The reason I raised it safety inspection. He argued in the Those who were just listening to the el- was this: Many people have asked committee hearing that he just read oquent words of the distinguished Bruce Springsteen, Where do you come the law a little differently. Democratic whip might wonder how in up with the stories in your songs? How What we find in all these cases is a the world anybody could ever vote for do you talk about all these people who consistent pattern. Time and again, it this nominee; how Judge Alito survived are struggling in America? He an- is the poor person, the dispossessed for the last 15 years serving as a mem- swered: person, the one who is powerless who ber of the circuit court of appeals in I have a familiarity with the crushing hand has finally made it to his court, who is Philadelphia without getting im- of fate. shown the door. That troubles me. It peached; how in the world his former The reason I asked that question was troubles me because what we are look- law clerks, the people who have worked to go to some specific cases Judge ing for in a Justice is wisdom. most closely with the judge, and who Alito had decided and ask him about If you are a student of the Bible—and happened to be Democrats and have a the crushing hand of fate. Senator KEN- I am not—you know this: The person different political view, a different NEDY just mentioned one of them. who embodies the virtue of wisdom was world view, a different agenda, could An African American, charged with a man named Solomon. In the Bible, come in as they did before the Senate murder, facing the possibility of the the Lord came to Solomon and said: I Judiciary Committee and extol the death penalty, argues on appeal that will give you a gift. What gift would qualifications and temperament of this his verdict was unfair because the pros- you have? And Solomon said: I want a fine public servant and this fine human ecutor went out of his way to exclude caring heart. He didn’t ask for riches being; or how, possibly, in listening to every African American from the jury or knowledge; he asked for a caring the criticisms we have heard of this so that it was an all-White jury judging heart. This wise man wanted that as nominee and of the President for hav- a Black man. He presented his evidence part of who he was. ing the temerity to nominate him, you that in three other murder trials, one That is what I looked for with Judge can reconcile that impression with the involving an African American, the Alito. Sadly, in case after case, I fact that we heard on the Senate Judi- other two White defendants, the pros- couldn’t find it. I worry that if Judge ciary Committee virtually all of the ecutor had done the same thing—kept Alito goes to the Highest Court in the current and former members of the the Blacks off the jury systematically. land for a lifetime appointment, he will Third Circuit Court of Appeals who The Third Circuit Court on which tip the balance of the scales of justice. have worked closely with Judge Alito Judge Alito served said that defendant He will tip the balance against pro- day in and day out, who to a person

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S54 CONGRESSIONAL RECORD — SENATE January 25, 2006 came in and said this is exactly the equal branches of Government—execu- preme Court radically to the right. But kind of judge we would want and we tive, legislative, and judicial. And each in order to believe this or support this think the American people would have official within that each branch is ac- supposed theory, they have to radically a right to expect, and urged us to fa- countable to the people for the power rewrite history. It requires them to vorably vote on his confirmation. they exercise and is delegated to them paint Justice O’Connor as some sort of It is clear to me, though, during the by the Constitution and laws of the liberal. course of the confirmation process, country. But the truth is far different. For ex- that the reason I support Judge Alito But to show how misplaced this criti- ample, according to the Harvard Law his philosophy of judicial restraint is cism is, according to Judge Alito’s op- Review, over the last decade, the Jus- exactly the reason his detractors op- ponents, the father of the unitary exec- tice on the Court with whom Justice pose his nomination. The sad fact is utive theory is Justice Scalia on the O’Connor agreed most frequently—over that there are some in this country U.S. Supreme Court. The problem they 80 percent of the time—was former who don’t want judges who respect the have is that the facts show that Justice Chief Justice William Rehnquist. legislative choices made by the Amer- Scalia does not favor an all-powerful I think we will all acknowledge that ican people. Rather, they want judges President. No one does. We know this Chief Justice Rehnquist was no liberal. who will substitute their own personal in particular from the decision he Yet Sandra Day O’Connor and Chief ideological or political agenda for wrote in the Hamdi case 2 years ago. Justice William Rehnquist agreed with those choices made in the Halls of Con- This was a case where the detention each other more than 80 percent of the gress by the elected representatives of status of some of the terrorists who are time. the American people. kept at Guantanamo Bay was being re- Indeed, in subject matter after sub- There are some in this country who viewed by the Supreme Court. In that ject matter, Justice O’Connor sees eye have views that are so out of the main- case, in the opinion written by Justice to eye with what Judge Alito has dem- stream that they don’t have any Sandra Day O’Connor, the Supreme onstrated on the bench and said how he chance to persuade the American peo- Court held that the President had the will approach his job on the Supreme ple to accept them. For example, there power as Commander in Chief, during a Court. Both believe in federalism, that are some who want to end traditional time of war, to indefinitely detain even Congress is not above the law and its marriage between one man and one American citizens who were suspected powers are not unlimited but, rather, woman. There are some who want to of terrorism without filing criminal they are, under the Constitution, lim- continue the barbaric practice of par- charges against them. Justice Scalia, ited and enumerated, and that some tial-birth abortion. Some even want to perhaps one of the most conservative powers are still reserved to the States abolish the Pledge of Allegiance. But members of the Court, dissented from and the people. they know if they brought some of that, saying the President had no such That is not an out-of-the-mainstream those issues to the floor of the Senate power; that it was unconstitutional for view. Justice O’Connor shares that and to the floor of the U.S. House of him to do so. His views did not carry view. The Founders of this country Representatives, these are not the the day, but indeed of all of the Jus- shared that view, and I believe the views that would be expressed through tices, Justice Scalia, the father of this American people believe that the peo- the elected representatives of the unitary executive theory, was least ple have retained some rights and the American people because the American deferential to the powers of the Presi- States have retained some rights people themselves don’t agree with dent. Judge Alito doesn’t believe the against an all-powerful Federal Gov- these far left, out-of-the-mainstream President’s powers are unlimited any ernment. Judge Alito happens to be- views. more than Justice Scalia does. lieve that as well. For these advocates of these out-of- Now, one of the witnesses we had dur- Justice O’Connor and Judge Alito the-mainstream views, the only way ing the course of the hearing—I men- both struck down some affirmative ac- they will ever see their views enacted tioned several former and current tion programs that resulted in reverse into law is to circumvent the American members of the Third Circuit Court of discrimination based on strict numer- people and pack the courts with judges Appeals. One of them who testified in- ical quotas. And yes, both have even who will impose their agenda on the terestingly and relevant to the point criticized Roe v. Wade. The truth is American people. They believe in judi- was Judge John Gibbons who has since that if Justice O’Connor were the cial activism because judicial activism left the judiciary and has a law prac- nominee today, she would meet with is all they have. tice where he represents the detainees just as much opposition as Judge Alito Of course, Judge Alito’s detractors at Guantanamo Bay. He said: has. The confirmation process has sim- will never say they believe in judicial The committee members should not think ply become a no-win situation. activism. They know the American for a moment that I support Judge Alito’s Another favorite pretext of the oppo- people don’t favor it. They know the nomination because I am a dedicated de- nents of this nominee is that he is American people believe fervently in fender of the Bush administration. On the somehow biased against the mythical democracy and self-determination, and contrary, I and my firm have been litigating little guy. That he always rules against with that administration over its treatment the little guy in favor of the big guy. they don’t want unelected judges mak- of detainees held at Guantanamo Bay. ing the laws of this country. So Judge The basis for this pretext is a litany of He said: Alito’s detractors are forced to oppose cases his opponents cite where Judge his nomination on the basis of certain I am confident that as an able legal scholar Alito has sided against a sympathetic and a fair-minded justice, Judge Alito will pretexts. They are forced to grasp for give the arguments, legal and factual, that plaintiff. This pretext suffers from a any means they can to try to defeat his may be presented on behalf of our clients number of flaws. nomination. As one of Judge Alito’s de- careful and thoughtful consideration, with- The first flaw is a selective reading of tractors put it, ‘‘you name it, we will out any predisposition in favor of the posi- Judge Alito’s record. Judge Alito has do it’’ to defeat Judge Alito. tion of the executive branch. been a judge for 15 years. He has de- One of their favorite pretexts—and That is another example of how those cided plenty of cases in favor of con- we have heard some of it this morn- who know this man best simply believe sumers, medical malpractice victims, ing—is that Judge Alito embraces this that he will be a fair-minded judge and employment discrimination victims, view of an omnipotent executive he will not be unduly deferential to the and other plaintiffs. In other words, he branch; that he believes the President’s President, the executive branch, or has decided plenty of cases for the lit- powers are without limitation. This anyone else for that matter, and that tle guy. But his opponents ignore all of pretext is a complete canard. It is he will faithfully discharge his respon- these cases and focus only on the cases based on the claim that Judge Alito sibilities under the Constitution and where he has decided against a sympa- once endorsed an academic theory laws. thetic plaintiff. Anyone who has looked called the unitary executive. But a uni- Another favorite pretext of the oppo- at his entire record has found the claim tary executive is not the same as an nents of this nomination is that as a of bias to be completely without merit, all-powerful executive. It is, after all, a replacement for Justice O’Connor, this indeed, including the Washington Post. theory that says there are three co- nominee, Judge Alito, will shift the Su- The Washington Post did an analysis of

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He believes more difficult for any President to be Moreover, any notion that Judge that no one is above the law—not the able to recruit from the private sector Alito has a special bias against victims President, not the Congress, not even qualified men and women who have the of racial discrimination is as false as it the little guy. That is why Lady Jus- experience, the personality, the in- is demeaning. The people who know tice has always been blindfolded. sight, the leadership, and the ability to Judge Alito best testified at length America is a nation of laws, not of serve our Government. That might be that he applies the law in a fair and men and women, not of little guys, not in a variety of different fields. That is evenhanded manner without fear or of big guys, but a nation of laws. It why I think it is important that we as favor. Indeed, perhaps most instructive should not matter who you are, how Senators change and stop this practice is the evidence from the late Judge you pronounce your last name, what of holding up nominees and not accord- Leon Higginbotham. He has passed on, your country of origin is, your race, or ing them the fairness of an up-or-down but his comments are part of the any other extraneous consideration vote. record. when you enter the halls of justice. We With John Roberts to be Chief Jus- Judge Higginbotham was something are all guaranteed, under the words tice of the Supreme Court, we allowed of a civil rights hero, as many people that are etched over the marble leading a lot of commentary and a vote. I hope know. He was president of the Philadel- into the Supreme Court, ‘‘equal justice the same will occur for Judge Alito. phia chapter of the NAACP, was award- under the law.’’ There have been indications from ed the Presidential Medal of Freedom, Everything in his record shows that those on the other side of the aisle that and was appointed to the U.S. Civil these extraneous considerations don’t they are reserving the right to fili- Rights Commission by President Clin- matter to Judge Alito. This is why peo- buster, or require a 60-vote majority to ton. This is what he had to say about ple of good faith from all across the po- have a vote on the confirmation of Judge Alito: litical spectrum have testified and Judge Alito. My reaction is if they Sam Alito is my favorite judge to sit with given testimonials in support of his move forward with such a filibuster, on this court. He is a wonderful judge and a work as a judge and on behalf of his ‘‘make my day.’’ We will enjoy pulling terrific human being. Sam Alito is my kind nomination to the Supreme Court. This the constitutional trigger to allow of conservative. He is intellectually honest. is also why I believe he will be con- Judge Alito a fair or up-or-down vote. He doesn’t have an agenda. He is not an ideo- firmed by the Senate. I don’t think it is too much to ask logue. Madam President, I could not be Senators to come here when the nomi- Judge Higginbotham, a hero to the happier to throw my support behind nation is called forth to get off these civil rights movement in this country, this good man, this good judge, and cushy seats, stand up straight, and would never have made such glowing this public servant. vote yes or vote no. That is a matter of remarks if he believed for an instant I yield the floor. fairness. It is also our constitutional that Sam Alito was guilty of some of The PRESIDING OFFICER. The Sen- responsibility in advise and consent. the false charges being made against ator from Virginia. When analyzing or determining him. Mr. ALLEN. Madam President, I rise whether I am going to support a par- More fundamentally, however, the to echo and add to the remarks of the ticular judicial nominee, what matters claims that Judge Alito is biased Senator from Texas, Mr. CORNYN. On most to me for these lifetime appoint- against the little guy are based on a this first day of debate, I rise to ex- ments is trying to discern that nomi- misconception of how judges are sup- press my strong support for the con- nee’s judicial philosophy. Trying to de- posed to behave. Judges are not sup- firmation of Judge Samuel Alito to be termine whether they believe what posed to decide cases on sympathy. a Justice on the Supreme Court of the they are saying as to what they think Just as we ask jurors when they come United States of America. the proper role of a judge will be. into our courtrooms all across this There has been much discussion, ad- We have seen through the years that great country to put aside their sym- vertising on the radio, in newspapers, certain individuals get appointed for a pathies, biases, and prejudices and de- and on television. There has been com- lifetime appointment, and they end up cide the cases based on the evidence mentary about Judge Alito, and that is being completely different than what they hear in court and the law as given fine. That is the way it should be. Fed- they have said in the hearings, in to them by the judges—and they do it, eral judges are appointed for life. This interviews with the President, or inter- day in and day out, faithfully and to is the only time that the people’s rep- views with the Senators. Past perform- really an exceptional degree—of resentatives—those of us in the Sen- ance is, in my view, usually a reliable course, we expect judges not to decide ate—have an opportunity to scrutinize indicator of future action. cases on sympathy. The kind of argu- an individual who has been nominated In my view, regarding this particular ments we are hearing suggest that for the Federal bench in a lifetime ap- nomination of Judge Alito, the best judges ought to pick out the party they pointment. So that scrutiny is appro- way to determine what kind of Justice like best, the most sympathetic, and priate. I am hopeful that this scrutiny Samuel Alito will be on the Supreme rule in their favor without regard to and this discussion will be of a civil na- Court is to look at his 15 years of serv- the facts and without regard to the ture. Sometimes it has not been, over ices as a circuit court judge. In his law. the last several years in this body. years on the bench, he has embodied One would not know by listening to I do believe, though, that all nomi- the philosophy I like to see in judges. I some of Judge Alito’s opponents that nees who are reported out of a com- believe the proper role of a judge is to he is a fairminded judge. In the Amer- mittee, whether the Judiciary Com- apply the law, not invent the law. ica of his opponents, no plaintiff ever mittee—for that matter, any com- Judges are to uphold the Constitution, loses a case; no entrepreneur ever wins mittee—Foreign Relations, or other not amend it by judicial decree. no matter how frivolous the claim of committees, ought to be accorded the The proper role of a judge is to pro- employment discrimination; police de- fairness of an up-or-down vote at the tect and indeed defend our God-given partments never win a case no matter end of this gauntlet. If you are going to rights, not to create or deny rights out how desperate the claim of a criminal make someone go through all of this, of thin air. They are not to act as a defendant; Government agencies, in- have all these slings and arrows, some legislator. cluding the Environmental Protection relevant, some tangential, and some In Judge Alito’s case, no matter the Agency and the Social Security Admin- completely irrelevant. If they are issue, whether or not they are politi- istration, could never win a case no going to go through all of this, they cally charged issues in the realm of matter how outlandish the request for ought to be accorded the fairness of an electoral politics, he seems, from my Government benefits. In their utopia, up-or-down vote. reading and review, to have followed a

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They should faithfully apply find him guilty by ‘‘ancient associa- sequent decisions or new facts or new the law. They ought to apply the evi- tion.’’ Let me quote from the Wall laws. dence before the court to the law in Street Journal editorial page of that Court decisions have been changed that particular case before the court. date. over the years because they have prov- As he stated in his opening state- They can’t touch him on credentials or his en to be unworkable. The Court has ment before the Judiciary Committee, mastery of jurisprudence, so they’re trying overruled many decisions. Of course, Judge Alito recognized a judge’s only to get him on guilt by ancient association. Brown v. Board of Education over- obligation is to the rule of law. And in Senators TED KENNEDY and CHUCK SCHUMER ruling Plessy v. Ferguson is probably every single case, the judge has to do did their best yesterday to imply that Judge the prime example and illustrates that what the law requires. In my opinion, Alito was racist and sexist by linking the no precedent is untouchable. The Court nominee with the views of some members of that is the essence of the fair adjudica- Concerned Alumni of Princeton, which back should not be required to stick to bad tion of disputes. There is credibility, in the 1970s and 1980s took issue with univer- law—in that case, separate but equal. there is reliability, and there is integ- sity policies on coeducation and affirmative Judges do not run for office. They rity in that approach. Judge Alito has action. cannot and should not make campaign exemplary, scholarly, and experienced Of course, Judge Alito said he didn’t promises that are, in fact, prohibited. qualifications—and especially the prop- agree with any of that. He was con- They are prohibited from doing so by er judicial philosophy—to serve honor- cerned about fair access for our mili- the Code of Judicial Conduct of the ably as a Justice on the Supreme Court tary recruiters on campus. American Bar Association. They also of the United States. The closing lines in the Wall Street should not be judged on the basis of In Judge Alito’s 15 years on the Third Journal editorial stated: statements they made when working Circuit Court of Appeals, he has dem- As for Judge Alito’s prospects, if this irrel- for elected public servants in the legis- onstrated his understanding of the evant arcania is the most his opponents lative or executive branches of Govern- proper role of a judge in our constitu- have, he can start measuring his new judicial ment. They should be judged by their tional system of Government, and will robes. record of service. apply the law fairly and equally. Another comment made by some Again, with Judge Alito, we see a Judge Alito, in my view, genuinely members of the Judiciary Committee person with 15 years of judicial experi- respects the rule of law in our rep- is they don’t have the assurance that ence. We have seen, in too many cases, resentative democracy. In recognition the judge firmly believes in precedent. with the lifetime-appointed Federal of Judge Alito’s outstanding service on They criticize him for apparently hav- judges, a complete disregard for the the Federal bench, the American Bar ing an open mind. will of the people and their elected rep- Association has given him their high- What some Senators choose to do is resentatives who are supposed to be est rating of well qualified. The Amer- not recognize that there are times making the laws reflecting the will and ican Bar Association’s criteria for their where precedent should be overturned the values of the people in particular evaluation are integrity, profes- such as the Court overruling Plessy v. States or maybe the Nation in our rep- sionalism, competence, and judicial Ferguson and Korematsu v. United resentative democracy. temperament. States. People wonder: Why do we care about Let me share with my colleagues Also, as time changes and our coun- the activist judges? Why does judicial what Stephen Tober, the chairman of try develops, the case law that comes philosophy matter? I will go through the American Bar Association Stand- before the Supreme Court also changes, recent decisions by activist judges who ing Committee, had to say. to recognize the advances in tech- forget their role is to apply the law, He said: nology and science. not invent the law. On The Federal Judiciary: ‘‘Needless to In Roe v. Wade, Justice Blackmun In California, certain counties say, to merit an evaluation of well-qualified, recognized that advancements in med- thought it was a good idea to have chil- the nominee must possess professional quali- ical science will impact the trimester dren in schools say the Pledge of Alle- fications and achievements of the highest standard for when the State’s interest giance. When I was Governor of Vir- standing.... We are ultimately persuaded in life begins. ginia, we passed such a law. But some- that Judge Alito has, throughout his 15 years As constitutional jurisprudence one out there in the Ninth Circuit on the Federal Bench, established a record of both proper judicial conduct and even-hand- moves forward, Judge Alito, with his thought, no, we cannot have the Pledge ed application in seeking to do what is fun- understanding that stare decisis is not of Allegiance in public schools in Cali- damentally fair.... His integrity, his pro- an ‘‘inexorable command,’’ makes a fornia because of the words ‘‘under fessional competence and his judicial tem- great deal of sense. We have seen that God.’’ That is an example of judges perament are, indeed, found to be of the throughout the history of our country. completely ignoring the will of the highest standard.’’ There were some comments made people in those regions of California That came from Chairman Tober on during his confirmation process by the and striking down the Pledge of Alle- January 12 of this year. groups objecting to the nomination of giance because of the words ‘‘under Judge Alito also provided to all of us Judge Alito that they disagree with God.’’ This is a ludicrous decision. an indication of his temperament and the conclusion he reached after an We also see judges ignoring the will qualifications during his confirmation independent review of the facts of a of the people in a variety of other hearings, which went on for several particular case. While these groups, ways. They struck down some laws in days and many hours of hearings. He and all Americans, have an important Virginia within the last 2 years be- answered over 700 questions, explaining role in a free society and deserve to cause of international standards. his thought processes, judicial philos- state their view, they also in some Friends, colleagues, we make the laws. ophy, and I think very credibly dispel- cases are distorting the proper role of a We represent the people of this coun- ling some of the misstatements about judge. On the bench, Judge Alito has try. It is our Constitution. It is not the his record of service. not been a partisan activist. To the U.N. constitution or various conglom- Judge Alito was even forced to defend contrary, there have been no sub- erations or what confederations of the statements of others when he was stantive claims that any litigant be- other countries may think our laws questioned about the Concerned Alum- fore Judge Alito did not have a fair and should be. The laws are made by the ni of Princeton. That is a group that impartial hearing of their case. Factors people of this country. apparently Judge Alito joined when he whether a President should be over- A continuing debate has to do with was a member of the Armed Services turned, or modified—there are many parental notification. People in Vir- because he didn’t agree with the way factors, such as the nature of the origi- ginia, when I was Governor, and other

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So power should remain closest to the peo- ible, well-reasoned answers in the con- the laws are passed by various States, ple. firmation hearings. If you look at this there is one in contention dealing with In our system of government, it is es- individual, who has the qualifications, New Hampshire. Federal judges, ignor- sential the people in the States be free the judicial philosophy, the knowledge ing the will of the people in various to experiment in public policy and that of the law, the respect for the law and, States, strike down and allow those Washington, the Federal Government, indeed, the respect for the people, the laws to be overturned. should not dictate policy through the owners of this Government, and those Last year, in the summer, the Su- use of Federal funds in areas reserved of us in the Senate and the House of preme Court got involved in a case that to the States or to the people. Representatives, and other bodies, created a great deal of concern because Opponents of this nomination have Judge Alito is a perfect person to be an the city of New London, CT, the city referenced half a dozen cases out of the Associate Justice on the Supreme council, acting akin to commissars, de- more than 1,500 he has been involved in Court of the United States. I respect- cided they were going to take people’s while serving on the Third Circuit fully urge my colleagues to vote af- homes, the American dream, and con- Court of Appeals. The fact is, no mat- firmatively for Judge Alito to serve demn those homes, take them not for a ter how Judge Alito answered the ques- this country on the Supreme Court. school, not for a road or any such pub- tions posed to him, his detractors I thank you for your attention, lic purpose, but rather they wanted to would continue to oppose his nomina- Madam President. I yield the floor. derive more tax revenue off of that tion. On the particularly important The PRESIDING OFFICER. The Sen- property. This is part of the Bill of charge that he favors an expansive ator from Florida. Rights, the fifth amendment. The Su- view of the Executive power, Judge Mr. MARTINEZ. Madam President, I preme Court, in a very narrow decision, Alito reiterated his view that no also rise today to express my support allowed New London, CT, in the Kelo branch of Government has more power for the confirmation of Judge Samuel case, to take away people’s homes. and that no person in this country, no Alito as an Associate Justice of the This is an example of Supreme Court matter how high or powerful, is above U.S. Supreme Court. Justices, Federal judges, selected and the law; no person in this country is The Constitution demands that the serving for life, amending our Bill of beneath the law. President’s nominees to the Supreme Rights, the Constitution—the Bill of Aside from this very unambiguous Court receive the advice and consent of Rights is the most important part of answer, one can point to a litany of a majority of Senators. The standard all the Constitution—by judicial de- cases where Judge Alito came down to be used is not spelled out in the Con- cree. That is wrong. This is why it is against the authority of the Govern- stitution, but 200 years of tradition of- important we have men and women ment, or for the little guy as some peo- fers a guide. That guide, that standard, serving on the Federal bench that un- ple like to call it. applied to nominees throughout our derstand their role is to apply the law Another criticism of this nomination history, is the very same standard we and not take away our God-given has been that Judge Alito, if con- should apply today to Judge Samuel rights enshrined in the Bill of Rights firmed, will replace a moderate on the Alito. By that standard, Judge Alito is and in our Constitution. Court, retiring Justice Sandra Day well qualified. I met with Judge Alito in my office O’Connor. Sandra Day O’Connor by the Since graduating from Yale Law and discussed with him my concerns way, in Kelo v. New London, CT, School in 1975, Judge Alito has had an about this troubling trend of judges ‘‘commissar taking of homes’’ case, exemplary legal career, serving as U.S. who ignore the will of the people and ruled on the side of the Constitution, attorney, Assistant U.S. Solicitor Gen- start inventing laws themselves. I was so there will be no change there. We eral, and 15 years as a member of the actually very encouraged by his schol- will need to get another Justice if the Third Circuit Court of Appeals. During arship, his knowledge, and what I feel States are not able to rein in such that lengthy tenure in court, we have was a very genuine, sincere under- takings of homes. had the benefit of seeing Judge Alito’s standing that we need a respectful, re- Justice O’Connor is a person for commitment to the rule of law and his strained judiciary. And also his ability whom I have a great deal of respect. commitment to an impartial review of to cite examples from his very distin- She served with great distinction on the law and the facts of any given case. guished career of cases where he was the Court for many years and has a As Alexander Hamilton noted in Fed- presented with decisions where he put compelling, interesting life story. The eralist No. 78, if the courts are to be aside his personal view and followed fact that President Reagan appointed truly independent, judges cannot sub- the law. her as the first woman on the Supreme stitute their own preferences to the I asked: What do you do if you do not Court of the United States as a pioneer ‘‘constitutional intentions of the [leg- like a law? He said: You have to apply in so many ways has been an inspira- islative branch].’’ the law, but it may be appropriate tion to many young people, regardless Judge Alito clearly expressed during after the decision is made, for a judge of gender. Particularly many young his confirmation hearings, and his judi- or panel of judges to communicate with women who think, There is a future for cial career attests to the fact, that he the legislature and advise them they me in the law. We have seen a great in- would not impose his personal views may wish to revisit a certain issue. crease in the number of young women over the demands of the law and prece- However, when it came to issuing a de- interested in studying in our law dent. I find that refreshing, I find that cision, he felt very strongly that judges schools. encouraging, and I find that a strong would follow their duty and should in- They will say that we have to have reason for supporting the nomination corporate the law as written. someone who has the exact same phi- of Judge Alito. Another quality of Judge Alito is his losophy as whoever was being replaced. I take great comfort in the fact that deep knowledge of the law and his sin- We ought to remember the Founders, Judge Alito has received the unani- cere and deep commitment of being a in drafting article III of the Constitu- mous approval of the American Bar As- student of our Constitution. When I tion that creates the Supreme Court, sociation’s committee that reviews ju- asked Judge Alito about his role, his provides no requirement there must be dicial candidates. This is a committee view of the role of the State to pass an ideological balance on the Court. that is greatly respected by the legal laws, he gave a thoughtful answer. He For over 200 years, the Senate has re- profession, as well as the general pub- had a considered analysis of the dor- spected the prerogative of the Presi- lic, for their impartiality and demand mant commerce clause. It was similar dent and performed their advice-and- and insistence on and careful watch to being back in law school, learning consent function and ultimately voted over a quality judiciary. The American

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Judge Alito fulfills all of those fearing men were simply earning their means each and every one of the mem- requirements amply, and I am satisfied daily bread at the Sago coal mine in bers of that committee gave Judge he will make an exceptional Justice of Upshur County, WV, when an explosion Alito their highest, most qualified rat- the Supreme Court. killed 1 man and trapped 12 others 260 ing. This should weigh heavily in favor Judge Alito has made it abundantly feet below its surface. For 41 long of the confirmation of Judge Alito. clear that his personal views have ab- hours, these men waited for help. They What we know—after the confirma- solutely no place in performing his ju- waited, they waited, they waited, and tion hearings, after extensive inter- dicial role in our constitutional struc- they prayed. They wrote farewell mes- action with Members of the Senate, ture. Rather, the Constitution, stat- sages to their loved ones. How grip- after 3 days of testimony before the Ju- utes, and controlling prior decisions, as ping. They waited as the air they diciary Committee, and responses to a applied to the facts of the case at hand, breathed gave out and their lungs filled wide range of written questions by Sen- are the sole basis for his judicial deter- with toxic gases. ators after the hearings—is that Judge minations. I find that, as it should be, Above the ground, we all prayed for a Alito is a humble and dispassionate the correct standard to apply to a judi- miracle such as we had enjoyed with judge, with a deep understanding and cial nominee for determining his fit- the nine miners who had been trapped modest view of his judicial role in the ness for this high office. at the mine at Quecreek, PA, in 2002 governance of our Nation and respect At the end of the day, we know that and were found alive. But this time, for the limitations of precedent. elections have consequences. The fact there was only one miracle. My wife He has an awareness of the dangers of that the voters have placed President Erma and I, like many others in my looking to foreign jurisdictions for Bush in the office of President now for great State of West Virginia, continue guidance in shaping the laws of our a second term has also been an indica- to pray for the recovery of the sole sur- land and a commitment to respecting tion that President Bush deserves and vivor of the Sago explosion, Mr. Randal the proper role of the courts in the in- should be allowed to have his pick for McCloy, Jr. But tragically, there were terpretation of the law. the Court. no miracles for Tom Anderson, Alva I am persuaded that Judge Alito will It is our tradition that Presidents Bennett, Jim Bennett, Jerry Groves, nominate, select, and fill vacancies to look to establish precedents, be re- George ‘‘Junior’’ Hammer, Terry the Court, while the Senate’s role is spectful of the doctrine of stare decisis, Helms, Jesse Jones, David Lewis, Mar- one of advice and consent. We simply and will use the Constitution and the tin Toler, Jr., Fred Ware, Jr., Jackie do not have the prerogative of deciding law as his guideposts as opposed to any Weaver, and Marshall Winans. Once who it is we would prefer to see on the personal whim or political agenda. again, a small coal-mining town in Court or who it is we might find more There are those who would say they West Virginia went into deep mourn- philosophically suitable to us or more are troubled by what they perceive, ing, and an entire State wept with to our liking. Our role as Senators is to that Judge Alito would not side with them. provide the President with the advice the ‘‘little guy’’ when deciding cases. And then, incredibly, 17 days later, a and consent on the qualifications of Let my tell you, I am someone who, for mine fire broke out on a conveyor belt those he seeks to put in this high of- 25 years, took clients’ matters to at the Aracoma Alma Mine No. 1 in court, more often than not rep- fice. I see an evolving new standard before Logan County, WV, trapping two min- resenting the little guy. But even with us. I heard from the members of the ers underground. In shock and dis- that experience, I am more committed Judiciary Committee who did not sup- belief, the State once again fell to its than ever to the belief I had when I port this nominee the setting of a knees and prayed and pleaded for a took a client to court, whether a little brand new standard, and it is no longer miracle. Forty hours later, we learned guy or a big guy. My hope, my prayer, qualifications, but it is now whether that two more miners—Don Bragg and was that my client would find an im- they philosophically will judge this Ellery Hatfield—had perished. Another partial judge. person to be the kind of person they small coal-mining town in West Vir- It is unthinkable to me to suggest would want based on their political ginia went into deep mourning, and this standard today should be that we philosophy. That, I would suggest, is again an entire State wept with them. should look for whether a judge will wrong. It has never been the standard Once again, the national media purposely lean in favor of one side of applied or utilized by our Nation as we rushed in to report the disaster to the the litigation or another before select- have sought to confirm Justices to our world. Once again, editorials filled ing who our judges ought to be. Our Court for over 200 years. I would say it newspapers across the country decry- judges must be impartial. Our judges is absolutely wrong to begin that new ing the dangers of mining coal, de- must not be there for the little guy or standard and leave it unchallenged as nouncing the callousness of coal com- for the big guy. Judges need to take we seek the confirmation of one more panies, and questioning the commit- the facts and the law, interpret them Justice to the Supreme Court. ment of State and Federal officials to and utilize them to reach a fair and My advice and consent is that Judge mine safety. just verdict, as dictated by the laws of Alito is one of the select few Hamilton Madam President, as a child of the our Nation, not because they favor a had in mind as having the character, Appalachian coalfields, as the son of a little guy, not because they favor a big intelligence, and temperament to West Virginia coal miner, as a U.S. guy. If the law and the facts happen to guard the liberties secured by our Con- Senator representing one of the most be on the side of the little guy, the lit- stitution. I strongly urge my col- important coal-producing States in the tle guy should prevail. If the law and leagues to support his nomination to Nation, let me say I have seen it all be- the facts happen to be on the side of the Supreme Court. fore. Yes, I have seen it all before. the big guy, then our system of justice Thank you, Madam President. I sug- First, the disaster. Then the weeping. demands that the big guy should pre- gest the absence of a quorum. Then the outrage. And we are all too vail. The PRESIDING OFFICER. The familiar with what comes next. After a I love the analogy that Chief Justice clerk will call the roll. few weeks, when the cameras are gone, Roberts used during the course of his The assistant legislative clerk pro- when the ink on the editorials has confirmation. In selecting a Justice to ceeded to call the roll. dried, everything returns to business as the Supreme Court, he said we are Mr. BYRD. Madam President, I ask usual. The health and the safety of looking for an umpire. We are not look- unanimous consent that the order for America’s coal miners, the men and ing for a pitcher. We are not looking the quorum call be rescinded. women upon whom the Nation depends for a batter. We are looking for the um- The PRESIDING OFFICER. Without so much, is once again forgotten until pire—the guy who will call the balls objection, it is so ordered. the next disaster. But not this time.

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Let me say that this U.S. Senator and arrived at the scene. It took 11⁄2 hours How about that. That statement the West Virginia delegation in the before the rescue teams arrived. An- proved to be utterly, utterly, utterly House and in the Senate will do all other 5 hours passed before the first false. Minutes later, after Dye was that we can to prevent that. There is team entered the mine. The Mine Act asked if such technology existed, the blame to be assessed in the wake of requires that rescue teams be available subcommittee heard from a former these tragedies and plenty of it to go to mines in the event of an emergency, MSHA Secretary, Davitt McAteer, who around. and yet it took 101⁄2 hours before the verified that such communications Let us begin with the coal company first rescue team began its effort at technology certainly does exist, and that operated the Sago mine, which Sago. Mr. McAteer put tracking and commu- had been issued 276 safety and health A short 2 weeks later, similar horrors nications devices on the table—on the violations in 2004 and 2005. Let me try emerged from a second tragedy at the table—right in front of the sub- to put that into perspective. Could any Aracoma Alma mine and, again, MSHA committee. automobile driver or any truckdriver did not know of the incident for 21⁄2 What does that say about the people rack up 276 tickets for reckless driving hours. Something is incredibly wrong. leading this agency when they don’t and still keep a license? What if some- It is obvious something is very, very even know about the existence of life- one had 276 mistakes on a tax return? wrong at MSHA. The rescue procedures saving technology that ought to be in One can bet that taxpayer would be for miners are woefully inadequate. the mines? What does that say? Shame, looking at serious penalties and pos- The Sago mine had been cited for 276 shame on them. I am talking about the sibly time in a Federal prison. But here violations over the past 2 years, and people leading the agency when they was a coal company with 276 Federal yet the mine operator never paid a fine testified that they don’t even know mine safety violations still operating. larger than $440 and often only paid a about the existence of lifesaving tech- While some of these were minor trans- minimal $60 fine. Few people realize nology that ought to be in the mines. gressions, too many of them were ‘‘sig- that even when a fine is assessed, the Why is the Acting Administrator of nificant and substantial’’ or, simply coal operator can negotiate the fine to MSHA, charged with protecting the put, very serious, and yet business a piddling amount. health and safety of coal miners, so went on as usual. It is quite possible Congress recognized a long time ago abysmally ignorant of these tech- that not one of these specific violations that mine safety and health depends on nologies? The families of these miners contributed to the explosion at Sago. financial penalties that ‘‘make it more and the Members of this Congress are But 276 violations is certainly indic- economical for an operator to comply’’ owed an explanation. ative of a company’s sloppy attention with the law ‘‘than it is to pay the pen- In this day and age of cell phones, toward the well-being of its employees. alties assessed and continue to operate BlackBerrys, and text messaging, it is That should be obvious on its face. while not in compliance.’’ Clearly, the absolutely unacceptable that safe tele- What about the agency that is re- 276 penalties assessed—whatever the communications technology was not sponsible for making sure that coal op- amount of the fine—weren’t enough to available to the Sago and Alma miners. erators comply with the spirit and the convince this company to take a hard These weaknesses in mine emergency letter of the law—the Mine Safety and look at safety for its employees. preparedness are unacceptable. Where Health Administration. Let me be clear The Sago mine was a habitual viola- is MSHA? Repeating the first question that I have nothing but praise for the tor—a habitual violator. It was being that was ever asked in the history of brave rescue teams that went into the assessed only the minimum penalties mankind when God sought Adam in the Sago and Alma mines. Anybody who allowed by the law. The maximum pen- Garden of Eden in the cool of the day. has been around a mine explosion alty could be $220,000 or $1 million, but God said: Adam, where art thou? Well, knows the dangers that still lurk not it makes no difference unless MSHA is where was MSHA? Where was MSHA? just hours but days after such an acci- willing to impose and collect that max- What is that agency waiting for? dent. To go into a mine after a dis- imum amount. Habitual violators must Ask the leadership at MSHA. At Sago aster, after an explosion, and to risk be brought to a state of fearing the and Alma, we have seen the disastrous one’s own life in an effort to save other consequences of a heavy fine to be paid results of complacent attitudes at the lives, as these rescuers do, takes guts. when assessed. We have to get tough top—at the top. A quick look at the It takes a love for one’s fellow man. about enforcing the law. list of rules approved and scuttled at Coal miners are a special breed. I At MSHA, complacent attitudes and MSHA in recent years—from regula- have seen these miners go into a mine arrogance rule at the top. At the Sen- tions governing mine rescue teams to after an explosion, risking their own ate Appropriations Labor-HHS Sub- the use of belt entries for ventilation lives, realizing that another explosion committee hearing on Monday, Acting to inspection procedures to emergency might occur and another tragedy would MSHA Secretary David Dye was asked breathing equipment to escape routes, follow in the wake of the first tragedy. directly about the issue of communica- any one of which might figure into the Yes, MSHA is filled with good, well- tions technology: Why are the miners deaths and disasters at the Sago and intentioned, and dedicated profes- trapped underground not able to com- Alma mines—suggest that something, sionals, but something is terribly municate with the rescue teams, and something, something is terribly wrong with the leadership at MSHA. can rescue teams better locate trapped wrong. Something is terribly, terribly, Consider that for 4 straight years, miners? Dye was asked directly if tech- terribly wrong, and it ought to be President Bush has proposed to cut the nology exists to correct these prob- fixed. budget for coal safety enforcement lems, and he stated for the record that In 1995, labor and industry jointly below the level enacted by Congress such technology did not exist. proposed a number of initiatives on the previous year, and for 4 straight Now get that. Let me say that again. mine emergency preparedness to im- years the Congress has had to struggle At this hearing, conducted by one of prove mine rescue technology and com- to partially restore those cuts. Some the finest Senators on either side of munications. Perhaps one of the most 190 coal enforcement personnel have the aisle here, Republican Senator important was to address the dwindling been lost over the last 4 years through SPECTER of Pennsylvania, at that number of mine rescue teams. MSHA attrition, and they have not been re- record hearing, Acting MSHA Sec- has ignored the report and its rec- placed. The priorities reflected by the retary David Dye was asked directly ommendations. In 2003, the General Ac- Bush administration through MSHA’s about the issue of communications countability Office made a list of rec- budget certainly are not indicative of a technology: Why are the miners ommendations to the Secretary of proper concern for the health and safe- trapped underground not able to com- Labor to help MSHA protect the safety ty of miners. municate with the rescue teams, and and health of the miners. What hap- On the day of the Sago disaster, 2 can rescue teams better locate trapped pened? MSHA ignored the rec- hours went by—2 hours, with 60 golden miners? Dye was asked directly if tech- ommendation. Shame, shame. minutes each, went by—before MSHA nology exists to correct these prob- Our Nation’s coal miners are vital to even knew about the explosion. It took lems, and he stated for the record that our national economy. During World another 2 hours before MSHA personnel such technology did not exist. War I, coal miners put in long, brutal

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During the oil our citizens. The last thing that we grandfather lost both his legs in the boycott-induced energy crisis of the need is ho hum, arrogant attitudes Coalwood mine and lived in pain until the 1970s, our Nation once again called from this administration and its offi- day he died. My father lost the sight in an upon—yes, our Nation once again cials. Such calumny abuses the public eye while trying to rescue trapped miners. turned, yes, to the coal miners to bail trust and results in the kind of loss of After that he worked in the mine for fifteen more years. He died of black lung. the Nation out of trouble, and the coal life that so grieves families today in When I began to write my books about miners did. Upshur and Logan Counties and all growing up in West Virginia, I was surprised Coal produces over half of the elec- across my home State of West Vir- to discover, upon reflection, that maybe it tricity we use every day in these ginia. wasn’t such an ordinary place at all. I real- United States. Here is an example of it Madam President, in memory of the ized that in a place where maybe everybody all around the ceiling here, the lights Sago and Alma Miners, and all those should be afraid after all, every day the men that are burning making it bright as went off to work in a deep, dark, and dan- who labor and have labored in our na- gerous coal mine instead they had adopted a day right here in this Chamber. That is tion’s coal mines, I ask unanimous con- philosophy of life that consisted of these coal. That is energy that comes from sent that the eulogy of Homer Hickam, basic attitudes: coal, burning coal—coal that is pro- from the Sago Memorial Service on We are proud of who we are. We stand up duced by hard, backbreaking labor in January 15, 2006, be printed in the CON- for what we believe. We keep our families to- the dangerous mines. Coal is dug out, GRESSIONAL RECORD. gether. We trust in God but rely on our- scratched out by the coal miner. selves. There being no objection, the mate- By adhering to these simple approaches to So today America’s coal miners pro- rial was ordered to be printed in the life, they became a people who were not vide the electricity—the electricity RECORD, as follows: afraid to do what had to be done, to mine the right here—the electricity that lights Families of the Sago miners, Governor deep coal, and to do it with integrity and the streets of Washington, New York Manchin, Mrs. Manchin, Senator BYRD, Sen- honor. City, Sacramento, and all over this ator ROCKEFELLER, West Virginians, friends, The first time my dad ever took me in the country, and it heats our homes in win- neighbors, all who have come here today to mine was when I was in high school. He ter, lights our homes in summer. remember those brave men who have gone on wanted to show me where he worked, what before us, who ventured into the darkness he did for a living. I have to confess I was Those coal miners could provide the pretty impressed. But what I recall most of key to our Nation’s future energy secu- but instead showed us the light, a light that shines on all West Virginians and the nation all was what he said to me while we were rity. You can bet on those coal min- today: down there. He put his spot of light in my ers—and they are of a different breed, a It is a great honor to be here. I am accom- face and explained to me what mining meant special breed. If we made better use of panied by three men I grew up with, the to him. He said, ‘‘Every day, I ride the this abundant natural resource, coal, rocket boys of Coalwood: Roy Lee Cooke, mantrip down the main line, get out and we could reduce our country’s dan- Jimmie O’Dell Carroll, and Billy Rose. My walk back into the gob and feel the air pres- sure on my face. I know the mine like I know gerous dependency on foreign oil. wife Linda, an Alabama girl, is here with me as well. a man, can sense things about it that aren’t We could make ourselves less depend- right even when everything on paper says it ent on the rule of despots, and less of a As this tragedy unfolded, the national media kept asking me: Who are these men? is. Every day there’s something that needs target for the fanatics and the terror- And why are they coal miners? And what to be done, because men will be hurt if it ists of the Middle East. kind of men would still mine the deep coal? isn’t done, or the coal the company’s prom- God blessed our country. Yes, the Al- One answer came early after the miners ised to load won’t get loaded. Coal is the life mighty who was there at the beginning were recovered. It was revealed that, as his blood of this country. If we fail, the country blessed our Nation, especially West life dwindled, Martin Toler had written this: fails.’’ It wasn’t bad. I just went to sleep. Tell all And then he said, ‘‘There’s no men in the Virginia with an abundance of coal, world like miners, Sonny. They’re good men, and God provided us with the good, the I’ll see them on the other side. I love you. In all the books I have written, I have strong men. The best there is. I think no brave, the hard-working coal miners to matter what you do with your life, no matter never captured in so few words a message so where you go or who you know, you will dig that coal and bring it from the powerful or eloquent: It wasn’t bad. I just never know such good and strong men.’’ Earth, the bowels, the dark, the black, went to sleep. Tell all I’ll see them on the the darkness. The coal miners have Over time, though I would meet many fa- other side. I love you. mous people from astronauts to actors to never failed our Nation. I believe Mr. Toler was writing for all of Presidents, I came to realize my father was I know. I grew up in a coal miner’s the men who were with him that day. These right. There are no better men than coal home. I married a coal miner’s daugh- were obviously not ordinary men. miners. And he was right about something ter. Her brother-in-law died from black But what made these men so extraor- else, too: lung. His father was killed under a dinary? And how did they become the men If coal fails, our country fails. they were? Men of honor. Men you could The American economy rests on the back slate fall. trust. Men who practiced a dangerous profes- We have lived—my family has lived— of the coal miner. We could not prosper with- sion. Men who dug coal from beneath a jeal- out him. God in His wisdom provided this with coal miners. We have coal miners ous mountain. country with an abundance of coal, and he in our families. We have lost loved Part of the answer is where they lived. also gave us the American coal miner who ones. Look around you. This is a place where glories in his work. A television interviewer The test of a great country such as many lessons are learned, of true things that asked me to describe work in a coal mine ours is how serious we are about pro- shape people as surely as rivers carve val- and I called it ‘‘beautiful.’’ He was aston- tecting those among us who are most leys, or rain melts mountains, or currents ished that I would say such a thing so I went at risk, whether it be innocent children push apart the sea. Here, miners still walk on to explain that, yes, it’s hard work but, with a trudging grace to and from vast, deep who need guarding from hunger and when it all comes together, it’s like watch- mines. And in the schools, the children still ing and listening to a great symphony: the disease or our elderly and sick who learn and the teachers teach, and, in snowy continuous mining machines, the shuttle cannot afford medication. Those men white churches built on hillside cuts, the cars, the roof bolters, the ventilation and women who bravely labor in such preachers still preach, and God, who we have brattices, the conveyor belts, all in concert, dangerous occupations as coal mining no doubt is also a West Virginian, still does all accomplishing their great task. Yes, it is to provide our country with critical en- his work, too. The people endure here as a beautiful thing to see. ergy should be protected from exploi- they always have for they understand that There is a beauty in anything well done, tation by private companies with cal- God has determined that there is no joy and that goes for a life well lived. greater than hard work, and that there is no How and why these men died will be stud- lous attitudes about health and safety. water holier than the sweat off a man’s brow. ied now and in the future. Many lessons will That is why MSHA exists. That is why In such a place as this, a dozen men may be learned. And many other miners will live we created MSHA. That is why I was die, but death can never destroy how they because of what is learned. This is right and here when that agency was created. lived their lives, or why. proper.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00026 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S61 But how and why these men lived, that is This will be the second Supreme Judge Alito’s opponents are trying to perhaps the more important thing to be Court nominee I will have considered stop his nomination. studied. We know this much for certain: since coming to the Senate. They are concerned he will be a vote They were men who loved their families. I take this responsibility very seri- for the rule of law and the Constitu- They were men who worked hard. They were men of integrity, and honor. And they were ously. tion. And not a judicial activist to also men who laughed and knew how to tell I have spent time with Judge Alito their liking on the Supreme Court. a good story. Of course they could. They and I have studied his background and The framers of the Constitution cre- were West Virginians! record. ated a system of government where the And so we come together on this day to re- I closely followed his confirmation peoples’ voices are to be expressed call these men, and to glory in their presence hearings in the Judiciary Committee. I through their elected representatives. among us, if only for a little while. We also can say without question that he All Senators and Representatives come in hope that this service will help the families with their great loss and to know should be confirmed. stand for election and are responsible the honor we wish to accord them. I don’t find myself agreeing with the to the people of their States or dis- No matter what else might be said or done Washington Post or the Louisville Cou- tricts. concerning these events, let us forever be re- rier-Journal newspapers very often. The President is accountable to the minded of who these men really were and But even those papers agree that entire Nation and must face the people what they believed, and who their families Judge Alito should be confirmed. in every State. are, and who West Virginians are, and what I first met Judge Alito this past fall. The Justices of the Supreme Court we believe, too. There are those now in the world who I did not know much about him when never have to face voters. would turn our nation into a land of fear and his nomination was announced by That is why the framers gave the leg- the frightened. It’s laughable, really. How President Bush. islative powers to the Congress. little they understand who we are, that we I reserved judgment about his nomi- And that is why they gave the admin- are still the home of the brave. They need nation until I had a chance to meet istrative powers to the President. look no further than right here in this state with him. We—who make policy decisions—are for proof. From that meeting it became clear accountable to the voters. For in this place, this old place, this an- that I could support his nomination. The Justices of the Supreme Court cient place, this glorious and beautiful and are not. sometimes fearsome place of mountains and And his performance at his confirma- mines, there still lives a people like the min- tion hearing further solidified my sup- At its simplest—that is what is ers of Sago and their families, people who port for his nomination. meant by the rule of law. We are a Na- yet believe in the old ways, the old virtues, We are all familiar with the basics of tion of laws—starting with the most the old truths; who still lift their heads from Judge Alito’s background. basic law, the Constitution. the darkness to the light, and say for the na- He has been on the Third Circuit The Constitution spells out the roles tion and all the world to hear: Court of Appeals for 15 years. of the branches of Government. We are proud of who we are. He has participated in several thou- It sets out the role to the courts— We stand up for what we believe. We keep our families together. sand cases and written several hundred which is to settle legal disputes be- We trust in God. opinions. tween parties, and not to set national We do what needs to be done. He attended top schools for both col- policy. We are not afraid. lege and law school—Princeton and The Supreme Court is also to be a Mr. BYRD. Mr. President, I yield the Yale. last check on the legislative and execu- floor. I suggest the absence of a I gather all of my colleagues would tive branches when they clearly violate quorum. agree that those things are important the Constitution—but not to override The PRESIDING OFFICER (Mr. and impressive—but they do not alone policy decisions when the Constitution THUNE). The clerk will call the roll. qualify him for the job. is silent. The legislative clerk proceeded to There is a lot more to being qualified Judge Alito has a demonstrated call the roll. for the Supreme Court than pedigree record of respecting the rule of law and Mr. BUNNING. Mr. President, I ask and judicial experience. the will of the people through their unanimous consent that the order for Judicial philosophy and one’s ap- elected representatives. the quorum call be rescinded. proach to judging and the law are most That disturbs some who belong to The PRESIDING OFFICER (Mr. VIT- important. this body. TER). Without objection, it is so or- All these factors and more must be It bothers them to know that if dered. looked at and weighed before deciding Judge Alito and others like him are on Mr. KERRY. Mr. President, could we if a nominee is qualified. the Supreme Court—then the steady have an agreement on the time? I I have done so and it is clear to me advance of courts acting as a policy- apologize, I was supposed to have the that Judge Alito should be confirmed. making branch of government will be time between 1:30 and 2. Since the Sen- A good place to begin is with Judge ator from Kentucky is waiting—I want- halted. Alito’s record on the Third Circuit Judge Alito has shown respect for the ed, obviously, to be able to complete Court of Appeals. rule of law throughout his career on my statement—we have agreed to He has participated in over 3,000 the bench—and even before that when switch times. He will speak for 15 min- cases and written over 300 opinions. serving in the Reagan Administration. utes, with the agreement that I would His record in those cases shows that He understands that each branch of then speak after. he is fair and impartial. And that he The PRESIDING OFFICER. Without government has a unique role to play. understands the law and the judicial And he understands that only two are objection, it is so ordered. Mr. KERRY. I thank the Chair. process. accountable to the people. The PRESIDING OFFICER. The Sen- His opinions are written clearly and I take great comfort in Judge Alito’s ator from Kentucky. provide clear guidance to the lower understanding that there is a place in Mr. BUNNING. Mr. President, I rise courts. our system of government for policy to speak in support of Samuel Alito’s Clarity is something we certainly making—and that the place is not the nomination to the United States Su- need on the Supreme Court. courts. preme Court. The clarity and fairness of Judge Many of Judge Alito’s opponents Judge Alito is supremely qualified. Alito’s opinions speak well to his quali- view the courts as just another policy He has a record of fairness and judi- fications. making branch of government. cial restraint. He will do a fine job on But what speaks volumes is that his In other countries that may be true. the Supreme Court. critics have been unable to find a sin- But in the United States it is not. I will vote for his nomination and gle case he participated in to show that Our judges are insulated from public any procedural measures necessary to he is unqualified as a judge. pressure. confirm him on the Senate floor. That is not to say that his critics It is this way so that they can make Confirmation of a Supreme Court have not tried. But to use any case impartial and fair judgments on Justice is one of the most import jobs against him—critics have had to dis- cases—no matter how popular or un- we have as Senators. tort the record or confuse the issue. popular the result.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00027 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S62 CONGRESSIONAL RECORD — SENATE January 25, 2006 They are also insulated from the po- the ABA Standing Committee on the the argument in a minimally adequate litical process to prevent undue influ- Federal Judiciary, declared that Judge fashion, he might well agree and join ence from Congress or the President. Alito’s ‘‘integrity, his professional the majority in voting to reverse. He Does anyone here actually believe competence and his judicial tempera- continued to say: the framers of our Constitution insu- ment are indeed found to be of the I would overlook many technical viola- lated judges so they could enact poli- highest standard.’’ tions of the Federal Rules of Appellate Pro- cies without any political consequence? Mr. President, I have to say that any- cedure and our local rules, but I do not think In fact, the framers rejected pro- one who watched Judge Alito at his it is too much to insist that Pirolli’s brief at posals to give the courts any policy- Senate hearing would agree that his least state the ground on which reversal is making powers. professional competence and judicial sought. But that is not good enough for some temperament were certainly on dis- It is very important to understand who oppose Judge Alito. play. I believe that showed very well that an appellate judge cannot create They want judges who will make why he will be confirmed as a Supreme the facts. The appellate judge cannot broad policy decrees from the bench. Court Justice. argue the lawyer’s case when he is not They want liberal judges who will The American Bar Association gave equipped with the facts or the reason rule by dictating policies that fail at Judge Alito its highest rating. Most for the request for a reversal. So I be- the ballot box. important, Judge Alito has a firm be- lieve it is important that we set the They want activist judges. And Judge lief in the rule of law upon which our record straight on that. Alito is not an activist judge. country is based. As he stated on the Judge Alito has shown by his manner Judge Alito will stand up to the ac- first day of his hearings, ‘‘No person in during the hearing and his 15 years on tivists on the Supreme Court and help this country, no matter how high or the bench that he is fully qualified make sure the Court follows its proper how powerful, is above the law, and no under the constitutional requirements and vital role. person is beneath the law.’’ Judge Alito and from every neutral observer with The confidence of the citizens in the whom I have talked for this position. I courts is harmed when the courts recognizes that, in our system, judges interpret the law, but should not cre- hope there will not be further delay. overstep their bounds. I am so hopeful that the people who Like Chief Justice Roberts, I am con- ate policy. They should not decide would vote against him would at least fident Judge Alito will only act within what they would like to have the law let us have the vote. He has been thor- the Supreme Court’s proper role. be; rather, they simply should deter- And I am confident he will help re- mine what the law states. oughly vetted. He has been thoroughly store the American people’s faith in He said on his second day of hearings: questioned. The Senate has fulfilled its our court system. . . . it is not our job to try to produce par- constitutional responsibility, and I I press upon my colleagues to support ticular results. We are not policymakers and think by the end of this week we this nomination. we shouldn’t be implementing any sort of should allow Judge Alito to be able to I will vote for Judge Alito and what- policy agenda or policy preferences that we start preparing for the very important ever measures and procedures nec- have. cases that are going to come before the essary to ensure he gets a final vote up During the 2004 Presidential cam- Court right away. Let him have the or down. paign, President Bush made clear that chance to be fully prepared and do the I am proud to support him. he planned to nominate to the bench job we are asking him to do. It is the Mr. President, I yield the floor and judges who would respect the rule of least we should expect of the Senate. It suggest the absence of a quorum. law, judges who would interpret but is the responsible approach for the U.S. The PRESIDING OFFICER. The not legislate. In particular, he drew at- Senate. The Supreme Court and the clerk will call the roll. tention to his desire to nominate peo- people of America deserve no less. The bill clerk proceeded to call the ple who would strictly interpret the Thank you, Mr. President. I yield the roll. Constitution. Knowing Supreme Court floor. Mrs. HUTCHISON. Mr. President, I nominations were on the horizon and The PRESIDING OFFICER. The Sen- ask unanimous consent that the order knowing the President’s views, the ator from Arizona is recognized. for the quorum call be rescinded. American people re-elected President Mr. MCCAIN. Mr. President, I thank The PRESIDING OFFICER. Without Bush. the Senator from Texas for her re- objection, it is so ordered. With the previous nomination of marks and her strong support of this Mrs. HUTCHISON. Mr. President, I Chief Justice John Roberts and now very decent American and the contin- rise today to support Judge Samuel with the nomination of Judge Alito, ued leadership she exercises in our Alito’s confirmation to the Supreme the President is fulfilling his promise party and in our caucus. Court of the United States. Judge to the American people. Now it is time We know that elections have con- Alito’s 15 years of experience on the for the Senate to play its constitu- sequences. When President Bush ran Third Circuit Court of Appeals and his tional role in the nomination process for reelection, he stated plainly and 15 years serving the Justice Depart- to ensure the President’s nominee often that if given the opportunity, he ment, including his position as U.S. at- meets the high standards we set for would nominate judges to the U.S. Su- torney for the District of New Jersey, members of the Supreme Court of our preme Court who strictly interpret the make him well prepared to be an Asso- land. Judge Alito is extremely capable, Constitution of the United States. True ciate Justice on our Highest Court. he is highly qualified, and he deserves to his promise, the President nomi- One of the best insights into Judge the support of this body. nated John Roberts to become the 18th Alito’s judicial ability is gained from I wish to also rebut one statement Chief Justice of the United States. Just listening to his colleagues on the Third that was made earlier today. I believe as true to his promise, he nominated Circuit. Colleagues from both sides of Judge Alito was unfairly criticized for Samuel Alito to serve as Associate Jus- the political aisle praise him for his ju- his opinion in Pirolli v. World Flavors, tice of the Supreme Court. dicial excellence. Judge Aldisert, a Inc. This was a case involving a men- I was pleased that President Bush nominee of President Lyndon Johnson, tally disabled man who claimed he was nominated Judge Alito, as were many stated before the committee: sexually harassed at work. They have other Members of this body. I reserved We who have heard his probing questions alleged that by ruling against the final judgment, as most of us did, until during oral argument, we who have been plaintiff in the appellate court, Judge we saw the confirmation process pro- privy to his wise and insightful comments in our private decisional conferences, we who Alito showed he is ‘‘results-oriented.’’ ceed. I don’t take the Senate’s advice have observed first hand his approach to de- Their criticisms are unfair and mis- and consent role lightly. I didn’t want cision-making and his thoughtful judicial leading. Judge Alito was not even able to encourage a rush to judgment. temperament and know his carefully crafted to form an opinion on the merits of the The hearings have occurred, and I be- opinions, we who are his colleagues are con- case because the plaintiff’s lawyer pre- lieve Judge Alito has performed admi- vinced that he will also be a great Justice. sented an incomplete brief. rably. There were 18 hours and 700 Moreover, after an exhaustive inves- Judge Alito made clear in his dissent questions, and there probably would tigation, Mr. Steve Tober, chairman of that had the plaintiff’s lawyer raised have been a lot more questions if there

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00028 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S63 had not been the length of the ques- worked for the ACLU and held liberal came his time to choose a Supreme tions, sometimes lasting as long as a views. But I also believe that elections Court nominee. You don’t have to take half hour. have consequences. The President of my word for it. Seven judges testified Anyway, I believe he is worthy of our the United States—at that time, Presi- before the committee who served on support. As has been stated time after dent Clinton—nominated them as his the Third Circuit with Judge Alito. time on the floor, he earned the high- selection. There were very few—a hand- They were nominated by Lyndon John- est ratings of the American Bar Asso- ful of votes against either Justice son, Richard Nixon, Ronald Reagan, ciation. Breyer or Justice Ginsburg. George H.W. Bush, and Bill Clinton, Let me tell you what impresses me, When there is a large number of really a hodgepodge of nominees in Mr. President, probably as much as votes against this highly qualified indi- terms of their source. These judges had anything else. It is the strong endorse- vidual, it is a symptom of the rather a universal belief regarding Judge ment Judge Alito got from the people bitter partisanship that exists in this Alito, and that belief was that he is a who used to work for him. There is no- body today, and I regret that very great colleague, a good man, a judge’s body who knows people better than much. There are pressing issues, such judge. They came before our com- those who work for you. There is a very as Iran and their rapid acquisition of mittee to his defense. impressive list of former law clerks of nuclear weapons, which spring to mind. I ask unanimous consent to print in Judge Alito writing to urge the Senate We have to sit down in an atmosphere the RECORD excerpts of these judges’ to confirm him. As they state in their of mutual trust and respect and work comments. letter: on these things. I will be very sad when There being no objection, the mate- Our party affiliations and views on policy I see this large vote against this good rial was ordered to be printed in the matters span the political spectrum. We and decent American, but, more impor- RECORD, as follows: have worked for Members of Congress on tantly, I will be upset because we con- LOG JUDGES TESTIMONY TALKERS both sides of the aisle and have actively sup- tinue to engage in the kind of partisan- Five sitting and two former judges from ported and worked on behalf of Democratic, ship which has even been ratcheted up the U.S. Court of Appeals for the 3rd Circuit Republican, and Independent candidates. lately on lobbying reform, when we testified on behalf of Judge Samuel Alito’s And they go on to say in their letter: should be working out a common ap- nomination to the Supreme Court. What unites us is our strong support for The judges included nominees of Presi- proach and a common cure for a sig- dents Lyndon Johnson, Richard Nixon, Ron- Judge Alito and our deep belief that he will nificant illness that afflicts this body be an outstanding Supreme Court Justice. ald Reagan, George H.W. Bush, and Bill Clin- and the Capitol today. ton. Collectively they have served with That impresses me, when the clerks, I hope we can finish this debate as Judge Alito for more than 75 years, watching the people who work alongside these soon as possible, vote on Judge Alito, him work and evaluating his intellect, char- judges every single day—and it is a and then move forward. acter, independence, and judgment. very long list; it looks to me like there I thank my colleagues, and I yield Judge Becker on working with Judge Alito are 60 to 75 names on there—are all the floor. up close: ‘‘There is an aspect of appellate supporting him. As they state, they are judging that no one gets to see—no one but The PRESIDING OFFICER. The Sen- the judges themselves: how they behave in of all beliefs and party affiliations. ator from South Carolina is recognized. There is no person or persons who conference after oral argument, at which Mr. GRAHAM. Mr. President, I sug- point the case is decided, and which, I sub- know a judge better than those who gest the absence of a quorum. mit, is the most critically important phase clerked for him. The PRESIDING OFFICER. The of the appellate judicial process. In hundreds Finally, they go on to say: clerk will call the roll. of conferences, I had never once heard Sam It never once appeared to us that Judge The assistant legislative clerk pro- raise his voice, express anger or sarcasm, or Alito had prejudged a case or ruled based on ceeded to call the roll. even try to proselytize. Rather, he expresses political ideology. To the contrary, Judge Mr. GRAHAM. Mr. President, I ask his views in measured and temperate tones.’’ Judge Becker on Judge Alito’s intellect Alito meticulously and diligently applied unanimous consent that the order for controlling legal authority to the facts of and open-mindedness: ‘‘Judge Alito’s intel- each case after a full and careful consider- the quorum call be rescinded. lect is of a very high order. He’s brilliant, ation of all relevant legal arguments. It is The PRESIDING OFFICER (Mr. he’s highly analytical and meticulous and our uniform experience that Judge Alito was CHAFEE). Without objection, it is so or- careful in his comments and his written guided by his profound respect for the Con- dered. work. He’s a wonderful partner in dialogue. stitution and the limited role of the judicial Mr. GRAHAM. Mr. President, I would He will think of things that his colleagues branch. like to pick up where Senator MCCAIN have missed. He’s not doctrinaire, but rather That is what Judge Alito is all about left off about the Alito nomination and is open to differing views and will often change his mind in light of the views of a from the people who know him best, what has changed between the Clinton colleague.’’ other than his family. Frankly, that administration and the President Bush Judge Becker on whether Judge Alito is an has a significant effect on my view of 2 administration regarding judges. ideologue: ‘‘The Sam Alito that I have sat him. The question I ask the body and real- with for 15 years is not an ideologue. He’s I will make one other comment. We ly the country is, have the qualifica- not a movement person, He’s a real judge de- are dragging out this process for no tions changed or are the people Presi- ciding each case on the facts and the law, good reason. We all know what the out- dent Bush has chosen to nominate for not on his personal views, whatever they come of the vote is going to be. We the Supreme Court more inferior in may be. He scrupulously adheres to prece- dent. I have never seen him exhibit a bias have other pressing business, including terms of qualifications, temperament, against any class of litigation or litigants. lobbying reform, which needs to be and character than the people Presi- . . . His credo has always been fairness.’’ taken up by this body. We have pend- dent Clinton nominated? As individ- Chief Judge Scirica on Judge Alito’s per- ing the issue of the PATRIOT Act. uals, is there a major difference in sonal character: ‘‘Despite his extraordinary There are many issues we should be ad- their legal experience? Are there any talents and accomplishments, Judge Alito is dressing and at least beginning to work character flaws with these two nomi- modest and unassuming. His thoughtful and on, rather than dragging out this proc- nees that did not exist with President inquiring mind, so evident in his opinions, is equally evident in his personal relationships. ess. I wish my colleagues on the other Clinton’s nominees? If you can find an He is concerned and interested in the lives of side of the aisle would see fit to bring answer to the question other than no, I those around him. He has an impeccable this process to a close and let us vote would like to hear about it. I would work ethic, but he takes the time to be a on Judge Alito and move on to other like someone to come to the floor and thoughtful friend to his colleagues. He treats pressing issues. talk about how Justice Roberts and everyone on our court, and everyone on our The fact that there will probably be a Judge Alito are not in the ball park as court staff, with respect, with dignity, and large number of votes on that side of to qualifications, character, and dis- with compassion. He is committed to his the aisle against Judge Alito doesn’t position with Justice Breyer and Jus- country and to his profession. But he is upset me as much as it saddens me. I equally committed to his family, his friends, tice Ginsburg. and his community. He is an I admirable didn’t agree with the judicial philos- It is clear to me that President Bush judge and an admirable person.’’ ophy of Justice Breyer or Justice Gins- picked two very well qualified people Chief Judge Scirica on Judge Alito’s open- burg. I knew that Justice Ginsburg to serve on the Supreme Court when it mindedness: ‘‘Like a good judge, he considers

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00029 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S64 CONGRESSIONAL RECORD — SENATE January 25, 2006 and deliberates before drawing a conclusion. . . . I am very, very much involved in a num- I would argue that of all the records I have never seen signs of a predetermined ber of endeavors that one who is familiar that have ever been amassed for a outcome or view, nor have I seen him express with Judge Alito’s background and experi- nominee Judge Alito’s record is on par impatience with litigants or with colleagues ence may wonder—‘Well, why are you here with Ginsburg, Breyer, and anyone else with whom he may ultimately disagree. He today saying positive things about his pros- is attentive and respectful of all views and is pects as a Justice on the Supreme Court?’ who has ever been nominated, in terms keenly aware that judicial decisions are not And the reason is that having worked with of being highly qualified—15 years on academic exercises but have far-reaching him, I came to respect what I think are the the bench and a good person. consequences on people’s lives.’’ most important qualities for anyone who Those who know him best, those who Judge Barry on Judge Alito’s service as puts on a robe, no matter what court they work with him when the cameras are U.S. Attorney: ‘‘The tone of a United States will serve on, but in particular, the United not on and when nobody else is around Attorney’s Office comes from the top. The States Supreme Court.’’ all have the same view of Judge Alito: standard of excellence is set at the top. Sam- Judge Lewis on Judge Alito’s honesty and He is a good person who takes his job uel Alito set a standard of excellence that integrity: ‘‘As Judge Becker and others have was contagious—his commitment to doing alluded to, it is in conference, after we have seriously. He follows the law, and he is the right thing, never playing fast and loose heard oral argument and are not propped up conservative, but he is mainstream in with the record, never taking a shortcut, his by law clerks—we are alone as judges, dis- terms of what we expect a judge to be. emphasis on first-rate work, his fundamental cussing the cases—that one really gets to Who is in the mainstream in America decency.’’ know, gets a sense of the thinking of our col- when it comes to judging? And who is Judge Aldisert on Judge Alito’s judicial leagues. And I cannot recall one instance to determine what the mainstream is? independence: ‘‘Judicial independence is sim- during conference or during any other expe- If you would ask me to judge a Demo- ply incompatible with political loyalties, rience that I had with Judge Alito, but in cratic nominee as to whether they were and Judge Alito’s judicial record on our particular during conference, when he exhib- court bears witness to this fundamental ited anything remotely resembling an ideo- in the mainstream of legal thought I truth.’’ logical bent.’’ would try to give you an honest an- Judge Aldisert on working with Judge Judge Lewis on Judge Alito and civil swer. But if you wanted to ask some- Alito for 15 years: We who have heard his rights: ‘‘If I believed that Sam Alito might one other than me—I am a Repub- probing questions during oral argument, we be hostile to civil rights as a member of the lican—I would probably understand who have been privy to his wise and insight- United States Supreme Court, I guarantee why you want to ask somebody other ful comments in our private decisional con- you that I would not be sitting here today. ferences, we who have observed at first hand than me. . . . My sense of civil rights matters and how How do we determine if a person is in his impartial approach to decision-making courts should approach them jurispruden- and his thoughtful judicial temperament and tially might be a little different. I believe in the mainstream of being a judge? Rath- know his carefully crafted opinions, we who being a little more aggressive in these areas. er than asking a politician, maybe we are his colleagues are convinced that he will But I cannot argue with a more restrained should go to a source outside the polit- also be a great Justice. approach. As long as my argument is going ical moment, outside a political body, Judge Garth on Judge Alito’s lack of an to be heard and respected, I know that I have who believes that this is a hugely im- agenda: ‘‘I can tell you with confidence that a chance. And I believe that Sam Alito will portant decision not only for the coun- at no time during the 15 years that Judge be the type of Justice who will listen with an Alito has served with me and with our col- try but has political consequences. open mind and will not have any agenda- The reason this is an important po- leagues on the court and the countless num- driven or result-oriented approach.’’ ber of times that we have sat together in pri- Judge Lewis on why he endorses Judge litical decision is because special inter- vate conference after hearing oral argument, Alito: ‘‘I am here as a matter of principle est groups are watching our every has he ever expressed anything that could be and as a matter of my own commitment to move. Millions of dollars have been described as an agenda. Nor has he ever ex- justice, to fairness, and my sense that Sam spent on advertising for and against pressed any personal predilections about a Alito is uniformly qualified in all important Judge Alito. There are groups out case or an issue or a principle that would af- respects to serve as a Justice on the United there that have made it their reason fect his decisions.’’ States Supreme Court.’’ Judge Garth on Judge Alito’s personality: for existing to deny this man a vote or ‘‘Sam is and always has been reserved, soft Mr. GRAHAM. Mr. President, I have to defeat him. There are groups out spoken and thoughtful. He is also modest, limited time, so I am not going to read there that are bent on supporting him. and I would even say self-effacing. And these them all. But I ask each Member of the What do nonpolitical people say? are the characteristics I think of when I body to look, if they can, at these What do people who have no political think of Sam’s personality. It is rare to find short quotes, or if they want to listen ax to grind say? What do the people humility such as his in someone of such ex- to the whole testimony, they can cer- who have sat with him a decade plus traordinary ability.’’ tainly retrieve it and ask the question say, his fellow judges, African-Amer- Judge Gibbons on Judge Alito’s independ- of themselves: Why would these judges ence from the executive: ‘‘The committee ican judges? They say he is not an ideo- members should not think for a moment from a variety of different philosophies logue, that he is a good judge. that I support Judge Alito’ s nomination be- be coming before our committee and What does the American Bar Associa- cause I’m a dedicated defender of [the Bush] testifying on behalf of Judge Alito if he tion say? That he has a temperament— administration. On the contrary, I and my truly was an ideologue or out of the over 2,000 people were interviewed, I firm have been litigating with that adminis- mainstream, if he held positions on think it was; some amazing amount of tration for a number of years over its treat- abortion or any other line of cases that interviews conducted—a temperament ment of detainees held at Guantanamo Bay, were extreme in nature or outside the beyond question; that he approaches Cuba, and elsewhere. And we are certainly judicial mainstream of what a judge chagrined at the position that is being taken each case without a bias, but he tries by the administration with respect to those should do? to find the best he can, looking detainees. Why would the American Bar Asso- through his philosophy of judging, to ‘‘It seems not unlikely that one or more of ciation, after looking at hundreds of get the right answer. Those who the detainee cases that we are handling will opinions and thousands of cases in worked with him as a prosecutor, who be before the Supreme Court again. I do not which Judge Alito participated, come have been his clerks, all have nothing know the views of Judge Alito respecting the to the conclusion that he is a judge’s but admiration for this man. issues that may be presented in those cases. judge, that he has the temperament, So why will he get, at best, five or six I would not ask him. And if I did, he would the disposition, and that there is no not tell me. I’m confident, however, that, as Democratic votes? Why did Justice an able legal scholar and a fair-minded Jus- bias when you look at all the cases Ginsburg get 96 votes? I would argue tice, he will give the arguments—legal and where he favors one class of Americans she deserved 96 votes, but she was no factual—that may be presented on behalf of over another? Why would so many law better qualified than Judge Alito. The our clients careful and thoughtful consider- clerks, as Senator MCCAIN mentioned, same things that were said about Jus- ation, without any predisposition in favor of come to the judge’s aid if he was a per- tice Ginsburg, in terms of her tempera- the position of the executive branch.’’ son who exhibited a hard heart, for ment and her legal abilities, are being Judge Lewis on his own liberal politics: ‘‘I lack of a better way of saying it, a per- am openly and unapologetically pro-choice said about Judge Alito. and always have been. I am openly—and it’s son who took the law and applied it to Politics has changed. Some members very well known—a committed human rights individuals in this country coming be- of our committee openly said things and civil rights activist and am actively en- fore him in a statistical manner, not a are different now than they were then. gaged in that process as my time permits. human manner? This is replacing Justice O’Connor. The

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00030 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S65 country is more divided. All I can say argue there has been a change from He has been a good judge. He is a is, don’t start down a road that you President Clinton’s term to the current good man. His record, his colleagues, will regret because Justice Ginsburg time and that the model that Senator his associates, and everything he has replaced Justice White, and if we are HATCH used with Justices Breyer and done as a lawyer, judge, and person going to base our vote on Roe v. Wade, Ginsburg would be a good model for needs to be considered in its entirety— what somebody might do, then a pro- your vote on qualifications and where not for political ends for the moment. life Senator would have a very difficult you do not take dissents and political This vote we are about to take in the time casting a vote for Justice Gins- attacks as the way to try to undermine next few days is going to change the burg because she openly embraced a the nominee. way the Senate works for a long time constitutional right to abortion and I honestly challenge anyone in this to come. My belief is it is going to supported public funding of abortion. body to say that in terms of legal abil- change it for the worse. ity, legal experience, and personal That is a view held by many Ameri- I yield the floor. character, there is a dime’s worth of cans. It is a legitimate view to have. The PRESIDING OFFICER. The Sen- difference between Roberts, Alito, But from a pro-life point of view, it was ator from Maryland is recognized. Ginsburg, and Breyer. There is not. The clear that she was going to probably be Ms. MIKULSKI. Mr. President, on be- different than Justice White because record in Judge Alito’s case and in Judge Roberts’ case shows beyond any half of the Democratic leader, I ask Justice White dissented in Roe v. unanimous consent that the hour of Wade. doubt they are well-qualified lawyers who have practiced before the Supreme Democratic time be controlled as fol- If that is the only reason you were lows: MIKULSKI, CLINTON, and KERRY up voting for Justice Ginsburg, you knew Court, who have the admiration of their colleagues, their associates, and to 20 minutes each, and Senator NEL- with a high degree of certainty the bal- SON of Florida up to 5 minutes. ance of power on the Court would those they have opposed in court, and that they are without any doubt his- The PRESIDING OFFICER. Without change when it came to that one issue. objection, it is so ordered. Somehow back then people of a pro- torically well-qualified nominees. Ms. MIKULSKI. Mr. President, I rise life persuasion set that aside and You can take a record and make it to voice my opinion on the nomination looked at her qualifications. She was what you want to make it for political of Judge Alito. I view this process with never attacked, that I can find in the reasons. You can take anyone’s life and snip and cut and cut and paste and enormous seriousness. It is not like a RECORD, for being the general counsel political campaign because the Su- for the American Civil Liberties Union, make that life anything you want it to preme Court is a lifetime appointment. a left of center organization, from a be in a 30-second commercial. It can happen to me, it can happen to you, conservative’s point of view, that em- Senators are called upon to make Mr. President, it can happen to any braces many causes with which I per- two decisions that are irrevocable and American because if you have been in- sonally disagree. But people under- irretrievable. One is the decision to go volved in the law as long as Judge stood there was a difference between to war and put our troops in harm’s Alito, you can cut and paste his life as lawyering and judging. way. A very serious decision. You can’t I would argue forcefully that the un- a lawyer, as a judge, and as a person. I say the next day, Whoops, I made a popular cause needs the best lawyer. just ask that we reject the politics of mistake. The other is the confirmation cut and paste and we look at the entire Instead of holding it against her for of a Justice of the Supreme Court. record and the complete person. representing politically unpopular When that person goes on the Court, he If we look at the complete person, we or she is there for a lifetime unless causes, causes with which I completely find a good father, a good husband, a disagree, I would give her credit as a they commit an impeachable offense. good man who comes from a humble This vote will have an immense im- lawyer because the unpopular cause background and who has ascended to needs the best lawyers in the country. pact on future generations. Judge Alito the highest levels of the law known in is 55 years old. We can presume that he The more popular it is, the worse law- our country. If we look at his time as yer you can have because you are like- will be blessed with good health and a judge, we will find someone respected will serve if confirmed for at least an- ly to win. by his colleagues who is serious as a Something has changed, and I would other 20 years. He will rule on thou- judge, who is analytical in his thought sands of cases, which themselves will argue that change is being driven by process, who is, by no means, an ideo- the political moment, not by the be around for decades after he has left logue. If we step back, we see in Judge the court. His decisions will affect the record, and it has huge consequences Alito one of the most qualified con- for this country. lives of virtually all Americans for servative judges in the land. generations. The Presidency is a political office. I end with this thought. Elections do To become President, you have to go matter. President Clinton earned the This vote will have an immense im- through a lot—a lot of commercials are right from the American people to pact because of who the judge is replac- run and a lot of scrutiny. To become a make two selections. He picked people ing, Justice Sandra Day O’Connor, the Senator, you have to go through a lot— of known liberal philosophy and incli- very first female ever appointed to the a lot of commercials are run against nation to be on the Court. These are le- Supreme Court. Wow. She has been a you, and you go through a lot of scru- gitimate philosophies to embrace and terrific Justice of the Supreme Court, a tiny. We sign up for the process know- to have. He picked extremely well- historical figure indeed. She broke the ing what we are getting into. qualified people to be on the Court. glass ceiling of the highest Court in Traditionally, judges who come be- They are on the Court now with an our land to become the first female jus- fore the Senate, recommended by the overwhelming vote. tice on the United States Supreme President to the body, do not have to President Bush and his nominees Court. She has been a true pioneer in mount political campaigns and have have been treated differently. I worry helping to pave the way for women in traditionally not been subject to polit- more about the future of the judiciary the legal profession. Justice O’Connor’s ical campaigns. The reason being there than I worry about President Bush be- impact on women in America reached has to be one place in America where cause his time will come and it will go. beyond being a mentor and a role politics is parked at the door. How He may have another pick. But what model. Because it is not only what she many people want their case decided by we are doing on his watch is going to did for women—it was the outstanding a political judge? I don’t; even if they forever change the way the Senate re- Justice she was. She brought new per- agree with me I don’t because that is lates to the judicial confirmation proc- spectives to the Court, a great intellec- dangerous. We are running with warp ess if we don’t watch it. tual ability, and she brought a strong speed toward a day when the judiciary For someone such as Judge Alito to sense of independence. That is why I is politics in another form. There is be rejected by 80 percent of the Demo- think she was picked by Ronald plenty of blame to go around. I am not cratic caucus is not healthy for the Reagan. She has been squarely in the saying the Republican Party is blame- country because, quite frankly, he has mainstream, and often a critical swing less, but when it comes to evaluating earned a better showing than that. He vote, which determined which way a Supreme Court nominees, I would has lived his life well. key case was decided. She brought the

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00031 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S66 CONGRESSIONAL RECORD — SENATE January 25, 2006 ‘‘i’’ word to the Court—not ego but in- to the Senate. I hope that same stand- Another fundamental principle is the tellectual rigor and integrity and inde- ard of looking to the American Bar is ability for an individual to go to court pendence. That is why she was such a applied to other nominees in the fu- when his or her rights are violated. An key vote, and often her vote deter- ture. open courthouse door is fundamental mined whether fundamental rights Second, does he have the highest per- to our democracy. Yet Judge Alito’s were protected or not often depended sonal and professional integrity? Per- record is troubling. In one case involv- on Justice O’Connor’s vote. sonal integrity: I would say yes. By all ing race discrimination, a woman sued When we pick the nominee to replace accounts, he is an honest man. He pays her employer for racial discrimination. Justice Sandra Day O’Connor, I hoped his bills. His wife is devoted to him. He Yet Judge Alito argued that the the President would have picked an- seems to have wonderful children. woman shouldn’t be allowed to present other woman. When he nominated Har- Professional integrity: I have some her case to the jury. The majority dis- riet Miers, I was shocked, stunned, and flashing yellow lights here. One is the agreed with Alito and allowed the even repulsed by the vitriolic, vicious concern about how he says he is this woman to have her trial. In fact, the attack on Harriet Miers. fairminded person, always open, majority stated if they had applied After Harriet Miers was withdrawn, doesn’t believe in discrimination. Alito’s analysis Title VII of the Civil who did they give us? Certainly, I I am troubled by his past member- Rights Act would have been evis- think in all of the United States of ship in that very conservative Con- cerated. America there was a qualified woman cerned Alumni for Princeton which There are many other cases in the who could have been nominated to Senator FRIST and other prominent area of civil rights and race relations I serve on the Court. It would have been Princeton alumni repudiated. But Alito find troubling, that show Judge Alito nice if we had taken the time to find didn’t. He boasted about his member- is not a moderate or a mainstream judge as he seem to suggest he was at one, but I don’t know if they were real- ship when he applied with the Reagan administration. That was the same the hearings. ly looking because if you seek you Then there is this issue of unchecked group that didn’t want women in shall find. Executive power. The Supreme Court is Princeton; women weren’t their kind. Who did the President nominate? the critical check on the other There are a lot of other decisions he Judge Alito. branches of government by making I want to be very clear at the outset: ruled on as a judge against people who sure that the checks and balances in I am going to vote to oppose the con- ‘‘just weren’t our kind.’’ He claims he the Constitution are maintained. In- firmation of Judge Alito, and I do so doesn’t remember that he was a mem- creasing Presidential power has been a for a variety of reasons. ber of this group, but he used it to get hallmark of this administration—not One, I don’t know who the real Judge a job. Now he doesn’t want to use it to just the recent discovery about spying Alito is. Is he the Judge Alito who, get this job. on Americans without warrants but when he applied for a job at the Reagan The third criterion I have is will the also secret meetings with energy com- Justice Department, pandered to every nominee protect core constitutional pany CEOs, preventing disclosure of right-wing cliche, message-driven focus values and guarantees that are central how executive decisions are made and group identified cause, attack affirma- to our system of government? so on. tive action, one person, one vote, and Based on his own statements and tes- When asked about whether or not all of that? Is that the Judge Alito we timony at the hearings, I have serious this President could ignore laws passed will have serving on the Supreme doubts about safeguarding civil rights, by Congress, Alito would only say no Court? He says, No, I wrote that be- the right to privacy, and equal protec- one is above the law. That was not an cause I was applying for a job. Hey, tion of the law for all Americans. That answer—that is an empty slogan. We what is he doing here right now in the is the bedrock of our democracy. We want to know how he would interpret confirmation process? He is applying are left to wonder if he will protect the scope of executive branch power. for a job. fundamental rights—the right to be During his time on the bench, Judge The process has occurred in the pub- free from unnecessary Government in- Alito has been very deferential to the lic and transparent arena. trusion. In the hearings, he had many executive branch. His answers suggest But who is he? Is he a so-called new, opportunities to let us know whether he will continue to be. We need a mem- moderate, mainstream, ‘‘Gee, I have al- he would secure those rights. ber of the Supreme Court who is part of ways been in the middle’’ kind of guy Then he didn’t clear up uncertain- the Court and not part of the executive or is he the person who applied to work ties. He didn’t clarify his record. He branch. We can’t afford to have the Su- at Reagan Justice Department whose didn’t candidly and completely answer preme Court duck its responsibility to writings validate his pattern of think- the key questions that would tell the check the executive branch. ing? American people where he stands on So I am troubled about his position. Judge Alito failed to answer too critical issues. With the hearings over I We are at a benchmark in our society many questions during the confirma- am still asking who is the real Judge and this is the time when we have to be tion hearing. Judge Alito refused to Alito? very clear on the executive powers and clarify his views and his philosophy. He First, let’s take the issue of civil prerogatives. has written many, many decisions as a rights. One of the most important civil Then there is the right to privacy. In Circuit Court Judge which are clearly rights is the right to vote. Yet Alito the area of the constitutionally pro- out of the mainstream. He failed to left me with serious doubts on what his tected right of privacy, it is unclear clarify his positions on the constitu- true views are. When applying for a job what Judge Alito believes the Con- tional right to privacy, other funda- in the Reagan administration, Alito stitution protects. Again, I go back to mental rights and settled law. It is also said he strongly disagreed with the the statements he made when he ap- unclear if he will be able to keep his Warren Court on legislative reappor- plied to work in the Reagan adminis- strong personal views from influencing tionment which became the bedrock tration. He was 35 years old, so he his decisions on the highest court of principle of one person, one vote. That wasn’t some kid who wasn’t sure about the land. In the end, Judge Alito failed Supreme Court decision changed the himself. He was exploring big theories to answer too many questions; he ap- face of America. It changed the face of and big ideas. He was 35 years old. He pears to be out of the mainstream. how districts were drawn up, and made was applying for a job at the Justice Let me tell you my criteria for decid- sure, therefore, that people truly could Department. You have to be a pretty ing on a Justice—actually on any be represented in legislative bodies. experienced professional to even think judge. He later said in the judiciary hear- you are qualified to apply for a job at First, is the nominee competent? ings that the one person, one vote doc- the Justice Department. He was sea- Judge Alito is competent. He has the trine is settled law. But he couldn’t ex- soned, and he was experienced, but he highest rating of the American Bar As- plain why he wrote the other state- also wrote in that application that he sociation. I listen to them very care- ment on his job application or why his was proud he would have argued that fully because we consider them an im- opposition to the Warren Court’s deci- the Constitution does not protect the portant advisory group that weighs in sions inspired him to go to law school. right to an abortion.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00032 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S67 Let me say these are his words, not the predators in our society, to be sure with snake eyes. Therefore, when my Senator MIKULSKI’s. Not only did he our Government itself does not become name is called in the United States take the position to eliminate the a predator on the ordinary citizen’s Senate for his nomination, I will vote rights in Roe v. Wade, he thought it privacy. These are big issues. no. was important that he emphasized it in So we are left to ask, Where was I suggest the absence of a quorum. his job application. Alito on the right to privacy? We do The PRESIDING OFFICER. The Now at the hearings he presents a not know. His answers and non-answers clerk will call the roll. different view. The key question for clearly suggest that he will not protect The legislative clerk proceeded to Judge Alito on the constitutionally this fundamental right. Issue after call the roll. protected right to privacy was whether issue leaves me with great concern. Mrs. CLINTON. Mr. President, I ask he considered Roe to be settled law. One last area of concern I want to unanimous consent that the order for Judge Roberts at his confirmation talk about is Judge Alito’s apparent the quorum call be rescinded. hearing said he believed Roe was set- predisposition to rule against ordinary The PRESIDING OFFICER. Without tled law. Repeatedly, Alito was also Americans. I look at the seat Judge objection, it is so ordered. asked at the hearings if he considered Alito has been nominated to replace. It Mrs. CLINTON. Mr. President, I asso- Roe to be settled law and if he agreed is a seat of moderation. Justice O’Con- ciate myself with the eloquent remarks with Judge Roberts. Alito refused to nor represented mainstream America. of the Senator from Maryland. Once say. He repeatedly refused to answer She understood as a justice for the again, she evidences the rare combina- how he would protect the fundamental highest court in the land that her deci- tion of high intellect, quick wit, and a and explicit right of privacy—implicit sions impacted real people and their savvy understanding of what is impor- right of privacy—in our Constitution. lives. Her decisions were not made in tant to the people she represents. He himself refused to clarify his pre- the abstract. Judge Alito has stated he The nomination of Judge Samuel A. vious dismissal of Roe v. Wade. looks at the facts of each case. Yet Alito, Jr., to the Supreme Court of the He refused to clarify also his position time and time again his decisions show United States is a matter of great, on why a woman should have to notify support for big business, for the execu- even monumental, importance to all— her husband in order to get an abor- tive branch but not so much for every- to our children and to future genera- tion, a requirement Justice O’Connor day Americans. A justice of the Su- tions of Americans. ruled was clearly unconstitutional. Nor preme Court must be able see through I have spent a lot of time in my State would he elaborate on what the right of abstractions and understand the role of over the last 2 weeks. I have traveled privacy actually includes over and the law in the lives of all Americans from one end of it to the other, from above reproductive rights. not just the powerful and influential. A Long Island to Buffalo. I have to say, What does it mean in general? Our justice must make the marble motto Judge Alito’s name is not on the lips of Constitution is a living and breathing over the Supreme Court ‘‘Equal Justice most of my constituents. They want to document. Twenty years ago when we Under the Law’’ a reality for all Ameri- talk to me about the complex and con- talked about the rights of privacy, we cans. That is also an important role for fusing Medicare prescription drug ben- didn’t know about the Internet, we every Supreme Court justice. Judge efit. They want to ask about the cul- didn’t know about data mining, we Alito’s opinions, writings and answers ture of corruption that seems to have didn’t know about the fact that we suggest to me that he does not under- taken over Washington under the Re- would have to have a national debate stand this role either. publican leadership. They have ques- on national security and the right to I have given careful consideration to tions about their health care which is privacy. Was it overreaching? When this nomination. I have carefully at risk, even if you are employed, or does the U.S. Government become the watched the Judiciary Committee the pensions which seem to disappear Grim Reaper, or what do they need to hearings. I may not be a member of the with regularity these days. They are do to protect us? These are real issues. Judiciary Committee, but I have paid concerned about the day-to-day, bread- They require real debate. They require close attention to the hearings and and-butter, table-top issues that we all independence in the judiciary to help watched them on C–SPAN. I went over live with. set the boundaries and the parameters his past writings, his decisions as a I say this vote we are going to take on what other branches of government judge and the testimony of others. in the Senate will end up having a can and can’t do. In the end, I have too many doubts great deal to do with how they live Don’t you as a citizen want to be pro- about what Judge Alito will mean on their lives, with the balance of power tected, when going to a library to bor- the Supreme Court, what he will mean within our country, with the quality of row a book, from somebody snooping for civil rights, our civil liberties, life and liberty and pursuit of happi- on you? If a citizen checks out a paper checks and balances on executive ness available to Americans. or a book because you want to know power, caused by what he said—and The Constitution commands the Sen- what the enemies of the United States even more by what he refused to say. I ate provide the President with mean- think about our way of life or philos- am concerned he is out of the main- ingful advice and consent on judicial ophy, for example, you check out books stream, that he is willing to say what nominations. I take this constitutional like ‘‘Mein Kampf’’ or ‘‘Das Kapital’’ he needs to say to get a job, that he is charge very seriously. I have carefully because you want to know what our en- an ideologue and that his personal reviewed the committee’s hearings and emies thought, so you could be pre- views will influence his decisions. It is Judge Alito’s extensive record. I have pared to refute them with your own not acceptable that Judge Alito has ex- met with the judge. I have spoken with ideas on democracy, you don’t want plained that he either forgot why he people who have strong opinions on the government spying on you. Yet, wrote something or that his early both sides of this nomination. I have what happens if something gets trig- writings were simply for a job applica- concluded I cannot give my consent to gered and something is sent over to the tion. What he believes is what he is. It his nomination to the Supreme Court. peepers at a Government agency about will shape the Supreme Court for the The way I read American history is what you are reading. next 20 years. that the key to American progress has Sure, we have to look out for terror- After careful review of the record be- been the ever-expanding circle of free- ists, but should every book checked out fore the Senate, I have too many dom and opportunity. That has been of a library trigger the government doubts, too many unanswered ques- the common thread through all periods spying on you? Do you want them lis- tions. Doubts about his commitment to of our history—greater rights and tening while you talk to your providing access to courts for Ameri- greater responsibilities of citizenship girlfriend? Do you want them moni- cans, ensuring appropriate checks and and equality. toring you and what church you go to? balances among the three branches of Each time we have made strides for- These are big questions we are facing government and the fundamental right ward, there have been vocal voices of as a nation. We need to have mindful to privacy. The Supreme Court nomi- opposition. There have been those who judges who help set the appropriate pa- nation is too important a decision to have wanted to go back. At those mo- rameters to protect citizens against roll the dice; I am afraid I will come up ments of profound importance to our

