Tom Harkin

Mr. HARKIN

Mr. HARKIN. Five more minutes.

Mr. HARKIN. How much time do we have remaining?

Mr. HARKIN. Under the previous order, how much time was the Senator from New York given?

Mr. HARKIN. Mr. President, parliamentary inquiry: Since the other side is not speaking, does their time run?

Mr. HARKIN. The order was entered into and Mr. Schumer is not here.

Mr. HARKIN. Therefore, if time is running, it runs off of the other side.

Mr. HARKIN. Will the Chair inform the Senator as to the agreement entered into and what is the time agreement?

Mr. HARKIN. Mr. President, parliamentary inquiry.

Mr. HARKIN

Mr. HARKIN. A lot of the work we did is being termed irrelevant. Somehow, according to Mr. Sutton, we did not do enough. You may be wondering why I go into all of this. Mr. Sutton says we didn't have the findings, basically. When I look back on the Supreme Court decisions handed down in the last few years, I am troubled that a lot of the work we have done on civil rights over the last 30 years is in jeopardy. In particular, I see a chipping away of the Americans with Disabilities Act, the bill that symbolizes the inclusion of people in our society. Mr. Sutton has held the hammer and the chisel. That is why I am convinced Mr. Sutton does not possess all of the qualities needed to serve a life tenure on the Sixth Circuit. I am not convinced that someone with a civil rights claim could walk in the courtroom and be confident they will get a fair shake. It is not the person himself that troubles me. It is his ideology. It is where he is coming from. It is what he has said and written and advocated. He has advocated for the proposition that civil rights protections for persons with disabilities belongs in the hands of each of the 50 separate States. His arguments before the Supreme Court articulate that States can do a better job of it than Congress and that we did not find enough evidence. We found the evidence, and it is there in the record. I don't know how anyone in the real world could say: Disability discrimination in a constitutional sense is really difficult to show. That is what Jeffrey Sutton said on National Public Radio October 11, 2000. You will hear a lot of talk, probably today and leading up to the vote tomorrow, that Jeffrey Sutton was representing his clients. He said this on National Public Radio. He was not representing a client. He said: It is really difficult to show disability discrimination in a constitutional sense. The unfortunate history of unequal treatment of persons with disabilities in our country has been locked away in institutions for years: People with mental disabilities are subjected to involuntary sterilization; persons with severe hearing loss labeled, as my brother, deaf and dumb; and for way too many years, those who were blind forced to sell pencils on the street corner for a living. Mr. Sutton seems to have an extremely limited view of our authority as Congress to legislate in this important civil rights area, as well as others. From his arguments before the Supreme Court, he seems to believe each State does its job to protect the constitutional rights of persons with disabilities as the State sees fit. After what I saw, what I heard after all these many years, all the hearings and the record, I can't fathom anyone would actually reach the conclusion that the States were doing a good job protecting people with disabilities. Some States, yes, had pretty decent laws on the books covering people with disabilities. Other States did not. But I ask, as an American citizen, as a citizen of the United States, should your civil rights depend on your address? Should your civil rights depend on the State in which you happen to live? I believe the Constitution and civil rights cover us all. And what we found during all these years, all the hearings, the record, was that there was a patchwork quilt of laws around the country so if you were in a State, maybe, that didn't have very good laws and protection of people with disabilities, the only way you could ensure your civil rights was to move to another State. I don't believe that is what the Constitution intends when it covers all Americans with civil rights. Again, people will say: Mr. Sutton was just defending his clients. He was duty bound to advocate on behalf of his clients. I am a lawyer. I know the professional code of conduct. But that doesn't tell the whole story. Mr. Sutton has written articles, participated in radio talk shows and panel discussions, where he has expressed his own personal views--not his clients', his views. That kind of publicity is not required by his role as a lawyer advocating on behalf of clients. It is clear to me this lifetime appointment would be detrimental to the civil rights that protect all Americans. He zealously advocates for States rights at the expense of individual rights. Persons with disabilities, senior workers, people of color, and underprivileged children deserve better. More than 400 disability rights and civil rights groups agree. This chart depicts that. More than 400 have come out in opposition to Mr. Sutton being on the Sixth Circuit. Jeffrey Sutton did not have to talk to the Legal Times about his pursuit of federalism cases. I want to speak about not the clients he has represented but what he said outside of the courtroom. In a November 2, 1998 article, the reporter writes that Mr. Sutton told him he and his staff were ``always on the lookout for cases coming before the court that raise issues of federalism or will affect local and State government interests.'' He is quoted as saying: It doesn't get me invited to cocktail parties, but I love these issues. I believe in this federalism stuff. From the cases he has aggressively pursued, his view is that State power trumps the rights of U.S. citizens. I believe in States rights, too, to do certain things. One of the geniuses of our system is 50 different States experimenting in doing things. But when it comes to basic human rights, civil rights, we are all U.S. citizens. As I said, we should not let a State decide what our civil rights are. That is decided by the Constitution. My freedom of speech should not depend on whether I am in Iowa or California or Georgia or wherever. It is the fact that I am a U.S. citizen, here in this country. The Bill of Rights covers us all regardless of the State in which we may happen to live. On National Public Radio he said: As with age discrimination, disability discrimination in a constitutional sense is really very difficult to show. That was on National Public Radio, October 11, 2000. I guess, according to Mr. Sutton, all of the hearings we had, all of the markups, all of the public forums, all of the witnesses, all of the examples, do not mean a thing. What matters to him is his narrow view that it is up to the States to take care of this. Now, again, on that same NPR radio broadcast, Mr. Sutton said: I think it's a positive attribute of this system of divided government that when 51 different sovereigns [including the District of Columbia there], 51 different legislatures [we don't have that here in the District of Columbia] tackle a difficult social problem, they all arrive at different approaches, and the ultimate idea and really transcendent purpose of federalism is to have them compete for the best solution. He wasn't representing a client here. These are his own personal views. What happens when a State wins in these competitions? Do they get a prize? What about the people who are in the ``losing'' States? Are they out of luck? As I said before, do they have to move to another State? After listening to all of the testimony on the ADA over a several years period of time, I find it hard to believe the 50 States were competing for the best solution on disability discrimination. In 1997, Mr. Sutton served as a moderator for a panel discussion sponsored by the Federalist Society. As the moderator, Mr. Sutton criticized States for sacrificing ``federalist principles in order to obtain near-term politically favored results.'' I am not certain I know what that means, but I do know it is an opinion. He wasn't representing a client. It is his opinion. I think it is an opinion that State officials should challenge things like the ADA and civil rights laws that cover the elderly, and the Violence Against Women Act. According to Mr. Sutton, the reason they don't contest a lot of this is because they don't want to upset the respective constituency with what those constituents would probably consider bad policy. I can think of a lot of people in my State who would consider it bad policy to allow discrimination against people with disabilities. Mr. Sutton said he was ``frustrated that, in the pursuit of particular political goals, the States are not rising up together and defending their authority against the encroachments by Congress.'' Frustrated? To me, that is a personal opinion, a personal emotion. I think the majority of us experience frustration when someone is adamant about disagreeing with us. We get frustrated when someone doesn't agree with our point of view. So he is ``frustrated that States are not rising up together''-- these are his words--``and defending their authority against encroachments by Congress.'' If he is frustrated, he must think that is what they should do. Maybe he is agitated because the States and Federal civil rights laws are different than what he would want. Maybe most States don't see them as encroachments on their State authority. A lot of States are not joining in his extreme views on congressional authority to pass civil rights laws. Some States see it differently than Mr. Sutton. Fourteen State attorneys general signed on in support of Patricia Garrett in Garrett v. Alabama. Arizona, Connecticut, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Missouri, New Mexico, New York, North Dakota, Vermont, and Washington wrote saying that Congress had the authority to enact the ADA. The 14 States I just named opposed Alabama's position represented and argued by Mr. Sutton. Mr. Sutton seemed to favor a States rights philosophy in civil rights based on a personal opinion about what Congress is and what Congress does and how we do our work. Listen to this on the Violence Against Women Act, on which we had extensive findings that supported the passage of that law. He said in an article for the Federalist Society-- again not representing a client, but in his own writing: Unexamined deference to the VAWA [Violence Against Women Act] factfindings . . . would give to any congressional staffer with a laptop the ultimate Marbury power--to have the final say over what amounts to interstate commerce. . . . Evidently, we Senators and Congressmen, with all these hearings, all of the investigations, all of the public forums, all of the testimony we have, all of the examples we have compiled--it doesn't mean anything. Evidently, we don't do that. We just have staffers with laptops and they churn out civil rights legislation. Finally, in another article for the Federalist Society in 2001, Mr. Sutton stated his belief that federalism is a ``zero-sum'' situation in which either a State or Federal lawmaking prerogative ``must fall.'' He wrote: The National Government in these types of cases invariably becomes the State's loss and vice versa. Think about that. Passing the Americans with Disabilities Act becomes a State's loss. How can Mr. Sutton hold such a view, that we break down the barriers of discrimination long held in our society against people with disabilities; and he says the Federal Government wins, the State governments lose. Well, quite frankly, we all saw it differently-- Republicans and Democrats. We saw this as a win-win. Everyone wanted this. American citizens wanted it when we broke down these barriers. Statutes like the ADA set a minimum bar for the country. States can always do more, but we passed a minimum bar. To me, that is not a zero- sum game. I don't see the Federal Government winning and States losing on that. I see all of us winning when we become a more inclusive society. So, again, it is not Mr. Sutton's clients who are driving these issues. It is not just the fact that Mr. Sutton advocated for his clients, as we will hear and have heard and will continue to hear. It is what Mr. Sutton himself believes. It is how he feels. It is his views on whether or not we here in the Congress have the authority to pass civil rights legislation. According to him, no, we don't. The record, Mr. President, was replete. We didn't just pass it overnight, as I said. We had case after case after case, and I can mention a few. There was the zookeeper who would not admit a child with mental retardation to the zoo because it would upset the chimpanzees. Another child with cerebral palsey was kept out of school because the teacher said his appearance ``nauseated'' his classmates. What does all this discrimination do to those children with disabilities as they grow up? We had a woman who said: We can just go on so long constantly reaching dead ends. I am broke, degraded, angry, and have attempted suicide three times. I know hundreds. Most of us try, but which way and where can we go? Well, in Mr. Sutton's America, she cannot go to the U.S. Congress. Despite all of the evidence, Congress did not have the power to pass the Americans with Disabilities Act because of States rights. We appointed a task force, led by Justin Dart. We went all over the Nation and had 63 meetings, as I said. Justin Dart heard from over 8,000 people in 50 States. He gathered stacks and stacks of letters into evidence. Just as an example from a health administrator who is blind. He wrote: When I walked into the office of one department head, he looked at me and said, ``Ah--if I knew you were blind, I wouldn't have bothered bringing you in for an interview.'' Prior to the ADA, that was all right. A person could be denied a job because he was blind, even though he was fully qualified for it. We have to go back to July 26, 1990. Well, let's go back to July 25, 1990. On July 25, 1990, if one was a person of color, say an African American, and they saw an ad in the paper for a job for which they were qualified, and they went down to interview for this job and their prospective employer took a look at them and said, get out of here, I am not hiring black people--probably would have used a word worse than that--on July 25 of 1990, he could have walked out of that door, gone right down the street to the courthouse and filed a lawsuit for a violation of his civil rights. The same day, July 25, 1990, a person using a wheelchair sees an ad in the paper for a job for which they are qualified. They roll their wheelchair down there, go in the door, and the prospective employer looks at them and says, get out of here; I am not hiring your kind; cripples, get out of here. I do not want anybody like you around here. The person rolled their wheelchair out of there and went down to the courthouse on July 25, 1990, but guess what, the courthouse door was locked. They could not get in because they had no cause of action. On July 25, 1990, as it had been for hundreds of years before, to discriminate against a person on the basis of their disability was not a violation of their civil rights. But on July 26, 1990, after President Bush signed it into law, if a person rolled their wheelchair down there and someone said, get out of here; I am not hiring people in wheelchairs, they could roll their wheelchair down to the courthouse door and, just like African Americans, or national origin, religion, or sex, they could then get in the courthouse door. Think about that. Before that, they could not do anything. I will be honest and say some States did have certain laws on the books that might have protected people with disabilities. A lot of States did not. That is why we found this patchwork quilt. So a person's civil rights depended upon what State they lived in. We said, that is not correct. We said, that should not be so. Well, Mr. Sutton's view that the Americans with Disabilities Act is not needed would turn us back to July 25, 1990, where one could be discriminated against. I suppose Mr. Sutton might say, well, that was then; this is now. States are more enlightened now. Surely they would not do anything like that now. A couple of years ago--I think 4 years ago, if I am not mistaken-- Patricia Garrett, from Alabama, had breast cancer. Patricia Garrett is right here in this picture. She went for medical attention, had surgery, chemotherapy, and then she returned to her work as a nursing supervisor. Her boss wanted to get rid of her, not because she could not do her job but because her boss did not like having people around who were sick and had cancer. So Mrs. Garrett lost her job. She had to take a lower-paying job, but she decided to fight back. This was in 1997. Six years later, she is still fighting in the courts about whether Congress had the ability to pass a law that applied to her because Alabama did not. She had to litigate whether Congress could pass the ADA. Just as an aside, now Alabama claims she cannot sue under the Rehab Act either. The Garrett case had to do with whether or not Congress had the power to pass Title I of the ADA so it applied to all the States. Mr. Sutton argued for Alabama and against Mrs. Garrett that all 50 States had laws about disability discrimination and therefore Federal laws were not needed. Mrs. Garrett's case today shows why that argument is so wrong and why it is so harmful to individuals whose civil rights are being violated. Mrs. Garrett could not have sued her employer, the University of Alabama, using State law. The State of Alabama had no enforceable law. They had some nice policy statements but no law. That is why we had to pass the ADA. As I said earlier, and I will keep saying it, one's civil rights should not depend on their address. It is the role of Congress to enact national legislation to protect people from discrimination wherever they might live. Mrs. Garrett did not want to rely on her State for her civil rights. She said: Mr. Sutton has described the relationship between Congress and the States as a zero sum game where only one side can win. It is distressing that someone with this view could be nominated as a Federal appeals judge. In Mr. Sutton's eyes, I, and others with disabilities, seem to be pawns in a game of power between the Federal Government and the States. That was Mrs. Garrett at a press conference last month. Mrs. Garrett, and the millions of Americans with disabilities, do not want to be pawns in a power game. They want Federal civil rights laws to apply to them no matter where they live. They want Federal civil rights laws that protect them from a boss who does not like sick people or a potential boss who would not even consider them because of their disability. The 14th amendment of the Constitution