Orrin Hatch

Mr. HATCH

Mr. HATCH. I have also heard some say that this statute could be used to prosecute someone for camcording a DVD at his home. Is this a fair concern?

Mr. HATCH. Do the users of hearing aids, cell phones or similar devices have anything to fear from this statute?

Mr. HATCH. It appears that there is no fair use exception to this provision. Is that correct?

Mr. HATCH. Does the Senator from Texas agree?

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that floor privileges be extended to the following staffers for the duration of debate on S. 2062: Harold Kim, Kevin O'Scannlain, Ryan Triplette, Brendan Dunn, Levi Smylie, and Kevin Madigan from the Judiciary Committee.

Mr. HATCH

Mr. HATCH. Madam President, I rise today to support passage of S. 2192, the Cooperative Research and Technology Enhancement Act of 2004 or CREATE Act. I am pleased that the Senate is considering this important patent legislation. I would like to thank Senators Leahy, Kohl, Grassley, Feingold and Schumer, for their work on, and cosponsorship of, this bill. The CREATE Act responds to an important need of our inventive community. This act will encourage greater cooperation among universities, public research institutions and the private sector. It does so by enabling these parties to share freely information among researchers that are working under a joint research agreement to develop new technology. It also allows these entities, particularly universities, to structure their relationships with other research collaborators in a more flexible manner. The CREATE Act has benefited significantly from the commendable work of our colleagues in the House. In particular, we take note of the House Report, H. Rep. 108-425, which accompanied passage of H.R. 2391, the House counterpart of S. 2192. The committee notes that the House report addresses a number of important issues related to the implementation of the act, and provides necessary guidance to the Patent and Trademark Office as to its responsibilities under the legislation. In the interest of further transparency and guidance, and importantly to prevent the public from being subject to separate enforcement actions by owners of patentably indistinct patents, we offer the following guidance on some key aspects of this legislation. We believe that this guidance is entirely consistent with the policy objectives of the House Report, but explicate some of the most critical and complex aspects of the intended operation of the CREATE Act where multiple patents issue on the patentably indistinct inventions. As the House report correctly notes, the CREATE Act will enable different parties to obtain and separately own patents with claims that are not patentably distinct--in other words, where the claim in one patent would be ``obvious'' in view of a claim in the other patent. The courts and the U.S. Patent and Trademark Office term this ``nonstatutory'' and ``obviousness-type'' double patenting. This is not the first time that Congress has amended the patent laws in a manner that has expanded opportunities for double patenting. The Patent Law Amendments Act of 1984 first created the opportunity for double patenting for patents issued to different inventors that were owned by one entity or which were commonly assigned. In the legislative history for the Patent Law Amendments Act of 1984, Congress indicated its expectation that any newly created opportunities for double patenting would be treated no differently than double patenting for patents issued to the same inventor. We do the same today with respect to the remedial provision in the CREATE Act, but discuss the form of disclaimer that is required of the patent owner whenever double patenting exists. At its core, the double patenting doctrine addresses the situation where multiple patents have issued with respective claims in the different patents that meet one or more of the relationship tests set out by the courts. Double patenting can arise when the two involved patents are determined not to relate to independent and distinct inventions. It can also arise if a claim in a later-issued patent would not be novel with respect to a claim in a first-issued patent. A third type of double patenting--and perhaps the most common--is where a claim in a later-issued patent is obvious in view of a claim in a first- issued patent. Whatever the relationship that forms the basis for the double patenting, the current principles governing double patenting should be applied to all such situations involving the issuance of double patents where the provisions of the CREATE Act apply. The double patenting doctrine exists as a matter of policy to prevent a multiplicity of patents claiming patentably indistinct inventions from becoming separately owned and enforced. Thus, it applies to situations where multiple patents have issued, even if the patents are filed on the same day, issue on the same day and expire on the same day. All that is required for double patenting to arise is that one or more claims in each of the involved patents is determined to represent double patenting under established principles of law. The double patenting doctrine can invalidate claims in any later or concurrently issued patent if those claims are determined to represent double patenting with respect to any of the claims in a first-issued patent. For clarity, any later or concurrently issued patent that creates double patenting can simply be termed a ``patentably indistinct patent'' with respect to the first-issued patent. Invalidity of the patentably indistinct claims under the doctrine of double patenting can be avoided, however, if an appropriate disclaimer is filed in the patent containing those claims. Under existing practice in the U.S. Patent and Trademark Office, the disclaimer must be filed in the patent with the patentably indistinct claims and must reference the first-issued patent against which the disclaimer applies. Thus, the disclaimer only affects the ability to enforce the disclaimed patent, and historically has not affected the enforceability of the first- issued patent against which the disclaimer has been made. Accordingly, under existing double patenting principles, if the indistinct patent becomes separately owned, i.e., such that it can be separately enforced, the disclaimed patent is rendered invalid in accordance with the terms of the required disclaimer, while the first-issued patent's enforceability is unaffected. Patents issued after enactment of the CREATE Act will be enforceable in the same manner and to the same extent as when patents are issued to a common owner or are subject to common assignment. One modification of existing disclaimer practice, however, is needed for double patenting to achieve its policy objectives where the CREATE Act applies. The CREATE Act will now permit patents with patentably indistinct claims to be separately owned, but remain valid. Heretofore, this separate ownership would have rendered the indistinct patent invalid. To protect the public interest, these separately owned patents must be subjected to a new form of disclaimer