John Cornyn

Mr. CORNYN

Mr. CORNYN. Mr. President, I have to give my colleague from New York credit. He is a determined, articulate advocate of his point of view. The problem is the facts just don't sustain that point of view. This has been refuted time and time again, but we see the same charts being trotted out time and time again that just are proven not true by the facts that we all know. I want to talk a little bit about those facts. I want to talk a little bit about what Democrats in the past have said about filibusters and their conviction that they should never occur and that they are, in fact, unconstitutional. In fact, those are the arguments we are making today, and we will use their own words to prove it. My colleague from New York time and time again trots out a chart that claims that a number of judicial nominees have been filibustered by Republicans when in fact, those same nominees have been confirmed and are today sitting on the Federal court. How he can claim that what a Democrat minority is doing to Miguel Estrada or Priscilla Owen, Janice Brown, Carolyn Kuhl, Bill Pryor, and Charles Pickering is somehow the same thing Republicans did in the past is just disingenuous at best. He claims that Stephen Breyer was filibustered. The last time I checked, Stephen Breyer sits on the U.S. Supreme Court. You go down his list, and, frankly, the chart is not worth the paper it is printed on. Don't take my word for it. Listen to the words of Tom Daschle on January 30, 1995. The minority leader said: The Constitution is straightforward about the few instances in which more than a majority of the Congress must vote: A veto override, a treaty, and a finding of guilt in an impeachment proceeding. Every other action by the Congress is taken by majority vote. That is our position. They are denying those very words here today. I just hope the American people are listening, even though the hour is early and even though we have been talking for a long time now. My question is, should we believe you today or should we believe what you said in 1995, Senator Daschle, when you said, other than a veto override, a treaty, or a finding of guilt in an impeachment proceeding, every other action in Congress is taken by majority vote? I believe he was correct then and because of the politics of the moment he is not correct today. Senator Tom Harkin, in 1994, said: I really believe that the filibuster rules are unconstitutional. I believe the Constitution sets out five times when you need majority or supermajority votes in the Senate for treaties, impeachment. We could go down the list: Lloyd Cutler, White House Counsel under President Carter and President Clinton; Senator Biden; Senator Boxer; Senator Feinstein; and Senator Kennedy. Senator Kennedy said: ``Nominees deserve a vote.'' He is not saying that here today. He is voting to obstruct a vote where a bipartisan majority of the Senate stands ready to confirm these nominees. Senator Kennedy said: ``Nominees deserve a vote. If our colleagues do not like them, vote against them.'' I would prefer the Senator Kennedy of that era because I think he was right then. None of our colleagues on the other side of the aisle have made any explanation for why they have changed their position on what the Constitution means. But yet we have heard from Senator Allen and others that the characterization we are hearing from the other side about these fine judicial nominees is nothing more than politics. The Senator from New Jersey, Mr. Corzine, in a moment of stark candor, had this to say. This was an e-mail he sent to prospective donors to the Democratic Senatorial Campaign Committee. He said: Senate Democrats have launched an unprecedented effort. How he could call it unprecedented if, in fact, as Senator Schumer and others have said, it hasn't happened in the past? Senator Corzine, I guess, is guilty of telling the truth here. He said: Senate Democrats have launched an unprecedented effort by mounting filibusters against the Bush administration's most radical nominees. Senate Democrats have led the effort to save our courts. Of course, we understand what is going on. This is about raising money. This is about stirring people up by throwing them some red meat. We all understand what is going on. The American people understand what is going on, that this is about politics. This is not about politics as usual, this is about politics at its worst. The reason I say that is not because it is unusual for us to disagree in this body. In fact, that is one of the things I love about this body--that any Senator can stand up and talk about what they truly believe to be in the best interests of this country. We know many times there are disagreements. But then ultimately we have a vote because we believe in majority rule in this country. That, in fact, is what distinguishes this form of government from others--that sooner or later, after we have talked--and we have talked about some of these nominees for 2\1/2\ years or more--but sooner or later, we vote. Sooner or later, we vote. That is what democracy is about. That is not what is happening with regard to these filibusters, and it is wrong. The thing that really concerns me--there are a lot of things that concern me about this process. I believe it is not simply in need of tinkering. I think the system is broken down completely and we need a fresh start. Together, myself along with my colleagues who are new Members of this body who have been here now for just about a year, we sent a letter to the majority leader and the minority leader, the chairman and ranking member of the Judiciary Committee, and said: We are really not interested in this game of tit for tat or recrimination, pointing to the past and saying we were entitled to treat President Bush's nominees today badly because we believe you treated President Clinton's nominees badly. Frankly, I wasn't here then. I don't endorse treating any nominee badly. These are honorable men and women who have been chosen by the President to serve in positions of important public service, and they deserve to be treated better than the nominees we are talking about today have been treated. Perhaps there were excesses in the past. I regret that. Unfortunately, I wasn't here to do anything about it. But I am here today. What I believe is that we need a fresh start. We need to agree among ourselves that what has happened in the past in terms of the way judicial nominees have been treated does not reflect credit on this institution, and the people we are talking about, people who have risen to the very top of the legal profession and who should be treated with honor, it is wrong to treat them as common criminals. It is wrong to treat them as a caricature of their true selves. It is wrong to call them names. We can disagree with them. We can have a great debate. But ultimately, we need to treat them respectfully. That doesn't mean a Senator has to vote for them. Every Senator has a clear right to vote their conscience--to vote up or down. That is really all we are asking for today and last night and for the remainder of this day, and as long as it takes to make clear that what is happening is wrong. It is unconstitutional, as Democrat leaders have said in the past--a fact which they have apparently forgotten, to put it charitably. But I think the thing that really concerns me more than anything else--and as I have said, there is a lot to be concerned about--is the tactics used against some of these nominees, and the way they are treated after they have volunteered to offer their services to the American people on the bench. We have seen charts that say 168 to 4. As we pointed out before, the real number, if we are being honest, should be zero to 4, zero being the number of filibusters against judicial nominees from 1789 to 2002. That is right. It never happened before--never in the history of the United States of America. It has never happened before, until this year. This year we have seen four filibusters. What has changed? Has the Constitution somehow changed? For those Senators who decried filibusters in the past and who now embrace them, what has changed to cause their change of opinion and change of view? I think we know what has happened. That is why the number should be zero to 4--zero filibusters since 1789 until 2002 and 2004, in this last year, in an attempt to block President Bush's highly qualified nominees. But as I was saying, where I come from we don't treat people as statistics. Where I come from, if you are going to attack someone and call them names, you at least give them a chance to meet with you and sit down and talk face to face. Yet obstructionists have time and time again refused to even meet with these nominees. Any Member of the Senate who would like to meet with these nominees and talk about their concerns and to see if they are justified, to listen to the response, has that right, and indeed every Senator has had that opportunity, but many have turned it down rather than take advantage of that opportunity and reach understandings and then vote. We have even had this process sink to a new low when it comes to embracing the idea that a nominee's personal views on religious issues should play a role in determining whether or not they are fit to serve as a judge. I strongly disagree with that concept, and I think all of us should reject it. I believe that when a nominee's personal theological beliefs become a legitimate course of debate before the judiciary and before the Senate, when we insert ourselves somehow between the relationship between an individual and their God, we violate both our conscience and our Constitution. I have sensed in the Judiciary Committee that some of my