John Ensign

Mr. ENSIGN

Mr. ENSIGN. Madam President, I rise to speak of a brave young nevadan, PFC Matthew Commons, who was killed in combat in Afghanistan. I am humbled and grateful that he was willing to make the ultimate sacrifice to preserve our freedom. For he is one of the noble soldiers of whom Thomas Jefferson spoke when he warned that ``the tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.'' In doing his duty for God and country, he gave up all so that we could grow and thrive and learn and love in the greatest Nation in the world. He is our fallen hero. A grateful Nation should never forget, he had family, friends, and plans for the future. He was just 21 years of age, old enough to dedicate his life to protecting our country, but too young to have a family of his own. His mother told me that one of the hardest burdens she now has to bear is the knowledge she will never get to hold Matthew's children. Matthew was an all-American kid, growing up in Boulder City. He ran track and played soccer at Boulder City High. He was elected secretary of his senior class. On September 11, al-Qaida terrorists attacked the United States. On March 4, Matthew Commons sought to make sure that would never happen again. He died to make sure that no American was left behind at the mercy of al-Qaida. His mission was a success. And his fellow soldiers endured heavy fire so that he, too, ultimately would come home from the front. In fighting for our Nation, he ensured that we would be free. In dying, he left in his wake the grief of those who knew and loved him, including his mother, Patricia Marek and his father, Greg Commons. God bless you, Matthew Commons. And God bless America. Would the senior Senator from Nevada like to make some comments?

Mr. ENSIGN

Mr. ENSIGN. Mr. President, it is an honor to come before the U.S. Senate today to lend my support to a man of the highest legal distinction, Judge Jim Madhan. A long-time resident of Las Vegas, NV, Judge Mahan began his studies not in our great State, but at the University of Charleston in Charleston, WV. Following graduation he attended graduate school before joining the U.S. Navy where he served until honorably discharged in 1969. Jim then studied and graduated from Vanderbilt University Law School. Following graduation, Judge Mahan began his work in Nevada, first as a law clerk and then as an associate attorney. In 1982 he formed the law firm of Mahan & Ellis, where he practiced law primarily in the areas of business and commercial litigation for 17 years. In February 1999, Judge Mahan's legal experience and expertise were recognized by Gov. Kenny Guinn, who named him as his first appointment to the Clark County District Court. Since taking the bench, Judge Mahan has heard civil and criminal matters involving a 3,000 case docket assigned to him. Judge Mahan's service on the bench has been of the highest order. He has overseen many of Nevada's most complex and controversial cases since taking the bench and has done so with great care, fairness, and prudence. In a survey conducted last year by Nevada's largest newspaper, Judge Mahan's retention rates scored the highest of any judge serving on State or local court in Nevada, and that includes the Nevada Supreme Court. Judge Mahan's extensive legal background and his commitment to public service make him an excellent choice as U.S. District Court Judge for the District of Nevada. I know his wife Eileen and his son James, Jr., are proud of him for being here today, and the State of Nevada is proud of Jim and all that he represents for our great State. I am proud to support Judge Jim Mahan before the Senate today.

Mr. ENSIGN

Mr. ENSIGN. I yield the floor to the senior Senator.

Mr. ENSIGN. Mr. President, I want to point out a couple other items in this report. First, when the inspector general was giving us the briefing, one of the things that was pointed out to us was that Winston & Strawn had actually recognized in some of their internal documents a potential conflict of interest. Some of their senior people said that we need to put up some firewalls within our firm to make sure if we have lawyers over here working one way, that they are in no way in concert with some of the lawyers working with DOE, say, versus the Nuclear Energy Institute. Those firewalls were never put in place. Let me repeat, those firewalls which could have potentially stopped the conflict of interest were never put in place. Instead, 14 lawyers worked on both sides. If this is not a conflict of interest, if this does not spark people's outrage, not only at this law firm--by the way, upfront this law firm was asked: Do you have any clients who would present a conflict of interest? When we let Government contracts, especially for law firms such as this, they are always asked that same question. From what I understand--and if the senior Senator, being a lawyer, will address this--there are people within law firms, there are ethical panels that review whether there are going to be problems representing one side or the other side to make sure that ethical violations do not occur simply because it is such a serious matter within the legal profession. Will the senior Senator from Nevada address how that is set up within law firms, the whole ethics committee, to make sure they do not have these conflicts of interest?

