Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce a bill that will help provide for greater consumer choice and competition in television services, the Copyright Compulsory License Improvement Act of 1998. Joining me in introducing this bill are my colleagues Senators Leahy and Kohl. The options consumers have for viewing television entertainment have vastly increased since that fateful day in September 1927 when television inventor and Utah native Philo T. Farnsworth, together with his wife and colleagues, viewed the first television transmission in the Farnsworth's home workshop: a single black line rotated from vertical to horizontal. Both the forms of entertainment and the technologies for delivering that entertainment have proliferated over the 70 years since that day. In the 1940s and 50s, televisions began arriving in an increasing number of homes to pick up entertainment being broadcast into a growing number of cities and towns. In the late 60s and early 70s, cable television began offering communities more television choices by initially providing community antenna system of receiving broadcast television signals, and later by offering new created-for-cable entertainment. The development of cable television made dramatic strides with the enactment of the cable compulsory license in 1976, providing an efficient way of clearing copyright rights for the retransmission of broadcast signals over cable systems. In the 1980s, television viewers began to be able to receive television entertainment with their own home satellite equipment, and the enactment of the Satellite Home Viewer Act in 1988 helped develop a system of providing options for television service to Americans who lived in areas too remote to receive television signals over the air or via cable. Much has changed since the original Satellite Home Viewer Act was adopted in 1988. The Satellite Home Viewer Act was originally intended to ensure that households that could not get television in any other way, traditionally provided through broadcast or cable, would be able to get television signals via satellite. The market and the satellite industry has changed substantially since 1988. Many of the difficulties and controversies associated with the satellite license have been at least partly a product of the satellite business attempting to move from a predominately need-based rural niche service to a full service video delivery competitor in all markets, urban and rural. Now, many market advocates both in and out of Congress are looking to satellite carriers to compete directly with cable companies for viewership, because we believe that an increasingly competitive market is better for consumers both in terms of cost and the diversity of programming available. The bill I introduce today will move us toward that kind of robust competition. The bill I introduce today is focused on changes that we can make this year to move the satellite television industry to the next level, making it a full competitor in the multi-channel video delivery market. It has been said time and again that a major, and perhaps the biggest, impediment to satellite's ability to be a strong competitor to cable is its current inability to provide local broadcast signals. (See, e.g., Business Week (22 Dec. 1997) p. 84.) This problem has been partly technological and partly legal. Today, with this bill, we hope to begin removing the legal impediments to use of the emerging technology that will make local retransmission of broadcast signals a reality. This is a forward-looking bill which will create an incentive for companies to develop the means by which to provide local programming to local markets over satellite systems. In the next few years, if we make these legal changes, the satellite industry should be able to offer television viewers their own local programming of news, weather, sports, and entertainment, with digital quality picture and sound. This will mean that viewers in the remoter areas of my large home state of Utah will be able to watch television programming originating in Salt Lake City, rather than New York or California. Utahns in remote areas will have access to local weather and other locally and regionally relevant information. And, most important to all the constituents of my colleagues is that they will finally have a choice for full service multi-channel video programming: They will be able to choose cable or one of a number of satellite carriers. This should foster an environment of proliferating choice and lowered prices, all to the benefit of consumers, our constituents. To that end, the ``Copyright Compulsory License Improvement Act'' makes the following changes to the Satellite Home Viewers Act: It makes the satellite compulsory license permanent, just like the cable compulsory license. Under the current law the satellite license will sunset next year. It allows satellite carriers to retransmit a local television station to households within that station's local market, just like cable does, and sets a zero copyright rate for providing this service. It allows consumers to switch from cable to satellite service for network signals without the waiting period now required in the law. It reforms the current structure of the administrative body which determines rates and distributions applicable to all copyright compulsory licenses to make it more efficient and less expensive for the parties, as well as more technically expert. It creates substantial regulatory parity between the industries, including must-carry rules, retransmission consent requirements, network non-duplication, syndicated exclusivity, and sports blackout restrictions. These regulations will be phased in over a period of time in which the Federal Communications Commission can carefully consider and tailor their implementation. During that time, the portions of the satellite compulsory license which determine who is eligible to receive network and superstation signals from satellite carriers will continue to apply as they do now. Mr. President, this is a forward-looking bill that establishes the environment in which there can be more vigorous and fair competition in the video delivery market. But it is constructed to be practical in the realm of achievable legislation. Let me make clear that this bill is carefully balanced to ensure competition. It will do much to put the satellite industry on a more equal footing with its competitors and other market actors, both in terms of its benefits and responsibilities. Mr. President, let me briefly mention an issue that I think is important to touch on briefly at introduction. I am aware that there is currently controversy and even litigation over some issues relating to compliance with restrictions in the law as it is now written regarding satellite carriers providing network service. Let me make it clear that the introduction of this bill is but the beginning of a process. I would hope that this beginning is not interpreted by anyone as a license to disregard the law as it is now constituted in hopes of any future changes in the law. Our debates and discussions need to be fair and frank, and that process is not helped by abuse or disregard for current law. I would expect full compliance with and application of current law regarding the restrictions on eligibility for distant network signals or any other provisions in current law until such time as changes in the law are actually made. Having said that, I welcome and urge my colleagues and all interested parties to join in a constructive discussion of this very important legislation. I recognize that we may be able improve this bill before final passage, but I believe the essential balance of this bill is necessary to making it achievable now. I commend it to my colleagues for their consideration and look forward to working with them to help hasten more vigorous competition in the television delivery market and the ever-widening consumer choice that will follow it. I ask unanimous consent that the bill and an explanatory section-by- section analysis be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce a bill that will help provide for greater consumer choice and competition in television services, the Copyright Compulsory License Improvement Act of 1998. Joining me in introducing this bill are my colleagues Senators Leahy and Kohl. The options consumers have for viewing television entertainment have vastly increased since that fateful day in September 1927 when television inventor and Utah native Philo T. Farnsworth, together with his wife and colleagues, viewed the first television transmission in the Farnsworth's home workshop: a single black line rotated from vertical to horizontal. Both the forms of entertainment and the technologies for delivering that entertainment have proliferated over the 70 years since that day. In the 1940s and 50s, televisions began arriving in an increasing number of homes to pick up entertainment being broadcast into a growing number of cities and towns. In the late 60s and early 70s, cable television began offering communities more television choices by initially providing community antenna system of receiving broadcast television signals, and later by offering new created-for-cable entertainment. The development of cable television made dramatic strides with the enactment of the cable compulsory license in 1976, providing an efficient way of clearing copyright rights for the retransmission of broadcast signals over cable systems. In the 1980s, television viewers began to be able to receive television entertainment with their own home satellite equipment, and the enactment of the Satellite Home Viewer Act in 1988 helped develop a system of providing options for television service to Americans who lived in areas too remote to receive television signals over the air or via cable. Much has changed since the original Satellite Home Viewer Act was adopted in 1988. The Satellite Home Viewer Act was originally intended to ensure that households that could not get television in any other way, traditionally provided through broadcast or cable, would be able to get television signals via satellite. The market and the satellite industry has changed substantially since 1988. Many of the difficulties and controversies associated with the satellite license have been at least partly a product of the satellite business attempting to move from a predominately need-based rural niche service to a full service video delivery competitor in all markets, urban and rural. Now, many market advocates both in and out of Congress are looking to satellite carriers to compete directly with cable companies for viewership, because we believe that an increasingly competitive market is better for consumers both in terms of cost and the diversity of programming available. The bill I introduce today will move us toward that kind of robust competition. The bill I introduce today is focused on changes that we can make this year to move the satellite television industry to the next level, making it a full competitor in the multi-channel video delivery market. It has been said time and again that a major, and perhaps the biggest, impediment to satellite's ability to be a strong competitor to cable is its current inability to provide local broadcast signals. (See, e.g., Business Week (22 Dec. 1997) p. 84.) This problem has been partly technological and partly legal. Today, with this bill, we hope to begin removing the legal impediments to use of the emerging technology that will make local retransmission of broadcast signals a reality. This is a forward-looking bill which will create an incentive for companies to develop the means by which to provide local programming to local markets over satellite systems. In the next few years, if we make these legal changes, the satellite industry should be able to offer television viewers their own local programming of news, weather, sports, and entertainment, with digital quality picture and sound. This will mean that viewers in the remoter areas of my large home state of Utah will be able to watch television programming originating in Salt Lake City, rather than New York or California. Utahns in remote areas will have access to local weather and other locally and regionally relevant information. And, most important to all the constituents of my colleagues is that they will finally have a choice for full service multi-channel video programming: They will be able to choose cable or one of a number of satellite carriers. This should foster an environment of proliferating choice and lowered prices, all to the benefit of consumers, our constituents. To that end, the ``Copyright Compulsory License Improvement Act'' makes the following changes to the Satellite Home Viewers Act: It makes the satellite compulsory license permanent, just like the cable compulsory license. Under the current law the satellite license will sunset next year. It allows satellite carriers to retransmit a local television station to households within that station's local market, just like cable does, and sets a zero copyright rate for providing this service. It allows consumers to switch from cable to satellite service for network signals without the waiting period now required in the law. It reforms the current structure of the administrative body which determines rates and distributions applicable to all copyright compulsory licenses to make it more efficient and less expensive for the parties, as well as more technically expert. It creates substantial regulatory parity between the industries, including must-carry rules, retransmission consent requirements, network non-duplication, syndicated exclusivity, and sports blackout restrictions. These regulations will be phased in over a period of time in which the Federal Communications Commission can carefully consider and tailor their implementation. During that time, the portions of the satellite compulsory license which determine who is eligible to receive network and superstation signals from satellite carriers will continue to apply as they do now. Mr. President, this is a forward-looking bill that establishes the environment in which there can be more vigorous and fair competition in the video delivery market. But it is constructed to be practical in the realm of achievable legislation. Let me make clear that this bill is carefully balanced to ensure competition. It will do much to put the satellite industry on a more equal footing with its competitors and other market actors, both in terms of its benefits and responsibilities. Mr. President, let me briefly mention an issue that I think is important to touch on briefly at introduction. I am aware that there is currently controversy and even litigation over some issues relating to compliance with restrictions in the law as it is now written regarding satellite carriers providing network service. Let me make it clear that the introduction of this bill is but the beginning of a process. I would hope that this beginning is not interpreted by anyone as a license to disregard the law as it is now constituted in hopes of any future changes in the law. Our debates and discussions need to be fair and frank, and that process is not helped by abuse or disregard for current law. I would expect full compliance with and application of current law regarding the restrictions on eligibility for distant network signals or any other provisions in current law until such time as changes in the law are actually made. Having said that, I welcome and urge my colleagues and all interested parties to join in a constructive discussion of this very important legislation. I recognize that we may be able improve this bill before final passage, but I believe the essential balance of this bill is necessary to making it achievable now. I commend it to my colleagues for their consideration and look forward to working with them to help hasten more vigorous competition in the television delivery market and the ever-widening consumer choice that will follow it. I ask unanimous consent that the bill and an explanatory section-by- section analysis be printed in the Record.

