Robert Bennett

Mr. BENNETT

Mr. BENNETT. Mr. President, I suggest the absence of a quorum.

Mr. BENNETT

Mr. BENNETT. Mr. President, I suggest the absence of a quorum.

Mr. BENNETT

Mr. BENNETT. I thank the Senator from Pennsylvania for his courtesy and pay tribute to him and the Judiciary Committee for their effort in dealing with this most vexatious problem. When the asbestos problem burst into the American consciousness, everyone was concerned there would be a way to compensate those who are victims of this difficulty. Unfortunately, certain members of the trial bar developed what I would call a business plan that was based on two fundamental principles: No. 1, venue shopping; and No. 2, a deliberate pattern of overwhelming the legal system so the various cases could not be heard on their merits. Those who adopted this business plan have been tremendously successful. They have driven 75 companies into bankruptcy. They have created enormous litigation all over the country. Unfortunately, the outcome in terms of the victims has not been what anyone would want, with the possible exception of those who were behind the creation of the business plan in the first place. The net effect of what we have seen in the asbestos litigation is to take an American tragedy and turn it into an American disaster, with a relative pittance for the victims; an undeserved windfall for people who have no health problems; and an overwhelming bumper crop of cash for the trial lawyers who developed the plan in the first place. There is a great uprising of demand that we do something about this. That demand is legitimate. The Congress should act. We do need a national solution, even though we have seen progress take place--not at the Federal level but at the State level. It is very interesting to watch what has been happening as various States have grappled with this challenge and done their best to deal with the two problems I have identified: the venue shopping and the strategy of overwhelming the system. One breakthrough in this regard came from a Federal judge. Her name was Janis Jack. I am told she had something of a medical background. She was trained as a nurse. So when these cases came before her she instinctively realized there was something fundamentally wrong with the medical claims. Without going into the detail of what happened before Judge Jack, I quote the statements she made as she handed down her scathing decision: These diagnoses were driven by neither health nor justice, they were manufactured for money. The court finds that filing and then persisting in the prosecution of silicosis claims, while recklessly disregarding the fact there is no reliable basis for believing that every plaintiff has silicosis, constitutes an unreasonable multiplication of the proceedings. I pause here to say she is highlighting what I talked about before, that there was a conscious business plan to overwhelm the system. She calls it ``an unreasonable multiplication of the proceedings.'' Continuing the quote: When factoring the obvious motivation, overwhelming the system to prevent examination of each individual claim, and to extract mass settlements, the behavior becomes vexatious, as well. Therefore, the court finds that the firm will be required to satisfy personally the excess costs, expenses, and attorney fees reasonably incurred because of such conduct. I am not a lawyer, but I understand when a Federal judge uses the words ``vexatious'' it is probably not good for the people who are in her court listening to her. And she is requiring the law firm that brought the case to pay all of the costs of the case. That has sent a chill throughout the plaintiff's bar who thought they had a free ride with their business plan. The other thing that has happened as various States have looked at this has been the setting up of inactive dockets, or deferral registries, two terms with which I was unfamiliar before I got into this. They make eminent good sense. All they do is say to those plaintiffs who, in fact, are not sick: We will let your claim stand, we will not dismiss it out of hand, but we will put it in an inactive docket or a deferral registry. In other words, your claim cannot be pursued until you get sick. Just because you have a doctor's certificate that says you might get sick does not mean you are entitled to damages. Interestingly enough, the fallout from Judge Jack's ruling where she found that doctors had gone beyond medical practice in order to give these certifications that would allow people to come forward as if they were plaintiffs, means that some doctors are facing jail time and some lawyers are facing jail time as a result of the findings in Judge Jack's court. The combination of a judge who finally says, You need to focus on whether people are ill, and State legislation that says, We will not allow the courts to be overwhelmed by the claims of those who are not ill, has begun to taper off the level of asbestos cases and has caused some people to say we have turned the corner; that the trust fund established in the bill before us is an idea whose time has gone; that it is not necessary to have a trust fund to deal with these issues. Others say: No, we have to have the trust fund. We have to have the bill before us. One of the perplexing things to me, as I listened to people in the business community discuss this, has been to discuss how split the business community is, how there are so many companies that come to me passionate in