Mr. ENSIGN. I thank the senior Senator from Nevada. Back in July of this year, one of the local Las Vegas Sun reporters, Ben Grove, brought out in a news report that there was a potential conflict of interest involving a law firm based in Chicago, Winston & Strawn, which was representing not only the nuclear power industry but also the Department of Energy at the same time. We sent a letter together, dated August 1, to the Inspector General for the Department of Energy, asking that the inspector general look into this conflict of interest. Late yesterday afternoon, the inspector general met with the senior Senator from Nevada and myself and laid out the full report on their findings. As it turns out, the inspector general said that there has been virtually no clear evidence of a conflict of interest in his time period that he has been doing these types of investigations. From September 1999 until July 2001--and by the way, only because of the reporters bringing this thing to the public did Winston & Strawn terminate the relationship with the Energy Institute. But during that period of time, this law firm represented both the Department of Energy and the Nuclear Energy Institute. Now, to paint what was going on there, the DOE had hired this law firm to give them advice on the licensing process and the legal process for building a permanent repository at Yucca Mountain. During the time that they were supposed to be getting unbiased information, they were being retained by the lobbying group that is pushing Yucca Mountain to be built. This is a clear conflict of interest. There were over 14 employees, from what we read in the report. This report was released this morning publicly at 8 o'clock. It is on the Internet. But there were 14 employees that had done work both for the Department of Energy and for the Nuclear Energy Institute. Potentially, up to $16 million is the total amount of lawyer's fees that the DOE could be paying out to Winston & Strawn for supposedly getting unbiased information. So I tell the senior Senator from Nevada, with this information that we have received--and I know that my friend agrees--there should be a full investigation by the Department of Energy and by the Nuclear Regulatory Institute, and anybody else involved in the licensing of Yucca Mountain, of how severely tainted was the information they received on building Yucca Mountain. This is supposed to be unbiased science and legal information. Was the science biased now? Did the Department of Energy buy biased science? They have obviously bought biased legal work. So there needs to be a full investigation of this whole process. We have some very serious questions to come before the U.S. Senate next year. The Department of Energy is ready to make their recommendation in a favorable fashion on the suitability for Yucca Mountain. We think we need to put the brakes on all of this and take a whole fresh new look. So, Mr. President, I say to the senior Senator from Nevada that I think we have some serious, serious matters before us that need the attention of quite a few people as we are going forward.

Mr. ENSIGN. Mr. President, I want to point out one other item that is in this document to show what a conflict of interest we have. Winston & Strawn not only represented the Nuclear Energy Institute, but they also were representing a company that manufactured the nuclear waste containers. There is no company that would benefit more from having Yucca Mountain built than the company that builds these nuclear waste containers. If they are representing people who are going to benefit financially from this project going forward--obviously, the Nuclear Energy Institute does as well--clearly the people who make the casks to store the waste are going to benefit hugely financially. Those same lawyers representing this firm over here and also trying to give the Department of Energy unbiased information is so outrageous it is hard to even conceive. I hope all our colleagues will take a fresh look at this issue because the Senate is going to be dealing with some very serious issues when it comes to Yucca Mountain over the next 12 months. I hope, regardless of how people have voted in the past, that my colleagues will take a fresh look and say: Maybe we need a timeout on this issue. About $7 billion has already been spent on Yucca Mountain. We appropriated another couple hundred million dollars this year. We are talking a lot of money that is potentially being wasted, being put down a rat hole. All of your colleagues need to take a fresh look at this because the GAO has said it is going to cost over $50 billion more to finish this project. That is serious money, and we need to take a fresh look.