colleagues are genuinely alarmed and uncomfortable when a nominee speaks about his or her faith in honest terms in the public arena. Indeed, it is so rare today where people feel free to talk about things that are most important to them. I would like to read a comment that unnerves some of these folks, who are uncomfortable with such frank and honest discussions. We are inspired by a faith that goes back through all the years to the first chapter of the Book of Genesis. God created man in his own image. We on our side are striving to be true to that divine heritage. We are fighting, as our fathers have fought, to uphold the doctrine that all men are equal in the eyes of God. There never has been, there never can be, a successful compromise between good and evil. Only total victory can reward the champions of tolerance and decency and freedom and faith. This was not the comments or the testimony of a nominee to the Federal bench. These were the words of President Franklin Delano Roosevelt. I seriously doubt that anyone in this body at that time took President Roosevelt to task for speaking frankly and honestly about his deeply held personal religious beliefs. President Roosevelt was certainly within his rights to say that in 1942, and it is just as right and proper that our nominees today express their deeply held religious beliefs when they are talking about things that concern them in response to questions, whether it be about abortion or any other issue. I wonder today if, testifying before the Judiciary Committee, President Roosevelt himself would be challenged for these very remarks. We have most recently witnessed the strident animus directed toward Judge Carolyn Kuhl and Attorney General Bill Pryor who have faced challenges over their religious beliefs, particularly concerning the matter of abortion. Both nominees have, from a legal scholar's point of view, criticized the legal analysis used to support the Roe v. Wade decision. These nominees personally hold beliefs that are absolutely consistent with their faith and the doctrine of their church. Their understanding of religion holds to the doctrine that abortion is wrong. Yet, still, the obstructionists have argued that for both of these nominees--and Bill Pryor, in particular, who is repeatedly challenged over his philosophy and deeply held views above all those arising from his religious beliefs, rendered them simply unqualified to be confirmed. I would point out that these nominees are hardly alone in criticizing the Roe decision as a legal matter. Numerous legal scholars and jurists across the political spectrum who call themselves pro-choice and pro- life have publicly criticized the legal analysis in Roe, and indeed that is what lawyers do and judge us do. They parse words. They challenge an analysis to try to sharpen legal thinking. But Supreme Court Justice Ruth Bader Ginsberg, who was overwhelmingly approved by the Senate, has described Roe as ``heavy-handed judicial intervention'' that was ``difficult to justify.'' Allan Dershowitz, a law professor from the Harvard Law School, described Roe as a ``case of judicial activism more appropriately left to the political process.'' Edward Lazarus, former law clerk to Justice Blackmun, the author of Roe, said that ``Roe borders on the indefensible as a decision and, at its worst, is disingenuous and results oriented.'' I read these quotes not for any other reason except to show that there has been over time serious scholarly concern about the legal justification for that decision. But perhaps more to the point, even though Attorney General Pryor and Judge Kuhl have criticized the reasoning of Roe, they recognize that Roe v. Wade is the law of the land. Indeed, one of the things I admire most about Attorney General Bill Pryor, as the Senator from Tennessee noted in his comments last evening, is that he has said: ``No matter what my personal beliefs are, I believe in the morality of enforcing the law.'' Indeed, I believe as a public servant, as attorney general, as a judge, it is the obligation of a judge to interpret the law as written, not as I would have it be. Indeed, some of the problem we have had is judges who have elevated their personal beliefs, their political agenda above the law. I submit that a judge who is a lawmaker is, in fact, a law breaker. We understand in this country what was settled well over 200 years ago at the Constitutional Convention in Philadelphia; that is, we have three branches of Government. We have the Congress or legislative branch, which everyone understands. That is the reason we run for election, tell people what we believe, and then we are either accepted or rejected by the public because they believe that same way or not. But then we have a President, the executive branch, whose job it is to execute the law that Congress has written. Indeed, they are servants of the law as well because we recognize they, too, must comply with the law and that no President is above the law; that we are a nation of laws, not of men. Then there is the judicial branch of Government. The Federalist Papers refer to the judicial branch as the ``least dangerous branch.'' I wonder whether James Madison and Alexander Hamilton are spinning in their graves today when they see what the Federal judiciary has become in too many instances, where judges have assumed the role of lawmaker, something that was anathema to the Framers. My point is simply this: People such as Priscilla Owen, with whom I served for 4 years on the Texas Supreme Court, understand that no matter what their personal beliefs are, when they put their hand on the Bible and they take an oath to uphold the law of their State and of the United States of America, they have a sacred obligation not to elevate their personal views above the law. Indeed, the judicial philosophy we should all embrace is that of a judge who interprets the law and not makes law. As I said earlier, a judge who is a lawmaker is indeed a law breaker because they violate the fundamental commitment that all of us have made to enforce and uphold the law, including the Constitution that dictates those respective roles for the various branches of Government. When I see people such as Priscilla Owen, who received 84 percent of the vote in her last election by the people of Texas and who has been twice selected to the Texas Supreme Court; when I see people such as Justice Janice Rogers Brown, who was supported by 76 percent of Californians in the last election in 1998, the highest of four justices on the ballot; these are not out-of-the-mainstream judges, unless words no longer have meaning. I agree with Senator Santorum who has said, to many it appears that their definition of ``mainstream'' is extreme. But these are mainstream judges who have received the support of the people they currently serve, both in Texas and California, because they have faithfully interpreted the law. They have been true to their oath. They have been true to the Constitution. We live in a pluralistic society. People across this country have a variety of different beliefs on a variety of different matters. Indeed, that is what makes this country so great and so strong because we believe everyone is entitled to believe as they wish, to speak and say what they want, but that ultimately we are all governed by the same rules: the rule of law. It does my heart great sadness to see that people who have dedicated their life to upholding the law are treated so shabbily in this, the world's greatest deliberative body, and that reputations that have been earned with a lifetime of public service are degraded and denigrated to the point that we would not recognize them; that their families, who listen to these unfair and, in some instances, scurrilous attacks, must certainly suffer when they hear the name calling and the unfair characterization of these good and decent human beings. Just one example of this, perhaps, has taken us to a new low. This cartoon appeared in the Black Commentator on September 4, 2003. This was displayed at the hearing of Janice Rogers Brown before the Judiciary Committee, someone who currently serves on the California Supreme Court. I had the honor to introduce her to the committee because her two home State Senators refused to do so. But it was my honor to do so. This is the kind of scurrilous, mean attack that is embraced by some who oppose these nominees. I know it is not necessarily easy to see, but this depicts a caricature of President Bush, a picture of Janice Rogers Brown in the most extreme sort of racial stereotype you can imagine, Justice Clarence Thomas, Secretary of State Colin Powell, and Condoleezza Rice, National Security Adviser to the President. The President is saying: ``Welcome to the Federal bench, Ms. Clarence . . . I mean, Ms. Rogers Brown. You'll fit right in.'' Our colleagues on the other side would do well to disavow this kind of support for the obstruction of these judicial nominees. Indeed, I would think every fairminded and decent human being would decry and denounce these sort of vial and loathsome tactics. We can disagree. We can have different points of view. Indeed, I think that is what makes this body so unique and so important. But we should agree to maintain a certain minimum level of civility in our discourse and, indeed, when there are those who inject this sort of scurrilous attack on President Bush's nominees, or anyone else for that matter, we ought to stand up and say: Unfair, unjustified, and we repudiate it. Frankly, I have not heard the kinds of repudiation that I would expect for those who are joining in this obstruction against Janice Rogers Brown and denying her the right to a vote. That is all we are asking for, an up-or-down vote.

