Jeff Bingaman

Mr. BINGAMAN

Mr. BINGAMAN. I ask unanimous consent that following Senator Craig's statement, I be recognized to speak, then Senator Thomas, and then Senator Durbin in that order.

Mr. BINGAMAN. I was just wondering if those of us who are on the Senate floor could agree on an order so my colleague from Illinois would know when he should be planning to come to speak. I know the Senator from Idaho plans to speak and Senator Thomas would then want to speak. Would that be the order? And then I would speak and Senator Durbin after that.

Mr. BINGAMAN. Mr. President, parliamentary inquiry: I would ask my colleague to yield for a question.

Mr. BINGAMAN

Mr. BINGAMAN. Mr. President, I rise to support the passage of S. 189, the 21st Century Nanotechnology Research and Development Act. I appreciate Senator Wyden's leadership on this issue and the cooperation of him and the other sponsors of this legislation in responding to a number of concerns I had with the original bill, and in particular with the provisions of the bill authorizing programs at the U.S. Department of Energy. In the last Congress, I introduced legislation on this topic, S. 90, which was referred to the Committee on Energy and Natural Resources. That bill provided authorizations for nanotechnology programs in the Department of Energy which are now incorporated, in a streamlined form, in this bill. This is a good bill for our country's high technology future, and I urge that it be passed.

Mr. BINGAMAN

Mr. BINGAMAN. I am glad to yield.

Mr. BINGAMAN. Mr. President, reclaiming my time, it is a very good question. My own view would be we clearly have in the Senate for well over a century now delegated the initial responsibility for reviewing judges to the members of the Judiciary Committee. I would suggest the President should be consulting with members of the Judiciary Committee, both Republicans and Democrats, and if he determines he can't get a single Democrat on the Judiciary Committee to support his nominee, that should be a signal to him he should find a nominee who could be supported by Democrats, as well as Republicans. It is true the Democrats are in the minority at this point. But a great many Members of this body are Democrats and a great many members of the Judiciary Committee are Democrats. If to a person they are opposed to the nominee after they learn of the qualifications and the positions taken by the nominee, I think that is a signal to the President he should find someone else. Clearly, that is not the course he has chosen to follow. I see my colleague from New Jersey. Let me yield the balance of my time to him.