that will protect the public against separate actions for enforcement of both the first-issued patent and any patents with claims that are not patentably distinct over the claims of the first-issued patent. Accordingly, in every situation where double patenting is created based upon revised section 103(c), the patentably indistinct patent must include a disclaimer that will require the owner of that patent to waive the right to enforce that patent separately from the first-issued patent. The disclaimer also must limit, as is required for all disclaimers related to double patenting, the disclaimed patent such that it can be enforced only during the term of the first-issued patent. Additionally, the disclaimer required for the valid issuance of a patentably indistinct patent pursuant to the CREATE Act must apply to all owners of all involved patents, i.e., the owner of the patentably indistinct patents as well as any owners of any first-issued patents against which the disclaimer is made. In order for this to be the case, the CREATE Act effectively requires parties that separately own patents subject to the CREATE Act to enter into agreements not to separately enforce patents where double patenting exists and to join in any required disclaimer if the parties intend to preserve the validity of any patentably indistinct patent for which a disclaimer is required. To give effect to this requirement, the disclaimer in the patentably indistinct patent must be executed by all involved patent owners, as the right to separately enforce the first-issued patent apart from the patentably indistinct patent cannot be avoided unless the owner of the first-issued patent has disclaimed its right to do so. If an enforcement action is brought with respect to a patentably indistinct patent, but the owner of the first-issued patent was not a party to the disclaimer, and had not disclaimed separate enforceability of the first-issued patent once an enforcement action had been commenced on the indistinct patent, the owner of the first-issued patent could not legally be prevented from bringing a later action for infringement against the same party absent disclaiming the right to do so. Thus, the disclaimer of the separate enforceability of an indistinct patent cannot be assured unless the owner of a second indistinct patent has an agreement with the owner of the first-owned patent prohibiting the right of separate enforcement. The CREATE Act will not require the owner of a first-issued patent or an indistinct patent to enforce any such patent. Rather, the prohibition against separate enforcement described above is necessary to address the sole policy objective of preventing different patent owners from separately enforcing a first- issued patent and a related indistinct patent. Also as indicated in the House report, we expect the U.S. Patent and Trademark Office to take such steps as are necessary to implement the requirements of this act in the manner we have described. In particular, the Patent and Trademark Office should exercise its responsibility for determining the necessity for, and for requiring the submission and recording of, disclaimers in patent applications and to promulgate such regulations as are necessary including, inter alia, rules analogous to 37 CFR Sec. 1.321, that requires disclaimers in patent applications where double patenting exists. To meet the requirements of the act, the parties to the joint research agreement must agree to accept the conditions concerning common term and the prohibition against separate patent enforcement and all involved parties must agree to be signatories to any required terminal disclaimer. I do not believe any particular form need be followed to give effect to this requirement, and that the Office will address these issues pursuant to its implementation of the act. The House indicated in its committee report that a joint research agreement may be evidenced by one or more writings. I note that evidence of a joint research agreement may take the form of cooperative research and development agreements, CRADAs, material transfer agreements MTAs, or other written contracts or multiple written documents or contracts covering various parties or aspects of the written agreement. As the House Committee indicated in its report, such writing or writings must demonstrate that a qualifying ``joint research agreement'' existed prior to the time the claimed invention was made and that the claimed invention was derived from activities performed by or on behalf of parties that acted within the scope of the agreement. Also, parties to a joint research agreement who seek to benefit from the Act must be identified in the application for a patent or an amendment thereto so the public will have full notice of those patents that have issued pursuant to the provisions of this Act. As the House Judiciary Committee also noted in its report, the act, pursuant to section 3 of the act, pending patent applications could claim the benefit of the provisions of the act. Thus, an existing joint research agreement existing prior to the date of enactment can be used to qualify an application to claim the benefits of the act. Such applications, i.e., those pending on the date of enactment of the act, however, must comply with all of the requirements of the Act, including not only the requirements for disclosure among the parties to the agreement, but also the applicable requirement for a terminal disclaimer. The terminal disclaimer obligations, i.e., that all parties to the joint research agreement consent to having any related patents the first-issued patent and patentably indistinct patents, be bound by the requirements of the Act and the disclaimer be executed by all the owners of such patents, shall provide a means for the U.S. Patent and Trademark Office to confirm that each party to an otherwise eligible joint research agreement that is cited to claim the benefits for an application pending as of the date of enactment of the act has consented to have the act so apply to that application. Thus, associated with any patent application pending on the date of enactment of the act, there will be written evidence of an agreement of the parties to the joint research agreement to affirmatively claim the benefits of, and to be bound by the requirements of, the CREATE Act, by the act of the parties to the joint research agreement recording evidence of their agreement in the same manner as evidence of documents that affect some interest in an application or patent are now recorded with the Patent and Trademark Office. Before I yield, I would like to thank the cosponsors and their respective staffs for their work on this legislation. In particular, I commend Susan Davies, Jeff Miller, Dan Fine, Dave Jones, and Tom Sydnor for their hard work on this issue. Also, I extend my heartfelt gratitude to Katie Stahl for her hard work on this, and numerous other issues. I was informed today that she will be leaving the Judiciary Committee staff in a couple of weeks, and I want to take this opportunity to acknowledge publicly how sorely she will be missed.

