Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, year after year, millions of people flock to Washington D.C. to visit the seat of American government. They come from every state of the union and most of the nations of the Earth to view for themselves the workings of the oldest democracy in the world. This city, through its historic edifices, tells the story of our nation. I am grateful for the thousands of professionals and volunteers who help to share that story with all who come to hear it. Over one million of these visitors come to the Supreme Court Building each year. They come to see, experience, and learn about the workings of American justice. Meeting this large demand can be taxing on the resources of the Court. To satisfy this need, without adding an undue burden to the budget, the Court has asked Congress to enact legislation permitting volunteers from the Supreme Court Historical Society to conduct public tours of the Supreme Court building. This legislation will provide the Court with the same benefits that have recently been extended to the Congress. Currently, 35 volunteers from the Capitol Guide Service assist Capitol visitors by providing historical perspective and insight. I have been told by the Capitol Guide Service that the influx of volunteers, allowed by legislation in the 104th Congress, enabled them to increase the volume of their tours of the Capitol by approximately twenty-five percent. Moreover, it provided the personnel necessary to expand their service to the exterior of the Capitol. Guides positioned outside the Capitol help direct visitors and provide information about the historic external architecture of this building. The use of volunteers has improved the experience of citizens visiting the Capitol grounds. The proposed legislation, like that covering congressional volunteers, will have no adverse fiscal impact, nor will it displace any Supreme Court employees. The legislation will, however, dramatically improve the ability of the Supreme Court to educate the public about this distinctly American institution. I believe that upon passage of this legislation, all Americans who visit our seat of Justice will appreciate the expanded services made available by its enactment.

