Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet in executive session during the session of the Senate on Wednesday, April 27, 2005, at 10 a.m. in SD-430.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet on Wednesday, April 27, 2005, at 10 a.m. for a hearing titled ``Chemical Attack on America: How Vulnerable Are We?''

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Wednesday, April 27, 2005, at 9:30 a.m. in Room 485 of the Russell Senate Office Building to conduct an oversight hearing on Regulation of Indian Gaming.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on ``Executive Nominations'' on Wednesday, April 27, 2005 at 9:30 a.m. in Dirksen Senate Office Building Room 226. Witness List: Panel I: Senators. Panel II: Paul D. Clement, to be Solicitor General of the United States.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Rules and Administration be authorized to meet during the session of the Senate on Wednesday, April 27, 2005, at 9:30 a.m., to markup S. 271, a bill which reforms the regulatory and reporting structure of organizations registered under Section 527 of the Internal Revenue Code.

Mr. HATCH. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on April 27, 2005 at 9:30 a.m. to hold a hearing.

Mr. HATCH. Mr. President, I ask unanimous consent that the Special Committee on Aging be authorized to meet Wednesday, April 27, 2005 from 10 a.m.-12 p.m. in Dirksen G50 for the purpose of conducting a hearing.

Mr. HATCH

Mr. HATCH. I ask unanimous consent we be extended an extra 15 minutes, as well.