Mr. CORNYN. The Senator has characterized what he thinks is happening here in terms of these attacks on qualified nominees, such as Miguel Estrada. I just wish to ask the Senator this. We all know, in order to get to the Senate, we have to run for election; and I just ask the Senator what his reaction is, or whether he would include this in the category of petty partisan politics that he just described in terms of the way Miguel Estrada has been attacked. Most recently, in a fundraising electronic newsletter to potential donors, the chairman of the Democratic Senatorial Campaign Committee, our colleague from New Jersey, recently acknowledged--he boasted that the current blockade of judicial nominees is ``unprecedented.'' But the context in which he used that is to raise money for Democratic candidates to the Senate and the statement we are hearing on the floor regarding the figure 168 to 4, that they have only blocked 4. But at the same time we see they are using these unprecedented filibusters to block the highly qualified nominees of the President. Is that what you would characterize as a political use of this obstructionism of President Bush's nominees?

Mr. CORNYN. Will the Senator yield for one other question?

Mr. CORNYN. Will the Senator yield?

Mr. CORNYN

Mr. CORNYN. Mr. President, I express my gratitude to the Senator from Alabama for his leadership on these issues. He and I share an experience in common, having been attorneys general of our respective States, I in Texas and he in Alabama. I guess that experience, together with the fundamental values we have all come to believe in, ensconced in the Constitution, that elevate the rule of law over the political maneuverings of men and women, is something about which we feel very strongly. I know he does, and I appreciate his eloquence and his passion and his commitment to those values and that ideal. I know after this lengthy debate there will be those who will want to make a judgment on who won and who lost. That is what I want to talk about for a few minutes because, frankly, I think the battle is not over. With the failure to achieve the necessary votes for cloture of these three nominees this morning, three highly qualified and distinguished individuals who, frankly, don't deserve the shabby treatment they have received during this confirmation process, there will be some who will say: Well, the majority was unable to get the minority to change their mind and so the majority must have lost. The stubborn, recalcitrant minority must have won. I would say this is a case of perhaps having lost the battle but the war is still raging. The war is still going on. Frankly, it is a war, a battle, a metaphor for a war that has been going on since the inception of this country. It is a debate about what kind of country this is, what kind of country America is. Indeed, it is also a question of what kind of country we will become. I believe that if our judicial confirmation process becomes so politicized, as it appears to have become, and the test for confirmation is political correctness and licking your finger and putting it in the wind to test which way public opinion is going, and to make sure that if you are a lawyer or a judge or an attorney general you have made decisions in a way that is consistent with public opinion polls rather than the law, I think we will risk losing that war because it is fundamentally a war of words, of ideas, about what kind of Nation we are and what kind of Nation we will become, whether we will become one ruled by politics and polls and special interest groups or whether we are a nation of laws and not men and women. There is more to be said. There is more to be done in this ongoing war. Of course, we all know those who have followed this debate are aware that the majority leader and Senator Zell Miller from Georgia, a Democrat colleague of ours, have filed a rule change proposal which would allow for sufficient debate in the Chamber on nominees but ultimately allow what the Constitution itself commands, and that is that majorities ultimately rule. This is about a fundamental precept of our democratic form of government which says that after the debate, after everybody has had their say, after we have learned from each other in the give and take, ultimately there has to be a vote, and that when those votes are counted, majorities will rule and they will determine the outcome. Of course, that is the rule everywhere where democracy is respected and practiced except, I am sad to say, in the Senate, when it comes to these judicial nominees, because what we have experienced here with this unprecedented obstruction is a tyranny of the minority. It is, frankly, a shame. I think we are poorer for it. We could talk about this ongoing war of ideas and debate. We can talk about the battle we fought here this last day and a half and how it is just one battle in this ongoing conflict of ideas and really debate about the nature of our country that we have had since the beginning of this country. But there is a judgment day. There is a judgment day under our form of government, and that is when ordinary citizens exercise their right to go to the polls and to say whether they approve or disapprove of what we are doing here in this Chamber. Whether you are a city councilman, county commissioner, Governor, Senator, Congressman, President of the United States, we are subject to the ultimate judgment of those voters, of those citizens, because we are a country that believes in the sovereignty of the people. And it is the people who will have the last word. I believe our friends on the other side of the aisle who have exercised this tyranny of the minority have made a very dangerous gamble. Their gamble is, what they are betting is, that not enough people are really paying attention. Of course, that is part of what we have been trying to do, to make sure that people who are interested have an opportunity to understand what is going on here and what is at stake. But ultimately, under our form of government, there can be no division in this body or anywhere else in this country about the fact that, ultimately, the American people will exercise the final judgment and determine who wins and who loses. That has not been decided today on this issue. This is just one battle in that ongoing war leading up to that day of judgment. Ultimately, for those of us who run for public office, that is what determines whether we will continue to serve here in this body or in any other elected office in this Nation or not; whether we maintain the confidence of the people; whether the people believe that what we are doing here represents their interests as opposed to special interests. And if, in fact, they have confidence in our judgment, our honesty, integrity, and what it is we are trying to accomplish here, then they will say so by returning us to this place, or any other office of public service. So, ultimately, this battle has really been a skirmish in this ongoing conflict. There is an important difference between those who would obstruct a bipartisan majority who want to confirm these fine nominees, and that is really the nature of the judicial branch of our Government. I have had the honor for 13 years to serve my State in the judiciary before I was attorney general, and now in the Senate. I believe fervently that what the Framers intended by creating the judicial branch was not one where we had ideologues on the bench, or even politicians who were trying to advance a political or personal agenda. What they conceived and what has helped maintain the rule of law by determining the independence of the judiciary is that we will have rules that will govern all of us, and there will be disputes about those rules and the facts will be decided by independent judges, not ideologues, not those politicians on the bench, not somebody who has run for a particular platform to be nominated and confirmed to lifetime tenure. The Framers' genius really was that that is a role they left to the representative branches of Government, the Congress and the executive branch, represented by the President. They conceived of a judiciary that would interpret the law and not make the law; that would interpret what the legislature's intent was, not promulgate public policy from the bench, or legislate from the bench. The legislation, they said, should come from the Congress. Once the Congress has determined the laws, then the President has a responsibility to execute the law. It is a judiciary that serves as the impartial ``umpire.'' We all know that, in any sporting activity, an umpire who takes sides before the contest is inconsistent with the whole idea of fair play. We are talking about more than fair play here. We are talking about what kind of nation America is and what kind of nation America will become, whether we preserve this concept of an independent judiciary, unaffected by politics, that determines the law, not makes the law. I believe James Madison, Alexander Hamilton, and others of the Founding Fathers, who so wisely conceived of this form of government, would literally roll in their graves if they heard some of the suggestions we have heard during this debate and elsewhere--that judges can, and perhaps should, be ideologues; and really what we are trying to do is achieve some sort of mythical balance to make sure we have enough conservatives and liberals and moderates on a multijudge bench, and somehow in this ``witch's brew'' we are going to come out with justice, with fairness; that people will know what the rules are ahead of time and be able to conform our conduct to what the rules are, so they can go about their business unafraid of being interfered with, molested, or sued. Indeed, that is what we depend on, the knowledge of what the rules are, and that they will be administered by those who do not have a stake in the outcome, or have an ax to grind, or have a political or personal agenda. That is what our judges are supposed to be, not those who participate in a game of political football. We do not want, as this process has seemed to degenerate into, judges who will precommit to the outcome of cases that may come before them before they have even heard the facts. In the Judiciary Committee, on which I serve, I have heard judicial nominees questioned about: How would you rule if such and so happened? What is your view of the 14th amendment or the 5th amendment? Assuming this given set of facts, how would you rule in that case? Those questions are entirely inappropriate. We don't want judges, and we should not confirm judges, who would prejudge a hypothetical set of facts. We want judges who have an open mind and a commitment to the rule of law, and who will enforce that law impartially, without regard to who wins or loses. If what we are doing here jeopardizes the rule of law, we will have done great damage not only to this body but to our country. Mr. President, I thank my colleagues for patiently listening after this long debate. But I believed it was important to make some of these points. I yield the floor and suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. I yield the floor to the senior Senator from Texas.