Mr. HATCH. Mr. President, the first freedom guaranteed in the Bill of Rights is the freedom to believe and to put those beliefs into practice as we think right, without government interference. This promise of freedom of worship is, for many, this country's founding principle--the pilgrims' reason for braving thousands of miles of dark and dangerous seas, and countless privations once here. The Constitutional guarantee of the free exercise of religion for all has been a beacon to the world throughout our history. In America, priests should not be punished for declining to violate the confidence of the confessional to turn state's evidence against religious confessors. In America, the ability of citizens to hold private Bible studies in their own homes or the freedom of synagogues and churches to locate near their members should not be left entirely to the whims of local zoning boards. Congregants of any faith should not be told by the government who they can and cannot have as religious leaders and teachers. No, not in America. Last year, when the Supreme Court struck down part of the Religious Freedom Restoration Act in the case of City of Boerne versus Flores (117 S.Ct. 2157 (1997))--an Act that sought to redress a threat to religious liberty of the Court's own making--we who value the free exercise of religion vowed we would rebuild our coalition and craft a solution which appropriately defers to the Court's decision. Well, we have done so, and we are ready to move forward. We introduce today legislation that uses the full extent of our powers to make government cognizant of and solicitous of the freedom of each American to serve his or her concept of God. Where adjustment in general rules can possibly be made to accommodate this most basic liberty, it ought and must be made. As our government exists to guarantee such freedoms, government should only in the rarest instances itself infringe on this most basic and foundational freedom. We have worked together across party lines and with a coalition of truly remarkable breadth to fashion federal legislation to protect religious liberty that is consistent with both the vision of the Framers of the First Amendment and the ruling of the current Supreme Court about Congress' power to legislate in this area. The legislation that we introduce today will subject to strict scrutiny laws that substantially burden religious exercise in those areas within legitimate federal reach through either the commerce or spending powers, and provides procedural helps to ensure a full day in court for believers who must litigate to vindicate Free Exercise claims in areas of predominantly state jurisdiction. The legislation seeks to protect religious activity even in the face of general legislative rules that make that worship difficult or impossible through unawareness, insensitivity, or hidden hostility We believe we have constructed legislation that can merit the support of all who value the free exercise of religion, our first freedom. We commend it to our colleagues in the Congress, and to all those who wish to keep the Framers' promise of religious freedom alive for all Americans of all faiths. Mr. President, I commend this important legislation to my colleagues for their support. It is backed by an unprecedented coalition ranging from Focus on the Family, Family Research Council, and the Southern Baptist Convention to People for the American Way and the ACLU. I also ask unanimous consent that a copy of the bill and an explanatory section by section analysis be placed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, the first freedom guaranteed in the Bill of Rights is the freedom to believe and to put those beliefs into practice as we think right, without government interference. This promise of freedom of worship is, for many, this country's founding principle--the pilgrims' reason for braving thousands of miles of dark and dangerous seas, and countless privations once here. The Constitutional guarantee of the free exercise of religion for all has been a beacon to the world throughout our history. In America, priests should not be punished for declining to violate the confidence of the confessional to turn state's evidence against religious confessors. In America, the ability of citizens to hold private Bible studies in their own homes or the freedom of synagogues and churches to locate near their members should not be left entirely to the whims of local zoning boards. Congregants of any faith should not be told by the government who they can and cannot have as religious leaders and teachers. No, not in America. Last year, when the Supreme Court struck down part of the Religious Freedom Restoration Act in the case of City of Boerne versus Flores (117 S.Ct. 2157 (1997))--an Act that sought to redress a threat to religious liberty of the Court's own making--we who value the free exercise of religion vowed we would rebuild our coalition and craft a solution which appropriately defers to the Court's decision. Well, we have done so, and we are ready to move forward. We introduce today legislation that uses the full extent of our powers to make government cognizant of and solicitous of the freedom of each American to serve his or her concept of God. Where adjustment in general rules can possibly be made to accommodate this most basic liberty, it ought and must be made. As our government exists to guarantee such freedoms, government should only in the rarest instances itself infringe on this most basic and foundational freedom. We have worked together across party lines and with a coalition of truly remarkable breadth to fashion federal legislation to protect religious liberty that is consistent with both the vision of the Framers of the First Amendment and the ruling of the current Supreme Court about Congress' power to legislate in this area. The legislation that we introduce today will subject to strict scrutiny laws that substantially burden religious exercise in those areas within legitimate federal reach through either the commerce or spending powers, and provides procedural helps to ensure a full day in court for believers who must litigate to vindicate Free Exercise claims in areas of predominantly state jurisdiction. The legislation seeks to protect religious activity even in the face of general legislative rules that make that worship difficult or impossible through unawareness, insensitivity, or hidden hostility We believe we have constructed legislation that can merit the support of all who value the free exercise of religion, our first freedom. We commend it to our colleagues in the Congress, and to all those who wish to keep the Framers' promise of religious freedom alive for all Americans of all faiths. Mr. President, I commend this important legislation to my colleagues for their support. It is backed by an unprecedented coalition ranging from Focus on the Family, Family Research Council, and the Southern Baptist Convention to People for the American Way and the ACLU. I also ask unanimous consent that a copy of the bill and an explanatory section by section analysis be placed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, nearly 2 years ago, President Clinton announced, from the South Rim of the Grand Canyon, the formation of the country's newest national monument, the Grand Staircase-Escalante Monument in southern Utah. Because of the clandestine manner by which the Administration made this decision and planned its announcement, what should have been cause for celebration among Utahns resulted in feelings of exploitation and abuse. Public trust in our federal government reached an all time low in southern Utah, and many wounds inflicted then still exist today. Today, I am introducing legislation, along with my colleague Senator Bennett, which, if passed, will help restore trust in our government and assist the healing process among our rural citizens in Utah. The Utah Schools and Lands Exchange Act of 1998 codifies a recently signed agreement brokered by the Secretary of Interior, Bruce Babbitt, and Utah Governor Michael Leavitt to exchange Utah School Trust lands located within Utah's national parks, monuments, recreation areas, and forests for cash and federal assets in other parts of Utah. The collaboration that should have taken place prior to the establishment of the Grand Staircase-Escalante Monument has finally taken place to mitigate one of the severest impacts of that presidential declaration. This agreement is the result of a lengthy and somewhat fragile negotiation, which included such critical issues as achieving the effective management of the public's land, preserving the environment, and consummating a fair and equitable exchange between the federal government and the State of Utah. The result is a mutually beneficial exchange of state and federal property that deserves the support and approval of the Congress. As my colleagues may recall, when Utah achieved statehood in 1896, a number of sections within each township were set aside for the support of the common schools. By law, these lands, known as School Trust Lands, are to be managed in the best possible way to generate revenue for Utah's school children. Several western states have a similar revenue plan for their public school systems. Utah's checkerboard pattern of land owernship--squares of federal, state, and private land intermingled throughout the state--has historically created difficulties between the federal and state governments. Conflicts of interest between federal and state land managers became more obvious and divisive as national parks, forests, or monuments were created. When federal land is set aside or designated as a national park, forest, or monument in Utah, our School Trust Lands are captured within their boundaries. In effect, the state loses its ability to generate revenues from these lands because they have been surrounded by lands in a specially protected designation. By 1990, over 200,000 acres of school trust land were isolated within federal designations. In 1993, Congress passed legislation I sponsored along with other delegation members--the Utah Schools and Lands Improvement Act of 1993, P.L. 103-93-- to help resolve this land management situation. But implementation has been unsatisfactory. There have been endless arguments over appraisals and literally millions of dollars in expenses to the state for legal and research activities. For this reason alone, the legislation we are introducing today is necessary. During his announcement to establish the Grand Staircase-Escalante National Monument, President Clinton voiced his firm commitment that Utah's school children would not be negatively affected by the creation of the Monument. In other words, those School Trust Lands captured within the Monument's boundaries would be withdrawn and made fully available, and thus profitable, for the benefit of Utah's public education system. The principal purpose of this bill is to put the bipartisan, federal-state negotiated agreement into effect and to ensure that the President's promise to protect Utah's school children does not ring hollow. This is accomplished in several ways. First, as I mentioned, this bill will transfer approximately 350,000 acres of School Trust Lands that are located within Utah monuments, recreations areas, national parks, and forests, to the federal government. These lands are similar in nature to the adjacent federal lands and are deserving of the same designation and special management considerations as their federal neighbors. This exchange harmonizes the land ownership pattern within Utah's national parks, forests and monuments, thus eliminating any competing management objectives within these designations. The American people will be greatly benefited once the entire acreage within a park or forest is federal land. Let me assure my colleagues that those lands to be acquired by the federal government are just as extraordinary as the adjacent federal lands. For example, this acreage includes: Eye of the Whale Arch, located in Arches National Park; the Perfect Ruin (an Anasazi ruin) and the Jacob Hamblin Arch of Glen Canyon National Recreation Area; several hundred foot red rock cliffs located within in the Grand Staircase-Escalante National Monument; and the high mountain alpine area in the Wasatch- Cache National Forest known as Franklin Basin. It includes many other exciting natural wonders, such as ancient Native American rock art panels in Dinosaur National Monument and unique geologic formations of the Waterpocket Fold within Capitol Reef National Park. Our proposal will protect these and other precious land forms by transferring their ownership to the federal government. For its part, the State of Utah will receive $50,000,000 in cash previously set aside in the 103rd Congress for P.L. 103-93. This money has already been appropriated and thus there is no budgetary impact caused by this bill. An additional $13,000,000 produced from unleased coal sales will also be forthcoming to the State. These funds will all be deposited to the Utah Permanent School Fund for the benefit of Utah's current and future school children. In addition, under the terms of the agreement, the State will gain access to 160 million tons of coal, 185 billion cubic feet of coal bed methane resources, 139,000 acres of land and minerals located in nine Utah counties, and a variety of minerals including limestone, tar sands, oil, and gas. Coal reserves the state will receive include the Mill Fork Tract and North Horn Tract in Emery County; the West Ridge Tract in Carbon County; and the Muddy Creek and Dugout Canyon Tracts located in both Carbon and Emery Counties. The coal bed methane resources acquired by the state are situated in the Ferron Field, located in Carbon and Emery counties, and totals 58,000 acres. Finally, the agreement provides for additional state acquisitions, including limestone deposits, oil and gas properties, and Tar Sands, and several properties identified in 1993 will be transferred to state control: the Blue Mountain Telecommunication Site, located in Uintah County, and the Beaver Mountain ski resort in Cache County. Mr. President, in closing let me mention one important point regarding the Babbitt-Leavitt agreement to be effectuated by the legislation we are introducing today. The entire exchange is of approximately equal value. This is a delicately structured package that includes an exchange of state lands for federal assets. Each party to the agreement recognizes this fact, which is the glue keeping this agreement together. And, while protecting the interests of both the State of Utah and the federal government, the agreement and the bill also protect existing stakeholders, such as the affected local governments and the valid existing rights of permittees, such as ranchers and mining leases. As I mentioned earlier, the important fact to keep in mind is there is no impact to the federal budget from this legislation. Mr. President, Secretary Babbitt and Governor Leavitt have achieved an historic agreement that is truly remarkable. The State of Utah has been trying to exchange School Trust Lands captured within federal reservations for decades, thus allowing these lands to be profitably utilized for the benefit of Utah's school children. We now have an opportunity through this agreement to reach this worthwhile goal. I hope that the Senate will seriously review this agreement and this legislation will add its support with little, if any, alteration. I believe this proposal is necessary and will provide substantial benefit to the people of Utah and the citizens of this country.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to support final passage of the conference report on the reauthorization of the Intermodal Surface Transportation Efficiency Act (ISTEA). I commend my colleagues who have worked so hard on this bill, Senator Chafee, Senator Warner and Senator Baucus, Senator Domenici and Senator D'Amato. This has been an incredibly difficult process. Whenever you have to divide resources among competing interests there is going to be friction. The conferees on this legislation have done an admirable job in balancing these competing interests in the name of our shared national interest in safe, efficient highways. This highway and transit reauthorization is important for the country and for my state of Utah. Utah needs this bill and I am happy that we can deliver it to them. Like a lot of states, Utah has a number of crucial infrastructure improvements needed in our highway and transit systems. Unlike other states, however, Utah must complete a number of these projects in time for the 2002 winter Olympic Games. This bill makes clear that the federal government has a responsibility to assist my state of Utah make the transportation improvements needed to successfully host the 2002 Games. By including language which gives the Secretary of Transportation the authority to give priority consideration for Olympic host cities, the Congress has acknowledged that these really are America's Games. I also applaud the members of the Environment and Public Works Committee for crafting a formula which recognizes the fact that there has been a population shift to the west and that a federal highway funding formula must accommodate the rapid growth in western states. There are a number of important projects authorized in this legislation. I am pleased that we were able to bring a number of earmarked demonstration projects up to an appropriate level. Utah is growing quickly both in population and vehicle miles traveled. These projects, all part of the state's transportation improvement plan, will make a real difference in a number of rural counties. Finally, I wish to commend all the members of the Utah delegation. We are a small delegation, but we are a strong delegation and when we work together, as we have all done relative to this legislation, we are an effective delegation. I thank the Chair and yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, we were all shocked and saddened by the tragic shooting incident at the Thurston High School in Springfield, Oregon. I listened with sympathy this morning to my colleagues from Oregon, and share their sentiments. My heart goes out to the victims of this horrendous crime, and my prayers are with the injured, and with the families of all the victims in the Springfield community. I know that every parent or grandparent who sends a child to school shares the grief of the Springfield families. This kind of tragedy has become far too common. It was only two months ago that we were shocked by the violence and horror of the schoolyard shooting in Jonesboro, Arkansas. Every day, it seems, we are assailed by new stories of senseless crimes committed by juveniles who should be too young to be capable of such acts. Our juvenile crime problem has taken a new and sinister direction. I can imagine few acts more heinous than some of the crimes recently committed by juveniles around the country. We seem now to be in a new era, in which juveniles are committing sophisticated adult crimes. This disturbing trend demonstrates the need to reform the juvenile justice system that is failing the victims of juvenile crime, failing too many of our young people, and ultimately, failing society. The Senate has before it comprehensive youth violence legislation. S. 10, the Hatch-Sessions Violent and Repeat Juvenile Offender Act, reported out of the Judiciary Committee last year on bipartisan vote. The goal of S. 10 is to reform and redirect the role played by the federal government in addressing juvenile crime in our Nation. Responding to the testimony and advice of many state and local officials, S. 10 reauthorizes and streamlines the Juvenile Justice and Delinquency Prevention Act (JJDPA), which provides assistance to the states in fighting juvenile crime. S. 10 also creates a $500 million per year incentive block grant program for the states. These block grants can be used for a multitude of purposes, such as incarceration, graduated sanctions, serious and habitual offender programs, juvenile criminal record sharing, drug testing and treatment of juvenile arrestees, and numerous prevention programs. In the face of tragedies such as the Springfield and Jonesboro murders, it is tempting to look for easy answers. I do not believe that we should succumb to this temptation. We are faced, I believe, with a problem which cannot be solved solely by the enactment of new criminal prohibitions. It is at its core a moral problem. Somehow, in this case and too many others like it, we have failed as a society to pass along to the next generation the moral compass that differentiates right from wrong. This cannot be legislated. It will not be restored by the enactment of a new law or the implementation of a new program. But it can be achieved by communities working together to teach accountability by example and by early intervention when the signs clearly point to violent and antisocial behavior, as seems to be the case in some of these tragedies. S. 10 provides the framework to address the modest federal role in this effort. We should not let politics overwhelm this issue. I believe that this legislation must move forward. This will require us to work together. It will also require leadership from the Administration. In the ten months since this legislation was ordered reported from the Judiciary Committee, we have heard no productive comment from the Administration on the bill. The President must show leadership on this, and support S. 10. Otherwise, I am afraid that another year will pass without our having taken action on this critically important issue. I also ask my colleagues to join me in this effort, and to join me in extending the sympathy of the Senate to the families and victims, to the community of Springfield, and the State of Oregon.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to join with my distinguished colleague, Senator Feinstein, in introducing this legislation to combat the efforts of a few overzealous individuals to improperly intrude upon other's privacy rights. I am cosponsoring this legislation, in large measure, as a tribute to the efforts of Congressman Sonny Bono, who brought this issue to the fore. As we all know, long before he was elected to Congress, Representative Bono achieved celebrity status in the music business and on television. He was thus acutely aware, from an early age, of the costs of fame. A cost that some, such as rising television star Rebecca Schaeffer, had to pay in blood, and others, such as Arnold Schwarzenegger, Steven Spielburg, Jodie Foster, David Letterman, and Elizabeth Taylor, to name but a few, have had to pay with a loss of privacy and an inability to freely mingle in public. Unfortunately, certain individuals within the generally responsible media corps have forced many of these well-known figures to hide behind a veil of high-priced security systems and bodyguards. I know that some so-called celebrities have openly questioned whether their fame is worth the price of sacrificing their privacy and their ability to live normal lives. I know, too, that my colleague, Senator Feinstein, was herself once the target of a stalker. So I know that this legislation means a great deal to her on a personal level. As public figures, whether as actors or musicians or yes, even Senators, we must expect a certain amount of media attention. Indeed, most of my colleagues on the Hill relish such attention--particularly in election years! Press coverage--some of it favorable, some of it not so favorable--is all a part of the system. Indeed, it is an important part of our democratic system. So important that the Constitution's framers bestowed upon us the First Amendment protections of free speech and press. And lest we condemn those who have followed recent infamous criminal trials too closely, I would note that the Sixth Amendment guarantees the right to a public trial. The glare of the spotlight is an unavoidable, and in most cases, laudable, feature of a free democratic-republic. Unfortunately, just as the right to swing one's fist may end at another man's nose, the right to aim one's camera at another person's face may end where that person has a reasonable expectation of privacy. Undoubtedly, the privacy expectations of public figures are considerably different from that of private individuals. That is a reality that all who walk in the glare of the camera come to expect and learn, for the most part, to deal with. But when the media become too intrusive, or cross lines of general decency or responsibility, something must be done. It is one thing for the media to attend a press conference where I introduce this legislation--it is quite another thing, however, for the media to follow me home and train their cameras on my windows. I know, for example, that Arnold Schwarzenegger and Maria Shriver did not appreciate the attempts of some in the media, shortly after Mr. Schwarzenegger had been released from the hospital after undergoing open heart surgery, to stop their van on the street as they were taking their children to school, in an attempt to get photographs. I don't think any of us here would appreciate it if someone tried to harass our spouses or fathers or mothers as they left the hospital after having had major surgery. Public figure or not, some things simply cross the bounds of responsible journalism or media coverage. I think the recent death of Princess Diana focused efforts to deal with an overly intrusive media--even if it is unclear whether the media had anything to do with that tragedy. In fact, some people overreacted to that horrible event, pointing fingers at the press before the facts were established. Regardless of the media's role in that accident, the mere fact that people recognized that she had long been harassed by an overly aggressive media, and that it was not such a stretch to believe that the paparazzi could have played a role in her tragic death, demonstrates the seriousness of this problem. In the wake of Princess Diana's death, Representative Bono and Senator Feinstein began a tireless crusade to see Federal legislation enacted to protect people from the so-called stalkarazzi. We are now witnessing the fruits of their efforts--I only wish that Representative Bono had been here to see this legislation introduced. I want to say to Senator Feinstein that I commend her for advocating this legislation. Indeed, I am ready to roll up my sleeves and work with her to address this problem. I am committed to moving this legislation through the Judiciary Committee. At the same time, however, we must take care to craft legislation that will be respectful of our First Amendment rights and of any federalism concerns. In fact, I hope the States will view this bill, as it is refined in committee, as a model for adopting similar reforms. And I am confident that we will be able to strike a reasonable balance between the press' First Amendment rights to seek information about public figures and the right of those individuals to their reasonable expectations of privacy. After all, we must take care that the solution to this admitted problem does not trample on important rights. With these concerns in mind, I intend to work with Senator Feinstein to ensure that we have the best legislation possible. We hope to hold hearings to identify the extent of these problems and to determine how best to combat attempts by some overzealous members of the media in their efforts to profit by intruding on others' privacy. I believe that this legislation is an important first step in that process.

