Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that at 12:30, the Senate resume debate on the Feingold amendment, and that the time be equally divided in the usual form; provided that at 12:40, 10 minutes later, the Senate proceed to a vote in relation to the Feingold amendment, with no intervening action or debate and no amendments in order to the amendment prior to the vote. I further ask consent that following that vote, debate be equally divided between the two leaders or their designees until the hour of 3 p.m.; provided further that the time between 2:20 and 2:40 be equally divided between Senator Specter and Senator Leahy; and that at 2:40, the final 20 minutes be reserved, with the Democratic leader in control of 10 minutes, to be followed by the majority leader for the final 10 minutes; provided further that at 3 o'clock, the Senate proceed to a vote in relation to the Durbin amendment, with no amendment in order to the amendment prior to the vote. I further ask unanimous consent that following that vote the bill be read the third time and the Senate proceed to a vote on passage of the bill, with no intervening action or debate. Finally, I ask that no other amendments be in order other than the two above-mentioned amendments.

Mr. HATCH. Mr. President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on February 10, 2005, at 9:30 a.m., in open session to receive testimony on the defense authorization request for fiscal year 2006 and the future years defense program.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on February 10, 2005, at 10:00 a.m., to conduct a hearing on ``The Role of the Government-Sponsored Enterprises in the Mortgage Market.''

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Thursday, February 10, 2005, at 9:30 a.m., to hold a hearing on the Tsunami.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on Thursday, February 10, 2005 at 10:15 a.m. on ``Bankruptcy Reform.'' The hearing will take place in the Dirksen Senate Office Building Room 226. Witness List Mr. Kenneth Beine, President & CEO, Shoreline Credit Union, Two Rivers, WI; Mr. Malcom Bennett, President, International Realty & Investments, Inc., Los Angeles, CA; Mr. Dave McCall, Director, District 1, United Steel Workers of America, AFL-CIO, Columbus, OH; Mr. R. Michael Stewart Menzies, Sr., President & CEO, East Bank and Trust Company, Easton, MD; Mr. Philip Strauss, Retired Attorney, Family Support Bureau in the Office, District Attorney Office in San Francisco, on behalf of the National Child Support Enforcement Association, San Francisco, CA; Ms. Maria Vullo, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY; Prof. Elizabeth Warren, Leo Gottlieb Professor of Law, Harvard Law School, Cambridge, MA; and Prof. Todd J. Zywicki, Visiting Professor of Law, Georgetown University Law Center, Washington, DC. Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia

Mr. HATCH. Mr. President, I ask unanimous consent that the Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia be authorized to meet on Thursday, February 10, 2005 at 10:00 a.m. for a hearing entitled, ``Unlocking the Potential within Homeland Security; the New Human Resources System.''

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 February 10, 2005 at 2:30 p.m. to hold a closed meeting.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in opposition to the amendment offered by my colleague from Arkansas. At best, this amendment is unnecessary. At worst, it will create a loophole that some enterprising plaintiffs' lawyers will surely manipulate in order to keep their lucrative class action lawsuits in State court. Before I go into more details about the problems with the amendment, I would like to point out that the National Association of Attorneys General does not endorse this measure, nor has it pushed for its inclusion in the class action bill. One would expect that if the current bill somehow impairs the ability of State attorneys general to bring lawsuits on behalf of their citizens, we would have a position from them by now. But we do not, and the association's silence speaks volumes about the merits of this amendment. Let me first note that this amendment, which excludes from the scope of this legislation any ``civil action brought by or on behalf of, the Attorney General of any State,'' is unnecessary. Let me explain why. State attorneys general have authority under the laws of every State in this country to bring enforcement actions to protect their citizens. These suits, known commonly as parens patriae cases, are similar to class actions to the extent that the attorney general represents a large group of people. But let me be perfectly clear that they are not class actions. There is no certification process, there are no representative class members named in the complaint, and plaintiffs' attorneys who stand to gain millions of dollars in fees. Rather, they are unique lawsuits authorized under State constitutions or State statutes that are brought on behalf of the citizenry of a particular State. These actions are brought typically in consumer protection matters under State law and usually involve local disputes. As such, S. 5 in no way affects these lawsuits. To underscore, I direct my colleagues to section 1711(2) of the bill which explicitly defines a ``class action'' to mean any civil action filed in a district court of the United States under rule 23 of the Federal Rules of Civil Procedure, or any civil action that is removed to a district court of the United States that was originally filed under a State or rule of judicial procedure authorizing an action to be brought by one or more representatives as a class action. This statutory definition makes it perfectly clear that the bill applies only to class actions, and not parens patriae actions. Class actions being those lawsuits filed in Federal district court under rule 23 of the Federal rules of civil procedure or lawsuits brought in State court as a class action. Neither of these conditions are met when compared to the nature of a parens patriae action, and consequently, are excluded from the reach of this bill. What I think the proponents of this amendment are really concerned about is the impact of this bill on State attorneys general if they choose to pursue an action other than a parens patriae action. But this possibility does not make this amendment necessary. First, attorneys general are not required to use class actions to enforce their State laws and protect their citizens. To the contrary, their main weapon has been, and continues to be, the parens patriae action authorized under State statute. Second, this legislation has been carefully crafted to distinguish between truly local suits and those that involve national issues. Thus, if an attorney general brings a class action, and that class action involves matters of truly local concern, it will certainly fall under one of the bill's exceptions. On the other hand, if the lawsuit is aimed at an out-of-State corporation for conduct that affects citizens in multiple States, or if the lawsuit is interstate in nature, then that suit should be removed to Federal court. Removal of such a case is particularly appropriate because there would likely be similar suits brought in a number of courts, and one of the central purposes of this legislation is to promote judicial efficiency and fairness by allowing copy-cat class actions to be coordinated in one Federal proceeding. As I noted earlier, this amendment is not only unnecessary, it actually creates opportunities for gaming. If this legislation enables State attorneys general to keep all class actions in State court, it will not take long for plaintiffs' lawyers to figure out that all they need to do to avoid the impact of S. 5 is to persuade a State attorney general to simply lend the name of his or her office to a private class action. In other words, plaintiffs' lawyers will try to keep interstate class actions in State court by simply naming that State's attorney general at the end of complaint as a cocounsel or of-counsel. Undoubtedly, we will see arguments that if an attorney general merely sends in a letter saying that he/she is sympathetic 10 the action, the lawsuit will be exempt from the bill's provisions. I think this is the very type of forum shopping that S. 5 is supposed to eliminate and we should not be encouraging it now. Indeed, to give the potential gaming some real life perspective, I direct your attention, Mr. President, to an article from the Boston Globe which reports that the Massachusetts attorney general had made arrangements with private plaintiffs' attorneys to prosecute a consumer-oriented class action against the drug store chain Walgreens. Under the arrangement, the plaintiffs lawyers pocketed hefty fees while the state AG's office received a portion of the settlement money. But the article reports that this privatization arrangement has drawn criticism because the settlement did very little to benefit consumers. The article reports that too little of the settlement money actually went to consumers, but rather to groups such as Public Citizen, the American Lung Association, and Massachusetts Bar Association. Perhaps more troubling about the article is the alleged campaign contribution ties between the private attorneys who prosecuted these cases and the State attorney general office. Given the close ties between this State AG and private attorneys, I find that this amendment will only encourage these types of arrangements in the future that do not benefit consumers. We do not want to risk creating a situation in which State attorneys general can be used as pawns so that class action lawyers can remain in one of their magic jurisdictions and avoid the import of this bill. S. 5 would put an end to class action reform without diminishing in any way the ability of State attorneys general to discharge their duty to protect their citizens--and to do so in State court. I urge my colleagues to vote against this amendment.

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

Mr. HATCH. Mr. President, I would like to take a moment to demonstrate just how out of balance the class action has become and to underscore why we need to get this bill passed. Before I do, I want to make it clear that I do not object to class lawsuits. Legitimate class action lawsuits are helpful, when they are legitimate, when there is a good cause of action, when people really have been abused. Legitimate cause of actions do not have to seek out these favorable jurisdictions where the law is stacked against the defendants, which is what this bill helps to cure. When they are legitimate and brought in the best interest of the class members, class action lawsuits are a vital part of our judicial system. They can serve as a means to ensure that injured parties who might otherwise go unrepresented have the opportunity to have their injuries redressed. However, in recent years we have witnessed a disturbing trend where some lawyers are bringing and settling class action lawsuits in which the chief interests actually being served appear to be those of the lawyers and not the people for whom they are bringing the actions. Too often the plaintiffs' attorneys recover millions of dollars in attorney's fees while the class action members get little more than a coupon, if that. While we must acknowledge that there have been a few isolated instances of abusive settlements in the Federal courts, these are the rare exception. By contrast, numerous examples of abusive class action settlements originate from the State courts. As we have noted in the Judiciary Committee report in the 108th Congress, the Class Action Fairness Act is a ``modest, balanced bill to address some of the most egregious problems in class action practice.'' It is not, however ``intended to be a panacea that will correct all class action abuses.'' This bill is the result of intense bipartisan negotiations and is our best effort to address a problem that is pervading our State court system. Abuse of the class action system has reached a critical point, and it is time that we as a legislative body address the problem. The public is increasingly aware of the system's unfairness. News programs, such as ABC's ``20/20,'' have covered the rise in class action jurisdictions in certain magnet jurisdictions, magnet meaning jurisdictions where these extortionate suits are brought because they can get a tremendous advantage regardless of whether they are right or wrong. Scores of editorials have called for actions in newspapers all across this country. Abuse of the class action system has even become the inspiration for popular literature. In 2003, the author, John Grisham, released a book entitled ``The King of Torts.'' Grisham's novel takes its reader into the world of the mass tort/class action lawyer where clients are treated like chattel and bargaining chips. The value of a potential action is not measured by the merit of the claim but on the number of class members that can be rounded up. The end game is not the pursuit of justice for the class members and clients, but in the pursuit of a hefty attorney's fee. Although Grisham's book is intended as fiction, it is hard to distinguish it from the facts of our broken class action system. Let me read a few passages: Nobody earns ten million dollars in six months. . . . You might win it, steal it, or have it drop out of the sky, but nobody earns money like that. It's ridiculous and obscene. Now this quote may come from a fictional story, but it is too often too close to the truth. This short novel written by Grisham demonstrates the problems with our class action system all too well. As his book shows, with drug manufacturers the sad but inevitable fact is that people are injured every day in this country by products they buy, and justice does require that they receive just compensation for their injuries. Frequently, class actions are the best way to compensate large groups of injured consumers. Yet, Grisham's novel, ``The King of Torts,'' also shows that the financial reward of a settlement is so great that the class action system has attracted a small group of unscrupulous lawyers who will do anything, say anything, and sue anything or anybody--not to help their clients but to line their own pockets. We keep hearing this is not a crisis, that not everyone is gaming the system. Everyone in this body knows, however, that a few bad apples can spoil the bunch. In this case, these few lawyers are hurting our civil justice system. This reform is one small step toward restoring some balance to that system. What I have read in this work of fiction is too often fact today. Everybody knows it. Without question, many of today's class actions are nothing more than business opportunities for some lawyers to strike it rich and too often they have little, if anything, to do with fairly compensating the injured class members. Some law firms make no secret of this. One law firm actually states on its Web site that it has brought over 24 nationwide class actions in Madison County, IL, a court notorious for approving settlements that benefit the lawyers, and that it specializes in class actions that seek less than $500 in damages for class members. Plaintiffs beware. I am told, for example, of a law firm that explicitly acknowledges that the more potential class members there are to a claim, the more the case is worth their while. Specifically, the ``frequently asked questions'' section of their firm's Web site states: More claimants means greater potential liability for defendants. Because there is greater potential liability, these lawsuits become worthwhile for lawyers to prosecute on a contingent-fee basis. Worthwhile, indeed. Worthwhile for the lawyers. A small handful of wealthy lawyers is profiting from the class action system. According to an article appearing in the 2001-2002 edition of the Harvard Journal of Law and Public Policy five firms accounted for nearly half of the class action lawsuits filed in Madison County, IL, and Jefferson County, TX. Of the lawsuits filed in these districts, many allege the same causes of action, represent the same class of plaintiffs that are brought against many of the same parties within an industry. While these lawyers might have something to gain, the same cannot clearly be said with respect to plaintiffs, consumers, and those employed by defendant companies, who lose their jobs as a result of these types of lawsuits. It is evident that a few key courts have been singled out by a small group of legal players in the class action world. This point is reinforced by a 2003 study conducted by the Institute for Civil Justice/RAND and funded jointly by the plaintiffs and defense bar to determine who gets the money in class action settlements. The study found that in State court consumer class settlements, it is the class counsel and not their clients who often walk away with a disproportionate share of the settlement. What do their clients get? Well, quite simply, not enough. I believe that the many hard-working and honest class action lawyers should be compensated for their hard work and efforts. The overwhelming number of lawyers are honorable people. They are honest. They are hard working. Only a few are causing the lion's share of trouble. The majority of the honest ones are not searching for jackpot jurisdictions where the judges and the lawyers are in cahoots and somehow always find against the defendants. I also believe such compensation should be reconcilable with a fair recovery for the client. I have supported large recovery for