Mr. ENSIGN. If the Senator will yield, I will go even further and say that, in science, one of the reasons you even do what are called double blind studies is so that you don't prejudice yourself in going forward with a potential conclusion. What I mean by that--and I will try to give an example on this particular project--you would not want to have people who are saying upfront that Yucca Mountain is safe for a nuclear repository and, therefore, we are going to investigate it and prove that it is safe. You want people to look at it who are going to say: We don't know whether Yucca Mountain is safe or suitable for a nuclear repository or not, but we are going to do the investigation to find out whether it is suitable. That would be an unbiased view. And then on top of that, if you have people who have a financial interest giving you information, you can imagine how that can taint the whole process. I say to the senior Senator from Nevada that the potential for bias here in a scientific realm is very great and causes me great concern.

Mr. ENSIGN

Mr. ENSIGN. Madam President, let me start by thanking the chairman of the committee for moving this nomination forward. I also thank my fellow Senator, the distinguished Senator from the State of Nevada, for his support in helping to move this nomination forward. This was my first chance as a brand new Senator to have input on one of the most important things we do as Senators, and that is give recommendations to the President on who the Federal judges should be in our home States. It is my pleasure this day to lend my support to a man of the highest legal and personal distinction, Larry Hicks. A virtually lifelong northern Nevada resident, Mr. Hicks studied business administration at the University of Nevada, Reno. While he left Nevada for a few years to receive his legal education, Nevadans won't hold that against him, as we did not yet have our law school. However, I am proud to say that today Nevadans no longer have to leave their home State to receive a distinguished legal education, for the University of Nevada Las Vegas Boyd School of Law has rapidly become a recognized law school. He has used his legal aptitude to serve his community, his State, and the Nation. Immediately following graduation from law school, Mr. Hicks went to work for one of Nevada's premier legal minds in the Washoe County District Attorney's Office. Soon, Mr. Hicks was working full time to keep northern Nevada streets safe in his capacity as the chief criminal deputy DA, a position he filled for 3 years before being elected by a substantial margin to the office of district attorney. He held this position for 4 years before entering private practice. Mr. Hicks has been a partner in one of Nevada's largest law firms for over 20 years and has been chairman of its litigation section for the past 15. He is a fellow in the American College of Trial Lawyers, an organization which admits members by invitation only and is limited to no more than 1 percent of the lawyers in each State. Mr. Hicks was on the Board of Governors for the State Bar of Nevada for the better part of a decade, during which time he served in many roles, most notably as president during 1993-94. In the legal community, to receive the Presidential nomination to a Federal judgeship is one of the highest honors. Mr. Hicks now has the honor of receiving such a nomination twice. President George H.W. Bush nominated Mr. Hicks to the Federal bench in 1992. Unfortunately, because of things that happened in that political year, his nomination was never acted upon. But today, Larry has the historical distinction of being nominated by that President's son, President George W. Bush. Mr. Hicks not only takes pride in his work as a fine legal mind but also in his role as a husband and father. His three children have carried on their father's Nevada tradition and received their degrees from his alma mater, the University of Nevada, Reno. In fact, Larry's son Christopher carried on in his father's legal footsteps and attended the University of Nevada's Boyd School of Law. Madam President, I know his wife Marianne and their children are proud of Larry, and I know Nevada is proud of Larry. Along with the senior Senator from the State of Nevada, Harry Reid, I believe Larry Hicks is someone who will make an outstanding judge. I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, as a Nation we mourn the loss of so many Americans whose lives were tragically ended by these vicious attacks, the folks on the