George Allen

Mr. ALLEN

Mr. ALLEN. Mr. President, as in executive session, I ask unanimous consent that the nomination of Edmund S. Hawley, of California, to be Assistant Secretary of Homeland Security be referred to the Committee on Commerce, Science and Transportation, and that, further, upon the reporting out or discharge of the nomination, the nomination be referred to the Committee on Homeland Security and Governmental Affairs for a period not to exceed 30 days, after which time the nomination, if still in committee, will be discharged and placed on the Executive Calendar.

Mr. ALLEN

Mr. ALLEN. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Con. Res. 35, submitted earlier today.

Mr. ALLEN. Mr. President, I ask unanimous consent that the resolution and the preamble be agreed to en bloc; that the motion to reconsider be laid upon the table; and that any statements relating to the concurrent resolution be printed in the Record, without intervening action or debate.

Mr. ALLEN

Mr. ALLEN. Mr. President, I ask unanimous consent that the resolution and preamble be agreed to en bloc; that the motion to reconsider be laid upon the table; and that any statements relating to the resolution be printed in the Record, without intervening action or debate.

Mr. ALLEN. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 150, submitted earlier today.

Mr. ALLEN

Mr. ALLEN. Mr. President, the Senator from Illinois went on further to chastise and criticize the statements that he said were contradictory statements of Senator Frist in a filibuster, as he characterized it, in the year 2000. Now, if the senior Senator from Illinois, Senator Durbin, wants to point to prior inconsistent statements, let me refresh his memory. This is what Senator Durbin said on September 28, 1998: I think that responsibility requires us to act in a timely fashion on nominees sent before us. The reason I oppose cloture is I would like to see that the Senate shall also be held to the responsibility of acting in a timely fashion. If, after 150 days languishing in a committee there is no report on an individual, the name should come to the floor. If, after 150 days languishing on the Executive Calendar that name has not been called for a vote, it should be. Vote the person up or down. They are qualified or they are not. Those are good words from the senior Senator from Illinois in 1998. Those are the principles we are advocating now. These nominees have not been held up for just 150 days. These nominees--Priscilla Owen, Janice Rogers Brown, and others have been held up for months and years, and in Justice Owen's case, four years. Then we heard from the senior Senator from Illinois, after saying that we ought to watch our words, he called the Republicans dogs, more specifically, cocker spaniels. This was all because we vote for President Bush's nominees for judges. So we are like dogs, cocker spaniels. Let me be like an Australian shepherd and herd in the Democrats for the last few days who have been popping up like prairie dogs. We have heard this charge from others, including Senator Kennedy, Senator Murray, Senator Schumer, Senator Dorgan, and Senator Durbin, who just recently made this unsubstantiated accusation that, we just vote for all these nominations and nobody votes against any of President Bush's judicial nominees. The truth is, all of these Senators--Senators Kennedy, Murray, Schumer, Dorgan, and Durbin when it came to a straight up-or-down vote on all of President Clinton's judicial nominees, whether they were for district court, circuit court of appeals, or Supreme Court, never cast a dissenting vote--not even once. That is a lot of affirmative votes, if you ask me, for 8 years of President Clinton's nominees. Then I scoured around like a German shorthair, and let me point out what I found out from Senator Kennedy on straight up-or-down votes, not only on President Clinton's nominees, but on President Carter's judicial nominees. Senator Kennedy didn't even cast a dissenting vote on any of those nominees. To be calling Republicans ``lap dogs,'' ``rubberstamps,'' and so forth--I don't think so. Unlike Senator Durbin, we are not going to call the Democrats dogs or cocker spaniels. I think we are lucky dogs that President Bush has examined some outstanding nominees from coast to coast, outstanding men and women who are willing to serve at the circuit court level, which is a very important level of appeals in this country. He has nominated well-qualified nominees for the circuit court, such as Miguel Estrada. When you talk about qualifications, Miguel Estrada received the highest possible rating unanimously from the American Bar Association and although we had, on five or six occasions, 55, 56 votes, he was denied the opportunity of a fair up-or-down vote. Finally, his life could not continue in such limbo and he withdrew his nomination. Priscilla Owen, a justice of the Supreme Court of Texas, another outstanding nomination from President Bush, the person we are actually debating right now, received the highest level of endorsement from the American Bar Association, a unanimous, well-qualified. Justice Owen was elected to the Supreme Court of Texas in 1994 and was reelected with 84 percent of the vote in Texas in the year 2000. This is a person well qualified, well respected in her State. Janice Rogers Brown, another great American life story of someone who is the daughter of a sharecropper in segregated Alabama, moved to California, ended up being the first African American on the Supreme Court of California, the largest State in our Nation. She is one who has been characterized as a brilliant and fair jurist who is committed to the rule of law. The Chief Justice of the California Supreme Court called on her to write the majority opinion more times in 2001 and 2002 than any other justice of the supreme court. In California, judges are elected rather than appointed and in the most recent election, Justice Brown received 76 percent of the vote, which was the largest margin of any of the four justices up for retention that year in California, which is not a strong red State. In fact, it is kind of a pale-blue State. Nonetheless, she received 76 percent of the vote in California. This individual, Janice Rogers Brown, is having to go through these sort of accusations against her. She is well respected, and she is certainly within the mainstream. I hope these rebuttals will shed some light on the reality of what is going on here. What we are simply trying to do is accord these nominees the fairness of an up-or-down vote. People in the real world probably do not understand this process. They do not understand why a nominee who has majority support cannot be accorded the fairness of a vote. The people of America understand courtesy, and they understand due process. They understand the bump and run and activity that one will have and statements that might be made, and you can have some fun talking about dogs, and so forth. But ultimately, once you go through all the histrionics, aspersions, characterizations, rebuttals, and setting the record straight, ultimately what we ought to do as Senators is our job and our duty. This is what the people of America in our respective States have asked us to do. I really do not think it is too much for us to get off our haunches, show some spine, show some backbone, vote yes, vote no on these nominees, and then you can explain to your constituents back in New Jersey or Illinois or South Dakota or Virginia why you voted the way you did. What we need to do is truly take the politics out of this process. It is harmful that this has become so politicized in the last several years. It is an issue I know is very important to the American people. They recognize President Bush has a philosophy--and it is one that I share--that judges ought to apply the law, not invent the law, and that he has found and sought out men and women of diverse background to bring their experiences, but also their fundamental belief of what the proper role of a judge should be, and that is to listen to the evidence, apply the facts to the law as written by the legislative branch in our representative democracy, and make that ruling. These nominees are well qualified. They have gone through a lot. They are individuals. These are not just pieces of paper that you just crumble up and throw aside. These are human beings, and they should not be treated this way. If we are going to be able to attract quality men and women in the future to our Federal judgeships and Federal appointments, many giving up lives where they can make more money, certainly have less controversy, they ought not to be treated like a sheet of paper. They are human beings. Let's have our debates, have the arguments, make a judgment, and ultimately vote ``yes'' or vote ``no.'' That is what I think the American people expect out of the Senate, and it is a shame we are having to spend as much time as we are on this, but it is an important principle. It is due process, it is fairness, and it is the rule of law. I thank my colleagues. Mr. President, I yield the floor, and I suggest the absence of a quorum.

