Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, today I rise to introduce S. 1125, the bipartisan Fairness in Asbestos Injury Resolution Act of 2003, the FAIR Act. I am joined by my colleagues Senators Ben Nelson, DeWine, Miller, Voinovich, Allen, and Chambliss who share my concern on this important issue and have worked very hard to help bring about a resolution up to this point. They have all felt the impact of this situation in their home States and have shown the courage that we need to move forward to legislate a solution. I also commend the interests of my good friend and Judiciary partner, Senator Leahy, as well as Senators Dodd and Carper, whom I would hope will continue to work with us to improve this important legislation. I also want to recognize and commend my colleague from Oklahoma, Senator Nickles, who has also been a leader on this issue and recognizes the harm the current system poses to our workers and to our economy. There can be no doubt that our Nation faces an asbestos litigation crisis. We have all heard the statistics, but they bear repeating. The RAND Institute for Civil Justice tells us that, to date, over 60 companies--I have been informed almost 70 companies--have been forced into bankruptcy--at least three with operations in my own home State of Utah. The number of claims continues to rise, as does the number of companies pulled into the web of this abusive litigation, often with little, if any, culpability. More than 600,000 people have filed claims, and more than 8,400 companies have been named as defendants in asbestos litigation, some of them for no good reason at all but who are now stuck with horrendous defense costs, even though they would win every case. This has become such a gravy train for some abusive trial lawyers-- just some--that over 2,400 additional companies were named in the last year alone. RAND also notes that ``about two-thirds of the claims are now filed by the unimpaired, while in the past they were filed only by the manifestly ill.'' Two-thirds of the complaints are filed by people who are not even sick. Former Attorney General Griffin Bell, amongst many others, has denounced this type of ``jackpot justice.'' There is broad support for a comprehensive solution, and I believe that our legislation is a major step in the right direction. I have been and will continue working with my colleagues on both sides of the aisle to resolve this issue. We need to ensure that the truly sick get paid, while providing stability to our economy by stemming the rampant litigation that has resulted in a tidal wave of bankruptcies, endangering jobs and pensions and health care and almost everything else that workers need in these companies. This crisis reaches far and wide, and it hurts everyone. I am pretty pleased with what we have been able to accomplish to date. I have worked with all kinds of companies. I have worked with the unions. I have worked with some trial lawyers. And I have worked with insurance companies, reinsurers. You name them--they have been to Senator Nelson's office and my office. And Senator Nelson has worked long and hard and diligently side by side with me to be able to come up with what we have right now, which is a pretty darn good package and a good bill. I am proud of the product we are putting forth today, but we are not done. We know that. But we have made significant progress. Let me tell you what this bill does. We pay victims faster. The FAIR Act creates a fair and efficient system to resolve claims of asbestos victims in a reasonable way that enables legitimate claimants to obtain recovery much faster and easier than the current system. A new specialized court will pay eligible claimants through a no-fault system within just a few months. Asbestos victims will no longer have to wait several years or more to be paid. Our proposal will streamline the process and decrease the need for attorneys so that claimants will be able to retain more of their awards, without huge attorney's fees or transaction costs. Transaction costs--most specifically, attorney's fees--have drained essential resources in the current system, to the point where there will not be resources for those who are truly ill, unless we do this bill. Non-sick claimants will no longer deplete resources that should pay the truly sick victims. In order to direct the resources to those most in need, the FAIR Act implements measured medical criteria and fair dollar values for claimants so that all those who are sick will be able to get compensation. The medical criteria are modeled on the 2002 Manville Trust Distribution Process. These standards were intensely negotiated with the plaintiff's bar before they were enacted, and they represent a fair guideline for determining the respective diseases, and for determining who is impaired and who is not. For those who are not sick, we provide medical monitoring. If and when they become sick, they are ensured access to the fund. This is the FAIR approach. Payments in the new court process will be fair and reasonable. Claimants will have a reasonable expectation of the amount they will receive. There will not be any more runaway jury awards for people who have never actually been sick, draining the resources away from the victims who truly need our help. We provide stability and certainty. In order to get the stability we need for victims and the economy, the Fair Act is the exclusive remedy for asbestos personal injury claims. There will be no more ``forum shopping'' abuses that have made a mockery of our justice system where some legitimate victims are currently left with no recourse while others with no illness at all receive windfalls. We have taken great pains to ensure adequate funding for claim awards. Awards to claimants are paid out of a newly created fund consisting of contributions over a 25-year period from both the bankrupt and solvent defendants with asbestos liabilities and insurance and reinsurance companies with policies covering asbestos personal injury claims. The business community receives the certainty they need to protect jobs and pensions. In our legislation, we set out mandatory funding of $90 billion from industry and insurers, with an additional $4 to $6 billion or more available from current asbestos trusts, and the authority to assess another $14 billion from companies that may be avoiding future liability. I am really pleased that the various companies and industry have come together on this. Defendant companies have reached an agreement on allocating their $45 billion in contributions. I am encouraged that the insurers continue to work toward a similar agreement. For now, we have in place a Blue-Ribbon commission that can make those determinations should the insurers be unable to resolve their shares. Overall, the business community has really made tremendous progress to provide funds that are projected to compensate victims appropriately and for the next 50 years. They haven't been happy to do that but they are going to have to do that. They are not happy with this $108 billion trust fund. It is at least $18 billion more than what they were willing to pay. But I believe that they will, in the end, have to come along with this bill. And many of them are saying that right now. They are not happy but they realize that we are trying to resolve this in a way that is fair to everybody. We all want to ensure that there is enough money in the fund to compensate claimants. Toward that end, I have included provisions such as a payment guarantee surcharge account and an orphan share account where additional funds will be set aside to grow and be available in the unlikely event of a shortfall. In addition, I provide for contribution obligations to be a priority in bankruptcy and for Attorney General enforcement of contribution obligations. Over the last few days since I circulated the FAIR Act, I have received a lot of helpful feedback. As a result, we have made a number of changes in response to reasonable concerns. I expect we will make more down the road. All we have to do is have reasonable people work with us in good faith, and we are going to try to improve this bill every step of the way. But we have a limited time in which to get this done. Anybody who does not understand that is going to be somebody who destroys or at least attempts to destroy the only game in town, the only way we can resolve these problems. We have received some suggestions from Senators Leahy and Dodd. I commend their interest in and leadership on this issue. They have provided some valuable suggestions which we will study. We have already incorporated some of their suggestions in the bill we introduce today. First, we have included language that permits the Administrator of the fund to refer to the Attorney General for enforcement any information received regarding violations of EPA or OSHA regulations. Second, we specify that life insurance will not be counted as a collateral source offset to any award granted to victims. Third, as a further safeguard against imbalance in the appellate procedure, we ensure that the judges of the en banc panel of the new U.S. Court of Asbestos Claims are assigned randomly. We are considering other proposed suggestions that will further our progress on this issue. Again, I want to thank my colleagues on the other side of the aisle who have been engaged in this issue over the last several months, especially my cosponsors, Senators Nelson and Miller, as well as Senators Leahy, Dodd, Carper, Levin, and Feinstein, who