gives Congress the power to provide that protection. The whole point of it is to give Congress the ability to do something when individuals are denied their rights and treated unequally as U.S. citizens. In my mind, that was the original intent of the amendment. So, again, when one listens to Mr. Sutton, what he said--and again, this is not a court case. This is Mr. Sutton outside the courtroom. He said: I think it is a positive attribute of this system of divided government that when 51 different sovereigns, 51 different legislatures tackle a difficult social problem, they all arrive at different approaches. Mr. Sutton said that on the radio, not in a courtroom with a client, but of himself he said that. So what does this mean? Does this mean Mr. Sutton thinks it is a positive outcome--let's see, what did he say? He said, a positive attribute. Does he think it is a positive attribute that Mrs. Garrett is out of luck in Alabama, but she would be in luck if she lived in another State? Is that a positive attribute? Should Mrs. Garrett have to move to another State to have her civil rights enforced because some States enforce it more than others or have laws on the books, leave her home, leave her friends, leave her family in Alabama to go somewhere else? In our Senate report, Harold Russell, the chairman of the President's Committee on the Employment of People with Disabilities, said: The 50 State Governors' Committees with whom the President's committee works report that existing State laws do not adequately cover such acts of discrimination. The 50 States Governors' Committees with whom the President's committee works report that existing State laws do not adequately cover such acts of discrimination against people with disabilities. According to Mr. Sutton, Congress should not have the power to make that determination and people with disabilities have to just hope their State is going to take care of them. Perry Tillman, a Vietnam veteran, testified before a Senate subcommittee, and he said: ``I did my job when I was called on by my country. Now it is your job and the job of everyone in Congress to make sure that when I lost the use of my legs in battle, I did not lose my ability to achieve my dreams.'' Under Mr. Sutton's theory of federalism, Mr. Tillman would still be waiting for the American with Disabilities Act to help him achieve his dreams. Mr. Sutton has a clear lack of understanding of Congress's role in civil rights laws. Should we put on the Federal bench for life a nominee who basically says staffers with laptops are deciding what the Constitution of the United States says by relying upon the 14th amendment to the Constitution? I may have my differences with Senators on one side of the aisle or the other. We have good healthy debates here. We may not view everything the same. I think that is healthy. I don't know of laws that are passed of this magnitude that cover civil rights that are not thoroughly investigated, aired, hearings, reports, findings, over a long period of time. It is not just some, as he said, ``staffer with a laptop.'' We found time and time again that there were reasons to have this law. We found discrimination against individuals persisting in critical areas of employment in the private sector as well as the public sector, as well as State government. I cannot understand why Mr. Sutton feels that after all this we should have not only the right but the responsibility to do something. Mr. Sutton has a narrow view because he believes this ought to be only in the States and not the Federal Government. That would be a dangerous precedent to set. Let's look at the Olmstead case. Mr. Sutton did not argue this case but he wrote the brief for it. Let's think what would happen in the Olmstead case if Mr. Sutton's view prevailed. In the Olmstead case, in Georgia, two women brought suit, arguing that their needless confinement in a mental institution violated the Americans with Disabilities Act. Mr. Sutton wrote the brief for that case for the State of Georgia. Under his theory, the ADA did not specifically address needless confinement of people with disabilities. Imagine that. He wrote, ``The issue of deinstitutionalization simply was not before Congress, was not raised by Congress, was not debated by Congress during the adoption of the ADA.'' That is what Mr. Sutton said in his brief. Mr. Sutton may be a bright individual but he did not do his homework on this one. One does not have to look further than the findings of the ADA to see that Congress addressed this issue precisely when we passed the ADA. Our findings specifically state: ``Discrimination against individuals with disabilities persists in such critical areas as institutionalization.'' Mr. Sutton says it was not raised by Congress. It was. We said it. Either Mr. Sutton is ignoring this or he simply did not do his homework, and whoever did his research did not do good research. We in Congress also specifically found ``individuals with disabilities continually encounter various forms of discrimination including segregation.'' Institutionalization, segregation--that is what we found. Mr. Sutton says that is not enough. Once again, Mr. Sutton was ignoring our specific findings, arguing somehow that we had not done enough to show that we meant to end the practice of needlessly locking people in institutions. Listen to this argument of Mr. Sutton. He said the discrimination ``necessarily requires uneven treatment of similarly situated individuals.'' In other words, you have to show that people without disabilities were treated better than people with disabilities. He writes, ``no class of similarly situated people were even identified.'' But the Court said no. The Court said dissimilar treatment correspondingly exists in this key respect. In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice. For Lois Curtis and Elaine Wilson, two women in this case, if Mr. Sutton's views had prevailed, they still would be locked up. Lois spent most of her life in an institution, since the age of 14. Elaine had been living in a locked ward of a psychiatric hospital for over a year. She told the district court judge in the case that when she lived in the institution she felt like she was sitting in a little box with no way out. Day after day, the same routine, same four walls. No wonder Elaine felt like she was in a little box. The ADA was designed to break apart that box. So Elaine and Lois brought suit under the ADA, arguing that their segregation was discrimination. As I mentioned, our findings in the ADA clearly stated that people with disabilities continually encounter various forms of discrimination, including segregation, and that discrimination persists in critical areas such as institutionalization. Fortunately, the Supreme Court disagreed with the State of Georgia and with Mr. Sutton. The Court talked about the two reasons, to conclude that needless segregation is discrimination. First, needless segregation perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life; second, that confinement in an institution diminishes the everyday activities of individuals. The Court was focusing on what matters and how it affects real people. I mentioned that Lois Curtis and Elaine Wilson were institutionalized for many, many years. How do they live today? Elaine now lives in a house with a caretaker and a friend. Elaine shops, chooses her own clothes, attends family events and celebrations. Lois has close friends in her group home. She visits them all, picks out her own clothes, has favorite meals, plans a menu. At a hearing in the case, Lois and Elaine spoke of the little things that have changed. They can make Kool-Aid when they want to make it. They can go outside and take walks anywhere they want to go. We all take it for granted that we are going to choose what we eat, what we drink, what clothes we are going to put on in the morning, and where we are going to go to take a walk. But those kinds of ordinary activities are not ordinary if you are in an institution and someone else dictates every aspect of your life. In Mr. Sutton's world, Elaine and Lois would still be living in the institution. You know what Mr. Sutton would say? I am sure he would say: Gee, that's just too bad, but that's the State law. That is the Georgia State law. What are Elaine and Lois supposed to do, move? They are locked up in a mental hospital. They are locked up in wards. They cannot even leave of their own volition. That is Mr. Sutton's world--tough, tough that they have to live in a State where they institutionalize people. That is why we passed the Americans with Disabilities Act, to get people out of institutions, to get them into the communities and give some dignity and value to their lives outside an institution. That is precisely why we passed the ADA. But Mr. Sutton says: Sorry, Congress did not have the authority to do that. We all know the law can be a straitjacket if that is the way you want to interpret the law or the law can give you freedom, the ability to develop and grow and expand your horizons, to have dreams and be able to live out your dreams. The law can do that or the law can shatter you. The law can put you in an institution. The law can send you to the State school for the deaf and dumb. Mr. Sutton's view is that narrow view of law that, if the State doesn't do it, you are out of luck. But as I said, after it is all over, we are all U.S. citizens, and our civil rights should not depend on where we live. That is why I have taken this time and will take some more time to talk about Mr. Sutton and why he should not be approved to sit on the Sixth Circuit Court of Appeals. Sometimes these are tough decisions. As I said, I met with Mr. Sutton. He seems like a fine individual. He would probably be a good neighbor. That is not the point. When he puts on that robe for life and he sits on that circuit court, Elaine Curtis or Lois Wilson or Pat Garrett--what are their chances if they have to appear before Mr. Sutton? Every time I read the things Mr. Sutton has said about inadequate findings, leaving it to the States, I am reminded what Justice Thurgood Marshall said in his concurring opinion in City of Cleburne: A regime of state-mandated segregation and degradation soon emerged that in its virulence and bigotry rivaled, and indeed paralleled the worst excesses of Jim Crow. Massive custodial institutions were built to warehouse the retarded for life . . . Many disabled children were categorically excluded from public schools based on the false stereotypes that all were uneducable, and on the purported need to protect nondisabled children from them. State laws deemed the retarded ``unfit for citizenship.'' Justice Marshall further pointed out: The mentally retarded have been subject to a lengthy and tragic history of segregation and discrimination that can only be called grotesque. That is what we were facing when finally the Congress of the United States stepped up and passed the Americans with Disabilities Act. People were institutionalized, segregated, taken from their families, taken from their communities, excluded from going to school. I can't tell you how many people I have met in my sojourn through all these years of fighting for disability rights--I can't tell you how many people I have met with cerebral palsy whose bodies didn't work right and maybe they couldn't control their muscles, maybe their heads hung down, maybe they drooled, maybe they couldn't communicate verbally, but inside that body was a brilliant mind with the capability to contribute to our society. They had the ability to dream and to live out those dreams. Yet they were excluded from education simply because they had cerebral palsy. If you haven't seen the movie ``My Left Foot,'' which came out almost 20 years ago now, I think you ought to see it. That was exactly the case there. The person could only use his left foot to write, but what a brilliant writer he became. And he was excluded simply because he had a disability. As I said earlier, how many blind people were confined to selling pencils? How many people using a wheelchair were discriminated against because they wouldn't make a minor modification at a workplace so that person could do the job? We take curb cuts for granted. We take ramping for granted. We take wide doors for granted. It was not too many years ago there were not any curb cuts and there were not ramps and there were not wide doors and there were not accessible bathrooms. My nephew Kelly was injured in the line of duty in the military. He became a quadriplegic. While I have seen how society had discriminated against my brother who was deaf, I guess I had not realized the discrimination in our society against someone using a wheelchair until I saw what Kelly had to go through just to get an education. They didn't have ramps. If the class was on the third floor and they didn't have an elevator--tough luck; he couldn't take the class. If it was in a building where there were steps and there was not a ramp--tough luck; he would have to go someplace else--going into a restaurant; going to a movie theater just to watch a movie, be turned away; we don't allow wheelchairs in here; out of here. Get out of here; you can't watch a movie. Later on, they would have a place up in the back to put a few wheelchairs, if they came. But you couldn't sit with your friends and your family. I saw what they had to go through. That is why we passed the Americans with Disabilities Act. Some States had better laws than others. One would have to kind of look and see which States are best for this law and that law, and move there away from their family, friends, and community. Things are a lot better. But we didn't get that way because we relied upon 50 different States in passing 50 different laws dealing with disabilities. We got there because the U.S. Congress saw its responsibility to break down the barriers of discrimination and to for once and for all say people with disabilities are every bit as much of an American as you, me, or anybody else; that there shouldn't be artificial barriers and real barriers; and that there should be accommodations made. Mr. Sutton says we didn't have enough findings. He said the ADA was not needed. Tell Pat Garrett that. Tell Lois Curtis and Elaine Wilson that the ADA wasn't needed to get them out of the institutions they were in and to give them their freedom as human beings and as American citizens to live outside of an institution. Tell them that the ADA was not needed. Tell my nephew Kelly that the Americans with Disabilities Act wasn't needed. Mr. Sutton can say all he wants and people here can argue, Well, he was just representing his clients. But as I have said and will continue to point out, it wasn't just his clients. It was what he said and what he wrote outside of the courtroom. I believe also his opinions and his views are that Congress doesn't have this power--this right--to pass civil rights legislation. In The Legal Times, as I said, on November 2, 1998, Mr. Sutton was quoted as saying, ``It doesn't get me invited to cocktail parties. But I love these issues. I believe in federalism stuff.'' He said on National Public Radio--not in a court case but on National Public Radio--``As with age discrimination, disability discrimination in a constitutional sense is really very difficult to show.'' Seventeen hearings, 5 committee markups, 63 public forums across the country, 8,000 pages of transcripts, oral and written testimony from the Attorney General of the United States, Governors, State Attorneys General, legislators--on and on--and he said it is difficult to show. As I said, it is either clear that he doesn't understand how Congress works or he understands but disdains what we do here in the area of civil rights and civil liberties. These comments and others seem to suggest Mr. Sutton was doing much more than merely advocating a response, and, in fact, reveal an extreme view of federalism that promotes State power over the rights--the civil rights--of a U.S. citizen. I know it is said, Well, Mr. Sutton has represented the other side, but we have looked and we have not found any case Mr. Sutton has taken that would be on the opposite side of States rights--not one. My friend from Utah said Mr. Sutton represented people with disabilities and sits on a board that looks out for the interests of people with disabilities. I took a look at that. Mr. Sutton, for the Record, did represent the National Coalition for Students with Disabilities in a case brought in Federal district court, alleging that the Ohio Secretary of State violated the National Voter Registration Act regarding voter registration sites for persons with disabilities. The case was filed on November 6, 2000. Mr. Sutton was nominated for the Sixth Circuit vacancy on May 9, 2001, and it appears Mr. Sutton did not become the attorney of record until April 26, 2002. It was said earlier by my friend from Ohio that Mr. Sutton represented Cheryl Fischer in her attempt to gain admission to Case Western University Medical School. Ms. Fischer, who is blind, dreamed of becoming a psychiatrist. The university wouldn't admit her to medical school because of her disability. Yes. Mr. Sutton worked on this case. But he did not represent Cheryl Fischer. As Ohio's solicitor, Mr. Sutton represented the Ohio Civil Rights Commission because it was his job. Cheryl Fischer's attorney was Thomas Andrew Downing. Again, I know others are on the floor to speak and I don't want to hold up the floor any longer. But I think it is clear that all Mr. Sutton has said, all that he has written, and views espoused by him, give us nothing other than a portrait of an individual with extreme views on States rights--a person who will be an activist judge, a person who is an ideologue. I quote from the New York Times editorial of this morning entitled ``Another Ideologue for the Courts.'' Mr. Sutton argued a landmark disability rights case in the Supreme Court. Patricia Garrett, a nurse at an Alabama state hospital, asserted that her employer fired her because she had breast cancer, violating the Americans With Disabilities Act. Mr. Sutton argued that the act did not protect state employees like Ms. Garrett. His states'-rights argument narrowly won over the court, and deprived millions of state workers of legal protection. He also invoked federalism to urge the court to strike down the Violence Against Women Act. It did so, 5 to 4, dismantling federal protection for sexual assault victims. Mr. Sutton has said that he was only doing his job, and that his concern was building a law practice, not choosing sides. But throughout his career, he has taken on major cases that advance the conservative agenda. He has left little doubt in his public statements that he supports these rulings. I ask unanimous consent that the New York Times editorial be printed in the Record.

