Orrin Hatch

Mr. HATCH

Mr. HATCH. Will the Senator yield?

Mr. HATCH. I know the Senator cannot speak for all the Democrats, but if all the Democrats would agree, or if you can get the majority leader to agree and the Democrats to agree to stop the filibuster, I might consider that--not because I don't think he answered the questions the first time; he did, in a very thick transcript--as a gesture. I would have to look at this. I would have to talk to the administration, the people on our side, and Miguel Estrada himself, but if I was assured we would have an up-and-down vote where people could vote whatever way they wanted to, I would give some consideration to that, subject to my talking to our leadership on this side and talking to the White House. But there is no question they cannot give up these documents. He has no authority over those documents and the administration will not give up those documents no matter what we do. But I guess you would at least have an opportunity to ask additional questions, in spite of the fact that the distinguished Senator who conducted the hearing said it was conducted fairly, that he asked every question he wanted to ask, that he had the right to ask any other questions he wanted to, that he could have filed written questions, in addition. But the Senator has said if he could have one more day of hearings, because written questions do not cut it as well as oral testimony, if he could have one more day of hearings, I would consider this, and I would talk to my side and I would talk to Mr. Estrada and the White House if I knew there would be an up-and-down vote, the filibuster would end, this threat to the process would end. I would certainly give every consideration to it and try to do that.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Will the Senator yield?

Mr. HATCH. That is the only name you can come up with?

Mr. HATCH. Mr. President, the majority leader is here to propound a request. Let me make a couple of remarks, and I ask unanimous consent that I be able to retain the floor after he finishes with his request.

Mr. HATCH. As the Senator knows----

Mr. HATCH. I ask the Senator, is it possible the Senator could put together the questions he believes Miguel Estrada has not answered appropriately, and I will do my best to get him to answer them? If not appropriately, as defined by the Senator, but at least in more detail than the Senator seems to be indicating here. I know he answered a lot of questions appropriately, and I believe all of them appropriately, but I would be glad to assist the Senator if he will give me a list of questions the Senator would like to have Miguel Estrada answer. I will do my best to see he answers them for the Senator, and hopefully that will have the Senator feel a little bit better and cause him to vote for him.

Mr. HATCH. As the Senator knows, he cannot give up those documents. He has no control over them. And the administration will not and neither would any other administration. Would the Senator be willing to get the Democrats to agree to an up- and-down vote if we had one more day of hearings where the Senators could ask additional questions? I am not saying we are going to do that, I am just saying would we have an up-and-down vote. We cannot produce those documents because they are privileged. I think the Senator knows that. But if you had one more day of hearings where you could ask the questions, could we get the Democrats to agree to an up-and-down vote if you did that? I cannot say I can do that, but I certainly would look at it.