their insistence this bill be passed, or they say there will be disaster going on uninterrupted into the unknown future. Just as passionate are other companies who come to my office, sit down with me and say: This bill is the biggest disaster we have ever seen. You cannot allow it to happen. If this bill happens, we will go out of business. That is not a minor gulf between the proponents and the opponents. I have tried to figure out why business men and women examining this as dispassionately as they can have come to such diametrically opposite positions. I have found, for me, what is an explanation. I have prepared two charts that will demonstrate this. Both of these are based on assumptions. We must understand that this entire debate is based on assumptions. No one really knows. There are those who say the $140 billion called for in the trust fund will be more than enough to take care of all of the claims. There are those who say it is nowhere near enough. There are those who say the claims will go down as a result of the trust fund, and there are those who say the claims will increase as a result of the trust fund. No matter how you slice it, every argument everybody is making, including the ones I will make, is based on an assumption that is not provable. But I have done the very best I can to come up with sources that are reliable. So here is why I think the business community is split. It has to do with where you fall on the trust fund chart, what tier you are in, and basically how much money you have to pay. Here is the first list that comes up, and this is compiled by a consulting firm to the bankruptcy court that looked at asbestos claims. I have summarized in this column of the chart, if there is no trust fund, the estimated liabilities of the companies listed. That means, Armstrong World Industries, according to the consulting firm, if there is no trust fund, will face a liability of roughly $2 billion. Babcock & Wilcox will face a liability of roughly $2 billion--and so on all the way down--U.S. Gypsum, $4 billion. I will come back to U.S. Gypsum in a minute because it helps make my point. So this is the column that shows the liability of these 10 companies if the trust fund is not enacted. Now, this is the column that shows what they will pay to the trust fund. In other words, their liability will go from this number to this number, if the trust fund is established. Here in this column is the difference. For these 10 companies, it is $20 billion. If I were the CEO of any one of those companies, I would be very strongly for the trust fund. Now, I reject the idea this is being driven by K Street and lobbyists. This is a very logical business decision on the part of the CEOs of these companies, and I do not think any of them had anything to do with this allocation. It is the way the trust fund was structured. As they read the details, they said: This makes good sense for us. Let's be for it. But out of this chart comes a fundamental question that I have at the bottom of the chart. If there is a $20 billion difference between their liabilities and their contributions, who will make up the difference? So now let's go to the second chart. On this chart is a list of companies with estimated outlays, if there is no trust fund, that will be substantially less than those on the first chart. Foster Wheeler--I understand this number may change. These are estimates. All of these numbers may change. But I have heard, just this morning: Hey, we are trying to recalculate that, Senator. We want you to be exactly accurate. It might be $79 million, but it may not. But it will be relatively low compared to the number on the next chart. So let's understand all of these. But here is Foster Wheeler, Oglebay Norton. They will have no obligation--no obligation--if the trust fund does not pass. Why? Because they have insurance. They took precautions. They have insurance that will pay the claims. They will have no obligation. National Service Industries will have $11 million if the trust fund is not enacted, and so on. Now, Oglebay Norton will owe the trust fund $495 million in order to be relieved of zero obligation if the trust fund does not pass. Who will make up the difference? It will be made up by companies like these, some of which earn so much lower numbers than the numbers that are here that this could very easily jeopardize their survival. Some of the companies on this chart might not survive if the trust fund is passed. You have no obligation, but you have to pay half a billion dollars over a 30-year period? There are some companies here whose total revenue is $100 million a year, and their annual responsibility to the trust fund is $19 million. Twenty percent of their total revenues will be required, and they have no exposure or relatively no exposure. There is not a company here with exposure, no matter how high it may be, that would not be satisfied by 2 or 3 years' contribution to the trust fund, but they are going to have to make that contribution for 30 years. The companies on the first chart will see their stocks go up dramatically as soon as this bill is passed, and I do not begrudge them that. I think that is wonderful. But the other companies that will make up the difference will not only see their stocks fall, they may disappear and see their employees put out of jobs, their employees put on the unemployment line. I do not think there was anything sinister about the way in which the trust fund decisions were