Mr. HATCH. The Senator from Delaware a few minutes ago claimed we have never changed our procedures by majority vote. Four times the distinguished Senator from West Virginia led this body to do exactly that when he was acting as majority leader--in 1977, 1979, 1980, and 1987. Using a ruling from the Chair and a majority of all the Senate, a simple majority, we changed procedure relating to both legislation and nominations. The record has to be made clear. All we are asking is the 214-year tradition of the Senate that judicial nominees not be filibustered be followed. That has been the tradition of the Senate up until President Bush became President. All we are asking is that every one of these qualified nominees who have reached the floor receive an up-or-down vote. That is all we are asking. These are highly qualified nominees. The ABA has ruled they are qualified in every case. They all have a majority bipartisan vote in their favor. If our colleagues on the other side do not want to vote for them, they can vote against them. That will be their right. I would fight always to maintain that right. But give them a vote, vote up or down. That is what we have always done for 214 years before this President became President. The actions of our colleagues on the other side amount to changing that 214-year traditional history of this Senate. By the way, we never called this the nuclear option. It was called the nuclear option by the Democrats. We called it the constitutional option because the Constitution says the President has the right to appoint and nominate these people for judicial positions. We have the right to advise and--it is sometimes left off in this body--consent, which means a vote up and down. That is what I think our colleagues ignore. This is a dangerous thing. I call it the constitutional option, or I call it the Byrd option because our distinguished friend, the Senator from West Virginia, is the one who used this four times. If politics is a medicine, an effective prescription gives an accurate diagnosis. I take a step back and offer a diagnosis of our current struggle over how to conduct the judicial confirmation process. I hope this will bring a few pieces together, connect some dots, and provide a little perspective. The first principle is every judicial nomination reaching the Senate deserves an up-or-down vote. This principle has constitutional roots, historical precedent, and citizen support. I begin with the Constitution because that is where we should always begin. The Constitution is the supreme law of the land. Along with the Declaration of Independence, it is one of the foundational organic laws of the United States. It is the charter that each of us, as Senators, swears an oath before God to preserve, protect, and defend. That Constitution separates the three branches of Government, assigning legislation to us in the legislative branch, and assigning appointments to the President in the executive branch. We have heard that the Constitutional Convention considered other arrangements for appointing judges. That may be, but the Constitutional Convention rejected those arrangements. Rejected ideas do not govern us. The Constitution does. And the Constitution makes the President, in Alexander Hamilton's words, the ``principal agent'' in appointments, while the Senate is a check on that power. Giving judicial nominations reaching the floor an up-or-down vote, that is, exercising our role of advice and consent through voting on nominations, helps us resist the temptation of turning our check on the President's power into a force that can destroy the President's power and upset the Constitution's balance. Historically, we have followed this standard of everybody who reaches the floor getting an up-or-down vote. When Republicans ran the Senate under President Clinton, we gave each of his judicial nominations reaching the floor a final confirmation decision, an up-or-down vote. We took cloture votes, that is, votes to end debate, on four of the hundreds of nominees reaching us here. All four were confirmed. As a matter of fact, we confirmed 377 judges nominated by President Clinton, almost the same number as the all-time confirmation champion, and that was Ronald Reagan, who got 382. But Ronald Reagan had 6 years of a Republican Senate to help him. President Clinton only had 2 years of a Democrat Senate to help him. Yet, with the aid of the Republicans on the Judiciary Committee and in this body, he got 377 approved. In fact, even on the most controversial appeals court nominations by President Clinton, the Republican leadership used cloture votes to prevent filibusters and ensure up-or-down votes, exactly the opposite of how cloture votes are being used during President Bush's Presidency. This principle that every judicial nomination reaching the Senate floor deserves an up-or-down vote not only has constitutional roots and historical precedent, it also has citizen support. I saw in the Washington Post yesterday a poll framed in partisan terms, asking whether Senate rules should be changed ``to make it easier for the Republicans to confirm Bush's judicial nominees.'' With all due respect, this question could easily have been written in the Democrats' new public relations war room. I am actually surprised that such a biased question did not get even more than 66-percent support. A more balanced, neutral, fair poll was released yesterday, asking whether Senate procedures should make sure that the full Senate votes up or down on every judicial nomination of any President. The results, not surprisingly, were exactly the opposite of the biased poll, with 64 percent of Americans, including 59 percent of moderates and almost half of all liberals, embracing this commonsense, fair, and traditional standard. The second aspect of this diagnosis is that the judicial nominees being denied this traditional up-or-down vote are highly qualified men and women, with majority, bipartisan support. Last week, I addressed how opponents of President Bush's nominees play games with words such as ``extremist.'' Just as they want to talk about a judicial appointment process the Constitution did not establish, these critics want to talk about everything but what these nominees would do on the bench. We know, from abundant testimony by those who know these nominees best, that no matter how provocative their speeches off the bench or strongly held beliefs in their hearts and minds, these nominees are or would be fair, impartial, and evenhanded on the bench. Yet they are called extremists. All 10 of them--there are only 7 remaining--but all 10 of them had qualified ratings, and most well qualified, the highest rating of the American Bar Association. By the way, that was considered the ``gold standard'' during the Clinton years by our friends on the other side. Now this is the real standard. It is hard to believe we are actually arguing about whether we should vote on judicial nominations and whether highly qualified nominees, with majority support--bipartisan, majority support--should be confirmed. Yet the third part of this diagnosis is that Senate Democrats are trying to change our tradition of giving judicial nominations reaching the Senate floor an up-or-down vote. Senators, of course, are free to vote against them for any reason. We must, of course, have a full and vigorous debate about these nominees and their qualifications. The critics, however, do not want to have that debate. Democrats in this body and the leftwing interest groups that, to a certain extent, seem to control them, want only to seize what they cannot win through the fair, traditional system. Beginning in the 108th Congress, for the first time in American history, they are now using the filibuster not to debate but to defeat majority-supported judicial nominations. They are trying to rig the confirmation process, to pry us away from our tradition that respected the separation of powers, and force us into a brave, new world which turns the judicial appointment process inside out. They want to turn our check on the President's appointment power into a force that hijacks that power altogether. That would be serious and constitutionally suspect if a Senate majority did it. It is even more serious when, as we see today, a minority of Senators--all partisan Senators--tries to capture the process. For 2 years now, we have heard claims that these filibusters are nothing new, that they have been part and parcel of how the Senate has long done its confirmation business. While some questions in this debate may be subjective and complex, this is not one of them. The current filibusters target bipartisan, majority-supported judicial nominations, and they defeat them by preventing confirmation votes. Either that happened before the 108th Congress or it did not. Let us look at what our Democratic colleagues have claimed. On March 11, 2003, the distinguished Senator from Vermont displayed here on the Senate floor a chart titled: ``Republican Filibusters of Nominees.'' He said his list proved that Republicans have ``succeeded in blocking many nominees by cloture votes.'' Anyone can look it up for him or herself. The whole chart is right there on page S3442 of the Congressional Record. It turns out only 6 of the 19 names on the chart were judicial nominations, that the Senate actually confirmed 5 of those 6, and the other one did not have majority support. And there was a real question whether that was a filibuster raised, not in the least sense by the person who conducted the debate on the Republican side, Senator Robert Griffin, who had an impeccably honest--and still does--an impeccably honest reputation. He said there was never a desire to filibuster Justice Fortas. He said they wanted 2 more days of debate to make their case. But, he said, they had enough votes to defeat him up and down. Now, he was here on the Senate floor. He knew it. He led the fight. And the votes were bipartisan, almost equal. It turns out, again, that only 6 of the 19 names on the chart were judicial nominations, that the Senate actually confirmed 5 of them, and the only one they did not was Justice Fortas, because Lyndon Johnson pulled him, not wanting to be embarrassed. Far from justifying today's filibusters, the chart of the distinguished Senator from Vermont proved no precedent exists at all. On November 12, 2003, the Senator from Vermont tried again, this time with a list of what he claimed were Clinton appeals court nominees supposedly blocked by Republicans. Once again, the list included nominations the Senate confirmed--every one of them. How can a confirmed nomination be called a blocked nomination? It cannot. Not a single nomination on Senator Leahy's list is similar to the nominations being filibustered today. That same day, November 12, 2003, the distinguished Senator from Illinois, Mr. Durbin, named 5 judicial nominations which he said had been filibustered. Once again, not one of them is a precedent for filibusters happening today. You would think no one with a straight face would claim that ending debate and confirming nominations is somehow precedent for not ending debate and refusing to confirm nominations. On April 15, 2005, the distinguished assistant minority leader, Senator Durbin, expanded his previous list, now offering us 12 examples of what he said were judicial nominations requiring at least 60 votes for cloture to end a filibuster. I addressed this in more detail last week. Not one--not one--of those 12 of Senator Durbin's supposed precedents is any precedent at all. The first nomination on his list occurred in 1881, 36 years before we even had a cloture rule in the Senate. In fact, if we truly did what he apparently wants us to do, and treated his listed examples as a confirmation guide, we would vigorously debate judicial nominations, invoke cloture if we needed to, and then vote on the confirmations. That is what happened. This game continued as recently as 2 months ago. On Monday, April 25, on CNN's ``Crossfire'' program, the leader of a prominent leftwing group claimed that more than 30 nominations--here is the list--had been filibustered. I have this list right here in my right hand. It is titled: ``Filibusters of Nominations.'' It lists 13 judicial nominations out of the 30, and not one of them is at all like the filibusters being conducted today--not one. We did not even take a cloture vote on two of them. We invoked cloture on eight of them. We confirmed 12 of the 13. And the one we did not, did not have majority support, the Fortas nomination, but had bipartisan opposition. Accepting such fraudulent arguments requires believing that ending debate on judicial nominations is the same as not ending debate, that confirming judicial nominations is the same as not confirming them, and that judicial nominations without majority support are the same as those with majority support. As you can see, the liberal propaganda machine has been working overtime. In addition to these bizarre claims I described, they worked to turn what was once common sense and accepted fairness into something that sounds sinister and unseemly. They manufacture nasty phrases such as ``court packing'' and ominous warnings about ``one-party rule.'' Now, we are told, preventing up-or-down votes on even majority-supported judicial nominations is the only way to prevent our entire constitutional order from imploding. The sky is falling, and we are all about to slide into the abyss. The purveyors of this fantasy would have us look to President Franklin Delano Roosevelt who, they tell us, wanted to pack the Supreme Court. The Senate rejected his legislative proposal to expand the Court so he could appoint more Justices. By taking this stand, the storytellers say, the Senate kept one-party rule from packing the Court. Well, as Paul Harvey might say: Here is the rest of the story. The Senate, even though dominated by President Roosevelt's own party, did not support this legislative plan. And it turns out President Roosevelt did not need any legislative innovations to pack the Supreme Court. He packed it all right, doing it the old-fashioned way, by appointing eight out of nine Justices in 6 years. Mind you, during the 75th to the 77th Congress, Democrats outnumbered Republicans by an average of 70 to 20. Now, that is one-party rule. In those years, from 1937 to 1943, our cloture rule applied only to bills. This meant that ending debate on other things, such as nominations, required unanimous consent. A single Senator in that tiny, beleaguered minority could conduct a filibuster of President Roosevelt's nominations and thwart the real court packing that was in full swing. Now, if the filibuster were the only thing preventing one-party rule from packing the courts, and the filibuster were so easily used, surely there must be in history filibusters of President Roosevelt's Supreme Court nominations. If the warnings, frantic pleas, and hysterical fundraising appeals we hear today make any sense at all, the filibuster would certainly have been used in FDR's time. I hate to burst anyone's bubble, but there were no filibusters, not even by a single Senator, not against a single nominee. In fact, FDR's 8 Supreme Court nominees were confirmed in an average of 13 days, and 6 of the 8 were confirmed without even a rollcall vote. So if this is to protect the minority, why has it not ever happened before President Bush became President? Even when we look at the very examples and stories the other side uses, we see no support for using the filibuster against majority-supported judicial nominations. Last week, here on the Senate floor, the distinguished Senator from Illinois repeated a selective version of this FDR story and asked what would happen today in a Senate dominated by the President's party. He asked: Will they rise in the tradition of Franklin Roosevelt's Senate? Well, I hope we do. I hope the Senate does exactly what Franklin Roosevelt's Senate did, by debating and voting on the President's judicial nominations. Franklin Roosevelt's Senate did not use the filibuster, even when the minority was much smaller and the filibuster much easier to use, and this Senate should not do so, either. Finally, the fourth piece to this diagnosis of our current situation is that Senate Democrats have threatened to shut down the Senate if the majority moves us back to the tradition--the 214-year tradition--of debating and voting on judicial nominations. To avoid what most Americans believe Senators come to Washington to do--debate and vote--we are now threatened with a party policy of open obstruction, a nuclear option of shutting down the Senate, at least to anything but what they agree to. I said a few minutes ago that the Constitution's separation of powers assigns legislative business to Congress and executive business, including appointments, to the President. Some Senators on the other side of the aisle are saying if they cannot hijack what is not theirs, they will destroy what is theirs. If they cannot abandon Senate tradition and use the filibuster to defeat majority-supported judicial nominations, they will undercut and disable the legislative process. And they call us radical. The Constitution gives the power of nomination and appointment to the President. The Senate provides a check on that power. I believe we must preserve the system of separated powers and checks and balances and resist those who would radically alter that system, turning the Senate's check on the President's power into a force that can overwhelm the President's power. Every judicial nomination reaching the Senate floor deserves an up- or-down vote. I argued that during the Clinton years, and I prevailed as chairman of the Judiciary Committee. That principle has constitutional roots, historical precedent, and citizen support. President Bush has sent two highly qualified nominees that we know have bipartisan majority support. They deserve to be treated decently and, after a full and vigorous debate, given an up-or-down vote. Our colleagues on the other side are trying to change our tradition. For the first time in more than two centuries, they want to use filibusters to block confirmation votes on judicial nominations here on the Senate floor. This radical innovation is not needed to prevent one- party rule from packing the courts. Republicans resisted using the filibuster under Roosevelt and Democrats should resist using it today. Finally, all Americans should be most concerned with the threat of some of our colleagues on the other side. Because they are unable to seize control of a judicial appointment process that does not belong to the Senate, Democrats say they will shut down the legislative process that does belong to the Senate. This cannot stand. With all due respect, they need to get both their principles and their priorities in order. Our former majority leader Bob Dole has a thoughtful column in today's New York Times also addressing Senate tradition and the prospect of returning to that tradition. No one loves this institution more than Senator Dole, and I think I am in that category, too. I ask unanimous consent that his column be printed in the Record.

