Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, today I rise to speak about the medical liability and litigation crisis in our country. This is a crisis that is preventing patients from accessing high- quality health care--or, in some cases, any care at all--because doctors are being driven out of practice. It is a crisis that is needlessly increasing the cost of health care for every American. This is not the first time we have addressed this issue. As many of you will recall, we debated, and passed, medical litigation relief in the Commonsense Product Liability and Legal Reform Act back in 1995. Unfortunately, the language we passed was stripped from that bill in conference. I am sorely disappointed that--in the ensuing eight years--we have not addressed this problem. As a result, the situation has become worse, not better; the problem has expanded, not shrunk. We must act now if we are to fix the crisis in health care delivery this has caused in many parts of our country. I was pleased last summer when President Bush announced his desire to address this issue. I am even more pleased that the President has continued to emphasize the importance of the problem and the need for reform in speeches around the country, and in his State of the Union Address. We in the Senate welcome the President's support in this effort. Make no mistake. We have a health care crisis in this country, one that is due in large part to litigation that is out of control. But not all Americans may be aware of just how serious are the ramifications of this crisis. This map, with data supplied by the American Medical Association, shows the states that currently are experiencing a medical liability crisis and those that are showing signs of developing a crisis. The 18 red states are in crisis. The 27 yellow states are showing problem signs. Only five states are currently ``ok''. On a map with last year's data, only 12 states were in crisis. The problem is growing and it reaches from coast to coast. I ask unanimous consent to have printed in the Record a July 18, 2002, Associated Press article, ``Soaring Malpractice Insurance Squeezes out Doctors, Clinics,'' that highlights some of the problems faced by patients and doctors.

Mr. HATCH. The article points to the ``national problem that doctors say is obliging many of them to flee certain states or give up certain specialties--or the entire profession--because of skyrocketing insurance premiums linked to soaring jury awards.'' The article notes, as I am sure my colleagues from Nevada are acutely aware, that the University Medical Center trauma clinic in Las Vegas-- the only Level one trauma center in Nevada--closed on July 3 last year. The 58 doctors who were associated with the trauma center had requested, but had not received, much-needed relief from soaring medical liability insurance costs. Let me give you just one example of the havoc this wreaked. On the 4th of July, the day after the center closed, Jim Lawson could not access the Level one trauma care that he needed. Mr. Lawson was the victim of a serious traffic accident, and on that day, the closest Level one trauma center was more than an hour away by air! Unfortunately, Mr. Lawson did not survive. The trauma center was hurriedly reopened on July 13, but with only 10-15 doctors working on a temporary basis, with limited liability. Commenting on the trauma center's closure, its director, Dr. John Fildes, stated, ``The standard of care in our community was set back 25 years.'' Mr. Lawson's family spoke at a press conference here in the Senate last week. His death was a tragedy to his family and to his community. No one knows whether Mr. Lawson could have been saved had he been treated at the nearby trauma center. But would any of us want that to happen to one of our loved ones? To be forced to bypass the nearest trauma center, and travel an hour to receive emergency care? I certainly would not. And, the Senate should take the necessary steps to ensure that it does not happen to anyone else. But this crisis is not limited to emergency services. Ensuring the availability of adequate obstetric care is also an increasing problem. According to the same Associated Press article, one Arizona hospital, a clinic in Oregon, and two Pennsylvania hospitals closed their obstetrics units recently. Several counties in upstate New York have no obstetricians covering night shifts. What does that say to the expectant mother whose child comes into the world at night . . . ``There's no room at the inn''? The crisis is particularly acute in the farming and ranching communities of rural America. Mr. President, I ask unanimous consent to print in the Record a Washington Post article from February 3, 2003, titled ``Insurance Crisis Hits Hard on Prairie; Denied Coverage, Obstetrician for 3 Wyoming Counties Ends Practice.''

Mr. HATCH. Mr. President, I ask unanimous consent that the time I use be charged against the resolution.

Mr. HATCH

Mr. HATCH. Let me ask my full question--of this country? Secondly, is the Senator aware that Mr. Estrada, and the White House, have not only offered to come up and speak personally and answer every question of any Senator, they have offered to answer any questions in writing. He has answered all of those questions in writing for this body. And is the Senator aware that we have also offered to even have another day of hearing, as long as we get an up-or-down vote, where any Senator who wants to can ask any question he wants to on the committee? I would even go broader than that. I invite any Senator on the Democrat side who wants to ask any question to come to the committee and ask him. But we would want a vote certain in order to do that. No candidate nominated in the history of this country has ever made that offer, and I am just saying I think he has answered the questions and I think the Senator just is not aware of it.

Mr. HATCH. Will the Senator yield on that?

Mr. HATCH. Which he has done.

Mr. HATCH. Will the Senator yield one more time?

Mr. HATCH. He has answered the questions in writing as well as orally in a very lengthy hearing. Is the Senator aware at any time in history--I am sure he is not--where a fishing expedition has been allowed into the Solicitor General's confidential privileged memoranda, on all appeals, certiorari, and amicus curiae recommendations? That has never happened in the history of this country. I have offered to the side of the distinguished Senator to make available, if there are specific questions, I would go to the White House and see what I can do. But never has there ever been allowed a fishing expedition into all of these very privileged documents without some reason for authorizing it, and there is no reason offered by my colleagues on your side.

