Larry Craig

Mr. CRAIG

Mr. CRAIG. Mr. President, I recognize the Senator from Wisconsin is still in the Chamber. Let me say, in all fairness, I was listening from my office to the Senator when he asked how justice delayed is justice denied when the vacancy rate is so low. He also wondered why we are spending time on judges. I think his own words answer the question. Senator Kohl declared that the judicial confirmation process should not be about politics. In a quote in the Congressional Record of 1997, Senator Kohl said: We need these judges both to prosecute and sentence violent criminals and to prevent more backlogs in the civil cases. I think he also stated it was in our system where judges got blocked and that there was nothing sinister about it. Let me read a couple more of the Senator's quotes because we have been accused of hypocrisy on this floor and I do not think any of us ought to be accused of that. Different circumstances and different times oftentimes produce less than consistent quotes. My guess is that this Senator has been a bit guilty of that on occasion, too. In the Congressional Record of May of 1997, it says that Senator Kohl urged votes on nominees who had been approved by the Judiciary Committee. Let's breathe life back into the confirmation process, let's vote on these nominees who have already been approved by the Judiciary Committee, and let's see a timetable for future hearings on pending judges. Let's fulfill our constitutional responsibilities. Justice denied demands that that be at a minimum--and so forth and so on. I could read other quotes. My guess is that if we searched the Record, I would find quotes by myself. I come to this debate in probably a slightly different way than some. I am a freshman on the Judiciary Committee. I have spent plenty of time over the last year watching the inner workings of the Senate judicial nomination process. With all due respect to our colleagues on the other side of the aisle, there is an emerging trend in the process that is very disturbing to this freshman Senator on the Judiciary Committee. I refer to an effort by a select few to legitimize probes into the nominee's personal and political ideology, in addition to the nominee's judicial philosophy. That is, they would have us ask what the nominee thinks about such items as abortion, the death penalty, affirmative action, even though the future job of the nominee has nothing to do with what he or she thinks about these issues and everything to do with how the nominee would apply and enforce constitutional, statutorial, and common law in the cases involving those issues. Now, that ought to be very clear and it ought to be a clear difference between how one approaches a judicial nominee and how we are now approaching judicial nominees. Those who have mounted this crusade have tried to divert attention from serious constitutional problems this process poses. They have held straw hearings and brought in heavyweight legal scholars to say, of course, a nominee's political ideology should be considered in the nomination process in an effort to pass off. Everybody knows that sort of attitude. But the academic gloss quickly wears off when there is no substance underneath, and they find out this is not a probative debate on judicial philosophy, this is really raw politics of the first instance. In a 2001 Senate judicial committee hearing, the leading proponent of the personal ideology probe said this: For whatever reason, possibly Senators' fear of being labeled partisan, legitimate concerns of ideological beliefs seem to be driven underground. It is not that we do not consider ideology, we just do not talk about it. Now you talk about it openly. If you do not have the right ideology, you cannot make it to a vote on the Senate floor. You may be the brightest legal scholar in the country, with an absolutely gold-plated record, but if you do not walk the fine line of political attitude, political philosophy, you do not cut it. That Senator may truly not know that political ideology is not traditionally the subject of an extensive probe. However, I would submit that the rest of us do know the reason. Law students--I have never been one--in their first year of law school know the reason. They cannot tell you that when they are called into the class, but a professor makes it very clear that it does not matter what they think about the legal issue at hand but only what the law is on the issue and how they should apply the law. That is what a freshman law student finds out. From the very beginning, it is not the politics of the issue, it is the law: What does the law say, and how do you apply the law? We are in the Chamber today not about law. We are in the Chamber today because of politics, because these judges who have been responsibly nominated by a President, brought before the Judiciary Committee, with the highest possible credentials in almost every instance, gold-plated records in the judicial process, cannot now come to the floor for a