Mr. HATCH

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

Mr. HATCH

Mr. HATCH. Mr. President, I ask that the Senate now proceed in executive session to consider Executive Calendar Nos. 591 and 604 as provided under the previous order.

Mr. HATCH. I do not intend to take all of our time, and I hope the other side will not take all of its time. I rise to support the nomination of Justice Diane S. Sykes to the Seventh Circuit Court of Appeals, and to urge my colleagues to support her. There is no doubt that she is well prepared to join the Federal bench. A graduate of Marquette University School of Law, Justice Sykes served as a law clerk to the Honorable Terrence T. Evans in the Eastern District of Wisconsin. As a litigator in private practice, she specialized in civil litigation in State and Federal court. Justice Sykes will bring almost 12 years of judicial experience to the Seventh Circuit. Since 1999, when she was appointed by Governor Tommy Thompson to fill a mid-term vacancy, she has served on the Wisconsin Supreme Court. She won election for a ten-year term on the court in 2000 with 65 percent of the vote. Judge Sykes appealed to so many of her State's voters because she is a careful, qualified jurist and not an activist. Before coming to the Wisconsin Supreme Court, Justice Sykes served as a trial judge on the Milwaukee County Circuit Court, winning election to a 6-year term in 1992. Prior to her service as a State judge, Justice Sykes practiced commercial litigation for 7 years at one of Wisconsin's most prestigious law firms. She also clerked for Judge Evans, district judge for the Eastern District of Wisconsin after her graduation from Marquette University Law School. Not surprisingly, the ABA rated her well-qualified for appointment to the Seventh Circuit. She has also received broad support, including that of both Wisconsin Senators. Despite her strong credentials and the level of support she enjoys, there continues to be some misinformation and distortions regarding her record. First, of course, is the suspicion by some that she might be pro-life and thus presumptively unqualified for service on the Federal bench. Opponents cite one 1993 case on which she ruled while she served as a county judge in Milwaukee. She was then accused of declaring admiration for pro-life protestors and issuing jury instructions favorable to those protestors. The Milwaukee newspaper that printed these accusations issued a formal retraction and apology less than a month later. The apology noted, among other things, that the language of Justice Sykes' jury instruction was specifically recommended for use by the Wisconsin Criminal Jury Instructions Committee, and was used by judges throughout the State. The apology further noted that Justice Sykes sentenced the protestors to \2/3\ of the maximum sentence permitted by law. The record is clear that Justice Sykes, during sentencing, stated ``whether you like it or not, [an abortion clinic] is a legal, legitimate business, and it has the same right to be free from interference of this sort as any other business.'' Justice Sykes also clarified, in answers to written questions that ``my favorable comment about the goal [those] defendants sought to achieve was a reference to their underlying goal of reducing the number of abortions, as is clear from the following statement from my sentencing remarks: `I think that people on both sides of the abortion issue would probably agree with you that reducing the number of abortions in this country is a desirable goal.' My sentencing remarks also reflect extensive consideration of the seriousness of the offense and criticism of the defendants' conduct and tactics. . . [A]nd the 60-day jail sentence I imposed, at two-thirds of the maximum, could not be characterized as unduly lenient or a `validation' of the defendants' beliefs.'' I hope it is not the argument of those who are concerned about Judge Sykes that any judge who at any time suggests that fewer abortions is a desirable goal is disqualified from the Federal judiciary. I know also that some Senators are concerned about some of Justice Sykes' other answers to post-hearing written questions. A careful reading of her answers will show that Justice Sykes answered her written questions as completely and accurately as the Wisconsin Code of Judicial Conduct allows. Specifically, Wisconsin Supreme Court Rule 60.06(3) prohibits sitting judges from engaging in extra-judicial commentary with respect to particular cases or legal issues that would appear to commit the judge in advance or suggest a promise or commitment of a certain course of conduct regarding particular cases or legal issues. As her answers point out quite eloquently, ``there is a range of opinion in the legal community regarding the scope of so- called `commitments' clauses in judicial ethics codes. To the extent that [others] disagree, I must keep my own counsel and abide by my interpretation of the obligations of my oath, the duties of my office, and the requirements of the Code, which are binding on me.'' In those same written questions Justice Sykes was asked whether she believed that the Supreme Court's decisions in Roe and Griswold