Mr. HATCH

Mr. HATCH. Mr. President, since the Civil War, more than 1.1 million American veterans have lost their lives in service to our Nation. I am humbled by their sacrifice. I am grateful for the price they have paid for our liberty, the terrible price of individual lives, of men and women who were part of families. As we approach this Memorial Day, I want to pause a moment during this debate to remember their gift. I am especially proud of Utah's proud tradition of honorable service. The story of the Mormon pioneers who made the grueling trek across the plains and over the Great Divide to escape persecution, in search of religious freedom is well known. Perhaps less well known is the story of the Mormon battalion. Mr. President, in 1846, while there was an active order in effect in the state of Missouri for the extermination of Mormons, these Americans who had been driven from their homes in Nauvoo, Illinois, were asked to assemble a battalion of 500 men. With their ranks and strength already significantly depleted by disease, hardship, and persecution, most would have understood if the story had ended with an indignant refusal to respond to the request. Instead, led by Brigham Young, these fathers, brothers, and sons who had seen their rights as Americans trampled, stepped forward to answer their country's call. I might mention that among them was a young man named Orrin Hatch. This same, passionate willingness to serve one's country still thrives throughout my state. I remember today and honor the 147,000 veterans throughout the state of Utah who have honorably served. But, on Memorial Day, we especially remember those who left in service to our country but who did not return. They have preserved freedom for all generations who followed.