Mr. HATCH

Mr. HATCH. I thank my colleague. Over thirty years ago, the U.S. Senate passed the Civil Rights Act of 1964. It was historic legislation, and its supporters showed great moral courage in seeing it through. The principle underlying that Act was equal treatment: The federal government should treat all persons equally, regardless of their race, color, national origin or sex. Indeed, it should mandate equal treatment from employers, labor unions, providers of public accommodation as well as many others. Now, Contrary to popular mythology, however, the Senate was not ahead of the moral curve when it passed the 1964 Act. Polls taken at the time show that a majority of Americans supported the legislation. Indeed, they continue to support it. They know that its principle is fundamental. The United States government has no business making distinctions based on skin color or sex. Period. But there were many vocal opponents too. It is important to give credit to the members of the Senate who resisted those opponents by passing the legislation. Somewhere over the course of the last generation, the federal government started to fall away from the 1964 Act's fundamental principle. In the name of ``affirmative action,'' is substituted a policy of preference based on race and sex for the policy of equal treatment. And that is why the term ``affirmative action'' sometimes has a bad connotation. The fact is, affirmative action calls for outreach, job training, education--those type of things I think everybody is for, and certainly I am for. I have no doubt that the supporters of preferences were--and still are--well meaning. They wanted to do something about this country's very real history of racial and gender inequity. But the policy they created stood the color- and gender-blind principle of the 1964 Civil Rights Act on its head. I believe that it was a serious error to compromise one of our most fundamental principles. Despite assurances from preference supporters that these programs will be only temporary--lasting for a few years at most--preference programs now permeate the Federal Government. Rather than withering away, they are showing a remarkable tendency to expand. New programs are added. New groups demand to be included. Under one program, preferences are now available to no less than forty ethnic groups. Each time such an expansion occurs, we become less like the color- and gender-blind country that we aspire to be and more like those countries where an ethnic spoils system has been a way of life for centuries. Who would have thought it would be so difficult for the Federal Government to reclaim the moral high ground? The public has never supported preferences. They have been demanding a return to equal treatment since preferences were first implemented. But the Federal Government's decision to compromise its principles has proven to be habit forming. Despite the public's support for a return to equal treatment, many of our Nation's leaders have refused to stand up for principle. Even the most indefensible programs are tough to eliminate. ISTEA mandates that ``not less than 10 percent'' of Federal highways and transit funds be allocated to ``disadvantaged business enterprises,'' which firms owned by designated minority groups are presumed to be. It is a set-aside, pure and simple. Now, I might add here that these so-called disadvantaged business enterprises need not be actually disadvantaged. Minority business owners who qualify for this program need not be poor or even middle class. The secret about this program is that, like many racial and gender preference programs, its beneficiaries are quite often wealthy. It is worse than no help for those--of all races and ethnicities--who could really use a helping hand. Such programs lull the good people of this Nation into believing that something's being done when in fact little or nothing is being done to help out those who really need the help. If any set-aside program ought to be eliminated, this should be the one. It is the very same program confronted by the Supreme Court in the 1995 landmark case, Adarand Constructors v. Pena. At that time, the Court laid down a standard of strict scrutiny for this program and others like it. Under such a standard, the program is unconstitutional unless the federal government can demonstrate a compelling purpose and has offered a solution that is narrowly tailored to serve that purpose. It's a tough standard meet, but it's the standard our Constitution demands. Last year, on remand, the District Court in Colorado applied the strict scrutiny standard and found this program to be wanting. The Court therefore held the program to be unconstitutional. That was after the Supreme Court had remanded it to the court to determine whether it deserved to see the light of day and the District court of Colorado in applying the scrutiny standard found this program to be unconstitutional. That decision was no fluke. Since the Supreme Court's decision in Adarand, set aside programs have been consistently found to be unconstitutional by the federal courts. Yet, the bill being considered by the Senate blithely reauthorizes the program. In doing so, it ignores our responsibility to bring the program into compliance with the Constitution. That is a responsibility we cannot shirk. The United States Senate is now seriously behind the moral curve on this issue. The public supports a return to principle. The courts are demanding it. The proposed amendment can do that. It eliminates set- asides based on race and sex and substitutes a non-discriminatory program of assistance for ``emerging business enterprises,'' something that most of us can agree on. It will help put us back on the right road. I urge you to support it. Now, if you want the litany of the forty ethnic groups, here it is: African Americans, Hispanic Americans, Native Americans--including American Indians, Eskimos, Aleuts and Native Hawaiians), Asian-Pacific Americans--including persons from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China, Taiwan, Laos, Cambodia, Vietnam, Korea, the Phillipines, the Republic of Palau, the Marshall Islands, Micronesia, the Northern Mariana Islands, Guam, Samoa, Macao, Hong Kong, Fiji, Tonga, Kiribati, Tuvalu, and Nauru, and Subcontinent Asian Americans--including persons from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldive Islands and Nepal. Just think about that. What we are doing is creating all kinds of special interest groups who are vying for these programs and, in the end, the wealthy are getting them anyway. But if we have the amendment of the distinguished Senator from Kentucky, we will be providing an opportunity for those truly emerging businesses that are disadvantaged. To me, I see a tremendous difference between the language in the bill and the language proposed by the Senator from Kentucky, and I think the language proposed by the Senator from Kentucky is constitutional, where the language in the bill is unconstitutional. I yield the floor. Mr. McCONNELL addressed the Chair.