Mr. HATCH. Mr. President, it is disturbing to me that much of the debate regarding the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit has focused on previous nominations considered by this Senate. In particular, the nominations of Judge Richard Paez and Judge Marsh Berzon, who now sit on the Ninth Circuit Court of Appeals, have been raised over and over again by Senators opposed to Mr. Estrada. The discussion of previous nominations is troubling for a number of reasons. First, Judge Paez and Judge Berzon were confirmed by the Senate. They were not subjected to a filibuster as is the case for Miguel Estrada. Second, on a personal level, it is disappointing to me that these two judges should be used as examples of alleged Republican obstructionism, when I worked hard for their confirmation, argued against delay, and supported their nominations. To continue to inject prior nominations into the Estrada debate indicates to me that the opposition is more interested in some sort of retribution for misperceived wrongs rather than fulfilling the Senate's constitutional duty of advice and consent. I have heard it stated on the Senate floor, referencing the so-called filibuster of Judge Paez, ``what goes around comes around.'' I certainly hope that it is not the case that the refusal to give a vote to Miguel Estrada is some sort of payback. The distinguished Minority Leader described the Senate's responsibility very well nearly three years ago as we were concluding debate on the nominations of Judge Paez and Judge Berzon. He stated on March 9, 2000, `` . . . [T]here is a time and a place for us to consider any nominee and, once having done so, we need to get on with it.'' I agree with the Democratic leader. We have considered the nomination of Mr. Estrada and now we need to get on with the vote--up or down, as Senators choose to cast their vote. Senator Daschle continued, ``I do not know who is going to be President next. I do not know who is going to be in the majority in the next Congress. But let's just assume that the roles are reversed . . . and we have a Republican President--which I do not think is going to happen. Do we want to pay back our colleagues for having made these people wait as long as they have? . . . I do not want to hear about that in this body. There is going to be no payback. . . . Will we have votes and vote against nominees on the basis of whatever we choose? Absolutely.'' So again, as the Democratic leader stated, Senators are free to vote against the nominee on the basis of whatever they choose, but let us have a vote. Now, as Chairman of the Judiciary Committee, I worked hard for the ultimate confirmation of Judge Paez and Judge Berzon. Nevertheless, there were some significant difficulties with their nominations which took time to resolve. I agree that they took too much time. However, these nominees did receive a vote, they were confirmed, and they now sit on the Ninth Circuit. These two nominees were not filibustered as Mr. Estrada is now being filibustered. It is true that cloture motions were filed on the nominations. Let me emphasize that it was the Republican Leader who filed a cloture petition, so there would be limited debate and a vote up or down. Furthermore, those cloture motions passed by wide margins, 86-13 in the case of Judge Berzon, and 85-14 in the case of Judge Paez. The record is clear that a true filibuster did not occur with regard to these nominations. Following the cloture votes, the Majority Leader, Senator Lott, made the following comments: ``As you know, cloture was just invoked on two Ninth Circuit judges. I still hope we have not set a precedent. I don't believe we have because it was such an overwhelming vote to invoke cloture and stop the filibuster. We should not be having filibusters on judicial nominations and having to move to cloture. But we had to, and it was an overwhelming vote.'' Senator Leahy's response to the Majority Leader's statement is noteworthy. He said: ``I was struck by the comments of the distinguished leader in saying we should not have the precedents of filibusters and requiring cloture. I commend him for supporting the cloture motion and moving this forward so we would not have that precedent.'' As I have said, the confirmations of Judge Paez and Judge Berzon were not without delay. There was considerable opposition to their nominations. But that delay did not amount to anything sort of a filibuster of these nominees. The debate on both Judge Paez and Judge Berszon took place on March 7, 8 and 9 under time agreements. The final day of debate, when they were confirmed, was 4\1/2\ hours total. The Republican leadership did file cloture to get time agreements and to ensure a final vote on these two nominees of President Clinton. I have asked for similar treatment for Miguel Estrada--a time agreement and an up or down vote but this has been denied repeatedly. So the record is clear that this was not a true filibuster. There was limited debate with time agreements. Cloture was filed as a floor management tool and was overwhelmingly approved. The nominees did receive an up or down vote both were confirmed. Let's give Miguel Estrada that same courtesy. Now with regard to the nominations of Judge Paez and Judge Berzon, I do not want to rehash the debate on these nominees, but I do want to put their confirmation into some perspective, since my Democratic colleagues keep bringing them up. Judge Paez's opponents were very concerned about statements he made in 1995, while a sitting federal district judge, regarding two California ballot initiatives--Proposition 187 to limit public assistance to illegal immigrants, and Proposition 209 to end racial and gender preferences in California. Legitimate questions were raised concerning whether his comments were consistent with the Judicial Canon governing judges' extra-judicial activities. There was genuine concern about these remarks on matters that would likely be the subject of litigation. Many of my colleagues viewed this as evidence of his inability to render fair decisions on these issues. A second area of concern regarding Judge Paez involved what some saw as his activist views of the judiciary. Judge Paez had stated, ``I appreciate the need for courts to act when they must when the issue has been generated as a result of the failure of the political process to resolve a certain political question. There is no choice but for the courts to resolve a question that perhaps ideally and preferably should be resolved through the legislative process.'' Now, this statement did raise concerns that Judge Paez would use his position to legislate from the bench. A third issue regarding Judge Paez was his rulings in certain cases. In particular, there was legitimate concern over the judge's role in two cases related to illegal fundraising during the 1996 presidential campaign--those of John Huang and Maria Hsia. You may recall Ms. Hsia was associated with fundraising and money laundering through Buddhist nuns, while Mr. Huang was associated with illegal campaign fundraising, mostly from foreign sources. Judge Paez was assigned to both of these cases. In the case of John Huang, Judge Paez accepted a very lenient plea agreement. Mr. Huang pled guilty to a felony charge of conspiracy to violate Federal election law and was sentenced to no jail time. He was ordered to pay a $10,000 fine and was required to serve 500 hours of community service. Many of my colleagues found it suspicious that Judge Paez would be assigned to both of these cases. There was criticism about the handling of these cases. At a minimum, there was concern about the propriety of his involvement in these cases, which pointed back to the Clinton-Gore campaign. Despite all the concerns regarding the involvement of Judge Paez in these cases, my own view was there was no reasonable basis to further delay the vote on Judge Paez. I was vigorous in my call for an independent prosecutor to investigate all alleged illegalities in the 1996 campaign. However, I also did not believe Judge Paez was implicated and I pressed forward with his nomination. I am asking the same treatment for Miguel Estrada--give him a vote. There were also questions over Judge Paez's ruling on a Los Angeles city ordinance prohibiting aggressive panhandling at specified public places and passed in response to the death of a young man who refused to give a panhandler 25 cents. Judge Paez found the ordinance unconstitutional under the California constitution because the law constituted ``content-based discrimination.'' The Supreme Court of California, asked by the Ninth Circuit Court of Appeals to rule on the holding, held that the Los Angeles ordinance was constitutional and valid. Another troubling case was a decision issued by Judge Paez in 1997, John Doe I v. Unocal, in which he ruled that American companies can be held liable for human rights abuses committed by foreign governments or overseas companies owned by the foreign governments with which they do business. These cases, and others, persuaded many of my colleagues that Judge Paez was well out of the mainstream. With regard to Judge Berzon, I voted for her confirmation, finding her to have the intellect, integrity, and impartiality to serve as a Federal judge. Those opposed to Judge Berzon pointed out that her entire legal experience was in one narrow field--labor law. Her opponents also pointed out that she had been very vocal in the expression of her political views, with membership and leadership in several organizations that many considered activist. The fact remains that, regardless of the opposition and careful scrutiny of these nominees, both Judge Berzon and Judge Paez each were given an up or down vote. In the case of Judge Paez, he was confirmed by a vote of 59-39. Judge Berzon was confirmed by a vote of 64-34. Miguel Estrada deserves the same courtesy. If Senators are opposed, let them vote no. But to refuse a vote is unfair to the nominee, harmful to the Senate, and destructive to the notion of an independent judiciary.

