Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, S. Res. 169, commemorates the ``Immortal Four Chaplains'' whose brave sacrifice is an inspiring story of personal honor and patriotism. Their heroism of 55 years ago stands today as an eloquent and enduring example of service, fellowship, and love. On February 3, 1943, a German U-boat torpedoed the American transport ship Dorchester, sinking it off the coast of Greenland. Among the nearly 1,000 American soldiers aboard the Dorchester were four chaplains whose selfless acts of courage have left a distinguished legacy, a legacy that we hope to honor and remember in this resolution. Survivors' accounts describing the short 18 minutes that the ship was sinking report that Lieutenant George L. Fox, a Methodist minister; Lieutenant Alexander D. Goode, a Jewish rabbi; Lieutenant John P. Washington, a Catholic priest; and Lieutenant Clark V. Poling, a Dutch Reformed minister worked to alert the soldiers to the danger and direct them to safety. They distributed life jackets until no more were available. Then, these four Army chaplains removed their own life jackets and gave them to four soldiers. One soldier witnessed a chaplain giving his gloves to a panicked GI shivering in the Arctic air to prevent the young man from returning to his cabin for his own. The chaplains helped 230 men to safety and then chose to remain to calm and comfort the nearly 700 who went down with the ship. True to their faiths and to their fellowmen until the end, they were last seen, arms linked in prayer, on the hull of the ship. A postage stamp in 1948 entitled ``Interfaith in Action" commemorated their bravery. Congress passed a concurrent resolution in 1957 to honor these chaplains and those who died with them. Presidents Truman and Eisenhower also issued proclamations calling for national participation in memorial services throughout the country. The American Legion holds an annual commemorative service on the first Sunday of February. This coming Sunday, February 3, 1998 marks the 55th anniversary of an episode in our history that is tragic yet uplifting. Let us remember these acts of bravery which were not bound or limited by creed or rank. Their timeless sacrifice reminds us that we should not be divided by our differences, but that we should face the travails of our nation together, with faith and strength. I urge the speedy passage of S. Res. 169.

Mr. HATCH

Mr. HATCH. I thank the Chair. (The remarks of Mr. Hatch pertaining to the introduction of S. 1530 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. HATCH

Mr. HATCH. Mr. President, perhaps the most important legacy this Congress can leave for future generations is implementation of a strong plan to curb tobacco use, and especially its use by children and teens. Quite simply, something needs to be done to get tobacco out of the hands of children--or perhaps more accurately, out of the lungs and mouths of children.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce, along with Senator Lieberman, the Fairness in Punitive Damages Awards Act. In general, this bill limits the amount of punitive damages that may be awarded in certain civil actions, primarily financial injury lawsuits, to three times the amount awarded to the claimant for economic loss or $250,000, whichever is greater. These are cases where the claims essentially arise from breach of contract or insurance ``bad-faith'' or fraud injuries. The punitive damages limitation provision also excludes awards in cases where death, loss of limb, bodily harm, or physical injury occur. It generally does not encompass products liability and physical harm tort cases--cases where supporters of punitive damage awards contend that exemplary damages are needed to deter reckless behavior. Thus, what sets this bill apart from previous measures is that it has been narrowly tailored to address concerns raised by the Administration and opponents of punitive damages limitations bills. We hope to attract bipartisan support because of the narrow scope of the bill, and, more significantly, because the bill addresses a major impediment to economic growth--runaway punitive damage awards, particularly in financial injury cases. It is beyond doubt that our civil justice system is being plagued by an epidemic of punitive damage awards. In recent testimony before the Judiciary Committee, former Assistant Attorney General Theodore Olson noted that throughout the 19th until the mid-20th century, punitive damages were quite rare. ``For example, the highest punitive damages award affirmed on appeal in California through the 1950's was $10,000. But the punitive damage landscape began to change dramatically in the 1960's. California's record for punitive damage awards affirmed on appeal soared to $15 million in the 1980's, an increase of 1,500 fold in just 30 years.'' In Alabama, according to Olson, an aggregate of only $409,000 in punitive damages had been affirmed on appeal during the period 1974-1978. The comparable total just 15 years later skyrocketed to $90 million. Indeed, punitive damage lawyers have largely succeeded in taking over the civil justice compensation system. In 1960, according to a Rand study, punitive damages accounted for just 2% of total damages in civil cases in San Francisco, California. Thirty years later, according to Rand, punitive damages accounted for an amazing 59% of all damages in financial injury cases, and an even more amazing 80% in Alabama. And the size of these awards