John Cornyn

Mr. CORNYN

Mr. CORNYN. Madam President, this amendment is the gun owner privacy protection amendment. This amendment actually will not change the laws that currently exist, but it will continue a temporary provision that was included in the omnibus appropriations bill that will otherwise expire at the end of this fiscal year. I believe when it comes to protecting the American people, the instant background checks that are required upon the sale of firearms are a very important part of protecting the public. Principally, I believe it is important because it does, on a near instantaneous basis, determine who can legally purchase a firearm and who cannot. Indeed, it is a Federal crime for a convicted felon, or some other person who cannot legally possess a firearm, to purchase one and, conversely, for the retailer to sell it. This provides an instantaneous piece of essential information when it comes to compliance with the law. Of course, we know the primary threat, in terms of public safety, comes from when career criminals illegally use firearms to commit crimes, which they do typically from the time they get up in the morning until the time they go to bed at night. This would provide for the continuation of this privacy protection that was contained in the omnibus appropriations bill. It is specific. What this would require is 24 hours after a sale takes place to a lawful gun owner--that is, there is no reason to limit or otherwise be concerned about the legality of that sale; it is as if the gun were sold to you, me, Senator Reed, or Senator Craig--that it would be required to be destroyed. The purpose of this, of course, is to determine the sale takes place to somebody who can legally purchase the gun and is no threat to the public safety. The purpose of the instant background check is not--I repeat not--for the Government to maintain a permanent record of who owns firearms. That invasion of personal privacy is not justified by any sound public policy of which I am aware, and I think it would be altogether appropriate for those records of instant background checks to lawful purchasers be destroyed, as is currently the law, after no more than 24 hours. I emphasize this does not change the requirement that dealers must keep records of all firearms sales. Under current law, these records must be retained for up to 20 years to help trace firearms purchases, and dealers must still comply with all Bureau of Alcohol, Tobacco, Firearms and Explosives trace requests in the course of a criminal investigation. Finally, for any instant background check that reveals a potential sale to an unlawful purchaser, those records would be retained, as they are under current law, and they would not be subject to destruction after 24 hours. I submit to my colleagues this would be altogether an appropriate way of protecting the privacy of gun owners of an important corollary to the instant background checks which I believe have protected the American people from felons and others who cannot legally purchase or even possess firearms, which is the policy of the current law. I yield back the remaining time.

Mr. CORNYN. Madam President, I send an amendment to the desk.