airplanes, the soldiers and civilians at the Pentagon, the office workers at the World Trade Center and the rescue workers who tried to save them. Each one of them had family, friends, and loved ones, and plans for the future. We cannot begin to fathom the incomparable grief their deaths have produced--of mothers who lost sons, husbands who lost wives, children who lost parents. While we bow our heads in prayer for those whose lives were taken, we remain unbowed in the face of this heinous assault on our Nation. The terrorists who perpetrated this crime may have succeeded in striking the symbols of American power, the World Trade Center and the Pentagon, but they cannot touch the spirit of the American people or our commitment to defend our liberty, our democracy and our way of life. I have full confidence that the United States has the will and ability to determine which terrorist group is responsible for this assault on our homeland, as well as those states that are giving them refuge, and those entities that are providing them aid and financial support. We must deliver a punishing blow to these terrorists and those who aid and abet them, because terrorists only understand one language, the language of force. Anything less than a full response to these cowardly attacks within our borders would be appeasement. And history shows that appeasement against a determined enemy only encourages more attacks. The terrorists who came to our country to kill and maim its citizens, along with those who protect them, must be made to pay a price. And the United States should be ready to act with a clear conscience in its self-defense. Let there be no doubt: We are at war. It is not a war we choose to fight, but one that we will finish and win. The last time an act of war was committed against the U.S. on our soil, at Pearl Harbor, our military and economic power combined to form the greatest fighting force the world had ever seen. Admiral Yamamoto had called us a ``sleeping enemy.'' He woke us to his great regret. The terrorists who committed these crimes have made a similar mistake, they have awoken a sleeping giant. Americans are slow to anger, but once roused we are indomitable. Today, the men and women in this great chamber are not Democrats or Republicans, but Americans. And as Americans, we in Congress stand united in support of our Nation's leader, the President of the United States. You will not hear partisan bickering. You will not see members trying to lead from Capitol Hill. The United States must speak with one voice and act in concert for the good of our nation. We will stand united, because Americans always unite in the face of adversity. We cannot allow these acts of terrorism to divide Americans by race, ethnicity, or religion. If we start fighting, neighbor against neighbor, then the terrorists have won. We will have destroyed the very foundation of our country's greatness, the fact that people of all backgrounds can join together in the great American experiment. As our Nation prepares to confront the threat of terrorism, we must be careful not to destroy the freedom which makes this country great. We must not abandon civil liberties within our borders or our ability to act unilaterally outside our borders if we want to be safe. As Thomas Jefferson warned us, ``Those who desire to give up Freedom in order to gain Security, will not have, nor do they deserve either one.'' Nevada is proud of our slogan, that we were ``Battle Born.'' It is on our State flag. It reflects the firmness of purpose and the willingness to fight for what is right that is so much a part of the character of the Nevadan people. This is as true today as it was when our state entered the Union during the Civil War. The nature of the challenges may have changed over the years, but not the nature of the Nevadans fighting to overcome them. I know that Nevadans--and, indeed, all Americans will rise to this challenge. We can give blood and donate to charities that are helping the victims like the Salvation Army and the Red Cross. We can go out to our front yards and proudly fly the American flag to send a signal across oceans that we will not be cowed by terrorists. The Nevadans in our Armed Forces stand ready to fight and die to defend their Nation. Let us pray for them, for all our men and women in uniform. Let us pray for President Bush our military leaders, and for all the rescue workers and victims. And most importantly, let us pray that, in this struggle between good and evil, the righteous will prevail.