Mr. HARKIN. Mr. President, just before we broke for the recess, I spoke here on the Senate floor for a short amount of time about the nomination of Jeffrey Sutton to be on the Sixth Circuit Court of Appeals and about the deep concerns I have about this nomination. I want to take more time today to explain my concerns that Mr. Sutton, I don't believe, will be able to put aside his own deeply felt and deeply held ideological views; that he will not be able to put aside his determination to be an activist judge and give people a fair and impartial hearing, especially when it comes to cases dealing with civil rights and, more specifically, when it comes to cases dealing with rights under the Americans with Disabilities Act. I had the opportunity to meet with Mr. Sutton for over an hour and a half in my office. We had a great conversation. I found him to be very personable. I listened to my friend from Ohio talking about how bright he was, that he is an accomplished attorney. I will grant all of that. He is a very bright, capable, and accomplished attorney. He has a great resume: Ohio State Law School, first in his class, and former Ohio Solicitor. He has argued cases before the U.S. Supreme Court, and he has won many of them. But qualifications are just one aspect of whether or not a person ought to have a life tenure--think about it: life tenure--as a Federal judge. Qualifications are certainly important, obviously. But that is only one part of the equation. The other part has to deal with this person's views. What is the historical analysis of what this person has both said and written in terms of how he would view his role as a Federal judge? So, again, I think we have a responsibility as Senators to take into account both the qualifications but also this other side of the agenda as to whether or not this person would be a Federal judge who could give a fair and impartial hearing to those who come before him. These are not occasions on which the Senate ought to just rubberstamp a nominee. This nominee was brought up on the evening before we went out for the break. No one was here. Now it is a Monday, and there are no votes today, so Senators are drifting back from their 2-week spring recess, and we are supposed to vote on Mr. Sutton tomorrow. I hope the majority leader will allow us a little bit more time to discuss this rather than asking Senators just to rubberstamp this nominee. I can tell you, after careful review of his advocacy, both inside and outside the courtroom, I am not convinced that Mr. Sutton would be able to put aside his personal agenda. I am not convinced that someone with a disability rights or civil rights claim would get a fair shake from Mr. Sutton. Especially, for me, I cannot support putting someone on a Federal bench who has worked to undermine the Americans with Disabilities Act. Again, many of my colleagues know that when I first came to the Senate in the mid-1980s, I began to work, as I had done in the House, with many disability groups around the country to finally address the glaring omission from the 1964 Civil Rights Act, that glaring omission being Americans with disabilities. So at that time I became chairman of the Disabilities Subcommittee on the then-Education, Labor, and Health Committee under the great leadership of Senator Kennedy. In fact, before I took over, it was Senator Lowell Weicker, a Republican, who had introduced the first version of the Americans with Disabilities Act, who became a great champion, and still is a great champion, for Americans with disabilities. So it was really a bipartisan effort in those days to get a civil rights bill through that closed that loophole of not having a Federal civil rights bill that covered people with disabilities. As many of my colleagues knew at that time--maybe some do today--I had a brother with whom I grew up who was deaf. I saw how he had been treated as a child, growing up, and as an adult, and how he was discriminated against simply because he had a disability. He was sent away at a young age halfway across the State of Iowa to attend the Iowa State School for the Deaf. In those days, they called it the ``School for the Deaf and the Dumb.'' As my brother once said: ``I may be deaf, but I'm not dumb.'' But that is the way people were treated. In other words, if you had a disability, you were segregated, you were taken out of your home, out of your home community, without any consideration for the family or anything, and you were sent to an institution someplace; in this case, it was a school for the deaf. While he was there, my brother was told he could be one of three things: He could be a baker, a shoe cobbler, or a printer's assistant-- and nothing else. Well, he did not want to be any of those, so they said: OK, you're going to be a baker. Again, because he had a disability, because he could not hear, it was, I guess, accepted or thought that people had to be told what to do; they could not decide for themselves. Their horizons were limited. That was the real world in which I grew up, the real world of what happened to people with disabilities--travel, accommodations, jobs, employment, everything. So we in Congress began to look at this. What was it like in this country to be a person using a wheelchair? What was it like to be a person with cerebral palsy? What was it like to be a person with blindness? What was it like to be a person who was deaf, like my brother? What was it like? What were their lives like? How did they live? And how did our Constitution cover them? Were they equal to us? Were they equal to the nondisabled community in America? Or were they somehow discriminated against because of their disability? We in Congress did not just rush through a law, like Mr. Sutton says. We did not just have a bunch of staff with laptop computers and they just sort of turned it out. We laid the groundwork--years, years, years of accumulating data, of findings, of investigation, of hearings--a legislative record fully documenting the overwhelming evidence that discrimination in this country against people with disabilities was rampant--not a little bit here, not a little bit there, but rampant. At the time of the drafting of the ADA, we took care to make sure that this important civil rights law had the findings and the constitutional basis to pass muster with the U.S. Supreme Court. Here are some of the things we did: 25 years of studies by the Congress, going clear back to 1965 with the National Commission on Architectural Barriers; in 1974, the White House Conference on Handicapped Individuals; in 1983, the U.S. Civil Rights Commission published ``Accommodating the Spectrum of Individual Abilities,'' with a comprehensive report on discrimination against people with disabilities; in 1986, the National Council on Disabilities--I knew them well; they were the first group I started to work with when I came to the Senate--15 appointees by then-President Reagan, and their report documenting pervasive discrimination and the need for an omnibus civil rights statute. I am not going to go through them all, but, again: study after study, 17 formal hearings by congressional committees and subcommittees, a markup by 5 separate committees, 63 public forums across the country, oral and written testimony by the Attorney General of the United States, Governors, State attorneys general, State legislators. We had in excess of 300 examples of discrimination by State governments in the legislative record--300 examples--and yet in the Garrett case--I will speak more about that; and I was there; I was sitting in the Supreme Court the day Mr. Sutton argued the case there-- Mr. Sutton said--and I could not believe my ears when I heard it--he said there was really no evidence that this was needed, that basically States were doing a pretty good job, that the ADA was not needed. There were over 300 examples of discrimination by State governments. It took the tireless work of Democrats and Republicans, and when it passed the Senate, it passed 91 to 6. That is pretty overwhelming support. In the House, it passed 403 to 20. Attorney General Thornburgh, Republican Attorney General, the Chamber of Commerce, President Bush, the first one, stood with us. Why did we all stand together on the Americans with Disabilities Act? It was the right thing to do. Justice demanded it. At the time he signed the ADA into law, President Bush had many good things to say about it. I ask unanimous consent to print in the Record President Bush's statement.