are contemplating cosponsorship down the line but have not been able to do so as of this date. I encourage them to stay involved and work with us during this process. I also want to thank the leadership of Senators DeWine, Voinovich, Brownback, Nickles, and Zell Miller in particular, who all share my view that this asbestos crisis must be resolved. I know there are other issues that remain. The issue of a potential shortfall in funding at the end is certainly an important one. I think we can work together to address this issue, although it is premature to come up with a solution to that right now. Perhaps exploring private insurance mechanisms or some other avenue may be the way to go. I don't know. But we are willing to listen. We have to start now, or we don't have a chance of getting a bill through that will help all of those concerned in this area, from the unions to the smallest company and the largest company. As I have said before, I oppose making taxpayers responsible for any potential mismanagement of the fund. If we employ appropriate medical criteria to ensure that those who are actually sick receive the compensation, that will go a long way toward increasing the manageability of this fund so that we don't have to worry about a shortfall. With our funding levels set at the highest level of current projection, I do not expect a shortfall to occur, and I don't think others do as well who have done the accounting work on this. But we can find a way to give more comfort to those who believe that even the highest level may underestimate the number of claims. If the medical criteria are reasonable, then it will be much easier to resolve the issue of ensuring that there will be enough funds to redress future claimants. As I have mentioned to my colleagues, if the desire for a legislative solution is genuine, then we must take a position and move forward with the legislative process. This complex legislation will require our collective efforts and our serious cooperation. I would like to go to this chart. This chart is on the effects of asbestos bankruptcies on workers. A lot of people don't realize, a lot of union members don't realize how serious this is. According to a study by the notable Nobel-winning economist, Joseph Stiglitz, commissioned by the American Insurance Association, entitled ``The Impact of Asbestos Liabilities on Workers in Bankrupt Firms'' in December of 2002, bankruptcies led to a loss of an estimated 52,000 to 60,000 jobs. That was in 2002. It is higher now. Each displaced worker at the bankrupt firms will lose on average an estimated $25,000 to $50,000 in wages over his or her career because of periods of unemployment and the likelihood of having to take a new job paying a lower salary. The average worker at an asbestos-elated bankrupt firm with a 401(k) plan suffered roughly $8,300 in pension losses, which represented on average roughly a 25-percent reduction in the value of the 401(k) account. That is important. If we don't solve this problem within the next month, I believe we will have many more companies headed towards bankruptcy with a loss of jobs, a loss of high-paying jobs, a loss of union members' jobs. I believe in the end, the unions will go broke, too. Because if they have any guts at all and any desire to help their members, they will have to help pick up the health costs for these people among other things. But the pensions are going to be gone. The union jobs will be gone. That is why we have to do something now, not keep trying to get blood out of a stone. Unfortunately, we have some who want to do that. Let me go to this next chart, which is the New York Times. This shows the surge in asbestos suits, many by healthy plaintiffs. The ones who are very injured, cancer ones, are represented by the red line on the bottom. Look at the black line, which is noncancer victims, many of whom have never suffered a sick day in their lives who are now approaching 70,000 claims, many of whom show no signs of being sick at this point. We provide medical monitoring for them during the lifetime of this trust. We pay for it. If they get sick at any time, they can come in and on a no-fault basis get their compensation without having to pay exorbitant attorney's fees or transactional costs. This is something I think every worker should be cheering and hoping for. The impact of bankruptcy on employment: After adjusting for the changes in industry employment, the firms for which we have data lost 51,970 jobs in the 5 years prior to bankruptcy. That is a couple years ago. It is a lot worse than that now. Assuming that employment losses at the firms for which we lack data were proportionate to those for which we have data, the implied total employment loss would be roughly 60,000. Now, with regard to the change in employment in 5 years prior to bankruptcy, after accounting for changes in industry employment, in firms filing for bankruptcy before January 1998, was 24,551, the number of jobs lost. Firms filing for bankruptcy after January 1998, 27,419 jobs. Total for firms with data, 51,970. The estimated total for all bankrupt firms is 60,000 as of the day that was done. I believe it is now over 70,000. This is a serious issue. We have to get serious about it. I have tried to work in good faith on behalf of everybody involved. I am calling on all parties--from the unions to the reinsurers--to get together with us and help us to improve this bill. But realize there is only so much blood you can get out of this stone. If we don't do that, there are going to be hundreds of thousands of union jobs and other jobs lost that literally are going to be devastating to this country and to the individuals involved; and we would deserve the blame in the Congress because this bill would go a long way toward solving it. Having said that, I praise my colleague, Senator Nelson of Nebraska, and the other cosponsors of this bill. Without Senator Nelson and his encouragement over the last number of months, I don't think we would have reached this far. He has had the guts to cosponsor this bill at this time, and I have nothing but respect for him, and also Senator Miller as well on his side, and the others on our side, who are willing to stand up. I haven't talked to a lot of Senators about cosponsoring, but I will. I pay tribute to my colleague for his stalwart support in trying to do something about this tremendous set of problems we have in our society today. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I express my enthusiastic support for the confirmation of Consuelo Callahan to the Ninth Circuit Court of Appeals. Justice Callahan is an outstanding nominee with broad support on both sides of the aisle. She has the support of both of the distinguished senators from her home state of California, and she was unanimously approved by the Judiciary Committee the day after her hearing. Justice Callahan received her undergraduate degree from Stanford University and her law degree from McGeorge School of Law. In 1976, she began her 10-year career as a Deputy District Attorney with the San Joaquin County District Attorney's Office where she specialized in the prosecution of child abuse and sexual assault cases. During her 10-year career as a prosecutor, she handled more than 50 jury trials. Justice Callahan also has first-hand experience with breaking the gender barrier. In 1992, she was appointed to the Superior Court in San Joaquin County, where she was the first female and Hispanic to serve on that court. She was also the first female member of two local social and service organizations. In 1996, Justice Callahan became the first judge from San Joaquin County to be elevated to the California Court of Appeal in more than 73 years. In addition to her outstanding career as a prosecutor and a jurist, she has donated her time to organizations involved in addressing the problem of child abuse and sexual assault and has received an award for her work in this area. She has received other awards during her career, including the Governor's award for Criminal Justice Programs and the Susan B. Anthony award for Women of Achievement. In 1999, Justice Callahan was inducted into the San Joquin County Mexican-American Hall of Fame. The Committee has received numerous letters supporting Justice Callahan's nomination to the Ninth Circuit. The La Raza Lawyer's Association of Sacramento described Justice Callahan's professional qualifications in the following way: ``as a state appellate court justice, her opinions have been detailed, thoughtful and supportive of legal precedent. . . . She possesses both the intellect and temperament to be an outstanding justice of the Ninth Circuit Court of Appeals.'' The ten justices that serve with Justice Callahan on the Third Appellate District and work with her every day also sent a letter to the Committee praising her skills as a jurist. They write, ``During her more than six years on our court, Connie has shown that she has the integrity, capacity, collegiality, and diligence to serve with distinction on the Ninth Circuit. Our only reservation in recommending her confirmation is that it will mean a significant loss to our court. We will miss Connie's energy and enthusiasm, her legal skills, and the positive way in which she fulfills her responsibilities as an appellate jurist.'' Her colleagues' loss will be the federal judiciary's gain, as I have great confidence that the beleaguered Ninth Circuit will greatly benefit from her confirmation. I urge my colleagues to support this nomination.

