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, THURSDAY, JANUARY 26, 2006 No. 6 House of Representatives The House was not in session today. Its next meeting will be held on Tuesday, January 31, 2006, at noon. Senate THURSDAY, JANUARY 26, 2006

The Senate met at 9:45 a.m. and was RESERVATION OF LEADER TIME tinue alternating 1-hour blocks of time called to order by the President pro The PRESIDENT pro tempore. Under between the two sides throughout the tempore (Mr. STEVENS). the previous order, the leadership time day. Members should plan their sched- is reserved. ules accordingly to use the allocated PRAYER time to make their statements. We will f The Chaplain, Dr. Barry C. Black, of- continue to work toward a final time fered the following prayer: EXECUTIVE SESSION for a vote on the nomination. Let us pray. Mr. President, I suggest the absence of a quorum. Eternal Lord God, the fountain of NOMINATION OF SAMUEL A. The PRESIDENT pro tempore. The truth and wisdom, thank You for the ALITO, JR., TO BE AN ASSO- clerk will call the roll. yearning You have placed in our hearts CIATE JUSTICE OF THE SU- The legislative clerk proceeded to for You. PREME COURT OF THE UNITED call the roll. Today, equip our Senators for the STATES tasks before them. Help them strive to Mr. LEAHY. Mr. President, I ask make the rough places of our world The PRESIDENT pro tempore. Under unanimous consent that the order for smooth and the crooked places the previous order, the Senate will pro- the quorum call be rescinded. straight. As they debate the Judge ceed to executive session and resume The PRESIDENT pro tempore. With- Samuel Alito nomination to the Su- consideration of Calendar No. 486, out objection, it is so ordered. preme Court, give them the wisdom to which the clerk will report. The Chair will state that the time be guided by conscience and not con- The legislative clerk read the nomi- from 11 a.m. to 12 p.m. shall be under tention. Empower them to disagree nation of Samuel A. Alito, Jr., of New the control of the majority leader or without being disagreeable. Guide their Jersey, to be an Associate Justice of his designee, with each hour rotating hands, hearts, and minds to those un- the Supreme Court of the United back and forth in the same manner dertakings that please You. May they States. after that time. never swerve from the straight and The PRESIDENT pro tempore. Under The Senator is recognized. narrow path of Your unfolding provi- the previous order, the time from 10 Mr. LEAHY. I thank the distin- dence. a.m. to 11 a.m. shall be under the con- guished President pro tempore, my Help us all to live for Your honor so trol of the Democratic leader or his friend of over 30 years. The debate has that even our enemies will be at peace designee. worked out well by going back and with us. Bless our military men and RECOGNITION OF THE ACTING MAJORITY LEADER forth, showing the usual comity here in women who sacrifice each day to keep The PRESIDENT pro tempore. The the Senate. us free. We pray in Your righteous acting majority leader is recognized. I began my discussion of Judge Name. Amen. SCHEDULE Alito’s nomination for a lifetime ap- f Mr. DEMINT. Mr. President, today, pointment to the Nation’s highest we resume consideration of the nomi- Court with the same issue I began my PLEDGE OF ALLEGIANCE nation of Judge Alito to be an Asso- questions to Judge Alito and, before The PRESIDENT pro tempore led the ciate Justice of the Supreme Court. that, to now Chief Justice Roberts: Pledge of Allegiance, as follows: The order from yesterday allows the That is the issue of checks and bal- I pledge allegiance to the Flag of the Democrat side to begin debate this ances on Government power. Obvi- United States of America, and to the Repub- morning at 10 o’clock and speak for up ously, the answers given by Chief Jus- lic for which it stands, one nation under God, to 1 hour. Then the majority will have tice Roberts I found satisfactory. I indivisible, with liberty and justice for all. the hour from 11 to 12, and we will con- voted for him. The answers by Judge

∑ 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 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00001 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.000 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S146 CONGRESSIONAL RECORD — SENATE January 26, 2006 Alito, as I will explain further, I did told him Senator SPECTER had pre- I ask unanimous consent that letters not find satisfactory. viously insisted on an answer from Jus- from civil rights organizations in oppo- It is important because we are at a tice Rehnquist and that Justice sition to Judge Alito’s nomination be pivotal point in our Nation’s history. Rehnquist had answered that it would printed in the RECORD. This is a time of unprecedented govern- not be constitutional to strip the Court There being no objection, the mate- mental intrusion into the lives of ordi- of its jurisdiction, its vital function to rial was ordered to be printed in the nary Americans. The President has at- protect fundamental rights. Unlike the RECORD, as follows: tempted to justify secret warrantless late Chief Justice, Judge Alito re- WASHINGTON BUREAU, NATIONAL AS- wiretapping of Americans, the evasion sponded as though it were merely an SOCIATION FOR THE ADVANCEMENT of legal bans against torture, and the academic question. He said that there OF COLORED PEOPLE, detention of American citizens without are scholars on both sides. He refused Washington, January 9, 2006. due process of law. The Bush adminis- to state his view. This is a basic and Re NAACP urges thorough review of Judge tration is making extraordinary claims fundamental issue for anybody aspiring Samuel Alito’s troubling record on civil of essentially unlimited power. There to be a member of the Supreme Court. rights & civil liberties during Judiciary are troubling signs that this nomina- Justice Rehnquist got it right. For Committee hearing tion is part of that effort by the Presi- that matter, Judge Bork got it right. MEMBERS, dent and Vice President to uphold Judge Alito got it wrong. U.S. Senate, Committee on the Judiciary, Wash- When he failed to respond to my ington, DC. Presidential claims of unchecked DEAR SENATOR: As you are aware from ear- question, Senator SPECTER revisited it, power and to upset the careful balance lier correspondence, the NAACP is opposed of our system of government, a system but Judge Alito still failed the to the nomination of Judge Samuel Alito to of government that was so carefully straightforward test. I asked the same the United States Supreme Court based on crafted by the Framers in our national question with respect to the fourth our thorough review of his dismal record on charter, the Constitution. I have said I amendment, the fifth amendment, and upholding civil rights and civil liberties pro- do not believe that Judge Alito would the sixth amendment. Again, there was tections. As such, we would urge you, as a be that kind of a careful check and bal- no answer. These are the constitu- member of the Senate Judiciary Committee, tional amendments that guarantee our to use your position and your Constitu- ance against Presidential over- tionally-mandated responsibility to thor- reaching. Because of that, I said I privacy rights, our protection against unreasonable searches and seizures, our oughly review Judge Alito’s record on civil would not support his nomination. rights and civil liberties and to try to deter- I don’t take this position lightly. right to due process, our right against mine the extent to which Judge Alito is like- There are nine members of the Su- self-incrimination, our protection ly to preserve the civil rights of Americans if preme Court, seven of them nominated against Government takings, and our he is confirmed to our Nation’s highest by Republican Presidents. I have voted right to public trial and to counsel. court. for eight of those nine, but I will not These are basic American rights that The Supreme Court is, in many cases, the for this one. I feel that the judge’s help to define us as a free people. They last opportunity for many Americans to as- control the intrusiveness of Govern- sert their rights and ensure the protection of record, his missed opportunities during their liberties. Many of the civil rights gains the hearings to answer concerns about ment power. Judge Alito has shown through his that have been made over the past 50 years his record, leaves me to wonder wheth- answers that he does not appreciate are a result of Supreme Court rulings. Thus, er he appreciates the role of the Su- the NAACP feels that it is of the utmost im- the constitutional role of the Supreme preme Court as a protector of Ameri- portance that any nominee to the Court is Court as the protector of America’s cans’ fundamental rights and liberties. clear about his or her intentions to protect fundamental rights. In fact, in our sys- It is a test he failed. The Supreme the civil rights gains that have been made tem of checks and balances, the Su- Court has to be a source of justice. It over the past 5 decades and have always been preme Court has to be the ultimate de- promised to us by the US Constitution. has to be an institution where the Bill fender of Americans’ constitutional Of specific concern to us from Judge of Rights and human dignity are hon- rights. Judge Alito’s refusal to ac- Alito’s past history is: ored. It must be an institution dedi- knowledge that in his answers is more In a 1985 job application for a position with cated to the mission embodied in the than deeply troubling; it is stunning. It the Reagan Administration, Judge Alito dis- words etched in Vermont marble above agreed in writing with the Warren Court’s is stunning that anybody up for a life- reapportionment decisions now known as the entrance to the Court where it says time appointment to the Supreme ‘‘equal justice under the law.’’ It must ‘‘one man, one vote’’, which are among the Court of the United States would not Court’s most widely accepted decisions on be an institution which carries on the answer such basic questions. Suppose if civil rights and equal representation. The spirit enshrined in our Constitution, by legislative act we could remove the ‘‘one man, one vote’’ theory is also one of the refined following the Civil War, and re- constitutional right to freedom of reli- basic tenets of Voting Rights that the alized further over the course of land- gion or free speech how quickly we NAACP has fought for; mark decisions in Brown v. Board of could remove our freedoms as Ameri- In the 1993 case Grant v. Shalala Judge Education and Baker v. Carr. Judge Alito ruled against a class action alleging ra- cans. Again, Justice Rehnquist and cial and other bias by an Administrative Alito’s record and testimony dem- Judge Bork had it right. Judge Alito onstrate that he does not understand Law Judge when determining Social Secu- had it wrong. rity benefits, arguing that the Court of Ap- the vital role of the courts in imple- I even gave him a concrete example. peals lacked the authority to conduct a trial menting the constitutional guarantees I asked whether in the early 1950s, Con- and make independent findings on actions of equal protection and equal dignity gress could have stripped the courts, taken by an Administrative Law Judge for for all Americans. including the Supreme Court, of juris- the Social Security Agency. In a strongly A stark example of his failing the diction to hear cases involving racial worded dissent to the Alito ruling, Judge test took place during his confirmation segregation in schools. This historical Leon Higginbotham said that the decisions is hearing when I asked him a question hypothetical raised the question ‘‘. . . effectively have courts take a back seat to bureaucratic agencies in protecting Senator SPECTER had asked then Jus- whether the Supreme Court could have tice Rehnquist at his hearing to be- constitutional liberties. This . . . is a radical been prevented from deciding Brown v. and unwise redefinition of the relationship come the Chief Justice. I know; I was Board of Education and enforcing the between federal courts and federal agencies.’’ at the hearing. The question was a equal protection clause of the Con- In the 1997 case Bray v. Marriot Hotels, basic one: whether the Supreme Court stitution and calling for an end to un- Judge Alito strongly dissented from a Third can be stripped of jurisdiction to pro- constitutional racial segregation. His Circuit ruling and made it clear that he sup- tect fundamental constitutional rights. answer was no better. He was clearly ports impossibly high barriers for victims of I asked Judge Alito whether the Su- stumped. discrimination to have their cases heard; preme Court could be stripped of juris- No Senator who truly cares about In a separate 1997 case, Riley v. Taylor, diction to hear first amendment cases Judge Alito held that a prosecutor was not civil rights, equal rights, freedom of re- motivated by race in striking all African involving freedom of the press or free- ligion and speech and the press can Americans from the jury of a death-penalty dom of religion or freedom of speech. have any confidence that Judge Alito case involving an African American defend- The First Amendment is probably the understands the critical role of the Su- ant. When the defendant produced statistical greatest part of our Bill of Rights. I preme Court in protecting those rights. evidence showing the prosecution repeatedly

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00002 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.002 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S147 striking African Americans from juries, Therefore, we urge the Senate Judiciary at the Justice Department reveals that he Judge Alito contended that this was irrele- Committee to reject the nomination of was directly involved in the Reagan Admin- vant and likened it to a study showing that Judge Alito to be a Supreme Court Justice istration’s frontal attacks on affirmative ac- a disproportionate number of recent Presi- and look forward to working with you to en- tion, arguing against affirmative action in dents have been left-handed. sure the nomination and confirmation of three significant cases before the Court. In In a 2004 case, Doe v. Grady, Judge Alito judges who will uphold fundamental civil his 15 years on the bench, he has ruled dissented from a ruling against police offi- rights protections. against African Americans on this issue. cers who had strip-searched a woman and her Respectfully, Judge Alito’s record should be extremely 10-year-old daughter while executing a MARC H. MORIAL, troubling to minority workers, women and search warrant authorizing the search of her President and CEO. others who depend on equal opportunity pro- husband and their home. In short, during the course of the NAACP’s tections in the workplace. Although he has NAACP LEGAL DEFENSE FUND OPPOSES ALITO heard dozens of cases, Judge Alito has al- investigation into Judge Alito’s past we be- NOMINATION came convinced that he is unfit to sit on the most never ruled in favor of an African- REPORT DETAILS HOSTILITY TO CIVIL RIGHTS United States Supreme Court because race American plaintiff in an employment dis- AND WARNS OF TIPPED BALANCE ON HIGH COURT and gender are still a real problem in the crimination case; he has never authored even United States; a fact he appears to neither On December 15, 2005, the NAACP Legal one opinion favoring an African-American recognize nor appreciate. Defense and Educational Fund, Inc. (LDF) plaintiff on the merits in such a case. Accordingly, as I said earlier, I hope you announced opposition to the nomination of Judge Alito’s criticism of the Warren will ask tough questions, and demand thor- Samuel Alito, Jr. to the U.S. Supreme Court, Court’s reapportionment decisions is ex- ough answers, during the hearings that begin citing his hostility to strong enforcement of tremely troubling. These cases ‘‘set into mo- today on Judge Alito to try to determine civil rights laws. LDF warned that confirma- tion a process that led to the dismantling of even further the extent to which he is, or is tion of Judge Alito would threaten to shift a political system infected both by prejudice not, committed to upholding and protecting significantly the Supreme Court’s jurispru- and other forms of patent electoral manipu- the civil rights and civil liberties of all dence relating to affirmative action, voting lation.’’ In his only opportunity on the bench Americans. On behalf of the NAACP, I would rights, employment and criminal justice to interpret the Voting Rights Act, Alito also like to further express our strong oppo- issues. voted to uphold an at-large system of elect- sition to the nomination and our hope that At a press conference in Washington, D.C., ing members to a Delaware school district, you urge your Senate colleagues to oppose LDF released a 10-page report detailing what perpetuating an electoral system that di- and defeat Judge Samuel Alito’s nomination. it called an ‘‘extreme’’ judicial approach by luted the voting strength of racial minori- Please contact me, or my Bureau Counsel, Judge Alito that would demonstrably impact ties. Crispian Kirk, at (202) 463–2940 soon to let me important future decisions of the High In the criminal justice area, Judge Alito know your position on this matter, and to Court. The LDF report cites cases in which has repeatedly parted ways with his col- let me know what I can do to work with you Alito has attacked congressional legislative leagues and failed to heed Supreme Court to ensure that President Bush nominates, authority in a manner that his colleagues precedent in important cases regarding race and the Senate confirms, moderate, not ex- viewed as extreme. As a Justice Department discrimination in jury selection, the right to tremist, judicial candidates to the federal lawyer, he argued to uphold police use of effective assistance of counsel, and search bench. deadly force and undermine the rights of and seizure issues. Sincerely, criminal defendants. In the area of affirma- HILARY O. SHELTON, tive action, LDF highlighted ‘‘troubling sig- LAWYERS’ COMMITTEE FOR CIVIL Director. nals’’ that Alito would tip the delicate Court balance to unravel policies ‘‘at the epicenter RIGHTS UNDER LAW, WASHINGTON, DC, JANUARY 5, 2006. NATIONAL URBAN LEAGUE, of the modern struggle for racial equality.’’ January 10, 2006. ‘‘We can predict with substantial certainty Hon. ARLEN SPECTER, Chairman, Committee on the Judiciary, U.S. SENATE COMMITTEE ON THE JUDICIARY, that Judge Alito will very likely vote in a Dirksen Senate Office Building, manner that, given the current composition Senate, Washington, DC. Washington, DC. of the Court, will cause a substantial shift in Hon. PATRICK J. LEAHY, DEAR SENATORS: As you know, the Na- the Court’s civil rights jurisprudence with Ranking Member, Committee on the Judiciary, tional Urban League, Inc. (‘‘Urban League’’) devastating effects,’’ the LDF report cau- U.S. Senate, Washington, DC. is the oldest community-based civil rights tioned. DEAR CHAIRMAN SPECTER AND RANKING organization in the country. Through our 102 Judge Alito is scheduled to appear before MEMBER LEAHY: As the Co-Chairs of the Law- professionally-staffed affiliates, located in 34 the Senate Judiciary Committee in early yers’ Committee for Civil Rights Under Law, states and in the District of Columbia, the January for confirmation hearings. we submit the enclosed ‘‘Statement of Board Urban League works to ensure, in a non-par- LDF Director-Counsel and President Theo- Members Opposing the Nomination of Judge tisan way, economic and social parity and dore M. Shaw stressed that the organization Samuel A. Alito as an Associate Justice of full civil rights for African-Americans and does not relish opposing a nomination to the the Supreme Court of the United States’’ on other people of color. Supreme Court and does so only when the behalf of the 114 individual members of the Nominations to the United States Supreme nominee’s record is contrary to the goals of Board of Directors and Trustees who sub- Court are of particular concern to the Urban equal justice that are the hallmark of LDF’s scribe to the Statement. League Movement because of the high work. These members of our Board oppose Judge Court’s tremendous power and impact on the With the announcement of Justice Sandra Alito because the record demonstrates that issues relevant to our mission of securing Day O’Connor’s retirement last summer, his views are in direct conflict with the core civil rights and economic empowerment for LDF called upon President Bush to nominate civil rights principles to which the Lawyers’ African Americans. Since the President a successor who is not ideologically rigid and Committee is dedicated, and that as a mem- nominated Judge Samuel Alito, Jr. to be an predictable, but who is fair and open-minded, ber of the Supreme Court, Judge Alito would Associate Justice of the United States Su- and committed to protecting advances in cast votes and write opinions that would set preme Court, the National Urban League has civil rights. LDF emphasized that Justice back the cause of civil rights in our country carefully and exhaustively reviewed his judi- O’Connor’s successor should not be a mis- and impede our progress toward the goal of cial record, judicial philosophy, and profes- sion-driven ideologue but, even if a conserv- equal justice for all. It is worth noting that sional qualifications. Our study found that ative, should maintain the balance on the in the Lawyers’ Committee’s 42-year history, Judge Alito has a long and unambiguous his- Court with respect to civil rights issues. its Directors and Trustees have opposed a tory of opposition to critical and established To analyze Alito’s record, LDF reviewed Supreme Court nominee on only two pre- voting rights protections, civil rights rem- published and unpublished opinions in cases vious occasions. edies and social justice guarantees. Our ex- decided by Judge Alito as well as documents amination also established that Judge Alito released by the White House and the Na- We also enclose a Final Report that ana- frequently injects this philosophy into his tional Archives. Appointed by President lyzes Judge Alito’s legal philosophy per- judicial decision-making, often in direct con- George H.W. Bush to the U.S. Court of Ap- taining to civil rights and constitutional in- travention of well-settled law. A copy of our peals for the Third Circuit in 1990, Alito terpretation. This in-depth Report serves as report is attached. spent his entire legal career at the Depart- the basis for the conclusions contained in Based upon this review, it is our conclu- ment of Justice. the Statement and provides extensive anal- sion that Judge Alito’s stated opposition to LDF’s report also reveals: ysis of Judge Alito’s background. If Judge reasonable and established civil rights rem- Unquestionably, Justice O’Connor cast piv- Alito’s testimony during confirmation hear- edies and voting rights protections, and his otal votes in civil rights cases coming before ings or other evidence justifies a change in consistent record of injecting these views the Supreme Court. While Justice O’Connor the conclusions we have drawn, we will so in- into his decision-making to the degree that did rule against civil rights litigants, at form you. it undermines basic civil rights protections least her vote on important issues such as af- We hope the Statement and Report are of make him unsuitable for a seat on our na- firmative action was ‘‘always in play.’’ In assistance to you and your staff. For the rea- tion’s highest court. contrast, a review of Samuel Alito’s tenure sons noted in them, we strongly urge the Ju-

VerDate Aug 31 2005 03:02 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00003 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.001 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S148 CONGRESSIONAL RECORD — SENATE January 26, 2006 diciary Committee to vote not to confirm extreme views of the Justice Department to adequately answer why he would this nominee. and a coalition of corporations, members of seek to highlight a disagreement with Respectfully, Congress and civil rights organizations suc- the landmark equal protection cases by cessfully defeated Meese’s campaign against MARJORIE PRESS which the Supreme Court made elec- LINDBLOM, affirmative action. Co-Chair. There is nothing subsequent to Mr. Alito’s tions fairer for all Americans and es- ROBERT E. HARRINGTON, tenure in the Reagan Administration or his tablished the principle of ‘‘one person, Co-Chair. testimony before the Senate Judiciary Com- one vote.’’ mittee to suggest persuasively that he has moderated his views on equal opportunity The Warren Court’s reapportionment AMERICAN ASSOCIATION law enforcement. In civil rights cases he has decisions were among the central FOR AFFIRMATIVE ACTION, often argued for higher barriers that victims Washington, DC, January 11, 2006. achievements of the civil rights era. of employment discrimination would have to Re Nomination of Judge Samuel A. Alito, They ensured that voting districts overcome to secure remedies for such dis- which had been grossly mal-appor- Jr., as Associate Justice of the Supreme crimination. For example, in Bray v. Mar- Court of the United States riott Hotels, Judge Alito’s colleagues said tioned, often to the detriment of mi- Hon. ARLEN SPECTER, Title VII of the Civil Rights Act of 1964 nority voters, would be fairly revised Chair, ‘‘would be eviscerated’’ if Judge Alito’s ap- so that everyone’s vote was weighed Hon. PATRICK J. LEAHY, proach were followed. In Nathanson v. Med- equally. It is clear from looking at the Ranking Member, Senate Committee on the Ju- ical College of Pennsylvania, Judge Alito Republicans’ partisan redistricting in diciary, Dirksen Senate Office Building, dissented in a disability rights case where Texas that these cases did not solve all Washington, DC. the majority said: ‘‘Few if any Rehabilita- tion Act cases would survive’’ if Judge the problems. However, reapportion- DEAR CHAIRMAN SPECTER AND SENATOR ment cases like Baker v. Carr, 1962, and LEAHY: The American Association for Af- Alito’s view were the law.’’ And in Sheridan firmative Action (AAAA), an association of v. DuPont, he was the only one of 11 judges Reynolds v. Sims, 1964, are landmarks equal employment opportunity (EEO), diver- on the court who would apply a higher stand- because they established that courts sity and affirmative action professionals ard of proof in a sex discrimination case. have a responsibility to make certain According to a report of the NAACP Legal founded in 1974, respectfully urges you to op- Defense and Educational Fund, Inc., Judge that voting districts meet constitu- pose the nomination of Judge Samuel Alito, Alito has almost never ruled for an African- tional standards. nominated to serve as Associate Justice of American plaintiff in employment discrimi- the U.S. Supreme Court. It was Justice William Brennan of AAAA has reached this conclusion based nation cases and has never written a major- New Jersey who wrote the Court’s on Judge Alito’s very troubling record on ity opinion for the Third Circuit in favor of opinion in Baker. Two years later, in equal employment opportunity and affirma- an African-American plaintiff on the merits of a claim of race discrimination in employ- Reynolds, the Court established the tive action. In his 1985 application to be the ‘‘one person, one vote’’ standard be- Reagan Administration’s Deputy Assistant ment. In each majority opinion authored by Attorney General in the Office of Legal Judge Alito and addressing such a claim, he cause, as stated by Chief Justice War- Counsel, Samuel Alito expressed his support has ruled against the African-American ren in his opinion in that case: plaintiff. of the ‘‘same philosophical views’’ that he This is not the time for the Judiciary, a As long as ours is a representative form of believed were central to the Administration. longstanding refuge for victims of discrimi- government, and our legislatures are those In this application, Alito highlighted his nation, to reverse fifty years of progress. The instruments of government elected directly work as Assistant Solicitor General on af- record emerging suggests that Judge Samuel by and directly representative of the people, firmative action and reportedly wrote that Alito is not prepared to interpret the laws on the right to elect legislators in a free and he was ‘‘particularly proud’’ of his ‘‘con- behalf of all Americans. unimpaired fashion is a bedrock of our polit- tributions in recent cases in which the gov- Sincerely, ical system. ernment has argued in the Supreme Court SHIRLEY J. WILCHER, that racial and ethnic quotas should not be Interim Executive Director. At his hearing, Judge Alito was in re- allowed....’’ To use Judge Alito’s ‘‘Hank treat and had to concede that the con- Aaron’’ analogy, affirmative action requires Mr. LEAHY. Judge Alito missed op- portunities during the hearings on a cept of one person, one vote is well-set- not moving the fence in but opening the tled and should not be reexamined. It gate. After that, it is up to the player to number of issues. I am left with a deep demonstrate his or her abilities. Whoever se- and abiding concern about Judge was equally well-settled in 1985 when lected Hank Aaron, Secretary Rice or Jus- Alito’s understanding of the role of the he made the statement in his job appli- tice O’Connor understood that the essence of courts and their responsibility to pro- cation. More importantly, Judge affirmative action is opportunity, not favor- tect the constitutional rights of indi- Alito’s testimony calls into question itism or quotas. viduals, especially the less powerful whether he truly understands that the Judge Alito’s application described the ef- courts have a responsibility in our con- forts of the Reagan Justice Department to and especially where the political sys- restrict affirmative action and court-award- tem has failed to do so. stitutional system to intervene to en- ed remedies for discrimination as ‘‘quota’’ Despite Judge Alito’s attempts to re- sure that constitutional guarantees of litigation. In one such case, Alito signed a treat from several of the more out- equal access to the political system are brief arguing for restricting affirmative ac- rageous statements in his 1985 job ap- met. This is important in situations tion remedies, even in cases where discrimi- plication for a political position in where the political system is corrupt nation was intentional, egregious, and long- Edwin Meese’s Justice Department, his or where the political branches lack standing. In Local 28 of the Sheet Metal the will to fight against entrenched Workers’ International Ass’n v. EEOC, the testimony at the hearing has done lit- Solicitor General’s brief advanced the ex- tle to dispel my concerns. The con- power or to reform themselves. traordinary theory that relief in Title VII sequences for all Americans of Judge In response to a question from Sen- cases could be granted only to ‘‘identifiable Alito putting the beliefs he expressed ator KOHL, Judge Alito sought to re- victims of discrimination,’’ contradicting an in that job application into practice on treat from the unqualified disagree- earlier view of the EEOC itself. The Supreme the Supreme Court are too great. ment with the reapportionment cases Court rejected this argument. In his job application, Samuel Alito expressed in his 1985 application. He In Local Number 93, International Associa- wrote, as a 35-year-old, practicing law- tion of Firefighters, AFL–CIO v. City of told the Committee that his disagree- Cleveland, Alito signed on to an amicus brief yer, that: ment was based only on certain details seeking to reverse a consent decree that in- In college, I developed a deep interest in of later Warren Court decisions like cluded numerical goals for the promotion of constitutional law, motivated in large part by disagreement with Warren Court deci- the 1969 case, Kirkpatrick v. Preisler. black firemen. By a 6–3 vote, the Supreme Not only is this narrow objection to Court again rejected the Solicitor General’s sions, particularly in the area[] of . . . re- argument and upheld the affirmative action apportionment. certain Warren Court decisions not a plan. This was a startling statement to credible explanation for why he made In the months before Alito applied for a job make in 1985, just two decades ago. He his sweeping assertions of disagree- with Attorney General Edwin Meese, Meese was 35 years old and had been prac- ment in 1985, but Judge Alito also con- waged a fierce campaign to have President ticing law for almost a decade when he tradicted it later in his testimony Reagan abolish Executive Order 11246, signed wrote that statement about his dis- when he suggested that his disagree- by President Lyndon Johnson in 1965. The Order requires that federal contractors not agreement with Warren Court decisions ment with the Warren Court’s reappor- discriminate in employment and that they on reapportionment. Even after being tionment decisions was based on Alex- use affirmative action. Ultimately, two- asked about this statement several ander Bickel’s ideas about judicial self- thirds of the Reagan cabinet repudiated the times at the hearing, Judge Alito failed restraint. Professor Bickel was not

VerDate Aug 31 2005 03:02 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00004 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.004 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S149 concerned merely with later applica- which Samuel Alito apparently agreed, this is Judge Alito’s distressing record tions of one person, one vote. Rather, and not involved itself in reapportion- in cases in which individuals allege dis- his theory was critical of the courts ment. He testified: crimination based on race, gender, or having any role at all in helping to The difference is then, prior to these deci- disability. Judge Alito has consistently guarantee that access to the political sions, and even prior to Brown v. Board of found ways to keep the ‘‘little guy’’ system is fair and equal. Education, and prior to Gomillion v. Light- from having a day in court. For exam- In fact, one of the justices whom foot and Browder v. Gayle, the case that de- ple, he has held individuals trying to Judge Alito described as among his fa- segregated the buses, we had very few Afri- prove discrimination to an excessively vorites, Justice Harlan, applied can Americans and other minorities reg- high standard of proof, rendering their Bickel’s theories in dissenting from istered. We had little or no African Ameri- cases almost un-winnable. From the cans in public office. For example, in my every landmark Warren Court reappor- state, in 1957 we had none. Now my State has bench, he has favored the government tionment case establishing one person, approximately the same number of persons and big companies accused of discrimi- one vote, starting with Baker v. Carr. in our State legislature. It mirrors the popu- nation. He seems to view these cases In Justice Harlan’s dissenting opinion lation. We now have thousands of African not as examples of regular Americans in Reynolds v. Sims, as in all of Justice Americans and other minorities who are struggling for equal treatment but, in- Harlan’s reapportionment dissents, he holding public office, and an additional thou- stead, as technical legal exercises. argued that there is no constitutional sand that those public office holders have ap- Judge Alito’s supporters—and many basis for one person, one vote and that pointed to elected office. on the other side of the aisle were lined courts should restrain themselves from Judge Alito did not adequately ex- up to support him well before the hear- ‘‘usurping’’ the state legislatures’ self- plain his disagreement with the Warren ings—have cherry picked individual serving apportionment decisions. In his Court reapportionment decisions. He cases to try to show that Judge Alito dissent in Reynolds, Justice Harlan refused to say that he changed his was fair to average Americans. Judge wrote: ‘‘It is difficult to imagine a views. He did not repeat what he had Alito told us to look at his whole more intolerable and inappropriate in- suggested in some private meetings— record and we did. In fact, a study of terference by the judiciary with the that he was merely saying what he Judge Alito’s decisions by Knight independent legislatures of the thought people in the Reagan White Ridder newspapers found that Judge States,’’ and ‘‘[w]hat is done today House wanted to hear and that it was Alito was consistently skeptical of dis- deepens my conviction that judicial just a job application. Candidly, his crimination plaintiffs, generally set- entry into this realm is profoundly ill- testimony on this critical point makes ting high standards of proof and find- advised and constitutionally impermis- no sense. This is too fundamental a ing that the plaintiffs before him did sible.’’ This dissent, described as one of matter to be left without a solid, cred- not meet those standards. The study Judge Alito’s favorites, hardly sounds ible explanation. The equal protection found that he was similarly dismissive like a disagreement only with certain rights and voting rights of all Ameri- of criminal defendants alleging dis- aspects of later reapportionment deci- cans are the fulcrum for realizing the crimination by the government and of sions. promises of our democratic republic. immigrants fighting deportation. The effects of the Court’s decisions to Judge Alito’s sweeping disagreement Noted law professors Cass Sunstein and intervene were dramatic. Were the Su- with the Warren Court’s reapportion- Goodwin Liu studied the cases where preme Court to have followed the dis- ment decisions is not the only part of Judge Alito dissented from his col- sents of Justice Harlan or the theories his 1985 job application which has leagues and reached the same conclu- of Alexander Bickel that Judge Alito caused me to doubt his understanding sion. embraced in 1985, the massive dispari- of the responsibility for the courts to In several cases, the Third Circuit ties in the size of voting districts intervene where the political process is criticized Judge Alito for taking posi- would not have been corrected in the broken down, corrupt or entrenched. tions which would make it almost im- 1960s. Nor would the underrepresenta- Judge Alito also stated in that applica- possible for people to prove discrimina- tion of voters from urban areas, minor- tion that he believes in ‘‘the suprem- tion. In Bray v. Marriott Hotels, Judge ity voters, have been corrected. Had acy of the elected branches of govern- Alito would have denied an African- the Court not acted we might still have ment.’’ In the hearing, Judge Alito American worker the chance to show poll taxes and other barriers to the tried to retreat from this statement, that her employers denied her a pro- ability of minorities to vote. describing it as ‘‘inapt’’ and ‘‘very mis- motion based on race. The majority At the hearing we heard testimony leading and incorrect.’’ However, he re- criticized Judge Alito’s dissent saying from pioneering civil rights attorney fused to disavow it, telling Senator that a key discrimination statute Fred Gray, who spent a lifetime fight- KENNEDY: ‘‘I haven’t changed my ‘‘would be eviscerated if our analysis ing for those who were denied the mind.’’ were to halt where the dissent sug- rights to equal protection and equal The Supreme Court’s decisions to in- gests.’’ dignity under the law guaranteed by tervene in the reapportionment cases The case of Pirolli v World Flavors, our Constitution. After he graduated in the 1960s had a tremendous effect on Inc., is a particularly poignant example from law school, Mr. Gray immediately the ability of millions of Americans to of the kind of case that gives me great went to work defending Rosa Parks participate in the political process. Yet concern about whether Judge Alito and Dr. Martin Luther King, Jr., in the I am concerned that his 1985 written would uphold the rights of ordinary Montgomery bus boycott. He has a statement reveals that he will be too Americans seeking equal treatment. In real-life appreciation for the role of deferential to the President as ‘‘su- that case, Kenneth Pirolli, a mentally courts as providing a check to protect preme’’ even when needed to be a check retarded employee, brought a claim for individual rights and liberties. In the on the Government. hostile work environment based on sex late 1950s, after the Alabama legisla- The elected branches have no claim and disability, alleging a pattern of ture changed the city limits of to being legitimate, let alone ‘‘su- sexual abuse and harassment that can Tuskegee, excluding all but three or preme,’’ if they are controlled by en- only be described as disgusting. Judge four African Americans who were reg- trenched political corruption. After lis- Alito dissented from the Third Cir- istered to vote in the city, Mr. Gray tening to several days of his testimony, cuit’s decision that Mr. Pirolli’s case brought before the Supreme Court the I am left with serious questions and should go to a jury, not based on the case of Gomillion v. Lightfoot. This concerns about Judge Alito’s apprecia- merits of the claim, but essentially be- unanimous decision securing the right tion for this critical role of the courts. cause he thought Mr. Pirolli’s lawyer’s to vote for African Americans laid the These concerns are heightened by his legal brief was poorly drafted. Senator foundation for Baker v. Carr and the apparent adherence to the so-called DURBIN asked Judge Alito about this cases establishing one person, one vote. doctrine of the ‘‘Unitary Executive.’’ matter and gave him every opportunity I asked Mr. Gray what the con- Judge Alito has failed to grasp the to explain. It remains another example sequences would have been had the importance of the courts in providing a of Judge Alito focusing on technical courts followed the lead of Justice Har- venue for all Americans to assert their details rather than on the rights of real lan and Alexander Bickel, views with rights. One of the clearest examples of people.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00005 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.003 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S150 CONGRESSIONAL RECORD — SENATE January 26, 2006 As a former prosecutor, I am sen- fighting deportation and requested asy- that Black jurors had been improperly sitive to the need for a fair process and lum, arguing that she would be sub- dismissed from the jury pool, Judge a fair jury in all criminal cases, par- jected to harsh treatment as a former Alito disagreed and denigrated the de- ticularly the most serious ones. I am opponent of Iranian regime, as some- fendant’s use of statistical evidence to troubled that in Riley v. Taylor, Judge one who did not practice a strict form show improper exclusion of Black ju- Alito dissented from an en banc deci- of Islam, and as a woman—who would rors, comparing it, as has been pre- sion in a capital case in which the have to wear a veil and live under great viously noted, to a statistical analysis Third Circuit granted a new trial be- restrictions in Iran. As his supporters of the disproportionate number of re- cause the prosecutor had improperly have noted, Judge Alito ruled in the cent left-handed U.S. Presidents. dismissed Black jurors. Judge Alito case that gender-based persecution The role of courts should be to pro- denigrated the defendant’s use of sta- could be a basis for asylum. But Judge tect and make sure there is a fair tistical evidence to show improper ex- Alito went on to rule against Ms. Fatin forum for the powerless and even the clusion of Black jurors, comparing it to anyway. So he denied her petition for unpopular. This is the reason the a statistical analysis of the dispropor- review and sent her on to be deported. courts are the one undemocratic tionate number of recent left-handed Judge Alito and Republican Senators branch. I am concerned that rather U.S. Presidents. The majority criti- seeking to bolster Judge Alito’s record than demonstrating an understanding cized Judge Alito’s inappropriate anal- cited Leveto v. Lapina as an example of of the effect of the law on the lives of ogy, writing, ‘‘To suggest any com- a case in which he protected the rights real Americans as Justice O’Connor parability to the striking of jurors of individuals against government in- has shown, Judge Alito would close the based on their race is to minimize the trusion. It is telling about Judge courthouse doors to those Americans history of discrimination against pro- Alito’s record in the area of individual most in need of the courts to protect spective Black jurors and Black de- rights protection that in a case he their rights. fendants’’. trumpeted for his protection of the In the next few years, the Supreme In response to the many cases in rights of individuals, he threw the Court will hear many challenges to po- Judge Alito’s record in which he has Levetos out of court and denied them litical entrenchment. Critical provi- ruled against victims of discrimina- any remedy. sions of the Voting Rights Act, VRA, tion, victims of government intrusion, The facts of this case are egregious. Congress’s part in guaranteeing equal and immigrants, Judge Alito’s Repub- In the course of an IRS tax fraud inves- access to voting, the fundamental ma- lican supporters searched hard to find a tigation of the Levetos, armed agents chinery of democracy, were upheld by small set of cases to show Judge Alito ‘‘rushed’’ Dr. Leveto at the veterinary the Warren Court in South Carolina v. has not always ruled against the ‘‘little hospital where he worked when he ar- Katzenbach, 1966, by an 8 to 1 vote. The guy.’’ What is notable about these ef- rived at 6:30 a.m., patted him down, VRA will need to be reauthorized be- forts is that even in the cases they and then held him in a small room for fore it expires in 2007. Subsequent have trumpeted, Judge Alito often de- over an hour, not allowing him to court challenges will be critical to fair- nied any meaningful relief to the aver- speak to anyone or make any calls. ness to minority voters. The Supreme Court will soon hear a age American. They then accompanied Dr. Leveto to challenge to Texas Republicans’ par- Several Republicans have raised the his home where they patted down Mrs. tisan mid-Census redrawing of congres- case of United States v. Kithcart. They Leveto, who was still in her nightgown, sional districts. There are questions be- incorrectly suggest that in Kithcart, and then detained and interrogated her fore the Supreme Court this term Judge Alito ruled in favor of an African for 6 hours. American in a racial profiling case. Mr. Meanwhile, other agents took Dr. about campaign finance laws. We are Kithcart was pulled over by the police Leveto back to the hospital where they seeing exposed in the news every day a because he was African American and held him in a closed room for 6 more culture of corruption through money and access that has taken root in searched and arrested. When the case hours. During this 6 hours, he was not Washington, by which one political came before Judge Alito, he sent it permitted external communications, party has sought to entrench itself as a back to the trial court to give the gov- was accompanied on bathroom breaks, permanent majority. ernment a second chance to prove that and was interrogated without Miranda The cost to Americans is high if we the stop and search of an African warnings, while other agents searched in the Senate get it wrong. I go back to American were constitutional and were the hospital. During the course of the the central question I asked at the out- not motivated by race. Judge McKee search IRS agents sent hospital em- set of Judge Alito’s hearing: Will this dissented from the remand saying, ployees home and turned away clients nominee serve to protect the funda- ‘‘just as this record fails to establish in the parking lot, informing them mental rights and liberties of all Amer- that Officer Nelson had probable cause that the hospital was closed until fur- icans? Based on Judge Alito’s record, I to arrest any Black male who happened ther notice. have no confidence that he will provide to drive by in a black sports car, it Despite acknowledging numerous a check against either an overreaching fails to establish reasonable suspicion violations, Judge Alito dismissed the President or entrenched political to justify stopping any and all such Levetos’ appeal and their case based on power, nor that he will serve to protect cars that happened to contain a Black ‘‘uncertainty’’ in the case law, and Americans’ fundamental rights and lib- male.’’ When the case came back to threw them out of court. erties. Judge Alito on appeal, Judge Alito Supporters of Judge Alito have cited I thank the distinguished Presiding upheld the search and affirmed the con- the case of Brinson v. Vaughn as an ex- Officer. viction. So while he remanded the case ample of a case in which Judge Alito I yield to the distinguished Senator back to the trial court, he then upheld sided with a victim of discrimination, from California. the search and conviction in his final reversing a conviction because Black The PRESIDING OFFICER (Ms. MUR- decision and afforded Mr. Kithcart no jurors had been improperly excluded KOWSKI). The Senator from California. relief. from the jury pool. This was an easy Mrs. FEINSTEIN. I thank the rank- Judge Alito’s supporters have point- case given the extraordinary facts in- ing member of the Judiciary Com- ed to Fatin v. INS as an example of a volved. In Brinson, the prosecutor dis- mittee and I thank the Chair. case in which Judge Alito sided with missed 13 of 14 prospective Black jurors I come to the floor to offer my rea- powerless immigrants and did not defer and had previously made a training sons for opposing Judge Alito. Let me to the Government. This is another bad video in which he urged prosecutors to begin with this: If the Supreme Court’s example because he ultimately ruled dismiss Black prospective jurors from decisions were simply mathematical against the immigrant, Parastoo the jury pool. This does not reassure computations of legal points, our job Fatin, and she was deported. me about my concern that Judge Alito would be easy and all of the Court’s de- Ms. Fatin was an Iranian woman will only give credence to claims of dis- cisions would be 9 to 0. But the legal whose family had opposed the Aya- crimination in extreme cases. Indeed, philosophy and views of each individual tollah Khomeini and who had come to in Riley v. Taylor, when an en banc Justice do play a role in decision- the United States as a student. She was majority of the Third Circuit found making on the Court. Perhaps not the

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00006 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.004 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S151 majority of the time, when the ques- were upset by the fact that he rec- So it is abundantly clear that judi- tion before the Court is not controver- ommended nominees to the circuit cial philosophy and legal views have sial; but certainly when the question is courts without taking into consider- been evaluated by senators from both controversial and divisive, legal views ation Senators’ preferences. His nomi- sides of the aisle throughout history, and philosophies do play a role. nation was defeated 24 to 33. and they are valid reasons to reject a We just had a recent example. Last The same thing happened in 1881, nominee for the U.S. Supreme Court. week the Supreme Court upheld Or- when President Rutherford Hayes nom- To now argue that evaluating one’s egon’s Death with Dignity Act by a 6- inated Stanley Mathews. He was de- judicial philosophy is setting a new to-3 decision in a case called Gonzales feated because of his close ties to rail- precedent is simply turning a blind eye v. Oregon. When then-Judge Roberts road and financial interests. to history. So while none of us can pre- came before the Senate, I and others President Warren Harding, in 1922, dict how any person will act in the fu- questioned him on his end-of-life views. nominated Pierce Butler. His nomina- ture, we do have to thoroughly con- He then replied that the Government tion was blocked from consideration on sider information available that pro- should not enter the arena. When dis- the Senate floor because of an alleged vides insights into a nominee’s judicial cussing my point that he would not procorporation bias and his previous philosophy and legal reasoning. I want want the Government telling him what advocacy for railroad issues that were to make clear. to do, he said: coming before the Court. Secondly, many of my colleagues on The basic understanding that it’s a free In 1930, President Herbert Hoover’s the Judiciary Committee have argued country and the right to be left alone is one choice of John Parker was rejected be- that the nomination of Justices Gins- of our basic rights. cause he made statements opposing the burg and Breyer have set a precedent He gave us the impression that he be- participation of African Americans in for how Supreme Court nominations lieved there was, in fact, a right to die. politics and because of his labor record should be handled, that no one ques- However, just last week, Chief Justice while chief judge of the U.S. Fourth tioned their judicial philosophy, and Roberts joined the two most conserv- Circuit Court of Appeals. that they swept through by large votes. Marshall Harlan II was nominated by ative members of the Court, Justices I want to take a moment to answer Dwight Eisenhower in 1954. The nomi- Scalia and Thomas, in an opinion that, that. nation was never reported out of com- if it had carried the day, would have al- The fact of the matter is that there mittee because some members felt he lowed the administration to invalidate was real advice and consent in the was ‘‘ultraliberal’’ and hostile to the the end-of-life initiative twice sup- nominations of Justices Ginsburg and South and dedicated to reforming the Breyer. Senator HATCH, in his book ported by Oregon voters in State elec- Constitution by ‘‘judicial fiat.’’ ‘‘Square Peg: Confessions of a Citizen tions, once when it was enacted and In 1968, President Lyndon Johnson Senator,’’ who was then the ranking once when it was reaffirmed. nominated Abe Fortas to be elevated to Secondly, history reveals that legal Chief Justice of the Supreme Court. member of the Judiciary Committee, views and philosophies have been the His nomination was defeated after the gave the following account of the Gins- rationale for the rejection of at least 12 Senate failed to invoke cloture 45 to 43. burg nomination: Presidential nominees for the Supreme One Senator is reported as saying that It was not a surprise when the President Court. Members on the other side of Fortas’ ‘‘judicial philosophy disquali- called to talk about the appointment and what he was thinking of doing. the aisle often say these legal views fies him for this high office.’’ and philosophies are not a bona fide It went on for two of President Nix- So President Clinton told Senator consideration. But what I say is these on’s nominees. Clement F. Hayns- HATCH what he was thinking of doing. have been used as the rationale for the worth, Jr. was rejected in 1969 by a Senator HATCH goes on: rejection of at least a dozen Presi- vote of 45–55. At that time, five sen- President Clinton indicated he was leaning dential nominees in history. ators issued a joint statement that ex- toward Bruce Babbitt . . . Clinton asked for Let me mention a few of them. It my reaction. pressed ‘‘doubts about his record on the I told him the confirmation would not be began with President George Wash- appellate bench,’’ and one senator op- ington when he nominated John Rut- easy. I explained to the President that al- posed the nomination on the basis of though he might prevail in the end, he ledge in 1795. Rutledge was rejected by his record on civil rights issues. should consider whether he wanted a tough, a vote of 10 to 14 because he made a The other, G. Harrold Carswell, was political battle over his first appointment to speech denouncing the Jay Treaty be- rejected by a vote of 45–51, in part the Court. I asked whether he had considered tween the United States and Great based on his judicial philosophy. A Judge Stephen Breyer of the First Circuit Britain. statement issued by four senators at Court of Appeals or Judge Ruth Bader Gins- Fifteen years later, President James the time stated they opposed his nomi- burg of the District of Columbia Court of Ap- Madison’s nomination of Alexander nation because his ‘‘decisions and his peals. Wolcott was rejected by the Senate by courtroom demeanor had been openly Both were confirmed with relative a vote of 9 to 24, in part, based of his hostile to the black, the poor and the ease. So since the ranking member of policies while a U.S. collector of cus- unpopular.’’ the Judiciary Committee—the minor- toms and his actions strongly enforc- And, of course, one of President Ron- ity ranking member—had rec- ing controversial embargoes. ald Reagan’s nominees, Judge Robert ommended these nominees, it is not President Andrew Jackson, in 1835, Bork, whose views and legal philosophy surprising that they moved through nominated Roger Taney to the Su- were of great concern. Judge Bork be- the confirmation process relatively preme Court. He had served as the Sec- lieved Americans had no constitutional easy. I am confident that if President retary of Treasury, and he removed the right to use contraception. He argued Bush had decided to nominate any of Government’s deposits from the Bank that in guaranteeing one man, one the candidates suggested by the cur- of the United States. Senators who vote, the Court ‘‘stepped beyond its rent ranking member of the com- were opposed to that move offered a boundaries as an original matter.’’ And mittee, Senator LEAHY, the process motion postponing his nomination in- he had a broad view of Executive could have been smooth this time as definitely, which passed 24 to 21. power. He once asserted that a law re- well. But he didn’t. With that said, I President James Polk, nominated quiring the President to obtain a court also believe that today is a very dif- George Woodward in 1845, and allega- order before conducting surveillance in ferent day than the time when Justice tions arose that as a delegate to the the United States, and against U.S. Ginsburg and Justice Breyer were be- 1837 Constitutional Convention, he in- citizens was ‘‘a thoroughly bad idea fore the Senate. Let me point out some troduced an amendment that would and almost certainly unconstitu- of the differences. There was not the have prohibited any foreigners who tional.’’ polarization that there is within Amer- came to Pennsylvania after 1841 from Most recently, White House Counsel ica today. There was not the clear ef- voting or holding office. Harriet Miers was withdrawn even be- fort to upset the current balance of the President Ulysses S. Grant nomi- fore consideration by the Judiciary Court and move it far to the right. nated Ebenezer Hoar in 1869, who had Committee due to the rightwing’s ob- When Justices Ginsburg and Breyer served as Attorney General. Senators jections. were before the Senate, it had been

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00007 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.006 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S152 CONGRESSIONAL RECORD — SENATE January 26, 2006 more than 50 years since any statute Planned Parenthood v. Casey had just on Presidential powers, and individual had been struck down by the Supreme recently been decided. Casey made it liberty and privacy interests. I want to Court on commerce clause grounds. clear that Roe v. Wade remained con- talk about these for a minute in the It wasn’t actually until April 26, 1995, trolling precedent; it affirmed a wom- context of Judge Alito. after both Justices had been confirmed, an’s constitutional right to privacy; it It is my conclusion that Judge Alito that the Supreme Court began to re- clarified that States have an interest would most likely join Justices Thom- visit an area that had been well settled to protect viable unborn life; and it as and Scalia in the originalist and since the New Deal in the mid-1930s in held that many State laws relating to strict constructionist interpretations its decision on a case known as Lopez. abortion were valid. of the Constitution. And those are the In U.S. v. Lopez, the Court struck down With the Casey decision, there was a interpretations that have been used by the Gun-Free School Zones Act that general acceptance that a woman’s the Rehnquist Court in the past decade had been passed by the Congress, which right to choose was secure. There had to overthrow all or portions of the 30 essentially prohibited the possession of been a clear and direct challenge to laws to which I just referred. I have a firearm within a thousand feet of a Roe—as a matter of fact, it has been come to this conclusion based on Judge school. It was this decision that sig- challenged at least three dozen times— Alito’s record in the Reagan adminis- naled the beginning of the Rehnquist and the Court had affirmed in Casey tration and on the bench. Court’s federalism ‘‘revolution.’’ In the Roe’s central holding. In 1986, Congress passed what seemed next decade, from 1995 to 2005, the Finally, as I noted when discussing to me a pretty simple law. It was called Rehnquist Court struck down all or Senator HATCH’s book ‘‘Square Peg,’’ the Truth in Mileage Act. It basically portions of 30 congressionally enacted at the time Justices Ginsburg and forbid anyone from tampering with laws, 10 of them on federalism grounds. Breyer were before the Senate, we odometers in automobiles. As a deputy Here they are on this chart. I will point didn’t have an administration that was at the Office of Legal Counsel, Judge out some of them to you: bent on moving the Court dramatically Alito recommended that President The Indian Gaming Regulatory Act, in one direction. Yet today, when we Reagan veto this bill because it vio- the Federal Election Campaign Act, are evaluating a nominee to replace lated principles of federalism. the Cable Television Consumer Protec- Justice Sandra Day O’Connor—a piv- Judge Alito also drafted a statement tion and Competition Act, the Reli- otal Justice, a Justice who was the for President Reagan to make when he gious Freedom Restoration Act, the fifth vote in 148 out of 193 decisions— vetoed the bill, asserting ‘‘it is the Communications Decency Act, the the President continues to assert that States and not the Federal Govern- Brady Handgun Violence Prevention he will only nominate those who view ment that are charged with protecting Act, the Water Resources Development the Constitution through a lens of the health, safety, and welfare of their Act, the Coal Industry Retiree Health strict constructionism and originalism. citizens.’’ It is the States, not the Federal Gov- Benefit Act, section 316 of the Commu- I think we must remember what ernment. The implication is the Fed- nications Act, the Fair Labor Stand- these terms mean. I want to take a mo- eral Government does not have a role ards Act, the Age Discrimination in ment to do so. It is widely accepted in protecting the health, safety, and Employment Act, the Violence Against among legal scholars that strict con- structionists and originalists look to welfare of our citizens. Women Act, the Telecommunications Judge Alito’s restricted views of con- evaluate the Constitution based on Act, the Americans with Disabilities gressional authority later surfaced in what the words say as written and Act, section 2511 of the Omnibus Crime his decisions while on the Third Cir- what the Framers intended those words Control and Safe Streets Act, the FDA cuit. For me, a prime example is the to mean at the time they were written. Modernization Act, the Child Pornog- case of U.S. v. Rybar. This case is sig- raphy Act, the Bipartisan Campaign If we examine what these terms could mean when applied to actual constitu- nificant because it was a case where Reform Act, the Child Online Protec- Congress clearly had the authority to tion Act and on and on and on, using tional questions today, it becomes clear why most legal scholars view the enact legislation, and yet Judge Alito various sections of the Constitution to wrote a separate opinion, a dissent, to Constitution as a living document, able hold impermissible congressional ac- argue against the law. He was the sole to adjust to the differences of the coun- tions in these areas. dissenter, and he was outvoted. Now, this is a major thrust of the try today. Remember, in colonial In his opinion, he used a legal techni- Court, and it is a serious thrust. It is times, there were 13 colonies and cality that would have thrown out the one that this body and the other body around 3 million people. Today we are conviction of a man who had illegally ought to understand because, with close to 300 million people and we are possessed and sold fully automatic ma- these actions, the Court was essen- 50 States. chine guns in the State of Pennsyl- Justice Brennan wrote in 1986 about tially declaring that the Congress can- vania. not legislate in many important areas, this, and I quote him: In reaching his conclusion, he seemed areas that are very important to me During colonial times, pillorying, flogging, to ignore past precedents, clearly es- and to my constituents. branding, and cropping and nailing of the tablishing congressional authority to When Justice Ginsburg and Justice ears were practiced in this country. Thus, if we were to turn blindly to history for an- regulate firearms, such as the Miller Breyer were before the Senate, we were swers to troubling constitutional questions, case of 1939. not in the midst of a war with Iraq, nor we would have to conclude that these prac- He also dismissed previous statutes was our country faced with a war on tices would withstand challenge under the that had already outlined the obvious terror that could last for our lifetime cruel and unusual clause of the eighth impact guns have on interstate com- and, for all we know, for our children’s amendment. merce, even when sold within a State. lifetime. Few would have predicted He wrote that in the Harvard Law To me, that was a major indication of that the President would authorize the Review in December of 1986. his thinking. use of torture in defiance of the Geneva If an originalist analysis were applied The facts in this case make this Convention and the Convention to the 14th amendment, women would point even more obvious: one gun was Against Torture and Military Law; not be provided equal protection under from China, the other was a military that the President would argue that he the Constitution, interracial marriages M3 submachine gun made during World had inherent plenary authority to de- could be outlawed, schools could still War II by General Motors. Clearly, tain Americans without due process; be segregated, and the principle of one both guns had traveled through inter- and that the President would authorize man, one vote would not govern the state commerce before reaching Penn- the electronic surveillance of Ameri- way we elect our representatives. sylvania where the arrest took place. cans in direct violation of the law, a My concerns about confirming a Judge Alito’s views on congressional law passed by this body, the other strict constructionist or originalist to power could also limit Congress’s abil- body, and signed by President Carter in the Court are best demonstrated by ity to protect the environment. In the 1978. what this legal reasoning could mean next few years, the Supreme Court is In addition, when Justices Ginsburg in three important areas: congressional likely to hear a number of cases chal- and Breyer were before the Senate, authority to enact legislation, checks lenging Congress’s authority to pass

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00008 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.007 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S153 laws protecting the environment, such the Militia according to the discipline pre- ory. In 1988, this unitary executive the- as the Clean Water Act and the Endan- scribed by Congress . . . and ory was rejected by the Supreme Court gered Species Act. In fact, later this To make all Laws which shall be necessary in a decision called Morrison v. Olson. term, the Supreme Court will hear two and proper for carrying into Execution the It was rejected overwhelmingly. The foregoing Powers. . . . cases. One is Carabell v. Army Corps of majority was 7 to 1. The opinion was Engineers, and the other Rapanos v. In other words, we are responsible to offered by Justice Rehnquist. The U.S. give the powers to the President for Court rejected Justice Scalia’s argu- The issue in both is whether the Con- him to execute in these areas. That is ment that the independent counsel gress has the authority to regulate a very important article, and it is the must be under the executive branch nonnavigable waterways under the heart of congressional authority and and report to the President. That took Clean Water Act. Both are brought to the balance of power at a time of crisis. care of what is called the theory of the the Court on the basis that Congress Our national security and constitu- unitary executive. could not regulate environmental con- tional liberties suffer when either Yet more than a decade later, Judge trol in nonnavigable waterways. If the branch oversteps its bounds. Today our Alito declared: Supreme Court were to strike down Nation is in a very different place than I still think that this theory best captures this provision, the Federal Government it was 10 years ago. We face new chal- the meaning of the Constitution’s text and would lose its primary tool to protect lenges to our constitutional framework structure. wetlands. of checks and balances. Clearly, this is a statement for ex- If confirmed, Judge Alito could be This President has asserted unprece- panded Presidential authority and for the decisive vote in these environ- dented authority in many areas which the unitary executive. mental cases, and his record on the en- has raised profound constitutional Judge Alito’s vague answers at the vironment, in this regard, is not reas- questions. They include: hearing, coupled with the specific suring. Let me give an example. May the President authorize torture? statements made a few years ago, lead In the case Public Interest Research Does the Constitution permit the me to conclude that he is a strong pro- Group v. Magnesium Elektron, it was President to order the arrest and de- ponent of expanded Presidential au- undisputed that a chemical company tention of individuals inside the United thority and that he is not committed had committed 150 different violations States without due process or access to to a proper system of checks and bal- of the Clean Water Act by illegally counsel? ances, which brings me to my third dumping chemicals into a river. The Does the Constitution allow the point. plaintiffs in the case were members of President to violate laws based on in- If one is pro-choice in this day and an environmental group and had herent plenary power? age, with the balance of the Court at stopped using the river because of the Is it constitutionally permissible for stake, one cannot vote to confirm pollution. the President to authorize electronic Judge Alito. I, for one, really believe Judge Alito voted in a 2-to-1 decision surveillance of Americans without a there comes a time when you just have to throw the case out. He adopted a warrant in violation of Federal law? to stand up, particularly when you narrow reading of both the Clean Water Given the critical importance of know the majority of people stand as Act and the legal concept of standing. these questions to both our national you do. And I don’t make that state- In doing so, his conclusion would have security and our constitutional democ- ment simply based on my gut instincts. gutted the provision that allows indi- racy, I asked Judge Alito a variety of It is reflected in the polls we see. vidual citizens to enforce the law. questions to get a sense of his vision of A Gallup poll released earlier this Three years later, the Supreme Court the balance of power between the week, January 24, stated that 63 per- in a 7-to-2 decision in Friends of the President, the Congress, and the cent of Americans do not want to see Earth v. Laidlaw rejected Judge Alito’s courts. Roe overturned. And that is backed up expansive view of the standing require- Rather than engage in a productive by other polls. ment, making it easier for individuals discussion about the issues, he simply A CNN/USA Today/Gallup poll re- to sue to stop violations of the Clean repeated obvious truisms, such as ‘‘no- leased earlier this month, January 9, Water Act. body is above or below the law,’’ or said a majority of Americans, 56 per- So this is a serious concern—Clean agreed to the unsurprising proposition cent, do not believe Judge Alito should Water Act, Clean Air Act, Endangered that the Constitution and the laws of be confirmed if his confirmation hear- Species Act. Our ability to legislate in the Nation are supreme. He did not an- ings reveal he would vote to overturn a these areas is very much at stake with swer whether the President had to fol- woman’s right to have an abortion. this judge. low these laws. Around here when it comes to the Judge Alito’s views on the scope of His answers were inadequate, so I was issue of abortion the tail wags the dog. Presidential powers are deeply con- left to evaluate his views based on his The minority is the dominant voice, cerning to me at this point in Amer- prior record. while the majority of people out there ican history. The Constitution gives At the Department of Justice, Judge feel very differently on the question. A both the President and the Congress Alito was part of the effort to press for majority of people, it is clear, in the critical roles in the defense of our Na- expanded Presidential power, and there United States of America believe that tion. The Constitution specifically pro- is no doubt about that. a woman should have certain rights of vides in article I, section 8: While serving in the Department of privacy—privacy that is limited by the The Congress shall have Power To . . . pro- Justice, he wrote a memo on Presi- State’s interest to protect potential vide for the common Defense and general dential signing statements, and here is life, but a certain right to privacy. If Welfare of the United States . . . what he argued: you know this nominee is not going to To declare War, grant Letters of Marque From the perspective of the executive respect those rights but holds differing and Reprisal, and make Rules concerning branch, the issuance of interpretive signing views, then you have to stand up. Captures on Land and Water; statements would . . . increase the power of I am very concerned about the im- To raise and support Armies . . . the Executive to shape the law. To provide and maintain a Navy; pact Judge Alito could have on wom- To make Rules for the Government and ‘‘The power of the Executive to shape en’s rights, including a woman’s right Regulation of the Land and Naval Forces the law.’’ Do we believe this is correct, to make certain reproductive choices ... or do we believe that the ability to as limited by State regulation. To provide for calling forth the Militia to make and shape the law rests with the When the issues of Roe and precedent execute the Laws of the Union, suppress In- Congress, and the President can sign it came up during the hearings for Chief surrections and repel Invasions; or veto and indicate his reasons for so Justice Roberts, he engaged in a con- To provide for organizing, arming, and dis- doing, but not shape the law to his spe- versation with me and other Senators. ciplining the Militia, and for governing such Part of them as may be employed in the cific demand? Then when speaking be- He acknowledged that Roe is well set- Services of the United States, reserving to fore the Federalist Society in Novem- tled. He discussed the different factors the States respectively, the Appointment of ber of 2000, Judge Alito expressed his the Court considered when Casey af- the Officers, and the Authority of training support for the unitary executive the- firmed the central holding of Roe. In

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00009 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.009 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S154 CONGRESSIONAL RECORD — SENATE January 26, 2006 fact, during Judge Alito’s hearings, I lighted when in Alexander v. Whitman, Justice, Judge Alito argued three af- read part of the Roberts transcript to Judge Alito wrote a separate opinion firmative action cases, each time urg- him and I gave him an opportunity to to clarify that he disagreed with the ing the Supreme Court to strike down review it. I then asked him to tell me Court’s ‘‘suggestion that there could be affirmative action programs. The argu- where he differed from Chief Justice ‘human beings’ who are not ‘constitu- ments he made in these cases are con- Roberts and if he, too, believed Roe is tional persons.’’’ trary to the Supreme Court’s subse- well settled. He responded this way: Judge Alito may not agree with the quent decision in Grutter v. Bollinger, I think that depends on what one means by Supreme Court’s holding in Roe that a another 5–4 decision where Sandra Day the term well settled. woman’s health must be protected for a O’Connor was the decisive fifth vote. In That was after reading an explicit law to be constitutional. This issue was Grutter, the Court held that the Uni- and full description of what the now raised in Planned Parenthood v. Farm- versity of Michigan and other colleges Chief Justice had said before us. His re- er where Judge Alito agreed with the and universities receiving Government sponse clearly indicated, at least in my decision of the Court to strike down a funding could consider race, ethnicity, view, that he didn’t regard precedent New Jersey abortion law. However, he and gender in school admissions poli- that highly. asserted that the Court’s opinion, in- cies in order to encourage a diverse I next tried to talk to him about his cluding the discussion about the lack student body. legal views and what he meant when he of a health exception, was ‘‘never nec- Judge Alito encouraged the Senate to said ‘‘precedent is not an inexorable essary.’’ judge him on his 15-year record on the In addition, I was deeply troubled by command.’’ I specifically stated: Third Circuit. An examination of this Judge Alito’s 1985 job application. Let record reveals a judge who tends to Those are the words that Justice me tell you where he was in 1985. He Rehnquist used arguing for the overturning rule against civil rights more often of Roe. So my question is did you mean it was not a youngster. Senator DURBIN than his colleagues. A review of Judge that way? pointed this out in the Judiciary Com- Alito’s opinions by Yale Law School mittee. He had already clerked at a The most Judge Alito would say is professors concluded that in the area of New Jersey law firm. He had already this: civil rights law, he consistently used clerked for a Federal court of appeals procedural and evidentiary standards The statement that precedent is not an in- judge. He had spent 4 years as an as- exorable command is a statement that has to rule against female, minority, age, been in the Supreme Court case law for a sistant U.S. attorney, and he had spent and disability claimants. Similarly, a long period of time. And sitting here, I can’t 4 years as Assistant to the Solicitor review of 311 published opinions by remember what the origin of it is. . . . General in the Department of Justice, Knight-Ridder found that, although his In providing nothing more than this and he had argued 12 cases on behalf of opinions were rarely written with obvi- for an explanation, Judge Alito spoke the Federal Government before the Su- ous ideology, he seldom sided with an volumes about his view on Roe. I lis- preme Court and numerous other cases employee alleging discrimination. tened carefully to the testimony of before the Federal courts of appeals. So Here again, there is a case, Riley v. many legal scholars, including profes- this was not some naive ingenue com- Taylor, that is particularly troubling. sors in constitutional law. One I want ing down the pike, trying to get a job This case took place in Delaware, to quote, and I quoted it in the com- in the administration. He filled out the where prosecutors had excluded every job application and gratuitously added mittee as well because it meant a great African-American juror in all four of these words, that he believed ‘‘the Con- deal to me, is a professor of constitu- its first-degree murder trials that had stitution does not protect a right to an tional law at Harvard, Professor Larry taken place in a Delaware county that abortion.’’ He was not asked the ques- Tribe. He said that, with the addition year. A majority of the Third Circuit, tion; he simply added those words. Why of Judge Alito: sitting en banc, concluded that exclud- would you do that if you have argued 12 ing every Black juror in four State The Court will cut back on Roe v. Wade, cases before the Supreme Court, if you step by step, not just to the point where, as murder trials was evidence of race- spent 4 years as an assistant U.S. at- the moderate American center has it, abor- based discrimination. I would conclude torney, if you have argued before Fed- tion is cautiously restricted, but to the point that, too. The Court noted that it is eral circuit courts, you have clerked where the fundamental underlying right to not ‘‘necessary to have a sophisticated for judges—why would you do it unless liberty becomes a hollow shell. analysis by a statistician to conclude it was a deeply held view of yours that It is important to remember that that there is little chance of randomly you wanted to express? Roe, as modified by Casey, is in fact a selecting four consecutive all white ju- moderate compromise that considers I asked him about this privately in my office and he said that he was at- ries.’’ both sides of the question. Together, Judge Alito dissented. In contrast, he Roe and Casey protect women’s privacy tempting to get a political appoint- ment. But he also told me that the ap- argued that ‘‘there is little chance of interest but also allow States to pass randomly selecting left-handers in five regulations to restrict that interest plication speaks for itself and he did not disavow what he wrote. That spoke out of six Presidential elections. But postviability. does it follow that the voters cast their If you look carefully at Judge Alito’s volumes about where he is today. It is pretty clear to me that, given a ballots based on whether a candidate decisions in three cases—Planned Par- chance, he would vote to overthrow was right- or left-handed?’’ enthood v. Casey, Blackwell v. Knoll, This dissent demonstrates a failure Roe. and Planned Parenthood v. Farmer— He also wrote in that same applica- to grasp the critical point. Left-handed you will see in his writing where seri- tion: individuals have not suffered the long ous questions of his views arise. While history of discrimination in this coun- In college, I developed a deep interest in sustaining Roe in these cases, Judge constitutional law, motivated in large part try the way African Americans have. I Alito’s opinions also raised serious by disagreement with Warren Court deci- think to use that, as a Federal appel- questions indicating if Judge Alito was sions, particularly in the areas of criminal late court judge, as a bona fide argu- not bound by precedent, or there was a procedure, the Establishment Clause, and re- ment to say that you can have four gray area, he would weaken Roe by apportionment. consecutive murder trials in a county narrowly interpreting what constitutes The Warren Court’s reapportionment and exclude every African American an undue burden. Since in his dissent decisions established the principle of from the jury shows you have a mode in Casey, Judge Alito argued that one man, one vote, and they stopped of thinking that is not in the main- spousal notification was not an undue the abhorrent practice of diluting votes stream of American legal thinking. burden—a position rejected by the Su- by making some voting districts larger So, bottom line, based on all of the preme Court. than others. For example, prior to information before me, I have decided Judge Alito may have a different in- these decisions some voting districts in to vote against Judge Alito’s confirma- terpretation of when life begins that the same State were 41 times the size tion. Mine is a vote that is made with could dramatically alter the Court’s of others. the belief that a person’s legal rea- rulings and impact women’s access to As an attorney with the Solicitor soning and judicial philosophy, espe- contraception. This concern was high- General’s Office of the Department of cially at a time of crisis, at times of

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00010 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.011 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S155 conflict, and at times of controversy, These differences, however are not only tributions to legal views endorsed by the ad- do mean a great deal. It is my belief manifested in judicial philosophy, but sadly ministration including ‘‘that the Constitu- that this nominee’s legal philosophy in critical aspects of his character and integ- tion does not protect a right to an abortion,’’ and views will essentially swing the rity. and his integral role as an attorney in the Our reasons for oppose this nomination go Reagan Justice Department where he sought Court far out of the mainstream, to- far beyond Judge Alito’s personal and legal ‘‘opportunity to advance the goals of over- ward legal philosophy and views that opposition to reproductive health services ruling Roe v. Wade and, in the meantime, of do not reflect the majority views of including abortion—but center on the under- mitigating its effects. this country. I will vote no. I urge my lying principles of the qualifications nec- We were not convinced by his claim during colleagues to vote no. essary to serve on the Supreme Court. his confirmation hearings that he has an In our view, serving on the highest court in I ask unanimous consent to have open mind on the right to choose as em- the land takes a fundamental commitment bodied in Roe. Given his belief that the Con- printed in the RECORD a list of Cali- to the individual rights enshrined in the stitution does not protect a right to an abor- fornia organizations that oppose Judge Constitution. These include the rights of tion and his personal view that abortion is Alito’s confirmation and a set of let- women to make decisions about their bodies; morally untenable, it would be foolhardy to ters from pro-choice organizations fol- the rights of employees to seek judicial re- accept his claim of open mindedness. lowing my full remarks, and I yield the lief when they feel they have been discrimi- During opening statements of the Alito floor. nated against based on race or gender; a be- lief in the ‘‘one person, one vote’’ doctrine hearings, Senator Edward Kennedy asked the There being no objection, the mate- defining questions for the entire hearings. He rial was ordered to be printed in the that has been a pillar of American democ- racy; and an understanding that all citizens began, ‘‘So the question before us in these RECORD, as follows: of the United States have equal standing hearings is this: Does Judge Alito’s record CALIFORNIA ORGANIZATIONS THAT OPPOSE under the law regardless of which religious hold true to the letter and the spirit of equal JUDGE ALITO’S NOMINATION tradition they identify with, if any. justice? Is he committed to the core values ACLU of Northern California; ACLU of Throughout his time on the federal bench, of our Constitution that are at the heart of Southern California; AFSCME California; Judge Alito has not shown an allegiance to our nation’s progress? And can he truly be Alliance for Justice; Asian Pacific Law Cau- these principles and has in fact, in many evenhanded and fair in his decisions?’’ cus; Asian Pacific American Legal Center of cases, shown hostility to them. Through his words, his legal actions and Southern California; California Church Im- Equally important is the integrity and his incontrovertible actions to date, the sim- pact; California National Organization for character of the mail or woman being nomi- ple answer is no. Judge Alito cannot be Women; California Nurses Association; Cali- nated. This integrity includes a consistent counted on to issue rulings and to write fornia State Conference of NAACP Branches; view of the law and a guarantee that the opinions based upon sound legal philosophy Coalition for Economic Equity; California principle espoused by the nominee are based and the proper consideration of past land- Women’s Agenda; Committee for Judicial on sound legal reasoning and conscience— mark rulings by the Court. Judge Alito can- Independence; Disability Rights Education and not based upon which political appoint- not be counted on to protect the individual and Defense Fund; Ella Baker Center; Equal ment or job they are applying for at the rights and freedoms of Americans who count Justice Society; Equal Rights Advocates; time. Judge Alito has an unfortunate mate on the federal judiciary to protect them from Greenlining Institute. and well-documented history of changing his undue burdens imposed by ideologically driv- Lawyers Committee for Civil Rights of the positions on key personal rights based upon en governments and administration officials. San Francisco Bay Area; Mexican American which position in government he is being And lastly, Judge Alito cannot be counted on Legal Defense and Educational Fund; considered for. To us, this suggests a nomi- to deliver justice in a manner that does not MoveOn.org; NARAL Pro-Choice California; nee whose values in public service are not commingle previously stated strongly held NAACP Legal Defense and Educational grounded in principles, integrity and respect personal and legal viewpoints that will be of Fund; National Council of Jewish Women for individual rights, but in the politics and serious detriment to members of our society. California; National Health Law Program; personal ideology of the moment. I urge you to vote no on this nomination People For the American Way West; Planned Judge Alito has also demonstrated through and by doing so to save the rights to privacy Parenthood Affiliates of California; Planned his words and his actions that what he and the individual freedoms and choice to Parenthood Golden Gate; National Lawyers pledges during confirmation hearings does which all Americans—regardless of race, Guild California; Planned Parenthood Los not necessarily reflect his actions once con- gender, religion or sexual orientation—are Angeles; Progressive Jewish Alliance; Public firmed and behind the bench. During his 1990 entitled. Advocates Inc.; Rainbow Push California; confirmation hearings for the U.S. Court of Sincerely, SEIU California State Council; Sierra Club; Appeals for the Third Circuit. Alito promised FRANCES KISSLING, Women’s Employment Rights Clinic; and to rescue himself from any cases involving President. Women’s Leadership Alliance. Vanguard Group Inc. and Smith Barney Inc., companies which have handled some of his NARAL PRO-CHOICE AMERICA, CATHOLICS FOR A FREE CHOICE, personal investments. Despite this promise, January 11, 2006. Washington, DC, January 11, 2006. Alito ruled on a case involving Smith Barney U.S. SENATE, Senator ARLEN SPECTER, in 1996 and Vanguard Group in 2002. When Washington, DC. Chairman, pressed about this major lapse, Alito re- DEAR SENATOR: On behalf of NARAL Pro- Senator PATRICK LEAHY, sponded that the 1990 promise applied only to Ranking Member, U.S. Senate Committee on the his first few years on the bench. This is a Choice America, I am writing to express our Judiciary. clearly troubling example of either a major opposition to the confirmation of Samuel DEAR CHAIRMAN SPECTER, RANKING MEM- ethical lapse on the part of Judge Alito or Alito to the U.S. Supreme Court. During his BER LEAHY AND MEMBERS OF THE JUDICIARY yet another example of the nominee saying career, Alito has consistently demonstrated COMMITTEE: I write to you today as president one thing to get the job, and then playing by hostility toward fundamental reproductive of Catholics for a Free Choice, an organiza- different rules when he wins confirmation. rights. If he is confirmed as an Associate tion that shapes and advances sexual and re- Of critical importance to Catholics for a Justice on the Supreme Court, women will productive ethics that are based on justice Free Choice is the outright hostility to and likely lose critical protections that Roe v. and reflect a commitment to women’s well the politicization of reproductive rights by Wade established. being, to express our opposition to the nomi- this nominee. Unlike Chief Justice Roberts At the Department of Justice in the 1980s, nation of Judge Samuel A. Alito Jr. to the who was well known to be personally op- Alito actively worked to limit and ulti- Supreme Court of the United States. posed to abortion before he was confirmed to mately overturn Roe v. Wade. As an assist- Our decision to ask the U.S. Senate Com- the Court, but pledged to separate those ant to the Solicitor General, he wrote a mittee on the Judiciary to reject this nomi- views and respect the law of the land nomi- lengthy, detailed strategy memorandum in nation and not to send this nominee for an nee Alito has made both his personal and which he recommended that the Reagan ad- up-or-down vote by the entire Senate is not legal views on this subject a hallmark of his ministration intervene in a significant abor- one that we take lightly. Indeed, Catholics career advancement. tion-related case before the Supreme Court for a Free Choice, after examining his record Throughout his career, Judge Alito has in order to advance the administration’s an carefully following Chief Justice John shown that he believes—both personally and anti-choice agenda. In the memo, Alito de- Roberts’ confirmation hearing did not oppose legally—that the right to choose, to make tailed his legal strategy to dismantle the his nomination. decisions about the most private and pro- protections of Roe v. Wade, while pushing to- Based on public documents released by rel- found aspect of a woman’s life, i.e. when and ward the ultimate goal of overturning the evant government agencies and from pub- whether to have children, is not protected landmark decision altogether. He supported lished interviews and statements with and under the Constitution. There are several ex- even the most intrusive and unreasonable re- from the nominee himself during the first amples of this, including his 1985 application strictions on reproductive freedom. Perhaps days of the confirmation hearing, it is evi- letter to then-Attorney General Edwin most disturbingly, he saw nothing wrong dent that Judge Alito is a vastly different Meese III in which Alito wrote that he was, with the government forcing doctors to tell nominee from Chief Justice John Roberts. ‘‘particularly proud’’ of his personal con- patients that their use of birth control may

