John Cornyn

Mr. CORNYN

Mr. CORNYN. Madam President, I add my voice of support to the President's decision to nominate Judge John G. Roberts to the U.S. Supreme Court. The process of selecting the next Associate Justice should reflect the best of the American judiciary and not the worst of American politics. From the President, the American people deserve a Supreme Court nominee who reveres the law. From the Senate, the American people deserve a confirmation process that is civil, dignified, respectful, and one that does its dead level best to keep politics out of the process. Yesterday, President Bush did his part by announcing the nomination of Judge Roberts, and now it is up to us in the Senate to do our part to ensure that the process for confirming this nomination does honor to the Supreme Court, to the Senate, and to the Nation. The Supreme Court of the United States is one of our Nation's most cherished institutions. It is also our Nation's most powerful symbol of our commitment to constitutional democracy and the rule of law. We need men and women who serve on that Court who meet the highest standards of integrity, intellect, and character. Most important, we need men and women who are committed to the principle that the duty of unelected judges in a democracy is to apply the law as written by the people's representatives and not to make the law up as they go along. By every indication, Judge Roberts fits this description of what I would consider to be an ideal nominee. Judge Roberts was educated at Harvard College and Harvard Law School. Before he became a judge on the District of Columbia Court of Appeals in 2003, he was widely regarded as one of the most outstanding advocates practicing before the U.S. Supreme Court. He has argued dozens of cases before the Court, both as a lawyer in private practice in Washington and as a public servant. Over the years, he has held a wide variety of positions with the Department of Justice, including Principal Deputy Solicitor General, the Federal Government's second highest ranking lawyer before the U.S. Supreme Court. With these credentials, it is not surprising that we confirmed this nominee to the Court of Appeals by unanimous consent just 2 years ago. Although Judge Roberts has been on the bench only since 2003, his distinguished legal career leaves no doubt that he is extraordinarily well qualified for the Supreme Court. It bears remembering that Chief Justice Rehnquist had never served as a judge before he was nominated to the Court. Similarly, Justice Sandra Day O'Connor, who Justice Roberts will be succeeding if confirmed, had served only briefly as a State court judge before she was elevated to the Supreme Court. As Senator Leahy, the ranking member of the Senate Judiciary Committee, said at her confirmation hearing, although: . . . her tenure on the appellate bench has not been long in years . . . we should realize that only 60 of the 101 Justices sitting now or in the past have had any prior judicial experience. Only 41 of these have had more than 5 years of service when confirmed, and among those who had no prior experience when confirmed to the United States Supreme Court were included John Marshall and Joseph Story. As you know, Justices Marshall and Story were two of the most distinguished Justices who ever served on the Supreme Court and, indeed, in our Nation's history. Although the number cited by Senator Leahy has changed some over the years since Justice O'Connor was confirmed, his point still stands. One does not need to be a career jurist to serve this Nation with distinction as a Justice of the U.S. Supreme Court. I believe the President has made a commendable decision, nominating Judge Roberts. As I stated earlier, the American people deserve from the President a Supreme Court nominee who reveres the law. From all reports, that is exactly what the American people received yesterday. From the Senate, the American people deserve a confirmation process that is civil, dignified, and respectful, and one that keeps politics out of the judiciary as much as is humanly possible. One of the challenges we face when considering a nominee, and particularly one such as Judge Roberts who has had such a long and distinguished career serving clients, is to understand that his work on behalf of his clients does not necessarily reflect his personal views that may appear on a variety of legal documents likely to come before the Senate. As all of us who have practiced law know, the duty of the lawyer is to make sure to make the very best possible argument on behalf of his or her client, regardless of whether the lawyer would agree with those arguments in the first instance. Litigants in our adversarial system of justice are supposed to be judged by a jury of their peers, not by their lawyers. I think it very important that we keep this in mind. Just as we would not judge Judge Roberts nor should we judge Judge Roberts by the positions he has taken on behalf of clients he has represented, we would not judge a prospective nominee should he or she have practiced, let's say, in the area of criminal law, and have defended people who have been accused of crimes. We would not impute those crimes or that position to the lawyer who is representing them, providing them the legal defense to which they are entitled under our constitutional system. My argument is we should simply apply that same standard to Judge Roberts and any other nominee as well. I think it is also important that we remain aware there are those outside of this Chamber who will try to taint this process. Already we have seen those who seem to have had a ``fill in the blank'' press releases, waiting only for the name of the prospective nominee before they send them out into cyberspace and across America and indeed around the world. We know there are those outside these Chambers who will try to vilify any nominee in order to exploit this process for political gain, including raising money. I can only hope we will not, in this body, the 100 Senators who work here and represent our constituents, be tempted by the outside interest groups to engage in the same sort of irresponsible rhetoric that is used by too many of them. Let us behave as Senators. Let us do our human best to uphold the dignity of this great body. And let us try to uphold the dignity of the U.S. Supreme Court and conduct ourselves in a manner worthy of the American people. History affords some benchmarks to the Senate for determining whether the Senate has undertaken a confirmation process worthy of the Court and of the American people. There is a right way and, unfortunately, a wrong way to debate the merits of a Supreme Court nominee. In 1993, as I have observed previously on this floor, President Clinton nominated Ruth Bader Ginsburg, a distinguished jurist but one with an extensive record of activism in a variety of liberal causes outside of the judiciary. The Senate looked past all of that and voted to confirm Justice Ginsburg by an overwhelming bipartisan vote. The Senate did so because we understood our proper role in the confirmation process should embody three principles: First, that we should focus our attention on judicial qualifications, not personal political preferences; second, we should engage in respectful and honest inquiry, not partisan personal attacks; and third, we should apply the same fair process, confirmation or rejection by majority vote, that has existed for more than 214 years of our Nation's history. Yes, this is an important moment for our country. The nomination of any person to the U.S. Supreme Court is a celebration of our Constitution and our Nation's commitment to the rule of law. The President has nominated an impressive individual to serve on our Nation's highest Court and I look forward, as just one Member of this body, to a dignified, civil, and respectful confirmation process in the Senate. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, just a few moments ago, we all learned, through the miracle of modern technology, that the President intends to announce his Supreme Court nominee tonight at 9 p.m. when he addresses the Nation. This is certainly the culmination of an unprecedented consultative process that this President has undertaken with the Senate, spending more than 2 weeks now, I believe, reaching out to Senators on both sides of the aisle, asking for their suggestions. Now, the President believes that it is appropriate for him to name the successor to Justice Sandra Day O'Connor on the U.S. Supreme Court. It is my hope that tonight's announcement will be met with some restraint on the part of the Members of the Senate, that we will hold our fire, and that we will not prejudge this nominee or seek to use this as an opportunity to perhaps disparage the nominee before we have had a chance to ask questions, before the nominee has had a chance to meet with Members, and before we have had a chance to conduct a hearing before the Senate Judiciary Committee, as we will surely do either in late August or early September. We can do better in the Senate than we have done in the recent past when it comes to judicial nominations. I think we have shown that we can conduct ourselves with dignity and civility, even as we have disagreed. Indeed, that is one of the great things about this body-- that even people who disagree can debate, but then turn that debate over to our colleagues for an up-or-down vote and the judgment of the American people. I hope we have a dignified process and one that reflects well on the Senate, that treats this nominee fairly, and allows the President to have his nominee considered in the regular course of our business. Throughout this debate, even before the President has named a nominee, various Senators have come to the floor and opined about how this process should go forward. I will respond to some of the comments made earlier today by the senior Senator from Massachusetts regarding the process. The senior Senator from Massachusetts envisions a step in this process where the President gives him and his colleagues the ability to veto particular nominees--in other words, suggesting that the President ought to perhaps share some on his short list with the Senate before the President can name a particular nominee. Nothing in the Constitution provides for or requires such a step. The President is under no obligation to give any Senator the power to veto his nomination. The Constitution entrusts the President with the power to nominate, and there is no requirement for the President to do anything further. Indeed, as I mentioned a moment ago, this President has gone above and beyond the call and consulted in an unprecedented manner. But certainly the Constitution doesn't give this President, or impose upon this President, the obligation to allow Senators to co-nominate their particular choice along with the President. Rather, it provides for separate and distinct functions for the President to nominate and then for the Senate to conduct hearings, to act in its role of advice and consent, and then to vote on the nominee. The senior Senator from Massachusetts has said he wants the President to nominate someone who is independent and impartial. I submit that the best way to do that is to do precisely the opposite of what the senior Senator from Massachusetts says he intends to do; that is, he says he intends to demand that the nominee answer questions about how he or she will rule on particular questions or particular issues. The Senator has stated his intention to ask nominees how they would rule on a host of different issues. Today, he mentioned several of them--everything from retirement benefits to college admission standards. He even noted that all of these issues are likely to be subjects of future Court decisions. It would, however, undermine the independence of the nominee and the judiciary to demand that he or she answer questions about issues that are likely to come before the Court. How can a nominee be truly independent from the Congress if they are required to make a pledge to certain outcomes in the Senate in order to get confirmed? Well, simply stated, they cannot be independent and make such a pledge. So it would be inappropriate for any nominee to make that pledge. While certainly I recognize and respect the right of any Senator to ask any question he or she wants, no nominee worthy of confirmation would in fact answer those questions and make such a pledge. It would also undermine the impartiality of the person nominated to demand that he or she answer questions on issues likely to come before the Court. Imagine if you came before a judge and you find out that that judge already, during the confirmation process, stated his or her belief in the correctness of a certain outcome, before you have even had a chance to present your case to the Court. Imagine if that judge promised the President or a Senator that he or she would rule against you no matter what you said. That is not equal and open-minded justice. That is not a judicial process but rather a political process, and one we ought to avoid at all costs. It is also not how we have conducted our business in the recent past. Justice Ginsburg was confirmed by the Senate by a vote of 96 to 3. Before her service on the Federal bench, Justice Ginsburg served as general counsel of the American Civil Liberties Union, a liberal organization that has championed the abolition of traditional marriage laws and challenged the Pledge of Allegiance because the words ``under God'' are invoked in that pledge. Before she became a judge, now-Justice Ginsburg expressed opposition to laws prohibiting bigamy and prostitution. She wrote that the Boy Scouts and Girl Scouts were discriminatory institutions, and that taxpayer funds should be used to pay for abortions--hardly views that the American people would view as mainstream. Yet the Senate did not engage in asking her to make prejudgments about cases she later would rule on from the Supreme Court. They did not ask her to make promises to politicians about how she would perform once confirmed. Indeed, Republicans and Democrats alike set aside such concerns and approved her nomination. Make no mistake, I am just as curious as anybody else about what the private views of a nominee might be. But the need to assure a fair process and an independent judiciary and to avoid the hyper- politicalization of this process more than outweighs a results-oriented curiosity on my part or on the part of any other Senator, I submit. Finally, the Senator from Massachusetts said he also wants the President to nominate a consensus choice to the Supreme Court. But it will be up to the Senator and his other colleagues whether the nominee meets their definition of what actually constitutes a consensus choice. The President has said he intends to nominate someone in the mold of Justice Scalia. Justice Scalia was confirmed by a vote of 98 to 0. That is quite a consensus. So long we do not change the standard from when the nomination of Justice Scalia was considered or Justice Ginsburg was considered, then we will have a relatively easy time confirming the President's selection if they meet the basic qualifications of legal scholarship, high ethical rectitude; in short, the type of person we would entrust with making the weighty decisions that are made by the Supreme Court. But if we, to the contrary, revert to a political process, one that is accusatory of this nominee before we actually have a chance to investigate their background and fitness for this office, if we engage in asking nominees to make promises to politicians about how they will rule in the future, I think we will not have conducted ourselves in the best traditions of the Senate, and certainly not in a way that befits the awesome responsibility imposed upon the Senate under the Constitution of the United States. Mr. President, I yield the floor.