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00033 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S68 CONGRESSIONAL RECORD — SENATE January 25, 2006 country, the Federal courts have been When I ran for the Senate, I told New campaign to roll back these important the guardians of our liberties, have Yorkers that I would only vote for privacy rights. stood on the side of greater freedom judges who would affirm constitutional The extreme rightwing of the Repub- and opportunity. precedents, such as Roe and Brown and lican Party was up in arms when Presi- We all know the famous cases cited other landmark achievements and ex- dent Bush nominated Harriet Miers to as representing this forward march of panding rights and the reach of equal- the Court to replace Justice O’Connor. progress: Brown v. Board of Education, ity for all Americans. This is about It was quite a spectacle to see this which struck down the notion of sepa- more than rhetoric. This is very real. good woman, who had risen to the top rate but equal; Baker v. Carr, which in- The American people are counting on of her profession in Texas—not, I would validated discriminatory State voting us not to be a rubberstamp but count- imagine, an easy place to be the presi- apportionment schemes and paved the ing on us to make sure the President’s dent of a State bar and be the man- way for the concept of one man, one nominee will not take us backward. aging partner of a large law firm, but vote; Griswold v. Connecticut, which I also view this nomination through had done so by dint of hard work and recognized a right to privacy in the the prism of the Justice that Judge intelligence—be turned on by members Constitution; Roe v. Wade, which es- Alito will replace. I have not always of her own party because they could tablished that women have a right to agreed with Justice Sandra Day O’Con- not be sure she would agree with them choose. nor. But she has shown, throughout her no matter what the facts or cir- We need judges who will maintain career of distinguished service to the cumstances. Their reaction to Judge that forward progress. Despite his dis- Court that one Justice makes a big dif- Alito’s nomination, in contrast, has tinguished academic credentials, Judge ference. One Justice can protect our been enthusiastic, effusive, even ec- Alito has not shown himself to be that constitutional rights. Justice O’Connor static. Why? Because they know ex- kind of judge. He does not have the is a true conservative, a mainstream actly what they are getting. dedication to civil rights or women’s jurist. She appreciated the advance- Judge Alito’s constrained views have rights or the right to privacy that I be- ments we have made as a society be- not been limited to issues of privacy. lieve we need in the next Supreme cause she lived them. Anyone who has While on the Third Circuit, he has rare- Court Justice. ever read her autobiography about this ly sided with individuals seeking relief Time and again, when given the little cowgirl growing up on a ranch in from discrimination on the basis of choice, he has voted to narrow the cir- Arizona, going off to school, eventually race, age, gender, or disability. In fact, cle, to restrict the rights Americans going to Stanford Law School, grad- in the vast majority of civil rights hold dear. Now is not the time to go uating near the top of her class and cases, Judge Alito has sided with those backward. who would infringe on the civil rights Without the progress we have made being unable to find a job simply be- of Americans. For example, in several in the past 230 years, without that ex- cause she was a woman does not only dissents, he has called for curtailing pansion of the circle of equality and intellectually understand why our his- what is called title VII of the Civil freedom and opportunity, I certainly tory is about moving forward and re- Rights Act of 1964, the landmark stat- would not be standing here, nor would moving the obstacles to God-given ute prohibiting discrimination against a number of my colleagues. There human potential, she feels it. She un- women and minorities in the work- would be no opportunities for women in derstands it. public life. Time and time again, she showed she place. But mine is hardly the only example. appreciated the advancements we have These individual views, as manifested Voting rights would be restricted. made as a society. She has fought to by his writings, his work in the Gov- Equal opportunities in education and ensure they continue. Her vote was ernment, and his opinions on the in the workplace would not exist. And often the defining vote on which key bench, are even more troubling because none of us would have a constitutional civil liberties and rights rested. She ex- he seems to favor Executive power so right to privacy. Simply put, our Na- ercised it with care and independent much over the other branches of Gov- tion would not be what it is today. judgment. ernment. So I also fear he will not re- Our greatest strength has always Any fair reading, in my view, of spect the system of checks and bal- been our commitment, generation after Judge Alito’s record does not dem- ances that our Founders so carefully generation, with some fits and starts, onstrate that same independence of set out in the Constitution. No one who to enlarging the circle of rights and judgment, nor does it illustrate a has read the Federalist Papers or the equality. That great American com- grasp, either intellectual or emotional, debate that our Founders had when mitment has made us a beacon of free- of the day-to-day struggles that tens of constructing the Constitution or who dom around the world. This nomina- millions of Americans face. On the con- understands the historical context in tion could well be the tipping point trary, Judge Alito proudly announced which our Declaration of Independence against constitutionally based free- his personal opposition to a woman’s and our Revolution occurred could un- doms and protections we cherish as in- right to choose early in his career in derestimate the importance they dividuals and as a nation. I fear Judge the now infamous 1985 job application placed on having three truly inde- Alito will roll back decades of progress for a position in the Reagan adminis- pendent and equal branches of Govern- and roll over when confronted with an tration. Although he has tried to dis- ment. administration too willing to flaunt tance himself from the comments he The Founders understood human na- the rules and looking for a made in that document, his time on ture. They got it. They knew that un- rubberstamp. The stakes could not be the bench shows an unapologetic effort checked power would lead to abuses. higher. to undermine the right to privacy and And we have seen some of that right To be sure, Roe v. Wade is at risk, a woman’s right to choose. here in Washington over the last 5 the privacy of Americans is at risk, en- I believe, and I have said so for many years. They realized that we had to vironmental safeguards, laws that pro- years, abortion should be safe, it check and balance against power cen- tect workers from abuse or negligence, should be rare, but it should be legal. I ters in order to bring out the better laws even that keep machine guns off understand it is a difficult and even ‘‘angels’’ of our nature, but also to the streets—all these and many others tragic choice for many women. It is a keep a watch on each other. are in peril. decision of conscience. Therefore, it I do not believe, after reviewing I don’t believe millions of Americans should be a constitutionally protected Judge Alito’s record, he understands or are aware of that yet. This debate is decision made not by the Government, respects this central principle to the carried on in Washington. It is at a not by the majority—whoever the ma- way America is set up. He has sought high level of legalisms and debates jority might be—but between a woman, to expand the power and purview of the about jurisprudence and the meaning her doctor, and her faith in God. executive branch at nearly every turn, of the Constitution. But I am confident Judge Alito does not share this view. while simultaneously stripping Con- the Supreme Court will have a dra- And I think we can be certain that, gress of its authority and curtailing matic effect on our Nation and on what freed from the constraints of Supreme the rights enjoyed by private citizens. we believe America stands for. Court precedent, he will intensify his For example, while working for the

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00034 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S69 Reagan administration, he made the this position—chosen free of racial or sions. When applying for a position in the argument that Cabinet officials who gender prejudice. He has also narrowly Reagan administration in 1985, Alito stated are charged with authorizing illegal construed other constitutional crimi- he was ‘‘particularly proud’’ of his work on nal procedure protections, arguing cases arguing ‘‘that the Constitution does wiretaps of Americans in this country not protect a right to an abortion.’’ A memo should be entitled to absolute immu- often in favor of granting law enforce- released later shows that Alito told his boss nity. At a time when this President ment officials the greatest of latitude that two pending cases provided an ‘‘oppor- and his political party stand accused of to conduct unauthorized searches and tunity to advance the goals of overruling political overreaching and abuse of seizures. Roe v. Wade and, in the meantime, of miti- power, we must demand from our judi- Judge Alito’s opinions on these and gating its effects.’’ These are not the actions ciary a respect for the proper role of many other topics remind us that judi- of someone simply trying to please his boss, each of our three branches of Govern- cial activism comes in many guises. but proud convictions that we have no rea- Adopting an unnecessarily narrow view son to believe have altered in the past two ment. But Judge Alito’s excessive def- decades. erence to Presidential authority, cou- of the Constitution or of our laws to Also troubling is his proud touting of his pled with his restrictive view of con- reach a desired outcome is a form of ju- membership in a conservative Princeton gressional authority, tells me he does dicial activism that is no less offensive alumni group that complained about the ad- not have the proper reverence for sepa- than subscribing to an overboard inter- mission of women and the number of minor- ration of powers. pretation of the law in order to reach a ity students on the elite college campus. What is worse is that in supporting specific result. How will Judge Alito deal with educational opportunity and Title IX? How will Judge the expansion of the reach of Presi- Judge Alito, if confirmed, may hold a seat on the Supreme Court for a gen- Alito deal with pay equity and workplace dential power, Judge Alito also holds a policies as well as affirmative action and job harshly limited view of what the Gov- eration—long after this President has benefit issues that disproportionately affect ernment can or should do to help ordi- left office. Perhaps through 8 to 10 women? How will Judge Alito deal with chal- nary Americans. Judge Alito said it all Presidential elections, decades of lenges to federal legislation guaranteeing in 1986, when he was a young lawyer progress would fall prey to his radical disability rights, lesbian and gay rights, and with the Reagan administration. He ideology, jeopardizing not only civil freedom from domestic and sexual violence? wrote that in his estimation, it is not rights, civil liberties, health and safety We believe he will rule on the side of nar- and environmental protections, but rowing our freedoms and barring our redress the role of the Federal Government to in court. protect the ‘‘health, safety and wel- also fundamental rights such as the Please consider all of these issues as you fare’’ of the American people. Well, I right to privacy. Our Federal Govern- review Samuel Alito’s fitness to serve on our guess that explains the inept, slow, and ment could be transformed into one highest court in the land. Based on his dangerous response to Hurricane where Congress is largely irrelevant record, he will not come down on the side of Katrina. If you are not responsible to and the President is permitted to make fairness and equality for all. We ask that you protect the health, safety, and welfare, up the rules as he goes. I do not believe vote against his nomination. Judge Alito’s vision of that America is Sincerely, why should you be held accountable KIM GANDY, when people suffer, when their Govern- what our Founders intended for us. He President. ment leaves them neglected without would take us backward, when it has any help? never been more important to move LEGAL MOMENTUM; Judge Alito has long advocated a forward together. Washington, DC, January 10, 2006. limited congressional authority view. I sincerely hope my concerns about Senator ARLEN SPECTER, Now, if that were adhered to, it would Judge Alito are unfounded, but I sus- Chairman, Committee on the Judiciary, U.S. Senate undermine a whole host of civil rights pect they are not, and our children and grandchildren will pay the price. He Senator PATRICK LEAHY, protections, health and safety regula- Ranking Member, Committee on the Judiciary, tions, standards for protecting our air has not demonstrated a proper respect U.S. Senate and water, food and drug quality regu- for the rule of law, our Constitution, CHAIRMAN SPECTER AND SENATOR LEAHY: lations, laws regulating firearms as and the principles, freedoms, rights, Legal Momentum, the nation’s oldest wom- well as vital programs such as Social and privileges that Americans hold en’s legal rights organization, opposes the Security, Medicare, and Medicaid. most dear. I, therefore, cannot give my confirmation of Judge Samuel Alito as Asso- Since his appointment to the Third consent to his confirmation. ciate Justice to the Supreme Court of the United States. Throughout his career he has Circuit, Judge Alito has aggressively Mr. President, I ask unanimous con- sent that letters written to Senators pursued legal approaches that raise ques- sought to promote this theory of lim- tions about his ability to respect the balance ited congressional power. In 1996, he SPECTER and LEAHY opposing this nom- of power between the three branches of gov- voted to invalidate parts of our Federal ination be printed in the RECORD. ernment. Judge Alito defers to agency deci- gun laws, arguing there was no evi- There being no objection, the mate- sions in many settings, while showing skep- dence in the record to determine that rial was ordered to be printed in the ticism toward individual litigants’ claims, Congress had the power under the Con- RECORD, as follows: appears to support a narrow view of civil stitution’s commerce clause to enact NATIONAL ORGANIZATION FOR WOMEN, rights, prisoners’ rights, and workers’ rights, appears willing to uphold legislative restric- legislation that regulated the sale of Washington, DC, December 13, 2005. DEAR SENATOR, NOW is strongly opposed to tions on the right to privacy and is willing machine guns. In another case, Judge the elevation of Judge Samuel Alito to the to limit congressional power while showing Alito wrote an opinion striking down Supreme Court of the United States, and excessive deference to the executive branch. Congress’s right to make a State agen- with every passing day more information ap- This agenda poses a danger to an inclusive cy comply with the Family and Med- pears that reconfirms our opposition. We society, and a representative democracy ical Leave Act. And just 3 years later, urge you to review his record, writings and with constitutionally required checks and the Supreme Court, with a similar set judicial philosophy and join us in opposing balances that serves the needs of the whole of facts, reached precisely the opposite his nomination. electorate. The legacy of conservative cen- Not only is NOW disappointed that Presi- trist, Justice Sandra Day O’Connor, deserves conclusion. dent Bush has proposed to replace Justice a replacement that does not rule based on The PRESIDING OFFICER. The Sen- Sandra Day O’Connor with yet another white political considerations, but can fairly and ator’s time has expired. male ultra-conservative, but we are deeply justly interpret the laws and Constitution of Mrs. CLINTON. Mr. President, I ask disturbed by the twenty-year track record the United States. unanimous consent for 5 more minutes. that places Judge Alito on the far right of Judge Alito’s available record reveals a ju- The PRESIDING OFFICER. Is there the judicial spectrum, especially when it dicial philosophy that would undermine crit- objection? comes to women’s and civil rights. If Samuel ical civil and privacy rights and protections. Without objection, it is so ordered. Alito is confirmed by the U.S. Senate, many In his public statements, he speaks about the Mrs. CLINTON. In several criminal of our fundamental rights will be at great restrained role of judges. Put into practice, cases, Judge Alito has shown blatant risk and could well be lost entirely. however, these views translate into higher A bedrock principle for NOW is full Con- burdens for plaintiffs seeking to vindicate disregard for a defendant’s funda- stitutional rights for women and at the their rights, deference to states or institu- mental right to be tried by an impar- heart of that equality is self determination tional defendants and employers, and limits tial jury—what any one of us would for women when they deal with their repro- on the ability of Congress to require certain want if we or a loved one were ever in ductive health care and childbearing deci- conduct from states. For example, Judge

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Alito often favors a restrictive reading of the abortion restrictions to undermine, if not ELIMINATING RACISM law, which results in the narrowest interpre- overrule, Roe v. Wade. After leaving the Ad- EMPOWERING WOMEN, tation of civil rights. Thus, individuals may ministration and becoming a judge on the Washington DC, January 10, 2006. be unable to enjoy the full reach of these Third Circuit, he wrote a dissent in Planned Hon. ARLEN SPECTER, protections at crucial times. Stressing the Parenthood of Southeastern Pennsylvania v. Chairman, need for judicial restraint and discouraging Casey, arguing to uphold burdensome re- Hon. PATRICK J. LEAHY, judges from legislating from the bench, he strictions and hurdles aimed at women seek- Ranking Member, Committee on the Judiciary, has used these themes as a means to limit ing an abortion. The Supreme Court ulti- U.S. Senate, Washington, DC. access to the ability of individuals to have mately rejected his position, but he once DEAR CHAIRMAN SPECTER AND RANKING their day in court. And, he frequently argues again underscored a desire to place new lim- MEMBER LEAHY: On behalf of the YWCA USA, to constrain the power of the courts and the its on a woman’s ability to make her own re- representing over 2 million women and girls power of Congress, with regard to binding productive health decisions. with 300 associations nationwide, I am writ- states. The end result is that individuals, Judge Samuel Alito’s rulings on Ameri- courts, and Congress have less ability to hold ing to write to express our opposition to the cans’ privacy rights extend even further his confirmation of Judge Samuel A. Alito, Jr. states accountable to ensure compliance support for increased power for the executive with the law and remedy legal violations. to the Supreme Court of the United States. branch. As a lawyer in the Solicitor Gen- Judge Alito has taken a very restrictive His views are not consistent with the value eral’s Office in 1984, Alito wrote a memo sup- approach in employment discrimination of equality that our country holds dear, nor cases, resulting in few successes for plain- porting absolute immunity from civil liabil- are they consistent with the YWCA USA tiffs. In Bray v. Marriott, he would have let ity for cabinet officials who authorized ille- mission of eliminating racism and empow- stand an employer’s decision not to promote gal wiretaps of Americans due to national se- ering women. Over the past 50 years the Su- an African American female employee even curity concerns. Later, he co-authored a preme Court’s jurisprudence has often served though there was considerable evidence of brief to the Supreme Court in which the gov- to protect the fundamental constitutional irregularities in the hiring and interview ernment argued for absolute immunity—an rights of all Americans. After closely exam- process. Judge Alito argued in dissent that argument rejected by the Supreme Court. In ining his record, the YWCA USA has con- the employer’s failure to follow its own rules contrast, Justice O’Connor, writing for an 8– cluded that if Judge Alito were to replace was not sufficient to prove discrimination 1 majority in the case of American-born de- Justice O’Connor on the Court, this protec- against the plaintiff. For him, the employ- tainee Yaser Esam Hamdi (Hamdi v. Rums- tion would likely halt and in fact reverse er’s argument that the plaintiff was not the feld), in which the court ruled that an Amer- with regard to individual rights. Judge best qualified should have been accepted at ican citizen seized overseas as an ‘‘enemy Alito’s record reveals a history of troubling face value. In contrast, the majority con- combatant’’ must be allowed to challenge decisions in the areas of civil rights, civil cluded there were enough questions about the factual basis of his or her detention, said liberties, and fundamental freedoms. The the employer’s motives and conduct to allow the Court has ‘‘made clear that a state of YWCA USA is extremely concerned that the the plaintiff her day in court. Moreover, the war is not a blank check for the president confirmation of Judge Alito to the Supreme majority chided Judge Alito’s analysis for ef- when it comes to the rights of the nation’s Court would be harmful for women and peo- fectively eviscerating the antidiscrimination citizens.’’ ple of color. purposes of the law, by accepting the em- After becoming a judge, Alito wrote in sev- If Judge Alito were confirmed, he has the ployer’s reasoning without adequate review eral opinions that would have extended the potential to change the direction of the to determine whether racial bias influenced reach of search warrants for the executive court and devastate the rights of women. For the hiring decision. They stressed that what branch. In a dissenting opinion in Doe v. example, in the landmark case Planned Par- mattered was not whether the company was Groody, he argued that police officers did enthood of Southeastern Pennsylvania v. seeking the ‘‘best’’ candidate, but ‘‘whether not violate the Constitution when they strip- Casey, Judge Alito concluded that it was not a reasonable factfinder could conclude that searched a mother and her ten year-old an ‘‘undue burden’’ for a married woman Bray was not deemed the best because she is daughter, despite the fact that neither was seeking an abortion to have to notify her Black.’’ In his fifteen years on the bench, named in the search warrant. The majority husband, a position that the Supreme Court Judge Alito has almost never ruled for Afri- opinion, written by now-Homeland Security later struck down. This case raises key ques- can-American plaintiffs in employment dis- Secretary Michael Chertoff, asserted that tions about whether, if confirmed to a seat crimination cases. The Supreme Court de- Judge Alito’s position would effectively nul- on the Supreme Court, Alito would vote to serves a Justice that is willing to consider lify the Fourth Amendment’s warrant re- overturn Roe v. Wade. Furthering the YWCA the full circumstances of the case at hand, quirement and ‘‘transform the judicial offi- USA’s concerns, about whether Judge Alito ´ not deny plaintiffs their right to be heard. cer into little more than the cliche rubber would seek to strip away women’s reproduc- While Congress has made efforts to protect stamp.’’ In another dissent, in Baker v. Mon- tive freedoms, are his own words. As a law- workers who need time off work to care for roe Twp., Judge Alito voted to keep a jury yer in the Reagan administration, Samuel a sick family member or to heal from a long- from hearing whether a police supervisor un- Alito wrote, that he ‘‘personally believed’’ term illness, Judge Alito would make it lawfully allowed his officers to handcuff, that ‘‘the Constitution does not protect a harder for workers to challenge state em- hold at gunpoint and search a woman and right to an abortion.’’ In addition, during his ployers for violating the Family & Medical her teenage children who happened to stop tenure with the Solicitor General’s Office he Leave Act. In Chittister v. Department of by to visit the home of a relative in the was one of the chief engineers of a multi- Community and Economic Development, midst of a search. tiered, strategy to reverse Roe V. Wade. Judge Alito wrote for a Third Circuit panel Alito’s stance on executive branch powers Alito wrote that an amicus brief in that the state of Pennsylvania was immune is further revealed in a Feb. 5, 1986 draft Thornburgh v. American College of Obstetri- from lawsuits by state workers alleging vio- memo where he argued that the White House cians and Gynecologists was an ‘‘opportunity lations of the FMLA’s medical leave provi- should issue ‘‘interpretive signing state- to advance the goals of bringing about the sions. The decision effectively insulated the ments’’ when signing a bill into a law, and eventual overruling of Roe v. Wade and, in state from FMLA, claims, and undermined that courts might be persuaded to consider the meantime of mitigating its effects.’’ the ability of workers to access medical this ’executive intent’ equally with legisla- While it is impossible to know for certain leave when needed. Meanwhile, Justice tive intent. The balance of power between how Alito would rule in a particular case be- O’Connor, who Judge Alito would replace, the three branches is imperiled when White fore the Supreme Court, these statements voted to uphold a key provision of the Fam- House interpretation is accorded equal along with Judge Alito’s past opinions make ily and Medical Leave Act. If the Supreme weight with congressional support. it difficult to believe that he would effec- Court adopted Judge Alito’s views, millions tively uphold the fundamental freedoms of of workers could lose their ability to vindi- In conclusion, Judge Alito has consistently women. The rights, health, and safety of cate their rights under the Family & Medical articulated legal opinions that are outside women are too important to the YWCA USA Leave Act. the mainstream, that undermine legal pro- Judge Alito’s record strongly indicates tections against employment discrimination, to justify this risk. that he would question the constitutional that distorts the law in favor of extending The YWCA USA is also concerned with right to privacy and undermine existing power to the executive branch, and that re- Judge Alito’s record on civil rights and af- Court precedent on the issue. In a 1985 job sorts to judicial activism, blatantly ignoring firmative action. It is quite troubling that application, he touted his work on Reagan the clear intention of the legislature to push Samuel Alito touts his work as a lawyer in Administration-era cases which argued that his arch-conservative political agenda. the Reagan administration opposing certain the Constitution does not protect a right to Therefore, we urge you to oppose his nomi- affirmative action programs as something he an abortion—a position with which he indi- nation to the U.S. Supreme Court. Was ‘‘particularly proud’’ of. One example of cated he personally agreed. In a memo- If you have any further questions, please Alito’s work against affirmative action dur- randum discussing the strategy for the gov- contact Lisalyn Jacobs at Legal Momentum, ing the Reagan administration is the case of ernment’s amicus brief in a pending case in- (202) 326–0040. Local 28 of the Sheet Metal Workers’ Inter- volving a Pennsylvania abortion regulation, Sincerely, national Association v. EEOC. Alito and the he stressed the importance of finding a way LISALYN R. JACOBS, Solicitor General’s office argued that it was to give states maximum latitude to adopt Vice President for Government Relations. illegal for courts to order remedies including

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Indeed, taken as a the extraordinary theory that relief in Title Alito is out of step with mainstream Amer- whole, his publicly available record—both VII cases could be granted only to ‘‘identifi- ica in the area of discrimination. from his government service and his tenure able victims of discrimination,’’ contra- Finally, it is important to look at the on the Third Circuit—illustrate a judicial dicting an earlier view of the Equal Employ- make-up of the court. Given the role that philosophy at odds with AAUW’s Public Pol- ment Opportunity Council (EEOC) itself. The Justice O’Connor plays on the court, it is icy Program. For all these reasons, AAUW Supreme Court rejected Alito’s argument, necessary to review Judge Alito not only on has opposed the confirmation of Judge Alito stating that affirmative action relief ‘‘may his merits but also in the context of whom to the U.S. Supreme Court. be ordered by a court as a remedy for past he will be replacing on the bench. Justice AAUW believes it is more important than discrimination even though the beneficiaries O’Connor has added an important, inde- ever to ensure the moderate balance of the may be non-victims.’’ Furthermore, in the pendent and unique voice to the Supreme U.S. Supreme Court by confirming a justice 1970s and 1980s Alito was a member of Con- Court. As the first women to sit on the na- who reflects mainstream America. Decades cerned Alumni of Princeton (CAP), an orga- tion’s highest court, she has broken barriers of progress for women and girls hang in the nization that actively sought to limit the for women not only by blazing a trail but balance. Further, given that Judge Alito has number of women and minorities accepted to also by providing a voice and a vote on the been nominated to replace the often-deciding the university. In contrast, Justice O’Connor Court for all women. Indeed, time and again vote of Justice Sandra Day O’Connor, this cast the decisive vote in Grutter v. on those issues that affect civil rights, and nomination has much at stake. AAUW is Bollinger, upholding affirmative action in women’s rights, including reproductive free- concerned that the confirmation of a poten- higher education. If Judge Alito’s views on doms, Justice O’Connor is the deciding fifth tially extremist justice would turn back the affirmative action were to replace Justice vote. Numerous laws have been shaped and clock on decades of progress for women and O’Connor’s on the Supreme Court, institutes upheld by this 5 to 4 margin. Thus it is im- girls. Two key areas in particular have led to throughout the country would be harmed. portant to evaluate not only if Judge Alito is AAUW’s opposition to Judge Alito’s con- Eliminating this important tool for pro- qualified to sit on the Supreme Court, but firmation: moting diversity would deny universities, also if he will protect and honor the legal Equal opportunity and legal protections workplaces and other organizations the en- and social legacy of the woman he would be against discrimination: Judge Alito has a lightenment provided by a greater variety of replacing. troubling record on a range of civil rights The concern that Alito would overturn backgrounds. issues, revealing a philosophy that would well-established legal principles and social In addition to a restrictive approach to- weaken workplace protections that are cen- achievement in the areas of women’s rights wards affirmative action, Judge Alito’s tral to addressing discrimination against and civil rights, that the YWCA has worked record strongly questions the legitimacy of women. A number of Judge Alito’s opinions to protect for almost 150 years, is too great employment discrimination claims, and in a would make it harder for employees to win to ignore. That is what his record indicates number of instances, Judge Alito issued their suits or even get their case to trial. and furthermore, during his confirmation opinions that made it far more difficult for Judge Alito has also demonstrated opposi- hearing he stated, ‘‘If I’m confirmed . . . I’ll victims of discrimination to get to court and tion towards affirmative action, dismissed be the same person I was on the Court of Ap- prove their cases. Again, this is an area constitutional protections against sexual peals.’’ For these reasons, the YWCA USA where Justice O’Connor has often been the harassment in schools, and aggressively feels that Judge Alito’s confirmation to the swing vote in protecting and advancing civil sought to curb congressional authority to Supreme Court would negatively impact the rights. In contrast, Alito has ruled against legislate on issues such as family and med- lives of women and people of color and there- three of every four people who claimed to ical leave. In several of these cases, U.S. Su- fore is urging you to reject the nomination have been victims of discrimination. preme Court decisions have later espoused of Judge Samuel Alito to the United States In one such gender discrimination case, views opposite to those put forward by Judge Supreme Court. Senators must stand up and Sheridan v. E.I. Dupont de Nemours, Alito Alito, showing him to be far outside the protect the rights of the people they rep- was the sole dissenter in a 10–1 decision; ar- mainstream. resent by voting against Alito’s lifetime ap- guing that he would require victims of dis- Reproductive rights and approach to prece- pointment to the Supreme Court. The nation crimination to present much more evidence dent: Judge Alito has actively rejected a has come too far in the fight for equality and before they would be entitled to take their woman’s constitutional right to choose, sup- worked too hard to protect the rights of all case to trial. Were this position adopted ported limits on abortion, and consistently individuals. more broadly, it would make it much more upheld limits to this fundamental right. Sincerely, difficult for victims of discrimination to While Judge Alito has been careful to stress PEGGY SANCHEZ MILLS, have their day in court and remedy these ac- YWCA USA CEO. the importance of stare decisis, his recogni- tions of prejudice. In another employment AMERICAN ASSOCIATION OF tion of the importance of precedent is not a discrimination case, this one dealing with UNIVERSITY WOMEN, predictor that he would follow the principle race, Alito went even further than upping Washington, DC, January 9, 2006. if confirmed. As a member of the nation’s the level of evidence needed for a trial stat- Hon. ARLEN SPECTER, highest court, the obligation to follow set- ing that even if discrimination occurred it Chair, Senate Judiciary Committee, Dirksen tled law is different. Since Judge Alito may not be against the law. In Bray v. Mar- Senate Office Building, Washington, DC. helped develop the strategy for undermining riott Hotels, Ms. Bray, an African-American Hon. PATRICK LEAHY, women’s reproductive rights, it stands to woman, applied for a promotion but a white Ranking Member, Senate Judiciary Committee, reason that Roe v. Wade and related cases woman was hired for the job instead. Her em- Dirksen Senate Office Building, Wash- maintaining the right to privacy could fall ployer, Marriott, did not follow its own ington, DC. within the exceptions Judge Alito has set for guidelines for hiring and several of the key DEAR SENATORS: On behalf of the more himself regarding adherence to stare decisis. employees involved in the process gave con- than 100,000 bipartisan members of the Amer- As you know, the Senate has few constitu- flicting statements about how the decision ican Association of University Women tional duties more significant than that of to hire the white woman was ultimately (AAUW), we write to express our opposition advising on and consenting to U.S. Supreme made. Judge Alito argued in his dissent that to the confirmation of Third Circuit Court of Court nominations. AAUW believes you it might not be illegal for an employer to Appeals Judge Samuel A. Alito, Jr. to be as- should confirm only a nominee that exhibits overlook a qualified person of color even if sociate justice of the United States Supreme the impartiality and independence that are the employer’s belief that it had selected the Court. As the Senate Judiciary Committee so critical to this third, co-equal branch of ‘best’ candidate was the result of conscious opens its confirmation hearings today, you our government. racial bias.’’ The majority opinion responds will be faced with critical questions and, ul- No nominee is presumptively entitled to to this analysis by noting that Title VII timately, a critical decision that will affect confirmation. After a thoughtful review of would be eviscerated if the analysis were to the balance of the nation’s highest court— his well-established judicial philosophy, halt where the dissent suggests. In addition which will in turn impact the everyday lives AAUW cannot conclude that Judge Samuel to the troubling interpretation of Title VII, of generations to come. A. Alito, Jr. is the appropriate choice for a Alito’s dissent demonstrates skepticism After a careful review of Judge Alito’s lifetime position on the U.S. Supreme Court. about the legitimacy of discrimination record, including 15 years of appellate opin- AAUW urges senators to reject Alito’s nomi- claims. He closed his dissent with the dis- ions, AAUW finds him to be a troubling nation and let their votes be a true measure turbing pronouncement that a percentage of choice with red flags in areas critical to our of their commitment to equity for women discrimination cases are manufactured by mission and membership, including work- and girls. disgruntled employees, rather than victims place discrimination, reproductive choice, Sincerely, of discrimination. This shows a lack of sensi- and affirmative action. Judge Alito’s appel- LISA M. MAATZ, tivity about the on-going national problem late judgments provide little reassurance Director, Public Policy and of discrimination in the workplace. In con- that he would apply the law in ways that Government Relations.

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NATIONAL COUNCIL OF that state governments did not have to com- session of machine guns, arguing in a dis- WOMEN’S ORGANIZATIONS, ply with provisions of the Family and Med- senting opinion in United States v. Rybar Washington, DC, January 11, 2006. ical Leave Act. Women have fought hard that Congress did not have the authority to Senator ARLEN SPECTER, over the last four decades, against resist- enact the statute under the Commerce Chairman, Committee on the Judiciary, U.S. ance, skepticism and backlash, to win funda- Clause of the Constitution. Judge Alito’s Senate. mental rights. If confirmed, Judge Alito will Third Circuit colleagues, and eight other cir- Senator PATRICK LEAHY, be in a position to undermine our gains for cuit courts to date, have disagreed with him. Ranking Member, Committee on the Judiciary, generations to come. We urge you to stand In another case, Chittister v. Department of U.S. Senate. firm for women’s rights and reject this nomi- Community and Economic Development, CHAIRMAN SPECTER AND SENATOR LEAHY: nation. Judge Alito wrote an opinion that barred The National Council of Women’s Organiza- Sincerely, state employees from suing for damages tions, the oldest and largest coalition of the SUSAN SCANLAN, when their employers violate their right to nation’s women’s groups, urges the Senate to Chair take medical leave under the Family and reject the nomination of Samuel Alito to the TERRY O’NEIL, Medical Leave Act (FMLA). A 6-3 majority of United States Supreme Court. Judge Alito’s Executive Director. the Supreme Court, including even Justice extreme position on a range of issues, includ- Rehnquist, subsequently upheld another pro- ing reproductive rights, workplace discrimi- NATIONAL WOMEN’S LAW CENTER vision of the FMLA against a similar chal- nation and violence against women, make Washington, DC, January 9, 2006. lenge on the ground that the FMLA was en- him the wrong choice to replace retiring Jus- Hon. ARLEN SPECTER, Chair, acted to address sex discrimination in the tice Sandra Day O’Connor. Hon. PATRICK J. LEAHY, Ranking Member, workplace. Judge Alito gave short shrift to In nominating Samuel Alito after Harriet Senate Committee on the Judiciary, Dirksen this argument. Myers withdrew from consideration, Presi- Senate Office Building, Washington, DC. Judge Alito has ruled to make it more dif- dent Bush chose to put political expediency DEAR CHAIRMAN SPECTER AND SENATOR ficult for plaintiffs to prove discrimination. Judge Alito’s opinions in employment dis- ahead of the rights and well-being of this na- LEAHY: On behalf of the National Women’s tion’s women and girls. Mr. Bush’s right- Law Center, an organization that has worked crimination cases raise significant concerns. wing base clamored for rejection of Ms. since 1972 to advance and protect women’s For example, he dissented from Sheridan v. Myers because, as conservative as she is, legal rights, we write to reiterate the Cen- E.I. DuPont De Nemours and Company, a sex they felt she was not 100 percent pure on ter’s opposition to the nomination of Samuel discrimination case in which all 10 of the their issues. Samuel Alito, however, is ap- A. Alito, Jr. to the United States Supreme other members of the Third Circuit joined in parently their man. Court. As a result of its extensive review of reversing the trial court’s rejection of a jury Judge Alito has a long record dem- Judge Alito’s record, the Center has con- verdict for the plaintiff. Judge Alito ignored onstrating hostility to women’s reproductive cluded that the confirmation of Judge Alito applicable legal standards to urge over- rights. In the 1980’s, he repeatedly advocated to the Supreme Court would endanger core turning the jury verdict, inappropriately the overturning of Roe v. Wade. In the 1990’s, legal rights for women, with profound and credited the employer’s explanations for its as an appellate judge, he argued to uphold a harmful consequences for women across the actions, and, standing in for the jury, Pennsylvania statute requiring women to country and for decades to come. This letter downplayed the plaintiff’s evidence. Alito notify their husbands before having an abor- summarizes the basis for the Center’s con- also dissented in Bray v. Marriott Hotels, a tion—a position rejected by Justice O’Con- clusions, which are set forth more fully in race discrimination case, and again would nor’s 5–4 opinion in Planned Parenthood v. the Center’s December 8, 2005 letter and de- have prevented the plaintiff from bringing Casey. Nowhere in his writings, however, tailed report. her case before a jury by giving the employer does he express any concern that the days of Judge Alito has worked to limit a woman’s the benefit of the doubt. The majority said back-alley abortions could return if women right to choose. While in the Solicitor Gen- that under his approach to the evidence, do not have safe, legal means to terminate eral’s office, Alito urged the government to ‘‘Title VII [of the Civil Rights Act of 1964] unwanted pregnancies. Nor have we been file an amicus brief in Thornburgh v. Amer- would be eviscerated.’’ Judge Alito’s publicly available record able to find any statement of concern, in any ican College of Obstetricians and Gyne- does not reveal his views on the constitu- of his writings, for women’s fundamental cologists in order to ‘‘advance the goals of tional protection against sex discrimination right to be in control of their own reproduc- bringing about the eventual overruling of under the Equal Protection Clause of the tive health decisions. Roe v. Wade and, in the meantime, of miti- Fourteenth Amendment. But in his 1985 job Indeed, Judge Alito has even expressed gating its effects.’’ His memo argued in favor application he expressed support for at least hostility to contraception. In 1985, as a Jus- of upholding even the most burdensome and some of the central legal tenets of the tice Department attorney, he wrote that dangerous barriers to abortion. Alito then Reagan Administration, and the Justice De- some forms of birth control are volunteered to work on the government’s partment under Attorney General Ed Meese ‘‘abortifacients,’’ and saw no constitutional Thornburgh brief, and researched and wrote favored the ‘‘originalist’’ approach to con- problem with a state law restricting wom- key portions. The Court rejected the brief’s stitutional interpretation advocated by Rob- en’s access to them. Extreme anti-abortion extreme positions—it struck down dangerous ert Bork, which would permit almost any organizations have long argued that the IUD burdens on the right to choose the brief had gender-based distinctions in law or govern- and some birth control pills are argued to uphold, and it refused to overturn ment policy. Judge Alito’s views in this area ‘‘abortifacients’’—subject to the same kinds Roe v. Wade as the brief had urged. In plain must be carefully explored at his confirma- of restrictions that may be placed on wom- reference to his role in the Thornburgh case, tion hearing. en’s access to abortion—because they may Alito later wrote: ‘‘I am particularly proud Throughout his career, Judge Alito has prevent a fertilized egg from becoming im- of my contributions in recent cases in which taken positions and issued rulings detri- planted on the uterine wall. This view runs the government has argued in the Supreme mental to women in other areas of the law, counter to accepted medical understanding, Court . . . that the Constitution does not including through his membership in an or- which is that pregnancy does not begin until protect a right to an abortion.’’ He wrote ganization that was openly hostile to the ad- after implantation. Yet it is the view em- this in an application for a promotion a few mission of women and minorities to his alma braced by Samuel Alito. months after the Thornburgh brief was filed. mater, Princeton; his participation in cases Judge Alito’s opinions demonstrate an Judge Alito’s record on the Third Circuit where the Solicitor General argued against abiding deference to the powerful at the ex- reinforces the concerns about his approach affirmative action policies; his vote to up- pense of ordinary people. He has argued, in to the right to choose. In Planned Parent- hold a strip search of a woman and her ten- cases such as Sheridan v. DuPont and Bray hood v. Casey, he not only would have upheld year-old daughter, even though they were v. Marriott Hotels, for erecting higher and a law requiring married women to notify not named in a search warrant, in Doe v. higher procedural hurdles that would pre- their husbands before having an abortion, Groody, his opinion in Sabree v. Richman vent victims of employment discrimination but took an approach to the law that would strongly suggesting that if he were to join from being able to present their case to a eviscerate Roe v. Wade by upholding many the Supreme Court, he would change the law jury. He argued, in Doe v. Groody, to uphold dangerous barriers to the right to choose. to limit, and potentially preclude, the abil- a police strip search of a woman and her ten- For example, he failed to focus on women ity of individuals to enforce federal rights year-old daughter even though they were not who would be hurt by the restrictions (such such as rights to Medicaid, public housing, named in the search warrant and were sim- as victims of domestic abuse), and would child support enforcement, and public assist- ply at home when the house was searched. He have given husbands the same kind of con- ance; and his denial of an asylum claim by ruled, on all but one issue, against a female trol over their wives’ most personal deci- an Iranian woman who asserted that if she police officer who was subjected to two years sions that parents have over their children. returned to Iran she would be persecuted for of pervasive sexual harassment in Robinson A majority of the Supreme Court, in an opin- her feminist beliefs. v. City of Pittsburgh. He has repeatedly ion co-authored by Justice O’Connor, sound- This is a watershed moment for women’s criticized affirmative action policies, and ly rejected his analysis. legal rights. In recent years, the Supreme struck down a school district’s affirmative Judge Alito has ruled to limit Congress’s Court has decided cases affecting women’s action plan in Taxman v. Board of Edu- authority to protect public safety and wel- legal rights by narrow margins. Justice San- cation. He ruled, in Chittister v. Dept. of fare. Judge Alito would have struck down a dra Day 0’Connor, the first woman on the Su- Community and Economic Development, federal law prohibiting the transfer and pos- preme Court, often has cast the decisive vote

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00038 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S73 in these cases. With the retirement of Jus- partment, the questions unanswered in tions that went un-answered, that the tice O’Connor, the Court will lose not only the hearings, the cases he has decided, he will have a detrimental effect. its first female Justice, but also the Justice where studies have shown a pattern of President Bush had the opportunity to whose vote often has been pivotal on issues nominate someone who would have critical to women. Judge Alito’s record dem- willingness to ignore our Constitu- onstrates that if he is confirmed to the Su- tional rights and deny people access to united the country. He could have preme Court, he is likely to eviscerate core our court system, for all of these and nominated somebody who would have rights that American women rely upon, and for other compelling reasons, I oppose received 100 votes or 98 votes. He chose shift the Court in a dangerous and harmful this nomination. not to do this, which is his right. We direction. Based on the information avail- In the past, in the 22 years I have all understand. We have heard the ar- able at this time, as summarized above, we been here, like many of my colleagues, gument about the consequence of elec- conclude that Judge Alito should not be con- I have voted for Federal court nomi- tions. The fact is, he chose not to do firmed to the Supreme Court. nees despite the fact I disagreed with that. Sincerely, The way in which this nomination NANCY DUFF CAMPBELL, them ideologically. I have voted, I am MARCIA D. GREENBERGER, confident, literally hundreds of times. came to us in the Senate tells us a Co-President. In fact, I voted for Justice Scalia be- huge amount what this nomination Mrs. CLINTON. Mr. President, I yield cause despite our ideological dif- really means. The President was under the floor. ferences, in the confirmation process fire from his conservative base for The PRESIDING OFFICER (Mr. MAR- he promised to be openmindedness that nominating Harriet Miers, a woman TINEZ). The Senator from Massachu- we have not seen in the Court. whose judicial philosophy was unmer- setts. So we have learned the hard way. cifully attacked. President Bush, in the Mr. KERRY. Mr. President, obvi- The words of the confirmation hearings end, broke to those extreme rightwing ously, today we face one of the most simply do not erase ideology, they do demands. This was an ideological coup. important choices we make as Sen- not erase a track record. And that ide- Miers was removed and Alito was in- ators. This is a choice, as colleagues ology cannot be overlooked because a stalled. The President didn’t consult have said, that is going to affect the Justice’s decisions can and will have a with the Senate, as required by the country for the next several decades. profound impact on the rights that we Constitution. He gave more thought to To replace Justice Sandra Day otherwise take for granted. what the political needs were than to O’Connor, the President has nominated So something more is needed. A Su- what the country’s needs were. Indeed, a man who has consistently deferred to preme Court Justice needs to under- he made this nomination about his po- Government action regardless of how stand and have a record of respecting litical base. He made it about an ideo- egregious that action may be. He has the constitutional rights and liberties logical shift in the Court. He made it nominated a man whose pattern of de- which we confirm them to uphold. He about unassailable conservative cre- cisions erects rather than breaks down or she needs to recognize the impor- dentials and an unimpeachable con- barriers in the area of civil rights; a tance of precedent and the limited sit- servative judicial philosophy. man who, to this day, has never re- uations in which overruling is accept- If you want proof of that, all you treated from his declaration that the able. have to do is look at the comments of Constitution does not protect a wom- He or she needs to appreciate the sig- people such as Ms. Ann Coulter. We all an’s right to privacy; a man who has nificant struggles that our Nation has know Ms. Coulter is capable of being as demonstrated a persistent insensitivity endured in the context of racial, sex- inflammatory and conservative as any- to the history of racial discrimination ual, and disability discrimination and one in the country, often engaging in in this country and was even, at the to be aware of the road still to be trav- character assassination. She denounced Government’s request, willing to ig- eled. And that awareness of the road the nomination of John Roberts. She nore overwhelming evidence that Afri- still to be traveled has to be evidenced attacked the nomination of Harriet can Americans were intentionally in the decisions and writings of that Miers, calling her completely unquali- stricken from an all-White jury in a nominee. In short, ideology does mat- fied and lamenting that President Bush Black defendant’s capital case. ter. The Supreme Court’s ideologically had ‘‘thrown away a Supreme Court Judge Alito has been nominated to driven decisions have been the most re- seat.’’ Yet she celebrated the nomina- fill the seat, as we know, of an indi- grettable in our Nation’s history, deci- tion of Sam Alito, stating that Bush vidual who has been the Court’s swing sions such as Korematsu, Dred Scott, gave the Democrats a ‘‘right hook’’ vote; a woman who has upheld affirma- and Plessy v. Ferguson. with this ‘‘stunningly qualified’’ nomi- tive action programs; a woman who In fact, ideology matters more in this nee. This from a woman who said that upheld the right to choose; a woman nomination than it would in many oth- the Republicans need to nominate a who upheld State employees’ rights to ers. We are replacing Sandra Day person who ‘‘wake[s] up every morning the protections of the Family Medical O’Connor, President Reagan’s nominee . . . chortling about how much his lat- Leave Act; a woman who recognizes to the Supreme Court, the person who est opinion will tick off the left.’’ that a declaration of war is not a blank has occupied the center of balance on Failed Supreme Court nominee Rob- check for the President’s actions; a the Court. She has been the deciding ert Bork had a similar reaction. He de- woman who decides each case narrowly vote in critical cases involving and de- nounced the Miers nomination as ‘‘tak- on the facts presented, keenly aware of fining our constitutional rights and ing the heart out of a rising genera- the greater impact that her decisions liberties. As we contemplate ripping tion’’ of conservative constitutional have. that center out from under the Court, scholars and ‘‘widen[ing] the fissures So this is the contrast. We are being we have to understand what the impact within the conservative movement.’’ asked to confirm a nominee who will of that action will be. Yet he praised Alito’s nomination as shift the ideological balance of the Given how high the stakes are, our ‘‘substantially narrowing’’ that rift. In Court dramatically to the right. And decision simply cannot be based on fact, he called the nomination some- many people are cheering for that. whether Judge Alito is a smart man or thing to ‘‘rejoice’’ because if Alito were We are being asked to confirm a whether he is a nice man or whether he confirmed, it would only take ‘‘one nominee whose views will undermine a is an accomplished man or even wheth- more Justice of the Roberts-Scalia- balance of power that I believe, and er he is well respected in legal circles. Thomas-Alito stripe to return the many others believe, literally keeps He is all of those things. But what we Court to so-called jurisprudential re- our country strong, a balance of power need to consider is the impact that a spectability.’’ that helps to bring people together Justice Alito will have on the Court Let’s not forget conservative stal- rather than divide them, that helps to and whether that impact is good for wart Pat Buchanan who denounced the apply the Constitution to people in all our country, good for our Constitution, Miers nomination as revealing the walks of life, not simply those with and good for the American people. President’s lack of desire ‘‘to engage power and privilege. I believe, based on his track record, the Senate in fierce combat to carry For the reasons of this track record: the decisions already made, the out his now suspect commitment to re- the of his writings in the Justice De- writings already expressed, the ques- make the Court in the image of Scalia

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00039 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S74 CONGRESSIONAL RECORD — SENATE January 25, 2006 and Thomas.’’ Apparently, Mr. What is the practical impact of these seems to view this theory as a blank Buchanan believes that the Alito nomi- decisions? Simple: They keep victims check for Executive overreaching. nation demonstrates the President’s of discrimination from having their Judge Alito’s endorsement of the uni- change of heart. He heralded the nomi- day in court. tary executive theory is not the only nation as one that would unite and If it is not enough to see this kind of cause for concern. In 1986, while work- rally the base, a nomination for the insensitivity toward the victims of dis- ing at the Justice Department, he en- base, not the country. crimination evidenced in those judicial dorsed the idea that Presidential sign- They say you can tell a lot by some- opinions, in his 1985 job application to ing statements could be used to influ- body’s friends. These three individuals President Reagan’s Justice Depart- ence judicial interpretation of legisla- are consistently on the furthest edge of ment, Judge Alito wrote that his inter- tion. His premise was that the Presi- the ideological spectrum. Their posi- est in constitutional law was driven in dent’s understanding of legislation is tions rarely advance the interests of part by a disagreement with Warren just as important in determining legis- average working folk in America. So Court decisions on reapportionment, lative intent as Congress’s, which is ab- perhaps it should come as no surprise decisions which established the prin- solutely startling when you look at the that these folks have jumped to sup- ciple of one person, one vote. And he history of legislative intent and of the port Judge Alito. said that he was ‘‘particularly proud’’ legislative branch itself. President After reviewing more than 400 of of his work to end affirmative action Bush has taken the practice of issuing Judge Alito’s opinions, law school pro- programs. signing statements to an extraor- fessors at Yale concluded: Judge Alito’s hostility to individual dinarily new level. Most recently, he In the area of civil rights law, Judge Alito rights isn’t limited to civil rights. He used a signing statement to reserve the consistently has used procedural and evi- consistently excuses government intru- right to ignore the ban on torture that dentiary standards to rule against female, sions into personal privacy, regardless Congress overwhelmingly passed. He minority, age, and disability claimants. . . . of how egregious or excessive they are. also used signing statements to at- Judge Alito seems relatively willing to defer In Doe v. Groody, for example, he dis- tempt to apply the law restricting ha- to the claims of employers and the govern- sented from an opinion written by beas corpus review of enemy combat- ment over those of advancing civil rights then-Judge Michael Chertoff because ants retroactively, despite our under- claims. he believed that the strip search of a standing in Congress that it would not Similarly, a Knight Ridder review of 10-year-old was reasonable. He also affect cases pending before the Su- Judge Alito’s opinions concluded that thought the Government should not be preme Court at the time of passage. Judge Alito ‘‘has worked quietly but held accountable for shooting an un- The signing statements have been resolutely to weave a conservative armed boy who was trying to escape used to specifically negate or make an legal agenda into the fabric of the Na- with a stolen purse or even for forcibly end run around very specific congres- tion’s laws’’ and that he ‘‘seldom sided evicting farmers from their land in a sional intent. The implication of Presi- with a criminal defendant, a foreign civil bankruptcy proceeding where dent Bush’s signing statements are ab- national facing deportation, an em- there was no show of resistance from solutely astounding. His administra- ployee alleging discrimination, or con- those farmers. He believed a show of tion is reserving the right to ignore sumers suing big business.’’ force from the enforcers was reason- those laws it doesn’t like. Only one After reviewing 221 of Judge Alito’s able. thing can hold this President account- opinions in divided cases, the Wash- This pattern of deference to power is able, and it is called the Supreme ington Post concluded that Judge Alito reinforced by a speech he gave as a sit- Court. Given Judge Alito’s endorse- is ‘‘clearly tough minded . . . having ting judge to the Federalist Society ment of the unitary executive and his very little sympathy for those assert- just 5 years ago. consistent deference to government ing rights against the government.’’ In that speech, Judge Alito power, I don’t think Judge Alito is pre- The pattern is clear, and I think it is ‘‘preached the gospel’’ of the Reagan pared to be the kind of check we need. unacceptable. administration’s Justice Department, Reining in excessive government power I don’t think you should put some- the theory of a unitary executive. And matters more today to the average body on the Court who makes access to though in the hearings Judge Alito at- American than perhaps at any recent justice in the United States harder and tempted to downplay the significance time in our memory, as we work to try more elusive for people who already of this theory by saying it didn’t ad- to provide a balance between pro- face incredible obstacles when trying dress the scope of the power of the ex- tecting our rights and our safety. As to have their voices heard in court. I ecutive branch but, rather, addressed Justice O’Connor said: The war on ter- don’t think we should put somebody on the question of who controls the execu- ror is not a blank slate for government the Court who will fail to serve as an tive branch, don’t be fooled. The uni- action. We can and must fight that in effective check on excessive Executive tary executive theory has everything a manner consistent with our Constitu- power. to do with the scope of Executive tion. If this pattern is not enough, as has power. Last but certainly not least, I have been described by others, then all we to In fact, even Stephen Calabresi, one grave concerns about Judge Alito’s have to do is look at some individual of the fathers of the theory, has stated ability and willingness to protect a cases. In Sheridan v. E.I. duPont De that ‘‘[t]he practical consequences of woman’s right to choose. In his 1985 job Nemours and Company, Judge Alito the theory are dramatic. It renders un- application, Judge Alito wrote that he wrote a lone dissent opposed by all of constitutional independent agencies was ‘‘particularly proud’’ of his work the other judges on the court, eight of and councils.’’ That means that Con- arguing before the Supreme Court that whom were Republicans. His opinion gress would lose the power to protect ‘‘the Constitution does not protect a would have made it more difficult for public safety by creating agencies like right to abortion.’’ Now, all of us know victims of discrimination to sue their the Consumer Products Commission, this is an extraordinarily complicated employers. which ensures the safety of products on issue. I don’t know anybody here who Applying a similarly high standard of the marketplace, or the Securities and is pro-abortion. But we are in favor of proof, one that the majority believed Exchange Commission which protects the right of people individually to would eviscerate the protections of Americans from corporations such as make that choice for themselves rather title VII, Judge Alito dissented from a Enron. And who would gain the power? than having the Government make decision to allow a racial discrimina- The Executive, the President. that choice for them. And, the fact is tion claim to go to trial in Bray v. Carried to its logical end, the theory that the Constitution protects that Marriott Hotels. goes much further than simply invali- right. These are all cases where people were dating independent agencies. The Bush Yet, in 1985, Judge Alito wrote a trying to have their rights adjudicated, administration has already used this memo outlining a strategy for chipping and disagreeing with his colleagues, in- theory to justify its illegal domestic away at Roe v. Wade, an approach he cluding Republican-appointed judges, spying program and its ability to tor- believed would be more successful than Judge Alito said no. ture detainees. The administration asking for an outright reversal. In his

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00040 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S75 hearings, Judge Alito stated these stand what was settled law and what and oppose the confirmation of Judge Alito statements were accurate reflections of was not. I believe he failed to carry as the next U.S. Supreme Court Justice. his views in 1985. But what is more dis- that burden. I believe if he moves the Sincerely, turbing is what he refused to say. He Court in the direction that I think he Louise M. Slaughter, Tammy Baldwin, Lois Capps, Jane Harman, Barbara Lee, refused to say his views have changed, will—I hope I am proven wrong, but if Doris O. Matsui, Juanita Millender- that he accepted Roe v. Wade as settled he moves it far to the right, then I McDonald, Hilda L. Solis, Corrine law, which even Chief Justice Roberts think that those rights and values Brown, Rosa L. DeLauro, Eddie Bernice did during his confirmation hearings. which we cherish so deeply will be set Johnson, Carolyn B. Maloney, Betty In other words, Judge Alito refused to back and the country will move back- McCollum, Gwen S. Moore, Grace F. give any assurances that his concept of wards with them. Napolitano, Linda T. Sa´ nchez, Ellen O. the Constitution’s protected liberty is Mr. President, I ask unanimous con- Tauscher, Diane E. Watson, Jan Scha- consistent with mainstream America’s. kowsky, Debbie Wasserman Schultz, sent that letters to Senator LEAHY and Nydia Vela´ zquez, Lynn Woolsey. I realize Judge Alito has promised he Senator SPECTER in opposition to this is going to keep an open mind, but I nomination from the Women’s Caucus, don’t think any of us can be reassured CONGRESS OF THE UNITED STATES, Black Caucus, and Hispanic Caucus all HOUSE OF REPRESENTATIVES, by those words. We heard those very be printed in the RECORD at this time. Washington, DC, January 6, 2006. same words before. Justice Thomas re- There being no objection, the mate- Hon. ARLEN SPECTER, peatedly told the Judiciary Committee rial was ordered to be printed in the Chairman, Committee on the Judiciary, U.S. he would keep an open mind on this RECORD, as follows: Senate, Hart Senate Office Building, Wash- issue. But we all know that once safely ington, DC. CONGRESS OF THE UNITED STATES, on the Supreme Court, Justice Thomas Hon. PATRICK LEAHY, Washington, DC, January 9, 2006. Ranking Member, Committee on the Judiciary, voted to overturn Roe v. Wade months Hon. ARLEN SPECTER, later, writing a dissent in Casey that U.S. Senate, Russell Senate Office Building, Chairman, Senate Committee on the Judiciary, Washington, DC. likened abortion to polygamy, sodomy, Dirksen Senate Office Building, Wash- incest, and suicide. Given Justice ington, DC. DEAR CHAIRMAN SPECTER AND RANKING MEMBER LEAHY: As you examine the nomina- Thomas’s success, you can almost Hon. PATRICK J. LEAHY, Ranking Member, Senate Committee on the Ju- tion of Judge Samuel Alito to the United imagine Karl Rove whispering to Judge States Supreme Court, we ask that you con- Alito: Just say you have an open mind; diciary, Dirksen Senate Office Building, Washington, DC. sider the particular implications that Judge say whatever it takes. Alito’s confirmation would have on the DEAR CHAIRMAN SPECTER AND RANKING We cannot rely on these empty plati- Latino community. MEMBER LEAHY: As women Members of Con- tudes, and we obviously cannot rely on gress who work hard to enact legislation and We are deeply disappointed that President any promises of open-mindedness given promote policies that protect women and en- Bush did not take this third opportunity to to the Judiciary Committee, particu- sure equality within our society, we fear our nominate a qualified Latino to the Supreme larly when they are absent an acknowl- work, and the contributions of our col- Court. Given the size of the Hispanic commu- edgment of what is or what is not a set- leagues who served before us, will be disman- nity in the United States, the under-rep- resentation of Hispanics in the judiciary and tled law, particularly when the nomi- tled with the confirmation of Judge Samuel Alito to the U.S. Supreme Court. the abundance of Hispanics qualified for ap- nee’s entire professional history sug- pointment, it is difficult to comprehend the gests something very different, and We believe that Judge Alito poses a direct threat to the rights of women in America. As President’s decision other than in the harsh particularly when the past promises of the attached memorandum details, Judge light of political factors trumping all other that very nominee have already been Alito has a long record of extreme views on considerations. rendered meaningless by his actions women’s reproductive health, sexual and We do not need to stress to you the impor- once safely on the bench. In Judge workplace discrimination, the Family Med- tance of this nomination and the impact Alito’s 1990 Judiciary Committee hear- ical Leave Act and civil rights. He has that the Court has on the lives of our citi- ings, he promised that he would recuse worked to thwart established precedent and zens. We are equally confident that you un- has affiliated himself with radical organiza- derstand the critical role that the Supreme himself in any cases involving the Van- Court has played in safeguarding the rights guard Company given his ownership of tions that have actively sought to keep women and minorities from advancing edu- of minorities. Oftentimes it is the Court to Vanguard mutual funds. In his Su- cationally and economically. which minorities must turn for protection preme Court hearings, he admitted he Under the scrutiny of the nomination proc- from discriminatory laws and practices. It is could not remember having put Van- ess, it is not surprising that Judge Alito now therefore important that nominees are sen- guard on his permanent recusal list. disavows his positions on issues important to sitive to the experiences and struggles that We know it did not appear on his 1993, women and families in order to secure con- minorities have faced in securing their con- 1994, 1995, or 1996 list. So how do we firmation votes. But his record speaks to his stitutional rights. know he kept his word to the Judiciary true views and it speaks loudly. Rather than While Judge Alito’s background and record Committee? We don’t. How can we offering a balanced successor to the mod- on the bench have been largely discussed in erate views of Justice Sandra Day O’Connor the public forum his opportunity to explain trust him now? We can’t. his opinions and philosophy will come during I am deeply concerned about where and the majority of this nation, Judge Alito’s nomination radically tips the scales the confirmation hearings. Like all Ameri- we are heading with this ideological of justice against women. cans, we deserve and expect clear answers on choice for the Court. I am deeply con- As guardians of the Constitution, Supreme his record both on and off the bench, as cerned about maintaining the integrity Court Justices play a key role in protecting many of his opinions and writings give us of our constitutional rights and lib- and ensuring our liberties. They are given reason to be concerned. In order to better erties. I fear that the most disadvan- life tenures and are expected to stay above gauge his current attitudes, we respectfully taged in our society be locked out of the political fray so their decisions will be request that you consider asking Judge Alito fair and unbiased. They must judge cases the attached questions or questions similar our system of justice, a system that is to these during the confirmation hearings in already becoming increasingly harder with impartiality and open mindedness, and they must respect settled law. the Senate Judiciary Committee. for them to access. I fear that the You have a responsibility to ensure that While we should not expect any Supreme President’s powers will grow beyond the highest court is not stacked against the Court justice to consistently rule in a man- what the Framers intended them to be, hard fought rights that protect women ner that we agree with, we hope that the suc- and I fear that Congress’s hands will be across the country. When you consider the cessor to Justice Sandra Day O’Connor will tied even further and we will be unable nomination of Judge Alito to the U.S. Su- share her tradition of being fair, open-mind- to do the work of the American people. preme Court, we hope you will reflect on the ed and unbiased towards any specific group. Therefore, I cannot and will not vote milestones in women’s rights and determine Thank you for taking these views into con- to confirm a nominee who will shift the that America cannot afford to abandon these sideration as you proceed with fulfilling your Court in this ideological way. I believe fundamental protections. We encourage you constitutional duty to provide advice and that Judge Alito had the burden of to review the attached memorandum which consent on Judge Alito’s nomination. details many of the disturbing examples of Sincerely, proving not just to me, but to the Judge Alito’s extreme views of women’s GRACE F. NAPOLITANO, American people, that he would not be rights in law. We urge you to consider that Chair, Congressional Hispanic Caucus. a Justice who would move the Court this lifetime appointment will have detri- CHARLES A. GONZALEZ, far to the right, that he would under- mental consequences for American women, Chair, CHC Civil Rights Task Force.

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CONGRESSIONAL HISPANIC CAUCUS QUESTIONS a high-level government official and after civil rights complainants, Pittsburgh police TO SUPREME COURT JUSTICE NOMINEE JUDGE Judge Alito and the Administration failed to officers who sued alleging reverse discrimi- SAMUEL A. ALITO, JR. respond to our request for a meeting with nation, and in another he ruled in favor of a A. RACIAL (ETHNIC) DISCRIMINATION: the nominee. Unfortunately, nothing tran- mentally disabled employee. Alito’s hostility PEMBERTHY V. BEYER, 19 F.3d 857 (3D CIR. 1994) spired at the hearings before the Judiciary to discrimination cases could not be more Committee to change our view that Judge Facts: Alito wrote majority opinion allow- systematic, carrying over to claims against Alito should not be confirmed. ing ‘‘peremptory challenges’’ by the prosecu- the disabled as well, where the Third Circuit If the Senate values its own work on fed- criticized his dissent that would allow ‘‘few tion of bilingual prospective jurors because eral statutes in many areas of American life, of concerns that ability to understand Span- if any’’ Rehabilitation Act plaintiffs access it will find unacceptable Judge Alito’s record to the courts (Nathanson v. Medical College ish would jeopardize jurors’ acceptance of of- as a frequent dissenter in commerce clause ficial translations of tape recorded conversa- of Pennsylvania). and other cases involving of long established Considering the distance the Nation has tions. congressional authority to enact laws bene- come on race and the distance still to go, in Question: This holding would provide a ve- fiting Americans of every background. For our view the confirmation of Judge Alito hicle for striking jurors based on ethnicity example, his dissent in United States v. would mark a dangerous step backwards. In (i.e., Latinos more likely to speak Spanish) Rybar, in which he unsuccessfully sought to our view, no one who reads his opinions can under the guise of ‘‘language concerns’’. Why restrict congressional authority to regulate believe that he has the open mind required of isn’t this unconstitutional as it relates to machine guns, is an example of a dangerous a Supreme Court justice. Judge Alito moved the prospective juror being struck (depriva- retrenchment that could have far-reaching from his days in the Reagan Justice Depart- tion of right to serve on jury, participate in consequences for many kinds of federal legis- ment, where he sought unsuccessfully to get government)? Why isn’t this unconstitu- lation that have long been considered well the Supreme Court to restrict discrimination tional as to the defendant per Batson prece- within congressional power. remedies, to the Third Circuit, where he has dent? However, the CBC is most especially con- compiled a striking record as a dissenter, B. VOTING RIGHTS ACT: JENKINS V. MANNING, 116 cerned that Judge Alito’s record on matters rather than follow employment discrimina- F.3d 685 (3D CIR. 1997) of race reflects a consistent pattern of hos- tion precedents. Facts: The issue was the ‘‘at-large’’ elec- tility to race discrimination cases and rem- The evidence is too clear to leave any tion of school board members. After revers- edies. This pattern places at extreme risk doubt about where Judge Alito would stand, ing and remanding the District Court’s rul- important work of the Supreme Court and for example, on fragile 5–4 rulings in which ing that no violation of the VRA took place, the Congress to eliminate discrimination in Justice O’Connor has been the deciding vote. the District Court considered additional evi- voting, employment and other critical areas Among these cases are the University of dence and again found no violation. Judge in which Judge Alito’s dissents have left lit- Michigan case upholding affirmative action Alito appears to have joined the majority in tle doubt about his views. If he is promoted in law school admissions (Grutter v. affirming the District Court’s ruling. Judge to the Supreme Court, where stare decisis is Bollinger) and other cases where the Court Rosen’s dissent is insightful and a good ex- less constraining and where his views are no has allowed race to be considered as a factor ample of a judge’s exercise of discretion in longer subject to reversal, his dissents can be to rectify discrimination. As we approach re- viewing the same evidence and reaching a expected to become the law of the land. In authorization of the Voting Rights Act in decision that gives meaning to the VRA. that case, we have no doubt that racial 2007, the Congressional Black Caucus cannot Question: The ‘‘Senate Factors’’ (after progress would be reversed, especially in afford to forget that the 5–4 cases also in- finding Gingles factors present) were addi- light of the delicate 5–4 balance that has ex- clude redistricting cases such as Hunt v. tional and necessary considerations and con- isted on the Court. We, therefore, believe Cromartie. sisted of (1) the extent to which minority that a vote for Judge Alito would radically A critical election year of accountability group members had been elected to public of- change the Court and lead to an erosion of 50 for the Congress must begin with how mem- fice in the jurisdiction and (2) the extent to years of jurisprudence on matters of race and bers of the Senate vote on this nominee. All which voting in the elections of the political equality. Our country moves in that direc- that we have fought for in order to secure subdivision is racially polarized. Judge Alito tion at its peril. rights long denied African Americans is put We find extremely troubling the consist- found that the Senate Factors were met at risk by this nomination. For African ency and predictability of Judge Alito’s when historically only 3 of 10 black can- Americans, the stakes don’t get any higher. hard-right views in an area that has been so didates over a 10 year period were successful Therefore, the members of the CBC are ask- critical to African Americans and where his (one in a never-repeated plurality win and ing you and all of your colleagues to vote views could become the decisive vote. The one by a black candidate defeating another against the confirmation of Judge Alito. best evidence that Judge Alito is a judge of black candidate). Would Judge Alito please Sincerely, extreme views is the often strongly critical elaborate on his ‘‘judicial philosophy’’ when MELVIN L. WATT, written opinions of his judicial colleagues. it comes to VRA and ‘‘at-large’’ voting dis- Chair, CBC. Faced with Supreme Court precedents up- tricts? ELEANOR HOLMES NORTON, holding remedies for discrimination, Judge CBC Judicial Nominations Chair. C. IMMIGRANT RIGHTS: 1986 DEPUTY ATTORNEY Alito has sought instead to close the Federal GENERAL ALITO MEMO TO FBI DIRECTOR WIL- courts to job discrimination claims by using Mr. KERRY. I yield the floor and I LIAM WEBSTER unprecedented technical evidentiary stand- suggest the absence of a quorum. Facts: The memo reflects Judge Alito’s ards long rejected by the Supreme Court. For The PRESIDING OFFICER. The legal analysis that ‘‘. . . illegal aliens have 40 years in an unbroken record of thousands clerk will call the roll. no claim to nondiscrimination with respect of job discrimination cases, the Supreme The assistant legislative clerk pro- to non-fundamental rights.’’ Court and every federal circuit have left no ceeded to call the roll. Question: In light of Plyler v. Doe, 457 U.S. doubt that discrimination claims must not Mr. SANTORUM. Mr. President, I 67 (1982), how does he reconcile his conclu- be prematurely destroyed by requiring sig- ask unanimous consent that the order sions that appear to be based on the 1976 case nificant upfront evidence before trial. Con- of Matthews v. Diaz, 426 U.S. 67 (1976), obvi- sequently, all the Third Circuit judges in an for the quorum call be rescinded. ously a case decided PRIOR to Plyler? Does en banc review in Sheridan v. E.I. DuPont de The PRESIDING OFFICER. Without he follow precedent only when convenient? If Nemours and Company criticized Judge objection, it is so ordered. he is not willing to follow existing precedent Alito, the only dissenter, for seeking to ele- Mr. SANTORUM. Mr. President, I (is there any other kind?), then it would ap- vate the standard necessary for a woman, rise today to give my full support to pear that if he is able to establish ‘‘prece- who alleged her employer failed to promote Judge Alito to be an Associate Justice dent’’ (that’s what the Supreme Court does), her, to even get access to the Federal courts of the Supreme Court. I am sure that he will do it readily and easily. to attempt to prove discrimination. will be no great surprise to those who Undeterred, the next year in Bray v. Mar- have followed my career. CONGRESSIONAL BLACK CAUCUS, riott Hotels, Judge Alito was similarly ad- RAYBURN BUILDING monished by the Circuit’s majority in a ra- I want to lay out in brief why I be- Washington, DC, January 17, 2006. cial discrimination case in which a hotel em- lieve Judge Alito is exactly the kind of Hon. PATRICK LEAHY, ployee was denied a promotion. In sharply Justice this country needs at this time U.S. Senate, criticizing Judge Alito, the majority said and, candidly, is exactly the kind of Washington, DC. that if they followed his lead, ‘‘Title VII [the Justice this country, for the most part, DEAR SENATOR LEAHY: On December 8, 2005, basic job discrimination statute] would be has had, in keeping with its constitu- the Congressional Black Caucus (CBC) an- eviscerated.’’ tional traditions over the last 200-plus nounced its opposition to the confirmation Habitually attempting to use procedural of Judge Samuel Alito to the United States technicalities to get around precedents, years. Supreme Court. We announced this decision Judge Alito has been a virtually automatic Judge Alito is not from Pennsyl- prior to the Senate Judiciary Committee’s vote to deny discrimination claims in 14 of vania, although he claims to be a confirmation hearings after making an ex- the 18 job discrimination cases he has consid- Phillie fan, which is fine by me. I some- tensive review of his record as a judge and as ered. In one of the cases, he favored white what prefer the Pirates, being from

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00042 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S77 Pittsburgh. I certainly respect him. He but based on whether you like the ously highly intelligent, battling wits comes from the Third Circuit, which plaintiff, or you like the defendant, or with some of the best minds in the Sen- includes the Commonwealth of Penn- what is a sympathetic figure on one ate. During this process, both privately sylvania. I have had an opportunity to side or the other—that is about the and publicly, he has been gracious. He talk to many of his colleagues on the worst kind of justice you can possibly is, again, someone I am very proud to court, Republicans and Democrats. acknowledge. support. Both Republicans and Democrats—ev- My colleagues who say he rules for If I can, for a moment, talk again eryone I have spoken to, and I have the big guys or the big corporations, or about where we are in the context of spoken to several—have praised him in whoever it is, are you saying every ac- the role of the judiciary in our demo- the highest terms possible. Colleagues tion that comes before the Court where cratic process. We often talk about the of his have stepped forward and have a little guy is in a case, he automati- tyranny of the judiciary—many on our used terms of respect you don’t often cally should win? Is that what it is? If side of the aisle do—how the judiciary hear. Unfortunately, you don’t often you are not a judge who rules for the has run amok in its ever-unceasing hear it around this body—certainly not little guy all the time, is it true that quest to take responsibilities and deci- lately—but you certainly heard it from somehow you don’t have a proper view sions away from the elected demo- them both privately and publicly, say- of the law? This is a remarkable discus- cratic bodies of our country and hoist ing how much integrity the man has, sion I keep hearing. I heard over and it onto the backs of the Supreme Court how much his legal acumen is right on, over again in the Judiciary Committee or the courts in our country. That is a as are his demeanor, jurisprudence, and about the result of these cases and who very dangerous precedent we have seen humility—all of the things one would he sides with. Is that somehow a point over the last 30 and 40 years in our want to see out of a judge, and they which is legitimate when it comes to a courts, that increasingly decisions are speak in glowing terms about him. So judge? The question is, is he an appel- being made by the judicial system and, that was my introduction to him. late jurist who was following the law? in so doing, barring the House, the Sen- I had never met Judge Alito prior to Was he properly applying the law to ate, and the President from regulating his nomination. When he was nomi- the case? It is not who won or lost the or legislating in that area in the fu- nated, one of the first things I did was case. I find it very disturbing that we ture, in a sense making these sub- call some of his colleagues. I did it to are reducing this confirmation process stantive decisions as to how we should get a sense of the kind of man he was. to whose side he ruled on and whether live our lives, how our economy will The response I received was over- ideologically he fits a particular Sen- function, how our laws will be written whelming. ator’s view of a particular issue or par- across the street in an unelected body One of the things I want to cover is ticular issues. That is not how we have as opposed to how the democratic proc- how I believe that his view of the role ever viewed Justices in the Senate. We ess works—to have the people’s collec- of a judge is very similar to John Rob- do not keep scorecards of whether you tive will reflected in their laws. erts’ view of the role of a judge. In fact, side with the little guy or big guy or One of the reasons I think these his record, in my opinion, and the way how you came down on cases. We cer- nominations are so important and he approaches the law is remarkably tainly have not had ideological litmus maybe so contentious is because we are similar to the judge who is now a Jus- tests in the past on judicial nomina- at a point right now where there has tice confirmed here in the Senate by tions. been a movement for many years to by- 70-plus votes. I am somewhat at a loss Those two things, I have to tell you, pass the democratic process, bypass the to see why Judge Alito is not receiving that have been some of the more fre- people’s Houses and go to the courts to similar support, because their records quent criticisms of Judge Alito trouble get an extreme agenda passed and into and their approach to the law are re- me as to how we are morphing the judi- law in this country. markably similar, in my mind. He is a cial process or the selection, approval, The voices we have heard over the judge who, when I met him, used very and confirmation process into sort of a past couple of months during this nom- much the same terms as Justice Rob- campaign process, into a process of ination and which we heard somewhat erts—terms such as humility and mod- how we elect legislators and Presi- more muted during the Roberts nomi- esty in dealing with the matters before dents. We are not electing a legislator nation were of those trying to hold them; that he was not to be a judge or a President, someone who we have a onto power by holding onto a majority who was to impose his views on the right to know their ideology or what on the Supreme Court of the United case before him. side they are going to come down on. States to continue to promulgate a far- Many have tried to claim that some- We are electing someone whose job it left-of-center agenda on a variety of how or another he is ideological. I is to play it right down the middle, issues, using the Court as the place to don’t think there is anything in the whose job it is to be blind justice, who silence the people in their collective RECORD that would indicate Judge is going to weigh the facts in the law judgments. Alito applies his own personal view- and do what it dictates, not do what One of the reasons that I think is vi- points to the case at hand. He looks at they believe, in their ideological view- tally important for putting a Judge the law, looks at the facts of the case point, is right. Alito on this Court, and hopefully fu- and does his best on the narrowest I am disturbed by the criticism, but I ture Judge Alitos as other vacancies grounds possible to decide the cases be- am very encouraged by Judge Alito and occur, is that we will have an oppor- fore him. That is what a judge is sup- the way he has conducted himself and tunity to return a balance of power in posed to do—not say, gee, here is my the way he answered the questions and this country away from nine unelected opportunity to change the law, my op- how he has, in fact, laid out a very con- people across the street from the Sen- portunity to right a wrong that I think cise and well-reasoned approach to his ate to the halls of the people’s bodies, Americans or a particular State or the making decisions on the Court in the to the living rooms of America, for Government has done that I disagree past. them to be able to make these deci- with; here is my opportunity to change He obviously has impeccable creden- sions that are important to the future the law by using the force of the Con- tials. The Senator from Utah is in the of our country and not have those deci- stitution to impose my values. That is Chamber right now, and I heard him sions taken from them by radical not what he does. Again, what he also say over and over that no one has the judges on our courts. doesn’t do—and it strikes me as a very credentials this man has and the expe- So this is an important step. Do I be- odd discussion when it comes to ana- rience he brings to the Supreme Court. lieve that we are going to see, as a re- lyzing a judge’s rulings on who he rules No one, in my view, has been more per- sult of Judge Alito’s confirmation, for, does he rule for the little guy or sonally decent, humble, and modest which appears to be all but certain, a the big guy, as if little guys are always dealing with a rather rancorous hear- dramatic change in the precedents of right and big guys are always wrong, or ing process. He came off, at least from the U.S. Supreme Court? I sort of vice versa, for that matter. It is the my view, as exactly the kind of tem- doubt that we will see dramatic idea that you don’t decide the case be- perament we would want of a Supreme change, certainly not any time soon. fore you based on the law and the facts Court Justice—of any judge. He is obvi- But I think what we will see is a more

