Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. I ask unanimous consent the reading of the amendment be dispensed with.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. FEINGOLD. Mr. President, I send an amendment to the desk.

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

Mr. FEINGOLD. Mr. President, I would like to withdraw that amendment. I had intended to call up another amendment which has to do with the special inspector general for Iraq. Will the Chair tell me what the number of that amendment is? I have to clarify the number of this amendment. In light of that, I yield the floor so Senator Schumer can speak.

Mr. FEINGOLD. Mr. President, I thank my colleagues for their patience. I had identified the wrong amendment. I got that clarified. What I wish to tell my colleagues is that this amendment strengthens the Special Inspector General for Iraq and ensures that U.S. taxpayer dollars will be spent wisely, efficiently, and within the law. The Special Inspector General for Iraq, known as ``SIGIR,'' was established in 2003. I worked hard with a few of my colleagues in creating this office to monitor, audit, and report on the expenditure of billions of U.S. taxpayer dollars that this body appropriated to the Iraq Relief and Reconstruction Fund. My amendment is relatively simple. It recognizes the fact that we need to continue to ensure oversight and monitoring of U.S. taxpayer dollars that continue to support reconstruction efforts in Iraq, which includes over $1.6 billion in the latest supplemental for Iraq reconstruction and in the fiscal year 2006 foreign operations bill. It increases the mandate of the Special Inspector General for Iraq, while also extending the period for which that office will be in existence. This amendment will strengthen the capabilities of the Special IG to monitor, audit, and inspect funds made available for assistance for Iraq in both the Iraq Relief and Reconstruction Fund--IRRF--and in other important accounts. I offer this amendment today because it is my firm belief that we should not be pouring tens of billions of dollars into Iraq reconstruction without ensuring there is appropriate oversight and auditing. American taxpayers deserve to know where their money is going in this costly war and that it is being used effectively and efficiently and ending up in the right place. The SIGIR's work to date has been extremely valuable to the U.S. Government and to Congress. The SIGIR has now completed over 55 audit reports, issued over 165 recommendations for program improvement, and has seized $13 million in assets. Overall, the SIGIR estimates that its operations have resulted in saving the U.S. Government over $24 million, in addition to the considerable wasteful or fraudulent spending that office has uncovered. Throughout 2005, the Iraq IG provided aggressive oversight to prevent waste, fraud and abuse in the at-times lethal operating environment in Iraq. Its emphasis on real-time auditing--where guidance is provided immediately to management authorities upon the discovery of a need for change--provides for independent assessments while effecting rapid improvements. In its January report to Congress, the SIGIR concluded that massive unforeseen security costs, administrative overhead, and waste have crippled original reconstruction strategies and have prevented the completion of up to half of the work originally called for in critical sectors such as water, power, and electricity. The Iraq IG's work has resulted in the arrest of five individuals who were defrauding the U.S. Government, and it has shed light on millions of dollars of waste. It is this kind of investigation and reporting that helps shape the direction of reconstruction funding and ensures that the money is being used and allocated as transparently and effectively as possible. I pushed to create the Special Inspector General for Iraq in order to ensure that there is critical oversight of the Iraq Relief and Reconstruction Fund allocated for Iraq reconstruction projects. Last year I fought to extend the life of this office, and my amendment today will ensure that the SIGIR has the capability and the life-span to finish up work associated with monitoring, evaluating, and reporting on how U.S. taxpayer dollars are being spent in Iraq for reconstruction purposes. Let me talk briefly about what my amendment actually does. Because current legislation requires that the SIGIR continue its work until 80 percent of the IRRF had been expended, and unless we do something to change this, the SIGIR will cease to exist before U.S. taxpayer dollars going to Iraq reconstruction have been expended. This means that despite the fact that we continue to support Iraq reconstruction efforts, we are removing our ability to oversee billions of taxpayer dollars. To help avoid this potentially costly and unnecessary challenge, this amendment considers any money going to Iraq reconstruction efforts-- regardless of whether or not it is in the IRRF--be subject to the SIGIR's oversight mandate. It will also help determine when we can ask the SIGIR to stand down. This amendment is common sense. The SIGIR's great work has more than paid for itself, and it has developed a capacity that is unparalleled by either DoD or State's inspector general offices. The SIGIR is doing great work, and I, along with my distinguished colleagues Senator Levin and others, believe that this small change in the law will allow us to tell our constituents that we are making every effort to ensure that their hard-earned taxpayer dollars are being used in the most effective way possible. Let's support the SIGIR, and lets give it the time and mandate to monitor Iraq reconstruction funds. I ask for the yeas and nays.

Mr. FEINGOLD. Mr. President, if it is all right with the Senator from Virginia, it is my understanding that it will be taken by voice vote.

Mr. FEINGOLD. I want to be make sure it has been cleared on the other side.

Mr. FEINGOLD. That is correct.

Mr. FEINGOLD. Mr. President, I thank both the ranking member and chairman for their comments and support. My understanding is the chairman wants to take this by voice vote. Therefore, I ask the yeas and nays be vitiated.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, today I voted in favor of the fiscal year 2006 Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery conference report despite my serious reservations about using an emergency supplemental bill to fund ongoing U.S. operations in Iraq and Afghanistan and despite the fact that the bill fails to change the flawed and dangerous policy in Iraq that this administration is pursuing. That policy is taking a tremendous toll on our Nation's resources and our national security, and I will continue to look for every opportunity to force the Senate to debate and vote on changing that policy. I supported the conference report because it included necessary funding for our troops, along with vital assistance to those communities devastated by Hurricanes Katrina and Rita and to those suffering in war-torn countries and those countries in need of immediate funding for their newly formed democracies. I am particularly pleased to see that $618 million is being provided for establishing peace in Darfur and $63 million for supporting the nascent Liberian Government that was recently elected.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, we will shortly be voting on what will presumably be the 28th amendment to the U.S. Constitution. We all know the outcome of that vote. The amendment will fall well short of the 60 votes required for cloture, let alone the 67 votes required to pass a constitutional amendment, so it will fail, as it did 2 years ago. I am pleased that the Senate will reject this amendment. I am heartened so many Senators have come to the Senate to speak out strongly against this misguided proposal, but I am saddened that once again the Senate has spent several days on such a divisive and unneeded proposal, a proposal that pits Americans against one another. I think it appeals to people's worst instincts and prejudices. The arguments made by supporters of the amendment simply do not hold up under scrutiny. Supporters argue that Federal courts are basically on the brink of recognizing same-sex marriage and that States may be forced to recognize same-sex marriage performed in other States. Of course, neither of these things have happened, and no one has explained why we should do a preemptive strike on the basic governing document of the country to address a hypothetical future court decision. Supporters talk about traditional marriage but in some ways have very little respect for the traditional role of the States in regulating marriage. If they did, they would not be trying to impose a restrictive Federal definition of marriage on all States for all time. The supporters argue that this amendment will not effect the ability of State legislatures to extend benefits to same-sex couples or enact civil unions, but as I tried to point out in some depth yesterday, even the legal experts who would support this constitutional amendment cannot even agree about its potential effect and scope. We are not talking about putting together a statute; we will put this into the Constitution. Supporters rail against activist judges. But if this vaguely worded amendment ever passes, it will result in substantial litigation. What are the legal incidents of marriage? Is a civil union a marriage in all but name and therefore subject to the amendment? Judges would have to answer these and other questions that the supporters of the amendment have so far failed to resolve. There is certainly a rich irony in that. We have heard moving speeches, and I do not doubt the sincerity of the speakers, about the central role and volume of marriage in our society. What I still do not understand, and what the supporters of the amendment have failed to demonstrate, is why we should prevent States from deciding to open this institution to men and women who happen to be gay and lesbian all over the country. Married heterosexual couples are shaking their heads and wondering, how, exactly, the prospect of gay marriages threatens the health of their marriages. This amendment would make a minority of Americans permanent second- class citizens of this country. It would prevent States, many of which are grappling with the definition of marriage, from deciding that gays and lesbians should be allowed to marry. It may even prevent States from offering certain benefits of marriage to same-sex couples through civil union or domestic partnership legislation. And it would write discrimination into a document that has served as a historic guarantee of individual freedom. Gay Americans are our neighbors, our friends, our family members, and our colleagues. Millions are loving parents in strong and healthy families. Let's not demonize them. Let's not play upon fears. Let's not use them as scapegoats for perceived social problems. Let's allow--in fact, let's encourage--States to extend rights and responsibilities to these decent, loving, law-abiding families. We can start today by rejecting this unnecessary, mean-spirited and poorly drafted constitutional amendment. I yield the floor and suggest the absence of a quorum.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

Mr. FEINGOLD. Mr. President, I ask the time during the quorum call be equally divided on both sides.

