May 24, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 10929 Leahy Obama Snowe state, to calm the dangerous seas vice, but here it is. And by considering Lieberman Pryor Specter Lott Reid Stevens which, from time to time, threaten to that advice, it only stands to reason Lugar Roberts Sununu dash our Republic against rocky shoals that any President will be more as- Martinez Rockefeller Talent and jagged shores. sured that his nominees will enjoy a McCain Salazar Thomas The Senate proved it to be true again kinder reception in the Senate. McConnell Santorum Thune Mikulski Schumer Vitter yesterday, when 14 Members—from The agreement, which references the Murkowski Sessions Voinovich both sides of the aisle, Republicans and need for ‘‘advice and consent,’’ as con- Nelson (FL) Shelby Warner Democrats; 14 Members—of this re- tained in the Constitution, proves once Nelson (NE) Smith (OR) Wyden vered institution came together to again, as has been true for over 200 NAYS—18 avert the disaster referred to as the years, that our revered Constitution is Biden Dorgan Levin ‘‘nuclear option’’ or the ‘‘constitu- not simply a dry piece of parchment. It Boxer Feingold Lincoln tional option’’—these men and women is a living document. Cantwell Jeffords Murray of great courage. Yesterday’s agreement was a real-life Corzine Kennedy Reed illustration of how this historical docu- Dayton Kerry Sarbanes As William Gladstone said, in refer- Dodd Lautenberg Stabenow ring to the Senate of the United ment continues to be vital in our daily lives. It inspires, it teaches, and yester- NOT VOTING—1 States, the Senate is that remarkable body, the most remarkable day it helped the country and the Sen- Inouye of all the inventions of modern politics. ate avoid a serious catastrophe. The PRESIDING OFFICER. On this I thank all of those Republicans and Mr. President, for this reason and vote, the yeas are 81, the nays are 18. Democrats who worked together to others, I ask that at the end of my re- Three-fifths of the Senators duly cho- keep faith with the Framers and the marks the agreement reached by the 14 sen and sworn having voted in the af- Founding Fathers. We have kept the Senators be printed in the RECORD. The PRESIDING OFFICER. Without firmative, the motion is agreed to. faith with those whose collective vision objection, it is so ordered. f gave us this marvelous piece of work, (See exhibit 1.) RECESS the Constitution of the United States. Mr. BYRD. Mr. President, I do this so Thank God—thank God—that this that we in the Senate and the Presi- The PRESIDING OFFICER. Under work has been done and that it has the previous order, the hour of 12:30 dent may all have a way of easily revis- been preserved, that a catastrophe has iting the text of that agreement for fu- having arrived, the Senate will stand been averted. in recess until the hour of 2:15 p.m. ture reference. Article II, section 2, of the Constitu- On the heels of this agreement, I be- Thereupon, the Senate, at 12:30 p.m., tion gives to the President the power lieve that we should now move forward, recessed until 2:15 p.m. and reassem- to nominate, and ‘‘by and with the Ad- propelled by its positive energy, in a bled when called to order by the Pre- vice and Consent of the Senate,’’ to new direction. We should make every siding Officer (Mr. VOINOVICH). ‘‘appoint . . . Judges of the supreme effort to restore reason to the politi- The PRESIDING OFFICER. The Sen- Court, and all other Officers of the cally partisan fervor that has over- ator from Colorado. United States. . . .’’ taken our Senate, this city, and our Mr. SALAZAR. Mr. President, I sug- There are two parts to that phrase: country. We must stop arguing and gest the absence of a quorum. the ‘‘advice’’ on the one hand, and the start legislating. The PRESIDING OFFICER. The ‘‘consent’’ on the other, and both must Divisive political agendas are not clerk will call the roll. be present before any President can ap- America’s goals. The right course lies The assistant legislative clerk pro- point any nominee to the Supreme someplace in the middle. It is our job ceeded to call the roll. Court or any other Federal court. It is, to work as elected representatives of a Mr. BYRD. Mr. President, I ask unan- therefore, a shared responsibility be- reasonable people to do what is right, imous consent that the order for the tween the U.S. Senate and the Presi- regardless of threats from any of the quorum call be rescinded. dent of the United States. angry groups that seem dedicated to The PRESIDING OFFICER. Without By its agreement yesterday, the Sen- intimidation. The skeptics, the cynics, objection, it is so ordered. ate is keeping that construct alive, the doubters, the Pharisees, those who f this shared responsibility between the are intoxicated by the juice of sour NOMINATION OF PRISCILLA President of the United States, on the grapes did not prevail and must not RICHMAN OWEN TO BE UNITED one hand, and the Senate of the United prevail. The 14 Republican and Demo- STATES CIRCUIT JUDGE FOR States, on the other. cratic Senators rose above those who The agreement that was obtained THE FIFTH CIRCUIT—Continued do not wish to see accord but prefer yesterday by the cooperation between discord. The PRESIDING OFFICER. The Sen- and among the 14 Members of the Sen- Chaucer’s ‘‘Canterbury Tales’’—we ator from West Virginia. ate—representing Republicans and have all read Chaucer’s ‘‘Canterbury Mr. BYRD. Mr. President, I read from Democrats—it was that agreement Tales’’ in high school—contains ‘‘The the King James version of the Holy that reminds us of the words of our Pardoner’s Tale.’’ Bible, from the 22nd chapter of Prov- Constitution, by encouraging the The story tells about the journey by erbs, the 28th verse: President of the United States, on the the pilgrims to Canterbury, to the Remove not the ancient landmark, which one hand, to consult with the Senate of shrine of Canterbury. The scene took thy fathers have set. the United States, on the other. In place in Flanders, where once there sat Mr. President, in his second inau- other words, the Senate will be in on drinking in a tavern three young men gural address, Abraham Lincoln ob- the takeoff, meaning prior to sending who were much given to folly. As they served that: up his nominees for our consideration. sat, they heard a small bell clink be- With malice toward none; with charity for In recent times—and by that I mean fore a corpse that was being carried to all; with firmness in the right, as God give us under Presidents of both parties—there the grave. Whereupon, one of the three to see the right, let us strive on to finish the has not been all that much consulta- called to his knave and ordered him to work we are in; to bind up the nation’s tion by the President with the Senate. go and find out the name of the corpse wounds. . . . So here we are, in the Senate, offer- that was passing by. Mr. President, I have always believed ing the hand of partnership to the The boy answered that he already that the Senate, by its nature, attracts Chief Executive and saying: Consult knew and that it was an old comrade of and probably also creates men and with us. That is what the Framers in- the roisterers who had been slain, women of the quality and character tended, that the President of the while drunk, by an unseen thief called who are able to step up when faced United States should consult with the ‘‘Death,’’ who had slain others in re- with crises that threaten the ship of Senate. You don’t have to take our ad- cent days.

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00015 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 10930 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 May 24, 2005 And so out into the road the three the two older villains did as they had Mr. President, it is easy to tear young ruffians went in search of this planned. One threw his arm, as if in down, but it takes a long time to build. monster called Death. They came upon jest, around the shoulders of the third, We have been 217 years in building this an old man and seized him, and with and both buried their daggers in him. Senate, making it what it was intended rough language they demanded that he He fell dead on the pile of gold. The to be by the Framers who wrote it 219 tell them where they could find this other two villains then sat down, broke years ago, who established three equal cowardly adversary who was taking the the bread, cut the cheese, and opened coordinate branches of Government, lives of their good friends around the the two bottles of wine. Each took a who established a separation of powers, countryside. good, deep swallow, and then, suffering who established checks and balances in The old man pointed to a great oak a most excruciating pain, both fell this Constitution of the United States. tree on a nearby knoll, saying, ‘‘There, dead upon the pile of gold and upon the The work of those Framers and the under that tree you will find Death,’’ body of the third. So there they were work of the larger group of Founders that monster. In a drunken rage, the across the pile of gold, all three of took 219 years. It was about to be de- three roisterers set off in a run until them dead. stroyed in a single day, this day. But they came to the tree, and there they Their avarice, their greed for gain, thank God 14 Senators from both sides found a pile of gold—eight basketfuls their love of material things had de- of the aisle met and rose above par- of florins, newly minted, round, gold stroyed them. There is a lesson here in tisan politics and kept the faith with coins. Forgotten was the monster Chaucer’s Tales, as given to us by ‘‘The the Framers and with the Founders so called Death, as the three pondered Pardoner.’’ The strong temptation for that our posterity might enjoy the their good fortune. And they decided political partisanship that has pre- blessings of liberty, the blessings of that they should remain with the gold vailed in the Senate can tear this Sen- freedom of speech, the roots of which go all the way back to the reign of until nightfall, when they would divide ate apart and can tear the Nation apart Henry IV, who reigned from 1399 to 1413 it among themselves and take it to and confront all of us with destruction, and who in 1407 proclaimed that the their respective homes. It would be un- so that in the end we three—the Presi- members of Parliament—the House of safe, they reasoned, to attempt to do so dent, the Senate, and the people—will Lords and the House of Commons— in broad daylight, as they might be all be destroyed, as it were. fallen upon by thieves who would take could speak freely and without fear. So we almost saw that happen here And those words were written into their treasure from them. on the Senate floor—until yesterday, the Declaration of Rights, which dec- It was proposed that the three draw when that catastrophe, looming as it straws, and the person who drew the laration was submitted to William III was before the Senate, was averted. I of Orange and Mary, a Declaration of shortest straw would go into the near- applaud the fact that the center, the by village and purchase some bread and Rights which included freedom of anchor, held, and we stood together for speech in Parliament. That declaration wine and cheese, which they could then the good of the country against mean- was presented on February 13, 1689, to enjoy as they whiled away the daylight spirited, shallow, political ends. William III and Mary. They both ac- hours. So off toward the village the Mr. President, I implore all of us to cepted it and were then proclaimed by young man who drew the shortest endeavor to lift our eyes to the higher the House of Commons joint sovereigns straw went. When he was out of sight, things. We can perform some much of the nation. the remaining two decided that there needed healing on the body politic. If Then, on December 18, 1689, those was no good reason why this fortune, we can come together in a dignified words were included in a statute, the this pile of gold, should be divided way to orderly and expeditiously move English Bill of Rights—freedom of among three individuals. So one of forward on these nominations, perhaps speech, the roots going back a long them said to the other, ‘‘When he re- we can yet salvage a bit of respect and way. That freedom of speech then was turns, you throw your arm around him trust from the American people for all provided to those of us in the Senate, as if in good sport, as in jest, and I will of us, for the Senate, and for our insti- provided by the Constitution, and since rive him with my dagger, and with tutions of free government. 1806, when the provision for the pre- your dagger, you can do the same. We have a duty, at this critical time, vious question was discarded upon the Then all of this gold will be divided not to rise above politics as usual, in which recommendation of Vice President among three of us but just between two we savage one another, and in so doing, Aaron Burr, since 1806 that provision of us—you and me.’’ destroy ourselves, like the three vil- for the previous question or the sudden Meanwhile, while the two were plan- lains in ‘‘The Pardoner’s Tale.’’ cutting off debate was discarded. Since ning the demise of the third, the Let us put the Nation first. The 1806, until the year 1917, the year in youngest rogue, as he made his way American people want us to do that. In which I was born during the adminis- into the town, thought to himself what the long run, that is how we will be tration of Woodrow Wilson, that free- a shame it would be that the gold judged and, more importantly, it is dom of speech has prevailed in the Sen- would be divided among three, when it how the Senate will be judged. ate, and it has lived since then except just as well could be so easily belong It is easy to tear down; it is difficult for unanimous consent agreements and only to the ownership of one, himself. to build. the cloture provision which was first Therefore, in town the young man went I saw them tearing a building down, agreed to in 1917, the cloture provision directly to an apothecary and asked to A group of men in a busy town. shutting off debate under the rules of be sold some poison for the large rats With a ‘‘Ho, Heave, Ho and a lusty yell, the Senate. and a polecat that had been killing his They swung a beam and the sidewall fell. Freedom of speech has reigned in this chickens. The apothecary—the phar- I said to the foreman, ‘‘Are these men body, and it still lives, thanks again to macist—quickly provided some poison, skilled? the 14 Republicans and Democrats who saying that as much as equaled only a The type you would hire if you had to build.’’ rose above politics yesterday and came tiny grain of wheat would result imme- He laughed, and then he said, ‘‘No indeed, forward with this accord. diately in sudden death for the crea- Just common labor is all I need; So, Mr. President, let us be true to ture that drank the mixture. I can easily erect in a day or two, the faith of our fathers and to the ex- Having purchased the poison, the That which takes builders years to do.’’ pectation of those who founded this Re- young villain crossed the street to a I said to myself as I walked away, public. The coming days will test us winery, where he purchased three bot- ‘‘Which of these roles am I trying to play? again and again, but let us go forward tles—two for his friends, one for him- Am I a builder who works with care, Building my life by the rule and square? together hoping that in the end, the self. After he left the village, he sat Am I shaping my deeds by well-laid plan, Senate will be perceived as having down, opened two bottles of wine and Patiently building the best I can? stood the test, and may we, both Re- deposited an equal portion in each, and Or am I a wrecker who walks the town publicans and Democrats and Independ- then returned to the oak tree, where Content with the labor of tearing down.’’ ents, when our work is done, be judged