Mr. HATCH

Mr. HATCH. I will be happy to yield without losing my right to the floor.

Mr. HATCH. You are welcome. A critical component of our debate must be the issue of this bill's constitutionality. This is a matter of extreme seriousness. We are considering a bill that is fundamentally flawed with respect to its constitutionality. And that is despite the fact that each one of us swore to uphold the Constitution of the United States of America when we were elected and sworn into this office. Many skeptics, particularly in the media, contend that Congress will pass for political reasons any measure that gains any sort of consensus, even if it violates the Constitution. I reject that. I certainly hope they are wrong. I believe that the most important job that members of Congress have is to protect, preserve, and defend the Constitution of the United States. And, as Judiciary Committee chairman, I take this job very seriously. Why? The answer is, for over 2 centuries the Constitution has been the genesis of our liberty and a source of America's amazing growth and prosperity. The Constitution fosters liberty and prosperity by circumscribing Government's ability to interfere in the lives of the people. Thus, our Government is termed one of limited powers. In fact, I believe that the structure of the Constitution--the separation of powers, checks and balances, and federalism--and not the system of courts, is the best protection of our liberties. The salient fact is that the Constitution itself was designed to be, in the words of Alexander Hamilton in the Federalist No. 84, ``in every rational sense, and to every useful purpose, a bill of rights.'' One such constitutional mechanism to protect liberty is limiting Congress' legislative authority to only those laws that are reasonably derived from its enumerated powers contained in Article I of the Constitution, which in practice means that such laws must be consistent with the meaning of the Constitution's provisions and the Bill of Rights. As such, Congress has a special role in defending the Constitution and safeguarding our liberty by policing itself and by controlling its own appetites. I wholeheartedly agree with the sentiment of Justice Oliver Wendell Holmes, who in 1904 gave the opinion that, ``It must be remembered that legislatures are the ultimate guardians of the liberties and welfare of the people in quite as great degree as the court[s].'' So this is why we are having this debate--to exercise our authority to ensure that any legislation that is passed is, in fact, constitutional. Let us confound the cynics by doing the right thing. I pray that the Senate will consider the constitutionality of the floor vehicle and any other bill offered as a substitute. To skirt this issue would be to violate our very oaths of office. I believe that the bill now being considered in this chamber suffers from a number of serious constitutional problems. These problems permeate the bill. Besides jurisprudential concerns, there are significant practical considerations, because passage of the bill could result in constitutional challenges that, if successful, will nullify the key sections of the bill. This is true for the bill as reported, the bill as rewritten over the weekend, and the bill as modified on the floor on Monday. Removal of many ``consensual'' items to a new title XIV has not addressed these concerns. Mr. President, if key provisions in the bill are nullified, the efforts of Congress to enact an effective and truly comprehensive antismoking, antisnuff, plan will be severely impaired and virtually nothing will have been done to effectively reduce youth smoking. I want to stress that the constitutional problems primarily arise because the Commerce version and several other major bills have moved from being a codification of the June 20, 1997, proposed agreement-- which contemplated voluntary participation of the tobacco companies--to tax-and-spend and command-and-control legislation. Without the voluntary participation of the tobacco companies--and the State attorneys general--both the so-called ``look-back'' provisions and advertising restrictions contained in this Commerce bill become constitutionally problematic. These and other constitutional problems raise first amendment, bill of attainder, takings clause, and due process clause issues. More specifically, without the voluntary cooperation of the parties, the advertising ban contained in S. 1415 as amended will probably fall. This is a shame, because almost all health experts believe that restricting advertising is necessary in order to reduce teen smoking. The advertising restrictions in the Commerce bill are contained in both the protocol and in a section that codifies an FDA rule that also restricts otherwise lawful tobacco advertising. The Supreme Court, in the 1996 decision 44 Liquormart, Inc. v. Rhode Island, emphasized that any restrictions on truthful advertising must receive the highest scrutiny, and be narrowly tailored to meet the statutory goal. They required that other less restrictive alternatives be employed to resolve problems before speech is censored. The majority of scholars and lawyers who have looked at the issue agree that unless the tobacco companies voluntarily waive their constitutional rights, which is what they did in the June 20, 1997, agreement, most restrictions on the advertising of a lawful product, such as tobacco, would run afoul of the first amendment. Indeed, most conclude that the restrictions contained in the protocol and FDA rule are not narrowly tailored and that other alternatives exist to reduce teen smoking. Experts from the left to the right agree. Professor Laurence Tribe of Harvard Law School; Judge Robert Bork; Floyd Abrams, one of the most notable first amendment lawyers; the liberal ACLU and the conservative Washington Legal Foundation, all oppose these advertising restrictions as unconstitutional. It does not matter whether the restrictions arise from the codified FDA rule or in the settlement itself, both are unconstitutional. Let me just read to you some of their views. Let us take the testimony of Floyd Abrams before the Senate Judiciary Committee on February 10, 1998: Any legislation of Congress which would purport to do by law what the proposed settlement would do by agreement in terms of restricting constitutionally protected commercial speech, is, in my estimation, destined to be held unconstitutional. . . . It is unlikely that, at the end of the day, the FDA's proposed regulations could survive First Amendment scrutiny. That was given before the Senate Judiciary Committee on February 10, 1998. Let me go to the next chart here. These are quotes by the American Civil Liberties Union to the Senate Judiciary Committee on February 20, 1998. Both the legislation and proposed regulation by the Food and Drug Administration. . .are wholly unprecedented and, if enacted, will most likely fail to withstand constitutional challenges. There are solid arguments. Let us go to the next one. The next chart is of Judge Robert Bork, dated January 16, 1996, when he said: The recent proposal of the FDA to restrict severely the First Amendment rights of American companies and individuals who, in one way or another, have any connection with tobacco products [is]. . .patently unconstitutional under the Supreme Court's current doctrine concerning commercial speech as well as under the original understanding of the First Amendment. Those are very strong arguments from well-established constitutional authorities. I also have a letter, dated March 17, 1998, from Floyd Abrams, to Senator McCain, concluding that the FDA restrictions are as violative of the first amendment as the somewhat broader advertising restrictions contained in the protocol of the Commerce bill. I ask unanimous consent that letter be printed in the Record.