is staggering and, I must add, irrational. Take the recent CSX Railroad case. Even though a federal probe found the railroad blameless in a tank car explosion on CSX owned tracks which caused relatively minor harm to some 20 plaintiffs in Louisiana, a state jury awarded $2.3 million in compensatory and $2.5 billion in punitive damages against CSX. Although the Louisiana Supreme Court at least temporarily barred this irrational verdict--because under Louisiana law no verdict for damages may be made until all the underlying claims are decided--a far more common practice is for courts to halve or reduce the punitive portion of the award. Of course, half of $2.5 billion is still a staggering amount to pay for any private entity. From coffee spills at McDonald's to medical malpractice, in the words of Morton Kondracke in a recent article in Roll Call, ``trial lawyers reap exorbitant profits by trolling for clients and convincing juries to sock it to supposedly deep-pocketed defendants. Consumers pay the bill as companies pass on their massive insurance premiums through higher prices.'' Indeed, the very efficiency of the American market has been weakened by these trends. Certainly, increased litigation and unnecessarily large punitive damage awards have increased the price of doing business. Undoubtedly, these costs have been passed on to consumers and have led to a decrease in productivity and a rise in unemployment. This is supported by a fairly recent study done by Representative and law professor Tom Campbell and other scholars, under the aegis of Stanford University, which demonstrated that in jurisdictions that reform the civil liability process--including placing caps on punitive damages-- productivity and employment rise. Furthermore, untenable jury verdicts create what Rand calls a ``shadow effect'' whereby verdicts totaling tens of billions of dollars send signals as to what other juries might do. Thousands of cases are settled, regardless of their merits, for fear of irrational verdicts. As a result of the shadow effect, consumers nationwide have been adversely affected through the withdrawal of products, producers, services, and service providers from the marketplace, and from excessive liability costs passed on to consumers through higher prices. But the worst cost to our society is the delegitimization of the judicial process as a means of dispute resolution. Litigation today is often seen as an unpredictable ``crap shoot,'' where awards are rendered--not upon justice--but upon envy (who has the ``deep pockets'') or upon blatant emotionalism. So why not sue? Why not spin the wheel? Passage of this bill will help to ameliorate this misconception and restore faith in our civil justice system--which I believe is fundamentally sound. Another reason for bipartisan support for this bill, one that I anticipate will attract many of our colleagues to the bill, is that we have addressed specific concerns which the Administration has expressed about previous bills. You may recall that last year when President Clinton vetoed the products liability bill, he claimed that the bill would protect drunk drivers and terrorists. Our bill will not apply to any case where the injury was caused by a person who was committing a crime of violence, an act of terrorism, a hate crime, a felony sexual offense, or that occurred when the defendant was under the influence of alcohol or drugs. These exceptions, combined with the bill's qualification that excludes cases where an individual has suffered a permanent physical injury or impairment, will ensure that this bill will not limit punitive damages in cases where such egregious conduct has occurred or where a serious injury has been inflicted. Finally, we have included in the bill a provision specifically designed to protect small businesses, which form the backbone of Utah's and our country's economy. Excessive, unpredictable, and often arbitrary punitive damage awards jeopardize the financial well-being of many individuals and companies, particularly the Nation's small businesses. Under this bill, if the claim for damages is against an individual whose net worth is less than $500,000 or against a business with less than 25 full-time employees, then punitive damages are limited to the lesser of 3 times the economic loss or $250,000. Establishing a rule of proportionality between the amount of punitive damages awarded and the amount of economic damages would be fair to both plaintiffs and defendants. In addition, we will take a step towards resolving the constitutional objection, raised by the United States Supreme Court last year in BMW of North America v. Gore, to punitive damages that are grossly excessive in relation to the harm suffered. Mr. President, we must restore rationality, certainty, and fairness to the award of punitive damages. This bill is an important step in that direction. I urge my colleagues to join me in cosponsoring this legislation and encourage the Senate to act expeditiously on this important bill. Mr. President, I ask unanimous consent that the entire text of the bill be placed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, perhaps the most important legacy this Congress can leave for future generations is implementation of a strong plan to curb tobacco use, and especially its use by children and teens. Quite simply, something needs to be done to get tobacco out of the hands of children--or perhaps more accurately, out of the lungs and mouths of children.