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00043 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S78 CONGRESSIONAL RECORD — SENATE January 25, 2006 modest approach to dealing with the There is no place for the Court impos- The second reason Judge Alito should problems with which the Supreme ing its will and making laws. There is be confirmed is that he is a man of Court is confronted. We will not see no place for that in our Constitution. character and integrity. Anybody cases where the Court could decide a That is not their role. watching those proceedings would have case on a narrow issue and settle the I am very pleased the President un- to conclude that. I have been struck, dispute at hand and instead of doing so derstands that and that he has put throughout this process, at the level of take the opportunity, ‘‘while we are at forth judges who I believe understand respect and praise for Judge Alito’s it,’’ to overturn a variety of precedents that point of view as a member of the character and integrity, how it is di- they don’t need to overturn and create judiciary. I am hopeful that we will rectly related to how well people know new legislation, if you will, through confirm Judge Alito and that we will him, how closely they have worked their judicial opinions. We see that continue this process of creating a bet- with him. Without exception, those happen time and again. It threatens ter balance of powers among the Con- sounding the most dire warnings, cre- the very foundation of our country. gress, the executive branch, and the ju- ating the most negative caricatures, Thomas Jefferson understood that. diciary. This is a very important, in and painting the scariest picture of Jefferson in 1821—this was after he was my opinion, second step in that proc- Judge Alito are those who know him President, 5 years before he died, obvi- ess. the least or who do not know him at ously a great student of our Constitu- I yield the floor. all. tion, obviously a great student of the The PRESIDING OFFICER. The Sen- We have heard from those who powers of the Congress and the judici- ator from Utah. worked with him at the Department of ary and obviously of the Presidency— Mr. HATCH. Mr. President, I enjoyed Justice and in the U.S. Attorney’s Of- he said, in reflecting on this very deli- my colleague’s remarks. We are in the fice in New Jersey. We have heard from cate system and the balance of power final stretch of considering the nomi- Judge Alito’s law clerks and fellow among the executive, the judicial, and nation of Samuel Alito to the Supreme judges, and there were dozens of those the legislative branch: Court of the United States, and by any law clerks from all across the ideolog- The germ of destruction of our Nation is in reasonable objective or traditional ical spectrum who were supportive of the power of the judiciary, an irresponsible standard, Judge Alito deserves over- body working like gravity by night and by Judge Alito. whelming confirmation, without ques- Make no mistake, this is not a bunch day, gaining a little today and a little to- tion. morrow and advancing its noiseless step like of rightwing clones but a diverse group The first reason Judge Alito should a thief over the field of jurisdiction until all of men and women, liberals and con- shall render powerless the checks of one be confirmed is that he is highly quali- servatives of different religions and branch over the other and will become as fied to serve on the Supreme Court. It backgrounds. They do not agree with venal and oppressive as the government from amazes me that some parties to this him on every issue or, in some cases, which we separated. debate practically ignore his qualifica- they don’t agree with him on virtually He saw the power of an immodest, a tions altogether. They are so intent on any issue at all, but they all praise brash, a bold judiciary in its ability by manufacturing a case against this Judge Alito as a man of character and using the ultimate law of the land, the nominee that they brush aside this integrity. Judge Samuel Alito pos- Constitution, in grabbing power by day seemingly minor detail of his qualifica- sesses the character and integrity nec- and by night quietly—drip, drip, drip— tions as if it were just an annoyance. essary to serve on the Supreme Court After serving in the Department of taking the power away from the people of the United States. Justice and as a highly regarded Fed- and ceding it to itself so that, to para- The third reason Judge Alito should eral prosecutor, Judge Alito has served phrase Jefferson, they would be like be confirmed is that he understands on the U.S. Court of Appeals for the the monarchs we left, ruling from their and is committed to the appropriately Third Circuit since 1990, has partici- kings’ benches. limited role of the judiciary. America’s This is a true threat, in my opinion, pated in nearly 5,000 cases, and has Founders established a system of lim- to the democracy in America today. written more than 360 opinions. He has ited Government containing three Jefferson, as he did with many issues, more judicial experience than any Su- branches, each with its category of had it right here too. There have been preme Court nominee in the last three- power and ability to check the others. times in American history where the quarters of a century. The judicial branch is as much a part pendulum has swung in favor of one The American Bar Association, of this system of Government and must branch of Government to the other. I which conducts perhaps the most com- remain as limited as the legislative think this is such a time when we have prehensive and exhaustive evaluation and executive branches. seen that pendulum swing to the Su- of Supreme Court nominees, inter- The fight over judicial appointments preme Court, and it is incumbent upon viewed more than 300 people who know is a fight over whether we should stick all of us to make sure that equilibrium and have worked with Judge Alito. The with the system America’s Founders is restored. American Bar Association, after all I know there are a lot of folks who those interviews, unanimously gave established. are listening who say: I like the deci- Judge Alito its highest well-qualified Some want to change that system be- sions the Supreme Court has made; rating. Here, too, it is amazing how cause, frankly, it does not give them that is why I am out here arguing, to some Senators and leftwing interest everything they want. make sure we can preserve that. I can groups brush aside this ABA rating as Self-government, after all, can be a say what is good for the goose is good if they were dusting the mantel. little messy and sometimes very frus- for the gander. There may, indeed, While the ABA’s role in the judicial trating. come a day—although I hope it will not appointment process has been con- Letting the people and their elected come—there may, indeed, come a day troversial at times, certainly no one representatives make the law and de- when this Court decides, since we have has ever charged it with a conservative fine the culture means that, on any power to make laws in favor of those bias—no one. It was my Democratic given day, certain political interests who like the recent decisions of the colleagues and their leftwing interest win and others lose. courts or decisions over the last 30, 40 groups that once lauded the ABA rat- Some who lose in the political proc- years, there may come a time when ing as the veritable gold standard for ess pick themselves up and try again they take that same authority and evaluating judicial nominees. another day. make a whole host of decisions that The criteria for the ABA’s highest Others leave the political process be- you don’t like. well-qualified rating includes Judge hind and go to the courts, trying to Whether I am in the Senate or some- Alito’s compassion, openmindedness, persuade judges to impose upon the where else at that point in time, I hope freedom from bias and commitment to American people policies and priorities I will have the integrity and the ability equal justice under the law. Judge the people would not choose for them- to stand up and criticize that Court Samuel Alito is eminently qualified to selves, or they could never get through such as I am criticizing the courts over serve on the Supreme Court of the the elected representatives of the peo- the last 30 years for their activities. United States. ple.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00044 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S79 The fight over judicial appointments As the Constitution puts it, judges portant role to play, it’s a limited role. is whether we should have judges will- exercise judicial power in the context . . . Judges don’t have the authority to ing to take such political bait. of cases and controversies. Judges do change the Constitution. . . . The Con- It is fashionable in some circles to not make the law they apply. Judges stitution is an enduring document and put the Supreme Court on a pedestal, are neither school boards nor inspec- the Constitution doesn’t change.’’ pretending that a few unelected judges tors general. Judges are neither legis- Let me speak again to my fellow citi- are supposed to lead us to some kind of lative oversight commissions nor polit- zens out there who may be watching. promised land. ical provocateurs. Instead, judges set- The first three words of the Constitu- During the debates about Chief Jus- tle legal disputes by applying already tion are ‘‘we the people.’’ tice John Roberts’ nomination last fall established law to cases that come be- The Constitution belongs to the peo- and Judge Alito’s nomination now, we fore them. ple. have heard all sorts of grand descrip- Because that is what they do, it is It does not belong to judges. tions of the judiciary’s role and pur- impossible to properly evaluate judges The Constitution, your Constitu- pose. or judicial nominees the way we evalu- tion—I am speaking to the people out The judiciary, we are told, is the en- ate politicians, by the results they can there—already has a specific process gine of social progress, the protector of be expected to deliver. for changing it, and the only branch of all our rights and liberties, even the Yet that is exactly what we see in government involved in that process is savior of the environment. this judicial confirmation process. this one, the legislative branch, the Yesterday, in the Judiciary Commit- To hear some of my Democratic col- one you directly elect. tee’s businss meeting, the ranking leagues and their left-wing interest If America’s founders explicitly ex- Democratic member said that the very group friends talk, there is absolutely cluded the judiciary from the process reason the Supreme Court exists is to nothing that is not the judiciary’s job. of changing the Constitution, do you be ‘‘a constitutional check on the ex- That is ridiculous. think instead that judges should now pansion of presidential power.’’ To hear some of them talk, every- be able to change the Constitution? The Senator from Massachusetts, thing is fair game for judges and the Do you believe that the Constitution, Senator KENNEDY, said the very same only thing that matters is who wins your Constitution, is whatever judges thing yesterday, that the Supreme that game. say it is? Court’s historic role is ‘‘enforcing con- America’s founders rejected that It is the Constitution that ultimately stitutional limits on presidential view, and Judge Alito should be con- protects our rights and liberties. power.’’ firmed because he rejects that view. If the Constitution means whatever I hope we find more qualified men These grand descriptions give the im- judges say it means, then our rights and women who believe there is some- pression that the Supreme Court alone and liberties are whatever judges say thing, anything, that is not a judge’s polices our system of separated power, they are. They are not elected. They job and appoint them to the judiciary hands down decrees about issues, are nominated, appointed and con- right away. opines on abstract theories, and de- firmed for life. While scorecards are familiar in the cides how best to order the universe. If that is what my Democratic col- political process, they have no place in It does no such thing. The last time leagues and their left-wing interest the judicial process. group allies mean when they say the I checked, most of the Supreme Court’s Again, I quote Judge Alito: ‘‘I don’t judiciary protects us, then do not sign cases have nothing whatsoever to do think a judge should be keeping a me up for that protection package. with issues such as presidential power, scorecard about how many times the Our rights and liberties, and particu- abortion, religion, or the environment. judge votes for one category of litigant larly the rights and liberties of the mi- The Supreme Court does not exist to versus another in particular types of nority, are secure only when the con- run the country, right all wrongs, and cases. That would be wrong. We are stitution is solid. usher in peace and domestic tran- supposed to do justice on an individual Judge Alito is precisely the kind of quility. basis in the cases that come before us.’’ The judiciary is part of our system of Who can disagree with that? Yet, judge who will protect our rights and limited government; it is not a system they seem to on the other side. liberties because he does not believe unto itself. It is that whole system of I hope that my fellow citizens are that he defines them. government, not anyone part of it, that watching this debate, either live right So the case for Judge Alito’s con- protects our rights and liberties, now or when it is replayed later. firmation is overwhelming. He is high- checks excessive government power, I ask my fellow citizens, do you agree ly qualified, he is a man of character provides for social progress, and all the with Judge Alito? Do your expect and integrity, and he understands and rest. judges to do justice on an individual is committed to the properly limited As a part of that system, judges who basis, to take each case on its own role of judges in our system of govern- exceed their proper role and power are facts and its own merits, and to decide ment. no less a threat to liberty than legisla- it solely according to the law? Or do In the past, this would have been tors or the president who do so. you expect a judge to look at a case enough for confirmation by a wide bi- In the famous case of Marbury v. not as a legal dispute between real par- partisan margin. Madison, Chief Justice John Marshall ties, but as a political issue, deciding it Perhaps because this case for con- wrote that the Constitution was de- based on his opinion of the issue, prac- firmation is so strong, Judge Alito’s signed for the government of courts as tically before the case even comes be- opponents have tried a host of attacks much as of legislatures. fore him? that not only have failed but have de- As Chief Justice Roberts put it last Judge Alito rejects scorecards and graded this process along the way. fall, judges are not politicians. tallies, he rejects percentages and pat- One is the familiar guilt-by-associa- The tendency of some in this debate terns, and looks at each case based on tion tactic, trying to smear Judge simply to look at the results judges de- its own facts and the law that applies. Alito by attacking a group of conserv- liver is, therefore, misguided because it I might add that at one time in the ative Princeton alumni to which he suggests that judges, as politicians, are proceedings one of the Democratic Sen- once belonged. Membership in this free to take whatever side they choose ators said he never ruled in favor of group, mind you, was nothing more and the only thing that matters is labor. We immediately showed a num- than a magazine subscription. Imagine whose side judges are on. ber of cases where he did. You can find if someone tried to attribute to each of This politicized approach misleads rulings by Judge Alito across the spec- you everything published in every mag- our fellow citizens about the judiciary trum with respect to people who should azine or newsletter you receive. and its proper place in our system of have won those cases. Some Democratic Senators used this government. Let me describe another revolu- very illegitimate tactic on Judge Alito, America’s founders had a very dif- tionary idea. Let me read it. selecting the most salacious or con- ferent view and, I am glad to say, At his hearing, Judge Alito said that troversial articles which Judge Alito Judge Alito sides with them. ‘‘although the judiciary has a very im- never read. One Senator even tried to

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00045 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S80 CONGRESSIONAL RECORD — SENATE January 25, 2006 pass a parody of such outrageous views 5,000 cases in which he participated. Democrat. I know him very well. I off as the real thing. That is how deni- That is a rate below the average for ap- tried one of my first jury trials in front grating this process became. peal court judges around the country. of Judge Aldisert in the common pleas Our staff spent hours pouring Something else the Senator from court in the highest trial court in through boxes of documents related to New York has not revealed is Judge Pennsylvania. I got tears in my eyes this group and the name Samuel Alito Alito has voted to overturn his own when he appeared. But he, too, a Demo- never appeared on a single scrap of court’s precedence just four times in crat, defended as sound Judge Alito’s paper—not one. his whole 15 years on the bench. In treatment of precedent. The disinformation was even worse in each of those cases in which all the I might add, chatting with Judge the media. judges of the circuit participated, Aldisert afterwards, he had had a num- The group in question, or at least Judge Alito was in the majority, and ber of health problems. He risked his some of its members, wanted to pre- two of them were unanimous in each of life to come back to right this wrong serve Princeton’s all-male tradition those cases. He was in the majority, that had been done to one of his col- and opposed affirmative action—in and two of them had a unanimous ma- leagues on the Third Circuit Court of other words, affirmative action. jority. Appeals. Judge Aldisert, when I knew On January 6, a well-known pundit My colleagues will remember that him, and I have known him all these claimed on the FOX News Channel that seven of Judge Alito’s current and years, but when I knew him as a young Judge Alito himself was personally former judicial colleagues appeared be- trial lawyer in Pittsburgh, Judge ‘‘trying to keep women and minorities fore the Judiciary Committee. Who Aldisert was the national president of out of Princeton.’’ better to give the Senate real insight the Italian Sons and Daughters of I have been around for a long time, of Judge Alito’s approach to cases, his America. And proudly so. I was very and I have seen a lot of bad journalism, attitude toward litigants, and his per- proud of him when he went to the but this goes beyond the pale. This spective on the law? Better yet, what a Third Circuit Court of Appeals and goes beyond spin, beyond any reason- unique opportunity to hear from those have been very proud of him since and able characterization of the facts. In fellow judges about how Judge Alito proud of the scholarship he has writ- fact, it is ridiculous. handled precedent. ten. He knows the difference between a When I asked what the media charac- I might add that earlier in the hear- good judge and a bad judge, and he has terizes as a softball question, sarcasti- ing, for example, the Senator from New had a world of experience. I got very cally asking it, are you really against York quoted a passage critical of Judge emotional when I saw him once again. having women or minorities in col- Alito from the majority opinion in Dia As I mentioned earlier, some of my leges, anybody listening to that had to v. Ashcroft. Chief Judge Anthony Democrat colleagues are particularly conclude I was being sarcastic. He said, Scirica joined that opinion. Chief fond of scorecards and tallies, thinking Of course not. Judge Scirica was sitting right there in that tells anything useful about a When I said I thought that is what he front of the committee. judge’s approach to the law. Perhaps thinks, I couldn’t have been more sar- The Senator from New York also they can create something like a con- castic. But apparently I am so serious quoted a passage critical of Judge Alito firmation rate card listing the percent- on most matters that people thought I from Judge Leonard Garth’s dissent in age of cases in different categories that was serious on that. But it is ridicu- Bray v. Marriott Hotels. Judge Garth one side or the other is supposed to lous, this guilt by association that visited with us via teleconference from win. Plaintiffs should win this percent- went on, even in the committee, in Arizona. That would have been a great age of employment discrimination, the something as important as the Judici- opportunity to question the very prosecution is allowed to win this per- ary Committee of the Senate. judges on the side of the Senator from centage of criminal cases, and so on. Let me address a few of the other ar- New York of evidence of Judge Alito’s Perhaps it can be a list titled ‘‘Whose guments by Judge Alito’s opponents. activism and disregard for precedent. Side Are You Supposed To Be On’’ as a Yesterday, at the Judiciary Committee Hearing it from them could be more judge. That is about the way it comes markup, the Senator from New York, meaningful than cutting and pasting a off. Before anyone dismisses this as ri- Mr. SCHUMER, tried once again to paint few selected quotes from poster board. diculous or farfetched, this is exactly Judge Alito as an out-of-control judge, Yet the Senator from New York did not what some of my Democrat colleagues wantonly disregarding and seeking to ask those judges questions about this and many of their leftwing interest disrupt his own court’s past decisions. issue. In fact, he did not ask any ques- group friends have done to Judge Alito. The political rhetorical value of the tions at all because he did not attend In his opening statement on January tactic is obvious. If Judge Alito played that portion of the hearing. That was 9, the Senator from Massachusetts, Mr. fast and loose with his present court’s his right. KENNEDY, cited a so-called study by precedence, the story goes he would I asked him about it. I referred to the University of Chicago law professor certainly do so on the Supreme Court. claims by the Senator from New York Cass Sunstein claiming that Judge The problem is that this claim, this and asked the judges whether Judge Alito voted against the individual in 84 picture of Judge Alito as an activist Alito disregards precedent, whether he percent of his dissents. The Senator judge out to remake precedent in his has an agenda to disrupt the court’s from Massachusetts did not quote from own image is patently wrong. It bears prior decisions. Judge Edward Becker, Professor Sunstein’s letter that such no relationship to reality. former Chief Judge of the Third Circuit statistics must be taken with ‘‘many At Judge Alito’s hearing, the Senator Court of Appeals, participated with grains of salt and with appropriate from New York cited a few cases in Judge Alito in more than 1,000 cases. qualifications,’’ or Professor Sunstein’s which colleagues disagreed with how Judge Becker said he never saw Judge own admission that his analysis was Judge Alito treated the court’s prior Alito disregard or ignore precedent. done under what he called considerable decisions. The Senator from New York Judge Alito followed precedent unless time pressure, rendering his conclu- made no attempt whatever to deter- he believed the precedent was distin- sions only tentative and preliminary. mine whether Judge Alito’s position in guishable or was what judges called And, of course, the Senator from Mas- those cases was right or wrong. He sim- dicta—in other words, not binding lan- sachusetts did not examine any of the ply grabbed quotes supporting his pre- guage in a particular case. dissents on the merits. He let the cal- conceived point of view. Another judge on that distinguished culator do the talking. Remember, With all due respect to the judges panel was Judge Ruggero Aldisert, ap- these are appeals. Most of the appeals who disagreed with Judge Alito in pointed nearly 40 years ago by Presi- are upheld on appeal. those cases, they could very well be the dent Lyndon Johnson, and still serving Actually, the Senator from Massa- ones who misread or misapplied the on the court. In addition to his many chusetts went much further than that. Third Circuit’s prior decisions. years of service in both the State and On the basis of this one tentative and What the Senator from New York Federal courts, Judge Aldisert has preliminary statistic from this one never said was that Judge Alito has written a well-known textbook on the study, he claimed that ‘‘average Amer- dissented in just 79 of the more than judicial process. Judge Aldisert was a icans have had a hard time getting a

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00046 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S81 fair shake in [Judge Alito’s] court- argument and are not propped up by law cratic National Committee, yesterday room.’’ That is an outrageous claim, clerks—we are alone as judges discussing the described a confirmation standard that one that would not be at all justified case—that one really gets to know, gets a I hope his fellow Democrats would once sense of the thinking of our colleagues. I even if the supposed evidence behind it cannot recall one instance during conference again embrace. were more legitimate. or doing any other experience that I had He said that if a nominee is qualified Let us be honest about this. Saying a with Judge Alito, but in particular during and passes the test of integrity, elec- pattern of past decisions shows an en- conference, when he exhibited anything re- tions matter and disagreement with tire group of litigants will have a hard motely resembling an ideological bent. some of nominee’s positions or deci- time getting a fair shake in the future He endorsed Judge Alito in no uncer- sions are not enough to deny the Presi- is to accuse Judge Alito of bias. tain terms. dent his appointment. Before the Senator from Massachu- Let me close by noting a few things That was the standard that allowed setts or anyone else using this tactic I find encouraging. First, I am encour- President Clinton to appoint two lib- gets indignant, throws up his hand and aged the attacks, distortions, and mis- eral justices with minimal opposition. claims he never accused Judge Alito of leading claims about Judge Alito have I wish my Democratic colleagues bias, there is simply no other meaning not persuaded the American people. would follow Governor Rendell’s lead. to what was said. The leftwing interest groups have Finally, Mr. President, I am encour- I again call into contention the testi- thrown everything they have against aged that Judge Alito will indeed be mony of those seven judges, all circuit this nominee. It is shameful the way confirmed. court of appeals Federal judges from they act. One of their leaders said at A highly qualified judge, a man of all across the spectrum, who said the beginning of this campaign: You character and integrity, and someone Judge Alito has never demonstrated name it, we will do it. That is the type who understands and is committed to any bias toward anybody. I would much of opposition this man has had to en- the judiciary’s properly limited role, rather have their confirmation than dure. will soon join the Supreme Court of the any law professors in this country, es- They did it. We have seen millions of United States. pecially any liberal law professor in dollars spent week after week on peti- When Judge Samuel Alito becomes this country, or conservative law pro- tion drives, television ads, rallies, Justice Samuel Alito, our system of fessor. What else could the words ‘‘av- phone banks, and grassroots lobbying. limited government under the rule of erage Americans have a hard time get- The net result of that barrage of propa- law will be stronger and the freedoms ting a fair shake’’ actually mean? ganda has been that support for Judge that system makes possible will be Another example last week, Thurs- Alito’s nomination among the Amer- more secure. day, the Senator from Massachusetts ican people has steadily increased—not I urge my colleagues to vote to con- claimed that while on the appeals a very good return on their invest- firm Judge Samuel Alito to the Su- court Judge Alito literally bent over ment. preme Court. backwards to ‘‘help the powerful.’’ In early November, Newsweek found The PRESIDING OFFICER. The Sen- He said: that 40 percent of Americans thought ator from Vermont. The record is clear that the average person Judge Alito should be confirmed. In Mr. LEAHY. Mr. President, we have has a hard time getting a fair shake in Judge December, even polls conducted for lib- Senators who wish to speak. Alito’s courtroom. eral groups found that support had On several occasions, but publicly These are his words, not mine. Say- risen to nearly 50 percent. And this and privately, I have asked the distin- ing that Judge Alito bends over back- month, polls by CNN, FOX News, and guished senior Senator from Utah if he wards to help the powerful means only Reuters find support even higher with purports to quote me, to try to at least one thing. Saying that a category of Americans backing the nomination by get within the ballpark of accuracy. I litigants will have a hard time getting a ratio of more than 2 to 1. A new Gal- realize that is probably a failing and lup poll conducted after Judge Alito’s a fair shake before Judge Alito means useless request after hearing him mis- hearing last week shows support has only one thing. If Senators wish to ac- quote me again the last few minutes, risen by about 10 percent since early cuse Judge Alito of bias, they should but I renew the request, and I hope December. This is particularly signifi- do so up front, not through innuendo or that he would do that. cant because Judge Alito’s opponents hiding behind statistics. Mr. HATCH. Will the Senator yield? have issued all sorts of apocalyptic Evaluating judges with a calculator Mr. LEAHY. To suggest that I have warnings and predictions. They have is wrong, misguided, and misleads our said—I would like to find the quote cast Judge Alito as a radical extremist, fellow citizens about what judges do where I said that Judge Alito, all by a threat to the environment and indi- and the role they play in our system of himself, would do away with all the lib- vidual rights. government. Again, I call attention to erties of Americans. the judges who appeared, all of whom The Senator from Vermont has re- peatedly said that all by himself, Judge I see the distinguished senior Senator spoke in favor of Judge Alito. In all from Florida, and I yield to the Sen- honesty, let me choose the most liberal Alito is a threat to the rights and lib- erties of all Americans literally for ator. of those judges. He has some very in- generations to come. The critics have The PRESIDING OFFICER. The Sen- teresting things to say. That was Judge said that Judge Alito would give the ator from Florida. Lewis who is retired now. He said: executive branch a blank check to in- Mr. NELSON of Florida. Mr. Presi- I am openly and unapologetically pro- vade your privacy, strip search chil- dent, some things can get hot here, choice and always have been. I am openly— particularly when we get into personal- and it’s very well known—a committed dren, and tap your phones. According to the critics, if Judge ities. Well, the senior Senator from human rights and civil rights activist and Florida came here not to speak about actively engaged in that process as my time Alito has his way, machine guns will permits. . . . flood our streets, big business will pol- personalities but to talk about the sub- I am very, very much involved in a number lute the air and water, and the poor stance of the issue in front of us. of endeavors that one who is familiar with and down trodden will be unable to find In the Good Book, the Gospel prom- Judge Alito’s background and experience justice. ises all of us impartiality at judgment. may wonder—‘‘Well, why are you here today I am pleased to say despite all of this And I would suggest impartiality—or saying positive things about his prospects as propaganda, as CBS News found, the justice for all—is a principle embedded a justice on the Supreme Court?’’ deep in our constitutional democracy. And the reason is that having worked with percentage of Americans having a fa- him, I came to respect what I think are the vorable impression of Judge Alito has I believe in an America where courts most important qualities for anyone who risen 50 percent since the end of Octo- address injustice and correct it. I be- puts on a robe, no matter what court they ber. I am also encouraged that not all lieve in an America where our judges will serve on, but in particular the United Democrat leaders have abandoned rea- serve the people by interpreting the States Supreme Court. sonable, traditional, judicial confirma- Constitution, without agenda. I may He went on to say: tion standards. have no greater responsibility in the As Judge Becker and others have alluded Pennsylvania governor Ed Rendell, a Senate than to be charged by our Con- to, it is in conference, after we have had oral past general chairman of the Demo- stitution with advising the President

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00047 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S82 CONGRESSIONAL RECORD — SENATE January 25, 2006 on his picks for the U.S. Supreme penalty case in which prosecutors had balance between the religious and political Court. And in assuming this awesome used their preemptory challenges to ex- rights of individuals and groups within our responsibility, I rise to oppose Judge clude Black jurors from the jury pool. society. There is a necessary tension be- tween the Free Exercise Clause and the Es- Alito’s confirmation to the Supreme The full Third Circuit later heard the tablishment Clause, which serves to balance Court. case and overturned Judge Alito’s rul- the sometimes competing interests of indi- Soon, the Supreme Court likely will ing. viduals’ freedom of conscience against the hear cases about protecting our per- These cases highlight the broader requirement that the state be neutral with sonal privacy from Government and concerns I have with Judge Alito’s respect to religious viewpoints. Justice corporate intrusion and about the shar- record. O’Connor has been successful in ensuring ing of power between Congress and the During my years in the Senate, I that public expression did not turn into gov- have voted for almost all of President ernment favoritism or state coercion of reli- President. These decisions will have an gious beliefs. important effect on each of our lives Bush’s judicial nominees. All told, I During his fifteen year tenure on the and on the future of our Nation. have voted for 216 of the President’s 226 United States Court of Appeals for the Third In the break we had over the holi- judicial picks, including Chief Justice Circuit, however, Judge Alito has shown days, I had numerous townhall meet- John Roberts. That is 96 percent. himself to have a view of the First Amend- ings all over my State of Florida. The I greeted Judge Alito’s nomination ment, particularly of the Establishment residents shared with me their with an open mind. But his many legal Clause, that differs dramatically from both writings, his judicial opinions and eva- Justice O’Connor’s judicial philosophy and thoughts about Judge Alito. So I took the settled understanding of fundamental Es- all of that information, and that is sive answers, both at his hearing and in tablishment Clause principles that has guid- why, then, I carefully studied his my private meeting with him, con- ed the Supreme Court’s decisions for at least record over the past 15 years as a judge vinced me that he would tilt the scales six decades. Indeed, early on, Judge Alito ac- on the Third Circuit Court of Appeals. of justice ever so slightly against the knowledged his disagreement with the Su- During his time on the bench, Judge average Joe. I do not want that out- preme Court on its Establishment Clause ju- Alito ruled on cases ranging from the come. risprudence. When applying for a position in the Reagan Administration Department of rights of individuals to the stewardship And because he is not the voice I be- lieve this Nation needs to replace the Justice, Judge Alito declared that his ‘‘deep of the environment. After his testi- interest in constitutional law [was] moti- mony before the Judiciary Committee, retiring Justice Sandra Day O’Connor, vated in large part by disagreement with the and after studying his judicial record, I who fiercely defended the rights and Warren Court decisions, particularly in areas am concerned that he, more often than liberties of all Americans—because of [such as] the Establishment Clause. . . .’’ As not, ruled in favor of big Government this—I am going to vote no on his con- evidenced by his longstanding appeals court and big corporations over the ordinary firmation. record, we remain concerned that such a mo- tivation taints his view today. American, putting trust in an authori- I yield the floor. The PRESIDING OFFICER. The Sen- There is much at stake for the future of re- tarian type of institution. That is a ligious liberty as a result of Justice O’Con- concern. ator from Rhode Island. Mr. REED. Mr. President, before I nor’s retirement and Judge Alito’s nomina- Following the hearings, I had the tion to take her place on the Supreme Court. pleasure of personally meeting with comment on the nomination, I would As Justice O’Connor has recognized, it is Judge Alito to discuss my concerns. It like to recognize and thank several vital that our longstanding Establishment was a very amiable and friendly con- people who have been very helpful in Clause protections remain in place: preparing my comments: Kara Stein, ‘‘At a time when we see around the world versation. He seems to be a very nice the violent consequences of the assumption gentleman. But I explained to him Justin Florence, and Sharon Rapport. Mr. President, I also ask unanimous of religious authority by government, Amer- some of my concerns. I explained how a icans may count themselves fortunate: Our consent to have printed in the RECORD recent Supreme Court decision has regard for constitutional boundaries has pro- a series of letters from national organi- frightened many of our constituents tected us from similar travails, while allow- zations with respect to issues of church who fear their homes can now be seized ing private religious exercise to flourish. . . and state separation and the nomina- by the Government to make way for a Those who would renegotiate the boundaries tion of Judge Alito. between church and state must therefore an- private developer’s project. There being no objection, the mate- swer a difficult question: Why would we While he expressed sympathy for the rial was ordered to be printed in the trade a system that has served us so well for parties whose homes had been seized, RECORD, as follows: one that has served others so poorly?’’ in this personal meeting with him, he (McCreary County, Kentucky v. ACLU of offered no misgivings about the legal AMERICANS UNITED FOR SEPARATION Kentucky, 125 S. Ct. 2722, 2746 (O’Connor, J., OF CHURCH AND STATE, concurring)). reasoning that led to that outcome. Washington, DC, January 10, 2006. I am concerned about his rulings in In the Establishment Clause area, replac- Hon. ARLEN SPECTER, ing Justice O’Connor with Judge Alito likely other cases pitting the Government Chairman, Committee on the Judiciary, U.S. would have a profound effect on the religious against individuals, in the area of the Senate, Hart Office Building, Washington, freedoms that our dual constitutional com- environment, workers’ rights, and ra- DC. mitments to free exercise and separation of cial discrimination. Hon. PATRICK LEAHY, church and state have long ensured. Both the In Public Interest Research Group of Ranking Member, Committee on the Judiciary, straightforward holdings and the underlying New Jersey v. Magnesium Elektron, he, U.S. Senate, Russell Office Building, Wash- tenor of Judge Alito’s decisions in Establish- ington, DC. ment Clause cases contrast sharply with Jus- Judge Alito, established high barriers DEAR CHAIRMAN SPECTER AND RANKING to prevent individuals from being able tice O’Connor’s views. Throughout her career MEMBER LEAHY: Americans United for Sepa- on the Court, Justice O’Connor has been to sue polluters for violations of the ration of Church and State urges you to op- keenly attuned to the plight of religious mi- Clean Water Act. The U.S. Supreme pose the confirmation of Judge Samuel A. norities in society as a whole, and most espe- Court later rejected this reasoning by a Alito, Jr. to be Associate Justice of the Su- cially in the public schools. But Judge vote of 7 to 2. preme Court of the United States. Americans Alito’s focus has been elsewhere: on religious In Chittister v. Department of Com- United for Separation of Church and State majorities’ ability to express their views munity and Economic Development, he represents more than 75,000 individual mem- through governmental instrumentalities, at bers and 9,500 clergy nationwide, as well as ruled that State employees could not government owned facilities, and in govern- cooperating houses of worship and other reli- ment-organized enterprises like the public sue for damages to enforce their rights gious bodies committed to the preservation schools. Judge Alito has given broad license under the Federal Family and Medical of religious liberty. We oppose the confirma- to religious majorities to use the public Leave Act. The Supreme Court later tion of Judge Alito to the Supreme Court be- schools and other official settings to broad- reversed this ruling by a vote of 6 to 3. cause his record demonstrates that he would cast their religious messages without regard I might say that both of those acts fundamentally alter First Amendment law for the competing rights and interests of re- under consideration by the Court I had and immediately put at risk many of the ligious minorities. the privilege of voting for when I was a crucial protections for religious minorities Because Judge Alito has not extended the that the Supreme Court has recognized and same protections to all Americans that he Member of the House of Representa- consistently enforced over the past sixty has granted to politically powerful religious tives. years. majorities, the Senate should decline to con- And then in Riley v. Taylor, he ruled Legal scholars have understood the First firm his appointment as an associate justice there was no basis for appeal in a death Amendment’s religion clauses as striking a of the U.S. Supreme Court.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00048 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S83 If you have any questions on Americans particular dissents, we have concluded that American judge—allowing a race discrimina- United’s position on this nomination, please Judge Alito does not show sufficient respect tion case to go to trial. McKee said that contact Aaron D. Schuham, Legislative Di- for civil liberties. His deciding vote on the Alito’s position would ‘‘immunize an em- rector. court could undermine fundamental rights ployer from the reach of Title VII if the em- Sincerely, for decades. ployer’s belief that it had selected the ‘best’ REVEREND BARRY W. LYNN, The decision to take a position on a judi- candidate, was the result of conscious racial Executive Director. cial nominee is not one the UUA takes up bias.’’ lightly—or frequently. Indeed, it was only in Judge Alito has narrowly construed stat- 2004 that our highest policy-making body ap- B’NAI B’RITH INTERNATIONAL, utes in gender discrimination cases. In proved language explicitly stating that the Washington, DC, January 6, 2006. Sheridan v. E.I. DuPont de Nemours and Co., Association would oppose nominees whose Hon. PATRICK LEAHY, Alito was the only judge to dissent from a records demonstrated insensitivity to civil U.S. Senate, ruling clarifying the nature of evidence per- liberties. We did not take a position on the Washington, DC. mitting a jury to find an employer engaged confirmation of either Judge John Roberts DEAR SENATOR LEAHY: On behalf of B’nai in discrimination. Alito’s position would or Harriet Myers. B’rith International and our more than have denied the plaintiff the opportunity to 110,000 members and supporters, we write to The nomination of Judge Samuel Alito Jr. is significantly different, in that he has an go to trial despite significant evidence of dis- ask that the confirmation hearings of Judge crimination. Samuel Alito deeply probe the nominee’s ju- extensive judicial record—more than 15 years dicial philosophy with regard to issues of on the 3rd Circuit Court of Appeals—that Judge Alito’s dissents would have made it great concern to our organization. Founded clearly reveals his judicial philosophy on a harder for victims of discrimination based on in 1843, B’nai B’rith is America’s pioneer wide range of issues. After extensive re- disability to prove their cases. In Nathanson Jewish agency, with a wide range of domes- search, Unitarian Universalist Association v. Medical College of Pennsylvania, the ma- tic and international public policy priorities. staff agreed that Judge Alito’s rulings dem- jority lamented that under Alito’s restric- Included in our agenda are several issues onstrate a pattern of views that were outside tive standard for proving discrimination that we would like to ask the Judiciary the mainstream and hostile to established based on disability under the Rehabilitation Committee to raise with Judge Alito: precedent favoring civil liberties. In case Act of 1973, ‘‘few if any Rehabilitation Act (1) Church-State Relations. We hope the after case, Judge Alito found against the cases would survive summary judgment.’’ Committee will ask Judge Alito which judi- rights of individuals in relation to govern- Reproductive Freedom: Dissenting in cial test should be applied to determine ment or corporations. In at least six cases, Planned Parenthood v. Casey, Judge Alito whether a particular government action vio- the Supreme Court voted to overturn deci- wrote that the right to reproductive freedom lates the First Amendment’s Establishment sions of the Third Circuit or Alito’s dissent does not prevent states from requiring Clause. It might be helpful to ask if the in Third Circuit cases. Several notable cases women to notify their spouses, except in lim- nominee feels it is permissible for public and patterns are mentioned below. ited circumstances, before getting an abor- school officials to lead students in prayer or Police Power: In the case of Doe v. Groody, tion. Justice O’Connor cast the deciding vote scriptural readings, or whether he believes Judge Alito dissented from a Third Circuit rejecting Judge Alito’s position. Joined by that public funds and public property may be ruling that police officers had violated clear- Justices Kennedy and Souter, O’Connor held used for religious displays. We also would be ly established constitutional rights. Police that the provision Alito supported harkened interested to learn whether Judge Alito be- had strip-searched a mother and her ten- back to the days when ‘‘a woman had no lieves that a statute or ordinance requiring year-old daughter while executing a search legal existence separate from her husband’’ schools to give ‘‘equal time’’ to instruction warrant authorizing only the search of her and created an undue burden on a woman’s in creationism or intelligent design would husband and their home. Then-Third Circuit ability to obtain an abortion. violate constitutional principles. Judge Michael Chertoff, now Secretary of (2) Asylum. B’nai B’rith hopes the Com- Homeland Security, held that the unauthor- WE ARE NOT ALONE ized search violated ‘‘clearly established’’ mittee will ask the nominee what standard When the Unitarian Universalist Associa- should be applied to asylum claims by indi- rights. Alito disagreed, arguing that even if the warrant did not authorize the search, an tion makes a decision to adopt a particular viduals facing persecution in their home- stance, we generally find ourselves in the lands. We would be interested to know what officer still could have read the warrant as allowing it. company of other religious organizations threshold of harm, or risk of harm, a person with similar views. This holds true for our fleeing a repressive society must dem- Religious Liberty: In the case of ACLU-NJ v. Schundler, Judge Alito held that religious opposition to the confirmation of Judge onstrate before receiving asylum in the Alito. United States. symbols displayed on government property (3) Workplace Discrimination. B’nai B’rith during the holiday season (in this case a In late November, the biennial convention would like to hear Judge Alito’s views on the cre`che and menorah) were not unconstitu- of the Union for Reform Judaism—the larg- standard that should be applied to cases of tional when ‘‘secular’’ decorations such as est branch of Judaism in North America— age, disability, or sexual discrimination in Frosty the Snowman and Santa Claus were voted overwhelmingly to oppose Judge the workplace. It would be useful to know subsequently added to the display. While Alito’s confirmation, saying that it ‘‘would the nominee’s position on the burden of Justice O’Connor has voted to allow secular threaten protection of the most fundamental proof an older worker must meet to dem- holiday displays, she has rejected efforts for rights’’ that the Reform Movement supports. onstrate that he or she has been passed over religious symbols, including the Ten Com- ‘‘On choice, women’s rights, civil rights and for promotion, denied accommodation, or mandments, to stand alone in public display. the scope of federal power,’’ Alito would unfairly rejected as a job applicant because In ACLU of New Jersey v. BlackHorse Pike ‘‘shift the ideological balance of the Su- of his or her age or disability. Regional Board of Education, Judge Alito preme Court on matters of core concern to Thank you for your attention and consid- joined a dissent from the Third Circuit’s rul- the Reform Movement,’’ according to the eration. B’nai B’rith looks forward to re- ing which struck down a public school board resolution adopted by the more than 2,000 maining in communication with you about policy allowing high school seniors to vote voting delegates from more than 500 con- this and other matters of mutual interest in on whether to include student-led prayer at gregations in all 50 states. their school-sponsored graduation cere- the months to come. Both our denominations reviewed Judge monies. In a subsequent case (Santa Fe Inde- Respectfully, Alito’s rulings and found that his record did pendent School District v. Doe), the Supreme JOEL S. KAPLAN, not support our stated values. The Unitarian Court, with Justice O’Connor in the major- President. Universalist Association of Congregations ity, struck down a public school board policy DANIEL S. MARIASCHIN, criteria and supporting materials are avail- allowing students to vote on whether to in- Executive Vice Presi- able at http://www.uua.org/. Materials from clude student-led prayer at high school foot- dent. the Union for Reform Judaism can be found ball games. at http://urj.org. Limiting Access to the Courts: Among the UNITARIAN UNIVERSALIST ASSOCIA- most troubling pattern is Judge Alito’s con- Liberty is at the core of our Unitarian Uni- TION OF CONGREGATIONS, sistent finding that plaintiffs in discrimina- versalist faith. Civil liberties are at the Washington, DC, December 15, 2005. tion cases did not have enough evidence to heart of our American experiment in democ- UNITARIAN UNIVERSALIST ASSOCIATION OF bring their cases to trial. By denying even racy. Those civil liberties guaranteed by the CONGREGATIONS URGES OPPOSITION TO THE the opportunity for judicial remedies, Judge Bill of Rights are as fundamental to our CONFIRMATION OF JUDGE SAMUEL ALITO JR. Alito’s philosophy undermines one of the practice of democracy as freedom of con- TO THE UNITED STATE SUPREME COURT most fundamental checks and balances in science is to our religion. We believe that DEAR SENATOR: On behalf of the over 1,000 our system of government. For example: Judge Alito’s philosophy does not suffi- congregations that make up the Unitarian Judge Alito has strongly disagreed with ciently respect these fundamental rights, Universalist Association, I urge you to op- Third Circuit rulings protecting the civil and we urge you to oppose his confirmation. pose the confirmation of Judge Samuel Alito rights of African Americans. In Bray v. In Faith, Jr., to the United States Supreme Court. Marriot Hotels, Alito disputed a ruling by ROBERT C. KEITHAN, After a careful review of his decisions, and in Theodore McKee—the Circuit’s only African Director.

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WOMEN OF REFORM JUDAISM, In 2002, the Union for Reform Judaism illustrate his indifference (at best) to the New York, NY, January 9, 2006. adopted a resolution that established our cri- constitutional protections separating church Hon. PATRICK J. LEAHY, teria for considering nominees to the federal and state; safeguards that have been the Ranking Member, Senate Committee on the Ju- courts. Under these criteria, which are not linchpin protesting religious liberty for all diciary, U.S. Senate, Washington, DC. limited to issues of character or professional Americans. DEAR SENATOR LEAHY: Recognizing the competence, we will oppose a nominee in A longtime advocate for women’s rights profound significance of the Judiciary Com- those rare cases in which after consideration and reproductive choice, the Reform Move- mittee hearings on the nomination of Judge of what the nominee has said and written, ment is also deeply concerned by Judge Samuel Alito, Jr. to the United States Su- and his or her record, a compelling case can Alito’s views on reproductive rights. During preme Court for the future of jurisprudence be made that the appointment would threat- his time as an attorney in the Solicitor Gen- in the United States, Women of Reform Ju- en protection of the most fundamental rights eral’s office, Judge Alito helped author the daism, comprised of 75,000 members in 550 af- which our Movement supports. Based on Reagan Administration’s amicus brief in filiates in North America urges you to op- these criteria, in November of 2005 we re- Thornburgh v. American College of Obstetri- pose his confirmation. solved to oppose the nomination of Judge cians and Gynecologists which argued for Women of Reform Judaism rarely opposes Samuel Alito Jr. to the Supreme Court of overturning the Roe v. Wade decision. Judge judicial nominations. Its resolution ‘‘Judi- the United States believing that: Alito also authored a 17-page memo to the cial and Executive Branch Nominations’’ Judge Alito’s elevation to the Supreme Solicitor General on how to ‘‘advance the adopted in 2004, however, emphasizes the Court would threaten protection of the most goals of bringing about the eventual over- need for balance of legal and social perspec- fundamental rights which our Movement turning of Roe v. Wade . . .’’ Further, in his tives on the federal bench. This resolution supports including, but not limited to, repro- 1985 job application to the Reagan Justice also enables Women of Reform Judaism to ductive freedom, the separation between Department he wrote of his work in the So- oppose judicial candidates whose record dem- church and state, protection of civil rights licitor General’s office saying, ‘‘it has been a onstrates opposition to the core values, and civil liberties, and protection of the en- source of personal satisfaction to me . . . to rights and principles supported by our orga- vironment; help advance legal positions in which I per- nization. On choice, women’s rights, civil rights, and sonally believe very strongly. I am particu- In his years in the Reagan Administration the scope of federal power (particularly as it larly proud of my contributions to recent and on the Third Circuit Court of Appeals, relates to civil rights and environmental cases in which the government has argued in Judge Alito has been a strong and consistent protection), Judge Alito’s nomination has voice for restricting women’s rights, extend- the Supreme Court that . . . the Constitu- sparked a national debate on one or more ing police powers and destroying the wall tion does not protect a right to an abortion.’’ issues of core concern to the Reform Move- separating church and state in schools and in This dedication to the ‘‘advancement’’ of re- ment so that the outcome of the nomination community religious displays. Judge Alito versing Roe is also clearly illustrated by his is likely to be perceived as a referendum on has also taken anti-affirmative action posi- dissenting opinion in Casey v. Planned Par- tions and has supported stringent barriers in that issue and will have significant implica- enthood (1991). Judge Alito would have discrimination cases. Judge Alito’s vote tions beyond the individual nomination; upheld a provision of Pennsylvania’s restric- Many of his rulings have been contrary to could be a crucial one on the court in all tive anti-abortion law requiring a woman to our core values and differed from the views these areas and more, replacing the balance notify her husband before obtaining an abor- of Justice Sandra Day O’Connor (who was so provided by Justice Sandra Day O’Connor tion. His colleagues on the Third Circuit dis- often the moderate ‘‘swing vote’’ on a closely with a marked shift that would endanger the agreed and the Supreme Court overturned divided Supreme Court), and, consequently, civil liberties and civil rights of the people of the Pennsylvania provision (with Justice Judge Alito’s elevation would shift the ideo- the United States. O’Connor casting the deciding vote). The Committed to the precepts of our tradition logical balance of the Supreme Court on Court’s majority opinion found that the pro- and adhering to the words of Deuteronomy, matters of paramount concern to the Reform vision Judge Alito would have upheld re- which tell us to pursue justice (Deuteronomy Movement; and verted back to the days when ‘‘a woman had 16:20), we look to the Supreme Court to pro- Judge Alito’s elevation to the Supreme no legal existence separate from her hus- tect the civil liberties and civil rights of all Court would likely contribute significantly band.’’ Americans. Based on his record, we are con- to reshaping American jurisprudence in a di- So often our nation’s courts ensure civil cerned that Judge Alito will be unable to put rection that would jeopardize our core val- rights and civil liberties that are otherwise aside his private views to dispense equal jus- ues. unprotected by flawed systems and discrimi- Judge Alito’s government service, and es- tice for all and oppose his confirmation. natory actions. In order to continue admin- pecially his fifteen-year record on the 3rd Respectfully, istering justice and equality for all, individ- Circuit Court of Appeals, provide clear in- SHELLEY LINDAUER, uals with grievances must have access to the sight into his judicial philosophy and under- ROSANNE M. SOLFON. courtroom. Here, too, the record suggests standing of the Constitution. His rulings that Judge Alito does not share our commit- from the bench in many areas of great im- RELIGIOUS ACTION CENTER ment to this fundamental principle. In split port to the Reform Movement, and the views OF REFORM JUDAISM, decisions on the merits of claims alleging Washington, DC, January 11, 2006. he expressed while working at the Depart- violations of the civil rights of racial minori- ment of Justice, demonstrate to us that he Hon. ARLEN SPECTER, ties, women, seniors, and people with disabil- U.S. Senate, Hart Senate Office Building, should not be confirmed. ities, Judge Alito has consistently ruled with As a religious minority, our community Washington, DC. the defendants. In 16 of 24 such cases, Judge has historically been committed to main- Hon. PATRICK J. LEAHY, Alito has voted to deny litigants the right to taining a strong wall of separation between U.S. Senate, Russell Senate Office Building, even bring their suit before the court. For church and state. We see nothing in Judge Washington, DC. example, in Bray v. Marriott Hotels, involv- Alito’s background to suggest he shares our DEAR SENATORS SPECTER AND LEAHY: As ing claims of race discrimination, the Court you consider the nomination of Judge Sam- commitment. In fact, in his 1985 job applica- majority sharply criticized Judge Alito’s dis- uel Alito Jr. to the Supreme Court of the tion to the Reagan Justice Department, sent, stating that his ‘‘position would immu- United States, we write on behalf of the Judge Alito wrote that one of the very rea- nize an employer from the reach of Title Union for Reform Judaism, encompassing 1.5 sons he became interested in constitutional VII’’ in certain circumstances. In Public In- million Reform Jews in 900 congregations law was his ‘‘disagreement’’ with the Warren terest Research Group v. Magnesium across’ North America, to express our oppo- Court’s decisions regarding the Establish- Elektron, another case involving access to sition to Judge Alito’s nomination. ment Clause. His opinions as a sitting judge the courtroom, Judge Alito again voted to Our decision to oppose Judge Alito’s nomi- have been consistent with this claim. In make it harder for citizens to establish nation was not taken lightly. During the de- ACLU–NJ v. Schundler, Judge Alito said it standing to sue, this time concerning toxic bate on the nomination at our recent Bien- was constitutional to have a holiday display emissions that violate the Clean Water Act. nial General Assembly Reform Jews old consisting of a cre`che (a representation of Judges, especially those selected to serve enough to remember the significant role the the infant Jesus in the manger), a menorah, on the highest court in our land, must be Supreme Court played in extending basic a Christmas tree, and other ‘‘secular holi- committed to upholding our foundational human and civil rights to all Americans cau- day’’ displays in front of the entrance to the principles of liberty and equality. Judge tioned the delegates about the danger of a main city government building. Again evi- Alito’s record leaves us with serious doubts Court whose members have records in oppo- dencing his lack of commitment to Estab- as to his ability to safeguard these rights sition to defending those rights. Our Move- lishment Clause values, in ACLU of New Jer- that we as a Movement, and a nation, hold so ment’s youth spoke of cherished constitu- sey v. Black Horse Pike Regional Board of dear. Here, with the stakes so high—a life- tional rights that, with but one Supreme Education, Judge Alito’s dissenting opinion time appointment to the nation’s highest Court justice’s vote changing the balance of argued that it was constitutional for a public court, replacing a pivotal Justice who was the court, could be undone, altering their school district to allow prayer at graduation often the ‘‘swing vote’’ in key areas—we can- lives and those of the generations to follow. ceremonies. Later, in a similar case involv- not afford such doubts. The older members did not want to leave ing school prayer the Supreme Court dis- We, therefore, urge you to oppose the nom- this legacy, and the youth did not want to agreed. The statements in Judge Alito’s 1985 ination of Judge Samuel Alito Jr. to the Su- inherit it. job application and the aforementioned cases preme Court of the United States, and we

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00050 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S85 stand ready to discuss our concerns with you bench is a commitment to fundamental the impact of his personal philosophy or your staff in greater detail. rights and freedoms. What we know of Judge on his role as a judge. Too many times Respectfully, Alito’s record raises sufficient doubt that he he has read constitutional clauses and RABBI DAVID SAPERSTEIN, meets that essential qualification and there- Director, Religious Ac- fore we urge the Committee to reject his statutes in a narrow and cramped way tion Center of Re- confirmation. to protect the Government or big cor- form Judaism. Sincerely, porations instead of ordinary Ameri- JANE WISHNER, PHYLLIS SNYDER, cans. In case after case, and in his tes- Chair, Commission on NCJW President. timony before the Judiciary Com- Social Action of Re- Mr. REED. Mr. President, nearly two mittee, Judge Alito has failed to show form Judaism. centuries ago, Alexis de Tocqueville a commitment to protecting the spirit NATIONAL COUNCIL observed that ‘‘there is hardly a polit- of the Constitution. OF JEWISH WOMEN, ical question in the United States November 29, 2005. which does not sooner or later turn Indeed, during his hearings, he had a Hon. ARLEN SPECTER, into a judicial one.’’ chance to answer questions about his Chairman, Senate Judiciary Committee, Hart As was the nomination of John Rob- prior writings and rulings in a clear Senate Office Building, Washington, DC. manner. Instead, Judge Alito opted to DEAR CHAIRMAN SPECTER: I am writing to erts to replace Chief Justice Rehnquist, you on behalf of 90,000 members and sup- the nomination of Samuel Alito to re- speak in broad platitudes and failed to porters of the National Council of Jewish place Associate Justice Sandra Day answer key questions in a manner that Women (NCJW) to express our strong opposi- O’Connor, upon her retirement, is an would qualify or put in adequate con- tion to the nomination of Judge Samuel A. extremely important moment for our text his prior writings and rulings. Alito, Jr. to fill the seat of Justice Sandra Nation. Part of the genius of the Constitu- Day O’Connor on the U.S. Supreme Court. The Constitution makes the Senate We have decided to oppose Judge Alito for an active partner, along with the Presi- tion that our Founding Fathers drafted many reasons, most notably because of his dent, in the confirmation of a Supreme is that it fulfills two functions at once. record concerning the right to privacy, his It is a blueprint for our Nation to gov- views on civil rights and women’s equality, Court nominee. Article II, section 2, clause 2 of the Constitution states that ern itself through a system of checks and his support for weakening the wall of and balances. It is also a charter of the separation between religion and state. In nominees to the Supreme Court shall light of this record, NCJW believes that only be confirmed ‘‘by and with the Ad- rights and liberties of the American Judge Alito should not be confirmed for a vice and Consent of the Senate.’’ The people. I am deeply concerned about lifetime position on the Supreme Court. Senate’s role in the confirmation proc- Judge Alito’s views in both of these When Justice Sandra Day O’Connor an- ess places an important democratic areas. Judge Alito’s record on the nounced her intention to retire from the Su- check on America’s judiciary. Third Circuit shows he has joined or preme Court, NCJW called upon President As a result, this body’s consent is Bush to seek a mainstream consensus nomi- agrees with a movement to undermine nee that would unite and not divide the na- both a constitutional requirement and the ability of Congress to protect the tion. Instead, he has selected a nominee who a democratic obligation. It is in up- American people through restrictive is deeply ideological with a demonstrated holding our constitutional duty as Sen- interpretations of the Commerce commitment to pulling the court to the far ators to give the President advice and Clause and the 14th amendment. The right. consent on his nominations to Federal Supreme Court, in recent years, has Judge Alito is clearly not a nominee in the courts that I believe we have our great- struck down more acts of Congress tradition of Justice O’Connor, who sought to est opportunity and responsibility to balance competing interests and adopted a than ever before. By narrow 5-to-4 mar- pragmatic approach to the law. Rather, over support and defend the Constitution of gins, in cases such as United States v. the course of his career, Judge Alito has the United States. Lopez and United States v. Morrison, ruled to severely restrict a woman’s con- In our consideration of the nomina- tion of Chief Justice Roberts last fall, the Court has drifted from long- stitutional right to abortion and against standing Supreme Court precedents to civil rights protections for both women and I stated my test for a nominee to the minorities. He has shown a cramped view of Supreme Court. It is a simple test, one invalidate portions of the Gun-Free the power of Congress to legislate, ruling, for drawn from the text, the history, and School Zones and the Violence Against example, that Congress lacked authority to the principles of the Constitution. As I Women Acts. ban fully automatic machine guns and that said then, a nominee’s intellectual Judge Alito would go even further. In Congress overstepped its bounds in passing gifts, experience, judgment, maturity, his dissent in the case of United States the Family and Medical Leave Act. With the withdrawal of the nomination of and temperament are all important. v. Rybar, he advocated striking down Harriet Miers to the Supreme Court, it be- But these alone are not enough. Congress’s ban on the transfer and pos- came clear that the extreme right wing was In addition, a nominee to the Su- session of machineguns. Alito’s opinion determined to see a justice confirmed who preme Court must live up to the spirit diverged not just from the majority in would implement their agenda from the of the Constitution. A nominee must his own Third Circuit but also from bench. Judging from his record, Samuel not only commit to enforcing the laws, Alito appears to be just such a nominee. We five other courts of appeals that had al- but to doing justice. A nominee must ready found the law to be a constitu- are extremely disappointed that the Presi- give life and meaning to the great prin- tional expression of Congress’s author- dent chose this path and gave in to those ciples of the Constitution: equality be- forces demanding a nominee dedicated to ity. fore the law, due process, freedom of rolling back fundamental constitutional Yet Judge Alito argued that he was rights, rather than protecting them. We urge conscience, individual responsibility, the Senate to reject Judge Alito’s nomina- and the expansion of opportunity. not convinced by Congress’s findings tion. It is these principles that ensure full on the impact of machineguns on inter- We applaud your intention to hold hear- and equal participation in the civic and state commerce. He substituted his ings that will thoroughly explore Judge social life of America for all Ameri- own policy preferences in a way that Alito’s views and judicial philosophy. While cans. A nominee to the Supreme Court the Third Circuit majority found was, we hope that he will be candid in his an- must make these constitutional prin- swers, the hearing is only part of the record in their words, ‘‘counter to the def- that senators must take into consideration ciples resonate in a rapidly changing erence that the judiciary owes to its as they determine whether or not a nominee world. two coordinate branches of govern- is fit to be confirmed to be an Associate Jus- In my view, Judge Alito has not met ment.’’ Every other circuit has since tice of the Supreme Court. With the stakes this test. In his personal writings from disagreed with Judge Alito’s views on so high, it is all the more critical that the his time in the Reagan Department of this case, and the Supreme Court has Senate take into account Alito’s entire Justice, he has outlined a view of the concurred in these circuit court deci- record—not just his brief appearance before Constitution that is narrow, restric- sions. the Judiciary Committee. President Bush tive, and backward-looking on issue must immediately turn over all of the after issue. He has pursued this vision Judge Alito’s divergence from main- records requested by the senators. And Judge through both the clients he has chosen stream constitutional views on this Alito must now be forthcoming regarding his issue is particularly disturbing because judicial philosophy and views on settled to represent and the causes he has cho- legal questions. sen to advocate. it echoes personal views on congres- NCJW believes that the most basic quali- In addition, his opinions on the Third sional authority he has expressed in fication for a lifetime seat on the federal Circuit Court of Appeals have shown other contexts. For example, while

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00051 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S86 CONGRESSIONAL RECORD — SENATE January 25, 2006 working in the Reagan administration, country’s wetlands, let alone our na- I think Judge Alito’s view of the uni- he argued in a memo that the Truth in tional interests in area after area. tary executive is wrong and violates Mileage Act of 1986 ‘‘violates the prin- At the same time that Judge Alito the text and the spirit of the Constitu- ciples of freedom’’ and should be vetoed has advocated for a narrower vision of tion. In Federalist Paper No. 47, James by the President. This Federal law re- Congress’s constitutional authority, he Madison explained how the Constitu- quires a seller to disclose the vehicle’s has argued that the powers of the exec- tion deliberately divided power among mileage on the title when ownership is utive branch should be nearly unlim- the branches of Government. Rather transferred. Congress enacted this law ited. In a 2001 speech to the Federalist than create a unitary executive, the to prohibit odometer tampering and to Society, Judge Alito stated that since Framers created a careful and thought- protect consumers from mileage fraud. the 1980s, he had believed in the ‘‘the- ful system of checks and balances be- Samuel Alito argued that it was the ory of the unitary executive.’’ In the tween all three branches of Govern- States, and ‘‘not the federal govern- Judiciary Committee hearings, Judge ment. They were very weary of concen- ment,’’ that should protect American Alito denied any connection between trating too much power in any one citizens. the unitary executive theory and the branch of Government. As the McCain Not only does Judge Alito have an scope of Executive power. But scholars amendment demonstrates, Congress unusually narrow view of the Com- and judges have drawn from this the- plays a vital role in placing limitations merce Clause, it also appears that he ory to advance expansive views of the on Executive power, but so do and would restrict Congress’s ability to executive. must the courts. pass laws under section 5 of the 14th For example, in Hamdi v. Rumsfeld, In the near future, the Supreme amendment. This clause states that the Supreme Court reviewed the Presi- Court will hear further cases in this area. Perhaps the President’s claimed ‘‘Congress shall have power to enforce, dent’s claim that he could indefinitely authority to conduct warrantless sur- by appropriate legislation, the provi- detain an American citizen without veillance of Americans in violation of sions of this article.’’ Those provisions bringing charges or giving him a day in congressional statutes will come before include some of our most fundamental court to challenge the detention. Eight of the nine Supreme Court Justices re- the Court. In this time of crisis in par- constitutional principles, including due ticular, we need to have Supreme Court jected the President’s claim, and Jus- process and the equal protection of the Justices committed to the balance and tice O’Connor wrote in her plurality law. separation of powers between the three opinion that ‘‘a state of war is not a Congress has acted under the author- branches of Government. Despite Judge blank check for the President when it ity of this clause to protect the rights Alito’s statements that no one is above of women and minorities, to ensure re- comes to the rights of the Nation’s or beneath the law, Judge Alito’s ligious freedom, and to guarantee civil citizens.’’ record and views on the unitary execu- In a lone dissenting opinion, Justice rights for the elderly and the disabled. tive give me pause. If Judge Alito be- Thomas deployed the unitary executive But based upon his writings and rul- lieves that under the Constitution the theory to support broad Presidential ings, Judge Alito would severely limit President can determine what laws powers. He wrote that congressional or the meaning of this clause. In Chissiter apply to him and how they apply, then judicial interference in foreign affairs v. Department of Community and Eco- he is essentially giving away the power or national security ‘‘destroys the pur- nomic Development, he found the sick of the Supreme Court as well as the pose of vesting the primary responsi- leave provisions of the Family and power of Congress. Medical Leave Act to be unconstitu- bility in a unitary Executive.’’ Ever since Marbury v. Madison, it In view of the long scope of American tional because he believed that 12 has been ‘‘emphatically the province constitutional history, the unitary ex- weeks of leave was ‘‘out of proportion’’ and duty of the judicial department to to the gender discrimination that Con- ecutive theory is a relatively recent in- say what the law is. Those who apply gress wished to remedy. Here again, vention. It was a creation of the the rule to particular cases must of ne- Judge Alito relied on his own policy Reagan Justice Department in the cessity expound and interpret that preferences to strike down the meas- 1980s. And according to his speeches, rule. If two laws conflict with each ured judgment of Congress. Judge Alito has subscribed to it since other, the courts must decide on the In the case of Nevada Department of working there. While he worked in the operation of each.’’ That settled doc- Human Resources v. Hibbs, the Su- Reagan administration, Judge Alito trine, Marbury v. Madison, clashes preme Court explicitly upheld the fam- proposed a particular idea to, in his with this notion of a unitary executive ily leave provisions of the act by a 6-to- words, ‘‘increase the power of the Exec- who can declare the law for himself and 3 vote. Where Alito had questioned the utive to shape the law.’’ thus make himself exempt from the judgments of Congress, the Hibbs ma- In a 1986 memorandum, Alito argued law. jority, including Justices Rehnquist that the President should issue state- Judge Alito’s support for a powerful and O’Connor, found that, in their ments when signing a bill because the and unitary executive is exacerbated words: President’s ‘‘understanding of the bill by his 15-year circuit court record of The [Family Medical Leave Act] is nar- should be just as important as that of repeatedly deferring to government of- rowly targeted at the fault line between Congress.’’ The administration has fol- ficials when American’s civil rights work and family—precisely where sex-based lowed Judge Alito’s 1986 advice. For ex- and liberties lie in the balance. As I overgeneralization has been and remains ample, just recently, the President mentioned earlier, this is the other strongest. issued a signing statement regarding function the Founding Fathers created The possible consequences of this the McCain amendment which pro- for the Constitution. The Framers in- tendency by Judge Alito to second- hibits torture. In that statement, the cluded the fourth amendment in the guess the policy judgments of Congress President wrote that he would construe Bill of Rights to protect Americans and to replace them with his own pol- the McCain amendment ‘‘in a manner against unreasonable government icy preferences are profound. They go consistent with the constitutional au- searches and seizures. It was a response beyond any single act of Congress or thority of the President to supervise to the abuses of the British in the any single area of policy. As just one the unitary executive branch.’’ years leading up to the American Revo- example, this year the Supreme Court The practice Judge Alito first advo- lution. Yet time and again, Judge Alito will consider a pair of cases on the con- cated in the mid-1980s arguably helps has deferred to police, prosecutors, and stitutionality of the Clean Water Act. the executive to thwart the will of Con- other governmental agents instead of These cases challenge whether Con- gress when it passes a law. While the ordinary Americans. gress can protect wetlands and tribu- current Supreme Court has not given Judge Alito wrote in his now famous taries through its commerce clause weight to these signing statements in- 1985 job application essay that he dis- power. If the Supreme Court, with a re- terpreting the meanings of acts of Con- agreed with the Warren Court’s crimi- cently confirmed Judge Alito, adopts a gress, I worry how a possible Justice nal procedures decisions. These include more restrictive view of the commerce Alito would view these Presidential famous cases in the development of clause and the 14th amendment, it statements should they come before American liberties—for example, Mi- could limit our ability to protect our him on the Supreme Court. randa v. Arizona, which sets forth

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00052 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S87 rights for the accused; or Katz v. the rulings prohibited government-spon- Free Exercise Clause by unduly inhibiting United States, which prohibited sored prayer in public schools, pro- the practice of religion, and would also im- warrantless electronic surveillance; or tected students who are members of plicate the free speech guarantees of the Gideon v. Wainwright, which guaran- minority religious faiths, and pre- First Amendment. teed every American the right to a law- vented State interference with and en- In another case, Child Evangelism yer. There is little doubt that Judge tanglement in America’s religious lib- Fellowship of New Jersey v. Stafford Alito’s personal views in this area have erty. Township School District, Judge Alito carried over to his time on the bench. Judge Alito’s record on the bench wrote an opinion requiring a school to As Professor Goodwin Liu testified supports a troubling view of the estab- distribute a proselytizing religious before the Judiciary Committee, in lishment clause. For example, he group’s literature to elementary school fourth amendment cases, Judge Alito joined a dissenting opinion in the case students under the Equal Access Act. has not one time taken a position more of ACLU of New Jersey v. Black Horse Judge Alito dismissed the school dis- protective of individual rights than his Pike Regional Board of Education, sup- trict’s concerns that students would colleagues on the Third Circuit. These porting student-led prayer at official, perceive distribution of the religious include cases where there were defec- school-sponsored high school gradua- fliers as endorsement of religion. tive warrants, where agents conducted tion ceremonies. The Supreme Court, Again, Judge Alito’s view in this area warrantless electronic surveillance, or in an opinion joined by Justice O’Con- of the law differed from that of the Su- where police used excessive force nor, has since explicitly rejected this preme Court. Justice O’Connor’s opin- against unarmed individuals. Indeed, approach in Santa Fe Independent ion in Board of Education v. Mergens, the Washington Post found that Judge School District v. Doe and as recently for example, carefully distinguished be- Alito had sided with the government in as last year has sought a careful bal- tween requiring access to school facili- these cases over 90 percent of the time, ance in establishment clause cases ties—which was acceptable under the whereas other appeals court justices such as ACLU v. McCreary County. Equal Access Act—and requiring the nationwide only sided with the govern- In summary, in ACLU of New Jersey active involvement of school officials ment 54 percent of the time. In the face v. Black Horse Pike Regional Board of and teachers, which could have an in- of government officials, the dignity, Education, the Third Circuit majority appropriately coercive effect. autonomy, and rights of individual determined that a student-led prayer Although I could discuss more cases, Americans have carried less weight for at a graduation ceremony violated the the basic point I want to make here is Judge Alito. establishment clause. that I believe Judge Alito would upset As just one example, his dissent in Judge Alito joined the dissent in ar- the careful balance between the Free the 2004 case of Doe v. Groody would guing that the establishment clause Exercise and Establishment Clauses of have upheld the strip search of a moth- does not prohibit a high school gradua- the First Amendment, allowing major- er and her 10-year-old daughter even tion prayer. The school board involved ity religious views to prevail over mi- though they were not named in the had decided to allow graduating stu- nority views, and leading to an inap- search warrant for the house. Judge dents to vote whether they wished to propriate Government coercive effect Michael Chertoff, who wrote the major- have a prayer, a moment of silence, or on religious practice. ity opinion in the case and who is now neither at their graduation ceremony. As Justice O’Connor states in the Secretary of Homeland Security, The students voted for prayer. Citing McCreary: said that Judge Alito’s opinion of the Wallace v. Jaffree and Board of Edu- At a time when we see around the world case, if adopted, could ‘‘transform the cation v. Barnette, the Third Circuit the violent consequences of the assumption judicial officer into little more than majority said: of religious authority by government, Amer- icans may count themselves fortunate: Our the cliche ‘rubber stamp.’’’ An impermissible practice cannot be trans- regard for the constitutional boundaries has Judge Chertoff’s quote is an apt sum- formed into a constitutionally acceptable protected us from similar travails, while al- mation of my concern over the nomina- one by putting a democratic process to an lowing private religious exercise to flourish tion of Judge Alito. American courts improper use. . . . Those who would renegotiate the bound- cannot become a rubberstamp blotting Judge Alito joined the dissenting aries between church and state must there- out the constitutional rights of our opinion written by Judge Mansmann, fore answer a difficult question: Why would citizens. But from women’s rights to stating that ‘‘the establishment clause we trade a system that has served us so well workers’ rights and reproductive free- should not be read to prohibit activity for one that has served others so poorly? dom to religious freedom, Judge Alito’s which the free exercise clause pro- I believe Judge Alito would make writings and rulings reveal insen- tects.’’ The dissent argued that the Su- that trade. sitivity to the judiciary’s role in pro- preme Court in Lee had not decided Consider another area. The Federal tecting the charter of freedoms en- any broad constitutional precedents Courts play an important role in en- shrined in our Constitution. against prayer at graduation cere- forcing American workers’ access to The first amendment protects Ameri- monies, stating the facts in the case fair and safe working conditions, while cans’ religious liberties through two were wholly different, as the graduates, protecting their right to organize, and clauses that work in tandem: the free not the principal, maintained control providing a forum for remedying exercise clause and the establishment over the ceremony, thereby avoiding wrongful discrimination. Yet, as a clause. I worry that if confirmed, the appearance of a state actor. The judge, Alito has consistently tried to Judge Alito would upset the careful dissenters wrote: limit the reach of Congress’ workplace balance the Founders sought in con- The establishment clause should not be statutes, and to make it more difficult structing the first amendment. In fact, used for imposing content-based restrictions for plaintiffs to bring legal claims. For Judge Alito seems to interpret the es- on religious speech in a public forum under example, in RNS Services v. Secretary tablishment clause as a rarely applica- the appropriate scrutiny analysis. of Labor, the Third Circuit majority ble part of the first amendment. He ap- The dissent further criticized the found that the Mine Safety and Health plies the free exercise clause on a much Lemon test established in Lemon v. Review Commission had jurisdiction broader basis, often interpreting estab- Kurtzman, pointing to a ‘‘division’’ ex- over the work and safety conditions of lishment clause cases as free exercise isting on the Supreme Court ‘‘as to employees at coal processing sites. But cases. He seems to see a plaintiff’s whether the establishment clause pre- Judge Alito disagreed, siding with the complaint of establishment clause vio- cludes the government from conveying employer by interpreting the statute lations as attempts to block the free a message that endorses or encourages and case law restrictively. One aca- exercise of religion. religion in a generic sense, or espe- demic study has found that Judge Alito Judge Alito’s views appear to have cially acknowledges or accommodates has sided with the employee or union been developed well over 20 years ago the broad Judeo-Christian heritage of in only 5 out of 35 labor opinions he has on these issues. In his 1985 job applica- our civil and social order.’’ It also con- written. These are decisions that have tion essay, Judge Alito wrote that he cluded: real world effects on working people, as disagreed with the Warren Court’s es- [A]n absolute prohibition on ceremonial the recent mining accidents in West tablishment clause decisions. These prayer at graduation would . . . violate the Virginia demonstrate all too clearly.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00053 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S88 CONGRESSIONAL RECORD — SENATE January 25, 2006 As far as a woman’s right-to-choose tion, deportation, and asylum decisions Alito’s plea that we should not evalu- is concerned, in his 1985 job applica- of the Federal Government and the ate him based on the constitutional tion, Samuel Alito wrote that he was Board of Immigration Appeals (BIA). values he advanced through political proud of his work in the Reagan admin- As the noted conservative Judge positions. istration advancing a ‘‘legal position’’ Posner recently wrote, his appellate I also have not been convinced by that he ‘‘personally believe[d] very court reversed the Board of Immigra- Judge Alito’s vague rhetoric during the strongly.’’ Namely, that ‘‘the Constitu- tion Appeals 40 percent of the time last hearings about following the judicial tion does not protect the right to an year, mitigating the at-times harsh, process, or his begrudging acknowledg- abortion.’’ Let me make clear, he did unequal, and unfair application of our ment that important Supreme Court not say that he thought abortion was immigration laws. In the hearings, cases were indeed ‘‘precedents of the wrong; he wrote that the Constitution Judge Alito said he agreed that the Court.’’ While judges on the Federal did not protect a woman’s right to way BIA cases are handled ‘‘leaves an circuit courts are circumscribed by Su- choose. This is a view that he advanced enormous amount to be desired.’’ Yet preme Court precedent, there is no as a lawyer and then a circuit judge, immigrants who have appealed these higher court to bind the Justices of the and that he did nothing to dispel in his decisions have found no place of refuge United States Supreme Court. Deci- Judiciary Committee hearings. in Judge Alito’s courtroom. According sions of the Supreme Court are binding In his work for the Reagan Justice to one academic study, Judge Alito on all lower courts, so even if a circuit Department, Alito wrote a memo with sided with the BIA in 7 out of 9 opin- judge disagrees with well-established a strategy for ‘‘bringing about the ions he has written on asylum, and in precedent about the rule of law, he or eventual overruling of Roe v. Wade’’ by 7 out of 8 other immigration opinions she must follow that law. But this is chipping away gradually at privacy and he has authored. I believe that the spir- not true of the Supreme Court. reproductive rights. In the case of it of our laws and the history of our As Justice Frankfurter once wrote: Planned Parenthood of Southeastern country require that immigrants to It is because the Supreme Court wields the Pennsylvania v. Casey, Judge Alito our shores are assured fair and full power that it wields that appointment to the used his dissent to argue for a constitu- hearings. Court is a matter of general public concern tional interpretation that would do In his application to the Reagan Jus- and not merely a question for the profession. In truth, the Supreme Court is the Constitu- just that, chip away at the protections tice Department in 1985, Samuel Alito tion. wrote that his interest in constitu- for the freedom to choose. The Su- It goes without saying that the con- tional law had been ‘‘motivated in preme Court explicitly rejected Alito’s stitutional views of the Justices deter- large part by disagreement with War- opinion, with Justice O’Connor writing mine the rulings of the Supreme Court. ren Court decisions’’ about voting that the State ‘‘may not give to a man In response to questioning during the rights. These landmark decisions, in the kind of dominion over his wife’’ hearings, Judge Alito pledged to put cases like Baker v. Carr and Reynolds that Judge Alito would have accepted. aside his personal views. But in his Judge Alito’s record in this area is long v. Sims, have enshrined the bedrock writings and speeches, including his and clear, and I am disappointed that principle of ‘‘one person, one vote’’ into 1985 job application, Judge Alito didn’t rather than openly answer the ques- our Constitution. They have protected just record his personal political views; tions of Senators on the Judiciary the right of all Americans to have an he wrote down his views about what Committee, he responded with obfus- equal share in our democracy, regard- the Constitution means—about what cating statements about the judicial less of the color of their skin or the lo- rights it contains, and what limits it process. cation of their home. places on Government. To be clear, this While Judge Alito backed away from The Supreme Court has been a leader is exactly what it means to serve on in safeguarding all kinds of civil rights, these strong statements in his con- the Supreme Court and interpret the through momentous cases like Brown firmation hearings, his opinion in a Constitution. v. Board of Education, and through its voting rights case he heard on the America’s courtrooms are staffed application of historic laws of Congress Third Circuit calls that statement into with judges, not machines, because jus- like the Civil Rights Act of 1964. Vic- question. In the case of Jenkins v. tice requires human judgments. This is tims of racial, gender, age, or dis- Manning, Judge Alito joined an opinion particularly so on the Supreme Court. ability discrimination can find rem- rejecting the African-American plain- Of all the hundreds of thousands of edies in the Federal Courts. But from tiffs’ challenge to the voting system cases filed in American Federal Courts my reading of his record, Judge Alito for the local school board. The dis- each year, only about 80 reach the Su- has repeatedly used procedural and evi- senting judge in the case wrote that preme Court. These are the hardest of dentiary requirements to make it more Judge Alito’s side had ‘‘overlooked the cases, cases that have divided the coun- difficult for plaintiffs to vindicate broad sweep of the Voting Rights Act try’s lower courts. These are cases their civil rights claims. One study of of 1965 and its 1982 amendments’’ which where one constitutional clause may be discrimination cases heard by Judge that judge noted ‘‘is widely considered in conflict with another; where one Alito in which the panel was divided to be the most successful piece of civil statute may influence the interpreta- concluded that he sided against civil rights legislation ever enacted by Con- tion of another; and where one core na- rights protections 85 percent of the gress.’’ The Supreme Court continues tional value may interfere with an- time, more than any other judge on the to regularly hear cases about the abil- other. These cases often divide the Jus- Third Circuit. ity of Americans to participate fairly tices of the Court by close margins. For example, in the case of Bray v. and equally in our democracy, and I be- Surely the Justices on both sides of a 5 Marriott Hotels, the Third Circuit said lieve a nominee to the Supreme Court to 4 case can claim to be following the that an African-American woman de- should clearly and emphatically treas- judicial process and respecting the nied a promotion in favor of a white ure and respect the Court’s role in safe- precedents of the Court. What divides woman, when the company had not fol- guarding voting rights, rather than their opinions is the set of constitu- lowed its policy, should have a chance minimizing it. tional values that they bring to the to present her case before a jury. Judge At the hearings before the Judiciary case. Judge Alito’s testimony before Alito disagreed, saying that this would Committee, Judge Alito attempted to the Judiciary Committee suggests a ‘‘allow disgruntled employees to im- distance himself from his record and failure either to understand or to ac- pose the costs of trials on employers.’’ the constitutional views he has advo- knowledge the impact of his own con- As the majority in the case noted, cated throughout his career. An attor- stitutional views on the outcome. of under Judge Alito’s view Title VII ney must vigorously serve the interests cases that he hears. ‘‘would be eviscerated.’’ of his client, but in the case of Judge Given his lengthy record and his ex- I know Judge Alito spoke in the Alito, he chose his clients—political of- tensive statements about what the hearings about his own family’s his- fices in Republican Justice Depart- Constitution means, the burden was on tory as immigrants to the United ments—precisely because of the con- Judge Alito to convince the Senate States. America’s courts have played a stitutional agenda it allowed him to that he would be a judicious and bal- crucial role in reviewing the immigra- advance. So, I do not accept Judge anced member of the Supreme Court.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00054 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S89 The questions he was asked by mem- rules incorrectly, there is no option for stopped hearing that urgent call for an bers of the Judiciary Committee gave appeal. There is no backstop. Any seat up-or-down vote. In fact, Ms. Miers’ him numerous opportunities to do so. on the Supreme Court can affect our nomination was killed by the Presi- Judge Alito did not meet this burden. rights for generations. But there are dent’s own party, apparently because He failed to inform this body of his three factors involved in this par- she did not meet the ideological test of views on important constitutional ticular nomination that make it even the extreme right. issues, he evaded fair and important more significant. Those factors are the I recount this history tonight not to questions instead of offering honest times, the seat, and the process. diminish Judge Alito but to point out and insightful answers, and he in no First, I am well aware that we are that his nomination comes before the way demonstrated that he would up- living in historic times. Each day, it Senate in the context of an ideological hold not just the letter of the law, but seems that the rights of the individuals battle that has been created by the also its spirit. and the power of government are being rightwing. When the President nomi- As a result, I cannot support his life- tested. We are at war overseas, we face nated Judge Alito, the rightwing time nomination to the highest court threats from terrorism here at home, cheered, confident that he would vote in America. and the current administration is push- their way. That reaction gives me I yield the floor. ing the bounds of governmental power pause as to whether this nominee can The PRESIDING OFFICER. The Sen- in remarkable ways. keep an open mind on the issues that ator from Washington is recognized. The Bush administration has ar- come before him. If the rightwing is so Mrs. MURRAY. Mr. President, I rise rested U.S. citizens and held them confident that he is going to vote their this evening to discuss my vote on the without access to the courts. It has run way, how can all of us be confident confirmation of Judge Samuel Alito, secret prisons around the world. It has that he will put our country’s needs Jr., to the U.S. Supreme Court. After expressed views on torture that put our first? That alone does not suggest that meeting with Judge Alito and studying own troops at risk. As we recently Judge Alito cannot be fair, but it did his record and comparing his answers learned, the administration has been lead me to explore those questions dili- to my criteria for judicial nominees, I spying on American citizens without gently. have decided to vote against con- prior approval from a court. These are Given the importance of the Supreme firming Judge Samuel Alito, Jr., as an grave issues which will likely come be- Court and the background of the times Associate Justice of the U.S. Supreme fore the Supreme Court. How that and the seat and the process, I began to Court. Court rules will affect the rights of our evaluate how Judge Alito measured up The next Justice will have the power citizens, the balance of power between to my standards for judicial nominees. to change the Court, change the coun- the branches of our Government, and Judge Alito’s record contains some dis- try, and change our rights for genera- the balance of power between our citi- turbing statements, rulings, and pro- tions. Judge Alito has a very troubling zens and Government. nouncements that require detailed ex- record. In his hearing and in our pri- So as I make my decision on this planations. Does he still hold some of vate meeting he did not show that he nominee, I am very mindful of the his- those views? In many cases, we don’t will be an independent judge who will toric times we are living in and the se- know. I wish Judge Alito had been uphold the rights and liberties of all rious questions this Supreme Court more forthcoming during his hearing. Americans. With our rights and free- will address in the coming years. At the same time, many of the things doms on the line, I will not take a Secondly, I am very mindful of the he said and refused to say spoke vol- chance on Judge Alito because I have seat that is open on the Supreme Court umes. serious questions about his independ- and its significance. Justice Sandra As I noted earlier, my standards are ence and his commitment to protecting Day O’Connor was a pioneer in the field simple: Is the nominee qualified, eth- our rights and our liberties. of law, and her decisions will shape the ical, and honest? Will the nominee be As with past nominees, I have evalu- lives of the American people for gen- fair and evenhanded and independent? ated this nominee based on my long- erations to come. And will the nominee uphold the rights standing criteria, which ask: Is the As I said when she announced her res- and liberties of all Americans? nominee qualified, ethical, and honest? ignation, we live in a better America I am very comfortable that Judge Will the nominee be fair, evenhanded, due to her 24 years of service on the Alito is qualified, he is honest, and he and independent? And will the nominee Court. Justice O’Connor was often a is ethical. But whether he will be fair uphold the rights and liberties of all swing vote on those critical decisions. and evenhanded is another question. Americans? Her successor could easily change the And, as was discussed at his hearing, he Personally, I got involved in politics balance of power on the Court, which does have a troubling record for fight- because of another Supreme Court could dramatically shift the Court’s ing for the government and corpora- nomination, that of Clarence Thomas. ruling on so many issues. Because this tions and against individuals. He seems At the time, I was frustrated that aver- is a swing seat that could tip the to favor the entrenched power over the age Americans didn’t have a voice in Court’s balance of power, we need to little guy. His record does not give me the process that affects them so much. make sure that the person we confirm the confidence that everyone who I have worked to be the voice of work- is someone who will protect our rights comes before the Court will be treated ing families in my State, and I have and liberties. fairly. asked the questions they would ask. I Some have suggested that I should I am also deeply concerned about am voting to protect their interests. just go along and support the Presi- Judge Alito’s independence. We rely on I recognize the significance of a seat dent’s nominee. That is not the way I our courts as a critical check and bal- on the U.S. Supreme Court. The Con- make decisions. I have criteria that I ance against government abuse. That stitution directs Senators to provide use to evaluate all judicial nominees, independent check helps to protect our advice and consent on all judicial and Judge Alito is no different. rights. This is especially important nominees, and the people of my home Third, I am also well aware of how today because of the growing questions State of Washington have trusted me Judge Alito came to be the President’s of the expansion of Executive power. to be their advocate to safeguard their nominee. The President, as we all re- The Supreme Court will need to rights as I vote on judicial nominees. member, had nominated his counsel, evaluate whether recent Executive ac- I take that responsibility very seri- Harriet Miers, to the High Court, but tions are constitutional. Here Judge ously. That is why I have reviewed Ms. Miers was not acceptable to the Alito’s unbalanced minority view of Judge Alito’s past writings, studied his rightwing of the President’s party. I the scope of Executive power tells me answers to the Senate Judiciary Com- found it very interesting that before he does not have the independence to mittee, and asked to meet with him in her nomination, Republicans were de- be an adequate check on the Govern- my office. manding an up-or-down vote on the ment’s abuse of our rights. A lifetime appointment to the Su- Senate floor for anyone the President Finally, I have serious doubts that preme Court is a tremendous grant of nominated. But when President Bush Judge Alito will uphold our rights and unchecked power. If the Supreme Court nominated Ms. Miers, suddenly we liberties. One example is his hostility