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00011 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.012 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S156 CONGRESSIONAL RECORD — SENATE January 26, 2006 cause abortion—an utterly inaccurate state- pose his confirmation to the Supreme Court. ‘‘closely held’’ personal view that Roe should ment that defies scientific definitions en- I urge you to vote ‘‘no’’ on this nomination. be overturned, to work to unravel settled dorsed by the medical community and the Thank you for your consideration. law and to influence adversely the course of federal government. My best, the Constitution’s basic protections for ac- Far from claims to the contrary, Alito’s NANCY KEENAN, cess to reproductive health care for more work at the Department of Justice was hard- President. than a generation. Judge Alito’s record sug- ly that of a government functionary. Accord- gests that, if confirmed, he would do just ing to a then-colleague in the Solicitor Gen- PLANNED PARENTHOOD, FEDERATION that. eral’s office, Alito sought out the oppor- OF AMERICA, INC. AND ACTION On behalf of the millions of women and tunity to work on the administration’s FUND, INC. men who count on us to protect their repro- friend-of-the-court brief in the case, the col- Washington, DC, January 10, 2006. ductive health, we urge you to oppose the league has explained that Alito was instru- Senator ARLEN SPECTER, nomination of Judge Samuel Alito to Asso- mental in crafting the brief, providing ‘‘the Chairman, Committee on the Judiciary, U.S. ciate Justice and protect the right to choose. research, the thinking, as well as the legal Senate. Sincerely, research and analysis.’’ In application for an- Senator PATRICK LEAHY, KAREN PEARL, other job in the Department of Justice, Alito Ranking Member, Committee on the Judiciary, Interim President. later boasted that he was ‘‘particularly U.S. Senate. proud’’ of his contribution in the case ‘‘in DEAR CHAIRMAN SPECTER AND SENATOR [Jan. 11, 2006] which the government has argued in the Su- LEAHY: On behalf of the Planned Parenthood, RMC OPPOSES JUDGE ALITO FOR SUPREME preme Court that. . .the Constitution does the world’s largest and most trusted vol- COURT not protect a right to an abortion.’’ He em- untary reproductive health care provider, we phasized that this was a ‘‘legal position’’ in urge you to oppose the nomination of Judge The Republican Majority for Choice (RMC) which he personally believed ‘‘very strong- Samuel Alito to be Associate Justice of the regrettably announces its opposition to the ly.’’ United States Supreme Court. Planned Par- nomination of Judge Samuel Alito to the Su- It was my hope that, during his Senate enthood has a long-standing history of work- preme Court. hearings, Alito would explain further these ing to ensure the protection of reproductive RMC is an organization whose core mission writings and share with senators and the rights, as well as working to advance the so- is to protect the right to choose as outlined American public whether he still holds these cial, economic, and political rights of in Roe v. Wade and to represent the millions legal opinions about a woman’s right to women. Because the United States Supreme of Republicans who strongly support this choose. Unfortunately, thus far, he has failed Court wields the ultimate and unreviewable right. After much research and analysis of to do so. Alito admitted that his 1985 state- power to define the contours of women’s Mr. Alito’s own record and statements on ment accurately reflects his views at the rights, the right to privacy, reproductive this issue of individual freedom it is clear time, but then flatly, repeatedly, refused to freedoms, and other basic civil rights, that he is an advocate for further restricting answer whether he continues to believe that Planned Parenthood believes that justices this right. ‘‘the Constitution does not protect the right appointed to this Court must demonstrate an Judge Alito seems by all measures to be an to an abortion.’’ Especially given his willing- affirmative commitment to safeguarding experienced and capable jurist, but one who ness to state his legal views in other areas, these fundamental rights and freedoms. is out of step with mainstream Americans on we have no choice but to conclude that he in We believe that not only has Samuel Alito, the issue of abortion and maintaining the fact continues to hold this extremely trou- Judge for the Third Circuit Court of Appeals, legal right to choose. bling view of women’s fundamental freedom, failed to demonstrate a commitment to pro- There is no crystal ball to predict how a and that he will vote to dismantle and ulti- tecting these rights, he has revealed himself Justice Alito would rule in future cases; mately overturn Roe v. Wade should he be to be actively hostile toward them. Indeed, therefore we have closely monitored the con- confirmed. his record is one of open antagonism toward firmation hearings with the hope that Judge Again, turning back to Alito’s career: constitutional protections for reproductive Alito would offer some clarifying statements After his appointment to U.S. Court of Ap- rights and freedoms. Therefore, PPFA that would allay our concerns about his peals for the Third Circuit, Alito tried, in strongly opposes his nomination to the record. Instead, he side-stepped the issue of the single case before him affording an op- United States Supreme Court. whether or not the right to privacy in the portunity to shape the contours of reproduc- Alito has made clear on repeated occasions Constitution extends to reproductive choice. tive-rights law, to allow states the greatest his hostility toward the right to choose. In He avoided answering whether Roe was set- latitude for restricting women’s’s right to 1985, while serving as an Assistant to the So- tled law and existing precedent required a choose. As a member of the three-judge panel licitor General in the Department of Justice, health exception to statutes limiting a wom- that heard Planned Parenthood of South- Alito devised and promoted a legal strategy an’s access to abortion. eastern Pennsylvania v. Casey before the to bring about the eventual overruling of Without such assurances, we can only cal- case went to the Supreme Court, he wrote a Roe v. Wade, and, in the meantime, to ‘‘miti- culate his judicial philosophy on reproduc- dissent in which he voted to uphold every re- gate its effects.’’ In an application he sub- tive rights through the prism of his past ac- striction on the right to choose at issue in mitted to become a Deputy Assistant U.S. tions and statements. As the replacement for the case. He argued in favor of a statute that Attorney General, he wrote that he was the architect of the ‘‘undue burden’’ stand- would have forced married women to notify ‘‘particularly proud’’ of his work on cases ard, the stakes are too high for RMC to sup- their husbands before seeking abortion care, where the government argued that ‘‘the Con- port an appointee who outlined a blueprint even though the statute would endanger and stitution does not protect a right to an abor- to dismantle that very standard. coerce women who may fear abuse if forced tion.’’ The reality is that Judge Alito would not to notify their husbands. Just a year later, His hostility continued as an appellate have to vote to overrule Roe in order to be Justice Sandra Day O’Connor cast the deci- judge. Indeed, Judge Alito’s judicial record the architect of the denial of a woman’s sive vote to strike down the law. Justice reflects and advanced the very legal strategy right to choose. He could give lip service to O’Connor, along with her coauthors, wrote, he laid out years earlier to undermine the respecting Roe while upholding the numer- ‘‘Women do not lose their constitutionally right to choose. Judge Alito was the lone dis- ous legislative efforts to chip away at repro- protected liberty when they marry.’’ senter in Planned Parenthood of South- ductive freedom. The cumulative result is Alito and his defenders sometimes cite eastern Pennsylvania v. Casey when the case that Roe v. Wade and its progeny are ren- other: abortion-related decisions he has was before the Third Circuit. Writing sepa- dered meaningless. issued as claimed evidence that his legal phi- rately from his colleagues, Alito voted to up- But Judge Alito’s position on choice, how- losophy does not predispose him against a hold a state law that forced married women ever, is not the only disappointment sur- woman’s right to choose. But the claim is to notify their husbands prior to obtaining rounding his nomination. The selection of baseless. Planned Parenthood of Central New an abortion. On review, a majority of the Su- Judge Alito sends a very clear message from Jersey v. Farmer was squarely controlled by preme Court—including Justice O’Connor— the Bush Administration and the Republican a Supreme Court case that dealt with a vir- emphatically rejected Alito’s interpretation leadership in Congress that they are willing tually identical statute. Elizabeth Blackwell as one based on outdated notions of women’s to continue steering the party into a Health Center for Women v. Knoll was de- role in marriage and society and held the marginalized corner that puts it at odds with cided on administrative law grounds and husband notification provision unconstitu- most voters. tells us nothing about how Alito will rule on tional. Sadly, we have come to a point at which a woman’s constitutional right to privacy Judge Alito’s record demonstrates hos- average Republicans are beginning to aban- and choice. Regrettably, pro-choice Ameri- tility to women’s equality in general and re- don the GOP policy and candidates. We have cans can take no comfort in these decisions. productive rights specifically. Judge Alito seen this in the public outcry concerning At every meaningful opportunity Alito has has been nominated to replace Justice San- President Bush’s opposition to stem cell re- sought to restrict our constitutional freedom dra Day O’Connor, who has for over a decade search; we saw it last November in the Vir- of choice. played a crucial role in protecting these fun- ginia gubernatorial race, and we will see it Because Samuel Alito’s record is rife with damental rights. If permitted to take Justice again this year if Republican candidates con- hostility toward women’s reproductive free- O’Connor’s seat on the High Court, Judge tinue to promote extremist views. We pledge dom, NARAL Pro-Choice America must op- Alito would have the power to advance his to continue our mission to promote common

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00012 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.011 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S157 sense solutions to help lessen the incidence the nomination of Samuel Alito to the tor of the New Jersey Office of Legisla- of abortion while ensuring that women and United States Supreme Court. tive Services. families maintain the safe and legal right to Sincerely, Judge Alito excelled at his studies. choose. We will no longer stand by while VICKI A. SAPORTA, He received degrees from two Ivy women’s rights are used as a political soap- President and CEO. box for either party. League institutions. But I sense—I cer- The PRESIDING OFFICER (Mr. EN- tainly picked this up in my meeting SIGN). The Senator from Alaska is rec- with him—that Judge Alito is not one NATIONAL ABORTION FEDERATION, to forget where he came from or forget Washington, DC, January 9, 2006. ognized. Senator ARLEN SPECTER, Ms. MURKOWSKI. Mr. President, I his modest roots. Chairman, Committee on the Judiciary, Dirksen rise this morning in support of the His testimony in the hearings was Senate Office Building, Washington, DC. nomination of Samuel Alito to the po- unassuming, unpretentious. He Senator PATRICK LEAHY, sition of Associate Justice of the U.S. thoughtfully listened, and I believe sin- Ranking Minority Member, Committee on the Supreme Court. I have had an oppor- cerely responded, to the committee’s Judiciary, Dirksen Senate Office Building, tunity over the past couple of days, questions, recognizing that there are Washington, DC. and certainly in this past hour, sitting certain limitations in terms of pre- DEAR CHAIRMAN SPECTER AND SENATOR in the chair as you are, Mr. President, dicting outcomes or sticking to the LEAHY: On behalf of the National Abortion to listen to the discussions on both issues that might be before the Court Federation and our members, I am writing to sides of the aisle about the nominee be- should he be confirmed. express our opposition to the nomination of fore us, Judge Alito. I have been listen- By all accounts, including those of Judge Samuel A. Alito to the United States Supreme Court. If confirmed, Alito would ing very carefully to the comments many Democrats who have served with shift the Court to the right and would be a that have been made and the discussion him, Judge Alito scrupulously lets the vote to overturn Roe v. Wade, thereby jeop- of certain issues. But when it comes to facts and the law—the facts and the ardizing women’s lives and health. the issue of Judge Alito’s credentials, I law, not the politics—dictate his deci- Alito has made no secret of his opposition do not hear a debate about them. I do sions. to abortion and a woman’s constitutional not hear a hue and cry that this is a What struck me during the nomina- right to privacy. Alito has argued that the man who does not have the credentials tion process in the hearing was the tes- ‘‘Constitution does not protect abortion,’’ to serve in the U.S. Supreme Court. I timony of so many of his colleagues— and has touted his work to overturn Roe v. believe, and I believe many of my col- and not just Republican colleagues but Wade as an early highlight of his career. Al- leagues would agree, that Judge Alito’s a wide range of individuals, self-pro- though some have tried to downplay these credentials are exemplary. No Presi- fessed liberals, and conservatives—who statements as evidence only of an advocate applying for a job, Alito was not merely ex- dent should be denied the prerogative all spoke very highly of and who ac- pressing his personal views or advocating for of appointing a person who is as quali- claimed Judge Alito. a client. Instead, Alito was offering his own fied as Judge Alito to the Court. I would like to mention a couple of legal philosophy and legal opinion that the Judge Alito, after 3 very long days of the comments that were made in the Constitution does not protect the right to responding to over 700 questions, course of the testimony. The testimony choose. emerged from these nomination hear- of the Third Circuit Court’s senior Additionally, Alito has actively volun- ings the same person who many of us judge, Judge Aldisert, had this about teered to work on cases arguing for a rever- who met with him understood him to Judge Alito: sal of Roe v. Wade. For example, Alito volun- be—quite simply, a seasoned jurist who We who have heard his probing questions teered to draft the legal strategy and frame- has the intellect, the temperament, during oral arguments, of being privy to his work for the government’s brief in and the reverence for the law which is wise insightful comments in our private con- Thornburgh v. American College of Obstetri- required for service on the Nation’s ferences; we who have observed at firsthand cians and Gynecologists. In that case, the his impartial approach to decision-making government’s brief sought to mitigate the ef- highest Court. So it is not surprising that Judge Alito has received the and his thoughtful judicial temperament and fects of Roe for the short term while launch- know his carefully crafted opinions; we—who ing a ‘‘back-door assault’’ on Roe for the American Bar Association’s highest are his colleagues—are convinced that he long term. Alito’s work on the brief was rating for any nominee. It was a unani- will also be a great Justice. deemed ‘‘instrumental’’ by one of his col- mous ‘‘well qualified’’ rating. Here is another statement from one leagues and central to the drafting of the For those who are not familiar with of his colleagues, from Judge Edward brief. how the American Bar Association Becker, who serves on the Third Cir- Judge Alito’s hostility to Roe v. Wade is scores or does the rating of the judges, cuit, and who sat with Judge Alito on not only evident from his tenure as a govern- the criteria that are looked to are cri- over 1,000 cases. He described the judge ment lawyer, but also from his work as a teria such as the judicial qualifica- as: judge on the U.S. Court of Appeals for the tions—the resume, the credentials; Third Circuit. While serving on that court, whether or not the individuals have Brilliant . . . highly analytical, and metic- Judge Alito supported restricting access to ulous and careful . . . The Sam Alito that I abortion and limiting the right to privacy in presented themselves or conducted have sat with for fifteen years is not an ideo- Planned Parenthood v. Casey. His opinion on themselves free from bias, operating in logue. He is not a movement person. He is a spousal notification was ultimately rejected a fair and impartial manner as a fair real judge, deciding each case on the facts by the Supreme Court. In the 2000 case, and impartial decisionmaker; and also and the law, not on his personal views what- Planned Parenthood of Central New Jersey looking to judicial temperament. ever they may be. He scrupulously adheres v. Farmer, Alito refused to join the majority The bar association, through its rat- to precedent. opinion in striking down a ban on abortion ing process, couldn’t keep a scorecard Still another colleague, Judge Leon- because it lacked an exception to protect as to whether the individual has ruled ard Garth, described him as ‘‘an intel- women’s health. Instead, he wrote his own opinion making clear he joined the decision more times in favor of the big guy over lectually gifted and morally principled only because he was required to follow the the little guy. It is a process where judge . . . he will always vote in ac- Supreme Court precedent of Stenberg v. truly judicial temperament, the quali- cordance with the Constitution and Carhart, a case he no longer would be re- fication, the credentials, and the free- laws as enacted by Congress.’’ quired to follow as a Supreme Court justice. from-bias and fair decision-making, is I believe these qualities are critical; Rather than nominating a moderate, con- the criteria that is looked at. for when Judge Alito is confirmed, as I sensus candidate to the Supreme Court, We have heard over the course of believe he will be, he will have giant President Bush chose to bow to the pressures days and in the committee hearings shoes to fill. The legacy that Justice and demands of his far-right base and nomi- about Samuel Alito’s background. He Sandra Day O’Connor will leave is one nate Samuel Alito, a jurist whose judicial has a very moving and a very American of fair-mindedness, open-mindedness, philosophy is clearly out of the mainstream. personal story. Born to immigrant par- and lack of an ideological agenda. Jus- The fact that the President chose such an ex- ents, Judge Alito is probably the first treme candidate to replace Justice O’Connor, tice O’Connor once described her ap- who cast the swing vote in many reproduc- one to say that the person he admires proach to cases in this way: tive rights cases, is unacceptable. For these most is his father—his father who bat- It cannot be too often stated that the reasons, the National Abortion Federation tled barriers of prejudice until he be- greatest threats our constitutional freedom calls on the United States Senate to defeat came both a teacher and the first direc- comes in times of crisis . . . The only way

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00013 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.013 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S158 CONGRESSIONAL RECORD — SENATE January 26, 2006 for judges to mediate these conflicting im- for his appointment as Associate Jus- Judge Alito then attended Yale Law pulses is to do what they should do anyway: tice of the Supreme Court. This is the School where he served as an editor of stay close to the record in each case that ap- highest rating that can be given to a the Yale Law Journal. pears before them, and make their judg- judicial nominee. Given Judge Alito’s Since his start as a young lawyer, ments based on that alone. performance at the hearings and the Judge Alito has shown a commitment Based on my conversations with strong support for his nomination, no to public service in the Jeffersonian Judge Alito, his testimony before the one should be surprised by this top ideal of the citizen-lawyer. Judge Alito committee, and the statements of so ABA rating. served as a law clerk to Judge Leonard many of his colleagues who know his I enthusiastically endorse and sup- Garth of the U.S. Court of Appeals for work best, I am confident that Judge port Judge Alito’s nomination. I be- the Third Circuit. After completing his Alito will have that open- and fair- lieve he will bring a solid base of legal clerkship, Judge Alito began his legal mindedness. He told the Judiciary and judicial experience to the Court. career as an Assistant U.S. Attorney Committee: The President has chosen wisely, and I briefing and arguing cases before the Good judges are always open to the possi- encourage my Senate colleagues to Third Circuit. I hope that Judge Alito’s bility of changing their minds . . . Result- join me in voting for this exceptional commitment to public service is noted oriented jurisprudence is never justified be- nominee. by law students and young lawyers cause it is not our job as judges to try to Mr. VOINOVICH. Mr. President, I around the country as they think produce particular results. rise today to urge my colleagues to about their career choices. Judge In his opening statement, Judge vote to confirm Judge Samuel A. Alito, Alito’s experience stands as a model of Alito recalled the oath that he made at Jr., as an Associate Justice of the U.S. public service and has led him to the the time he was sworn as a judge of the Supreme Court. opportunity to obtain one of the high- court of appeals. He stated that he Before I discuss my reasons for sup- est honors a lawyer can hope to would ‘‘administer justice equally, porting Judge Alito, I would like to achieve, a chance to serve his country both to the rich and the poor’’ and that make a few remarks about the judicial as an Associate Justice of the U.S. Su- he would ‘‘carry out the laws and the confirmation process. Judge Alito is preme Court. Constitution’’ to the best of his ability. the second nominee to the Supreme In 1987, Judge Alito was nominated I believe Samuel Alito has done that Court since I was elected to the Senate. and approved by unanimous consent as for nearly two decades as a Federal I have been pleased with how his nomi- the U.S. attorney for the District of judge. I will certainly look to him to nation has been handled by both the New Jersey. As U.S. attorney, Judge do that in his new role—again, without White House and the Judiciary Com- Alito prosecuted a wide variety of agenda, without prejudgment, without mittee. cases, including those involving white bias. I wish to compliment Senator SPEC- collar and environmental crimes, drug I join many of my colleagues on the TER and Senator LEAHY for the excel- trafficking, organized crime, and viola- Senate floor this morning in sup- lent job they have done in handling the tions of civil rights. Judge Alito’s ex- porting the nomination of Judge Sam- confirmation hearings for Judge Alito. tensive experience as a Federal pros- uel Alito to the U.S. Supreme Court. The hearings were fair and orderly. ecutor will add a unique perspective to I yield the floor. These hearings gave the country an im- the Court’s decisionmaking process. Mr. HAGEL. Mr. President. I rise to portant opportunity to see what type In 1990, Judge Alito was unanimously announce my intention to vote in favor of person Judge Alito is: one with a confirmed by the Senate to serve on of Judge Samuel A. Alito’s nomination long history of service to his country the U.S. Court of Appeals for the Third to be an Associate Justice of the Su- and with a true love of the law. As was Circuit. Throughout his 15 years as a preme Court of the United States. the case with the confirmation hear- judge on the Third Circuit, Judge Alito The Senate Judiciary Committee and ings for Chief Justice Roberts, the ‘‘ad- has developed a reputation as a me- others have thoroughly scrutinized his vice and consent’’ process gave the thodical, gracious, even-tempered ju- background and credentials. Hundreds country a valuable lesson in constitu- rist with a history of fairness for all of documents and memos he produced tional law, showing that each branch of who appear before him. Judge Alito is as a lawyer have been reviewed, along Government plays a valuable role in also known for producing well-written with hundreds of judicial opinions he our democracy. and well-reasoned opinions. His 15 authored or participated in during his The President has nominated another years on the Third Circuit give Judge 15 years as a Federal court of appeals fine candidate to the Supreme Court. Alito a unique and seasoned perspec- judge. Those documents have revealed History will look back on the nomina- tive on, and appreciation for, the a strong intelligence and a deep respect tion of Judge Alito, combined with courts. for the law and the Constitution. President Bush’s nomination of Chief His impressive educational and pro- Earlier this month, the Judiciary Justice Roberts, as one of the most im- fessional background makes Judge Committee held several days of hear- portant legacies of the Bush adminis- Alito well prepared to be an Associate ings on Judge Alito’s nomination. Ev- tration. Justice of the Supreme Court. As he erything in those hearings reinforced A Supreme Court nominee must have displayed during his confirmation my impressions of Judge Alito from my two qualities. First, a nominee must hearings, he has an encyclopedic meeting with him in November. He was have an exceptional intellect. Second, knowledge of the Supreme Court and of forthcoming during the committee a nominee must be committed to the constitutional law. Yet he also has di- members’ questioning, candidly an- rule of law. I am very pleased to say verse, real-world experience in govern- swering hundreds of questions regard- that based on everything I have seen ment and in how law interacts with the ing specific cases, the law, and his judi- and heard, Judge Alito has dem- actual day-to-day operation of govern- cial philosophy. His judicious tempera- onstrated both of these qualities. ment. Judge Alito has the ideal bal- ment during the hearings was appar- It is difficult to see how Judge Alito ance of academic and practical experi- ent. could have more impressive profes- ence. During the hearings, I was also im- sional credentials. From his academic Given his professional achievements, pressed by the comments of seven cur- record to his almost 30 years in govern- it is not surprising that the American rent and former Third Circuit Court of ment service, including 15 years on the Bar Association has given Judge Alito Appeals judges. They testified in sup- U.S. Court of Appeals for the Third Cir- its highest rating. Mr. Stephen L. port of Judge Alito’s nomination to the cuit, Judge Alito has accumulated a re- Tober, the chairman of the American Supreme Court. This support by the in- markable record of achievement. Bar Association’s Standing Committee dividuals most familiar with Judge As my colleagues have previously on the Federal Judiciary, noted in his Alito’s skills and judgments carries noted, Judge Alito graduated from statement, the ABA unanimously con- great weight. Princeton University, was elected to cluded that Judge Alito is ‘‘well quali- Finally, last month, the American Phi Beta Kappa, and was selected as a fied’’ to serve as Associate Justice on Bar Association unanimously rated Scholar of the Woodrow Wilson School the U.S. Supreme Court. The ABA Judge Samuel Alito as ‘‘well qualified’’ of Public and International Affairs. noted that ‘‘[Judge Alito’s] integrity,

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00014 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.014 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S159 professional competence, and judicial to a particular school of thought or Alito is eminently qualified to serve on temperament are indeed found to be of being a follower of a particular thinker the Supreme Court. It would be truly the highest standing. Judge Alito is an or politician. This is unfortunate as unfortunate if we allow this nomina- individual who, we believe, sees maj- each nominee’s character gets over- tion to fall victim to the partisanship esty in the law, respects it, and re- looked and we fail to see this impor- that has been growing in the Senate. mains a dedicated student of it to this tant aspect of each nominee. It is, how- I, therefore, urge my colleagues to day.’’ ever, a nominee’s character that can support the nomination of Judge Alito Judge Alito has shown a commit- have the biggest impact on his or her to be the next Associate Justice of the ment to the rule of law. Now, no two work. Supreme Court. people will agree on how to interpret In Judge Alito, I believe the Senate The PRESIDING OFFICER. The Sen- every provision of the Constitution or has before it not only a nominee who ator from Oklahoma is recognized. of every statute. Nevertheless, Judge has the capability to be a great Asso- Mr. COBURN. Mr. President, as a Alito’s statement that ‘‘there is noth- ciate Justice but also a nominee who is member of the majority and sitting as ing that is more important for our re- simply a wonderful person. the President of the Senate yesterday, public than the rule of law’’ is an im- I share Judge Alito’s appreciation of I was able to hear several hours of de- portant testament to his commitment the great and wonderful opportunities bate on the nomination of Judge Sam to ensuring that the rule of law, and for all Americans. I was moved by Alito, Jr. not individual preferences of Justices, Judge Alito’s sentiments about his fa- I heard time and again dire pre- remains supreme. It is essential that ther, as he recalled how a ‘‘small good dictions that Judge Alito is going to any nominee displays a conscious com- deed’’ from a local Trenton area person give the executive branch complete au- mitment to deciding cases based on the allowed his father the chance to attend thority over our Government, includ- law, rather than on his or her own per- college and how this act of kindness ing himself on the Supreme Court. sonal views. eventually led to Judge Alito’s pres- Those who oppose him never mentioned During Judge Alito’s confirmation ence before the U.S. Senate. I can re- one single case where Judge Alito ruled hearings, I was struck by how dedi- late to the story of Judge Alito’s father in favor of the President or expanded cated he is to the law and to correctly because my own father was strongly in- Executive power—not once. They think applying the law as a judge. As Judge fluenced by his high school principal if they just keep repeating the same Alito noted, ‘‘The judiciary has to pro- and a history teacher to stay in school far-left smear—one dreamt up by far- tect rights, and it should be vigorous in rather than take a laborer’s job. With left groups such as Ralph Neas’ People doing that, and it should be vigorous in the strong encouragement from these for the American Way and Nan Aron’s enforcing the law and in interpreting two individuals, my father completed Alliance for Justice—the American the law . . . in accordance with what it high school and attended Carnegie people will fall for it. really means and enforcing the law Tech on a Kroger’s Scholarship. Such It is disturbing to me that those who even if that’s unpopular.’’ He went on stories are familiar to many descend- oppose Sam Alito are taking their cues to state, ‘‘A judge can’t have any agen- ants of immigrants and they show that from people such as Nan Aron and the da. A judge can’t have any preferred the American Dream is still alive and Alliance for Justice who, even before outcome in any particular case. And a well. the hearings began, before we had any judge certainly doesn’t have a client. During my meeting with Judge Alito, hearings whatsoever, bragged, ‘‘You The judge’s only obligation—and it’s a he displayed a gracious manner and name it, we’ll do it,’’ to sink Judge solemn obligation—is to the rule of humble attitude. He is clearly very Alito. law, and what that means is that in smart and engaging, and it was a pleas- I think the American people and every single case, the judge has to do ure to hear him explain his view of the their elected representatives would what the law requires.’’ Supreme Court and the rule of law. But rather base their views on the lawyers I observed Judge Alito’s demeanor he is also a very openminded person and judges from across the political and conduct during this confirmation who listens to others with sincerity spectrum who had actually known process, as he refused to abandon his and a willingness to hear their views. Judge Alito. judicial independence for the sake of For such a brilliant and successful per- Former Third Circuit Judge Gibbons political expediency. As Judge Alito son, I did not detect a hint of arro- explained his faith in Judge Alito’s noted, ‘‘We shouldn’t decide those gance. He is a dedicated family man ability to fairly judge cases in which questions, even in our own minds, with a good sense of humor whom I be- the government is asserting its execu- without going through the whole proc- lieve all Americans will be able to re- tive power. He said: ‘‘The committee ess. If we announce—if a judge or a ju- spect and admire. members should not think for a mo- dicial nominee announced before even I have also been pleased to hear that ment that I support Judge Alito’s nom- reading the briefs or getting the case my impressions of Judge Alito have ination because I am a dedicated de- or hearing the argument what he or been echoed by so many others during fender of that administration. On the she thought about the ultimate legal the hearings. I point particularly to contrary, I and my firm have been liti- issue, all of that would be rendered the testimony of Professor Nora gating with that administration for a meaningless, and people would lose all Demleitner, a self-professed ‘‘left-lean- number of years over its treatment of their respect for the judicial system, ing Democrat,’’ who served as a law detainees held at Guantanamo Bay, and with justification, because that is clerk with Judge Alito after grad- Cuba, and elsewhere, and we are cer- not the way in which members of the uating from Yale Law School. Pro- tainly chagrined at the position that is judiciary are supposed to go about the fessor Demleitner described Judge being taken by the administration with work of deciding cases.’’ Alito as ‘‘a man of great integrity, de- respect to those detainees. I am con- Accordingly, I have every confidence cency and character.’’ Professor fident, however, that as an able legal that parties who appear before Judge Demleitner also noted that Judge Alito scholar and a fair-minded justice, he Alito will encounter a judge who is is one of her role models and that he will give the arguments, legal and fac- committed to viewing each case with- has one of the most brilliant legal tual, that may be presented on behalf out bias and to reaching a decision minds of our generation. of our clients careful and thoughtful that is dictated by the rule of law In short, Judge Alito displays the consideration without any predisposi- alone. openmindedness, humility and commit- tion in favor of the position of the ex- Finally, I want to offer some per- ment to serving the public interest ecutive branch.’’ sonal observations about Judge Alito. that should serve as the paradigm of Defense lawyers who litigated Too often we view executive and judi- judicial temperament for members of against Judge Alito confirm that when cial nominees through political or ide- our highest Court. Judge Alito was part of the executive ological glasses and not as human In reviewing Judge Alito’s academic branch, he had a modest view of its beings. Nominees quickly get labeled and professional record, his firm com- power. as being a ‘‘Republican nominee’’ or a mitment to the rule of law, and his The New York Times reported that ‘‘Democratic Nominee’’ or as belonging strong character, it is clear that Judge one defense attorney, Dan Ruhnke,

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00015 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.072 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S160 CONGRESSIONAL RECORD — SENATE January 26, 2006 said that Judge Alito lacked the ‘‘cop Those who know him, those who tes- need a court that will hold us true to these mentality’’ of many career prosecutors tified, of all stripes, of all political per- guiding principles today and into the future. and was ‘‘never a cheerleader for law suasions, would and are challenging But he did not mean ‘‘all,’’ he meant enforcement.’’ what we have been hearing on the floor all those except the truly innocent and Another defense attorney, Drew by those who oppose him—the truly weak, the preborn child. Behind Barry, said that Judge Alito was ‘‘not mischaracterization of his rulings, the me are two pictures, one of a 26-week- a bloodthirsty United States attor- mischaracterization of his beliefs, the old preterm infant in a neonatal IC ney,’’ and that he was ‘‘a vigorous pros- mischaracterization of his actions. unit, smaller than your hand; and the ecutor who went after a wide variety of What I also observed, which concerns other picture is of a 26-week preborn bad guys, but his reputation was not me even more, was that those who child’s face seen by ultrasound. someone who would ask for the heavi- don’t know him but have a political The Declaration of Independence est sentences.’’ agenda to keep the Court activist and states: As a member of the Judiciary Com- beyond its constitutional bounds op- We hold these truths to be self-evident, mittee and in my time in the Senate, pose him. They do not know him. But that all Men are created equal, that they are this is a sorrowful time for me. what they do know is judicial activism, endowed by their Creator with certain in- The politics of personal destruction making law where none exits, which alienable Rights, that among these are Life, were all too evident in the Senate hear- they put before a judiciary committed Liberty and the Pursuit of Happiness . . . ing and continue on the floor of this to equal justice under the law. So, America, ask yourself, how did body. That is why he is being opposed. we get to the point that the accidental The ‘‘guilt by association’’ standard Their greatest fear is the Court will re- killing of a 26-week unborn infant is a of those who oppose Sam Alito would turn to a place where the Constitution, felony but taking of that same life by disqualify anybody who would be nomi- the statutes, and treaties are inter- abortionists is legal? It is schizo- nated no matter who the President is. preted, but personal political agendas phrenic. Why should your liberty be The idea that politics guides the Su- are left at the door. based on your location inside the womb preme Court nominations process in They fear the battles lost in the leg- or out? the Senate is new. The idea of the ‘‘re- islatures will no longer be carried out The Court’s jurisprudence on liberty sults only in my eyes qualification’’ by judicial fiat. The former Soviet and privacy interests is fundamentally proves that those who challenge the in- Union is the great example. They had a flawed. They fear a correction in that tegrity of Sam Alito require standards constitution but there was not equal flaw. that they themselves could never live justice under that constitution. To quote Robbie George of Princeton up to. During Chief Justice Roberts’ open- University: To be critical is fair to the process of ing statement to the Judiciary Com- On what constitutional basis can we say confirmation, but destruction and ab- mittee, he referenced the fact that the that abortion is protected by ‘‘due process’’ solute mischaracterization of one’s most powerful entity in the world, the but a right to assisted suicide . . . is not? record the way we have seen reaffirms U.S. Government, deferred to the rule Why is sodomy protected and prostitution the lack of fairness and conscience of of law when the Court was convinced unprotected? Why does the right to privacy those who carry out such tactics. that a private client was right on the not extend to polygamy or the use of rec- reational drugs? As a member of the Judiciary Com- law and the Government was not. He mittee, I spent 4 days listening, ques- referenced President Reagan’s speeches That is the kind of justice you have tioning, and watching—not only Sam about the Soviet Constitution and how when you are a nation of judges and Alito but all those who came to testify it purported to grant wonderful rights not law. Hopefully, someone of Sam for him and those who came to testify of all sorts to people, but those rights Alito’s character can steer the ship against him. were empty promises because that sys- back to liberty for all, including the Here is what I observed—not as a tem did not have an independent judi- weakest and most innocent of all. Sam lawyer, not as a Senator, but as a phy- ciary to uphold the rule of law and en- Alito was sold out to this document, sician trained in the art of observation force those rights. Roberts concluded: the U.S. Constitution. He sold out to and the art of listening. We do, because of the wisdom of our found- equal justice under the law. We need to Sam Alito is a man of high moral ers and the sacrifices of our heroes over the speak truthfully about the opposition character. You do not hear the direct generations to make their vision a reality. to him. We need to speak truthfully words challenging that, but you hear Under our law, the mighty can be de- about the problems that have been cre- everything indirectly. feated by the meager. ated by an activist Court, and about He is also a man of intellectual bril- We heard yesterday the philosophy of the opposition to bring back and steer liance, impressing everyone who comes those who oppose this great jurist. Let the ship to where the judges make in contact with him. me quote it exactly because it is very judgment based on the Constitution, He is a man of dedication to the law, dangerous. This quote is from the Sen- laws, and the treaties of this country, to equal justice under the law. ator from Rhode Island: not their political philosophies. He is a man who has shown dedicated . . . in truth the Supreme Court is the Con- I yield the floor and suggest the ab- commitment to the things that are im- stitution. sence of a quorum. portant in our country. If that is so, we are no longer a na- The PRESIDING OFFICER. The He is a man who is completely sold tion of laws but rather a nation of clerk will call the roll. out to one thing, and one thing only: judges. That is not America. That is The legislative clerk proceeded to His record and his life has dem- not freedom. That creates nine kings, call the roll. onstrated equal justice under the law. the exact opposite of what our Found- Mr. TALENT. Mr. President, I ask What I also observed was a great di- ers intended. That is the very thing the unanimous consent that the order for versity of political background of those American people rejected in the elec- the quorum call be rescinded. who support him, those who know him, tion of 2004. It was about judges. The PRESIDING OFFICER. Without those who have worked with him for Finally, let’s talk about the real objection, it is so ordered. the last 15 years, regardless of their po- issue that will cause most people to op- Mr. TALENT. Mr. President, it is a litical views, either liberal or conserv- pose him. They fear he may truly be- privilege for me to spend a few minutes ative, regardless of their gender or lieve in liberty for all. That is their visiting with the Senate about Judge their color, regardless of their view on fear. Let me explain. Senator KENNEDY Alito. Based on my study of his record abortion. had a very eloquent quote during the and my discussions with him, I believe, Those who know him uniformly sup- hearing. I would like to repeat it: if confirmed, he will turn out to be one port him as a great jurist, a man of in- of our best Supreme Court Justices. America is noblest when it is just to all of tegrity and conscience, and one who is its citizens in equal measure. America is I do not know that anybody on the completely sold out to the idea that ev- freest when the rights and liberties of all are floor has contested his professional eryone in this country has equality respected. America is strongest when we can qualifications. He is certainly excep- under the law. all share fairly in its prosperity. And we tionally qualified, at least based on

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00016 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.007 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S161 that, to serve on the Nation’s highest serve the United States. Those are the Because of this respect for the rule of Court. He has the experience, the tem- right reasons to want to be on the Su- law, the individuals who know Judge perament, and integrity that America preme Court. Alito best—and that includes Repub- expects in a Supreme Court Justice. I made a point on other occasions licans and Democrats, his colleagues Judge Alito has more prior judicial about judicial nominations that I on the bar and on the bench—have experience than any Supreme Court think is relevant here. It is, in a way, overwhelmingly supported his ele- nominee in more than 70 years. He has misleading to talk about a judicial vation to the Supreme Court. I think it served for 15 years as a judge on the nominee being in or out of the main- is important, when you look at nomi- Court of Appeals for the Third Circuit. stream of American jurisprudence be- nees, to make certain they have sup- He participated in the decisions of cause the truth is there is more than port from people from all parts of the more than 1,500 Federal appeals. He one mainstream. Lawyers are divided political spectrum and all parts of the wrote more than 350 opinions. I think over which jurisprudential theory jurisprudential spectrum. his clerks probably have to work pret- ought to guide judges in interpreting Let me quote a couple people. ty hard, he has been so busy. This is the statutes and in interpreting the Nora Demleitner is the vice dean for why I wonder why some people say Constitution. Just as we in the Senate academic affairs and professor of law they do not know enough about what disagree, legitimately, about political at Hofstra University School of Law. he might do. I do not know how any philosophy, lawyers also disagree about And to this point I have not cited any- judge, how any candidate could qualify jurisprudential philosophy. body from Missouri supporting Judge on that basis, if Judge Alito does not. Oftentimes, there is not any one Alito, but I am going to vote for him He served as the top Federal pros- completely correct answer when you anyway. She said: are interpreting a vague provision of ecutor in one of the Nation’s largest Now, since the very early days of my clerk- Federal districts. He was an appellate the Constitution, but that does not ship, I must admit that Judge Alito has real- advocate for the United States in the mean there are no incorrect answers. ly become my role model. I do think he is Because reasonable people looking at Office of Solicitor General. He was a one of the most brilliant legal minds of our the history and the text of the docu- Deputy Assistant Attorney General in generation, or of his generation, and he is a ment might disagree as to what is ex- man of great decency, integrity and char- the Office of Legal Counsel. He re- actly the right answer in a given case acter. And I say all of this as what I would ceived his bachelor’s degree from does not mean there are no wrong an- consider to be a left-leaning Democrat; a Princeton. I would not hold that swers. And a wrong answer, as Judge woman, obviously; a member of the ACLU; against him. He was elected Phi Beta Alito said so clearly in his introduc- and an immigrant. Kappa at the time. He went to Yale tory remarks before the Judiciary This is Dean Demleitner speaking. Law School, where he served as an edi- Committee and throughout his testi- In addition, Judge Aldisert, who has tor on the Yale Law Journal. That is mony, is an answer that does not re- served with Judge Alito on the Third quite a record. spect the rule of law. Circuit, had the following to say: During last week’s hearing, Judge Here is what Judge Alito said: In May 1960, I campaigned with John F. Alito answered over 700 questions for The judge’s only obligation—and it’s a sol- Kennedy in the critical Presidential pri- more than 18 hours. He was thoughtful emn obligation—is to the rule of law, and maries of West Virginia. The next year, I ran and thorough in answering the tough what that means is that in every single case, for judge . . . and I was on the Democratic questions. He was humble throughout the judge has to do what the law requires. ticket, and I served eight years as a State trial judge. As the Chairman indicated, Sen- the process, which is something I per- A wrong answer is one that is based ator Joseph Clark of Pennsylvania was my sonally look for when considering any- on an idea of the judicial role that al- chief sponsor when President Lyndon John- body who is seeking a life appointment lows the judge to do whatever he or she son nominated me to the Court of Appeals, and particularly a judicial appoint- thinks they would want to do if they and Senator Robert F. Kennedy from New ment. I think a big dose of ‘‘humble’’ is were in control of the policy involved York was one of my key supporters. Now, important if you want to be a judge be- in an issue. Whatever their theory of why do I say this? I make this as a point cause you are in the position, as a interpreting the Constitution is, they that political loyalties become irrelevant judge, to be rude to people and they when I became a judge. The same has been should be consistent in applying it. true in the case of Judge Alito, who served cannot be rude back to you. I think Judges should not work for a par- honorably in two Republican administra- you ought to have a temperament ticular outcome or agenda. tions before he was appointed to our court. where you are not tempted to do that. Here is what Judge Alito said on this Judicial independence is simply incompat- What does the record and the process issue: ible with political loyalties, and Judge reveal about this nominee? Simply Results-oriented jurisprudence is never Alito’s judicial record on our court bears that he is one of the finest nominees justified because it is not our job to try to witness to this fundamental truth. ever to come before the Senate. We produce particular results. We are not policy I could go on with other quotes. I am learned a lot about him as a person makers and we shouldn’t be implementing not going to. I suppose everything real- any sort of policy agenda or policy pref- during this process as well. He is cer- erences that we have. ly has been said about Judge Alito in tainly brilliant and hard working. He the Senate, although not everybody As Chief Justice Roberts said when went before the Judiciary Committee said it, so the debate is going to go on he was testifying before the Judiciary without a note. He is a man of integ- for a while. But I do think the first and Committee: Judges are umpires. They rity. He is honest. He is devoted to his are not the rule-makers. The people are most basic right we all have as polit- family. These are all qualities we want the rulemakers, through their rep- ical actors—in the sense that every in the men and women who serve our resentatives, in their laws and in their person who lives in this country shares Nation on the high Court. These are Constitution. in running the Government—the first the kinds of qualities that will move In another statement Judge Alito and most basic right we have is the America forward and move the judicial said: right to govern ourselves through the branch forward. I don’t think a judge should be keeping a processes set up in our Constitution. It He has proven beyond any doubt that scorecard about how many times the judge is not out of a desire to avoid difficult he has the qualifications, the tempera- votes for one category of litigant versus an- decisions but out of a respect for that ment, the knowledge, and the under- other in particular types of cases. That right that Judge Alito talked about the standing of the Constitution to serve would be wrong. We are supposed to do jus- rule of law. on the United States Supreme Court. I tice on an individual basis in the cases that I want to say this. Whether your do not know how you can prove it, if he come before us. But I think that if anybody views about social policy are on the . . . looks at the cases that I have voted on has not proven it. I would imagine even in any of the categories of cases that have right side of the political spectrum or those who are going to oppose his nom- been cited, they will see that there are deci- whether they are on the left side of the ination for other reasons would agree sions on both sides. political spectrum, I believe we can all he has the right kind of temperament He went on to say: rest easily in leaving the development and qualifications. He wants to be on In every type of employment discrimina- of our culture and our society to the the Court because he loves the law. tion case, for example, there are decisions on wisdom and the decency of the Amer- And he is a judge because he wants to both sides. ican people. The center in this country

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00017 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.018 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S162 CONGRESSIONAL RECORD — SENATE January 26, 2006 has held in the past, and it will hold in time in the Senate. I have studied the nority side, he maintained his the future. qualifications and legal writings of all composure in an unfortunately par- As President Franklin Roosevelt nominees to see whether they possess a tisan atmosphere. said: This Nation will endure as it has consistent and well-grounded judicial As I said at the beginning, those cre- endured, and not because of the courts, philosophy and have the right creden- dentials and qualifications, that legal not because of the Congress, not be- tials and qualifications. background is the first important mat- cause of the President but because of I was very upfront about being mind- ter I look to. But it is not the only the people. They will move us in an or- ful of that responsibility when Harriet matter. The second equally important derly and decent direction, as they Miers was nominated. I looked very matter I look to is a person’s judicial have for 200 years. We do not need to be carefully at her qualifications and her philosophy. Do they understand the governed by guardians or dictators, judicial philosophy and, quite frankly, correct role of a judge in society? I whether they are in the form of judges I expressed some real reservations have thought a lot about that regard- or anybody else. That is what Judge about that. ing all nominees who have come before Alito meant when he was talking about That is why, after Judge Alito was this body. I thought Judge Roberts ex- the rule of law. nominated, I focused on those quali- pressed that role precisely right when I have said from the beginning of this fications and that judicial philosophy he talked about being an umpire and debate—and I withheld my decision just as hard. I met him personally. I not a pitcher or a batter. Judge Alito about the judge until I had a chance to watched his confirmation hearings. I has that same view of the appropriate meet him and watch the hearings and read his record. That is the process I role of a judge. get a feel for who he is—he deserved a used to reach this conclusion, that, No. Throughout the debate over judicial fair and respectful confirmation proc- 1, he is eminently qualified in terms of nominees, this notion of whether a ess, ending in a timely up-or-down vote credentials and background, and, No. 2, nominee possesses the right judicial on the Senate floor. I hope he will re- he has the right judicial philosophy, philosophy has been asked a lot. Some ceive that. I believe, if confirmed, he the right view of the role of a judge in may ask what this term means and will respect the Constitution, he will our society. why it is important. Again, it is impor- apply a consistent jurisprudence, with- Let’s talk, first, about those basic tant because it goes to the heart of the out imposing his personal views on the legal qualifications. Again, Judge Alito role of a judge and how this democracy law. For that reason, I am pleased to is superbly qualified. His academic works. I believe what it means is a vote to confirm Judge Alito. I am hope- achievements and his distinguished ca- commitment to the rule of law, a com- ful the full Senate will give this highly reer make that clear. mitment to the Constitution as writ- qualified nominee a fair up-or-down He has a bachelor’s degree from ten, and a commitment not to let one’s vote and then send him to service on Princeton University and a J.D. from personal political views or personal po- the U.S. Supreme Court. Yale Law School. After graduating litical leanings or prejudices enter into I thank the Chair and yield back from law school, Judge Alito began his any of those important decisions on whatever remains of my time. career in public service as a clerk for the Court. It requires a judge to be I suggest the absence of a quorum. Judge Leonard Garth on the Third Cir- openminded, to analyze the law care- The PRESIDING OFFICER. The cuit Court of Appeals and is now a col- fully, to analyze the facts of each case clerk will call the roll. league of his on that court. He served based on the Constitution and the law. The legislative clerk proceeded to as an assistant U.S. attorney, Assist- It requires a judge not to do what can call the roll. ant to the U.S. Solicitor General, Dep- be tempting—intoxicating in terms of Mr. VITTER. Mr. President, I ask uty Assistant Attorney General, and the power a judge can hold—not to unanimous consent that the order for U.S. attorney for the District of New make new law based on personal opin- the quorum call be rescinded. Jersey. He has argued specifically be- ion, not to play legislator but to follow The PRESIDING OFFICER. Without fore the U.S. Supreme Court 12 cases, the law as enacted by the Congress or objection, it is so ordered. at least two dozen court of appeals the State legislature. Mr. VITTER. Mr. President, I rise in cases; direct, relevant and impressive Judge Alito has demonstrated that support of the nomination of Judge experience in terms of that sort of right judicial philosophy. He has dem- Samuel A. Alito to be an Associate high-level litigation. onstrated his unwillingness to change Justice of the U.S. Supreme Court. I In 1990, President George H.W. Bush the law to fit his personal beliefs. He am supporting Judge Alito’s nomina- nominated Judge Alito for the Third stated clearly: tion because he is, No. 1, superbly Circuit Court of Appeals, and he was There is nothing that is more important qualified to sit on the Supreme Court, confirmed by unanimous consent in for our Republic than the rule of law. No per- and, No. 2, and as important, he pos- this body because of his strong creden- son in this country, no matter how high or sesses the right view of the role of a tials and clear and overwhelming powerful, is above the law, and no person in judge, the right judicial philosophy, qualifications. Of course, today those this country is beneath the law. which I think is essential in terms of qualifications are even greater because What is vital and embedded in the taking a seat on that high Court. he has served as a judge on that circuit concept of the rule of law is the appli- The appointments clause, article II, court for the past 15 years. cation of the law as written, not judges section 2, clause 2, of the Constitution After being nominated to the U.S. becoming kings or legislators and im- gives the President the plenary power Supreme Court, the ABA rated Judge posing their views and legislating from to nominate certain high-level officials Alito as ‘‘well qualified.’’ That is the the bench. I believe this is the second and, as important, bestows on the Sen- highest rating possible. Everyone rec- and crucial matter we must look to in ate a crucial role, a crucial constitu- ognizes the ABA is not some conserv- the confirmation of judges, particu- tional role, of advice and consent. ative political group by any stretch of larly those who would be Justices of Like, I hope, every Member of this the imagination. If its membership has the U.S. Supreme Court. I have great body, I take that constitutional duty a slant, it is probably to the left. That confidence in Judge Alito’s correct un- of advice and consent very seriously. I is the gold standard, that rating of ju- derstanding of the role of a judge. owe it as high as any duty to the Lou- dicial qualifications and credentials. It has troubled me that throughout isiana people I represent. In line with Again, Judge Alito received the highest this confirmation process, some of my that, I will neither provide a rating. colleagues and many outside interest rubberstamp of approval for all of Then he had his confirmation hear- groups, many members of the press, President Bush’s nominees nor will I ings. Despite some ugly questioning, have demonstrated a different view of automatically disapprove any Demo- frankly, and some smear tactics, in my the role of a judge. One way they have cratic President’s nominees for the Su- opinion, he had an impressive perform- demonstrated that is by treating Judge preme Court or any other Federal ance. He demonstrated clear humility Alito more akin to a candidate for po- court. and indepth understanding of legal litical office than a nominee for the I think I have shown my seriousness matters. And perhaps most impressive highest Court. They have talked about of purpose in that regard in my short in terms of what he faced from the mi- judges taking sides, being on this side

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00018 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.019 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S163 versus that side, taking the side of Sam Alito is my favorite judge to sit with American people will prove greater labor versus management, taking the on this court. He is a wonderful judge and a than any assault on the precious free- side of environmentalists versus busi- terrific human being. Sam Alito is my kind doms and liberties our forefathers ness groups, taking the side of the lit- of conservative. He is intellectually honest. fought to establish. He doesn’t have an agenda. He is not an ideo- For the officials of our Federal Gov- tle guy versus the big guy. In talking logue. in those terms, many Members of this ernment, the protection of the institu- Former Third Circuit Judge Timothy body and many liberal interest groups tions of our American democracy is a K. Lewis, an African American, testi- and many members of the press have duty that both transcends and super- fied in support of Judge Alito. He joked demonstrated a completely different sedes all others, especially for mem- that it was no coincidence he was sit- view of the role of a judge which is in- bers of the Supreme Court who must ting on ‘‘the far left’’ of the panel. He appropriate. Other than the fact that interpret the Constitution of our Na- said: many of their characterizations of tion as a living foundation for the free- Judge Alito in these terms are false— I was then—as I am now—a committed and dom and liberty of our people. active Democrat. I learned in my year with From confiding the power of the Fed- for instance, he has decided in favor of Judge Alito that his approach to judging is employment discrimination plaintiffs eral Government in three co-equal but not about personal ideology or ambition. He separate branches of government, to in 22 percent of the cases, whereas the is not result oriented. He is an honest con- national average is 13 percent—it trou- servative judge who believes in judicial re- guaranteeing the civil liberties that bles me that the public is being led to straint and judicial deference. bless our Nation, the Constitution en- believe that we should think of judges And Judge Lewis emphasized: shrines principles that are as relevant today as they were when it was first as legislators, that it should be a re- If I sensed that Sam Alito during the time sults-oriented discussion. that I served with him or since then was hos- penned centuries ago. These cherished principles are the This goes to the heart of the con- tile to civil rights as a justice of the United backbone of our Nation, and they com- firmation process. The role of the judi- States Supreme Court, I absolutely would prise the final yardstick for taking the ciary is to interpret the law and to not be here today. mettle of any man or woman who apply it to the facts of each case. It is I hope the smear tactics will end, would aspire to our Nation’s highest not to elect legislators, politicians to particularly on an issue as important Court. I have studied the full record of go on the bench and vote certain inter- and sensitive as civil rights. I am con- President Bush’s nominee, Samuel A. ests or certain political philosophies. fident the American people are hearing Alito, Jr., and carefully measured it I believe Judge Alito has the correct from those sound voices, including Af- against the sworn duties of the Su- view, the opposite view, quite frankly, rican-American voices, who have preme Court. Regretfully, I conclude as has been demonstrated by some served directly with Judge Alito, many that Judge Alito falls short. of them are politically liberal. Many of Members of this body and certainly by From his writings on the Third Cir- them are Democrats who say Judge the liberal press and liberal interest cuit Court of Appeals to his public groups. In his confirmation hearing, Alito is fair. He is impartial. He is not speeches, I discern a man who would the judge made this clear. He described results oriented. fundamentally rewrite the interpreta- That returns me to the central factor his disagreement with keeping a score- tion of our Constitution and leave in I have focused on in this process: Does card of how many times a judge rules doubt the legacy of freedom it was for or against a particular party. He Judge Alito have the right view of the meant to preserve. stated: role of a judge? Does he have the right For many, this will mean his record I don’t think a judge should be keeping a judicial philosophy? Is he committed on civil rights, reproductive choice, or scorecard about how many times that judge to the Constitution as written, to the the death penalty. Let there be no mis- votes for one category of litigant versus an- rule of law as it is written not by him take, I share these concerns, and I have other in particular types of cases. That but by legislatures and the Congress? spent my life fighting for these rights. would be wrong. We are supposed to do jus- Is he committed to that and is he com- For me, however, the greatest area of tice on an individual basis in the cases that mitted to not legislating from the come before us. doubt lies in Judge Alito’s consistent bench? I believe his record and testi- preference for expanding the power of I wish to touch on one other specific mony and all of the evidence supports the President by relaxing the checks type of case because I believe Judge a firm conclusion that he is committed and balances the Constitution places Alito has been smeared in this cat- to that proper role of a judge. For that on the executive branch of Govern- egory, and that is with regard to his reason, I am proud to be supporting the ment. strong record and experience in the nomination of Judge Samuel Alito. I In 1989 and 2000, Judge Alito gave area of civil rights. I have been dis- am confident he will serve as a very speeches to the Federalist Society in appointed that some of my Democratic distinguished member of the Supreme which he embraced an obscure legal colleagues have chosen to paint Judge Court. doctrine called the ‘‘unitary executive Alito as having anything less than the I yield the floor and suggest the ab- theory.’’ This so-called ‘‘unitary execu- stellar record on civil rights that he sence of a quorum. tive theory’’ places the President al- has. In doing so, they don’t really cite The PRESIDING OFFICER (Mr. most above the law. any evidence for this accusation. They COBURN). The clerk will call the roll. Under this theory, independent coun- think if they just keep repeating this The legislative clerk proceeded to sel appointed to investigate Presi- smear, one dreamt up by far-left groups call the roll. dential misdeeds would be unconstitu- such as Ralph Neas’ People for the Mr. INOUYE. Mr. President, I ask tional. Similarly, the theory holds that American Way and the Alliance for unanimous consent that the order for enforcement agencies independent of Justice, if they keep repeating the lie the quorum call be rescinded. the President, such as the Securities over and over, the American people The PRESIDING OFFICER. Without Exchange Commission, the Federal will fall for it. The American people objection, it is so ordered. Communications Commission, and the are smarter than that. The American Mr. INOUYE. Mr. President, at this National Labor Relations Board, would people are listening to some distin- moment in our history, our country also be unconstitutional because they guished people, including distinguished faces a spectrum of challenges broader are not under the President’s control. African Americans, with whom Judge than any we have ever faced before, The theory also justifies a President Alito has served. both at home and abroad. However who would overstep Acts of Congress To cite a couple of examples, the late great the storm we face today, I am and the Constitution when acting as Judge Leon Higginbotham, the first Af- confident that our Nation, founded on Commander in Chief. rican American to serve on the Federal the architecture of our Constitution, How Judge Alito might actually District Court for the Eastern District will prevail. The checks and balances apply this ‘‘unitary executive theory’’ of Pennsylvania and whom the L.A. established among the Congress, the on the Supreme Court is, of course, an Times called ‘‘a legendary liberal and President, and the courts are the true open question. scholar of U.S. racial history,’’ had arsenal of freedom. In the end, these Separated by a span of 11 years, how- said of Judge Alito: checks and balances in the hands of the ever, his own speeches in 1989 and 2000

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00019 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.021 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S164 CONGRESSIONAL RECORD — SENATE January 26, 2006 suggest that Judge Alito’s views on the ASIAN AMERICAN JUSTICE CENTER, have been persecuted in their own countries. powers of the President are long-held Washington, DC, January 10, 2006. In Chang v. INS, Judge Alito disagreed with and strong. Hon. ARLEN SPECTER, the court’s decision to grant asylum despite Chairman, the fact that Chang had presented evidence A memo he generated early in his ca- Hon. PATRICK J. LEAHY, that his wife and son already faced persecu- reer with the Reagan administration Ranking Member, Committee on the Judici- tion and he was threatened with prison if he amplifies this impression. In that ary, U.S. Senate, Washington, DC. returned to China. In Dia v. Ashcroft, Judge memo, Judge Alito wrote on a Presi- DEAR CHAIRMAN SPECTER AND RANKING Alto dissented from a majority opinion granting asylum to an immigrant from the dent’s authority to modify an act of MEMBER LEAHY: On behalf of the Asian American Justice Center (formerly National Republic of Guinea whose house was burned Congress by making a ‘‘signing state- Asian Pacific American Legal Consortium), down and wife raped in retaliation for his op- ment’’—a written document issued by a a national civil rights organization dedi- position to the government. President on signing an act of Congress cated to advancing and defending the civil For the above reasons, we must oppose his into law. rights of Asian Americans, we are writing to confirmation as Associate Justice. We appre- express our concern opposition to the nomi- ciate your consideration of our views. If you In the memo, Judge Alito wrote, that nation of Judge Samuel Alito to be Associate have any questions, please feel free to con- ‘‘the President’s understanding of the Justice of the Supreme Court of the United tact AAJC Deputy Director Vincent A. Eng bill should be just as important as that States. Judge Alito’s record demonstrates at (202) 296–2300, x121 or AAJC Director of of Congress.’’ This statement suggests hostility and poses grave risks to constitu- Programs Aimee J. Baldillo at (202) 296–2300, that Judge Alito believes the President tional and legal rights and protections that x112. We look forward to working with you. Sincerely, has a role in the legislative process not are core to the advancement of the commu- nities we represent. KAREN K. NARASAKI, contemplated under the Constitution’s Supreme Court decisions continue to have President and Executive Director. exclusive grant of legislative power to an immense impact on the lives of Asian the Congress. Americans, ranging from Gong Lum v. Rice JAPANESE AMERICAN CITIZENS LEAGUE, San Francisco, CA, January 8, 2006. Judge Alito’s writings and speeches (1927), an unsuccessful challenge to school Hon. PATRICK J. LEAHY, show how he personally believes that segregation that would later be overturned by Brown v. Board of Education in 1954, to U.S. Senate, Ranking Minority Member, Senate the Congress should have less power to United States v. Korematsu (1944), where the Judiciary Committee, Washington, DC. check and balance the President. Court upheld the internment of Japanese DEAR SENATOR LEAHY: The Japanese Amer- Americans. Often, cases where the rights and ican Citizens League (JACL), the nation’s His judicial opinions, issued in his of- oldest and largest Asian American civil ficial capacity as a judge on the Third liberties of minorities are at question are de- cided by a very narrow 5–4 margin. Based rights organization, wishes to express our Circuit, demonstrate a parallel convic- upon materials produced by Judge Alito as strong opposition to the nomination of tion that the Congress should have less well as his judicial record, we believe that he Judge Samuel Alito to the United States Su- authority in general. would fail to demonstrate a clear under- preme Court. Judge Alito’s legal opinions and writings standing of key issues important to the civil In United States v. Rybar, Judge over the past several years have left a clear rights communities. record of an individual whose legal views Alito wrote a minority opinion assert- In 1986 Alito wrote a letter in his capacity could have serious negative impact on the ing that the Congress had no authority as Deputy Assistant Attorney General to nation’s Asian American communities. As a to pass laws to regulate machine guns. former FBI Director William Webster in civil rights organization, we are not only The majority opinion criticized Judge which he suggested that ‘‘illegal, aliens have troubled by Judge Alito’s ideological brand Alito’s narrow and restrictive view of no claim to nondiscrimination with respect of conservatism, but also by his judicial Congressional authority. to nonfundamental rights,’’ and that the leanings that would make tenuous the con- Constitution ‘‘grants only fundamental In Chittister v. Department of Com- stitutional protections of American citizens. rights to illegal aliens within the United The record shows that Judge Alito once munity and Economic Development, States.’’ Alito makes no mention of Plyer v stated proudly his opposition to affirmative Judge Alito ruled that the Congress Doe in this letter, which ruled that a state action; as a lawyer for the government, he had no authority to allow State em- could not discriminate against undocu- has argued that immigrants can be denied ployees to sue for damages under the mented children in public education, even basic protections and rights guaranteed by Family Medical Leave Act. Judge though education is not considered a funda- the Constitution; he has shown little regard Alito’s restrictive view on Congress’s mental constitutional right. This raises for individuals who have sought sanctuary in questions about whether he would ade- authority was later invalidated by the the U.S. through the political asylum appeal quately protect undocumented immigrants process; he has expressed a legal opinion that Supreme Court when it considered the from unconstitutional forms of discrimina- would support racial discrimination in em- same issue in a later case. tion. ployment cases; he has written an opinion Our Supreme Court shoulders the sol- Judge Alito’s opinions in cases involving that would have denied a gender discrimina- racial discrimination and voting rights lead emn task of discovering how the Con- tion case to be heard by the court; he has us to believe that he will fail to champion raised serious concerns about the ‘‘one per- stitution applies to the unique prob- civil rights in a manner that would ensure son one vote’’ concept of democracy; he has lems of the day. Through dialog, study, that all communities will be full partici- shown a proclivity to undermine due process and diligent inquiry, the Justices bring pants in the rights and liberties that our and privacy protections. to bear the collected experiences of the constitution promises. For example, in Bray The Supreme Court is in many instances Nation, and forge justice from the Con- v. Marriot Hotels, a racial discrimination the final arbiter in protecting the rights of stitution by tempering its words with case, the majority concluded that Alito’s dis- Americans and therefore should not be a ve- hicle for those who would push for a political human compassion, wisdom, and integ- senting view would protect employers from suit even where the employer’s belief that it agenda, be it from the left or the right of the rity. had selected the best candidate ‘‘was the re- political spectrum. Given the early pro- Judge Alito’s record suggests that he sult of a conscious racial bias.’’ As majority nouncements in his career and his legal opin- holds his personal beliefs on expanding pointed out, ‘‘Title VII would be eviscerated ions either as a government attorney or from if out analysis were to halt where the dissent the bench, we are not convinced that Judge the President’s power so strongly that Alito can serve the interests of the people as they might come before the call of jus- suggest.’’ In his 1985 application to the De- partment of Justice’s Office of Legal Coun- a member of the highest court of the land. tice. Accordingly, I have concluded sel, Judge Alito raised opposition to the Su- The Japanese American Citizens League that I must oppose his nomination. preme Court decisions that first articulated urges you, as a member of the Senate Judici- the fundamental civil rights principle of ary Committee, to vigorously question Judge Mr. President, I ask unanimous con- Alito on his past record and to carefully ex- sent to have printed in the RECORD a ‘‘one person, one vote.’’ Those decisions later paved the way for major strides in the effort amine his current legal positions. The JACL letter from the Asian American Justice strongly opposes Judge Alito’s nomination to secure equal voting rights for all Ameri- and does not believe that his confirmation as Center, dated January 10, 2006, and a cans and greater representation of racial and an Associate Justice of the Supreme Court letter from the Japanese American ethnic minorities at all levels of govern- serves the best interest of all the people of Citizens League, dated January 8, 2006. ment. Both letters refer to the nomination of Of great concern to us is Judge Alito’s this great nation. Yours truly, Judge Alito. record on immigration law. In asylum cases, it appears that Judge Alito has a tendency JOHN TATEISHI, There being no objection, the mate- to rule against individuals who are seeking National Executive Director. rial was ordered to be printed in the protection in the United States, even where Mr. INOUYE. Mr. President, I suggest RECORD, as follows: evidence show that they have been or would the absence of a quorum.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00020 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.016 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S165 The PRESIDING OFFICER. The legally seized evidence cannot be used gress had the authority to require clerk will call the roll. in a trial; the decision that poor people States to comply with the ADA and, The assistant legislative clerk pro- are entitled to have lawyers in crimi- amazingly, whether Congress ade- ceeded to call the roll. nal cases; the decision that the wearing quately documented discrimination. Mr. HARKIN. Mr. President, I ask of symbols of protest is protected For example, in 2001, the Court nar- unanimous consent that the order for speech; the decision that suspects have rowly held that an experienced nurse the quorum call be rescinded. the right to remain silent; the decision at a university hospital, who was de- The PRESIDING OFFICER. Without that you have a right to an attorney; moted after being diagnosed with objection, it is so ordered. the decision that you have the right to breast cancer because her supervisor Mr. HARKIN. Mr. President, soon the be informed of these protections and did not like being around sick people, Senate will vote on the nomination of the charges against you. was not covered by the ADA because Samuel Alito to replace Justice O’Con- These were all Warren Court deci- she had the misfortune to work for a nor on the U.S. Supreme Court. Of all sions, and these decisions, far from evi- State hospital. If she had worked for a of the issues we consider in the Senate, dencing an extreme view of the Con- private hospital, she would have been perhaps no issue raises such deep and stitution, are decisions that the vast covered, according to the Supreme fundamental questions as the nomina- majority in this country believe are Court. tion of a Supreme Court Justice. fair and correct and give meaning to In contrast, in 2004, again by a nar- The issues that come before the Su- our Constitution’s promise of indi- row margin, 5 to 4, with Justice O’Con- preme Court are not abstract legal con- vidual liberty and dignity. nor in the majority, the Court held cepts; rather, they involve the very Yet Judge Alito chose to cite his dis- that Congress did have the authority values that define who we are as a na- agreement with these very decisions as to require States to make courthouses tion. They ask us to think about what his motivation for studying law. He accessible. kind of society we want to be. I believe chose to cite his disagreements with Over the next few years, the Court strongly that we want to be a society these decisions as his reason for work- will likely look at whether other State which strives for justice, protects the ing to narrow or overturn the rulings and locally owned facilities are re- powerless, provides meaningful protec- in the Reagan Justice Department. quired to be accessible. And in case tions to workers, and allows those who I find this very troubling. I cannot anyone doubts that accessibility is still have suffered discrimination to seek help but wonder what other laws Jus- a day-to-day issue for the disabled in recourse and affirm their rights in Fed- tice Alito might seek to narrow if he is this country, I want to point out two eral court. granted lifetime tenure on the Su- stories recently in the Des Moines Reg- I believe that a nominee to the Su- preme Court. ister in the last week. preme Court needs more than just ex- Another law that gives meaning to First, the fire alarm went off in the cellent legal qualifications. He or she our Constitution’s promise of liberty State capitol, and there was no way for must possess a true passion for justice, and dignity is the Americans with Dis- people in wheelchairs, including a an understanding that the law cannot abilities Act. Fifteen years ago—now State legislator who was recently in- be viewed with cool, analytical approaching 16—I championed the jured in a farming accident, to exit the dispassion, but with the acknowledge- ADA, as it is now known, because I had building. ment of its role in molding a fairer and seen discrimination against the dis- Another example is before that, a more just society. He or she must un- abled firsthand, growing up with my woman in a wheelchair had no way to derstand and believe in the critical role brother Frank who was deaf. Through- get onto the stage to speak at a Martin the Federal courts play in protecting out his life, Frank experienced active Luther King, Jr., Day tribute. the civil rights of all Americans, in- discrimination at the hands of both But there is no guarantee that the cluding the 54 million Americans who private individuals and the govern- Court will continue to require that fa- live every day with a disability. A ment, and this served to limit the cilities be made accessible. Instead, we thorough review of Judge Alito’s choices before him. could end up with a crazy patchwork record and of the Senate Judiciary Frank’s experience was by no means where courthouses are accessible but Committee hearing has convinced me unusual, as Congress documented ex- maybe libraries are not; prisons are ac- that he falls far short of that measure tensively prior to enacting the Ameri- cessible but maybe employment offices and, as a result, I oppose his nomina- cans with Disabilities Act. As part of are not. tion. the writing of that bill, we gathered a When we passed the ADA, we in Con- One of the things I found most trou- massive record of blatant discrimina- gress did not forbid employment dis- bling about Judge Alito was his state- tion against those with disabilities. crimination against the disabled unless ment that one of the factors that moti- We had 25 years of testimony and re- they work for the State. We didn’t say vated him to study constitutional law ports on disability discrimination. some services must be accessible. But was his disagreements with the Warren Fourteen congressional hearings and 63 that is what the Court has been saying. Court decisions in the areas of criminal field hearings by a special congres- Talk about judicial activism. procedures and voting rights. Frankly, sional task force were held in the 3 To put a fine point on it, the ADA is I find this to be a stunning admission. years prior to the passage of the Amer- at the mercy of the Supreme Court and I know there are many who often decry icans with Disabilities Act. We re- of the nominee who assumes this seat. the decisions of the Warren Court as ceived boxes loaded with thousands of Based on his record, I am gravely con- inappropriate liberal judicial activism. letters and pieces of testimony gath- cerned that Judge Alito does not be- I strongly disagree with that charac- ered in hearings and townhall meetings lieve that Congress has the authority terization. So many of the decisions of across the country from people whose to protect the fundamental rights of all the Warren Court, beginning with the lives had been damaged or destroyed by Americans. Instead, his record is one 1954 unanimous decision in Brown v. discrimination against people with dis- that values the rights of the State over Board of Education—that decision that abilities. We had markups in five dif- the rights of people. separate is not equal—are not just lib- ferent committees. We had over 300 ex- In the two instances where Judge eral values, they are American values— amples of discrimination by States—by Alito has been required to interpret re- American values that each person’s States—against people with disabil- cent Supreme Court cases limiting the vote should have the same weight; that ities. power of Congress to pass national leg- legislative districts should contain I know this. I was there. I was the islation under the 14th amendment or equal population; that the freedom to chairman of the Disability Policy Sub- under the commerce clause, he has marry a person of another race is a committee and the lead sponsor of the gone further than the Court itself. fundamental civil right; the decision bill. First, consider a case involving the that broadcasters are required to pro- Yet since enactment of the ADA, the Family and Medical Leave Act, the law vide programming that serves the pub- Court has repeatedly questioned—or I that allows Americans to take unpaid lic interest and to provide for a diver- should say a minority of the Court has leave from work to care for a newborn sity of viewpoints; the decision that il- repeatedly questioned—whether Con- child, a sick child, or an ailing parent.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00021 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.024 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S166 CONGRESSIONAL RECORD — SENATE January 26, 2006 Over 50 million Americans have taken room on the first floor and held court legal theory trumps, overcomes the unpaid family and medical leave since there, and Mr. Lane could have wheeled real-life travails of ordinary people. As its passage, including 5 million State his wheelchair into that room. I said—immune to the real-life strug- workers. Yet confronted with a case Services must be accessible, and that gles. The fact that the police strip- challenging whether State and local is what we said in the ADA. But Mr. searched a 10-year-old girl, the fact employers were required to grant un- Alito does not see it that way. His fail- that a mentally disabled worker was paid family and medical leave, Judge ure to recognize the role of the Federal sexually assaulted, the fact that a farm Alito held in Chittister v. Department courts in protecting victims of dis- family was threatened at gunpoint by of Community and Economic Develop- crimination can be seen even more di- U.S. Marshals without any resistance ment that Congress lacked the author- rectly. during an eviction process—all of this ity to order State and local employers In 1995, the Third Circuit, on which failed to sway him that these ordinary to abide by the law. Mr. Alito sat, ruled that people with Americans even deserve to be able to Imagine that, Judge Alito on the disabilities should be allowed to live in present their cases against the Govern- Third Circuit said that we didn’t have the community, not warehoused in in- ment. It failed to persuade the judge the authority to pass the family and stitutions, whenever it was possible. that they should even be allowed to medical leave bill. He was opposed to The Third Circuit’s opinion was con- present their cases against the Govern- it. sistent with Justice Thurgood Mar- ment. This is real life, real people, and Fortunately, that holding was af- shall’s opinion in the Cleburne case. real situations. But, no, Judge Alito firmatively rejected by the Supreme Justice Marshall wrote that persons had some other philosophy, some other Court in 2004 when the Supreme Court with disabilities, and I quote Justice theory that overcame this. ruled 6 to 3 in favor of the FMLA. Chief Thurgood Marshall: In the past few days, I have heard a Justice Rehnquist was the author of . . . have been subject to a ‘‘lengthy and number of my colleagues on the other that opinion. He was joined by Justice tragic history’’ of segregation and discrimi- side of the aisle express alarm or dis- O’Connor. nation that can only be called grotesque. [In may that so many Democratic Sen- Think about this. Would that case the early 20th Century] a regime of state- ators have expressed their opposition have been decided the same way if mandated segregation and degradation emerged that in its virulence and bigotry ri- to this nominee. In light of the record Chief Justice Roberts had been there in valed, and indeed paralleled, the worst ex- that I just outlined, I find it alarming place of Chief Justice Rehnquist? And cesses of Jim Crow. . . .[L]engthy and con- that more Senators on the Republican if Justice Alito had been there instead tinuing isolation of the retarded has perpet- side have not expressed their opposi- of Justice O’Connor? I am afraid it uated the ignorance, irrational fears, and tion to this nominee. I thought it was would not. stereotyping that long have plagued them. my friends on the other side who so Secondly, again in 2004, the Supreme The Third Circuit agreed that people loudly proclaimed individual liberty, Court issued a 5-to-4 decision that held should not be warehoused. They should individual dignity of the person. Yet similarly that Congress could order be allowed to live in the community Judge Alito dismisses this under some State courthouses to abide by the whenever possible. Yet after three rubric of a judicial philosophy or some Americans with Disabilities Act. Jus- judges on the circuit court ruled that theory that he has. tice O’Connor was in the majority, a 5- such institutionalization was a form of I must say, my alarm becomes more to-4 decision, Lane v. Tennessee. This discrimination under the ADA, Judge pronounced when I consider Judge is where a person with a disability had Alito argued that the Third Circuit Alito’s record on Executive power. At a been cited for speeding and was given a should reconsider the opinion. time when the President of the United ticket. He used a wheelchair. He When asked about this issue at his States is illegally spying on American showed up at the courthouse, and guess Judiciary Committee hearing, Judge citizens, at a time when the President what. The court was on the second Alito suggested that his desire to re- believes that he can ignore the clear floor. There was no elevator. So they hear the case did not suggest he had a intent of Congress—including a vote of said: OK, we will carry you up. The disagreement with the outcome. 90 Senators—and continue the use of first time he appeared in court they Frankly, I find this response difficult torture in the interrogation of criminal carried him up into the courtroom. to believe. I think most lawyers would suspects, at a time when the President Then the case was put over to another agree that judges do not vote to rehear believes he can indefinitely detain day. The second time Lane showed up, cases unless they disagree with the American suspects without charges and they said: We will carry you up again. outcome or unless other factors, fac- without access to a lawyer, it is more He said: I’m not going to be carried tors that were not present here, require important than ever that Justices on up. I have too much dignity for that. such a rehearing. the Supreme Court recognize the need They said: OK, you are going to have Fortunately, Judge Alito’s desire to to protect and preserve the balance of to crawl. Get out of your wheelchair reconsider the Helen L. case was de- power envisioned by our Founding Fa- and crawl up the steps or, of course, nied. The Supreme Court shortly after thers. the court will fine you because you did that held, in the landmark Olmstead Judge Alito is not that Justice. He is, not appear in the courtroom. decision, that unnecessary institu- instead, an adherent of a legal theory This is a real case. This really hap- tionalization is, in fact, a form of dis- that Presidential powers should be pened. It went to the Supreme Court. A crimination. Once again, Justice wholly unchecked. In fact, he is the au- 5-to-4 decision held that courthouses O’Connor sided with the majority in thor of the very strategy used by Presi- must be accessible under the ADA. the Olmstead decision. Given Judge dent Bush earlier this month when he If Justice Alito had been there in- Alito’s judicial record, we can safely essentially said to 90 Senators: I signed stead of Justice O’Connor, given his assume that he would have come down the amendment that says no torture limited view of congressional author- on the opposite side of this landmark but I hereby declare that I can ignore ity, it would be foolish to think that ruling and might even have steered the it if I feel like it. we would have had the same outcome, Court in a different direction, and After reviewing Judge Alito’s record, and Mr. Lane would, indeed, have to years of progress toward equal rights it is not difficult to wonder, if Judge crawl up the steps of the courthouse or for the disabled might have been Alito had been on the Supreme Court be carried up. erased. during its consideration of Marbury v. I want to digress here a moment. In case after case on the Third Cir- Madison, would he have voted the There may be those who say maybe it cuit, Judge Alito seems to have been other way? Would we have an imperial was an old courthouse and they immune to the real-life struggles of the President today and not a Court that couldn’t put in an elevator. The ADA people in the cases before him. It is has the role as final arbiter? That does not require that. It says that serv- like: This is the legal theory. Don’t strikes at the very heart of our Demo- ices must be accessible. The judge can bother me with the facts. Don’t bother cratic form of government and our hold court wherever he wants. The me with what is actually happening. checks and balances. judge could have gotten out of that There is some legal theory out there But don’t take my word for it. Con- second floor room and gone down to a that I believe in, and somehow this sider the words of the Justice whom

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00022 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.026 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S167 Judge Alito seeks to replace, Justice vacy rights, disability rights, civil This is not to say that I have agreed O’Connor, who wrote in the Supreme rights, the environment, consumer pro- with all of Justice O’Connor’s deci- Court’s recent decision in Hamdi v. tections, discrimination laws, access to sions. But her swing vote has helped to Rumsfeld that it is: the courts and campaign finance re- maintain a balance on the Court that . . . clear that a state of war is not a blank forms, among others. It has taken us has kept many decisions within the check for the President when it comes to the years to enact legislation aimed at pro- mainstream, and I believe Judge rights of the Nation’s citizens. tecting the rights of all Americans in Alito’s confirmation will sway the ex- I agree with Justice O’Connor. It is these areas I have mentioned. Other isting balance on the Court in a man- clear under the Constitution of the Justices on the Court, particularly ner that will jeopardize many of the United States that our President does Justices Scalia and Thomas, have protections afforded to the American not have unfettered powers. It is clear pressed to reverse many of the ad- public, many of which have been the that the Supreme Court has the au- vances the Congress has made in these result of many years of struggle. For thority, the duty to serve as a check on areas. They have pressed to limit con- this reason, I am not able to support that power. And it is clear to me that gressional power under the commerce his nomination. Judge Alito is not committed to pro- clause and the ability of Congress to I yield the floor, and I suggest the ab- viding that check. enact Federal civil rights legislation. I sence of a quorum. As recently as 2000, in a speech before fear that Judge Alito will join Justices The PRESIDING OFFICER. The the Federalist Society, Judge Alito Scalia and Thomas in this regard. clerk will call the roll. said in his speech: Justice O’Connor’s vote has also been The assistant legislative clerk pro- . . . the President has not just some execu- instrumental in ensuring that we do ceeded to call the roll. tive powers, but the executive power—the not surrender our civil liberties in Mrs. LINCOLN. Mr. President, I ask whole thing. times of war. Justice O’Connor’s state- unanimous consent that the order for What does that mean? ment in the Hamdi decision was just the quorum call be dispensed with. The PRESIDING OFFICER. Without . . . the President has not just some execu- quoted by my colleague from Iowa. It was a resounding reaffirmation that objection, it is so ordered. tive powers, but the executive power—the Mrs. LINCOLN. Mr. President, I rise whole thing. the President could not indefinitely de- tain a U.S. citizen without providing today to state my opposition to the What does Judge Alito mean by that? nomination of Samuel Alito to the I find this to be a frightening theory, adequate due process. The quote which was just made, and has been made by United States Supreme Court. in someone getting life tenure on the After thoroughly reviewing Judge Supreme Court. many of my colleagues, is that: We have long since made clear that a state Alito’s record during his time on the In closing, the new Supreme Court Federal bench, I am left with grave and Justice will have a tremendous impact of war is not a blank check for a President when it comes to the rights of our Nation’s serious concerns about his views on the on our society. The decisions before the citizens. power and scope of executive branch Court will determine whether we are At a time when the President has as- authority, the lack of discrimination true to our fundamental national val- serted expansive powers with regard to against parents in the workplace, his ues of fairness and justice and dignity imprisoning U.S. prisoners without general disposition toward cases in- for all. In Judge Alito, we have a nomi- charges, with regard to wiretapping volving civil rights, and his views on nee whose history, record, and testi- without warrants, with regard to using the scope of voter rights. mony make clear that he holds an un- interrogation techniques that amount Because of these concerns, I cannot duly restrictive view of the power of to torture, it is essential that we have in good conscience support his nomina- Congress to enact laws to protect Justices on the Supreme Court who are tion to the Supreme Court to replace workers, to protect public safety, to willing to provide a check on the au- Sandra Day O’Connor, the highest protect victims of discrimination, and thority of the executive branch. Judge Court in the land with tremendous that he holds a dangerous view of the Alito’s record indicates that he may ability to exercise judgment over the Court’s proper role in providing a nec- not be the right person to provide this people of this Nation. essary check on Executive powers. In- important check. Over the course of Judge Samuel deed, if Judge Alito is confirmed, I fear For example, he stated his support in Alito’s career and his tenure on the that many of the core protections pro- varying degrees for this so-called uni- Federal bench, he has compiled a trou- vided to people with disabilities under tary executive theory. This relatively bling record of personal statements and the Americans With Disabilities Act obscure legal theory has very little court decisions that signal his willing- and other laws simply disappear. For support in the mainstream legal com- ness to defer authority to the executive these reasons, I strongly oppose his munity, but it has profound implica- branch when questions of presidential nomination. tions for our understanding of the Con- powers are deliberated before the Su- I yield the floor. stitution. preme Court. The PRESIDING OFFICER. The Sen- Just recently, Congress passed a law I strongly believe that our Constitu- ator from New Mexico. reiterating the prohibition on the use tion calls for an independent and co- Mr. BINGAMAN. Mr. President, I rise of torture. In signing the legislation, equal judicial branch that provides a today to state my intention to vote the President issued a statement re- check on the government’s power to against the nomination of Judge Alito serving the right to take whatever ac- encroach upon our individual rights of to be the next Associate Justice of the tion he deems necessary as Commander Americans. Supreme Court. Let me start by saying in Chief—in effect reserving the right At a time when many Arkansans I certainly do not doubt Judge Alito’s to ignore the very law which he was at have expressed concerns over the Presi- qualifications, his integrity, his tem- that time signing. The President cited dent’s legal authority to eavesdrop on perament. He has served on the Federal this unitary executive theory as the Americans without court supervision bench for over 15 years, and he has legal basis for his power to disregard and detain U.S. citizens without judi- demonstrated during that time that he the plain text of the legislation. cial review or due process, I cannot is, indeed, a very capable jurist. None- We need to have a Supreme Court support a Supreme Court nominee who theless, after carefully looking at his that is prepared to provide the nec- has repeatedly failed to uphold reason- judicial record and listening to his an- essary checks and balances crucial to able limits of presidential authority at swers to the Senate Judiciary Com- our democratic system of government. the expense of constitutional liberties. mittee, it is also clear to me that if I believe Justice O’Connor charted a This issue is especially significant confirmed, Judge Alito will move the moderate course in terms of the au- because Judge Alito would replace Jus- Court in what I believe is the wrong di- thority of Congress to enact legislation tice Sandra Day O’Connor, who re- rection for our country. aimed at protecting the welfare of cently ruled in a 2004 case on executive Judge Alito has been nominated to Americans and with regard to uphold- authority that ‘‘a state of war is not a replace Justice Sandra Day O’Connor. ing the rights of citizens vis-a-vis their blank check for the President when it She is a moderate who has been a crit- own government, and I believe it is im- comes to the rights of the nation’s citi- ical fifth vote in cases impacting pri- portant to maintain that same course. zens.’’