constituted ``judicial activism'', whether they were ``unprincipled'' and whether they were consistent with ``strict constructionist'' philosophy. Justice Sykes avoided criticizing these cases out of a good faith belief that to do so would violate her ethical obligations under Wisconsin law. Her answers followed the same path as at least four of President Clinton's Circuit Court nominees who refused to give their personal views or criticize Supreme Court precedent on various issues, precisely because those issues might come before them as sitting judges. Justice Sykes did state as follows: ``I can unequivocally state, however, that I believe that Roe and Miranda are the law of the land, and if I am confirmed to the Seventh Circuit, I would be duty bound to follow and would follow these and all other precedents of the United States Supreme Court.'' She further stated that she believes ``that Roe and Griswold constitute binding precedent,'' which she would follow ``without hesitation'' if confirmed to the Seventh Circuit. Justice Sykes has also been labeled as pro-prosecution and anti- Miranda, implying that she would not be a fair judge. Contrary to the misrepresentations of her opponents, she has often ruled in favor of criminal defendants in Fourth Amendment and other cases involving questions of constitutional criminal law, siding against government actors many times. Justice Sykes' real record shows that she reaches outcomes by applying the law to the facts, as she should. For example, in the State v. Knapp case, Justice Sykes agreed with the majority in a case involving a custodial interrogation that the statements made by a suspect in custody were not in compliance with the dictates of Miranda and could not be used by the prosecution against him. In the State v. Church case, she overturned an increased sentence of an individual convicted of criminal assault, concluding that the increased sentence was presumptively vindictive, in violation of the defendant's right to due process, and that the presumption was not overcome by adequate, objective new factors in the record justifying the increase. Also, in the State v. Schwarz case Justice Sykes ruled in favor of a probationer in a Fifth Amendment case because his probationary officer during offender treatment compelled him as a condition of probation to admit to the crime of which he was convicted. She specifically held that a probationer cannot be compelled to admit to the crime of conviction before the time for a direct appeal has expired or an appeal has been denied because the Fifth Amendment privilege extends to those already convicted, whether in prison or on probation. There is another argument against Justice Sykes which I have heard, regarding her dissent in State v. Carlson, which needs to be set straight. She stands accused of improperly finding harmless error in a trial court's seating of a non-English speaking juror in a criminal case. At first blush this does seem like harmful, not harmless, error. Again, a careful reading of her response to this issue illuminates the truth of this matter. She clarified that there was significant evidence in the trial court record that the juror in question did understand English. He had lived in the country for 20 years and passed a citizenship test. He held a driver's license and a fishing license. He was employed as a factory worker, where presumably he had to comply with various State and Federal safety procedures, and he had previously testified, without an interpreter, at a post-conviction hearing. Justice Sykes stated, properly, that ``when there is competing evidence, it is the job of the trial court--not the appellate court--to evaluate and weigh it, and make findings of fact. . . . Under well- established rules of appellate review, factual findings of the trial court are reviewed deferentially, and are not disturbed unless clearly erroneous, that is, factually unsupported. . . . The majority in Carlson disregarded this deferential standard of review and substituted its own view of the facts for that of the trial court; it was this failure to follow the applicable legal standard that I objected to in my dissent.'' I thought we all wanted judges who understand their role and not pursue an activist agenda. I think we should be pleased that a nominee to a Federal appellate court properly understands her appellate role. It is quite unfortunate that some would misrepresent Justice Sykes' principled dissent in this case as evidence of activist tendencies. It is precisely the opposite. It demonstrates restraint and respect for her role as an appellate judge. Justice Sykes' record represents the antithesis of the activism that I have heard all of my colleagues say they do not want to see from judges nominated to our Federal courts. The Senate should be in the business of approving judges who have demonstrated that they respect the judicial role and will not substitute their own policy preferences for those expressed by the legislature. Judge Sykes' record in this regard is impeccable, and I will be pleased to vote with Senators Kohl and Feingold to confirm her to the Seventh Circuit. I urge my colleagues to vote with us.