Mr. BINGAMAN. Mr. President, let me first compliment my colleague from Virginia for his vast knowledge of western song lyrics. I think he has recited several of his favorite lyrics. I always preferred the famous western song ``Who Drank My Beer While I Was in the Rear.'' That always seemed to be one that isn't played near enough. I am sure that is part of the Senator's repertoire. Let me comment on a few of the things the Senator said. First, he said that justice delayed is justice denied; there is a terrible burden we are putting on the American people by not filling these judgeships. Let me call to the attention of my colleagues what has happened as far as judicial vacancies during the last 8 years. You can see from this chart that, in January of 1995, there were 63 judicial vacancies. That was when the Republican majority was here in the Senate. That number increased to 110 judicial vacancies by January of 2002. At that time, the Democrats took the majority in the Senate and the number came down precipitously, down to 60 vacancies by the time the Republicans gained control in the Senate and, at that point, of course, it has continued to go down. So now, in January of 2004, the expectation is that we will have 40 judicial vacancies. This is the best record as far as filling judicial positions, vacancies, of the Senate in many years. We have fewer vacancies today and will have fewer by the end of this year than we have had for a very long time. So we do not have this problem that the public is being denied judges, judgeships. I am very proud of the record of accomplishment that we have achieved so far in this Congress. I think we have approved a great many judges. We have approved a great many of this President's judges. This other chart, which has been up several times during last night's discussion says the whole thing. It basically makes the point that we have approved 98 percent of the judicial nominees who have been sent to us. In my State, we have approved several very good nominees for Federal judicial positions. I have supported those. As I indicated earlier, those nominations were brought forward, in my view, in the way the system is supposed to work. That is a system whereby the President and the White House--the President's legal counsel--essentially contacted me, as well as, of course, Senator Domenici, my colleague, and assessed our views with regard to people they were intending to nominate. That is the way the system is supposed to work. That is what advice and consent has come to mean and should mean in our system. The President seeks advice, the Senate gives its consent, or withholds its consent. I have been very pleased to give my consent to the nominations that the President has chosen to send forward with regard to nominees for judicial positions in New Mexico. I also know and would like to say that I have assumed--and I continue to assume--that after my advice is requested and after my consent is sought, that if I had strenuously objected to some of those nominees and had stated so, the President at that point would decide to go ahead and choose someone else. In my State, we have a great many people who are practicing attorneys, who have held key positions in our State in various capacities, who are qualified to serve as Federal judges. That is one of the great strengths of our legal system. I am sure that is true of every State in the Union. If one of those individuals, for some reason, is not the appropriate choice and Senators from the State involved determine that, then the President should take that into consideration. My colleague from Virginia talked about being consulted by the President about Roger Gregory before the President made a decision on that appointment. That is entirely appropriate. That is the way the system ought to work. The President and his legal counsel should be consulting Senators about the appropriateness of various candidates for judicial office before the nominations are sent to the Senate for consideration. I think the reason we are here tonight, the reason there is angst about this issue about these four judges who have not been confirmed, the 2 percent, is because as to those 2 percent we did not have that consultation. The members of the Judiciary Committee, the ranking member of the Judiciary Committee, Senator Leahy, the other members of the Judiciary Committee on the Democratic side, did not have that opportunity to be consulted, and nominations were sent forward that, in fact, were not acceptable, were not strongly supported, had no support, and had strong opposition to them. Accordingly, we have agreed not to move forward with those nominations, which I think is entirely appropriate. The notion that the Senate should have the right to consent--and that is contained in article II, section 2 of our Constitution--implies in it the idea that the Senate should have the right to withhold its consent, and that, in fact, we have exercised that right with regard to 4 of the 172 nominees who have come to the Senate floor so far for consideration. That is a pretty good record for this President. I think this President has done much, much better than the previous President in getting his nominees confirmed. There was great frustration on the part of many of us in the prior administration, and it has been expressed here on the floor, that very good nominees were being sent forward by President Clinton and were not afforded a hearing. It was not as though there were objections that would be expressed, there were not articulated objections. It is just that they would not be given a hearing because of some view by some Member that the person should not be entitled to a hearing before the committee. That practice has not been followed with regard to President Bush's nominees. We did not follow that when the Democrats were in the majority in the Senate, since President Bush has been in office, and, of course, it is not being followed at this time. Let me put this in a larger context, which is something we have tried to do here during the recent hours; that is, the context that we have major issues facing our country today. There is significant work-- undone work--still crying out for attention in the Senate before this session of Congress is over. The majority leader tells us we will adjourn on November 21. That is a week from tomorrow. I don't know if we will make that deadline or not. We have had other deadlines that have not been made. But that is the schedule as we now know it. We will adjourn a week from tomorrow, and we are essentially wasting this week talking about a set of issues that have been talked about and talked about and talked about during recent months. I hope that before we leave this year, we will not only finish the appropriations bills, which clearly need to be done to keep the Government functioning; I hope we will also conclude work on a Medicare prescription drug bill, which will preserve the Medicare system but which will provide a genuine benefit to Medicare recipients. I am informed that some time--perhaps by the end of the week--we will have some better indication as to what resolution is finally coming out with regard to those issues that have been in conference. I hope, also, we get a decent Energy bill. I have complained repeatedly about the process that has been followed with regard to the Energy bill because Democrats have been excluded from those conference meetings. But I still hold out hope that the final product, which we have been assured we will be able to see 48 hours before the final meeting of the conference--I am informed--I still hold out hope that final product will be something that will be good for the country and, on balance, will be a step forward. I don't know that that is the case. Until we see the bill, we will not know that is the case. We don't know what is being put in the bill that was not in the Senate-passed bill. We don't know what is being put in the bill that was not in the House- passed bill. But clearly there is important work the Senate needs to be doing. We have very few days in which to accomplish that work. I regret that we are spending so much time on this single issue. Frankly, in my State, if I go around New Mexico and ask people what do they think we ought to be having all-night sessions to resolve here in the Congress, this would be a very distant item on the list of priorities. I think the first priority would probably be, Why don't you do something significant on the health care crisis? Why don't you do something about the 44 million people who have no health care coverage in this country? That number continues to rise. I have served in the Senate now for a little over 20 years, and that number has risen during most of that time. We have not acted effectively to deal with that health care crisis and, accordingly, we have a great many people in my State who do not have access to quality health care, do not have access to affordable health care. We need to do something about the cost of health care. We need to do something about the availability of health care. Of course, we need to do some things to try to maintain our job base, the jobs about which we all are concerned. We have lost over 3 million jobs since this President came into office. I am glad to see we are finally, now, in the last month, beginning to see some jobs created on a net basis. We created more jobs last month than we lost. I hope that will continue. It is going to have to continue for some period before we are at a break-even point. But I hope we are at a break-even point in the near future because, clearly, there are a lot of people looking for jobs, looking for good-paying jobs, and we see too many of those jobs going overseas, too many of our better paying jobs, particularly manufacturing jobs, leaving for other parts of the world. My colleague from New York is here. He is a member of the Judiciary Committee and has been intimately involved in these issues related to judicial nominations. I know he spoke last night. He is ready to speak again and give his views on this issue, so I will yield the remainder of my time to him.

Mr. BINGAMAN. I object.

Mr. BINGAMAN. Will the Senator concede that there is a difference between a Senator objecting to a unanimous consent request which had not been presented before on the Senate floor and the stage of a filibuster?

Mr. BINGAMAN. Will the Senator yield for a question?

Mr. BINGAMAN. Will the Senator yield for a question?