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00023 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.027 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S168 CONGRESSIONAL RECORD — SENATE January 26, 2006 While the legislative and executive tions of authority threatens to under- opinions of my constituents and col- branches of government are, by their mine many of the laws established by leagues on both sides of this issue. But very nature, political, we demand our Congress to ensure that discrimination in the end, after great prayer and re- judicial branch be above that. does not prevent anyone from realizing search—and certainly after listening to When one party controls both of the his or her full potential—not just as an all the principles I learned growing up political branches, the independence of American, but as a human being. as a farmer’s daughter in east Arkan- the judiciary is especially important. Also of concern are Judge Alito’s sas in the rural part of this Nation—I It is not just important to keep in comments on voter rights. He has stat- made the decision that I believe is in check but also to maintain the con- ed his interest in constitutional law the best interests of my State and of fidence of the American people that was motivated largely by his disagree- my country. their government is balanced and that ments with the Supreme Court re- I appreciate the time attention of my it is there to serve them and not the apportionment decision that estab- colleagues. I yield the floor. I suggest politicians. lished the principle of ‘‘one person, one the absence of a quorum. Our Founders created our country vote.’’ The PRESIDING OFFICER. The and its government with the memories This landmark case became a corner- clerk will call the roll. of tyranny still fresh in their minds. stone of our democracy by ensuring The bill clerk proceeded to call the The judicial branch was given excep- that everyone’s vote would be weighted tional authority for the specific reason roll. equally, regardless of an individual’s Mr. GRASSLEY. Mr. President, I ask that it provides a critical check on the economic background, their address, or two political branches of our govern- unanimous consent that the quorum the color of their skin. call be rescinded. ment. If an individual is prevented from This is not to say that the judicial The PRESIDING OFFICER. Without seeking a fair remedy at the ballot box branch is charged with correcting the objection, it is so ordered. by denial of his basic right to vote, the perceived wrongs of the party in power. Mr. GRASSLEY. Mr. President, do I only avenue he has left is our judicial It is simply charged with upholding the have 30 minutes? system. Constitution and the rights guaranteed The PRESIDING OFFICER. The Sen- Judge Alito’s skepticism of estab- to citizens under it. Upholding this re- ator may use as much of the next hour lished principles of voter rights cou- quirement is the most important duty as he pleases. pled with his skepticism of claims re- the court is given. Mr. GRASSLEY. Thank you. If a potential nominee to the Su- lating to discrimination is a dangerous Mr. President, I support the nomina- preme Court cannot or will not uphold combination that threatens to exclude tion of Samuel Alito. President Bush either part of this solemn duty, his or many Americans from full and equal has made a very excellent choice in her appointment will serve to under- participation in their government and picking Alito. He has the intellect, ju- mine the fundamental system of society. dicial temperament, and integrity to I remind my colleagues that the checks and balances on which our gov- be an excellent Justice. strength of our Nation comes from the ernment depends. He seems to have a very clear under- input of the diversity of individuals Of equal concern is Judge Alito’s standing of the proper role of the judi- who make up this great land. We can- record on the issue of discrimination in ciary in our government. That came not diminish that. the workplace. out very clearly in the hearings. In Chittister v. Department of Com- Equal access to the ballot box is a right guaranteed to every American He commands the respect of his col- munity and Economic Development, leagues on the Third Circuit, as their Judge Alito’s statement that the Fam- that is the very foundation of democ- racy. testimony before our committee dem- ily Medical Leave Act was a ‘‘dis- onstrated. proportionate solution’’ to the problem These rights came after much work and incredible sacrifice and to me they He also has the respect of the lawyers of workplace discrimination is deeply who practice before him and the em- troubling. are too important to put at risk. As I stated during the debate on ployees who have worked with him. In an opinion rejecting the position That was demonstrated in testimony of Judge Alito, Chief Justice Rehnquist Chief Justice Robert’s nomination, considering a Supreme Court nomina- before our committee as well. explicitly noted that common work- But we can’t always accurately pre- place practices had been discrimina- tion is one of the most important du- ties we are called upon as Senators to dict how an individual ultimately will tory toward both men and women by make decisions once he or she gets on reinforcing the role of women as the fulfill. I did not come to my decision on the bench. But we do have a constitu- sole domestic caregiver. tional process in place, and we have to I fear that Judge Alito’ s inability to Judge Alito’ s nomination lightly. use our judgment within that process recognize this type of discrimination Ultimately, I supported the nomina- and trust the confirmation process. threatens dire consequences for rights tion of Chief Justice Roberts because I hard won by women over the last few sincerely believed he cared more about I would say the 225-year history of decades. the rule of law and our Nation’s judi- our country succeeding as it has is an The majority of our Nation’s families cial system than he did about ideology affirmation that the process has depend on income from both parents or politica1 parties. worked well. just to get by. The future and strength I sincerely regret I cannot draw the We have confirmed many outstanding of our Nation depends on the strength same conclusion about Judge Alito. individuals to the Supreme Court, and of the fabric that our families are made For me, this nomination is not about the process has worked well thus far of. a single issue or controversy. It is and will continue to work well with I cannot in good conscience vote to much more important than that. Judge Alito. allow any of the gains that have al- This nomination is about the rights Judge Alito was very impressive in lowed women to become an integral and freedoms we cherish as Americans. the hearings. He did an excellent job part of our Nation’s workforce while It is about the future course of our under a great deal of fire. He was thor- remaining exceptional mothers to their Nation and the impact the decisions of ough, he was candid, and he was forth- children to be rolled back. the Supreme court will have on the right with all 18 of us on the com- As his record points out, Judge Alito citizens of this great land. mittee, and demonstrated a deep un- has consistently set an unfairly high I feel government has a commitment derstanding of the law and a deep un- burden of proof in discrimination cases to those amongst us who face incred- derstanding of the law and our Con- leading him to rule consistently ible challenges to ensure that the val- stitution. against Americans who are merely at- ues we all hold dear as Americans Contrary to the claims of some of my tempting to assert their basic constitu- apply equally to them. colleagues from whom we have been tional rights. I have real doubts about Judge hearing this morning and yesterday, Judge Alito’s philosophy of deferring Alito’s views on the role of government Judge Alito’s testimony was very sub- to the government and those in posi- in protecting those rights. I respect the stantive, and he was responsive.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00024 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.006 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S169 Let me quantify that. Judge Alito As a consequence of this power grab da. A judge can’t have any preferred outcome answered more than 650 questions dur- by the courts, the judicial confirma- in a particular case. And a judge certainly ing nearly 18 hours of testimony. Com- tion process also, unfortunately, has does not have a client. The judge’s only obli- pared to the performances of Justice become extremely politicized. That is gation, and it’s a solemn obligation, is to the rule of law, and what that means is that in Ginsburg who answered 307 questions because when judges improperly as- every single case, the judge has to do what at her hearing, and Justice Breyer, who sume the role of deciding essentially the law requires. political questions rather than legal answered 291 questions, one can hardly For all of his opponents, when we questions, the judicial confirmation swallow what we hear on the other hear things such as that and they fit in process also devolves into one focused side—that Judge Alito was not forth- with what the Constitution’s writers less on whether a nominee can impar- coming with the Committee. intended for the judiciary to do, how I easily conclude, as I think the pub- tially and appropriately implement the can we find fault with Judge Alito’s ap- lic concludes, that he has been one of law. Instead, the process devolves into proach? Why would we fear him at all? the most forthcoming nominees to one focused on whether a nominee will Judge Alito also believes in justice come before the Judiciary committee. implement a desired political outcome for all, as afforded by the laws and the The Constitution provides the Presi- from the bench, regardless of what the Constitution of our great nation. He dent with the power to nominate Su- law says, regardless of what the Con- told the 18 members of the Judiciary preme Court Justices. And it provides stitution requires. Commitee: the Senate with advise and consent du- But Judge Alito understands the ties, presumably ending up in an up-or- proper role of a judge. Judge Alito un- No person in this country, no matter how down vote. high or powerful, is above the law, and no derstands the judicial branch plays a person in this country is beneath the law. In Federalist No. 66, Alexander Ham- limited role in our system of govern- ilton wrote: ment—but not surprisingly so because He said: It will be the office of the President to that is what the Constitution intended. Our Constitution applies in times of peace nominate, and, with the advice and consent Judge Alito testified: and in times of war, and it protects the of the Senate, to appoint. There will, of rights of Americans under all circumstances. The judiciary has to protect rights, and it course, be no exertion of choice on the part should be vigorous in doing that, and it Another very important position of the Senate. They may defeat one choice of should be vigorous in enforcing the law and Judge Alito takes: the executive, and oblige him to make an- interpreting the law . . . in accordance with other; but they cannot themselves choose— Results-oriented jurisprudence is never what it really means and enforcing the laws they can only ratify or reject the choice he justified because it is not our job to try to even if that’s unpopular. may have made. produce particular results. We are not policy makers and we shouldn’t be implementing That is Alexander Hamilton com- He continues: But although the judiciary has a very im- any sort of policy agenda or policy pref- menting on the role of the President erence that we have. and the Senate in the judicial con- portant role to play, it is a limited role. . . . It should always be asking itself whether it Contrary to the claims of his oppo- firmation process. I have been on the is straying over the bounds, where it is in- nents, Judge Alito understands the Ju- Judiciary Committee for more than 25 vading the authority of the legislature, for diciary has an important role in our years. I take this constitutional re- example, and whether it is making policy system of checks and balances. He un- sponsibility very seriously. Our work judgments rather than interpreting the law. derstands the importance of the inde- in committee allows us to evaluate And that has to be a constant process of re- examination on the part of the judges. pendence of the judicial branch. Judge whether a nominee has the requisite Alito will not shirk from that responsi- judicial temperament, intellect, and Judge Alito’s record is clear that he bility and he will see that the Judici- integrity. We also evaluate throughout will not make law, but rather he will ary is an effective check on abuses of that process whether the nominee un- strictly interpret the law we write. His power, both by the executive and the derstands the proper role of a Justice record is clear that he will do his very legislative branches of government. In in our democratic system of govern- best to remain faithful to the actual fact, as Judge Aldisert, who served ment; mainly, but not limited to, re- meaning of the Constitution, rather with Judge Alito on the Third Circuit spect for the rule of law and respect for than mold it into what he would like testified: the Constitution, all over any personal that Constitution to say. Judge Alito said, along that line: Judicial independence is simply incompat- agenda the nominee might have. A Jus- ible with political loyalties, and Judge tice, to do justice, cannot have a per- Judges do not have the authority to Alito’s judicial record on our court bears sonal agenda. change the Constitution. The whole theory witness to this fundamental truth. Specifically, a Supreme Court nomi- of judicial review we have, I think, is con- Let me quote former Judge Gibbons, nee should clearly understand that the trary to that notion. The Constitution is an who also served with Judge Alito and role of a judge under the Constitution enduring document and the Constitution does not change. It does contain some impor- who now is litigating with the Bush ad- is a limited role, to say what the law tant general principles that have to be ap- ministration over the treatment of de- is, rather than make the law. plied to new factual situations that come up. tainees held at Guantanamo. He be- I quote Alexander Hamilton, Fed- But in doing that, the judiciary has to be lieves Judge Alito will not shy away eralist Paper No. 78: very careful not to inject its own views into from checking Government abuses. He The courts must declare the sense of the the matter. It has to apply the principles law, and if they should be disposed to exer- that are in the Constitution to the situations does not believe Judge Alito will cise will instead of judgment, the con- that come before the judiciary. rubberstamp any administration’s poli- sequences would equally be the substitution Judge Alito possesses a knowledge of cies if they run counter to the law and of their pleasure to that of the legislative and respect for the Constitution that is the Constitution. And he certainly did body. necessary for all Supreme Court Jus- not have any concern about Judge In fact, most Americans want judges tices. Judge Alito, in his testimony, Alito’s judicial independence. who will confine their job to inter- demonstrates an understanding of the Judge Gibbons testified: preting the law and the Constitution, proper role of a Justice. He under- It seems not unlikely that one or more of rather than making policy and societal stands and respects the separate func- the detainee cases that we are handling will choices from the bench. But what we be before the Supreme Court again. I do not tions of the judicial branch as opposed know the views of Judge Alito respecting the have seen lately is a trend where the to the functions of the legislative courts have expanded the role of the ju- issues that may be presented in those cases. branch and the executive branch, the . . . I’m confident, however, that as an able diciary far beyond what was originally political branches of government. legal scholar and a fairminded justice, he intended in the Constitution and by Judge Alito explained that a judge’s will give arguments, legal and factual, that the Framers. The courts have taken on role is not one of an advocate. He testi- may be presented on behalf of our clients a role that is much more akin to what fied: careful and thoughtful consideration, with- out any predisposition in favor of the posi- we do in Congress, the legislative The role of a practicing attorney is to tion of the executive branch. branch, making law, which is to make achieve a desired result for the client in a policy choices and to craft laws based particular case at hand, but a judge cannot I agree. I believe Judge Alito will be on those choices. think that way. A judge can’t have any agen- that independent judge who will apply

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00025 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.048 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S170 CONGRESSIONAL RECORD — SENATE January 26, 2006 the law and the Constitution, not just I have to say the committee received Unfortunately, Judge Alito’s record— to Congress, but to every branch of absolutely extraordinary testimony as you have heard for the last 2 days government, and every person, because from these appellate judges, which in- and as you heard 2 weeks ago in the Judge Alito knows no one, including cluded nominees from—just think, hearing—has been wildly distorted. the President, is above the law. these different Presidents nominated Contrary to these critics’ claims, Not only is Judge Alito an intelligent these people who testified before us, Judge Alito has ruled for plaintiffs as and experienced jurist, he is also an who said Judge Alito will make a great well as defendants in civil rights, ADA, openminded and fair judge. I am telling Justice—President Lyndon Johnson, and employment discrimination cases. everyone that, but anyone that saw the President Richard Nixon, President I think a statistical analysis of how hearing knows that, from the 18 hours Ronald Reagan, President George H.W. many times a certain kind of plaintiff he testified before the Judiciary Com- Bush, and President Bill Clinton, these wins or loses is not the best way to mittee 2 weeks ago. He is an open- Presidents appointed the people who judge a judge’s record. It is wrong to minded and fair judge. He told the com- came to us and said Samuel Alito will think there should be a scorecard on mittee: make a good Justice. how often plaintiffs or defendants Good judges develop certain habits of There is disagreement on the floor of should win, like some basketball game. mind. One . . . is the habit of delaying reach- the Senate as to whether he will be a Who should win depends upon the facts ing conclusions until everything has been good Justice. These are individuals we presented in the case and what the law considered. Good judges are always open to have heard from who have had the op- the possibility of changing their minds based says, just as it should be in a country on the next brief that they read or the next portunity to witness the interworkings based on the rule of law. argument that is made by an attorney who is of Samuel Alito as a judge during their What is important to Judge Alito is appearing before them, or a comment that is private conferences, on a daily basis, that he rules on the specific facts in made by a colleague when the judges pri- behind closed doors, when all the hair the case and the issue before his court, vately discuss the case. is let down. They saw his deliberative in accordance with the law and the How much more appropriate is that process. They know the ‘‘real deal’’ Constitution. Judge Alito does not approach to the law than just yester- Sam Alito. And these witnesses—all re- have a predisposed outcome in a case. day the Supreme Court decided to hear spected and accomplished judges in He does not bow to special interests, an execution case of a person in Flor- their own right—each of them only had but sticks to the law regardless of ida when they got the decision made glowing comments about Judge Alito. whether the results are popular or not. and the word down as they were strap- Their support was unqualified. Similar to Chief Justice Roberts, ping him in to inject the lethal chem- As Judge Aldisert told the com- Judge Alito rules for the ‘‘big guy’’ ical into him: Wait, don’t make a deci- mittee: when the law and the Constitution say sion until all the facts are in. So that We who have heard his probing questions the ‘‘big guy’’ should win. He rules for person did not die last night. during oral argument, we who have been the ‘‘little guy’’ when the law and the In fact, Judge Alito acknowledged he privy to his wise and insightful comments in Constitution say the ‘‘little guy’’ has changed his opinion in the middle our private decisional conferences, we who should win. That is precisely what good have observed at first hand his impartial ap- of the judicial process because he is judging is all about, and that is pre- waiting for all the facts, those mo- proach to decision-making and his thought- ful judicial temperament and know his care- cisely the kind of Justices who ought tions, those debates, to be done before fully crafted opinions, we who are his col- to be on the Supreme Court and, for he finally concludes. He testified: leagues are convinced that he will also be a most of the time in our history, have There have been numerous cases in which great justice. been on the Supreme Court—I think it I’ve . . . been given the job of writing an Let’s go to Judge Becker: will be 110 of them when Alito gets opinion . . . and in the process of writing the The Sam Alito that I have sat with for 15 there. opinion, I see that the position that I had years is not an ideologue. He’s not a move- The claims that Judge Alito is some- previously was wrong. I changed my mind. ment person. He’s a real judge deciding each And then I will write to the other members how hostile to civil rights, minorities, case on the facts and the law, not on his per- of the panel and I will say, I have thought women, and the disabled are really off sonal views, whatever they may be. He scru- this through and this is what I discovered the mark, and those arguments are in- pulously adheres to precedent. and now I think we should do the opposite of tellectually dishonest. It is easy to what we agreed, and sometimes they’ll agree Judge Becker said: cherry-pick cases and claim that a with me and sometimes they won’t. I have never seen him exhibit a bias judge is out of the mainstream. His fel- Now, what do you hear from the peo- against any class of litigation or litigants. low colleagues on the Third Circuit, ple opposed to Judge Alito? His critics . . .His credo has always been fairness. though, give you a completely different have tried to paint him out to be an ex- Chief Judge Scirica said: picture of Judge Alito than what you tremist. An activist judge with some Despite his extraordinary talents and ac- have seen painted here in the last 2 agenda hostile to individual rights and complishments, Judge Alito is modest and days. Fellow colleagues on the Third to what his critics have called the ‘‘av- unassuming. His thoughtful and inquiring mind, so evident in his opinions, is equally Circuit testified about Judge Alito’s erage American.’’ evident in his personal relationships. He is fairness and impartiality with respect We were presented with analyses on concerned and interested in the lives of those to all plaintiffs. how outside the mainstream Judge around him. He has an impeccable work For example, Judge Garth testified: Alito’s opinions were. But that is not ethic, but he takes the time to be a thought- I can tell you with confidence that at no what we heard from the American Bar ful friend to his colleagues. He treats every- time during the 15 years that Judge Alito Association. This group of men and one on our court, and everyone on our court has served with me and with our colleagues women unanimously voted to award staff, with respect, with dignity, and with on the court and the countless number of Judge Alito its highest possible rating: compassion. He is committed to his country times that we have sat together in private and his profession. But he is equally com- ‘‘well qualified.’’ We have heard from conference after hearing oral argument, has mitted to his family, his friends, and his he ever expressed anything that could be de- the Democrats that this ABA rating is community. He is an admirable judge and an scribed as an agenda. Nor has he ever ex- the ‘‘gold standard’’ about how to admirable person. pressed any personal predilections about a make any judgment about who is quali- Judge Barry said: case or an issue or a principle that would af- fied to serve on the judiciary. Samuel Alito set a standard of excellence fect his decisions. But that is also not what we heard that was contagious—his commitment to Judge Higgenbotham, Jr., a liberal from the panel of four sitting and two doing the right thing, never playing fast and judge, said: former Third Circuit judges who have loose with the record, never taking a short- Sam Alito is my favorite judge to sit with worked with Judge Alito for more than cut, his emphasis on first-rate work, his fun- on this court. He is a wonderful judge and a 15 years. They did not think Judge damental decency. terrific human being. Sam Alito is my kind Alito was out of the mainstream, as So contrary to what his misguided of conservative. He is intellectually honest. certain people on the floor are trying critics have alleged, Judge Alito is fair He doesn’t have an agenda. to claim, or an extremist, as you have and open-minded, and will approach Kate Pringle, a former Alito law heard often argued by the other side. cases without any bias and without a clerk and Democrat who has known the We heard quite to the contrary. personal agenda. judge since 1994, testified that:

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00026 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.050 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S171 [Judge Alito] was not, in my personal expe- Court. As I said before, history will was not a political hack. So she was rience, an ideologue. He pays attention to take care of the proper ‘‘balance’’ on confirmed. the facts of cases and applies the law in a the Court. But some of my colleagues— This was the same for Justice Breyer. careful way. He is conservative in that sense. or maybe speaking for their outside I knew that Breyer was a liberal and His opinions don’t demonstrate an ideolog- that I probably would not agree with ical slant. liberal interest groups—have taken the position that Judge Alito has to share his judicial philosophy, but he was I found Judge Lewis’s testimony to Justice O’Connor’s judicial philosophy qualified. So I voted for him. The Sen- be particularly compelling. Judge and voting record in order to take her ate confirmed Justice Breyer by a vote Lewis described himself to the com- seat on the Court. They argue that of 87 to 9. The President had made his mittee this way. These are his words: Judge Alito should not be confirmed, choice. The Senate found him to be ‘‘openly and unapologetically pro- regardless of whether he is qualified or qualified, and we confirmed him. Re- choice’’ and ‘‘a committed human not, because he does not appear to be publicans certainly did not put up any rights and civil rights activist.’’ That Justice O’Connor’s judicial philosophy roadblocks to the Ginsburg and Breyer is how he described himself, Judge ‘‘soul-mate’’, and he would change the nominations. I would say that Judge Lewis. ideological balance of the Court. Alito is no more out of the mainstream He testified about Judge Alito: Well, the last time I checked, the Su- than Justices Breyer and Ginsburg. [I]t is in conference, after we have heard preme Court does not have seats that The Democrats and liberal outside oral argument and are not propped up by law are reserved for a conservative or a lib- interest groups are intent on changing clerks—we are alone as judges, discussing eral or a moderate or a Catholic or a the rules of the game because they did the cases—that one really gets to know, gets not win at the ballot box in 2000 and a sense of the thinking of our colleagues. Jew or a Protestant, one philosophy or another philosophy—no! The Senate 2004, or maybe over the last 10 years. Judge Lewis continued: has never taken the position, more- The way the Democrats want to oper- And I cannot recall one instance during over, that like-minded individuals ate now is not the way we have oper- conference or during any other experience should replace like-minded Justices ated in the past. But the truth is, by that I had with Judge Alito, but in par- politicizing and degrading the nomina- ticular during conference, when he exhibited leaving the Court. And until just re- anything remotely resembling an ideological cently, I never heard the argument tions process, and the nominees them- bent. from the other side of the aisle. That selves, we will end up driving away our best and brightest minds from volun- Judge Lewis further said: kind of reasoning is completely anti- thetical to the proper role of the judi- teering for public service. It is dis- If I believed that Sam Alito might be hos- appointing to me to see a decent man tile to civil rights as a member of the United ciary in our system of government. States Supreme Court, I guarantee you that The reality is that the Senate has and his family have to endure hurtful I would not be sitting here today. . . . My historically confirmed individuals to allegations and insinuations which are sense of civil rights matters and how courts the Supreme Court who are determined just plain false and, moreover, mean- should approach them jurisprudentially to be well qualified to interpret and spirited. might be a little different. . . . But I cannot apply the law. It has not been the Sen- It is disappointing to me that so argue with a more restrained approach. As ate’s tradition to confirm individuals many of my colleagues are going down long as my argument is going to be heard this path, creating a standard that can and respected, I know that I have a chance. to promote special interests or rep- resent certain causes. That is not what only harm the independence of the ju- And I believe that Sam Alito will be the type diciary, and severely distort our sys- of justice who will listen with an open mind the Constitution says for the Senate to do. In fact, the Court’s composition has tem of government. and will not have any agenda-driven or re- Before I conclude my remarks, I want sult-oriented approach. changed with the elected branches over to quote from a letter I received from the years. Almost half of the Supreme Judge Lewis concluded: an Iowa constituent. I will only quote Court Justices have been replaced by I am here as a matter of principle and as a it in part, but I will include it for the individuals appointed by a President of matter of my own commitment to justice, to RECORD. Her name is Joan Watson-Nel- fairness, and my sense that Sam Alito is uni- a different political party. son, and she wrote about her very per- formly qualified in all important respects to The truth is that the Senate has not sonal impressions of Judge Alito when serve as a justice on the United States Su- ever understood its role as maintaining they attended high school together in preme Court. any perceived ideological balance on the late 1960s in New Jersey. I don’t So who do you believe has accurately the Court. In fact, the Senate outright know exactly how she got to Iowa. But depicted Judge Alito’s qualifications rejected that kind of thinking when she is there and she wanted me to and record? The speeches of opponents Ruth Bader Ginsburg came before us. know how she remembered Sam Alito. today and yesterday? Or the people She was a known liberal, a former gen- She wrote: who have worked with the judge, day eral counsel for the ACLU, and she was I remembered [Samuel Alito] because he in and day out for years, who know him overwhelmingly approved by the Sen- stood out in his class and in the school. He personally, and who have seen him up ate by a vote of 96 to 3. She replaced was one of the leaders of the school. . . . I re- close and in the trenches? I will pick whom? A conservative justice, Justice membered him being very bright, well pre- those people who have worked with Byron White. Yet there were not any pared, and brilliant. He appeared to be an in- Judge Alito for 15 years, particularly arguments from the other side of the dividual with vision. . . . . He stood out as a because they come from different polit- aisle or from this side of the aisle that young man with a great deal of integrity. ical backgrounds and different ap- she would upset the balance of the Many of his teachers from high school are gone now. But I know if they were here and proaches to the law and the Constitu- Court. And she did—change the balance could write letters on his behalf, they would tion, as opposed to the partisan, liberal of the Court, radically swinging it to have many stories to tell about the kind of outside interest groups that have prob- the left. student he was both inside and outside the ably never even met Judge Alito. I, I certainly did not agree with Justice classroom. then, know whom I believe. Ginsburg’s liberal judicial philosophy, The letter continues: Not only that. If one wipes away the but I voted for her. The fact is that the I am not a very political person. I have distorted and deceptive characteriza- Senate confirmed Justice Ginsburg be- some issues that I believe in deeply and oth- tions, as well as the false insinuations cause President Clinton won the elec- ers that I do not have a deep commitment and calculated smears, Judge Alito’s tion. He made a promise in that elec- about. I am sure that Sam and I do not agree record plainly shows that he is a dedi- tion who he was going to appoint to the on all the issues that will be placed before cated public servant who practices Supreme Court. He had a right to him. The abortion issue is likely to be one of those, as I understand from the media that what he preaches: integrity, modesty, nominate who he wanted based upon he may be against abortion. However, I do judicial restraint, devotion to the law, the results of that election—the same strongly believe that he will listen to the ar- and devotion to the Constitution. thing for George Bush in the 2000 elec- guments placed before him, research the law, Let me briefly address this issue tion and the 2004 election. Moreover, and decide honorably. which has been brought up that some- and more importantly, though, Justice She concludes her letter this way: how Judge Alito’s appointment is Ginsburg had the requisite qualifica- It has been nearly 40 years since he grad- going to upset the balance of the tions to serve on the Court, and she uated from high school.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00027 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.052 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S172 CONGRESSIONAL RECORD — SENATE January 26, 2006 I think the implication is she hasn’t ate overwhelmingly confirmed Justice him. The abortion issue is likely to be one of even talked to him in the last 40 years. Ginsburg, the most liberal Justice on those, as I understand from the media that She says: the Court, these partisans will change he may be against abortion. However, I do strongly believe that he will listen to the ar- And although I have a good memory for de- the rules in the middle of the game guments placed before him, research the law, tails, the specific details of my involvement once again. They will vote against and decide honorably. with Sam are not as clear as I would like to Judge Alito with an eye toward the The best summary of the type of person have them be in my endorsement for him. next election and the demands of their that I believe Sam to be is that I believe that What is left, however, is the internalized most extreme and activist supporters. he has many of the same qualities that I memory of Sam. That memory tells me that The Washington Post had it right have observed in you, Senator, over the he will make an excellent Supreme Court when it editorialized on January 15: years that you have been our State senator. justice. I hope that with your hearings on his Those qualities and values are the reason A Supreme Court nomination isn’t a forum appointment, you and the others will be able that I continue to vote for you and support to refight a presidential election. to make that clear to any who may wish to you. I think that this is the best endorse- try to discredit him for political reasons. I would go a step further than that ment that I can give to Sam. It has been What I learned about the Supreme Court editorial. A Supreme Court nomination nearly 40 years since he graduated from high branch of government— is not a forum to fight any election. It school. And although I have a good memory Talking about when she was in is the time to perform one of our most for details, the specific details of my involve- school— important constitutional duties and ment with Sam are not as clear as I would is that this part of the ‘‘checks’’ in our sys- decide whether a nominee is qualified like them to be in my endorsement for him. tem is to be devoid of politics. I believe that What is left, however, is the internalized to serve on the Nation’s highest court. memory of Sam. That memory tells me that Sam has what it takes to fulfill that role. I hope my colleagues will cast their I think this is a very nice testimonial he will make an excellent Supreme Court vote based on Judge Alito’s out- Justice. about the man we are going to vote on standing qualifications, rather than on I hope that with your hearings on his ap- and hopefully confirm to become the the distorted claims of liberal outside- pointment, you and the others will be able to next member of the Supreme Court. I interest groups. I urge my colleagues make that clear to any who may wish to try appreciate Ms. Watson-Nelson’s letter to rise above partisan politics and sup- to discredit him for political reasons. What I letting us know about her personal ex- port this worthy nominee, Samuel learned about the Supreme Court branch of our government is that this part of the perience with Sam Alito. She hit the Alito. Samuel Alito deserves our over- nail on the head. The Supreme Court ‘‘checks’’ in our system that is to be devoid whelming vote of approval, and it of politics. I believe that Sam has what it needs to get out of the business of poli- would be a great shame if he doesn’t takes to fulfill that role. tics, and we need to stop discrediting get it. Sincerely, good nominees for political reasons. I ask unanimous consent to print in JOAN WATSON-NELSON. She, like most Americans, knows what the RECORD the letter from which I The PRESIDING OFFICER (Mr. MAR- is going on. quoted. TINEZ). The Senator from Mississippi. So, it is clear to me, the people who There being no objection, the mate- Mr. LOTT. Mr. President, parliamen- know Judge Alito personally believe, rial was ordered to be printed in the tary inquiry before I begin: I know we without any reservation, that he is a RECORD, as follows: have a balance, going back and forth in judge who follows the law and the Con- DEAR SENATOR GRASSLEY: I spoke with you this debate. Have any prior arrange- stitution without preset outcomes in briefly at the Iowa Farm Bureau annual ments been made with regard to others mind. They believe he is a man of great meeting on November 30th regarding Sam proceeding, or may I go at this time? intellect and insight. They believe he Alito. You requested that I follow up our dis- The PRESIDING OFFICER. The Sen- is a fair and open-minded judge com- cussion with a letter about how I felt about him. ator may proceed until 2. mitted to doing what is right, rather He graduated from Steinert High School Mr. LOTT. Mr. President, I rise today than committed to implementing a po- (AKA Hamilton High School-East) in 1968 to speak in favor of the nomination of litical agenda or a personal agenda. and I graduated from Steinert in 1969. I re- Judge Samuel Alito for Associate Jus- They believe he is a man of integrity, member well that he was one of 4 Valedic- tice of the U.S. Supreme Court. modesty, and restraint. torians that year, a first for the school. Before I proceed to my discussion of I am pleased to support Judge Alito’s There were 2 men and 2 women. I knew one my views of Judge Alito, I take a mo- nomination. Judge Alito will be a great of the women well and I remembered him be- ment to thank Senator ARLEN SPECTER Justice, not a politician on the bench. cause he stood out in his class and in the for the good work he has done on the He won’t impose his personal views or school. He was one of the leaders of the school. He was student council president at Judiciary Committee over the last few be a judicial activist, but will make de- Steinert his senior year, and I think he was months. He has had a loaded calendar, cisions as they should be decided—in also student council president at Reynolds a lot of important legislation, impor- an impartial manner, with the appro- Jr. High as well. I had worked with him on tant hearings, and the process of con- priate restraint, in accordance with the the school newspaper staff my Junior year, firming two Supreme Court Justices. It laws and the Constitution. Judge Alito the year he was the editor of the paper. has been a while since any chairman of will carry out the responsibilities of a I remember him as being very bright, well the Judiciary Committee or any com- Justice in a principled, fair, and effec- prepared, and brilliant. He appeared to be an individual with vision. His high school mittee has had this kind of workload tive manner. I am proud to cast my ‘‘crowd’’ of kids were the leaders of the over just a few months. Senator SPEC- vote in support of this decent and hon- school and his class. I knew some of his TER has done an excellent job in the orable man. crowd well during my high school years. He way he has handled it. I wish this story would end with stood out as a young man with a great deal I also recognize Senator GRASSLEY qualifications, integrity, and judicial of integrity. and his participation on the committee restraint, because only those consider- Many of his teachers from high school are and the statement he just gave. It is ations should matter. But it looks as gone now. But I know if they were here and obvious he has done his homework. He though the most partisan and political could write letters on his behalf, they would handled himself well in the hearings, among us won’t let that happen. There have many stories to tell about the kind of student he was both inside and outside the and he has even developed what seems may be some who will vote against classroom. The teachers at Steinert at the to be a personal affinity for Judge Judge Alito’s confirmation, not be- time Sam and I were in high school were a Alito. That will affect a lot of other cause of qualifications or integrity, family and they viewed the student body as Senators’ thinking about this, and a and not even because they want some- part of that family. His first principal at lot of the American people. body to legislate from the bench or Steinert was my father, Richard F. Watson. I commend those on the committee treat the Constitution as a blank slate When we discussed that Sam was up for the who have treated this process with the that judges can freely draw upon. Supreme Justice opening, he remembered dignity and respect it certainly de- No, it appears some Senators will him and hoped that he would be approved. I am not a very political person. I have serves. The Chair will note, I said to vote against this nominee because they some issues that I believe in deeply and oth- ‘‘those,’’ meaning not necessarily all of think doing so is a good political issue. ers that I do not have a deep commitment the members of the committee. Instead of applying the same standard about. I am sure that Sam and I do not agree There is not a lot I can say here we Republicans applied when the Sen- on all of the issues that will be placed before today that others won’t say about his

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00028 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.053 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S173 record or about this issue. But I believe character, which means do they have and Yale Law School. Some people this is one of the most important func- good integrity and ethics, are they edu- might try to use that against him. I tions we have in the Senate; that is, cated for the job, do they have good ex- guess he couldn’t get into Vanderbilt our advice and consent, the confirma- perience, and do they have the right or the University of Mississippi, but tion process for our Federal judiciary. temperament to serve. That is the way Princeton and Yale are not bad institu- There is no question that it was in- it should be. tions. tended we have three equal branches of When I have looked at the issue, I am He was a member of Phi Beta Kappa. Government: the judiciary, the execu- absolutely satisfied we have one of the He was an editor of the Yale Law Re- tive, and the legislative. We all have most qualified nominees for the Su- view. He clerked for Judge Leonard responsibilities under the Constitution preme Court, probably one of the most Garth of the Third Circuit. He was an and under the law, and those have qualified in at least 70 years, when we assistant U.S. attorney for the District evolved over the years. Separation of look at all he has done. I have applied of New Jersey. He was Assistant to the power should not mean we become the this principle during Democratic ad- Solicitor General of the United States body or the part of Government that ministrations and Republican. Have I beginning in 1981 where he argued 12 becomes obstructionist or is always occasionally voted against nominees? cases before the Supreme Court on be- looking for a way to take on the execu- Yes, for good and valid reasons. I voted half of the Federal Government. After tive or the judiciary. This is an impor- against one because I thought he had a serving as Deputy Assistant Attorney tant responsibility, and it is important conflict of interest. I voted against one General in the Office of Legal Counsel, every Senator have a chance to express because I thought he had been a recess he was nominated for U.S. attorney for his or her views on this topic. appointment inappropriately. I don’t the District of New Jersey. He was This is such an important issue that think Federal judges should, generally unanimously confirmed by the Senate. it is good for the country, anytime we get recess appointments, although it Then, of course, he was nominated by have a debate about the judiciary and has been done in one case where I President George H.W. Bush in 1990 to what is the role of the Congress, the clearly felt it was fair. But it is not the Third Circuit Court of Appeals. executive branch, the judiciary, the something I would want us to make a So he has good character. I think whole process: How should judges be se- practice of. most people would agree to that. He is lected and how should the hearings be I voted for Justice Ginsburg. A lot of clearly well educated. It is hard to dis- held and what should they do when people in my State said: Why? I voted agree with that. He clearly is brilliant. they get on the Court. This is good for for other so-called liberal judges I Maybe sometimes he is too smart for a the country, and we should look at it philosophically had problems with, but lot of us; he knows the law, and he can that way. in the case of Justice Ginsburg, I talk about cases by name without ref- I do know that it has been a constant thought she was qualified by character, erence to notes. He clerked and has topic of discussion in much of the education, experience, and by her tem- worked as a Federal judge in the Third country since last summer with the perament. I am sure I don’t agree with Circuit. He was on the prosecution side process that led to the confirmation of an awful lot of the decisions she has as assistant U.S. attorney and as U.S. Chief Justice Roberts and now the dis- made on the Supreme Court, but she is attorney. So these are all good quali- cussion about Judge Alito. I had a call qualified. fications. from a constituent in Jackson, MS. There is one other thing. It is called Then he went on the Third Circuit, a She expressed her support for the fact elections. When we elect a President, very important and active circuit, that the Judiciary Committee reported we should know what is going to be where he has served 15 years. He cast out this nomination and thought we their position on appointing people to approximately 5,000 votes, and he par- were going to vote today, which we the Federal judiciary. This President, ticipated in the decisions of more than should be voting today on his con- George W. Bush, made it clear he was 1,500 Federal appeals and has written firmation as an Associate Justice. It going to be looking for strict construc- more than 350 opinions—a lot of work said to me, once again, this is not a tionists, men and women of good char- and a lot of good work. person involved in the judiciary, but acter who would not write the laws but If there was a problem with this people are paying attention to what we would interpret the laws. He talked judge and his opinions, do you really say and what we do. We should not about it. Nobody in America should be think the Judiciary Committee could trivialize in any way this important surprised that he would nominate a not have found some cases or more process. candidate such as Judge Alito. He cer- phrases when he participated in all of Over the years I have asked myself, tainly is experienced. He is a strict these votes and wrote 350 opinions? I what should I do in analyzing Federal constructionist. He is qualified. have been very impressed by the will- judicial nominations, particularly the Some people are offended that the ingness of his colleagues, but not just Supreme Court, since they clearly can President would suggest what appears from New Jersey, not just those who have a long-term effect. When we con- to be a conservative for the Supreme served with him in previous adminis- firm these men and women for life Court. Why? What did they expect? trations, but six current and former terms, it is serious. We need to always That is why I voted for Justice Gins- Federal judges with all kinds of back- be thinking about it. When I first came burg and a lot of President Clinton’s grounds and philosophies—people who to the Senate after years in the House, nominees for the Federal judiciary, be- admit, I am a Democrat, a liberal, but I asked my senior colleague from Mis- cause he won the election. These were I know this man, his demeanor, how he sissippi, a respected member and now his choices. While I might disagree handles himself when we were in con- chairman of the Appropriations Com- with him philosophically, I couldn’t ference—where judges come out with mittee, to talk with me about what disagree with him as far as their quali- these mystical decisions they develop should be the criteria in debates for fications. Even the very active Demo- in those quarters. That is where you confirming judges. He gave me good ad- cratic Governor of Pennsylvania, Mr. see the real man. When you have peo- vice, and it was pretty simple. He basi- Rendell, has talked about elections and ple who have spoken up and made it cally said that under our advice and their meaning in this process. This clear about the quality of this nomi- consent responsibility, we should look President has selected this nominee nee, I think that is very important. to see if the nominee is qualified by and he is entitled to that and, basi- The ‘‘holy grail,’’ the American Bar character, education, experience, and cally, this judge should be confirmed. Association, has rated him well quali- temperament. Then if the nominee That was an interesting comment for a fied. There again, a lot of people used meets the basic criteria or qualifica- former chairman of the Democratic to say that is the most important thing tions in those areas, he or she should National Committee. But he took the of all. Well, he got their top rating. be confirmed. End of discussion. Not a right position, and I appreciate the fact Surely, that would affect us. Regard- ruling on a particular case, not a per- that he would do that. less of ideological, philosophy, or posi- sonal view on any subject, not one When you look at Judge Alito’s back- tioning, the people who know him best based on religious faith or any number ground, it becomes clear he is highly have spoken up very aggressively in his of other issues. Are they qualified by qualified. He is a graduate of Princeton support. That is very convincing to me.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00029 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.054 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S174 CONGRESSIONAL RECORD — SENATE January 26, 2006 I thought during the hearings he han- Some say: Wait a minute, this is ex- have a filibuster. We should not do dled himself quite well. He answered traordinarily important because this that. We cannot do that. That is not over 600—maybe 700 questions, when he may tip the balance, and that Justice fair to the process, not fair to this was given a chance. The statements Sandra Day O’Connor became some- nominee, not fair to the President. I and questions were a lot longer than what of a swing vote and probably hope our colleagues will not impose a the answers were allowed to be. I would be interpreted by some people as filibuster here and force action by the thought his responses were good and being a moderate in some respect. Senate to stop that sort of thing from studied. He met the so-called Ginsburg Well, it may tip the balance. From happening. standard. He would not say how he my standpoint, I sure hope so. But I I also want to say again that I think might rule on a particular case. How was not paying any attention to bal- we have sort of lost our grip on how we can you do that? You have to know the ance when I voted for Justice Ginsburg. treat these nominees. We need to find a facts and you have to look at prece- I was voting on the merits of that par- way to pull back. It has gotten too dents and you have to go through all ticular individual. ugly, too personal, and I think it un- these hoops that lawyers enjoy wres- I don’t think it is fair to Judge Alito dermines the credibility of the judici- tling with and judges have to comply to oppose him because he is conserv- ary and those of us who sit in judgment with. I watched it. My wife thought I ative and may tilt the balance of the on these men and women. I repeat was strange for sitting there watching Supreme Court. These things swing again that we have all been a party to these committee hearings, but I felt it back and forth. The pendulum has been this, including me—I don’t deny it— was part of my responsibility. I wanted way over there in the Supreme Court over the years. But at some point there to see what the Senators asked him for a long time and, finally, it has be- comes a time when you say to each and how he responded. I thought he come more moderate. Maybe it will be- other, regardless of philosophy or re- handled himself well on his answers come more conservative. gion or party, let’s see if we cannot do and how he responded on substance. I think I have told the story in the a better job, with more dignity and de- I was upset, quite frankly, when it Senate before about how I was talking corum, and that is more focused on the turned from substance to what got to a personal friend, now a Federal qualifications and character of the men close to character assassination, judge. He was inquiring in and women and not on politics, par- smear. It really got personal and ugly. bemusement, and incredulously: tisanship, or ideology. I would like to I was embarrassed about that. I was Why is it that the Federal judiciary is held be a part of making that happen. ashamed, quite frankly. I realize that in such low regard? Every now and then, I have col- sometimes our spouses have to put up I could not believe he even asked. I leagues say: What can we do about the with a lot for those of us who are in said: atmosphere? Well, it begins with us. It government and politics and on the ju- Your Honor, it is because of the dumb deci- begins with making up our minds that diciary. But I thought it was a defining sions that you all quite often make. we are going to be more communica- moment when the judge’s wife was The people are outraged with deci- tive and we are not going to be quite so driven to tears. sions such as the Kelo v. City of New I have appreciation for the fact that partisan. I have been as partisan as London case, dealing with eminent do- one of the Senators was saying, We are anybody around here. I served in the main. sorry that you had to put up with this. House, and it tends to make you a par- Time and time again, people see what We know you are a man of character tisan warrior when you have been in is happening in Supreme Court rulings. and integrity. I don’t think it needs to the minority. Some people say maybe They get in here when they should not go that far. you get to be kind of arrogant and Do we get carried away around here and don’t get in there when they mean when you get to be in the major- sometimes on both sides of the aisle? should. In many instances, they inter- ity. We can make a difference. I hope Sure. It is a tough, political, and par- pret the law wrongly or start to try to we find a way to do it, and do it soon. tisan political place. But how much is make laws. And it is not just the Su- I yield the floor and I suggest the ab- enough? How low will we sink? Every preme Court. I think over the years— sence of a quorum. year I have been in the Senate we have recently, at least—if you look at the The PRESIDING OFFICER. The drifted further and further down in how Supreme Court, they have been pretty clerk will call the roll. we deal with these Federal judicial ap- good. But the eminent domain decision The legislative clerk proceeded to pointments. Hopefully, we will finally just absolutely floored me. We have to call the roll. reach the bottom and we will go back correct that mistake. When you get Mr. WARNER. Mr. President, I ask up. down to the rest of the Federal judici- unanimous consent that the order for There is no good reason to vote ary, they are into all kinds of stuff all the quorum call be rescinded. against this good man to be on the Su- the time—social engineering, interven- The PRESIDING OFFICER. Without preme Court, even if you might dis- tion when they have no business inter- objection, it is so ordered. agree with him on some of his deci- vening, and they have lost a lot of re- Mr. WARNER. Mr. President, it is my sions. But he will be careful and stud- spect from the American people. understanding at this time that there ied and he will pay attention to the That said, I want the Federal judici- is an allocation of time reserved for the precedents—more so than I probably ary and the Congress and the President Senator from Virginia, and I shall pro- would like him to. But it is time to to be respected for the special institu- ceed, although we are slightly off begin to try to go back and approach tions they are. So this is an important schedule. I don’t wish to encroach on these nominations differently. Again, I decision. others, but I will proceed and watch am not absolving any of us for having I am pleased the President nomi- the floor very carefully. misbehaved sometimes in the way we nated Judge Alito. I think that his ex- The PRESIDING OFFICER. The Sen- handle these issues. perience over these years has clearly ator will suspend for a moment. I have The American people are watching, qualified him for it. He has 30 years of been advised there are only 2 minutes and they have to feel for this man. experience, and he went though 18 left of the majority time for this allo- They were unhappy with what they saw hours of questioning. He is a good man cation. from a lot of Senators on the Judiciary with a great background, with an Mr. WARNER. Then I will proceed, if Committee. They felt that he went American dream story, a first genera- I may, and ask unanimous consent to through more than he should have, in tion American from another country. speak for not to exceed 5 minutes. terms of personal attacks. They would He is everything I thought we should The PRESIDING OFFICER. Is there like for us not to go quite so far. be looking for. So I am pleased and objection? I was encouraged, frankly, when we honored to be able to come and speak Mr. KENNEDY. Reserving the right had the vote on Judge Roberts, to be on behalf of his nomination and urge to object, Mr. President, we certainly the Chief Justice. I was pleased that it his confirmation, and I will vote for hope there will be no objection. My was as bipartisan as it was, and he re- him. friend and colleague from Connecticut ceived 78 votes. But now I see that slip- In conclusion, let me say again that is roughly scheduled on the hour, but ping away in this case. there are some who say we may still that seems to be a reasonable request.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00030 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.029 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S175 We could add the other 5 minutes at provide advice to a President on whom law school, he worked as a law clerk the end of the hour if that would be he should nominate, the decision of for a Federal circuit court judge, Judge agreeable to the Senator from Virginia. whom to nominate solely rests with Leonard Garth of the U.S. Court of Ap- Mr. WARNER. Mr. President, I think the President of the United States. peals for the Third Circuit. that would work out. Perhaps the in- Alexander Hamilton made this point Subsequent to his clerkship, Samuel tervening hour will be such that we crystal clear in the Federalist Paper Alito worked as an assistant U.S. at- won’t need that additional 5 minutes No. 66 when he wrote: torney, as an assistant to the Solicitor because I think the managers and lead- It will be the office of the President to General of the United States, and in ership have tried to carefully manage nominate, and, with the advice and consent the Office of Legal Counsel in the U.S. the time. I am just able to get started of the Senate, to appoint. There will, of Department of Justice. In 1987, Mr. now because my colleagues gave very course, be no exertion of choice on the part Alito was unanimously confirmed by good speeches, and we all enjoyed it. of the Senate. They may defeat one choice of the Senate to serve as the U.S. attor- the Executive, and oblige him to make an- The PRESIDING OFFICER. Without other; but they cannot themselves choose— ney for the District of New Jersey. objection, the Senator from Virginia is they can only ratify or reject the choice of Three years later he was nominated recognized for 5 minutes. the President. and unanimously confirmed by voice Mr. WARNER. Mr. President, article That is precisely why we are here in vote to serve as a judge on the U.S. II, section 2 of the U.S. Constitution these closing days of a very prolonged Court of Appeals for the Third Circuit, explicitly provides for the responsibil- procedure with regard to Judge Alito. and he has served on this court for the ities of the executive branch and Gov- I am privileged to indicate that I last 15 years. ernment and the Senate with respect shall strongly support him at the time Without a doubt, Judge Alito has the to judicial nominations. The Constitu- the vote is taken and cast my vote for requisite legal and professional experi- tion reads in part that the President him. ence to serve on the Supreme Court. ‘‘shall nominate and, by and with the With respect to the issue of consent, Indeed, the American Bar Association, advice and consent of the Senate, shall I believe it is imperative that when a whose rating system of Federal judges appoint judges of the Supreme Court Senator considers whether to grant or is often referred to as the gold standard and all of the officers of the United withhold consent, he or she should rec- in the Senate, recently awarded Judge States.’’ Thus, the Constitution pro- ognize article II, section 2 and Alex- Alito a rating of well qualified—its vides the President of the United ander Hamilton’s statement in Fed- highest rating. States with the responsibility of nomi- eralist No. 66. Accordingly, during the But in addition to his impressive nating individuals to serve on our Fed- course of my 28 years in the Senate, I record of legal accomplishments, Judge eral bench. have always tried to fairly and objec- Alito has also demonstrated—during The Constitution provides the Senate tively review a judicial nominee’s cre- his confirmation hearings and over the with the responsibility of providing ad- dentials prior to deciding whether I past 15 years on the Federal bench—a vice to the President on those nomina- will vote to provide consent on a nomi- deep respect for legal precedent and for tions and with the responsibility of nation. I look at a wide range of fac- the constitutional responsibility of the providing and withholding consent on tors, primarily: character, professional legislative branch to write our laws. those nominations. In this respect, ar- career, experience, integrity, and tem- These qualities of Judge Alito were ticle II, section 2 of our Constitution perament for lifetime service on our confirmed by the remarkable testi- places our Federal judiciary in a courts. While I certainly recognize po- mony before the Judiciary Committee unique posture with respect to the litical considerations, it is my practice of several current and retired Federal other two coequal branches of our Fed- not to be bound by them. judges, appointed by both Republican eral Government. These same fair and objective factors and Democratic Presidents, who Unlike the executive branch and un- that I have used during my 28 years in worked closely with Judge Alito on the like the Congress, the Constitution the Senate have guided my consider- Federal bench. places the composition and continuity ation of Judge Alito’s nomination. In my view, Judge Alito’s strong of our Federal judiciary entirely within When Judge Alito’s nomination was record and experience, coupled with his the coordinated exercise and respon- first announced, I wasn’t overly famil- appearance before the Judiciary Com- sibilities of the other two branches of iar with the nominee. But over the past mittee, eliminate any question of the the Government. Only if the President few months, I have reviewed his record existence of ‘‘extraordinary cir- and the Senate fairly and objectively thoroughly. I met with the nominee cumstances’’ that would justify deny- and, if I may say, in a timely manner twice—the first time prior to his con- ing him an up-or-down vote. exercise their respective constitutional firmation hearings before the Senate Judge Alito is an outstanding judi- powers can the judicial branch of Gov- Judiciary Committee and the second cial nominee who I am proud to sup- ernment be composed and maintained time after the hearings. Each time I port for confirmation. I believe he will so that our courts can function and asked him a number of indepth ques- serve on the U.S. Supreme Court with serve the American people. tions. I have also reviewed a number of distinction, and I commend our Presi- For this reason, in my view, a Sen- his judicial opinions and followed the dent on making such a fine nomina- ator has no higher duty than his or her confirmation hearings before the Judi- tion. constitutional responsibilities under ciary Committee. In addition, many Mr. President, I suggest the absence article II, section 2—the advise and people have written, emailed, called of a quorum. consent clause. my office, or spoken to me personally The PRESIDING OFFICER (Mr. With respect to the Senate’s advice about this nominee, and I have respect- ISAKSON). The clerk will call the roll. responsibilities under article II, sec- fully considered their views. The legislative clerk proceeded to tion 2, I believe our Founding Fathers Having now completed my review of call the roll. explicitly used the word ‘‘advice’’ in Judge Alito’s nomination, I can say, Mr. LIEBERMAN. Mr. President, I our Constitution for a reason. This was without equivocation, that of the nu- ask unanimous consent that the order to ensure consultation between a Presi- merous judicial nominees I have re- for the quorum call be rescinded. dent and the Senate prior to the for- viewed during my nearly three decades The PRESIDING OFFICER. Without warding of a nominee to the Senate for in the Senate, Judge Alito’s credentials objection, it is so ordered. consideration. Adequate consultation and qualifications place him as very Mr. LIEBERMAN. Mr. President, prior to the forwarding of a nominee is well qualified. pursuant to the understanding between of utmost importance. And, I com- Judge Alito has an impressive record the Senator from Virginia and the Sen- pliment our distinguished President for of legal accomplishments. ator from Massachusetts, I now ask recognizing that in the case of now, He received his bachelor’s degree unanimous consent that there be an Justice John Roberts, and with respect from Princeton University and at- extra 5 minutes added at the end of to this nomination. tended Yale Law School. While at Yale, this hour for this side of the aisle. But, let’s not forget that while the he served as an editor on the Yale Law The PRESIDING OFFICER. Without Constitution calls for the Senate to Journal. Following graduation from objection, it is so ordered.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00031 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.030 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S176 CONGRESSIONAL RECORD — SENATE January 26, 2006 Mr. LIEBERMAN. I thank the Chair. Personal freedom and equal oppor- I thank the Chair, and I yield the Mr. President, I rise to discuss the tunity are America’s core ideals, and floor. nomination of Samuel Alito to be Asso- our courts have been and must be the The PRESIDING OFFICER. The Sen- ciate Justice of the Supreme Court. great advancers and protectors of those ator from Massachusetts. This is the sixth opportunity I have ideals. To me, that work defines the Mr. KENNEDY. Mr. President, I had as a Senator to consider a Presi- vital mainstream of American juris- thank the Senator from Connecticut dent’s nominee to the High Court. It is prudence. for his excellent statement. surely one of the most awesome and Based on his personal statements I spoke on this issue yesterday. I important responsibilities of Members during the 1980s when he was a Govern- wish to include in the RECORD some of this body because of the uniquely ment attorney, and particularly on his letters that I have received from the powerful and autonomous role the Su- 15 years of judicial opinions, I am left representatives of the working commu- preme Court has in our governmental with profound concerns that Judge nity. I will include them in the system and because, once confirmed, Alito would diminish the Supreme RECORD. The first letter I am going to Supreme Court Justices serve for life, Court’s role as the ultimate guarantor include in the RECORD is a letter I re- with accountability only to the Con- of individual liberty in our country. ceived from the AFL–CIO. Included in stitution, as they read it. This is not about a single issue but the comments are these words: Similar to most of my colleagues, I about an accumulation of his opinions As the enclosed memorandum explains judge the nominees based on four fac- that leads me to a preponderance of more fully, Judge Alito’s decisions and dis- doubts. For example, in civil rights sents show a disturbing tendency to take an tors: their intellect and ability, their extremely narrow and restrictive view of experience, their character, and their cases, Judge Alito has repeatedly es- laws passed by Congress to protect workers’ judicial philosophy. tablished a very high bar, an unusually rights, resulting in workers being deprived of On the first three factors—intellect, high bar for entrance to our courts for wage and hour, health and safety, anti-dis- experience, and character—I conclude people who believe they have been de- crimination, pension, and other important that Judge Alito more than passes the nied equal opportunity and fair treat- protections. On a number of occasions, Judge test. But on the fourth factor, judicial ment based on race or gender. Alito’s colleagues on the Third Circuit have philosophy, I am left with too many In one case, Bray v. Marriott Hotels, criticized his opinions for their excessively narrow view of worker protection and civil doubts to vote to confirm this nominee the majority of his colleagues on the rights statutes. Judge Alito holds federal for a lifetime of service on the U.S. Su- court said: agencies to an unrealistically high standard preme Court. Title VII of the Civil Rights Act would be when they seek to enforce worker protection Let me now go over these four areas eviscerated if our analysis were to halt laws, often reversing them on hypertechnical of consideration. where the dissent of Judge Alito suggests. grounds and depriving workers of important First, intellect and ability. From the Judge Alito’s narrow reading of the protections as result. meeting I had with Judge Alito, the commerce clause, as exemplified by his It continues: legal quality of his opinions, over 15 dissent in the case of United States v. Working families are struggling mightily years as a judge, and his testimony be- Rybar, casts a shadow on Federal legis- against an assault on our hard-won gains in fore the Judiciary Committee, I believe lation passed to protect the rights of the legislative arena and at the bargaining Judge Alito has shown that he is a per- individual Americans which has been table. Wages are being cut, pensions and health benefits are being drastically reduced son of considerable intellect and abil- and will be based on the commerce or eliminated, and job security is vanishing. ity. clause. When asked at his confirmation Now more than ever, workers need the pro- Second, experience. Judge Alito’s hearings about the question of personal tections offered to them under the laws curriculum vitae itself depicts his ex- privacy, Judge Alito accepted the 1965 passed by Congress to protect their pay, ben- cellent and relevant experience as a decision of Griswold v. Connecticut as efits, retirement security, and health. Work- law clerk, a Federal Government attor- settled law. But when asked over and ing families need and deserve Supreme Court ney, a U.S. attorney, and an appellate over, he refused to say the same about Justices who understand and respect the im- portance of hard-fought rights and protec- judge on the Third Circuit. the 1973 decision in Roe v. Wade. Third, his character. Judge Alito, I tions, not Justices who take an unduly nar- On that most divisive and difficult row view of the law, and of our rights. Judge know, was questioned aggressively at question of abortion, I personally be- Alito’s judicial philosophy is one that ap- the Judiciary Committee’s confirma- lieve that Roe achieved a just balance pears at odds with workers’ interests. Given tion hearings and elsewhere with re- of rights and reflected a societal con- the current composition of the Supreme gard to his character, but I thought he sensus that has continued and deep- Court, and the absence of even a single Jus- emerged with his integrity and honor ened in our country for more than tice with a worker advocacy background, we intact. The ABA standing committee three decades. I was left with serious cannot afford to have the Court further confirmed that judgment when it con- skewed against working families’ interests. concerns that Judge Alito would not In recent years, many cases have been de- cluded that ‘‘he is an individual of ex- uphold the basic tenets of Roe, and cided in the Supreme Court by a one-vote cellent integrity,’’ and that was based that is a very troubling conclusion. margin. The Supreme Court, decided, by one- on more than 300 interviews with pro- Every time I have voted to confirm a vote margins, two cases involving the ques- fessional colleagues. nominee to the U.S. Supreme Court, as tion of whether certain groups of workers Fourth is judicial philosophy, and I have with Justices Souter, Breyer, were protected under the National Labor Re- here is where, for me, the problems Ginsburg, and Roberts—two appointed lations Act. Millions of state employees were with this nomination begin and, in by Republican Presidents and two ap- deprived of their ability to seek relief in some sense, ends. Judge Alito brings to pointed by a Democratic President—I court under the Fair Labor Standards Act, the Age Discrimination in Employment Act, this nomination process a more did so knowing, as we all do, that I was and the Americans with Disabilities Act be- lengthy record of judicial opinions taking a risk because I could never cause of decisions decided by a one-vote mar- than any of the previous five nominees know exactly how the particular Jus- gin. The Court issued a decision restricting to the U.S. Supreme Court whom I tice would rule on the many cases that States in their ability to adopt their own have had the privilege to consider. In would come before him or her in a life- workplace safety laws, again by a one-vote his 15 years on the Third Circuit Court, time on the bench. But I ultimately margin. By a one-vote margin, the Supreme Judge Alito has written more than 350 concluded, based on their records and Court excused employers from having to pay opinions. Together, these opinions their testimony, that those four Jus- backpay when they are found to have dis- criminated against union supporters who leave me with profound doubts about tices would more likely than not up- happen to be undocumented workers. The whether Judge Alito would protect and hold the unique responsibility the Su- importance of this nomination to the rights advance the special role the Constitu- preme Court has as the most important and protections of working families is clear. tion gives the Supreme Court as the guardian of freedom, opportunity, and There is an excellent letter I received single institution in our Government privacy for every single American. from AFSME. It points out: that our Founders freed forever from Unfortunately, I have not been able As a judge on the 3rd Circuit Court of Ap- popular political passions so that it to reach the same conclusion about peals in Philadelphia, Lilts’s extreme views could protect the rights our founding Judge Alito, and so I will respectfully can be seen in his rulings where he consist- documents gave to every American. vote ‘‘no’’ on his nomination. ently limits Congress’ authority to enact

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00032 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.033 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S177 laws that protect the rights of workers and And they affect whether people will ac- These are the issues involving pen- individuals. . . . tually receive the retirement benefits sions. We have now seen 700 pension Then it says: they were promised. They affect wheth- funds collapse over the period of the In one such case, Alito denied a female po- er people will be free from discrimina- last 4 years, and $8 billion that workers lice officer’s sexual harassment claims de- tion in their daily lives. They affect had put aside has effectively been lost. spite overwhelming evidence that she had in- whether Americans’ most private med- These issues will come up. What are deed been victimized. ical decisions will remain a family the obligations of companies in order Public employees also have not been matter or will be subject to govern- to pay back workers? Those issues spared under Judge Alito. He wrote an opin- ment interference. And they affect eventually come before the Supreme ion in a Pennsylvania case where he stated whether students will be given fair con- Court—whole lifeline savings. Those that the Family and Medical Leave Act did issues come up before the Supreme not apply to state employees. Rightfully so, sideration when they apply to college. the Supreme Court ruled in disagreement They affect whether persons with dis- Court. with Alito, upholding the family care provi- abilities will have access to public fa- Mr. President, I see my friend from sion of the FMLA. Several courts since then, cilities and programs. They affect West Virginia who had been scheduled including the very conservative Fourth Cir- whether we will have reasonable envi- during this time. I have had an oppor- cuit Court of Appeals, have concluded that ronmental laws that keep our air and tunity to speak previously. There are state employees shall have access to the en- water clean. some additional comments I would like tire range of protections under the FMLA, There they are. These are the issues to make, but certainly the Senate thus rejecting Alito’s earlier ruling. looks forward to the words of the Sen- Perhaps most disturbing about Judge which the Supreme Court has ruled on very recently. We wonder about the Su- ator from West Virginia. I yield at this Alito’s judicial philosophy is his narrow time. reading of our civil rights laws, notably Title preme Court Justices, what judgments VII of the Civil Rights Act of 1964. . . . and decisions are they making that are EXHIBIT 1 It continues: so important to the average family. AMERICAN FEDERATION OF LABOR Why should an average family in Amer- AND CONGRESS OF INDUSTRIAL OR- While Alito’s 15 years as a Judge raises GANIZATIONS, major concerns, the time he spent as Presi- ica who is watching this debate think Washington, DC, December 14, 2005. dential appointee in the Reagan White House this nominee and his decisions are DEAR SENATOR: The AFL–CIO, a federation is equally disturbing. When Alito was a Jus- going to affect them? That is a reason- of 53 national and international unions rep- tice Department lawyer in the 1980s he urged able question. resenting over nine million working women President Reagan to veto legislation that Here you are. Employees, if you are a and men, has reviewed Judge Samuel Alito’s would have protected consumers from crook- worker, you may question whether em- record on the U.S. Court of Appeals for the ed car dealers. . . . ployees’ rights will be protected in the Third Circuit in cases of importance to Alito wrote that protecting Americans is working families. Based on this review, we not the federal government’s job. He said in workplace. I have just outlined several are compelled to oppose his nomination to be his memo, ‘‘After all, it is the states, and not examples where there have been Su- an Associate Justice on the United States the federal government, that are charged preme Court Justices who have denied Supreme Court. with protecting the health, safety and wel- workers fair consideration. As the enclosed memorandum explains fare of their citizens. This philosophy is ex- The ability of Americans to be secure more fully, Judge Alito’s decisions and dis- tremely harmful to state employees who de- in their own homes from unwarranted sents show a disturbing tendency to take an serve to have federal worker protections searches and seizures, we went through extremely narrow and restrictive view of apply to them as well. laws passed by Congress to protect workers’ the Groody case, Justice Alito permit- rights, resulting in workers being deprived of That is a letter from Mr. Gerald W. ting the strip-searching of a 10-year-old wage and hour, health and safety, anti-dis- McEntee. girl who was clearly not included in crimination, pension, and other important There is a similar letter from the the warrant that was approved by the protections. On a number of occasions. Judge United Auto Workers. judge. He was criticized, not by those Alito’s colleagues on the Third Circuit have I ask unanimous consent those let- of us who have expressed reservations criticized his opinions for their excessively ters be printed in the RECORD at the about the nominee, but criticized by a narrow view of worker protection and civil conclusion of my remarks. rights statutes. Judge Alito holds federal judge on the Third Circuit, talking agencies to an unrealistically high standard The PRESIDING OFFICER. Without about how Judge Alito’s actions were when they seek to enforce worker protection objection, it is so ordered. out of order. laws, often reversing them on hypertechnical (See exhibit 1.) They affect whether families will be grounds and depriving workers of important Mr. KENNEDY. Whoever is confirmed able to obtain medical care under their protections as a result. to succeed Justice Sandra Day O’Con- health insurance policies. Remember We are also very concerned about Judge nor will have enormous power to affect the debates we had on the Patients’ Alito’s views on the scope of Congressional power, given some of his rulings in this area, Americans’ daily lives. We have a con- Bill of Rights? We had legislation that and his views about voting rights, given his stitutional duty to ensure Justice passed here, passed the House. We came criticism of the Warren Court and its re- O’Connor’s successor has demonstrated very close to getting legislation— apportionment decisions. It is critical that a core commitment to upholding the doesn’t each HMO have to provide the Senators explore these and other areas thor- fundamental rights and freedoms on types of coverage they have committed oughly at Judge Alito’s upcoming confirma- which our Nation was founded. themselves to or do they not? Does tion hearings in order to understand his Our decision whether to confirm a that violate ERISA or doesn’t it vio- views and his judicial philosophy on these important issues. Supreme Court nominee affects the late ERISA? These are important judg- Working families are struggling mightily rights and freedoms not only of our ments. But it comes down to whether against an assault on our hard-won gains in generation, but those of our children individuals are going to get the health the legislative arena and at the bargaining and grandchildren as well. care coverage they thought they were table. Wages are being cut, pensions and The Court’s decisions affect whether going to get. That is going to be de- health benefits are being drastically reduced employees’ rights will be protected in cided by the Supreme Court of the or eliminated and job security is vanishing. the workplace. I have just referred to Now more than ever, workers need the pro- United States. tections offered to them under the laws three letters that I have received. I They affect whether people will actu- passed by Congress to protect their pay, ben- have received many others that have ally receive the retirement benefits efits, retirement security, and health. Work- been quite specific, pointing out the they were promised. The retirement ing families need and deserve Supreme Court different areas where the judge has ba- pensions are in free fall in the United justices who understand and respect the im- sically turned his back on the employ- States of America at the present time; portance of our hard-fought rights and pro- ees’ rights and workers’ rights. absolutely free fall. They say for re- tections, not justices who take an unduly They will affect the ability of Ameri- tirement you need to have your sav- narrow view of the law, and of our rights. cans to be secure in their homes from ings—that is part of it—you need the Judge Alito’s judicial philosophy is one that appears to be at odds with workers’ inter- unwarranted searches and seizures. Social Security and Medicare, and you ests. Given the current composition of the They affect whether families will be need to have your retirement. Those Supreme Court, and the absence of even a able to obtain needed medical care are the three legs on the stool for a single justice with a worker advocacy back- under their health insurance policies. dignified retirement. ground, we cannot afford to have the Court

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further skewed against working families’ in- AMERICAN FEDERATION OF STATE, survive under Judge Alito. Also, he ruled to terests. COUNTY AND MUNICIPAL EMPLOY- significantly reduce the ability of citizens to In recent years, many cases have been de- EES, AFL–CIO, bring suit against polluters under the Clean cided in the Supreme Court by a one-vote Washington, DC, December 19, 2005. Air Act. margin. The Supreme Court decided, by one- DEAR SENATOR: On behalf of the 1.7 million While Alito’s 15 years as a Judge raises vote margins, two cases involving the ques- members of the American Federation of major concerns, the time he spent as a Presi- tion of whether certain groups of workers State, County and Municipal Employees dential appointee in the Reagan White House were protected under the National Labor Re- (AFSCME), I am writing to announce our op- is equally disturbing. When Alito was a Jus- lations Act. Millions of state employees were position to the nomination of Judge Samuel tice Department lawyer in the 1980s he urged deprived of their ability to seek relief in Alito to be an Associate Justice on the U.S. President Reagan to veto legislation that court under the Fair Labor Standards Act, Supreme Court. We have reviewed his record would have protected consumers from crook- the Age Discrimination in Employment Act, and determined that his views are far too ex- ed car dealers by making odometer fraud and the Americans with Disabilities Act be- treme and out of the mainstream of judicial more difficult. Alito wrote that protecting cause of decisions decided by a one-vote mar- philosophy. His presence on the Supreme Americans is not the federal government’s gin. The Court issued a decision restricting Court therefore would further divide the job. He said in his memo, ‘‘After all, it is the states in their ability to adopt their own country and disenfranchise even more aver- states, and not the federal government, that workplace safety laws, again by a one-vote age citizens and working Americans. are charged with protecting the health, safe- margin. By a one-vote margin, the Supreme We believe that working people who are al- ty, and welfare of their citizens.’’ This phi- Court excused employers from having to pay ready seeing their rights and protections losophy is extremely harmful to state em- back pay when they are found to have dis- under attack would not fare well if Judge ployees who deserve to have federal worker criminated against union supporters who Alito was elevated to the Supreme Court. protections apply to them as well. happen to be undocumented workers. The Judge Alito has authored a number of deci- Judge Alito clearly is a staunch advocate importance of this nomination to the rights sions and dissenting opinions contrary to the of the federalism movement which poses a and protections of working families is clear. rights of employees and individuals. Of par- tremendous threat to employees of state The AFL–CIO urges you to oppose Judge ticular concern to our members is Judge Alito’s nomination and to insist on a more governments. State and local governments, Alito’s established practice of ‘‘closing the like private sector companies and non-profit moderate nominee with a record dem- court-room door’’ to victims of civil rights onstrating greater respect for workers’ organizations, are also employers. And, as violations by substantially increasing the employers they should be required to adhere rights. burden of proof placed on plaintiffs prior to Sincerely, to the same laws and regulations that all their cases ever getting to a jury of his or other employers are subject to. Unfortu- JOHN J. SWEENEY, her peers. In evaluating plaintiffs’ discrimi- President. nately, Judge Alito and the federalism move- nation claims, he has also repeatedly taken ment seek to limit the power of the federal a high-handed approach in dismissing the INTERNATIONAL UNION, UNITED government to protect individuals who hap- merit and weight of their evidence and has pen to be employees of state governments, in AUTOMOBILE, AEROSPACE & AGRI- been chastised by his colleagues on the Third CULTURAL IMPLEMENT WORKERS effect, making state employees second class Circuit for doing so. citizens. OF AMERICA—UAW, As a judge on the 3rd Circuit Court of Ap- We strongly urge the Senate to insist that Washington, DC, December 19, 2005. peals in Philadelphia, Alito’s extreme views all of the relevant information about Judge DEAR SENATOR: Next month the Senate is can be seen in his rulings where he consist- Alito be released, particularly the Solicitor expected to consider the nomination of ently limits Congress’ authority to enact General and the Office of Legal Counsel Judge Samuel Alito to be an Associate Jus- laws that protect the rights of workers and memoranda. We believe that there are under- tice on the U.S. Supreme Court. Based on individuals, including the Americans with lying reasons why the Administration con- our review of his past writings and judicial Disabilities Act (ADA) and the National tinues to resist releasing this vital informa- decisions, the UAW opposes his confirma- Labor Relations Act. And, although the ma- tion. tion. jority of his fellow judges disagreed with While serving on the Third Circuit Court of Judge Alito’s record is extremely troubling him, Alito set a standard so high that vic- Appeals, Judge Alito’s opinions have consist- to AFSCME and the workers we represent. tims of sex discrimination would find it vir- ently reflected a narrow, constricted inter- He is one of the most extreme federal judges tually impossible to prove their case. In one pretation of statutes protecting worker in the whole country. If confirmed, Alito such case, Alito denied a female police offi- rights. In particular, his opinions have ex- would tilt the court further to the right and cer’s sexual harassment claims despite over- cluded state employees from coverage under place in jeopardy decades of progress pro- whelming evidence that she had indeed been the Family and Medical Leave Act, denied tecting individual rights and freedoms. victimized. overtime to newspaper reporters, vacated For the forgoing reasons, AFSCME strong- Public employees also have not been OSHA citations, absolved corporate officers ly urges the Senate to reject Judge Alito’s spared under Judge Alito. He wrote an opin- from liability for unpaid wages, and exempt- nomination. President Bush should nominate ion in a Pennsylvania case where he stated ed a company from having to notify workers an individual that does not pose such an that the Family and Medical Leave Act about an impending plant closing. He even enormous threat to the rights and freedoms (FMLA) did not apply to state employees. issued a solitary dissenting opinion that of working men and women. Rightfully so, the Supreme Court ruled in would have criminalized ‘‘no docking’’ rules Sincerely, disagreement with Alito, upholding the fam- that have been a common industrial prac- GERALD W. MCENTEE, ily care provision of the FMLA. Several tice. International President. In addition, Judge Alito’s opinions in race courts since then, including the very con- and gender employment discrimination cases servative Fourth Circuit Court of Appeals, The PRESIDING OFFICER. The Sen- have reflected a restrictive interpretation of have concluded that state employees should ator from West Virginia is recognized. civil rights laws that would make it much have access to the entire range or protec- Mr. BYRD. Mr. President, I thank my more difficult for women and minorities to tions under the FMLA, thus rejecting Alito’s colleague from Massachusetts, my col- earlier ruling. obtain remedies when they are the victims of league and my friend, Senator KEN- discrimiation. We are especially troubled by Perhaps most disturbing about Judge Alito’s judicial philosophy is his narrow NEDY. Judge Alito’s statement in a 1985 job applica- Mr. President, how much time do I tion that he was ‘‘particularly proud’’ of his reading of our civil rights laws, notably Title work in the Reagan Administration to re- VII of the Civil Right Act of 1964, which bars have? strict affirmative action and limit remedies various forms of discrimination in employ- The PRESIDING OFFICER. The time for racial discrimination. We are also dis- ment. Even when plaintiffs in these cases of the minority is open until 5 minutes turbed by his 1985 writings disagreeing with come forward with substantial evidence of after 4 p.m. The Senator has 41 min- the concept of ‘‘one man, one vote’’. title VII violation, Judge Alito voted—often utes. The UAW believes that nominees to the in dissent—to deny relief without even let- Mr. BYRD. Mr. President, I take this Supreme Court must demonstrate that they ting juries decide whether discrimination oc- hold views that are within the judicial main- curred. In addition, in reviewing a plaintiff’s opportunity to offer a few observations stream, and are committed to supporting the evidence, he has on several occasions im- on the manner in which the Senate has rights of workers, minorities and women. properly assumed the role of jury or trial conducted its inquiry into the quali- Unfortunately, we believe that Judge Alito judge by casting judgment on the weight and fications of Judge Samuel A. Alito, Jr., fails to meet this essential test. Accordingly, merits of the evidence and the credibility of to serve on the U.S. Supreme Court. the UAW urges you to oppose his nomination a witness’ testimony. Regardless of any Senator’s par- to the Supreme Court. As U.S. citizens, we are concerned on sev- ticular view of Judge Alito, I think we Thank you for considering our views on eral other fronts as well. Alito consistently this important issue. ruled against victims of discrimination can all agree that there is room for im- Sincerely, based on a disability. His philosophy would provement in the way in which the ALAN REUTHER, restrict Congress’ power to enact disability Senate and, indeed, the Nation have Legislative Director. rights laws and few if any such cases would undertaken the examination of this