Mr. HATCH. We are prepared to yield the remainder of our time and I believe the remainder of the time for the other side of the aisle, except for 20 minutes which should be reserved for Senator Durbin on both nominees.

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

Mr. HATCH

Mr. HATCH. Mr. President, I would like to compliment my friend, Senator Stevens. He has been a tireless advocate for our Nation's military and has ensured that our service members receive the highest quality training possible. Senator Stevens has also not forgotten that it is the families of our service members who play a vital role in supporting our troops and Congress has a important responsibility to lighten this heavy load. Therefore, I rise to ask the Senator's thoughts about the Navy's determination to revolutionize its training and leadership program curriculum.

Mr. HATCH. I thank the Senator. I also hoped the Senator might share his thoughts on how we might better support our service members families?

Mr. HATCH. I thank my friend, the distinguished Chairman.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to express my strong support for the confirmation of William Duane Benton, who has been nominated to the U.S. Court of Appeals for the Eighth Circuit. Judge William Benton is an ideal nominee and is well suited for the Federal bench. He is currently a judge on the Supreme Court of Missouri, where he has served for 13 years, including two years as chief justice of the court. He is highly respected by his peers, has broad bipartisan support, and received a unanimous ``Well Qualified'' rating from the American Bar Association. Both of Judge Benton's home State senators, Senators Bond and Talent, enthusiastically support his nomination to the Eighth Circuit. Before I go on, I want to note here that Judge Benton is the only certified public accountant serving on any State supreme court in the United States. I would also note Judge Benton's military career. From 1975 to 1979, he served with the U.S. Navy as a judge advocate. A Vietnam veteran, Judge Benton retired from the U.S. Naval Reserve at the rank of Captain following 30 years of active and reserve service. Judge Benton has an outstanding academic record and I want to list a few of his accomplishments: He graduated summa cum laude from Northwestern University, where he became a member of Phi Beta Kappa. He then attended Yale Law School, where he distinguished himself as both an editor and managing editor of the Yale Law Review. While on active duty in the Navy, he attended business school at night at the University of Memphis and received his master's in business administration--with highest honors. And in 1995, he received an L.L.M. from the University of Virginia. Judge Benton has been a dedicated public servant throughout most of his career, serving in all three branches of the Government at the State or Federal level. He was confirmed by the Missouri Senate for many of those positions: Director of Revenue for the Missouri Department of Revenue; the Chair of the Board of Trustees for the Missouri State Employees' Retirement, and Member of the Board of Regents for Central Missouri State University. Additionally, the governor of Missouri appointed Judge Benton to the Multistate Tax Commission prior to his service on the bench. The Missouri Senate also confirmed him for that position, and members from 32 other states elected him chair of the commission. Judge Benton also served as chief of staff to Missouri Congressman Wendell Bailey in the U.S. House of Representatives. In addition to his many years as a public servant, Judge Benton maintained a law practice. During the 1980s, he had a general civil practice representing clients such as statewide associations and groups, small businesses, and local governments. He also represented several Federal inmates on a pro bono basis. Judge Benton has the support of both home State senators. Furthermore, he has wide support from members of the Missouri bar, as well as community organizations such as the Jefferson City Branch of the N.A.A.C.P. Judge Benton has a solid reputation for possessing a high level of integrity, and for being personable and engaging. I'm sure that my colleagues will agree that Judge Benton brings unmatchable expertise, as well as experience to the Federal