made. But I do not think it has been analyzed properly with respect to the real-world impact of those decisions. So, to me, that is why we have the split in the business community, with some companies saying this is a great idea, and other companies saying, with some irony, over our dead body, because they may be very much dealing with a dead body here. All right. Does that argue that we should not have Federal legislation? No. The progress in the States, causing this level of litigation to level out and begin to turn down, is not even throughout the country. We need a national standard. Ohio has led the way. Ohio has bills that are causing the litigation to begin to dry up. We are seeing the pattern of venue shopping dry up. But we still do not have any action out of California or New York. And, if I may, I remember when the Governor of Utah was once asked: What is the greatest economic development agency you have in Utah? And he said: The California State Legislature. I think we can wait a long time before the California State Legislature can be depended upon to deal with this issue. So we do need a national bill. But the one thing everybody on either one of these charts wants is certainty. Let's go back to the first chart and the example I was talking about with respect to U.S. Gypsum or USG. Within the last week or two, USG announced they were setting up a reserve for their asbestos liabilities. They said: We are setting up the reserve with $900 million in cash and $3 billion in contingent notes. Their stock went up 15 percent the next day because their investors said there is a degree of certainty. Now, if you take that $3.9 billion figure they determined was the amount of their liability and you compare it to what the consultants said their liability was--$4 billion--you are very much in the ballpark with roughly the same figure. Now, the interesting thing about the contingent notes they said they would sign for the $3 billion is the contingency. The contingency was whether this bill passes. If this bill does not pass, they will then be on the hook for the $3 billion in contingent notes. If the bill does pass, they are out with only the $900 million. As we see, they are only required to pay, under the trust fund, $797 million. So as to the $900 million, they may even get a refund from that if this bill passes. That demonstrates the value of certainty. They came up with certainty, one way or the other, and their stock went up 15 percent. We can give people certainty with the right kind of Federal bill that does not have the problems that this trust fund has. So what do I search for in a bill? Well, the first one should be obvious from the presentation I have made: a restructuring of the liabilities in the trust fund. And if the trust fund were to go away, that would not bother me either, if we could have an understanding of how we could take the experience in the States and make it work on the Federal level. Back to Judge Jack and her rulings and the actions of the various States, we discovered there really are only a few things that need to be done to tame this monster. The first one is to stop the venue shopping. Well, if we pass a Federal bill, we can do that. The Judiciary Committee has worked hard in that direction, and I commend them for it. No. 2, building on what Judge Jack discovered, we can have the right kind of medical certification. All she did was force these people to prove they were injured and the claims went away. I am not satisfied the medical certification in this bill is strong enough. I would prefer to take the kind of medical certification we have at the State level, particularly Ohio, and say if we can write that into the Federal bill, then we are on our way toward realizing Judge Jack's goal in eliminating those who are not medically certified. The third thing we can do is adopt the position that many of the State courts have adopted, which simply says: You can file your claim if you are not sick because you think you might be, but we are going to put that claim in an inactive docket, or a deferral registry--pick whichever term of art you prefer--and it will sit there unacted upon until you can come in and prove you are sick. If we can do those three things--stop the venue shopping, get a legitimate medical certification, and set up inactive dockets--at the Federal level, the State experience says we can solve this problem. Whether there is a role in all of that for the trust fund, I am not sure. I am enormously respectful of the senior Senator from Pennsylvania. He is a close, personal friend and has been the entire time I have been in the Senate. I commend him and the members of the Judiciary Committee for their efforts in working on this bill. But I do have a sense that in their focus on the disaster this has been throughout our history they have crafted a solution that, like the generals in the Army, may be the solution to the last war. They may have been fighting the last war instead of addressing what has currently happened. So I understand the Senator from Texas has an amendment, which I intend to support. I understand the Senator from Arizona, Mr. Kyl, has a provision that presumably will affect this difference between people on the two lists. I am interested in that. I am not sure it is the solution, but I want to move in this direction. I think we need a bill. I want to support a bill. As the bill currently stands, I think it is in need of the kinds of changes I have outlined.