Mr. FEINGOLD. I suggest the absence of a quorum.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, it was 25 years ago this week that a little-noticed report from the Centers for Disease Control documented a peculiar cluster of deadly pneumonia cases in Los Angeles. That report was the first official mention of AIDS, although the disease had no name at the time. Since 1981, AIDS has become an international human catastrophe, killing more than 25 million people, orphaning more than 15 million children, and infecting more than 65 million people. Today, there are 40 million people living with HIV. This issue affects us on both a global and a domestic scale. There are over 1.2 million people in the United States living with HIV/AIDS, and there are over 40,000 new infections each year. While the United States made great strides to contain the disease and reduce the number of deaths throughout the 1990s, it now appears that this trend is reversing. The death rate is beginning to destabilize, and the infection rate is growing at a staggering rate among certain populations, particularly people of color. African Americans have the highest AIDS case rates of any racial or ethnic group--more than nine times the rate for Whites. There is still much to be done in the United States to combat HIV/ AIDS, but the prevalence of HIV/AIDS in the rest of the world, particularly in sub-Saharan Africa, is truly devastating. In my role as ranking member of the Africa Subcommittee of the Senate Foreign Relations Committee, I have seen firsthand the devastation this disease has caused in Africa. Africa has accounted for nearly half of all global AIDS deaths, and it is estimated that by the year 2025 the total number of HIV infections in Africa could reach an astounding 100 million. In some African countries, the disease has caused the average life expectancy to drop below 40. HIV/AIDS has ravaged countries, economies, and families. The most vulnerable in our global society are in many cases those who are most at risk from HIV/AIDS. Women and girls, who in Africa are often left physically, economically, and politically vulnerable, suffer disproportionately from HIV/AIDS. Nearly 60 percent of all people living with HIV in Africa are women; girls in sub-Saharan Africa aged 15 to 19 are infected by HIV at rates as much as five to seven times higher than boys their age. Gender inequalities, cultural norms, transactional sex, and all forms of violence against women and girls increase their susceptibility to HIV/AIDS. Women and girls desperately need legal protection and economic empowerment so that they can make safe health choices. These are fundamentally connected issues. There is some cause for hope in our battle against this terrible disease; the United States has committed an unprecedented amount of money to the fight, and we are beginning to see some results. This is no cause for complacency, however. According to a recent U.N. report, while the spread of HIV/AIDS appears to be slowing down worldwide and some countries are reporting progress in bringing the pandemic under control, others are failing to reach key targets for prevention and treatment. Most troubling is the fact that the rate of new HIV infections dramatically outpaces current efforts to reach people with life- sustaining antiretroviral therapy. According to Family Health International, for each new person who received antiretroviral therapy in 2005, another seven people became infected. We must bring increased focus to prevention efforts and do a better job of reaching out to those who are most vulnerable to this disease. It is also becoming increasingly clear that we cannot address HIV/ AIDS in isolation and that we need to deepen coordination between HIV/ AIDS initiatives and other development goals. HIV/AIDS does not just affect isolated individuals but families, communities, and entire economies. One problem that has become apparent as we commit increasing funds to address HIV/AIDS is that international AIDS programs are siphoning off trained local health care workers from national health care systems. The World Health Organization has reported that the total number of health care workers per 1,000 people in Africa is 2.3--less than one-tenth the density in the Americas. This ``brain drain'' issue must be addressed. We need to strengthen national health and social systems by integrating HIV/AIDS intervention into programs for primary health care, mother and child health, sexual and reproductive health, tuberculosis, nutrition, and education. Not only will it be more cost-efficient to work with existing systems, but it will also increase access for people who otherwise might not seek out counseling, testing, or treatment. As we look ahead to the next 5, 10 years and beyond, strong national health systems will be crucial for sustainability. The 25-year anniversary of this terrible disease is an opportunity to take stock of where we have been and to renew our commitment to overcoming the challenges that lie ahead in the fight against HIV/AIDS.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, first let me praise the Senator from New Jersey and associate myself with his excellent remarks in opposition to this amendment both on marriage and with regard to the obvious point that we should be working on issues affecting the American people. The Constitution of the United States is a historic guarantee of individual freedom. For over two centuries, it has served as a beacon of hope, an example to people around the world who yearn to be free and to live their lives without Government interference, with their most basic personal decisions. I, like everyone else in the Senate, took an oath when I joined this body to support and defend the Constitution. I am saddened, therefore, to be once again debating an amendment to our Constitution that is so inconsistent with our Nation's history of expanding and protecting freedom. There are serious issues facing this Congress. The fight against terrorism, the war in Iraq, health care, high gas prices, relief and recovery after Hurricane Katrina, the economy. These are the issues upon which the American people are demanding that Congress act. But instead, we are spending much of this week debating the poorly thought out, divisive, and politically motivated constitutional amendment that everyone knows has no chance of success in the Senate. The proposed constitutional amendment before the Senate today, Senate Joint Resolution 1, has no better chance of getting a two-thirds majority in the Senate than it did in 2004, which was another election year. There are no new court decisions that supporters of the amendment can legitimately argue make it any more imperative now than it was then that such an amendment be passed. Yet the Judiciary Committee was ordered to mark up this amendment to fit a schedule announced by the majority leader months ago. This is pure politics, an election-year gambit. We should not play politics with the Constitution, nor should we play politics with the lives of gay and lesbian Americans who correctly see this constitutional amendment as an effort to make them permanent second- class citizens. The amendment we are all debating will not pass, but it still risks stoking fear and divisiveness at a time when we should be trying to unite Americans. Gay and lesbian Americans are our friends, our family members, our neighbors, our colleagues. They should not be used as pawns in a cynical political exercise. Backers of the amendment say they want to support marriage. But this debate is not really about supporting marriage. We all agree that good and strong marriages should be supported and celebrated. I happen to believe that two adults who love each other and want to make a lifelong commitment to each other, with all of the responsibilities that that entails, should be able to do so, regardless of their sex. I know others strongly disagree. The debate we are having in the Senate, however, is not about whether States should permit same-sex marriage. The debate is about whether we should amend the Constitution of the United States to define marriage. The answer to that question has to be ``no.'' It is unnecessary and wrong for Congress to legislate for all States, for all time, on a matter that has been traditionally handled by the States and religious institutions since the founding of our Nation. For that reason alone, this amendment should be defeated. There is no doubt that the proposed Federal marriage amendment would alter the basic principles of federalism that have served our Nation well for over 200 years. The Framers of our Constitution granted limited, enumerated powers to the Federal Government, while reserving the remaining powers of government, including family law, to State governments. Marriage has traditionally been regulated by the States. As Professor Dale Carpenter told the Constitution Subcommittee in its first hearing on this topic nearly three years ago, ``never before have we adopted a constitutional amendment to limit the States' ability to control their own family law.'' That is exactly what this proposed amendment would