Mr. CORNYN. Mr. President, I ask unanimous consent to speak as in morning business.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise today to say a few words about one of the greatest inventors--one of the most important innovators--in American history. One of America's greatest assets is the innovation and creativity of its inventors, scientists, and artists. Many of our most famous inventors have long been household names--well-known Americans such as Thomas Jefferson, Thomas Edison, Alexander Graham Bell, and the Wright Brothers. These, and many other inventors, captured the imagination of a public rooted in the Industrial Age, through ideas which produced the telephone, the automobile, the airplane--all inventions we now consider indispensable items. We now find ourselves in the initial stages of a new revolution--the Information Age. The rapid growth and development of information technology literally changes our lives by the second. This is an exciting time, and we have only just seen the beginning of this age. However, the pioneers of today don't roll off the tongue like those from years past. While some high-profile corporate leaders such as Bill Gates, Michael Dell, and other technology entrepreneurs come to mind, there are many unsung heroes without whom we may never have known the modern computer, the cell phone, or high-definition TV. One of these unsung heroes is Jack St. Clair Kilby, who passed away June 20, 2005, at 81 years of age. You see, a little less than 50 years ago, Mr. Kilby invented something called the integrated circuit. Today, we would refer to it as the microchip. The integrated circuit, or early microchip, spawned the Information Age and has made so much of the modern world as we know it today possible. Prior to Kilby's breakthrough, engineers were grappling with how to build better electronic circuits. At the time, transistors had replaced vacuum tubes--a major advancement--but electronic devices were still composed of hundreds or thousands of discrete components which were connected to thousands of wires. The challenge was to find a cost- effective, reliable way of producing the components and connecting them. Kilby approached the problem in a completely novel way, making all the components of a single material. The device consisted of a single transistor and a few other components combined on a slice of germanium smaller than a paper clip. For context, today an integrated circuit smaller than a penny can hold 125 million transistors. From this first simple circuit has grown a worldwide integrated circuit market whose sales in 2004 totaled $179 billion. These components supported a 2004 worldwide electronic end-equipment market of $1.186 trillion. This technology has affected every known industry in the world in some form or fashion--healthcare, education, transportation, manufacturing, entertainment--and has made IT products more accessible and more affordable for the common man. Jack Kilby enjoyed the admiration and respect of his colleagues and others throughout the industry. Texas Instruments Chairman Tom Engibous said of Kilby: In my opinion, there are only a handful of people whose works have truly transformed the world and the way we live in it--Henry Ford, Thomas Edison, the Wright Brothers and Jack Kilby. If there was ever a seminal invention that transformed not only our industry but our world, it was Jack's invention of the first integrated circuit. Jack St. Clair Kilby was born November 8, 1923, in Jefferson City, MO, and moved as a young child to Great Bend, KS, where he was raised and which he considered his hometown. His interest in electronics, radio technology in particular, was inspired by an experience in high school when an ice storm knocked down most of the telephone and power lines in a wide area in rural Kansas. His father, who ran a small electric company, worked with amateur radio operators to locate the areas that had been hit and to coordinate the provision of electrical service. Kilby served his country in the U.S. Army during World War II, where he was assigned to a radio repair shop at an outpost on a tea plantation in northeast India and later performed similar work in the field. He studied electrical engineering at the University of Illinois both before and after the war, earning a bachelor's degree in 1947. Like many of his generation, Mr. Kilby put his personal life on hold to serve his country. After working obtaining a masters degree from the University of Wisconsin in 1950, Kilby joined Texas Instruments in Dallas in 1958 where he developed the first monolithic integrated circuit. He presented this invention to colleagues and tested it on September 12, 1958, and within 4 years, TI won the first major integrated circuit contract to design and build special circuits for the Minuteman missile project. Kilby enjoyed a productive career at TI, where he held several management positions, including assistant vice president and director of engineering and technology for the Components Group. But more importantly, he created or helped to create some 60 patentable items, including the invention of the first hand-held calculator, which, in conjunction with his microchip design, initiated the early development of computers and was one of the first public introductions to digital electronics. Kilby was widely recognized for his work. Most notably, he was awarded the Nobel Prize for Physics in 2000. In addition, he won the National Medal of Science and the National Medal of Technology. Finally, a prestigious international award, the Kilby International Awards, bears his name. He passed away on June 20, 2005, at the age of 81 after a brief battle with cancer. His wife and sister preceded him in death. He is survived by two daughters, five granddaughters, and a son-in-law. Likewise, he leaves behind countless friends, colleagues, and admirers. In addition to his enormous contribution to science and technology, Mr. Kilby was known as a gentle and humble man who was tirelessly dedicated to his family and passionate about finding practical solutions to real problems. He loved to work with young students and engineers. He served as distinguished professor of electrical engineering from 1978 to 1984 at Texas A&M University, where he was able to share his experience, insight, and passion for research with students. He took an active interest in and consistently was available to young engineers, even young high school and grade school students who asked to interview him about his work. Certainly he hoped to inspire these young people. His contributions to science as well as his generosity and thoughtfulness were lessons for us all. Mr. President, I introduce a senate resolution honoring the life of Nobel Laureate Jack St. Clair Kilby, inventor of the integrated circuit and long-time engineer for Texas Instruments, to commend his work and tremendous contribution to the electronics industry and to the transformation of the global economy to the Information Age. I ask that my colleagues join me in supporting this resolution.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise today to say a few words about one of the greatest inventors--one of the most important innovators--in American history. One of America's greatest assets is the innovation and creativity of its inventors, scientists, and artists. Many of our most famous inventors have long been household names--well-known Americans such as Thomas Jefferson, Thomas Edison, Alexander Graham Bell, and the Wright Brothers. These, and many other inventors, captured the imagination of a public rooted in the Industrial Age, through ideas which produced the telephone, the automobile, the airplane--all inventions we now consider indispensable items. We now find ourselves in the initial stages of a new revolution--the Information Age. The rapid growth and development of information technology literally changes our lives by the second. This is an exciting time, and we have only just seen the beginning of this age. However, the pioneers of today don't roll off the tongue like those from years past. While some high-profile corporate leaders such as Bill Gates, Michael Dell, and other technology entrepreneurs come to mind, there are many unsung heroes without whom we may never have known the modern computer, the cell phone, or high-definition TV. One of these unsung heroes is Jack St. Clair Kilby, who passed away June 20, 2005, at 81 years of age. You see, a little less than 50 years ago, Mr. Kilby invented something called the integrated circuit. Today, we would refer to it as the microchip. The integrated circuit, or early microchip, spawned the Information Age and has made so much of the modern world as we know it today possible. Prior to Kilby's breakthrough, engineers were grappling with how to build better electronic circuits. At the time, transistors had replaced vacuum tubes--a major advancement--but electronic devices were still composed of hundreds or thousands of discrete components which were connected to thousands of wires. The challenge was to find a cost- effective, reliable way of producing the components and connecting them. Kilby approached the problem in a completely novel way, making all the components of a single material. The device consisted of a single transistor and a few other components combined on a slice of germanium smaller than a paper clip. For context, today an integrated circuit smaller than a penny can hold 125 million transistors. From this first simple circuit has grown a worldwide integrated circuit market whose sales in 2004 totaled $179 billion. These components supported a 2004 worldwide electronic end-equipment market of $1.186 trillion. This technology has affected every known industry in the world in some form or fashion--healthcare, education, transportation, manufacturing, entertainment--and has made IT products more accessible and more affordable for the common man. Jack Kilby enjoyed the admiration and respect of his colleagues and others throughout the industry. Texas Instruments Chairman Tom Engibous said of Kilby: In my opinion, there are only a handful of people whose works have truly transformed the world and the way we live in it--Henry Ford, Thomas Edison, the Wright Brothers and Jack Kilby. If there was ever a seminal invention that transformed not only our industry but our world, it was Jack's invention of the first integrated circuit. Jack St. Clair Kilby was born November 8, 1923, in Jefferson City, MO, and moved as a young child to Great Bend, KS, where he was raised and which he considered his hometown. His interest in electronics, radio technology in particular, was inspired by an experience in high school when an ice storm knocked down most of the telephone and power lines in a wide area in rural Kansas. His father, who ran a small electric company, worked with amateur radio operators to locate the areas that had been hit and to coordinate the provision of electrical service. Kilby served his country in the U.S. Army during World War II, where he was assigned to a radio repair shop at an outpost on a tea plantation in northeast India and later performed similar work in the field. He studied electrical engineering at the University of Illinois both before and after the war, earning a bachelor's degree in 1947. Like many of his generation, Mr. Kilby put his personal life on hold to serve his country. After working obtaining a masters degree from the University of Wisconsin in 1950, Kilby joined Texas Instruments in Dallas in 1958 where he developed the first monolithic integrated circuit. He presented this invention to colleagues and tested it on September 12, 1958, and within 4 years, TI won the first major integrated circuit contract to design and build special circuits for the Minuteman missile project. Kilby enjoyed a productive career at TI, where he held several management positions, including assistant vice president and director of engineering and technology for the Components Group. But more importantly, he created or helped to create some 60 patentable items, including the invention of the first hand-held calculator, which, in conjunction with his microchip design, initiated the early development of computers and was one of the first public introductions to digital electronics. Kilby was widely recognized for his work. Most notably, he was awarded the Nobel Prize for Physics in 2000. In addition, he won the National Medal of Science and the National Medal of Technology. Finally, a prestigious international award, the Kilby International Awards, bears his name. He passed away on June 20, 2005, at the age of 81 after a brief battle with cancer. His wife and sister preceded him in death. He is survived by two daughters, five granddaughters, and a son-in-law. Likewise, he leaves behind countless friends, colleagues, and admirers. In addition to his enormous contribution to science and technology, Mr. Kilby was known as a gentle and humble man who was tirelessly dedicated to his family and passionate about finding practical solutions to real problems. He loved to work with young students and engineers. He served as distinguished professor of electrical engineering from 1978 to 1984 at Texas A&M University, where he was able to share his experience, insight, and passion for research with students. He took an active interest in and consistently was available to young engineers, even young high school and grade school students who asked to interview him about his work. Certainly he hoped to inspire these young people. His contributions to science as well as his generosity and thoughtfulness were lessons for us all. Mr. President, I introduce a senate resolution honoring the life of Nobel Laureate Jack St. Clair Kilby, inventor of the integrated circuit and long-time engineer for Texas Instruments, to commend his work and tremendous contribution to the electronics industry and to the transformation of the global economy to the Information Age. I ask that my colleagues join me in supporting this resolution.