Mr. CORNYN. Mr. President, I yield myself 7 minutes, and I yield the senior Senator from Texas the remaining 5 minutes of our time. Mr. President, I have been either in the Chamber or watching the Chamber from other parts of this building as this debate has gone forward since early last evening. I happened to be watching from my office just before I came to the floor most recently when the Senator from Iowa, Mr. Harkin, made a couple of comments to which I want to respond. First, I want to say what I agree with. I agree with him that the people who work so diligently in this Chamber and elsewhere, in the cloakroom, the people who report what we say for the Congressional Record, how much I and the rest of us appreciate their faithful and dedicated service. Some of us got a few hours sleep last night. I am not sure all of them did. I just want to say for all of us how much we appreciate their service. There is something else he said that I disagree with very strongly, and that is where my colleague from Iowa charged the Republicans in this Chamber, the bipartisan majority really--it is not just Republicans--but charged those of us who believe this debate is important with ``sanctimonious hypocrisy'' for our attempts to uphold the Constitution for what we believe to be the unconstitutional obstruction of President Bush's nominees. There is a lot about this debate that I think folks at home watching TV or listening on the radio may have a little bit of trouble getting their head around, their brains around, because some of it involves arcane rules of the Senate and the Constitution. There is one thing that folks back home understand, and they understand hypocrisy, sanctimonious and otherwise. I think it is worth noting, indeed I think it is important to note, comments that have been made by those who are now on the other side of this debate, what they said a few short years ago on this very self- same subject. My mother used to say that the test of one's character is whether you are the same person in public as you are in private, and I think using something close to that test, we could ask whether the speeches that a Senator gave 5, 6, or 7 years ago are consistent with the position they publicly take today. In that spirit, I would offer this: On March 1, 1994, the Senator from Iowa said: I really believe that the filibuster rules are unconstitutional. That is the same Senator who accused those of us who believe that the same thing he professed in 1994, when he called us sanctimoniously hypocritical for what we are doing today--he happened to agree with us in 1994 but has obviously changed his position today. Senator Lieberman of Connecticut on January 4, 1995, said: The filibuster rule, there is no constitutional basis for it. It is in its way inconsistent with the Constitution. One might almost say it is an amendment to the Constitution by rule of the U.S. Senate. Then there was the minority leader, at a time in 1995 when he said: The Constitution is straightforward about the few instances in which more than a majority of the Congress must vote. The Founders concluded that putting such immense power into the hands of a minority ran squarely against the democratic principle. Democracy means majority rule, not minority gridlock. Then there are the comments of the distinguished legal counsel, Lloyd Cutler, who served as White House Counsel both to President Carter and President Clinton, who said: Nothing would more poorly serve our constitutional system than for the nominations to have earned the approval of the Senate majority but to be thwarted because the majority is denied a chance to vote. I would like to agree with the comments made by Senator Lieberman, Senator Daschle, Senator Harkin, and Mr. Cutler just a few short years ago, but obviously their position has changed, or I should say their position has changed because majorities have changed. They find themselves in a different posture today than they found themselves in then, and it is no longer convenient or expedient for them to claim that majority should rule. I submit they were right then and they are wrong now. I do not know of a nicer way to put it. It is hypocrisy to take inconsistent positions based on expedience where they should be made on principle. What we are fighting about today is a fundamental principle. My colleague from Iowa said he wondered what the moral demarcation line was between holds and committee inaction on the one hand and filibusters on the other hand. I have an answer for him. I think it is a great question. The answer is: The line of moral demarcation is the Constitution and majority rule. That is where the moral demarcation line is, and there have now been four unconstitutional filibusters.

Mr. CORNYN. Mr. President, may I inquire how much time remains on our side?

Mr. CORNYN. I ask consent the Senator modify his request so just prior to proceeding as requested, the three cloture votes would be vitiated and the Senate would then immediately proceed to three consecutive votes on the confirmation of the nominations, with no intervening actions or debate.