Mr. HARKIN. I thank the Senator for the dialog. I thank the Senator for his statement, but I thank the Senator for his great leadership in the 1980s. When I first came here in 1985 and became a member of the Labor Committee under the leadership of Mr. Kennedy, the Senator from Massachusetts, we were beginning to develop, as the Senator knows, at that time, the underlying legislation for ADA. It was the Senator from Massachusetts who provided the great leadership that brought us together--Republicans and Democrats, Republican Attorney General, Republican President, States attorneys general, Governors--all over the country, coming together saying, finally, we have to do something about this. That is why Mr. Sutton's view is so disturbing in how he approaches this matter. As the Senator from Massachusetts so correctly stated, a lot of people are saying he was representing his client. However, he was on an NPR radio interview--not representing a client there, he was representing himself--in which he said disability discrimination in a constitutional test is hard to show, difficult to show. The Senator from Massachusetts alluded to how much work we had done to show that, 25 years of study. The first study done by Congress showing discrimination against people with disabilities was in 1965, the National Commission on Architectural Behaviors. Finally, in 1989 we passed the Americans with Disabilities Act. Mr. Sutton says that is not enough. As the Senator from Massachusetts pointed out, we had 17 formal hearings by the committee of the Senator from Massachusetts and the subcommittee which I chaired. Five separate committees marked up this bill. We had 63 public forums across the country, led by Justin Dart, head of the President's national committee--8,000 pages of testimony-- as the Senator mentioned, the Attorney General of the United States, Thornburg, Governors, State attorneys general, State legislators. But especially as it pertains to the Garrett case, Mr. Sutton basically said that Congress had not made a showing, that States were not living up to their responsibility to protect people with disabilities. There were 300 examples that came into our committee regarding discrimination by State governments. Mr. Sutton says that is not enough. I wonder aloud to my friend from Massachusetts, how many do we need, 325? Is it 350? What is the magic number to show that State governments were violating constitutional rights of their citizens? With 300 examples, Mr. Sutton says that is not good enough. I thank the Senator from Massachusetts for his statement, for his lifelong advocacy and support, especially of people with disabilities. I have geared my remarks on that--and for his advocacy and support for the Americans with Disabilities Act. People say Mr. Sutton is a nice guy and all that kind of stuff. I suppose he is. I spent an hour and a half with him. I found him to be a very pleasurable individual. The Senator from Ohio said that he does not have any bias against people with disabilities. I don't contend that. I know the Senator from Massachusetts does not contend that Mr. Sutton has any personal bias against people with disabilities. However, his rigid ideology in that we in the Congress cannot pass national laws protecting the civil rights of people with disabilities sets the clock back 25 years or more. So that is the problem with Mr. Sutton. He has this rigid ideology that says people may be hurting, people may be discriminated against because they use a wheelchair or they have cerebral palsy or they are deaf or they are blind, and isn't that just too bad, our hearts go out to them, but we can't do anything about it unless the State does something about it. I find that to be the primary reason why Mr. Sutton should not be on the circuit court of appeals. If he wants to be on the State bench some place, at a State court he can espouse that, but not as a member of the circuit court of the United States. I thank the Senator from Massachusetts.

Mr. HARKIN. Mr. President, no doubt Mr. Sutton is a very bright individual. He is very capable. He has argued cases before the Supreme Court. I don't argue his qualifications--not a bit. But I do argue his views--his views which, if he is permitted to take a seat on the Sixth Circuit Court of Appeals, I believe would mean that when Mrs. Garrett or my nephew Kelly or other people with disabilities walked into that courtroom, or wheeled their chairs into that courtroom--that Mr. Sutton wouldn't see a person. He would not see the years and years of discrimination against people with disabilities. He would not see what that individual person has to put up with day after day. He would only see one thing: What is the State law? If the State law did not cover it, then we in Congress have no power to act. That, Mr. President, is an extreme view--an extreme activist view--of the role of our Federal judges, and one which this Senate should not accept. I yield the floor.

Mr. HARKIN

Mr. HARKIN. Mr. President, I listened with care to the arguments espoused now by my good friend and colleague from Ohio, Senator DeWine. I compliment him on many aspects of his statement especially when he first opened up and said that he believed the Court got it wrong in the Garrett case; Congress did have our findings, which I have pointed out time and time again this afternoon that, in fact, Congress did have years and years of testimony, markups by five separate committees, 17 formal hearings, on and on, making the case for the Americans with Disabilities Act. As I understood what my colleague from Ohio said, he believed the Court got it wrong. I commend him for his statement on that; obviously, I concur in that opinion. My good friend from Ohio goes on to say that basically Mr. Sutton, in arguing against Mrs. Garrett and in arguing for the State of Alabama in this case, was simply representing his client and following the canons of legal ethics in making sure he fought as vigorously as possible on behalf of his client. I understand that and I can accept that is what Mr. Sutton was doing in this particular case. However, the canons of legal ethics also make it clear that in representing your client to the best of your ability and to vigorously defend your client that you also have to adhere to the codes of ethics and legal ethics and one of those is to be truthful and to do due diligence in terms of understanding the parameters of mistakes. People do make mistakes; I understand that, but I do believe Mr. Sutton in what he said in his oral argument before the Court when he said the ADA was not needed. I think that goes a little bit far. Earlier I said he either did not know what Congress had done or he did know and treated it with disdain. If that were the only thing, if Mr. Sutton's representation in the Garrett case were the only thing, I would say those who oppose him would, indeed, have a weak reed on which to stand. But that is not the point. It is not just Garrett. It is the things Mr. Sutton has said outside of his representation of a legal client. Before I get to that I will, again, reiterate for the sake of emphasis what the Senator from Massachusetts, Mr. Kennedy, said earlier, that in all of his representations he has never taken a case on the other side that is against States rights. Never; not one. So he picks out and looks at those cases where he can be on the side of States rights versus ability or the authority of Congress to legislate on a national basis. Beyond that, it is what Mr. Sutton has said outside of the courtroom. First, I have pointed out before the Legal Times article in 1998 in which Mr. Sutton told a reporter he and his staff were always on the lookout for cases that would be coming before the Court that raise issues of federalism. He is always looking out for those cases. And what cases does he take? Only those in which he can argue on behalf of States rights versus Federal authority. He says: It does not get me invited to cocktail parties, but I love these issues. I believe in this federalism stuff. Again, that in and of itself might be kind of harmless. But then on National Public Radio in 2000 he said, ``As with age discrimination, disability discrimination in the Constitution is really very difficult to show.'' Here is the evidence: 17 hearings, markup by five committees, 63 public forums across the country, thousands of pages of documents, oral and written testimony by the Attorney General of the United States, Governors, State attorneys general, State legislators, or 300 examples of discrimination by State governments, all on the legislative record. Yet he said it is really difficult to show. He did not say this on behalf of a client; he said this in a radio interview. So we have to add all of these and look at the whole picture that emerges of Mr. Sutton. Then in an article for the Federalist Society of 2000 Mr. Sutton says: Unexamined deference to the Violence Against Women Act fact findings would give to any congressional staffer with a laptop the ultimate Marbury power to have the final say over what amounts to interstate commerce. Take that with the statement about how difficult it is to show in a constitutional sense, discrimination against disability, then his comments about how he believes and loves this federalism stuff, and the fact that he only takes cases on that side of the ledger. It adds up to one thing: That Mr. Sutton, in wanting to be a Federal judge, believes that when it comes to civil rights legislation, States rights trumps what we do here. When it comes to our ability to address underlying civil rights issues, States rights trumps the Federal Government. The fact he would even think that somehow Congress, in passing a law such as the ADA or the Violence Against Women Act, or any of these other civil rights bills, that somehow we have a staffer just sit down and type it out on a laptop and we bring it out here and pass it, again, that either illustrates that Mr. Sutton has a terribly uninformed view as to how we operate or he just has a disdain for what we do here. As I said, I may disagree with some of my colleagues on the other side of the aisle on this issue or that issue, or how we approach this, but I do believe, whether it is under Republican control or Democratic control, Senators and Congressmen work very hard. We take an oath of office to uphold and defend the Constitution. We do not come out here willy-nilly and let ``staffers with laptops'' draft up a bill and just sort of vote it through. That is not what we do. According to Mr. Sutton, he says we do that. Well, we do not do that. We have hearings. We have findings. We work things out. We took a long time in the case of the Americans with Disabilities Act--many, many years--to get it right, to make sure that we pass constitutional muster. So it is not just Mr. Sutton's representation of his client in any particular case. It is the cases he takes, the writings he has made, the statements he has made outside the courtroom that indicate he would be an ideology-driven, activist judge on the circuit court. If Mr. Sutton is so balanced, why didn't he ever take a case that took the opposite side on States rights? Not one. Not one. My friend from Utah earlier pointed out he has represented people with disabilities and he sits on a board that looks out for the interests of people with disabilities. Let's take a look at that. Jeffrey Sutton did, indeed, represent the National Coalition of Students with Disabilities. According to my staff's research, the case was filed on November 6, 2000. Mr. Sutton was nominated for this court on May 9, 2001, almost 6 months later, and then Mr. Sutton did not become attorney of record on this case until April 26, 2002. That is quite a bit later. I find that very curious. In all the cases Mr. Sutton has taken, the one case they point to where he represented some people with disabilities he took after he was nominated for the vacancy on the Sixth Circuit Court of Appeals. We have heard here time and time again that Mr. Sutton represented Cheryl Fischer in her attempt to be admitted to Case Western Medical School. Again, Mr. Sutton did work on the case, but he did not represent Cheryl Fischer. He was the Ohio Solicitor. He represented the Ohio Civil Rights Commission that supported Cheryl Fischer because that was his job. Again, he represented his client, which was the Ohio Civil Rights Commission. Cheryl Fischer's attorney was Thomas Andrew Downing. Again, I commend Mr. Sutton's work on that case. But I guess it troubles me that Mr. Sutton's hearing testimony indicates his view that his work on that single case, a case in which he acted in his official capacity, balances out the significant impact that his arguments had on all these other cases, Garrett included. Last, someone said Mr. Sutton sits on the board of the Equal Justice Foundation. Mr. Sutton came on that board a year before he was nominated. My question is, Has Mr. Sutton ever been the lawyer for any of the cases my colleagues mentioned that the foundation took? The foundation took cases. Was Mr. Sutton ever a lawyer for any of the cases my colleagues mentioned? My friend from Utah named a few individuals who ``work in the disability community'' who support Mr. Sutton. I understand that. There are a few individuals who claim to be active in the disability community, and they support Mr. Sutton's nomination. But here is a list of 400 civil rights organizations, including every major disability organization, that have come together opposed to Mr. Sutton's nomination. As I look through this list, as I look especially at those who deal with disability issues, because that is my area of interest, I see sometimes they might have been opposed to this judge and then a different part of the group might have been opposed to that judge, but this is the first time that I know of that all of them came together on one judge: Mr. Sutton. All of them came together in opposing him. My friend from Utah mentioned a person in particular, Francis Beytagh, mentioned by the Senator as the Director of the National Center of Law and the Handicapped. I have been dealing in disability issues now going on 25 years. I said I don't know about this group. Let's find out about it. There is nothing in Mr. Beytagh's current and very detailed resume posted on the Web page of the Florida Coastal School of Law that mentions any work of his in the disability community--not even one mention. But I did find out that the National Center of Law and the Handicapped was founded in the early 1970s, in South Bend, IN, and has not existed for 15 years at least, according to Harvey Bender, one of its founders. I don't know. My friend from Utah said he was the legal director for the National Center of Law and the Handicapped. We can't even find that that exists anymore, but evidently, in the 1970s, it was someplace at Notre Dame. I understand from Mr. Beytagh's letter of support he worked extensively with Mr. Sutton when Mr. Beytagh was Dean of the Ohio Law School, and I also notice Mr. Beytagh also worked for Jones Day law firm, which is on his resume, which of course is the law firm for which Mr. Sutton works. That is all great. But the statement that Mr. Beytagh represents a viewpoint of the disability community is totally inaccurate--totally inaccurate. I just wanted to make those points to clear up some misconceptions that may have come out here on the floor earlier today, and hopefully I will have some more to say about this tomorrow. Again, I want to make it very clear that it is not just Mr. Sutton's statements in the Garrett case. My friend from Ohio, Senator DeWine, is absolutely right. He is representing his client. That is not the point. However, he did say one thing in that case that bothers me. That was, basically, that ADA was not needed. OK, maybe you might excuse that and say that is just pushing the envelope on being a vigorous proponent of his client's views. But then take that in the contextual framework of everything else--Mr. Sutton always taking cases that are just on one side of the States rights issue, just one side; the fact that on numerous occasions outside the courtroom, in speaking and in writing, Mr. Sutton has shown either a total misunderstanding of how we operate here or a clear disdain for the ability of Congress to respond nationally in the area of civil rights. Take this all together and, again, it points to a person who has an ideology, as the New York Times editorial said this morning: It is another ideologue for the court, someone who is driven by an ideology. I don't mind someone having an ideology. All of us have different beliefs. But to be driven by an ideology and to carry that on the court indicates to me that Mr. Sutton would be an ideologically driven activist judge who would do all that he could to find on behalf of States rights as opposed to Federal rights. There may be times when States rights should trump Federal rights-- obviously. Sometimes Federal rights ought to trump States rights. That is the give and take of our system. But according to Mr. Sutton's views, his writings, his statements, the cases he has taken, his view is that States rights should always trump what we do here at the Federal level. That is why I believe Mr. Sutton should not be on the circuit court. Maybe he should be on a State court someplace but not on the Federal bench. I yield the floor. I suggest the absence of a quorum.

