Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I appreciate that.

Mrs. FEINSTEIN. Mr. President, I thank the Senator from Maine, the Senator from Rhode Island, and the Senator from Massachusetts for their comments. I believe that consumes the time I have; is that correct?

Mrs. FEINSTEIN. Mr. President, I reserve the remainder of my time.

Mrs. FEINSTEIN. OK.

Mrs. FEINSTEIN. Mr. President, the Deepwater Port Act gives Governors the right of veto over an LNG port 3 miles or more offshore, but this bill prevents them from having any authority if there is a proposal for an LNG terminal right on State land, right in the heart of a metropolitan area, right where it presents a danger to citizens, right where it could present an environmental disaster. This is an idiosyncracy which is wrong. All we have done is replicate the Deepwater Port Act's authority. The other point I wish to make is there is in this bill the right of appeal. There is the right of the Commerce Department to step in and reverse anything a State does in this regard. There will be LNG terminals sited, let there be no doubt about it. The key is to site them smartly, to site them where they make the best sense. I thank the Chair.

Mrs. FEINSTEIN. Will the Senator yield for a question?

Mrs. FEINSTEIN. I ask unanimous consent the reading of the amendment be dispensed with.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today I wish to congratulate Christine Henneberg of Palo Alto, CA, for winning Second Prize in the prestigious Elie Wiesel Prize in Ethics Essay Contest. This represents a tremendous achievement, and I am pleased to recognize her today. Rooted in the memory of the Holocaust, Elie Wiesel and his wife, Marion, started the Elie Wiesel Foundation for Humanity to combat indifference, intolerance, and injustice through international and youth-focused programs. Each year, they sponsor the Prize in Ethics Essay Contest to challenge college students to analyze the urgent ethical issues confronting them in today's world. Now in its 17th year, the contest encourages our Nation's students to submit personal essays that raise questions, single out issues, and are compelling arguments for ethical action. As a senior at Pomona College in California, Christine entered the national essay contest under the sponsorship of Pomona College Professor of Philosophy N. Ann Davis. In her prize winning essay, ``The God on my Grandfather's Table,'' Christine explores the role of the elderly in our society and the implications of the unfortunate and frequent negative perception of the elderly. Chosen from over hundreds of essays from more than 200 colleges and universities nationwide, Christine's work demonstrates her tremendous maturity and devotion to important issues facing our society. Christine now plans to attend medical school. I want to wish her the best there and in all she does. She has made our great State proud, and I am happy to commend her today.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise to say thank you to both Senator Lieberman and Senator McCain for giving this Senate the first real start to reduce global warming. I was one who voted for the Hagel amendment, but I did so realizing it really had very little bang for the buck. This is the first real global warming bill this body will come to grips with. I think it is extraordinarily important. In real terms, passage of this bill would mean that instead of having 8 billion tons of greenhouse gases emitted into the air in 2010, as would be the case if we do not pass the amendment, we will emit slightly less than 6 billion tons in 2010. That means this amendment would reduce emissions by almost 2 billion tons, or 25 percent, by the end of the decade. In order to achieve the goal, the amendment would implement a market- based emissions cap and trade system. Currently, the United States is the largest emitter of greenhouse gases in the world. We account for one-fourth of all global greenhouse gas emissions. In a single year, the average American produces the same greenhouse gas emissions as 4.5 people in Mexico or 18 people in India or 99 people in Bangladesh. In the past 200 years, since the Industrial Revolution, the concentration of carbon dioxide in the Earth's atmosphere has risen by roughly 30 percent. If we do nothing to reduce these emissions, CO2 levels are estimated to again rise by 30 percent in only the next 50 years. Here it is on the chart. You see, as temperature rises, global warming takes place, and carbon dioxide emissions increase. The hottest year on record is 1998, followed by a tie for the second hottest year between 2002 and 2003. Let me say what the National Academy of Sciences has reported. Let me just briefly quote: Since the 1900s global average temperature and atmospheric carbon dioxide concentration have increased dramatically, particularly compared to their levels in the 900 preceding years. Carbon dioxide is the No. 1 global warming gas. We have already begun to see, as both Senators McCain and Lieberman have said, the real impacts of global warming. Glaciers are beginning to disappear throughout the United States and around the world at a rapid rate. This chart demonstrates the rapid loss of the South Cascade Glaciers in Washington State. In addition, it is predicted that all the glaciers in Glacier National Park in Montana will be gone by 2030. Here on the chart, you can see the South Glacier. In 1928, you could see the full glacier. Then, this is what you saw in 1979. And you can see that in 2003 it was just about one-half of what it was. Since 1979, more than 20 percent of the polar ice cap has melted away due to the increase of global temperatures. Senator Lieberman mentioned that in his speech, but I think this chart shows it dramatically. This line indicates the Arctic sea ice boundary in 1979. You can see how large it was. And you see more than 20 percent of the polar ice cap has already melted away. That is disastrous because the top of the planet is more impacted than the bottom of the planet. Now, this is forcing Eskimos in Alaska to move inland. My husband just visited an Eskimo village. They were preparing to move their village because it was being inundated by the ocean. Over the last century, the global sea level has risen by 6 inches. The United Nations Intergovernmental Panel on Climate Change predicts that by the next century, the global sea level will rise even higher to anywhere from 4 inches to 3 feet. That is enormous when you look at these changes. Let me just speak for a moment about my State. Since 1900, California has warmed by 2 degrees Fahrenheit. Annual precipitation has decreased over much of the State--by 10 to 25 percent in many areas. The EPA estimates that the temperature in California could rise by as much as 5 degrees by the end of this century if the current global warming trends continue. That increase is going to have a drastic impact on many facets of California life--water, for one. As the largest agricultural State in the Union, we need it to farm and grow our crops. We need water to keep the ecosystem in balance, and we need water for 37.5 million people to drink, to wash, and to water crops and plants. The Sierra Nevada snowpack is the largest source of water. The snowpack equals about half the storage capacity of all of California's man-made reservoirs. It is estimated that by the end of the century, the shrinking of the snowpack will eliminate the water source for 16 million people. That is equal to all of the people in the Los Angeles Basin. That is how big this is. What this chart shows is, if we take strong action to curb greenhouse gas emissions, 27 percent of the snowpack will remain in the Sierras; strong action will only protect 27 percent. If we do nothing to reduce our greenhouse gas emissions, only 11 percent of the Sierra Nevada snowpack will be left by the end of the century. You clearly see it. That is Armageddon for California. That is Armageddon for the fifth largest economy on Earth. Now, we have already begun to see a decline in the Sierra Nevada snowpack due to warmer winter storms that bring more rain than snow and also cause a premature melting of the snowpack. If just a third of the snowpack is lost, it would mean losing enough water to serve 8 million households. So you can see how big this is. That is why this bill is so important--the first bill that actually does something about it. Let me talk for just a second about our wine industry. It is recognized throughout the world. It is a $45 billion industry in sales, jobs, tourism, and tax revenue. Grown throughout the State, wine grapes are sensitive to temperature and moisture. It is predicted that by the end of the century, grapes will ripen up to 2 months earlier and will be of poorer quality. The result is a decline for California's premier wine industry. Let me talk about dairy. We are the largest dairy-producing State in the Union, much to the chagrin of my distinguished colleague from Wisconsin. Studies indicate that due to increased temperatures, our milk production could be reduced anywhere from 5 to 20 percent. This would not only have a drastic impact on California's agriculture industry, but it would also affect other States that rely on California to provide milk and other dairy products. Beaches and coastlines--we are known for them. When most people think of California, they think about our beaches. The rising sea level, due to global warming, is slowly swallowing these beaches and eroding the coastline. Over the last century, the sea level has risen 3 to 8 inches. Scientists predict it will continue to rise an additional 13 to 19 inches by the end of this century. This will force municipalities to replenish land on beaches stretching from Santa Barbara to San Diego. The EPA says this could cost from $174 million to $3.5 billion. Global warming is California's No. 1 environmental problem. Now, let me talk for a moment about what cities are doing. Cities are not waiting for us. Cities are moving. Members of the United States Conference of Mayors unanimously passed a resolution earlier this month that requires their member cities to attempt to meet or exceed emissions standards set by Kyoto. They have agreed to try to meet or beat the Kyoto Protocol targets in various communities around the Nation. They have agreed to urge their State governments and the Federal Government to enact policies to reduce greenhouse gas emissions, and they have agreed to urge us to pass the McCain-Lieberman bill. So far, 167 cities have signed up to enforce the Kyoto requirements. Nearly 40 States, to date, have developed their own climate plans. Four-fifths of the United States is moving on its own because we are so slow to act. An emission trading system is emerging in the Northeast that will require large power plants from Maine to Delaware to reduce their carbon emissions. Eighteen States and the District of Columbia have enacted standards to require that electricity be generated with renewable fuels rather than fossil fuels. These States include California, Arizona, Colorado, Connecticut, Hawaii, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, Texas, and Wisconsin. The point is, our States are moving. Why are we so bloody slow? California has enacted legislation that will reduce greenhouse gas emissions from vehicle tailpipes. It is expected that the Northeastern States and Canada will also follow California's lead. Yet, without concerted Federal action, the United States will not be able to achieve real, significant greenhouse gas reductions. If Members of the U.S. Senate agree with the science, if they agree with virtually all of the literature to date, if they look out and study the weather and they see the changes, if they see the fluctuation in weather patterns, the aberrant behavior of weather, they will come to the conclusion that global warming is real. It is real, and we now have the first bill to do something positive about it, and that is the Lieberman-McCain legislation. I believe all of California supports it. I am proud to support it. I urge its passage to this distinguished body. I yield the floor.

Mrs. FEINSTEIN. Mr. President, I thank the Democratic leader and Senator Inhofe for this courtesy. I don't think there is a Member of this body who hasn't gone to an event, made a speech, answered a question, advocated a cause, who hasn't said: Oh, I wish I had done it differently. I don't think there are any of us who haven't awoken the next morning and said: Gee, I really meant it, and I am sure it is going to be taken out of context, or they are going to think I meant this or that. I don't think there are any of us who haven't sometimes written letters to correct what we have said. We know Dick Durbin. We know he is patriotic. We know he cares about the men and women serving. And we know that he would do nothing to ever mean anything to the contrary. I was very much taken by his remarks. More importantly, I was taken by the emotion behind the remarks. We have been having in the Judiciary Committee a legitimate debate on Guantanamo. Hearings have been held. Debate is taking place. That is healthy. That is what this system is all about. Senator Durbin has played a role in that debate. I hope, too, that this will mark the end of it. I thank, too, the Senator from Arizona for what he said. No one has a more distinguished military record than he. I also hope that everyone who has heard Senator Durbin tonight recognizes his sincerity and his depth of concern. Let this be the end of it.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to oppose Senator Domenici's amendment to require that U.S. refiners blend 8 billion gallons of ethanol into gasoline each year by 2012. I think this is a mistake that will cost the Federal treasury $2 billion by the time it is fully implemented and could further pollute California's air. In my home State, the mandate will mean that refiners must choose between blending ethanol into gasoline or using a costly credit/trading system. Either choice will mean California consumers pay more at the pump. Accordiing to the California Air Resources Board, California would be able to mitigate the air quality impacts of a mandate if it were limited to 6 billion gallons or less. With a 6 billion gallon mandate, refiners in California would be required to use about 660 million gallons of ethanol, which they could accomplish in the cooler winter months alone. However, at 8 billion gallons, the State's refiners would be forced to use about 880 million gallons of ethanol and they would either have to use ethanol in the hot summer months, when it could pollute the air, or buy costly ``credits'' for not using ethanol. While we do not know exactly how the credit trading system will work, it is estimated that the credits would cost about 40 cents per gallon of ethanol. So if California refiners were not able to use about 220 million gallons of ethanol per year, it could cost $88 million annually to buy the credits--money that would inevitably be passed on to drivers. I do want to thank Chairman Domenici for including two provisions in the amendment that could help my State: repealing the 2 percent oxygenate standard; and maintaining the summertime waiver for California. The Federal 2 percent oxygenate standard has forced areas with poor air quality, including the entire State of California, to use either MTBE or ethanol in gasoline. This Federal requirement has forced California's refiners to use an oxygenate even though they can make cleaner-burning gasoline without MTBE or ethanol. To meet this oxygenate requirement, California has been forced to use ethanol since 2004 when the State officially banned MTBE, although many refiners in the State started using ethanol as early as 2003. Beginning in the Summer of 2003, ethanol was found to have had a detrimental impact on the State's air quality. And on August 1, 2003 the California Environmental Protection Agency informed me that: . . . our current best estimate is that the increase in the use of ethanol-blended gasoline has likely resulted in about a one percent increase in emissions of volatile organic gases (VOC) in the SCAQMD [South Coast Air Quality Management District] in the summer of 2003. Given the very poor air quality in the region and the great difficulty of reaching the current federal ozone standard by the required attainment date of 2010, an increase of this magnitude is of great concern. Clearly, these emission increases have resulted in higher ozone levels this year that what would have otherwise occurred, and are responsible for at least some of the rise in ozone levels that have been observed. I will provide a copy of this letter for the record. In September 2004, the California Air Resources Board sponsored a study by the Coordinating Research council entitled ``Fuel Permeation From Automotive Systems.'' The purpose of the study was to find out if three different fuels had different chemical properties that made one evaporate more rapidly then the others. The fuels that were studied were MTBE-blended gasoline, ethanol- blended gasoline, and gasoline with no oxygenate. The study found that emissions increased from all 10 of the gas tanks and engines that were studied when ethanol replaced the MTBE in gasoline. In fact, the ethanol blended gasoline caused emissions to increase by 65 percent when compared with MTBE blended gasoline, and by 45 percent when compared with non-oxygenated gasoline. Here's why: ethanol-blended gasoline evaporate from the car's parts faster and does so in a vapor form. Those vapors cause smog. Ethanol's evaporative tendencies only get worse in hot climates. The Air Resources Board has since found that the use of ethanol on hot summer days increases emissions of ozone forming compounds by about 75 tons per day above what they would be if we were allowed to use summertime gasoline without ethanol. This is important because ozone can cause respiratory difficulties in the elderly and those with asthma. There is a strong direct relationship between temperature and ethanol--the hotter the day, the higher the emissions. On a 100 degree day, emissions are four times higher than on a 68 degree day. Therefore, the worst time to use ethanol is in the summer months. Overall, the Air Resources Board believes that ozone levels in California are about 1 to 2 percent higher than they should be because of the oxygenate requirement. This is a significant problem. Almost all of California's 37 million residents already breathe