John Cornyn

Mr. CORNYN

Mr. CORNYN. Mr. President, I want to follow on the comments of Senator Kyl because we are working together on this important legislation, what we hope and expect will be comprehensive immigration reform. The message both of us would like to convey is that this is a complex topic. It can't be accomplished this week, especially not on supplemental appropriations designed to make sure our troops have the equipment and resources they need to fight the global war on terrorism. Let me give a little background to explain my perspective. It tracks closely with what Senator Kyl has already said. Our Nation's immigration system is badly broken. It leaves our borders unprotected, threatens our national security, and makes a mockery of the rule of law. We have failed to enforce our laws and to protect our borders for far too long through years of neglect. In a post-9/11 world, we simply cannot tolerate this situation any longer. National security demands a comprehensive solution to our immigration problem. Senator Kyl and I have determined that we would work together. We have a particular interest, being Senators from two border States along the southern border where the illegal immigration is perhaps the most rampant. We also want to come up with a plan that addresses not only our national security but deals with the economic issues that are integrally intertwined with this complex issue in a way that is compassionate and deals with the very real human consequences and causes for illegal immigration. We are undertaking a thorough review of our immigration laws as we speak. At the conclusion of our discussions, Senator Kyl and I plan to introduce a comprehensive immigration reform bill that will dramatically strengthen enforcement, bolster border security, and comprehensively reform our laws. I particularly am glad to be working with Senator Kyl. He chairs the Subcommittee on Terrorism, Technology, and Homeland Security, and I chair the Judiciary Subcommittee on Immigration, Border Security, and Citizenship. We have already had our first hearing, a joint hearing, on border security. The second one, this Thursday, will focus on interior enforcement, or maybe I should say interior nonenforcement, when it comes to our immigration laws. In the past, we have simply not devoted the funds, the resources, or the manpower to properly enforce our immigration laws and protect our borders. That must change. If we have anything to do with it, it will change. Let me put the matter as clearly and explicitly as I possibly can. No discussion of comprehensive immigration reform is possible without a clear commitment to, and a dramatic elevation in, our efforts to enforce the law. That includes enforcement both at the border and within the interior. We must have strong border protection between ports of entry and a strong employee verification system to put an end to the jobs magnet for illegal entry. Our immigration laws also present substantial difficulties to our already overburdened law enforcement and border security officials, separate and apart from inadequate funding and resources. It is my belief these difficulties simply cannot be solved by additional funding and additional resources alone, as important as they are. After all, under our current immigration laws, literally millions of people enter this country outside of legal channels to hold jobs that are offered by American businesses and are needed to ensure American economic growth. There is a serious concern that some fraction of this population may harbor evil impulses toward our country. Yet it is a practical impossibility to separate the well meaning from the ill-intentioned. Put simply, we must focus our scarce resources on the highest risks to our country and our national security. We need our law enforcement and border security officials to spend their highest energies on people who wish to do us harm rather than those who wish only to help themselves and their families through work. Our comprehensive immigration proposal will strengthen enforcement of the law, but it will also provide laws that are capable of strong enforcement. We agree with the President's stated principles. They are, however, just principles, and certainly he understands and looks to the Congress to come up with the specifics in the form of legislation. Such laws can be designed in a way to be compassionate and humane. Above all, they must be designed to protect U.S. sovereignty and to further U.S. interests. They must be reformed to better serve our national security and our national economy. They must ensure respect for the rule of law and not permit undocumented workers to gain an advantage over those who have followed the rules. In the coming months we will craft a proposal that implements all those objectives, and we welcome the coming debate as well as the input and the opportunity to work with our colleagues in the Senate. Finally, we speak today as the Senate is about to begin debate on a supplemental appropriations bill. Congress should not delay enactment of critical appropriations necessary to ensure the well-being of our men and women in uniform fighting in Iraq and elsewhere around the world. Attempting to conduct a debate about immigration reform while the supplemental appropriations bill is pending in the Senate would do just that--it would unnecessarily and inappropriately delay getting those funds to our troops who need them. Our immigration system is badly broken and fails to serve the interests of our national security and our national economy and undermines respect for the rule of law. To solve that problem, Congress must engage in a careful and deliberate discussion about the need to bolster enforcement of and to comprehensively reform our immigration laws. We should not short- circuit that discussion by enacting legislation outside of the regular order of business in the House and the Senate. I hope we will enact this supplemental appropriations bill soon. Once that process is completed, I will continue to work closely with Senator Kyl and any other Member of this body who has a good idea to contribute to enact comprehensive immigration reform that is in the best interests of our Nation. I yield the floor. Amendment No. 344