Mr. HATCH. If the Senator will yield, let me just say that we are going after all of these preferential programs. This is the first of the 160. We may have to do them one by one, because it is very difficult to even get an all-embracing bill up. But whether we go after them one by one or en bloc, it is important that we go after them. If we allow them to go on, we will be violating one of the basic principles of the Constitution--that is, treating people equally. We will be violating the actual, legitimate, straightforward language of the Constitution and the 1964 Civil Rights Act, which provide equal opportunity for all, not for a select few. Now, with regard to this particular bill, I want to compliment my dear friend from Rhode Island and my friend from Montana, the two distinguished Senators, because they have carried what is a very difficult bill all the way to this position. I am not here to give them a rough time, but I do think that it's time that we do something about these unconstitutional set-asides and preferences. Whether we do it individually, each of the 160 programs, or whether we do it en bloc, it's time to try and set the record straight with regard to how these funds should be used. Now, if the distinguished Senator from Kentucky were asking to prevent disadvantaged businesses from benefiting from these funds, I probably would part company with him. But he has a specific provision in here that would help emerging new business enterprises that otherwise might have difficulty competing to obtain some of this money. I heard one of our colleagues talk about various companies--I think it was the Senator from Minnesota--he talked about companies owned by minorities and women who literally deserve a right to compete because they are very competent and very good. Well, if they are very competent and good and they can compete, then they ought to compete for this work on the same terms and conditions as anybody else. We should not be opening up a loophole here where companies that are very capable of competing have an absolute set-aside so they don't have to compete. I think that is what the Senator from Kentucky is doing. As far as I am concerned, I think we ought to go after these programs and straighten them out so they are not lacking in constitutionality--one at a time, or 10 at a time, or 160 at a time. Ultimately, I think we will probably vote on a full en bloc amendment. Until then, let's make these bills as constitutional as we can.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to welcome to the United States Dr. Kamil Idris, the Director General of the World Intellectual Property Organization (WIPO). As many of my colleagues know, Dr. Idris was elected Director General in November 1997, succeeding Dr. Arpad Bogsch, who served in that capacity for 25 years. As Director General, Dr. Idris is responsible for overseeing WIPO's strong efforts in promoting intellectual property protection across the globe. Dr. Idris has had a long and distinguished diplomatic career on behalf of his native Sudan. He is particularly well-known in international intellectual property circles through his 16 years of effective service to WIPO, most recently as Deputy Director General. I was pleased to visit with Dr. Idris informally shortly after his election as Director General and once again wish him success in his new position. I would note that Dr. Idris is taking the helm of WIPO at a critical juncture in the evolution of international intellectual property protection. Nations throughout the world will look to his leadership in promoting a global fabric of intellectual property protection in the ever-explosive digital age. The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, both signed in Geneva in December 1996, are important components of that fabric. The United States has an opportunity to set standards for the world to follow by ratifying and implementing these treaties in a timely fashion. I have joined with my colleagues Senator Leahy, Senator Thompson, and Senator Kohl to introduce legislation to do just that. I look forward to Dr. Idris' support of similar efforts to implement these treaties in an effective manner in the remainder of the WIPO member countries. Dr. Idris' visit today marks his first official visit to the United States. He will be accompanied by the Commissioner of Patents and Trademarks, Bruce Lehman, who will join Dr. Idris in meetings with the Secretary of Commerce and other agency officials who play important roles in safeguarding and promoting American ingenuity. Dr. Idris will also have the opportunity to meet with many of the leaders of our creative sectors, among them the pharmaceutical, motion picture, software, information technology, broadcasting, publishing, and recording industries. Each of these industries depend on the work of WIPO to assist them in securing effective protection for their intellectual property in the international marketplace. I am pleased that Dr. Idris has made this important visit. I am sure I am joined by my colleagues in welcoming him today and in wishing him the best in his activities here. I look forward to continuing to work with him in a close and cooperative relationship.

Mr. HATCH

Mr. HATCH. Mr. President, my good friend and colleague Mr. Coble, the Chairman of the House Judiciary Intellectual Property Subcommittee introduced in the House today the Copyright Compulsory License Improvement Act. I had intended to introduce similar legislation in the Senate today, but have decided to allow some of my colleagues on the Judiciary Committee time to review this important legislation and join me in presenting legislation to the Senate. Let me first thank Mr. Coble for his leadership in this area. He and his staff have worked tirelessly to develop the bill he introduced today. It is legislation that will set the stage for increased competition in the multi-channel video delivery market, and that means greater viewer choice in getting television. It is always a pleasure to work with Chairman Coble, and I look forward to working with him as we perfect this legislation and move it to enactment. I have also worked with the ranking member of the Senate Judiciary Committee, Senator Leahy, who has provided valuable input into the Senate legislation. I must also acknowledge the input of the Register of Copyrights and Copyright Office staff. They worked along with congressional staff in creating this legislation. Let me say that I believe the legislation that Chairman Coble and I have worked on effectively balances the various interests affected by the legislation. While I look forward to perfecting the legislation, I expect it to undergo revision as it moves through the process, I believe that the essential balance must be maintained for this legislation to move this year. And it is important that we enact legislation this year allowing satellite carriers to provide local carriage of broadcast signals within a broadcaster's local market. No reform is more important to making satellite competitive with cable for the long term. I believe the other reforms also set the stage for vigorous competition between satellite and cable, with adequate protections for the other interested parties whose works are delivered by them to viewers, which should result in lower prices and increased choices for viewers. This is important legislation for all of our constituents, but particularly for those in states with rural or mountainous areas such as my home state of Utah. I hope my colleagues will help work to enact these reforms this year so that the next generation of satellite television delivery can become a reality in the very near future. I welcome input from all interested parties and my colleagues. And I look forward to introducing a companion to Mr. Coble's bill when we return from our President's Day recess.

Mr. HATCH

Mr. HATCH. I yield 10 minutes to the distinguished Senator from California. If my colleague would prefer to control the time on his side, I would be happy--should I yield to the Senator?