Mr. ENSIGN

Mr. ENSIGN. Mr. President, on Thursday, July 19, I was unable to register my vote on rollcall vote No. 240, final passage of the fiscal year 2002 Energy and Water Development Appropriations Act. If I had been present to vote, I would have voted ``yea.''

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I rise to discuss the provision that funds Yucca Mountain in this appropriations bill. The senior Senator from Nevada has cut the funding that the President has requested, but Yucca Mountain is still being funded at somewhere around $275 million. Anybody who has been out to Yucca Mountain will see that they have spent a tremendous amount of money out there, to the tune of a little over $7 billion to this point. Most of the time people in this body are saying: Send more money to our State; build us more projects because they create economic opportunities. But both Senators from Nevada, and the majority of the people in Nevada, believe that the Yucca Mountain project is misguided. We feel this way for many reasons. One is, we believe it is not meeting the safety requirements that are necessary to have a permanent repository. Secondly, nuclear waste rods are really not just nuclear waste; they are partially spent nuclear fuel rods. They have a lot of valuable energy still in them. I applaud, first of all, Senator Domenici, for putting into this bill research money for accelerated technology for something called transmutation, which is a modern recycling technology for nuclear waste. The administration has also said we need to, perhaps, look at reprocessing or other alternatives for disposing of the waste, other than just burying it in a mountain. Doing that is the worst thing we can do instead of unlocking this untapped energy from these partially spent nuclear fuel rods buried in the mountain--just putting it in there; it is a very valuable resource. I believe it would be nuclear waste at that point because we would be wasting a valuable resource. What we should do instead of trying to build Yucca Mountain--the ratepayers from around the country have been paying into this fund. They say: Since we have been building this thing at $7 billion, we think the Federal Government should take the waste out there and finish the job. The problem with that is that Yucca Mountain, according to the GAO, is going to cost somewhere around $58 billion, and most people expect that number to go up much further than that. It will be the most expensive construction project in the history of the world. This construction project will be borne not just by the ratepayers when it gets up to those kinds of numbers but by the taxpayers of the United States. It is a waste of the taxpayers' dollars to bury a valuable resource in a mountain in the middle of the desert instead of recycling this fuel that is a non-greenhouse-producing fuel when we do it. The junior Senator from Texas just talked about the energy problems we have in this country. Let's not bury a valuable resource. Let's look at recycling technology to use this resource. I also add that there is no hurry. People say they are running out of room at these nuclear plants around the country. In one sense, that is true. The cooling pools in which these partially spent nuclear fuel rods are sitting today are being filled up, but the easy solution to that is to take them out of the cooling pools and put them in what are called dry cask canisters. That is being done in several places around the country even as we speak. It is a cheaper thing to do, and it is also a better thing to do. By the way, dry cask storage is safe, by all estimates, for a conservative 100 years. That gives our country time to look into these new technologies about recycling. I suggest that the people who are supporting taking nuclear waste to the State of Nevada should look at these new technologies and focus our resources there, instead of trying to put more money into really what is becoming a white elephant out in the State of Nevada. I yield the floor.

Mr. ENSIGN

Mr. ENSIGN. I ask that the yeas and nays be vitiated.

Mr. ENSIGN. Mr. President, I understand both sides have agreed to this amendment. It has to do with genetic testing. We debated it last night. I appreciate Senators Kennedy, Gregg, and McCain working together, along with the White House, to make sure we are not discriminating against people based on genetics; that people with the breast cancer gene or colon cancer gene, or whatever gene they may have been born with, will not be discriminated against in the future. I appreciate everybody working with us on this matter.

Mr. ENSIGN. I withdraw my unanimous consent request.

Mr. ENSIGN. I ask unanimous consent action with respect to Ensign amendment No. 849 be vitiated and the Senate vote in relation to the amendment following the disposition of the Kyl amendment, with up to 10 minutes equally divided for debate prior to that vote.

Mr. ENSIGN. Mr. President, I call up amendment numbered 849 and I send a modification to the desk.

Mr. ENSIGN

Mr. ENSIGN. Madam President, this morning the Senator from North Dakota got up and spoke about a young man by the name of Chris Roe from my State. He said this young man's parents would have been covered under this bill. But according to the Department of Labor, the protections in this bill do not apply to collective bargaining agreements. Because Chris Roe's parents were under a collective bargaining agreement--as a matter of fact, that collective bargaining agreement does not expire until years from now--the Roes would not be covered. Chris Roe is no longer with us, but people in the future like him should be able to be covered under the same patient protections as everybody else under this bill. I urge the adoption of this amendment.

Mr. ENSIGN. Madam President, I am going to ask unanimous consent in a moment to temporarily lay this amendment aside so we can work out the language. There seems to be support on both sides of the aisle for this amendment. There is just slight disagreement on the language. I ask unanimous consent that my amendment No. 849 be temporarily laid aside to recur at the concurrence of the bill managers.