Mr. BENNETT

Mr. BENNETT. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BENNETT

Mr. BENNETT. Mr. President, I move to reconsider the vote.

Mr. BENNETT

Mr. BENNETT. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BENNETT

Mr. BENNETT. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 295, which was submitted earlier today.

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

Mr. BENNETT

Mr. BENNETT. Mr. President, I ask unanimous consent that there now be a period of morning business, with Senators permitted to speak for up to 10 minutes each.

Mr. BENNETT

Mr. BENNETT. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 297, submitted early today.

Mr. BENNETT. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motions to reconsider be laid upon the table, and that any statements relating thereto be printed in the Record, without intervening action or debate.

Mr. BENNETT

Mr. BENNETT. Mr. President, I have listened to this debate with interest. There are a few things perhaps to get on the record so we have it clear if someone wishes to go back in historic fashion and look at all this and say what really happened. I would like to make a few comments to that extent with respect to country-of-origin labeling. Conferences are for the purpose of resolving differences. The Senate had no statement at all with respect to country-of-origin labeling, so the Senate bill would have allowed the law to go forward in the way that many of the speakers here tonight have asked. The House bill would have killed it--not delayed it, killed it. The House voted overwhelmingly to eliminate country-of-origin labeling. We had to come up with a compromise. We could either have the Senate position--that it goes forward--we could have the House position--that it dies--or we could have something in between. In the spirit of most conferences, we came up with something in between. We have not killed the program in this conference report. We have delayed the implementation. So the Senate did not get what it wanted, which was full speed ahead. The House did not get what it wanted, which was to kill the program. We have a compromise. I think we should understand that so those who say, We caved in to the House, the House did it to us, without any consultation or conference with the Senate--well, understand that is not true. We arrived at a compromise between two very different positions. It does not satisfy the people in the Senate, and it probably does not satisfy the people in the House. Now, I will say from a personal point of view, I am getting tired of this debate. It came up when I became chairman of the subcommittee the first time. We have had to deal with it several times now. I think this is an issue that should be resolved in the authorizing committee. I think the authorizers should come to the conclusion it is a good idea and we should go ahead with it or they should come to the conclusion we made a mistake in the farm bill and we should kill it. They should not ask us in the appropriations process to make the decision that the authorizers need to make. The point has been made here that the date we set on this, with this compromise between the House and the Senate, carries to a point beyond the expiration of the current farm bill. That is true. That means the authorizers will have an opportunity, before we visit this issue again on the Appropriations Committee, to make their decision. The authorizers will have an opportunity to either re-endorse the idea or to kill it. So I say to those who feel so strongly on both sides: Talk to the authorizers when it comes up in the farm bill and make the decision--do we really want to go ahead with this or do we really want to kill it?-- and not ask those of us in the appropriations conference to have to deal with it. Get it off our plate and put it in the place where it belongs. I make one other comment. As I have looked at the issue, I find myself on the side of those who think it is a mistake. I have no pressure from consumers who want a label on meat that says where it comes from. I do not think they would pay that much attention to it. The history of country-of-origin labeling for virtually every other product is that consumers are mildly interested but that it does not significantly affect their purchasing. If someone really believes this would make meat more attractive to customers, he or she has the opportunity to put that label on right now. A voluntary program would make it available everywhere. But if someone wants to promote Iowa beef, they have the opportunity right now as a marketing device to say, This is Iowa beef, without having to go through all of the regulatory requirements that are connected with this law. So once again, this is an issue that the authorizers should look at. This is an issue that those of us who have been forced to deal with it are tired of. We hope this is the last time we will have to deal with it in an appropriations bill. Mr. President, I ask unanimous consent that a letter sent to me from the USDA Acting General Counsel regarding sections 794 and 798 of the fiscal year 2006 Agriculture Appropriations Act be printed in the Record.

