Orrin Hatch

Mr. HATCH

Mr. HATCH. Let me interrupt the Senator for one second. I agree with the Senator. I have seen the girlfriend courier go to prison for 10 years when she did not even know what was in the package, or at least claimed she did not, while the boyfriend, the drug dealer, pleaded State's evidence and gets off. Frankly, I do not like that either. I think we should hold hearings on this, and I will be happy to recommend it to the Crime Subcommittee or if it should be elevated to the full committee, we can perhaps do that. I appreciate the distinguished Senator's willingness to try and help us resolve this today because this bill needs to pass. I do not see how anybody can refute what I have been saying here. I do not see how anyone would not want to get tougher with sentencing with regard to these sexual crimes, especially when they have gone way outside the downward departure limits the Sentencing Commission gives them. We do not stop trial judges from granting downward departures, but they should be done in compliance with the purposes of the sentencing guidelines.

Mr. HATCH. Yes.

Mr. HATCH. I personally believe we can do that. We did have a hearing in 2000. The hearing was extensive and led to this legislation. By the way, the number on the chart excluded departure requests made by the prosecutors under Section 5K1.1 of the Guidelines, when a defendant provides ``substantial assistance'' to the government. We counted 4,098 downward departures excluding the so-called ``5K1.1 motions'' made by the government. The number of downward departures has risen from 1,241 in 1991. Any Senator should see that this increase is the reason for our concern. I do not disagree with the distinguished Senator. I think it would be good to find out what the Senator wants to know, and that is, if I understand him correctly, he is asking for a hearing on downward departures.

Mr. HATCH. I would certainly ask the Subcommittee on Crime to do that.

Mr. HATCH. Mr. President, I will take a moment to address some of the significant components of this measure. First, the PROTECT Act of 2003, which I and Senator Leahy introduced following the Supreme Court's decision in Ashcroft v. Free Speech Coalition, has been my top legislative priority since last year. Congress has long recognized that child pornography produces three distinct, disturbing, and lasting harms to our children. First, child pornography whets the appetites of pedophiles and prompts them to act out their perverse sexual fantasies on real children. Second, it is a tool used by pedophiles to break down the inhibitions of children. Third, child pornography creates an immeasurable and indelible harm on the children who are abused to manufacture it. It goes without saying that we have a compelling interest in protecting our children from harm. The PROTECT Act strikes a necessary balance between this goal and the first amendment. The PROTECT Act has been carefully drafted to avoid constitutional concerns. The end result of all of our hard work is a bill of which we can be proud, one that is tough on pedophiles and child pornographers in a measured and constitutional way. The legislation also addresses AMBER alert, America's Missing Broadcast Emergency Response. The bill will extend the AMBER alert system across our Nation. Our entire Nation recently rejoiced with the Smart family after Elizabeth was found alive and reunited with her loved ones. Her discovery, facilitated by everyday citizens who followed this case, demonstrates the importance of getting information about these disappearances out to the public quickly. When a child is abducted, time is of the essence. All too often, it is only a matter of hours before a kidnapper commits an act of violence against the child. Alert systems, such as the AMBER alert system, galvanize entire communities to assist law enforcement in the timely search for and safe return of child victims. This legislation will enhance our ability to recover abducted children by establishing a coordinator within the Department of Justice to assist States in developing and coordinating alert plans nationwide. The act also provides for a matching grant program through the Department of Justice and the Department of Transportation for highway signs, education and training programs, and the equipment necessary to facilitate AMBER alert systems. I support the national AMBER Alert Network Act because it will improve our ability on a national level to combat crimes against our children. Also, I want to take a moment to highlight another very important measure. The legislation includes the Code Adam Act, which would require Federal buildings to establish procedures for locating a child that is missing in the building. The provision is named after the son of John Walsh, the host of America's Most Wanted and the John Walsh Show. As everybody knows, John Walsh's son, Adam, was kidnapped from a mall in Florida and murdered in 1981. Retail stores around the country, including Wal-Mart, have initiated Code Adam systems in memory of Adam, and they have successfully recovered many missing children. This would implement the same system for building alerts in all Federal buildings. It is a measure I am proud to support in memory of John Walsh's son, Adam, and in honor of John Walsh's commitment and vigilance to fighting for crime victims and our children throughout the country. On Tuesday, John Walsh attended the meeting of the conferees to discuss this legislation. Yesterday, John Walsh issued the following statement: This incredible bill may be one of the most important pieces of child protection legislation passed in the last 20 years. I commend Senator Hatch's leadership on the Judiciary Committee and Chairman Sensenbrenner's leadership on the House Judiciary. Pushing this bipartisan legislation through is very appropriate during ``National Crime Victims' Rights Week.'' This bill, which is a loud voice for the smallest victims--children--has sent a loud message to those who would prey upon our most vulnerable segment of society. I also want to highlight other important measures contained in the conference report that will enhance existing laws, investigative tools, criminal penalties, and child crime resources in a variety of ways. As the chart shows--the print is small--in addition to the PROTECT Act, AMBER Act, and the Code Adam Act, the legislation would, No. 1, provide a judge with the discretion to extend the term for supervision of released sex offenders up to a maximum of life; No. 2, extend the statute of limitations for child abductions and sex crimes to the life of a child; No. 3, denies pretrial release for child rapists and child abductors; No. 4, require a mandatory sentence of life imprisonment for twice-convicted serious child sex offenders; No. 5, increase penalties for kidnapping of under 18-year-old victims by nonfamily members; No. 6, add new wiretap predicates that relate to sexual exploitation crimes against children; No. 7, increase penalties and provide prosecutors with enhanced tools to prosecute those who lure children to porn Web sites using misleading domain names; No. 8, reauthorize and double the annual grant to the National Center for Missing and Exploited Children to $20 million each year through 2005; No. 9, authorize funding for the Sex Offender Apprehension Program to allow money to be used by local law enforcement to track sex offenders who violate terms of their release; No. 10, create a national Internet site for information regarding registered sex offenders; No. 11, establish a pilot program for national criminal history background checks and a feasibility study in order to provide a background check process for volunteers working for organizations, such as the Boys and Girls Clubs of America, National Mentoring Partnership, and the National Council of Youth Sports; No. 12, reauthorize grant programs to provide funding of child advocacy centers; No. 13, reforms sentencing for criminals convicted of crimes against children and sex crimes. All of that is done in this particular bill. It is a very important bill, as you can see. The bill also institutes sentencing reforms so that criminals convicted of crimes against children receive the stiff sentences they deserve. This provision, which was adopted at the conference, represents a significant compromise from the original House bill containing the so-called Feeney amendment which passed the House by a vote of 357 to 58. Indeed, the overall House bill passed the House by an overwhelming vote of 410 to 14. In response to concerns raised about the Feeney amendment, I worked with Chairman Sensenbrenner, Senator Graham, and my colleagues to develop a bipartisan compromise which was ultimately supported by not only all of the Republican conferees, but by Democratic conferees as well--Senator Biden, as well as Congressmen Frost, Matheson, and Hinojosa. The compromise proposal would: No. 1, limit, but not prevent, downward departures only to enumerated factors for crimes against children and sex offenses; No. 2, change the standard for review of sentencing matters for appellate courts to a de novo review, while factual determinations would continue to be subject to a ``clearly erroneous'' standard; No. 3, require courts to give specific and written reasons for any departure from the guidelines of the Sentencing Commission; and No. 4, require judges to report sentencing decisions to the Sentencing Commission. It is important to note that the compromise restricts downward departures in serious crimes against children and sex crimes and does not broadly apply to other crimes, but because the problem of downward departures is acute across the board, the compromise proposal would direct the Sentencing Commission to conduct a thorough study of these issues, develop concrete measures to prevent this abuse, and report these matters back to Congress. For those who want to oppose these needed sentencing reforms, I remind them that the Sentencing Reform Act of 1984 was designed ``to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.'' While the U.S. Sentencing Commission promulgated sentencing guidelines to meet this laudable goal, courts, unfortunately, have strayed further and further from this system of fair and consistent sentencing over the past decade. Let me refer to this chart. As the chart shows, during the period 1991, in the left part of the chart, to the year 2001, the number of downward departures--in other words, soft-on-crime departures, excluding those requested by the Government for substantial assistance and immigration cases along the Southwest border--has steadily climbed. In 1991, the number of downward departures was 1,241 and rose by 2001 to a staggering total of 4,098. This chart shows the rate of downward departures has increased over 100 percent during this period--in fact, almost four times--and nearly 50 percent over the last 5 years alone. This problem is perhaps most glaring in the area of sexual crimes and kidnapping crimes. This chart of downward departures from sentencing guidelines for sex crimes shows that during the last 5 years, trial courts granted downward departures below the mandated sentencing in 19.20 percent of sexual abuse cases, 21.36 percent of pornography and prostitution cases, and 12.8 percent of kidnapping and hostage-taking cases. Think about it: Downward departure in these types of cases that involve our children. This many departures happens to be very disturbing and astounding considering the magnitude of the suffering by our Nation's youth at the hands of pedophiles, molesters, and pornographers. Let me give one example of the abuse this sentencing reform will correct. In one particular case, a defendant was charged--this is a convicted child pornographer--with possession of 1,300 separate images of child pornography, depicting young children in graphic and violent scenes of sexual exploitation that were sickening and horrible. For example, one of the images showed a young girl wearing a dog collar while engaging in sexual intercourse with an adult male. This same defendant was engaging in online sexual communications with a 15-year- old girl. The sentencing guideline for this defendant mandated--these are the sentencing guidelines the distinguished Senator from Massachusetts, the distinguished Senator from Delaware, and a number of us, including myself, passed long ago--the sentencing guidelines for this defendant mandated a sentence in the range of 33 to 41 months. Yet the trial judge departed downward to a sentence of only 8 months, citing, No. 1, the defendant's height. He was just short of 6 feet tall, and he said that would make him vulnerable to abuse in prison. No. 2, he said the defendant was naive. And No. 3, the defendant's demeanor--he was meek and mild and compassionate. We all have common sense, but this is simply incredible and outrageous. Congress has to act, and it has to act now. The compromise sentencing reform provisions contained in the conference report are a reasonable and measured response to this problem. The compromise proposal would simply require judges to sentence these vicious defendants in accordance with the law and not seek new areas or new legal justifications for reducing sentences for these defendants without specific authorization from the U.S. Sentencing Commission. Contrary to the oft-repeated claims of its opponents, the compromise proposal is not a mandatory minimum. Judges handling these important criminal cases can still exercise discretion to depart downward, but only when the Sentencing Commission specifies the factors that warrant a downward departure. The other major reform in the compromise adopted in the conference report is consistent with prevailing law, requiring de novo review of a trial judge's application of facts to law. Indeed, this is the same standard that applies to appellate review of critical motions to suppress physical or testimonial evidence. There is no reason for appellate judges to give deference to the trial judge on such questions of law. Even after the compromise amendment, the trial judge's factual determinations will still be subject to great deference under a ``clearly erroneous'' standard. If a discretionary downward departure is justifiable, it is difficult to understand why anyone would be opposed to the appellate courts reviewing them under the same standard that applies to other important areas of law. I wish to take a moment to remind everyone to focus on the problem we face: an epidemic of abuse of our children. According to the National Center for Missing and Exploited Children--these facts really are not only astounding, they are deplorable--in our country, 3.9 million of the Nation's 22.3 million children between the ages of 12 and 17 have been seriously physically assaulted, and 1 in 3 girls and 1 in 5 boys are sexually abused before the age of 18. That is unbelievable, but that is what is going on, and that is why this bill is so important. That is why we need to pass it today. Considered in this context, we can have an honest debate about the issues, but we have an epidemic that needs to be addressed and addressed now. We simply have no greater resource than our children. It has been said that the benevolence of a society can be judged on how well it treats its old people and how well it treats its young. Our children represent our Nation's future, and I commend all of my colleagues for their tireless efforts on behalf of children and families and urge my colleagues to pass this critical legislation. Quite frankly, our Nation's children deserve no less. I know there are some misunderstandings from the conference, but virtually everybody but a number of Democrats have signed off on this, including a number of Democrats have signed off on this conference report, knowing what it says, knowing what it means, knowing what it was represented to mean. I acknowledge some of my dearest friends on the other side feel otherwise, but I believe it was made quite clear during conference what this actually means. I urge my Democratic colleagues to stop any partisanship or partisan gamesmanship and support this needed legislation. I do not think we should let our children or our communities down. We need to pass this legislation without delay and send it to the President. The epidemic of downward departures in child pornography cases has created what I like to call the ``Me Too'' sentencing pitch from the defense. In a recent case in Kansas, the judge departed from the Sentencing Commission's guideline sentence of 27-33 months in prison, and imposed only probation. As part of the reason for the departure, the court stated that it found defense counsel's argument compelling-- that in 27.4 percent of cases involving possession of child pornography, sentencing courts have downwardly departed. In other words, the problem is so out of hand, that defense attorney's point to the downward departure statistics and say, ``Me too, Judge, Me Too.'' That is where we are. That is what we are trying to fix. I have to say I have done my best to try to accommodate both sides. I do not know how to accommodate them any differently. Even as late as today, I have tried to see if there was any possibility, but there is not any. I think those who stayed for the full conference knew exactly what was involved, and it is a bipartisan bill. That is apparent from the size of the vote over in the House. I yield the floor.