do. It would permanently restrict the ability of States to define and recognize marriage or any legally sanctioned unions as they see fit. One of our distinguished former colleagues, Republican Senator Alan Simpson, opposes an amendment to the Constitution on marriage. In an op-ed in the Washington Post, he stated: In our system of government, laws affecting family life are under the jurisdiction of the states, not the federal government. This is as it should be. . . . [Our Founders] saw that contentious social issues would be best handled in the legislatures of the states, where debates could be held closest to home. That's why we should let the states decide how best to define and recognize any legally sanctioned unions--marriage or otherwise. Columnist William Safire has also urged his conservative colleagues to refrain from amending the Constitution in this way. Commentator George Will takes the same position. I recognize that the current debate on same-sex marriage was hastened by a decision of the highest court in Massachusetts issued in late 2003. That decision, in a case called Goodrich, said that the State must issue marriage licenses to same-sex couples. But the court did not say that other States must do so, nor could it. And it did not say that churches, synagogues, mosques, or other religious institutions must recognize same-sex unions, nor could it. Even Governor Romney of Massachusetts, who testified before the Judiciary Committee in 2004, admitted that the court's decision in no way requires religious institutions to recognize same-sex unions. No religious institution is required to recognize same-sex unions in Massachusetts or elsewhere. That was true before the Goodrich decision, and it remains true today. Indeed, as time has passed since the Massachusetts court ruling, I think it has become clear that passing a constitutional amendment would be an extreme and unnecessary reaction. States are in the process of addressing the issue of how to define marriage. Voters in several States passed marriage initiatives in the last election. The legislature in Connecticut recently passed a civil union bill and the Governor signed it. In California, a bill passed by the legislature to permit same-sex marriages was vetoed but new protections for domestic partners were signed into law. The States are addressing the issue in different ways, which is how our Federal system generally works. I may agree with some State actions and disagree with others, but it would be a tragic mistake to cut this process off prematurely. I was particularly struck by reports on what happened recently in the Massachusetts Legislature. The legislature narrowly passed a constitutional amendment in 2004 to prohibit same-sex marriage, but when the amendment returned in 2005, as the Massachusetts Constitution requires in order to put it on the ballot, the legislature rejected it by a vote of 157 to 39. Many supporters of the amendment apparently changed their minds. So we should think long and hard about pre-empting State legislatures or State initiative processes through a Federal constitutional amendment that freezes in place a single, restrictive definition of marriage. The supporters of the Federal marriage amendment would have Americans believe that the courts are poised to strike down marriage laws. They suggest that we will soon see courts in States other than Massachusetts requiring those States to recognize same-sex marriages, too. Of course, no such thing has happened in the 2 years since the Goodrich decision went into effect in May 2004. So this is a purely hypothetical issue-- hardly a sound basis for amending our Nation's governing charter. And even if another State followed Massachusetts, either by legislative action or a judicial ruling, I believe it would be a grave mistake for Congress to step in. As Professor Lea Brilmayer testified before the Constitution Subcommittee in 2004, and as remains true today, no court has required a State to recognize a same-sex marriage performed in another State. And as Professor Carpenter testified: the Full Faith and Credit Clause has never been understood to mean that every state must recognize every marriage performed in every other state. Each state may refuse to recognize a marriage performed in another state if that marriage would violate the public policy of that state. In fact, Congress and many States have already taken steps to reaffirm this principle. In 1996, Congress passed the Defense of Marriage Act, a bill I did not support, but that is now the law. Section 2 of DOMA is effectively a reaffirmation of the full faith and credit clause as applied to marriage. It states that no State shall be forced to recognize a same-sex marriage authorized by another State. In addition, 38 States have passed what have come to be called ``State DOMAs,'' declaring as a matter of public policy that they will not recognize same-sex marriages. There has not yet been a successful constitutional challenge to the Federal or State DOMAs. In fact, three such challenges have already failed. Of course, it is possible that the situation could change. A case could be brought challenging the Federal DOMA or a State DOMA, and the Supreme Court could strike it down. But do we really want to amend the Constitution simply to prevent the Supreme Court from reaching a particular result in the future? What kind of precedent would such a preemptive strike against the governing document of this Nation set? Former Representative Bob Barr, the author of the Federal DOMA, strongly opposes amending the Constitution on this issue. He believes that amending the Constitution with publicly contested social policies would ``cheapen the sacrosanct nature of that document.'' He also warned: We meddle with the Constitution to our own peril. If we begin to treat the Constitution as our personal sandbox, in which to build and destroy castles as we please, we risk diluting the grandeur of having a Constitution in the first place. My colleagues, those are the words of the author of the Federal DOMA statute. That is what he said about the wisdom of trying to amend the Constitution in this manner. I have spoken with Mr. Barr about this. He and I disagree about many things. But we agree wholeheartedly that the Constitution is a very special document and that amending it to enact the social policy of the moment would be a grave mistake. So far I have been discussing the general arguments against a Federal constitutional amendment defining marriage. I think they are compelling. But I also want to take some time today to discuss the specific text we are now considering: S.J. Res. 1, the so-called Marriage Protection Amendment. The amendment states: Marriage in the United States shall consist only of the union of a man and a woman. That is what we have come to refer to as sentence one. The amendment continues in sentence two: Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman. Before I discuss some of the ambiguities in this language, let me first remind my colleagues that this whole effort has often been portrayed by its proponents as a reaction to so-called ``liberal activist judges'' reinterpreting marriage. Time after time, we are told that judges have made law, in cases like the Supreme Court's decision in Lawrence v. Texas that State sodomy laws are unconstitutional, in the Massachusetts decision in Goodrich, and in the Vermont State court decision that forced the State legislature to adopt a civil unions law. This amendment is needed, we are told, to counteract and correct those missteps and to make sure they don't happen again. Keep that underlying concern in mind as we discuss the ambiguities of this language and who will ultimately decide how they are to be resolved. A question that is important to many Senators, and to many Americans, as they consider this constitutional amendment is how it will apply to laws passed by State or local governments granting same-sex couples the right to enter into civil unions or domestic partnerships to become eligible for government recognition of their relationships and for certain benefits. One of the witnesses at the last hearing we held in the Subcommittee on the Constitution, Professor Michael Seidman, from Georgetown University Law Center, testified quite convincingly about the ambiguity of the language of this amendment on that question. And so chairman of the subcommittee asked if he had thought about how to draft the amendment to, as he put it, ``hit the mark.'' Professor Seidman responded: Part of the problem is I think the people behind the amendment themselves are not in agreement on how to go. . . . So with respect, Senator, I think you guys have to get straight what you want before you tell me how to go about drafting it. At the last subcommittee hearing on this topic, I asked the witnesses that subcommittee Chairman Brownback had called some specific questions about this issue and then I asked them to respond to written questions about how they believe S.J. Res. 1 would apply to a challenge brought against specific State legislative actions. I have asked these questions of previous witnesses as