bench. Mr. President, I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to express my strong support for the confirmation of Peter W. Hall, who has been nominated to the U.S. Court of Appeals for the Second Circuit. Mr. Hall is an exceptional nominee and well-prepared for the Federal bench. A graduate of the University of North Carolina at Chapel Hill and a cum laude graduate from Cornell Law School, he served as a law clerk for United States District Court Judge Albert W. Coffrin in the District of Vermont. He then served in the United States Attorney's Office for the District of Vermont, first as an assistant U.S. Attorney, then as first assistant U.S. Attorney. From 1986 to 2001, Mr. Hall was a partner in the law firm of Reiber, Kenlan, Schwiebert, Hall & Facey, P.C. He then returned to the U.S. Attorney's Office--this time unanimously confirmed by the Senate--to be the United States Attorney for the District of Vermont, a position he holds today. Mr. Hall has been very active very in his community. He served as President of the Vermont Bar Association from 1995-96, on the Federal District Court Advisory Committee for the United States District Court in Vermont as a Citizen Board Member of the Vermont Criminal Justice Training Council, and on the Board of the Vermont Karelia Rule of Law Project. From 1989-1994, he was a nonpartisan elected member of select board for the town of Chittenden, VT, and in 1995, he was the elected Justice of the Peace for Chittenden. He has also been involved in the lay leadership of his church. Mr. Hall has overwhelming bipartisan support, including both of his home State Senators, Patrick Leahy and Jim Jeffords. The ABA unanimously rated him ``well qualified.'' He is an outstanding candidate who has been nominated to fill a vacancy that has been designated by the National Judicial Conference as a judicial emergency. I urge my colleagues to join me in supporting his nomination.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to express my support for the confirmation of Dora Irizarry, who has been nominated to the U.S. District Court for the Eastern District of New York. Judge Irizarry has an impressive record of academic achievement and public service. She is a cum laude graduate of Yale University and a graduate of Columbia University School of Law. She has spent the great bulk of her career in public service, including 16 years as an assistant district attorney prosecuting complex narcotics cases. In 1995, then-Mayor Rudolph Guiliani appointed her to the New York City Criminal Court. Two years later, she was elevated by Governor George Pataki to the New York Court of Claims, where she served as an acting justice on the New York Supreme Court. After seven years of service as a judge, she left the bench in 2002 to campaign as the Republican candidate for State Attorney General. She is currently in private practice with the New York law firm of Hoguet Newman & Regal. In acknowledging the questions that some of my colleagues have about Judge Irizarry, let me just say I have done my best to ensure her nomination is treated with fairness and respect, and I believe we've succeeded. During the confirmation hearing for Judge Irizarry, we heard from the ABA and we also heard from three distinguished members of the New York legal community. We heard from New York Supreme Court Justice Michael Pesce, the presiding justice, and New York Supreme Court Justice Lewis Douglass, as well as James Castro-Blanco, immediate past president of the Puerto Rico Bar Association. They praised her legal aptitude and experience, her integrity, and, most notably, her judicial temperament. Furthermore, the Committee received a number of letters in support of Judge Irizarry's nomination from those who were unable to attend her hearing, as well as a strong letter in support from the Congressional Hispanic Caucus. When I look at the full record in this case, including the impressive testimony on behalf of Judge Irizarry from her judicial colleagues and former associates, the endorsements of the Brooklyn, Asian American and Puerto Rican Bar associations, and her own answers to the questions that have been raised, I am persuaded that she is prepared to be a fine Federal judge. I support her confirmation, and I ask my colleagues to do the same. Mr. President. I yield the floor.