unhealthy air. Current levels of ozone pollution annually result in an estimated 630 premature deaths; 4,200 hospitalizations for respiratory diseases; and 3.7 million school absences. The Energy Committee approved my amendment to this bill to provide California with a waiver so that the State does not have to use ethanol in the summertime when ethanol-blended gasoline impacts air quality the most. I do appreciate the fact that Chairman Domenici has retained this waiver in his amendment. However, I still believe the ethanol mandate is bad public policy, which increases the cost of gasoline for consumers; does next to nothing to reduce oil consumption to increase energy security; and, has severe impacts on the federal budget. Last month, the Director of the Petroleum Division at the Energy Information Administration stated before the House Government Reform Committee that: . . . refiners lost production capability when replacing MTBE with ethanol. This, along with continued demand growth, has contributed to price pressures. From 2000 through 2002, California retail gasoline prices averaged about 19 cents per gallon more than the U.S. average gasoline price, but in 2003 as MTBE began to be removed, California prices averaged 27 cents per gallon higher than the U.S. average, and remained at that level through 2004. So far this year, California's gasoline prices are at least 23 cents higher than the U.S. average. Much of this additional cost can be attributed to the cost of transporting ethanol. Because ethanol cannot be transported through the existing pipeline infrastructure and has to be trucked from the Midwest to the coasts, it adds another 10 cents to the retail cost of gasoline. In other words, adding ethanol to our gasoline has increased the cost at the pump. Moreover, the ethanol mandate does not improve energy security. The ethanol mandate will only reduce U.S. oil consumption by one-half of one percent when the 8 billion gallon mandate is fully implemented in 2012. In addition, since ethanol has a somewhat lower energy content, more fuel is required to travel the same distance. This energy loss leads to an approximate 3 percent decrease in miles per gallon vehicle fuel economy with ethanol-blended gasoline. And finally, I would like to point out how expensive this mandate is. Ethanol receives a tax credit of 51 cents per gallon. If the mandate were to increase to 8 billion gallons by 2012 from the 3.85 billion gallons of ethanol sold today, that would mean a net loss of an additional $2 billion to the U.S. Treasury. We should not be imposing a larger mandate for ethanol at a time when the ethanol industry already receives such a huge subsidy, and when the Nation has such huge budget deficits. We need to either eliminate the mandate or end the subsidy. We can keep one or the other but not both. Yes, the provision to allow California not to use ethanol in the summertime is a win for California's air quality. But the mandate, itself, could well be a loss for consumers and the Federal Treasury. I hope my colleagues will join me in opposing this amendment. I ask unanimous consent that the letter from which I quoted be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to introduce the Public Lands Corps Healthy Forest Restoration Act of 2005. I am introducing this bill with Senators Domenici and Bingaman, whose cosponsorship I greatly appreciate. I also understand that Congressmen Greg Walden and Tom Udall are introducing an identical version of the bill in the House, which I also appreciate. This bill authorizes the Secretaries of Agriculture and Interior to enter into contracts and cooperative agreements with qualified corps to perform appropriate conservation projects, assist governments and Indian tribes in performing research and public education associated with natural and cultural resources, introduce young people to public service and expand their educational opportunities, and stimulate interest among the Nation's youth in careers in conservation and land management. Consistent with the Healthy Forest Restoration Act, this bill also identifies a series of priority projects for corps to carry out including the restoration and protection of public lands threatened by severe fire, insect or disease infestation or other damaging agents; the protection, restoration, or enhancement of forest ecosystem components to promote the recovery of threatened and endangered species; the improvement of biological diversity; and, the enhancement of productivity and carbon sequestration. In general, the Secretaries may give a preference to those corps that enroll young people who are economically, physically, or educationally disadvantaged. When it comes to the priority projects, the Secretaries shall ``to the maximum extent practicable'' give preference to those corps that have a substantial number of members who are disadvantaged. It also allows the Secretaries to grant noncompetitive hiring status to corps alumni for future Federal hiring. Finally, the bill authorizes $15 million a year, of which $10 million is for the priority projects identified in the bill and $5 million is for nonpriority projects. I have named this legislation the Public Lands Corps Healthy Forests Restoration Act because it builds on both the Public Lands Corps Act of 1993 and the recently enacted Healthy Forest Restoration Act. I also want to note that last year the administration supported an earlier, but substantially similar, version of this bill. This bill uses the cost saving resources of youth corps to carry out projects. It is estimated that youth corps generate $1.60 in immediate benefits for every dollar in costs. This figure is important given both the great need and great costs associated with fighting fires. The Federal Government is responsible for overseeing 689 million acres of land and five Federal agencies reported spending $1.6 billion in 2002 on fire fighting suppression efforts--a whopping $300 million more than the previous record. As an example of what can happen in one State, consider 2003's catastrophic wildfires in southern California. Before these wildfires were contained, they scorched a total of 739,597 acres, killed 24 people, and destroyed approximately 3,631 homes and thousands of other structures. Not only did insurance payouts cost more than $3 billion, but public expenditures for firefighting and recovery ran into the hundreds of millions of dollars. And California is certainly not the only State to incur large costs from fires. I want to reduce the chances of this type of catastrophe recurring in the future. To do so, we must use every resource at our disposal. I know that youth service and conversation corps can play a significant role in reducing the physical and financial strain that public land management agencies bear, and help protect our Nation's public lands from wildfires and other forms of devastation. I have seen firsthand the benefits that service and conservation corps bring to communities and the difference that they make in the lives of disadvantaged youth. In 1983, I founded the first urban youth corps as mayor of San Francisco, and during that time I saw a great improvement in the quality of life of the corps members and of the city itself. When the program started, it had a million-dollar budget and employed 36 disadvantaged young people 18 to 23 years old. They needed some direction, wanted a challenge, and to make themselves socially useful. That first year, we paid corps members $3.35 an hour to repair bathrooms in affordable housing for senior citizens and others, build a park in Hunter's Point, clear scotch broom from the Twin Peaks hillside, and fix up Alcatraz Island. In the subsequent 22 years, the San Francisco Conservation Corps, SFCC, has grown into a multisite, multifaceted agency that engages more than 500 young adults annually who have completed over 3.5 million hours of community service. The San Francisco Conservation Corps has also given thousands of corps members a sense of personal pride, helped connect them with their community, and prove that hard work pays off. I started the corps to help young people break out of the cycle of poverty and crime and improve their job skills by giving them guidance and support through labor-intensive activities. I am introducing this bill with the hope that the success of the San Francisco Conservation Corps can be duplicated nationwide. This program will not reach every disadvantaged young person in need of guidance and a second chance. But it is a start, and I urge my colleagues to join me in this effort. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, today, we celebrate Flag Day, honoring an enduring symbol of our democracy, of our shared values, of our allegiance to justice, and of those who have sacrificed to defend these principles. On this day, I renew my support for S.J. Res. 12, a resolution that would let the people decide whether they want a constitutional amendment to protect the American flag. Many moving images of the flag are etched into our Nation's collective conscience. We are all familiar with the image of marines raising the flag on Iwo Jima, with the New York firefighters raising the flag amid the debris of the World Trade Center and with the large flag that hung over the side of the Pentagon while part of it was rebuilt after 9/11. It is more than a piece of material to so many of us. For our veterans, the flag represents what they fought for--democracy and freedom. Today there are almost 300,000 troops serving overseas, putting their lives on the line every day fighting for the fundamental principles that our flag symbolizes. Last December, I traveled to Iraq and met with some of the brave men and women in the Armed Forces who are stationed there. We flew out of Baghdad on a C-130 that we shared with a flag-draped coffin being accompanied by a military escort. This was very moving. It showed clearly how significant the meaning of the flag is and why protecting it is so important. In the 1989 case Texas v. Johnson, the Supreme Court struck down a State law prohibiting the desecration of American flags in a manner that would be offensive to others. The Court held that the prohibition amounted to an impermissible content-based regulation of the first amendment right to free speech. Until this case, 48 of the 50 States had statutes preventing burning or otherwise defacing our flag. After the Johnson case was decided, Congress passed the Flag Protection Act of 1989, which sought to ban flag desecration in a content-neutral way that would withstand judicial scrutiny. Nevertheless, the Supreme Court justices struck down that Federal statute as well. It is clear that without a constitutional amendment there is no Federal statute protecting the flag which will pass constitutional muster. S.J. Res. 12 would not ban flag burning. It would not ban flag desecration. This amendment would do one thing only: give Congress the opportunity to construct, deliberately and carefully, precise statutory language that clearly defines the contours of prohibitive conduct. Some critics say that we are making a choice between trampling on the flag and trampling on the first amendment. I strongly disagree. Protecting the flag will not prevent people from expressing their points of view. I believe a constitutional amendment returning to our flag the protected status it has had through most of this Nation's history, and that it deserves, is consistent with free speech. I do not take amending the Constitution lightly. It is serious business and we need to tread carefully. But the Constitution is a living text. In all, it has been amended 27 times. Securing protection for this powerful symbol of America would be an important, but very limited, change to the Constitution. It is a change that would leave both the flag and free speech safe. Now it is time to give Americans the opportunity to amend the Constitution for something that we all agree is sacred to so many people all across this country. It is time to let the people decide.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to introduce the Public Lands Corps Healthy Forest Restoration Act of 2005. I am introducing this bill with Senators Domenici and Bingaman, whose cosponsorship I greatly appreciate. I also understand that Congressmen Greg Walden and Tom Udall are introducing an identical version of the bill in the House, which I also appreciate. This bill authorizes the Secretaries of Agriculture and Interior to enter into contracts and cooperative agreements with qualified corps to perform appropriate conservation projects, assist governments and Indian tribes in performing research and public education associated with natural and cultural resources, introduce young people to public service and expand their educational opportunities, and stimulate interest among the Nation's youth in careers in conservation and land management. Consistent with the Healthy Forest Restoration Act, this bill also identifies a series of priority projects for corps to carry out including the restoration and protection of public lands threatened by severe fire, insect or disease infestation or other damaging agents; the protection, restoration, or enhancement of forest ecosystem components to promote the recovery of threatened and endangered species; the improvement of biological diversity; and, the enhancement of productivity and carbon sequestration. In general, the Secretaries may give a preference to those corps that enroll young people who are economically, physically, or educationally disadvantaged. When it comes to the priority projects, the Secretaries shall ``to the maximum extent practicable'' give preference to those corps that have a substantial number of members who are disadvantaged. It also allows the Secretaries to grant noncompetitive hiring status to corps alumni for future Federal hiring. Finally, the bill authorizes $15 million a year, of which $10 million is for the priority projects identified in the bill and $5 million is for nonpriority projects. I have named this legislation the Public Lands Corps Healthy Forests Restoration Act because it builds on both the Public Lands Corps Act of 1993 and the recently enacted Healthy Forest Restoration Act. I also want to note that last year the administration supported an earlier, but substantially similar, version of this bill. This bill uses the cost saving resources of youth corps to carry out projects. It is estimated that youth corps generate $1.60 in immediate benefits for every dollar in costs. This figure is important given both the great need and great costs associated with fighting fires. The Federal Government is responsible for overseeing 689 million acres of land and five Federal agencies reported spending $1.6 billion in 2002 on fire fighting suppression efforts--a whopping $300 million more than the previous record. As an example of what can happen in one State, consider 2003's catastrophic wildfires in southern California. Before these wildfires were contained, they scorched a total of 739,597 acres, killed 24 people, and destroyed approximately 3,631 homes and thousands of other structures. Not only did insurance payouts cost more than $3 billion, but public expenditures for firefighting and recovery ran into the hundreds of millions of dollars. And California is certainly not the only State to incur large costs from fires. I want to reduce the chances of this type of catastrophe recurring in the future. To do so, we must use every resource at our disposal. I know that youth service and conversation corps can play a significant role in reducing the physical and financial strain that public land management agencies bear, and help protect our Nation's public lands from wildfires and other forms of devastation. I have seen firsthand the benefits that service and conservation corps bring to communities and the difference that they make in the lives of disadvantaged youth. In 1983, I founded the first urban youth corps as mayor of San Francisco, and during that time I saw a great improvement in the quality of life of the corps members and of the city itself. When the program started, it had a million-dollar budget and employed 36 disadvantaged young people 18 to 23 years old. They needed some direction, wanted a challenge, and to make themselves socially useful. That first year, we paid corps members $3.35 an hour to repair bathrooms in affordable housing for senior citizens and others, build a park in Hunter's Point, clear scotch broom from the Twin Peaks hillside, and fix up Alcatraz Island. In the subsequent 22 years, the San Francisco Conservation Corps, SFCC, has grown into a multisite, multifaceted agency that engages more than 500 young adults annually who have completed over 3.5 million hours of community service. The San Francisco Conservation Corps has also given thousands of corps members a sense of personal pride, helped connect them with their community, and prove that hard work pays off. I started the corps to help young people break out of the cycle of poverty and crime and improve their job skills by giving them guidance and support through labor-intensive activities. I am introducing this bill with the hope that the success of the San Francisco Conservation Corps can be duplicated nationwide. This program will not reach every disadvantaged young person in need of guidance and a second chance. But it is a start, and I urge my colleagues to join me in this effort. I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Thank you, Mr. President. I would like to discuss the nomination of William Pryor to the Eleventh Circuit Court of Appeals. I have closely reviewed Judge Pryor's record, and based upon it, I believe that Judge Pryor would have difficulty putting aside his extreme views in interpreting the law. Consequently, I do not believe that Judge Pryor should be confirmed to a lifetime appointment on the Eleventh Circuit Court of Appeals. Before President Bush's recess appointment of William Pryor to the Eleventh Circuit in February 2004, Pryor had not been a judge. As a result, he lacks a record as a sitting judge through which his judicial temperament and impartiality may be examined. Consequently, one must look to Judge Pryor's actions and statements throughout his career. In his career, Judge Pryor has primarily been a politician, and considering the vehemence with which he has advocated his political views, I have serious concerns that he can set aside those views and apply the law in an