Mr. CORNYN

Mr. CORNYN. Mr. President, thank you. I appreciate the opportunity for Senator Durbin and me to speak for a few minutes. The purpose for my rising is to follow up on some remarks I made yesterday, Monday, on the floor of the Senate. The full transcript of those remarks, which has to do with judges and recent decisions of the U.S. Supreme Court is available, of course, in the Congressional Record, but it is also available on my official Web site for anybody who would care to read it. As a former judge myself for 13 years, who has a number of close personal friends who still serve on the bench today, I am outraged by recent acts of courthouse violence. I certainly hope no one will construe my remarks on Monday otherwise. Considered in context, I don't think a reasonable listener or reader could. As I said on Monday, there is no possible justification for courthouse violence. Indeed, I met with a Federal judge, a friend of mine in Texas, this past week to make sure we are doing everything we can to help protect our judges and courthouse personnel from further acts of violence. And like my colleague from Illinois, I personally know judges and their families who have been victims of violence and have grieved with those families. But I want to make one thing clear. I am not aware of any evidence whatsoever linking recent acts of courthouse violence to the various controversial rulings that have captured the Nation's attention in recent years. My point was, and is, simply this: We should all be concerned that the judiciary is losing respect that it needs to serve the interests of the American people well. We should all want judges who interpret the law fairly--not impose their own personal views on the Nation. We should all want to fix our broken judicial confirmation process. And we should all be disturbed by overheated rhetoric about the judiciary from both sides of the aisle. I regret that my remarks have been taken out of context to create a wrong impression about my position, and possibly be construed to contribute to the problem rather than to a solution. Our judiciary must not be politicized. Rhetoric about the judiciary and about judicial nominees must be toned down. Our broken judicial confirmation process must be fixed once and for all. Thank you, Mr. President. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I wanted to talk a little bit about our courts, and specifically our Federal courts, and even more specifically the United States Supreme Court. Before I start, let me just say I have the greatest respect for our judiciary, the men and women who wear black robes--whether it is on a municipal court or a county court or a district court like I served on in San Antonio, Bexar County, TX, for 6 years, or those who work on appellate courts, whether State or Federal, like I did on the Texas Supreme Court for 7 years. For 13 years of my professional life, I have worn a black robe, judging cases, first presiding over the jury trials, and coming to have a great deal of respect not just for those judges but for men and women who serve on juries and decide hard cases, cases which, perhaps, they would prefer not have to sit in judgment of, some involving even the death penalty. I don't want anyone to misunderstood what I say as being a blanket criticism of either the judiciary or the U.S. Supreme Court, in particular. From my own experience, judges, although they have important jobs to do, are no different than you and I. They are mere mortals, subject to the same flashes of mediocrity, sometimes making mistakes, and sometimes displaying flights of brilliance. These are not, as some people have suggested, high priests able to discern great truths that you and I are unable to figure out. They are generally very intelligent, with outstanding educational pedigrees, but no one has agreed that judges, particularly Federal judges, can be or should be a law unto themselves. Federal judges are appointed subject to advice and consent provisions of the Constitution for a lifetime. They do not run for election. They do not have to raise money as do other politicians. I know those who do envy them that. But the idea is they are supposed to use that independence in order to be impartial umpires of the law--it is called balls and strikes--and they should use that independence that has been given to them in order to resist politics, in order to resist those who would suggest that in order to be popular you must subscribe to a particular way of thinking or a particular social or political or ideological agenda. Given that framework the Founding Fathers agreed was so important and that I know we all agree is important today to preserve that independence so as to preserve that judicial function, it causes a lot of people, including me, great distress to see judges use the authority they have been given to make raw political or ideological decisions. No one, including those judges, including the judges on the U.S. Supreme Court, should be surprised if one of us stands up and objects. I make clear I object to some of the decisionmaking process occurring at the U.S. Supreme Court today and now. So far as the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people, it has led to increasing divisiveness and bitterness of our confirmation fights that is a very current problem this body faces. It has generated a lack of respect for judges generally. Why should people respect a judge for making a policy decision born out of an ideological conviction any more than they would respect or deny themselves the opportunity to disagree if that decision were made by an elected representative? The difference is they can throw the rascal out and we are sometimes perceived as the rascal if they do not like the decisions made, but they cannot vote against a judge, because judges are not elected. They serve for a lifetime on the Federal bench. The increasing politicization of the judicial decisionmaking process at the highest levels of our judiciary has bred a lack of respect for some of the people who wear the robe. That is a national tragedy. Finally, I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country--certainly nothing new; we seem to have run through a spate of courthouse violence recently that has been on the news. I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds and builds to the point where some people engage in violence, certainly without any justification, but that is a concern I have that I wanted to share. We all are students of history in this Senate, we all have been elected to other bodies and other offices, and we are all familiar with the founding documents, the Declaration of Independence, the Constitution itself. We are familiar with the Federalist Papers that were written in an effort to get the Constitution ratified in New York State. Alexander Hamilton, apropos of what I will talk about, authored a series of essays in the Federalist Papers that opine that the judicial branch would be what he called the ``least dangerous branch of government.'' He pointed out that the judiciary lacked the power of the executive branch, the White House, for example, in the Federal Government and the political passions of the legislature. In other words, the Congress. Its sole purpose--that is, the Federal judiciary's sole purpose--was to objectively interpret and apply the laws of the land and in such a role its job would be limited. Let me explain perhaps in greater detail why I take my colleagues' time to criticize some of the decisionmaking being made by some Federal courts in some cases. This is not a blanket condemnation. I hope I have made it clear I respect the men and women who wear the robe, but having been a judge myself I can state that part of the job of a judge is to criticize the reasoning and the justification for a particular judgment. I certainly did that daily as a state supreme court justice. And I might add that people felt free to criticize my decisions, my reasoning and justification for the judgments I would render. That is part of the give and take that goes into this. I make clear my respect generally for the Federal judiciary, including the U.S. Supreme Court. I am troubled when I read decisions such as Roper v. Simmons. This is a recent decision from March 1, 2005. Let me state what that case was about. This was a case involving Christopher Simmons. Christopher Simmons was seven months shy of his 18th birthday when he murdered Shirley Crook. This is a murder he planned to commit. Before committing the crime, this 17-year-old who was 7 months shy of his 18th birthday, encouraged his friends to join him, assuring them that they could ``get away with it,'' because they were minors. Christopher Simmons and his cohorts broke into the home of an innocent woman, bound her with duct tape and electrical wire, and then threw her off a bridge, alive and conscious, resulting in her subsequent death. Those facts led a jury in Missouri, using the law in Missouri that the people of Missouri had chosen for themselves through their elected representatives, to convict him of capital murder and to sentence him to death. Well, this 17-year-old boy, or young man I guess is what I would call him, Christopher Simmons, challenged that jury verdict and that conviction all the way through the State courts of Missouri and all the way to the U.S. Supreme Court. And the United States Supreme Court, on March 1, 2005, held that Christopher Simmons or any other person in the United States of America who is under the age of 18 who commits such a heinous and premeditated and calculated murder cannot be given the death penalty because it violates the U.S. Constitution. In so holding, the U.S. Supreme Court said: We are no longer going to leave this in the hands of jurors. We do not trust jurors. We are no longer going to leave this up to the elected representatives of the people of the respective States, even though 20 States, including Missouri, have the possibility at least of the death penalty being assessed in the most aggravated types of cases, involving the most heinous crimes, against someone who is not yet 18. This is how the Court decided to do that. First, it might be of interest to my colleagues that 15 years earlier the same U.S. Supreme Court, sitting in Washington, across the street from this Capitol where we are standing today, held just the opposite. Fifteen years ago, the U.S. Supreme Court held that under appropriate circumstances, given the proper safeguards, in the worst cases involving the most depraved and premeditated conduct, a jury could constitutionally convict someone of capital murder and sentence them to the death penalty. But 15 years later, on March 1, they said what was constitutional the day before was no longer constitutional, wiping 20 States' laws off the books and reversing this death penalty conviction for Christopher Simmons. What I want to focus on now is the reasoning that Justice Anthony Kennedy, writing for the U.S. Supreme Court, in a 5-to-4 decision, used to reach that conclusion. First, Justice Kennedy adopted a test for determining whether this death penalty conviction was constitutional. This ought to give you some indication of the problems we have with the Supreme Court as a policymaker with no fixed standards or objective standards by which to determine its decisions to make its judgments. The Court embraced a test that it had adopted earlier referring to the ``evolving standards of decency that mark the progress of a maturing society.'' Let me repeat that. The test they used was the ``evolving standards of decency that mark the progress of a maturing society.'' I would think any person of reasonable intelligence, listening to what I am saying, would say: What was that? How do you determine those ``evolving standards''? And if they are one way on one day, how do they evolve to be something different the next day? And what is a ``maturing society''? How do we determine whether society has matured? I think people would be justified in asking: Isn't that fancy window dressing for a preordained conclusion? I will let them decide. Well, it does not get much better because then the Court, in order to determine whether the facts met that standard, such as that this death penalty could not stand, or these laws in 20 States cannot stand, looked to what they called an ``emerging consensus.'' Well, any student of high school civics knows we have a Federal system, and the national Government does not dictate to the State governments all aspects of criminal law. In fact, most criminal law is decided in State courts in the first place. Nevertheless, the Supreme Court of the United States, in a 5-to-4 decision, looked for an ``emerging consensus'' and in the process wiped 20 States' laws off the books. I will not go into the details of how they found a consensus, but suffice it to say it ought to be that in a nation comprised of 50 separate sovereign State governments, where 20 States disagree with the Court on its decision that wipes those 20 States' courts laws off the books, it can hardly be called a consensus, if language is to have any meaning. Secondly, the Court said: We will also look to our own decisions, our own judgment over the propriety of this law. In other words, they are going to decide because they can, because basically their decisions are not appealable, and there is nowhere else to go if they decide this law is unconstitutional. The American people, the people of Missouri, the people who support, under limited circumstances, under appropriate checks and balances, the death penalty for people who commit heinous crimes under the age of 18 are simply out of luck; this is the end of the line. Well, finally--and this is the part I want to conclude on and speak on for a few minutes--the Court demonstrated a disconcerting tendency to rely on the laws of foreign governments and even treaties in the application and enforcement of U.S. law. This is a trend that did not start with the Roper case, but I did want to mention it in that connection. But if the U.S. Supreme Court is not going to look to the laws of the United States, including the fundamental law of the United States, which is the Constitution, but interpreting what is and is not constitutional under the U.S. Constitution by looking at what foreign governments and foreign laws have to say about that same issue, I fear that bit by bit and case by case the American people are slowly losing control over the meaning of our laws and the Constitution itself. If this trend continues, foreign governments may have a say in what our laws and our Constitution mean and what our policies in America should be. Let me digress a second to say this is as current as the daily news. As a matter of fact, I saw in the New York Times on April 2 an article concerning Justice Ginsburg, a member of that five-member majority in the Roper case. The headline is: ``Justice Ginsburg Backs Value of Foreign Law.'' Reading from this story, written by Anne Kornblut, it says: In her speech, Justice Ginsburg criticized the resolutions in Congress and the spirit in which they were written. She is referring to a resolution I have filed, and I sent out a ``dear colleague'' today expressing concerns about this issue. But she said: Although I doubt the resolutions will pass this Congress-- I don't know where she gets her information. I think there is a lot of positive sentiment in favor of what the resolution says, and I will talk about that in a minute. Although I doubt the resolutions will pass this Congress, it is disquieting that they have attracted sizable support. I am a little surprised that a sitting U.S. Supreme Court Justice would engage in a debate about a current matter, which has yet to be decided by the Senate, which is a resolution expressing concern about the use of foreign laws and treaties to interpret what the U.S. Constitution should mean. I am a little surprised by it. In a series of cases over the past few years our courts have begun to tell us that our criminal laws and our criminal policies are informed not just by our Constitution and by the policy preferences and legislative enactments of the American people through their elected representatives, but also by the rulings of foreign courts. I understand it is hard to believe, and most people listening to what I am saying are asking themselves: Could this be true? Is it possible? I know it is hard to believe, but in a series of recent cases, including the Roper case, the U.S. Supreme Court has actually rejected its own prior decisions in part because a foreign government or court has expressed disagreement with the conclusion they had reached. Until recently the U.S. Supreme Court had long held that under appropriate safeguards and procedures, the death penalty may be imposed by the States regardless of the IQ of the perpetrator. The Court had traditionally left this issue untouched as a matter for the American people and each of their States to decide, as the Court said in a case called Penry V. Lynaugh in 1989. Yet because some foreign governments had frowned upon that ruling, the U.S. has now seen fit to take that issue away from the American people entirely. In 2002, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the Commonwealth of Virginia could no longer apply its criminal justice system and its death penalty to an individual who had been duly convicted of abduction, armed robbery, and capital murder because of the testimony that the defendant was mildly mentally retarded. The reason given for this reversal of the Court's position that it had taken in 1989 to 2002? In part it was because the Court was concerned about ``the world community'' and the views of the European Union. Take another example. The U.S. Supreme Court had long held that the American people in each of the States have the discretion to decide what kinds of conduct that have long been considered immoral under longstanding legal traditions should or should not remain illegal. In Bowers v. Hardwick in 1986, the Court held that it is up to the American people to decide whether criminal laws against sodomy should be continued or abandoned. Yet once again because foreign governments have frowned upon that ruling, the U.S. Supreme Court saw fit in 2003, in Lawrence v. Texas, to hold that no State's criminal justice system or its criminal justice laws could be written in a way to reflect the moral convictions and judgments of their people. The reason given for this reversal from 1986 to 2002? This time the Court explained that it was concerned about the European Court of Human Rights and the European Convention on Human Rights. I have already mentioned the case of Roper v. Simmons. But most recently, on March 28, the U.S. Supreme Court heard oral arguments in a case that will consider whether foreign nationals duly convicted of the most heinous crimes will nevertheless be entitled to a new trial for reasons that those individuals did not even bother to bring up during their trial. As in the previous examples, the Supreme Court has already answered this issue but decided to revisit it once again. In 1998, in Breard v. Green, the Court made clear that criminal defendants, like all parties in lawsuits, may not sit on their rights and must bring them up at the time the case is going on or be prohibited from raising those issues later on, perhaps even years later. That is a basic principle of our legal system. In this case, the Court has decided to revisit whether an accused who happens to be a foreign national, subject to the Vienna Convention on Consular Relations, should be treated differently from any other litigant in our civil litigation systems and in State and Federal courts or in the Federal system reviewing State criminal justice provisions. Even this basic principle of American law may soon be reversed. Many legal experts predict that in the upcoming case of Medilline v. Dretke, the Court may overturn itself again for no other reason than that the International Court of Justice happens to disagree with our longstanding laws and legal principles. This particular case involves the State of Texas. I have filed an amicus brief, a friend of the court brief, in that decision, asking the Court to allow the people of Texas to determine their own criminal laws and policies consistent with the U.S. States Constitution and not subject to the veto of the Vienna Convention on Consular Rights or the decision of some international court. There is a serious risk, however, that the Court will ignore Texas law, will ignore U.S. law, will reverse itself, and decide in effect that the decisions of the U.S. Supreme Court can be overruled by the International Court of Justice. I won't dwell on this any longer, but suffice it to say there are other examples and other decisions where we see Supreme Court Justices citing legal opinions from foreign courts across the globe as part of the justification for their decisions interpreting the U.S. Constitution. These decisions, these legal opinions from foreign courts range from countries such as India, Jamaica, Zimbabwe, and the list goes on and on. I am concerned about this trend. Step by step, with each case where this occurs, the American people may be losing their ability to determine what their laws should be, losing control in part due to the opinions of foreign courts and foreign governments. If this happens to criminal law, it can also spread to other areas of our Government and our sovereignty. How about our economic policy, foreign policy? How about our decisions about our own security? Most Americans would be disturbed if we gave foreign governments the power to tell us what our Constitution means. Our Founding Fathers fought the Revolutionary War precisely to stop foreign governments--in this case, Great Britain--from telling us what our laws should be or what the rules should be by which we would be governed. In fact, ending foreign control over American law was one of the very reasons given for our War of Independence. The Declaration of Independence itself specifically complains that the American Revolution was justified in part because King George ``has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws.'' After a long and bloody revolution, we earned the right at last to be free of such foreign control. Rather, it was we the people of the United States who then ordained and established a Constitution of the United States and our predecessors, our forefathers, specifically included a mechanism by which we the people of the United States could change it by amendment, if necessary. Of course, every judge who serves on a Federal court swears to an oath to ``faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States, so help me God.'' As you can tell, I am concerned about this trend. I am concerned that this trend may reflect a growing distrust amongst legal elites--not only a distrust of our constitutional democracy, but a distrust of the American people and America itself. As every high school civics student knows, the job of a judge is pretty straightforward. Judges are supposed to follow the law, not rewrite it. Judges are supposed to enforce and apply political decisions that are made in Congress and that are signed into law by the President of the United States. Judges are not supposed to make those decisions or substitute their own judgments or those political judgments hashed out in the legislative process in this body and this Capitol. The job of a judge is to read and obey the words contained in our laws and in our judicial precedents--not the laws and precedents of foreign governments, which have no authority over our Nation or the American people. I am concerned that some judges who simply don't like our laws--and they don't like the decisions made by Americans through their elected representatives here about what those laws should be--are using this as another way to justify their decision to overreach. So it appears they would rather rewrite the law from the bench. What is especially disconcerting is that some judges today may be departing so far from American law, from American principles, and from American traditions that the only way they can justify their rulings is to cite the law of foreign countries, foreign governments, and foreign cultures, because there is nothing left for them to cite for support in this country. Citing foreign law in order to overrule U.S. policy offends our democracy because foreign lawmaking is obviously in no way accountable to the American people. Here again--and I started out by saying I am not condemning all Federal judges; I have great respect for the Federal judiciary--I am not condemning international law. Obviously, there is a way by which international law can apply to the United States, and that is through the treaty process, which is, of course, subject to ratification by the U.S. Congress. There is an important role for international law in our system, but it is a role that belongs to the American people through the political branches--the Congress and the President--to decide what that role should be and indeed what that law should be; it is not a role given to our courts. Article I of the U.S. Constitution gives the Congress, not the courts, the authority to enact laws punishing ``Offenses against the Law of Nations,'' and article II of the Constitution gives the President the power to ratify treaties, subject to the advice and consent and the approval of two-thirds of the Senate. Yet our courts appear to be, in some instances, overruling U.S. law by citing foreign law decisions in which the U.S. Congress had no role and citing treaties that the President and the U.S. Senate have refused to approve. To those who might say there is nothing wrong with simply trying to bring U.S. laws into consistency with other nations, I say this: This is not a good faith attempt to bring U.S. law into global harmony. I fear that, in some instances, it is simply an effort to further a political or ideological agenda, because the record suggests that this sudden interest in foreign law is more ideological than legal; it seems selective, not principled. U.S. courts are following foreign law, it seems, inconsistently--only when needed to achieve a particular outcome that a judge or justice happens to desire but that is flatly inconsistent with U.S. law and precedent. Many countries, for example, have no exclusionary rule to suppress evidence that is otherwise useful and necessary in a criminal case. Yet our courts have not abandoned the exclusionary rule in the United States, relying upon the greater wisdom and insight of foreign courts and foreign nations. I might add that very few countries provide abortion on demand. Yet our courts have not abandoned our Nation's constitutional jurisprudence on that subject. Four Justices of the Supreme Court believe that school choice programs that benefit poor urban communities are unconstitutional if parochial schools are eligible, even though other countries directly fund religious schools. Even more disconcerting than the distrust of our constitutional democracy is the distrust of America itself. I would hope that no American--and certainly no judge--would ever believe that the citizens of foreign countries are always right and that America is always wrong. Yet I worry that some judges become more and more interested in impressing their peers in foreign judiciaries and foreign governments and less interested in simply following the U.S. Constitution and American laws. At least one U.S. Supreme Court Justice mentioned publicly--and Justice Ginsburg's comments were reported on April 2 in the New York Times. A Justice has stated that following foreign rulings rather than U.S. rulings ``may create that all important good impression,'' and therefore, ``over time, we will rely increasingly . . . on international and foreign courts in examining domestic issues.'' Well, let me conclude by saying I find disturbing this attitude and these expressions of support for foreign laws and treaties that we have not ratified, particularly when they are used to interpret what the U.S. Constitution means. The brave men and women of our Armed Forces are putting their lives on the line in order to champion freedom and democracy, not just for the American people but for people all around the world. America today is the world's leading champion of freedom and democracy. I raise this issue, and I have filed a resolution for the consideration of my colleagues on this issue. I speak about it today at some length because I believe this is an important matter for the American people to know about and to have a chance to speak out on. I believe the American people--certainly the people in Texas--do not want their courts to make political decisions. They want their courts to follow and apply the law as written. I believe the American people do not want their courts to follow the precedents of foreign courts. They want their courts to follow U.S. laws and U.S. precedents. The American people do not want their laws controlled by foreign governments. They want their laws controlled by the American Government, which serves the American people. The American people do not want to see American law and American policy outsourced to foreign governments and foreign courts. So I have submitted a resolution to give this body the opportunity to state for the record that this trend in our courts is wrong and that American law should never be reversed or rejected simply because a foreign government or a foreign court may disagree with it. This resolution is nearly identical to one that has been introduced by my colleague in the House, Congressman Tom Feeney. I applaud his leadership and efforts in this area, and I hope both the House and Senate will come together and follow the footsteps of our Founding Fathers, to once again defend our rights as Americans to dictate the policies of our Government--informed but never dictated by the preferences of any foreign government or tribunal. Mr. President, I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that the Subcommittee on Strategic Forces of the Committee on Armed Services be authorized to meet during the session of the Senate on April 4, 2005 at 2 p.m., in open and closed session to receive testimony on strategic forces and nuclear weapons issues in review of the Defense Authorization Request for Fiscal Year 2006.