Mr. HATCH. As our current majority leader Bill Frist put it a few days ago: I never thought it was a radical thing to ask Senators to vote. That is what we have traditionally done on judicial nominations that reach the floor, and that traditional standard should apply across the board no matter which party controls the White House and no matter which party controls the Senate. We should bind both parties, Republicans and Democrats, to do what is right. That is the diagnosis, and I hope we see an effective cure soon so we can get back to doing the people's business. I started off by saying one of the problems here is that every one of these Presidential nominees who reaches the floor should have an up-or- down vote, especially since they are listed as qualified by the American Bar Association, most of them well qualified, the highest rating you can have. They all have majority bipartisan support. We should not change 214 years of Senate tradition because some in this body don't like President Bush's nominees. People such as Priscilla Owen--she broke through the glass ceiling for women in this country and became a major partner in a major law firm. Her last election to the Texas Supreme Court was over 75 percent. She had every editorial board in the State of Texas supporting her; 15 former State bar presidents supported her, most of whom were Democrats. Yet they have called her an extremist. Janice Rogers Brown, a sharecropper's daughter, came up the hard way, put herself through college and law school as a single mother, worked in California State government in a variety of positions, wound up on the California Supreme Court where she wrote, at least in the last number of years, the majority of the majority opinions. She got reelected by 84 percent of the California voters, more votes than any other person running for the Supreme Court that year, including her colleagues. Yet she is called an extremist because she is a conservative African American. It is very dangerous stuff to say this will create nuclear war because we want to continue 214 years of Senate tradition. That is dangerous stuff. It is the wrong stuff. We ought to give these people a simple, straightforward up-or-down vote. I notice the distinguished Senator from North Carolina is waiting. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to submit an important resolution designating the 30th day of April 2005 as ``Dia de los Ninos: Celebrating Young Americans.'' Nations throughout the world, and especially within Latin America, celebrate Dia de los Ninos on the 30th of April, in recognition and celebration of their country's future--their children. Many American Hispanic families continue the tradition of honoring their children on this day by celebrating Dia de los Ninos in their homes. The designation of a day to honor the children of the Nation will help affirm for the people of the United States the significance of family, education, and community. This special recognition of children will provide us with an opportunity to reflect on their future, articulate their dreams and aspirations, and find comfort and security in the support of their family members and communities. This resolution calls on the American people to join with all children, families, organizations, communities, churches, cities, and states across the Nation to observe the day with appropriate ceremonies and activities. Joining me as original co-sponsors to this Resolution are John Cornyn, Charles E. Grassley, Kay Bailey Hutchison, Mel Martinez, and Lisa Murkowski. I strongly urge my colleagues to join us in promptly passing this Resolution designating April 30, 2005 Dia de los Ninos: Celebrating Young Americans.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a private relief bill for Miss Heilit Martinez. As my colleagues know, private relief is available in rare instances. I believe that the circumstances surrounding Miss Martinez's case are extraordinary and merit the introduction of private legislation. Therefore, I am pleased to introduce this legislation today. Miss Martinez was brought into the U.S. with her parents when she was about two years of age and has lived in Utah since that time. It is important to note that Miss Martinez did not make the decision to enter this country as a young child nor did she decide to overstay a visa, and she was led to believe that she had legal status. Miss Martinez was raised and educated in the United States and is currently a straight A student at Utah State University. Last year, Miss Martinez and a group of her college friends traveled into Mexico for a short day of sightseeing. When questioned at the port of entry, Miss Martinez declared that she had not been born in the United States but had legal immigration status. However, when she could not produce legal documentation, it was discovered that Miss Martinez was undocumented. She was detained for some days prior to her release. For all intents and purposes, Miss Martinez does not have a country to which to return. The United States is her home. Therefore, I urge my colleagues to support the passage of this legislation to help Miss Martinez on the path of becoming a lawful, permanent resident.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a private relief bill for Miss Heilit Martinez. As my colleagues know, private relief is available in rare instances. I believe that the circumstances surrounding Miss Martinez's case are extraordinary and merit the introduction of private legislation. Therefore, I am pleased to introduce this legislation today. Miss Martinez was brought into the U.S. with her parents when she was about two years of age and has lived in Utah since that time. It is important to note that Miss Martinez did not make the decision to enter this country as a young child nor did she decide to overstay a visa, and she was led to believe that she had legal status. Miss Martinez was raised and educated in the United States and is currently a straight A student at Utah State University. Last year, Miss Martinez and a group of her college friends traveled into Mexico for a short day of sightseeing. When questioned at the port of entry, Miss Martinez declared that she had not been born in the United States but had legal immigration status. However, when she could not produce legal documentation, it was discovered that Miss Martinez was undocumented. She was detained for some days prior to her release. For all intents and purposes, Miss Martinez does not have a country to which to return. The United States is her home. Therefore, I urge my colleagues to support the passage of this legislation to help Miss Martinez on the path of becoming a lawful, permanent resident.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a bill to clarify the tax treatment of a narrow range of health plans sponsored by associations. I am joined in this effort by my good friends and colleagues, the Chairman and the Ranking Democratic Member of the Finance Committee respectively, Senator Grassley and Senator Baucus. For many years, trade associations of small businesses have sponsored plans for their member companies to provide health care coverage to their employees. These plans have helped thousands of small businesses across the country control rising health care costs and keep administrative costs to a minimum. Unfortunately, final regulations issued by the Internal Revenue Service in 2003 concerning ``10-or-more'' employer health benefit plans that use the experience-rating method threaten to shut down the health plans of many associations. Essentially, these regulations state that health plans that utilize experience rating are not allowed to accumulate reserves, forcing them into the untenable position of either operating on a break-even basis or losing money. These regulations were not aimed directly at association health plans, but at certain other employer-provided benefits, such as life and disability insurance, where the IRS has found a pattern of abuse among some companies. However, the proposed implementation of the regulations make it impossible for an association to continue operating a health plan for the group's small business members, even where no abuse of the rules has occurred. For example, in my home State of Utah, at least one association of small businesses has already been negatively affected by these regulations. This association has dozens of small business members that are dependent upon the health plan the association has had in place for decades. Compliance with the regulations will very likely lead to increased costs for health coverage for the 1,300 employees and their 2,200 dependents of these small businesses. If the trust is not able to properly reserve funds for the future, some of these businesses could be forced to drop out as premiums rise higher and higher and the plan is unable to offset those increases with the reserves. The legislation we are introducing today would correct this problem by providing that medical benefit plans of bona fide associations may have a reserve of up to 35 percent. This amount is designed to give association health plans the flexibility they need without raising the potential for abuse. In the face of rising health care costs, employers that offer health coverage to their employees are struggling to maintain these benefits, and those who do not offer coverage find the cost of providing this important advantage increasingly out of reach. With the recent 59 percent spike in health care costs over the past five years, employers have had to resort to various cost-cutting moves in order to keep providing health care benefits. The IRS regulations affecting 10-or- more employer health benefit plans could strike a devastating blow to many small businesses, forcing them to stop providing health care benefits altogether, or at least making the coverage more expensive and/or less available to employees. This legislation was developed with bipartisan support. It is noncontroversial. It corrects a problem created by a well-meaning regulation that inadvertently overreached its target. I urge all of my colleagues to help us correct this error and not allow medical benefit health plans offered by small business associations to be forced to shut down, leaving thousands of employees facing higher costs for medical coverage, or worse, no coverage at all. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a bill to clarify the tax treatment of a narrow range of health plans sponsored by associations. I am joined in this effort by my good friends and colleagues, the Chairman and the Ranking Democratic Member of the Finance Committee respectively, Senator Grassley and Senator Baucus. For many years, trade associations of small businesses have sponsored plans for their member companies to provide health care coverage to their employees. These plans have helped thousands of small businesses across the country control rising health care costs and keep administrative costs to a minimum. Unfortunately, final regulations issued by the Internal Revenue Service in 2003 concerning ``10-or-more'' employer health benefit plans that use the experience-rating method threaten to shut down the health plans of many associations. Essentially, these regulations state that health plans that utilize experience rating are not allowed to accumulate reserves, forcing them into the untenable position of either operating on a break-even basis or losing money. These regulations were not aimed directly at association health plans, but at certain other employer-provided benefits, such as life and disability insurance, where the IRS has found a pattern of abuse among some companies. However, the proposed implementation of the regulations make it impossible for an association to continue operating a health plan for the group's small business members, even where no abuse of the rules has occurred. For example, in my home State of Utah, at least one association of small businesses has already been negatively affected by these regulations. This association has dozens of small business members that are dependent upon the health plan the association has had in place for decades. Compliance with the regulations will very likely lead to increased costs for health coverage for the 1,300 employees and their 2,200 dependents of these small businesses. If the trust is not able to properly reserve funds for the future, some of these businesses could be forced to drop out as premiums rise higher and higher and the plan is unable to offset those increases with the reserves. The legislation we are introducing today would correct this problem by providing that medical benefit plans of bona fide associations may have a reserve of up to 35 percent. This amount is designed to give association health plans the flexibility they need without raising the potential for abuse. In the face of rising health care costs, employers that offer health coverage to their employees are struggling to maintain these benefits, and those who do not offer coverage find the cost of providing this important advantage increasingly out of reach. With the recent 59 percent spike in health care costs over the past five years, employers have had to resort to various cost-cutting moves in order to keep providing health care benefits. The IRS regulations affecting 10-or- more employer health benefit plans could strike a devastating blow to many small businesses, forcing them to stop providing health care benefits altogether, or at least making the coverage more expensive and/or less available to employees. This legislation was developed with bipartisan support. It is noncontroversial. It corrects a problem created by a well-meaning regulation that inadvertently overreached its target. I urge all of my colleagues to help us correct this error and not allow medical benefit health plans offered by small business associations to be forced to shut down, leaving thousands of employees facing higher costs for medical coverage, or worse, no coverage at all. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I am very pleased to join with Senators Feinstein, Specter, Kennedy, and Harkin to introduce the Human Cloning Ban and Stem Cell Research Protection Act of 2005. This bill could help usher in the next great era of medical treatment. At the same time, it will criminalize the offensive practice of reproductive cloning. If you remember when Jonas Salk discovered the polio vaccine, you will recall what a revolutionary step that was, to be able to stop ravaging diseases before they hit their victims. It led to a whole new way of practicing medicine and paved the way for the vaccines and treatments that we take for granted today. I believe we are on the verge of a similar step, a new generation in medical research and treatment, thanks to the incredible potential of stem cells. Stem cell research--particularly, embryonic stem cell research--holds great promise. To quote Nobel Laureate Dr. Harold Varmus, ``The development of cell lines that may produce almost every tissue of the human body is an unprecedented scientific breakthrough. It is not too unrealistic to say that this research has the potential to revolutionize the practice of medicine and improve the quality and length of life.'' As Dr. Varmus noted, embryonic stem cells appear to have the amazing potential to transform themselves into any of the more than 200 types of cells that form the human body. These cells could be the key to understanding much about human health and disease and may yield new diagnostic tests, treatments, and cures for diseases such as diabetes, cancer, heart disease, Parkinson's, autoimmune diseases, and many, many others. Stem cell research could potentially be the scientific advance that takes the practice of medicine not just to the next level, but to five or ten levels above and beyond. Like my colleagues, I believe there is an urgent need for uniformity in the rules governing stem cell research in America. But let me just stress one aspect of that need: ethics. Without the National Institutes of Health setting the ethical guidelines for stem cell research, we invite a host of problems. Most of us feel strongly that human reproductive cloning is wrong, for example. But where should the lines be drawn with regard to embryonic stem cell research--particularly, somatic cell nuclear transfer and the use of cell lines derived from IVF embryos? The NIH is the obvious and crucial choice to help set the ethical boundaries. Our bill will ban outright any attempt at bringing to life a cloned human being. It will also prohibit research on any embryo created through somatic cell nuclear transfer beyond 14 days, require informed consent of donors, prohibit profiteering from donated eggs, and mandate separation of the egg collection site from the research laboratory. The NIH will help determine other suitable ethical guidelines in allowing this critical research to go forward with Federal funding and at federally-funded institutions. There is no question in my mind that, when they do, the rest of the world will follow. Now, the last time we introduced this bill, there was interest in the fact that I, as a strongly pro-life senator, would be the lead sponsor. I think we have put that issue behind us, as more pro-life lawmakers have expressed their support for this research. The fact is, I have never believed that life begins in a Petri dish. And as I travel across my home State of Utah, more and more Utahns, whether they are pro-life or not, come up to me and say, ``Orrin, we're with you on this. You're doing the right thing.'' That support is building across the country, and we must act. If we do not seize this opportunity, other countries could take the leading role in medicine's next great advance. We will lose the chance to set ethical guidelines, we will lose doctors to overseas research institutions, and most importantly, we will lose the chance to offer new hope to American and other patients who are waiting in desperation for treatments and cures. I urge the Senate to take up and pass this bill, and I look forward to the work ahead. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I am very pleased to join with Senators Feinstein, Specter, Kennedy, and Harkin to introduce the Human Cloning Ban and Stem Cell Research Protection Act of 2005. This bill could help usher in the next great era of medical treatment. At the same time, it will criminalize the offensive practice of reproductive cloning. If you remember when Jonas Salk discovered the polio vaccine, you will recall what a revolutionary step that was, to be able to stop ravaging diseases before they hit their victims. It led to a whole new way of practicing medicine and paved the way for the vaccines and treatments that we take for granted today. I believe we are on the verge of a similar step, a new generation in medical research and treatment, thanks to the incredible potential of stem cells. Stem cell research--particularly, embryonic stem cell research--holds great promise. To quote Nobel Laureate Dr. Harold Varmus, ``The development of cell lines that may produce almost every tissue of the human body is an unprecedented scientific breakthrough. It is not too unrealistic to say that this research has the potential to revolutionize the practice of medicine and improve the quality and length of life.'' As Dr. Varmus noted, embryonic stem cells appear to have the amazing potential to transform themselves into any of the more than 200 types of cells that form the human body. These cells could be the key to understanding much about human health and disease and may yield new diagnostic tests, treatments, and cures for diseases such as diabetes, cancer, heart disease, Parkinson's, autoimmune diseases, and many, many others. Stem cell research could potentially be the scientific advance that takes the practice of medicine not just to the next level, but to five or ten levels above and beyond. Like my colleagues, I believe there is an urgent need for uniformity in the rules governing stem cell research in America. But let me just stress one aspect of that need: ethics. Without the National Institutes of Health setting the ethical guidelines for stem cell research, we invite a host of problems. Most of us feel strongly that human reproductive cloning is wrong, for example. But where should the lines be drawn with regard to embryonic stem cell research--particularly, somatic cell nuclear transfer and the use of cell lines derived from IVF embryos? The NIH is the obvious and crucial choice to help set the ethical boundaries. Our bill will ban outright any attempt at bringing to life a cloned human being. It will also prohibit research on any embryo created through somatic cell nuclear transfer beyond 14 days, require informed consent of donors, prohibit profiteering from donated eggs, and mandate separation of the egg collection site from the research laboratory. The NIH will help determine other suitable ethical guidelines in allowing this critical research to go forward with Federal funding and at federally-funded institutions. There is no question in my mind that, when they do, the rest of the world will follow. Now, the last time we introduced this bill, there was interest in the fact that I, as a strongly pro-life senator, would be the lead sponsor. I think we have put that issue behind us, as more pro-life lawmakers have expressed their support for this research. The fact is, I have never believed that life begins in a Petri dish. And as I travel across my home State of Utah, more and more Utahns, whether they are pro-life or not, come up to me and say, ``Orrin, we're with you on this. You're doing the right thing.'' That support is building across the country, and we must act. If we do not seize this opportunity, other countries could take the leading role in medicine's next great advance. We will lose the chance to set ethical guidelines, we will lose doctors to overseas research institutions, and most importantly, we will lose the chance to offer new hope to American and other patients who are waiting in desperation for treatments and cures. I urge the Senate to take up and pass this bill, and I look forward to the work ahead. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, today I rise to give my enthusiastic vote of support for President Bush's nominee to be this Nation's first Director of National Intelligence. I have known Ambassador Negroponte for over 20 years, and his professional career as one of our Nation's best diplomats began 20 years earlier. And rarely have I voted in support of a Presidential nominee with greater confidence. I trust that my colleagues will lend their support unanimously to the President's selection for a position we are anxious to fill. As he assumes the position we created last year to unify the intelligence community's capabilities as they have never been unified before, I offer Ambassador Negroponte my complete support, with three points to consider. First, as I have told the nominee, this will be the most difficult job he will ever hold. And I say this to the man who has just returned from serving as our first ambassador to a liberated Iraq. During Ambassador Negroponte's nomination hearing two weeks ago, the distinguished chairman of the Senate Select Intelligence Committee, who also has my greatest respect, while reviewing the job requirements for the new position of DNI, candidly asked the nominee: ``Why would you want this job?'' The answer, for those who know him, is that Ambassador Negroponte has always responded to the call by his country to take on difficult challenges. And we in the Senate have supported him by confirming him, to date, seven times. Second, as I also told the nominee, and I have said to my colleagues: Osama bin Laden is not quaking in his hideaway because we have created the position of Director of National Intelligence. Let us be candid to ourselves about this. Too often in Washington, a bureaucratic response is mistaken for a solution. I hope we all recognize, after the years of discussing reform, that the legislation we passed last year initiates the beginning, not the end of reform. And this leads to my third point. Ambassador Negroponte's mission, once we confirm him, is to take the elements of the intelligence community and de-Balkanize them. His mission will be to create a whole that is greater than the sum of the intelligence community parts. He will do this by achieving what we call jointness between all parts of the community. When he does that--and this will have to do as much with creating new doctrine, and creating community culture that integrates this doctrine--then will our already impressive elements we have in our community be able to advance our security. Only then will we be creating the 21st century global intelligence capabilities that will make bin Laden's inevitable successors and wannabees sweat and run. In my conversations with Ambassador Negroponte about his new brief, I have shared some of my ideas with him, and I have found him to be welcoming of these and all ideas. He understands the problems we face, as he has been a consumer of intelligence for most of his career, and he has spent his last tour in Iraq confronting the challenge of multiple armed groups dedicated to collaborating against us. I believe he knows what we need, and I know he is determined to take the impressive technological and human capacities already in place in our intelligence community and take it to the level necessary to give the American public a strategic intelligence capability we need and must have. I believe Ambassador Negroponte has always served this country honorably. As we confirm him today, which I trust we will, I offer him my support and, once again, gratitude for choosing to serve his country in one of the most challenging positions in our history.