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00016 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 May 24, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 10931 by the American people and by the members of the Senate, both Democratic and mobile training team to Kuwait and pages of history as having done our Republican, prior to submitting a judicial Saudi Arabia to train the ‘‘lost boys,’’ duty and as having done it well. nomination to the Senate for consideration. newly appointed Civil Affairs and Psy- Such a return to the early practices of our Our supreme duty is not to any par- government may well serve to reduce the chological Operations officers already ticular person, not to any particular rancor that unfortunately accompanies the deployed to the Persian Gulf. President, not to any political party, advice and consent process in the Senate. The newly trained officers performed but to the Constitution, to the people We firmly believe this agreement is con- superbly during operations and 3rd of the Nation, and to the future of this sistent with the traditions of the United Battalion won the Army Superior Unit Republic. It is in that spirit that we States Senate that we as Senators seek to Award, largely due to the efforts and may do well to remember the words of uphold. foresight of Colonel Howard. E. Benjamin Nelson, Mike DeWine, Joe Benjamin Hill, a great Senator, a great Lieberman, Susan Collins, Mark Pryor, As a newly commissioned officer, a orator from the State of Georgia, his Lindsey Graham, Lincoln Chafee, John much younger officer, Colonel Howard words being inscribed on a statue in McCain, John Warner, Robert C. Byrd, served as ‘‘A’’ team commander in the Atlanta, GA, as they are and as they Mary Landrieu, Olympia Snowe, Ken 7th Special Forces Group from 1970 to appear today upon that monument: Salazar, and Daniel Inouye. 1972. Who saves his country saves himself, saves The PRESIDING OFFICER (Mr. COR- He left the Active component and all things, and all things saved do bless him. NYN). The clerk will call the roll. served in the U.S. Army Reserve from Who let’s his country die dies himself igno- The bill clerk proceeded to call the 1972 to 1980. During this period, he bly, and all things dying curse him. roll. served as an overseas manager, Amer- Remember that ancient proverb: Re- Mr. REED. Mr. President, I ask unan- ican International Underwriters Mel- move not the ancient landmark, which imous consent that the order for the bourne, Australia, and China tour man- thy fathers have set. quorum call be rescinded. ager and Canadian Pacific Airlines. I yield the floor. I suggest the ab- The PRESIDING OFFICER (Mr. MAR- He was recalled to active duty in 1980 sence of a quorum. TINEZ). Without objection, it is so or- and served initially in Korea as an in- EXHIBIT 1 dered. fantry company commander. Subse- Mr. REED. Mr. President, I ask unan- MEMORANDUM OF UNDERSTANDING ON JUDICIAL quent assignments included classified NOMINATIONS imous consent to speak as in morning project officer, U.S. Army 1st Special We respect the diligent, conscientious ef- business. Operations Command at Fort Bragg, forts, to date, rendered to the Senate by Ma- The PRESIDING OFFICER. Without and operations officer and company jority Leader Frist and Democratic Leader objection, it is so ordered. commander 1st Battalion, 1st Special Mr. REED. Mr. President, I also ask Reid. This memorandum confirms an under- Forces Group in Okinawa, Japan. unanimous consent that the time I standing among the signatories, based upon Colonel Howard earned a bachelor of consume come out of my time mutual trust and confidence, related to science degree in industrial manage- pending and future judicial nominations in postcloture. the 109th Congress. The PRESIDING OFFICER. Without ment from San Jose State University, This memorandum is in two parts. Part I objection, it is so ordered. bachelor of arts degree in Asian studies relates to the currently pending judicial from the University of Maryland, a RETIREMENT OF COLONEL RUSS HOWARD, nominations; Part II relates to subsequent UNITED STATES ARMY master of arts degree in international individual nominations to be made by the management from the Monterey Insti- President and to be acted upon by the Sen- Mr. REED. Mr. President, I rise today to recognize the accomplish- tute of International Studies, and a ate’s Judiciary Committee. masters of public administration de- We have agreed to the following: ments of Colonel Russ Howard, head of the department of social sciences and gree from Harvard University. PART I: COMMITMENTS ON PENDING JUDICIAL Colonel Howard was an assistant pro- NOMINATIONS director of the Combating Terrorism fessor of social sciences at the U.S. A. Votes for Certain Nominees. We will Center at West Point. Colonel Howard vote to invoke cloture on the following judi- is retiring June 3, 2005, after 37 years of Military Academy and a senior service cial nominees: Janice Rogers Brown (D.C. Active and Reserve military service. college fellow at the Fletcher School of Circuit), William Pryor (11th Circuit), and In his previous position, he was the Law and Diplomacy, Tufts University. Priscilla Owen (5th Circuit). deputy department head of the depart- During his extraordinary career of B. Status of Other Nominees. Signatories ment of social sciences. Prior to that, public service, Colonel Russ Howard make no commitment to vote for or against Colonel Howard was an Army chief of was a dedicated leader, enlightened vi- cloture on the following judicial nominees: staff fellow at the Center for Inter- sionary, effective operator, and exem- William Myers (9th Circuit) and Henry Saad plary role model for cadets, soldiers, (6th Circuit). national Affairs at Harvard University. Formerly, Colonel Howard was the and civilians. PART II: COMMITMENTS FOR FUTURE For the past 7 years, he made enor- NOMINATIONS commander of the 1st Special Forces Group (Airborne) at Fort Lewis, WA. mous contributions to the U.S. Mili- A. Future Nominations. Signatories will tary Academy, its graduates, and to exercise their responsibilities under the Ad- Other recent assignments include as- vice and Consent Clause of the United States sistant to the Special Representative the Nation through his relentless pur- Constitution in good faith. Nominees should to the Secretary General during suits of excellence in the department of only be filibustered under extraordinary cir- UNOSOM II in Somalia, deputy chief of social sciences and his advancement of cumstances, and each signatory must use his staff for I Corps, and chief of staff and education, research, and policy devel- or her own discretion and judgment in deter- deputy commander for the Combined opment in the global war on terror. mining whether such circumstances exist. Joint Task force, Haiti/Haitian Advi- He was the right person at the right B. Rules Changes. In light of the spirit and sory Group. He also served as the ad- time in exactly the right job as the continuing commitments made in this agree- Academy and the Nation responded to ment, we commit to oppose the rules ministrative assistant to ADM changes in the 109th Congress, which we un- Stansfield Turner and as a special as- the events of 9/11 and the global war on derstand to be any amendment to or inter- sistant to the commander of terror. Building on his extraordinary pretation of the Rules of the Senate that SOUTHCOM. skills as a researcher and educator, he would force a vote on a judicial nomination When Colonel Howard was com- knew the intellectual response to the by means other than unanimous consent or mander of 3rd Battalion, 1st Special war on terror would have to be as sig- Rule XXII. Warfare Training Group (Airborne) at nificant as the operational response We believe that, under Article II, Section Fort Bragg, NC, he developed the cur- and set a course for the department 2, of the United States Constitution, the and the Academy to lead this response. word ‘‘Advice’’ speaks to consultation be- riculum for the first ever graduate de- tween the Senate and the President with re- gree program for the Civil Affairs and Building on an exceptional experi- gard to the use of the President’s power to Psychological Operations officers. ence as a Special Forces officer who make nominations. We encourage the Execu- Prior to Operation Desert Shield/ commanded at every level from team tive branch of government to consult with Desert Storm, Colonel Howard took a leader to Special Forces Group, he was

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00017 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 10932 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 May 24, 2005 able to integrate the intellectual issues We have at times in the past in the I want to find cures, also—cures for of understanding terrorism with the United States researched on other people with cancer, Alzheimer’s dis- practical issues of countering ter- human beings. Whenever we have done ease, Parkinson’s disease, spinal cord rorism and include them in the cur- so, at the moment in time when it was injuries, or juvenile diabetes—and I riculum, and eventually led to the es- done, people did it on the basis that we have been working on that. The thing tablishment of the Combating Ter- need to know, or we need to be able to is, we have a route to find these cures rorism Center at West Point. conduct this research, or this research that is ethical and moral. He inspired support from the acad- will provide a cure for something. Yet The House is also considering a cord emy leadership, from General-retired in every instance—either in this coun- blood bill from Congressman SMITH Wayne Downing, Mr. Vinnie Viola, Mr. try or others—when it has been done today, and there are also adult stem Ross Perot, and many others, so that and the society at large has allowed it, cells. We have had this discussion be- the U.S. Military Academy has become we have always, always regretted it fore, but I think people hear ‘‘stem the international leader in under- later. It has always been wrong for one cells,’’ and they say: I am for it. We graduate terrorism education and re- group of humans who are in a more need to be clear that there are different search. powerful position to research on some- types of stem cells: There are cord Simultaneously, Colonel Howard en- body in a lesser position. That has al- blood stem cells in the umbilical cord, hanced all aspects of the academy and ways been true, and it remains true there are embryonic stem cells, where the Department of Social Sciences by today. We should not use taxpayer dol- you have to destroy the embryo itself supporting a robust teaching program. lars to fund research on the youngest to get the stem cells, and there are He taught more than 15 different of human lives. It is wrong, it is not adult stem cells in my body and yours courses, created 4 new ones, published 3 necessary, and it should be stopped. and anybody watching. These adult books and 15 articles, and encouraged I am pleased that the President has stem cells are a kind of repair cell that and cultivated resources for other fac- promised to veto this legislation. How- goes around the body fixing different ulty to follow his example. ever, I also intend to not let this piece parts of the body. We have been able to His support for faculty and cadet de- of legislation make it forward, to move take adult stem cells out and grow velopment through the scholarship, de- to the President’s desk. If others them outside the body to the point bate, model U.N., domestic affairs choose to bring this destruction of that, today, over 58 different human forum, finance forum, sports, and a human life—taxpayer-funded destruc- diseases are being treated in human pa- myriad of other activities was excep- tion of human life—in front of this tients. There are published clinical tional. Most importantly, he is a trust- body, I intend that we are going to talk studies using adult stem cells—the ed, caring, concerned, and dedicated about it for a long time and address a stem cells from one’s own body. leader who evokes the best from every- whole series of issues, whether it be A Parkinson’s disease patient, treat- body with whom he comes in contact. It has been my privilege to know human cloning, which is associated ed with his own adult stem cells, con- Colonel Howard for many years, to re- with this human destructive legisla- tinues to exhibit relief of 80 percent of spect him as a soldier and a scholar, tion, or the creation of human-animal his