Mr. CORNYN

Mr. CORNYN. Mr. President, it has been nearly 4 years since the terrorist attacks of September 11, 2001. In the days, weeks, and months since that day, the American people have braced themselves for the possibility of another terrorist attack on our homeland. After all, we know all too well that al-Qaida is a stealthy, sophisticated, and patient enemy, and that its leadership is extremely motivated to launch another devastating attack on American soil and American citizens. In fact, outside the United States, al-Qaida and affiliates of al- Qaida have continued to be enormously active, responsible for numerous terrorist attacks on foreign soil in the last few years: 2001 (Dec.): Man tried to denote shoe bomb on flight from Paris to Miami. 2002 (April): Explosion at historic synagogue in Tunisia left 21 dead, including 14 German tourists. 2002 (May): Car exploded outside hotel in Karachi, Pakistan, killing 14, including 11 French citizens. 2002 (June): Bomb exploded outside American consulate in Karachi, Pakistan, killing 12. 2002 (Oct.): Boat crashed into oil tanker off Yemen coast, killing one. 2002 (Oct.): Nightclub bombings in Bali, Indonesia, killed 202, mostly Australian citizens. 2002 (Nov.): Suicide attack on a hotel in Mombasa, Kenya, killed 16. 2003 (May): Suicide bombers killed 34, including 8 Americans, at housing compounds for Westerners in Riyadh, Saudi Arabia. 2003 (May): Four bombs killed 33 people targeting Jewish, Spanish, and Belgian sites in Casablanca, Morocco. 2003 (Aug.): Suicide car-bomb killed 12, injured 150 at Marriott Hotel in Jakarta, Indonesia. 2003 (Nov.): Explosions rocked a Riyadh, Saudi Arabia housing compound, killing 17. 2003 (Nov.): Suicide car-bombers simultaneously attacked two synagogues in Istanbul, Turkey, killing 25 and injuring hundreds. 2003 (Nov.): Truck bombs detonated at London bank and British consulate in Istanbul, Turkey, killing 26. 2004 (March): Ten terrorists bombs exploded almost simultaneously during the morning rush hour in Madrid, Spain, killing 202 and injuring more than 1,400. 2004 (May): Terrorists attacked Saudi oil company offices in Khobar, Saudi Arabia, killing 22. 2004 (June): Terrorists kidnapped and executed American Paul Johnson, Jr., in Riyadh, Saudi Arabia. 2004 (Sept.): Car bomb outside the Australian embassy in Jakarta, Indonesia, killed nine. 2004 (Dec.): Terrorists enter the U.S. Consulate in Jiddah, Saudi Arabia, killing nine (including 4 attackers). It is precisely because al-Qaida is so aggressive, so motivated, and so demonstrably hostile to America, that I am so grateful that, to date, al-Qaida still has not successfully launched another terrorist attack on our own soil. There are undoubtedly many reasons for this. First and foremost, I am profoundly thankful to the brave men and women of our Armed Forces, who fight the terrorists abroad so that we do not have to face them at home. I also firmly believe that our efforts to strengthen anti-terrorism and law enforcement tools right here at home have much to do with this record of success and peace in our homeland to date. It is within this important context that a Senate Judiciary Committee hearing tomorrow morning will commence a new round of discussions about the USA PATRIOT Act. As I explained in an op-ed published in the Washington Times just this morning, I welcome that hearing, because the American people deserve an honest, responsible, and fair discussion to ensure that we are indeed fulfilling our dual responsibilities to protect national security and civil liberties alike. Unfortunately, the debate about the USA PATRIOT Act has not always met that standard. Last fall, just weeks before the Presidential election, we even witnessed false reports in newspapers across the country that a Federal court had struck down parts of the act as unconstitutional. False reports and scare tactics serve no legitimate cause and greatly disserve the American people. The war on terrorism must be fought aggressively but consistently with the protection of civil rights and civil liberties. Whenever real civil liberties problems do arise, we must learn about them right away, so that we can fix them swiftly. It is for precisely this reason that I have long been concerned about false allegations of civil rights deprivations. Every false allegation undermines every true allegation, and that hurts us all. After all, scaring people about false civil rights deprivations unnecessarily divides our Nation and makes no one safer. If anything, false claims about civil liberties actually make it harder to monitor real civil liberties issues in the future--for the same reason that eventually no one listened to the fabled little boy who kept ``crying wolf.'' After several weeks of negotiation, Congress in 2001 enacted the USA PATRIOT Act by overwhelming bipartisan margins--98-1 in the Senate and 357-66 in the House. At the time, Senators on both sides of the aisle agreed that the legislation had struck a careful and wise balance between national security and civil liberties. The record continues to be strong to this day. As Senator Dianne Feinstein at a Senate Judiciary Committee oversight hearing during the last Congress, ``I have never had a single abuse of the PATRIOT Act reported to me. My staff e-mailed the ACLU and asked them for instances of actual abuses. They e-mailed back and said they had none.'' The ACLU did allege in a press release last September that a Federal court had struck down parts of the USA PATRIOT Act--calling the decision ``a landmark victory against the Ashcroft Justice Department.'' See Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004). The litigation is currently on appeal. Newspapers across the country immediately repeated the ACLU's message. But as legal experts immediately discovered, there were two important problems with the allegation: they were attacking the wrong person, and the wrong law. In fact, the court had actually struck down a law authored by Senator Patrick Leahy during the 1980s. That statute balanced the national interest in protecting electronic communications privacy against the legitimate needs of national security, by establishing a procedure for obtaining electronic communications records in certain national security investigations through the use of so-called ``national security letters.'' The USA PATRIOT Act amended the law to make clear that such letters could be issued in terrorism investigations as well. So the statute in question was written by Leahy, not Ashcroft. And it was the Electronic Communications Privacy Act of 1986, not the USA PATRIOT Act in 2001. Indeed, the USA PATRIOT Act did not change a single word of any provision attacked by that court. What's more, in 1986, the ACLU endorsed the Electronic Communications Privacy Act. And shortly after that law was approved by the Senate on a voice vote and the House by unanimous consent, the chief legislative counsel of the ACLU called it a ``significant advancement of privacy rights of citizens in the age of new communications technology.'' None of this stopped the ACLU in 2004, however, from charging that the court's ruling was ``the first to strike down any of the vast new surveillance powers authorized by the Patriot Act.'' The ACLU has since backed down and admitted that they had attacked the wrong law. As ACLU attorney Jameel Jaffer eventually conceded, ``the provisions that we challenged and that the court objected to were in the statute before the Patriot Act was passed. We could have raised the same objections before the power was expanded.'' Nevertheless, it hurts all of us whenever an allegation about civil liberties is discredited--because it makes it that much easier to ignore legitimate civil liberties problems that may arise in the future. It's also worth noting that the primary controversy in the litigation--whether judicial review is available to scrutinize the issuance of national security letters--was not actually disputed by the government. To the contrary, the Justice Department agreed that there should be judicial review. The court simply concluded that the 1986 law was not drafted with sufficient clarity to authorize such review. Today, I introduce legislation to cure this technical defect, and to amend the Electronic Communications Privacy Act to make explicit the availability of judicial review to examine national security letters. The legislation is entitled the Electronic Communications Privacy Judicial Review and Improvement Act of 2005. I ask unanimous consent that the text of the legislation, as well as a section-by-section analysis of the legislation prepared by my office, be printed in the Record. I hope that this legislation will be enacted in the same bipartisan spirit that put both the Electronic Communications Privacy Act and the USA PATRIOT Act on the books. And I hope that future discussions about the war on terrorism, civil liberties, and the USA PATRIOT Act will be honest, responsible, and fair.

Mr. CORNYN

Mr. CORNYN. Mr. President, it has been nearly 4 years since the terrorist attacks of September 11, 2001. In the days, weeks, and months since that day, the American people have braced themselves for the possibility of another terrorist attack on our homeland. After all, we know all too well that al-Qaida is a stealthy, sophisticated, and patient enemy, and that its leadership is extremely motivated to launch another devastating attack on American soil and American citizens. In fact, outside the United States, al-Qaida and affiliates of al- Qaida have continued to be enormously active, responsible for numerous terrorist attacks on foreign soil in the last few years: 2001 (Dec.): Man tried to denote shoe bomb on flight from Paris to Miami. 2002 (April): Explosion at historic synagogue in Tunisia left 21 dead, including 14 German tourists. 2002 (May): Car exploded outside hotel in Karachi, Pakistan, killing 14, including 11 French citizens. 2002 (June): Bomb exploded outside American consulate in Karachi, Pakistan, killing 12. 2002 (Oct.): Boat crashed into oil tanker off Yemen coast, killing one. 2002 (Oct.): Nightclub bombings in Bali, Indonesia, killed 202, mostly Australian citizens. 2002 (Nov.): Suicide attack on a hotel in Mombasa, Kenya, killed 16. 2003 (May): Suicide bombers killed 34, including 8 Americans, at housing compounds for Westerners in Riyadh, Saudi Arabia. 2003 (May): Four bombs killed 33 people targeting Jewish, Spanish, and Belgian sites in Casablanca, Morocco. 2003 (Aug.): Suicide car-bomb killed 12, injured 150 at Marriott Hotel in Jakarta, Indonesia. 2003 (Nov.): Explosions rocked a Riyadh, Saudi Arabia housing compound, killing 17. 2003 (Nov.): Suicide car-bombers simultaneously attacked two synagogues in Istanbul, Turkey, killing 25 and injuring hundreds. 2003 (Nov.): Truck bombs detonated at London bank and British consulate in Istanbul, Turkey, killing 26. 2004 (March): Ten terrorists bombs exploded almost simultaneously during the morning rush hour in Madrid, Spain, killing 202 and injuring more than 1,400. 2004 (May): Terrorists attacked Saudi oil company offices in Khobar, Saudi Arabia, killing 22. 2004 (June): Terrorists kidnapped and executed American Paul Johnson, Jr., in Riyadh, Saudi Arabia. 2004 (Sept.): Car bomb outside the Australian embassy in Jakarta, Indonesia, killed nine. 2004 (Dec.): Terrorists enter the U.S. Consulate in Jiddah, Saudi Arabia, killing nine (including 4 attackers). It is precisely because al-Qaida is so aggressive, so motivated, and so demonstrably hostile to America, that I am so grateful that, to date, al-Qaida still has not successfully launched another terrorist attack on our own soil. There are undoubtedly many reasons for this. First and foremost, I am profoundly thankful to the brave men and women of our Armed Forces, who fight the terrorists abroad so that we do not have to face them at home. I also firmly believe that our efforts to strengthen anti-terrorism and law enforcement tools right here at home have much to do with this record of success and peace in our homeland to date. It is within this important context that a Senate Judiciary Committee hearing tomorrow morning will commence a new round of discussions about the USA PATRIOT Act. As I explained in an op-ed published in the Washington Times just this morning, I welcome that hearing, because the American people deserve an honest, responsible, and fair discussion to ensure that we are indeed fulfilling our dual responsibilities to protect national security and civil liberties alike. Unfortunately, the debate about the USA PATRIOT Act has not always met that standard. Last fall, just weeks before the Presidential election, we even witnessed false reports in newspapers across the country that a Federal court had struck down parts of the act as unconstitutional. False reports and scare tactics serve no legitimate cause and greatly disserve the American people. The war on terrorism must be fought aggressively but consistently with the protection of civil rights and civil liberties. Whenever real civil liberties problems do arise, we must learn about them right away, so that we can fix them swiftly. It is for precisely this reason that I have long been concerned about false allegations of civil rights deprivations. Every false allegation undermines every true allegation, and that hurts us all. After all, scaring people about false civil rights deprivations unnecessarily divides our Nation and makes no one safer. If anything, false claims about civil liberties actually make it harder to monitor real civil liberties issues in the future--for the same reason that eventually no one listened to the fabled little boy who kept ``crying wolf.'' After several weeks of negotiation, Congress in 2001 enacted the USA PATRIOT Act by overwhelming bipartisan margins--98-1 in the Senate and 357-66 in the House. At the time, Senators on both sides of the aisle agreed that the legislation had struck a careful and wise balance between national security and civil liberties. The record continues to be strong to this day. As Senator Dianne Feinstein at a Senate Judiciary Committee oversight hearing during the last Congress, ``I have never had a single abuse of the PATRIOT Act reported to me. My staff e-mailed the ACLU and asked them for instances of actual abuses. They e-mailed back and said they had none.'' The ACLU did allege in a press release last September that a Federal court had struck down parts of the USA PATRIOT Act--calling the decision ``a landmark victory against the Ashcroft Justice Department.'' See Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004). The litigation is currently on appeal. Newspapers across the country immediately repeated the ACLU's message. But as legal experts immediately discovered, there were two important problems with the allegation: they were attacking the wrong person, and the wrong law. In fact, the court had actually struck down a law authored by Senator Patrick Leahy during the 1980s. That statute balanced the national interest in protecting electronic communications privacy against the legitimate needs of national security, by establishing a procedure for obtaining electronic communications records in certain national security investigations through the use of so-called ``national security letters.'' The USA PATRIOT Act amended the law to make clear that such letters could be issued in terrorism investigations as well. So the statute in question was written by Leahy, not Ashcroft. And it was the Electronic Communications Privacy Act of 1986, not the USA PATRIOT Act in 2001. Indeed, the USA PATRIOT Act did not change a single word of any provision attacked by that court. What's more, in 1986, the ACLU endorsed the Electronic Communications Privacy Act. And shortly after that law was approved by the Senate on a voice vote and the House by unanimous consent, the chief legislative counsel of the ACLU called it a ``significant advancement of privacy rights of citizens in the age of new communications technology.'' None of this stopped the ACLU in 2004, however, from charging that the court's ruling was ``the first to strike down any of the vast new surveillance powers authorized by the Patriot Act.'' The ACLU has since backed down and admitted that they had attacked the wrong law. As ACLU attorney Jameel Jaffer eventually conceded, ``the provisions that we challenged and that the court objected to were in the statute before the Patriot Act was passed. We could have raised the same objections before the power was expanded.'' Nevertheless, it hurts all of us whenever an allegation about civil liberties is discredited--because it makes it that much easier to ignore legitimate civil liberties problems that may arise in the future. It's also worth noting that the primary controversy in the litigation--whether judicial review is available to scrutinize the issuance of national security letters--was not actually disputed by the government. To the contrary, the Justice Department agreed that there should be judicial review. The court simply concluded that the 1986 law was not drafted with sufficient clarity to authorize such review. Today, I introduce legislation to cure this technical defect, and to amend the Electronic Communications Privacy Act to make explicit the availability of judicial review to examine national security letters. The legislation is entitled the Electronic Communications Privacy Judicial Review and Improvement Act of 2005. I ask unanimous consent that the text of the legislation, as well as a section-by-section analysis of the legislation prepared by my office, be printed in the Record. I hope that this legislation will be enacted in the same bipartisan spirit that put both the Electronic Communications Privacy Act and the USA PATRIOT Act on the books. And I hope that future discussions about the war on terrorism, civil liberties, and the USA PATRIOT Act will be honest, responsible, and fair.

Mr. CORNYN

Mr. CORNYN. Mr. President, today we mourn the passing of a great man. In the long history of Roman Catholic Popes, John Paul II is among the greatest in championing human dignity. He also was a champion for the sanctity of human life and for the family and for working for the good of his Church. He is the kind of leader who only comes along once in a very great long time. As the most traveled pontiff of all time, Pope John Paul personally delivered hope, encouragement, and inspiration to more people in more places than any other person in human history. And he was especially beloved by the youth, the future of our world, with whom he had a very special relationship. Catholics and non-Catholics alike should feel fortunate to have had such a leader in our midst, a man who gave so much to humanity. Undeterred, perhaps even driven a bit harder by an assassin's bullets, this devout man embarked on an exhausting journey over a quarter of a century to spread words of freedom, compassion, and justice. His mission seems to have been nothing less than redemption of the world. Surely, but for men such as this, the world would have long fallen into irreparable chaos and decline. Elected Bishop of Rome on October 16, 1978, Pope John Paul II's faith and courage was forged and proven as a Polish priest standing up to the horrors of the Soviet Union. He took his stance at a time when dissidents were whisked away in the dark, never to be heard from again. Yet John Paul's perseverance eventually awakened the soul of a nation of secret believers who stood in candlelit solidarity to bring down an evil empire. According to Harvard theologian George Williams, a Protestant who befriended the Pope many years ago, he is an imposing man in physique, big in intellectual vision, who deeply enjoys people. In a most remarkable way, he is a man whose soul is at leisure with himself. Only two Popes have served longer and none with more sustained vigor, clarity, or cheerfulness. Even after his step faltered and his voice began to waiver, he bore his infirmities with honor and humor. Although his body was failing, his indomitable spirit continued to touch the world and teach us about the strength and promise of the human heart. This great Pope was loved by people of various religions and across ideological spectrums. Even many who disagreed with him respected his grand vision and his convictions. Having captured the world's attention and admiration by standing for our better angels for so long, Pope John Paul II will surely stand with President Ronald Reagan as one of the giants of our time. Both men understood deeply where the hope of mankind lay--in faith, in courage, in liberty. On October 11, 2001, 1 month after the devastating terrorist attacks of 9/11, John Paul offered this prayer: O God almighty and merciful, he who sows discord cannot understand You. He who loves violence cannot welcome You. Watch over us in our painful condition, tried by the brutal acts of terrorism and death. Comfort Your children and open our hearts to hope that in our time, we again may know serenity and peace. I can only add my own amen to that prayer. I yield the floor to Senator Alexander under the terms of the previous order.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that I be recognized to speak for up to 10 minutes, but then following my remarks that the Senator from Tennessee be recognized for any remarks he might have, and following the conclusion of his remarks that I might then be recognized at that time.