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00055 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S90 CONGRESSIONAL RECORD — SENATE January 25, 2006 to the right of privacy. In the hearings, the protections of civil rights laws, devalued dentiary bar so high that it would be almost he refused to say that Roe v. Wade is individual rights, overturned or weakened impossible for a plaintiff to survive sum- settled law, and he did not adequately federal statutes, and narrowly reinterpreted mary judgment. In Sheridan v. E.I. de Ne- explain his 1985 statement that the precedent in the name of dispassionate appli- mours and Co., a hotel employee brought cation of the law. suit for sex discrimination in the failure to Constitution does not protect a right UNDERMINING CIVIL RIGHTS PROTECTIONS promote her. The District Court granted the to an abortion. EMPLOYMENT DISCRIMINATION employer summary judgment, and the case Last year, when I voted to confirm, was appealed to the Third Circuit. The issue Judge Alito has engaged in an effort to yes, Chief Justice John Roberts, I said was how much evidence a victim of discrimi- eviscerate the laws that seek to remedy vio- I was choosing hope instead of fear and nation must present to get her case to trial. lations of federal civil rights. This effort can In an en banc 10–1 decision in which Judge that Judge Roberts, through his an- be seen in particular in an evaluation of his Alito was the only dissenter, the majority swers, inspired such hope. Judge Alito, opinions in the area of employment discrimi- overturned the grant of summary judgment through his writings, his rulings, and nation. Judge Alito has written opinions in and sent the case back for trial. The major- his nonanswers, does not inspire con- eighteen employment discrimination cases ity held that a plaintiff would survive sum- and has sided with the plaintiff only four fidence in me that he will protect all mary judgment if she made her prima facie times, which includes one case in which he our rights. Because so much is on the case and presented evidence of pretext to sided with white police officers challenging line, because I do not believe he will be rebut the employer’s evidence. Judge Alito an affirmative action policy. He has evinced sufficiently independent or will uphold would have disregarded the evidence in deep skepticism about the legitimacy of plaintiff’s prima facie case if the employer our rights and liberties, I will respect- most discrimination claims and an unwar- presented evidence of a non-discriminatory fully vote against his confirmation to ranted belief that discrimination is rare in reason for its action and would have required the U.S. Supreme Court. our society. additional evidence of discrimination. Judge Mr. President, I ask unanimous con- In three cases in which Judge Alito would Alito’s approach misinterpreted a Supreme sent to print in the RECORD a letter have dismissed claims of harassment, he dis- Court case, St. Mary’s Honor Society v. played a lack of understanding of the dynam- from teachers around the country who Hicks, regarding litigants’ shifting evi- ics of harassment and hostile environment have opposed this nomination. dentiary burdens in Title VII cases. The ma- discrimination and their impact on a vic- There being no objection, the mate- jority’s interpretation of Hicks was re- tim’s workplace environment and psycho- rial was ordered to be printed in the affirmed by the Supreme Court in Reeves v. logical well-being. In one case, writing for Sanderson Plumbing Products, Inc. Although RECORD, as follows: the court, he upheld the exclusion of a report the dispute in Sheridan appears to be highly SOCIETY OF AMERICAN LAW TEACHERS, showing the harasser had previously har- technical, it is central to whether victims of January 9, 2006. assed another woman because ‘‘the report in discrimination will have their day in court. Re The Society of American Law Teachers’ no way put the City on notice that In another discrimination case in which Opposition to the Nomination of Judge Dickerson was harassing Robinson.’’ Samuel Alito to the United States Su- In another case, Pirolli v. World Flavors, Judge Alito dissented from the reversal of a preme Court. Inc., there was an undisputed evidence that grant of summary judgment, the majority said, ‘‘Title VII would be eviscerated if our Hon. ARLEN SPECTER, an employee with mental disabilities had suffered sexually motivated, physically abu- analysis were to halt where the dissent sug- Chair, Committee on the Judiciary, U.S. Senate, gests.’’ An African American woman was de- Washington, DC. sive workplace harassment. The trial court dismissed Pirolli’s claim, calling the quite nied promotion and alleged race discrimina- Hon. PATRICK LEAHY, tion. The issue was whether the employer’s Ranking Minority Member, Committee on the horrifying harassment mere macho horse- play. In a 2–1 decision, the Third Circuit re- evaluation that a white woman was the best Judiciary, U.S. Senate, Washington, DC. candidate was the result of discrimination. DEAR SENATORS SPECTER AND LEAHY: The versed and sent the case back for trial. Judge In spite of conflicting evidence, Judge Alito Society of American Law Teachers (SALT) Alito dissented, not because Pirolli had would have simply accepted the employer’s opposes—and urges all members of the Sen- failed to meet the legal standard for sexual judgment of who was the best candidate. The ate Judiciary Committee to vote against— harassment, but because his brief never ex- majority accused Judge Alito of overstep- the nomination of Judge Samuel Alito to the plicitly asserted that he suffered from a ping his judicial role and acting as a fact United States Supreme Court. SALT is the work environment that a reasonable person finder in resolving the conflicting evidence largest organization of law professors in the without mental retardation would find hos- in favor of the employer. Judge Alito’s hos- United States, representing more than 900 tile or abusive, even though all the necessary tility toward some employment discrimina- professors at more than 160 law schools. facts had been alleged. In other words, Judge tion cases was reflected in his dissent: SALT has taken a position opposing only a Alito would have dismissed the case for slop- ‘‘I have no doubt that in the future we are very few judicial nominations. It did not op- py brief writing. Additionally, he would have going to get many more cases where an em- pose the nomination of Justice Roberts or held Pirolli to a higher standard of reason- ployer is choosing between competing can- Harriet Meirs. However, it is deeply com- ableness than the law requires. Judge Alito didates of roughly equal qualifications and mitted to civil rights, individual rights and would have compared Pirolli to a reasonable the candidate who is not hired or promoted liberties, and an interpretation of federalism person without mental retardation. The Su- claims discrimination. I also have little that retains a robust role for Congress in preme Court had previously emphasized in doubt that most plaintiffs will be able to use protecting these rights. Judge Alito’s work Oncale v. Sundowner Offshore Services, Inc., the discovery process to find minor incon- in the United States Department of Justice Justice Scalia writing for the majority, that sistencies in terms of the employer’s having and fifteen year record on the United States the severity of the harassment is to be failed to follow its internal procedures to the Court of Appeals for the Third Circuit evi- judged from the perspective of a reasonable letter. We are allowing disgruntled employ- dence his disregard for all three. Replacing person in the plaintiff’s position—in this ees to impose the costs of trial on employers Justice Sandra Day O’Connor with Judge case, a reasonable person with a mental dis- who, although they have not acted with the Alito will result in the Court shifting pro- ability. intent to discriminate, may have treated foundly to the right. Lastly, in a dissenting opinion, Judge their employees unfairly.’’ A Knight-Ridder comprehensive review of Alito would have excluded evidence crucial Taken together, these cases reflect a pal- published opinions written by Judge Alito to the victim’s discrimination case in Glass pable hostility toward plaintiffs in employ- concluded that Alito has worked quietly but v. Philadelphia Electric Co. Mr. Glass had ment discrimination cases. resolutely to weave a conservative legal worked for Philadelphia Electric for twenty- agenda into the fabric of the nation’s laws three years and received only one job evalua- DISCRIMINATION IN JURY SELECTION . . . [His] record reveals decisions so con- tion less than satisfactory. He applied for Judge Alito has written troubling opinions sistent that it appears results do matter to and was denied many promotions. The em- in two death penalty cases where the defend- him . . . [He] rarely supports individual ployer explanation was based part in on the ants challenged jury selection as reflecting rights claims. . . [and] often goes out of his one sub-par evaluation Glass had received. discrimination. The cases are troubling for way to narrow the scope of individual rights. Glass tried to present evidence that during three reasons. First, they reflect a general While Judge Alito’s opinions are devoid of that time period he was assigned to a posi- hostility toward civil rights. Second, they explosive language and appear to reflect a tion where he was subject to racial harass- suggest that Judge Alito is among the most dispassionate application of law to facts, he ment and a hostile work environment. Amaz- conservative judges when it comes to the has used legal craftsmanship and existing ingly, Judge Alito’s dissent argued that al- death penalty (whereas Justice O’Connor was precedent in the service of predetermined re- lowing Glass to tell his side of the story frequently the swing vote in capital cases). sults. As Professor Lawrence Tribe has stat- might cause ‘‘substantial unfair prejudice’’ Third, one of the cases reflects Judge Alito’s ed, ‘‘I simply make a plea to quit pretending and, failing to do so was, in any case, harm- hostility to the use of statistics to prove dis- that law, life and an individual’s assump- less error. crimination. This hostility is most troubling tions about both can be entirely separated. In several cases, Judge Alito would have because statistics have been an important . . .’’ A judge’s values, beliefs and experi- granted summary judgment depriving plain- element of proof in creating an inference of ences do matter. Judge Alito has undermined tiffs of their right to trial by setting the evi- discrimination or a discriminatory impact.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00056 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S91 While picking a grand jury in Ramseur v. ment his earlier views. In a concurring opin- constitutional rights as stopping at the pris- Beyer, the judge announced that he was not ion rejected by the majority and subse- on door. He would have upheld a Pennsyl- randomly selecting jurors because he was quently rejected by the Supreme Court in vania law prohibiting certain inmates from trying to pick a cross section of the commu- Planned Parenthood v. Casey, Judge Alito having newspapers, magazines, and photos of nity, instead asking some prospective jurors, would have upheld a requirement that a their family and friends. In a death penalty including at least two African Americans, to woman notify her husband before having an case, Judge Alito wrote an opinion for the sit separately in the body of the courtroom. abortion. He discounted the liberty and bod- court rejecting a claim of denial of the right An en banc divided Third Circuit ruled ily integrity of the woman while showing to effective counsel. In the sentencing phase against Ramseur’s claim of an equal protec- great concern for the husband’s rights. Judge of the trial, the attorney had failed to look tion violation. Judge Alito wrote a separate Alito’s view that the spousal notification at materials he knew would be relied on by concurrence, making the astounding asser- provision in the law caused no undue burden the prosecutor, materials that would have tion that defendants have no constitutional to women suggests that he believes a woman revealed a range of mitigation leads. The Su- basis to challenge a grand jury when certain loses her autonomy rights when she marries. preme Court overturned Alito in a 5–4 deci- racial groups were treated differently in Even in two cases concerning abortion rights sion with Justice O’Connor in the majority. order to get a cross section jury. Equally dis- protections which had previously been EXTREME VIEW OF FEDERALISM AND SEPARA- mayingly, he suggested that defendants may struck down by the Supreme Court and in TION OF POWERS THAT WOULD LIMIT THE not be able to assert rights of jurors who are which Judge Alito was compelled to follow ROLE OF CONGRESS IN PROTECTING THE the victims of discrimination with respect to precedent, he wrote narrow concurring opin- HEALTH, SAFETY AND WELFARE OF ITS CITI- grand jury jurors (although the right is ions to insure that there was no language ZENS AND GIVE UNWARRANTED POWER TO clearly established for challenges to regular that might support the upholding of Roe or THE EXECUTIVE BRANCH jurors). Judge Alito reached well beyond inhibit the ability to further narrow the LIMITING THE ROLE OF CONGRESS what was necessary to decide the case in right to choose. Judge Alito has written two opinions that order to present radical ideas in dicta. Just as Judge Alito has denied the liberty reflect an extreme view of the limits of con- In Riley v. Taylor, the defendant was con- rights of women to control their bodies, his gressional power to pass legislation. He victed of felony murder and sentenced to decision striking down the Family and Med- voted to invalidate the federal prohibition death. Eventually he filed a motion in fed- ical Leave Act demonstrates that he has no on machine gun possession and part of the eral court challenging his conviction on nu- understanding of the distinctive burdens federal Family and Medical Leave Act. His merous grounds, including that peremptory women face in juggling work and family. decisions are consistent with his 1985 appli- challenges were used impermissibly to strike Likewise, his opinions have demonstrated a cation to be Deputy Assistant Attorney Gen- jurors based on race. The full Court reversed lack of understanding of the dynamics of eral, in which he wrote that he ‘‘believe[s] his conviction, in part based on a violation sexual harassment and its detrimental im- very strongly in . . . federalism. of his constitutional rights with respect to pact on victims of harassment. Even in cases In United States v. Rybar, Judge Alito ar- peremptory challenges. Judge Alito filed a involving fathers of unborn children, Judge gued in dissent that the federal ban on ma- dissenting opinion. Ramsey presented evi- Alito’s solicitude seems to apply only to chine gun possession, which had been on the dence that all three of the potential Black married couples. He has shown a lack of books in some form since 1934 is unconstitu- jurors were struck in his trial and that pros- sympathy for protection of people and cou- tional Commerce Clause legislation. The ecutors struck every potential Black juror in ples who are unmarried. In an immigration Commerce Clause undergirds many of the all four murder trials held the same year in case, Judge Alito held that it was justifiable most important civil rights, consumer pro- Delaware County. Judge Alito completely to permit a husband, but not a fiance to con- tection, worker protection and environ- discounted the statistical evidence, writing test a woman’s deportation to China where mental protection laws. Judge Alito argued that inferring discrimination was no more she fears coerced abortion of the couple’s un- that the majority’s theory would lead to the reasonable than attempting to explain why a born child. In another asylum case, Judge conclusion that Congress may ban purely disproportionate number of recent presidents Alito denied asylum to an Iranian woman intrastate possession of just about anything. were left handed. As the majority noted, the who asserted she would be persecuted for re- He rationalized his decision in part by claim- analogy ignored the underlying constitu- fusal to wear the traditional veil and for her ing that there were no congressional findings tional right and ‘‘minimize[d] the history of feminist beliefs if she returned to Iran. While or statutory bases for the law, thus imposing discrimination against prospective black ju- acknowledging that an asylum claim can be a new stringent fact-finding requirement for rors and black defendants.’’ Because of this based on gender-based persecution, Judge Congressional justification of its laws. He ig- history of discrimination, courts have con- Alito was not convinced that she would be nored common sense—the facts involved a li- sistently held that, barring another expla- willing to actually defy the authorities and censed gun dealer selling machine guns at a nation by the defendant, statistics can aid in therefore suffer the severe consequences al- gun show—transactions which involved proving discrimination. Judge Alito’s ap- leged. In other words, a woman must show interstate commerce. Additionally, he ig- proach would completely discount reliance her willingness to become a martyr in order nored references in conference reports and on on statistics to help prove discrimination to prevail in the typical gender-based asy- the floor of Congress concerning the effect of and would fly in the face of years of judicial lum case. the ban on interstate commerce. Judge decisions in discrimination cases. Alito’s colleagues accused him of institu- AN EXPANSIVE VIEW OF THE POLICE POWER AT ENDANGERING CORE LEGAL RIGHTS FOR tional disrespect by requiring the ‘‘coordi- THE EXPENSE OF INDIVIDUAL RIGHTS WOMEN nate branches of government’’ to ‘‘play’’ In cases raising issues of gender discrimi- Judge Alito has advanced an expansive show and tell with the federal courts at the nation, Judge Alito has written troubling de- view of the police power. His 1985 application peril of invalidating congressional statutes. cisions in which he appears to accept tradi- to the Justice Department expressed his dis- All of the other appellate courts which had tional notions of the subservient role of agreement with Warren Court decisions con- considered the law in the wake of United women in society and to deny the separate cerning criminal procedure. Since ascending States v. Lopez agreed with Judge Alito’s rights of women to control their own des- to the Third Circuit, he has in criminal cases colleagues, and all but one court to have tiny. consistently deferred to state courts, police, looked at the law since then has done the Judge Alito’s record, both prior to and sub- and prosecutors. In particular, he has writ- same. The Supreme Court rejected Judge sequent to joining the bench, reflects clearly ten a series of decisions narrowing the Alito’s restrictive view of Congress’ law- that he does not support the constitutional Fourth Amendment protection against un- making authority in Gonzales v. Raich. right to choose and that his elevation to the reasonable search and seizure. Judge Alito In another case concerning Congress’ law- Supreme Court would endanger this funda- has sat on at least twelve panels in which making authority, Judge Alito again advo- mental right. In 1985, while in the Solicitor judges agreed regarding a citizen’s Fourth cated an extremely narrow view of congres- General’s office, he wrote a memo offering Amendment rights. In each case, Judge Alito sional power. Chittister v. Department of his own strategy for using the government’s adopted the view most supportive of the gov- Community and Economic Development in- brief in Thornburgh v. American College of ernment’s position. volved a state employee who sued for dam- Obstetricians and Gynecologists to (1) ad- One of the most troubling examples of ages under the Family Medical Leave Act vance the goal of bringing about an eventual Judge Alito’s expansive view of law enforce- (FMLA) when his sick leave was revoked and overruling of Roe v. Wade, and (2) in the ment authority is his dissent in Doe v. he was terminated. Congress claimed the au- meantime to mitigate its effects by uphold- Groody, where he voted to approve the strip thority to pass the FMLA under section 5 of ing even the most burdensome barriers to search of a mother and her ten-year-old the Fourteenth Amendment on the grounds abortion. In the same year, Judge Alito sub- daughter, even though the search warrant that the Act attempted to remedy sex dis- mitted an application for a Justice Depart- obtained by the police did not name or refer crimination by allowing women to take ment promotion, wherein he wrote that he to either of them. As then Judge Michael leave without sacrificing their jobs. Judge was particularly proud of his contributions Chertoff wrote, Judge Alito’s position Alito held that Congress does not have the in cases in which the government has argued threatened to turn the Constitution’s search authority to give state employees the right to the Supreme Court that the Constitution warrant requirement into little more than a to sue their employers for damages for vio- does not protect the right to an abortion. ‘‘rubber stamp.’’ lating the FMLA. He rejected the justifica- Judge Alito’s record in the Third Circuit Other dissenting decisions of Judge Alito tion that the FMLA remedied sex discrimi- demonstrates that he has sought to imple- suggest that he views individual and other nation and claimed that Congress had failed

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00057 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S92 CONGRESSIONAL RECORD — SENATE January 25, 2006 to make any findings that state statutes had lack of empathy for or appreciation of the of Appeals for the Third Circuit, Judge discriminated against women. The preamble human condition and the role of courts in Alito participated in over 1,500 cases to the statute explicitly states that the pur- protection the rights of minorities. and authored more than 350 opinions. pose of the Act is to remedy sex discrimina- We urge you to reject the nomination of Prior to becoming a Federal appel- tion. There is of course, a long history of Judge Alito to the Supreme Court. late judge, Judge Alito established a litigation striking down state statutes Sincerely, disadvantaging women in the workplace. EILEEN KAUFMAN, record as a tough Federal prosecutor Nevertheless, Judge Alito would require Con- Co-President. while serving as the U.S. attorney for gress to engage in fact finding specifically TAYYAB MAHMUD, the District of New Jersey. directed at the FMLA. In a similar chal- Co-President. As the State’s top Federal law en- lenge, Nevada Department of Human Re- Mrs. MURRAY. Mr. President, I yield forcement official, Judge Alito oversaw sources v. Hibbs the Supreme Court later the prosecutions of drug traffickers, held that state employees can enforce their the floor. Mr. HATCH. Mr. President, today on terrorists, and organized crime figures. right to damages pursuant to a violation of He also cracked down on perpetrators another provision of the FMLA. this floor the distinguished Senator from Vermont, Mr. LEAHY, accused me of environmental crimes, creating a ADVOCATING AN EXPANSIVE SCOPE OF new position of Environmental Crimes EXECUTIVE POWER of misrepresenting him when I earlier characterized comments he has made Coordinator. Since the Nixon Administration, the coun- Prior to being unanimously con- try has witnessed a legal battle concerning about the nomination of Samuel Alito the scope of presidential authority under our to the Supreme Court. He would not firmed twice by the U.S. Senate, Judge Constitution. The present administration ad- yield to me at that time, and I want to Alito proved himself to be an effective vances an extreme, expansionist theory of set the record straight. advocate on behalf of the United States the scope of presidential power, both foreign This is how I characterized the Sen- while serving in the Office of the Solic- and domestic. The theoretical underpinnings ator from Vermont’s previous com- itor General. There, Judge Alito par- for the concept of the ‘‘imperial presidency’’ ments: ‘‘The Senator from Vermont, ticipated in more than 250 cases, argu- have been developed by writings of the Fed- ing 12 before the Supreme Court. Senator LEAHY, has repeatedly said eralist Society. Judge Alito’s 1985 applica- In sum, Judge Alito has served as a that, all by himself, Judge Alito is a tion to serve as Deputy Assistant Attorney judge on one of the Nation’s highest General in the Office of Legal Counsel (OLC) threat to the rights and liberties of all courts, as the top Federal prosecutor in boasts of his regular participation in the Americans literally for generations to Federalist Society, an involvement which one of the Nation’s largest Federal dis- come.’’ tricts, and as an advocate for the continues to this day. OLC, during his ten- The Senator from Vermont reacted United States in the Office of the So- ure, was the source of extreme thinking by saying that I was not even ‘‘within about expansive presidential power. For ex- licitor General. His 30 years of public the ballpark of accuracy.’’ ample, OLC opined that the executive branch service spans the full breadth of the This reaction was particularly per- could ignore congressionally authorized pro- law. cedures for federal procurement and deter- plexing because the latest example of Judge Alito is unarguably a highly mined that the President had constitu- the Senator from Vermont making qualified nominee. However, I told the tionally unfettered authority to determine such a statement had occurred just citizens of Colorado that I would also when to tell Congress of his covert initiative hours before. with regard to Iranian arms sales—even evaluate judicial nominees on their ju- This time, I will be careful to quote, dicial philosophy and commitment to though the power to regulate foreign trade is rather than characterize, what he said. an express congressional authority. the rule of law. In other memoranda which Judge Alito In his opening remarks today on the Specifically, I pledged to support wrote during his time at the Justice Depart- Alito nomination, the Senator from judges who rule on the law and facts ment, he argued in favor of expanded govern- Vermont said: ‘‘This is a nomination before them—not judges who attempt ment authority to intercept computer mes- that I fear threatens the fundamental to legislate from the bench. Judge sages and broader authority for government rights and liberties of all Americans, Alito’s judicial philosophy corresponds agents to set up shell companies to help with now and for generations to come.’’ with that promise. undercover operations. He also told the FBI That language is simply cut and pasted Judge Alito recognizes the limited that it was not bound by two district court from the statement as it appears on decisions restricting the Bureau’s power to role of the Federal judiciary, having investigate employees whose jobs were not the Senator from Vermont’s Web site. observed that ‘‘although the judiciary critical to national security. The Senator from Vermont made the has a very important role to play, it’s During his years on the bench, Judge Alito exact statement yesterday, during the a limited role. . . . It should always be has been extremely deferential to assertions Judiciary Committee’s business meet- asking itself whether it is straying of executive authority, particularly in the ing at which we considered the Alito over the bounds, whether it’s invading area of criminal law, and has gone out of his nomination. He said: ‘‘This is a nomi- the authority of the legislature, for ex- way to place limitations on Congress’s legis- nation that I fear threatens the funda- ample, whether it is making policy lative powers. It is this line of thinking that has spawned (1) unprecedented claims of ex- mental rights and liberties of all Amer- judgments rather than interpreting the ecutive privilege, (2) claims of authority to icans now and in generations to come.’’ law.’’ engage in torture, (3) claims to hold U.S. I was not only in the ball park, I was Like his view of the limited role of citizens indefinitely as enemy combatants standing on homeplate. the judicial branch, Judge Alito also and foreign nationals as enemy combatants The PRESIDING OFFICER. The Sen- recognizes the limits on the powers of in Guantanamo Bay without any right of re- ator from Colorado is recognized. the executive branch. Speaking on his view of that designation, and now (4) an ap- Mr. ALLARD. Mr. President, my understanding of the ‘‘unitary Execu- parent pattern of flagrant violations of the time to speak is not until 6:15. Since tive,’’ Judge Alito explained, ‘‘the idea Foreign Intelligence Surveillance Act by there is nobody else in the Chamber, I of the unitary Executive is that the sanctioning domestic wiretapping without obtaining a warrant. will proceed to speak on the nomina- President should be able to control the tion of Judge Samuel Alito to the U.S. executive branch. . . . [I]t goes just to CONCLUSION Supreme Court. With the retirement of Justice O’Connor, the question of control. It doesn’t go to the direction of the Court stands in the bal- The PRESIDING OFFICER. Without the question of scope.’’ ance. Judge Alito’s record demonstrates that objection, it is so ordered. Further, Judge Alito recognizes that he would shift the court radically rightward. Mr. ALLARD. Mr. President, I rise ‘‘[n]o person in this country, no matter His vision of federalism and separation of today in support of Judge Samuel how high or powerful, is above the law, powers would dangerously expand the power Alito, President Bush’s nominee as As- and no person in this country is be- of the executive and the states; shrink the sociate Justice to the U.S. Supreme neath the law.’’ This statement reflects power of Congress to protect the health, Court. his commitment to a principle so fun- safety and welfare of this nation’s citizens; Judge Alito has the experience, intel- damental to justice in this country and diminish the role of the courts in guard- lect, temperament, and integrity re- ing against discrimination and undue gov- that it is carved in stone over the en- ernment intrusion into individual rights. quired of a Supreme Court Justice. trance to the Supreme Court: ‘‘Equal Justice Alito’s opinions show an alarming He has more judicial experience than justice under law.’’ detachment from real life and real people. any Supreme Court nominee in 70 Consistent with the principle of equal His opinions are a historical and reflect a years. In his 15 years on the U.S. Court justice under law, Judge Alito does not

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00058 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S93 allow his personal opinion to decide the declined to answer 20 percent of ques- [From the Rocky Mountain News, Jan. 9, outcome of a case. He says ‘‘[a] judge tions. Justice Ginsburg received 96 2006] can’t have any agenda. . . . The judge’s votes in favor of her confirmation. ALITO PERSONIFIES JUDICIAL RESTRAINT only obligation—and it’s a solemn obli- Throughout the course of the de- No one seriously questions the qualifica- gation—is to the rule of law, and what manding process, Judge Alito dem- tions of federal appeals court Judge Samuel that means is that in every single case, onstrated great patience, humility, and Alito to sit on the Supreme Court: U.S. at- respect—all attributes of a tempera- torney, assistant to the solicitor general and the judge has to do what the law re- the attorney general, and a 15-year tenure on quires.’’ ment desirable for a Supreme Court the 3rd U.S. Circuit Court of Appeals. I believe that each of my colleagues justice. Former colleagues, including Democrats, would agree that judges should be held The hearings were also an oppor- who worked with Alito the prosecutor laud to this standard. Yet, at the same tunity for Judge Alito to set the record his insistence on defending the law rather time, some criticize Judge Alito’s straight on scurrilous attempts to im- than pursuing a political agenda. Keep that record for living up to it. pugn his integrity. Laid to rest is the in mind as confirmation hearings open in Washington today. Liberal interest groups For example, in Doe v. Groody Judge claim that he acted improperly by par- ticipating in a case involving Van- and some partisan Democrats are up in arms Alito argued in dissent that a search because Alito has served as a model of re- warrant authorized law enforcement guard, his mutual fund company. straint. officials to search everyone inside a Shares in Vanguard mutual funds are And that’s why the Senate should confirm drug dealer’s house, including the wife not an ownership interest in the Van- Judge Alito to succeed Sandra Day O’Con- and daughter. Even though he person- guard company, and Judge Alito had nor. He has refused to elevate his ideology ally ‘‘share[d] the majority’s visceral no legal or ethical obligation to recuse above the rule of law while showing def- erence to the crucial but limited rule the dislike of the intrusive search,’’ Judge himself. His ultimate decision to do so—beyond what the law requires— Founders envisioned for federal judges. Alito’s unwavering commitment to the On principle, the Senate should give the rule of law led him to do what he be- should be praised, not attacked. president substantial leeway to appoint fed- lieved the law required, despite his per- These and other attacks are nothing eral officials who share his views. And while sonal beliefs on the outcome. but thinly veiled attempts to distract candidates for life-tenured positions on the In sum, Judge Alito will serve as an from the impeccable record of a highly Supreme Court deserve thorough scrutiny, effective steward of the law and Con- qualified nominee. we are confident that the hearings will let Judge Alito’s jurisprudence and in- Alito earn the nation’s trust. stitution. His record evidences a deep tegrity have been praised by major On the bench, Alito has championed a gov- respect for the separation of powers newspapers, legal scholars, former law ernment with limited, defined powers. He has and other fundamental principles envi- clerks, and colleagues from both sides defended the First Amendment’s guarantee sioned by our Founding Fathers. I have of the aisle. of religious liberty, ruling against govern- no reason to believe Judge Alito will be ments that denied Muslims and Indians their The American Bar Association unani- ability to freely express their faiths. deferential to anyone or anything mously awarded Judge Alito its high- other than the law and the facts before In United States v. Rybar, he seconded the est rating of ‘‘well qualified.’’ The view articulated by the Supreme Court in him. ABA’s stated criteria for evaluating United States v. Lopez that the Constitu- As a representative of Colorado, I nominees are ‘‘integrity, professional tion’s Commerce Clause does not give Con- also appreciate the uniqueness of the competence and judicial tempera- gress unlimited power to regulate private ac- issues important to our State and the ment.’’ tions. And though in Planned Parenthood v. West. The departure of Justice O’Con- The judges with whom he has served Casey Alito wrote in favor of a spousal-noti- nor and Chief Justice Rehnquist marks on the Third Circuit offer their praise. fication requirement for abortions that the the loss of a Western presence on the Supreme Court later rejected, his law clerk Judge Tim Lewis, a former Clinton ap- at the time, self-described Democrat Jim Supreme Court. pointee, commended Judge Alito for Earlier this year, I asked President Goneia, told the Las Vegas Sun that he his role in discrimination cases. Judge ‘‘never had any clue what (Alito’s) personal Bush to nominate a judge who could Lewis, testifying in support of Judge opinion might be.’’ capably decide issues important to Col- Alito, said that ‘‘if I believed that Sam His measured approach has not slowed the orado and the West, such as water and Alito might be hostile to civil rights as partisan spinmeisters from lobbing scur- resource law. a member of the United States Su- rilous allegations—charging everything from When I asked Judge Alito about his preme Court, I guarantee you that I misogyny to racism. The left-wing interest groups portray Alito as someone who should understanding of Western resource and would not be sitting here today.’’ water law, I was pleased to learn that be under house arrest, rather than an accom- Major newspapers across the State of plished nominee with a distinguished re´ums´. he grew to appreciate the importance Colorado, including both the Rocky But Senate Democrats have an oppor- and complexity of these issues while Mountain News and the Denver Post, tunity to rise above the muck. We applaud working in the U.S. Solicitor General’s offer their praise for Judge Alito.’’’ their plan to focus on Alito’s views of the Office. He assured me that he under- The Rocky Mountain News says that proper balance of power between the presi- stands the uniqueness to the West of Judge Alito ‘‘personifies judicial re- dent and Congress. Concerns about executive such issues as water rights, the envi- straint’’ and ‘‘deserves confirmation. authority deserve special attention, particu- ronment, and public lands. . . . He has refused to elevate his ide- larly as the Bush administration prosecutes In conversing with Judge Alito, I the war on terror. ology above the rule of law while show- Barring any stunning surprises, Samuel couldn’t help but be reminded of my ing deference to the crucial but limited Alito should be confirmed. While we will meeting with now Chief Justice Rob- role the Founders envisioned for fed- surely disagree with some of his decisions, erts. Judge Alito is a man of great re- eral judges.’’ we’re confident that they will be soundly straint, delivering thoughtful, careful, Commenting on the temptation for reasoned and reflect respect for both the and thorough responses to my many Democratic Senators to cave to the de- Constitution and the law. questions—a further reflection of his mands of ‘‘left-wing interest groups Mr. ALLARD. Mr. President, Colo- view of the limited role of a judge. [who] portray Alito as someone who rado’s other major newspaper, the Den- Although America was already aware should be under house arrest, rather ver Post, proclaims that there is ‘‘no of Judge Alito’s distinguished record, than an accomplished nominee with a reason to block [the] Senate’s Alito the Judiciary Committee hearings were distinguished resume,’’ the Rocky vote . . .’’ On the threat of a Democrat helpful in shedding additional light on Mountain News points out that ‘‘Sen- filibuster, the Denver Post says ‘‘we his character, temperament, and integ- ate Democrats have an opportunity to don’t believe the arguments against rity, particularly in trying circum- rise above the muck’’ concluding that Alito merit a filibuster. . . . Alito has stances. ‘‘Samuel Alito should be confirmed.’’ served capably on the 3rd U.S. Circuit During the nearly 18 hours of ques- I ask unanimous consent to have the Court of Appeals for 15 years, and his tioning, Judge Alito was both open and January 9, 2006 Rocky Mountain News confirmation should rise or fall on a candid. He answered 97 percent of the editorial printed in the RECORD. majority vote.’’ nearly 700 questions that were asked of There being no objection, the mate- I ask unanimous consent that the him, declining to answer only 3 per- rial was ordered to be printed in the January 17, 2006, Denver Post editorial cent. By comparison, Justice Ginsburg RECORD, as follows: be printed in the RECORD.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00059 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S94 CONGRESSIONAL RECORD — SENATE January 25, 2006 There being no objection, the mate- The Senate debate should reflect that Now I have a couple of questions regarding rial was ordered to be printed in the the job of a judge is to review cases im- what some see as attacks upon judicial inde- pendence. Does anyone think that the public RECORD, as follows: partially, not to advocate issues. is criticizing courts because the judges on [From the Denver Post, Jan. 17, 2006] Judges should be evaluated on their those courts are thought to be following the NO REASON TO BLOCK SENATE’S ALITO VOTE qualifications, judicial philosophy, and Constitution? Or, are courts being criticized Judge Samuel Alito managed to navigate respect for the rule of law. because some judges are seen as expounding his way through last week’s Senate Judici- It would be unfortunate and irrespon- politics instead of a constitution? It would ary Committee hearings without upsetting sible for any of my Senate colleagues certainly be independent of any court to con- supporters’ high hopes or relieving oppo- to continue to politicize the judicial tradict the Constitution, but it would also be nents’ high anxiety. confirmation process. Judge Alito is unscrupulous and, to use John Marshall’s Though his testimony to the committee word, ‘‘immoral’’ of them. was never too revealing, Alito demonstrated eminently qualified, and he deserves a Roger J. Miner wrote an admonition to us his qualifications for the high court, and he’s swift up-or-down vote. lawyers that I ran across about seventeen likely to be confirmed. We wish we could be I intend to vote in favor of Judge (17) years ago: ‘‘Should Lawyers Be More enthusiastic, but Alito’s record is troubling Samuel Alito’s confirmation as the Critical of Courts?’’ Judge Miner’s reproof in such areas as reproductive rights, privacy 110th Justice to the United States Su- was more recently reprinted in The Colorado and executive power. If he rises to the Su- preme Court and I strongly urge my Lawyer: ‘‘Judges’’ Corner—Criticizing the preme Court, we hope Alito will follow the Courts: a Lawyer’s Duty.’’ To his dismay, colleagues to do the same. what Judge Miner had noticed was lawyers’ letter of the law and not the call of ideology I believe that Judge Alito will not be or the urging of special interests. Associates ‘‘reluctance to criticize judge-made law, spe- who have worked with Alito over the years an activist judge and supports limits cific judicial decisions, or the qualifications offer welcome assurances that he can be an on the judiciary. of individual judges’’. He quoted Justice Rob- impartial figure and not a clone of Clarence I ask unanimous consent to have ert H. Jackson to the effect that the public Thomas on the far right side of the bench. printed in the RECORD a letter from at- rightfully looks to lawyers (as the only We tend to agree with Sen. Dianne Fein- torney William Banta in which he dis- group that knows how well judicial work is stein, D–Calif., who said on Sunday, ‘‘This is cusses judicial independence, judicial being done) ‘‘to be the first to condemn prac- a man I might disagree with. That doesn’t tices or tendencies that they see departing activism, and judicial usurpation, now from the best judicial traditions’’. Does any- mean he shouldn’t be on the court.’’ Like referred to by many of us as just judi- Feinstein, we don’t believe the arguments one think, as Judge Miner would, that the against Alito merit a filibuster. cial activism. public has reason to be disappointed in us Alito needs a simple majority to win con- There being no objection, the mate- lawyers for not being properly critical of firmation unless opponents try to extend de- rial was ordered to be printed in the judges who deviate from their oaths to sup- bate indefinitely; then 60 senators must RECORD as follows: port the Constitution that governs them? agree to a vote. Republicans have 55 sen- As lawyers, we need to understand what is Englewood, CO, September 6, 2005. going on here. To its credit, the established ators, and many are willing to ban judiciary Re: A Lawyer’s Duty—Judicial Independ- filibusters if that’s what it takes. bar does not directly dispute the right of ence, Judicial Activism, and Judicial Americans to criticize their judiciary. How- In the end, Republicans will probably sup- Usurpation. port Alito en masse and most Democratic ever, only a very few lawyers have spoken senators will vote no, reflecting both parties’ Hon. WAYNE ALLARD, out in defense of Chief Justice Marshall’s in- expectation of his future role. Much atten- U.S. Senate, Dirksen Senate Building, Wash- sistence on judicial scruples—the established tion is being paid to the ‘‘Gang of 14,’’ the co- ington, DC. bar is more apt to rationalize, excuse, or even defend in the name of ‘‘judicial inde- alition (including Colorado Sen. Ken Sala- DEAR SENATOR ALLARD: Recently there has pendence’’ the conduct of judges who act zar) that vowed to avoid filibusters except been an outcry from the established bar in contrary to the language of the Constitu- under extraordinary circumstances. This defense of judicial independence. However, tion. It is almost as if Supreme Court deci- isn’t one of them; Alito has served capably very little has been said against judicial ac- sions were infallible so that it would be ir- on the 3rd U.S. Circuit Court of Appeals for tivism, which used to be referred to as ‘‘judi- reverent of lawyers to challenge them very 15 years, and his confirmation should rise or cial usurpation’’. Because of the present ten- sion between them, it behooves us as lawyers much. fall on a majority vote. Not only Chief Justice Marshall but Chief We hope Alito will moderate his views if to understand the relationship between judi- cial activism and judicial independence. Justice Harlan F. Stone would not have it. voted to the court of last resort. His state- Chief Justice Stone said, ‘‘I have no patience ments about Roe vs. Wade suggest he op- Marbury v. Madison is a good place to begin. While Marbury is typically used to justify with the complaint that criticism of judicial poses abortion-rights, which we favor, while action involves any lack of respect for the his support for the ‘‘unitary executive’’ the- a court’s prerogative to say what the law is, there is a discipline to the case that is either courts. When the courts deal, as ours do, ory, which exaggerates the powers of the with the great public questions, the only president, is chilling given the current de- overlooked or not discussed in polite legal company. Chief Justice Marshall bases the protection against unwise decisions, and bate on domestic surveillance and the bal- even judicial usurpation, is careful scrutiny ance of powers among the branches of gov- Marbury decision upon the American peo- ple’s original right to establish a constitu- of their action and fearless comment upon it. ernment. Some of Alito’s dissents on the 3rd The point is this: when a court takes it tion, the principles of which are ‘‘funda- Circuit inspire disbelief, such as his defense upon itself to engage in politics, social ex- mental’’ and which are to be ‘‘permanent’’. of a police officer who strip-searched a 10- perimentation, or baseless lawmaking con- The case itself involved three issues: (1) year-old girl whose father was wanted on trary to the Constitution, the American peo- whether Mr. Marbury had a right to his com- drug charges. ple, if not the established bar, tend to hold mission as justice of the peace; (2) if so, We urged President Bush to choose a cen- that court accountable. In holding judicial whether there was a remedy available to him trist to succeed retiring Justice Sandra Day feet to constitutional fire, critics are not to secure his commission; and (3) whether O’Connor, but once his first choice, Harriet threatening judicial independence; they are the remedy was a writ of mandamus from Miers, was blocked, it was inevitable that he reprehending those judges, those public serv- would seek out a nominee with proven con- the Supreme Court of the United States. ants, who overstep their roles and thereby servative credentials. That’s Alito, to be Marshall said ‘‘yes’’ to the first two issues become ‘‘activist’’. sure. Wherever he serves, we hope Alito exer- and ‘‘no’’ to the third issue. The purpose of the Constitution’s Article cises his approach to the law in a way that The Chief Justice held that the Supreme III lifetime tenure and undiminished com- affords Americans all the protections due Court lacked the power to issue a writ of pensation for Federal judges and the purpose under law and the Constitution. mandamus for Mr. Marbury’s commission be- of Colorado’s constitutional and statutory cause the Constitution did not provide for provisions for judicial nominations, appoint- Mr. ALLARD. Mr. President, I am the exercise of such original jurisdiction pleased to see that these Colorado pub- ments, and retentions are to insulate judges even though an Act of Congress (the Judici- from political pressures as much as practical lications join me in recognizing that ary Act of 1789) did. In ruling against the Su- . . . providing them with a measure of inde- Judge Alito is the type of judge that preme Court’s having jurisdiction, John Mar- pendence to decide cases with restraint and Coloradans—and all Americans—de- shall declared the obedience of courts to the impartiality. Yet, if a judge commandeers serve. Constitution, the Constitution being ‘‘a rule the law, usurps the jurisdiction of the other In conclusion, Judge Alito is one of for the government of courts, as well as of governmental branches, or overpowers the the most qualified judicial nominees the legislature.’’ rights of the people, is he not frustrating the ever. He is deeply committed to the To paraphrase Chief Justice Marshall, purpose of judicial independence? judges are subject to the Constitution; the That brings me to my last question: isn’t rule of law, he recognizes the limited Constitution is not subject to judges. The the real threat to judicial independence judi- role of the judiciary, and he has the ju- force behind the Marbury decision is the re- cial activism itself? We needn’t have come to dicial temperament fitting of a Su- straint and responsibility required of the ju- this pass had we, as lawyers and judges, in- preme Court justice. dicial branch. sisted on judges remaining faithful to ‘‘the

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00060 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S95 best judicial traditions’’. Too often we justi- ald Reagan in 1984, is the Chief Judge of the sions are not academic exercises but have fied baseless decisions on the unsteady prom- 3rd Circuit. Judge Maryanne Trump Barry far-reaching consequences on people’s lives.’’ ise of political results or indulged the senti- has served on the 3rd Circuit since President Judge Barry on Judge Alito’s service as ment that the Constitution is whatever a Bill Clinton appointed her in 1999. Judge U.S. Attorney . . . ‘‘The tone of a United court says it is. Incidentally, to that utter- Barry also worked in the U.S. Attorney’s of- States Attorney’s Office comes from the top. ance of Charles Evans Hughes, Theodore fice with Judge Alito in the late 1970s. Judge The standard of excellence is set at the top. Roosevelt rejoined that the Constitution be- Ruggero Aldisert, appointed by President Samuel Alito set a standard of excellence longed to the American people and not to the Lyndon Johnson in 1967, is a Senior Judge on that was contagious—his commitment to judges. the 3rd Circuit and formerly its Chief Judge. doing the right thing, never playing fast and By not remarking the wrong of judicial ac- Former Judge John Gibbons, appointed by loose with the record, never taking a short- tivism all along, the established bar must President Richard Nixon in 1970, served on cut, his emphasis on first-rate work, his fun- now be careful not to excuse judicial activ- the 3rd Circuit until 1990 when he retired to damental decency.’’ ism in an ambiguous effort to preserve judi- become a professor of law at Seton Hall. As Judge Aldisert on Judge Alito’s judicial cial independence. The risk of confusing ju- a federal prosecutor, Judge Alito had argued independence . . . ‘‘Judicial independence is dicial activism with judicial independence cases before Judge Gibbons, and Judge Gib- simply incompatible with political loyalties, could compound our problem so that the bons has stated that he has followed Judge and Judge Alito’s judicial record on our public comes to see the whole thing as a Alito’s work since 1990. Judge Leonard court bears witness to this fundamental mess of our own making. If that happened, Garth, appointed by President Richard Nixon truth.’’ the American people could demand direct po- in 1973, is a Senior Judge on the 3rd Circuit. Judge Aldisert on working with Judge litical control over those who had Wayne Judge Alito served as his law clerk in 1976– Alito for 15 years . . . ‘‘We who have heard Allard lost the self-control upon which Chief 1977. Former Judge Tim Lewis, appointed by his probing questions during oral argument, Justice Marshall insisted, those who became President George H.W. Bush in 1992, served we who have been privy to his wise and in- unaccountable to the law they had taken an on the 3rd Circuit for seven years before re- sightful comments in our private decisional oath to support. tiring to enter private practice, where he conferences, we who have observed at first To avoid such a misfortune, it might be a does significant work in civil rights and hand his impartial approach to decision- good idea to revisit the instruction manual. human rights law. Excerpts from their testi- making and his thoughtful judicial tempera- Perhaps we could think about whether the mony follow. ment and know his carefully crafted opin- Constitution is our bedrock foundation or Judge Becker on working with Judge Alito ions, we who are his colleagues are convinced more like a nomad’s tent pitched on shifting up close . . . ‘‘There is an aspect of appellate that he will also be a great justice.’’ sands. We might ask ourselves whether we judging that no one gets to see—no one but Judge Garth on Judge Alito’s lack of an ought to dismiss the Constitution as an out- the judges themselves: how they behave in agenda . . . ‘‘I can tell you with confidence dated 18th century document or recognize conference after oral argument, at which that at no time during the 15 years that that it was designed in light of human expe- point the case is decided, and which, I sub- Judge Alito has served with me and with our rience and human nature to endure for all mit, is the most critically important phase colleagues on the court and the countless time. And we can mull over whether our of the appellate judicial process. In hundreds number of times that we have sat together in Constitution should really be an adventure of conferences, I had never once heard Sam private conference after hearing oral argu- in judicial dead reckoning or whether, in- raise his voice, express anger or sarcasm, or ment, has he ever expressed anything that stead, the written Constitution provides a even try to proselytize. Rather, he expresses could be described as an agenda. Nor has he reliable compass, trusty sextant, and in- his views in measured and temperate tones.’’ ever expressed any personal predilections spired chart for the American people. Judge Becker on Judge Alito’s intellect about a case or an issue or a principle that My impression is that commentators and and open-mindedness . . . ‘‘Judge Alito’s in- would affect his decisions.’’ many in the public are way ahead of us law- tellect is of a very high order. He’s brilliant, Judge Garth on Judge Alito’s personality yers and judges on these concerns. Nonethe- he’s highly analytical and meticulous and . . . ‘‘Sam is and always has been reserved, less, I hope that we are able to help out here careful in his comments and his written soft spoken and thoughtful. He is also mod- so that, as Judge Miner would prefer, ‘‘the work. He’s a wonderful partner in dialogue. est, and I would even say self-effacing. And judiciary is strengthened, the rule of law is He will think of things that his colleagues these are the characteristics I think of when reinforced, and the public duty of the bar is have missed. He’s not doctrinaire, but rather I think of Sam’s personality. It is rare to performed.’’ is open to differing views and will often find humility such as his in someone of such Very truly yours, change his mind in light of the views of a extraordinary ability.’’ WILLIAM M. BANTA, colleague.’’ Judge Gibbons on Judge Alito’s independ- Attorney at Law. Judge Becker on whether Judge Alito is an ence from the executive . . . ‘‘The com- ideologue . . . ‘‘The Sam Alito that I have mittee members should not think for a mo- Mr. ALLARD. Thank you, Mr. Presi- sat with for 15 years is not an ideologue. He’s ment that I support Judge Alito’s nomina- dent. I yield the floor. not a movement person. He’s a real judge de- tion because I’m a dedicated defender of [the The PRESIDING OFFICER. The Sen- ciding each case on the facts and the law, Bush] administration. On the contrary, I and ator from Arizona is recognized. not on his personal views, whatever they my firm have been litigating with that ad- Mr. KYL. Mr. President, I ask unani- may be. He scrupulously adheres to prece- ministration for a number of years over its mous consent to have an item printed dent. I have never seen him exhibit a bias treatment of detainees held at Guantanamo in the RECORD. against any class of litigation or liti- Bay, Cuba, and elsewhere. And we are cer- There being no objection, the mate- gants.... His credo has always been fair- tainly chagrined at the position that is being rial was ordered to be printed in the ness.’’ taken by the administration with respect to Chief Judge Scirica on Judge Alito’s per- those detainees. RECORD, as follows: sonal character . . . ‘‘Despite his extraor- ‘‘It seems not unlikely that one or more of SENATE REPUBLICAN POLICY COMMITTEE: FEL- dinary talents and accomplishments, Judge the detainee cases that we are handling will LOW JUDGES TESTIFY IN SUPPORT OF ALITO Alito is modest and unassuming. His be before the Supreme Court again. I do not NOMINATION thoughtful and inquiring mind, so evident in know the views of Judge Alito respecting the On January 12, 2006, five sitting and two his opinions, is equally evident in his per- issues that may be presented in those cases. former judges from the U.S. Court of Appeals sonal relationships. He is concerned and in- I would not ask him. And if I did, he would for the 3rd Circuit testified on behalf of terested in the lives of those around him. He not tell me. I’m confident, however, that, as Judge Samuel Alito’s nomination to the Su- has an impeccable work ethic, but he takes an able legal scholar and a fair-minded jus- preme Court. The judges included nominees the time to be a thoughtful friend to his col- tice, he will give the arguments—legal and of Presidents Lyndon Johnson, Richard leagues. He treats everyone on our court, factual—that may be presented on behalf of Nixon, Ronald Reagan, George H.W. Bush, and everyone on our court staff, with re- our clients careful and thoughtful consider- and Bill Clinton. Collectively they have spect, with dignity, and with compassion. He ation, without any predisposition in favor of served with Judge Alito for more than 75 is committed to his country and to his pro- the position of the executive branch.’’ years, watching him work and evaluating his fession. But he is equally committed to his Judge Lewis on his own liberal politics . . . intellect, character, independence, and judg- family, his friends, and his community. He is ‘‘I am openly and unapologetically pro- ment. Their collective endorsement should an admirable judge and an admirable per- choice and always have been. I am openly— be taken seriously by Senators considering son.’’ and it’s very well known—a committed this nomination. Chief Judge Scirica on Judge Alito’s open- human rights and civil rights activist and The judges included the following individ- mindedness . . . ‘‘Like a good judge, he con- am actively engaged in that process as my uals. Judge Edward Becker, appointed by siders and deliberates before drawing a con- time permits. . . . President Ronald Reagan in 1981, is a Senior clusion. I have never seen signs of a predeter- ‘‘I am very, very much involved in a num- Judge on the 3rd Circuit and formerly its mined outcome or view, nor have I seen him ber of endeavors that one who is familiar Chief Judge. (Note: a Senior Judge continues express impatience with litigants or with with Judge Alito’s background and experi- to serve on the court and hear cases on a colleagues with whom he may ultimately ence may wonder—‘Well, why are you here limited basis; he is not retired.) Judge An- disagree. He is attentive and respectful of all today saying positive things about his pros- thony Scirica, appointed by President Ron- views and is keenly aware that judicial deci- pects as a justice on the Supreme Court?’

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00061 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S96 CONGRESSIONAL RECORD — SENATE January 25, 2006 ‘‘And the reason is that having worked Alito’s favor. The candidate is bookish and A Supreme Court Justice should be with him, I came to respect what I think are uncomfortable in the limelight? All the bet- deeply familiar with American con- the most important qualities for anyone who ter for a position on the nation’s most delib- stitutional law. Judge Alito has spent puts on a robe, no matter what court they erative, most cerebral panel. his entire professional life grappling will serve on, but in particular, the United Many commentators have noted that the States Supreme Court.’’ even-keeled Alito presents himself far dif- with constitutional jurisprudence— Judge Lewis on Judge Alito’s honesty and ferently from Robert Bork, the famously re- serving as a Federal prosecutor at both integrity . . . ‘‘As Judge Becker and others jected conservative nominee of 1987. the trial and appellate level, as the have alluded to, it is in conference, after we Well, yes. Alito was not combative in the government’s lawyer before the Su- have heard oral argument and are not face of relentless grilling, as Bork was. And preme Court, and as a constitutional propped up by law clerks—we are alone as he wears no wicked-looking beard. But it would seem that Alito’s imminent lawyer in the Justice Department be- judges, discussing the cases—that one really fore becoming a judge. Nobody who gets to know, gets a sense of the thinking of success is less a matter of televised theat- our colleagues. And I cannot recall one in- rics, facial adornment or even judicial phi- watched Judge Alito’s testimony would stance during conference or during any other losophy than it is a reflection of the public’s deny that he is a brilliant legal thinker experience that I had with Judge Alito, but expectations of a jurist. with a deep and textured under- Unquestionably, the public wants jurists to in particular during conference, when he ex- standing of our Nation’s jurisprudence. be fair, and it seems to believe that Alito hibited anything remotely resembling an A Supreme Court Justice should have will live up to that standard. The public ideological bent.’’ wants a jurist who respects the judgment of unassailable integrity. Here, I look to Judge Lewis on Judge Alito and civil other courts, but it also wants one who un- those who know him best. rights . . . ‘‘If I believed that Sam Alito derstands that Job 1 is to interpret the Con- First, the American Bar Association, might be hostile to civil rights as a member stitution. in finding him unanimously ‘‘well- of the United States Supreme Court, I guar- Sometimes, Supreme Court judges have qualified’’ to serve, conducted more antee you that I would not be sitting here found those two directives in conflict. The today. . . . My sense of civil rights matters than 300 interviews with people who public, and most of the senators who rep- know Judge Alito on a professional and and how courts should approach them juris- resent it, seems to believe Alito will find his prudentially might be a little different. I be- way through those conflicts fairly and intel- personal basis. They have reported that lieve in being a little more aggressive in ligently. the high praise for Judge Alito’s integ- these areas. But I cannot argue with a more But most of all, Alito appears to have won rity was ‘‘consistent and virtually restrained approach. As long as my argu- over converts because he has demonstrated unanimous.’’ I repeat, it was ‘‘unani- ment is going to be heard and respected, I the trait that increasingly seems to distin- mous.’’ know that I have a chance. And I believe guish great jurists from mediocre-to-good Second, let’s look at what the judges that Sam Alito will be the type of justice ones: He can explain why. of the U.S. Court of Appeals for the who will listen with an open mind and will We all wish to know why. With all due re- not have any agenda-driven or result-ori- spect to President Bush’s previous nominee, Third Circuit had to say. Seven current ented approach.’’ Harriet Miers, it was not enough that—wink, and former judges testified on Judge Judge Lewis on why he endorses Judge wink—her vote on the ‘‘right’’ issues was en- Alito’s behalf—judges who were nomi- Alito . . . ‘‘I am here as a matter of principle sured. Indeed, that constituted the most nated by Presidents Johnson, Nixon, and as a matter of my own commitment to damning argument against her. Reagan, the first President Bush, and justice, to fairness, and my sense that Sam Alito, by contrast, has won support be- Clinton. Collectively, they have served Alito is uniformly qualified in all important cause senators believe that his decisions will respects to serve as a justice on the United with Judge Alito for more than 75 be grounded and argued in the facts of the years. They praised his fairness, his in- States Supreme Court.’’ law, not in some predisposed political preju- tegrity, his open-mindedness, his tem- Mr. KYL. Mr. President, I ask unani- dice that is unsupported by the case before perament, his intellect, and his devo- mous consent that the attached edi- him. And that is a powerful argument for Alito tion to the rule of law. torial by the Arizona Republic, dated all by itself. Finally, a Supreme Court Justice January 24, be printed in the RECORD of Mr. KYL. Mr. President, I rise in sup- must know the difference between the this debate on the confirmation of port of Judge Alito’s nomination to the judicial role and the legislative or ex- Judge Samuel Alito to the U.S. Su- Supreme Court and urge my colleagues ecutive function. This qualification is preme Court. The editors’ support for to quickly confirm him. sometimes difficult to decipher, but Judge Alito is welcome, and their I begin by observing that the party- there are several clues that can guide statement that ‘‘Judge Alito is a supe- line vote in the Judiciary Committee us. rior candidate for the high court re- yesterday raises a troubling question First, a long judicial record helps, gardless of his political leanings’’ is ab- for the full Senate, and it is basic to and Judge Alito gives us that. There is solutely true. our deliberations. What is the proper not a trace of judicial activism in his There being no objection, the mate- test for determining whether to con- record. rial was ordered to be printed in the firm a nominee to the Supreme Court? Second, a judge cannot have a policy RECORD, as follows: Until very recently, the Senate has agenda. He or she must defer to the po- [From the Arizona Republic, Jan. 24, 2006] evaluated whether the nominee was litical branches on policy questions. ALITO: WISE IN THE WAYS OF ‘‘WHYS’’ qualified—that is, whether he or she Judge Alito agreed, testifying, ‘‘We If America is not on pins and needles over possessed the requisite experience, in- [judges] are not policymakers and we today’s Senate Judiciary Committee vote on tegrity, and temperament to serve. But shouldn’t be implementing any sort of Samuel Alito for the U.S. Supreme Court, policy agenda or policy preferences perhaps this Web site headline on Monday a new test has been proposed by Judici- helps provide an explanation: ary Committee Democrats: will the that we have.’’ Judge Alito’s colleagues ‘‘Feingold unsure of Alito’’—WSAW–TV, nominee provide assurances that he or on the Third Circuit appeals court con- Wausau, Wis. she will rule a particular way on cases firmed this. For example, Judge If one of the Senate’s most solidly liberal sure to come before the Court? Aldisert testified that ‘‘at no time dur- members, Sen. Russ Feingold, D–Wis., re- Before I discuss the ramifications of ing the 15 years that Judge Alito has mains uncertain about President Bush’s that troubling question, though, I served with me and with our colleagues nominee one day prior to his scheduled Judi- would like to apply the traditional on the court, and the countless number ciary vote, prospects for derailing the nomi- nation in the full Senate would seem dim. test—the proper test—to the nominee of times that we have sat together in We’ll see how the votes pan out. Still, it is before us. private conference after hearing oral worth wondering: Where did the drama go? A Supreme Court Justice should be argument, has he ever expressed any- The most obvious answer among many is an experienced judge. Samuel Alito has thing that could be described as an that Alito is a superior candidate for the more Federal judicial experience than agenda.’’ high court regardless of his political all but one nominee in U.S. history, Third, a judge must not twist stat- leanings. After 15 years on the bench, Alito Horace Lurton, who was nominated by utes or constitutional provisions to has established a lengthy track record as a President Taft. In 15 years of service, reach a result he favors. As Judge Alito fair jurist who has struck a proper balance between his own constitutional interpreta- Judge Alito has authored more than 360 testified, ‘‘Judges don’t have the au- tions and those of other courts. opinions and participated in more than thority to change the Constitution. Even his obvious discomfort at the begin- 4,800 decisions. It is an extensive The whole theory of judicial review ning of his Judiciary hearings worked to record. . . . is contrary to that notion.’’ In

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00062 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S97 other words, a judge must accept that The minority members of the Judici- determine whether Executive action is au- the Constitution will sometimes re- ary Committee did not question Judge thorized by, or otherwise consistent with, quire him to make rulings that he Alito’s qualifications. Rather, they the enactment. might disagree with. Politicians are tried to get him to commit to certain The Supreme Court had not ruled on free to vote their convictions; judges results in cases that are sure to come the wisdom or appropriateness or con- must put their personal views aside. I before the courts. They want to see stitutionality of physician-assisted sui- will have more to say about this issue certain policy goals enacted into law. cide, but the Senator was critical of in a few moments. Now, we all want our policy goals to Chief Justice Roberts because he had Fourth, the judge must have the become law, but our aim should be en- not voted to uphold assisted suicide, right understanding of the ‘‘living Con- acting constitutional legislation, not and the Senator didn’t think Sam Alito stitution.’’ Our Constitution must al- relying on the courts to enact our pol- would either. One could fervently agree ways remain alive to new situations icy preferences. with the Senator on the policy issue, that the Founders did not contemplate. In my September statement sup- yet interpret the statute in a way that But the judge must apply the constitu- porting Judge Roberts, I explained that requires a different result. But, it ap- tional provisions in the way that most this same dynamic had played itself pears, results are all that matter. As another example from yesterday’s closely approximates the meaning of out during his hearings. It is apparent committee meeting, a Senator said the text and the underlying principles that there is now a fundamental dif- that protecting wetlands was very im- as understood when drafted. The Con- ference between the majority and the portant, and wanted to make sure that stitution is not infinitely malleable. It minority parties on this matter. We be- Judge Alito would allow the Federal is not a blank slate for the judicial lieve the courts should not try to im- Government to protect them under the branch to draw upon. It has no ‘‘trajec- pose policy results in their decisions; Clean Water Act. The Senator ac- tory’’ or ‘‘evolutionary theme.’’ It is a they should just decide the questions of knowledged that the underlying con- text—words with meanings. If the Con- statutory interpretation and constitu- stitutional question was the extent of stitution can be twisted to mean any- tional meaning. Congress’s power to regulate non-navi- thing, then it ultimately means noth- For the Supreme Court, the results gable waterways which, arguably, are ing, and then we live under the rule of are—or should be—simply a function of not in interstate commerce. That is a judges, not the rule of law. the proper application of the Constitu- thorny constitutional question. But, Judge Alito respects the proper divi- tion and law to the facts of each case. rather than acknowledging that Con- sions within American constitutional To the minority, however, that’s not gress might have gone too far in exer- government. As he explained in his tes- enough. As many minority Senators cising its power to regulate interstate timony, the judiciary ‘‘should always have expressed, they are not going to commerce, the Senator was troubled be asking itself whether it is straying vote for a nominee who will not assure that Judge Alito’s future votes on pro- over the bounds, whether it’s invading them that he will vote the way they tecting wetlands could not be pre- the authority of the legislature [or] want in future cases. I submit that dicted. making policy judgments other than that is wrong. As Judge Alito testified, Now, I don’t mean to single out any interpreting the law.’’ He emphasized ‘‘Results-oriented jurisprudence is one Senator, because the same thing that judges have a duty to police them- never justified because it is not our job happened throughout the committee selves through what he called the ‘‘con- to produce particular results.’’ meeting. Senator after Senator would stant process of re-examination on the Yesterday’s meeting of the Judiciary bring up the results of decisions by part of the judges.’’ If all judges en- Committee illustrates that many Sen- Judge Alito without any regard as to gaged in this process of re-examina- ators have adopted this results-ori- why he reached a certain result, such tion, the quality of justice in this Na- ented approach to the confirmation as their procedural disposition, the tion would improve dramatically. process. The wrong questions are being proper standard of review, the gov- Judge Samuel Alito is not going to asked, and the wrong answers are being erning case law of the Supreme Court legislate from the bench or bend the demanded. The right question is how or the Third Circuit, or the legal rea- Constitution to suit any political pref- the nominee will do his job, not what soning that Judge Alito used. It was all erences that he might have. He is not the nominee will decide. This funda- about results. going to rely on foreign law, but will mental point is getting more and more As a final example, another Senator look to our American traditions. He is lost with each passing confirmation wanted Judge Alito to tell him that it not going to apply the Constitution as battle. was unconstitutional for the President he wishes it might be, but as it is writ- Let me give a few examples. Yester- to take major military action against ten. In exercising this judicial re- day a Senator said that it was nec- Iran or Syria absent prior congres- straint, Judge Alito will protect the essary to vote against Judge Alito be- sional authorization. He was exas- people’s ability to govern themselves— cause that Senator believes in a right perated that Judge Alito wouldn’t just and that is ultimately what is at stake. to abortion and there is no guarantee prejudge the question, which the Sen- That is why I support Judge Alito. that Judge Alito will agree with that ator called ‘‘basic,’’ and say that the Here is a man who is the son of an im- position in a future case dealing with President could not do so. But Judge migrant, comes from a modest back- abortion regulations. Alito gave the judge’s answer. It was ground, and has a keen sense of patri- That Senator took the same ap- anything but ‘‘basic.’’ Judge Alito ex- otic duty. He is highly intelligent, un- proach when discussing the just-de- plained that he needed to consider the deniably experienced, and imbued with cided case of Gonzales v. Oregon, which political question doctrine first, then character and personal integrity. He dealt with the Attorney General’s pro- to analyze the scope of the President’s has a low-key, patient, and respectful mulgation of regulations in response to Article II War Powers, the history of personality—the model of what we a state physician-assisted suicide stat- the use of force absent congressional have come to call the ‘‘judicial tem- ute. The Attorney General had said authorization—it’s a very complicated perament.’’ He believes in judicial re- that, despite the Oregon statute, physi- history—and then apply it to the facts straint and has proven it for the past 15 cians could not use Federally regulated before him. The Senator wanted a poli- years. He deserves my vote and I will drugs to kill patients. tician’s answer, a policymaker’s an- proudly give it to him. The case, therefore, did not turn on swer. In other words, he wanted to This is the analysis we have applied the Court’s views on physician-assisted know how that case would turn out, be- in the past, and its application has re- suicide, but, rather, on the interpreta- fore it was briefed and argued. But all sulted in confirmation for most nomi- tion of the underlying statute. The ma- we should be asking, is how he would nees. It was certainly the analysis used jority made this clear in the first para- approach the question. What principles to evaluate President Clinton’s nomi- graph. Justice Kennedy explained: would Sam Alito apply, not what kind nees to the Supreme Court. So it is in The dispute before us is in part a product of results Sam Alito will deliver. this context that I want to discuss of this political and moral debate, but its Abortion, executive power in a time what is evolving as a new test—a ‘‘re- resolution requires an inquiry familiar to of war, congressional power, State sov- sults-oriented’’ test. the courts: interpreting a federal statute to ereign immunity, the 4th amendment,

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00063 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S98 CONGRESSIONAL RECORD — SENATE January 25, 2006 wetlands regulation, the death pen- clearly be ‘‘no.’’ This is a terribly dan- The single most important factor alty—many Senators have constructed gerous road to travel. that went into my decision of whether a confirmation standard that revolves We all know that the Supreme Court to support Judge Alito has to do with completely around predictions about confirmation process has taken on po- the Justices’ role on the Court. The job how cases related to issues such as litical campaign-like elements, with of the judiciary is to apply and inter- these will come out. We cannot allow television advertisements and grass pret the Constitution and the laws of our public policy aspirations to cloud roots activism. That development, plus the land. Unfortunately, not everyone our view of the judicial function. this results-oriented approach to con- sees it that way. That is why judicial If our process evolves into results- firmation, represents the subtle rejec- activism has become so rampant in oriented voting, votes will inevitably tion of the very idea of a non-political, this country. In no way is it the judi- become partisan. Indeed, it appears independent judiciary. What else can ciary’s purview to make laws. That is that it has already become partisan. we conclude when Senators won’t vote clearly the job of legislators. Legisla- The confirmations of Ruth Bader Gins- for a nominee who even they say is tors are to make the laws and judges burg and Stephen Breyer speak vol- qualified and has high integrity, just apply them. Judge Alito understands umes about how this results-oriented because they want to guarantee certain this principle and has demonstrated so approach is, in fact, a problem centered results out of the Court? That’s not throughout his esteemed career. within the democratic caucus. Both of law. That’s politics. It is the antithesis In his testimony before the Senate these nominees had a long history of of the rule of law and constitutional Judiciary Committee he spoke about liberalism. Both were Democrats with government. Do we really just want the limited role of the judiciary. Judge ties to the political left. Ginsburg was policy makers in robes? I remember Alito stated it should always be asking the former general counsel to the when President Clinton’s former White itself whether it has strayed over the ACLU who had advocated taxpayer House Counsel, Lloyd Cutler, testified bounds, whether it is invading the au- funding of abortion, and Breyer had before the Judiciary Committee. His thority of the legislature, for example, been Senator KENNEDY’s chief counsel answer was a resounding ‘‘No.’’ whether it is making policy judgments and an academic promoter of an expan- In conclusion, I remind the Senate of rather than interpreting the law. That sive regulatory state. Yet both re- something Justice O’Connor said last has to be a constant process of reexam- ceived unanimous support from the Ju- September: the rule of law is ‘‘hard to ination of the judges. diciary Committee. Justice Ginsburg create and easier than most people During Judge Alito’s confirmation received 96 votes on the floor, and Jus- imagine to destroy.’’ That warning hearing, Democrats tried to make the tice Breyer received 87 votes. They speaks directly to what we face today. case that judicial precedent is more have served for more than a decade on If a partisan block of Senators con- important than the Constitution itself. the left side of the Supreme Court, ex- tinue down this path of politicization, Most Americans believe the words of actly as Republicans suspected that it cannot be expected to apply to only the Constitution should have real they would when they voted to confirm one party. The ultimate loser will not meaning. A strict constructionist ap- them. But Republicans evaluated their be Republicans or Democrats, but the proach to interpreting the Constitution judicial qualifications favorably, trust- rule of law itself. is necessary for the consistent applica- ed their commitments to approach ‘‘Hard to create, and easier than tion of our laws. How can we as the leg- cases with an open mind, and gave def- most people imagine to destroy.’’ My islative branch do our jobs effectively erence to the President’s choice. After friends, please—take a step back. The when the judicial branch is free to pro- all, he had won the election. man is qualified. He has high integrity. vide an expansive reading of the Con- We haven fallen a long way since Jus- He is fair. He deserves your vote. stitution at any moment? I don’t be- tice Breyer was confirmed in 1994. The The PRESIDING OFFICER. The Sen- lieve we can. Republicans who put aside their policy ator from Nevada is recognized. For this reason, we need judges who goals and supported liberal Democratic Mr. ENSIGN. Mr. President, I rise value the Constitution first. Precedent nominees have been rewarded with un- today in support of the nomination of is a necessary tool to ensure consistent precedented filibusters of qualified Judge Samuel Alito, Jr., to the U.S. application of the laws, but precedent nominees to the lower courts and the Supreme Court. should not be held so high that we pro- adoption of a results-oriented con- One of the greatest honors and re- hibit judges from revisiting bad prece- firmation standard for the Supreme sponsibilities of a Senator is a vote we dent. The history of the Supreme Court Court. cast to confirm judges. Our role is not supports this idea. If bad precedent I say to my Democrat colleagues—is one that I take lightly. It is with deep could not be overturned, Plessy v. Fer- this really the path you want to put us respect for the laws of this Nation and guson would still stand and racial seg- on? You have already dramatically in- for the highest Court in our land that regation would still be legal in this creased the chance of future filibusters. I stand before the Senate today. country. That thought is truly rep- Do we really want Senators to vote As Senators, we are tasked with the rehensible. The Supreme Court, in fact, against any nominee who will not pre- specific duty in the checks and bal- has overturned its own precedent at judge cases and guarantee results? I ances system of our Government. It is least 225 times. That is nearly once per know that the most ideological activ- with our advice and consent that a year. ists on both sides of the spectrum President’s nominee is confirmed or re- I support Judge Alito’s nomination would prefer that path, but do you? jected. This is how it has worked since because his testimony demonstrates Does the Senate? Does the Nation? the Constitution was adopted. Our fore- his understanding of the principle that As I said, for now this is a Democrat fathers, with great brilliance and fore- the Constitution, and not precedent, is problem. But it is naive to think that, sight, wanted to ensure that no one preeminent. someday, Republicans won’t decide person wielded excessive power. How- In addition to his clear and com- that what is good for the goose is good ever, at the same time, it is the Presi- mitted approach to interpreting laws for the gander. And while your ‘‘no’’ dent who selects a nominee. He earns and not being a judicial activist, I votes on Judge Alito will not keep him that power as the elected leader of the think the testimony and support of his from the Supreme Court, I say to my United States. President Bush nomi- colleagues speaks volumes about what Democratic friends—what if President nated Judge Alito. We are here to con- we can expect from Justice Alito. Bush had lost the 2004 election but sider that nomination. Judge Maryanne Trump Barry has there were 55 Republicans in the Sen- I had the opportunity to meet Judge served on the Third Circuit with Judge ate? If Republicans today were apply- Alito and I find he is extremely quali- Alito since President Bill Clinton ap- ing your results-oriented, litmus-test- fied to join the highest Court in this pointed her in 1999. She also worked in based standard to a Democrat Presi- land. His experience, his temperament, the U.S. Attorney’s Office with Judge dent’s nominees, would it be possible to his understanding of the role of the Alito in the late 1970s. About his serv- confirm anybody even vaguely as lib- Court and his respect for the law make ice as U.S. attorney, she stated: eral as Ginsburg or Breyer. If we fol- him an admirable candidate who I be- Samuel Alito set a standard of excellence lowed your path, the answer would lieve will serve this Nation well. that was contagious—his commitment to

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00064 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S99 doing the right thing, never playing fast and On day four of the hearings, January Judge Alito brought to the table was loose with the record, never taking a short- 12, 2006, four sitting and two former not one that says here is what I believe cut, his emphasis on first-rate work, his fun- judges of the U.S. Court of Appeals for and as a result this is what I will do damental decency. the Third Circuit testified on behalf of but, rather, what you would want a Judge Aldisert of the Third Circuit, Judge Sam Alito’s nomination to the judge to do: What do the facts say, appointed by President Johnson, has Supreme Court. They spoke about his what does the law say, what does the worked with Judge Alito for 15 years. independence, judgment, intellect, and Constitution say. He testified about the experience of character. In being asked 700 questions, I think those who have served with Judge I remember listening to Judge Tim- that is something like 500 more than Alito. Because of Judge Alito’s work on othy Lewis tell us that Judge Alito Justice Ginsburg was asked. Senators the bench, he stated: will be the type of Justice who will lis- on the committee who had previously . . . we who are his colleagues are con- ten with an open mind and will not counseled nominees not to answer spe- vinced that he will also be a great justice. have any agenda-driven or result-ori- cific questions on issues that will come The character, the qualifications, ented approach. I think that is what we before them on the Court on this occa- and the commitment of Judge Alito are want in a judge. sion abused the nominee for not doing not in question by anybody in this What is interesting is that Judge so. The American people know what room. His long history of public service Lewis is a Clinton appointee. He stat- this process is supposed to be about. has proven that. He has served our ju- ed: The President nominates and the Sen- dicial system and our Nation with the I am openly and unapologetically pro- ate confirms. The President, who was utmost honor, and we can expect him choice and always have been. elected by all the people, did his job. to continue that legacy from our Su- Judge Lewis went on to state: Now it is time for us to do ours. preme Court. When we approach issues of greatest I urge all of my colleagues in the I am openly—and it’s very well known—a committed human rights and civil rights ac- magnitude, the Senate should be at its Senate to consider their vote and to very best. I like Stephen Covey’s ad- avoid partisanship. Consider Judge tivist and am actively engaged in that proc- ess as my time permits. . . . vice to leaders when he wrote: Alito’s qualifications. Consider his re- I am very, very much involved in a number The Main Thing is to keep the Main Thing spect for the Constitution. Senator of endeavors that one who is familiar with the Main Thing. KYL from Arizona preceded me on the Judge Alito’s background and experience Despite all the distractions and at- floor. He talked about the dangerous may wonder—‘‘Well, why are you here today tempted detours, there is a main thing precedent that would be set if this body saying positive things about his prospects as to be focused on. This main thing is were to depart from the standard of a justice on the Supreme Court?’’ not a particular issue or political agen- judging nominees based on their expe- And the reason is that having worked with da. This main thing should not vary rience in favor of a partisan approach. him, I came to respect what I think are the most important qualities for anyone who based on whether your party is in the Republicans, back in the 1990s, voted puts on a robe, no matter what court they White House. I hope that in my time in for two people they knew would be lib- will serve on, but in particular, the United the Senate, if there is a President of a eral. The basis on which Judge Alito’s States Supreme Court. different party, I will bring the same confirmation is based will likely deter- It has been said that the most impor- approach that I have tried to bring to mine the basis by which all future tant decision in Government is ‘‘who the judges that President Bush has nominees will be judged. decides?’’ With magnificent simplicity, What I think is important to con- nominated. My consistent standard article II, section 2 of the Constitution sider is not how someone will rule but throughout my time in the Senate will lays out the process for placing mem- rather on their judicial approach with be this: Is the nominee qualified by rel- bers on our Highest Court. It says: respect to the words of the Constitu- evant experience, proper judicial tem- tion, at the writing of the Founders, at . . . he [the President] shall nominate, and perament, and ethical standards which by and with the Advice and Consent of the the principles on which America was are beyond reproach? Does he bring a Senate, shall appoint [justices] of the Su- perspective that says a judge is to be a founded. That is the judicial approach I preme Court. . . . want somebody to have on the Highest judge or referee, not to bring his or her For us, elected officials, the process Court in the land. And that is the judi- personal opinions to the table to create of determining who will lead is long, cial approach I believe—no one knows law as he or she sees it but, rather, drawn out, expensive, and sometimes for sure, but I believe—Samuel Alito does what Judge Alito does, looks at very noisy. But for the selection of has and how he will make judgments as the facts, looks at the law, the Con- Justices, the Founders wanted the an Associate Justice of the U.S. Su- stitution. process to reflect the dignity of the of- preme Court. I would submit that a quick search So I urge all my colleagues to sup- fice. for the votes and record of judicial Unfortunately, we have witnessed a port his nomination. Mr. President, I nominations over the last 200 years deterioration of the dignity and solem- yield the floor and suggest the absence would indicate this is the historical nity of that process in the last few of a quorum. standard almost all Senators have The PRESIDING OFFICER. The years. Despite Chairman SPECTER’s taken. The current circumstance of mi- clerk will call the roll. best efforts, the hearing before the Ju- croscopic examination, politicizing, The assistant legislative clerk pro- diciary Committee seemed, at times, to and threats of filibusters is a major ceeded to call the roll. me, at least in some ways, an exercise historical aberration. For the sake of Mr. COLEMAN. Mr. President, I ask in futility. the judiciary and the whole constitu- unanimous consent that the order for I would like to know the breakdown tional system, I hope we find our way the quorum call be rescinded. between the amount of time Senators back to the way things have been for The PRESIDING OFFICER. Without on the committee spent making over the last 200 years plus, rather than objection, it is so ordered. speeches for the witness to hear and the last 5 years. Mr. COLEMAN. Mr. President, I have how much time they spent listening to In my view, Judge Samuel Alito is come to the Senate floor to discuss the him. The ‘‘advice and consent’’ process extremely well qualified to serve on nomination of Judge Samuel Alito. My became ‘‘lobby and confront.’’ the Supreme Court. He has an extraor- purpose is to share with my colleagues The Senate should examine the nomi- dinary legal mind. There is no doubt and the people of Minnesota my deci- nee, not dissect him or her. about it. He has demonstrated in his sion to vote to confirm Judge Alito and I have read he was asked more than years on the bench and in hundreds of the reasons for it. 700 questions. The Presiding Officer cases that he views the judicial role as This is one of the most solemn and should know; he was there. He sat following the Constitution and inter- important events in the life of the Sen- through part of that process. I believe preting the law, not making the law. ate. From Minnesota, I watched and he brought, and others try to bring, a Judge Alito told us in his own words listened to the hearings closely. Judge sense of asking the nominee about the that ‘‘no person in this country, no Alito’s intellect and character are process that he would employ in mak- matter how high or powerful, is above nothing short of remarkable. ing decisions. It was clear that what the law, and no person in this country

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00065 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S100 CONGRESSIONAL RECORD — SENATE January 25, 2006 is beneath the law.’’ He also told us lines. Those on the other side of the Harriet Miers’ nomination when the that ‘‘our Constitution applies in times aisle—the Republican side—are vir- news media announced it—or only of peace and in times of war, and it tually all in support of Judge Alito. shortly before. I think he said he was protects the rights of Americans under Most on the Democratic side oppose called within an hour or so before the all circumstances.’’ him. news announcement. That is much dif- On results-oriented jurisprudence, I have listened to what many of the ferent than the consultation that took Judge Alito stated: Republican Senators who have come to place with Senator HATCH and Presi- Results-oriented jurisprudence is never the floor have said. Almost every Re- dent Clinton, where President Clinton justified because it is not our job to try to publican Senator who has come to the went to the ranking Republican—not produce particular results. We are not pol- floor today has made the argument even the Chair at that moment—and icymakers. We shouldn’t be implementing that we should all vote for Judge Alito asked him for advice and consultation any sort of policy agenda or policy pref- because in 1993, some 13 years ago, Jus- on the next Supreme Court nomina- erences we have. tice Ruth Bader Ginsburg, a Supreme tion. In effect, this was the same standard Court nominee of President Clinton, Judge Alito was nominated not as a that Judge Roberts applied. I recall he was confirmed overwhelmingly by the product of bipartisan consultation with was asked a question whether he was Senate. That appears to be talking the Senate but, rather, as a payoff—or ruling on behalf of the little guy. And point No. 1 that the White House gen- at least a satisfaction to the radical the comment was, if the Constitution erated not only in conversation today right who had turned their back on says the little guy deserves to win, he on the floor, but also at the hearing Harriet Miers’ nomination. will. And if it says that he doesn’t de- concluded recently in the Senate Judi- There is another crucial difference serve to win, then he won’t. That is ciary Committee. There are some fun- between Judge Alito and Judge Gins- what judges should do. That is the way damental flaws in their reasoning and I burg. Despite some Republican Sen- they should operate. will point out three: ators’ efforts to rewrite history, Judge Advice and consent was never in- First, as I mentioned this morning, Ginsburg was viewed at the time of her tended as a rehash of the previous Justice Sandra Day O’Connor, whose nomination as a moderate and centrist Presidential election. It was never in- vacancy is being filled, has been the judge based on her dozen years of serv- tended as a means for the Senate to fifth and decisive vote on many issues ice on the Federal bench. In a National impose its policy agenda on a future central to our democracy. The Justice Public Radio news story dated June 18, court. I worry that we are walking who takes her place is truly in the po- 1993, a reporter named Nina Totenberg down a dangerous path when Senators sition to tip the scales of justice in said as follows: start looking at judges and in effect re- America. In the last 10 years, 193 cases Why did the Republicans feel so com- quiring them to say, yes, I will rule a have been decided in the Supreme fortable with Judge Ginsburg? The answer is certain way or otherwise you will not Court by the closest of votes, 5 to 4; that her judicial record shows her to be the get my vote. and of the 193 cases, Justice Sandra most conservative Carter-appointed judge on Advice and consent was never in- Day O’Connor has been the deciding the U.S. Court of Appeals here in the Dis- tended as a means to grandstand or vote in 148; 77 percent of these closely trict of Columbia. placate interest groups. I will proudly divided decisions were decided by Jus- She’s considered a centrist, a swing vote to support Judge Alito’s nomina- tice Sandra Day O’Connor. Now, the vote. And in fact, a statistical analysis tion. His career, his writings, and his Justice whom Ruth Bader Ginsburg re- done in 1987 of that Court’s voting pat- class during this less-than-ideal con- placed in 1993, Byron White, didn’t play tern shows Judge Ginsburg voting sub- firmation process are proof that he will the same pivotal role Justice O’Connor stantially more often with the court’s be an outstanding member of the high- has played as the decisive vote on so conservative Republican bloc of judges, est Court. The President has done his many important issues. led by then-Judge Robert Bork, than job admirably. He has nominated an Second, President Clinton selected with the liberal Democrat judges. outstanding judge. The Senate has ex- Justice Ginsburg after a real, authen- Judge Alito, by contrast, has never amined his qualifications. Now it is tic consultation with Republicans in been called a centrist judge. At least time for us to do our job and confirm the Senate. This morning, I saw Sen- those who looked at his record have Samuel Alito as an Associate Justice ator HATCH early in the day and I said not called him that. He is not a judge of the U.S. Supreme Court. his book sales must be up because ev- who votes more often with his Demo- I yield the floor and suggest the ab- erybody is quoting him. It is a book he cratic colleagues than his Republican sence of a quorum. wrote entitled ‘‘Square Peg: Confes- colleagues. Far from it. Judge Alito is The PRESIDING OFFICER. The sions of a Citizen Senator.’’ In that a staunch conservative and the most clerk will call the roll. book, Senator Orrin Hatch of Utah de- frequent dissenter on his court. When The assistant legislative clerk pro- scribed how in 1993, as the top Repub- he dissents, it is almost always in a ceeded to call the roll. lican on the Judiciary Committee, he rightward and more conservative direc- Mr. DURBIN. Mr. President, I ask received a telephone call from Presi- tion. unanimous consent that the order for dent Clinton to discuss possible Su- I spoke earlier about Judge Alito’s the quorum call be rescinded. preme Court nominees. Senator HATCH track record on civil rights. I talked The PRESIDING OFFICER. Without recounted in his book—and still stands about some of the cases in which he objection, it is so ordered. by it—that he warned President Clin- showed a particular insensitivity to Mr. DURBIN. Mr. President, pending ton away from a nominee whose con- those who came before his court with- before the U.S. Senate is the nomina- firmation Senator HATCH believed out the trappings of power. In fact, tion of Judge Sam Alito from the Third ‘‘would not be easy,’’ in his words. He Judge Alito, in many of those cases, Circuit to the U.S. Supreme Court. As wrote in his book that he suggested the was the sole dissenting judge. Because I mentioned earlier in the day, it is a names of Ruth Bader Ginsburg, whom Justice O’Connor was the fifth and de- historic moment seldom seen on the President Clinton had never heard of, ciding vote on so many cases involving floor of the Senate when we discuss the according to Senator HATCH, and Ste- civil rights and racial justice, Judge possible elevation of an individual to a phen Breyer. Senator HATCH wrote that Alito will tip the scales of justice on lifetime appointment to the highest he assured President Clinton that Gins- those issues if he is confirmed. Court in the land. burg and Breyer ‘‘would be confirmed At this point, I ask unanimous con- The Supreme Court is the last refuge easily.’’ sent to have printed in the RECORD a for America’s rights and freedoms. It is What a contrast to the situation we letter of January 6, 2006, from the an important institution for our values face today. President Bush sends the Leadership Conference on Civil Rights and our future. That is why during the names of nominees to the Senate with- that has been submitted in opposition course of the day many Members of the out previous consultation. In fact, I to the nomination of Judge Alito, Senate have come to the floor to ex- may be mistaken on this particular signed by Dr. Dorothy Height, chair- press their feelings about Judge Alito. nominee, Judge Alito, but I do recall person, and Wade Henderson, executive It is largely broken down on partisan Senator SPECTER saying he learned of director.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00066 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S101 There being no objection, the mate- tive reapportionment. Because those rulings JUDGE ALITO’S NARROW READING OF ANTI-DIS- rial was ordered to be printed in the first articulated the fundamental civil rights CRIMINATION AND OTHER WORKER PROTECTION RECORD, as follows: principle of ‘‘one person, one vote,’’ and LAWS LEADERSHIP CONFERENCE paved the way for major strides in the effort Judge Alito’s record also raises concerns ON CIVIL RIGHTS, to secure equal voting rights for all Ameri- about whether he would be a strong enforcer Washington, DC, January 6, 2006. cans, his stated opposition to them is ex- of our nation’s civil rights and labor laws. Hon. ARLEN SPECTER, Chairman, tremely troubling. It is vital to understand His decisions thus far in such cases show a Hon. PATRICK J. LEAHY, Ranking Member, the context in which these cases were de- pattern of narrow interpretations of the Committee on the Judiciary, U.S. Senate, Wash- cided. laws, placing greater burdens on civil rights ington, DC. Prior to the 1960s, as urban areas through- plaintiffs to prove discrimination and mak- DEAR CHAIRMAN SPECTER AND RANKING out the country experienced rapid population ing it harder for the government to protect MEMBER LEAHY: On behalf of the Leadership growth, many state and federal legislative workers. Conference on Civil Rights (LCCR), the na- districts were not redrawn, often leaving In a number of cases involving race, gen- tion’s oldest, largest, and most diverse civil rural voters with far more representation per der, disability, and age discrimination, and human rights coalition, we write to ex- capita—and thus far more political power— Judge Alito was clearly to the right of his press our opposition to the confirmation of than urban residents. In Florida, for exam- colleagues on the Third Circuit. In Bray v. Judge Samuel A. Alito, Jr. as Associate Jus- ple, just 12 percent of the population could Mariott Hotels, for example, the Third Cir- tice of the Supreme Court of the United elect a majority of the state senate. While cuit ruled that an African-American plaintiff States. The Supreme Court’s jurisprudence unequal districts affected all voters, their who had been denied a promotion had shown over the past 50 years has often served to impact was especially harsh in the South, that racial discrimination might have been a protect the fundamental constitutional where, along with discriminatory require- factor, and that she was therefore entitled to rights of all Americans. Judge Alito’s deci- ments like poll taxes and literacy tests, mal- take her case to trial. But Judge Alito dis- sions, however, often stand in direct contrast apportionment virtually guaranteed the ex- sented, writing an opinion that prompted the to that jurisprudence and embrace a much clusion of racial minorities from the demo- majority to charge that ‘‘Title VII would be more limited and narrow view of constitu- cratic process. Until 1962, the federal courts eviscerated if our analysis were to halt tional rights and civil rights guarantees. A generally refused to intervene, dismissing where the dissent suggests.’’ In Sheridan v. careful examination of Judge Alito’s record such matters as ‘‘political questions.’’ E.I DuPont de Nemours and Co., a gender reveals a history of troubling decisions in The Supreme Court’s ruling in Baker v. discrimination plaintiff sued after being de- the areas of civil rights, civil liberties, and Carr broke new ground when the Court de- nied a promotion. A jury ruled in her favor, fundamental freedoms, decisions that under- clared, for the first time, that the federal but the trial judge threw out the verdict. mine the power of the Constitution and of courts had a role to play in making sure that The Third Circuit found that she had pre- Congress to, protect the civil and human all Americans have a constitutional right to sented enough evidence to persuade the jury that discrimination was a factor, but Judge rights of all Americans. LCCR believes that equal representation. In Wesberry v. Sand- Alito was the lone dissenter in the en banc Judge Alito’s record does not demonstrate ers, the Court examined Congressional dis- decision. Judge Alito acknowledged that ad- an adequate commitment to protecting fun- tricts in the State of Georgia, which had ditional evidence of discrimination, beyond damental rights and, therefore, urges the drawn its legislative map so that 823,680 peo- proof that an employer’s explanation for an Senate to reject his nomination. ple in the Atlanta are were all represented adverse decision was pretextual, should not The Supreme Court is the final arbiter of by one Congressman, while a rural Congress- usually be required for a plaintiff to get to a our laws, and its rulings can drastically im- man represented only 272,154 people. The jury, but he maintained that summary judg- pact the lives, liberties, and rights of all Court held that these disparities violated the ment might still be appropriate in some Americans. As such, LCCR believes that no Equal Protection Clause of the 14th Amend- cases. The result Judge Alito would have individual should be confirmed to the Su- ment, and ordered that the districts be reached in the Sheridan case, however—re- preme Court unless he or she has clearly redrawn more evenly. In Reynolds v. Sims, versing a jury finding of sex discrimination shown a strong commitment to the protec- the Court applied the principle of ‘‘one per- that every other judge on the Third Circuit tion of civil rights and liberties, human son, one vote’’ to state legislatures, which, would have upheld—undermines the neutral rights, privacy, and religious freedom. The in many cases, had even more drastic mal- standard he articulated. To reach this result, evidence reviewed to date shows that Judge apportionment than Congressional districts. Judge Alito not only gave the employer the Alito’s record in these areas is highly trou- For example, the Reynolds case itself chal- benefit of the doubt but failed to consider bling. His overall record reveals a jurist lenged Alabama’s legislative districts, in some of the most important evidence whose views are clearly to the right of where which one county with more than 600,000 peo- brought by Sheridan. Finally, in Nathanson most Americans stand on a number of issues, ple had only one senator, while another v. Medical College of Pennsylvania, a pro- including the reach of civil rights laws, the county with only 15,417 people also had its spective medical student filed suit under the constitutional safeguards afforded those own senator. Rehabilitation Act of 1973, claiming that the within our criminal justice system, and the In articulating the concept of ‘‘one person, school failed to provide accommodations for power of Congress to protect Americans in one vote,’’ the so-called ‘‘Reapportionment a back injury. The trial court granted sum- the workplace and elsewhere. Revolution’’ cases equalized political power mary judgment in favor of the school, but a In addition, LCCR is very troubled by the between urban and rural voters, and ensured Third Circuit panel reversed on the Rehabili- statements Judge Alito made in his 1985 ap- that every citizen would have an equal voice tation Act claim because there were dif- plication to be the Reagan administration’s in the legislative process. Along with the ferent factual assertions that necessitated a Deputy Assistant Attorney General in the passage of the Voting Rights Act of 1965 and jury trial. Judge Alito dissented, prompting Office of Legal Counsel. In particular, Judge its subsequent amendments, the decisions his colleagues to write that under his stand- Alito cited his disagreement with key rul- also paved the way to far greater representa- ards, ‘‘few if any Rehabilitation Act cases ings by the Supreme Court on legislative re- tion of racial and ethnic minorities, at both would survive summary judgment. apportionment, criminal justice and reli- the state and federal levels of government. Judge Alito’s record on anti-discrimina- gious liberties, and added that he was ‘‘par- They also helped open the door for legal tion cases becomes more troubling when con- ticularly proud’’ of his work to restrict af- challenges to the ‘‘at-large’’ and ‘‘multi- sidered in light of his record prior to serving firmative action and limit remedies in racial member’’ districts that many Southern on the Third Circuit. As Assistant to the So- discrimination cases. Although he now states established in an effort to circumvent licitor General during the Reagan adminis- claims that these were just mere words on an the Baker rulings and continue excluding Af- tration, Judge Alito co-authored several ami- application, his record as a jurist reveals rican-American voters from the political cus curiae briefs that sought to eliminate af- something different. The ideological views process. firmative action policies that were put in taken in the application and during his time The Warren Court decisions that estab- place to remedy past discrimination, dis- in the Reagan administration are exempli- lished the constitutional principle of ‘‘one crimination which, in one case, persisted in fied throughout his judicial decision making, person, one vote’’ were a catalyst for tre- contravention of at least three court orders where he routinely favors a reading of statu- mendous progress in our nation’s efforts to over an eight-year period. In his 1985 applica- tory and constitutional law that limits the secure equal voting rights for all Americans, tion for a promotion within the Justice De- rights of individuals and the power of Con- and quickly became so accepted as a matter partment, Judge Alito later gress to protect those individuals. The fol- of constitutional law that they could fairly mischaracterized these cases as involving lowing is a summary of the reasons for be described as ‘‘superprecedent.’’ Yet two nothing more than challenges to ‘‘racial and LCCR’s opposition: decades later, long after most of the nation ethnic quotas.’’ Judge Alito’s involvement in JUDGE ALITO’S ‘‘DISAGREEMENT’’ WITH SU- had come to embrace this progress, Judge the Reagan Justice Department’s zealous PREME COURT RULINGS ON REAPPORTIONMENT Alito still boasted of his opposition to it. campaign to undermine affirmative action In an essay attached to a 1985 application The fact that he would use his opposition as remedies suggests that he adheres to an ide- for a position within the Department of Jus- a ‘‘selling tactic’’ for a job in 1985 is dis- ology that goes beyond mere conservatism tice, Judge Alito wrote that he had been mo- concerting, and raises suspicions about his on civil rights matters. tivated by his opposition to, among other overall legal philosophy that deserve exten- In cases involving other worker protec- things, the Warren Court’s rulings on legisla- sive scrutiny. tions that deal with such matters as salary,