symptoms more than 6 years after and to at this moment congratulate crosses for research purposes. We are the surgery. I had the man come in him on a career of exceptional service going to spend a lot of time discussing himself, who was treated with his own to the Army and to the Nation. As he this because young human lives are at adult stem cells taken from the base of parts for other venues and other re- stake. I will not sit idly by and acqui- his nose, grown outside the body, put sponsibilities, I wish him well. esce in their tragic destruction. in the left-hand side of his brain, with I yield back my time, and I suggest If this human destructive legislation, a substantial improvement on the the absence of a quorum. or a Senate counterpart, comes before right-hand side of his body. That is The PRESIDING OFFICER. The this body, I will use all means available purely ethical research. It is working clerk will call the roll. to impede its progress. At the very and getting the job done. The assistant legislative clerk pro- least, we should have a lengthy debate Spinal cord injuries. Dr. Carlos ceeded to call the roll. on this issue before taking any action. Limas treated 34 patients in Portugal Mr. BROWNBACK. Mr. President, I The reason is that young human lives with their own adult stem cells. I had ask unanimous consent that the order are at stake. I believe the very nature two of them in to testify at a hearing for the quorum call be rescinded. of our culture—whether we will have a last year—one is a paraplegic and one The PRESIDING OFFICER. Without culture of life or not is at stake. Will is a quadriplegic—and they are walking objection, it is so ordered. we honor human life because it is sa- with the assistance of braces and their EMBRYONIC STEM CELL RESEARCH cred per se, or are we going to use it for own adult stem cells. Mr. BROWNBACK. Mr. President, I a research apparatus for the benefit of Also, umbilical cord blood cells were rise to speak about an issue that has others? We have always regretted that used to treat a South Korean woman been worked on in the country for when we have done it before. Today is who had been paralyzed for 19 years. some period of time. Soon, a House a similar type of discussion. She had not walked for 19 years, and vote will take place on embryonic stem Some are saying this doesn’t really she can now walk with braces. cell research. The issue that will soon look like a human life; it is so small, so What about juvenile diabetes? This be voted on in the House—and may microscopic in some cases, that some disease affects a lot of people. This is come before this body—is whether to say it really cannot be human life. Yet, one that has vexed a lot of people. We allow the taxpayer funding of destruc- according to the biological and sci- all want to find a cure for juvenile dia- tion of young human life. entific definition, this is young human betes. This legislation being considered in life. If allowed to be nurtured, it be- Dr. Denise Faustman at Harvard is a the House of Representatives would comes you, me, or anybody watching. leading diabetes researcher. She has take young human embryos, would pro- Life has to be nurtured at all stages. It completely reversed end-stage juvenile vide taxpayer dollars to destroy these is no different biologically at that diabetes in mice and has FDA approval embryos and conduct research on the stage versus at a later stage. It has the to begin human clinical trials using stem cells derived from them. I believe same biological components, or ‘‘soft- adult stem cell therapy. we all have a duty to protect innocent ware,’’ if you will, or DNA structure. It My point in mentioning these 3 of the life. We have a duty and a responsi- needs to be nurtured, and it matures 58 different areas is that we have an bility to look out for the downtrodden, into an adult human. If we are going to ethical answer. We have an answer that those who do not have a voice. These proceed on this, I think we are really does not involve the destruction of are the youngest of human lives; they hurting ourselves as a society. human life, and it is right before us. should be protected, and they should I also point out that some people are We can do it. We can fund it, and we not be researched on. saying we need to do this to find cures. can move forward with it. We do not

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00018 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 May 24, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 10933 have to destroy young human life to do medical care. There is now $19 million avail- stage of basic science, and has never yielded this, and it is wrong if we do. able to implement the Cord Blood Cell Bank a therapeutic application in humans. It is There is going to be a big discussion. program; the Administration will work with too early to say if a treatment or a cure will We are going to have a lot of debate the Congress to evaluate future spending re- develop from embryonic stem cell research. quirements for these activities. The bill is The Administration believes that the about this issue on the floor or in com- also consistent with the recommendation availability of alternative sources of stem mittee or other places if people decide from the National Academy of Science to cells further counters the case for compel- to move this legislation forward. This create a National Cord Blood Stem Cell ling the American taxpayer to encourage the is not about banning human embryonic Bank program. ongoing destruction of human embryos for stem cell research. This is about tax- The Administration also applauds the bill’s research. Researchers are continually ex- payer funding of human embryonic effort to facilitate research into the poten- ploring alternative ways to derive pluripotent stem cells. And alternative types stem cell research. Embryonic stem tial of cord-blood stem cells to advance re- generative medicine in an ethical way. Some of human stem cells—drawn from adults, cell research is legal. It is being con- research indicates that cord blood cells may children, and umbilical-cord blood without ducted in this country. It is being fund- have the ability to be differentiated into doing harm to the donors—have already ed by the Government of the United other cell types, in ways similar to embry- achieved therapeutic results in thousands of States on a limited set of lines. The onic stem cells, and so present similar poten- patients with dozens of different diseases. President had the discussion and put tial uses but without raising the ethical Moreover, private sector support and pub- forward the guidelines—a limited set of problems involved in the intentional de- lic funding by several States for this line of struction of human embryos. The Adminis- research, which will add up to several billion lines that were identified, on which a dollars in the coming few years, argues life-and-death decision had already tration encourages efforts to seek ethical ways to pursue stem cell research, and be- against any urgent need for an additional in- been made prior to funding. That re- lieves that—with the appropriate combina- fusion of Federal funds which, even if com- search continues and goes on today. tion of responsible policies and innovative pletely unrestricted, would not approach The House bill would expand that and scientific techniques—this field of research such figures. Whatever one’s view of the eth- say we can kill young human life today can advance without violating important ical issues or the state of the research, the for research on embryonic stem cells, ethical boundaries. HR 2520 is an important future of this field does not require a policy and we want to do it with taxpayer step in that direction. of Federal subsidies offensive to the moral principles of millions of Americans. funding. That is what I am saying I am STATEMENT OF ADMINISTRATION POLICY—May H.R. 810 advances the proposition that the opposed to is the taxpayer funding 24, 2005 Nation must choose between science and eth- where a life-and-death decision has not ics. The Administration, however, believes it H.R. 810—STEM CELL RESEARCH ENHANCEMENT is possible to advance scientific research been made, and we involve the destruc- ACT OF 2005 without violating ethical principles: both by tion of young human lives. The House (Rep. Castle (R) DE and 200 cosponsors) enacting the appropriate policy safeguards bill should not move forward. The Administration strongly opposes Mr. President, there are two state- and by pursuing the appropriate scientific House passage of H.R 810, which would re- techniques. HR 810 is seriously flawed legis- ments that the President has put for- quire Federal taxpayer dollars to be used to lation that would undo those safeguards and ward saying that he would veto such encourage the ongoing destruction of nas- provide a disincentive to pursuing those legislation if it comes forward. I ask cent human life. The bill would compel all techniques. unanimous consent to print these American taxpayers to pay for research that relies on the intentional destruction of Mr. BROWNBACK. Mr. President, we statements in the RECORD. will have much discussion of this issue There being no objection, the mate- human embryos for the derivation of stem cells, overturning the President’s policy that if it comes before this body. I am going rial was ordered to be printed in the supports research without promoting such to be working aggressively with a num- RECORD, as follows: ongoing destruction. If H.R 810 were pre- ber of individuals to see that we con- STATEMENT OF ADMINISTRATION POLICY—MAY sented to the President, he would veto the tinue this stem cell work in an ethical 24, 2005 bill. manner, but not where it involves the The President strongly supports medical H.R. 2520—STEM CELL THERAPEUTIC AND destruction of human life. RESEARCH ACT OF 2005 research, and worked with Congress to dra- matically increase resources for the Na- Mr. President, I yield the floor, and I (Rep. Smith (R) NJ and 78 cosponsors) tional Institutes of Health. However, this suggest the absence of a quorum. The Administration strongly supports bill would support and encourage a line of re- The PRESIDING OFFICER. The House passage of H.R. 2520, which would fa- search that requires the intentional destruc- clerk will call the roll. cilitate the use of umbilical-cord-blood stem tion of living human embryos for the deriva- The legislative clerk proceeded to cells in biomedical research and in the treat- tion of their cells. Destroying nascent call the roll. ment of disease. Cord-blood stem cells, col- human life for research raises serious ethical Mr. FEINGOLD. Mr. President, I ask lected from the placenta and umbilical cord problems, and many millions of Americans unanimous consent that the order for after birth without doing harm to mother or consider the practice immoral. the quorum call be rescinded. child, have been used in the treatment of The Administration believes that govern- The PRESIDING OFFICER. Without thousands of patients suffering from more ment has a duty to use the people’s money than 60 different diseases, including leu- objection, it is so ordered. responsibly, both supporting important pub- Mr. FEINGOLD. Mr. President, I kemia, Fanconi anemia, sickle cell disease, lic purposes and respecting moral bound- and thalassemia. Researchers also believe aries. Every year since 1995, Congress has on voted no on cloture, and I will vote no cord-blood stem cells may have the capacity a bipartisan basis upheld this balance by pro- on the nomination of Priscilla Owen to to be differentiated into other cell types, hibiting Federal funds for research in which be a judge on the U.S. Circuit Court of making them useful in the exploration of an embryo is destroyed. Consistent with this Appeals for the Fifth Circuit Court. I ethical stem cell therapies for regenerative provision, the President’s policy permits the would like to take a few minutes today medicine. funding of research using embryonic cell to explain my votes. I also would like H.R. 2520 would increase the publicly avail- lines created prior to August 9, 2001, along to make a few comments on the events able inventory of cord-blood stem cells by with stem cell research using other kinds of enabling the Department of Health and that led up to these votes. cell lines. Scientists can therefore explore I strongly oppose the threat of the Human Services (HHS) to contract with the potential application of such cells, but cord-blood banks to assist them in the col- the Federal government does not offer incen- nuclear option. I believe this was an il- lection and maintenance of 150,000 cord-blood tives or encouragement for the destruction legitimate tactic, a partisan abuse of stem cell units. This would make matched of nascent human life. power that was a threat to the Senate cells available to treat more than 90 percent H.R 810 seeks to replace that policy with as an institution and to the country. of patients in need. The bill would also link one that offers very little additional prac- Attempting to blackmail the minority all participating cord-blood banks to a tical support to the research, while using into giving up their rights that have search network operated under contract with Federal dollars to offer a prospective incen- been part of the Senate’s traditions HHS, allowing physicians to search for tive for the destruction of human embryos. matches for their patients quickly and effec- Moreover, H.R 810 relies on unsupported sci- and practices for centuries was a new tively in one place. The bill also would reau- entific assertions to promote morally trou- low for a majority that has repeatedly thorize a similar program already in place bling and socially controversial research. been willing to put party over prin- for aiding the use of adult bone marrow in Embryonic stem cell research is at an early ciple. Unfortunately, the blackmail