trial lawyers when I thought it was justified. Quite honestly, it is simply not right when our judicial system allows lawyers to walk away with millions of dollars while in some cases their clients walk away with nothing more than a coupon good toward a future purchase of the very product that was the subject matter of the class action to begin with. I do not know about my colleagues, but when I have a problem with a product, sometimes the last thing I want to do is buy that product or have anything to do with the company or firm that makes that particular product. Frankly, keep your coupon and show me the money. If the coupons were so good, one would expect the lawyers would request that they be paid in coupons, not money. In real life, we are too often reminded of the legendary fictional case Jarndyce v. Jarndyce of Charles Dickens' ``Bleak House'' in which legal fees ate up the whole estate so that the intended beneficiaries could not benefit. Consider the case of Degradi v. KB Holdings, Inc., in Cook County, IL. The suit alleged that KB Toys, one of the Nation's largest toy retailers, engaged in deceptive pricing practices in some of their products. Specifically, the suit alleged that the prices of certain products were marked to appear reduced when in fact the apparently reduced price was the market price. In the settlement with KB Toys over these allegedly deceptive pricing practices, the toy store paid attorney's fees and costs of $1 million and not one dime of cash to class members. As part of the settlement, the store held an unadvertised 30-percent-off sale on selected products. That is laughable. Under the terms of the settlement agreement, the toy retailer agreed to offer a 30-percent discount on selected products between October 8 and October 14, 2003. In other words, they held a week-long sale that was not even publicly advertised. By the time most of the class members learned about the sale, their opportunity to recover under the terms of the settlement had passed. In fact, an independent analyst stated that KB Toys would likely benefit from the settlement because they were driving traffic. What did the class counsel get? They got $1 million. Good work if one can get it, but not necessarily a good outcome for their clients. Then there was the 1998 class action filed in Fulton County, GA, alleging that Coca-Cola improperly added sweeteners to apple juice. In this Coca-Cola case, in the settlement of a class action lawsuit alleging that Coca-Cola improperly added sweeteners to apple juice, it was the lawyers who got a sweet deal--$1.5 million in fees and costs. Unfortunately, class members came up empty again, receiving 50-cent coupons but no cash. So each of them got 50-cent coupons while the lawyers walked away with $1.5 million in attorney's fees. As my colleagues know, I am a lawyer. In my practice, I represented both plaintiffs and defendants. I have watched some of the greatest lawyers appear in court when I started to practice law in Pittsburgh, PA, such as James McArdle. When Jimmy McArdle tried a case, the courtroom was always filled with young and old lawyers who wanted to watch a master at work. He brought one of the first cases against the tobacco industry. He lost that one, but it was the case that paved the way to clean up the tobacco industry in this country. I supported many of the tobacco class action lawyers because I thought what they did was in the best interests of their clients and the American public. But this current class action system is out of whack and needs to be fixed. I understand many of these classes are comprised of hundreds if not thousands of members, and I do not begrudge class action attorneys a reasonable fee award. But when the class member gets a 50-cent coupon and the lawyers get $1.5 million because the company has to settle rather than take a chance of going on and getting killed in a forum-shopped court, then you can see why I am upset about this. There is also the case of Scott v. Blockbuster, Inc. Blockbuster Video was named as a defendant in 23 class action lawsuits brought by consumers, alleging that they were charged excessive late movie return fees. In 2001, Blockbuster agreed to enter into a settlement agreement. Under the terms of the settlement, which was approved by a Jefferson County, TX, State court, the class attorneys received approximately $9.25 million in attorney's fees while the class members received--you guessed it--coupons. Each class member got a $1-off, or buy one get one free coupon. Experts have predicted only 20 percent of the class members will even redeem these coupons. I am pleased the bill before us at least ties legal fees to the actual amount of redeemed coupons. If only 1,000 people redeem those $1 coupons, the attorneys would be entitled to a percentage of that $1,000 but not $9.25 million. I have described a few of the many class action settlements streaming out of our State court system. Many State courts appear at times to be nothing more than rubberstamps for the lawyers' proposed settlement agreements. This is not civil justice. In that Jefferson County case, the company, Blockbuster, had to settle. They could not risk going to trial in that particular jurisdiction because of the outrageous verdicts that are granted by jurors who appear to be compromised. This is akin to legalized extortion. Too often it appears that the chief interests served by these settlements are those of the class counsel and not the class members. This bill does not prevent class action suits, but it does stop some of these excesses. The Class Action Fairness Act would alleviate many of the problems present in the current class action system by allowing truly national class actions to be filed in or removed to Federal court. Some of our colleagues have indicated the consumer will be lost here because they will not be able to bring these cases. Give me a break. Of course they will be able to bring these cases. But they have to be brought in a legitimate way, in Federal court where it is much less likely that they will be hammered by political judges who are in cahoots with the plaintiffs' lawyers in that jurisdiction. Federal courts as a general rule will adequately dispense justice in these matters. So the suits can be brought. This will level the playing field that has become tilted in many jurisdictions in the last few years. It also reforms the way Federal courts would approve proposed settlements with basic requirements such as a hearing and a finding by the court that the settlement is fair, reasonable, and adequate. This is the second time the Class Action Fairness Act has come to the Senate floor, but we have been working on it for 6 years. When we failed to achieve cloture by one vote in the preceding Congress--by one vote we failed to achieve cloture--we sat down with several Democratic Senators to reach bipartisan agreement on a bill. We know it is difficult for them to work on this bill because the largest hard money contributor to Democrats in the Senate happens to be the American Trial Lawyers Association. Some people believe Democrats are owned by them. I do not believe that. I know there are many wonderful lawyers in the American Trial Lawyers Association. Most are decent, honorable people, and I know many of them. But there are some who are unscrupulous, and they are the ones who have been fighting this reform. And they have the means to do so since they have become billionaires as a result of these coupon cases won in jackpot jurisdictions. The bill we are considering today is the result of all of these negotiations. S. 5, the Class Action Fairness Act of 2005, presents this Congress with an opportunity to correct some of the dubious practices currently found in the class action system, and to protect the average consumer. The first response I have is that this amendment is based on a faulty premise. Federal courts do not have a hard and fast rule against certifying multistate class actions. Rather, both Federal and State courts conduct a fair, full inquiry before certifying a class, to ensure that common legal issues predominate, as required by the Federal rule governing class actions. Put simply, this Bingaman-Feinstein amendment, as amended by Senator Feinstein, would toss State laws and procedural fairness out the window for the sake of allowing nationwide class actions. It would reverse nearly 70 years of established Supreme Court case law that requires Federal courts to apply the proper State laws when they hear claims between citizens of different States. It would reverse numerous decisions by State supreme courts rejecting the application of one State's laws to class action claims that arise in 50 States, and it would seriously undermine the ability of plaintiffs and defendants alike to have a fair trial. Most importantly, it would have the perverse effect of perpetuating the very magnet court abuses that this legislation seeks to end. The reason for this requirement is self-evident. The whole point of a class action is to resolve a large number of similar claims at the same time. If the differences among class members' legal claims are too great, a class trial will not be fair or practical. In some circumstances, Federal courts have found that the law of different States was sufficiently similar that a class could go forward. In other cases, they have found that the differences were too great to have a fair class trial. The proposed amendment would take away the discretion of Federal judges to make these important decisions. It is as though we do not trust our Federal judges. In this case, we can trust them. Proponents of the amendment conveniently ignore the fact that Federal law in this issue is quite consistent with the approach taken by numerous State supreme courts which have refused to certify cases where the differences in State law would make it impossible to have a fair and manageable trial. In fact, the proposed amendment would reverse decisions by the Supreme Courts of California, Texas, New York, and numerous other States that have rejected nationwide class actions under such circumstances. Second of all, Federal courts already use subclassing where appropriate. Subclassing basically means dividing a class into a couple of smaller classes whose claims are similar. Rule 23 of the Federal Rules of Civil Procedure, the nearly 40-year-old rule governing class actions, explicitly gives courts the option to use subclasses to account for variations in a class as long as the class would still be manageable and fair--for example, if a case involves State law that can easily be divided into three or four groups, subclassing would be appropriate if the trial would otherwise be manageable. At the same time, if subclassing were used in every situation that involves different State laws, in some cases there would be so many subclasses that it would be impossible to have a manageable or even a fair trial. Under current law, Federal judges have discretion to decide when subclassing makes sense. This approach is working. Why would we change it? The amendment not only changes it but makes it even worse. Finally, the amendment would hurt consumers by subverting State law. The proposed amendment suggests that if subclassing will not work, the courts should simply respect State laws to the extent practical. What does that mean? How does a court partially carry out a State law? Judges are responsible for carrying out the law, period--not for carrying out the law to the extent practical. By suggesting the Federal courts should ignore variations in State laws when respected State law is impractical, this provision would perpetuate the very problem that the class action bill is trying to fix. For example, in the notorious Avery vs. State Farm case, a county judge applied Illinois law to claims that arose throughout the country, ruling that insurers could not use aftermarket parts in making auto accident repairs even though several States had passed laws encouraging and even requiring the use of these more economical parts to keep down the costs of insurance premiums. The approach taken by the Avery judge--condoned by the proposed amendment--hurts consumers by denying them the protection of their State laws. Some State legislatures have adopted particularly strong laws in certain areas because their citizens have expressed strong feelings about those issues--for example, privacy or consumer fraud. Under this amendment, citizens of such States will not be entitled to the protection of their States laws in nationwide class actions. Instead, their claims will be subject to some compromise law created by a judge who allowed for a class action trial. That is not justice. That is not good law. That is not a good way to approach things. That is not good procedure. For all of these reasons I urge our colleagues to vote against the Bingaman-Feinstein amendment and keep this bill intact. We also know that should that amendment pass, this bill is dead. One more time, it will be dead. I hope we have enough Senators who realize the importance of getting this bill through and getting these egregious harms straightened out to pass this bill without amendment. Let me refer one more time to Dickie Scruggs' comments which he made at a luncheon--``Asbestos for Lunch''--which was a panel discussion at the Prudential Securities Financial Research and Regulatory Conference on June 11, 2002, in New York. I happen to admire Dickie Scruggs. He is very sharp. He is smart. He has made a billion dollars from practicing law, and I think he has made it legitimately--mainly in the tobacco cases. I have worked very closely with the attorneys in those cases. I have a lot of respect for him. He is an honest man. When this honest man, a top trial lawyer, one of the best in the country, who is a plaintiffs' lawyer, who has brought class actions, who understands the whole system better than those lawyers, says this, I think we ought to pay attention to it. Here is what he said at that luncheon, and he is one of the leading plaintiffs' lawyers in the country. He said: [w]hat I call the ``magic jurisdictions'' . . . [is] where the judiciary is elected with verdict money. What does he mean by that? He means the attorneys make so much money that they in turn can give a small percentage of that money to these judges so they can get elected and reelected. So there is an interest in the courts in making sure the attorneys make a lot of money so they can get their share to be reelected. Let me start at the beginning again. It is best heard in full. Here is what Dickie Scruggs said: [W]hat I call the ``magic jurisdictions, . . . [is] where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges that are elected; they're State Court judges; they're popul[ists]. They've got large populations of voters who are in on the deal, they're getting their [piece] in many cases. And so, it's a political force in their jurisdiction, and it's almost impossible to get a fair trial if you're a defendant in some of these places. The plaintiff lawyer walks in there and writes the number on the blackboard, and the first juror meets the last one coming out the door with that amount of money . . . The cases are not won in the courtroom. They're won on the back roads long before the case goes to trial. Any lawyer fresh out of law school can walk in there and win the case, so it doesn't matter what the evidence or the law is. He said it better than anybody on this floor has said it. And he is a trial lawyer. He said it is almost impossible to get a fair trial if you are a defendant in some of these places. He is talking about Madison County, IL, Jefferson County, TX, jurisdictions in Mississippi, and other jurisdictions throughout the country. I do not want to name them all. The fact is that is what he is talking about. It is impossible to get a fair trial. I wonder. I have heard my colleagues come on the Senate floor and say there were only two cases a year in Madison County. Come on. That ignores all the threatened cases, demand letters, and settled cases for what are basically defense costs--whatever it costs the company to hire their law firm to defend them because they cannot afford to go to a verdict in that particular jurisdiction because that verdict money is what supports the judges to begin with. They are as interested as anybody in making sure that those verdicts are big, even if they are unjust. That is what this is all about--and the Bingaman amendment, as amended by my dear friend, Senator Feinstein from California, continues to perpetuate this system. This is not an overwhelming antilawyer bill. This is not an overwhelming bill that takes away consumers' rights. In fact, it is not a bill that takes away consumers' rights at all. This is not a bill that is unfair. This is a bill that will straighten out these egregious, wrongful actions by some of these jurisdictions by putting these important cases in courts where it is much more likely that justice will prevail. That is what this bill does. It will not prevent anybody from suing. It will not prevent anybody from recovering. It is just that these cases will be tried in Federal jurisdictions in these very prestigious Federal courts, as they should be because of the diversity problems that are presented by these cases, and it is much more likely that we will have less fraud, less unfairness, less jackpot justice in the Federal courts than lawyers are allowed to forum shop them in remote counties with little attachment to the parties. I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, what is the parliamentary state of affairs?