independent, non-partisan fashion. First, I want to be very clear about one thing. My objection to confirming Judge Pryor to a lifetime seat on the Eleventh Circuit Court of Appeals has nothing to do with Judge Pryor's personal religious beliefs. There are those who have been spreading the false statement that some Democrats vote against judicial nominees because of a nominee's religious beliefs. And that has been said about me. The majority leader even had on his Web site a newspaper column that says I voted against Judge Pryor because of his religious beliefs. So I went back and I took a look at my statement on the floor, and I took a look at my statement in the Judiciary Committee markup, and they are both clear that my concerns with Judge Pryor have nothing to do with his religious beliefs. As I stated before this body in July of 2003: Many of us have concerns about nominees sent to the Senate who feel so very strongly and sometimes stridently and often intemperately about certain political beliefs, and who make intemperate statements about those beliefs. So we raise questions about whether those nominees can truly be impartial, particularly when the law conflicts with those beliefs. It is true that abortion rights can often be at the center of these questions. As a result, accusations have been leveled that, at any time reproductive choice becomes an issue, it acts as a litmus test against those whose religion causes them to be anti-choice. But pro-choice Democrats on the Judiciary Committee have voted for many nominees who are anti-choice and who believe that abortion should be illegal--some of whom may . . . have been Catholic. I do not know, because I have never inquired. So this is truly not about religion. This is about confirming judges who can be impartial and fair in the administration of justice. Before the Judiciary Committee, I said of Judge Pryor that, ``I think his faith speaks favorably to his nomination and to his commitment to moral values, which I have no problem with. I would like people in the judiciary with positive and strong moral values.'' I am troubled that legitimate and serious concerns over Judge Pryor and other nominees have been brushed aside, and instead it is said that we on this side are trying to make a case against people of faith. That simply is not true. Thomas Jefferson wrote of the establishment clause of the first amendment, ``I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should `make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and state.'' The Supreme Court has written that ``the most important of all aspects of religious freedom in this country is that of the separation of church and state.'' It is because the separation of church and state ensures religious freedom, that some of Judge Pryor's actions and statements concern me. There are those who have minority-held religious views. There are those who have majority-held religious views. But one of the beautiful things about America is that it is a pluralistic society and that the government has stayed out of religion. The founding fathers, looking at the history of Europe, recognized the sectarian strife and religious oppression that can arise from favoring one religion over another. They came here and they founded a government where there was to be a distinct line drawn between government and religion, and it has served this country well. So when people confuse arguments that are made to support the separation of religion and government with an opposition to people of faith, they could not be more wrong. And I think this has to be made increasingly clear. We've all seen the inflammatory ads. We've all heard the commercials. I hope that a more responsible tone will be struck, because the value of the separation between church and state is based on the fact that once that bright line is broken, what one has to grapple with is which religion do you put in the courtroom? Which religion do you allow to be celebrated in a governmental framework? If the separation of church and state, that has been a part of this nation since its founding, is abolished, these become very real and very disturbing questions. Accordingly, I am extremely concerned by Judge Pryor's actions and statements promoting the erosion of the division between church and state. As deputy attorney general and attorney general of Alabama, Judge Pryor vigorously defended the display of a statue of the Ten Commandments in the Alabama supreme court. However, when questioned about whether it would be constitutional to display religious artifacts or symbols from other religions in the court room, Pryor was noticeably silent. According to an April 4, 1997 Associated Press account, Pryor said that ``the State has no position on whether the Alabama supreme court Chief Judge's right to pray and have a religious display in his courtroom extends to people of other faiths.'' That Judge Pryor did not take that opportunity to make clear that all religions are equal before our courts is distressing. Also while Deputy Attorney General, Judge Pryor defended the Alabama supreme court Chief Judge's practice of having Christian clergymen give prayers when jurors first assembled in his courtroom for a trial. Judge Pryor sought to have an Alabama trial judge declare this practice constitutional under the U.S. and Alabama constitutions. The trial judge ruled against Pryor, concluding that the prayer was unconstitutional. The judge cited the Chief Judge's own statements that ``acknowledged that through prayer in his court, he is promoting religion.'' Pryor's decision to pursue this case despite the Chief Justice's own admission that the prayer was intended to promote religion--thereby violating the establishment clause of the Constitution--is perplexing. It is imperative that our judges--particularly judges on our Courts of Appeals--respect and follow the law, especially the Constitution. I do not believe that a lawyer with Judge Pryor's record of consistent attacks on the establishment clause and the separation of church and state enshrined therein should be given a lifetime appointment to the Eleventh Circuit. Another concern I have with Judge Pryor is the extreme positions he has advocated regarding a woman's right to choose. I have voted for numerous anti-choice judicial nominees. However, Judge Pryor's positions are beyond the mainstream even of those who oppose the right to choose. Furthermore, his incendiary remarks on the subject demonstrate not only a lack of appropriate judicial temperament, but a lack of respect for the Supreme Court. Judge Pryor opposes abortion even in cases of rape and incest and supports an exception only where a woman's life is endangered. He has called Roe v. Wade ``the worst abomination of constitutional law in our history,'' and said, ``I will never forget January 22, 1973, the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children.'' As attorney general of Alabama, Judge Pryor called Roe and Miranda v. Arizona, the well known Supreme Court decision requiring that criminal defendants be informed of their right to remain silent, ``the worst examples of judicial activism.'' This depth of hostility to the established precedent of the Supreme Court is disquieting in an appellate court nominee. At his confirmation hearing, Judge Pryor had the opportunity to clarify or step back from these inflammatory remarks. Nevertheless, he stood by his statement that Roe is the ``worst abomination of constitutional law in our history''--worse than Plessy v. Ferguson, the decision upholding segregation, the Dred Scott decision, which denied citizenship and court access to all slaves and their descendants, or the Korematsu case, validating the government's internment of Japanese citizens during World War II. That a nominee for a court just below the Supreme Court believes that an existing precedent of the Supreme Court protecting a woman's right to choose is worse than long discredited decisions denying blacks citizenship or permitting segregation is deeply disturbing and out of line with the last hundred years of American jurisprudence. In statements addressing the scope of Federal Government, Judge Pryor has promoted a role so limited that the Federal Government would be forced to abdicate many of its central responsibilities. For example, he has stated that Congress ``should not be in the business of public education nor the control of street crime.'' I do not believe that the Federal Government should ignore critical matters like education and crime, and neither do most Americans. However, my larger concern is not that Judge Pryor's position is contrary to my viewpoint or even that it is contrary to the views of most Americans, but that it is contrary to binding Supreme Court precedent establishing the breadth of the Federal Government's powers. This extremely limited view of the role of Federal Government is reflected in the positions Judge Pryor has taken on a number of important issues. Testifying before the Judiciary Committee as attorney general of Alabama in 1997, Judge Pryor urged the repeal of Section 5 of the Voting Rights Act, calling it an ``affront to federalism, and an expensive burden that has far outlived its usefulness.'' Section 5 of the Voting Rights Act requires any changes in voting laws in states with a specific history of voting discrimination to be pre-cleared by the Justice Department or the Federal District Court in Washington. D.C. to ensure they have no discriminatory purpose or effect. In this way, Section 5 of the Votings Rights Act has been a critical tool in guaranteeing the voting rights of minorities. Today, Section 5 of the Voting Rights Act continues to ensure voting rights. In the last ten years, Section 5 of the Voting Rights Act has been applied in more than a half-dozen states to ensure that districts are not redrawn to intentionally dilute minority votes and that polling places are not moved for the primary purpose of discouraging minority voting. Judge Pryor's strong criticism of this important safeguard of civil rights, particularly on federalism grounds--meaning he believes that the Federal Government has no right to intervene, even where a citizen's right to vote is threatened--concerns me. One of Judge Pryor's legacies as attorney general of Alabama is his effort to weaken and undermine the Americans with Disabilities Act, passed in 1990 to protect the rights of the disabled. For example, in Tennessee v. Lane, Pryor, then attorney general of Alabama, submitted an amicus brief seeking to deny a disabled defendant access to his own trial. Pryor argued that the constitutional guarantees of equal protection and due process ``do not require a State to provide unassisted access to public buildings'' and even took the extraordinary position that there is no absolute right for a defendant to be present at his own criminal trial, stating that ``even as to parties in legal proceedings, there is no absolute right to attendance.'' The Supreme Court rejected these extreme positions advocated by Pryor. Pryor's repeated attempts to use judicial means to undo the legislation protecting basic civil rights raise questions about both his willingness to protect individual's civil rights and his propensity to judicial activism-- using the courts as a partisan vehicle to undo legislation he does not support. Supporters of Judge Pryor's nomination point to his brief record as a recess appointee to the Eleventh Circuit as evidence of Judge Pryor's ability to set aside his strong political views. While Judge Pryor, in his short tenure on the Eleventh Circuit has not authored any particularly controversial opinions, decisions he has written addressed what are largely technical and uncontroversial legal issues. Judge Pryor's brief stint as a recess appointee may or may not offer a representative preview of the opinions he would render as a lifetime member of the Eleventh Circuit. Ultimately, my concern is that Judge Pryor does not display the dispassionate, independent view that we want from our judges. While in private practice, Pryor's commitment to the Republican Party apparently interfered with his representation of clients. Valstene Stabler, a partner at the Birmingham firm of Walston, Stabler, Wells, Anderson & Baines, described Pryor as being ``so interested in what the Republican Party was doing in the state, he was having trouble devoting attention to his private clients.'' A Washington Post editorial observed that: Mr. Pryor's speeches display a disturbingly politicized view of the role of the courts. He has suggested that impeachment is an appropriate remedy for judges who ``repeatedly and recklessly . . . overturn popular will and . . . rewrite constitutional law.'' And he talks publicly about judging in the vulgarly political terms of the current judicial culture war. He concluded one speech, for example, with the following prayer: ``Please, God, no more Souters'' a reference to the betrayal many conservatives feel at the honorable career of Supreme Court Justice David H. Souter. Republicans who have worked with Judge Pryor have voiced concerns over his ability to be an independent, non-partisan judge. Grant Woods, the former Republican attorney general of Arizona said that ``he would have great question of whether Mr. Pryor has an ability to be non- partisan. I would say he was probably the most doctrinaire and most partisan of any attorney general I dealt with in 8 years. So I think people would be wise to question whether or not he's the right person to be non-partisan on the bench.'' A judge must be able to set aside his views and apply the law evenly and fairly to all. Mr. Pryor's intemperate legal and political beliefs, and his strident statements and actions in furtherance of those beliefs, have led me to question whether he can be truly impartial. Aside from his brief tenure on the Eleventh Circuit as a recess appointee, Judge Pryor has no judicial record upon which to evaluate him. Consequently, we must consider his fitness for the Eleventh Circuit on the basis of his actions and statements as deputy attorney general and attorney general of Alabama. Looking back on this highly partisan and controversial tenure, I cannot vote for Judge Pryor's confirmation to a lifetime appointment on the Eleventh Circuit Court of Appeals.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, of all the nominations contested in the past few weeks, Justice Brown's is the clearest cut. Justice Brown has given numerous speeches over the years that express an extreme ideology that is far outside the mainstream of American jurisprudence. In those speeches, Justice Brown used stark hyperbole, and startlingly vitriolic language which has been surprising, especially for a State supreme court justice. But statements alone would not be enough for me to oppose her nomination. Rather, my concern is that her personal views drive her legal decisionmaking. On far too many occasions, she has issued legal opinions based on her personal beliefs, rather than existing legal precedent. I am troubled that Justice Brown is bound by her personal views of what the law should be rather than following the law as written and enacted. This is especially troubling for a candidate who is being nominated to the D.C. Circuit Court of Appeals. The D.C. Circuit is an especially important court in our Nation's judicial system. It is recognized as the most prestigious and powerful appellate court below the Supreme Court because of its exclusive jurisdiction over constitutional rights and government regulations. Given this exclusive role, the judges serving on this court play a special role in evaluating government actions. Each year, the Supreme Court routinely reviews fewer than 100 cases. Therefore, circuit courts, like the D.C. Circuit, end up as the forums of last resort for nearly 30,000 cases each year. These cases affect the interpretation of the Constitution as well as statutes intended by Congress to protect the rights of all Americans, such as the right to equal protection of the laws and the right to privacy. Specifically, the D.C. Circuit Court is the most likely venue where Federal regulations and government actions will be upheld or overturned. Yet Justice Brown, throughout her career, has demonstrated an open hostility towards government. This hostility is concerning given that, if Justice Brown serves on the D.C. Circuit, she will play a decisive role in evaluating government actions. For example: In a 1999 speech Justice Brown stated: My thesis is simple. Where government advances--and it advances relentlessly--freedom is imperiled; community impoverished; religion marginalized; and civilization itself marginalized. At a 2000 Federalist Society event, Justice Brown stated: Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched, culture which finds moral depravity entertaining and virtue contemptible. The Senate should not confirm a judge to this important court who has shown such blatant contempt for the government. Again, to be clear, if it were only hyperbolic statements in speeches then maybe we could look past the rhetoric. However, the extreme views expressed in Justice Brown's speeches also emerge in the opinions she has rendered as a judge. In various cases involving even modest government regulations she has issued opinions that ignore the law and established precedent. One example I would like to discuss involves a property issue in my home city, San Francisco, and it is a case with which I am familiar since the ordinance was enacted during the time I served in San Francisco's government. The case is San Remo Hotel v. San Francisco. In response to a low- income housing emergency for elderly residents, San Francisco enacted an ordinance requiring hotels to obtain a permit before converting long-term residential housing into short-term tourist hotel rooms. To obtain a permit, hotels either had to provide mitigation for the removal of the residential rooms by offering alternative housing, or pay a fee to be used for the relocation of tenants. In San Remo Hotel v. San Francisco, the owners of a hotel sued the City of San Francisco, claiming that the ordinance constituted an illegal ``taking'' of property by the city. Following U.S. Supreme Court precedent, the California Supreme Court held that the ordinance did not constitute a ``taking'' of the hotel's property since the ordinance did not physically ``invade'' the property and since the ordinance ``substantially advance[d] legitimate state interests.'' In contrast, Justice Brown