vote, not even a simple up-or-down vote. Why? Because the other side has now established a litmus test of political philosophy, and if they do not meet it, they do not cut it. That is the bottom line. Our Democratic colleagues even know the reason. Let me tell my colleagues what Senator Pat Leahy has said. I am quoting him. I would not take him out of context. Nobody should take any Senator out of context. Here is what he said: We need to get away from a rhetorical and litmus test and focus on rebuilding a constructive relationship between Congress and the courts. We need balance and moderation that respects the democratic will and the weight of precedence. We do not need our Federal courts further packed with ideological purity. We do not need nominees put on hold for years while we screen them for their Republican associations. I guess the only thing I can say about that quote is: that was then, this is now. Senator Tom Harkin said: I thought that if the President nominated them, they had a fair hearing, and they were reported out, my own decision was whether or not they were qualified, not whether they were ideologically opposed to me or to how I feel about what they believe. Again, that was then, this is now. So then Senator Harry Reid said: I do not think we should have a litmus test on members of the subcabinet, the Cabinet, or the judges. But then again, that was Harry Reid then, not Senator Reid now. Although I myself have never studied the law, I know the reason, too. I am going to try to be as honest as I always am on the floor and as direct as I can be. When the nomination of Ruth Bader Ginsburg came up for the U.S. Supreme Court in 1993, I was confronted with a nominee whose past revealed that she had a vastly different political ideology than my own. My constituents from Idaho, in fact, made it clear how different she was in what she had done from the mainstream of my State's thinking. However, Justice Ginsburg was a judge of great ability, character, intellect, and temperance. Her record was replete with this evidence, and though at one time she had been a vocal advocate of particular political issues, she had a sharp understanding of the limit, of the character of the judiciary and the role she would play as a judge, a neutral arbiter, not an advocate. Well, I voted for Ruth Bader Ginsburg, not because she had the same ideology--my guess is she was here and I am there, and I think the record probably clearly demonstrates that, but I was convinced she was a bright legal mind who would, in fact, not be an advocate but a neutral arbiter. That is not the kind of judgment nor is that the kind of test that is being applied to the nominees who are before us now. It is raw politics, folks--nothing more, nothing less. It is a fine litmus test of the attitude on the part of the Democrats, and if it does not match the litmus test, they do not get the vote. Now and then, of course, we probably ought to make a few examples here to prove that you have that kind of power, or that you can exert that kind of power, even in fact when the advice and consent clause of the Constitution, in my opinion, and I think the opinion of a lot of constitutional scholars--of which I am not one--is that we advise and we dispose, or consent, and that you do that not by suggesting to the President that he can only send up those who meet the narrowest of a litmus test but those who meet the broadest and the most easily substantiable character, quality, training, expertise, and talent. That is what we want. Our Founders also understood the reason judicial nominees should not be subjected to personal ideologies. For instance, in Federalist Paper 78, Alexander Hamilton underscored how important an independent judiciary was to the separation of powers: The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. To guard against such legislative encroachments, Hamilton emphasized the need for qualified judges; that is, individuals who possess virtue, honor, requisite integrity, competent knowledge of the law, be of fit character, and those who have the ability to conduct the job with utility and dignity. Character and competence is what Hamilton talked of and was, therefore, the foundation of the judicial selection process. Consideration of an individual's independent political will would undermine it. Yet today, we have slipped into that morass of politics. We are not holding up individuals looking at them for the character of the individual and the quality of the legal mind and how they have demonstrated the use of that talent in their lifetime and through their professional ways. Those are the issues that are debated on the floor, and that is the substance of this debate. For the first time, this freshman on the Judiciary Committee is witnessing something unique, and that uniqueness is quite simple. We are now applying politics instead of the judgment of character to the judges the President is sending forth for us to consider. May I ask how much time remains on our side?