Mr. ENSIGN. Madam President, we can actually have a vote on this amendment. This amendment is about protecting health care providers who voluntarily give of themselves, give of their services, and this amendment will protect them from being sued. Last night in the debate, the Senator from North Carolina mentioned the Volunteer Protection Act of 1997 already takes care of the health care providers. In fact, it does not. It defines a volunteer as ``an individual performing services for a nonprofit organization or governmental entity who does not receive compensation or any other thing of value in lieu of compensation.'' I was speaking to one of my neighbors. He is a general surgeon. He was just in an emergency room last week. He saw a patient who did not have health insurance, could not afford to pay, and he voluntarily saw this patient. I do not think it would be right for people to volunteer and then be sued. My amendment says if, out of the goodness of your heart, you work at a clinic, such as Dr. Chanderraj, a friend of mine who is a cardiologist in Las Vegas--he takes care of the poor on the weekends, and yet he has to carry malpractice insurance. Many doctors and health care providers who volunteer their services for the poor should be encouraged, not discouraged, to give their services. I urge the adoption of this amendment. It is the right thing to do, just as the Good Samaritan Act and the Volunteer Protection Act of 1997 were the right things to do.

Mr. ENSIGN. Mr. President, this pro bono amendment will benefit doctors across the country. A prime example is my neighbor, Dr. Dan McBride. Dr. McBride has provided medical care to individuals and families free-of-charge for years. He understands that not all Nevadans can afford health care insurance each month, and that many cannot even afford to go to the doctor once each year; but that does not mean that they are not deserving of proper health care. This amendment will ensure that doctors such as Dan McBride can continue providing free health care to the less fortunate without fear of lawsuits. amendment no. 849

Mr. ENSIGN

Mr. ENSIGN. Mr. President, I ask that further reading of the amendment be dispensed with.

Mr. ENSIGN. Mr. President, I call up amendment No. 848 and ask for its immediate consideration.

Mr. ENSIGN. Madam President, I have a story that was told by the junior Senator from North Dakota on the Senate floor the other day. It is about a young man, Christopher Thomas Roe, who is from Nevada. He was attending Durango High School and was diagnosed with acute lymphocytic leukemia. As anybody who has had a child with that terrible disease knows, sometimes the treatments are not very successful. During the course of his treatment, the doctors were recommending a certain type of experimental treatment, and as we have heard throughout this bill, sometimes that experimental treatment has to be had at a certain time of treatment, and waiting for its approval sometimes leads to that treatment not being able to be given to that patient. That is exactly what happened to Christopher Thomas Roe. He was not able to receive this type of a treatment in a timely manner. His father is a school district employee in the State of Nevada. He is not a teacher, but he is an employee of the school district. There is an employee trust fund that has been set up to provide health insurance to school district employees. Based on our discussions with the Department of Labor, this trust fund, because of the way it was set up, would not be covered under the provisions of this bill. Similarly, the 30 million people Senator Nickles is talking about who deal with collective bargaining agreements are not covered adequately under this bill. If we are going to say to other people that they deserve these rights, we believe that people who are in unions deserve the same patient protections. These patient protections right now do not just deal with lawsuits, they deal with provisions that everybody agrees with in the bill: The right of a woman to choose an OB/GYN as her primary doctor; the right of a family to say their children's primary care doctor is a pediatrician; the right to a reasonable layman's interpretation of whether emergency room care should be paid for when they have an emergency. These patient protections we believe are very important to give not only to the 170 million people who are covered by the underlying bill, but also those who are covered in collective bargaining agreements. If there is tweaking of the language that needs to happen with this amendment, then let's tweak the language. The bottom line is this is not an anti-union agreement. This amendment says we want union workers to have the same rights as other people. I would think the other side of the aisle, who are generally in favor of union workers, would be on our side on this amendment. If the other side thinks this amendment needs a little tweaking, maybe we can do that, but right now as we read the bill, as we have had some of the legal experts look at the bill, collective bargaining agreements would supersede and not allow union workers who are covered under those collective bargaining agreements to be covered under this Patients' Bill of Rights. I urge our colleagues to work with us and to make sure those union workers get the same protections as other people in America are going to receive. I yield the floor.

Mr. ENSIGN. Madam President, I call up amendment No. 849 and ask for its immediate consideration.

Mr. ENSIGN. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.