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00019 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 10934 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 May 24, 2005 was partially successful. While I do ap- Another important consideration is Fifth Circuit. But, of course, that did plaud the efforts of the Senators who the ideological balance of the Fifth not happen. There was no effort to worked hard to broker an agreement, Circuit. The Fifth Circuit is comprised reach a real compromise to take into the end result is that three nominees of Texas, Louisiana, and Mississippi. account the concerns of all parties. who do not deserve lifetime appoint- The Fifth Circuit contains the highest A compromise at the point of a gun is ments to the judiciary will now be con- percentage of minority residents, over not a compromise. That, I’m afraid, is firmed. 40 percent of any circuit other than the what we had last night. The agreement reached by our col- DC Circuit. It is a court that, during With that background, let me outline leagues states that filibusters should the civil rights era, issued some of the the concerns that have caused me to be reserved for extraordinary cir- most significant decisions supporting reach the conclusion that Justice Owen cumstances. For me, that has always the rights of African-American citizens should not be confirmed. been the test. I think Democrats have to participate as full members of our Justice Owen has had a successful stuck to that standard in blocking just society. legal career. She graduated at the top 10—just 10—out of the 218 nominations As someone who believes strongly in of her class from Baylor University of President Bush that have been freedom, liberty, and equal justice Law School, worked as an associate brought to the floor. A number of very under law and the important role of and partner at the law firm of Andrews conservative and very controversial the Federal courts to defend these fun- and Kurth in Houston, and has served nominees have been confirmed by the damental American principles, I am es- on the Texas Supreme Court since Jan- Senate. Jeffrey Sutton, now a judge on pecially concerned about the makeup uary 1995. These are great accomplish- the Sixth Circuit, was confirmed by a of our circuit courts and their ap- ments. vote of 52 to 41. No filibuster was used proaches to civil rights issues. But Justice Owen’s record as a mem- there. Jay Bybee, the author of the in- Even after 8 years of a Democratic ber of the Texas Supreme Court leads famous torture memo, now sits on the President, the Fifth Circuit had twice me to conclude that she is not the Ninth Circuit. He was not filibustered. as many Republican appointees as right person for a position on the Fifth Michael McConnell, a very conserv- Democratic appointees. That is because Circuit. I am not convinced that Jus- ative and anti-choice law professor, during the last 6 years of the Clinton tice Owen will put aside her personal often mentioned as a possible Supreme administration, the Judiciary Com- views and ensure that all litigants be- Court nominee, was confirmed for the mittee did not report out a single judge fore her on the Fifth Circuit received a Tenth Circuit. He was not filibustered. to the Fifth Circuit Court of Appeals. fair hearing. Her decisions in cases in- Dennis Shedd was confirmed to the As we all know, that was not for a lack volving consumers’ rights, worker’s Fourth Circuit by a vote of 55 to 44. He of nominees to consider. President rights, and reproductive rights suggest could have been filibustered, but he that she would be unable to maintain was not filibustered. Clinton nominated three well-qualified The idea that the filibuster has been lawyers to the Fifth Circuit—Jorge an open mind and provide all litigants used over the past several years as a Rangel, Enrique Moreno, and Alston a fair and impartial hearing. tool to block all the nominees that the Johnson. None of these nominees even Justice Owen has a disturbing record minority opposed is ludicrous. There received a hearing before the com- of consistently siding against con- were, and there continue to be, very mittee. sumers or victims of personal injury good reasons to block a certain small Then-Chairman LEAHY held a hearing and in favor of business and insurance number of nominees. Nothing that oc- in July 2001 on the nomination of companies. When the Texas Supreme curred last night changed that one Judge Edith Brown Clement for a seat Court, which is a very conservative and iota. I will continue to vote against on the Fifth Circuit only a few months pro- business court, rules in favor of cloture only in extraordinary cir- after she was nominated and less than consumers or victims of personal in- cumstances. I did that when we voted 2 months after Democrats took control jury, Justice Owen frequently dissents. on cloture on the Owen nomination in of the Senate. It was the first hearing According to Texas Watch, during the 2003 and each subsequent time, and I in the Judiciary Committee for a Fifth period 1999 to 2002, Justice Owen dis- have done that again today. For the Circuit nominee since September 1994. sented almost 40 percent of the time in majority to have created this constitu- And Judge Clement, of course, was con- cases in which a consumer prevailed. tional crisis over what came down to firmed later in the year. But in cases where the consumer posi- five nominees was wrong, was an abuse The fact is, there is a history here tion did not succeed, Justice Owen of power. The American people did not and a special burden on President Bush never dissented. support it, and I do not think they will to consult with our side on nominees At her first hearing, Senator KEN- support it in the future. for this circuit; otherwise, we will be NEDY and then-Senator Edwards asked With respect to the Owen nomina- simply rewarding the obstructionism Justice Owen to cite cases in which she tion, there are a number of factors that that the President’s party engaged in dissented from the majority and sided I believe require us to give this nomi- over the last 6 years of the Clinton ad- in favor of consumers. Justice Owen nation very careful consideration. ministration by allowing him to fill, could cite only one case, Saenz v. Fi- First, we should consider that judges with his choices, seats that his party delity Guaranty Insurance Under- on our courts of appeal have an enor- held open for years, even when quali- writers. But Justice Owen’s opinion in mous influence on the law. Whereas, fied nominees were advanced by Presi- this case hardly took a pro-consumer decisions of the district courts are al- dent Clinton. position since it still would have de- ways subject to appellate review, the I say, once again, my colleagues on prived the plaintiff of the entire jury decisions of the courts of appeals are the Republican side bear some respon- verdict. She did not join Justice only subject to discretionary review by sibility for this situation. There was a Spector’s dissent, which would have the Supreme Court. The decisions of time when I thought they might help upheld the jury verdict in favor of Ms. the courts of appeal are, in almost all resolve it by urging the administration Saenz. cases, final, as the Supreme Court to address the Senate’s failure to take Also during that first hearing, Sen- agrees to hear only a very small per- up Clinton nominees. This entire con- ators FEINSTEIN and DURBIN questioned centage of the cases on which its views troversy over judges that has come to Justice Owen about Provident Amer- are sought. That means that the scru- a head over the last several weeks ican Ins. Co. v. Castaneda. In that case, tiny we give to circuit court nominees could have been avoided if our Repub- the plaintiff sought damages against a must be greater than that we give to lican colleagues had convinced the health insurer for denying health care district court nominees. And then, of President to renominate even a few of benefits, after the insurer had already course, the scrutiny we give to Su- those Clinton nominees who never re- provided pre-operative approval for the preme Court nominees will even be ceived a hearing or vote in the com- surgery. Justice Owen, writing for the greater. mittee, including nominees to the majority, reversed the jury’s verdict in

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00020 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 May 24, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 10935 favor of the plaintiff and rejected the with the statute and obtain an abor- mistake in subsequent legislation. Let plaintiff’s claim that the health in- tion. us all remember that judicial appoint- surer violated the Texas Insurance I was also not satisfied with Justice ments are for life. Confirmations can- Code and the Deceptive Trade Prac- Owen’s responses to my questions not be taken back or fixed. A vote to tices Act. At the hearing, Justice Owen about bonuses to Texas Supreme Court confirm a nominee is final. A vote to defended her opinion by saying that law clerks. I asked her at the hearing reject that nominee should be final as she believed that the plaintiff was whether she saw any ethical concerns well. For the President to renominate seeking extra-contractual damages and with allowing law clerks to receive bo- a defeated nominee and the Senate to that the plaintiff had already received nuses from their prospective employers reconsider her simply because of the full coverage under the policy and stat- during their clerkships. I also explored change of a few seats in an election utory penalties. But, in the words of the topic further with her in followup cheapens the nomination process and her colleague, Justice Raul Gonzalez, written questions. Justice Owen stated the Senate’s constitutional role in that who wrote a dissent, Justice Owen’s repeatedly in her written responses to process. opinion ‘‘may very well eviscerate the my questions that she is not aware of I believe Justice Owen is bright and bad-faith tort as a viable case of action law clerks actually receiving bonuses accomplished, but I sincerely believe in Texas.’’ The cause of action for bad while they were employed by the court. that based on her judicial record, Jus- faith is designed to deter insurers from She reaffirmed that testimony in her tice Owen is not the right choice for engaging in bad faith practices like de- second hearing. This seems implausble this position. nying coverage in the first place. given the great amount of publicity Ms. CANTWELL. Mr. President, I dis- In addition, with respect to several given to Ian investigation pursued by cuss the nomination of Priscilla Owen decisions involving interpretation and the Travis County attorney of exactly to the Fifth Circuit Court of Appeals, application of the Texas parental noti- that practice and the well publicized and to briefly discuss the compromise fication law, I am deeply troubled by modifications to the Texas Supreme before us on the so-called nuclear op- Justice Owen’s apparently ignoring the Court’s rules that resulted from that tion. plain meaning of the statute and in- investigation and the accompanying I continue to oppose all three of the jecting her personal beliefs concerning controversy. nominees that will proceed to up-or- abortion that have no basis in Texas or Even more disturbing, Justice Owen down votes as the result of this com- U.S. Supreme Court law. In 2000, the took the position, both at the first promise, and I will be voting against Texas legislature enacted a parental hearing and in her responses to written cloture on Priscilla Owen as a result. notification law that allows a minor to questions, that because the Texas Su- But I do acknowledge the importance obtain an abortion without notifica- preme Court Code of Conduct requires of preserving the process of debating tion of her parents if she demonstrates law clerks to recuse themselves from judicial nominees. I do not feel that to a court that she has complied with matters involving their prospective the filibuster has been misused with re- one of three ‘‘judicial bypass’’ provi- employers, there really is no ethical gard to President Bush’s nominees, as sions: (1) that she is ‘‘mature and suffi- concern raised by law clerks accepting I’ll explain shortly, but I am impressed ciently well informed’’ to make the de- bonuses while employed with the court. at the efforts of my colleagues on both cision without notification to either of I disagree. It is not sufficient for law sides of the aisle to avoid the all-or- her parents; (2) that notification would clerks to recuse themselves from mat- nothing nuclear option vote that not be in her best interest; or (3) that ters involving their prospective em- threatened to cause us to break down notification may lead to her physical, ployers if they have received thousands as an institution. sexual, or emotional abuse. of dollars in bonuses while they are I also express my hope that the term During Justice Owen’s first confirma- working for the court. The appearance ‘‘extraordinary circumstances’’ that is tion hearing, Senator CANTWELL ques- of impropriety and unfairness that in this compromise is interpreted sen- tioned Justice Owen about her posi- such a situation creates is untenable. sibly. When extreme nominees threaten tions in cases interpreting this law, fo- As I understand it, the Federal courts the balance of our federal courts, I cusing on Justice Owen’s insistence in have long prohibited Federal law view those as extraordinary cir- In re Jane Doe. In that case, a teenager clerks both from receiving bonuses dur- cumstances. I will continue to vote to is required to consider ‘‘philosophic, ing their clerkships and from working block any nominee who is not suitable social, moral, and religious’’ argu- on cases involving their prospective for the bench, and it will continue to ments before seeking an abortion. In employers. I am pleased that the Texas be an unusual exception for me not to her opinion, Justice Owen cited the Su- Supreme Court finally recognized this support a nominee. My standard has preme Court’s decision in Planned Par- ethical problem and changed its code of been extraordinary circumstances all enthood of Southeastern Pennsylvania conduct for clerks. Justice Owen, in along. v. Casey to support her contention that contrast, seems intent on defending the As a former member of the Judiciary States can require minors to consider prior, indefensible, practice. Committee, I attended a hearing on religious views in