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00034 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.024 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S179 nominee. Let me be clear. I mean no The Framers of such a great docu- Congress to address an issue, then they criticism of the chairman of the Senate ment presumably had something better must take it to the Court. As the say- Judiciary Committee or any particular in mind when they vested the Senate ing goes, ‘‘If you can’t change the law, member of that committee. with the authority to confirm Justices change the judge.’’ I feel compelled to address this issue, of the Supreme Court. In fact, we know This kind of thinking represents a not to point fingers, not to scold, not they did. In 1789, Roger Sherman of gross misinterpretation of the separa- to assign blame, but only to address Connecticut defended the role of the tion of powers. It is the role of the Con- specific, sincere, heartfelt concerns Senate in confirming Presidential ap- gress—the role of the legislative that have been brought to my atten- pointments. He wrote: It appears to me branch—to make and change the laws. tion, by the people of West Virginia in that the Senate is the most important Supreme Court Justices exist to inter- particular. Many people, including branch in the government . . . The Ex- pret laws and be sure that they square foremost, as I say, the people of West ecutive magistrate is to execute the with the Constitution and with settled Virginia, in no uncertain terms were, laws. The Senate, being a branch of the law. frankly, appalled by the Alito hearings. legislature, will naturally incline to A better understanding of the Court’s I don’t want to say it, but I must. They have them duly executed and, there- role would do much to diminish the were appalled. fore, will advise to such appointments ‘‘hype’’ that now accompanies the judi- In the reams of correspondence that I as will best attain the end. cial nomination process. The role of received during the Alito hearings, Alexander Hamilton also had high the Senate in the Alito debate is not to West Virginians—the people I rep- hopes for the Senate’s ability to render push legislation or to score points for resent—West Virginians who wrote to its advice and consent function. He those who either support or oppose spe- criticize the way in which the hearings proclaimed: It is not easy to conceive a cific legislative proposals. The purpose were conducted used the same two plan better calculated than this to pro- of the current debate is to evaluate the words. People with no connection to mote a judicious choice of men for fill- fitness of Judge Samuel Alito to sit on one another, people of different faiths, ing the offices of the Union. the highest Court of our land, which in- different views, different opinions, Exactly what did the Framers mean cludes his temperament, his intellec- independently and respectively, used when they gave the Senate the power tual ability, and his record. the same two words to describe the to ‘‘consent’’ to the confirmation of In a perfect world, this heavy con- hearings. They called them an ‘‘out- the judicial nominees? stitutional responsibility of the Senate rage’’ and a ‘‘disgrace.’’ Historically, a majority of the Fram- would have little to do with party af- These were not form letters, ginned ers anticipated that the Senate’s con- filiation. Unfortunately, during the first ad- up by special interest groups on either firmation or rejection of a judicial ministration of George Washington, as the right or the left. These were hand- nominee would be based on the fitness far back as 1795, a bruising confirma- written, contemplative, old-fashioned of the nominee, not on partisan politics tion battle over the nomination of letters written on lined paper and per- or extraneous matters. John Rutledge to be the Chief Justice sonal stationery. They were the sort of Based on these assumptions, the of the Supreme Court established that letters that people write while watch- Framers presumably did not expect the the same Senators would consider not Senate to spend its allotted time on a ing television, in the comfort of their merely the qualifications but also the nominee staging partisan warfare in- living rooms, or sitting at the kitchen political views of a nominee in deciding stead of examining his or her qualifica- table. whether to support or reject his nomi- It is especially telling that many who tions. nation. objected to the way in which the Alito Yet the Framers probably also would I am a Senator who takes this Con- hearings were conducted do not sup- never have expected that a Senator of stitution seriously. I refuse simply to port Judge Alito. In fact, it is sorely a nominee’s own party would refuse to toe the party line when it comes to Su- apparent that even many who opposed ask the candidate meaningful ques- preme Court Justices. And I will make Judge Alito’s nomination also opposed tions. They certainly did not intend for up my own mind after careful con- the seemingly ‘‘made for TV’’ antics Senators of the nominee’s own party to templation. The President of the that accompanied the hearings. sit silently in quiet adulation, refusing United States said partly in jest that It is not just the Senate as an insti- to seek the truth, while smiling indul- he wanted to call me to lobby me on tution which is to blame. The virulence gently; thus, accomplishing nothing. the nomination. I said: Mr. President, I of some outside groups from both sides The Framers expected the Senate to don’t lobby very easily. I take my Con- of the political spectrum added fuel to be a serious check—a serious check—on stitutional duties seriously. I will lis- the fire. Multimillion-dollar adver- the power of the President. The Fram- ten to what anybody has to say, and tising campaigns either to proclaim or ers clearly thought that the Senate’s then, Mr. President, I will make up my to denigrate Judge Alito’s fitness for confirmation process ought to be fair, own mind. the position raged across the airwaves. ought to be impartial, ought to be I am a registered Democrat. Every- A solemn constitutional responsi- thorough, and ought to exhibit appro- body knows that. But when it comes to bility is not helped when it takes on priate respect for solemn duty and the judges, I hale from a conservative such a tone. dignity of both the process and the State. Similar to a majority of my con- And then there were the media and nominee. stituents, I prefer conservative judges. the media’s contribution to the dete- I regret that we have come to a place I have been saying that for years and rioration of this very important con- in our history when both political par- years. That is, judges who do not try to stitutional process. ties—both political parties—exhibit make the law. Was it necessary to subject Mrs. such a ‘‘take no prisoners’’ attitude. I was once approached by President Alito to the harsh glare of the tele- All sides seek to use the debate over a Richard Nixon to inquire about my in- vision klieg lights as she fled the hear- Supreme Court nominee to air their terest in being a U.S. Supreme Court ing room in tears, fighting to maintain particular wish list for or against abor- Justice. I was proud to be considered. her dignity in response to others with tion, euthanasia, Executive authority, Whether I would have been nominated, precious little of their own? Have we fi- freedom of the press, freedom of I have no way of knowing. But as I said nally come to the point where our Na- speech, wiretapping, the death penalty, to my wife: I don’t think I would like tion’s assessment of its Supreme Court workers’ rights, gun control, corporate that position. I would not like that nominee turns more on a simple-mind- greed, and dozens of other subjects. All kind of cloistered life. I like the rough- ed sound bite or an exploitive snapshot of these issues should be debated, but and-tumble of the legislative branch. than on the answers provided or with- the battle lines should not be drawn on She said: Then you had better let the held by the nominees? the judiciary. They should be debated President know that. Obviously, something is wrong with by the people’s representatives in the I said the same thing to Senator our judicial nomination process, and legislative branch. John Pastore, and he responded in the we in the Senate have the power to fix However, too many Americans appar- same way. He said: You had better let it. ently believe that if they cannot get the President know that.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00035 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.056 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S180 CONGRESSIONAL RECORD — SENATE January 26, 2006 I declined so that I might continue to made it clear that he understood and nees for the High Court should come serve the people of West Virginia, re- respected my viewpoint. down to each Senator’s personal judg- gardless of what the President may I also advised him of my view that ment of the man or woman before us, have in his heart and in his mind. This the executive branch is continually and augmented, of course, by such judicial is not to say that I would vote for any improperly seeking to grab power, records and writings as may exist. I judge just because he is a conservative. more power and more power, and that may not know exactly what kind of No. No, sir. If I think a conservative the separation of powers requires the Justice Samuel Alito will be. No one judge is unqualified, I will not vote for judiciary to be ever vigilant in stop- does. No one does. My considered judg- him, nor would any other Senator vote ping the abuse of power by the Presi- ment, from his record, from his an- for a nominee in that situation. dent and in protecting the powers of swers to my own questions, from his I have voted against judges on both the other two branches. obvious intelligence, and from his obvi- sides of the political spectrum, who I urged Judge Alito, as I urged Judge ous sincerity, leads me to believe him leaned too heavily on their political Roberts before him, to recognize the to be an honorable man, a man who views rather than on existing law, importance of maintaining the equal- loves his country, loves the Constitu- precedents and on the Constitution and ity of the three branches of our Gov- tion, and a man who will give of his who seemed to have a political agenda. ernment, protected by our Constitu- best. Can we really ask for more? Much has been made of the fact that tion. I stressed that he ought to be a I yield the floor. Judge Alito has expressed support of Justice who will not forget the people’s The PRESIDING OFFICER. The Sen- the concept of the ‘‘unitary executive.’’ branch, the legislative branch, the first ator from Colorado. Many are afraid his support for this branch, the primary branch mentioned Mr. SALAZAR. Mr. President, I rise concept means that he favors a broad in the Constitution under article I; the today to explain why I will vote expansion of Presidential power. And I executive is mentioned later on in arti- against Judge Samuel Alito’s nomina- shared some of that concern. Judge cle II. tion for Associate Justice to the U.S. Alito, however, has stated repeatedly I requested he not rule in a way that Supreme Court. that his support for the concept of the would expand the authority of an al- After reviewing his record, I believe unitary executive does not refer to ready expansionist executive. I reiter- Judge Alito will move the Supreme broadening the scope of the power of ated that the Framers did not place the Court too far to the conservative side the President. greatest power in the executive but, in- of American jurisprudence. I believe Instead, Judge Alito says that this stead, the Framers put the greatest Judge Alito’s judicial philosophy will theory refers to the way in which the power in the people—the people, like also dangerously increase Executive President utilizes his existing power to you and me. The first three words in power, injuring the checks and bal- faithfully execute the law as it applies the preamble of the Constitution are, ances built into our Constitution that to administrative agencies within the we all know, ‘‘We, the People.’’ The protect all of us. Judge Alito’s con- executive branch. In describing the Framers ensured that the people, firmation may roll back important unitary executive in his speech before through us, their elected representa- civil rights protections, protections the Federalist Society, Judge Alito tives in the Congress, would have the which were achieved in our country stated article II, section 3 of the Con- greatest power in our Government. In through the sacrifices of many and are stitution provides that the President response, Judge Alito told me he re- crucial to the future of the United ‘‘shall take care that the laws be faith- spected the separation of powers and States. fully executed.’’ ‘‘Thus,’’ he said, ‘‘the would not rule in support of a power- I hope, if Judge Alito is confirmed, President has the power and the duty hungry President. I liked that answer. history will prove my concerns wrong. to supervise the way in which the sub- I liked Judge Alito. He struck me as a But given his record, including his ex- ordinate executive branch officials ex- man of his word, and I intend to vote tensive written record, I cannot in ercise the President’s power of car- for him. good conscience support him. rying Federal law into execution.’’ I believe strongly that the Senate I thank the Senate Judiciary Com- Before the Judiciary Committee, has a responsibility to provide its ad- mittee. It held fair, serious, and dig- Judge Alito was asked point blank vice and consent with respect to a par- nified hearings. Chairman SPECTER, whether he thought the concept of the ticular nominee based on the merits or Ranking Member LEAHY, the members unitary executive refers to expanding demerits of that nominee, not on focus of the committee, and the majority and the scope of Presidential power, or in- groups, celebrity endorsements, bind- minority staff have again earned our stead to the President’s control over ers filled with innuendo and slanted gratitude. the executive branch. As I understood analysis or White House photo opportu- Judge Alito’s confirmation vote is it, Judge Alito confirmed he was speak- nities. particularly important for our country ing of the latter. In truth, there is absolutely no way because this seat on our Supreme Judge Alito was also asked whether of knowing what any nominee for our Court has been held by a champion of he would support an expansion of the Nation’s highest Court will do after justice and mainstream America for a scope of Presidential power. Specifi- that nominee is confirmed. One could quarter century: Justice Sandra Day cally, he was asked if he thought the cite many examples of Justices who O’Connor. Our Nation owes Justice President should have more power than surprised the President who nominated O’Connor a great debt of gratitude. he is expressly given under the Con- them, as well as the Members of the Justice O’Connor served as an exem- stitution and by law. Judge Alito stat- Senate who supported or opposed their plary role model for all of us, including ed several times that he would not sup- confirmation. Once a man or woman women succeeding at the very highest port that point of view, and he noted, has achieved the high honor of a life- level of our National Government. again, that the ‘‘scope’’ of the power of time appointment to our Nation’s high- Unfortunately, this nomination sig- the President has nothing to do with est Court, a transformation may occur. nals an undesirable retreat from diver- the unitary executive. The awesome responsibility of pro- sity on the U.S. Supreme Court. I met with Judge Samuel Alito. I tecting our Constitution and pre- Women make up more than half of the spent close to 2 hours with him. I asked serving the checks and balances for people of our country. Yet women have him what he thought about the estab- succeeding generations of Americans been represented in the Supreme Court lishment clause and the free exercise must elevate and sharpen one’s judicial in our entire history for more than two clause and the power of the purse and temperament in profound ways. The centuries by only two female Jus- the congressional power over the purse. duty to preserve the freedom of our tices—Justice O’Connor and Justice I told him that I believed the Supreme citizens as enshrined in our magnifi- Ginsburg. Now Justice Ginsburg is left Court has gone too far in prohibiting cent Bill of Rights must ennoble even to be the only role model on the Court the free exercise of religion in this an already noble mind and character. for the hopes and aspirations of women country. He listened respectfully and In the end, the heavy duty borne by and for all of us in America who believe said that he understood. He did not Members of the Senate to evaluate and that all men and all women are truly pledge to overrule precedent, but he reject or approve the President’s nomi- created equal.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00036 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.057 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S181 I regret that result, especially after structure for our country that has en- law that has served our country very it was the radical right of America dured and prospered for more than two well for more than 200 years. that derailed the nomination of Harriet centuries. The Framers were not suc- Let me be clear. My concerns are not Miers. We all know there are thousands cessful because they were abstract based exclusively on my view of the of highly qualified women lawyers and thinkers; they were successful because current President or my ideas about judges across America, and they could they were practical thinkers, practical how he would or would not wield domi- have provided exceptional service to Americans. The Framers knew human nant Executive power. We are talking the United States on the Supreme nature. Their view of human nature fo- about changes in the Court that could Court. Regardless of the merits or de- cused on the common frailties of peo- affect our Government for decades, as merits of Judge Alito, I am saddened, ple placed in positions of great power, Presidents of both parties take office at the daybreak of the 21st century, human desires to gather more power, and govern. that the United States has retreated human tendencies to credit one par- Dominant Executive power is not a from a cause that rightfully embraces ticular view of the world above all oth- ‘‘safe bet’’ for anyone, regardless of the inevitability of the equality of ers, and a very human unwillingness to one’s views of the current President. women in our society. understand the perspectives of others. When considering a potential Supreme Beyond the principle of gender diver- Out of their genius, the Framers cre- Court Justice, we must look beyond sity, Justice O’Connor consistently de- ated a system of checks and balances. the politics of our time and we must fined the center of the Supreme Court The Framers made rules which require protect the basic structure, the system on many issues. She used her wisdom that the power must be shared. They of checks and balances among coequal and her judgment to advance reason- created a system with three coequal branches. Administrations of varied able, commonsense, and mainstream branches. They then distributed the ideology and vision must recognize legal doctrines that affect the lives of powers of Government among and that system of checks and balances. all Americans. That is why the choice within the three branches. They cre- I briefly want to turn to civil rights. When I rose on this floor on Sep- of the replacement for Justice O’Con- ated a system with explicit and im- tember 27 of last year to speak on be- nor is so important for our collective plicit limits for the power of each half of Chief Justice Roberts, I spoke of future. branch. They created a system where the ‘‘age of diversity’’ in this country. The confirmation of a Supreme Court the people who govern the United Justice is a solemn task. It is among I spoke of this country’s long history States are in constant tension with and of slavery and our lengthy struggles— the most important constitutional du- against each other, always limiting including our own Civil War—to put be- ties of the Senate. I have evaluated and checking excesses that are all too hind us the unequal treatment of our Judge Alito’s qualifications using the human. citizens. same criteria I used to evaluate Chief Judge Alito’s judicial philosophy will I talked about Brown v. Board of Justice John Roberts for whom I voted. diminish our system of checks and bal- Education and the central role our Su- I have reviewed Judge Alito’s record ances. He will expand the powers of the preme Court played to guide our coun- for evidence of his fairness, impar- executive branch to an extent that is try on to the path of equality and tiality, and his proven record of up- dangerous to us all. I believe Judge equal treatment for all. I spoke of the holding the law. However, I have de- Alito would grant the Executive power growing diversity of people in our cided that my concerns require that I to overwhelm the congressional and ju- country, and of the need to foster all vote against him. dicial branches. the powerful strengths our diversity My concerns with Judge Alito start Let me cite a few examples from his brings to our Nation—a richness of cul- with the 1985 memorandum he included record. tures and spirit, a wealth of ideas, and with his job application to the White First, I am troubled by Judge Alito’s a widely varied community bound to- House. Judge Alito was then 35 years 1984 brief in the Mitchell case in which gether by the common values of truth, old. To me, this document is a very he asserted absolute immunity for high honesty, and fair dealing among our- powerful document. It is evidence of Government officials accused of illegal selves. how Judge Alito the man views the law wiretapping. My life experiences and my years of and the Supreme Court. The document I am troubled by his support in 1986 public service convince me that recog- is very carefully written. It is packed for the idea that Presidential signing nizing and encouraging the strengths full of Judge Alito’s political and juris- statements—a President’s remarks ac- of diversity is the true constitutional prudential ideas which he has adhered companying the signing of a bill—can path for our country. I also believe in to over the years. In that memo- change the intent of Congress, which the very practical wisdom of this ap- randum, Judge Alito declared he debated and passed the bill into law. A proach. In fact, I believe it is the only strongly disagreed with the opinions of President executes the law; a President way our country will thrive and pros- the Warren Court. Those opinions are does not rewrite or alter the law. per over the long run. I will vote now and then widely accepted. They I am troubled by Judge Alito’s firm against Judge Alito because I am con- encompass important constitutional belief in a unitary executive—in an un- vinced he is unlikely to support these protections such as opinions on re- willingness to acknowledge checks and principles of diversity. apportionment in Baker v. Carr, the balances that exist within the execu- Here is only a small part of the evi- case that established the principle of tive branch itself. dence that Judge Alito will lead our one person, one vote. They concern I am troubled by Judge Alito’s pat- Nation in the wrong direction on issues well-established rules about the rela- tern of great deference to the executive of equal opportunity and diversity: tionship between church and state. I branch. Judge Alito’s judicial philos- In Riley v. Taylor, Judge Alito was find Judge Alito’s views to be outside ophy in this area is particularly strik- overturned by the entire Third Circuit the mainstream of legal thought in ing against the backdrop of current when he, alone, concluded it was proper 1985. events. The current administration has to exclude all Black jurors from sitting Since that time, based upon his deci- adopted a widespread, concerted legal in judgment of a Black man. sions as an appellate judge and in his strategy to increase Executive power In Sheridan v. E.I. DuPont de Ne- other writings, Judge Alito has ruled under our Constitution. It is wrongly mours, Judge Alito registered the lone consistently with the legal philosophy pushing beyond the well-established dissent among 13 judges, voting to pre- he described in 1985. I believe that legal edges of Executive power in many vent a woman who had presented evi- philosophy is wrong for our Nation. cases, based on a carefully calculated dence of employment gender discrimi- Specifically, I believe Judge Alito’s position that the current concentra- nation from going to trial. legal philosophy about the structure of tion of political power allows the exec- In PIRG of New Jersey, Judge Alito our government under our Constitution utive branch to transcend the rule of again denied access to the courts for a will harm our country if ultimately law. This is not a ‘‘strict construction’’ group of environmental plaintiffs who adopted by the Supreme Court. of our Constitution; it is the opposite. had won below. The Framers of our Constitution It is an activist legal strategy to ex- In Doe v. Groody, Judge Alito would were geniuses. They created a legal pand beyond reason our constitutional have upheld the strip search of a 10-

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00037 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.059 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S182 CONGRESSIONAL RECORD — SENATE January 26, 2006 year-old girl, denying her access to re- Constitution. Judge Alito advocated this opinions written during his tenure on the lief in the courts. view in a memo he wrote in 1986 regarding United States Court of Appeals for the Third And in Chittester, Judge Alito would FBI activities. In a Nov. 29 Washington Post Circuit, the CHBA is concerned that Judge have precluded State employees from article that focused on this 1986 document, Alito has not displayed sufficient respect for even the very conservative constitutional two fundamental legal principles: (1) the role seeking damages in court under the analyst Bruce Fein, who served with Judge of the jury to resolve disputed questions of Federal Medical Leave Act. Alito in the Reagan administration, seemed fact; and (2) the restraints that stare decisis Analyses discussed during the Judici- surprised by how extreme Judge Alito’s posi- imposes upon a judge’s decision-making. ary Committee hearing show Judge tion was. ‘‘He seems to be saying that there Both of these principles recognize the impor- Alito almost never ruled for African is no constitutional constraints [sic] placed tant—but limited—role that an individual Americans in employment discrimina- on U.S. officials in their treatment of non- judge plays in our justice system. Judge tion cases. Analyses also show Judge resident aliens or illegal aliens,’’ Fein told Alito’s resistance to these tenets is troubling and counsels against his confirmation to the Alito rarely sided with individuals in the Post. ‘‘Could you shoot them? Could you torture them? . . . It’s a very aggressive highest court in the land. Although a de- their cases against large and powerful reading of cases that addressed much nar- tailed discussion of Judge Alito’s writings is institutions and corporate interests. rower issues.’’ beyond, thee scope of this message, the I believe Judge Alito will continue to This is part of a deeply disturbing pattern CHBA offers a few examples to illustrate its rule that way on the U.S. Supreme of rulings and memos from Judge Alito’s concerns. Court. I think that is wrong because it record indicating that he gives great def- In a 1996 case brought under Title VII of will usher in an era of insensitivity to erence to the government’s police powers the Civil Rights Act of 1964, an employee al- and shows little concern for protecting the leged that her employer had discriminated the weakest and the poorest among us. against her on the basis of sex. Sheridan v. I hope and I pray I am wrong. rights of individuals. He has tried to make it harder for people who believe they have E.I. DuPont de Nemours & Co., 100 F.3d 1061 In conclusion, I believe Judge Alito faced discrimination on the job to even have (3rd Cir. 1996). At issue was the minimum will move the Supreme Court too far to their case heard in court. He has seen no evidentiary showing the plaintiff must make the conservative side of American legal problem in some cases with racial discrimi- in order to permit the jury to decide her jurisprudence. Judge Alito’s judicial nation on juries—or with keeping Spanish case. All of the reviewing judges agreed that philosophy will dangerously increase speakers off juries in a case where some evi- the plaintiff had presented both a prima facie case of illegal discrimination and Executive power, injuring the checks dence was in Spanish. He has also tried to undermine the Family and Medical Leave enough evidence to permit the jury to dis- and balances built into our Constitu- believe the employer’s proffered nondiscrim- tion to protect us all. Act, which allows people to keep their jobs and take care of family members in need. inatory reason (for the adverse employment And Judge Alito’s confirmation will Three times, President Bush has passed up action) as merely a pretext. In an en banc roll back important civil rights protec- the opportunity to nominate a Latino to the proceeding, the Third Circuit held, by an 11- tions—protections that were achieved Supreme Court. At the very least, we had to-1 vote, that the plaintiff presented suffi- cient evidence to permit the jury’s verdict in in our country through the sacrifices of hoped he would avoid nominating someone her favor to stand. The court emphasized hostile to the basic interests of our commu- many and which are critical to our Na- that ‘‘determining whether the inference of nities, but it appears Judge Alito may be tion’s future. discrimination is warranted must remain such a nominee. That Judge Alito has actu- I, therefore, will vote against this within the province of the jury . . . not the ally expressed views so extreme that they nomination. court.’’ Id. at 1071–72. Alone among the 12 would deprive many immigrants of basic Mr. President, I ask unanimous con- judges, Judge Alito dissented and expressed human rights is extremely troublesome. an extreme view of the plaintiff’s evi- sent that two letters be printed in the Such views are legally wrong, and they run dentiary burden, requiring something akin RECORD concerning Judge Alito. One is counter to our basic moral values. a letter from the League of United Our rights are too important to entrust to to the largely discredited ‘‘pretext-plus’’ re- Latin American Citizens, and the other someone who has seemingly indicated he quirement. Id. at 1070, 1078–88. Rather than defer to the jury’s role as factfinder, Judge is a letter from the Colorado Hispanic thinks they don’t exist. We urge you to hold Judge Alito responsible for his views, and to Alito would have thrown out the jury’s ver- Bar Association, in which they raise dict and granted judgment as a matter of law their opposition to the confirmation of take our strong concerns into account when you vote on whether to confirm him to the to the employer. In another Title VII case, Judge Alito, Judge Alito. Supreme Court. again in dissent, showed similar disregard There being no objection, the mate- Sincerely, for the jury’s role, voting to keep the case rial was ordered to be printed in the Center for New Community. from the jury. Bray v. Marriott Hotels, 110 RECORD, as follows: Hispanic Association of Colleges and Uni- F.3d 986 (3rd Cir. 1997). Referring to Judge LEAGUE OF UNITED versities. Hispanic Federation. Alito’s analysis of the evidence, the majority LATIN AMERICAN CITIZENS, of the court explained that a ‘‘factfinder may Washington, DC, January 13, 2006. The PRLDEF Institute for Puerto Rican Policy. well agree with that interpretation, but that Re Nomination of Samuel A. Alito to the is not for us to decide.’’ Id. at 992. His fellow United States Supreme Court Latino Caucus in Official Relations with the American Public Health Association. judges also found that ‘‘Title VII would be Hon. ARLEN SPECTER, Labor Council for Latin American Ad- eviscerated’’ under Judge Alito’s analysis of Chairman, Committee on the Judiciary, vancement. the law. Id. at 993. Dirksen Senate Office Building, Washington, League of United Latin American Citizens. Moreover, Judge Alito has displayed a DC. National Farm Workers Ministries. tendency to disregard stare decisis (adher- Hon. PATRICK LEAHY, National Hispanic Environmental Council. ence to the rule announced in prior cases). Ranking Member, Committee on the Judiciary, National Latina Institute for Reproductive For example, in a death penalty case, the en Dirksen Senate Office Building, Washington, Health. banc Third Circuit granted the defendant a DC. National Latina-o Law Students Associa- writ of habeas corpus because the prosecu- DEAR SENATORS: We write to you as rep- tion. tion had violated the Equal Protection resentatives of the millions of American National Network for Immigrant and Ref- Clause by striking black jurors on account of members of the immigrant, Latino, and faith ugee Rights. their race. Riley v. Taylor, 277 F.3d 261 (3rd communities who are extraordinarily con- National Day Laborers Organizing Net- Cir. 2001). The court noted that its analysis cerned about the nomination of Judge Sam- work. was guided by several prior opinions. See id. uel Alito to the Supreme Court. We believe SisterSong Women of Color. at 290. Judge Alito dissented again. Accord- that all Americans should be able to count Reproductive Health Collective. ing to his colleagues, Judge Alito, rather on the Supreme Court to uphold their rights, United Farm Workers of America. than following precedent, ‘‘accord[ed] little opportunities, and legal protections, and we weight to these authorities.’’ Id. The court are worried that Judge Alito’s record dem- CHBA, COLORADO HISPANIC BAR also took issue with Judge Alito’s attempt onstrates that millions of Americans would ASSOCIATION, to analogize the statistical evidence of the not be able to count on him or the Court if January 10, 2006. use of peremptory challenges to strike black he were confirmed. Senator KEN SALAZAR, jurors to the percent of left-handed presi- While we have many concerns about Judge Hart Senate Office Building, dents. Id. at 292. The Third Circuit found Alito’s record, we are especially troubled by Washington, DC. that Judge Alito had ‘‘overlooked the obvi- recent reports that Judge Alito, during his DEAR SENATOR SALAZAR: The Colorado His- ous fact that there is no provision in the time in the Reagan administration, con- panic Bar Association (CHBA), expresses its Constitution that protects persons from dis- tended that undocumented immigrants and opposition to the confirmation of Samuel crimination based on whether they are right- nonresident aliens from other countries have Alito as Associate Justice of the United handed or left-handed.’’ Id. Further, his fel- limited or ‘‘no due process rights’’ under the States Supreme Court. After review of his low judges found that Judge Alito had

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00038 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.060 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S183 ‘‘minimize[d] the history of discrimination that the Supreme Court will consider greater protection of individual rights against prospective black jurors and black in the coming years will involve the than the majority. defendants which was the raison d’etre of the Government’s conduct of the fight In one case that he was asked about [U.S. Supreme Court decision barring the use against terrorism. It is critical that we on several occasions at his hearing, of peremptory challenges on the basis of race].’’ Id. have a strong and independent Su- Judge Alito, in dissent, argued that the These are but a few examples of Judge preme Court to evaluate these issues strip search of a 10-year-old girl and Alito’s seeming reluctance to recognize the and to safeguard the rights and free- her mother passed constitutional mus- limits of stare decisis and his willingness to doms of Americans in the face of enor- ter, even though they were not sus- invade the jury’s province. Judge Alito’s mous pressures. pected of any crime or specifically opinions reveal a consistent and discom- Confronted with an executive branch mentioned in the search warrant. forting inclination to arrogate undue author- that has jealously claimed every pos- Judge Alito’s answers to questions at ity to individual judges such as himself. sible authority that it can, and then the hearing about this case only rein- Judge Alito’ s activist streak stands in sharp contrast to the cautious pragmatism of Jus- some, the Supreme Court must con- forced concerns identified by outside tice Sandra Day O’Connor, whom he would tinue to assert its constitutional role scholars that he seems to ignore the se- replace on the Court. as a critical check on Executive power. rious interests of privacy and personal The CHBA is particularly troubled by the Just how ‘‘critical’’ that check is has dignity protected by the fourth amend- addition of Judge Alito’s unrestrained view been made clear over the past few ment and instead relies on technical of judicial authority to a Supreme Court on weeks, as Americans have learned that readings of warrants so that he can au- which Hispanics are not represented. Given the President thinks his Executive thorize the government action. that the Hispanic community has no direct power permits him to violate explicit Cases challenging government power voice on the Court, Hispanics should be very concerned if the Court were to embark on an criminal statutes by spying on Ameri- comprise nearly half of the current Su- era in which it feels free to upset settled law cans without a court order. preme Court’s docket. A Supreme and to assume new powers within our justice With the executive and the legisla- Court Justice should protect individual system. Hispanics expect this institution to ture at loggerheads, we may well need freedoms against government intrusion operate within the well-recognized limits on the Supreme Court to have the final where justified, and, specifically, its authority. Accordingly, unless and until word in this matter. In times of con- should appreciate that the fourth Judge Alito sufficiently addresses the con- stitutional crisis, the Supreme Court amendment serves to limit government cerns outlined herein, the CHBA opposes his can tell the executive it has gone too power. As Yale Law School Professor elevation to the United States Supreme far, and require it to obey the law. Yet Court. Ronald Sullivan testified: Thank you for your kind consideration of Judge Alito’s record and testimony In the United States, perhaps no right is our message as you perform the Senate’s strongly suggest that he would do what more sacred—more worthy of vigilant pro- constitutional duty to evaluate carefully the he has done for much of his 15 years on tection—than the right of each and every in- nominees to the Court. the bench: defer to the executive dividual to be free from government inter- Sincerely, branch in case after case at the expense ference without the ‘‘unquestionable’’ au- thority of the law. Judge Alito . . . shows an VICTORIA LOVATO, of individual rights. President. inadequate consideration for the important Although he has not decided cases values that underwrite these norms of indi- Mr. FEINGOLD. Mr. President, mak- dealing with the Bill of Rights in war- vidual liberty—the very norms upon which ing a decision on a Supreme Court time, he has a very long record on the this constitutional democracy relies for its nomination is truly among the most bench of ruling in favor of the govern- sustenance. . . . [T]his Senate’s decision on important responsibilities of the Sen- ment and against individuals in a vari- whether to consent to Judge Alito’s nomina- ate. I have given the nominations the ety of contexts. Indeed, this is an im- tion will profoundly impact how liberty is President has sent to us in the past 6 portant distinction between Judge realized in the United States. months serious and careful consider- Alito and Chief Justice Roberts. Our At the hearing, I and many other ation. new Chief Justice had a very limited Senators repeatedly asked Judge Alito The scrutiny to be applied to a Presi- judicial record before his nomination. whether the President can violate a dent’s nominee to the Supreme Court Judge Alito has an extensive record. clear statutory prohibition, such as the is the highest of any nomination. I There is no better evidence of what Foreign Intelligence Surveillance Act have voted for executive branch ap- kind of Justice he will be on the Su- and the ban on torture. He never an- pointees, and even for court of appeals preme Court than his record as a court swered the question. He returned again nominees, whom I would not nec- of appeals judge. He told us that him- and again to a formulaic response that essarily vote to put on the Supreme self. told us nothing at all: he said that the Court. A whole series of analyses by law President must follow the Constitution The Supreme Court, alone among our professors and news organizations has and must follow the laws that are con- courts, has the power to revisit and re- shown that Judge Alito is very deferen- sistent with the Constitution. Any verse its precedents, and so I believe tial toward the government, and one first-year law student could tell you that anyone who sits on that Court detailed analysis by the Washington that. That kind of stock phrase, which must not have a preset agenda to re- Post concluded that he is more deferen- Judge Alito repeated over and over, verse precedents with which he or she tial than his Third Circuit colleagues tells us absolutely nothing about his disagrees and must recognize and ap- and even than Republican-appointed view of whether the President can, con- preciate the awesome power and re- appeals judges nationwide. This vividly sistent with the Constitution, violate a sponsibility of the Court to do justice demonstrates the concern I have about criminal law. when other branches of Government in- this nomination. Judge Alito is not Judge Alito did point to Justice fringe on or ignore the freedoms and simply a conservative judge appointed Jackson’s three-part analysis in rights of all citizens. by a conservative President. His record Youngstown. That is an appropriate This is not a new standard. It is the is that of a jurist with a clear inclina- framework, but merely citing Youngs- same standard I applied to the nomina- tion to rule in favor of the government town doesn’t tell you anything about tion of Chief Justice Roberts. In that and against individual rights. how he would apply that framework. case, after careful consideration, I de- In particular, Judge Alito’s record in Even when presented with the alarm- cided to vote in favor of the nomina- fourth amendment cases shows a recur- ing hypothetical of whether a Presi- tion. In the case of Judge Samuel ring pattern. In almost every fourth dent can authorize a murder in the Alito, after the same careful consider- amendment case in which Judge Alito United States, Judge Alito would say ation, I must vote no. wrote an opinion, he either found no no more. Judge Alito has an impressive back- constitutional violation or argued that These practiced and opaque responses ground and a very capable legal mind, the violation should not prevent the il- gave me no reassurance about Judge but I have grave concerns about how he legally obtained evidence from being Alito’s views on these issues. What would rule on cases involving the appli- used. In more than a dozen dissents in troubled me even more was that he re- cation of the Bill of Rights in a time of criminal or fourth amendment cases, peatedly, and in some cases gratu- war. Some of the most important cases not once did Judge Alito argue for itously, raised issues of justiciability

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00039 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.033 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S184 CONGRESSIONAL RECORD — SENATE January 26, 2006 and the political question doctrine— Judge Alito’s record and response First, it is not clear to me that Judge that is, he seemed to question whether suggest that he analyzes death penalty Alito took his 1990 promise to the Judi- the courts can even weigh in on these appeals as a series of procedural hur- ciary Committee seriously. Second, serious legal battles between the legis- dles that inmates must overcome, rath- Judge Alito failed to clear up the in- lature and the executive. Although he er than as a critical backstop to pre- consistent explanations before or at said he thought the courts could ad- vent grave miscarriages of justice. The the outset of his hearing, even after dress questions involving individual Supreme Court plays a very unique documents revealed that those expla- rights, Judge Alito’s instinct in dis- role in death penalty cases, and Judge nations were implausible and even cussing these historic issues was to Alito left me with no assurance that he though he knew that they were not the focus on whether the courts even had a would be able to review these cases real reasons that he failed to recuse role to play. It wasn’t to talk about the without a weight on the scale in favor himself in 2002. gravity of the issues at stake for our of the government. The concept of recusal, which recog- system of government, but to question One important question that I had nizes that from time to time the public whether he as a judge could even par- about Judge Alito was his view on the might reasonably believe that judges’ ticipate in the resolution of such crit- role of precedent and stare decisis in biases or interests may cast doubt on ical constitutional conflicts. our legal system. At his hearing, while the integrity of a judicial decision, is I found that very disturbing, and it restating the doctrine of stare decisis, part of ensuring due process and pro- has played a significant role in my de- Judge Alito repeatedly qualified his tecting the public’s confidence in the cision to vote against him. Judge answers with the comment that stare integrity of our system of justice. De- Alito’s record and his testimony have decisis is not an ‘‘inexorable com- spite numerous other reports of Judge led me to conclude that his impulse to mand.’’ While this is most certainly Alito’s honesty and integrity, I am not defer to the executive branch would true, his insistence on qualifying his satisfied that he appreciates the impor- make him a dangerous addition to the answers with this formulation was tance of recusal. Supreme Court at a time when cases troubling. Combined with a judicial His written answer to my question involving executive overreaching in record in which fellow judges have about how he would analyze recusal the name of fighting terrorism are criticized his application of precedent motions related to the Third Circuit likely to be such an important part of in several cases, Judge Alito’s record judges who testified on his behalf the Court’s work. and testimony do not give me the same raises concerns about his approach to I am also concerned about Judge comfort I had with Chief Justice Rob- conflicts of interest. Judge Alito wrote Alito’s record and testimony on cases erts that he has the respect for and def- that he thinks Supreme Court Justices involving the death penalty. The Su- erence to precedent that I would like have ‘‘less latitude to err on the side of preme Court plays a crucial role in to see in a Supreme Court Justice. recusal’’ than other judges, because death penalty cases. Judge Alito par- With respect to reproductive rights, recusal could lead to evenly divided de- Judge Alito said that he would look at ticipated in five death penalty cases cisions. But when Congress amended any case with an ‘‘open mind.’’ That that resulted in split panels, and in the Federal recusal law in 1974, it spe- promise, however, is not reassuring every single one of those he voted cifically removed any so-called ‘‘duty given his prior denunciations of Roe, against the death row inmate. A Wash- to sit’’ in favor of a general standard his legal work to undermine Roe, and ington Post analysis found that he his failure to disavow the strong legal requiring recusal if there is a reason- ruled against defendants and for the views he had expressed in the 1980s able basis for doubting the judge’s im- government in death penalty cases sig- when given the opportunity at his partiality. The purpose of that change nificantly more often than other hearing. In his 1985 Justice Department was to enhance public confidence in the judges. And his testimony gave me no job application, Judge Alito wrote that impartiality and fairness of the judi- reason to believe that he will approach he believed that the Constitution does cial system. In my view, Supreme these cases any differently as a Su- not protect a right to abortion, and, as Court Justices should have no more preme Court Justice. an Assistant to the Solicitor General, latitude in interpreting ethics rules To be blunt, I found Judge Alito’s an- he wrote a memo advocating a strategy than other judges; indeed, the recusal swers to questions about the death pen- for the Reagan administration to chip statute specifically applies to Supreme alty to be chilling. He focused almost away at Roe v. Wade, with the ulti- Court Justices. entirely on procedures and deference to mate goal of overturning that decision. I would argue that treating recusal state courts, and didn’t appear to rec- Since he refused to say that he changed issues seriously is even more important ognize the extremely weighty constitu- his mind, despite numerous chances, for Supreme Court Justices since they tional and legal rights involved in any one can only think that he still be- are solely responsible for their recusal case where a person’s life is at stake. lieves what he said in 1985. And his decisions. There is no judicial review of I was particularly troubled by his re- opinions as a Third Circuit judge raise their decisions, no formal procedure for fusal to say that an individual who a legitimate concern that he will, if the full Court review of such decisions, went through a procedurally perfect given the opportunity, be inclined to and, when a Justice improperly partici- trial, but was later proven innocent, narrow reproductive rights. pates, a tainted constitutional decision had a constitutional right not to be ex- I want also to say a brief word about cannot be undone. That is why it is so ecuted. The Constitution states that no ethics. The Vanguard case could have important to have Justices who adhere one in this country will be deprived of been disposed of fairly easily if Judge to the highest ethical standards. Judge life without due process of law. It is Alito had only admitted his mistake up Alito repeatedly told us that he seeks hard to even imagine how any process front. Under questioning, Judge Alito to carry out his duties in accordance that would allow the execution of finally admitted that there is no evi- with both the letter and spirit of all someone who is known to be innocent dence that he followed through on his applicable rules of ethics and canons of could satisfy that requirement of our 1990 promise to the Judiciary Com- conduct. He wrote in a letter to the Bill of Rights. I pressed Judge Alito on mittee to recuse himself from any chairman of the Judiciary Committee: this topic but rather than answering cases involving Vanguard. He also said ‘‘[M]y personal practice is to recuse the question directly or acknowledging that some of the explanations that he myself when any possible question how horrific the idea of executing an and his supporters gave for his failure might arise.’’ Unfortunately, his de- innocent person is, or even pointing to to recuse from the Vanguard case in scription of how he would handle the House v. Bell case currently pend- 2002—such as a ‘‘computer glitch’’ or recusal motions as a Supreme Court ing in the Supreme Court on a related the fact that his promise to the com- Justice does not seem consistent with issue, Judge Alito mechanically laid mittee was somehow time-limited— those statements. out the procedures a person would have were not in fact the true reasons that It gives me no pleasure or satisfac- to follow in State and Federal court to he failed to recuse himself from the tion to vote against a nominee to the raise an innocence claim, and the pro- 2002 case. Supreme Court. If confirmed, he may cedural barriers the person would have While I am not basing my vote on well serve for over 20 years. I would to surmount. this matter, it continues to trouble me. very much like to have confidence that

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00040 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.036 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S185 this new Justice, who plainly has a Judge Alito has served in the U.S. De- vides no guidance as to what exactly keen legal mind, would be the kind of partment of Justice, has been a U.S. Senators should take into account. impartial, objective, and wise Justice Attorney, and for the last 15 years has This decision is up to each individual that our Nation needs. But I do not, so been a judge on the Third Circuit Court Senator. I have already touched on one I will vote no. of Appeals. However, while I use this factor I consider, ‘‘qualified and capa- Mr. JEFFORDS. Mr. President, there minimum standard in my evaluation of ble of handling the duties of the posi- is no higher legal authority in the executive branch nominees, there are tion.’’ United States than the U.S. Supreme additional factors to be considered in Court. It is the final arbiter on the my evaluation of a judicial nominee. An additional consideration is the ju- meaning of laws and the U.S. Constitu- The Framers of our Constitution rec- dicial philosophy of the nominee. Many tion. The Supreme Court gives mean- ognized the limits of democracy and of my colleagues argue that this factor ing to the scope of the right of privacy; created three coequal branches of gov- should have no part in the Senate’s whether Vermont’s limits on campaign ernment. They realized that passion consideration of a nominee to the Su- contributions and spending are con- and whim could cause the elected rep- preme Court. However, if judicial phi- stitutional; what is an unreasonable resentatives to enact legislation on the losophy is the determining factor in search and seizure; how expansive the cause of the day, which treads near or the choice the President makes from a power of the President can be; and on constitutional rights. In addition, list of many qualified candidates, the whether Congress exceeded its power in while the diversity of Congress can Senate should also be allowed to con- passing a law. stop most of these ideas before they are sider this factor when deciding whether A Supreme Court Justice could serve adopted, no such check exists on the to approve or disapprove the nominee. for the life of the nominee, thus the executive branch of our government. Not allowing the Senate to consider consequences of confirming a Supreme Thus, the third branch of government, this factor would shift the careful bal- Court justice last well beyond the term the judiciary, was created. This branch ance the Framers put in our Constitu- of the President who makes the nomi- was to be independent, unaffected by tion away from equal partners toward nation, a Senator’s term, and maybe the public’s whim and opinion, and giving the executive branch an unfair even the Senator’s own life. Therefore, serving the law and the public. advantage. one of the most important votes a Sen- The Framers split the responsibility ator takes is the confirmation of a U.S. of filling the judiciary between the ex- In addition to considering the indi- Supreme Court Justice. ecutive and legislative branches. The vidual’s judicial philosophy as a stand- I have carefully considered the ap- President nominates an individual to alone matter, we must also consider pointment of Judge Samuel Alito to be a judge, while the Senate has the the cumulative effect our approving a the Supreme Court and have concluded duty to advise and consent on each nominee will have on the Supreme I cannot support his nomination. nominee. This framework was estab- Court. In the recent past, Republican My first step in evaluating a nominee lished to ensure that the executive Presidents have made 15 of the last 17 is to consider whether the nominee is branch could not exercise so much con- nominations to the Supreme Court. appropriately qualified and capable of trol over the nominating process that The Republican stamp on the current handling the position for which he or the judiciary would lose its independ- Court is undeniable. Consider the pros- she has been nominated. Looking over ence and become ideologically driven. pects for the Court in the coming years Judge Alito’s qualifications, it is clear While the Senate’s duty is to evalu- based on the ages of the sitting Jus- this minimum standard has been met. ate a nominee, the Constitution pro- tices and their years of service:

Justice Date of birth Current age Years on court Appointment age

Stevens ...... April 2O, 1920 ...... 85 30 55 Ginsburg ...... March 15, 1933 ...... 72 12 60 Scalia ...... March 11, 1936 ...... 69 19 50 Kennedy ...... July 23, 1936 ...... 69 17 52 Breyer ...... Aug. 15, 1938 ...... 67 11 56 Souter ...... Sept. 17, 1939 ...... 66 15 51 Thomas ...... June 28, 1948 ...... 57 14 43 Roberts ...... Jan. 27, 1955 ...... 50 <1 50

This information clearly shows that the right to an abortion must have an nomination hearing and I voted for the prospects of the Court becoming exception for the mother’s health. Justice Roberts. Given the importance more moderate in the near future are Tennessee v. Lane (2004): The Court of a Supreme Court Justice replacing unlikely, as the more liberal to mod- held that as part of its enforcement Sandra Day O’Connor, we should ex- erate members are the more likely to power under the 14th amendment, Con- pect even more complete answers than be replaced. gress has the right under the Ameri- we received from Judge Alito. The table also clearly lays out a con- cans with Disabilities Act to force After careful deliberation, I have cern about the shift in the balance of States to provide physical access to the concluded that the addition of Judge the court by replacing Justice O’Con- courts. Alito to the Supreme Court would un- nor with a younger, more conservative McConnell v. Federal Election Com- acceptably shift the balance of the Justice. mission (2003): The Court upheld as a Court on many critical questions fac- This concern is also made clear by valid exercise of congressional power ing our county: Are there limits on the looking at some important cases where the soft money and electioneering com- power of the presidency? Can the Con- Justice O’Connor provided the critical munications restrictions enacted by fifth vote for a moderate, common Congress as part of the Bipartisan gress regulate the activities of the sense position. These cases include: Campaign Reform Act of 2002. States? How expansive is the right to Alaska Department of Environ- Upon this backdrop, I have evaluated privacy? What deference should be mental Conservation v. EPA (2004): The the decisions and writings of Judge given to legislative acts of the Con- Court held that the Environmental Alito, closely watched the nomination gress? While many of my colleagues Protection Agency can enforce the hearing in the Senate Judiciary Com- will disagree with my assessment of Clean Air Act and overrule a State de- mittee, and listened to the statements Judge Alito, this will be a lifetime ap- cision to allow a major pollutant emit- of many colleagues on his nomination. pointment and a lifetime is too long to ting facility to build a power generator I am concerned that Judge Alito did be wrong. when the State agency is not doing an not provide complete answers on many Mr. JOHNSON. Mr, President, there adequate job of enforcement. important topics such as: Is Roe set- are few decisions of more lasting and Stenberg v. Carhart (2000): The Court tled law, or what are the limits of the profound consequence that a U.S. Sen- upheld the principles that, before via- executive branch’s power? On the other ator must make than the decision bility, women can choose to have an hand, Chief Justice Roberts did provide whether to vote to confirm a nominee abortion, and that any restriction on answers to these questions during his to a lifetime appointment to the U.S.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00041 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.037 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S186 CONGRESSIONAL RECORD — SENATE January 26, 2006 Supreme Court. Accordingly, I have re- vote. If there are no further speakers bate the nomination through the week- viewed the record and the commentary for the proceedings, then it would be end if Senators have additional com- relative to the Samuel Alito nomina- my inclination we ought to follow reg- ments or have not yet delivered their tion with great care and deliberation. ular order, we ought to vote. Either we statements. The decision on the Alito nomination speak or we vote. So long as there is Now, Mr. President, I am glad to is more difficult than was the case for somebody to speak, there is the right yield to my distinguished colleague, now Chief Justice John G. Roberts in- of unlimited debate, as we all know, Senator REID. asmuch as Judge Alito’s long record and we respect that. The PRESIDING OFFICER. The raises concerns across a broad range of This is a lifetime appointment, and it Democratic leader. areas. Clearly, he would not have been is a controversial appointment. There Mr. REID. Mr. President, reserving my pick for the Supreme Court. is no doubt about that. But if we are the right to object, we have seven Nonetheless, I must conclude that not going to have debate, then, in my speakers lined up this afternoon. We Judge Alito possesses a high level of capacity as manager, as chairman of hope they will all show up. I am con- legal skill, is a man of solid personal the Judiciary Committee, it seems to fident they will. integrity, and that his views fall with- me we ought to vote. We have a lot of LIHEAP is something the distin- in the mainstream of contemporary other pressing business for the Senate. guished majority leader and I have spo- conservative jurisprudential thinking. I have just left the conference of the ken of several times. We know it is an At the conclusion of Senate floor de- Republican Party where there had been important issue. We have made com- bate, I will oppose any effort to fili- a plan, months ago, to be out of town mitments to the Senator from Maine, buster his nomination, and I will vote so we could make plans for the second Senator SNOWE, and the Senator from to confirm Judge Alito’s nomination to session of this Congress. Because the Rhode Island, Senator REED. It is the Supreme Court. nomination of Judge Alito is on the something we need to do as soon as we While it is not the role of the Senate floor, we have altered those plans, I can. to ‘‘rubberstamp’’ any President’s judi- might say at considerable financial In regard to the PATRIOT Act, I had cial nominations, it is also true that loss since reservations had been made. a number of conversations, again, with any President’s choice deserves due But our duty is to be here, and we are the distinguished majority leader. deference. Judge Alito deserves the not complaining about that. We are Also, I spoke yesterday afternoon to same deference that Republican Sen- here to move the business of the Sen- Senator SUNUNU, who indicated he has ators accorded the Supreme Court ate along. been in conversations with the White nominees of President Clinton. I am There are a number of pressing mat- House and is confident he is not far mindful that Justice Ginsberg, a ters which we could take up tomorrow away from working out that matter former counsel to the ACLU, was con- or yet today, such as the issue of ap- with the other interested parties, one firmed with 96 Senate votes in her propriations of some $2 billion for of whom is, of course, the chairman of favor. LIHEAP. That is a matter for assist- the Judiciary Committee. I do not believe that simple political ance for fuel in a cold winter. It is a I also have had a number of conversa- ideology ought to be a deciding factor cold day out there today. It is cold in tions with the distinguished majority so long as the nominee’s views are not Pennsylvania. It is colder in Vermont. leader as to how we should move for- significantly outside the mainstream It is colder yet in Maine. We need to re- ward on the matter relating to Judge of American legal thinking. I also be- solve that issue. Alito, and there are a number of possi- lieve that the judicial nomination and We also have the PATRIOT Act, bilities. I think we are at a point now confirmation process in recent years which is due to expire on February 3, a where we may well enter into a unani- has become overly politicized to the week from tomorrow. That is a very mous consent later today. I would hope detriment of the rule of law. important matter both for security in so. I am troubled by Judge Alito’s appar- our law enforcement fight against ter- Based on that, and based on the fact ent views on matters such as Executive rorism and also for a balance on civil I have not spoken to Senator FRIST yet power, his past opposition to the prin- rights. And we now have a motion to today—we spoke several times yester- ciple of one person, one vote, and his reconsider the cloture vote pending be- day—I object. narrow interpretation of certain civil fore the U.S. Senate. The PRESIDING OFFICER. Objec- rights laws. Even so, I cannot accept There have been discussions about tion is heard. The Senator from Penn- an argument that his views are so rad- what to do. It is my hope that we sylvania. ical that the Senate is justified in de- would yet approve the conference re- Mr. SPECTER. Mr. President, may I nying his confirmation. port. We face the alternative of having inquire of the distinguished Demo- The PRESIDING OFFICER (Mr. EN- the PATRIOT Act expire, which no one cratic leader whether there will be SIGN). The minority’s time has now ex- wants. We have the suggestion made speakers on his side of the aisle to pired. for a 4-year extension of the current speak tomorrow, Friday, or Saturday, Who yields time? PATRIOT Act which, in my view, is or Sunday, or Monday, if we are to re- The Senator from Pennsylvania. much less desirable than having the main in session without voting on this Mr. SPECTER. Mr. President, I have conference report enacted. The con- nomination? been asked by the majority leader to ference report on a new PATRIOT Act Mr. REID. Mr. President, I am happy come to the floor, as manager of the gives much more for civil rights than to respond to my friend. We will have proceedings, in my capacity as chair- does the existing act. It is not as good speakers tomorrow. The weekend will man of the Judiciary Committee, to as the Senate bill, the bill that came be another item. We will talk about see if we can have a vote on Judge out unanimously from the Judiciary that later, whether that is necessary. Alito. We have informed the Democrats Committee and was passed by unani- Mr. SPECTER. Mr. President, may I of our interest in having a unanimous mous consent, but the conference re- further inquire of the distinguished consent, but we will not ask for one port is a lot better than the current Democratic leader when his side of the until their leader is here. He is on his bill. So there are other important mat- aisle would be prepared to vote on the way, and I will await his arrival. In the ters that we could address. nomination? interim, the acting leader, Senator UNANIMOUS CONSENT REQUEST Mr. REID. As I indicated, I have spo- SALAZAR, is on the floor, so he can al- Now that the distinguished Demo- ken to the distinguished majority lead- ways protect their interests. But I cratic leader is on the floor, on behalf er on several occasions—not today. shall not move in a way precipitously of the majority leader, I ask unani- Yesterday we had a number of con- until Senator REID arrives. mous consent that at 5:30 on Monday, versations, in fact into the evening last I am advised we do not have any January 30, the Senate proceed to a night, and I think it would be best for speakers for the Democrats tomorrow. vote on the confirmation of the pend- Senator FRIST and me to talk about We are now in the second full day of ing nomination of Samuel Alito. this rather than now. our discussion. The rules of the Senate And before the Chair rules, I would Mr. SPECTER. I thank the Demo- require either that we speak or we reiterate that we are prepared to de- cratic leader for those comments. But

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00042 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.044 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S187 Senator FRIST, the majority leader, has Mr. SPECTER. It is all comparative. record. Quite honestly, if those same asked me to come to the floor. He is If I may direct this comment to Sen- critics chose to rely upon the facts engaged now in the Republican con- ator REID, you haven’t been to a Re- rather than the political sound bites, ference and has asked me to raise these publican conference. No matter how they might be quite surprised. issues so we can give some idea to our dull it is, let me tell you, it is lively Judge Alito has been viciously at- colleagues. We have a lot of Senators here. It is exciting here by comparison tacked by critics over his record on who are standing by as to what is going to what goes on in our Republican con- civil rights. As we all know, Judge to happen. We have a lot of Senators ference. I speak with authority because Alito serves on the Third Circuit Court who are not standing by. Quite a few of I just came from there. of Appeals. This appellate court in New them are overseas. Quite a few Sen- I thank my distinguished colleague Jersey has been described by the Asso- ators are always overseas. We have and the Chair and yield the floor for ciated Press as one of the most liberal more Senators overseas customarily some serious business because we have courts in the Nation. My guess is it is than in the Chamber. I think that is some speakers. probably only second, within that cat- certainly true now. We only have five The PRESIDING OFFICER. The Sen- egorization, to the Ninth Circuit Court. Senators in the Chamber. I know we ator from North Carolina. It seems that opponents of Judge Alito have a lot more Senators overseas. So Mr. BURR. Mr. President, I think it have become so fixated on criticizing a lot of Senators are trying to make is safe to say that Chairman SPECTER his record that they disregard the ac- their plans. has committed more time to the nomi- tual facts of his record. I came to make the point, and I made nation of Samuel Alito than any single When analyzing Judge Alito’s civil the point. person in this body and in this country, rights record based on the more than I thank the Senator. with the exception of one, and that 4,800 cases he has decided, the facts are Mr. REID. Mr. President, I appreciate would be Judge Alito. these: Judge Alito has agreed with the the Senator from Pennsylvania. I enjoy I rise today in support of the nomina- other members of his ‘‘liberal’’ Third my relationship with him. But the only tion of Samuel Alito to be Associate Circuit judicial panel 94 percent of the thing I would do is defend the Senate a Justice of the U.S. Supreme Court. time on civil rights issues. Judge Alito little bit. I know he was being face- Voting on the nomination of a Su- has agreed with judges appointed by tious. Senators are here in Washington. preme Court Justice is a rare event in President Clinton on that bench 95 per- There are a few Senators attending a the Senate, but this year this body has cent of the time on civil rights issues. very important economic conference in now considered two nominations in Judge Alito has agreed with judges ap- Switzerland, but that is a handful of only a few short months. To cast this pointed by Jimmy Carter on the Third Senators, three or four, as I understand vote is a privilege, and it is one this Circuit Court 96 percent of the time on it. I am glad they are there. I am con- Member takes seriously. Most Ameri- civil rights issues. Finally, when Judge fident that if any votes are required in cans did not know Sam Alito 6 months Alito sat on a three-judge panel where the near future—they have been ad- ago, but now millions of citizens have both other judges were appointed by vised and have agreed to come back in seen him in the news. They have heard Democratic Presidents, the decision a few hours’ notice. him answer countless questions during handed down in those cases was unani- As I said, I know the Senator was his confirmation hearing. We have mous 100 percent of the time on the being facetious, but we do not have learned a great deal about Judge Alito. civil rights cases. These are the facts. more Senators overseas than we have We have seen his family. We have lis- Those are the numbers. here ready to work. tened to his stories about his child- Clearly, by the standards some in Mr. SPECTER. Well, Mr. President, I hood. We have heard about his edu- this body have chosen to apply to did not say we had more Senators over- cational background, and we have Judge Alito, no judge on the Third Cir- seas than Senators prepared to work. I learned of his service on the bench. We cuit Court would therefore qualify to said we have more Senators overseas have learned that his temperament and be considered for the Supreme Court. than we have in the Chamber. I count- his character, are in fact solid. I per- The statistics are one example of the ed five, and now a sixth has joined on sonally have had the opportunity to sit distortion of Judge Alito’s record by the floor. with him, and I believe he respects the some. I could stand here on the floor Well, as I said earlier, I came to U.S. Supreme Court and the seat for for hours to discuss other misrepresen- make the point, and I have made the which he has been nominated. tations of Judge Alito’s record on indi- point. The point is that we either de- Americans have probably also heard vidual issues, but I believe it is impor- bate or we ought to vote. Debate or the Senate debate Judge Alito’s nomi- tant to speak on why this Supreme vote, that is what we do. When the de- nation. I would guess by now most Court confirmation should matter to bate is over, we vote. If the debate con- Americans understand that there is no the American people. tinues, we do not vote. If the debate substantive debate over Judge Alito’s When I say I am going to speak about continues, we may have to go to clo- qualifications for the Supreme Court. why this confirmation matters, I don’t ture. We have rules to accommodate us Clearly, Judge Alito has the legal mean that I am going to talk about there. There have been counts made qualifications to be an Associate Jus- why the debate matters in the daily that when you have the number of Sen- tice. He has remarkable academic cre- battles inside the beltway in Wash- ators who have stated their intention dentials, extensive experience, not only ington, DC. I want to speak about why to vote for cloture, plus the number of on the bench but in trying cases as an it matters to the American people. It Senators who have stated their inten- attorney, and he was given a unani- has become clear to me and to the 81⁄2 tion to vote for Judge Alito, you come mous ‘‘well qualified’’ rating by the million people in North Carolina that I to 60 or more. American Bar Association. He has ar- represent, that Washington, DC, is We are ready to do the business of gued cases before the Supreme Court, overshadowed by partisan bickering the Senate. I know Senator FRIST is and he served on the bench of the Third and is arguably more polarized now watching these proceedings because Circuit Court of Appeals for the past 15 than ever before. our conference, at a little after 3 years. As I discussed in this Chamber and in o’clock in the afternoon, reaches a lit- It is my assessment that those who front of this body when considering the tle low point, a little low on blood oppose Judge Alito’s nomination do it nomination of Chief Justice Roberts a sugar, things get a little sleepy. So I for purely political purposes. They be- few months ago, my constituents in am sure they turned on the television lieve he might take positions contrary North Carolina care about civil lib- to watch this. It would be my hope that to their own political ideologies. erties. They have questions about life the Republican leader and the Demo- Therefore, they believe he should be and death, property rights, basic free- cratic leader will be on the floor today, disqualified. He should not be consid- doms, as well as their own economic and we will come to some sort of a ered for a slot on the Supreme Court. prosperity and personal security. schedule so we all know what to do. Let me take a moment to provide an That is why this vote is important Mr. REID. I am not sure our con- example of how critics have severely today. The Supreme Court affects versation would wake them up, though. distorted the facts about Judge Alito’s every aspect of our daily lives. But

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00043 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.030 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S188 CONGRESSIONAL RECORD — SENATE January 26, 2006 more importantly, the decisions being nee, he is a good man. He deserves the cumstances of the case. He didn’t rule made on the High Court today will af- support of every Member of the Senate. against the little man, nor did he rule fect the lives of our children and future I will vote in favor of Judge Alito’s for the big guy; he ruled based on the generations yet to come. I am a father nomination to be an Associate Justice laws and the regulations promulgated and I am a husband first; I am a Sen- to the Supreme Court. I urge my col- by the agency this Congress appointed ator second. I believe while it is part of leagues in this body to join me and to to be over mine safety. That is pre- my job to vote on Supreme Court con- come together to stop the character as- cisely what we need—a Court that will firmations, I think of this vote in sassinations and to speak up for the show us direction, but a Court that will terms of how it will affect my family American people and the future of our never direct the laws we have passed in as well as the rest of the families in country. the wrong direction. North Carolina and across the country. I yield the floor. Secondly, there have been those who When my sons are my age, how will The PRESIDING OFFICER. The Sen- have talked about his commitment to this decision, my vote on Sam Alito, ator from Georgia. civil rights, or really his lack of com- affect them or eventually affect their Mr. ISAKSON. Mr. President, at the mitment to civil rights in terms of the children? That is what we are here to outset, I thank Mike Quiello and Nick claims of a few. I went to do some re- debate. Pearson of my staff for the research search on that issue because every- As we all know, public opinion fre- and preparation they gave me in my thing I saw in Judge Alito when he and quently changes with time as opposed deliberation and consideration of Sam- I talked was the opposite of what those to the Constitution which changes uel Alito, Jr., and his appointment to allegations would imply. I went to the rarely. While the legislative bodies the Supreme Court. Further, as a sec- testimony of Jack White, an attorney across the country are intended to be ond generation American, the grandson from San Francisco, CA, an African flexible branches of our government in- of a Swedish immigrant who came to American, a member of the American stitution, charged with addressing the this country about 11 years prior to Civil Liberties Union who came to needs of the people by making new Samuel Alito, Sr.’s coming to this Washington, DC, and testified before laws, the judiciary is intended to be country from Italy, I am pleased that the Judiciary Committee on behalf of the equitable and impartial check, in the next few days I will have the Samuel Alito. Rather than me trying charged with preserving and protecting chance to cast my vote to confirm to paraphrase what Jack White said, I our Nation’s basic fundamental prin- Judge Alito as a Justice of the Su- would like to read it verbatim and then ciples. preme Court and reaffirm the promise ask anyone who hears this speech the I believe a nominee’s judicial philos- that is the American dream of those question whether Samuel Alito is a ophy should translate to their legal in- who have come here from backgrounds man who is not for the civil rights of terpretations, not their political posi- that are diverse and far away to be a all and the individual rights and lib- tions. The legislature makes the law part of a great nation and have pledged erties of every American: and the judiciary interprets it. Both their allegiance to all it stands for. Now, as I clerked for Judge Alito, I saw a branches serve an equally legitimate I have thought a lot about what I deep sense of duty, diligence, humanity, and and important function, but they are would say in confirming my vote on be- respect for his role as a Federal appellate very different. My constituents want half of Judge Alito, and I decided, after judge. . . . justices who apply the law, not judges listening to the speeches over the last . . . He uniformly applied the relevant law who make the law. couple of days, that I would try to draw to the specific facts of every case. Judge Opponents of Judge Alito continu- a distinction that, to me, has been ap- Alito recognized that every case was the most important case to the parties and at- ously cite political reasons to vote parent in this debate but also is clearly torneys with something at stake. against his nomination. Unfortunately, the reason that I support Judge Alito. See, Judge Alito doesn’t judge people this sounds all too much like your typ- As we have heard today from a number by their color; he judges everybody in- ical Washington, DC, partisan battle. of my colleagues, he has been criticized dividually in the cases he calls, as the But I assure my colleagues, the Amer- for being narrow and restrictive. It is cases are, understanding that every ican people outside of the beltway of important that we understand what the party has an equal interest. this town don’t care to hear us bicker opposite of narrow and restrictive is to I further quote Jack White: about partisan political issues when it understand where those who oppose comes to the future of the Supreme him are coming from. I never witnessed an occasion when per- sonal or ideological beliefs motivated a spe- Court. This should be a thorough de- The opposite of narrow and restric- cific outcome in a case. bate on an individual’s legal qualifica- tive is broad and unlimited. The last . . . I left New Jersey without knowing tions and judicial philosophy. thing the United States of America Judge Alito’s personal beliefs on any of This debate is much bigger than Re- needs, or our Founding Fathers in- them. Now, the reason I didn’t know his per- publicans and Democrats. This debate tended, is to have a Supreme Court sonal beliefs on all these issues was that the is about our children’s future. For me, that is unrestricted and broad in its in- jurist’s ideology was never an issue in a case it is about doing what is right, and terpretation of the Constitution and that Judge Alito heard. about doing what is right as a father the laws the legislative branch passes You see, Jack White, who was an Af- and a husband. It demands that this under its authority. Therein lies the rican-American law clerk for Judge body, the Senate, come together. Stop philosophical difference in this debate. Alito, said that when he left, he never the character assassination, the distor- It has saddened me that through in- saw the ideological beliefs of the judge tion of a nominee’s record, and support nuendo and reference in some of the interfere with his judgment of the law this nominee because of his expertise previous speeches over the last couple and his ruling in a case. and his accomplishments. of days, Judge Alito has been cast as I end my quote by reading simply After meeting Judge Alito, having being exactly the opposite of what what he said: the opportunity to review his questions Judge Alito really is. For example, in Without fail, I saw Judge Alito treat ev- in front of the Judiciary Committee, the recent aftermath of the tragedies eryone, every individual, with dignity and having an opportunity to ask him ques- in West Virginia, one speaker referred respect. tions personally, I am confident that to Judge Alito’s dissenting opinion in I will take the word of Jack White, he does, in fact, have a sound judicial the case of RNS Services v. Depart- who worked for Sam Alito, any day philosophy and that he will administer ment of Labor as exemplifying the fact over any of us who, through innuendo justice according to the strict interpre- that Judge Alito was against the little or what we may have heard, want to tation of our Constitution. I am con- man and the worker. castigate this nominee on his commit- fident that he will preserve our Na- That was a case where a ruling was ment to civil rights. Jack White’s tion’s longstanding principles and that made on the application of a rule on word, and his experience, is good he will interpret the law, not make it. mine safety. But if you read the rule, enough for me. And Jack White knows I am also convinced that Sam Alito Judge Alito did what you would hope a what I know about Sam Alito—that he is a man of character and honesty. judge would do: He ruled on the appli- is committed to equity and fairness in Judge Alito is not only a good nomi- cation of the rule given the cir- the treatment of all Americans.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00044 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.062 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S189 There has been something made of O’Connor did. The criticisms of Judge judge.’’ Even former Judge Tim Lewis, the fact that he is replacing Sandra Alito of being narrow and restrictive a man who said he occasionally dis- Day O’Connor. I wish to talk about may, in fact, be, if you look at them in agreed with Judge Alito, endorsed his that for a minute. the perspective I have given, a great elevation to the High Court. Sandra Day O’Connor is one of my fa- compliment to his ability and that To me, all of this testimony carries vorite Justices. I am not a lawyer. I which all of us seek, and that is a ju- substantial weight. We can judge a came to the Senate from the House, rist who will rule based on the law, not man by his record, we can judge him by but prior to my years in the House, I legislate based on the position. A jurist his judicial philosophy, certainly, but ran a small business. I am a business- understands the value and the strength there is no better judge of a man than man, and that is the interest I know and the power of the Constitution of those who know him best. and that which I know the best. Judge the United States of America. Unfortunately, some who hardly O’Connor was, without question, during Mr. President, I look forward to cast- know Judge Alito have tried to smear her period on the bench the very best ing my vote in favor of the nomination his reputation by raising his recusal in Justice in dealing with the complex of Samuel Alito, Jr., to the U.S. Su- the so-called Vanguard case. This case issues of business that came before the preme Court. got a lot of play during the hearing. In U.S. Supreme Court. When I had the I yield the floor. my opinion, this attack is clearly friv- chance to meet with Judge Alito, I The PRESIDING OFFICER. The Sen- olous. I wish to talk for a moment made that point to him and I asked ator from Ohio is recognized. about it. Mr. DEWINE. Mr. President, I met him questions about American busi- This so-called Vanguard case arose with Judge Alito on the day after his ness, free enterprise, and the law. In out of a financial dispute between two nomination. I was very impressed with every case, I became convinced that he people. The plaintiff won a suit against him from the start. After spending an had the same commitment Sandra Day a woman by the name of Monga, re- hour or so with him, I could tell that O’Connor had. quiring her to turn over about $170,000 he is a modest, honest, and fair man, a To that end, and with regard to ‘‘nar- that she had in some Vanguard ac- person with a solid understanding of row and restrictive’’ and with regard to counts. Ms. Monga then went to court the proper role of a judge. At the time, the little guy, I wish to conclude my to prevent Vanguard from turning over however, I said I would not make a remarks on behalf of Samuel Alito by the money. So while Vanguard was final decision about his nomination at technically a defendant in the case, in taking a second to talk about the Kelo that point. the classic sense of the term, it really v. New London case, the dissenting I started my career as a county pros- was not accused of any wrongdoing. It opinion which Sandra Day O’Connor ecuting attorney, and I believe in trials wrote, and the answers to questions before verdicts. We just had the trial, didn’t stand to lose anything. The only Judge Alito gave before our Judiciary and during that trial, the hearing, this question was whether Vanguard would Committee because they completely is what I saw: I saw a man who is forth- transfer the funds it held for Ms. contravene any comment anybody has right and honest. Over the course of 3 Monga to another person. They just made about his commitment to the lit- days before the Judiciary Committee, held the money. Nothing about this tle guy or the benefit, or lack thereof, Judge Alito was asked 677 questions on case could realistically have affected of narrow and restrictive ideology. issues ranging from abortion to execu- Vanguard as a company, nor Judge Justice O’Connor was one of the four tive power to Vanguard. He answered Alito. The judge did not own Vanguard; dissenting Justices in the Kelo case. at least 659 of them, or 97.3 percent of he held mutual funds that were man- They didn’t believe in the broadening the questions. aged by Vanguard. of eminent domain to take property To give you some perspective on Mr. President, that is why everyone just because somebody could pay more these numbers, Chief Justice Roberts, who has looked into that matter has taxes and would benefit more from it, when he was in front of our committee, concluded that the allegations against and I concur with that. I think they was asked only 574 questions and an- Judge Alito are absurd. The ABA made the right ruling. She said: swered 89 percent of them. Justice looked into this allegation and unani- For who among us can say she already Ginsburg was asked just 384 questions, mously concluded that Judge Alito was makes the most productive or attractive pos- answering only 80 percent of them. Jus- entitled to its highest rating, a rating sible use of her property? The specter of con- tice Breyer was asked 355 questions, which explicitly considers ethics and demnation hangs over all property— answering 82 percent. Judge Alito was integrity. Five legal experts concluded She is speaking within the context of asked more questions and gave more that Judge Alito did nothing wrong. the ruling in the majority. answers than any recent nominee to Judge Becker, the former Chief Judge Nothing is to prevent the State from re- the U.S. Supreme Court. of the Third Circuit, said he was ‘‘baf- placing any Motel 6 with a Ritz-Carlton, any At that hearing, I saw a man of char- fled’’ by these allegations. The Wash- home with a shopping mall, or any farm with acter and integrity. Judges do not shed ington Post wrote in a January 13 edi- a factory. their values when they don their robes. torial that Judge Alito’s own testi- What more brilliant statement can Our Founders themselves recognized mony ‘‘revealed the frivolousness of be made on behalf of the little guy, the this important point. In Federalist No. the charge.’’ average American, or the small home- 78, for instance, Alexander Hamilton Before these hearings began, one of owner than Sandra Day O’Connor’s? said that only a few individuals would Judge Alito’s opponents, Nan Aron, What better affirmation of someone’s really have the expertise in the law to president of the Alliance for Justice, capacity to replace that distinguished become a Supreme Court Justice. But said, ‘‘you name it, we’ll do it’’ to de- Justice could you possibly make than fewer still would have the ‘‘integrity’’ feat Judge Alito. by reading the last sentence of Judge and the ‘‘dignity’’ befitting the office. With Vanguard, Judge Alito’s oppo- Alito’s answer to that question before In my opinion, Judge Alito has the in- nents resorted to an outrageous attack the Judiciary Committee when he was tegrity, the character, and the dignity on him in an effort to undermine his asked about the Kelo case? He said: befitting the office of Associate Justice integrity. This attack clearly failed. I would imagine that when someone’s of the Supreme Court. Although some waged a full-scale war home is being taken away, a modest home, The best evidence on this point is the against Judge Alito, what Judge Beck- for the purpose of building a very expensive testimony of those who know Judge er said at the hearing remains true commercial structure, that is particularly Alito best—his colleagues on the Third today: There is simply ‘‘not one chink galling [to me]. Circuit, people he has worked with day in the armor of his integrity.’’ Sandra Day O’Connor was a great in and day out. Judge Edward Becker At the hearing, I saw an experienced Justice and did a great service to described Judge Alito as ‘‘modest and judge with a brilliant legal mind. America. She broke the glass ceiling in self-effacing.’’ Judge Becker continued: Judge Alito came to the Judiciary being the first woman appointed to the I have never seen a chink in the armor of Committee with a lengthy and distin- U.S. Supreme Court. I believe Justice his integrity, which I view as total. guished legal career. He served for sev- Alito will serve our people on this Judge Leonard Garth, his first boss, eral years as a Federal prosecutor, tak- Court every bit in same way Justice called him a ‘‘morally principled ing on the mob, drug dealers, and

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00045 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.066 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S190 CONGRESSIONAL RECORD — SENATE January 26, 2006 white-collar criminals. He argued 12 I can’t help but think of my own ancestors he takes a seat on the Supreme Court, cases himself before the U.S. Supreme because it wasn’t that long ago when they as I expect he will, I know he will re- Court. And for more than 15 years, he were in that position. . . .[W]hen I look at member that. When tough cases come has served as a judge on the Third Cir- those cases, I have to say to myself, and I do up, he will, in fact, I am sure, act like say to myself, this could be your grand- cuit, deciding thousands of cases and father. This could be your grandmother. a judge. authoring hundreds of opinions with They were not citizens at one time, and they I thank the Chair, and I yield the his own pen. This background certainly were people who came to this country. When floor. attests to his extraordinary com- I have cases involving children, I can’t help Mr. President, I suggest the absence petence and shows why he received a but think of my own children and think of a quorum. unanimously well-qualified rating from about my children being treated in the case The PRESIDING OFFICER (Mr. the ABA. that’s before me. . . .When I get a case about BURR). THE CLERK WILL CALL THE ROLL. His judicial opinions attest to his discrimination, I have to think about people The legislative clerk proceeded to in my own family who suffered discrimina- call the roll. competence as well. He writes crisply tion because of their ethnic background or and clearly without any kind of over- because of religion or because of gender, and Mr. OBAMA. Mr. President, I ask statement. For the most part, he de- I do take that into account. When I have a unanimous consent the order for the cides only the issues before him and case involving someone who has been sub- quorum call be rescinded. has proven himself capable of tackling jected to discrimination because of dis- The PRESIDING OFFICER. Without complex areas of the law with clear and ability, I have to think of people whom I’ve objection, it is so ordered. yet simple language. known and admired very greatly who had Mr. OBAMA. Mr. President, it is my In my mind, however, the way Judge disabilities, and I’ve watched them struggle understanding that the hour is dedi- Alito answered our questions is per- to overcome the barriers that society puts cated to the Democrats speaking with up[.] haps the best example of his extraor- respect to the Alito nomination. I re- To me, this testimony accurately re- dinary legal talent. During our hear- quest 5 minutes of that time. flects Judge Alito’s record while on the ings, he demonstrated a mastery of The PRESIDING OFFICER. The Sen- bench. No matter who comes before constitutional law and his own volumi- ator from Illinois is recognized. him and no matter what the case, nous jurisprudence. Over the course of Mr. OBAMA Mr. President, first let Judge Alito approaches each case with 3 days, he spoke clearly and succinctly me congratulate Senators SPECTER and an open mind and a real-world sense of without using notes. It was an amazing LEAHY for moving yet another con- the consequences of his actions. To me, performance. He provided us with de- firmation process along with a civility that is truly the approach of a fair, tailed information about how he that speaks well of the Senate. openminded, and compassionate judge. thinks, how he reasons, how he comes As we all know, there has been a lot Finally, I saw a man who under- to his conclusions. I found his testi- of discussion in the country about how stands the proper role of a judge. I be- mony thorough, forthcoming, and in- the Senate should approach this con- lieve judges play a limited, but obvi- formative, and I believe the American firmation process. There are some who ously important, role in our constitu- people felt the same way. believe that the President, having won tional system. Judges are not Members At the hearing, I also saw a man who the election, should have complete au- of Congress, State legislators, Gov- is openminded and fair, a man who is thority to appoint his nominee and the ernors, or Presidents. Their job is not compassionate. During our hearings, Senate should only examine whether to pass laws or make policy. Instead, it some complained that Judge Alito has the Justice is intellectually capable is the job of a judge—to use the words a bias toward Government or big busi- and an all-around good guy; that once of Justice Byron White—simply ‘‘to de- ness. But that is not what was said by you get beyond intellect and personal cide cases.’’ Nothing more. character, there should be no further those who, again, know him best. Take, Judge Alito seems to embody this for example, the testimony of Judge question as to whether the judge thinking as well. Several years ago at should be confirmed. Alito’s former law clerks. a ceremony honoring one of his Third Kate Pringle, a self-described ‘‘com- I disagree with this view. I believe Circuit colleagues, Judge Alito re- mitted and active Democrat,’’ said that firmly that the Constitution calls for minded his colleagues about the at- Judge Alito ‘‘approached each case the Senate to advise and consent. I be- tributes of a good judge. Always re- without a predisposition toward one lieve it calls for meaningful advice and member, he said, to ‘‘act like a judge.’’ consent and that includes an examina- party or the other.’’ She said he treat- He went on to say: ed all litigants ‘‘in a fair and open- tion of a judge’s philosophy, ideology, Do what good judges do, what they have and record. When I examine the philos- minded way.’’ done for a long time. Decide the cases that Jack White, a member of the NAACP come before you, decide them as best you ophy, ideology, and record of Samuel and the ACLU, said that Judge Alito can. . . .Speak straightforwardly on the Alito, I am deeply troubled. had an ‘‘abiding loyalty to a fair judi- matters that are properly before you. Exer- I have no doubt Judge Alito has the cial process,’’ not ‘‘an enslaved inclina- cise the important powers that are rightfully training and qualifications necessary tion toward a political or personal ide- yours, but keep in mind that you are a judge. to serve. As has been already stated, he ology.’’ In fact, Mr. White ‘‘never wit- On the first day that I met Judge has received the highest rating from nessed an occasion when personal or Alito, I was impressed with him, but I the ABA. He is an intelligent man and ideological beliefs motivated a specific am even more impressed today. He is a an accomplished jurist. There is no in- outcome in a case.’’ good, decent, and honest man. He has dication that he is not a man of fine Finally, Professor Nora Demleitner, extraordinary legal talent, and he ap- character. who described herself as ‘‘a left-leaning proaches each case with an open mind But when you look at his record, Democrat, a member of the ACLU, a and understanding heart. when it comes to his understanding of woman, and an immigrant,’’ also had In spite of some of the frivolous at- the Constitution, I found that in al- praise for Judge Alito: tacks on his reputation and character, most every case he consistently sides In the years I have known the judge, he has Judge Alito has conducted himself with on behalf of the powerful against the never decided a case based on a larger legal dignity, patience, and, yes, poise. He is powerless; on behalf of a strong govern- theory about the Constitution or conserv- an excellent judge and, in my opinion, ment or corporation against upholding ative worldview, but instead has looked at will make an outstanding addition to Americans’ individual rights and lib- the merits of each individual case. the Supreme Court. I am proud to sup- erties. Judge Alito also understands that ju- port his confirmation. If there is a case involving an em- dicial opinions are more than ink in I conclude by noting that when Judge ployer and employee and the Supreme the Federal Reporter. He understands Roberts was sworn in as our Nation’s Court has not given clear direction, that they are decisions that affect real 17th Chief Justice, he reminded us of a Judge Alito will rule in favor of the people and have real consequences. The ‘‘bedrock principle.’’ And that is that employer. If there is a claim between judge himself put it best: ‘‘judging is different from politics.’’ prosecutors and defendants, if the Su- [W]hen a case comes before me involving, Similar to John Roberts, Samuel Alito preme Court has not provided a clear let’s say, someone who is an immigrant . . . understands the difference, and when rule of decision, then he will rule in

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00046 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.068 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S191 favor of the State. He has rejected The PRESIDING OFFICER. The Sen- didate to replace Justice O’Connor and countless claims of employer discrimi- ator from Colorado. her legacy on the Court. nation, even refusing to give some Mr. CARPER. Mr. President, of the For more than 20 years, Justice plaintiffs a hearing for their case. He three branches of our Federal Govern- O’Connor has been a voice of modera- has refused to hold corporations ac- ment, the Supreme Court seems the tion during often difficult and tumul- countable numerous times for dumping most removed from the American peo- tuous times. As we all know, her deci- toxic chemicals into water supplies, ple. There are, as we know, only nine sions oftentimes determined the direc- even against the decisions of the EPA. members of the Supreme Court. None tion of the Court. Not infrequently, the He has overturned a jury verdict that of them, in the end, is accountable to opinions she wrote reflected the pre- found a company liable for being a mo- the public. They certainly do not have vailing sentiment of our country and nopoly when it had over 90 percent of to face groups of angry voters as you its citizens, too. In my view, she was the market share in that industry at and I do from time to time, at townhall the right Justice at the right time. the time. meetings or local potluck dinners, and Unfortunately, and with some regret, It is not just his decisions in indi- they are probably thankful for that. I rise today not fully convinced that vidual cases that give me pause, However, their actions can have a Judge Samuel Alito is the right person though; it is that decisions like these tremendous and lasting effect on the to replace Justice O’Connor on the Su- are the rule for Samuel Alito rather lives of every American, probably more preme Court. Unlike a few months ago, than the exception. so than any Senator or Governor, or when I rose to support the nomination When it comes to how checks and perhaps even more than many Presi- of John Roberts, I will not be sup- balances in our system are supposed to dents. For, in the end, the Supreme porting Judge Alito’s nomination to operate, the balance of power between Court exists as the last bastion of pro- the Supreme Court. In sharing that de- the executive branch, Congress, and tection for the rights and freedoms we cision today, though, let me be clear on the judiciary, Judge Alito consistently enjoy as Americans. That is why I take several points. I will not be voting sides with the notion that a President so seriously, as I know you do, our ob- against his confirmation because I should not be constrained by either ligation as Senators to provide advice don’t believe he has the legal qualifica- congressional acts or the check of the and consent to our Presidents, as re- tions, the intellect, or the experience judiciary. He believes in the over- quired by our Constitution, to deter- necessary to sit on the Supreme Court. arching power of the President to en- mine whether their nominees truly I do. He is clearly very bright and dem- gage in whatever policies the President merit a lifetime appointment to serve onstrates an excellent grasp of the law. deems to be appropriate. on our Nation’s highest Court. I will not be voting against him be- As a consequence of this, I am ex- When I voted for Judge John Roberts’ cause I don’t like him or respect him. traordinarily worried about how Judge nomination to become Chief Justice of I do. He is described by a number of his Alito might approach the numerous the Supreme Court last fall, I said colleagues as collegial, as hard work- issues that are going to arise as a con- standing here that it was a close call, ing, and as a devoted father and hus- sequence of the challenges we face with at least for me. Ultimately, though, I band. I believe Samuel Alito is an hon- terrorism. There are issues such as chose to take what I described then as orable person and that he has lived an wiretapping, monitoring of e-mails, a leap of faith. As someone whose polit- honorable life. other privacy concerns that we have ical and legal opinions are perhaps Having said that, though, I don’t be- seen surface over the last several somewhat more conservative than lieve we should vote for Supreme Court months. mine, I knew Chief Justice Roberts Justices based solely on their quali- The Supreme Court may be called to would sometimes render decisions with fications and likeability. We must also judge as to whether the President can which I may not be comfortable or en- consider their judgment, their legal label an individual U.S. citizen an tirely agree. But after carefully re- opinions, their judicial philosophies, enemy combatant and thereby lock viewing his testimony, and discussing and what they said or did not say dur- them up without the benefit of trial or that testimony with Democratic and ing the confirmation hearings, in order due process. There may be consider- Republican members of the Senate Ju- to determine whether we are truly ation with respect to how the Presi- diciary Committee, meeting with him comfortable with the direction a par- dent can prosecute the war in Iraq and and other interested parties, and talk- ticular nominee will take our Nation’s issues related to torture. In all of these ing to his colleagues, colleagues of his highest Court. After all, these are life- cases, we believe the President de- who had known and worked with him time appointments that will have con- serves our respect as Commander in in the past, I concluded John Roberts sequences for decades into the future. Chief, but we also want to make sure was a worthy successor to Chief Jus- In the end, I found myself asking one the President is bound by the law, that tice Rehnquist and was not likely to simple question. Here it is: Is Judge he remains accountable to the people shift the balance of the Court in any Samuel Alito the right person for this who put him there, that we respect the significant way. vacancy, not just for now but for dec- office and not just the man, and that Obviously, more than three-fourths ades to come? For me, the answer to that office is bounded and constrained of our colleagues agreed with that deci- that question is, regrettably, no. Let by our Constitution and our laws. I sion. When the time had come to cast me take a few minutes to explain why. don’t have confidence that Judge Alito my vote, I concluded that Chief Justice As we all know, our Constitution pro- shares that vision of our Constitution. Roberts’ decisions would not be guided vides for three separate but equal In sum, I have seen an extraor- by ideology alone, but also by legal branches of Government—the legisla- dinarily consistent attitude on the part precedent and the combination of his tive branch, that is us, the Congress; of Judge Alito that does not, I believe, life’s experiences as a judge, as an at- the executive branch, the Presidency uphold the traditional role of the Su- torney, as an academic, as a father, and his or her administration; and the preme Court as a bastion of equality and as a husband. In short, by sup- judicial branch, the courts. The Fram- and justice for U.S. citizens. Should he porting John Roberts’ nomination I ers of our Constitution believed no be confirmed, I hope he proves me voted my hopes and not my fears. branch of our Federal Government was wrong. I hope he shows the independ- After we confirmed Chief Justice superior to another, so our Founding ence that I think is absolutely nec- Roberts and turned to face yet another Fathers established an intricate sys- essary in order for us to protect and impending Supreme Court vacancy, I tem of checks and balances to ensure preserve our liberties and our freedoms urged President Bush to send us a that each branch kept a watchful eye as citizens. But at this juncture, based nominee similar to the person he or she on the others. on a careful review of his record, I do would replace—Justice Sandra Day For instance, it is Congress’s job to not have that confidence, and for that O’Connor. I noted that his next choice represent the people and write the laws reason I will vote no and urge my col- could divide this Congress and our of our land, but the President can leagues to vote no on this confirma- country even further, or it could serve refuse to sign a bill the Congress has tion. to bring us closer together. In my view, passed if he or she disagrees with our Mr. President, I yield the floor. we needed that type of consensus can- conclusions. Congress can then come

