John Ashcroft

Mr. ASHCROFT

Mr. ASHCROFT. May I inquire as to the state of the proceedings.

Mr. ASHCROFT

Mr. ASHCROFT. Madam President, I want to take just a few minutes to speak about the nomination of Frederica Massiah-Jackson to be a U.S. district judge for the Eastern District of Pennsylvania, a nomination that was withdrawn earlier today. I think this is the right move at the wrong time. It should have been clear to the administration over a month ago when we debated this nomination on the floor that this individual was not fit to serve as a Federal judge appointed for life. At that time, I called for the President to withdraw the nomination. And I am glad that he has finally seen fit to do so, or that the administration finally saw fit to follow that course, although the letter is really a withdrawal request from the nominee herself. I remain troubled that this individual was nominated for a lifetime appointment in the first place, and, once nominated, did not withdraw sooner. One enduring lesson of this nomination is that it is critical for the Senate to take its constitutional advice and consent role seriously. We have heard much in recent weeks about the so-called ``vacancy crisis'' in the Federal courts and that the Senate needs to speed up its processes to give judicial nominees a quick up-or-down vote. Today's action by the administration agreeing to withdraw this nomination demonstrates the danger of worrying more about filling the courts than fulfilling our constitutional obligation to screen judicial nominees. Last November, this nomination was on the verge of confirmation. At the end of the last session, there was a tremendous effort to rush a number of nominations, including this one, through the Senate along with others in a series of confirmations at the close of business. I resisted those efforts because I felt this nomination had serious defects that demanded complete examination in the light of day. Once this nominee's record was examined in the open, it became clear-- including clear, I think, ultimately to the President--that this nominee was not fit. I also resisted those efforts because law enforcement officials in Philadelphia informed me that they were gathering additional information concerning the nominee. In the light of these concerns, I placed a hold on this nomination, and I refused to lift it despite the insistence of several. Some would point to this as an unnecessary delay that has contributed to the so-called ``vacancy crisis.'' But we would be creating an actual crisis, not solving an imagined one, by giving individuals confirmation when they do not deserve it. We would have been creating, in my judgment, a crisis by confirming Judge Frederica Massiah-Jackson with a lifetime appointment. The Senate has a constitutional obligation to give its advice to the President with respect to judicial nominees and, in a case like this, to withhold our consent. I take this responsibility seriously, and we must all take this responsibility seriously, in the light of the nominees the President has sent to the Senate. This nominee demonstrates the caliber of nominee the President has sent to the Senate. Notwithstanding his elaborate vetting process and the ABA screening, this is the nominee whom President Clinton chooses for a lifetime appointment. One has to wonder about any vetting process that raises no objections to a nominee like this one. And one has to wonder what kind of evaluation process the American Bar Association conducts that it deems Massiah-Jackson ``qualified.'' But the truth of the matter is this: The Constitution does not give the Justice Department, nor does it give the White House Counsel's Office nor the ABA, a formal screening role in judicial nominations. The Constitution entrusts that to the U.S. Senate. It is an important responsibility. And we would not be taking our constitutional responsibilities seriously if we did not scrutinize nominees, as we have done in this case ultimately. The Senate Judiciary Committee has now had its second hearing, and in my judgment, that hearing shed little additional light on this nomination. The hearing did make it clear that Judge Massiah-Jackson was less than forthcoming in her first hearing. It is now clear--as it was last month--that her claim that she had never been reversed in a sentencing appeal is false. It also was evident that she had failed to apprise the committee of other cases in which she had been reversed on appeal. Indeed, a number of new cases were raised at the hearing that make it even more obvious that this nomination should be rejected. Case in which child rapists were given light sentences, or where Judge Massiah- Jackson wondered aloud from the bench whether the Commonwealth should have been wasting time and prison space on a defendant who had AIDS. But, in general, the nominee's inability to remember key details of cases that had been raised publicly over a month ago--let alone the new cases raised at the hearing--rendered the hearing pointless. Judge Massiah-Jackson failed, in my view, to provide compelling answers to the questions raised about her record. As a consequence, it is clearly time for the Senate to stand up and be counted and reject this nomination. Nomination fights are not pleasant, but there is a principle worth fighting for here: America deserves better than this. This nominee is so far below the minimum quality we should expect from a Federal judge it is tragic. The local law enforcement community is horrified that they are about to be saddled with this judge for life. They are concerned that many in Washington seem to be willing to rubber-stamp nominees, no matter how unqualified. The thrust of the objections of local law enforcement officials--and the basis of my own opposition--are fourfold. This nominee: has shown disrespect for the court by using the English language's most offensive profanity in open court; has recklessly risked the lives of undercover police officers by disclosing their identity; demonstrated hostility to prosecutors by suppressing evidence and dismissing charges against criminals; and shown leniency to criminals in sentencing violent criminals to probation-only, and using lesser-included offenses to avoid mandatory minimum sentences. Philadelphia District Attorney Lynne Abraham, Democrat, at great political cost, came out against the nomination in a letter to Senator Arlen Specter on January 8. Her letter captures the nature of the local law enforcement community's concern. She wrote: This nominee's judicial service is replete with instances of demonstrated leniency towards criminals, an adversarial attitude towards police and disrespect toward prosecutors unmatched by any other present or former jurist with whom I am familiar. The Senate cannot confirm this nominee in the face of the strong opposition of local law enforcement community. To do so would be the height of arrogance and another example of the ``Washington knows best'' mentality. The American people deserve a better caliber of nominee. This nomination sends the wrong message to criminals, to law enforcement and to victims of crime. The Senate should vote to reject the nominee now. Contempt for Prosecutors and Police Officers Example One--Commonwealth v. Ruiz. In this case, Judge Massiah-Jackson acquitted a man accused of possessing $400,000 worth of cocaine because she did not believe testimony of two undercover police officers, Detective-Sergeant Daniel Rodriguez and Detective Terrance Jones. It was the second time she had acquitted alleged drug dealers nabbed by the same officers. The first time, the two undercover officers had testified that they found two bundles of heroin on a table right next to the defendant's hand. The judge not only refused to believe this testimony, she went one step further. As the officers were leaving the courtroom, the judge reportedly told spectators in the court: ``take a good look at these guys [the undercover officers] and be careful out there.'' Detective-Sergeant Daniel Rodriguez confirmed this outrageous courtroom incident in a signed letter to the Senate. The detective- sergeant had the following comments regarding this incident: I thought, ``I hope I don't ever have to make buys from anyone in this courtroom.'' They would know me, but I wouldn't know them. What the judge said jeopardized our ability to make buys. And it put us in physical danger. Detective Terrance Jones, the other undercover officer ``outed'' by Judge Massiah-Jackson in open court, also confirmed the facts in a signed statement to committee staff. He stated that the comments ``jeopardized our lives.'' Detective Jones also notes: [A]s a law enforcement officer who happens to be African- American I am appalled that self interest groups and the media are trying to make the Massiah-Jackson controversy into a racial issue. This is not about race, this is about the best candidate for the position of federal judge. Example Two: Commonwealth v. Hicks, (6/12/87.) In this case, in an action that led to a reversal by the appellate court, Judge Massiah-Jackson dismissed charges against defendant on her own motion. Although the prosecution was prepared to proceed, the defense was not ready because it was missing a witness--a police officer who was scheduled to testify for the defense apparently had not received the subpoena. The defense requested a continuance to clear up the mix-up concerning the subpoena. The Commonwealth stated that it had issued the subpoena. The defense did not allege any wrongdoing or failure to act on the part of the Commonwealth. Nonetheless, without any evidence or prompting from defense counsel, Judge Massiah-Jackson decided she simply did not believe that the Commonwealth's attorney subpoenaed the necessary witness. Judge Massiah-Jackson held the Commonwealth liable for the defense's unpreparedness and, on its own motion, dismissed the case. As it turned out, the subpoena had been issued but the officer was on vacation and had not received it. Judge Massiah-Jackson's decision was reversed on appeal as an abuse of discretion. The appellate court concluded that: Having carefully reviewed the record, we are unable to determine the basis for the trial court's decision to discharge the defendant. Indeed the trial court was unable to justify its decision by citation to rule or law. judical temperament Example One: Commonwealth v. Hannibal, 6/25/85. In court, in response to prosecutor's attempt to be afforded an opportunity to be heard, the following exchange took place on the record: The Court: Please keep quiet, Ms. McDermott. Ms. McDermott for the Commonwealth: Will I be afforded---- The Court: Ms. McDermott, will you shut your f***ing mouth.