Mr. HATCH. Mr. President, I don't know anybody on the Senate floor who can roar better than my ``lion'' friend from Massachusetts. He is a great Senator. And he certainly feels very deeply on this issue. Apparently I have irritated him, and I feel sorry about that, but he is totally wrong in what he says. I can see why he might feel that way. Now, let me just say this, that I believe the letters that he was referring to, with regard to the courts of this country complaining about this, were before the compromise we enacted in this particular conference report. I got a lot of complaints, too. That is why I tried to make the change and worked it out with Chairman Sensenbrenner and others in the House who were not very happy to make the change. My friend called and said: Can you do something in this area? I said I would try, which I did. And we came up with the Hatch-Graham- Sensenbrenner amendment. I apologize for my voice, but I have semi- laryngitis. But we came up with the Hatch-Graham-Sensenbrenner amendment, which I believed moved this in the right direction and I thought would please my friend from Massachusetts, but it did not. Now, it needs to be pointed out that this is a bipartisan conference report. On the Senate side, we voted for this report 5 to 2, meaning it was bipartisan. On the House side, they voted in larger numbers for this report. I have to mention that neither the distinguished Senator from Massachusetts nor the distinguished Senator from Vermont signed the conference report, so they did not agree with it. And I understand that they are upset about the language in the report. I cannot help that. But we are talking about only 2 percent of the cases that are affected by this departure language--only 2 percent of all the cases. I thought I did a pretty good job in getting it done. I have to mention one other thing: the distinguished Senator from Massachusetts talking about a blacklist for judges, because he claims that these reports have to be sent to the Attorney General. Well, remember, sometimes Attorneys General are Republican and sometimes they are Democrat. I think most Attorneys General really try to do a good job. I know the current one is trying to do his best job against crime in this society. The current Attorney General approved and was for the original Feeney language--which we changed--and so were many Members of the House. They were not happy with this change. Let me just make some points here that are important. It is not surprising that the American Civil Liberties Union, the Federal Public Defenders, the American Bar Association, and the Judicial Conference have opposed the Feeney amendment. One seriously wonders what would have been heard from the ABA, the ACLU, the Leadership Conference on Civil Rights, and others if upward departures--in other words, making it tougher on crime--had grown at the absurd and dizzying rates that downward departures have. Can anyone seriously believe that they would have been asking for more time to study this issue if upward departures had gone out of control, like these downward departures, that are skyrocketing? So everybody in our country understands, we have judges on the bench--not many, but enough--who, in these child molestation, child degradation, and child pornography cases--these children's criminal cases--who are continually reducing the sentences recommended by the Sentencing Commission for these criminals who are hurting our children. Look at this chart. Since 1991, when there were 1,241 downward departures--or lesser sentences for these types of people--we are now up to 4,098 in 2001. And I am sure it was much higher for 2002 and that for 2003 it will be much higher. Can anyone seriously believe that these liberal groups would be asking for more time to study this issue, as is being asked for here? I suspect there would be a loud, steady drumbeat for swift legislative action by Congress to stop such an outrage--not more time for the Sentencing Commission to study the issue--that is, if the upward departures, in other words, the tougher on crime departures, were followed by the courts. Well, that isn't the case. These are downward departures, making it easier on these pedophiles, sex criminals, child rapists, child pornographers. I further suspect that these groups would not have waited as long and as patiently as we have in watching downward departures increase steadily year after year, making it easy on criminals who do these types of things to our children. Additionally, I am not surprised the Judicial Conference is opposed to this amendment, if it is. It is important to note, however, the compromise is limited to these serious crimes against children and sex crimes. But because the problem of downward departures is acute across the board, the compromise proposal would direct the Sentencing Commission to timely conduct a thorough study of these issues, develop concrete measures to prevent and limit this abuse--this abuse of downward departures, making it easy on child molesters--and report these matters back to Congress. In fact, to place this matter in historical context, in debate on the Sentencing Reform Act, the distinguished Senator from Massachusetts observed, with respect to the Judicial Conference and sentencing disparity, the following: With all due respect to the Judicial Conference, the judges themselves have not been willing to face this issue and to make recommendations and to try and remedy this situation. He acknowledges that some judges are out of control on these issues. And I think this chart shows they are out of control in children's cases, and it is time to stop it. That is what this bill does. Along these lines, consider the following disparity, demonstrating the increasing undermining of the sentencing guidelines by some of these judges. The average downward departure rate for nonsubstantial assistance cases in the Fourth Circuit is 5.2 percent, while in the Tenth Circuit it is 23.3 percent. The average downward departure rates are making for easier sentences for these sex criminals. It is this type of sentencing disparity that risks turning our criminal justice system of sentencing into--to borrow yet another phrase from Senator Kennedy on this issue--``a system of roulette.'' I urge support for this conference bill. It squarely increases punishment for child-related crimes and ensures that those who commit these crimes are incarcerated accordingly. And it says the game is over for judges: You will have some departure guidelines from the Sentencing Commission, but you are not going to go beyond those, and you are not going to go on doing what is happening in our society today on children's crimes, no matter how softhearted you are. That is what we are trying to do here. We are tired of it. I am tired of having children abused. This bill will go a long way toward stopping that kind of abuse. Let me talk about departure rates and the amounts for child-related crimes. The conference report addresses the glaring penalty gaps that exist in the sentencing guidelines. The bill represents a compromise from various points of view. I did my best to try to get a compromise that I hoped my colleagues on the other side would be happy with. They are not, some of them. But I have to say that the distinguished Senator from Delaware was. He voted with us on this conference report, as he should have. I believe others on the committee should have also. For instance, there was one view that believed all downward departures should be banned, all of them. That was a view by some. The Feeney amendment, approved in the House before conference, moderated that view by merely limiting departures. I cosponsored an amendment in the conference with Chairman Sensenbrenner and Senator Graham that we have been talking about that went even further by limiting departures related to crimes victimizing children. This bill puts a stop to the very troubling practice of certain trial courts which depart from the sentencing guidelines in crimes involving children and sex crimes. The following very troubling statistics related to child crimes demonstrate why this is necessary. According to the Sentencing Commission's 2001 Sourcebook of Federal Sentencing Statistics, trial courts reduce the sentence of those convicted of sexual abuse of children from the guidelines over 16 percent of the time. Think of it. Why do we have these sentencing rules to begin with if they are not going to be followed, especially in these children's cases? On average, child courts reduce the sentences of those convicted of sexual abuse by an astonishing 63 percent from the guideline range. I would think my colleagues would want to put a stop to that kind of inappropriate decisionmaking by some judges. For those convicted of pornography and/or prostitution-related offenses, trial courts departed from the recommended guidelines over 18 percent of the time, reducing these defendants' sentences by a staggering 66 percent. Think about it. We are going to let that continue just because some of these groups don't like it or want to be more compassionate towards these criminals? This many departures and this amount of sentencing reductions are astounding given the trauma inflicted on victims of these particular types of offenses, and require us in Congress to step in and ensure the sentences in these areas remain uniform and consistent with national expectations. Let me add an overall perspective to this compromise. The compromise agreed to in conference will affect only crimes against children and sex crimes; that is, sexual abuse, pornography, prostitution, and kidnapping/hostage taking. These types of cases represent only 2 percent of the Federal criminal caseload. This is only 2 percent of the cases that would have been affected by the original Feeney amendment-- they all would have been affected by the original Feeney amendment--and only 2 percent of the cases that would have been affected by the version that passed the House by an overwhelming 357 to 58 vote. And we have complaints about this? Hopefully in the future the Sentencing Commission will more closely monitor these types of disparities and will step in to fix these problems in a timely manner. However, when they do not, it is incumbent upon the