Mr. CORNYN

Mr. CORNYN. Mr. President, might I inquire--I do wish to seek recognition on behalf of the manager, but I would like to know how long the Senator is expected to speak.

Mr. CORNYN

Mr. CORNYN. Mr. President, I yield myself 15 minutes out of the majority time, the manager's time, to address a different subject, but one that is timely given some developments earlier today. On July 3, the Washington Post reported that Democrats signaled that whoever the nominee to the U.S. Supreme Court is, their three likely lines of attack will be to assert that the White House did not consult sufficiently, to paint the nominee as ideologically extreme, and to finally assert that the Senate has not received sufficient documents about the candidate. I will address the second prong of this three-prong attack. That has to do with ideology and the personal views of the nominee, or perhaps asking the nominee to predict how they would likely rule on an issue were it to come before the U.S. Supreme Court. Over the past few days, some Members on the other side of the aisle have stated their intention to ask whomever the President nominates to the Supreme Court a series of questions on where that nominee stands on controversial political issues. For example, yesterday the senior Senator from Massachusetts said he wants to know whether the nominee supports laws related to the environment, civil rights, and abortion. The senior Senator from New York today said he wants to know what the nominee thinks about any one of a number of things, including the appropriate role of religion in government and how to balance environmental interests against energy interests. Indeed, the senior Senator from New York has said that ``every question is a legitimate question, period.'' These questions must be answered, they say, because they have a right to know what the nominee's so-called ``judicial philosophy'' is. Let me be clear. Any one of the 100 Senators who has been elected and who serves in this Senate has a right under the First Amendment, if nowhere else, to ask any question they want. However, these statements of the last few days indicating the scope of questions that some Senators intend to ask represents something of a change of heart. During Justice O'Connor's confirmation hearing, for example, the Senator from Massachusetts declared: . . . [i]t is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential Justice must pass the litmus test of any single-interest group. The Senator's colleagues have always agreed with him on that. And I agree with the position he took at that time, but not with the position he is taking more recently. Also during Justice O'Connor's confirmation hearing, the senior Senator from Delaware noted: [w]e are not attempting to determine whether or not the nominee agrees with all of us on each and every pressing social or legal issue of the day. Indeed, if that were the test, no one would ever pass by this committee, much less the full Senate. Similarly, the senior Senator from Vermont declared during the same hearing that: Republican or Democrat, a conservative or a liberal. That's not the issue. The issue is one of competence and whether she has a sense of fairness. The question is, Why the change of heart? I submit that one potential answer is because it has been a long time since the Senate has considered a Supreme Court nominee and perhaps some need to be reminded what the role of a judge in a democracy is. As a former judge myself, let me share a few observations with my colleagues. Put simply, judges are not politicians. Judges do not vote on cases like politicians vote on legislation. Judges do not vote for or against environmental laws because their constituents demand it or because their consciences tell them to. They are supposed to rule on cases only in accordance with the law as written by the people's representatives. If a judge disagrees with the law as written, then he or she is not supposed to substitute his or her views for the people's views. Any other approach is simply inconsistent with democratic theory, with government by the people, and with respect for the rule of law. It is worth noting that this has not always been the case. The judicial system in England during and before the American Revolution was one where judges made the law. This is called our common law system or common law heritage. Judges made up the law as they went along, trying to divine the best rules to govern the interaction between citizens. This was a heady power, the common law-making power, to decide what policies best serve mankind. This is not, however, the judicial system created by our Founding Fathers or by the Federal Constitution to govern the Federal courts, including the U.S. Supreme Court. The Founding Fathers did not believe it was consistent with democracy to allow unelected judges to make laws that govern the people. We know this for three reasons. First, we know this because the Constitution says so. The Constitution quite clearly at the very outset says ``all legislative powers''--the power to make the law--``shall be vested in [the] Congress.'' This means no power to make law is vested in our courts, even in the U.S. Supreme Court. Second, we know this because the Framers told us explicitly this is what they had envisioned. In Federalist Paper No. 47, for example, James Madison noted: [W]ere the power of judging joined with the legislative, the life and liberty of the [people] would be exposed to arbitrary control, for the judge would then be the legislator. Finally, we know this because the Supreme Court has also told us so. In 1938, in the famous case of Erie v. Tompkins, the Supreme Court declared in no uncertain terms that ``[t]here is no federal general common law.'' Judges in our Federal system do not make law, or I should say are not supposed to make law. The laws are made for them and indeed for the entire Nation by the people's representatives in the form of statutes enacted by the Congress and in the form of the Constitution that we the people have ratified to govern our affairs. These are legal texts and they are supposed to tie the hands of judges in our system. Judges in our system are not supposed to make up the law as they go along. They are simply supposed to apply the laws made by the people to the facts at hand. If the law is to change, it is because the people are the ones who are supposed to change it, not because judges do. Federal judges, again, have no general common law-making power. Once we remember the role of judges, unelected judges, in our democracy, it is clear why the questions some members of the body intend to propound to the President's nominees are so wrongheaded. So long as we satisfy ourselves that the President's nominee will do what the President has said he wants his nominee to do--which is to not make up the law but to simply implement the law as it has already been enacted by the people's representatives--there is simply no reason to demand answers from the nominee on particular cases. Indeed, the only possible reason a Member would ask these kinds of questions is to try to make political hay out of the nominee's personal views. Special interest groups, in order to raise money from donors, are pressing members of this Senate to do just that. But I sincerely hope we can resist the temptation to turn the impending confirmation hearings into a political fundraising opportunity. After all, a precedent for the right way to do things exists in the confirmation of Justice Ruth Bader Ginsburg in 1993. Prior to her service on the Federal bench, Justice Ginsburg, a distinguished jurist and liberal favorite, served as the general counsel for the American Civil Liberties Union, an organization that has championed the abolition of traditional marriage laws and challenged the validity of the Pledge of Allegiance for invoking the phrase ``One nation under God.'' Before becoming a judge, Justice Ginsburg expressed her belief that traditional marriage laws are unconstitutional and that prostitution should be a constitutional right. She had also written that the Boy Scouts and Girl Scouts are discriminatory institutions and the courts must allow the use of taxpayer funds to pay for abortions--hardly views the American people would consider mainstream. Yet Senate Republicans and Senate Democrats alike did not try to exploit her personal views; rather, they overwhelmingly approved her nomination. There are other reasons why it is inappropriate to demand answers to questions about particular political issues. The Founding Fathers wanted our judges to be independent from the political branches. It threatens the independence of the judiciary to parade nominees in front of this body and then to ask them to state their views on whether, for example, this body has