Mr. HATCH

Mr. HATCH. Madam President, I rise today to introduce the CLEAR ACT, which is short for the Clean Efficient Automobiles Resulting from Advanced Car Technologies Act of 2003. Joining me in this effort are Senators John Rockefeller and Jim Jeffords, who have been my partners in this legislation and its earlier versions since the 106th Congress. We are also being joined by an impressive and bipartisan lineup of original cosponsors, which includes Senators Olympia Snowe, John Kerry, Gordon Smith, Joe Lieberman, John Ensign, Hillary Clinton, Mike Crapo, Byron Dorgan, Susan Collins, and Lincoln Chafee. I believe the CLEAR ACT is the most comprehensive and effective plan we have seen in this country to accelerate the transformation of the automotive marketplace toward the widespread use of fuel cell vehicles. And it does so without any new Federal mandates. Instead, it offers powerful market incentives to promote the combination of advances we must have in technology, in infrastructure, and in alternative fuels if our goal of bringing fuel cell vehicles to the mass market is to become a reality. As many of my colleagues know, fuel cell vehicles are the most promising long-term automotive technology, offering breakthrough fuel economy of up to three times today's levels with zero emissions. For a variety of reasons, the commercial production of fuel cell vehicles is a number of years away. Many things need to change in the automotive marketplace before widespread use of these vehicles of the future becomes a reality. With the CLEAR ACT, we can achieve this goal much faster, while in the meantime we can reap the benefits of cleaner air and a reduced dependency on foreign oil. Bridging the gap between today's conventional vehicles and the day when all of us will be driving fuel cell vehicles are alternative fuel and advanced technology vehicles, such as hybrid electrics. These vehicles are available today, but not yet widely accepted in the marketplace. Currently, consumers face three basic obstacles to accepting the use of these alternative fueled and advanced technology vehicles. These obstacles are the higher cost of these vehicles as compared with their conventional counterparts, the cost of the alternative fuel, and the lack of an adequate infrastructure of alternative fueling stations. Mr. President, the CLEAR ACT would lower all three of these barriers. First, we provide a tax credit of 50 cents per gasoline-gallon equivalent for the purchase of alternative fuel at retail. This would bring the price of these cleaner fuels much closer in line with conventional automotive fuels. And, to give customers better access to alternative fuel, we extend an existing deduction for the capital costs of installing alternative fueling stations. We also provide a 50- percent credit for the installation costs of retail and residential refueling stations. Finally, we offer CLEAR ACT credits to consumers who purchase alternative fuel and advanced technology vehicles. These credits would lower the price gap between these cleaner and more efficient vehicles and conventionally fueled vehicles of the same type. To make certain that the tax benefit we provide translates into a corresponding benefit to the environment, we split the vehicle tax credit into two. The amount the consumer receives in a CLEAR ACT credit would depend, first, on the level of technology used in the vehicle and, second, on the fuel efficiency and emissions reduction of the vehicle. In this way, we are confident that the CLEAR ACT will create the greatest social benefit possible for every tax dollar. The transportation sector in the U.S. accounts for nearly two-thirds of all oil consumption, and we are 97-percent dependent on petroleum for our transportation needs. Is it any wonder that 50 percent of our urban smog is caused by mobile sources? If we want to clean our air and address our Nation's energy dependency, we must focus on the transportation sector. And we must focus first on those technologies and alternative fuels that are already available and abundant domestically. The CLEAR ACT is the shortest path to achieving these goals. Air pollution and energy independence are issues of critical concern in my home State of Utah. According to a study by Utah's Division of Air Quality, on-road vehicles in Utah account for 22 percent of particulate matter. This particulate matter can be harmful to citizens who suffer from chronic respiratory or heart disease, influenza, or asthma. Automobiles also contribute significantly to hydrocarbon and nitrogen oxide emissions in my State. These two pollutants react in sunlight to form ozone, which in turn reduces lung function in humans and hurts our resistance to colds and asthma. In addition, vehicles account for as much as 87 percent of carbon monoxide emissions. Carbon monoxide can be harmful to persons with heart, respiratory, or circulatory ailments. While Utah has made important strides in improving air quality, it is a fact that each year more vehicular miles are driven in our State. It is clear that if we are to have cleaner air, we must encourage the use of alternative fuels and technologies to reduce vehicle emissions. Another key aim of the CLEAR ACT is greater energy independence. Whether during the energy crisis in the 1970s, during the Persian Gulf war, or during our current energy challenge, every American has felt the sting of our dependence on foreign oil. And I might add that our dependency on foreign oil has steadily increased to the point where we now depend on foreign sources for about 60 percent of our oil. When enacted, the CLEAR ACT will play a key role in helping our Nation improve its energy security by increasing the diversity of our fuel options and decreasing our dependency on gasoline. Our Nation's energy strategy will not be complete without an incentive to increase the use of alternative fuels and advanced car technologies. In the future we will not use gasoline-fueled vehicles to the same extent we do today. The technology is here today to help transform us to the benefits of the future much sooner. We just need to find a way to lower those barriers to widespread consumer acceptance, which will in turn put the power of mass production to work to lower the incremental cost of this technology. In short, our legislation would bring the benefits of cleaner air and energy independence to our citizens sooner. I am very proud to offer this groundbreaking and bipartisan legislation. It represents the input and hard work of a very powerful and effective coalition the CLEAR ACT Coalition. This coalition includes the Union of Concerned Scientists, Ford Motor Company, the Natural Resource Defense Council, Toyota, Environmental Defense, Honda, the Alliance to Save Energy, the Natural Gas Vehicle Coalition, the Propane Vehicle Council, the Methanol Institute, and others. The CLEAR ACT reflects the untiring effort and expertise of the members of this coalition, and for this we owe them our gratitude. I urge my colleagues in the Senate to join me, the CLEAR ACT's cosponsors, and this coalition in this forward-looking approach to cleaner air and increased energy independence. I ask unanimous consent that a summary of the CLEAR ACT be inserted in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m., Tuesday, March 4. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then begin a period for morning business for up to 2 hours, with the first 30 minutes under the control of Senator Alexander, the second 30 minutes under the control of Senator Murkowski or her designee, and the final 60 minutes under the control of the Democratic leader or his designee. I further ask unanimous consent that upon the conclusion of morning business, the Senate return to executive session and resume the consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit. I ask unanimous consent that the Senate recess from the hour of 12:30 p.m. to 2:15 p.m. for the weekly party caucuses.