Mr. HATCH. There are other provisions of the bill that are constitutionally infirm. The look-back penalties in the Commerce bill, which are imposed on the tobacco companies if teen smoking does not meet certain goals for reduction, are subject to constitutional challenge unless they are voluntarily agreed to by the tobacco companies. I must add that the Commerce bill now terms the penalties ``surcharges,'' but this simply is an attempt to elevate form over substance. No matter how it is termed, these payments are the functional equivalent of fines. Chief among the grounds for challenging this provision is due process. The Supreme Court has held that imposed penalties must be related to the objective of the legislation. Penalties should not be imposed without a showing of fault. I refer you to the Vlandis v. Kline case (412 U.S. 441) in 1973 which held that penalties without fault create an ``irrebuttable presumption.'' Given what we know--or do not know--about how teens react to advertising, it is possible that even if the tobacco industry does all that it can to prevent teen smoking, the target will not be met. Moreover, besides the look-back penalties, the Commerce bill contains an additional provision that companies lose their liability cap protection if underage smoking exceeds the targets by a set amount. This is also done without a showing of fault. Thus, it is clear that a court would interpret the Commerce bill's penalties as punitive. It is possible, then, that the look-back provisions could fall under the provision in the Constitution that prohibits Congress from passing a bill of attainder. I refer my colleagues to the Cummings v. Missouri case (71 U.S. 277) in 1867. George III and the Parliament had used bills of attainder to punish their political enemies, and the framers of the Constitution wisely forbade Congress from doing the same. Certain payments made by the industry raise fifth amendment takings clause issues. For instance, it could be argued that some of the payments made by the industry constitute a forced seizure of money. The initial $10 billion up-front payment and the first six annual payments are owed regardless of whether there are any tobacco-related incomes and regardless of whether there are any tobacco sales. I might also direct my colleagues attention to a new provision which extends liability to the parent companies of tobacco subsidiaries, such as R.J. Reynolds and Philip Morris, just to mention two. The effect of that provision would be to extend the penalties to the conglomerates' food business, for example, even though they have independent operations and no fault on their part has been shown. These payments can neither be characterized as a tax or a licensing fee and would constitute uncompensated takings under the fifth amendment. I refer, for example, to Webb's Fabulous Pharmacies, Inc. v. Beckwith (499 U.S. 155, 162-163), a 1980 case where cash and bank account seizures were held to be uncompensated takings under the fifth amendment. The current version of the Commerce bill requires all tobacco manufacturers to release attorney-client and work product documents to the FDA and establish, finance, and run a document depository. Now, while this is a worthwhile goal, I believe that the wrongdoings of the tobacco companies have been hidden for far too long and this information should be brought to the light of day to help the FDA in regulating tobacco and assuring the public health. What some of my colleagues fail to appreciate is that it must be done in a constitutional manner, or it is all for naught. We must remember that the June 20 settlement agreement presupposed voluntarily participation by the tobacco companies in releasing proprietary documents and in establishing and financing the document depository. While litigation documents already made public can be forwarded to the FDA, it is problematic that the industry could be required to release additional documents, especially work product, confidential, or privileged documents. Such documents are properly defined by the fifth amendment. I refer you, for example, to the Nika Corp. v. City of Kansas City (582 F.Supp. 343 (W.D.Mo.)), a 1983 case, where the corporation's documents were held to constitute property under the fifth amendment. Moreover, pursuant to the same theory, the forced funding by the industry of the depository--the leasing of the building, the salaries of the personnel--indeed as for any confiscation of cash or other valuable assets, would constitute a taking under the fifth amendment requiring compensation. I refer you to Webb's Fabulous Pharmacies, Inc. Let me conclude my remarks by saying unless we have the voluntarily participation of the tobacco industry, I doubt that a comprehensive bill like the present Commerce bill could be implemented. Such a bill will undoubtedly be successfully challenged in the courts, and I believe the litigation and the inevitable appeals could take years to resolve. In other words, I make the case that if this bill passes in its current form, without the cooperation of the tobacco companies, which will be the case, then it will be litigated for at least 10 years. And in the end, I believe, it is likely to be overturned because it will be found unconstitutional. If that is so, then we are risking the lives of 10 million more kids who will become addicted to tobacco and die prematurely as a result of our failure to do the right thing, right now, on the floor of the Senate and in the House of Representatives. It is important that these constitutional issues be addressed. It is important we not ignore the Constitution. It is important that we uphold the Constitution. I know that the health of our children is of paramount concern to all of my colleagues. So let us at least do the right thing and pass a bill that is constitutional. The protection of the Constitution and the promotion of public health are not inconsistent goals. The American people demand both and we should give it to them. I hope all who are here today will pause a moment to consider this. This total cost of this bill has been estimated by some to be $516 billion, although I believe it is far higher. It is estimated that the bill will result in a price per pack cost increase of $1.10 per pack, although this is at the manufacturers' level and I believe it will go higher. There are a whole raft of other add-on costs not included in the $1.10 figure: the wholesaler and retailer markups; the impact of growing contraband sales which divert revenues; possible triggering of the look-back provisions; and new state excise taxes. That is why several analysts who have done detailed economic models have concluded that the cost will be over $5 per pack, or over $50 per carton, of cigarettes. These are important considerations. If we do not rectify the situation and approve a constitutional measure, then I think everybody who votes for this bill would deserve a great deal of criticism for what has happened. What really bothers me, to be honest with you, is how some who represent the public health community choose to ignore these issues. Their motives seem to be directed more at punishing the tobacco companies than at securing a tough, workable bill. Nobody dislikes the tobacco companies more than I do, and nobody has fought harder to try to get the tobacco companies put in line. But frankly, unless they come on board, unless we can bring them to the table, this whole thing could amount to an exercise in futility. The constitutionality issue is key here, and I just don't see how we can continue to ignore it. Mr. DASCHLE addressed the Chair.