Mr. CRAIG. I yield such time to the Senator from Wyoming as he may consume.

Mr. CRAIG. Mr. President, I thank the Senator from Wyoming for his comments as we debate this issue. How much time remains on our side?

Mr. CRAIG. I yield to the Senator from Utah 8 minutes.

Mr. CRAIG. How much time remains on this side?

Mr. CRAIG. Mr. President, let me be brief and close. I see the Senator from Washington and the Senator from Wisconsin ready to speak. As the Senator from Washington engages this afternoon, I would like to quote some of her comments so they are fresh in her mind. Senator Murray raised the issue of the action on female and minority nominees was denying justice and holding the system hostage. On September 14, 2000, she said at a press conference: Our justice system is being held hostage and American communities are paying the price. Senator Murray went on to say at a press conference on September 14: This delay is especially troubling when we look at what happens to women and minorities. It is time to dismantle the glass ceiling and let qualified jurists take their place on the bench. We are here to send a message. Confirm the judicial nominees pending before the Senate and let these qualified men and women fill the vacancies of the courtrooms across America. That is a quote from the Senator who is about to address this afternoon the issue of the filibuster of the qualified judges who are before the Senate. I hope her statements of less than 3 years ago would be fresh again in her mind as she resumes the debate this afternoon. I yield the floor.

Mr. CRAIG. Mr. President, reserving the right to object, I appreciate the concern of the Senator from Washington. The Senate is in session. The Senate is working. It is November 13. The timeline she has outlined is December 31.

Mr. CRAIG. I therefore object.

Mr. CRAIG

Mr. CRAIG. I inquire of the time. Where are we?

Mr. CRAIG. The chairman of the Judiciary Committee is on the floor. I will yield to him.

Mr. CRAIG. Mr. President, will the chairman of the Judiciary Committee yield for a question?

Mr. CRAIG. The chairman in earlier questioning by the Senator from Minnesota alluded to the fact that NBC News tonight featured as their lead story Janice Rogers Brown, Supreme Court justice from California. I am a freshman on the Judiciary Committee so I have not had the experience you have had, going through numerous years of confirmation hearings. But I must tell you I was so impressed with this woman's talent and her clarity in answering questions. What is her background? What was her beginning, if you will? I think it is the great American story, I am told.

Mr. CRAIG. Will the Senator yield for another question?

Mr. CRAIG. It was also mentioned in that questioning by the Senator from Minnesota that Justice Brown had received--I think your response was--74 or 76 percent of the vote of the State of California in a reconfirmation of her position. We have heard a great deal about judges who dissent too much. She was criticized by the Democrats for some of her speeches, that she was ``out of the mainstream,'' even though she received this phenomenal vote in California. Didn't Justice Brown write more majority opinions than any other justice in the Supreme Court of California--in the last term, I believe is what they are saying?

Mr. CRAIG. I thank the Senator for his answers to my questions.

Mr. CRAIG

Mr. CRAIG. Mr. President, I announce for the information of the Senate and the public that the Subcommittee on Public Lands and Forests of the Committee on Energy and Natural Resources will add two bills to the agenda of the hearing scheduled for November 18, 2003 at 2:30 p.m. in room SD-366 of the Dirksen Senate Office Building. The bills being added are S. 1167, which would resolve boundary conflicts in Barry and Stone Counties in the State of Missouri, and S. 1848, which would amend the Bend Pine Nursery Land Conveyance Act to direct the Secretary of Agriculture to sell the Bend Pine Nursery Administrative Site in the State of Oregon. The other bills that will be considered at the hearing are S. 1467, a bill to establish the Rio Grande Outstanding Natural Area in the State of Colorado, and for other purposes, S. 1209, a bill to provide for the acquisition of property in Washington County, UT, for implementation of a desert tortoise habitat conservation plan, and H.R. 708, a bill to require the conveyance of certain National Forest System lands in Mendocino National Forest, CA, to provide for the use of the proceeds from such conveyance for National Forest purposes, and for other purposes. Because of the limited time available for the hearing, witnesses may testify by invitation only. However, those wishing to submit written testimony for the hearing record should send two copies of their testimony to the Committee on Energy and Natural Resources, United States Senate, SD-364, Washington, DC 20510-6150 prior to the hearing date. For further information, please contact Dick Bouts or Meghan Beal (202-224-7556). committee on energy and natural resources

Mr. CRAIG

Mr. CRAIG. Mr. President, I ask unanimous consent that privilege of the floor be granted to Lisa McGrath, a law fellow who is on my staff, during consideration of this judicial nomination debate.