--Transcript of June 25, 1985 at 17. Judge Massiah-Jackson was formally admonished by the Judicial Inquiry and Review Board for using intemperate language in the courtroom. Example Two: Commonwealth v. Burgos & Commonwealth v. Rivera, 12/87. During a sentencing proceeding the prosecutor told Judge Massiah- Jackson that she had forgotten to inform one of the defendants of the consequences of failing to file a timely appeal. Such a failure would prejudice the Commonwealth on appeal. Judge Massiah-Jackson responded to this legal argument with profanity, stating: ``I don't give a s**t.'' District Attorney Morganelli, of Northampton County, Pennsylvania, has suggested that the reason there are not more instances of foul language on the record is that Judge Massiah-Jackson's principal court reporter routinely ``sanitized the record.'' It does not appear to be a coincidence that both of these profane outbursts were directed at prosecutors. Instead, Judge Massiah- Jackson's foul language appears to be part and parcel of her hostility to law enforcement. Leniency in Sentencing Example one: Commonwealth v. Richard Johnson, 1988. This case was one of the relatively few cases before Judge Massiah- Jackson where the defendant chose a jury trial over a bench trial. What transpired in this case will give you a sense of why defendants before Judge Massiah-Jackson would choose a bench trial. In this case, the jury convicted the defendant of raping a ten-year- old boy. The verdict carried with it a minimum sentence of five years. Judge Massiah-Jackson admitted in court to crying when she heard the verdict because she said she though that the resulting minimum sentence was too harsh. She said: In this case I'll be frank. If I had had the trial and if it was not a mandatory, I would not have imposed the five to ten year sentence because I just don't think the five to ten years is appropriate in this case even assuming that you were found guilty. Judge Massiah-Jackson had discretion to impose a sentence at least twice the mandatory minimum for this heinous crime; instead, she cried at the thought of sending the child-rapist to jail at all. Unfortunately, Judge Massiah's compassion did not extend to the young victim. The judge refused to hear a victim impact statement. She asked the prosecutor, ``What would be the purpose of that? . . . [W]e know what the sentence is . . .'' The prosecutor stated, ``[U]pon reading about the impact on this victim, you may want to consider more than the five year mandatory minimum.'' Judge Massiah-Jackson replied, ``Why would it be important? There's a mandatory minimum of five years. Have a seat.'' Having apparently decided already that she was not going to use her discretion to give the defendant more than the mandatory minimum, Judge Massiah-Jackson prevented evidence of the crime's impact on the young victim from being introduced. Example two: Commonwealth v. Nesmith, 1994. The defendant had a criminal history of 3 prior juvenile arrests and 1 adjudication and 19 prior adult arrests, 8 convictions, 3 commitments, 3 parole violations and 2 parole revocations. He was tried and convicted of striking a pedestrian with his car, leaving her seriously injured--broken legs, pelvis and 4 bones of the back--by the side of the road, fleeing the scene of the crime and then beating into unconsciousness one of the women's relatives who tried to thwart his escape. The defendant committed these crimes while on parole, having just been released from prison for an assault conviction. Over the Commonwealth's strenuous objection, Judge Massiah-Jackson sentenced him to two year's probation--well below the bottom of even the mitigated sentencing range. Judge Massiah-Jackson, however, explained that the defendant's actions were ``not really criminal. He had merely been involved in a car accident.'' Example three: Commonwealth v. Freeman. Defendant shot and wounded a Mr. Fuller in the chest because Mr. Fuller had laughed at him. Judge Massiah-Jackson convicted the defendant of misdemeanor instead of felony aggravated assault. She sentenced him to two to twenty-three months and then immediately paroled him so that he did not have to serve jail time. The felony charge would have had a mandatory five to ten year prison term. Judge Massiah-Jackson explained her decision, stating that ``the victim had been drinking before being shot and that [defendant] had not been involved in any other crime since the incident.'' Example four: Commonwealth v. Burgos. During a raid on the defendant's house, police seized more than 2 pounds of cocaine along with evidence that the house was a distribution center. The defendant, Mouin Burgos, was convicted. Judge Massiah- Jackson sentenced defendant only to one year's probation. Then-District Attorney Ronald Castille (R) criticized Judge Massiah- Jackson's sentence as ``defying logic'' and being ``totally bizarre.'' He commented: This judge just sits in her ivory tower . . . She ought to walk along the streets some night and get a dose of what is really going on out there. She should have sentenced these people to what they deserve. Example five: Commonwealth v. Williams. I would like to provide just one more example of Judge Massiah- Jackson's leniency in sentencing--an example that I think is also relevant to whether we should have another hearing on this nominee. In this case, Commonwealth v. Williams, the defendant robbed a 47- year old woman on the street at the point of a razor. The defendant used the razor to slash the woman's neck and arms, and then took her purse. The victim had to undergo surgery to repair the slashed tendons in her hand, and was forced to wear a splintering device that pulled her thumb back to her wrist. The defendant plead guilty to first-degree robbery. Under the Pennsylvania sentencing guidelines, that offense carries a range of 4 to 7 years, with a mitigated range of 3\1/4\ to 5 years. Despite these sentencing ranges, Judge Massiah-Jackson sentenced defendant to a mere 11\1/2\ to 23 months. In order to do so, Judge Massiah-Jackson not only had to deviate substantially below the guidelines range, but also had to ignore a mandatory weapons enhancement that raises the minimum sentence 1 to 2 years. The Commonwealth appealed this meager sentence and Judge Massiah- Jackson was reversed for her sentencing errors. This decision is important not only because it demonstrates her leniency in sentencing, but also because of what it says about the equity of giving Ms. Massiah-Jackson an additional hearing. We have heard a lot about Judge Massiah-Jackson's right to be heard and have been given the impression that she has been the victim of sandbagging by her opponents. It is true that there is information that was not available at the time of the Committee's hearing. This sentencing case, for example, was not addressed at the hearing. But that is no one's fault but Judge Massiah-Jackson's. The committee's standard questionnaire asks every candidate to list any judicial decisions which were reversed on appeal. Judge Massiah-Jackson failed to list this case, and indeed testified that she had never been reversed on a sentencing appeal. I point this out to make clear that this is not just a simple matter of giving someone a right to confront new allegations. It strikes me that we are creating a troubling precedent by affording nominees a second hearing, at least in part, to explain materials that were requested prior to the first hearing. Leniency in Suppressing Evidence Commonwealth v. Smith. Judge Massiah-Jackson has also demonstrated leniency in improperly suppressing evidence. The case that perhaps most dramatically illustrates this point is Commonwealth v. Smith, a case discussed by the Chairman of the Judiciary Committee on the floor yesterday. In this tragic case, the victim, a 13-year-old boy, was raped at knife point in some bushes near a hospital. Eventually, the young boy managed to run away from his assailant, nude and bleeding. Two nurses at the hospital saw him, and he told them what had happened, pointing out the bushes where he was attacked. The two nurses called the hospital security guards. They saw the defendant emerge from the bushes with his clothing disheveled, and then saw him walk quickly away. The women yelled out for the man to stop, and the police arrived on the scene and apprehended the defendant. The defendant denied raping the boy, but the police searched him and found a knife matching the description of that used in the rape. At that point the police arrested the defendant. Shockingly, Judge Massiah-Jackson ruled that the police lacked probable cause to arrest the defendant, and suppressed all the evidence including the identification of the defendant by the two nurses. Not surprisingly, the appellate court, when confronted with this dubious judgment, reversed Judge Massiah-Jackson. It has been pointed out that, after remand to the trial court, the defendant was acquitted in a trial before a different judge. But what seems to have received less attention is that all this occurred after Judge Massiah-Jackson was reversed by the appellate court. Unlike the second judge, who conducted a full trial, Judge Massiah-Jackson threw out evidence on the ground that the police lacked even probable cause to arrest the defendant--despite his proximity to the crime scene and the victim. It is, of course one thing to acquit someone after a trial, but the notion that the police officers did not even have probable cause to arrest the defendant is just shocking. And the appellate court agreed. Opposition from Police Organizations Philadelphia F.O.P. The Philadelphia Lodge of the Fraternal Order of Police announced its opposition to the confirmation of Massiah-Jackson on January 13. And just yesterday I had the privilege of attending a press conference in which Philadelphia F.O.P. President Richard Costello made his opposition to this nominee unmistakably clear. National F.O.P. The national Fraternal Order of Police announced its opposition on January 20th. In coming out against this nominee, National F.O.P. President Gilbert Gallegos stated, ``Judge Massiah-Jackson has no business sitting on any bench, let alone a Federal bench.'' After describing the incident in which Judge Massiah-Jackson pointed out undercover police officers in open court, Mr. Gallegos stated, ``I cannot adequately express my outrage.'' The National F.O.P. President concluded that: ``To confirm Judge Massiah-Jackson would be an affront to every law enforcement officer and prosecutor in the nation, all of whom have the herculean task of fighting crime. We shouldn't have to have [both] the judges and criminals against us.'' National Association of Police Organizations. The National Association of Police Organizations announced its opposition on January 22. opposition from local law enforcement Lynne Abraham, D.A., Philadelphia. Philadelphia District Attorney Lynne Abraham, a Democrat, at great political cost, came out against the nomination in a letter to Senator Arlen Specter on January 8. She wrote: My position on this nominee goes well beyond mere differences of opinion, or judicial philosophy. Instead, this nominee's record presents multiple instances of deeply ingrained and pervasive bias against prosecutors and law enforcement officers--and, by extension, an insensitivity to victims of crime. Moreover, the nominee's judicial demeanor and courtroom conduct, in my judgment, undermines respect for the rule of law and, instead, tends to bring the law into disrepute. This nominee's judicial service is replete with instances of demonstrated leniency towards criminals, an adversarial attitude towards policy and disrespect toward prosecutors unmatched by any other present or former jurist with whom I am familiar. John Morganelli, D.A., Northampton County. Northampton County District Attorney John Morganelli, a Democrat announced his all-out opposition to the nomination on January 6, 1998. Mr. Morganelli provided members of the Committee with a letter detailing the numerous incidents of unprofessional conduct that have marked Judge Massiah-Jackson's tenure on the state trial bench. The concluding paragraphs of that letter are worth quoting at length: [Judge Massiah-Jackson's] record is one of an unusually adversarial attitude towards the prosecution and police. Much [in her record indicates] personal animosity towards prosecutors and police in general. Other portions of her record indicate a tendency to be lenient with respect to criminal defendants. This judge sat as a fact finder in the vast majority of her cases because criminal defendants almost always felt it advantageous to waive their right to a jury trial in order to present their case directly to the judge. . . . In addition, she has shown a lack of judicial temperament with respect to vulgar language from the bench on the record and much of it off the record. Also, as indicated above, Judge Massiah- Jackson has attempted to meddle with the appellate process in Pennsylvania by contacting appellate courts and improperly attempting to influence appellate decisions. Her comments, conduct, record and lack of judicial temperament by itself should call into question her stature to serve as a Federal Judge. Numerous District Attorneys and police organizations in the Commonwealth of Pennsylvania oppose this nomination as a slap in the face to the law enforcement community. Executive Committee, Pennsylvania District Attorneys' Association. The Executive Committee of the Pennsylvania District Attorneys' Association, in a unanimous vote, officially opposed the nomination on January 8. The President of the Association wrote a letter on January 26th expressing the Association's opposition. Madam President, I suggest the absence of a quorum.