Mr. ALLEN. Mr. President, I rise to speak on this matter of judges. I was presiding the last hour and a half or so listening to some of my colleagues speak. I associate myself with the remarks of the Senator from Ohio. But I was listening to my colleagues from New Jersey and Illinois, Senator Corzine and Senator Durbin. I heard the Senator from New Jersey talking about the rights of minorities. The Senate does care about the rights of the minority. When one talks about the rights of the minority, one normally talks about ways to enhance civil rights, to make sure there is equal opportunity--that there is due process of law. Sadly, the Democrats have changed the rules. They changed 214 years of practice, which was that when a President nominated a particular person for a judicial vacancy, the Judiciary Committee would examine that individual very closely, as to their scholarship, their temperament, their judicial philosophy, and ultimately if they passed muster, that person would come to the Senate floor. Senators, for 214 years, would vote to confirm or deny confirmation to that particular nominee. That changed just 3 years ago. What is being suggested by Senator Corzine and others on the other side is that a minority of only 41 Senators should be able to deny a well-qualified nominee the fairness and the due process of an up-or- down vote on the Senate floor. These individuals are well qualified, but they are denied the opportunity of an up-or-down vote. These individuals, as Senator Voinovich said, go through a gauntlet. And when one of these nominees goes through the gauntlet, that doesn't last just months. It has been lasting for 1, 2, 3, and, in the case of Priscilla Owen, 4 years. Once you get through that gauntlet, you may be bruised and you may have some aspersions made about you and statements taken out of the record and opinions criticized and scrutinized and all the rest. At the end of the day, when a majority of the Senators are in favor of that individual and they have come out of the Judiciary Committee, they ought to be accorded the fairness, the decency, the due process of an up-or-down vote. Another statement that was made is that the Senate is to protect minority interests. Well, if one would actually read the Constitution and read the documents and the debates on the Senate, why the Senate was created the way it is and compare that to the way the House of Representatives is, one would find that the Senate is to protect the interests of the people in the States. The Senate is not representative of the population of the country, as is the House. In fact, the Senate was to serve, in many respects, as a safeguard of State prerogatives. So when the Senator from New Jersey says the Senate is created to protect minority rights, it is to protect the right of the States. Let's recall that it was the people in the States who created the Federal Government. Note the name of our country: The United States of America. In fact, the rights of the States were so closely guarded that State legislators actually selected Senators for most of the history of this country rather than the people. Let's get those facts straight. All of this sort of talk and background noise is trying to avoid the point that the Democrats' partisan obstruction of the President's nominees is unprecedented. We are trying to get back to the precedent we had for 214 years before they changed it. It is an issue of fairness. It is an issue for me as a Senator from the Commonwealth of Virginia, the State of James Madison, one of the key authors of our Constitution. It is my constitutional duty to advise and consent. What 41 Senators are trying to do is take away my responsibility to the citizens of the Commonwealth of Virginia. I see nothing wrong with voting yes or no. Now, also in the midst of this flailing and background noise, from time to time, we have heard from the senior Senator from Illinois, casting aspersions on an organization called the Federalist Society, saying because Justice Owen of Texas was a member of the Federalist Society, and that many of President Bush's nominees for the Federal courts were in the Federalist Society, he wondered what this society was all about. Well, after listening, I had my crack staff get on the Internet and get me the background on the Federalist Society. Let me share this with my colleagues regarding what is called the Federalist Society for Law and Public Policy Studies. Here is their background: Founded in 1982, the Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians dedicated to reforming the current legal order. We are committed to the principles that the State exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks to promote awareness of these principles and to further their application through its activities. It goes through its mission and says the purpose of the society is unique. They have legal experts of opposing views to interact with members of the legal profession, the judiciary, law students, academics, and the architects of public policy. They talk about appreciation of the role of separation of powers; federalism; limited constitutional Government; and the rule of law protecting individual freedom and traditional values. Overall, the Society's efforts are improving our present and future leaders' understanding of the principles underlying American law. They have a student division, and the student division has more than 5,000 law students at approximately 180 ABA-accredited law schools, including all of the top twenty law schools. They have a lawyers' division comprised of over 20,000 legal professionals and others interested in current intellectual and practical development in the law. I urge my colleague from Illinois to recognize that they have chapters in 60 cities, including Washington, DC; New York; Boston; Chicago; Los Angeles; Milwaukee; San Francisco; Denver; Atlanta; Houston; Pittsburgh; Seattle; Indianapolis, and others. They have a faculty division and more. I ask unanimous consent that this statement of the background of the Federalist Society be printed in the Record before anybody else mischaracterizes the purpose and salutary goals and mission of the Federalist Society.