Congress to do so. That is precisely what this bill does. We say in this bill: We are sick of this, judges. You are not going to do this anymore except within the guidelines set by the Sentencing Commission. There will be downward departures, but they will meet the guidelines and not just be off-of-the-top departures like the 190 pound man, five feet 11, almost six feet tall, who had committed a child crime and got reduced 400 percent or more. It is absurd to suggest the Sentencing Commission should be given time to study this issue. The Sentencing Commission has been aware that Congress was greatly concerned about this problem since the year 2000, even before then. Indeed, these very issues were squarely raised with the Sentencing Commission during the Senate hearing in October 2000. Both Senators Thurmond and Sessions directed many questions at the commissioners and others about their concerns that trial judges systematically undermine the sentencing guidelines by creating new reasons to reduce these sentences. Indeed, Senator Sessions expressed his concerns about the troubling trend of departures based on novel and creative reasons directly to the chair of the Sentencing Commission. Senators Thurmond and Sessions were assured the Sentencing Commission intended to address this issue by including it in a larger report due November 2002, addressing how well the guidelines were accomplishing the statutory purposes of sentencing. It is now 6 months beyond the due date, and no such report has been produced. In fact, the Sentencing Commission announced just this past March it has completed portions of the report on cocaine sentencing and surveys related to Federal judges. However, as to the departure issues raised at the Senate hearing, the Sentencing Commission continues to study the issue, 2 years, 3 years later. It is apparent this issue, while an obvious priority to the Congress, is simply not a priority to the Sentencing Commission. And we have done something about it in this conference report that has bipartisan support. After having decided we can no longer be held hostage to the schedule set to study this issue by the Sentencing Commission, only to watch it unilaterally change, action is now even more necessary. It has now been over 2 years since Congress highlighted this problem in an oversight hearing. Further delay would effectively abdicate our responsibilities as legislators and politically accountable members of our society, something the Sentencing Commission and the ACLU and the ABA and other groups are not. With regard to the Hatch-Sensenbrenner-Graham compromise amendment, this amendment limits, but does not prevent, downward departures only to enumerated factors for crimes against children in sex offenses including, one, kidnapping; two, kidnapping involving a minor victim; two, sex trafficking of children; three, sexual abuse crimes; four, sexual exploitation and other abuse of children; five, transportation for illegal sexual activity and related crimes; and, six, obscenity. Changes in the standard for review of sentencing matters for all cases in Federal courts to a de novo review while factual determinations would continue to be subjected to ``a clearly erroneous'' standard. We require the courts to give specific and written reasons for any departure from the guidelines. That is a logical thing to do. We require the judges to report sentencing decisions to the Sentencing Commission. They don't like that because that means more work. I have to confess, I sympathize somewhat with these judges because they are being paid less than a number of law review graduates in their first year in private practice. The fact they don't want to increase their workload, I don't blame them for that. But it seems to me in this case, it is certainly justified. Contrary to the oft repeated claims of the opponents, the compromise proposal is not a mandatory minimum. Judges handling these important criminal cases can sometimes exercise discretion to depart downward, but only when the Sentencing Commission specifies the factors that warrant a downward departure, only when they have the right to do so as listed by the Sentencing Commission. That seems to me just a gimmick. Yet we have had all this fuss and bother over this. Requiring de novo review of a trial judge's application of the facts to the law is totally reasonable. This is the same standard that applies to appellate review of critical motions to suppress physical or testimonial evidence. There is no reason for appellate judges to give deference to the trial judge in such questions of law. Even after my compromise amendment, the trial judge's factual determinations would still be subject to great deference under a ``clearly erroneous'' standard. If a discretionary downward departure is justifiable, it is difficult to understand why anyone would be opposed to the appellate court's reviewing them under the same standard that applies to other important areas of law. I hope my colleagues are not obstructing this bill, because they are upset they didn't get their way in the conference--when, in fact, they were defeated 5 to 2 on these issues. To suggest the conference report suffers from a procedural flaw, I think, is going way too far. They argue, incredibly, that the Hatch-Sensenbrenner-Graham amendment to the Feeney amendment to the House bill was improperly modified in conference. That is simply ridiculous and we all know it. What occurred was straightforward. In response to Democratic concerns raised about the drafting of the Hatch-Sensenbrenner-Graham amendment to the conference report, we made a number of technical changes to comport with Democratic Senator Biden's understanding of the amendment, as well as concerns raised by a Congressman during the conference, as to the meaning of one particular provision. In good faith, my staff addressed these technical drafting issues and made certain revisions to comport with these Democratic suggestions. Senator Biden was right. I agreed with these changes. Senator Biden agreed with these changes as well. He voted for the conference report. Keep in mind these changes had the effect of cutting back on the restrictions contained in the Feeney amendment as it applies to sentencing decisions by judges to ensure that the restrictions apply only in a limited category of cases. In the end, Democratic members to the conference report--Senator Biden and Representatives Frost, Hinojosa, and Matheson--all supported the conference report. For some Democratic members to now complain about the process is simply unfair, and I question those positions. I would like to refer to the transcript my colleague was referring to because he believes I represented one thing when in fact I meant another. Let me start with line 759: Chairman Hatch. The proposed amendment would, and I hope my colleague from Massachusetts will listen carefully to this-- Ted, if I could get you to listen to this. Senator Kennedy. Yes. Chairman Hatch. Because, hopefully, this will help some of your concerns. The proposed amendment would limit, but not prevent, downward departures only to enumerated factors for crimes against children and sex offenses, including: one, kidnapping at Section 1201; two, sex trafficking of children, Section 1591; three, sexual abuse crimes, Chapter 109(a); four, sexual exploitation and other abuse of children, Chapter 110; and five, transportation for illegal sexual activity and related crimes. That's Chapter 117, and also Chapter 71, dealing with obscenity, I've been informed. It will change the standard for review of sentencing matters for appellate courts to a de novo review, while factual determinations would continue to be subject to the ``clearly erroneous'' standard. It would require courts to give specific and written reasons for any departure from the guidelines. It will require judges to report sentencing decisions to the Sentencing Commission. The Sentencing Reform Act of 1984 was designed, as Congress wrote in the text of that bill, ``to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.'' Now, while the United States Sentencing Commission promulgated sentencing guidelines to meet this laudable goal, courts have strayed further and further from this system of fair and consistent sentencing over the past decade. The rate of discretionary downward departures, excluding downward departures for defendants' cooperation, has increased virtually every year since 1991. But now Chairman Sensenbrenner--and I don't know whether the Senator from Massachusetts was there at the time; maybe he was not there. Chairman Sensenbrenner made it very clear. He said: Now there are several other issues that I think have got to be addressed. First of all, with respect to the standards of appellate review, that applies to all cases and it is a de novo review. That is what we understood. This is in direct response to the Supreme Court's decision in the case of Koon v. United States. Now, you may recall this involved a conviction for a civil rights violation of one of the police officers accused of beating up Rodney King, which we all saw on TV. The point is, I think everybody else there recognized what the Hatch- Sensenbrenner-Graham amendment was meant to be. I feel badly that my colleague feels like he was misled, because I don't think I misled him. I think the language I just read shows I didn't. I acknowledge and I express sorrow that he feels the way he does. I feel badly he feels the way he does because I would never deliberately mislead a colleague under any circumstances. I might make a mistake or forget something I might have said earlier, or something like that, but I would never deliberately mislead a colleague. I certainly didn't in this case. I don't think anybody there understood it the way it is being seen through the eyes of some on the other side. I think to blow up this conference report over this is not only a mistake, it is a failure to recognize the tremendously irritating and damaging downward departure situation going on in the country today-- letting these criminals off with regard to children's crimes. I would add that the Reno Justice Department argued in the Koon case for a de novo standard for appellate review. This was the right argument to make.