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00067 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S102 CONGRESSIONAL RECORD — SENATE January 25, 2006 pensions and job safety, Judge Alito has also ship, a woman and her children were did not find a constitutional violation in the demonstrated a clear and unmistakable searched as they were entering premises that prosecution’s apparent use of peremptory tendency to rule narrowly and against work- were the subject of a search wacrant. The challenges to exclude black jurors from a ing people. Given a choice between reading a search warrant specified a location but there death penalty case involving an African- statute broadly, consistent with Congress’ were no names included on the warrant, American defendant. His dissent in the case intent to provide workers with basic protec- which led the majority to conclude that the illustrated a disregard for ihe impact of ra- tions, or reading a statute in the narrowest warrant was deficient under the require- cially motivated peremptory jury strikes on way possible, he again shows a disturbing ments of the Fourth Amendment. Judge African-American defendants. The majority tendency to come down against workers. In Alito dissented, however, arguing that the had relied, in part, on statistical data to con- Reich v. Gateway Press, for example, Judge lack of particularity in the warrant allowed clude that black jurors had been excluded, Alito dissented from a ruling in which the the officers more leeway to search anyone on but Judge Alito took issue with the use of Third Circuit found that employees of a the premises. statistics, questioning the exclusion of black group of related community newspapers were Judge Alito’s overly deferential attitude jurors as a statistical oddity and comparing protected by the overtime rules of the Fair toward law enforcement at the expense of it to the fact that five of the last six U.S. Labor Standards Act. The majority reasoned privacy rights was also evident before his ap- Presidents had been left-handed. His com- that while the law may not have covered pointment to the Third Circuit. In a 1984 ments drew a sharp rebuke from the major- each individual newspaper, which were small memorandum, Judge Alito—then an attor- ity, who said that ‘‘[t]o suggest any com- in size and circulation, the papers and all ney with the Justice Department—opined parability to the striking of jurors based on employment decisions were managed by one that the Attorney General and other govern- their race is to minimize the history of dis- company and thus amounted to an ‘‘enter- ment officials should have absolute immu- crimination against prospective black jurors prise’’ that was subject to the overtime law. nity from civil liability for wiretapping the and black defendants. Judge Alito dissented, however, and would phones of Americans without a warrant. He JUDGE ALITO’S TROUBLING RECORD ON have denied this coverage, claiming that nei- urged the administration not to pursue such IMMIGRATION LAW ther the statute nor the legislative history an argument in a pending Supreme Court Judge Alito’s record in appeals of asylum could support the majority’s conclusion. In case, but only on purely strategic grounds. and deportation orders reveals an abnor- Belcufine v. Aloe, on the other hand, Judge The Supreme Court, in Mitchell v. Forsyth, mally strong tendency to let adverse Board Alito took a more expansive reading of the went on to rule that absolute immunity did of Immigration Appeals (BIA) and lower law, but in this case it was in order to ben- not apply in such situations, rejecting the court rulings stand. For example, an anal- efit corporate officers at the expense of broad, troubling view expressed in Judge ysis by The Washington Post found that Alito’s memorandum. workers. Belcufine involved a state law that Judge Alito has sided with immigrants in Judge Alito’s record is equally troubling in held corporate officers personally liable for only one out of every eight cases he has han- other areas of criminal justice, and shows unpaid wages and benefits. Judge Alito dled, which, according to the Post, sets him the same excessive deference to law enforce- ruled, in a split decision, that the law could apart even from most Republican-appointed ment that can open the door to abuses. In no longer be applicable, as a matter of pol- judges. Judge Alito’s record is more problem- another 1984 memorandum, Judge Alito ar- icy, once a corporation has filed a bank- atic in light of the recently growing criti- gued in defense of a state law that had au- ruptcy petition. The dissenting opinion cism, by many other federal judges from thorized Tennessee police to use deadly force pointed out that nothing in the statute in both parties, of asylum rulings by the BIA against any fleeing felon suspect whom po- question ‘‘even remotely can be read to ex- and administrative immigration judges. lice have probable cause to believe had com- cuse the agents and officers’’ from liability In asylum cases, Judge Alito has a strong mitted a violent crime or was armed or dan- once a company files for bankruptcy. tendency to rule against individuals who are gerous. In the case of Tennessee v. Garner, seeking protection in the United States, JUDGE ALITO’S WILLINGNESS TO UNDERCUT FUN- that law was invoked after police shot and even where evidence shows that they have DAMENTAL PRIVACY AND DUE PROCESS ′ ′′ killed an unarmed, 15-year-old, 5 4 burglary been or would have been persecuted in their RIGHTS suspect while he was climbing a fence. While own countries. In Chang v. INS, Judge Alito In cases involving criminal justice matters Judge Alito did not recommend filing an dissented from the court’s grant of asylum such as the Fourth Amendment, habeas cor- amicus curiae brief in support of the police for a Chinese engineer who claimed he would pus, and the right to effective assistance of in the case, he still found the shooting to be face persecution if returned to his own coun- counsel, Judge Alito has shown an excessive constitutionally defensible. When given a try. Judge Alito found no reason to reverse tendency to defer to police and prosecutors. choice between killing a possibly nonviolent the INS denial of asylum despite the fact This deference frequently comes at the ex- suspect and allowing a possibly violent sus- that Chang had presented evidence that his pense of the constitutional rights and civil pect to escape, Judge Alito argued that wife and son already faced persecution and liberties of individual Americans, and it ‘‘[r]easonable people might choose dif- he was threatened with jail if he returned to raises concerns about whether Judge Alito ferently in this situation.’’ The Supreme China. Similarly, in Dia v. Ashcroft, Judge would help enable governmental abuses of Court disagreed wiih Alito’s farfetched anal- Alito dissented from a majority opinion power. ysis, finding ihe statute unconstitutional by granting asylum to an immigrant from the In Doe v. Groody, Judge Alito argued in a 6–3 margin. Republic of Guinea whose house had been dissent that police officers who conducted Judge Alito’s record also reveals a dis- burnt down and whose wife had been raped in strip searches without a warrant could still tressing tendency to deny habeas corpus retaliation for his opposition to the govern- be entitled to qualified immunity. The ma- claims of those in the criminal justice sys- ment. The majority noted that the immigra- jority concluded, in a decision authored by tem. In Rompilla v. Horn, Judge Alito held tion judge seemed to be searching for ways Judge Chertoff, that strip searches of the that in ihe sentencing phase of a capital to deny asylum and find fault with the credi- suspect’s wife and ten-year-old daughter murder case, the failure of a defense attor- bility of Dia. Judge Alito’s dissent pushed went well beyond the police’s warrant to ney to investigate and present mitigating for a higher standard. The majority criti- search the home of a suspected drug dealer, evidence, including ihe defendant’s trau- cized Judge Alito’s dissent, noting that his and that the officers were therefore not enti- matic childhood, alcoholism, mental retar- proposed standard would ‘‘gut the statutory tled to claim qualified immunity as a de- dation, cognitive impairment and organic standard’’ and ‘‘ignore our precedent.’’ fense to a subsequent lawsuit. As Judge brain damage, did not amount to ineffective Judge Alito’s excessive tendency to defer Chertoff noted, holding otherwise would assistance of counsel in violation of the to the BIA is also evident from his record in ‘‘transform the judicial officer into little Sixth Amendment. His ruling was decried as deportation cases. In Lee v. Ashcroft, Judge more than the cliche ‘rubber stamp.’ ’’ Judge ‘‘inexplicable’’ by the dissent and was over- Alita dissented when the court ruled that a Alito, in criticizing the majority for what he turned by the Supreme Court, which noted false tax return is not an ‘‘aggravated fel- called a ‘‘technical and legalistic’’ ruling in that some of the mitigating evidence was ony,’’ an immigration law term that triggers favor of the plaintiffs, would have granted publicly available in the very courthouse in mandatory deportation and bars most forms authority to the police to decide who could which the defendant was tried. Justice of humanitarian waivers. The court reasoned be searched and therefore, would have given O’Connor concurred in reversing Judge that Congress only intended for tax evasion the officers immunity for invading the pri- Alito’s ruling, describing the defense attor- to trigger mandatory deportation, but Judge vacy rights of the wife and daughter. In ney’s performance as ‘‘unreasonable.’’ In an- Alito disagreed and pushed for a more expan- United States v. Lee, Judge Alito upheld the other case, Smith v. Horn, Judge Alito’s dis- sive reading of the law. The majority noted warrantless video surveillance by the FBI of sent would have denied ihe habeas claims of that ambiguity in the law should be resolved a suspect’s hotel suite. He justified his ruling a death row inmate. Judge Alito concluded in favor of the immigrant and that Judge on the ground that the FBI only turned on that a jury instruction regarding the defend- Alita’s interpretation was grounded in ‘‘spec- the surveillance equipment when an inform- ant’s guilt, which the majority found the ulation.’’ In Sandoval v. Reno, Judge Alito’s ant was present in the suite and could ‘‘con- jury could have reasonable misunderstood, dissent would have construed the sent’’ to the surveillance, but this ruling dis- did not amount to a constitutional violation. Antiterrorism and Effective Death Penalty regarded the fact that the equipment was ca- Finally, the case of Riley v. Taylor shows Act of 1996 to strip the federal courts of their pable of being used at any time and thus en- Judge Alito’s reluctance to question prosecu- ability to hear habeas corpus claims from abled the FBI to invade the suspect’s privacy tors even where racism is alleged in the jury aliens in custody challenging deportation or- at any time. And in Baker v. Monroe Town- selection process. In that case, Judge Alito ders. The Supreme Court ultimately rejected

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00068 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S103 Judge Alita’s reading of the law, in INS v. rent Supreme Court in undercutting Con- sented a distorted, narrow and hostile view St. Cyr, because such an interpretation gress’ ability to protect Americans. of the university that cannot help but have would raise serious constitutional questions. In United States v. Rybar, the Third Cir- misinformed and even alarmed many alum- Also troubling is a 1986 letter Judge Alito cuit upheld the conviction of a firearms deal- ni.’’ It is unclear when Judge Alito joined wrote, in his capacity as Deputy Assistant er for the sale of outlawed machine guns, the group or what role he played in its ac- Attorney General, to former FBI Director joining six other circuits in finding the fed- tivities. But his membership in the organiza- William Webster in which he suggested, inter eral law banning the transfer or possession tion is troubling, given the group’s out- alia, that ‘‘illegal aliens have no claim to of machine guns to be a valid exercise of spoken hostility towards the inclusion of nondiscrimination with respect to nonfunda- Congressional authority under its power to women and minorities at Princeton Univer- mental rights,’’ and that the Constitution regulate interstate commerce. But Judge sity, and it raises serious questions about ‘‘grants only fundamental rights to illegal Alito dissented, arguing that the Supreme the level of his commitment to gender and aliens within the United States.’’ Judge Court’s recent decision in United States v. racial equality. Alito uses a strained reading of the 1976 Su- Lopez, which invalidated Congress’ gun-free Also troubling is Judge Alito’s current ef- preme Court ruling in Mathews v. Diaz to school zone ban, made clear that Congress fort, following his nomination to the Su- support this assertion, but oddly, he makes did not have such power. The majority dis- preme Court, to now deny he ever had any no mention of the 1982 ruling in Plyler v. tinguished Lopez because it dealt with a affiliation with the group. In a questionnaire Doe, which squarely ruled that a state could small geographic area—school zones—where- he recently submitted to the Senate Com- not discriminate against undocumented chil- as the law at issue in Rybar applied nation- mittee on the Judiciary, Judge Alito stated dren in public education, even though edu- wide. Judge Alito would have taken Lopez a that ‘‘[a] document I recently reviewed re- cation is not considered a fundamental con- step beyond to place further restrictions on flects that I was a member of the group [Con- stitutional right. As such, Judge Alito’s let- Congress’ power to use its Commerce Clause cerned Alumni of Princeton] in the 1980s. ter raises questions about whether he would authority to protect Americans from ma- Apart from that document, I have no recol- be willing to adequately protect undocu- chine gun violence. Judge Alito’s extraor- lection of being a member, of attending mented immigrants from unconstitutional dinarily narrow perspective of Congressional meetings, or otherwise participating in the forms of discrimination. power expressed in his Rybar dissent raises activities of the group.’’ This supposed lack of any recollection of being a member of JUDGE ALITO’S RESTRICTIVE VIEW OF THE serious concerns about whether he will up- CAP seems difficult, at best, to reconcile ESTABLISHMENT CLAUSE hold major and historically effective pieces of civil rights infrastructure such as the ban with the statement he made in his 1985 job Judge Alito’s record shows that he takes application essay—a statement in which he an overly narrow view of the First Amend- on discrimination in places of employment or public accommodation in the Civil Rights not only cited his membership in CAP, but ment’s Establishment Clause, a view that deliberately used this claim of membership sets him apart from Justice O’Connor and Act of 1964, and whether he will hold a re- strictive view of Congress’ power to move in an effort to bolster his conservative cre- the majority of her colleagues to serve on dentials. the Supreme Court. His record—along with the country forward with additional civil CONCLUSION his acknowledged disagreement with the Su- rights laws such as hate crimes and non-dis- preme Court’s most noteworthy rulings in crimination legislation. The stakes could not be higher. The Su- this area—raises concerns that he would not In Chittister v. Department of Community preme Court is closely divided on cases in- do enough to protect the religious liberties and Economic Development, Judge Alito’s volving many of our most basic rights and of an increasingly diverse America. majority opinion would have denied a state freedoms. Judge Alito has been nominated to For example, in ACLU of New Jersey v. employee the benefits of the Family and fill the seat of retiring Justice Sandra Day Black Horse Pike Regional Board of Edu- Medical Leave Act of 1993 (‘‘FMLA’’). In this O’Connor, who was the crucial deciding vote cation, Judge Alito voted—against an en case, a state employee had sued after being in so many of those cases. The American banc majority of his colleagues on the Third fired for taking medical leave that had been people want and deserve to know that any Circuit—to uphold a public school policy approved pursuant to FMLA. A jury ruled in new Supreme Court justice will be com- that allowed high school seniors to vote on Chittister’s favor, but the trial court re- mitted to protecting individual rights, and whether to include prayer during a gradua- versed the verdict on the ground that the will put our freedoms ahead of any political tion ceremony. By allowing a popular major- state was immune from suit under the 11th agenda. Unfortunately, Judge Alito’s record ity of public school students to waive the Amendment. On appeal, Judge Alito affirmed not only fails to show such a commitment, rights of a minority, Judge Alito’s view—had the ruling, claiming that Congress had not but also raises serious doubts. In addition, we also have doubts about it not also been subsequently rejected by the abrogated state sovereign immunity. The whether Judge Alito will, at his confirma- Supreme Court in a later case—would have Supreme Court later reached an opposite tion hearings, address the above concerns in essentially defeated the purpose of the Es- conclusion from Judge Alito’s holding in its a fully open and candid manner. For in- tablishment Clause. 2003 decision in Nevada Department of stance, Judge Alito has given numerous Judge Alito’s ruling in ACLU of New Jer- Human Resources v. Hibbs. The Court held shifting and conflicting reasons for why he sey v. Schundler (Schundler II) is equally that state employees could in fact sue their did not, as he promised to Senators before troubling. In Schundler, the municipality of employers under the FMLA, a decision that being confirmed to the Third Circuit, recuse Jersey City, New Jersey had placed a cre`che has subsequently been read by some courts himself from cases involving the Vanguard and menorah outside of City Hall. After a to validate the constitutionality of the en- companies, in which he had financial hold- district court ruled that the display violated tire law. ings. Furthermore, Judge Alito has also re- the Establishment Clause, the city added ad- JUDGE ALITO’S MEMBERSHIP IN ‘‘CONCERNED cently tried to dismiss a number of troubling ditional figures to the following year’s dis- ALUMNI OF PRINCETON’’ statements in his 1985 job application, such play, including those of Santa Claus, Frosty In the same job application essay described as his disagreement with the Warren Court’s the Snowman, a red sled, and Kwanzaa sym- above, Judge Alito also stated that he was ‘‘a reapportionment cases, by suggesting that bols. The district court eventually found member of the Concerned Alumni of Prince- his statements should not be taken seriously that this modified display was also unconsti- ton University. a conservative alumni because he was simply applying for a job. Fi- tutional. Judge Alito reversed this decision, group’’ (‘‘CAP’’). Throughout its existence, nally, as discussed above, Judge Alito has however, and upheld the modified display. In CAP was notorious for its outspoken, inflam- also attempted to deny any affiliation with doing so, he minimized the fact that the dis- matory rhetoric opposing Princeton’s deci- the radical group Concerned Alumni of play had only been modified in response to sion to enroll female students. Indeed, CAP Princeton, even though he himself proudly litigation and that the city had been at- reportedly advocated limiting the percent- claimed to be a member in 1985. These inci- tempting to promote religion through its age of women admitted to the school. CAP dents raise doubts about whether Judge holiday displays for decades—even though also derided Princeton’s efforts to increase Alito’s responses to tough questions about the Supreme Court considers such history to the number of minority students; the group his record and his legal philosophy can be be highly relevant when determining wheth- argued that children of alumni were more de- completely believed when his confirmation er a practice or policy violates the Establish- serving of admission. In the group’s maga- hearings begin next week. ment Clause. zine, Prospect, one of the organization’s For the above reasons, we must oppose his JUDGE ALITO’S EFFORTS TO LIMIT CONGRES- founders fondly recalled that Princeton had confirmation as Associate Justice. We appre- SIONAL AUTHORITY IN FAVOR OF ‘‘STATES’ once been ‘‘a body of men, relatively homog- ciate your consideration of our views. If you RIGHTS’’ enous in interests and backgrounds,’’ but have any questions, please feel free to con- Judge Alito’s record demonstrates a trou- that he now worried about the future of the tact LCCR Deputy Director Nancy Zirkin at bling tendency to favor ‘‘states’ rights’’ over University ‘‘with an undergraduate student (202) 263–2880 or LCCR Counsel Rob Randhava the rights of ordinary Americans. During his body of approximately 40% women and mi- at (202) 466–6058. We look forward to working tenure on the Third Circuit, he has engaged norities, such as the Administration has pro- wi1h you. in an excessively narrow reading of the Com- posed.’’ In 1975. an alumni panel reviewed ad- Sincerely, merce Clause and an excessively broad read- mission issues and condemned CAP’s charac- DR. DOROTHY I. HEIGHT, ing of state sovereign immunity under the terization of Princeton’s policies. The panel, Chairperson. 11th Amendment. In fact, his decisions show which included current Senate Majority WADE HENDERSON, that he would go even further than the cur- leader Bill Frist, determined that CAP ‘‘pre- Executive Director.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00069 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S104 CONGRESSIONAL RECORD — SENATE January 25, 2006 Mr. DURBIN. Mr. President, there is Supreme Court built on this concept of my mother made it very clear to me another aspect of Judge Alito’s record a right of privacy and said that for a she didn’t want any of that life sup- that is equally troubling, and that is woman making the most important port, extraordinary effort made. I was his failure to show that he will protect and personal decision of her life, in determined to honor her wishes. She the average American from the over- terms of the continuing of a pregnancy, passed away very quickly with a heart reaching hand of government. she had a protected status in certain attack, and we never had to face that I question whether he is dedicated to stages of the pregnancy. That was a de- decision, but we knew what she want- protecting the privacy rights of indi- cision which was handed down over 30 ed. Her sons said they would stand by viduals from government officials in years ago—33, as a matter of fact. her wishes. Most people feel the same many critical areas of our lives. For So we asked Judge Alito if he accept- way. Do you know why, Mr. President? example, I share the concern of many ed that Griswold v. Connecticut, which Because it is an extremely private, per- of my colleagues about Judge Alito’s established the right to privacy, was sonal, and family issue. But in the case decision to allow a police officer to settled law in America, and did he also of Terri Schiavo, there were those in conduct a strip search of an innocent accept that Roe v. Wade, which fol- the U.S. Congress, particularly in the 10-year-old girl. The police officer, who lowed, was settled law? He repeatedly House of Representatives, who wanted did not have a valid search warrant in refused to provide us with that assur- the Federal Government to step in at the opinion of a majority of the judges ance about this landmark decision. that moment. on Judge Alito’s court, took the 10- What a contrast to John Roberts, So when we talk about diminishing year-old girl and her mother into a who, just a few months before when he the right of privacy in America, it goes bathroom, ordered them to empty their was nominated for the Chief Justice far beyond the contentious issue of pockets, and then ordered the young position on the Supreme Court and was abortion. It goes to issues involving the last wishes of a person who is girl and the mother to lift their shirts asked the same question, said that he dying. It goes to issues involving pro- and drop their pants—a 10-year-old believed Roe v. Wade was settled prece- tecting our privacy and our records, girl. A majority of the judges on Judge dent in America. That is a defining dif- our computers, our medical records, Alito’s court said that went too far; the ference between these two nominees our financial records, and our credit search warrant did not authorize it. and an important one. history. The right of privacy has be- Judge Alito saw it differently. He was If Judge Alito is confirmed, there are come a large part of American life, and the only judge on the court to say that very serious questions about what will happen with the right of privacy in I am concerned when Judge Alito has the Constitution permitted this search. drawn distinctions in saying there are The majority opinion in this case, in- America, not just for the women who some elements of this right of privacy cidentally, was written by Michael could be affected by these decisions but that he still is not certain are settled Chertoff. If the name is familiar, it is for everyone. It wasn’t that long ago, a little over law in America. because then-Judge Chertoff, a con- Another fear I have about Judge a year ago, that the Congress was em- servative Republican, today is in the Alito is that he will not be respectful broiled in a controversy over some- President’s Cabinet as the head of our of the time-honored system of checks thing that many families face every Department of Homeland Security. and balances in this country when it day in America. You will remember the Judge Chertoff, writing the majority comes to Presidential power. If con- Terri Schiavo case, a sad situation opinion, said that what was done was firmed, Judge Alito will have to decide wrong, and Judge Alito’s decision was where some chemical imbalance led to what limits, if any, the Constitution wrong. Terri Schiavo going into a coma. Her places on the President’s authority In the context of reproductive free- life was sustained by extraordinary over all of us. dom, I am troubled about whether means for 15 years while her husband Based on his record, I am concerned Judge Alito accepts some of the basic argued that she never wanted it that that Judge Alito will not be willing to rights of personal privacy. One of the way. She had made it clear not to take stand up to a President who is deter- cases which we should not forget was extraordinary measures to keep her mined to seize too much power over decided some 41 years ago by the Su- alive. our personal lives. In speeches to the preme Court. The case was Griswold v. There was a battle within the family. ultraconservative Federalist Society Connecticut. Her parents saw it differently, and they which Judge Alito bragged about be- As hard as it may be to believe, there went to court regularly to fight this longing to in the 1980s, Judge Alito has was a law in the State of Connecticut out. Time and again, the Florida courts said he is a ‘‘strong proponent’’ of the and in many other States, including reached the decision that what Terri so-called ‘‘unitary Executive theory,’’ my home State of Illinois, at that time Schiavo’s husband said would be con- another phrase you won’t find in the which made it a crime for a married trolling and that her wishes would be Constitution. He even criticized the couple to buy birth control devices or honored and that extraordinary meas- Supreme Court, specifically Chief Jus- for a doctor to prescribe them or for a ures to keep her alive would be discon- tice Rehnquist, for failing to defer to pharmacist to fill the prescription. It tinued, and then the case would be ap- this theory. During his hearings, Judge was a crime for married couples to en- pealed. Alito said he still supports key ele- gage in family planning by buying any Finally, the day came when all ap- ments of the theory today and indi- type of birth control device. It is hard peals had been resolved, and it was ap- cated he will follow it, to some degree, to believe. That was America in the parent a decision would finally be in making his decisions. 1960s. made to remove the life support she The same unitary executive theory The Supreme Court took a look at was receiving. It was at that moment has been the basis for many claims by this case and said that is wrong. There when a group—a political group—in- the Bush administration that they had is built into our rights as a citizen the spired some Members of Congress to the Executive power to make some of right of privacy, and that privacy goes get involved. They started arguing it the most controversial decisions of to those intimate, personal decisions was the time, at that moment, for the their Presidency, including the war on made by individuals—in this case, hus- Federal courts to step into the hospital terrorism, the use of torture, and the bands and wives—in the State of Con- room and for the Federal judges to power to eavesdrop on our phone con- necticut. They struck down the Con- make decisions overriding the State versations without court approval, as necticut statute. courts, overriding the stated wishes of required by law. I asked Judge Alito what he thought Terri Schiavo, overriding the wishes of Based on the unitary executive the- about this Griswold decision and this her husband. ory, the Bush administration has right of privacy. He was willing to say There is hardly a person in the Sen- claimed the right to seize American that Griswold is settled law. But, of ate who hasn’t faced a similar family citizens and imprison them indefinitely course, Griswold v. Connecticut and decision when someone you love is near without charge. In the Hamdi case, the the right of privacy was the basis of a the end of their life and the doctor Supreme Court, in an opinion written decision made a few years later in Roe comes in and says there are several by Justice Sandra Day O’Connor, re- v. Wade. In that particular case, the things we can do. I know in my family, jected this policy. Only one Justice

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00070 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S105 voted to uphold the administration’s claimed the President has the power religions. We can only look overseas to decision. That Justice, Clarence Thom- under the ‘‘unitary Executive theory.’’ other countries that are torn with as, based his dissent on the unitary ex- So hold on to your seats, America. If strife over religious divisions to under- ecutive theory, the same general the- Judge Alito goes onto the Court push- stand the wisdom of our Founding Fa- ory to which Judge Alito says he sub- ing this theory that was inspired by thers, a wisdom that should be honored scribes. the Federalist Society saying this by our Supreme Court. It appears that if Judge Alito is ap- President has extraordinary powers no The rulings of Judge Sam Alito on proved for the Court, he will join Jus- President has ever had, it will consoli- the Third Circuit raise questions as to tice Thomas and Justice Scalia as only date more power in the executive whether he will continue to protect the the third Supreme Court Justice who branch than our Founding Fathers ever separation of church and state that has has announced public support for this imagined. served America so well. fringe theory called the unitary execu- Does any President have the power to Let me speak for a moment about a tive theory which gives more and more ignore the McCain torture amendment timely issue which is not only in the power to the President and less re- or FISA, the law that requires court headlines but really relates directly to straint of law on his activities. approval to wiretap American citizens? this confirmation consideration of The Supreme Court is supposed to be Based on his record, I am fearful that Judge Alito. Like many Americans, I a check on the power of the President. Judge Alito, facing these questions, is am deeply concerned about recent rev- The Court’s role is to interpret the more likely to defer to the President’s elations that sometime in 2001, Presi- Constitution, not to advance some power than defend our fundamental dent Bush authorized the National Se- marginal theory of the Federalist Soci- constitutional rights. curity Agency to begin spying on ety or any other special interest group. I will speak more to this issue about Americans in the United States with- During his hearings, Judge Alito did wiretaps in a moment. out court approval. This is an apparent attempt to distinguish his position on I also fear that Judge Alito, if con- violation of law. the unitary executive theory from the firmed, would blur the traditional line Let me say at the outset, this is not Bush administration’s, but he refused between church and state. In his 1985 about whether we should wiretap ter- to say whether he disagreed with Jus- job application essay, he indicated his rorists. Of course, we should. We should tice Thomas’ dissent in Hamdi, and he disapproval of the Warren Court deci- use every legal tool available to put an repeatedly refused to say whether this sions on the establishment clause of end to Osama bin Laden’s deadly fran- President or any President has the the Constitution. chise. right to disregard a law passed by Con- What is the establishment clause? In Under a law called the Foreign Intel- gress. the first amendment, the Constitution ligence Surveillance Act, or FISA, the Several Senators asked Judge Alito makes clear that we have the freedom President has broad authority to wire- about this directly, and several times of religious belief. Of course, that tap suspected terrorists. The FISA he gave the same carefully worded re- means each of us has the right under Court has been virtually a rubberstamp sponse—and I quote it: the law, under our Constitution, to be- for Presidents asking for wiretap or- The President must take care that the lieve any religious belief or to hold to ders. In fact, over 19,000 requests have statutes of the United States that are con- no religious belief. That is our basic been made of this court to wiretap sus- sistent with the Constitution are complied freedom. It says: pected terrorists, and the administra- with. Congress shall make no law respecting an tion has been denied only 4 times. Here is what we don’t know about establishment of religion. . . . 19,000 requests, 4 denials. that statement: If the President claims This was an understandable part of Within the FISA law there is an that a law is not consistent with the our Constitution because many of our emergency exception so if there is a Constitution, can he ignore the law Founding Fathers hailed from England, suspicion that a conversation about to with impunity? And if Judge Alito is which had an official national church. take place needs to be wiretapped to on the Supreme Court, is that how he They wanted to make it clear that protect America, the Government can would rule? That certainly is the way there would be a separation, a clear move quickly, without court approval, he answered the question. wall of separation between church and so long as they go through the regular Presidents often issue formal state- state, as Thomas Jefferson said in the process within 72 hours. So the Govern- ments when they sign a law. When early 1800s. ment can act if they suspect that a Judge Alito was an attorney in Presi- The Warren Court, led by Earl War- conversation would lead to terrorism dent Reagan’s Justice Department, he ren, as Chief Justice, struck down gov- and endanger Americans. advocated the use of Presidential sign- ernment-sponsored prayer and govern- So the President has authority, ing statements to, in his own words, ment-sponsored devotional Bible read- under this Foreign Intelligence Sur- ‘‘increase the power of the Executive to ing in public schools, arguing that it veillance Act, to engage in the activi- shape the law.’’ In this way, Sam Alito violated the establishment clause. The ties he has described to the American argued ‘‘the President will get in the decisions by the Warren Court were people: time-sensitive electronic sur- last word on questions of interpreta- nearly unanimous. They stood for the veillance on suspected terrorists. tion.’’ proposition, as the Constitution said, What this debate really is about is The Framers of our Constitution that our government must be neutral the President’s constitutional obliga- didn’t see it the same as Judge Alito. toward religion in order to maintain tion to follow the laws of the land. They said Congress was to have the this healthy separation of church and Legal scholars, former Government of- last word. state. This concept of government neu- ficials from both political parties, and The Bush administration has adopted trality is the bedrock of today’s main- the nonpartisan Congressional Re- Judge Alito’s proposal. In more than stream establishment clause thinking, search Service have all concluded that 100 Presidential signing statements, and it is led by none other than Justice the NSA program appears to violate the Bush administration has cited uni- Sandra Day O’Connor. Yet from a re- the law. tary executive theory and pledged to view of Judge Alito’s 15 years on the Even President Bush has recognized uphold the law if it doesn’t conflict Federal bench, it is clear that Judge it is improper to wiretap Americans in with this theory. Alito has serious reservations about the United States without court ap- Just 3 weeks ago, we saw a good il- whether government should be neutral proval. Listen to what President Bush lustration. The White House issued a toward religion, as our Constitution re- said in a speech to the American people Presidential signing statement claim- quires. on April 20, 2004. I quote it verbatim: ing that the President could set aside I think we ought to reflect on this Now, by the way, any time you hear the the McCain torture amendment which long and hard. We live in a country of U.S. Government talking about wiretapping, it requires—a wiretap requires a court order. Congress passed overwhelmingly in De- diverse religious belief. We try to show Nothing has changed, by the way. When we cember. Under what rationale could a respect for each person’s religious be- are talking about chasing down terrorists we President ignore a law that passed in lief, and we make it clear that our gov- are talking about getting a court order be- this Chamber 90 to 9? The White House ernment won’t pick favorites among fore we do so.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00071 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S106 CONGRESSIONAL RECORD — SENATE January 25, 2006 That is the end of the quote, April 20, U.S. SENATE. Electronic Surveillance to Gather Foreign 2004, after the President had initiated Washington, DC, January 25, 2006. Intelligence Information, by Elizabeth A. this NSA wiretapping that is not ap- President GEORGE W. BUSH, Bazan & Jennifer K. Elsea. proved by law and does not use a court The White House, If you or officials in your administration Washington, DC. believe that FISA, or any law, does not give order. DEAR PRESIDENT BUSH: We strongly sup- you enough authority to combat terrorism, When President Bush concluded over port efforts to do everything possible, within you should propose changes in the law to 4 years ago that he wanted to eaves- the limits of the law, to combat terrorism. Congress. You may not simply disregard the drop on Americans without the court We are therefore gravely concerned that law. approval required by law, he had an ob- sometime in 2001, in apparent violation of In your December 19, 2005 press conference, ligation to come to Congress and ask federal law, you authorized the National Se- you called FISA ‘‘a very important tool.’’ us to change the law. curity Agency (NSA) to eavesdrop on Ameri- FISA is more than a tool; it is a law, and we Congress has always been a willing cans in the United States without court ap- are a nation of laws. Under Article 1 of the proval. Constitution, Congress has the power to partner when the President has re- When you concluded over four years ago quested additional authority to fight make laws. Under Article 2 of the Constitu- that existing law did not provide you suffi- tion, you must take care that the laws are terrorism. I can recall the President, cient authority to conduct this program, you faithfully executed. within days of 9/11, asking for an au- had an obligation to propose changes in the In order to win the war on terrorism, we thorization for the use of force by this law to Congress. Rather than doing so, you must maintain the high ground by respect- Congress to go after Osama bin Laden have apparently chosen to ignore the law. ing the rule of law as embodied in our Con- and al-Qaida, which I readily voted for. We urgently request that you notify us im- stitution. To do otherwise makes us weaker There was unanimous support for a bi- mediately what changes in the law you be- as a nation and harms our national security. partisan resolution which passed the lieve are necessary to permit effective sur- The Supreme Court long ago rejected the no- veillance of suspected terrorists, and why tion that there is a wartime exception to the Senate. these changes are needed. Shortly thereafter, the President Constitution’s separation of powers. As the The Foreign Intelligence Surveillance Act Court concluded in the historic Youngstown came to Congress and asked us to pass (FISA) gives the government broad author- Steel case: ‘‘The Constitution is neither si- the PATRIOT Act. It was an act that ity to wiretap suspected terrorists. Federal lent nor equivocal about who shall make gave the Government more authority, law provides that FISA and the criminal laws which the President is to execute.... more tools, more legal ways to go after wiretap statute ‘‘shall be the exclusive The Founders of this Nation entrusted the terrorism in the United States. It was means by which electronic surveillance . . . lawmaking power to the Congress alone in overwhelmingly approved with only and the interception of domestic wire, oral, both good and bad times.’’ 343 U.S. 579, 587– one dissenting vote in the Senate. and electronic communications may be con- 89 (1952). ducted.’’ 18 U.S.C. § 2511(2)(f). FISA makes it In light of the very serious nature of this Within the PATRIOT Act, the Presi- a crime, punishable by up to five years in dent asked for some changes in this matter, we request that you respond to this prison, to conduct electronic surveillance ex- letter as soon as possible, and, in any case, FISA law to make it easier to wiretap cept as permitted by statute. 50 U.S.C. § 1809. no later than February 1, 2006. terrorists. In fact, you have recognized that it is im- Sincerely, So the administration at this point proper to subject Americans in the United HARRY REID, seems to concede the point that they States to warrantless wiretapping. In a U.S. Senator. were bound by this law and were look- speech on April 20, 2004, you said: ‘‘Now, by EDWARD M. KENNEDY, ing for changes so they could use it, in the way, any time you hear the United U.S. Senator. their words, more effectively. We tried States government talking about wiretap, it RICHARD J. DURBIN, requires—a wiretap requires a court order. U.S. Senator. to accommodate them as much as we Nothing has changed, by the way. When possibly could. When the White House RUSSELL D. FEINGOLD, we’re talking about chasing down terrorists, U.S. Senator. asked Congress to pass this bill, we co- we’re talking about getting a court order be- operated with them. Members of Con- fore we do so.’’ Mr. DURBIN. The President cannot gress from both sides of the aisle were You and officials in your administration continue to simply disregard the law. happy to work with the President to have repeatedly asserted that FISA does not At a press conference on December keep America safe. provide adequate authority to monitor sus- 19, 2005, President Bush called FISA ‘‘a That is not what the President has pected terrorists. However, FISA authorizes very important tool.’’ I would say to done here. Instead, we have learned monitoring suspected terrorists, who are the the President, FISA is more than a purported targets of NSA’s warrantless wire- tool. It is a law, and we are a nation of that the President has not followed taps. Moreover, FISA includes an emergency even the law that he asked us to exception for situations where there is insuf- laws. change. He claims the power to eaves- ficient time to obtain judicial approval be- Our Constitution separates powers drop on the phone conversations of fore beginning a wiretap. This exception al- between different branches of Govern- Americans and e-mails without any lows the government to commence elec- ment. Under article I of the Constitu- court approval, without any legal au- tronic surveillance immediately, as long as tion, Congress has the power to make thority. it seeks a court order within 72 hours. 50 laws. Under article 2 of the Constitu- That raises fundamental questions. Is U.S.C. § 1805(f). During the course of its exist- tion, the President must take care that this President or any President above ence, the FISA court has approved over the laws are faithfully executed. 19,000 wiretap applications from the govern- The Supreme Court has faced ques- the law? Does the President have the ment while disapproving only four. authority to disregard laws passed by It therefore appears that your administra- tions like this in the past, questions re- Congress, whether it is the question of tion has sufficient authority under FISA to garding the powers of the President in torture or eavesdropping? Can Congress engage in the activities you have described— the midst of a war. During the Korean place any limits on the President’s time-sensitive electronic surveillance of sus- war, President Harry Truman violated power over our lives? pected terrorists. the law by seizing America’s steel mills Today I joined the distinguished mi- Officials in your administration have as- to aid the war effort. In the historic serted that the government’s internal proc- nority leader, Senator HARRY REID, and ess for preparing and authorizing a FISA ap- Youngstown Steel case, the Court re- my colleagues, Senators KENNEDY and plication is too burdensome and slow to jected President Truman’s actions and FEINGOLD, and sent a letter to Presi- monitor suspected terrorists effectively. To concluded: dent Bush. We have urgently requested be clear, your administration’s bureaucratic The Constitution is neither silent nor that the President notify us imme- and paperwork delays are not an excuse for equivocal about who shall make laws which diately of the changes in the law that violating the law. As the nonpartisan Con- the President is to execute. . . . The Found- he believes are necessary to permit ef- gressional Research Service (CRS) con- ers of this Nation entrusted the lawmaking fective surveillance of suspected ter- cluded: ‘‘To the extent that a lack of speed power to the Congress alone in both good and rorists and why the changes are need- and agility is a function of internal Depart- bad times. ment of Justice procedures and practices ed. In order to win the war on terrorism, under FISA, it may be argued that the Presi- we must maintain the high ground by I ask unanimous consent that this dent and the Attorney General could review letter be printed in the RECORD. these procedures and practices in order to in- respecting our Constitution and re- There being no objection, the mate- troduce more streamlined procedures to ad- specting the laws of the land. To do rial was ordered to be printed in the dress such needs.’’ CRS Memorandum, Presi- otherwise makes us weaker as a nation RECORD, as follows: dential Authority to Conduct Warrantless and harms our national security.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00072 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S107 And that is what is at stake with this Mrs. BOXER. Mr. President, yester- laws to protect Americans’ health, Supreme Court nomination. Judge Sam day in Burbank, CA, I gave a major ad- safety, and welfare? Judge Alito’s Alito, from his early days in the dress before my constituents announc- record says no. Reagan administration, through the ing my opposition to the nomination of In the 1996 Rybar case, Judge Alito rulings in his court and his testimony Samuel Alito to the Supreme Court of voted to strike down the Federal ban before the Judiciary Committee, time the United States. on the transfer or possession of ma- and again seems to defer to the Execu- Today I am announcing my opposi- chine guns because he believed it ex- tive’s assertions of power. At this mo- tion to the nomination of Samuel Alito ceeded Congress’s power under the ment in history, like none other in re- to the Supreme Court of the United Commerce Clause. His Third Circuit cent times, that is a critical and time- States. colleagues sharply criticized his dis- ly issue. We have to ask the question, According to article II of the Con- sent and said that it ran counter to ‘‘a would this judge on the Court protect stitution, Justices of the Supreme basic tenet of the constitutional sepa- our basic privacy and personal freedom Court may not be appointed by the ration of powers.’’ And Judge Alito’s or would he give to this President President without the advice and con- extremist view has been rejected by six power to ignore the law? sent of the Senate. So it is our solemn other circuit courts and the Supreme Last week Attorney General duty to consider each nomination care- Court. Judge Alito stood alone and Gonzales issued a long memo sup- fully, keeping in mind the interests of failed to protect our families. porting the administration’s position the American people. In a case concerning worker protec- on the NSA spying program. That This nomination is particularly cru- tion, Judge Alito was again in the mi- memo went so far as to suggest that cial because the stakes have rarely nority when he said that Federal mine this administration is not even bound been so high. health and safety standards did not by the PATRIOT Act. It suggests that First, consider the context in which apply to a coal processing site. He tried the President can use the powers au- this nomination comes before us. The to explain it as just a ‘‘technical issue thorized by the PATRIOT Act without seat that Judge Alito has been nomi- of interpretation.’’ I fear for the safety even the limited checks and balances nated for is now held by Justice Sandra of our workers if Judge Alito’s narrow, contained in the PATRIOT Act, regard- Day O’Connor, who came to the Court technical reading of the law should less of what Congress says. in 1981. ever prevail. So what has happened is the adminis- For years, Justice O’Connor has pro- Will Justice Alito vote to protect the tration has gone from the question of vided the tie-breaking vote and a com- right to privacy, especially a woman’s torture to this whole question of eaves- monsense voice of reason in some of reproductive freedom? Judge Alito’s dropping, and now has suggested that the most important cases to come be- record says no. this President has the authority to do fore the Court, including a woman’s We have all heard about Judge whatever he cares to do in the name of right to choose, civil rights, and free- Alito’s 1985 job application, in which he his power as Commander in Chief. The Supreme Court in the past has dom of religion. wrote that the Constitution does not not agreed with Presidents who have Second, consider the tumultuous po- protect the right of a woman to choose. tried to seize that much power. Presi- litical climate in our Nation. President He was given the chance to disavow dent Truman learned that the hard Bush understood that in 2000 when he that position during the hearings and way. I am hopeful this Supreme Court promised to govern from the center, he refused to do so. He had the chance will respect the Constitution and re- and be ‘‘a uniter, not a divider.’’ Sadly, to say, as Judge Roberts did, that Roe spect the laws of the land and restrain this nomination shows that he has for- v. Wade is settled law, and he refused. this President or any President who gotten that promise because it is not He had the chance to explain his dis- tries to move that far and that fast. from the center and it is not uniting sent in the Casey decision, in which he So it comes down to this with the the Nation. argued that the Pennsylvania spousal Alito nomination. I am afraid as we The right thing to do would have notification requirement was not an look carefully at his record it is clear been to give us a justice in the mold of undue burden on a woman seeking an that he would allow the Government to Justice O’Connor, and that is what the abortion because it would affect only a go too far, to intrude on our personal President should have done. small number of women, but he refused privacy and our freedoms. I am afraid Let me be clear: I do not deny Judge to back away from his position. The that he would take the country in the Alito’s judicial qualifications. He has Supreme Court, by a 5 to 4 vote, found wrong direction when it comes to wom- been a government lawyer and judge the provision to be unconstitutional, en’s rights and civil rights. I am afraid for more than 20 years and the Amer- and Justice O’Connor, co-writing for that his record, as I mentioned earlier ican Bar Association rated him well the Court, criticized the faulty anal- on the floor today, is evidence that qualified. He is an intelligent and capa- ysis supported by Judge Alito, saying when he is given a choice between rul- ble person. His family should be proud that ‘‘the analysis does not end with ing in court for an established institu- of him and all Americans should be the one percent of women’’ affected tion—whether it is a business or a gov- proud that the American dream was . . . ‘‘it begins there.’’ ernment—or standing with a consumer there for the Alito family. To my mind, Judge Alito’s ominous or an individual, he consistently rules But after reviewing the hearing statements and narrow-minded rea- for the established institution. I am record and the record of his state- soning clearly signal a hostility to afraid that the 1985 memo, which be- ments, writings and rulings over the women’s rights, and portend a move came a large part of his recent hearing, past 24 years, I am convinced that back toward the dark days when abor- still guides Judge Alito in many re- Judge Alito is the wrong person for tion was illegal in many states, and spects in his heart of hearts. this job. many women died as a result. In the I think the fact that Harriet Miers I am deeply concerned about how 21st century, it is astounding that a was rejected by so many conservative Justice Alito will impact the ability of Supreme Court nominee would not groups and the President had to with- other families to live the American view Roe v. Wade as settled law when draw her nomination has to be taken dream to be assured of privacy in their its fundamental principle a woman’s into consideration here. Judge Sam homes and their personal lives, to be right to choose—has been reaffirmed Alito came as her successor, as the secure in their neighborhoods, to have many times since it was decided. nominee. The same groups that had re- fair treatment in the workplace, and to Will Justice Alito vote to protect jected her accepted Sam Alito. They have confidence that the power of the Americans from unconstitutional know or believe they know what I have executive branch will be checked. searches? Judge Alito’s record says no. spoken of this evening, that his is a As I reviewed Judge Alito’s record, I In Doe v. Groody in 2004, he said a po- philosophy that is outside the main- asked whether he will vote to preserve lice strip search of a 10-year-old girl stream, that is not consistent with the fundamental American liberties and was lawful, even though their search values of this country and not con- values. warrant didn’t name her. Judge Alito sistent with the fine record written by Will Justice Alito vote to uphold said that even if the warrant did not Justice Sandra Day O’Connor. Congress’s constitutional power to pass actually authorize the search of the

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00073 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S108 CONGRESSIONAL RECORD — SENATE January 25, 2006 girl, ‘‘a reasonable police officer could gress, Judge Alito refused to rule it That is precisely the problem. As a certainly have read the warrant as out. judge, Samuel Alito seemed to ap- doing so . . .’’ This casual attitude to- When asked if the President had the proach his cases with an analytical ward one of our most basic constitu- power to authorize someone to engage coldness that reflected no concern for tional guarantees—the fourth amend- in torture, Alito refused to answer. the human consequences of his rea- ment right against unreasonable The administration is now asserting soning. searches—is almost shocking. As Judge vast powers, including spying on Amer- Listen to what he said about a case Alito’s own Third Circuit Court said re- ican citizens without seeking war- involving an African-American man garding warrants, ‘‘a particular de- rants—in clear violation of the Foreign convicted of murder by an all-White scription is the touchstone of the Intelligence Surveillance Act—vio- jury in a courtroom where the prosecu- Fourth Amendment.’’ We certainly do lating international treaties, and ig- tors had eliminated all African-Amer- not need Supreme Court Justices who noring laws that ban torture. We need ican jurors in many previous murder do not understand this fundamental Justices who will put a check on such trials as well. constitutional protection. overreaching by the executive, not Judge Alito dismissed this evidence Will Justice Alito vote to let citizens rubberstamp it. Judge Alito’s record of racial bias and said that the jury stop companies from polluting their and his answers at the hearings raise makeup was no more relevant than the communities? Judge Alito’s record very serious doubts about his commit- fact that left-handers have won five of says no. ment to being a strong check on an the last six Presidential elections. In the Magnesium Elektron case, ‘imperial President.’ When asked about this analogy during Judge Alito voted to make it harder for In addition to these substantive mat- the hearings, he said it ‘‘went to the citizens to sue for toxic emissions that ters, I remain concerned about Judge issue of statistics . . . (which) is a violate the Clean Water Act. Fortu- Alito’s answers regarding his member- branch of mathematics, and there are nately, in another case several years ship in the Concerned Alumni of ways to analyze statistics so that you later, the Supreme Court rejected the Princeton and his failure to recuse draw sound conclusions from them. Third Circuit and Alito’s narrow read- himself from the Vanguard case, which . . .’’ ing of the law. Judge Alito doesn’t he had promised to do. That response would have been ap- During the hearings, we all felt great seem to care about a landmark envi- propriate for a college math professor, compassion for Mrs. Alito when she be- ronmental law. but it is deeply troubling from a poten- came emotional in reaction to the Will Justice Alito vote to let working tial Supreme Court Justice. tough questions her husband faced in women and men have their day in As the great jurist and Supreme the Judiciary Committee. Everyone in court against employers who discrimi- Court Justice Oliver Wendell Holmes, politics knows how hard it is for fami- nate against them? Judge Alito’s Jr. wrote in 1881, ‘‘The life of the law lies when a loved one is asked tough record says no. has not been logic; it has been experi- questions. It is part of a difficult proc- In 1997, in the Bray case, Judge Alito ence . . . The law embodies the story of ess, and whoever said politics is not for was the only judge on the Third Circuit a nation’s development through many the faint of heart was right. to say that a hotel employee claiming centuries, and it cannot be dealt with Emotions have run high during this as if it contained only the axioms and racial discrimination could not take process. That is understandable. But I her case to a jury. corollaries of a book of mathematics.’’ wish the press had focused more on the What Holmes meant is that the law In the Sheridan case, a female em- tears of those who will be affected if ployee sued for discrimination, alleg- is a living thing, that those who inter- Judge Alito becomes Justice Alito and pret it must do so with wisdom and hu- ing that after she complained about in- his out-of-the-mainstream views pre- cidents of sexual harassment, she was manity, and with an understanding of vail. the consequences of their judgments demoted and marginalized to the point I worry about the tears of a worker that she was forced to quit. By a vote for the lives of the people they affect. who, having failed to get a promotion It is with deep regret that I conclude of 10 to 1, the Third Circuit found for because of discrimination, is denied the that Judge Alito’s judicial philosophy the plaintiff. opportunity to pursue her claim in lacks this wisdom, humanity and mod- Guess who was the one? Only Judge court. Alito thought the employee should eration. He is simply too far out of the I worry about the tears of a mentally mainstream in his thinking. His opin- have to show that discrimination was ill woman who is forced by law to tell the ‘‘determinative cause’’ of the em- ions demonstrate neither the independ- her husband that she wants to termi- ence of mind nor the depth of heart ployer’s action. Using his standard nate her pregnancy and is afraid that would make it almost impossible for a that I believe we need in our Supreme he will leave her or stop supporting Court Justices, particularly at this woman claiming discrimination in the her. workplace to get to trial. crucial time in our Nation’s history. I worry about the tears of a young That is why I will oppose this nomi- Finally, will Justice Alito be inde- girl who is strip searched in her own nation. pendent from the executive branch home by police who have no valid war- that appointed him, and be a vote rant. f against power grabs by the president? I worry about the tears of a mentally MORNING BUSINESS Judge Alito’s record says no. retarded man, who has been brutally Mr. THUNE. Mr. President, I ask As a lawyer in the Reagan Justice assaulted in his workplace, when his unanimous consent that there now be a Department, he authored a memo sug- claim of workplace harassment is dis- period of morning business with Sen- gesting a new way for the President to missed by the court simply because his ators permitted to speak for up to 10 encroach on Congress’s lawmaking lawyer failed to file a well-written minutes each. powers. He said that when the Presi- brief on his behalf. The PRESIDING OFFICER. Without dent signs a law, he should make a These are real cases in which Judge objection, it is so ordered. statement about the law, giving it his Alito has spoken. Fortunately, he did f own interpretation, whether it was not prevail in these cases. But if he consistent with what Congress had goes to the Supreme Court, he will GSRI HEALTHY LIVING STUDY— written or not. He wrote that this have a much more powerful voice—a THE NEW NORMAL? WHAT GIRLS would ‘‘get in the last word on ques- radical voice that will replace a voice SAY ABOUT HEALTHY LIVING tions of interpretation’’ of the law. In of moderation and balance. Mr. FRIST. Mr. President, America the hearings, Judge Alito refused to Perhaps the most important state- is confronting a childhood obesity cri- back away from this memo. ment Judge Alito made during the en- sis, and over the past 25 years, the per- When asked whether he believed the tire hearing process was when he told centage of overweight girls has more President could invade another coun- the Judiciary Committee that he ex- than doubled—to 16 percent of girls try, in the absence of an imminent pects to be the same kind of Justice on ages 6 to 19, up from 6 percent in 1974. threat, without first getting the ap- the Supreme Court as he has been a To support the search for a solution, proval of the American people, of Con- judge on the Circuit Court. the Girl Scout Research Institute

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00074 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S109 asked girls directly how they define of access to more informal physical ac- Heather and Jim’s business skills and health and what motivates them to tivities are all barriers. Many girls extensive network with John’s medical lead a healthier lifestyle. The results ages 11–17 say they do not play sports expertise to create a cutting-edge com- are captured in a new report, titled The because they do not feel skilled or prehensive cancer institute in Nevada. New Normal? What Girls Say About competent, 40 percent, or because they In 2002, they founded the Nevada Can- Healthy Living. do not think their bodies look good, 23 cer Institute and built a 142,000 square This new report brings the voice of percent. foot facility in Las Vegas that is dedi- girls to the forefront of the conversa- Four, girls cite their mothers not cated to researching, preventing, de- tion on childhood obesity for the first only as role models but also as leading tecting, and curing cancer. Dr. John time and finds that girls are in many sources of nutritional information and Murren served on the institute’s board ways ahead of the curve, using a var- emotional reinforcement. Mothers of directors as well as an adjunct fac- ied, complex set of norms to define exert tremendous influence. Girls tend ulty member. Dr. Murren’s death will health. to mirror their mothers’ activity lev- inspire those he left behind to make Today’s girls are defining ‘‘health’’ els, weight and body image. And given the Nevada Cancer Institute even bet- on their own terms, placing the same the increasingly poor diet and sed- ter. John would want this. value on emotional well-being and self- entary lifestyle of today’s adults, it is Dr. John Murren’s vision for the Ne- esteem as they do on diet and exercise. clear that efforts to improve the health vada Cancer Institute was based on an For girls, being healthy is more than of girls must also target parents—espe- impressive medical foundation. He just eating right and exercising; it is cially mothers. earned his B.A. in chemistry and his- also about feeling good about oneself Continuing a 93-year tradition begun tory from Duke University cum laude and being supported by family and by founder Juliette Gordon Low, Girl followed by his M.D. in 1984 from the peers. Scouts offers an array of successful ini- Loyola-Stritch School of Medicine in Girls say that efforts to reduce child- tiatives and age-appropriate curricula Chicago. He completed his internship hood and adolescent obesity that focus in health, nutrition, and fitness—in- and residency in Internal Medicine at solely on nutrition or physical activity cluding more than 60 badges and St. Vincent’s Hospital in New York miss the mark. awards related to healthy living. And where he was chief resident. In 1988, Dr. The study lays out four key findings: the findings of The New Normal? What Murren accepted a postdoctoral fellow- One, girls aspire to be ‘‘normal Girls Say About Healthy Living, will ship in medical oncology at the Yale- healthy,’’ a concept they often asso- continue this tradition in helping in- New Haven Hospital where he was an ciate with appearing normal and being form GSUSA’s ongoing program and attending physician as well as an asso- supported by peers and family. Girls policy work. ciate professor of medicine. Since 1992, tended to view any diet or lifestyle To turn this research into action he had been awarded grant funding to choice as healthy as long as it doesn’t today, Girl Scouts is encouraging all study cancer drug therapies yielding harm their appearance or their rela- girls and their families to engage in ad- invaluable contributions to the under- tionships with friends and family. vocacy at the local level. Advocacy is a standing of the effectiveness of cancer Overall, 65 percent of girls say their critical component in educating and drug therapies, particularly chemo- lifestyle is ‘‘healthy enough for my influencing key policy and decision therapy. age,’’ while just 16 percent describe makers as well as the general public Dr. Murren was the chief of the Yale their lifestyle as ‘‘very healthy.’’ Al- about what girls need to lead healthy Medical Oncology Outpatient Clinic though about two-thirds, 65 percent, lives. To bring girls’ voices to the dis- and director of the Lung Cancer Unit correctly identify themselves as being cussion about health in their commu- at the Yale Cancer Center in New either normal weight or overweight, nities, Girl Scouts is calling on all girls Haven, Connecticut. At Yale, Dr. one in three girls has a distorted idea to become involved in the development Murren had the largest clinical prac- about her weight. Older girls also tend- and implementation of their local tice at the Cancer Center and treated ed to be less satisfied with their weight School Wellness Policy. thousands of patients and their fami- than younger girls. Ninety-five percent of schools must lies over a distinguished career. His Two, girls have a holistic view of establish a school wellness program clinical research widely published. He health and describe emotional health consisting of nutrition and physical ac- sat on several peer-review boards and as important as physical health. Vir- tivity goals by the first day of the 2006– was sought out worldwide for his exper- tually all girls agree that emotional 2007 school year. We want girls to take tise. He was also a member of the board health is as important as physical action through advocacy on this timely of trustees of the Frisbee Foundation. health—and 88 percent of 11- to 17-year- and important issue so that as schools In addition to his clinical, edu- old girls believe that feeling good address the wellness of our Nation’s cational, and research endeavors, Dr. about yourself is more important than children and youth, the unique girl- Murren served on the Clinical Research how you look. More than a third of perspective is fully considered. Subcommittee of the American Asso- girls ages 11–17 reported eating more f ciation of Cancer Research and the when they are ‘‘stressed out’’ and over- American College of Surgeons Cancer weight girls are more than twice as IN MEMORY OF JOHN ROBERT Committee. He also served as cochair likely as girls who are not overweight MURREN, M.D. of Novel Therapeutics for the American to report eating more in times of Mr. REID. Mr. President, I rise today Association of Cancer Research Na- stress. to remember Dr. John Robert Murren, tional Meeting in 2001. He was a mem- Three, girls already know what is a renowned oncologist, cancer re- ber of the Research Grants Council in healthy, but many don’t use the infor- searcher, and a beloved husband, father Hong Kong and was an active lecturer mation they have to make healthy and son. and writer. choices. Obstacles at home include a I first met Dr. Murren 31⁄2 years ago. The loss of Dr. Murren will be felt be- decline in the frequency of family He visited me in my Capitol office with yond medical and scientific circles. Dr meals and increased television watch- his brother and sister-in-law, Jim and Murren is survived by Nancy, his wife; ing and computer use as girls get older. Heather Murren. In this meeting, they John, his son; Jean Perkins Murren, A third of girls experience sit down to shared with me their vision for a new his mother; Jim and Michael, his a family meal no more than twice a world-class cancer research facility in brothers and Kathie, his sister as well week. More than 60 percent of teenage Nevada. as sisters-in-law: Heather Hay Murren girls skip breakfast at least once a Like so many Americans, the and Mary Kay Murren and brothers-in- week and nearly 20 percent skip it Murrens had been touched by cancer. law George Koether as well as Jeff and every day. They had witnessed first-hand the dev- Bill Hughes and wives, family and Obstacles at school include reliance astation caused by cancer and were mother-in-law, Doris Hughes, as well as on vending machines, poor taste and motivated to do something to lessen several nieces and nephews. quality of school lunches, optional the toll of this horrible illness. As Dr. Murren will be missed by his physical education classes, and a lack such, the Murrens resolved to combine community in Fairfield, CT, where he

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00075 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S110 CONGRESSIONAL RECORD — SENATE January 25, 2006 led an active life. He was a parishioner 2006. Roland was employed with He was a member of the 1st Special of St. Thomas Roman Catholic church DynCorp International and was as- Troops Battalion in the 101st Airborne there, and he enjoyed reading, skiing, signed to the Civilian Police Advisory Division based at Fort Campbell, KT. tennis, and watching his son, John, Training Team in Iraq. He was helping This brave young soldier leaves behind play ice hockey. to train and equip a 350,000-member his father and mother, James and No one is immune to cancer not even Iraqi security force. Sadly, he was Marilyn Frantz; his brothers, Chris and those individuals who, like Dr. Murren, killed when a roadside bomb struck his Eric, who also serve in the military; dedicate their life’s work to cancer re- convoy near Basra. and his fiance, Amalia Cerbin. search and treating individuals suf- Prior to joining DynCorp in Novem- Today, I join Matthew’s family and fering from cancer. If we in Congress ber 2005, Barvels answered his Nation’s friends in mourning his death. While want to honor the life of Dr. Murren call to duty to protect and defend this we struggle to bear our sorrow over and the 1 million Americans who will great country. After serving for 12 this loss, we can also take pride in the be diagnosed with cancer this year, years in the military, he became a po- example he set, bravely fighting to then we must invest more Federal lice officer. Beginning his career in make the world a safer place. It is his money into cancer research. Otherwise, Minnesota, Barvels eventually served courage and strength of character that we will continue to lose too many of in law enforcement for nearly 20 years people will remember when they think our family members and friends to this including his most recent position with of Matthew, a memory that will burn devastating illness. the Aberdeen Police Department. brightly during these continuing days In closing, I extend to his family, Friends and former co-workers at the of conflict and grief. friends, and associates, my sympathy Aberdeen Police Department remember Matthew was known for his dedica- on the passing of a good American, Dr. Roland with deep admiration. One col- tion to his family and his love of coun- John Murren. It is my wish that his league remarked, ‘‘During his time at try. Today and always, Matthew will legacy will be a country that defeats the police department, he diligently be remembered by family members, the dreaded disease we call cancer. patrolled the streets of our city pro- friends, and fellow Hoosiers as a true viding safety and security to the citi- American hero, and we honor the sac- f zens in our community. Roland pos- rifice he made while dutifully serving HONORING OUR ARMED FORCES sessed an incredible ability to talk to his country. people and [to] make anyone he talked As I search for words to do justice in SERGEANT TOBIAS MEISTER to feel at ease.’’ honoring Matthew’s sacrifice, I am re- Mr. GRASSLEY. Mr. President, I rise Roland Barvels bravely served our minded of President Lincoln’s remarks today to honor an heroic American country in so many ways. His wife and as he addressed the families of the fall- who has fallen while serving his coun- children are in the thoughts and pray- en soldiers in Gettysburg: ‘‘We cannot try in Operation Enduring Freedom in ers of my family during this difficult dedicate, we cannot consecrate, we Afghanistan. First Sergeant Tobias time. It is my sincere hope that they cannot hallow this ground. The brave Meister died December 28, 2005, when a will take comfort knowing Ronald’s men, living and dead, who struggled bomb was detonated near his humvee long and distinguished career of pro- here, have consecrated it, far above our just south of Asadabad, Afghanistan. tecting those most in need is truly ad- poor power to add or detract. The First Sergeant Meister was part of the mirable, and his dedication to helping world will little note nor long remem- Sand Springs based 486th Civil Affairs others is an inspiration to us all. ber what we say here, but it can never Battalion and was assigned to the I join with all South Dakotans in ex- forget what they did here.’’ This state- Army Reserve’s 321st Civil Affairs Bri- pressing my deepest sympathy to the ment is just as true today as it was gade based in San Antonio, TX. My family and friends of Roland Barvels. nearly 150 years ago, as I am certain deepest sympathies go out to his wife He will be missed, but his service to that the impact of Matthew’s actions Alicia, his 1 year old son Will, his par- our Nation will never be forgotten. will live on far longer that any record ents David and Judy, his brother and SPECIALIST MATTHEW C. FRANTZ of these words. many more family and friends. Mr. BAYH. Mr. President, I rise It is my sad duty to enter the name First Sergeant Meister was born in today with a heavy heart and deep of Matthew C. Frantz in the official Kingsley, IA and graduated from sense of gratitude to honor the life of a record of the U.S. Senate for his serv- Remsen-Union High School in 1994. He brave young man from Lafayette. Mat- ice to this country and for his profound was employed by Horizon Natural Re- thew Frantz, 23 years old, died on Jan- commitment to freedom, democracy, sources, an oil and gas firm, after he uary 20 when an improvised explosive and peace. When I think about this just had successfully completed a business device detonated near his vehicle dur- cause in which we are engaged and the administration degree with a con- ing a patrol near Al Huwijah in Iraq. unfortunate pain that comes with the centration in international business With his entire life before him, Mat- loss of our heroes, I hope that families from the University of Texas at San thew risked everything to fight for the like Matthew’s can find comfort in the Antonio. values Americans hold close to our words of the prophet Isaiah who said, Tobias Meister joined the Iowa Na- hearts, in a land halfway around the ‘‘He will swallow up death in victory; tional Guard in 1992 and served as an world. and the Lord God will wipe away tears infantryman before transferring to the Following in the family tradition of from off all faces.’’ U.S. Army Reserve in 1998. He was service, Matthew had been committed May God grant strength and peace to named Drill Sergeant of the Year in to joining the military since he was in those who mourn, and may God be with 2002, the award for the Nation’s top the second grade. A 2001 graduate of all of you, as I know He is with Mat- Army Reserve drill sergeant. He will be Lafayette Jefferson High School, his thew. remembered for his patriotism, his love teachers recalled how eager he was to SERGEANT CLIFTON YAZZIE for his country and his fellow soldiers. join the service, as well as what a de- Mr. BINGAMAN. Mr. President, I As written by comrades on his website, cent and friendly student he was. One humbly rise today to pay tribute to he had ‘‘so much passion for what he of his teachers told a local news outlet, SGT Clifton Yazzie. Sadly, this out- was doing, so much patriotism it was a ‘‘Matt was very excited about being standing and brave young man was privilege and an honor to work with part of the military. It was what he killed in Hawijah, Iraq, on January 20, him.’’ I urge all of my colleagues here wanted to do. He was just a young man 2006. and all Americans to extend their pray- that wanted to serve his country.’’ As a cross-country runner and bas- ers to the family of a truly heroic Matthew had been in the military for ketball player in high school, SGT American, First Sergeant Tobias Mei- nearly 2 years, but this was his first de- Yazzie was not known for his innate ster. ployment to Iraq. He arrived there only athletic ability. Instead, his coaches ROLAND CARROLL BARVELS 4 months ago as a counterintelligence and teammates remember him as a Mr. JOHNSON. Mr. President, I rise specialist. consummate team player who worked today to pay tribute to Roland Carroll Matthew was killed while serving his to improve his skills in every practice Barvels who died in Iraq on January 18, country in Operation Iraqi Freedom. and every game. He enlisted after the

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00076 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S111 terrible attacks of September 11, 2001, His role in the push for full voting President Bush as the vehicle that fully knowing that his country would rights for African Americans is well would provide affordable, easily soon be going to war abroad. His quiet known but bears repeating. In the accessed prescription drugs for seniors. demeanor and steadfast service is at spring of 1965, a national television au- The program has fallen far short of the core of what the American military dience was shocked by broadcasts of that goal so far. The outcries that I service is about: honor, duty, humility, State troopers and sheriff’s deputies have heard from pharmacists, bene- and loyalty. brutally repulsing voting rights pro- ficiaries, and health care providers His wife Michelle, children Chaynitta testers in Selma, AL. Hours later, Dr. over the past few weeks make clear and Cayden, and parents Clifford and King declared: ‘‘No American is with- that the implementation of the pro- Jeanette will be in all of our thoughts. out responsibility.’’ He went to Ala- gram has been a disaster. This program He and Michelle, who met at a high bama and led a march, under Federal has not provided either affordable or school dance, had been planning to protection, from Selma to the State easily accessed drugs to many Medi- renew their vows this spring. capital. The event garnered national care beneficiaries. Instead, it has pre- He was on his second tour of duty as support and provided momentum for sented many seniors and the disabled an infantryman in the 1st Brigade congressional passage of the Voting with frustration, confusion, expensive Combat Team, 101st Airborne Division. Rights Act later that year. medications, and sometimes no medi- We can never fully express our grati- Dr. King appreciated the blessings of cations at all. It is unacceptable for in- tude for our veterans’ service; I ask freedom; he wanted them for his peo- dividuals to go without lifesaving that we stop now to honor Sergeant ple, and for all people. We remember medications, yet this is what has been Yazzie and acknowledge his sacrifice, this Protestant minister’s eloquence happening across the country since and that of his family and friends, for and also his sense of spiritual mis- this program commenced. This situa- our Nation. sion—he was an ecumenical religious tion is an emergency, and Congress f leader who brought people of all faiths, needs to address it right away. LOCAL LAW ENFORCEMENT all races, together in mutual respect Since the beginning of January, I ENHANCEMENT ACT OF 2005 for one another. have received panicked phone calls As Taylor Branch, his biographer, from people in my State saying that Mr. SMITH. Mr. President, I rise put it: ‘‘His oratory fused the political they were unable to receive drugs that today to speak about the need for hate promise of equal votes with the spir- they have been routinely getting at crimes legislation. Each Congress, Sen- itual doctrine of equal souls.’’ their pharmacy every other month. ator KENNEDY and I introduce hate His belief in nonviolent protest con- Many calls were from people who could crimes legislation that would add new vinced those who listened to him that not receive essential drugs such as in- categories to current hate crimes law, here was the high road to vindicating sulin, antipsychotics, or immunosup- sending a signal that violence of any pressants for transplant patients. At kind is unacceptable in our society. the rights of Black people in this coun- try. It is a bitter fact that he lost his the same time as I was hearing from Likewise, each Congress I have come to people suffering from pain because the floor to highlight a separate hate life to violence—he was only 39 when they did not receive their pain medica- crime that has occurred in our coun- an assassin’s bullet cut him down in tions, I received press releases from the try. Memphis—and it makes us understand On October 4, 2002, Gwen Araujo was his great courage in taking on the bur- Centers for Medicare and Medicaid that killed by three men in Hayward, CA. den of leadership. expressed satisfaction with the launch Araujo was beaten up, tied, and then In officially celebrating the life of of the program and boasted of the mil- strangled. The apparent motivation for Dr. King, we celebrate the end of legal lions of participants in the program. this crime was that Araujo was a segregation and the many inroads we There may be millions participating in transgendered teen. have made against racism and dis- the program, but too many of them I believe that the Government’s first crimination. Of course, there is more cannot receive their drugs, and too duty is to defend its citizens, to defend we must do to make sure all Americans many pharmacists are unable to com- them against the harms that are born enjoy the blessings of freedom. He ply with the complicated regulations in out of hate. The Local Law Enforce- would tell us that, if he were here. He the program. CMS should be focusing ment Enhancement Act is a symbol would also insist that we continue on its efforts on addressing this emer- that can become substance. I believe in his way: with passion and with civil- gency rather than disseminating public that by passing this legislation and ity, calling on our fellow human beings relations messages. changing current law, we can change to act on their best instincts, not their All anyone needs to do is visit their hearts and minds as well. worst. local pharmacy in order to see the problems with the benefit firsthand. f Dr. King, who won the Nobel Peace Prize in 1964, is a model here and There, they are likely to see harried RECOGNIZING MARTIN LUTHER around the world—from China, and the pharmacists on the phone with Medi- KING DAY 1989 antigovernment protests in care or private drug plans. Chances are Mr. KYL. Mr. President, earlier this Tiananmen Square, to South Africa, high that they are on hold. There are week, our Nation celebrated Martin where apartheid rule gave way in 1990 often long waiting lines of people in Luther King Day. The Reverend Dr. without provoking the civil war many need of medications, sometimes in des- Martin Luther King, Jr., would have had feared. In encouraging the holding perate need, and there are customers been 77 years old on January 16. It was of free elections and the formation of being charged incorrectly for their pre- a day to reflect on the life of a man ad- institutions of civil society in faraway scriptions. Sometimes they are charged mired for the dream he dreamed for places today, we promote the idea that so much that they cannot afford it be- America, and for his words and deeds in Martin Luther King put forward so cause the costs exceed what they have pursuit of it. well: that the nonviolent settling of in the bank or what their credit limits He dreamed, as he famously said, differences among men is the bedrock will allow. Tragically, many of the ‘‘that one day this nation will rise up of democracy. most vulnerable beneficiaries have and live out the true meaning of its Let us all take inspiration from the been forced to walk out of the phar- creed: ‘We hold these truths to be self- King legacy this week, Mr. President, macies without their drugs. evident: that all men are created and every week. It is clear that, in many respects, the equal.’ ’’ Dr. King argued, in words that f plan and the contingency plans for im- stir the heart, that racial segregation plementation have failed. For instance, must end in the South and that Black MEDICARE PRESCRIPTION DRUG the drug plan automatically enrolled Americans must be granted their citi- BENEFIT IMPLEMENTATION millions of individuals eligible for both zenship rights throughout the land and Mr. FEINGOLD. Mr. President, on Medicare and Medicaid into drug plans, throughout our institutions: in edu- January 1, 2006, the administration and although these individuals were cation, in employment, in housing, and launched the Medicare prescription supposed to be notified of this, many in the voting booth. drug benefit, a program long touted by were not. Imagine the surprise when

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00077 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S112 CONGRESSIONAL RECORD — SENATE January 25, 2006 these people visited the pharmacy this SALMON RECOVERY that is a lot of money. Judge Redden, month thinking that they would re- Mr. CRAIG. Mr. President, today, as once again, second-guessed the region’s ceive their medications for the same you may know, Jim Connaughton, fish managers and made the decision to price they paid in December. Some of chairman of the White House Council increase spill this spring and summer. these dually eligible individuals were on Environmental Quality, called for a This will result in another cost to the victims of data glitches that resulted comprehensive and collaborative ap- ratepayers of approximately $60 mil- in the pharmacists being unable to proach to salmon recovery in the Pa- lion dollars. verify enrollment in any insurance, cific Northwest. While I may not agree Management of the river by the and they were told to pay for the full completely with Chairman courts is not management at all. I costs of their drugs. Some were Connaughton’s statement, we must would like to help the management charged the wrong amount even though stop ignoring what is going on. It is agencies—the appropriate managers of their insurance was verified. These about time that someone speaks out the river system—to succeed in their bills reached into the thousands of dol- about the reality of the situation in efforts to manage the river, in partner- lars at times. I was disheartened to the Northwest in regards to salmon re- ship with local, State, and tribal gov- learn that some of the beneficiaries covery. He proposed to end outdated ernments. paid for the drugs on their credit cards, hatchery programs and to stop harvest Why not trust the experts who have their only other option being to go levels and practices that impede recov- the scientific knowledge to make those without their medications. Those with ery of salmon listed under the Endan- decisions and help empower the region little income will be paying for these gered Species Act, ESA. He also out- to work together instead of giving up drugs for months, with interest, and lined a comprehensive collaborative and having the court systems make this is a sad burden for the Federal process to promote a shared goal and management decisions? How are we to Government to place on the neediest in responsibility of salmon recovery. As succeed in the future if we keep allow- society. ing others to make our decisions for While my office did its utmost to early as next week, the National Oce- us? help those who called, I wonder how anic and Atmospheric Administration’s When will this silliness stop? When many Wisconsinites did not call my of- fisheries service, NOAA Fisheries, will will the region take ownership and re- fice, did not have relatives to help launch a collaborative review of how sponsibility for the river? And when them, or were unable to get through to harvest and hatcheries are affecting will we work together as a region and the help lines that had waiting times of the recovery of ESA-listed salmon and up to 5 days. How many people are steelhead. get serious about salmon recovery? being forced into emergency rooms in There has been no clear direction in CEQ made the first step today. order to get their medications? How the past, and CEQ is taking the first I will work with other Members of many people are being injured because step to provide a meaningful direction. Congress to finally face these chal- of lack of medications? Have any We have sat back and idly watched lenges and to help provide direction deaths occurred as a result of the ex- while the region moved from injunc- and be more accountable to the public traordinary bureaucratic hurdles in tion to injunction and lawsuit to law- and to recovery of the species. If we are this program? The Centers for Medi- suit. In fact, over the past 2 years, two serious about recovery, we need to care and Medicaid Services needs to injunctions have been ordered and start acting serious and not avoid the find answers to these questions and ad- more lawsuits are being filed. This sit- tough questions. dress this crisis immediately. uation just fosters mistrust and the in- I would like to challenge my col- Fortunately, many State govern- ability to meet common goals and ob- leagues to come together in a bipar- ments, including Wisconsin’s, came to jectives. tisan way to help the region get back the aid of the public when the Federal Our past practices have focused on on track. Government would not by enacting keeping the fish in the river and in f emergency provisions. Now, these abundant numbers so that we can have our cake and eat it, too. In no other TRIBUTE TO WILLIAM B. States are depending on the Federal BONVILLIAN Government to return the favor and re- place in the world do we treat an ESA- imburse them for funds that were spent listed species this way. We don’t raise Mr. LIEBERMAN. Mr. President, I out of tight State budgets. To date, the bald eagles only to use their feathers rise today to express my profound grat- administration has refused to com- for our clothes, so why do we spend itude and heartfelt best wishes to a pensate States. I will work to try to hundreds of millions of dollars—each dear friend and dedicated American, make sure that Congress quickly ad- year—to recover the species, and then William B. Bonvillian, who has served dresses this problem, passes legisla- allow a majority of them to be killed as my legislative director and chief tion, and reimburses the States. through harvesting? The people who counsel since I first took office in the The health of our Nation’s citizens is pay for these absurd practices are the U.S. Senate in January 1989. It is truly not a partisan issue, and we all must Northwest ratepayers. a bittersweet occasion to bid farewell join together to assist the most needy. Here are some facts that the region this week to an outstanding and valued I voted against this program in 2003 should know. The total cost of fish staff member with whom I have worked and have since made numerous at- mitigation in the Northwest from 1978 for 17 years in this hallowed institution tempts to try to improve the program. to 2005 has been approximately $7 bil- that we both dearly cherish and re- Since mid-December, I have sent three lion. Fish costs now make up to 30 per- spect. I can only say that, as Bill em- letters to the administration, urging cent of the Bonneville Power Adminis- barks on his new venture as director of that the most pressing problems with tration’s power rates, 30 cents of every federal relations for the Massachusetts the Medicare drug benefit be addressed. dollar paid for BPA-managed power. Institute of Technology, MIT, my loss While these efforts were not supported Snake River Fall Chinook are the most is most surely MIT’s gain. by Republicans, I want to make new ef- impacted ESA-listed species in the Co- Bill came to my Senate office as an forts that I hope the other side of the lumbia River system. These fish drive accomplished and respected attorney aisle will support. We cannot sustain a BPA’s fish and wildlife program. Ap- who had previously served in the exec- great nation if we do not care for the proximately 40 percent to 60 percent of utive branch from 1977–1980 as Deputy elderly, the sick, the disabled, and the this species is harvested. Assistant Secretary of the U.S. Depart- homebound. These are the populations Last summer, Judge Redden ordered ment of Transportation, where he was that this drug plan is supposed to be a change in river operations that re- involved in major legislation relating serving, and I fear that they have been sulted in an approximately $75 million to transportation deregulation and dismally let down the past few weeks. dollar hit to the region’s ratepayers. funding issues. However, our long asso- Let us not wait any longer. Congress is This means that depending on how ciation actually goes back much fur- in session, we are in a position to come many fish survive, summer spill costs ther than that, to the early 1970s. Bill to their aid, and I hope that we will do between $225,000 and $3 million per fish, was my first intern when I was elected the right thing and quickly bring relief and consequently, ratepayers are left to the State Senate; we rode from New to the suffering. with the bill. Even at $225,000 per fish, Haven to the State Capitol in Hartford

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00078 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S113 in my old copper-colored Pinto several (2005); Intelligence Reform Act, P.L. been a pleasure to see Janis and Bill’s times a week after his classes at Yale 108–458 (2004); 9/11 Commission Act, P.L. sons, Raphael and Marcus, grow from Divinity School. Later, I hired him for 107–306; Homeland Security Depart- childhood into the fine young men they a summer position with our State Sen- ment Authorization, S. 2452 (2002); Es- are today. ate committee investigating State con- tablishment of the Quadrennial De- It has been a memorable journey. struction issues. After I was elected to fense Review, S. Amdt. 4156 to S. 1745 Through it all, Bill has maintained his my first term here in the U.S. Senate, (1996); Bosnia Intervention, S.J. Res. 44 clear vision of a better future for all, a I sought to rehire Bill, who was by then (1995); Gulf War Resolution, H.R. 2100 sense of humor, and calm demeanor in a partner at a national law firm work- (1991) the eye of any approaching storm. In ing on corporate, real estate, transpor- Environment, Conservation, and En- all of his interactions with staff, vis- tation, and administrative law mat- ergy Security—Vehicle and Fuel iting constituents, and other parties ters. I was beyond delighted when Bill Choices for America Act, S. 2025 (2005); with whom he has come in contact, he agreed to leave his partnership to reen- Climate Change Act, S. 1151 (2005) and has always given generously of his ter public service. prior climate bills dating back to 1991; time and talent. I could not have made Bill’s record of service in the U.S. Clean Air Act of 1990, S. 1630 (1990); a better choice for my legislative direc- Senate has been one of enormous dis- Conte Connecticut River National Fish tor than I did in 1989 when I asked Bill tinction. When I look back with pride and Wildlife Refuge Act, S. 821 (1991); to take on the challenges we have faced on the many legislative initiatives I Weir Farm National Historic Site, S. together. undertook with Bill’s advice and assist- 2059 (1990) I am proud to call Bill a trusted ad- ance, I recall with great admiration his Health and Social Programs—Amer- viser and lifelong friend. The office will determination, tenacity, and pas- ican Center for Cures, S. 2104 (2005); be a different place without him. My sionate involvement in crafting legisla- Bioshield II, S. 975 (2005) staff and I will miss him a great deal, tion. He built a stellar reputation on Education—Technology Talent, S. but we wish him success, health, and both sides of the aisle for his skill in 1549 (2001); 3R Act (No Child Left Be- happiness always. I sincerely thank nurturing innovative ideas and negoti- hind), S. 303 (2001); Federal Charter and congratulate Bill Bonvillian on his ating and advancing measures through School Assistance, S. 1513 (1994) outstanding, loyal, and dedicated serv- an often complex legislative process. Media and Values—Parental Choice ice to the U.S. Senate. Bill’s intuitive skills and strong lead- in Television Act (V-Chip), S. 632 (1995) f ership abilities have helped result in Government Reform—e-Government TRIBUTE TO ROGER WILLIAMS the successful passage of many crucial Act, S. 803 (2001); Congressional Ac- policy initiatives for which I have countability Act, S. 2071 (1994) Mr. HATCH. Mr. President. I rise fought. Bill has played a key role in Transportation—Intermodal Surface today to pay special tribute to Amer- formulating and enacting vitally im- Transportation Efficiency Act ica’s pre-eminent, piano-playing pa- portant legislative policy in the areas (ISTEA), P.L. 102–240 (1992). triot, Mr. Roger Williams. Roger is to of science and technology; economic We have been extremely fortunate to American music what the Grand Can- growth; innovation, research, and de- work with a person of Bill’s character yon is to the American landscape. velopment in the fields of defense, and caliber. He has graciously shared Roger has enjoyed decades of success manufacturing, health, and bioter- his wealth of knowledge and wise coun- and the title ‘‘Pianist to the Presi- rorism protection programs; and ensur- sel with legislative aides, fellows, and dents,’’ because he has had the honor ing America’s global competitiveness. other staff members. He helped us form to perform for eight of our Nation’s In addition, Bill’s extensive and tire- our innovative Legislative Fellows Commanders In Chief. In 2004, Roger less work has resulted in many other Program, in particular, which has celebrated his birthday alongside significant legislative victories in our helped us build a strong, substantive, Jimmy Carter because the two share years together, including those per- policy- and idea-oriented office. Under the exact same birth date. taining to environmental and wilder- Bill’s leadership as legislative director, Despite his advancing years, Roger’s ness protection; energy security; de- I have consistently had a professional ivory-tickling fingers continue to fense and foreign policy; health and so- staff of which I am very proud. I think thrill audiences. In November, he broke cial welfare; campaign finance reform; it is the equal of any on Capitol Hill. his own record for marathon piano- media safeguards for children; edu- Somehow, despite the long hours his playing with a 14-hour performance at cation; and transportation and our Na- work has involved, Bill finds the time Steinway Hall in New York City. The tion’s infrastructure. Bill also had a to nurture his abiding interest in an marathon was to raise awareness of the firm hand in the landmark law that led array of subjects, from art to history, importance of music education and to to the creation of the U.S. Department and this is part of what makes Bill so commemorate the 50th anniversary of of Homeland Security and new intel- very interesting to be around. On many his classic, ‘‘Autumn Leaves.’’ This ligence reform initiatives to ensure the occasions, Bill led our new staffers and song is the only piano instrumental protection of our citizens. His ability fellows on unique, memorable tours of that has ever reached No. 1 on the Bill- to forge a consensus on these and the Capitol, where he regaled us with board singles charts. countless other complex issues is un- his vast knowledge of the Capitol’s ar- According to Billboard Magazine, equaled. Bill’s influence has been felt chitecture, art collections, and histor- Roger is the greatest-selling pianist of throughout the halls of Congress, and ical vignettes of Congress and our de- all time, with 18 Gold and Platinum al- he has left a great legacy here. mocracy. bums to his credit. He is the first pian- I would like to highlight key legisla- And now to add to these many ac- ist to receive a star on the Hollywood tion, grouped by subject area, on which complishments, Bill has an exciting op- Walk of Fame, and is—so far—the only Bill and his legislative team have as- portunity to focus his efforts on recipient of the Steinway Lifetime sisted me over the years. I note that science and technology innovation and Achievement Award. Williams has many of these bills or parts of them policy, issues of deep concern to him played the music for soundtracks to have gone on to become laws: and of critical importance to our Na- films of three generations and in 2004 Economic Growth—National Innova- tion and the world. I have no doubt he released his 116th album. His records tion Act, S. 2109 (2005); National Nano- that Bill will distinguish himself in ‘‘Born Free,’’ ‘‘The Impossible Dream,’’ technology R&D Act, P.L. 108–153 this endeavor just as he has throughout ‘‘Almost Paradise,’’ and the theme (2003); R&D Doubling Act, S. 2046 (2000) his Senate career. from ‘‘Somewhere in Time’’ are only and predecessor bill, S. 1305 (1997); Indi- I sincerely thank Bill’s wife, Janis some of his hits, which span 4 decades. vidual Development Accounts, S. 2023 Ann Sposato, for her understanding of Not only a virtuoso, Roger is also a (2000); Enterprise Zone Act, S. 1032 the long hours and enormously de- man of great virtue. He is a champion (1991) manding schedule so often posed by the of music education in all schools and Defense, Homeland Security, and Senate legislative calendar, even as California Governor Arnold Foreign Policy—Rebuild the Army (in- they juggled the demands of parenting Schwarzenegger named him ‘‘Cham- creasing Army end-strength), S. 1397 and their public service careers. It has pion for Youth 2004.’’ Roger regularly