Mr. HATCH

Mr. HATCH. Mr. President, I thank you. I rise to oppose this amendment. This amendment strikes the so-called ``immunity" provisions of the floor vehicle. First, let me say that there are no immunity provisions in the underlying bill. The traditional definition of the word ``immunity'' is: Being in a state ``free or exempt'' from disease or taxes or civil liability or the like. Under this definition, there is no immunity in the Commerce Committee bill or in the amendment that Senator Feinstein and I have developed. The tobacco companies are not exempt from anything. They will be and are accountable for their actions. There are, however, in these bills limitations on liability procedures, but these should not be confused with immunity. Under the underlying bill, suits may still be brought. The tobacco companies could still face a multiplicity of suits for civil liability and possible criminal proceedings. This is not immunity by any stretch of the imagination. Indeed, when you are required to fork over a staggering $516 billion as the floor vehicle requires--which is really over $860 billion according to some estimates--you are not getting a free ride. If this is really immunity, do you think a bipartisan group of 40 States' attorneys general and some of the leading plaintiffs' attorneys in this country who have been suing the tobacco industry for several years would have backed the June 20 settlement? Of course they wouldn't. It contained, justifiably, in my mind, limited liability provisions broader than the Commerce Committee bill, including a limitation on punitive damages for past bad behavior by the tobacco companies. I am talking about some of the leading plaintiffs' lawyers in the country-- men like Wendell Gauthier, Stan Chesley, John Climaco, Jim Parkinson, Ken Carter, John Coale, Bob Redfearn, and Don Hildry --I hate to leave any names out because there are literally dozens of them. I am talking about people who have pursued to the full limits of the law the asbestos industry, the Dow Chemical Bhopal disaster, the Dalkon Shield, and the breast implant manufacturers, and virtually every other plaintiffs' litigation that has taken place over the last 25 years. And where would we be had these plaintiffs' lawyers not brought these suits? The States themselves are represented by very capable attorneys, attorneys general like Gail Norton of Colorado, Christine Gregoire of Washington, Jan Graham from my own home State of Utah, and Mike Moore of Mississippi, all of whom have worked very closely with me on this matter. We are talking about top people here, tough-minded public servants. And the States also met the armies of litigators employed by the tobacco industry by contracting with their own legal experts on the part of the States. Dick Scruggs from Mississippi has been in this from the start on behalf of Mississippi and other States. Professor Lawrence Tribe of Harvard has been hired by Massachusetts and other States. So we are not talking about a bunch of pushovers here who will lay down in front of the big tobacco bulldozer. These top lawyers all knew they were fighting an uphill battle. And to date, there has never been a penny paid to a litigant in this country due to a jury award. In fact, there has only been one jury award to plaintiffs in the history of the country, I believe for $750,000, and it will be 10 years before that is paid, if it is paid at all. I have been following tobacco litigation since my early days as a trial lawyer in Pittsburgh, PA, when I watched one of the greatest trial lawyers in the country, Jimmy McCardle of the law firm of McArdle, Harrington, Feeney, and McLaughlin on Prichard v. Liggett & Myers. It was a terrific battle publicized all over the world, as a matter of fact. And they lost because it is so difficult to win in these battles. But nevertheless, once we establish this document repository, it should be easier to prove cases that can go to jury and, I think, increase the chances of jury awards. These top lawyers all knew that this is uphill. I have to say, from the time that Jimmy McArdle, that great attorney, lost, everybody else has lost since him, except for the one Florida case that is on appeal. Why are these cases lost? Many legal observers have noted that American juries are very reluctant to award damages in situations where the complaining parties can be viewed as assuming a known risk. So we all have to recognize that the prevailing legal landscape has favored the companies for a long time. The 40 State attorneys general and dozens of expert lawyers, like the Castano group, did what rational people do every day in litigation in this country. They proposed to resolve their claims through a settlement. And they did achieve a resolution. But they have to have a bill passed through this Congress that is similar to what they negotiated and brings the tobacco companies back on board, albeit screaming, kicking, and shouting all the way. They brought us a proposal that settled the suits and involved massive payments and a brand new regulatory regime in return for some limited liability restrictions. These restrictions will provide an orderly mechanism for compensation payoffs and will provide the companies with financial certainty. That is exactly what this legislation should do. The bill we adopt should help resolve these claims and do so in a manner that is in the best interests of the health of the American people. So not only do I oppose amendments like these, but I think the most effective way to go about this legislation is to devise liability provisions that address the concerns of plaintiffs in a reasonable fashion. When we consider this legislation, let us keep in mind that some 40 State attorneys general and some of the leading plaintiffs' lawyers in this country have already reached judgment that a fair and rational way to proceed, the best way to proceed, is to effectuate a national settlement of these claims. Every day in our country lawsuits are settled by negotiating mutually agreeable resolutions that usually involve payments of money and with agreements to change certain behaviors. And that is exactly the theory behind the June 20 proposal and, I might add, the Hatch-Feinstein substitute amendment that we probably will bring up before this is over. So in one sense the June 20 proposal and our substitute amendment are typical. Of course, what makes this June 20 proposal and our bill atypical is this approach represents the largest settlement proposal in the history of the world; requires the largest payment of punitive damages in the history of the world; contains unprecedented regulatory authority over tobacco products; and, provides for a broad array of public health programs, including public education, tobacco cessation, and counter advertising, that is, if the tobacco companies come back on board. If they do not come back on board, many important restrictions are not going to happen and we will be immersed and mired in litigation for a long time, maybe 10 years. And then the bill on the floor, if that is the way it comes out, will likely fail dramatically as an unconstitutional piece of legislation. But if we adopt this settlement approach and can drag the companies back on board, we can achieve advertising and look-back penalties far beyond what the Constitution would allow because we would have a consent decrees and protocol contracts where the companies would voluntarily agree to waive certain rights. But to get them to do that, there has to be some incentive for them to do that, and that is some reasonable limited liability provisions. Immunity has nothing to do with it. It is limited liability we are talking about here. To just give one example, we currently have an FDA rule that is tied up in the courts. This rule bans tobacco billboard advertising within 1,000 feet from public schools. The Judiciary Committee heard first amendment experts like Floyd Abrams tell us this rule cannot withstand constitutional scrutiny. But if we adopt a bill that contains liability provisions based on the June 20th settlement model that can bring back the companies, kicking and screaming all the way, we can achieve a total ban on all outdoor billboards. This bill on the floor will not do that. But I believe before this battle is finished the final bill will accomplish that, or we just will not achieve as much public health protections as we can here. So while the FDA rule wends its way through courts--and I think there is good reason to believe it will fail--today in Florida and Mississippi, through the settlement limited liability approach, there are no tobacco billboards in those States; and soon there will be no billboards in Minnesota because the companies have agreed to stop this advertising. Without reasonable liability limitations, there is no reason for them to just cave in and agree on these matters. So there are good public policy reasons to oppose this so-called immunity amendment and favor legislation that, like mine, contains the liability limits modeled on the June 20 agreement. Now, while I respect Drs. Koop and Kessler--I had a lot to do with both of them obtaining their Federal appointments that vaulted them to such prominence--I respect them to a large degree when they are commenting on public health matters within their expertise, when it comes to matters touching on the civil litigation system, I have to rely on the judgment of experts in the field, including 40 State attorneys general and the leading plaintiffs' lawyers in this country. As you would not go to a doctor to fix your car, so you would not go to a doctor for a legal opinion. I might also add that I have tried some of these cases, too, in the past, not tobacco cases but difficult, contentious litigation. And I think I do know what I am talking about. And I do believe that I would like to see Drs. Koop and Kessler limit themselves to their expertise and not try to intrude into matters that literally they do not fully understand. As a matter of fact, in many respects they are gumming up any possibility of getting all these public health moneys that will help us solve some of these problems. To be fair, although I do not favor the underlying bill, I have to oppose this amendment. I appreciate our distinguished friend, the Senator from New Hampshire. There is no question he is thoughtful, very decent and a good Senator. I have a tremendous amount of respect for him. I just happen to disagree with him on this matter. And to be fair, although I do not favor the underlying bill, I have to oppose this amendment as well. There is simply nothing in the bill that would prohibit an individual from bringing suit against tobacco companies. There is nothing in this bill that would even reduce the amount litigants can be awarded. All that is in the bill is an $8 billion yearly cap on the amount of damages that have been awarded. If the awards amount to over $8 billion, the amount will be paid in succeeding years. So there is really no limitation on liability other than that $8 billion cap. And I have to tell you, that is not enough to get the companies back to the table or to get the companies back to voluntarily agreeing to have advertising restrictions and look-back provisions that work. In testimony before the Judiciary Committee, while defending the liability provisions of the June 20 settlement--which were even justifiably broader than the cap in the floor vehicle--Laurence H. Tribe, Tyler Professor of Law, Harvard Law School, demonstrated that liability limitations provisions are legal, constitutional, and not unique. As to his constitutional argument, he correctly asserts that the 1978 Duke Power Supreme Court case, allows Congress to alter common law rights such as the granting of punitive damages, and the capping of damages. He also pointed out that there are a slew of federal statutes that grant limited liability to different industries and entities. The proponents of this amendment who say that no industry has ever received some liability limitations are just wrong. One example of a federal liability limitation is contained in the Price Anderson Act, which places a $560 million cap on compensatory damages in suits against the nuclear industry. The purpose of this cap is to create an incentive for the development of nuclear energy. Another example is the Federal Credit Union Act, which limits damages for lost profits and pain and suffering for losses resulting in the liquidation of federal credit unions. Other examples include the Black Lung benefits program, the National Swine Flu Immunization program, the National Vaccine program, and certain provisions of both the Federal Employers Liability Act and the Jones Act. That is just mentioning a few. I wish that the liability provisions in the underlying bill mirrored the liability provisions in my bill--which is modeled on those in the freely-bargained for June 20 settlement. Without those liability provisions which were gained through tough negotiations between 40 state attorney generals and the leading trial lawyers and agreed to by the industry, the industry will not participate to the fullest extent possible in any tobacco bill program. So I must oppose both this amendment and the underlying bill because I think that the bi-partisan group of 40 state attorneys general and the leading trial lawyers in this country got it right the first time. I urge my colleagues to reject this amendment and reject the Commerce Committee bill. What we should do is pass legislation that closely models the settlement proposal brought to us last year by the 40 state attorney generals and the leading plaintiffs' lawyers in this country. Having said all that, let me just conclude with these thoughts: There is no doubt in my mind the only way this is ever going to work without 10 years of litigation--and 10 million more kids unnecessarily put at greater risk--and a decision by the courts that the bill that is currently being argued on the floor is unconstitutional, is to get back to as close to the attorneys general agreement as we can. Yes, we can add some money to that agreement. It can be higher than the $368.5 billion, but it should be a reasonable amount that gets the companies back on board. There is no guarantee by anybody that the companies are going to come back on board, but I think there is a pretty good guarantee they won't come back on board under the financial and other requirements of this particular bill, or without the incentive of having some reasonable form of limited liability. If we can't do these things in a fair and reasonable manner, then why in the world should the tobacco companies come back and voluntarily agree to pay what really involves hundreds of billions of dollars, and without some protections for them with regard to future class action suits? The industry has agreed that individual suits can be brought and brought with the aid of a document repository. With all the documents, it seems to me it would be easier to bring those individual suits. It would be easier to recover, and in my opinion, you don't need the punitive damages, because you will have a right to compensatory damages which is everything that you can possibly argue before a jury except punitive damages. I have to say, as a former trial lawyer, I never needed punitive damages to get high verdicts in the cases I tried, and I don't think these plaintiffs' lawyers that we know today who will handle the bulk of the cases in the future will have any difficulties handling compensatory damages and getting very adequate awards for their clients from here on in. Unlike Jimmy McArdle, who had the world to fight as the first litigant attorney in Prichard v. Liggett & Myers in the early 1960s, attorneys today will have everything going for them because of the tobacco settlement. This law will work if we do this right. That will be a tremendous change from what poor Jimmy McArdle had to go through in the early days of Prichard v. Liggett & Myers. I remember that case. I was watching it closely. I was hoping he would win. I felt there was little likelihood he would win in Pennsylvania at that particular time because we didn't know then what we know today about the tobacco companies, about this industry and about what this industry has done to entice children to use their products. I just have to tell you, if we keep doing what we are doing here on the floor, we will have millions more children exposed to a greater risk than they should and be exposed to during the course of the new litigation which could last for 10 years or so. Some of these children will ultimately die prematurely because of this increased risk as this litigation proceeds. What is really unfortunate is that at the end of that litigation you will find that if this bill passes--the managers' amendment in its current form--the tobacco companies will likely prevail on a number of important matters. Then, where are we? That means we would have let the American people down by passing legislation that will not work. And in the end, we would have done a lot of unnecessary harm to millions of children, and we will only have to start all over again, and we may not have a group of tobacco companies willing to deal at that time as they have with the attorneys general and plaintiffs' lawyers as we had under the June 20th proposal. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to respond to a floor speech my good friend and colleague Senator Leahy recently delivered. In that address, Senator Leahy once again brought attention to the so-called vacancy crisis that is facing our Federal Judiciary. Now, I don't blame Senator Leahy for that. After all, that is his job. He needs to press us a bit to move judges for the Clinton Administration. And indeed, we had some disconnects in the past that prevented us from holding hearings on perhaps as many judges as we would have liked. That having been said, I am pleased that Senator Leahy and I have worked out some of the kinks in the process and have worked together to ensure that qualified nominees are confirmed. Similarly, I am happy to report that I have worked over the last few months with White House Counsel Chuck Ruff to ensure that the nomination and confirmation process is a collaborative one between the White House and members of the Senate. I think it's fair to say that after a few bumpy months in which the process suffered due to inadequate consultation between the White House and some Senators, the process is now working rather smoothly. I think the progress is due to the White House's renewed commitment to good faith consultation with Senators of both parties. I also want to compliment Senator Leahy for his willingness to work with me to get hearings scheduled for nominees. Let me take a moment, however, to correct some of the pernicious myths that persist on the subject of the confirmation process. Quite simply, contrary to what you may have read in the popular press, there is no general vacancy crisis. So far this year, the Senate has confirmed 26 of President Clinton's nominees. We have confirmed a total of 62 Judges this Congress, in addition to a number of Executive branch nominees. In fact, 266 active Federal Judges, or roughly 35% of all sitting Article III judges, were appointed by this Administration. As of today there are 768 active Federal Judges. What does that number mean? It means that there are currently more sitting federal judges hearing cases than in any previous administration. In fact, since becoming Chairman, I have yet to cast a vote against a single Clinton judicial nominee. Just as a matter of comparison, at this point in the 101st and 102nd Congress when George Bush was president and Democrats controlled the Senate, there were only 711 and 716 active judges, respectively. Thus, we have 50 more sitting federal judges today than we did in 1992, yet some would have us believe that our federal courts are being overwhelmed by a tidal wave of cases. Keep in mind that the Clinton administration is on record as having stated that 63 vacancies is virtual full employment of the federal judiciary. The Administrative Office of the U.S. Courts lists the current number of federal judicial vacancies as 76, a far cry from the ``nearly 100'' I have heard some claim. In fact, by the administration's own admission we are 13 judges away from a fully employed federal judiciary. Which begs the question: if we are only 13 judges away from full employment how can we be mired in a vacancy crisis? Only 13 judges out of 843 authorized--I think it is time to put the vacancy crisis argument to rest. Moreover, let's compare today's vacancy level of 76, with those that existed during the early 1990's when the Democratic and Republican parties' fortunes were reversed. In May of 1991, there were 148 federal judicial vacancies. One year later, in May of 1992, there were 117 federal judicial vacancies. I remember those years. I don't, however, remember one comment about it in the media. I don't recall one television show mentioning it. I don't recall one writer writing about it. Nobody seemed to care. Nobody, that is, except the Chief Justice of the United States, William Rehnquist. Back then, in his year-end report, he called upon the Democratically controlled Senate to confirm more judges, much like he did this past year. Yet no one seemed too concerned about the Chief Justice's comments back then. Now, when we have a Democrat in the White House, all of a sudden it has become a crisis when we have virtually half the vacancies today that we had in 1991. And it becomes a crisis even though the Chief Justice's message is virtually the same now as it was back then. I also think it important to note that at the end of the Bush Administration, there were 115 vacancies, for which 55 nominees were pending before the Judiciary committee. None of those 55 nominees even received the courtesy of a hearing, however. Compare this to the 65 vacancies remaining at the end of President Clinton's first term. I think there is quite a difference. Some have mentioned a deliberate effort among Republican members of the Senate to unduly delay the confirmation of Judicial nominees. Nothing could be further from the truth. The judiciary committee has in fact processed nominees at a remarkably fast pace this session. Of the 25 nominees currently pending in the Judiciary committee without a hearing, 10 were received since April. Today, there are only 5 nominees pending on the Senate Floor, and I expect that we will vote on their confirmations before the session ends. A good deal has been said by critics with regard to the vacancies on the Second and Ninth Circuits. It is true that these two circuits have had unusual difficulties. It should be mentioned, however, that nominations to the Ninth Circuit were held up to decide whether the Circuit should be split or not. Now that a commission is in place to study that issue, we have been able to move a number of Ninth Circuit nominations. In fact, we have confirmed more judges to the Ninth Circuit --three--than to any other circuit. Of the five Ninth Circuit judges still pending in the Senate, two have had hearings and one is pending on the floor. We received two of the other nominees only this session. And there are still vacancies remaining on that circuit--two vacancies of which have not even received a nominees. And one of those vacancies has been open since December of 1996. This represents a failure not on the part of the Judiciary Committee but on the Clinton Administration. President Clinton's failure to nominate judges expeditiously has in fact slowed the process, as the committee is left with an increasingly smaller base of qualified nominees to hold hearings on. In fact, fewer than half of the current vacancies have nominees pending, with many of those having incomplete paperwork. Rather than succumbing to the petulance of finger pointing, we all would be better served by an administration committed to sending us qualified nominees as expeditiously as possible. Now, we also acknowledge that there have been problems with confirming nominees to the Second Circuit, but we have made a strong effort to ameliorate them. Unfortunately an unexpected illnesses have taken their toll on the Second Circuit, but we have done our part in committee. Two of the four nominees to that court are pending on the Senate floor, the other two recently had a hearing, and I expect will be voted out of Committee on Thursday. Apparently, President Clinton has not shared this sense of urgency with regard to the Second Circuit. In fact, of the five current vacancies on that court, one sat without a nominee for almost two years, another did not receive a nominee for over ten months, and the other waited just over eight months to receive a nominee. Most disturbing of all is the seat vacated by Senior Judge Jon Newman, vacant since July 1, 1997, which is yet to receive a nominee. As I have stated so often before, I'm a pretty good chairman of the Judiciary Committee, but I can't get judges confirmed that have not been nominated. Now, while the debate about vacancy rates on our federal courts is not unimportant, it remains more important that the Senate perform its advice and consent function thoroughly and responsibly. Federal judges serve for life and perform an important constitutional function, without direct political accountability to the people. Accordingly, the Senate should never move too quickly on nominations before it. Just this past year we saw two examples of what can happen when we try to move nominations along perhaps too quickly. In one instance, a nominee for a federal district court was reported out of the Judiciary Committee before all the details of her record as a state trial judge were known. As it happens, the District Attorney in the nominee's city, who happened to be of her party, and the district attorneys' association in her home state all publicly opposed the nomination, setting forth facts demonstrating a very serious anti-prosecution bias in her judicial record. It's cases like these that underscore the importance of proceeding very deliberately with nominations for these most important life-tenured positions. Let me make an important point here: federal judges should not be confirmed simply as part of a numbers game to reduce the vacancy rate to a particular level. While I plan to continue to oversee a fair and principled confirmation process, as I always have, I want to emphasize that the primary criteria in this process is not how many vacancies need to be filled, but whether President Clinton's nominees are qualified to serve on the bench, and will not, upon receiving their judicial commission, spend a lifetime career rendering politically motivated, activist decisions. The Senate has an obligation to the American people thoroughly to review the records of the nominees it receives to ensure that they are capable and qualified to serve as federal judges, and as part of that assessment of qualification, to ensure that nominees properly understand the limitations of the judicial role. Clearly, I believe the Committee has done its part. I hope to continue to work with the Administration and with Senator Leahy to ensure that qualified individuals will serve on the federal bench.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that I be privileged to follow the distinguished Senator from Rhode Island.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to rise today along with my good friend and colleague, Senator Bennett, as a cosponsor of the Arches National Park Expansion Act of 1998. This is an inexpensive, practical, common-sense proposal that has gathered widespread support. Arches National Park is known world-wide for its spectacular canyons and rock formations. When Arches National Park was created 25 years ago, the park boundaries were set with little regard to naturally occurring borders. Specifically, Lost Springs Canyon, located in the northeast corner of the park, was divided in half by the park boundaries. Mr. President, this worthwhile legislation would expand the boundaries of the park by approximately 3,140 acres, incorporating the Lost Spring Canyon. The new, expanded boundary would better follow the natural borders dictated by the position of the canyon rim rather than the section lines and manmade features. Adding Lost Spring Canyon to the 73,400 acres already included in Arches National Park would bring a variety of new arches, balanced rocks, spires, and other geologic features under park protection and management. The addition of Lost Spring Canyon would also include the option of a ``back-country'' experience in Arches National Park. The widespread support this bill enjoys is the result of careful efforts to balance competing interests. The Utah School Trust, the Grand Canyon Trust, the National Parks and Conservation Association, and the National Park Services have voiced support for the proposed bill. Local officials, interest groups, and a majority of the residents of Grand County have been consulted for input and are also supportive of the boundary change. Again, I am pleased to cosponsor the Arches National Park Expansion Act of 1998. I urge my colleagues to support this important legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to rise today along with my good friend and colleague, Senator Bennett, as a cosponsor of the Arches National Park Expansion Act of 1998. This is an inexpensive, practical, common-sense proposal that has gathered widespread support. Arches National Park is known world-wide for its spectacular canyons and rock formations. When Arches National Park was created 25 years ago, the park boundaries were set with little regard to naturally occurring borders. Specifically, Lost Springs Canyon, located in the northeast corner of the park, was divided in half by the park boundaries. Mr. President, this worthwhile legislation would expand the boundaries of the park by approximately 3,140 acres, incorporating the Lost Spring Canyon. The new, expanded boundary would better follow the natural borders dictated by the position of the canyon rim rather than the section lines and manmade features. Adding Lost Spring Canyon to the 73,400 acres already included in Arches National Park would bring a variety of new arches, balanced rocks, spires, and other geologic features under park protection and management. The addition of Lost Spring Canyon would also include the option of a ``back-country'' experience in Arches National Park. The widespread support this bill enjoys is the result of careful efforts to balance competing interests. The Utah School Trust, the Grand Canyon Trust, the National Parks and Conservation Association, and the National Park Services have voiced support for the proposed bill. Local officials, interest groups, and a majority of the residents of Grand County have been consulted for input and are also supportive of the boundary change. Again, I am pleased to cosponsor the Arches National Park Expansion Act of 1998. I urge my colleagues to support this important legislation.