the constitutional power to enact certain environmental and civil rights laws. How a nominee can remain independent if his or her confirmation is conditional on whether he or she pledges to uphold legislation from this body is beyond me. A nominee could not remain independent having made such a pledge, so they should not make that pledge nor, I submit, should they be asked to make that pledge. In addition, judges in our system are supposed to be impartial. That is why Lady Justice has always been blindfolded. It undermines a nominee's ability to remain impartial once he or she becomes a judge if he or she has already taken positions on issues that might come before him or her on the bench. For example, if we force nominees to pledge to uphold certain environmental or civil rights laws enacted by this body in order to win confirmation, how is a litigant, challenging one of those laws in court, supposed to feel when the nominee sits to hear that case? The litigant would certainly not feel as though he or she is receiving equal and open-minded justice, I can promise you that. It is for this reason the American Bar Association has promulgated a canon of judicial ethics that prohibits a nominee from making ``pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.'' It is also why, as Justice Ginsburg has recently noted in an opinion she wrote, that, although ``how a prospective nominee for the bench would resolve particular contentious issues would certainly be of interest to the . . . Senate in the exercise of [its] confirmation power[,] . . . in accord with a longstanding norm, every member of [the Supreme] Court declined to furnish such information to the Senate.'' In other words, just because some Members may ask these questions does not mean the President's nominee should answer them. In accordance with long tradition and norms of the Senate in the confirmation process, they should not answer them. In conclusion, Mr. President, let me say that I hope Members reconsider their intention to condition the confirmation of the President's nominees on their adherence to a particular political platform. Judges are not politicians, and we do a disservice to the judicial branch and its role in our democracy by trying to treat them as such. Mr. President, I reserve the remainder of our time and yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise today to introduce the ``Respirator Access Assurance Act of 2005.'' This legislation is not a complex or lengthy proposal, but it is critically important for our men and women in uniform, our first responders, and the American public as we continue to wage the war on terror. It is designed to protect the companies that manufacture respirators from abusive litigation--the very respirators that we need for protection against life-threatening environmental hazards and contaminates. Even as we continue today to debate important appropriations legislation for the Department of Homeland Security, the many American manufacturers and sellers of one of the types of equipment necessary in the war on terror and for our first responders generally--respirators-- are being forced by misdirected litigation to decide whether to abandon that market. Since the year 2000, American respirator manufacturers have experienced an avalanche of mass lawsuits in which thousands of plaintiffs claim they suffered lung damage from respirators because of defective designs and/or failure to provide adequate warnings. Between 2000 and 2004, well over 300,000 individual claims have been filed against major respirator manufacturers. Many of these people show no symptoms of illness. Respirator manufacturers are included among dozens of defendants in these lawsuits, despite some very important facts. First, respirators don't cause lung disease--employers are legally responsible for providing the right respirator to an employee for the environment in which the employee will be working. Respirator manufacturers have no role in that decision. Second, respirators are 100 percent regulated by the U.S. Government. The National Institute for Occupational Safety and Health, or NIOSH, sets the design standards for respirators, tests every product in its own labs, approves all warning labels, and monitors the manufacturing process to be sure respirators meet the standards for which they were designed. Perhaps most troubling is the extent to which these claims track very closely with the recent explosion of asbestos and silicosis claims. Recently, a number of ethical questions surrounding many of these claims have come to light. In my home State of Texas, a Federal court in Corpus Christi under the watch of Judge Janis Graham Jack, has been trying to sort out a few thousand of these cases. That Multi-District Litigation has turned up evidence of fraud--in Judge Jack's words--``great red flags of fraud,'' and highlights attempts by some to recycle plaintiffs who have already recovered in asbestos litigation by claiming they also have silicosis, which is a virtual medical impossibility. Just today, the Wall Street Journal ran an editorial highlighting this ``tort scam.'' As it points out, ``Judge Jack not only blasted nearly everyone of the 10,000 silicosis claims in front of her court, she documented the fraudulent means by which lawyers, doctors, and screening companies had manufactured the claims.'' She said, ``These diagnoses were about litigation rather than health care . . . these diagnoses were manufactured for money.'' I ask unanimous consent that the Wall Street Journal editorial be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise today to introduce the ``Respirator Access Assurance Act of 2005.'' This legislation is not a complex or lengthy proposal, but it is critically important for our men and women in uniform, our first responders, and the American public as we continue to wage the war on terror. It is designed to protect the companies that manufacture respirators from abusive litigation--the very respirators that we need for protection against life-threatening environmental hazards and contaminates. Even as we continue today to debate important appropriations legislation for the Department of Homeland Security, the many American manufacturers and sellers of one of the types of equipment necessary in the war on terror and for our first responders generally--respirators-- are being forced by misdirected litigation to decide whether to abandon that market. Since the year 2000, American respirator manufacturers have experienced an avalanche of mass lawsuits in which thousands of plaintiffs claim they suffered lung damage from respirators because of defective designs and/or failure to provide adequate warnings. Between 2000 and 2004, well over 300,000 individual claims have been filed against major respirator manufacturers. Many of these people show no symptoms of illness. Respirator manufacturers are included among dozens of defendants in these lawsuits, despite some very important facts. First, respirators don't cause lung disease--employers are legally responsible for providing the right respirator to an employee for the environment in which the employee will be working. Respirator manufacturers have no role in that decision. Second, respirators are 100 percent regulated by the U.S. Government. The National Institute for Occupational Safety and Health, or NIOSH, sets the design standards for respirators, tests every product in its own labs, approves all warning labels, and monitors the manufacturing process to be sure respirators meet the standards for which they were designed. Perhaps most troubling is the extent to which these claims track very closely with the recent explosion of asbestos and silicosis claims. Recently, a number of ethical questions surrounding many of these claims have come to light. In my home State of Texas, a Federal court in Corpus Christi under the watch of Judge Janis Graham Jack, has been trying to sort out a few thousand of these cases. That Multi-District Litigation has turned up evidence of fraud--in Judge Jack's words--``great red flags of fraud,'' and highlights attempts by some to recycle plaintiffs who have already recovered in asbestos litigation by claiming they also have silicosis, which is a virtual medical impossibility. Just today, the Wall Street Journal ran an editorial highlighting this ``tort scam.'' As it points out, ``Judge Jack not only blasted nearly everyone of the 10,000 silicosis claims in front of her court, she documented the fraudulent means by which lawyers, doctors, and screening companies had manufactured the claims.'' She said, ``These diagnoses were about litigation rather than health care . . . these diagnoses were manufactured for money.'' I ask unanimous consent that the Wall Street Journal editorial be printed in the Record.