Mr. HATCH

Mr. HATCH. Mr. President, today I am pleased to introduce the ``Medicare Physician Payment Equity Act of 2003,'' a bill that corrects a long-standing inequity in Medicare reimbursement to rural physicians. I am delighted that my colleagues, Senators Jeffords, Grassley, Lincoln, and Bingaman have joined me in addressing this issue and introducing this bill. Although many Americans are not aware of it, Medicare currently reimburses physicians practicing in many rural areas at a lower rate than those practicing in more densely populated areas. A complicated formula, the geographic physician cost index, reimburses physicians according to presumed regional differences in the costs of their work, practice expenses, and medical liability insurance premiums. But in almost every case, this formula penalizes physicians who practice in rural settings. As a result, the unfortunate effect of the current formula is that it may contribute to regional disparities in access to health care. Rural areas tend to have fewer physicians, fewer hospitals and patients often have less access to subspecialty care. Penalizing doctors who practice in rural settings by paying them substantially less than their urban colleagues may contribute to this inequity in access to care. According to the Rural Policy Research Institute, the Medicare payment for an intermediate office outpatient visit in 2003 is 30 percent higher in New York City, $59.33, than it is in St. George, UT, $45.75, and the reimbursement for an emergency room visit is 22 percent higher in New York City, $161.82, than it is in St. George, UT, $131.96. Proponents of this system that pays doctors differently for the same work claim that the purchasing power of physician compensation should be similar regardless of where the work is performed. But others, and I am one of them, believe that doctors should be compensated equally and appropriately for their work regardless of where that work is performed. I believe that it is time that we provide physicians with equal pay for equal work. Physicians deserve it and their patients do also. After all, the citizen in Utah pays Federal taxes at the same rate as the citizen in New York. Why should the citizen in Utah receive cheaper service? The practice expense component of the geographic physician cost index also penalizes rural physicians and their patients. Proponents of the current system claim that it is more expensive for doctors to practice medicine in urban areas where the cost of living is higher and the cost of paying employees is thought to be higher. The practice expense geographic physician cost index rewards physicians in these ``high practice expense'' areas by reimbursing physician services at a higher rate. While it might be tempting to think that practice expenses in urban areas are higher than those in rural areas, this is not necessarily the case. Rural physicians sometimes must offer higher wages to attract nurses and technicians to work in their communities. Furthermore, the formula that is used to calculate the geographic practice expense does not take certain key elements into consideration. Volume discounts can result in lower costs for capital goods and supplies in densely populated areas. Furthermore, a physician in a rural area who purchases an expensive, but necessary piece of equipment, such as an ultrasound machine, may use that equipment less frequently than a physician from a densely populated area. As a result, the rural doctor may not be able to pay for the capital investment as quickly as the urban physician. The practice expense for the rural physician in such a case is higher. In fact, we have known for years that additional resources are sometimes necessary to attract doctors to practice in rural settings. Physicians, nurses and allied health professionals are less prevalent and hospitals are fewer and farther between in rural settings. In some cases, certain services and subspecialty care are not available at all. For this reason, Federal and State programs have offered tuition payment and loan forgiveness programs to student physicians who agree to practice in underserved areas, many of which are rural. Federal payment policy with respect to physician services delivered in rural and underserved areas has been described as contradictory-- paying bonuses to physicians for practicing in rural and underserved areas on the one hand while devaluing physician clinical decision- making and patient services in rural areas less, on the other. The bottom line is this: For many years we have found it difficult in this country to increase access to health care and improve the quality of health care in rural communities. Penalizing physicians for practicing in rural settings just does not make sense. All Medicare beneficiaries, whether they live in an urban or rural area, deserve excellent health care and access to outstanding doctors. The bill I am introducing today, the Medicare Physician Payment Act, addresses current disparities by creating a system that reimburses physicians equitably regardless of where they practice. The bill addresses all three components of the geographic physician cost index, work, practice expense, and medical liability costs, by increasing reimbursement for physicians in disadvantaged areas over a three-year period and by eliminating disparities in reimbursement altogether in the year four. If we pass this bill, doctors will no longer be discouraged from practicing in the rural communities that desperately need their services. I look forward to working with my colleagues in the 108th Congress to pass this legislation.

Mr. HATCH

Mr. HATCH. Mr. President, today I am pleased to introduce the ``Medicare Physician Payment Equity Act of 2003,'' a bill that corrects a long-standing inequity in Medicare reimbursement to rural physicians. I am delighted that my colleagues, Senators Jeffords, Grassley, Lincoln, and Bingaman have joined me in addressing this issue and introducing this bill. Although many Americans are not aware of it, Medicare currently reimburses physicians practicing in many rural areas at a lower rate than those practicing in more densely populated areas. A complicated formula, the geographic physician cost index, reimburses physicians according to presumed regional differences in the costs of their work, practice expenses, and medical liability insurance premiums. But in almost every case, this formula penalizes physicians who practice in rural settings. As a result, the unfortunate effect of the current formula is that it may contribute to regional disparities in access to health care. Rural areas tend to have fewer physicians, fewer hospitals and patients often have less access to subspecialty care. Penalizing doctors who practice in rural settings by paying them substantially less than their urban colleagues may contribute to this inequity in access to care. According to the Rural Policy Research Institute, the Medicare payment for an intermediate office outpatient visit in 2003 is 30 percent higher in New York City, $59.33, than it is in St. George, UT, $45.75, and the reimbursement for an emergency room visit is 22 percent higher in New York City, $161.82, than it is in St. George, UT, $131.96. Proponents of this system that pays doctors differently for the same work claim that the purchasing power of physician compensation should be similar regardless of where the work is performed. But others, and I am one of them, believe that doctors should be compensated equally and appropriately for their work regardless of where that work is performed. I believe that it is time that we provide physicians with equal pay for equal work. Physicians deserve it and their patients do also. After all, the citizen in Utah pays Federal taxes at the same rate as the citizen in New York. Why should the citizen in Utah receive cheaper service? The practice expense component of the geographic physician cost index also penalizes rural physicians and their patients. Proponents of the current system claim that it is more expensive for doctors to practice medicine in urban areas where the cost of living is higher and the cost of paying employees is thought to be higher. The practice expense geographic physician cost index rewards physicians in these ``high practice expense'' areas by reimbursing physician services at a higher rate. While it might be tempting to think that practice expenses in urban areas are higher than those in rural areas, this is not necessarily the case. Rural physicians sometimes must offer higher wages to attract nurses and technicians to work in their communities. Furthermore, the formula that is used to calculate the geographic practice expense does not take certain key elements into consideration. Volume discounts can result in lower costs for capital goods and supplies in densely populated areas. Furthermore, a physician in a rural area who purchases an expensive, but necessary piece of equipment, such as an ultrasound machine, may use that equipment less frequently than a physician from a densely populated area. As a result, the rural doctor may not be able to pay for the capital investment as quickly as the urban physician. The practice expense for the rural physician in such a case is higher. In fact, we have known for years that additional resources are sometimes necessary to attract doctors to practice in rural settings. Physicians, nurses and allied health professionals are less prevalent and hospitals are fewer and farther between in rural settings. In some cases, certain services and subspecialty care are not available at all. For this reason, Federal and State programs have offered tuition payment and loan forgiveness programs to student physicians who agree to practice in underserved areas, many of which are rural. Federal payment policy with respect to physician services delivered in rural and underserved areas has been described as contradictory-- paying bonuses to physicians for practicing in rural and underserved areas on the one hand while devaluing physician clinical decision- making and patient services in rural areas less, on the other. The bottom line is this: For many years we have found it difficult in this country to increase access to health care and improve the quality of health care in rural communities. Penalizing physicians for practicing in rural settings just does not make sense. All Medicare beneficiaries, whether they live in an urban or rural area, deserve excellent health care and access to outstanding doctors. The bill I am introducing today, the Medicare Physician Payment Act, addresses current disparities by creating a system that reimburses physicians equitably regardless of where they practice. The bill addresses all three components of the geographic physician cost index, work, practice expense, and medical liability costs, by increasing reimbursement for physicians in disadvantaged areas over a three-year period and by eliminating disparities in reimbursement altogether in the year four. If we pass this bill, doctors will no longer be discouraged from practicing in the rural communities that desperately need their services. I look forward to working with my colleagues in the 108th Congress to pass this legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I further ask unanimous consent that I be recognized to speak for up to 15 minutes, and that following my remarks, Senator Ben Nelson be recognized for up to 15 minutes.