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

Mr. HARKIN

Mr. HARKIN. I ask unanimous consent for fellow Julianne Carter to have the privilege of the floor for the duration of this debate and when we come back for debate on Jeffrey Sutton.

Mr. HARKIN

Mr. HARKIN. Mr. President, our nation is at an economic crossroads. This budget resolution conference report is an important document, setting out a course of policy for the coming decade. I oppose this resolution. I believe it takes us dangerously in the wrong direction as a country. We face a demographic shift as the baby boomers retire. We need to provide for the costs of Social Security and Medicare in the coming decades. I believe the elderly deserve a decent prescription drug benefit. We must provide a quality education for our children in an ever more competitive world where a large part of our advantage is the skills of our workforce. Prior to the 2001 tax bill, we were on a path to eliminate publicly held debt and to meet those needs. Now, the President is again proposing tax cuts of a similar size despite the fact that the surpluses predicted in 2001 have totally disappeared. Those projected surpluses have been replaced by record deficits. We may have historic deficits near $400 billion this year and next. The ranking member of the Budget Committee explained earlier today on the floor that the largest single factor in turning surpluses to deficits has been that 2001 tax cut. That tax cut, which I opposed, is more responsible for deficits in the long term than the downturn of the economy, and more responsible than the new spending on defense and homeland security that was made necessary by the attacks of 9-11. The President's new proposed tax cuts are largely provided for in this budget resolution--over $1 trillion worth. If made permanent, their cost to the Treasury will be larger than the entire projected shortfall in both Social Security and Medicare over the coming 75 years. The proposal before the Senate is radical. So-called supply-side economics, manifested in the 1981 tax cut, brought us huge deficits in the 1980s. Unemployment skyrocketed from 7.4 percent to 10.8 percent in just 15 months. Supply-siders tried again in 2001, and we have lost 2 million jobs. Now we are being asked to bet the farm for the third try. The economists who are so sure that this third bet will work are the same ones who predicted economic destruction when we passed measures to balance the budget in 1993, which led to strong economic growth. The budget resolution will produce $1.7 trillion in new Federal Government debt. That debt will compete with the private sector for funds, driving up interest rates. And it puts a break on economic growth, especially harming the housing, auto and agriculture sectors. The Congressional Budget Office has concluded that the President's plan--which is very similar to this resolution--would actually reduce economic growth by almost 1 percent. The CBO, now under a just-departed member of the President's Council of Economic Advisors, did an analysis of the budget proposal under so called dynamic scoring. The supplysiders say that economic analysis will show how much good the budget will do. What did it show? More debt. I believe that a short term economic growth package could be very helpful. We could make temporary tax relief available to working families immediately and provide financial assistance to states facing fiscal crisis. That would be stimulative. But the budget resolution proposes that only 5 percent of the tax cuts will be available this year. The proposal assumes that a huge share of the tax cuts will go to the very wealthy, those making $300,000, $500,000, and far more than a million dollars a year. There is nothing stimulative about such a proposal. We need a budget that is balanced, that takes the approach that we need to reduce the debt to take care of the baby boomers and provide for a decent drug benefit for the elderly. Clearly, the $400 billion proposed for prescription drugs and other medical reforms is far too low for that purpose. The total drug cost of the elderly in the coming 10 years is estimated to be $1.8 trillion. While we should not cover all of that cost, far less than a quarter is not enough. We need a budget that provides for more for the education of our children. This budget calls for education spending that is $4 billion less than the Senate measure for the coming year and $20 billion below that level over the coming 10 years. No Child Left Behind is not adequately funded. IDEA, a program Congress promised to provide 40 percent of the funds for decades ago is still grossly underfunded, meaning higher property taxes in almost every school district in the country.

Mr. HARKIN

Mr. HARKIN. Mr. President, we are wrapping up prior to going on a 2- week break from the Congress. We have the supplemental appropriations bill yet to do, so we are wrapping up this evening, late on Friday night. Congress will be gone for 2 weeks. Something happens when we come back. Something very important and something very meaningful happens when we come back. I will talk about that for a few moments. Mr. President, what is going to happen when we come back, there will be at some point soon after we get back from our break, a vote up or down on the Senate floor on whether or not the Senate will advise and consent to approving President Bush's nominee, Mr. Jeffrey Sutton, to be a judge on the Sixth Circuit Court of Appeals. I will speak for a while tonight about Jeffrey Sutton, but when we come back I will have a lot more to say. I don't think too many people have focused on this. There has been a lot of talk about Mr. Estrada and now there is talk about Judge Owen from Texas but not too much has been said about Mr. Sutton. I will lay out the case and lay out for my fellow Senators and for the public at large what is at stake in this nomination. First, for the record, Mr. Sutton is a 42-year-old lawyer, currently a partner at Jones, Day, Reavis and Pogue in the Columbus, OH, office. He is an adjunct professor of law at Ohio State University College of Law. He served as State Solicitor of Ohio from 1995 to 1998. He is a former law clerk to Justice Powell and Justice Scalia and Justice Thomas Meskill of the Second Circuit Court of Appeals. He has been nominated by President Bush to be a member of the Sixth Circuit Court of Appeals. At the outset, Jeffrey Sutton has a great resume. He hails from Ohio State Law School, is a former solicitor for the State of Ohio, and he has argued cases before the U.S. Supreme Court. Quite frankly, he has won many of them. So he has a great resume. Quite frankly, my arguments will not be about whether he is qualified. That is not the point. I will state at the outset in terms of legal qualifications and background that Mr. Sutton is qualified to sit on a bench. However, I don't believe that is all we have to look at. I had the opportunity to meet with Mr. Sutton for about an hour and a half in my office. He was kind enough to come to my office. We sat there and discussed an issue of great importance to me and to him. We had a great conversation. I found him to be personable. I found him to be highly intelligent, very bright. He is definitely an accomplished attorney. Frankly, I enjoyed my conversation with him for an hour and a half. However, I take very seriously our responsibility to advise and consent on lifetime judicial nominees. These are not positions to rubberstamp or just to lightly say that simply because someone is qualified they should be on the court. I have done a careful review of Mr. Sutton's advocacy inside and outside the courtroom. What I come to, I am not convinced Jeffrey Sutton would be able to put aside his own personal agenda and be a fair and balanced judge. Especially for me, I cannot support putting someone on a Federal circuit court who has worked, worked assiduously, worked intelligently, to undermine the Americans with Disabilities Act. As many here know, my brother, Frank, now deceased, was deaf. Through his eyes and through his life, my family and I saw firsthand what discrimination against persons with disabilities looks like. It was not something abstract. It was real. It was personal. It was up close. I often said if I could ever be in a position to do something about the kind of discrimination that my brother and so many others had faced, I would do it. Through the generosity of the voters of Iowa, I was in that position. In both the House and later in the Senate, I spent my time working to develop legislation to bring out of the shadows of discrimination, of institutionalization, people with disabilities, bring them out of the shadows and bring into the sunshine of civil rights laws in this country. The day before the Americans with Disabilities Act was signed by the first President Bush, the day before it was signed, if you were a person of color in this country, say, you were an African American, and you went down the street and answered an ad for a job for which you were qualified, and you walked in there and your prospective employer looked at you and said, I'm not hiring Black people, get out of here. You could have walked out that door, walked down the street, and walked right into the courthouse because we passed a Civil Rights Act in 1964 that outlaws, bans that kind of discrimination, based upon race. If, however, on that same day a person in a wheelchair, qualified for that job, had rolled that wheelchair down there and the prospective employer looked at you and said, Get out of here; I don't hire cripples, and you rolled that wheelchair down to the courthouse door, the doors were locked. They were open if you were a person of color and you had been discriminated against. But, if you were a person with a disability, the courthouse door was locked because there was no law that banned discrimination based upon disability. The next day President Bush signed it into law and you, Mr. President, or anybody else who might have a disability, took their place alongside those who had been brought into our civil rights laws in America. We did not pass that bill overnight. We didn't just all of a sudden decide we were going to pass a civil rights bill for people with disabilities, and pass it. We spent years. I am going to have more to say about this when we come back after the break, but we spent years on this, holding hearings and hearings, in forums all over the United States; a Presidential task force appointed by a Republican President, having hearings all over the United States. There were years of drafting, debating, trying to hone it down to make sure we had it right. With bipartisan support it passed overwhelmingly in the Senate. It passed overwhelmingly in the House of Representatives with bipartisan support. I will never forget that grand day when President Bush signed that into law on the White House lawn. At that time it was the biggest gathering ever in White House history for the signing of legislation. Justin Dart was there. Justin Dart was right there on the platform. Justin Dart, the hero of the disability rights movement in America, now also sadly deceased. Justin Dart sitting up there, and President Bush talking about Justin Dart leading this great movement to bring people with disabilities under our civil rights laws. Here is what President Bush said that morning: The Civil Rights Act of '64 took a bold step towards righting that wrong--the wrong of discrimination against people of color--but the stark fact remained that people with disabilities were still victim of segregation and discrimination, and this was intolerable. Today's legislation brings us closer to that day when no Americans will ever again be deprived of their basic guarantee of life, liberty, and the pursuit of happiness. Justin Dart was there that day. Before he died, Justin Dart wrote this letter: I feel certain that the great majority of 54 million Americans with disabilities, and millions more of their family members, join me in urging President Bush to reconsider his nomination of Jeffrey Sutton as a Federal judge. I won't read the whole letter. I ask unanimous consent Justin Dart's letter be printed in the Record.