Mr. CORNYN

Mr. CORNYN. I ask unanimous consent to extend privileges of the floor for the remainder of the first session of the 109th Congress to Brian Fitzpatrick, a fellow in my staff.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on July 13, 2005, at 10 a.m., to conduct a hearing on ``Money Laundering and Terror Financing issues in the Middle East.''

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Wednesday, July 13, 2005, at 9:30 a.m. for a hearing titled, ``Chemical Facility Security: What Is the Appropriate Federal Role?''

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on ``Habeas Corpus Proceedings and Issues of Actual Innocence'' on Wednesday, July 13, 2005, at 9:30 a.m. in Dirksen 226.

Mr. CORNYN. Mr. President, I ask unanimous consent that the Subcommittee on Aviation be authorized to meet on Wednesday, July 13, 2005, at 10 a.m., on the Financial Stability of the Airlines.

Mr. CORNYN. Mr. President, I ask unanimous consent that the Subcommittee on Fisheries, Wildlife, and Water be authorized to meet on July 13, 2005, at 9:30 a.m., to hold a hearing to discuss the Endangered Species Act.

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on July 13, 2005, at 9:30 a.m., to receive testimony on the investigation into FBI allegations of detainee abuse at the Guantanamo Bay, Cuba Detention Facility.

Mr. CORNYN

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

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

Mr. CORNYN. Mr. President, I will speak for a few minutes and highlight some of the important provisions of this appropriations bill, specifically as they pertain to the issue of border security. The Senator from New Hampshire, the chairman of the Subcommittee on Homeland Security, along with the entire Appropriations Committee, have done much good that should be heralded. But those steps should also be seen as just a first step toward getting us in the right direction, which is to obtain operational security of our Nation's borders, something we do not have now and something which represents a clear threat to our national security. As the Senate Committee on Appropriations recognized, these resources are just a first step toward true reform of our immigration system. Additional enforcement resources along the border will be needed. In that connection, Senator Kyl, the junior Senator from Arizona, and I will be filing a bill within the next couple of weeks that will authorize additional resources to secure our border. Our Nation's immigration and border security system is badly broken. It leaves our borders unprotected and threatens our national security. It makes a mockery of the rule of law. This system unfortunately has suffered from years of neglect. But in a post-September 11 world we simply cannot tolerate this situation any longer. We stand here today almost 4 years from that terrible date, and we are reminded as recently as just last week--with the attacks in London--that terrorism is a real and tangible threat to the free world. National security demands a comprehensive solution to our immigration system. That means both stronger enforcement and reasonable reform of our immigration laws. We have to confess that we have not devoted the funds, the resources, and the manpower necessary to enforce our immigration laws and protect our borders. Representing a border State with about 1,600 miles of border with Mexico, I can state that for too long Washington has simply taken the attitude that this is a local or State problem. If it is not the duty of the Federal Government to deal with the security of our borders, whose responsibility is it? It is a Federal responsibility, and it is one that has simply been abdicated for far too long. No discussion of comprehensive immigration reform, however, is possible without a clear commitment to and a substantial and dramatic escalation of our efforts to enforce the law. In my capacity as the chairman of the Subcommittee on Immigration, Border Security and Citizenship of the Senate Judiciary Committee, we have held a number of hearings on this issue of border security and immigration enforcement. They have been quite revealing. I will share some of the information with our colleagues because it supports the direction in which this Homeland Security appropriations bill takes us, and puts us one step closer to the final goal: control of our borders and a secure, orderly immigration process. The Department of Homeland Security has testified recently that they do not have operational control over parts of the southern border. That is obvious to those who live and work along that border and represent those States. My constituents have told me as recently as last week when I traveled to south Texas, to Laredo, TX, when I traveled to McAllen, TX, and the Rio Grande Valley that the nature of the immigrants coming across our southern border is vastly different from what it has historically been. For example, over the last 3 years, the number of apprehensions of those designated as ``OTM,''--other than Mexican--has doubled from 37,316 in 2002 to 75,000-plus in 2004. This year, it is currently 96,000. It is likely that the number will be twice this year what is was last year. The vast majority of these individuals who are apprehended as they come across the border are from countries that you would expect: Mexico and countries in Central and South America. However, the Border Patrol chief, Chief Aguilar, has testified at one of our hearings that 400 aliens from special-interest countries had been apprehended last year. Some come from countries that support international terrorism. That ought to be a grave concern to all of us. We need to expend additional resources, both to ensure we are apprehending aliens who are trying to enter our country illegally, and to make sure we detain them and remove them in an expedited fashion. Let me bring to the attention of our colleagues some of the facts because they may not be aware of them. I think they will be shocked to find out how unsuccessful we are, despite the best efforts of the Department of Homeland Security. Last year alone, the Border Patrol detained roughly 1.1 million people coming across our borders. Now, my information, from those who are on the ground who deal with this on a day-in-and-day-out basis, is that they think they probably are capturing between one out of every three or one out of every four. Yet last year alone they captured approximately 1.1 million and detained them. But the concern is that we only have roughly 20,000 detention beds. So what the Border Patrol does is, after doing a background check, after which they run these aliens' names against a terrorist watch list and various criminal justice data bases, they engage in what can only be called a catch-and-release program. In other words, they release them on their own recognizance based on their promise to return for further proceedings later on. It should come as no surprise that the overwhelming number of these detainees do not reappear for their hearing, and they simply melt into the landscape. As a result of this flawed policy, we know we have approximately 10 million people living in our country outside of our laws. And those numbers are getting bigger, not smaller. I do not know how we can stand here, particularly in the face of the threat of international terrorism, and tell the American people we are doing the job they sent us here to do. Because we know that organized crime groups, which are only interested in making money, do not care whether they deal with human beings who want to come here to work, whether they engage in human trafficking, whether they engage in illegal drug transactions, illegal arms transactions, or any one of a number of other activities that are designed to generate money. We know in these organized smuggling activities, many of which originate from Asia and the Middle East, people are literally brought across the ocean to South America, or to Mexico, or Central America, and then they take advantage of our porous southern border and potentially threaten our national security. I hope, and indeed I believe, that most of the people who come to this country across our border outside of our laws are coming here for the same reason they have always come here; and that is, to find work and the ability to support their families because they cannot do so where they live. But we have to acknowledge this porous border we have and our failure to obtain operational security of our borders is a national security threat because the same avenues of entry into the country by which construction workers and others might come are available for exploitation by international terrorists. We have no idea, and no agency of the Federal Government can tell us, whether or not we have sleeper cells of terrorists who have exploited that border to come here. But we know they continue to come, that vulnerability continues to exist, as long as the Federal Government fails to live up to its responsibility to secure our border. This bill, to the great credit of the subcommittee and its chairman, the Senator from New Hampshire, recommends a total of about $6 billion for securing the Nation's borders, including $1.7 billion for border staffing between the ports of entry. Separately, the bill includes $81 million for construction requirements associated with 1,000 new Border Patrol agents. I mentioned the issue of detention beds. There are only 20,000 beds right now, which is woefully inadequate. Given our failure to implement nationwide expedited removal processes for people who come to our country illegally, the Border Patrol and the Federal agencies are simply left with this unworkable and inexcusable system of catch-and-release, which merely exacerbates the problem we have in this country with illegal immigration. This bill moves us in the right direction by funding an additional 2,240 detention beds, with a $77 million increase, bringing the total up to almost 23,000 beds. It is still not enough, but clearly this moves us in the right direction. The Intelligence Reform Act authorizes 8,000 beds per year, and the Iraq war supplemental funded almost 2,000 beds. The bill I alluded to earlier that Senator Kyl and I intend to file shortly calls for an additional 10,000 detention beds to be constructed each year, at an estimated cost of $330 million, which is an increase of 2,000 beds per year over what was authorized in the Intelligence Reform Act. The recent surge of people coming illegally into our country outside of just our immediate neighbor of Mexico demonstrates this catch-and- release policy must be changed. It is only through the commitment of resources, such as being done in this bill, that we are going to get to where we need to be. I am pleased to see the recommendations that are made as to additional resources in this bill, but I remind my colleagues there is still much that needs to be done when it comes to ensuring our security and our safety by enforcement of our laws. I hope at another time to be able to come back and address my colleagues on the details of the bill Senator Kyl and I intend to introduce which is composed of four main provisions. One provision has to do with enhanced border security, which I have already alluded to here. The second provision has to do with interior enforcement. In other words, once people get past the border, then they are simply lost to our Federal law enforcement agencies. We simply, as the Federal Government, do not provide them the additional resources they need in order to be partners in our law enforcement effort when it comes to border security and immigration law enforcement. Last week, I visited with a group of sheriffs in Victoria and Goliad Counties. They are about 200 miles inland. But you may recall, Mr. President, and my colleagues may recall, it was about 2 years ago when 19 immigrants, who had been smuggled illegally into the country, were left to die in a trailer because the human smuggler--a coyote, as they are called in our part of the country--cared nothing about them and left them to die in over 100-degree temperatures inside a cattle trailer. These local law enforcement officials are willing to help and willing to be of assistance, but they want the training and they need additional resources so they can hire the personnel. We must meet our obligations to provide the additional resources they need so we can work as partners with local law enforcement and State law enforcement to enforce the law. So the first component is enhanced border security, and the second component is enhanced interior enforcement. The third component of the bill Senator Kyl and I will file has to do with employer accountability. It may come as a shock to the people of America to know we currently do not have in place an effective way for employers to authoritatively determine whether the person standing in front of them, who wants to be hired, is in fact authorized to work in the United States of America or whether they happen to be an illegal immigrant who cannot legally be hired by American employers. What our bill will do is remedy that deficiency and provide employers with a reliable means to document the fact that indeed this perspective employee is authorized to work in the United States, and to do so in a reliable fashion. We will also at the same time insist that employers, once we give them the tools they need, enforce the law and make sure they document that, in fact, this perspective employee is authorized to work in the United States. The fourth and last component has to do with a temporary worker program. The President talked about this a couple of years ago. I think he is exactly right. But the problem is, it has to be combined with enhanced border security, enhanced interior enforcement, and tools that employers need in order to determine the legal status of the perspective employees that stand in front of them. But we also have to acknowledge the facts: America's economy is strong, and we have a demand for the labor many immigrants provide, but we simply need to provide a legal means for people to work and perform those jobs that American citizens do not want or are not available to do. Then we need to provide a means to return those individuals who come here on a temporary basis and work in the United States under this legal regime, to return them to their home, with the skills and the savings they have acquired working in the United States. Because unless we deal also with the economic aspects of this problem that affects our national security, we will never have any hope of solving it. I will speak more on that later. But I did want to give our colleagues a preview of what is being worked on as a comprehensive solution. And I did want to come to the floor and express my great appreciation to the Senator from New Hampshire, the chairman of the subcommittee, and all of those who have made it possible for us to focus our efforts on enhanced border security, and to explain why I believe it is absolutely critical to the safety and security of the American people that we obtain operational security of our border. It is something we cannot claim now and which, indeed, law enforcement officials of the U.S. Government admit we do not currently have. With that, I yield the floor and suggest the absence of a quorum.