Mr. HATCH. Mr. President, as you all know, we are going to vote on the Estrada nomination one more time with regard to cloture. The fact of the matter is, I am very concerned about this because I think the Senate is placing itself into a serious procedural set of problems that literally could come back to haunt the Senate for many years to come. You see, this is the first filibuster in history of a circuit court of appeals nomination. It is a shame that there has to be a filibuster against one of the leading Hispanic legal thinkers in America--especially since I don't believe there has been a glove laid on Miguel Estrada from the beginning of this debate right up until today. Everybody knows this man is highly qualified, having received the highest rating from the American Bar Association of unanimously well- qualified. Very few judgeship nominees receive that type of unanimously well-qualified rating from the American Bar Association. Miguel Estrada has lived an American dream life. He came here from Honduras at age 17. He hardly understood English, and taught himself English. He graduated from high school and went on to Columbia University where he graduated magna cum laude. He then went on to Harvard Law School and graduated magna cum laude. He was editor of the Law Review at Harvard. Miguel Estrada became a law clerk to Judge Amalya Kearse on the Second Circuit Court of Appeals, one of the most coveted spots for young law graduates who are of exceptional ability, and then he became a law clerk for Justice Anthony Kennedy on the U.S. Supreme Court. Certainly, one of the most coveted jobs any young law graduate can have is to clerk for a Justice on the U.S. Supreme Court. Miguel Estrada became a prosecutor in the Manhattan office and tried appeals there for the prosecutor's office. He went on to become a member of the Solicitor General's Office as Assistant Solicitor General. He worked there for 5 years--4 years for the Clinton administration, 1 year for the Bush administration--where, according to performance reviews, he was given the highest ratings one could possibly receive from his superiors and where he argued cases before the Supreme Court. This man has argued 15 cases before the U.S. Supreme Court, winning 10 of them. Most attorneys never have an opportunity to argue before the Supreme Court, let alone have the experience Miguel Estrada had. He went through one of the most detailed hearings on record before the Senate Judiciary Committee last September, conducted by the distinguished Senator from New York, Mr. Schumer. My friends on the other side have said this hearing was conducted fairly; it was a decent hearing. They had every opportunity to ask any questions they wanted. If they wanted to go longer, they could have gone longer. They did not. Afterwards everyone had the opportunity to file written questions. Only two Democrats filed written questions: Senator Kennedy of Massachusetts and Senator Durbin of Illinois. Now we find ourselves, because the Republicans have taken control of the Senate, with a nominee before the Senate who probably would never have gotten here had it been left up to my colleagues on the other side and whose nomination now hangs in the balance because of a first-time filibuster in history against a circuit court of appeals nominee. In fact, we have only had one successful filibuster in the history of this country against a judicial nominee, and that was Abe Fortas back in 1968 when it was a bipartisan filibuster; both Republicans and Democrats filibustered Fortas. I did not agree with that filibuster then. I do not think it was right then, and I certainly do not agree with the filibuster now. I think it is very dangerous. More importantly, if we continue to filibuster this nominee, it will show once and for all that the Senate is broken with regard to Executive Calendar nominees and, in particular, judicial nominees. If we are going to filibuster nominees we do not care for on either side of this august room, if the Democrats received a Democrat President and we filibuster his nominee because our nominee has been filibustered, then I think this system will be totally broken, will break down, and be very hard to repair. I hope my colleagues on the other side will think through what they are doing. I hope there are a number of clear-thinking people on the other side who will realize that this is a dangerous procedure to do. It flies in the face of the Constitution because the President has the nomination power, and he has the appointment power, and we have the advise and consent power. But advise and consent means an up-or-down vote. It means once a person comes to the floor, there comes a time when debate has to end and there should be an up-or-down vote. In this case, that vote has been prohibited by our colleagues on the other side through this mechanism of a filibuster for the first time in history. I believe what they are doing is blatantly unconstitutional because by requiring 60 votes to have an Executive Calendar nominee pass through the Senate, we are diminishing the executive branch of Government and the judicial branch of Government vis-a-vis the legislative branch of Government. All three are supposed to be coequal branches of Government. This practice is dangerous. In my view, it is unconstitutional. We have to face this one way or the other, and all because my colleagues on the other side claim they do not know enough about Miguel Estrada, after all of these experiences, all of this knowledge we have about him, after one of the longest hearings on record in the history of circuit court of appeals nominations. In addition they are hiding behind a red herring, a false demand to go on a fishing expedition through all of the appeals certiorari and amicus curiae recommendations that Miguel Estrada worked on while at the Solicitor General's Office for 5 years. That has never been allowed before, it should never be allowed, and, frankly, I do not believe any self-respecting administration will ever allow that type of a fishing expedition into the most confidential, privileged papers in the Justice Department itself. Seven former living Solicitors General, four of whom are Democrats, three of whom worked with Miguel Estrada as Democrat Solicitors General in the Clinton administration, have said it is highly inadvisable to allow this type of a demand by the Democrats to be approved by anybody because it would certainly damage the information on which so many of our Solicitors General have come to rely. Yet this day people are saying they just do not know enough about this man. There has hardly been a nominee to any circuit court of appeals in this country in history who is more well known than Miguel Estrada. The problem really comes down to this: He is conservative, and I think my colleagues on the other side believe he is pro-life. I personally do not know what he is with regard to the abortion issue, but I can tell you this, Mr. President: I do believe he is basically a good, strong conservative but a conservative who worked in the Clinton Justice Department for 4 solid years with the highest recommendations of his supervisors while he was at the Clinton Justice Department in the Solicitor General's Office. So this phony red herring issue is exactly that. If we continue to filibuster this man, I believe we will have a Senate that is broken, a system that is broken, and we are going to have to do whatever we have to do to see that Executive Calendar nominees get up-or-down votes when they come before the Senate. Presidents of the United States deserve that consideration and they should have it. If one reads the advise and consent clause in article II of the Constitution, just a few lines above it, it was made clear that you can have supermajority votes, and I think there are seven mentioned in the Constitution. But just a few lines above the advise and consent clause is a requisite two-thirds vote for ratification of treaties. If the Founding Fathers wanted to allow or require supermajority votes with regard to the advise and consent clause, they would have said so. They did not. The natural conclusion from any constitutional scholar would be that we are entitled to an up-or-down vote as the exemplification of the advise and consent clause. The fact is, that is not being allowed because of a filibuster on the other side with the phoniest of excuses that they do not know enough about this very well-known young Hispanic man of high quality, high ability, with the highest recommendation possible, not only from the American Bar Association but from Democrat attorneys as well, such as Seth Waxman, for whom I have great affection and respect, a former Solicitor General of the United States. I hope our colleagues will think it through and we vote for cloture so we can have an up-or-down vote on Mr. Estrada, and if they do not, we will have to see what happens in the future. With this third cloture vote, we will have reached the most cloture votes ever given or ever required in the history of the Senate for an executive calendar nominee. Should cloture not be invoked, we will still go to further cloture votes, as we should. We need to fight for this nominee because he deserves the right to sit on the Circuit Court of Appeals for the District of Columbia. I yield the floor.

Mr. HATCH. Will the Senator yield on that?

Mr. HATCH. Yes. Is the Senator aware that there has never been a cloture vote to prevent somebody from having an up-or-down vote for the circuit court of appeals or the district court in this country, and further, no one has ever been stopped by a cloture vote in this country prior to this other than Abe Fortas? Further, let me ask the Senator this additional question: If the Senator is referring to me as misstating the facts, I was the one who put Paez through. I was the one who put Berzon through. I was the one who put through a whole raft of them who were criticized on our side. I hope the Senator is not referring to me on this matter. Does the Senator know of anyone, other than Abe Fortas, who was stopped by a filibuster who did not, once they got to the floor, have an up-or-down vote?

Mr. HATCH. Will the Senator yield?

Mr. HATCH. I think the Senator has a splendid record with regard to voting for Federal judges, and I personally appreciate that. Is the Senator aware that no true filibuster has ever succeeded against any Federal court nominee, other than Abe Fortas, in the history--