Mr. HATCH. Have no amendments been presented?

Mr. HATCH. I ask the distinguished Senator from Massachusetts if he is prepared to submit an amendment. If he is, I would be happy to yield to him instead of making my comments.

Mr. HATCH. Mr. President, I listened carefully to my friend and colleague from Massachusetts, and I do think he has a few things wrong. For instance, if the vast majority of the people bringing the suit are Massachusetts citizens, under this bill they have a right to bring it in State court, if they want to, although most civil rights cases are brought in Federal court because these are 14th amendment cases. I remember years ago arguing on this floor on these issues, and, of course, the distinguished Senator from Massachusetts and others wanted these cases brought to the Federal courts because they were so afraid some of the State courts would not do justice in civil rights cases. They were right. They wanted them in Federal court. I do not blame them. The Federal courts are made up of judges who are nominated and confirmed for life. Because of that, they should not have any political forces that would take them away from doing justice. In all honesty, nothing in this bill would stop Massachusetts classes made up wholly of Massachusetts citizens or even a majority of Massachusetts citizens from bringing these cases in State court, if they want. One reason the Federal courts are so clogged is because of a wide variety of cases that are now being brought in Federal court, partly caused by people on both sides of the aisle. But there is no question Federal courts are not only good courts, by and large they are basically fair courts. And by and large they are basically very sophisticated courts. And by and large they apply, in these particular cases, the laws of the States in which the suits are brought--I might add, unless there are reasons from the Federal standpoint in applying otherwise. Now, there is nothing in this bill that stops legitimate cases from proceeding. There is nothing in this bill that takes consumer rights away. There is nothing in this bill that will not give consumers or those who are injured a day in court. There is a lot in this bill to prevent some of the phony approaches that are taken by some in the legal profession who should be ashamed of themselves. This bill corrects those kinds of injustices, those kinds of excesses, those kinds of problems. I urge my colleagues to vote against this carve-out amendment offered by my distinguished friend from Massachusetts, Senator Kennedy. This amendment excludes from the bill's existing jurisdictional provisions those class actions involving civil rights violations and class actions involving wage-hour disputes. But before I address the imprudence of carving out these types of cases, I would like to make it perfectly clear, as I think I have up to now, that S. 5 in no way impairs the substantive rights of litigants to bring, among other claims, civil rights and wage-hour claims. Some opponents of this bill seem ready to conveniently gloss over this critical fact in their efforts to pass bad information about what this bill does. S. 5 is procedural in nature and simply moves larger interstate class actions to the appropriate forum where they belong in the first place: in Federal court. These class actions often involve the most money, parties from different States, and issues that transcend State lines. Yet by the same token, the bill preserves States rights to adjudicate truly local disputes on behalf of their citizens. Now, those are facts. This bill does not take any rights away from anybody. But what we are trying to do is stop the forum shopping; in other words, finding jurisdictions that will render outrageous verdicts that basically benefit the attorneys, the lawyers, not the people for whom they are suing. Well, let me say, first, an affirmative exclusion of civil rights cases from Federal jurisdiction runs counter to the bedrock principles of encouraging our Federal courts to adjudicate civil rights disputes. I remember, in days gone by, there was a demand that these cases be in Federal court because they are courts of primary jurisdiction under the Constitution and because, as a general rule, more justice was done. I think this principle speaks for itself when you look at the plethora of Federal civil rights statutes extending protections against employment, housing, race, and gender discrimination. That is just to name a few. Indeed, the Federal courts' involvement with civil rights is so pervasive that Federal courts routinely hear claims brought under State civil rights laws. This is not unusual. The Federal judiciary's extensive involvement in civil rights matters has also led to favorable results for civil rights litigants. Honest litigants are not going to lose in Federal court. It is just that simple. And they are probably more greatly protected because there is naturally less politics in Federal court. Federal courts have a long record of certifying discrimination class actions and approving generous settlements in most of these cases. Take, for instance, the recent Home Depot gender discrimination settlement which paid class members somewhere in the neighborhood of $65 million or the $192 million Coca-Cola race discrimination settlement in which each class member was guaranteed a recovery of at least $38,000 in cold hard cash. And, of course, there is the recent Federal court certification of the largest civil rights class action in U.S. history involving 1.6 million former and current female employees of Wal-Mart. These are successful, proven results that belie any claim that Federal courts are somehow hostile to civil rights actions. In fact, it is laughable to now say that we have to have these in State courts when all these years we have been working hard to get these cases to Federal court so they would be adjudicated more fairly. Some of those who support a civil rights carve-out also contend the Federal courts are overworked and incapable of handling such matters, that the State courts are better equipped. Give me a break. We have heard this concern raised repeatedly from opponents of this bill who apparently believe that if they say it enough times, the proposition may somehow turn out to be true and, at the very least, to minimize the significant deficiencies in our State courts. These critics claim that it takes 5 years to get a class action to trial in Federal courts. But do they have the raw data to back these claims? Of course, they don't. In reality, the median time for final disposition of a civil claim filed in Federal court is 9.3 months, and the median time to trial in a civil matter in Federal court is 22.5 months. Moreover, what some of the critics hide is the fact that the State courts have experienced a much more rapid growth in civil filings than have the Federal courts. Civil filings in State trial courts of general jurisdiction have increased 21 percent since 1984, and there are delays in many State courts on civil actions that are longer than they are in Federal court. As for filings in some of the more notable magnet State court jurisdictions, let's look at some of the figures. Just look at this chart. The number of class actions filed in State courts have skyrocketed in State courts under current law. Take Palm Beach County, FL. It has gone up 35 percent between 1998 and 2000. In Jefferson County, TX, a notorious jackpot jurisdiction, it has gone up 82 percent. In Madison County, IL, another notorious jackpot jurisdiction--in other words, a jurisdiction where defendants don't have a chance because of politics and moneys donated to judges from the trial lawyers in that particular jurisdiction, primarily--over 5,000 percent between 1998 and 2003. Why? Because it is a county that is out of whack. If the plaintiffs' attorneys can get cases in Madison County, they are going to get big verdicts, outrageous verdicts for people who aren't even sick, people who don't even have problems in some cases. The overall increase in State courts is 1,315 percent. So don't use that argument. If you add the fact that State courts are almost always courts of general jurisdiction where they hear matters ranging from traffic violations to domestic disputes, I think you get a pretty clear picture of what our State courts are faced with in terms of workload. As a final point, I would like to note that the Judiciary Committee soundly defeated this very amendment of the distinguished Senator from Massachusetts during markup last Congress. We reported the bill in a bipartisan 13-to-5 vote in this Congress. The committee voted against the civil rights carve-out on a solid bipartisan basis and understood the inherent problems with this amendment. This amendment lost footing in committee and should not gain traction here. The second carve-out excludes wage and hour or timesharing claims from the bill. These are actions brought by employees against their employers for violating wage and hour restrictions imposed under applicable labor laws. While these actions are certainly important for working Americans, there is no principled basis to exclude them from this bill, not one principled reason. Again, let me be clear about S. 5. This bill in no way affects the substantive rights of these workers to seek redress for these wage and hour claims. In other words, employees who bring wage and hour claims against their employers will still have the exact same rights they do now if this bill is enacted. The only way the bill could possibly affect these cases is by moving them to Federal court. But what the proponents of this amendment overlook is that if a wage and hour case meets the interstate criteria of the bill, then there is absolutely no reason to exclude them from Federal court. It makes no difference if the case involves a defective product, a false advertising claim, or a breach of warranty. If the class action lawsuit involves parties from different States and involves a large amount in controversy, regardless of whether the claims are predicated on State law, then the case should be heard in Federal court. This is why we have diversity jurisdiction in the first place, and it is certainly what the Founding Fathers had in mind when they drafted our Constitution. I urge my colleagues to vote against this amendment. It establishes bad policy and is nothing more than yet another attempt to weaken the bill. This amendment, including all other carve-outs, for that matter, also flies in the face of the bipartisan compromise that is now embodied in S. 5. I intend to honor this compromise and encourage my colleagues to do the same. Let me just say, it is unseemly to claim that the Federal courts are not as good as the State courts. And it is even worse to claim that the Federal courts should not have jurisdiction in these matters. The fact is, we have provided through the Feinstein amendment language that permits certain cases to be in State courts. But when they get to the size of the 100 or more in a class and over $5 million, these cases have to be brought in Federal court. And the reason is because of these jackpot jurisdictions that I have been pointing out that really do not do justice and are not fair. Earlier, the distinguished Senator from Illinois was talking about how few cases are filed in Madison County, IL. What he doesn't tell you is that the minute the lawyers start talking about a class action and they send a demand letter, the companies know they are dead if the case is brought in Madison County, IL. No matter how right they may be, they are dead because the judges in that particular jurisdiction are in the pockets of the local lawyers with whom the out-of-State lawyers who have these class actions align themselves in order to go in there and get these outrageous verdicts that would not be obtained in any fair court of law. So what do the companies do? They have no choice. They will settle for what they estimate the defense costs to be because why should they take a chance on jackpot justice? And it then becomes, in the eyes of many, a broken system of extortion, extortion by attorneys, extortion by the judges over companies that probably have little or nothing to do with Madison County, IL, but because of the current system, wind up there, either getting staggered with unjust judgments or doing what prudence tells them they have to do, and that is paying whatever they estimate the defense costs to be to get rid of the lawyers. It comes as close to legal extortion as anything I have seen. That is what we are trying to solve here. It doesn't take away anybody's rights. It just means they will have to prove their case in Federal courts. And Federal courts are very competent courts. Judges are appointed for life. They are less political, although every once in a while you see some politicization of Federal court, but nothing like these jackpot justice jurisdictions that are constantly used by some of these unscrupulous lawyers to get outrageous verdicts so they can collect great big fees. Yesterday, we talked about coupon settlements--the lawyers get huge fees and the person winds up with a $5 coupon that is meaningless. That doesn't mean that some of these cases are not valid, but they could just as easily be won in Federal court, if they are valid, as they can in State courts, but not as easily as in these jackpot justice jurisdictions where justice is denied. We can throw around big corporations all we want, but businesses in this country are not all big and, even if they are, they deserve to be treated justly. That is what our court system should be doing. It should not discriminate against them because they are large corporations. If they are fair and right, they should be treated just as fairly and rightly as anybody else. We have come close on this bill now a number of times, very close. In November of 2003, we struck a deal that gave the Class Action Fairness Act the requisite number of votes to pass even if the bill was filibustered. We got the votes, guaranteed up to 62. It was a bipartisan compromise that allowed us to reach this commonsense agreement. Believe me, this compromise does not satisfy everybody or, for that matter, doesn't satisfy anybody. The fact is, it is what it is--a bipartisan compromise. If I would be permitted to write the bill the way I think it should be done, I think it would be perfect, and others in this body would feel the same way. But we have worked out this bipartisan compromise and we need to stick with it. Senator Cornyn explained this morning why he believes the bill should go further in correcting abuses in the current system, and he explained how he would fix some of these problems legally. He is not wrong, by the way. He also said he would not advance these amendments at this time because he understands the complex dynamics in arriving at the compromise bill. We have been at this for the last 6 years. That is how long we have tried to get this bill through. This bill is not perfect, by any stretch of the imagination. No bill is around here, because we have to work with 535 Members of Congress. Depending on your perspective, this bill either gave away too much or not enough. The fact is, this bill is just about right and it is time to get it done. We know we should get it done. A supermajority of those in this body should get it done. But nearly a year and a half after we struck a deal to get it done, a series of amendments are still being offered that would scuttle this bill and, unfortunately, the amendment by the Senator from Massachusetts happens to be one of them. Let us get down to the brass tacks. It is rug-cutting time. If any amendments upset the essential compromises that have been negotiated over a long period of time, this bill will not become law. The purpose of these amendments is not to improve the bill but to destroy it. The House of Representatives will not agree--they have made it super clear--to a bill that includes amendments that gut this bill's modest and reasonable reforms. I have to say I don't blame them. They have seen this process for the last 6 years. The American people have waited for this reform for far too long. I should remind my colleagues that if we fail our constituents at this time, the memory of the American people is a long one. I will speak today about a number of amendments that will likely be offered. In my opinion, and in the opinion of those most familiar with the bill, these amendments are poison pills, and everybody knows it. These amendments were not part of our discussions with Senators Schumer, Dodd, and Landrieu that resulted in the current bipartisan legislation. I don't mean to limit it to them. There were a whole raft of Senators on both sides of the aisle. I will repeat that for emphasis. We had a deal. None of these amendments were part of this deal. What happened to the days when a deal was a deal? These amendments are quite literally being offered at the eleventh hour and I think for a purpose other than to improve the bill. Let's be honest about it. Consumers, plaintiffs, and others who have rights are not going to be foreclosed from vindicating their right in a court of law. It is just that they are not going to be able to take these cases--and certainly outrageous cases--to these jackpot justice jurisdictions where justice is denied any longer--except under some loophole exceptions in this bill. But the vast majority of the problems should be solved by this bill. There are a lot of people out there who have been very badly mistreated because of the current broken tort process, who are praying we will be able to get this bill through. Let me make this clear. If we add one of these amendments, I think the bill is dead again, even though it has had 62 prime sponsors-- people who will automatically vote for this bill and who understand the game here is to get a bill out that will do some justice in this country and stop some of the jackpot justice that has been going on. I don't mean to denigrate anybody's amendment, but let's be fair and make it clear that this bill does not take away rights. This bill enhances rights for both sides, and not just for plaintiffs but also for defendants. So fairness in the tort system will be brought back to the forefront. In the case of civil rights and wage-and-hour disputes, look, for years we have argued they should be in Federal court. Now, all of a sudden, they don't want them in Federal court. All you can do is surmise: why is that? I think everybody knows why. I yield the floor.