Mr. CORNYN

Mr. CORNYN. Mr. President, I want to focus on a chart that was displayed earlier by the Senator from New York where he proudly displayed the numbers 168 to 4. I think it is important we ask the question: what is that chart designed to prove? On one hand, our colleagues on the other side of the aisle in the Judiciary Committee and here in the Chamber rail against the President's judicial nominees, calling them out of the mainstream and, even worse, mean-spirited, right wing. But if, in fact, our colleagues on the other side of the aisle have voted to confirm 168 of President Bush's nominees, it refutes that allegation because they have to agree that at least 168 of those nominees met their definition of mainstream. I would like to associate myself with the outstanding comments of the Senator from Kentucky, the assistant majority leader, Mr. McConnell. I wonder what their definition of mainstream truly is. The second number of 4 is a number they want to be congratulated for blocking. I submit that just because you observe a stop sign 168 times and comply with the law, you are not to be rewarded for running that stop sign four times. It is still a violation of law, and you are still likely to get a ticket from the police officer. This is more than just about breaking the law. This is about violating our Constitution, the fundamental law of this Nation. We know really, rather than 168 to 4, the true number we ought to be focusing on is 0 to 4, and let me explain. From 1789 to 2002--that is, for all of our Nation's history up until this year--the number of filibusters against judicial nominees of a President was--you guessed it--zero. But this year alone, because of this tactic that our colleagues have devised, to deny a bipartisan majority of this body its right under the Constitution to vote up or down on a judicial nominee, this number is 4. So rather than 168 to 4--and as I explained, I think that repudiates and flies in the face of some of their arguments about President Bush's judicial nominees, and I deny that they are to be congratulated for unconstitutionally obstructing only 4. The real number we ought to be focusing on, and I hope the American people are focusing on, is zero to four because never, ever, in the history of this Republic has a minority in the Senate denied the right of the majority the vote up or down on judicial nominees. It is just not right. It is not fair. It has resulted in a degradation and a downward spiral in the judicial confirmation process of which no one should be proud. I submit that four unconstitutional filibusters of these distinguished nominees is four filibusters too many. If we want to look at maybe a little bit of a history lesson, as this chart demonstrates, when Franklin Delano Roosevelt was President of the United States, 4,473 laws were enacted, 4 civil rights laws were filibustered--hardly something to be proud of. But I guess if our colleagues across the aisle are proud of their four, the argument would be that the people who filibustered these civil rights laws during FDR's term ought to be proud of that number. When President Truman was in office, 3,414 laws were passed, 3 civil rights laws were filibustered. Is that something to be proud of? What our colleagues across the aisle say, because 3,414 laws were passed and only 3 were filibustered, that these folks who filibustered those three civil rights laws ought to be congratulated. I think not. Then when President Lyndon Baines Johnson was in office, 1,931 laws were enacted, 3 civil rights laws were filibustered. To this hall of shame, I would add the 168 to 4, which is nothing to be proud of; it is something to be ashamed of. Unfortunately, some people have lost their sense of shame in this process, which has become so degraded and so destructive. Indeed, I submit that the filibusters we have of the President's nominees are an abuse of the process. How can they justly claim that a 60-vote requirement to close off debate can somehow trump the Constitution? As we have heard before on this floor, everyone knows, who has studied the Constitution, that there are supermajority requirements for certain things, and they are stated in the Constitution: To ratify a treaty or to pass a constitutional amendment, the Constitution is very clear that it requires a supermajority. Everything else requires majority rule. Indeed, majority rule is fundamental to the democratic form of government. Majority rules: We fight our best fight; we make our best argument. Then we have a vote up or down. If we lose, well, we come back to fight another day. We try to persuade others that we were right and the majority was wrong. That is what our form of government is all about; not denying a majority their right, as stated in the Constitution, to let majority rule. Believe it or not, that is what is happening and that is the reason we are standing here tonight trying to let the American people know that a terrible abuse of this process is occurring and an abuse of the Constitution, indeed a violation of the Constitution, is occurring. It is a disgrace. It is nothing to be proud of. The other thing I would point out in the few minutes I have remaining, before I turn the floor over to the senior Senator from Texas, is this process is not only abusing the Constitution and creating a downward spiral in the judicial confirmation process that is very destructive of relationships in this institution, of our ability to get things done, it has made it too partisan, too bitter, too angry, and it is destructive. I would also point out that the tactics that are being used against some of these nominees are despicable. Unless we stand up and repudiate the tactics of some of those who are opposing the fine nominees of President Bush, such as Janice Rogers Brown, I believe those who have joined cause with them in opposing this fine nominee ought to examine their conscience. I think they ought to reconsider their tactics. I think they ought to reconsider whom they associate with, whom they are joining cause with to tear down some of the fine nominees of this President, such as Janice Rogers Brown. This is a cartoon that was posted on The Black Commentator on September 4, 2003, with President Bush, a racist caricature of Janice Rogers Brown with Justice Clarence Thomas, Colin Powell, Secretary of State, and Condoleezza Rice standing there. The caption says: ``Welcome to the Federal bench, Ms. Clarence--I mean, Ms. Rogers Brown. You'll fit right in.'' It is easy to see why this process has gone downhill and needs a wake-up call from all of us, because we need a fresh start. We need to disavow tactics such as this. Those who are opposing Justice Brown and other nominees should not be proud of that association any more than they claim to be proud of an unconstitutional filibuster of four of these nominees, including Justice Brown, because if, in fact, we do not get a fresh start, we do not have a clean break with this destructive process, if we do not quit tearing down people who want nothing more than to offer themselves to the American people by serving in positions of honor, such as Federal judges, who will answer the call? If they know that answering the call of public service means that they are going to have their reputation destroyed, they are going to be besmirched, they are going to be painted into a caricature that bears no resemblance to who they really are, who will answer the call? We will all be poorer for it. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Madam President, I extend my thanks and appreciation to the Senator from Michigan for yielding and allowing me to say a few words during his comments. Particularly I express my appreciation to the chairman of the Armed Services Committee, the distinguished Senator from Virginia. The manner in which we have seen them navigate the traffic jam here on the floor this afternoon on this important legislation is indicative of the cooperative and collaborative effort that both the ranking member and the chairman have demonstrated throughout this lengthy process of reconciling not only coming up with a bill but reconciling the differences between the House and Senate on this important legislation. I rise to say a few words about the Defense authorization conference report that is before the body today. On Veterans Day in 1954, President Eisenhower called upon all Americans to not only remember the sacrifices of those who fought so valiantly but to rededicate themselves to the task of promoting an enduring peace. Today, almost 50 years later, we recall the dedication of all our veterans as we honor them on Veterans Day 2003. We take this time to honor them because they gave so much to all of us and to say a prayer for the men and women laboring overseas even now to spread the light of freedom to a land that was previously cloaked in darkness. We must always remember the old adage which is still true that freedom is not free but was bought and paid for by the sacrifices of generations that have gone before us and, indeed, even the present one. I can't help but think about my own father when I think about the sacrifices of generations that have gone before, because he was a member of that greatest generation who at a young age flew in the Army Air Corps in a B-17 over Nazi Germany. On his 13th mission, he was shot down and captured by the enemy and imprisoned for 4 months in a German prison camp. Later, when General Patton and his troops came through and liberated him and his colleagues, my dad would return to this country, to Corpus Christi, Texas, where he met my mother and where they married and raised a family and really became, as I said a moment ago, what we have come to know as the greatest generation. We owe, indeed, everything we have to the contributions and the preservation of our freedoms that they made. It is they and others like them who, since that time, have fought in the cause of freedom that we honor today. I think it is altogether fitting that we consider this bill on Veterans Day because it accomplishes great things for all of the members of our Armed Forces, both active and retired, as well as their families. I have been amazed at how the senior Senator from Virginia, Chairman Warner, has navigated this important legislation through the difficult conference committee process. I know it was not easy. It has been my pleasure to work with and learn from him during the course of my service on the Armed Services Committee. This legislation authorizes more than $400 billion in budget authority for defense programs in fiscal year 2004. I strongly believe it is our duty to ensure that the U.S. military has the resources they need, whether it be the equipment, the facilities, or the training to do the job we have asked them to do, and to win the war on terror. In short, we must do whatever is required to maintain our military's status as the greatest fighting force on the face of the planet, even as we transform the nature of that force to face the challenges of the future. I am proud of the work that has been accomplished here in terms of providing an expanded entitlement to concurrent receipt to include thousands of more veterans. I believe it is indeed a major step in the right direction. Our veterans have more than earned this; they deserve it. I am glad this bill will expand the special compensation for the combat-related disabilities program to include all veterans whose disabling condition was due to combat or combat-related operations. I strongly believe we are honor-bound to keep our commitment to our men and women in uniform and that our support of them will not end when they leave active duty and go into retirement. No veteran should ever be left behind. I will continue to work in this body to make sure that Texas veterans, indeed all veterans, receive the benefits they so richly deserve. Our men and women in uniform, whether they be active duty or reservists, or members of the National Guard, are all doing a tremendous job fighting the war on terror. So I am especially glad to see that this bill provides for an average pay raise of 4.1 percent, provides enhanced access to TRICARE for members of the Reserves, and authorizes increased hostile fire pay and family separation allowances to continue. When someone leaves their home to fight for the cause of freedom abroad, we know it affects not just that soldier, or that sailor, or that marine, or that airman; it affects their entire community, it affects their friends, and it affects their families. So we must not think only of the service of the brave men and women who fight on the battlefield, but the sacrifices their families make at home. Of course we must remember, above all, those whose loved ones will not be coming back, who paid the ultimate price so others may live free. I especially acknowledge the hard work Chairman Warner and the senior Senator from Arizona did on the Boeing tanker lease. I believe they were able to achieve an excellent compromise, one that will save the taxpayers more than $4 billion. It is critical that, while we allocate needed funds to ensure our Nation's defense, we also spend the money in a careful and fiscally responsible manner. I believe they have accomplished that, and we will accomplish that by approving the bill today. Finally, I thank the conferees, and particularly the leadership, the chairman and ranking member, and others who have worked so hard, for including the bulk of the Military Citizenship Act, a bill I introduced, which will expedite the naturalization process for nearly 37,000 men and women serving in our Armed Forces who are not U.S. citizens. It will reduce waiting times, waive normal fees, and require the Secretary of Defense to enact a policy that facilitates the opportunity for a member of the armed services to finalize naturalization, including the granting of high priority for emergency leave and transportation on military aircraft. I believe there is no better way for us to honor the heroism and sacrifice of those who risk their lives for our fundamental national values than to offer them a full opportunity to enjoy the blessings of American citizenship. In 1944, Winston Churchill spoke in the Royal Albert Hall to the veterans of another war, and he reminded them of the great and just cause they served. He said: We are joined together in this union of action which has been forced upon us by our common hatred of tyranny. Shedding our blood side by side, struggling for the same ideals, until the triumph of the great causes which we serve shall be made manifest. . . . Then, indeed, there will be a day of thanksgiving, one in which all the world will share. Coming up to the current time in Iraq, of course, we know the fight is ongoing and there is still much to be done. But the difference our Armed Forces have made in such a short time is undeniable. Less than a year ago, the idea that the Iraqi people could ever live in freedom was nothing but a dream. Now the vision of a free, prosperous, and peaceful Iraq is in sight. The day of thanksgiving is not here yet, but it is coming. Thanks to the leadership of President Bush and the professionalism and patriotism of our Armed Forces, and the sacrifices of their families, it is coming soon. One out of every 10 active-duty military personnel calls Texas home. I am honored to represent them, along with the senior Senator from Texas, Mrs. Hutchison. I am proud--and I know we are both proud--of the work that has been done on this Defense authorization bill to serve their needs while enhancing our national security. I wish our brave men and women in uniform godspeed and look forward to the day when these young men and women can stand beside veterans of past wars as living examples of selflessness and courage for the cause of freedom. Madam President, I yield the floor.