Mr. CORNYN

Mr. CORNYN. Mr. President, I come to the Chamber in a hurry because it has come to my attention that this amendment, which is perhaps in a technical sense not germane to the main bill in the Senate--but I understand there is an agreement that it could be considered and would not be out of order--but my concern is this: The Voting Rights Act of 1965 was an important landmark in the Nation's history. It was passed by the Congress in an attempt to make sure that no person, regardless of race, regardless of color, was denied their right, their fundamental right to vote. This was long overdue, very important, and certainly a result to which we all continue to aspire. Perhaps Members of the Senate who have, like me, not had a chance to study this amendment in great detail, or perhaps what the ramifications of this amendment are, might be interested to know a few facts; that is, that the Voting Rights Act does not apply to all the States in the Nation. In other words, we are being asked to extend the Voting Rights Act only as it applies to a handful of primarily Southern States. In 1965, perhaps it made sense to apply the Voting Rights Act to just a handful of States that historically and, yes, tragically, had a history of denying minorities their rights to be American citizens and enjoy the franchise unimpeded by those who would deny them that right. But this is not 1965. This is the year 2004. If, indeed, this presumption, in essence, that says in order to change the way in which you conduct your elections, before you redistrict your State and electoral districts, you must seek permission from the Department of Justice, if indeed, that is still good policy for the States that are covered by the Voting Rights Act, I submit it is good policy for the Nation as a whole. I doubt in all seriousness that many Members of this body understand what they are being asked to do, which is to extend this act only to a handful of States. As I say, if it is good policy, I believe it should be extended to the entire Nation. Obviously, we have come a long way in this country since 1965. Some may argue that some States should have a presumption of guilt while others should have a presumption of innocence. But, indeed, I believe there ought to be a uniform policy that applies to the entire Nation when we are talking about something as important as voting rights and when we are talking about something as important as protecting the voting rights of all Americans, including minorities who have, in fact, suffered discrimination in the past. I raise the question for my colleagues, those who are listening, to ask whether we truly understand what the implications are of this amendment and how it would affect the entire country, and how in practice, if I understand the amendment correctly, it would only apply to a handful of States. There is an agreement under which second-degree amendments are out of order, or I would offer an amendment to apply to the entire Nation, if that were permitted. But under this arrangement, under this agreement, I can merely ask the question for my colleagues to ponder if this policy should apply nationwide and not just to a handful of States, including my State of Texas. I yield back any remaining time to the Senator from Idaho.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to say a few words on our broken civil justice system. Today we are debating yet another common sense reform proposal, the Protection of Lawful Commerce in Arms Act. Despite many recent opportunities, Congress has been unable to enact meaningful tort reform, largely because of strong resistance by trial lawyers and their allies in this chamber. Just yesterday we failed to reach cloture on medical liability reform that would protect our mothers and their children. We have been blocked from enacting broader medical liability reform. And we saw this drama played out last year with the Senate's failure--by one vote--to end a filibuster of the Class Action Fairness Act and give the bill a vote on the floor. Despite the fact that a bipartisan majority stands ready to pass that bill, the obstructionist opposition prevents us from acting. I believe our civil justice system is badly broken. It serves the interests of the few at the expense of the many. It has become almost entirely directed not at dealing out justice, but at finding as many scapegoats as possible, the wealthier the better. It used to be that if you slipped and fell on a sidewalk, you picked yourself up and kept on walking. But nowadays, far too many trial lawyers continue to feed the idea that instead of getting up again, you ought to sue the maker of the sidewalk for making it too hard, the maker of your shoes for not putting enough ridges on your soles, and everyone in your near vicinity for not rushing to catch you as you fell. After all, there is money to be made. The current system rewards lawyers and short-changes the real victims. There is no doubt that this system of over-litigation cannot last without more negative results. And without reform, I fear the entire system will collapse under its own weight. Today, the Senate has the opportunity to take a step in the right direction on this problem, by passing the Protection of Lawful Commerce in Arms Act. This bill is simple: it provides that lawsuits may not be brought against lawful manufacturers and sellers of firearms or ammunition if the suits are based on criminal or unlawful use of the product by someone else--when a criminal, not the manufacturer, commits a crime. Such lawsuits are not intended to find real fault, but to play on the emotions of a jury and drive the gun industry out of business, holding legitimate, law-abiding manufacturers and dealers liable for the intentional and criminal acts of others. This bill reinforces years of legal precedent--that individuals and businesses are responsible for the harm they case, not for the actions of third parties over whom they have no control. Many Judges across the Nation recognize the ridiculous nature of these suits. The Louisiana Supreme Court struck down New Orleans' right to bring such a suit in the face of State law forbidding it, and said ``this lawsuit constitutes an indirect attempt to regulate the lawful design, manufacture, marketing and sale of firearms.'' In dismissing New York State's case last year, a New York appellate court observed ``the plain fact that courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micro-manage the manufacturing, marketing, distribution and sale of handguns.'' Thankfully, many States are acting: 33 States have enacted some form of legislation to prevent junk lawsuits against the firearms industry based on the criminal behavior of others. We must follow the lead of the majority of States, and pass this common sense measure. Don't allow any illusions about the intentions of the people involved in these suits. At an American Bar Association symposium in 1999, one of the plaintiffs' attorneys for the antigun lawsuits explained that the attorneys had read the Dun & Bradstreet reports on the firearms companies, estimated how much the companies could spend defending themselves against litigation, and then filed so many cases in so many jurisdictions that the gun companies would not be able to spend the money to see the cases through to a verdict. The irresponsible tort community is simply looking for another law-abiding business to prey on. And even if all the gun companies in America were put together, they would not constitute a single Fortune 500 company--so the gun companies are much more vulnerable to abusive litigation than deep-pocketed giants such as the New York Times. The real way to stop gun crime in America is simple: those who abuse the constitutional right to keep and bear arms by using firearms to commit crimes must be aggressively prosecuted and punished. When I was Attorney General of Texas, I joined with then-Governor Bush to launch a program we called Texas Exile. That program provided local prosecutors with the funds to get more than 2,000 guns off the streets and to issue more than 1,500 indictments for gun crimes, resulting in almost 1,200 convictions in its first 3 years of existence alone. And when President Bush came to Washington, he built upon our success in Texas by making Project Safe Neighborhoods one of his top priorities. Project Safe Neighborhoods expands on existing programs that target gun crimes in each State. It is a nationwide commitment to reduce gun crime in America by networking these existing local programs and providing those programs with the additional tools necessary to be successful. The Bush administration has committed more than $900 million to this effort over three years, using funding to hire new Federal and State prosecutors, support investigators, providing training, distribute gun lock safety kits, deter juvenile gun crime, and develop and promote community outreach efforts as well as to support other gun violence reduction strategies. And Texas has seen great success with the integration of Project Safe Neighborhoods with the existing Texas Exile infrastructure. These are the kinds of steps that get real results, not ill- intentioned frivolous lawsuits. I question the integrity of any system that would reward such abject agreed. We need to work in this body to fix our broken civil justice system, and this bill is a good place to start. I am somewhat bemused by the arguments I have already heard this morning on this motion to invoke cloture. In fact, we want to have a debate. Those who oppose even having a debate are, I guess, not going to allow it to happen. I hope they are not successful in blocking debate. It is healthy to have a debate. I am bemused by the suggestion that this is a narrow bill directed toward special interests. Yesterday, we had a narrow bill to protect the special interests known as pregnant women and children. However, the trial lawyers prevailed and we were unable to get that commonsense tort reform measure on the floor for debate. I submit that the suggestion is misguided that this is a special interest piece of legislation. This is in the public interest. I suggest the worst thing about the arguments we hear from the other side of this debate is they are misdirected. In other words, they contend this bill would immunize lawsuits against gun manufacturers for what is a lawful activity. The fact is, there is a shrine in our Constitution, the right of the people to keep and bear arms. What they are trying to do would have the effect of impeding and impairing that constitutional right because, as Senator Craig has pointed out, there have been many lawsuits filed against gun manufacturers for the very fact of making a lawful product, none of which, so far as I understand, has been successful but which are destroying these companies which are in the business of manufacturing a lawful product, destroying jobs, and impairing ultimately the constitutional right of citizens, people like you, me, and others in this room from owning firearms to protect our homes and our property, our families for use in sporting events, for hunting, and other lawful and decent activity. The focus of the opponents of this bill is totally misguided. What we ought to focus on is the criminals who use firearms illegally to commit crimes. In fact, I have had a little experience in this area as attorney general of Texas. With the cooperation of then-Governor Bush, we created a program in Texas called Texas Exile. I wish we could claim we originated the idea but we borrowed the idea from Richmond, VA, something called Project Exile, which was a cooperative effort of local, State, and Federal law enforcement officials to target criminals who use guns to commit crimes and convicted felons who could not even legally own a firearm. The great thing about that was, No. 1, it was so successful; No. 2, it was not a wedge issue which, clearly, there is an attempt to inject wedge politics in this debate. But it was an issue which everyone could agree: The NRA, the gun control folks, everyone came together and said, yes, that is what we ought to do. Let's focus on the criminals who misuse this product. Indeed, in 2001, Texas led the Nation in the number of criminal defendants who were indicted for weapons violations in Federal court. In 2000, there were 757 in that year alone, which was almost double the number of indictments in 1999. This amount was greater than the number of defendants indicted on similar charges in the States of New York and California combined. How were we able to use the existing criminal law in a way that made our streets and our communities and our States safer? We simply enlisted the help of local law enforcement to work with Federal law enforcement authorities so when a criminal was caught illegally possessing a firearm--illegal because a felon cannot legally possess a firearm--or someone under a protective order--it is a Federal offense to carry or possess a firearm when you are under a protective order--or someone who simply used a gun to commit a bank robbery or any other offense, we focused on the gun possession portion of that and were successful in leading the Nation in the number of prosecutions. That sends a very powerful message that if you carry a gun illegally or if you use a gun illegally to commit a crime, then we are coming after you with everything that the law allows. It is a powerful deterrent to the sort of illegal conduct that causes the harm that the opponents of the bill--and I grant their good faith; I think they believe in good faith that what they are proposing is a path to a good result, a sound result--that is reducing injuries, reducing death, but it is misguided. All this does is encourage lawsuits against a manufacturer of a legal product when someone criminally misuses that product to cause another person harm. As the Senator from Idaho has noted, this is death by 1,000 cuts or death by 1,000 lawsuits, so to speak, because anytime a gun manufacturer is sued, even with a frivolous lawsuit, they have to hire a lawyer, they have to defend that case at greater expense which threatens their economic viability which in turn threatens the jobs of the people who work there in that company. I wish we could have a broader debate on commonsense tort reform generally, but we have seen what happens when we try to raise these issues. We could not even get cloture on a class action reform bill. We have not been able to bring up asbestos reform which is damaging a lot of good job providers in this country and not benefiting the people who are truly sick but only the lawsuit industry which benefits from churning the cases without really benefiting the people who need compensation. We found in almost every instance--medical liability, class action reform, or asbestos reform--we are simply not able to even get a debate. We cannot even get cloture because we cannot find 60 people in the Senate who are willing to stand up and say this is a serious problem. It is raising the costs of health care. It is bankrupting companies in the case of asbestos. It is an abuse of the class action system in the case of class action reform where lawyers get millions and consumers get a coupon. So the strategy has been, and it is a good strategy, to try to identify certain types of cases. Yesterday it was obstetrical liability cases which have threatened the ability of pregnant women to find doctors to simply deliver their babies. I recounted in my own State in 154 different counties a woman cannot even find a doctor to deliver her baby, an obstetrician, because people are leaving the practice. It is pricing out of reach health care liability insurance, putting people out of business, hospitals out of business, and we are simply seeing the tail wag the dog in each of these areas. The tail seems to be the special interest groups that like the status quo, which is a broken civil justice system that does not serve justice. I commend the Senator from Idaho for bringing up this bill which admittedly is a narrow bill. Boy, I wish we could have a broader debate on tort reform, commonsense tort reform generally. When we talk about what causes job loss in this country, it is the regulation by litigation, it is the tort tax that imposes additional costs on consumers and discourages innovation and entrepreneurs in this country. We are not talking about locking the courthouse door and denying someone access to justice. I believe strongly we must retain meaningful access to justice for anyone who is harmed by the wrongful conduct of any other person. But the system right now benefits the few at the expense of the many in ways that I doubt consumers really understand because it adds costs to their products, and it makes it harder for entrepreneurs and small businesses to open their doors and to hire people to allow them to provide for their families. So here we are, rather than taking on a broader tort reform bill, we are left with a narrow bill. I congratulate the Senator from Idaho for it. I believe we should protect manufacturers of lawful products whose products are misused by criminals. Let's focus on the criminals, not the people who are providing jobs and are producing a lawful product. With that, I yield back any remaining time I have to the Senator from Idaho.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent for Adam Aston from my office be granted privileges of the floor during the course of this debate.