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

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to express concern over a trend that some legal scholars and observers say may be developing in our courts--a trend regarding the potential influence of foreign governments and foreign courts in the application and enforcement of U.S. law. If this trend is real, then I fear that, bit by bit, case by case, the American people may be slowly losing control over the meaning of our laws and of our Constitution. If this trend continues, foreign governments may even begin to dictate what our laws and our Constitution mean, and what our policies in America should be. In a series of cases over the past few years, our courts have begun to tell us that our criminal laws and criminal policies are informed, not only by our Constitution and by the policy preferences and legislative enactments of the American people through their elected representatives, but also by the rulings of foreign courts. It is hard to believe--but in a series of recent cases, the U.S. Supreme Court has actually rejected its own prior precedents, in part because of a foreign government or court has expressed its disagreement with those precedents. With your indulgence, I will offer just a few of the most recent examples. Until recently, the U.S. Supreme Court had long held that the death penalty may be imposed on individuals regardless of their I.Q. The Court had traditionally left that issue untouched, as a question for the American people, in each of their States, to decide. That was what the Court said in a case called Penry v. Lynaugh (1989). Yet because some foreign governments have frowned upon that ruling, the U.S. Supreme Court has now seen fit to take that issue away from the American people. In 2002, in a case called Atkins v. Virginia, the U.S. Supreme Court held that the Commonwealth of Virginia could no longer apply its criminal justice system and its death penalty to an individual who had been duly convicted of abduction, armed robbery, and capital murder, because of testimony that the defendant was ``mildly mentally retarded.'' The reason given for the complete reversal in the Court's position? In part because the Court was concerned about ``the world community'' and the views of the European Union. Take another example. The U.S. Supreme Court has long held that the American people, in each of their States, have the discretion to decide whether certain kinds of conduct that has been considered immoral under our longstanding legal traditions should or should not remain illegal. In Bowers v. Hardwick (1986), the Court held that it is up the American people to decide whether criminal laws against sodomy should be continued or abandoned. Yet once again, because some foreign governments have frowned upon that ruling, the U.S. Supreme Court has seen fit to take that issue away from the American people. In 2003, in a case called Lawrence v. Texas, the U.S. Supreme Court held that the State of Texas could no longer decide whether its criminal justice system may fully reflect the moral values of the people of Texas. The reason given for the complete reversal? This time, the Court explained, it was in part because it was concerned about the European Court of Human Rights and the European Convention on Human Rights. Here's yet another example, from just a few weeks ago. Until this month, the U.S. Supreme Court had always held that 16- and 17-year- olds--like John Lee Malvo, the 17-year-old who terrorized the Washington area in a sniper spree that left 10 people dead--may be subject to the death penalty, if that is indeed the will of the people. The Court said as much in a case called Stanford v. Kentucky (1989). Yet because some foreign governments have frowned upon that ruling as well, the U.S. Supreme Court, on March 1 of this year, saw fit yet again to take this issue away from the American people. In Roper v. Simmons, the U.S. Supreme Court held that the State of Missouri could no longer apply its death penalty to 16- and 17-year-olds convicted of murder, no matter how brutal and depraved the act, and no matter how unrepentant the criminal. The reason given for this most recent complete reversal? In part because of treaties the U.S. has never even ratified, like the United Nations Convention on the Rights of the Child, and because many foreign countries disagree with the people of Missouri. The trend may be continuing. Next Monday, March 28, the U.S. Supreme Court will consider the question whether foreign nationals duly convicted of the most heinous crimes are nevertheless entitled to a new trial--for reasons that those individuals did not even bother to mention at their first trial. As in the previous examples, the Supreme Court has actually already answered this question. In Breard v. Greene (1998), the Court made clear that criminal defendants, like all parties in litigation, may not sit on their rights and then bring up those rights later to stall the imposition of their criminal sentences. That basic principle of our legal system, the Court explained, is not undermined just because the accused happens to be a foreign national subject to the Vienna Convention on Consular Relations. Even this basic principle of American law may soon be reversed, however. Many legal experts predict that, in the upcoming case of Medellin v. Dretke, the Court may overturn itself yet again, for no other reason than that the International Court of Justice happens to disagree with our longstanding laws and legal principles. That case involves the State of Texas, and I have filed an amicus brief asking the Court to respect its own precedents as well as the authority of the people of Texas to determine its criminal laws and policies consistent with our U.S. Constitution. There is a serious risk, however, that the Court will ignore Texas law, ignore U.S. law, and ignore the U.S. Constitution, and decide in effect that the decisions of the U.S. Supreme Court can be overruled by the International Court of Justice. There are still other examples, other decisions, where we see Supreme Court justices citing legal opinions from foreign courts all across the globe--from India, Jamaica, Zimbabwe--the list goes on and on. I am concerned about this trend. Step by step, with every case, the American people may be losing their ability to determine what their criminal laws shall be--losing control to the control of foreign courts and foreign governments. And if this can happen with criminal law, it can also spread to other areas of our government and of sovereignty. How about economic policy? Or foreign policy? Or our decisions about security and military strategy? I think most Americans would be disturbed if we gave foreign governments the power to tell us what our Constitution means. Our Founding Fathers fought the Revolutionary War precisely to stop foreign governments from telling us what our laws say. In fact, ending foreign control over American law was one of the very reasons given for the Revolutionary War. The Declaration of Independence specifically complains that the American Revolution is justified because King George, and I quote, ``has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws.'' After a long and bloody revolution, we earned at last the right to be free of such foreign control. It was ``We the People of the United States'' who then ordained and established a Constitution of the United States, and our predecessors specifically included a mechanism by which only ``We the People of the United States'' could change it if necessary. And of course, every Federal judge and justice swears an oath to ``faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States. So help me God.'' I am concerned about this trend. I am concerned that this trend may reflect a growing distrust amongst legal elites--not only a distrust of our constitutional democracy, but a distrust of America itself. First, it reflects distrust of our constitutional democracy. As every high school civics student learns, the job of a judge is pretty straightforward. Judges are supposed to follow the law, not rewrite it. Judges are supposed to enforce and apply political decisions, not make them. The job of a judge is to read and obey the words that are contained in our laws and in our judicial precedents-- not the laws and precedents of foreign governments, which have no sovereign authority over our Nation. I fear, though, that some judges simply don't like our laws, and they don't like the political decisions that are being made by the American people, through their elected representatives, about what our laws should be. So perhaps they would rather rewrite the law from the bench. What's especially disconcerting is that some judges today may be departing so far from American law, from American principles, and from American traditions, that the only way they can justify their rulings from the bench is to cite the law of foreign countries, foreign governments, and foreign cultures--because there is nothing in this country left for them to cite for support. Moreover, citing foreign law in order to overrule U.S. policy offends democracy, because foreign lawmaking is in no way accountable to the American people. There is an important role for international law to play in our system here in the United States, to be sure. But it is a role that belongs to the American people, through the political branches of the United States--to the Congress and to the President, to decide what role international law shall play in our legal system. It is emphatically not a role that is given to our courts. Article I of the Constitution gives Congress, not the courts, the authority to enact laws punishing ``Offenses against the Law of Nations.'' And Article II of the Constitution gives the President the power to ratify treaties, subject to the advice and consent and the approval of two-thirds of the Senate. Yet our courts are overruling U.S. law by citing foreign law decisions in which the U.S. Congress has had no role, and citing treaties that the U.S. President and the U.S. Senate have refused to approve. To those who might say there is nothing wrong with simply trying to bring U.S. law into consistency with other nations, I say this: This is not a good faith effort to bring U.S. law into global harmony. I fear that this is simply an effort to further a particular ideological agenda. Because the record suggest that this sudden interest in foreign law is political, not legal; it seems selective, not principled. U.S. courts are following foreign law inconsistently--only when needed to achieve a particular outcome that a judge or justice happens to desire, but that is flatly inconsistent with U.S. law and precedent. Many countries, for example, provide no exclusionary rule to suppress evidence that is otherwise useful and necessary to convict criminal defendants--yet our courts have not abandoned our constitutional rule on that topic. Very few countries provide for abortion on demand--yet our courts have not abandoned our Nation's constitutional jurisprudence on that subject. Four justices of the Supreme Court believe that school choice programs to benefit poor urban communities are unconstitutional if parochial schools are eligible, even though many other countries directly fund religious schools. Even more disconcerting than this distrust of our constitutional democracy is the distrust of America itself. I would hope that no American would ever believe that the citizens of foreign countries are always right, and that Americans are always wrong. Yet I worry that some judges may become more and more interested in impressing foreign governments, and less and less interested in simply following American law. Indeed, at least one Supreme Court justice has stated publicly that following foreign rulings, rather than U.S. rulings, and I quote, ``may create that all important good impression,'' and therefore, and I quote, ``over time we will rely increasingly . . . on international and foreign courts in examining domestic issues.'' This attitude is especially disturbing today. The brave men and women of our Armed Forces are putting their lives on the line in order to champion freedom and democracy not just for the American people, but for people all around the world. America today is the world's leading champion of freedom and democracy. Meanwhile, the United Nations is rife with corruption, and the United Nations Human Rights Commission is chaired by Libya. I am disturbed by this trend, and I hope that the American people will have a chance to speak out. I believe that the American people do not want their courts to make political decisions; they want their courts to follow and apply the law as it is written. The American people do not want their courts to follow the precedents of foreign courts; they want their courts to follow U.S. law and the precedents of U.S. courts. The American people do not want their laws controlled by foreign governments; they want their laws controlled by the American government, which serves the American people. The American people do not want to see American law and American policy outsourced to foreign governments and foreign courts. So today, I submit a sense of the Senate resolution, to give this body the opportunity to state for the record that this trend in our courts is wrong, and that American law should never be reversed or rejected simply because a foreign government or foreign court may disagree with it. This resolution is nearly identical to one that has been introduced by my colleague in the House of Representatives, Congressman Tom Feeney. I applaud his leadership and his efforts in this area, and I hope that both the House and the Senate will come together and follow in the footsteps of our Founding Fathers, to once again defend our right as Americans to dictate the policies of our government--informed, but never dictated, by the preferences of any foreign government or tribunal. And I ask that the text of the resolution be included at the appropriate place in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, I also want to express my gratitude to the Senator from California for taking the leadership on this issue again this year. This is a common theme among those of us who represent border States, to ask the Federal Government to live up to its responsibilities. It is clear that the cost of housing aliens who are committing crimes in our country is a Federal responsibility. Yet for year upon year upon year they have thrust that burden on the States, and indeed on the counties at the local level. In my State, about 8,700 criminal aliens have been detained at a cost of roughly three times what this provision would reimburse my State. This is about one-third of the money that is a Federal responsibility that would go back to my State and the States that bear that Federal expense. I am all for the Federal Government living within its means, and I support this budget at the top-line number. I think part of budgeting is not only living within your means but it is making sure you fund your priorities. It is arguably a Federal priority to deal with the detention of illegal aliens who come into the country and commit crimes. It is a scandal that this sense of the Senate is even necessary again this year. I want to express in closing again my gratitude to Senator Feinstein for taking the leadership on this, and I certainly commend this to our colleagues. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I yield myself 5 minutes.

Mr. CORNYN. Mr. President, I want to speak briefly against this amendment. Really, what we are looking at is a tax increase unless this budget resolution passes. In other words, what they are saying is we are either going to have to find further cuts--and, of course, our friends on the other side of the aisle continue to oppose reductions in the rate of increase of entitlement spending like Medicaid or Medicare--but at the same time they say, in essence, you have to pay for these tax cuts. What they mean by that is you have to raise taxes to do so. While I hate deficits as much as the next person, this budget actually works to reduce the Federal deficit by half, over the next 5 years. We are taking a constructive approach to reduction of the deficit. But let me point out that over the last 21 months since the last tax cut, we have seen 3 million new jobs in this country. Frankly, what our opponents are proposing is something that would raise taxes on the average American worker and kill the job creation engine that put America back to work. Finally, in the short time we have, I want to speak briefly in support of an amendment that Senator Hutchison and Senator Gregg and others offered yesterday that would increase the number of Border Patrol agents to 1,000 per year for each of the next 5 years. Unlike some other amendments, this one is actually budget neutral because we find offsetting cuts to pay for it. Our security in this country ought to be and ought to remain our highest priority. The fact is, our borders are uncontrolled and porous. While we know our Border Patrol agents do their job in a highly professional way with what they have, the fact is, they are underequipped and outmanned. The fact is, our 2,000-mile southwestern border is open game for anyone who wants to try to come across, notwithstanding the good work that is being done. We have a lot more to do, but we are not there yet. We need the Border Patrol agents and the equipment to get it done. The fact is, these porous borders not only admit people who want to come to the United States and work, people for whom I have a great deal of compassion and sympathy, and we need to find a way to deal with that in a realistic way--and we will--but it also allows entry into this country of people who want to come here to kill us. Deputy Homeland Security Secretary Admiral James Loy said it is no secret that al-Qaida and other enemies of this country are going to try to take advantage of our porous borders, our lack of personnel and equipment to protect our borders, to try to infiltrate this country and commit another heinous attack on civilians as we experienced on 9/11. It is absolutely critical that the Federal Government live up to its responsibility and not foist upon State governments that happen to have large borders, such as Texas, Arizona, New Mexico, and California--it is absolutely essential that the Federal Government live up to its responsibility. Only by adequately funding Border Patrol personnel, and only by continuing to deal with the porous nature of our borders can we be assured that we are doing everything humanly possible to protect America and to keep us safe. I yield the remainder of my time to the manager.