Mr. CORNYN. If I may have 10 minutes.

Mr. CORNYN

Mr. CORNYN. Madam President, I want to say a few words about the nomination of Bill Pryor to serve on the Eleventh Circuit Court of Appeals. I come to this debate with some personal knowledge of the nominee, having served as attorney general of Texas for 4 years during the time Bill Pryor served as attorney general of Alabama. Before I get to the specific comments about this outstanding nominee and distinguished law enforcement official, I want to say a little bit about the process. The process of confirming judicial nominees in the Senate is broken, and it cries out for reform and a fresh start. Since I have been in the Senate, I have heard those who have attempted to justify the poor treatment of President Bush's judicial nominees based upon alleged poor treatment of President Clinton's judicial nominees. We have somehow gotten involved in this game of tit for tat, of recrimination, that does not serve the best interests of the American people. We have gotten into unprecedented obstruction of judicial nominees by filibuster, which has never in the history of this great Nation happened until recently, and it is a tragedy. As some of my colleagues on this side of the aisle observed, if a minority of Democrats are successful in blocking a bipartisan majority in the Senate from an up-or-down vote on a judicial nominee, when the roles are reversed, which at some time in the future they may be, and a Democrat is in the White House, Republicans are going to want to use the same tactic on nominees of a Democratic President--something I believe would be wrong, but my views do not necessarily control what happens in this body. The point is, we are on a downward spiral of destruction not only of this great institution, but damaging in the process the fine reputations of these individuals who have come forward to offer to serve the American people. We are treating them as common criminals. We are mischaracterizing their resumes, their reputations in the process, and I believe doing great harm in the process. I want to say our colleagues on the other side of the aisle, who claim to be--in the words of Thomas Jefferson, supposedly, when he was asking Washington about the role of the Senate in our form of Government, he called the Senate the cooling saucer. But the truth is, rather than a cooling saucer when it comes to judicial confirmation, the Senate has become a stone wall, not a cooling saucer, particularly as it pertains to these nominees the minority Democrat leadership has decided to obstruct and prevent from an up-or-down vote. I realize they are grasping at straws, but somehow they have grasped on to this notion that since they have not blocked 168 of President Bush's nominees, they should be congratulated for blocking only 4. Well, we learned this morning in the Judiciary Committee that that four may soon become five, and then possibly six. My point is they simply cannot be congratulated for an unconstitutional, unprecedented filibuster and preventing up-or-down votes, which is democracy in action. There is another thing. For example, the Senator from New York, who just spoke a few moments ago, who also serves on the Judiciary Committee, said something which I think bears some scrutiny. This morning he repeated an allegation he and others have made that somehow President Bush has hijacked the judiciary by nominating a narrow band of people who he claims are ideologically driven to overturn the law and run roughshod once they get on the courts. They really need to make a decision what they believe. They either believe President Bush's nominees are all ideologically driven and determined to reach a particular result regardless of what the Congress says, regardless of their oath of office, where they put their hand on the Bible and agreed to serve as a judge and interpret the law, not make law, or this argument about being congratulated for somehow confirming 168 of these people, which simply does not stand up. They have to make a choice. The truth is, they want it both ways. They really can't have it both ways. Bill Pryor is simply an outstanding human being and a great attorney general. I believe he will be an outstanding judge. He is a deeply religious man. Some have criticized him for his deeply held beliefs. Unfortunately, sometimes in this debate, I worry that by criticizing somebody for their deeply held beliefs, which happen to be founded in their religious beliefs, we are setting a bar or perhaps building a wall against the opportunity for these people to participate in our government, particularly on the bench. That should not be the case. Our Constitution bars religious tests from service in public office. General Pryor has demonstrated his ability to enforce the law as written, which is what he would do on the bench, interpret the law as written and not elevate his personal agenda or his personal beliefs above what the law says. Time and time again, he has done so. I worry about two things in this process. One is obstruction, preventing a bipartisan majority from voting, and destruction of good human beings and their reputations they have worked a lifetime to achieve. They come here, honored to receive the nomination of our President to serve in these positions of great honor, and then they are placed in the dock where they become an accused and are expected to defend themselves against unwarranted and unjustified charges. I wish we could see a fresh start to a process that does not serve either the nominees or this body or the American people well. I do not believe anyone should be congratulated for an unconstitutional obstruction of the democratic process going forward, when a bipartisan majority is ready to confirm these outstanding nominees, such as Bill Pryor. But that is what we have seen, obstruction and destruction of these fine individuals. I see the distinguished chairman of the Judiciary Committee. I thank the Chair and yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to say a few words about the continuity of Government. More than 2 years since the terrible events of September 11, Congress has not taken any steps necessary to protect the Nation by ensuring continuity of Government operations should there be another attack and the tragic loss of life or disability on the part of Members of the United States Congress. The Founders of this country rightly required a majority of each House to constitute a quorum to do business, to ensure a nationally representative Congress. But the Constitution does not provide, I should say, adequate mechanisms to assure a continuing, functioning Congress if a majority of the Members are incapacitated or killed by a terrorist attack. Our current system of providing for the continuity of Government in the event of a disaster is simply inadequate to meet the realities of a post-9/11 world. As unthinkable as another attack of that magnitude might be, we must be ready for the worst. In fact, we have a duty as the elected Representatives of our respective States to do everything within our power to provide for a stable continuance and function of Government, despite all possible catastrophes. We must not leave our Nation's citizens without representation, without order, and without defense. We simply owe it to the American people to ensure that our Government will remain strong and stable, even in the face of disaster. It is my conviction that this issue deserves more than just token attention. It is not something we can or should put off until another day. It is urgent and it is a critical element of our ongoing fight against terror. Today, I have offered a proposal to provide for the continuity of congressional operations. In coming weeks, I will submit legislation to address the problems of our current system of Presidential succession as well. Earlier this year, the bipartisan Continuity of Government Commission, which was a joint project of the American Enterprise Institute and the Brookings Institution, issued a report which unanimously recommended a constitutional amendment: To allow immediate, temporary appointments to Congress until special elections could be held to fill vacancies or until matters of incapacitation can be resolved. Many Members of Congress strongly agree with the recommendation of that commission. Some, however, are reluctant to allow for the appointment rather than the election of Representatives, no matter how dire the emergency. To protect the American people and ensure a functioning Congress, we must find a way to bridge the gap on a temporary basis. I submit that this must be an emergency measure which would allow for the ongoing operation of Government in a catastrophe but which would then allow for election in the ordinary course of events, after events had been stabilized. I have proposed a constitutional amendment that would allow Congress to enact laws providing for congressional succession modeled after the provision of article II, authorizing Congress to enact laws providing for Presidential succession. I also propose implementing legislation to authorize each State to craft their own mechanisms for filling vacancies in their congressional delegations, which is modeled after the 17th amendment. In other words, my proposal specifically refrains from choosing sides in this debate, as far as whether the temporary emergency measure be by appointment or by election, leaving that decision up to the States, following the model of the 17th amendment, which of course provides for the election or selection of Senators in the event of vacancy. Forty-eight States provide for temporary appointment by the Governor, but two States provide for special elections. This proposal would give each State the option to choose which procedures they deem most advisable. The proposed constitutional amendment would simply defer the question to Congress, and the implementing legislation would defer the question to the States. In an age of terrorism and weapons of mass destruction, I believe it is high time to address this need that is all that much more apparent post-9/11 to ensure the continuity of this body and of the entire Congress. In my capacity as chairman of the Constitution Subcommittee of the Senate, the Committee of the Judiciary, I plan to convene hearings next year so we can debate this proposal as soon as possible. I was not in Washington when the attacks came on September 11. Like so many other Americans, I was at home in Texas, getting ready to go to work when I heard the terrible news, and then was rivetted to the events unfolding on television. But I know for many of my friends and colleagues who were here on that horrific day, they and we all feel a tremendous debt of gratitude to the heroes of flight 93. The brave passengers on that airplane did more than just save the lives of their fellow citizens. Absent their courageous sacrifice, flight 93 could have reached its final destination, perhaps this very building, in an attack that could have eliminated an entire branch of government. That hallowed ground in Pennsylvania, where flight 93 met its ultimate rest, marks a promise left behind by those courageous heroes, a promise carried on to their children, to their loved ones, and, indeed, to this very Nation. It is a promise that says that freedom will not end here in the violent acts of evil men. It persists, it endures, and it will not be destroyed. Even as we dedicate ourselves to the ongoing war on terror at home and abroad, even as we hope and pray that the tragedies of September 11 will never be repeated, we must always remain conscious of our promise as Senators, to serve the people of our States and of our Nation, and to support and defend the Constitution of the United States. It is not every day that you introduce legislation hoping and praying that it will never be necessary, but this legislation is, in a very real sense, urgent and necessary. We must prepare for all contingencies fulfilling our oaths of office to ensure that this promise--the promise of a free government, a government of laws, not men--shall not perish from the Earth. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent to speak for a period not exceeding 10 minutes as in morning business.