Mr. HATCH. Mr. President, I rise today to support the nomination of Margaret Morrow to the Federal District bench in California. Ms. Morrow enjoys broad bipartisan support, and it is no wonder. She graduated magna cum laude from Bryn Mawr College, and cum laude from the Harvard Law School. She is presently a partner at Arnold and Porter in their Los Angeles office where she handles virtually all of that office's appellate litigation. I plan to outline in greater detail why I intend to support Ms. Morrow's nomination. But first I would like to discuss the Judiciary Committee's record with respect to the confirmation of President Clinton's judicial nominees. As chairman of the Senate Judiciary Committee, one of the most important duties I fulfill is in screening judicial nominees. Indeed, the Constitution itself obligates the Senate to provide the President advice concerning his nominees, and to consent to their ultimate confirmation. Although some have complained about the pace at which the committee has moved on judicial nominees, I note that it has undertaken its duty in a deliberate and serious fashion. Indeed, with respect to Ms. Morrow, there were concerns. Her answers to the committee were not entirely responsive. Rather than simply pushing the nomination forward, however, I believed it was important for the committee to ensure that its questions were properly answered. Thus, the committee submitted written questions for Ms. Morrow to clarify some of her additional responses. And, having reviewed Ms. Morrow's answers to the questions posed by the committee, I became satisfied that she would uphold the Constitution and abide by the rule of law. In fact, we held two hearings in Margaret Morrow's case, as I recall, and the second hearing was, of course, to clarify some of these issues without which we might not have had Ms. Morrow's nomination up even to this day. Thus, I think it fair to say that the committee has fairly and responsibly dealt with the President's nominees. Indeed, the Judiciary Committee has already held a judicial confirmation hearing, and has another planned for February 25. Thus, the committee will have held two nomination hearings in the first month of the session. I note that Judiciary Committee processed 47 of the President's nominees last session, including Ms. Morrow. Today there are more sitting judges than there were throughout virtually all of the Reagan and Bush administrations. Currently, there are 756 active Federal judges. In addition, there are 432 senior Federal judges who must by law continue to hear cases. Even in the ninth circuit, which has 10 vacancies, only one judge has actually stopped hearing cases. The others have taken senior status, and are still actively participating in that court's work. I am saying that the other nine judges have taken senior status. Those who have retired, or those who have taken senior status, are still hearing cases. The total pool of Federal judges available to hear cases is 1,188, a near record number. I have sought to steer the confirmation process in a way that kept it a fair and a principled one, and exercised what I felt was the appropriate degree of deference to the President's judicial appointees. I would like to personally express my gratitude and compliments to Senator Leahy, the ranking Democrat on the Judiciary Committee, for his cooperative efforts this past year. In fact, I would like my colleagues to note that a portrait of Senator Leahy will be unveiled this very evening in the Agriculture Committee hearing room. This is an honor that I believe my distinguished colleague justly deserves for his efforts on that great committee. I want Senator Leahy to know that I plan on attending that portrait unveiling itself even though this debate is taking place on the floor between 4 and 6 today. It is in this spirit of cooperation and fairness that I will vote to confirm Ms. Morrow. Conducting a fair confirmation process, however, does not mean granting the President carte blanche in filling judicial vacancies. It means assuring that those who are confirmed will uphold the Constitution and abide by the rule of law. Based upon the committee's review of her record, I believe that the evidence demonstrates that Margaret Morrow will be such a person. Ms. Morrow likely would not be my choice if I were sitting in the Oval Office. But the President is sitting there, and he has seen fit to nominate her. She has the support of the Senators from California. And the review conducted by the Judiciary Committee suggests that she understands the proper role of a judge in our Federal system and will abide by the rule of law. There is no doubt that Ms. Morrow is, in terms of her professional experience and abilities, qualified to serve as a Federal district court judge. I think the only question that may be plaguing some of my colleagues is whether she will abide by the rule of law. As I have stated elsewhere, nominees who are or who are likely to be judicial activists are not qualified to serve as Federal judges, and they should neither be nominated nor confirmed. And I want my colleagues to know that when such individuals come before the Judiciary Committee I will vociferously oppose them. In fact, many of the people that have been suggested by the administration have been stopped before they have been sent up. And that is where most of the battles occur, and that is where most of the work between the White House and myself really occurs. I have to compliment the White House in recognizing that some people that they wish they could have put on the bench were not appropriate persons to put on the bench because of their attitudes towards the rule of law primarily. While I initially had some concerns that Ms. Morrow might be an activist, I have concluded, based on all the information before the committee, that a compelling case cannot be made against her. While it is often difficult to tell whether a nominee's words before confirmation will match that nominee's deeds after confirmation, I believe that this nominee in particular deserves the benefit of the doubt. And all nominees deserve the benefit of the doubt, unless the contrary is substantial--or, should I say, less evidence to the contrary is substantial. In my view, there is not sufficient evidence to demonstrate that Ms. Morrow will engage in judicial activism. In fact, Ms. Morrow has assured the committee that she will abide by the rule of law, and will not substitute her preferences for the dictates of the Constitution. If Ms. Morrow is a woman of her word, and I believe she is, I am confident that she will serve the country with distinction. I would like briefly to address some of the questions raised by those who oppose Ms. Morrow's nomination. Perhaps the most troubling evidence of potential activism that Ms. Morrow's critics advance comes from several speeches she has given while president of the Los Angeles, CA, Bar Association. At the fourth annual Conference on Women in the Law, for example, Ms. Morrow gave a speech in which she stated that ``the law is almost by definition on the cutting edge of social thought. It is a vehicle through which we ease the transition from the rules which have always been to the rules which are to be.'' Now, if Ms. Morrow was speaking here about ``the law'' and ``rules'' in a substantive sense, I would have no choice but to read these statements as professing a belief in judicial activism. On that basis alone, I would likely have opposed her nomination. However, Ms. Morrow repeatedly and somewhat animatedly testified before the committee that she was not speaking substantively of the law itself but, rather, was referring to the legal profession and the rules by which it governs itself. When the committee went back and examined the context of Ms. Morrow's speech, it concluded that this explanation was in keeping with the theme of her speech. In her inaugural address as president of the State Bar of California on October 9, 1993, Ms. Morrow quoted then Justice William Brennan, stating that ``Justice can only endure and flourish if law and legal institutions are engines of change able to accommodate evolving patterns of life and social interaction.'' Here again some were troubled that Ms. Morrow seemed to be advocating judicial activism. Ms. Morrow, however, assured the committee that she was not suggesting that courts themselves should be engines of change. In response to the committee she testified as follows: The theme of that speech was that the State Bar of California as an institution and the legal profession had to change some of the ways we did business. The quotation regarding engines of change had nothing to do with changes in the rule of law or changes in constitutional interpretation. Once again, the committee went back and scrutinized Ms. Morrow's speech and found that its theme was in fact changes the bar should make and did not advance the theme that courts should be engines of social change. The committee found the nominee's explanation of the use of the quotation, given its context, very plausible. In addition, the nominee went to some lengths in her oral testimony and her written responses to the committee to espouse a clearly restrained approach to constitutional interpretation and the rule of the courts. Frankly, much of what she has said under oath goes a long way toward legitimized, very restrained jurisprudence that some of our colleagues on the other side of the aisle called out of the mainstream just a decade ago. For example, she testified that she would attempt to interpret the Constitution ``consistent with the intent of the drafters.'' She later explained in more detail that judges should use the constitutional text ``as a starting point, and using that language and whatever information there is respecting the intent behind that language one ought to attempt then to decide the case consistent with that intent.'' She later testified that judges should not ``by incremental changes ease the law from one arena to another in a policy sense.'' And in written correspondence with the committee, Ms. Morrow further elaborated on her constitutional jurisprudence by highlighting the case which in her view adopted the proper methodology to constitutional interpretation. As she explained, in that case the Court ``looked first to the language of the Constitution,'' then ``buttressed its reading'' of the text by ``looking to the language of other constitutional provisions.'' And finally to ``the intent of those who drafted and ratified this language as reflected in the Federalist Papers, debates of the Constitutional Convention and other writings of the time.'' Contrary to the claim that she condemns all voter initiatives, Ms. Morrow has actually sought to ensure that voters have meaningful ways of evaluating such initiatives. In a widely circulated article, Ms. Morrow noted that the intensive advertising campaigns that surround citizen initiatives often focus unfairly on the measure's sponsor rather than the initiative's substance. This made it hard, she argued, for voters to make meaningful choices and ``renders ephemeral any real hope of intelligent voting by a majority.'' Read in its proper context, this statement seized upon by Ms. Morrow's critics was a statement concerning the quality of information disseminated to the voters, not a comment on the voters' ability to make intelligent policy choices. Thus Ms. Morrow's statement is not particularly controversial but in fact highly respectful of the role voters must play in our electoral system. In fact, Ms. Morrow argued that the courts should not be placed in a position of policing the initiative process. She explained that ``having passed an initiative, the voters want to see it enacted. They view a court challenge to its validity as interference with the public will.'' For this reason, Ms. Morrow advocated reforms to the California initiative process to take a final decision on ballot measures out of the hands of judges and to place it back into the hands of the people. In supporting this nomination, I took into account a number of factors, including Ms. Morrow's testimony, her accomplishments and her evident ability as an attorney, as well as the fact that she has received strong support, bipartisan support from both Democrats and Republicans. Republicans included Ninth Circuit Judges Cynthia Hall, Steven Trott and Pamela Rymer, Reagan-Bush appointees, as well as Rob Bonner, a respected conservative, former Federal judge and head of the drug enforcement agency under President Bush. I know all of these people personally. They are all strong conservatives. They are really decent people. They are as concerned as you or I or anybody else about who we place on the Federal bench, and they are strongly in favor of Margaret Morrow, as are many, many other Republicans. And they are not just people who live within the district where she will be a judge. They are some eminent judges themselves. I have a rough time seeing why anybody basically under all these circumstances would oppose this nominee. Each of those individuals I mentioned and others, such as Richard Riordan, the Republican mayor of Los Angeles, have assured the committee that Ms. Morrow will not be a judicial activist. I hope they are correct. And at least on this point I have seen little evidence in the record that would suggest to me that she would fail to abide by the rule of law once she achieves the bench and practices on the bench and fulfills her responsibility as a judge on the bench. In sum, I support this nominee and I urge my colleagues to do the same. I am also pleased, with regard to these judicial nominees, that no one on our side has threatened to ever filibuster any of these judges, to my knowledge. I think it is a travesty if we ever start getting into a game of filibustering judges. I have to admit my colleagues on the other side attempted to do that on a number of occasions the last number of years during the Reagan-Bush years. They always backed off, but maybe they did because they realized there were not the votes to invoke cloture. But I really think it is a travesty if we treat this third branch of Government with such disregard that we filibuster judges. The only way I could ever see that happening is if a person is so absolutely unqualified to sit on the bench that the only way you could stop that person is to filibuster that nominee. Even then, I question whether that should be done. We are dealing with a coequal branch of Government. We are dealing with some of the most important nominations a President, whoever that President may be, will make. And we are also dealing with good faith on both sides of the floor. I have to say, during some of the Reagan and Bush years, I thought our colleagues on the other side were reprehensible in some of the things they did with regard to Reagan and Bush judges, but by and large the vast majority of them were put through without any real fuss or bother even though my colleagues on the other side, had they been President, would not have appointed very many of those judges. We have to show the same good faith on our side, it seems to me. And unless you have an overwhelming case, as may be the case in the nomination of Judge Massiah-Jackson, unless you have an overwhelming case, then certainly I don't see any reason for anybody filibustering judges. I hope that we never get into that. Let's make our case if we have disagreement, and I have to say that some of my colleagues disagree with this nomination, and they do it legitimately, sincerely, and I think with intelligence, but I think they are wrong. And that is after having been part of this process for 22 years now and always trying to be fair, whoever is the President of the United States and whoever the nominees are. It is important because most of the fight has to occur behind the scenes. It has to occur between honest people in the White House and honest people up here. And that's where the battles are. When they get this far, generally most of them should be approved. There are some that we have problems with still in the Judiciary Committee, but that is our job to look at them. That is our job to look into their background. It is our job to screen these candidates. And, as you can see, in the case of Massiah-Jackson we had these accusations but nobody was willing to stand up and say them. I am not about to rely on unsubstantiated accusations by anybody. I will rely on the witness herself in that case. But we never quit investigating in the committee, and even though Massiah-Jackson was passed out of the committee, the investigation continued and ultimately we find a supernumber of people, very qualified people, people in that area who have a lot to do with law and justice are now opposed to that nomination. We cannot ignore that. But that is the way the system works. We have had judges withdraw after we have approved them in the Judiciary Committee because something has come up to disturb their nomination. That is the way it should work. This is not a numbers game. These are among the most important nominations that any President can make and that the Senate can ever work on. In the case of Margaret Morrow, I personally have examined the whole record, and, like I say, maybe people on our side would not have appointed her if they were President, but they are not the President. And unless there is an overwhelming case to be made against a judge, I have a very difficult--and especially this one; there is not--I have to say that I think we do a great injustice if we do not support this nomination. So with that, I will yield the floor. How much time does the distinguished Senator need?

