Orrin Hatch

Mr. HATCH

Mr. HATCH. More than passionately.

Mr. HATCH. Mr. President, I have heard these crocodile tears on the other side. It is amazing to me because they know what a phony issue is--the request for confidential and privileged memorandum from the Solicitor General's Office--and they are building their whole case on that. All they have to do to go on to anything else in the Senate is to exercise the advice and consent that the Constitution talks about; that is, to vote up and down. If they feel as deeply as they do about these, I think, spurious arguments that have been made just in the last few minutes--by the way, made by people who had all of last year to come up with a budget, and for the first time in this country couldn't even do that. The reason they didn't is because they knew it was pretty tough. They criticized us all these years for coming up with these tough budgets because we had to make the decisions. Senator Domenici from New Mexico has had to make tough decisions as Budget Committee chairman. We always came up with a budget, as tough as it was. We are criticized all the time for not having enough money for the poor and this and that and everything else, every phony argument in the books. Yet when they had the opportunity and saw how tough it is to come up with a budget, my gosh, they did not do it, nor did they do all those appropriations bills that we had to do once we took over. All they have to do to go on to these wonderful economic issues--and we all want to do it--is allow a vote up or down. They don't like Miguel Estrada for one reason or another. Some of them are perhaps sincere reasons. I think other reasons are that they think he is just an independent Hispanic. Frankly, they do not like him. Vote him down, if you want. They have that right. If they feel sincerely that they are right in voting him down, vote him down. But let us have a vote. I have heard the distinguished Senator from Illinois ask, Why doesn't Mr. Estrada produce those papers? He is not in the Solicitor General's Office. He is not the Attorney General of the United States. He is not the Chief Counsel of the White House. He hasn't controlled those papers. As far as he is concerned, he is proud of his work and they could be disclosed. The problem is seven former Solicitors General-- four of them are Democrats--said you can't give those kinds of papers up because it would ruin the work of the Solicitor General's Office. Look, if they are sincere and they really want to get on to the budget work they never did last year, the appropriations work they never did last year--we had to do it--then just vote. It is tough work. By gosh, it is tough to come up with a budget. I know the distinguished Senator from New Mexico has had to go through a lot of torment and criticism year after year to come up with a budget. But he always did, and we always did. We were maligned by the other side because we were never good enough, because we had to live within the budget constraints. When they found that they had to live within the budget constraints, they skipped a beat and missed doing the budget. Here they are coming in here with crocodile tears saying a circuit court of appeals judge is not important enough. Well, if he is not, vote him down, let's have a vote, and let's vote him down. Now----

Mr. HATCH. Mr. President, I object.

Mr. HATCH. If I could finish. I am wound up right now. I would like to unwind a little bit before I yield to my dear friend. And to say that we are filibustering because we are trying to get a vote on this? Why don't we just do that? Why don't I just--I ask unanimous consent that we proceed to a vote on the Miguel Estrada nomination, so we can get to all these important budget matters. It would be a quick way of doing it. And those who do not like Miguel Estrada: vote him down. Those who do: vote him up. I ask unanimous consent that we proceed to a vote on Miguel Estrada.

Mr. HATCH. Well, I yield the floor. Several Senators addressed the Chair.

Mr. HATCH. I know Senator Domenici has been waiting a long time.

Mr. HATCH. Ask a question.

Mr. HATCH. Regular order, Mr. President.