Mr. HATCH. Mr. President, I notice the distinguished Senator from Wisconsin is in the Chamber, but I would like to make a few more remarks if he does not feel too badly about it. I support this bill. I have been working on it for 6 years. It is a grand compromise. We have Democrats and Republicans. It is bipartisan. It is not perfect, but it is as good as we can do and it will do an awful lot of good. The evidence is clear and undeniable; the well-documented abuse of the class action litigation device too often ends up victimizing plaintiffs, the very people that class actions are supposed to benefit. These abuses cheat millions of consumers who unwittingly have their legal rights adjudicated in local courts thousands of miles away. They deny the due process rights of defendants who are relentlessly hauled into a handful of small county courts where the playing field is unfairly tilted in favor of the personal injury bar, the plaintiffs' bar. If that were not enough, class action abuses are eroding public confidence in our civil justice system. When abuses do occur in the class action system, the public can ultimately pay dearly through spiraling prices, lost jobs, and even bankrupt companies. I have been listening to arguments from the other side, but to give the class action problem some perspective, I want to consider just the effect of this litigation in one locale, Madison County, IL. There we find a case study in rampant misconduct within the class action system, its corrupting effect on the courts, and the desperate need for reform. This small county in the southwestern part of that State provides all the evidence necessary to convince anyone that the legal system is currently being exploited by shameless and self-seeking plaintiffs' lawyers. Madison County, IL is a rural county. I imagine it is the type of county where maybe Abraham Lincoln first got his start as a young lawyer and an advocate for justice. In some notes perhaps taken in preparation for a law lecture around 1850, Lincoln set the ideal for his profession, a profession practiced by many in this Chamber, including myself. No. 1, ``Discourage litigation . . . Point out how . . . the nominal winner is often a real loser--in fees, expenses, and waste of time.'' No. 2, ``Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defective titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.'' And No. 3, ``An exorbitant fee should never be claimed.'' These words were uttered during a time when being a lawyer automatically carried with it a title of honor, integrity, and trust. Unfortunately, Lincoln's words no longer carry much meaning for some of the lawyers who have descended on Madison County. In the land of Lincoln, the rule of law has too often been corrupted almost beyond recognition by self-interested plaintiffs' lawyers and seemingly pliant public officials. Some unscrupulous personal injury attorneys go forum shopping to find friendly jurisdictions. Certainly Madison County, IL is one of them. Then some judges in those jurisdictions, some of whom are compromised by campaign contributions from the very same law firms arguing in their courtrooms, sometimes certify these cases with the proverbial rubber stamp, even though they are not worthy of being certified. Finally, sympathetic local juries trying out-of-State corporations have sometimes bestowed unjustified and sometimes outrageous awards. This pattern of behavior is not only an affront to the due process rights of defendants, but it breeds disrespect for the rule of law itself. I have heard colleagues on the other side of the aisle say, `Well, these are big corporations.' First, they aren't all big corporations, and second, even if they were, they still deserve fair treatment, due process, and an impartial justice system. And make no mistake about it. These suits are not free. We all pay for them. The American consumer pays for the costs of these class actions. The courthouse in Madison County, IL is what scholars now describe as a magnet court. Always on the lookout to find suitable venues for enriching themselves, entrepreneurial plaintiffs' attorneys--many of whom practice in the field of personal injury--are sucked into its orbit. The numbers alone tell the story. Over the last 5 years the number of class actions filed in the county has increased by 5,000 percent. Let me repeat that so that astronomical figure can sink in. A 5,000- percent increase. It almost defies logic that so many national class actions are being brought in this small rural county. In 1998, there were only two class actions filed in this county. In 2000, that number rose to 39. In 2001, there were 43 new class actions. One year later, the bridges leading to the riches of Madison County were clogged with carpetbagging lawyers as word hit the street that the local court there was giving away money as though it was Christmas morning. Enterprising plaintiffs' lawyers looking to make a quick buck knew Madison County was the place for business. In 2004, 77 class action suits were filed. In 2003, there were another 106. Between 1998 and 2003, the number of class actions in the county rose from 2 to 106 per year. In the last 4 years, the lawyers who flocked to Madison County succeeded in having the following cases certified. All Sprint customers in the entire Nation who have ever been disconnected on a cell phone call. That is a class action in Madison County. Every Roto-Rooter customer in the country whose drains might have been repaired by a nonlicensed plumber. All consumers who purchased limited edition Barbie dolls that were later allegedly offered for a lower price elsewhere. These are just three examples of the abuses that are going on. I know my friend from Illinois, the minority whip, Senator Durbin, is understandably protective about the state of affairs in Madison County. He points out that while many class actions are filed in Madison County, few are certified. It does not take a lot of cases like the ones I talked about to create an environment that encourages cases that are marginal at best. Through their increased filings, class action attorneys tell us a great deal of what we need to know about Madison County. That many of these cases are settled upon filing or even before they are filed tells us a lot. A demand letter from a class action attorney with a Madison County address is a dreaded piece of correspondence for any company or any defendant. If these types of cases were not such a drain on our economy, it would almost be easy to laugh at some of these cases. We question the efficiency and fairness of a small county courthouse in Illinois adjudicating cases against national companies involving various State and Federal regulations and involving millions, if not billions, of dollars in settlements where neither the majority of plaintiffs nor the defendants are typically residents of the county. These locally elected judges, with the close assistance of interested plaintiffs' attorneys, in effect set policy for the entire Nation, defying the principles of self-government on which our Federal system is based. This situation is a colossal mess, and a few plaintiffs' lawyers are exploiting it to the hilt, and giving all of us who love the practice of law a bad name. The same five firms appeared as counsel in 45 of all cases filed between 1999 and 2000. Of the 66 firms appearing in these cases, 56 of them--85 percent--had office addresses outside of Madison County. In this small county, with a population of only 259,000, there are somehow more mesothelioma claims from asbestos exposure than in all of New York City with its population of better than 8 million. One nine- member firm with an office in Madison County claims to handle more mesothelioma cases than any firm in the country. Who benefits from all of this litigation? One Madison County judge approved a $350 million settlement against AT&T and Lucent for allegedly billing customers who leased telephones at an unfair rate. What did the lawyers get? Forty-four lawyers from four firms will split $80 million for legal fees and $4 million for expenses. And the customers? They actually lost money. After their legal fees, the average class member got hit for $6.49. Think about that. Lincoln's principles are a distant memory in Madison County. The Washington Post succinctly described the situation. ``Having invented a client, the lawyers also get to choose a court. Under the current absurd rules, national class actions can be filed in just about any court in the country.'' And those lawyers often pick Madison County. They are picking it because it is what some call a magic jurisdiction. Let me refer to this chart, called ``Magic Jurisdictions.'' This is Dickie Scruggs, one of the best plaintiffs' lawyers in the country, a man I have great respect for. But in a luncheon talk on the asbestos situation at a panel discussion at the Prudential Securities Financial Research and Regulatory Conference on May 9, 2002, he had this to say. This is Dickie Scruggs. You can believe him. This man understands the litigation field. He is a billionaire from practicing law. He said: What I call the ``Magic Jurisdictions'' is where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges that are elected. They are State court judges. They are populists. They have large populations of voters who are in on the deal. They are getting their piece, in many cases. And so it's a political force in their jurisdiction and it's almost impossible to get a fair trial if you are a defendant in some of these places. The plaintiff lawyer walks in there and writes the number on the blackboard, and the first juror meets the last one coming out the door with that amount of money. The cases are not won in the courtroom. They're won on the back roads long before the case goes to trial. Any lawyer fresh out of law school can walk in there and win the case, so it doesn't matter what the evidence or the law is. That is one of the leading plaintiffs' lawyers in the country. He was honest enough to call it the way it is in Madison County. Madison County is not the only jackpot jurisdiction, but I am concentrating on it since the distinguished Senator from Illinois has focused his remarks on our criticism of this jurisdiction. Dickie Scruggs is a fine lawyer. I have said that. I worked with him on the tobacco settlement. He and Mississippi Attorney General Mike Moore did a good job for their clients and the American public. I am very familiar with what they did. I am familiar with the Castano Group as well, which risked millions of dollars to bring the tobacco suits. They had an entire multifloor building filled with documents they accumulated at the cost of millions of dollars to make their case in the tobacco suits. Dickie Scruggs is a fine lawyer. So is Mike Moore. So are the Castano Group lawyers. Having said that, there is a reason the Super Bowl is held at a neutral site. It is clear that Madison County is not a neutral site. When it comes to class action defendants trying a class action case in Madison County, it is like shooting fish in a barrel. Dickie Scruggs is simply too good of a lawyer to need any unfair advantage and that goes for the vast majority of plaintiffs' attorneys in our country. But there are a minority of lawyers who are causing the vast majority of our problems. What makes for a magical jurisdiction? In a magic jurisdiction, the supposedly objective judges and jury, all stand to gain from a settlement. Madison County, as the Chicago Tribune notes, is a jackpot jurisdiction where local newspapers ``sport advertisements looking for the local plaintiff that can provide a convenient excuse to file.'' Some have concluded that this choice of venue might have something to do with the fact that in recent years the elected judges of the circuit court of Madison County have received at least three-quarters of their campaign funding from the lawyers who appear before them in these class action suits. In a simpler time, the State court would only certify a class if there was a substantial local connection. Some of the judges in Madison County have created an environment where a lifelong resident of Washington State, who worked in Washington, was allegedly exposed to asbestos in Washington, never received medical treatment in Illinois, and had no witnesses in Illinois to testify in his behalf, actually thought it was worth a shot to bring suit in a strange town halfway across the country. What was his connection to Madison County? He vacationed in Illinois for 10 days with his family nearly 50 years ago. In this case, the court did the right thing and refused to certify this man's claim. But that a lawyer would even consider bringing it shows how far gone Madison County is. So far, the Illinois Supreme Court has taken the extraordinary step of rebuking it. As legal ethics professor Susan Koniak of Boston University School of Law explains: Madison County judges are infamous for approving anything put before them, however unfair to the class or suggestive of collusion that is. This is not justice. This is a travesty. The St. Louis Post-Dispatch, one of this Nation's great newspapers, has followed this epidemic of litigation closely. They describe the run on the Madison County courthouse as resembling ``gleeful shoppers mobbing a going out of business sale.'' Due process itself is corrupted by this circus. What is going on in Madison County too closely resembles legalized extortion in the eyes of many observers. The deck is stacked against these companies hauled to Illinois to answer these charges. The cases are sometimes heard on an expedited basis. Under these pressures they are typically given an offer they cannot refuse. Once the class is certified, they feel compelled to settle, regardless of the merits of the case. The risk of loss is simply too high. They do not even have to wait until the class is certified. They know that in most cases the class will be certified by the judges of Madison County. A simple demand causes many companies to say, `let's buy out of this for the lowest price we can, even though we do not owe them a dime. We will just settle for the attorney's fees.' These settlements are to the detriment of legitimate claims. The class never has to be certified. No self-respecting lawyer will want to try a case in a county where the deck is totally stacked against his client. And so they settle. Let us be clear, these are not truly local disputes. S. 5 does nothing to remove local disputes from local courts. The suits we are talking about in Madison County and other jackpot jurisdictions are on behalf of nationwide classes of clients against corporations that do business in every State. Madison County is not chosen as the venue because of its quaint scenery. It is chosen because defendants in these class actions often do not get a fair shake in Madison County. This is not a triumph of federalism and local decisionmaking. It is the evisceration of federalism and fairness. A bedrock principle of our federal system is that states are largely free to regulate their own particular affairs. To allow one State, in effect, to legislate for another is to violate an important principle of self-government that this country is built upon. Madison County has been flooded with class action claims and now the Nation is drowning in them. This is a classic case for Federal intervention. In fact, this is a case study for the type of intervention in Federal affairs the Constitution was meant to allow. What happens in Madison County affects the whole country. The overwhelming majority of class actions filed in Madison County are nationwide lawsuits in which 99 percent of the class members live outside the county. As a result, decisions reached in Madison County courts affect consumers all over the country and the county's elected judges effectively set national policies on important commercial issues. There is a place for personal injury law in the American justice system. I understand that. I am an attorney. I have tried many cases. I know that there is a legitimate and honest place for personal injury suits in our civil justice system. Americans have a sacred right to take their case to court when they are harmed by a person or product. Yet this right is seriously undermined by a seriously compromised class action regime. To help rescue it, we need to enact this reform. Today's lawyers do not take cases that come to them. They invent cases. They behave more like entrepreneurs than counsel, trying to find an issue and income stream before they find a plaintiff. They act like businessmen--the CEOs of Trial Lawyers, Incorporated. The problem is that their business plan makes hash out of our system of impartial justice. It simply defies belief that county courts are the proper venue for multijurisdictional litigation. Some of the plaintiffs' bar have put a ``pay the lawyer first'' business model in motion in Madison County. First, find sympathetic judges. Then bankroll their campaigns. And to seal the deal, move the case through the system so fast that the defendants do not always get a fair opportunity to fully investigate the claim. Justice does demand fairness, but our system of decentralized class action litigation is fundamentally unfair to defendants, plaintiffs, and the average American who ends up footing the bill for the unjustified billion-dollar settlements. If this were a board game, it would be ``Class Action Monopoly.'' Start at `Go', and come up with an idea for a lawsuit. Find a named plaintiff to pay off. Make allegations, no proof needed. Get out of rule 23, the Federal rule 23, free. Convince your magnet State court judge to certify the ``class.'' File copycat lawsuits in State courts all over the country. Sue as many companies in as many States possible even if they have no connection to the State. Who gets the money? In the Columbia House case, $5 million for lawyers, discount coupons for plaintiffs. In the Blockbuster case, $9.25 million for lawyers, free movie coupons for plaintiffs. In the Bank of Boston case, $8.5 million for lawyers; some claimants even had to pay themselves. But ``What happens to me?'' Your employer takes a hit, maybe lays you off. Your health and car insurance premiums go up. And we are all familiar with that. The lawyers win, you lose. This game gets pretty old, pretty quick. But this is this jackpot monopoly system we have in Madison County, and a whole bunch of jackpot jurisdictions in this country. Now, the Class Action Fairness Act is an important but modest reform. It does not deprive substantive legal rights to any American. All it does is make it easier to put these national cases where they belong, and that is in our Federal courts. According to one study, 98 of the 113 class actions filed in Madison County from 1998 to early 2002 could have been moved to Federal court under this legislation. Justice demands that we act. We cannot play around with this any more. Those who are injured will get their day in court, but it will be Federal court, with sophisticated judges who are appointed for life, who have no reason to be unfair. By voting for S. 5, we will help make sure they get it in a court where justice can be dispensed. I yield the floor to the distinguished Senator from Wisconsin.