Mr. BENNETT. Mr. President, it is my understanding we now have 2 hours equally divided to discuss the conference report.

Mr. BENNETT. Mr. President, I am pleased to present to the Senate the conference report to accompany H.R. 2744, which provides funds for the Department of Agriculture, Food and Drug Administration, and the Commodity Futures Trading Commission for fiscal year 2006. I will mention a few highlights of the bill to demonstrate why it benefits not just farmers and ranchers but every constituent of the Members of the Senate. On nutrition, this bill provides for more than $12.6 billion in child nutrition programs, $5.2 billion for the Women, Infants and Children nutrition program, and nearly $108.3 million for the Commodity Supplemental Food Program. I know particularly in response to Katrina that there has been great concern about WIC in the country as a whole. This bill funds WIC. For the farmers, ranchers, and conservation, there is more than $2 billion in farm ownership and operating loans, $840 million for conservation operations, and more than $1 billion total for all USDA conservation programs. For those of us who are concerned about research, there is more than $2.5 billion for research on nutrition, crop and animal production, bioenergy, genetics, and food safety. There is funding for cooperative research with agriculture and forestry schools in every State and with Native Americans, Hispanic, and historically Black centers of learning, and extension programs that teach nutrition in low-income communities. In pest and disease control, there is more than $820 million to protect American agriculture, forests, and horticulture from plant and animal diseases. For those interested in rural development, the bill provides for nearly $5 billion in single and multifamily housing in rural areas, and more than $6 billion in electric and telecommunications loans. Turning to the Food and Drug Administration, there is a $62 million increase over fiscal year 2005, with key increases of $10 million for drug safety, $7.8 million for medical device review, and $10 million for food safety. Overall, however, the spending level remains consistent with the previous year and does not represent for the entire bill a major spending increase. I ask for the support of all Senators for this conference report. I reserve whatever time may be left after the Senators have exercised their rights.

Mr. BENNETT. Mr. President, that is my understanding. This is the reservation of time on my side so that Senators will know the time is reserved for them, and if one Senator might otherwise be tempted to run on, the order can be called so that every Senator will have his right for speaking reserved. It does anticipate time will go back and forth between the two sides.

Mr. BENNETT. Mr. President, I ask unanimous consent that all time be yielded back on the conference report.

Mr. BENNETT. Mr. President, I ask unanimous consent that at the conclusion of my remarks, the following Senators on our side be allowed to speak on the conference report: Senator Burns for up to 15 minutes; Senators Enzi, Craig, and Thomas for up to 10 minutes each; Senator Thune for up to 7 minutes; and Senator Cornyn for up to 5 minutes.

Mr. BENNETT. Mr. President, I ask unanimous consent that the Senate now proceed to the conference report to accompany the Agriculture appropriations bill; provided further that following the completion of that debate it be laid aside, that the vote occur on adoption of the conference report tomorrow morning immediately following the remarks of the two leaders.

Mr. BENNETT

Mr. BENNETT. Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 9 a.m. on Thursday, November 3; I further ask that following the morning prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved, and the Senate then proceed to a vote on adoption of the conference report to accompany the Agriculture appropriations bill; I further ask that upon disposition of the conference report, the Senate resume consideration of S. 1932, the deficit reduction bill.

Mr. BENNETT

Mr. BENNETT. I suggest the absence of a quorum.

Mr. BENNETT. If there is no further business to come before the Senate, I ask unanimous consent the Senate stand in adjournment under the previous order, following the time allocated to the Senator from Oregon.

Mr. BENNETT

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

Mr. BENNETT. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of S. Res. 296, which was submitted earlier today.