wrote in her dissent in the San Remo case that: Private property, already an endangered species in California, is now entirely extinct in San Francisco. The City and County of San Francisco has implemented a neo-feudal regime where the nominal owner of property must use that property according to the preferences of majorities that prevail in the political process--or worse, the political powerbrokers who often control the government independently of majoritarian preferences. The majority described Justice Brown's dissenting opinion by saying that she argued, with little citation or support, that ``government should regulate property only through rules that the affected owners would agree indirectly enhance the value of their properties.'' If this view were the law it would make it almost impossible for any city, State, or local government to make any policies for the benefit of the community as a whole. No local government could downzone property, no Federal agency could prepare a habitat conservation plan. Under Justice Brown's analysis they would all be illegal takings of one kind or another. The majority decision of the California Supreme Court went on to criticize Justice Brown for attempting to ``impose'' her own ``personal theory of political economy on the people of a democratic state.'' Furthermore, Justice Brown's written opinion was at odds with the current legal precedent of the U.S. Supreme Court at that time. And, in fact, earlier this year, Lingle v. Chevron, the U.S. Supreme Court unanimously rejected a takings analysis similar to the one set forth in Brown's dissent in San Remo. Nevertheless, Justice Brown permitted her personal views to overwhelm her obligation as a judge to follow the law. While Justice Brown certainly has a right to private views that may conflict with the law, a judge may not substitute her personal opinions for the law. I also believe it is illuminating to put Justice Brown's views and legal opinions in the context of the court of which she is a member. Justice Brown often stands on an island by herself as the lone dissenter on a court made up of six Republican justices and only one Democratic justice--approximately one-third of the cases she has written have been dissents, and in 10 percent of those cases, she has been the lone dissenter. For example, in the 2004 case of Catholic Charities of Sacramento v. Superior Court of Sacramento County, Justice Brown cast the sole dissenting vote. She argued against upholding a State statute that requires employers whose insurance covers prescription drugs to include prescription contraceptives in their coverage. In her dissent, she suggested that, if women had a problem with their inequitable treatment, they were free to find ``more congenial employment,'' and stated that because women seeking contraception were a minority of insured employees, striking down the law would have a ``negligible effect.'' Based on her pattern of taking this contrarian role, she has been widely criticized, even among her Republican colleagues, for her caustic writings. Sources on the court reportedly stated that her fellow justices have privately complained about her ``poison pen'' and have called Justice Brown a ``loose cannon when she has a typewriter in front of her.'' Republican Chief Justice Ronald M. George has even taken the unusual step of pulling her aside and asking her to tone down her scathing criticism of majority rulings. In addition to her tone, her legal reasoning has often been criticized by her colleagues. In one example, Nike v. Kasky, Nike was accused of providing abusive conditions for their overseas workers including forced overtime, exposing workers to health hazards, and subjecting workers to verbal, physical and sexual mistreatment. Nike denied the mistreatment and made numerous statements touting a positive record and was sued for misrepresenting its labor practices at Asian factories. The majority of the California Supreme Court determined the statements made by Nike were commercial speech and thus entitled to less constitutional protection. Justice Brown dissented, saying the speech should have been protected even if false. In her dissent, Brown called on the U.S. Supreme Court to overturn a long line of cases which distinguish commercial and noncommercial speech. Republican Justice Kenard criticized Brown's dissent, saying: Sprinkled with references to a series of children's books about wizardry and sorcery, Justice Brown's dissent itself tries to find the magic formula or incantation that will transform a business enterprise's factual representations in defense of its own products and profits into noncommercial speech exempt from our state's consumer protection laws. I am deeply troubled when a Justice's own colleagues express grave concerns about an individual's legal reasoning, and demonstrate a willingness to openly criticize a fellow member of the bench. An overarching principle of both Republicans and Democrats is that the role of a judge is to follow the law, regardless of one's personal ideology. Yet, repeatedly, Justice Brown has allowed her personal opinion to override a fair application of the law and has altered her legal reasoning in order to achieve a desired result. Law school professor Gerald Uelmen said that Justice Brown's opinions may be interpreted as ``motivated by politics rather than the law.'' When examining her record, it appears that the thread of logic sewn through her legal opinions is her desire to achieve a predetermined outcome based on her personal views. In case after case, Justice Brown significantly changes her legal reasoning to implement a results- oriented approach based on her view of what the law should be. When Justice Brown wanted to limit the explicit right to privacy in California's Constitution, she argued: ``Where, as here, a state constitutional protection was modeled on a Federal constitutional right, we should be extremely reticent to disregard U.S. Supreme Court precedent delineating the scope and contours of that right.'' But when the question of remedies for a violation of constitutional rights arose, she said: ``Defaulting to the high court fundamentally disserves the independent force and effect of our Constitution. Rather than enrich the texture of our law, this reliance on Federal precedent shortchanges future generations.'' These cases both involved the role of precedent and following the decisions of previous courts. However, depending on the facts of the case Justice Brown changed her legal opinion about whether judges should follow precedent; in one case she discussed the importance of following precedent, yet in the other she argued that reliance on precedent can be harmful. When examining the role of juries and their ability to evaluate a case, once again, Justice Brown makes conflicting arguments. In order to limit damages against employers in worker discrimination suits, Brown wrote: When setting punitive damages, a jury does not have the perspective, and the resulting sense of proportionality, that a court has after observing many trials. But, when criminal defendants' cases--not businesses--were being evaluated, Justice Brown wrote: I do not share the majority's dim view of jurors. Rather, I would presume, as we do in virtually every other context, that jurors are intelligent, capable of understanding instructions and applying them to the facts of the case. Justice Brown's conflicting legal reasoning also appears when her decisions examine the assessment of damages. When the plaintiffs were victims of employment discrimination, Justice Brown supported limits on punitive damages. But, when the plaintiffs were property owners in a mobile home park who had to previously abide by rent control laws, she opposed any limit on damages. In each of these contrasting examples, Justice Brown has used legal reasoning that has conflicted. It is concerning when a judge seems to alter her legal reasoning based on her personal view of a case, rather than employing consistent legal reasoning regardless of who is making the argument, or who would be impacted by its effect. Based on this record, parties in a case have no idea whether Justice Brown will rely on precedent or decide it is an impediment, whether she will defer to the legislature or decide it's time for her or other judges to make law; whether she will trust the jury to evaluate the case or decide they cannot make the necessary evaluations; or whether she will protect unlimited damages or order that there needs to be limits on damages. Those who come before a court need to be assured that they are going to be given a fair hearing with an impartial arbiter. Justice Brown's record demonstrates that those who come before her court will not have such assurances. Not surprisingly, Justice Brown's nomination has ignited strong and far-reaching opposition. Both Senators from her home State and almost two dozen members of California's congressional delegation oppose her nomination. The Congressional Black Caucus opposes her nomination, as does every major African American organization in the country, including the National Black Chamber of Commerce, NAACP, the National Bar Association, the California Association of Black Lawyers, and the Leadership Conference on Civil Rights. The California Association of Black Lawyers stated: We would like to see an African American female be elevated to a higher court. But as the group's president went on to explain: We do not see how we can support someone who is diametrically opposed to our goals. In adddition, unlikely conservative commentators have affirmed concerns raised by opponents of Justice Brown's nomination: National Review Senior Editor Romesh Ponnuru discussed Brown's troubling statements and her willingness to embrace judicial activism and concluded that ``if a liberal nominee to the courts said similar things, conservatives would make quick work of her.'' George Will concluded that Justice Brown is ``outside of that mainstream'' of conservative jurisprudence; and Conservative columnist Andrew Sullivan wrote: Whatever else she is, she does not fit the description of a judge who simply applies the law. If she isn't a `judicial activist,' I don't know who would be. Evaluating judicial nominations is a very difficult process, and it is one that ignites passionate feelings from all sides. Clearly, Presidents from different parties will choose very different nominees for the Federal courts. However, there are basic principles that every nominee must follow regardless of which party is in power. As Senator Hatch stated in 1996 when opposing the confirmation of Judge H. Lee Sarokin to the U.S. Court of Appeals for the Third Circuit and Judge Rosemary Barkett to the U.S. Court of Appeals for the Eleventh Circuit: Many of these judges are activists who simply cannot understand that their role is to interpret the law, not to make it . . . I led the fight to oppose the confirmation of these two judges because their judicial records indicated that they would be activists who would legislate from the bench. Legislating from the bench, being an ``activist'' judge, has been a concern of members of both parties. It is a basic principle used when evaluating nominees--judges must follow the law, not manipulate the law to serve their own political ideology. As I have discussed today, Janice Rogers Brown is widely opposed by a broad coalition of prominent leaders and organizations, she has been criticized by her Republican colleagues on the court, and she has made astoundingly vitriolic statements about everything from senior citizens to the government. While each of these concerns raises significant questions about her qualifications to serve on the D.C. Circuit Court of Appeals, for me, most importantly, Janice Rogers Brown does not meet the basic principle used to evaluate judicial nominees by both parties--will they follow the law? Unfortunately, Janice Rogers Brown's record does not demonstrate that she will be able to put aside her personal views and follow the law.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to express my opposition to the nomination of John Bolton to be the next United States Ambassador to the United Nations. Simply put, he is the wrong man at the wrong time for what is an important and critical position. At a time when the reputation of the United States is at an all time low in many parts of the world and our military is stretched thin, we need a representative at the United Nations who can engage and work with our friends and allies to forge multilateral solutions on: the war on terror, the proliferation of weapons of mass destruction, global poverty, the HIV/AIDS pandemic, and global warming, just to name a few. Yet throughout his career, John Bolton has demonstrated an unrestrained contempt for diplomacy and international treaties. In a letter to Senator Richard Lugar, chairman of the Foreign Relations Committee, 102 former American diplomats representing both Democratic and Republican administrations urged the committee to reject Mr. Bolton's nomination because of his ``exceptional record of opposition to efforts to enhance U.S. security through arms control. The letter notes that Mr. Bolton led the effort against ratification of the Comprehensive Test Ban Treaty; blocked a more robust international agreement to curb the proliferation of small arms; led the effort to block the Ottawa Landmine Treaty; led the effort to have the United States withdraw from negotiations to formulate a verification system for the Biological Weapons Convention; and led the campaign to have the U.S. withdraw from the ABM Treaty. What sort of message do we send to our friends and allies by nominating an ideologue and not a consensus builder for this leading post at the United Nations? I, for one, am unaware of another nominee to an international body who has garnered so much opposition from individuals who have served on the front lines of American diplomacy. The fact is, these 102 U.S. diplomats who have written in strenuous opposition to Mr. Bolton recognize that dialogue, cooperation, and, yes, compromise are essential if we are to build alliances and enlist the support of other states in tackling the common problems we all face. By opposing virtually every meaningful arms control treaty over the past few years, John Bolton has placed his faith in a unilateral, go- it-alone foreign policy that has stretched our military thin and dramatically weakened respect for America in the world. I had hoped that President Bush would make the rebuilding of our friendships and alliances a priority for the next four years. The nomination of Mr. Bolton sends precisely a different signal that the U.N. will continue to be our rhetorical whipping boy. We all know that we cannot afford to go it alone in taking on the great challenges in front of us. It is faulty to assume that once he arrives at the United Nations headquarters in New York, John Bolton will suddenly discover a new faith in diplomacy and international agreements. It is also a stretch to assume that John Bolton will likewise discover a newfound faith in the United Nations and its mission. Many of Mr. Bolton's comments about the United Nations have been raised before but they are worth repeating. Such as: There is no such thing as the United Nations. There is an international community that occasionally can be led by the only real power left in the world and that is the United States when it suits our interest and we can get others to go along. The secretariat building in New York has 38 stories. If you lost ten stories today it wouldn't make a bit of difference. If I were redoing the Security Council today, I'd have one permanent member because that's the real reflection of the distribution of power in the world . . . the United States. As my friend and colleague Senator Biden has stated, when you listen to quotes such as these, you wonder why Mr. Bolton would even want the job of Ambassador to the United Nations. Indeed, given his disdain for the institution and the other members of the Security Council, Mr. Bolton is unlikely to find a receptive audience for his ideas and initiatives, much less be able to forge alliances to protect American interests and increase global security. How successful is Mr. Bolton likely to be in enlisting United Nations support for promoting political stability and economic development in Iraq and Afghanistan; stopping the genocide in Darfur; convincing North Korea and Iran to forgo their respective nuclear weapons programs; combating the global HIV/AIDS pandemic; stopping the proliferation of weapons of mass destruction; and fighting the war on terror? To say the least, I have little confidence in Mr. Bolton's chances for success if he is confirmed and his inability to be an effective and constructive ambassador will produce disastrous consequences for American foreign policy. In response to the mounting criticism of the President's nomination, the administration has attempted to shift the debate from Mr. Bolton's qualifications to the need for reform of the United Nations. A vote for Mr. Bolton is a vote for reform at the U.N., they argue. A vote against Mr. Bolton is a vote for the status quo. A blunt, no- nonsense approach is needed to get the job done. Nothing could be further from the truth. Mr. Bolton has made it clear that he does not have faith in multilateral diplomacy or the mission of the United Nations. Why should we expect him to be committed to a more effective United Nations? How effective is a blunt manner if the individual is unprepared to listen or compromise? United Nations Secretary General Kofi Annan has produced a report on recommendations for reforming the U.N. so that it can better tackle the challenges of the new century. The United States should play a meaningful and constructive role in that debate. But his inflexible views and harsh temperament suggest to me that Mr. Bolton will himself be the issue at the U.N.