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00079 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S114 CONGRESSIONAL RECORD — SENATE January 25, 2006 donates his time and talent to chari- this Committee, and continues as an ney for Utah. He is a truly dedicated table efforts and non-profit organiza- ex-officio member of the Committee to public servant, strong leader, and spe- tions, including spots on the televised this day. cial friend. I want to wish him well as ‘‘Hour of Power’’ ministry since 1974. Paul’s legal career began when he he travels new pathways in life. I know I am grateful that I had the privilege graduated with the first class of the J. that he will continue to guide and en- of friendship with Roger Williams. He Reuben Clark Law School at Brigham rich the lives of those who have the is a great man, a superlative musician, Young University—BYU—in 1976. He privilege of working with him; and will and a true American. As a musician later went on to receive a masters’ de- remain steadfast in his commitment to myself, albeit one who is fairly low on gree in public administration from the enhancing and furthering the impor- the pecking order, I commend Roger Marriott School of Management at tant work of our judicial system. for his talent, hard work, and dedica- BYU. f tion to his craft. His music will con- Following graduation from law tinue to bless the lives of literally mil- school, Paul served 6 years as a trial TRIBUTE TO W. CLEON SKOUSEN lions for generations. lawyer in the Judge Advocate General Mr. HATCH. Mr. President. I rise f Corps of the United States Navy. In today to pay special tribute to a man I 1983, he enlisted with the Utah Army deeply admire, W. Cleon Skousen. TRIBUTE TO PAUL MICHAEL National Guard, Judge Advocate Cleon was a giant of a man. He was an WARNER Branch, where he rose to the rank of exceptionally bright scholar; a wonder- Mr. HATCH. Mr. President, I rise Colonel. He is currently serving as the ful husband, father, and grandfather; a today to pay tribute to a wonderful State Staff Judge Advocate, super- special friend; and a true patriot in man, brilliant lawyer, and dedicated vising a staff of 17 attorneys. He is also every sense of the word. public servant—Mr. Paul Michael War- the past president of the Utah National Sadly, Cleon recently passed away ner. Paul has been serving as the Guard Association. The leadership and leaving a tremendous void in the lives United States Attorney for the District work he has provided to the military of all who knew him. Cleon played a of Utah for almost 8 years, and will be has been invaluable as he has worked significant role in the political and stepping down this week to continue on cases not only important to our Na- governmental arena throughout Utah, his work in other capacities within the tion, but to the men and women who our Nation, and even the world. I can legal system. As he embarks on a new fight to preserve our freedoms. state without any equivocation today chapter of life, I wanted to take this Paul has also been involved in many that Cleon loved America. He truly opportunity to honor him for the lead- professional organizations including loved our country and its citizens. He ership he has provided, and commend serving as a Master of the Bench in the deeply respected our Founding Fathers, him for his dedication to our country’s American Inns of Court, and Chairman and he had the utmost reverence for legal system. of the Board of Visitors for the BYU the document that is the basis of all of Paul was nominated by President Law School. He has also been honored our freedoms—our Constitution. Bill Clinton on July 29, 1998 to be the by numerous military and civilian or- When I first met Cleon, I was a United States Attorney for Utah. He ganizations with awards including: the young, enthusiastic, go-getter who was unanimously confirmed by the United States Army’s Meritorious wanted to make a difference in our Na- United States Senate just one month Service Medal with two oak leaf clus- tion’s Capitol. Shortly before I an- later and by the end of August he had ters, the 2004 Honored Alumni of the nounced that I would be running for assumed the full duties of this impor- Year for the BYU Law School, the Utah the U.S. Senate in 1976 as a political tant position. After President George State Bar’s 2004 Dorothy Merrill Broth- novice and virtually unknown can- W. Bush took office, he recognized the ers Award for the Advancement of didate—Cleon was one of the first peo- tremendous leadership Mr. Warner was Women in the Legal Profession, the ple of political significance and sub- providing and reappointed him to this Federal Bar Association’s Distin- stance who agreed to meet with me and position. He was then reconfirmed once guished Service Award for 2003, and the discuss my candidacy. again by the United States Senate and NAACP’s 2002 Community Relations A few short years before this time, has continued to serve with strength Award for Civil Rights. Cleon had organized a nonprofit edu- and honor. Throughout my years of working cational foundation named ‘‘The Prior to being appointed United with Paul I have always been im- Freemen Institute,’’ to foster ‘‘con- States Attorney, Paul first joined this pressed with his utmost integrity and stitutionalist’’ principles including a office in 1989 and has served in various honesty. He has a strong desire to do drastic reduction in the size and scope positions including: First Assistant what is right. He has garnered the re- of the Federal Government, and a rev- United States Attorney, interim U.S. spect and admiration of the staff he erence for the true, unchanging nature Attorney, Violent and Hate Crimes Co- has led, and has served as a mentor and of our Constitution. I knew that he had ordinator, and the Chief of the Crimi- friend to many future leaders in Utah’s strongly held beliefs and I was very in- nal Division. For 7 years before joining legal community. He diligently strives terested in what he had to say. the U.S. Attorney’s Office, he worked to treat all parties with dignity and We found in each other at that first in the Utah Attorney General’s Office fairness, and his work has been an ex- meeting many areas of common ground as the Chief of the Litigation Division ample of his commitment to individual and a shared love for the principles and as an Associate Chief Deputy to rights and the rule of law. that make America the strongest bas- the Attorney General. His work within the legal community tion of freedom on Earth. Cleon quick- Throughout his many years of serv- has been lauded, but perhaps his most ly agreed to help, and throughout the ice within the criminal justice system, important accomplishments have oc- coming months he became a true Paul has established himself as an ef- curred within his family and neighbor- champion of my candidacy. He sent a fective leader in the fight against hood. Paul is a devoted husband to letter to 8,000 of his ‘‘friends’’ stating crime. He has always greatly valued Linda, and wonderful father to four that I was running for the Senate ‘‘for cohesive working relationships with children. He has been a friend to many the express purpose of waging a fight Federal, State, and local law enforce- from all walks of life, and all persua- to restore constitutional principles in ment personnel. I believe that without sions. His work has been an out- this country.’’ I was humbled by his exception, he has become a highly re- standing example of someone who has support, and I felt a true need to fulfill spected and trusted prosecutor and dedicated his life to helping others his expectations of me and to never let able administrator. while upholding the principles and him down. While serving in the Bush Adminis- ideals embodied in the foundation of From that first campaign, to every tration, Paul was appointed the Chair- our country the Constitution. day I have served in the U.S. Senate— man of U.S. Attorney General John I am grateful for the service Paul Cleon has been there for me, through Ashcroft’s Advisory Committee of U.S. Warner has rendered throughout his highs and lows—buoying me up, giving Attorneys. He also previously chaired years of public service—but most im- suggestions, discussing principles and the Subcommittee on Terrorism for portantly as the United States Attor- issues, and above all else being a true,

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00080 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S115 supportive friend. I can never overstate His words remind me so richly of 3’s Communication Systems-West on what his support has meant to me Cleon when Mr. Franklin stated: ‘‘I the 50th anniversary of that company’s throughout my years of service. have lived, Sir, a long time; and the arrival in Utah. A natural outgrowth of the success- longer I live, the more convincing I realize that many outside of the ful Freemen Institute was the founding proofs I see of this truth, that God gov- state of Utah might not have heard of of the National Center for Constitu- erns in the affairs of men. And if a L–3’s Communication Systems-West, tional Studies which Cleon started to sparrow cannot fall to the ground with- but no one can dispute the strategic further the study of our Founding Fa- out his notice, is it probable that an advantages that this company has pro- thers and the U.S. Constitution. He empire can rise without his aid? We vided to our Nation’s men and women traveled the globe and spoke to lit- have been assured, Sir, in the sacred in uniform. Much of the work that erally hundreds of thousands of people writings that ‘except the Lord build Communication Systems-West per- each year for many years to promote the house, they labor in vain that build forms is of a highly classified nature. the ideals of this center. it,’ I firmly believe this. . .’’ However, I can say that the real-time, The mission of the center was so And Cleon firmly believed it. He had world-wide dissemination of images aptly described by our Nation’s first a true testimony of our Savior’s works and information gathered by the U–2 President, George Washington, when he and our Father’s infinite wisdom and and our new unmanned aerial vehicles, said: ‘‘A primary object. . . should be love. He wrote of it. He testified of it. such as Global Hawk and the Predator, the education of our youth in the And he lived a life following their science of government. In a republic, is only possible because of the hard teachings. work by the people at Communication what species of knowledge can be The wonderful, strong leader General equally important? And what duty Systems-West. For example in 2001, George S. Patton once said: ‘‘It is fool- Communication Systems-West was more pressing than communicating it ish and wrong to mourn the men who to those who are to be the future awarded the Collier Award for pro- died. Rather we should thank God that guardians of the liberties of the coun- ducing the airborne integrated commu- such men lived.’’ nications system for the Global Hawk. try?’’ I don’t believe it is foolish to mourn Cleon took this mission very seri- As my colleagues may know, the Col- the loss of this great man—but I do ously and spent many hours each week lier Trophy is the National Aeronautic thank my Heavenly Father that W. educating and imparting his knowledge Associations’ highest honor for that of his years of study to people through- Cleon Skousen lived, and that he year’s greatest American aeronautical out our Nation, and even the world. He touched my life in so many ways. His achievement. cultivated friendships far and wide and example, passionate beliefs, and won- Other examples of Communication became to many the ‘‘Master Teacher.’’ derful mind will never be forgotten. His Systems-West outstanding work can be As we all know, Cleon was a prolific journey was full and brought rich re- found in the SATCOM Tri-Band Sat- author and writer. His books, ‘‘The wards to people throughout the world. ellite Earth Terminals and the ROVER First 2000 Years, The Making of Amer- I am grateful that I had the privilege III Remote Operations Video Enhanced ica,’’ and ‘‘The Five Thousand Year of knowing W. Cleon Skousen and Receiver system that are deployed with Leap’’ have been used by foundations, working with him. He is a great man, our forces today. As a stalwart division and in forums across America for many and true American. His life’s work has for L–3, the employees of Communica- years. His writings and words leave an touched literally thousands, and his tion Systems-West were honored in indelible legacy of knowledge and be- memory will live on through the won- 2005 to receive the L–3 Chairman’s liefs that have touched many people derful words and teachings he leaves Award for Best Operating Performance. and will continue to inspire and edu- behind. It is not an exaggeration to say that cate generations to come. Mr. President, I would like to close the technologies created and built by Many have yearned for even a morsel with a poem that I wrote for him: Communication Systems-West have of his years of study. He was learning, W. CLEON SKOUSEN won battles for the United States and, studying and writing until the end. I His life seemed like 2000 years equally as important, saved countless loved an account I recently read in the By those who feared the truth, American lives. To us who’ve loved him through our tears Deseret News from the Rev. Donald However, the leadership of Commu- Sills, a Baptist minister who became And even from our youth, This quiet, simple, gentle man, nication Systems-West’s 2,300 employ- close friends over many years with ees, including 1,000 engineers, is not Cleon. He spoke of his knowledge and Who taught us sacred things, He helped us all to understand limited to the battlefield. It is also study and recalled a time when he The memories of a thousand springs. found in their dedication to their com- found Cleon sitting on the steps of the Within this caring, pleasant soul munity. Communication Systems-West Jefferson Memorial in Washington, DC. God’s glory was refined, partners with Utah’s universities to as- When he asked Cleon what he was Experiences had made him whole sist in placing new graduates in prom- doing just sitting there, Cleon’s fitting For he had peace of mind, ising and creative careers. The com- response was, ‘‘I’m talking to Tom Jef- So many lives he touched each day pany is an active member of the Math- ferson.’’ Explaining holy things, Cleon had a strong desire for good In writings left along the way ematics, Engineering, and Science government, and a true love for our A treasure fit for kings. Achievement, or MESA, consortium. Savior Jesus Christ and our Heavenly He loved the prophets of the Lord, MESA, of course, provides resources to Father. He believed that our country The Founding Fathers too, aid minority and female students en- was founded on pure principles and And Israel’s most sacred word, tering technological fields of study. As that our Heavenly Father had a hand God’s children whom he knew, a contributor to the Ames and Chal- in guiding our historic and profound His precious Jewell, of greatest worth, lenger advanced education programs He’ll love eternally, for high school students interested in beginnings. He firmly believed, as He loved his family here on earth many believe, that God governs the af- technology sciences, Communication In loving majesty. Systems-West continues to bring a fairs of men. He was not shy about So many others one by one, sharing this belief with all who would bright future to the next generation of This giant among men, students. listen. The words he shared on this sub- He leaves us now, his work now done, ject were not unlike the words spoken We know we’ll meet him once again. Finally, Communication Systems- West also supports it home-town Na- by Benjamin Franklin as he arose on f the floor to speak at a particularly try- tional Guardsmen and Reservists by ing time during the Constitutional FIFTIETH ANNIVERSARY OF THE fully paying the salaries of its employ- Convention. He pled with his peers to FOUNDING OF L–3’S COMMUNICA- ees who have been activated to fight call upon the Father of them all for TION SYSTEMS-WEST the War on Terrorism. wisdom and guidance as they continued Mr. HATCH. Mr. President, today it Communication Systems-West and to contemplate and draft this most im- is an honor and a privilege to rise and its employees have been an integral portant document. congratulate the men and women of L– part of Utah for a half-century, and we

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00081 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S116 CONGRESSIONAL RECORD — SENATE January 25, 2006 all are immensely proud of the con- ly because they were from the Northeast, largest two-day rowing event. Rowing teams tributions they have made to our coun- and started producing oars. By the 1980 from the University of Vermont and try and our State. I congratulate them Olympics, composite oars—made of carbon Middlebury College will be among the com- fiber and epoxies and glues—were standard, petitors, as will brothers Dick and Pete and wish them 50 more years of success thanks to the work of the Dreissigacker Dreissigacker from Morrisville. and prosperity in the great State of boys. The Dreissigackers, both former Olympics Utah. The company makes ‘‘sweep’’ oars, oars for rowers, have been competing in the Head of f sculling and oars for a small niche of rowers the Charles since 1978. In a way, they’ll be in who specialize in trans-Atlantic crossings. the majority of boats on the river, given that CONCEPT2 Oars range in price from about $200 to more most of the competitors will be using oars Mr. LEAHY. Mr. President, like most than $400 each, and there are custom orders, made by the Dreissigackers’ Concept2 com- blade and shaft repairs and stylized custom pany. ‘‘It’s pretty much the most prestigious Americans, I start off the year with my fall race,’’ said Sarah Tousignant, women’s new year’s resolution to work harder painting jobs that keep the company’s em- ployees busy. Dick says there are two other team president of UVM rowing. ‘‘It’s the race at getting in shape. As always, my first companies that are viewed as competitors that everybody looks forward to and holds in stop is the Concept2 rowing machine in with the Dreissigackers, but Concept2 con- high regard.’’ The Head of the Charles was the Senate gym. I have used it for trols about two-thirds of the world’s com- first held Oct. 16, 1965. As many as 300,000 years, and always think of Vermont petitive oar market. spectators are expected to be on hand for the when I do. In 1991, the Dreissigackers struck again, weekend. The rowing machines are made in changing the shape of the oar blades to a big- f Vermont, and last fall the Burlington ger, ‘‘hatchet’’ style, a change that exploded through the rowing scene. At the 1992 Olym- ADDITIONAL STATEMENTS Free Press had an excellent article pics in Barcelona, Spain, said Peter, ‘‘boats about the company and its founders. I were on the water, changing their blades to ask that a copy of the article be print- our style.’’ There was some discussion of CHINESE LUNAR NEW YEAR ed in the RECORD. banning the bigger blade, which was more ef- ∑ Mrs. BOXER. Mr. President, I take There being no objection, the mate- ficient and more effective, but the style this opportunity to recognize the Chi- rial was ordered to be printed in the quickly became the sport’s standard. Two nese Lunar New Year. 2006 is the Year RECORD, as follows: Middlebury teams and a University of of the Dog. Vermont women’s team will be using The Chinese calendar is based on the [From the Free Press, Oct. 14, 2005] Concept2 oars when they compete at the cycles of the sun and the moon, and the WHAT A CONCEPT Head of the Charles next weekend. ‘‘If 75 or Chinese Lunar New Year is the most (By Matt Crawford) 80 percent of the teams at the Head of the Charles are using our oars,’’ said Dick, ‘‘then important of Chinese festivals. Cele- MORRISVILLE.—Peter and Dick almost 100 percent of those teams will have bration begins on the first day of the Dreissigacker will be on Boston’s Charles trained on our indoor trainers. They’re pret- first moon of the lunar calendar and River next weekend, rowing their way to- ty much the standard.’’ ends on the full moon 15 days later, ward the finish line in the annual Head of The Dreissigackers started making the in- with the Lantern Festival. In order to the Charles regatta. door machines in the mid-1980s, the first The Dreissigacker brothers are two mem- prepare for the new year, families per- versions little more than bike wheels and form several rituals to cleanse the bers of an eight-man team called the Motley chains. Now the machines—their fourth Rowing Club—a team that captured third home and the spirit, to sweep away version—come equipped with computers to misfortune and to welcome in the new place in its division during last year’s race. monitor an athlete’s performance and sell If the Motley team is beaten again, part of for $850. There are hundreds of them in the year with good luck, health, happiness the blame can be placed squarely on the Morrisville factory, stacked up and awaiting and prosperity. broad shoulders of the Dreissigackers. the start of the Christmas buying season. The Chinese lunar calendar is associ- What Nike is to running, what Orvis is to The first indoor rowing machines were ated with a 12-year animal zodiac. Ac- fly-fishing, what Burton is to snowboarding, called rowing ergometers, or ‘‘Ergs,’’ for cording to ancient Chinese legend, Bud- Concept2 is to rowing. Concept2 is a Morris- short, and the Dreissigackers even developed dha asked all the animals to meet him ville-based company that employs 55 people, a formula that allows the machines to meas- on the Chinese Lunar New Year. and it is run and owned by Misters Peter and ure rowing ability—a number that the row- Dick Dreissigacker. The company leads the Twelve animals came, and Buddha re- ing world now refers to as ‘‘Erg scores.’’ ‘‘It’s warded each animal by naming a year world in producing oars used by crews and kind of like an athletic SAT score,’’ said sculling teams and controls a significant Dick, who attributes Peter’s higher Erg after each one. The 12 animals—Rat, portion of the global indoor rowing machine score to the fact that he’s four years young- Ox, Tiger, Rabbit, Dragon, Snake, market, too. ‘‘Their products are found er, even though Dick rows almost every day Horse, Sheep, Monkey, Rooster, Dog around the world,’’ said Alex Machi, director of the summer on a lake at his cottage in Al- and Pig—represent a cyclical concept of rowing at Middlebury College. ‘‘They eas- bany. There’s a gym for Concept2 employees of time. He told each animal that the ily dominate the oar manufacturing busi- at the company’s headquarters, and yes, it is people born in their year would inherit ness.’’ filled with rowing machines. No longer in the some of the personality traits of that How two Connecticut brothers maneuvered barn, the company moved in 1984 to a more their internationally successful company animal. It is said that those born in the industrial location, not far from the center Year of the Dog tend to be loyal, kind, into the center of the rowing universe from of Morrisville. The factory today is more a small town in northern Vermont is a re- than 45,000 square feet. and generous. markable tale, one that continues to evolve Sarah Tousignant, a senior at the Univer- America is rich with the cultural tra- on rivers and ponds and indoor gyms around sity of Vermont and president of the school’s ditions of many countries. In Cali- the world . . . women’s rowing team, knows how important fornia, the Chinese-American commu- ‘‘The challenge,’’ said Peter, ‘‘is trying to Concept2’s Erg machines are. The Cat- nity plays a vibrant and important continue to improve on what we’ve got.’’ amounts train six days a week on the part of our State’s history. Celebrating Dick Dreissigacker, now 58, was a member Lamoille River using Dreissigacker oars. the Chinese Lunar New Year allows us of the 1972 U.S. Olympic Rowing Team and a They’ll soon move inside for the winter and Brown University product. He drifted out to to embrace this significant and most shift onto Ergs. ‘‘We just ordered 12 new Ergs important cultural festival of the Chi- California to take a rowing coaching posi- from them,’’ she said. tion at Stanford, a school Peter, who’s four Most of the Head of the Charles athletes nese calendar. years younger, was attending. will be using Dreissigacker oars, and nearly I hope that the Chinese Lunar New Dick was looking for a ‘‘secret weapon’’ all will have trained and honed their skills Year brings good health, happiness, after the 1972 Olympics and began to explore on Dreissigacker indoor machines. So even if peace and prosperity to all. I give my ways to improve oars, which had been craft- the Motley crew team gets beaten to the fin- very best wishes for an auspicious New ed out of wood pretty much since humans ish line on the Charles River next weekend, Year.∑ started rowing boats through water. ‘‘There the Dreissigackers still win. With the Boston f were quite a few companies making com- Red Sox out of baseball’s playoffs, the eyes posite boats,’’ said Peter, ‘‘but nobody was of the sporting world turn to Boston this TRIBUTE TO THE NORTHERN KEN- making oars.’’ month for one thing: The Head of the Charles TUCKY UNIVERSITY CHEER- By 1976, the Dreissigackers had built a pro- Regatta. LEADERS totype of a composite oar and began making A stretch? Consider that more than 7,000 them in the back of a bread truck. They athletes from around the globe will compete ∑ Mr. BUNNING. Mr. President, I pay looked at places around the country and de- in 24 race events in the 41st annual Head of tribute to the Northern Kentucky Uni- cided to buy an old barn in Morrisville, part- the Charles on Oct. 22–23. It is the world’s versity cheerleaders. The squad was

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00082 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S117 named the national champions in the years. Under the direction today of Dr. TRIBUTE TO DOUGLAS W. BOOK Universal Cheerleaders Association- Darryl Roland, these dedicated men ∑ Mr. GRASSLEY. Mr. President, I was sponsored competition earlier this and women have helped the lives of saddened to learn of the sudden passing year. countless children. During his time of of Forest City Chief of Police Douglas The Northern Kentucky University overseeing the Cathedral Choir School, ‘‘Doug’’ Book on January 13. Doug cheerleading squad was awarded their Dr. Roland has served as a shining ex- leaves behind a remarkable career in first national title. The title was in the ample of what is possible when good law enforcement that spans over three small unit coed category of NCAA Divi- and caring adults decide to make a decades. He has had an immense im- sion II competition. They captured this positive difference in the lives of chil- pact not only in his community of For- championship at Walt Disney World in dren. est City but throughout the entire Orlando, FL on January 14, 2006. I would especially like to acknowl- State of Iowa. The citizens of northern Kentucky edge the commitment and enthusiasm Doug Book began his career as a full- are proud to have these national that the individual members of the time patrolman in 1968 and quickly cheerleading champs living and learn- choir have shown during their time rose amongst the ranks of his depart- ing in their community. Their example with the choir. These outstanding ment until he was appointed chief of of hard work and determination should young people have made a personal police in 1973. He served faithfully in be followed by all in the Common- commitment to themselves and to this capacity until his passing. In addi- wealth. their communities to challenge them- tion to his dedicated service to his I congratulate the members of the selves and try their best to live up to community, Doug also served Iowa as squad for their success. I also want to the high standards of the Cathedral the head of the North Central Iowa congratulate their coaches, along with Choir School. The rehearsals and after- Narcotics Task Force for the past 10 their peers, faculty, administrators, school music training are done with a years. Doug also served as chairman of and parents for their support and sac- sense of love for artistic expression. It the Iowa Law Enforcement Academy rifices they have made to help them takes a special type of person to share Board and as president of the Iowa As- meet their achievements and dreams. that gift with the rest of us. sociation of Chiefs of Police and Peace They all represent Kentucky honor- The faculty and students of the Ca- Officers. ably.∑ thedral Choir School are to be com- Doug’s constant support and guid- f mended and applauded for their ex- ance for his fellow officers did not stop CATHEDRAL CHOIR SCHOOL OF traordinary efforts. Their dedication at Iowa’s borders but spilled over to DELAWARE and love of music continues to serve as other departments in New York City. ∑ Mr. CARPER. Mr. President, today an example of what is possible when Chief Book joined a group of Iowa po- I rise to honor an outstanding group of young people are given the opportunity lice officers as part of a critical inci- young choir members who have to follow their dreams. All of Delaware dent stress management team that ∑ brought joy and musical harmony to is proud of them. helped New York City police officers countless people in Delaware and cope with the aftermath of the Sep- around the world. f tember 11 terrorist attacks. The Cathedral Choir School of Dela- One of Doug’s colleagues described ware has been chosen to perform on HONORING THE LIFE OF MAURICE him simply as a ‘‘good guy, a good cop, January 25, 2006, for an audience at the GUERRY and a good friend.’’ His friends and White House that will include First family should be very proud of what he ∑ Mr. CRAPO. Mr. President, this past Lady Laura Bush. They will also be has done for so many people. Chief December Idaho unexpectedly lost a presented with the Coming Up Taller Book’s devotion, hard work, and dedi- generous and gracious man who will be ∑ Award. This award is the Nation’s cation to duty will be sorely missed. missed terribly by all who had the highest honor for afterschool and out- pleasure of experiencing his welcoming f of-school programs that use arts and spirit and warm heart. humanities to enrich the lives of chil- 40 YEARS OF EXEMPLARY dren. Created in 1998, this awards pro- Maurice was a sheep rancher from FEDERAL SERVICE gram is a project of the President’s Three Creek, ID, who was known for ∑ Mr. INOUYE. Mr. President, on Feb- Committee on the Arts and the Hu- his ready smile, charm and unequivocal ruary 3, 2006, Mr. Ray H. Jyo, Deputy manities in partnership with Institute love for his wife, family and the land District Engineer for Programs and of Museum and Library Services, the on which he made his livelihood. I had Project Management/Chief, Programs National Endowment for the Arts and the distinct privilege of working with and Project Management Division, the National Endowment for the Hu- him a number of times on collaborative Honolulu Engineer District, HED, U.S. manities. land management endeavors and re- Army Corps of Engineers, will retire Cathedral Choir School has had an member well that he made an extraor- from the Government following nearly enormous positive impact on the lives dinary effort to get those who thought 40 years of exemplary service to Ha- of the students who pass through its themselves at odds to find common waii, the Pacific Region, the military halls. The more than 50 students, rang- ground and work together. He saw the and the Nation. ing in age from 7 to 17, who attend the wisdom and value of this approach and Born and raised in Hawaii, Mr. Jyo is school are encouraged to learn the en- was respected for it. a registered professional engineer and a during values of discipline, responsi- With his sheep dog keeping a sharp member of the American Society of bility, leadership and teamwork. eye from the back of his truck, Mau- Military Engineers, who served in nu- With more than 800 alumni since its rice diligently cared for his land and merous engineering and executive inception in 1883, the Cathedral choir was known to carry candy with him to management positions in the U.S. school has had a positive impact on share in case he met someone on one of Army. He holds a bachelor’s of science both the lives of the students who have the remote roads near his ranch. He degree in civil engineering from the had the privilege of participating in and his wife, Marlene, would put to- University of Minnesota. He has at- this choir school and the lives of those gether a dinner party for dozens at the tended the Senior Officials in National around them. By training Delaware’s drop of a hat, welcoming strangers Security Program, the John F. Ken- young people in life skills and commu- with open arms. He was especially nedy School of Government, Harvard nity involvement, the Cathedral Choir close to his fellow Basque friends. University and the Emerging Issues in School has consistently enhanced the Maurice had a soul of generosity, Public Management Training at the lives of all that it touches. gentleness, and wisdom and knew the Brookings Institute. I would like to acknowledge the hard value of hard, honest work. This legacy Over the course of his 40-year career, work and dedication that the paid staff is his gift and it lives on in his family Mr. Jyo has served with pride and dis- and volunteers of the Cathedral Choir and friends. My prayers are with them tinction. I have witnessed his steadfast School have demonstrated over the during this difficult time.∑ dedication and hard work to improve

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00083 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S118 CONGRESSIONAL RECORD — SENATE January 25, 2006 and safeguard the lives of our citizens goals to provide responsive service and Prominent projects on the island of and servicemembers. engineering and construction excel- Oahu include the construction and ren- Mr. Jyo has demonstrated the high- lence to POD. The Engineering and ovation of military housing and im- est values and ideals in his many ac- Construction Directorate was the larg- proving facilities at Hickam AFB, complishments throughout his distin- est directorate at POD and included Wheeler, Schofield, Aliamanu, and guished Federal service. Upon retire- the operational elements of design, Fort Shafter. In 1989, HED began the ment, he will have served the Federal construction, engineering services, en- design of the $110 million Hale Koa— Government for 39 years, 11 months vironmental, cost engineering as well Phase 2 recreational hotel at Fort and 13 days. He has succeeded at every as design and construction quality as- DeRussy in Waikiki. Upon its comple- job position in his career, which covers surance. Mr. Jyo maintained technical tion in 1994, the Fort DeRussy area was every facet of the design/construction/ excellence by pioneering innovative de- transformed into a visually pleasing management continuum of the con- sign and procurement tools, such as enhancement of Waikiki for the benefit struction industry. He has used his the construction indefinite delivery-in- of the military and civilian commu- considerable leadership and manage- definite quantity contracting for Tri- nities. ment skills on behalf of the Army pler Army Medical Center, later to be His lifelong contributions and Corps and the Nation to achieve much applied across the division programs, achievements to the Army are consid- success. and such technical tools as the Com- erable. His recognized leadership and As the chief of the Far East Surveil- puter Aided Drafting and Design, ability to forge lasting relationships lance Branch from 1982 to 1986, Mr. Jyo CADD, and Geographical Information and his clear vision describes an out- pioneered the regionalization concept Systems (GIS). By combining the tech- standing individual who has dedicated at the Pacific Ocean Division, POD. His nical elements of design, engineering his life to public service. Ray Jyo’s dis- program managers monitored engineer- and construction quality assurance tinguished career may be coming to an ing, design and construction efforts at into one division, he unified the qual- end, but his loyalty to the goals of the the Japan and Far East Districts with ity function and created ‘‘life cycle’’ Army and the Nation will carry on. On the focus of providing valued-added accountability for a design/construc- behalf of a grateful Nation, thank you service to the districts and our re- tion continuum. Mr. Jyo truly was an for your service and for a job well gional partners with the Army and Air innovator and made POD a better orga- done.∑ Force. Mr. Jyo’s branch became the nization. f ‘‘strike’’ arm of POD’s rapid deploy- Since 1997, Mr. Jyo has been the dep- TRIBUTE TO PAMELA ALTMEYER- ment force which led and provided uty district engineer for programs and ALVEY hands-on project management and project management for the Honolulu ∑ technical assistance to the districts. District. He has continued to utilize Mr. LUGAR. Mr. President, I rise His teams would deploy to the districts his leadership skills to accomplish con- today to congratulate a distinguished to support them during times of peak siderable successes on their behalf. He Hoosier, Mrs. Pamela Altmeyer of Indi- anapolis, IN, who this year celebrates workload or during crisis situations has executed programs and projects in 25 years of leadership at Gleaners Food making them invaluable to District op- a team-oriented matrixed organization. He has led the effort to incorporate a Bank of Central Indiana. erations. He also had the responsibility Mrs. Altmeyer is a 1964 graduate of quality management system into the of keeping U.S. Army, Pacific and Pa- Ben Davis High School in Indianapolis district along with International Orga- cific Air Forces informed and involved and studied at Vincennes University, nization for Standardization 9001 cer- in our large construction program the University of Indianapolis, and the tification. He has instituted a learning overseas. Many of the principles and University of Wisconsin at Madison. organization with a system of After policies he pioneered are still being fol- She has 35 years of experience in man- Action Reviews and Lessons-Learned. lowed at POD today. During this time- aging nonprofit organizations and is a He is successfully leading the district frame, Mr. Jyo led by example when he valuable contributor as a member of deployed to Ft. Drum for 2 months to through its biggest construction pro- numerous boards of important commu- lead the planning and programming ef- gram with highly visible programs nity associations. forts to provide quality facilities for such as the Stryker Brigade Combat Gleaners Food Bank was formed in the 10th Mountain Division. Team and C–17 implementation in Ha- 1980 in a garage in Indianapolis and, During his tenure as the chief, Tech- waii. Under his leadership, the Hono- under the leadership of Mrs. Altmeyer nical Engineering Division, 1986 to 1987, lulu District has achieved the highest and other dedicated individuals, has Mr. Jyo provided quality technical customer satisfaction rating in its his- grown into the largest nonprofit pro- services to all the districts in POD. In tory. vider of assistance to needy families in addition, he instituted the concept of Mr. Jyo is a recognized representa- our State. Over the last 12 months, life-cycle technical services by sending tive of the Corps in the Pacific Region. Gleaners has distributed nearly 11 mil- his technical reviewers to the field to He has established lasting relation- lion pounds of food and other critical assist the construction offices in com- ships with the Hawaii Congressional grocery products to 400 hunger relief ing up with viable solutions to sticky Delegation as well as the Governors of charities in 29 central Indiana coun- construction problems. This formed the Guam and the Commonwealth of the ties. Since inception Gleaners has dis- basis of the latter consolidation of the Northern Marianas Islands. Mr. Jyo’s tributed over 173 million pounds of technical review and quality assurance efforts have made lasting impacts on product to Hoosiers in their time of staffs at POD. Responsive to the cus- the abilities of our service men and need. tomer, Mr. Jyo has consistently strived women to fight the global war on ter- I have had the joy of working closely to provide high-quality technical serv- ror, bolster the region’s economy while with Mrs. Altmeyer and Gleaners Food ices and products in a responsive man- ardently protecting the environment. Bank in procuring resources for needy ner. Mr. Jyo played an instrumental role Hoosiers. I believe that, both as a Na- As the chief of Military Division, Mr. in expanding the civil works and cap- tion and as individuals, we can do more Jyo led the planning, engineering, and ital improvement programs to Guam, to improve the lives of those in need. I construction of the military program American Samoa, Kwajalein, and the am deeply grateful for Mrs. Altmeyer’s POD-wide. Through his leadership and Commonwealth of the Northern Mar- important service and leadership as experience, POD has become the proven iana Islands. In addition, Mr. Jyo well as for the remarkable work done leader in project execution and accom- oversaw the construction of the by her colleagues at Gleaners Food plishment. Alenaio Stream Flood Control project Bank of Central Indiana.∑ As the acting director of Engineering in Hilo, HI, which was completed in f and Construction Directorate, Mr. Jyo 1997 at a cost of $16 million. During the forged a solid link between engineer- storm of November 2000, the improve- BIRTH OF KATHERINE RILEY ing, design, and construction quality. ments prevented approximately $13 LUGAR He brought all of POD’s technical as- million in damages and remains fully ∑ Mr. LUGAR. Mr. President, I am sets together to work toward common functional today. pleased to share the news of the birth

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00084 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S119 of Katherine Riley Lugar on December Tajikistan, Ukraine and Uzbekistan with the Internal Revenue Service, Department of the 28, 2005, at Sibley Memorial Hospital in 1974 Trade Act’s freedom of emigration pro- Treasury, transmitting, pursuant to law, the Washington, DC. Katherine was a visions, as required under the Jackson-Vanik report of a rule entitled ‘‘Japanese YKs’’ Amendment; to the Committee on Finance. (Rev. Rul. 2006–3) received on January 4, 2006; healthy 8 pounds, 1 ounce at birth. Her EC–5223. A communication from the Presi- to the Committee on Finance. parents are David Riley Lugar, son of dent of the United States of America, trans- EC–5235. A communication from the Acting Richard and Charlene Lugar; and his mitting, pursuant to law, a report relative to Chief, Publications and Regulations Branch, wife, Katherine Graham Lugar, daugh- entering a free trade agreement with the Re- Internal Revenue Service, Department of the ter of Lawrence and Jane Graham. public of Peru; to the Committee on Finance. Treasury, transmitting, pursuant to law, the Katherine was born at 4:20 p.m. and in EC–5224. A communication from the In- report of a rule entitled ‘‘TD: Refunding Reg- spector General, Department of the Treas- ulations under Section 141’’ ((RIN1545–AU98) the next few hours was joined in the ury, transmitting, the report of a draft bill (TD9234)) received on January 4, 2006; to the hospital delivery room by Jane Gra- entitled ‘‘Enhanced Protection of the Inter- Committee on Finance. ham, Richard and Charlene Lugar, and nal Revenue Service and Its Employees Act EC–5236. A communication from the Acting David’s brother, John Lugar with his of 2005’’; to the Committee on Finance. Chief, Publications and Regulations Branch, wife, Kelly. We shared together a won- EC–5225. A communication from the Sec- Internal Revenue Service, Department of the derful experience. On the next day, retary of Labor, transmitting, pursuant to Treasury, transmitting, pursuant to law, the report of a rule entitled ‘‘Section 1374 Effec- Katherine met her sister, Elizabeth law, a report relative to the impact of the Andean Trade Preference Act on U.S. trade tive Dates’’ ((RIN1545–BD95) (TD9236)) re- Merrell Lugar, who was born at Sibley and employment from 2003 to 2004; to the ceived on January 4, 2006; to the Committee Memorial Hospital on May 25, 2004. The Committee on Finance. on Finance. two girls and their parents are now EC–5226. A communication from the Regu- EC–5237. A communication from the Acting safe and healthy in their McLean, VA, lations Officer, Office of Disability and In- Chief, Publications and Regulations Branch, residence. come Security Programs, Social Security Internal Revenue Service, Department of the Treasury, transmitting, pursuant to law, the Katherine and David were married on Administration, transmitting, pursuant to law, the report of a rule entitled ‘‘Medicare report of a rule entitled ‘‘Guidance under June 3, 2000, in St. David’s Episcopal Part D Subsidies’’ (RIN0960–AG03) received Sec. 7874 for Determining Ownership by Church in Austin, TX. Katherine, a on January 4, 2006; to the Committee on Fi- Former Shareholders or Partners of Domes- graduate of the University of Colorado, nance. tic Entities’’ ((RIN1545–BE94) (TD9238)) re- is Vice President of Federal Govern- EC–5227. A communication from the Acting ceived on January 4, 2006; to the Committee ment Relations for St. Paul Travelers. Chief, Publications and Regulations Branch, on Finance. Internal Revenue Service, Department of the EC–5238. A communication from the Acting David Lugar, who came with us to Chief, Publications and Regulations Branch, Washington, along with his three Treasury, transmitting, pursuant to law, the report of a rule entitled ‘‘Annual Cumulative Internal Revenue Service, Department of the brothers, 29 years ago, graduated from List of Changes in Plan Qualification Re- Treasury, transmitting, pursuant to law, the Langley High School in McLean, VA, quirements’’ (Notice 2005–101) received on report of a rule entitled ‘‘Acceptance Agent and Indiana University. He is a partner January 4, 2006; to the Committee on Fi- Revenue Procedure’’ (Rev. Proc. 2006–10) re- of Quinn Gillespie & Associates. Both nance. ceived on January 4, 2006; to the Committee Katherine and David are well known to EC–5228. A communication from the Acting on Finance. Chief, Publications and Regulations Branch, EC–5239. A communication from the Acting many of our colleagues and their staff Chief, Publications and Regulations Branch, members. We know that you will un- Internal Revenue Service, Department of the Treasury, transmitting, pursuant to law, the Internal Revenue Service, Department of the derstand our excitement and our joy report of a rule entitled ‘‘Consent Procedures Treasury, transmitting, pursuant to law, the that they and we have been given this for Changes Under Simplified Service Cost report of a rule entitled ‘‘Internal Revenue divine blessing and responsibility for a and Simplified Production Methods’’ (Rev. Code section 482: Allocation of Income and glorious new chapter in our lives.∑ Proc. 2006–11) received on January 4, 2006; to Deductions Among Taxpayers’’ (Rev. Proc. the Committee on Finance. 2006–9) received on January 4, 2006; to the f EC–5229. A communication from the Acting Committee on Finance. Chief, Publications and Regulations Branch, EC–5240. A communication from the Acting MESSAGES FROM THE PRESIDENT Chief, Publications and Regulations Branch, Internal Revenue Service, Department of the Internal Revenue Service, Department of the Messages from the President of the Treasury, transmitting, pursuant to law, the Treasury, transmitting, pursuant to law, the United States were communicated to report of a rule entitled ‘‘Annual Update of report of a rule entitled ‘‘Reporting Require- the Senate by Ms. Evans, one of his No-Rule Rev. Proc.’’ (Rev. Proc. 20006–3) re- ments under Temporary Income Tax Regula- ceived on January 4, 2006; to the Committee secretaries. tions on Conversions to Roth IRAs’’ (Rev. on Finance. f Proc. 2006–13) received on January 4, 2006; to EC–5230. A communication from the Acting the Committee on Finance. EXECUTIVE MESSAGES REFERRED Chief, Publications and Regulations Branch, EC–5241. A communication from the Acting Internal Revenue Service, Department of the Chief, Publications and Regulations Branch, As in executive session the Presiding Treasury, transmitting, pursuant to law, the Officer laid before the Senate messages Internal Revenue Service, Department of the report of a rule entitled ‘‘Bureau of Labor Treasury, transmitting, pursuant to law, the from the President of the United Statistics Price Indexes for Department report of a rule entitled ‘‘Automatic Ac- States submitting sundry nominations Stores—October 2005’’ (Rev. Rul. 2005–79) re- counting Method Change Procedures for In- which were referred to the appropriate ceived on January 4, 2006; to the Committee tangibles’’ (Rev. Proc. 2006–12) received on committees. on Finance. January 4, 2006; to the Committee on Fi- (The nominations received today are EC–5231. A communication from the Acting nance. Chief, Publications and Regulations Branch, printed at the end of the Senate pro- EC–5242. A communication from the Acting Internal Revenue Service, Department of the Chief, Publications and Regulations Branch, ceedings.) Treasury, transmitting, pursuant to law, the Internal Revenue Service, Department of the f report of a rule entitled ‘‘RIC Commodity Treasury, transmitting, pursuant to law, the Swaps’’ (Rev. Rul. 2006–1) received on Janu- report of a rule entitled ‘‘Updating Rev. EXECUTIVE AND OTHER ary 4, 2006; to the Committee on Finance. Proc. 2006–7 and 2005–1’’ (Rev. Proc. 2006–7) COMMUNICATIONS EC–5232. A communication from the Acting received on January 4, 2006; to the Com- The following communications were Chief, Publications and Regulations Branch, mittee on Finance. Internal Revenue Service, Department of the laid before the Senate, together with EC–5243. A communication from the Acting Treasury, transmitting, pursuant to law, the Chief, Publications and Regulations Branch, accompanying papers, reports, and doc- report of a rule entitled ‘‘Applicable Federal Internal Revenue Service, Department of the uments, and were referred as indicated: Rates—January 2006’’ (Rev. Rul. 2006–4) re- Treasury, transmitting, pursuant to law, the EC–5221. A communication from the Com- ceived on January 4, 2006; to the Committee report of a rule entitled ‘‘Extension of Tran- missioner, Social Security Administration, on Finance. sition Relief for Certain Partnerships and transmitting, pursuant to law, the Adminis- EC–5233. A communication from the Acting Other Pass-Thru Entities under section 470’’ tration’s Report on Fiscal Year 2005 Com- Chief, Publications and Regulations Branch, (Notice 2006–2) received on January 4, 2006; to petitive Sourcing Efforts; to the Committee Internal Revenue Service, Department of the the Committee on Finance. on Finance. Treasury, transmitting, pursuant to law, the EC–5244. A communication from the Acting EC–5222. A communication from the Assist- report of a rule entitled ‘‘Revocation of Rev. Chief, Publications and Regulations Branch, ant Secretary, Legislative Affairs, Depart- Rul. 74–503’’ (Rev. Rul. 2006–2) received on Internal Revenue Service, Department of the ment of State, transmitting, pursuant to January 4, 2006; to the Committee on Fi- Treasury, transmitting, pursuant to law, the law, the semi-annual report on the continued nance. report of a rule entitled ‘‘Information Re- compliance of Azerbaijan, Kazakhstan, EC–5234. A communication from the Acting porting for Distributions with Respect to Se- Moldova, the Russian Federation, Chief, Publications and Regulations Branch, curities Issued by Foreign Corporations’’

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00085 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S120 CONGRESSIONAL RECORD — SENATE January 25, 2006 (Notice 2006–3) received on January 4, 2006; to Bureau, Federal Communications Commis- Joints in Continuous Welded Rail ‘‘ the Committee on Finance. sion, transmitting, pursuant to law, the re- (RIN2130–AB71) received on January 3, 2006; EC–5245. A communication from the Acting port of a rule entitled ‘‘Amendment of Part to the Committee on Commerce, Science, Chief, Publications and Regulations Branch, 22 of the Commission’s Rules to Benefit the and Transportation. Internal Revenue Service, Department of the Consumers of Air-Ground Telecommuni- EC–5264. A communication from the Attor- Treasury, transmitting, pursuant to law, the cations Services, et. al.—Order on Reconsid- ney, Federal Railroad Administration, De- report of a rule entitled ‘‘Weighted Average eration and Report and Order’’ (FCC05–202) partment of Transportation, transmitting, Interest Rate Update Notice—Pension Fund- received on January 4, 2006; to the Com- pursuant to law, the report of a rule entitled ing Equity Act of 2004’’ (Notice 2005–96) re- mittee on Commerce, Science, and Transpor- ‘‘Technical Amendments to Standards for ceived on January 4, 2006; to the Committee tation. Development and Use of Processor-Based on Finance. EC–5256. A communication from the Legal Signal and Train Control Systems; Correc- EC–5246. A communication from the Acting Advisor to the Bureau Chief, Media Bureau, tion’’ (RIN2130–AA94) received on January 3, Chief, Publications and Regulations Branch, Federal Communications Commission, trans- 2006; to the Committee on Commerce, Internal Revenue Service, Department of the mitting, pursuant to law, the report of a rule Science, and Transportation. Treasury, transmitting, pursuant to law, the entitled ‘‘Amendment of Section 73.202(b), EC–5265. A communication from the Para- report of a rule entitled ‘‘Cash or Deferred Table of Allotments, FM Broadcast Stations legal, Federal Transit Administration, De- Arrangements under section 401(k) and (Grand Portage, Minnesota)’’ (MB Docket partment of Transportation, transmitting, Matching Contributions section 401(m)’’ No. 04–339) received on January 4, 2006; to the pursuant to law, the report of a rule entitled ((RIN1545–BE05) (TD9237)) received on Janu- Committee on Commerce, Science, and ‘‘Organizations, Functions, and Procedures’’ ary 6, 2006; to the Committee on Finance. Transportation. (RIN2132–AA79) received on January 3, 2006; EC–5247. A communication from the Acting EC–5257. A communication from the Legal to the Committee on Commerce, Science, Chief, Publications and Regulations Branch, Advisor to the Bureau Chief, Media Bureau, and Transportation. Internal Revenue Service, Department of the Federal Communications Commission, trans- EC–5266. A communication from the Pro- Treasury, transmitting, pursuant to law, the mitting, pursuant to law, the report of a rule gram Analyst, Federal Aviation Administra- report of a rule entitled ‘‘Time for Filing entitled ‘‘Amendment of Section 73.202(b), tion, Department of Transportation, trans- Employment Tax Returns and Modifications Table of Allotments, FM Broadcast Stations mitting, pursuant to law, the report of a rule to the Deposit Rules’’ ((RIN1545–BE00) (Fruit Cove and St. Augustine, Florida)’’ entitled ‘‘Airworthiness Directives: Boeing (TD9239)) received on January 6, 2006; to the (MB Docket No. 05–244) received on January Model 737–600, 700, 700C, and 800 Series Air- Committee on Finance. 4, 2006; to the Committee on Commerce, planes’’ ((RIN2120–AA64) (2005–0573)) received EC–5248. A communication from the Acting Science, and Transportation. on January 3, 2006; to the Committee on Chief, Publications and Regulations Branch, EC–5258. A communication from the Legal Commerce, Science, and Transportation. Internal Revenue Service, Department of the Advisor to the Bureau Chief, Media Bureau, EC–5267. A communication from the Pro- gram Analyst, Federal Aviation Administra- Treasury, transmitting, pursuant to law, the Federal Communications Commission, trans- tion, Department of Transportation, trans- report of a rule entitled ‘‘Republication of mitting, pursuant to law, the report of a rule mitting, pursuant to law, the report of a rule Rev. Proc. 2005–6’’ (Rev. Proc. 2006–6) re- entitled ‘‘Amendment of Section 73.202(b), entitled ‘‘Airworthiness Directives: Learjet ceived on January 6, 2006; to the Committee Table of Allotments, FM Broadcast Stations Model 45 Airplanes’’ ((RIN2120–AA64) (2005– on Finance. (Victoria, George West, and Three Rivers, 0572)) received on January 3, 2006; to the EC–5249. A communication from the Acting Texas)’’ (MB Docket No. 03–56) received on Committee on Commerce, Science, and Chief, Publications and Regulations Branch, January 4, 2006; to the Committee on Com- Transportation. Internal Revenue Service, Department of the merce, Science, and Transportation. EC–5268. A communication from the Pro- EC–5259. A communication from the Legal Treasury, transmitting, pursuant to law, the gram Analyst, Federal Aviation Administra- Advisor to the Bureau Chief, Media Bureau, report of a rule entitled ‘‘Republication of tion, Department of Transportation, trans- Rev. Proc. 2005–8’’ (Rev. Proc. 2006–8) re- Federal Communications Commission, trans- mitting, pursuant to law, the report of a rule ceived on January 6, 2006; to the Committee mitting, pursuant to law, the report of a rule entitled ‘‘Airworthiness Directives: BAE on Finance. entitled ‘‘Amendment of Section 73.202(b), Systems Limited Model BAe 146 and Model EC–5250. A communication from the Acting Table of Allotments, FM Broadcast Stations Avro 146–RJ Airplanes’’ ((RIN2120–AA64) Chief, Publications and Regulations Branch, (Caseville, Pigeon, Harbor Beach, and Lex- (2005–0571)) received on January 3, 2006; to Internal Revenue Service, Department of the ington, Michigan)’’ (NM Docket Nos. 01–229 the Committee on Commerce, Science, and Treasury, transmitting, pursuant to law, the and 01–231) received on January 4, 2006; to the Transportation. report of a rule entitled ‘‘Republication of Committee on Commerce, Science, and EC–5269. A communication from the Pro- Rev. Proc. 2005–5’’ (Rev. Proc. 2006–5) re- Transportation. gram Analyst, Federal Aviation Administra- ceived on January 6, 2006; to the Committee EC–5260. A communication from the Legal tion, Department of Transportation, trans- on Finance. Advisor to the Bureau Chief, Media Bureau, mitting, pursuant to law, the report of a rule EC–5251. A communication from the Acting Federal Communications Commission, trans- entitled ‘‘Modification of Class E Airspace: Chief, Publications and Regulations Branch, mitting, pursuant to law, the report of a rule Wellington Municipal Airport, KS’’ Internal Revenue Service, Department of the entitled ‘‘Amendment of Section 73.202(b), ((RIN2120–AA66) (2005–0261)) received on Jan- Treasury, transmitting, pursuant to law, the Table of Allotments, FM Broadcast Stations uary 3, 2006; to the Committee on Commerce, report of a rule entitled ‘‘Republication of (Greenville, LaGrange and Waverly Hall, Science, and Transportation. Rev. Proc. 2005–4’’ (Rev. Proc. 2006–4) re- Georgia)’’ (MB Docket No. 04–339) received on EC–5270. A communication from the Pro- ceived on January 6, 2006; to the Committee January 4, 2006; to the Committee on Com- gram Analyst, Federal Aviation Administra- on Finance. merce, Science, and Transportation. tion, Department of Transportation, trans- EC–5252. A communication from the Acting EC–5261. A communication from the Legal mitting, pursuant to law, the report of a rule Chief, Publications and Regulations Branch, Advisor to the Bureau Chief, Media Bureau, entitled ‘‘Modification of Class E Airspace: Internal Revenue Service, Department of the Federal Communications Commission, trans- Sheldon Municipal Airport, IA’’ ((RIN2120– Treasury, transmitting, pursuant to law, the mitting, pursuant to law, the report of a rule AA66) (2005–0260)) received on January 3, 2006; report of a rule entitled ‘‘Heavy Equipment entitled ‘‘Amendment of Section 73.202(b), to the Committee on Commerce, Science, Dealers Use of Replacement Cost Method to Table of Allotments, FM Broadcast Stations and Transportation. Value Heavy Equipment Parts Inventory’’ (Holdenville and Pauls Valley, Oklahoma)’’ EC–5271. A communication from the Pro- (Rev. Proc. 2006–14) received on January 16, (NM Docket No. 01–180, RM–10200 and RM– gram Analyst, Federal Aviation Administra- 2006; to the Committee on Finance. 11018) received on January 4, 2006; to the tion, Department of Transportation, trans- EC–5253. A communication from the Regu- Committee on Commerce, Science, and mitting, pursuant to law, the report of a rule lations Officer, Social Security Administra- Transportation. entitled ‘‘Revision of Jet Routes J–8, J–18, J– tion, transmitting, pursuant to law, the re- EC–5262. A communication from the Trial 19, J–58, J–104, and J–244; and VOR Federal port of a rule entitled ‘‘Representation of Attorney, Federal Railroad Administration, Airways V–60, V–190, V–263, and V–611; Las Parties; Recognition, Disqualification, and Department of Transportation, transmitting, Vegas, NM’’ ((RIN2120–AA66) (2005–0262)) re- Reinstatement of Representative’’ (RIN0960– pursuant to law, the report of a rule entitled ceived on January 3, 2006; to the Committee AG15) received on January 16, 2006; to the ‘‘Revision of Method for Calculating Mone- on Commerce, Science, and Transportation. Committee on Finance. tary Threshold for Reporting Rail Equip- EC–5272. A communication from the Attor- EC–5254. A communication from the Assist- ment Accidents/Incidents; Announcement of ney-Advisor, United States Coast Guard, De- ant Bureau Chief, Enforcement Bureau, Fed- Reporting Threshold for Calendar Year 2006’’ partment of Homeland Security, transmit- eral Communications Commission, transmit- (RIN2130–AB65) received on January 3, 2006; ting , pursuant to law, the report of a rule ting, pursuant to law, the report of a rule en- to the Committee on Commerce, Science, entitled ‘‘Notification of Arrival in U.S. titled ‘‘Review of the Emergency Alert Sys- and Transportation. Ports; Certain Dangerous Cargoes; Elec- tem’’ ((EB Docket No. 04–296) (FCC05–191)) re- EC–5263. A communication from the Trial tronic Submission’’ (RIN1625–AA93) received ceived on January 4, 2006; to the Committee Attorney, Federal Railroad Administration, on January 3, 2006; to the Committee on on Commerce, Science, and Transportation. Department of Transportation, transmitting, Commerce, Science, and Transportation. EC–5255. A communication from the Legal pursuant to law, the report of a rule entitled EC–5273. A communication from the Attor- Advisor/Chief, Wireless Telecommunications ‘‘Track Safety Standards; Inspection of ney, United States Coast Guard, Department

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00086 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S121 of Homeland Security, transmitting, pursu- tic Bluefin Tuna Fisheries, Quota Transfer’’ mitting, pursuant to law, the report of a rule ant to law, the report of a rule entitled ‘‘Ma- (I.D. 112305D) received on January 4, 2006; to entitled ‘‘Establishment and Revision of rine Casualties and Investigations; Chemical the Committee on Commerce, Science, and Area Navigation Routes; Western United Testing Following Serious Marine Incidents’’ Transportation. States; Correction’’ ((RIN2120–AA66) (2005– ((RIN1625–AA27) (Formerly RIN2115–AG07) EC–5283. A communication from the Acting 0257)) received on January 6, 2006; to the (USCG–2001–8773)) received on January 3, Deputy Assistant Administrator, Office of Committee on Commerce, Science, and 2006; to the Committee on Commerce, Sustainable Fisheries, National Oceanic and Transportation. Science, and Transportation. Atmospheric Administration, Department of EC–5292. A communication from the Pro- EC–5274. A communication from the Attor- Commerce, transmitting, pursuant to law, gram Analyst, Federal Aviation Administra- ney-Advisor, United States Coast Guard, De- the report of a rule entitled ‘‘Fisheries off tion, Department of Transportation, trans- partment of Homeland Security, transmit- West Coast States and in the Western Pa- mitting, pursuant to law, the report of a rule ting, pursuant to law, the report of a rule en- cific; Western Pacific Pelagic Fisheries; Sea entitled ‘‘Modification of Class D and Class E titled ‘‘Reporting Marine Casualties’’ Turtle Mitigation Measures’’ ((RIN0648– Airspace; Salina Municipal Airport, KS; Cor- ((RIN1625–AA04) (USCG–2000–6927)) received AQ91)(I.D. 072105B)) received on January 4, rection’’ ((RIN2120–AA66) (2005–0256)) received on January 3, 2006; to the Committee on 2006; to the Committee on Commerce, on January 6, 2006; to the Committee on Commerce, Science, and Transportation. Science, and Transportation. Commerce, Science, and Transportation. EC–5275. A communication from the Chief, EC–5284. A communication from the Acting EC–5293. A communication from the Pro- Regulations and Administrative Law, United Director, Office of Sustainable Fisheries, Na- gram Analyst, Federal Aviation Administra- States Coast Guard, Department of Home- tional Oceanic and Atmospheric Administra- tion, Department of Transportation, trans- mitting, pursuant to law, the report of a rule land Security, transmitting, pursuant to tion, Department of Commerce, transmit- entitled ‘‘Standard Instrument Approach law, the report of a rule entitled ‘‘Security ting, pursuant to law, the report of a rule en- Procedures; Miscellaneous Amendments Zones; Oahu, Maui, Hawaii, and Kauai, HI’’ titled ‘‘Fisheries Off West Coast States and (119)’’ ((RIN2120–AA65) (2005–003)) received on (RIN1625–AA87) received on January 3, 2006; in the Western Pacific; Pacific Coast January 6, 2006; to the Committee on Com- to the Committee on Commerce, Science, Groundfish Fishery; Annual Specifications merce, Science, and Transportation. and Transportation. and Management Measures; Inseason Adjust- EC–5294. A communication from the Pro- EC–5276. A communication from the Chief, ments’’ (I.D. 112305B) received on January 4, gram Analyst, Federal Aviation Administra- Regulations and Administrative Law, United 2006; to the Committee on Commerce, tion, Department of Transportation, trans- States Coast Guard, Department of Home- Science, and Transportation. mitting, pursuant to law, the report of a rule land Security, transmitting, pursuant to EC–5285. A communication from the Acting entitled ‘‘Standard Instrument Approach law, the report of a rule entitled ‘‘Regulated Director, Office of Sustainable Fisheries, Na- Procedures; Miscellaneous Amendments Navigation Area; East Rockaway Inlet to At- tional Oceanic and Atmospheric Administra- (38)’’ ((RIN2120–AA65) (2005–0034)) received on lantic Beach Bridge, Nassau County, Long tion, Department of Commerce, transmit- January 6, 2006; to the Committee on Com- Island, New York’’ (RIN1625–AA11) received ting, pursuant to law, the report of a rule en- merce, Science, and Transportation. on January 3, 2006; to the Committee on titled ‘‘Fisheries of the Exclusive Economic EC–5295. A communication from the Dep- Commerce, Science, and Transportation. Zone Off Alaska; Reallocation of Pacific Cod uty Secretary, Department of the Interior, EC–5277. A communication from the Chief, in the Bering Sea and Aleutian Islands Man- transmitting, pursuant to law, the Depart- Regulations and Administrative Law, United agement Area’’ (I.D. 112105A) received on ment’s Competitive Sourcing Report for Fis- States Coast Guard, Department of Home- January 4, 2006; to the Committee on Com- cal Year 2005; to the Committee on Energy land Security, transmitting, pursuant to merce, Science, and Transportation. and Natural Resources. law, the report of a rule entitled ‘‘Safety EC–5286. A communication from the Acting EC–5296. A communication from the Prin- Zone; Chicago New Year’s Celebration, Lake Director, Office of Sustainable Fisheries, Na- cipal Deputy Assistant Secretary, Bureau of Michigan, Chicago, IL’’ (RIN1625–AA00) re- tional Oceanic and Atmospheric Administra- Indian Affairs, Department of the Interior, ceived on January 3, 2006; to the Committee tion, Department of Commerce, transmit- transmitting, pursuant to law, the report of on Commerce, Science, and Transportation. ting, pursuant to law, the report of a rule en- a rule entitled ‘‘Reindeer in Alaska’’ EC–5278. A communication from the Chief, titled ‘‘Atlantic Herring Fishery; Closure of (RIN1076–AE37) received on January 6, 2006; Regulations and Administrative Law, United Directed Fishery for Management Area 1A’’ to the Committee on Indian Affairs. States Coast Guard, Department of Home- (I.D. 112505B) received on January 4, 2006; to EC–5297. A communication from the Ad- land Security, transmitting, pursuant to the Committee on Commerce, Science, and ministrator, Food and Nutrition Service, De- law, the report of a rule entitled ‘‘Anchorage Transportation. partment of Agriculture, transmitting, pur- Regulations; Mississippi River Below Baton EC–5287. A communication from the Acting suant to law, the report of a rule entitled Rouge, LA, Including South and Southwest Director, Office of Sustainable Fisheries, Na- ‘‘Child and Adult Care Food Program: Age Passes’’ (RIN1625–AA01) received on January tional Oceanic and Atmospheric Administra- Limits for Children Receiving Meals in 3, 2006; to the Committee on Commerce, tion, Department of Commerce, transmit- Emergency Shelters’’ (RIN0584–AD56) re- Science, and Transportation. ting, pursuant to law, the report of a rule en- ceived on January 6, 2006; to the Committee EC–5279. A communication from the Chief, titled ‘‘Temporary Rule; Quota Transfer on Agriculture, Nutrition, and Forestry. EC–5298. A communication from the Assist- Regulations and Administrative Law, United (Summer Flounder Commercial Quota ant Legal Adviser for Treaty Affairs, Depart- States Coast Guard, Department of Home- Transfer Between NC and VA)’’ (I.D. 112905B) ment of State, transmitting, pursuant to the land Security, transmitting, pursuant to received on January 4, 2006; to the Com- Case-Zablocki Act, 1 U.S.C. 112b, as amended, law, the report of a rule entitled ‘‘Draw- mittee on Commerce, Science, and Transpor- the report of the texts and background state- bridge Operation Regulations (including 2 tation. ments of international agreements, other regulations): [CGD01–00–228], [CGD13–05–023]’’ EC–5288. A communication from the Pro- than treaties (List 05–318—05–332); to the (RIN1625–AA09) received on January 3, 2006; gram Analyst, Federal Aviation Administra- Committee on Foreign Relations. to the Committee on Commerce, Science, tion, Department of Transportation, trans- EC–5299. A communication from the Direc- and Transportation. mitting, pursuant to law, the report of a rule tor, Office of Regulation Policy and Manage- EC–5280. A communication from the Chief, entitled ‘‘Supplemental Oxygen’’ (RIN2120– ment, Department of Veterans Affairs, trans- Regulations and Administrative Law, United AI65) received on January 6, 2006; to the mitting, pursuant to law, the report of a rule States Coast Guard, Department of Home- Committee on Commerce, Science, and entitled ‘‘Reservists’ Education: Revision of land Security, transmitting, pursuant to Transportation. Eligibility Requirements for the Mont- law, the report of a rule entitled ‘‘Draw- EC–5289. A communication from the Pro- gomery GI Bill—Selected Reserve’’ (RIN2900– bridge Operation Regulations (including 2 gram Analyst, Federal Aviation Administra- AL69) received on January 6, 2006; to the regulations): [CGD01–05–110], [CGD11–05–035]’’ tion, Department of Transportation, trans- Committee on Veterans’ Affairs. (RIN1625–AA09) received on January 3, 2006; mitting, pursuant to law, the report of a rule EC–5300. A communication from the Chair- to the Committee on Commerce, Science, entitled ‘‘FAA Accident and Incident Data man and President (Acting), Export-Import and Transportation. System Records Expunction Policy’’ Bank of the United States, transmitting, EC–5281. A communication from the Assist- (RIN2120–ZZ77) received on January 6, 2006; pursuant to law, a report relative to trans- ant Secretary for Legislative Affairs, De- to the Committee on Commerce, Science, actions involving U.S. exports to the King- partment of Homeland Security, transmit- and Transportation. dom of the Netherlands; to the Committee ting, pursuant to law, a report stating that EC–5290. A communication from the Pro- on Banking, Housing, and Urban Affairs. the Coast Guard implemented no new rules gram Analyst, Federal Aviation Administra- EC–5301. A communication from the Fed- in 2005 concerning the Edible Oil Regulatory tion, Department of Transportation, trans- eral Register Certifying Officer, Financial Reform Act; to the Committee on Com- mitting, pursuant to law, the report of a rule Management Service, Department of the merce, Science, and Transportation. entitled ‘‘Revocation of Class E Airspace; Treasury, transmitting, pursuant to law, the EC–5282. A communication from the Direc- Eagle, CO’’ ((RIN2120–AA66) (2005–0258)) re- report of a rule entitled ‘‘Withholding of Dis- tor, Office of Sustainable Fisheries, National ceived on January 6, 2006; to the Committee trict of Columbia, State, City and County In- Oceanic and Atmospheric Administration, on Commerce, Science, and Transportation. come or Employment Taxes by Federal Department of Commerce, transmitting, pur- EC–5291. A communication from the Pro- Agencies’’ (RIN1510–AB06) received on Janu- suant to law, the report of a rule entitled gram Analyst, Federal Aviation Administra- ary 6, 2006; to the Committee on Banking, ‘‘Atlantic Highly Migratory Species; Atlan- tion, Department of Transportation, trans- Housing, and Urban Affairs.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00087 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S122 CONGRESSIONAL RECORD — SENATE January 25, 2006 EC–5302. A communication from the Assist- a rule entitled ‘‘Eligibility of Students for munity Eligibility’’ ((Doc. No. FEMA– ant Secretary for Legislative Affairs, De- Assisted Housing Under Section 8 of the U.S. 7905)(44 CFR Part 64)) received on January 16, partment of State, transmitting, pursuant to Housing Act of 1937’’ ((RIN2501–AD19)(FR– 2006; to the Committee on Banking, Housing, law, the six-month periodic report on the na- 5036–F–01)) received on January 3, 2006; to the and Urban Affairs. tional emergency with respect to the pro- Committee on Banking, Housing, and Urban EC–5322. A communication from the Gen- liferation of weapons of mass destruction Affairs. eral Counsel, Federal Emergency Manage- that was declared in Executive Order 12938 of EC–5312. A communication from the Direc- ment Agency, Department of Homeland Se- November 14, 1994; to the Committee on tor, Financial Crimes Enforcement Network, curity, transmitting, pursuant to law, the re- Banking, Housing, and Urban Affairs. Department of the Treasury, transmitting, port of a rule entitled ‘‘Suspension of Com- EC–5303. A communication from the Acting pursuant to law, the report of a rule entitled munity Eligibility’’ ((Doc. No. FEMA– Director, Federal Emergency Management ‘‘Anti-Money Laundering Programs—Special 7897)(44 CFR Part 64)) received on January 16, Agency, Department of Homeland Security, Due Diligence Programs for Certain Foreign 2006; to the Committee on Banking, Housing, transmitting, pursuant to law, a report that Accounts’’ (RIN1506–AA29) received on Janu- and Urban Affairs. funding for the State of Georgia as a result ary 4, 2006; to the Committee on Banking, EC–5323. A communication from the Gen- of the emergency conditions resulting from Housing, and Urban Affairs. eral Counsel, Federal Emergency Manage- the influx of evacuees from areas struck by EC–5313. A communication from the Gen- ment Agency, Department of Homeland Se- Hurricane Katrina beginning on August 29, eral Counsel, National Credit Union Admin- curity, transmitting, pursuant to law, the re- 2005, and continuing, has exceeded $5,000,000; istration, transmitting, pursuant to law, the port of a rule entitled ‘‘Suspension of Com- to the Committee on Banking, Housing, and report of a rule entitled ‘‘Requirements for munity Eligibility’’ ((Doc. No. FEMA– Urban Affairs. Insurance; Purchase of Assets and Assump- 7895)(44 CFR Part 64)) received on January 16, EC–5304. A communication from the Presi- tion of Liabilities’’ (RIN3133–AD14) received 2006; to the Committee on Banking, Housing, dent of the United States of America, trans- on January 8, 2006; to the Committee on and Urban Affairs. mitting, pursuant to law, a report relative to Banking, Housing, and Urban Affairs. EC–5324. A communication from the Gen- the continuation of the emergency with re- EC–5314. A communication from the Gen- eral Counsel, Federal Emergency Manage- spect to the Government of Cuba’s destruc- eral Counsel, National Credit Union Admin- ment Agency, Department of Homeland Se- tion of two unarmed U.S.-registered civilian istration, transmitting, pursuant to law, the curity, transmitting, pursuant to law, the re- aircraft; to the Committee on Banking, report of a rule entitled ‘‘Fidelity Bond and port of a rule entitled ‘‘Final Flood Ele- Housing, and Urban Affairs. Insurance Coverage for Federal Credit vation Determinations’’ ((70 FR 55031)(44 EC–5305. A communication from the Sec- Unions’’ (12 CFR Parts 713 and 741) received CFR Part 67)) received on January 16, 2006; to retary of Commerce, transmitting, pursuant on January 8, 2006; to the Committee on the Committee on Banking, Housing, and to law, a six-month report prepared by the Banking, Housing, and Urban Affairs. Urban Affairs. Department of Commerce’s Bureau of Indus- EC–5315. A communication from the Gen- EC–5325. A communication from the Gen- try and Security on the national emergency eral Counsel, National Credit Union Admin- eral Counsel, Federal Emergency Manage- declared by Executive Order 13222 of August istration, transmitting, pursuant to law, the ment Agency, Department of Homeland Se- 17, 2001; to the Committee on Banking, Hous- report of a rule entitled ‘‘Audit Require- curity, transmitting, pursuant to law, the re- ing, and Urban Affairs. ments for Credit Union Service Organiza- port of a rule entitled ‘‘Final Flood Ele- EC–5306. A communication from the Sec- tions’’ (12 CFR Part 712) received on January vation Determinations’’ ((70 FR 57791)(44 retary of the Treasury, transmitting, pursu- 16, 2006; to the Committee on Banking, Hous- CFR Part 67)) received on January 16, 2006; to ant to law, a six-month periodic report on ing, and Urban Affairs. the Committee on Banking, Housing, and the national emergency with respect to ter- EC–5316. A communication from the Gen- Urban Affairs. rorists who threaten to disrupt the Middle eral Counsel, National Credit Union Admin- EC–5326. A communication from the Gen- East peace process that was declared in Ex- istration, transmitting, pursuant to law, the eral Counsel, Federal Emergency Manage- ecutive Order 12947 of January 23, 1995; to the report of a rule entitled ‘‘Security Program ment Agency, Department of Homeland Se- Committee on Banking, Housing, and Urban and Appendix B—Guidance on Response Pro- curity, transmitting, pursuant to law, the re- Affairs. grams for Unauthorized Access to Member port of a rule entitled ‘‘Changes in Flood EC–5307. A communication from the Sec- Information and Member Notice’’ (12 CFR Elevation Determinations’’ ((Doc. No. retary of the Treasury, transmitting, pursu- Part 748) received on January 16, 2006; to the FEMA–D–7579)(44 CFR Part 65)) received on ant to law, the six-month periodic report on Committee on Banking, Housing, and Urban January 16, 2006; to the Committee on Bank- the national emergency with respect to the Affairs. ing, Housing, and Urban Affairs. risk of nuclear proliferation created by the EC–5317. A communication from the Assist- EC–5327. A communication from the Gen- accumulation of weapons-usable fissile mate- ant to the Board, Federal Reserve Board, eral Counsel, Federal Emergency Manage- rial in the territory of the Russian Federa- transmitting, pursuant to law, the report of ment Agency, Department of Homeland Se- tion that was declared in Executive Order a rule entitled ‘‘Regulation E—Electronic curity, transmitting, pursuant to law, the re- 13159 of June 21, 2000; to the Committee on Fund Transfers’’ (Docket No. R–1247) re- port of a rule entitled ‘‘Changes in Flood Banking, Housing, and Urban Affairs. ceived on January 16, 2006; to the Committee Elevation Determinations’’ ((Doc. No. EC–5308. A communication from the Sec- on Banking, Housing, and Urban Affairs. FEMA–P–7646)(44 CFR Part 65)) received on retary of the Treasury, transmitting, pursu- EC–5318. A communication from the Gen- January 16, 2006; to the Committee on Bank- ant to law, the six-month periodic report on eral Counsel, Federal Emergency Manage- ing, Housing, and Urban Affairs. the national emergency with respect to the ment Agency, Department of Homeland Se- EC–5328. A communication from the Gen- Western Balkans that was declared in Execu- curity, transmitting, pursuant to law, the re- eral Counsel, Federal Emergency Manage- tive Order 13219 of June 26, 2001; to the Com- port of a rule entitled ‘‘Changes in Flood ment Agency, Department of Homeland Se- mittee on Banking, Housing, and Urban Af- Elevation Determinations’’ ((Doc. No. curity, transmitting, pursuant to law, the re- fairs. FEMA–B–7455)(44 CFR Part 65)) received on port of a rule entitled ‘‘Changes in Flood EC–5309. A communication from the Assist- January 16, 2006; to the Committee on Bank- Elevation Determinations’’ ((70 FR 57788)(44 ant to the Board, Division of Consumer and ing, Housing, and Urban Affairs. CFR Part 65)) received on January 16, 2006; to Community Affairs, Board of Governors of EC–5319. A communication from the Gen- the Committee on Banking, Housing, and the Federal Reserve System, transmitting, eral Counsel, Federal Emergency Manage- Urban Affairs. pursuant to law, the report of a rule entitled ment Agency, Department of Homeland Se- EC–5329. A communication from the Gen- ‘‘Home Mortgage Disclosure Act’’ (Docket curity, transmitting, pursuant to law, the re- eral Counsel, Federal Emergency Manage- No. 1245) received on January 3, 2006; to the port of a rule entitled ‘‘Suspension of Com- ment Agency, Department of Homeland Se- Committee on Banking, Housing, and Urban munity Eligibility’’ ((Doc. No. FEMA– curity, transmitting, pursuant to law, the re- Affairs. 7899)(44 CFR Part 64)) received on January 16, port of a rule entitled ‘‘Changes in Flood EC–5310. A communication from the Asso- 2006; to the Committee on Banking, Housing, Elevation Determinations’’ ((70 FR 55029)(44 ciate General Counsel for Legislation and and Urban Affairs. CFR Part 65)) received on January 16, 2006; to Regulations, Office of the Secretary, Depart- EC–5320. A communication from the Gen- the Committee on Banking, Housing, and ment of Housing and Urban Development, eral Counsel, Federal Emergency Manage- Urban Affairs. transmitting, pursuant to law, the report of ment Agency, Department of Homeland Se- EC–5330. A communication from the Coun- a rule entitled ‘‘Electronic Submission of curity, transmitting, pursuant to law, the re- sel for Legislation and Regulations, Office of Applications for Grants and Other HUD Fi- port of a rule entitled ‘‘List of Communities Housing, Department of Housing and Urban nancial Assistance’’ ((RIN2501–AD02)(FR– Eligible for the Sale of Flood Insurance’’ Development, transmitting, pursuant to law, 4875–F–02)) received on January 3, 2006; to the ((Doc. No. FEMA–7782)(44 CFR Part 64)) re- the report of a rule entitled ‘‘Eligibility of Committee on Banking, Housing, and Urban ceived on January 16, 2006; to the Committee Adjustable Rate Mortgages’’ ((RIN2502– Affairs. on Banking, Housing, and Urban Affairs. AI26)(FR–4946–F–02)) received on January 18, EC–5311. A communication from the Asso- EC–5321. A communication from the Gen- 2006; to the Committee on Banking, Housing, ciate General Counsel for Legislation and eral Counsel, Federal Emergency Manage- and Urban Affairs. Regulations, Office of the Secretary, Depart- ment Agency, Department of Homeland Se- EC–5331. A communication from the Assist- ment of Housing and Urban Development, curity, transmitting, pursuant to law, the re- ant to the Board, Federal Reserve Board, transmitting, pursuant to law, the report of port of a rule entitled ‘‘Suspension of Com- transmitting, pursuant to law, the report of

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a rule entitled ‘‘Regulation E—Electronic Mr. CARPER, Mrs. CLINTON, Mr. CON- By Mr. COLEMAN (for himself, Mr. Fund Transfers’’ (Dockets R–1210 and R–1234) RAD, Mr. DAYTON, Mr. DORGAN, Mr. SCHUMER, Mr. LAUTENBERG, Mr. received on January 16, 2006; to the Com- FEINGOLD, Mr. HARKIN, Mr. JOHNSON, ALLEN, Mr. DEWINE, Mr. BROWNBACK, mittee on Banking, Housing, and Urban Af- Mr. KENNEDY, Mr. KERRY, Mr. KOHL, Mr. NELSON of Nebraska, Mr. NELSON fairs. Mr. LAUTENBERG, Mr. LEAHY, Mr. of Florida, and Mrs. FEINSTEIN): EC–5332. A communication from the Sec- LEVIN, Mr. LIEBERMAN, Mrs. LINCOLN, S. Con. Res. 76. A concurrent resolution retary of Labor, transmitting, the report of Mr. MENENDEZ, Ms. MIKULSKI, Mrs. condemning the Government of Iran for its a draft bill which would amend the Mine MURRAY, Mr. OBAMA, Mr. REED, Mr. flagrant violations of its obligations under Safety and Health Administration’s ROCKEFELLER, Mr. SALAZAR, and Mr. the Nuclear Non-Proliferation Treaty, and (‘‘MSHA’’) civil money penalty system by WYDEN): calling for certain actions in response to permitting MSHA to levy a maximum civil S. 2180. A bill to provide more rigorous re- such violations; to the Committee on For- penalty of $220,000 for certain violations quirements with respect to disclosure and eign Relations. (termed ‘‘flagrant’’ violations) that substan- enforcement of ethics and lobbying laws and f tially and proximately caused, or reasonably regulations, and for other purposes; to the could have been expected to cause, death or Committee on Homeland Security and Gov- INTRODUCTION OF BILLS AND serious bodily injury; to the Committee on ernmental Affairs. JOINT RESOLUTIONS Health, Education, Labor, and Pensions. By Mr. LAUTENBERG (for himself, EC–5333. A communication from the Dep- Ms. SNOWE, Mr. SCHUMER, Mr. COLE- The following bills and joint resolu- uty Executive Director, Pension Benefit MAN, Mrs. FEINSTEIN, Mr. PRYOR, Mr. tions were introduced, read the first Guaranty Corporation, transmitting, pursu- DEWINE, Mrs. BOXER, Mr. MENENDEZ, and second times by unanimous con- ant to law, the report of a rule entitled Ms. COLLINS, Mr. DAYTON, Mr. REED, sent, and referred as indicated: ‘‘Benefits Payable in Terminated Single-Em- Mr. JEFFORDS, Mrs. LINCOLN, Mr. By Mr. SCHUMER: ployer Plans; Allocation of Assets in Single- LEAHY, Mr. WYDEN, Ms. STABENOW, S. 2184. A bill to amend title XVIII of the Employer Plans; Interest Assumptions for Mr. JOHNSON, Mr. KENNEDY, Mr. DOR- Social Security Act to provide residents of Valuing and Paying Benefits’’ (29 CFR Parts GAN, Mr. LIEBERMAN, Mrs. CLINTON, long-term care facilities with assistance 4022 and 4044) received on January 8, 2006; to Mr. CHAFEE, and Mr. DODD): with respect to prescription drug coverage the Committee on Health, Education, Labor, S. 2181. A bill to amend title XIX of the So- under part D of such title for the resident; to and Pensions. cial Security Act to provide for an offset the Committee on Finance. EC–5334. A communication from the Dep- from the Medicaid clawback for State pre- By Mr. HAGEL (for himself, Mr. HAR- uty Executive Director, Pension Benefit scription drug expenditures for covered part KIN, Mr. JEFFORDS, Mr. ROBERTS, Mr. Guaranty Corporation, transmitting, pursu- D drugs for Medicare beneficiaries; to the SCHUMER, Mr. LIEBERMAN, Mr. WAR- ant to law, the report of a rule entitled Committee on Finance. NER, Mr. DAYTON, Mr. KERRY, Mr. ‘‘Valuations of Benefits: Mortality Assump- By Mr. ISAKSON: CHAFEE, Mr. KENNEDY, Ms. MIKULSKI, tions’’ (RIN1212–AA55) received on January 8, S. 2182. A bill to terminate the Internal Ms. SNOWE, Mr. DODD, Mr. REED, Ms. 2006; to the Committee on Health, Education, Revenue Code of 1986, and for other purposes; COLLINS, Mrs. MURRAY, Mr. BINGA- Labor, and Pensions. to the Committee on Finance. MAN, Mr. COLEMAN, and Mr. JOHNSON): By Mr. ROCKEFELLER (for himself, f S. 2185. A bill to amend part B of the Indi- Mr. REID, Mrs. MURRAY, Mr. BINGA- viduals with Disabilities Education Act to REPORTS OF COMMITTEES MAN, Mrs. LINCOLN, Mr. KENNEDY, provide full Federal funding of such part; to Mrs. CLINTON, Mr. LAUTENBERG, Ms. Under the authority of the order of the Committee on Health, Education, Labor, STABENOW, Mr. DURBIN, Mr. KERRY, and Pensions. the Senate of January 18, 2006, the fol- Mr. SCHUMER, Mr. PRYOR, Mr. LEAHY, By Mr. COLEMAN (for himself, Mr. lowing reports of committees were sub- Mr. DAYTON, Mr. JEFFORDS, Mr. HAR- NELSON of Nebraska, Mr. ALLARD, mitted on January 24, 2006. KIN, Ms. MIKULSKI, Mr. JOHNSON, Ms. Mr. ENZI, Mr. BURNS, Mr. COBURN, By Mr. MCCAIN, from the Committee on CANTWELL, Mr. AKAKA, Mr. LIEBER- and Mr. THOMAS): Indian Affairs, without amendment. MAN, Mr. KOHL, Ms. LANDRIEU, Mr. S. 2186. A bill to establish a commission to S. 1219. A bill to authorize certain tribes in SARBANES, and Mrs. BOXER): strengthen confidence in Congress; to the the State of Montana to enter into a lease or S. 2183. A bill to provide for necessary ben- Committee on Rules and Administration. other temporary conveyance of water rights eficiary protections in order to ensure access By Mr. ISAKSON: to meet the water needs of the Dry Prairie to coverage under the Medicare part D pre- S. 2187. A bill to amend the International Rural Water Association, Inc. (Rept. No. 109– scription drug program; to the Committee on Revenue Code of 1986 to provide economic in- 213). Finance. centives for the preservation of open space f and conservation of natural resources, and f for other purposes; to the Committee on Fi- SUBMISSION OF CONCURRENT AND nance. EXECUTIVE REPORT OF COM- SENATE RESOLUTIONS MITTEE RECEIVED DURING AD- By Mr. SANTORUM: JOURNMENT Under authority of the order of the S. 2188. A bill to suspend temporarily the Senate of January 18, 2006, the fol- duty on hydrazine hydrate; to the Com- Under the authority of the order of lowing concurrent resolutions and Sen- mittee on Finance. the Senate of January 18, 2006, the fol- By Mr. SANTORUM: ate resolutions were read, and referred S. 2189. A bill to suspend temporarily the lowing executive report of committee (or acted upon), as indicated: was submitted on January 24, 2006: duty on certain fungicides containing zinc By Mr. SANTORUM (for himself and dimethyldithiocarbamate; to the Committee By Mr. SPECTER for the Committee on the Mr. KYL): on Finance. Judiciary. S. Res. 349. A resolution condemning the By Mr. SANTORUM: Samuel A. Alito, Jr., of New Jersey, to be Government of Iran for violating the terms S. 2190. A bill to extend the temporary sus- an Associate Justice of the Supreme Court of of the 2004 Paris Agreement, and expressing pension of duty on 11-aminoundecanoic acid the United States. support for efforts to refer Iran to the United (monomer 11); to the Committee on Finance. (Nominations without an asterisk Nations Security Council for its noncompli- By Mr. SANTORUM: were reported with the recommenda- ance with International Atomic Energy S. 2191. A bill to extend the temporary sus- tion that they be confirmed.) Agency obligations; to the Committee on pension of duty on thiophanate-methyl; to Foreign Relations. the Committee on Finance. f By Mr. LEAHY (for himself and Mr. By Mr. SANTORUM: INTRODUCTION OF BILLS AND KENNEDY): S. 2192. A bill to extend the temporary sus- S. Res. 350. A resolution expressing the pension of duty on thiophanate-methyl fun- JOINT RESOLUTIONS sense of the Senate that Senate Joint Reso- gicide 70% wettable powder; to the Com- Under authority of the order of the lution 23 (107th Congress), as adopted by the mittee on Finance. Senate of January 18, 2006, the fol- Senate on September 14, 2001, and subse- By Mrs. HUTCHISON: lowing bills and joint resolutions were quently enacted as the Authorization for Use S. 2193. A bill to amend the Internal Rev- introduced, read the first and second of Military Force does not authorize enue Code of 1986 to establish fairness in the warrantless domestic surveillance of United treatment of certain pension plans main- times by unanimous consent, and re- States citizens; to the Committee on the Ju- tained by churches, and for other purposes; ferred as indicated: diciary. to the Committee on Finance. By Mr. REID (for himself, Mr. DURBIN, By Mr. BAYH: By Mr. STEVENS: Ms. STABENOW, Mr. SCHUMER, Mr. S. Res. 351. A resolution responding to the S. 2194. A bill for the relief of Nadezda AKAKA, Mr. BAUCUS, Mr. BAYH, Mr. threat posed by Iran’s nuclear program; to Shestakova; to the Committee on the Judici- BIDEN, Mr. BINGAMAN, Mrs. BOXER, the Committee on Foreign Relations. ary.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00089 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S124 CONGRESSIONAL RECORD — SENATE January 25, 2006 By Mr. STEVENS: waii (Mr. INOUYE) were added as co- (Ms. STABENOW) was added as a cospon- S. 2195. A bill for the relief of Ilya sponsors of S. 756, a bill to amend the sor of S. 1060, a bill to amend the Inter- Shestakov; to the Committee on the Judici- Public Health Service Act to enhance nal Revenue Code of 1986 to allow a ary. public and health professional aware- credit against income tax for the pur- By Mrs. CLINTON (for herself, Mr. REID, and Mr. BINGAMAN): ness and understanding of lupus and to chase of hearing aids. S. 2196. A bill to authorize the Secretary of strengthen the Nation’s research ef- S. 1112 Energy to establish the position of Assistant forts to identify the causes and cure of At the request of Mr. BAUCUS, the Secretary for Advanced Energy Research, lupus. name of the Senator from Michigan Technology Development, and Deployment S. 832 (Mr. LEVIN) was added as a cosponsor of to implement an innovative energy research, At the request of Mr. BINGAMAN, the S. 1112, a bill to make permanent the technology development, and deployment enhanced educational savings provi- program; to the Committee on Energy and name of the Senator from Illinois (Mr. Natural Resources. DURBIN) was added as a cosponsor of S. sions for qualified tuition programs en- acted as part of the Economic Growth f 832, a bill to amend the Internal Rev- enue Code of 1986 to provide taxpayer and Tax Relief Reconciliation Act of SUBMISSION OF CONCURRENT AND protection and assistance, and for 2001. SENATE RESOLUTIONS other purposes. S. 1139 The following concurrent resolutions S. 908 At the request of Mr. SANTORUM, the and Senate resolutions were read, and At the request of Mr. MCCONNELL, names of the Senator from Washington referred (or acted upon), as indicated: the name of the Senator from Georgia (Ms. CANTWELL) and the Senator from By Mrs. HUTCHISON (for herself and (Mr. CHAMBLISS) was added as a cospon- Michigan (Mr. LEVIN) were added as co- Mr. CORNYN): sor of S. 908, a bill to allow Congress, sponsors of S. 1139, a bill to amend the S. Res. 352. A resolution commending the State legislatures, and regulatory Animal Welfare Act to strengthen the University of Texas at Austin Longhorns agencies to determine appropriate ability of the Secretary of Agriculture football team for winning the 2005 Bowl laws, rules, and regulations to address to regulate the pet industry. Championship Series national championship; S. 1167 considered and agreed to. the problems of weight gain, obesity, At the request of Mr. VOINOVICH, the By Mr. FRIST (for himself, Mr. REID, and health conditions associated with Mr. MCCONNELL, Mr. MCCAIN, Mr. weight gain or obesity. name of the Senator from Ohio (Mr. COLEMAN, and Mr. LUGAR): S. 914 DEWINE) was added as a cosponsor of S. S. Res. 353. A resolution expressing con- At the request of Mr. ALLARD, the 1167, a bill to provide that certain wire cern with the deliberate undermining of names of the Senator from Iowa (Mr. rods shall not be subject to any anti- democratic freedoms and justice in Cam- HARKIN) and the Senator from Lou- dumping duty or countervailing duty bodia by Prime Minister Hun Sen and the order. Government of Cambodia; considered and isiana (Ms. LANDRIEU) were added as S. 1173 agreed to. cosponsors of S. 914, a bill to amend the By Mr. FRIST (for himself and Mr. Public Health Service Act to establish At the request of Mr. DEMINT, the REID): a competitive grant program to build name of the Senator from Mississippi S. Con. Res. 77. A concurrent resolution to capacity in veterinary medical edu- (Mr. LOTT) was added as a cosponsor of provide for a joint session of Congress to re- cation and expand the workforce of S. 1173, a bill to amend the National ceive a message from the President on the veterinarians engaged in public health Labor Relations Act to ensure the State of the Union; considered and agreed to. practice and biomedical research. right of employees to a secret-ballot f election conducted by the National S. 932 Labor Relations Board. ADDITIONAL COSPONSORS At the request of Mr. KENNEDY, the S. 1263 S. 58 name of the Senator from Hawaii (Mr. At the request of Mr. BOND, the name INOUYE) was added as a cosponsor of S. At the request of Mr. INOUYE, the of the Senator from Delaware (Mr. name of the Senator from New Jersey 932, a bill to provide for paid sick leave to ensure that Americans can address CARPER) was added as a cosponsor of S. (Mr. LAUTENBERG) was added as a co- 1263, a bill to amend the Small Busi- sponsor of S. 58, a bill to amend title their own health needs and the health needs of their families. ness Act to establish eligibility re- 10, United States Code, to permit quirements for business concerns to re- former members of the Armed Forces S. 941 ceive awards under the Small Business who have a service-connected dis- At the request of Ms. COLLINS, the Innovation Research Program. ability rated as total to travel on mili- name of the Senator from Pennsyl- S. 1294 tary aircraft in the same manner and vania (Mr. SANTORUM) was added as a At the request of Mr. LAUTENBERG, to the same extent as retired members cosponsor of S. 941, a bill to amend the the name of the Senator from Min- of the Armed Forces are entitled to Cooperative Forestry Assistance Act of nesota (Mr. COLEMAN) was added as a travel on such aircraft. 1978 to establish a program to provide cosponsor of S. 1294, a bill to amend the assistance to States and nonprofit or- S. 382 Telecommunications Act of 1996 to pre- ganizations to preserve suburban forest At the request of Mr. ENSIGN, the serve and protect the ability of local land and open space and contain subur- name of the Senator from North Caro- governments to provide broadband ca- ban sprawl. lina (Mrs. DOLE) was added as a cospon- pability and services. S. 960 sor of S. 382, a bill to amend title 18, S. 1353 United States Code, to strengthen pro- At the request of Mr. ENZI, the name At the request of Mr. REID, the name hibitions against animal fighting, and of the Senator from Iowa (Mr. GRASS- of the Senator from Connecticut (Mr. for other purposes. LEY) was added as a cosponsor of S. 960, DODD) was added as a cosponsor of S. S. 484 a bill to amend the Packers and Stock- 1353, a bill to amend the Public Health At the request of Mr. WARNER, the yards Act, 1921, to prohibit the use of Service Act to provide for the estab- name of the Senator from Alaska (Ms. certain anti-competitive forward con- lishment of an Amyotrophic Lateral MURKOWSKI) was added as a cosponsor tracts. Sclerosis Registry. of S. 484, a bill to amend the Internal S. 983 S. 1354 Revenue Code of 1986 to allow Federal At the request of Mr. DEMINT, the At the request of Mr. FEINGOLD, the civilian and military retirees to pay name of the Senator from Louisiana name of the Senator from Hawaii (Mr. health insurance premiums on a pretax (Mr. VITTER) was added as a cosponsor INOUYE) was added as a cosponsor of S. basis and to allow a deduction for of S. 983, a bill to amend the National 1354, a bill to establish commissions to TRICARE supplemental premiums. Labor Relations Act to protect em- review the facts and circumstances sur- S. 756 ployer rights. rounding injustices suffered by Euro- At the request of Mr. BENNETT, the S. 1060 pean Americans, European Latin names of the Senator from Connecticut At the request of Mr. COLEMAN, the Americans, and Jewish refugees during (Mr. DODD) and the Senator from Ha- name of the Senator from Michigan World War II.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00090 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S125 S. 1357 of S. 1807, a bill to provide assistance (Mrs. FEINSTEIN) was added as a co- At the request of Mr. HARKIN, the for small businesses damaged by Hurri- sponsor of S. 1934, a bill to reauthorize name of the Senator from Connecticut cane Katrina or Hurricane Rita, and the grant program of the Department (Mr. LIEBERMAN) was added as a co- for other purposes. of Justice for reentry of offenders into sponsor of S. 1357, a bill to protect pub- S. 1821 the community, to establish a task lic health by clarifying the authority At the request of Mr. REID, the name force on Federal programs and activi- of the Secretary of Agriculture to pre- of the Senator from Delaware (Mr. ties relating to the reentry of offenders scribe performance standards for the BIDEN) was added as a cosponsor of S. into the community, and for other pur- reduction of pathogens in meat, meat 1821, a bill to amend the Public Health poses. products, poultry, and poultry products Service Act with respect to preparation S. 1956 processed by establishments receiving for an influenza pandemic, including an At the request of Mr. BROWNBACK, the inspection services and to enforce the avian influenza pandemic, and for name of the Senator from Virginia (Mr. Hazard Analysis and Critical Control other purposes. ALLEN) was added as a cosponsor of S. Point (HACCP) System requirements, S. 1841 1956, a bill to amend the Federal Food, sanitation requirements, and the per- At the request of Mr. NELSON of Flor- Drug, and Cosmetic Act to create a formance standards. ida, the names of the Senator from Ne- new three-tiered approval system for S. 1449 braska (Mr. NELSON), the Senator from drugs, biological products, and devices At the request of Mr. SMITH, the Colorado (Mr. SALAZAR) and the Sen- that is responsive to the needs of seri- name of the Senator from California ator from Indiana (Mr. BAYH) were ously ill patients, and for other pur- (Mrs. BOXER) was added as a cosponsor added as cosponsors of S. 1841, a bill to poses. of S. 1449, a bill to amend the Internal amend title XVIII of the Social Secu- S. 1966 Revenue Code of 1986 with respect to rity Act to provide extended and addi- At the request of Mrs. DOLE, the the eligibility of veterans for mortgage tional protection to Medicare bene- name of the Senator from Pennsyl- bond financing, and for other purposes. ficiaries who enroll for the Medicare vania (Mr. SANTORUM) was added as a S. 1495 prescription drug benefit during 2006. cosponsor of S. 1966, a bill to establish At the request of Mr. MCCAIN, the S. 1864 a pilot program to provide grants to name of the Senator from Arizona (Mr. At the request of Mr. BURNS, his encourage eligible institutions of high- KYL) was added as a cosponsor of S. name was added as a cosponsor of S. er education to establish and operate 1495, a bill to prohibit Federal agencies 1864, a bill to amend the Internal Rev- pregnant and parenting student serv- from obligating funds for appropria- enue Code of 1986 to treat certain farm- ices offices for pregnant students, par- tions earmarks included only in con- ing business machinery and equipment enting students, prospective parenting gressional reports, and for other pur- as 5-year property for purposes of de- students who are anticipating a birth poses. preciation. or adoption, and students who are plac- S. 1516 S. 1900 ing or have placed a child for adoption. At the request of Ms. STABENOW, the At the request of Mr. LOTT, the name S. 2084 name of the Senator from Maryland of the Senator from North Dakota (Mr. At the request of Mr. NELSON of Flor- (Ms. MIKULSKI) was added as a cospon- DORGAN) was added as a cosponsor of S. ida, the name of the Senator from sor of S. 1900, a bill to amend title 1516, a bill to reauthorize Amtrak, and Washington (Ms. CANTWELL) was added XVIII of the Social Security Act to sta- for other purposes. as a cosponsor of S. 2084, a bill to direct bilize the amount of the medicare part S. 1524 the Consumer Product Safety Commis- B premium. At the request of Mr. CRAPO, the sion to issue regulations concerning S. 1907 name of the Senator from New Hamp- the safety and labeling of portable gen- At the request of Mr. JOHNSON, the shire (Mr. SUNUNU) was added as a co- erators. name of the Senator from Arkansas sponsor of S. 1524, a bill to repeal the S. 2123 (Mr. PRYOR) was added as a cosponsor sunset on the reduction of capital gains At the request of Mr. ALLARD, the rates for individuals and on the tax- of S. 1907, a bill to promote the devel- opment of Native American small busi- name of the Senator from North Caro- ation of dividends of individuals at cap- lina (Mrs. DOLE) was added as a cospon- ital gain rates. ness concerns, and for other purposes. S. 1915 sor of S. 2123, a bill to modernize the S. 1723 At the request of Mr. ENSIGN, the manufactured housing loan insurance At the request of Ms. COLLINS, the names of the Senator from Michigan program under title I of the National name of the Senator from Rhode Island (Ms. STABENOW), the Senator from Mas- Housing Act. (Mr. REED) was added as a cosponsor of sachusetts (Mr. KERRY), the Senator S. 2128 S. 1723, a bill to amend the Magnuson- from Connecticut (Mr. DODD) and the At the request of Mr. MCCAIN, the Stevens Fishery Conservation and Senator from New Jersey (Mr. MENEN- names of the Senator from Maine (Ms. Management Act to establish a grant DEZ) were added as cosponsors of S. SNOWE), the Senator from Minnesota program to ensure waterfront access 1915, a bill to amend the Horse Protec- (Mr. COLEMAN), the Senator from Flor- for commercial fisherman, and for tion Act to prohibit the shipping, ida (Mr. NELSON) and the Senator from other purposes. transporting, moving, delivering, re- Arizona (Mr. KYL) were added as co- S. 1791 ceiving, possessing, purchasing, selling, sponsors of S. 2128, a bill to provide At the request of Mr. SMITH, the or donation of horses and other equines greater transparency with respect to name of the Senator from Maine (Ms. to be slaughtered for human consump- lobbying activities, and for other pur- SNOWE) was added as a cosponsor of S. tion, and for other purposes. poses. 1791, a bill to amend the Internal Rev- S. 1930 S. 2154 enue Code of 1986 to allow a deduction At the request of Mr. REID, the name At the request of Mr. OBAMA, the for qualified timber gains. of the Senator from Illinois (Mr. DUR- names of the Senator from Indiana S. 1800 BIN) was added as a cosponsor of S. 1930, (Mr. LUGAR), the Senator from Min- At the request of Ms. SNOWE, the a bill to expand the research, preven- nesota (Mr. COLEMAN), the Senator name of the Senator from Alaska (Mr. tion, and awareness activities of the from New York (Mr. SCHUMER) and the STEVENS) was added as a cosponsor of National Institute of Diabetes and Di- Senator from Pennsylvania (Mr. S. 1800, a bill to amend the Internal gestive and Kidney Diseases and the SANTORUM) were added as cosponsors of Revenue Code of 1986 to extend the new Centers for Disease Control and Pre- S. 2154, a bill to provide for the markets tax credit. vention with respect to inflammatory issuance of a commemorative postage S. 1807 bowel disease. stamp in honor of Rosa Parks. At the request of Ms. SNOWE, the S. 1934 At the request of Mr. HAGEL, his name of the Senator from Arkansas At the request of Mr. SPECTER, the name was added as a cosponsor of S. (Mr. PRYOR) was added as a cosponsor name of the Senator from California 2154, supra.