Mr. HATCH

Mr. HATCH. Mr. President, we have all been devastated by the repeated news flashes of violent crimes being committed against children across the Nation. In June 2002, Elizabeth Smart, a 14 year old from my home State of Utah was kidnapped at gun point from her home in Salt Lake City. Just this past week, the entire Nation rejoiced with the Smart family after Elizabeth was found alive and reunited with her loved ones. Five year old Samantha Runnion was not so lucky. Just one month after Elizabeth Smart's abduction, Samantha was kidnapped while playing with a neighborhood friend down the street from her home in Stanton, CA. The following day, her body was found along a highway, nearly 50 miles from her home. California authorities have charged Alejandro Avila with Runnion's abduction, sexual assault and murder. Reportedly, Avila was acquitted two years ago of molesting two young girls under the age of 14. Elizabeth Smart and Samantha Runnion are just two, among many, recent child victims. The list of tragic cases involving minor victims goes on and on. These horrific incidents illustrate the need for comprehensive legislation--at both the State and national level--to protect our children. We need to ensure that federal and state law enforcement officers have all the tools and resources they need to find, prosecute, and punish those who commit crimes against our youth. Today, I rise to reintroduce the ``Comprehensive Child Protection Act of 2003'' which enhances existing laws, investigative tools, criminal penalties and child crime resources in a variety of ways. I introduced this important bill with Senator Feinstein last year, but it failed to go anywhere. My unwavering commitment to this issue compels me to introduce it again this year. Let me elaborate on the Act's specific provisions. By broadening existing laws, the Act enhances the ability of child victims to pursue and prevail in criminal proceedings against their predators. First, the Act extends the statute of limitations period that applies to offenses involving the sexual or physical abuse of children under 18 years of age. Current law permits such cases to be brought until the victim reaches the age of 25 years. This amendment will allow meritorious cases of child sexual and physical abuse to be brought up until the date the minor reaches the age of 35 years. It is well-documented that child abuse victims often do not come forward until years after the abuse occurred. Victims fail to come forward because they fear their disclosures will lead to further humiliation, shame, and even ostracism. Abusers should not benefit from the lasting psychological harms they have inflicted on innocent children. I believe that there should rarely, if ever, be a time when we say to a victim who has suffered as a child at the hands of an abuser: you have identified your abuser; you have proven the crime; yet the abuser will remain free because you, the victim, waited to long to come forward. Our criminal justice system should be ready to adjudicate all meritorious claims of child abuse. This amendment is meant to recognize that the arm of the law should be long in the prosecution of crimes of this heinous nature. Second, the Act amends an existing Federal evidentiary rule, Federal Rule of Evidence 414, to permit the admission into evidence of prior offenses involving child molestation, or the possession of sexually explicit materials containing actual or apparent minors. The current evidentiary rule permits such evidence to be admitted only where the victim was under 14 years of age. This amendment extends the rule to apply to any minor--any victim who was under 18 years of age at the time the offense was committed. In addition, the amendment makes clear that even where an individual possesses what may be virtual, as opposed to actual, child pornography, and therefore, may have a valid defense against prosecution in light of the Supreme Court's recent decision in Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002), such evidence is nonetheless admissible under Rule 414. Like the possession of actual child pornography, the possession of virtual child pornography is highly probative evidence that should be admissible in a case involving child molestation or exploitation. Third, the Act also limits the scope of the common law marital privileges by making them inapplicable in a criminal child abuse case in which the abuser or his or her spouse invokes a privilege to avoid testifying. Where a child abuser is charged with a crime against the child of either spouse, or a child under the custody or control of either spouse, neither the abuser nor his or her spouse should be permitted a marital privilege to avoid providing critical evidence. The marital privileges exist because we in society believe that forcing a person to testify against his or her spouse, or permitting a spouse to testify about confidential marital communications, may jeopardize a marriage. While we value trusting, harmonious marriages, our societal interest in the proper administration of justice far exceeds our interest in preserving marital harmony where a spouse has chosen a vulnerable, defenseless child in the home as his or her victim. In my view, it is more important to prosecute and punish child abusers than it is to minimize the potential risk to the life of a marriage in which child abuse is occurring. The Act increases the investigative tools available to law enforcement agencies in several significant ways. First, the Act amends the DNA Analysis and Backlog Elimination Act by increasing the categories of offenses that are included in the database of convicted offender DNA profiles, the Combined DNA Index System, CODIS. Without question, DNA--which is unique to each individual and maintains its evidentiary integrity for long periods of time--is a valuable investigatory tool. Time and again DNA evidence has aided in solving difficult criminal cases by linking suspects to crimes and by eliminating others. This Act expands the class of offenses that are included in CODIS by adding all federal felony offenses to the database. Currently, the DNA Analysis and Backlog Elimination Act includes only select Federal offenses. The successful experiences of approximately 19 States, including Utah, which currently authorize the collection of DNA samples for all felony offenses illustrate the need for this extension. These States have solved numerous crimes where DNA has been found--frequently based on an offender's conviction for a nonviolent offense--such as burglary, theft or a narcotics offense. Remarkably, not all States currently authorize the collection of DNA samples from all types of child offenders. Thus, the Act also expands the definition of qualifying offense to include all state offenses against children, such as those involving child kidnapping or abuse. This expansion will increase law enforcement's ability to solve such crimes where DNA evidence is found. Second, the Act extends the Federal wiretap statute by adding sex trafficking, sexual abuse, exploitation, and other sex-related offenses as predicate offenses to the statute. As we all know, the Internet is becoming an increasingly popular means by which sexual predators make contact with child victims. Although predators typically initiate a relationship online, they ultimately seek to make personal contact with the child--both over the telephone and through face to face meetings. But as the law exists today, investigators are restricted in their ability to investigate such predators. This provision will enable investigators, who meet the statutory requirements of the Federal wiretap statute, to obtain court authorization to monitor such communications. This amendment will not only aid investigators in obtaining evidence of these crimes, it will also help stop these crimes before a sexual predator makes contact with a child. To obtain a wiretap, law enforcement authorities will still need to meet the strict statutory guidelines of the wiretap statute and obtain authorization from a court. Thus, the legislation will not undermine the legitimate expectations of privacy of law-abiding Americans. This expanded tool will be particularly useful to investigators who track sexual predators and child pornographers. The Act also strengthens criminal penalties by extending the supervised release period that applies to certain offenders, increasing the maximum penalties that apply to offenses involving transportation for illegal sexual activity, and directing the United States Sentencing Commission to review the guidelines that apply to criminal offenses with which child predators are frequently charged to determine whether they are sufficiently severe. The Act grants Federal judges the discretion to impose up to lifetime periods of supervised release for individuals who are convicted of sexual abuse, sexual exploitation, transportation for illegal sexual activity, or sex trafficking offenses. Under current Federal law, a judge can impose no more than 5 years of supervised release for a serious felony, and no more than 3 years for a lesser categorized offense. This amendment to the general supervised release statute will not require judges to impose a period of supervised release longer than 5 years; it will simply authorize them to do so where a judge sees fit based on the nature and circumstances of the case. In my view, if there is any class of offenders on which our criminal justice system should keep a close eye, it is sexual predators. It is well documented that sex offenders are more likely than other violent criminals to commit future crimes. And if there is any class of victims we should seek to protect from repeat offenders, it is those who have been sexually assaulted. They suffer tremendous physical, emotional and psychological injuries. By ensuring that egregious sexual offenders are supervised for longer periods of time, we will increase the chance that they will be deterred from and punished for future criminal acts. The Act increases the maximum penalties that apply to certain offenses, including sexual offenses that involve the trafficking of children and transportation. Stiffer penalties are needed to punish and deter individuals who commit such offenses. The Act also directs the United States Sentencing Commission to review the sentencing guidelines that apply to various offenses that apply to kidnappers, sexual abusers and exploiters, to ensure that Federal sentences are sufficiently severe where aggravating circumstances exist, such as where the victim was abducted, injured, killed, or abused by more than one person. In a number of significant ways, the Act enhances the resources that are available to investigate and prosecute crimes against children. First, the Act directs the Attorney General to appoint a Deputy Assistant Attorney General to oversee a new section at the Department of Justice designated to focus solely on crimes against children. Among other things, the new section will be tasked with prosecuting crimes against children, providing guidance and assistance to Federal, State, and local law enforcement agencies and personnel who handle such cases, coordinating efforts with international law enforcement agencies to combat crimes against children, and acting as a liaison with the legislative and judicial branches of government to ensure that adequate attention and resources are focused on protecting our children from predators of all types. In addition, the Act tasks the new Crimes Against Children section to create an Internet site that consolidates sex offender information which States currently disclose under the Federal reporting act. The Act also direct States that have not developed Internet sites to do so. The creation of a national Internet site will enable concerned citizens to find in one, easily accessible place, critical information about sexual predators. Currently, all 50 States have registration statutes that require sex offenders to register and to share information with the United States Attorney General through the Federal Bureau of Investigation, and over 30 States make offender information available to the public on the Internet. A national Internet site will enhance the public's ability to find and access information that is already available in the public record, and will protect citizens in States where sex offenders move to try to avoid detection of their past criminal acts. In short, the national Internet site will provide parents and other concerned citizens with essential information about the whereabouts and backgrounds of child abusers, so they can take all necessary steps to protect our Nation's children from harm's way. The Act also increases resources and funding for the Federal Bureau of Investigation. The recent series of tragic events involving child victims has convinced me that we need to take a more proactive approach to prevent, deter and prosecute child predators of all types--abusers, molesters, pornographers and traffickers. And at the same time, we need to provide our children, the vulnerable victims of such predators, with the support systems they need to recover fully from such horrendous crimes and to assist law enforcement in effectively investigating and prosecuting these crimes. To this end, the Act directs the FBI to establish a National Crimes Against Children Response Center whose primary mission will be to develop a comprehensive and rapid response plan to reported crimes involving the victimization of children. While the National Response Center is to be established by the FBI, in consultation with the Deputy Assistant Attorney General for the Crimes Against Children Office, it will integrate the resources and expertise of other Federal, State, and local law enforcement agencies, as well as other child serving professionals. By creating and training rapid response teams comprised of federal, state and local prosecutors, investigators, victim witness specialists, mental health and other child serving professionals, the Center will greatly enhance our national response and prevention efforts. The combination of valuable expertise and resources provided by such multi-jurisdictional and multi-disciplinary partnerships will increase the likelihood that law enforcement authorities will successfully identify, prosecute and punish child predators, and that child serving professionals will provide child victims with much needed support. The ``Comprehensive Child Protection Act of 2003'' will enhance our ability to combat crimes against children, but it is by no means an end. Congress needs to continue to explore additional ways in which we can improve our ability on a national level to protect our children. Our children fall victim to many of the same crimes we face as adults, and they are also subject to crimes that are specific to childhood, like child abuse and neglect. The effects of such heinous crimes are devastating and often lead to an intergenerational cycle of violence and abuse. I want to do all I can to ensure that we devote the same intensity of purpose to crimes committed against children, as we do to other serious criminal offenses, such as those involving terrorism. We have no greater resource than our children. I invite the Department of Justice, the Federal Bureau of Investigation and other non governmental entities and professionals who are charged with protecting our children to work with me to improve our Federal laws and to assist States in doing the same.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a bill to help highlight and protect sites in one of our Nation's most archaeologically rich regions, the Four Corners. The Trail of the Ancients National Historic Trail Act of 2003 would amend the National Trails System Act to direct a study of the suitability of designating the Trail of the Ancients as a national historic trail. The Trail of the Ancients National Historic Trail would become a multistate, auto route featuring world-renowned examples of Ancestral Puebloan cultures in the Four Corners area. The Ancestral Puebloans, also known as Anasazi, preceded today's Navajo and Ute tribes. The Trail of the Ancients connects many of the most significant Ancestral Puebloan sites in the Four Corners area of Utah, Colorado, Arizona, and New Mexico. The Four Corners region in the Southwestern United States is one of the areas of greatest archaeological interest in the Nation. The Trail of the Ancients National Historic Trail would provide improved access to and understanding of this region's numerous examples of the Ancestral Puebloan culture. The history of the Four Corners region is not only unique and important to the Nation, it is unparalleled in how well it is preserved in the remaining archaeological sites. The semi- arid climate of the Four Corners area has helped preserve some the archaeological sites beyond what is typically seen in most other areas of the United States. International recognition of a number of the sites in the area has contributed to the wealth of information about the peoples who lived in them. The Trail would highlight areas and sites where our Nation's earliest inhabitants, the Paleo Americans, traveled and lived as early as 10,000 B.C. Within the same region lived the Ancestral Puebloan Indians from about A.D. 1 to 1300. The Trail would also feature sites that chronicle the existence of today's Ute Indian culture from the early 13th century, as well as today's Navajo people. I point out that the Trail of the Ancients National Historic Trail would include only existing routes and roads, and would not require the acquisition of additional property. Currently, much of the existing route is officially designated a Scenic Byway in Utah, Colorado, and Arizona. The trail also intersects and shares stops with other national- and State-designated byways and highways including the San Juan Skyway in Colorado and the Utah Bicentennial Highway. Most of the existing cultural and historical interpretation of the numerous sites along the trail was developed independently. Designation of the Trail of the Ancients National Historic Trail would link many of the cultural and recreation areas for the benefit of the traveling public and involved communities. Just as importantly, designation as a national historic trail would provide a unified framework for protecting and interpreting for the public the trail's most important sites. That is why I am introducing this legislation today. This bill would authorize the study of the Trail of the Ancients for possible inclusion in the National Trails System and allow for its precious and irreplaceable sites to be best protected, as well as enjoyed by the public. I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support this legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a bill to help highlight and protect sites in one of our Nation's most archaeologically rich regions, the Four Corners. The Trail of the Ancients National Historic Trail Act of 2003 would amend the National Trails System Act to direct a study of the suitability of designating the Trail of the Ancients as a national historic trail. The Trail of the Ancients National Historic Trail would become a multistate, auto route featuring world-renowned examples of Ancestral Puebloan cultures in the Four Corners area. The Ancestral Puebloans, also known as Anasazi, preceded today's Navajo and Ute tribes. The Trail of the Ancients connects many of the most significant Ancestral Puebloan sites in the Four Corners area of Utah, Colorado, Arizona, and New Mexico. The Four Corners region in the Southwestern United States is one of the areas of greatest archaeological interest in the Nation. The Trail of the Ancients National Historic Trail would provide improved access to and understanding of this region's numerous examples of the Ancestral Puebloan culture. The history of the Four Corners region is not only unique and important to the Nation, it is unparalleled in how well it is preserved in the remaining archaeological sites. The semi- arid climate of the Four Corners area has helped preserve some the archaeological sites beyond what is typically seen in most other areas of the United States. International recognition of a number of the sites in the area has contributed to the wealth of information about the peoples who lived in them. The Trail would highlight areas and sites where our Nation's earliest inhabitants, the Paleo Americans, traveled and lived as early as 10,000 B.C. Within the same region lived the Ancestral Puebloan Indians from about A.D. 1 to 1300. The Trail would also feature sites that chronicle the existence of today's Ute Indian culture from the early 13th century, as well as today's Navajo people. I point out that the Trail of the Ancients National Historic Trail would include only existing routes and roads, and would not require the acquisition of additional property. Currently, much of the existing route is officially designated a Scenic Byway in Utah, Colorado, and Arizona. The trail also intersects and shares stops with other national- and State-designated byways and highways including the San Juan Skyway in Colorado and the Utah Bicentennial Highway. Most of the existing cultural and historical interpretation of the numerous sites along the trail was developed independently. Designation of the Trail of the Ancients National Historic Trail would link many of the cultural and recreation areas for the benefit of the traveling public and involved communities. Just as importantly, designation as a national historic trail would provide a unified framework for protecting and interpreting for the public the trail's most important sites. That is why I am introducing this legislation today. This bill would authorize the study of the Trail of the Ancients for possible inclusion in the National Trails System and allow for its precious and irreplaceable sites to be best protected, as well as enjoyed by the public. I thank the Senate for the opportunity to address this issue today, and I urge my colleagues to support this legislation.