Mr. ASHCROFT

Mr. ASHCROFT. Madam President, the events surrounding the President of the United States and the White House of the United States find us in a peculiar and uncomfortable situation. It is, however, more than peculiar, and it is more than discomforting. It may, in fact, be disabling. The President has sought to defend his conduct and to defend his circumstance by saying it's OK to be able to become compartmentalized or to segment his personal life from his public life. At least this is the spin which comes from the White House. I perhaps should not say that that comes from the President's own mouth. I think the Congress has sort of bought into the compartmentalization of this crisis at the White House. We discuss it on the talk shows, we discuss it in the cloakrooms, but we don't discuss it on the Senate floor. The new allegations against President Clinton are grave. They carry serious implications, not just for the President but for the Nation as a whole, and it is time for us to consider them in the U.S. Senate. Kathleen Willey is a longtime friend of the President. She was a strong Clinton supporter. She was his employee in the White House. She accused this President of sexual assault just outside the Oval Office and of lying under oath. The President's response has been to tell us only that he is ``mystified'' and ``disappointed.'' Mystified and disappointed? My thoughts exactly. I am mystified that the President has refused to account fully for his actions and disappointed that President Clinton would sacrifice the Office of the Presidency in order to promote his own personal concerns or save himself. Back in January when the Monica Lewinsky scandal erupted, I said if the allegations were true, the President had disgraced himself and his office and should resign. I stand here this afternoon to renew my call. If Mrs. Willey's charges are true, then the President should resign. Permit me to make three observations about Mrs. Willey's accusations or charges. First, the Willey allegations increase the likelihood that the House will be forced to open impeachment proceedings. The Clinton-Willey conflict brings the murky details of this sordid affair into the light of open day. The President is accused of committing sexual assault and lying under oath. Mrs. Willey and the President have sworn to irreconcilable versions of the facts. These charges are serious, and they must be resolved. They cannot both be telling the truth. And America cannot walk away. The Congress, for our part, must have the courage to do what we know to be right. The alleged conduct, if true, I believe constitutes an impeachable offense. Congress should stop looking at the polls and start looking at the Constitution, stop thinking about self- preservation and start thinking about how justice can best be served. Madam President, justice should never be denied simply because it is uncomfortable. Second, the White House must drop the myth that the President is not distracted by the maelstrom of allegations which are surrounding him. The President has lost control of his personal legal problems. Let us dispense with the fiction that the President is able to work in ``compartments,'' all the while hacking and clubbing at Ken Starr and the officials charged with learning the truth. Instead, he has chosen to stonewall. He now stands accused of an impeachable offense by a person who was his friend, political supporter, and employee. Here is the truth. It is not possible for the President to do his job while dealing with this tide of accusations and innuendo. No one could do the job well. And neither can he. Already, the Washington Post has reported that the President behaves like a person overtaken with anger at Kenneth Starr. Already, David Broder and other respected commentators have suggested that the growing scandal is damaging the President's ability to lead. Finally, President Clinton's moral leadership has been destroyed. It can be regained only if he proves that these charges are false, if he clears the air here, if he makes a complete statement understanding to the American people, and assures them of his situation. I had hoped that Bill Clinton would address these charges through a direct and candid accounting to his employers, the American people. But, yes, he did choose to stonewall. He cannot hope to regain his moral authority to lead unless he makes a full and candid accounting to the people, and he does so immediately. It is inevitable that the truth will prevail. And I would prevail on the President to account fully for his actions without further delay. A final point. These allegations are serious. They deal with charges of perjury, obstruction of justice, and sexual assault. For Kathleen Willey's sake, conservatives ought not be rejoicing, and we ought not to be laughing. I deeply regret having joked about the Lewinsky affair in remarks that I made earlier. It was inappropriate, and I was wrong. There is nothing funny here. The allegations of Kathleen Willey make clear to all of us that there is nothing funny here. This is not comedy; this is tragedy. Mrs. Willey's appearance last night on the CBS program ``60 Minutes'' I think exposed America to an individual who was vulnerable, who was in distress, who was in need, and trusted the President of the United States. And it is very clear that she thoroughly believes that her trust was betrayed in a substantial and significant way. A betrayal of trust by the President of the United States is an important matter, particularly if it relates to the way in which his office is conducted, particularly if it relates to an individual who is particularly vulnerable, an employee, particularly if it relates to an incident that takes place in the context of the White House and the Oval Office. And I found her testimony to be compelling and convincing. I believe it makes, again, the clear case for the necessity of the President to explain fully his situation to the American people.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I yield the floor and thank the Chair. Mr. GLENN addressed the Chair.

Mr. ASHCROFT. Mr. President, I rise today to address a rather disturbing article that appeared not only in the Washington Times but also in the Washington Post, a similar article. The headline in the Times says: ``China in New Nuclear Sales Effort.'' The headline in the Post: ``U.S. Action Stymied China Sale to Iran.'' These articles represent a concern of mine, because they detail China's continuing nuclear proliferation, not just nuclear proliferation, but proliferation to the nation of Iran. According to these articles, U.S. intelligence discovered secret China-Iran negotiations concerning Chinese transfer of hundreds of tons of anhydrous hydrogen fluoride. Anhydrous hydrogen fluoride is a material used in enriching uranium to weapons grade uranium. This transfer was scheduled to go to Iran's Isfahan Nuclear Research Center. The Isfahan Center is the principal site of Iran's efforts to manufacture the explosive core of an atomic device, according to the articles. So what we have here, both in the Washington Post and in the Washington Times, is the chronicling of China's effort to send these kinds of components and processes to Iran in order for Iran, a rogue nation, to enhance its capacity to be involved with atomic weapons of mass destruction. This revelation of new Chinese efforts to aid Iran's nuclear weapons program is deeply troubling, and it follows solemn commitments from Chinese leaders just last October that China would cut off nuclear assistance to Iran. What is more troubling to me, however, is the fact that the Clinton administration has overlooked more than a decade of similar promises that have been broken just as quickly and routinely as last October's promise has now been revealed to have been broken on the face of the front pages of this city's newspapers. This continued course by this administration to simply take at face value assurances consistent with other assurances and, unfortunately, consistent with the disregard for those assurances in terms of policy, causes us to question whether or not we should have been racing into these agreements, and particularly according to China the special standing which we have provided to China based on the events of last October. It is pretty clear to me that, in spite of the fact that China assured us last October that they were going to be adopting a different posture in regard to nuclear proliferation, their policy and their practice was not altered. Their policy and practice of providing this kind of proliferation to rogue nations remains in place. It is, unfortunately, not new that the Chinese have broken agreements. I will submit for the Record a list of events and times in which the Chinese have said one thing and done another in regard to nuclear proliferation--starting in 1981, 1983, 1984, 1985, 1986, 1987, 1989, 1990, 1991, another incident in 1991, 1994, 1995, 1996, and 1997. Now, this list, which has been assembled by the Nuclear Control Institute, merely chronicles the habit, the practice, and the policy of China in saying one thing and doing another. A number of us were stunned last year when the administration said it wanted to elevate the standing of China as it related to nuclear technology. We were stunned because we were aware of this list. We were stunned, thinking that if in the summer of 1997 our own CIA labels China as the world's worst proliferater of weapons of mass destruction, why would we 90 days later want to constitute them as a nuclear cooperator and enter into a nuclear agreement with them that would entitle them to higher levels of information, higher degrees of cooperation with the United States? I will submit this list for the Record. I will not belabor the Senate with all of the documentation here, but I would like the list to be included in the Record and the documentation be available to the Senate and to the American people. I ask unanimous consent that it be printed in the Record.

Mr. ASHCROFT. Now, this most recent set of incidents, of course, revealed in the Washington Times today, and in the Washington Post as well, and I am sure in other newspapers across the country, was the subject of a special briefing to Members of the U.S. Senate very recently. I was not a part of that briefing and I do not know what was said at the special briefing, but the information that I am including is information from these news sources. I want to make it clear that I would not be breaching any special information provided to the Senate. I was not a party to it. But the information is well known. What is perhaps in some measure troubling is that the administration sought to portray this episode with China as a success. They say, ``Look what we stopped. Look what we were able to do.'' They say that China responded more swiftly to our complaints this time, that when we caught them red-handed in the process of breaking their word, they were more ready to admit they were breaking their word. To hear administration officials talk, the swiftness of China's response to the exposure of their proliferation activity is grounds for disregarding that the administration was hoodwinked by the Chinese all along. Well, the inventory since 1981 is sort of the litany, if you will, of the insistent and nagging record of proliferation violation after proliferation violation after proliferation violation upon proliferation violation. These things provided a basis for saying to the administration, we should not trust the Chinese, at least without some record, without some record that proliferation will stop, and yet within days after our CIA labeled the Chinese as the world's worst proliferaters, we in this administration seemed ready to believe their next assurance. And, of course, these newspapers indicate that our belief should have been in their practice and policy of the past, which has been a policy of betrayal and a policy of disregard, not a policy of compliance with agreements relating to nonproliferation of nuclear weapons. Who knows what other nuclear assistance projects China has in store with Iran or other rogue regimes. Who knows how many such projects we have not detected, have not called their hand on, have not asked them to stop because we did not know about them. We happen to intercept information here. Given China's past proliferation record, and given that the 1997 CIA report that called China--and I quote--``the most significant supplier of weapons of mass destruction-related goods and technology to foreign countries''--that was a quote; the CIA labeled them that less than a year ago--it is pretty clear that people of good sense would say, maybe we ought to ask that they be compliant, maybe we ought to ask that they observe their agreements for at least a short interval before we endow them with our full trust and confidence. I opposed President Clinton's decision to begin nuclear cooperation with China based on the CIA report, based on this heritage of denying and breaking these agreements. And now the newspapers of this morning, from both the right and the left, if you will, have said that China was in the process of breaking these agreements currently after China has given its word. In order for United States-China nuclear cooperation to proceed, the President certified to Congress that China--and this is what he certified--``is not assisting and will not assist any nonnuclear-weapon state, either directly or indirectly, in acquiring nuclear explosive devices or the material and components for such devices.'' The President's haste to make this certification seriously undermined U.S. counterproliferation credibility, credibility that would be desperately needed just a few weeks later in a confrontation with Saddam Hussein over the same issue of the threat of weapons of mass destruction--not a unique issue. Mr. President, the startling inconsistencies in this administration's policy regarding the proliferation of weapons of mass destruction, these inconsistencies are putting the national security of our country at risk. Secretary of State Madeleine Albright talks about NATO's new central mission as combating the proliferation of weapons of mass destruction. The United States almost went to war last month in the Persian Gulf over the threat of weapons of mass destruction. We still face the prospect of having to use military force to address the threat posed by Saddam Hussein's weapons of mass destruction. And yet, in spite of all this, the administration's rhetoric on counterproliferation--in spite of the continuing object lesson of Saddam Hussein and the threat posed by his terrorist government--the Clinton administration has entered into a nuclear cooperation agreement with China, the world's worst proliferater of weapons of mass destruction. And we know, as of this week, that China is repudiating the basis of those agreements. Just as Saddam Hussein has outmaneuvered this administration to keep his weapons of mass destruction in Iraq, China has outmaneuvered this administration to continue to proliferate weapons of mass destruction to Iran. Not only is Beijing continuing to pursue nuclear assistance to Iran, but, according to the CIA, China is a major supplier to Iran of chemical weapons and missiles technology as well. I call on the President to put a halt to nuclear cooperation with China. The President, in my opinion, has pursued a policy of blind engagement with the Chinese. It is a policy which disregards the facts, the litany of breaches on the part of the Chinese. It disregards the facts of continuing breaches of their agreements by the Chinese who continue to proliferate weapons of mass destruction. In light of the reports on China's continuation of proliferation activity, the proposed United States-China summit meeting in June should be reconsidered. Mr. President, the decision to begin nuclear cooperation with China was a political one. It was driven by the administration's desire to have a ``meaningful'' meeting, an event strategy. Well, ``meaningful'' events cannot replace substantive foreign policy. We cannot say in one part of the world to Saddam Hussein, ``Well, we'll go to war with you over weapons of mass destruction,'' while we are winking at someone else, saying, ``Well, it's OK if you continue to break your word and proliferate weapons of mass destruction'' to equally dangerous rogue regimes. It undermines America's credibility in combating the proliferation of weapons of mass destruction. It is not worth the photo-op that we get from the Chinese by having a summit if we have to destroy our policy and threaten the security of this globe to do it. I believe that it is time for us to have a policy, a policy that is unmistakable and clear and a policy that is respected, that weapons of mass destruction are not to be tolerated and that the United States will not extend privileges of nuclear cooperation to those who would take nuclear resources and make them available to rogue nations as weapons of mass destruction.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise to address a problem of significant magnitude. I ask unanimous consent to speak for up to 10 minutes.