Mr. HARKIN. We in Congress met, these many years, overwhelming evidence that discrimination in this country against people with disabilities was rampant, unchecked, building up year after year. It was not just in the private sector but in the public sector. State governments and the Federal Government discriminated against people with disabilities. It was pervasive in our society. We took care, when we passed that bill, to make sure we had the findings and the constitutional basis to pass muster in the United States Supreme Court. The signing sealed the work of a monumental bipartisan effort that sought to right decades of wrong. It took the tireless work of Democrats and Republicans alike. As I said, it passed the Senate 91 to 6. The House passed it 402 to 20. Then-Attorney General Thornburgh was a strong supporter. The Chamber of Commerce was on our side, the business community, the States, President Bush, all stood together. Why did we all stand together on the ADA? Because it was the right thing to do. Justice demanded it. July 26, 1990--President Bush said a lot of good things that day as he signed this bill. As I said, I will never forget it. I was proud of this because it represented the hard work of a lot of people and it broke down these old barriers of exclusion and intolerance and injustice toward people with disabilities. Now after all the work we did, all the findings, all the hearings, all the documentation we compiled, all that President Bush said, Mr. Sutton-- guess what he said. He said it wasn't needed. He said the ADA was not needed. Why did he say it was not needed? Why, because the States were doing the job. This was a State responsibility and Congress did not have the findings that States had been discriminating. As I told Jeffrey Sutton when he sat in my office that day, I said, ``How could you say that?'' I said, ``Did you read all the documentation? Did you read all the findings that we had? Twenty-five years of studies going clear back to 1965 and beyond; 1974. There were 17 formal hearings by congressional committees, markup by 5 separate committees. There were 63 public forums across the country by congressionally established task forces. There was oral and written testimony by the Attorney General of the United States, Governors, States' attorneys general and State legislators. There were over 300 examples of discrimination by State governments in that record. Yet before the Supreme Court of the United States, Mr. Sutton said it wasn't needed. That is Garrett v. Alabama. I'll have more to say about Pat Garrett, too. But he said it just wasn't needed. Regarding the Americans With Disabilities Act, I see them chipping away at a law that symbolizes the inclusion of all Americans in our society. For the past few years, Jeffrey Sutton has held the hammer and the chisel. In my mind it is not about whether he is qualified to be a Federal judge, or whether he is a nice guy. As I said, I happen to have enjoyed my conversation with him. Frankly, I know who the six Senators were who voted against the ADA in the Senate. I hope to enjoy my conversations with them, too. I just disagreed with them and so did 91 other Senators disagree with them. But that doesn't mean the six who voted against it are bad people. I, frankly, enjoy the friendship of those six people. That is not the point. The point is whether or not someone should be on the circuit court who holds that same kind of opinion. His qualifications--to me, a judge's qualifications are half of the equation. In other words, I think they have to meet the test of are they qualified. I think the other half of our responsibility is to determine whether or not that person can be a fair and balanced judge who understands the role of Congress in correcting ancient wrongs and helping to make our society more fair and more just. Frankly, in his writings and in his statements, and even in my conversation with him in my office, Mr. Sutton seems to have a unique view of our role here that somehow when it comes to civil rights laws, especially the Americans with Disabilities Act, that we have a very narrow area in which we can operate; the rest must be left to the States. As I said, you read his writings. I was in the Supreme Court. I sat there in the front row the day he argued the Garrett case, sat right next to Bob Dole. And when I heard him stand up and say the ADA was not needed, I said: Wait a minute. When I heard him talk about how we had not really established the record, that we had not really had the findings of State discrimination, I said: How could he possibly say that? Only someone who did not know what we did could ever say that. And that is what I talked to him about in my office. How could he say such a thing, when we had all this? Well, he said, yes, OK, he appreciated that, but I never got to the bottom of it with him. Anyway, his arguments before the Supreme Court articulated that States can do a better job of it than we can, and Congress did not find enough evidence. We found the evidence. It is there. It is in the record. It is compiled. Mr. Sutton has said a lot of times: Well, I was only representing my client, and I am duty bound as a lawyer to do the best I can for my client. And he was representing the State of Alabama. Well, OK, I can accept that. But here is what Mr. Sutton said on National Public Radio on October 11, 2000. Now, a lawyer's responsibility to fully represent his or her client does not spill over into talking on National Public Radio. That is his personal opinion. And here is what he said: Disability discrimination, in a constitutional sense, is really difficult to show. That is what Mr. Sutton said on National Public Radio. I am going to talk more about this when we come back after the break, about the extensive record that we found of constitutionally based discrimination against people with disabilities--discrimination that was pervasive in our society, the institutionalization of people, the blatant discrimination in jobs, in transportation, in public places against people with disabilities. And yet he said it is difficult to show. Well, we showed it. But evidently that was not enough for Mr. Sutton because he has his own narrow view, his own personal view of what the limits of Congress are in addressing these wrongs. People with disabilities, as I said, locked away in institutions for years; people with mental disabilities subjected to involuntary sterilization because, in the words of the late Justice Holmes: ``Three generations of imbeciles are enough.'' Persons with severe hearing loss, like my brother Frank, labeled deaf and dumb. They sent my brother away to a school, segregated him away from his friends, from his family, from his community, to go to the Iowa State School, as they said in those days, for the deaf and dumb. What does that do to people, simply because they are deaf, being called dumb? For too many years, those who were blind were forced to sell pencils on a street corner to earn a living. When the day is done, and we all go home, Jeffrey Sutton--no matter how likable he is, no matter how good his qualifications are--has an extreme, limited view of our congressional role to legislate in this important area. From his arguments before the Supreme Court, he seems to believe that each State does its job to protect the constitutional rights of persons with disabilities as the State sees fit. After what I saw and heard with my own ears, and during the crafting of the ADA over all those years and all those hearings, I cannot fathom anyone reaching that conclusion. Pat Garrett--I will have more to say about the Garrett case--Pat Garrett, from Alabama, working in a job for the State, came down with breast cancer. She had to go have an operation. She had chemotherapy. She recovered. She went back to work. She was told by one of her fellow coworkers that her boss didn't like sick people. Her boss fired her. So she brought a case under the Americans with Disabilities Act. She won. She won her case in the lower court. Then the State of Alabama hired Jeffrey Sutton to argue its case before the Supreme Court, and the Supreme Court found for Alabama by a 5-to-4 decision. It seems to me that according to Jeffrey Sutton, that if Pat Garrett does not like the fact that the State of Alabama did not have a law that protected her rights as a disabled person, why, she can move to Nevada, maybe move to Minnesota, maybe move to Iowa. That is her right, that she can just move out of the State, maybe find some other place to live, where a State does have laws against discrimination against people with disabilities in their State institutions. But is that what we have become in our country, a patchwork quilt? That is what we found in all these hearings on the ADA, a patchwork. Yes, some States were good; some States had none--a patchwork quilt. I do not believe that your civil rights ought to depend on your address. Your civil rights, under the Constitution of the United States, ought to depend on whether you are in this country and you are a citizen of the United States, not whether you live in Minnesota, Iowa, Nevada, or Alabama. States rights--I don't know which seat the occupant of the chair from Minnesota holds, but it was that great Senator from Minnesota who, back in 1948, took on his own party--my party--the Democratic Party, in that great speech he gave at the convention and said: It is time to come out of the shadow of States rights and into the sunshine of civil rights. And that is when the Dixiecrat, Senator Strom Thurmond, left the party, because of what Hubert Humphrey said. But Hubert Humphrey was right, it was time to come out of that shadow of States rights and recognize that civil rights inures to all of us as citizens of the United States and not just because I happen to live in one State or another. But Jeffrey Sutton does not believe that; down deep inside he does not. And I say that only because of what he has said and what he has written, not just because of his representation of a client, but what he has said outside the courtroom. All the lawyer code and duty talk does not tell the whole story. He has written articles, participated in radio talk shows, panel discussions, expressing his personal views, not his clients', but his own personal views. That kind of publicity is not required by his role as a lawyer advocating on behalf of his clients. So based on his advocacy, based upon his own words, I am not convinced that a person with a disability, walking into Jeffrey Sutton's courtroom, can expect a fair shake from Mr. Sutton. Again, as I said, I find him a likable individual, obviously very intelligent. But he means to undo with his position all we have done here to make sure that people with disabilities have their civil rights. There are over 400 disability rights and civil rights groups in the United States opposing this nomination to the Sixth Circuit. I am hard pressed to know of any disability group that supports Mr. Sutton. Again, this is nothing personal. People with disabilities understand how tenuous their hold on their civil rights is today. The Supreme Court has chipped away a little bit here, a little bit there on the Americans with Disabilities Act. There are still those in our country who believe we should not have had that law. Mr. Sutton, obviously, is one of those. He says it wasn't needed. People with disabilities live every day wondering whether or not they will be treated fairly based not upon their disability but on their abilities: Will I be able to get a good education? Will I be able to be treated fairly and equitably in terms of employment? Will I be able to find some reasonable accommodation so I can do a job? Will I go into a place of business and be ignored because I look different, maybe I act differently? That is what people with disabilities live with every day. They know their hold on this is tenuous. I can understand very deeply the concern that people with disabilities all over America have about this individual, the deep concern they have, because they see in Mr. Sutton the personification of all of the people in their lives who made life harder for them, people who had a view that was narrow, who said that somehow our National Government cannot do anything to secure their civil rights, they only have to look to the State. I will have more to say about Mr. Sutton. I will close with this. On that National Public Radio broadcast I talked about, he also said: I think it is a positive attribute of this system of divided government that when 51 different sovereigns, 51 different legislatures tackle a difficult social problem, they all arrive at different approaches. And the ultimate idea and really transcendent purpose of federalism is to have them compete for the best solution. That is his personal view. He was not representing anyone. This is Jeffrey Sutton talking: I think it is a positive attribute of this system of divided government that when 51 different sovereigns, 51 different legislatures tackle a difficult social problem, they all arrive at different approaches. And the ultimate idea and really transcendent purpose of federalism is to have it compete for the best solution. What happens when a State wins in these competitions? Do they get a prize? What happens to the people who are in the losing States? Are they just unlucky? What about Pat Garrett? Obviously, Alabama was not competing to have the best antidisability discrimination laws in the country. I would be the first to say that one of the great things about our system of government is, it does allow for experimentation in different States. It allows different States to approach problems differently. Out of that we do get not a top-down, one-size-fits-all type of government. That is one of the beauties of our system. But when it comes to fundamental issues of fairness and justice and equity, when it comes to the basic, fundamental issues of civil rights, I say again, your civil rights as an American citizen should not depend on your address. It should not depend upon the shadow of States rights. It should depend upon the sunshine of being a U.S. citizen and having the Federal Government make sure that our civil rights are protected no matter where we are. Again, if we want to have competition among States on education and transportation and all kinds of different things, that is fine. But on fundamental, basic civil rights, one law, one Constitution, one Bill of Rights that covers us all. Mr. Sutton is going to be before us. He is not now, but I understand he will be as soon as we come back. I wanted to start the debate. Quite frankly, I don't think Mr. Sutton has received the kind of attention and the kind of discourse and debate in this body that a circuit judge of his stature deserves, at least one who has this background and one who by his statements invites this kind of controversy. We have approved circuit court judges around here almost on voice vote, 98 to nothing, 96 to nothing. I have joined in that. The people were not only qualified, but they didn't raise these kinds of troubling questions about how they will deal with fundamental civil rights laws. But Jeffrey Sutton does. He raises those issues. He has done it on his own. I will have more to say about his statements when we come back. I am hopeful--not in a vindictive sense or anything like that--that this Senate will disapprove of putting Mr. Sutton on the court, thereby sending a very loud and strong message to people with disabilities all over this country that we passed the Americans with Disabilities Act with our eyes wide open; that we knew what we were doing; that we assembled the data. We had all of the evidence we needed. We compiled the record, and we want to keep it as the law of the land--as the civil rights law of the United States. It would be a powerful message because I can tell you this. If Jeffrey Sutton ascends to the Sixth Circuit Court of Appeals, Americans with disabilities all over this country will see the hands of the clock turning backward--back, back to the days of discrimination, back to those days when they were afraid to enter that door, or to demand their rights as an American citizen, as a human being. I believe it is going to cause people with disabilities to wonder whose side we are on. Whose side are we really on? I hope we are on the side of civil rights.