Mr. CORNYN

Mr. CORNYN. Mr. President, in 1996, the Congress voted overwhelmingly to pass the Defense of Marriage Act. This is a bipartisan bill, where Members of both parties in both Houses voted overwhelmingly to define marriage as an institution in traditional terms, between a man and a woman. This, as you may recall, was in part a response at the time to the Vermont decision implementing civil unions. This body, just like approximately 38 States, has now passed defense of marriage acts defining marriage in traditional terms. Last September, the Senate Judiciary Committee's subcommittee on the Constitution held a hearing at which we elicited testimony on this issue: Is the Defense of Marriage Act in jeopardy? The reason we had that hearing is because the U.S. Supreme Court, last year, made some pretty significant decisions, one of which was Lawrence v. Texas, which, if the rationale was going to be followed through, would seem to place the Defense of Marriage Act in jeopardy, saying that that somehow violated the Constitution, thus opening the way to marriage between same-sex couples. At the time we had people, as you might imagine, as in every hearing, some of whom said, oh, no, the Defense of Marriage Act will stand as long as it is the will of Congress and the will of the American people. Others said more presciently, as it turns out, that if there are judges who want to use the decision of the U.S. Supreme Court in Lawrence v. Texas, and to extend that, indeed, yes, the Defense of Marriage Act could be in jeopardy--indeed, the very definition of marriage between a man and a woman that is part of the Federal law and, as I said, I believe some 38 States. Well, of course, the day that many thought would come only remotely in the future came much more quickly, when the Massachusetts Supreme Court decided that, indeed, traditional marriage violated the Massachusetts Constitution. Now, some might say, well, since it was a matter of State constitution law, it is limited only to the State of Massachusetts. But a closer reading of that decision reveals that one of the bases upon which the Massachusetts Supreme Court decided that traditional marriage violated the Massachusetts Constitution was a U.S. Supreme Court decision in Lawrence v. Texas, interpreting the U.S. Constitution. So as it turns out, there is a much closer relationship between the State court constitutional decision and a decision under the Federal Constitution. Well, once the Massachusetts Supreme Court did, indeed, hold that marriage was no longer limited to men and women in Massachusetts, some said this was just a State matter and there was no reason for the Federal Government to get involved, and there was no reason for other States to be concerned. Yet over the last week or so, we have seen that individuals have moved--I saw one report in the Washington Post of people leaving Maryland and going to San Francisco and getting married--in defiance of State law, I might add--where the city of San Francisco, the mayor, and others, would issue marriage licenses, and then people would return to places such as Maryland. Or people would show up in San Francisco and, because of an act of civil disobedience by the mayor and municipal officials there, seek to get married, even though California law is consistent with Federal law and the law of other States defining marriage in traditional terms. Indeed, we see in New Mexico and in Chicago, where the mayor said if same-sex couples sought to get married, he saw no reason not to issue them marriage licenses. Indeed, in Nebraska, a lawsuit in Federal Court is being defended by the attorney general of Nebraska under the Federal Constitution seeking to define marriage in not untraditional terms, to allow it not to be limited to just traditional marriage. So this is not an issue that has been raised by Members of Congress initially. This is a matter that has been injected into the public arena by activist judges who have decided to radically redefine the institution of marriage in Massachusetts but the reverberations of which have resounded all across this Nation. It is in that light I believe we in this body have a responsibility to ask what are the implications of the Massachusetts decision in this brush fire across the country where local officials and others are in acts of civil disobedience defying State law to issue marriage licenses and what are the ramifications of the Massachusetts decision in terms of the continued viability of the Defense of Marriage Act at the Federal level. Next Wednesday morning, March 3, under the auspices of the Senate Judiciary Committee, Chairman Hatch has graciously agreed to allow the holding of a subcommittee hearing of the Constitution Subcommittee, which I chair, to have witnesses talk about what the implications are in terms of national policy, in terms of the institution of marriage, which I believe is important. Indeed, if Congress is to be believed, on a bipartisan, overwhelming basis Congress has said it is important and, indeed, that bill itself was signed by President Clinton. We cannot simply stand idly by, in my opinion, and let activist judges radically redefine the institution of marriage when it stands in stark relief and defiance of the will of the American people and certainly of the decision this body has made in terms of passing the Defense of Marriage Act. So we are going to have a hearing next Wednesday on that issue. I suspect others will come to the same conclusion I have, and that is the Constitution of the United States will be amended eventually; that this decision in Massachusetts will spread to Federal courts where others will cite this Massachusetts decision as precedent for an interpretation of the Federal Constitution that will strike down the definition of traditional marriage. I think that is important for a couple of reasons. I know there are people who are reluctant to even talk about this issue because they don't want to be painted or cast as intolerant or haters or bashers or any other term one might think of. Indeed, I think it is important to point out you can believe in the essential dignity and worth of every human being and still believe the institution of marriage is important to our civilization, to families, to providing the most stable means of establishing family life, but also to the benefit of children. The best interest of children requires us to do everything we can to encourage stable family life and, indeed, in the course of history, not just in this Nation's history, but throughout human history, I believe it is irrefutable that traditional marriage between a man and a woman is the firmest and most stable basis to establish family life. Indeed, that is the relationship, that is the basic social unit under which children thrive and are at reduced risk. When I was attorney general of Texas for 4 years, I had the responsibility to collect child support for some 1.2 million children. These were children who were from single-parent families. They were either born without their parents ever marrying or their parents married and then divorced and they, of course, were in the custody of one parent and the other parent would typically be ordered to pay child support. I became very much convinced, not just because of the social science, but because of what I saw as a person responsible for collecting that child support for these 1.2 million children, that children are at less risk when they have two loving parents who care about them and support them emotionally and financially; that certainly traditional families are the optimal situation in terms of children doing well and becoming productive citizens. At that time, of course, it had nothing to do with this new and revolutionary constitutional theory that has been thrust upon us by the Massachusetts Supreme Court that seems to be picking up around the country which I think we need to address, but really we need to, as a nation, reaffirm our commitment to doing what is in the best interest of our children. Indeed, it is irrefutable that intact families, traditional families--mom and dad providing role models for children they can then use when they grow up to then become not only productive citizens but moms and dads themselves and raise their own children--is something the Federal Government ought to be encouraging. We shouldn't be agnostic about something that is so fundamentally important to the well-being of this country and to our future. We should not stand idly by and see the constitution of one State then spread to another State and, indeed, then to the courts where the Federal Constitution is called into question that would radically redefine this basic social institution. While I know there are those who are hesitant to talk about this issue because, as I say, no one wants to be cast as intolerant of other relationships--indeed, I think you can say and recognize there are people in loving relationships outside of marriage. But when they want to say marriage is what we redefine it to be, and there is no difference between a man and a woman and a same-sex marriage, I think, first of all, that tends to trivialize what we all have come to recognize as an institution that is a basic social good in this country. But it also is game playing. There are others who say we want to have all the legal benefits of marriage, but maybe we won't call it marriage, which to me is game playing. I am a little skeptical of that, especially when, as a lawyer, I know if two people of the same sex want to make contractual or other arrangements between themselves so one can inherit from the other, so one can act on the other's behalf by use of a power of attorney, either to make medical decisions, if one is disabled, or financial decisions if the circumstances arise, there is virtually an unlimited opportunity for same-sex partners to order their relationship from a legal standpoint in a way that satisfies virtually all the reasons I have heard articulated for same-sex marriage. It is important we have a hearing. It is important for this body to defend, if necessary, its prerogative under the Defense of Marriage Act to do what we believe and I believe the overwhelming number of American people believe is in the best interest of families and children and not leave this to activist judges who consider themselves to be superlegislators, who consider their prerogative to take a social or political or some other agenda and essentially dictate that to the American people from the bench. We know Federal judges and many State judges serve for a lifetime. There is no way for the American people, short of impeachment, to remove a Federal judge or a judge who is appointed for a lifetime who acts in such a radical fashion, so inconsistent with our norms and traditions, with our traditional understanding of the separation of powers, And yet in a way that would so radically transform this fundamental social unit that is so important to who we are as people and as families, and one that is the best and most optimal arrangement found yet in the history of mankind to have and raise children so that they will be productive citizens. I have come to the same reluctant position as I know the President announced he has today and believe that indeed the Constitution will be amended. The question is whether we the people are going to amend it by using article V of the Constitution, which creates an admittedly difficult process but one which is important to make sure that it is not done flippantly, too fast or without adequate deliberation. It is time to consider whether we ought to invoke that provision the Framers provided in article V of the Constitution to say: Not so fast, judge. We the people ultimately have the power within our hands to decide how this institution will be defined and we think there is a positive social good to define marriage in traditional terms. So I believe it is important, as the President has concluded in his announcement today, that we consider a constitutional amendment. There are some who say our Constitution is a sacred document. Indeed, I think our Constitution is very important and even an inspired document, but I disagree with those who say the Constitution is sacrosanct to the extent that they say the Constitution should never be amended. Indeed, if the Founding Fathers believed the Constitution should never be amended because it was a sacred document, then they would not have provided a means within that document itself for deliberation, hearings, decisions, and ultimately a vote of this body and of the other body by two-thirds and then three-quarters of the States voting for ratification, which is the process by which that Constitution can be amended. In my lifetime, I never imagined I would be standing on the Senate floor having to say I believe in the traditional institution of marriage between a man and a woman. I just thought, of all the other issues we would be debating in this body, whether they are matters of war and peace, job creation, access to health care, education, all of the important issues that affect the people in this country, the last issue I ever thought we would have to address would be a redefinition of marriage, but I submit that is where we are. Reluctantly, as many of us come to this discussion--and I think if one looks at the polls we have all followed in the news media in the last few weeks since this issue has been splashed across our TV screens, our newspapers, the Internet, and elsewhere, one sees that the American people are getting the sense that something has gone terribly wrong, that somehow their values and their traditions are being disrespected in a way that needs correction. As more and more people find out about the way this came about, through a sort of--well, I would call it judicial lawlessness; in other words, judges who are not interpreting the law but who are taking it upon themselves to redefine what the Constitution means and indeed redefine this basic social unit in our civilization, I think they are going to be pretty upset and they are going to expect us to take up a discussion of this constitutional amendment in a reasonable, deliberate, civil sort of fashion. I hope we can rise to that challenge. Indeed, if one looks at the vote in the Defense of Marriage Act, one sees there is an overwhelming bipartisan group in this body and in the other body who believe that the institution of marriage is a positive social good and worthy of preservation. I hope we will not be afraid to talk about it in a frank and open way, to listen to the concerns of those who maybe are not yet convinced, to take those into account and then, as a Senate, we can discharge our responsibility under article V of the Constitution to begin the process of allowing the American people to vote on the definition of marriage. We know who is voting now and it is a handful of judges and municipal officials who are encouraging civil disobedience. They are issuing marriage licenses in violation of State law, for example, in California and elsewhere. Ultimately, if we are going to preserve something that I think is infinitely worthy of preservation--and that is government of the people, by the people and for the people--this is something we are going to have to do. This is a responsibility we are going to have to accept and we are going to have to risk the possibility that some may mischaracterize what we are trying to do as being disrespectful of other people. That is not what this is about. I would condemn rhetoric or language which would appear to be disrespectful of other people, but that does not mean at the same time that I do not believe the institution of marriage is worthy of protection. I look forward to the hearing we are going to have in the Constitution Subcommittee on March 3, I believe at 10 in the morning. I anticipate that perhaps later in the month, maybe the week after we come back from the March recess, we will have another hearing. Senator Hatch, the chairman of the Judiciary Committee, of course, reserves the right to make that final decision. At that time, we will begin to take up language, which we might then consider first in committee but then on this floor, that would preserve the definition of marriage for the American people and not allow ourselves to be dictated to by judges who are pursuing some other agenda, one that the overwhelming number of American people disagree with strenuously. I yield the floor and I suggest the absence of a quorum.