Mr. HATCH

Mr. HATCH. Madam President, I ask for the yeas and nays.

Mr. HATCH. Madam President, I am pleased the Senate has confirmed Thomas Varlan for the United States District Court for the Eastern District of Tennessee. Mr. Varlan's distinguished record of service in both the private and public sectors makes him a great addition to the Federal bench. Mr. Varlan graduated Order of the Coif from Vanderbilt University School of Law, where he served as managing editor for the Vanderbilt Law Review. In his 11 years in private practice, Mr. Varlan has focused on governmental relations, civil litigation, labor and employment law, and representation of quasi-governmental corporations and schools. Mr. Varlan's impressive accomplishments include serving as law director for the city of Knoxville for a decade. In that capacity, he headed a department of 25 employees who represented the city in a variety of cases and provided legal advice to city officials. Mr. Varlan's wealth of experience has made him an excellent nominee who is well prepared to handle the rigors of the Federal bench. Clearly, Mr. Varlan is the right choice to be a judge in the Eastern District of Tennessee. I am pleased my colleagues joined me in voting to confirm him.

Mr. HATCH

Mr. HATCH. Madam President, I rise today to applaud this body for passing S. 3, the Partial-Birth Abortion Ban Act of 2003. I know the people of my home State of Utah share my sentiments because they recognize, as I do, that the practice of partial-birth abortion is immoral, offensive and impossible to justify. This procedure is so heinous that even many that consider themselves pro-choice cannot defend it. While we have passed a similar measure before, it was never certain to be signed into law. Today it is. It saddens me that this legislation was even necessary, and even more that it took 7 years to achieve. I thank the Senator from Pennsylvania for his outstanding leadership in bringing this about. I hope he knows he has my admiration and respect. Basic human decency has prevailed. I pray that never again will it be legal in this country to perform this barbaric procedure. Unfortunately, I am sure that opponents of this measure will seek to challenge the law in court--where I hope good judgment will ultimately prevail. Even in Stenberg v. Carhart the Supreme Court confirmed, and I quote, ``By no means must physicians [be granted] `unfettered discretion' in their selection of abortion methods.'' There are those who consider every type of abortion sacrosanct and will oppose any effort to apply commonsense reasoning to the debate. I don't know how to get through to these people, except by forcing them to witness this barbaric procedure. A baby is almost fully delivered with only her head remaining inside the birth canal when the doctor stabs scissors into the base of her skull to open a hole through which he then sucks out her brain and collapses her skull. I honestly don't know how anyone can avoid being truly sickened when they see a baby being killed in this gruesome manner. It is not done on a mass of tissue but to a living baby capable of feeling pain and, at the time this procedure is typically performed, capable of living outside of the womb. All this bill would do is ban this one procedure. We are not talking about the entire framework of abortion rights here, but just one procedure. The fact is that there is no medical need to allow this type of procedure. It is never medically necessary, it is never the safest procedure available, and it is morally reprehensible and unconscionable. In recent years, we have heard about teenaged girls giving birth and then dumping their newborns into trash cans. One young woman was criminally charged after giving birth to a child in a bathroom stall during her prom, and then strangling and suffocating her child before leaving the body in the trash. Tragically, there have been several similar incidents around the country in the past few years. This is what happens, when we continue to devalue human life. William Raspberry argued in a column in the Washington Post several years ago that ``only a short distance [exists] between what [these teenagers] have been sentenced for doing and what doctors get paid to do.'' How right he is. When you think about it, it's incredible that there is a mere 3 inches separating a partial-birth abortion from murder. Partial-birth abortion simply has no place in our society and rightly should be banned. President Bush has described partial-birth abortion as ``an abhorrent procedure that offends human dignity.'' I wholeheartedly agree.