Mr. CRAIG

Mr. CRAIG. Mr. President, let me thank the Senator from Texas for taking out this special order this morning. I join with all Idahoans and all Americans to pause during Veterans Day to honor the service of all our American soldiers. It is a day set apart to celebrate peace and freedom through ceremonies of thanksgiving and prayer. It is a day dedicated to the men and women whose great sacrifices made it possible that we might pause to recognize them, to pray and to give thanks. Sadly, however, as battles fade, so do the memories of our soldiers, and what was once a fervent memory becomes but a passing one of only photographs and pictures of men and women who served their country. But this is beginning to change. As our Nation reaches out to free oppressed people around the world, a new generation of American soldiers is joining the honored body of U.S. veterans. Men and women who fought and continue to fight in Iraq are bringing fresh faces and new experiences to the legacy of those who have gone before. Troops stationed in Afghanistan work to maintain the standard of freedom others obtained for us in the past. These soldiers are expanding the image of American veterans as they stand for liberty and redefine the world. Like the soldiers before them, today's members of the armed services are risking everything to ensure the freedom and happiness of their fellow Americans. On a daily basis, they lay their lives on the line to face an unsure and dangerous future. Some of them pay the ultimate cost and remind us all that freedom is not free. Exactly who are the new veterans? They are just like you. They are fathers and mothers whose children anxiously await their return. They are sons and daughters whose parents proudly boast to their neighbors. They are students, graduates, neighbors, and friends. They are people in our State, our hearts, and our homes. For many people, this newest fight for liberty is bringing home the reality of war. A veteran is no longer an unfamiliar face in an old black and white photograph. The price of freedom is no longer a thing of the past--it is our present and our future. With a new generation of young soldiers fighting for our Nation, we are forcefully reminded of the sacrifices previous veterans have paid for our happiness. In the nearly 80 years since Congress first marked November 11th as a day to recognize and honor veterans, the image of the American veteran has been changing. Time has gradually brought a seasoned maturity of age to the once youthful faces of American soldiers. Sons have turned into fathers and fathers into grandfathers as each generation replaced the last. Following the terrible attacks on our homeland two years ago, President George W. Bush declared: Americans should always honor our veterans. At this moment, we especially need the example of their character. And we need a new generation to set examples of its own, examples in service and sacrifice and courage. Today we see the fulfillment of this challenge. We see a rising generation of new veterans fighting for the American people. To the veterans of our past and present, we thank you. We honor your service, commend your example, and remember your sacrifice. While some of us may never fully understand the significance of your labor, we all feel your impact on our Nation and our lives.

Mr. CRAIG

Mr. CRAIG. Mr. President, I would like to announce, for the information of the Senate and the public, that the Subcommittee on Public Lands and Forests of the Committee on Energy and Natural Resources will hold a hearing on November 18, 2003 at 2:30 p.m. in room SD 366 of the Dirksen Senate Office Building. The purpose of the hearing is to consider S. 1467, a bill to establish the Rio Grande Outstanding Natural Area in the State of Colorado, and for other purposes, S. 1209, a bill to provide for the acquisition of property in Washington County, UT, for implementation of a desert tortoise habitat conservation plan, and H.R. 708, a bill to require the conveyance of certain National Forest System lands in Mendocino National Forest, California, to provide for the use of the proceeds from such conveyance for National Forest purposes, and for other purposes. Because of the limited time available for the hearing, witnesses may testify by invitation only. However, those wishing to submit written testimony for the hearing record should send two copies of their testimony to the Committee on Energy and Natural Resources, United States Senate, SD-364, Washington, DC 20510-6150 prior to the hearing date. For further information, please contact Dick Bouts or Meghan Beal (202-224-7556). Subcommittee on Energy

Mr. CRAIG

Mr. CRAIG. I thank the Senator.