Mr. BINGAMAN. Mr. President, let me speak for a few minutes on this issue that brings us here at this early hour and then also talk about another issue that I think also deserves some serious attention by the Senate; that is, the health care crisis that we face in the country. But let me first talk about this process for nominating and confirming Federal judges. The obvious question is, How is the system intended to work under our Constitution, under article II of our Constitution? As I understand it, based on my reading of article II of the Constitution, the President has the authority to nominate judges and it is fairly clear from the language of that document that the intent is that he will consult with the Senate, that he will make a nomination based on that consultation, that then the Senate will review the nominee and confirm or not that nominee--then either go forward or not with that nomination. In fact, with regard to most nominees I would say the system works very well. In fact, it has worked with previous Presidents. It is working with this President. Yesterday I was present at a hearing of the Judiciary Committee where we had a nominee from New Mexico who has been nominated for our district court, Federal district court there. I support that nomination, the nomination of Judith Herrera for that position. Senator Domenici strongly supports that nomination. He recommended her to the President for that position. Frankly, the White House consulted with me--consulted, I am sure, with Senator Domenici but consulted with me as well--and asked if I would support this nomination. I had the chance to meet with the nominee, to talk with her, and of course I have known her for many years, and I was very glad to support her nomination. That is essentially the process we have followed with regard to all of the nominees for Federal district court positions in my State of New Mexico and with regard to the court of appeals position which is reserved for our State, New Mexico, on the Tenth Circuit Court of Appeals. There again, the President and Senator Domenici both consulted with me before a nomination was sent forward. I had a chance to review the nominee and concluded that I would strongly support that nominee. So the system, in fact, generally works the way it is intended to work. We get very good people serving on our Federal courts as a result of that. But for some reason as regards some of these judges we are arguing about, the President has chosen not to follow this approach. In some cases the President has chosen to nominate people without consulting with the Senators from the States those individuals hail from and has done so in many cases over the strenuous objection of Senators from those States. There is strong opposition from the States, for example, to the two nominees I was hearing about a few minutes ago from the Senator from Pennsylvania, Judge Kuhl and the other is Judge Brown, from California. In both of those cases, as I understand it, the President has determined to go ahead with nominations. He has nominated those individuals and he has done so over the strenuous objection of both Senators from the State from which those two nominees come. To my mind, it is somewhat unprecedented in the Senate that both Senators from a State would object strenuously to a particular nominee and the President would say, that's your problem; I am going to go ahead and nominate them anyway. What's more, the Judiciary Committee would go ahead and confirm or recommend those two nominees for confirmation over the strenuous objection of the two Senators from the State I involved--to me that is unprecedented. We have all this talk about a blue-slip procedure. That is out the window as far as I can tell. The blue-slip procedure used to mean that unless you got--unless the judiciary had returned to it a blue slip signed by each Senator from that State, there would not even be a hearing on the nominee. That was the system that prevailed. Not only are we to the point where, even if the Senators from the State where the nominees come from do not return a blue slip would they be voted out, they can even affirmatively object to those nominees and the Judiciary Committee goes ahead and votes them out at any rate. They put them on the Senate floor and they file a cloture motion and they say we are going to have a vote on the Senate floor on these individuals; we could care less what the Senators from the State involved think about these nominees. That, to me, is an unprecedented procedure. I am not familiar with that. I think about my own situation. As I have indicated, I have been pleased with the courtesy and consideration I have received from the White House and, of course, from my colleague, Senator Domenici, with regard to nominees by this President for Federal judicial positions. I have always been consulted before the nomination was sent forward. I have been given a chance to meet with those nominees and have been given a chance to get back and say: Yes, these are people I would support. I have assumed in going through that process that, if I had come to a different conclusion, if I had determined that I had a strong objection to one or more of these nominees, that would also be honored and that the President would find someone else who was acceptable to, of course, the President but to the two Senators from the State as well before going forward with the nomination. I have assumed that. I still assume that. But that has not happened in the case of some of these nominations. As I understand it, tomorrow we are going to have a vote on a cloture motion on the two judges I mentioned. You can argue about the merits of the positions that these judges have taken, but the thing that sticks in my craw, the issue that I want to focus on is the process. Why would I want to vote in favor of going forward to confirm a judge when I know the two Senators from the State that the judge comes from strenuously object to that judge being confirmed? If the shoe were on the other foot, if in fact I was the Senator who was objecting, I would hope my colleagues in the Senate would support my right to object and to keep that person from being confirmed as a Federal judge. I am not sure they would do that, but I would certainly request they do that. That is exactly the request we have received from the two Senators from California, one of whom serves on the Judiciary Committee, and both of whom have spent extensive time looking into the records of these two judges. Why in the world are we not willing to defer to their view on this and hold up on confirming these judges? It seems to me that is the tradition of the Senate and we ought to adhere to that tradition. I think the President ought to adhere to that position. We are talking here about what might be wrong with the process for confirming judges.

Mr. BINGAMAN. I object.

Mr. BINGAMAN. I am glad to yield.