Mr. ALLEN

Mr. ALLEN. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 151, which was submitted earlier today.

Mr. ALLEN. I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. ALLEN

Mr. ALLEN. Madam President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. ALLEN. Is it true that the pending business before the Senate is the nomination of Priscilla Owen and other judges?

Mr. ALLEN. Madam President, in my view there are four pillars that are absolutely essential for a free and just society. The first of those pillars is freedom of religion, where people's rights are not enhanced or diminished on account of their religious beliefs. The second pillar is freedom of expression, where people say what they want without retribution. Third is private ownership of property. And the fourth pillar for a free and just society is the rule of law, where disputes are fairly adjudicated and our God-given rights are protected. I believe it is absolutely essential that we have judges on the bench at the Federal level and indeed all levels of Government who understand that their role is to adjudicate disputes fairly and honestly, to apply to the facts and the evidence of the case the laws that were made by elected representatives. We are a representative democracy. Judges ought to apply the law, not invent the law, not serve as a superlegislature, not to use their own personal views as to what the law should be. It is absolutely essential for our country, for the rule of law, for the stability one would want for the rule of law, for the credibility and the fair administration of justice, that we have judges who understand this basic principle. When it comes to the appointment of judges and the election of judges, in some States they are elected, in some they are appointed. At the Federal level, the way it has been since the beginning of the Republic is the President nominates a man or a woman for a particular vacancy. That individual is examined very closely by the Judiciary Committee. They question and try to determine what is their temperament and what will they become once they put on a robe. Especially at the Federal level it is important because they are given lifetime appointments, so there is questioning done as to their scholarship and their judicial philosophy. That is very important. If that person passes muster in the Judiciary Committee, the procedure, for the past 200 years, was that the nominee get a favorable recommendation. Once in a while they come out of the committee with no recommendation. But ultimately what happens is 100 Senators vote. They vote up or down on these nominations. That is our responsibility. It is my responsibility to the people of the Commonwealth of Virginia who elected me to confirm judges or deny confirmation--but ultimately vote. What has happened in the last three years, though, is an abrogation of this approach and fair consideration of judicial nominees. We have seen unprecedented obstruction and a requirement, in effect, of a 60- vote margin, particularly for circuit court judges. Wendy Long, the counsel to the Judicial Confirmation Network, observed a month ago: It is abundantly clear that the American people are tired of the partisan, political maneuvering and the unwarranted character assassinations against qualified candidates for the Federal bench. She observed, and I agree: People see through these aggressive negative attacks waged by some individuals and groups on the left and they want it to end. They want Senators to do their jobs and hold a straight up-or-down vote on nominees based on their qualifications, not the baseless negative rhetoric of the left. I agree. I think the people of America believe these nominees deserve a fair vote based on their qualifications. I think my colleagues should take notice. Two of the nominees who have suffered at the hands of the opposition are Judges Priscilla Owen and Janice Rogers Brown. First, in respect to Justice Owen, I listened to the heartfelt views of Senator Hutchison of Texas about Justice Owen. Senator Hutchison knows her better than I do, but I strongly support Justice Owen; not just her nomination but her confirmation. In fact, she is arguably one of the best nominees President Bush has nominated to the appellate court. Even the American Bar Association agrees. They unanimously rated Judge Owen well qualified, their highest rating. Sadly, Justice Owen was the first unanimously approved well-qualified ABA nominee who was held up a few years ago in the Judiciary Committee. What are some of the reasons why the Democrats are opposing Justice Owen? The Number one reason I have heard is it was because of her interpretation of Texas' parental notification statute. The Democrats and her opponents have charged Justice Owen is found to be an activist in cases involving the interpretation of the Texas parental notification statute that was enacted in 1999. If you want to look at that statute, it says as follows. It requires notice to a parent when a minor woman seeks an abortion, but allows exceptions when the trial court judge concludes the minor is mature and sufficiently well informed to make the decision without notification of a parent; that notification would not be in the best interests of the minor; or that notification may lead to physical, sexual, or emotional abuse of the minor. From reading Justice Owen's opinions with respect to the statute, I found that Justice Owen interpreted the parental notice statute in Texas and its exceptions fairly and neutrally, in accord with the plain legislative language, as well as relying on precedent from the Supreme Court of the United States. She expressly relied on U.S. Supreme Court cases addressing similar laws to interpret the statutory exceptions. In fact, even the Washington Post has opined that: While some of Justice Owen's opinions--particularly on matters related to abortion--seem rather aggressive, none seems to us beyond the range of reasonable judicial disagreement. That is the Washington Post and I would hardly call the Washington Post a bastion of conservative philosophy. Justice Owen's record in these cases is far from that of an activist. In fact, it demonstrates her judicial restraint and her understanding of the proper role of an appellate judge. Under the Texas statute, the Supreme Court of Texas does not review judicial bypass cases unless the bypass has already been rejected at the trial and the intermediate appellate court level. In other words, every time Justice Owen voted to deny a judicial bypass, she was simply upholding the rulings of lower courts. That means she upheld the ruling of the trial judge, the only judge who actually saw and heard the case, a decision with which at least two out of three appellate court judges agreed. This type of deference is entirely appropriate in cases such as this, where the determination turns largely on the factual findings and the credibility of the witnesses. The trial judge who actually observes and hears the testimony of a plaintiff in a judicial bypass case is best positioned to determine the credibility of that evidence and that witness. By deferring to the trial court's judgment on factual questions, Justice Owen has appreciated, obviously, the proper role of an appellate judge. However, when a trial judge commits a clear