Mr. BENNETT

Mr. BENNETT. Mr. President, tomorrow the Senate will complete action on S. 1932, the deficit reduction bill. There are currently 16 amendments in the queue, and the first vote in the series will occur on the Agriculture appropriations conference report, as noted. We will begin voting shortly after 9 a.m. tomorrow morning, and Senators should plan on staying in and around the Chamber throughout the day tomorrow. We will have at least 17 back-to-back votes.

Mr. BENNETT

Mr. BENNETT. Mr. President, most of the speakers who have discussed this subject have talked about Judge Roberts' qualification. There is no point in my referring to them or repeating them again. There is a point that I do wish to make with respect to the entire process, which I think needs to be emphasized and stressed. It is this: Nominations are not elections. Read the Constitution, and we see that it allows for elections. It provides for elections. It says there are places where elections are appropriate. The President is elected. The Vice President is elected. The Members of the Senate and House are elected. But members of the Cabinet are not; they are appointed by the President. And to allow the election process to have an influence, they have to be confirmed by the Senate. But they are not elections. The same thing is true very much with respect to the judicial branch. A nomination for the Supreme Court is not an election. The reason I make such stress of that is because there are many groups out there who think this is an election. There are big ads on television. They are organizing demonstrations. They are walking around with placards. That is what you do when you try to influence voters in an election. This is not an election. The Founding Fathers understood that it should not be an election. There are some who have made up their minds long in advance of any nomination as to what they are going to do. I think, quite frankly, if President Bush were to somehow resurrect John Marshall and send his name to the Senate to be the Chief Justice of the United States, People For the American Way and Ralph Neas would insist that he was badly out of the mainstream and unqualified to be Chief Justice, even though history says he was the greatest Chief Justice in our history. But if he were picked by George W. Bush, that group would immediately say he is radical, he is out of the mainstream. We are getting the same thing with respect to Judge Roberts--an election campaign complete with television ads and placards and demonstrations saying that Judge Roberts is out of the mainstream. I do not know where you go to find mainstream today. I do not know exactly where the mainstream is. I know where the left bank of this particular stream is. The New York Times is against Judge Roberts. That was predictable. That was as sure as the Sun would rise--that the New York Times would be opposed to anybody George W. Bush proposed. The Washington Post is usually thought of as being fairly close to the left bank, but the Washington Post looked at this nominee and said this is a qualified nominee. The American Bar Association tries to be as much of the mainstream as they can. They have given Judge Roberts' nomination their highest support, ``well qualified,'' unanimously. Maybe they are not mainstream enough for some of these people who are using this argument. The Los Angeles Times is not thought of as a rightwing organization. The Los Angeles Times said it would be a travesty if we didn't confirm Judge Roberts by a wide margin. Why do we want to confirm somebody like Judge Roberts? Why is the President's nomination a good one? In my view, it is because Judge Roberts understands one fundamental truth. Along with the one I have just given, a second fundamental truth, if you will, is that nominations are not elections and judges are not politicians, or more appropriately judges are not legislators. You have elections for legislators. You should not have elections for judges. Judge Roberts put it this way in describing his understanding of his responsibility. We have heard this before with respect to this nominee, but it is worth repeating. He said to the committee: I come before the committee with no agenda. I have no platform. Again, judges are not legislators. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. I will remember that it is my job to call balls and strikes and not to pitch or bat. In other words, he is the umpire, he is not a player. We have seen an example brought up in an effort to try to derail Judge Roberts' nomination of how he called ``balls and strikes'' and how he was not a legislator. It has been dropped now because those people who raised it didn't realize that it was going to be analyzed properly and turn out to be embarrassing to them rather than to the judge. But there was the case of the 12-year-old girl in Washington who, while waiting with her friend at the Metro station to buy a Metro ticket, happened to eat a single french fry, and she was arrested, handcuffed, and taken down to the station. Judge Roberts upheld the action of the Metro Police. Horrors, came the groups. There is an election. We can grab onto this as an example that we can sensationalize and win votes on. Then