Mr. CRAIG. Ten minutes.

Mr. CRAIG. Mr. President, I come to the floor this afternoon to oppose the Daschle amendment but with some degree of reluctance. I say that because in the 106th and the 107th Congresses I have been an outspoken advocate of country-of-origin labeling. I agree with a fair amount of the argument that has already been made today, that there is a clear consumer right to know, that there ought to be an identification trail or process by which we do, in effect, identify cuts of meat for the consumer. I am a firm believer that, as a U.S. consumer, I have a right to know what I am eating and from where it comes. I think it is a little foolish to compare it with a silk tie or a piece of clothing. You do not just run cattle out of a factory. If you know the livestock process, you do not just label them at the time of birth. Maybe we will be. Maybe we will be putting a computer chip in the ear of every calf born and establish an identification trail from birth through to slaughter. I do not know. That may well be in the future of the livestock industry of this country. That might be a part of a process of national identification that the national cattle industry is talking about now as an important part of a trail. What I spent time doing the last week is reading the new regulations that are being proposed by USDA. While the Senator from North Dakota stood on the floor and said, you just cannot believe those cost estimates, everybody out there in farmland believes them. Every cow and calf producer and every hog producer suggests that $10 a head in real costs to comply is probably fairly realistic and that if you fail to comply or if you break the chain of compliance, you are up for a $10,000 fine. That is something I don't think I want to put my producers into at this moment, especially when they don't understand the regulations and I can't understand the regulations. There is a joke moving around out in cattle country today. If you go out and buy a truckload of cattle, you better take a trailer along to pull the paperwork with you because this is going to become a very complicated process. I talked to a sale ring operator about an hour ago. We don't have many livestock auctions left in our country today, but there are a few operating in Idaho. He is trying to figure out, when 75 or 100 small farm, ranch producers come with their cattle to his sale ring--and I am talking about an area where you have a lot of small herds of 100 or less, not large herds, as we think about them today out West or anywhere else in the country--how do you identify all of these cattle and put them together? Are they all going to be ear tagged? Do they have to be? Is that going to be a requirement? We don't know. More importantly, if you run those animals on public land and they are not in that nice, controlled, fenced, irrigated pasture--and almost all of my livestock run on public land during some time in the year, and I am talking about mountains and canyons and valleys and brush country--the ear tag that gets put in the ear as calves probably isn't there when they come home in the fall because they tore it off going through a brush thicket. That is the character of the industry. No, it isn't a controlled and simple industry. We have thousands of producers out there today. Most everybody thinks there is the big rancher out there with thousands of head of cows. Not true. Well over 80 percent of the livestock is produced in herds of 50 or less. That is just the reality of the industry. Large feedlot operators put all of those cattle together, bring them to their feedlots. How does that paper trail exist? That is really the issue at hand. I am a believer in country-of-origin labeling. I do believe the cost we are talking about here, as projected by USDA, has reality to it. Recordkeeping for development and operation, first year: $582 million; $458 million in the outyears to maintain and operate; direct cost, $582 million to $3.9 billion. Well, they back that off a little bit, but in reality we are still looking at direct cost to an industry that is struggling now to get back on its feet of about $1.7 billion. Is there a cry and a demand to know? I am not sure there is. But I want to know. I do want a reasonable and realistic approach to accomplishing this. Go read the new proposed regulations that are out for comment today. Try to tell me how you create and follow an ID trail through that maze, and the two or three or four times a feeder animal might change ownership from the time they are birthed on the ranch until they are a nice cut of beef on a supermarket shelf. That we are not confident of. You can darn well bet the processor and the retailer are going to try to pass that cost on, and they can at the consumer shelf. But I know the producer can't. The producer can't say to the feedlot operator or to the slaughterhouse: Well, because of this new regulation, you are going to have to pay me another $1 or $1.50 or $3 or $4, whatever it costs. That simply doesn't happen at that level of production, and it never has. To liken this to a tie or to liken this to one or two products that may be produced by one or two producers around the country and therefore very easy to