--not the steps that need to be taken to improve the workings of the institution. Let me turn now to several allegations have been made about Mr. Bolton's past conduct as Under Secretary of State for Arms Control and International Security that raise serious questions about his fitness to serve as United States ambassador to the United Nations. As detailed in the minority report of the Senate Foreign Relations Committee on his nomination, Mr. Bolton sought to replace two intelligence analysts, Christian Westermann, a State Department analyst in the Bureau of Intelligence and Research, and the National Intelligence Officer, NIO, for Latin America at the Central Intelligence Agency, who refused to back his assertion that Cuba was developing a biological weapons program; exaggerated intelligence on Cuba's biological weapons program and Syria's nuclear activities to fit his own personal views; and pushed for the dismissal of a State Department official he wrongly accused of purposefully withholding a document. Supporters of Mr. Bolton's nomination argue that these charges should fall by the waistside because no one lost their job and his statements largely reflected the views of the intelligence community. Even if you assume that this is true, Mr. Bolton's efforts to trash intelligence analysts and pattern intelligence to fit his views, had a chilling effect on the intelligence community and its ability to provide sound, credible intelligence. Robert Hutchings, the former Chairman of the National Intelligence Council, told the Foreign Relations Committee: [W]hen policy officials come back repeatedly to push the same kinds of judgments, and push the Intelligence Community to confirm a particular set of judgments, it does have the effect of politicizing intelligence, because the so called `correct answer' becomes all too clear . . . it creates a climate of intimidation and a culture of conformity that is damaging. Given the failure of pre-war intelligence on Iraq and the profound negative impact that failure had on the credibility of the United States in the international community, we should not send a representative to the United Nations who has sought to conform intelligence to his stated views and punish those who disagreed with him. Indeed, the next United States Ambassador to the United Nations may very well be charged with gathering international support to convince Iran and North Korea to abandon their nuclear weapons programs. A person of Mr. Bolton's credibility on intelligence matters is unlikely to garner much support and, indeed will likely face stiffer opposition. Surely the President can find another nominee who is committed to multilateral diplomacy and appreciates, rather than denigrates, the goals and mission of the United Nations. Despite what the administration may assert about Mr. Bolton's ``blunt'' manner, such an individual will be far more effective at representing United States interests, shaping alliances to confront problems that transcend borders, and encouraging U.N. reform. Mr. Bolton has made a career out of shunning diplomacy, blasting the United Nations, ignoring the advice of others, and moving ahead with a foreign policy that emphasizes arrogance over leadership. In these difficult times, he is a risk, not an asset, in advancing our national security interests abroad and on that basis does not deserve the Senate's support in confirming his nomination.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to pay tribute to the millions of Americans of Asian and Pacific heritage for their significant contributions and service to strengthen this great Nation, and to join the Nation in celebrating Asian Pacific American Heritage Month. First, I would like to take this opportunity to recall the pioneers of Asian Pacific American Heritage Month. Through their vision and leadership, Frank Horton, Norman Y. Mineta, Daniel Inouye, and Spark Matsunaga successfully empowered Asian and Pacific Islander Americans by establishing a period of celebration that recognized the many contributions Asian and Pacific Islanders have made for over a century. They chose May to commemorate Asian Pacific Heritage Month because that is when the first Japanese immigrants came to the United States in 1843. It is also the anniversary of the completion of the transcontinental railroad in 1869. This year's theme for Asian Pacific American Heritage Month, ``Liberty and Freedom for All,'' honors the remarkable accomplishments Asians and Pacific Islanders from all walks of life have made to their communities. I want to pay particular tribute to the thousands of Asian Americans serving in our armed forces and thank them for their invaluable service for defending our country and securing freedom abroad. The Asian American tradition of U.S. military service can be traced back as far as the War of 1812, and our country is grateful for the military service of more than 300,000 Asian Pacific American veterans. We are particularly indebted to the famous ``Go for Broke'' 442nd regimental combat team of Japanese American soldiers of World War II. The 442nd regiment was the most highly decorated unit in American military history--with more than 21 Medal of Honor winners, including my dear colleague, U.S. Senator Inouye. In spite of the discrimination and racism of those tumultuous times, these Asian American service members performed above and beyond the call of duty. I also want to take a moment and honor the memory of one of the Asian American community's greatest political leaders and a trusted colleague of mine, U.S. Representative Robert Matsui. As a youth, Bob Matsui and his family were interned at Tule Lake Camp for more than three years during World War II, but Bob overcame these challenges to go on and pursue a distinguished career in public service. One of Bob's most significant legacies was his work prompting the U.S. government to make amends with Japanese Americans who were interned during World War II. It was due to Bob's dedication and perseverance that the U.S government finally issued a formal apology for the Japanese-American internment program and also provided due compensation to the victims of this policy. In tribute to his outstanding achievements, Senator Boxer and I helped name the Federal courthouse in Bob's hometown of Sacramento in his honor. His work and his legacy will be fondly remembered and he serves as a shining example of the extraordinary achievements of Asian and Pacific Islander Americans. This year, the Asian American community also saw the passing of the civil rights leader, Fred Korematsu. Mr. Korematsu's defiance of the ill-conceived Japanese internment policy during World War II was an incredibly courageous act. His challenge of the Japanese internment policy made its way to the U.S. Supreme Court, the highest court in the land. In recognition of his courageous actions, President Clinton awarded Mr. Korematsu the highest civilian honor, the Presidential Medal of Freedom, in 1998. Mr. Korematsu and Bob Matsui are testaments to the remarkable display of courage, will, and determination of millions of Asian Americans to succeed in our country despite personal hardships and at times, discrimination. Currently, Asian Pacific Islander Americans constitute one of the fastest growing minority communities in the United States, and I am proud to recognize the State of California as home to the greatest number of Asian Pacific Islander Americans. There are over 13 million Asian Pacific Islander Americans in the nation with more than 4.5 million living in California. With this wealth of Asian American diversity, our State is enriched by many famous ethnic enclaves such as San Francisco's Chinatown, Westminster's Little Saigon, and the City of Artesia's Little India. In fact, the second largest populations of Filipino, Korean, and Vietnamese in the world are located in California. In this congressional session, I am hoping to help preserve some of the unique Asian American immigration history in my State. Senator Boxer and I have introduced legislation to help provide Federal funding for the Angel Island Immigration Station, known as the ``Ellis Island of the West.'' The Angel Island Immigration Station, a national historic landmark, was the entry point for over 1 million immigrants from 1910-1940, including approximately 175,000 Chinese immigrants. Angel Island is a precious part of our Nation's history and tells the story of many people who came to America to make a better life for their families. As we join the Nation in celebrating the rich and diverse Asian and Pacific Island cultures during Asian Pacific American Heritage Month, we are not only recognizing many notable achievements, but we are also reminded of the struggles and sacrifices endured to live and experience the American dream. I am pleased to take this time today to honor the distinguished accomplishments of Asian Pacific Americans during this year's Asian Pacific American Heritage Month.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today along with Senator Hagel, Senator Lautenberg, Senator Durbin, Senator Corzine, and Senator Feingold to submit a resolution calling on the parties participating at the Seventh Review Conference in New York City to reaffirm their support for and take additional measures to strengthen the Nuclear Nonproliferation Treaty. Our resolution calls on parties to the conference to, among other things: insist on strict compliance with the nonproliferation obligations of the Treaty and to undertake effective enforcement measures against states that are in violation of their Article I or Article II obligations; agree to establish more effective controls on sensitive technologies that can be used to produce materials for nuclear weapons; support the efforts of the United States and the European Union (EU) to prevent Iran from acquiring a nuclear weapons capability; support the Six-Party talks that seek the verifiable disarmament of North Korea's nuclear weapons program; accelerate programs to safeguard and eliminate nuclear-weapons usable material to the highest standards to prevent access by terrorists or other states; agree that no state may withdraw from the Treaty and escape responsibility for prior violations of the treaty or retain access to controlled materials and equipment acquired for ``peaceful'' purposes, and; accelerate implementation of the NPT-related disarmament obligations and commitments that would, in particular, reduce the world's stockpiles of nuclear weapons and weapons-grade material. More than 180 states have gathered in New York to review progress on implementing their respective obligations as signatories of the Treaty and discuss additional steps each party can take to fulfill all of the NPT objectives. The Nuclear Nonproliferation Treaty has played a critical role in protecting U.S. national security interests and promoting peace and stability in the international community by bringing nuclear armed and non-nuclear armed states together to stop the proliferation of nuclear weapons. Each party has clear and specific obligations. States with nuclear weapons pledge to eventually eliminate them while states without nuclear weapons pledge not to acquire them. The track record of the Treaty speaks for itself. This framework has successfully convinced countries such as Ukraine, Kazahkstan, Belarus, Libya and South Africa to forgo possession of nuclear weapons. At the dawn of the nuclear age, who would have thought this would be possible? Simply put, the fewer number of states with nuclear weapons, the less likely such weapons will be used or fall into the wrong hands. The Treaty has saved lives and prevented unthinkable catastrophe. The success of the Treaty is a testament to United States leadership and our commitment to multilateral diplomacy and cooperation. The gains in the area of nuclear nonproliferation over the past thirty plus years would not have been possible if we had chosen to shut ourselves out of the international community or take on the great challenges of the world on our own. And, I might point out, as a signatory to the Treaty, we have increased the security of Americans and our national security interests at a far less cost than any military intervention. Successful arms control treaties give us more bang for our buck. Now is a critical opportunity to examine the successes of the past and the steps all parties can take to strengthen the Nuclear Nonproliferation Treaty in the future. Indeed, the world has changed dramatically since the last Review Conference in 1995 and the challenges to the nuclear nonproliferation regime have become more acute. In the past few years we have witnessed: the September 11th attacks and the intent of terrorist groups such as al-Qaeda to acquire and use nuclear weapons; the discovery of the AQ Khan nuclear black market; North Korea's withdrawal from the Nuclear Nonproliferation Treaty and announcement that it possessed nuclear weapons; the exposure of Iran's violations of its obligations as a signatory of the Nuclear Nonproliferation Treaty and the possibility that states may use the ``Article 4 loophole'' and develop a nuclear fuel cycle capability; the existence of global stockpiles of nuclear weapons usable materials. Combined with an uncertainty on the part of non-nuclear weapon states about the intent of nuclear weapon states to fulfill their disarmament obligations, these challenges threaten the continuation of a successful nuclear nonproliferation regime. As the United Nation's report ``A More Secure World'' states: ``We are approaching a point at which the erosion of the nonproliferation regime could become irreversible and result in a cascade of proliferation.'' North Korea has already withdrawn from the Treaty and escaped penalty. Iran may be next. How many others will follow if we stand still and do nothing to strengthen the NPT? It would be an understatement to say that the collapse of the nuclear nonproliferation regime will have a devastating effect on the security and stability of the entire world. That is why the Review Conference is so important and why we must not let divisions between nuclear armed and non-nuclear armed states prevent the conclusion of a successful conference. We must come together to breathe new life into the nuclear nonproliferation regime and seriously consider the steps outlined above that will strengthen the treaty and make the world safer from the threat of nuclear terror. I urge my colleagues to support this resolution.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I come to the floor to make a plea to my colleagues and my friends on both sides of the aisle. I have spoken on this issue twice. But within 24 hours, the time will come when the Senate may well be changed. Right now is the time to let political pressures cool, to step back from the brink and to reflect on the long- term consequences rather than the short-term gain. The time has come to walk away from a decision that will turn our governmental system on its head. The reason this is called the nuclear option is not necessarily what it would do to the body but what it does to our ability to control the rules of the body. Because for the first time in history, a rule will be changed or, as we on this side of the aisle say, broken, by a majority vote, 51 votes, a majority of the Senate, when in fact rule changes require a two-thirds majority vote. There is virtually no rule that I know of in this body that can be changed with 51 votes. I understand that it is going to be done without consultation of the Parliamentarian. My understanding is that he would say it is not within the Senate rules or precedent to change this rule with only 51 votes. Nonetheless, it is going to be done. When taken to its logical conclusion, a majority vote in favor of the nuclear option will fundamentally alter our democracy, not only by breaking the rules as I just described but by altering the fundamental balance between this body and the other House and, most particularly, the role that Senators have had representing their constituents for over 200 years. I recognize we may not agree on the qualifications of the nominees before us. I recognize many of my friends on the other side of the aisle feel very strongly about confirming these candidates to the court. But in the end, regardless of who is right and who is wrong, changing the Senate's rules, throwing out precedent, will profoundly harm this body, the comity we enjoy, the moderation that has defined the Senate, the bipartisanship that is essential, and the balance of power that is needed to maintain any form of a democratic government, particularly this one. This nuclear option changes the deliberative nature of this body because it, in effect, ipso facto changes the Senate into the House of Representatives so that the Senate will work its will by majority. That has never necessarily been the case before. We all know the Senate is like a huge bicycle wheel. When one of the 100 spokes is out of line, it stops the wheel. So everybody respects that and pulls back from the brink because of it because we know if we are the one that puts on the hold or stops the wheel from turning, that we also can feel that happen to us with our legislation and our bills. Former Republican Senator Warren Rudman, whom I greatly respect--he represented New Hampshire from 1980 to 1993--was quoted in the press this weekend. Let me share with you what he said: I will lament this vote if it succeeds. People tend to look at the history of the Senate and how it functions, and my bottom line is that the Founding Fathers wanted a true balance of power and this would shift the balance of power to the White House. My sense is, thinking back on it, that I don't think you could have gotten 51 votes on this sort of thing in the past. . . I would have clearly voted against it. That was Warren Rudman this past weekend. I urge my colleagues on the other side of the aisle to stand up against the political tidal wave pushing this agenda and let the passions of the moment cool. The debate last week was overwhelmed with fiery rhetoric and political posturing. One Republican compared Democrats to Adolf Hitler. Another Senator insinuated that Democratic opposition is based on a nominee's religious faith. Others twisted the history of judicial nominations beyond recognition. And to be fair, some Senators on our side of the aisle also employed fiery language. Just listening to this debate, we can see what will happen if the majority goes forward on this path. The Senate will most certainly face a loss of civility, a loss of respect for differences. Political message will overwhelm substantive policy, and political potshots will drive our debates rather than the best interests of the American people. Playing to the base rather than playing out the real-life consequences of our acts will rule the day. Regardless of each of our opinions on whether each nominee before the Senate should be appointed to the appellate courts, the aftermath of the nuclear option will not serve the American people well. On