Mr. HATCH. Let's split the time. You control half the time, and I will control half. You can make the determination, or if you would like----

Mr. HATCH. Mr. President, as we close this debate, I would like to take just a moment to reiterate my support for Margaret Morrow. As my friend from Missouri, Senator Ashcroft, has conceded, Ms. Morrow certainly enjoys the professional qualifications to serve as a United States district court judge. Unfortunately, those who have chosen to vote against Ms. Morrow have failed to identify a single instance in the nominee's legal practice in which she has engaged in what can be considered as activism. The best the opponents to Ms. Morrow can do is take quotes from several of her speeches and read into that an activist intent. I do not believe, however, that when closely analyzed, those claims stand up. Regarding the two brief statements being used to question Ms. Morrow's propensity to engage in judicial activism, when balanced against the 20-plus-year distinguished and dedicated career, the statements are simply insufficient to determine that Ms. Morrow would be a judicial activist. The first statement attributed to Ms. Morrow that the ``law is on the cutting edge of social thought,'' when placed within its proper context and read along with the entire speech is not troubling to me. I note that the opposition did not discuss the text of that speech or the theme of the speech, because the speech itself is not controversial in any manner. In fact, the theme of the speech advocates change in the legal profession itself. The speech does not advocate judicial activism. This is why no one has mentioned any other sentence or phrase from the speech. It simply does not advocate activism. The second statement attributed to Ms. Morrow, that the law and legal institutions are engines of change, was taken from a quote by Mr. Justice Brennan. Whether you agree with Mr. Justice Brennan or not, he was one of the most substantial Justices in history. And she was quoting him. Again, the opposition has not mentioned the theme of the speech from which this quote was taken. The speech also advocated change in the legal profession, not activism in the courts. I personally believe that the profession could stand some changes in certain areas. It is not fair to this nominee or any other that her entire career and judicial philosophy be judged on the basis of a few statements, arguably very ambiguous statements. I cannot ignore the overall theme of the speeches from which these statements were taken. The speeches in no way advocated activism. They only advocated change in the legal profession. Ms. Morrow's legal career speaks for itself. She will be an asset to the Federal bench, in my opinion. Thus, when Ms. Morrow's statements are read in context, they do not paint a picture of a potential activist. Moreover, when asked by the members of the committee to explain her judicial philosophy and her approach to judging, she gave an answer with which any strict constructionist would agree. And when asked to explain whether her speeches were intended to suggest that judges should be litigating from the bench, she adamantly denied such a claim. Given her plausible explanation of these statements criticized by my good friends from the Judiciary Committee and her sworn testimony that she would uphold the Constitution and abide by the rule of law, I have to give her the benefit of the doubt and will vote to confirm her. I think and I hope my colleagues will do the same. Ordinarily, I believe that a nominee's testimony should be credited unless there is overwhelming evidence to the contrary. Here, those who oppose this nominee lack such evidence. What they are left with are snippets from some of her speeches, speeches that we are trying to divine the intent of, while lacking the evidence to think otherwise. I will credit the testimony of the nominee and her stated commitment to the rule of law. I sincerely hope that she will not disappoint me, and I believe that she is a person of integrity and one who will judge, as she has promised, in accordance with the highest standards of the judgeship profession and with the highest standards of the Constitution and the rule of law. On this basis, I support the nominee. I believe we all should support this nominee. She has had a thorough hearing and we have had many, many discussions of this. But I just don't think we should take things out of context and stop a nominee on that basis. With that, I hope our colleagues will support the nominee. Mr. President, I ask for the yeas and nays.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH

Mr. HATCH. I think that these are some of the important questions and the type of questions on which we need to have consensus before we enact legislation: -- What are the current capabilities of cloning, in animals and humans? Should we be focusing on banning a technology, or technologies, or the results of a technology. -- What should be the status of the asexually-produced totipotent cells? What is the correct definition of an embryo? For example, is it the definition used in the Report of the National Bioethics Advisory Commission--that it is ``the developing organism from the time of fertilization until significant differentiation has occurred, when the organism becomes known as a fetus''? Would that definition preclude human somatic cell transfer technology? -- What current authority does the government have with respect to techniques which might lead to cloning human beings and human tissue? -- Although there is virtual unanimity that cloning of human beings should be banned at this time, what is the appropriate type of penalty for any attempt at such an act? Should it be a criminal penalty? If so, what type? Are the criminal penalties instituted in S. 1601 the appropriate means of preventing cloned humans? -- How does the language of this bill affect the ability to do further research on whether banning somatic cell nuclear transfer technology would affect the ability of a woman with unviable eggs to conceive children? -- Precisely what types of research could--and could not--be conducted under this bill? These are important issues that deserve our full attention. All of us have family, friends and loved ones afflicted by some terrible disease. When we think about this bill we need to think about people like Nancy and Ronald Reagan as they battle against Alzheimers. We need to think about Mohammed Ali's battle against Parkinsons. We need to be sure that in locking off human cloning that we don't do so in a way that throws away the key to many other diseases. Over the past few days, we have heard very compelling, heartfelt debate about this issue. Some have expressed the belief that asexually-produced totipotent cells are, in fact, an embryo, fully deserving of the protections we accord to a human life. Others have averred that these cells are not yet a human embryo, but rather should be viewed as a very promising tool which science should be allowed to explore as we continue our quest to cure such devastating diseases as diabetes, cancer and AIDS. Both sides hold very strong moral convictions. There are extremely important implications for both. This body must explore these fundamental questions. We must consider the views of our scientific experts, ethicists, religious leaders, ethicists, and men and women of medicine. Let me also add I am very troubled that this bill should have been considered in Committee where many of the fundamental issues we have been debating can be explored in more depth, especially since S. 1601 amends Title 18 of the U.S. Code. This is obviously an important debate, one which must be continued, and therefore I will vote ``yes'' on the motion to invoke cloture. As we attempt to advance the public health, we must do so in a way that protects human life. I think we must work to craft legislation that achieves both of these goals.

Mr. HATCH. Mr. President, I rise to offer some comments on the cloning legislation that we are now debating. I think that this has been an important debate, one which should continue. It is a debate that involves many difficult, troublesome issues. I come to this debate as a concerned pro-life Senator, who also has profound questions about the scientific implications of this bill. I can tell you that scientists from my home state of Utah are following these discussions very closely. I am proud that researchers at the University of Utah and the Huntsman Cancer Center are at the cutting edge of science. It was scientists at Myriad Genetics of Salt Lake City who were co-discoverers of a gene--the BRCA 1 gene--that causes some types of breast cancer. Let me share with you a letter that I received from Dr. Ray White, the Director of the Huntsman Center. I ask for unanimous consent that the text of this letter be printed in the Record.

Mr. HATCH. I agree with Dr. White that we should try to find a way to ban cloning of human beings but do so in a way that allows, to the extent ethically proper, valuable research to continue. In these type of debates many of us value the opinion of my good friend and colleague from Tennessee, Senator Frist. As a physician he brings a unique perspective to issues of science and medicine. He is also a co-sponsor of S. 1601, the bill pending before this body. Let me also share with you a letter I sent to Senator Frist on this bill. It is a short letter which I ask unanimous consent to insert in the Record at this point:

Mr. HATCH

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

Mr. HATCH

Mr. HATCH. Madam President, I ask unanimous consent there now be a period of morning business with Senators permitted to speak up to 5 minutes each.

Mr. HATCH

Mr. HATCH. I am aware that she may have handed down some tough sentences as well.