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00047 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.069 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S192 CONGRESSIONAL RECORD — SENATE January 26, 2006 back and override a President’s objec- nal suspects, and I believe administra- President is a Democrat or a Repub- tions, if we can muster the necessary tions should have to justify, within lican. votes. Meanwhile, the Supreme Court reasonable periods of time, their deci- We need in this country for the can rule that a law is, in part or in sion to spy on Americans. I will be the courts and the Congress to ensure that whole, unconstitutional, providing yet first to acknowledge that there are this administration and future admin- another important check on the power times when the President—this one or istrations abide by the laws of this vested in the Congress and in the Presi- another President—needs the ability to land and the principles we hold dear. dency. conduct secret wiretaps. And I think Just as I am concerned about Judge Admittedly, it is not the most har- most of us agree on that point. Alito’s views on expanded Presidential monious or quickest form of Govern- The issue, however, is do Presidents power, I am also concerned about ment, but it has served our country have a constitutional right to conduct Judge Alito’s opinion on the role and well for over 200 years. Perhaps it was secret wiretaps without court author- powers of Congress. Churchill who said it best when he de- ization, without some other branch of Traditionally, Congress has enjoyed scribed democracy as the worst form of Government making sure that that ad- broad authority, as a coequal branch of government devised by wit of man, but ministration isn’t breaking the law? Government, to debate and adopt laws for all the rest. Again, the fundamental issue for me that we believe protect the interests of I am concerned that, if confirmed, is the issue of checks and balances. the American people, such as keeping Judge Alito, during the decades he is In these instances, Congress and the our water clean and our air clean and likely to serve may well take the Court courts provide a needed and important ensuring that fair labor laws and em- ployment standards across the country in a new direction that serves to under- backstop to make sure that the admin- are fair. mine our system of checks and bal- istration doesn’t became overzealous ances, threatening the rights and free- Back in the 1990s, Congress used that and abuse the rights of innocent peo- authority to pass a bill that banned the doms many of us hold dear. ple. Let me elaborate, if I may. In the possession or sale of machineguns Americans may not understand why across State lines among everyday past, Judge Alito has advocated for these issues are such a big deal. They what is known as the ‘‘unitary execu- Americans. To me, that ban wasn’t may even agree with the reasons the about whether people had the right to tive theory.’’ Bush administration give, for instance, Until a couple of months ago, I had own guns for recreation or self-protec- for circumventing the law—a law that tion. Those rights are forever en- not heard of that. If you are like me, has been in place since 1978 which we Mr. President, and you didn’t go to law shrined in our Constitution, as they modified I think about 4 years ago. should be. This was about whether peo- school, you are probably wondering But it is not a stretch to understand what that means. Let me put it simply. ple had the right to own, to buy, or to how a President—maybe not this one sell across State lines Army-style ma- It basically means that Judge Alito but one in the future—could overstep chineguns, which I think reasonable feels that the President should largely his or her authority and thereby in- people can agree have little, if any- be allowed to act without having to fringe on the civil rights of innocent thing, to do with protecting our homes worry much about Congress or the Su- Americans. or going hunting. preme Court stepping in and saying: For that reason alone, we should all Nevertheless, the constitutionality of With all due respect, you are out of have grave concerns about an un- the law was challenged in the courts. line. checked Presidency—or a Supreme All nine Federal appeals courts that This line of thinking deeply concerns Court Justice who has routinely sided heard the subsequent challenges upheld me and, I believe, many of my col- and ruled in favor of unchecked Execu- the validity of the original law. leagues and the people we represent. tive powers. Judge Alito, as a member of the Fed- And it should. Remember, our Nation Jeffrey Stone, a law professor at the eral appeals court that covers Dela- declared her independence from Britain University of Chicago, is a supporter of ware and our surrounding region in the because we no longer wanted to be the Roberts nomination—and initially Delaware Valley, heard one of those ruled by a king, or, frankly, by anyone a supporter of the Alito nomination— challenges. He ended up disagreeing with king-like powers. Our Founders wrote recently: with his own court’s decision and that wanted power to be invested in the peo- Given the times in which we live, we need of eight other Federal appeals courts ple and shared equally by the three and deserve a Supreme Court willing to ex- which ruled that Congress does indeed branches of Government. amine independently these extraordinary as- have the authority under our Constitu- To say then that there are times sertions of Executive authority. We can fight tion to ban the sale of machineguns when a President’s power should go and win the war on terrorism without in- across State lines. largely unchecked except in very rare flicting upon ourselves and our posterity an- My primary concern is that if Judge instances, in my opinion, goes against other regrettable episode like the Red Scare Alito thinks Congress shouldn’t have and the Japanese internment— what our Founders intended. Moreover, the right to pass laws that arguably unfettered Presidential power could Of the 1950s and 1940s, two shameful keep Americans safer, then what other have dangerous consequences, given episodes in the history of our country laws might he believe Congress does how a particular President—either now where our Government seriously in- not have the authority to adopt under or in the future—chooses to exercise fringed on the rights of average Ameri- the commerce clause of our Constitu- that kind of unchecked power. cans under the guise and excuse of na- tion? Laws that protect the air we Let me give you a recent real-world tional security. breathe or the water we drink? Laws example. Over the past few months, the But as Professor Stone went on to that allow men and women to take un- Bush administration has been em- say, we will only avoid such terrible paid leave from their jobs to care for broiled in several controversies, as we excesses of governmental power ‘‘if the members of their family during times know, over its policies concerning the Justices of the Supreme Court are will- of crisis? I don’t know, and that uncer- torture of detainees, as well as its deci- ing to fulfill their essential role in our tainty—at least for me—is a cause of sion to spy on or intercept phone calls constitutional system.’’ real concern. and e-mails apparently of thousands of Based on his history and his opin- A third concern I hold about Judge people living in the United States who ions—in his own words—I fear that Alito relates to his views on other are suspected of being agents of foreign Judge Alito may well change the rights and freedoms we enjoy as Ameri- countries or entities. In both cases, the Court’s approach and rule in favor of cans, particularly a woman’s right to administration asserted that it should expanded Presidential power—not just end a pregnancy prior to fetal viabil- be able to act without the consent of at the expense of Congress and the ity. My own opinion about abortion is Congress or the courts. courts but ultimately at the expense of we have far too many of them, and we I disagree. I believe that our courts the American people. We cannot and need to put a lot more effort into re- have an obligation under our laws to should not play witness to an un- ducing the number of abortions that monitor an administration’s actions checked Presidency, regardless of po- still take place in America. I am sure concerning foreign prisoners and crimi- litical party, regardless of whether the on that point Judge Alito and I agree.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00048 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.070 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S193 But I am not certain Judge Alito ware’s constitution requires overall po- appoint . . . Judges of the Supreme agrees with me that we should not go litical balance in our State’s courts. Court. . . .’’ back in time to a place where almost For every Democrat who is appointed The Constitution gives us no guid- all abortion laws were illegal, where to serve as a judge, Delaware Gov- ance on the factors the Senate should women who wanted to end a pregnancy ernors have to nominate a Republican. consider while we carry out this con- were in too many instances forced into The result has been an absence of polit- stitutional duty. In the end, each Sen- unhealthy behavior that often put ical infighting and a balanced, excep- ator must determine what qualities he their lives and their reproductive fu- tionally and highly regarded State ju- or she thinks a good Supreme Court tures at risk. That is why, during his diciary that we are enormously proud Justice should have and what scope of confirmation hearing, I was dis- of in our State. inquiry is necessary to determine if the appointed that Judge Alito, unlike Our Federal Constitution, regret- prospective nominee has these quali- Judge Roberts, declined to acknowl- tably, does not require similar political ties. edge that the Supreme Court decision balance when it comes to the judiciary, This will be the 11th Supreme Court that granted women the right to end an but political balance should be one of nomination on which I will have voted. early term pregnancy is ‘‘settled law.’’ our goals. The Founders of the U.S. With each nomination I have done my Justice O’Connor, whom Judge Alito Constitution tasked the Senate with best to fairly determine if the nominee has been nominated to replace, has finding that balance. satisfies fundamental requirements of been the deciding vote on numerous I fear, in the end, that Judge Alito qualification and temperament, if the cases that challenged this precedent. may well upset the balance that exists nominee is likely to bring to the Court That is why I believe replacing Justice on the Supreme Court for the better an ideology that distorts his or her O’Connor with Judge Alito—given his part of my lifetime and move the Court judgment, and brings into question his rulings and statements on this sub- in a direction that will not be best for or her open mindedness and whether ject—may well be putting this prece- many of the people of this country. any of the nominee’s policy values are dent in jeopardy. So this time, unlike my vote for the inconsistent with fundamental prin- Let me explain why. In the historic nomination of John Roberts a few ciples of our Constitution. Planned Parenthood v. Casey case, months ago, I will be voting my fears— Like Judge Roberts before him, Judge Alito voted to uphold a Pennsyl- not my hopes. Having said that, I sin- Judge Alito has an impressive back- vania law requiring married women to cerely wish Judge Alito well. ground and command of the law. He notify husbands before obtaining an I hope, if he is confirmed—and I be- easily meets the educational and pro- abortion even during the early stages lieve that he will be—that he proves fessional requirements of the position. of pregnancy. That case eventually my concerns wrong and unfounded. I Judge Alito has worked for the Justice went to the Supreme Court, which hope he remembers that our Constitu- Department, as the U.S attorney for ruled against Judge Alito’s position, as tion—that our entire democracy—is the District of New Jersey, and for we know. both an everlasting and ever-changing nearly 16 years as a judge on the Third Justice O’Connor, who cast the decid- experiment. Our Constitution is not Circuit Court of Appeals. He is re- ing vote in the Supreme Court over- something to be strictly interpreted, spected by his peers as a very decent turning the Pennsylvania law and nor is it something to be recklessly person and is a person of high caliber Judge Alito’s position, wrote that abandoned. and integrity. women do not leave their Constitu- Success in life is often measured not That Judge Alito has a keen intellect tional protection at the altar. Married just by the stances we take but by the and understands the nuances of the law women are entitled to the same protec- results we achieve. I believe that is one is indisputable. That is not enough to tions as single women. I believe she is of the reasons why Justice O’Connor is warrant confirmation if his discernible right. so revered. It is not because she was al- views on key issues are at variance I had the opportunity to talk with ways predictable or that she advocated with fundamental principles of our con- Judge Alito at length recently. I asked an intractable world view. It is that stitutional system. Because I am not him—a conversation that I very much she found the right balance, even in the convinced he will adequately protect enjoyed—why he ruled the way he did most difficult, controversial, and emo- the constitutional checks and balances in this instance. He told me he did not tional cases of our times. that are the bedrock of our liberty, I think the requirement placed an undue My fear is that too often Judge Alito cannot support his confirmation. burden on married women. I asked him may not do so, and thus I will not be I have concerns about Judge Alito’s if he felt the same way today, espe- supporting his nomination. views in a number of areas. One in cially in light of the Supreme Court My hope, though, is that once he is which I have the greatest doubts re- ruling in opposition to his view. He confirmed to the Supreme Court he lates to his undue deference to Execu- told me he basically thought the same will balance the scales of justice and tive power. In recent years, constitu- way. While I respect that honesty, I re- not tip them too far in either direction. tional issues on the authority of the spectfully disagree and question what Thank you, Mr. President. executive branch have multiplied. other undue burdens he may decide to The PRESIDING OFFICER. The Sen- These include executive actions in place on women in the future. ator from Michigan is recognized. areas of government eavesdropping, Let me close by saying that this is Mr. LEVIN. Mr. President, for the other government intrusions on per- not an easy vote for me. I know it is second time, this Congress we are con- sonal privacy, including library not an easy one for a lot of our col- sidering the nomination to the Su- records, medical records, and Internet leagues. As a former Governor, I be- preme Court. Having confirmed Judge search records, and the detention and lieve strongly that this administration John Roberts as Chief Justice in Sep- treatment of American citizens whom or any other administration has the tember, a decision in which I joined, we the President designates as ‘‘enemy right to nominate judges of the same are now debating the nomination of combatants.’’ Our system of checks mind and philosophy. There are con- Judge Samuel Alito to the position of and balances requires the Supreme sequences in elections. If you win, you Associate Justice. Positions on the Su- Court to enforce limits on Executive have the chance, if you are a Governor preme Court are hugely significant power, and the nominee’s views on ex- or a President, to nominate candidates given their lifetime tenures, the bal- ecutive authority under the Constitu- of your choice for the bench. And I be- ance on the Court, and the importance tion are extremely important. lieve Senators should not automati- of the Court’s decisions on the lives of Judge Alito’s record, however, is one cally reject judges outright because of Americans. These votes are among the of undue deference to Executive power political affiliation or beliefs. most important and difficult that we and raises significant doubts as to However, politicians of both stripes cast. whether he would adequately apply the must take a stand and reject nominees Article II, section 2 of the Constitu- checks and balances that the Founders that we believe will take the courts too tion simply provides that the President enshrined in the Constitution to pro- far to the extreme right or to the ex- ‘‘shall nominate, and by and with the tect, in part, against an overreaching treme left. Wisely, in my State, Dela- Advice and Consent of the Senate, shall Executive.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00049 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.075 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S194 CONGRESSIONAL RECORD — SENATE January 26, 2006 For example, while serving as Deputy dizement of one branch at the expense of the utive authority in the seminal Youngs- Assistant Attorney General in 1986, other.’’ town case. As Justice Robert Jackson Judge Alito recommended the Presi- Nonetheless, just a year later, in re- wrote in his renowned opinion: dent use bill signing statements to in- marks to the Federalist Society in When the President takes measures incom- fluence the Court’s interpretation of 1989, Judge Alito, then the U.S. attor- patible with the expressed will of Congress, legislative history. He argued that ney for the District of New Jersey, his power is at its lowest ebb. ‘‘the President’s understanding of the called the Morrison v. Olson decision Three times at his hearing, however, bill should be just as important as that ‘‘stunning,’’ and described congres- Judge Alito characterized that cir- of Congress,’’ and that his signing sional checks on broad Presidential cumstance where the President acts statement proposal would ‘‘increase power as ‘‘pilfering.’’ He said: contrary to the explicit congressional the power of the executive to shape the . . . the Supreme Court [in Morrison] hit prohibition as a ‘‘zone of twilight.’’ law.’’ the doctrine of separation of powers about as Justice Jackson reserved that zone of This issue took on renewed urgency hard as heavy weight champ Mike Tyson twilight, that zone of ambiguity, for when President Bush recently declared usually hits his opponents. the circumstance where ‘‘the President in a signing statement that he would Yet in the setting of the Judiciary acts in absence of either a congres- ignore the ban on torture by executive Committee hearings, when asked sional grant or denial of authority.’’ branch personnel, a ban passed over- whether the views he expressed to the Again, where the President acts in whelmingly by Congress in the very Federalist Society were still his views, defiance of a congressional prohibition, Presidential power, according to Jack- bill he was signing, if the ban ham- Judge Alito would only say: son, is at its lowest ebb, not in a twi- pered his actions as Commander in Morrison is a settled precedent—it is a light zone of uncertainty. Chief. In a written question, I asked precedent of the court. It was an 8–1 decision (sic). It’s entitled to respect under stare de- More specifically, Judge Alito—refer- Judge Alito about the possible legal ring to the congressional prohibition relevancy of Presidential signing state- cisis. It concerns the Independent Counsel Act, which is no longer in force. on executive wiretapping under the ments. His response was erudite, as al- Foreign Intelligence Surveillance Act, ways, suggesting they might be rel- He gave no indication that he has modified his earlier extreme view over FISA, the prohibition on executive evant if the President participated in wiretapping, except as provided for in the crafting of the legislation. time, but, again, he simply made a statement of obvious fact: that Morri- that act, spoke as follows at his hear- In the case of the torture ban lan- ing: guage, the President strongly and re- son is a precedent of the Supreme Court and entitled to respect as such. Where the President is exercising execu- peatedly opposed the language and un- tive power in the face of a contrary expres- successfully sought, at a minimum, to Although he has been hesitant to sion of congressional will through a statute obtain a Presidential waiver. Yet when check Presidential power, Judge Alito or even an implicit expression of congres- asked at his Judiciary Committee has been more than willing to check sional will, you’d be in what Justice Jackson hearing whether a signing statement congressional power. In United States called the twilight zone, where the Presi- dent’s power is at its lowest point. could have relevancy in that context v. Rybar, the Third Circuit upheld a where the President strongly opposed conviction under the Federal law pro- And Judge Alito said: the language and was not involved in hibiting the possession of machine What I’m saying is that sometimes issues of executive power arise and they have to be its crafting, Judge Alito responded: guns. In his dissent, Judge Alito said there was insufficient evidence in the analyzed under the framework that Justice The role of signing statements and the in- Jackson set out. And you do get cases that RECORD to determine that Congress had terpretation of statutes is, I think, a terri- are in this twilight zone. tory that’s been unexplored by the Supreme the power under the commerce clause to enact that legislation. Not only did Again, referring to the hypothetical Court. presented to him where there was a the majority strongly criticize his view That statement of fact was not re- specific congressional prohibition on of congressional power, and not only sponsive to a question about his views. wiretapping. Again, calling that a case did the Supreme Court decline to re- Judge Alito, thereby, missed the that is in the twilight zone. chance to show that his views on this view the majority’s ruling, thereby Later, Judge Alito said: suggesting the majority’s view was the issue have evolved since 1986. His words When you say regardless of what laws Con- in 1986 that signing statements can correct view, but the Second, Third, gress passes, I think that puts us in that help achieve the goal of ‘‘increasing Fifth, Sixth, Seventh, Eighth, Ninth, third category that Justice Jackson out- the power of the Executive to shape the Tenth, and Eleventh Circuits have also lined, the twilight zone, where, according to law’’ should give us all pause. all found the congressional machine- Justice Jackson, the President has whatever constitutional powers he possesses under Ar- If Judge Alito were on the Supreme gun ban to be constitutional. Undue restriction of legislative ticle II minus what is taken away by what- Court and voted to give constitutional ever Congress has done by an implicit ex- weight to signing statements such as branch authority such as reflected in pression of opposition or the enactment of a President Bush made when he signed Judge Alito’s dissent in Rybar could statute. the torture ban legislation, he would be lead to further unwise extension of ex- By repeated characterizations of creating a new and radical expansion of ecutive branch powers. For instance, Presidential action in the face of a pro- Executive power. Congress has voted to require the exec- hibition on that action, as falling into In 1988, the Supreme Court addressed utive branch to seek a warrant to a twilight zone of uncertainty rather the question of executive authority in eavesdrop on American citizens. We than a zone of dubious constitu- Morrison v. Olson, the decision which granted broad powers to tap phone tionality, Judge Alito, unwittingly or upheld the Independent Counsel Act. lines where there is probable cause otherwise, reflected what I fear his real The government had argued that the that a person is, or is linked to, a ter- view is. The twilight zone that he ref- act was unconstitutional because it re- rorist or a spy. We allow the executive erenced is entered, according to the stricts the Attorney General’s power to branch to go ahead and tap a phone Youngstown test, when the President remove an independent counsel and when there is no time to seek a war- acts without congressional authoriza- interfered with executive branch pre- rant, first, as long as it subsequently tion, not when Congress has explicitly rogatives, thereby disrupting the prop- seeks a warrant within 3 days. But prohibited his actions. Again, for in- er balance between the branches of Congress added an explicit prohibition stance, where Congress has prohibited Government. on the executive branch tapping phones domestic wiretapping in the absence of Chief Justice Rehnquist rejected of U.S. citizens except as provided for seeking a warrant, Presidential power those arguments when he wrote for a 7– in that law. This was an explicit prohi- is at its lowest ebb. 1 majority: bition. You must follow the require- In the 1981 case of Dames and Moore ments of this law or else you must not As we stated Buckley v. Valeo, the system v. Regan, Justice Rehnquist reaffirmed of separated powers and checks and balances tap American citizens’ phones. the same test, writing that the zone of established in the Constitution was regarded Can a President ignore that prohibi- twilight is entered ‘‘when the Presi- by the Framers as ‘‘a self-executing safe- tion, that check on his power? The Su- dent acts in the absence of congres- guard against the encroachment or aggran- preme Court ruled on the issue of exec- sional authorization,’’ and reaffirming

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00050 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.077 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S195 Justice Jackson’s opinion. Justice The PRESIDING OFFICER. The who served with Judge Alito for 15 Rehnquist found that ‘‘when the Presi- clerk will call the roll. years, called him a wonderful human dent acts in contravention of the will The assistant legislative clerk pro- being, gentle, kind, considerate, pa- of Congress ‘his power is at its lowest ceeded to call the roll. tient, self-effacing, brilliant, highly an- ebb and the Court can sustain his ac- Mr. CRAIG. Mr. President, I ask alytical and meticulous, a soul of tions [Justice Rehnquist said] ‘only by unanimous consent that the order for honor, with no chinks in the armor of disabling the Congress from action on the quorum call be rescinded. his integrity. the subject.’’’ The PRESIDING OFFICER. Without Judge Leonard Garth, who has known If Judge Alito had described the sta- objection, it is so ordered. Judge Alito since he clerked for him in tus of Presidential action in contradic- Mr. CRAIG. Mr. President, I am here 1976 and served with him on the Third tion of congressional prohibition only today to discuss the nomination of Circuit for the 15 years of Judge Alito’s one time, it could be argued that he Judge Samuel A. Alito, Jr. to be an As- tenure there, called him thoughtful, slipped or made a mistake. But since sociate Justice of the Supreme Court. modest, and self-effacing, and that it is he repeatedly made the statement, it is Over 200 years ago, the Framers of rare to find humility such as his in more likely to represent his true feel- the United States Constitution had a someone of such extraordinary ability. ing, particularly since Senator LEAHY similar discussion. On the topic of judi- And Edna Axelrod, a former col- pointed out this mischaracterization of cial nominations, they emphasized the league and lifelong Democrat, called Justice Jackson in the Youngstown need for qualified judges—those who him a man of unquestionable ability case and Judge Alito did not correct possess virtue, honor, requisite integ- and integrity, one who approaches each himself. rity, competent knowledge of the laws, case in an openminded way, seeking to Justice Jackson is a longtime and fit character, and those who have the apply the law fairly. lifelong hero of mine. He was President ability to conduct the job with utility You can also tell his qualifications Truman’s Attorney General when Tru- and dignity. from his judicial philosophy—and the man nominated him to the Supreme They also talked about the courts way he judges. Court. But when President Truman that these judges sit on and warned Judge Becker testified that Judge seized the steel mills under his claim of against them exercising will instead of Alito scrupulously adheres to prece- constitutional authority as Com- judgment, the consequence of which dent. mander in Chief, Justice Jackson ruled would be the substitution of the courts’ A former colleague and friend of 20 against his old friend, now Commander pleasure to that of the legislative body. years likewise said that those who in Chief, and wrote: These principles have stood the test know him know that he is not an ideo- What is at stake is the equilibrium estab- of time—have been a constant standard logue, he does not use his position to lished by our constitutional system. that has guided the Senate’s constitu- pursue personal agendas, and he has a Similarly, Justice O’Connor recently tional obligation of advice and consent profound respect for the law and prece- cast the deciding vote in Hamdi v. and—today, over two centuries later, dent. Rumsfeld, which made clear that the we see these principles embodied in Judge Alito himself testified that he President’s powers during wartime are Judge Samuel Alito. makes decisions knowing a judge can’t not unchecked under our Constitution. You can tell this by Judge Alito’s have any agenda, a judge can’t have Justice O’Connor wrote: record. any preferred outcome in any par- A state of war is not a blank check for the Judge Alito has served as a judge on ticular case, and a judge certainly President when it comes to the rights of the the Third Circuit Court of Appeals for doesn’t have a client. The judge’s only Nation’s citizens. 15 years. He was confirmed unani- obligation—and it is a solemn obliga- The liberties of our people are in the mously by a voice vote and since his tion—is to the rule of law. And that hands of the Supreme Court. The will- appointment, he has participated in means in every single case, the judge ingness of this President and a number more than 1,500 Federal appeals and has to do what the law requires. of Presidents before him to ignore the written more than 350 opinions. All of these things—his record, char- Constitution’s limits on their power From 1987 to 1990, he was the U.S. at- acter, and judicial integrity—don’t needs to be checked by the Supreme torney for the District of New Jersey— simply make him qualified to be an As- Court. While I am hopeful Judge Alito the chief Federal law enforcement offi- sociate Justice of the Supreme Court— will join the long and revered list of cer in the State. As a Federal pros- they make him well qualified, accord- Supreme Court Justices who have pro- ecutor, he oversaw the prosecutions of ing to the American Bar Association. tected our Constitution’s checks and numerous organized crime figures, After interviewing more than 300 peo- balances, I have too many doubts to be white-collar criminals, environmental ple and analyzing nearly 350 published confident he will do so and that he will polluters, drug traffickers, terrorists, opinions, a panel at the ABA concluded stand up to excessive exercises of Exec- and other Federal defendants. that Judge Alito’s integrity, his profes- utive power, as Justice Jackson and Judge Alito also served as an Assist- sional competence, and his judicial Justice O’Connor and other Justices ant to the Solicitor General from 1981– temperament are of the highest stand- have done. 1985, arguing 12 cases before the Su- ard—and his time on the bench estab- Judge Alito is a personable, decent preme Court and writing briefs or peti- lished a record of both proper judicial man, a man of great integrity and ex- tions in more than 250 cases. conduct and even-handed application traordinary intellect. His associates He was a Deputy Assistant Attorney in seeking to do what is fundamentally vouch for his collegiality and his con- General in the Office of Legal Counsel, fair. geniality. But I am not confident which is the highest authority within Some of those now opposing the nom- Judge Alito will help provide the essen- the executive branch for answering ination of Judge Alito used to agree. tial check on executive excess that has legal questions and advising the federal When Judge Alito was in the process proven throughout our history to be government on complex statutory and of being confirmed to the Third Cir- the bedrock of our liberty. constitutional questions. cuit, one Senator said that Judge Alito During his hearings, he stated time He is also a distinguished student ‘‘obviously had a very distinguished and time again that the President is and scholar. He earned his bachelor’s record’’ and commended him for his ‘‘not above the law,’’ but in the end I degree from Princeton University and ‘‘long service in the public interest.’’ am not persuaded there is real convic- his law degree from Yale Law School, Another, referring generally to the tion behind that mantra. where he served as editor of the Yale nominations process, said ‘‘we need to I wish I could ignore my fears and Law Journal. get away from rhetoric and litmus vote my hopes. But the doubts are too You can also tell his qualifications tests, and focus on rebuilding a con- nagging and the stakes are too high for by the kind of human being he is—and structive relationship between Con- me to consent to Judge Alito’s nomina- by the kind that others know him to gress and the courts . . . we do not need tion to the Supreme Court. be. nominees put on hold for years . . . I thank the Chair, yield the floor, Judge Edward Becker, Senior Court while we screen them for their Repub- and suggest the absence of a quorum. of Appeals Judge for the Third Circuit, lican sympathies and associations.’’

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00051 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.078 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S196 CONGRESSIONAL RECORD — SENATE January 26, 2006 And the Senate did this some years hind the bench, and said: Fellows, we I am disappointed that some in this ago. I recall when the nomination of can save a lot of time. I had a phone Chamber would keep asking of Judge Ruth Bader Ginsburg to the Supreme call last night, and I pretty well know Alito and other nominees of the Presi- Court came before the Senate in 1993, I the facts. Just give me a little bit on dent, Whose side is he on? Is he on the was confronted with a nominee whose the law. side of the rich or the poor, of the big, past revealed that she had a vastly dif- The lawyers were pretty disappointed of the little? He must take an oath of ferent political ideology than my own. because it was obvious to them that office that says he will not be on any- My constituents from Idaho made clear the judge already had pretty well made body’s side and that when the lawyers just how different and how far out of up his mind about what to do about come before him to argue a case, they the Idaho mainstream that ideology that case. That is not what they ex- don’t know where he is going to come was. pected. They thought they were com- down except that he is going to come However, Justice Ginsburg was a ing before a judge—at least one side down according to his oath, according judge of great ability, character, intel- did—who was impartial and they to the law. lect, and temperament. Her record was wouldn’t know whose side the judge Americans have shown that they replete with evidence of these quali- was on. know better. I had the privilege of ties. And although at one time she had When Judge Alito is sworn in, he will being elected to the Senate in 2002. been a vocal advocate for particular take two oaths. The first is the con- That was an issue in my election: Did political issues, she had a sharp under- stitutional oath that we Senators took. the people of Tennessee want to con- standing of the limited character of the The second is the judicial oath, which firm President Bush’s judicial nomi- judiciary and her role within it as a makes a pretty good job description of nees, people who would interpret the neutral arbiter, not an advocate. a Justice on the Supreme Court: I—and law, not make it up as they go along? I voted for Ruth Bader Ginsburg. Not he will say his name—do solemnly The people of Tennessee don’t want a because she had the same ideology as I swear that I will administer justice judge who takes sides before the case is do, but because there was a lack of con- without respect to persons, and do argued. vincing evidence that she believed the equal right to the poor and to the rich, I said a few months after I arrived Supreme Court was a place for judicial and that I will faithfully and impar- here that I would not participate in a activism rather than restraint. tially discharge and perform all the du- filibuster of any President’s nominee. I Judge Alito’s record reflects the ties incumbent upon me as Associate might vote against them for one reason same belief, perhaps even more so than Justice of the Supreme Court under the or another, but I wouldn’t participate Justice Ginsburg’s. But now we have Constitution and laws of the United in a filibuster. Each one of them de- the same senators who supported him States. So help me God. serves an up-or-down vote. I am look- the first time around suddenly calling Judge Alito’s statements before the ing forward to casting this vote. his record ‘‘ominous’’ and uniting their Judiciary Committee suggest to me I would like to express my great re- opposition on the basis of his alleged that he understands very well his duty spect for the woman Judge Alito will ‘‘extreme views of executive power.’’ of impartiality under these oaths. He succeed. Sandra Day O’Connor was ap- In a recent hearing, Judge Alito ac- said he will uphold the Constitution. pointed by President Ronald Reagan. knowledged that ‘‘the President, like These are his words: She was the first woman appointed to everybody else, is bound by statutes The court should make its decision based the Supreme Court. She has distin- that are enacted by Congress’’ and that on the Constitution and the law. It should guished herself there by her intel- there is ‘‘no question about that what- not sway in the wind of public opinion at any ligence, her independence, and scholar- soever.’’ He also testified that ‘‘as a time. ship. She has been a wonderful rep- judge, he would have no authority and Judge Alito has said that the Con- resentative for our country. She is a certainly would not try to implement stitution applies to everyone: great symbol for other men and any policy ideas about federalism.’’ No person in this country is above the law. women, reminding us that American There is nothing in Judge Alito’s That includes the President and it includes history is a work in progress and that record to suggest otherwise. the Supreme Court. we had a long way to go when she was What his record does show is a man He said he won’t allow his personal appointed, as we still do. of character, competence, and integrity views to compromise his impartiality. She tells a wonderful story of how, who can apply the laws, regardless of He also said: when she graduated from Stanford Law his own views. I would approach the question with an School, she applied for a job with a Los It is hard to argue against that. open mind and I would listen to the argu- Angeles firm. Even though she grad- Let us vote to confirm Judge Samuel ments that were made. uated near the top of her class, she was Alito as an Associate Justice of the Su- The other side has taken an unusual told they only had places for women as preme Court. position. They keep asking, Whose side secretaries. A few years later, a part- The PRESIDING OFFICER. The Sen- is he on? Is he on the side of the rich or ner in the same firm was the Attorney ator from Tennessee. of the poor, the big or the little, the General of the United States, and he Mr. ALEXANDER. Mr. President, I Black or the White, business or labor? called her and asked her to fly to understand the leader may be coming. Is he on the side of the easterner or the Washington from Arizona so that he If he does, I will suspend my remarks westerner? For us to know whose side could talk with her about being Presi- to allow him to speak, then I will re- he is on would violate his oath. He dent Reagan’s appointee to the Su- sume. Are we in morning business? can’t tell us that. The American people preme Court. She has come a long way, The PRESIDING OFFICER. We are in know that. and she has helped our country come a executive session on the nomination of I had the privilege of being Governor long way. As we consider Judge Alito, Judge Alito. of my home State. In that process, I we certainly salute Justice O’Connor. Mr. ALEXANDER. I rise to make a appointed 50 judges. I never asked a I look forward to casting my vote for few remarks on Judge Alito. The Pre- single one of them whose side they the confirmation of Judge Alito. His siding Officer is from the next State were on. I appointed Democrats and resume reads like a resume any of us over. North Carolina and Tennessee Republicans. I appointed the first Afri- who were once in law school dreamed have the same mountains, and he may can American judges, and the first we could have: his degree from Yale, be familiar with a story we tell at women to be circuit court judges. I his work as an Assistant U.S. Attor- home about the old Tennessee judge. didn’t ask them where they stood on ney, as Assistant to the Solicitor Gen- It is told in one of our mountain abortion or the death penalty. I tried eral, as U.S. Attorney, nearly 16 years counties that the lawyers showed up to find out about their character, of service on the Third Circuit Court of one morning in the courthouse, all pre- about their intelligence, about how Appeals, and receiving a unanimous pared for a 3-day or 4-day trial. They they would treat people before them, ‘‘well qualified’’ rating from the Amer- had their litigants and their witnesses about their respect for law and their ican Bar Association, which is the and their books. They had done the re- understanding of our country. I have highest possible rating. He has based search. The judge came in, sat down be- been proud of those 50 appointees. his opinions and dissents on sound

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00052 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.080 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S197 legal arguments. He appears to be terms of bringing Judge Alito’s nomi- nounce what time we will be in tomor- unswayed by the particular details of nation to the floor of this body. I was row. We will be available as long as the case that are irrelevant to the legal disappointed that he came out of com- people would like to speak. If Saturday issues at stake. He seems to under- mittee on a party-line vote. That at is necessary, we will provide that time stand that he is not to be on anybody’s least raises the specter that this be- as well. The cloture vote will be at 4:30 side, that he is supposed to enforce the comes too partisan, and so I am very on Monday. Once cloture is invoked, we law impartially and respect the Con- concerned. All that is behind us now, would have a vote at 11 a.m. on Tues- stitution. In short, Samuel Alito has and it is time to move toward that up- day, January 31. demonstrated judicial temperament or-down vote. I yield the floor. suitable for a nominee. CLOTURE MOTION The PRESIDING OFFICER. The Sen- I believe he will serve with distinc- Mr. FRIST. Mr. President, I send a ator from North Carolina is recognized. tion. I am pleased to support his con- cloture motion to the desk at this Mrs. DOLE. Mr. President, it is my firmation as Associate Justice of the point. great privilege to support Judge Sam- U.S. Supreme Court. The PRESIDING OFFICER. The clo- uel A. Alito, Jr., an outstanding choice I thank the Chair. ture motion having been presented for Associate Justice of the United Mr. REID. I suggest the absence of a under rule XXII, the Chair directs the States Supreme Court. quorum. clerk to read the motion. Judge Alito is indeed one of the most The PRESIDING OFFICER (Mr. The bill clerk read as follows: qualified nominees to ever come before CHAFEE). The clerk will call the roll. CLOTURE MOTION the Senate. He has excelled at every The bill clerk proceeded to call the We the undersigned Senators, in accord- level—high school valedictorian—Phi roll. ance with the provisions of rule XXII of the Mr. FRIST. Mr. President, I ask Beta Kappa from Princeton—Yale Law Standing Rules of the Senate, do hereby School—Editor of the Yale Law Jour- unanimous consent that the order for move to bring to a close debate on the nomi- the quorum call be rescinded. nation of Samuel A. Alito, Jr., of New Jersey nal—Federal prosecutor—distinguished The PRESIDING OFFICER. Without to be an Associate Justice of the Supreme and esteemed judge. His judicial expe- objection, it is so ordered. Court of the United States. rience and record are vast. During his Mr. FRIST. Mr. President, I under- Bill Frist, Elizabeth Dole, Michael B. 15 years on the bench, Judge Alito has stand that earlier today, the distin- Enzi, Jim DeMint, Wayne Allard, Kit participated in more than 1,500 deci- Bond, John Ensign, Arlen Specter, sions. He has written more than 350 guished chairman of the Judiciary Rick Santorum, Kay Bailey Hutchison, Committee was on the Senate floor— opinions on issues across the legal Pete Domenici, Judd Gregg, Lisa Mur- spectrum. Of the 109 men and women actually, several times. During his last kowski, Norm Coleman, George Allen, discussion on the Senate floor, he Mitch McConnell. who have been chosen to serve this country on the Supreme Court, Judge asked unanimous consent for an up-or- Mr. FRIST. Mr. President, I ask Alito has spent more time on the Fed- down vote on this distinguished nomi- unanimous consent that the vote on eral bench than all but four. And no nee to the Supreme Court. As all of our cloture occur at 4:30 p.m. on Monday, nominee to the high court has come be- colleagues know, it is very important January 30, with the mandatory fore this body in the last 70 years with from our standpoint that this nominee quorum waived. I further ask consent as much Federal judicial experience. be given a vote that is up or down, that if cloture is invoked, notwith- Judge Alito is precisely the type of per- which reflects the advice and consent standing the provisions of rule XXII, son America needs on the Supreme of this body. the Senate proceed to a vote on the Court. It has been reported to me over the confirmation of the nomination at 11 course of the afternoon that there are a.m. on Tuesday, January 31. Finally, I Yet, despite Judge Alito’s obvious Members from the other side of the ask unanimous consent that all debate qualifications for this important post, aisle who have expressed their intent time on Tuesday prior to 11 a.m. be some members of the other party have to filibuster this nominee. As I have equally divided between the two lead- resorted to personal attacks in an ef- said at the outset, it is important to ers or their designees, and that cloture fort to deny this good and honorable me to make sure that this nominee be vote may be vitiated by the agreement public servant confirmation by the given plenty of time in terms of advice of the two leaders. Senate. They have questioned his in- and consent on the floor of this body, The PRESIDING OFFICER. Is there tegrity, questioned his commitment to and, indeed, he has had just that. It is objection? equal rights, and mischaracterized his time to establish an end point for that Without objection, it is so ordered. rulings from the bench. up-or-down vote. Although we have at- The Democratic leader is recognized. But in reality, the hostility towards tempted to set a time certain to have Mr. REID. Mr. President, I wish to Judge Alito has nothing to do with his that vote in the future, we have not express the appreciation on our side for integrity, his commitment to fairness, been able to receive that from the giving us adequate time to talk about or even his view of executive power. other side of the aisle. this most important nomination. The Rather, these attacks are simply a pre- Again, this is a nominee who is well distinguished majority leader could text upon which to oppose Judge qualified, has the highest ABA rating. have filed cloture last night because I Alito’s nomination. His critics’ real We heard seven of his circuit court fel- told him I didn’t have it cleared yet for fear is that he will refuse to rubber- low judges testify on his behalf. Now is a time-certain vote. There has been stamp the agenda advanced by liberal the time to bring his vote to the floor adequate time for people to debate. No interest groups. Make no mistake, they of the Senate. There is objection to one can complain in this matter that want Judge Alito—and the Supreme that, and it has been now 87 days. I be- there hasn’t been sufficient time to Court—to undermine marriage, reli- lieve this is the 87th day since he was talk about Judge Alito, pro or con. We gious expression, and protection of the initially nominated. We wanted to have have had a dignified debate. We have unborn. hearings in November and December, gone back and forth, and I hope this I do not know how Judge Alito will and there was objection, so we pushed matter will be resolved without too ultimately rule when confronted with those off until January. In those hear- much more talking. But everybody has difficult questions of law—and neither ings, Judge Alito testified and was a right to talk. do my colleagues—because Judge Alito present for 18 hours and answered over Again, I express my appreciation to has rightly refused to prejudge cases 650 questions. We have had debate the distinguished majority leader for that may come before him. But we can today and yesterday, and the debate making sure everybody had ample time all take comfort in the principles that will continue tomorrow and possibly to talk on behalf of Samuel Alito or will guide his approach—respect for the Saturday and Monday—however long it against him. Constitution and the rule of law, a takes for people to be adequately Mr. FRIST. Mr. President, just to commitment to hear all sides of an ar- heard. But it is time to set that vote. summarize, we will be here tonight for gument with an open-mind, impar- Even after we came out of com- as long as people want to speak. We tiality and fairness to all parties, big mittee, there was yet another delay in will be here tomorrow, and we will an- or small, powerful or powerless.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00053 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.082 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S198 CONGRESSIONAL RECORD — SENATE January 26, 2006 Judge Alito’s judicial record and Sen- stant, fixed star by which to navigate purpose,’’ and attempts to ‘‘distort the ate testimony demonstrate an unwav- the unpredictable and changing seas statute’s plain language to advance ering dedication to these principles. that we would encounter as a nation. policy goals not adopted by Congress.’’ His colleagues on the bench and in the Today, over 200 years later, the wis- Their conclusion: Justice Department, his clerks, and so dom of our Founders is clear as our In short, the only result that Judge Alito many others who know him well, have Constitution continues to serve as a ever tried to reach was the result dictated by testified that Samuel Alito is a man protector of liberty and individual free- the applicable law and the relevant facts. who will approach his job without bias. dom. But as this confirmation process Mr. President, I ask you, under our Like John Roberts, Samuel Alito un- continues to unfold, I fear that we have Constitution, what more could any- derstands that a Supreme Court justice strayed far from where the Founders one—any Republican or Democrat—ask should apply the law without regard to intended us to be. of a judge? his personal views. I am confident that I am afraid we have done a grave dis- Judge Alito’s hearings did serve a Judge Alito will bring this approach to service not only to Judge Alito but to useful purpose. We now see a new lit- mus test being used by the Democrats the Court. other qualified public servants who will Mr. President, there is no question certainly think twice before subjecting as their standard for nominees. They that confirmation hearings can be themselves to the dehumanizing proc- have decided that the judiciary should be used to advance their own liberal long, stressful, and exhausting—not ess this has become. As I watched policies. They are looking for a court only for the nominees but for their Judge Alito’s hearings before the Judi- that will act as a superlegislature, ena- families and friends as well. But in ear- ciary Committee, I was struck by the bling them to reform laws in a way lier days, a nominee with Samuel harsh attacks some leveled against that Americans have rejected at the him. I was proud of my fellow Senator Alito’s intellect, qualifications, and in- polls through the democratic process. tegrity would have been confirmed from South Carolina, Mr. LINDSEY The Democrats lecture us that we with overwhelming support. Indeed, GRAHAM, who expressed the outrage of must restore constitutional checks on the other side has not publicly ruled the American people and apologized to the expansion of Presidential power, out the possibility of an attempted fili- Judge Alito and his family for the be- while in the same breath assigning to buster. I fear that this precedent will havior of those on the committee, who the judiciary a constitutional preroga- have a chilling effect—keeping our best seemed more intent on slandering him tive reserved solely for Congress. I am and brightest from entering public than fairly examining his long, distin- having a hard time reconciling these service. guished legal career. two ideas, and I suspect the American The responsibility of the United Sadly, partisanship prevailed, and people are, too. States Senate to give advice and con- Democrats chose to vote in lockstep True to their strategy in recent sent to a Supreme Court nominee is against this committed public servant. years, the Democrats will say anything among the most significant given to Every Democrat on the Judiciary Com- but do nothing except block what us. It is vital to our Government’s con- mittee voted against this well-qualified should be done. stitutional structure that the Senate judge. Theirs is the philosophy of judicial discharge its duty by giving a Supreme Now, as this nomination comes be- activism that has led to decisions to Court nominee an up or down vote. And fore the full Senate, the unfair rhetoric ban the Pledge of Allegiance in our each Senator has ample resources upon continues. I find it sad that yesterday schools and allow local governments to which to make such a decision here. my colleague from Massachusetts, Sen- take an American’s home just to in- Judge Alito has a judicial record far ator KERRY, took to the floor of this crease tax revenue. Increasingly, surpassing that which has customarily Chamber to insinuate that he could, as judges have legislated precedents that been available to us when considering a he said, ‘‘almost imagine Karl Rove have little basis in written statute or nominee for the highest court in the right now whispering to Judge Alito, the Constitution but instead are based land. He also has answered more ques- ‘just say that you have an open mind, on their own personal opinions. tions during the course of his hearing say whatever it takes.’’’ This accusa- This point was vividly made when than any Supreme Court nominee in tion is insulting not only to Judge Senator KOHL called for ‘‘an expansive recent memory. If any question existed Alito—a man who, by all reports, is a and imaginative’’ interpretation of the about Samuel Alito’s integrity, judi- fair and honest public servant—but to Constitution, and further stated that cial temperament, or qualifications for the intelligence of every American who the approach of a judge ‘‘just applying the Supreme Court, it was put to rest shares Judge Alito’s understanding the law, is very often inadequate to en- before the Judiciary Committee. I ask that the proper role of a judge is to in- sure social progress [and] right historic that my fellow Senators therefore vote terpret the law, not make it. wrongs. . . .’’ Judge Alito eloquently addressed this to confirm Samuel Alito as Associate These types of slanderous accusa- flawed argument when he stated that Justice of the United States Supreme tions also fly in the face of diverse and numerous independent groups that while previous court decisions are de- Court. serving of our respect, if a decision is I yield the floor. have stepped forward to defend Judge not supported by the text of the Con- The PRESIDING OFFICER. The Sen- Alito’s character and qualifications. stitution and the laws passed by Con- ator from South Carolina is recognized. Many of his former colleagues, includ- gress, then it should be overturned. Mr. DEMINT. Mr. President, on Janu- ing several judges who have served Furthermore, he correctly pointed ary 4, 2005, I was privileged to take the with him, testified under oath that he out that it was exactly this process, oath of office as a U.S. Senator. I is fair and independent. not an ‘‘imaginative interpretation,’’ The American Bar Association, hard- raised my right hand and, along with that capably righted historic wrongs in ly known as a bastion of the rightwing, my colleagues, Republican and Demo- the landmark civil rights case Brown v. unanimously agreed to give Judge crat, pledged to support and defend the Board of Education. To quote Judge Alito their highest ranking of ‘‘well Constitution of the United States. Alito: Now, as this distinguished body con- qualified’’ for his ‘‘integrity, profes- When Brown was finally decided, that was siders the nomination of Judge Samuel sional competence, and judicial tem- not an instance of the court changing the Alito, I am reminded again of what perament.’’ meaning of the equal protection clause; it that obligation means. The legal ex- A bipartisan group of 51 former Judge was an instance of a court writing an incor- perts have had their say, so today I Alito clerks wrote that the judge was rect interpretation that had prevailed for a wish to speak not as a legal scholar but ‘‘guided by his profound respect for the long period of time. as a commonsense American citizen. Constitution and the limited role of It is clear that we are facing the When our Founding Fathers framed the judicial branch,’’ that he ‘‘applied grave danger of the slippery slope in our Constitution, they gave us an in- precedent faithfully and fairly.’’ Where which bad precedent—by which I mean credible gift: a democracy with checks Congress had spoken, ‘‘he gave the precedent not clearly derived from the and balances. We will always be in- statute its commonsense reading,’’ Constitution or a law passed by Con- debted to those visionary leaders who avoiding both ‘‘rigid interpretations gress—builds upon bad precedent. Be- understood that we would need a con- that undermined the statute’s clear fore you know it, the original meaning

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00054 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.034 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S199 of the law or phrase in question is lost tled to his nominee, and that the Sen- nominee before voting to confirm to history. ate’s role in the appointment process is him.’’ The Democrats are simply on the limited to confirming the President’s In considering Judge Alito’s nomina- wrong side of this important debate. choice, barring some serious disquali- tion to be an Associate Justice of the The Constitution is not a list of sug- fication with the nominee. In effect, Supreme Court, in my view, the ques- gestions. It is the constant fixed star the presumption—a very heavy pre- tion of his judicial philosophy is not that should guide every action we take. sumption—it is argued, is with the only a legitimate question but indeed The issue before us today reaches far nominee and his confirmation. an essential question. Inquiring into a beyond the confirmation of Judge In my view, this is not what the Con- nominee’s judicial philosophy does not Alito. He has more judicial experience stitution provides in requiring the Sen- mean discovering how he or she would than any Supreme Court nominee in ate’s advice and consent to a nominee decide specific future cases. the last 75 years. There is no question to the Federal bench, which is, after We are always being warned about that he is eminently qualified to sit on all, a third, separate, independent that, and there is no effort here to pre- the Nation’s highest Court. branch of our national Government. determine that. Rather, it seeks to as- Today we are debating which of these From a historical perspective, it is certain the nominee’s fundamental per- two diametrically opposed philosophies worth noting that over the course of spectives on the Constitution, how it will prevail in the confirmation of fu- our history, roughly one in every four protects our individual liberties, en- ture judges—the philosophy in which nominations to the Court has not been sures equal protection of the law, unelected judges create new law or the confirmed by the Senate. There have maintains the separation of powers and philosophy that returns a runaway ju- been 158 nominations to the Supreme the checks and balances encompassed diciary to acting within the bounds of Court in the course of the history of within our Constitution. the checks and balances established by the Republic, of which 114 were con- Judge Alito has served on the U.S. the Constitution. firmed. Not all of the others were re- Court of Appeals for the Third Circuit In my travels in South Carolina, jected. Some were rejected on votes since 1990, during which time he has time and again, South Carolinians have taken in this body, some withdrew, and written hundreds of published opinions, asked me to fight for judges who will some were never acted upon. But the and earlier he served 6 years in the place the rule of law above their per- notion of this heavy presumption runs U.S. Department of Justice. So there is sonal opinions. I support Judge Alito contrary to historical practice in the much to consider in his record and because he has shown that he will do Senate. Almost one out of every four— many lessons to be drawn from it. Of the issues the Court is likely to just that. The consistent winner in his actually a little more than one out of face, perhaps none is more basic than court has not been a person of business, every four—nominations has not been the proper reach and exercise of execu- a branch of Government, or political confirmed by the Senate. tive power. We are particularly focused ideology. It has been the Constitution As Michael Gerhardt, distinguished on this issue now, but it is an issue and our democracy. professor of constitutional law at the that has recurred constantly through- When the speeches are done and the University of North Carolina Law out our history as we seek to maintain vote is called, I hope there will be School, testified recently before the the careful balance the Founding Fa- those on the other side of the aisle who Judiciary Committee: thers placed in the Constitution. will put aside partisan politics. I pray Neither the plain language of the Appoint- They, in fact, established in the Con- that we can join together in affirming ments Clause nor the structure of the Con- stitution a complex system of demo- the rule of law by voting yes to con- stitution requires Senators to simply defer to a President’s Supreme Court nomination. cratic governance with three separate, firm Judge Samuel Alito as the next equal branches of the Government. At Associate Justice of the Supreme Court Let me repeat that quote: the center of this system lies not any of the United States. The American Neither the plain language of the Appoint- one of the three branches but rather a people deserve no less. ments Clause nor the structure of the Con- delicate balance amongst the three Mr. President, I yield the floor and stitution requires Senators to simply defer to a President’s Supreme Court nomination. branches. suggest the absence of a quorum. Looking at Judge Alito’s record, one The PRESIDING OFFICER. The In my view, the Senate’s duty to ad- sees a clear and constant deference to clerk will call the roll. vise and consent on nominations is an the executive, which, in my view, The legislative clerk proceeded to integral part of the Constitution’s sys- would significantly tip that delicate call the roll. tem of checks and balances among our balance with respect to our constitu- Mr. SARBANES. Mr. President, I ask institutions of government. A nomina- tional system. unanimous consent the order for the tion alone does not constitute an enti- The Constitution grants the legisla- quorum call be rescinded. tlement to hold the office. tive power expressly to Congress. It The PRESIDING OFFICER. Without Furthermore, some have said when gives the President power to only ap- objection, it is so ordered. considering a nominee that we look prove or veto legislation. The veto Mr. SARBANES. Mr. President, for only to their experience, their quali- power, of course, gives the President the second time in 4 months, the Sen- fications, their character. These are all very significant authority with respect ate is being called upon to carry out obviously very important criteria. But, to legislation. But if a bill becomes the one of its most important constitu- in my view, the nominee’s judicial phi- law, with or without the President’s tional responsibilities, which is to give losophy also must be given very serious approval, it then becomes his or her re- its advice and consent to a nominee to consideration. We are facing a decision sponsibility as the Chief Executive to be a Justice on the Supreme Court of to place someone on the Supreme see that the law is carried out, to see the United States. We have many seri- Court for life tenure. It could be 20, 30, that the law is properly executed. ous responsibilities in this body, but I or 35 years. Judge Alito is in his fifties, Judge Alito’s record demonstrates he must say I think this one ranks at or so we are talking about someone who is would seek to extend the President’s near the very top of any of the deci- going to shape the interpretation of power to allow for modification of law sions we will be called upon to make. our Constitution over decades. You by the executive alone. As one exam- That is because it falls uniquely to the view that when you consider a nominee ple, while he was an official in the De- nine Justices of the Supreme Court to to the Supreme Court. partment of Justice, he was instru- expound and interpret the Constitution The nominee’s judicial philosophy mental in advancing a policy of so- and the laws passed pursuant to it. The should be given very serious consider- called Presidential statements, to cre- installation of two new Justices within ation, as well put by former Chief Jus- ate a platform from which the Presi- a short time period has the potential to tice Rehnquist. Writing in 1959, long dent could seek to alter the underlying alter fundamentally the constitutional before he went on the Court, the late purpose of legislation passed by the framework that protects the rights and Chief Justice Rehnquist wrote that the Congress without the concurrence of liberties of the people of this Nation. Senate should follow the ‘‘practice of the Congress. Once again we see the argument thoroughly informing itself on the ju- Such a deference to executive power, being made that the President is enti- dicial philosophy of a Supreme Court I think, is of deep concern, especially

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00055 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.087 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S200 CONGRESSIONAL RECORD — SENATE January 26, 2006 as we see on occasion now when Presi- earlier which was so much a part of the now even talking about perhaps even a dents, rather than following constitu- thinking of that distinguished assem- filibuster. They have a litmus test. tional process by seeking legislative blage which gathered in Philadelphia They do not confirm any nominee of change through the Congress, instead in the summer of 1787 to frame our any President unless that nominee refuse to carry out statutes that the Constitution. makes some type of a commitment and Executive finds not to his liking. I have this concern about his view of passes a litmus test for their far-left Furthermore, under our constitu- the role the Court must play in pre- liberal agenda, whether that is gay tional system, the courts are the ulti- serving the constitutional balance of marriage or whether it is abortion on mate guarantors of individuals’ rights power among the three branches of demand or any of the rest of it. That is and the defenders of our liberties. On Government and whether he recognizes really what it is about. We do not talk this issue, too, Judge Alito has been the role of the Court as the ultimate about this. They kind of dance around quite clear and consistent. guarantor of every individual’s con- this issue, but that is the real reason Professor Goodwin Liu of Boalt Hall stitutional rights and liberties. they do not like this guy, because he is School of Law at the University of For the ordinary citizens all across not going to line up and give a litmus California at Berkeley summed up our country, the rulings of the Su- test to some liberal agenda. Judge Alito’s work in his testimony to preme Court can be of immense impor- One of the things that bothers me the Judiciary Committee: tance in terms of providing for their about this is, this is all new. This did Throughout his career, with few excep- rights and liberties. not happen in the past. I can remember tions, Judge Alito has sided with the police, Because I am not persuaded in this when Judge Scalia was up for con- prosecutors, immigration officials, and other regard about the appropriateness of firmation. People talk about Judges government agents while taking a Judge Alito’s nomination, when the Scalia and Alito not just because their minimalist approach to recognizing official time comes to vote, I will vote against error and abuse. names sound similar, but their tem- his nomination to become an Associate perament is the same and their back- In an editorial on January 12, the Justice on the Supreme Court of the ground is the same, their writings are New York Times made the same point United States. the same—very similar. We went in somewhat different terms: I yield the floor and suggest the ab- through a very long process with Judge [Judge Alito] time and again, as a lawyer sence of a quorum. Scalia during his confirmation, and he and a judge, . . . has taken the side of the big The PRESIDING OFFICER. The corporations against the ‘little guy,’ sup- ended up being confirmed by a unani- ported employers against employees, and clerk will call the roll. mous vote—a unanimous vote. routinely rejected the claims of women, ra- The assistant legislative clerk pro- If you will remember, that is when cial minorities and the disabled. ceeded to call the roll. William Rehnquist was taken from the In a memorandum that he submitted Mr. INHOFE. Mr. President, I ask Court and made the Chief Justice, when applying for a political position unanimous consent that the order for which created the vacancy. A lot of in the Justice Department in 1985, the quorum call be rescinded. people did not want to have someone Judge Alito made a series of very The PRESIDING OFFICER. Without who was a strict constructionist, but sweeping statements about his under- objection, it is so ordered. they realized he was qualified, and they standing of the Constitution. He wrote Mr. INHOFE. Mr. President, I have realized he was appointed by a Presi- that he was inspired to apply to law just learned that two of our distin- dent who was a Republican, Ronald school by his opposition to certain de- guished Senators, both from Massachu- Reagan, and they went ahead and con- cisions of the Warren Court—the Court setts, have made the statement that firmed him. It was unanimous. Now headed by Chief Justice Earl Warren— they are trying to drum up support for this is something that is really chang- decisions which are now considered a filibuster. This is not going to hap- ing now because there is no way in the bedrock provisions of constitutional pen. I know that people get desperate. world Judge Alito is going to be unani- law, decisions involving criminal pro- They get desperate because they are mously confirmed. cedure, the Establishment clause of the afraid something might happen to their Back in the Clinton administration, I Constitution, and reapportionment. liberal agenda. But the Constitution is remember so well when President Clin- In that very same memo, he also very clear. ton nominated Judge Ginsburg and took strong positions in opposition to We have discussed this, we have de- then Breyer. And keep in mind, we Re- Court decisions on affirmative action bated this, and there is not going to be publicans were not real excited about and the right to choose. When asked a problem there. But I think it is worth that. They did not have a very conserv- about the memo during his confirma- bringing to the attention of the Amer- ative background, and yet they were tion hearings, Judge Alito explained ican people that this is actually taking overwhelmingly confirmed. that the 1985 memo reflected his views place right now. Nowhere did our That is the change I see happening. It of the Constitution at that time. He Founding Fathers say that to confirm is not like it used to be. Ginsburg was did not, however, explicitly disavow a judge, you had to have a super- 96 to 3. Breyer was 87 to 9. They were those views, and nothing in the hearing majority, and I do not believe this is overwhelmingly confirmed. record demonstrates they have going to happen. Not too long ago, just the other day, changed. In fact, his decisions as a Let me share a couple thoughts with JEFF SESSIONS, who is our colleague judge on the Third Circuit reflect that you. First of all, I am not a lawyer. I from Alabama, made a statement. He these are the views he has continued to am not a member of the Judiciary said if we really get into this thing hold and to espouse. Committee. In a way, that puts me in where we are looking at it philosophi- The Baltimore Sun concluded in an a position, perhaps, that is a little bet- cally, then you are going to have to re- editorial that: ter than a lot of my colleagues who member—and the way he worded it Despite Judge Alito’s periodic assurances are. In fact, most of the people who was—‘‘the knife cuts both ways.’’ He of having an open mind, the disturbing im- have spoken are members of the Judi- said if this new standard is affirmed, pression from the hearings is that on critical ciary Committee. But, by now, we have then it will be more difficult for future issues such as abortion, civil rights and the heard so much about Judge Samuel Democrat Presidents to have their limits of executive power, he does not. Alito’s resume, about the type of per- nominees confirmed. I agree with this. That is a very perceptive observation son he is. I would have to say, yes, he If a Democrat President comes up and with respect to Judge Alito’s testi- is guilty, he is guilty of being a strict makes a nomination, we would change, mony before the Judiciary Committee. constructionist, of being a strict inter- the same way they are changing during I am not persuaded that Judge Alito preter of the Constitution, and he will this. Maybe the litmus test would be recognizes either the critically impor- rule according to settled law. I do not discussed at that time. tant role the Supreme Court must play think anyone has any doubt in their On the plane coming up here just a in preserving the constitutional bal- mind that he would. few minutes ago—we just landed, after ance of power among the three The problem is that some of the this recess—my wife and I were talking branches of our Government, that deli- Democrats have made it clear they are about this, and I told her about the cate balance to which I made reference going to make this a partisan fight, comments of Senator SESSIONS. I said:

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00056 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.089 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S201 What I think I will do in my speech on some merit to it, let’s stop. The easiest case in which Judge Alito sided with Afri- the floor tonight on the confirmation way to refute that is to read an edi- can-Americans . . . [who were] alleging ra- of Judge Alito is make the statement torial that was in the Washington Post. cial bias. that if they adhere to this litmus test, There is not a person who belongs to He went on to say: that if I am around—I do not think this body or anyone within earshot of What is remarkable is that any reporter there is going to be a Democrat Presi- what I am saying right now who is could have overlooked [case after case after dent, but if there is and I am still in going to say the Washington Post is a case] in which Alito has sided with African- the U.S. Senate, I am going to do the conservative publication or a Repub- Americans alleging racial bias. same thing. I am going to hold them to lican publication. It is not. Yet what In a few minutes, I am going to be a litmus test. My wife said: No, don’t they said about Alito was: specific on some of these, but there do that. Don’t stoop to that just be- [J]udge Alito’s dissents are not the work of would be too many to cite for the cause they are doing it. So I am not an unblinking ideologue. . . .[T]hey are the amount of time we have. Senator KEN- doing it. I learned a long time ago work of a serious and scholarly judge whose NEDY’s statements are inaccurate and that—my wife and I have been married arguments deserve respect—a respect evi- untrue. I know he wishes they were 46 years—I do what I am told. dent among his colleagues even when their true, but they are not. These guys are So anyway, this is something that is positions differ. grasping at straws. a change that we have observed, and I And that is not the Washington Then Senator BIDEN came in with in- think it warrants our consideration. Times; this is the Washington Post accurate statements on Presidential Now, the Democrats are also making making this statement. So I would say, treatment toward the State. Senator outrageous accusations, trying to jus- like Senator KENNEDY, that Senator BIDEN charged Alito with ruling in tify partisan votes. I believe in my SCHUMER, what he said is just flat not favor of the State against the indi- heart that they do not believe these ac- true. I am sure he wishes it were true, vidual. This is what he said: cusations they are making, but what but it is not. But as I’ve tried diligently to look at your they do want to do is have some excuse Here is another statement made by record, you seem to come down more often so they can go home and say, ‘‘I voted Senator KENNEDY. He is trying to make and give the benefit of the doubt to the out- against this guy,’’ but not tell them a position that Judge Alito wants, fit against whom discrimination is being al- the real reasons. Let’s go over some of through the Presidential signing state- leged. You seem to lean—in close cases, you these accusations that are made. ments—Presidential signing state- lean to the state versus the individual. I start out with Senator KENNEDY, ments are statements that are made by The facts belie that. The fact is, who inaccurately stated that Alito op- the President when a new law is Alito’s record shows he consistently poses the one-person, one-vote prin- passed—to say: This is my interpreta- approaches each case based on the law ciple. I will go ahead and give the tion of it. Well, he likes to imply that and the facts. He rules for plaintiffs quote. Senator KENNEDY, on January 9 Alito supports giving the President ab- and for defendants when the law sup- said: solute power. Senator KENNEDY said: ports him. He rules for the corporation It expresses outright hostility to the basic You argued that the Attorney General or the State when the law supports principle of one person, one vote, affirmed by should have the absolute immunity, even for their position. This is the appropriate the Supreme Court as essential to ensuring actions that he knows to be unlawful or un- approach for a Federal judge. It is clear that all Americans have a voice in their gov- constitutional; suggested that the court that Alito understands the importance ernment. should give a President’s Signing Statement of the independence of the judiciary Now, the fact is, Judge Alito has great deference in determining the meaning and has a healthy respect for its role as stated that the principle of one person, and the intent of the law; and argued, as a the bullwark against executive over- one vote is a bedrock principle of matter of your own political and judicial philosophy, for an almost all-powerful presi- reaching. American constitutional law. He has dency. Alito often cites Alexander Ham- never taken issue with that principle. ilton. I think Alito has quoted Alex- Well, the fact is, the President’s bill- And to quote him, he said: ander Hamilton more than anyone else, signing statement is a device developed [T]he principle of one person, one vote is a at least it seems that way to me. He long before Alito came along. fundamental part of our constitutional law. said: . . . [and] I do not see any reason why it They try to imply that he had some- [A]s Alexander Hamilton aptly put it in should be reexamined. And I do not know thing to do with this. This has been Federalist 78, the courts should carry out that anybody is asking for that to be done. embraced by Democratic and Repub- [the judicial power] with ‘‘firmness and inde- . . . I think that is [a] very well settled lican Presidents for years and years, pendence.’’ ‘‘Without this,’’ he observed, ‘‘all [principle] now in the constitutional law of all the way back to Presidents Monroe the reservations of particular rights or privi- our country. and Jackson. The suggestion that Alito leges [in the Constitution] would amount to I would adhere to that. Well, he could somehow invented this notion is pat- nothing.’’ not be more emphatic than that. ently absurd. So, again, Senator KEN- Alito continued: Again, Senator KENNEDY—what he said NEDY is wrong. His statement is not When a constitutional or statutory viola- is not true. I know he wants it to be true. tion [by other governmental institutions] is true. He wishes it were true, but it is He further cites false and inaccurate proven, a court should not hesitate to im- not. Knight Ridder analysis. This is rather pose a strong and lawful remedy if that is Then along came Senator SCHUMER interesting. Senator KENNEDY made what is needed to provide full redress. Some from New York. In attacking Judge more outrageous statements this time of the finest chapters in the history of the Alito’s jurisprudence, Senator SCHU- about Alito’s view of government Federal Courts have been written when fed- eral judges, despite resistance, have stead- MER tried to paint Alito as someone searches. Senator KENNEDY, on Janu- fastly enforced remedies for deeply rooted who is ‘‘too conservative.’’ His state- ary 10: ment was: constitutional violations. Mr. Chairman, at this point, I’d like to in- During his 15 years on the bench, Judge Alito, in case after case, you give clude in the appropriate place in the RECORD the impression of applying careful legal rea- the Knight Ridder studies that concluded Judge Alito has repeatedly ruled to re- soning, but, too many times, you happen to that Judge Alito never found a government strain executive authority, reflecting reach the most conservative result. search unconstitutional. his understanding of the role of the ju- Well, the fact is, Senator SCHUMER’s Knight Ridder’s writers, Stephen diciary to protect the constitutional characterization of Alito overlooks the Henderson and Howard Mintz, have re- rights, separation of powers, and so bulk of Alito’s record of nearly 5,000 peatedly been accused of biased report- forth. What Senator BIDEN said is not votes as a court of appeals judge ing on Alito’s record. The National true. I know he wishes it were. reached on the law and the facts, which Journal’s Stuart Taylor wrote: Next we had Senator FEINSTEIN. She was approaching something to which I are inconsistent with Senator SCHU- I focus here not . . . on such egregious fac- MER’s picture of Alito. tual errors as the assertion on C–SPAN, by am particularly sensitive. I chair the Now, if you question this, the state- Stephen Henderson of Knight Ridder news- committee called Environment and ment that was made by Senator SCHU- papers, that in a study of Alito’s more than Public Works. The Presiding Officer is MER, if you believe there might be 300 judicial opinions, ‘‘we didn’t find a single a member of that committee. We deal

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00057 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.091 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S202 CONGRESSIONAL RECORD — SENATE January 26, 2006 with environmental issues. Senator injury, not just have this great concern discrimination. Senator KENNEDY FEINSTEIN mischaracterized Alito’s en- over activities such as pollution. wrongly stated that Alito had never vironmental record. What we are saying here is that Sen- written an opinion related to race dis- Let me say this for anyone who ator FEINSTEIN should have read this. crimination, implying that he could be might be listening: If there is nothing He was interpreting a law he may have a racist. Senator KENNEDY said: better going on right now, these Sen- agreed on or may not have, but this Judge Alito has not written one single ators I am very critical of, I love them was sent down. This was settled law, opinion on the merits in favor of a person of dearly. That is possible. It doesn’t hap- established by the U.S. Supreme Court. color alleging race discrimination on the job: pen in the other body, seeing a Senator Alito’s vote, which he didn’t write, was in 15 years on the bench, not one. here who also served in the House at one based in law. I think what Senator He said that on January 9. The facts the time that I was there. We can love FEINSTEIN said was not true. It needs to are that Alito has repeatedly ruled in our friends, our Senators, with whom be answered. That is the answer. favor of minorities making allegations we serve, and we can detest their phi- Another one that Senator KENNEDY of racial discrimination in employ- losophy and their agenda. I learned researched. Senator KENNEDY charged ment. One such case is Smith v. Davis, this the hard way. that Alito rarely votes for the little 2001, in which Alito voted to reverse a I will share this story. Back in 1994, guy. Senator KENNEDY charged Alito grant of summary judgment against an I came from the House to the Senate. with false accusations saying that he African-American man’s claim that he And operating as I had always operated was biased toward the rich and power- had been discriminated against in em- in the House, there happened to be a ful. This is Senator KENNEDY talking ployment on the basis of race. Another Senator on the floor named Wendell about the rich and powerful. He was bi- one is Zubi v. Johnson & Johnson Med- Ford from Kentucky. He was known as ased toward the rich and powerful and ical, Inc. Alito voted to reverse a dis- the junkyard dog of the Senate. I dis- against the little man. I will use the trict court’s grant of summary judg- agreed with him. I came down here. quote that he used. He said: ment against the plaintiff. That was the opening day, the first day And on the cases he decided, in case after Judge Alito and his colleagues con- I was elected and confirmed in a spe- case after case, we see legal contortions and cluded that the female African-Amer- cial election. I went down and I took inconsistent reasoning to bend over back- ican plaintiff had introduced sufficient him on. It was mean. It was wicked. wards to help the powerful. evidence to question whether the em- And we are yelling and screaming. This is on January 12, stated by Sen- ployer had, in fact, given her lower Afterwards I felt pretty good. I went to ator KENNEDY. Time after time during quality assignments due to her ‘‘objec- go back to the Russell Building, went his hearings, Alito and other Senators tive’’ scores on certain evaluations, as down the elevator and ran into none have repeated instances in which Alito the employer maintained. There are other than Senator BOB BYRD. did rule for the little guy. In cases in- many more cases. BOB BYRD said: Ride along with me. volving criminal law, employment and I ask unanimous consent to print in He said: Young man, I appreciate your labor law, immigration law, and oth- the RECORD the other cases. spunk. ers, Judge Alito has consistently ruled There being no objection, the mate- I liked that because that happened to for plaintiffs or defendants as the facts rial was ordered to be printed in the be November 17, 1994. It was my 60th and the law demanded. RECORD, as follows: birthday. I will give some examples. In Zubi v. In Collins v. Sload (2004), Alito joined a per He said: Young man, I appreciate AT&T Corporation, in 2000, Alito dis- curiam opinion reversing the District your spunk, but this isn’t the way we sented from a case foreclosing a plain- Court’s dismissal of a Pro Se Title VII com- do it in the Senate. He explained to me tiff’s opportunity to advance his claim plaint alleging racial discrimination. The the history of the Senate, how it must of race discrimination. Alito would District Court had dismissed the complaint have been divinely inspired, so that have applied a longer statute of limita- for failure to exhaust administrative rem- there is a genuine love for your fellow tions to let the claim go forward. That edies. The panel concluded that the question is just the opposite of what was as- could not be resolved on the record and re- Senators, something that doesn’t exist manded for further proceedings. in the other body. I don’t know why I serted by Senator KENNEDY. In Pope v. AT&T (2001), Alito joined a per said all that. In another case, Caruso v. Block- curiam opinion reversing the District But Senator FEINSTEIN accused Alito buster-Sony Music Entertainment Cen- Court’s grant of summary judgment against of ruling against the Clean Water Act. ter at the Waterfront, writing for the an African American man alleging race dis- She said: unanimous panel, Judge Alito reversed crimination under Section 1981. The panel In Public Interest Research Group of New in part the district court’s grant of concluded that the plaintiff had submitted Jersey v. Magnesium Electron, a citizens en- summary judgment for Blockbuster- significant evidence that AT&T’s stated rea- vironmental group sued a chemical manufac- Sony ‘‘E-Centre’’—this is a big corpora- son was pretextual, and remanded for trial. turer under the Clean Water Act for pol- tion—and against a disabled patron. Mr. INHOFE. The facts, as we have luting a river used by members of the group The plaintiff was William Caruso. He demonstrated, speak for themselves. . . . your decision, as I understand it, was was a disabled veteran of Vietnam who Samuel Alito is not a racist, not a based upon your conclusion that the environ- used a wheelchair, brought suit against rightwing extremist who believes in an mental group did not have standing to sue E-Centre under the Americans with executive branch with sole authority under the Clean Water Act because even Disabilities Act claiming that the and rules only in favor of the powerful though members of the environmental group wheelchair areas in the pavilion do not but a thoughtful, mainstream, fair, ex- had stopped using the river due to the pollu- perienced interpreter of the Constitu- tion, they did not prove any injury to the en- provide wheelchair users with lines of vironment. The decision, if broadly applied, sight over standing spectators. The tion. He is a good guy. I have heard would have gutted the Citizen Lawsuit Pro- lawn area is not wheelchair accessible. many people say that he is probably vision of the Clean Water Act . . . so you see Judge Alito explained that even one of the most qualified persons ever where the concern comes with respect to though the Department of Justice’s to be nominated for this High Court. overthrowing something on a technicality standards do not require that wheel- Those liberal Senators who are des- that can have enormous implications. chair users must be able to see the perately grasping at any straw to find That is what Senator FEINSTEIN said. stage when other patrons stand, the E- justification to vote against Judge Keep in mind what Alito’s vote was. He Centre must make assembly areas like Alito, they have their litmus test. In did not write the opinion. He voted in the lawn accessible to people in wheel- order to be confirmed to the U.S. Su- this case. It was a straightforward ap- chairs. He concluded: preme Court, a judge must embrace all plication of the Supreme Court’s con- We reject the argument that assembly of the leftwing’s extremist agenda, an trolling precedent in Lujan v. Defend- areas without fixed seating need not provide agenda that is so unpopular in America ers of Wildlife. Most of us remember access to people in wheelchairs. that the American people reject it, and Manuel Lujan who later became Sec- Again, Alito’s stellar record proves it must be legislated from the bench. retary of Interior. This decision was a that Senator KENNEDY’s statement is That is the problem they have. 1992 decision in which the Supreme false. When my service in the Senate is Court required that in order to file The next one I will mention was Sen- over, one of the greatest honors I will suit, a plaintiff must allege the actual ator KENNEDY’s statement on racial have had, for the sake of America and

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00058 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.093 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S203 for the sake of my 20 kids and with whom I believe the people in my Justice Ginsburg received. I call upon grandkids, is to vote to confirm Sam- hometown and in my State would feel my colleagues on the other side of the uel Alito to the U.S. Supreme Court. comfortable. And not just South Dako- aisle to summon their better angels, I yield the floor. tans but Americans everywhere, at put aside their desire to score political The PRESIDING OFFICER. The Sen- least the silent majority of Americans. points, and instead work to ensure a ator from South Dakota. The character attacks on Judge Alito dignified confirmation process. Mr. THUNE. Mr. President, I rise to by the loud left have backfired because The Supreme Court gets the last voice my strong support for the nomi- the majority of the American people word on some of the most challenging nation of Judge Samuel Alito to be As- have figured it out. They don’t need and divisive issues of our day. That is sociate Justice of the Supreme Court. the Senator from Massachusetts or the why those on the Court must be dedi- Judge Alito has demonstrated and Senator from New York to tell them cated to the rule of law and the prin- dedicated his life to public service, what they need to know. Judge Alito ciple of judicial restraint. Throughout from serving in the Army Reserve to told them everything they needed to his career in public service, Judge working as a prosecutor for the Federal know in the hearings, and the more the Alito has shown the qualifications and Government. political left attacks and delays and temperament essential to serving on For the past 15 years, Judge Alito has demonstrates, the more partisan they the Supreme Court. been a model jurist on the court of ap- appear to the American public and the I ran for the United States Senate for peals, and his record reflects a def- more their true agenda is exposed. the opportunity to cast votes like the erence to the political branches of our Judge Alito’s quiet and thoughtful one I will cast on this nomination. Government that is all too often lack- demeanor was clearly on display during When I asked South Dakotans for their ing among some on the bench. vote, I assured them that I would do The guiding question for each of us in his confirmation hearings. During my best to see that the courts are pop- determining a nominee’s fitness for these hearings, Judge Alito was ex- ulated with smart, qualified, and prin- this post should be whether the person tremely forthcoming and candid in his cipled people who understand that the is dedicated to applying the Constitu- responses to questions, all 650 ques- tion to every case considered by the tions. For over 18 hours he responded appropriate role of the judiciary in our Court and not adding to or changing thoroughly and thoughtfully to the full Constitutional Republic is not to make the Constitution’s text to suit his or spectrum of questions and questioners, laws but to apply them fairly to all. Judge Alito is eminently fit and her own personal policy preferences. both those who were sincere and those Judge Alito has clearly shown that who were sarcastic. qualified to serve as an associate jus- he will approach every case with an All of these things have convinced tice on the Supreme Court. That is why open mind and apply the law as it is, me that Judge Alito has the ability I will vote in favor of his confirmation, rather than what he thinks it should and temperament necessary to be an and I urge my colleagues to do the be. outstanding justice on the Supreme same. As Judge Alito has said, a judge can- Court. I yield to the floor. not have an agenda and cannot have a It is unfortunate that some on the The PRESIDING OFFICER. The Sen- preferred outcome in any particular other side have decided to make the ator from Alabama is recognized. case. I am convinced that he will not nomination process about politics rath- Mr. SESSIONS. Mr. President, I be an activist on the court and will er than about qualifications. Sadly, it thank our colleague, Senator THUNE, conscientiously exercise restraint in seems the other side is engaging in an for his excellent remarks. I know he his role as a justice. effort to ensure a large opposition vote cares deeply about the judiciary. I Judge Alito has risen to his station to score political points, rather than know that he talked about it a lot in in life from relatively humble begin- giving a well-qualified nominee like his campaign. He is such a talented nings. As he stated in his introductory Judge Alito the strong vote he de- new Member of the Senate. There are remarks before the Judiciary Com- serves. many reasons he is here today, and I mittee, his parents instilled in him a When Justice Ginsburg, a former gen- suggest that one of the reasons is be- love of learning and, through their ex- eral counsel for the American Civil cause the individual he ran against— ample, the importance of persistence Liberties Union, was nominated by the former Democratic leader, Tom and hard work. President Clinton, she received nearly Daschle—led an obstruction of highly I had the opportunity to meet with unanimous support—96 votes—despite qualified judicial nominees. We are see- Judge Alito after he was nominated the fact that many Republican Sen- ing that again today. last fall. During this meeting, we dis- ators strongly disagreed with her Now this Democratic leader, Mr. cussed the role of the judiciary and views. She replaced the much more REID, has urged his colleagues to vote some of the broad principles set forth conservative Judge White. Yet no one ‘‘no’’ in the party conference. Some in our Constitution. I was impressed by was complaining about her shifting the have tried to say that is not so. But Judge Alito’s quiet answers and Court dramatically to the left. Sen- when the Democratic leader goes be- thoughtful demeanor during that meet- ators voted for her based on her quali- fore his colleagues and urges them to ing. fications. vote ‘‘no,’’ it has an impact. It sets this Judge Alito is the kind of person who When Justice Breyer, a former staffer as a political vote rather than allowing would fit in very well with my con- for Senator KENNEDY, was nominated and encouraging each individual Mem- stituents in South Dakota. He is the by President Clinton, he received 87 ber to vote their own conscience. It is kind of guy you would see at the local votes, and again many of those who going to reduce the number of votes hardware store or at a school activity. voted in his favor strongly disagreed that Judge Alito will receive because Judge Alito would meet what I call the with his views. people try to follow their leaders when ‘‘Murdo’’ test. Murdo is my hometown. Justice Ginsburg and Justice Breyer they can. But it is not right. About 600 people live there. They are received strong support because of This is a fabulous nomination. Judge pretty plain spoken people. They use their qualifications and because Sen- Sam Alito is one of the finest nominees common sense to solve problems. They ators put aside politics in the interest to ever come down the pike. He and believe in the rule of law. And they of a dignified confirmation process. Chief Justice Roberts were fabulous as have an inherent sense of fairness when Judge Alito is also well qualified. He witnesses, with incredible academic it comes to making sure that the law unanimously received the highest rat- backgrounds and experience and a applies fairly to all. If you listen to ing from the American Bar Associa- proven record of support from Demo- anyone who has served on the court tion, the benchmark that used to be crats, liberals and conservatives, and a with or worked with Judge Alito, those considered the gold standard for evalu- professional record and resume in both are the attributes they ascribe to him. ating nominees to the Federal Courts. cases that are superb. But they do have He has tremendous respect from those Judge Alito is clearly a man of high in- a little difference of opinion, appar- who know him best. tegrity and intellect. No one disputes ently, from some in the Senate. Sen- Unassuming and unpretentious, that. He deserves a large vote in the ator THUNE made reference to it. Judge Judge Alito is the kind of individual U.S. Senate, just as Justice Breyer and Alito and Judge Roberts believe it is