Mr. CORNYN. Mr. President, I would like to take about a minute more of our colleagues' time. I neglected to make some additional brief comments that I would like to make on the space shuttle launch that is occurring today. It was my very first speech on the Senate floor, sadly, when I paid tribute to the astronauts who lost their lives in the Columbia disaster in February of 2003. The thoughts and admiration of the Nation are with the brave astronauts aboard Discovery today as they make their journey into space. It is the first one this Nation has attempted since that terrible tragedy in February 2003. I believe the robust manned space program is critical to both America's proud tradition of exploration and its commercial and military preeminence in space. NASA's missions foster technological and scientific advances and help ensure our national security as well as create jobs for thousands of Texans and thousands of Americans. I believe the mission of NASA, together with the President's vision for future space exploration, will also encourage young people to study math and science and prepare for space-related careers. As so many young children have done in the past, they are inspired by the feats of daring and accomplishment by these brave astronauts who are launching into space again today. These goals are set not just for our current benefit, but also for future generations of leaders and innovators in Texas and across America. I yield the floor and suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. Mr. President, in the debate on the competing amendments, the Collins-Lieberman amendment and the Cornyn-Feinstein amendment, before I get into the body of my remarks, I want to address some criticism that was lodged at the Cornyn-Feinstein amendment. I believe reference was made to the amendment as being ``cobbled together.'' I point out to my colleagues that the amendment of Senator Feinstein and myself was not a cobbled-together proposal. Our work was based on work already done in the House of Representatives and in this body as well. We have also worked with a number of cities and States. In fact, our language is precisely the same, or I should say based on Congressman Chris Cox's legislation, H.R. 1544, which passed in the House 409 to 10, hardly indicative of an amendment that was cobbled together. The question really is, Who should make the decision on how to allocate homeland security dollars? There has been a lot of discussion about how much money should be distributed as a minimum amount and how much should be distributed based on risk. I ask my colleagues to consider in this war on terror who should make the decisions on how best to allocate resources. Should Congress divvy up the pie and decide to distribute money based on how many pieces of pie ought to be cut up, or should those who have access to the intelligence, who know about risk and how best to allocate our resources to address that risk be the ones to make that distribution? In our military and national defense, Congress provides for adequate training and equipment for the Department of Defense and then empowers the Department to allocate the resources where it believes they will be the most effective. I suggest to my colleagues that in the war on terror, the rules should be no different. We should empower the Department of Homeland Security with the similar flexibility to respond and marshal resources as needed. Finally, just by way of preliminary remarks, this morning Senator Feinstein offered a letter for the Record from a number of high-threat cities that support the Cornyn-Feinstein amendment. There have been several additions to the list of cities, including Atlanta, Buffalo, Houston, San Antonio, Seattle, and Toledo. I ask that this updated letter be printed in the Record.