their decision to Finally, I want to note the unusual Priscilla Owen that lasted a full day. have an abortion. But, as Senator nature of this particular nomination. During that hearing, Owen’s record CANTWELL noted, Casey in no way au- Unlike so many nominees during the showed a particular disregard for thorizes States to require minors to Clinton years, Justice Owen was con- precedent and the plain rule of law. consider religious arguments in their sidered in the Judiciary Committee Anyone who walks into a courtroom decision on whether to have an abor- under Senator LEAHY’s leadership in as a plaintiff or a defendant in this tion. Upon this further questioning, 2002. She had a hearing, and she had a country should do so having the full Justice Owen then said that she was re- vote. Her nomination was rejected. confidence that there is impartiality ferring to another Supreme Court case, This has been the first time in history on the part of the judge on the bench. H.L. v. Matheson, even though her that a circuit nominee who was for- They should have total confidence that opinion only cited Casey for this propo- mally rejected by the committee, or the rule of law will be followed, and be- sition. And even Matheson does not say the full Senate for that matter, has lieve the issues will be judged on their that minors can be required by State been renominated by the same Presi- merits rather than viewed through the law to consider religious arguments. It dent to the same position. I do not be- prism of an individual judge’s personal is my view that Justice Owen was lieve that defeated judicial nomina- values or beliefs. going beyond not only a plain reading tions should be reconsidered like legis- There is reason to be concerned of the Texas statute, but Supreme lation that is not enacted. After all, about the record of Priscilla Owen. Court case law, and inappropriately in- legislation can be revisited after it is Time after time, even her own Repub- jecting her own personal views to make enacted. If Congress makes a mistake lican colleagues, on a predominantly it more difficult for a minor to comply when it passes a law, it can fix that Republican Texas Supreme Court

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00021 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 10936 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 May 24, 2005 bench, criticized her for failing to fol- passed a law requiring parental notifi- the presiding officer that certain ac- low precedent or interpreting statutes cation. But they also included a bypass tions of Senators are dilatory and can- in ways that ignore the clear intent of system for extreme cases. not preclude the Senate from voting on the law. Eleven out of 12 times Owen analyzed a judicial nomination. What some of Owen’s colleagues on whether a minor should be entitled to Here is what he said: ‘‘The so-called the bench have said about her opinions bypass the notice requirement, she nuclear option has been around for a I think is important. In a case dealing voted either to deny the bypass or to long time. It doesn’t take a genius to with a developer seeking to evade Aus- create greater obstacles to the bypass. figure that out.’’ He went on to explain tin’s clean water laws, her dissent was Owen wrote in dissent that she would that this constitutional option had called ‘‘nothing more than inflam- require a minor to demonstrate that been available since at least 1917, and matory rhetoric.’’ she had considered religious issues sur- he repeatedly emphasized that this tool In another case, her statutory inter- rounding the decision and that she had has been around ‘‘for a long time.’’ pretation was called ‘‘unworkable.’’ In received specific counseling from some- I appreciate this acknowledgment yet another case, the dissent she joined one other than a physician, her friend, from the Senator from West Virginia, was called ‘‘an unconscionable act of or her family. Requirements, I believe, because I know he has studied the his- judicial activism.’’ that go far beyond what the statute re- tory of the Senate, and I know he has There is another reason this nomina- quires. intimate familiarity with the workings tion is so important. This is critical to In interpreting the ‘‘best interest’’ of the Constitutional Option. There is all the nominees we are considering for arm of the statute, Owen held that a nothing new about the constitutional appointment to the Federal bench, and minor should be required to dem- option, as I discussed in my May 19 especially important for you here this onstrate that the abortion itself—not floor speech outlining the legal and morning. That is, what is the judicial avoiding notification—was in the indi- constitutional rationale for its exer- philosophy and commitment to uphold- vidual’s best interests. In this par- cise. The constitutional option is sim- ing current law as it relates to a citi- ticular case, I think she went far be- ply the Senate’s exercise of its power zen’s right to privacy. I asked Justice yond what the statue required. to define its own procedures—a power Owen at her hearing about her beliefs Where does that put us? Women in that comes directly from the Constitu- on the right to privacy. I asked her if this country rely on the right to tion and has been affirmed by the Su- she believed there was constitutional choose. It is an issue on which we have preme Court. (U.S. v. Ballin, 144 U.S. 1 right to privacy and where she found had 30 years of settled law and case (1892)) I appreciate that the Senator that right in the Constitution. precedent. In the Fifth Circuit, there has acknowledged its legitimacy. She declined at the time to answer are three States that continue to have The Senator from West Virginia also that question without the relevant unconstitutional laws on the books, argued, however, that past majority case information and precedents before and legislatures that are hostile to leaders have never used the constitu- her. When Senator FEINSTEIN followed that right to choose. The Federal tional option to ‘‘tamper’’ with ex- up with a similar question, Owen courts are the sole protector of wom- tended debate. As my May 19 state- against would not answer whether she en’s right to privacy in these states. I ment established, as did yesterday’s believes a right to privacy does exist do not believe that the rights of the statements by Senators MCCONNELL, within the Constitution. women of the Fifth Circuit can be HATCH, and BENNETT, that is not actu- The question of whether a nominee trusted to Justice Priscilla Owen. believes that the right to privacy ex- The Senate provides each of us with ally the case. ists with regard to the ability to make the procedural privilege to thoroughly The fact is that the Senator himself decisions about one’s own body is only discuss my concerns about this nomi- used the constitutional option four the tip of the privacy iceberg. I believe nee—the filibuster. The filibuster has times when serving as majority lead- that we are in an information age that been used against me on issues I care er—in one case to outright eliminate poses new challenges in protecting the deeply about, just as I have used this the filibuster for motions to proceed to right to privacy. We are facing difficult procedure when it was necessary to Executive Calendar nominations. issues including whether U.S. citizens protect the people of my state. This Moreover, in February 1979, he forced have been treated as enemy combat- body, in which I am so privileged to the minority to agree to a formal rules ants in a prison without access to serve, is more important than any one change after credibly threatening that counselor trial by jury, whether busi- of us, precisely because even one Sen- he would exercise the constitutional nesses have access to some of your ator can stand up for her state in the option. At that time, the Senator said most personal information, whether face of a powerful majority. on this floor, ‘‘if I have to be forced the Government has established a proc- This agreement, whatever else I into a corner to try for a majority ess for eavesdropping or tracking U.S. might think of it, preserves the rights vote, I will do it because I am going to citizens without probable cause, and in this body that make it unique and do my duty as I see my duty, whether whether the Government has the abil- that give it the most credibility. Each I win or lose.’’ ity to develop new software that might of us has to respect the views of the The Senate was nearly forced into a track the use of your own computer rest. When 40 of us stand together, the similar ‘‘corner’’ this week. Had Demo- and places where you might go on the other 60 must negotiate. That is crats not supported cloture on Priscilla Internet without your consent or healthy and that is what happened Owen today, then all Senators would knowledge. There are a variety of here. The rules of the Senate, and the have had to make a conclusive decision issues that are before us on an individ- existence of the Federal judiciary as to whether it should take 60 or 51 ual’s right to privacy and how that itself, pose proper checks on majority votes to confirm a judge. Instead, we right to privacy is going to be inter- and Presidential power. That is the are putting off that decision until an- preted. A clear understanding of a way it should stay. other day. nominee’s willingness to follow prece- Mr. KYL. Mr. President, I want to re- That may still come. And if it does dent on protecting privacy is a very spond to a statement that the Senior come, I hope that we hear no more talk important criterion for me, and it Senator from West Virginia made yes- of the ‘‘illegitimacy’’ of the constitu- should be a concern for all Members. terday. In his remarks, the Senator tional option. There is plenty to dis- Of course, some of my concern and conceded the legitimacy of the con- cuss as to whether exercising the op- skepticism about Justice Owen’s views stitutional option, what he called the tion is prudential in a particular case. on privacy results from the opinions ‘‘nuclear option,’’ as a way for the Sen- Some of the debate these past few days she wrote in a series of cases inter- ate to determine its practices and pro- has addressed that prudential question, preting the Texas law on parental noti- cedures. The option is, of course, the including some of the discussion from fication. In 2000 the State of Texas leader’s right to obtain a ruling from the Senator from West Virginia. But

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00022 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 May 24, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 10937 there has also been talk about the con- A number of senators focused on Justice should ask themselves one simple question: stitutional option being a case of ‘‘law- Owen’s opinion in FM Properties Operating Co. Who would you trust to analyze and deter- lessness’’ or ‘‘breaking the rules to v. City of Austin. One senator specifically mine the quality of Justice Owen’s legal change the rules.’’ The constitutional criticized her for refusing to rule that a analysis in those cases? The author of the Texas water law ‘‘was an unconstitutional Texas law—who supports Owen? Her former option is a part of Senate history. In delegation of legislative authority.’’ Yet lib- colleagues on the court, including former Senator BYRD’s words, it ‘‘has been eral attorneys regularly criticize the non- Justices Alberto Gonzales and Greg Abbott, around for a long time.’’ delegation doctrine and claim that conserv- who support her? Now-Attorney General And it will always be with us. The atives wrongly use it to invalidate laws duly Alberto Gonzales, who has testified—under constitutional option is not, as the mi- enacted by the legislature. In fact, just last oath—that he supports Justice Owen and nority leader has repeatedly insisted, month one senator criticized another nomi- that, contrary to false reports, he never ac- ‘‘off the table.’’ It is simply unneces- nee, Bill Pryor, for championing the non- cused her of ‘‘judicial activism’’? The pro- sary at present. If it becomes necessary delegation doctrine. So Justice Owen’s crit- choice Democrat law professor appointed by again, we may be called on to live up to ics seem to argue that if you support the the Texas supreme court to set up proce- our responsibilities to the Constitution nondelegation doctrine, you are out of the dures under the statute—who supports Owen, mainstream, and that if you oppose the non- and who has written: ‘‘If this is activism, and to the Senate to ensure that we re- delegation doctrine, you are out of the main- then any judicial interpretation of a stat- store our traditions and guarantee up- stream. It reminds me of a country-western ute’s terms is judicial activism’’? Or do you or-down votes to all judicial nominees song: ‘‘Darned If I Don’t, Danged If I Do.’’ trust the liberal special-interest groups who who reach the Senate floor. One senator claimed that, in Read v. Scott sharply opposed the Texas law, and never Mr. CORNYN. Mr. President, at var- Fetzer Co., Justice Owen ruled that a woman wanted that law to be enacted in the first ious times during the course of debate raped by a vacuum-cleaner salesman could place? Or the groups who literally make a in recent days over the nomination of not sue the company that had employed him living destroying the reputation of this Justice Priscilla Owen, a number of her after failing to undertake a standard back- president’s nominees? previous rulings have been badly ground check—an allegation recently articu- The attacks on these rulings by Justice Owen reminded me of what Mark Twain once mischaracterized. Last Thursday, May lated in an op-ed in Roll Call. Yet as my let- ter to the editor noted, that allegation is said: ‘‘A lie can travel halfway around the 19, I rose to speak about a number of plainly false. As the opinion joined by Jus- world while the truth is still putting on its those cases and to correct the record. tice Owen noted, ‘‘[n]o one questions that shoes.’’ But let’s keep our eye on the ball. And just this morning, I published an [the company that had hired the rapist] is The American people know a controversial op-ed in National Review Online to fur- liable.’’ The justices simply disagreed on ruling when they see one—whether it’s the ther rebut these baseless criticisms. I whether another company—one that had not redefinition of marriage, or the expulsion of ask unanimous consent that an excerpt hired the rapist and had no relationship with the Pledge of Allegiance and other expres- of that op-ed be printed in the RECORD. the rapist—should also have been held liable. sions of faith from the public square—wheth- There being no objection, the mate- Justice Owen was also criticized for her er it’s the elimination of the three-strikes- rial was ordered to be printed in the ruling in Hyundai Motor Co. v. Alvarado. In and-you’re out law and other penalties that case, an automobile alleged to be defec- against convicted criminals, or the forced re- RECORD, as follows: tive had in fact fully satisfied the federal moval of military recruiters from college It is now conceded that Justice Owen, Jus- standard then in effect. The plaintiff chose campuses. Justice Owen’s rulings fall no- tice Brown, and Judge Pryor all deserve up- to sue anyway, despite federal law. Justice where near this category of cases. There is a or-down votes. I happen to know personally Owen simply held that Congress had forbid- world of difference between struggling to in- that the case against Justice Owen was espe- den such lawsuits once the federal standard terpret the ambiguous expressions of a legis- cially weak, because I know Priscilla person- had been met—a technical legal doctrine lature, and refusing to obey a legislature’s ally from our service together on the Texas known as federal preemption. For this, she directives altogether. supreme court. Just consider the following was sharply criticized. Yet her opinion sim- Thankfully, the Senate has now effectively litany of supposedly ‘‘out of the main- ply followed the ‘‘solid majority of the acknowledged this important distinction, by stream’’ rulings for which she was criticized: courts to consider this issue’’—including guaranteeing Justice Owen an up-or-down A number of senators criticized Justice precedents authored by judges appointed by vote after four long years. Owen’s opinion in Montgomery Independent President Jimmy Carter. Moreover, the U.S. School District v. Davis. One senator specifi- I yield the floor and I suggest the ab- Supreme Court later adopted Justice Owen’s cally attacked her for failing to protect a sence of a quorum. approach (Geier v. American Honda Motor Co., teacher who was ‘‘wrongly dismissed.’’ The The PRESIDING OFFICER. The Inc.), in an opinion authored by Clinton ap- case involved the authority of a local school pointee, and former Democrat chief counsel clerk will call the roll. board to dismiss a poorly performing and The legislative clerk proceeded to abusive teacher. The teacher had admitted of the Senate Judiciary Committee, Justice Stephen Breyer. call the roll. that she had referred to her students as ‘‘lit- Mr. INHOFE. Mr. President, I ask tle s***s.’’ When confronted, the teacher jus- Justice Owen was likewise criticized for tified the use of the expletive on the bizarre her rulings in Quantum Chemical Corp. v. unanimous consent that the order for ground that she used exactly the same lan- Toennies, a case involving a Texas civil- the quorum call be rescinded. guage when talking to her own children. The rights law expressly modeled after Title VII The PRESIDING OFFICER. Without teacher regularly insulted parents as well. of the federal Civil Rights Act of 1964, and objection, it is so ordered. The opinion joined by Justice Owen con- City of Garland v. Dallas Morning News, a Mr. INHOFE. What is the regular Texas open-government law modeled after cluded that the school board was authorized order? to dismiss this teacher. It noted that the ma- the federal Freedom of Information Act. Once again, all she did was follow precedents The PRESIDING OFFICER. The Sen- jority’s ruling ‘‘allows a state hearing exam- ate business is the nomination of Pris- iner to make policy decisions that the Legis- adopted by appointees of Presidents Carter lature intended local school boards to and Clinton. cilla Owen to be United States Circuit make,’’ and that the majority had ‘‘misinter- Justice Owen and I happened to disagree in Court Judge. preted the Education Code.’’ Weiner v. Wasson, a case involving a tech- Mr. INHOFE. I ask unanimous con- One senator attacked Justice Owen for her nical matter of applying a statute of limita- sent I be allowed to speak as in morn- opinion in Texas Farmers Insurance Co. v. tions to a medical malpractice suit. One sen- ing business for such time as I con- Murphy. In this case, Justice Owen simply ator argued that my opinion was ‘‘a lecture sume. to the dissent’’ about the importance of stare joined an opinion holding that neither an ar- The PRESIDING OFFICER. Without sonist nor his spouse should benefit from his decisis and following precedent. The argu- crime by recovering insurance proceeds. The ment is baseless. In fact, Justice Owen didn’t objection, it is so ordered. opinion followed two unanimous decisions of try to overturn precedent in that case; only GLOBAL WARMING the Fifth Circuit, the very court to which the defendant did. Moreover, Justice Owen’s Mr. INHOFE. Mr. President, over the Justice Owen has been nominated. ruling contained an equally emphatic ‘‘lec- past few weeks, I have debunked the Justice Owen was also criticized for a rul- ture’’ to the defendant about the importance notion of scientific consensus about ing she and I both joined in Peeler v. Hughes of following precedent. global warming. The claim there is & Luce and Darrell C. Jordan—in which we And of course, there were the now-famous simply held that an admitted criminal could cases involving the popular Texas parental- consensus rests on four fundamental not benefit from criminal activity by suing notification law—a parental-rights law that pillars. My previous talks made clear the criminal-defense attorney for mal- generally requires minors to notify one par- that the first three pillars are made of practice. ent before obtaining an abortion. Readers sand.

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00023 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 10938 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 May 24, 2005 It is not true, for example, that the Quoting from him: would cost the average family of four National Academy of Sciences believes While the models differ in their projections some $2,700 a year. So it is a very sig- the science of climate change is set- of some of the features of climate change, nificant thing. tled. In fact, the report is replete with they are all in agreement that the world will Now note, too, the distinction be- caveats, warning the reader of the warm significantly as a result of human ac- tween ‘‘project’’ and ‘‘predict.’’ The many uncertainties associated with tivities, and that the Arctic is likely to expe- alarmist writer noted earlier creates claims of global warming. Yet advo- rience noticeable warming, particularly the misimpression that a projection is early and intensely. cates continue to recite small excerpts more solid than a prediction. But a while ignoring the caution about un- Similarly, the IPCC, which I also dis- projection is the output of a model cal- certainties contained within the same cussed in the earlier talks, relied on culation. Put another way, it is only as paragraph or even the same science. such earlier models to project a long- good as the model’s equations and in- It is also not true that the second pil- term temperature increase ranging puts. As we will see later in this pres- lar, the U.N. science report known as from 2.5 to 10.4 degrees Celsius and as- entation, such inputs or assumptions the IPCC, proves a consensus. The flag- sorted and potentially dangerous cli- about the future can be extremely ship study on which the IPCC report mate changes over the next century. flawed, if not totally divorced from re- relies, known as the hockey stick, According to Dr. Kenneth Green, Dr. ality. And this, to be sure, is only one which shows an unprecedented rise in Tim Ball, and Dr. Steven Schroeder, of the many technical shortcomings 20th century temperatures, has been the politicians clearly do not realize that limit the scientific validity of cli- thoroughly discredited by scientists on that the major conclusions of the mate modeling. both sides of the debate. In fact, re- IPCC’s reports are not based on hard Unfortunately, rarely does any scru- cently, and since 1999, there hasn’t evidence and observation but, rather, tiny accompany model simulations. been anyone who has agreed there is largely upon the output of assumption- But based on what we know about the authenticity to the issue. In addition, driven climate models. physics of climate models, as well as the U.N. report relies on an explosive The alarmists cite the results of cli- the questionable assumptions built increase in emissions from poor coun- mate models as proof of the cata- into the models themselves, we should tries over the next century based on strophic warming hypotheses. Consider be very skeptical of their results. This the political decision by the report’s one alarmist’s description, who wrote is exactly the view of the National author that countries such as Algeria recently: Academy of Sciences. According to the will be as wealthy or wealthier than Drawing on highly sophisticated computer NAS: models, climate scientists can project, not the United States. Climate models are imperfect. Their sim- The third pillar, supposedly proving predict, how much temperatures may rise by say 2100 if we carry on with business as ulation skill is limited by uncertainties in that the science is settled that the Arc- usual. their formulation, the limited size of their tic is melting, is based on political calculations, and the difficulty of inter- science. Arctic temperatures are no He continues: preting their answers that exhibit as much warmer than they were in the 1930s. Although scenarios vary, some get pretty complexity as in nature. Similarly, the thickness of the Arctic severe, and so do the projected impacts of At this point, climate modeling is climate change, rising sea levels, species ex- still a very rudimentary science. As glaciers and the sea ice appears to vary tensions, glacier melting and so forth. naturally by as much as 16 percent an- Richard Kerr wrote in Science maga- nually. It sounds pretty scary, but the state- zine: ment is completely false. It sheds no These and other factors which the Climate forecasting, after all, is still in its alarmists find inconvenient would light on the likelihood or reliability of infancy. such projections. If, for example, a seem to indicate that projections of an Models, while helpful for scientists in Arctic climate catastrophe are specula- model shows a significant temperature increase over the next 50 years, how understanding the climate system, are tive, at best. far from perfect. According to cli- Today I conclude the series on the much confidence do we have in that projection? Attaching probabilities to matologist Gerald North of Texas A&M four pillars of climate alarmists by dis- University: cussing the problems associated with model results is extremely difficult and It’s extremely hard to tell whether the global climate models. rife with uncertainties. In the 2000 edition of ‘‘Nature,’’ four models have improved; the uncertainties are Let me begin by briefly explaining large. the climate models and how they func- climate modelers noted that: Or as climate modeler Peter Stone of tion. Climate models help scientists de- A basic problem with all such predictions the Massachusetts Institute of Tech- scribe changes in the climate system. to date has been the difficulty of providing nology put it: They are not models in the conven- any systematic estimate of uncertainty. tional sense; that is, they are not phys- This problem stems from the fact The major [climate prediction] uncertain- ties have not been reduced at all. ical replicas. Rather, they are mathe- that: matical representations of the physical These [climate] models do not necessarily Based on these uncertainties, cloud laws and processes that govern the span the full range of known climate system physicist Robert Charlson, professor Earth’s climate. According to Dr. behavior. emeritus at the University of Wash- David Legates of the University of According to the National Academy ington-Seattle, has concluded: Delaware, climate models ‘‘are de- of Sciences: To make it sound like we understand cli- signed to be descriptions of the full . . . without an understanding of the sources mate is not right. three-dimensional destruction of the and degree of uncertainty, decision-makers This is not to deny that climate mod- earth’s climate.’’ Dr. Legates claims could fail to define the best ways to deal eling has improved over the last three models are used ‘‘in a variety of appli- with the serious issue of global warming. decades. Indeed, scientists have con- cations, including the investigation of This fact should temper the enthu- structed models that more accurately the possible role of various climate siasm of those who support Kyoto-style reflect the real world. In the 1970s, forcing mechanisms and the simulation regulations that will harm the Amer- models were capable only of describing of past and future climates.’’ ican economy. the atmosphere, while over the last few Thousands of climate changes stud- Previously, we have talked about the years models can describe, albeit inad- ied rely on computer models. The Arc- harm to the economy and have referred equately, the atmosphere, land surface, tic Council, whose work I addressed to the Wharton Econometric Survey oceans, sea ice, and other variables. last week, stated that arctic warming which was conducted by the Wharton But greater complexity does not and the impact stemming from that School of Economics. It gets into a lot mean more accurate results. In fact, warming are firmly established by of detail as to what is going to happen. the more variables scientists incor- computer models. For example, to comply with Kyoto, it porate, the more uncertainties arise.