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00059 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.095 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S204 CONGRESSIONAL RECORD — SENATE January 26, 2006 their duty to follow the law. It is their lishing a religion or prohibiting the vice to you on all these issues. It would responsibility as judges to be neutral free exercise of your religion. So this is violate attorney-client privilege. That umpires, to not allow their personal, a recent phenomenon to see such a hos- is something I cannot do and will not political, social, or religious views to tile approach to public expressions of do. I am in an untenable position. I am impact their interpretation of the laws religious faith in America. That is not honored to serve you. I would like to before them. our heritage, not the way the people continue to serve as your chief counsel, That is what a judge is all about in understood the Constitution; that is which she does today. But I ask you to the American legal system, for heav- not what the Constitution says. withdraw my nomination. en’s sake. What kind of threat is that But our colleagues don’t like that. Is That is all that was about. Goodness. when you have a judge who believes in almost amusing, as we have gone It indicates how desperate they have that philosophy? through the committee process, to see gotten to find complaints about this Judge Alito’s whole judicial approach them grasp in desperation to find fine judge. to life and to his work is that a judge something to complain about with By the way, Judge Alito has not been should put aside personal views and be Judge Alito. None of them could agree a part of any of this national security, a neutral, fair umpire, deciding the dis- on what they didn’t like. They bounced Washington, inside-the-beltway stuff. crete case before the court, based on a all over the place mostly. It sounded Judge Alito has been sitting on a Fed- fair and honest finding of the facts and like they didn’t like President Bush. eral bench in the Third Circuit—living an honest application of the law to They were having grievances about in New Jersey—outside Washington, those facts. That is what a judge is Abu Ghraib prison, which President DC. He has not had a single case I am supposed to do. Bush had nothing to do with. It was aware of dealing with any of these na- We have Members on the other side not the policy of the administration or tional security or Presidential wartime insisting that a judge’s ideology ought the Army, and the people who abused powers issues. He comes at it as a to play a part in the judge’s decision- those prisons are serving jail time skilled scholar, a person with a demon- making process. That goes squarely in today. strable record of fairness, and great in- the face of what our American legal (Mr. ALLEN assumed the chair.) tellectual capacity. I think when these system is all about. Why do we give our Mr. SESSIONS. Mr. President, they cases come before him, as some may, judges, let me ask, a lifetime appoint- want to say this has something to do he will decide them fairly. That is what ment to the Federal bench? Why? Be- with that. They have been hankering everybody who knows him says. cause we wanted them to be free from for Harriet Miers, which is rather odd, Another deal they keep talking about pressure and do their duty day after I think. They have suggested somehow is the unitary executive. Have you day, fairly and honestly finding the that some rightwing cabal caused heard that phrase? They say: Oh, he is facts truly in the case and applying the President Bush to withdraw her nomi- terrible; he believes in a unitary execu- law to those facts—not as Judge Alito nation. She didn’t have a lot of con- tive. It is almost amusing. Senator said, to engage in implementing ‘‘grand stitutional experience. I am not aware KENNEDY and others have used this theories.’’ I thought that was a good she has ever argued a case before the phrase more than once: He believes in phrase. That is the kind of judge Presi- Supreme Court. Very few lawyers have, an all-powerful Executive. Now, you dent Bush promised, and that is the although Judge Alito has argued 12 know no judge believes in an all-power- kind of judge Senator THUNE promised cases before the U.S. Supreme Court. ful Executive. You have to watch to support when he ran. That is the She has not served as a judge. He has judges. They can strike down anything kind of judge I have believed in, in my served 15 years as a Federal appellate they want to. They are not going to career. I practiced for 15 years, for a judge. give the President unlimited power. long time, before Federal judges. I re- At any rate, she is a wonderful per- They are not going to give Congress spect them. We had some magnificent son who has many fine qualities. I am unlimited power. But a good judge will Federal judges that I practiced before. not at all sure that she would be any follow the Constitution and will con- I lost some cases and I won some cases, more restrained or any more liberal in tain the executive if it goes too far and and every good lawyer does. But we all her interpretation of judicial decisions will contain the legislative branch if it know one thing—that as long as that than Judge Alito. I don’t know what goes too far. He or she will show per- judge does his best, day after day, to her philosophy would be. But I do know sonal constraint and not go too far as honestly find the facts and apply the this: They have complained steadfastly a member of the court. I think some law, we can live with that. Your clients that Judge Alito somehow is a tool of need to remember that. Some have can live with that, too, even though President Bush to defend his national gone too far, in my opinion. they may be disappointed about the security policy and his war on ter- This has not been about Judge Alito. case. If we feel the judge is going to re- rorism and that Judge Alito is going to It has been about an opportunity to at- define marriage because he didn’t like be a part of his efforts to arrogate pow- tack President Bush. That is what ev- the way the State of Massachusetts de- ers to the executive branch. erything seems to come down to here. fined marriage, and he is just going to Who has been at President Bush’s That is why it is so political. say the Constitution somehow made right arm for 5 years? It is Harriet They said he recommended, in de- reference to marriage, and a marriage Miers. She is the counsel to the Presi- fending a former Attorney General of now is no longer between just a man dent of the United States. She is his the United States who had been sued and a woman, but between two men or personal lawyer. She sits right by him. personally for monetary damages, that two women—this is going to be some- She has been involved in every one of they not defend the case on the basis how found in the Constitution? And he these decisions about executive branch that the Attorney General had abso- is going to impose this on the people? powers, National Security Agency lute immunity from suit, but suggested What kind of power is that? Would five wiretaps of al-Qaida telephone con- he argue that he had a qualified immu- unelected judges, with lifetime ap- versations. She has been part of all of nity. pointments, who are utterly unac- that. You think they would have let The former Attorney General of the countable to the American people, say her come through here? They say: Oh, United States believed he had absolute that the phrase ‘‘under God’’ in the we think she would be a fine nominee. immunity, and Judge Alito then, as a Pledge of Allegiance is not constitu- What would they have done to her? young lawyer in the appellate section tional? Next, I suppose they will come Those in this Chamber who think she of the Department of Justice, was in here with a chisel and right up there would have gotten a pass on those obliged to make the argument, if it was on the wall in this Chamber they will issues, raise your hand. And she knew defensible in any way, for absolute im- want to take out those big letters say- that. That is why she withdrew herself. munity, and he made it. ing ‘‘In God We Trust.’’ I suppose that She wrote the President a letter and That didn’t mean he believed the At- will be the next thing we have. said: It has been insisted that if I come torney General can never be sued. But Well, that is not called for in the before the committee, I have to divulge I am going to tell you, the Presiding Constitution. The Constitution simply my private conversations with you, the Officer has been a Governor of Vir- says Congress shall make no law estab- President of the United States, my ad- ginia. People will sue for anything. If

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00060 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.096 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S205 every Governor, if every Senator, if President has the power to wiretap the unitary executive. What is it? What every attorney general can be hauled you. does it mean to you? into court and be sued because they Judge Alito clearly explained that Boy, he just hit it right on. I was sur- voted on some bill or did something the unitary executive theory has noth- prised. He even rebuked the members and they have to pay out of pocket ing to do with the scope of Executive of the committee for misinterpreting these judgments or lawyers to defend power, the separation of powers doc- the theory, he said this: themselves, you can shut down the trine, Presidential signing statements, I think what has been said about the uni- Government. We do have some cases or the constitutionality of independent tary Executive in these hearings is very mis- where a Government official has abso- agencies. As he stated during the hear- leading. The unitary Executive says nothing lute immunity and sometimes they ings: about whether the President must obey the have qualified immunity. The unitary executive doesn’t have to do law. Of course he must obey the law. It talks I was Attorney General of Alabama. I with the scope of executive power . . . I don’t about the President’s power to control the executive branch. had to defend the Governor and other see any connection between the concept of a unitary Executive and the weight that [It] is not an invention of the Reagan Jus- officials in various lawsuits, some of tice Department, it was propounded in the them as bogus as $3 bills, but you have should be given to signing statements in in- terpreting statutes. first administration of Franklin Delano Roo- to go down there and defend it. Are you sevelt who objected to the powers of the going to try the case for 6 months or, That is so correct and so weird that Comptroller General who tried to fire a Fed- if he has immunity, do you assert the it even has to be clarified. Do we have eral Trade Commissioner, and who referred immunity and get the case dismissed in any lawyers in this body? to himself [this Comptroller] as the general He goes on to say: the beginning? You get the case dis- manager of the executive branch. That is the origin of the notion, the FDR administra- missed. That is what any good attorney I don’t think I’ve ever challenged the con- stitutionality of independent agencies. tion. for the Department of Justice would do. Instead, this is what Judge Alito said Some Comptroller General declared He has never, in any way, supported about the unitary executive theory— he was the general manager of the ex- an all-powerful Executive or an all- this is what he said: ecutive branch and Roosevelt didn’t powerful executive branch that is ‘‘un- [I]t is the concept that the President is the like it and he talked about that and checked by the other two branches of head of the executive branch. The Constitu- said the executive branch is headed by tion says that the President is given the Ex- the President. Here, America, the Gov- Government.’’ Where did they come up ecutive power. with those kinds of ideas? ernment, is one. It cannot sue itself. This is what he said in a speech at Does anybody dispute that? I am Judge Edward Becker was aware of law school about the case of ex parte quoting him. all these things. He is one of the most Milligan: It expressed that ‘‘the Con- And the idea of the unitary Executive is distinguished Federal appellate judges that the President should be able to control in America. He appeared at the com- stitution applies even in extreme emer- the executive branch, however big it is or gency.’’ The Constitution does apply in mittee with a group of his colleagues however small it is . . . It has to do with from the Third Circuit. They have the case of extreme emergency. That is control of whatever the executive is doing. It what Judge Alito wrote some time ago. doesn’t have to do with the scope of Execu- served with Judge Alito, many of them He also said at the hearings: tive power. It does not have to do with for his full 15-year career—most of The Bill of Rights applies at all times, and whether the Executive power that the Presi- them at least 7 or more years—during it is particularly important that we adhere dent is given includes a lot of unnamed pow- his tenure on the Third Circuit Court to the Bill of Rights in times of war and in ers or what is often called inherent power. of Appeals. times of national crisis. Isn’t that a good statement? We have For those who may not fully under- That is what he told us under oath in heard a lot of discussion for some time stand it, an appellate judge on the committee. He also said: now about this problem of the Presi- court of appeals handles the appeals No person in this court is above the law, dent, and he is supposed to head the ex- from the trial courts where juries and and that includes the President and that in- ecutive branch. We have all these agen- witnesses testify. Everything that is cludes the Supreme Court. Everybody has to cies that act like independent nations. said in those trials is written down. If follow the law, and that means the Constitu- When the FBI and DEA get together somebody is unhappy with the result tion of the United States, and it means the and reach an agreement, they enter and thinks they did not get fair treat- laws that are enacted under the Constitution into memorandums of understanding, ment, they will appeal to the court of of the United States. like a treaty. The agencies are both appeals and the court of appeals will He also said this: under the executive branch, under the review the record, listen to the argu- Neither the President nor anyone else, I President’s authority, but they get so ments, consider the law, and determine think, can authorize someone to . . . over- big for their britches that they think what the facts are in the case and rule ride a statute that is constitutional. . . . The whether they got a fair trial. President has to follow the Constitution and they have their own independence. the laws, and it is up to Congress to exercise There is a concern that the President If you are not happy with the court its legislative power. . . . The President has is put in charge of the entire executive of appeals’ decision, then you appeal to to comply with the fourth amendment, and branch and is supposed to supervise all the Supreme Court and the Supreme the President has to comply with the stat- kinds of different federal agencies—the Court does basically the same thing, it utes that are passed. Immigration and Customs Enforcement reviews the transcript and the record So it is clear that Judge Alito and Bureau, the Corps of Engineers, the and considers the decision of the court his opponents are not talking about Drug Enforcement Agency, the FBI, all of appeals that decided it. the same thing when they talk about of them. And then the Congress takes That is what Judge Alito has been the unitary executive theory. all the management of power and gives doing for 15 years. That is what his life According to Judge Alito, the ‘‘uni- it to all the individual executive has been. He goes to work and reads tary executive theory’’ is not a theory branch people so that the President transcripts. He is not listening to peo- that supports ‘‘inherent authority to can’t even run the agencies, and then ple’s phone calls. He is not approving wiretap American citizens without a they blame him when things go wrong. search warrants, such as State county warrant, to ignore congressional acts That is the way we do things around judges, and magistrates judges, and at will, or to take any other action he here. city judges can do. Judge Alito has saw fit under his inherent powers.’’ I asked Charles Fried, who was a been up here doing the very same kind Those items have to do with the former Solicitor General of the United of work he would be doing on the Su- scope of Executive power, which is an States—the person who argues cases on preme Court. entirely different matter from this the- behalf of the United States before the What do they say about how he per- ory of a unitary executive. They have U.S. Supreme Court—and had been a formed in that role? This is what Judge tried to take this theory of a unitary professor at Harvard Law School before Becker said about Judge Alito’s tem- executive, which has been around a that teaching judicial philosophy: Mr. perament. Sam Alito: long time, and twist it to say it has Fried, you have been around a good is gentle, considerate, unfailingly polite, de- something to do with whether the while. You have heard this talk about cent, kind, patient and generous. . . . I have

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00061 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.097 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S206 CONGRESSIONAL RECORD — SENATE January 26, 2006 never once heard Sam raise his voice, express We had one of our Senators, remark- those qualities which my colleagues and I anger or sarcasm, or even try to proselytize ably, make this statement. It takes agree he has, do not permit him to be influ- . . . he expresses his views in measured and your breath away, really. enced by individual preferences or any per- tempered tones. sonal predilections. If there is a case involving an employer Pretty good job description of what and employee and the Supreme Court has Judge Garth did say he was very you would want in a Supreme Court not given clear direction, Judge Alito will careful about those words. He knew Justice, wouldn’t you think? rule in favor of the employer. some were suggesting that Judge Alito, What about the question of integ- Then he goes on to say if it is a pros- who served for a time in the Reagan rity? What did Judge Becker, one of ecutor or defendant, ‘‘he will rule for Department of Justice and had been the great judges in the United States the prosecutor.’’ unanimously confirmed by this Senate today, say about his integrity? That is not what these people who to the court of appeals, after being ap- Sam Alito is the soul of honor. . . .I have know him say. That is not what his pointed by former President Bush— never seen a chink in the armor of his integ- record says and demonstrates. That is some were somehow saying that he rity, which I view as total. not the opinion of anybody who knows might allow his views, whatever they Judge Becker, on Sam Alito’s intel- the man. are—and I have not seen any evidence lect: Judge Maryanne Trump Barry, who that he has particularly strong polit- He is brilliant, he is highly analytical, and was appointed to the court in 1999 by ical views—that he might allow them meticulous and careful in his comments and President Clinton, had previously to influence him. his written work. . . . He is not doctrinaire, worked with Alito in the U.S. Attor- He said that: but rather open to differing views and will neys Office in New Jersey in the 1970s. . . . his commitment to the law, which my often change his mind in light of the views of This is what Judge Maryanne Trump colleagues and I agree he has, do not permit a colleague. Barry said about him. him to be influenced by individual pref- Isn’t that a fine statement of what In the Attorney General’s office, Samuel erences or any personal predilections. you would want in a judge? Alito set a standard of excellence that was If you served on a bench a long time What about his approach to the law? contagious, his commitment to doing the with a judge, you will know whether They say he has views and he is going right thing, never playing fast and loose that is true. This is a Democratic indi- to let his views impact his decision- with the record, never taking a shortcut, his vidual. making process. What does Judge emphasis on first-rate work, his fundamental Judge John Gibbons said this about decency [were clear]. Becker, who served with him for 15 it. He said that he was now rep- She goes on to say: years and watched him and sat right resenting some prisoners in Guanta- beside him on that same court of ap- Judge Alito is a man of remarkable intel- namo, his law firm was, and he was not lectual gifts. He is a man with impeccable peals, say? happy with the way they had been legal credentials. He is a fair-minded man, a treated. But he said: He scrupulously adheres to precedent. I modest man, a humble man, and he reveres have never seen him exhibit bias against any the rule of law. I am confident, however, that as an able and legal scholar and a fair-minded Justice, class of litigation or litigants. . . . His credo This is not a man who is going to get has always been fairness. he will give the arguments . . . careful and on the Supreme Court and rule against thoughtful consideration without any pre- Judge Anthony Scirica, Chief Judge every defendant. As a matter of fact, disposition in favor of the position of the ex- of that Third Circuit, has been on the there is a host of cases in which he ecutive branch. bench for 20 years. This is what Judge ruled for the defendant, sometimes in So this Judge Gibbons had been on Anthony Scirica said about him. Alito: dissent. He is certainly not going to the bench and is now retired from the is a thoughtful, careful, principled judge who rule for the employer if the employee bench. He is now in private practice. is guided by a deep and abiding respect for has been wronged. Judge Ruggero His law firm, for reasons of which I am the rule of law. Aldisert, appointed by President Lyn- not aware, was representing prisoners He goes on to say Alito ‘‘is intellec- don Johnson, a Senior Judge who has in Guantanamo. He thinks they are en- tually honest.’’ written a number of books, who cam- titled to trials, I suppose. But he said Let me insert here a parenthetical. I paigned for John F. Kennedy and ran absolutely he trusted Judge Alito to am telling you, those of us who tried a for office as a Democrat, said this give him a fair trial. lot of cases before judges, want a judge about Alito. He is a remarkable man, I He went on to add: who is honest intellectually and does must say. Alito is a careful, thoughtful, intelligent, not play games, does not twist facts, Judicial independence is simply incompat- fair-minded jurist who will add to the does not twist the law so he can justify ible with political loyalties and Judge Court’s reputation as the necessary exposi- a decision, and most people know Alito’s judicial record on our court bears tor of constitutional limits on the political which judges do that. witness to this fundamental truth. branches of the government. Judge Scirica said that Alito: Judge Leonard Garth has been on the Judge Tim Lewis, African American, is intellectually honest, he is fair, he is eth- bench since 1973. Judge Alito, right out served on the Third Circuit Court of ical. He has the intellect, the integrity, the of law school in 1976, clerked for Judge Appeals for 7 years before going into compassion and the judicial temperament Garth. Judge Garth found him to be: private practice focusing on civil that are the hallmarks of an outstanding fiercely intelligent, deeply motivated, and rights and human rights law. Judge judge. extremely capable. Tim Lewis joked about sitting on the He goes on to say: While Alito was Judge Garth’s law leftwing of the panel. Judge Lewis His personal views, whatever they may be, clerk, Judge Garth: claimed he is: do not jeopardize the independence of his developed . . . a deep respect for Sam’s ana- openly and unapologetically pro-choice and legal reasoning or his capacity to approach lytical ability, his legal acumen, his judg- always has been. each issue with an open mind. ment, his institutional values, and, yes, even He said that: All of us have some beliefs, unless we his sense of humor. . . . Judge Alito never had an ideological bent are a potted plant or already beneath He said Alito: or a result-oriented demeanor or approach. the soil. But the question is, when you is an intellectually gifted and morally prin- He is: put a robe on somebody with a lifetime cipled judge. intellectually honest. appointment, are they going to allow Some may not like it. They are going Then he went on to add this, he em- some personal belief they may have to to think there is something wrong with phasized it: not give the litigants before the Court that. Judge Garth said he was a ‘‘mor- If I believed that Sam Alito might be hos- a fair shake and allow their personal ally principled judge.’’ tile to civil rights as a member of the United bias, their disagreement with the law, He is a sound jurist, always respectful of States Supreme Court, I can guarantee you or their personal concern, to override the institution and the precepts that led to that I would not be sitting here today. That what their duty is? Alito is absolutely decisions in cases under review. is the first thing I want to make clear. not this kind of a judge. He goes on to say: He said Alito ‘‘will not have any So what else does he say about him? His fairness, his judicial demeanor and ac- agenda-driven or result-oriented ap- Judge Alito is modest and unassuming. tions, and his commitment to the law, all of proach.’’

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00062 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.099 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S207 That was one of the more remarkable period of morning business with Sen- The international community must panels we have ever had. Judge Alito ators permitted to speak for up to 10 now turn its attention to the plight of has served with Republicans and Demo- minutes each. Sam Rainsy, Cheam Channy and other crats—experienced judges, extraor- The PRESIDING OFFICER. Without political prisoners. It is time for His dinarily wise, very interesting to listen objection, it is so ordered. Majesty King Sihamoni to derail Hun to, and their respect for him was re- f Sen’s campaign by immediately par- markable. doning Rainsy, Channy, and all other RESOLUTION ON CAMBODIA Indeed, the ABA panel member—an political prisoners. Only then will de- African American who represented the Mr. MCCONNELL. Mr. President, I mocracy have a chance to get back on University of Michigan in the affirma- commend the majority leader for offer- track in Cambodia. tive action admissions case which went ing an important resolution on Cam- The challenge for Cambodia’s many before the Supreme Court—said that bodia yesterday that expressed concern donors is straightforward: hold Hun Judge Alito was ‘‘held in incredibly with the systematic campaign by Sen and his government accountable high regard’’ by the ABA. Prime Minister Hun Sen and the Gov- for their actions. While this may re- I will share a few words from Judge ernment of Cambodia to undermine de- quire some soul searching by U.S. al- Alito himself before I wrap up. mocracy and the rule of law in that lies, particularly France, Germany, In his testimony, he was asked about country. and Japan, the status quo in Cambodia cases that may come before him. I have Scholars can argue when this cam- serves only the interests of Hun Sen to say nobody would dispute that in re- paign was initiated—after U.N.-spon- and the ruling Cambodian People’s cent years he was more forthcoming sored elections in 1993 or before the than any nominee we have had in dis- Party. With a donor’s conference ap- coup d’etat in 1997—but no one disputes proaching in March 2006, the inter- cussing openly how he would analyze a that it culminated early this year in case, without going too far and pre- national community must demand a the arrest of human rights leader Kem judging it in any way. He said these return on the significant assistance Sokha and other reformers in Phnom words, which I think reflect good judg- provided to Cambodia. Penh on charges of defaming the Prime ment and wisdom of judgment. As over $2 billion has been invested By the way, we have a transcript, but Minister. in the democratic development of that all of this was without notes. He spoke As the resolution points out, no sec- country since the 1991 Paris Peace Ac- so beautifully. He looked right at us. tor in Cambodia has been spared in this cords, it is not too much for the inter- This is what he said: campaign. national community to demand that Good judges develop certain habits in Opposition leader Sam Rainsy was the Prime Minister and his government mind. One of those habits in mind is to have stripped of his parliamentary immu- conduct themselves in a manner that a delay in reaching a conclusion until every- nity last year and sentenced to 18 respects the constitutional rights and thing has been considered. Good judges are months in absentia for defaming the dignity of the people of the Cambodia. always open to the possibility of changing Prime Minister. f their minds based on the next brief that they Radio journalist Mom Sonando was read, or the next argument that is made by arrested for criminal defamation. LISTENING TO TEENS ABOUT GUN an attorney who is appearing before them, or VIOLENCE a comment that is made by a colleague dur- Even Rong Chhum, president of the ing the conference on the case when the Cambodian Independent Teachers Asso- Mr. LEVIN. Mr. President, the 2005 judges privately fully discuss the case. ciation, was similarly charged. Teen Gun Survey conducted by the That is what we want in a judge. We To be sure, other champions of free- Uhlich Children’s Advantage Network, want a judge who comes in with a phi- dom in Cambodia have suffered worse also known as UCAN, produced some losophy and a demonstrated record of fates. Former parliamentarian Om very interesting and troubling results. not rushing to judgment, not allowing Radsady and labor leader Chea Vichea UCAN conducts this survey each year any personal views he may have to in- were brutally murdered by unknown as a way of measuring teens’ attitudes fluence him. He analyzes a case, but assailants. Justice remains similarly about gun violence. For 2005, the sam- has a record that has won the respect elusive for a grenade attack against a ple included nearly 1,000 teenagers of colleagues, liberals and conserv- conference hosted by the Buddhist Lib- from around the country who re- atives, Republicans and Democrats, the eral Democratic Party in 1995 and a sponded to a variety of questions about bar, and his colleagues on the bench. more brutal attack against a peaceful their exposure to gun violence and its He is an extraordinary nominee. I rally organized by the Khmer Nation impact on their lives. could not be more proud of him. He did Party—headed by Sam Rainsy—in 1997. The UCAN survey makes clear that a magnificent job in testifying. I never The immediate and strong condemna- far too many teens are exposed to gun thought that anyone would testify to tion of the arrest of Sokha and his col- violence. According to the survey, the level of John Roberts because he is leagues by international donors and nearly half of the respondents person- such a skilled attorney and advocate. multilateral organizations, including ally know someone who has been shot, But this judge in his own way was the United Nations and the World and more than a third know another every bit as good. He made us all Bank, is certainly welcomed. U.S. Am- teenager who has threatened to kill proud, and President Bush should be bassador Joe Mussomeli and Deputy someone with a gun. Almost one out of very proud for submitting his nomina- Chief of Mission Mark Storella deserve every five teenagers who responded tion. praise for standing by Sokha through- said they heard gunshots in their I am pleased to support him. I will be out the crisis. Assistant Secretary of neighborhood at least once a month, voting for him, and I hope my col- State Christopher Hill’s trip to the re- and 38 percent believe they could get a leagues will do the same. gion succeeded in freeing Sokha from handgun if they wanted to. Disturb- I thank the Chair. I yield the floor. prison, and I know he cringes at Hun ingly, 39 percent of the respondents I suggest the absence of a quorum. Sen’s characterization of Sokha’s re- fear they will be shot someday. The PRESIDING OFFICER. The lease as a ‘‘gift’’. This may have been The results of the survey also raise clerk will call the roll. The legislative clerk proceeded to simply a poor choice of words, but it significant concerns about the per- call the roll. serves to affirm the world’s perception ceived safety of our schools. More than Mr. FRIST. Mr. President, I ask of Hun Sen as a Southeast Asian dic- a third of respondents said that they unanimous consent that the order for tator. are afraid gun violence might take the quorum call be dispensed with. The news that Hun Sen will drop place in their school, and 21 percent The PRESIDING OFFICER. Without charges against Sokha and other civil feel that they are safer away from objection, it is so ordered. society reformers is not a cause for school than when they are in school. celebration. History shows that Hun These results should be taken seri- f Sen is a habitual offender, and we can ously. Many teens who are exposed to MORNING BUSINESS expect continued harassment and in- gun violence may turn to violence later Mr. FRIST. Mr. President, I ask timidation against those championing in life. A study completed last year by unanimous consent that there now be a freedom and the rule of law. a University of Michigan researcher

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00063 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.101 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S208 CONGRESSIONAL RECORD — SENATE January 26, 2006 found that adolescents who were ex- will be missed by all who knew him. I Committee’s majority staff. Marianna posed to gun violence were more than ask my colleagues in the Senate and O’Gorman, from the University of twice as likely to carry out violent every American to remember the sac- Queensland, is in Delegate ENI acts within the following 2 years. rifice that Major Anderson gave for our FALEOMAVAEGA’s office. Rachel Thom- Fifty-six percent of the teens surveyed freedom. son, from the University of Western by UCAN said that they believe violent f Australia, is with the Joint Economic teenagers learn their behavior from Committee’s minority staff. UNI-CAPITOL WASHINGTON their parents. We must do more to Australia continues to be one of INTERNSHIP PROGRAM break this cycle. America’s strongest allies. Our great- Unfortunately, most of those who re- Ms. STABENOW. Mr. President, each est gift is the friendship born of shared sponded to the UCAN survey believe year congressional offices host Amer- values. I thank the Uni-Capitol Pro- that the Government doesn’t under- ican college students as interns, to gram and these Australian interns for stand the realities of gun violence for help our future leaders learn about their hard work, and I wish the pro- teenagers and would not care if they public service and see how their Gov- gram continued success. were a victim of gun violence. In addi- ernment works firsthand. f Today, I would like to let you know tion, 41 percent of the teens surveyed ATTACK ON CHASIDIC SYNAGOGUE about a program that gives Australian said they would benefit from more vio- IN MOSCOW lence prevention programs and re- students the opportunity to experience sources. our democratic and legislative process. Mr. BROWNBACK. Mr. President, on We should listen to what teenagers It’s called the Uni-Capitol Washington January 11 of this year, at the Moscow around the country are saying about Internship Program. Headquarters and Synagogue of Agudas guns. Their responses to the UCAN sur- My office is taking part in it right Chasidei Chabad of the Former Soviet vey show that Congress is not doing now, along with others in Congress. Union, a so-called ‘‘skinhead’’ attacked enough to protect young people from Twelve of Australia’s brightest are worshippers with a knife and wounded the threat of gun violence. I urge the here, pursuing knowledge and under- eight persons. I know that all Members Senate to do more to help ensure our standing. In so doing, we are all finding of this body deplore this terrible crime teenagers do not have to fear guns in new reasons to like an old friend. and send our prayers and best wishes to their schools and communities by pass- The Uni-Capitol was born of the ef- all those injured during the assault. The victims of this senseless violence ing commonsense gun safety legisla- forts of Eric Federing. Eric worked for include Rabbi Isaac Kogan, who testi- tion and by supporting violence reduc- more than a decade in the House and fied before an April 6 Helsinki Commis- tion programs. the Senate as a senior adviser. While sion hearing I convened last year con- f doing this job, he lectured across Aus- tralia on American Government, poli- cerning Chabad’s ongoing efforts to re- HONORING OUR ARMED FORCES tics, and news media. In an effort to trieve the Schneerson Collection of sa- cred Jewish texts from Moscow. The MAJOR STUART ANDERSON forge ties across the Pacific and for the Mr. GRASSLEY. Mr. President, I betterment of both societies, Eric put Rabbi is a noted refusenik who was ap- speak today with deep sorrow, for we together this idea in Washington in pointed by the Lubavitcher Rebbe, have lost a truly brave American and 1999. Rabbi Menachem M. Schneerson, to be soldier. MAJ Stuart Anderson died on The selection process for the stu- part of Agudas Chasidei Chabad of the Former Soviet Union. In addition to January 7, 2006, when the Blackhawk dents is competitive and intellectually nurturing Judaism throughout the helicopter he was in crashed just out- rigorous, ensuring the highest quality former USSR, that organization has side Tal Afar in northern Iraq. His heli- applicant. All participating students fought tirelessly to win the return of copter was part of a two helicopter are comprehensively matched with a the Schneerson Collection to its right- team providing support for the 101st congressional office and corresponding ful owners in the United States. The Airborne Division. Major Anderson was position. They come from a wide range entire U.S. Senate has twice petitioned assigned to the 3rd Corps Support Com- of academic disciplines and bring as the Russian leadership to release those mand, Army National Guard. My con- much knowledge and understanding to holy texts. dolences go out to his wife, Tori; his our offices as they take away. As chairman of the Helsinki Commis- For the past 7 years, Mr. Federing’s two daughters, Keely 15, and Kirsten sion, I have followed closely the issue 10; his parents, Claremont and Nancy students have approached this oppor- of anti-Semitism and extremism Anderson; and many other family and tunity with vim and vigor. I am around the world. Unfortunately, the friends. pleased to have Douglas Ferguson from brutal attack at the Agudas Chasidei Major Anderson grew up in Hoffman, the University of Canberra working in Chabad synagogue fits what appears to MN, and then graduated from Benson my office this year. I would also like to be a rising trend of attacks on ethic High School in Benson, MN. He at- submit into the RECORD the names of and religious minorities in Russia. tended North Dakota State University. other Australian interns participating Let me present one disturbing sta- Maj. Anderson had been living in Du- in this year’s program: tistic. According to an article in the buque, IA, for the past 5 years and was Andrew Brookes, from Melbourne Moscow News last year, the Moscow scheduled to return home this fall. He University, is in Senator CHRISTOPHER Human Rights Center reports that Rus- was a supply and service support rep- DODD’s office. Ryan Conroy, from sia has up to 50,000 skinheads with ac- resentative for his Des Moines based Deakin University, is in Representa- tive groups in 85 cities. This, as op- unit; he made sure combat troops in tive SAM FARR’s office. Jenna Davey- posed to an estimated 70,000 skinhead some of Iraq’s most dangerous areas Burns, from Melbourne University, is activists throughout the rest of the had the proper supplies. in Representative LOUIS SLAUGHTER’s world. Major Anderson joined the Army Re- office. Sarah Dillon, from Deakin Uni- To make matters worse, there are in- serve in 1984, became an officer in 1989, versity, is in Representative ALCEE dications that the police themselves and was serving in his second tour of HASTINGS’s office. Jessica Gurevich, are sometimes involved in racist at- duty in Iraq. Many of Major Anderson’s from Melbourne University, is in Rep- tacks. Earlier this month, a Russian colleagues define him as a trusted and resentative MIKE CASTLE’s office. Scott newspaper carried a story about the humble leader. LTC Thomas Nielsen Ivey, from the University of Western Moscow police assault of a passerby wrote that ‘‘Major Anderson was one of Australia, is in Representative LORET- who happened to be from the North the finest officers I have known in my TA SANCHEZ’s office. Saul Lazar, from Caucasus. According to persons from 28-year career.’’ Major Anderson’s fa- Deakin University, is in Senator CHUCK the North Caucasus, such beatings are ther said that ‘‘he was very proud of HAGEL’s office. Abbie McPhie, from a common occurance. being in the military . . . he just loved Macquarie University, is in Represent- What was uncommon was the fact it.’’ He was known to sprinkle in ative JERROLD NADLER’s office. Linda that the gentleman in question is a humor with his training and with his Nelson, from the University of colonel in the Russian Army and an annual Christmas cards. His humor Wollongong, is with the House Science internationally known cosmonaut.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00064 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.040 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S209 Let me be clear. Anti-Semitism, big- EXECUTIVE AND OTHER transmitting, pursuant to law, the report of otry, extremist attacks and police bru- COMMUNICATIONS a rule entitled ‘‘Food Additives Permitted for Direct Addition to Food for Human Con- tality are not found only in Russia. Our The following communications were own country has not been immune to sumption; Synthetic Fatty Alcohols’’ (Dock- laid before the Senate, together with et No. 1994F–0153) received on January 16, these challenges to rule of law and accompanying papers, reports, and doc- 2006; to the Committee on Health, Education, human dignity. uments, and were referred as indicated: Labor, and Pensions. Nevertheless, as Russia accedes to EC–5346. A communication from the Acting the chairmanship of the G–8 and the EC–5335. A communication from the Office of Regulation Policy and Management, De- Deputy Assistant Administrator, Office of Council of Europe, there will be in- partment of Veterans Affairs, transmitting, Diversion Control, Department of Justice, creased scrutiny of its commitment to pursuant to law, the report of a rule entitled transmitting, pursuant to law, the report of internationally recognized standards of ‘‘Use of Diagnostic Code Numbers; Schedule a rule entitled ‘‘Implementation of the Ana- human rights practices. I urge the au- of Ratings—Neurological Conditions and bolic Steroid Control Act of 2004’’ (RIN1117– thorities in Russia to do everything in Convulsive Disorders’’ (RIN2900–AM32) re- AA95) received on January 16, 2006; to the ceived on January 16, 2006; to the Committee Committee on the Judiciary. their power to combat ethnic and reli- EC–5347. A communication from the Clerk on Veterans’ Affairs. gious intolerance and safeguard the re- of Court, United States Court of Federal EC–5336. A communication from the Direc- ligious freedom and physical safety of Claims, transmitting, pursuant to law, the tor, Regulations Management, Office of Reg- all it citizens. annual report of the United States Court of ulation Policy and Management, Depart- Federal Claims for the year ended September f ment of Veterans Affairs, transmitting, pur- 30, 2005; to the Committee on the Judiciary. suant to law, the report of a rule entitled TRIBUTE TO MATTHEW HOLT EC–5348. A communication from the Ad- ‘‘Elimination of Copayment for Smoking ministrator, Energy Information Adminis- Mr. LEAHY. Mr. President, I rise Cessation Counseling’’ (RIN2900–AM11) re- tration, Department of Energy, transmit- today to speak about Matt Holt, who ceived on January 16, 2006; to the Committee ting, pursuant to law, a report entitled ‘‘An- has served the Senate with distinction on Veterans’ Affairs. nual Energy Outlook 2006’’; to the Com- EC–5337. A communication from the Direc- for 25 years. As a benefits and retire- mittee on Energy and Natural Resources. ment counselor and deputy for em- tor, Regulations Management, Office of Reg- EC–5349. A communication from the Direc- ployee benefits and financial services ulation Policy and Management, Depart- tor, Strategic Human Resources Policy, Of- in the Senate Disbursing Office, Matt ment of Veterans Affairs, transmitting, pur- fice of Personnel Management, transmitting, suant to law, the report of a rule entitled pursuant to law, the report of a rule entitled Holt has committed his talents and en- ‘‘Traumatic Injury Protection Rider to ergy to serving Senators and staff for ‘‘Locality-based Comparability Payments’’ Servicemembers’ Group Life Insurance’’ (RIN3206–AK78) received on January 16, 2005; over two decades. (RIN2900–AM36) received on January 16, 2006; His career here in the Senate has to the Committee on Homeland Security and to the Committee on Veterans’ Affairs. Governmental Affairs. been exemplary. He is not only hard- EC–5338. A communication from the Acting EC–5350. A communication from the Chief, working and dedicated but also friend- Under Secretary of Defense (Comptroller), Border Security Regulations Branch, Depart- ly, helpful, and patient. He always transmitting, pursuant to law, the Depart- ment of Homeland Security, transmitting, takes the time to fully answer our ment of the Navy Report of Violation of Ad- pursuant to law, the report of a rule entitled questions, and he has become a tremen- ministrative Control of Appropriation Regu- ‘‘Extension of Port Limits of Rockford, Illi- dous resource for the Senate Dis- lations Case 04–01; to the Committee on Ap- nois’’ (CBP Dec. 05–38) received on January propriations. 26, 2006; to the Committee on Homeland Se- bursing Office. EC–5339. A communication from the Under Matt is truly an asset to the Senate, curity and Governmental Affairs. Secretary of Defense (Comptroller), trans- EC–5351. A communication from the Gen- and all of us here in the Senate com- mitting, pursuant to law, a report of a viola- munity are grateful for his outstanding eral Counsel, Office of Government Ethics, tion of the Antideficiency Act by the Depart- transmitting, pursuant to law, a report rel- dedication and hard work. An avid out- ment of the Army, case number 02–06; to the ative to conflict of interest laws relating to doorsman, Matt is looking forward to Committee on Appropriations. executive branch employment; to the Com- spending time fishing, camping, and EC–5340. A communication from the Sec- mittee on Homeland Security and Govern- hiking with his wife Jeanne and his retary of Health and Human Services, trans- mental Affairs. children Jessica and Ben. He leaves mitting, pursuant to law, a report entitled EC–5352. A communication from the Chair- ‘‘Health, United States, 2005’’; to the Com- with our appreciation and best wishes man and Chief Executive Officer, Farm Cred- mittee on Health, Education, Labor, and it Administration, transmitting, pursuant to for a happy and relaxing retirement. Pensions. He certainly has earned it. law, the Administration’s Performance and EC–5341. A communication from the Sec- Accountability Report for Fiscal Year 2005; f retary of Health and Human Services, trans- to the Committee on Homeland Security and mitting, pursuant to law, reports entitled BOY SCOUT TROOP 89 Governmental Affairs. ‘‘The National Healthcare Quality Report EC–5353. A communication from the Assist- Mr. OBAMA. Mr. President, I rise 2005’’ and ‘‘The National Healthcare Dispari- ant Secretary for Legislative Affairs, De- today to say a few words about a spe- ties Report 2005’’; to the Committee on partment of Homeland Security, transmit- cial group of constituents. This April Health, Education, Labor, and Pensions. ting, pursuant to law, a report entitled ‘‘Re- marks the 50th anniversary of Boy EC–5342. A communication from the Assist- port on the Threat of Terrorism to U.S. Scout Troop 89 of Downers Grove, IL. ant Secretary for Administration and Man- Ports and Vessels’’; to the Committee on agement, transmitting, pursuant to law, the Teenagers move a mile a minute. Homeland Security and Governmental Af- Department’s Fiscal Year 2005 Report on fairs. Something that is ‘‘cool’’ in the morn- Competitive Sourcing; to the Committee on EC–5354. A communication from the Sec- ing may be forgotten by the afternoon. Health, Education, Labor, and Pensions. retary of Energy, transmitting, pursuant to But Scouting is one institution that EC–5343. A communication from the Assist- law, the Department of Energy’s Fiscal Year has maintained a central role in the ant Secretary for Administration and Man- 2005 Performance and Accountability Report; lives of many young people in Illinois agement, Competitive Sourcing Official, De- to the Committee on Homeland Security and and around America. partment of Labor, transmitting, pursuant Governmental Affairs. Boy Scouts learn about and enjoy the to law, the Department’s Fiscal Year 2005 EC–5355. A communication from the Gen- outdoors, build friendships for life, and Competitive Sourcing Report; to the Com- eral Counsel, Government Accountability Of- mittee on Health, Education, Labor, and fice, transmitting, pursuant to law, a report strengthen values such as teamwork, Pensions. honesty, and respect for others. Down- relative to bid protest decided in fiscal year EC–5344. A communication from the Assist- 2005; to the Committee on Homeland Secu- ers Grove is a quiet residential village ant Secretary, Employee Benefits Security rity and Governmental Affairs. west of Chicago and a good place to in- Administration, Department of Labor, trans- EC–5356. A communication from the Direc- still these lessons. Some troops last mitting, pursuant to law, the report of a rule tor, National Gallery of Art, transmitting, longer than others, but Troop 89 has entitled ‘‘Annual Funding Notice for Multi- pursuant to law, a report relative to com- served the boys of Downers Grove since employer Defined Benefit Pension Plans’’ petitive sourcing for fiscal years 2003, 2004, before I was born. That is a singular (RIN1210–AB00) received on January 16, 2006; and 2005, and planned competitions for fiscal achievement, and I am pleased to have to the Committee on Health, Education, year 2006; to the Committee on Homeland Se- Labor, and Pensions. curity and Governmental Affairs. this opportunity to recognize it. To the EC–5345. A communication from the Direc- EC–5357. A communication from the Chair- Boy Scouts, parents, and friends of tor, Regulations Policy and Management man, National Mediation Board, transmit- Troop 89, my heartiest congratulations Staff, Food and Drug Administration, De- ting, pursuant to law, a report relative to on your 50th anniversary. partment of Health and Human Services, competitive sourcing for fiscal years 2003,

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00065 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.037 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S210 CONGRESSIONAL RECORD — SENATE January 26, 2006 2004, and 2005, and planned competitions for EC–5370. A communication from the Chair- on D.C. Act 16-233, ‘‘District of Columbia fiscal year 2006; to the Committee on Home- man of the Council of the District of Colum- Health Professional Recruitment Program land Security and Governmental Affairs. bia, transmitting, pursuant to law, a report Act of 2005’’; to the Committee on Homeland EC–5358. A communication from the Presi- on D.C. Act 16-222, ‘‘National Community Re- Security and Governmental Affairs. dent and Chief Executive Officer, Inter- investment Coalition Real Property Tax Ex- EC–5382. A communication from the Chair- American Foundation, transmitting, pursu- emption Act of 2005’’; to the Committee on man of the Council of the District of Colum- ant to law, the Foundation’s Fiscal Year 2005 Homeland Security and Governmental Af- bia, transmitting, pursuant to law, a report Competitive Sourcing Report; to the Com- fairs. on D.C. Act 16-248, ‘‘Vending Licensing Mora- mittee on Homeland Security and Govern- EC–5371. A communication from the Chair- torium Amendment Act of 2005’’; to the Com- mental Affairs. man of the Council of the District of Colum- mittee on Homeland Security and Govern- EC–5359. A communication from the Ad- bia, transmitting, pursuant to law, a report mental Affairs. ministrator, Environmental Protection on D.C. Act 16-223, ‘‘Real Property Disposi- EC–5383. A communication from the Publi- Agency, transmitting, pursuant to law, the tion Economic Analysis Temporary Amend- cations Control Officer, Department of the Agency’s Office of Inspector General Semi- ment Act of 2005’’; to the Committee on Army, Department of Defense, transmitting, annual Report for the period from April 1, Homeland Security and Governmental Af- pursuant to law, the report of a rule entitled 2005 to September 30, 2005; to the Committee fairs. ‘‘Obtaining Information From Financial In- on Homeland Security and Governmental Af- EC–5372. A communication from the Chair- stitutions’’ (RIN0702-AA49) received on Janu- fairs. man of the Council of the District of Colum- ary 16, 2005; to the Committee on Armed EC–5360. A communication from the Sec- bia, transmitting, pursuant to law, a report Services. retary, Department of Housing and Urban on D.C. Act 16-224, ‘‘Estate and Inheritance EC–5384. A communication from the Acting Development, transmitting, pursuant to law, Tax Clarification Temporary Act of 2005’’; to Director, Defense Procurement and Acquisi- the Department’s Office of Inspector General the Committee on Homeland Security and tion Policy, Department of Defense, trans- Semiannual Report for the period from April Governmental Affairs. mitting, pursuant to law, the report of a rule 1, 2005 to September 30, 2005; to the Com- EC–5373. A communication from the Chair- entitled ‘‘Contract Financing’’ (DFARS Case mittee on Homeland Security and Govern- man of the Council of the District of Colum- 2003-D043) received on January 18, 2006; to the mental Affairs. bia, transmitting, pursuant to law, a report Committee on Armed Services. EC–5361. A communication from the Sec- on D.C. Act 16-225, ‘‘Public Assistance Con- EC–5385. A communication from the Under retary of Commerce, transmitting, pursuant fidentiality of Information Temporary Secretary of Defense for Personnel and Read- to law, the Department of Commerce’s Office Amendment Act of 2005’’; to the Committee iness, transmitting, a report on the approved of Inspector General Semiannual Report for on Homeland Security and Governmental Af- retirement of General Lance W. Lord, United the period from March 31, 2005 through Sep- fairs. States Air Force, and his advancement to tember 30, 2005; to the Committee on Home- EC–5374. A communication from the Chair- the grade of general on the retired list; to land Security and Governmental Affairs. man of the Council of the District of Colum- EC–5362. A communication from the Chair- the Committee on Armed Services. EC–5386. A communication from the Under man of the Council of the District of Colum- bia, transmitting, pursuant to law, a report bia, transmitting, pursuant to law, a report on D.C. Act 16-226, ‘‘Operation Enduring Secretary of Defense for Acquisition, Tech- on D.C. Act 16-214, ‘‘Old Morgan School Place Freedom and Operation Iraqi Freedom Ac- nology and Logistics, transmitting, pursuant Designation Act of 2005’’; to the Committee tive Duty Pay Differential Extension Tem- to law, a report entitled ‘‘LHA(R) Program on Homeland Security and Governmental Af- porary Amendment Act of 2005’’; to the Com- Live Fire Test and Evaluation Management fairs. mittee on Homeland Security and Govern- Plan’’; to the Committee on Armed Services. EC–5363. A communication from the Chair- mental Affairs. EC–5387. A communication from the Assist- man of the Council of the District of Colum- EC–5375. A communication from the Chair- ant Secretary of the Navy (Installations and bia, transmitting, pursuant to law, a report man of the Council of the District of Colum- Environment), Department of Defense, trans- on D.C. Act 16-215, ‘‘Full Service Grocery bia, transmitting, pursuant to law, a report mitting, pursuant to law, a report relative to Store Alcohol License Exception Act of on D.C. Act 16-227, ‘‘Criminal Background the intent to conduct an analysis of ‘‘Bulk 2005’’; to the Committee on Homeland Secu- Checks for the Protection of Children Clari- Fuel Storage and Distribution’’ at Marine rity and Governmental Affairs. fication Temporary Amendment Act of 2005’’; Corps Air Station Miramar, CA; to the Com- EC–5364. A communication from the Chair- to the Committee on Homeland Security and mittee on Armed Services. man of the Council of the District of Colum- Governmental Affairs. EC–5388. A communication from the Assist- bia, transmitting, pursuant to law, a report EC–5376. A communication from the Chair- ant Secretary, Legislative Affairs, Depart- on D.C. Act 16-216, ‘‘Walt Whitman Way Des- man of the Council of the District of Colum- ment of State, transmitting, pursuant to ignation Act of 2005’’; to the Committee on bia, transmitting, pursuant to law, a report law, a report entitled ‘‘Statement, Justifica- Homeland Security and Governmental Af- on D.C. Act 16-228, ‘‘Highway Trust Fund and tion and Plan Included in Presidential Waiv- fairs. District Department of Transportation Tem- er for Calendar Year 2006 Under Section 1303 EC–5365. A communication from the Chair- porary Amendment Act of 2005’’; to the Com- of the National Defense Authorization Act man of the Council of the District of Colum- mittee on Homeland Security and Govern- for Fiscal Year 2005’’; to the Committee on bia, transmitting, pursuant to law, a report mental Affairs. Armed Services. on D.C. Act 16-217, ‘‘Producer Summary Sus- EC–5377. A communication from the Chair- EC–5389. A communication from the Under pension Amendment Act of 2005’’; to the man of the Council of the District of Colum- Secretary of Defense for Acquisition, Tech- Committee on Homeland Security and Gov- bia, transmitting, pursuant to law, a report nology and Logistics, transmitting, pursuant ernmental Affairs. on D.C. Act 16-229, ‘‘Karyn Barquin Adult to law, a report entitled ‘‘Alternative Live EC–5366. A communication from the Chair- Protective Services Self-Neglect Expansion Fire Test and Evaluation Strategy for USMC man of the Council of the District of Colum- Act of 2005’’; to the Committee on Homeland Heavy Lift Replacement Helicopter’’; to the bia, transmitting, pursuant to law, a report Security and Governmental Affairs. Committee on Armed Services. on D.C. Act 16-218, ‘‘Adams Morgan Business EC–5378. A communication from the Chair- EC–5390. A communication from the Under Improvement District Amendment Act of man of the Council of the District of Colum- Secretary of Defense for Acquisition, Tech- 2005’’; to the Committee on Homeland Secu- bia, transmitting, pursuant to law, a report nology and Logistics, transmitting, pursuant rity and Governmental Affairs. on D.C. Act 16-230, ‘‘Stevie Sellows Inter- to law, a report entitled ‘‘DD(X) Program EC–5367. A communication from the Chair- mediate Care Facility for the Mentally Re- Live Fire Test and Evaluation Management man of the Council of the District of Colum- tarded Quality Improvement Act of 2005’’; to Plan’’; to the Committee on Armed Services. bia, transmitting, pursuant to law, a report the Committee on Homeland Security and f on D.C. Act 16-219, ‘‘Water Pollution Control Governmental Affairs. Amendment Act of 2005’’; to the Committee EC–5379. A communication from the Chair- REPORTS OF COMMITTEES on Homeland Security and Governmental Af- man of the Council of the District of Colum- The following reports of committees fairs. bia, transmitting, pursuant to law, a report were submitted: EC–5368. A communication from the Chair- on D.C. Act 16-231, ‘‘Grandparent Caregivers man of the Council of the District of Colum- Pilot Program Establishment Act of 2005’’; By Mr. INHOFE, from the Committee on bia, transmitting, pursuant to law, a report to the Committee on Homeland Security and Environment and Public Works, without on D.C. Act 16-220, ‘‘Human Rights Clarifica- Governmental Affairs. amendment: tion Amendment Act of 2005’’; to the Com- EC–5380. A communication from the Chair- S. 1708. A bill to modify requirements re- mittee on Homeland Security and Govern- man of the Council of the District of Colum- lating to the authority of the Administrator mental Affairs. bia, transmitting, pursuant to law, a report of General Services to enter into emergency EC–5369. A communication from the Chair- on D.C. Act 16-232, ‘‘Dedication of Portions of leases during major disasters and other man of the Council of the District of Colum- the Alley System in Square 5252, S.O. 03-1707, emergencies (Rept. No. 109–214). bia, transmitting, pursuant to law, a report Act of 2005’’; to the Committee on Homeland INTRODUCTION OF BILLS AND on D.C. Act 16-221, ‘‘Domestic Partner Health Security and Governmental Affairs. JOINT RESOLUTIONS Care Benefits Tax Exemption Act of 2005’’; to EC–5381. A communication from the Chair- the Committee on Homeland Security and man of the Council of the District of Colum- The following bills and joint resolu- Governmental Affairs. bia, transmitting, pursuant to law, a report tions were introduced, read the first

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00066 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.039 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S211 and second times by unanimous con- implementation requirements of section Federal Youth Development Council to sent, and referred as indicated: 40122 regarding changes in the Federal Avia- improve the administration and coordi- tion Administration personnel management By Mr. DOMENICI (for himself, Mr. nation of Federal programs serving system, and for other purposes; to the Com- BINGAMAN, Mr. ALEXANDER, Ms. MI- youth, and for other purposes. mittee on Commerce, Science, and Transpor- KULSKI, Mr. LUGAR, Mr. DODD, Mr. tation. S. 787 HATCH, Mr. OBAMA, Mr. WARNER, Mr. By Mr. LEAHY (for himself, Mr. At the request of Mr. SCHUMER, the LIEBERMAN, Mr. BOND, Mrs. MURRAY, KERRY, and Mr. FEINGOLD): name of the Senator from New Jersey Mr. BURNS, Mr. BAYH, Mr. CRAIG, Ms. S. 2202. A bill to provide for ethics reform (Mr. MENENDEZ) was added as a cospon- CANTWELL, Mrs. HUTCHISON, Mr. of the Federal judiciary and to instill greater MENENDEZ, Mr. DEWINE, Mr. KOHL, sor of S. 787, a bill to amend the Inter- public confidence in the Federal courts; to Mr. THOMAS, Mr. KERRY, Mr. SMITH, nal Revenue Code of 1986 to equalize the Committee on the Judiciary. Mr. NELSON of Florida, Mr. the exclusion from gross income of By Mrs. CLINTON (for herself and Mr. VOINOVICH, Mr. LEAHY, Mr. ALLEN, parking and transportation fringe ben- NELSON of Florida): Mr. AKAKA, Mr. TALENT, Mrs. CLIN- S. 2203. A bill to amend title XVIII of the efits and to provide for a common cost- TON, Mr. CHAMBLISS, Ms. STABENOW, Social Security Act to eliminate cost-shar- of-living adjustment, and for other pur- Mr. CORNYN, Mr. DAYTON, Mr. COLE- ing under part D of such title for certain poses. MAN, Mr. SALAZAR, Mr. MARTINEZ, full-benefit dual eligible individuals; to the S. 843 Mr. INOUYE, Mr. STEVENS, Mr. BIDEN, Committee on Finance. Mr. COCHRAN, Mr. HAGEL, Ms. MUR- At the request of Mr. SANTORUM, the By Mr. ENSIGN (for himself and Mr. KOWSKI, Mr. PRYOR, Ms. COLLINS, Mr. name of the Senator from Hawaii (Mr. REID): VITTER, and Ms. LANDRIEU): INOUYE) was added as a cosponsor of S. S. 2204. A bill to validate certain convey- S. 2197. A bill to improve the global com- ances made by the Union Pacific Railroad 843, a bill to amend the Public Health petitiveness of the United States in science Company of lands located in Reno, Nevada, Service Act to combat autism through and energy technology, to strengthen basic that were originally conveyed by the United research, screening, intervention and research programs at the Department of En- States to facilitate construction of trans- ergy, and to provide support for mathe- education. continental railroads, and for other pur- matics and science education at all levels S. 1035 poses; to the Committee on Energy and Nat- through the resources available through the At the request of Mr. INHOFE, the ural Resources. Department of Energy, including at the Na- names of the Senator from Oregon (Mr. By Mr. THUNE: tional Laboratories; to the Committee on S. 2205. A bill to direct the Secretary of the WYDEN) and the Senator from Utah Energy and Natural Resources. Interior to convey certain parcels of land ac- (Mr. BENNETT) were added as cospon- By Mr. DOMENICI (for himself, Mr. quired for the Blunt Reservoir and Pierre sors of S. 1035, a bill to authorize the BINGAMAN, Mr. ALEXANDER, Ms. MI- Canal features of the initial stage of the presentation of commemorative medals KULSKI, Mr. LUGAR, Mr. DODD, Mr. Oahe Unit, James Division, South Dakota, to OBAMA, Mr. WARNER, Mr. LIEBERMAN, on behalf of Congress to Native Ameri- the Commission of Schools and Public Lands Mr. BOND, Mrs. MURRAY, Mr. BURNS, cans who served as Code Talkers during and the Department of Game, Fish, and Mr. BAYH, Mr. CRAIG, Ms. CANTWELL, foreign conflicts in which the United Parks of the State of South Dakota for the Mrs. HUTCHISON, Mr. MENENDEZ, Mr. States was involved during the 20th purpose of mitigating lost wildlife habitat, DEWINE, Mr. KOHL, Mr. THOMAS, Mr. on the condition that the current pref- century in recognition of the service of KERRY, Mr. SMITH, Mr. NELSON of erential leaseholders shall have an option to those Native Americans to the United Florida, Mr. VOINOVICH, Mr. LEAHY, purchase the parcels from the Commission, States. Mr. ALLEN, Mr. AKAKA, Mr. TALENT, and for other purposes; to the Committee on S. 1604 Mr. CHAMBLISS, Mr. CORNYN, Mr. Energy and Natural Resources. DAYTON, Mr. COLEMAN, Mr. SALAZAR, At the request of Mr. CRAIG, the Mr. MARTINEZ, Mr. INOUYE, Mr. STE- f name of the Senator from New Mexico VENS, Mr. BIDEN, Mr. COCHRAN, Mr. SUBMISSION OF CONCURRENT AND (Mr. BINGAMAN) was added as a cospon- HAGEL, Ms. MURKOWSKI, Mr. PRYOR, SENATE RESOLUTIONS sor of S. 1604, a bill to restore to the ju- Mr. ENZI, Ms. COLLINS, Mr. VITTER, diciary the power to decide all trade- and Ms. LANDRIEU): The following concurrent resolutions mark and trade name cases arising S. 2198. A bill to ensure the United States and Senate resolutions were read, and successfully competes in the 21st century under the laws and treaties of the global economy; to the Committee on referred (or acted upon), as indicated: United States, and for other purposes. Health, Education, Labor, and Pensions. By Mr. VITTER: S. 1774 By Mr. DOMENICI (for himself, Mr. S. Res. 354. A resolution honoring the valu- At the request of Mr. CORNYN, the BINGAMAN, Mr. ALEXANDER, Ms. MI- able contributions of Catholic schools in the name of the Senator from Maine (Ms. United States; to the Committee on Health, KULSKI, Mr. LUGAR, Mr. DODD, Mr. SNOWE) was added as a cosponsor of S. WARNER, Mr. OBAMA, Mr. BOND, Mr. Education, Labor, and Pensions. By Mr. NELSON of Nebraska (for him- 1774, a bill to amend the Public Health LIEBERMAN, Mr. BURNS, Mrs. MUR- Service Act to provide for the expan- RAY, Mr. CRAIG, Mr. BAYH, Mrs. self, Mr. GRAHAM, Mr. ALLEN, Mr. HUTCHISON, Ms. CANTWELL, Mr. TALENT, Mrs. DOLE, Mr. DEWINE, Ms. sion, intensification, and coordination DEWINE, Mr. MENENDEZ, Mr. THOMAS, MURKOWSKI, Ms. SNOWE, Mr. THUNE, of the activities of the National Heart, Mr. KOHL, Mr. SMITH, Mr. KERRY, Mr. Mr. ISAKSON, Ms. LANDRIEU, Mr. NEL- Lung, and Blood Institute with respect VOINOVICH, Mr. NELSON of Florida, SON of Florida, Mr. HARKIN, Mr. DOR- to research on pulmonary hyper- Mr. ALLEN, Mr. LEAHY, Mr. TALENT, GAN, Mr. LAUTENBERG, Mr. BINGAMAN, tension. Mr. AKAKA, Mr. BAUCUS, Mrs. CLIN- Mr. AKAKA, Mr. CHAMBLISS, Mrs. S. 1841 CLINTON, Mr. CORNYN, Ms. STABENOW, TON, Mr. KOHL, Ms. MIKULSKI, Mr. At the request of Mr. NELSON of Flor- Mr. COLEMAN, Mr. DAYTON, Mr. MAR- BAYH, Ms. CANTWELL, Mr. PRYOR, Mr. TINEZ, Mr. SALAZAR, Mr. INOUYE, Mr. SALAZAR, Mr. LIEBERMAN, Mr. BIDEN, ida, the names of the Senator from STEVENS, Mr. BIDEN, Mr. COCHRAN, Mr. CONRAD, Mr. KENNEDY, Mr. FEIN- Massachusetts (Mr. KENNEDY) and the Mr. HAGEL, Ms. MURKOWSKI, Mr. GOLD, Mr. MENENDEZ, Mr. JOHNSON, Senator from Arkansas (Mrs. LINCOLN) PRYOR, Ms. COLLINS, Mr. VITTER, and and Mr. DURBIN): were added as cosponsors of S. 1841, a Ms. LANDRIEU): S. Res. 355. A resolution honoring the serv- bill to amend title XVIII of the Social S. 2199. A bill to amend the Internal Rev- ice of the National Guard and requesting Security Act to provide extended and enue Code of 1986 to provide tax incentives to consultation by the Department of Defense additional protection to Medicare promote research and development, innova- with Congress and the chief executive offi- tion, and continuing education; to the Com- cers of the States prior to offering proposals beneficiaries who enroll for the Medi- mittee on Finance. to change the National Guard force struc- care prescription drug benefit during By Mr. LUGAR: ture; to the Committee on Armed Services. 2006. S. 2200. A bill to establish a United States- f S. 1923 Poland parliamentary youth exchange pro- At the request of Ms. SNOWE, the ADDITIONAL COSPONSORS gram, and for other purposes; to the Com- name of the Senator from Georgia (Mr. mittee on Foreign Relations. S. 409 ISAKSON) was added as a cosponsor of S. By Mr. OBAMA (for himself, Mr. At the request of Mr. COLEMAN, the 1923, a bill to address small business in- INOUYE, Mrs. MURRAY, and Mr. LAU- TENBERG): name of the Senator from South Da- vestment companies licensed to issue S. 2201. A bill to amend title 49, United kota (Mr. JOHNSON) was added as a co- participating debentures, and for other States Code, to modify the mediation and sponsor of S. 409, a bill to establish a purposes.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00067 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.045 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S212 CONGRESSIONAL RECORD — SENATE January 26, 2006 S. 1963 Ms. MIKULSKI, Mr. LUGAR, Mr. VENS, Mr. BIDEN, Mr. COCHRAN, At the request of Mr. BAUCUS, the DODD, Mr. HATCH, Mr. OBAMA, Mr. HAGEL, Ms. MURKOWSKI, Mr. name of the Senator from Minnesota Mr. WARNER, Mr. LIEBERMAN, PRYOR, Ms. COLLINS, Mr. (Mr. COLEMAN) was added as a cospon- Mr. BOND, Mrs. MURRAY, Mr. VITTER, and Ms. LANDRIEU): sor of S. 1963, a bill to make miscella- BURNS, Mr. BAYH, Mr. CRAIG, S. 2199. A bill to amend the Internal neous improvements to trade adjust- Ms. CANTWELL, Mrs. HUTCHISON, Revenue Code of 1986 to provide tax in- ment assistance. Mr. MENENDEZ, Mr. DEWINE, centives to promote research and de- S. 2081 Mr. KOHL, Mr. THOMAS, Mr. velopment, innovation, and continuing At the request of Mr. COLEMAN, the KERRY, Mr. SMITH, Mr. NELSON education; to the Committee on Fi- name of the Senator from Georgia (Mr. of Florida, Mr. VOINOVICH, Mr. nance. ISAKSON) was added as a cosponsor of S. LEAHY, Mr. ALLEN, Mr. AKAKA, Mr. DOMENICI. Mr. President, I rise 2081, a bill to improve the safety of all- Mr. TALENT, Mrs. CLINTON, Mr. today to introduce a legislative pack- terrain vehicles in the United States, CHAMBLISS, Ms. STABENOW, Mr. age which we refer to as the ‘‘Pro- and for other purposes. CORNYN, Mr. DAYTON, Mr. COLE- tecting America’s Competitive Edge S. 2131 MAN, Mr. SALAZAR, Mr. MAR- Act of 2006’’ or the ‘‘PACE’’ Act. This At the request of Mr. GRASSLEY, the TINEZ, Mr. INOUYE, Mr. STE- legislation ensures that the United names of the Senator from Wisconsin VENS, Mr. BIDEN, Mr. COCHRAN, States continues to set the pace in (Mr. KOHL) and the Senator from South Mr. HAGEL, Ms. MURKOWSKI, Mr. science, and in the development of new Dakota (Mr. JOHNSON) were added as PRYOR, Ms. COLLINS, Mr. technologies. cosponsors of S. 2131, a bill to amend VITTER, and Ms. LANDRIEU): I know my colleagues Senator BINGA- title 9, United States Code, to provide S. 2197. A bill to improve the global MAN, Senator ALEXANDER, and Senator for greater fairness in the arbitration competitiveness of the United States in MIKULSKI share my conviction that process relating to livestock and poul- science and energy technology, to this legislation addresses one of the try contracts. strengthen basic research programs at most pressing challenges before us today. There are troubling signs that S. 2154 the Department of Energy, and to pro- the United States is becoming less At the request of Mr. OBAMA, the vide support for mathematics and name of the Senator from Georgia (Mr. science education at all levels through competitive in scientific and high-tech- nology fields. Today, the United States ISAKSON) was added as a cosponsor of S. the resources available through the De- 2154, a bill to provide for the issuance partment of Energy, including at the is a net importer of high technology of a commemorative postage stamp in National Laboratories; to the Com- products. The U.S. share of global high- honor of Rosa Parks. mittee on Energy and Natural Re- technology exports has fallen over the last two decades from 30 percent to S. 2172 sources. only 17 percent. At the request of Ms. LANDRIEU, the By Mr. DOMENICI (for himself, The PACE legislation closely follows name of the Senator from Louisiana Mr. BINGAMAN, Mr. ALEXANDER, the recommendations made in a recent (Mr. VITTER) was added as a cosponsor Ms. MIKULSKI, Mr. LUGAR, Mr. National Academy of Sciences report of S. 2172, a bill to provide for response DODD, Mr. OBAMA, Mr. WARNER, entitled ‘‘Rising Above the Gathering to Hurricane Katrina by establishing a Mr. LIEBERMAN, Mr. BOND, Mrs. Storm.’’ The metaphorical storm is the Louisiana Recovery Corporation, pro- MURRAY, Mr. BURNS, Mr. BAYH, challenge to our global competitive- viding for housing and community re- Mr. CRAIG, Ms. CANTWELL, Mrs. ness in science and technology. I want building, and for other purposes. HUTCHISON, Mr. MENENDEZ, Mr. to congratulate Norm Augustine, who S. 2179 DEWINE, Mr. KOHL, Mr. THOMAS, chaired the National Academy com- At the request of Mr. OBAMA, the Mr. KERRY, Mr. SMITH, Mr. NEL- mittee, and the members of his com- name of the Senator from Indiana (Mr. SON of Florida, Mr. VOINOVICH, mittee for producing such a com- BAYH) was added as a cosponsor of S. Mr. LEAHY, Mr. ALLEN, Mr. prehensive, ground-breaking report on 2179, a bill to require openness in con- AKAKA, Mr. TALENT, Mr. this important issue. ference committee deliberations and CHAMBLISS, Mr. CORNYN, Mr. The Augustine report makes 20 rec- full disclosure of the contents of con- DAYTON, Mr. COLEMAN, Mr. ommendations for U.S. schools, univer- ference reports and all other legisla- SALAZAR, Mr. MARTINEZ, Mr. sities, research and economic policy. tion. INOUYE, Mr. STEVENS, Mr. Our legislation will enact each of the S. 2185 BIDEN, Mr. COCHRAN, Mr. recommendations. For example, our At the request of Mr. HAGEL, the HAGEL, Ms. MURKOWSKI, Mr. legislation doubles authorizations for names of the Senator from Nevada (Mr. PRYOR, Mr. ENZI, Ms. COLLINS, basic research in the physical sciences REID), the Senator from Michigan (Ms. Mr. VITTER, and Ms. LANDRIEU): by over the next 7 years. It also re- STABENOW) and the Senator from New S. 2198. A bill to ensure the United quires that at least 8 percent of Fed- Jersey (Mr. MENENDEZ) were added as States successfully competes in the eral research budgets are allocated to cosponsors of S. 2185, a bill to amend 21st century global economy; to the high-risk, potentially high pay-off re- part B of the Individuals with Disabil- Committee on Health, Education, search. It will strengthen the skills of ities Education Act to provide full Fed- Labor, and Pensions. thousands of math and science teachers eral funding of such part. by establishing training and education S. 2196 By Mr. DOMENICI (for himself, programs at summer institutes hosted At the request of Mrs. CLINTON, the Mr. BINGAMAN, Mr. ALEXANDER, at the National Laboratories. name of the Senator from Washington Ms. MIKULSKI, Mr. LUGAR, Mr. We need to take U.S. competitiveness (Ms. CANTWELL) was added as a cospon- DODD, Mr. WARNER, Mr. OBAMA, seriously. We need to take action to sor of S. 2196, a bill to authorize the Mr. BOND, Mr. LIEBERMAN, Mr. support our standard of living, and en- Secretary of Energy to establish the BURNS, Mrs. MURRAY, Mr. sure we continue to grow and prosper. position of Assistant Secretary for Ad- CRAIG, Mr. BAYH, Mrs. If we do not, we can expect other na- vanced Energy Research, Technology HUTCHISON, Ms. CANTWELL, Mr. tions to rival our global competitive- Development, and Deployment to im- DEWINE, Mr. MENENDEZ, Mr. ness—and one day to surpass us. plement an innovative energy research, THOMAS, Mr. KOHL, Mr. SMITH, I ask unanimous consent that the technology development, and deploy- Mr. KERRY, Mr. VOINOVICH, Mr. text of all three bills in the following ment program. NELSON of Florida, Mr. ALLEN, order, the PACE-Energy Act, the f Mr. LEAHY, Mr. TALENT, Mr. PACE-Education Act, and the PACE- AKAKA, Mr. CHAMBLISS, Mrs. Finance Act, be printed in the RECORD. STATEMENTS ON INTRODUCED CLINTON, Mr. CORNYN, Ms. S. 2197 BILLS AND JOINT RESOLUTIONS STABENOW, Mr. COLEMAN, Mr. Be it enacted by the Senate and House of Rep- By Mr. DOMENICI (for himself, DAYTON, Mr. MARTINEZ, Mr. resentatives of the United States of America in Mr. BINGAMAN, Mr. ALEXANDER, SALAZAR, Mr. INOUYE, Mr. STE- Congress assembled,

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SECTION 1. SHORT TITLE. ‘‘(5) NATIONAL LABORATORY.—The term ‘Na- ‘‘(ii) a high teacher turnover rate; or This Act may be cited as the ‘‘Protecting tional Laboratory’ has the meaning given ‘‘(iii) a high percentage of teachers with America’s Competitive Edge Through Energy the term in section 2 of the Energy Policy emergency, provisional, or temporary cer- Act of 2006’’ or the ‘‘PACE-Energy Act’’. Act of 2005 (42 U.S.C. 15801).’’. tification or licenses. SEC. 2. MATHEMATICS, SCIENCE, AND ENGINEER- (c) MATHEMATICS, SCIENCE, AND ENGINEER- ‘‘(2) COORDINATION.—The Director shall ING EDUCATION AT THE DEPART- ING EDUCATION PROGRAMS.—The Department consult with the Secretary of Education in MENT OF ENERGY. of Energy Science Education Enhancement order to determine whether a student meets (a) SCIENCE EDUCATION PROGRAMS.—Sec- Act (42 U.S.C. 7381 et seq.) is amended— the priority requirements of this subsection. tion 3164 of the Department of Energy (1) by inserting after section 3162 the fol- ‘‘(d) AUTHORIZATION OF APPROPRIATIONS.— Science Education Enhancement Act (42 lowing: There is authorized to be appropriated to U.S.C. 7381a) is amended— ‘‘Subpart A—Science Education carry out this section $50,000,000 for each of (1) by redesignating subsections (b) Enhancement’’; the fiscal years 2007 through 2013. through (d) as subsections (c) through (e), re- ‘‘CHAPTER 3—NATIONAL LABORATORIES spectively; (2) in section 3169, by striking ‘‘part’’ and CENTERS OF EXCELLENCE IN MATHE- (2) by inserting after subsection (a) the fol- inserting ‘‘subpart’’; and MATICS AND SCIENCE EDUCATION lowing: (3) by adding at the end the following: ‘‘(b) ORGANIZATION OF MATHEMATICS, ‘‘Subpart B—Mathematics, Science, and ‘‘SEC. 3181. NATIONAL LABORATORIES CENTERS SCIENCE, AND ENGINEERING EDUCATION PRO- Engineering Education Programs OF EXCELLENCE IN MATHEMATICS AND SCIENCE EDUCATION. GRAMS.— ‘‘SEC. 3170. DEFINITIONS. ‘‘(a) IN GENERAL.—The Secretary shall es- ‘‘(1) DIRECTOR OF MATHEMATICS, SCIENCE ‘‘In this subpart: tablish at each of the National Laboratories AND ENGINEERING EDUCATION.—The Secretary, ‘‘(1) DIRECTOR.—The term ‘Director’ means a program to support a Center of Excellence acting through the Under Secretary for the Director of Mathematics, Science, and in Mathematics and Science at 1 public sec- Science (referred to in this subsection as the Engineering Education. ondary school located in the region of the ‘Under Secretary’), shall appoint a Director ‘‘(2) NATIONAL LABORATORY.—The term ‘Na- National Laboratory to provide assistance in of Mathematics, Science, and Engineering tional Laboratory’ has the meaning given accordance with subsection (c). Education (referred to in this subsection as the term in section 2 of the Energy Policy ‘‘(b) GOALS.—The Secretary shall establish the ‘Director’) with the principal responsi- Act of 2005 (42 U.S.C. 15801). goals and performance assessments for each bility for administering mathematics, ‘‘CHAPTER 1—ASSISTANCE FOR SPE- Center of Excellence authorized under sub- science, and engineering education programs CIALTY SCHOOLS FOR MATHEMATICS section (a). of the Department. AND SCIENCE ‘‘(c) ASSISTANCE.—Consistent with sections ‘‘(2) QUALIFICATIONS.—The Director shall ‘‘SEC. 3171. ASSISTANCE FOR SPECIALTY 3165 and 3166, the Director shall make avail- be an individual, who by reason of profes- able necessary funds for a program using sci- sional background and experience, is spe- SCHOOLS FOR MATHEMATICS AND SCIENCE. entific and engineering staff of the National cially qualified to advise the Under Sec- ‘‘(a) IN GENERAL.—Consistent with sections Laboratories, during which the staff— retary on all matters pertaining to mathe- 3165 and 3166, the Director shall make avail- ‘‘(1) assists teaching courses at the Centers matics, science, and engineering education able necessary funds for a program using sci- of Excellence in Mathematics and Science; at the Department. entific and engineering staff of the National and ‘‘(3) DUTIES.—The Director shall— Laboratories, in which the staff— ‘‘(2) uses National Laboratory scientific ‘‘(A) oversee all mathematics, science, and ‘‘(1) assists teaching courses at statewide equipment in the teaching of the courses. engineering education programs of the De- specialty secondary schools that provide ‘‘(d) EVALUATION.—The Secretary shall partment; comprehensive mathematics and science (in- consider the results of the performance as- ‘‘(B) represent the Department as the prin- cluding engineering) education; and sessments required under subsection (b) in cipal interagency liaison for all mathe- ‘‘(2) uses National Laboratory scientific any performance review of a National Lab- matics, science, and engineering education equipment in the teaching of the courses. oratories management and operations con- programs, unless otherwise represented by ‘‘(b) REPORT TO CONGRESS.—Not later than tractor. the Secretary or the Under Secretary; 2 years after the date of enactment of the ‘‘CHAPTER 4—SUMMER INSTITUTES ‘‘(C) prepare the annual budget and advise Protecting America’s Competitive Edge ‘‘SEC. 3185. SUMMER INSTITUTES. the Under Secretary on all budgetary issues Through Energy Act of 2006, the Director for mathematics, science, and engineering ‘‘(a) DEFINITION OF SUMMER INSTITUTE.—In shall submit a report to the appropriate this section, the term ‘summer institute’ education programs of the Department; and committees of Congress detailing the impact ‘‘(D) perform other such matters related to means an institute at a National Labora- of the activities assisted with funds made tory, conducted during the summer, that— mathematics, science, and engineering edu- available under this section. cation as are required by the Secretary or ‘‘(1) is conducted for a period of not less the Under Secretary. ‘‘CHAPTER 2—EXPERIENTIAL-BASED than 2 weeks; ‘‘(4) STAFF AND OTHER RESOURCES.—The LEARNING OPPORTUNITIES ‘‘(2) includes, as a component, a program Secretary shall assign to the Director such ‘‘SEC. 3175. EXPERIENTIAL-BASED LEARNING OP- that provides direct interaction between stu- personnel and other resources as the Sec- PORTUNITIES. dents and faculty; and retary considers necessary to permit the Di- ‘‘(a) INTERNSHIPS AUTHORIZED.—From the ‘‘(3) provides for follow-up training during rector to carry out the duties of the Direc- amounts authorized under subsection (d), the the academic year. tor. Secretary, acting through the Director, shall ‘‘(b) SUMMER INSTITUTE PROGRAMS AUTHOR- ‘‘(5) ASSESSMENT.—The Secretary shall establish a summer internship program for IZED.—The Secretary, acting through the Di- offer to enter into a contract with the Na- middle school and secondary school students rector, shall establish or expand program of tional Academy of Sciences under which the that shall— summer institutes at each of the National National Academy, not later than 5 years ‘‘(1) provide the students with internships Laboratories to provide additional training after, and not later than 10 years after, the at the National Laboratories; and to strengthen the mathematics and science date of enactment of this paragraph, shall ‘‘(2) promote experiential, hands-on learn- teaching skills of teachers employed at pub- assess the performance of the mathematics, ing in mathematics or science. lic schools in kindergarten through grade 12 science, and engineering education programs ‘‘(b) ELIGIBILITY CRITERIA.—The Director education, with a particular focus on teach- of the Department. shall establish criteria to determine the suf- ers of kindergarten through grade 8. ‘‘(6) AUTHORIZATION OF APPROPRIATIONS.— ficient level of academic preparedness nec- ‘‘CHAPTER 5—DISTINGUISHED SCIENTIST There are authorized to be appropriated such essary for a student to be eligible for an in- PROGRAM ternship under this section. sums as are necessary to carry out this sub- ‘‘SEC. 3191. DISTINGUISHED SCIENTIST PRO- ‘‘(c) PRIORITY.— section.’’; and GRAM. ‘‘(1) IN GENERAL.—The Director shall give (3) by striking subsection (d) (as redesig- ‘‘(a) PURPOSE.—The purpose of this section priority for an internship under this section nated by paragraph (1)) and inserting the fol- is to promote scientific and academic excel- to a student who meets the eligibility cri- lowing: lence at National Laboratories. teria described in subsection (b) and who at- ‘‘(d) MATHEMATICS, SCIENCE, AND ENGINEER- ‘‘(b) ESTABLISHMENT.—The Secretary, act- ING EDUCATION FUND.—The Secretary shall tends a school— ing through the Director and in consultation establish a Mathematics, Science, and Engi- ‘‘(A)(i) in which not less than 40 percent of with the Director of the Office of Science, neering Education Fund, using not less than the children enrolled in the school are from shall establish a program to support the ap- 0.3 percent of the amount made available to low-income families; or pointment of distinguished scientists by Na- the Department for research, development, ‘‘(ii) that is designated with a school locale tional Laboratories. demonstration, and commercial application code of 7 or 8, as determined by the Sec- ‘‘(c) QUALIFICATIONS.—Successful can- for each fiscal year, to carry out sections retary of Education; and didates under this section shall be persons 3165, 3166, and 3167.’’. ‘‘(B) for which there is— who, by reason of professional background (b) DEFINITION.—Section 3168 of the Depart- ‘‘(i) a high percentage of teachers who are and experience, are able to bring inter- ment of Energy Science Education Enhance- not teaching in the academic subject areas national recognition to the appointing Na- ment Act (42 U.S.C. 7381d) is amended by or grade levels in which the teachers were tional Laboratory in their field of scientific adding at the end the following: trained to teach; endeavor.