Mr. CORNYN

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

Mr. CORNYN. Will the Senator yield for a further question?

Mr. CORNYN. The Senator from Illinois makes an important point, and that is there will invariably be one or two, perhaps, cases, or a handful of cases, or an example you can point to where a $250,000 limit on noneconomic damages might seem to be too low. But would the Senator agree that what we are trying to do is use a rather indirect means to try to accomplish a greater good for the patients who are denied access to health care? For example, in 154 of the 254 counties in my State, a woman cannot find a baby doctor to deliver her baby because of the cost of malpractice insurance. Many obstetricians simply decide to give up and retire or to move someplace else where malpractice liability rates are lower. While the Senator no doubt can find an example where the amount is lower than a jury perhaps might award, why shouldn't we take a step in the direction of bringing some predictability and thus bringing some reasonableness in reducing the rates for liability insurance so people can have access to doctors where they live?

Mr. CORNYN. If the Senator will yield for a final question.

Mr. CORNYN. In my own State of Texas, that passed a constitutional amendment along with implementing legislation to reduce the cost of medical liability insurance, we have seen reductions offered by medical liability carriers of 12 percent in one case and projected to be as much as a 19 percent reduction in medical liability insurance costs. While I certainly would agree with the Senator from Illinois that reduction of errors is an important goal, would he not find a reduction of medical liability insurance rates of 12 to 19 percent one way to reduce the cost of health insurance and health care generally, in a way that would benefit the public generally?

Mr. CORNYN. I appreciate the spirit in which the comments are offered by the Senator from Illinois, because this is a subject where we do need to have a rational debate. Unfortunately, because we cannot get 60 votes to allow the floor debate and actually vote, we are engaging in a hypothetical exercise. Wouldn't the Senator from Illinois deem it important for this body to have a realistic, rational debate and ultimately vote to see what the will of this body and the people we represent is when it comes to trying to get some handle on reducing the costs of liability insurance so more mothers can have access to obstetricians and more people can have access to health insurance by reducing health insurance costs?

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that Tiffany Kebodeaux, a member of my staff who does not currently have floor privileges, be given floor privileges for the duration of my remarks.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent to be added as a cosponsor of the Healthy Mothers and Healthy Babies Access to Care Act of 2003.