Mr. HATCH

Mr. HATCH. I think the Senator is aware, is he not, that there has to be a way to pay for the program? If you don't have the voluntary consent of the companies, albeit kicking and screaming, then how do you make the bill constitutional in the end? Is the Senator aware of that?

Mr. HATCH. There is no doubt in my mind that they are not going to continue unless we get this into some reasonable posture. Is the Senator aware that many people lost their breath when they first heard of $368.5 billion as the settlement figure given last June 20 by the attorneys general, the Castano group and the tobacco companies? They were astounded. Is the Senator aware of that?

Mr. HATCH. He is not alone. I venture to say that any constitutional expert who tries to contradict what these gentlemen have said is going to be in severe jeopardy of losing his or her reputation. Is the Senator aware that this whole push to raise the cost, to pile on, that basically knocks the tobacco companies out of the equation, to pile on--which is what is happening in this bill and what certainly would be extended by the amendment of the distinguished Senator from Massachusetts--that that basically knocks the tobacco companies out?

Mr. HATCH. They have said----

Mr. HATCH. Am I entitled to speak? I don't think it will be too much longer. But I would like to go through my questions. I am not intending to delay here. This is a very large bill, perhaps the largest the Senate has ever considered, at least in recent memory. We need to question its full impact as we proceed. That is the right way to make policy on such an important issue.

Mr. HATCH. I have to admit that I don't appreciate some of the colloquies that have gone on before, but Senators have a right to do so. This is too important an issue for the American public. We need to look at the real facts on such important legislation. We are not just trying to run any bill through because some people want to. I think this legislation deserves debate. We are talking about price levels that will amount to huge tax increases for some American people. We are talking a bill which does not have the cooperation of the tobacco companies, thus raising serious constitutional questions. (End of earliest proceedings.)

Mr. HATCH. I say that the distinguished Senator from Arizona may not appreciate this colloquy.

Mr. HATCH. Will the Senator please ask unanimous consent that the colloquy not be interrupted?

Mr. HATCH. If I could continue----