well, and I have seen statements from many of the supporters of the amendment. I think Professor Seidman is absolutely right. It is simply not clear what the sponsors of this amendment intend. Let's start with civil unions. Would this amendment outlaw civil unions? Specifically, would the recently passed Connecticut statute that establishes civil unions in that State be unconstitutional under this amendment? The Connecticut statute provides as follows: Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in a marriage, which is defined as the union of one man and one woman. Professor Richard Wilkins, from Brigham Young University, whom I understand was consulted in the drafting of the amendment, answered my written question as follows: ``The language quoted from Section 14 of the Connecticut statute would not be unconstitutional under the proposed amendment.'' But Professor Gerard Bradley, from Notre Dame, another drafter of the amendment, testified as follows at our hearing in April: The amendment leaves it wide open for legislatures to extend some, many, most, perhaps all but one, I suppose, benefit of marriage to unmarried people, but I would say if it is a marriage in all but name, that is ruled out by the definition of marriage in the first sentence. And Professor Christopher Wolfe, from Marquette University, another witness from the subcommittee's last hearing, agrees with Professor Bradley. He said the following in answer to my written question: I think Connecticut's civil union scheme, which was enacted by the General Assembly without any judicial involvement, would be unconstitutional under the Marriage Protection Amendment, because it effectively authorizes marriage for unions of two men or two women, since the only difference between civil unions and marriage is the name. Groups supporting the amendment like the Alliance for Marriage and Concerned Women for America seem to think the amendment will permit legislatures to enact civil union legislation. In a radio interview during the Senate's consideration of the amendment in 2004, Bob Knight, the head of that Concerned Women for America, suggested that wasn't such a good thing. He said: The second sentence was so convoluted that many legal scholars disagreed about what it actually meant, and its backers assured everyone that it meant States could pass civil unions, which is not the way to protect marriage. Civil unions are gay marriage by another name. As recently as November 2005, the Web site of the Alliance for Marriage had the following explanation of a chart in which it says that ``quasi-marital schemes'' such as civil unions would be permitted if adopted by a State legislature rather than imposed by court: The second sentence ensures that the democratic process at the state level will continue to determine the allocation of the benefits associated with marriage. Interestingly, this chart no longer appears on the Web site. I won't speculate about why that is, but it does seem like an important question for supporters of this amendment to get their stories straight on. There are States in the country today that authorize civil unions. How would this constitutional amendment affect those laws? We know what the supporters of the amendment intended with respect to the law in Massachusetts, but what about in Vermont, and Connecticut, and California, and New Jersey? What are duly elected State legislatures, in the exercise of their responsibility to enact laws consistent with the values and preferences of their citizens, allowed to do, and what are they prohibited from doing? Don't they deserve to know? I could go on and on here, but let me mention Professor Scott Fitzgibbon of Boston College Law School, who also testified in support of the amendment at the subcommittee's last hearing. Mr. Fitzgibbon simply declined to answer when I asked him at the hearing whether the amendment would allow a State employer to give benefits to unmarried domestic partners of its employees. And he also refused to answer a followup written question about whether Connecticut's civil union law would be constitutional. But he did say the following at the hearing: I am just going to say that the degree of ambiguity . . . isn't such a terrible thing. This isn't part of the tax code. It is proposedly [sic] a part of the United States Constitution and constitutional provisions rightly leave some scope for later determination. So there you have it, Mr. President. The supporters and drafters of this amendment can't agree on how it would affect civil union laws like the one recently enacted by the democratically elected legislature of the State of Connecticut. And at least one of them says that ambiguity is not such a terrible thing. It is normal for constitutional provisions to leave ``some scope for later determination'' he says. So who will decide this question, which everyone can anticipate will be raised if this amendment becomes part of the Constitution? Who is responsible in our legal system for making a ``later determination,'' as Professor Fitzgibbon calls it, of the meaning of a constitutional amendment? You guessed it. It is the courts! Given how this whole exercise of trying to define marriage in the governing document of our country started--outrage over a State court's interpretation of a State constitution and fear of supposedly ``activist judges'' taking it upon themselves to redefine marriage-- that is ironic indeed. Now Professor Wolfe had an interesting suggestion when he answered my written questions concerning the California and New Jersey domestic partner statutes. Last summer, the California Legislature enacted a statute that grants all the same rights to domestic partners as it does to married spouses, except the right to file a joint tax return. All the rights and benefits but one. Under Professor Bradley's interpretation, that's probably okay. Professor Wilkins agrees that California's statute would survive a challenge. The chart that used to be on the Alliance for Marriage's Web site also agrees. I think a few of my colleagues made similar statements yesterday on the floor. But Professor Wolfe isn't so sure. He says in his written response to my question: It could be argued that it is unconstitutional under the Marriage Protection Amendment for the same reason that the Connecticut civil union law is unconstitutional, since--even though one provision provides one exception--the general principle of the law (in Sec. 4) defines the domestic partnership as being equivalent to marriage. The single exception could easily be viewed as merely an evasive maneuver to avoid a pure equivalence that would make the statute constitutionally vulnerable. It could also be argued, however, that there is a difference between this domestic partnership law and marriage (beyond just the name), and therefore domestic partnership is not marriage in everything but name, and therefore it is within the constitutional power of the California legislature to pass. . . . In a close case like this, I think the legislative history would be likely to play a determinative role in the final decision. He goes on in an answer concerning the New Jersey domestic partnership statute to make his suggestion: Of course, it would be desirable to clarify this question, if possible. For example, offering an unambiguous statement of the meaning of the amendment in the legislative history (e.g., the committee report on the amendment, and representations--uncontradicted by other supporters of the amendment--of the amendment's sponsors in floor debate) would be likely to have a substantial impact on how the amendment would be understood by those who have to vote on it, in Congress and in State legislatures. Well there's a novel idea. Let's have an ``unambiguous statement'' of the meaning of the amendment, uncontradicted by other supporters of the amendment. But Professor Wolfe, a supporter of the amendment, doesn't know what it is. He answered my questions as if they were a law school exam hypothetical. This amendment has been around for nearly 3 years and we still don't have that unambiguous statement. Will we get one in this debate on the floor? I don't know. I do know that some of the most ardent supporters of the amendment in the Senate are strongly opposed to civil unions as well. But will the amendment they wrote to supposedly protect marriage outlaw civil unions and domestic partnerships? It is not clear to me yet, and when we are talking about amending the Constitution of the United States, I think it should be. The Senate and State legislatures--not to mention the American people--deserve clear and reliable answers to these questions before they are asked to decide whether to amend the Constitution. So I would hope that every Senator who is planning to vote ``yes'' on this amendment today will tell us before we conclude this debate what he or she thinks the amendment means and how it would apply to State statutes already on the books, as well as others that might be passed. Maybe we will get that unambiguous statement we have waited so long for. Then again, maybe we won't. Even though Professor Wolfe answered my question as if it were