Mr. CORNYN. Mr. President, I am happy the majority leader has seen fit to bring this important issue to the floor. I will have some specific comments about the bill in just a moment. I believe our civil justice system is badly broken insofar as it serves the interests of the few at the expense of the many. What I mean by that is our system of resolving civil disputes, whether they be medical malpractice lawsuits, or automobile accident cases, or any other kind of ordinary bread-and-butter lawsuit you see decided in courthouses across this country, in which citizens volunteer to give up a substantial amount of their time, that this process takes too long and it is too expensive to serve the interests of justice. It discourages those who have meritorious claims from even bringing those claims because they don't want to endure the time or expense. It too often benefits the very few at the expense of the rest of the public. Particularly, the benefit is to a handful of lawyers. I must say, I am proud to be a lawyer. I practiced law a long time before I was a judge presiding over a trial court in San Antonio, TX, for 6 years and serving on the Texas Supreme Court for 7 years. I am proud to be a lawyer. The problem is we have a handful of lawyers who are literally the tail wagging the dog on this and other reform issues that are so important to restoring public confidence in our civil justice system and making sure that rather than serving the interests of the few, the interests of the general public are served by the way in which we handle disputes like medical liability cases and other tort litigation. We have in this country what some have called the ``sporting theory'' of justice. We have an adversary system, where each side retains a champion and we go in and we have a clash between these adversaries in court, and the theory is--and in many respects it works well--the impartial jury decides the facts and the judge applies the law, and then we have a judgment in the dispute. It is a way of resolving our disputes without violence, in a way that seems to satisfy the public generally. But the problem is in modern-day litigation--and nowhere is this more prevalent than in the area of medical liability litigation-- the interest of the person who is harmed is not truly paramount in consideration in terms of the way the system works. In fact, many times, it is the patient who may be injured or harmed who receives actually less money than the lawyer who brings the lawsuit. As you know, many of these lawsuits are handled on a contingency fee basis. In other words, the lawyer who brings the lawsuit will represent a client in court--a patient in this instance--and say, well, if I represent you, then I will take 50 percent of everything you recover. It won't cost you a penny if I don't recover anything, but if I do, I will recover 50 cents off the top of every dollar you recover. Of course, there are other expenses associated with this kind of lawsuit, such as the hiring of expert witnesses, court costs, and the like. Too often, what happens in these cases is the lawyer ends up the one walking out of the courtroom with the most money, not the injured party, not the person for whose benefit a lawsuit is brought. To me, that simply turns our civil justice system on its ear. It calls into question whether this is a system of resolving disputes in a way that serves the interests of the public; or does it, as it appears too often, serve the interests of a handful of personal injury lawyers who make their living bringing this kind of lawsuit. There is another aspect of this as well. In our civil justice system, we know almost anybody can file a lawsuit for virtually anything. If you can get a lawyer to file a lawsuit, then you can sue someone for a small fee, whereby the clerk will serve the papers on the defendant, and typically the defendant will have to hire a lawyer to represent them. At this point, there is no determination made that there is any merit to that lawsuit. Well, what happens too often is the very nature of being able to file that lawsuit without any determination if there is any merit at all leads to a form of legalized extortion, because the person who has been sued has no recourse but to hire someone to defend them. Even if they end up winning the lawsuit, even if the lawsuit filed is dismissed ultimately, there is no recourse for that defendant who has been wrongfully sued or sued in a frivolous lawsuit. This, too, adds to the expense of ordinary litigation and makes very little sense to me or, I think, to a lot of people. I think the more the public understands who it is who benefits from the current state of our civil justice system, our tort system, our medical liability system, the more the people will understand it is not them, not the injured patients, not those whom the system is designed to benefit; it is for those who filed the lawsuits, the lawyers who represent those folks. Unfortunately, because of the costs associated with just the expense of litigation, we know too often those persons who are sued will make what is known in the profession as a nuisance settlement. In other words, they will say, well, it is going to cost me tens of thousands of dollars just to defend myself against a frivolous lawsuit. Rather than defend myself and win the lawsuit, but end up $100,000 out of pocket, or whatever the cost may be, I will pay you $5,000 or $10,000 to simply have it go away. Unfortunately, you can see why the financial incentives tend to favor nuisance settlements of lawsuits which, unfortunately, have the unintended impact of encouraging further litigation and other lawsuits even when they are frivolous. We need to do something about it. I join the senior Senator from New Hampshire who said we need some meaningful medical liability reform. We need to make sure that it is not the lawyers who bring these lawsuits who benefit but, indeed, the public. Nowhere is this a greater concern than when it comes to access to health care and medical liability lawsuits. Last fall, I spoke in this Chamber, along with others, in support of broad-based medical liability reform. Today I rise to speak in favor of this narrow, but very important, bill that deals with women's access to physicians who will deliver their babies, access which has been damaged terribly by the current dysfunctional way in which we resolve disputes about medical liability. The change we argued for last fall and this change as well would drastically reduce the cost of health care by reducing frivolous claims and eliminating the need to pay extraordinary amounts of money for medical liability insurance. Unfortunately, we failed to pass meaningful reform. We have heard--I heard the Senator from Vermont mention this a moment ago--that the real culprit in all this is the insurance companies; it is not the lawyers who benefit disproportionately from the status quo; we know it is not the patients who do not benefit very often; and we know people who seek access to health care are denied access to that health care because of this dysfunctional system. The Senator said it is the insurance companies. I take second chair to no one in saying that if, in fact, he can point to abuses perpetrated by insurance companies or anyone else, we certainly ought to take up that issue. But I believe the motivation is really one to create a diversionary tactic, a smokescreen, if you will, to say it is not the lawyers, it is not us, Heaven forbid, it is not the women who want their babies delivered, it is the insurance companies. We have heard this time and time again when, in fact, I believe the empirical evidence that has been produced in my State and other States shows that, in the end, insurance companies, which are typically subject to strict State regulations, are having to play a lottery game, a sort of game of roulette. They don't know what the rules are because they change with every million-dollar, multimillion- dollar, tens-of-million-dollar judgments in lawsuits. So they charge an insurance premium, just like we pay for homeowners insurance or renter's insurance or any other kind of insurance, and ultimately that cost is passed on to the consumer. In this case, the consumer of that insurance, the one who pays that premium, is the physician who wants to practice medicine, who wants to dedicate their life to the interests of people who are sick and who need their help--in this case, mothers who need access to good baby doctors so they know the baby they have carried for all these months will be delivered safely and will be healthy. The good news I guess, if we can find any good news in this sordid situation in which we find ourselves, where these lawyers who benefit from the status quo are the ones who are calling out the tune and having others dance to the tune they have called out, is that some of the States are stepping up; they are not waiting on a solution from Washington, DC, and that is a good thing. As someone who believes that local government and State government tends to be more responsive because it is closer to the people they serve, than for the Federal Government, I think it is good that the States are stepping up, but this is not strictly a State problem. When we consider how much money we appropriate each year--we just passed a $400 billion Medicare bill which is now estimated to cost more than $100 billion more than that over 10 years--when you think about Medicare, when you think about Medicaid, when you think about S-CHIPS, the Federal taxpayer--in other words, everyone who earns a wage in the United States--subsidizes this broken medical liability system because much of the costs associated with health care today are due to either counting in what this rapidly increasing cost is in terms of determining what a fee for a service is or otherwise having to suffer the consequences when doctors simply pull up stakes and move out of their State, leaving mothers, in this case, who want a doctor to deliver their baby in the lurch. In my own State, out of 254 counties, there are 154 counties in which a pregnant woman cannot find a specialist to deliver her baby. A large part of that cause is because of the cost of medical liability insurance which is simply priced out of the market, and physicians say I am going to retire early rather than subject my family and myself to putting at risk everything I have worked a lifetime to save and achieve or people who just simply have gotten tired of being in the crosshairs their whole life by a system that serves the interests of the few at the expense of the many. I think Senator Gregg had a chart that showed what I mentioned a moment ago behind, that out of the 254 counties in Texas, 154 have no obstetrician/gynecologist, no specialist in delivering babies. The yellow depicts those pregnant woman would have to drive to one of the white counties simply to find someone who will deliver her baby, and sometimes they don't make it. Sometimes the baby is damaged because complications ensue because there is no doctor close by who is qualified to deliver that baby because of this broken medical liability system. I think it was Senator Frist or perhaps Senator Gregg had a chart that showed a chart of 19 States where there is a medical liability crisis because of this civil justice system, a system that is supposed to be a just system but is truly an unjust system. It is simply broken. Each of these red States, including, we can see, the State of Texas, is listed as a State in crisis. Nineteen of them are where patients are losing access to baby doctors due to skyrocketing medical liability insurance premiums and where pregnant women are forced to drive long distances just to find a physician to deliver their baby. As I mentioned a moment ago, the good news, if there is any good news in all this, is that the States are not necessarily waiting on the Federal Government. In my own State, just this last year, the voters passed a constitutional amendment, proposition 12, which would provide some of the relief that is sought to be delivered to the entire Nation in this particular bill. We have already seen some very beneficial effects of this constitutional amendment and the legislation that implements it because we have seen medical liability insurance companies offer to reduce their premiums by 12 percent or 19 percent in another case. So we are beginning to see some real impact of the predictability and the commonsense reforms that I believe are designed into this important bill. Because the American taxpayer pays to support the Medicaid system, pays to provide indigent health care, pays to provide other types of medical care, this is truly not just a State problem. This is a national problem, and I know many of my colleagues, myself included, are concerned when we hear those dreaded words from the Federal Government: We are from the Federal Government and we are here to help. Those are some of the most dreaded words in the English language because, indeed, the States and local government, I believe, tend to be much more responsive. This is truly not just a statewide problem in my State or any State. This is a national crisis that calls out for a national solution. This is not something that affects only obstetricians or baby doctors. Indeed, this affects the ability of hospitals to do business in rural parts of our country, rural parts of my State. Emergency departments lose staff and scale back critical services such as trauma units. From 2002 to 2003, we saw a 56.2 percent average premium increase faced by emergency room physicians and the hospitals in which they practice. One-third of the Nation's hospitals saw 100 percent or more increases in liability insurance premiums in 2002. We may think this does not really concern me, this is the hospital owned by a corporation, or this is a doctor's problem, somebody who drives a big shiny car, who makes a lot of money. But this is not about helping doctors or helping the corporations that own hospitals. Many of them are owned by nonprofit associations and are charitable organizations that keep their doors open because they believe in their mission. This is ultimately about access to health care. I have heard some of my colleagues on the other side suggest that because of the booming number of uninsured in this country, estimated to be at any snapshot in time as many as 43 million people, we need universal, federally funded health care in this country. We know, because the Joint Economic Committee has told us so, that 3.9 million uninsured Americans would be able to receive health insurance if Congress were to pass commonsense medical liability reforms. Almost 4 million currently uninsured individuals would be able to receive health insurance if Congress were to pass commonsense medical liability reforms. This is not just an isolated matter. This does not just affect doctors who are fortunate by virtue of their training and that expertise to earn significant incomes. This is not just about big hospitals with shiny buildings owned by corporations. This ultimately comes down to the individual who wants what we all want, and that is access to good quality health care, but who simply cannot find it because they either cannot afford the health insurance or their employer has been priced out of the market because of booming health insurance premiums, in large part caused by this liability crisis or, as we have seen, simply the doctors who, rather than live in the crosshairs of this broken system, decide to retire or to move away to some other location. I know there are others, such as Senator DeWine, who want to speak after me, so I will conclude my remarks. But I plead to my colleagues to allow this matter to be debated. That is all we are talking about at this point. All we are looking for is 60 Senators who will have the courage to stand up to the trial bar, the personal injury trial lawyers, who insist that this matter not be debated on the Senate floor. When so many pay the costs of that intransigence, I suggest that is just not fair and it is not just. I encourage our colleagues to reexamine their conscience and ask whether they are serving the best interests of their constituents, and in this specific instance so many women who need a doctor to deliver their baby. This country's future depends on those healthy babies being delivered and becoming productive citizens, not harmed by an avoidable medical complication because the mother, during her hour of need, and the baby during its hour of need could not get the medical care they so richly deserve and upon which America depends. We must end the liability lottery where only a few patients and even more trial lawyers receive astronomical awards. Even when there is no award in a frivolous lawsuit the costs simply run up what we all pay for health insurance, those of us who can get it, and render many more even unable to get access to health insurance and thus access to health care at all. We must pass meaningful medical liability reform that includes real and lasting change and brings the lessons of Texas and other States that have been successful in passing statewide reform to the entire Nation because, indeed, this is no longer just a State-by- State crisis, as we have seen with 19 States in an emergency situation. This is a crisis that affects our entire Nation. It affects the quality of life that we enjoy and the promise that I believe we all wish to see delivered to every American, and that is the ability to live out our dreams. Part of that means access to decent, good quality health care, something that is being impaired by our failure to act in this instance. I yield the floor. (Mr. COCHRAN assumed the Chair.)