Mr. HATCH. Mr. President, I ask unanimous consent that there now be a period of morning business with Senators permitted to speak for up to 10 minutes each.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that Patrick Shen, a detailee on my Judicial Committee staff, be granted the privilege of the floor for the duration of this session.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in support of the Prevention and Recovery of Missing Children's Act. I especially want to commend my colleagues Senator Dodd and Senator Collins for their hard work on this important legislation. Sex offenders prey upon the weakest and most innocent in our society--our youth--and in astonishing numbers. According to the National Center for Missing and Exploited Children, 3.9 million of the Nation's 22.3 million children between the ages of 12 and 17 have been seriously physically assaulted, and one in three girls and one in five boys are sexually abused before the age of 18. Even more troubling is the fact that most sex offenders are not in our prisons. Instead, they remain in our communities, often targeting their next victim. To illustrate, among the Federal Bureau of Investigation's `Most Wanted Fugitives' is a sex offender who allegedly sexually abused a 12-year old boy over a 6-year period after he was released from prison for previous acts of sexual abuse. Time and again we see convicted pedophiles kidnapping, brutally raping, and in some cases, murdering young children. Too often we are unable to thwart such heinous acts because recidivists succeed in evading State registration requirements after they have been convicted and released from prison. We have a duty to our children to ensure that we know where convicted sex offenders are at all times. We also have a duty to take every step to find our missing and exploited children promptly. The Prevention and Recovery of Missing Children Act of 2003 will enhance our ability to track recidivists and find child victims by strengthening sexual offender registration laws and missing children reporting requirements. This legislation (1) requires States to register sexual offenders prior to their release from prison to ensure that they comply with sex registration requirements; (2) requires States to obtain a DNA sample, as well as a photo and fingerprints, from convicted sexual offenders; (3) requires convicted sexual offenders to obtain a driver's license or State identification card as an additional means of identification; (4) requires convicted sexual offenders to report any change in registration within 10 days; (5) requires convicted sexual offenders to verify their registration information every 90 days; (6) makes it a felony offense to fail to comply with any sexual registration requirement; and (7) strengthens the missing children reporting requirements that are imposed on States. It is critical that the law enforcement community be able to track down known child predators and to find our missing and exploited children promptly. This legislation provides law enforcement with the tools they need to achieve these goals. I am committed to working with Senator Dodd and Senator Collins to enhance this valuable legislation even further.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in support of the Prevention and Recovery of Missing Children's Act. I especially want to commend my colleagues Senator Dodd and Senator Collins for their hard work on this important legislation. Sex offenders prey upon the weakest and most innocent in our society--our youth--and in astonishing numbers. According to the National Center for Missing and Exploited Children, 3.9 million of the Nation's 22.3 million children between the ages of 12 and 17 have been seriously physically assaulted, and one in three girls and one in five boys are sexually abused before the age of 18. Even more troubling is the fact that most sex offenders are not in our prisons. Instead, they remain in our communities, often targeting their next victim. To illustrate, among the Federal Bureau of Investigation's `Most Wanted Fugitives' is a sex offender who allegedly sexually abused a 12-year old boy over a 6-year period after he was released from prison for previous acts of sexual abuse. Time and again we see convicted pedophiles kidnapping, brutally raping, and in some cases, murdering young children. Too often we are unable to thwart such heinous acts because recidivists succeed in evading State registration requirements after they have been convicted and released from prison. We have a duty to our children to ensure that we know where convicted sex offenders are at all times. We also have a duty to take every step to find our missing and exploited children promptly. The Prevention and Recovery of Missing Children Act of 2003 will enhance our ability to track recidivists and find child victims by strengthening sexual offender registration laws and missing children reporting requirements. This legislation (1) requires States to register sexual offenders prior to their release from prison to ensure that they comply with sex registration requirements; (2) requires States to obtain a DNA sample, as well as a photo and fingerprints, from convicted sexual offenders; (3) requires convicted sexual offenders to obtain a driver's license or State identification card as an additional means of identification; (4) requires convicted sexual offenders to report any change in registration within 10 days; (5) requires convicted sexual offenders to verify their registration information every 90 days; (6) makes it a felony offense to fail to comply with any sexual registration requirement; and (7) strengthens the missing children reporting requirements that are imposed on States. It is critical that the law enforcement community be able to track down known child predators and to find our missing and exploited children promptly. This legislation provides law enforcement with the tools they need to achieve these goals. I am committed to working with Senator Dodd and Senator Collins to enhance this valuable legislation even further.