Mr. HATCH. Mr. President, I rise today to introduce, along with Senator Lieberman, the Fairness in Punitive Damages Awards Act. In general, this bill limits the amount of punitive damages that may be awarded in certain civil actions, primarily financial injury lawsuits, to three times the amount awarded to the claimant for economic loss or $250,000, whichever is greater. These are cases where the claims essentially arise from breach of contract or insurance ``bad-faith'' or fraud injuries. The punitive damages limitation provision also excludes awards in cases where death, loss of limb, bodily harm, or physical injury occur. It generally does not encompass products liability and physical harm tort cases--cases where supporters of punitive damage awards contend that exemplary damages are needed to deter reckless behavior. Thus, what sets this bill apart from previous measures is that it has been narrowly tailored to address concerns raised by the Administration and opponents of punitive damages limitations bills. We hope to attract bipartisan support because of the narrow scope of the bill, and, more significantly, because the bill addresses a major impediment to economic growth--runaway punitive damage awards, particularly in financial injury cases. It is beyond doubt that our civil justice system is being plagued by an epidemic of punitive damage awards. In recent testimony before the Judiciary Committee, former Assistant Attorney General Theodore Olson noted that throughout the 19th until the mid-20th century, punitive damages were quite rare. ``For example, the highest punitive damages award affirmed on appeal in California through the 1950's was $10,000. But the punitive damage landscape began to change dramatically in the 1960's. California's record for punitive damage awards affirmed on appeal soared to $15 million in the 1980's, an increase of 1,500 fold in just 30 years.'' In Alabama, according to Olson, an aggregate of only $409,000 in punitive damages had been affirmed on appeal during the period 1974-1978. The comparable total just 15 years later skyrocketed to $90 million. Indeed, punitive damage lawyers have largely succeeded in taking over the civil justice compensation system. In 1960, according to a Rand study, punitive damages accounted for just 2% of total damages in civil cases in San Francisco, California. Thirty years later, according to Rand, punitive damages accounted for an amazing 59% of all damages in financial injury cases, and an even more amazing 80% in Alabama. And the size of these awards is staggering and, I must add, irrational. Take the recent CSX Railroad case. Even though a federal probe found the railroad blameless in a tank car explosion on CSX owned tracks which caused relatively minor harm to some 20 plaintiffs in Louisiana, a state jury awarded $2.3 million in compensatory and $2.5 billion in punitive damages against CSX. Although the Louisiana Supreme Court at least temporarily barred this irrational verdict--because under Louisiana law no verdict for damages may be made until all the underlying claims are decided--a far more common practice is for courts to halve or reduce the punitive portion of the award. Of course, half of $2.5 billion is still a staggering amount to pay for any private entity. From coffee spills at McDonald's to medical malpractice, in the words of Morton Kondracke in a recent article in Roll Call, ``trial lawyers reap exorbitant profits by trolling for clients and convincing juries to sock it to supposedly deep-pocketed defendants. Consumers pay the bill as companies pass on their massive insurance premiums through higher prices.'' Indeed, the very efficiency of the American market has been weakened by these trends. Certainly, increased litigation and unnecessarily large punitive damage awards have increased the price of doing business. Undoubtedly, these costs have been passed on to consumers and have led to a decrease in productivity and a rise in unemployment. This is supported by a fairly recent study done by Representative and law professor Tom Campbell and other scholars, under the aegis of Stanford University, which demonstrated that in jurisdictions that reform the civil liability process--including placing caps on punitive damages-- productivity and employment rise. Furthermore, untenable jury verdicts create what Rand calls a ``shadow effect'' whereby verdicts totaling tens of billions of dollars send signals as to what other juries might do. Thousands of cases are settled, regardless of their merits, for fear of irrational verdicts. As a result of the shadow effect, consumers nationwide have been adversely affected through the withdrawal of products, producers, services, and service providers from the marketplace, and from excessive liability costs passed on to consumers through higher prices. But the worst cost to our society is the delegitimization of the judicial process as a means of dispute resolution. Litigation today is often seen as an unpredictable ``crap shoot,'' where awards are rendered--not upon justice--but upon envy (who has the ``deep pockets'') or upon blatant emotionalism. So why not sue? Why not spin the wheel? Passage of this bill will help to ameliorate this misconception and restore faith in our civil justice system--which I believe is fundamentally sound. Another reason for bipartisan support for this bill, one that I anticipate will attract many of our colleagues to the bill, is that we have addressed specific concerns which the Administration has expressed about previous bills. You may recall that last year when President Clinton vetoed the products liability bill, he claimed that the bill would protect drunk drivers and terrorists. Our bill will not apply to any case where the injury was caused by a person who was committing a crime of violence, an act of terrorism, a hate crime, a felony sexual offense, or that occurred when the defendant was under the influence of alcohol or drugs. These exceptions, combined with the bill's qualification that excludes cases where an individual has suffered a permanent physical injury or impairment, will ensure that this bill will not limit punitive damages in cases where such egregious conduct has occurred or where a serious injury has been inflicted. Finally, we have included in the bill a provision specifically designed to protect small businesses, which form the backbone of Utah's and our country's economy. Excessive, unpredictable, and often arbitrary punitive damage awards jeopardize the financial well-being of many