two prior occasions, I have come to the floor to talk about the importance of checks and balances, the intentions of our Founding Fathers, the structure of the Constitution, and the inherent benefits of conflict and compromise. Our forefathers knew, as do our modern counterparts, that essential to a true democracy is the need for a balance of power because who is in the minority has, and will, constantly change. Democrats held the House majority for over 50 years, and now Republicans have been in the majority for over a decade. Democrats held the White House for 8 years. Now Republicans will have occupied the White House for 8 years. The swing back and forth between the majority and the minority applies not just to political parties but to populations and ideas as well. Populations change and the political pendulum swings, but what moderates those swings and the tidal wave of power is the role and influence of the minority. While it is true many of us on this side of the aisle were frustrated when Republicans used their rights and the Senate rules to block Clinton's judges and our legislative agenda, we aired our frustration. At that time, I urged my colleagues to allow a vote. However, I did not advocate breaking the rules with 51 votes and employing the nuclear option as a way to force Republicans to their knees. The role of moderation has worked and has been an important balance in our country. As my colleague, Senator Lieberman, said last week: In a Senate that is increasingly partisan and polarized and, therefore, unproductive, the institutional requirement for 60 votes is one of the last best hopes for bipartisanship and moderation. For example, President Clinton understood the strong feelings of our Republican colleagues on judges, and he went to extensive efforts to consult Republicans on judges that would be nominated. In describing these efforts, Senator Hatch wrote in his book that he ``had several opportunities to talk privately with President Clinton about a variety of issues, especially judicial nominations.'' Senator Hatch described how when the first Supreme Court vacancy arose in 1993, ``it was not a surprise when the President called to talk about the appointment and what he was thinking of doing.'' He went on to describe that the President was thinking of nominating someone who would require a ``tough political battle.'' Senator Hatch recalled that he advised President Clinton to consider other candidates and suggested then-DC Circuit Judge Ruth Bader Ginsburg, as well as then- First Circuit Judge Stephen Breyer. So there was a defined, informal consultation that showed the power and authority of the Republican chairman of the Judiciary Committee, who actually submitted to the President--at that time Bill Clinton--the names of Ruth Bader Ginsburg and Stephen Breyer for appointment to the Supreme Court. However, today there is not really active consultation by this administration in most cases. Instead, there appears to be a kind of disregard for the opinions of all Democratic Senators, even home State Senators. I know my colleagues from Michigan have been extremely frustrated in their efforts to find a solution to the stalemate over the Sixth Circuit. I am also concerned that if the nuclear option moves forward, there will no longer really be a need for the Judiciary Committee. I ask my colleagues to think about this. If the President is to be given unlimited power to appoint whomever he chooses, there will be no need for hearings, there will be no need for an examination of a nominee's record. Any dissent or concerns will fall on deaf ears, so long as there are at least 50 Senators willing to confirm the President's choices for the Federal bench. Checks and balances are not new. Our country's 200-year tradition of working through our differences is not new. The need for consultation is not new. The important role of the Judiciary Committee--and I have served as a member for 12 years now--in examining a nominee's qualifications, is not new. What is new is the majority party's decision that if you win an election, you should have absolute power. Earlier this week, the Senator from Pennsylvania, Mr. Santorum, stated: I guess elections do not matter. I guess who people vote for for President is of no concern to the minority in the Senate. . . If someone happens to be reported out and a majority defeats, fine, majority rules. It is this very sentiment that concerns me and many others because this logic ignores that the Democratic Senators won their elections, too, and that while President Bush did win the election, those who did not vote for him still maintain their rights to have their voices represented in Government. Our country is not an autocracy. It is a democracy, where the minority enjoys an active role, particularly in the Senate. Protecting the minority and ensuring it is not overrun by a strong majority is central to the need for an independent judiciary. In fact, this is a basic lesson taught in elementary civics in schools across the country. One teacher's notes found on the Internet as a model for civic teachers states: Purpose/Rationale/Goals of the day's lesson: Students should understand that majority rule does not take precedence over minority rights. The lesson should promote thought, understanding, and acceptance that unpopular ideas are protected under the United States Constitution. Students should also understand that it is the independent judiciary that protects these rights. So it is a basic lesson we all learn in school from a very early age. Federal judges are meant to be independent. That is one of the reasons why the nuclear option is so dangerous--because it completely quells the arguments, the views, and the votes of the minority and, therefore, eases the way for absolute power to prevail with absolutely partisan appointments. There is nothing the minority can do to stop that. I have quoted John Adams before on the specific need for an independent judiciary. He stated in a pamphlet called ``Thoughts on Government,'' which was distributed in 1776, the following: The judicial power ought to be distinct from both the legislative and the executive, and independent upon both, so that it may be a check upon both, as both should be checked upon. Today, I also want to quote from Alexander Hamilton, who, in the Federalist Papers, No. 78, published in 1788, wrote: As liberty can have nothing to fear from the judiciary alone, it has everything to fear from its union with either the [executive or legislative] departments. These statements by Adams and Hamilton clearly set forth the intent of our forefathers that the judiciary should be and must be independent. The Senate was meant to play an active role in the selection process, and the judiciary was not solely to be determined by the executive branch. As a matter of fact, I pointed out earlier on that in the early days of the Constitutional Convention, it was proposed that the Senate solely determine who would sit on the federal bench, and then that was changed to give the President a role in the nomination of judges confirmed by the President. I have also spoken about the history of judicial nominations under the Clinton administration. As I have explained in great detail, during the previous administration, Republicans used the practice of blue slips, or an anonymous hold, to allow a single Senator, not 41, to prevent a nomination from receiving a hearing, a markup, a cloture vote, or an up-or-down vote. This demonstrates that Senate rules have been used throughout our history by both parties to implement a strong Senate role and minority rights, even the right of one Senator to block a nominee. As has been illustrated by my colleagues on the other side of the aisle, both parties have bemoaned the impact of procedural delays on confirming judges. However, President Clinton's nominees were pocket filibustered by as little as one Senator in secret and, therefore, provided no information about why their nomination was being blocked, let alone an opportunity to address any concerns or criticisms about their record--no up-or-down vote, no cloture vote, no vote in the Judiciary Committee, nothing. There were 23 circuit court nominees handled this way--filibustered by as few as 1 person, 1 Senator--and 38 district court nominees were filibustered by as little as 1 Senator. In addition, unlike what some have argued, this practice was implemented throughout the Clinton administration when Republicans controlled the Senate, not just in the last years or months. The question I have posed to this body twice now--and I do it a third time--is whether the public interest is better served by 41 Senators taking an openly declared position, publicly debating an individual's past speeches, temperament, opinions, or a filibuster of 1 or 2 Senators in secret when one does not know why or who? I think the answer is pretty clear. This weekend, I read the press coverage on the nuclear option with great interest. I was heartened to realize that Democrats are not the only ones who are concerned with the idea of drowning out minority views and turning the Senate into the House. The New York Times editorialized: The Republican attack is deeply misguided. There is a centuries-old Senate tradition that a minority can use a filibuster to block legislation or nominees. The Congressional Research Service has declared that the nuclear option would require that ``one or more of the Senate's precedents be overturned or interpreted otherwise than in the past.'' The American people strongly oppose the nuclear option, according to recent polls, because they see it for what it is: rewriting the rules to trample the minority. That is the New York Times. The Associated Press reported on a new poll that asked about judges and the Senate's role. The results found that 78 percent of those polled stated that the Senate should ``take an assertive role in examining each nominee.'' And a Time poll said 59 percent of Americans believe Republicans should not be able to eliminate the filibuster. Whereas, in sharp contrast, a poll released last Thursday by NBC News/ Wall Street Journal found that only 33 percent of those surveyed approve of the job being done by the Congress. This is a monumental number. I submit that as partisanship and the polarization of this body increases, the poll numbers will continue to decrease because that is not what the American people want us to do. In addition, there were more reports of former Republican Senators who are also concerned about the impact of a nuclear option. Former Senator Clifford Hansen, a Wyoming Republican who served from 1967 to 1978, was quoted as stating: Being a Republican, we were the minority party, and I suspect there are some similarities between our situation then and those that the Democrats find themselves in today. I am sure that it would have concerned me if there were limits on the filibuster. When I was in the Senate, the Democrats were in control, and we made a lot of friends with the Democratic Party, and I realized then that if I were going to get anything done, I had to reach out and establish some real friendships with members on the other side. That is what this Democrat has tried to do over the past few years as well. The Los Angeles Times wrote: If a showdown over President Bush's nominees goes forward as planned next week, it would mark one more significant step in the Senate's transformation from a clubby bastion of bipartisanship into a free-wheeling political arena as raucous as the House of Representatives. And The Economist wrote: Amid all this uncertainty, the filibuster debate has almost certainly harmed one institution: the Senate. It was deliberately designed by the Founding Fathers to be the deliberative branch of the American Government. Senators who sit for 6 years rather than the 2 years of the populist House, have long prided themselves on their independence. The politics of partisanship has now arrived in the upper Chamber with a vengeance. The Senate has long stood as a barrier to government activism on either side. As all these accounts acknowledge, the nuclear option will turn the Senate into a body that could have its rules broken at any time--and this is significant--not by 60 votes but by a majority of Senators unhappy with any position taken by the minority. It begins with judicial nominations. Next will be executive appointments, and then it will be legislation. If this is allowed to happen, if the Republican leadership insists on forcing the nuclear option, the Senate becomes the House of Representatives, where the majority rules supreme and the party in power can dominate and control the agenda with absolute power. This country is based on a balance between majority rule and minority rights. I believe it is important to reflect on what our country is facing while this debate is moving forward. We had another sharply divided election, where the President was elected by a slight margin. The differences in American beliefs have been highlighted through heated debate over the budget, Social Security, the war in Iraq, increased tax cuts, funding for education, health care, and law enforcement. At times, the level of disagreement can seem overwhelming. Yet, with all this tension, the majority party is attempting to implement a strategy to completely silence the minority. It is no longer acceptable to have differences. The defining theme now seems to be ``my way or the highway.'' Last week, I said, when 1 party rules all 3 branches, that party rules supreme, but tomorrow, if the nuclear option proceeds, the Republican party will be saying that supreme rule is not enough; total domination is what is required. The nuclear option is the majority's strategy to completely eliminate the ability of the minority to have any voice, any influence, any input. When might makes right, someone is always trampled. Instead, I believe we should be ruled by the philosophy that right makes might. Thomas Jefferson consistently advocated for our country based on the free flow of ideas and open debate. And maybe up to this point we have taken for granted that a government of the people must be based on reason, on choice, and on open debate. But before our Nation was founded, modern governments were based on authoritarian domination. The people, in general, were considered little more than cattle to be governed and controlled by those possessing wealth, property, education, and power. The Founding Fathers introduced the revolutionary idea that government could rest on the reasoned choice of the people themselves. In a free society, with a government based on reason, it is inevitable that there will be strong disagreements about important issues. But a government of the people requires difference of opinion in order to discover truth. As I said at the beginning of this statement, I am deeply troubled that legitimate disagreements over a nominee's qualifications to be elevated to a lifetime appointment have been turned into a strategy to unravel our constitutional checks and balances. Unfortunately, while the Department of Defense authorization bill sat on the calendar for the past week, we have wasted time on a clear stalemate. There are many urgent problems the Senate needs to be focused on and Americans want us to focus on: the war in Iraq, protecting our homeland, addressing the high cost of prescription drugs, alleviating rising gas prices, ensuring our Social Security system is stable and working, and reducing the Federal deficit. I am fairly certain we will not all agree on the best means to address these issues. I very much regret what we are in today. To give you just a small example--and I think the Presiding Officer knows this--I sit on three committees. These three committees, for markups of critical bills, are meeting simultaneously. They are Intelligence, marking up the Patriot Act; Judiciary, marking up the asbestos bill; and the Energy Committee, marking up the Energy bill at the same time. This is not the way to do the people's business--constrained by time limits artificially imposed because of this present situation. I very much agree with the sentiment expressed by my colleague, Senator Specter, when he said: If [during the cold war] the United States and the Soviet Union could avoid nuclear confrontation . . . so should the United States Senate. I hope Republicans will choose to honor the tradition of our democracy and walk away from this confrontation. I know if the shoe were on the other foot, I would not advocate breaking Senate rules and precedent. Thank you, Mr. President. I yield the floor.