Mr. HATCH

Mr. HATCH. Mr. President, today I have the privilege of rising to support the Defense authorization bill. As we have seen in the recent conflict in Iraq and Afghanistan, the process of transforming our Nation's military has initially met with great success. Many at home will ask what is transformation and what does it mean to the future of our Nation's military? Simply put, transformation is a process of reform that will revolutionize the way the military conducts operations. We saw a glimpse of this emerging reality during the Iraqi conflict where information was gathered from a variety of sensors, whether on the ground or in the air, and that information was transmitted very quickly to commanders who could then exploit the weakness of our enemy. It was a remarkable operation and it reflects the high level of competence and expertise of our Nation's service men and women. This Defense bill will accelerate transformation and ensure that our forces maintain their decisive edge. It is an important accomplishment and the chairman, ranking Democratic member and all the members of the committee deserve our thanks. Their efforts to make military transformation a reality has led them to fund the research and development of such revolutionary systems as the Army's Future Combat System, or FCS. FCS will allow our forces to deploy an Army brigade anywhere in the world within 96 hours. The DDX and the Littoral Combat Ship will also be revolutionary in their stealth characteristics, automation systems, and command and control capabilities. The committee is also continuing its support for the Joint Strike Fighter, the F-35, which will bring a stealth fighter to all of our air and naval/marine air forces. However, I was disappointed to see that the President's request for full funding of the F/A-22 did not occur. This is a system that is a transformational aircraft at its core. The F/A-22's supercruise engines allow for extended supersonic flight--a magnitude longer than its after-burner predecessors. Using stealth capabilities, the F/A-22 is able to penetrate an opponent's airspace and engage enemy aircraft at great ranges. Additionally, unlike our current air superiority fighter the F-15C, the F/A-22 will be able to engage integrated surface-to-air missile systems. Once again using stealth technology, the F/A-22 will be able to approach these missile sites and destroy them, utilizing internally carried GPS-guided bombs. The F/A-22, using this bombing capability, will also have the ability to track and launch attacks against ground-fixed and mobile targets. However, the truly transformational aspect of the aircraft is that it can accomplish all of these missions almost simultaneously. Paraphrasing the Air Force's motto, no aircraft comes close to the F/A- 22's capabilities. I hope that the committee will reverse its decision and fully fund the President's request for 22 of these remarkable aircraft. I also want to mention my deep concern about the funding of the Radiation Exposure Compensation Program, RECA. The RECA program provides compensation to those individuals who became ill after being exposed to radiation from aboverground nuclear tests or as a result of their employment in the uranium industry. In addition to creating eligibility criteria for compensation, the RECA statute created a trust fund to pay claims. Two years ago, the RECA trust fund ran out of money and individuals whose RECA claims were approved by the Department of Justice were given IOUs. In response to this serious matter, we were able to obtain additional funding for the RECA trust fund through the fiscal year 2002 Department of Defense authorization legislation. This legislation provided a ``capped'' appropriation for the RECA trust fund from fiscal year 2002 through fiscal year 2011. Unfortunately, the Department of justice recently informed my office that the capped appropriation for fiscal year 2004 will be about $28 million short and that they expect the trust fund to run out of money by next May. In addition, a report issued by the General Accounting Office in April 2003 states that the RECA trust fund will be inadequate from fiscal year 2003 through fiscal year 2007. According to GAO, there will be a shortfall of $78 million through fiscal year 2011. I am deeply concerned about this funding shortfall and urge my colleagues to do everything possible over the next several months in order to avoid this looming crisis. I do not believe it is fair that RECA beneficiaries, whose compensation has already been approved by the Department of Justice, could be waiting months for their compensation. And that's exactly what will happen if we do not address this situation in a timely manner. So I urge my colleagues to work with me as we pursue every option to find a solution to this very serious problem. There will always be some elements of disagreement in any piece of legislation, but there is no disagreement that the committee continues to strive to compensate our Nation's service men and women for their hard work and dedication. Though we have a long way to go, I am pleased with this year's progress and the committee's authorization of an across-the-board military pay raise of 3.7 percent and an additional targeted pay raise for certain experienced mid-personnel, ranging from 5.25 percent to 6.25 percent, for an overall raise of 4.15 percent. I am also encouraged to see that the committee has provided for an increase in the family separation to see that the committee has provided for an increase in the family separation allowance from $100 per month to $250 per month and an increase in the special pay for duty subject to hostile fire or imminent danger from $150 per month to $225 per month. I would also like to direct the Senate's attention to some for the unsung heroes who have played such important roles in American military victories. These are the thousands of men and women who work in our Nation's depots. They have worked tirelessly to make sure that the weapons, aircraft, and ammunition that our forces use are properly maintained and in fantastic condition. They are the backbone of our military force and they deserve commendation for the tremendous role they have played. Appropriately, when the committee was considering proposals to undermine the strength of our depot system, it was the Senate Air Force Depot Caucus, of which I am proud to be a member, and Senators Inhofe, Chambliss, Bennett, and Nickles, who rose to protect our depots. We have so far been successful in our efforts but we realize that we must be forever vigilant to protect these critical military resources. Again I would like to thank the chairman, ranking Democratic member and all of the members of the committee for their work on this bill. It will be of great service in the support of our Nation's service men and women.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the ``Antitrust Improvements Act of 2003.'' I want to thank the Ranking Democrat Member from the Judiciary Committee, Senator Leahy, for joining me in introducing this measure as an original cosponsor. I hope that we can expeditiously report this measure from the Judiciary Committee and bring it to the Senate floor. The Hatch-Leahy Antitrust Improvements Act of 2003 is long overdue. The bill updates the criminal penalties applicable to antitrust criminal violations and repeals the archaic Title VIII of the ``Antidumping Act of 1916,'' as requested by the administration. After careful examination and study of the current penalty structure for antitrust criminal offenses, Senator Leahy and I have come to agreement that the law needs to be modernized in a number of areas. Under current law, a person who commits a criminal violation of the antitrust laws can be subject to maximum punishment of 3 years imprisonment, while a corporation can be fined a maximum of $10 million. These punishments need to be updated to reflect changes in market conditions, as well as to make them consistent with other changes we enacted last year to white collar criminal offenses as part of the Sarbanes-Oxley bill. Under the Hatch-Leahy proposal, the maximum punishment for an individual would be raised to 10 years imprisonment, and for a corporation the maximum fine would be increased to $100 million. These changes are long overdue and will eliminate the huge disparity present in our laws between the treatment of criminal white collar offenses and antitrust criminal violations. The Sarbanes-Oxley Act passed last year raised the criminal penalties for a number of white collar offenses, but did not do so for antitrust criminal violations. An antitrust price-fixer who defrauds consumers for a total of $5 million should be subject to a penalty which is more consistent with the penalty scheme for other white collar offenses. There is little difference, in my mind, between a market place criminal who takes advantage of consumers and a white collar cheater who steals money from his victims. The Hatch-Leahy proposal also will raise the maximum fines applicable to corporations and other legal entities from $10 million to $100 million per violation. Such a change is needed to reflect the change in our economy and the importance of maintaining a credible deterrent against such conduct by corporations and other entities. It is also essential to note that all criminal fines are paid into a Victims Fund, which is administered by the Justice Department, and ultimately disbursed to support victims' advocacy groups. Criminals who have assets must first pay restitution to any identifiable victims to compensate them for their suffering, and then must pay fines to the Victims Fund. The increased criminal fines will enhance the Justice Department's ability to support advocacy groups who work so hard on behalf of the victims of crime across America. The Antitrust Division's criminal enforcement program has been very successful in the past years, particularly in the area of criminal enforcement against international cartels affecting well over $10 billion in commerce. With these new tools, the Antitrust Division can be even more effective in enforcing our antitrust criminal laws and deterring and preventing future offenses against American consumers. This bill also repeals an archaic provision of law, enacted in 1916, that allows private lawsuits with potential of treble damages against importers or producers for unfair pricing provided they had the intent to injure a U.S. industry. The World Trade Organization, WTO, has ruled that this act violates the United States obligations to address unfair pricing through the specified administrative measures of the Antidumping Agreement. Repealing this statute is an important and necessary step in complying with our obligations under negotiated international treaties. I urge my colleagues to support these important measures and support the Antitrust Improvements Act of 2003.