Mr. HATCH. I am happy to yield.

Mr. HATCH

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

Mr. HATCH

Mr. HATCH. Mr. President, for the information of all Senators, following morning business, the Senate will return to the Estrada nomination. Since taking up this nomination almost a month ago, the Senate has thoroughly and vigorously debated Mr. Estrada's qualifications to serve on the DC Circuit Court. Although a solid majority of Senators supports this nomination, several of my colleagues on the other side of the aisle refuse to let this well-qualified man receive an up-or-down vote on confirmation. Those who oppose Mr. Estrada certainly have a right to have their opinions heard, but I think it is more than fair to say that every Senator has had ample opportunity to speak on the nomination. I encourage any Member who still wishes to speak on the nomination to do so during tomorrow's session.

Mr. HATCH

Mr. HATCH. If there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

Mr. HATCH

Mr. HATCH. I object.

Mr. HATCH. Mr. President, I have heard some of the remarks made on the floor today. I thought I would clarify them, clarify the reality of what really happened. I have had a little bit of criticism by my colleagues from the other side of the floor because we actually had the committee vote last week when it should have voted. So I took the liberty of writing a detailed letter to the distinguished Senator from South Dakota, the distinguished minority leader, who is a dear friend. I know he has been concerned that maybe there was some breach of the rules. So I would like to read this letter into the Record so that everybody will understand that there was no breach of the rules last Thursday. Anybody who says there was really doesn't understand the rules, does not understand the obligations of the chairman. I am writing in response to your comments on the Senate floor concerning the Judiciary Committee's executive business meeting this past Thursday. I know you are a person of the highest principles who would never intentionally misrepresent the actions of a Committee Chairman, particularly when the action involves an interpretation of that committee's particular rules. I think you may have been provided with some incorrect information, and I would like you to know the truth. As you know, the Judiciary Committee met at 9:30 a.m. last Thursday to consider several nominations and some legislation. Although the Democrats were cooperative about voting out a few widely-supported District Court nominations and some other nominations, they made it clear that they would attempt to filibuster at least two of the three nominees for the Circuit Courts of Appeal, Deborah Cook John Roberts and Jay Bybee. It is important to note that the nominations of Mr. Roberts and Justice Cook had been filibustered in Committee during our last meeting two weeks ago, and had been on the agenda but held over the week before that. I could have forced a vote two weeks ago, but I declined to do so out of deference to my Democratic colleagues, who had assured me that we would vote on the nominations at the next meeting, meaning last Thursday. From 9:30 a.m. to approximately 12:30 p.m. yesterday, Committee Members engaged in a thorough debate on the three Circuit Court nominations. I allowed every member to talk as long as they wanted. Everyone was allowed to say his or her piece [even though we could have limited debate]. When the speeches ran out at 12:30 or so, I announced it was time for a vote. Senator Kennedy objected. I overruled the objection, and then all of the Democratic Members walked out of the hearing room in order to deny the Committee a quorum. A few minutes later, Senator, Specter returned to the Committee room, making a total of nine Republicans present, and then a couple of the Democrats returned and demanded to continue the filibuster even though every democrat who wanted to speak had already done so. As support for their filibuster, they relied upon Rule 4 of the Judiciary Committee rules. That rule allows any Member to move to have an item on the Agenda voted upon. In this case, the nomination on the Agenda was brought to a vote. As background, you know well that Senate Committee Chairmen have a number of inherent powers that are not expressly stated in Committee rules. For example, the Judiciary Committee Chairman has the power to call and set the agendas for hearings and mark-ups even though those powers are not explicitly granted by Committee Rules. The Chairman also has the inherent power to bring a matter to a vote. The Chairman also has the power to interpret the rules of the Committee, as Senator Leahy has done in the past. The Parliamentarians assured me of this on Wednesday. Rule 4 of the Judiciary Committee Rules is not the authority by which the Chairman calls for a vote. On the contrary, the clear text of Rule 4 gives a majority of the Committee (which must include Members of both parties) a mechanism to force a vote, presumably when the Chairman does not want or call one. In other words, it ensures that the majority will is not thwarted by an obstreperous Chairman who refuses to allow a vote on an item on the Agenda. Rule 4 works like this: When a Member wants to end debate and bring a matter to a vote, he or she is entitle dot make a motion to hold a vote and the Chairman must entertain it. If anyone objects, then the Committee must vote on the motion (the motion is not debatable). The motion carried only if a majority of the Committee, including at least one Member of the minority party, votes in favor. If the motion carries, the Committee proceeds to a vote on the underlying matter. The Democrats who raised Rule 4 at the mark-up [last Thursday] turned Rule 4 on its head. They tried to use it to deny a vote, not to force one. Their argument ignores the purpose of Rule 4, the inherent power of the Chairman to call for a vote, the fact that the debate had already ended, and the common sense idea that legislative bodies must have the power to make decisions--even difficult ones. I do not believe that Committee filibusters should be allowed, and I think it is a good and healthy thing for the Committee to have a rule that forces a vote. I understand your misperception given the fact that you may not--and indeed have no reason to--be fully familiar with the Judiciary Committee's rules, as you do not serve on the Committee. But knowing you as a fair man, I thought my explanation would help clear any misconceptions. It is unfortunate that I was forced to exercise the Chairman's inherent power to force the Committee to act [last Thursday]. I had given every fair consideration to my Democratic colleagues for debating the nominations. The nominees before the Committee were very well qualified, enjoy home-state support (bipartisan, in the case of Bybee), and were ultimately approved by substantial bipartisan majorities of the Committee. I know it makes for popular speechmaking to accuse politicians of abusing process and procedure. And as a former Majority Leader of the body, you appreciate the difficult decisions one must make in order to do the business of the people and exercise our constitutional obligations, particularly in the face of obstruction by a few. But you and I have worked well together over the years, and I know that you would never make those accusations about me unless you had somehow received inaccurate information. Unfortunately, that is what seems to have occurred in this case. I appreciate you and your consideration of this letter. Sincerely, Orrin G. Hatch, Chairman.