Mr. BINGAMAN. Mr. President, let me first say I think that is a very good question. The answer is, no, I would not vote to move forward with a vote on Judge Owen because of the other problems that have surfaced with regard to her views and her judicial record. But I think as I approach this issue we have a threshold question. The threshold question is: Do the Senators from the State that is affected support these nominees? If they don't, the President shouldn't nominate them, and the Judiciary Committee should not report their nomination to the Senate floor. If they do support these nominees, there is still an obligation on each Member of the Senate to review the nominee and to determine whether in fact we believe that nominee should be confirmed for a Federal judgeship. That is the process we are going through. I would say I do not think just getting the support of the Senators from a particular State entitles a person to a lifetime appointment to the Federal bench, but I do think that absent the support and in the face of strong opposition from the Senators from the State that is affected, the Senate should not be considering the nominees under these circumstances. To criticize those of us who do not want to move ahead with an up-or- down vote on that on the theory we know how an up-or-down vote will come out on these issues, the President has very good ability to line up Republican Senators to vote for virtually anything, so far as I can tell--not just on judicial nominations, but virtually anything he opposes around here. I am amazed, frankly, at some of the willingness of some of my colleagues on the Republican side of the aisle to march down to the Senate well and cast a vote in favor of positions the President is advocating regardless of how it would affect our constituents. We know what the outcome will be if we go to an up-or- down vote. I think it would be a disservice to the Senators from the States affected for us to go ahead and confirm these individuals over their strenuous objections. I hope when we get to these votes on cloture tomorrow on these particular judges we have talked about that we will not move ahead and invoke cloture. I do not think, as far as I know, based on the information I have, none of them are individuals I would favor promoting to the positions they have been nominated for. I know my colleague is here and may wish to speak as well. I don't want to use all of our time. Let me just talk for a minute about another issue. In many ways, this is a very unusual process we have gotten into here with a 30-hour diversion from the other business we could be pursuing here in the final weeks of this legislative session. There is other important business. Frankly, when I go home to my State of New Mexico, it is difficult for me to explain to people in my State who I represent why I am not dealing with some of the issues that directly affect them in their daily lives. Instead, we are here talking through the night about judicial nominees in many cases who are strongly opposed by the Senators from the States they come from. I want to speak for just a few minutes about the health care crisis in the country. Earlier this year, I introduced the first part of a series of proposals to try to strengthen our Nation's health care safety net. That bill is entitled Strengthening Our States, or the SOS Act, of 2003. It seeks to protect the Medicaid Program, to improve the Medicaid Program. That is a program that is under severe stress and pressure because of the budgetary problems in our States. Dianne Rowland and Jim Talin of the Kaiser Commission on Medicaid say that: Medicaid is the glue that helps hold our health system together. It takes on the highest risk, the sickest and most expensive populations from private insurers and from Medicare. That is a lot of people in my State who depend on the Medicaid system. We need to take steps to strengthen that system. Like a waterfront community that seeks to set up barricades against a rising river, defending the Medicaid Program from attacks such as the idea of a block grant is a top priority. This administration began this year recommending we adopt essentially a block grant approach to Medicaid. That concept is one which I strongly opposed. I am glad to see many of our Governors have now come out in strong opposition to that concept. It would be extremely adverse to those who depend upon this very important system in our States. It is critical to maintain Medicaid, as it has correctly responded as a safety net program by adding coverage to millions of people as the country has slipped into recession. We are now pulling out of that recession--at least we all hope we are. Certainly the economy indicates we are. But as we have been in this slow period of economic growth, it has been clear the Medicaid system has been extremely important. The total number of individuals who are uninsured in this country have increased. Nearly 44 million people are without any coverage. Once the future of Medicaid is assured and protected, we also need to take some additional steps to confront the fact this nearly 44 million people--or 15.2 percent of the population--is without health insurance for the entire year of 2002. That is an increase of nearly 4 million people over those who were uninsured in the year 2000. The numbers for 2003 undoubtedly have gotten even worse. The report of the National Coalition on Health Care says the confluence of powerful economic forces fueled by terrorist attacks of September 11 have unleashed a perfect storm that increases dramatically the number of uninsured in the United States with as many as 6 million people in total losing their coverage. In light of this, I just make the point again it is somewhat shocking to me that we are spending 30 hours--essentially that means this whole week. The truth is our ability to get work done this week has been substantially impaired by the decision of the majority here in the Senate to devote 30 hours to talking about this handful of judicial nominees they would like to have confirmed for Federal judicial positions in spite of the serious problems that have been found with regard to that program. The number of people in our country who need health care is staggering. New Mexico ranks second only to Texas in the percentage of its citizens who are uninsured. In New Mexico, we are the only State in the country with less than half of our population currently covered by private health insurance. That is a rather shocking statistic when you think about it. But it is true. Forty-two percent of the Hispanic population has employer-based coverage; that is, nationwide. That is not in New Mexico. That is in comparison to 67 percent of non-Hispanic whites who have employer-based coverage. To address the growing crisis, we have been working with the American College of Physicians since last fall on a legislative proposal we are calling the Health Coverage Affordability Responsibility and Equity Act of 2003. This legislation does a variety of things which I want to educate my colleagues on at some time when we have more opportunity to do so. Our colleague from New Jersey wishes to speak again on the issue that brings us here at this early hour, so I will yield to him, but I think the course we are following with regard to judges is not a course any of us would choose at this point. If we could get the President back into the consulting mode with regard to all judges he has pursued, with regard to most judges, I think the problem would be eliminated and we would not have the difficulty and confrontation which has been required as a result of nominations so far this session.