label and very easy to know where from whence it comes, when you are talking about thousands of producers, large and small, aggregate numbers being put together for purposes of feeding and finishing--and what about commingling on the slaughterhouse floor? How do you manage that kind of situation? By the way, I don't think the Senator from Wyoming or the Senator from South Dakota mentioned, if you are selling a hamburger at McDonald's, you don't have to worry about it because you don't qualify. These regulations don't address you. Fifty percent of the industry's meat today is sold through fast foods, and they don't have to play the game. If you are a poultry raiser, do you have to play the game? No; you are exempt. Why are we looking at this in a rather sporadic pattern? If we are going to develop uniformity, if we are truly going to search for the right to know and a label that deals with country of origin, should not all meat products be labeled in a way that the consumer knows from whence they come? I think that is the right and the appropriate thing to do. We ought not handicap the producer. My livestock farmers and ranchers are split, to my knowledge, right down the middle. My Idaho cattle association opposes the regulation. I have the farm bureau who supports the regulation. I have the farmers union who I think continues to support it. I have our calf folks who strongly support it. Yet what I feel I am doing, if I vote to advance this rule into a fixed regulation, is putting some of those small producers out of business. I don't want to do that. There ought to be a simple way to do it, and yet what we have seen is a very complicated process. With that process, with those costs, I do believe it is reasonable for the U.S. Department of Agriculture to argue there may not be a benefit to it in relation to the cost. The national livestock industry is working at this moment to voluntarily put a national identification program together. We ought to be able to track our livestock. We should be able to know. When it comes to mad cow disease, you darn bet we ought to be able to track it and to assure that we keep our livestock herds safe and clean, and we have to date. We are not Johnny-come-latelies to this. We have had strict protocol for a decade or more to make sure we are not a Japan and that we are not a Canada, nor are we a Great Britain. And we are not because our livestock herds are clean, well managed, and USDA has done its homework. They deserve credit for it. You don't need to add a new paper trail to it just to assure there is safety. But I am still going to say we ought to try. I don't know that this is the way to do it. I don't know that you shove this out over the industry and force it down on them from the top down. There is a voluntary effort today to try to get this in place. If this were a pilot program or if we weren't going to implement it for a year but make sure we vetted it appropriately and established a pilot program in different livestock areas of the country--the western public land grazing industry is a good deal different from that in the South or that in the Midwest where herds are controlled and fenced and somewhat confined in the ability to shape herds and keep them, yet these rules and regulations are not reflective of those differences, and they are differences of real importance. I don't know how we get there. At least I do believe that what we are proposing--and I should not say ``we,'' USDA, and they have already backed off some of their numbers and come with different ones--is maybe not the way to go. As someone who voted for country-of-origin labeling, I did it with S. 544 in the 106th and S. 617. In 1998, we did it again. Senator Burns of Montana and I looked at the grading system to try to find a way to get where we all want to get. Now we are saying: OK, we have a freight train on the track. She is building up speed. It is just a regulatory process. We are only into the comment period. Let that train roll down the track. Let's start implementing it. By the way, if you get caught up in it and you get fined $10,000 because you couldn't comply, you didn't comply, it was impossible to comply, and you broke the paper trail or the chain of identification, so be it. I can't do that to my farmers and ranchers. I won't do that if it is my vote that does it. I am still going to insist we ought to try to comply in different ways to maintain a chain of understanding, a chain of information and knowledge and identification as to a point of origin where that meat came from. But remember, half of the meat you will consume after this becomes law will not be regulated by this law. So is there a blanket protection? No. Is there a consumer right to know? Well, 50 percent. I yield the floor.

Mr. CRAIG. Mr. President, reserving the right to object, am I to assume by that addition to the unanimous consent request that we are now looking at an hour and 15 minutes of additional debate or just 15 of your 30 minutes locked in for Senator Harkin?

Mr. CRAIG. All right. Am I also to assume we would move to other amendments and we would see a series of stacked votes on this amendment and others?

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