Mr. CORNYN

Mr. CORNYN. Mr. President, on February 16, shortly before the President's Day recess in February, the Senator from Vermont and I introduced the OPEN Government Act of 2005--bipartisan legislation to promote accountability, accessibility, and openness in government, principally by strengthening and enhancing the Federal law commonly known as the Freedom of Information Act. When I served as Attorney General of Texas, it was my responsibility to enforce Texas's open government laws. I am pleased to report that Texas is known for having one of the strongest set of open government laws in our Nation. And ever since that experience, I have long believed that our federal government could use ``a little Texas sunshine.'' I am thus especially enthusiastic about the OPEN Government Act, because that legislation attempts to incorporate some of the most important principles and elements of Texas law into the federal Freedom of Information Act. Today, I am pleased to join the Senator from Vermont again, to commence another bipartisan effort to reinforce our national commitment to freedom of information and openness in government. Indeed, this is an especially appropriate time to promote this important cause, because starting this Sunday, America will observe the first-ever national Sunshine Week--a celebration of our nation's founding principles and commitment to freedom of information and openness in government. It is also long past due. It has been nearly a decade since Congress has approved major reforms to the Freedom of Information Act. Moreover, a Senate Judiciary subcommittee hearing that the Senator from Vermont and I will lead next Tuesday morning to examine our open government laws will be the first such hearing since 1992. The Faster FOIA Act of 2005 would establish an advisory Commission on Freedom of Information Act Processing Delays. The Commission would be charged with reporting to Congress and the President its recommendations for steps that should be taken to reduce delays in the administration of the Freedom of Information Act. The Commission would be comprised of 16 members. Twelve of them would be appointed by members of Congress--three by the chairman of the Senate Judiciary Committee, three by the chairman of the House Government Reform Committee, and three each by the ranking minority member of the two committees. These four members of Congress would each be required to appoint at least one member to the Commission with experience submitting FOIA requests on behalf of nonprofit research or educational organizations or news media organizations, and at least one member with experience in academic research in the fields of library science, information management, or public access to Government information. The remaining four positions on the Commission would be held by designees of the Attorney General, the Director of the Office of Management and Budget, the Archivist of the United States, and the Comptroller General. The Commission would be responsible for producing a study to identify methods to reduce delays in the processing of FOIA requests and to ensure the efficient and equitable administration of FOIA throughout the Federal Government. The Commission would also be charged with examining whether the system for charging fees and granting fee waivers under FOIA should be reformed in order to reduce delays in processing fee requests. The report would be due no later than one year after the date of enactment of this Act, and would include recommendations for legislative and administrative action to enhance FOIA performance. The Commission would expire thirty days after the submission of the report. The Faster FOIA Act is important legislation to strengthen openness in our Federal Government, and I am pleased to join with the Senator from Vermont once again in furtherance of this cause. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, on February 16, shortly before the President's Day recess in February, the Senator from Vermont and I introduced the OPEN Government Act of 2005--bipartisan legislation to promote accountability, accessibility, and openness in government, principally by strengthening and enhancing the Federal law commonly known as the Freedom of Information Act. When I served as Attorney General of Texas, it was my responsibility to enforce Texas's open government laws. I am pleased to report that Texas is known for having one of the strongest set of open government laws in our Nation. And ever since that experience, I have long believed that our federal government could use ``a little Texas sunshine.'' I am thus especially enthusiastic about the OPEN Government Act, because that legislation attempts to incorporate some of the most important principles and elements of Texas law into the federal Freedom of Information Act. Today, I am pleased to join the Senator from Vermont again, to commence another bipartisan effort to reinforce our national commitment to freedom of information and openness in government. Indeed, this is an especially appropriate time to promote this important cause, because starting this Sunday, America will observe the first-ever national Sunshine Week--a celebration of our nation's founding principles and commitment to freedom of information and openness in government. It is also long past due. It has been nearly a decade since Congress has approved major reforms to the Freedom of Information Act. Moreover, a Senate Judiciary subcommittee hearing that the Senator from Vermont and I will lead next Tuesday morning to examine our open government laws will be the first such hearing since 1992. The Faster FOIA Act of 2005 would establish an advisory Commission on Freedom of Information Act Processing Delays. The Commission would be charged with reporting to Congress and the President its recommendations for steps that should be taken to reduce delays in the administration of the Freedom of Information Act. The Commission would be comprised of 16 members. Twelve of them would be appointed by members of Congress--three by the chairman of the Senate Judiciary Committee, three by the chairman of the House Government Reform Committee, and three each by the ranking minority member of the two committees. These four members of Congress would each be required to appoint at least one member to the Commission with experience submitting FOIA requests on behalf of nonprofit research or educational organizations or news media organizations, and at least one member with experience in academic research in the fields of library science, information management, or public access to Government information. The remaining four positions on the Commission would be held by designees of the Attorney General, the Director of the Office of Management and Budget, the Archivist of the United States, and the Comptroller General. The Commission would be responsible for producing a study to identify methods to reduce delays in the processing of FOIA requests and to ensure the efficient and equitable administration of FOIA throughout the Federal Government. The Commission would also be charged with examining whether the system for charging fees and granting fee waivers under FOIA should be reformed in order to reduce delays in processing fee requests. The report would be due no later than one year after the date of enactment of this Act, and would include recommendations for legislative and administrative action to enhance FOIA performance. The Commission would expire thirty days after the submission of the report. The Faster FOIA Act is important legislation to strengthen openness in our Federal Government, and I am pleased to join with the Senator from Vermont once again in furtherance of this cause. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Thank you, Mr. President. First, let me say to my friend, the Senator from Alabama, how much I appreciate his eloquence on this bill and his very successful attempt to explain to the American people, as well as to us, what is at stake here, and to knock down some myths that are being used to try to worry people when, in fact, there is no reason for people to be worried about this legislation. Indeed, as has been reflected before, this bill will pass as it has previously, and will pass by a large bipartisan majority, and for good reason. Free Speech

Mr. CORNYN. Mr. President, I want to turn to another subject briefly. The reason I changed the subject from bankruptcy to this is provoked by an op-ed piece that I read today, and that others in this body may have read, published in the Washington Post. This article is called `` `Nuking' Free Speech,'' certainly an attention-grabbing headline. As it turns out, reading the op-ed, it is what I can only describe as a breathless statement made in writing by one of our distinguished colleagues, claiming there are efforts to reinstate majority rule when it comes to the procedures that govern our advice and consent function; that is, the procedures by which we evaluate Federal judges sent to the Senate for our consideration under our advice and consent function. Somehow, the opponents of reinstating the 200-and-more year tradition of majority rule when it comes to confirming Federal judges have been able to convince the press and others that this represents a nuclear option. Hence, the title and, hence, the first sentence in this op-ed. It says: A ``nuclear option'' is targeting the Senate. That is unfortunate because it suggests people who want to reinstate majority rule when it comes to advice and consent on the President's judicial nominees are somehow doing something radical, something dangerous, something potentially catastrophic when, in fact, that is not the case. As many know, we have seen use of a tactic which has been labeled obstructionist, it is fair to call it; that is, the use of the filibuster, to block the President's judicial nominees from getting an up-or-down vote. Indeed, it is that obstructionist procedure that has never been used in the history of this country before the last Congress. If there is a nuclear tactic being used here, I submit it is the use of that obstruction where a willful minority blocks a bipartisan majority from voting on the President's judicial nominees. That radical change from Senate tradition over the 200-plus years this body has existed is the radical change. For those who believe we ought to restore that tradition which has been taken down a very dangerous road these last 2 years with obstruction, I submit we are doing nothing more than trying to restore that Senate tradition and majority rule; and those who oppose reestablishing majority rule are the ones who are taking a radical, a dangerous position. The senior Senator from West Virginia, the author of this op-ed, claims that 20 men and women have been renominated by the President to the Federal bench where 7 of those were rejected last year. Plainly, that is false. How can it be said the Senate has rejected a nominee when we were prevented from having an up-or-down vote? Clearly, that is not true. This op-ed piece goes on to suggest that as a result of those who believe we ought to reestablish this 200-year-long tradition of majority rule when it comes to confirming judicial nominees, this op-ed goes on to say it starts with shutting off debate on judges, but it will not end there. Ultimately, he says, if Senators are denied their right to free speech on judicial nominations, an attack on extended debate on all other matters cannot be far behind. The distinguished senior Senator from West Virginia has been in the Senate a long time. Much of his service he is justly proud of. But one of the dangers of being in the Senate for a long time is that you go on record making statements which have the potential of contradicting one's current statements. Indeed, that has been the case when it comes to the senior Senator from West Virginia. For example, the very procedure which he now decries as nuking free speech, he himself championed in 1977, in 1979, in 1980, in 1987. Hardly can it be true that today trying to reinstate majority rule as he himself did on those four occasions on the dates of the years mentioned, hardly can that be nuking free speech. In fairness, he ought to concede what we are doing is nothing radical. Indeed, it is doing the same thing he himself did four times earlier. The other thing that is unfortunate about this claim made in this op- ed is that it represents the latest in a continuing series of arguments being made in the Judiciary Committee. I am thinking now of the senior Senator from New York, Mr. Schumer, who asked the Attorney General, then nominee, Alberto Gonzales, of his opinion on this ``nuclear option.'' Later we heard speeches in the Senate from the distinguished senior Senator from Massachusetts, Mr. Kennedy, and together the three Senators making speeches, raising fears of alarm about the so-called nuclear option have raised the concern, at least on my part, that if left unresponded to, if the record is left uncorrected, people might indeed begin to believe what we are suggesting by restoring this 200- year tradition of majority rule is radical when it is not. One of the dangers of being here a while is you may have been on record directly and diametrically opposed to what one is saying today. That is the case with the senior Senator from West Virginia. In 1979 on this same issue, he said: This Congress is not obliged to be bound by the dead hand of the past . . . He said: Any Member of this body knows that the next Congress would not heed that law . . . He is talking about a hypothetical law where a Congress would pass a bill that says to change this you need a two-thirds majority requirement. He said: Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would proceed to change it and would vote repeal of it by a majority vote. The senior Senator from West Virginia was correct in 1979. He is plainly incorrect today in claiming now that a 60-vote threshold is required in order to get an up-or-down vote on the President's judicial nominees. The senior Senator from Massachusetts, Mr. Kennedy, spoke on this same matter in 1975--quite a time ago--when he served in this body as a much younger man. He said on this same subject: The simple fact is the two-thirds majority required . . . under the filibuster, under the cloture rules is too difficult to obtain. Too much Senate business is too often obstructed. The will of the majority is too easily thwarted. And it is not the Senate, but the Nation's people who suffer the consequences. I agree with the senior Senator from Massachusetts, speaking in 1975. I disagree with the senior Senator speaking in 2005 on the same subject. He made the case very clearly back then. It is the same case that applies today. He said that the immediate issue is whether a simple majority of the Senate is entitled to change the Senate rules. Although the procedural issues are complex, it is clear this question should be settled by majority vote. So it is clear from the record that what Senator Kennedy, Senator Byrd, and Senator Schumer himself back in the year 2000 suggested, which was the majority should govern, should be the rule today. It should be the rule when Republicans control the White House and control the Senate. It should be the case were there a Democrat in the White House or the Democrats controlled the Senate. In other words, what we are talking about today is an important principle. And principles should not change with political convenience, which apparently is the case today. For those who took the same position back then as I and others believe should be applied today, then somehow it is suggested that this majority rule option--which is what I would prefer to call what they refer to as the nuclear option or the constitutional option--that is all we are asking for, a return to that majority rule, which they championed years ago and which they, unfortunately, are obstructing today in suggesting that somehow it is a violation of our rules and of our precedents. Unfortunately, we learn, those of us who run for office, those of us who are engaged in the rough and tumble of debate in the political arena, we know that an unresponded to allegation or attack is often an attack or an allegation believed. That is why it is so important, to set the record straight. One of the concerns Senator Byrd expressed in this op-ed, if I can sort of get down to the bottom of it, is he thinks what we are suggesting, the return to majority rule, is somehow going to stifle debate. Well, the fact is, we have had more than 2 years, going on 3 years, to debate the President's judicial nominees who have been filibustered. Surely, any reasonable person would agree that 2 or 3 years is enough debate on any nominee, when all we are asking for is simply an up-or-down vote. One other distinction I think is noteworthy. What we are talking about is not restricting debate in any way on legislative business, which, of course, is exclusively within the purview of the Congress. And if we want to pass a rule that says we are not going to have an up- or-down vote on legislation unless 60 Senators agree that we should close off debate, I think that is exclusively within our purview because it does not speak to the constitutional authority of power of any other branch of Government. But when we say--and the President is given the constitutional responsibility to nominate people to the Federal bench--that our advice and consent function cannot occur unless 60 Senators agree to close off debate so we can have an up-or-down vote, that does not merely infringe on our authority as the Senate, it infringes on the constitutional power of this President to nominate good and qualified people to the Federal bench, and then to have a debate, to have a searching inquiry into their qualifications and background, but ultimately then to have a vote, if a majority stand ready to confirm these nominees. Surely, everyone would agree that it would be wrong to say it takes a 51-percent vote to elect a Democrat to office but it somehow should take a 60-percent vote to elect a Republican to office. In a very odd sort of way, that is an analogy to what Senator Byrd, Senator Kennedy, Senator Schumer, and others on their side of the aisle have suggested. Why in the world, after more than 200 years, when the practice has been not to filibuster judges but to allow an up-or-down vote when a bipartisan majority stand ready to vote on them, should the rules change when this President is elected to the White House and when Republicans have a majority in the Senate? Well, of course, that is an unprincipled approach. It is merely a way of saying we have an argument for why we ought to be able to obstruct this President from getting the nominees he wants voted on to the Federal bench. No one is suggesting, of course, that any Senator do anything other than vote their conscience. If any Senator feels there is just cause for them to vote against a nominee, then they should do so. And I trust they will. But no Senator and no group of Senators has the authority to block a bipartisan majority of this Senate from doing its solemn duty under the Constitution. Yet that is precisely what has happened time and time and time again by an obstinate minority who last Congress filibustered 10 different judges, preventing that up-or-down vote from occurring. We have tried to work with our colleagues on the other side. I remember the Democratic leader, when asked whether his approach to leadership on this and other issues would change with the change of Congress and with his ascension to Democratic leader, said: I would rather dance than fight. What it suggested to me was he was going to be amenable to working together. I know he is a tough advocate for his side of any argument, and as leader has a responsibility to his caucus to represent the views of his caucus. But it suggested to me perhaps we would have a fresh start and a new attitude when it came to judicial filibusters. But, indeed, time and time again we have seen that is not apparently the case. And while we have not yet had to go to a vote on the floor on these judges who have been filibustered in the past, we will very soon. We know also that in addition to these circuit court nominees, we are likely to have a vacancy to the U.S. Supreme Court before very long, where, believe me, all this will have been merely a prelude to what will be a vigorous debate, which will consume virtually everything else we do, because people understand that those who are unsuccessful in getting their views enacted into law through the political process know that having judges who are confirmed who believe that a judge should be an umpire and enforce political decisions rather than make political decisions from the bench represents a threat to their agenda. But none of us have the right to use unconstitutional means, which these filibusters are, to prevent the people of this body, to prevent this President, from doing our constitutional duty. For them to suggest trying to restore 200 years of tradition, trying to restore majority rule, doing the very things they themselves have advocated and done in the past, is somehow a nuclear option is blatantly false. So, unfortunately, it is necessary, for me and others to lay the record straight. I trust that fairminded people, looking at the record, looking at the facts, will realize what we are suggesting is not a nuclear option. What we are suggesting is perhaps a constitutional option. What we are suggesting is a restoration of the majority rule option, but it is nothing radical, and it is, indeed, in keeping not only with the traditions of the Senate but also in keeping with the Constitution and laws of the United States. The Constitution is abundantly clear when supermajorities are required in order to perform a certain function. For example, to amend the Constitution, it talks explicitly about the requirement of a two- thirds majority and ratification by three-quarters of the States. It is also very clear that a supermajority is required to ratify treaties. But nowhere within that document, that foundation of our laws, the Constitution, is it suggested that more than a majority rule is required in order to provide advice and consent when it comes to the President's judicial nominees. I appreciate the opportunity and the patience of my friend, the Senator from Georgia, who I know is going to speak next, allowing me to correct the record and I hope better inform the American people and our colleagues about exactly what is going on. What is going on is that we are required to do what the people of our respective States have sent us here to do, and that is to vote. We have a tradition of lengthy debate and opportunity for any Senator to speak their mind on any subject that they care to speak on, but ultimately we are obligated by our oath and by the Constitution that governs all Americans to have an up-or-down vote, especially when a bipartisan majority stands ready to confirm, which is the case here. No Senator, no person, no collection of persons has any right to demand anything more. Unfortunately, this has gone on for too long. Good and distinguished nominees of this President have not only been denied the opportunity to have an up-or-down vote but unfortunately have been smeared as part of the process far too often. I believe what we need is a fresh start. We need a fair process, one that will apply to Democrats as well as Republicans, and one that will reflect the kind of honor that should be reflected on this institution. Unfortunately, that has not been the case. We have somehow allowed ourselves to veer off the path that the Constitution lays out for us. But we do have a chance, if necessary, if the Democratic leadership is going to persist in this unconstitutional blockade and obstruction of the President's nominees, for us to correct what has gone on for too long. Indeed, I hope that will not be necessary. Ultimately the decision is going to be theirs. We have been patient. We have explained our position. We have listened carefully to their arguments. We have listened to their objections. Frankly, we find them to be firmly planted on both sides of this issue. I hope those listening and colleagues in the Chamber will now understand a little bit better about why it is so important for us to reinstate this more than 200-year tradition, indeed this constitutional mandate that binds all of us as Americans to majority rule restoration. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, like the distinguished Senator from Utah, the former chairman of the Judiciary Committee, I agree that this is an important bill whose time has come. As he said, it is not a perfect bill, but it may be the best that we are capable of. Frankly, there is a lot more we could do to make it better. A few weeks ago, I introduced S. 314, the Fairness in Bankruptcy Litigation Act of 2005. Today, I filed amendment 30 to the comprehensive bankruptcy litigation before us, but at this time I will not call up the amendment. This amendment would provide much needed protection for consumers, creditors, workers, pensioners, shareholders, and small businesses--in short, virtually everyone who is a stakeholder in bankruptcy litigation in this country today. It would do so by reforming the rules governing venue in bankruptcy cases to combat forum shopping, otherwise known as judge shopping, by corporate debtors. The sad fact is that today judge shopping is endemic in our bankruptcy courts and has led to the abuses of the law, abuses that challenge our national aspiration to be a nation that believes in and actually practices equal justice under the law. My experience in my former capacity as attorney general of my State, particularly with the Enron bankruptcy, which has gained quite a bit of notoriety, opened my eyes to a very real abuse in our current bankruptcy system and the need to end the current practice of judge shopping. After seeing how that bankruptcy played out, I do not believe that we can only be concerned with the letter of the law. We need to be concerned as well with how that law is administered, venues where those cases are litigated, and necessarily with accountability and accessibility of working men and women, the creditors, and everyone else who is affected by bankruptcy litigation. My amendment would prevent corporate debtors from moving their bankruptcy thousands of miles away from the communities and the workers who have the most at stake, and it would prevent bankrupt corporations from effectively selecting the judge in their own cases, because picking the judge is not far off from picking the result. I know that my distinguished colleagues from Delaware do not like this particular amendment, and they have voiced their concerns to me directly and candidly, which I appreciate, but it is principally because their State is the beneficiary of the status quo with huge percentages of all bankruptcies occurring in the United States--that is, in all 50 States--ending up in Delaware and to a lesser extent in New York. I believe the record is clear that forum shopping hurts people in the overwhelming majority of the States and necessarily the overwhelming majority of our citizens, and that this amendment, if adopted, would serve the national interest. This reform is good government. It is good for the economy. It is good for consumers. To those concerned, as I have heard those concerns expressed so far in this debate that we have not done enough to combat bankruptcy abuses, particularly on the part of corporate debtors, I ask them to seriously consider this amendment. This amendment would implement a major recommendation from the October 1997 National Bankruptcy Review Commission report and has earned support by prominent bankruptcy professors and practitioners nationwide. It has also gained bipartisan support from people who have seen the problems of the current system up close, including numbers of attorneys general, 24 of whom, along with the Attorneys General of Puerto Rico and the U.S. Virgin Islands, have signed a letter in support of S. 314. I ask unanimous consent that this letter be printed in the Record, following my remarks.