Mr. CORNYN

Mr. CORNYN. Madam President, I, too, support the amendment of the senior Senator from Texas. As a member of the Environment and Public Works Committee, it has been my privilege to work with the Senator from Oklahoma as the chairman and the Senator from Vermont as the ranking member. While admittedly I was not satisfied with the formula that came out of the committee, based on my belief and the good faith of the chairman and others, we have been discussing ways that we could make this bill fairer to my State. The reason I support this amendment is because I believe it would do that--not just to the State of Texas but to also other what I would call superdonor States such as Florida, California, Arizona, Texas, Colorado, and Maryland. As the Senator from Arizona says, it is a matter of fundamental fairness. Texas contributes a dollar to the gas tax and, all things considered, currently gets back about 88 cents on the dollar. In fact, I have had some of my legislators come to see me and say that our transportation needs are so great in Texas, given our size, given the 10-year lifespan of NAFTA, increased truck traffic on our highways, that we would just simply like to be able to keep that dollar in Texas, spend it on our own roads and not send it to Washington, DC, and have 10 or 12 cents taken off that dollar and the remainder simply sent back to us. I understand this is a national transportation system we are trying to take care of here. But I believe Texas, and I believe all of the superdonor States, the ones that contribute the lion's share for transportation needs in this country, are entitled to greater consideration than is currently reflected in the formula. I think the senior Senator, Senator Hutchison, has come up with a good idea on how to do that, by using the $9.1 billion that is currently not distributed, which I understand remains in a discretionary spending account which can later be doled out. In other words, this will not add to the cost of this bill. It is money that is already figured into the bill but will simply be distributed according to the formula which she has already laid out, and which I think will not only result in greater fairness to my State but also to other States. In the end, this does not just benefit the superdonor States-- Florida, Maryland, Arizona, Texas, Colorado. Indeed, under this amendment every State would end up with more money, so I think every State would win. If I can say a couple of more words, though, about the unusual posture of my State when it comes to the transportation dollars. As I mentioned earlier, NAFTA is a big consideration. Obviously, for the 10 years NAFTA has been in effect, it has resulted in tremendous increases in trade and benefits to Americans, to Mexicans, and to Canadians. It has raised the level of the water and all boats have risen. Because of the increased trade, more products from our country were bought in Mexico and Canada, and vice versa. One of the things we are concerned about--we will have a hearing on it today in the Judiciary Committee--is our broken immigration system. One of the best ways I believe we can deal with the causes of illegal immigration is to increase trade with Mexico, for example, so the prosperity of that country will increase, jobs will increase, so people feel less and less need to immigrate illegally to this country to provide for their own families. My point is this. Because of our proximity to the border, because we have a 1,200-mile border, because of the number of border crossings we have, Texas transportation infrastructure has simply borne a disproportionate amount of the burden, from which eventually all of the country benefits because of this increase in trade and truck traffic I mentioned a moment ago. As a matter of fairness to Arizona, which is in a similar situation, and Texas, our infrastructure has degenerated. It has been overused, in a sense. The public safety has suffered because we have simply been a donor State and have not been getting back enough of the gas tax dollar to help provide for our transportation needs in the State. As I say, as a member of the Environment and Public Works Committee and the Transportation Subcommittee, I continue to hope--not just hope but also will work toward trying to make this bill acceptable and fair. It is certainly something I hope I will be able to support in the end. But I do think the proposal of the senior Senator, resulting as it will in a greater distribution of discretionary funds now into a formula that will then result in all States seeing an increase in transportation funds, is a step in the right direction. Finally, I would like to allude for a moment to the comments of Senator Kyl relative to the cost of this bill. I, too, believe in fiscal responsibility. I don't know ultimately how the Finance Committee will find a way to pay for this bill in its entirety. I think it is clear the President is not going to go for either a gas tax or for deficit spending. But should the overall amount of money be reduced from the current level to a lower level that would not require an increase in the gas tax or an increase in deficit spending, then my understanding is essentially the formulas we are looking at right now are out the window and we are going to have to look to ways to live within our means. But also, at the same time, we have to make sure this bill is fair to all States, particularly, I submit, the donor States that for a long time have paved roads and provided transit systems in other parts of the country from which the citizens of my State get no benefit. That is a matter of fundamental fairness we need to take care of. I believe this bill, with this amendment, would go a long way to doing just that. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent to speak as if in morning business for such time as I may consume.