Mr. HATCH

Mr. HATCH. Mr. President, I appreciate my two colleagues and their remarks on this very important bill. I rise to express my strong support for S. 5, the Class Action Fairness Act of 2004. This bipartisan bill represents a carefully crafted legislative solution in response to the rampant abuses of the class action litigation device currently in our State courts. The American public will benefit from a system that fairly compensates these injured people by those who are injured by unsafe or defective products. No one disputes this. We all want a system of compensation, but we must make sure the system is fair, reasonable, and equitable. As well, this legislation helps protect against unfair recoveries because, in the end, the public pays when defendant companies are forced to pay excessive claims and sometimes must increase prices, decrease employment, or even become bankrupt or go out of business. We ought to all understand that we all pay for that, and that is why it is important we get the laws right and that we correct injustices and distortions of the law. Before I begin discussing the legislation, I commend the distinguished majority leader, Dr. Frist, for bringing this bill up so early in the Congress. I also commend President Bush for recognizing the importance of this issue in his State of the Union Address. Senators Grassley, Kohl, and Carper also deserve recognition for all the time and effort they have devoted to this particular bill over the last several Congresses, and without their tireless work, we would not have the bipartisan compromise bill that we have in S. 5. Finally, I must recognize Chairman Specter for placing this bill on the Judiciary Committee agenda and reporting this legislation last week. Over the past decade, it has become painfully obvious that class action abuses have reached troublesome proportions in our civil justice system. It has become equally clear that the true victims of this epidemic have been everyday consumers who represent the silent majority of unnamed class members. It has become too common an occurrence for plaintiff class members not to be adequately informed of their rights or of the terms and practical implications of a proposed class action settlement. Making matters worse, judges too often approve settlements that primarily benefit class counsel, the personal injury lawyers, rather than the class members--in other words, the victims. Efforts to reform our class action system are nothing new to the Senate. The Senate Judiciary Committee conducted hearings in the 105th, 106th, and 107th Congresses, reporting a similar bill from the committee in the 106th on a bipartisan basis. Since then, we continue to receive substantive evidence demonstrating the drastically increasing injustice caused by class action abuses. After working extensively with numerous legislative proposals throughout the various Congresses, we are now on the verge of taking final action on a balanced bill that I would like to spend a little bit of time explaining further. When I say a balanced bill, I refer specifically to the operation of the bill's grant of Federal jurisdiction over interstate class actions. This key provision is located in section 4 of the bill and corrects a flaw in the current application of the Federal diversity jurisdiction statute that now prevents most interstate class actions from being adjudicated in Federal courts. Specifically, section 4 of the bill grants the Federal district courts original jurisdiction to hear interstate class actions if, one, any member of the proposed class is a citizen of a different State from any defendant; two, the amount in controversy exceeds $5 million; and, three, the class action lawsuit involves a class of 100 or more members. Although I believe the three conditions I have noted are more than sufficient to achieve the right balance between Federal and State interests, S. 5 goes a step further by incorporating two additional provisions to accommodate the States' interests in adjudicating local disputes. First, pursuant to an amendment offered by Senator Feinstein during a markup last Congress, Federal jurisdiction would not extend to any case in which two-thirds or more of the proposed class members and the primary defendants are residents of the State where the action was filed. This exception keeps in the State courts those class actions that are prosecuted by a locally dominated plaintiffs' class with grievances against local defendants. In other words, a locally dominated lawyer- judge set of relationships that seems to be continually resulting in unjust treatment in the courts. Similarly, the Feinstein amendment also provides that Federal courts may, based on a number of carefully proscribed factors, decline to exercise jurisdiction in middle tier cases in which two-thirds of the proposed class members and the primary defendants are residents of the same State. To be sure, as part of the recent compromise reached last November with Senators Schumer, Dodd, and Landrieu, we further modified the Feinstein amendment by adding an additional factor for the Federal courts to consider for the middle tier of cases specifically whether there is a substantial nexus between the claims and the court selected by the plaintiffs. I will refer to the Feinstein chart. That chart makes it very clear, in my eyes, that tier I, two-thirds or more of the proposed class members, are in-State versus in-State primary defendants. That would stay in State court. Tier II, between one-third and two-thirds of the proposed class members are in-State versus in-State primary defendants, and one can go to either State or Federal court, subject to the judge's discretion. Tier III, where there is one-third or fewer of the proposed class members in-State versus in-State primary defendants, those cases go to Federal court. Although I believe the three conditions I noted are more than sufficient to achieve the right balance between Federal and State interests, section 5 goes a step further by incorporating these additional principles to accommodate States' interests in adjudicating local disputes. The second point I was making is that States' interests in adjudicating local disputes on behalf of their citizens are further preserved through a newly created exception to Federal jurisdiction for truly local controversies. This provision, which we negotiated on a bipartisan basis last November with the three new Democratic sponsors of this bill, keeps in the State courts those class action lawsuits that satisfy the following four criteria which I will discuss in greater detail so there is no confusion on this issue. Criterion 1, the proposed class must be primarily local, where more than two-thirds of the class members are citizens of the State where the suit was filed. This formulation resembles the two-thirds test in the Feinstein amendment I just discussed and essentially requires a large majority of the injured claimants reside within the State. Criterion 2, the class action must be brought against at least one real defendant. The local defendant cannot be peripheral. Rather, the lawsuit must be brought against at least one defendant with a significant basis of liability and from whom significant relief is sought. This provision essentially precludes personal injury lawyers from evading Federal jurisdiction by simply naming a local defendant such as Hilda Bankston, who was unmercifully dragged into scores of class action lawsuits simply because her small family-operated pharmacy sold the diet drug phen-phen. That was the only reason she was brought in, but the real reason was because she was a pigeon sitting in the State and they used her as a device to bring all of these suits by many people who had nothing to do with the State, nothing to do with her. Criterion 3, the principal injuries must have occurred locally. In other words, the total extent of the injuries complained of must be concentrated within the forum State. By way of an example, a nationwide drug lawsuit involving injuries spread throughout the country would certainly not qualify for this criteria. On the other hand, this criteria would be satisfied by a class action lawsuit involving a factory explosion affecting a confined geographic area. Criterion 4, no other similar class actions can have been filed during the preceding 3 years. This criterion is intended to ensure that the exception does not apply to those class actions that are likely to be filed in multiple States based on the same or similar factual allegations against any of the same defendants. When applying all four criteria, the local controversy exception will enable State courts to hear local class actions alleging principal injuries confined to the forum State and where the lawsuit involved litigants who predominately reside within that State. I refer to the local controversy provision chart. As my colleagues can see, that chart for these tier III people keeps truly local claims in State court. With regard to plaintiffs, if two- thirds or more of the proposed class members are in the State and with regard to the defendants at least one in-State defendant from whom significant relief is sought--not the Hilda Bankston who was ruined by these false suits--and alleged conduct forms a significant basis of claims, and the nature of the claim's principal injuries were incurred in the State as a result of the alleged significant conduct, then those cases can be heard in State court. I was interested in the comments of the distinguished Senator from Vermont about justice and injustice. The injustices are all on the side of those who do not want this bill because they are protecting personal injury lawyers rather than the individual claimants. The individual claimants will have a right to go to court. It just may be that they have to go to Federal court rather than State court. Given the addition of Senator Feinstein's three-tiered jurisdictional test and agreed-upon local controversy exception, I find it puzzling that some have represented this bill will somehow move all class actions into Federal court. We just heard some comments like that. Nothing could be further from the truth. I urge these colleagues to read section 4 of the bill. If they cannot find comfort in this language, I urge them to look at studies showing that the bill will do nothing of the sort. If they are still skeptical, I urge them to talk to the cosponsors of the bill, including our Democratic partners, for a completely candid assessment on whether the legislation will move all class actions into Federal court. It simply will not. These actions will be able to be brought, but there will not be the same ability to forum shop into favorable jurisdictions that act outside the law and allow unjust verdicts such as we have today. I think the answer is perfectly clear. This bill moves to Federal court larger interstate class actions while keeping in State court local matters that are more suited for the States. Although I have focused on two provisions in S. 5, I think it is important to note that this bill contains many other changes we included so that we could build a bipartisan consensus. After we fell one vote shy of invoking cloture the year before last, three Democratic Senators who voted against proceeding on the bill presented us with a detailed list of issues they wanted resolved before they could support class action reform legislation. After extensive discussions in November of 2003, we responded to each and every concern raised by these Senators and made the appropriate changes that are now embodied in S. 5. As my colleagues will see, the points we have made show each Democratic concern that was raised and how we addressed those concerns. S. 5 is a modest bill that will help to put an end to class action abuses occurring in some of our State courts. Contrary to the arguments from the bill's opponents, S. 5 does not sweep into Federal court every conceivable class action. The bill more than adequately accommodates the States' interests in adjudicating local disputes. I might add that the argument we are going to deprive consumers from their day in court is pure bunk. The fact is, under certain circumstances, they will have a right to be in State court or have a right, through the judge, to be in State or Federal court, and under certain circumstances that are much more fair to all litigants concerned, they will have to go to Federal court. There is nothing wrong with going to Federal court. In fact, when I practiced law we loved to have cases that went to Federal court because people thought they were more important cases. Frankly, in most cases they were. When these cases are important, they will be tried in Federal court as well. One thing we are concerned about, we think we have a better chance of having real justice in these cases in Federal court than to have the Hilda Bankstons of this world put out of business under what are false pretenses and manipulation of the Federal judicial system. This legislation has been crafted and drafted through close bipartisan cooperation with several Members on the other side of the aisle, and as a result now commands a simple majority of support of this body. Despite this support, we are still faced with the obstructive tactics from a small minority that will do anything to appease the powerful and well-funded personal injury trial bar. I find this unfortunate and hope these colleagues can look beyond these special interests and do what is right for the country's ailing civil justice system. I have always belonged to the trial bar and I think most trial lawyers are people of dedication and decency who want to do what is right, but we have seen in recent years a real subversion of the law by some trial lawyers who are interested only in money. In many respects, they are not worried about clients but worried about their own compensation system. The fact is, we need to do what is right for our country's ailing civil justice system. The Class Action Fairness Act addresses an abuse of the class action system that has grown substantially in the past few years. I am referring to the gaming of the judicial system by unscrupulous lawyers to evade Federal diversity jurisdiction. In some cases, the filing and settling of class action lawsuits has become a virtual wheel of fortune with every spin of the wheel potentially worth millions of dollars. However, class members do not benefit from these spins of the wheel. Rather, it is the class counsels who receive millions of dollars in attorneys' fees who are the real winners of this gaming situation and of the game. It is the sad but true fact that the most class members can expect to receive, which is an ironic twist, is a coupon good for the future purchase of the very product that was the basis of their claim to begin with. Again, under the current tort system, it is the class action lawyers who are the real beneficiaries. They are the ones who walk away from a class action with millions in their pockets while the class members walk away with little or nothing at all but these coupons. Before I turn to some specific examples of class action lawyers gaming the system to the detriment of their clients, let me explain just how this game works. It starts with a few class action attorneys sitting around a table, thinking of an idea for a class action lawsuit. While this idea may come from any numbers of sources, it is usually formulated and solidified after an examination of the deepest pockets in the corporate world. Naturally, they want to make money. Once an idea for a class action is formed, it is time to find a lead or named plaintiff. The named plaintiff will inevitably be someone who is a citizen of the same State as the defendant. Why? This keeps the case in State court. Why is this essential to winning the game? Because if the suit is in State court, the class counsels can file multiple class actions, alleging similar claims against similar defendants in multiple districts. They do this in search of a judge willing to quickly certify the class. And because the State courts do not have a method of consolidating identical claims like we have in the Federal system, all of those claims remain pending in the various State courts around the country. The filing of multiple class actions in multiple districts gives the class counsel tremendous leverage to play hard ball with the defendant companies. By bringing class action upon class action against a company, the company is left with no other option but to settle. The alternative is to be bled dry by legal fees and face the uncertainty that one of the many courts will destroy the company by delivering a jackpot award against it. While I suppose the class counsel would like to think of it as a game of hardball, to companies it must feel a lot like execution; and it must feel a lot like what it really is: extortion. The real kicker is this: in some cases, many believe the only interests served by these settlements are those of the class counsel. Again, they will walk away with hundreds of thousands and sometimes millions of dollars. And what do the class members recover? Perhaps a worthless coupon. There you have it, a successful gaming of the State tort system by the class action lawyers. This is an intolerable practice and one that the Class A Action Fairness Act will curb. I used to be a plaintiff's attorney. I was a defense lawyer as well. I am in no way indicting the actions of all plaintiff attorneys or class action attorneys. In many cases, plaintiff attorneys play a vital role in protecting the legitimate interests of injured consumers. For example, I supported the efforts of the Castano group of plaintiff attorneys in the class action case against cigarette companies. Despite the fine efforts of many, many plaintiffs' lawyers, the actions of a powerful minority of plaintiffs' attorneys have created the situation we need to remedy with this situation. To demonstrate how class action lawyers have manipulated the tort system to their benefit, let us take a spin at the wheel and see what we come up with. Spin the wheel again and we come to the 2003 Cook County, Illinois court-approved settlement of Degradi v. KB Holdings, Inc. This class action alleged that KB Toys, one of the largest toy retailers in the country, manipulated toy prices to lead customers to believe that they were paying discounted prices. Specifically, the suit alleged that certain products contained an inflated reference price that was marked through in red with a lower selling price next to it. To settle the suit, the company agreed to hold what amounted to a week long sale with a thirty percent discount on selected products. However, the company was not obligated under the terms of the settlement to advertise the discount. As a result, many of the class members eligible to receive the discount were not aware of it until long after the sale was over. How did the game turn out for the class counsel? They won a whopping $1 million in attorneys' fees. And according to an independent analyst, KB Toys actually stood to benefit from the settlement because they were able to drive traffic into the store on the days of the discount. All told, this was not a bad spin at the wheel for all parties concerned. That is, all parties except for the class members--in other words the people who were allegedly injured. If you spin the wheel again you land on the in re Microsoft Litigation Settlement. The wheel has landed on in re Microsoft Litigation Settlement. Microsoft has been involved in multiple antitrust class action alleging that the computer giant used its control of certain programs to price gouge its customers. Ten of the class actions have been settled, including the suit brought in Johnson County, KS. Under the terms of the settlement, class members who purchased Microsoft hardware will receive a $5 or $10 voucher toward the future purchase of particular computer hardware or software products. If these settlement terms some like something less than a big victory for the consumers, wait until you hear about the onerous process they have to endure in order to redeem the vouchers. First, to even receive a voucher, a class member must first download a form from a website established for the purpose of handling the settlements, fill it out and mail it in. Then, to redeem the voucher itself, the class member must mail in the voucher with a photocopy of the original receipt and UPC code. So the class members got some hard to redeem $5 and $10 coupons. Who then came out the big winners in the game? You guessed it, once again it was the class counsel. In these cases, they have received a mind- boggling sum in attorney's fees to the tune of hundreds of millions of dollars. With a spin of the wheel, we come to Ramsey v. Nestle Waters North America. This class action is better known as the Poland Springs Water class action. Let me refer to this Poland Spring Chart--this blue section which has $1.35 million on it. The Ramsey suit alleged that Poland Spring water does not come from a spring deep in the woods of Maine as was advertised. Under the terms of the settlement approved by the Kane County, IL State court, the named plaintiff received $12,000 while the class members received discounts or free Poland Spring water of the next 5 years. The company, which denied any wrongdoing, agreed to enhance its quality control and make approximately $2.75 million in contributions to charities. So in this round of the game, the class members got some free water. What about the class counsel? They were sitting pretty at the end of the game with $1.35 million in attorney's fees. As Roger Parloff put it in the Forbes magazine article entitled ``Springtime for Poland,'' the settlement was ``pretty standard: next to undetectable benefits for us--some discount coupons and whatnot and $1.35 million cash for the plaintiffs' attorneys.'' That is right. Class action settlements have become so abusive that it is now standard and accepted practice for class counsel to receive millions of dollars for getting class members a bottle of water. Now we come to the Register.com settlement, approved by the New York County, New York State Supreme Court, and affirmed by the New York Superior Court in 2003. Register.com is the second largest domain registration company for the Internet. Those wishing to register a domain name through the company may do so for a $35 fee. But if the main name is registered, the company holds the Internet address and redirects the link to a ``Coming Soon'' page featuring promotional advertisements for Register.com and other companies until the domain nameholder develops a Web site of its own. Michael Zurakov, serving as lead plaintiff for the class action, claimed that upon developing his own Web site, Register.com delayed in switching over the purchased domain name to him and continued to redirect the link to the promotional ``Coming Soon'' page for several months to sell advertisements. When the class counsel moved to certify the class, it was estimated that the class was comprised of approximately 3 million members. Under the terms of the court-approved settlement, class members received $5 coupons to use. Each one got a $5 coupon to use with Register.com, assuming that the class member registered with the company again. Meanwhile, the lawyers received $642,500 in attorney fees--lawyer fees. To quote an article appearing in Domains Magazine, ``The munificence of this reward may reflect that fact that the claim, while perhaps not utterly without a shred of merit, was not exactly the most compelling ever heard.'' However weak the suit, the class counsel had a good day at the game, taking home winnings of $642,500, especially compared to the $5 coupons each class member, so-called, got. That was the right to redeem, if they went to Register.com, and registered a name. Cases such as this only further encourage the filing of frivolous claims by opportunistic class action counsel who are solely motivated by quick settlements that benefit only them. Let me go to the Ameritech settlement for $16 million. This is a settlement approved by the notorious Madison County, IL, State court, one of the most abusive settlements I have ever seen. You need to know about Madison County. Madison County is where a lot of these class actions go so they can make demand letters and get settlements as defense cases. Madison County has judges who seem to be in the pockets of the trial lawyers in Madison County who become cocounsel in these cases, and, of course, have an instant entree to the courts, and almost a guaranteed, outrageous award every time they go into court. Most of the time they don't go to court. You will find in the end very few actual cases are filed. But the demand letters are made. And these companies are so frightened over Madison County, because they know they are going to get killed if they go to court, that they almost automatically settle as a result of the demand letters. They settle for what it would cost them to defend these types of cases rather than go through the jackpot justice problem of getting slammed in a jurisdiction where apparently justice is not a measured factor. Here we have the Ameritech settlement approved by the Madison County, IL, State court. This is one of the most abusive settlements I have ever seen. Two suits were filed in Madison County, IL, by the same firm on behalf of customers in Michigan, Ohio, and Wisconsin, alleging that Ameritech wrongly charged customers for a wire maintenance program without informing them that the service was optional. The settlement didn't provide customers with refunds for wrongful charges. Instead, it gave each class member a $5 pay phone card that could only be used at pay phones owned by SBC, the parent company of Ameritech, to make local and limited long distance calls within the State. Many of the class members complained that the cards were worthless to them because there were no SBC pay phones in the area. Other class members complained that the cards were worthless to them either because they did not use pay phones or because the cards contained so many restrictions that they were essentially unusable. This was not exactly a sweetheart deal for these consumers. But how did the class action counsel come out in this round of the game? They had a good spin of the wheel by any measure, winning $16 million in lawyer fees, while the class of people, alleged consumers who were supposedly abused, really got nothing. We can no longer sit idly by and allow abusive settlements to continue. What will S. 5 do to help curb the gaming of our tort system? First, the bill gives the Federal courts diversity jurisdiction over large, national class actions with at least 100 class members seeking an amount-in-controversy of $5 million. They can still bring their suit, but it will be in Federal court where it is much more likely that justice will occur, fairness will occur, and decent treatment will occur. As a result of the provision, large and national class actions may either be originally filed or removed to Federal court, a forum that is better equipped to handle these kinds of cases--and to do so fairly. They are not going to be deprived of their rights. They are just going to have to make their cases, and they are not going to be able to go to Madison County where they will have an automatic win absolutely guaranteed in the eyes of most companies which will be outrageous in nature as a general rule--or an automatic settlement for defense costs--which is as close to distortion as you can get because the companies can't afford to go to court in that particular jurisdiction with the judges the way they are, the attorneys the way they are, and all in cahoots the way they are. Second, S. 5 contains provisions for the review and approval of proposed coupon settlements before a Federal court. It doesn't mean you can't have coupon settlements, but you are sure going to have to get the judge's approval. So these phoney coupons are going to be much fewer and much more far in between. The bill provides that a Federal judge cannot approve a proposed coupon settlement until conducting a hearing with a written finding that the terms of the settlement are fair, reasonable, and equitable to the class members. You would think that would be something every court in the land would want to do, but, unfortunately, we have had far too many of these class actions where that hasn't been the case, or where counsel are the ones who are basically mistreated in the end. Our courts will no longer be used as a rubberstamp for proposed settlements. This provision ensures that the true beneficiaries of a settlement are the class members and not the lawyers who drew up the settlement. It doesn't cost any more money to go to Federal court than it does State court. It isn't a tremendous inconvenience; it is just that you can expect the Federal judges not to be judges who are sustained by financial support by the local lawyers. Third, this legislation requires that attorneys' fee awards be based on the actual recovery of the class members in coupon settlements. In other words, contingency fees must be based on the value of coupons actually redeemed by class members. This will give the attorneys an incentive to ensure the class members actually get something in the settlement they can use. If you are going to get bottles of water, then the attorneys can get fees based upon how many bottles of water are gotten. I don't think many lawsuits would be brought on that basis anymore. Or, if you are going to get a coupon, they can get fees based upon how many coupons are redeemed. Or, in the case of the SBC coupons, they can get fees only to the extent that those coupons are viable and can be utilized, and how many of them are actually requested. Practically speaking, class counsel will no longer look for a quick and hefty attorney fee settlement for themselves in which the class members recover relatively worthless coupons. The time has come for us to put an end to this unfair system. I have heard many of my colleagues on both sides of the aisle decry the state of the current tort system. I ask my colleagues to recognize this bill as the opportunity that it is, an opportunity to end the abuses of the current tort system, or at least to make a start to ending the abuses of the current tort system and restoring confidence in our justice system. Real good lawyers, the honest lawyers, if they bring class action lawsuits, will bring suits of viability, suits that mean something, suits that are deserving of the awards that are given, not suits just for the benefit of the lawyers involved. We have spent literally years now negotiating the provisions of this delicate compromise bill. The time has come to pass it. I might add, this bill has evolved over a number of Congresses. We have negotiated with virtually everybody who has wanted to negotiate on this bill. We have made change after change after change. It is not a major change in our law, but it certainly will bring greater justice in our law and greater fairness and greater treatment in our law. The fact is, we need this bill to remain intact. The House has indicated they will take this bill, if we pass it in its current form, and it will become law. There will be some attempts with amendments that may have merit that I may even like, but this bill is a result of a huge series of compromises that have taken years to achieve. We know if any amendment is added to this bill, it is very unlikely the House will take it. We are faced with the proposition of the need to vote down all amendments on this bill. The distinguished Presiding Officer has a number of amendments he would like to add to this bill, as a distinguished former supreme court justice from the State of Texas, that would improve this bill. But he knows if we are going to pass this bill, we cannot take any amendments, including his. If we are going to take other amendments, we will have to take his. The fact is, we urge all amendments be voted down so we can pass this bill and, hopefully, get it to the House and get it passed so justice can occur. Any Member who stands in the Senate and says consumers are going to be hurt by this bill, that we are not allowing suits to be brought, has not read the bill or is deliberately distorting what is going on. The fact is, suits can be brought, legitimate suits can be brought, there will be awards that will be made in legitimate cases, as they should be, and we all will be better off as a country if we get the tort system so that it does justice, rather than jackpot justice for a few, and in a number of instances I have been citing, for lawyers only. Unfortunately, we have people gaming this system to such a degree that this bill needs to pass. We need to straighten out the mess. I yield the floor.