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‘‘(d) SELECTION.—A distinguished scientist search in natural sciences, engineering, (A) such amounts as are appropriated to appointed under this section shall be se- mathematics, or computer sciences at the the Fund under paragraph (5); and lected through an open peer review process. Department of Energy, particularly the Na- (B) any interest earned on investment of ‘‘(e) APPOINTMENT.—An appointment by a tional Laboratories, or other federally-fund- amounts in the Fund under paragraph (3). National Laboratory under this section shall ed research and development center. (2) EXPENDITURES FROM FUND.— be at the rank of the highest grade of distin- (6) AUTHORIZATION OF APPROPRIATIONS.— (A) IN GENERAL.—Subject to subparagraph guished scientist or technical staff of the Na- There are authorized to be appropriated to (B), on request by the Director, the Sec- tional Laboratory. carry out this section— retary of the Treasury shall transfer from ‘‘(f) DURATION.—An appointment under this (A) $6,500,000 for fiscal year 2007; the Fund to the Director such amounts as section shall be for 6 years, consisting of 2 3- (B) $13,000,000 for fiscal year 2008; the Director determines are necessary to year funding allotments. (C) $19,500,000 for fiscal year 2009; carry out this section. ‘‘(g) USE OF FUNDS.—Funds made available (D) $26,000,000 for fiscal year 2010; and (B) ADMINISTRATIVE EXPENSES.—An amount under this section may be used for— (E) $32,500,000 for fiscal year 2011. not exceeding 5 percent of the amounts in ‘‘(1) the salary of the distinguished sci- SEC. 4. ADVANCED RESEARCH PROJECTS AU- the Fund shall be available for each fiscal entist and support staff; THORITY-ENERGY. year to pay the administrative expenses nec- ‘‘(2) undergraduate, graduate, and post- (a) DEFINITIONS.—In this section: essary to carry out this section. doctoral appointments; (1) ARPA-E.—The term ‘‘ARPA-E’’ means (3) INVESTMENT OF AMOUNTS.— ‘‘(3) research-related equipment; the Advanced Research Projects Authority- (A) IN GENERAL.—The Secretary of the ‘‘(4) professional travel; and Energy established under subsection (b). Treasury shall invest such portion of the ‘‘(5) such other requirements as the Direc- (2) FUND.—The term ‘‘Fund’’ means the Ac- Fund as is not, in the judgment of the Sec- tor determines are necessary to carry out celeration Fund for Research and Develop- retary of the Treasury, required to meet cur- the purpose of the program. ment of Energy Technologies established rent withdrawals. ‘‘(h) REVIEW.— under subsection (c). (B) INTEREST-BEARING OBLIGATIONS.—In- ‘‘(1) IN GENERAL.—The appointment of a (3) SECRETARY.—The term ‘‘Secretary’’ vestments may be made only in interest- distinguished scientist under this section means the Secretary of Energy. bearing obligations of the United States. shall be reviewed at the end of the first 3- NDER SECRETARY (4) U .—The term ‘‘Under (C) ACQUISITION OF OBLIGATIONS.—For the year allotment for the distinguished sci- Secretary’’ means the position of Under Sec- purpose of investments under subparagraph entist through an open peer review process retary for Science established under section (A), obligations may be acquired— to determine if the appointment is meeting 202(b) of the Department of Energy Organiza- (i) on original issue at the issue price; or the purpose of this section under subsection tion Act (42 U.S.C. 7132(b)). (ii) by purchase of outstanding obligations (a). (b) ARPA-E.— at the market price. ‘‘(2) FUNDING.—Funding of the appointment (1) ESTABLISHMENT.—There is established (D) SALE OF OBLIGATIONS.—Any obligation of the distinguished scientist for the second the Advanced Research Projects Authority– acquired by the Fund may be sold by the 3-year allotment shall be determined based Energy. Secretary of the Treasury at the market on the review conducted under paragraph (2) DIRECTOR.—ARPA-E shall be headed by price. (1).’’. a Director, who shall be appointed by the Secretary and report to the Under Secretary. (E) CREDITS TO FUND.—The interest on, and SEC. 3. DEPARTMENT OF ENERGY EARLY-CAREER the proceeds from the sale or redemption of, RESEARCH GRANTS. (3) RESPONSIBILITIES.—The Director shall any obligations held in the Fund shall be (a) PURPOSE.—It is the purpose of this sec- use the Fund to award competitive, merit- credited to, and form a part of, the Fund. tion to authorize research grants in the De- based grants, cooperative agreements, and (4) TRANSFERS OF AMOUNTS.— partment of Energy for early-career sci- contracts to public or private entities (in- (A) IN GENERAL.—The amounts required to entists and engineers for purposes of pur- cluding businesses, federally funded research be transferred to the Fund under this sub- suing independent research. and development centers, and institutions of (b) DEFINITION OF ELIGIBLE EARLY-CAREER higher education) to— section shall be transferred at least monthly RESEARCHER.—In this section, the term ‘‘eli- (A) support basic and applied energy re- from the general fund of the Treasury to the gible early-career researcher’’ means an indi- search to promote revolutionary changes in Fund on the basis of estimates made by the vidual who— technologies that would promote the mis- Secretary of the Treasury. (1) completed a doctorate or other ter- sions of the Department of Energy; (B) ADJUSTMENTS.—Proper adjustment minal degree not more than 10 years before (B) advance the development, testing, eval- shall be made in amounts subsequently the date of enactment of this Act and has uation, and deployment of critical energy transferred to the extent prior estimates demonstrated promise in the field of science, technologies; and were in excess of or less than the amounts technology, engineering, or mathematics; or (C) accelerate prototyping and develop- required to be transferred. (2) has an equivalent professional quali- ment of technologies that would address na- (5) AUTHORIZATION OF APPROPRIATIONS.— fication in the field of science, technology, tional energy priorities. There are authorized to be appropriated to engineering, or mathematics. (4) TARGETED COMPETITIONS.—The Director the Fund— (c) GRANT PROGRAM AUTHORIZED.— may solicit proposals to address areas of na- (A) $300,000,000 for fiscal year 2007; (1) IN GENERAL.—The Secretary of Energy, tional need in science and energy tech- (B) $500,000,000 for fiscal year 2008; through the Director of the Office of Science nology, as identified by the Director. (C) $700,000,000 for fiscal year 2009; of the Department of Energy, shall award (5) COORDINATION.—The Director— (D) $900,000,000 for fiscal year 2010; and not less than 65 grants per year to out- (A) shall ensure that the activities of (E) $1,000,000,000 for fiscal year 2011. standing eligible early-career researchers to ARPA-E are coordinated with activities of SEC. 5. AUTHORIZATION OF APPROPRIATIONS support the work of such researchers in the other appropriate research agencies; and FOR THE DEPARTMENT OF ENERGY Department, particularly the National Lab- (B) may carry out projects under this sec- FOR BASIC RESEARCH. oratories, or other federally-funded research tion jointly with other agencies. Section 971(b) of the Energy Policy Act of and development centers. (6) PERSONNEL.— 2005 (42 U.S.C. 16311(b)) is amended— (2) APPLICATION.—An eligible early-career (A) IN GENERAL.—In hiring personnel for (1) in paragraph (2), by striking ‘‘and’’ at researcher who desires to receive a grant ARPA-E, the Secretary shall have the hiring the end; under this section shall submit to the Sec- and management authorities described in (2) in paragraph (3), by striking the period retary of Energy an application at such section 1101 of the Strom Thurmond Na- at the end and inserting a semicolon; and time, in such manner, and accompanied by tional Defense Authorization Act for Fiscal (3) by adding at the end the following: such information as the Secretary may re- Year 1999 (Public Law 105–261; 5 U.S.C. 3104 ‘‘(4) $5,320,000,000 for fiscal year 2010; quire. note). ‘‘(5) $5,851,000,000 for fiscal year 2011; (3) SPECIAL CONSIDERATION.—In awarding (B) TERM.—The term of appointments for ‘‘(6) $6,436,000,000 for fiscal year 2012; and grants under this section, the Secretary of an employee under subparagraph (A) may ‘‘(7) $7,080,000,000 for fiscal year 2013.’’. Energy shall give special consideration to el- not exceed 5 years, except that the Secretary igible early-career researchers who have fol- may renew the term of appointment of the S. 2198 lowed alternative career paths such as work- employee for an additional term of 5 years. Be it enacted by the Senate and House of Rep- ing part-time or in non-academic settings, or (7) DEMONSTRATIONS.—The Director shall resentatives of the United States of America in who have taken a significant career break or periodically hold energy technology dem- Congress assembled, other leave of absence. onstrations to improve contact among tech- SECTION 1. SHORT TITLE. (4) DURATION AND AMOUNT.—A grant under nology developers, vendors, and acquisition this section shall be 5 years in duration. An personnel. (a) SHORT TITLE.—This Act may be cited as eligible early career-researcher who receives (c) FUND.— the ‘‘Protecting America’s Competitive Edge a grant under this section shall receive (1) ESTABLISHMENT.—There is established Through Education and Research Act of $100,000 for each year of the grant period. in the Treasury of the United States a re- 2006’’ or the ‘‘PACE-Education Act’’. (5) USE OF FUNDS.—An eligible early career- volving fund, to be known as the ‘‘Accelera- (b) TABLE OF CONTENTS.—The table of con- researcher who receives a grant under this tion Fund for Research and Development of tents for this Act is as follows: section shall use the grant funds for basic re- Energy Technologies’’, consisting of— Sec. 1. Short title.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00070 Fmt 4637 Sfmt 0655 E:\CR\FM\A26JA6.048 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S215 TITLE I—10,000 TEACHERS, 10,000,000 Subtitle E—Authorization of Appropriations that is not less than 25 percent of the MINDS K–12 MATHEMATICS AND for the National Science Foundation for amount of the grant for the first year of the SCIENCE EDUCATION Research and Related Activities grant, not less than 35 percent of the amount Subtitle A—Education Sec. 251. Authorization of appropriations for of the grant for the second year of the grant, and not less than 50 percent of the amount of Sec. 111. Definitions. the National Science Founda- tion for research and related the grant for each succeeding fiscal year of CHAPTER 1—MATH AND SCIENCE activities. the grant. TEACHERS TITLE III—ENSURING THE BEST AND (e) APPLICATION.— Sec. 121. Baccalaureate degrees in mathe- BRIGHTEST REMAIN IN THE UNITED (1) IN GENERAL.—Each eligible recipient de- matics and science with teacher STATES siring a grant under this section shall sub- certification. mit an application to the Secretary at such Subtitle A—Visas for Doctorate Students in Sec. 122. Master’s degrees in mathematics time, in such manner, and accompanied by Mathematics, Engineering, Technology, or and science education for such information as the Secretary may re- the Physical Sciences teachers. quire. Sec. 311. Findings. CHAPTER 2—NATIONAL SCIENCE FOUN- (2) CONTENTS.—Each application submitted Sec. 312. Sense of the Senate. DATION SCHOLARSHIPS AND FELLOW- pursuant to paragraph (1) shall include— Sec. 313. Visas for doctorate students in SHIPS (A) a description of how the eligible recipi- mathematics, engineering, ent will use grant funds to develop and ad- SUBCHAPTER A—NATIONAL SCIENCE FOUNDA- technology, or the physical minister undergraduate degrees in mathe- TION SCHOLARSHIPS FOR MATHEMATICS AND sciences. matics, science, or engineering with peda- SCIENCE TEACHERS Sec. 314. Aliens not subject to numerical gogy education and teacher certification, in- Sec. 131. Purpose. limitations on employment- cluding a description of proposed high-qual- Sec. 132. Recruiting and training new math- based immigrants. ity research and laboratory experiences that ematics and science teachers. Subtitle B—Patent Reform will be available to students; SUBCHAPTER B—NATIONAL SCIENCE FOUNDA- Sec. 321. Patent reform. (B) a description of how the mathematics, TION FELLOWSHIPS FOR MATHEMATICS AND TITLE IV—REFORMING DEEMED science, or engineering departments will co- SCIENCE TEACHERS EXPORTS ordinate with a teacher preparation program Sec. 141. National Science Foundation fel- to carry out the activities authorized under lowships for mathematics and Sec. 401. Sense of Senate on exemption of this section; science teachers. certain uses of technology from (C) a resource assessment that describes treatment as exports. CHAPTER 3—ADVANCED PLACEMENT the resources available to the eligible recipi- TITLE V—STRENGTHENING BASIC RE- AND INTERNATIONAL BACCA- ent, the intended use of the grant funds, and SEARCH AT THE DEPARTMENT OF DE- LAUREATE PROGRAMS the commitment of the resources of the eli- FENSE gible recipient to the activities assisted Sec. 151. Advanced Placement and Inter- Sec. 501. Department of Defense early-career under this section, including financial sup- national Baccalaureate Pro- research grants. port, faculty participation, time commit- grams. Sec. 502. Authorization of appropriations for ments, and continuation of the activities as- CHAPTER 4—NATIONAL CLEARINGHOUSE the Department of Defense for sisted under the grant when the grant period ON MATHEMATICS AND SCIENCE basic research. ends; TEACHING MATERIALS TITLE I—10,000 TEACHERS, 10,000,000 (D) an evaluation plan, including measur- Sec. 161. National clearinghouse on mathe- MINDS K–12 MATHEMATICS AND able objectives and benchmarks for— matics and science teaching SCIENCE EDUCATION (i) improving student retention; (ii) increasing the percentage of highly materials. Subtitle A—Education qualified mathematics and science teachers; CHAPTER 5—FUTURE AMERICAN- SEC. 111. DEFINITIONS. SCIENTIST SCHOLARSHIPS and Unless otherwise specified in this subtitle, (iii) improving kindergarten through grade Sec. 171. Future American-Scientist Schol- the terms used in this subtitle have the 12 student academic performance in mathe- arships. meanings given the terms in section 9101 of matics and science; CHAPTER 6—GRADUATE RESEARCH the Elementary and Secondary Education (E) a description of the activities the eligi- FELLOWSHIPS Act of 1965 (20 U.S.C. 7801). ble recipient will conduct to ensure grad- Sec. 181. Graduate Research Fellowships in CHAPTER 1—MATH AND SCIENCE uates of the program keep informed of the scientific areas of national TEACHERS latest developments in the respective fields; need. SEC. 121. BACCALAUREATE DEGREES IN MATHE- (F) a description of how the eligible recipi- ent will work with local educational agen- Subtitle B—National Science Foundation MATICS AND SCIENCE WITH TEACH- cies in the area in which the eligible recipi- Early-Career Research Grants ER CERTIFICATION. (a) GRANTS AUTHORIZED.—From the ent is located and, to the extent practicable, Sec. 191. National Science Foundation early- amounts authorized under subsection (g), the with local educational agencies where grad- career research grants. Secretary shall award grants to eligible re- uates of the program authorized under this TITLE II—SOWING THE SEEDS THROUGH cipients to enable the eligible recipients to section are employed, to ensure that the ac- SCIENCE AND ENGINEERING RESEARCH provide integrated courses of study in math- tivities required under subsection (f)(3) are Subtitle A—Office of Science and ematics, science, or engineering and teacher carried out; and Technology Policy Matters education, that lead to a baccalaureate de- (G) a description of efforts to encourage applications to the program from underrep- Sec. 211. Coordination of science, mathe- gree in mathematics, science, or engineering resented groups, including women and mi- matics, and engineering edu- with concurrent teacher certification. nority groups. cation programs. (b) DEFINITION OF ELIGIBLE RECIPIENT.—In Sec. 212. National Coordination Office for this section, the term ‘‘eligible recipient’’ (f) AUTHORIZED ACTIVITIES.—An eligible re- Advanced Research Instrumen- means any department of mathematics, cipient shall use the funds received under tation and Facilities. science, or engineering of an institution of this section— Sec. 213. High-risk, high-payoff research. higher education. (1) to develop and administer teacher edu- Sec. 214. President’s Innovation Award. (c) AWARD AND DURATION.— cation and certification programs with in- (1) AWARD.—The Secretary shall award a depth content education and subject-specific Subtitle B—National Aeronautics and Space grant under this section to each eligible re- education in pedagogy, leading to bacca- Administration Matters cipient that collaborates with a teacher laureate degrees in mathematics, science, or Sec. 221. National Aeronautics and Space preparation program at an institution of engineering with concurrent teacher certifi- Administration early-career re- higher education to develop undergraduate cation; search grants. degrees in mathematics, science, or engi- (2) to offer high-quality research experi- Sec. 222. Authorization of appropriations for neering with pedagogy education and teacher ences and training in the use of educational the National Aeronautics and certification. technology; and Space Administration for basic (2) DURATION.—The Secretary shall award a (3) to work with local educational agencies sciences. grant under this section to each eligible re- in the area in which the eligible recipient is Subtitle C—Communications Matters cipient in an amount that is not more than located and, to the extent practicable, with $1,000,000 per year for a period of 5 years. local educational agencies where graduates Sec. 231. Sense of Senate on policies to ac- (d) MATCHING REQUIREMENT.—Each eligible of the program authorized under this section celerate deployment of access recipient receiving a grant under this section are employed, to support the new teachers to broadband Internet. shall provide, from non-Federal sources (pro- during the initial years of teaching, which Subtitle D—Science Parks vided in cash or in kind), to carry out the ac- may include— Sec. 241. Development of science parks. tivities supported by the grant, an amount (A) promoting effective teaching skills;

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00071 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.049 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S216 CONGRESSIONAL RECORD — SENATE January 26, 2006 (B) development of skills in educational educational agencies in the geographic areas (3) $500,000,000 for fiscal year 2009; interventions based on scientifically-based served by the eligible recipient are provided (4) $500,000,000 for fiscal year 2010; research; information about the activities carried out (5) $500,000,000 for fiscal year 2011; (C) providing opportunities for high-qual- with grant funds under this section; and (6) $500,000,000 for fiscal year 2012; and ity teacher mentoring; (10) describes how the eligible recipient (7) $500,000,000 for fiscal year 2013. (D) providing opportunities for regular pro- will encourage applications to the program CHAPTER 2—NATIONAL SCIENCE FOUN- fessional development; from underrepresented groups, including DATION SCHOLARSHIPS AND FELLOW- (E) interdisciplinary collaboration among women and minority groups. SHIPS exemplary teachers, faculty, researchers, (e) PRIORITY.—The Secretary may give pri- Subchapter A—National Science Foundation and other staff who prepare new teachers; ority consideration to applications that dem- Scholarships for Mathematics and Science and onstrate that the eligible recipient shall— Teachers (F) allowing time for joint lesson planning (1) consult with local educational agencies and other constructive collaborative activi- in developing and administering master’s de- SEC. 131. PURPOSE. ties. gree programs; The purpose of this subchapter is to annu- (g) AUTHORIZATION OF APPROPRIATIONS.— (2) use online technology to allow for flexi- ally recruit and train 10,000 new mathe- There are authorized to be appropriated to bility in the pace at which candidates com- matics and science teachers by providing carry out this section— plete the master’s degree programs; and scholarships for undergraduate courses of (1) $30,000,000 for fiscal year 2007; (3) develop innovative efforts aimed at re- study leading to baccalaureate degrees in (2) $90,000,000 for fiscal year 2008; ducing the shortage of master’s degree level mathematics, science, or engineering, with (3) $190,000,000 for fiscal year 2009; mathematics or science teachers in low-in- concurrent teacher certification. (4) $290,000,000 for fiscal year 2010; come urban or rural areas. SEC. 132. RECRUITING AND TRAINING NEW (5) $390,000,000 for fiscal year 2011; (f) AUTHORIZED ACTIVITIES.—An eligible re- MATHEMATICS AND SCIENCE (6) $500,000,000 for fiscal year 2012; and cipient shall use the grant funds received TEACHERS. (7) $500,000,000 for fiscal year 2013. under this section to develop part-time, 3- (a) GRANTS AUTHORIZED.—From the SEC. 122. MASTER’S DEGREES IN MATHEMATICS year master’s degree programs in mathe- amounts authorized under subsection (g), the AND SCIENCE EDUCATION FOR matics and science education for teachers, Director of the National Science Foundation TEACHERS. conducted over 3 full-time summer sessions, (referred to in this section as the ‘‘Director’’) (a) PURPOSES.—The purpose of this section and alternate weekends during the academic shall award merit-based undergraduate is provide competitive institutional grants year, as appropriate, which shall include— scholarships to eligible students to assist the for eligible recipients to develop part-time, (1) developing courses that— eligible students in paying their college edu- 3-year master’s degree programs in mathe- (A) are based on rigorous mathematics and cation expenses, which shall include tuition, matics and science education for teachers in science content and aligned with challenging fees, books, supplies, and equipment required order to enhance the content knowledge and State academic content standards; for courses of instruction. pedagogical skills of teachers. (B) promote effective teaching skills; and (b) DEFINITION OF ELIGIBLE STUDENT.—In (b) DEFINITION OF ELIGIBLE RECIPIENT.—In this section, the term ‘‘eligible student’’ this section, the term ‘‘eligible recipient’’ (C) promote understanding of effective in- structional strategies for students with spe- means a student who— means a mathematics, science, or engineer- (1) attends an institution of higher edu- ing department of an institution of higher cial needs, including students with disabil- ities, students who are limited English pro- cation; education. (2) is majoring in mathematics, science, or (c) GRANTS AUTHORIZED.— ficient, and students who are gifted and tal- engineering; (1) GRANTS TO ELIGIBLE RECIPIENTS.—From ented; (3) is pursuing concurrent certification in the amounts authorized under subsection (i), (2) hiring and training professional staff to teaching; and the Secretary is authorized to award grants administer the program; (4) demonstrates continued academic of not more than $1,000,000, on a competitive (3) purchasing equipment for computer and achievement and progress, as determined by basis, to eligible recipients to enable the eli- teaching aids; the Director, toward completion of a bacca- gible recipients to carry out the authorized (4) providing educational instruction for laureate degree in mathematics, science, or activities described in subsection (f). not fewer than 20 teachers per year; engineering with concurrent certification in (2) QUALIFICATION.—In order to qualify for (5) providing stipends to help support the a grant under this section, an eligible recipi- participants in the form of tuition reim- teaching. (c) AWARDS.—The Director shall award a ent shall collaborate with a teacher prepara- bursement and travel expenses; and scholarship under this section to an eligible tion program of an institution of higher edu- (6) creating opportunities for clinical expe- student in an amount that is not greater cation. rience and training for teachers through par- (d) APPLICATION.—To be eligible to receive ticipation with professionals in business, re- than $20,000 per academic year for not more a grant under this section, an eligible recipi- search, and work environments relating to than 4 years of undergraduate study. The ent shall submit an application to the Sec- mathematics, science, or engineering, in- amount awarded for each academic year retary that— cluding opportunities for using laboratory shall not exceed the student’s cost of attend- (1) meets the requirements of this section; equipment. ance for the academic year. (2) includes a description of how the eligi- (g) ANNUAL EVALUATION.—Each eligible re- (d) SERVICE REQUIREMENTS.— ble recipient intends to use the grant funds cipient shall establish and include in the ap- (1) SERVICE REQUIREMENT.—An individual provided under this section; plication submitted pursuant to section (d) who is awarded a scholarship under this sec- (3) contains such information and assur- an evaluation plan that includes strong per- tion shall enter into an agreement with the ances as the Secretary may require; formance objectives. The plan shall include Director under which the individual agrees (4) describes how the eligible recipient will objectives and measures for increasing— to be employed for not less than 5 academic prepare teachers to become more effective (1) the percentage of master’s degree level years as a full-time mathematics, science, or mathematics or science teachers; mathematics or science teachers hired by elementary school teacher in a public ele- (5) describes how the eligible recipient will the State in which the eligible recipient is mentary school or secondary school, or 4 coordinate with a teacher preparation pro- located; academic years as a full-time mathematics, gram, and how the activities of the eligible (2) teacher retention; science, or elementary school teacher in a recipient will be consistent with State, local, (3) the percentage of master’s degree level public elementary school or secondary and other education reform activities that mathematics or science teachers serving in school— promote student achievement; high-need schools; (A)(i) in which not less than 40 percent of (6) describes the resources available to the (4) the percentage of master’s degree level the children enrolled in the school are from eligible recipient, the intended use of the mathematics or science teachers among low-income families; or grant funds, and the commitment of re- underrepresented groups; and (ii) designated with a school locale code of sources of the eligible recipient to the activi- (5) the competencies of program graduates 7 or 8, or otherwise designated as a rural ties assisted under this section, including fi- in their respective fields of mathematics or school, as determined by the Secretary; and nancial support, faculty participation, time science. (B)(i) in which there is a higher percentage commitments, and continuation of the ac- (h) GRADUATE FELLOWSHIPS.—An individual of teachers not teaching in the academic tivities when the grant period ends; who has received a master’s degree in mathe- subject areas or grade levels in which the (7) provides an evaluation plan pursuant to matics or science education under a program teachers were trained to teach; or subsection (g); developed pursuant to this section and who (ii) in which there is a high teacher turn- (8) describes how the eligible recipient will meets the requirements of section 141(b)(2) over rate or a high percentage of teachers align the proposed master’s degree program shall be eligible for a fellowship authorized with emergency, provisional, or temporary with challenging student academic achieve- under such section 141(b)(2). certification or licenses. ment standards, and challenging academic (i) AUTHORIZATION OF APPROPRIATIONS.— (2) COORDINATION WITH THE SECRETARY OF content standards, established by the State There are authorized to be appropriated to EDUCATION.—The Director shall coordinate in which the eligible recipient is located; carry out this section— with the Secretary to determine whether an (9) describes the activities the eligible re- (1) $200,000,000 for fiscal year 2007; individual who receives a scholarship award cipient will undertake to ensure that local (2) $500,000,000 for fiscal year 2008; under this section is employed as a full-time

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mathematics, science, or elementary school (II) in which there is a high teacher turn- (2) CONTENTS.—Each application submitted teacher in accordance with paragraphs (1), over rate or a high percentage of teachers pursuant to paragraph (1) shall— (3), and (4). with emergency, provisional, or temporary (A) describe the need for increased access (3) FAILURE TO COMPLY.—If an individual certification or licenses. to Advanced Placement or International who receives a scholarship award under this (2) The Director shall award $10,000 annu- Baccalaureate programs in mathematics and section fails to comply with the agreement ally for 5 academic years to an individual science; entered into pursuant to paragraph (1), the who has received a master’s degree in mathe- (B) provide for the involvement of business Director shall take 1 or more of the fol- matics or science education under a program and community organizations in the activi- lowing actions: developed pursuant to section 122 and who ties to be assisted; (A) Require the individual to repay all or undertakes increased responsibilities, such (C) describe the availability of matching the applicable portion of the total scholar- as teacher mentoring and other leadership funds from non-Federal sources to assist in ship amount awarded to the individual under activities. the activities authorized; and this section. (c) APPLICATION.—An individual desiring a (D) demonstrate an intent to carry out ac- (B) Impose a fine or penalty in an amount fellowship under this section shall submit an tivities that target local educational agen- to be determined by the Director. application to the Director at such time, in cies— (4) REGULATIONS.—The Director shall pro- such manner, and accompanied by such in- (i) that serve not fewer than 10,000 children mulgate regulations setting forth the terms formation as the Director may require. Each from low-income families; of repayment and the criteria to be consid- application shall include assurances that the (ii) for which not less than 20 percent of ered in granting a waiver for the service re- individual meets the requirements of the fel- the children served by the local educational quirements. Such criteria shall include lowship for which the individual is applying. agency are children from low-income fami- whether compliance with the service require- (d) COORDINATION.—The Director shall co- lies; or ments is inequitable and represents undue ordinate with the Secretary to determine (iii) with a total of less than 600 students hardship. whether an individual who receives a fellow- in average daily attendance at the schools (e) COORDINATION WITH THE SECRETARY OF ship under this section meets the require- that are served by the local educational DEFENSE.—The Director shall coordinate ments of this section. agency and all of those schools are des- with the Secretary of Defense to ensure (e) AUTHORIZATION OF APPROPRIATIONS.— ignated with a school locale code of 7 or 8, or members of the Armed Forces are aware of There are authorized to be appropriated— otherwise designated as a rural school, as de- the educational opportunity under this sec- (1) to carry out subsection (b)(1)— termined by the Secretary. tion, particularly members of the Armed (A) $5,000,000 for fiscal year 2008; (e) PRIORITY CONSIDERATION.—The Sec- Forces who have training in engineering. (B) $15,000,000 for fiscal year 2009; retary shall give priority to eligible recipi- (f) FELLOWSHIPS.—An individual shall be (C) $30,000,000 for fiscal year 2010; ents that submit an application under sub- eligible for a fellowship under section (D) $45,000,000 for fiscal year 2011; section (d) that demonstrates a pervasive 141(b)(1) if the individual— (E) $45,000,000 for fiscal year 2012; and need to expand or develop Advanced Place- (1) has received a baccalaureate degree in (F) $45,000,000 for fiscal year 2013; and ment or International Baccalaureate pro- mathematics, science, or engineering, and (2) to carry out subsection (b)(2)— grams in mathematics and science. concurrent certification in teaching; (A) $100,000,000 for fiscal year 2010; (f) AUTHORIZED ACTIVITIES.—An eligible re- (2) has received a scholarship award under (B) $200,000,000 for fiscal year 2011; this section; and cipient shall use the grant funds provided (C) $300,000,000 for fiscal year 2012; and under this section for the following activi- (3) meets the requirements of section (D) $400,000,000 for fiscal year 2013. 141(b)(1). ties: (g) AUTHORIZATION OF APPROPRIATIONS.— CHAPTER 3—ADVANCED PLACEMENT AND (1) To identify and work with local edu- There are authorized to be appropriated to INTERNATIONAL BACCALAUREATE PRO- cational agencies to expand or develop Ad- carry out this section— GRAMS vanced Placement or International Bacca- (1) $50,000,000 for fiscal year 2007; SEC. 151. ADVANCED PLACEMENT AND INTER- laureate and pre-Advanced Placement or pre- (2) $100,000,000 for fiscal year 2008; NATIONAL BACCALAUREATE PRO- International Baccalaureate programs in (3) $150,000,000 for fiscal year 2009; GRAMS. mathematics and science in schools served (4) $170,000,000 for fiscal year 2010; (a) PURPOSE.—The purposes of this section by the local educational agencies. (5) $170,000,000 for fiscal year 2011; are— (2) To work with the local educational (6) $170,000,000 for fiscal year 2012; and (1) to educate an additional 70,000 Ad- agencies to establish Advanced Placement or (7) $170,000,000 for fiscal year 2013. vanced Placement (AP) or International Bac- International Baccalaureate coordinators in Subchapter B—National Science Foundation calaureate (IB) and 80,000 pre-AP or pre-IB each secondary school served by the local Fellowships for Mathematics and Science teachers of mathematics and science over educational agencies. Teachers the 5 year period beginning with 2007; and (3) To ensure master teachers provide (2) to triple to 1,500,000 the number of stu- training to prepare teachers to teach Ad- SEC. 141. NATIONAL SCIENCE FOUNDATION FEL- vanced Placement or International Bacca- LOWSHIPS FOR MATHEMATICS AND dents who take AP and IB mathematics and SCIENCE TEACHERS. science examinations. laureate courses in mathematics and (a) FELLOWSHIP AUTHORIZED.—The Director (b) GRANTS AUTHORIZED.— science, which shall include at a minimum— of the National Science Foundation (referred (1) IN GENERAL.—From the amounts au- (A) week-long summer institutes; and to in this section as the ‘‘Director’’) is au- thorized under subsection (i), the Secretary (B) 2-day seminars in the teachers’ dis- thorized to award fellowships to individuals, shall award grants, on a competitive basis, ciplines each year for 4 years. as described in subsection (b), a portion of to eligible recipients to enable the eligible (4) To ensure master teachers provide which shall be used for continuing education recipients to carry out the activities author- training to prepare teachers to teach pre-Ad- and professional development activities. ized in subsection (f). vanced Placement or pre-International Bac- (b) FELLOWSHIP AWARDS.—The Director (2) LIMITATION.—An eligible recipient may calaureate courses in mathematics and shall award the following fellowships: not receive more than 1 grant at a time science, which shall include at a minimum— (1) The Director shall award $10,000 annu- under this section to undertake authorized (A) a 4-day summer institute; and ally for 4 academic years to an individual activities within the same State. (B) 4 days on campus each year for 4 years. who meets the following criteria: (c) DEFINITIONS.—In this section: (5) To provide stipends to teachers who sat- (A) The individual has received a bacca- (1) ELIGIBLE RECIPIENT.—The term ‘‘eligible isfactorily complete the Advanced Place- laureate degree in mathematics, science, or recipient’’ means a nonprofit educational en- ment or International Baccalaureate or pre- engineering, and concurrent certification in tity with expertise in Advanced Placement Advanced Placement or pre-International teaching. or International Baccalaureate services. Baccalaureate training. (B) The individual received a scholarship (2) MASTER TEACHER.—The term ‘‘master (6) To provide a bonus to a teacher who has award under section 132. teacher’’ means a teacher— satisfactorily completed the Advanced (C) The individual is employed as a full- (A) with an advanced degree or an ad- Placement or International Baccalaureate or time mathematics, science, or elementary vanced certification; pre-Advanced Placement or pre-Inter- school teacher in a public elementary school (B) who uses the most effective teaching national Baccalaureate training for each stu- or secondary school— methods in the teacher’s disciplines; and dent of the teacher who passes an Advanced (i)(I) in which not less than 40 percent of (C) who has shown demonstrable results of Placement or International Baccalaureate the children enrolled in the school are from higher student achievement in mathematics examination in mathematics and science. low-income families; or or science. (7) To provide test preparation sessions for (II) designated with a school locale code of (d) APPLICATION.— students taking Advanced Placement or 7 or 8, or otherwise designated as a rural (1) IN GENERAL.—Each eligible recipient de- International Baccalaureate examinations in school, as determined by the Secretary; and siring a grant under this section shall sub- mathematics and science. (ii)(I) in which there is a high percentage mit an application to the Secretary at such (8) To reimburse students half of the cost of teachers not teaching in the academic time, in such manner, and accompanied by of the Advanced Placement or International subject areas or grade levels in which the such information as the Secretary may re- Baccalaureate mathematics and science ex- teachers were trained to teach; or quire. amination fees.

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(9) To provide scholarships to students who (A) A majority representation of educators (2) FUTURE AMERICAN-SCIENTIST SCHOLAR- pass the Advanced Placement or Inter- and parents directly involved in the kinder- SHIPS.—A scholarship awarded under this national Baccalaureate mathematics and garten through grade 12 education process. section shall be called a ‘‘Future American- science examinations. (B) Proportionate representation of edu- Scientist Scholarship’’. (g) EVALUATION AND ACCOUNTABILITY cators and parents from all demographic (c) AMOUNT; DURATION.— PLAN.— areas, including urban, suburban and rural (1) AMOUNT.—A scholarship award under (1) IN GENERAL.—Each eligible recipient re- schools. this section shall be in an amount of not ceiving a grant under this section shall de- (C) Proportionate representation of edu- more than $20,000 per year. velop an evaluation and accountability plan cators and parents from public and private (2) DURATION OF SCHOLARSHIP.—A scholar- for activities assisted under this section that schools. ship awarded to an eligible student under includes rigorous objectives that measure (3) QUALIFICATIONS OF MEMBERS.—The this section shall be for the number of years the impact of activities assisted under this members of the panel shall be individuals necessary for the eligible student to earn a section. who have substantial knowledge or experi- baccalaureate degree in mathematics or (2) CONTENTS.—The plan developed pursu- ence relating to— science, except that no scholarship under ant to paragraph (1) shall include— (A) education, mathematics, or science this section shall be awarded for a period of (A) the number of students served by the policy or programs; or more than 4 years. eligible recipient who are taking pre-Ad- (B) education, mathematics, or science (d) DEFINITIONS.—In this section: vanced Placement or pre-International Bac- curricula content development. (1) ELIGIBLE STUDENT.—The term ‘‘eligible calaureate courses in mathematics and (d) AUTHORIZED ACTIVITIES OF NATIONAL student’’ means a student who— science; PANEL.—The panel shall— (A) is a citizen of the United States; (B) the number of students served by the (1) identify proven effective kindergarten (B) is attending a 4-year institution of eligible recipient who are taking Advanced through grade 12 mathematics and science higher education; Placement or International Baccalaureate teaching materials; (C) is enrolled, or will be enrolled at the courses in mathematics and science; (2) identify the need for new mathematics start of the next academic year, in a course (C) the number of students served by the and science teaching materials, and support of study at an institution of higher edu- eligible recipient who take Advanced Place- the development of such new materials cation that leads to a baccalaureate degree ment or International Baccalaureate mathe- through contracts and cooperative agree- in mathematics or science; matics and science examinations; ments; and (D) demonstrates aptitude, as determined (D) the number of students served by the (3) establish a national clearinghouse of in- by the Secretary, in mathematics or science; eligible recipients who pass Advanced Place- formation on effective kindergarten through or ment or International Baccalaureate mathe- grade 12 mathematics and science teaching (E) for each year of a scholarship under matics and science examinations; and materials. this section, demonstrates continued aca- (E) the number of teachers trained in Ad- (e) DISSEMINATION.—The Secretary shall demic achievement and progress, as deter- vanced Placement or International Bacca- disseminate information related to the clear- mined by the Secretary, toward completion laureate and pre-Advanced Placement or pre- inghouse to State educational agencies, and of a baccalaureate degree in mathematics or International Baccalaureate mathematics otherwise make available and accessible to science. local educational agencies and schools the and science programs. (2) INSTITUTION OF HIGHER EDUCATION.—The teaching materials collected by the panel in term ‘‘institution of higher education’’ has (h) MATCHING REQUIREMENTS FOR GRANTS.— the form of a searchable online database or Each eligible recipient receiving a grant the meaning given the term in section 101(a) Internet web site. of the Higher Education Act of 1965 (20 U.S.C. under this section shall provide, from non- (f) MATHEMATICS AND SCIENCE TEACHING Federal sources (in cash or in kind), an 1001(a)). MATERIALS.— (3) QUALIFIED EXPENSES.—The term ‘‘quali- amount equal to 100 percent of the amount of (1) RELIABILITY AND MEASUREMENT.—The the grant for each year of the grant, of which fied expenses’’ means the tuition, books, kindergarten through grade 12 mathematics fees, supplies, and equipment required for a not less than 25 percent shall come from and science teaching materials collected State sources. course of instruction leading to a bacca- under this section shall be— laureate degree in mathematics or science at (i) AUTHORIZATION OF APPROPRIATIONS.— (A) reliable, valid, and grounded in sci- a 4-year institution of higher education of There are authorized to be appropriated to entific theory and research in existence as of the eligible student’s choosing. carry out this section— the date of the collection of materials; (4) SECRETARY.—The term ‘‘Secretary’’ (1) $241,000,000 for fiscal year 2007; (B) reviewed regularly to assess effective- means the Secretary of Energy. (2) $341,000,000 for fiscal year 2008; ness; and (e) AUTHORIZATION OF APPROPRIATIONS.— (3) $453,000,000 for fiscal year 2009; (C) developed in careful consideration of There are authorized to be appropriated to (4) $596,000,000 for fiscal year 2010; and State academic assessments and student aca- carry out this section— (5) $731,000,000 for fiscal year 2011. demic achievement standards. (1) $375,000,000 for fiscal year 2007; CHAPTER 4—NATIONAL CLEARINGHOUSE (2) STUDENTS WITH DIVERSE LEARNING (2) $750,000,000 for fiscal year 2008; ON MATHEMATICS AND SCIENCE NEEDS.—The teaching materials shall include (3) $1,125,000,000 for fiscal year 2009; and TEACHING MATERIALS relevant materials for students with diverse (4) $1,500,000,000 for each of the fiscal years learning needs, particularly for students 2010 through 2013. SEC. 161. NATIONAL CLEARINGHOUSE ON MATH- with disabilities and students with limited EMATICS AND SCIENCE TEACHING CHAPTER 6—GRADUATE RESEARCH MATERIALS. English proficiency. FELLOWSHIPS (g) AUTHORIZATION OF APPROPRIATIONS.— (a) PURPOSE.—The purpose of the this sec- There are authorized to be appropriated to SEC. 181. GRADUATE RESEARCH FELLOWSHIPS tion is to strengthen the skills of mathe- carry out this section $20,000,000 for fiscal IN SCIENTIFIC AREAS OF NATIONAL NEED. matics and science teachers by establishing year 2007 and $20,000,000 for each of the fiscal a national clearinghouse of proven effective (a) FELLOWSHIPS AUTHORIZED.—From the years 2008 through 2011. amounts appropriated under subsection (e), kindergarten through grade 12 mathematics CHAPTER 5—FUTURE AMERICAN- and science teaching materials. the Secretary shall establish a fellowship SCIENTIST SCHOLARSHIPS program to provide tuition and financial sup- (b) EFFECTIVE MATHEMATICS AND SCIENCE SEC. 171. FUTURE AMERICAN-SCIENTIST SCHOL- port for eligible students pursuing master’s TEACHING MATERIALS.—The Secretary is au- ARSHIPS. and doctoral degrees in mathematics or thorized to convene, not later than 1 year (a) PURPOSE.—The purpose of this section science (including engineering) or other after the date of enactment of this Act, a na- is to increase the number and percentage of areas of national need. tional panel to collect proven effective kin- citizens of the United States who earn bacca- (b) AREAS OF NATIONAL NEED.—The Sec- dergarten through grade 12 mathematics and laureate degrees in mathematics or science retary may establish, on an annual basis, science teaching materials, or to support the (including engineering) by providing 25,000 areas of national need important to the mis- development of new materials where no ef- new competitive merit-based undergraduate sion of the Department of Energy, and may fective models exist. scholarships to students who are citizens of use the areas of national need in determining (c) COMPOSITION OF NATIONAL PANEL.— the United States, for the purpose of ena- the specific fields of study to be supported by (1) CONSULTATION.—The Secretary shall ap- bling each such student to obtain a bacca- fellowship awards under this section. In es- point members to the panel after consulta- laureate degree in mathematics or science at tablishing the areas of national need, the tion with the National Academy of Sciences a 4-year institution of higher education. Secretary shall consider the results of the of the National Academies. (b) SCHOLARSHIPS.— survey conducted under section 1101 of the (2) SELECTION.—The Secretary shall ensure (1) IN GENERAL.—From the amounts au- Energy Policy Act of 2005 (42 U.S.C. 16411). that the panel broadly represents scientists, thorized under subsection (e), the Secretary (c) USE AND AMOUNT OF AWARDS.—A fellow- practitioners, educators, representatives shall award the scholarships to eligible stu- ship award under this section shall be— from entities with expertise in education, dents that shall be used by the eligible stu- (1) in an amount that is commensurate mathematics, and science, and parents. The dents to pay for qualifying expenses at the 4- with the amount of similar graduate re- Secretary shall ensure that the panel in- year institution of higher education of the search fellowships awarded by the National cludes the following: eligible students’ choosing. Science Foundation; and

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00074 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.049 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S219 (2) used by the eligible student to cover TITLE II—SOWING THE SEEDS THROUGH shall be consistent with the most current na- educational expenses and to provide addi- SCIENCE AND ENGINEERING RESEARCH tional goals for the support by the Federal tional financial support. Subtitle A—Office of Science and Technology Government of education in mathematics, (d) DEFINITIONS.—In this section: Policy Matters science, and engineering developed under (1) ELIGIBLE STUDENT.—The term ‘‘eligible SEC. 211. COORDINATION OF SCIENCE, MATHE- subsection (a). student’’ means a student who is enrolled in MATICS, AND ENGINEERING EDU- (4) AVAILABILITY TO PUBLIC.—The Director a master’s or doctoral degree program in CATION PROGRAMS. of the Office of Science and Technology Pol- mathematics or science (including engineer- (a) NATIONAL GOALS.— icy shall take appropriate actions to ensure ing) or other areas of national need at an in- (1) BODY FOR ESTABLISHMENT OF GOALS.— that each plan developed under this sub- stitution of higher education (as defined in The Director of the Office of Science and section is available to the public. section 171). Technology Policy shall establish within the (e) STAFFING AND OTHER RESOURCES.—The (2) SECRETARY.—The term ‘‘Secretary’’ President’s Committee of Advisors on Director of the Office of Science and Tech- means the Secretary of Energy. Science and Technology a standing sub- nology Policy shall assign the Deputy As- committee on education in mathematics, sistant Director of the Office of Science and (e) AUTHORIZATION OF APPROPRIATIONS.— science, and engineering in the Federal Gov- Technology Policy for Science, Mathe- There are authorized to be appropriated ernment. matics, and Engineering Educations Pro- under this section— (2) RESPONSIBILITY.—The subcommittee es- grams such personnel and other resources as (1) $225,000,000 for fiscal year 2007; tablished under this subsection shall— the Director considers appropriate in order (2) $450,000,000 for fiscal year 2008; and (A) develop national goals for the support to permit the Deputy Assistant Director to (3) $675,000,000 for each of the fiscal years by the Federal Government of education in carry out the duties of the Deputy Assistant 2009 through 2013. mathematics, science, and engineering; and Director under this section. Subtitle B—National Science Foundation (B) periodically review and update any (f) DEADLINES FOR CERTAIN ACTIONS.— Early-Career Research Grants goals so developed. (1) ESTABLISHMENT OF SUBCOMMITTEE.—The (3) PUBLIC COMMENT.—The Director shall Director of the Office of Science and Tech- SEC. 191. NATIONAL SCIENCE FOUNDATION enter into an agreement with the National EARLY-CAREER RESEARCH GRANTS. nology Policy shall establish the sub- Academy of Sciences or other appropriate committee required by subsection (a)(1) not (a) PURPOSE.—It is the purpose of this sec- scientific organization to seek public com- later than 30 days after the date of the enact- tion to authorize research grants in the Na- ment on the national goals developed under ment of this Act. tional Science Foundation, for early-career this subsection. (2) APPOINTMENT OF DEPUTY ASSISTANT DI- (b) DEPUTY ASSISTANT DIRECTOR FOR scientists and engineers for purposes of pur- RECTOR.—The Director of the Office of suing independent research. SCIENCE, MATHEMATICS, AND ENGINEERING Science and Technology Policy, acting EDUCATION PROGRAMS.— (b) DEFINITION OF ELIGIBLE EARLY-CAREER through the Associate Director for Science (1) IN GENERAL.—There shall be in the Of- RESEARCHER.—In this section, the term ‘‘eli- of the Office of Science and Technology Pol- gible early-career researcher’’ means an indi- fice of Science and Technology Policy a Dep- icy, shall make the first appointment to the vidual who— uty Assistant Director of the Office of position of Deputy Assistant Director of the (1) completed a doctorate or other ter- Science and Technology Policy for Science, Office of Science and Technology Policy for minal degree not more than 10 years before Mathematics, and Engineering Education Science, Mathematics, and Engineering Edu- the date of enactment of this Act and has Programs who shall be appointed by the Di- cation Programs under subsection (b)(1) not demonstrated promise in the field of science, rector of the Office of Science and Tech- later than 60 days after the date of the enact- technology, engineering, or mathematics; or nology Policy, acting through the Associate ment of this Act. (2) has an equivalent professional quali- Director for Science of the Office of Science and Technology Policy, from among individ- SEC. 212. NATIONAL COORDINATION OFFICE FOR fication in the field of science, technology, ADVANCED RESEARCH INSTRUMEN- engineering, or mathematics. uals having the qualifications specified in TATION AND FACILITIES. paragraph (2). (c) GRANT PROGRAM AUTHORIZED.— (a) ESTABLISHMENT.— (2) QUALIFICATIONS FOR APPOINTMENT.—The (1) IN GENERAL.—The Director of the Office (1) IN GENERAL.—The Director of the Na- qualifications of an individual for appoint- of Science and Technology Policy shall es- tional Science Foundation shall award not ment as Deputy Assistant Director shall in- tablish within the Office of Science and less than 65 grants per year to outstanding clude such professional experience and exper- Technology Policy an office to be known as eligible early-career researchers to support tise, and such other qualifications, as the Di- the ‘‘National Coordination Office for Ad- the work of such researchers in universities, rector of the Office of Science and Tech- vanced Research Instrumentation and Fa- private industry, or federally-funded re- nology Policy considers appropriate to per- cilities’’. search and development centers. mit such individual to advise the Director on (2) HEAD OF OFFICE.—The head of the Na- (2) APPLICATION.—An eligible early-career all matters relating to the education pro- tional Coordination Office for Advanced Re- researcher who desires to receive a grant grams of the Executive Branch on mathe- search Instrumentation and Facilities shall under this section shall submit to the Direc- matics, science, and technology. be the Director of the National Coordination tor of the National Science Foundation an (c) RESPONSIBILITY.—The Deputy Assistant application at such time, in such manner, Director of the Office of Science and Tech- Office for Advanced Research Instrumenta- and accompanied by such information as the nology Policy for Science, Mathematics, and tion and Facilities, who shall be appointed Director may require. Engineering Educations Programs shall en- by the Director of the Office of Science and (3) SPECIAL CONSIDERATION.—In awarding sure effective coordination among the de- Technology Policy. grants under this section, the Director of the partments, agencies, and elements of the (3) STAFF AND OTHER RESOURCES.—The Di- National Science Foundation shall give spe- Federal Government in the discharge of the rector of the Office of Science and Tech- cial consideration to eligible early-career re- education programs of the Executive Branch nology Policy shall assign to the National searchers who have followed alternative ca- on mathematics, science, and technology. Coordination Office for Advanced Research reer paths such as working part-time or in (d) PLAN FOR COORDINATION OF PRO- Instrumentation and Facilities such per- non-academic settings, or who have taken a GRAMS.— sonnel and other resources as the Director of significant career break or other leave of ab- (1) IN GENERAL.—In carrying out the re- the Office of Science and Technology Policy sence. sponsibility described in subsection (c), the considers appropriate in order to permit the (4) DURATION AND AMOUNT.—A grant under Deputy Assistant Director of the Office of National Coordination Office for Advanced this section shall be 5 years in duration. An Science and Technology Policy for Science, Research Instrumentation and Facilities to eligible early career-researcher who receives Mathematics, and Engineering Educations carry out its duties under this section. a grant under this section shall receive Programs shall develop each year a plan for (4) DEADLINE FOR ESTABLISHMENT.—The Na- $100,000 for each year of the grant period. the coordination of the education programs tional Coordination Office for Advanced Re- (5) USE OF FUNDS.—An eligible early career- of the Executive Branch on mathematics, search Instrumentation and Facilities shall researcher who receives a grant under this science, and technology during the five fiscal be established not later than 30 days after section shall use the grant funds for basic re- years beginning in the year of such plan. the date of the enactment of this Act. search in natural sciences, engineering, (2) ELEMENTS.—Each plan developed under (b) DUTIES.— mathematics, or computer sciences at a uni- this subsection shall include— (1) IN GENERAL.—The National Coordina- versity, private industry, or federally-funded (A) mechanisms for the coordination of the tion Office for Advanced Research Instru- research and development center. education programs of the Executive Branch mentation and Facilities shall coordinate (6) AUTHORIZATION OF APPROPRIATIONS.— on mathematics, science, and technology the award by the departments, agencies, and There are authorized to be appropriated to during the five fiscal years beginning in the other elements of the Federal Government of carry out this section— year of such plan; and grants for advanced research instrumenta- (A) $6,500,000 for fiscal year 2007; (B) recommendations on funding, by agen- tion and facilities. (B) $13,000,000 for fiscal year 2008; cy, of such education programs during each (2) ADVANCED RESEARCH INSTRUMENTATION (C) $19,500,000 for fiscal year 2009; such fiscal year. AND FACILITIES.— (D) $26,000,000 for fiscal year 2010; and (3) CONSISTENCY WITH NATIONAL GOALS.— (A) IN GENERAL.—For purposes of this sec- (E) $32,500,000 for fiscal year 2011. Each plan developed under this subsection tion, advanced research instrumentation and

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00075 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.049 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S220 CONGRESSIONAL RECORD — SENATE January 26, 2006 facilities are specially designed and devel- agement and Budget on the amounts to be shall enter into an agreement with the Na- oped instruments or tools (whether of a requested in the budget of the President (as tional Academy of Sciences, or similar enti- physical or nonphysical nature) that are submitted to Congress under section 1105 of ty, to solicit public comment, through a available commercially but are overly expen- title 31, United States Code) for each fiscal broad media solicitation, on the guidelines sive for design and development under a sin- year for the award of grants for advanced re- required by subsection (a) before the final gle research grant. search instrumentation and facilities. issuance of such guidelines. (B) EXAMPLES.—Examples of advanced re- (e) USE OF GRANT AMOUNTS.—Amounts (e) REVIEW.—The President’s Committee of search instrumentation and facilities for under grants awarded by departments, agen- Advisors on Science and Technology shall, purposes of this section include the fol- cies, and other elements of the Federal Gov- not less often than once every two years, lowing: ernment for advanced research instrumenta- conduct a review to determine whether or (i) Single, stand-alone instruments or in- tion and facilities may be used for purposes not Federal research agencies are allocating strument suites. as follows: basic research funds in accordance with the (ii) Networks. (1) The purchase and installation of instru- guidelines required by subsection (a). (iii) Computational modeling applications. ments. (f) ANNUAL REPORTS TO CONGRESS.— (iv) Computer databases. (2) The commissioning of equipment. (1) REPORTS REQUIRED.—The Director of the (v) Sensor systems. (3) The calibration of instruments. Office of Management and Budget shall, in (vi) Facilities that house ensembles of (4) The acquisition of parts and materials consultation with the Director of the Office interrelated instruments. for construction of instruments. of Science and Technology Policy, submit to (vii) Instruments assembled from compo- (5) Personnel costs of personnel engaged in Congress each year a report on the use by nents. the development of instruments. Federal research agencies of basic research (3) DISCHARGE OF DUTIES.—The Office shall (6) The operation and maintenance of in- funds for high-risk, high-payoff research dur- coordinate the award of grants for advanced struments. ing the preceding fiscal year. research instrumentation and facilities (7) Such other purposes as the Director of (2) TIME FOR SUBMITTAL.—The Director of under this section in accordance with the the National Coordination Office for Ad- the Office of Management and Budget shall strategic implementation plan developed vanced Research Instrumentation and Fa- submit the report required by paragraph (1) under subsection (c). cilities considers appropriate. for a year together with the budget of the (c) STRATEGIC IMPLEMENTATION PLAN.— (f) AUTHORIZATION OF APPROPRIATIONS.— President for the fiscal year beginning in (1) PLAN REQUIRED.—Not later than one (1) IN GENERAL.—In addition to amounts such year (as submitted to Congress under year after the date of the enactment of this appropriated under Federal law other than section 1105 of title 31, United States Code). Act, the Director of the Office of Science and this Act, there is authorized to be appro- (g) DEFINITIONS.—In this section: Technology Policy shall, in consultation priated for each of fiscal years 2008 through (1) FEDERAL RESEARCH AGENCY.—The term with the Director of the Office of Manage- 2012, to carry out this section (including the ‘‘Federal research agency’’ means a major ment and Budget, develop a plan for the plan specified in subsection (c))— organizational component of a department award by the departments, agencies, and (A) $1,000,000 to the Office of Science and or agency of the Federal Government, or other elements of the Federal Government of Technology Policy; other establishment of the Federal Govern- grants for advanced research instrumenta- (B) $150,000,000 to the National Science ment operating with appropriated funds, tion and facilities during the five-year period Foundation; that has as its primary purpose the perform- beginning on the date of the issuance of the ance of scientific research. plan. (C) $87,000,000 to the Department of De- fense; (2) MAJOR ORGANIZATIONAL COMPONENT.— (2) ELEMENTS.—The plan required by para- graph (1) shall include the following: (D) $152,000,000 to the Office of Science of The term ‘‘major organizational compo- (A) Criteria applicable to the award of the Department of Energy; and nent’’, with respect to a department, agency, grants for advanced research instrumenta- (E) $117,000,000 to the National Aeronautics or other establishment of the Federal Gov- tion and facilities, including criteria applica- and Space Administration. ernment, means a component of the depart- ble to— (2) AVAILABILITY.—The amount authorized ment, agency, or other establishment that is (i) scientific and technical merit; to be appropriated by this subsection shall administered by an individual whose rate of (ii) the identification of the strategic re- remain available until expended. basic pay is not less than the rate of basic quirements of the departments, agencies, SEC. 213. HIGH-RISK, HIGH-PAYOFF RESEARCH. pay payable under level V of the Executive and other elements of the Federal Govern- (a) IN GENERAL.—Not later than 180 days Schedule under section 5316 of title 5, United ment; and after the date of the enactment of this Act, States Code. (iii) national science and technology needs. the Director of the Office of Science and SEC. 214. PRESIDENT’S INNOVATION AWARD. (B) An assessment of the current and an- Technology Policy shall, in consultation (a) AUTHORITY TO AWARD.— ticipated needs of the departments, agencies, with the Director of the Office of Manage- (1) IN GENERAL.—The Director of the Office and other elements of the Federal Govern- ment and Budget, establish guidelines to en- of Science and Technology Policy shall, sub- ment for advanced research instrumentation sure that each Federal research agency allo- ject to the approval of the President, award and facilities. cates not less than 8 percent of the funds each year to one or more individuals an (C) A report to Congress on the proposed available to such agency each fiscal year for award that recognizes recent innovations in allocation of funds, including amounts au- basic research for high-risk, high-payoff re- science and engineering in the United States. thorized to be appropriated by subsection (f), search. (2) DESIGNATION.—The award made under by the departments, agencies, and other ele- (b) HIGH-RISK, HIGH-PAYOFF RESEARCH.— this section shall be known as the ‘‘Presi- ments of the Federal Government for grants For purposes of this section, high-risk, high- dent’s Innovation Award’’. for advanced research instrumentation and payoff research is research that— (3) PRESENTATION.—The presentation of facilities. (1) has the potential for yielding results awards made under this section shall be (3) PUBLIC COMMENT.—In developing the with far-ranging or wide-ranging implica- made by the President. plan required by paragraph (1), the Director tions; but (b) SELECTION OF RECIPIENTS.— of the Office of Science and Technology Pol- (2) is too novel or spans too diverse a range (1) IN GENERAL.—The Director of the Office icy shall enter into an agreement with the of disciplines to fare well in the traditional of Science and Technology Policy shall iden- National Academy of Sciences, or other peer review process. tify recipients of the award under this sec- similar entity, to secure public comments on (c) GUIDELINE ELEMENTS.—The guidelines tion from among individuals whose achieve- the plan. required by subsection (a) shall include pro- ments are recognized in the most recent doc- (d) RECOMMENDATIONS ON AGENCY FUND- visions on the following: ument entitled ‘‘Interagency Research and ING.— (1) Expedited procedures for the approval Development Priorities’’ published by the (1) IN GENERAL.—The Director of the Office of the use of funds for high-risk, high-payoff Director of the Office of Management and of Science and Technology Policy shall, in research. Budget and the Director of the Office of consultation with the Director of the Na- (2) Annual reports by Federal research Science and Technology Policy. tional Coordination Office for Advanced Re- agencies on activities relating to high-risk, (2) SOLICITATION OF RECOMMENDATIONS.—In search Instrumentation and Facilities, make high-payoff research. identifying potential recipients of the award recommendations each year to the Director (3) Criteria to establish the duration of under this section, the Director of the Office of the Office of Management and Budget on funding for high-risk, high-payoff research of Science and Technology Policy shall so- the amount of funds to be requested for the projects. licit recommendations from the heads of departments, agencies, and other elements of (4) Objectives for high-risk, high-payoff re- Federal agencies and the general public. the Federal Government for the fiscal year search projects. (c) NATURE OF AWARD.—The award made beginning in such year for the award of (5) Such other criteria, objectives, or other under this section shall consist of the fol- grants for advanced research instrumenta- matters as the Director of the Office of lowing: tion and facilities. Science and Technology Policy considers ap- (1) A medal, of such design as the Director (2) PURPOSE.—The purpose of the rec- propriate. of the Office of Science and Technology Pol- ommendations under paragraph (1) shall be (d) PUBLIC COMMENT.—The Director of the icy shall determine (subject to the approval to advise the Director of the Office of Man- Office of Science and Technology Policy of the President).

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00076 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.049 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S221 (2) A certificate of recognition. (2) $3,044,000,000 for fiscal year 2008. (3) by adding at the end the following new (3) A cash prize, in such amount as the Di- (3) $3,349,000,000 for fiscal year 2009. paragraph: rector considers appropriate. (4) $3,684,000,000 for fiscal year 2010. ‘‘(16) promote the formation of science (d) AUTHORIZATION OF APPROPRIATIONS.— (5) $4,052,000,000 for fiscal year 2011. parks.’’. There is hereby authorized to be appro- (6) $4,457,000,000 for fiscal year 2012. (d) SCIENCE PARKS.—Such Act is further priated to the Office of Science and Tech- (7) $4,903,000,000 for fiscal year 2013. amended by adding at the end the following nology Policy each fiscal year $1,000,000 for (b) COVERED RESEARCH.—The research new section: the making of awards under this section. specified in this subsection is research under ‘‘SEC. 24. SCIENCE PARKS. Subtitle B—National Aeronautics and Space programs as follows: ‘‘(a) DEVELOPMENT OF PLANS FOR CON- STRUCTION OF SCIENCE PARKS.— Administration Matters (1) The Solar System Exploration Research Program. ‘‘(1) IN GENERAL.—The Secretary shall SEC. 221. NATIONAL AERONAUTICS AND SPACE (2) The Mars Exploration Research Pro- award grants for the development of feasi- ADMINISTRATION EARLY-CAREER bility studies and plans for the construction RESEARCH GRANTS. gram. (3) The Astronomical Search for Origins of new or expansion of existing science (a) PURPOSE.—It is the purpose of this sec- Research Program. parks. tion to authorize research grants in the Na- (4) The Structure and Evolution of the Uni- ‘‘(2) LIMITATION ON AMOUNT OF GRANTS.— tional Aeronautics and Space Administra- verse Research Program. The amount of a grant awarded under this tion for early-career scientists and engineers (5) The Earth–Sun Connection Research subsection may not exceed $750,000. for purposes of pursuing independent re- Program. ‘‘(3) AWARD.— search. (6) The Earth Systems Science Research ‘‘(A) COMPETITION REQUIRED.—The Sec- (b) DEFINITION OF ELIGIBLE EARLY-CAREER Program. retary shall award any grant under this sub- RESEARCHER.—In this section, the term ‘‘eli- (7) The Earth Science Applications Re- section pursuant to a full and open competi- gible early-career researcher’’ means an indi- search Program. tion. vidual who— (8) The Biological Sciences Research Pro- ‘‘(B) ADVERTISING.—The Secretary shall ad- (1) completed a doctorate or other ter- gram. vertise any competition under this para- minal degree not more than 10 years before (9) The Physical Sciences Research Pro- graph in the Commerce Business Daily. the date of enactment of this Act and has gram. ‘‘(C) SELECTION CRITERIA.—The Secretary demonstrated promise in the field of science, (10) The Aeronautics Program. shall publish the criteria to be utilized in technology, engineering, or mathematics; or (11) Such other basic research programs as any competition under this paragraph for (2) has an equivalent professional quali- the Administrator of the National Aero- the selection of recipients of grants under fication in the field of science, technology, nautics and Space Administration may de- this subsection. Such criteria shall include engineering, or mathematics. termine to be appropriate, after notifying requirements relating to— (c) GRANT PROGRAM AUTHORIZED.— the appropriate committees of Congress of ‘‘(i) the number of jobs to be created at the (1) IN GENERAL.—The Administrator of the the Administrator’s intent to make the de- science park each year for a period of 5 National Aeronautics and Space Administra- termination. years; tion shall award not less than 45 grants per ‘‘(ii) the funding to be required to con- year to outstanding eligible early-career re- Subtitle C—Communications Matters struct or expand the science park over the searchers to support the work of such re- SEC. 231. SENSE OF SENATE ON POLICIES TO AC- first 5 years; searchers in universities, private industry, CELERATE DEPLOYMENT OF ACCESS ‘‘(iii) the amount and type of cost match- or federally-funded research and develop- TO BROADBAND INTERNET. ing by the applicant; ment centers. It is the sense of the Senate that Congress ‘‘(iv) the types of businesses and research and the Federal Communications Commis- (2) APPLICATION.—An eligible early-career entities expected in the science park and sur- researcher who desires to receive a grant sion should work together to ensure the im- rounding community; under this section shall submit to the Ad- plementation of regulatory policies that fa- ‘‘(v) letters of intent by businesses and re- ministrator of the National Aeronautics and cilitate and accelerate the deployment of ac- search entities to locate in the science park; Space Administration an application at such cess to broadband Internet to order to pro- ‘‘(vi) the capacity of the science park for time, in such manner, and accompanied by vide broadband Internet service to as many expansion over a period of 25 years; such information as the Administrator may residences, businesses, and schools as pos- ‘‘(vii) the quality of life at the science park require. sible in both urban areas and rural areas. for employees at the science park; (3) SPECIAL CONSIDERATION.—In awarding Subtitle D—Science Parks ‘‘(viii) the capability to attract a well grants under this section, the Administrator SEC. 241. DEVELOPMENT OF SCIENCE PARKS. trained workforce to the science park; of the National Aeronautics and Space Ad- (a) FINDING.—Section 2 of the Stevenson- ‘‘(ix) the management of the science park; ministration shall give special consideration Wydler Technology Innovation Act of 1980 (15 ‘‘(x) expected risks in the construction and to eligible early-career researchers who have U.S.C. 3701) is amended by adding at the end operation of the science park; followed alternative career paths such as the following new paragraph: ‘‘(xi) risk mitigation; working part-time or in non-academic set- ‘‘(12) It is in the best interests of the Na- ‘‘(xii) transportation and logistics; tings, or who have taken a significant career tion to encourage the formation of science ‘‘(xiii) physical infrastructure, including break or other leave of absence. parks to promote the clustering of innova- telecommunications; and (4) DURATION AND AMOUNT.—A grant under tion through high technology activities.’’. ‘‘(xiv) ability to collaborate with other this section shall be 5 years in duration. An (b) DEFINITION.—Section 4 of such Act (15 science parks throughout the world. eligible early career-researcher who receives U.S.C. 3703) is amended by adding at the end ‘‘(4) AUTHORIZATION OF APPROPRIATIONS.— a grant under this section shall receive the following new paragraphs: There is authorized to be appropriated for $100,000 for each year of the grant period. ‘‘(14) ‘Science park’ means a group of inter- each of fiscal years 2007 through 2012, (5) USE OF FUNDS.—An eligible early career- related companies and institutions, includ- $7,500,000 to carry out this subsection. researcher who receives a grant under this ing suppliers, service providers, institutions ‘‘(b) REVOLVING LOAN PROGRAM FOR DEVEL- section shall use the grant funds for basic re- of higher education, start-up incubators, and OPMENT OF SCIENCE PARK INFRASTRUCTURE.— search in natural sciences, engineering, trade associations that cooperate and com- ‘‘(1) IN GENERAL.—The Secretary shall mathematics, or computer sciences at a uni- pete and are located in a specific area whose make grants to six regional centers for the versity, private industry, or federally-funded administration promotes real estate develop- development of existing science park infra- research and development center. ment, technology transfer, and partnerships structure through the operation of revolving (6) AUTHORIZATION OF APPROPRIATIONS.— between such companies and institutions, loan funds by such centers. There are authorized to be appropriated to and does not mean a business or industrial ‘‘(2) SELECTION OF CENTERS.— carry out this section— park. ‘‘(A) IN GENERAL.—The Secretary shall se- (A) $4,500,000 for fiscal year 2007; ‘‘(15) ‘Business or industrial park’ means lect the regional centers to be awarded (B) $9,000,000 for fiscal year 2008; primarily a for-profit real estate venture of grants under this subsection utilizing such (C) $13,500,000 for fiscal year 2009; businesses or industries which do not nec- criteria as the Secretary shall prescribe. (D) $18,000,000 for fiscal year 2010; and essarily reinforce each other through supply ‘‘(B) CRITERIA.—The criteria prescribed by (E) $22,500,000 for fiscal year 2011. chain or technology transfer mechanisms. the Secretary under this paragraph shall in- SEC. 222. AUTHORIZATION OF APPROPRIATIONS ‘‘(16) ‘Science park infrastructure’ means clude criteria relating to revolving loan FOR THE NATIONAL AERONAUTICS facilities that support the daily economic ac- funds and revolving loan fund operators AND SPACE ADMINISTRATION FOR tivity of a science park.’’. under paragraph (4), including— BASIC SCIENCES. (c) PROMOTION OF DEVELOPMENT OF SCIENCE ‘‘(i) the qualifications of principal officers; (a) IN GENERAL.—There is hereby author- PARKS.—Section 5(c) of such Act (15 U.S.C. ‘‘(ii) non-Federal cost matching require- ized to be appropriated for the National Aer- 3704(c)) is amended— ments; and onautics and Space Administration for basic (1) in paragraph (14), by striking ‘‘and’’ at ‘‘(iii) conditions for the termination of sciences for research specified in subsection the end; loan funds. (b), amounts as follows: (2) in paragraph (15), by striking the period ‘‘(3) LIMITATION ON LOAN AMOUNT.—The (1) $2,768,000,000 for fiscal year 2007. at the end and inserting ‘‘; and’’; and amount of any loan for the development of

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00077 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.050 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S222 CONGRESSIONAL RECORD — SENATE January 26, 2006 existing science park infrastructure that is ‘‘(A) the final maturity of such loans made guarantees under this subsection, and shall funded under this subsection may not exceed or guaranteed shall not exceed (as deter- submit to Congress a report on the review $3,000,000. mined by the Secretary) the lesser of— conducted under this paragraph. ‘‘(4) REVOLVING LOAN FUNDS.— ‘‘(i) 30 years and 32 days; or ‘‘(7) TERMINATION.—No loan may be guar- ‘‘(A) IN GENERAL.—A regional center re- ‘‘(ii) 90 percent of the useful life of any anteed under this subsection after Sep- ceiving a grant under this subsection shall physical asset to be financed by such loan; tember 30, 2012. fund the development of existing science ‘‘(B) no loan made or guaranteed may be ‘‘(8) AUTHORIZATION OF APPROPRIATIONS.— park infrastructure through the utilization subordinated to another debt contracted by There is authorized to be appropriated— of a revolving loan fund. the borrower or to any other claims against ‘‘(A) $35,000,000 for the cost, as defined in ‘‘(B) OPERATION AND INTEGRITY.—The Sec- the borrowers in the case of default; section 502(5) of the Federal Credit Reform retary shall prescribe regulations to main- ‘‘(C) no loan may be guaranteed unless the Act of 1990, of guaranteeing $500,000,000 of tain the proper operation and financial in- Secretary determines that the lender is re- loans under this subsection; and tegrity of revolving loan funds under this sponsible and that adequate provision is ‘‘(B) $6,000,000 for administrative expenses paragraph. made for servicing the loan on reasonable for fiscal year 2007 and such sums as nec- ‘‘(C) EFFICIENT ADMINISTRATION.—The Sec- terms and protecting the financial interest essary thereafter for administrative ex- retary may— of the United States; penses in subsequent years. ‘‘(d) NATIONAL ACADEMY OF SCIENCES EVAL- ‘‘(i) at the request of a grantee, amend and ‘‘(D) no loan may be guaranteed if the in- UATION.— consolidate grant agreements governing re- come from such loan is excluded from gross income for purposes of chapter 1 of the Inter- ‘‘(1) IN GENERAL.—The Secretary shall volving loan funds to provide flexibility with nal Revenue Code of 1986, or if the guarantee enter into an agreement with the National respect to lending areas and borrower cri- provides significant collateral or security, as Academy of Sciences under which the Acad- teria; determined by the Secretary, for other obli- emy shall evaluate, on a tri-annual basis, the ‘‘(ii) assign or transfer assets of a revolving gations the income from which is so ex- activities under this section. loan fund to a third party for the purpose of cluded; ‘‘(2) TRI-ANNUAL REPORT.—Under the agree- liquidation, and a third party may retain as- ‘‘(E) any guarantee shall be conclusive evi- ment under paragraph (1), the Academy shall sets of the fund to defray costs related to liq- dence that said guarantee has been properly submit to the Secretary a report on its eval- uidation; and obtained, that the underlying loan qualified uation of science park development under ‘‘(iii) take such actions as are appropriate for such guarantee, and that, but for fraud or that paragraph. Each report may include to enable revolving loan fund operators to material misrepresentation by the holder, such recommendations as the Academy con- sell or securitize loans (except that the ac- such guarantee shall be presumed to be siders appropriate for additional activities to tions may not include issuance of a Federal valid, legal, and enforceable; promote and facilitate the development of guaranty by the Secretary). ‘‘(F) the Secretary shall prescribe explicit science parks in the United States. ‘‘(D) TREATMENT OF ACTIONS.—An action standards for use in periodically assessing ‘‘(e) TRI-ANNUAL REPORT.—Not later than taken by the Secretary under this paragraph the credit risk of new and existing direct March 31 of every third year, the Secretary with respect to a revolving loan fund shall loans or guaranteed loans; shall submit to Congress a report on the ac- not constitute a new obligation if all grant ‘‘(G) the Secretary must find that there is tivities under this section during the pre- funds associated with the original grant a reasonable assurance of repayment before ceding 3 years, including any recommenda- award have been disbursed to the recipient. extending credit assistance; and tions made by the National Academy of ‘‘(E) PRESERVATION OF SECURITIES LAWS.— ‘‘(H) new loan guarantees may not be com- Sciences under subsection (d)(2) during such ‘‘(i) NOT TREATED AS EXEMPTED SECURI- mitted except to the extent that appropria- period. Each report may include such rec- TIES.—No securities issued pursuant to sub- tions of budget authority to cover their costs ommendations for legislative or administra- paragraph (C)(iii) shall be treated as exempt- are made in advance, as required in section tive action as the Secretary considers appro- ed securities for purposes of the Securities 504 of the Federal Credit Reform Act of 1990. priate to further promote and facilitate the Act of 1933 or the Securities Exchange Act of ‘‘(5) PAYMENT OF LOSSES.—For purposes of development of science parks in the United 1934, unless exempted by rule or regulation this section— States. of the Securities and Exchange Commission. ‘‘(A) IN GENERAL.—If, as a result of a de- ‘‘(f) REGULATIONS.— ‘‘(1) REGULATIONS.—Consistent with Office ‘‘(ii) PRESERVATION.—Except as provided in fault by a borrower under a guaranteed loan, of Management and Budget Circular A–129, clause (i), no provision of this paragraph or after the holder thereof has made such fur- ‘Policies for Federal Credit Programs and any regulation issued by the Secretary under ther collection efforts and instituted such Non-Tax Receivables’, the Secretary shall this paragraph shall supersede or otherwise enforcement proceedings as the Secretary prescribe regulations to carry out this sec- affect the application of the securities laws may require, the Secretary determines that tion. (as such term is defined in section 2(a)(47) of the holder has suffered a loss, the Secretary ‘‘(2) DEADLINE.—The Secretary shall pre- the Securities Exchange Act of 1934) or the shall pay to such holder the percentage of scribe such regulations not later than one rules, regulations, or orders of the Securities such loss (not more than 80 percent) specified year after the date of enactment of this sec- and Exchange Commission or a self-regu- in the guarantee contract. Upon making any tion.’’. latory organization thereunder. such payment, the Secretary shall be sub- rogated to all the rights of the recipient of ‘‘(5) AUTHORIZATION OF APPROPRIATIONS.— Subtitle E—Authorization of Appropriations There is authorized to be appropriated for the payment. The Secretary shall be entitled for the National Science Foundation for Re- each of fiscal years 2007 through 2012, to recover from the borrower the amount of search and Related Activities any payments made pursuant to any guar- $60,000,000 to carry out this subsection. SEC. 251. AUTHORIZATION OF APPROPRIATIONS antee entered into under this section. FOR THE NATIONAL SCIENCE FOUN- ‘‘(c) LOAN GUARANTEES FOR SCIENCE PARK ‘‘(B) ENFORCEMENT OF RIGHTS.—The Attor- DATION FOR RESEARCH AND RE- INFRASTRUCTURE.— ney General shall take such action as may be LATED ACTIVITIES. ‘‘(1) IN GENERAL.—The Secretary shall appropriate to enforce any right accruing to (a) IN GENERAL.—There is hereby author- guarantee up to 80 percent of the loan the United States as a result of the issuance ized to be appropriated for the National amount for loans exceeding $10,000,000 for of any guarantee under this section. Science Foundation for Research and Re- projects for the construction of science park ‘‘(C) FORBEARANCE.—Nothing in this sec- lated Activities, amounts as follows: infrastructure. tion may be construed to preclude any for- (1) $4,195,000,000 for fiscal year 2007. ‘‘(2) LIMITATIONS ON GUARANTEE AMOUNTS.— bearance for the benefit of the borrower (2) $4,614,000,000 for fiscal year 2008. The maximum amount of loan principal which may be agreed upon by the parties to (3) $5,076,000,000 for fiscal year 2009 guaranteed under this subsection may not the guaranteed loan and approved by the (4) $5,584,000,000 for fiscal year 2010. exceed— Secretary, if budget authority for any result- (5) $6,143,000,000 for fiscal year 2011. ‘‘(A) $50,000,000 with respect to any single ing subsidy costs (as defined under the Fed- (6) $6,757,000,000 for fiscal year 2012. project; and eral Credit Reform Act of 1990) is available. (7) $7,432,000,000 for fiscal year 2013. ‘‘(B) $500,000,000 with respect to all ‘‘(D) MANAGEMENT OF PROPERTY.—Notwith- (b) LIMITATION ON AVAILABILITY.—Amounts projects. standing any other provision of law relating authorized to be appropriated for the Na- tional Science Foundation by subsection (a) ‘‘(3) SELECTION OF GUARANTEE RECIPIENTS.— to the acquisition, handling, or disposal of The Secretary shall select recipients of loan property by the United States, the Secretary shall not be available for the United States Solar Program and Integrative Activities of guarantees under this subsection based upon shall have the right in the Secretary’s dis- the Foundation. the ability of the recipient to collateralize cretion to complete, recondition, recon- the loan amount through bonds, equity, struct, renovate, repair, maintain, operate, TITLE III—ENSURING THE BEST AND property, and other such criteria as the Sec- or sell any property acquired by the Sec- BRIGHTEST REMAIN IN THE UNITED retary shall prescribe. retary pursuant to the provisions of this sec- STATES ‘‘(4) TERMS AND CONDITIONS FOR LOAN GUAR- tion. Subtitle A—Visas for Doctorate Students in ANTEES.—For purposes of this section, the ‘‘(6) REVIEW.—The Comptroller General of Mathematics, Engineering, Technology, or loans guaranteed shall be subject to such the United States shall, within 2 years of the the Physical Sciences terms and conditions as the Secretary may date of enactment of this section, conduct a SEC. 311. FINDINGS. prescribe, except that— review of the subsidy estimates for the loan Congress finds the following:

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00078 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.050 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S223

(1) The National Academies, in their con- (B) by striking ‘‘214(l)’’ and inserting (d) USE OF FEES.— gressionally requested report entitled ‘‘Ris- ‘‘214(m)’’; and (1) JOB TRAINING; SCHOLARSHIPS.—Section ing Above the Gathering Storm: Energizing (C) by striking the comma at the end and 286(s)(1) of the Immigration and Nationality and Employing America for a Brighter Eco- inserting a semicolon; Act (8 U.S.C. 1356(s)(1)) is amended by insert- nomic Future’’, recommended that Con- (2) in clause (ii)— ing ‘‘and 80 percent of the fees collected gress— (A) by inserting ‘‘or clause (iv)’’ after under section 245(i)(4)’’ before the period at (A) continue to improve visa processing for ‘‘clause (i)’’; and the end. international students and scholars by pro- (B) by striking ‘‘, and’’ and inserting a (2) FRAUD PREVENTION AND DETECTION.— viding less complex procedures and con- semicolon; Section 286(v)(1) of the Immigration and Na- tinuing to make improvements on issues (3) in clause (iii), by inserting ‘‘and’’ at the tionality Act (8 U.S.C. 1356(v)(1)) is amended such as visa categories and duration, travel end; and by inserting ‘‘and 20 percent of the fees col- for scientific meetings, the technology-alert (4) by adding at the end the following: lected under section 245(i)(4)’’ before the pe- list, reciprocity agreements, and changes in ‘‘(iv) an alien described in clause (i) who riod at the end. status; has been accepted and plans to attend an ac- SEC. 314. ALIENS NOT SUBJECT TO NUMERICAL (B) provide a 1-year automatic visa exten- credited graduate program in mathematics, LIMITATIONS ON EMPLOYMENT- sion to international students who receive engineering, technology, or the physical BASED IMMIGRANTS. doctorates or the equivalent in science, tech- sciences in the United States for the purpose (a) IN GENERAL.—Section 201(b)(1) of the nology, engineering, mathematics, or other of obtaining a doctorate degree;’’. Immigration and Nationality Act (8 U.S.C. fields of national need at qualified United (b) REQUIREMENTS FOR OBTAINING AN F–4 1151(b)(1)) is amended by adding at the end States institutions to remain in the United VISA.—Section 214(m) of the Immigration the following: States to seek employment; and Nationality Act (8 U.S.C. 1184(m)) is ‘‘(F) Aliens who have earned an advanced (C) provide such students with automatic amended— degree in science, technology, engineering, work permits and expedited residence status (1) by striking the matter preceding para- or math and have been working in a related if they are offered jobs by employers based in graph (1) and inserting the following: field in the United States under a non- the United States and pass a security screen- ‘‘(m) NONIMMIGRANT ELEMENTARY, SEC- immigrant visa during the 3-year period pre- ing test; ONDARY, AND POST-SECONDARY SCHOOL STU- ceding their application for an immigrant (D) institute a new skills-based, pref- DENTS.—’’; and visa under section 203(b). erential immigration option that gives appli- (2) by adding at the end the following: ‘‘(G) Aliens described in subparagraph (A) cants with doctorate-level education and ‘‘(3)(A) An alien who obtains the status of or (B) of section 203(b)(1)(A) or who have re- science and engineering skills priority in ob- a nonimmigrant under section ceived a national interest waiver under sec- taining United States citizenship; and 101(a)(15)(F)(iv) shall demonstrate an intent tion 203(b)(2)(B). (E) increase the number of H–1B visas by to— ‘‘(H) The immediate relatives of an alien 10,000, which should be allocated for appli- ‘‘(i) return to the country of residence of who is admitted as an employment-based im- cants with doctorate degrees in science, or such alien immediately after the completion migrant under section 203(b).’’. engineering from a United States university; or termination of the graduate program (b) APPLICABILITY.—The amendments made and qualifying such alien for such status; or by subsection (a) shall apply to any visa ap- (2) Since the publication of the report by ‘‘(ii) find employment in the United States plication pending on the date of enactment the National Academies, the Senate has related to the field of study of such alien and of this Act and any visa application filed on passed the Deficit Reduction Act of 2005, become a permanent resident of the United or after such date of enactment. which authorizes an additional 30,000 H–1B States upon the completion of the graduate visas per year. program, which was the basis for such non- Subtitle B—Patent Reform SEC. 312. SENSE OF THE SENATE. immigrant status. SEC. 321. PATENT REFORM. It is the sense of the Senate that— ‘‘(B) A visa issued to an alien under section It is the sense of the Senate that— (1) the Department of State and the De- 101(a)(15)(F)(iv) shall be valid— (1) the United States Patent and Trade- partment of Homeland Security have made ‘‘(i) during the intended period of study in mark Office should be provided with suffi- significant improvements since 2002 in the a graduate program described in such sec- cient resources to make intellectual prop- efficiency with which visas are processed tion; erty protection more timely, predictable, for— ‘‘(ii) for an additional period, not to exceed and effective; (A) students at colleges and universities in 1 year beyond the completion of the graduate (2) the resources described under paragraph the United States; and program, if the alien is actively pursuing an (1) should include a 20 percent increase in (B) foreign researchers to engage in appro- offer of employment related to the knowl- overall funding to hire and train additional priate scientific research in the United edge and skills obtained through the grad- examiners and implement more capable elec- States; uate program; and tronic processing; and (2) particular improvements have been ‘‘(iii) for an additional period, not to ex- (3) Congress should implement comprehen- made to the MANTIS clearance process, ceed 6 months, while the alien’s application sive patent reform that— which— for adjustment of status under section (A) establishes a first-inventor-to-file sys- (A) reduce wait times from more than 70 245(i)(4) is pending. tem; days to less than 15 days; and ‘‘(C) An alien shall qualify for adjustment (B) institutes an open review process fol- (B) extend the duration of the MANTIS of status to that of a person admitted for lowing the grant of a patent; clearance process up to 4 years, as appro- permanent residence if the alien— (C) encourages research uses of patented priate, to cover the duration of study for for- ‘‘(i) has the status of a nonimmigrant inventions by shielding researchers from in- eign students in the United States; under section 101(a)(15)(F)(iv); fringement liability; and (3) both departments and related sup- ‘‘(ii) has successfully earned a doctorate (D) reduces barriers to innovation in spe- porting agencies should further improve effi- degree in mathematics, engineering, tech- cific industries with specialized patent ciency and convenience in the granting of nology or the physical sciences at an accred- needs. visas to foreign students and researchers ited college or university in the United TITLE IV—REFORMING DEEMED EXPORTS while protecting national security; States; and (4) the departments should extend MANTIS ‘‘(iii) is employed full-time in the United SEC. 401. SENSE OF SENATE ON EXEMPTION OF clearance for foreign researchers for the du- States in a position related to the knowledge CERTAIN USES OF TECHNOLOGY FROM TREATMENT AS EXPORTS. ration of a specified scientific research pro- and skills gained while pursuing such de- gram while balancing security concerns; and gree.’’. (a) SENSE OF SENATE.—It is the sense of the (5) other such improvements should in- (c) ADJUSTMENT OF STATUS.—Section 245(i) Senate that the use of technology by an in- clude— of the Immigration and Nationality Act (8 stitution of higher education in the United (A) review of the technology-alert list; and U.S.C. 1255(i)) is amended by adding at the States should not be treated as an export of (B) efforts to better facilitate travel for end the following: such technology for purposes of section 5 of scientific conferences. ‘‘(4) The Secretary of Homeland Security the Export Administration Act of 1979 (50 may adjust the status of an alien who meets U.S.C. App. 2404) and any regulations pre- SEC. 313. VISAS FOR DOCTORATE STUDENTS IN MATHEMATICS, ENGINEERING, the requirements under section 214(m)(3) to scribed thereunder, as currently in effect TECHNOLOGY, OR THE PHYSICAL that of an alien lawfully admitted for perma- pursuant to the provisions of the Inter- SCIENCES. nent residence if the alien— national Emergency Economic Powers Act (a) CREATION OF NEW VISA CATEGORY.—Sec- ‘‘(A) makes an application for such adjust- (50 U.S.C. 1701 et seq.), or any other provision tion 101(a)(15)(F) of the Immigration and Na- ment; of law, if such technology is so used by such tionality Act (8 U.S.C. 1101(a)(15)(F)) is ‘‘(B) is eligible to receive an immigrant institution for fundamental research. amended— visa; (b) DEFINITIONS.—In this section: (1) in clause (i)— ‘‘(C) is admissible to the United States for (1) FUNDAMENTAL RESEARCH.—The term (A) by inserting ‘‘(except for a graduate permanent residence; and ‘‘fundamental research’’ has the meaning program described in clause (iv))’’ after ‘‘full ‘‘(D) remits a fee of $1,000 to the Sec- given that term in National Security Deci- course of study’’; retary.’’. sion Directive 189, entitled ‘‘National Policy

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00079 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.050 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S224 CONGRESSIONAL RECORD — SENATE January 26, 2006 on Transfer of Scientific, Technical, and En- (4) $2,151,000,000 for fiscal year 2010. (3) Reduction or elimination of limitation gineering Information’’ and dated September (5) $2,364,000,000 for fiscal year 2011. of credit under section 280C(c) of such Code. 21, 1985. (6) $2,602,000,000 for fiscal year 2012. (f) EFFECTIVE DATE.—Except as otherwise (2) INSTITUTION OF HIGHER EDUCATION.—The (7) $2,862,000,000 for fiscal year 2013. provided, the amendments made by this sec- term ‘‘institution of higher education’’ has tion shall apply to taxable years beginning the meaning given that term in section S. 2199 after December 31, 2005. 101(a) of the Higher Education Act of 1965 (20 Be it enacted by the Senate and House of Rep- SEC. 3. UNITED STATES-BASED INNOVATION IN- U.S.C. 1001(a). resentatives of the United States of America in CENTIVES STUDY. TITLE V—STRENGTHENING BASIC RE- Congress assembled, (a) STUDY.—The Secretary of the Treasury, in consultation with the Director of the Of- SEARCH AT THE DEPARTMENT OF DE- SECTION 1. SHORT TITLE. fice of Management and Budget, shall con- FENSE This Act may be cited as the ‘‘Protecting duct an analysis of the United States tax America’s Competitive Edge Through Tax SEC. 501. DEPARTMENT OF DEFENSE EARLY-CA- system and its effect on this country as a lo- REER RESEARCH GRANTS. Incentives Act of 2006’’ or the ‘‘PACE-Fi- cation for innovation investment and related (a) PURPOSE.—It is the purpose of this sec- nance Act’’. activities. The analysis shall include a com- tion to authorize research grants in the De- SEC. 2. EXPANSION OF CREDIT FOR RESEARCH parison of the tax policies of other nations partment of Defense for early-career sci- AND DEVELOPMENT. relating to long-term innovation investment entists and engineers for purposes of pur- REDIT ADE ERMANENT (a) C M P .— and an examination of various features of suing independent research. N GENERAL (1) I .—Section 41 of the Internal the United States tax system, including— (b) DEFINITION OF ELIGIBLE EARLY-CAREER Revenue Code of 1986 (relating to credit for (1) the treatment of capital gains, includ- RESEARCHER.—In this section, the term ‘‘eli- increasing research activities) is amended by ing the appropriate rate for very long-term gible early-career researcher’’ means an indi- striking subsection (h). investments or the appropriate allowance for vidual who— (2) CONFORMING AMENDMENT.—Paragraph loss write-offs, (1) completed a doctorate or other ter- (1) of section 45C(b) of such Code is amended (2) the overall corporate tax rate, and minal degree not more than 10 years before by striking subparagraph (D). (3) incentives for high-tech manufacturing the date of enactment of this Act and has (3) EFFECTIVE DATE.—The amendments and research equipment through tax credits demonstrated promise in the field of science, made by this subsection shall apply to and accelerated depreciation. technology, engineering, or mathematics; or amounts paid or incurred after the date of (b) REPORT.—Not later than 180 days after (2) has an equivalent professional quali- the enactment of this Act, in taxable years the date of the enactment of this Act, the fication in the field of science, technology, ending after such date. Secretary of the Treasury shall report on the engineering, or mathematics. (b) CREDIT RATE DOUBLED.—Paragraphs (1) study and analysis described in subsection (c) GRANT PROGRAM AUTHORIZED.— and (2) of section 41(a) of the Internal Rev- (a) to the President, the Committee on Fi- (1) IN GENERAL.—The Secretary of Defense enue Code of 1986 is are each amended by nance of the Senate, and the Committee on shall award not less than 25 grants per year striking ‘‘20 percent’’ and inserting ‘‘40 per- Ways and Means of the House of Representa- to outstanding eligible early-career re- cent’’. tives. searchers to support the work of such re- (c) NEW REGULATIONS AND GUIDELINES AU- SEC. 4. EMPLOYEE CONTINUING EDUCATION TAX searchers in universities, private industry, THORIZED.—The Secretary of the Treasury CREDIT. or federally-funded research and develop- shall issue such regulations or guidelines as (a) IN GENERAL.—Subpart D of part IV of ment centers. are necessary— subchapter A of chapter 1 of the Internal (2) APPLICATION.—An eligible early-career (1) to provide uniform conduct of tax au- Revenue Code of 1986 (relating to business re- researcher who desires to receive a grant dits relating to the credit under section 41 of lated credits) is amended by adding at the under this section shall submit to the Sec- the Internal Revenue Code of 1986, and end the following new section: retary of Defense an application at such (2) to reflect the changing impact of tech- ‘‘SEC. 45N. EMPLOYEE CONTINUING EDUCATION time, in such manner, and accompanied by nology on the character of research and de- CREDIT. such information as the Secretary may re- velopment, such as use of databases provided ‘‘(a) AMOUNT OF CREDIT.— quire. by external parties and the conduct of re- ‘‘(1) IN GENERAL.—For purposes of section (3) SPECIAL CONSIDERATION.—In awarding search and development through joint ven- 38, the employee continuing education credit grants under this section, the Secretary of tures. determined under this section with respect Defense shall give special consideration to (d) EXPANSION OF CREDIT TO EXPENSES OF to any employer for any taxable year is the eligible early-career researchers who have GENERAL COLLABORATIVE RESEARCH CON- applicable percentage of qualified continuing followed alternative career paths such as SORTIA.—Section 41 of the Internal Revenue education costs paid or incurred by the em- working part-time or in non-academic set- Code of 1986 is amended— ployer during the calendar year ending with tings, or who have taken a significant career (1) by striking ‘‘an energy research consor- or within such taxable year. break or other leave of absence. tium’’ in subsections (a)(3) and (b)(3)(C)(i) ‘‘(2) APPLICABLE PERCENTAGE.—For pur- (4) DURATION AND AMOUNT.—A grant under and inserting ‘‘a research consortium’’, poses of this section, the applicable percent- this section shall be 5 years in duration. An (2) by striking ‘‘energy’’ each place it ap- age is the percentage determined by the Sec- eligible early career-researcher who receives pears in subsection (f)(6)(A), retary such that the amount of the credit al- a grant under this section shall receive (3) by inserting ‘‘or 501(c)(6)’’ after ‘‘section lowable under this section for any calendar $100,000 for each year of the grant period. 501(c)(3)’’ in subsection (f)(6)(A)(i)(I), and year does not exceed $500,000,000. (5) USE OF FUNDS.—An eligible early career- (4) by striking ‘‘ENERGY RESEARCH’’ in the ‘‘(b) QUALIFIED CONTINUING EDUCATION researcher who receives a grant under this heading for subsection (f)(6)(A) and inserting COSTS.—For purposes of this section, the section shall use the grant funds for basic re- ‘‘RESEARCH’’ . term ‘qualified continuing education costs’ search in natural sciences, engineering, (e) STUDY OF FURTHER EXPANSION OF CRED- means costs paid or incurred by an employer mathematics, or computer sciences at a uni- IT.—Not later than 180 days after the date of for education to maintain or improve knowl- versity, private industry, or federally-funded the enactment of this Act, the Secretary of edge or skills in science or engineering of an research and development center. the Treasury shall study and make rec- employee whose employment requires (6) AUTHORIZATION OF APPROPRIATIONS.— ommendations in a report to the President, knowledge or skills in science or engineer- There are authorized to be appropriated to the Committee on Finance of the Senate, ing. carry out this section— and the Committee on Ways and Means of ‘‘(c) REGULATIONS.—The Secretary may (A) $2,500,000 for fiscal year 2007; the House of Representatives on the fol- prescribe such regulations as may be nec- (B) $5,000,000 for fiscal year 2008; lowing possible methods of expanding the essary or appropriate to carry out the pur- (C) $7,500,000 for fiscal year 2009; scope of the credit under section 41 of the In- poses of this section, including regulations (D) $10,000,000 for fiscal year 2010; and ternal Revenue Code of 1986: establishing standards for educational (E) $12,500,000 for fiscal year 2011. (1) Modification of the credit to remove the courses and programs to which this section SEC. 502. AUTHORIZATION OF APPROPRIATIONS incremental approach of measuring cred- applies.’’. FOR THE DEPARTMENT OF DEFENSE itable research and development expendi- (b) CREDIT MADE PART OF GENERAL BUSI- FOR BASIC RESEARCH. tures for taxpayers with significant and con- NESS CREDIT.—Section 38(b) of the Internal There is hereby authorized to be appro- sistent annual research and development ex- Revenue Code of 1986 is amended by striking priated for the Department of Defense for penditures. ‘‘and’’ at the end of paragraph (25), by strik- basic (6.1) research, amounts for the re- (2) Expansion of qualifying research and ing the period at the end of paragraph (26) search, development, test, and evaluation ac- development expenditures to include— and inserting ‘‘, and’’, and by adding at the counts of the Department, and for other ac- (A) certain employee benefit costs related end the following new paragraph: counts of the Department providing funding to qualifying wages, ‘‘(27) the employee continuing education for such research, in the aggregate as fol- (B) 100 percent of contract research costs, credit determined under section 45N(a).’’. lows: (C) all expenditures which would qualify (c) DENIAL OF DOUBLE BENEFIT.—Section (1) $1,616,000,000 for fiscal year 2007. for treatment under section 174 of such Code, 280C of the Internal Revenue Code of 1986 is (2) $1,778,000,000 for fiscal year 2008. (D) any other costs determined appropriate amended by adding at the end the following (3) $1,995,000,000 for fiscal year 2009. by the Secretary. new subsection:

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00080 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.050 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S225 ‘‘(e) EMPLOYEE CONTINUING EDUCATION pouring resources into their scientific power and resilience of our economy, CREDIT.—No deduction shall be allowed for and technological infrastructure. There signals a lengthy and difficult period of that portion of the expenses otherwise allow- is the distinct possibility that U.S. adjustment for American industry, its able as a deduction for the taxable year competitiveness in key high-tech areas workforce, and ultimately our strong which is equal to the amount of the credit determined under section 45N(a).’’. will fall behind the major Pacific Rim middle class standard of living which (d) CLERICAL AMENDMENT.—The table of countries of India, China, Taiwan, and makes this country great. sections for subpart D of part IV of sub- South Korea. It also flags a pivotal moment in chapter A of chapter 1 of the Internal Rev- Moreover, the focus of our funda- American history—a time of national enue Code of 1986 is amended by adding at mental R&D has shifted away from the peril, as well as a time of national op- the end the following new item: physical sciences, mathematics, and portunity. ‘‘Sec. 45N. Employee continuing edu- engineering—the critical areas of R&D What should we do about these inter- cation credit.’’. most closely correlated with innova- national challenges? We have abso- (e) EFFECTIVE DATE.—The amendments tion and economic growth. lutely no choice but to emphasize what made by this section shall apply to costs Many of our foremost research pro- we do best in this coming rivalry. Our paid or incurred in taxable years beginning grams that have been curtailed or cut most important strengths have always after December 31, 2005. back in recent years have been the cor- been education and innovation. Our Mr. BINGAMAN. Mr. President, I rise nerstone for much of our economic can-do spirit of commercializing tech- today to introduce the Protecting progress and spurred the creation of nological innovation has always been America’s Competitive Edge (PACE) high paying jobs. Budget increases America’s core competence. We do it Act that will enable us to build on our have been disproportionately con- far better than anyone else—we have existing strengths to help secure Amer- centrated primarily in two depart- done it before, and we can continue to ica’s continued economic prosperity in ments—Defense and Homeland Secu- excel at it. the twenty-first century. rity—leaving other vital R&D agencies Last May, Senator LAMAR ALEX- I want to gratefully acknowledge at with very modest increases, or with an ANDER and I asked the National Acad- the outset that I am introducing this increase for some agencies offset by emy of Sciences to conduct a study to legislation with Senator DOMENICI, flat funding, or cuts in others. identify ‘‘specific steps our government Senator ALEXANDER, Senator MIKULSKI, In the name of national security, we should take to ensure the preeminence and others. This measure is the prod- have been building a swaying tower of of America’s scientific and techno- uct of our combined best efforts from insecurity. logical enterprise to enable us to suc- both sides of the aisle, and our sole We are on the brink of a new indus- cessfully compete, prosper, and be se- focus has been only on what is in the trial and commercial world order. The cure in the global community of the best interests of the Nation as a whole. reality of the twenty-first century 21st century.’’ The Academy assembled an extraor- For the last 200 years, our invest- global economy is that China, India, dinarily distinguished panel of Amer- ments in science and technology, both and other nations once considered eco- ica’s best scientific minds, including public and private, have driven our eco- nomic backwaters have discovered how three Nobel Prize winners, business ex- nomic growth and improved the qual- to build strong economies around very ecutives, and university leaders and re- ity of life in America. They have gen- sophisticated technology. ported their findings back to us in Oc- erated new knowledge and new indus- On the Pacific Rim, China has in- tober in a sobering report entitled, Ris- tries, created new jobs, ensured eco- creased spending on colleges and uni- nomic and national security, reduced ing Above the Gathering Storm. versities almost tenfold in the last dec- The National Academy’s report pro- pollution and increased energy effi- ade, and is doubling the proportion of poses four broad recommendations: 1. ciency, provided better and safer trans- GDP invested in that same period on Increase America’s talent pool by vast- portation, improved medical care, and R&D to promote competitiveness and ly improving K–12 science and mathe- increased living standards for the growth. India is raising its funding of matics education; 2. sustain and American people. science agencies by 27 percent, and strengthen the Nation’s traditional America’s scientists and engineers Japan is increasing its investments in commitment to long-term basic re- through their unmatched vitality, cre- life science by 32 percent, while South search; 3. make the United States the ativity, and curiosity have helped us Korea is upgrading research spending most attractive setting in which to not only imagine but invent the future. by 8.5 percent. study and perform research; and 4. en- In large measure, their contributions As our share of the world’s technical sure that the United States is the pre- have made this new century before us graduate workforce slips, European and mier place in the world to innovate. so full of promise—molded by science, Asian universities are churning out First and foremost, we need to fix shaped by technology, and powered by ever greater numbers of workers in sci- our math and science education system knowledge. entific fields. And while young Ameri- from kindergarten through high One of the bedrock policies of our Na- cans may shy away from technical ca- school. We should establish a merit- tion’s economic security must be to reers because they perceive better op- based, 4 year undergraduate scholar- sustain our investments in science and portunities in other high-level occupa- ship program to annually recruit 10,000 technology. Today there is no dispute tions, there are still sufficient rewards students per year to careers teaching that science, and the technology that to attract ever-increasing numbers of math and science who then commit to flows from it, is duly recognized as the foreign graduate students eager to pur- working for at least 4 years in K–12 piston that drives the economic engine sue science and engineering degrees. public schools. that enriches the quality of our lives. All of these signs, granted, are a Using incentives and scholarships, Yet today our preeminence is precar- cause for concern. Yet none of them, our aim should be to quadruple the ious. however, is a cause for panic. To state number of America students enrolled Numerous thoughtful leaders in gov- the facts frankly is not to despair in advanced math and science courses ernment, industry, and academia who about the future, nor is it to indict the to four and a half million by 2010. are concerned about sustaining U.S. past. Our task today is not to fix the A U.S. high school student has about leadership across the frontiers of sci- blame for yesterday, but to set the a 70 percent chance of being taught entific knowledge are expressing grow- proper and prudent course for tomor- English by a teacher with an English ing uneasiness over troubling trends row. degree, but only a 40 percent chance of regarding the Nation’s future pros- These revolutionary changes in the being taught chemistry by a teacher perity. They warn we are slipping in global marketplace for highly skilled with a degree in chemistry. And the our world leadership role in science and technical workers are dislodging the situation is worse for middle school engineering, and losing sight of the im- long-standing dominance of the U.S. students: 70 percent of them are taught portance of long-term investments in scientific enterprise. math by a teacher lacking a certificate creating the conditions of prosperity. That is causing our comparative ad- or major in math. Other nations are coming up fast be- vantage in high tech production to suf- It takes many years to educate a cit- hind us on the scientific track and are fer and, despite the extraordinary izen. There are no short term solutions

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00081 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.047 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S226 CONGRESSIONAL RECORD — SENATE January 26, 2006 to this problem, and workforce issues Equally important, we need a global forms new knowledge into new oppor- rarely respond to quick fixes and often recruitment strategy to attract the tunities for creating high quality jobs span generations. best and brightest to learn and live in and reaching shared goals. That is why there is such a sense of America as part of our high tech work- The passage of this farsighted public urgency to recruit thousands of new force. Our visa, immigration and ex- investment program will ensure that math and science teachers in the years port control policies desperately need the United States is stronger, smarter, ahead through the award of competi- reform. Delays and difficulties in ob- and leads the world in scientific and tive scholarships. Additionally, we taining visas to the U.S. are contrib- technological innovation in the twen- must strengthen 250,000 current teach- uting to a declining in-flow of sci- ty-first century. ers’ math and science teaching skills entific talent. Mr. ALEXANDER. Mr. President, with enhanced training and education We need to ensure the best and today I join with Senators DOMENICI, by leveraging the expertise of the brightest come here, stay here, and ob- BINGAMAN, MIKULSKI, and more than 25 world’s best physicists, mathemati- tain legal residency after college to other senators, in introducing the Pro- cians, and engineers to help provide contribute to our national economy in- tecting America’s Competitive Edge that training. stead of being forced back to their (PACE) Act—a package of three bills to This legislation will also provide home countries to compete against us. enhance American brainpower. greater opportunities for students to Finally, we need to be able to assure America is now playing in a tougher take advanced math and science class- investors that the U.S. is the preferred league. China and India are competing es by increasing the number of stu- site for investments in new or ex- for our jobs. The best way to keep dents who enroll in Advanced Place- panded businesses that create the best those jobs in America is to maintain ment and International Baccalaureate jobs and provide the best services. our brainpower edge in science and science and math courses. To spur U.S.-based research and ex- technology. Second, we must steadily increase perimentation to meet global competi- The story of this bill really began our investment by 10 percent each year tion, we need to modernize the patent last May, when Senator JEFF BINGA- MAN and I, with the encouragement of for the next 7 years in long-term basic system, realign our tax policies to en- Senate Energy Committee Chairman research, with special attention de- courage long-term investments in inno- PETE DOMENICI, asked the National voted to the physical sciences, engi- vation, and ensure the Nation meets Academies this question: ‘‘What are neering, mathematics, and information the goal of affordable broadband Inter- sciences. the ten top actions, in priority order, net access by 2007. The Federal Government supports a that Federal policy makers could take Our patent laws must also be re- majority of the Nation’s basic research over the next decade to help the United formed by moving to a first-to-file in- and nearly 60 percent of the R&D is States keep our advantage in science stead of a first-to-invent, thus bringing performed in U.S. universities. At the and technology?’’ us into line with the rest of the world same time, this investment at univer- To answer the question, the Acad- while reducing expensive litigation. In- sities and colleges plays a key role in emies assembled a distinguished panel educating the next generation of sci- frastructure planning grants and loan of business, government, and univer- entists and engineers and a technically guarantees could also ensure that U.S. sity leaders headed by Norm Augus- skilled workforce. We ought to provide science parks are competitive with tine, former CEO of Lockheed Martin, 200 new research grants annually— those throughout Asia. that included three Nobel Prize win- worth $500,000 each payable over 5 Additionally, we should eliminate ners. They took our question seriously. years—to the Nation’s most out- uncertainty by doubling the R&D tax We asked them for 10 recommenda- standing early-career researchers. credit and making it permanent. Stud- tions; they gave us 20 when they re- Additionally, we should consider cre- ies document that this tax credit en- leased their report in October. ating a revolutionary agency in the courages as much R&D spending as it In October, the Energy Committee Energy Department modeled on the costs in foregone revenue—and perhaps held a hearing to learn more about highly successful Defense Advanced even twice that amount over the long those recommendations from Mr. Au- Research Projects Agency to sponsor haul. gustine and the Academies. It was the research to meet the Nation’s long- We face a competitive challenge of first opportunity Congress had to hear term energy challenges that industry historic proportions today due to sev- the Academies’ answer to our question. by itself cannot or will not support. eral new factors: The growing number Following those hearings, Chairman Just as Olympic-caliber athletes need of countries with advanced skills, mul- DOMENICI, Senator BINGAMAN, and I the finest equipment and training pro- tinational corporations placing their convened a series of ‘‘homework ses- tocols to triumph in their events, so do R&D centers, fueled by high education sions’’ with members of the Academies, scientists, engineers and their students and low labor costs, wherever the prof- outside experts, and some officials in need the most modern research instru- its are the greatest, and virtually the Administration. These off-the- ments and facilities with the best capa- every service being electronically com- record sessions allowed Senators and bilities, the farthest reach, and the fin- municable. Administration officials to grapple est accuracy and resolution. To enable It will be difficult to ever match our with the Academies’ recommendations us to push beyond the frontiers of our populous economic competitors in the and consider how best to implement current knowledge, we should create a quantity of their scientists and engi- them. centralized research infrastructure neers. Ours is an even tougher task: to Last November, Norm Augustine led fund of $500 million annually over the stay far ahead in the quality of our re- a dinner discussion hosted by Senator next 5 years to ensure we have the search and to keep pioneering sci- FRIST with about 30 Senators on the re- equipment necessary for breakthrough entific fields so cutting edge that oth- port’s recommendations right here in scientific discoveries. ers, for the most part, cannot duplicate the Capitol. And then, in December, Third, we must increase the number them. Senators DOMENICI, BINGAMAN, and I of U.S. citizens earning science, engi- We can readily meet this challenge met with President Bush where he gra- neering, and math degrees. We must re- and enjoy a prosperous future, even ciously listened to our ideas. The double our efforts to encourage gifted though these investments in education President was very engaged and knew young American men and women to and research require incurring costs these issues well. pursue these high tech disciplines now for benefits later. Now, as the Senate begins its session which require so much from them and The PACE Act will sustain our vi- for the year, we are introducing this which have so much to offer all of our brant science and technology sector legislation to implement the rec- people. We can do so by providing an- and with it our well-being, health, en- ommendations of the Augustine Re- nually 25,000 competitive under- vironment, and security. port. Next week, when the President graduate scholarships in physical It will encourage education at home addresses the nation in his State of the sciences, engineering, and mathe- and attract talented scientists and en- Union address, it is my hope that he matics, and fund 5,000 new portable gineers from abroad, as well as nurture will make this a focus of the address graduate fellowships in those fields. a business environment that trans- and his remaining three years in office.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00082 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.058 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S227 This bill is all about brainpower and research infrastructure fund of at least tion society, to create new ideas that the relationship of brainpower to good $500 million per year. Provide 30,000 lead to new breakthroughs, new prod- American jobs. scholarships and graduate fellowships ucts and new jobs. The innovations The United States produces more for scientists. Increase federal funding that have the power to save lives, cre- than 25 percent of all the wealth in the for basic research in the physical ate prosperity and protect the home- world (in terms of GDP)—but has only sciences by 10 percent a year for 7 land. The innovation to make America 5 percent of the world’s population. We years. Give American companies a big- safer, stronger and smarter. are a fortunate country indeed. The ger research and development tax cred- Our legislation is called ‘‘Protecting Academies explain this phenomenon in it so they will keep their good jobs America’s Competitive Edge’’ Act or this way: ‘‘. . . as much as 85 percent of here instead of move them offshore. PACE. It is divided into 3 sections: En- measured growth in U.S. income per Create a new agency in the Department ergy, Education and Tax. It calls for: capita is due to technological change.’’ of Energy modeled on the Defense Ad- getting new ideas by doubling Federal This technological change is the re- vanced Research Projects Agency to funding for basic research in the De- sult, in the report’s words, of an out- conduct breakthrough R&D, that will partment of Energy with special atten- pouring ‘‘of well trained people and the lessen our dependence on foreign tion going to physical sciences, engi- steady stream of scientific and techno- sources of energy. neering, math and information logical innovations they produce.’’ Some may wince at the price tag—$9 sciences; getting the best minds with Most of this good fortune comes from billion in the first year, and then it scholarships for future math and the American advantage in brainpower: edges upward over the full seven year science teachers including $20,000 an educated workforce, and our techno- period. I believe the cost is low, rel- scholarships from the National Science logical innovation. The United States ative to the benefits. Maintaining Foundation (NSF) for undergraduate has the finest system of colleges and America’s brainpower advantage will students majoring in math or science universities on earth, attracting more not come on the cheap. along with teacher certification; visa than 500,000 of the brightest foreign This year, one third of State and reform for foreign science and math students. No country has national re- local budgets go to fund education. students so the best and brightest can search laboratories to match ours. More than 50 percent of American stu- stay here, creating a new student visa Americans have won the most Nobel dents have a Federal grant or loan to for doctoral students studying math prizes in science and registered the help pay for college. The Federal Gov- and science so they can stay in the most patents. We have invented elec- ernment spends nearly $30 billion per U.S. longer; and an extension of the R tricity, the computer chip, and the year on research at universities and & D tax credit, doubling the current R internet. another $34 billion to fund 36 national & D credit, from 20 percent to 40 per- As one scientist noted, we don’t have research laboratories. cent, expanding the credit to cover all science and technology because we’re Just last year, Congress spent $85 bil- research—since current law only allows rich. We’re rich because we have lion to fight the war in Iraq, $71 billion credit for energy research. science and technology. for hurricane recovery, and $352 billion Why is this so important? Because a Yet we worry that America may be to finance the national debt. If we fail country that doesn’t innovate, stag- losing its brainpower advantage. Amer- to invest the funds necessary to keep nates. The whole foundation of Amer- ican experts who travel to China, India, our brainpower advantage, we’ll not ican culture and economy is based on Finland, Singapore, Ireland, and else- have an economy capable of producing the concept of discovery and innova- where come home saying, ‘‘Watch out.’’ enough money to pay the bills for war, tion. That’s part of our culture. When The Augustine Report found that we social security, hurricanes, Medicaid, you look at what has made America a are right to be worried: Only 6 percent and debt. superpower, it’s our innovation and our of American college-age students earn The legislation we are introducing technology. We have to look at where degrees in the natural sciences or engi- today has strong bipartisan support. It the new ideas are going to come from neering, trailing students in China and is our hope President Bush will make it that are going to generate the new India and a dozen other countries, a focus of his State of the Union Ad- products for the 21st century. many of which have doubled or tripled dress and of his remaining 3 years in I want America to win the Nobel their degree output over the last dec- office—and that future candidates for prizes and the markets. This legisla- ade. For the cost of one chemist or en- president will make it the center of tion will help to set the framework. It gineer in the United States, a company their campaigns. Aside from our na- will make sure that we’re helping our can hire five chemists in China or 11 tional security, there is no greater young people with scholarships and engineers in India. China is spending challenge than maintaining our brain- new visas, and helping our science billions to recruit the best Chinese sci- power advantage so we can keep our teachers and those working in science entists from American universities to good paying jobs and strengthen our with funding and research opportuni- return home to build up Chinese uni- economy. That is the surest way to ties. We also are forming partnerships versities. keep America on top. with the private sector, and building The report also found signs that we I hope my colleagues will join us in an innovation-friendly government. are not keeping up: U.S. 12th graders this critical effort to protect America’s This is so important to me and I’m performed below the average of 21 competitive edge. going to use my committee responsi- countries on tests of general knowledge Ms. MIKULSKI. Mr. President, I’d bility and my work and expertise in in math. In 2003 only three American like to thank my colleagues: Senator the United States Senate to make it companies ranked among the top 10 re- PETE DOMENICI, Senator JEFF BINGA- happen. Whether it’s my position on cipients of new U.S. patents. Of 120 new MAN and Senator LAMAR ALEXANDER the HELP Committee, working to pass chemical plants being built around the for their effort in moving this issue. I the education piece, or in my seat as world with price tags of $1 billion or am so proud of our great bipartisan an appropriator and Vice Chair on the more, one is in the United States and team. I can’t say enough about the ap- subcommittee that funds Science. I 50 are in China. preciation that many of us in the Sen- will work to make sure that there is To maintain America’s global leader- ate feel about their initiation of the re- money in the federal checkbook to sup- ship in research and development, the port, ‘‘Rising Above the Gathering port these important proposals. Augustine Report made twenty wide- Storm,’’ which is the basis for our leg- ranging and urgent recommendations islation, the PACE Act. By Mr. LUGAR: for U.S. schools, universities, research, America must remain an innovation S. 2200. A bill to establish a United and economic policy that include: Re- economy. This legislation creates the States-Poland parliamentary youth ex- cruit 10,000 new science and math building blocks that we need for a change program, and for other pur- teachers with 4-year scholarships and smarter America. Our Nation is in an poses; to the Committee on Foreign train 250,000 current teachers in sum- amazing race—the race for discovery Relations. mer institutes. Create a new coordi- and new knowledge. The race to remain Mr. LUGAR. Mr. President, I rise nating office to manage a centralized competitive and to foster an innova- today to offer legislation urging the

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00083 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.052 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S228 CONGRESSIONAL RECORD — SENATE January 26, 2006 Administration to develop a United uously stated that Poland welcomed controllers and all other FAA employ- States—Poland Parliamentary Youth the opportunity to be an equal partner ees the opportunity to engage in and Exchange Program. in funding important efforts. conclude negotiations in good faith. The purpose of this exchange pro- I ask my colleagues to support this To diffuse the management-labor gram is to demonstrate to the youth of legislation. tension at the agency and bring the the United States and Poland the bene- FAA together, I am introducing ‘‘The fits of friendly cooperation between the By Mr. OBAMA (for himself, Mr. FAA Fair Labor Management Dispute U.S. and Poland based on common po- INOUYE, Mrs. MURRAY, and Mr. Resolution Act of 2006’’. I am also litical and cultural values. I have long LAUTENBERG): proud to say that Senator INOUYE, the been an active supporter of the Con- S. 2201. A bill to amend title 49, co-chair of the Senate Commerce, gress-Bundestag Exchange program United States Code, to modify the me- Science and Transportation Commit- and am hopeful that this new endeavor diation and implementation require- tees; Senator MURRAY, the ranking will make similarly important lasting ments of section 40122 regarding member on the Transportation Appro- contributions to the U.S.-Polish rela- changes in the Federal Aviation Ad- priations Subcommittee; and Senator tionship. ministration personnel management LAUTENBERG, a member on the Com- As a Rhodes Scholar, I had the oppor- system, and for other purposes; to the merce Committee Subcommittee on tunity to discover international edu- Committee on Commerce, Science, and Transportation, are joining me in this cation at Pembroke College—my first Transportation. effort. trip outside of the United States. The Mr. OBAMA. Mr. President, in the The FAA Fair Labor Management parameters of my imagination ex- hours after the terrorist attacks on Dispute Resolution Act replaces the panded enormously during this time, as 9/11, America’s air traffic controllers FAA Administrator’s arbitrary author- I gained a sense of how large the world rose to meet the tremendous chal- ity with neutral binding arbitration in was, how many talented people there lenges of that day. the case of an impasse in labor-man- were, and how many opportunities one After halting all takeoffs, controllers agement negotiations. In arbitration, could embrace. Student exchange pro- began clearing the skies over America. both labor and management would grams do more than benefit individual Under unprecedented conditions, con- have to make concessions, and both scholars and advance human knowl- trollers guided 4,500 planes carrying would be able to accept the outcome as edge. Such programs expand ties be- 350,000 passengers to safe landings. fair. tween nations, improve international They also rerouted more than 1,100 of We need this legislation now because commerce, encourage cooperative solu- the 4,500 flights within the first 15 min- the FAA Administrator is engaged in tions to global problems, prevent war, utes of the landing order—about one contract negotiations with the agen- and give participants a chance to de- every second—and cleared the skies cy’s two largest groups of workers—the velop a sense of global service and re- over America within 21⁄2 hours. National Air Traffic Controllers Asso- sponsibility. That kind of performance was wholly ciation (NATCA) and Professional Air- Funding a great foreign exchange dependent on the caliber and training ways Systems Specialists (PASS). In program is a sign of both national of the world’s finest air traffic control- both cases, negotiations have been con- pride and national humility. Implicit lers. And as I come to the floor of the tentious. And the FAA’s workers fear in such a program is the view that peo- Senate today, there are hundreds of pi- that the Administrator is not intent on ple from other nations view one’s coun- lots flying commercial airplanes under reaching fair, voluntary agreements try and educational system as a beacon an air traffic controller’s guidance. given her previous negotiations. In- of knowledge—as a place where inter- Each and every day, the lives of thou- deed, the Administrator has already national scholars would want to study sands of people are in the hands of each used her authority to impose wages and live. But it is also an admission and every air traffic controller. and working conditions without arbi- that a nation does not have all the an- Because what they do is vital to our tration or agreement on NATCA’s 11 swers—that our national understanding safety, I became very concerned by a non-air traffic controller bargaining of the world is incomplete. It is an ad- letter I received from Illinois air traf- units, and she stands at impasse with mission that we are just a part of a fic controller Michael Hannigan last four of PASS’s five bargaining units. much larger world that has intellec- December. He wrote that ‘‘the air traf- The Administrator has made three tual, scientific, and moral wisdom that fic controllers, who work aircraft ev- arguments in defense of her actions: 1. we need to learn. eryday, often six days a week, are not the FAA needs the authority ‘‘to oper- The United States and Poland have being allowed to negotiate in good ate more like a business’’; 2. air traffic enjoyed close bilateral relations since faith with the Federal Aviation Admin- controller pay is ‘‘inappropriate given the end of the Cold War. Most recently, istration.’’ And he asked for me to help the financial circumstances of the air- Poland has been a strong supporter of ‘‘the hard working Federal employees line industry the system serves’’; and 3. efforts led by the United States to that want the protections as a labor changing the law to send an impasse to combat global terrorism, and has con- union that they should have a right to binding arbitration would essentially tributed troops to and led coalitions in bargain for.’’ ‘‘change the rules of the game during both Afghanistan and Iraq. Poland also What was clear in Michael’s plea was halftime.’’ cooperates closely with the United the sense that he and his colleagues But the agency’s employees point out States on such issues as democratiza- felt that they were being treated un- that the agency is not a business driv- tion, human rights, regional coopera- fairly. I looked into it and came to the en to cut costs in pursuit of profit, it is tion in Eastern Europe, and reform of conclusion that if we did not restore a a public agency with no margin for the United Nations. As a member of fair negotiation procedure, it would error. They also argue that the na- the North Atlantic Treaty Organiza- threaten agency morale and effective- tion’s air safety should not depend on tion, NATO, and the European Union, ness. how well or poorly the airlines are EU, Poland has demonstrated its com- The problem is this: lower courts doing financially. And, if the rules are mitment to democratic values and is a have determined that the FAA Admin- unfair, the employees argue they role model in its region. istrator currently has the extraor- should be changed before negotiations I believe that it is important to in- dinary authority to impose wages and conclude. vest in the youth of the United States working conditions on her workers Regardless of the merits of each and Poland in order to strengthen long- without arbitration. In order to do side’s positions, if the Administrator is lasting ties between both societies. that, she merely has to declare an im- able to impose her chosen conditions After receiving for many years inter- passe in negotiations and if Congress on air traffic controllers, it will have national and U.S. financial assistance, does not set everything else aside and two negative effects on the agency: 1. Poland is now determined to invest its stop her from imposing her terms and it will lead to an erosion of talent at own resources toward funding a U.S.- conditions within 60 days, the Adminis- the agency with vital, retirement-eligi- Poland exchange program. To this end, trator can go ahead and act unilater- ble air traffic controllers interpreting the Polish Foreign Minister unambig- ally. That authority denies air traffic such agency action as an invitation to

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00084 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.061 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S229 retire; and 2. it will make recruiting activities that undermine public con- or State or local bar associations for the needed replacement employees that fidence, I withheld these provisions benefit of the bar association membership; much more difficult. from a judicial pay raise bill. I had or I recognize that negotiations between hoped that the Federal judiciary would ‘‘(iii) seminars of any length conducted by, and on the campus of an institute of higher the Administrator and the air traffic engage in self-regulation on these education or by national bar associations or controllers are difficult. However, it is timely and substantive ethical issues. State or local bar associations, where a in the best interest of the agency and Unfortunately, recent press reports judge is a presenter and at which judges con- public safety to have management and show continued appearances of impro- stitute less than 25 percent of the partici- labor cooperate in contract negotia- priety, even by a member of the Su- pants; tions and if that is impossible, then no preme Court. This legislation does not ‘‘(3) ‘national bar association’ means a na- one side should be able to impose its prohibit judges and justices from at- tional organization that is open to general views on the other. Only neutral arbi- tending educational seminars. Instead, membership to all members of the bar; and ‘‘(4) ‘State or local bar association’ means tration can produce a fair outcome it simply requires them to learn and a State or local organization that is open to that the entire organization can ac- disclose the private sponsors of the general membership to all members of the cept. seminars and make that information bar in the specified geographic region. More than 2,900 air traffic controllers public. Then, they would be allowed to ‘‘(b) There is established within the United will be eligible to retire this year, and attend the seminars, but at the court’s States Treasury a fund to be known as the 7,100 controllers could leave the agency expense, instead of having special in- ‘Judicial Education Fund’ (in this section re- within the next nine years. Meeting ferred to as the ‘Fund’). terests pick up their tabs. ‘‘(c) Amounts in the Fund may be made this management challenge will re- Another issue that threatens to un- available for the payment of necessary ex- quire cooperation between labor and dermine confidence in our judicial im- penses, including reasonable expenditures for management. Moreover, rising tension partiality was highlighted at the re- transportation, food, lodging, private judi- between the FAA Administrator and cent hearings for Judge Alito. Some cial seminar fees and materials, incurred by FAA employees threatens this vital judges fail to monitor their financial a judge or justice in attending a private judi- agency’s effectiveness at every level holdings so that they can properly cial seminar approved by the Board of the and, as a result, threatens the safety of recuse themselves from cases where Federal Judicial Center. Necessary expenses shall not include expenditures for rec- passengers. there may be a conflict of interest. One reational activities or entertainment other Again, the legislation we are intro- way to be sure that the recusal laws than that provided to all attendees as an in- ducing today would encourage both Congress enacted are being followed by tegral part of the private judicial seminar. sides in all FAA labor-management ne- all Federal judges is to allow more Any payment from the Fund shall be ap- gotiations to reach a voluntary agree- transparency of a judge’s financial con- proved by the Board. ment and in the case of impasse, it flicts. This legislation contains a pro- ‘‘(d) The Board may approve a private judi- would allow the FAA to move forward vision to improve the public’s access to cial seminar after submission of information by the sponsor of that private judicial sem- after binding arbitration, bring its the recusal lists that all judges keep inar that includes— workers together, and focus on other within their chambers or clerks’ of- ‘‘(1) the content of the private judicial challenges because no one side will fices. seminar (including a list of presenters, top- have had arbitrary authority. Because the public’s trust is at stake, ics, and course materials); and The FAA’s employees are dedicated, it is important to require that private ‘‘(2) the litigation activities of the sponsor hard working public servants respon- seminar providers fully disclose the and the presenters at the private judicial sible for helping ensure the safety of litigation interests of their sponsors seminar (including the litigation activities the flying public. It is stressful, impor- and to improve access to judicial con- of the employer of each presenter) on the tant work. We must value that work flicts. The American people deserve a topic related to those addressed at the pri- vate judicial seminar. and treat them fairly. Federal judiciary that is beyond re- ‘‘(e) If the Board approves a private judi- proach—in appearance, and otherwise. cial seminar, the Board shall make the infor- By Mr. LEAHY (for himself, Mr. The Fair and Independent Judiciary mation submitted under subsection (d) relat- KERRY, and Mr. FEINGOLD): Act seeks to ensure continued public ing to the private judicial seminar available S. 2202. A bill to provide for ethics re- confidence in our Federal courts. I ask to judges and the public by posting the infor- form of the Federal judiciary and to in- unanimous consent that the text of the mation on the Internet. ‘‘(f) The Judicial Conference shall promul- still greater public confidence in the bill be printed in the RECORD. Federal courts; to the Committee on gate guidelines to ensure that the Board There being no objection, the text of only approves private judicial seminars that the Judiciary. the bill was ordered to be printed in are conducted in a manner so as to maintain Mr. LEAHY. Mr. President, I am the RECORD, as follows. the public’s confidence in an unbiased and pleased to introduce the Fair and Inde- S. 2202 fair-minded judiciary. pendent Judiciary Act of 2006 because Be it enacted by the Senate and House of ‘‘(g) There are authorized to be appro- ensuring a fair and independent judici- Representatives of the United States of America priated for deposit in the Fund $2,000,000 for ary is critical to the system of checks in Congress assembled, each of fiscal years 2006, 2007, and 2008, to re- main available until expended.’’. and balances established in our Con- SECTION 1. SHORT TITLE. (b) TECHNICAL AND CONFORMING AMEND- This Act may be cited as the ‘‘Federal Ju- stitution. This legislation seeks to pre- MENT.—The table of sections for chapter 42 of serve the public confidence that our diciary Ethics Reform Act of 2006’’. title 28, United States Code, is amended by Federal courts enjoy, and that our SEC. 2. JUDICIAL EDUCATION FUND. adding at the end the following: (a) ESTABLISHMENT.—Chapter 42 of title 28, courts need to adequately fulfill their ‘‘630. Judicial Education Fund’’. United States Code, is amended by adding at constitutional role in our system. Rev- SEC. 3. PRIVATE JUDICIAL SEMINAR GIFTS PRO- the end the following: elations that judges and justices are re- HIBITED. ceiving gifts from parties that may ap- ‘‘§ 630. Judicial Education Fund (a) DEFINITIONS.—In this section, the pear before them or have a financial in- ‘‘(a) In this section, the term— term— terest in a litigating party undermine ‘‘(1) ‘institution of higher education’ has (1) ‘‘institution of higher education’’ has the meaning given under section 101(a) of the the meaning given under section 101(a) of the the public’s trust. Higher Education Act of 1965 (20 U.S.C. Higher Education Act of 1965 (20 U.S.C. For the past 4 years, editorial boards 1001(a)); 1001(a)); across the country have called our at- ‘‘(2) ‘private judicial seminar’— (2) ‘‘private judicial seminar’’— tention to the appearance of impro- ‘‘(A) means a seminar, symposia, panel dis- (A) means a seminar, symposia, panel dis- priety that occurs when Federal judges cussion, course, or a similar event that pro- cussion, course, or a similar event that pro- accept gifts and attend lavish private vides continuing legal education to judges; vides continuing legal education to judges; seminars sponsored by well-heeled cor- and and porations. I have proposed similar leg- ‘‘(B) does not include— (B) does not include— ‘‘(i) seminars that last 1 day or less and are (i) seminars that last 1 day or less and are islation in previous Congresses to ad- conducted by, and on the campus of, an insti- conducted by, and on the campus of, an insti- dress the problem of private judicial tute of higher education; tute of higher education; seminars. Last year, despite my ongo- ‘‘(ii) seminars that last 1 day or less and (ii) seminars that last 1 day or less and are ing concerns about reports of judicial are conducted by national bar associations conducted by national bar associations or

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00085 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.063 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S230 CONGRESSIONAL RECORD — SENATE January 26, 2006 State or local bar associations for the ben- These are beneficiaries with serious erage from a retiree drug plan, and efit of the bar association membership; or mental illnesses who have been sta- make sure that States and low income (iii) seminars of any length conducted by, bilized on medications, and people with beneficiaries are reimbursed for exces- and on the campus of an institute of higher developmental and physical disabilities sive costs they have been forced to education or by national bar associations or shoulder by the inept implementation State or local bar associations, where a who have little or no incomes and no judge is a presenter and at which judges con- way to afford the medicines that they of the new benefit. stitute less than 25 percent of the partici- depend on. We owe it to our seniors and disabled pants. The bill I am introducing will fix this Americans to get this right. And I will (3) ‘‘national bar association’’ means a na- problem by waiving copayments for keep fighting to ensure that we do. tional organization that is open to general this group of vulnerable beneficiaries f membership to all members of the bar; and and reimbursing them for any copay- SUBMITTED RESOLUTIONS (4) ‘‘State or local bar association’’ means ments they have already been forced to a State or local organization that is open to general membership to all members of the shoulder. bar in the specified geographic region. This is just one of so many problems SENATE RESOLUTION 354—HON- (b) IN GENERAL.—Not later than 240 days we have seen plaguing this program. ORING THE VALUABLE CON- after the date of enactment of this Act, the The first 26 days of this program have TRIBUTIONS OF CATHOLIC Judicial Conference of the United States been a disaster for far too many seniors SCHOOLS IN THE UNITED shall promulgate regulations to apply sec- and disabled across New York and STATES tion 7353(a) of title 5, United States Code, to across the country. prohibit the solicitation or acceptance of Mr. VITTER submitted the following We have heard reports from our poor- resolution; which was referred to the anything of value in connection with a pri- est seniors, who were being charged vate judicial seminar. Committee on Health, Education, (c) EXCEPTION.—The prohibition under the hundreds of dollars for drugs. We have Labor, and Pensions: heard reports of disabled individuals regulations promulgated under subsection S. RES. 354 (b) shall not apply if— asked to provide doctor’s notes certi- Whereas Catholic schools in the United (1) the judge participates in a private judi- fying a need for their medications and States have received international acclaim cial seminar as a speaker, panel participant, of beneficiaries leaving pharmacies for academic excellence while providing stu- or otherwise presents information; without the drugs they depend on to dents with lessons that extend far beyond (2) Federal judges are not the primary au- keep them healthy. the classroom; dience at the private judicial seminar; and Whereas Catholic schools present a broad (3) the thing of value accepted is— As a result of problems with com- curriculum that emphasizes the lifelong de- (A) reimbursement from the private judi- puter systems, phone lines, and the in- velopment of moral, intellectual, physical, cial seminar sponsor of reasonable transpor- ability of Medicare and private plans and social values in the young people of the tation, food, or lodging expenses on any day to provide correct information to those United States; on which the judge speaks, participates, or on the front lines of care, millions of Whereas Catholic schools in the United presents information, as applicable; people around the country have faced States today educate 2,420,590 students and (B) attendance at the private judicial sem- problems receiving this new benefit. maintain a student-to-teacher ratio of 15 to inar on any day on which the judge speaks, I am working on all fronts to help 1; participates, or presents information, as ap- Medicare beneficiaries weather this Whereas the faculty members of Catholic plicable; or schools teach a highly diverse body of stu- (C) anything excluded from the definition transition. Before this program went dents; of a gift under regulations of the Judicial into effect, it was clear that those du- Whereas more than 27.1 percent of school Conference of the United States under sec- ally eligible for Medicare and Medicaid, children enrolled in Catholic schools are mi- tions 7351 and 7353 of title 5, United States our poorest and most vulnerable sen- norities, and more than 13.6 percent are non- Code, as in effect on the date of enactment of iors and disabled, would have a par- Catholics; this Act. ticular challenge navigating this tran- Whereas Catholic schools saved the United SEC. 4. RECUSAL LISTS. sition. I was very concerned that many States $19,000,000,000 in educational funding Section 455 of title 28, United States Code, these Medicare recipients would walk during fiscal year 2005; is amended by adding at the end the fol- up to their pharmacy counters on Jan- Whereas Catholic schools produce students lowing: strongly dedicated to their faith, values, ‘‘(g)(1) Each justice, judge, and magistrate uary 1 and be unable to get their pre- families, and communities by providing an of the United States shall maintain a list of scriptions filled. intellectually stimulating environment rich all financial interests that would require dis- In anticipation of these problems, I in spiritual, character, and moral develop- qualification under subsection (b)(4). introduced legislation in December to ment; and ‘‘(2) Each list maintained under paragraph keep these Medicare recipients from (1) shall be made available to the public at Whereas in the 1972 pastoral message con- falling through the cracks by stepping cerning Catholic education, the National the office of the clerk for the court at which up outreach and education to phar- a justice, judge, or magistrate is assigned.’’ Conference of Catholic Bishops stated, ‘‘Edu- macists and providing reimbursement cation is one of the most important ways by By Mrs. CLINTON (for herself to pharmacists who are charged a which the Church fulfills its commitment to the dignity of the person and building of and Mr. NELSON of Florida): transaction fee to access beneficiary S. 2203. A bill to amend title XVIII of information through Medicare. I also community. Community is central to edu- cosponsored legislation to give Medi- cation ministry, both as a necessary condi- the Social Security Act to eliminate tion and an ardently desired goal. The edu- cost-sharing under part D of such title care beneficiaries more time to enroll cational efforts of the Church, therefore, for certain full-benefit dual eligible in- in the new program. must be directed to forming persons-in-com- dividuals; to the Committee on Fi- And I issued a resource guide, now munity; for the education of the individual nance. available in both English and Spanish, Christian is important not only to his soli- Mrs. CLINTON. Mr. President, today to help New Yorkers navigate this new tary destiny, but also the destinies of the I rise to introduce legislation to ad- program. To date more than 75,000 cop- many communities in which he lives.’’: Now, dress yet another serious flaw in the ies of the guide have been distributed. therefore, be it Since the new program went into ef- Resolved, That the Senate— Medicare prescription drug benefit that (1) supports the goals of Catholic Schools has come to light. fect, I have repeatedly urged the Bush Week, an event cosponsored by the National On January 1, the new Medicare pre- administration to address the problems Catholic Educational Association and the scription drug benefit went into effect. plaguing this program. And last week, United States Conference of Catholic Overnight, millions of seniors and dis- I introduced comprehensive legislation Bishops that recognizes the vital contribu- abled Americans found themselves along with several of my Senate col- tions of thousands of Catholic elementary thrown into a confusing and complex leagues, that includes my bill to help and secondary schools in the United States; transition. pharmacists help their customers, and and Some of our poorest and most vulner- makes the other fixes I have been call- (2) congratulates Catholic schools, stu- dents, parents, and teachers across the able beneficiaries, those in assisted liv- ing for: provisions to improve outreach United States for their ongoing contribu- ing facilities, have found themselves and education, fix problems with drug tions to education, and for the vital role suddenly forced to produce copayments plans transition programs, protect the they play in promoting and ensuring a to get the medications they need. benefits of seniors who also have cov- brighter, stronger future for this Nation.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00086 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.051 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S231 SENATE RESOLUTION 355—HON- therefore the element from which resources gional Training Institute helping to ORING THE SERVICE OF THE NA- should not be cut: Now, therefore, be it train the Afghan National Army. Their TIONAL GUARD AND REQUEST- Resolved, That the Senate— Adjutant General, Major General Roger (1) supports the vital Federal and State ING CONSULTATION BY THE DE- missions of the Army National Guard of the L. Lempke, leads the Nebraska Na- PARTMENT OF DEFENSE WITH United States and the Air National Guard of tional Guard with great pride and dis- CONGRESS AND THE CHIEF EX- the United States, including support of ongo- tinction. He is a credit to the National ECUTIVE OFFICERS OF THE ing missions in Iraq and Afghanistan and Guard, Nebraska and the Nation he STATES PRIOR TO OFFERING homeland defense and disaster assistance represents. PROPOSALS TO CHANGE THE NA- and relief efforts; The Guard is unique in that it’s a TIONAL GUARD FORCE STRUC- (2) recommends that the Department of shared resource between the Governors TURE Defense propose fully funding the equipment and the President. The National Guard needs of the National Guard; is the first to respond to domestic Mr. NELSON of Nebraska (for him- (3) believes that the Department of Defense emergencies which range from natural self, Mr. GRAHAM, Mr. ALLEN, Mr. TAL- should, as soon as possible, consult with the disasters to homeland defense. Ninety ENT, Mrs. DOLE, Mr. DEWINE, Ms. MUR- chief executive officers of the States, as well percent of the troops on the ground in KOWSKI, Ms. SNOWE, Mr. THUNE, Mr. as Congress, on any proposed changes to the National Guard force structure; Louisiana and Mississippi responding ISAKSON, Ms. LANDRIEU, Mr. NELSON of (4) requests that any plan of the Depart- to Hurricane Katrina were members of Florida, Mr. HARKIN, Mr. DORGAN, Mr. ment of Defense regarding the National the National Guard. LAUTENBERG, Mr. BINGAMAN, Mr. Guard force structure take into account the Most Nebraskans will recall the bliz- AKAKA, Mr. BAUCUS, Mrs. CLINTON, Mr. role of the National Guard role in homeland zard that roared out of Colorado in Oc- KOHL, Ms. MIKULSKI, Mr. BAYH, Ms. defense and other State missions as defined tober 1997 and slammed into Nebraska CANTWELL, Mr. PRYOR, Mr. SALAZAR, by the chief executive officers of the States; causing extensive damage that would Mr. LIEBERMAN, Mr. BIDEN, Mr. (5) requests that the Department of De- take weeks to clean up. It was fall and CONRAD, Mr. KENNEDY, Mr. FEINGOLD, fense prepare budget projections that detail cost savings from any changes in National most trees still had their leaves. Mr. MENENDEZ, Mr. JOHNSON, and Mr. Guard force structure, as well as projected Branches snapped under the weight of DURBIN) submitted the following reso- costs in the event large personnel increases more than a foot of heavy, wet snow lution; which was referred to the Com- are necessary to respond to a national emer- and ice. The resulting power outages mittees on Armed Services: gency; and left 125,000 Nebraskans without elec- S. RES. 355 (6) requests that the Department of De- fense assure Congress and the chief executive tricity for days and even weeks. Whereas the Army National Guard and Air As governor of Nebraska then, it was National Guard of the United States, rep- officers of the States that potential changes in the National Guard force structure will the responsibility of my office to de- resenting all 50 States, Guam, Puerto Rico, clare a state of emergency which acti- the United States Virgin Islands, and the not impact the safety and security of the District of Columbia, have played an indis- United States people. vated the National Guard to help in pensable role in the defense of our country; Mr. NELSON of Nebraska. Mr. Presi- clean up and rescue operations. The Whereas during one phase of the Global dent, I rise today to speak on behalf of Guard responded with troops and War on Terrorism, Army National Guard sol- a resolution I am submitting with Sen- equipment that made the effort pro- diers comprised nearly half of the United ator GRAHAM and 31 other senators, ceed smoothly and efficiently. States combat forces in Iraq; many of whom are members of the Na- The Guard handles State missions Whereas National Guard personnel are cur- tional Guard Caucus like me and Sen- like this every year and every season rently deployed in Afghanistan, Bosnia, while experiencing critical equipment Kosovo, and more than 40 other countries ator GRAHAM. I am also very proud to around the world; note that the National Guard Associa- shortages, especially vehicle and radio Whereas 90 percent of the troops on the tion of the United States has endorsed shortages. Congress added $1 billion ground in Louisiana and Mississippi respond- our resolution. dollars for new equipment for the ing to Hurricane Katrina were members of This resolution honors the service of Guard last December, but that’s only a the National Guard; the National Guard and requests con- small portion of what is needed to fully Whereas while performing these critical sultation by the Department of Defense fund the equipment needs of the Guard. missions, the National Guard continues to with the Congress and our Nation’s And deployments, especially to Iraq experience significant equipment shortages, and Afghanistan, have stretched the especially vehicle and radio shortages; Governors prior to offering proposals Whereas members of the National Guard that could change the force structure Guard thin. are not ‘‘weekend warriors’’, but citizen-sol- of the Guard. In my opinion, it could It’s in this environment that the De- diers and airmen who serve full-time when not be timelier or more important. partment of Defense will release the their country needs them to do so; We all know the tremendous sac- Quadrennial Defense Review next Whereas the National Guard is a resource rifices the National Guard is making month. The QDR review could impact shared by the chief executive officers of the around the globe today. The Army Na- the future of the Guard. The Army and States and the President; tional Guard and the Air National the Air Force may recommend changes Whereas the National Guard is America’s Guard represent 50 states, Guam, Puer- in the force structure which will im- militia; pact Army National Guard armories Whereas deployment to fight terrorism on to Rico, the U.S. Virgin Islands and the two fronts overseas, while protecting our District of Columbia and they are cur- and Air National Guard wings through- homeland, has stretched the National Guard rently hard at work in Iraq, Afghani- out the country. thin; stan, Bosnia, Kosovo and over 40 other Reductions in the force structure Whereas the future of the National Guard countries around the world. combined with a lack of adequate could be determined by the Quadrennial De- Long gone is the phrase ‘‘weekend equipment for the National Guard fense Review (QDR) currently underway; warrior’’. The Guard is made up of cit- threaten its missions and ability to re- Whereas the Army and Air Force could rec- izen-soldiers and airmen who serve spond in an emergency. Homeland de- ommend changes in the force structure of full-time when their country calls on fense is the most important mission of the National Guard; Whereas reductions in force structure them. Since September 11, they have the Department of Defense and the Na- could impact numerous Army National responded and represented America’s tional Guard is the force best suited to Guard armories and Air National Guard militia with great honor. defend the homeland. It’s the very last wings; Currently, the Nebraska National place resources should be cut from. Whereas reductions in force structure com- Guard has 364 personnel in Iraq. Their Unfortunately, media reports indi- bined with the lack of adequate equipment units are the 1-167th Cavalry which cate that to pay for modernization pro- for the National Guard threaten its capacity provides combat support to the Ma- grams, the Department of Defense will to discharge its missions and its ability to rines, the 67 Area Support Group which propose changing the Guard’s force respond in emergencies; is responsible for command and control structure. In an effort to begin a dia- Whereas homeland defense is the most im- portant mission of the Department of De- and the 189th Truck Company which logue with DOD we are offering this fense; and handles convoy operations. In Afghani- resolution which honors the National Whereas the National Guard is the force stan, there are 65 National Guard mem- Guard and recommends that DOD: best suited to defend the homeland and bers of the 2nd Battalion at the Re- Fully funding the equipment needs of

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00087 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.066 S26JAPT1 jcorcoran on PROD1PC62 with SENATE S232 CONGRESSIONAL RECORD — SENATE January 26, 2006 the National Guard; requests that the by invitation only. However, those January 31, at a time to be determined Department of Defense should, as soon wishing to submit written testimony by the majority leader, after consulta- as possible, consult with Governors, as for the hearing record should send two tion with the Democratic leader, the well as Congress, on any proposed copies of their testimony to the Com- Senate proceed to executive session changes to the National Guard force mittee on Energy and Natural Re- and the consideration en bloc of cal- structure; requests that any plan of the sources, United States Senate, Wash- endar Nos. 440 and 441, the nomination Department of Defense regarding the ington, DC 20510–6150. of Ben Bernanke to be a member and National Guard force structure take For further information, please con- Chairman of the Federal Reserve; fur- into account the role of the National tact Lisa Epifani or Shannon Ewan. ther, that there be 30 minutes under Guard in homeland defense and other SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS the control of Senator BUNNING and 60 state mission defined by Governors; re- Mr. CRAIG. Mr. President, I would minutes equally divided between the quests the Department of Defense pro- like to announce for the information of chairman and ranking member of the vide budget projections that detail cost the Senate and the public that a hear- Banking Committee. savings from any changes in National ing has been scheduled before the Sub- I further ask unanimous consent that Guard force structure, as well as pro- committee on Public Lands and For- following the use or yielding back of jected costs in the event large per- ests. time, the Senate proceed to consecu- sonnel increases are necessary to re- The hearing will be held on Wednes- tive votes on the confirmation of cal- spond to a national emergency; and re- day, February 15, 2006, at 2:30 p.m. in endar Nos. 440 and 411, and that fol- quests the Department of Defense as- Room SD–366 of the Dirksen Senate Of- lowing the votes the President be im- sure Congress, and Governors, that po- fice Building. mediately notified of the Senate’s ac- The purpose of the hearing is to re- tential force structure changes will not tion, and then the Senate resume legis- impact the safety and security of the view the progress made on the develop- ment of interim and long-term plans lative session. American people. The PRESIDING OFFICER. Without for use of fire retardant aircraft in Fed- Every debate about the defense budg- objection, it is so ordered. et should be held in the context of eral wildfire suppression operations. f long-term national security goals. I Because of the limited time available look forward to engaging with the De- for the hearing, witnesses may testify ALITO NOMINATION by invitation only. However, those partment on their QDR proposals for Mr. FRIST. Mr. President, earlier the future of America’s militia, the Na- wishing to submit written testimony for the hearing record should send two today I filed a cloture motion on Judge tional Guard, and I urge adoption of Alito’s nomination in order to bring to this resolution by the full Senate. copies of their testimony, to the Com- mittee on Energy and Natural Re- close in the not too distant future this f sources, United States Senate, Wash- outstanding nominee’s confirmation NOTICES OF HEARINGS/MEETINGS ington, DC 20510–6150. process. For further information, please con- The cloture vote is scheduled, as my COMMITTEE ON ENERGY AND NATURAL colleagues know, for 4:30 in the after- RESOURCES tact Frank Gladics or Kristina Rolph of the Committee staff. noon on Monday. If cloture is in- Mr. DOMENICI. Mr. President, I voked—which I believe it will be—we would like to announce for the infor- COMMITTEE ON INDIAN AFFAIRS Mr. McCAIN. Mr. President, I would will have a final up-or-down vote on mation of the Senate and the public confirmation on Tuesday at 11 o’clock that a hearing has been scheduled be- like to announce that the Committee in the morning. fore the Committee on Energy and Nat- on Indian Affairs will meet on Wednes- day, February 1, 2006, at 9:30 a.m. in While I believe the Senate has a re- ural Resources to consider the Presi- sponsibility to have a thorough debate, dent’s Proposed Budget for Fiscal Year Room 485 of the Russell Senate Office a robust debate on every judicial nomi- 2007 for the Department of Energy. Building to conduct an Oversight Hear- nation, I am disappointed and it is The hearing will be held on Thurs- ing on Off-Reservation Gaming: The day, February 9 at 10 a.m. in Room SD– Process for Considering Gaming Appli- time to end the delay tactics which we 366 of the Dirksen Senate Office Build- cations lands eligible for gaming pur- have seen play out over the last several ing. suant to the Indian Gaming Regulatory weeks, delay tactics my colleagues on Because of the limited time available Act. the other side of the aisle are using to for the hearing, witnesses may testify Those wishing additional information obstruct this nominee. Thus, that is by invitation only. However, those may contact the Indian Affairs Com- why I filed cloture to say enough is wishing to submit written testimony mittee. enough. for the hearing record should send two f It has been 87 days since the Presi- dent announced Judge Alito’s nomina- copies of their testimony to the Com- AUTHORITIES FOR COMMITTEES tion. I should say, by the way, that it mittee on Energy and Natural Re- TO MEET sources, United States Senate, SD–364 took an average of 63 days from an- SELECT COMMITTEE ON INTELLIGENCE Dirksen Senate Office Building, Wash- nouncement to confirmation of both of Mr. TALENT. Mr. President, I ask President Clinton’s nominees. ington, DC 20510–6150. unanimous consent that the Select For further information, please con- When Judge Alito was nominated on Committee on Intelligence be author- tact Elizabeth Abrams. October 31, or shortly after that— ized to meet during the session of the maybe even that day—Chairman SPEC- COMMITTEE ON ENERGY AND NATURAL Senate on January 26, 2005 at 2:30 p.m. RESOURCES TER and I worked in good faith with to hold a closed briefing. Mr. DOMENICI. Mr. President, I Senator REID and Senator LEAHY for a The PRESIDING OFFICER. Without timeline on confirmation projecting would like to announce for the infor- objection, it is so ordered. mation of the Senate and the public out where we would be. We agreed to that a hearing has been scheduled be- f give Judge Alito a fair up-or-down vote fore the Committee on Energy and Nat- PRIVILEGES OF THE FLOOR after plenty of time for hearings and ural Resources. Mr. HARKIN. Mr. President, I ask preparations for the hearings on Janu- The hearing will be held on Thurs- unanimous consent that Yoni Cohen of ary 20. We agreed to consider the nomi- day, February 9, 2006 at 2:30 p.m. in my staff be granted floor privileges for nation—it wasn’t our preference—after Room SD–366 of the Dirksen Senate Of- the duration of today’s session. the holidays. We also agreed—again it fice Building. The PRESIDING OFFICER. Without wasn’t our preference—to the Demo- The purpose of the hearing is to dis- objection, it is so ordered. cratic schedules not to begin hearings cuss the Energy Information Adminis- f the week we preferred, January 2. tration’s 2006 Annual Energy Outlook All of these accommodations were on trends and issues affecting the UNANIMOUS-CONSENT AGREE- made with the expectation that Demo- United States’ energy market. MENT—EXECUTIVE CALENDAR crats on the Judiciary Committee, Because of the limited time available Mr. FRIST. Mr. President, I ask once they had plenty of time for their for the hearing, witnesses may testify unanimous consent that on Tuesday, hearings themselves, would not delay

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00088 Fmt 4637 Sfmt 0634 E:\CR\FM\A26JA6.065 S26JAPT1 jcorcoran on PROD1PC62 with SENATE January 26, 2006 CONGRESSIONAL RECORD — SENATE S233 the vote coming out of the committee, file cloture, to bring closure to this ate completes its business today, it which would set back the schedule yet process. stand in adjournment until 12 noon on a week later, which indeed is what hap- Throughout the entire process I have Friday, January 27; I further ask that pened. Judge Alito was responsive. He been very consistent: These judicial following the prayer and pledge, the was forthcoming. He answered more nominees deserve, in terms of just dig- morning hour be deemed expired, the than 650 questions. Again, when people nity, but also it is our responsibility, Journal of proceedings be approved to hear these numbers, what is the per- they deserve a fair up-or-down vote. I date, the time for the two leaders be spective? That is more than double the should add, also, a recent poll shows reserved, and the Senate then proceed number of questions that Justice Gins- that a majority of Americans believe to executive session and resume consid- burg or Justice Breyer answered during Judge Alito should be confirmed. So, eration of the nomination of Samuel their entire confirmation hearings. tonight, I can say not with absolute Alito to be an Associate Justice of the But still, the Democrats delayed certainty but with as much certainty Supreme Court of the United States. Judge Alito’s vote coming out of com- you can get around this place that on The PRESIDING OFFICER. Without mittee. Yes, it is within the rules. All Tuesday Judge Alito will get that fair objection, it is so ordered. of this is within the rules. But we have up-or-down vote. seen this steady delay, postponement, I mentioned the recent poll. That is f obstruction. Luckily, the process con- the general sense people get as we go back to our communities talking about tinues forward. That is where we are PROGRAM the hearing process and the confirma- today. Mr. FRIST. To reiterate, today we tion process. They broadly support this We are now scheduled to have a vote filed a cloture motion on the nomina- highly qualified individual. The list on January 31. That is the agreement tion of Judge Alito. The cloture vote goes on and on in terms of his quali- the Democrat leader and I agreed to in fications, his 15 years on the Federal will be 4:30 on Monday. We will have representing our caucuses earlier courts, his highest rating with the some more debate time on Monday. I today. That means we will have had a ABA, the testimony from some of his believe we have provided plenty of time total of 5 days of floor activity. It is 8 colleagues in the hearing, now 2 weeks for debate on the nomination. I hope o’clock tonight. We have had speech ago, all of which underline his modest and expect cloture will be invoked and and debate over the course of the day, judicial temperament, his integrity, that we will proceed to a vote on the and we will have debate tomorrow. As his character. The polls show that the confirmation of Samuel Alito on Tues- everyone is well aware, we are given American people have spoken in a fair- day at 11 a.m. plenty of time in the Senate. We could ly dramatic way to us as we go back to f stay here later tonight, tomorrow, to- our States. morrow night. I said we will plow I agree with the American people. ADJOURNMENT UNTIL TOMORROW through Saturday until we get this Next Tuesday, a bipartisan majority done. It will end up being 5 days in will vote to confirm Judge Alito as Mr. FRIST. If there is no further terms of floor action. Justice Alito. business to come before the Senate, I Just to put that in perspective, for ask unanimous consent that the Sen- f all of the sitting members on the Su- ate stand in adjournment under the preme Court today, only one other had ORDERS FOR FRIDAY, JANUARY previous order. 5 days of floor debate on a nominee. 27, 2006 There being no objection, the Senate, Again, we are pushing the limits once Mr. FRIST. Mr. President, I ask at 8:05 p.m., adjourned until Friday, again. That is why we came forward to unanimous consent that when the Sen- January 27, 2006, at 12 noon.

VerDate Aug 31 2005 02:48 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00089 Fmt 4637 Sfmt 0634 E:\CR\FM\G26JA6.102 S26JAPT1 jcorcoran on PROD1PC62 with SENATE Thursday, January 26, 2006 Daily Digest Senate Bernanke Nomination—Agreement: A unani- Chamber Action mous-consent agreement was reached providing that Routine Proceedings, pages S145–S233 on Tuesday, January 31, 2006, at a time determined Measures Introduced: Nine bills and two resolu- by the Majority Leader, after consultation with the tions were introduced, as follows: S. 2197–2205, and Democratic Leader, Senate begin consideration of the S. Res. 354–355. Pages S210–11 nominations of Ben S. Bernanke, of New Jersey, to Measures Reported: be a Member of the Board of Governors of the Fed- S. 1708, to modify requirements relating to the eral Reserve System, and to be Chairman of the authority of the Administrator of General Services to Board of Governors of the Federal Reserve System; enter into emergency leases during major disasters that there be 30 minutes under the control of Sen- and other emergencies. (S. Rept. No. 109–214) ator Bunning, and 60 minutes equally divided be- Page S210 tween the Chairman and Ranking Member of the Committee on Banking, Housing, and Urban Affairs; Supreme Court Nomination: Senate continued and that following the use, or yielding back, of time, consideration of the nomination of Samuel A. Alito, that the Senate vote on confirmation of the nomina- Jr., of New Jersey, to be an Associate Justice of the tions. Page S232 Supreme Court of the United States. Pages S145–S207 A motion was entered to close further debate on Executive Communications: Pages S209–10 the nomination and, notwithstanding the provisions Additional Cosponsors: Pages S211–12 of Rule XXII of the Standing Rules of the Senate, and pursuant to the unanimous-consent agreement of Statements on Introduced Bills/Resolutions: January 26, 2006, a vote on cloture will occur at Pages S212–32 4:30 p.m., on Monday, January 30, 2006. Page S197 Notices of Hearings/Meetings: Page S232 A unanimous-consent agreement was reached pro- Authorities for Committees to Meet: Page S232 viding that if cloture is invoked, notwithstanding the provisions of Rule XXII, the Senate vote on con- Privileges of the Floor: Page S232 firmation of the nomination at 11 a.m. on Tuesday, Adjournment: Senate convened at 9:45 a.m., and January 31, 2006; that all time prior to 11 a.m., be adjourned at 8:05 p.m., until 12 noon, on Friday, equally divided between the Majority and Demo- January 27, 2006. (For Senate’s program, see the re- cratic Leaders, or their designees; further, that the marks of the Majority Leader in today’s Record on cloture vote may be vitiated by agreement of the page S233.) Majority and Democratic Leaders. Page S1197 A unanimous-consent-time agreement was reached providing for further consideration of the nomination Committee Meetings at 12 noon, on Friday, January 27, 2006. Page S233 No committee meetings were held.

D22

VerDate Aug 31 2005 03:01 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00001 Fmt 0627 Sfmt 0627 E:\CR\FM\D26JA6.REC D26JAPT1 hmoore on PROD1PC68 with HMDIGEST January 26, 2006 CONGRESSIONAL RECORD — DAILY DIGEST D23 House of Representatives COMMITTEE MEETINGS FOR FRIDAY, Chamber Action JANUARY 27, 2006 The House was not in session today. The House is scheduled to meet at 12 noon on Tuesday, January (Committee meetings are open unless otherwise indicated) 31, 2006. Senate No meetings/hearings scheduled. Committee Meetings House No committee meetings were held. No committee meetings are scheduled.

VerDate Aug 31 2005 03:01 Jan 27, 2006 Jkt 049060 PO 00000 Frm 00002 Fmt 0627 Sfmt 0627 E:\CR\FM\D26JA6.REC D26JAPT1 hmoore on PROD1PC68 with HMDIGEST D24 CONGRESSIONAL RECORD — DAILY DIGEST January 26, 2006

Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 12 noon, Friday, January 27 12 noon, Tuesday, January 31

Senate Chamber House Chamber Program for Friday: Senate will continue consideration Program for Tuesday: To be announced. 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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