Mr. HATCH. Let me finish first. It was a position supported by the Congressional Black Caucus. I have a copy of that letter. Let me read it: As members of the Congressional Black Caucus, we are writing to you because of our concern about the sentencing of Officer Laurence Powell and Sergeant Stacey Koon by Judge John Davies in the Rodney King civil rights case. We are troubled that the sentence for the crime was reduced to 30 months upon the court's consideration of mitigating facts. Such a reduction for mitigating factors may be appropriate in other circumstances. However, we feel that the defendant's special status as police officers, with special duties owed to the public, should have militated against such a significant reduction. As you well know, the maximum possible penalty was ten years and fines of up to $250,000. Your federal prosecutors were asking for seven to nine years. Our federal sentencing guidelines recommended minimum sentences in a range of four to seven years in prison. Instead, Judge John Davies made broad use of subjective factors. He stated that he read only letters addressed to him from the friends and families of Officer Powell and Sergeant Koon. He argued that much of the violence visited on Rodney King was justified by King's own actions. However, these officers were convicted on charges of violating Rodney King's civil rights. We believe these mitigating factors did not justify so large a reduction given the defendants' special responsibilities as police officers. In addition, Judge Davies did not afford proper weight to the racist comments made over police radio by those convicted on the night of the beating in discounting race as a motivation for the beating. He similarly failed to take into account the remarkable lack of remorse shown by Officer Powell and Sergeant Koon since their conviction. People of good will all over this country and of all races were heartened when Officer Powell and Sergeant Koon were convicted by a jury of their peers, a verdict made possible by the Justice Department's resolve to file civil rights charges and by the phenomenal performance of federal prosecutors. With these severely reduced sentences, however, we are sending a mixed message. Are police officers going to be held responsible for excessive use of force or not? We think what has been lost, in all this, is that police officers have an enhanced responsibility to uphold the law. Notwithstanding Judge Davies' authority to modify the sentencing guidelines, most experts agreed that the minimum four to seven years sentence should have been followed in this case. We realize that the trial judge is afforded sufficient latitude in sentencing, but we urge the Department of Justice to appeal these sentences. We need to reexamine these sentences so that justice can finally be done in this difficult, painful case. Only then can we begin to put this behind us. It is signed by a large number of good Members of Congress. What we have proposed is that there should be de novo review. We set a standard that is not an easy standard to overcome. We have shown that we have an outrageous situation in this country where a number of judges have been giving extra downward departures far in excess of what anybody in their right mind would think they should do. This is happening in criminal cases where children are victims, and we are trying to stop that because we think there has to be responsibility here. We believe that in these child molestation cases, pornography cases, prostitution cases, child rape cases, and kidnaping cases the sentencing guidelines ought to be followed. Nothing says these judges cannot follow the downward departure guidelines if they so choose in their discretion as the trial judges, but they can no longer conjure up reasons outside the guidelines to reduce criminals' sentences. Basically, that is what the conference report says. I would think everyone in this body would vote for this conference report. I think it does it right and does what we said it would do in the conference, and it does what a bipartisan majority in the House and the Senate said it should do. Frankly, I believe that is right.