Mr. HATCH

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

Mr. HATCH. Mr. President, I rise in support of the nomination of Judge Alberto Gonzales to be the next Attorney General of the United States of America. Based on my relationship with him over the last 4 years, I am certain he will make an outstanding Attorney General for all of the people in the United States. Judge Gonzales has the education, experience, and character to make an excellent Attorney General. I know this to be the case because I have worked closely with him virtually every week, and many times every day, for 4 years on many issues, including terrorism and judicial nominations. I can tell my colleagues that he is a good man, and he is more than up to facing this challenging assignment. Before making a few remarks in support of this nomination, I want to again commend the many contributions of Attorney General Ashcroft. We all owe him a debt of gratitude for working so hard over the last 4 years to make America safer for all of our citizens. Unfortunately, but perhaps not unexpectedly, the Gonzales nomination has become as contentious as the nomination of Attorney General Ashcroft. I can only hope that once Judge Gonzales is sworn in as Attorney General, his opponents will work with him in good faith in the interest of the American people. I have been here over the last 2 days as some of my colleagues have gone on at great length about what they misleadingly allege is the Bush administration torture policy and how Judge Gonzales acted to condone torture. Nothing could be further from the truth. They attempt to make him responsible for a memo he did not write, prepared by an office he did not run, in a department in which he did not work, and they claim he gave advice that President Bush did not follow, which, of course, he did not. In fact, the memo Judge Gonzales did not write was written by a person he did not supervise in a department in which he did not work and which was ultimately rescinded in July of 2004 and later replaced by a new memorandum. In his effort to oppose the Gonzales nomination, my good friend from Massachusetts has now even tried to give a new name to the Bybee memorandum. This week, for the first time, the senior Senator from Massachusetts actually called it the Bybee-Gonzales memo. I said it before, and I will say it again. Judge Gonzales did not write the memo. Yet his name is added to Bybee as if he were a coauthor. Somehow holding Judge Gonzales responsible for a memo he received is not fair. Apparently, all Judge Gonzales did was ask a very important question of the entity within the Department of Justice, the Office of Legal Counsel, whose job it is to answer such inquiries. Is that a crime? Just because you ask for information does not mean you will agree with the information you receive. Most importantly, we know the administration's policy. They have been very clear. The President has been clear. Judge Gonzales has been clear: No torture. That is their position. It has always been their position. Treat all detainees humanely, even those such as captured al- Qaida suspects who are not covered by the Geneva Conventions. Regardless of what the rescinded and replaced Bybee memo says about the law, the bottom line is that the President never authorized or acquiesced in the use of torture. He never ordered torture. The February 7, 2002, memorandum that precedes the Bybee memo by months makes that clear. Judge Gonzales also never recommended torture. The President made clear that regardless of whether there might be a theoretical right to override the Convention Against Torture, he was not and is not authorizing torture. Several Senators correctly argued that no one is above the law. I agree with that. Judge Gonzales has also made clear that no man, including the President, is above the law. The President and Judge Gonzales never said the President could override the Convention Against Torture. There has been some discussion at the nomination hearing in the Judiciary Committee and on the floor of the Senate about whether a President's independent duty to preserve, protect, and defend the Constitution of the United States might one day require a President not to enforce a statute enacted by Congress but viewed by the President as unconstitutional. I want to discuss this matter a little further. Although President Bush has clearly not to date exercised this authority--if it, indeed, does exist--some are criticizing Judge Gonzales's views of this power saying they are somehow out of the mainstream, dangerous, or even reflecting a profound disrespect for the rule of law. Let me respond to the arguments made by several Judiciary Committee Democrats who say Judge Gonzales somehow believes the President is above the law, or that the President can pick and choose the laws or standards he will follow. Specifically, my esteemed colleague from Vermont, the ranking minority leader of our committee, has asserted that Judge Gonzales has ``indicated that he views the President to have the power to override our law and, apparently, to immunize others to perform what would otherwise be unlawful acts. This is about as extreme a view of Executive power as I have ever heard. I believe it is not only dead wrong, as a constitutional matter, but extremely dangerous. The rule of law applies to the President, even this President.'' I have looked closely at Judge Gonzales's opinion on this issue, and I can tell you he is being wrongly criticized. Let me talk about Judge Gonzales's position on Presidential authority. It should go without debate that Judge Gonzales has specifically rejected that portion of the August 1, 2002, Office of Legal Counsel memorandum which asserted that the President, as Commander in Chief, possessed the constitutional authority in certain circumstances to disregard the Federal criminal prohibition against torture. He emphatically stated in his confirmation hearing that the memorandum has ``been withdrawn. It has been rejected, including that section regarding the Commander in Chief's authority to ignore the criminal statutes. So it has been rejected by the executive branch. I categorically reject it. . . . [T]his administration does not engage in torture and will not condone torture.'' That is what Judge Gonzales has already said, and every member of the committee knows that. So why would they come here and say he said otherwise when, in fact, that is explicit? I should also point out that Judge Gonzales made it very clear that no man, including the President, is above the law. If confirmed as Attorney General, I have no doubt that he will remain faithful to his oath to defend the laws of the United States. At the same time, however, Judge Gonzales has appropriately recognized that the President, consistent with his oath to preserve, protect, and defend the Constitution of the United States, as well as longstanding historical practice, may in rare circumstances conclude that a statute is unconstitutional. This is not new or even surprising. What is significant to me is that Judge Gonzales recognizes the gravity and limitation of this practice. When my colleagues learn more about Judge Gonzales's views on this matter, I believe most will agree with him. In his written answers to questions posed by Senators, Judge Gonzales noted that a decision to disregard a statute on constitutional grounds is an extremely serious matter and should be undertaken with considerable caution and care and only in extraordinary circumstances. In response to my friend from Vermont, Senator Leahy, Judge Gonzales emphasized: I would be reticent to conclude that statutes passed [by Congress] are unconstitutional and would make every reasonable effort if I am confirmed as Attorney General to uphold and defend those statutes. That is what a good lawyer would do. Similarly, in responding to a question from my learned friend on the committee, the Senator from Illinois, Judge Gonzales stated: For a President to consider whether or not to ignore a particular law as unconstitutional, however, would pose a question of extraordinary gravity and difficulty. I would approach such a question with a great deal of care. During his confirmation hearing, Judge Gonzales rendered his opinion on this delicate issue when he stated the following: I think that . . . the executive branch should always look very carefully with a great deal of seriousness and care about reaching a decision that a statute passed by Congress is somehow unconstitutional and should not be followed. Certainly if I were confirmed, I would take my oath very, very seriously to try to defend any act passed by Congress, but it does appear to me, based upon my review of the history and precedent . . . that Presidents and White Houses on both sides of the aisle have taken the consistent position that a President may choose to not enforce [a] statute that the President believes is unconstitutional. He goes on to say: The President is not above the law. Of course, he is not above the law. But he has an obligation, too. He takes an oath as well. And if Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by Presidents of both parties that he may elect to decide not to enforce that law. Again he goes on to say: Whether or not the President has the authority in that circumstance to authorize conduct in violation of a criminal statute is a very, very difficult question, as far as I'm concerned. And I think that any discussion relating to this line of reasoning would be one that I would take with a great deal of seriousness, because there is a presumption that the statutes are, in fact, constitutional and should be abided by. And this President does not have a policy or an agenda to execute the war on terror in violation of our criminal statutes. That is what he said. These are the statements of a man who understands that no one, including the President, is ``above the law,'' and that history and legal precedent allows, on the most serious and rarest of occasions, a President, if he believes a law is unconstitutional, to veto or even disregard such a law. Judge Gonzales appropriately described what we in this body have known for many years and through many administrations, both Republican and Democratic. What if Congress passed a law that was discriminatory against a particular group of people? Now, I do not think Congress is going to do that, but what if it did? Should a President enforce that law knowing it is unconstitutional? I think most of us would conclude, no, he should not. Now I want to go through the history and precedents that support Judge Gonzales's views regarding Presidential authority. Let me begin by pointing out that the Department of Justice's view that the President, in rare circumstances, may decline to enforce statutes that he finds to be unconstitutional is consistent with the position taken by the Justice Department in administrations of both parties for over 100 years. In the 19th century, both James Buchanan's and Abraham Lincoln's Attorneys General argued that the President possesses the authority, under certain circumstances, to decline to enforce or disregard statutory provisions he views as unconstitutional. In 1860, Attorney General Jeremiah S. Black explained that ``[e]very law is to be carried out so far forth as is consistent with the Constitution, and no further.'' Thus, ``[t]he sound part of it must be executed, and the vicious portion of it suffered to drop.'' In 1861, Attorney General Edward Bates echoed this view when, in answering a question from the Secretary of the Interior as to whether the executive branch had the power ``to examine and decide upon the validity of an act of Congress, and to disregard its provisions,'' he advised that in cases where the conflict between the Constitution and a statute is ``plain and obvious,'' officials in the executive branch ``must disregard [the] statute.'' They may not, Attorney General Bates explained, ``disregard the Constitution, for that is the supreme law.'' In the 20th century, Democratic and Republican administrations consistently maintained that the President, in rare circumstances, may decline to enforce statutes he believes to be unconstitutional. In 1918, Acting Attorney General John W. Davis of the Wilson administration agreed with the advice given by Attorney General Bates more than 50 years earlier that the President may decline to enforce a statute when its conflict with the Constitution is ``plain and obvious.'' My gosh, this is elementary law. I think almost anybody would have to agree with these conclusions, except somebody who just does not know elementary law or does not know constitutional law at all. The Carter administration also took the position that the President may decline to enforce in certain circumstances statutes he viewed as unconstitutional. Carter administration Attorney General Benjamin Civiletti recognized that ``the Executive's duty to execute the law embraces a duty to enforce a fundamental law set forth in the Constitution as well as a duty to enforce the law founded in the Acts of Congress, and cases arise in which the duty to the one precludes the duty to the other.'' He therefore instructed in 1980 that the Education Department could implement regulations that Congress had already disapproved through the use of the legislative veto because the administration believed the statute authorizing the legislative veto to be unconstitutional. Attorney General Civiletti, a Democrat in a Democratic administration, even went so far as to advise that the President could disregard a statutory provision forbidding the executive branch from expending money to implement regulations disapproved by legislative veto. Now, this is very significant because disregarding such a provision would constitute a violation of the Antideficiency Act, which carries with it criminal penalties. The Carter administration's Office of Legal Counsel also took the position that ``the President's duty to uphold the Constitution carries with it a prerogative to disregard unconstitutional statutes.'' It therefore advised that if the unconstitutionality of a statute was certain, then ``the Executive could decline to enforce the statute for that reason alone.'' During the Reagan administration, Attorney General William French Smith also took the position that the President possesses the authority to disregard statutes he viewed as unconstitutional deviations from the separation of powers set forth in the Constitution. In explaining President Reagan's decision to disregard certain provisions in the Competition in Contracting Act that he believed to be unconstitutional, Attorney General Smith stated the President's decision was ``based on the fact that in addition to the duty of the President to uphold the Constitution in the context of the enforcement of Acts of Congress, the President also has the constitutional duty to protect the Presidency from encroachment by the other branches.'' In the George H. W. Bush administration, the Office of Legal Counsel concluded in three separate opinions that the President could choose to disregard statutes that infringed on his constitutional authority. First, in 1990 the Office of Legal Counsel noted that ``[t]he Department of Justice in modern times has . . . consistently advised that the Constitution authorizes the President to refuse to enforce a law that he believes is unconstitutional.'' In another issue that occurred in 1992 which involved a statute that limited the President's ability to issue more than one passport to U.S. Government personnel, the Office of Legal Counsel concluded that the President was ``constitutionally authorized to decline to enforce [it]'' because it ``interfere[d] with the `plenary and exclusive' power of the President to conduct foreign affairs.'' In the Clinton administration, the Office of Legal Counsel in 1994 reaffirmed the view that ``there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.'' In particular, that Clinton Office of Legal Counsel in the Justice Department explained that ``[w]here the President believes that [a statute] unconstitutionally limits its powers,'' ``he has the authority to defend his office and decline to abide by [the statute], unless he is convinced that the [Supreme] Court would disagree with his assessment.'' In the Clinton administration, the Office of Legal Counsel noted that the Department of Justice in the Carter, Reagan, and Bush administrations had consistently advised that ``the Constitution provides [the President] with the authority to decline to enforce a clearly unconstitutional law,'' and we reaffirm that ``this advice [was] consistent with the views of the Framers.'' Let me also point out that the view that the President, in rare occasions, may decline to enforce a law that unconstitutionally restricts his authority has also been consistently embraced by Presidents of both parties. Let me give a few examples. In 1920, President Wilson announced that he would refuse to carry out a provision in the Jones Merchant Marine Act directing him to terminate certain tariff-related treaty provisions because he considered such a requirement to be unconstitutional. President Dwight D. Eisenhower, in signing an appropriations act in 1955 that contained a legislative veto provision, stated that any legislative veto would ``be regarded as invalid by the executive branch of the Government . . . unless otherwise determined by a court of competent jurisdiction.'' Similarly, Presidents John F. Kennedy, Lyndon B. Johnson, Jimmy Carter, and Ronald Reagan later issued similar signing statements regarding the invalidity of legislation containing legislative veto provisions. Moreover, Presidents Richard M. Nixon and Gerald R. Ford announced in signing statements that they would disregard legislative provisions requiring that a congressional committee approve the exercise of Executive authority, and they should have. In fact, according to one historian's survey, it is estimated that from 1789 to 1981, there were at least 20 instances where Presidents had failed to comply with statutory provisions they viewed as unconstitutional. In these cases, Presidents have disregarded statutes that they believed intruded on, among other powers, their Appointments Clause powers, Recommendations Clause powers, removal powers, foreign affairs powers, pardon powers, and powers as Commander in Chief. Such Presidents include James Buchanan, Chester Arthur, Grover Cleveland, William Howard Taft, Woodrow Wilson, Franklin Roosevelt, Dwight Eisenhower, Lyndon Johnson, Gerald Ford, Jimmy Carter and Ronald Reagan. In at least four of these cases, Presidents refused to follow the law because they believed it to infringe their powers as Commander in Chief. In 1860, President Buchanan disregarded a law requiring an Army Corps of Engineers project to be supervised by a particular captain, reasoning that this requirement intruded on his powers as Commander in Chief. Likewise, Presidents Ford, Carter, and Reagan disregarded various provisions of the War Powers Act, arguing that certain consultation, notification, and termination provisions contained in the act infringed upon their constitutional authority as Commander in Chief. Finally, I want to draw particular attention to the holdings of the U.S. Supreme Court which has implicitly agreed with the view that the President, in extraordinary circumstances, has the authority to decline to enforce statutes that he views as unconstitutional when he believes that such statutes intrude upon the constitutional prerogatives of the Presidency. In 1926, the U.S. Supreme Court upheld President Wilson's decision to remove a postmaster from office in violation of a statute requiring him to first obtain the Senate's consent. The Court held that the statute in question constituted an unconstitutional limitation on the President's power to remove executive officers, and thus that the removal of the postmaster without the Senate's consent was legal. This is the teaching of the case of Myers v. United States, 272 U.S. 52 (1926). Most notably, not a single member of the Court in Myers found or even suggested that the President had exceeded his authority or acted improperly by refusing to comply with what he viewed as an unconstitutional statute. As a result, the Clinton administration's Office of Legal Counsel concluded that: [t]he [Supreme] Court in Myers can be seen to have implicitly vindicated the view that the President may refuse to comply with a statute that limits his constitutional powers if he believes it is unconstitutional. More recently, four Supreme Court Justices have explicitly endorsed the position that the President may refuse to obey statutes he believes to be unconstitutional. In the 1991 case of Freytag v. Commissioner, Justice Scalia, in an opinion joined by Justices O'Connor, Kennedy, and Souter, explicitly stated that ``the means [available to a President] to resist legislative encroachment'' upon his power include ``the power to veto encroaching laws, or even to disregard them when they are unconstitutional.'' Consequently, there should be no hesitation regarding Judge Gonzales's responses to and analyses of this area of the law. He would be derelict were he to not acknowledge that there was indeed, in rare circumstances, precedents for a President to find a statute unconstitutional. It is unfair and unjustified to criticize this nominee for his accurate and, as I have just pointed out in some detail, traditional legal analysis of this issue. On top of that, these criticisms have ignored Judge Gonzales's very firm resolve that no man is above the law and that the President himself is not above the law. Sooner or later in this body we have to take people at their word. Having spent 4 years working with Judge Gonzales, I think you can take him at his word. I know you can. I hope that this discussion puts to rest the erroneous suggestion that somehow Judge Gonzales holds some perverted view of the reach of the power of the President. President Bush certainly has never felt the need to assert this authority over the last 4 years which makes it hard to understand why it has become an issue in the Gonzales confirmation. Of course, Judge Gonzales respects the law. Here is a man who was a justice on the Texas Supreme Court, where it was his job every day to uphold the law and mete out justice. He practiced law with one of the most prestigious law firms in the United State, Vinson and Elkins. Here is a man who served honorably for his Country in the United States Air Force. Here is a man who was Texas's Secretary of State. And some of my colleagues say they will vote against him because he does not have the proper respect for the law. I simply do not understand this. We know that Judge Gonzales is fully capable of acting independent of the President. It is not as if this will be the first time Judge Gonzales will be in a job that requires independence from President Bush. When he was a justice of the Texas Supreme Court, he was independent. At that time, he was no longer representing the interests of a Governor, he was representing the judicial system. He was upholding the law for those in Texas. To suggest that he does not know how to exert his own opinions is offensive. He has done it before and he will do it again. To those who criticize Judge Gonzales's responsiveness to questions submitted by the committee, let me just say this. When President Clinton nominated Janet Reno for the position of the next Attorney General, she was presented with 35 questions by the committee. We confirmed her--and I personally voted for her even though she did not respond to any of those questions prior to the vote. In fact, she did not submit her responses until 8 months after she was confirmed. We didn't rake her over the coals. We didn't send her 500 questions that required 250 pages of single-spaced answers. In contrast, Judge Gonzales responded to over 450 questions within 2 business days. He then responded to several series of additional questions over the next weeks. In total, he submitted 250 pages of single-spaced written responses to 500 questions posed by members of the Judiciary Committee. To claim that we do not know enough about his policy views simply is not supported by the voluminous record. We didn't know anything about Janet Reno's policy views. We supported her because she was the nominee of the President and we believed her to be a good person and that she could do the job. There is no excuse for people not supporting Judge Gonzales as the nominee of the President, because he is a good person and he has more than convinced any reasonable person that he can do this job. Judge Gonzales is someone with whom I have worked very closely on many difficult issues during President Bush's first term. I didn't know him before President Bush was elected--at least I don't remember having met him. But I know him very well since he was appointed as White House Counsel. He is a first rate attorney. He is a straight shooter. He has always told it like it is, and he will tell it like it is. He is honest, hard working, intelligent, and experienced and he has said that he understands these principles. He understands the difference between being Attorney General and the White House Chief Counsel. He understands that he represents all the people in America as Attorney General. He came up the hard way and he is his own man. I am proud to know him. I am proud to have worked with him. I believe in the man. I believe he will do a great job. And I believe it is time for us to treat him with a little more respect than we have in the past. I thank my colleague from Michigan. I know he probably wants to speak. I spoke at length. I apologize for that. But I thank him for his graciousness as he always listens to me, and to others as well. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak of the historic Iraqi elections and the President's message last night. This past Sunday, the world watched as millions of Iraqi people headed to the polls to participate in their first free election in more than 50 years. In doing so, the Iraqis defied the terrorists and they risked their lives for what was, for most, the first exercise of democracy in their lifetimes. Not only did the Iraqi people defy the terrorists, but they defied the skeptics--some of whom could be found in Iraq itself, many others throughout the international community, and, disappointingly, even here at home. Many said that the elections were too soon, that the Iraqi people wouldn't dare come out of their homes to vote, and worse, that the Iraqi people weren't ready and didn't desire freedom. Though the votes have yet to be tallied, the millions of Iraqi voters that turned out on Sunday underscore the truism that people desire to be free. And one of the most fundamental political freedoms is the freedom to choose your government. What we saw on Sunday should not surprise Americans: When given the opportunity to be in charge of their own destiny, citizens of all nations will not only turn out in great numbers, but they are willing to sacrifice their own lives for the opportunity to live in a free society. I agree with one of America's most perceptive analysts on the region, Fouad Ajami, who said that on Sunday we bonded with the Iraqi people, because they were doing the most American act: voting. As a strong supporter of our President and his policy in Iraq, I am always encouraged by my fellow Utahns who believe America should stay the course, fight on, and finish what we started. Utahns appreciate the sacrifice and courage of our troops, and those of the Iraqis who deeply appreciate our commitment. Earlier this week, I read that the mayor of Baghdad even wants to erect a statue to President Bush, calling him the ``symbol of freedom.'' When asked if he was concerned about the many threats on his life, Mayor Ali Fadel said, ``My life is cheap, everything is cheap for my country.'' He also said, ``We have a lot of work and we are especially grateful to the soldiers of the USA for freeing our country of tyranny.'' We saw this gratitude again last night when the daughter of a man killed by Saddam Hussein's thugs was hugged by the mother of a Marine who gave his life in Fallujah. Some may erroneously dismiss that as crafted drama. For me, that moment in the State of the Union will forever capture America's mission of spreading freedom in this world. I have tears in my eyes because I remember many years ago receiving notice that my brother had been killed in the Second World War fighting for the freedom that Sergeant Norwood fought for over in Iraq--fighting for the freedoms for Europe and the world. Many of our soldiers risking their lives in Iraq are my fellow Utahans. I am both proud and impressed with their willingness to serve their country and help the Iraqi people establish a free and democratic government. Just yesterday, a group of 100 Utah National Guard men and women, in addition to the 500 that left just a week before, were deployed to bases in the U.S. for training, after which they will move to Iraq, where they will continue to serve for 1 year. We have had Utahans over there serving beyond the term they were supposed to serve. We have had Utahans over there serving beyond the term they were supposed to serve. I know they will serve well and, I pray for their safe return home to their loved ones and families. We all understand that this election was just one more step on the path to a free and democratic Iraq. But, it was an enormously important step. I commend our President, our brave men and women in uniform, and especially, the freedom-loving people of Iraq. President Bush began his speech last night recognizing that he serves at the privilege of the voters, and that, today, an Iraqi government is forming based on the voters' selections, as a new government is in place in the Palestinian Authority, and in Afghanistan. One of the President's greatest virtues, in my opinion, is his humility, and the recognition that we serve at the voters' behest is the fundamental virtue of leadership in a democracy. To recognize that humility is to accept the responsibility that democratic leadership must always be open and transparent and compelling to the electorate. Over the past 4 years, President Bush has often spoken directly and honestly to the American people, about the uncertain threats before us, and about the responsibilities we need to shoulder to defend our freedoms. At the beginning of my remarks I said that one of the most fundamental political freedoms is the freedom to choose your government. An even more basic political freedom is the freedom from tyranny or terror. To be secure from the carbombers, from the dreaded knock on the door in the middle of the night, from the capricious order of the dictator, are necessary for freedom to be sustained. Last night the President again stated his vision of how our security is dependent on expanding the zone of freedom to regions of the world where for too long threats to our security incubated. Iraq will never be fully free until the Iraqi people can provide for their own security, and the President made it plainly clear again last night that our mission will not be finished until we have trained an effective Iraqi force to assume their security. To leave before then, or to announce a departure before we know we have achieved this goal, is to undermine our mission and devalue our sacrifices. Those who call for an exit date before knowing we have succeeded care not for our success nor our security. We know there remains much work to be done. No one called for an exit date before we had victory in World War II, a war where America made enormous sacrifices, including my only brother. No one called for an exit strategy during the twilight years of the Cold War. No one, after the collapse of the Soviet Empire, set an exit date for our efforts to support democratic transition in central and eastern Europe. We build our policies on victory, magnanimity, democracy and freedom While we will not set an exit date, we do have an exit strategy; that is, once we have trained enough security people and police people to take over and to protect and care for their own country, once we have helped to bring up their structure, witnessing that there is a degree of security, peace, and freedom in Iraq beyond where it is now, we are going to pull our young men and women out of there. Let us hope that happens sooner rather than later. Listening to President Bush's speech last night, I know he understands how to protect America's security. Even more, he understands America's role in a challenging world. President Bush has charted a course as bold as he is, and it is incumbent upon the Congress and the American people to support him in this most important effort.