Mr. CORNYN. This legislation has also been endorsed by the National Association of Credit Management and the Commercial Law League of America. This amendment also protects small businesses, and that is why it has been endorsed by the National Federation of Independent Businesses. Because it protects consumers, it is supported by the Consumer Federation. This amendment would protect and restore the integrity of our civil justice system, and that is why, as I said, it is endorsed by a bipartisan coalition of our Nation's State attorneys general. This amendment would send a message that we recognize the danger of this growing crisis which negatively affects so many consumers and workers and that we are committed to achieving fairness and truly comprehensive bankruptcy reform. Sadly, our current bankruptcy venue law has become a target for enormous abuse. It is a problem that has been well documented by scholars in the field, most recently in a comprehensive book published earlier this year by UCLA law professor Lynn M. LoPucki, as well as by Harvard law professor Elizabeth Warren, whose name has been invoked numerous times in this debate, who served as a reporter for the National Bankruptcy Review Commission, as well as Professor Jay L. Westbrook of the University of Texas Law School. I know that Professor LoPucki has been in contact with the office of virtually every Member of this body, including, it is reported to me, personal contact with 71 Senators. The professor has documented instances of forum shopping by corporate debtors that have harmed consumers and workers in virtually all of our States. I had personal experience with this abuse during my service as attorney general of the State of Texas. I argued that the Enron Federal bankruptcy litigation should occur in Houston, TX. That seemed to me to be a commonsense argument, of course, because Houston, after all, is where the majority of employees, the majority of pensioners, the majority of creditors and every other stakeholder involved in that bankruptcy was located. Of course, many of these people were victimized by this corporate scandal that occurred, unfortunately, in my State. Yet that is not where the case ended up, not in Houston, TX, but, rather, in New York. Enron was able to exploit a key loophole in bankruptcy law to maneuver their proceedings as far away from Houston, TX, as possible. They ended up in their desired forum, and that is, as I mentioned, New York. Enron used the place of incorporation of one of its small subsidiaries in order to file their bankruptcy in New York and then used that smaller claim as a basis for shifting all of its much larger bankruptcy proceedings into that same court. Let me make it clear. This company had 7,500 employees in Houston, but they filed for bankruptcy in New York where it had only 57 employees. This blatant kind of forum shopping, judge shopping, makes a mockery of all of our laws. The commonsense amendment which I have filed will combat such egregious forum shopping by requiring that corporate debtors file where their principal place of business is located or where their principal assets are located, rather than their State of incorporation, and forbidding parent companies from manipulating the venue by first filing through a subsidiary. Bankruptcy venue abuse is not just bad for our legal system, it hurts America's consumers, creditors, workers, pensioners, shareholders, and small businesses alike. Under the current law, corporate debtors effectively go to the court that they themselves pick. Debtors can forum shop and pick jurisdictions that they think are more likely to rule in their favor. If debtors, in fact, get to pick the jurisdiction, then bankruptcy judges, unfortunately, according to Professor LoPucki and others, have a disturbing incentive to compete with other bankruptcy courts for major bankruptcy litigation by tilting their rulings in favor of corporate debtors and their lawyers. As a result, creditors can also be forced to litigate far away from the real world, their real world location, where costs and inconvenience associated with travel are prohibitive--in fact, leading too many of them to simply give up rather than to expensively litigate their claims in a far-off forum. This troubling loophole serves to unfairly enable corporate debtors to evade their financial commitments; it badly disables consumers, creditors, workers, pensioners, shareholders, and small businesses from pursuing and receiving reasonable compensation from bankruptcy proceedings. There are numerous examples. Let me mention three of the more prominent ones. In 2001, in October, Boston-based Polaroid filed for bankruptcy in Delaware, listing assets of $1.9 billion. Polaroid's top executives claimed that the company was a ``melting ice cube'' and arranged a hasty sale for $465 million to a single debtor. This same court refused to hear testimony as to the true value of the company and closed the sale in only 70 days. The top executives went to work for the new buyer and received millions of dollars in stock. Meanwhile, disabled employees had their health care coverage canceled. The so-called melting ice cube became profitable the day after the sale became final. In January of 2002, K-Mart filed for bankruptcy in Chicago, a venue which had reportedly been active in soliciting large corporate debtors to file there. With a workforce of 225,000, K-Mart had more employees than any company that had ever filed for bankruptcy nationwide. The judge in that case let the failed executives take tens of millions of dollars in bonuses, perks, and loan forgiveness. Bankruptcy lawyers also profited, pocketing nearly $140 million in legal fees. But some 43,000 creditors received only about 10 cents on the dollar. The third example I would like to mention is WorldCom, known for perpetrating one of the biggest accounting frauds in the history of our country, inflating its income by $9 billion. Although based in Mississippi, WorldCom followed Enron to New York bankruptcy court where its managers received the same sort of lenient treatment that I mentioned a moment ago. No trustee was appointed. Indeed, 5 months after the case was filed, the debtors in office when the fraud occurred still constituted a majority on the board. They, in fact, chose their own successors. A top WorldCom executive used money taken from the company to build an exempt Texas homestead, and WorldCom took no action. That executive then used the homestead to buy his way out of his problems with the SEC. Meanwhile, creditors, mostly bondholders, lost $20 billion. This is not the first time Congress has addressed this important issue. The House Judiciary Subcommittee on Commercial and Administrative Law held a hearing on July 21, 2004, entitled ``Administration of Large Business Bankruptcy Reorganizations: Has Competition for Big Cases Corrupted the Bankruptcy System?'' Congressman Sherman of California has led efforts to champion bankruptcy venue reform in that body. During the 107th Congress, my colleague from Illinois, Senator Durbin, introduced S. 2798, the Employee Abuse Prevention Act of 2002, joined by the Senators from Massachusetts, the Senator from Vermont, and the Senator from West Virginia, which also would have reformed bankruptcy venue law. Congressman Delahunt of Massachusetts introduced the same legislation in the House. I believe we need to take the next logical step to respond to this important problem. The American people deserve better from our legal system when it comes to corporate bankruptcies. All bankruptcy cases deserve to be handled fairly and justly, and no corporate debtor should be allowed to escape responsibility by fleeing to a far-flung venue. It is high time we make this important and needed reform. As I have indicated earlier, I have filed this amendment, but I have not called it up but certainly reserve the right to do so during the course of these proceedings. I have listened closely to the Senator from Utah and others, the Senator from Iowa, the chief sponsor of this legislation, who say that amendments to this bill would endanger its ultimate passage. While I certainly am sympathetic to what they have to say, I still believe these amendments ought to be decided on their merits, not based on perhaps concerns that are expressed about amendments jeopardizing a bill. In fact, I would think, indeed, in every instance the chief sponsor of the bill would ask Senators to refrain from filing any amendments, believing that their bill without amendments would have a better chance of ultimate passage. But that is not how our legislative process works. I have, nevertheless, decided to refrain from calling up this amendment at this time. As I said, I reserve the right to do so later. I also reserve the right to ask for the yeas and nays and a vote on this amendment. But I have refrained from calling it up out of respect for the managers of this legislation, out of respect for Chairman Grassley, the chief sponsor, and out of respect for the American people, who deserve to have better than they have under the status quo and who deserve to see this bill pass. I hope I have made clear that judge shopping when it comes to bankruptcy litigation is a cancer that needs to be cut out, corrected, and cured. I do hope my colleagues in this body will listen, will study this particular piece of legislation, and will lend their support. I yield the floor. Exhibit 1 March 2, 2005. RE: S. 314, the Fairness in Bankruptcy Litigation Act of 2005. Hon. John Cornyn, U.S. Senate, Hart Senate Office Building, Washington, DC. Dear Senator Cornyn: We understand that the United States Senate is about to debate S. 256, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. We write to express our hope that, in doing so, the Senate will also take action on S. 314, the Fairness in Bankruptcy Litigation Act of 2005, which we support and which you introduced on February 8, 2005. After all, consistent with the title of S. 256, your legislation to reform the bankruptcy venue laws would indeed help prevent some of the worst abuses we have witnessed in bankruptcy litigation, and provide much needed protection to consumers as well as to the innumerable other parties--large and small alike--that are harmed by opportunistic forum shopping by corporate debtors: creditors, workers, pensioners, retirees, shareholders, and small businesses. As state attorneys general, we are charged with a solemn duty to enforce the law, to protect consumers, and to combat corporate wrongdoing. It is bad enough that corporate scandals have victimized countless American citizens in recent years. What's worse, many corporations have abused the bankruptcy venue laws and engaged in unseemly forum shopping in order to avoid their financial responsibilities. All too often, corporate debtors have fled their home states to pursue relief in far away jurisdictions--and in search of judges more friendly to the corporations' interests than to the interests of those the corporations have left behind. As you noted in your remarks upon introducing the legislation, literally thousands and thousands of workers, shareholders, retirees, small businesses and countless other Americans are regularly thwarted from protecting their interests and left financially stranded as a result. Your legislation has already received an impressive and broad range of support, and the undersigned--a bipartisan group of state attorneys general from across the country united in a commitment to protect consumers and curb abusive corporate judge-shopping--is pleased to add its strong support. Not only does S. 314 finally implement a major recommendation from the October 1997 National Bankruptcy Review Commission report, it is supported by innumerable bankruptcy law professors and practitioners nationwide; the National Federation of Independent Business; counsel for the Enron Employees Committee; Brady C. Williamson, who served as chairman of the National Bankruptcy Review Commission; and major national bankruptcy organizations like the National Association of Credit Management, the Commercial Law League of America, and the National Bankruptcy Conference. We commend your efforts to strengthen our bankruptcy system and protect consumers, creditors, workers, pensioners, shareholders, retirees, and small businesses against unsavory forum shopping by corporate debtors. Passage of S. 314 will end this gamesmanship, help restore credibility to our nation's bankruptcy laws, and safeguard the interests of Americans from all walks of life. We urge the United States Senate to pursue every means necessary to enact the provisions of your bill into law. Sincerely, Scott Nordstrand, Acting Attorney General of Alaska. Mike Beebe, Attorney General of Arkansas. Bill Lockyer, Attorney General of California. John Suthers, Attorney General of Colorado. Mark Bennett, Attorney General of Hawaii. Lisa Madigan, Attorney General of Illinois. Stephen Carter, Attorney General of Indiana. Charles Foti, Jr., Attorney General of Louisiana. J. Joseph Curran, Jr., Attorney General of Maryland. Tom Reilly, Attorney General of Massachusetts. Mike Cox, Attorney General of Michigan. Mike Hatch, Attorney General of Minnesota. Jay Nixon, Attorney General of Missouri. Patricia Madrid, Attorney General of New Mexico. Brian Sandoval, Attorney General of Nevada. Wayne Stenehjem, Attorney General of North Dakota. Hardy Myers, Attorney General of Oregon. Roberto Sanchez-Ramos, Secretary of Justice of Puerto Rico. Patrick Lynch, Attorney General of Rhode Island. Lawrence Long, Attorney General of South Dakota. Paul Summers, Attorney General of Tennessee. Greg Abbott, Attorney General of Texas. Mark Shurtleff, Attorney General of Utah. Alva Swan, Attorney General of the Virgin Islands . Rob McKenna, Attorney General of Washington. Darrell McGraw, Attorney General of West Virginia.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to introduce legislation to expand the scope of the Equal Access Act, which Congress enacted in 1984 to guarantee equal access for religious and other organizations to the facilities of public secondary schools that receive Federal funding. Tomorrow morning, the Supreme Court of the United States will hear oral argument in two cases involving the right of State and local governments to erect a public display of the Ten Commandments. One of those cases, Van Orden v. Perry, involves the public display at the State capitol grounds of my home State, the great State of Texas. The other case, McCreary County v. ACLU, arises out of the State of Kentucky. These two cases are reminiscent of the Supreme Court's consideration last year of the Pledge of Allegiance--which contains the words ``under god''--in the matter of Elk Grove Unified School District v., Newdow. The Court rejected the challenge to the Pledge of Allegiance in that case, but strictly on procedural grounds. So the Pledge of Allegiance, like the Ten Commandments, remains under attack and under danger of forced removal from our public square by judicial fiat. We examined these issues at a hearing of the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights I chaired on June 8, 2004. The hearing was entitled ``Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square.'' That hearing was important, because it reminded us of an even broader, more systemic problem caused by the Supreme Court's previous rulings, than just these disturbing attacks on the Pledge of Allegiance and the Ten Commandments--an unjustifiable hostility to religious expression in public squares across America. Just as there is bipartisan agreement on the constitutionality of the Pledge of Allegiance, so should there be bipartisan agreement that government should never be hostile to expressions of faith. As President Ronald Reagan stated in 1983: ``When our founding Fathers passed the First Amendment, they sought to protect churches from government interference. They never intended to construct a wall of hostility between government and the concept of religious belief itself.'' And as President Clinton noted in 1995: ``Americans feel that instead of celebrating their love for God in public, they're being forced to hide their faith behind closed doors. That's wrong. Americans should never have to hide their faith. but some Americans have been denied the right to express their religion and that has to stop. That has happened and it has to stop.'' At the hearing, we heard from citizen witnesses and legal experts alike, who recounted example after example after example of government discrimination against religious expression generally--including both discrimination against religious versus non-religious expression in government speech, as well as discrimination against purely private expressions of faith. Just consider this sample of incidents throughout the Nation--incidents of hostility to religious expression in the public square: A 12-year-old elementary school student was reprimanded by a public school in St. Louis, MO for quietly saying a prayer before lunch in the school cafeteria, according to a federal lawsuit. The case was settled after the St. Louis School Board announced a new policy protecting the religious expression rights of students. St. Louis Post-dispatch, July 11, 1996. A second grade school girl in Wisconsin was forbidden from distributing valentines during a Valentine's Day Exchange because her valentines happened to contain religious themes. After a Federal lawsuit was filed, the school district settled the suit by publishing an apology to the student in the Milwaukee Journal Sentinal and issuing a new policy protecting the religious freedoms of its students. Capital Times, Madison, August 29, 2001. A kindergartener in Dayton, OH was forbidden by her public school teacher from distributing bags of jellybeans with an attached prayer to her classmates, according to a Federal lawsuit. Associated Press, February 8, 2004. Public high school students in Massachusetts started a Bible club and tried to hand out candy canes with a Biblical passage attached. The school suspended the students for distributing the candy canes. A federal district court issued a temporary injunction against the school. Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98 D. Mass. 2003. A public school sixth grader in Boulder, CO tried to complete her book report assignment by presenting the Bible, but was forbidden from doing so by her teacher. She was also forbidden from bringing the Bible to school. Only after a lawsuit was threatened did the school eventually back down. Denver Post, December 13, 2002. According to a Federal lawsuit, a public school teacher at Lynn Lucas Middle School in Houston, TX, punished two sisters for carrying Bibles, confiscated and threw the Bibles into the trash, and threatened to call Child Protective Services, while another teacher forbade a third student from reading the Bible during free reading time and forced him to remove a Ten Commandments book cover from another book. The suit was ultimately resolved out of court. Houston Chronicle, May 24, 2000. As explained in her Senate testimony, Nashala Hearn, a 12-year-old girl in Muskogee, OK, was suspended for three days by her public middle school for wearing a hijab, a headscarf required by her Islamic faith. The school eventually backed down after intervention by the Justice Department. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights, June 8, 2004. A Texas school district refused to hire a public school teacher for the position of assistant principal, because her children attended a private Christian school, in violation of the district's policy that the children of all principals and administrators attend public school. The district's policy was upheld by the Federal district court but subsequently rejected on appeal. Barrow V. Greenville Ind. Sch. Dist., 332 F.3d 844 5th Cir. 2003. A Vietnam veteran and member of an honor guard at a New Jersey veterans' cemetery was fired for saying ``God bless you and this family'' to the family of a deceased veteran, even though the family had consented to the blessing beforehand. Winston-Salem Journal, April 26, 2003. A public library employee in Logan County, KY, was fired for refusing to remove her cross-pendant necklace while at work. A Federal district court subsequently ruled that the library violated her constitutional rights. American Libraries, October 1, 2003. According to another federal lawsuit, an employee of the Minnesota State Department of Revenue is barred from parking his car in the employee parking lot, because his car displays religious messages such as ``God is a loving and caring God.'' Other employees are allowed to display nonreligious messages on their cars. The employee is similarly barred from displaying religious messages in his office cubicle, even though other employees are allowed to display nonreligious messages in their cubicles. Star-Tribune (Minneapolis), July 2, 2004. As he explained in his Senate testimony, Barney Clark and other members of the Balch Springs Senior Center in Balch Springs, Texas, were forbidden from singing religious songs and appointing someone to bless their food at the city-owned senior center. The city eventually backed down, but only after a federal lawsuit and intervention by the Justice Department. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights, June 8, 2004. I'm grateful to the Liberty Legal Institute, which has been an active champion of religious liberty, and which followed up on their testimony at the hearing last year by filing a 51-page report with the subcommittee last October. The Institute's report documented additional cases of hostility to religion in the public square, and noted the existence of a nationwide campaign to remove religious expressions from the public square--namely, liberal organizations in Washington that actively litigate against equal access for religious organizations in public schools, against school choice programs that give needy students equal access to parochial and nonsectarian schools alike, and against voluntary, student-led religious expression. Thankfully, and despite the efforts of these organizations, we are starting to win the battle for religious liberty and against hostility to religious expression. The Court has upheld equal access for religious organizations on a number of recent occasions--albeit frequently by narrow, 5-4 majorities--including cases like Rosenberger, Good News Club, Zelman, and Mitchell. And thankfully, the Equal Access Act of 1984 has been affirmed, upheld, and enforced. But the Equal Access Act applies only to postsecondary schools. It is time that equal access be extended to elementary schools as well, and that is why I introduce this legislation today. I know that Senators will be following closely the Supreme Court's consideration of the Ten Commandments cases and the people's right to display our nation's most revered documents in public squares across America. Regardless of the outcome of those cases. I hope that Senators will also support this effort to extend equal access to all of our nation's public schools. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to introduce legislation to expand the scope of the Equal Access Act, which Congress enacted in 1984 to guarantee equal access for religious and other organizations to the facilities of public secondary schools that receive Federal funding. Tomorrow morning, the Supreme Court of the United States will hear oral argument in two cases involving the right of State and local governments to erect a public display of the Ten Commandments. One of those cases, Van Orden v. Perry, involves the public display at the State capitol grounds of my home State, the great State of Texas. The other case, McCreary County v. ACLU, arises out of the State of Kentucky. These two cases are reminiscent of the Supreme Court's consideration last year of the Pledge of Allegiance--which contains the words ``under god''--in the matter of Elk Grove Unified School District v., Newdow. The Court rejected the challenge to the Pledge of Allegiance in that case, but strictly on procedural grounds. So the Pledge of Allegiance, like the Ten Commandments, remains under attack and under danger of forced removal from our public square by judicial fiat. We examined these issues at a hearing of the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights I chaired on June 8, 2004. The hearing was entitled ``Beyond the Pledge of Allegiance: Hostility to Religious Expression in the Public Square.'' That hearing was important, because it reminded us of an even broader, more systemic problem caused by the Supreme Court's previous rulings, than just these disturbing attacks on the Pledge of Allegiance and the Ten Commandments--an unjustifiable hostility to religious expression in public squares across America. Just as there is bipartisan agreement on the constitutionality of the Pledge of Allegiance, so should there be bipartisan agreement that government should never be hostile to expressions of faith. As President Ronald Reagan stated in 1983: ``When our founding Fathers passed the First Amendment, they sought to protect churches from government interference. They never intended to construct a wall of hostility between government and the concept of religious belief itself.'' And as President Clinton noted in 1995: ``Americans feel that instead of celebrating their love for God in public, they're being forced to hide their faith behind closed doors. That's wrong. Americans should never have to hide their faith. but some Americans have been denied the right to express their religion and that has to stop. That has happened and it has to stop.'' At the hearing, we heard from citizen witnesses and legal experts alike, who recounted example after example after example of government discrimination against religious expression generally--including both discrimination against religious versus non-religious expression in government speech, as well as discrimination against purely private expressions of faith. Just consider this sample of incidents throughout the Nation--incidents of hostility to religious expression in the public square: A 12-year-old elementary school student was reprimanded by a public school in St. Louis, MO for quietly saying a prayer before lunch in the school cafeteria, according to a federal lawsuit. The case was settled after the St. Louis School Board announced a new policy protecting the religious expression rights of students. St. Louis Post-dispatch, July 11, 1996. A second grade school girl in Wisconsin was forbidden from distributing valentines during a Valentine's Day Exchange because her valentines happened to contain religious themes. After a Federal lawsuit was filed, the school district settled the suit by publishing an apology to the student in the Milwaukee Journal Sentinal and issuing a new policy protecting the religious freedoms of its students. Capital Times, Madison, August 29, 2001. A kindergartener in Dayton, OH was forbidden by her public school teacher from distributing bags of jellybeans with an attached prayer to her classmates, according to a Federal lawsuit. Associated Press, February 8, 2004. Public high school students in Massachusetts started a Bible club and tried to hand out candy canes with a Biblical passage attached. The school suspended the students for distributing the candy canes. A federal district court issued a temporary injunction against the school. Westfield High Sch. L.I.F.E. Club v. City of Westfield, 249 F. Supp. 2d 98 D. Mass. 2003. A public school sixth grader in Boulder, CO tried to complete her book report assignment by presenting the Bible, but was forbidden from doing so by her teacher. She was also forbidden from bringing the Bible to school. Only after a lawsuit was threatened did the school eventually back down. Denver Post, December 13, 2002. According to a Federal lawsuit, a public school teacher at Lynn Lucas Middle School in Houston, TX, punished two sisters for carrying Bibles, confiscated and threw the Bibles into the trash, and threatened to call Child Protective Services, while another teacher forbade a third student from reading the Bible during free reading time and forced him to remove a Ten Commandments book cover from another book. The suit was ultimately resolved out of court. Houston Chronicle, May 24, 2000. As explained in her Senate testimony, Nashala Hearn, a 12-year-old girl in Muskogee, OK, was suspended for three days by her public middle school for wearing a hijab, a headscarf required by her Islamic faith. The school eventually backed down after intervention by the Justice Department. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights, June 8, 2004. A Texas school district refused to hire a public school teacher for the position of assistant principal, because her children attended a private Christian school, in violation of the district's policy that the children of all principals and administrators attend public school. The district's policy was upheld by the Federal district court but subsequently rejected on appeal. Barrow V. Greenville Ind. Sch. Dist., 332 F.3d 844 5th Cir. 2003. A Vietnam veteran and member of an honor guard at a New Jersey veterans' cemetery was fired for saying ``God bless you and this family'' to the family of a deceased veteran, even though the family had consented to the blessing beforehand. Winston-Salem Journal, April 26, 2003. A public library employee in Logan County, KY, was fired for refusing to remove her cross-pendant necklace while at work. A Federal district court subsequently ruled that the library violated her constitutional rights. American Libraries, October 1, 2003. According to another federal lawsuit, an employee of the Minnesota State Department of Revenue is barred from parking his car in the employee parking lot, because his car displays religious messages such as ``God is a loving and caring God.'' Other employees are allowed to display nonreligious messages on their cars. The employee is similarly barred from displaying religious messages in his office cubicle, even though other employees are allowed to display nonreligious messages in their cubicles. Star-Tribune (Minneapolis), July 2, 2004. As he explained in his Senate testimony, Barney Clark and other members of the Balch Springs Senior Center in Balch Springs, Texas, were forbidden from singing religious songs and appointing someone to bless their food at the city-owned senior center. The city eventually backed down, but only after a federal lawsuit and intervention by the Justice Department. Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights, June 8, 2004. I'm grateful to the Liberty Legal Institute, which has been an active champion of religious liberty, and which followed up on their testimony at the hearing last year by filing a 51-page report with the subcommittee last October. The Institute's report documented additional cases of hostility to religion in the public square, and noted the existence of a nationwide campaign to remove religious expressions from the public square--namely, liberal organizations in Washington that actively litigate against equal access for religious organizations in public schools, against school choice programs that give needy students equal access to parochial and nonsectarian schools alike, and against voluntary, student-led religious expression. Thankfully, and despite the efforts of these organizations, we are starting to win the battle for religious liberty and against hostility to religious expression. The Court has upheld equal access for religious organizations on a number of recent occasions--albeit frequently by narrow, 5-4 majorities--including cases like Rosenberger, Good News Club, Zelman, and Mitchell. And thankfully, the Equal Access Act of 1984 has been affirmed, upheld, and enforced. But the Equal Access Act applies only to postsecondary schools. It is time that equal access be extended to elementary schools as well, and that is why I introduce this legislation today. I know that Senators will be following closely the Supreme Court's consideration of the Ten Commandments cases and the people's right to display our nation's most revered documents in public squares across America. Regardless of the outcome of those cases. I hope that Senators will also support this effort to extend equal access to all of our nation's public schools. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN. Mr. President, as the Senator from Vermont said at a recent Judiciary Committee hearing: I have always found that every administration, Republican or Democrat, would love to keep a whole lot of things from the public. They do something they are proud of, they will send out a hundred press releases. Otherwise, they will hold it back. We have the Freedom of Information Act, which is a very good thing. It keeps both Democratic and Republican administrations in line. I agree with that. Essentially, we are talking about human nature. It is only natural that elected officials and Government leaders want recognition for their successes but not their failures. But we, as a healthy democracy, need to know the good, the bad, and the ugly. The news media, of course, is the main way people get information about the Government. The media pushes Government entities and elected officials, bureaucrats, and agencies to release information that the people have the right to know, occasionally exposing waste, fraud, and abuse--and hopefully more often than that letting the American people know what a good job their public officials are doing. But we have also seen in recent years an expansion of other outlets for sharing information outside of the mainstream media to online communities, discussion groups, and blogs. I believe all these outlets can and do contribute to the health of our political democracy. Let me make this clear. This is not just a bill for the media, lest anybody be confused. This is a bill that will benefit every man, woman, and child in the United States of America who cares about the Federal Government, cares about how the Federal Government operates, and ultimately cares about the success of this great democracy. By reforming our information policies in order to guarantee true access by all citizens to Government records, we will revitalize the informed consent that keeps America free. The Open Government Act contains over a dozen substantive provisions, designed to achieve the following four objectives: First, it will strengthen the Freedom of Information Act and close loopholes. Secondly, it will help Freedom of Information Act requesters obtain timely responses to their requests. Third, it will ensure that agencies have strong incentives to comply with the law in a timely fashion. Fourth, it will provide Freedom of Information Act officials; that is, people within Government agencies, with all the tools, including the education, they need in order to ensure that our Government remains open and accessible. This legislation is not just pro-openness, pro-accountability and pro-accessibility; it is also pro-Internet. It contains important congressional findings to reiterate the presumption of openness. It includes a provision for a hotline that enables citizens to track the requests and even allows tracking of those requests via the Internet. As a whole, the Open Government Act reiterates the principle that our Government is based not on the need to know but rather on the right to know. We all recognize that America's security should never take a back seat. But nor should the claim, without justification, of national security be used as a barrier against allowing taxpayers to know how their money is being spent. There is a broad consensus across the aisle, the political spectrum, that we currently overclassify Government documents, and that many documents and much information is placed beyond the public view without any real justification. I believe we need a system of classification that strikes the right balance between the need to classify documents in the interest of our national security and our national values of open government. Our default position of the U.S. Government must be one of openness. If records can be open, they should be open. If there is a good reason to keep something closed, it is the Government that should bear the burden, not the other way around. Open government is fundamentally an American issue. It is literally necessary to preserve our way of life as a self-governing people. Ensuring the accessibility, accountability, and openness of the Federal Government is a cause worthy of preservation, and I call on my colleagues to join the Senator from Vermont and I today in taking a meaningful step toward that goal. Finally, before I yield the floor to the Senator from Vermont, let me again express my appreciation to him and his staff. They have worked very closely with my staff. This is one of those good Government initiatives that knows no party affiliation, no ideological affiliation, but is really one that is essential to the preservation of our way of life as a self-governing democracy. Exhibit 1 Openness Promotes Effectiveness in our National Government Act of 2005 Led by U.S. Senators John Cornyn and Patrick Leahy, the OPEN Government Act of 2005 is a bipartisan effort to achieve meaningful reforms to federal government information laws-- including most notably the Freedom of Information Act of 1966 (``FOIA''). If enacted, the legislation would substantially enhance and expand the accessibility, accountability, and openness of the federal government. It has been nearly a decade since Congress has approved major reforms to FOIA. Moreover, the Senate Judiciary Committee has not convened an oversight hearing to examine FOIA compliance issues since April 30, 1992. (The Senate Homeland Security and Governmental Affairs Committee, which shares jurisdiction over federal government information laws with the Judiciary Committee, has not held a FOIA oversight hearing since 1980.) This legislation is the culmination of months of extensive discussions between the offices of Senators Cornyn and Leahy and various members of the requestor community. The bill is supported by Texas Attorney General Greg Abbott and a broad coalition of organizations across the ideological spectrum, including: American Association of Law Libraries American Civil Liberties Union American Library Association American Society of Newspaper Editors Associated Press Managing Editors Association of Health Care Journalists Center for Democracy & Technology Coalition of Journalists for Open Government Committee of Concerned Journalists Education Writers Association Electronic Privacy Information Center Federation of American Scientists/Project on Government Secrecy Free Congress Foundation/Center for Privacy & Technology Policy Freedom of Information Center, University of Missouri The Freedom of Information Foundation of Texas The Heritage Foundation/Center for Media and Public Policy Information Trust National Conference of Editorial Writers National Freedom of Information Coalition National Newspaper Association National Security Archive/George Washington University Newspaper Association of America People for the American Way Project on Government Oversight Radio-Television News Directors Association The Reporters Committee for Freedom of the Press Society of Environmental Journalists The Act contains important Congressional findings to reiterate and reinforce the view that the Freedom of Information Act establishes a presumption of openness, and that our government is based not on the need to know, but upon the fundamental right to know. The Act also contains over a dozen substantive provisions, designed to achieve the following four objectives: (1) Strengthen FOIA and close loopholes (2) Help FOIA requestors obtain timely responses to their requests (3) Ensure that agencies-have strong incentives to act on FOIA requests in a timely fashion (4) Provide FOIA officials with all of the tools they need to ensure that our government remains open and accessible strengthen foia and close loopholes Ensure that FOIA applies when agency recordkeeping functions are outsourced Establish a new open government impact statement, by requiring that any future Congressional attempt to create a new FOIA exemption be expressly stated within the text of the legislation Impose annual reporting requirement on usage of the DHS disclosure exemption for critical infrastructure information Protect access to FOIA fee waivers for legitimate journalists, regardless of institutional association-- including bloggers and other Internet-based journalists Provide reliable reporting of FOIA performance, by requiring agencies to distinguish between first person requests for personal information and other kinds of requests help foia requestors obtain timely responses Establish FOIA hotline services, either by telephone or on the Internet, to enable requestors to track the status of their requests Create a new FOIA ombudsman, located at the Administrative Conference of the United States, to review agency FOIA compliance and provide alternatives to litigation Authorize reasonable recovery of attorney fees when litigation is inevitable ensure that agencies have strong incentives to act on foia requests in timely fashion Restore meaningful deadlines for agency action by ensuring that the 20-day statutory clock runs immediately upon the receipt of the request Impose real consequences on federal agencies for missing statutory deadlines Enhance authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure Strengthen reporting requirements on FOIA compliance to identify agencies plagued by excessive delay, and to identify excessive delays in fee status determinations provide foia officials with the tools they need to ensure that our government remains open and accessible Improve personnel policies for FOIA officials to enhance agency FOIA performance Examine the need for FOIA awareness training for federal employees Determine appropriate funding levels needed to ensure agency FOIA compliance Openness Promotes Effectiveness in our National Government Act of 2005 Section-by-Section Analysis Sec. 1. Short Title. The Open Government Act of 2005. Sec. 2. Findings. The findings reiterate the intent of Congress upon enacting the Freedom of Information Act (FOIA), 5 D.S.C. 552 as amended, and restate FOIA's presumption in favor of disclosure. Sec. 3. Protection of Fee Status for News Media. This section amends 5 U.S.C. 552(a)(4)(A)(ii) to make clear that independent journalists are not barred from obtaining fee waivers solely because they lack an institutional affiliation with a recognized news media entity. In determining whether to grant a fee waiver, an agency shall consider the prior publication history of the requestor. If the requestor has no prior publication history and no current affiliation with a news organization, the agency shall review the requestor's plans for disseminating the requested material and whether those plans include distributing the material to a reasonably broad audience. Sec. 4. Recovery of Attorney Fees and Litigation Costs. This section, the so-called Buckhannon fix, amends 5 U.S.C. 552(a)(4)(E) to clarify that a complainant has substantially prevailed in a FOIA lawsuit, and is eligible to recover attorney fees, if the complainant has obtained a substantial part of his requested relief through a judicial or administrative order or if the pursuit of a claim was the catalyst for the voluntary or unilateral change in position by the opposing party. The section responds to the Supreme Court's ruling in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598 (2001), which eliminated the ``catalyst theory'' of attorney fee recovery under certain Federal civil rights laws. FOIA requestors have raised concerns that the holding in Buckhannon could be extended to FOIA cases. This section preserves the ``catalyst theory'' in FOIA litigation. Sec. 5. Disciplinary Actions for Arbitrary and Capricious Rejections of Requests. FOIA currently requires that when a court finds that agency personnel have acted arbitrarily or capriciously with respect to withholding documents, the Office of Special Counsel shall determine whether disciplinary action against the involved personnel is warranted. See 5 U.S.C. 552(a)(4)(F). This section of the bill amends FOIA to require the Attorney General to notify the Office of Special Counsel of any such court finding and to report the same to Congress. It further requires the Office of Special Counsel to report annually to Congress on any actions taken by the Special Counsel to investigate cases of this type. Sec. 6. Time Limits for Agencies to Act on Requests. The section clarifies that the 20-day time limit on responding to a FOIA request commences on the date on which the request is first received by the agency. Further, the section states that if the agency fails to respond within the 20-day limit, the agency may not then assert any FOIA exemption under 5 U.S.C. 552(b), except under limited circumstances such as endangerment to national security or disclosure of personal private information protected by the Privacy Act of 1974, unless the agency can demonstrate, by clear and convincing evidence, good cause for failure to comply with the time limits. Sec. 7. Individualized Tracking Numbers for Requests and Status Information. Requires agencies to establish tracking systems by assigning a tracking number to each FOIA request: notifying a requestor of the tracking number within ten days of receiving a request; and establishing a telephone or Internet tracking system to allow requestors to easily obtain information on the status of their individual requests, including an estimated date on which the agency will complete action on the request. Sec. 8. Specific Citations in Exemptions. 5 U.S.C. 552(b)(3) states that records specifically exempted from disclosure by statute are exempt from FOIA. This section of the bill provides that Congress may not create new statutory exemptions under this provision of FOIA unless it does so explicitly. Accordingly, for any new statutory exemption to have effect, the statute must cite directly to 5 U.S.C. 552(b)(3), thereby conveying congressional intent to create a new (b)(3) exemption. Sec. 9. Reporting Requirements. This section adds to current reporting requirements by mandating disclosure of data on the 10 oldest active requests pending at each agency, including the amount of time elapsed since each request was originally filed. This section further requires agencies to calculate and report on the average response times and range of response times of FOIA requests. (Current requirements mandate reporting on the median response time.) Finally, this section requires reports on the number of fee status requests that are granted and denied and the average number of days for adjudicating fee status determinations by individual agencies. Sec. 10. Openness of Agency Records Maintained by a Private Entity. This section clarifies that agency records kept by private contractors licensed by the government to undertake recordkeeping functions remain subject to FOIA just as if those records were maintained by the relevant government agency. Sec. 11. Office of Government Services. This section establishes an Office of Government Information Services within the Administrative Conference of the U.S. Within that office will be appointed a FOIA ombudsman to review agency policies and procedures, audit agency performance, recommend policy changes, and mediate disputes between FOIA requestors and agencies. The establishment of an ombudsman will not impact the ability of requestors to litigate FOIA claims, but rather will serve to alleviate the need for litigation whenever possible. Sec. 12. Accessibility of Critical Infrastructure Information. This section requires reports on the implementation of the Critical Infrastructure Information Act of 2002, 6 U.S.C. 133. Reports shall be issued from the Comptroller General to the Congress on the number of private sector, state, and local agency submissions of CII data to the Department of Homeland Security and the number of requests for access to records. The Comptroller General will also be required to report on whether the nondisclosure of CII material has led to increased protection of critical infrastructure. Sec. 13. Report on Personnel Policies Related to FOIA. This section requires the Office of Personnel Management to examine how FOIA can be better implemented at the agency level, including an assessment of whether FOIA performance should be considered as a factor in personnel performance reviews, whether a job classification series specific to FOIA and the Privacy Act should be considered, and whether FOIA awareness training should be provided to federal employees. Exhibit 2 February 15, 2005. Hon. John Cornyn, Chairman, U.S. Senate Judiciary Subcommittee on the Constitution, Civil Rights & Property Rights, Washington