Mr. HATCH. Look, I don't withdraw that statement. That statement is an important statement. The distinguished Senator from New York and his colleagues had almost 2 years. The distinguished Senator from New York conducted this hearing. The distinguished Senator from New York said it was a fairly conducted hearing. The distinguished Senator from New York had a right to ask any questions he wanted. He did. The distinguished Senator from New York had a right to ask written questions. He did not. He could have asked: What do you think about the 11th amendment? Listen, that is a question that is almost improper because you are saying----

Mr. HATCH. Let me finish answering your question. He could have asked: What do you feel about the first amendment? Are you kidding? That is not a question that should be asked a judicial nominee. And any judicial nominee would answer: What I feel is irrelevant--which is the way he answered it. It is what the law says. Frankly, he answered that time after time after time on question after question after question. Where were the written questions of the distinguished Senator from New York? They were not there. You had a chance to do it. You didn't do it. Now, after the fact, 2 years later, this man has been sitting there, waiting for fairness, being treated totally unfair, and he can't get--my gosh, he can't get a vote up or down, which is what the Washington Post says we should do.

Mr. HATCH. No. Senator Domenici has been waiting for well over an hour. And, well, I am not yielding the floor. Several Senators addressed the Chair.

Mr. HATCH. There is a lot more than a transcript here.

Mr. HATCH. Parliamentary inquiry.

Mr. HATCH

Mr. HATCH. Mr. President, I have listened to the distinguished Senator from Nevada, and I have a few things to say. Mr. President, I rise today to address, once again, the nomination of Miguel Estrada for the United States Court of Appeals for the District of Columbia Circuit. Are we ready to go?

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Subcommittee on Aviation be authorized to meet on Tuesday, February 25, 2003, at 9:30 a.m. on FAA reauthorization-airport financing.

Mr. HATCH. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Tuesday, February 25, 2003 at 2:30 p.m. to hold a closed hearing.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on Tuesday, February 25, 2003, for a joint hearing with the House of Representatives' Committee on Veterans' Affairs, to hear the legislative presentation of the Disabled American Veterans. The hearing will take place in room 216 of the Hart Senate Office Building at 2 p.m.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Tuesday, February 25 at 10:00 a.m. to consider the President's proposed FY 2004 budget for the Department of Energy.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Tuesday, February 25 at 2:00 p.m. to receive testimony regarding natural gas supply and prices.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, February 25, 2003, at 9:30 a.m., to hold a hearing on The State of the World Report on Hunger.

Mr. HATCH. Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Tuesday, February 25, 2003, at 9:30 a.m., in open and closed session, to receive testimony on the defense authorization request for fiscal year 2004 and the future years defense program.