Mr. HATCH

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

Mr. HATCH. Mr. President, I have been listening closely to my colleagues, and I fear that sometimes in this debate we may just be missing the forest for the trees. By focusing almost exclusively on allegations regarding the Convention Against Torture, which is an important issue, to be sure, Judge Gonzales's critics seem to have forgotten that we are debating a nomination for the position of Attorney General of the United States of America. One would think, for example, that all of my colleagues would join me in being supportive of the prospect of our Nation's civil rights laws being enforced by a citizen who grew up on the wrong side of the tracks and has worked his way up the hard way. I am one of many who is pleased at the prospect of Judge Gonzales enforcing our civil rights laws. It was not that long ago that we did not even have a Civil Rights Division at Justice. Today, the public servants there do very important work. Whether they are working to guarantee the right to vote, protecting the freedom of worship, or preventing human trafficking, the 21st century version of slavery, these career lawyers are determined to extend the principle of equality under the law to all Americans regardless of race, creed, or color. Alberto Gonzales shares that commitment to the principle of equal justice under the law. Instead of launching unfounded accusations that Judge Gonzales in some attenuated fashion somehow supports the inhumane treatment of prisoners, one would think we would join together to support Judge Gonzales as the enforcer of our Nation's civil rights laws. As a child of immigrants, the diversity of experience that he would bring to this position is remarkable. His personal story is a testament to the opportunity afforded in this great country by the guarantees of freedom and equality. Through his role in the judicial nominations process as White House Counsel, Judge Gonzales has made it clear that diversity in Government is a desirable goal. I worked with him for 4 years on judicial nominations, so I know firsthand of his thoughts and actions on bringing diversity to our Federal bench. When working on behalf of the American people, a personal appreciation of their everyday trials and dreams can only make one a better public servant. For that reason, I suppose, he explained at the National Hispanic Leadership Summit, that we must ``go the extra mile'' when seeking diversity in public service. Certainly this administration has been doing that, and he has been a pivotal part of that. There is no doubt that Judge Gonzales will bring these experiences to bear at his new job. Lynne Liberato, a partner in the Houston office of Haynes & Boone, and a former president of the State bar of Texas and the Houston Bar Association has said that Judge Gonzales: . . . has always been a person of good judgment, kindness, and moderation. He has experienced the prejudice endured by Mexican Americans. These experiences enhanced his judgment and fueled his compassion. Now this is not lost on groups representing Hispanic Americans. It is certainly not lost on LULAC, the League of United Latin American Citizens, which has strongly supported Judge Gonzales and believes that he will uphold the 1965 Voting Rights Act making certain that all Americans can fully participate in the Democratic process. To me, that is the most important civil rights act in history. Listening to Judge Gonzales's personal story, one discovers a person committed to the idea that if people are only treated equally, the opportunities afforded by America are boundless. His father built their house with his own hands. My dad did ours. His dad worked any job that was available to him in order to support his family. So did my dad. He picked crops as a migrant worker, worked in construction, as my dad did, and was part of a maintenance crew at a rice mill. One gets the sense from listening to Judge Gonzales that his father did these things knowing that if only he and his family were given a fair shake they would find success in America. Let me just say that my father never met Judge Gonzales's father but it sounds to me that they would have had a lot in common given their belief and faith in the American dream. So it was hardly a surprise when Judge Gonzales defended the rights of labor even in the face of the Supreme Court's 2002 decision in Hoffman Plastics Compounds, Inc., v. NLRB. The Court held that employees who present false documents to their employers in order to establish employment eligibility are not entitled to the remedy of backpay when their employers violate Federal labor law. Yet Judge Gonzales insisted that the decision: . . . will not prevent the administration from fully enforcing core labor protections against employers, regardless of the status of their employees. When he made this statement at a meeting of MALDEF, the Mexican American Legal Defense and Education Fund, I am told that one could sense the passion of a person with a genuine appreciation of the noble sacrifice and the hard labor of the working poor. Judge Gonzales is going to lead the Justice Department. His personal commitment to justice is deeply rooted. I know the time pressures that attorneys face and yet Judge Gonzales has never let the demands of his profession or his career stand in the way of his voluntary service to his community. Somehow, in the midst of building a successful law practice and second career as a public servant, he found time to serve as director of Catholic Charities and of Big Brothers Big Sisters. As Lynne Liberato explained in the Houston Chronicle: As a young lawyer, Al was committed to the education of minority kids. While a young associate at Vinson & Elkins he was instrumental in establishing the Vinson & Elkins Minority Scholarship. When asked by local Hispanic leaders to work on a committee to address the issue of the large number of Hispanic dropouts, Al devoted his time to the establishment of the Hispanic Career and Education Day. Both of these programs are still helping kids. Judge Gonzales is committed to civil rights and the establishment of justice for all of our citizens, and so it is unfortunate that some of my colleagues have allowed their opposition to the President's prosecution of the war on terror to cloud their judgment in this case. Judge Gonzales will be our Nation's chief law enforcement officer. As such, he will be called upon to enforce our civil rights statutes and his long track record leaves no doubt that he will do so vigorously. His nomination is a milestone in American history and his confirmation will be remembered in our Hispanic communities for generations. As a proud member of the party of Abraham Lincoln, I remain committed to a serious civil rights agenda. I wish my friends across the aisle would put partisanship aside and recognize that Judge Gonzalez would make a historic contribution to our Nation's continuing struggle to be a more just political community. Some Senators on the other side of the aisle are desperately searching, fishing, and hunting to find something, anything, with which to attack Judge Alberto Gonzales. I reviewed some of the issues yesterday, including their attempt to hold Judge Gonzales responsible for a memo that he did not write, prepared by an office he did not run, in a Department in which he did not work, that provided legal advice that President Bush did not follow. That argument is a very thin brew. But some of my friends across the aisle are still throwing political spaghetti at the wall hoping something will stick. The senior Senator from New York, for example, wants to drag Judge Gonzales into our internal Senate debate over filibusters of majority- supported judicial nominations. In the Judiciary Committee hearing on January 6 and the markup on January 26 and again on this floor yesterday, the distinguished Senator from New York has demanded to know Judge Gonzales's opinion on whether these filibusters are constitutional. Senator Schumer says the answer will ``weigh heavily in my decision whether to support his confirmation.'' Judge Gonzales's answer has been clear and consistent, and it is both clearly and consistently correct. He said in the hearing that this issue is ``an internal Senate matter.'' Now, that is the right answer, because it is what the Constitution says. In article 1, section 5, the Constitution gives each House of the Congress the power to ``determine the rules of its proceedings.'' Judge Gonzales did not remind us of the at least four instances where the constitutional option was utilized in the Senate to stop an unjust, unconstitutional filibuster. No, he did not do that. He just said it is up to the Senate; the Senate should set its rules. That is what the Constitution says. As the Supreme Court unanimously held more than a century ago, in exercising this authority we may not ignore constitutional restraints. That is a given. But both the authority to determine our rules and our responsibilities to meet constitutional standards are entirely ours so long as our rules do not contravene another constitutional requirement. The House of Representatives has nothing to say about our rules in the Senate, and the executive branch does not either, and Alberto Gonzales recognized these principles. Judge Gonzales is not like the professors who opined in hearings on this issue. Nor does he work for the Senate legal counsel or for the Parliamentarian waiting in the wings to give his opinion on any issue any Senator might raise. He is Counsel to the President of the United States of America. He comes before us wearing that hat. He has been nominated to be the next Attorney General of the United States of America. Both positions are in the executive branch, which has no role whatsoever in determining how the Senate sets its internal procedural rules. So Judge Gonzales's answer was not only correct on its face, but it demonstrated his respect for the fundamental principle of the separation of powers. In my view, he correctly believes it is not appropriate to accept any invitation that comes along to speculate and postulate about issues that the Constitution expressly removes from his jurisdiction. In his January 6 hearing, Senator Schumer asked Judge Gonzales about the filibusters, after insisting that the words of the Constitution should be our standard on such issues. Keep in mind these are the first filibusters of judges, of Federal judges, in the history of this country in over 200 years. If the words of the Constitution matter, then nothing could be more compelling than the Constitution's assignment of rulemaking authority right here in the Senate. Judge Gonzales's answer was grounded correctly in the text of the Constitution. For this reason, I was more than a little surprised yesterday to hear the distinguished Senator from New York, Mr. Schumer, say on this floor that Judge Gonzales's principled answer to this politically motivated question suggests that he would not be independent as Attorney General. Give me a break. Frankly, as one who believes that my colleagues across the aisle are using the current rules of the Senate to filibuster judicial nominations in an unwise, unfair, unprecedented, and unconstitutional manner, there may have been some short-term political benefits to have the next Attorney General publicly side with me on this important issue. But Judge Gonzales wisely did not join in this fray, even though it could have been politically advantageous to the President and Republican Senators if he just came out on our side. I asked those who questioned his independence and his ability to separate himself from the political interests of the President, what could be more independent than insisting that the constitutional separation of powers takes precedence over the politics of the moment? This is an odd way to look at independence. On the one hand, Senator Schumer wants Judge Gonzales as Attorney General to be independent from the President at whose pleasure any Cabinet member serves. Then on the other side, Senator Schumer objects when Judge Gonzales, as Counsel to the President, shows a little independence from Senator Schumer by refusing to be pulled into a political dispute entirely outside the jurisdiction of the executive branch. What is even more disheartening to me is that even though the distinguished Senator from New York has worked closely and cooperatively with Judge Gonzales in resolving their differences with respect to filling judicial vacancies in New York, he somehow finds Judge Gonzales to be unfit for the office of Attorney General. Selecting judges has been one of the most vexatious issues that any President and any Senate face. Judge Gonzales has a proven track record of working effectively with Senator Schumer on New York judicial vacancies. I think it is fair to call Senator Schumer one of the most energetic Members of the Senate with respect to judicial nominations, whether you agree with him or not. It seems to me that Judge Gonzales's ability to work with my friend from New York so successfully on these contentious issues bodes well for his abilities to continue to work closely with the Senate once he is confirmed. Several of my colleagues have stood on this floor and suggested-- sometimes even flatly asserted--that Judge Gonzales lacks or will lack the necessary independence from the White House if he were to become Attorney General of the United States of America. I cannot reach into the hearts and minds of those making these statements, but to me this suggestion is unadulterated bunk, sheer hokum. It is asking us to disprove a negative. It is the type of argument that is made when meritorious arguments are unavailable. The charge that Judge Gonzales will not exercise his best judgment on behalf of the American public is groundless. Judge Gonzales is an accomplished lawyer, one recognized by the alumni association at his alma mater, the Harvard Law School, one of the greatest law schools in the country. He practiced at one of the most prestigious and respected law firms in the United States of America, Vinson and Elkins. He was a partner there. As many speakers before me have noted, including Senator Specter and Senator Sessions, a good lawyer is one who knows who his client is and represents him well. What is it about Judge Gonzales that makes some people believe that he is somehow incapable of making the simple distinctions, distinctions made by lawyers every day? Is it prejudice? Is it a belief that a Hispanic American should never be in a position like this--because he will be the first one ever in a position like this? Is it a belief that only liberal Hispanics should be confirmed? Or is it because he has been an effective Counsel to the President of the United States, who many on the other side do not like? Or is it because he is constantly mentioned for the Supreme Court of the United States of America? Or is it that they just don't like Judge Gonzales? I find that that is not possible because you can't help but like him. He is a fine, enjoyable, friendly man. I do not agree with those who insinuate that he cannot handle this job or that he will not do it in the best possible manner. I believe every Hispanic in America who is interested in this country and who understands what is going on here is watching this with a great deal of interest. It is amazing how some can be so in favor of minorities and yet whenever the minority might be--in this case moderate, but representing a conservative President--that for some reason or other, they are just not worthy to hold these positions? It was explained in the Judiciary Committee, Judge Gonzales understands the differences between the role of the White House Counsel and the role of Attorney General. Over the course of our history there have been several individuals who have been close advisers and friends of the President and have gone on to serve successfully as Attorney General. In President Reagan's administration, Attorney General Meese wore both hats with great distinction. Earlier than that, Robert Kennedy, brother of the President of the United States, proved capable of separating his role of serving the American people from his unique relationship with his brother, President John F. Kennedy. Frankly, I doubt that any Attorney General was closer to the President than Attorney General Robert Kennedy was to President John F. Kennedy. The historical record reveals that this issue was a matter of debate and concern by some prior to the confirmation of Attorney General Kennedy. In the same way that Robert Kennedy did not allow his closeness to the President to interfere with his legal judgment, I am fully confident, and I think everybody who knows Alberto Gonzales is confident, that Alberto Gonzales's relationship with President Bush will not impede his ability to serve as a fair and effective Attorney General of the United States of America. In fact, that Judge Gonzales has the President's ear and full confidence can only help achieve the Department of Justice's priorities in the same way that the Department of Justice played a prominent role in the Kennedy administration. I am quite confident that Judge Gonzales will serve the American public and enforce the law in a fair manner for all of our citizens. I am not certain why anybody would suggest that Judge Gonzales is somehow incapable of distinguishing his role as Attorney General of the United States from his role as Counsel to the President. He made it quite clear in his confirmation hearing that he understood the obligations of his new office. Here is what he said: I do very much understand that there is a difference in the position of counsel to the President and that of Attorney General of the United States. . . . As counsel to the President, my primary focus is on providing counsel to the White House and to the White House staff and the President. I do have a client who has an agenda and part of my role as counsel is to provide advice that the President can achieve that agenda lawfully. It is a much different situation as Attorney General, and I know that. My first allegiance is going to be to the Constitution and to the laws of the United States. You know, I think he ought to be taken at his word. We have done it for countless others whom we have confirmed here in this body. But for some reason some on the other side actually believe that he might not be capable of doing this job. Or if he is, then he might not do it properly. Or, if he doesn't do that, then he might be so much in his President's pocket that he won't uphold the law, which he has always done. It is ridiculous. What is the reason for this opposition? I don't know what it is. But I have listed a few things it could be. Judge Gonzales's service on the Texas Supreme Court should prove to anyone interested his ability to be independent from then-Governor and now- President Bush. In response to questions for the record from Senator Kennedy, the distinguished Senator from Massachusetts, Judge Gonzales stated that he ``would enforce the law fairly and equally on behalf of all Americans.'' Senator Kennedy raised all of these torture memoranda as though Judge Gonzales wrote them. He wasn't in the Justice Department. He wasn't in the office of legal counsel. He wasn't the person who wrote them. He didn't represent the Justice Department. But he did have a relationship to the February 7, 2002, memorandum where the President said that all prisoners, whether or not they were subject to the Geneva Conventions, had been treated ``humanely.'' People can have different views on the Bybee memoranda, and other memoranda that have been quoted here as though Judge Gonzales had anything to do at all with them, but Judge Gonzales's opinion, which he gave the President, was that they should be treated humanely. Why do they insist on these points? Why has torture become the big point of debate on the floor of the Senate? There is only one reason: to undermine the President of the United States. Just think about it. Why would we do that publicly as Senators? Why would we do that, especially since we all know that these were rogue elements who have done these awful things? We all condemn them. But why would we do this? Some people think that these statements are so bad, that they give comfort to the enemy. I do not go that far. But why have they used distortions to try to stop Judge Gonzales? Why would they do that? He is a moderate man. He is an accomplished man. He is a decent man. We have had 4 years of experience with him. He has done a great job down there as White House Counsel. He has been up here before every Senator on the Judiciary Committee, eight of whom voted against him, and he accommodated them in every way he possibly could. Sometimes he couldn't do what they wanted him to do, but the fact is he was always accommodating. He was always reasonable, he was always moderate in his approach, and he always listened--exactly what we would hope the Attorney General of the United States would be like. Further, during his opening statement at his confirmation hearing, Judge Gonzales indicated that ``[with] the consent of the Senate, [he] w[ould] no longer represent only the White House; [he] w[ould] represent the United States of America and its people.'' Knowing Judge Gonzales, he meant that. Finally, Judge Gonzales explained at his hearing that his responsibility as Attorney General would be to ``pursue justice for the all the people of our great Nation, to see the laws are enforced in a fair and impartial manner for all Americans.'' I believe it is clear that Judge Gonzales understands the obligations associated with the position of Attorney General of the United States, and he is uniquely qualified to follow in the footsteps of the able and distinguished men and women who have preceded him. I know the other side does not want any Republican on the Supreme Court of the United States of America. I cannot blame them for that. We do not share the same philosophy, by and large, as the liberal philosophy they espouse. On the other hand, in times past Republicans have confirmed liberals to the U.S. Supreme Court without putting them through these types of machinations that have despoiled their character. We have supported the President of the United States. We have not filibustered judges. We did not smear great legal intellectuals like Robert Bork. I can name many others, including the current Chief Justice of the United States, one of the finest men who ever served in the judiciary of this country, who had a distinguished public service record before his nomination but was smeared during the Judiciary Committee hearings and on the floor of the Senate. My party did not resort to these tactics. I would be disappointed if we did. Here we have a chance to confirm a man who is a decent man, who is of Hispanic origin, the first Hispanic ever to be nominated to one of the big four Cabinet positions. Why can't my friends who oppose him recognize that and recognize the historic nature of this nomination, recognize his great ability, recognize his decency, recognize his fairness in working with them, and recognize that this man will make a difference for all Americans, as he has as White House Counsel? Is the hatred for the President so bad they transfer it to somebody as decent as Judge Gonzales after years of complaints about John Ashcroft? He has been a wonderful Attorney General, in my eyes. After years of complaining about him because he is too conservative, all of a sudden you have a moderate Hispanic man who has a distinguished public service record, who has a distinguished career as a lawyer, who came from poverty to the heights of strength and success in this greatest of all nations, and he too gets treated like dirt. And I personally resent it. Let me conclude these remarks by restating my support for Alberto Gonzales. He has the education, he has the experience, and he has the character to be the next Attorney General of the United States, and he deserves the support of the Senate. I believe that those who vote against him--I hope nobody does, I would be so pleased if nobody did, but those who vote against him, I believe people throughout this country have to look at what they have done with disdain, with concern, and with intelligent eyes and determine why they voted against somebody of this quality. Why would they make some of these arguments that are clearly fallacious with regard to Judge Gonzales? I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, reserving the right to object, and I will not object.

Mr. HATCH. I understand. I ask unanimous consent that I immediately follow the Senator from California.