Mr. HATCH

Mr. HATCH. How much time remains?

Mr. HATCH. I ask unanimous consent I be permitted to finish my statement if it goes a little bit longer.

Mr. HATCH. Mr. President, in Lewis Carroll's book ``Through the Looking Glass,'' Humpty Dumpty has a famous exchange with Alice in which he says: When I use a word it means just what I choose it to mean-- neither more nor less. Many partisans in the debate over judicial nominations or appointments in the Senate and among interest groups, particularly, have the same attitude. Let me offer two examples. One is, they play games with the word ``filibuster.'' The current filibusters against judicial nominations have four features: First, they involve defeating attempts to end debate such as defeating a motion to invoke cloture under rule XXII; second, they target nominations with clear bipartisan majority support that would be approved if there were a confirmation vote; three, they are not about debating these nominations but about defeating them; and fourth, these filibusters are completely partisan, organized, and driven by party leaders. For 2 years, Democrats have claimed these filibusters are nothing new, that they happened before the 108th Congress. Last Friday, the distinguished assistant minority leader Senator Durbin offered his evidence. He printed in the Record a document titled ``History of Filibusters and Judges.'' It was a list of 12 judicial nominations which it said ``needed 60 (or more) votes--cloture--in order to end a filibuster.'' Yet these are filibusters only if, as Humpty Dumpty put it, the word filibuster means whatever you choose it to mean. Listed first is the 1881 nomination of Stanley Matthews to the Supreme Court. President Rutherford B. Hayes nominated Matthews shortly before leaving office and the Judiciary Committee postponed consideration. Hayes' successor, President James Garfield, renominated Matthews on March 14, 1881, and the Senate confirmed him on May 12. That is hardly a filibuster, yet that is the big news. They have looked so hard to try to find some justification for the inappropriate actions they have taken in the Senate. Two days ago, Senator Nelson of Florida repeated Senator Durbin's claim that this was the first judicial nomination filibuster in American history. That claim also appears on the Web site of the leftwing Alliance for Justice whose president is shopping it around on the talk radio circuit. This claim is incomprehensible. There was no cloture vote on the Matthews nomination for a very simple reason: Our cloture rule would not exist, would not even come into existence, for another 36 years. Nor were 60 votes needed even for confirmation since the Senate contained only 76 Members. If, as Senator Durbin apparently urges, we today use the Matthews nomination as a model, we would debate judicial nominations, including those resubmitted after a Presidential election, and then vote them up or down because that is what happened in the Matthews case they used as an example of a filibuster. Humpty Dumpty would be proud of them. The other nominations on Senator Durbin's list fare no better. Appeals court nominees Rosemary Barkett and Daniel Manion are on the filibuster list even though we did not take a cloture vote on them. Both of them were confirmed and currently sit on the bench. Eight others, including Republican nominee Edward Carnes and Democratic nominee Stephen Breyer, are on the list even though the Senate voted to invoke cloture on their nominations. The purpose was to get to the vote up and down. Abe Fortas is on the list even though his nomination was withdrawn after a failed cloture vote showed he did not have majority support and the opposition was solidly bipartisan--almost as many Democrats as there were Republicans. It was not an all-Democrat filibuster such as these have been. Here is the kicker: Eleven of the 112 nominees on Senator Durbin's filibuster list were confirmed by the Senate--all 11 of them--with 9 of them sitting on the Federal bench today. And as for Fortas, President Lyndon Johnson withdrew his nomination, not because there was a filibuster, because no less an authority than Robert Griffin, former Senator from Michigan, who had a reputation of impeccable honesty, has said that there was no filibuster. They had the votes to defeat Fortas up and down. They wanted 2 more days of debate so they could make the case better, but Fortas was going to be defeated up and down. So there was no filibuster there either. But even if there were, and even if you could stretch it and say there were, it was a bipartisan filibuster, if you could use the term filibuster, with almost as many Democrats as Republicans voting against Fortas. But I would take Senator Griffin's word on that, a man of impeccable honesty, who said there was no intent to filibuster by any Republican or Democrat on that nomination. None of these situations bears any resemblance to the filibuster of majority-supported judicial nominations underway today. Let me put this as clearly as I can. Not taking a cloture vote is no precedent for taking a cloture vote. Ending debate is no precedent for not ending debate. Confirming judicial nominations is no precedent for not confirming judicial nominations. And withdrawing nominations lacking majority support is no precedent for refusing to vote on nominations that have majority support. The second word they play on is ``extremists.'' Democrats and their leftwing interest group allies tell us they only use the filibuster against what they call extremist nominees. Trying to define this label, however, is like trying to nail Jell-O to a cactus in the Utah desert. Like the Constitution in the hand of an activist judge, it means whatever you want it to mean. No matter what the word means, this word extremist, Senators who truly believe a judicial nominee is an extremist may vote against him. They have a right to vote against anybody they think is an extremist. But this is no argument for refusing to vote in the first place. As our colleague Senator Kennedy said in February, 1998: We owe it to Americans across the country to give these nominees a vote. If our . . . colleagues don't like them, vote against them. But give them the vote. I wonder why the change today? I think he meant that statement back then. Why doesn't he mean it today? In September, 1999, the Judiciary Committee ranking member Senator Leahy similarly said our oath of office requires us to vote up or down on judicial nominations. Why the change today? It seems to me he meant it back then. Priscilla Owen, nominated by President Bush to the U.S. Court of Appeals for the Fifth Circuit, was reelected to the Texas Supreme Court in 2000, with 84 percent of the vote. There was no major party opposition, and the endorsement of every major newspaper in the State of Texas. Yet her opponents on the other side call her an extremist. No fewer than 15 presidents of the State bar of Texas, Democrats and Republicans, strongly endorse her nomination. Yet these opponents call her an extremist. She has been praised by groups such as the Texas Association of Defense Counsel and Legal Aid of Central Texas. Yet her opponents call her an extremist. The American Bar Association, often referred to by our friends on the other side as the ``gold standard'' to determine whether a person can sit on the bench, unanimously gave Justice Owen its highest rating of ``well qualified.'' This means she has outstanding legal ability and breadth of experience, the highest reputation for integrity, and such qualities as compassion, openmindedness, freedom from bias, and commitment to equal justice under law. Yet some of the very Democrats who once said the ABA rating was the gold standard for evaluating judicial nominees now call Justice Owen an extremist. Another nominee branded an extremist is California Supreme Court Justice Janice Rogers Brown, nominated to the U.S. Court of Appeals for the DC Circuit. She is the daughter of Alabama sharecroppers. She attended segregated schools before receiving her law degree from the University of California at Los Angeles--in other words, UCLA. She has spent a quarter century in public service, serving in all three branches of State government. Off the bench, she has given speeches in which she expressed certain ideas through vivid images, strong rhetoric, and provocative argument. Yet it is what she does on the bench that matters most, and there she has been an evenhanded, judicious, and impartial justice on the California Supreme Court. George Washington University law professor Jonathan Turley knows the difference and recently wrote in the Los Angeles Times: But however inflammatory her remarks outside the courtroom, Brown's legal opinions show a willingness to vote against conservative views, particularly in criminal cases, when justice demands it. In recent terms, Justice Brown has written more majority opinions than any of her colleagues on the California Supreme Court. Yet some in this body brand her an extremist. How can that be? Again, Humpty Dumpty would be proud of this type of misuse of words. A group of California law professors, including Democrats, Republicans, and Independents, wrote to our Judiciary Committee to say that Justice Brown's strongest credential is her openmindedness and thorough appraisal of legal argumentation ``even when her personal views conflict with those arguments.'' Yet some leftwing extremist groups call her an extremist. A diverse group of her current and former judicial colleagues wrote us that Justice Brown is ``a jurist who applies the law without favor, without bias, and with an even hand.'' It is no wonder that 76 percent of her fellow Californians voted to retain her in her State's highest court. Yet her opponents call her an extremist. If words mean anything, if we in the Senate really want to have a meaningful and responsible debate about such important things, then we should stop playing games with words such as ``filibuster'' or ``extremist.'' There is no precedent whatsoever for these partisan, organized filibusters intended to defeat majority supported judicial nominations and, I might add, bipartisan majority supported judicial nominations. If Senators believe such highly qualified nominees, who know the difference between personal and judicial opinions and are widely praised for their integrity and impartiality, are extremists, then they should vote against them. But these people should be given an opportunity by having an up-and-down vote. Let's have a full and fair debate. Perhaps the critics will win the day against one or more of these nominees. I doubt it. But we must vote. That is what advise and consent means. Mr. President, as I close, let me return to the 1881 Matthews nomination for a moment, the one they have had to stretch to try to claim was a filibuster. In the 47th Congress, a Senate equally divided between Republicans and Democrats confirmed Justice Matthews by a single vote. No doubt, some opponents called him many things, perhaps even an extremist. Well, I doubt that because that has not happened until President Bush became President, as far as I can see in the way it has happened here. But we settled the controversy surrounding the Matthews nomination the old- fashioned way--not by filibustering but by debating and voting up and down. There is no question we should return to that standard. I yield the floor. Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, it is with a sense of honor that my friend and colleague, Senator Feinstein, and I rise to introduce a bipartisan constitutional amendment that would allow Congress to prohibit the physical desecration of the American flag. I am proud and privileged to be working again with my California colleague on this important proposal. Among our principal cosponsors are our colleagues Senator Thune and Senator Talent. It is heartening to us to see some of the Senate's newest Members come to this issue with the same passion that its original supporters still feel. This amendment is truly bipartisan. Today, we count 51 original cosponsors of this resolution. And, nearly two-thirds of the Members of this body have indicated their support. Those numbers seem to grow with each passing year. No doubt, some will still argue that this amendment is unnecessary. Fortunately, that refrain is gradually losing its punch. When this amendment eventually passes the Senate, as I believe that it will, our victory will not be attributed to the passions of the moment. Rather, it will be due to the tireless efforts of citizens committed to convincing their elected representatives that this amendment matters. I have heard from some Utahans who love our country's flag but are opposed to amending the Constitution. To them I would say, amending the Constitution should never be taken lightly. Yet after serious study of the issue, I have concluded there is no other way to guarantee that our flag is protected, as I will discuss in a few minutes. And, indeed, guaranteeing the physical integrity of the flag is a cause worth fighting for. The American people seem to understand what the opponents of this amendment fail to grasp. This amendment is a necessary statement that citizens still have some control over the destiny of this Nation and in maintaining the traditions and symbols that have helped to bind us together in all our diversity for over 200 years. Those who oppose protecting the flag through a constitutional amendment are probably not aware of our constitutional history. Indeed, for most of America's history, our Nation's laws guaranteed the physical integrity of the American flag. These were laws no one questioned. No one every questioned that the simple act of providing legal protection for the flag, a unique symbol of our ties as a Nation, could somehow violate the Constitution. We should take a moment and recall what we were taught about the flag as schoolchildren. Our flag's 13 stripes show our origins. We started as 13 separate colonies that first became separate States and then one Nation through the Declaration of Independence and the American Revolution. The 50 stars on the field of blue represent what we have become: a Nation unified. And over the past 230 years, we have become ever more united in our commitment to the extension of liberty and equality. Among all of our differences, differences frequently reflected in this body, we do remain one Nation undivided and indivisible, and our flag is a simple but profound statement of that union. That is why we open the Senate each day by pledging our allegiance to the flag. It is a reminder of all that we have in common. Supreme Court Justice John Paul Stevens understood the significance of the flag's status when he wrote: A country's flag is a symbol of more than nationhood and national unity. It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas . . . So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of a nation that transformed 13 fledgling colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations. There is a certain wisdom to Justice Stevens' statement that our constituents immediately grasp. Some polls show that over 80 percent of the American people support an amendment to protect the flag. Its unique character is represented in the diversity of the groups that have worked over the years to bring this amendment to fruition. Veterans, police, African Americans, Polish Americans, farmers, and so many more diverse groups see in the flag a symbol of our Nation; they understand that it is perfectly consistent with our constitutional traditions for us to protect it. Unfortunately, in 1989 the Supreme Court intervened and ovrrode every State law barring desecration of the American flag. None of these States has restricted first amendment political speech in any way. Their laws did not lead us down some slippery slope that would result in restraints on political opinions. These States drew reasonable distinctions between political speech and inflammatory and frequently violent acts. Yet in Texas v. Johnson, the Supreme Court held that a Texas statute, and others like it, that barred desecration of the American flag, violated core first amendment principles. That certainly would have been news to those who wrote the Constitution and our Bill of Rights. It was news, bad news, to the American people as well. So in response to this imprudent decision, the Senate acted quickly and passed The Flag Protection Act. It became law on October 28, 1989. Then, in 1990, the Court struck down even this legislation in United States v. Eichman. And that is why a constitutional amendment has become necessary. With due respect to our courts, and to my colleagues who continue to support these decisions, these legal arguments against flag protection just do not hold water. Detractors of our amendment contend that the first amendment guarantees the right to burn the American flag. It does no such thing. They contend it would carve out an exception to the first amendment as some say. It would not. Rather, it would reaffirm what was understood not only by those who ratified the Constitution but also by citizens of today: that the first amendment never guaranteed such expressive conduct. Whether one is an originalist or whether one believes in a living Constitution, this argument falls short. The American people have long distinguished between the first amendment's guarantee of an individual's right to speak his or her mind and the repulsive expression of desecrating the flag. For many years, the people's elected representatives in Congress and 49 State legislatures passed statutes prohibiting physical desecration of the flag, and our political speech thrived. It was just as robust as it is today. Yet in 1989, the Supreme Court's novel interpretation of the first amendment concluded that the people, their elected legislators, and the courts are no longer capable of making these reasonable distinctions, distinctions that we frequently make in this body such as when we prohibit speeches or demonstrations of any kind, even in the silent display of signs or banners, in the public galleries. The American people created the Constitution, and they reserved to themselves the right to amend the Constitution when they saw fit. Is it wrong to give the American people the opportunity to review whether the Supreme Court got it right in this case? I think not. The fact is, a Senator does not take an oath to support and defend the holdings of the Supreme Court. We take an oath to support the Constitution. And, it is entirely appropriate that when we think the Court gets it wrong, we correct it through proper constitutional devices, devices set out in the Constitution itself . . . Though it has been forgotten over the years, this is hardly a radical idea. It was one supported by the founders of both the Republican and Democratic parties, Thomas Jefferson and Abraham Lincoln. As some in this body have noted, our courts are now frequently attempting to identify a national consensus to justify contemporary interpretations of our constitutional guarantees. The progress of this amendment to protect the flag demonstrates to me at least just how such a consensus is supposed to develop. Through argument, through give and take, through debate--over time the American people, as reflected in the actions of their representatives, have become more sure than ever that they should have the opportunity to protect their flag through moderate and reasonable legislation. After September 11, citizens proudly flew the flag, defying the terrorist challenge to our core values of liberty and equality, and confirming its unique status as a symbol of our nation's strength and purpose. In the struggle that has followed, our flag stands as a reminder of the many personal sacrifices made to protect and strengthen our nation. And so, to protect this symbol, I am today introducing this amendment. I thank my colleagues, Senators Feinstein, Thune, and Talent for their work on this. I urge those who are not cosponsors of this amendment to keep an open mind as we debate this resolution. It is my hope that the Judiciary committee will move the resolution to the floor. And, in turn, I ask that our leadership ensure this resolution gets a vote on the floor.