a law school exam--saying ``it could be argued on the one hand. . . . But on the other hand''--this is not just an academic exercise. It will have an impact on the lives of millions of Americans. Mr. President, as you can tell, I am very concerned about the Senate considering this amendment on the floor without any certainty about what it means or how it will be applied. Fortunately, it seems clear that supporters of this amendment don't have the votes to pass it in the Senate. So the lack of clarity has no real world repercussions for now. But it is extremely disappointing that we may vote in the United States Senate on an amendment to the Constitution of the United States with such basic questions unresolved. The Judiciary Committee should have fully explored these questions. Instead, because of the rigid schedule to bring this matter to the floor, the committee considered the amendment hastily and out of the public eye, without cameras, without microphones, with only a handful of press and no members of the public present. That is no way to treat any important legislative matter, let alone an amendment to the basic governing charter of our country, the Constitution. As a result, the amendment did not receive the kind of searching inquiry and debate that a constitutional amendment should receive. Our hearings in the Subcommittee on the Constitution exposed serious questions about the meaning and effect of the amendment, including the conflicting answers to written questions that I have discussed. Further work in the committee might have shed light on those questions for our colleagues in the Senate who are now faced with having to vote on the amendment. But it seems that politics often trumps reason in this body during an election year. And when the majority leader has promised interest groups supporting this amendment that there will be a floor consideration on a particular day, there is apparently nothing that can stand in the way of that promise being kept. Not even respect for the Constitution of the United States. We should not write discrimination and prejudice into the Constitution. And we should not prematurely cut off the important debates taking place in States across the country about how to define marriage by putting in place a permanent, restrictive Federal definition of marriage. As we sit here today, there are Americans across our country out of work, struggling to pay the month's bills, worrying about their lack of health insurance or their ability to put their kids through college. Instead of spending our limited time this session on a proposal that is destined to fail and will only divide Americans from one another, we should be addressing the issues that will make our Nation more secure, our communities stronger, and the future of our families brighter. I urge my colleagues to oppose this unnecessary, mean-spirited, divisive and poorly thought out constitutional amendment. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent Kumar Garg, an intern from the Senate Judiciary Committee Subcommittee on Constitution, be granted floor privileges for the duration of the debate on Senate Joint Resolution 1, the Federal Marriage Amendment.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I wish to first note my concern about the procedure followed in the Judiciary Committee to report out this nomination precipitously to the floor. Our practice on nominations in the committee has been first to hold a hearing. Next, Senators are given the opportunity to review the transcript of the hearing and submit written questions. Normally, we are given a week to do that, which is a reasonable length of time. Then, once a nominee answers any written questions, the nomination can be noticed, and we have the right to hold that nomination over for 1 week. That is not an extraordinary amount of time, but it is at least sufficient for the Senators on the committee to do their jobs and have confidence that the nomination has been considered with due diligence. There is no good reason that we couldn't follow that schedule in this case. Mr. Kavanaugh's situation is unusual because he was first nominated several years ago, but his first nomination was essentially abandoned when he decided not to respond to written questions for a full 7 months after his hearing in April 2004. Senators on the Democratic side requested a new hearing for him over a year ago, after he was renominated. His nomination lay dormant until just a few weeks ago. Then, all of a sudden, there was a full court press to get this nomination done. Why is that? The rush to judgment in the committee, as far as I can tell, was based on nothing more than the majority leader's desire to have a floor vote on the nomination before our next recess. There was no reason for the rush except for the majority leader's political timetable. There is no crisis in the District of Columbia Circuit, which has the lowest caseload of any circuit in the country. All we were asking on the Democratic side in the committee was that we follow the regular order--a timely hearing and the opportunity to ask written questions. I do want to note that I finally received answers the day before the committee vote to some of the questions that I first asked back in April 2004. I was not entirely satisfied with those answers, but they were certainly more complete than those the nominee provided when he first answered my questions in November 2004. The fact that these questions were finally answered just completes the record from 2004. I believe Senators deserved a chance to review the transcript of the hearing held on May 9, 2006, and ask further questions if they wanted to. A lot has happened in this country and in this administration where Mr. Kavanaugh works during the interval between his hearing in May 2004 and the hearing earlier this month. That is one of the reasons a second hearing was necessary. So it was a mistake for the chairman of the Judiciary Committee to short-circuit the process by simply decreeing that written questions would not be permitted. Since the leader has decided to press forward on this nomination, I will vote no. I do not think Mr. Kavanaugh is the right choice for this vacancy. He is a very bright young lawyer and he has some impressive credentials. He may well be ready for appointment to a district court judgeship. But his record does not give me confidence that he is ready to serve on the District of Columbia Circuit, widely seen as the second highest court in the land. Mr. Kavanaugh has written almost nothing that we can look to for a sense of his judicial philosophy, of his judgment, of his temperament. In addition, so much of his career after clerking has been spent in partisan political positions that it is certainly legitimate to wonder whether he can be fair and impartial in a judicial role. Partisan political work does not necessarily disqualify someone from taking the bench. As has been pointed out, many very good appellate or Supreme Court judges held political posts. But most held other positions as well that demonstrated the capacity for independence. The Senate is entitled to ask for evidence that the nominee can be nonpartisan and impartial, not just assurances. In Mr. Kavanaugh's case, there is simply no record to examine to give comfort on that score. Furthermore, we know from the latest ABA evaluation that at least some people who have come in contact with him in his work do not think that he is prepared to be an appellate judge. Of the currently serving judges on that court, only one--Judge Douglas Ginsburg--had less legal experience when he or she was confirmed than Brett Kavanaugh now has. Ginsburg had 13 years of legal experience, including a year as a Senate-confirmed Assistant Attorney General and 8 years as a professor at Harvard Law School. He had a record that the Senate could much more easily evaluate. Other judges on that circuit had much longer careers when they were appointed. Judge Sentelle had 19 years of experience, including 10 years of private practice and 5 years as a judge; Judge Henderson had 18 years, including 4 as a U.S. district judge; Judge Randolph had 21 years of legal experience; Judge Garland, 20 years; Judge Edwards, 15 years, including 10 years as a law professor at Michigan and Harvard; Judge Tatel, 28 years; Judge Judith Rogers, 30 years, including 11 years as a judge; Judge Janice Rogers Brown, 28 years, including 11 years as a judge; Judge Griffith, 20 years. The District of Columbia Circuit is not a place to learn the judicial ropes, nor is it a place to reward a loyal employee. It is a court that makes decisions every day that have a huge effect on the lives and livelihoods of American citizens and American businesses. It has a caseload that demands not only a good legal mind but judgment, wisdom, and experience. Brett Kavanaugh has impressive credentials, but his limited record makes it impossible for me to be confident that he will be the fair and impartial judge that this country needs on such an important court. So I will vote no. (At the request of Mr. Reid, the following statement was ordered to be printed in the Record.)