Mr. ASHCROFT

Mr. ASHCROFT. Madam President, I rise today to talk about the role of government in the technology sector. Two things can be predicted with confidence about congressional meddling in this sector of the economy. First, legislation will be obsolete on the day it is passed. Second, it will hurt consumers, students, teachers, workers, shareholders, and the economy. if Congress had helped set up the automobile industry, there still might be a livery stable in every town, and buggy whip factories in large cities. America's dynamic, world-leading computer industry must be kept free of regulation by slow-moving federal bureaucrats who cannot possibly understand or keep pace with the most dynamic sector of the economy. Taken together, these developments highlight the need for Congress to step back and draft with care the necessary legislation to extend copyright protections to those who develop content for the digital age, instead of blindly racing ahead to enact a Clinton Administration proposal supported by major Hollywood interests. Consider the consequences. Last year, Americans purchased 11 million PCs and 16.8 million VCRs. This year, another 12.6 million PCs and 16.6 million VCRs are expected to be purchased in the United States. These devices enjoy great popularity. At least one VCR is found in 90 million homes and at least one PC is found in 42 million homes, specifically because of the convenience, entertainment and efficiency they bring. They are popular precisely because they are useful and technologically advanced. Nonetheless, a House subcommittee specifically rejected an amendment that would have assured consumers access to the next generation of these products. This isn't the first time someone has tried to stop the advance of new technology. In the mid 1970s, for example, a lawsuit was filed in an effort to block the introduction of the Betamax video recorder. At that time, representatives of Hollywood declared that the VCR would destroy their business. They could not have been more wrong. Last year video tape rentals accounted for a $16 billion portion of the entertainment market. Indeed, people in the movie industry have stated that video sales often make a movie profitable, and some movies are produced exclusively for the home rental market. The movie industry has not learned from history. The same doomsayers are at it again, decrying the lawful use of products by consumers. Their rhetoric has been updated for the digital age, but their message remains the same. This is an important debate that is currently taking place in the Congress and that is the discussion regarding how best to update the copyright laws for the digital age. In particular, I want to bring to the attention of my colleagues two significant developments that occurred in the last weeks, and to urge you to join as cosponsors of S. 1146, the Digital Copyright Clarification and Technology Education Act of 1997. In order to help focus the debate on the best way to update the copyright laws for the digital era, I introduced S. 1146 in September. This legislation is a comprehensive effort to address three broad areas of critical importance to the future of the Internet: (1) the scope of copyright liability for on-line and Internet service providers; (2) the use of computers by teachers, librarians, and students to foster distance learning opportunities and to promote the preservation of important historical works and resources; and (3) the proper implementation of two international copyright treaties. Subsequently, Representatives Rick Boucher and Tom Campbell introduced a similar comprehensive bill in the House (H.R. 3048) to foster the growth of the Internet for the benefit of everyone in society. Two important developments took place in the past two weeks that underscore the importance of a comprehensive approach to updating the copyright laws. First, on February 25th, 40 distinguished professors of intellectual property law and technology law said in a letter to the Chairmen of the Senate and House Judiciary Committees that they believe these two bills, S. 1146 and H.R. 3048, ``taken together, would bring U.S. law into compliance with the WIPO treaties while preserving the principle of balance which is at the heart of the American copyright tradition.'' They went on to say: ``At this crucial moment in the history of American intellectual property law, it is important that Congress do neither too much nor too little to bring copyright law into the digital era. In our view, the Ashcroft-Boucher-Campbell bills get the balance right.'' Second, just one day later, in a major blow to consumers and the high-tech community, a House subcommittee voted out legislation that would make it illegal to produce or even possess future generations of VCRs and personal computers. Faced squarely with the question of whether the next generation of products found in virtually every home in America should be deemed unlawful ``circumvention'' devices, a majority of the subcommittee voted for the interests of copyright owners over the interests of consumers and the computer companies that have done so much to make our country the technology leader of the world. The Subcommittee vote endangers both the liberties that consumers now enjoy and the vitality of the technology industry, which has been the premiere engine for growth in the United States. This approach also suggests the tendency of Congress to ``fix first, ask questions later.'' The bill demonstrates the dangers of fixing what we do not understand. Now is the time to draw a bright line against federal regulation of the computer industry. Washington must not start down the road of dreaming up regulations to fix problems that may or may not exist. I think it useful to recall what the Supreme Court had to say in ruling for consumers and against two movie studios in that case: ``One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible.'' As someone who filed an independent brief in the Supreme Court as the Missouri Attorney General in support of the right of consumers to buy that first generation of VCRs, I want to reassure consumers across the country that I will fight against legislation that would ban the next, exciting generation of technology. What kind of a bill should we consider? One that looks to the future. Above all, one that maintains the balance the professors of intellectual property and technology law have reminded us is at the core of our great copyright tradition and protection of property. The House subcommittee bill would make it all but impossible for someone to make a fair use of a copyrighted work, even though a fair use exception has been a fixture of copyright law from the beginning. What is more, the bill would actually make it illegal to make a copy of a portion of a protected work for fair use in certain circumstances. This is not balance. This is a blank check payable to Hollywood. Unlike the bill starting to move through the House, S. 1146 will spur technological innovation in small entrepreneur workshops and clean-room factories; it will create new educational opportunities in brick schoolhouses and family living rooms; and it will help preserve deteriorating manuscripts in your local library and the nation's largest universities. The Digital Copyright Clarification and Technology Education Act will encourage the use of computers and other new high-tech products to foster educational opportunities for everyone from children to senior citizens. Twenty-two years ago, Congress recognized that television could connect teachers in one part of town to students in another part of town. Today, technology has moved forward and has provided this country with fantastic new opportunities. We need to update the law so that schools may use computers to bring the world into the classroom and the classroom into the home. This legislation will ensure librarians and archivists may use the latest high-tech equipment to preserve deteriorating books, manuscripts, and works of art for future genrations to enjoy. New digital technology can enhance the educational experience and preserve our shared culture and history far into the future. Library patrons and students shouldn't be consigned to outmoded equipment when exciting new digital products are on the horizon. S. 1146 will guarantee that the centuries-old ``fair use'' rights of students, library patrons, scholars, and consumers will continue to be recognized in the new digital era of the Internet. In addition the legislation will encourage personal computer manufacturers and software developers to create new products which promote the productivity of Americans across the country. Innovators shouldn't be threatened with criminal penalties for bringing exciting new products to market. Instead, they should be encouraged to develop new products that will add enjoyment and convenience to our lives, while creating good new jobs for American workers. Finally, we will encourage the growth of the Internet by eliminating the threat of certain copyright infringement lawsuits that telephone companies, service providers, and others face in helping consumers connect to the World Wide Web. Technology won't stand still. We need to move forward with the consideration of copyright legislation that promotes new technology, while protecting intellectual property rights. In doing so we must be diligent in looking to the future, not to the past, or to interests that would halt innovation to serve their own parochial concerns. At this critical juncture in history, we need to be sure we get it right. We can only do so by maintaining the balance that has served our country so well and for so long.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I am pleased to take part in the debate to reauthorize the Intermodal Surface Transportation Efficiency Act of 1997, commonly known as ISTEA. This debate was originally scheduled to take place the first week in May. As we all know, the current measure is designed to end in the last week in April. Had we not debated this until the first week of May, there would have been an interruption in the funding and the opportunity to build highways in this country. So I express my appreciation to the majority leader for moving this debate up and making it possible for us to address this issue. When we are talking about the construction of infrastructure, which allows the body politic to be nourished by the stream of commerce, it is important that we don't interrupt that stream. I thank the majority leader, however, for the people of Missouri, the crisis is not yet over. The necessary funds for their road improvement projects still have not been approved. It is with great concern for the State of Missouri that I rise today. It is concern for everyone that relies on our transportation infrastructure to go to work or school, to the grocery store and to return home. It is concern for the workers who improve our existing roads and build new ones. I urge the Senate to quickly relieve the people of my state of the uncertainty caused by the lack of consistent funds, that hangs over their heads. It also is imperative that we pass a six year ISTEA authorization bill that gives states a fair return on their transportation dollars. These funds enable states to invest in improvement projects that affect Americans daily lives. Every day millions of Americans depend on our roads and bridges to safely and timely go about their lives. The need for safe roads is universal to every thriving community and the life of every American. Investment in our transportation infrastructure translates into safer and less congested travel. I have been contacted by several of my constituents expressing their frustration with Congress' failure to authorize the funds necessary to continue their road improvement projects. As they spend more and more time, stuck in traffic waiting to return home to their families, they wonder, ``Why Congress has not acted?'' They wonder, ``Why is ISTEA stuck in traffic, as well?'' While Congress has been unable to finish the job of passing the highway bill in a swift manner, there has been several Members of this body that have worked tirelessly to move this legislation forward. I am grateful, on behalf of the citizens of Missouri, for the work that has been done on this bill to ensure a fair return to Missourians for the kind of contribution that they make to the highway trust fund. I especially thank the senior Senator from Missouri, Kit Bond, for his irreplaceable effort in this battle. No Senator in this Chamber, in my judgment, has made a more conscientious and consistent effort to make sure that there was fairness in the allocation of these highway resources than Senator Kit Bond. Without his work, our current debate would not be to make sure the road construction continues unimpeded but to get it started again. To me, the issue is clear, and it has been clear throughout the entire debate. When a Missourian fills a gas tank and pays 4.3 cents in Federal fuel taxes, that money should go to improving roads rather than paying for additional Federal spending on some social program in a distant State. That is another improvement that this bill reflects, putting highway taxes back into the highway trust fund. I think the decision, which involved both the authorizing committee and the Budget Committee, to dedicate the 4.3 cent fuel tax to highways is a good one, and I am pleased to support that aspect of this bill. When this is all over, Missourians will now see a 91 cent return on each dollar as opposed to a dismal 80 cents that it received under the former funding scheme. Under the formula that was passed out of the Environment and Public Works Committee, Missouri will receive $3.6 billion compared to $2.4 billion that Missouri received over the last 6 years of the 1991 highway bill. Missouri's average allocation per year would be around $600 million as opposed to around $400 million that the State received under the old bill. I believe this allocation of highway trust money to the development and construction of highways is appropriate. I would add that this is not taking from other Government programs. This is the allocation of highway trust money for highways. Uniquely, we are beginning to get to the place where we focus resources that we take from people who use the highways on the highways. That is a major benefit. Although, I would like to see a 100 percent return on Missouri's investments, I appreciate the advancements made over the last few days. Also, I am committed to working with the Budget Committee to see that these additional funds are offset so we can stay within the budget caps that were approved by this Congress last session. Regrettably, we were unable to resolve these issues and a number of other concerns during the First Session. In order to continue funding to the states for their highway needs, Senator Bond authored the six month extension plan while ensuring that Missouri receives its fair share of highway dollars. The six month extension is scheduled to end April 30, of this year. I have recently received word from the Missouri Department of Transportation that their last bidding process for road construction contracts will be in March. I would like to share with you some of the long term projects that are in jeopardy because of our failure to act expeditiously. These are all top priorities for the Missouri Department of Transportation. ``The replacement or rehabilitation of seven bridges on Interstate 70 in the St. Louis area. A new exit on Route 40 in St. Charles County to Chesterfield Airport Road.'' Here is a few not to far from my home in Southwest Missouri the, ``Widening to five lanes of Route 71 in Newton County. Rehabilitation of the Interstate 44 bridge at Route 50 in Franklin County. Widen and resurface 3 miles of Route 39 in Barry County.'' The list goes on. Mr. President, federal funds make up about seventy percent of all funding for road and bridge construction in Missouri. With seventy percent of the funds hanging in uncertainty the Department of Transportation must end the bidding process. As the State of Missouri stops issuing construction contracts, contractors stop asking their employees to come to work. In order to put this into perspective I would like to share with you an e-mail that I received from one of my constituents from St. Louis, Missouri. This constituent has been in the road construction industry for nearly thirty years. He writes, . . . We the construction workers, have always strived to produce quality, on time projects. You, the U.S. Senate have failed once again to provide those needed funds in any sort of timely manor . . . I received a notice on January 22, 1998 that the Missouri Department of Transportation was going to cancel all future lettings after March 1998. I wish I could make you understand the devastating effect this will have on the Missouri Construction Industry, it's workers and the many related and non-related industries in our state. I was hoping to be contacting you regarding a better allocation of those tax dollars back to Missouri to better represent the amounts paid into the trust fund, I now find myself doubting if there will be any authorization at all . . . I do understand. I am grateful for the words of insight that I have received from my constituents. I quickly would like to address one more issue. This is the amendment that was voted on yesterday to take away State highway funds if they do not establish a blood alcohol content of .08 for drunk-driving violations. I opposed this amendment, not because I do not abhor drunk driving. Far too many of us have lost loved ones as a result of this tragedy. However, I believe States are in the best position to make the decision on the most effective way to eliminate drunk driving. The `stick' approach offered in the amendment was rejected by the 104th Congress, when we repealed the Federal speed limit. I believe the `carrot' approach, contained in the safety provisions of this bill-- which provides a .08 option--is the appropriate method to allow States the freedom to establish comprehensive programs to discourage drunk driving. That is why the National Governors Association, the National Association of Governors' Highway Safety Representatives, the National Conference of State Legislatures, the National Association of Counties, and the American Association of State Highway and Transportation Officials support the safety provisions contained in the bill, rather than the amendment offered by the Senator from New Jersey. The people of Missouri gave me the privilege of serving them in this body. We would be derelict in our responsibility to them and the people of this great country, if one person lost their job because of our failure to act. I urge the Senate to once again avert the continued loss of time to our families, the loss of funds to our states and the loss of jobs for our workers, and quickly pass a long term ISTEA bill.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise to address the disturbing comments made yesterday by U.N. Secretary General Kofi Annan. Apparently emboldened by his recent agreement with Saddam Hussein, Annan stated on ABC's ``This Week'' that the United States would have to consult with the Security Council before launching military strikes against Saddam Hussein. He stated: If the United States had to strike, I think some sort of consultations with the other members would be required. Let me state categorically that the United States does not require the permission of the United Nations to use our military forces in the pursuit of our national interests. Nor does the United Nations have any authority to require that the United States use our military forces if it would seek to deploy them. The United States has never, at any time, ceded to the United Nations any power to require the deployment of American forces against the wishes or the judgment of the United States, nor have we ceded to the United Nations any power to forbid the use of our military force. Mr. President, the comments by Secretary General Annan over the weekend are indicative of a growing arrogance of a United Nations that has grown accustomed to dictating American foreign policy toward Iraq. With U.S. policy toward Iraq in drift over the last 6 years, Secretary General Annan was able to take the lead in dealing with Saddam's provocations. What has the United Nations achieved? Has Saddam been punished? Have his weapons of mass destruction been destroyed? On the contrary, Saddam is stronger today than he was before instigating the crisis 4 months ago. He is better off across the board militarily, politically, and economically. He has blocked weapons inspections and moved weapons technology and equipment for several months. He has won greater prestige in the region and in the Arab world generally. He will be allowed to sell more oil. There is growing talk of dismantling the rest of the sanctions regime. The administration has compared Saddam to Hitler, but the President's policies are laying the groundwork for another Munich in the Persian Gulf. Saddam is the chief terrorist of a terrorist government whose weapons of mass destruction threaten the United States and our allies in the Middle East. The administration seems pleased, however, to make concessions to Saddam through the United Nations. More oil sales and a politicized inspection regime for Presidential sites in Iraq have meant victory for Saddam. Mr. President, the absence of Presidential leadership on Iraq has not served the United States well in the Middle East. Statements by the U.N. Secretary General that imply U.N. oversight of U.S. military forces are indicative of U.N. arrogance and disrespect for U.S. sovereignty. The deployment of our forces to defend our national interests is not subject to the approval of the United Nations or any other multinational organization. I intend to place before the Senate an opportunity for the body to state clearly the ability of the United States to make decisions about the deployment of its forces, without regard to, or prior consent from, the Security Council or any other international organization. I believe it is imperative that we make it clear that the United States will not cede any measure of sovereign control of its Armed Forces to the United Nations. The Constitution charges the President with the duties of Commander in Chief, and it is time for this administration to defend America's interests with clarity and resolve. The drift and inconsistency that has defined this administration's Iraq policy over the last 6 years will only be perpetuated by subcontracting U.S. foreign policy to the United Nations. If we continue to drift, Mr. President, the President of the United States will find himself asking permission of U.N. bureaucrats before he takes action to secure the interests of the United States. That cannot be allowed. Mr. President, I yield the floor.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I ask unanimous consent that a fellow from my office, Neil Kulkarni, be allowed privileges of the floor during the pendency of morning business and my remarks.