error, Justice Owen has not hesitated to reverse the judgment and order a bypass, or remand for further proceedings, as she has done on three occasions. My colleagues, I understand this parental notification issue. As Governor of Virginia, I worked for the passage and signed Virginia's requirement to notify parents if their unwed minor daughter, 17 or younger, is planning an abortion. Opponents of this attacked me and said things very similar to what you hear about Justice Owen. They said we were trying to tear down Roe v. Wade. That is quite contrary from my standpoint. I want the record to note that Justice Owen has repeatedly demonstrated adherence to Supreme Court precedent, including Roe v. Wade. In fact, almost 80 percent of the American people believe a parental notification statute for a minor is reasonable. I asked my staff to look back in my documents to find the speech I gave before I signed the bill on March 22, 1997. Here is the reasoning that motivated me and the people of Virginia to finally pass a parental involvement measure--and I am for parental consents even better, but our statute is similar to Texas. I said on the steps of Mr. Jefferson's capital in Richmond, VA: Today we are signing legislation affirming the importance and the necessity of a parent's guidance and counsel if their young daughter is facing the trauma of an abortion. Ladies and gentlemen, parents have the right and the responsibility to be involved with important decisions in their young children's lives, especially those that affect their physical and emotional health. It was hard to get this bill passed. It was 17 years before it actually passed, a true parental notification bill. This was logical law. When one considers that for a minor to get their ears pierced, one needs parental consent, it makes a great deal of sense to me that if a young daughter, unwed, 17 or younger, is going through a trauma of abortion, a parent ought to be involved. That is what the Texas law was about. When daughters are going through this trauma, parents ought to know as opposed to being in the dark. But I want to stress that the Texas statutes and the Virginia statutes are merely parental notice statutes. Those statutes express the views of the people of the State of Texas, the Commonwealth of Virginia, and indeed the more than 40 States that have some sort of parental involvement statutes on their books. In fact, they reflect the views of this country. In fact, they believe what Justice Owen was doing was correct in applying this statute as she did. In summation, Justice Owen is a person with outstanding qualifications. She graduated at the top of her class at the Baylor Law School and subsequently earned the highest score in the State on the December 1977 Texas Bar Exam. After graduation she practiced commercial litigation for 17 years and became a partner at one of the most respected law firms in the State of Texas. Finally, in 1994, Justice Owen was elected to the Texas Supreme Court. In 2000, she won reelection by an overwhelming 84 percent of the vote, and was endorsed by every major newspaper in Texas. Her support is wide and it is bipartisan, ranging from a number of former Democratic judges on the Supreme Court of Texas to a bipartisan group of 15 past presidents of the State Bar of Texas. It is important that we act on Justice Owen's nomination because the Judicial Conference of the United States has designated the seat Justice Owen is nominated for as a judicial emergency. Justice Owen is well qualified to be a judge on the Fifth Circuit Court of Appeals, and the longer the opposition keeps holding up this nomination--and this has been going on now for 4 years--the longer average citizens will have to wait to have their cases heard. She deserves a fair up-or-down vote. With respect to Justice Janice Rogers Brown, she has been nominated by the President to the U.S. Court of Appeals for the DC Circuit, where currently one-fourth of that court is vacant. Her qualifications are impeccable. In the past years I talked about Miguel Estrada, another outstanding nominee who had unanimous support, the highest recommendation from the American Bar Association, and who was denied, year after year, the fairness of an up-or-down vote. He was a modern- day Horatio Alger story. Justice Brown is an American success story as well. She reflects the fact that with hard work and determination you can succeed if you put your mind to it. Her rise from the humble beginnings she had in the segregated South to becoming the first African-American woman to serve on the highest court in the largest State in the country is truly an inspiring American success story. In her 9 years on the California Supreme Court, Justice Brown has earned the reputation of being a brilliant and fair jurist who is committed to the rule of law. That reputation has returned her to the court when she was supported by 76 percent of California voters, which was the largest margin of any of the four justices up for retention that year. Her reputation has also led the Chief Justice of the California Supreme Court to call on Justice Brown to write the majority opinion more times, in 2001 and 2002, than any other justice on the Supreme Court of California. When someone gets 76 percent of the vote and is called on to write the majority opinion more times than any other justice on that court, that means you are well respected and you are doing a good job and that you are clearly within the mainstream, not out of the mainstream as is asserted by those who obstruct her vote. Justice Brown's opponents would like the American people to think she is a radical, an ideological extremist in her opposition to government. I contend if she was so extreme, why did 76 percent of California voters support her? Sadly, her opponents continually attack her for her opposition to government even though she has stated for the record that she does not hate government. If she hates government, why is she a part of it? A thorough analysis of her opinions clearly indicate she is capable of dissecting her personally held views of her dislike of expansive government, from her opinions that seek to apply the law as it exists and defer to the legislative judgments on how best to address social and economic problems. Justice Brown has been extremely cooperative with the Senate Judiciary Committee. She testified for nearly 5 hours at her hearing and answered every charge leveled against her. Justice Brown is clearly qualified for this job, and her colleagues, Republican and Democrats alike, agree. Twelve of her colleagues wrote the following about her: We who have worked with her on a daily basis know her to be extremely intelligent, keenly analytical and very hard working. We know she is a jurist who applies the law without favor, without bias and with an even hand. Now, isn't that what one would want in a judge? This quote best summarizes my faith that many people, including myself, have in Justice Brown. In an October 17, 2003 letter to Senator Hatch, Judge Talmadge R. Jones of the Sacramento Superior Court wrote: More importantly, the exceptional judicial performance of Justice Brown as a Circuit Judge will readily be apparent to everyone, and a worthy tribute to the confidence placed in her by both the President and the United States Senate.