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I will vote against the nomination of Michael Hayden to be Director of the CIA because I am not convinced that the nominee respects the rule of law and Congress's oversight responsibilities. General Hayden is highly experienced and talented. And some of his testimony before the Intelligence Committee, including his acknowledgment that the intelligence process was manipulated in the lead-up to the war in Iraq, was encouraging. It was therefore particularly disappointing that General Hayden failed to dispel serious concerns about his direction and defense of a program to illegally wiretap Americans on American soil without the required warrants. Having finally been briefed about this program last week, I am more convinced than ever that this program is illegal. I am equally convinced that there is no reason that this program could not have been briefed to the congressional intelligence committees 4\1/2\ years ago, as is required by law. Yet General Hayden expressed no doubts or concerns about the legality of the program or the administration's failure to inform Congress. It is not sufficient for General Hayden to say that the lawyers told him it was okay. He has an independent obligation to abide by the law. No one can force him to break the law--not the lawyers and not the President. Nor were the legal issues especially complex or beyond the understanding of a very intelligent and experienced intelligence professional. For years, General Hayden had been conducting surveillance in compliance with the FISA law. For years, the NSA had been notifying the congressional intelligence committees about its programs. Then, one day, everything changes. FISA no longer applies-- and, by the way, don't tell Congress. We know from General Hayden's testimony in 2002 that he understands the importance of the legal protections that FISA provides regarding surveillance of U.S. persons. His decision that it was OK to secretly bypass those protections is inexcusable. The Congress must stand up for the law and for our constitutional system of checks and balances. I believe that the President must be held accountable for breaking the law and for insisting that he can continue to do so. I am deeply concerned that, unless this body speaks, it will be seen by history as having consented to this illegal action. But those who carried out and defended this program also have some responsibility. We know, from Attorney General Gonzales' testimony to the Judiciary Committee, that this administration acknowledges virtually no limits to its authority. Under the theories put forward by the administration's lawyers, whenever national security is supposedly at stake, no laws are binding and Congress is merely an inconvenience. These assertions are contrary to our constitutional system and they are dangerous. And they cannot serve as an excuse for experienced leaders like General Hayden who know better. My decision to vote against General Hayden is not simply about responsibility for past conduct, although that is important. I will vote against this nominee because, given his recent actions and his less than reassuring testimony, I am not convinced that he will abide by the laws relevant to the position of the Director of the CIA. When I asked General Hayden about legally binding restrictions on the authorities of the CIA, such as those prohibiting the CIA from engaging in domestic security, he spoke about Presidential authority and consultations with Government lawyers. That was also his response to questions about illegal warrantless wiretapping as well. We know what this administration's lawyers have to say about following the law, and General Hayden provided no reassurance that he will see things any differently. General Hayden's conduct and testimony also raise serious questions about his willingness to respect congressional oversight. He was complicit in the administration's failure to inform the full congressional intelligence committees about the warrantless surveillance program, even though this notification is required by law. In his testimony, he repeatedly failed to explain or criticize the administration's failure to inform the full committees about the program. As Director of the CIA, General Hayden would have a legally binding duty to keep the congressional intelligence committees informed of CIA activities. If General Hayden does not acknowledge this duty, we cannot be assured that the Congress will be kept fully and currently informed, as is required by law. Finally, I remain concerned about previous misleading testimony by General Hayden regarding warrantless surveillance and his explanation for that testimony. In 2002, he told a joint congressional committee that, under FISA, persons inside the United States ``would have protections as what the law defines as a U.S. person and I would have no authorities to pursue it.'' In fact, the President had already authorized the NSA to bypass those legal protections. General Hayden's explanation for this statement, that he was speaking in open session at the time and had earlier given a fuller briefing to the committee in closed session, does not justify a public misleading statement. Our country needs a CIA Director who is committed to fighting terrorism aggressively without breaking the law or infringing on the rights of Americans. General Hayden's role in implementing and publicly defending the warrantless surveillance program does not give me confidence that he is capable of fulfilling this important responsibility. The stakes are high. Al-Qaida and its affiliates seek to destroy us. We must fight back and we must join this fight together, as a nation. But when administration officials ignore the law and ignore the other branches of Government, it distracts us from fighting our enemies. I am disappointed that the President decided to make such a controversial nomination at this time. In keeping with Senate historical practices, I defer to Presidents in considering nominations to positions in the executive branch. I do not believe it is the role of the Senate to reject nominees simply because they share the ideology of the person who nominated them. But we should not confirm a nominee for this position of great responsibility when his conduct and testimony raise such troubling questions about his adherence to the rule of law. (At the request of Mr. Levin, the following statement was ordered to be printed in the Record.)

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am mindful of Wisconsin's historic dedication to conservation and am keenly aware of the legacy of Gaylord Nelson, John Muir, Aldo Leopold, and Sigurd Olson. My constituents regularly remind me of Wisconsin's environmental heritage and they expect their leaders to help build a positive environmental future. As the Secretary of the Interior, Governor Kempthorne will have the opportunity to chart a responsible course for managing our Nation's public lands--a course very different from the one that the American people have endured over the past 5 years. I am encouraged by Governor Kempthorne's reputation for collaboration and consensus. While Governor Kempthorne's environmental record does give me cause for concern, it has been my practice to defer to presidents in considering nominees for Cabinet positions. Consistent with that practice, I will vote to confirm this nominee. In his testimony before the Energy and Natural Resources Committee, Governor Kempthorne stated his belief that ``there is a no more beautiful cathedral than the outdoors.'' I will take Governor Kempthorne at his word and hope that he will lead the Department of the Interior in a manner consistent with those words.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, this was a truly historic week for the Senate. With passage of the Comprehensive Immigration Reform Act of 2006, S. 2611, we have succeeded in maintaining several key components of the bill that passed out of the Judiciary Committee 2 months ago-- components that I believe are crucial to fixing our broken immigration system. For starters, supporters of comprehensive reform in the Senate banded together to defeat efforts to remove or further weaken provisions in this bill that will allow the estimated 11 million to 12 million undocumented immigrants currently living in the United States to earn legal status. As both the President and the Secretary of Homeland Security have said, mass deportation is not a realistic option. Neither is amnesty. This legislation would require those who are here illegally to come forward, pay hefty fines, pay taxes, learn English and civics, work, and wait in the back of the line--before earning the privilege of permanent resident status and ultimately a path to citizenship if they choose to pursue it. These core provisions remain in the bill, and that is critical. However, I am disappointed in the changes to the legalization process that were made as part of the Hagel-Martinez compromise when the bill was first taken up on the Senate floor in April. The compromise would treat differently those people who have been here for more than 5 years and those who entered the country illegally in the last 2 to 5 years. This approach is overly complicated and difficult to administer, and it is unfair to treat these two categories of people differently. During floor consideration, I voted to remove these arbitrary distinctions from the bill. Unfortunately, that vote failed, and I believe we must accept this compromise as the only way to move forward with comprehensive immigration reform this year. I am pleased that efforts to gut the guest worker program were not successful and that the Senate added additional measures to strengthen labor protections for U.S. workers. We need a guest worker program that allows employers to turn to foreign labor as a last resort when they genuinely cannot find American workers to do the job. But it is important that any guest worker program contain strong labor protections, as the program outlined in the legislation does. These protections will help ensure that the program does not adversely affect wages and working conditions for U.S. workers, and that we do not create a second-class of workers, who are subject to lower wages and fewer workplace protections. Furthermore, by permitting these workers to enter the country legally, we can try to avoid a future flow of undocumented workers who would otherwise create a new underground economy. New border security measures are, of course, an absolutely critical element of any immigration reform bill. This bill contains important provisions to increase and improve the personnel, equipment, infrastructure, and other resources our country needs to protect the border, and I strongly support those measures. But border security alone is not enough. According to a recent Cato Institute report, the probability of catching an illegal immigrant has fallen over the past two decades from 33 percent to 5 percent, despite the fact that we have tripled the number of border agents and increased the enforcement budget tenfold. We also must create realistic legal channels for immigrants to come to the United State and