Mr. HATCH

Mr. HATCH. Mr. President, today my heart is heavy. Though our Nation's forces continue to make dramatic gains to rid the world of a tyrant who cares not for basic human dignities, three sons of Utah have made the ultimate sacrifice so that a nation may be reborn in freedom. There names are SSG James W. Cawley, United States Marine Corps Reserve, SSG Nino D. Livaudais, of the Army's Ranger Regiment, and Randall S. Rehm, of the Army's 3rd Infantry Division. To their families, I know that no words that I say here today will alleviate the sense of loss that you feel. You see, I too, lost a brother during the Second World War. But their families should know this, that our communities are with you and will stand behind you, that our State of Utah is praying for you and keeping you in our thoughts, and that our Nation will remember and honor your loss. The death of these three men shows once again that it is our Nation's finest who answer the call of the colors. Sergeant Cawley of Layton had dedicated his whole life to the protection of others. He was a Marine Reservist, who in civilian life was a Salt Lake City police officer. He was a member of that department's SWAT team and gang unit. Before joining the department he served for 12 years on active duty with the Marines, traveling the world. During one of his deployments to Okinawa he met his wife Miyuki, and they have two children, Cecil and Keiko. I join the entire Senate in telling those children that their father was someone to be proud of. Sergeant Livaudais grew up around Ogden. He might have only been 23 years old, but he was already a combat veteran twice serving in Afghanistan. He truly died a hero's death, racing to protect a pregnant woman who was being used as a human shield. He fell victim to an explosion caused by a homicide bomber. His selfless act only reaffirms his unit's motto: ``Rangers Lead The Way.'' He leaves behind a wife, two children, and a third child on the way. To his children who, in the coming years, might look back on these events in order to get a better understanding of who their father was and what he stood for, they should know this: Your father represents the very best that our Nation has to offer. Sergeant Rehm was not a native of Utah, but we were honored to have him and his family in Utah for 3 years when the Sergeant ran the Army's Salt Lake City recruiting office. He helped so many young people make the important decision to enter Government service. He died in the fighting near Baghdad International Airport, but his memory and spirit will live on in all of the young soldiers that he introduced to the Army. They will now carry on his traditions of honor and service. After all wars monuments are built and ceremonies are held. However, for me the greatest memorial that can be erected to theses fine men is to remember their names--James Cawley, Nino Livaudais, and Randall Rehm--and to learn from their example, that even now, in these challenging times, all people deserve to be free. It is our responsibility to these heros that we realize a better world for which they fought.

Mr. HATCH

Mr. HATCH. I ask for the yeas and nays.

Mr. HATCH

Mr. HATCH. Madam President, I rise today to express my support for the CARE Act, which is currently before the Senate. This bill is dedicated to improving the incentives for individuals and corporations to donate to charitable entities. Through their generosity, Americans have shown their true colors as a compassionate, caring people. Unfortunately, many charities have had a difficult time raising money since the tragedy of September 11, as the economy has remained weak. This bill, which is a priority for President Bush, will help America's charities to continue their invaluable work. I applaud the leadership of Chairman Grassley and Ranking Democrat Baucus in getting this bill through the Finance Committee and onto the Senate floor. I also applaud the perseverance of Senators Santorum and Lieberman, who have championed this bill for many months and have kept at it despite the discouragement of not being able to get the unanimous consent needed to bring it to the floor until very recently. The CARE Act includes several important incentives to encourage additional contributions to charity. One of the more important ones is the provision to allow individuals who do not itemize to take a deduction under certain circumstances. I am particularly pleased that the Finance Committee chose to craft this incentive as a targeted provision, rather than as a provision that would allow a deduction for the first dollar of contributions. Two-thirds of Americans do not itemize their deductions, but most of them do make contributions. Allowing a deduction for contributions that were already being made is not an incentive--it is a giveaway. The provision in the CARE Act encourages us to stretch and give more. It provides a much bigger incentive for Americans to donate that marginal dollar and it also lowers the cost of this provision to the Treasury. I am also very pleased that the bill includes two other provision, which I have been promoting for some time. The first would simplify a complex area of the current law and eliminate significant roadblocks that now stand in the way of businesses with excess book inventory to donating those books to schools, libraries, and literacy programs, where they are much needed. Unfortunately, the current tax law benefits for donating such books to schools or libraries are often no greater than the tax benefits for donating such books to schools or libraries are often no greater than the tax benefits of sending the books to the landfill. The provision in the CARE Act addresses the obstacles of donating excess book inventory by providing a simple and clear rule whereby any donation of book inventory to a qualified school, library, or literacy program is eligible for an enhanced deduction. This means that booksellers and publishers would receive a higher tax benefit for donating the books rather than throwing them away and would thus be encouraged to go to the extra trouble and expense of seeking out qualified donees and making the contributions. The second provision deals with a problem that owners of S corporation have in donating their stock to charitable entities. Under the current law, a donor of S corporation stock worth $500 but having a tax basis of $100 would receive a deduction for ony the amount of the basis, or $100. A holder of shares in a C corporation, however, is allowed to deduct the full $500 value of the stock. There is no justification for this disparity in treatment between S corporation and C corporations, and a provision in the CARE Act corrects it. I am also pleased that another provision, which Senator Lincoln and I added as a amendment to the bill in the Finance Committee, is included in the CARE Act. Similar to the books provision I mentioned before, this provision provides a larger deduction, and therefore a stronger incentive, for businesses to donate their excess inventory to charitable entities, such as schools or churches. The CARE Act includes many worthwhile incentives designed to increase charitable contributions. Its enactment should make a real difference in our Nation. There is, however, one portion of the CARE Act in which I am disappointed. As an offset, the bill includes a package of measures designed to crack down on abusive corporate tax shelters. While I am certainly not in favor of abusive tax shelters, I am concerned that part of this package of antitax shelter provisions, known as the clarification of the economic substance doctrine, could also close down legitimate tax planning techniques and give the Internal Revenue Service an unprecedented degree of authority to recast the tax treatment of transactions it does not like, regardless of whether the transactions are otherwise allowed under the tax law. The provision would also override a significant body of case law, some of which reaches back almost to the inception of the income tax. I hope that the codification of the economic substance doctrine can be deleted in the conference with the House. All in all, however, the CARE Act is a very good bill, and it deserves the support of the Senate. I urge all of my colleagues to vote for this bill.

Mr. HATCH

Mr. HATCH. Madam President, I am pleased today to speak in support of Dee Dodson Drell, who has been nominated to the United States District Court for the Western District of Louisiana, Alexandria Division. Mr. Drell began his legal career with the U.S. Army Judge Advocate General's Corp upon graduation from Tulane University School of Law in 1971. He began his tour of duty as a defense counsel for courts martial, handling both misdemeanor and felony-level cases. He next moved to the position of prosecutor, during which time he was named Chief of Military Justice. He remained in that position until he completed his military service in 1975, after which he entered private practice. Mr. Drell then joined the law firm of Gravel, Roy & Burnes. His practice focused primarily on personal injury, criminal defense and general civil litigation. In 1981, Drell joined the law firm of Gold, Weems, Bruser, Sues & Rundell, where he is currently a member and director. His primary areas of practice are insurance defense, contracts, employment law, health benefits and civil litigation. Mr. Dell has a strong commitment to pro bono work that extends beyond his regular law practice. It includes work with organizations that provide services to people suffering from AIDS and AIDS-related illnesses. He provides legal services as a volunteer counselor for Central Louisiana AIDS Support Services and AIDSLaw of Louisiana, Inc. He has also served as a legal advisor to the board of Shepherd Ministries, an ecumenically-based religious organization that provides services to the disadvantaged. Throughout his career, Mr. Drell has won many accolades, such as recognition in Outstanding Young Men of America, 1976; designation as a Louisiana Bar Foundation Charter Fellow, 1998; and receipt of the Professionalism Award from the Crossroads-American Inn of Court, 2000. I am confident that Mr. Drell will serve on the bench with compassion, integrity and fairness. I yield the floor. Madam President, I am also pleased today to speak in support of Richard D. Bennett, who has been nominated to the United States District Court for the District of Maryland. Mr. Bennett is a distinguished practitioner whose career includes two terms of service with the United States Attorney's Office for the District of Maryland. His outstanding legal skills have been widely recognized, including mention in the 2003-2204 edition of The Best Lawyers in America. Mr. Bennett began his legal career following his graduation from the University of Maryland School of Law in 1973. After graduation, he worked for the Baltimore law firm of Smith, Somerville & Case, where he specialized in insurance defense, as well as general civil and criminal litigation. Mr. Bennett left private practice in 1976 to serve his first term with the U.S. Attorney's Office for the District of Maryland as Assistant U.S. Attorney. While there, he persecuted white collar crime, drug offenses, environmental violations, and virtually every kind of criminal case brought by the office. He served in that position until the end of 1980. Next, Mr. Bennett and another former prosecutor formed a law partnership, Marr & Bennett, in early 1981. The practice specialized in federal and state litigation, with an emphasis on insurance and white collar criminal defense. Mr. Bennett then merged his practice with the firm of Weaver & Bendos in 1989. He continued to specialize in Federal and State litigation. In 1991, Mr. Bennett left Weaver, Bendos & Bennett to serve a second term with the U.S. Attorney's Office, this time as a U.S. Attorney, after being nominated by President George H.W. Bush and confirmed by the Senate. He served in that capacity until 1993. Mr. Bennett has since returned to private practice as a partner with Miles & Stockbridge, one of Maryland's most prestigious law firms. His practice has increasingly focused on white collar criminal defense, government investigations, internal investigations, and grand jury practice. He served as Special Counsel to the Government Reform and Oversight Committee of the U.S. House of Representatives from August 1997 until June 1998. Mr. Bennett has the support of both Maryland Senators, along with a unanimous ``Well Qualified'' ABA rating. With his legal acumen and experience as both defense counsel and federal prosecutor, I am confident that Mr. Bennett will make a fine jurist on the Federal bench. I yield the floor.