Mr. HATCH

Mr. HATCH. Mr. President, this is the fifth week of debate on Mr. Estrada's nomination. My Democratic colleagues have had unlimited opportunities to make their case. Some of them oppose him; others support him. But one thing has remained clear through this debate: There is no good reason to continue this route of obstruction by denying Mr. Estrada an up or down vote. If my count is accurate, we have sought more than 17 times to come to an agreement with the Democratic leadership for a time to vote on Mr. Estrada's nomination. Each time, they rejected our efforts. Yet, the Democratic leadership has complained that the Senate should move on to consider other important matters. All the while, they have continued to fight voting on Mr. Estrada's nomination--the very thing that would allow the Senate to focus its energies on other matters. This filibuster of Mr. Estrada's nomination is just another step in a calculated effort to stall action on President Bush's judicial nominees. A few weeks ago, I spoke at length on the Senate floor about the Senate Democrats' weapons of mass obstruction. I mentioned that when the Democrats controlled the Senate, we saw them bottle up nominees in committee despite more than 100 vacancies in the federal judiciary. They have continued to try to inject ideology into the confirmation process by demanding that nominees like Miguel Estrada answer questions that other nominees rightly declined to answer, but were nevertheless confirmed. They have sought production of all unpublished opinions of nominees who are sitting Federal judges--a demand that has resulted in the production of hundreds of opinions and required the expenditure of a significant amount of resources, money, effort, the time. Most recently, they have demanded that a nominee, Mr. Estrada, produce confidential internal memoranda that are not within his control. Although this tactic made its debut with Mr. Estrada, I expect that we will see it repeated with other nominees. Each of these weapons of obstruction were at their most potent when Democrats controlled the Judiciary Committee. Now things have changed, and Democrats can no longer keep nominees like Miguel Estrada bottled up in committee while they made demands for answers to questions that are unanswerable, and for confidential documents that are not subject to production. Democrats no longer control the committee, and as a result Miguel Estrada nomination has made it to the Senate floor. This means that the obstructionists among the Senate Democrats have turned to their ultimate weapon--the filibuster. Filibusters of judicial nominees allow a vocal minority to prevent the majority of Senators from voting on the confirmation of a Federal judge--a prospective member of our third, coequal branch of Government. It is tyranny of the minority, and it is unfair to the nominee, to the judiciary, and to the majority of the Members of this body who stand prepared to fulfill their constitutional responsibility by voting on Mr. Estrada's nomination. I have taken to the floor time and time again, for Democratic and Republican nominees alike, to urge my fellow Senators to end debate by voting to invoke cloture, which requires the vote of 60 Senators. Most, if not all, of these occasions did not represent true filibusters, but were situations in which nominees were nevertheless forced to overcome the procedural obstacle of a cloture vote. And no lower court nominee has ever been defeated through use of a filibuster--all previous lower court nominees who endured a cloture vote were ultimately confirmed. I am not alone in my disdain for forcing judicial nominees through a cloture vote. I think that it is appropriate at this point to note that many of my Democratic colleagues argued strenuously on the floor of the Senate for an up-or-down vote for President Clinton's judicial nominees. The distinguished minority leader himself once said: As Chief Justice Rehnquist has recognized: ``The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down.'' An up or down vote, that is all we ask . . . . The ranking member of the Judiciary Committee echoed these sentiments when he said: . . . I, too, do not want to see the Senate go down a path where a minority of the Senate is determining a judge's fate on votes of 41. Another one of my Democratic colleagues, Senator Kennedy, himself a former chairman of the Judiciary Committee, had this to say: Nominees deserve a vote. If our Republican colleagues do not like them, vote against them. But do not just sit on them--that is obstruction of justice. The distinguished Senator from California, Mrs. Feinstein, who also serves on the Judiciary Committee, likewise said in 1999: A nominee is entitled to a vote. Vote them up; vote them down. She continued: It is our job to confirm these judges. If we do not like them, we can vote against them. That is the honest thing to do. If there are things in their background, in their abilities that do not pass muster, vote no. My other colleague from California, Senator Boxer, said in 1997: It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor. My colleague from Delaware, Senator Biden, also said in 1997: I . . . respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor. I could go on, but I think I have made my point. I had hoped that I could count on each of my Democratic colleagues who made statements supporting an up-or-down vote for President Clinton's judicial nominees to join me in voting for cloture on Miguel Estrada. I had hoped that their remarks in the past were not merely about partisanship, but about the fairness that should be extended to all judicial nominees, regardless of which President nominated them. Last week, I was wrong. But today, there is a second chance--another chance to set aside partisanship for fairness. For this cloture vote to succeed, a supermajority of 60 Senators must vote to end the filibuster of Mr. Estrada's nomination. I regret that it has come to this, because forcing a supermajority vote on any judicial nominee is a maneuver that needlessly injects even more politics into the already over-politicized confirmation process. I believe that there are certain areas that should be designated as off- limits from political activity. The Senate's role in confirming lifetime-appointed article III judges--and the underlying principle that the Senate perform that role through the majority vote of its members--are such issues. Nothing less depends on the recognition of these principles than the continued, untarnished respect in which we hold our third branch of Government--the one branch of Government intended to be above political influence. So I now say once again to my Democratic friends: Vote for Miguel Estrada or vote against him. Do as their conscience dictates you must. But do not prolong the obstruction of the Senate by denying a vote on his nomination. Do not cast their vote against cloture today. Do not continue to treat the third branch of our Federal Government--the one branch intended to be insulated from political pressures--with such disregard that we filibuster its nominees. Do not perpetuate this campaign of unfairness. Vote for him or vote against him, but just vote. This first filibuster in the history of the Senate on a substantive judgeship for a circuit court of appeals nominee is unprecedented, something that should never happen, that we prevented from happening when I was chairman of the committee during the Clinton administration. My friends on the other side are using a fiction that they know the administration cannot fulfill, and that is demanding a fishing expedition into all of the papers in the Solicitor General's Office pertaining to Mr. Estrada's recommendations on appeals, certiorari, and amicus curiae. They know the administration cannot do that. They knew that when they wrote the letter making that unreasonable demand. This is what we call fiction, a red herring, so they can justify the filibuster they are undergoing and act very pious, that they are really trying to learn more about this man, in spite of the fact that they conducted the hearings. The hearings went all day. The transcript is almost 300 pages. They have all of his Supreme Court briefs. They have all of his Supreme Court arguments. They know more about Mr. Estrada than they know about any circuit court of appeals judgeship nominee we have had over the last 27 years that I have been in the Senate, as far as I know. There might be one or two they might know as much about as they do Mr. Estrada, but this is a fiction. It is a red herring. We have a letter from seven former Solicitors General, all living former Solicitors General, from Archibald Cox to Seth Waxman, four of the seven Democrat Solicitors General, three of who worked with Miguel Estrada in the Solicitor General's Office, because he worked, I might add, 4 years for the Clinton administration and 1 year for the Bush administration. Those former Solicitors General say these types of documents should never be given, because it would chill the ability of the Solicitor General to get honest and decent opinions on very important matters for the people's business, and the people's business does not make any delineation between Democrats and Republicans. The Solicitor General represents all of the people. I will now say a few words about Priscilla Owen before I go back to the hearing. I rise for the purpose of reading a Dear Colleague letter that I have written and distributed today concerning the nomination of Justice Priscilla Owen of Texas to be a judge on the US Court of Appeals for the Fifth Circuit. I have distributed this to every Senator in the Senate. Dear Colleague: On September 4 of last year I took the unusual step of writing to the entire Senate to express my outrage at the untruthful and misleading attacks made against Justice Priscilla Owen of Texas, who was nominated by President Bush to serve on the Fifth Circuit Court of Appeals. As you know, Justice Owen enjoyed the support of both of her home-state Senators last Congress, and again enjoys such support. I am writing today so that you have all information related to this important information. In September, I expressed my concern that a continued pattern of misinformation about a nominee, like the one generated about Justice Owen, could undermine the integrity both of the judiciary and of the branch of government in which we are privileged to serve. A day later, the Judiciary Committee refused to allow Justice Owen a vote by the whole Senate on a party-line vote of 10 to 9. Notably, one week later The Washington Post joined scores of other newspapers across the country in expressing support for Justice Owen and severely criticized the Committee's conduct. I have enclosed its editorial. The Post described the Committee's vote as ``a message to the public that the confirmation process is not a principled exercise but an expression of political power.'' The Post also noted that although they disagreed with some of her opinions, ``none seems beyond the range of reasonable argument.'' Despite the independent support of dozens of newspapers, prominent Democrats, and fourteen past Texas bar presidents, critics have portrayed Justice Owen as being ``far from the mainstream.'' Yet Texas voters have twice elected her overwhelmingly to statewide office. The American Bar Association has unanimously rated her well qualified, its highest rating. In fact, Justice Owen was the first judicial nominee with the ABA's highest rating to be voted down by the Judiciary Committee. In my opinion, Justice Owen is perhaps the best sitting judge I have ever seen nominated. She is brilliant as well as compassionate. Justice Owen's record of applying the law as written is among the very best of any judicial nominee ever presented to the Senate. This is particularly true in her now famous decisions concerning the Texas law requiring parental notification when minor children obtain abortions. In these cases, no one's right to choose was implicated. The only right at stake was the right articulated by the Texas legislature of parents to have knowledge of, and an opportunity for involvement in, one of the most important decisions of their children's lives. In those cases, Justice Owen did exactly what any restrained judge should do: She applied Texas statutory law as directed by Supreme Court's precedent, including Roe v. Wade. Ironically, it is Justice Owen's opponents--the same ones who accuse her of being an ``activist''--who would have her ignore the legislature and the Supreme Court in order to reach a political result. Justice Owen is also accused of deciding cases against consumers, workers, and the injured and sick. This charge is not only factually without basis, but also belies the accusation of ``activism.'' Only those obsessed with outcomes, rather than the law governing the facts of a particular case, would be compelled by a mere counting up of wins and losses among categories of parties before a judge. Working as a judge is like being an umpire; Justice Owen cannot be characterized as pro-this or pro-that any more than an umpire can be analyzed as pro-strike or pro-ball. I hope you will agree that a judge's job is to apply the law to the case at hand, not to mechanistically ensure that court victories go 50/50 for plaintiffs and defendants, consumers and corporations. Justice Owen was also notably assailed by her critics using incorrectly the words of one of her biggest supporters, Alberto Gonzales, President Bush's White House Counsel. Judge Gonzales served with Justice Owen on the Texas Supreme Court and has written publicly that she is ``extraordinarily well qualified to serve as a judge on the federal appeals court.'' Rather than focus on his ringing endorsement, however, detractors instead sensationalized a disagreement that Judge Gonzales had not with Justice Owen, but with other dissenting judges in a case involving the Texas parental notification law. Justice Owen is an excellent judge. Her opinions, whether majority, concurrences, or dissents, could be used as a law school text book illustrating exactly how an appellate judge should think, write, and do the people justice by effecting their will through the laws adopted by their elected legislatures. She clearly approaches these tasks with both scholarship and mainstream American common sense. As a new Congress takes a fresh look at this nomination, I hope you will join me in informing the American people of the truth about Justice Owen and in warning them of the grave danger posed by an uninformed politicization of the federal judiciary. I hope you will urge our colleagues to do the right thing when Justice Owen is again voted on by the Committee and goes to the Senate floor for confirmation.-- Signed, Orrin G. Hatch. We are holding a hearing today on Justice Owen's nomination. I invite all of my colleagues to attend. In fact, I encourage them to do so. I want everyone to get to know Justice Owen and have the opportunity to hear from her firsthand. This is a very unusual invitation, I know. But these are unusual times in the Senate for judicial nominations, and Justice Owen is a particularly important and impressive nominee. I urge my colleagues to come to the hearing taking place in Dirksen 106 and see for themselves what an extraordinary person and jurist she is. We are having difficulty with the President's judicial nominees. Every one of these circuit nominees is being contested, some more than others, but all of them are quite rabidly being contested. Miguel Estrada is a perfect illustration of someone who is totally competent, totally equipped to do the job, honest, decent, has earned his stripes, has the highest rating from the American Bar Association, the gold standard, according to our colleagues on the other side. Yet he is being filibustered here now in the fifth or sixth week. We have a cloture vote today. I hope my colleagues will consider this. I hope we can get some of the more clear thinking colleagues on the other side to start voting for Mr. Estrada, to start voting for cloture, so we can end this outrageous debate and put a qualified person on the court. Let's not hide behind a fishing expedition to get documents they know no self-respecting administration is going to give to them, and using that as a basic shield to say they are not doing something unjust to Miguel Estrada. They are being very unjust, very unfair. It is not right. We ought to stop it.