Mr. BINGAMAN

Mr. BINGAMAN. I am very pleased to yield to my colleague.

Mr. BINGAMAN. Thank you very much, Mr. President. Let me, first of all, commend my colleague from Louisiana, Senator Breaux, for the hard work he has been doing to try to get us to a prescription drug bill for Medicare beneficiaries that will, in fact, preserve the Medicare system but will also meet this very real need that most seniors and all of us have, to be able to afford prescription drugs. Let me say a few words about the issue of judicial appointments before I then talk about a couple of other issues I want to briefly visit as well. As I approach this whole question about judicial nominations, I guess my starting point is to ask, how is the system supposed to work? How is this system of choosing and nominating and confirming of judges supposed to work when it involves Federal judges? I think it is supposed to work the way it generally has worked with this President; and that is, it is supposed to work the way it has worked with regard to these 168 judges who have been confirmed. The truth is, these judges who were confirmed, they were nominated by the President, were confirmed by the Senate These are judges who are conservative in their political philosophy, in their legal philosophy. That is sort of a given with this President. We understand that. Everyone understands that. Democrats understand it. Republicans understand it. I have no problem with that. This President was elected as our President. He has the right to choose judges who have a conservative perspective, and clearly that is what he has done, and clearly that is the way the system is supposed to work. But as I think about how the process should work, it seems to me the very first step the President should take--and the President and his assistants, his general counsel have taken with regard to most of those 168 judges, maybe all of them, at least the ones I am familiar with--the first step is to go to the Senators from the State involved and ask those Senators if these are acceptable persons to be nominated. That is exactly what has a happened in the case of judicial nominations from my home State of New Mexico. And I am very appreciative of the President and his counsel for including me in that discussion and in that decisionmaking. Essentially, what has happened is that my colleague, Senator Domenici, and the White House have identified a person--in the case of each vacancy we have had in New Mexico--they have identified a person who they thought should be nominated for that position, and they have asked me to talk to that person and give them a response as to whether that was someone I would support as well. In each case, I had been very pleased to support those nominees. In each case, I have had the chance to sit with those people, talk to them, acquaint myself with their qualifications. And, as I say, I have been very pleased to support those nominations. That is the way the system, in my opinion, is supposed to work. But once the President has determined that the Senators from a particular State--at least one of the Senators, but preferably both Senators from a particular State--will support the nomination of a judge or judicial candidate from that State, then, of course, it is much easier to get the full Senate to go along with that. Frankly, that is the way the system ought to work. I have had circumstances where individual Senators have come to me, Democratic Senators have come to me and asked: Are you sure you want us to support this nominee for a judicial position in your State? because my staff tells me there are questions--and this and that. I am pleased at that point to be able to respond, yes, that I have checked out these nominees, I have determined that they are people I support, and I urge that the full Senate support them. Now, we have two judicial nominations coming before us today that are coming up for a vote on cloture that have not come up before, but in both cases my understanding is they are being presented as nominees over the strenuous objection of both Senators from the State from which the judges come. I have difficulty understanding why I should want to support a judicial nominee from a State if the Senators from that State oppose that nominee. I try to think of how I would feel if I were opposed to a nomination from my State and the President and a majority here in the Senate were trying to confirm that nomination over my strenuous objection. I think we have some obligation to our colleagues to defer to their own understanding and their own knowledge and their own opinion on these issues, particularly as it affects their State. Now, not exclusively; we do not have to defer. But I am just saying that as a precondition for going forward and considering a judicial nominee, we ought to begin by asking: Do the Senators from the State the judge comes from support the nomination? That seems to me to be a threshold question. In the case of Carolyn Kuhl, on whom we are having a cloture vote later today, as I understand it, and in the case of Janice Rogers Brown, about whom we are also having a cloture vote later today, I am informed that the Senators from California have determined they do not support these nominations. They are urging that the Senate not go forward with these nominations. They urge that the Judiciary Committee not report these nominations. And in spite of all of that, the President says we are going to do it any way. We are doing this over the objection of the Senators from California. That, to me, is a cause for concern. We are talking about a breakdown in the traditions and a breakdown in the system that is supposed to be functioning. To me, that is a clear breakdown in the system for choosing and nominating and confirming Federal judges. So I hope we can get back to a policy with regard to all the nominations that come from the White House and this President that is consistent with the experience I have had in my home State of New Mexico; and that is, that before a nomination is sent to the Senate for confirmation, Senators will be asked to give their opinion as to the appropriateness of the nominee. One good thing about this country--it is certainly true in my State; I am sure it is true in every State in this country--we have a wealth of very capable, honest, hard-working members of the bar who would love to serve on the Federal courts. There is no shortage of good people for these positions. Accordingly, it is not difficult to find a person to serve in these key positions who has the strong support of Senators, Congressmen, and public officials in these States. The list of organizations and public officials, and both California organizations and national organizations, that oppose the two nominees I have referred to here is extensive, and I have been given that list. Twenty-two members of the California congressional delegation have indicated their opposition to our going forward with the nomination of Janice Rogers Brown. We have members of the Judiciary Committee of the California Assembly who have come out in opposition to our going forward with Carolyn Kuhl's nomination to the Ninth Circuit Court of Appeals. There is a very long list of individuals and organizations. I know neither of these nominees personally myself, but, clearly, I have to give deference and some consideration to the opinions of those who have worked with them.