Mr. ASHCROFT. Mr. President, I thank the Senator from Minnesota for his kind remarks. I do share his concerns on human rights in China.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I ask unanimous consent that, in accordance with an agreement reached between the Members on the floor, that Senator Kerry of Massachusetts be allowed to speak following my remarks.

Mr. ASHCROFT. Mr. President, the Constitution gives the Congress an important duty in upholding the Constitution. The oath we take to uphold the Constitution gives us an obligation to vote against unconstitutional laws. The hearing I held in the Constitution Subcommittee convinced me that this is clearly one of those unconstitutional provisions that should be removed from the statute. I yield the floor.

Mr. ASHCROFT. Mr. President, I am pleased to take part in the debate to reauthorize the Intermodal Surface Transportation Efficiency Act of 1997, commonly known as ISTEA. This debate was originally scheduled to take place the first week in May. As we all know, the current measure is designed to end in the last week in April and, had we not debated this until the first week of May, there would have been an interruption in the funding and the opportunity to build highways in this country. So I express my appreciation to the majority leader for moving this debate up and making it possible for us to address this issue in a timely manner. When we are talking about the construction of infrastructure, which allows the body politic to be nourished by the stream of commerce, I think it is important that we don't interrupt that stream. I thank the majority leader. Although I rise to speak specifically on the amendment of the Senator from Kentucky, I briefly would like to talk about the underlying bill. I must say, I am grateful, on behalf of the citizens of Missouri, for the work that has been done on this bill to ensure a fair return to Missourians for the kind of contribution that they make to the highway trust fund. I especially thank the senior Senator from the State of Missouri, Kit Bond, for his tireless effort in this battle. No Senator in this Chamber, in my judgment, has made a more conscientious and consistent effort to make sure that there was fairness in the allocation of these highway resources than Senator Kit Bond. To me, the issue is clear, and it has been clear throughout the entire debate. When a Missourian fills the gas tank and pays 4.3 cents in Federal fuel taxes, that money should go to improving the roads of the State rather than paying for additional Federal spending on some social program in a distant State, and that is another improvement that this bill reflects, putting highway taxes back into the highway trust fund.