Mr. HATCH. Mr. President, I am pleased today to speak in support of George P. Schiavelli to be United States District Judge for the Central District of California. Judge Schiavelli has exceptional qualifications for the Federal bench. After graduating first in his class from UCLA Law School in 1974 he joined the law firm of O'Melveny & Myers LLP as an associate where he worked on litigation, labor, corporate and entertainment issues with an emphasis on commercial litigation. In 1976, Judge Schiavelli joined the litigation department of Ervin, Cohen & Jessup LLP. Ten years later, he was hired as a partner at Horvitz & Levy, LLP, an appellate law firm. Judge Schiavelli began his distinguished career in public service by joining the Los Angeles Superior Court in 1994 where he served until 2000. Since that time, he has practiced principally in the area of alternative dispute resolution, ADR, acting as a mediator, arbitrator, referee, and special master. In addition to his ADR activities, Judge Schiavelli has been Of Counsel to the Appellate Group of Reed Smith LLP. Judge Schiavelli's impressive credentials are reflected in his unanimous American Bar Association rating of Well Qualified. I urge my colleagues to join me in supporting his nomination.

Mr. HATCH. Mr. President, I rise today to express my strong support for the confirmation of Robert Harwell, who has been nominated to the U.S. District Court for the District of South Carolina. Mr. Harwell is an exceptional nominee. A graduate of the University of South Carolina School of Law, he brings more than 20 years of legal experience to the Federal bench. After graduation, he clerked consecutively for South Carolina Circuit Judge Rodney A. Peeples and U.S. District, South Carolina, Judge G. Ross Anderson, Jr. Let me just say that Mr. Harwell, like my distinguished colleague from South Carolina, Senator Lindsey Graham, has served as judge advocate general in the South Carolina Army National Guard. I note that Senator Graham served in the Air National Guard. After his clerkships, Mr. Harwell entered private practice with the law firm of Harwell, Ballenger & DeBerry, now known as Harwell, Ballenger, Barth & Hoefer, LLP, where he currently practices. In addition to practicing law, he often serves as a mediator or arbitrator, skills that will undoubtedly serve him well on the bench. I think my colleagues will agree that Mr. Harwell is a well-qualified nominee and will make a fine jurist. Mr. President. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased today to speak in support of Juan Sanchez, who has been nominated to be a United States District Judge for the Eastern District of Pennsylvania. Judge Sanchez is exceptionally qualified for the Federal bench. He presently serves on the Court of Common Pleas in the 15th Judicial District of Pennsylvania, having been elected to that position in 1997. Upon graduating from the University of Pennsylvania Law School in 1981, he became a staff attorney for Legal Aid of Chester County. Two years later, he joined the Chester County Public Defender's Office as a senior trial attorney--a position that he retained until 1997. During that period, Judge Sanchez also worked for two law firms and as a sole practitioner, representing Spanish-speaking individuals in a wide variety of legal areas. Judge Sanchez has dedicated his career to serving the disadvantaged in Chester County, PA, and his impressive credentials are reflected in his unanimous ``Well Qualified'' rating by the American Bar Association. Judge Sanchez is an extremely well-qualified nominee. I am confident that he will be a fine addition to the bench and urge my colleagues to join me in supporting his confirmation. Mr. President, I ask for the yeas and nays.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to express my strong support for the confirmation of Walter D. Kelley Jr. to serve as a judge for the United States District Court for the Eastern District of Virginia. Mr. Kelley received both his undergraduate and his law degree, magna cum laude, from Washington and Lee University. Upon graduation from law school, he clerked for Judge Ellsworth Van Graafeiland on the Second Circuit. In 1982, he joined the Norfolk, VA, law firm of Wilcox and Savage. Since 2001, he has been a partner at Troutman Sanders in Norfolk, where he practices in the area of business litigation with an emphasis on intellectual property and antitrust law. Aside from his private practice, Mr. Kelley has devoted significant time to improving the legal community as a leader in bar activities. He has served as a mentor to younger attorneys, a quasi-judge of the Norfolk Circuit Court, and as a law professor. He also served on the Virginia Attorney General's Task Force on Higher Education; as rector and a member of Old Dominion University Board of Visitors; as a chairman and director of the Hampton Roads Board of the Salvation Army; and as a trustee of the Norfolk Collegiate School. Walter Kelley is an extremely well-qualified nominee with a significant amount of litigation experience. The American Bar Association unanimously bestowed on him its highest rating of ``Well Qualified,'' in recognition of his outstanding legal skills and reputation. He will make an excellent addition to the Federal bench and I urge my colleagues to join me in supporting his confirmation.

Mr. HATCH

Mr. HATCH. I ask unanimous consent that I be permitted to speak for up to 10 minutes, the Senator from New York be permitted to speak for 10 minutes, and then the distinguished Senator from Alabama.