Mr. BINGAMAN. I will yield back my time, Mr. President.

Mr. BINGAMAN. Mr. President, in response to the question, I certainly would say it has been my experience that this does work. In fact, when the name of someone is being considered for appointment to a Federal judgeship in my State of New Mexico, I have been getting calls. I get calls from lawyers who have worked with these individuals. I get calls from people who have tried cases against these individuals. Some of them, frankly, are favorable and some may not be as favorable. I get a great deal of feedback on these individuals who are being considered by us for nomination. And, of course, I have the ability, as a Senator from New Mexico, to call people whose opinions I respect and to say: You have spent your lifetime practicing law in the courts in New Mexico. What do you think about the qualifications and the temperament and the appropriateness of this person for this kind of a judicial position? Based on that kind of feedback, then I am in a position to advise the President, advise my colleagues, advise anyone in the Senate that, in my opinion, this person would be well qualified. I am sure that same process occurs with every Senator in every State, and it should. I think that is exactly what the Framers of the Constitution had in mind when they talked about advice and consent. I think they were talking about Senators being able to give their advice before the President made a final determination as to who would be elevated to a judicial position, and Senators being able to either give their consent or withhold their consent. It is far preferable, in my view, if that advice and consent is requested and provided at an early stage in the process, not once the nominee has been sent up here, not once the President has had a press conference at the White House with the nominee in attendance. I think it is in many ways unfair to the people being nominated to have them pushed to that stage without the necessary advice and consent having been sought from the Senators in question. I think that is the unfortunate circumstance we find ourselves in this morning, that there are individuals being pushed upon us as appropriate members to be elevated to court of appeals positions, and the nominations are being strongly opposed by the Senators from the States from which those individuals come. So I think it would be unfortunate in the extreme if the Senate were to disregard the views of the Senators from those States and say: Regardless of their views, we are going to go forward here, regardless of the feedback they have provided; regardless of the numerous groups and individuals who have come forward to state objections here, we are going to push this nomination through the Senate. I do think there is a very valuable purpose the Senate serves; and that is, to slow things down. That is what we have done here as to some of these nominees. These are nominees who, in my view, should have been better vetted with the Senators from the States involved. If those Senators had been given an opportunity to make their case to the President and to his counsel at an early stage, perhaps we could have avoided some of the votes we are going to have to cast this morning. I think that would certainly be preferable. Has my time expired, Mr. President?

Mr. BINGAMAN

Mr. BINGAMAN. Yes. We hope and expect that an agreement will be concluded and transmitted by next June 30 and do not believe it should take the full 5 years.

Mr. BINGAMAN. I agree. These grants, if funded, would continue the level of assistance which the administration and the island representatives assumed would be available to meet the education goals which they jointly established in the new compacts.

Mr. BINGAMAN. Certainly.