Mr. HATCH

Mr. HATCH. Mr. President, as everybody knows, I have been working for months--actually perhaps longer than that--on an asbestos reform bill to try to resolve the terrible asbestos problem we have in our society. I have indicated various deadlines throughout these months which I have set. I compliment the business community, the insurance community, the union community, and so many other companies that have been involved for their willingness to work with us. I think we are about there. We have a bill I am going to print in the Record this evening so everybody who is interested in this issue can read it and review it because I intend to file a formal bill this Thursday. I would like to have as many cosponsors as I can get on it because it will be the only way we will get this problem solved. This draft bill is not a formal bill. But I want it to be printed in the Record for all to see. It is a very important draft bill. I hope those who are interested will go over it with a fine-toothed comb and get with us over the next 2 days, if there are substantive suggestions they have. We will be happy to look at those. This is basically what I intend to file as a formal bill this next Thursday. I hope I will have a number of my colleagues on both sides of the floor join with me. I ask unanimous consent this draft bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce the ``Antitrust Improvements Act of 2003.'' I want to thank the Ranking Democrat Member from the Judiciary Committee, Senator Leahy, for joining me in introducing this measure as an original cosponsor. I hope that we can expeditiously report this measure from the Judiciary Committee and bring it to the Senate floor. The Hatch-Leahy Antitrust Improvements Act of 2003 is long overdue. The bill updates the criminal penalties applicable to antitrust criminal violations and repeals the archaic Title VIII of the ``Antidumping Act of 1916,'' as requested by the administration. After careful examination and study of the current penalty structure for antitrust criminal offenses, Senator Leahy and I have come to agreement that the law needs to be modernized in a number of areas. Under current law, a person who commits a criminal violation of the antitrust laws can be subject to maximum punishment of 3 years imprisonment, while a corporation can be fined a maximum of $10 million. These punishments need to be updated to reflect changes in market conditions, as well as to make them consistent with other changes we enacted last year to white collar criminal offenses as part of the Sarbanes-Oxley bill. Under the Hatch-Leahy proposal, the maximum punishment for an individual would be raised to 10 years imprisonment, and for a corporation the maximum fine would be increased to $100 million. These changes are long overdue and will eliminate the huge disparity present in our laws between the treatment of criminal white collar offenses and antitrust criminal violations. The Sarbanes-Oxley Act passed last year raised the criminal penalties for a number of white collar offenses, but did not do so for antitrust criminal violations. An antitrust price-fixer who defrauds consumers for a total of $5 million should be subject to a penalty which is more consistent with the penalty scheme for other white collar offenses. There is little difference, in my mind, between a market place criminal who takes advantage of consumers and a white collar cheater who steals money from his victims. The Hatch-Leahy proposal also will raise the maximum fines applicable to corporations and other legal entities from $10 million to $100 million per violation. Such a change is needed to reflect the change in our economy and the importance of maintaining a credible deterrent against such conduct by corporations and other entities. It is also essential to note that all criminal fines are paid into a Victims Fund, which is administered by the Justice Department, and ultimately disbursed to support victims' advocacy groups. Criminals who have assets must first pay restitution to any identifiable victims to compensate them for their suffering, and then must pay fines to the Victims Fund. The increased criminal fines will enhance the Justice Department's ability to support advocacy groups who work so hard on behalf of the victims of crime across America. The Antitrust Division's criminal enforcement program has been very successful in the past years, particularly in the area of criminal enforcement against international cartels affecting well over $10 billion in commerce. With these new tools, the Antitrust Division can be even more effective in enforcing our antitrust criminal laws and deterring and preventing future offenses against American consumers. This bill also repeals an archaic provision of law, enacted in 1916, that allows private lawsuits with potential of treble damages against importers or producers for unfair pricing provided they had the intent to injure a U.S. industry. The World Trade Organization, WTO, has ruled that this act violates the United States obligations to address unfair pricing through the specified administrative measures of the Antidumping Agreement. Repealing this statute is an important and necessary step in complying with our obligations under negotiated international treaties. I urge my colleagues to support these important measures and support the Antitrust Improvements Act of 2003.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent a few remarks I make be as in morning business.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased today to rise in support of S. Maurice Hicks, who has been confirmed to be a nominee to the U.S. District Court for the Western District of Louisiana. Mr. Hicks has had a distinguished legal career. Upon graduation from Louisiana State University Law School, he worked for the Louisiana Legislative Council. Soon afterwards, he began his 25-year career in private practice as an associate in a Shreveport law firm. He subsequently founded his own law firm and developed an expertise in commercial and insurance-related litigation in State and Federal courts, including general aviation accidents, automobile accidents, product liability, lender liability claims, construction disputes, intellectual property claims, and insurance coverage questions, as well as oil and gas accident and contamination claims. He also has a great deal of experience representing individuals on a wide variety of personal matters including estate planning, personal injury claims, contract negotiations, copyright issues, and general legal matters. All told, he has tried an estimated 150 cases to judgment, acting as sole or lead counsel in the vast majority of them. He has also devoted time in his legal career to pro bono work, including preparing wills for the elderly and working with adjudicated juveniles. He is a member of the Louisiana State Bar, the American Bar Association, and the Shreveport Bar Association. I am confident that Mr. Hicks's extensive litigation experience will make him an excellent addition to the Federal bench.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to speak in support of the pending legislation. I think it is important for the Senate to endorse the work of the House on the issue of international AIDS funding. As with many of our colleagues, I was absolutely thrilled to hear President Bush use the State of the Union Address as an occasion to display his leadership on the critical issue of the pandemics of HIV, tuberculosis, and malaria in Africa, the Caribbean, and the developing world. We must give President Bush, Vice President Cheney, and Secretaries Powell and Thompson a lot of credit for urging the Congress and American public to give a higher priority and more resources to these deadly, intertwined epidemics. An estimated 30 million of our African neighbors are infected with HIV. About 11,000 Africans become infected each day. Tragically, of the 25 million who have died due to HIV infection worldwide, about 20 million, or 80 percent, were Africans. Unfortunately, it is likely that many more millions will follow them to an early death unless significant efforts are made to turn the tide of these epidemics. For example, about 40 percent of the citizens of Botswana are infected with HIV and the infection rate in many other countries is in the 1-in-5 and 1-in-4 range. The Bush administration deserves a lot of credit for making this issue a priority at a time when the Federal budget is once again facing severe strains. If our Nation takes a leadership role in helping nations in the developing world address the problems associated with infectious diseases such as HIV, TB, and malaria, these nations will remember us as an ally who helped them when they most needed aid. Let me be frank. There are many citizens in the developing world who sometimes question the motives of the United States in international affairs. We saw this dynamic at play in the debates leading up to and in the aftermath of the recent war in Iraq. It seems to me that in undertaking this important public health initiative at this time when we are once again struggling to regain control of the Federal budget--there can be no question that the motive of our country is nothing more than to try to help millions of people from perishing from a group of deadly infectious diseases that threaten to destabilize sub-Saharan Africa and the Caribbean for decades to come. If such longtime NATO allies such as France and Germany do not see eye to eye with us on certain aspects of Mideast policy, perhaps they and the rest of the developed world can agree with us that now is the time to roll up our sleeves and make the commitment of necessary resources to help those developing nations fight the interconnected scourge of HIV, TB, and malaria. This is exactly the type of challenge that President Bush will issue at the upcoming G-8 meeting. I hope and trust that the leaders of these countries will work together with us on reversing the course of these epidemics. I have been active in developing legislation related to AIDS since the onset of the epidemic. In my former capacity as a member--and chairman--of the Senate Labor Committee, I was a coauthor of the Ryan White CARE Act, the Terry Beirn AIDS Research Act, and worked to increase appropriations for research and services related to AIDS. I am a conservative. I share the concerns many have expressed that this bill could fund activities with which we disagree. To be clear, I very much disapprove of many of the behaviors by which HIV is transmitted. That being said, early on in this epidemic, I learned the wisdom of the old adage, ``Hate the sin, but love the sinner.'' High-risk behaviors--for example, intravenous drug abuse--are hard to break. But, as a society, can we use behaviors with which many of us vigorously disagree as an excuse to abandon our responsibility to help individuals who are trying to kick their dependency on drugs? I think not. It is important to employ proven public health strategies to prevent the spread of HIV, even if some of these techniques and educational messages can be viewed as controversial if taken out of context of a public health crisis. We must also recognize geographic differences in what strategies are most proven and acceptable. Appropriate public health education prevention and education tactics are often different in Salt Lake City and New York City, or for that matter, Ho Chi Minh City. There was a spirited debate in the House over the proper balance between abstinence and other risk reduction techniques such as the role of condoms. I don't want to replay the whole debate over the rule that 33 percent of prevention funds must be devoted to reenforcing an abstinence message. I believe in abstinence. I also am mindful of the fact that in some geographic regions such an inflexible rule may not represent an optimum use of prevention dollars. There are elements of the House bill that I do not like. But I must salute the efforts of Chairman Hyde and Representative Lantos for working so long and hard to find a consensus and get this legislation out of the House. Let me just add that I have heard the frequent--and not unjustified complaints to my mind--of the House leaders who observe that they are often faced with the prospect of passing what they consider watered down Senate versions of legislation after the House has taken action. It is well known that the House majority leadership views the tax