Mr. HATCH

Mr. HATCH. I rise today to express my unqualified support for the confirmation of Justice Priscilla Owen to the Fifth Circuit Court of Appeals. Last evening I talked about the importance of this debate and this vote. I talked about this vote as an opportunity to remedy the mistreatment Justice Owen received last September when she was voted down in committee, along party lines, and blocked from receiving a Senate vote. We know she would have been confirmed in the Senate by both Democrat and Republican Members, but unfortunately she was never allowed to make it to that point. I talked about this vote as an opportunity for the Senate to show we can be fair to a well-qualified nominee and provide him or her a simple up-or-down vote. Finally, I talked about this vote as an opportunity to place a great judge, Justice Owen, on the bench. I convened a hearing for Justice Owen last month because I wanted to provide all of my colleagues an opportunity to ask questions of her and to hear her answers. I want to clear up misstatements and misrepresentations of her record dating back to last year. I was confident Justice Owen would again demonstrate her intelligence and capacity for Federal judicial service. To put it mildly, she certainly did not disappoint. She handled questions with insightful and substantive answers. She was a superb witness, one of the best we have ever had before the Senate Judiciary Committee. We heard valuable testimony from Senator Cornyn, a new Senator, but no newcomer to Justice Owen's record or the workings of the Judiciary. In fact, he served with Justice Owen on the Texas Supreme Court for a period of 3 years, serving side by side with her. He had been a Texas trial judge before that time. He also served as a Texas State attorney general for the last 3 years. Senator Cornyn answered a frequent criticism leveled at Justice Owen, a criticism that is false, that she is out of the mainstream on her own court. If anyone would know whether Justice Owen, in fact, fits this characterization, Senator Cornyn would know. He worked next to her, heard the very same oral arguments she did, examined and debated the same law and facts with her, and decided the very same cases she did. There is no doubt, then, Justice Cornyn disagreed with Justice Owen at times. I can reel off a few case names as well as anyone. But the significant thing is that he supports her confirmation despite attempts by some to create division where none exists. Former Texas Supreme Court Justices John L. Hill, Jack Hightower, and Raul Gonzalez, all Democrats, are united in concurring with Senator Cornyn's opinion calling Justice Owen unbiased and restrained in her decisionmaking and applauding her for her impeccable integrity, for her great character and great scholarship. The diverse and formidable group, made up of 15 former presidents of the Texas State bar, wrote in a letter of support: Although we prefer different party affiliations and span the spectrum of views of legal and policy issues, we stand united in affirming that Justice Owen is a true, unique, and outstanding candidate for the appointment to the Fifth Circuit. There is no dissent from Hector De Leon, immediate past president of Legal Aid of Central Texas, who applauds Justice Owen's commitment to improving the quality of legal services for the poor, or from Mary Sean O'Reilly, lifelong member of the NAACP, pro-choice Democrat who worked with Justice Owen on gender and family law issues. They are joined in support by E. Thomas Bishop, president of the Texas Association of Defense Counsel, who writes: I cannot imagine a more qualified, ethical, and knowledgeable person to sit on the Fifth Circuit; and William B. Emmons, self-styled Texas trial attorney, Democrat, and ``no friend of Priscilla Owen''--those are his words--who, nevertheless, said: Justice Owen will serve the Fifth Circuit of the United States exceptionally well. Those who have been in support of Justice Owen are familiar with her record of service, but it deserves brief review in the Senate. Priscilla Owen is a native of Palacios, Texas, a town located on the southern coast of Texas, grew up in Waco, TX, and attended school there. Following graduation from high school, Justice Owen enrolled in Baylor University where she received a bachelor of arts degree cum laude. She attended Baylor University School of Law with a scholarship, again excelling in studies by achieving cum laude and serving as a member of the law review. She scored the highest score in the State on the Texas bar exam after finishing school, a terrific accomplishment in a State the size of Texas. Justice Owen worked for the Houston firm Andrews & Kurth as a commercial litigator for 17 years, gaining seasoning in appearances before Texas State and Federal courts and courts elsewhere. Besides extensive work in oil and gas litigation, she handled securities matters and did work on cases heard by the Texas Railroad Commission. She became a partner with the firm in the mid-1980s. Priscilla Owen successfully ran for a seat on the Texas Supreme Court in 1994 and was reelected in the year 2000 for another 6-year term. Her reelection run in 2000 was supported by every major Texas newspaper. She won with 84 percent of the popular vote. Based on this shining record of academic and professional achievement, the American Bar Association awarded Justice Owen a unanimous well-qualified rating. That is after sending representatives into the State, talking to people on all sides of various issues; talking to people on both sides of the political spectrum, both Democrats and Republicans; talking to fellow members of the bar, those who knew her the best. They came up with a unanimously well-qualified rating, the highest rating the American Bar Association can give. This rating does mean that Justice Owen is at the top of the legal profession in her legal community; that she has outstanding legal ability, breadth of experience, and the highest reputation for integrity, and that she has demonstrated or exhibited the capacity for judicial temperament. Only a few people achieve that select highest rating. Justice Owen is a member of the prestigious American Law Institute, the American Judicature Society and the American Bar Association, and a Fellow at the Houston and American Bar Associations. She has taken a genuine interest in improving access to justice for the poor while serving on the bench as a liaison to State committees on pro bono and legal services for the indigent. She worked with others to successfully petition the Texas State Legislature to provide better funding for organizations devoted to helping the poor with legal support services. Earlier, I mentioned a letter of support for Justice Owen, which was sent by Hector De Leon, past President of Legal Aid of Central Texas. Let me just quote a small part of that letter, because it makes the point better than I can, regarding Justice Owen. Justice Owen has an understanding of and a commitment to the availability of legal services to those who are disadvantaged and unable to pay for such legal services. It is that type of insight and empathy that Justice Owen will bring to the Fifth Circuit. Justice Owen is active in her church and respected in her community. She is a mentor to young women attorneys, having made it to the top of the legal profession during a period of time when relatively few women went to law school--fewer were hired by preeminent firms--and even fewer are advanced thereafter to partnership. Justice Owen did all three. As a judge, Justice Owen is an advocate for breaking glass ceilings in the legal field. She has served on the Texas Supreme Court Gender Neutral Task Force, a working group seeking to promote equality for women in the Texas legal system, and addressing problems of gender bias in the profession. And, she served as one of the editors of the Gender Neutral Handbook, a guide made available to all Texas lawyers and judges, and intended to educate and create awareness about gender bias. If you look at her record, it is hard for me to imagine why my colleagues on the other side of the floor, on the Judiciary Committee, voted against her in any way. I don't see how they could possibly vote against her with the record that she has. But they did. I suspect that politics had a little bit to do with it. Justice Priscilla Owen is an excellent choice for the Fifth Circuit. There is no doubt that some will pull isolated bits and pieces out of Justice Owen's rich and textured background in an attempt to discredit and diminish her accomplishments and abilities and jurisprudence. There is no doubt some will avoid mentioning the positive aspects of Justice Owen's career, and despite this fact, it bears noting once more that those who know Priscilla Owen best know what a terrific judge she is now and will be on the Federal court. I have come to know Justice Owen and her record and I agree she has been an excellent State judge, and she promises to be an excellent Federal judge. I ask my distinguished colleagues in the Senate to join me in voting for the confirmation of Justice Priscilla Owen to the Fifth Circuit Court of Appeals, and I certainly hope this great justice is not going to be filibustered, as Miguel Estrada has been. Nevertheless, we are prepared for whatever happens here. She stands in a unique position as one of the finest women lawyers in the country, one of the finest women justices in the country, and one of the finest people who really has worked so hard for women and women's issues and gender issues who has ever served in any court in this country. It is very difficult for me to see how anybody could vote against her. I hope we can have this vote, up or down, within a relatively short period of debate. I hope everybody will get to the floor and say what they have to say about Justice Owen, and we will be happy to enter into debate at any time. I yield the floor.