Mr. BINGAMAN. Mr. President, I am pleased to support passage of the Compact of Free Association Amendments Act of 2003, legislation that will extend and strengthen our Nation's special relationship with two young Pacific Island nations, the Federated States of Micronesia, FSM, and the Republic of the Marshall Islands, RMI. The special ties between these islands and the United States have a long history, from the 19th Century New England whaling industry, through the terrible years of World War II, to the period of United States administration under the United Nations Trusteeship system. From 1947 to 1986, the U.S. governed these islands on behalf of the U.N. and was responsible for promoting the political, economic, and social development of the inhabitants. In 1986, the U.S. fulfilled its obligations to the U.N. with implementation of the Compact of Free Association, approved by Public Law 99-239. The Compact formally ended U.S. administration and allowed the FSM and RMI to achieve self- government and international recognition. The Compact also allowed the U.S. to continue the special security relationship forged during the Trusteeship. Now 17 years later, the Compact continues to provide for mutual defense and for political and economic stability in a region of significant interest to the U.S. Prompt enactment of H.J. Res. 63 is needed to update and extend provisions of the Compact, particularly those economic assistance provisions which expired on September 30, 2003, but which have been temporarily extended. I would like to remind my colleagues of the scope and importance of his security relationship because it provides one of the compelling reasons to support this resolution. Our mutual security includes the obligation of the U.S. to defend these nations as if they are a part of the U.S., and it is based on a simple geographic reality--the FSM and RMI lie between the state of Hawaii, and our Territories of Guam and the Commonwealth of the Northern Mariana Islands in the western Pacific. During World War II, the islands of the FSM and RMI served as hard-fought stepping-stones in the Allied defeat of Imperial Japan. To help assure that such a struggle will never need to be repeated, the Compact grants the U.S. the right to deny access to the islands by the military forces of other nations, as well as the right to veto local actions that the U.S. determines are incompatible with its defense responsibilities. The Compact also provides that the FSM and RMI will sympathetically consider U.S. requests for military basing rights. In the past, U.S. nuclear weapons tests in the Marshall Islands played a central role in the development of our Nation's nuclear deterrent. Today, the missile test range at Kwajalein continues to play a vital role in maintaining the nation's ballistic missile capability and in developing missile defense systems. Enactment of this legislation could secure U.S. access to the missile test and space surveillance facilities at Kwajalein beyond 2016. A second major element in the special relationship established by the Compact is the mutual interest in promoting economic development. This goal has been approached by providing a combination of financial and program assistance. Significant economic development occurred from 1986 to 2003, but the remote and resource-poor island economies continue to be based on the government-sector, and they are heavily dependent on U.S. assistance. Development has also been hindered by the Compact's weak accountability mechanisms and by the island governments' poor planning and management capabilities. A third element in this special relationship is the Compact's provision granting FSM and RMI citizens the opportunity to live, work, and study in the U.S. as resident aliens. This privilege provides an outlet for the islands' population growth, but it has also resulted in significant migration to Hawaii, Guam, and the Commonwealth of the Northern Mariana Islands, CNMI. Due to relatively poor health and education conditions in the FSM and RMI, these migrants pose a disproportionately high impact on social services in the jurisdictions to which they migrate. Finally, the Compact included a full and final settlement of all claims resulting from the U.S. nuclear weapons testing program that was conducted in the RMI from 1947 to 1958 and which significantly contaminated the islands of four atolls. I commend the representatives of Micronesia, the Marshall Islands, and the United States for their work over the past 4 years to extend and strengthen the Compact. The two new Compact agreements they concluded are nested within this joint resolution and will provide the assistance needed to assure continued economic development and mutual security in partnership with the United States. The administration transmitted the legislation on June 27, it was introduced as S.J. Res. 16 on July 14, 2003, and ordered reported by the committee, with amendments, on September 17. It would provide about $4 billion in funding over the 20-year period from fiscal year 2004 to 2023 for grants, contributions to trust funds, payments to extend the lease at Kwajalein, the cost of certain domestic services and programs, and $30 million annually to be allocated among Hawaii, Guam, the Northern Mariana Islands, and American Samoa to mitigate the impact of migration from the FSM and RMI. The package would also continue program assistance to the FSM and RMI through a range of domestic programs To improve the effectiveness of U.S. assistance in the future, the amended Compacts have enhanced accountability mechanisms. For example, instead of providing financial assistance in the form of direct cash payments, funds will be disbursed through sector grants targeted to priority areas such as health and education. A new ``Fiscal Procedures Agreement,'' will establish new planning and reporting requirements, including the establishment of a joint economic management committee with each nation. These committees will have a U.S. majority membership, and the power to impose grant conditions and withhold funds. Finally, the Compacts anticipate the end of annual U.S. financial assistance after 2023 and provide fro contributions to two trust funds that will become an alternate source of funding after that year. The U.S. currently has access to military sites at Kwajalein Atoll until 2016, but this legislation provides an opportunity to extend U.S. access until 2086. The new arrangement regarding Kwajalein was negotiated with the Marshall Islands national government which has not yet reached agreement with all of the landowners involved. Accordingly, a new land use agreement will need to be concluded between the landowners and the Government of the RMI in order to give effect to the new access agreement. Until that time, this legislation requires that the increased payments be held in an interest-bearing escrow account. Two issues that were not resolved during the Energy and Natural Resources Committee's consideration of this resolution are education and disaster assistance. As pointed out earlier, U.S. assistance under the Compact is provided through a combination of financial assistance and program assistance. In the case of education, U.S. domestic programs account for roughly 40 percent of education funding, with local and U.S. financial contributions making-up the balance. These U.S. programs were first made available to the FSM and the RMI as an initiative of President Kennedy during the Trusteeship period and were continued under the Compact as negotiated and approved under President Reagan. The administration testified on this resolution