legislation we just adopted earlier this evening to be a prime example of this dynamic. When all is said and done, the Constitution set forth a bicameral legislative body with different membership criteria and different election cycles. It is not surprising that it is often the case that the House and Senate come up with different legislative provisions. In the normal case, these differences can be ironed out by the vehicle of a conference committee. However, sometimes the regular order of the conference report is in tension with outside events. The case of the upcoming G-8 meeting is just one of those circumstances. As my friend Chairman Hyde wrote in an op-ed piece earlier this week, the development of a Senate version of the bill--normally a positive--may have a material adverse effect of the very type of international cooperation that the bill seeks to kindle and redouble. As Congressman Hyde noted, ``A new bill only delays the pressure on House and Senate appropriators to pony up the $15 billion requested by the President over the next five years. . . . `` . . . for the President in his meeting with G-8 leaders in June, a new bill only delays an opportunity he will have at this meeting to use enactment of this legislation to leverage support for worldwide AIDS efforts from our wealthy partners.'' We need to take this view into account. I say this as one for whom the version of the bill developed and introduced by Senators Lugar, Kerry, and Biden is more attractive than what emerged from the House. All in the Senate should commend Senators Lugar, Kerry, Biden, and Frist for their longstanding leadership in this area. From a purely public health standpoint, I think their legislation has a number of advantages over the House bill that we are taking up on the floor today. I also have the utmost respect and praise for what the House accomplished by passing a bill that resolved a number of very difficult issues that lingered for many months. I want to associate myself with the remarks made earlier today by Chairman Lugar and Senator Biden in which they took the position that, despite the Lugar-Kerry-Biden bill's many virtues, the bottom line reality is that to go to conference with a new Senate version of the bill is to risk losing a critical opportunity at the G-8 meeting. Our majority leader, Dr. Frist, who has spent so much of his own time helping the people of Africa, also noted that the bill he called up may not be the perfect bill, but it represents a major step forward in advancing the program that President Bush laid out in the State of the Union Address. As the great philosopher Mick Jagger once noted, you can't always get what you want, but sometimes you find you get what you need. I think that the President's $15 billion proposal and the House bill are exactly what the people of Africa and the Caribbean need. Although I can think of some ways to refine the House language--as Senators Lugar, Kerry, and Biden have suggested, my view is that we can not let the perfect become the enemy of the very good. I urge my colleagues to support H.R. 1298. It is a good bill. The House worked for a long time and came up with a product of which we can all be proud and supportive. We will have ample opportunity in the months ahead and during the appropriations process to fine tune this legislation. But I agree with Senator Frist, let's get this done job done. Now is the time to send the President to France with an enacted bill with which he can attempt to leverage additional support from our closest allies. Being able to put the $15 billion bill on the table as a finished product will do much more benefit than a progress report on the Conference Committee. I believe that H.R. 1298 will be viewed as an important step forward with respect to public health. I cannot help but think that many of the developing world--the very same people we want to enlist with us to fight the battle against terrorism and to resist the entreaties of those who seek to undermine the role of America in world affairs--will take note of our action tonight. They will see that, even at a time when the domestic U.S. economy is struggling to recover, Americans found both the will and wallet to launch a major humanitarian effort against diseases that are severely lowering the quality of life in the developing world. Mr. President, I support H.R. 1298 as a clean bill. I urge my colleagues to support this important measure.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to offer my support for the introduction of this resolution which offers a more than reasonable proposal to fix a confirmation process that Members on both ides of the aisle agree is broken. Simultaneous filibusters of two circuit court nominees who would clearly be confirmed in up-or-down votes are unprecedented. From what I understand, the minority has plans for even more filibusters of judicial nominees. The resulting politicization of the confirmation process threatens the untarnished respect in which we hold our third branch of Government--the one branch of Government intended to be above political influence. There is also a significant constitutional consideration at stake here. In its enumeration of Presidential powers, the Constitution specifies that the confirmation process begins and ends with the President. The Senate has the intermediary role of providing advice and consent. Here is the precise language of article II, section 2: The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law[.] There is no question that the Constitution squarely places the appointment power in the hands of the President. As Alexander Hamilton explained the The Federalist No. 66: It will be the Office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose--they can only ratify or reject the choice he may have made. It is significant that the Constitution outlines the Senate's role in the appointments process in the enumeration of Presidential powers in article II, rather than in the enumeration of congressional powers in article I. This choice suggests that the Senate was intended to play a more limited role in the confirmation of Federal judges. Hamilton's discussion of the appointments clause in The Federalist No. 76 supports this reading. Hamilton believed that the President, acting alone, would be the better choice for making nominations, as he would be less vulnerable to personal considerations and political negotiations than the Senate and more inclined, as the sole decision maker, to select nominees who would reflect well on the presidency. The Senate's role, by comparison, would be to act as a powerful check on ``unfit'' nominees by the President. As he put it, ``[Senate confirmation] would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.'' This is a far cry from efforts we have seen over the past couple of years to inject ideology into the nominations process, and to force nominees to disclose their personal opinions on hot-button and divisive policy issues like abortion, gun control, and affirmation action. Historically, deliberation by the Senate could be quite short, especially when compared to today's practice. Take, for example the 1862 nomination and confirmation of Samuel F. Miller to the U.S. Supreme Court. He was nominated, confirmed, and commissioned all on the same day! The Senate formally deliberated on his nomination for only 30 minutes before confirming him. His experience was not the exception. Confirmations on the same day, or within a few days, of the nomination were the norm well into the 20th century. Contrast the nominations of Miguel Estrada and Priscilla Owen. They were appointed 2 years ago and have yet to be afforded an up-or-down vote by the Senate. Mr. Estrada has now endured six cloture votes more than 3 months after debate on his nomination began. Justice Owen's nomination has been subjected to two cloture votes. Clearly, this is a far cry from the role for the Senate that the Framers contemplated. What was enumerated in the Constitution as advice and consent has in practice evolved to negotiation and cooperation in the best cases, and delay and obstruction in the worst cases--like that of Mr. Estrada and Justice Owen. The Estrada and Owen nominations illustrate what is wrong with our current system of confirming nominees. Despite a bipartisan majority of Senators who stand ready to vote on these nominations, a vocal minority of Senators is precluding the Senate from exercising its advice and consent duty. This is tyranny of the minority, and it is unfair. It is unfair to the nominee, who must put life on hold while hanging in endless limbo. It is unfair to the judiciary, our co-equal branch of Government, which needs its vacancies filled. It is unfair to our President, who has a justified expectation that the Senate will give his nominees an up-or-down vote. And it is unfair to the majority of Senators who are prepared to vote on this nomination. Many of my colleagues, both Republicans and Democrats, agree that the confirmation process is broken. Senator Feinstein stated in a recent letter to the White House that the judicial confirmation process is ``going in the wrong direction'' and is potentially ``spiral[ing] out of control.'' Senator Schumer has also indicated that his goal is to repair the ``broken'' judicial confirmation process and the ``vicious cycle'' of ``delayed'' Senate nominees. The resolution submitted today sets forth a proposal that strikes a balanced solution by allowing for ample, yet not endless, debate on nominations. It provides that cloture may be filed only after a nomination has been pending before the Senate for a minimum of 12 hours. Sixty votes are required to invoke cloture on the first motion. After that, the number of required votes on successive cloture motions would decrease to 57, then to 54, then finally to a simple majority of Senators present and voting. A successive cloture motion cannot be filed until disposition of the prior cloture motion, thereby ensuring that a nomination cannot be confirmed by a simple majority vote until a minimum of 13 session days have elapsed. This proposal has its roots in S. Res. 85, which was submitted by Senator Miller on March 13 of this year. In addition, it is similar to a 1995 proposal of Senator Harkin and Senator Lieberman, which also provided for graduated vote requirements to invoke cloture. In support of their proposal, Senator Harkin stated, ``I may not agree with everything that Republicans are proposing, but they are in the majority and they ought to have the right to have us vote on the merits of what they propose.'' With regard to judicial nominations, I could not agree more. Senator Harkin also cited the research of a bipartisan group named ``Action Not Gridlock,'' which commissioned a poll in the summer of 1994 showing that ``80-percent of independents, 74-percent of Democrats, and 79-percent of Republicans said that when enough time was consumed in debate, that after debate a majority ought to be able to get the bill to the floor. That a majority ought to be able, at some point, to end the debate.'' I would be surprised if a similar poll today would yield substantially different results. I think that the American people understand the fundamental injustice of a minority's ability to block an up-or-down vote on nominations. In support of their 1995 proposal, Senator Lieberman stated, ``Some say there is a danger of a tyranny of the majority. I say that there is a danger inherent in the current procedure of a tyranny of the minority over the majority, inconsistent with the intention of the Framers of the Constitution.'' Today, the ``tyranny of the minority'' to which Senator Lieberman referred over 8 years ago is in effect and wielding the filibuster in a most unjust manner against President Bush's exceptional nominees who have bipartisan support. I support today's resolution because it will dilute the tyrannical power of the filibusters against these nominees. I have alluded to my frustrations with the current filibusters of President Bush's nominations. But the bottom line is this: many of us agree that we must try to repair the broken confirmation process. A bipartisan majority of Senators stands ready to vote on the two nominees who are currently being filibustered. This resolution is a reasonable accommodation that preserves the opportunity for extended debate, yet allows Senators to, eventually, do their duty and vote. I hope that my colleagues will support this resolution.