Mr. HATCH

Mr. HATCH. Mr. President, I express my deep-felt feelings about the answer to all of our prayers in Utah. There has never been a State where virtually everybody got on their knees and prayed for the return of this young woman, Elizabeth Smart. I have to tell you, we believe in miracles out there. We have seen them time after time after time. But I have to admit, most people had pretty much given up. They were thinking, well, that poor soul undoubtedly had to have been murdered. But her father and her mother never gave up. They were in my office just a short while ago saying: We are going to find her. We believe she is alive--praying every day, fasting for their daughter. People in Utah fast and pray in these situations. I have to tell you, I was so thrilled last night to see they finally found her. I could hardly get to sleep. I want to pay tribute to that wonderful family and her neighbors. Jake Garn and Kathleen Garn are two of the neighbors. I have to tell you, they both have been of tremendous help and bolsterers, as have all of the neighbors, to the Smart family. Jake has moved heaven and earth for them. He has talked to me, worked with me, worked with others. His wife Kathleen is as good as it gets. She is a wonderful human being. I know she was over there all the time, giving solace, support, comfort. It is typical of these two, who served in the Senate with us for so many years and did such a great job, to continue to do a great job in our home State. That family really deserves a lot of credit. Not only the immediate family but the extended family exercised their faith and prayers on behalf of this young woman. I hope everything is OK with her. It is certainly OK compared to what she has gone through. I hope everybody who knows her and knows that family will lend support and solace and comfort to help them to reunite in every way and help this young woman to overcome the terrible experience she has had over the last 9 months.

Mr. HATCH

Mr. HATCH. The legal bar's wide regard for Professor Bybee is reflected in his evaluation by the American Bar Association. Based on his professional qualifications, integrity, professional competence, and judicial temperament, the ABA has bestowed upon Professor Bybee a rating of Well Qualified. This Senate has previously found Professor Bybee worthy of confirmation for a position of high responsibility in the government, and I am confident it will do so again today. Professor Bybee is providing the Nation with exceptional service in his current position as Assistant Attorney General in charge of the Office of Legal Counsel. This office assists the Attorney General in his function as legal advisor to the President and all the executive branch agencies. The office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the executive branch, and offices within the department. Such requests typically deal with legal issues of particular complexity and importance or issues about which two or more agencies are in disagreement. The office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality. All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President's formal approval. In addition to serving as, in effect, outside counsel for the other agencies of the executive branch, the Office of Legal Counsel also functions as general counsel for the Department itself. It reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General's approval. It also performs a variety of special assignments referred by the Attorney General or the Deputy Attorney General. In this position, Professor Bybee has performed in an outstanding manner. He has rendered great service to our Nation, he has earned bipartisan respect and support, and is fully prepared to be a Federal circuit court of appeals judge. (Ms. MURKOWSKI assumed the chair.)