in July before the Energy Committee that continuation of these programs was assumed when it renegotiated the Compact. Unfortunately, as the legislation moved forward, the House and Senate HELP Committees opposed continuation. It was clear during the committee's consideration that the Compact's goal of promoting economic self-sufficiency would fail without maintaining current levels of support for education. This could be done by either continuing these programs, as assumed by the administration, or by providing an alternative source of funding. The Energy Committee recommended continuation of critical programs and the ``cash-out'' of the remainder. Three domestic education programs that would be very hard, if not impossible, for the island governments to duplicate would continue: Pell Grants, programs under the Individuals with Disabilities Education Act, IDEA, and Job Corps. Pell grants to students attending the two community colleges in the FSM and RMI rate vital to the survival of these two institutions and there is consensus to support their continuation. IDEA serves a special population in the islands that, without the extension of the U.S. program, is unlikely to be adequately served. Finally, an exception is made for Job Corps because of the role it plays in preparing young people to enter the workforce. This is particularly true at Kwajalein Atoll where the U.S. Army vigorously supports the continuation of Job Corps because it helps maximize local employment at the U.S. Army base there. For the remaining Federal formula-grant programs administered by the Departments of Education and Labor, and for the Head Start Program, the committee recommended termination of the islands' eligibility and providing the islands with mandatory funding to replace, or ``cash- out'', the actual programs. However, the compromise agreed to with the House would provide an authorization for a discretionary, not mandatory ``cash-out'' of the programs to be terminated. The replacement funding under this proposal would continue to be provided by the appropriations subcommittee for Labor, HHS, and Education, but instead of being allocated from the appropriation for each of the national programs, there would be a new, separate appropriation of equal value to supplement the education sector grants provided by the Secretary of the Interior under section 211(a) of the two Compacts. The initial authorization levels for these two new discretionary grants are based on estimates obtained from the Congressional Research Service and the Department of the Interior's Federal Program Coordinator, $12,230,000 for the FSM, and $6,100,000 for the RMI, and the authorization includes an inflation adjustment. Once appropriated, this supplemental funding would be used in accordance with an agreement between the appropriate cabinet officer and the Secretary of the Interior, and would be disbursed and monitored in accordance with the Compact's Fiscal Procedures Agreements with the FSM and RMI, respectively. I support this compromise reluctantly because I am uneasy with discretionary funding for such a critical element of the Compacts. Nevertheless, it appears to be the best that can be worked out under the circumstances and I look forward to working with my colleagues next year to make sure that the funding is shifted smoothly from the allocation for each of these national programs to a new FSM-RMI supplemental appropriation of the same amount. I thank Senator Gregg and Senator Kennedy for their cooperation in resolving these difficult education issues, and Stephanie Monroe and Jane Oates of the HELP staff for their time and effort in working out this compromise. I particularly want to thank Senator Akaka for his hard work and commitment to this legislation, and to recognize Noe Kalipi and Melissa Hampe of his staff for their contributions. A second item that was not resolved during the Energy Committee's deliberations was disaster assistance. The administration proposed that the current eligibility of the islands to participate in the disaster assistance programs of FEMA be terminated and replaced with eligibility for assistance from the Office of Foreign Disaster Assistance, OFDA. This approach was clearly flawed because OFDA is not required to rebuild essential infrastructure following disasters. In response to this need, the administration transmitted a new proposal last week that would provide for assistance from both OFDA and FEMA. However, the details for implementing this new joint-program approach were not set forth in a subsidiary agreement, as has been done with other programs to be extended to the islands. Accordingly, a compromise has been developed that would continue FEMA assistance, as recommended by the Energy Committee, while the administration undertakes negotiations with the islands and FEMA on the new approach in which all parties seek to conclude subsidiary agreements that would clarify implementation of the new approach. To help assure that all parties will negotiate in good faith, the compromise further provides that the statutory language for the new approach, as submitted by the administration, would go into effect 5 years after the date of enactment of this joint resolution. It is my expectation that subsidiary agreements and any negotiated changes to the statutory language would be agreed to between the island governments and representatives of FEMA, OFDA, the State Department and the Interior Department long before that deadline. I thank Senators Inhofe and Jeffords for their help in resolving this matter and I look forward to working with them next year to assuring that the islands have the disaster assistance that is essential to the success of their economies, and to the success of the Compacts. I believe that we have taken two excellent agreements, as negotiated between the U.S. and the FSM, and between the U.S. and the RMI, and we have improved them so that they will serve as a solid foundation for future relations. I want to thank the chairman of the committee, Senator Domenici, for his leadership on this legislation and for his commitment to continuing the bipartisan approach that has characterized the committee's work on insular affairs. Finally, I wish to recognize the work of Al Stayman and Kellie Donnelly of the Energy Committee staff for their dedication and hard work in guiding this legislation through the process. In 1986, the United States fulfilled its obligations under the Trusteeship and established a successful partnership under the Compact of Free Association to advance the interests of the United States, the FSM, and RMI in mutual security, and to economic development. Today, I urge my colleagues to support passage of H.J. Res. 63 and to affirm our Nation's commitment to mutual security, economic development and to the continuing special relationship with the islands, and the people, of the Federated States of Micronesia and the Republic of the Marshall Islands.

Mr. BINGAMAN

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

Mr. BINGAMAN. Mr. President, could I just ask the manager a question through the Chair. I would be interested--obviously, my purpose is to get more resources for this activity. If the manager and the ranking member think they would be able to find a better offset, or find some other way to provide some resources for this or think that is a possibility, then I would be glad to defer to them. I picked this offset because I could not get any suggestion from anyone at the staff level, at least, of a better way to do this. If you think there may be a way to do this, I would be anxious to hear about it.