Mr. HATCH. That letter makes it very clear that not only were the rules not abused, there was an abuse by the other side in trying to not live up to the rule we have in the committee that any item on the agenda can be put over for a week, and that in the next week there is a vote on that item, unless the chairman and the ranking member agree. In this case, we not only put over Roberts and Cook for a week, we put them over for 2 weeks, because my colleagues asked for it. I agreed to do that in deference to them. Then, when it came time to vote for them, I walked into the committee room and I was told by the ranking member that they weren't going to vote on Roberts and Cook that day. I said: Oh, no, we are going to vote on them because that is what we agreed to. We are going to vote on them because that is what the rules agree to. So I waited for all Senators to make their comments. We took 3 hours to hear rather long statements. I think we were very patient with those statements because at least one of them hardly talked about the nominees but talked about a whole raft of other issues involving the committee, which is a right of a Senator. Other Senators gave long statements on the nominees themselves, which was their right to do. But when the statements wound down and there were no further statements to be given, I said: We are going to vote. And that is when people got mad and demanded that we not vote. At that point, I had to make a decision as committee chairman--which is a legitimate decision--that we are going to vote, that filibusters are not proper in committee, and that we had people on both sides who were willing to vote for these nominees. We had people from the minority and from the majority. All three of them passed out with substantial votes. So there is hardly room here to criticize what was done. Any committee chairman worth his or her salt has to ultimately bring the matters before the committee to a vote. That is what I did. In the case of judicial nominations, I don't believe there should be filibusters under any circumstances against Presidential judicial nominees. I think they should be voted up or down--not only in committee but on the floor of the Senate as well. These are important positions. We should not treat them as though they are just regular legislative items that can be kicked around at will. These are important positions that literally must be given their chance for a vote. Not only were the rules followed, but we were very gracious and considerate in allowing my colleagues on the other side to make whatever statements they wanted to. I cannot say we have to do that every time. If people are going to come in and make hour-long statements in the future, and do it solely for the purpose of obstruction, then I think there comes a time when a chairman has to exercise his or her prerogative and call for a vote. If the Democrats don't like the nominees, they should vote them down. I hope the only negative votes will be those that were well considered, decent, honorable, by those who literally had good reason behind a negative vote. But even if they didn't have these good reasons, then they have a right to vote them down. Others have a right to vote them up. If a nominee passes, then the nominee should pass out of committee and come to the floor. Hopefully, we will have a debate for a reasonable length of time and we will vote on nominees, as we should, on the floor of the Senate. Let no one be deceived; the rules were followed. I chatted with the Parliamentarians beforehand to make sure I was on a good track here and that I was following the best standards of the Senate, even though I certainly had to put my foot down as the chairman. I acted in accordance thereto. With that, I understand the Senator from New York would like to make a statement. I yield the floor. Unanimous Consent Request--S. 414

Mr. HATCH. Reserving the right to object.