Mr. HATCH

Mr. HATCH. Mr. President, it is with a sense of honor that my friend and colleague, Senator Feinstein, and I rise to introduce a bipartisan constitutional amendment that would allow Congress to prohibit the physical desecration of the American flag. I am proud and privileged to be working again with my California colleague on this important proposal. Among our principal cosponsors are our colleagues Senator Thune and Senator Talent. It is heartening to us to see some of the Senate's newest Members come to this issue with the same passion that its original supporters still feel. This amendment is truly bipartisan. Today, we count 51 original cosponsors of this resolution. And, nearly two-thirds of the Members of this body have indicated their support. Those numbers seem to grow with each passing year. No doubt, some will still argue that this amendment is unnecessary. Fortunately, that refrain is gradually losing its punch. When this amendment eventually passes the Senate, as I believe that it will, our victory will not be attributed to the passions of the moment. Rather, it will be due to the tireless efforts of citizens committed to convincing their elected representatives that this amendment matters. I have heard from some Utahans who love our country's flag but are opposed to amending the Constitution. To them I would say, amending the Constitution should never be taken lightly. Yet after serious study of the issue, I have concluded there is no other way to guarantee that our flag is protected, as I will discuss in a few minutes. And, indeed, guaranteeing the physical integrity of the flag is a cause worth fighting for. The American people seem to understand what the opponents of this amendment fail to grasp. This amendment is a necessary statement that citizens still have some control over the destiny of this Nation and in maintaining the traditions and symbols that have helped to bind us together in all our diversity for over 200 years. Those who oppose protecting the flag through a constitutional amendment are probably not aware of our constitutional history. Indeed, for most of America's history, our Nation's laws guaranteed the physical integrity of the American flag. These were laws no one questioned. No one every questioned that the simple act of providing legal protection for the flag, a unique symbol of our ties as a Nation, could somehow violate the Constitution. We should take a moment and recall what we were taught about the flag as schoolchildren. Our flag's 13 stripes show our origins. We started as 13 separate colonies that first became separate States and then one Nation through the Declaration of Independence and the American Revolution. The 50 stars on the field of blue represent what we have become: a Nation unified. And over the past 230 years, we have become ever more united in our commitment to the extension of liberty and equality. Among all of our differences, differences frequently reflected in this body, we do remain one Nation undivided and indivisible, and our flag is a simple but profound statement of that union. That is why we open the Senate each day by pledging our allegiance to the flag. It is a reminder of all that we have in common. Supreme Court Justice John Paul Stevens understood the significance of the flag's status when he wrote: A country's flag is a symbol of more than nationhood and national unity. It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas . . . So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of a nation that transformed 13 fledgling colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations. There is a certain wisdom to Justice Stevens' statement that our constituents immediately grasp. Some polls show that over 80 percent of the American people support an amendment to protect the flag. Its unique character is represented in the diversity of the groups that have worked over the years to bring this amendment to fruition. Veterans, police, African Americans, Polish Americans, farmers, and so many more diverse groups see in the flag a symbol of our Nation; they understand that it is perfectly consistent with our constitutional traditions for us to protect it. Unfortunately, in 1989 the Supreme Court intervened and ovrrode every State law barring desecration of the American flag. None of these States has restricted first amendment political speech in any way. Their laws did not lead us down some slippery slope that would result in restraints on political opinions. These States drew reasonable distinctions between political speech and inflammatory and frequently violent acts. Yet in Texas v. Johnson, the Supreme Court held that a Texas statute, and others like it, that barred desecration of the American flag, violated core first amendment principles. That certainly would have been news to those who wrote the Constitution and our Bill of Rights. It was news, bad news, to the American people as well. So in response to this imprudent decision, the Senate acted quickly and passed The Flag Protection Act. It became law on October 28, 1989. Then, in 1990, the Court struck down even this legislation in United States v. Eichman. And that is why a constitutional amendment has become necessary. With due respect to our courts, and to my colleagues who continue to support these decisions, these legal arguments against flag protection just do not hold water. Detractors of our amendment contend that the first amendment guarantees the right to burn the American flag. It does no such thing. They contend it would carve out an exception to the first amendment as some say. It would not. Rather, it would reaffirm what was understood not only by those who ratified the Constitution but also by citizens of today: that the first amendment never guaranteed such expressive conduct. Whether one is an originalist or whether one believes in a living Constitution, this argument falls short. The American people have long distinguished between the first amendment's guarantee of an individual's right to speak his or her mind and the repulsive expression of desecrating the flag. For many years, the people's elected representatives in Congress and 49 State legislatures passed statutes prohibiting physical desecration of the flag, and our political speech thrived. It was just as robust as it is today. Yet in 1989, the Supreme Court's novel interpretation of the first amendment concluded that the people, their elected legislators, and the courts are no longer capable of making these reasonable distinctions, distinctions that we frequently make in this body such as when we prohibit speeches or demonstrations of any kind, even in the silent display of signs or banners, in the public galleries. The American people created the Constitution, and they reserved to themselves the right to amend the Constitution when they saw fit. Is it wrong to give the American people the opportunity to review whether the Supreme Court got it right in this case? I think not. The fact is, a Senator does not take an oath to support and defend the holdings of the Supreme Court. We take an oath to support the Constitution. And, it is entirely appropriate that when we think the Court gets it wrong, we correct it through proper constitutional devices, devices set out in the Constitution itself . . . Though it has been forgotten over the years, this is hardly a radical idea. It was one supported by the founders of both the Republican and Democratic parties, Thomas Jefferson and Abraham Lincoln. As some in this body have noted, our courts are now frequently attempting to identify a national consensus to justify contemporary interpretations of our constitutional guarantees. The progress of this amendment to protect the flag demonstrates to me at least just how such a consensus is supposed to develop. Through argument, through give and take, through debate--over time the American people, as reflected in the actions of their representatives, have become more sure than ever that they should have the opportunity to protect their flag through moderate and reasonable legislation. After September 11, citizens proudly flew the flag, defying the terrorist challenge to our core values of liberty and equality, and confirming its unique status as a symbol of our nation's strength and purpose. In the struggle that has followed, our flag stands as a reminder of the many personal sacrifices made to protect and strengthen our nation. And so, to protect this symbol, I am today introducing this amendment. I thank my colleagues, Senators Feinstein, Thune, and Talent for their work on this. I urge those who are not cosponsors of this amendment to keep an open mind as we debate this resolution. It is my hope that the Judiciary committee will move the resolution to the floor. And, in turn, I ask that our leadership ensure this resolution gets a vote on the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to join Senator Inouye in introducing ``The Wakefield Act'', which reauthorizes the Emergency Medical Services for Children (EMSC) program. It has been 20 years since Senator Inouye and I first worked for passage of the original bill authorizing the EMSC program. We embarked upon this partnership after realizing that there was a critical gap in our Nation's ability to provide emergency medical services for the most precious segment of our population: our children. Since the Emergency Medical Services for Children Act was first passed, its programs have spread across the nation, enhancing the care received in the more than 31 million visits made by children and adolescents to our nation's emergency departments every year. In part due to this program, the pediatric death rate from injuries has fallen 40 percent over the last 20 years. Imagine that--40 percent! In that light, it is extremely disappointing that President Bush would recommend eliminating funding for this very important program. More than 30 groups have endorsed this legislation, including the American Academy of Pediatrics, American College of Emergency Physicians, American College of Surgeons, Brain Injury Association of America, Emergency Nurses Association, Family Violence Prevention Fund, National Association of Children's Hospitals, National Association of Emergency Medical Technicians, Rural Metro Corporation, Society for Pediatric Research, and the Society of Critical Care Medicine. While much has been accomplished, more remains to be done. Children's physiology and response to illness and injury differ significantly from those of adults, necessitating specialized training to recognize and treat these patients properly. Ninety percent of the children who require emergency care receive it in general hospitals, not in free-standing specialty children's hospitals. Of those hospitals that lack pediatric intensive care units, only 47 percent have appropriate written transfer agreements with hospitals that do have such specialized units. One- third of states do not have a physician available on-call 24 hours to provide medical direction to EMTs or other non-physician emergency care providers. Of those states that do, many do not have full state coverage. It is clear that despite the progress made since the Emergency Medical Services for Children Act was first enacted, deficiencies in our pediatric emergency care system remain. What is more, the need for a strong and healthy population, as well as a robust, prepared, and responsive health care system, has never been greater. This cannot occur in the absence of an emergency medical structure that is fully trained and ready to care for our nation's youth. The Wakefield Act fills this role by supporting states' efforts to improve the care of children within their emergency medical services systems. EMSC-supported projects include strengthening emergency care infrastructures, assessing local provider needs, and developing comprehensive education and training modules. The impact of this program is undeniable: in 2003, 78 percent of States reported that either all or some of their pediatric emergency training programs were dependent on EMSC grant funding. The EMSC program also ensures timely distribution of best practices and lessons learned in the area of pediatric emergency care, as well as facilitating the sharing of innovations through its national resource center. Furthermore, EMSC-supported projects have a proven record of success at the State and local level. For example, in 1997, no State disaster plan had specific pediatric components, but by 2003, 13 EMSC projects were working actively with their State's disaster preparedness offices to address children's needs in the event of a disaster. I am proud that my home State of Utah has played a vital role in advancing the level of emergency medical care for children and teenagers. Working with the Emergency Medical Services for Children program, Utah has participated in the Intermountain Regional Emergency Medical Services for Children Coordinating Council. The University of Utah is home to both the National Emergency Medical Services for Children Data Analysis Resource Center and the Central Data Management Coordinating Center for the Pediatric Emergency Care Applied Research Network. Utah-based projects also helped pioneer the development of training materials on caring for special needs pediatric patients. Over the course of its 20 year history, the Emergency Medical Services for Children program has made great strides in improving the lives of our Nation's children. It has largely eliminated discrepancies in regulations among States, establishing a national norm and making children's issues in emergency medical care a priority. The national EMSC program is a dynamic and flexible program that has proved to be responsive to both the Nation's and the individual States' needs. The program has funded pediatric emergency care improvement initiatives in every State, territory and the District of Columbia, as well as national improvement programs. I urge my colleagues to support this important and necessary legislation.