they examined the matter very carefully, and we got Judge Roberts' actual opinion in this case. He did not victimize a 12-year-old girl who was arrested for eating a french fry. This is what he said in his opinion that once again outlines the truth of his position that he will be an umpire, not a player, not a legislator. He said: No one is very happy about the events that led to this litigation. A 12-year-old girl was arrested, searched and handcuffed, all for eating a single french fry in a Metro rail station. The child was frightened, embarrassed, and crying throughout the ordeal. The District Court described the policies that led to her arrest as ``foolish,'' and, indeed, the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea but whether they violated the Fourth and Fifth Amendments to the Constitution. He put the emphasis in the right place. This was a stupid law. It was passed for some other reason and turned out in administration to be a stupid law. It was passed by legislators, people with legislative responsibility. It was repealed by legislators. It should not be repealed by the judge just because it is stupid. I remember a conversation that took place after the Supreme Court ruled on the bipartisan Campaign Reform Act. It is no secret that I opposed that act as vigorously as I could. We passed it nonetheless. The President signed it. Then a lawsuit was filed. It went all the way to the Supreme Court. The Supreme Court found that the law was constitutional and upheld it. I will not reveal names because these were private conversations, but a Member of the Senate had the occasion to have a conversation with a member of the Supreme Court. The Member of the Senate said to the member of the Supreme Court: How could you uphold that law? That is a terrible law. The member of the Supreme Court appropriately said: You are right. It is a terrible law. You shouldn't have passed it. In other words, the Supreme Court should not be the one that corrects our mistakes unless we violate the Constitution. The Supreme Court should not take a position unless we violate the Constitution. The Supreme Court is not made up of legislators who fix things; it should be made up of people who examine the law. Even if the law is foolish enough to punish a 12-year-old girl for eating a french fry on the Metro, the Supreme Court should say: Legislators, this is a dumb law. You ought to fix it. But it is not our responsibility to legislate. The real reason so many groups have tried to turn Judge Roberts' nomination into an election rather than a nomination is because they lost the election and they are hoping they can turn the Supreme Court into a superlegislature that is beyond the reach of voters. Clearly, that is not what the Founding Fathers had in mind. Clearly, when they put the responsibility to make the choice in the hands of the President, they were saying this will be a nomination and not an election. If the Founding Fathers had wanted the Supreme Court at the national level to be open to the electoral process, they would have done what others have done at the State level. There are States where the appointment to the supreme court of the State is an electoral process. Whether that is good or bad is the subject for another conversation. But in this circumstance, we are talking about the U.S. Constitution, which every Member of this Chamber has taken an oath to uphold. If we are going to uphold the Constitution of the United States and defend it against all enemies who would undermine it, be they foreign or domestic, we should preserve the constitutional process of nominations coming from the President of the United States. He has to answer to the people for his decisions. He should be the one to make the nomination. He is the one who is given the powers specifically. We can say, Mr. President, we don't consent to that because we think you made a mistake, but we in the Senate should not condone those who are trying to turn the nomination process into an electoral process. Because we should understand as Members of the legislature that members of the judiciary are not legislators, and we should not move in a direction of turning them into legislators by participating in an election-type process in vetting their credentials. If this man is qualified, he should be confirmed. If he is unpopular with the electorate, that should be irrelevant. The Constitution does not allow for that to intrude upon the confirmation process. There is no question but that John Roberts is qualified. I end with a conversation I had with one of my colleagues who made up his mind to oppose Judge Roberts. I said to him: In a theoretical situation, suppose you had everything you own on the line in a nasty lawsuit, and you had a legal problem where you could lose everything. Who would you choose to defend you? Which lawyer would you hire, John Roberts or a member of the Senate Judiciary Committee? He laughed immediately. He said: Bob, it isn't even close. If John Roberts is the obvious choice for a personal attorney for someone who needs real help, why should he not be the obvious choice for the Nation that needs real help? He will be a superb Chief Justice, and I will vote for him with great confidence.