Mr. HATCH. Mr. President, I rise today to express my strong concerns with respect to President Clinton's nominee to be a U.S. district court judge for the Eastern District of Pennsylvania--Judge Frederica Massiah-Jackson. I voted for this nominee in committee, but on the basis of information that has been presented to the committee since Judge Massiah-Jackson's hearing, I now have serious reservations about her nomination. Judge Massiah-Jackson, who currently serves as a State court trial judge in Philadelphia, was nominated by President Clinton on July 31, 1997, to serve in the Eastern District of Pennsylvania. The Judiciary Committee received her completed paperwork on August 15 and began processing her nomination around mid-September. The committee began, in bipartisan fashion, to review what available information there was on her background, her qualifications, and her experience. The committee's assessment of that information was directed from the outset to serious allegations that were leveled against Judge Massiah- Jackson. In particular, the committee's bipartisan investigative team followed up on allegations that Judge Massiah-Jackson was biased against law enforcement, that she was unduly lenient in sentencing career criminal offenders, and that she lacks proper judicial temperament, as shown with her use of profanity while sitting on the bench. Despite attempts to investigate seriously these allegations, no one was willing to come forward publicly during the initial investigation with specific and credible evidence or information showing a general bias against law enforcement. In fact, Judge Massiah-Jackson, when confronted with this allegation, had denied having such a bias. I was particularly troubled by a newspaper account reporting that Judge Massiah-Jackson had identified two undercover officers in open court and warned the spectators to watch out for them. No one, however, came forward to substantiate those charges. But the committee's investigation did unearth some very troubling information. Judge Massiah-Jackson herself admitted to using profanity at least once while sitting as a judge--she admitted to cursing at a prosecutor in open court; it was not pleasant, and the profanity was not incidental profanity--but she expressed contrition about that event. Indeed, she promised the committee that, if confirmed, she would act appropriately as a Federal district judge. Now, I take charges of intemperance from the bench seriously. Judges, by their very position, must remain above the fray. They must, by their demeanor and comportment, preside with dignity over their courtrooms and set an example for the attorneys and witnesses to follow. Nevertheless, as a former litigator, I know that in the rough and tumble world of courtroom advocacy that sometimes things can get a bit out of hand. That at least places such untoward remarks in some kind of context. Judge Massiah-Jackson assured the committee that she would conduct herself in an appropriate manner in the future, and that such mistakes as had occurred were early in her tenure on the bench and that she would never allow that to happen again. The committee's investigation also confirmed that Judge Massiah- Jackson's sentences, while not grossly out of line with those imposed by other State judges, were indeed very lenient on average. By the time the committee held a hearing on Judge Massiah-Jackson, it was clear to me that she had exercised questionable judgment in a number of cases, that she was softer on crime than I would wish a Federal judge to be, and that there were some serious questions about her ability to preside over a courtroom with the level of decorum that our citizens have the right to expect. It was clear to me, in a word, that Judge Massiah-Jackson would never be my nominee to the Federal bench. But the Constitution does not vest judicial appointment authority in the Senate. She is President Clinton's nominee. I have never viewed my advise-and-consent responsibilities as an opportunity to second-guess whoever is the President--so long as he sends us nominees who are well qualified to serve and whose views, while perhaps not my own, reflect a commitment to uphold the Constitution and abide by the rule of law. For that reason, I anticipated that the nominee's responses during her hearing would be extremely important to my own vote. To my mind, those responses would determine whether there was reason to expect that Judge Massiah-Jackson could yet be a credit to the Federal bench. During her hearing, Judge Massiah-Jackson was questioned extensively about her sentencing record in various cases, she was asked about charges she was antiprosecution, and she was asked to explain the incident in which she had cursed at prosecutors. After the hearing, members of the committee posed further questions in writing, to which she responded. In a nutshell, Judge Massiah-Jackson again apologized for her use of profanity in the courtroom and she made every effort to persuade us she has the highest respect for law enforcement and for the difficult job that police officers have to do in our country. Of particular significance to me, Judge Massiah-Jackson expressly disputed the published press report that indicated she had used her job as a State judge to expose the identities of undercover police officers--in open court, I might add--and to warn the spectators against them. In response to a written question from Senator Thurmond, she flatly denied that such an event had occurred. On the faith of those assurances and the assurances of those who knew her and know her, and while reviewing the issue very closely, I voted with a majority of my colleagues to report her nomination favorably out of the committee. I am disappointed to say that with the benefit of hindsight, information has emerged since the Judiciary Committee held its hearings on this particular nominee of President Clinton that strongly suggests to me that she was somewhat less than candid with the committee. In addition, since the committee's vote, the committee has been virtually deluged with letters from prosecutors and law enforcement agencies in Pennsylvania that document a disturbing pattern of open hostility toward the law enforcement communities. These condemnations have been bipartisan and, in some respects, overwhelming. The Pennsylvania District Attorney's Association, as well as the Philadelphia District Attorney, have come out in opposition to Massiah- Jackson, as have the Pennsylvania Attorney General, the Fraternal Order of Police and the National Association of Police Officers. That is pretty extraordinary. I don't know of any other case where that really has happened, although there may be one or more, even in my experience, but I don't remember any. Moreover, the committee has now received more details about particular rulings by Judge Massiah-Jackson that evidence an inability to deal with law enforcement issues fairly. First, let me address Judge Massiah-Jackson's possible lack of candor with the Judiciary Committee. During the committee's bipartisan investigation, Judge Massiah-Jackson was questioned about an article that appeared in the local Philadelphia newspaper in 1988 which stated that she had told spectators in the courtroom to take a good look at the undercover officers who are witnesses in the case and to watch themselves. She was asked whether the circumstances described in the article were true. Judge Massiah-Jackson told committee staff she does not recall the incident, but that she did not understand the concern about ``outing'' the officers if they had already testified. Thereafter, the committee faxed a copy of the article to Judge Massiah- Jackson and asked her to write a letter and comment about the allegations mentioned within the article. Later, the committee received a letter from the nominee that failed to make mention of the incident with the undercover police officers. Later, at her hearing before the committee, Judge Massiah-Jackson was questioned again about her alleged comments about the undercover police officers. Unfortunately, Judge Massiah-Jackson failed to answer the questions directly and instead she indicated that she respected the role of law enforcement officers. Dissatisfied by her answers both to the written questions and to the questions at the hearing, Senator Thurmond sent the nominee a follow-up question directly asking her to explain her statement to courtroom spectators to ``take a good look at the undercover officers and watch yourselves.'' In her written response, the nominee categorically denied ever having made the statement. Her written answer back to the committee was as follows: ``I have read the 1988 article and it is inaccurate. I would not and did not make any such statement to the spectators. I have great respect for law enforcement officers who have very difficult jobs and work in dangerous situations.'' In the wake of recent developments, however, committee staff, in a bipartisan investigation, was able to interview the two police officers who were mentioned in the news article. Those officers provided written statements to the committee that refute Judge Massiah-Jackson's representations and corroborate the newspaper story. Both Sergeant Rodriguez and his partner, Detective Terrace Jones, an African American, felt that the judge's statement jeopardized their lives if any of the people in the courtroom were friends, family or associates of persons with whom they might negotiate drug buys in the course of their undercover work. Although I was more than willing to credit Judge Massiah-Jackson's denial of the newspaper account, in the face of statements by the two officers and the newspaper story, her denial now appears to be somewhat less credible. I would also point out that Judge Massiah-Jackson unequivocally informed the committee during her hearing and during questioning by Senator Specter she had never been reversed on a sentencing issue. This fact was important because of concerns that Judge Massiah-Jackson was particularly bent on leniency in sentencing. In fact, nominees are routinely asked, if they are presently judges, to provide the committee all of the cases on which they were reversed. In response to the committee's request, Judge Massiah-Jackson identified 14 cases in which she had been reversed. None involved a sentencing issue. When asked a second time in writing whether there were any other cases in which she was reversed, Judge Massiah-Jackson reported one additional case. Once again, this case did not involve a sentencing issue. Since her hearing, however, the committee itself discovered that Judge