Mr. ALLEN. I ask unanimous consent to be allowed 5 more minutes.

Mr. ALLEN. Madam President, I ask Unanimous Consent that I be allowed 1 minute and add 1 minute to the Democrats' side to sum up.

Mr. ALLEN. I thank my colleagues. In summation, Priscilla Owen, Janice Rogers Brown, and all of the President's nominees, deserve a fair up-or-down vote. The people all across this country, whether they are down in Cajun county in Louisiana, whether they are down in Florida, whether they are in the Black Hills of South Dakota, or whether they are in the Shenandoah Valley of Virginia, expect action on judges. As much as people care about less taxation and energy security for this country and wanting us to be leaders in innovation, they really expect the Senate to act on judges. It is a values issue. It is a good government issue. It is a responsibility-in-governing issue that needs to be addressed. As I said earlier, there is no reason to filibuster these nominations. As Senators we have a responsibility to vote. These nominees deserve fair consideration, fair scrutiny, but ultimately we have a responsibility to get off our haunches, show the backbone, show the spine, vote yes or vote no, and be responsible to our constituents. I thank you, Madam President, and I yield the floor.

Mr. ALLEN

Mr. ALLEN. Mr. President, I thank my colleague from Oklahoma. I am glad we are going to be voting on my amendment around noon. I had thought it was going to be 11:30, but it is now noon. Let me share with my colleagues the rationale behind amendment No. 611 to the underlying bill. I first thank my colleague, Senator Ensign of Nevada, for cosponsoring this amendment. The purpose of my amendment is to make sure that safety belt incentive grants are awarded based on a State's seatbelt use rate, not based upon a prescriptive mandate from the Federal Government that would make the States enact a primary seatbelt law to receive their Federal funds. The way this bill came out of committee, in effect, for the States to get their money, they have to enact a primary enforcement seatbelt law. Seatbelt laws generally, whether you have a law such as 29 States do, which is secondary enforcement, or in some cases not even secondary enforcement laws, or some States have primary enforcement laws, this is an issue under the purview of the people in the States. This is not an issue for the Federal Government to get involved. This is not an issue of civil rights. It is not an issue of interstate commerce. It is not in the Constitution. There is no way Thomas Jefferson and James Madison would ever envision the Federal Government worrying about such matters. I know they did not have automobiles in those days, but they were not coming up with worries about what kind of saddles they had or making sure folks on horseback laced up their saddles correctly with a buck and strap or whether there were seatbelts on buggies. The underlying bill clearly tramples on the jurisdiction that has long been held by the people in the States. I don't believe ``nanny'' mandates such as this initiative should come from Government. But if they must, the government should be that of the State legislature and not the Congress. State legislators provide a much closer representation of the views and beliefs of their respective constituencies in our country. I am a firm believer that the laws of a particular State reflect the philosophy and principles under which the citizens of that State should be governed. The people in the States do not need fancy Federales telling them what to do. Moreover, I doubt a single Senator ran for this office of Senator promising to enact primary seatbelt laws, trampling on the laws of their States. This chart shows a minority of States, 21 States, the States in red, have primary safety belt laws; 29 States do not, the States in white on the chart, and New Hampshire. I surmise this issue has been considered by every one of the State legislatures in all our 50 States. In 29 of those States, primary enforcement of seatbelt laws was rejected. Why were they rejected? Each State may have their own reasons. Some may believe it is more important for law enforcement to worry about drunk drivers or impaired drivers rather than craning their necks trying to figure out what is in someone's lap as they are driving otherwise safely down the road. There are others that may have concerns about driving while black, a concern of racial profiling. Regardless of the reasons, 29 States have rejected primary seatbelt laws. Given that a majority of the States has declined such laws, it seems inappropriate for the Federal Government to devise a grant program that essentially compels the States to enact primary enforcement laws, and if they do not, they lose Federal gas tax dollars the people in these States paid into the Federal highway trust fund. My amendment revises the Occupant Protection Incentive Grant Program to grant awards on 85-percent belt use rate--the national average is about 80 percent. Eighty-five percent would, of course, be a significant increase. People are safer wearing seatbelts. It is a good idea to wear seatbelts, but