Mr. HATCH. I have been listening to my dear colleague from Illinois, and I have to say what happened at Abu Ghraib was absolutely wrong. Everybody knows that. What happened there has to be decried. We all have to speak out about it. But the minute they found out about it, they started the process of prosecuting the people who did this. It appeared to be a small cadre of people, all of whom will likely receive either severe reprimands or actual prosecution. In other words, the system is working. It should never have happened. We decry it. It was wrong. All the screaming in the world by either side on this floor is not going to make any difference. It happened, and we are all ashamed of it. Having said that, if we listen to the arguments of the other side, transparency is absolutely critical in all the things we do. Well, then that means we ought to do away with the Intelligence Committee because there are a lot of things that are not transparent to the American people, especially when it involves national security, especially when it involves our young people's lives while overseas, especially when it involves all kinds of matters that are better left non-transparent. I went on the Internet and I read every one of these documents that was on the Internet. Most all of them were legal opinions. Now, one might differ with legal opinions. I do not know any two lawyers who agree on everything anyway, but if one reads those opinions they do make sense. For somebody to say carte blanche that the Geneva Conventions apply and should apply to everything, that flies in the face of not only international law, it flies in the face of what is happening in this situation. This is not a normal situation. We are not fighting autonomous countries right now. We are not fighting against organized enemies who wear uniforms and fight conventional battles. We are not fighting the normal course of battles that we have had through the years where we have had to, as gentlemen, recognize the civil way of doing things. We are fighting absolute terrorists who would destroy this country and destroy every person involved in our overseas operations if they had a chance, and they would do it by any means possible: biological, chemical, weapons of mass destruction, nuclear, if necessary, if they had the capacity to do it. If we are so transparent that we tell them everything that is on our minds, then we are putting our young people at risk. Yes, my colleagues can find fault with the legal opinions. People do. I might even agree or disagree on some of these legal opinions. But they were well-reasoned opinions. I know some of the people who actually rendered them. They are top notch authorities in these areas. My colleagues might disagree with them, but they cannot necessarily refute them. I was in Guantanamo a few weeks ago. I went completely through that camp. I was shown everything I wanted to see, and that meant just about everything. I have read article after article about how terrible it is at Guantanamo, how much they violated the law, all because of conjecture. I have seen our colleagues on the other side, and I have seen the media excoriate this administration because of all of these bad things that have happened at Guantanamo. Well, I went through Guantanamo, and it is a well-run camp with incentives. Now, some of our colleagues do not even like incentives. They will even criticize that because it is the Bush administration, after all. Of course, I know our colleagues are not making this kind of criticism because they want to find fault with the Bush administration or cast blame on the Bush administration or make the Bush administration look as if maybe it is not doing everything it should. I know that could not possibly be in their minds. Or that they are politicizing this because of the election that is going on. I know they would not do a thing like that. I just know it. I just know it deep within my soul. My colleagues can differ with the legal opinions and they can certainly condemn what happened at Abu Ghraib. But these things are not happening at Guantanamo Bay. They did happen in Afghanistan, but in those cases there are investigations and prosecutions on their way. I do not think we have to be transparent about everything around here. Transparency hurts our young men and women, too. It subjects them to all kinds of ridiculous problems. It is important for us to get to the bottom of these things. I think it is important for us to have an overview, but I also think it is important for us to be fair and not just try to score, yes, cheap political points. Unfortunately, there is too much of that around here. It has happened on both sides from time to time, but it has really been happening this year. Every time it happens, I suggest we ought to stop and think about our young men and women overseas, whether we are helping them or hurting them. Some of these arguments are hurting them. When I went to Guantanamo, I watched two interrogations, one with a terrorist who was very uncooperative and another one who at first was very uncooperative but because of work by some very effective people, using very effective interrogation techniques--not torture, by the way, not even close to torture--they have been able to obtain information that has saved our boys' and girls' lives. Interrogations have to go on and they are not patty-cake games. There is no excuse for anything that even comes close to torture. And I believe that other than isolated incidents--which are going to happen in times of war, especially when we are fighting these type of terrorists--I suggest that our people have abided by the Geneva Conventions even though it is correct to say that in this type of a situation the Geneva Conventions may not apply. Personally, I believe we ought to apply them to everything because there is a wide variety of interrogation techniques that are permissible under the Geneva Conventions. I won't go through all of those because I don't want to be transparent. Nor do I want some techniques that are acceptable to be criticized by any colleagues from any side to score cheap political points. Frankly, I am getting a little tired of this desire to undermine everything that is going on over in Iraq and Afghanistan. I think it is time for us to get together and work in unison to try to help our young men and women. Transparency sometimes happens to be the worst thing we can do. That doesn't mean we should not get to the bottom of these awful things that have happened at Abu Ghraib. That doesn't mean we should tolerate that type of irresponsible and criminal conduct. Of course we should not. There is nobody in this body who disagrees on that, to my knowledge; nobody. But to try to imply that the President of the United States is responsible for these aberrational activities by a few is, I think, irresponsible in and of itself and I think it is just too much of this political world that we are in right now. Madam President, I went through the camp itself down at Guantanamo. It was well run. There were people there who never were fed so well in their lives. There were arrows, so they could pray in the correct direction. There were Korans in every cell as far as I could see. I saw many chessboards and checkerboards. I saw outdoor areas where they could exercise. I saw a lot of things that were being done right. I saw interrogations that were not staged for me, and I have to tell you it was run right. Anybody who thinks these are patty-cake games, that we must really hold and pet their hands, just isn't living in the real world. I agree and I concede and I hope our colleagues--everybody on both sides agree there are certain things you can do within the parameters of the Geneva Conventions and there are certain things you can't do. But I guarantee if you went through everything that can be done in the Geneva Conventions there would be some people who would be very upset that those types of interrogation techniques could be used. I am not going to go through them all because I know the more stressful ones were not being used with the authority of our people. I think to imply that they were is wrong. Before I close, let me just take a moment to comment briefly on statements made by my Democratic colleagues, attacking the President and the administration for not being forthcoming in releasing documents, notwithstanding the fact that they just declassified and released approximately 260 pages of legal memoranda. They attack the Attorney General for refusing to hand over three documents when he testified before the Committee, but since then, we have received those documents from the White House. Now, even though they lost on this issue before the Judiciary Committee, they are now trying to bring it up as an amendment on the floor. In fact, they want us to vote on a subpoena before the time set to comply with the document request has passed. It is simply premature to issue any subpoena at this time. I urge my colleagues to vote against this amendment if the Senator from Nevada decides to reintroduce it. I yield the floor.

Mr. HATCH

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

Mr. HATCH. Mr. President, what is the parliamentary situation?