that allow undocumented immigrants who pass background checks to earn legal status. This reform of our immigration system is important to our national security because it will enable our border agents to focus their efforts on terrorists and others who pose a serious threat to Nation. The bill contains other important proposals, such as the DREAM Act, which provides higher education opportunities for children who are long-term U.S. residents and came to this country illegally through no fault of their own; and the AgJOBS bill to help agricultural workers; and family reunification. These provisions may not have been subject to as much debate as other elements of the bill, but they are just as important. The amendment process also brought improvements to title III of the bill, which creates a new mandatory, nationwide electronic employment verification system. If not implemented correctly, such a system could result in countless U.S. citizens and other work-authorized individuals being denied work as a result of errors or discrimination, a result that none of us want. The new version of title III contains important privacy, due process, and labor protections to ensure that implementation of this system is as fair and accurate as possible. That said, this system is a dramatic expansion of an existing pilot program that has faced a variety of serious problems, and I have concerns about expanding it to a nationwide mandatory scheme. Its implementation will require robust congressional oversight to ensure that citizens and work-authorized immigrants are not turned down for jobs because of mistaken results. Although the border security measures and the core reforms to our immigration system that are in this bill are very important, I do have concerns about some aspects of this bill, including some changes that were made to this bill during the amendment process on the Senate floor. One successful floor amendment would require the Government to build 370 miles of fence along the southern border. Every Member of this body recognizes that border security is critical to our Nation's security, but I opposed the border fencing amendment because I cannot justify pouring Federal dollars into efforts that have questionable effectiveness. Border fencing costs between $1 million and $3 million per mile. And yet we will be committing vast resources to an initiative that I have serious doubts will even work. While fencing can be effective in urban areas, adding hundreds of miles of fencing in rural sections of the border will not stem the flow of people who are willing to risk their lives to come to this country. I was also disappointed that the Senate approved the amendment making English the national language of the United States. Instead of considering divisive English-only amendments that fan the flames of tension over the issue of immigration, we should be providing recent immigrants with more opportunities to learn English. I also am concerned that this amendment's language could limit the ability of the Federal Government to communicate with its citizens, which could have potentially devastating consequences in situations like national emergencies. That is why I supported an alternative amendment proposed by Senator Salazar, which simply recognized English as the ``common and unifying'' language of the United States. I continue to have serious concerns about some provisions in title II of the bill. Despite improvements that were made in the Judiciary Committee, title II still contains provisions that are both ill-advised and unnecessary. Title II contains measures that require excessive deference to executive agency decisionmaking in a variety of immigration contexts; that expand the categories of individuals subject to the most draconian immigration consequences and apply some of these changes retroactively; and that require that civil immigration violators be put in the central criminal database used by local, State and Federal agencies around the country. Eroding due process rights for people in this country will not make us safer, nor is it in keeping with our Nation's values of fairness and justice. It will be important that we work to improve some of these provisions in the conference process. I was very pleased, however, that the Senate voted in favor of an amendment that I offered on the floor to strike a provision in title II that could have had devastating consequences for asylum seekers. The provision would have made it harder for asylum seekers, victims of trafficking, and other immigrants to get a temporary stay of removal while they pursue their appeal than it would be to win on the merits. This absurd result has been rejected by seven courts of appeals, and the Senate is now on record as well. Although there are many other problems with title II of the bill, this was a significant improvement and reinstates a critical due process protection. An amendment offered by Senator Ensign relating to Social Security benefits, which was tabled, has been the subject of a great deal of misinformation. Under current law, undocumented immigrants are not entitled to Social Security benefits, and there is nothing in the underlying bill that would change this. Under the Ensign Social Security amendment, immigrants who paid into Social Security and later earned legal status would have been prevented from having their earnings that they already paid into the system count toward their retirement benefits. The amendment, which I opposed, would have limited the Social Security benefits only of U.S. citizens and those in the country legally. This amendment would have harmed elderly or disabled individuals who would be impoverished despite having paid into the Social Security system for many years and would deny innocent American children who are born to these workers survivor benefits, regardless of how long their mother or father worked and paid taxes in the United States. In addition, the Ensign amendment would have forced taxpayers to pay more for the means-tested welfare programs to which these impoverished individuals would have had to turn. For these reasons, I opposed the Ensign amendment, and I am pleased that the majority of my colleagues did as well. Mr. President, the end result of several weeks of hard work is bipartisan, compromise legislation that will bring meaningful reforms to a system that has long been broken. The bill is far from perfect, but on balance, I believe it is a victory for supporters of comprehensive reform. But as the saying goes, it ain't over 'til it's over. In order for this legislation to become law, we need our colleagues in the House to work with the Senate during the conference committee process and to adopt a comprehensive approach to this issue. And we need the President, who has come out in favor of comprehensive reform, to stay invested in this process. He has spoken, but now he must act. We will need his help in convincing members of the House to abandon ill-conceived notions like criminalizing undocumented people and those who provide humanitarian support to them, and chiseling away at due process rights. The President's leadership, and the willingness of House leaders to work with the Senate, will be crucial in order to retain the important reform provisions contained in this bill during the conference process. This is a defining moment for America, and I am hopeful that the Senate, the House, and the President will work together so that we can build on this success and enact a comprehensive reform bill by the end of this Congress.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I would like to read from this letter to give my colleagues a better understanding of whom this provision of the bill will affect. According to this letter: Section 227(c) poses grave risks to many immigrant women and children who, in the absence of a stay of removal, will be deported and delivered into the hands of human traffickers, batterers, and persecutors. Let me read one example the National Network provided in its letter of a case in which the availability of a stay of removal was essential. Let me tell you about Lioudmila, Anastasia, and Aleksandra Krotova. According to the letter: Lioudmila Krotova and her children Anastasia and Aleksandra fled Russia after they were assaulted by skinheads and their synagogue was stormed. Ms. Krotova reported both attacks to the police, but the police failed to take any meaningful action. After the Krotovas fled Russia, skinheads beat a close family friend to death and also beat the Krotovas' relative so brutally that they broke his hip. After entering the U.S., Ms. Krotova applied for asylum. An immigration judge denied her application, and the [Board of Immigration Appeals] affirmed the judge's decision. Ms. Krotova then appealed to the U.S. Court of Appeals and obtained a temporary stay of removal. The U.S. Court of Appeals eventually reversed the BIA decision and concluded that the harassment, discrimination and violence experienced by Ms. Krotova on account of her being Jewish compelled the finding that she suffered past persecution. This is just one example. The letter also talks about a woman who was ordered removed while her husband was serving overseas in the Texas National Guard and whose deportation would have left her U.S. citizen children no parent to care for them. And there are others. If my amendment is not adopted, these are the types of people who will be affected, who will be sent back to countries where they could be killed or torn from their families. I assume those who support this provision want to ensure immigrants cannot file frivolous appeals in order to delay their deportation, and I wholeheartedly agree with that goal. But this provision is not necessary to accomplish that worthy goal. The Federal courts do not grant stays of removal when immigrants have little likelihood of success. In fact, several of the appellate decisions that have rejected the clear and convincing evidence standard at issue here have gone on to apply the four-part test I discussed earlier and denied stays of removal pending appeals. Nonetheless, they have denied these stays in some cases because the immigrants had little likelihood of success or because the immigrant could safely return to their home countries and await the outcome. So this provision is really just a solution in search of a problem. This amendment is about basic due process and fairness. It is about giving individuals who have been turned down at the administrative level the opportunity to seek meaningful judicial review. And it is about making sure that those who seek asylum in this country and who have meritorious claims are not returned to persecution or even murder in their home countries before they can present their case to a Federal court. That is why a long list of organizations have come out in support of this amendment, including the U.S. Conference of Catholic Bishops, World Relief, the Leadership Conference on Civil Rights, the National Council of La Raza, and more than 50 others. Mr. President, I ask unanimous consent that a full list of the organizations that support this amendment be printed in the Record immediately following my statement.