Mr. HARKIN

Mr. HARKIN. Mr. President, today I join my colleague from Mississippi, the Chairman of the Senate Committee on Agriculture, Nutrition, and Forestry, in support of this bill that would keep fresh fruits and vegetables going to over 100 schools throughout the Nation. We hear a great deal about the importance of teaching our children good nutrition as well as about the epidemic of obesity and poor eating habits among American children. But for all the talk and concern, we do far too little about it. Last year, I worked with my colleagues to take concrete steps to address these issues. Concerned about the fact that many children today have only minimal experiences with fresh fruits and vegetables, we created a pilot project that provides fresh fruits and vegetables to schools in Iowa, Indiana, Michigan, Ohio, and to schools on an Indian reservation at Zuni, NM. Despite the fact that we know there are many positive benefits associated with the consumption of fresh fruits and vegetables, we still fail to do nearly enough to encourage their consumption through our Federal nutrition programs. We must do more to encourage their purchase in our schools and to promote their consumption on an individual level. The reports that we are getting back from schools about this program are absolutely tremendous. Just last week my staff had a conference call with school administrators, parents, and students at Zuni, NM. They are almost ecstatic in their praise of the program. The children were excited to be able to try foods that they had never had a chance to eat before. Parents report that their kids are coming home to them and asking them to buy the same fruits and vegetables for the home that they eat at school. And school administrators report healthier diets, fewer discipline problems, and buy-in from the entire school community. Even the janitors love the program. Dieticians and school officials in Iowa tell me that, because of the fruit and vegetable pilot, their work is more fulfilling now than ever before. This is a program that we need to expand so that all schools are able to participate. As the Senate moves forward with the reauthorization of our child nutrition programs this year, I'll be looking at ways that we can do this and at ways that we can encourage healthier lifestyles for all of our children. In the meantime, the bill that I am introducing today allows us to extend the current fruit and vegetable pilot for an additional year. Because of the short timeframe that we had to actually set up the fruit and vegetable pilot, many of the schools were not able to begin their participation in the program as quickly as they had hoped. As a result, many schools will have funds remaining at the end of the school year. They have told me, as has the Department of Agriculture, that they would like to use their carryover funds for an additional year. This bill simply extends the authorization of the Department of Agriculture to continue the program for another year. This does not provide any new money. It simply allows the schools to carryover current funds into the 2003 school year. The Congressional Budget Office has indicated that there is no cost associated with this. As evidenced by the concurrence of Senator Cochran, this is a non- partisan, non-controversial bill, and I urge my colleagues to work with me to see that this program is extended before its current authorization runs out on June 30 of this year.

Mr. HARKIN

Mr. HARKIN. Mr. President. Today I am introducing legislation, the Assure Access to Mammography Act of 2003, on behalf of myself and my colleagues, Senators Snowe, Inouye, Graham of South Carolina, Murray, Corzine, Biden, Specter, Landrieu, Johnson, Lincoln, Hollings, Mikulski, Clinton, and Ms. Collins to ensure women have full and timely access to preventive breast cancer screenings. As you know, the earlier a woman is diagnosed with breast cancer, the earlier she can begin to receive treatment and the more likely she will survive. Unfortunately, due to inadequate reimbursement rates for mammograms, women increasingly are having problems getting the mammograms they need. Across the nation, there have been reports of women waiting up to six months for an appointment for this simple procedure. While mammograms often cost up to $150 to administer, Medicare's reimbursement rate is currently set at about $82, barely over half the actual cost of the procedure. This disparity increasingly makes access a real problem, forcing many private centers to shut down and creating a shortage of providers willing to provide services significantly below cost. The Assure Access to Mammography Act would reverse this growing and alarming trend by correcting the two primary causes of the problem. First, it would increase Medicare reimbursement to radiologists to a reasonable level to ensure health care providers are reimbursed fairly for mammography services. Second, the bill would increase the number of radiologists by increasing the Graduate Medical Education payments to provide for three additional radiologists in each teaching hospital. Finally, the Assure Access to Mammography Act would provide a MEDPAC study on the Medicare reimbursement structure for gender specific medical procedures so that Congress and CMS have the tools we need to make appropriate health policy decisions. This is an issue that hits close to home for me. Both of my sisters died of breast cancer, at a time when mammograms were not readily available. While imperfect, mammograms are the best-known way to diagnose breast cancer at an early stage in order to reduce mortality. As our society ages, one million additional women each year are needing regular mammograms. The Assure Access to Mammography Act will provide the resources our health care system needs to guarantee all women access to the mammograms they need to ensure that breast cancer is detected early enough to apply appropriate treatments effectively. I look forward to working with my colleagues to pass this needed bipartisan legislation.

Mr. HARKIN

Mr. HARKIN. Mr. President. Today I am introducing legislation, the Assure Access to Mammography Act of 2003, on behalf of myself and my colleagues, Senators Snowe, Inouye, Graham of South Carolina, Murray, Corzine, Biden, Specter, Landrieu, Johnson, Lincoln, Hollings, Mikulski, Clinton, and Ms. Collins to ensure women have full and timely access to preventive breast cancer screenings. As you know, the earlier a woman is diagnosed with breast cancer, the earlier she can begin to receive treatment and the more likely she will survive. Unfortunately, due to inadequate reimbursement rates for mammograms, women increasingly are having problems getting the mammograms they need. Across the nation, there have been reports of women waiting up to six months for an appointment for this simple procedure. While mammograms often cost up to $150 to administer, Medicare's reimbursement rate is currently set at about $82, barely over half the actual cost of the procedure. This disparity increasingly makes access a real problem, forcing many private centers to shut down and creating a shortage of providers willing to provide services significantly below cost. The Assure Access to Mammography Act would reverse this growing and alarming trend by correcting the two primary causes of the problem. First, it would increase Medicare reimbursement to radiologists to a reasonable level to ensure health care providers are reimbursed fairly for mammography services. Second, the bill would increase the number of radiologists by increasing the Graduate Medical Education payments to provide for three additional radiologists in each teaching hospital. Finally, the Assure Access to Mammography Act would provide a MEDPAC study on the Medicare reimbursement structure for gender specific medical procedures so that Congress and CMS have the tools we need to make appropriate health policy decisions. This is an issue that hits close to home for me. Both of my sisters died of breast cancer, at a time when mammograms were not readily available. While imperfect, mammograms are the best-known way to diagnose breast cancer at an early stage in order to reduce mortality. As our society ages, one million additional women each year are needing regular mammograms. The Assure Access to Mammography Act will provide the resources our health care system needs to guarantee all women access to the mammograms they need to ensure that breast cancer is detected early enough to apply appropriate treatments effectively. I look forward to working with my colleagues to pass this needed bipartisan legislation.

Mr. HARKIN

Mr. HARKIN. Mr. President, on behalf of myself and Senators Murray, Kennedy, Mikulski, Durbin, Leahy, Akaka, Feingold and Boxer, I am introducing the Fair Pay Act. April 15, tax day, is also Equal Pay Day. If you add what women made last year and so far this year, that would be the same amount men made in all of last year. In other words, it takes women 16 months to make what men make in 12. There's been a lot of tax talk from Congress and the White House lately. We've got more than 1 million people out of work. And we've got millions of families struggling to make ends meet. The White House believes a new $750 billion tax cut for the rich is the solution. I disagree. One way we can put more money in the pockets of working families--pay women what they're worth. Nearly 40 years after the Equal Pay Act became law, women are still paid only 76 cents for every dollar a man earns. Working women at all income and education levels are affected by the wage gap. Last year, the GAO found that the pay gap continues to effect women in management and that, for these women, the pay gap has actually widened since 1995. Regardless of education, the impact is the same. These women work as hard as men, but have less money to pay the bills, to put food on the table, or to save for their retirement or their child's education. That is simply wrong and it must end. We must close the wage gap once and for all. First, we need to do a better job by enforcing and strengthening the penalties for the law that demands equal pay for equal work. That's why I support the Paycheck Fairness Act, sponsored by Senator Daschle and Congresswoman DeLauro. Another part of discrimination against women in the work place is the historic pattern of undervaluing and underpaying so-called ``women's jobs.'' Millions of women today working in female-dominated jobs--as social workers, teachers, child care workers and nurses--are ``equivalent'' in skills, effort, responsibility and working conditions to similar jobs dominated by men. But these women aren't paid the same as men. That's what the Fair Pay Act--that Congresswoman Norton and I are reintroducing today--would address. Unfairly low pay in jobs dominated by women is un-American, it is discriminatory and our bill would make it illegal. 20 States have ``fair pay'' laws and policies in place for their employees, including my State of Iowa. And Iowa had a Republican legislature and Governor when this bill passed into law. So, ending wage discrimination against women in a nonpartisan issue. Some say we don't need any more laws; market forces will take care of the wage gap. If we had relied on market forces we would have never passed the Equal Pay Act, the Civil Rights Act, the Family Medical Leave Act or the Americans with Disabilities Act. I first introduced the Fair Pay Act in 1996 after the Iowa Business and Professional Women alerted me to this problem. And as long as I'm in the U.S. Senate I will continue to fight to pass this important legislation so we can end wage discrimination against women once and for all.

Mr. HARKIN

Mr. HARKIN. Mr. President, on behalf of myself and Senators Murray, Kennedy, Mikulski, Durbin, Leahy, Akaka, Feingold and Boxer, I am introducing the Fair Pay Act. April 15, tax day, is also Equal Pay Day. If you add what women made last year and so far this year, that would be the same amount men made in all of last year. In other words, it takes women 16 months to make what men make in 12. There's been a lot of tax talk from Congress and the White House lately. We've got more than 1 million people out of work. And we've got millions of families struggling to make ends meet. The White House believes a new $750 billion tax cut for the rich is the solution. I disagree. One way we can put more money in the pockets of working families--pay women what they're worth. Nearly 40 years after the Equal Pay Act became law, women are still paid only 76 cents for every dollar a man earns. Working women at all income and education levels are affected by the wage gap. Last year, the GAO found that the pay gap continues to effect women in management and that, for these women, the pay gap has actually widened since 1995. Regardless of education, the impact is the same. These women work as hard as men, but have less money to pay the bills, to put food on the table, or to save for their retirement or their child's education. That is simply wrong and it must end. We must close the wage gap once and for all. First, we need to do a better job by enforcing and strengthening the penalties for the law that demands equal pay for equal work. That's why I support the Paycheck Fairness Act, sponsored by Senator Daschle and Congresswoman DeLauro. Another part of discrimination against women in the work place is the historic pattern of undervaluing and underpaying so-called ``women's jobs.'' Millions of women today working in female-dominated jobs--as social workers, teachers, child care workers and nurses--are ``equivalent'' in skills, effort, responsibility and working conditions to similar jobs dominated by men. But these women aren't paid the same as men. That's what the Fair Pay Act--that Congresswoman Norton and I are reintroducing today--would address. Unfairly low pay in jobs dominated by women is un-American, it is discriminatory and our bill would make it illegal. 20 States have ``fair pay'' laws and policies in place for their employees, including my State of Iowa. And Iowa had a Republican legislature and Governor when this bill passed into law. So, ending wage discrimination against women in a nonpartisan issue. Some say we don't need any more laws; market forces will take care of the wage gap. If we had relied on market forces we would have never passed the Equal Pay Act, the Civil Rights Act, the Family Medical Leave Act or the Americans with Disabilities Act. I first introduced the Fair Pay Act in 1996 after the Iowa Business and Professional Women alerted me to this problem. And as long as I'm in the U.S. Senate I will continue to fight to pass this important legislation so we can end wage discrimination against women once and for all.