Mr. HATCH

Mr. HATCH. I ask unanimous consent that the committee amendments be withdrawn.

Mr. HATCH. I send a substitute amendment to the desk.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in opposition to Senator Feinstein's amendment. While I appreciate the efforts by Senator Feinstein to draft a fix to the lone wolf terrorist problem under the Foreign Intelligence Surveillance Act of 1978, referred to as ``FISA'', the amendment simply will not do the job and will continue to expose our country to great national security risks. I will not and cannot accept such risks. Let me be more specific as to my concerns. First, as drafted, the amendment would create only a permissive presumption to authorize a court to approve a Foreign Intelligence Surveillance Act, ``FISA'', application when presented with a lone wolf situation. As drafted, the proposal would provide only that the court ``may'' find the existence of a ``presumption'' that a non-U.S. person engaged in sabotage or international terrorism is an agent of a foreign power under FISA. A permissive presumption creates a significant risk that the FISA court may not be authorized--or may feel constrained to exercise its discretion--to approve a FISA application when presented with a lone wolf terrorist who would otherwise be covered by the Kyl-Schumer-Biden- DeWine approach. Second, the amendment does not clearly delineate how a permissive presumption would be applied by the FISA court. Assuming that the FISA court exercises its discretion and makes a finding that the presumption applies, the FISA court would then have to consider additional evidence in order to grant the application. The amendment does not specify beyond the permissive presumption what specific evidence or what other findings would have to be made in order for the FISA court to approve the application. In sum, by injecting a significant level of uncertainty into the FISA process, the amendment simply creates or even exacerbates the problem which it is intended to fix. We simply cannot take such a risk given the potential devastating consequences posed by the lone wolf terrorist. I would note here that in a letter dated April 30, 2003, the administration opposed this proposal, citing the fact that the effect of the proposal was unclear and that the proposal did not provide any standards to the FISA court to guide the exercise or its discretion. In contrast, the Kyl-Schumer-Biden-DeWine proposal creates clear definitions and would minimize uncertainty in an area where ambiguity could have devastating consequences--that is, where we are in danger of a terrorist attack by a lone wolf. For these reasons, I oppose the Feinstein amendment and urge my colleagues to vote against the Feinstein amendment. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I renew my request to have the Senate stand in recess until 3:20 p.m.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent the Senate now stand in recess until 3:20 p.m.

Mr. HATCH. Of course.

Mr. HATCH

Mr. HATCH. Keep in mind, as of tomorrow, those two will be waiting for 2 solid years. We need to get them done, too. I call on my colleagues on the other side to get rid of their wicked and evil ways and allow these people to have votes up and down.

Mr. HATCH. I heard an objection from the other side. I yield the floor.