instead of compelling States to enact primary seatbelt laws, the grants should be awarded solely on seatbelt use attainment. The point is to get people to wear seatbelts, not to have prescriptive micromanagement from the Federal Government. For me, it is difficult to understand the logic of an incentive program that provides Virginia, with its high safety belt use, far less funding than a State with far lower seatbelt use rate but with a primary seatbelt law. Yet that is entirely possible under this bill if the State with a lower seatbelt use rate has enacted a primary seatbelt law. For example, a State could have 70-percent seatbelt usage and receive Federal funds under this grant program only because it has enacted a primary seatbelt law. However, another State could have 89-percent seatbelt usage rate but not qualify for this grant funding because it does not have a primary seatbelt law. That makes absolutely no sense unless one is an officious meddler who wants to dictate and meddle in the prerogatives of the people in the States. If the goal is to attain higher safety belt usage rates, incentive grants should be awarded based on a specific goal. In our amendment, it is 85 percent. This amendment is similar to one already included in the House version of this highway bill legislation. My proposal is a much more equitable way to provide incentives and reward States for increasing seatbelt use rates. It makes the proposed program fair by making requirements the same for all States, but does not compel States to enact primary seatbelt laws. How do you get people to wear seatbelts if you do not have a law? As if everyone carries the code of their State around in the glove box or, for that matter, carries around the United States Code. There are a variety of ways. In some States with secondary enforcement, with higher usage rates than those with primary enforcement laws, there can be advertising, there can be incentives. There are a variety of programs creative people can devise as well as just common sense. I wear a seatbelt. My kids wear seatbelts. Everyone ought to. But the point is, Should this Senate be telling the States to pass primary enforcement laws? I urge all my colleagues to consider the laws of your State. If you are in one of the 29 States that does not have a primary seatbelt law, what in effect Senators are saying is, we do not trust you in South Carolina, Florida, Arkansas, Missouri, Arizona, or Montana to make these laws. I don't agree with this. Moreover, you are telling people from Alaska to Arizona to Florida and South Carolina, Virginia, and on up to New Hampshire and Maine, sure, you all are paying Federal gas tax revenues into the Federal Government highway trust fund from your gasoline purchases, but you are not going to be able to get this approximately $500 million portion back unless you pass a primary enforcement seatbelt law. The people in the States should determine whether this Federal Government incentive plan should reward States that have high usage rates or whether it should be used to promote a certain meddling nanny philosophy. I respectfully ask my colleagues to stand up for common sense, principled respect for the will of the people in the States. Stand up for the principle that the law ought to be fair to those across the country. If any of those States can reach 85-percent attainment rate, depending on how it gets calculated in the States, let them have access to these funds and grant them the broad authority, also, to use those funds for roads and adding on to roads, as well. Finally, rather than official Federal nannyism, stand up for trusting free people. They can make these decisions perfectly well, and have heated and vigorous debate in their State legislatures if necessary. We should not trespass on the will, desires, and views of the people of 29 States with this officious nannyism and the federales planting their finite wisdom over the will of the people in the States. I ask my colleagues to vote in favor of the Allen amendment. Amendment No. 761, as Modified

Mr. ALLEN. Thank you. The purpose of my amendment is to not have the Federal Government as an officious nanny telling the States how to achieve seatbelt usage rates. Twenty-nine States don't have primary enforcement of seatbelt laws and 21 do. Seven States have 90 percent usage. Fifteen States have over 85 percent. The underlying proposal will actually reward States that have lower seatbelt usage only because they have primary enforcement seatbelt laws, while others that do not have primary enforcement seatbelt laws have a higher use rate. I don't think the people in the States who have paid into the highway trust fund ought to be dictated to by officious Federal nannies; we should trust the people in the States to make these decisions as opposed to trespassing on those prerogatives.

Mr. ALLEN. Mr. President, let me know when 1 minute is left, please. My amendment sets a goal of 85 percent usage of seatbelts, and if a State achieves that, whichever way they may achieve it, they would get these incentive grants.

Mr. ALLEN

Mr. ALLEN. Mr. President, I call up amendment No. 611.