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S. 2158 S. RES. 182 SECTION 1. SHORT TITLE AND TABLE OF CON- TENTS. At the request of Ms. COLLINS, the At the request of Mr. COLEMAN, the name of the Senator from Ohio (Mr. (a) SHORT TITLE.—This Act may be cited as names of the Senator from Maryland the ‘‘Honest Leadership and Open Govern- DEWINE) was added as a cosponsor of S. (Mr. SARBANES), the Senator from ment Act of 2006’’. 2158, a bill to establish a National Delaware (Mr. CARPER) and the Senator (b) TABLE OF CONTENTS.—The table of con- Homeland Security Academy within from Michigan (Ms. STABENOW) were tents for this Act is as follows: the Department of Homeland Security. added as cosponsors of S. Res. 182, a Sec. 1. Short title and table of contents. S. 2170 resolution supporting efforts to in- TITLE I—CLOSING THE REVOLVING At the request of Mr. FRIST, the crease childhood cancer awareness, DOOR name of the Senator from Illinois (Mr. treatment, and research. Sec. 101. Extension of lobbying ban for URBIN D ) was added as a cosponsor of S. S. RES. 236 former Members and employees 2170, a bill to provide for global patho- of Congress and executive At the request of Mr. COLEMAN, the gen surveillance and response. branch officials. names of the Senator from North Caro- S. 2178 Sec. 102. Elimination of floor privileges for lina (Mr. BURR) and the Senator from former Member lobbyists. At the request of Mr. SCHUMER, the Illinois (Mr. DURBIN) were added as co- Sec. 103. Disclosure by Members of Congress names of the Senator from Maine (Ms. sponsors of S. Res. 236, a resolution rec- and senior congressional staff SNOWE), the Senator from North Da- ognizing the need to pursue research of employment negotiations. kota (Mr. DORGAN), the Senator from into the causes, a treatment, and an Sec. 104. Ethics review of employment nego- Washington (Ms. CANTWELL), the Sen- tiations by executive branch of- eventual cure for idiopathic pulmonary ator from Indiana (Mr. BAYH) and the ficials. fibrosis, supporting the goals and Senator from Massachusetts (Mr. Sec. 105. Wrongfully influencing a private ideals of National Idiopathic Pul- KERRY) were added as cosponsors of S. entity’s employment decisions 2178, a bill to make the stealing and monary Fibrosis Awareness Week, and or practices. selling of telephone records a criminal for other purposes. TITLE II—FULL PUBLIC DISCLOSURE OF offense. S. RES. 320 LOBBYING Sec. 201. Quarterly filing of lobbying disclo- S. 2179 At the request of Mr. ENSIGN, the names of the Senator from Maine (Ms. sure reports. At the request of Mr. OBAMA, the Sec. 202. Electronic filing of lobbying disclo- names of the Senator from New York COLLINS) and the Senator from Mary- sure reports. (Mrs. CLINTON), the Senator from Colo- land (Mr. SARBANES) were added as co- Sec. 203. Additional lobbying disclosure re- rado (Mr. SALAZAR), the Senator from sponsors of S. Res. 320, a resolution quirements. Florida (Mr. NELSON) and the Senator calling the President to ensure that Sec. 204. Disclosure of paid efforts to stimu- from New Mexico (Mr. BINGAMAN) were the foreign policy of the United States late grassroots lobbying. added as cosponsors of S. 2179, a bill to reflects appropriate understanding and Sec. 205. Disclosure of lobbying activities by sensitivity concerning issues related to certain coalitions and associa- require openness in conference com- tions. mittee deliberations and full disclosure human rights, ethnic cleansing, and Sec. 206. Disclosure by registered lobbyists of the contents of conference reports genocide documented in the United of past executive and congres- and all other legislation. States record relating to the Armenian sional employment. S. 2180 Genocide. Sec. 207. Creation of a comprehensive public At the request of Mr. REID, the database of lobbying disclosure information. names of the Senator from California f Sec. 208. Conforming amendment. (Mrs. FEINSTEIN) and the Senator from TITLE III—RESTRICTING Washington (Ms. CANTWELL) were STATEMENTS ON INTRODUCED CONGRESSIONAL TRAVEL AND GIFTS added as cosponsors of S. 2180, a bill to BILLS AND JOINT RESOLUTIONS Sec. 301. Ban on gifts from lobbyists. provide more rigorous requirements By Mr. REID (for himself, Mr. Sec. 302. Prohibition on privately funded with respect to disclosure and enforce- travel. DURBIN, Ms. STABENOW, Mr. ment of ethics and lobbying laws and Sec. 303. Prohibiting lobbyist organization regulations, and for other purposes. SCHUMER, Mr. AKAKA, Mr. BAU- and participation in congres- At the request of Mr. JEFFORDS, his CUS, Mr. BAYH, Mr. BIDEN, Mr. sional travel. name was added as a cosponsor of S. BINGAMAN, Mrs. BOXER, Mr. Sec. 304. Disclosure of noncommercial air 2180, supra. CARPER, Mrs. CLINTON, Mr. CON- travel. Sec. 305. Per diem expenses for congres- At the request of Mr. NELSON of Flor- RAD, Mr. DAYTON, Mr. DORGAN, sional travel. ida, his name was added as a cosponsor Mr. FEINGOLD, Mr. HARKIN, Mr. of S. 2180, supra. JOHNSON, Mr. KENNEDY, Mr. TITLE IV—ENFORCEMENT OF LOBBYING RESTRICTIONS At the request of Mr. SARBANES, his KERRY, Mr. KOHL, Mr. LAUTEN- name was added as a cosponsor of S. BERG, Mr. LEAHY, Mr. LEVIN, Sec. 401. Senate Office of Public Integrity. Sec. 402. Increased civil and criminal pen- Mr. LIEBERMAN, Mrs. LINCOLN, 2180, supra. alties for failure to comply Mr. MENENDEZ, Ms. MIKULSKI, S. 2183 with lobbying disclosure re- At the request of Mr. ROCKEFELLER, Mrs. MURRAY, Mr. OBAMA, Mr. quirements. the names of the Senator from Illinois REED, Mr. ROCKEFELLER, Mr. Sec. 403. Penalty for false certification in (Mr. OBAMA), the Senator from Cali- SALAZAR, Mr. WYDEN, and Mr. connection with congressional fornia (Mrs. FEINSTEIN) and the Sen- INOUYE): travel. Sec. 404. Mandatory annual ethics training ator from New Jersey (Mr. MENENDEZ) S. 2180. A bill to provide more rig- for congressional employees. were added as cosponsors of S. 2183, a orous requirements with respect to dis- bill to provide for necessary bene- closure and enforcement of ethics and TITLE V—OPEN GOVERNMENT ficiary protections in order to ensure lobbying laws and regulations, and for Sec. 501. Sense of the Senate on conference access to coverage under the Medicare other purposes; to the Committee on committee protocols. Homeland Security and Governmental Sec. 502. Actual voting required in con- part D prescription drug program. ference committee meetings. S. CON. RES. 69 Affairs. Sec. 503. Availability of conference reports At the request of Mr. ISAKSON, the ∑ Mr. REID. Mr. President, I ask unan- on the internet. names of the Senator from Georgia imous consent that the text of the bill TITLE I—CLOSING THE REVOLVING DOOR ∑ (Mr. CHAMBLISS) and the Senator from be printed in the RECORD. SEC. 101. EXTENSION OF LOBBYING BAN FOR Minnesota (Mr. COLEMAN) were added There being no objection, the bill was FORMER MEMBERS AND EMPLOY- as cosponsors of S. Con. Res. 69, a con- ordered to be printed in the RECORD, as EES OF CONGRESS AND EXECUTIVE current resolution supporting the goals follows: BRANCH OFFICIALS. Section 207 of title 18, United States Code, and ideals of a Day of Hearts, Con- S. 2180 is amended— genital Heart Defect Day in order to Be it enacted by the Senate and House of Rep- (1) in subsection (c)— increase awareness about congenital resentatives of the United States of America in (A) in the subsection heading, by striking heart defects, and for other purposes. Congress assembled, ‘‘One-year’’ and inserting ‘‘Two-year’’;

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00092 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S127 (B) in paragraph (1), by striking ‘‘1 year’’ which the Office of Government Ethics (B) in paragraph (2), by striking ‘‘semi- and inserting ‘‘2 years’’ in both places it ap- makes a determination granting an exemp- annual filing period’’ and inserting ‘‘quar- pears; and tion under subsection (b)(1) or (b)(3) to a per- terly period’’; (C) in paragraph (2)(B), by striking ‘‘1-year son, the Office shall, not later than 3 busi- (C) in paragraph (3), by striking ‘‘semi- period’’ and inserting ‘‘2-year period;’’ ness days after making such determination, annual period’’ and inserting ‘‘quarterly pe- (2) in subsection (d)— make available to the public pursuant to the riod’’; and (A) in paragraph (1), by striking ‘‘1 year’’ procedures set forth in section 105 of the (D) in paragraph (4), by striking ‘‘semi- and inserting ‘‘2 years’’; and Ethics in Government Act of 1978, and pub- annual filing period’’ and inserting ‘‘quar- (B) in paragraph (2)(A), by striking ‘‘1 lish in the Federal Register, such determina- terly period’’. year’’ and inserting ‘‘2 years’’; and tion and the materials submitted by such (b) CONFORMING AMENDMENTS.— (3) in subsection (e)— person in requesting such exemption.’’; and (1) DEFINITION.—Section 3(10) of the Lob- (A) in paragraph (1)(A), by striking ‘‘1 (B) by striking ‘‘the agency may withhold’’ bying Disclosure Act of 1995 (2 U.S.C. 1602) is year’’ and inserting ‘‘2 years’’; and inserting ‘‘the Office of Government amended by striking ‘‘six month period’’ and (B) in paragraph (2)(A), by striking ‘‘1 Ethics may withhold’’. inserting ‘‘three-month period’’. year’’ and inserting ‘‘2 years’’; SEC. 105. WRONGFULLY INFLUENCING A PRIVATE (2) REGISTRATION.—Section 4 of the Lob- (C) in paragraph (3), by striking ‘‘1 year’’ ENTITY’S EMPLOYMENT DECISIONS bying Disclosure Act of 1995 (2 U.S.C. 1603) is and inserting ‘‘2 years’’; OR PRACTICES. amended— (D) in paragraph (4), by striking ‘‘1 year’’ (a) IN GENERAL.—Chapter 11 of title 18, (A) in subsection (a)(3)(A), by striking and inserting ‘‘2 years’’; United States Code, is amended by adding at ‘‘semiannual period’’ and inserting ‘‘quar- (E) in paragraph (5)(A), by striking ‘‘1 the end the following: terly period’’; and year’’ and inserting ‘‘2 years’’; and ‘‘§ 226. Wrongfully influencing a private enti- (B) in subsection (b)(3)(A), by striking (F) in paragraph (6), by striking ‘‘1-year pe- ty’s employment decisions by a Member of ‘‘semiannual period’’ and inserting ‘‘quar- riod’’ and inserting ‘‘2-year period’’. Congress terly period’’. SEC. 102. ELIMINATION OF FLOOR PRIVILEGES ‘‘Whoever, being a Senator or Representa- (3) ENFORCEMENT.—Section 6 of the Lob- FOR FORMER MEMBER LOBBYISTS. tive in, or a Delegate or Resident Commis- bying Disclosure Act of 1995 (2 U.S.C. 1605) is Rule XXIII of the Standing Rules of the sioner to, the Congress or an employee of ei- amended in paragraph (6) by striking ‘‘semi- Senate is amended by inserting after ‘‘Ex- ther House of Congress, with the intent to annual period’’ and inserting ‘‘quarterly pe- Senators and Senators elect’’ the following: influence on the basis of partisan political riod’’. ‘‘, except for any ex-Senator or Senator elect affiliation an employment decision or em- (4) ESTIMATES.—Section 15 of the Lobbying who is a registered lobbyist’’. ployment practice of any private entity— Disclosure Act of 1995 (2 U.S.C. 1610) is SEC. 103. DISCLOSURE BY MEMBERS OF CON- ‘‘(1) takes or withholds, or offers or threat- amended— GRESS AND SENIOR CONGRES- ens to take or withhold, an official act; or (A) in subsection (a)(1), by striking ‘‘semi- SIONAL STAFF OF EMPLOYMENT NE- ‘‘(2) influences, or offers or threatens to in- annual period’’ and inserting ‘‘quarterly pe- GOTIATIONS. fluence, the official act of another; riod’’; and (a) SENATE.—Rule XXXVII of the Standing shall be fined under this title or imprisoned (B) in subsection (b)(1), by striking ‘‘semi- Rules of the Senate is amended by adding at for not more than 15 years, or both, and may annual period’’ and inserting ‘‘quarterly pe- the end the following: be disqualified from holding any office of riod’’. ‘‘13. (a) A Member of the Senate or an em- honor, trust, or profit under the United (5) DOLLAR AMOUNTS.— ployee of the Senate earning in excess of 75 States.’’. (A) Section 4 of the Lobbying Disclosure percent of the salary paid to a Senator shall (b) NO INFERENCE.—Nothing in section 226 Act of 1995 (2 U.S.C. 1603) is amended— notify the Committee on Ethics that he or of title 18, United States Code, as added by (i) in subsection (a)(3)(A)(i), by striking she is negotiating or has any arrangement this section, shall be construed to create any ‘‘$5,000’’ and inserting ‘‘$2,500’’; concerning prospective private employment inference with respect to whether the activ- (ii) in subsection (a)(3)(A)(ii), by striking if a conflict of interest or the appearance of ity described in section 226 of title 18, United ‘‘$20,000’’ and inserting ‘‘$10,000’’; a conflict of interest may exist. States Code, was already a criminal or civil (iii) in subsection (b)(3)(A), by striking ‘‘(b) The disclosure and notification under offense prior to the enactment of this Act, ‘‘$10,000’’ and inserting ‘‘$5,000’’; and subparagraph (a) shall be made within 3 busi- including sections 201(b), 201(c), and 216 of (iv) in subsection (b)(4), by striking ness days after the commencement of such title 18, United States Code. ‘‘$10,000’’ and inserting ‘‘$5,000’’. negotiation or arrangement. (c) CHAPTER ANALYSIS.—The chapter anal- (B) Section 5 of the Lobbying Disclosure ‘‘(c) A Member or employee to whom this ysis for chapter 11 of title 18, United States Act of 1995 (2 U.S.C. 1604) is amended— rule applies shall recuse himself or herself Code, is amended by adding at the end the (i) in subsection (c)(1), by striking from any matter in which there is a conflict following: ‘‘$10,000’’ and ‘‘$20,000’’ and inserting ‘‘$5,000’’ of interest for that Member or employee ‘‘226. Wrongfully influencing a private enti- and ‘‘$10,000’’, respectively; and under this rule and notify the Select Com- ty’s employment decisions by a (ii) in subsection (c)(2), by striking mittee on Ethics of such recusal. Member of Congress.’’. ‘‘(d)(1) The Select Committee on Ethics ‘‘$10,000’’ both places such term appears and shall develop guidelines concerning conduct (d) SENATE RULES.—Rule XLIII of the inserting ‘‘$5,000’’. which is covered by this paragraph. Standing Rules of the Senate is amended by SEC. 202. ELECTRONIC FILING OF LOBBYING DIS- ‘‘(2) The Select Committee on Ethics shall adding at the end the following: CLOSURE REPORTS. maintain a current public record of all noti- ‘‘6. No Member shall, with the intent to in- Section 5 of the Lobbying Disclosure Act of fications received under subparagraph (a) fluence on the basis of partisan political af- 1995 (2 U.S.C. 1604) is amended by adding at and of all recusals under subparagraph (c).’’. filiation an employment decision or employ- the end the following: ment practice of any private entity— SEC. 104. ETHICS REVIEW OF EMPLOYMENT NE- ‘‘(d) ELECTRONIC FILING REQUIRED.—A re- GOTIATIONS BY EXECUTIVE BRANCH ‘‘(1) take or withhold, or offer or threaten port required to be filed under this section OFFICIALS. to take or withhold, an official act; or shall be filed in electronic form, in addition Section 208 of title 18, United States Code, ‘‘(2) influence, or offer or threaten to influ- to any other form that may be required by is amended— ence, the official act of another.’’. the Secretary of the Senate or the Clerk of (1) in subsection (b)(1)— TITLE II—FULL PUBLIC DISCLOSURE OF the House of Representatives. The Secretary (A) by inserting after ‘‘the Government of- LOBBYING of the Senate and the Clerk of the House of ficial responsible for appointment to his or SEC. 201. QUARTERLY FILING OF LOBBYING DIS- Representatives shall provide for public ac- her position’’ the following: ‘‘and the Office CLOSURE REPORTS. cess to such reports on the Internet.’’. of Government Ethics’’; and (a) QUARTERLY FILING REQUIRED.—Section SEC. 203. ADDITIONAL LOBBYING DISCLOSURE (B) by striking ‘‘a written determination 5 of the Lobbying Disclosure Act of 1995 (2 REQUIREMENTS. made by such official’’ and inserting ‘‘a writ- U.S.C. 1604) is amended— (a) DISCLOSURE OF CONTRIBUTIONS AND PAY- ten determination made by the Office of (1) in subsection (a)— MENTS.—Section 5(b) of the Lobbying Disclo- Government Ethics, after consultation with (A) by striking ‘‘Semiannual’’ and insert- sure Act of 1995 (2 U.S.C. 1604(b)) is amend- such official,’’; and ing ‘‘Quarterly’’; ed— (2) in subsection (b)(3), by striking ‘‘the of- (B) by striking ‘‘the semiannual period’’ (1) in paragraph (5), as added by section ficial responsible for the employee’s appoint- and all that follows through ‘‘July of each 204(c), by striking the period and inserting a ment, after review of’’ and inserting ‘‘the Of- year’’ and insert ‘‘the quarterly period begin- semicolon; and fice of Government Ethics, after consulta- ning on the first days of January, April, (2) by adding at the end the following: tion with the official responsible for the em- July, and October of each year’’; and ‘‘(6) for each registrant (and for any polit- ployee’s appointment and after review of’’; (C) by striking ‘‘such semiannual period’’ ical committee, as defined in section 301(4) of and and insert ‘‘such quarterly period’’; and the Federal Election Campaign Act of 1971 (2 (3) in subsection (d)(1)— (2) in subsection (b)— U.S.C. 431(4)), affiliated with such registrant) (A) by striking ‘‘Upon request’’ and all (A) in the matter preceding paragraph (1), and for each employee listed as a lobbyist by that follows through ‘‘Ethics in Government by striking ‘‘semiannual report’’ and insert- a registrant under paragraph 2(C), the name Act of 1978.’’ and inserting ‘‘In each case in ing ‘‘quarterly report’’; of each Federal candidate or officeholder,

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leadership PAC, or political party com- (c) SEPARATE ITEMIZATION OF PAID EFFORTS ‘‘No disclosure is required under paragraph mittee, to whom a contribution was made, TO STIMULATE GRASSROOTS LOBBYING.—Sec- (3)(B) if it is publicly available knowledge and the amount of such contribution; and tion 5(b) of the Act (2 U.S.C. 1604(b)) is that the organization that would be identi- ‘‘(7) a certification that the lobbying firm amended— fied is affiliated with the client or has been or registrant has not provided, requested, or (1) in paragraph (3), by— publicly disclosed to have provided funding directed a gift, including travel, to a Member (A) inserting after ‘‘total amount of all in- to the client, unless the organization in or employee of Congress in violation of rule come’’ the following: ‘‘(including a separate whole or in major part plans, supervises or XXXV of the Standing Rules of the Senate.’’. good faith estimate of the total amount re- controls such lobbying activities. Nothing in (b) LEADERSHIP PAC.—Section 3 of the Lob- lating specifically to paid efforts to stimu- paragraph (3)(B) shall be construed to re- bying Disclosure Act of 1995 (2 U.S.C. 1602) is late grassroots lobbying and, within that quire the disclosure of any information amended by adding at the end the following: amount, a good faith estimate of the total about individuals who are members of, or do- ‘‘(17) LEADERSHIP PAC.—The term ‘leader- amount specifically relating to paid adver- nors to, an entity treated as a client by this ship PAC’ means an unauthorized multi- tising)’’; and Act or an organization identified under that candidate political committee that is estab- (B) striking ‘‘and’’ after the semicolon; paragraph.’’. lished, financed, maintained, and controlled (2) in paragraph (4), by— SEC. 206. DISCLOSURE BY REGISTERED LOBBY- by an individual who is a Federal office- (A) inserting after ‘‘total expenses’’ the ISTS OF PAST EXECUTIVE AND CON- holder or a candidate for Federal office.’’. following: ‘‘(including a good faith estimate GRESSIONAL EMPLOYMENT. (c) FULL AND DETAILED ACCOUNTING.—Sec- of the total amount relating specifically to Section 4(b)(6) of the Lobbying Disclosure tion 5(c)(1) of the Lobbying Disclosure Act of paid efforts to stimulate grassroots lobbying Act of 1995 (2 U.S.C. 1603(b)(6)) is amended by 1995 (2 U.S.C. 1604(c)(1)) is amended by strik- and, within that total amount, a good faith striking ‘‘or a covered legislative branch of- ing ‘‘shall be rounded to the nearest $20,000’’ estimate of the total amount specifically re- ficial’’ and all that follows through ‘‘as a and inserting ‘‘shall be rounded to the near- lating to paid advertising)’’; and lobbyist on behalf of the client,’’ and insert- est $1,000’’. (B) striking the period and inserting a ing ‘‘or a covered legislative branch offi- SEC. 204. DISCLOSURE OF PAID EFFORTS TO semicolon; cial,’’. STIMULATE GRASSROOTS LOB- (3) by adding at the end the following: SEC. 207. CREATION OF A COMPREHENSIVE PUB- BYING. ‘‘(5) in the case of a grassroots lobbying LIC DATABASE OF LOBBYING DIS- (a) DISCLOSURE OF PAID EFFORTS TO STIMU- firm, for each client— CLOSURE INFORMATION. LATE GRASSROOTS LOBBYING.—Section 3 of ‘‘(A) a good faith estimate of the total dis- (a) DATABASE REQUIRED.—Section 6 of the the Lobbying Disclosure Act of 1995 (2 U.S.C. Lobbying Disclosure Act of 1995 (2 U.S.C. 1602) is amended— bursements made for grassroots lobbying ac- tivities, and a subtotal for disbursements 1605) is amended— (1) in paragraph (7), by adding at the end (1) in paragraph (7), by striking ‘‘and’’ at the following: ‘‘Lobbying activities include made for grassroots lobbying through paid advertising; the end; paid efforts to stimulate grassroots lobbying, (2) in paragraph (8), by striking the period but do not include grassroots lobbying.’’; and ‘‘(B) identification of each person or entity other than an employee who received a dis- at the end and inserting ‘‘; and’’; and (2) by adding at the end the following: (3) by adding at the end the following new ‘‘(18) GRASSROOTS LOBBYING.—The term bursement of funds for grassroots lobbying activities of $10,000 or more during the period paragraph: ‘grassroots lobbying’ means the voluntary ‘‘(9) maintain, and make available to the efforts of members of the general public to and the total amount each person or entity received; and public over the Internet, without a fee or communicate their own views on an issue to other access charge, in a searchable and Federal officials or to encourage other mem- ‘‘(C) if such disbursements are made through a person or entity who serves as an downloadable manner, an electronic data- bers of the general public to do the same. base that includes the information contained ‘‘(19) PAID EFFORTS TO STIMULATE GRASS- intermediary or conduit, identification of each such intermediary or conduit, identi- in registrations and reports filed under this ROOTS LOBBYING.—The term ‘paid efforts to Act.’’. stimulate grassroots lobbying’— fication of the person or entity who receives the funds, and the total amount each such (b) AVAILABILITY OF REPORTS.—Section 6(4) ‘‘(A) means any paid attempt to influence of the Lobbying Disclosure Act of 1995 is the general public, or segments thereof, to person or entity received.’’; and (4) by adding at the end the following: amended by inserting before the semicolon engage in grassroots lobbying or lobbying at the end the following: ‘‘and, in the case of ‘‘Subparagraphs (B) and (C) of paragraph (2) contacts; and a report filed in electronic form pursuant to shall not apply with respect to reports relat- ‘‘(B) does not include any attempt de- section 5(d), shall make such report avail- ing to paid efforts to stimulate grassroots scribed in subparagraph (A) by a person or able for public inspection over the Internet lobbying activities.’’. entity directed to its members, employees, not more than 48 hours after the report is so (d) LARGE GRASSROOTS EXPENDITURE.—Sec- officers or shareholders, unless such attempt filed’’. tion 5(a) of the Act (2 U.S.C. 1604(a)) is is financed with funds directly or indirectly (c) AUTHORIZATION OF APPROPRIATIONS.— received from or arranged by a lobbyist or amended— There are authorized to be appropriated such other registrant under this Act retained by (1) by striking ‘‘No later’’ and inserting: sums as may be necessary to carry out sec- another person or entity. ‘‘(1) IN GENERAL.—Except as provided in tion 6(9) of the Lobbying Disclosure Act of ‘‘(20) GRASSROOTS LOBBYING FIRM.—The paragraph (2), not later’’; and 1995, as added by subsection (a). term ‘grassroots lobbying firm’ means a per- (2) by adding at the end the following: SEC. 208. CONFORMING AMENDMENT. ‘‘(2) LARGE GRASSROOTS EXPENDITURE.—A son or entity that— The requirements of this Act shall not registrant that is a grassroots lobbying firm ‘‘(A) is retained by 1 or more clients to en- apply to the activities of any political com- and that receives income of, or spends or gage in paid efforts to stimulate grassroots mittee described in section 301(4) of the Fed- agrees to spend, an aggregate amount of lobbying on behalf of such clients; and eral Election Campaign Act of 1971. ‘‘(B) receives income of, or spends or agrees $250,000 or more on paid efforts to stimulate to spend, an aggregate of $50,000 or more for grassroots lobbying for a client, or for a TITLE III—RESTRICTING CONGRESSIONAL such efforts in any quarterly period.’’. group of clients for a joint effort, shall file— TRAVEL AND GIFTS (b) REGISTRATION.—Section 4(a) of the Act ‘‘(A) a report under this section not later SEC. 301. BAN ON GIFTS FROM LOBBYISTS. (2 U.S.C. 1603(a)) is amended— than 20 days after receiving, spending, or (a) IN GENERAL.—Paragraph 1(a)(2) of rule (1) in paragraph (1), by striking ‘‘45’’ and agreeing to spend that amount; and XXXV of the Standing Rules of the Senate is inserting ‘‘20’’; ‘‘(B) an additional report not later than 20 amended by adding at the end the following: (2) in the flush matter at the end of para- days after each time such registrant receives ‘‘This clause shall not apply to a gift from a graph (3)(A)— income of, or spends or agrees to spend, an lobbyist.’’. (A) by striking ‘‘as estimated’’ and insert- aggregate amount of $250,000 or more on paid (b) RULES COMMITTEE REVIEW.—The Com- ing ‘‘as included’’; and efforts to stimulate grassroots lobbying for a mittee on Rules and Administration shall re- (B) by adding at the end the following: client, or for a group of clients for a joint ef- view the present exceptions to the Senate ‘‘For purposes of clauses (i) and (ii) the term fort.’’. gift rule and make recommendations to the ‘lobbying activities’ shall not include paid SEC. 205. DISCLOSURE OF LOBBYING ACTIVITIES Senate not later than 3 months after the efforts to stimulate grassroots lobbying.’’; BY CERTAIN COALITIONS AND ASSO- date of enactment of this Act on eliminating (3) by redesignating paragraph (3) as para- CIATIONS. all but those which are absolutely necessary graph (4); and (a) IN GENERAL.—Section 4(b)(3)(B) of the to effectuate the purpose of the rule. (4) by inserting after paragraph (2) the fol- Lobbying Disclosure Act of 1995 (2 U.S.C. SEC. 302. PROHIBITION ON PRIVATELY FUNDED lowing: 1603(b)(3)(B)) is amended to read as follows: TRAVEL. ‘‘(3) GRASSROOTS LOBBYING FIRMS.—Not ‘‘(B) participates in the planning, super- Paragraph 2(a)(1) of rule XXXV of the later than 20 days after a grassroots lobbying vision or control of such lobbying activi- Standing Rules of the Senate is amended by firm first is retained by a client to engage in ties;’’. striking ‘‘an individual’’ and inserting ‘‘an paid efforts to stimulate grassroots lobbying, (b) NO DONOR OR MEMBERSHIP LIST DISCLO- organization recognized under section such grassroots lobbying firm shall register SURE.—Section 4(b) of the Lobbying Disclo- 501(c)(3) of the Internal Revenue Code of 1986 with the Secretary of the Senate and the sure Act of 1995 (2 U.S.C. 1603(b)) is amended that is not affiliated with any group that Clerk of the House of Representatives.’’. by adding at the end the following: lobbies before Congress’’.

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00094 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S129 SEC. 303. PROHIBITING LOBBYIST ORGANIZA- tures’ for purposes of this rule. In developing this Act, the Office of Public Records of the TION AND PARTICIPATION IN CON- and revising the guidelines, the committee Senate shall transfer all authority and GRESSIONAL TRAVEL. shall take into account the maximum per records of that office to the Senate Office of (a) IN GENERAL.—Paragraph 2 of rule diem rates for official Government travel Public Integrity. XXXV of the Standing Rules of the Senate is published annually by the General Services (g) CONFORMING AMENDMENTS.— amended by adding at the end the following: Administration, the Department of State, (1) NEW OFFICE.—Section 6 of the Lobbying ‘‘(g) A Member, officer, or employee may and the Department of Defense.’’. Disclosure Act of 1995 (2 U.S.C. 1605) is not accept transportation or lodging on any amended by striking ‘‘Secretary of the Sen- TITLE IV—ENFORCEMENT OF LOBBYING trip sponsored by an organization recognized ate’’ and inserting ‘‘Senate Office of Public RESTRICTIONS under section 501(c)(3) of the Internal Rev- Integrity’’. enue Code of 1986 covered by this paragraph SEC. 401. SENATE OFFICE OF PUBLIC INTEGRITY. (2) AUDIT AUTHORITY.—Section 8 of the Lob- that is planned, organized, requested, ar- (a) ESTABLISHMENT.—There is established bying Disclosure Act of 1995 (2 U.S.C. 1607) is ranged, or financed in whole, or in part by a in the Senate an office to be known as the amended by striking subsection (c). lobbyist or foreign agent, or in which a lob- ‘‘Senate Office of Public Integrity’’ (referred (h) AUTHORIZATION OF APPROPRIATIONS.— byist participates. to in this section as the ‘‘Office’’), which There are authorized to be appropriated in a ‘‘(h) Before a Member, officer, or employee shall be headed by a Senate Director of Pub- separate account such sums as are necessary may accept transportation or lodging other- lic Integrity (hereinafter referred to as the to carry out this section. wise permissible under this paragraph from ‘‘Director’’). SEC. 402. INCREASED CIVIL AND CRIMINAL PEN- any person, such Member, officer, or em- (b) OFFICE.—The Office shall receive lobby- ALTIES FOR FAILURE TO COMPLY ployee shall obtain a written certification ists’ disclosures on behalf of the Senate WITH LOBBYING DISCLOSURE RE- QUIREMENTS. from such person (and provide a copy of such under the Lobbying Disclosure Act of 1995 and conduct such audits and investigations Section 7 of the Lobbying Disclosure Act of certification to the Select Committee on 1995 (2 U.S.C. 1606) is amended— Ethics) that— as are necessary to ensure compliance with the Act. (1) by inserting ‘‘ (a) CIVIL PENALTY.—’’ be- ‘‘(1) the trip was not planned, organized, fore ‘‘Whoever’’; requested, arranged, or financed in whole, or (c) REFERRAL AUTHORITY.—The Office shall have authority to refer violations of the Lob- (2) by striking ‘‘$50,000’’ and inserting in part by a registered lobbyist or foreign ‘‘$100,000’’; and agent and was not organized at the request bying Disclosure Act of 1995 to the Select Committee on Ethics and the Department of (3) by adding at the end the following: of a registered lobbyist or foreign agent; ‘‘(b) CRIMINAL PENALTY.— ‘‘(2) registered lobbyists will not partici- Justice for disciplinary action. (d) DIRECTOR.— ‘‘(1) IN GENERAL.—Whoever knowingly and pate in or attend the trip; and wilfully fails to comply with any provision of ‘‘(3) the person did not accept, from any (1) IN GENERAL.—The Director shall be ap- pointed by the President pro tempore of the this section shall be imprisoned for not more source, funds specifically earmarked for the than 5 years, or fined under title 18, United purpose of financing the travel expenses. Senate from among recommendations sub- mitted by the majority and minority leaders States Code, or both. The Select Committee on Ethics shall make of the Senate. Any appointment made under ‘‘(2) CORRUPTLY.—Whoever knowingly, public information received under this sub- this subsection shall be made without regard wilfully, and corruptly fails to comply with paragraph as soon as possible after it is re- to political affiliation and solely on the basis any provision of this section shall be impris- oned for not more than 10 years, or fined ceived.’’. of fitness to perform the duties of the posi- under title 18, United States Code, or both.’’. (b) CONFORMING AMENDMENTS.—Paragraph tion. Any person appointed as Director shall 2(c) of rule XXXV of the Standing Rules of be learned in the law, a member of the bar of SEC. 403. PENALTY FOR FALSE CERTIFICATION the Senate is amended— IN CONNECTION WITH CONGRES- a State or the District of Columbia, and SIONAL TRAVEL. (1) by striking ‘‘of expenses reimbursed or shall not engage in any other business, voca- to be reimbursed’’; (a) CIVIL FINE.— tion, or employment during the term of such (1) IN GENERAL.—Whoever makes a false (2) in clause (5), by striking ‘‘and’’ after appointment. the semicolon; certification in connection with the travel of (2) OVERSIGHT.—The Director shall report a Member, officer, or employee of either (3) in clause (6), by striking the period and to a joint leadership group consisting of the inserting ‘‘; and’’; and House of Congress (within the meaning given President pro tempore, the Majority Leader, those terms in section 207 of title 18, United (4) by adding at the end the following: and the Minority Leader. ‘‘(7) a description of meetings and events States Code), under paragraph 2(h) of rule (3) TERMS OF SERVICE.—Any appointment XXXV of the Standing Rules of the Senate, attended during such travel, except when made under paragraph (1) shall become effec- shall, upon proof of such offense by a prepon- disclosure of such information is deemed by tive upon approval by resolution of the Sen- derance of the evidence, be subject to a civil the Member or supervisor under whose direct ate. The Director shall be appointed for a fine depending on the extent and gravity of supervision the employee works to jeop- term of service which shall expire at the end the violation. ardize the safety of an individual or other- of the Congress following the Congress dur- (2) MAXIMUM FINE.—The maximum fine per wise interfere with the official duties of the ing which the Director is appointed except offense under this section depends on the Member, officer, or employee.’’. that the Senate may, by resolution, remove number of separate trips in connection with (c) PUBLIC AVAILABILITY.—Paragraph 2(e) Director prior to the termination of any which the person committed an offense of rule XXXV is amended to read as follows: term of service. The Director may be re- under this subsection, as follows: ‘‘(e) The Secretary of the Senate shall appointed at the termination of any term of (A) FIRST TRIP.—For each offense com- make available to the public all advance au- service. mitted in connection with the first such trip, thorizations, certifications, and disclosures (4) COMPENSATION.—The Director shall re- the amount of the fine shall be not more filed pursuant to subparagraphs (a) and (h) ceive compensation at a rate equal to the an- than $100,000 per offense. as soon as possible after they are received.’’. nual rate of basic pay for level III of the Ex- (B) SECOND TRIP.—For each offense com- SEC. 304. DISCLOSURE OF NONCOMMERCIAL AIR ecutive Schedule under section 5314 of title 5, mitted in connection with the second such TRAVEL. United States Code . trip, the amount of the fine shall be not A Member, officer, or employee of the Sen- (5) STAFF.—The Director shall hire such more than $300,000 per offense. ate shall— additional staff as are required to carry out (C) ANY OTHER TRIPS.—For each offense (1) disclose a flight on an aircraft that is this section, including investigators and ac- committed in connection with any such trip not licensed by the Federal Aviation Admin- countants. after the second, the amount of the fine shall istration to operate for compensation or (e) AUDITS AND INVESTIGATIONS.— be not more than $500,000 per offense. hire, taken in connection with the duties of (1) IN GENERAL.—The Office shall audit lob- (3) ENFORCEMENT.—The Attorney General the Member, officer, or employee as an of- bying registrations and reports filed pursu- may bring an action in United States dis- ficeholder or Senate officer or employee; and ant to the Lobbying Disclosure Act of 1995 to trict court to enforce this subsection. (2) with respect to the flight, file a report determine the extent of compliance or non- (b) CRIMINAL PENALTY.— with the Secretary of the Senate, including compliance with the requirements of such (1) IN GENERAL.—Whoever knowingly and the date, destination, and owner or lessee of Act by lobbyists and their clients. wilfully fails to comply with any provision of the aircraft and the purpose of the trip. (2) EVIDENCE OF NON-COMPLIANCE.—If in the this section shall be imprisoned for not more SEC. 305. PER DIEM EXPENSES FOR CONGRES- course an audit conducted pursuant to the than 5 years, or fined under title 18, United SIONAL TRAVEL. requirements of paragraph (1), the Office ob- States Code, or both. (a) SENATE.—Rule XXXV of the Standing tains information indicating that a person or (2) CORRUPTLY.—Whoever knowingly, Rules of the Senate is amended by adding at entity may be in non-compliance with the wilfully, and corruptly fails to comply with the end the following: requirements of the Lobbying Disclosure Act any provision of this section shall be impris- ‘‘7. Not later than 90 days after the date of of 1995, the Office shall refer the matter to oned for not more than 10 years, or fined adoption of this paragraph and at annual in- the Select Committee on Ethics or the under title 18, United States Code, or both. tervals thereafter, the Committee on Rules United States Attorney for the District of SEC. 404. MANDATORY ANNUAL ETHICS TRAIN- and Administration shall develop and revise, Columbia, as appropriate ING FOR CONGRESSIONAL EMPLOY- as necessary, guidelines on what constitutes (f) TRANSFER OF RECORDS.—On the date EES. ‘reasonable expenses’ or ‘reasonable expendi- that is 90 days after the date of enactment of (a) ETHICS TRAINING.—

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00095 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S130 CONGRESSIONAL RECORD — SENATE January 25, 2006 (1) IN GENERAL.—The Committee on Ethics Reimbursement Act along with my col- Directs the Secretary of HHS to re- shall provide annual ethics training to each leagues, Senators SNOWE, SCHUMER, cover overpayments by states to pri- employee of the Senate which shall include COLEMAN, FEINSTEIN, PRYOR, DEWINE, vate prescription drug plans and return knowledge of the Official Code of Conduct BOXER, MENENDEZ, COLLINS, DAYTON, that money to the Medicare Trust and related Senate rules. REED, JEFFORDS, LINCOLN, LEAHY, (2) SECRETARY OF THE SENATE.—The Sec- Fund. retary of the Senate shall assist the Com- WYDEN, STABENOW, JOHNSON, KENNEDY, This is not just about access to the mittee on Ethics in providing training re- DORGAN, LIEBERMAN, CLINTON, CHAFEE Federal entitlement program—it’s quired by this subsection. and DODD. about life and death. (3) NEW EMPLOYEES.—A new employee of There have been many difficulties I urge my colleagues on both sides of the Senate shall receive training under this surrounding implementation of the the aisle to support this legislation and section not later than 60 days after begin- Medicare prescription drug benefit, move for its immediate passage. ning service to the Senate. however, few have experienced the se- I ask unanimous consent that the (b) CERTIFICATION.—Not later than January verity of the problems that those who text of the bill be printed in the 31 of each year, each employee of the Senate are dually eligible for both Medicare RECORD.∑ shall file a certification with the Committee There being no objection the bill was on Ethics that the employee attended ethics and Medicaid have faced. training in the last year as established by ‘‘Dual Eligibles’’ are the Nation’s ordered to be printed in the RECORD, as this section. poorest seniors and the disabled. Many follows: TITLE V—OPEN GOVERNMENT suffer from multiple, chronic, debili- S. 2181 tating conditions and on average take SEC. 501. SENSE OF THE SENATE ON CON- Be it enacted by the Senate and House of Rep- FERENCE COMMITTEE PROTOCOLS. between five and ten medications per resentatives of the United States of America in It is the sense of Senate that— day. Missing even one dose of medica- Congress assembled, (1) conference committees should hold reg- tion could result in a life threatening SECTION 1. SHORT TITLE. ular, formal meetings of all conferees that situation. This Act may be cited as the ‘‘Medicare are open to the public; Across America, countless bene- State Reimbursement Act of 2006’’. (2) all conferees should be given adequate ficiaries who tried to have their pre- SEC. 2. FEDERAL RESPONSIBILITY FOR STATE notice of the time and place of all such meet- scriptions filled for the first time under PRESCRIPTION DRUG EXPENDI- ings; TURES FOR COVERED PART D the new system were told that their en- DRUGS FOR MEDICARE BENE- (3) all conferees should be afforded an op- rollment could not be verified, their FICIARIES. portunity to participate in full and complete Section 1935(c) of the Social Security Act debates of the matters that such conference drugs were not covered, or they would be charged larger co-payments or (42 U.S.C. 1396v(c)) is amended— committees may recommend to their respec- (1) in paragraph (1)(A), by striking ‘‘Each tive Houses; deductibles than they could afford. As a result, many were at risk of not re- of the 50 States’’ and inserting ‘‘Subject to (4) all matters before a conference com- paragraph (7), each of the 50 States’’; and mittee should be resolved in conference by ceiving lifesaving prescription drugs. (2) by adding at the end the following new votes on the public record; and Regardless of how Senators voted on paragraph: (5) existing rules should be enforced and the Medicare Drug bill, I think all Sen- ‘‘(7) OFFSET FOR STATE PRESCRIPTION DRUG new rules adopted in the Senate to shine the ators can agree on one thing: the flaws EXPENDITURES FOR COVERED PART D DRUGS light on special interest legislation that is in the startup of this program are un- FOR MEDICARE BENEFICIARIES.— enacted in the dead of night. acceptable. ‘‘(A) IN GENERAL.—The amount of payment SEC. 502. ACTUAL VOTING REQUIRED IN CON- Fortunately, a number of States in- for a month (beginning with January 2006) FERENCE COMMITTEE MEETINGS. cluding New Jersey have taken actions under paragraph (1) shall be reduced by an Rule XXVIII of the Standing Rules of the amount equal to the sum of— Senate is amended by adding at the end the to help those who have experienced problems with access to medications ‘‘(i) the amount (as documented by the following: State) that the State expended during the ‘‘8. Each Senate member of a conference under the new prescription drug ben- month for payment for covered part D drugs committee shall be afforded an opportunity efit. As of Wednesday this week, New for part D eligible individuals who are en- at an open meeting of the conference to vote Jersey had already spent $16.6 million rolled in a prescription drug plan under part on the full text of the proposed report of the dollars. D of title XVIII but were unable to access on conference.’’. Congress has been asking the Centers a timely basis prescription drug benefits to SEC. 503. AVAILABILITY OF CONFERENCE RE- for Medicare and Medicaid Services which they were entitled under such plan; PORTS ON THE INTERNET. whether New Jersey and other States and Rule XXVIII of all the Standing Rules of will be paid back for its expenditures. ‘‘(ii) interest on such amount (for the pe- the Senate is amended by adding at the end The answers we have gotten so far are riod beginning on the day after the date on the following: which an expenditure described in subpara- ‘‘9. It shall not be in order in the Senate to not satisfactory. graph (A) is made and ending on the date on consider a conference report unless such re- That is why we need to legislate on which payment is made under paragraph (1)) port is available to all Members and made this issue. It must be crystal clear to at a rate equal to the weighted average of in- available to the general public by means of the Federal Government that it needs terest on 3-month marketable Treasury secu- the Internet for at least 24 hours before its to repay these States that are bailing rities determined for such period, increased consideration.’’. them out. by 0.1 percentage point. Accordingly, I am introducing emer- ‘‘(B) RECOVERY OF REDUCED PAYMENT FROM By Mr. LAUTENBERG (for him- gency legislation today that will reim- PRESCRIPTION DRUG PLANS.—The Secretary self, Ms. SNOWE, Mr. SCHUMER, burse States for the cost they have in- shall provide for recovery of payment reduc- Mr. COLEMAN, Mrs. FEINSTEIN, curred for filling this unanticipated tions made under subparagraph (A) from Mr. PRYOR, Mr. DEWINE, Mrs. those prescription drug plans under part D of gap in coverage. title XVIII or MA–PD plans under part C of BOXER, Mr. MENENDEZ, Ms. COL- Specifically, this legislation would: such title that would otherwise be respon- LINS, Mr. DAYTON, Mr. REED, require the Federal Government to re- sible for the expenditures described in sub- Mr. JEFFORDS, Mrs. LINCOLN, imburse the states for the cost of pre- paragraph (A)(i). Any such amounts recov- Mr. LEAHY, Mr. WYDEN, Ms. scriptions for low income seniors and ered shall be deposited into the Medicare STABENOW, Mr. JOHNSON, Mr. people with disabilities (‘‘dual eligi- Prescription Drug Account in the Federal KENNEDY, Mr. DORGAN, Mr. LIE- bles’’) who were eligible for coverage Supplementary Medical Insurance Trust BERMAN, Mrs. CLINTON, Mr. under Medicare Part D, but were im- Fund.’’. CHAFEE, and Mr. DODD): properly denied Federal coverage. ∑ Ms. SNOWE. Mr. President, I am S. 2181. A bill to amend title XIX of Reimburse states through an equiva- pleased to join with Senator LAUTEN- the Social Security Act to provide for lent reduction in funds owed by each BERG today to introduce urgent legisla- an offset from the Medicaid clawback state under the ‘‘claw back’’ provision tion to assist the many States which for State prescription drug expendi- of the new Medicare law. have stepped forward to provide an es- tures for covered part D drugs for Reimbursement will be at a rate sential safety net to our Medicare Part Medicare beneficiaries; to the Com- equal to 100 percent of all State costs D beneficiaries. Our States have acted mittee on Finance. plus an interest rate equal to the mar- as ‘‘payers of last resort’’—as bene- ∑ Mr. LAUTENBERG. Mr. President, I ket rate on 3-month Treasury Securi- ficiaries faced unaffordable costs when rise to introduce the Medicare State ties plus 0.1 percent. errors in implementing their coverage

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00096 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S131 denied them access to vital medica- should have been charged—many sim- It is incomprehensible to me that tions. The Medicare State Reimburse- ply couldn’t afford their medications. with all the money and time given to ment Act will reimburse our States for Thankfully, our States have stepped in the Centers for Medicare and Medicaid their costs in assuring that millions re- to make sure low income seniors re- Services, CMS, to implement this new ceive their medications. So many of ceived their medications. In Maine drug benefit, stories emerge every day our colleagues have recognized the cri- alone, approximately $5 million in as- of seniors and disabled individuals sis which was averted—Senators COLE- sistance has been given to ensure medi- being hospitalized because they are MAN, SCHUMER, DEWINE, FEINSTEIN, cations are dispensed. being told they have to pay hundreds of COLLINS, JEFFORDS and many more This drug benefit must increase ac- dollars for their medications which have joined us in this bipartisan effort cess, not make it more difficult. I am they cannot afford and thus don’t take. to support the States in the vital role appalled, that with all the technology Because of severe glitches in the they have played in countering a def- we have, so many have faced such dif- database run by CMS, these individuals icit of action by the Federal bureauc- ficulties in the implementation of this are leaving pharmacies without their racy. benefit. I salute the forbearance of our medications or are making undue sac- The introduction of the prescription pharmacies, as they strived to meet es- rifices to pay for costs they should not drug benefit is a landmark step in the sential needs, and the efforts of my have incurred in the first place. progress of Medicare. This benefit will State and others which have assured So far, more than 24 States and the save the average senior about $1,000 per that these most vulnerable Americans District of Columbia have stepped in to year. This is the relief that millions not suffer from the failures of either say they will cover the cost of prescrip- have needed for so long. It must elimi- the Federal bureaucracy or the plan tion drugs for their residents who are nate the terrible choices so many have administrators. dually eligible for Medicare and Med- had to make between vital medications So what this legislation does is sim- icaid and who cannot access lifesaving and the other essentials of life—not ple. It authorizes CMS to reimburse the and life sustaining drugs as a result of create new dilemmas. States their costs which they paid for Federal incompetence. As we worked to ensure a prescrip- providing medications to those who did Earlier this week, the Governor of tion drug benefit, many of us worked not receive the benefits to which they California and California’s State legis- hard to assure special help to those were entitled. It does this by a simple lative leaders announced a plan to with the most limited resources. We mechanism: an adjustment in the make $150 million available for 30 days enacted a benefit which provided addi- ‘‘claw back’’ payments which States to cover drug costs for dual eligible in- tional help for those on limited in- make as their contribution for their dividuals who have fallen through the comes, including millions who rely on dual eligibles. Accordingly, CMS is au- system. In California, these individuals both Medicare and Medicaid—our ‘‘dual thorized to collect those funds from account for more than 1 million of the those who were obligated to serve our eligibles’’. It was essential that these State’s 4 million total Medicare recipi- beneficiaries—the drug plans and man- individuals would see uninterrupted ents. coverage of their essential medica- aged care plans which deliver the drug Problems with the Bush administra- benefit. tions. So we needed to ensure each tion’s implementation of the drug ben- It has been confirmed that CMS does would be enrolled in a drug plan. To do efit have cost California $5.5 million to this, the Centers for Medicare and Med- not presently have this authority, and it simply is not acceptable to propose fill 63,000 prescriptions, as of January icaid Services, CMS, randomly as- 18. I have no doubt these costs are just signed each of them to a plan. In a pro- that CMS will simply help the States collect from the plans. It was CMS the beginning. gram based on competition—based on which approved the plans, and it is Unless these significant implementa- choices—plans are going to differ. To CMS which administers Part D. They tion errors are fixed immediately, the find the best plan, one must make an are in the best position to assure plan new drug benefit amounts to a massive educated choice, not a random assign- compliance. unfunded mandate. The Bush adminis- ment. I look forward to prompt consider- tration must reimburse States, in full, So the result of random assignment ation of this legislation, and look for- for the drug costs they have absorbed was predictable. Many beneficiaries ward to continuing work with my col- as a result of major implementation er- wound up in plans which did not cover leagues to assure that the Medicare rors that occurred on their watch. their drugs. My State of Maine imme- drug benefit meets the needs of all our The legislation I am introducing diately stepped forward to work to as- beneficiaries, and that none of our today with Senators LAUTENBERG, sure that every beneficiary was most vulnerable citizens should suffer SNOWE, SCHUMER and COLEMAN will en- matched with the plan which best met from such administrative failures as we sure that States are repaid in full by their needs. As plans were reviewed, have seen here. the Federal Government for all costs my State found a third of those re- I call on my colleagues to join us in associated with prescription drugs for viewed—15,000 beneficiaries—were not assuring our States are justly com- dual eligible individuals. The States enrolled in the most appropriate drug pensated.∑ did not create the crisis felt by our Na- plan. Getting each into the plan that ∑ Mrs. FEINSTEIN. Mr. President, I tion’s poorest and most vulnerable sen- met their medication requirements was am pleased to join with Senators LAU- iors and disabled and the States should essential to meeting their needs. TENBERG, SNOWE, SCHUMER, COLEMAN not be responsible for costs associated Despite these best efforts to improve and many others to introduce legisla- with a Federal program that was in- the situation, some beneficiaries were tion to reimburse States for prescrip- tended to provide these individuals not in a plan at all, while others were tion drug expenses they have incurred with comprehensive prescription drug in plans which seemed not to under- for their residents who are dually eligi- coverage at little or no cost. stand that every beneficiary was to be ble for Medicare and Medicaid. States It is simply unacceptable for the allowed a refill of their existing medi- have had no other option but to step in Bush administration to tell States and cations. So as beneficiaries came to and ensure seniors can still get their the Congress not to worry because the their local pharmacies to get prescrip- drugs because the implementation of private health insurance plans will re- tion refills, many faced great obstacles the new Medicare drug benefit has been imburse States for the costs they’ve in- in getting the drugs they needed. We so poorly handled by the Bush adminis- curred. States should not be made to had heard of some problems in vali- tration. wait to be reimbursed because of im- dating enrollment eligibility, but at The faulty implementation of the plementation foul-ups caused by CMS. year end, these just became worse, and new drug benefit has caused a major I urge my colleagues to support this we found beneficiaries were not prop- health emergency in California and legislation.∑ erly enrolled, plans were not giving the States across the country, particularly proper transition refills, and co-pay- for seniors with chronic and debili- By Mr. ROCKEFELLER (for him- ments charged were often excessive. As tating diseases who rely on multiple self, Mr. REID, Mrs. MURRAY, individual faced co-payments of $100 or medications every day to keep them Mr. BINGAMAN, Mrs. LINCOLN, more—instead of the $5 or less they alive. Mr. KENNEDY, Mrs. CLINTON,

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00097 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S132 CONGRESSIONAL RECORD — SENATE January 25, 2006 Mr. LAUTENBERG, Ms. STABE- to enrolling in such plan. For individuals re- point of sale contractor when a prescription NOW, Mr. DURBIN, Mr. KERRY, siding in a long-term care setting, the spon- is presented on or after the date that a pre- Mr. SCHUMER, Mr. PRYOR, Mr. sor of a prescription drug plan is required to scription refill is appropriate, but in no case provide at least a 90-day supply of any drug after December 31, 2006. LEAHY, Mr. DAYTON, Mr. JEF- such individual was taking prior to enrolling (3) COST-SHARING.—The cost-sharing for a FORDS, Mr. HARKIN, Ms. MIKUL- in such plan. A formulary transition supply prescription filled pursuant to this sub- SKI, Mr. JOHNSON, Ms. CANT- provided under this section shall be made by section shall be cost-sharing provided for WELL, Mr. AKAKA, Mr. LIEBER- the sponsor of a prescription drug plan with- under section 1860D–14(a) of the Social Secu- MAN, Mr. KOHL, Ms. LANDRIEU, out imposing any prior authorization re- rity Act (42 U.S.C. 1395w–114(a)). Mr. SARBANES, and Mrs. quirements or other access restrictions for (b) PRESUMPTIVE ELIGIBILITY.—An indi- BOXER): individuals stabilized on a course of treat- vidual shall be presumed to be a full-benefit S. 2183. A bill to provide for nec- ment and at the dosage previously prescribed dual eligible individual (as so defined) if the by a physician or recommended by a physi- individual presents at the pharmacy with— essary beneficiary protections in order cian going forward. (1) a government issued picture identifica- to ensure access to coverage under the ‘‘(5) CUSTOMER SERVICE.—The sponsor of a tion card; Medicare part D prescription drug pro- prescription drug plan is required to pro- (2) reliable evidence of Medicaid enroll- gram; to the Committee on Finance. vide— ment, such as a Medicaid card, recent his- ∑ Mr. ROCKEFELLER. Mr. President, I ‘‘(A) accessible and trained customer serv- tory of Medicaid billing in the pharmacy pa- ask unanimous consent that the text of ice representatives available for full business tient profile, or a copy of a current Medicaid hours from coast to coast to provide knowl- the bill be printed in the RECORD.∑ award letter; and There being no objection, the bill was edgeable assistance to individuals seeking (3) reliable evidence of Medicare enroll- help with Medicare Part D including, but not ment, such as a Medicare identification card, ordered to be printed in the RECORD, as limited to, beneficiaries, caseworkers, SHIP a Medicare enrollment approval letter, a follows: counselors, pharmacists, doctors, and care- Medicare Summary Notice, or confirmation S. 2183 givers; from an official Medicare hotline. Be it enacted by the Senate and House of Rep- ‘‘(B) at least one dedicated phone line for (c) PAYMENTS TO PHARMACISTS.— resentatives of the United States of America in pharmacists with sufficient staff to reduce (1) IN GENERAL.—The Secretary of Health Congress assembled, wait times for pharmacists seeking Medicare and Human Services shall reimburse phar- Part D assistance to no more than 20 min- SECTION 1. SHORT TITLE; TABLE OF CONTENTS. macists, to the extent that such pharmacists utes; and are not otherwise reimbursed by States or (a) SHORT TITLE.—This Act may be cited as ‘‘(C) sufficient staff to reduce wait times the ‘‘Requiring Emergency Pharmaceutical plans, for the costs incurred in complying for all Medicare Part D-related calls to plan Access for Individual Relief (REPAIR) Act of with the requirements under subsection (a), phone lines to no more than 20 minutes.’’. 2006’’. including acquisition costs, dispensing costs, (2) APPLICATION.—The requirements under (b) TABLE OF CONTENTS.—The table of con- and other overhead costs. Such payments paragraphs (4) and (5) of section 1860D–4(b) of tents of this Act is as follows: shall be made in a timely manner from the the Social Security Act (42 U.S.C. 1395w– Medicare Prescription Drug Account under Sec. 1. Short title; table of contents. 104(b)), as added by subsection (a), shall section 1860D–16 of the Social Security Act Sec. 2. Transition requirements. apply to the plan serving as the national (42 U.S.C. 1395w–116) and shall be deemed to Sec. 3. Federal fallback for full-benefit dual point of sale contractor under part D of title be payments from such Account under sub- eligible individuals for 2006. XVIII of such Act. section (b) of such section. Sec. 4. Identifying full-benefit dual eligible (b) EFFECTIVE DATE AND ENFORCEMENT.— (2) RETROACTIVE APPLICATION TO BEGINNING individuals in data records. (1) EFFECTIVE DATE.—The amendment OF 2006.—The costs incurred by a pharmacy Sec. 5. Prohibition on conditioning Medicaid made by subsection (a) shall take effect on which may be reimbursed under paragraph eligibility for individuals en- the date of enactment of this Act. (1) shall include costs incurred during the pe- rolled in certain creditable pre- (2) ENFORCEMENT.—The Secretary may im- riod beginning on January 1, 2006, and before scription drug coverage on en- pose a civil monetary penalty in an amount the date of enactment of this Act. rollment in the Medicare part D not to exceed $15,000 for conduct that a spon- (d) RECOVERY OF COSTS FROM PLANS BY drug program. sor of a prescription drug plan or an organi- SECRETARY NOT PHARMACIES.—The Secretary Sec. 6. Ensuring that full-benefit dual eligi- zation offering an MA–PD plan knows or of Health and Human Services shall establish ble individuals are not over- should know is a violation of the provisions a process for recovering the costs described charged. of paragraph (4) or (5) of section 1860D–4(b) of in subsection (c)(1) from prescription drug Sec. 7. Reimbursement of States for 2006 the Social Security Act (42 U.S.C. 1395w– plans (as defined in section 1860D–1(a)(3)(C) transition costs. 104(b)), as added by subsection (a). The provi- of the Social Security Act (42 U.S.C. 1394w– Sec. 8. Facilitation of identification and en- sions of section 1128A of the Social Security 101(a)(3)(C))) and MA–PD plans (as defined in rollment through pharmacies of Act (42 U.S.C. a–7a), other than subsections section 1860D–41(a)(14) of such Act (42 U.S.C. full-benefit dual eligible indi- (a) and (b) and the second sentence of sub- 1395w–151(a)(14))) if the Secretary determines viduals in the Medicare part D section (f), shall apply to a civil monetary that such plans should have incurred such drug program. penalty under the previous sentence in the costs. Amounts recovered pursuant to the Sec. 9. State health insurance program as- same manner as such provisions apply to a preceding sentence shall be deposited in the sistance regarding the new penalty or proceeding under subsection (a) of Medicare Prescription Drug Account de- Medicare prescription drug ben- such section 1128A(a). scribed in subsection (c)(1). efit. SEC. 3. FEDERAL FALLBACK FOR FULL-BENEFIT SEC. 4. IDENTIFYING FULL-BENEFIT DUAL ELIGI- Sec. 10. Additional Medicare part D informa- DUAL ELIGIBLE INDIVIDUALS FOR BLE INDIVIDUALS IN DATA tional resources. 2006. RECORDS. Sec. 11. GAO study and report on the impo- (a) IN GENERAL.— (a) IN GENERAL.—The Secretary of Health sition of co-payments under (1) IN GENERAL.—If a full-benefit dual eligi- and Human Services and a prescription drug part D for full-benefit dual eli- ble individual (as defined in section 1935(c)(6) plan or an MA–PD plan shall clearly identify gible individuals residing in a of the Social Security Act (42 U.S.C. 1396u– all full-benefit dual eligible individuals (as long-term care facility. 5(c)(6))), or an individual who is presumed to defined in section 1935(c)(6) of the Social Se- Sec. 12. State coverage of non-formulary be such an individual pursuant to subsection curity Act (42 U.S.C. 1396u–5(c)(6))) and re- prescription drugs for full-ben- (b), presents a prescription for a covered part flect the low-income subsidy status of such efit dual eligible individuals D drug (as defined in section 1860D–2(e) of individual for each calender year (beginning during 2006. such Act (42 U.S.C. 1395w–102(e))) at a phar- with 2006) in every data record file used to Sec. 13. Protection for full-benefit dual eli- macy in 2006 and the pharmacy is unable to enroll or adjudicate claims for such individ- gible individuals from plan ter- locate or verify the individual’s enrollment uals. mination prior to receiving through a reasonable effort, including the (b) ENROLLMENT.—For each calendar year functioning access in a new use of the pharmacy billing system or by (beginning with 2006) and for each Medicaid part D plan. calling an official Medicare hotline, or to bill beneficiary who is a full-benefit dual eligible SEC. 2. TRANSITION REQUIREMENTS. for the prescription through the plan serving individual (as so defined), the Secretary of (a) REQUIREMENT.— as the national point of sale contractor, the Health and Human Services shall— (1) IN GENERAL.—Section 1860D–4(b) of the pharmacy may provide a 30-day supply of the (1) identify in the Medicare enrollment Social Security Act (42 U.S.C. 1395w–104(b)) is drug to the individual. database that such individual has dual eligi- amended by adding at the end the following (2) REFILL.—The pharmacy may provide an ble status that has been verified with a State new paragraph: additional 30-day supply of a drug if the or the District of Columbia; and ‘‘(4) FORMULARY TRANSITION.—The sponsor pharmacy continues to be unable to locate (2) ensure that such dual eligible status is of a prescription drug plan is required to pro- the individual’s enrollment through such reflected in each data file necessary to en- vide at least a 30-day supply of any drug that reasonable efforts or to bill for the prescrip- sure that such status is transmitted to a pre- a new enrollee in the plan was taking prior tion through the plan serving as the national scription drug plan or an MA–PD plan when

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00098 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S133 the Secretary certifies the enrollment of plan under section 1853 that inappropriately (1) The needs of full-benefit dual eligible such an individual in a plan. charged the individual by an amount equal individuals and the challenges of meeting (c) DEFINITION OF MA–PD PLAN AND PRE- to the inappropriate charges; and those needs. SCRIPTION DRUG PLAN.—For purposes of this ‘‘(ii) refund such amount to the individual (2) The processes for the transition from section, the terms ‘‘MA–PD plan’’ and ‘‘pre- within 60 days of the determination that the Medicaid prescription drug coverage to cov- scription drug plan’’ have the meaning given individual was inappropriately charged. erage under such part D for such individuals. such terms in sections 1860D–1(a)(3)(C) and If the Secretary does not provide for the re- (3) The processes established by the Sec- 1860D–41(a)(14) of the Social Security Act (42 fund under clause (i) within the 60 days pro- retary to facilitate, at point of sale, identi- U.S.C. 1395w–101(a)(3)(C); 1395w–151(a)(14)), re- vided for under such clause, interest at the fication of drug plan assignment of such pop- spectively. rate established under section 6621(a)(1) of ulation or enrollment of previously unidenti- SEC. 5. PROHIBITION ON CONDITIONING MED- the Internal Revenue Code of 1986 shall be fied or new full-benefit dual eligible individ- ICAID ELIGIBILITY FOR INDIVID- payable from the end of such 60-day period uals into Medicare part D prescription drug UALS ENROLLED IN CERTAIN CRED- until the date of the refund. coverage, including how pharmacies can use ITABLE PRESCRIPTION DRUG COV- such processes to help ensure that such pop- ‘‘(2) REQUIREMENT.—The processes estab- ERAGE ON ENROLLMENT IN THE ulation makes a successful transition to MEDICARE PART D DRUG PROGRAM. lished under paragraph (1) shall provide for the ability of an individual to notify the Sec- Medicare part D without a lapse in prescrip- (a) IN GENERAL.—Section 1935 of the Social tion drug coverage. retary if the individual believes that they Security Act (42 U.S.C. 1396v) is amended by (b) HOLDING PHARMACIES HARMLESS FOR were inappropriately subject under the plan adding at the end the following: CERTAIN COSTS.— to a deductible or cost-sharing that is great- ‘‘(f) PROHIBITION ON CONDITIONING ELIGI- (1) IN GENERAL.—The Secretary of Health BILITY FOR MEDICAL ASSISTANCE FOR INDIVID- er than is required under section 1860D–14.’’. and Human Services shall provide for such (b) REPORT TO CONGRESS.—Not later than UALS ENROLLED IN CERTAIN CREDITABLE PRE- payments to pharmacies as may be necessary January 1, 2007, the Secretary of Health and SCRIPTION DRUG COVERAGE ON ENROLLMENT IN to reimburse pharmacies fully for— Human Services shall submit a report to MEDICARE PRESCRIPTION DRUG BENEFIT.— (A) transaction fees associated with the Congress on the implementation of the proc- ‘‘(1) IN GENERAL.—A State shall not condi- point-of-sale facilitated identification and esses established under subsection (d) of sec- tion eligibility for medical assistance under enrollment processes referred to in sub- tion 1860D–14 of the Social Security Act (42 the State plan for a part D eligible indi- section (a)(3); and U.S.C. 1395w–114), as added by subsection (a). vidual (as defined in section 1860D–1(a)(3)(A)) (B) costs associated with technology or who is enrolled in creditable prescription SEC. 7. REIMBURSEMENT OF STATES FOR 2006 software upgrades necessary to make any TRANSITION COSTS. drug coverage described in any of subpara- identification and enrollment inquiries as (a) REIMBURSEMENT.— graphs (C) through (H) of section 1860D– part of the processes under subsection (a)(3). (1) IN GENERAL.—Notwithstanding section 13(b)(4) on the individual’s enrollment in a (2) TIME.—Payments under paragraph (1) 1935(d) of the Social Security Act (42 U.S.C. prescription drug plan under part D of title shall be made with respect to fees and costs 1396u–5(d) or any other provision of law, the XVIII or an MA–PD plan under part C of such incurred during the period beginning on De- Secretary of Health and Human Services title. cember 1, 2005, and ending on June 1, 2006. shall reimburse States for 100 percent of the ‘‘(2) COORDINATION OF BENEFITS WITH PART D (3) PAYMENTS FROM ACCOUNT.—Payments costs incurred by the State during 2006 for FOR OTHER INDIVIDUALS.—Nothing in this sub- under paragraph (1) shall be made from the section shall be construed as prohibiting a covered part D drugs (as defined in section Medicare Prescription Drug Account under State from coordinating medical assistance 1860D–2(e) of such Act (42 U.S.C. 1395w– section 1860D–16 of the Social Security Act under the State plan with benefits under 102(e))) for part D eligible individuals (as de- (42 U.S.C. 1395w–116) and shall be deemed to part D of title XVIII for individuals not de- fined in section 1860D–1(a)(3)(A) of the Social be payments from such Account under sub- scribed in paragraph (1).’’. Security Act (42 U.S.C. 1394w–101(a)(3)(A))) section (b) of such section. which the State reasonably expected would (b) NULLIFICATION OF STATE PLAN AMEND- SEC. 9. STATE HEALTH INSURANCE PROGRAM AS- have been covered under such part but were MENTS, REDETERMINATION OF ELIGIBILITY.—In SISTANCE REGARDING THE NEW the case of a State that, as of the date of en- not because the individual was unable to ac- MEDICARE PRESCRIPTION DRUG actment of this Act, has an approved amend- cess on a timely basis prescription drug ben- BENEFIT. ment to its State plan under title XIX of the efits to which they were entitled under such During the period beginning on the date Social Security Act with a provision that part. Such payments shall be made from the that is 7 days after the date of enactment of conflicts with section 1935(f) of such Act (as Medicare Prescription Drug Account under this Act and ending on May 15, 2006 (or a added by subsection (a)), such provision is, as section 1860D–16 of the Social Security Act later date if determined appropriate by the Secretary of Health and Human Services), of such date of enactment, null and void. The (42 U.S.C. 1395w–116) and shall be deemed to the Secretary shall ensure that an employee State shall redetermine any applications for be payments from such Account under sub- of the Centers for Medicare & Medicaid Serv- medical assistance that have been denied section (b) of such section. ices is stationed at each State health insur- solely on the basis of the application of such (2) RETROACTIVE APPLICATION TO BEGINNING OF 2006.—The costs incurred by a State which ance counseling program (receiving funding a State plan amendment not later than 90 under section 4360 of the Omnibus Budget days after the date of enactment of this Act. may be reimbursed under paragraph (1) shall include costs incurred during the period be- Reconciliation Act of 1990) in order to— SEC. 6. ENSURING THAT FULL-BENEFIT DUAL EL- ginning on January 1, 2006, and before the (1) assist Medicare beneficiaries and coun- IGIBLE INDIVIDUALS ARE NOT selors under such program in better under- OVERCHARGED. date of enactment of this Act. (b) RECOVERY OF COSTS FROM PLANS BY standing the Medicare prescription drug ben- (a) IN GENERAL.—Section 1860D–14 of the efit under part D of title XVIII of the Social Social Security Act (42 U.S.C. 1395w–114) is SECRETARY NOT STATES.—The Secretary of Security Act; and amended— Health and Human Services shall establish a (2) act as a liaison to the Secretary and the (1) by redesignating subsection (d) as sub- process for recovering the costs described in subsection (a)(1) from prescription drug Administrator of the Centers for Medicare & section (e); and plans (as defined in section 1860D–1(a)(3)(C) Medicaid Services regarding issues related to (2) by inserting after subsection (c) the fol- of the Social Security Act (42 U.S.C. 1394w– oversight and enforcement of provisions lowing new subsection: 101(a)(3)(C))) and MA–PD plans (as defined in under the Medicare prescription drug ben- ‘‘(d) ENSURING FULL-BENEFIT DUAL ELIGI- section 1860D–41(a)(14) of such Act (42 U.S.C. efit. BLE INDIVIDUALS ARE NOT OVERCHARGED.— 1395w–151(a)(14))) if the Secretary determines SEC. 10. ADDITIONAL MEDICARE PART D INFOR- ‘‘(1) IN GENERAL.—The Secretary shall, as that such plans should have incurred such MATIONAL RESOURCES. soon a possible after the date of enactment costs. Amounts recovered pursuant to the (a) 1–800–MEDICARE.—The Secretary of of this subsection, establish processes for the preceding sentence shall be deposited in the Health and Human Services shall increase following: Medicare Prescription Drug Account de- the number of trained employees staffing the ‘‘(A) TRACKING INAPPROPRIATE PAYMENTS.— scribed in subsection (a)(1). toll-free telephone number 1–800–MEDICARE The Secretary shall track full-benefit dual (c) STATE.—For purposes of this section, in order to ensure that the average wait time eligible individuals enrolled in a prescription the term ‘‘State’’ includes the District of Co- for a caller does not exceed 20 minutes. drug plan or an MA–PD plan to determine lumbia. (b) PHARMACY HOTLINE.—The Secretary of whether such individuals were inappropri- SEC. 8. FACILITATION OF IDENTIFICATION AND Health and Human Services shall— ately subject under the plan to a deductible ENROLLMENT THROUGH PHAR- (1) establish a toll-free telephone number or cost-sharing that is greater than is re- MACIES OF FULL-BENEFIT DUAL EL- that is dedicated to providing information quired under section 1860D–14. IGIBLE INDIVIDUALS IN THE MEDI- regarding the Medicare prescription drug ‘‘(B) REDUCTION IN PAYMENTS TO PLANS AND CARE PART D DRUG PROGRAM. benefit under title XVIII of the Social Secu- REFUNDS TO INDIVIDUALS.—If the Secretary (a) IN GENERAL.—The Secretary of Health rity Act to pharmacists; and determines under subparagraph (A) that an and Human Services shall provide for out- (2) staff such telephone number in order to individual was overcharged, the Secretary reach and education to every pharmacy that ensure that the average wait time for a call- shall— has participated in the Medicaid program er does not exceed 20 minutes. ‘‘(i) reduce payments to the sponsor of the under title XIV of the Social Security Act, (c) STATE HEALTH INSURANCE PROGRAM prescription drug plan under section 1860D–15 particularly independent pharmacies, on the HOTLINE.—The Secretary of Health and or to the organization offering the MA–PD following: Human Services shall—

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00099 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S134 CONGRESSIONAL RECORD — SENATE January 25, 2006 (1) establish a toll-free telephone number nate coverage of a full-benefit dual eligible (9) investigate and report to Congress on that is dedicated to providing information individual (as defined in section 1935(c)(6) of its findings, conclusions, and recommenda- regarding the Medicare prescription drug the Social Security Act (42 U.S.C. 1396v(c)(6)) tions for reform. benefit under title XVIII of the Social Secu- unless such individual has functioning access SEC. 4. COMPOSITION OF COMMISSION. rity Act to counselors working in State to a prescription drug plan under part D or (a) MEMBERS.—The Commission shall be health insurance counseling programs (re- an MA–PD plan under part C of title XVIII of composed of 10 members, of whom— ceiving funding under section 4360 of the Om- such Act. Such access shall include entry of (1) the chair and vice chair shall be se- nibus Budget Reconciliation Act of 1990); and the individual into the computer system of lected by agreement of the majority leader (2) staff such telephone number in order to such plan and an acknowledgment by the and minority leader of the House of Rep- ensure that the average wait time for a call- plan that the individual is eligible for a full resentatives and the majority leader and mi- er does not exceed 20 minutes. premium subsidy under section 1860D–14 of nority leader of the Senate; SEC. 11. GAO STUDY AND REPORT ON THE IMPO- such Act (42 U.S.C. 1395w–114). (2) 2 members shall be appointed by the SITION OF CO-PAYMENTS UNDER (b) EFFECTIVE DATE.—This section shall senior member of the Senate leadership of PART D FOR FULL-BENEFIT DUAL take effect on the date of enactment of this the Republican Party, 1 of which is a former ELIGIBLE INDIVIDUALS RESIDING IN Act. member of the Senate; A LONG-TERM CARE FACILITY. f (3) 2 members shall be appointed by the (a) STUDY.—The Comptroller General of senior member of the Senate leadership of the United States shall conduct a study on STATEMENTS ON INTRODUCED the Democratic Party, 1 of which is a former how mental health patients who are full-ben- BILLS AND JOINT RESOLUTIONS member of the Senate; efit dual eligible individuals (as defined in By Mr. COLEMAN (for himself, (4) 2 members shall be appointed by the section 1935(c)(6) of the Social Security Act senior member of the leadership of the House Mr. NELSON of Nebraska, Mr. (42 U.S.C. 1396u–5(c)(6))) and who reside in of Representatives of the Republican Party, long-term care facilities, including licensed ALLARD, Mr. ENZI, Mr. BURNS, 1 of which is a former member of the House assisted living facilities, will be affected by Mr. COBURN, and Mr. THOMAS): of Representatives; and the imposition of co-payments for covered S. 2186. A bill to establish a commis- (5) 2 members shall be appointed by the part D drugs under part D of title XVIII of sion to strengthen confidence in Con- senior member of the leadership of the House such Act. Such study shall include a review gress; to the Committee on Rules and of Representatives of the Democratic Party, of issues that relate to the potential harm of Administration. 1 of which is a former member of the House displacement due to an inability to access of Representatives. needed medications because of such co-pay- Mr. COLEMAN. Mr. President, I ask unanimous consent that the text of the (b) QUALIFICATIONS; INITIAL MEETING.— ments. (1) POLITICAL PARTY AFFILIATION.—Five (b) REPORT.—Not later than 6 months after bill to establish a commission to members of the Commission shall be Demo- the date of enactment of this Act, the Comp- strengthen confidence in Congress be crats and 5 Republicans. troller General of the United States shall printed in the RECORD. (2) NONGOVERNMENTAL APPOINTEES.—An in- submit a report to Congress on the study There being no objection, the text of dividual appointed to the Commission may conducted under subsection (a) together with the bill was ordered to be printed in not be an officer or employee of the Federal recommendations for such legislation as the the RECORD, as follows: Government or any State or local govern- Comptroller General determines is appro- ment. priate. S. 2186 (3) OTHER QUALIFICATIONS.—It is the sense SEC. 12. STATE COVERAGE OF NON-FORMULARY Be it enacted by the Senate and House of Rep- of Congress that individuals appointed to the PRESCRIPTION DRUGS FOR FULL- resentatives of the United States of America in Commission should be prominent United BENEFIT DUAL ELIGIBLE INDIVID- Congress assembled, States citizens, with national recognition UALS DURING 2006. SECTION 1. SHORT TITLE. and significant depth of experience in profes- (a) STATE COVERAGE OF NON-FORMULARY This Act may be cited as the ‘‘Commission sions such as governmental service, govern- PRESCRIPTION DRUGS FOR FULL-BENEFIT DUAL to Strengthen Confidence in Congress Act of ment consulting, government contracting, ELIGIBLE INDIVIDUALS DURING 2006.—For pre- 2006’’. the law, higher education, historian, busi- scriptions filled during 2006, notwithstanding SEC. 2. ESTABLISHMENT OF COMMISSION. ness, public relations, and fundraising. section 1935(d) of the Social Security Act (42 There is established in the legislative (4) DEADLINE FOR APPOINTMENT.—All mem- U.S.C. 1396v(d)), a State (as defined for pur- branch a commission to be known as the bers of the Commission shall be appointed on poses of title XIX of such Act) may provide ‘‘Commission to Strengthen Confidence in a date 3 months after the date of enactment (and receive Federal financial participation Congress’’ (in this Act referred to as the of this Act. for) medical assistance under such title with ‘‘Commission’’). (5) INITIAL MEETING.—The Commission respect to prescription drugs provided to a shall meet and begin the operations of the full-benefit dual eligible individual (as de- SEC. 3. PURPOSES. Commission as soon as practicable. fined in section 1935(c)(6) of such Act (42 The purposes of the Commission are to— (c) QUORUM; VACANCIES.—After its initial U.S.C. 1396v(c)(6)) that are not on the for- (1) evaluate and report the effectiveness of meeting, the Commission shall meet upon mulary of the prescription drug plan under current congressional ethics requirements, if the call of the chairman or a majority of its part D or the MA–PD plan under part C of penalties are enforced and sufficient, and members. Six members of the Commission title XVIII of such Act in which such indi- make recommendations for new penalties; shall constitute a quorum. Any vacancy in vidual is enrolled. (2) weigh the need for improved ethical the Commission shall not affect its powers, (b) APPLICATION.— conduct with the need for lawmakers to have but shall be filled in the same manner in (1) MEDICARE AS PRIMARY PAYER.—Nothing access to expertise on public policy issues; which the original appointment was made. in subsection (a) shall be construed as chang- (3) determine and report minimum stand- ing or affecting the primary payer status of ards relating to official travel for Members SEC. 5. FUNCTIONS OF COMMISSION. a prescription drug plan under part D or an of Congress and staff; The functions of the Commission are to MA–PD plan under part C of title XVIII of (4) evaluate the range of gifts given to submit to Congress a report required by this the Social Security Act with respect to pre- Members of Congress and staff, determine Act containing such findings, conclusions, scription drugs furnished to any full-benefit and report the effects on public policy, and and recommendations as the Commission dual eligible individual (as defined in section make recommendations for limits on gifts; shall determine, including proposing organi- 1935(c)(6) of such Act (42 U.S.C. 1396v(c)(6)) (5) evaluate and report the effectiveness zation, coordination, planning, management during 2006. and transparency of congressional disclosure arrangements, procedures, rules and regula- tions— (2) THIRD PARTY LIABILITY.—Nothing in laws and recommendations for improve- subsection (a) shall be construed as limiting ments; (1) related to section 3; or the authority or responsibility of a State (6) assess and report the effectiveness of (2) related to any other areas the commis- under section 1902(a)(25) of the Social Secu- the ban on Member of Congress and staff sion unanimously votes to be relevant to its rity Act (42 U.S.C. 1396a(a)(25)) to seek reim- from lobbying their former office for 1 year mandate to recommend reforms to strength- bursement from a prescription drug plan, an and make recommendations for altering the en ethical safeguards in Congress. MA–PD plan, or any other third party, of the time frame; SEC. 6. POWERS OF COMMISSION. costs incurred by the State in providing pre- (7) make recommendations to improve the (a) HEARINGS AND EVIDENCE.—The Commis- scription drug coverage during 2006. process whereby Members of Congress can sion or, on the authority of the Commission, earmark priorities in appropriations Acts, any subcommittee or member thereof, may, SEC. 13. PROTECTION FOR FULL-BENEFIT DUAL ELIGIBLE INDIVIDUALS FROM PLAN while still preserving congressional power of for the purpose of carrying out this Act— TERMINATION PRIOR TO RECEIVING the purse; (1) hold such hearings and sit and act at FUNCTIONING ACCESS IN A NEW (8) evaluate the use of public and privately such times and places, take such testimony, PART D PLAN. funded travel by Members of Congress and receive such evidence, administer such (a) IN GENERAL.—Notwithstanding any staff, violations of Congressional rules gov- oaths; and other provision of law, the Secretary of erning travel, and make recommendations (2) subject to subsection (b), require, by Health and Human Services shall not termi- on limiting travel; and subpoena or otherwise, the attendance and