Mr. HATCH. Mr. President, I have heard the remarks of my distinguished colleagues, and I want to say I have some grave disagreements with some of the things that have been said. I rise in support of the President's nomination of Alberto Gonzales to be the next Attorney General of the United States. We all know who Judge Gonzales is. Today is a remarkable day in our country's history and a momentous day for the American Hispanic community. Today, we are considering the nomination of Judge Alberto Gonzales who, when confirmed, will become the first Hispanic-American Attorney General of the United States. That is very significant. He will be eighth in line of succession to the Presidency. In 1988, President Ronald Reagan appointed the first Hispanic Cabinet member, Secretary of Education Lauro F. Cavazos. Two years later, President George Herbert Walker Bush continued to make history by appointing the first woman and first Hispanic Surgeon General of the United States, Antonia C. Novello. Dr. Novello used to work with me as a fellow before she succeeded Dr. Koop as Surgeon General of the United States. Just last week, the Senate confirmed President Bush's nomination of Carlos Gutierrez as Secretary of Commerce. And today, President George W. Bush sets yet another first. As Chairman of the Republican Senatorial Hispanic Task Force, I am well aware of the significance of this appointment and this moment in our Nation's history. Every Hispanic American in this country is watching how this man is being treated today and throughout this debate as we discuss the nomination. This nomination is just that important. I know Judge Gonzales's life story. It has been laid out many times in the media and was described during the confirmation hearing. This is a story that bears repeating in the Senate. He is an American success story. He shows that no matter where anyone comes from, in America, there is no limit on how far they can go. As many Americans know, Judge Gonzales was the second of eight children. His father and two uncles built a small two-bedroom home with no running hot water in Humble, TX, where all 10 members of this family lived, a truly humble family. His parents had no more than a few years of elementary school education, and his father was a migrant worker. Growing up in a working poor household, his family never even had a telephone. In a story familiar to many whose parents and grandparents were immigrants, his parents knew the importance of an education for their son. After serving honorably in the U.S. Air Force, Judge Gonzales became the first person in his family to go to college. He attended the Air Force Academy and graduated from Rice University and Harvard Law School. Since then, Judge Gonzales has worked at one of the finest law firms in Texas and this country, Vincent & Elkins, he served for 3 years as the general counsel for the Governor of Texas, served as secretary of state for the State of Texas, served as a justice on the Texas Supreme Court, and became as we all know, White House Counsel for President Bush. Yet his resume tells only part of the story. His accomplishments include many professional and civic honors. He was voted the Latino Lawyer of the Year by the Hispanic National Bar Association. He was inducted into the Hispanic Scholarship Fund Alumni Hall of Fame. He has received various awards from Harvard and Rice Universities, the United Way, the United States-Mexico Chamber of Commerce, the League of United Latin American citizens, just to name a few. He has been a pillar of every community in which he has lived. Despite these incredible personal achievements, Judge Gonzales remains one of the most unassuming, humble, and decent individuals I have ever had the privilege of meeting, let alone work with in government. I know firsthand that he is well qualified to be Attorney General of the United States, and I commend the President of the United States on his choice of such an outstanding individual. I am not the only person to think this. Judge Gonzales has the support of the National Council of La Raza, one of the largest Hispanic organizations in the country. He has the support of the Hispanic National Bar Association, the Latino Coalition, the League of United Latin American Citizens, the National Association of Latino Leaders, Congressional Hispanic Conference, the United States Hispanic Chamber of Commerce, the Hispanic Alliance for Progress Institute, the National Association of Latino Elected and Appointed Officials, the National Association of Hispanic Publishers, Minority Business Roundtable, the Texas Association of Mexican American Chamber of Commerce, the Congress of Racial Equality, the Jewish Institute for National Security Affairs, the Fraternal Order of Police, the National District Attorneys Association, the FBI Agents Association, the Recording Industry Association of America--just to mention a few. Anyone who says he does not have the vast majority support of all Hispanics in this country and most all other people who understand decency and honor just do not know what they are talking about. He has garnered support from both Democrats and Republicans. The former Secretary of Housing and Urban Development, under President Clinton, Henry Cisneros, wrote an article in the Wall Street Journal in January praising Judge Gonzales, and Senator Ken Salazar, the newly elected Democrat from Colorado, testified in favor of Judge Gonzales in our Judiciary Committee. I commend Senator Salazar for sharing his opinion of the nominee. Judge Gonzales is also supported by the former Solicitor General of the United States of America, Ted Olson, as well as members of the Heritage Foundation, the conservative institution in Washington. The philosophical, religious, and ethnic diversity of this support speaks volumes of his qualifications. Let me take a few minutes to read from some of these letters. Janet Murguia, president and CEO of the National Council of La Raza, the largest constituency-based Hispanic organization, has given a strong recommendation of Judge Gonzales. Not only is Judge Gonzales a compelling American success story, it is also clear that few candidates for this post have been as well qualified. He has served as Texas' secretary of state, as a member of the Texas Supreme Court, and as White House counsel, and has been deeply involved in his community throughout his life. We are encouraged that in response to questioning, Judge Gonzales agreed to review the Administration's positions on sentencing reform and articulated some reservations about the practice of ``deputizing'' local police to enforce immigration laws. If confirmed, Gonzales would be the first Hispanic attorney general and the first Latino to serve in one of the four major cabinet posts--Secretary of State, Treasury, Defense, and Attorney General. While we have had our policy differences with the Bush Administration, we are confident that Judge Gonzales is someone who will serve his country with distinction and who will also be accessible and responsive to the concerns of the Hispanic community. We urge the Senate Judiciary Committee and the U.S. Senate to confirm him as soon as possible. She speaks for the vast majority of Hispanics in America. Similarly, the Latino Coalition strongly supports Judge Gonzales. In a press release dated November 11, 2004, it states: Judge Gonzales is the perfect choice for the next U.S. Attorney General. The Judge has been an instrumental part of the legal efforts to boost the war on terrorism and keep America safe and secure, while upholding the highest standards in government ethics. Judge Gonzales brings to the Office of the U.S. Attorney General a distinguished legal record based on his many years of work in the public and private sector. He also brings a unique perspective and human experience understood only by those whose families have migrated to a foreign land with little resources and not knowing the language. It is for this cultural depth and his unique legal qualifications that we urge the Senate Judiciary Committee and all members of the U.S. Senate to put partisan politics aside so that Hispanics are no longer denied representation in this important post. . . . We have been honored to work with the Judge for many years now, and have personally witnessed his ability to unite people of all different backgrounds to get things done. He is an extremely qualified and intelligent attorney who will serve with distinction and make every Latino proud. We endorse his nomination without any reservations. He will make every Latino proud. He has up to this time everywhere he has been. He has set a good example and has done what is right in his government work. The FBI Agents Association wrote to the committee last December: We write to express the support of the FBI Agents Association for the nomination of Judge Alberto Gonzales for Attorney General of the United States. . . . We believe Judge Gonzales' practical life experiences, his legal training and education, his judicial expertise and his close proximity to and involvement with many of the most difficult jurisprudence issues associated with the ongoing war against terror make him a nominee fully worthy of confirmation by the U.S. Senate. We are also confident that Judge Gonzales' experience in and firm appreciation of the issues in today's national criminal justice system will serve him and the nation well as the next Attorney General. I can guarantee the FBI Agents Association does not send recommendations like that in the case of people who are not worthy. The National District Attorneys Association also expressed strong support for Judge Gonzales in a letter dated December 17, 2004. This is a bipartisan association of all the national district attorneys of the country: During Judge Gonzales' tenure as Counsel to the President our leaders have had frequent opportunities to meet with him and to discuss with him issues challenging our public safety. Through these meetings we have come to recognize both his commitment to protecting the American public and to ensuring closer working relationship between federal, state and local law enforcement organizations. With the increasingly complex challenges facing us in our fights against both organized gangs and terrorists he brings the skills and legal acumen necessary for this position of responsibility. We are confident that his confirmation will enhance the safety of our citizens from threats, domestic and international, while safeguarding those liberties that we all treasure. As leaders for the only national organization representing the local prosecutors of this nation we have the utmost confidence in his ability to master this most challenging position and pledge to do everything within our ability to ensure that the working relationship between the Department of Justice and America's prosecutors grows even stronger. Finally, let me read excerpts from a Wall Street Journal article written by Henry Cisneros, who was the Secretary of Housing and Urban Development in the Clinton administration and was the mayor of San Antonio for 8 years. This is what Mr. Cisneros had to say: The last four years have posed harrowingly difficult dilemmas, especially those related to the 9/11 terrorist attack on our nation and the military and security actions that resulted from it. There have been successes and failures, there have been good judgments and misjudgments-- all in the context of war, that is, a context of military organizations under stress, of imperfect information, of life-and-death concerns. The American people decided in November, for better or for worse, to see this conflict through. It would be unseemly at this juncture to use the forum of a Senate confirmation process to try to find a scapegoat for a war that is at a very difficult stage. In any event, Alberto Gonzales has done nothing to alter the basic facts that he is a seasoned legal professional, is needed by the president, and is a person of sterling character. Mr. Cisneros goes on to say: As an American of Latino heritage, I also want to convey the immense sense of pride that Latinos across the nation feel because of Judge Gonzales's nomination. I had the high honor of serving in a president's cabinet, as have five other American Hispanics, but we all served in what might be called ``outer circle departments.'' The historic character of this nomination is that Judge Gonzales has been nominated to one of the big four--State, Defense, Treasury, and Justice. This is a major breakthrough for Latinos, especially since it is so important to have a person who understands the framework of legal rights for all Americans as attorney general. Judge Gonzales has demonstrated a nuanced understanding of the struggles people face as they try to build a life for their families in our country. Perhaps that appreciation comes from remembrances of his own family's struggle. In the Commencement Address at his alma mater, Rice University, earlier this year, he recalled: ``During my years in high school, I never once asked my friends over to our home. You see, even though my father poured his heart into that house, I was embarrassed that 10 of us lived in a cramped space with no hot running water or telephone.'' As an aside, I understand that. We had a humble home like that. We did not have indoor facilities at first. I knew what it was like to not be ashamed of my home but not wanting to bring people there. I understand Judge Gonzales. I was there, too. I will continue on with Henry Cisneros's comment. Remember, he was a Cabinet member in the Clinton administration, and he strongly supports Judge Gonzales. This is what Mr. Cisneros said: On another occasion, [Judge Gonzales] said: `` . . . my father did not have many opportunities because he had only two years of formal schooling, and so my memories are of a man who had to work six days a week to support his family. . . .He worked harder than any person I have ever known.'' That is what Judge Gonzales said. Mr. President, this is the person who my Democratic colleagues are trying to defeat--a man who has bipartisan support throughout the country, and big-time support; a man who represents the American dream to so many of us; the man who deserves to be the next Attorney General. But to listen to these comments by our colleagues--and I think over the next couple days to listen to them--they act as if somebody has to be perfect to be a Cabinet member in any administration. But certainly in the Bush administration, they must be perfect. Not only do they say that, but you will find there are many distortions of his record. They take things out of context and blow them out of proportion. I worked closely with Judge Gonzales during President Bush's first term, and I have found him to be a man of his word. Unfortunately, in a misguided attempt to bring this fine individual down, some people, somehow, blame Judge Gonzales for the abuses that have occurred at Abu Ghraib. As many Americans, I, too, am concerned about the alleged abuses of detainees apprehended in the war on terror. When I saw the pictures in the media of detainees at Abu Ghraib, I was simply disgusted. I think all decent Americans were disgusted. They understand the abuses that occurred there were repugnant and inconsistent with our renewed commitment to promoting liberty and democracy. There is absolutely no debate about that. In addition, there are more allegations in the media recently about individuals being subjected to water-boarding, or suffering from cigarette burns, and other acts of physical intimidation that must be taken seriously as well. I take these allegations very seriously--very seriously. Regardless of what the precise legal definition of ``torture'' is, when you see or hear about acts of physical abuse of prisoners, even in a time of war, it is very disturbing. It should be obvious enough that it does not need to be said, but I condemn the torturous acts that occurred at Abu Ghraib. The President condemns torture. My colleagues on both sides of the aisle condemn torture. Make no mistake about it, Judge Gonzales condemns torture. Judge Gonzales must have said that dozens of times before and after his hearing, both orally and in writing. He opposes torture, period. He could not have been clearer on this issue. To have his record distorted is hitting below the belt. There are many Americans who believe someone in the Government should be held responsible for these abuses. I agree. All of the individuals responsible for those atrocious acts should be punished. And they are being punished. The military immediately investigated. They have immediately prosecuted. Some of them have been sentenced, and the others will be. There is no question about it; they should be punished. However, these convictions do not get as much attention from the press as the photos themselves. The fact is, the convictions do not provide the political ammunition for those who oppose the President and this administration. Nonetheless, just earlier this month, Charles Graner was convicted for his role in detainee abuse. He was sentenced to 10 years of imprisonment. He also received a military demotion and was dishonorably discharged, as he should have been. He is not the only person who has been convicted. The military has disciplined four members of a special operations unit for abusing detainees in Iraq, including at least one case of the use of a Taser stun gun. It has also subjected two individuals to administrative punishments and four others to nonjudicial punishments. The Department of Defense has completed eight investigations and has three additional ongoing investigations. Lest we forget, the scandal of Abu Ghraib was the subject of an internal Government investigation well before the media broke the story. I am sure that as time goes on, there will be more investigations and more prosecutions of these people who acted as non- Americans, as far as I am concerned. In the global war against terrorism, American soldiers and employees must conduct themselves honorably, and we will insist they do so--and so has Judge Gonzales insisted that they do so. Congress takes this oversight role very seriously. I was a cosponsor to S. Res. 356, which we passed last May, condemning the abuse of Iraqi prisoners at Abu Ghraib prison, urging a full and complete investigation to ensure justice is served, and expressing support for all Americans serving nobly in Iraq. In August, the Defense Department Appropriations Act became law. It reaffirmed Congress's view that torture of prisoners of war and detainees is illegal and does not reflect the policies of the U.S. Government or the values of the people of the United States. In December, the Consolidated Appropriations Act for Fiscal Year 2005 became law. This law includes a prohibition on the use of funds by the Justice Department to ``be used in any way to support or justify the use of torture by any official or contract employee of the United States Government.'' In addition, at least five committees have held hearings on Abu Ghraib in the 108th Congress. Since May, the Armed Services Committees of both Houses took testimony from numerous Defense Department officials. Secretary Rumsfeld himself testified four times. Other witnesses include GEN Richard Myers, Chairman of the Joint Chiefs of Staff; Acting Secretary of the Army, Les Brownlee; U.S. Army Chief of Staff, GEN Peter Schoomaker; and Central Command Deputy Commander, LTG Lance Smith. The committees Interviewed General Taguba, the author of the Taguba Report, which investigated the photos of abuse at Abu Ghraib. They held hearings and heard testimony from general officers who conducted a formal investigation into the allegations of abuse, known as the Fay investigation and from James Schlesinger and Harold Brown, who were appointed by the Secretary of Defense to head the Independent Panel to Review DOD Detention Operations--otherwise known as the Schlesinger Report. The Senate also interviewed the Army Inspector General about his investigation, and interviewed Stephen Cambone, Undersecretary of Defense for Intelligence. The Senate Armed Services Committee took testimony from Central Command Commander General John Abizaid, Lieutenant General Ricardo Sanchez, who commanded the Multi-national Force-Iraq; Major General Geoffrey Miller, Deputy Commander for Detainee Operations in Iraq, and Colonel Marc Warren, Army Judge Advocate General. Despite all this, there are some people who believe that not enough has been done. And I respect their views. But it seems that now, a small but vocal group of those individuals have attempted to create an almost mob mentality--looking for any high level official in the Bush administration to take the blame. And Judge Gonzales has become the favorite scapegoat for some. People who cannot even bring themselves to speak optimistically about our prospects in Iraq in the days before and now after the day of the historic election itself, surely have no qualms about creating a scapegoat out of Judge Gonzales. This man--a committed public servant, a veteran of our Armed Forces--deserves better. Let us not lose focus here. Judge Gonzales has been nominated to be the Attorney General--not the Secretary of Defense. And when these abuses occurred, Judge Gonzales was not the Secretary of Defense. It was not his responsibility to tell soldiers which specific interrogation tactics to use. In fact, it was not even his responsibility to provide legal advice to the Secretary of Defense on torture or any other subject. Providing legal advice to executive branch departments and agencies is the role of the Department of Justice. His primary role was to provide legal advice to the President of the United States and other White House officials. Now if Judge Gonzales is confirmed, it will become his responsibility to become the Nation's principal law enforcement official and help see that each American receives equal justice under the law. But it is inappropriate and unfair to blame Judge Gonzales for legal advice given by somebody else in the Department of Justice years before he was even nominated to work in the White House. For example, some opponents of Judge Gonzales have gone on at length about the so-called Bybee memo. Before I get into the specifics of this memo, let me bring you back to the months following September 11, 2001. All of us here remember exactly where we were when the planes crashed into the World Trade Center towers and the Pentagon and in Pennsylvania that morning. None of us will forget the feelings of vulnerability we all felt in the days, weeks and months following the attack. President Bush has rightly made preventing another terrorist attack on U.S. soil his No. 1 priority. I know that my fellow citizens in Utah share the President's priorities when it comes to fighting terrorism. In fact, the first major international event that took place after 9/11 was held in Salt Lake City when my community hosted the winter Olympic games. Here in the Senate, a mere month after the attack, we were terrorized by a letter sent to Senator Daschle's office containing anthrax. The distinguished ranking member of the Judiciary Committee was mistreated and threatened. Staffers, workmen, and visitors stood in line all day to be screened for anthrax, and hundreds of individuals took strong antibiotics as a preventative measure. I recall that time period where every day you would wake up wondering whether something terrible was going to happen that day. The Bush administration, too, was facing difficult questions. We all thought that another terrorist attack could come at any moment, and it would be incredibly difficult to predict when or where such an attack would occur because our enemy acted in a clandestine manner. They dressed as civilians, not as soldiers. They did not attack our military but tens of thousands of innocent civilians, urban centers, and government buildings. These individuals did not come from one specific country. They were a fanatic, ideological enemy with international reach. They could be anywhere. And they had the money to finance their terrorist activities. It was during these early months that the administration explored what its options were and how they should act in confronting this unique enemy, one that fought not in uniforms on battlefields, not for a particular nation but in blue jeans and American civies. Some are claiming that the President relied on the Bybee memo in formulating his policy with respect to interrogation techniques at Abu Ghraib. Let's take a look at these documents. First, the so-called Bybee memorandum was not written by Judge Gonzales, in spite of the implications by some. It was written by Jay Bybee who, at that time, was the Assistant Attorney General of the Office of Legal Counsel at the Department of Justice, and is now a distinguished judge on the Circuit Court of Appeals for the Ninth Circuit. That is why some people call it the Bybee memo. They could not call it the Gonzales memo. It is not the Gonzales memo, has never been the Gonzales memo. The memo is dated August 1, 2002. Remember that date. The memo addresses the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. It does not analyze the Geneva Convention. Let me just mention that this is a scholarly piece of analysis. Regardless of whether you agree or disagree with its legal conclusion, there can be little doubt that this 50-page, single-spaced document with 26 footnotes is a thoughtful and thorough analysis. Let me also say that this memo does not tell the President to use torture in Iraq. Rather it tries to define what torture is from a purely legal perspective. Let's compare the Bybee memo with the President's actual memorandum on the treatment of detainees. The subject of this memo is the humane treatment of al-Qaida and Taliban detainees. The President's memo was written on February 7, 2002. This is 6 months before the Bybee memorandum. So there is absolutely no way the President could have relied on the August 1, 2002, Bybee memo because it did not exist at the time he issued his definitive February 7 directive, the one that he and others followed. Let me be clear: I am not saying the Justice Department never considered the Convention Against Torture prior to August 1, 2002. In fact, given the voluminous length of the analysis, it probably took some time to write. But to suggest this Bybee memo, which addresses a different statute, a statute that is nowhere mentioned in the President's memorandum, was indispensable in crafting the President's decision is simply false for the simple reason it did not exist at the time. What some of my Democratic colleagues are trying to do is hold Judge Gonzales responsible for a memorandum he did not write and that came from the Justice Department which he did not direct. The Bybee memo asks an important question: What is torture? This is a critical question to ask in the middle of a war on terror in which our enemies have made it clear that they will not observe the Geneva Conventions or any other rule of civilized conduct. Judge Gonzales received the Bybee memo, but some of my friends across the aisle are almost suggesting that he actually wrote it. He did not. He had nothing to do with it. In fact, they criticize him because they believe he did not object to the memo at the time he received it. But the fact is, we do not know what his private legal advice was to the President on the Bybee memo because that advice is privileged advice. And Presidents do not want their counsel divulging privileged advice. In fact, we should think twice before we ever proceed down the path of attempting to require the White House Counsel to divulge to the Congress in an open hearing precisely what legal advice he gave to the President on an inherently sensitive matter such as those that directly relate to national security. When all is said and done, Judge Gonzales did not supervise Jay Bybee. He did not supervise Attorney General Ashcroft. It was not his job as White House Counsel to approve of memos written by the Justice Department. And that memo of February 7 said the detainees should be treated humanely. That was the President's position. I have a lot more I want to say about this, but I notice the distinguished Senator from New York is here and wanted to say a few words before we break for lunch. I will interrupt my remarks. I couldn't interrupt a few minutes earlier. I will come back to this subject. I hope the Chair will allow the senior Senator from New York to have a few extra minutes. I would be happy to sit in the chair, if needed. But I will relinquish the floor and ask unanimous consent if I can finish my remarks after the luncheon; is that possible?