Mr. HATCH

Mr. HATCH. Mr. President, when Pope John Paul II died over the weekend, the Catholic Church lost its spiritual shepherd. The world lost a giant of a man. As successor of St. Peter, he began his papacy by reminding the world to ``Be not afraid.'' The captive people of Eastern Europe and Latin America heard that message loud and clear. And as he prepared for his own death, he met his suffering with a fearlessness and hopefulness that was heard by us all. For millions of American Catholics, including many Utahns, and many of my colleagues in this body, Pope John Paul II's passing represents the loss of a profound spiritual leader. My prayers are with all of you and with the Pope. For non-Catholics like myself the Pope's death is a cause for mourning as well. His was an example of strength, commitment, and moral courage that we will all miss and that we will never forget. The Communist tyranny that the Pope ultimately triumphed over once mocked the power of the Catholic Church, asking how many divisions the Pope had. While it is true that the Pope possessed no military might, his witness to hope, his faith that life would triumph over death, that the light would prevail over the darkness, was more powerful than any army. As a result of his simple faith, this humble man from Krakow, Poland emerged from behind the Iron Curtain, became the first non-Italian Pope in nearly 500 years, and concluded his life as one of the towering figures of the Twentieth Century. I have no doubt that his example will guide us in the Twenty-first Century as well, and I understand why it is that so many Catholics are already referring to him as John Paul the Great. My career as a public servant began shortly before John Paul II became Pope. I am fortunate to have spent time with him on two occasions over the years, and so it was no surprise to me to watch the world's and this country's admiration and love for him grow. I was struck by his joyful and his charitable spirit. Yet behind that peaceful demeanor was a determination to challenge the totalitarian assaults on human dignity that stained much of the last century. As a young man he was witness to the Nazi terror in his native Poland, and later as Pope he went to Poland and encouraged the Solidarity movement. He understood that all persons are created in the image and likeness of God and that no matter how small, old or weak, no person is without significance. I have no doubt that his powerful witness to the dignity of all people contributed as much to the downfall of the horror of communism as anything we accomplished in Washington. A year after he assumed the papacy, John Paul II went to Poland and awakened a sleeping giant. Today, I hear that over a million thankful Poles are en route to Rome to pay their respects to their native son. As the Pope grew older and he lost his youthful vigor, his own suffering served as a powerful reminder of the need to nurture a culture of life. Catholics and non-Catholics alike have heard this call. As President Bush put it the other day, it remains the duty of the strong to protect the weak. It only took about twenty-four hours before some commentators came out to declare the Pope's legacy a mixed one. The Pope was too strident on certain issues, they say. He left certain groups unsatisfied. Perhaps. But I think that these criticisms really miss what this man was about. John Paul II reminded us of the meaning that our human lives can have. This truth is not something that you can focus group. The truth about the universe, about our duty to God and to our fellow man, is not something that you can triangulate. Still, some fault the Pope for not being more like a politician. He was not accommodating enough. He should have compromised and found a middle ground. As elected officials, that is our charge. But as the spiritual head of the Catholic Church, the Pope's duty was greater than what we work to accomplish. He was a witness to truth. His message was not always one that people on either side of the aisle wanted to hear, but the call to the faithful is not often an easy one to swallow. The Pope reminded us of the splendor of truth. I think what is revealed in these criticisms of the Pope is the knee-jerk aversion by some to the very idea that there are eternal truths. The Pope should be commended, not criticized, for reminding us of them. The talking heads have this exactly backward. They think that it was the Pope who was inconsistent because he was not easily labeled as politically liberal or conservative. It never occurs to them that it is we who are conflicted; that our divisions are something to be overcome. The Pope spoke to what Abraham Lincoln called the better angels of our nature. He was not someone seeking political advantage or gain. He sought peace and unity, and nowhere was this more clear than in his historic outreach to non-Catholic Christians, to the Jewish people, and to moderate Muslims. Our commentators might not get this, but the world's people certainly do. As is clear from the different languages one hears in Rome as people wait to file past the Pope, this was a man who belonged to the world. And the Pope's trips to this country will never be forgotten. People in this country stood in the rain to attend papal masses in Boston and Miami, New Orleans and New York. Youth from around the world came to celebrate with him in Denver. Though this was a man with a universal message, I think that he had a certain American spirit as well. He was a kindred spirit. His faith in the future, and in the inherent dignity of man, made him at home with the American people, and it is appropriate that this nation, which was blessed with his visits on numerous occasions, will be flying its flags at half staff until his interment on Friday. This weekend the Catholic Church lost its shepherd. For over a quarter of a century, Pope John Paul II watched over his flock. With his death this weekend, I am sure that there are some who feel lost, but they should not forget the Pope's reminder: ``Be not afraid.'' When he reminded his native Poles of this, they changed the course of history. In his passing we should take heed as well. We will miss him, and we will mourn, but we have faith that he is now at peace and at one with his Lord.