Mr. ASHCROFT. I thank the Senator from Virginia. His recognition of the contribution of Senator Bond of Missouri is appreciated and appropriate. I think the decision, which involved both the authorizing committee and the Budget Committee, to dedicate the 4.3-cent fuel tax to highways is a good one, and I am pleased to support that aspect of this bill. I believe that when this is all over, Missourians will now see a 91 cent return on each dollar as opposed to a dismal 80 cents that it received under the former funding scheme. Under the formula that was passed out of the Environment and Public Works Committee, Missouri will receive $3.6 billion compared to $2.4 billion that Missouri received over the last 6 years of the 1991 highway bill. Missouri's average allocation per year would be around $600 million as opposed to around $400 million that the State received under the old bill. I believe this allocation of highway trust money to the development and construction of highways is appropriate. I would add that this is not taking from other Government programs. This is the allocation of highway trust money for highways. Uniquely, we are beginning to get to the place where we focus resources that we take from people who use the highways on the highways. That is a major benefit. I would like to see a 100 percent return on Missouri's investments. I appreciate the advancements made over the last few days, and I am committed to working with the Budget Committee to see that these additional funds are offset so that we can stay within the budget caps that were approved by this Congress last session. I quickly would like to address one more issue. This is the amendment that was voted on yesterday to take away State highway funds if they do not establish a blood alcohol content of .08 for drunk-driving violations. I opposed this amendment, not because I do not abhor drunk driving. Far too many of us have lost loved ones as a result of this tragedy. However, I believe States are in the best position to make the decision on the best way to eliminate drunk driving. The ``stick'' approach offered in the amendment was rejected by the 104th Congress, when we repealed the Federal speed limit. I believe the ``carrot'' approach, contained in the safety provisions of this bill, which contain a .08 option, is the appropriate method to allow States the freedom to establish comprehensive programs to discourage drunk driving. That is why the National Governors Association, the National Association of Governors' Highway Safety Representatives, the National Conference of State Legislatures, the National Association of Counties, and the American Association of State Highway and Transportation Officials support the safety provisions contained in the bill. I look forward to the continued debate on the underlying policies in this bill. Now I would like to address the policy and constitutional principles raised by Senator McConnell's amendment, which I have cosponsored. The specific issue raised by Senator McConnell's amendment is whether we should reauthorize provisions in the ISTEA bill which treat two identically situated individuals differently, based solely on their race. Let me just say, again, the question or issue raised by Senator McConnell's amendment is whether we should reauthorize provisions of the bill which require that we treat two identically situated individuals differently only because of their race. Specifically, a provision in the ISTEA measure requires that 10 percent of the amounts made available under certain titles of the act shall be set aside for small business concerns owned and controlled by socially and economically disadvantaged individuals. The provision goes on to define ``socially and economically disadvantaged individuals'' by cross-reference to section 8(d) of the Small Business Act. If you go to that section, you will find that a Government contractor shall presume that ``socially and economically disadvantaged individuals'' include black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities. The net effect of these provisions is that if two bids come in from two subcontractors, one owned by a white male and the other by a racial minority, and the bids are the same, or even close, the job will go to the minority-owned company, not the low bidder. I find this objectionable as a matter of public policy. But the question facing the Senate is more than a debate over policy. The U.S. Supreme Court has made it clear that a constitutional principle is at stake. Members of this body have differed on the question of whether the Government should treat people differently solely because of their race. Personally, I believe that we all desperately want a future of racial reconciliation in which race is simply no longer relevant. People of good faith can differ on how best to achieve racial harmony. My own view is that the best way is to usher in a future of racial reconciliation by ending race-conscious Government programs, starting today. You don't end racial discrimination by promoting racial discrimination. But, while the race-based set-asides in ISTEA are part of this broader debate about whether the Government should let racial factors cloud its decisions--a debate that raises difficult questions--the ISTEA race-based set-asides are an easy case. In the first place, the particular race-based set-asides in the transportation bill represent an issue of constitutional principle. We cannot evaluate these set-asides as if we were legislating on a blank slate. The Supreme Court, and now a Federal district court on remand, have considered these set-asides and declared them constitutionally suspect. These courts did not consider a similar program, or a related program, but the exact program that is at issue today. In the 1995 Adarand decision, the Supreme Court held that race-based Government programs are subject to the most exacting level of scrutiny. The Court rejected the notion that the Government's use of race should be subject to a more relaxed standard because the Government's stated purpose was assisting rather than disadvantaging racial minorities. Instead, the Court made clear that when the Government makes distinctions on the basis of race, it is engaging in a dangerous business, and such laws will survive only if they are narrowly tailored to serve a compelling Government interest. The Supreme Court stopped just short of declaring the program unconstitutional, leaving that task for the district court after any additional development of the record that was necessary. In June of last year, the district court to which the Supreme Court referred the measure confirmed what seemed obvious; namely, that the Federal Government's race-based set-asides were unconstitutional under the Supreme Court's demanding test of strict scrutiny. As Judge Kane emphasized, the race-based presumption of economic disadvantage is both over- and underinclusive. Indeed, the district court said it is not narrow at all; it is both too broad on the one side and too narrow on the other side. It falls because it is not narrowly tailored. Judge Kane observed that the Sultan of Brunei--I assume because this is an Asian Pacific person, a minority--in spite of being one of the wealthiest persons in the world, would qualify because of race-based consciousness that is specified in the act and would presumptively qualify as a disadvantaged business entity. The district court understands that if you are trying to correct social and business disadvantage, economic disadvantage, and instead of using something that is narrowly tailored to address social and economic disadvantage you use something as broad as race, you are using a category which is overly broad and can't be considered to be strictly tailored--can't be said to be narrowly tailored. We know there are individuals in the Asian Pacific ethnic group or minority who are as wealthy as any individuals in our entire culture and some as poor as any individuals in our entire culture. The fact is that the racial identity of an individual does not carry an individual into the specific narrow category of being socially or economically disadvantaged. My concerns with the effect of the court decisions on Congress' ability to reauthorize these provisions, led me to convene a hearing in the Constitution Subcommittee of the Judiciary Committee of the Senate, which I have the privilege of chairing, to examine the constitutionality of the provision. At that hearing we were privileged to receive testimony from Valery Pech, who, along with her husband, Randy, runs Adarand Constructors, the plaintiff in the Adarand cases. She provided the subcommittee with a firsthand look at how this program has operated in practice and the impact it has had on their business. She testified how this program has caused their firm to lose several contracts, despite being the low bidder on the job. She has also testified that the beneficiaries of this program, which is purportedly targeted at disadvantaged business entities, are, in fact, well-established firms. It has already been noted on the floor of this Senate that most of the time those firms, when they win a contract, win it based on the fact that they are the low bidders, but when they are involved in this kind of contract for federally related tasks, they do not even have to be the low bidder. I think it should be said that the general public of the country does not want to spend its money if it is not really helping someone who is needy, but just helping someone who is a part of a broad category to get a job which they don't earn by being the best in the competition. The American way is not to award the prize to the one who has this race or that race, or has this disadvantage or that disadvantage by the law. The American system has been to reward achievement and merit. This is a fundamental value of our culture. It is also reflected in our Constitution, and it was reinforced in the Adarand case, both at the Supreme Court level and on the remand. This is not the only set of cases that has decided this. As a matter of fact, it has been represented on the floor that there has been no other case in which this has been decided. But I think, if not directly on point at least so similar that one could not ignore it, is the case of Houston Contractors Association v. The Metropolitan Transit Authority of Harris County. In that instance, it was another U.S. Federal district court which ruled, consistent with the U.S. Supreme Court, that such set-asides and quotas and preferences as are contained in the ISTEA bill are simply wrong. Those courts, I believe, would provide more than an adequate basis; they would provide a compelling argument that we adopt the amendment as propounded and proposed by the Senator from Kentucky. The two Adarand decisions make plain the unconstitutionality of the ISTEA set-asides. But removing this provision from the bill as unconstitutional should be an easy decision for Congress for a second reason--the program uses race for a plainly impermissible end. The Constitution obligates the Congress to reject unconstitutional legislation whether or not the courts have, as here, already held the legislation unconstitutional. Wholly apart from the conclusions of the two Adarand courts, it is obvious that the ISTEA set-asides use racial classifications in an impermissible way. Reasonable persons can differ as to whether the Constitution forbids the Government from using race as a factor in rectifying past racial discrimination. You might have a different situation if you were saying the statute set up a presumption that there had been racial discrimination and then used race as the basis for rectifying that racial discrimination. That is not what the Disadvantaged Business Enterprise Program does. As its name suggests, the Disadvantaged Business Enterprise Program seeks to assure that a certain percentage of Government contracting dollars flow to--and here are the words--``socially and economically disadvantaged individuals.'' The statute then defines a disadvantaged business enterprise as any business owned by members of certain ethnic groups and, since 1987, businesses owned by women of any race. In the statute, you say that you are trying to correct the problem, which is social and economic, and then you get to the remedy, and the remedy that is proposed is not based on social concerns, it is not based on economics; it is based on race. The truth of the matter is that the Supreme Court says you have to narrowly tailor the remedy and focus the remedy on the problem, but here the statute says that there is a problem that is social and economic but then has a solution which is racial. Obviously, the district court even saw the humor of the lack of fit between problem and remedy. So far does the racial remedy miss the social and economic problem that it would allow the Sultan of Brunei, one of the richest people in the world, to be presumed socially and economically disadvantaged. It is clear, you do not have to have a Supreme Court ruling, you do not have to have the district court rulings, you do not have to have a second district court ruling in the State of Texas to tell you this. I don't think you have to be a rocket scientist or law school professor. If the problem is social and economic and your solutions should be narrowly tailored, the solution should be social and economic. It should be focused on the problem. But instead of this statute focusing the solution on the problem of social and economic disadvantage, it focuses the solution on race, which wasn't something that was mentioned as the problem to begin with. The notion that every small business owned by racial minorities is somehow economically disadvantaged is nonsense. It flies in the face of reality. As a matter of fact, it is an affront to many of the businesses owned by racial minorities or women in this country. Many are very successful. For us to presume that because a black person or a Hispanic person or an Asian person owns a business it is disadvantaged or it is economically failing is for us to engage in rank prejudice, in my mind. I cannot imagine going up to someone and saying, ``I see that your computer business is disadvantaged, it's economically failing, it needs Government assistance, you are a charity case.'' ``Why?'' ``Because your race is a minority race.'' That is un-American to me. It would be an affront to me if I were told that in spite of my balance sheet, in spite of my portfolio, in spite of the fact that we had orders backlogged, we couldn't supply the demand, in spite of the fact our profits were up, we were still economically and socially disadvantaged just because of the way we were born, the color of our skin. That is an affront to the dignity of the individuals that this law apparently hopes to protect. I simply could not in good conscience go to my fellow Americans and say, ``Well, your bottom line may show that you are successful and your stock may be worth millions and you may be getting lots of contracts and you may be beating everybody else in your business, but you're a failure because of your race,'' or ``you are disadvantaged because of your race.'' That is something that we should not do as a country. Government should not go to people and say, ``We're going to presume you're a failure, we are going to presume you economically can't make it, that you are socially disadvantaged because you are of a certain race or a certain ethnic minority.'' I can't believe that. Why should we suggest that? We have seen time and time again, and we see it more and more frequently, people without regard to race, because of this economy. The economy of America doesn't make decisions based on race--look how many of the role models that are used in selling products all across this country are people of a wide variety of racial and ethnic backgrounds. Some of the most valuable endorsements in America are endorsements from people who, according to this law, would be socially and economically disadvantaged because of race. I would hate to tell some of those people they were disadvantaged. They might take out their wallet and buy me on the spot. They might buy everything that I own, and they could probably do it out of petty cash. I think the day has passed when we as a nation should try to tell people because they are of a particular race that they have an economic or social disadvantage, when it is pretty clear, when the facts of the matter just might be incontrovertible that they are not disadvantaged. At the hearing we held in the Constitution Subcommittee, a number of witnesses testified concerning the unconstitutionality of these set- asides and the futility of the Clinton administration's efforts to implement this flawed program and to continue to tell people that based on race alone they are somehow economically disadvantaged or unsuccessful. For example, Professor George LaNoue, of the University of Maryland, provided a detailed account of how the administration has failed to conduct the kind of detailed statistical analysis necessary to justify a race-based program. There is no evidence of how specific groups have been the subject of particular acts of discrimination and how the program is tailored to address these instances of discrimination. Thus, according to Professor LaNoue, there is no compelling interest to justify the use of race as a proxy or as a way of defining remedy in this context. Other constitutional scholars focused on the critical lack of narrow tailoring in this statute. As Professor Eugene Volokh of the UCLA law school stated: The statute as now written . . . is not something that can be saved through any regulations. It seems to be fatally overinclusive, and that strikes me as an easy case that it is not narrowly tailored. Easy case. Professor Volokh's testimony reflects the fact that the Constitution allows the Federal Government to use race as a factor only in the rarest of circumstances and only with surgical precision. Well, surgical precision would probably have lopped off the Sultan of Brunei, I might say. As the constitutional scholars on our panel concluded, the race-based set-asides in this bill are not drafted with sufficient precision or supported with enough statistical evidence to survive constitutional scrutiny. I ask unanimous consent to have printed in the Record an excerpt of the written testimony of Professor LaNoue and the full written testimony of Professor Volokh.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ASHCROFT