Mr. CORNYN. I rise to join the Senator from California, Mrs. Feinstein, and other distinguished colleagues in urging support for the amendment that we have offered. I am compelled to bring this issue to the Senate's attention because I think it is imperative that we effectively and efficiently protect our most vulnerable assets and population centers, as this amendment is calculated to do. I am grateful for the opportunity to have this debate, and I certainly want to acknowledge the outstanding work that Senator Collins and Senator Lieberman have done on homeland security issues generally. However, the amendment that Senator Feinstein and I offer takes a different approach than the one they have taken. I submit their amendment, as embodied in S. 21, does not achieve the level of risk- based funding necessary to most effectively spend our homeland security dollars. We have said it often on the Senate floor and elsewhere that 9/11 has changed everything. The attacks of that day were unprecedented in our history, and they brought home the need for similarly unprecedented security measures. In an effort to respond quickly to the devastation that day wrought in our country, the Federal Government created a system that worked to raise overall national emergency preparedness to ensure that we would better guard against another such terrorist attack in the future. So we embarked on shoring up our airline, transportation, border, and port security. We worked to protect our critical infrastructure, to protect our cyber security, our agriculture and food supply systems. But taxpayer dollars are not limitless. Nor do any one of us want to live in a lockdown that would be tantamount to a police state. Rather, in this free society in which we live, Congress must work to ensure that every penny allocated for our homeland security efforts must be directed where it will do the most good. It is imperative that we guard the places across our Nation where terrorists may strike and where such strikes could do the most harm to our people, to our Government, and to our economy. I believe this is the most responsible way to prepare for any future terrorist attack. In addition to the important efforts we are undertaking with regard to collecting and analyzing intelligence, we must take the fight on the offensive where the terrorists work, train, and recruit rather than on our homeland. We need to have a system that will protect our most vulnerable population centers and that recognizes the need to protect the critical infrastructure and vital components of our national economy. I am reminded of a tour that I took recently of several Texas seaports. I visited with port directors, industry leaders, and emergency responders in and around the ports of Houston, Beaumont, and Corpus Christi. These kinds of facilities and the communities that surround them have enormous security needs, and the consequences of a successful terrorist attack on any of these facilities would be devastating, not just to these local communities but to the economic engine that runs this whole country. The ripples of a successful attack to any one of these areas would reach well into the interior of our country. We should protect our population centers, but we must also realize that when it comes to protecting our economy and vulnerable critical infrastructure, it is necessary to protect the vital components of these systems and not just the population centers. We must take further steps to secure our agricultural and food production systems and protect the ports that ship products in and out of this country. I believe the amendment offered by Senator Feinstein and myself maximizes this kind of flexibility and this kind of protection. This amendment would require that the Federal Department of Homeland Security funds be allocated to States according to a risk-based assessment. It is vital that we better allocate our limited resources to the vulnerable places in the country that we most need to protect and that these funds be distributed in an efficient and timely manner. Senator Feinstein and I have evaluated the 9/11 Commission's recommendations that call for allocation of money based on vulnerabilities. Our legislation provides for a distribution formula for homeland security grants based upon three main criteria: threat, vulnerability, and consequence. This requires States to quickly pass on Federal funds to where they are most needed. This proposal is inspired by the hard work and examination done on this issue by our colleagues in the House of Representatives and in the Senate. We have also taken input from stakeholders in our respective States and from across the country. It is our hope and intention that by introducing this amendment we can contribute and enrich the public discourse on this critical issue and help move the Nation toward a more rational and effective distribution of our homeland security resources. Key provisions of this amendment provide establishing a first responder grant board consisting of the Department of Homeland Security leadership that will rank and prioritize grant applications based on threat and vulnerability, enabling a region that encompasses more than one State to apply for funds. The money would still pass through the States but would go to the region to better enable coordination and planning. This amendment would provide greater flexibility in using the funds, allowing the State to use them for other hazards consistent with federally established capability standards. And it allows States to retain authority to administer grant programs, but there are penalties for States that do not pass funds to local governments within 45 days. If a State fails to pass the funds through, local governments may petition the Department of Homeland Security directly to receive those funds. In addition to trying to implement a system that was recommended by the 9/11 Commission, Senator Feinstein and I have proposed an amendment that honors the requests of the administration as reflected in the fiscal year 2006 Presidential budget, which calls for awarding funds to meet national preparedness goals and priorities rather than on mandated formulas that bear little relation to need and risk. It is my concern that our colleagues' alternative approach places too high a priority on providing steady streams of Federal assistance to each State to provide for possible terrorist attacks, with not enough regard to a risk-based consideration. With their proposal, States continue to receive a significant minimum amount, and other States with greater populations and population density get an additional amount. The result, though, is that just over half of the remaining funds are distributed based on risk. Can the taxpayers afford to keep up that level of support for every State without regard to risk factors as being the predominant concern? Can we afford providing this level of support to every State at the expense of those communities that are most at risk, regardless of whether they happen to be resident in a large State or a small State? I assert that continuing to spread homeland security funds throughout the Nation without regard to actual risk would be an inefficient approach and would ignore much of what I believe we have learned as part of our efforts to assess our vulnerabilities since the attacks of September 11. As we have recently learned from the tragic events in London, terror still has the ability and the strength to strike. The effectiveness of our continued vigilance and preparedness relies heavily on the efficient spending of our limited homeland security dollars. Let me say in closing, at least for this portion of my remarks, I believe Chairman Gregg, the chairman of the Homeland Security Appropriations Committee, and the entire subcommittee have done a very good job trying to address the concerns I have laid out and that Senator Feinstein and I have addressed, our concerns that these funds be primarily allocated on the basis of risk. But I believe we can do better. I believe we can and should do better, and I believe the optimal formula which provides every State with access to homeland security grant funds but which optimizes the receipt and delivery of those funds based on risk, threat, and consequence is the preferable way to go. I urge my colleagues to support the Feinstein-Cornyn amendment. Exhibit 1 U.S. Department of Homeland Security, Washington, DC, July 12, 2005. U.S. Senate, Washington, DC. Dear Senator: As the Senate prepares to debate the FY 2006 Homeland Security Appropriations Act (H.R. 2360), I write to express my concern regarding amendments that may be offered to change the first responder grant funding formula. The Department welcomes the efforts by Congress to ensure that more homeland security dollars are distributed based on risk. The Department of Homeland Security strongly supports authorizing legislation that would distribute Federal homeland security grant funds based on risk and need (the delta between the level of capabilities possessed by a particular jurisdiction and the level set by the National Preparedness Goal) according to the President's budget request, rather than on static and arbitrary minimums. The Administration strongly believes that Federal homeland security funds should be distributed to our first responders based on risk and need. Since the tragic events of September 11, 2001, we have distributed billions of dollars to our Nation's first responders to prevent and respond to major events. For the Department's primary State assistance program--the State Homeland Security Grant Program--we have complied with Congressional direction to distribute grants according to a formula authorized in the USA PATRIOT Act, which divides nearly half the funds evenly among all states. We have also complied with Congressional direction to allocate the remaining funds based on population. As we know through experience, however, the threat posed by terrorists and others that would do us harm is ever changing. We, therefore, must not continue to base the distribution of limited homeland security funds on such a static, inflexible formula. Instead, the Administration strongly supports a methodology that distributes the greatest amount of funds based on risk and need. This is consistent with the President's budget request for Fiscal Years 2005 and 2006, which supported distributing nearly 90 percent of DHS' homeland security grant programs according to risk and need. We also believe it is important for the Administration and Congress to retain the ability to adjust the balance of state and regional grants each year. Such an approach would still provide a minimum funding level for each state, recognizing that each state has unmet homeland security capabilities. For these reasons, the Administration would oppose amendments that would add new bureaucratic requirements and cap funding for high-threat cities while not providing enough flexibility to distribute over 90 percent of grant funds on the basis of risk. Further, with the development and implementation of the Interim National Preparedness Goal and the accompanying National Planning Guidance, we now have the requisite tools and resources to make more informed decisions on how to focus our finite resources. In coordination with other Federal agencies, DHS has identified the 36 capabilities that are critical to preventing another terrorist attack and, if an attack does occur, to respond and recover in a manner that minimizes loss of life and other damage. We must focus our state and local preparedness efforts on building those capabilities to the right level and in the right places. Funding our first responders based on risk and need gives us the flexibility to ensure our finite resources are allocated in a prioritized and objective manner. The Department would appreciate your support of legislation consistent with these principles, and looks forward to working with you to ensure that communities across the country improve their preparedness to prevent, respond to, and recover from terrorism and other major incidents. Sincerely, Michael Chertoff.

Mr. CORNYN. I yield myself 20 minutes from the time allocated for the proponents of the Feinstein-Cornyn amendment.

Mr. CORNYN. Finally, by way of preliminary remarks, I have in my hand a letter written by the Secretary of the Department of Homeland Security, Michael Chertoff, dated July 12, 2005, where Secretary Chertoff writes to express his concern with regard to amendments that may be offered to change the first responder grant funding formula. Secretary Chertoff says that he welcomes the efforts by Congress to ensure that more homeland security dollars are distributed on the basis of risk, which is precisely what the amendment Senator Feinstein and I have offered does. I ask unanimous consent that this be printed in the Record at the close of my remarks.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that privilege of the floor be granted to Ray Kovachy and Lynden Melmed, detailees from the Department of Homeland Security to the majority staff of the Immigration, Border Security, and Citizenship Subcommittee of the Judiciary Committee during the remainder of the first session of the 109th Congress.