Mr. CORNYN. Mr. President, I rise today to introduce a bill, along with the Senator from Vermont who we will hear from shortly, that will help enhance the openness of the Federal Government. This bill is called the Open Government Act of 2005. It is a bipartisan effort to improve and update our public information laws--particularly the Freedom of Information Act. The purpose of the bill is to arm the American people with the information they need to make certain that ours remains a government whose legitimacy is derived from the consent of the governed. This legislation will significantly expand the accessibility, accountability, and openness of the Federal Government. Open government, of course, is one of the most basic requirements of a healthy democracy. It allows taxpayers to see where their money is going. It permits the honest exchange of information that ensures government accountability, and it upholds the ideal that government never rules without the consent of the governed. As is so often the case, Abraham Lincoln said it best: No man is good enough to govern another without that person's consent. But achieving the true consent of the governed requires something more than just holding elections every couple of years. What we need is informed consent. Informed consent is impossible without open and accessible government. It has been nearly a decade since Congress has approved major reforms to the Freedom of Information Act. The Senate Judiciary Committee has not convened an oversight hearing to examine the Freedom of Information Act compliance issue since 1992. And at that time, I believe it is clear that the growth of technology and the Internet has created a real desire among the American people to achieve direct, efficient, and open access to government information. I thank my colleague from Vermont, the ranking member of the Judiciary Committee, who has long been a champion of these issues, for his hard work on this bill. Together our offices have spent a good deal of time meeting with open government advocates. I am proud to say this bill is supported by a broad coalition across the ideological spectrum, because I believe this legislation should not be a partisan or special interest bill. Indeed, it is not. I ask unanimous consent that these endorsement letters from dozens of watchdog groups across the political spectrum be printed in the Record at the close of my remarks.