Mr. CORNYN. Mr. President, 2 days ago, the Massachusetts Supreme Court sent shock waves across America when it held that traditional marriage--a marriage between a man and a woman--would be eliminated by judicial fiat. It is no secret the American people support traditional marriage. Yet some who would criticize that support for traditional marriage accuse those who support it of being intolerant. What I would suggest to you is the only ones guilty of intolerance are those who support the kind of judicial activism we have seen demonstrated by the Massachusetts court most recently--one that is fundamentally disdainful of democracy itself under the rule of law. Most Americans instinctively and laudably support two fundamental propositions. First, that every individual is worthy of respect, dignity; and second, that the traditional institution of marriage is worthy of protection. Some opponents of traditional marriage laws, however, have accused those who disagree with them of intolerance, even though support for traditional marriage reflects traditional values shared by the overwhelming number of Americans. These deeply held values deserve more respect than that. Throughout history, mankind itself, humankind itself, has recognized the fundamental importance of marriage and its traditional definition as the union of one man and one woman. That understanding is reflected in the laws, traditions, and customs of all 50 States. Now I should say, apparently, 49 States--unless the Massachusetts Legislature and the Massachusetts people are able to somehow overcome this edict by the Massachusetts Supreme Court in their attempt to alter this historic institution and fundamental building block of our society. Common sense and social science alike teach us that, even as we respect family relationships of all kinds, we must recognize that children are best raised by intact traditional families. Accordingly, in 1996, this body, the U.S. Congress, recognized that fact by passing a law called the Defense of Marriage Act, a law that was supported by overwhelming bipartisan majorities in both the Senate and in the House, and ultimately signed into law by President Clinton, a law that reaffirms that marriage is defined as the traditional union of a man and a woman. Indeed, three-fourths of the States have approved similar legislation. In light of this popular and well-grounded national consensus, charging supporters of traditional marriage with intolerance is simply outrageous. I agree with the Senator from Massachusetts, Senator Kennedy, who said in 1996 as part of the debate over the Defense of Marriage Act that ``there are strongly held religious, ethical, moral beliefs that are different from mine with regard to the issue of same-sex marriage which I respect and which are no indications of intolerance.'' It was just last September that the Constitution Subcommittee of the Senate Judiciary Committee, which I chair, held a hearing to consider whether some recent U.S. Supreme Court decisions put the Defense of Marriage Act in jeopardy. To me it just made good sense that Congress itself, after having passed this law so overwhelmingly, would look to see whether judicial activism posed a threat to this democratic expression of the will of the American people through their duly elected representatives. Indeed, there was some debate whether the Supreme Court decision in Lawrence v. Texas, which created not just an equal protection right but which created out of whole cloth this notion espoused by Justice Kennedy and a majority of the Court, to an individual right to autonomy in one's sexual relationships, such that government can never regulate or intrude. Of course, they purported to put marriage, incest, pedophilia, and other things like that out of bounds or outside of their decision, but the fundamental basis for that decision, legal scholars at that time recognized, could easily be transferred to other cases where the very definition of marriage and family itself was at issue. So it was with great concern that, just a short time after that September hearing, we saw the day when we would have to face this issue had come much faster than any of us could imagine. The Massachusetts Supreme Court, the first court in the Nation, held that--based on the very same rationale that the U.S. Supreme Court used in the case of Lawrence v. Texas--that Massachusetts could no longer limit marriage licenses to couples of the opposite sex. In an apparent attempt to create a figleaf of an idea that democracy was still alive in Massachusetts and it would not forever be ruled by judicial edict, the Court granted the legislature 180 days to bring the laws of Massachusetts into line with this new found legal right to same-sex marriage. It was a newly discovered right, of course, being found primarily in the U.S. Supreme Court decisions of last summer. So in an effort to find some way out of this dilemma, the legislature asked the Massachusetts Supreme Court whether civil unions would be sufficient under the court's ruling to meet the requirement of equality of treatment. It was the day before yesterday when the court, astoundingly, said ``No.'' The only thing that would satisfy the Court's decision, its edict, would be to give same-sex couples the same treatment as we recognize for traditional marriage between a man and a woman. Thus the people of Massachusetts, their Governor, their legislature, are now scrambling to try to figure out what alternatives are available to them. They hope to avoid this runaway train careening down this track--the establishment, at least in Massachusetts, of a right to same-sex marriage. The thing that was impressed upon me so much about the Massachusetts decision when reading it, besides the fundamental holding which sent shockwaves across America, was the sheer contempt that the court held for traditional marriage. Its intolerance for traditions we have recognized in this country, certainly since its founding, and in identifying this new right based on no particular or specific text but indeed made up out of whole cloth by the court relying on Lawrence v. Texas. The Massachusetts court did not stop at this enormous step, but proceeded to condemn traditional marriage outright, and they did so in rather startling terms. After acknowledging, as Senator Kennedy had back in 1996 when we were talking about the Defense of Marriage Act, that deep-seated religious, moral, and ethical convictions are motivating traditional marriage supporters, the Massachusetts court said that it still found ``no rational reason'' for laws limiting marriage to a man and a woman. And, in fact, it went even further. It concludes the traditional marriage is ``rooted in persistent prejudices.'' I know that Members of this body and our colleagues across the Capitol, really no one in America, wants to engage in this debate. It is understandable. No one, frankly, wants to be painted with a brush of intolerance of somehow treating people badly. But as I said, this is not about treating others badly, failing to give them respect as individuals. This is about the intolerance marshaled by judicial activists on the Massachusetts Supreme Court and on benches around the country, the massive intolerance they have for fundamental democratic values. These are the values that say we, the people, are the judges of our own destiny, and no law will be made unless it is founded on the fundamental consent of the people, not on casual judicial edict. The American people are left in shock when, occasionally, courts come out with rulings that defy all logic and all common sense--rulings that dramatically conflict with our traditions and our fundamental values. These are cases not only like the Massachusetts case, but like the case decided by the Ninth Circuit not too many months ago where, for the first time in American history, a court has held that to allow schoolchildren to say the Pledge of Allegiance and recite ``one nation under God'' violated the Constitution. Again, another decision totally at odds with common sense, totally at odds with our values and traditions, and one that certainly the American people would not support. Instead, a handful of judges who appear to consider themselves smarter, wiser than the common man, are telling the American people what they think is good for them. After all appeals are exhausted, if in fact the American people are left with a decision like this Massachusetts decision, make no doubt about it, if it stands, it will then be used in a variety of different ways. Lawsuits will proliferate all across the country, citing the Massachusetts decision, based on this U.S. Supreme Court decision Lawrence v. Texas last summer as a basis to recognize same-sex marriages in other States. Because they will be challenging on a constitutional basis, State statutes will then be scrutinized to see if they pass muster under this new-found constitutional right made up by the Massachusetts court. They will be argued as a basis upon which to overturn traditional marriage laws in other States as well. And that will happen in State and Federal courts, all across the country. The second thing that will happen is that same-sex couples who receive marriage licenses in Massachusetts will begin to move to other States, and they will file lawsuits in those States and say: Under the full faith and credit clause of the U.S. Constitution, I have a right, under the U.S. Constitution, to have my marriage, which is valid in Massachusetts, recognized in Texas or Kansas or Maine or California, Oklahoma, Florida--you name it. We will begin to see these sorts of lawsuits and claims proliferate around the country. And that causes me a great deal of concern when a court of law, supposedly--but really a court that is acting more like a superlegislature, a legislature wearing black robes, ruling by edict and the gavel--makes statements such as this, such as the court in Massachusetts did when it called traditional marriage a ``stain,'' a ``stain'' on our laws that must be ``eradicate[d].'' I am just baffled at how people, who put their hands on the Bible and pledge to uphold the laws and the Constitution of their State and of the United States, can find a right that no one else has found to exist in the Constitution. I am baffled that they are so openly contemptuous of American values and American families and our traditions that they would call traditional marriage a ``stain'' that must be ``eradicate[d]'' from our laws. The choice is up to us, whether to live with the dictates or the edicts of judges. Judges in other States cannot be held directly accountable to us, because we cannot vote on them, we cannot seek any sort of redress against those decisions. Yet we have to live with this sort of judicial adventurism and judicial activism that challenges the basic precepts upon which our society is based. The choice we are left with is to decide whether a Federal marriage amendment to the U.S. Constitution is the appropriate response. As I said just a few moments ago, last September I held a hearing in the Constitution Subcommittee of the Judiciary Committee, asking the question: Is the Defense of Marriage Act in jeopardy? As I said, we had a debate. Some said, well, yes, they thought courts had all the tools they needed in order to hold that act unconstitutional, and it was just a matter of time before they did that. And there were others who candidly said: No, there is no way, no how, that it was never going to happen. Well, we have learned something since that September hearing. Not only has a court shown its willingness to attack the fundamental institution of traditional marriage in such a contemptuous, anti- democratic way, but the day on which other courts are more likely to do the same has become incredibly accelerated. I believe we are now engaged in a battle over whether this land, when it comes to traditional marriage, will be ruled by the whim of judges or whether we, the people, will determine our fate and our values and the outcome of this very important controversy. I believe we stand by and do nothing at our own peril. Because if we do nothing, this decision will redefine and trivialize the institution of marriage. If you can take the label of ``marriage'' and apply it not just to the traditional relationship between a man and a woman--one that has been found over countless years to benefit children, to provide a stable emotional and economic foundation for children so they can then prosper and become responsible, productive adults--if we allow a court, making it up as they go along from the sweet mysteries of life, to attack an institution as fundamental as marriage--and our response is to do nothing about it, then shame on us--shame on us. I never imagined in a million years when I ran for this body, the United States Senate, in 2002, that I would be coming to the Senate floor and defending traditional marriage. And I bet my colleagues here, on both sides of the aisle, in both Chambers, are scratching their heads and wondering: What has the world become? Has the world gone crazy? What happened to our understanding of what American values are, and our tradition, and our respect for democracy, and our respect for the different branches of Government that perform different functions, with the Legislature passing laws, the courts interpreting the laws, and the President, the executive branch, executing those laws? We stand by and do nothing at our own peril. So I believe the time has come for the appropriate committees in this body, as well as in the House of Representatives across the Rotunda, to convene hearings to determine how best we can respond to this startling display of judicial activism that so threatens our fundamental institutions and our values. As the chairman of the Constitution Subcommittee of the Judiciary Committee, I intend to work with Chairman Hatch to do just that. The day that some speculated would come has now come upon us so much more quickly than any of us ever dreamed--the day has come, I believe, to confront this challenge to democracy and to the rule of law itself face to face. We must not flinch. We must not back down. We must not allow people to paint our motivations as hateful or hurtful because, indeed, they are not. No, what we are about is preserving our law, preserving the separation of powers where the legislature makes the law and the judiciary interprets the law. We are about preserving the fundamental building block of our society and the well-being of families and the welfare of children. That is what we are for. That is what this debate will be focused on. I believe the institution of marriage deserves better than it has received at the hands of the Massachusetts Supreme Court. Our institutions of democracy deserve better. The American people deserve better. They deserve respect. Our Constitution deserves respect. Traditional marriage laws have served as the underpinning of civilized society for countless generations. Opponents of traditional marriage should demonstrate greater tolerance and respect toward others by respecting democracy and the will of the people, and ceasing their judicial war against marriage. I suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. Mr. President: I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Wednesday, January 28, 2004, at 9:30 am on NASA'S Future Space Mission, in SR. 253.