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

Mr. HATCH

Mr. HATCH. Mr. President, to answer my distinguished friend, the reason Priscilla Owen is being brought up today is because we are gradually trying to move the President's nominees as quickly as we can. She was nominated on May 9, 2001, almost 2 years ago. I am trying to do it, as close as I can, in chronological order, which seems to me to be the way to go, when I can. I am not the only one who made this decision; a number of people did, including the majority leader, who desired to bring Priscilla Owen up today. I commend him because she really deserves to be brought up at this particular time. She has been waiting for almost 2 years and went through what I consider to be a tremendously insensitive hearing when the Democrats controlled the committee, and then came back for another hearing just a short while ago, where I think she more than substantiated the reasons why the President would have picked her to be a nominee for the Circuit Court of Appeals. So I rise today to express my enthusiastic support for the confirmation of Justice Priscilla Owen to the Fifth Circuit Court of Appeals. The Senate's consideration of Justice Owen's nomination is important. It is important because it represents an opportunity to remedy the mistreatment Justice Owen received last September when she was voted down in the Judiciary Committee along party lines and not allowed a vote on the Senate floor, where she would have been confirmed by Members of both parties. The decision by the committee last September was unprecedented, representing the first time a nominee rated unanimously well qualified by the American Bar Association had been voted down by the Judiciary Committee. This is despite the fact that Justice Owen had--as she does today--the full, unqualified support of her home State Senators, both of whom testified on her behalf. It is important to note that with regard to circuit court of appeals nominees, it is important to have the support of both Senators, but it is not absolutely essential. In the case of district court judges, it has been all but essential. The reason is that circuit court of appeals nominees represent not just one State but a whole series of States, as is the case in the Fifth Circuit. It is important because this nomination will demonstrate whether the senate will be fair to a qualified nominee and provide an up and down vote. This isn't just a qualified nominee; this is a well-qualified nominee, according to the American Bar Association. It is perhaps most important because we have the opportunity to place a great judge on the Fifth Circuit Court of Appeals. Three weeks ago we took the first step in remedying the wrongful treatment inflicted on Justice Owen last fall by holding an open hearing in which I invited all Members to come and ask her questions. Members were also free to submit any written questions following the close of the hearing. The hearing was informative. It was productive. Justice Owen answered every question during the hearing and responded to lengthy written questions with substantive can cogent answers. As she has done throughout this process, Justice Owen consistently demonstrated her intelligence, her legal acumen, and her respect for the law. The hearing was valuable for several reasons. First, the hearing allowed us to obtain some much needed perspective and insights from Senator Cornyn, who, as we all know, served with Justice Owen on the Texas Supreme Court and observed her work as a judge day to day for 3 years in hundreds of cases. He knows her. He knows what it is to be a judge and to be called upon to make hard decisions in close cases. He knows the workings of the Texas Supreme Court. He was most helpful in placing into proper context what outsiders seem to think was extremely unusual or striking criticism from her court colleagues in a few cases--and darn few cases. Senator Cornyn showed that this type of talk is common among court members and that such criticism is perfectly normal and even healthy for a well-functioning judiciary. Judges disagree from time to time, and they may express themselves with fervor during such times. That is to be expected. Senator Cornyn personally attested to Justice Owen's dedication to her judicial duties. He has seen the work and the care she puts into deciding each case. He also attested to her commitment to enforcing the will of the legislature. As Senator Cornyn said. I know [Justice Owen] is a good judge who always tries to faithfully read and apply the law. That is simply what good judges do, and we can ask for nothing more. In this regard, it strikes me once again as significant that the two individuals conscripted as star witnesses to discredit Justice Owen as an activist judge--Judge Alberto Gonzales and Senator Cornyn--are actually two of her biggest supporters and attest to her fitness for the bench and for this position on the Fifth Circuit Court of Appeals. Nothing can change that fact no matter how hard some try to pretend otherwise. Justice Owen is also firmly supported by former Texas Supreme Court Chief Justice John L. Hill and former Justices Jack Hightower and Raul Gonzalez, all of whom are Democrats and all of whom know Justice Owen's record. Justices Hightower and Gonzalez have the additional perspective of judges who personally served with Justice Owen. Fifteen past presidents of the Texas State Bar, Democrats and Republicans alike, have enthusiastically endorsed her. Those who know Justice Owen and her record best know she will make an excellent Federal circuit court of appeals judge. Second, the hearing allowed us to set the record straight: Justice Owen does not engaged in results-oriented jurisprudence nor does she see such practices as desirable or legitimate in any manner. In addition, there is no credible evidence that Justice Owen harbors biases against plaintiffs or defendants or favors one interest over another. Some have charged that she consistently rules against certain plaintiffs and legal rights. Justice Owen has provided the committee with a long list of decisions which refute that charge. One the issue of results-oriented decisionmaking, let me quote what she said to Senator Kennedy on this subject: I do not try to achieve a result, and I don't look at whether I want one side to win or the other side or one segment of our population to be favored over another. That is not my job. Later she said, regarding her decisions: Sometimes workers win, sometimes big companies win. The outcome is determined by the law applied to the facts, not my favoring one side or the other. These are the words of a judge who understand her role and respects the limits of her judicial authority. We don't need politicians and legislators dedicated to achieving certain results, policies, or outcomes serving on the bench as judges who would do the same. Incidentally, I find it particularly ironic that on the one hand, Justice Owen is faulted by some for engaging in results-oriented decisionmaking, and, on the other hand, she is faulted for not engaging in what amounts to results-oriented decisionmaking. Thus she is criticized for not reaching ``balance'' in her decisions, for voting too often or too infrequently--take your pick--in the majority or dissent--take your pick--in particular types of cases--take your pick-- or for not sticking up for, showing sufficient ``sympathy'' for, or displaying enough ``dedication'' to, certain types of litigants. Of course, we should shun jurists who are looking to achieve ``balance'' in their decisions or do what may be popular or controversial in a case--apart from what an honest reading of the law and facts in that case would dictate. And it is serious error--indeed, a misunderstanding of the role of our independent judiciary--to simply translate a judge's decision in a certain case as that judge's intent to achieve a certain outcome or set some broad policy that will favor or prove ``hostile'' to certain types of future litigants. A decision naturally will prove ``detrimental'' to one of the parties--one side loses the case--but we can hardly criticize the judge who is following the law as passed by the legislature. It is not a matter of looking to see whether some partisan interest group has characterized a judge as ``deaf'' to certain concerns or ``coldhearted'' to certain plaintiffs; it is a matter of looking to see whether a judge can put aside personal feelings and apply the law. Sometimes, as Senator Cornyn helpfully pointed out during the hearing 2 weeks ago, a judge may or may not like the posture of the case or the record developed in the lower court, but an appellate judge must take the case as it is and make the best decision based upon the law and the facts. That is a judge's job, that is what we expect judges to do, and that is all we should expect judges to do. Justice Owens has lived up to that standard. Third, the hearing set the record straight on Justice Owen's decisions in judicial bypass cases. No matter how much some would prefer to argue the point, these cases were not about the right to an abortion. There was never any question about the girls' right to an abortion. Indeed, Justice Owen argued in the Doe 2 case that, based on a 1990 Supreme Court decision striking down a Minnesota statute requiring a minor girl to obtain consent from both parents, a statute requiring a girl to notify both parents would also be questionable under the Constitution. Clearly, Justice Owen recognizes a woman's right to obtain an abortion. These cases were about whether a minor girl should be required to notify one parent before obtaining an abortion, in accordance with the Texas state legislation enactments. And Justice Owen has been well within the mainstream of her court in the 14 decided cases, joining the majority judgment in 11 of those cases. And we should never lose track of the fact that out of the close to 800 bypass cases since the Texas statute was passed, a mere 12 girls have appealed all the way to the Texas Supreme Court. These are usually the toughest cases. By this time, two courts--the trial and the appeals courts--have already considered the bypass petitions and turned them down. Given the deference appellate courts must pay to the findings of the trial court--the court which is in the very best position to listen to the girl, consider all relevant evidence, and hear the arguments-- the decision is likely to affirm the lower court rulings denying a bypass. That should be no great surprise. Certainly Justice Owen and her colleagues on the Texas Supreme Court disagreed in some cases, but in all cases there was a genuine effort to apply applicable precedent. These parental consent cases show that Justice Owen takes Supreme Court precedent seriously: she looks to precedent for guidance, she cites it, and she makes a good-faith effort to apply it to the case at hand. She understands the rules of appellate review and takes pains to follow them. She is a judge who defers to the legislature's considered judgment in its policy choices and earnestly seeks to ascertain legislative intent in her rulings. None of her opinions, to quote the Washington Post, ``seem[] to us [to be] beyond the range of reasonable judicial disagreement.'' I have been on the Judiciary Committee a long time--27 years now--and I have seen many, many nominees come through the committee. Justice Owen takes a backseat to no one. She has shown herself to be a brilliant, fair, and restrained jurist who will be a strong credit to the Federal courts. Simply put, Justice Owen deserves to be on the bench. I urge my colleagues to do what is right and join me in supporting her confirmation to the Fifth Circuit Court of Appeals. Mr. President, I suggest the absence of a quorum.