Mr. FEINGOLD. Mr. President, this amendment will ensure that asylum seekers, victims of trafficking, and other immigrants are able to secure meaningful judicial review of removal orders. It would strike from the bill a provision that would have the really absurd result of making it harder in many cases for an immigrant to get a temporary stay of removal pending appeal than to actually win on the merits of the case. Before I go further, I thank Senator Brownback for cosponsoring this amendment. He has been tireless in his efforts to help asylum-seekers and trafficking victims, and I am very pleased that we could work together on a bipartisan basis on this effort. Under section 227(c) of the bill, a court cannot grant a temporary stay of removal pending appeal to an asylum applicant or other individual unless the immigrant proves by clear and convincing evidence that the order is prohibited as a matter of law. That, as we all know, is an extremely difficult standard to satisfy, particularly in the preliminary stage of an appeal. It is so difficult that the Chicago Bar Association called this provision a ``potentially devastating threat to due process.'' This draconian provision could have a particularly harmful effect on asylum-seekers. It could effectively deny all judicial review to many asylum applicants who might otherwise have successful appeals by allowing them to be sent back to countries where they can face persecution or even death before a Federal court can even rule on their cases. Section 227(c) would overturn the decisions of seven different courts of appeal that have determined that the Immigration and Nationality Act does not currently require immigrants to meet the very high ``clear and convincing evidence'' standard for temporary stays of removal pending appeal. I will explain in a bit more detail, as these courts already have, why this very stringent standard would be such bad policy. First of all, as I have said, in many cases this provision would result in an immigrant having to meet a higher standard of review to get a temporary stay of removal than to prevail on the merits of it. Federal courts review legal issues in asylum and other immigration cases de novo, and they review issues, such as credibility questions in asylum cases, using a lower, ``substantial evidence'' standard. These standards are nowhere near as difficult to satisfy as a ``clear and convincing evidence'' standard that the decision ``prohibited as a matter of law.'' Indeed, courts of appeal have pointed out that the only individuals who could satisfy such a high standard would be U.S. citizens and individuals who hold visas of ``unquestioned validity.'' I will read a quick passage from a decision of the First Circuit Court of Appeals that I think goes right to the heart of the issue: Perhaps most important, we recognize that extending [the] stringent clear and convincing evidence standard to stays pending appeal . . . would result in a peculiar situation in which adjudicating a stay request would necessitate full deliberation on the merits of the underlying case and, in the bargain, require the alien to carry a burden of proof higher than she would have to carry on the merits. This Kafkaesque design is counterintuitive. Let's pause for a moment to consider that--``this Kafkaesque design is counterintuitive.'' A panel of the First Circuit Court of Appeals, in a decision written by a judge appointed by President Reagan, has called the very provision that is in the bill ``Kafkaesque.'' Surely, the Senate does not want to include such an extreme provision in this bill. Even in situations where the issue on appeal is subject to a very deferential standard of review, it makes no sense to require an immigrant to meet the stringent ``clear and convincing evidence'' standard of review at such a preliminary stage of the case. As one court has pointed out, the appellant may not even have obtained a copy of the administrative record that early in the case. How can appellants prove by clear and convincing evidence that they will win their appeal when they may not even have a copy of the administrative record? Kafkaesque, indeed. This standard would also be out of line with analogous situations in other civil cases. Typically, when an appellant seeks temporary relief at the beginning of a case, the goal, as many of us know, is to preserve the factual situation for the duration of the appeal, and the goal of that is to ensure that the ultimate relief, if granted, will still be meaningful. That is why many courts of appeals reviewing removal orders rely on the same standard of review that applies to requests for temporary restraining orders in civil litigation. That test is well known to so many who have studied the law. They apply a four-part test that evaluates the likelihood of success on the merits: whether there will be irreparable injury if a stay is denied; whether there will be a substantial injury to the party opposing a stay if one is issued; and the fourth criterion, the public interest. This flexible standard allows a court to assess whether a stay is needed early in the case without having to delve into the detail required to determine the final outcome. But if this provision were to become law, the entire case would have to be litigated in full twice--once to meet the requirements for a stay of removal and then again on the merits. At least in some courts of appeals, that would mean the case would first have to be presented to a motions panel on the stay application and then again before the merits panel. As the American Bar Association has argued in urging the Senate to reject this provision, such a duplicative process would be a significant waste of resources, particularly at a time when the immigration caseload of the Federal courts is growing. I wish to speak for a moment about the individuals who would most likely be harmed by this new provision, and they are, of course, asylum seekers. As one Federal court has explained, imposing this new stringent standard ``would mean that `thousands of asylum seekers who fled their native lands based on well-founded fears of persecution will be forced to return to that danger under the fiction that they will be safe while waiting the slow wheels of American justice to grind to a halt.''' Similarly, Judge Easterbrook of the Seventh Circuit noted that stays pending appeal ``remain vital when the alien seeks asylum or contends he would be subject to torture if returned. The ability to come back to the United States would not be worth much if the alien has been maimed or murdered in the interim. Yet under [the clear and convincing evidence standard] . . . an alien who is likely to prevail in this court, and likely to face serious injury or death if removed, is not entitled to remain in this Nation while the court resolves the dispute.'' Just to give that example. The stakes are high. This provision has the potential to be devastating for asylum seekers; so devastating, in fact, that the provision was rejected by Congress just last year when it was taken out of the REAL ID Act in the conference process, and it is not even included in the current House bill. I hope the Senate will support my amendment to strike this troubling provision from the bill. Let me put a personal face on this debate. I received earlier this week a letter from the National Network to End Violence Against Immigrant Women. This is a very compelling letter, and I ask unanimous consent that it be printed in the Record.

Mr. FEINGOLD. Mr. President, I hope it will be shorter, but it depends on the response.