Mr. ASHCROFT. The Senator from Missouri thanks the Chair.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, the latest confrontation with Iraq shines a harsh light on an important truth. The collapse of the Soviet Union consigned to the ash heap of history has not created a world safe for democracy. The ``Evil Empire'' may have vanished but, alas, the world remains a dangerous and unpredictable place. In Iraq, we are confronted with a dictator as evil as Hitler. Saddam has killed thousands of his own citizens, licensed acts of terrorism, and produced and stockpiled weapons of mass destruction. It is a reign of terror unmatched in the post-cold war era. And how has this administration responded? Rather than draw a bright line in the sand, the President has been relegated to the role of spectator. The Commander in Chief has surrendered his moral authority at home and found himself ill-equipped to defend American interests abroad. At the moment of truth, America's acting Secretary of State--Kofi Annan--cut a deal with the devil and, tragically, a weakened, uncertain President endorsed the settlement before the ink had even dried. Today, we hear reports that there is no final consensus on what to do if Iraq violates the settlement. Have we known Saddam to keep his promises? What if he does not adhere to the agreement as in previous cases? The United Nations apparently cannot come to an agreement on what to do about it. The President's failure to lead has handed America's foreign policy to a cast of functionaries at the United Nations. Mr. President, U.S. foreign policy should not be subcontracted to Kofi Annan or written at the United Nations. America should not sacrifice one ounce--any other ounce--of her sovereignty to the architect and acolytes of one world government. This ill-conceived transfer of sovereignty has left America and her allies with an emboldened Saddam. In Iraq today, Saddam has a firmer grip on power, carries more regional prestige and can sell more oil. Some dare call this a triumph of diplomacy. As I indicated to Secretary Albright this week: ``Preservation of the status quo is not a diplomatic triumph, Madam Secretary, it's a tragedy. The clear winner of this round is Saddam Hussein.'' Instead of being penalized for his defiance, Saddam is winning bonus points: more oil sales, heightened standing, and new momentum to end the sanctioned regime. Ironically, in agreeing to agree, Saddam has committed to do nothing more than he was obliged to do all along. Mr. President, by the grace of God, America won the cold war. We triumphed over the ``Evil Empire'' of Lenin and Stalin. It is time for us to stand again for liberty and freedom. Saddam is a brutal dictator, a tyrant whose actions at home betray his intentions abroad. Let us sound a certain trumpet for America's vital national interests--in the Middle East and around the world. Let us not be governed by the whims and the will of Kofi Annan and the United Nations. Let America lead the world by the force of our principles and the power of our ideas, with the hope that one day the long tug of memory might look favorably upon us as we look approvingly on those who answered freedom's call in decades past. Mr. President, I ask unanimous consent that a column which appeared in the Washington Post, Friday, the 27th of February, by Charles Krauthammer be printed in the Record.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I yield the floor.

Mr. ASHCROFT. Mr. President, I ask unanimous consent that the Senate disagree to the amendment of the House, agree to the request for a conference, and the Chair be authorized to appoint conferees on the part of the Senate.

Mr. ASHCROFT. Mr. President, I ask the Chair lay before the Senate a message from the House of Representatives on the bill (S. 1150) to ensure that federally funded agricultural research, extension, and education address high-priority concerns with national multistate significance, to reform, extend, and eliminate certain agricultural research programs, and for other purposes. The PRESIDING OFFICER (Mr. Gregg) laid before the Senate the following message from the House of Representatives: Resolved, That the bill from the Senate (S. 1150) entitled ``An Act to ensure that federally funded agricultural research, extension, and education address high-priority concerns with national or multistate significance, to reform, extend, and eliminate certain agricultural research programs, and for other purposes'', do pass with the following amendment: Strike out all after the enacting clause and insert:

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise today to acknowledge and honor the achievement of Assist International, World Serv, the Hewlett Packard Foundation, and the Erie Area Chamber of Commerce in delivering medical aid to the people of Ethiopia. This group of organizations has worked to provide medical equipment to Ethiopia that can save hundreds of lives. This generous gift, valued at over one million dollars, will bring hope and health to many in Ethiopia. These organizations and the concerned Americans associated with them have demonstrated the true spirit of charity. The group cooperatively has donated a state-of-the-art cardiac heart monitoring unit to the Black Lion Hospital--Ethiopia's leading teaching medical facility. In addition to the cardiac unit, beds, mattresses, and other system support equipment will be provided. World Serv and Assist International have a strong history of providing humanitarian aid to relieve human suffering in needy countries. Assist International donated medical equipment to a site in Mongolia which was then approved by the World Health Organization to perform open heart surgery. The Hewlett Packard Foundation donated the medical equipment in the Black Lion Project in its goal to ease human suffering internationally. Finally, the Chamber of Commerce of Erie, Pennsylvania, has joined together with the other organizations and has raised the funding for transportation, installation, and training costs of this project. Specifically, I commend the Erie Area Chamber of Commerce for this cooperative effort and for holding the third annual ``Aid to Africa'' banquet to raise funds for humanitarian projects. The Black Lion project is an example of the compassion and generosity that other countries appreciate and admire in the United States. It gives me great pleasure as the chairman of the Senate Foreign Relations Africa Subcommittee to know that Americans are finding ways within the private sector to aid other countries in Africa. It is my pleasure to ask the members of the Senate to join me in recognizing and honoring the work of the members and staff of Assist International, World Serv, the Hewlett Packard Foundation, and the Erie Area Chamber of Commerce.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise to continue to explain the basis for my opposition to the nomination of Frederica Massiah-Jackson to be a U.S. district judge for the Eastern District of Pennsylvania. Although I have already spent time on the floor detailing this nominee's record, I think it is important and valuable to spend the time necessary to demonstrate the serious flaws of this nominee and to also highlight the caliber of the nominees that we are receiving from the President of the United States. There are a number of categories into which my objections to this nomination might fall. One would be a disrespect for the court and its environment, perhaps most clearly typified by the willingness of this nominee to use profanity in the courtroom. No. 2, a contempt for prosecutors and police officers that is evidenced in the way she has treated them and handled them as they have appeared in court and the way in which she has handled evidence assembled by those officers. Those are two major problems that I have with this particular nominee. No. 3, the concept of leniency in sentencing; the effort made by this nominee as a judge in the State of Pennsylvania to reduce the sentences which were given to those who had been convicted of crimes is notable. It has, as a matter of fact, even caught the attention of the appellate courts at which time those sentences have been reversed. These are among the most important factors that lead me to the conclusion that Judge Massiah-Jackson should not be confirmed as a United States district court judge. She should not be considered for a lifetime responsibility in administering justice in the United States of America; that in the event that the President refuses to withdraw this nomination, which he should do, that the Senate of the United States of America should reject this nomination. Let me just go through some of these points in order to establish a factual basis for these conclusions supporting the categories which I have mentioned. First is the contempt for prosecutors and police officers that Judge Massiah-Jackson has evidenced in the conduct of her responsibilities as a judge in Pennsylvania. In the case of Commonwealth v. Ruiz, Judge Massiah-Jackson acquitted a man accused of possessing $400,000 worth of cocaine because she did not believe the testimony of two undercover police officers, Detective- Sergeant Daniel Rodriguez and Detective Terrance Jones. It was the second time she had acquitted alleged drug dealers nabbed by the same officers. The first time, the two undercover officers testified that they found two bundles of heroin on a table right next to the defendant's hand. The judge not only refused to believe this testimony, she went one step further. As the officers were leaving the courtroom, the judge reportedly told spectators in the court: ``Take a good look at these guys [the undercover officers] and be careful out there.'' This identification by the judge was reported in the Philadelphia Inquirer. Detective-Sergeant Daniel Rodriguez confirmed this outrageous courtroom incident in a signed letter to the U.S. Senate. The detective-sergeant had the following comments regarding the incident, and I quote: I thought, ``I hope I don't ever have to make buys from anyone in this courtroom.'' They would know me, but I wouldn't know them. What the judge said jeopardized our ability to make buys. And it put us in physical danger. I really believe that this officer sincerely wrote that letter and that he intended for the letter to say exactly what it said and that he felt the sense of physical danger that was occasioned by the special identification that the judge had made of him and another police officer. Detective Terrance Jones, the other undercover officer that was identified by Judge Massiah-Jackson in open court, according to the Philadelphia Inquirer, also confirmed the facts in a signed statement to the committee staff. He stated that the comments ``jeopardized our lives.'' Detective Jones also notes: As a law enforcement officer who happens to be African American I am appalled that self-interest groups and the media are trying to make the Massiah-Jackson controversy into a racial issue. This is not about race. This is about the best candidate for the position of Federal judge. Let me go to another case, the case of Commonwealth v. Hicks. In this case, in an action that led to a reversal by the appellate court, Judge Massiah-Jackson dismissed charges against the defendant on her own motion. Although the prosecution was prepared to proceed, the defense was not ready because it was missing a witness--a police officer who was scheduled to testify for the defense apparently had not received the subpoena. The defense requested a continuance to clear up the mixup concerning the subpoena. The commonwealth stated that it had issued the subpoena. The defense did not allege any wrongdoing or failure to act on the part of the commonwealth. Nonetheless, without any evidence or prompting from defense counsel, Judge Massiah-Jackson decided she simply did not believe that the commonwealth's attorney subpoenaed the necessary witness. Judge Massiah-Jackson held the commonwealth liable for the defense's lack of preparation for its own unpreparedness, and Judge Massiah-Jackson, on the motion of the court, dismissed the case without even the suggestion from the defense that the case should be dismissed. The facts ultimately revealed that the subpoena had been issued, but the officer was on vacation and had not received it. It was not the fault of the commonwealth. Judge Massiah-Jackson's decision was reversed on appeal as an abuse of discretion. The appellate court concluded that, ``Having carefully reviewed the record, we are unable to determine the basis for the trial court's decision to discharge the defendant. Indeed the trial court was unable to justify its decision by citation to rule or law.'' There is a lot of discussion about whether we need to send this nomination back for additional information and for hearings before the Senate Judiciary Committee. This particular case, for instance, was discussed at the hearing. When asked by a Senator if she had any comment or explanation of the situation, Judge Massiah-Jackson just replied, ``No, Senator, I don't.'' It occurs to me that it is not necessary to reconvene the committee and to move this matter back from the floor of the Senate asking that there be opportunities for explanations for cases like that when those opportunities were available then. Commonwealth v. Hannibal is a case that is demonstrative of this particular nominee's lack of judicial temperament. In court, in response to prosecutor's attempt to be afforded an opportunity to be heard, the following exchange took place on the record: The Court. Please keep quiet, Ms. McDermott. Ms. McDermott for the Commonwealth: Will I be afforded---- The Court. Ms. McDermott, will you shut your f***ing mouth. That is from the transcript of June 25, 1985, at page 17. Judge Massiah-Jackson was formally admonished by the Judicial Inquiry and Review Board for using intemperate language in the courtroom. This incident, incidentally, was also discussed by the committee with the judge, and the conduct was admitted. In the case of Commonwealth v. Burgos and Commonwealth v. Rivera, during a sentencing proceeding, the prosecutor told Judge Massiah- Jackson that she had forgotten to inform one of the defendants of the consequences of failing to file a timely appeal. Of course, such a failure would prejudice the commonwealth on appeal. Judge Massiah- Jackson responded to this legal argument with profanity, stating, ``I don't give a [expletive deleted].'' This incident was discussed at the committee hearing, and the conduct was also admitted. District Attorney Morganelli of Northampton County, PA, has suggested that the reason there are not more instances of foul language on the record is that Judge Massiah-Jackson's principal court reporter routinely ``sanitized the record.'' It does not appear to be a coincidence that both of these profane outbursts were directed at prosecutors. Instead, Judge Massiah- Jackson's foul language appears to be part and parcel of her hostility to law enforcement. Let me move to the issue of the leniency in sentencing which has been characteristic, I believe, of this judge's record. In the case of Commonwealth v. Freeman, the defendant shot and wounded a Mr. Fuller in the chest because Mr. Fuller had laughed at him. Judge Massiah-Jackson convicted the defendant of misdemeanor instead of felony aggravated assault. She sentenced him to do 2 to 23 months and then immediately paroled him so that he did not have to serve jail time. The felony charge would have had a mandatory 5- to 10-year prison term. Judge Massiah-Jackson explained her decision stating, ``The victim had been drinking before being shot,'' and the defendant ``had not been involved in any other crime since the incident.'' Here we have an individual who shoots another individual, and this judge not only makes it a misdemeanor so that the sentence can be reduced from a minimum of 5 to 10 years to 2 to 23 months, but then paroles immediately the individual so that no jail time is served after the conviction. The judge explains this behavior saying that the person who had been shot had been drinking as if somehow, I guess, if you are drinking you are eligible to be shot; and that the defendant ``had not been involved in any other crime since the incident.'' This case was not discussed at the hearing. No appeal was taken from this case. In the case of Commonwealth v. Burgos, during a raid on the defendant's house, police seized more than 2 pounds of cocaine along with evidence that the house was a distribution center. The defendant, Mouin Burgos, was convicted. Judge Massiah-Jackson sentenced the defendant to only 1 year's probation. Then District Attorney Ronald Castille criticized Judge Massiah- Jackson's sentence as ``defying logic'' and being ``totally bizarre.'' He commented, ``This judge just sits in her ivory tower * * * She ought to walk along the streets some night and get a dose of what is really going on out there. She should have sentenced these people to what they deserve.'' This case was discussed at the hearing, and Senators and the judge had an opportunity to explain their positions. No appeal was taken from this case. In the case of Commonwealth v. Williams, a first-degree robbery, unreported sentencing reversal case, I would like to provide just one more example of Judge Massiah-Jackson's leniency in sentencing, an example that I think is also relevant to whether we should have another hearing on this nominee. In the case of Commonwealth v. Williams, the defendant robbed a 47- year old woman on the street at the point of a razor. The defendant used the razor to slash the woman's neck and arms and took her purse. The defendant had to undergo surgery to repair the slashed tendons in her hand and was forced to wear a splintering device that pulled her thumb back to her wrist. The defendant pled guilty to first-degree robbery. Under the Pennsylvania sentencing guidelines, that offense carries a range of 4 to 7 years, with a mitigated range of 3\1/4\ to 5 years. Despite these sentencing ranges, Judge Massiah-Jackson sentenced the defendant to a mere 11\1/2\ to 23 months. In order to do so, Judge Massiah-Jackson not only had to deviate substantially below the guidelines range but also had to ignore a mandatory weapons enhancement that raises the minimum sentence 1 to 2 years. The Commonwealth did appeal this meager sentence, and Judge Massiah-Jackson was reversed for her sentencing errors. Now, this decision is important not only because it demonstrates her leniency in sentencing but also because of what it says about the equity of giving Ms. Massiah-Jackson an additional hearing. We have heard a lot about Judge Massiah-Jackson's right to be heard and have been given the impression that she has been the victim of sandbagging by her opponents. It is true that there is information that was not available at the time of the committee's hearing. This sentencing case, for example, was not addressed at the hearing. But why wasn't it addressed at the hearing? That is no one's fault but Judge Massiah- Jackson. The committee's standard questionnaire asks every candidate to list any judicial decisions which were reversed on appeal. Judge Massiah- Jackson failed to list this case. Indeed, she testified that she had never been reversed on a sentencing appeal. So if this case wasn't debated or discussed at the hearing, it wasn't debated or discussed because at the hearing she had failed to disclose this when the committee had requested that she disclose it, and when asked additionally if there were cases like this upon which she had been reversed she informed the committee that she had not been reversed on sentencing appeal when in fact this case represented such a reversal. Now, it seems ironic to me that when we finally find out about the existence of those things which she said did not exist, she should be accorded a second hearing now to explain that which she failed to disclose. I think that is a serious problem. This is not only a failure-to-disclose problem but this is the disclosure of something which was specifically denied in the hearing. I make this point to make clear that this is not just a simple matter of giving someone a right to confront new allegations. She had the opportunity to respond to the allegations in this setting by providing the evidence in the first instance, or the case or the notification that she had been reversed on appeal, and in the second instance by not denying that she had ever been reversed on appeal. It strikes me that we are creating a troubling precedent by affording nominees a second hearing at least in part to explain materials that were requested prior to the first hearing. Let me move on to the case of Commonwealth v. Smith. This is leniency not just in sentencing but a predisposition on the part of this judge to suppress evidence and to do so improperly. Judge Massiah-Jackson has also demonstrated leniency in improperly suppressing evidence. The case that perhaps most dramatically illustrates this point is Commonwealth v. Smith, a case discussed by the chairman of the Judiciary Committee in the Chamber yesterday. It is a case that I also mentioned. In this tragic case, the victim, a 13-year-old boy, was raped at knifepoint in some bushes near a hospital. Eventually, the young boy managed to run away from his assailant nude and bleeding. Two nurses at the hospital saw him, and he told them what had happened, pointing out the bushes where he was attacked. The two nurses called the hospital security guards. They saw the defendant in the case emerge from the bushes with his clothing disheveled and then saw him walk quickly away. The women yelled out for the man to stop, and the police arrived on the scene and apprehended the defendant. The defendant denied raping the boy, but the police searched him and found a knife matching the description of that used in the rape. At that point the police arrested the defendant. Shockingly, Judge Massiah-Jackson ruled that the police lacked probable cause to arrest the defendant and suppressed all evidence, including the identification of the defendant by the two nurses. Now, not surprisingly, the appellate court, when confronted with this dubious judgment, reversed Judge Massiah-Jackson. So the situation is this, that Massiah-Jackson, lenient in suppressing evidence, was reversed by the appellate court. It has been pointed out, and I would thank Senator Specter for having so pointed out, that after a remand to the trial court the defendant was acquitted in a new trial before a different judge. But what seems to have received less attention is that all this occurred after Judge Massiah- Jackson was reversed by the appellate court. Unlike the second judge who conducted a full trial, Judge Massiah-Jackson threw out the evidence on the ground that the police lacked even probable cause to arrest the defendant despite his proximity to the crime scene and the victim, and the other facts that are attendant thereto, including the identification by the individuals who were there at the time of his arrest. It is, of course, one thing to acquit someone after a trial but the notion that the police officers did not even have probable cause to arrest the defendant is just shocking, and the appellate court agreed. And the litany, incidentally, of illustrations regarding leniency in sentencing could go on. Last year there were 50 separate cases that were singled out just as exemplary of this leniency, but that was just last year. And organizations, law enforcement organizations, organizations that serve the culture by providing the safety and security for persons and their property which defines a civilized culture, have come out saying this individual should not be confirmed as a U.S. district court judge. The Philadelphia Lodge of the Fraternal Order of Police announced its opposition to the confirmation of Massiah-Jackson on January 13 of this year. And just yesterday I had the privilege of attending a press conference in which Philadelphia Fraternal Order of Police President Richard Costello made his opposition to this nominee unmistakably clear. The National Fraternal Order of Police announced its opposition on January 20. In coming out against this nominee, here is what the National President of the Fraternal Order of Police, Gilbert Gallegos, stated: ``Judge Massiah-Jackson has no business sitting on any bench, let alone a Federal bench.'' After describing the incident in which Judge Massiah-Jackson pointed out undercover police officers in open court, Mr. Gallegos stated, ``I cannot adequately express my outrage.'' The National Fraternal Order of Police President concluded, ``To confirm Judge Massiah-Jackson would be an affront to every law enforcement officer and prosecutor in the Nation, all of whom have a herculean task of fighting crime. We shouldn't have to have [both] the judges and the criminals against us.'' I note the presence of the majority leader in the Chamber, Mr. President, and I would gladly yield to the majority leader with the understanding that at the conclusion of his remarks my right to speak in the Chamber be retained.

Mr. ASHCROFT. Mr. President, I observe the absence of a quorum.