Mr. HATCH. Mr. President, it seems very interesting to me that this request would be made when our friends on the other side, last year, did not even pass a budget, for the first time since the Budget Act was enacted, and did not pass the appropriations bills, by and large.

Mr. HATCH. Mr. President, I have enjoyed my colleague's remarks, and although we have our differences on some of them, I appreciate her diligence and effort. I have a lot of respect for her. I will say that continually asking to go off the Estrada matter for other matters really concerns me, because I think it is a failure to recognize that this is one of the most important nominees and one of the most important positions in the country. There is one way to get off of this nomination, and that is to vote up or down, instead of filibustering. Do what has always been done in the past in these matters and bring this issue to a vote. Then we can go to these important economic matters and other matters as well. I have been concerned, because I remember when the minority leader and the minority whip came on the floor last week and basically said: Why are we not on economic issues? I did get very upset because I thought that is nice for them to say that, but they were not even willing to do a budget last year because it takes a lot of guts to do a budget. We always did. Last year was the first time in the history of the Budget Act that the majority party refused to do a budget. We know why. Because they made a lot of cheap shots against us when we had to make those tough decisions on the budget. Then all of a sudden they found they were in a position where shots could be taken against them, cheap or otherwise, and they were not able to get together on their side because they had so many factions on their side that did not agree. So it is easy to criticize, but you better have a better standing to criticize than what I think they have. Also, the reason we had to have this omnibus appropriations bill after the first of the year is because our colleagues on the other side could not pass the appropriations bills. We did it in a matter of weeks after we came into power this year. I think that is something the Republicans deserve a great deal of credit for. Our colleagues on the other side deserve some criticism for it.

Mr. HATCH

Mr. HATCH. Mr. President, I compliment my colleague from Idaho. He has called it exactly the way it is. What is going on is a matter of unfair competition. It is a matter of improper governmental subsidization in competition with a company that is doing it all without government subsidization. I personally thank him for his good remarks; I agree with them and I would like to be associated with them.

Mr. HATCH. Mr. President, I ask unanimous consent that I be given 1 minute. I do have the approval of the distinguished Senator from New Mexico.

Mr. HATCH

Mr. HATCH. Mr. President, it is my pleasure today to speak in support of Marian Blank Horn, who has been nominated for a second term on the U.S. Federal Court of Claims. Judge Horn is a distinguished United States Court of Federal Claims Judge whose legal career has been nothing short of stellar. Judge Horn graduated from Fordham University Law School in 1969, and began her career as an assistant district attorney in Bronx County, NY, before joining Arent, Fox, Kintner, Plotkin and Kahn, where she worked in the litigation division. From 1973 to 1975, Judge Horn was a project manager for a Study of Alternatives to Conventional Criminal Adjudication which was financed by the U.S. Department of Justice's Law Assistance Enforcement Administration. She also served as an adjunct professor at American University's Washington College of Law, where she taught the Introductory Legal Methods course. In 1975, Judge Horn joined the Office of General Counsel for the Department of Energy/Federal Energy Administration. From 1979 to 1981, Judge Horn served as the deputy assistant general counsel for Financial Incentives, Office of General Counsel, where she supervised all legal work related to financial incentives at the United States Department of Energy. In addition, she served as legal advisor to the assistant secretaries for Fossil Energy and Resource Applications, as well as the Office of Energy Research. From 1981 to 1986, she worked in the United States Department of Interior, where she assisted the Associate Solicitor and helped administer the Surface Mining Control and Reclamation Act of 1977. In 1985, Judge Horn was promoted to principal deputy solicitor, where she supervised all the Regional and Field Offices of the Solicitor's Office in the Department and acted as the chief lawyer to the Secretary and Under Secretary of Department of Interior. So you see that Judge Horn already had a very impressive resume in 1986, when she was first confirmed. Since that time, she has built an excellent reputation as a judge, and I am confident that Judge Horn will continue being a fine member of the Federal Bench.

Mr. HATCH

Mr. HATCH. He is an operative working within Iraq----