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I thank the Senator from New York. He serves as the ranking member of the Subcommittee on Administrative Oversight and the Courts of the Judiciary Committee, and he more or less heads all of the hearings with respect to these judges. He has done an excellent job. He is thorough. As everybody knows, he is a smart and intelligent man. He has made a very eloquent statement. So I thank him. Last week I came to the floor and discussed the nuclear option. I recognize today that we are now faced with going down this path. I am concerned that once begun, it is going to be hard, if not impossible, to reverse it. I find it ironic in his statement the majority leader said: All Members are encouraged to ensure that rhetoric in this debate follows the rules and best traditions of the Senate. That is exactly what this side of the aisle is fighting for--the rules and the traditions of the Senate. We are standing up to those in the other party who want to break the rules and precedent of the Senate. So in reality, it is those of us on this side of the aisle who are asking the majority leader to follow all the rules and precedents of the Senate, not just the one he supports or any other group of Members might support. Some have argued this debate is too inside baseball or, more appropriately perhaps, too inside the beltway and that Americans don't care about it. However, I believe that is wrong. To date, I have received about 16,000 phone calls, and they are running three to one in favor of opposing the nuclear option. The reason is, people are beginning to understand this debate is built on the very foundation of why we are here, why our democracy has been successful over 200 years, and why our Constitution is looked at as a model across the world in emergent democracies. Let me try to explain, once again, why Senators take their role of advise and consent so seriously and what this nuclear option will mean, not only for the Senate and the judiciary but for our Constitution and our country. First, Federal judges' decisions impact laws that affect our everyday lives--privacy protection, intellectual property, laws of commerce, civil rights, environmental regulations, highway safety, product liability, the environment, retirement security. And those are just a few examples. Who we confirm is important because their ability to interpret basic law, based on the Constitution of the United States, is critical to our functioning. Their independence to do that is critical. Secondly, Federal judges enjoy lifetime appointments. They don't come and go with administrations, as do Cabinet Secretaries. They cannot be removed from the bench, except in extremely rare circumstances. In fact, in our Government's over 200-year history, only 11 Federal judges have been impeached and, of those, only 2 since 1936. Thirdly, Federal judges are meant to be independent. The Founding Fathers intentionally embedded language in the U.S. Constitution to provide checks and balances. Inherent in our Government is conflict and compromise, and that is the fundamental principle in the structure of our Government. The judiciary is meant to be an independent, nonpartisan third branch. I think John Adams, in 1776, made it very clear on the point of checks and balances and an independent judiciary, when he said: The dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon on upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checked upon that . . . [The judges'] minds should not be distracted with jarring interests; they should not be dependent upon any man or body of men. Now, that is the clearest statement of intent from our Founding Fathers, that the judiciary should be and must be independent. That is what is being eroded with the partisanship and with the nuclear option. The Senate was meant to play an active role in the selection process. The judiciary was not solely to be determined by the executive branch. Last week, I described how, in the Constitutional Convention, the first effort put forward was actually to have the Senate nominate and appoint judges. Then it was later on, with the consideration of others, changed to allow the President to nominate. But the explanation in the Federalist Papers is all centered around the Senate having the real power to confirm, and that power is not a rubberstamp. Because of these fundamental concerns, for centuries there have been heated and important debates surrounding judicial nominations. Today, rather than utilizing and preserving the natural tension and conflict our Constitution created, some in the Republican Party want to eviscerate and destroy that foundation. Blinded by political passion, some are willing to unravel our Government's fundamental principle of checks and balances to break the rules and discard Senate precedent. The nuclear option, if successful, will turn the Senate into a body that could have its rules broken at any time by a majority of Senators unhappy with any position taken by the minority. It begins with judicial nominations. Next will be executive appointments, and then legislation. A pocket card being passed around in support of the nuclear option states this: The majority continues to support the legislative filibuster. Yes, they do today, but what happens when they no longer support it tomorrow or the next day? If the nuclear option goes forward and they break Senate rules and throw out Senate precedent, then any time the majority decides the minority should not have the right to filibuster, the majority can simply break the rules again. Fifty-one votes are not too hard to get. Get the Vice President, have a close Senate, and you get it. That will be new precedent again in the Senate. So once done, it is very hard to undo. That is why precedent plays such a big part in everything we do because we recognize that once you change it, you open that door for all time. It can never be shut again. If this is allowed to happen--if the Republican leadership insists on enforcing the nuclear option, the Senate becomes ipso facto the House of Representatives, where the majority rules supreme and the party in power can dominate and control the agenda with absolute power. The Senate is meant to be different. In my talks, I often quote George Washington and point out how the Senate and House are often referred to as a cup of coffee and a saucer. The House is a cup of coffee. You drink your coffee out of the cup. If it is too hot, you pour it into the saucer--the Senate--and you cool it. The Senate is really formed on the basis that no legislation is better than bad legislation and that the debates and disagreements over judicial nominations ensures that the Senate confirms the best qualified candidates. So the Senate is meant to be a deliberative body, and the rights of the minority, characterized by the filibuster, are purposely designed to be strong. Others describe the Senate as a giant bicycle wheel with 100 spokes. If one Senator--one spoke--gets out of line, the wheel stops and, in fact, that is true. In our rules, any Senator can put a hold on a piece of legislation and essentially force the majority to go to a cloture vote--essentially, force a 60-vote necessity for any matter to be brought to the floor. This distinguishes us from the House. Because we know it is such a strong right, we are very reluctant and very reserved in the use of that right. This is what has produced comity in this House, the collegiality. Everybody knows if you put a hold on something too often, you are going to jeopardize things you want. So what goes around comes around and comity, such as it may be, exists. Now, when one party rules all three branches, that party rules supreme. But now one party is saying that supreme rule is not enough, that they must also completely eliminate the ability of the minority to have any voice, any influence, any input. This is not the Senate envisioned by our Founding Fathers. It is not the Senate in which I have been proud to serve for the last 12 years. And it is not the Senate in which great men and women of both parties have served with distinction for over 200 years. We often refer to the longest filibuster in history, which was conducted by Senator Strom Thurmond and lasted for more than 24 hours. That was an actual filibuster, standing on the floor and orating, or asking the clerk to read the bill, or reading the telephone directory, and doing it hour after hour after hour, sending the message that you are stopping debate, that on the great wheel of comity one spoke is sticking out and stopping it. People listen because, unlike the House, debate and discussion has been important. It has been fundamental in our being, and our ability to stand up on the floor of the Senate and discuss issues of import before the world on television, for the Congressional Record, for all of the people who watch on closed circuit television, becomes a signal, I think, on Capitol Hill. When Democrats were in the White House--I will talk for a moment on Senate procedure--Republicans used the filibuster and other procedural delays to deny judicial nominees an up-or-down vote. So denying a judicial nominee an up-or-down vote is nothing new. It has been done over and over and over again. I speak as a member of the Judiciary Committee for 12 years, and I have seen it done over and over and over again. So why suddenly is an up-or-down vote now the be all and end all? Last administration, Republicans used the practice of blue slips or an anonymous hold, which I have just described, to allow a single Senator--not 41 Senators, but 1--to prevent a nomination from receiving a vote in the Judiciary Committee, a 60-vote cloture vote on the floor, or an up-or-down vote on the floor of the Senate. This was a filibuster of one, and it can still take place within the Judiciary Committee. The fact is, more than 60 judicial nominees suffered this fate during the last administration. In other words, over 60 Clinton judges were filibustered successfully by one Senator, often anonymous, often in secret, no debate as to why. It was an effective blackball. This is not tit-for-tat policy, but it is important to recall that Senate rules have been used throughout our history by both parties to implement a strong Senate role and minority rights, even the right of one Senator to block a nomination. Republicans have argued that the nominations they blocked are different because in the end, some, such as Richard Paez and Marsha Berzon, were confirmed. This ignores that it took over 4 years to confirm both of them because of blue slips and holds. In addition, if a party attempts to filibuster a nomination and a nominee is eventually confirmed, that does not mean it is not a filibuster. Failure does not undo the effort. I pointed out earlier where, in 1881, President Hayes nominated a gentleman to the Supreme Court. That was successfully filibustered throughout President Hayes' term. When President Garfield then came into office, he renominated the individual, and the Senate then confirmed that individual. But that does not negate the filibuster. It was the first recorded act of a filibuster of a judicial nominee, and it, in fact, took place and was successful for the length of President Hayes' term. More importantly, while some of Clinton's nominations eventually broke through the Republican pocket filibuster, 61 of President Clinton's judicial nominations were not confirmed because of Republican opposition. Not only were they not confirmed, they were not given a committee vote in Judiciary. They were not given a cloture vote here or an up-or-down vote on the floor. So these are really crocodile tears. Republicans have also argued that the reason the nuclear option is needed now is because the Clinton nominees were not defeated by a cloture vote. In essence, because different procedural rules were used to defeat a nominee, it does not count. On its face, this argument is absurd. To the nominee, whatever rule was used, their confirmation failed and the result is the same: They did not get a vote, and they are not sitting on the Federal bench. As I said, 61 Clinton nominees, in the time I have sat on the Senate Judiciary Committee--so I have seen this firsthand--were pocket filibustered by as little as one Senator in secret and, therefore, provided no information about why their nomination was blocked. There was no opportunity to address any concern or criticism about their record and qualifications. Just to straighten out the record because I debated a Senator yesterday: 23 of these were circuit court nominees and 38 were district court nominees. In addition, unlike what some have argued, this practice was implemented throughout the Clinton administration when Republicans controlled the Senate, not just in the last year or final months of the tenure of the President. The reason I mention this is because there is sort of an informal practice in the Judiciary Committee--it is called the Thurmond rule-- that when a nominee is nominated in the fall of year of a Presidential election, that nominee does not generally get heard. But I am not only talking about nominees at the tail end; I am talking about nominees who were nominated in each of the 6 years of the Clinton Administration in which the Republican party controlled the Senate. The following is a list of President Clinton's judicial nominees who were blocked: ------------------------------------------------------------------------ Date nomination Nominees Court nominated to first submitted to Senate ------------------------------------------------------------------------ Circuit Court ------------------------------------------------------------------------ Charles R. Stack................. Eleventh Circuit.... 10/27/95 J. Rich Leonard.................. Fourth Circuit...... 12/22/95 James A. Beaty, Jr............... Fourth Circuit...... 12/22/95 Helene N. White.................. Sixth Circuit....... 01/07/97 Jorge C. Rangel.................. Fifth Circuit....... 07/24/97 Robert S. Raymar................. Third Circuit....... 06/05/98 Barry P. Goode................... Ninth Circuit....... 06/24/98 H. Alston Johnson, III........... Fifth Circuit....... 04/22/99 James E. Duffy, Jr............... Ninth Circuit....... 06/17/99 Elena Kagan...................... DC Circuit.......... 06/17/99 James A. Wynn, Jr................ Fourth Circuit...... 08/05/99 Kathleen McCree Lewis............ Sixth Circuit....... 09/16/99 Enrique Moreno................... Fifth Circuit....... 09/16/99 James M. Lyons................... Tenth Circuit....... 09/22/99 Allen R. Snyder.................. DC Circuit.......... 09/22/99 Robert J. Cindrich............... Third Circuit....... 02/09/00 Kent R. Markus................... Sixth Circuit....... 02/09/00 Bonnie J. Campbell............... Eighth Circuit...... 03/02/00 Stephen M. Orlofsky.............. Third Circuit....... 05/25/00 Roger L. Gregory................. Fourth Circuit...... 06/30/00 Christine M. Arguello............ Tenth Circuit....... 07/27/00 Andre M. Davis................... Fourth Circuit...... 10/06/00 S. Elizabeth Gibson.............. Fourth Circuit...... 10/26/00 ------------------------------------------------------------------------ District Court ------------------------------------------------------------------------ John D. Snodgrass................ Northern District of 09/22/94 Alabama. Wenona Y. Whitfield.............. Southern District of 03/23/95 Illinois. Leland M. Shurin................. Western District of 04/04/95 Missouri. John H. Bingler, Jr.............. Western District of 07/21/95 Pennsylvania. Bruce W. Greer................... Southern District of 08/01/95 Florida. Clarence J. Sundram.............. Northern District of 09/29/95 New York. Sue E. Myerscough................ Central District of 10/11/95 Illinois. Cheryl B. Wattley................ Northern District of 12/12/95 Texas. Michael D. Schattman............. Northern District of 12/19/95 Texas. Anabelle Rodriguez............... District of Puerto 01/26/96 Rico. Lynne R. Lasry................... Southern District of 02/12/97 California. Jeffrey D. Colman................ Northern District of 07/31/97 Illinois. Robert A. Freedberg.............. Eastern District of 04/23/98 Pennsylvania. Legrome D. Davis................. Eastern District of 07/30/98 Pennsylvania. Lynette Norton................... Western District of 04/29/98 Pennsylvania. James W. Klein................... District of Columbia 01/27/98 J. Rich Leonard.................. Eastern District of 03/24/99 North Carolina. Frank H. McCarthy................ Northern District of 04/30/99 Oklahoma. Patricia A. Coan................. District of Colorado 05/27/99 Dolly M. Gee..................... Central District of 05/27/99 California. Frederic D. Woocher.............. Central District of 05/27/99 California. Gail S. Tusan.................... Northern District of 08/03/99 Georgia. Steven D. Bell................... Northern District of 08/05/99 Ohio. Rhonda C. Fields................. District of Columbia 11/17/99 S. David Fineman................. Eastern District of 03/09/00 Pennsylvania. Linda B. Riegle.................. District of Nevada.. 04/25/00 Ricardo Morado................... Southern District of 05/11/00 Texas. K. Gary Sebelius................. District of Kansas.. 06/06/00 Kenneth O. Simon................. Northern District of 06/06/00 Alabama. John S.W. Lim.................... District of Hawaii.. 06/08/00 David S. Cercone................. Western District of 07/27/00 Pennsylvania. Harry P. Litman.................. Western District of 07/27/00 Pennsylvania. Valerie K. Couch................. Western District of 09/07/00 Oklahoma. Marian M. Johnston............... Eastern District of 09/07/00 California. Steven E. Achelpohl.............. District of Nebraska 09/12/00 Richard W. Anderson.............. District of Montana. 09/13/00 Stephen B. Lieberman............. Eastern District of 09/14/00 Pennsylvania. Melvin C. Hall................... Western District of 10/03/00 Oklahoma. ------------------------------------------------------------------------