Massiah-Jackson's statement that she has never been reversed on a sentencing issue is inaccurate. In fact, to date, the committee has found she has been reversed in at least two sentencing cases: Commonwealth v. Easterling and Commonwealth v. Williams. In both cases, Judge Massiah-Jackson imposed a sentence found to be too lenient by the appellate court. In Easterling, the defendant pled guilty to burglary and criminal conspiracy. Despite a serious prior criminal history, including nine prior adult property convictions and two adult armed robbery convictions, Judge Massiah-Jackson sentenced the defendant to concurrent terms of 11\1/2\ to 23 months imprisonment. Her sentence was 3 years below the standard guidelines and 1 year below even the mitigated guidelines. The Supreme Court found that the downward departure was unreasonable and vacated the sentence. In Williams, the defendant pled guilty to robbery and possession of an instrument of a crime. The defendant, in attempting to take the victim's purse, viciously slashed the victim with a razor. Despite having a prior criminal history, Judge Massiah-Jackson again sentenced the defendant to only 11\1/2\ to 23 months' imprisonment and then immediately paroled him. The superior court again held that this sentence was unreasonable--it was substantially below the minimum sentencing guidelines which required a minimum of 4 to 7 years' imprisonment for robbery with a deadly weapon. In addition to finding that Judge Massiah-Jackson had improperly lowered the defendant's offense gravity score, the superior court also found her refusal to apply a deadly weapon enhancement to the razor was clearly erroneous. The court vacated Judge Massiah-Jackson's unreasonable low sentence. In addition to these reversals for illegal sentences, I would like to provide an example of why I am so concerned about Judge Massiah- Jackson's ability to weigh the facts fairly. Recently, the committee has received numerous cases that were not previously provided by the committee. One of these cases, Commonwealth v. Smith, appears to be a particularly egregious case, and I want to tell you about it so you may assess for yourself why this nominee is perceived as being unalterably hostile to crime fighting. In the early evening of September 28, 1990, a 13-year-old boy was dragged into the bushes on the grounds of a Philadelphia hospital. The assailant raped and sodomized the boy, threatening to kill him. Despite the fact that his face was slashed with a box cutter, the boy managed to escape from his assailant's clutches. Naked and bleeding, he told two female hospital employees who were passing by what had just happened and that his attacker, a man, was still in the bushes. Shortly thereafter, hospital guards arrived and took the boy to the emergency room for treatment. The two women then saw a man crawling out of the bushes where the boy had told them the attack had occurred. They made eye contact with the man from only 2 feet away. The man jumped to his feet and turned to walk away from the crowd of security guards and bystanders. One of the women informed the guards of the man's appearance. Remember, the two women, according to the court of appeals' decision, never lost sight of the man until after he was apprehended by police just 2 minutes after they spotted him crawling out of the bushes where the young boy said he was. A Philadelphia police officer arrived on the scene within seconds of receiving a police radio call of a ``rape in progress.'' The officer stopped the man and told him he was investigating a radio call of a rape. The man said that he had not raped anyone. When the security guards and witnesses told the officer that the man had just raped a young boy, the officer handcuffed him and put him in the back of his patrol car. Moments later, another officer conducted a safety search of the man before placing him in a patrol wagon. He found a box-cutter knife like the one used to cut the boy's face and a rag still wet with blood. The defendant later confessed. Despite the overwhelming evidence in the case, Judge Massiah-Jackson held that the police officer had no probable cause to arrest the man. She suppressed the defendant's statement, the box-cutting knife, the bloody rag and the out-of-court identifications as the fruits of an illegal arrest. I am thankful to say her ruling was appealed and reversed, but I am somewhat surprised President Clinton would still nominate this judge if he was aware of this decision. It has been noted that by some that, after the case was reversed, the case was assigned to a new judge and the defendant was, I am told, acquitted. This is why it would be advisable to consider holding a hearing at which the nominee can explain her decision in this case. Frankly, notwithstanding the eventual verdict, I fail to see how one could conclude that probable cause to arrest the defendant did not exist. In recent weeks, the Judiciary Committee has received letters from virtually every law enforcement office in the State of Pennsylvania and several national organizations voicing their opposition to President Clinton's nominee. To date, we have received letters from the Attorney General of Pennsylvania, the Philadelphia National Fraternal Order of Police, the National Association of Police Organizations, the Pennsylvania District Attorneys Association, and letters by numerous district attorneys around the State, including one from Lynn Abraham, district attorney for Philadelphia, who I understand is a Democrat herself. All of these letters express opposition to this nominee's appointment because of her record of hostility to prosecutors, law enforcement and victims of crime. Now, although it certainly would have been beneficial to the committee if we had this information before Judge Massiah-Jackson's hearing, we certainly cannot turn a blind eye to the facts. We ought to just make it clear that this committee, in a bipartisan way, takes these judgeship nominations very seriously. We continue to investigate right up to the time of confirmation. We are not going to fail to look at matters when we think there may be some legitimacy to them, as may be the case here. Make no mistake, I take my floor vote on Judge Massiah-Jackson very seriously. When her candidacy was in the committee, I resolved my serious misgivings about her nomination in her favor, as I often do, if we don't have people who are willing to appear before the committee, willing to give statements that are substantiated rather than unsubstantiated and if the FBI matters also are unsubstantiated, regardless of the accusations. We see in the FBI reports all kinds of accusations from everybody, from responsible citizens to crazies, and we have to look at those things in a bipartisan, decent, honorable way, sift through them, and do the best we can to arrive at the facts and to be fair to the nominees. While her candidacy was in the committee, like I say, I resolved these serious misgivings I had in her favor because we do not--most of the accusations, all of the accusations, by and large, were unsubstantiated. People were unwilling to come forward and to speak on the record. I am not about to oppose a nominee and cast a shadow over his or her career when all the Committee has to act on are anonymous sources. But now we have people who have been willing to come forward. I wish they had done so before. It would have helped the Committee straighten out this matter. My decision on the committee was based in large measure on the representations made by the nominee herself, both in answer to the written questions and at her hearing. To the extent that these recent developments called the nominee's statements before the committee under question--and they do--I am obliged to reconsider my vote. After reviewing and considering the information that has recently been provided to the committee by law enforcement officers about her conduct on the bench, her alleged bias against law enforcement, her flawed judicial rulings, and above all, her apparent lack of candor with the committee, I can't in good conscience, based on what is available to me now, continue to give her the benefit of the doubt. I have the highest personal regard for Senator Specter, who has ably promoted her candidacy, I believe, with the same understandings that I have had up until now, but I have serious questions whether Judge Massiah-Jackson is fit for the Federal bench. Senators Specter and Santorum have suggested that she be given an opportunity to publicly respond to these recent developments. As chairman of the committee, I hope that the Senate can accommodate their request. I am not sure that we will at this point. But I hope that we will. I hope we can give her a hearing. If we decide to have a hearing, I can hold a hearing. And I think I would have the cooperation on the part of the minority in doing so. Having said that, I also believe that some of my colleagues, who will speak in opposition to the nominee, have a legitimate argument in urging the Senate to vote on this. In his State of the Union Address, President Clinton challenged the Senate to ``vote on the highly qualified nominees before you, up or down.'' Since President Clinton's challenge, the Senate has voted to confirm five judicial nominees. One judicial nominee has chosen to withdraw. And Judge Massiah-Jackson's nomination is in serious question due to concerns from the law enforcement community. Today, some of my colleagues are eager to comply with President Clinton's request. And I hope that this year we will be a bit more expeditious in bringing judges up for votes on the floor. If Senators have objections to them, let them raise them here. This is an appropriate place to do it. Above all, it is appropriate to raise them during the hearings that we hold in the Judiciary Committee. But they can also be raised here, and we face those objections if we are for or against these nominees as they come up for a vote. Mr. President, if I could just have one more sentence, I don't know whether we will have another hearing or not. But I am certainly going to keep my options open on the subject and work with my colleagues from Pennsylvania. I can't believe that all of these people who have suddenly come forth as law enforcement people are not telling the truth. Yet, I do have some information that Judge Massiah-Jackson may have massaged some of the facts herself. And I am very concerned about this. Frankly, I am going to look for guidance here on the floor from a wide variety of people. And let's just hope that we can do what is appropriate here under the circumstances. I yield the floor at this time.