Mr. ALLEN. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. ALLEN. Mr. President, the purpose of the amendment I have offered, along with Senator Ensign of Nevada, is to make sure safety belt incentive grants are awarded based on a State's seatbelt use rate, not based on a prescriptive mandate from the Federal Government that a State must enact a primary seatbelt law to receive Federal funds. I have long opposed Federal dictates, whether direct or indirect, on States to enact a primary seatbelt law. This brand of nanny government precludes American adults from making basic decisions for themselves and could hamper law enforcement's ability to effectively patrol the streets and highways for more serious and egregious offenses. It is generally a waste of scarce time and resources for local police officers to pull over an adult and write a ticket to fine someone who was, theoretically, potentially harming himself or herself by not wearing a seatbelt. Our citizens would be better served if a law enforcement officer, rather than writing that ticket, because someone was otherwise driving safely down the road, was actually finding someone who is weaving down that same stretch of road as a drunk driver, clearly a danger to themselves but more importantly to others. Law enforcement resources are not unlimited. I believe police officers have more pressing needs than craning their necks to make sure every licensed driver on the road has a buckled seatbelt. This is not an issue of interstate commerce. This is not a civil rights issue. This is not in the U.S. Constitution. This is an issue of enforcement of seatbelt laws, and what laws a State might want to have is and has long been under the jurisdiction of the people of the States. I don't believe that nanny mandates such as this initiative should come from government. But if it is going to come from a government, it ought to be coming from a State government, certainly not the U.S. Congress. State legislators provide a much closer representation of the views and beliefs of their respective constituencies in this country. I am a firm believer that the laws of a particular State in matters such as this reflect the principles and philosophies under which the citizens in that State wish to be governed. One can see from this chart a minority of States have enacted primary seatbelt laws. The ones in red are the 21 States that have primary enforcement of seatbelt laws. Simple math tells you that 29 States do not have a primary enforcement of seatbelt laws. In fact, New Hampshire doesn't even have secondary enforcement of seatbelt laws. I surmise that this issue has been considered by all of the States' legislatures in the past. In our general assembly in Virginia--the world's oldest legislative body in the Western World, started in 1619--they have debated the benefits of a primary seatbelt statute numerous times and have consistently rejected such a law in our Commonwealth of Virginia. In fact, during the debate in the Virginia House of Delegates, it was strongly argued that primary seatbelt laws can contribute to racial profiling. In early 2003, Delegate Kenneth Melvin of Portsmouth, VA, voiced his opposition to a primary seatbelt law, stating: I know what happens when you are stopped by police as a black man in this country, and in Virginia in particular. He then explained how his oldest son had been pulled over by police numerous times for no apparent reason. Incidents like this might not happen in every State and may be specific to certain jurisdictions in Virginia, but it is the fundamental reason for us to leave such decisions to the people in the States. The repercussions of such Federal mandates or pressure can have different effects in each State. Given that the majority of the States have declined primary safety belt laws, it seems inappropriate for the Federal Government to devise a grant program that essentially compels the States to enact them or lose Federal gas tax dollars that they paid into the Federal highway trust fund. The underlying bill's Occupant Protection Incentive Grant Program, I suppose, is well-meaning officiousness, but instead of providing grants based on obtaining a goal to increase use rates, the safety title requires the States to enact a primary seatbelt law to receive these Federal funds which, of course, have come from the people in the States who paid Federal gas taxes. The proponents of this provision will no doubt argue that the program is not discriminatory, not an effort to coerce States without primary seatbelt laws to enact such laws. However, the 90-percent use rate required in this bill would make it extremely difficult for a vast majority of the States to qualify for grant funding. According to the National Center of Statistics and Analysis, only seven States had a safety belt use rate of 90 percent or higher in 2004. I understand there are studies that indicate that primary seatbelt laws are most likely to yield increased use rates. However, if States without primary seatbelt laws are able to attain a comparable or higher use rate to those with such laws, it is fundamentally unfair for the Federal Government to withhold grant funding that has been provided by all road-using taxpayers. My amendment would revise the Occupant Protection Incentive Grant Program to base grant awards on an 85-percent safety belt use rate. Instead of compelling States to enact primary seatbelt laws, grants would be awarded based solely on seatbelt use attainment. There are a variety of ways that States may encourage people to use seatbelts. It is difficult for me to understand the logic of an incentive program that would provide Virginia, with its high safety belt use rate, far less funding than a State with a far lower seatbelt use rate and a primary seatbelt law. Yet that is entirely possible under this bill if a State with a lower use rate has enacted a primary seatbelt law. They could have a lower rate than the State that doesn't have such a law and receive funding, while the State with higher usage does not. If the goal is to attain higher safety belt use rates, incentive grants should be awarded based on a specific goal. In our amendment, it is an 85-percent safety belt use rate. This proposal is similar to the one already included in the House version of this legislation. My proposal is a much more equitable way to provide incentives and reward States for increasing safety belt use rates. It makes the proposed program fair by making requirements the same for all States but does not compel States to enact primary seatbelt laws. Again, the goal of our amendment is simple and clear: attain higher seatbelt use rates based on achievement, not on an artificial mandate from the Federal Government. States are looking for the greatest flexibility on how to use Federal transportation dollars that we send back to them. Some may decide that increasing capacity can best serve their citizens by helping alleviate traffic congestion and improving the safety of a particular roadway. My amendment would allow these funds to be used for everything from intersection improvements, pavement and shoulder widening, installation of rumble strips or warning devices, improving skid resistance, improvements to pedestrian or bicyclist safety, railway, highway crossing safety, traffic calming, the elimination of roadside obstacles, improving highway signage, and pavement marking. They can use it for installing priority control systems for emergency vehicles that signal intersections. They could use it for installing traffic control or warning devices at locations with high accident potential, or increasing road or lane capacity. It has been noted multiple times throughout this debate that our highways are not being maintained and actually require greater funding than the underlying bill provides or authorizes. This amendment would provide the States some additional flexibility to address road and lane capacity needs if they so choose. We all agree that wearing a seatbelt increases safety for drivers, and the policy should be to try to promote increased safety belt use rates. My amendment does not change that purpose. However, I do not believe it is the role of the Federal Government to force States to enact such laws that are traditionally considered in the State legislatures. The States may have many ways, such as advertising, to encourage greater seatbelt usage. My amendment rewards States equally for reaching an 85-percent safety belt use rate, but does not seek to force them into only one solution prescribed by the officious nannies in Washington, which would be a primary enforcement seatbelt law. I urge my colleagues to consider the laws in their home State. Twenty-one States have such a law, 29 do not. Determine whether you believe this Federal Government incentive plan should reward States that have high usage or whether it should be used to promote a certain meddling nanny philosophy of this body that tells State legislatures and the people in the States what to do. My amendment would ensure that the occupant protection incentive grant funding is awarded fairly and is done so based on attainment of goals. I strongly urge my colleagues to support this amendment. Mr. President, I yield the floor.