Mrs. FEINSTEIN. Mr. President, the overwhelming question I have--and let me ask everybody here--is the public interest better served by 41 Senators stating on the floor of the Senate why they are filibustering a nominee, as Senator Schumer did, as others have done earlier, and the reasons hang out in public? Everybody can hear the reasons; they can be refuted. There are reasons given with specificity. They are based on opinions, they are based on speeches, they are based on writings, and they are discussed right on the floor in public. Or is the public interest better served by one Senator, in secret, putting a hold on a nominee or blue-slipping the nominee and preventing that nominee from ever having a hearing, from ever having a markup, from ever having a vote in the Senate, and it is all done on the QT, no discussion, no debate. It is, as I said, the epitome of blackballs that exists in the Senate. All during the Clinton years, Republicans did not argue that checks and balances had gone too far. In fact, the opposite occurred. Republicans went to the floor to defend their right to block nominations. Senator Hatch is a good friend of mine, but nonetheless here is his 1994 statement about the filibuster: It is one of the few tools that the minority has to protect itself and those the minority represents. That was on judges. That was the chairman of the Judiciary Committee. In 1996, Senator Lott, then the leader, stated: The reason for the lack of action on the backlog of Clinton nominations-- That is an admission there were backlogs of Clinton nominations-- was his steadily ringing office phones saying ``No more Clinton Federal judges.'' Also, in 1996, Senator Craig said: There is a general feeling that no more nominations should move. I think you'll see a progressive shutdown. Now there are crocodile tears and people are upset because 41 of us-- not 1--41 want to debate in public. We have voted no on cloture because we believe our views are strong enough, that our rationale is strong enough and substantive enough to face public scrutiny and warrant an extended debate in the true tradition of the Senate. We may not all agree. Our country is based on a foundation that protects the freedom to disagree, to debate, to require compromise. Neither party will always be right when it comes to the best policies for our country, and neither party will always be in power. So, as I said initially, it is important to put this political posturing in context. I believe filibusters should be far apart and few, and should be reserved for the rare instances for judicial nominations that raise significant concerns. I voted against cloture in my Senate career of 12 years on only 11 judicial nominations and voted to confirm 573. I believe judicial nominees must be treated fairly and evenhandedly. I also believe it is the duty of the Senate to raise concerns or objections when there are legitimate issues that need to be discussed. Discharging our obligation to advise and consent is not an easy task, especially when it involves making a choice to oppose a nomination. As I discussed earlier, I strongly believe the use of the blue slip and anonymous holds has been abused in previous Congresses. During the reorganization of the Senate in 2000, Senators Daschle and Leahy worked to make the process more fair and public. At that time, a blue slip was no longer allowed to be anonymous and instead became a public document. This refining forced Senators opposed to a nominee to be held accountable for their positions. They could not hide behind a cloak of secrecy. This step also wiped out many of the hurdles that had been used to defeat nominations, so many of the tools used by Republicans in the past, and referred to as a way to draw distinctions with a public cloture vote, are no longer available. Today the blue slip is still used. However, with each chairmanship, its effectiveness and its role has been modified. Each chair of the Judiciary Committee says they are going to adhere to the blue slip in a different way. That is the anomaly in this process. One person in Judiciary decides what the rules are going to be. This is what we ought to change. Recently, Senator Specter, for example, has indicated he will honor negative blue slips. It is a piece of paper that Senators from a nominee's home state send in. If you do not send them in or if you say you do not favor the nominee, that nominee does not proceed. So Senator Specter has said he will honor negative blue slips when they are applied to district court nominees and that even one negative blue slip will be considered dispositive. However, when it comes to circuit court, blue slips will be given great weight but will not be dispositive on a nomination. Given that the meaning and effect of a blue slip has changed, and I suspect will continue to change depending on which party controls the Senate and which party is in the White House, I believe the blue slip process should be eliminated altogether. In reality, its usefulness has already been lost. Instead, I have long supported the creation of a specific timeline for how judicial nominations should be considered. Three months after nominations are submitted by the President, they should be given a hearing in the Judiciary Committee. In 6 months they should be given a vote in the committee. And in 9 months, floor action should be taken on the nomination. But the filibuster should remain the basic right of this institution. I believe implementing this timeframe would go a long way toward alleviating the tension that has plagued the consideration of judicial nominees. I would like to spend a few moments, since I believe I have the time, on one nominee. It is the nominee who comes from California. Of course I represent California. This is very hard for me to do, but I believe this nominee clearly indicates the legitimacy of our position. I would like to turn to the President's choice for a seat on the most powerful appellate court in the Nation, the DC Circuit, Janice Rogers Brown. In the case of this particular nominee, out of all the nominations, Justice Brown, in my view, is the clearest cut. She has given numerous speeches over the years that express an extreme ideology, I believe an out-of-the-mainstream ideology. In those speeches she has used stark hyperbole, startlingly vitriolic language. That has been surprising, especially for a judge, let alone a State Supreme Court justice from my State. But statements alone would not be enough for me to oppose her nomination, because there are many nominees whose opinions I have strongly disagreed with and voted to confirm. Jeffrey Sutton and Thomas Griffith immediately come to mind. Rather, my concern is that these views expressed in Justice Brown's speeches also drive her legal decisionmaking. On far too many occasions she has issued legal opinions based on her personal political beliefs, rather than existing legal precedent. Let me give some instances. In a speech to the Institute for Justice on August 12, 2000, Justice Brown stated this: Today, senior citizens blithely cannibalize their grandchildren because they have a right to get as much free stuff as the political system will permit them to extract. From the context of the speech, it is clear Justice Brown is referring to Social Security and Medicare, two essential programs that protect individuals in their retirement, and two programs that today's senior citizens have been contributing to financially for decades. Unfortunately, her legal decisions reflect the same visceral hostility toward the rights of America's seniors. Let me give you an example. In Stevenson v. Superior Court, Justice Brown wrote a dissenting opinion that would have changed California law to make it more difficult for senior citizens to demonstrate age discrimination. A Republican justice, writing for the majority of the California Supreme Court, criticized Justice Brown's opinion and he stated this: The dissent's real quarrel is not with our holding in this case, [meaning the majority] but with this court's previous decision . . . and even more fundamentally with the legislature itself. . . . The dissent [of Justice Brown] refuses to accept and scarcely acknowledges these holdings. ``These holdings'' being the law of the State of California. Justice Brown's open disdain toward Government is also disturbing, especially in light of her nomination to the District of Columbia Circuit. Let me explain why this is so important. The DC Circuit is the most prestigious and powerful appellate court below the Supreme Court because of its exclusive jurisdiction over critical Federal constitutional rights and Government regulations. Given this exclusive role, the judges serving on this court play a special role in evaluating Government actions. Janice Brown's statements on the Federal Government raise serious concerns about how she would perform on the DC Circuit if given a lifetime position. Let me illustrate. At a 2000 Federalist Society event, Justice Brown stated: Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege, war in the streets, unapologetic expropriation of property, the precipitous decline of the rule of law, the rapid rise of corruption, the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible. We asked her about these statements in the Judiciary Committee. Her answer was, ``Well, I write my own speeches.'' So these are her words. These are her words, of somebody going on the DC Circuit with enormous hostility to virtually anything the Government would do, and saying the Government is responsible for the loss of civility, the triumph of deceit. Justice Brown's statements and actions demonstrate that she is an activist judge with an unfortunate tendency to replace the law as written with her own extreme personal beliefs. This is not the kind of judge who should be on the nation's second most powerful court.

Mrs. FEINSTEIN. I will yield the floor, but if an opportunity comes up, I will ask to recover it again.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to congratulate Steve Sinton of Shandon, CA, on winning the American Farmland Trust's 2005 Steward of the Land Award. This award recognizes Steve for his lifelong commitment to conservation and sound stewardship practices. He is the ninth American farmer to win this award, and I am pleased to praise his efforts and achievements today. Created in 1997 in honor of farmer and conservationist Peggy McGrath Rockefeller, the American Farmland Trust gives the Steward of the Land Award each year to a farmer or farm family in the United States who has shown outstanding leadership at the national, State, and local levels in protecting farmland and caring for the environment. This award recognizes ranchers such as Steve and helps raise awareness about the public benefits of good stewardship and the importance of conserving land for future generations. Through his work on his own land and throughout the State of California, Steve Sinton has epitomized the spirit of this award through his dedication to protecting our country's farmlands and ranchlands, understanding how critical they are to supporting our local communities, sustaining our Nation's food supply, and preserving clean water and wildlife habitat. A fourth generation California rancher, Steve and his wife Jane manage 18,000 acres of ranchland and 125 acres of vineyards where they utilize a variety of innovative practices to promote sustainability and protect the environment. He effectively works with local governments to protect ranch and farmlands, and Steve and his family have also played an important role in providing habitat for the reintroduction of the California condor on their land, including essential nesting grounds. But Steve's efforts go far beyond his own family's farm. Steve helped form the California Rangeland Trust in 1998 where he was elected to serve as the founding chairman. With his leadership, the Rangeland Trust has protected over 170,000 acres of ranchland. Steve has also served as vice-chairman of the California Cattlemen's Association Land Use Committee, where his dedication and leadership galvanized support among the ranching community for agricultural conservation and conservation practices. A look at Steve's family history makes clear why he works so hard for farmland preservation and takes these efforts so seriously. Steve's family came to San Luis Obispo County in 1874 and bought the family farm the following year, meaning that Steve's family has been ranching in the county for 130 years. Steve grew up on the family ranch and attended my alma mater, Stanford University, before heading to the University of Colorado School of Law. After five years with the California Department of Water Resources in Sacramento, CA, Steve returned to San Luis Obispo County to help manage the family's ranches and continue his private water law practice. In addition to all this, Steve also has been active in his community, working with numerous organizations, coaching sports, and serving on the Shandon School Board for fifteen years. As a U.S. Senator representing the State of California, I congratulate Steve on winning this award and thank him for his many years of service to our State. I wish to send my very best to Steve, his wife Jane, and their two children Julie and Daniel.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President. I rise today with Senator Ensign to introduce a bill to ensure that Title I funds are directed towards instructional services to teach our neediest students. Title I provides assistance to virtually every school district in the country to serve children attending schools with high concentrations of low-income students, from preschool to high school. It has been the ``anchor'' of Federal assistance to schools, since its inception in 1965. Although it has always been the intent of Congress for Title I funds to be used for instruction and instructional services, the Federal Government has never provided a clear definition of what instructional services should entail. This lack of federal guidance has become especially clear now, as States scramble to comply with the Title I accountability standards established in ``No Child Left Behind.'' While State Administrators of Title I are directed by law to meet these specific requirements, they have been given little guidance as to how to ensure that they are in compliance with the law. I believe that the Federal Government is responsible for making this process as clear to States as possible. In my view, as it relates to Title I, we have not lived up to our end of the bargain. During consideration of ``No Child Left Behind,'' I worked hard to get my bill defining appropriate Title I uses included in the Senate version of the bill. Unfortunately, during conference consideration, my bill was stripped out and in its place language directing the General Accounting Office (GAO) to report on how states use their Title I funds was inserted. In April 2003, GAO released the report that Congress directed them to submit on Title I Administrative Expenditures. What GAO found is that while districts spent a relatively small amount, no more than 13 percent, of Title I funds on administrative services, these findings were based on their own definition ``because there is no common definition on what constitutes administrative expenditures.'' Therefore, the accounting office could not precisely measure how much of schools' Title I funds were used for administration. Because Title I funds are not defined consistently throughout the states, the accounting office created their own definition by compiling aspects of state priorities to complete the report. You see, the very reason I worked to define how Title I funds should be used--to create consistency and distribution priority nationwide-- became the definitive aspect preventing GAO from effectively drawing conclusions to their report. The report highlights two concerns that I have with the absence of universal definitions in the Title I program: the lack of Federal guidance on effective uses of Title I funds. The government's inability to accurately measure whether the academic needs of low-income students are being met. My bill takes some strong steps by balancing the needs for states to retain Title I flexibility and providing them with the guidance needed to administer the program uniformly throughout the country. Current law on Title I is much too vague. It says, ``a State or local educational agency shall use funds received under this part only to supplement the amount of funds that would, in the absence of such Federal funds, be made available from non-Federal sources for the education of pupils participating in programs assisted under this part, and not to supplant such funds.'' Basically, it says that Title I funds are to be used for the ``education of pupils.'' This is too nebulous. The U.S. Department of Education has given states a guidance document that explains how Title I funds can be used. Under this guidance document, only two uses are specifically prohibited: 1. construction or acquisition of real property; and 2. payment to parents to attend a meeting or training session or to reimburse a parent for a salary lost due to attendance at a ``parental involvement'' meeting. I believe we should give the Department, states and districts a clearer guidance in law. This legislation does the following: defines Title I direct and indirect instructional services. Sets a standard for the amount of Title I funds that can be used to achieve the academic and administrative objectives of this program. Ensures that the majority of Title I funds are used to improve academic achievement by stipulating that a local educational agency may use not more than 10 percent of Title I funds received for indirect instructional services. By limiting the amount of funds that schools can spend on administrative or indirect services, school districts are restricted from shuffling the majority of Title I to pay for non-academic services, but it also gives the districts flexibility to use the remaining funds for the indirect costs administering Title I distribution. Furthermore, by defining direct and indirect services, all states can apply the same standards for how Title I funds are used nationwide. Examples of permissible Direct Services are: employing teachers and other instructional personnel, including employee benefits. Intervening and taking corrective actions to improve student achievement. Extending academic instruction beyond the normal school day and year, including summer school. Providing instructional services to pre-kindergarten children for the transition to kindergarten. Purchasing instructional resources such as books, materials, computers, and other instructional equipment. Professional development. Developing and administering curriculum, educational materials and assessments. Examples of Indirect Services limited to no more than 10 percent of Title I expenditures are: business services relating to administering the program. Purchasing or providing facilities maintenance, janitorial, gardening, or landscaping services or the payment of utility costs. Buying food. Paying for travel to and attendance at conferences or meetings, except if necessary for professional development. My reasons for introducing this bill are two-fold: First, I believe that states must use their limited federal dollars for the fundamental purpose of providing academic instruction to help students learn. Secondly, I believe that it is nearly impossible to do so without providing a clear definition of what is considered an instructional service. I am not suggesting that it is the fault of the school districts for not focusing their Title I funds on academic instruction. They are simply exercising the flexibility that Congress has given them. If Congress also intended for those funds to educate our neediest children, Federal guidance must be given to ensure that it happens. It is my view that Title I cannot do everything. Federal funding is only 8 percent of the total funding for elementary and secondary education and Title I is even a smaller percentage of total support for public schools. That is why it is imperative to better focus Title I funds on academic instruction, teaching the fundamentals and helping disadvantaged children achieve. Schools must focus their general administrative budget to pay for expenses that fall outside of the realm of direct educational services and retain the majority of Federal funds to improve academic achievement. It is time to better direct Title I funds to the true goal of education: to help students learn. This is one step towards that important goal. I urge my colleagues to support this legislation. I ask for unanimous consent that the text of the legislation directly follow this statement in the Record.