Mr. HATCH. I understand this to be the case. As I noted, the record as of today is unclear on a number of these issues. The Department of Justice is still reviewing some of these cases. But the fact that the defendant was eventually acquitted does not excuse the fact that she was reversed on appeal, that we only learned of this case last week, and that there certainly appeared to be probable cause to arrest him.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the Senate now proceed to executive session to consider the nomination of Frederica Massiah-Jackson.

Mr. HATCH. Let me also note for the record, there is no objection on the part of the minority, at least I have been informed there is no objection, to proceeding with this debate at this time.

Mr. HATCH

Mr. HATCH. Mr. President, I want to echo the remarks of my colleague, Senator Bennett, in sharing with the Senate the creed written by our fellow Utahn, Terry Harris. It is an inspiring declaration of personal integrity and determination. I join in commending Terry Harris. I urge all Americans to read it and carefully consider its message, not just to African Americans, but to all of us. In doing the right thing, the power of a single individual can make our country a better place.

Mr. HATCH

Mr. HATCH. Mr. President, I move to reconsider the vote by which the nomination was confirmed.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH

Mr. HATCH. Mr. President, as I said, I have listened with care to the arguments made today in opposition to the nomination of Dr. David Satcher for the position of Surgeon General of the United States Public Health Service and Assistant Secretary for Health, and I feel compelled to rise again in support of this nominee. Let me make perfectly clear that I do not agree with all of Dr. Satcher's positions. I do not agree with all of the positions, indeed with many of the positions, of the Administration he will represent. But, on balance, my overriding consideration, after having spoken extensively with Dr. Satcher, is my conviction that he has exemplary qualifications and experiences that will enable him to hold this important office with great distinction. I know that others, like my friend from Missouri, Senator Ashcroft, and Senator Coats and others earnestly believe that Dr. Satcher should not be confirmed as Surgeon General. I respect their point of view, especially Senator Ashcroft's and Senator Coats' point of view. I believe they have raised some necessary questions for the nominee to answer. The debate over this nomination has focused on important issues of public policy such as partial birth abortion and the appropriate role of the United States conduct of clinical trials in the Third World. These are indeed serious issues worthy of debate by this chamber. It is important for this body to know what the Surgeon General thinks about key issues pertaining to the health of the American public and the health of our international neighbors. This year Congress has the opportunity to pass historic public health legislation that can protect our nation's teenagers by materially reducing the next generation of smokers. If we accomplish this--and I think we should because each day 3,000 young people begin to smoke and ultimately 1,000 will die early from smoking related diseases--a portion of this success must be attributed to the involvement past Surgeons Generals. In 1964, it was Surgeon General Luther Terry who first reported to Americans that smoking is a major cause of disease. Frankly, it was this Surgeon's General report that did as much as anything that set the course that places us on the verge of this historic legislation. Since 1964, all succeeding Surgeons General have played an active role in warning the public of the risks of tobacco use. In the 1980s, it was Surgeon General C. Everett Koop who did so much to put this issue back on the front burner of public opinion. I don't think that there is any question about the fact that one of the most important legacies of the Office of Surgeon General over the last 35 years is the great contribution that these officials have played in significantly cutting down the number of Americans who use tobacco products to about 25 percent of the population. But 25 percent is still too high because it results in an estimated 400,000 premature deaths annually and runs up billions in extra health care costs. In my view, we must have a Surgeon General who is able to communicate effectively with the American people about the risks of tobacco use. On the Today Show last Friday morning, former Surgeon General Koop--a strong supporter of Dr. Satcher--pointed out that in the years since the Office of Surgeon General has been vacant, certain types of youth tobacco use have gone up about 4 percent. It just seems to me that it is critical at this time to have in office a Surgeon General who can lead the Government's anti-tobacco use efforts. From his past efforts in this battle against smoking while at CDC-- and from my personal conversations with him--I am convinced that Dr. David Satcher can be a major public figure in the country's battle against tobacco use. No one is saying that a policy of prohibition for tobacco would be workable. This makes it all the more important that public opinion leaders, like the Surgeon General, be able to communicate the risks of tobacco use in a fashion that convinces the public about the benefits of stopping to use these deadly products. I think Dr. Satcher can play the role of public spokesman in an effective fashion because, when the American people get to know him, he will have earned their respect and will listen to his advice of matters of public health. While tobacco alone is critically important, there are many other public health issues that cry out for the national focus and leadership that a strong Surgeon General can provide. In many respects, we are at a critical juncture in the battle against HIV transmission and other sexually transmitted diseases. Fortunately, the latest triple combination therapies have shown--at least in the short run--great promise in combating the progression of the AIDS virus. But, unfortunately, this may lead some people to conclude falsely that HIV has been cured or is at least not dangerous, or not very dangerous. This may lead some young people to engage in sexual behaviors and drug abuse behaviors that not only are morally troublesome, but can be potentially lethal. In this regard, there are some recent indications that certain types of sexually transmitted disease are once again on the rise. We need a strong Surgeon General to help teach our citizens, and particularly our young citizens, that abstinence from promiscuous sexual behavior and illicit drugs is good for your health. I am pleased that Dr. Satcher has a strong track record in getting this message out--and as a long time health educator he knows how to get this message out in a way that young people will listen to. And given his long record of involvement as a health leader with special ties to those in the minority community--from his work at Morehouse College and Meharry Medical School and the King-Drew Medical Center-- Dr. Satcher promises to be able to use his leadership position as Surgeon General to direct greater attention on health problems that disproportionately affect minority communities. I have no doubt in my mind that Dr. Satcher will be able to serve effectively as Surgeon General for all the people in this country. Under his leadership at CDC, the agency put greater emphasis on prevention. I think that there is much truth in the old adage, ``An ounce of prevention is worth a pound of cure.'' Frankly, as a conservative, I think Government debates pounds and pounds of cures, having completely lost sight of the benefits of a little old-fashioned, non-governmental ounce of prevention. In the past I have been involved in a number of confirmations of Surgeons General. During the Bush Administration, I enthusiastically supported the nomination and confirmation of Surgeon General Antonia Novello. Dr. Novello came from a research background at the National Institute of Child Health and Development and did a very good job for this country. Dr. Novello spent much of her efforts on pediatrics problems such as pediatric AIDS programs. Before that, I was involved in the then very controversial nomination of Dr. C. Everett Koop by President Reagan. At the time of his nomination, many had concerns that Dr. Koop, a pediatric surgeon by training who held strong pro-life views on abortion, would turn the Surgeon General's role into a polarizing position because of the politics of abortion. Dr. Koop and I went to his opponents and explained that the great challenge and responsibility of the Surgeon General's office is not to stress issues that divide Americans but to act to unite the public by educating our citizens about the medical and scientific facts of health issues. I might mention that was a big battle. It took 8 months to get Dr. Koop approved because of pro-choice Senators. But, finally, he was approved and those Senators became some of his strongest supporters through the years. I agree with Dr. Koop's oft-repeated statement that the job title is Surgeon General of the Public Health Service, not chaplain of the Public Health Service. I think that history will judge that I was correct in my assessment that Dr. Koop was the right man for the job. I know that many who voted against him now agree that Dr. Koop was an outstanding Surgeon General. It is somewhat ironic that one of the issues raised in the Koop confirmation has also been raised in the Satcher confirmation. That matter is abortion, in particular the nominee's view of partial birth abortion. Let me be abundantly clear: I am firmly and resolutely opposed to partial birth abortion. I disagree with the views of both the President and Dr. Satcher on this issue. I think that they are in the minority on this issue. Nevertheless, I don't think that Dr. Satcher's views on this issue should disqualify him for this position, so long as he does not make it a matter of public policy and does not advocate for it. And he has indicated to me that he will not advocate for it, that he will not bring abortion into the debate if he is confirmed as Surgeon General. While others who have held this post have endeavored to use it as a bully pulpit for a controversial social policy agenda, I am assured by Dr. Satcher that he fully understands the extreme sensitivity of these issues, particularly abortion. In my discussions with him, he has assured me that he will not use the Surgeon General's Office as a pro- abortion platform, and I believe him. And, with that assurance, I am willing to support him here today. As Dr. Satcher has written to the Congress: Let me state unequivocally that I have no intention of using the positions of Assistant Secretary for Health and Surgeon General to promote issues related to abortion. I share no one's political agenda and I want to use the power of these positions to focus on issues that unite Americans-- not divide them. If I am confirmed by the Senate, I will strongly promote a message of abstinence and responsibility to our youth, which I believe can help to reduce the number of abortions in our country. Let me tell you, I can't tell you how much that means to me, that we have a Democrat-appointed Surgeon General who is willing to preach abstinence throughout this country to our youth. And to preach--I should say teach, would be a better word--good health practices. I have to say some of our Republican Surgeons General haven't done this as well as I think Dr. Satcher will be inclined to do it. So that is one reason alone to vote for Dr. Satcher. And it is about time. It seems to me that Dr. Satcher and Dr. Koop, while having almost completely opposing views on abortion, share the view that the Surgeon General's post is not the place to press the public debate on this contentious issue. Given his public assurances--which have been butressed by my private conversations with the nominee--I am satisfied that Dr. Satcher can effectively help set the public health agenda of this country and can do it in a way that perhaps no other person at this time can. I think it is time to get this position filled and I think he will do a great job in it, and I intend to see that he does. I also recognize that a lot of this debate has focused on the question of certain AZT trials co-sponsored by CDC and NIH in Thailand and the Ivory Coast. I think that this debate has been healthy and has been helpful in facilitating a better understanding of the proper role of United States public health agencies in conducting research in the Third World. First off, let me just make the point that I believe that any comparisons with the infamous Tuskegee experiments is way wide of the mark. Those natural history studies held no promise of treatment and, in fact, after a treatment was found, this treatment was denied to the participants of the study. Unlike Tuskegee, these AZT trials have a strong informed consent component. These trials were undertaken in close cooperation with the World Health Organization and the national and local public health officials of the country where the trials took place. As a proponent of the successful FDA export bill in 1995, the Hatch-Gregg amendment, I believe that it is imperative in forming public health policy that the United States must recognize and respect the differences in health and wealth characteristics of our foreign neighbors. What is the standard of care in the United States may simply not be appropriate, proper, or possible in another country. In fact, as former Secretary of Health and Human Services, Dr. Louis Sullivan has written to me to rebut criticisms raised against Dr. Satcher. Dr. Sullivan pointed out with respect to these AZT trials: Part of the problem is that the cost of the drugs involved is beyond the resources of developing nations. In Malawi, for example, the regimen for one woman and her child is more than 600 times the annual per capita allocation for health care. I ask unanimous consent this letter be printed in the Record.