Mr. ALLEN

Mr. ALLEN. Mr. President, I am pleased today to recognize and thank Ambassador Lisa Guillermin Gable of Virginia for her valued leadership as the United States Commissioner General to the 2005 World Exposition in Aichi, Japan. The World Expo 2005 features national pavilions from 125 participating countries. Under the leadership of Ambassador Gable, the not-for-profit and privately funded organization, Aichi USA 2005, has successfully designed and built the U.S. Pavilion, which will be open to the public in Nagoya, Japan, through September 25, 2005. The showcase at the United States' pavilion honors America's first diplomat and innovator, Benjamin Franklin. The pavilion showcase promotes America's core values of hope, optimism, enterprise and freedom. Under Ambassador Gable's stewardship, the U.S. Pavilion and related cultural activities were successfully and fully funded with 100 percent non-Federal financing. The hard work of this distinguished resident of the Commonwealth of Virginia will help promote U.S. economic development by fostering business relationships between Japan and the many participating countries and state sponsors. I express my appreciation and thanks to Ambassador Lisa Guillermin Gable, U.S. Commissioner General to the World Expo, as named by President George W. Bush, for leading the way in making possible the United States' participation in the first world's fair of the 21st Century.

Mr. ALLEN

Mr. ALLEN. Mr. President, as the clock strikes midnight, an historic event will occur for all of us in the Senate, but obviously an important date in the history of Virginia. In all of our history, we have had 51 Senators from the Commonwealth of Virginia, such as John Tyler who became President, and Madison, and many great Senators. A historic achievement is being achieved tonight with my wonderful partner and our colleague, John Warner, which is a testament to his abilities as a leader and the high esteem in which he is held by the people of Virginia. Tonight, in fact at this very moment, our wonderful colleague John Warner surpasses on the all-time list Senator Carter Glass, who served in this body for over 26 years. Senator Warner's extraordinary term of service is now second to only Harry Byrd in serving in the Senate. He was elected in 1978 and he has spent the last 26 years serving this country. He is a man who loves his job. He is a man from whom we always learn something new, valuable, insightful, or humorous. He is a unique blend of a military leader, having served in World War II and in Korea.

Mr. ALLEN. No, I object. He is a country gentleman, a legal scholar, a historian, a great storyteller, and an esteemed statesman, all with the joy of life of a 12-year-old boy. He loves his job. He loves the Senate. And we love him and congratulate him on this momentous occasion. (Applause, Senators rising.)

Mr. ALLEN

Mr. ALLEN. Mr. President, I am pleased today to recognize James Monroe, a Virginian patriot, on the 247th anniversary of his birth and honor his service to our Nation as a soldier, a diplomat, a legislator and as the fifth President of the United States of America. As the Nation draws closer to the celebrations being planned to honor President Monroe's 250th birthday, I rise today to honor his undeniable legacy. James Monroe, born April 28, 1758, in Westmoreland County, was born, raised and educated in the Commonwealth of Virginia. Foregoing his studies at the College of William and Mary, James Monroe joined the Williamsburg Militia in 1775 in defiance of the British King. He served gallantly in the Continental Army on the battlefield at Harlem Heights, White Plains, Trenton, Brandywine, Germantown, and Monmouth, eventually rising to the rank of lieutenant colonel. A student of Thomas Jefferson's after serving in the Revolutionary War, James Monroe was an adherent of Mr. Jefferson's principles of individual freedom and restrained representative government, which would guide him through 50 years of public service. Elected to the Virginia General Assembly in 1782, Monroe served in the Confederate Congress and in the first U.S. Senate before his first of two terms as Minister to France. He returned to his Virginia, and as many students of Mr. Jefferson have done since, served 4 years as Governor. During Thomas Jefferson's Presidency, James Monroe returned to France and was essential in the negotiation of the Louisiana Purchase in 1803. His foreign policy experience led James Madison to name him both Secretary of State and Secretary of War as the United States was once again pulled into war with Great Britain in 1812. Elected President of the United States in 1816, Monroe's Presidency has long been referred to as the Era of Good Feeling. During this time he helped resolve longstanding grievances with the British, acquired Florida from the Spanish in 1819, signed the Missouri Compromise and renounced European intervention or dominion in the Western Hemisphere with one of our Nation's greatest foreign policy documents, the Monroe Doctrine. In 1820, Monroe achieved an impressive re-election, losing only one electoral vote, reserving the honor of a unanimous election for George Washington alone. My own family has strong ties to the legacy of James Monroe. My wife Susan and I enjoyed our wedding on the grounds of his home, Ashlawn- Highland, in Charlottesville where her family has worked for many years. In fact, part of Monroe's property in Albemarle County is now on the grounds of his teacher's great institution of learning, the University of Virginia and is respectfully referred to as Monroe's Hill. The life of James Monroe is one that embodied virtue, honor and commitment during his accomplished life of public service. It is fitting that he would pass from this Earth on July 4, 1831. It is with sincere admiration that I respectfully ask my colleagues to recognize James Monroe's 247th birthday as a reminder of his remarkable and magnificent leadership for the people of Virginia and the United States of America.