Mr. HATCH. Madam President, I am confident that as the Senate confirms Professor Bybee, Democrats and Republicans can all share in the pride of a job well done. This Senate will have properly exercised its proper constitutional role of advice and consent. I urge my colleagues to support this nomination. I yield the floor. Exhibit 1 University of North Carolina School of Law, Chapel Hill, NC, January 27, 2003. Re: Jay Bybee. Hon. Orrin G. Hatch, Chairman, Committee on the Judiciary, U.S. Senate, Russell Senate Office Building, Washington DC. Dear Chairman Hatch: I am writing this on behalf of the nomination of Jay Bybee to the Ninth Circuit Court of Appeals. First let me introduce myself. I am currently the Kenan Professor of Law at the University of North Carolina School of Law and have taught law for almost 20 years. I also worked in the Clinton Administration as the Deputy Counsel to the President under Beth Nolan and previously as an Associate Counsel to the President under Charles Ruff. In addition, I served under Assistant Attorney General Eldie Acheson in the Justice Department during the spring and summer of 1993 during which my task was to begin the processes of judicial selection for Clinton Administration appointments. I am therefore well familiar with the judicial selection process. I have come to know Jay Bybee in my work as a law professor both through his writings and through the interactions we have had at numerous legal conferences and academic events. He is an extremely impressive person. To begin with, he is a remarkable scholar. His ideas are creative, insightful, and stimulating and his analysis is careful and precise. I believe him to be one of the most learned and respected constitutional law experts in the country. He is also an individual with exceptional personal qualities. I have always been struck by the balance that he brings to his legal analysis and the sense of respect and deference that he applies to everybody he encounters-- including those who may disagree with him. He is someone who truly hears and considers opposing positions. Most importantly he is a person who adheres to the highest of ethical standards. I respect his integrity and trust his judgement. Needless to say, I believe that Jay Bybee's professional and personal skills make him an outstanding candidate for a federal judgeship. The combination of his analytic skills along with his personal commitment to fairness and dispassion lead me to conclude that he will serve in the best traditions of the federal judiciary. He understands the rule of law and he will follow it completely. He is an exceptional candidate for the Ninth Circuit and I support his nomination without reservation. I hope these comments are helpful to you. Please feel free to contact me if you have any further questions. Sincerely, William P. Marshall, Kenan Professor of Law.

Mr. HATCH. Mr. President, I thank my two colleagues from Nevada. You very seldom see two colleagues from different parties working so well together. They are both excellent people. We all respect Senator Reid. He is one of the moderate voices around here who tries to get things to work. And I personally appreciate it. And the distinguished junior Senator from Nevada, Mr. Ensign--I have not seen a better Senator in years. He is certainly making a difference on our side. And I believe, working with his colleague on the other side, he is getting a lot of things done for Nevada and for the Intermountain West, and it is terrific. So I pay tribute to both of them. I am pleased we are considering the nomination of Jay S. Bybee who has been nominated by President Bush to serve on the United States Court of Appeals for the Ninth Circuit. Professor Bybee has a sterling resume and a record of distinguished public service. I know him personally. I am a personal friend. I know his quality. I know what a good thinker he is. I know what a great teacher he has been. I know what a great job he has done down at Justice. He is a person everybody ought to support because he is a truly wonderful, upright, good, hard- working, intelligent individual. Professor Bybee is currently on leave from the University of Nevada at Las Vegas William S. Boyd School of Law, where he has served as a professor since the law school's founding in 1999. Since October 2001, he has served as Assistant Attorney General for the Department of Justice Office of Legal Counsel. Notably, this is a post formerly held by two current Supreme Court Justices. As head of the Office of Legal Counsel, Professor Bybee assists the Attorney General in his function as legal advisor to the President and all executive branch agencies. The office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality. Professor Bybee, a California native, attended Brigham Young University, where he earned a bachelor's degree in economics, magna cum laude, and a law degree, cum laude. While in law school, he was a member of the BYU Law Review. Following graduation, Professor Bybee served as a law clerk to Judge Donald Russell of the Fourth Circuit Court of Appeals before joining the firm of Sidley & Austin--one of the great law firms. In 1984, he accepted a position with the Department of Justice, first joining the Office of Legal Policy, and then working with the Appellate Staff of the Civil Division. In that capacity, Professor Bybee prepared briefs and presented oral arguments in the U.S. Courts of Appeals. From 1989 to 1991, Professor Bybee served as Associate Counsel to President George H.W. Bush. Profeesor Bybee is a leading scholar in the areas of constitutional and administrative law. Before he joined the law faculty at UNLV, he established his scholarly credentials at the Paul M. Hebert Law Center at Louisiana State University, where he taught from 1991 to 1998. His colleagues have described Professor Bybee as a first-rate teacher, a careful and balanced scholar, and a hardworking and open-minded individual with the type of broad legal experience the Federal bench needs. Professor Bybee comes highly recommended. One of his supporters is Mr. William Marshall, a professor of law at the University of North Carolina. Mr. Marshall served in a number of high-level posts in the Clinton administration including a stint as Deputy White House Counsel and, notably, as a counsel in the Office of Legal Policy at the Department of Justice, where he participated in the judicial selection process by screening prospective Clinton administrative nominees. In his letter to the committee supporting Professor Bybee, Mr. Marshall said: The combination of his analytic skills along with his personal commitment to fairness and dispassion lead me to conclude that he will serve in the best traditions of the Federal judiciary. He understands the rule of law and he will follow it completely. Stuart Green, a law professor at Louisiana State University who describes himself as a ``liberal Democrat and active member of the ACLU,'' said: I have always found [Jay Bybee] to be an extremely fair- minded and thoughtful person. Indeed, Jay truly has what can best be described as a `judicious' temperament, and I would fully expect him to be a force for reasonableness and conciliation on a court that has been known for its fractiousness. This self-described liberal Democrat states that Professor Bybee will bring some balance to the Ninth Circuit. I remind my colleagues that in this court 14 of the 24 active judges, including 14 of the last 15 confirmed, were appointed by President Clinton. This court was recently in the news with yet another controversial decision. We are all familiar with the Ninth Circuit's recent ruling which held the Pledge of Allegiance to the Flag as unconstitutional under the Establishment Clause because the Pledge contains the phrase ``under God.'' The Ninth Circuit's high reversal rate by the Supreme Court is well documented, but less well known is the Ninth Circuit's propensity for reversing death sentences, with some judges voting to do so almost as a matter of course. No doubt the Ninth Circuit has some of the nation's most intelligent judges, but some cannot seem to follow the law. Just this term, the U.S. Supreme Court summarily reversed the Ninth Circuit three times in one day and vacated an opinion 9-0. With two judicial emergencies in the Ninth Circuit, Professor Bybee is the type of judge we need. He is committed to applying and upholding the law. He will be a terrific judge. That circuit represents over 9 million people, the largest in the country. It has the most judges on a circuit court of appeals in the Nation. They need him. Additional letters in support of Professor Bybee illustrate his professional competence and personal characteristics which will serve him well on the bench. Colleagues at UNLV deserve Professor Bybee as ``widely and properly regarded as a leading constitutional law expert, and his expertise extends to many other areas of law as well. . . . Bybee is highly intelligent, industrious, diligent, and responsible. He has outstanding judgment and is a rock of stability. . . . Perhaps above all, he respects and works effectively with persons of diverse perspectives, temperaments, and ideology.'' Another colleague of Professor Bybee wrote, ``I should note that my personal politics are quite different from Bybee's, but Jay's tremendous intelligence, work ethic and, above all, his integrity and desire to complete each and every task not only to the best of his ability, but also to do the right thing with it, convinces me that I would rather have him be a federal judge than many or most who share more closely my own politics.'' The committee has received similar letters in support of Professor Bybee from law professors and administrators throughout the nation, including the Dean of The George Washington University Law School. I ask unanimous consent that these supporting Professor Bybee's nomination be printed in the Record at the conclusion of my remarks.