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00024 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 May 24, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 10939 Dr. Syukuro Manabe, who helped cre- than at the surface, creating the so- Another serious model limitation ate the first climate model that cou- called greenhouse ‘‘fingerprint.’’ But concerns the interaction of clouds and pled the atmosphere and oceans, has the National Research Council believes water vapor with the climate system. observed: real-world temperature observations Dr. Richard S. Lindzen, professor of Models that incorporate everything from tell a different story. meteorology at MIT, reports of ‘‘ter- dust to vegetation may look like the real In January of 2000, the NRC panel ex- rible errors about clouds in all the world, but the error range associated with amined the output from several cli- models.’’ He noted that these errors the addition of each new variable could re- mate models to assess how well they ‘‘make it impossible to predict the cli- sult in near total uncertainty. This would mimicked the observed surface and mate sensitivity because the sensi- represent a paradox: The more complex the lower atmospheric temperature trends. tivity of the models depends primarily models, the less we know. They found that: on water vapor and clouds. Moreover, if We are often reminded that the IPCC Although climate models indicate that clouds are wrong,’’ Dr. Lindzen said, used sophisticated modeling techniques changes in greenhouse gases and aerosols ‘‘there’s no way you can get water in projecting temperature increases for play a significant role in defining the vapor right. They’re both intimately the coming century. But as William vertical structure of the observed atmos- tied to each other.’’ O’Keefe and Jeff Kueter of the George phere, model-observation discrepancies indi- In fact, water vapor and clouds are C. Marshall Institute pointed out in a cate that the definitive model experiments the main absorbers of infrared radi- recent paper: have not been done. ation in the atmosphere. Even if all The complex models envisioned by the John Wallace, the panel chairman other greenhouse gases, including car- IPCC have many more than twenty inputs, and professor of atmospheric sciences bon dioxide, were to disappear, we and many of those inputs will be known with at the University of Washington, put it would still be left with over 98 percent much less than 90 percent confidence. more bluntly. He said: of the current greenhouse effect. But Also, tinkering with climate vari- There really is a difference between tem- according to Dr. Lindzen, ‘‘the way ables is a delicate business—getting peratures at the two levels that we don’t current models handle factors such as one variable wrong can greatly skew fully understand. clouds and water vapor is disturbingly model results. Dr. David Legates has More recently, researchers at the arbitrary. In many instances the un- noted that: University of Colorado, Colorado State derlying physics is simply not known.’’ Anything you do wrong in a climate model University, and the University of Ari- Dr. Lindzen notes that this is a sig- will adversely affect the simulation of every zona, examined the differences between nificant flaw, because ‘‘a small change other variable. real-world temperature observations in cloud cover can strongly affect the Take precipitation, for example. As with the results of four widely used cli- response to carbon dioxide.’’ He further Dr. Legates noted: mate models. They probed the fol- notes, ‘‘Current models all predict that Precipitation requires moisture in the at- lowing question: Do the differences warmer climates will be accompanied mosphere and a mechanism to cause it to stem from uncertainties in how green- by increasing humidity at all levels.’’ condense (causing the air to rise over moun- house gases and other variables affect Such behavior ‘‘is an artifact of the tains, by surface heating, as a result of the climate system or by chance model models since they have neither the weather fronts, or by cyclonic rotation). Any fluctuations; that is, the variability physics nor the numerical accuracy to errors in representing the atmospheric mois- caused by the model’s flawed represen- deal with water vapor.’’ ture content or precipitation-causing mecha- tation of the climate system? I think sometimes you have to look nisms will result in errors in the simulation As it turned out, neither of these fac- at the science and the contradictions, of precipitation. tors was to blame. According to the re- and even if we don’t thoroughly under- Dr. Legates concluded: searchers: stand what these people are saying, the Clearly, the interrelationships among the Significant errors in the simulation of fact is, they contradict each other. various components that comprise the cli- globally averaged tropospheric temperature Sometimes you have to go back and mate system make climate modeling dif- structure indicate likely errors in tropo- look at reality. If they say the increase ficult. spheric water-vapor content and therefore in the use of carbon dioxide and the The IPCC, in its Third Assessment total greenhouse-gas forcing, precipitable presence of it is the major thing caus- Report, noted this problem, and many water, and convectively forced large-scale ing anthropogenic gases and global others, with climate modeling, includ- circulation. warming temperatures, look at what ing—this is a quote from their report; Moreover, based on the ‘‘significant happened right after the war. After the the very basis that many of the alarm- errors of simulation,’’ the researchers war, they increased the use of CO2 by 85 ists are basing their decisions on: called for ‘‘extreme caution in applying percent. You would think that would Discrepancies between the vertical profile simulation results to future climate- precipitate a warmer period, but it of temperature change in the troposphere change assessment activities and to at- didn’t. It precipitated a cooling period. seen in observations and models. tributions studies. When you get back to the arguments Large uncertainties in estimates of inter- They also questioned ‘‘the predictive and discrepancies, they agree there are nal climate variability (also referred to as ability of recent generation model sim- problems. natural climate variability) from models and ulations, the most rigorous test of any Along with water vapor and clouds, observations. hypothesis.’’ aerosols, or particles from processes Considerable uncertainty in the recon- structions of solar and volcanic forcing There does not seem to be much wig- such as dust storms, forest fires, the which are based on limited observational gle room here: Climate models are use- use of fossil fuels, and volcanic erup- data for all but the last two decades. ful tools, but unable, in important re- tions, represent another major uncer- Large uncertainties in anthropogenic spects, to simulate the climate system, tainty in climate modeling. To be sure, forcings associated with the effects of undermining their ‘‘predictive ability.’’ there is limited knowledge of how aerosols. Based on this hard fact, let me bring aerosols influence the climate system. Large differences in the response of dif- you back to the alarmist writer I ref- This, said the National Academy of ferent models to the same forcing. erenced earlier. As he wrote recently: Sciences, represents ‘‘a large source of I want to delve a little deeper into Drawing on highly sophisticated computer uncertainty about future climate the first point concerning the discrep- models, climate scientists can project—not change.’’ ancies between temperature observa- predict—how much temperature may rise by, Further, the Strategic Plan of the tions in the troposphere and the sur- say, 2100, if we carry on with business as U.S. Climate Change Science Program, face. This discrepancy is very impor- usual. CCSP, which was reviewed and en- tant because it tends to undermine a Again, based on what I have just re- dorsed by the National Research Coun- key assumption supporting the warm- counted, this is disingenuous at best. I cil, concluded that the ‘‘poorly under- ing hypothesis—that more rapid warm- think a fairminded person would find it stood impact of aerosols on the forma- ing should occur in the troposphere horribly misleading and inaccurate. tion of both water droplets and ice

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00025 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 10940 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 May 24, 2005 crystals in clouds also results in large scenarios that, to put it mildly, have Michael Mann, the guy who invented uncertainties in the ability to project little scientific merit. In 2003, sci- the hockey-stick theory, where he was climate changes.’’ entists with the Federal Climate measuring the Earth’s temperatures, Climate researcher and IPCC re- Change Science Program agreed that we come into the 20th century—and viewer Dr. Vincent Gray reached an potential environmental, economic, that is the blade on the hockey stick— even stronger conclusion, stating that and technological developments ‘‘are he intentionally left out the fact that ‘‘the effects of aerosols, and their un- unpredictable over the long time-scales between the years 700 A.D. and 1100 certainties, are such as to nullify com- relevant for climate research.’’ A.D., there is another blade on the pletely the reliability of any climate William O’Keefe and Jeff Keuter of hockey stick that went up the other models.’’ the George C. Marshall Institute reiter- way and temperatures were warmer Another issue affecting model reli- ated this point recently. As they wrote, than they are today. ability is the relative lack of available ‘‘The inputs needed to project climate If you read the Wharton Econo- climate data, something the National for the next 100 years, as is typically metrics Survey, you will realize what Research Council addressed in 2001. Ac- attempted, are unknowable. Human will happen to America if we were to cording to the NRC, ‘‘[a] major limita- emissions of greenhouse gases and sign on to this, the economic damage tion of these model forecasts for use aerosols will be determined by the we would have to sustain, the fact it around the world is the paucity of data rates of population and economic would double the cost of energy, double available to evaluate the ability of growth and technological change. Nei- the cost of gasoline to run our cars, coupled models to simulate important ther of these is predictable for more and it would cost the average Amer- aspects of past climate.’’ than a short period into the future.’’ ican family $2,700, and you have to ask There is plenty of evidence to sup- Put simply, computer model simula- the question: If the science is not real port this conclusion. Consider, for ex- tions cannot prove that greenhouse gas and it would inflict that much danger, ample, that most of the surface tem- emissions will cause catastrophic glob- what is the reason we are doing it? perature record covers less than 50 al warming. Again, here’s the National I think we can find the answer in years and only a few stations are as Academy of Sciences: ‘‘The fact that quoting from Margot Wallstrom. Mar- much as 100 years old. The only reli- the magnitude of the observed warming got Wallstrom is the European Union’s able data come from earth-orbiting is large in comparison to natural varia- Environment Commissioner. She states satellites that survey the entire atmos- bility as simulated in climate models that Kyoto is not about climate phere. Notably, while these tempera- is suggestive of such a linkage, but it change, it is ‘‘about leveling the play- ture measurements agree with those does not constitute proof of one be- ing field for big businesses worldwide.’’ One of your favorite people, I am taken by weather balloons, they dis- cause—and this is a point I want to em- sure, French President Jacques Chirac, agree considerably with the surface phasize—the model simulations could in a speech during The Hague in 2000, record. be deficient in natural variability on said that Kyoto represents ‘‘the first There is also concern of an upward the decadal to century time scale.’’ component of an authentic global gov- bias in the surface temperature record, It’s clear that climate models, even caused by the ‘‘urban heat island ef- ernance.’’ with increasing levels of sophistica- I think we have had an opportunity fect.’’ Most meteorological stations in tion, still contain a number of critical to discuss this over and over, and it is Western Europe and eastern North shortcomings. With that in mind, pol- somewhat warming to me to realize America are located at airports on the icymakers should reject ridiculous that things are not getting that much edge of cities, which have been envel- statements that essentially equate cli- warmer, and if that is happening, the oped by urban expansion. In the May mate model runs with scientific truth. science is not showing it is due to an- 30, 2003, issue of Remote Sensing of En- As I discussed today, climate mod- thropogenic gases. vironment, David Streutker, a Rice eling is in its infancy. It cannot predict Consequently, we as policymakers, University researcher, found an in- future temperatures with reasonable have to look at this and be sure before crease in the Houston urban heat is- certainty that these predictions are ac- we make any rash decisions that the land effect of nearly a full degree Cel- curate. The physical world is exceed- science is there. Clearly, the science is sius between 1987 and 1999. This study ingly complex, and the more complex not there. confirmed research published in the the models, the more potential errors Mr. President, I yield the floor and March 2001 issue of Australian Mete- are introduced into the models. We un- suggest the absence of a quorum. orological Magazine, which docu- derstand little about how to accurately The PRESIDING OFFICER. The mented a significant heat island effect model the troposphere and about the clerk will call the roll. even in small towns. role of aerosols, clouds and water The assistant legislative clerk pro- Although climate modelers have vapor. Moreover, there are enormous ceeded to call the roll. made adjustments to compensate for data gaps in the very short tempera- Mr. HARKIN. Mr. President, I ask the urban heat island effect, other re- ture records that we have. And surface unanimous consent that the order for searchers have shown such adjustments data often conflict with more accurate the quorum call be rescinded. are inadequate. University of Maryland balloon and satellite data. The PRESIDING OFFICER. Without researchers Eugenia Kalnay and Ming Models can enhance scientists’ under- objection, it is so ordered. Cai, in Nature magazine, concluded standing of the climate system, but, at STEM CELL RESEARCH that the effect of urbanization and least at this point, cannot possibly Mr. HARKIN. Mr. President, the land-use changes on U.S. average tem- serve as a rational basis for policy- House of Representatives just minutes peratures is at least twice as large as making. It seems foolish in the ex- ago took a historic stand on behalf of previously estimated. treme to undermine America’s eco- the millions of Americans who can ben- Finally, to expand on a point I raised nomic competitiveness with policies efit from the enormous promise of stem earlier, climate models are helpful in based on computer projections about cell research. By a vote of 238 yeas to creating so-called ‘‘climate scenarios.’’ what the world will look like in 100 194 nays, the House passed H.R. 810. I These scenarios help scientists describe years. In short, we have no idea what congratulate both Congressman CAS- how the climate system might evolve. the world will look like in 20 years, or TLE, a Republican from Delaware, and To arrive at a particular scenario, sci- even 10 years. Congresswoman DEGETTE, a Democrat entists rely on model-driven assump- So this concludes the fourth of the from Colorado, who led a bipartisan ef- tions about future levels of economic pillars of climate alarmists, hopefully fort in this regard to have this very growth, population growth, greenhouse just to show the science is flawed. historic vote in the House of Rep- gas emissions, and other factors. How- I think it is clear, as I mentioned a resentatives. ever, as with the IPCC, these assump- minute ago, that the science is not Indeed, a bipartisan majority re- tions can create wildly exaggerated there. Since 1999, the old argument of jected the restrictive policies of this

VerDate Sep 11 2014 14:05 Jan 25, 2017 Jkt 000000 PO 00000 Frm 00026 Fmt 0686 Sfmt 0634 E:\FDSYS\2005BOUNDRECORD\BOOK8\NO_SSN\BR24MY05.DAT BR24MY05 May 24, 2005 CONGRESSIONAL RECORD—SENATE, Vol. 151, Pt. 8 10941 administration and voted to expand the telescopes. We do not require our ge- Mr. FRIST. I ask unanimous consent number of stem cell lines that are eli- ologists to study the Earth with a tape that the order for the quorum call be gible for federally funded research. In measure. If we are serious about real- rescinded. doing so, they have brought new hope izing the promise of stem cell research, The PRESIDING OFFICER. Without to Americans who suffer from diseases our biomedical researchers need access objection, it is so ordered. such as Parkinson’s and juvenile diabe- to the best stem cell lines available. Mr. FRIST. I ask unanimous consent tes, ALS, as well as spinal cord inju- I also emphasize that none of the ad- that when the Senate resumes consid- ries. ditional lines would require the cre- eration of the Owen nomination tomor- Now it is up to us in the Senate to ation of any new embryos. Instead, row morning, the time until 12 noon be pass the same bill without amendments these lines could be derived from any of equally divided between the two lead- so we can send it to the President’s the more than 400,000 embryos that re- ers or their designees; provided further desk as soon as possible. The American main from fertility treatments and that at noon, all time be expired under people cannot afford to wait any longer will otherwise be discarded. We are rule XXII and the Senate proceed to for our top scientists to realize the full talking about embryos that are going the vote on the confirmation of the potential of stem cell research. to be thrown away, legally. Should we nomination with no intervening action Regrettably, research has been sty- not use them instead to ease human or debate; and provided further, fol- mied and slowed under the President’s suffering? lowing that vote, the President be im- stem cell policy. When President Bush Think about this: We have 400,000 fro- mediately notified of the Senate’s ac- announced his policy, the administra- zen embryos left over from in vitro fer- tion. tion said that 78 stem cells lines were tilization. When a woman who has been The PRESIDING OFFICER. Without eligible for federally funded research, a donor of these eggs notifies that they objection, it is so ordered. meaning they had to be derived before are no longer wanted, that she is not f the totally arbitrary date and time of going to use them—maybe she has al- MORNING BUSINESS August 9, 2001, at 9 p.m. Why it was ready had a child or two and does not permissible to use stem cell lines de- Mr. FRIST. I ask unanimous consent need these embryos—that person can there now be a period of morning busi- rived before 9 p.m. but not at 9:01 or give permission to discard them. Why 9:05 p.m. has always eluded me. Again, ness with Senators permitted to speak should that person not be able to give for up to 10 minutes each. it is just an arbitrary time and date. permission to allow them to be used by The administration said there were The PRESIDING OFFICER. Without our top scientists for stem cell re- 78 stem cell lines, but now we know objection, it is so ordered. search that could then save other today that only 22 of those are avail- f lives? That is what some people are able for research, not nearly enough to asking us to do—just throw them away, HONORING OUR ARMED FORCES reflect the genetic diversity that sci- do not let them be used for research entists need. But more importantly, all MARINE CORPORAL TODD GODWIN that could save human suffering and 22 stem cell lines—all 22—that are Mr. DEWINE. Mr. President, I rise save human lives. To this Senator, that available under the President’s policy this afternoon to pay tribute to an ex- simply does not make any sense. are contaminated with mouse feeder ceptional young man who gave his life So as I said, we have strict ethical cells, making them useless for humans. in the defense of freedom. Marine Cpl So the President’s policy is not a way guidelines that are set up so that they Todd Godwin, from Zanesville, OH, died forward; it is, indeed, a dead-end street. cannot be used for cloning, they cannot on July 20, 2004, when the Humvee he It offers only false hope to the millions be used for other things; only to derive was riding in was struck by shrapnel of people across this country who are the stem cells. That is all. If there is a from a roadside explosive in the Al suffering from diseases that could be person who can give the authority Anbar province in Iraq. He was 21 years potentially cured or treated through right now to the in vitro fertilization old. stem cell research. clinic to discard them, why should that CPL Godwin was a sniper with the 1st We need a policy that offers true, person not have the right to say, No, Battalion, 8th Marines, 2nd Marine Di- meaningful hope to these patients and use those frozen embryos to derive vision and was on his second tour-of- their loved ones. That is why Senator stem cells so that someone with a spi- duty in Iraq. Always ready with a SPECTER and I, along with Senators nal cord injury might walk again, so smile or a joke, Todd was an easy HATCH, FEINSTEIN, SMITH, and KEN- that someone with ALS can escape the going, respectful person with a big NEDY, introduced a companion bill to death sentence, so that someone with heart. He was also a Marine through the Castle-DeGette legislation that Parkinson’s can be returned to normal and through—something he took very just passed the House. Our bill expands functioning? seriously—something he had been the number of stem cell lines that fed- The House performed a great public training for his whole life. erally funded scientists can study by service today. I thank both sides of the Born on March 4, 1983, to Bill and lifting the arbitrary eligibility date of aisle, Republicans and Democrats, who Kathy Godwin, Todd was an alert, ener- August 9, 2001. stepped up and voted for this bill. By getic child who grew up with an inter- Under our legislation, all stem cell passing the Castle-DeGette bill, they est in the military. His father remem- lines would be eligible for Federal re- have given hope to millions of suffering bers him playing with G.I. Joes, wear- search regardless of the date they were humans that we will indeed proceed ing fatigues, and simulating wars. Ac- derived, as long as they met strict eth- with stem cell research that will al- cording to his brother, Aaron, the two ical requirements. leviate their suffering. It is now time boys would hang dolls outside and Since August of 2001, scientists have for the Senate to act. shoot at them with a BB gun, honing made great strides and great advances So together with Senator SPECTER, their targeting skills. in deriving stem cell lines. Many of the we are going to urge the majority lead- Apart from these activities, Todd new lines were grown without mouse er to bring up the bill as soon as pos- sought to perfect his body. He could feeder cells. So I ask, should not our sible and let us have a vote in the Sen- often be found working out at ‘‘the top scientists be studying those lines ate and get this bill to the President so Fieldhouse’’ fitness center or prac- that have great potential and which we can move ahead with embryonic ticing his Tae Kwon Do, for which he could be used to alleviate human suf- stem cell research in this country. received two black-belts. Whether in- fering, instead of being limited to the I yield the floor, and I suggest the ab- tentional or not, Todd seemed to be 22 cell lines contaminated with mouse sence of a quorum. grooming himself for the military, ac- cells that will never be used in hu- The PRESIDING OFFICER. The quiring a host of skills that would mans? clerk will call the roll. serve him well in the Marines. We do not require our astronomers to The assistant legislative clerk pro- After graduating from Zanesville explore the heavens with 19th century ceeded to call the roll. Christian School in June 2001, he joined

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