Mr. HATCH. Mr. President, I ask unanimous consent the Senate now resume executive session for the consideration of Calendar No. 86, Priscilla Richman Owen, of Texas, to be U.S. Circuit Judge for the Fifth Circuit.

Mr. HATCH. There will be no action on this tonight.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased today to speak in support of Judge Cormac Carney, who has been nominated to the United States District Court for the Central District of California. Following his graduation from Harvard Law School in 1987, Judge Carney entered private practice with the high powered law firm of Latham & Watkins. He worked there until 1991. He next worked as an associate for another widely respected law firm, O'Melveny & Myers, where he became a partner in 1995. He remained at O'Melveny until his appointment to the Orange County Superior Court in 2001, where he has presided over both criminal and civil matters. Prior to his appointment to the bench, Judge Carney was an exceptional business litigator who typically represented Fortune 500 companies as both plaintiffs and defendants. His areas of expertise included complex matters such as real estate, partnership, lender liability, environmental law, intellectual property, and insurance coverage. Even with a heavy workload and prestigious clients, Judge Carney devoted numerous hours to pro bono work for the disadvantaged. As a partner at O'Melveny, he supervised the firm's junior lawyers on pro bono cases, which included housing issues, education, civil rights, and the rights of homeless people. Because of the firm's extensive pro bono work, the Orange County Bar Association awarded it the Pro Bono Services Award, and the Orange County Public Law Center awarded it the Law Firm of the Year Award. Since his appointment to the bench, Judge Carney has become involved with victims' rights. He currently serves as a member of the Governing Board of Victim Assistance Programs in Orange County. The Board provides support and guidance to all victim assistance programs and advises on procedure and policies relating to operations of victim centers located throughout Orange County. Although Judge Carney has had a stellar legal career, I must note that before he made law his chosen profession he played professional football, first for the New York Giants and then for the Memphis Showboats. The legal profession is fortunate that he ultimately joined our ranks, since he has served on both sides of the bench with compassion, integrity, intelligence and fairness. I am confident that he will serve with the same qualities on the Federal district court bench.

Mr. HATCH

Mr. HATCH. Mr. President, I compliment the distinguished minority leader for this very sensitive and very important statement about this wonderful person. As someone who belongs to a family which has lost my older brother, and lost a brother-in-law--an older brother in the Second World War, and brother-in-law in Vietnam--and then have another brother-in-law who is suffering tremendously from his war wounds, who fought both in the Inchon Reservoir in Korea and also in Vietnam, I have to say these are the greatest of all Americans. I really appreciate his sensitivity in delivering this message for the Senate here today.

Mr. HATCH

Mr. HATCH. Mr. President, the National Center for Missing and Exploited Children is a critical component of our Nation's battle against child pornography and child exploitation. It is absolutely dedicated to eradicating these evils, and its members work tirelessly towards this end. The Center deserves more than just kind words for these heroic efforts; Federal funding is necessary for it to continue this good work. Indeed, Congress has tasked the Center with many missions, including maintaining the cyber-tipline that receives reports of on-line child pornography, which the Center forwards to appropriate law enforcement officials. In this, as well as many other areas, the Center forms a valuable partnership with both Federal and State law enforcement officials and prosecutors in redressing a host of crimes against children. The Center's cause is just and its history of performance is excellent. I am pleased to be the lead cosponsor of legislation that will continue to authorize funding for the National Center for Missing and Exploited Children for the next four years. Senator Leahy and I introduced this legislation in the 107th Congress, and our bipartisan effort continues in this new Congress. Our bill again authorizes funding at $20 million per year--twice the previous authorization--in recognition of the severity of the problem and the increased duties the Center has taken on. As the Chairman of the Judiciary Committee, I am confident that this bill will become law very soon. I hope all of my colleagues will join Senator Leahy and me in supporting this bill.

Mr. HATCH

Mr. HATCH. Mr. President, the National Center for Missing and Exploited Children is a critical component of our Nation's battle against child pornography and child exploitation. It is absolutely dedicated to eradicating these evils, and its members work tirelessly towards this end. The Center deserves more than just kind words for these heroic efforts; Federal funding is necessary for it to continue this good work. Indeed, Congress has tasked the Center with many missions, including maintaining the cyber-tipline that receives reports of on-line child pornography, which the Center forwards to appropriate law enforcement officials. In this, as well as many other areas, the Center forms a valuable partnership with both Federal and State law enforcement officials and prosecutors in redressing a host of crimes against children. The Center's cause is just and its history of performance is excellent. I am pleased to be the lead cosponsor of legislation that will continue to authorize funding for the National Center for Missing and Exploited Children for the next four years. Senator Leahy and I introduced this legislation in the 107th Congress, and our bipartisan effort continues in this new Congress. Our bill again authorizes funding at $20 million per year--twice the previous authorization--in recognition of the severity of the problem and the increased duties the Center has taken on. As the Chairman of the Judiciary Committee, I am confident that this bill will become law very soon. I hope all of my colleagues will join Senator Leahy and me in supporting this bill.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent to have printed in the Record the Rules of Procedure for the Committee on the Judiciary for the 108th Congress.

Mr. HATCH

Mr. HATCH. Mr. President, I would like to be interrupted at the end of 1 minute so I can give 2 minutes to the distinguished Senator from Pennsylvania. Let me say something about the memoranda that my Democratic colleagues demand the White House release. These are appeal, certiorari, and amicus recommendations that Mr. Estrada authored while a career lawyer at the Justice Department. Let's be clear on that. I keep hearing my Democratic colleagues say there is all this precedent for the release of documents by the White House. Well, of course, the White House releases documents to the Senate every day. But they are not appeal, certiorari, and amicus recommendations, and there is absolutely no precedent for the large-scale fishing expedition they seek on Mr. Estrada--not any. I agree with the seven former living Solicitors General, four of whom are Democrats, who say that the White House is right not to release Mr. Estrada's memoranda.

Mr. HATCH. Mr. President, how much time remains?

Mr. HATCH. Mr. President, how much time remains on the other side?

Mr. HATCH. Mr. President, I reserve the remainder of my time.