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00100 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S135 testimony of such witnesses and the produc- (2) ADDITIONAL SUPPORT.—In addition to port over a million clergy members tion of such books, records, correspondence, the assistance set forth in paragraph (1), de- across the country in their retirement, memoranda, papers, and documents, as the partments and agencies of the United States particularly those who dedicated their Commission or such designated sub- may provide the Commission such services, careers to serving in economically dis- committee or designated member may deter- funds, facilities, staff, and other support advantaged congregations. mine advisable. services as the Commission may deem advis- Some of these plans date back to the (b) SUBPOENAS.— able and as may be authorized by law. (1) IN GENERAL.—A subpoena may be issued (f) USE OF MAILS.—The Commission may 18th Century, and they are designed to under this subsection only— use the United States mails in the same ensure that our pastors and lay staff (A) by the agreement of the chair and the manner and under the same conditions as who are often paid lower salaries have vice chair; or Federal agencies and shall, for purposes of adequate resources during their retire- (B) by the affirmative vote of 6 members of the frank, be considered a commission of ment years. the Commission. Congress as described in section 3215 of title Unfortunately, the Internal Revenue (2) SIGNATURE.—Subject to paragraph (1), 39, United States Code. Code impedes the ability of church pen- subpoenas issued under this subsection may (g) PRINTING.—For purposes of costs relat- sions to recognize these valuable con- be issued under the signature of the chair- ing to printing and binding, including the tributions to society with provisions man or any member designated by a major- cost of personnel detailed from the Govern- that negatively impact church plans ity of the Commission, and may be served by ment Printing Office, the Commission shall any person designated by the chairman or by be deemed to be a committee of the Con- while exempting other equally impor- a member designated by a majority of the gress. tant plans. For example, Section 415(b)(1)(B) of Commission. SEC. 8. SECURITY CLEARANCES FOR COMMIS- (c) OBTAINING INFORMATION.—Upon request SION MEMBERS AND STAFF. the Code limits benefits for a retired of the Commission, the head of any agency The appropriate Federal agencies or de- church employee to 100 percent of the or instrumentality of the Federal Govern- partments shall cooperate with the Commis- participant’s average compensation for ment shall furnish information deemed nec- sion in expeditiously providing to the Com- his or her highest three years. essary by the panel to enable it to carry out mission members and staff appropriate secu- This limitation penalizes church em- its duties. rity clearances to the extent possible pursu- ployees because some church plans SEC. 7. ADMINISTRATION. ant to existing procedures and requirements, allow lower-paid employees to accrue (a) COMPENSATION.—Except as provided in except that no person shall be provided with subsection (b), members of the Commission benefits based on median salaries rath- access to classified information under this er than their own, individual, lower shall receive no additional pay, allowances, Act without the appropriate security clear- or benefits by reason of their service on the ances. compensation. Commission. While the Code allows exceptions to SEC. 9. COMMISSION REPORTS; TERMINATION. (b) TRAVEL EXPENSES AND PER DIEM.—Each this general limitation for govern- member of the Commission shall receive (a) ANNUAL REPORTS.—The Commission mental and multiemployer plans, it shall submit— travel expenses and per diem in lieu of sub- does not allow one for church plans. sistence in accordance with sections 5702 and (1) an initial report to Congress not later than July 1, 2006; and The rationale for allowing an excep- 5703 of title 5, United States Code. tion for governmental plans but not (c) STAFF AND SUPPORT SERVICES.— (2) annual reports to Congress after the re- (1) STAFF DIRECTOR.— port required by paragraph (1); church plans cannot be reconciled (A) APPOINTMENT.—The Chair (or Co- containing such findings, conclusions, and when one acknowledges the situation Chairs) in accordance with the rules agreed recommendations for corrective measures as in which most ministers find them- upon by the Commission shall appoint a staff have been agreed to by a majority of Com- selves when they retire. director for the Commission. mission members. For example, ministers often live in (B) COMPENSATION.—The staff director (b) ADMINISTRATIVE ACTIVITIES.—During parsonages throughout their careers; shall be paid at a rate not to exceed the rate the 60-day period beginning on the date of and they are faced with acquiring hous- submission of each annual report and the established for level V of the Executive ing for the first time when they retire. Schedule under section 5315 of title 5, United final report under this section, the Commis- sion shall— Not having a significant asset in re- States Code. tirement, such as a house—an asset (2) STAFF.—The Chair (or Co-Chairs) in ac- (1) be available to provide testimony to cordance with the rules agreed upon by the committees of Congress concerning such re- which could be used as collateral and Commission shall appoint such additional ports; and security in time of need, leaves min- personnel as the Commission determines to (2) take action to appropriately dissemi- isters vulnerable in their retirement be necessary. nate such reports. years and justifies the need for includ- (3) APPLICABILITY OF CIVIL SERVICE LAWS.— (c) TERMINATION OF COMMISSION.— ing church pension beneficiaries in an The staff director and other members of the (1) FINAL REPORT.—At such time as a ma- exception to the general limitation. staff of the Commission shall be appointed jority of the members of the Commission de- The Code further punishes church without regard to the provisions of title 5, termines that the reasons for the establish- pensions by requiring church plans to ment of the Commission no longer exist, the United States Code, governing appointments pay unrelated business income taxes on in the competitive service, and shall be paid Commission shall submit to Congress a final without regard to the provisions of chapter report containing information described in investments in leveraged real estate, 51 and subchapter III of chapter 53 of such subsection (a). while exempting the vast majority of title relating to classification and General (2) TERMINATION.—The Commission, and all retirement plans from this very same Schedule pay rates. the authorities of this Act, shall terminate tax. (4) EXPERTS AND CONSULTANTS.—With the 60 days after the date on which the final re- This unequal treatment is simply un- approval of the Commission, the staff direc- port is submitted under paragraph (1), and fair, and it is time we correct it. tor may procure temporary and intermittent the Commission may use such 60-day period The legislation I am introducing services under section 3109(b) of title 5, for the purpose of concluding its activities. today would rectify this unequal treat- United States Code. SEC. 10. FUNDING. ment by exempting church plans from (d) PHYSICAL FACILITIES.—The Architect of There are authorized such sums as nec- the 415(b)(1)(B) limit and the unrelated the Capitol, in consultation with the appro- essary to carry out this Act. priate entities in the legislative branch, business income tax. I ask my colleagues to join me today shall locate and provide suitable office space By Mrs. HUTCHISON: in establishing parity for the bene- for the operation of the Commission on a S. 2193. A bill to amend the Internal ficiaries of church pensions by sup- nonreimbursable basis. The facilities shall Revenue Code of 1986 to establish fair- serve as the headquarters of the Commission porting this necessary, long over-due and shall include all necessary equipment ness in the treatment of certain pen- fix to the Internal Revenue Code. and incidentals required for the proper func- sion plans maintained by churches, and Mr. President, I ask unanimous con- tioning of the Commission. for other purposes; to the Committee sent that the text of the bill be printed (e) ADMINISTRATIVE SUPPORT SERVICES AND on Finance. in the RECORD. OTHER ASSISTANCE.— Mrs. HUTCHISON. Mr. President, I There being no objection, the bill was (1) IN GENERAL.—Upon the request of the rise today to introduce a bill to fix an ordered to be printed in the RECORD, as Commission, the Architect of the Capitol unfortunate application of our current and the Administrator of General Services follows: shall provide to the Commission on a nonre- pension rules on church pension bene- S. 2193 imbursable basis such administrative sup- ficiaries. Be it enacted by the Senate and House of Rep- port services as the Commission may re- Church pensions are critically impor- resentatives of the United States of America in quest. tant compensation plans that help sup- Congress assembled,

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00101 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S136 CONGRESSIONAL RECORD — SENATE January 25, 2006 SECTION 1. EXTENDING WAIVER OF DEFINED mother, pursuant to the terms of her Whereas Foreign Secretary of the United BENEFIT COMPENSATION LIMIT TO original visa. Kingdom Jack Straw warned Iranian offi- PARTICIPANTS IN CHURCH PLANS The Shestakov family’s problems cials that they were ‘‘pushing their luck’’ by WHO ARE NOT HIGHLY COM- removing the United Nations seals that were PENSATED EMPLOYEES. began when they overstayed their visa placed on the Natanz facility by the IAEA 2 (a) IN GENERAL.—Paragraph (11) of section due to an error by their attorney, who years earlier; 415(b) of the Internal Revenue Code of 1986 is did not file the extension paperwork on Whereas President of France Jacques amended by adding at the end the following: their behalf, as requested. Chirac said that the Governments of Iran ‘‘Subparagraph (B) of paragraph (1) shall not These are upstanding members of the and North Korea risk making a ‘‘serious apply to a plan maintained by an organiza- error’’ by pursuing nuclear activities in defi- tion described in section 3121(w)(3) except Alaska community, and they should ance of international agreements; with respect to highly compensated benefits. not be punished due to an error by Whereas Foreign Minister of Germany For purposes of this paragraph, the term their former attorney. I would like to Frank-Walter Steinmeier said that the Gov- ‘highly compensated benefits’ means any see this family reunited in Alaska, so ernment of Iran had ‘‘crossed lines which it benefits accrued for an employee in any year that they can continue to contribute knew would not remain without con- on or after the first year in which such em- positively to our community. sequences’’; ployee is a highly compensated employee (as Whereas Secretary of State Condoleezza defined in section 414(q)) of the organization f Rice stated, ‘‘It is obvious that if Iran can- described in section 3121(w)(3). For purposes SUBMITTED RESOLUTIONS not be brought to live up to its international of applying paragraph (1)(B) to highly com- obligations, in fact, the IAEA Statute would pensated benefits, all benefits of the em- indicate that Iran would have to be referred ployee otherwise taken into account (with- SENATE RESOLUTION 349—CON- to the U.N. Security Council.’’; out regard to this paragraph) shall be taken DEMNING THE GOVERNMENT OF Whereas President of Iran Mahmoud into account.’’. IRAN FOR VIOLATING THE Ahmadinejad stated, ‘‘The Iranian govern- (b) EFFECTIVE DATE.—The amendments made by this section shall apply to plan TERMS OF THE 2004 PARIS ment and nation has no fear of the Western years beginning after December 31, 2005. AGREEMENT, AND EXPRESSING ballyhoo and will continue its nuclear pro- grams with decisiveness and wisdom.’’; SEC. 2. EQUALIZING TREATMENT OF RETIRE- SUPPORT FOR EFFORTS TO Whereas the United States has joined with MENT INCOME ACCOUNTS PRO- REFER IRAN TO THE UNITED NA- VIDED BY CHURCHES WITH RE- TIONS SECURITY COUNCIL FOR the Governments of Britain, France, and SPECT TO ACQUISITION INDEBTED- Germany in calling for a meeting of the NESS. ITS NONCOMPLIANCE WITH IAEA to discuss Iran’s non-compliance with (a) IN GENERAL.—Section 514(c)(9)(C) of the INTERNATIONAL ATOMIC EN- its IAEA obligations; Internal Revenue Code of 1986 (defining ERGY AGENCY OBLIGATIONS Whereas President Ahmadinejad has stated qualified organization) is amended by strik- Mr. SANTORUM (for himself and Mr. that Israel should be ‘‘wiped off the map’’; ing ‘‘or’’ at the end of clause (ii), by striking and KYL) submitted the following resolu- the period at the end of clause (iii) and in- Whereas the international community is in serting ‘‘; or’’ , and by adding at the end the tion; which was referred to the Com- agreement that the Government of Iran following: mittee on Foreign Relations: should not seek the development of nuclear ‘‘(iv) a retirement income account (as de- S. RES. 349 weapons: fined in section 403(b)(9)(B)).’’. Whereas the International Atomic Energy Now, therefore, be it (b) EFFECTIVE DATE.—The amendments Agency (IAEA) reported in November 2003 Resolved, That the Senate— made by this section shall apply to taxable that Iran had been developing an undeclared (1) condemns the decisions of the Govern- years beginning after December 31, 2005. nuclear enrichment program for 18 years and ment of Iran to remove United Nations seals had covertly imported nuclear material and from its uranium enrichment facilities and By Mr. STEVENS: equipment, carried out over 110 unreported to resume nuclear research efforts; S. 2194. A bill for the relief of experiments to produce uranium metal, sep- (2) commends the Governments of Britain, Nadezda Shestakova; to the Committee arated plutonium, and concealed many other France, and Germany for their efforts to se- on the Judiciary. aspects of its nuclear facilities; cure the 2004 Paris Agreement, which re- Whereas, in November 2004, the Govern- sulted in the brief suspension in Iran of nu- By Mr. STEVENS: ments of the United Kingdom, France, and clear enrichment activities; S. 2195. A bill for the relief of Ilya Germany entered into an agreement with (3) supports the referral of Iran to the United Nations Security Council under Arti- Shestakov; to the Committee on the Iran on Iran’s nuclear program (commonly known as the ‘‘Paris Agreement’’), success- cle XII.C and Article III.B–4 of the Statute of Judiciary. the IAEA for violating the Paris Agreement; Mr. STEVENS. Mr. President, I offer fully securing a commitment from the Gov- ernment of Iran to voluntarily suspend ura- and today two private relief bills to provide nium enrichment operations in exchange for (4) condemns actions by the Government of lawful permanent resident status to discussions on economic, technological, po- Iran to develop, produce, or acquire nuclear Nadezda Shestakova and her son, Ilya litical, and security issues; weapons. Shestakov. Whereas Article XII.C of the Statute of the f The Shestakov family has lived and IAEA requires the IAEA Board of Governors SENATE RESOLUTION 350—EX- worked in Anchorage, Alaska for more to report the noncompliance of any member of the IAEA with its IAEA obligations to all PRESSING THE SENSE OF THE than ten years. Nadezda has now re- SENATE THAT SENATE JOINT turned to Russia, and Ilya is attending members and to the Security Council and General Assembly of the United Nations; RESOLUTION 23 (107TH CON- high school in Canada, in order to Whereas Article III.B–4 of the Statute of GRESS), AS ADOPTED BY THE avoid further immigration problems, the IAEA specifies that ‘‘if in connection SENATE ON SEPTEMBER 14, 2001, and to demonstrate that they intend to with the activities of the Agency there AND SUBSEQUENTLY ENACTED be good citizens who live within the should arise questions that are within the AS THE AUTHORIZATION FOR letter of the law. competence of the Security Council, the USE OF MILITARY FORCE DOES Nadezda’s husband, Michail, is a legal Agency shall notify the Security Council, as the organ bearing the main responsibility for NOT AUTHORIZE WARRANTLESS immigrant working for Aleut Enter- DOMESTIC SURVEILLANCE OF prise Corporation (AEC), an Alaska na- the maintenance of international peace and security’’; UNITED STATES CITIZENS tive corporation, and their youngest Whereas, in September 2005, the IAEA Mr. LEAHY (for himself and Mr. KEN- son is a United States citizen. Both re- Board of Governors adopted a resolution de- main in Anchorage awaiting the re- NEDY) submitted the following resolu- claring that Iran’s many failures and tion; which was referred to the Com- union of their family. breaches constitute noncompliance in the During their time in Alaska, Michail context of Article XII.C of the Statute of the mittee on the Judiciary: has been an exemplary employee of the IAEA; S. RES. 350 Aleut Corporation. As a matter of fact, Whereas, on January 3, 2006, the Govern- Whereas the Bill of Rights to the United it was the Aleut Corporation who first ment of Iran announced that it planned to States Constitution was ratified 214 years brought this issue to my attention, as restart its nuclear research efforts in direct ago; violation of the Paris Agreement; Whereas the Fourth Amendment to the they wish to support the Shestakov Whereas, in January 2006, Iranian officials, United States Constitution guarantees to family in any way possible. in the presence of IAEA inspectors, began to the American people the right ‘‘to be secure The children have excelled in school, remove United Nations seals from the en- in their persons, houses, papers, and effects, and Nadezda has remained an at-home richment facility in Natanz, Iran; against unreasonable searches and seizures’’;

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00102 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S137 Whereas the Fourth Amendment provides ∑ Mr. LEAHY. Mr. President, today I We have also seen this type of over- that courts shall issue ‘‘warrants’’ to author- am submitting this resolution express- reaching in that same Justice Depart- ize searches and seizures, based upon prob- ing the sense of the Senate that the ment office’s twisted interpretation of able cause; Authorization for Use of Military Whereas the United States Supreme Court the torture statute, an analysis that has consistently held for nearly 40 years that Force, which Congress passed to au- had to be withdrawn; with the deten- the monitoring and recording of private con- thorize military action against those tion of suspects without charges and versations constitutes a ‘‘search and sei- responsible for the attacks on Sep- denial of access to counsel; and with zure’’ within the meaning of the Fourth tember 11, 2001, did not authorize the misapplication of the material wit- Amendment; warrantless eavesdropping on Amer- ness statute as a sort of general pre- Whereas Congress was concerned about the ican citizens. ventive detention law. Such abuses United States Government unconstitution- As Justice O’Connor underscored re- serve to harm our national security as ally spying on Americans in the 1960s and cently, even war ‘‘is not a blank check 1970s; well as our civil liberties. Whereas Congress enacted the Foreign In- for the President when it comes to the In addition, the press reports that telligence Surveillance Act of 1978 (50 U.S.C. rights of the Nation’s citizens.’’ the Pentagon maintains secret data- 1801 et seq.), commonly referred to as Now that the illegal spying of Ameri- bases containing information on a wide ‘‘FISA’’, to provide a legal mechanism for cans has become public and the Presi- cross-section of ordinary Americans, the United States Government to engage in dent has acknowledged the 4-year-old and that the FBI is monitoring law- searches of Americans in connection with in- program, the Bush administration’s abiding citizens in the exercise of their telligence gathering and counterintelligence; lawyers are contending that Congress First Amendment freedoms. When I Whereas Congress expressly enacted the authorized it. The September 2001 Au- worked with Senator WYDEN and others Foreign Intelligence Surveillance Act of thorization to Use Military Force did 1978, and specified provisions of the Federal in 2003 to stop Admiral Poindexter’s criminal code (including those governing no such thing. Republican Senators Total Information Awareness program, wiretaps for criminal investigations), as the also know it and a few have said so an effort designed to datamine infor- ‘‘exclusive means by which domestic elec- publicly. We all know it. The liberties mation on Americans—and we meant tronic surveillance . . . may be conducted’’ and rights that define us as Americans it. And when I added a reporting re- pursuant to law (18 U.S.C. 2511(2)(f)); and the system of checks and balances quirement on Carnivore, the FBI’s Whereas the Foreign Intelligence Surveil- that serve to preserve them should not e-mail monitoring program, to the De- lance Act of 1978 establishes the Foreign In- be sacrificed to threats of terrorism or telligence Surveillance Court (commonly re- partment of Justice Authorizations law ferred to as the ‘‘FISA court’’), and the pro- to the expanding power of the govern- in 2002, we meant it. We demanded that cedures by which the United States Govern- ment. In the days immediately fol- Congress be kept informed and that ment may obtain a court order authorizing lowing those attacks, I said, and I con- any such program not proceed without electronic surveillance (commonly referred tinue to believe, that the terrorists win congressional authorization. to as a ‘‘FISA warrant’’) for foreign intel- if they frighten us into sacrificing our The New York Times reported that ligence collection in the United States; freedoms and what defines us as Ameri- after September 11, 2001, when former Whereas Congress created the FISA court cans. Attorney General John Ashcroft loos- to review wiretapping applications for do- I well remember the days imme- mestic electronic surveillance to be con- ened restrictions on the FBI to permit ducted by any Federal agency; diately after the 9/11 attacks. I helped it to monitor Web sites, mosques, and Whereas the Foreign Intelligence Surveil- open the Senate to business the next other public entities, ‘‘the FBI has lance Act of 1978 provides specific exceptions day. I said then, on September 12, 2001: used that authority to investigate not that allow the President to authorize ‘‘If we abandon our democracy to battle only groups with suspected ties to for- warrantless electronic surveillance for for- them, they win. . . . We will maintain our de- eign terrorists, but also protest groups eign intelligence purposes (1) in emergency mocracy, and with justice, we will use our suspected of having links to violent or situations, provided an application for judi- strength. We will not lose our commitment cial approval from a FISA court is made to the rule of law, no matter how much the disruptive activities.’’ When I learned within 72 hours; and (2) within 15 calendar provocation, because that rule of law has of such efforts and that they reportedly days following a declaration of war by Con- protected us throughout the centuries. It has included monitoring Quakers in Flor- gress; created our democracy. It has made us what ida and possibly Vermont, I wrote to Whereas the Foreign Intelligence Surveil- we are in history. We are a just and good Na- the Secretary of Defense demanding an lance Act of 1978 makes criminal any elec- tion.’’ answer. That was a month ago. So far tronic surveillance not authorized by stat- I joined with others, Republican and he has refused to provide that answer. ute; Democrats, and we engaged in round- Now we have learned that President Whereas the Foreign Intelligence Surveil- the-clock efforts over the next months Bush has, for more than four years, se- lance Act of 1978 has been amended over time by Congress since the September 11, 2001, at- in connection with what came to be the cretly allowed the warrantless wire- tacks on the United States; USA PATRIOT Act. During those days tapping of Americans inside the United Whereas President George W. Bush has the Bush administration never asked States. And we read in the press that confirmed that his administration engages in us for this surveillance authority or to sources at the FBI say that much of warrantless electronic surveillance of Ameri- amend the Foreign Intelligence Sur- what was forwarded to them to inves- cans inside the United States and that he has veillance Act to accommodate such a tigate was worthless and led to dead authorized such warrantless surveillance program. ends. That is a dangerous diversion of more than 30 times since September 11, 2001; Just as we cannot allow ourselves to our investigative resources away from and be lulled into a sense of false comfort Whereas Senate Joint Resolution 23 (107th those who pose real threats, while pre- Congress), as adopted by the Senate on Sep- when it comes to our national security, cious time and effort is devoted to tember 14, 2001, and House Joint Resolution we cannot allow ourselves to be lulled looking into the lives of law-abiding 64 (107th Congress), as adopted by the House into a blind trust regarding our free- Americans. of Representatives on September 14, 2001, to- doms and rights. The Framers built The United States Supreme Court gether enacted as the Authorization for Use checks and balances into our system has consistently held for nearly 40 of Military Force (Public Law 107–40), to au- specifically to counter such abuses and years, since its landmark decision in thorize military action against those respon- undue assertions of power. We must re- Katz v. United States, that the moni- sible for the attacks on September 11, 2001, main vigilant on all fronts or we stand toring and recording of private con- do not contain legal authorization nor ap- prove of domestic electronic surveillance, in- to lose these rights forever. Once lost versations constitutes a ‘‘search and cluding domestic electronic surveillance of or eroded, liberty is difficult if not im- seizure’’ within the meaning of the United States citizens, without a judicially possible to restore. The Bush adminis- Fourth Amendment. Congress enacted approved warrant: Now, therefore, be it tration’s after-the-fact claims about the Foreign Intelligence Surveillance Resolved, That Senate Joint Resolution 23 the breadth of the Authorization to Act of 1978, FISA, to provide a legal (107th Congress), as adopted by the Senate on Use Military Force—as recently as this mechanism for the government to en- September 14, 2001, and subsequently enacted as the Authorization for Use of Military week, in a document prepared at the gage in electronic surveillance of Force (Public Law 107–40) does not authorize White House’s behest by the Depart- Americans in connection with intel- warrantless domestic surveillance of United ment of Justice—are the latest in a ligence gathering. The Foreign Intel- States citizens. long line of manipulations of the law. ligence Surveillance Act, along with

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00103 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S138 CONGRESSIONAL RECORD — SENATE January 25, 2006 the criminal wiretap authority in title Spying on Americans without first its constitutional authority to eaves- 18 of the United States Code, together obtaining the requisite warrants is ille- drop on any person within the United provide the exclusive means by which gal, unnecessary and wrong. No Presi- States—without judicial or legislative the Government may intercept domes- dent can simply declare when he wishes oversight and it claims that the Con- tic electronic communications pursu- to follow the law and when he chooses gress implicitly granted such power in ant to the rule of law. not to, especially when it comes to the the Joint Resolution of 2001. The Foreign Intelligence Surveil- hard-won rights of the American peo- But that Joint Resolution says noth- lance Act has been amended over time, ple. ing about domestic electronic surveil- and it has been adjusted several times The resolution I submit today is in- lance. As Justice O’Connor has said, ‘‘A since the 9/11 attacks. Indeed, much of tended to help set the record straight. state of war is not a blank check for the PATRIOT Act was devoted to It is an important first step toward re- the president when it comes to the modifying FISA to make it easier to storing checks and balances between rights of the nation’s citizens.’’ obtain FISA warrants. But the PA- the co-equal branches of government. I The bipartisan 9/11 Commission made TRIOT Act did not amend FISA to give urge all Senators to support it. clear that the Executive Branch has the Government the authority to con- Mr. KENNEDY. Mr. President, what the burden of proof to justify why a duct warrantless surveillance of Amer- is past is prologue. Today, we see his- particular governmental power should ican citizens. tory repeating itself. In 1978, President be retained—and Congress has the re- If the Bush administration believed Carter signed into law the ‘‘Foreign In- sponsibility to see that adequate guide- that the law was inadequate to deal telligence Surveillance Act,’’ success- lines and oversight are made available. with the threat of terrorism within our fully concluding years of debate on the The Executive Branch has failed to boundaries, it should have come to power of the President to conduct na- meet the 9/11 Commissioners’ burden of Congress and sought to change the law. tional security wiretapping. proof. The American people are not It did not. Indeed, Attorney General As a result of lengthy hearings and convinced that these surveillance Gonzales admitted at a press con- consultation, Congress enacted that methods achieve the right balance be- ference on December 19, 2005, that the law with broad bipartisan support. Its tween our national security and pro- Administration did not seek to amend purpose was clear—to put a check on tection of our civil liberties. FISA to authorize the NSA spying pro- the power of the President to use wire- These issues go to the heart of what gram because it was advised that ‘‘it taps in the name of national security. it means to have a free society. If was not something we could likely One of the clear purposes of that law President Bush can make his own rules get.’’ was to require the government to ob- for domestic surveillance, Big Brother I chaired the Senate Judiciary Com- tain a judicial warrant for all elec- has run amok. If the President believes mittee in 2001 and 2002, when the Presi- tronic surveillance in the United that winning the war on terror requires dent’s secret eavesdropping program States in which communications of new surveillance capabilities, he has a apparently began. I was not informed U.S. citizens might be intercepted. The responsibility to work with Congress to of the program. I learned about it for Act established a secret court, the For- make appropriate changes in existing the first time in the press last month. eign Intelligence Surveillance Court, law. He is not above the law. I thank heaven and the Constitution to review wiretapping applications and that we still have a free press. guarantee that any such electronic sur- Congress and the American people The Bush administration is now ar- veillance followed the rule of law. deserve full and honest answers about guing that when Congress authorized Since 1979, the special court has ap- the Administration’s domestic elec- the use of force in September 2001 to proved nearly 19,000 applications and tronic surveillance activities. On De- attack al Qaeda in Afghanistan, it au- denied only 4. Last year, the Adminis- cember 22, 2005, I asked the President thorized warrantless searches and tration reached an all-time-high with to provide us with answers before the eavesdropping on American citizens. I the number of applications granted. Senate Judiciary Committee began voted for that authorization, and I In the Foreign Intelligence Surveil- hearings on Judge Alito’s nomination know that Congress did not sign a lance Act, Congress established the ex- to the Supreme Court. We got no re- blank check. The notion that Congress clusive means by which electronic sur- sponse. The Senate Judiciary Com- authorized warrantless surveillance in veillance could be conducted in the mittee is scheduled to begin separate the AUMF is utterly inconsistent with United States for national security hearings on February 6 on the Presi- the Attorney General’s admission that purposes. One of the principal goals of dent’s actions. Instead of providing us Congress was not asked for such au- the legislation was to ensure that in- with the documents the Administra- thorization because it was assumed formation obtained from illegal wire- tion relied upon, the Justice Depart- that Congress would say no. taps could not be used to obtain a war- ment continues to circulate summaries Former Senate Majority Leader Tom rant from the Foreign Intelligence Sur- and ‘‘white papers’’ on the legal au- Daschle, who helped negotiate the use veillance Court. We even made sure thorities it purports to have to ignore of force resolution with the White that there would be criminal penalties the law. It now appears that the Presi- House, has confirmed that the subject for anyone who failed to comply with dent did so on at least thirty occasions of warrantless wiretaps of American these rules. after September 11. There is no legiti- citizens never came up, that he did not The PATRIOT Act did not give the mate purpose in denying access by and never would have supported giving President the authority to spy on any- Members of Congress to all of the legal authority to the President for such one without impartial judicial review— thought and analysis that the Presi- wiretaps, and that he is ‘‘confident and neither did the Joint Resolution, dent relied upon when he authorized that the 98 senators who voted in favor enacted in 2001, authorizing the use of these activities. of authorization of force against al force against those responsible for the Every 45 days, the President ordered Qaeda did not believe that they were attacks of September 11th. these activities to be reviewed by the also voting for warrantless domestic The President seemed to agree. In Attorney General, the White House surveillance.’’ 2004, in Buffalo he stated categorically Counsel and the Inspector General of Senator Daschle also noted that the that ‘‘any time that you hear the the National Security Agency. That’s Bush administration sought to add lan- United States talking about a wiretap, not good enough. These are all execu- guage to the resolution that would it requires a court order.’’ He said that tive branch appointees who report di- have explicitly authorized the use of ‘‘Nothing had changed—when we’re rectly to the President. force ‘‘in the United States,’’ but Con- talking about chasing down terrorists, Congress spent seven years consid- gress refused to grant the President we’re talking about getting a court ering and enacting the Foreign Intel- such sweeping power. Maybe that was order before we do so.’’ ligence Surveillance Act. It was not a this Administration’s covert way to Now, however, the President and the hastily conceived idea. We had broad seek the authority to spy on Ameri- administration claim they do not have agreement that both Congressional cans, but Congress did not grant any to comply with the law. Just yester- oversight and judicial oversight were such authority. day, the administration again asserted fundamental—even during emergencies

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00104 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S139 or times of war, which is why we estab- in its most recent Country Reports on Ter- (5) the United Nations Security Council lished a secret court to expedite the re- rorism that Iran ‘‘remained the most active should adopt reductions in diplomatic ex- view of sensitive applications from the state sponsor of terrorism in 2004’’; changes with Iran, limit travel by some Ira- government. Whereas President of Iran Mahmoud nian officials, and limit or ban sports or cul- Ahmadinejad has made repeated anti-Amer- tural exchanges with Iran; Now, the administration has made a ican and anti-semitic statements, including (6) the President should more faithfully unilateral decision that Congressional denying the occurrence of the Holocaust and implement the Iran and Libya Sanctions Act and judicial oversight can be discarded, Israel’s right to exist, and called on people to of 1996 (50 U.S.C. 1701 note) (commonly in spite of what the law obviously re- imagine a world without the United States; known as ‘‘ILSA’’), and Congress should— quires. We need a thorough investiga- Whereas Iran’s recent acquisition of new (A) increase the requirements on the Presi- tion of these activities. Congress and anti-ship capabilities to block the Strait of dent to justify waiving ILSA-related sanc- the American people deserve answers, Hormuz at the entrance to the Persian Gulf tions; (B) repeal the sunset provision of ILSA; and they deserve answers now.∑ and the decision by the Government of Rus- sia to sell the Government of Iran (C) set a 90-day time limit for the Presi- f $1,000,000,000 in weapons, mostly for 29 anti- dent to determine whether an investment aircraft missile systems, is most regrettable constitutes a violation of ILSA; and SENATE RESOLUTION 351—RE- and should dampen United States-Russian (D) make exports to Iran of technology re- SPONDING TO THE THREAT relations; lated to weapons of mass destruction POSED BY IRAN’S NUCLEAR PRO- Whereas the behavior of the Government of sanctionable under ILSA; GRAM Iran does not reflect that country’s rich his- (7) the United States should withdraw its support for Iran’s accession to the WTO until Mr. BAYH submitted the following tory and the democratic aspirations of most people in Iran; Iran meets weapons of mass destruction, resolution; which was referred to the Whereas the people of the United States human rights, terrorism, and regional sta- Committee on Foreign Relations: stand with the people of Iran in support of bility standards; and S. RES. 351 democracy, the rule of law, religious free- (8) the United States must make the Gov- Whereas Iran is precipitating a grave nu- dom, and regional and global stability; ernment of Iran understand that if its nu- clear crisis with the international commu- Whereas, although Iran is subject to a clear activity continues it will be treated as nity that directly impacts the national secu- range of unilateral sanctions and some third a pariah state. rity of the United States and the efficacy of country and foreign entities sanctions, these f sanctions have not been fully implemented; the International Atomic Energy Agency SENATE CONCURRENT RESOLU- (IAEA) and the Treaty on the Non-Prolifera- Whereas Iran remains vulnerable to inter- tion of Nuclear Weapons, done at Wash- national sanctions, especially with respect TION 76—CONDEMNING THE GOV- ington, London, and Moscow July 1, 1968, and to financial services and foreign investment ERNMENT OF IRAN FOR ITS FLA- entered into force March 5, 1970 (commonly in its petroleum sector and oil sales, few for- GRANT VIOLATIONS OF ITS OB- referred to as the ‘‘Nuclear Non-Prolifera- eign nations have joined the United States in LIGATIONS UNDER THE NU- tion Treaty’’); attempting to isolate the regime in Iran and CLEAR NON-PROLIFERATION Whereas the United States welcomes a dip- compel compliance with Iran’s international TREATY, AND CALLING FOR lomatic solution to the nuclear crisis, but obligations; Whereas, although Iran may be one of the CERTAIN ACTIONS IN RESPONSE the Government of Iran continues to reject a TO SUCH VIOLATIONS peaceful resolution to the matter; world’s largest exporters of oil, it does not Whereas, although the Government of Iran have the refining capacity to make the gaso- Mr. COLEMAN (for himself, Mr. agreed to suspend uranium enrichment ac- line necessary to make its economy run and SCHUMER, Mr. LAUTENBERG, Mr. ALLEN, tivities and to sign and ratify the IAEA’s Ad- currently imports 40 percent of its refined Mr. DEWINE, Mr. BROWNBACK, Mr. NEL- gasoline from abroad; ditional Protocol on expansive, intrusive no- SON of Nebraska, Mr. NELSON of Flor- Whereas more complete implementation of notice inspections in 2003, it has repeatedly ida, and Mrs. FEINSTEIN) submitted the failed to live up to its obligations under this United States sanctions laws and the adop- tion of additional statutes would improve following concurrent resolution; which agreement; was referred to the Committee on For- Whereas the Government of Iran broke the chances of a diplomatic solution to the IAEA seals on some centrifuges in Sep- nuclear crisis with Iran; eign Relations: tember 2004, converted uranium to a gas Whereas President George W. Bush has for S. CON. RES. 76 needed for enrichment in May 2005, limited 4 years given too little attention to the Whereas the Government of Iran concealed IAEA inspectors to a few sites, and said it growing nuclear problem in Iran beyond rhe- a nuclear program from the International would restart uranium conversion activities; torical sound bites and has carried out an Atomic Energy Agency (IAEA) and the inter- Whereas the Board of Governors of the Iran policy consisting of loud denunciations national community for nearly two decades IAEA declared in September 2005 that Iran followed by minimal action and ultimate until it was revealed in 2002; was in non-compliance of its Nuclear Non- deference of managing the crisis to Europe, a Whereas the Government of Iran has re- Proliferation Treaty obligations; policy that has been riddled with contradic- peatedly deceived the IAEA about a variety Whereas Iran announced on January 3, tion and inconsistency and damaging to of nuclear-related activities, including ura- 2006, that it would resume uranium ‘‘re- United States national security; nium enrichment and laboratory-scale sepa- search’’ activities at Natanz and invited Whereas, had President Bush effectively ration of plutonium; IAEA to witness the breaking of IAEA seals marshaled world opinion in 2002 and not Whereas the Government of Iran recently at the facility; wasted valuable time, diverted resources, removed IAEA seals from a uranium enrich- Whereas the Government of Iran has ac- and ignored the problem in Iran, the United ment facility at Natanz and announced the knowledged deceiving the IAEA for the past States would not be faced with the full ex- resumption of ‘‘research’’ on nuclear fuel in 18 years for not disclosing an uranium en- tent of the current nuclear crisis in Iran; a brazen affront to the international commu- richment facility in Natanz and a heavy Whereas action now is imperative and time nity; water production plant in Arak; is of the essence; and Whereas members of the international Whereas the Government of Iran’s human Whereas the opportunity the United States community have agreed that the pursuit of rights practices and strict limits on democ- has to avoid the choice between military ac- uranium enrichment capabilities comprises a racy have been consistently criticized by tion and a nuclear Iran may be measured ‘‘red line’’ for United Nations Security Coun- United Nations reports; only in months: Now, therefore, be it cil referral that has now been unequivocally Whereas the Department of State stated in Resolved, That it is the sense of the Senate crossed by Iran; its most recent Country Reports on Human that— Whereas this provocation represents only Rights Practices that Iran’s already poor (1) the United States should cut assistance the latest action by the Government of Iran human rights record ‘‘worsened’’ during the to countries whose companies are investing in a long pattern of intransigence relating to previous year and deemed Iran a country ‘‘of in Iran’s energy sector, including pipelines its nuclear program, including its violation particular concern’’ in its most recent Inter- to export Iranian crude; of an October 2003 agreement with the national Religious Freedom Report; (2) supplies of refined gasoline to Iran United Kingdom, Germany, and France (the Whereas the Government of Iran funds ter- should be cut off; ‘‘EU-3’’) only months after the agreement ror and rejectionist groups in Gaza and the (3) there should be a worldwide, com- was signed, its unilateral violation of the West Bank, Lebanon, Iraq, and Afghanistan prehensive ban on sales of weapons to Iran, 2004 agreement with the EU-3 to suspend its and is providing material support to groups including from Russia and China; enrichment program (commonly known as directly involved in the killing of United (4) the United Nations Security Council the ‘‘Paris Agreement’’), its failure to pro- States citizens; should impose an intrusive IAEA-led weap- vide IAEA inspectors access to various nu- Whereas Iran has been designated by the ons of mass destruction inspection regime on clear sites, and its refusal to answer out- United States as a state sponsor of terrorism Iran similar to that imposed on Iraq after standing questions related to its nuclear pro- since 1984, and the Department of State said the 1991 Persian Gulf war; gram;

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00105 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S140 CONGRESSIONAL RECORD — SENATE January 25, 2006 Whereas the regime in Iran has made clear the United Nations Security Council and by Austin an enrolled copy of this resolution for the nefarious intentions behind its nuclear taking appropriate measures in response to appropriate display. program in a series of inflammatory and rep- Iran’s violations of its commitments under rehensible statements, including calling for the Nuclear Non-Proliferation Treaty. f Israel to be ‘‘wiped off the map’’ at a con- f ference titled ‘‘A World without Zionism’’ and asserting that the Holocaust was a SENATE RESOLUTION 352—COM- SENATE RESOLUTION 353—EX- ‘‘myth’’ and that Israel should be transferred MENDING THE UNIVERSITY OF PRESSING CONCERN WITH THE to Europe; TEXAS AT AUSTIN LONGHORNS DELIBERATE UNDERMINING OF Whereas previous activities of the regime, FOOTBALL TEAM FOR WINNING including the sponsorship of terrorist groups DEMOCRATIC FREEDOMS AND THE 2005 BOWL CHAMPIONSHIP JUSTICE IN CAMBODIA BY PRIME such as Hezbollah, Hamas, and Islamic Jihad SERIES NATIONAL CHAMPION- through the provision of funding, training, MINISTER HUN SEN AND THE weapons, and safe haven and the destabiliza- SHIP GOVERNMENT OF CAMBODIA tion of neighboring countries such as Iraq, Mrs. HUTCHISON (for herself and Israel, and Lebanon, indicate that a nuclear- Mr. CORNYN) submitted the following Mr. FRIST (for himself, Mr. REID, armed Iran would pose an unprecedented resolution; which was considered and Mr. MCCONNELL, Mr. MCCAIN, Mr. threat to the national security of the United agreed to: COLEMAN, and Mr. LUGAR) submitted States; Whereas the Director General of the IAEA, S. RES. 352 the following resolution; which was Mohamed El Baradei, has publicly stated Whereas the Longhorns won the BCS na- considered and agreed to: that once the Government of Iran perfects tional championship game, defeating the its capability to produce nuclear material University of Southern California by a score S. RES. 353 and completes a parallel weaponization pro- of 41–38 at the Rose Bowl in Pasadena, Cali- Whereas the United States affirms its sup- gram, it would be only months away from fornia on January 4, 2006; port and respect for the welfare, human building a nuclear bomb; Whereas the Longhorns have now won four rights and dignity of the people of Cambodia; Whereas the Institute for Science and football national titles; Whereas, under the leadership of Prime International Security, a Washington, D.C., Whereas this historic victory—the 800th Minister Hun Sen, the Government of Cam- nonproliferation advocacy group, released a win in school history—marks the culmina- bodia has engaged in a systematic campaign January 2, 2006, satellite photograph showing tion of an undefeated, 13–0 season; to undermine the democratic opposition, sti- extensive new construction at the Natanz fa- Whereas, by scoring 652 points during their fle critics of the Government, and silence cility; undefeated season, the Longhorns set an and intimidate civil society in Cambodia; Whereas the IAEA Board of Governors NCAA record for points scored in a single Whereas, despite constitutional guarantees passed a resolution on September 24, 2005, in- season; of freedom of expression and association in dicating that Iran’s noncompliance with its Whereas the University of Texas now owns Cambodia, Prime Minister Hun Sen and the IAEA obligations would result in the referral the longest-active winning streak in the Na- Government of Cambodia have consistently of Iran to the United Nations Security Coun- tion at 20 games; and blatantly violated basic democratic Whereas, under the leadership of Coach cil under Article XII.C of the Statute of the principles, the rule of law, and human rights Mack Brown, the Longhorns claimed the Big IAEA; in Cambodia; 12 Conference South Division title, won the Whereas each member of the EU-3, the Whereas the United States, the United Na- Big 12 Conference championship, and earned leading partner of the United States in diplo- tions, and other international donors have their eighth consecutive bowl game berth; matic efforts regarding Iran’s nuclear pro- publicly expressed concern with Prime Min- Whereas the Longhorns boast seven All- gram, has publicly stated its intention to ister Hun Sen’s authoritarian conduct (in- Americans, including Will Allen, Justin refer Iran to the United Nations Security cluding inappropriate influence and control Council and called for an ‘‘extraordinary Blalock, Aaron Harris, Michael Huff, Jona- over the judiciary) and the official corrup- meeting’’ of the IAEA Board of Governors on than Scott, Rodrigue Wright, and Vince tion and climate of impunity that exist in February 2, 2006; Young; Cambodia today; Whereas the Governments of China and Whereas quarterback Vince Young—a Whereas evidence of the campaign to un- Russia have expressed agreement with the Heisman Trophy finalist, recipient of the United States and the EU-3 that the Govern- Davey O’Brien National Quarterback Award, dermine the democratic opposition in Cam- ment of Iran has violated its commitments and the Maxwell Award winner—was named bodia is found in the revocation of par- to the IAEA; the Most Valuable Player of the Rose Bowl; liamentary immunity of opposition leaders Whereas China and Russia sit on the Whereas, Vince Young scored three touch- Sam Rainsy, Chea Poch, and Cheam Channy, United Nations Security Council, and their downs and gained 467 total yards in the and the 7-year prison sentence of Cheam cooperation would be required to enact any championship game, and he became the first Channy for allegedly forming ‘‘a secret army substantive Security Council measures player in NCAA history to rush for more to overthrow the government’’ and 18-month against the Government of Iran; and than 1,000 yards and pass for more than 3,000 sentence in absentia of Sam Rainsy on Whereas the Government of Iran has dem- in the same season; charges of allegedly defaming Prime Min- onstrated no interest in Russia’s offer to en- Whereas the Longhorns were captained by ister Hun Sen; rich Iran’s uranium feedstock into power Ahmard Hall, David Thomas, Rodrique Whereas evidence of the campaign to stifle plant fuel on Russian territory, further dem- Wright, and Vince Young at the Rose Bowl; critics of the Government of Cambodia is onstrating its aversion to compromise: Whereas Ahmard Hall, the male 2005 Big 12 found in the detention and charges of crimi- Now, therefore, be it Sportsperson of the Year, served his country nal defamation of radio journalist Mom Resolved by the Senate (the House of Rep- as a Sergeant in the United States Marine Sonando and Rong Chhum, president of the resentatives concurring), That Congress— Corps for four years—serving tours in Kosovo Cambodian Independent Teachers Associa- (1) categorically condemns the Govern- and Operation Enduring Freedom in Afghani- tion; ment of Iran for its flagrant violations of its stan—prior to joining the team as a walk-on Whereas the decision by Prime Minister obligations under the Treaty on the Non- in 2003 and ultimately rising to the position Hun Sen and the Government of Cambodia Proliferation of Nuclear Weapons, done at of starting fullback and team captain; on January 25, 2006, to drop all charges Washington, London, and Moscow July 1, Whereas the entire Longhorns team should against Mom Sonando, Rong Chhum, Kem 1968, and entered into force March 5, 1970 be commended for its inspirational work, de- Sokha, and Pa Nguon is a welcome step, but (commonly referred to as the ‘‘Nuclear Non- termination, and success; does little to alleviate the underlying cli- Proliferation Treaty’’); Whereas the University of Texas at Austin mate of intimidation in Cambodia; (2) calls for the immediate suspension of has a long tradition of athletic and academic Whereas evidence of the campaign to si- all uranium enrichment activities of the excellence; and lence and intimidate civil society is found in Government of Iran; Whereas the Longhorns have brought great the arrest and detention of human rights ac- (3) supports calls for an emergency meet- honor to themselves, their university, and tivist Kem Sokha, Yeng Virak, and Pa ing of the Board of Governors of the IAEA the great State of Texas: Now, therefore, be Nguon on charges of criminal defamation; for the purpose of immediately referring Iran it Whereas other champions of democracy in to the United Nations Security Council; Resolved, That the Senate— Cambodia, including former parliamentarian (4) calls on all nuclear suppliers to cease (1) commends the University of Texas at Om Radsady and labor leader Chea Vichea, immediately cooperation with Iran on nu- Austin Longhorns football team for winning were brutally murdered in Cambodia, and no clear materials, equipment, and technology; the 2005 Bowl Championship Series national one has been brought to justice for commit- and championship; ting these heinous crimes; (5) calls on the Governments of Russia and (2) congratulates the team for completing Whereas Cambodia is a donor dependant China to demonstrate that they are respon- an undefeated, 13–0 season; and country, and more than $2,000,000,000 has sible stakeholders in the international com- (3) directs the Secretary of the Senate to been invested by donors in the democratic munity by supporting efforts to refer Iran to make available to the University of Texas at development of that country; and

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00106 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S141 Whereas the current atmosphere of intimi- The PRESIDING OFFICER. Without Mr. THUNE. Mr. President, I ask dation and fear calls into question the viabil- objection, it is so ordered. unanimous consent that the concur- ity of the Khmer Rouge Tribunal: Now, COMMITTEE ON FOREIGN RELATIONS rent resolution be agreed to and the therefore, be it motion to reconsider be laid upon the Resolved, That the Senate— Mr. MARTINEZ. Mr. President, I ask (1) affirms the support and respect of the unanimous consent that the Com- table. United States for the welfare, human rights, mittee on Foreign Relations be author- The PRESIDING OFFICER. Without and dignity of the people of Cambodia; ized to meet during the session of the objection, it is so ordered. (2) calls on Prime Minister Hun Sen and Senate on Wednesday, January 25, 2006, The concurrent resolution (S. Con. the Government of Cambodia to immediately at 9:30 a.m., to hold a hearing on nomi- Res. 77) was agreed to, as follows: cease and desist from its systematic cam- nations. S. CON. RES. 77 paign to undermine democracy, the rule of The PRESIDING OFFICER. Without Resolved by the Senate (the House of Rep- law, and human rights in Cambodia; resentatives concurring), That the two Houses (3) calls on Prime Minister Hun Sen and objection, it is so ordered. of Congress assemble in the Hall of the the Government of Cambodia to immediately COMMITTEE ON FOREIGN RELATIONS House of Representatives on Tuesday, Janu- release all political prisoners and drop all Mr. MARTINEZ. Mr. President, I ask ary 31, 2006, at 9 p.m., for the purpose of re- politically motivated charges against oppo- unanimous consent that the Com- ceiving such communication as the Presi- nents of the government; mittee on Foreign Relations be author- dent of the United States shall be pleased to (4) calls on Prime Minister Hun Sen and ized to meet during the session of the make to them. the Government of Cambodia to demonstrate Senate on Wednesday, January 25, 2006, through words and deed the government’s f commitment to democracy, the rule of law, at 2:30 p.m., to hold a hearing on nomi- nations. APPOINTMENT OF COMMITTEE TO and human rights in Cambodia; ESCORT THE PRESIDENT OF THE (5) calls upon the King of Cambodia to play The PRESIDING OFFICER. Without a more active and constructive role in pro- objection, it is so ordered. UNITED STATES tecting the constitutional rights of all Cam- COMMITTEE ON FOREIGN RELATIONS Mr. THUNE. Mr. President, I ask bodian citizens; and Mr. MARTINEZ. Mr. President, I ask unanimous consent the Presiding Offi- (6) urges international donors and multi- unanimous consent that the Com- cer of the Senate be authorized to ap- lateral organizations, including the World mittee on Foreign Relations be author- point a committee on the part of the Bank, the Asian Development Bank, and the United Nations, to hold Prime Minister Hun ized to meet during the session of the Senate to join with the like committee Sen and the Government of Cambodia fully Senate on Wednesday, January 25, 2006, on the part of the House of Representa- accountable for actions that undermine the at 4:30 p.m., to hold a hearing on nomi- tives to escort the President of the investment of international donors in the nations. United States into the House Chamber democratic and economic development of The PRESIDING OFFICER. Without for the joint session to be held at 9 p.m. Cambodia. objection, it is so ordered. on Tuesday, January 31, 2006. f COMMITTEE ON HOMELAND SECURITY AND The PRESIDING OFFICER. Without SENATE CONCURRENT RESOLU- GOVERNMENTAL AFFAIRS objection, it is so ordered. TION 77—TO PROVIDE FOR A Mr. MARTINEZ. Mr. President, I ask f unanimous consent that the Com- JOINT SESSION OF CONGRESS TO CONGRATULATING UNIVERSITY OF mittee on Homeland Security and Gov- RECEIVE A MESSAGE FROM THE TEXAS LONGHORNS PRESIDENT ON THE STATE OF ernmental Affairs be authorized to Mr. THUNE. Mr. President, I ask THE UNION meet on Wednesday, January 25, 2006, at 9:30 a.m., for a hearing titled, ‘‘Lob- unanimous consent the Senate now Mr. FRIST (for himself and Mr. REID) bying Reform: Proposals and Issues.’’ proceed to the consideration of S. Res. submitted the following concurrent The PRESIDING OFFICER. Without 352 which was submitted earlier today. resolution; which was considered and objection, it is so ordered. The PRESIDING OFFICER. The agreed to: f clerk will report the resolution by S. CON. RES. 77 title. PRIVILEGES OF THE FLOOR Resolved by the Senate (the House of Rep- The legislative clerk read as follows: resentatives concurring), That the two Houses Mr. CORNYN. Madam President, I A resolution (S. Res. 352) commending the of Congress assemble in the Hall of the ask unanimous consent that the privi- University of Texas at Austin Longhorns House of Representatives on Tuesday, Janu- lege of the floor be granted for the re- football team for winning the 2005 Bowl ary 31, 2006, at 9 p.m., for the purpose of re- mainder of the 109th Congress to Reed Championship Series national championship. ceiving such communication as the Presi- O’Connor, a detailee from the Depart- There being no objection, the Senate dent of the United States shall be pleased to ment of Justice who works on my Sub- proceeded to consider the resolution. make to them. committee on Immigration, Border Se- Mr. THUNE. Mr. President, I ask f curity, and Citizenship. unanimous consent the resolution be AUTHORITIES FOR COMMITTEES The PRESIDING OFFICER. Without agreed to, the preamble be agreed to, TO MEET objection, it is so ordered. and the motion to reconsider be laid upon the table. COMMITTEE ON ARMED SERVICES f The PRESIDING OFFICER. Without Mr. MARTINEZ. Mr. President, I ask JOINT SESSION OF THE TWO objection, it is so ordered. unanimous consent that the Com- HOUSES TO RECEIVE A MESSAGE The resolution (S. Res. 352) was mittee on Armed Services be author- FROM THE PRESIDENT OF THE agreed to. ized to meet during the session of the UNITED STATES The preamble was agreed to. Senate on Wednesday, January 25, 2006, Mr. THUNE. Mr. President, I ask The resolution, with its preamble, at 3:30 P.m., in closed session, to re- unanimous consent that the Senate reads as follows: ceive an operations and intelligence now proceed to the consideration of S. S. RES. 352 briefing on Iraq. Con. Res. 77 which was submitted ear- The PRESIDING OFFICER. Without Whereas the Longhorns won the BCS na- lier today. tional championship game, defeating the objection, it is so ordered. The PRESIDING OFFICER. The University of Southern California by a score COMMITTEE ON BANKING, HOUSING, AND URBAN clerk will report the concurrent resolu- of 41–38 at the Rose Bowl in Pasadena, Cali- AFFAIRS tion by title. fornia on January 4, 2006; Mr. MARTINEZ. Mr. President, I ask The legislative clerk read as follows: Whereas the Longhorns have now won four unanimous consent that the Com- A concurrent resolution (S. Con. Res. 77) to football national titles; mittee on Banking, Housing, and provide for a joint session of Congress to re- Whereas this historic victory—the 800th Urban Affairs be authorized to meet ceive a message from the President on the win in school history—marks the culmina- State of the Union. tion of an undefeated, 13–0 season; during the session of the Senate on Whereas, by scoring 652 points during their January 25, 2006, at 10 a.m., to conduct There being no objection, the Senate undefeated season, the Longhorns set an a hearing on ‘‘Proposals To Reform the proceeded to consider the concurrent NCAA record for points scored in a single National Flood Insurance Program.’’ resolution. season;

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00107 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY S142 CONGRESSIONAL RECORD — SENATE January 25, 2006 Whereas the University of Texas now owns right of free political exchange. I am S. RES. 353 the longest-active winning streak in the Na- hopeful that today’s action represents Whereas the United States affirms its sup- tion at 20 games; progress and a greater commitment to port and respect for the welfare, human Whereas, under the leadership of Coach human rights and civil society on the rights and dignity of the people of Cambodia; Mack Brown, the Longhorns claimed the Big Whereas, under the leadership of Prime 12 Conference South Division title, won the part of the ruling authority. In recent months, we have had cause Minister Hun Sen, the Government of Cam- Big 12 Conference championship, and earned bodia has engaged in a systematic campaign their eighth consecutive bowl game berth; for alarm that the Government of Cam- to undermine the democratic opposition, sti- Whereas the Longhorns boast seven All- bodia is engaged in a campaign of po- fle critics of the Government, and silence Americans, including Will Allen, Justin litical persecution and intimidation. and intimidate civil society in Cambodia; Blalock, Aaron Harris, Michael Huff, Jona- Prime Minister Hun Sen and his appa- Whereas, despite constitutional guarantees than Scott, Rodrigue Wright, and Vince ratus have consistently and blatantly of freedom of expression and association in Young; violated basic democratic principles, Cambodia, Prime Minister Hun Sen and the Whereas quarterback Vince Young—a the rule of law, and human rights as Government of Cambodia have consistently Heisman Trophy finalist, recipient of the and blatantly violated basic democratic Davey O’Brien National Quarterback Award, enshrined in the Cambodian Constitu- principles, the rule of law, and human rights and the Maxwell Award winner—was named tion. in Cambodia; the Most Valuable Player of the Rose Bowl; Tonight, the Senate stands unified in Whereas the United States, the United Na- Whereas, Vince Young scored three touch- calling upon Prime Minister Sen and tions, and other international donors have downs and gained 467 total yards in the the government of Cambodia: To im- publicly expressed concern with Prime Min- championship game, and he became the first mediately cease and desist from its ister Hun Sen’s authoritarian conduct (in- player in NCAA history to rush for more systematic campaign to undermine de- cluding inappropriate influence and control than 1,000 yards and pass for more than 3,000 over the judiciary) and the official corrup- in the same season; mocracy, the rule of law, and human tion and climate of impunity that exist in Whereas the Longhorns were captained by rights; to immediately release all po- Cambodia today; Ahmard Hall, David Thomas, Rodrique litical prisoners and drop all politically Whereas evidence of the campaign to un- Wright, and Vince Young at the Rose Bowl; motivated charges against opponents dermine the democratic opposition in Cam- Whereas Ahmard Hall, the male 2005 Big 12 of the government; and to demonstrate bodia is found in the revocation of par- Sportsperson of the Year, served his country through word and deed the govern- liamentary immunity of opposition leaders as a Sergeant in the United States Marine ment’s commitment to democracy, the Sam Rainsy, Chea Poch, and Cheam Channy, Corps for four years—serving tours in Kosovo and the 7-year prison sentence of Cheam rule of law, and human rights; Channy for allegedly forming ‘‘a secret army and Operation Enduring Freedom in Afghani- We also call upon the King of Cam- stan—prior to joining the team as a walk-on to overthrow the government’’ and 18-month in 2003 and ultimately rising to the position bodia to play a more active and con- sentence in absentia of Sam Rainsy on of starting fullback and team captain; structive role in protecting the con- charges of allegedly defaming Prime Min- Whereas the entire Longhorns team should stitutional rights of Cambodian citi- ister Hun Sen; be commended for its inspirational work, de- zens. And we urge international donors Whereas evidence of the campaign to stifle termination, and success; and multilateral organizations, includ- critics of the Government of Cambodia is Whereas the University of Texas at Austin ing the World Bank, the Asian Develop- found in the detention and charges of crimi- has a long tradition of athletic and academic nal defamation of radio journalist Mom ment Bank, and the United Nations, to Sonando and Rong Chhum, president of the excellence; and hold the Prime Minister and his gov- Whereas the Longhorns have brought great Cambodian Independent Teachers Associa- honor to themselves, their university, and ernment fully accountable for actions tion; the great State of Texas: Now, therefore, be that undermine the investment of Whereas the decision by Prime Minister it international donors in the democratic Hun Sen and the Government of Cambodia Resolved, That the Senate— and economic development of Cam- on January 25, 2006, to drop all charges (1) commends the University of Texas at bodia. against Mom Sonando, Rong Chhum, Kem Sokha, and Pa Nguon is a welcome step, but Austin Longhorns football team for winning I would like to thank Senator the 2005 Bowl Championship Series national does little to alleviate the underlying cli- MCCONNELL and Senator MCCAIN for mate of intimidation in Cambodia; championship; their leadership and commitment to (2) congratulates the team for completing Whereas evidence of the campaign to si- an undefeated, 13–0 season; and the people of Cambodia. They deserve lence and intimidate civil society is found in (3) directs the Secretary of the Senate to special recognition for their unflagging the arrest and detention of human rights ac- make available to the University of Texas at support. tivist Kem Sokha, Yeng Virak, and Pa Austin an enrolled copy of this resolution for Let me close with a report today in Nguon on charges of criminal defamation; appropriate display. the International Herald Tribune. At a Whereas other champions of democracy in Cambodia, including former parliamentarian f recent gathering of 800 impoverished Om Radsady and labor leader Chea Vichea, farmers and townspeople in a village were brutally murdered in Cambodia, and no CONCERN FOR JUSTICE IN south of the capitol of Phnom Penh, an one has been brought to justice for commit- CAMBODIA elderly Cambodian woman asked: ting these heinous crimes; Mr. THUNE. Mr. President, I ask I have a question for government. You talk Whereas Cambodia is a donor dependant unanimous consent the Senate now about democracy, but how much right do the country, and more than $2,000,000,000 has proceed to the consideration of Senate people of Cambodia have to speak out? If we been invested by donors in the democratic development of that country; and Resolution 353, which was submitted speak out, will we be arrested like Kem Sokha? Whereas the current atmosphere of intimi- earlier today. dation and fear calls into question the viabil- The PRESIDING OFFICER. The I put that question to Prime Minister ity of the Khmer Rouge Tribunal: Now, clerk will report the resolution by Hun Sen. Will the people be allowed to therefore, be it title. speak out as free citizens in an open Resolved, That the Senate— The legislative clerk read as follows: and just democracy? The people of (1) affirms the support and respect of the United States for the welfare, human rights, The resolution (S. Res. 353) expressing con- Cambodia want to know. And on their behalf, the U.S. Senate demands an an- and dignity of the people of Cambodia; cern with the deliberate undermining of (2) calls on Prime Minister Hun Sen and democratic freedoms and justice in Cam- swer. the Government of Cambodia to immediately bodia by Prime Minister Hun Sen and the Mr. THUNE. Mr. President, I ask cease and desist from its systematic cam- Government of Cambodia. unanimous consent the resolution be paign to undermine democracy, the rule of There being no objection, the Senate agreed to, the preamble be agreed to, law, and human rights in Cambodia; proceeded to consider the resolution. and the motion to reconsider be laid (3) calls on Prime Minister Hun Sen and Mr. FRIST. Today, the Prime Min- upon the table. the Government of Cambodia to immediately ister of Cambodia dropped the criminal The PRESIDING OFFICER. Without release all political prisoners and drop all defamation lawsuits against five gov- objection, it is so ordered. politically motivated charges against oppo- ernment critics and human rights ad- nents of the government; The resolution (S. Res. 353) was (4) calls on Prime Minister Hun Sen and vocates. agreed to. the Government of Cambodia to demonstrate Along with the administration, I wel- The preamble was agreed to. through words and deed the government’s come the Prime Minister’s decision and The resolution, with its preamble, commitment to democracy, the rule of law, applaud his efforts to recognize the reads as follows: and human rights in Cambodia;

VerDate Mar 15 2010 00:00 Feb 06, 2014 Jkt 081600 PO 00000 Frm 00108 Fmt 4637 Sfmt 0634 E:\2006SENATE\S25JA6.REC S25JA6 mmaher on DSKCGSP4G1 with SOCIALSECURITY January 25, 2006 CONGRESSIONAL RECORD — SENATE S143 (5) calls upon the King of Cambodia to play ORDERS FOR THURSDAY, DEPARTMENT OF TRANSPORTATION a more active and constructive role in pro- JANUARY 26, 2006 THOMAS J. BARRETT, OF ALASKA, TO BE ADMINIS- tecting the constitutional rights of all Cam- TRATOR OF THE PIPELINE AND HAZARDOUS MATERIALS bodian citizens; and Mr. THUNE. Mr. President, I ask SAFETY ADMINISTRATION, DEPARTMENT OF TRANSPOR- (6) urges international donors and multi- unanimous consent when the Senate TATION. (NEW POSITION) lateral organizations, including the World completes its business today, it stand THE JUDICIARY Bank, the Asian Development Bank, and the in adjournment until 9:45 p.m. on BRETT M. KAVANAUGH, OF MARYLAND, TO BE UNITED United Nations, to hold Prime Minister Hun Thursday, January 26; I further ask STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUM- Sen and the Government of Cambodia fully BIA CIRCUIT, VICE LAURENCE H. SILBERMAN, RETIRED. that following the prayer and pledge, MICHAEL A. CHAGARES, OF NEW JERSEY, TO BE accountable for actions that undermine the the morning hour be deemed expired, UNITED STATES CIRCUIT JUDGE FOR THE THIRD CIR- investment of international donors in the CUIT, VICE MICHAEL CHERTOFF, RESIGNED. democratic and economic development of the Journal of proceedings be approved VANESSA LYNNE BRYANT, OF CONNECTICUT, TO BE to date, the time for the two leaders be UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF Cambodia. CONNECTICUT, VICE DOMINIC J. SQUARTRITO, RETIRED. reserved, and the Senate then proceed RENEE MARIE BUMB, OF NEW JERSEY, TO BE UNITED f to executive session and resume consid- STATES DISTRICT JUDGE FOR THE DISTRICT OF NEW JERSEY, VICE WILLIAM H. WALLS, RETIRED. APPOINTMENTS eration of the nomination of Samuel BRIAN M. COGAN, OF NEW YORK, TO BE UNITED STATES Alito to be an Associate Justice of the DISTRICT JUDGE FOR THE EASTERN DISTRICT OF NEW The PRESIDING OFFICER. The YORK, VICE FREDERIC BLOCK, RETIRED. Supreme Court of the United States as THOMAS M. GOLDEN, OF PENNSYLVANIA, TO BE Chair, on behalf of the Vice President, under the previous order. UNITED STATES DISTRICT JUDGE FOR THE EASTERN pursuant to 10 U.S.C. 4355(a)(1) and DISTRICT OF PENNSYLVANIA, VICE FRANKLIN VAN The PRESIDING OFFICER. Without ANTWERPEN, ELEVATED. 4355(a)(2), appoints the following Sen- objection, it is so ordered. ANDREW J. GUILFORD, OF CALIFORNIA, TO BE UNITED ators to the Board of Visitors of the STATES DISTRICT JUDGE FOR THE CENTRAL DISTRICT f OF CALIFORNIA, VICE DICKRAN M. TEVRIZIAN, JR., RE- U.S. Military Academy: the Senator TIRED. from Maine, Ms COLLINS, designated by PROGRAM NOEL LAWRENCE HILLMAN, OF NEW JERSEY, TO BE UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF the Chairman of the Committee on Mr. THUNE. Mr. President, today we NEW JERSEY, VICE WILLIAM G. BASSLER, RETIRED. Armed Services; the Senator from GRAY HAMPTON MILLER, OF TEXAS, TO BE UNITED have had a full day of debate on the STATES DISTRICT JUDGE FOR THE SOUTHERN DISTRICT Texas, Mrs. HUTCHISON, from the Com- nomination of Judge Alito for the Su- OF TEXAS, VICE EWING WERLEIN, JR., RETIRED. mittee on Appropriations; the Senator SUSAN DAVIS WIGENTON, OF NEW JERSEY, TO BE preme Court. This all-important debate UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF from Rhode Island, Mr. REED, At will continue tomorrow and the bal- NEW JERSEY, VICE JOHN W. BISSELL, RETIRED. Large; and the Senator from Louisiana, S. PAMELA GRAY, OF THE DISTRICT OF COLUMBIA, TO ance of the week. Tomorrow, we will BE AN ASSOCIATE JUDGE OF THE SUPERIOR COURT OF Ms. LANDRIEU, from the Committee on again be alternating hour time blocks THE DISTRICT OF COLUMBIA FOR THE TERM OF FIFTEEN Appropriations. for Members to speak, with the Demo- YEARS, VICE SUSAN REBECCA HOLMES, RETIRED. The Chair, on behalf of the Vice cratic side speaking from 10 until 11 DEPARTMENT OF JUSTICE President, pursuant to 10 U.S.C. and the majority from 11 to 12 and al- STEVEN G. BRADBURY, OF MARYLAND, TO BE AN AS- 6968(a)(1) and 6968(a)(2), appoints the SISTANT ATTORNEY GENERAL, VICE JACK LANDMAN ternating back and forth throughout GOLDSMITH III, RESIGNED. following Senators to the Board of the day. Members are encouraged to DEPARTMENT OF STATE Visitors of the U.S. Naval Academy: use this time to make their state- The Senator from Arizona, Mr. RAJKUMAR CHELLARAJ, OF TEXAS, TO BE AN ASSIST- ments. As the majority leader an- ANT SECRETARY OF STATE (ADMINISTRATION), VICE MCCAIN, designated by the Chairman of nounced earlier today, we are hoping WILLIAM A. EATON, RESIGNED. the Committee on Armed Services; the RICHARD T. MILLER, OF TEXAS, TO BE REPRESENTA- we can work toward a time certain for TIVE OF THE UNITED STATES OF AMERICA ON THE ECO- Senator from Mississippi, Mr. COCHRAN, a vote on the Alito nomination and NOMIC AND SOCIAL COUNCIL OF THE UNITED NATIONS, from the Committee on Appropria- WITH THE RANK OF AMBASSADOR. will notify Members so they can plan RICHARD T. MILLER, OF TEXAS, TO BE AN ALTERNATE tions; the Senator from Maryland, Mr. their schedules accordingly. REPRESENTATIVE OF THE UNITED STATES OF AMERICA SARBANES, At Large; and the Senator TO THE SESSIONS OF THE GENERAL ASSEMBLY OF THE f UNITED NATIONS DURING HIS TENURE OF SERVICE AS from Maryland, Ms. MIKULSKI, from the REPRESENTATIVE OF THE UNITED STATES OF AMERICA Committee on Appropriations. ADJOURNMENT UNTIL 9:45 ON THE ECONOMIC AND SOCIAL COUNCIL OF THE UNITED The Chair, on behalf of the Vice TOMORROW NATIONS. President, pursuant to 10 U.S.C. Mr. THUNE. Mr. President, if there is IN THE COAST GUARD 9355(a)(1) and 9355(a)(2), appoints the no further business to come before the THE FOLLOWING NAMED INDIVIDUAL FOR APPOINT- MENT AS COMMANDANT OF THE UNITED STATES COAST following Senators to the Board of Senate, I ask unanimous consent the GUARD AND TO THE GRADE INDICATED UNDER TITLE 14, Visitors of the U.S. Air Force Acad- Senate stand in adjournment under the U.S.C., SECTION 44: emy: the Senator from Colorado, Mr. previous order. To be admiral ALLARD, designated by the Chairman of There being no objection, the Senate, VICE ADM. THAD W. ALLEN, 0000 the Committee on Armed Services; the at 8:06 p.m., adjourned until Thursday, IN THE ARMY Senator from Idaho, Mr. CRAIG, from January 26, 2006, at 9:45 a.m. THE FOLLOWING NAMED OFFICER FOR APPOINTMENT the Committee on Appropriations; the f IN THE UNITED STATES ARMY TO THE RANK INDICATED Senator from Arkansas, Mr. PRYOR, At WHILE ASSIGNED TO A POSITION OF IMPORTANCE AND Large; and the Senator from South Da- NOMINATIONS RESPONSIBILITY UNDER TITLE 10, U.S.C., SECTION 601: kota, Mr. JOHNSON, from the Com- Executive nominations received by To be lieutenant general mittee on Appropriations. the Senate January 25, 2006: LT. GEN. THOMAS F. METZ, 0000

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SENATE COMMITTEE MEETINGS on the process for considering gaming Energy and Natural Resources applications. To hold hearings to examine the Presi- Title IV of Senate Resolution 4, SR–485 dent’s proposed budget request for fis- agreed to by the Senate on February 4, Judiciary cal year 2007 for the Department of En- 1977, calls for establishment of a sys- To hold hearings to examine consolida- ergy. tem for a computerized schedule of all tion in the energy industry. SD–366 meetings and hearings of Senate com- SD–226 2:30 p.m. mittees, subcommittees, joint commit- 10 a.m. Energy and Natural Resources tees, and committees of conference. Homeland Security and Governmental Af- To hold hearings to examine the Energy This title requires all such committees fairs Information Administration’s 2006 an- To hold hearings to examine Hurricane nual energy outlook on trends and to notify the Office of the Senate Daily Katrina, focusing on managing the cri- issues affecting the United States’ en- Digest—designated by the Rules Com- sis and evacuating New Orleans. ergy market. mittee—of the time, place, and purpose SD–342 SD–366 of the meetings, when scheduled, and 2 p.m. any cancellations or changes in the Judiciary FEBRUARY 14 meetings as they occur. Constitution, Civil Rights and Property 10 a.m. As an additional procedure along Rights Subcommittee Veterans’ Affairs with the computerization of this infor- To hold hearings to examine the death To hold hearings to examine the Presi- penalty in the United States. dent’s proposed budget request for fis- mation, the Office of the Senate Daily SD–226 Digest will prepare this information for cal year 2007 for the Department of Veterans Affairs. printing in the Extensions of Remarks FEBRUARY 2 SR–418 section of the CONGRESSIONAL RECORD 9:30 a.m. on Monday and Wednesday of each Judiciary FEBRUARY 15 week. Business meeting to consider pending 11 a.m. Meetings scheduled for Thursday, calendar business. Energy and Natural Resources January 26, 2006 may be found in the SD–226 Business meeting to consider the Presi- Daily Digest of today’s RECORD. 10:30 a.m. dent’s views and estimates to be sub- Veterans’ Affairs mitted to the Committee on the Budg- To hold hearings to examine ‘‘The Jobs et. MEETINGS SCHEDULED for Veterans Act Three Years Later: SD–366 Are VETS’ Employment Programs 2:30 p.m. JANUARY 30 Working for Veterans?’’. Energy and Natural Resources 2 p.m. SR–418 Public Lands and Forests Subcommittee Homeland Security and Governmental Af- To hold hearings to review the progress fairs FEBRUARY 6 made on the development of interim To resume hearings to examine Hurri- 9:30 a.m. and long-term plans for use of fire re- cane Katrina response issues, focusing Judiciary tardant aircraft in Federal wildfire on urban search and rescue during a ca- To hold hearings to examine wartime ex- suppression operations. tastrophe. ecutive power and the NSA’s surveil- SD–366 SD–342 lance authority. Room to be announced FEBRUARY 28 JANUARY 31 2 p.m. 10 a.m. FEBRUARY 7 Veterans’ Affairs Health, Education, Labor, and Pensions 9:30 a.m. To hold hearings to examine legislative To hold hearings to examine the nomina- Armed Services presentation of the Disabled American tions of Edwin G. Foulke, Jr., of South To hold hearings to examine the defense Veterans. Carolina, to be an Assistant Secretary authorization request for fiscal year SD–106 of Labor, and Richard Stickler, of West 2007 and the future years defense pro- Virginia, to be Assistant Secretary of gram. Labor for Mine Safety and Health. SD–106 POSTPONEMENTS SD–106 Homeland Security and Governmental Af- FEBRUARY 9 FEBRUARY 9 fairs 10 a.m. 2:30 p.m. To hold hearings to examine challenges Commerce, Science, and Transportation Commerce, Science, and Transportation in a catastrophe, focusing on evacu- To hold an oversight hearing to examine To continue oversight hearings to exam- ating New Orleans in advance of Hurri- commercial aviation security, focusing ine commercial aviation security, fo- cane Katrina. on Transportation Security Adminis- cusing on physical screening of airline SD–342 tration’s aviation passenger screening passengers, including issues pertaining programs, Secure Flight and Reg- to Transportation Security Adminis- FEBRUARY 1 istered Traveler, to discuss issues that tration’s Federal passenger screener 9:30 a.m. have prevented these programs from force, TSA procurement policy, air Indian Affairs being launched, and to determine their cargo screening, and the deployment of To hold oversight hearings to examine future. explosive detection technology. off-reservation gaming issues, focusing SD–562 SD–562

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor.

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HIGHLIGHTS Senate began consideration of the nomination of Samuel A. Alito, Jr., of New Jersey, to be an Associate Justice of the Supreme Court of the United States. Senate Supreme Court Nomination: Senate began consid- Chamber Action eration of the nomination of Samuel A. Alito, Jr., of Routine Proceedings, pages S35–S143 New Jersey, to be an Associate Justice of the Su- Measures Introduced on Friday, January 20, preme Court of the United States. Pages S35–S108 2006 During Adjournment: Four bills and four A unanimous-consent-time agreement was reached resolutions were introduced, as follows: S. providing for further consideration of the nomination 2180–2183, S. Res. 349–351, and S. Con. Res. 76. at 9:45 a.m., on Thursday, January 26, 2006. Page S123 Page S143 Measures Introduced Today: Thirteen bills and Escort Committee—Agreement: A unanimous- three resolutions were introduced, as follows: S. consent agreement was reached providing that the 2184–2196, S. Res. 352–353, and S. Con. Res. 77. Presiding Officer of the Senate be authorized to ap- Page S123 point a committee on the part of the Senate to join with a like committee on the part of the House of Measures Reported: Representatives to escort the President of the United Reported on Tuesday, January 24, during the ad- States into the House Chamber for the joint session journment: to be held at 9 p.m., Tuesday, January 31, 2006. S. 1219, to authorize certain tribes in the State of Page S141 Montana to enter into a lease or other temporary conveyance of water rights to meet the water needs Appointments: of the Dry Prairie Rural Water Association, Inc. (S. Board of Visitors of the U.S. Military Academy: Rept. No. 109–213) Page S123 The Chair, on behalf of the Vice President, pursuant Measures Passed: to 10 U.S.C. 4355(a)(1) and 4355(a)(2), appointed the following Senators to the Board of Visitors of the Joint Session of Congress: Senate agreed to S. U.S. Military Academy: Senator Collins, designated Con. Res. 77, to provide for a joint session of Con- by the Chairman of the Committee on Armed Serv- gress to receive a message from the President on the ices, Senator Hutchison, from the Committee on Ap- State of the Union. Page S141 propriations, Senator Reed, At Large, and Senator Congratulating University of Texas Longhorns Landrieu, from the Committee on Appropriations. Football: Senate agreed to S. Res. 352, commending Page S143 the University of Texas at Austin Longhorns football Board of Visitors of the U.S. Naval Academy: team for winning the 2005 Bowl Championship Se- The Chair, on behalf of the Vice President, pursuant ries national championship. Pages S141–42 to 10 U.S.C. 6968(a)(1) and 6968(a)(2), appointed Democracy in Cambodia: Senate agreed to S. Res. the following Senators to the Board of Visitors of the 353, expressing concern with the deliberate under- U.S. Naval Academy: Senator McCain, designated by mining of democratic freedoms and justice in Cam- the Chairman of the Committee on Armed Services, bodia by Prime Minister Hun Sen and the Govern- ment of Cambodia. Pages S142–43 D17

VerDate Aug 31 2005 04:01 Jan 26, 2006 Jkt 049060 PO 00000 Frm 00001 Fmt 0627 Sfmt 0627 E:\CR\FM\D25JA6.REC D25JAPT1 jcorcoran on PROD1PC62 with DIGEST D18 CONGRESSIONAL RECORD — DAILY DIGEST January 25, 2006 Senator Cochran, from the Committee on Appropria- Richard T. Miller, of Texas, to be Representative tions, Senator Sarbanes, At Large, and Senator Mi- of the United States of America on the Economic kulski, from the Committee on Appropriations. and Social Council of the United Nations, with the Page S143 rank of Ambassador. Board of Visitors of the U.S. Air Force Academy: Richard T. Miller, of Texas, to be an Alternate The Chair, on behalf of the Vice President, pursuant Representative of the United States of America to the Sessions of the General Assembly of the United to 10 U.S.C. 9355(a)(1) and 9355(a)(2), appointed Nations during his tenure of service as Representa- the following Senators to the Board of Visitors of the tive of the United States of America on the Eco- U.S. Air Force Academy: Senator Allard, designated nomic and Social Council of the United Nations. by the Chairman of the Committee on Armed Serv- 1 Army nomination in the rank of general. ices, Senator Craig, from the Committee on Appro- 1 Coast Guard nomination in the rank of admiral. priations, Senator Pryor, At Large, and Senator John- Page S143 son, from the Committee on Appropriations. Page S143 Executive Communications: Pages S119–23 Nominations Received: Senate received the fol- Executive Reports of Committees: Page S123 lowing nominations: Additional Cosponsors: Pages S124–26 Thomas J. Barrett, of Alaska, to be Administrator Statements on Introduced Bills/Resolutions: of the Pipeline and Hazardous Materials Safety Ad- Pages S126–41 ministration, Department of Transportation. Additional Statements: Pages S116–19 Brett M. Kavanaugh, of Maryland, to be United States Circuit Judge for the District of Columbia Authorities for Committees to Meet: Page S141 Circuit. Privileges of the Floor: Page S141 Michael A. Chagares, of New Jersey, to be United Adjournment: Senate convened at 9:30 a.m., and States Circuit Judge for the Third Circuit. adjourned at 8:06 p.m., until 9:45 a.m., on Thurs- Vanessa Lynne Bryant, of Connecticut, to be day, January 26, 2006. (For Senate’s program, see United States District Judge for the District of Con- the remarks of the Acting Majority Leader in today’s necticut. Record on page S143.) Renee Marie Bumb, of New Jersey, to be United States District Judge for the District of New Jersey. Committee Meetings Brian M. Cogan, of New York, to be United States District Judge for the Eastern District of New (Committees not listed did not meet) York. Thomas M. Golden, of Pennsylvania, to be United U.S. VISITOR & IMMIGRANT STATUS States District Judge for the Eastern District of INDICATOR TECHNOLOGY Pennsylvania. Committee on Appropriations: Subcommittee on Home- Andrew J. Guilford, of California, to be United land Security concluded a hearing to examine the States District Judge for the Central District of Cali- United States Visitor and Immigrant Status Indi- fornia. cator Technology (U.S. VISIT) program, relating to Noel Lawrence Hillman, of New Jersey, to be United States Entry/Exit Tracking information, al- United States District Judge for the District of New lowing for the collection of the information and Jersey. sharing across the immigration and border manage- Gray Hampton Miller, of Texas, to be United ment systems, after receiving testimony from James States District Judge for the Southern District of A. Williams, Director, U.S. VISIT Program, Depart- Texas. ment of Homeland Security; and Randolph C. Hite, Susan Davis Wigenton, of New Jersey, to be Director, Information Technology Architecture and United States District Judge for the District of New Systems Issues, Government Accountability Office. Jersey. IRAQ S. Pamela Gray, of the District of Columbia, to Committee on Armed Services: Committee met in closed be an Associate Judge of the Superior Court of the session to receive a briefing regarding operations and District of Columbia for the term of fifteen years. intelligence in Iraq from Brigadier General Carter Steven G. Bradbury, of Maryland, to be an Assist- Ham, USA, Deputy Director for Regional Oper- ant Attorney General. ations, J–3, and Rear Admiral David J. Dorsett, Rajkumar Chellaraj, of Texas, to be an Assistant USN, Director of Intelligence, J–2, both of The Secretary of State (Administration). Joint Staff; and MaryBeth Long, Principal Deputy

VerDate Aug 31 2005 04:01 Jan 26, 2006 Jkt 049060 PO 00000 Frm 00002 Fmt 0627 Sfmt 0627 E:\CR\FM\D25JA6.REC D25JAPT1 jcorcoran on PROD1PC62 with DIGEST January 25, 2006 CONGRESSIONAL RECORD — DAILY DIGEST D19 Assistant Secretary of Defense for International Af- Nations, after the nominees testified and answered fairs. questions in their own behalf. NATIONAL FLOOD INSURANCE PROGRAM NOMINATION PROPOSALS Committee on Foreign Relations: Committee concluded Committee on Banking, Housing, and Urban Affairs: a hearing to examine the nomination of Janet Ann Committee held a hearing to examine proposals to Sanderson, of Arizona, to be Ambassador to the Re- reform the National Flood Insurance Program, focus- public of Haiti, after the nominee testified and an- ing on the causes of the financial disarray of the Pro- swered questions in her own behalf. gram, receiving testimony from David M. Walker, NOMINATIONS Comptroller General of the United States, Govern- Committee on Foreign Relations: Committee concluded ment Accountability Office; David I. Maurstad, Act- a hearing to examine the nominations of Patricia ing Director and Federal Insurance Administrator, Newton Moller, of Arkansas, to be Ambassador to Mitigation Division, Federal Emergency Manage- the Republic of Burundi, Robert Weisberg, of Mary- ment Agency, Emergency Preparedness and Response land, to be Ambassador to the Republic of Congo, Directorate, Department of Homeland Security; and Bernadette Mary Allen, of Maryland, to be Ambas- Donald Marron, Acting Director, Congressional sador to the Republic of Niger, and Steven Alan Budget Office. Browning, of Texas, to be Ambassador to the Re- Hearing recessed subject to the call. public of Uganda, after the nominees testified and answered questions in their own behalf. NOMINATIONS Committee on Foreign Relations: Committee concluded LOBBYING REFORM a hearing to examine the nominations of Mark D. Committee on Homeland Security and Governmental Af- Wallace, of Florida, to be U.S. Representative to the fairs: Committee concluded a hearing to examine United Nations for U.N. Management and Reform, lobbying reform proposals and issues, focusing on S. with the rank of Ambassador, and to be Alternate 2128, to provide greater transparency with respect to U.S. Representative to the Sessions of the General lobbying activities, and S. 2180, to provide more Assembly of the United Nations, during his tenure rigorous requirements with respect to disclosure and of service as U.S. Representative to the United Na- enforcement of ethics and lobbying laws and regula- tions for U.N. Management and Reform, and Jackie tions, after receiving testimony from Senators Wolcott Sanders, of Virginia, to be Alternate U.S. McCain, Santorum, Coleman, Durbin, and Feingold; Representative for Special Political Affairs in the Dick Clark, Aspen Institute Congressional Program, United Nations, with the rank of Ambassador, and John Engler, National Association of Manufacturers, to be an Alternate U.S. Representative to the Ses- and William Samuel, AFL–CIO, Fred Wertheimer, sions of the General Assembly of the United Nations Democracy 21, all of Washington. D.C.; and Paul A. during her tenure of service as Alternate U.S. Rep- Miller, American League of Lobbyists, Alexandria, resentative for Special Political Affairs in the United Virginia. h House of Representatives Chamber Action COMMITTEE MEETINGS FOR THURSDAY, The House was not in session today. The House JANUARY 26, 2006 is scheduled to meet at 12 noon on Tuesday, January (Committee meetings are open unless otherwise indicated) 31, 2006. Senate Select Committee on Intelligence: to hold a closed briefing Committee Meetings on intelligence matters, 2:30 p.m., SH–219. No committee meetings were held. House No committee meetings are scheduled.

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Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 9:45 a.m., Thursday, January 26 12 noon, Tuesday, January 31

Senate Chamber House Chamber Program for Thursday: Senate will continue consider- Program for Tuesday: To be announced. ation of the nomination of Samuel A. Alito, Jr., of New Jersey, to be an Associate Justice of the Supreme Court of the United States.

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