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 January 28, 2004, at 11:00 a.m., in open session to receive testimony on efforts to determine the status of Iraqi weapons of mass destruction and related programs.

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, January 28, 2003 at 10:30 a.m. to hold a hearing on Pakistan & India: Steps Toward Rapprochement.

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 January 28, 2004, at 4:00 p.m., in open session to consider the following Nominations: Francis J. Harvey to be Assistant Secretary of Defense for Networks and Information Integration; Lawrence, T. Dirita to be Assistant Secretary of Defense for Public Affairs; and William A. Chatfield to be Director of Selective Service.

Mr. CORNYN. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet for a hearing on What's Driving Health Care Costs and the Uninsured? during the session of the Senate on Wednesday, January 28, 2004 at 10:30 a.m. in SD-430.

Mr. CORNYN

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 say a few words about our Nation's immigration policy. Early this month, I applauded President Bush by talking about his principles which he believes ought to be embodied in comprehensive immigration reform. The President spoke courageously and forthrightly, and I urge Congress to heed the President's call. We must acknowledge the truth. We need to be honest. The fact is, we have done far too little to repair a system that calls out--indeed, a system that cries out--for reform. Our homeland security demands an accounting of the identities of an estimated 8 to 10 million individuals currently living illegally in the United States, including their reason for being here and allowing an informed judgment on whether they pose a danger to us. For those who are deportable criminals, that judgment must be swift and sure. The truth is the vast majority of undocumented immigrants in this country are not here as drug dealers, violent criminals, or terrorists. Rather, they are here doing the best they can to work hard so they can provide for their families. We can no longer deny the sheer number of undocumented individuals or the extent of our economy's dependence on the labor that they provide, nor can we ignore the horrible costs that many of these individuals pay when it comes to human smuggling. In the wake of 9/11, much of the increased enforcement effort that we have made in terms of our border security has succeeded in blocking off the easiest transit points along our border, but that only means they resort to more remote and dangerous areas to cross, and sometimes with deadly results. These individuals are also relying more on human smugglers, known as coyotes. Hundreds of undocumented individuals have died in the past 2 years. An immigration policy that ignores the reality of human suffering and death cannot be tolerated in a humane society. For too long, the political extremists have dominated the debate about immigration. There are those who say they want to build a wall around our country, and others, on the other end of the spectrum, who cry for unconditional, complete amnesty. But both of these extremist proposals are unrealistic, and they leave many problems unanswered. What America needs instead is a comprehensive and fundamentally strong immigration system that bridges the gap between our economic and security needs. I believe a comprehensive, commonsense guest worker program is a critical first step toward fixing our immigration policies and adapting to modern realities. That is why last summer I introduced the Border Security and Immigration Reform Act of 2003. I urge my colleagues to educate themselves about the contents of this bill and to recognize that we must act to bring our broken immigration system into the 21st century. Here are the key elements of my proposal. We need immigration reform. I believe we need an immigration system that will put homeland security first. Any reform of our immigration laws must be able to distinguish between the benign and the dangerous. Our law enforcement resources, limited as they are, must be able to be focused and dedicated to hunting down the real threats to our Nation, whether they are the smugglers, the drug dealers, or the terrorists, not simply those who are merely looking for a better life for themselves and their loved ones. Currently, the whereabouts of 80,000 criminal alien absconders, aliens who have been convicted of a felony and ordered deported, is simply unknown to our Government. They vanished and we don't know where they are. They are running free within our borders. In addition, we don't know the whereabouts of hundreds of thousands of other undocumented aliens who are under final orders of deportation. They simply have no other appeal, they are under final orders to leave, and they simply, again, melted into America. This must change. Our immigration authorities must be given not only adequate funding and resources but adequate priorities as well. They must be allowed to spend more time on those who are a threat to us and not just those who come here to perform work that Americans by and large will not perform. Ignoring the problem--something we have done for some time now--won't solve any of our border security or immigration problems, and it will not make our Nation any more secure. Identifying, detaining, and deporting real threats to our Nation and our families will. Second, my bill will help bring millions of current undocumented immigrants out of the shadows and under the rule of law and onto the tax rolls. Under my proposal, guest workers will no longer fear the authorities but, rather, will come to see the law as an ally and not as an enemy. This, in turn, will help protect immigrants from exploitation and violence and help end the death dealing of human smugglers. We must bring these workers out into the open, out of the shadows, out of the cash economy, and onto the tax rolls, which I believe will ultimately help restore respect for the rule of law. Third, our immigration system must give a real incentive for undocumented workers who come to this country to work on a temporary basis. It must give them a real incentive to ultimately return to their home country. I believe my proposal is unique in this respect-- something we call ``work and return.'' My proposal gives undocumented immigrants a real reason to come out of the shadows, to work within the law, to be accounted for, and then to return to their homes and their families in their home country, with the pay and the skills they acquire as guest workers in the United States. In my recent visit with government leaders in Mexico City, I was repeatedly told that Mexico wants, indeed Mexico needs for its young, energetic risk takers and hard workers ultimately to come back home, and particularly to come back home with the capital and savings and the skills that they acquire when they work in the United States. They need these people to come back to their home country and to buy a house, to start a business, so that these small business owners, these potential entrepreneurs, can help strengthen the middle class in countries like Mexico. But our current immigration policy fails to give undocumented immigrants any real incentive to make a return to their home country. Of course, I have mentioned Mexico, but this would hold true for many other countries that would also be covered by this program. The fact is, there will be no end to illegal immigration across our southern border without economic recovery south of the border. Those of us in America cannot afford for our southern border to remain a one-way street. Guest workers should, yes, be allowed to come out of the shadows and register for a program that will allow them to transit back and forth across the border in a way that they do not have to turn their lives and their fortunes over to coyotes and human smugglers. But ultimately real reform would make sure that these guest workers, after working here temporarily in the United States, must return to their country of origin. President Bush called us to this task in his State of the Union speech just a couple of weeks ago now. I believe we in Congress have a duty to confront this challenge. We should hide our head in the sand no longer. We cannot, in my view, simply ignore the fact that there are literally hundreds of thousands of people under final orders of deportation. There are 80,000 criminal alien absconders currently loose in this country, and our law enforcement authorities simply don't know where they are. But as for those who are not a threat, those who want nothing more than the opportunity to work temporarily and return to their homes with the savings and the skills they need in order to have a better life in their home country, I believe we must move these temporary workers out of the shadows. We must at the same time ensure the security of our borders. We must restore respect for our law, and we must bring our broken immigration system into the 21st century. I suggest the absence of a quorum.