Mr. HARKIN

Mr. HARKIN. Mr. President, in the early 1990s, a large number of U.S. companies began a process of switching their defined benefit pension plans to cash balance plans. Many of the employees whose pension plans were to be altered drastically weren't told and didn't notice that they were essentially going to be working for years without earning any more benefits. Their not knowing was viewed as a key benefit by management. And the retirees were furious. As Keith Williams with Watson Wyatt Worldwide and Amy Viener with William Mercer, two firms that put together these plans in 1998 said at an Actuaries conference: Mr. Williams: I've been involved in cash balance plans five or six years down the road and what I have found is that while employees understand it, it is not until they are actually ready to retire that they understand how little they are actually getting. Ms. Viener: Right, but they're happy while they're employed. One of the most abusive practices in cash balance conversions is known as ``wear away.'' Older workers see nothing added to their pensions as the value of the pensions is frozen, often for many years, until it reaches the lower value of the new pension plan. At the same time younger workers are getting their pensions increased. In my view, this is clearly age discrimination and bad pension policy. In 1999, I introduced a bill to make it illegal for corporations wear away the benefits of older workers during conversions to cash balance plans. I offered my bill as an amendment. Forty-eight Senators, including 3 Republicans, voted to waive the budget point of order so we could consider this amendment. We did not have enough votes then, but I believe the tide is turning. After that vote, more and more stories came out about how many workers were losing their pensions. In September of 1999, the Secretary of the Treasury put a moratorium on conversions from defined benefit plans to cash balance plans. That moratorium has been in effect now for over three years. In April of 2000, I offered a sense-of-the-Senate resolution to stop this practice, and it passed the Senate unanimously. But last December, the Treasury decided to end that moratorium. The Department proposed a regulation that will allow hundreds of companies, many employing thousands of workers each to go forward with conversions that will allow for the wear-away of the current benefits of people across the country. This plan is breathtaking in its audacity. In a time when people have lost their life savings to market downturns and corporate duplicity, they are looking at changing the rules so that employers can once again bolster their bottom line by shifting funds from the pensions they promised their workers. I will not stand by and let it happen. There are over 800 age discrimination complaints currently pending before the EEOC based on cash balance conversions. How many more will there be if we again start allowing companies to make these abusive conversions? I want to make it very clear: I am not opposed to all cash balance plans. Some cash balance plans can be very good. What I oppose is the unilateral decision of a company being able to change their plans and stop contributing to older employees' pensions while benefits are given to newer employees. That is what this issue is all about. It is fairness. It is equity. I know discussion of pension law can become very convoluted. But in essence, what some of these companies have been doing to these workers is nothing less than sheer thievery. They are able to save millions, in some cases hundreds of millions of dollars, by converting their plans, robbing workers who have been loyal and hard working, robbing them of their rightful claims on future benefits, It is not right. It is not fair. There is one thing that has distinguished the American workplace from others around the world. We have valued loyalty. At least we used to. That is one of the reasons pension plans exist--the longer you work somewhere, the more you earn in your pension program. Obviously, the longer you work someplace, the better you do your job, the more you learn about it, the more productive you are. We should value that loyalty. If companies are able to wear away the benefits of the longest serving workers, what kind of a signal does that send to the workers? It tells workers they are fools if they are loyal because if you put in 20 to 25 years, the boss can just change the rules of the game, and break their promise. It tells younger workers that it would be crazy to work for a company for a long time, that it's best to hedge your bets and move on as soon as it is convenient. This destroys the kind of work ethic we have come to value and that we know built this country. But some of these cash balance conversions counter all of that. Her is an analogy. Imagine I hire someone for five years with a promise of a $50,000 bonus at the end of five years of service. At the end of three years, however, I renege on the $50,000 bonus. But the employee has three years invested. Had they known that the deal was going to be off, perhaps they would not have gone to work for me. They could have gone to work someplace else for a total higher compensation package. Is that the way we want to treat workers in this country, where the employer has all the cards and employees have none, and employers can make whatever deal they want, but can change the rules at any time? That is why I am introducing this legislation. It is simple. It says that you have to give older, longer serving employees a choice, at retirement, when their pension plan is converted to a cash balance plan to get the benefits earned in the old plan instead. It also says that employers must start counting the new cash balance benefits where the old defined benefit plan left off, instead of starting the cash balance plan at a lower level than an employee had already earned. In the March 3, 2002 issue of Fortune magazine, Janice Revell said of the possible impending flood of cash balances conversions: ``Brace yourself for a very un-fairy-tale ending to this tory. Millions of American workers are sure to see a large slice of their retirement income go up in smoke. It may not happen right away, but the groundwork is being laid right now.'' I urge my colleagues in the Senate to join me in cosponsoring this measure, so that we can stop the flood before it starts.

Mr. HARKIN. Mr. President, imagine a world with cars that spew out no smog, no toxic emissions, and no greenhouse gases. The only thing that would come out of the tailpipe would be water pure enough to drink. Imagine a world in which we don't import a drop of Mideast oil, because clean, domestic, renewable energy sources meet all of our needs. Imagine a world in which we don't need to worry about a terrorist strike on our large nuclear power plants, or a storm causing a blackout over a large region, because we get all of our electricity from small distributed generators on farms and in buildings throughout the country. Sound too good to be true? The technology to do this, using hydrogen energy and fuel cells, is out of the labs and being tested on our streets and in our buildings today. For those of us who have been working for many years to bring this vision into reality, that is very exciting. But we still need a major effort to bring the costs down and commercialize the technology. And there is remarkable bipartisan agreement on the need for government action. A couple years ago we were fighting for scraps of funding. Now the President has proposed $1.7 billion over 5 years toward getting hydrogen fuel cell vehicles on the road. The Senate energy bill last year, before it died in conference, included tax incentives for stationary fuel cells, fuel cell vehicles, hydrogen vehicles, hydrogen fueling infrastructure, and hydrogen fuel. But we are still too timid to bring about the fundamental shift to the hydrogen economy. The Department of Energy is working toward a go- no go decision by the car companies by 2015, and mass production of vehicles by 2020. But the car companies themselves have been talking about commercial vehicles by 2010. We need a bolder, more comprehensive plan. That's why I am introducing the Hydrogen and Fuel Cell Energy Act of 2003. This bill addresses three critical requirements to bringing hydrogen energy and fuel cells into commerce, and start gaining their environmental and security benefits, as soon as technically feasible. First we need a technological push. We need better fuel cell stack components to reduce costs and improve longevity. We need lighter, more efficient ways to store hydrogen on-board vehicles. In the long term, we need cheaper ways of converting renewable energy to hydrogen fuel. This bill reauthorizes the Matsunaga Act, which established the Federal hydrogen energy research program. It updates the language and sets clearer priorities. It expands the authorization to cover fuel cell research and development as well, to reflect the technical and bureaucratic reality that research on fuel cells--the most efficient, flexible, and cleanest way to use hydrogen energy--has become inextricably linked to research on hydrogen energy. It supports work on domestic and international codes and standards, to work through a major regulatory barrier to working with combustible hydrogen and to making all the infrastructure pieces fit together. It includes a specific mandate to do public education on hydrogen and fuel cells and to do university training in critical skills needed in the industry. And it increases funding levels over the next few years to accelerate progress in pre-commercial technologies. Second, and perhaps most important right now, we need a near-term demand pull. As long as the fuel cells and hydrogen appliances are made by hand, they will remain very expensive. But it's also expensive to build the factories to build them more cheaply. We need support to get industry over that initial cost hump. The first step is large demonstration programs that serve a dual purpose: they provide a realistic test of how the laboratory technologies work in the real world, and they provide funding for pre- commercial prototypes of the technologies, including starting to build a hydrogen fueling infrastructure. The Hydrogen and Fuel Cell Energy Act authorizes several new, large demonstration programs: The main demostration program would provide over $1 billion over 7 years for demonstrations of the full range of fuel cell applications and associated hydrogen infrastructure. These demonstrations would include fleets of fuel cell passenger vehicles, fuel cell buses and farm vehicles, stationary fuel cells in houses and commercial buildings, and portable fuel cells such as auxiliary power units in trucks. A second, closely related program, would provide hydrogen fueling infrastructure over major transportation corridors and entire regions, and then demonstrate hydrogen-powered vehicles that are not tethered to a single pump. Early demonstrations, at least, would likely use vehicles that burn hydrogen; these are similar to gas-electric hybrids that you can buy today, but run on hydrogen rather than gasoline. These vehicles provide most of the benefits of fuel cell vehicles at a fraction of the current cost. They are not as good as fuel cell vehicles in the long term, they are less efficient, less flexible, and produce a little pollution, but would move us a long way toward the goal and would provide a good large-scale test of a hydrogen fueling system. A third program would demonstrate hydrogen and fuel cell technologies in foreign countries. Hydrogen energy could have an early application in places where a competing fossil fuel infrastructure is not already well-developed. And assisting this application is in our national interest in order to promote global development without causing global warming and other harmful environmental effects, and to increase the global market for American hydrogen and fuel cell technologies. The last program would focus on emerging technologies for production of hydrogen from renewable resources. Two approaches show particular promise for clean, efficient production of hydrogen at this time. Biorefineries make hydrogen and other products from biomass. And in ``electrofarming'' the hydrogen is produced and used on the same farm. The hydrogen might be made by growing and reforming biomass, from wind energy, or from farm waste; it could be used in farm vehicles and equipment and for heat and electricity in farm buildings. All these demonstration programs would be conducted using competitive merit review of funding proposals from a wide variety of companies and organizations, and they would require cost-sharing from awardees. Third, we need to show there will be a market for commercial hydrogen and fuel cell technologies in the long term. The Federal Government can do this by buying early commercial products and by providing incentives to others to do so, in recognition of their public benefits. The bill includes Federal purchase requirements for both zero emission vehicles and stationary fuel cells. The vehicle requirements are similar to Federal fleet requirements for purchase of alternative fuel vehicles. They would require zero emission vehicles, most likely hydrogen fuel cell vehicles, to make up an increasing percentage of Federal fleet vehicle purchases up to 75 percent. Alternative fuel vehicles with very low emissions, such as hydrogen hybrid vehicles, would get partial credit. For stationary fuel cells, the bill would require modifying energy efficiency regulations for Federal buildings to presume use of fuel cells to power new Federal buildings and to encourage their use in older buildings. The bill also provides a broad array of tax incentives for stationary and portable fuel cells, hydrogen and fuel cell vehicles, hydrogen fueling infrastructure, and hydrogen fuel. These incentives are similar to those that have been proposed in the CLEAR Act on alternative fuel vehicles, in previous bills on stationary fuel cells, and in last year's energy bill. However, this bill makes some important changes. It makes all the tax credits tradable so that government agencies and non- profit organizations can use them as well as consumers and private companies. It increases the credit for hydrogen fueling infrastructure to recognize the cost of making the hydrogen on-site, not just pumping it. It adds an additional incentive for hydrogen from renewable resources to encourage a transition to a sustainable hydrogen system. And most importantly, it extends the tax credits so the industry will know the incentives will be there when they are needed--when real commercial products are available. Finally, the bill ensures effective coordination and oversight of the expanded Federal hydrogen and fuel cell energy activities, with a new interagency task force to coordinate activities, a revamped technical advisory panel, and periodic outside review by the National Academies. These measures will require a significant Federal investment in our energy future. But with these measures we can use hydrogen and fuel cell technologies to turn into reality a vision of cars that don't pollute, of power that won't go out, and of feeling less dependent on an area of the world where we are fighting the second war in recent years. It is time to take these steps now.