Mr. HATCH

Mr. HATCH. Mr. President, I am delighted that we are considering S. 151, the PROTECT Act of 2003. Senator Leahy and I introduced this bill last May following the Supreme Court's decision in Ashcroft v. Free Speech Coalition, a ruling that made child pornography prosecutions immeasurably more difficult. This problem is intolerable and demands our immediate attention. Because we could not get this bill to the President's desk last year, it has been my top priority this year. I want to begin by thanking Senator Leahy and his staff for working so diligently with me in writing the PROTECT Act during the past ten months. While we have not seen eye to eye on every provision, we have agreed about most of them. We still have some honestly held disagreements, but that is hardly unusual when people talk about the First Amendment. Senator Leahy's valuable input and insights helped to make this a better bill. I very much hope that he is as proud of the final result as I am. Mr. President, Congress has long recognized that child pornography produces three distinct and lasting harms to our children. First, child pornography whets the appetites of pedophiles and prompts them to act out their perverse sexual fantasies on real children. Second, child pornography is a tool used by pedophiles to break down the inhibitions of children. Third, child pornography creates an immeasurable and indelible harm on the children who are abused to manufacture it. It goes without saying that we have a compelling interest in protecting our children from harm. The PROTECT Act strikes a necessary balance between this goal and the First Amendment. First--and most significantly--the bill plugs a gaping loophole that exists in current law. Following the Supreme Court's decision last April, child pornographers can evade even legitimate prosecutions by falsely claiming that their sexually explicit materials did not depict real children. This frivolous argument is made possible by the growth of technology. Computer imaging technology has become so sophisticated that even experts often cannot say with absolute certainty that an image is real or a ``virtual'' computer creation. The PROTECT Act therefore permits a prosecution to proceed when the child pornography involves life-like computer images of real kids. The bill balances this provision by creating a new and powerful affirmative defense. In virtually every prosecution for child pornography, the PROTECT Act affords the accused a complete defense to liability upon a showing that the child pornography did not involve an actual minor. In creating this new balance, the bill responds directly to the concerns expressed by the Supreme Court in the Free Speech Coalition decision. Second, the PROTECT Act creates three brand new offenses that are designed to target some particular problems that stem from child pornography. One provision prohibits the use of child pornography to entice a minor to participate in sexual activity or some other crime. Another prohibits offers to buy, sell or trade either obscene or actual child pornography. The third creates a new offense for obscene child pornography that will be punished more severely than ordinary obscenity. Third, the PROTECT Act expands the record keeping requirements in existing law that apply to those who decide to produce sexually explicit materials. Section 7 of the bill expands the scope of materials covered to reflect the computerized manner in which they are increasingly being distributed and sold. Producers of such sexually explicit materials must make and maintain records confirming that no actual minors were involved in the making of the sexually explicit materials. In light of the difficulty experts face in determining an actor's true age and identity just by viewing the material itself, maintaining these records is vital to ensuring that only adults appear in such productions. Fourth, in recognition of the enormous breadth and scope of the problem, the PROTECT Act broadens enforcement efforts in order to create a more level playing field. Section 9 of the bill provides extra-territorial jurisdiction over those foreign producers of child pornography who transport, or intend to transport, such materials to the United States. Because this is one area of the law where we can truly benefit from more vigorous enforcement, section 14 of the bill directs the Department of Justice to appoint 25 additional attorneys dedicated to enforcing child pornography laws, and section 11 creates a new civil action for those aggrieved by such violations. The PROTECT Act also toughens existing penalties for offenders. Not only does it broaden the category of repeat offenders subject to more stringent criminal sentences, but it also calls on the U.S. Sentencing Commission to review the appalling low sentences that currently apply to offenders who travel across state lines in order to have sex with children. Finally, the PROTECT Act contains new provisions to refine and enhance the government's existing authority to tackle child sex crimes. Section 15 adds a number of child crimes into the section of Title 18 that authorizes the government to apply for wiretaps. Without this new provision, the government could not seek a wiretap to investigate cases where, for example, children are being forced to engaging in sex for money. Section 16 updates the type of information the government can obtain from telephone companies with an administrative subpoena in, among other things, an investigation involving the sexual exploitation of children. Other sections of the bill, moreover, enhance the ability of internet service providers to report instances when they spot child pornography, and authorize the release of that information to state and local officials for prosecution. The PROTECT Act has been carefully drafted to avoid constitutional concern. I wish it could be stronger. But because of the Supreme Court decisions, we have had to draft it the way we have. From the beginning, I have worked very hard to digest the relevant legal issues and to make the PROTECT Act square with the law as articulated by the Supreme Court. This bill has gone through more than a dozen rounds of edits since we began drafting it in April 2002. The issues are complex, and we have meticulously gone over every word and phase numerous times in order to write a carefully tailored law that will withstand judicial review. I am confident that we have done just that. The end result of all of our hard work is a bill that we can all be proud of: One that is tough on pedophiles and child pornographers in a measured and constitutional way. Congress has consistently acted in a bipartisan manner to address the harms of child pornography. I am pleased to report that we are doing so again with the PROTECT Act. This has been a bipartisan effort from the beginning, and it remains a bipartisan effort today. I respect my colleagues on the other side for being willing to work with us to fashion this bill in a constitutionally sound form. We expect the overwhelming support of Members on both sides of the aisle, and, quite frankly, our Nation's children deserve no less. Mr. President, I ask unanimous consent that the Congressional Budget Office cost estimate for the PROTECT Act, S. 151, be printed in the Record.

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

Mr. HATCH. Mr. President, would I be correct, if I yielded back my time, then all time would be yielded back? Is that correct?

Mr. HATCH. I thank my colleague.