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

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to say a few words about the continuity of Government. More than 2 years since the terrible events of September 11, Congress has not taken any steps necessary to protect the Nation by ensuring continuity of Government operations should there be another attack and the tragic loss of life or disability on the part of Members of the United States Congress. The Founders of this country rightly required a majority of each House to constitute a quorum to do business, to ensure a nationally representative Congress. But the Constitution does not provide, I should say, adequate mechanisms to assure a continuing, functioning Congress if a majority of the Members are incapacitated or killed by a terrorist attack. Our current system of providing for the continuity of Government in the event of a disaster is simply inadequate to meet the realities of a post-9/11 world. As unthinkable as another attack of that magnitude might be, we must be ready for the worst. In fact, we have a duty as the elected Representatives of our respective States to do everything within our power to provide for a stable continuance and function of Government, despite all possible catastrophes. We must not leave our Nation's citizens without representation, without order, and without defense. We simply owe it to the American people to ensure that our Government will remain strong and stable, even in the face of disaster. It is my conviction that this issue deserves more than just token attention. It is not something we can or should put off until another day. It is urgent and it is a critical element of our ongoing fight against terror. Today, I have offered a proposal to provide for the continuity of congressional operations. In coming weeks, I will submit legislation to address the problems of our current system of Presidential succession as well. Earlier this year, the bipartisan Continuity of Government Commission, which was a joint project of the American Enterprise Institute and the Brookings Institution, issued a report which unanimously recommended a constitutional amendment: To allow immediate, temporary appointments to Congress until special elections could be held to fill vacancies or until matters of incapacitation can be resolved. Many Members of Congress strongly agree with the recommendation of that commission. Some, however, are reluctant to allow for the appointment rather than the election of Representatives, no matter how dire the emergency. To protect the American people and ensure a functioning Congress, we must find a way to bridge the gap on a temporary basis. I submit that this must be an emergency measure which would allow for the ongoing operation of Government in a catastrophe but which would then allow for election in the ordinary course of events, after events had been stabilized. I have proposed a constitutional amendment that would allow Congress to enact laws providing for congressional succession modeled after the provision of article II, authorizing Congress to enact laws providing for Presidential succession. I also propose implementing legislation to authorize each State to craft their own mechanisms for filling vacancies in their congressional delegations, which is modeled after the 17th amendment. In other words, my proposal specifically refrains from choosing sides in this debate, as far as whether the temporary emergency measure be by appointment or by election, leaving that decision up to the States, following the model of the 17th amendment, which of course provides for the election or selection of Senators in the event of vacancy. Forty-eight States provide for temporary appointment by the Governor, but two States provide for special elections. This proposal would give each State the option to choose which procedures they deem most advisable. The proposed constitutional amendment would simply defer the question to Congress, and the implementing legislation would defer the question to the States. In an age of terrorism and weapons of mass destruction, I believe it is high time to address this need that is all that much more apparent post-9/11 to ensure the continuity of this body and of the entire Congress. In my capacity as chairman of the Constitution Subcommittee of the Senate, the Committee of the Judiciary, I plan to convene hearings next year so we can debate this proposal as soon as possible. I was not in Washington when the attacks came on September 11. Like so many other Americans, I was at home in Texas, getting ready to go to work when I heard the terrible news, and then was rivetted to the events unfolding on television. But I know for many of my friends and colleagues who were here on that horrific day, they and we all feel a tremendous debt of gratitude to the heroes of flight 93. The brave passengers on that airplane did more than just save the lives of their fellow citizens. Absent their courageous sacrifice, flight 93 could have reached its final destination, perhaps this very building, in an attack that could have eliminated an entire branch of government. That hallowed ground in Pennsylvania, where flight 93 met its ultimate rest, marks a promise left behind by those courageous heroes, a promise carried on to their children, to their loved ones, and, indeed, to this very Nation. It is a promise that says that freedom will not end here in the violent acts of evil men. It persists, it endures, and it will not be destroyed. Even as we dedicate ourselves to the ongoing war on terror at home and abroad, even as we hope and pray that the tragedies of September 11 will never be repeated, we must always remain conscious of our promise as Senators, to serve the people of our States and of our Nation, and to support and defend the Constitution of the United States. It is not every day that you introduce legislation hoping and praying that it will never be necessary, but this legislation is, in a very real sense, urgent and necessary. We must prepare for all contingencies fulfilling our oaths of office to ensure that this promise--the promise of a free government, a government of laws, not men--shall not perish from the Earth. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Madam President, I want to add a few words of my own to the debate about Governor Leavitt's nomination. I have here a chart that I think reflects my concerns about what we have seen happen with regard to the nomination of this highly qualified individual to be Administrator of the Environmental Protection Agency. It says: Obstruction, it's not just for judges anymore. I have the honor of serving on a number of committees in the Senate, one of which is the Judiciary Committee where, unfortunately, I have become somewhat accustomed to controversy and problems relating to unprecedented filibusters which have prevented an up-or-down vote when a bipartisan majority of the Senate actually stands ready to confirm President Bush's judicial nominees. So you can imagine my surprise and my consternation when, in fact, we have seen now the same sort of obstructionist tactics that have become, unfortunately, all too common in judicial nominations leak over into the deliberations of the Environment and Public Works Committee. Sadly, rather than working with Governor Leavitt to ensure the EPA is doing all it can and should do to protect this Nation's environment, some in this Chamber have chosen this as an opportunity to score political points. They have turned to another good nominee as yet another proxy for personal and political battles. It is clear to me they seek to attack an extremely qualified and honorable man in order to score political points with various special interest groups. Governor Leavitt's extensive experience and impressive environmental gains in his home State of Utah make him eminently qualified to serve. Indeed, when Governor Leavitt came before the Environment and Public Works Committee, many of my Democratic colleagues noted his qualifications. They said, for example, he was ``a person of principle.'' They held him in ``very high personal regard.'' They called him ``bright,'' and a ``hard worker,'' who is ``very good at building consensus'' and a ``man of integrity.'' Indeed, I agreed with those characterizations. But rather than treating Governor Leavitt as the qualified nominee he is, some on the other side of this aisle have seen fit to give his nomination no respect at all. The reality is obstructing Governor Leavitt's nomination only delays strong leadership where we need it dearly, and that is at the helm of the Environmental Protection Agency. Delaying a vote to confirm him only delays implementation of programs those of us who are in favor of a cleaner environment would like to see served. Unfortunately, many who claim to be pro-environment now find themselves in the very ironic position of being anti-environment, from the standpoint of opposing making sure the EPA has the kind of strong leadership it needs to navigate a very difficult job. The truth is, political blackmail will not clean our rivers and our streams. Heated rhetoric will not improve our air quality. Jockeying for position during a Presidential primary at the expense of a nominee with a proven record will not protect our children from future environmental threats. With the exception of greenhouse gases, all air pollutants have been declining for decades. I direct my comments now to the criticism that really seemed to go not so much to Governor Leavitt but at the administration, at the administration of President George W. Bush. In all of the attempts to try to discredit the President and the current administration on environmental issues, you might conclude--or someone who is perhaps not well informed might well conclude--pollution is running rampant in our country. In fact, the opposite is true. The truth, as I said, is, with the exception of greenhouse gases, all air pollutants that are tracked by the Environmental Protection Agency have declined dramatically over the past decades. They have declined under President Reagan. They declined under President George Herbert Walker Bush, and President Clinton, and they declined even more under President George W. Bush. The EPA has done a study and found that thousands of monitoring stations across the country have shown a tremendous improvement in our environment over the last 20 years. Overall, aggregate emissions of the six principal air pollutants have declined by 48 percent since 1970, despite the fact that the American population has grown by 39 percent during that period. Most people reading the newspaper and watching television could be excused if they had the impression that our environment was getting dirtier and dirtier, when the truth is it is getting cleaner and cleaner. Unfortunately, too many partisans have found it politically helpful to them to mischaracterize the facts. Some critics have recently targeted the President's proposed reforms in the New Source Review concerning aging powerplants in the Midwest. But what they neglect to mention is emissions from these very same facilities have been declining at a steady rate, even as electricity production has increased. Emissions have declined by 40 percent since 1980. The old 1977 ideas behind New Source Review assume you get cleaner air if you impose tighter emissions regulations on newer plants rather than old ones. That kind of thinking might work with a car, because when cars get old, people replace them. But powerplants are different. Many old powerplants are still operating, and I believe we need to put common sense back into our environmental policies by reforming New Source Review rules. If your plant wants to reduce emissions and increase productivity, the Government should not stick you in the eye. It should pat you on the back. But it is not just air quality that has improved. All forms of water pollution have declined for decades as well. In 1970, approximately one-third of lakes and rivers in the United States received the Clean Water Act definition of ``safe for fishing and swimming.'' Today, nearly two-thirds of lakes and rivers meet that standard. Forested space has also been increasing in acreage--not declining-- for more than a decade. Our forests continue to expand under President Bush, and trees continue to be one of our greatest and best managed renewable resources. Finally, there is this simple fact: No animal species in the United States has fallen extinct since the full implementation of the Endangered Species Act in the late 1970s. Indeed, many important species are now experiencing positive population growth. In the face of these facts, I find it very hard to believe the unfounded criticism of this President's commitment to environmental protection. The condition of the environment has improved since President Bush took office, and it will continue to improve as a result of his innovative reforms. It will continue to improve if our colleagues across the aisle will end the politics of obstruction and allow the confirmation of this highly qualified nominee who is a wise choice. I have no doubt that he will continue the great progress which this administration has made on environmental issues--seeking the goal of cleaner air and safer water for all of us. The extremists in this debate are not seeking balance or commonsense solutions or, in fact, what is best for the American people. Instead, they see this as a zero sum game--a proxy for political interests, and they have chosen obstruction as one of their tactics. Ultimately, this results in political blackmail that just makes victims of us all. Governor Leavitt's reputation falls victim to unwarranted and disrespectful attacks, a responsible Senate falls victim to vicious political blather, and the American people fall victim to politicians who are more attracted to serving special interests than the public interest. If the President's critics on the environment are truly committed to protecting and preserving it, they should have put aside their political agenda and allowed the Senate to vote on Governor Leavitt's nomination. Obstruction won't clean the air, protect our rivers and streams, or preserve our environment for future generations. I am sad to say but it is clearly true that when it comes to obstruction, it is not just for judges anymore. I urge my colleagues to reconsider their tactics, vote to invoke cloture, and allow the President's nominees to have an up-or-down vote and ultimately confirm this fine nominee, Governor Leavitt. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that Mike Fitzgerald, a member of my staff who does not currently have floor privileges, be admitted to the floor for the duration of my remarks.

Mr. CORNYN

Mr. CORNYN. I ask unanimous consent that of that time, the last 10 minutes before the vote be reserved for the Senator from Iowa, the sponsor of the bill, or his designee; that following this UC request we go to the Senator from Nevada for 5 minutes; thereafter, that the Senator from Delaware be recognized for 5 minutes for any comments he may make; and then that the remainder of the time be reserved for me or my designee.

Mr. CORNYN. Mr. President, I ask unanimous consent that the 5 additional minutes of morning business just consumed by the distinguished assistant majority leader be charged against the Republican time for debate on the motion to proceed to S. 1751.

Mr. CORNYN. I certainly ask that the Senator from Vermont be recognized for that purpose.

Mr. CORNYN. Mr. President, first I inquire as to the remaining time on the Republican side.

Mr. CORNYN. How much time remains for the Republican side?

Mr. CORNYN. I ask unanimous consent to revise the previous unanimous consent agreement to provide for 7 minutes for Senator Grassley or his designee, 3 minutes for Senator Kohl, the Senator from Wisconsin, and I reserve the remaining time for myself, such as remains.