individuals and companies, particularly the Nation's small businesses. Under this bill, if the claim for damages is against an individual whose net worth is less than $500,000 or against a business with less than 25 full-time employees, then punitive damages are limited to the lesser of 3 times the economic loss or $250,000. Establishing a rule of proportionality between the amount of punitive damages awarded and the amount of economic damages would be fair to both plaintiffs and defendants. In addition, we will take a step towards resolving the constitutional objection, raised by the United States Supreme Court last year in BMW of North America v. Gore, to punitive damages that are grossly excessive in relation to the harm suffered. Mr. President, we must restore rationality, certainty, and fairness to the award of punitive damages. This bill is an important step in that direction. I urge my colleagues to join me in cosponsoring this legislation and encourage the Senate to act expeditiously on this important bill. Mr. President, I ask unanimous consent that the entire text of the bill be placed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise in support of passage of H.R. 2265, The No Electronic Theft [NET] Act. This bill plugs the ``LaMacchia Loophole'' in criminal copyright enforcement. Current sec. 506(a) of the Copyright Act contains criminal penalties for willful copyright infringement for ``commercial advantage or private financial gain.'' In U.S. versus LaMacchia, 871 F. Supp. 535 (D. Mass. 1994), defendant, a graduate student attending MIT, encouraged lawful purchasers of copyrighted computer games and other software to upload these works via a special password to an electronic bulletin board on the Internet. The defendant then transferred the works to another electronic address and urged other persons with access to a second password to download the materials for personal use without authorization by or compensation to the copyright owners. Because the defendant never benefited financially from any of these transactions, the current criminal copyright infringement could not be used. Furthermore, the court held that neither could the federal wire fraud statute, since Congress never envisioned protecting copyrights under that statute. For persons with few assets, civil liability is not an adequate deterrent. It is obvious that great harm could be done to copyright owners if this practice were to become widespread. Significant losses to copyright holders would undermine the monetary incentive to create which is recognized in our Constitution. Mr. President, I believe that willful, commercial-scale pirating of copyrighted works, even when the pirate receives no monetary reward, ought to be nipped in the bud. This bill does that. I will admit, Mr. President, that I initially had concerns about this bill. I was afraid that the language was so broad that the net could be cast too widely--pardon the pun--so that minor offenders or persons who honestly believed that they had a legitimate right to engage in the behavior prohibited by the bill would be swept in. What of the educator who feels that his or her action is a fair use of the copyrighted work? Although the bill is not failsafe, because of the severity of the potential losses to copyright owners from widespread LaMacchia-like behavior and the little time remaining in this session, on balance I was persuaded to support the bill. I place great store by the ``willfulness'' requirement in the bill. Although there is on-going debate about what precisely is the ``willfulness'' standard in the Copyright Act--as the House Report records--I submit that in the LaMacchia context ``willful'' ought to mean the intent to violate a known legal duty. The Supreme Court has given the term ``willful'' that construction in numerous cases in the past 25 years, for example: U.S. versus Bishop, 412, U.S. 346 (1973); U.S. versus Pomponio, 429 U.S. 987 (1976); Cheek versus U.S., 498 U.S. 192 (1991); and Ratzlaf versus U.S., 510 U.S. 135 (1994). As Chairman of the Judiciary Committee, that is the interpretation that I give to this term. Otherwise, I would have objected and not allowed this bill to pass by unanimous consent. Under this standard, then, an educator who in good faith believes that he or she is engaging in a fair use of copyrighted material could not be prosecuted under the bill. I am also relying upon the good sense of prosecutors and judges. Again, the purpose of the bill is to prosecute commercial-scale pirates who do not have commercial advantage or private financial gain from their illegal activities. But if an over-zealous prosecutor should bring and win a case against a college prankster, I am confident that the judge would exercise the discretion that he or she may have under the Sentencing Guidelines to be lenient. If the practical effect of the bill turns out to be draconian, we may have to revisit the issue. In addition to my concern that the bill's scope might be too broad, I wanted to make sure that the language of the bill would not prejudice in any way the debate about the copyright liability of on-line and Internet service providers. Mr. President, there are good arguments on both sides of the issue, and I will shortly begin the process of bringing the parties together to try to obtain a mutually agree-upon solution to this problem. It is my understanding that representatives of the OSP/ISP community and the fair use community were consulted during the passage of the bill in the House. This tends to confirm my judgment that the bill was not intended to affect the OSP/ISP liability debate. Finally, Mr. President, I would like to point out two areas that are susceptible to interpretation mischief. First, the bill amends the term ``financial gain'' as used in the Copyright Act to include ``receipt, or expectation of receipt, of anything of value, including receipt of other copyrighted works.'' The intent of the change is to hold criminally liable those who do not receive or expect to receive money but who receive tangible value. It would be contrary to the intent of the provision, according to my understanding, if ``anything of value'' would be so broadly read as to include enhancement of reputation or value remote from the criminal act, such as a job promotion. Second, I am concerned about the interplay between criminal liability for ``reproduction'' in the bill and the commonly-held view that the loading of a computer program into random access memory [RAM] is a reproduction for purposes of the Copyright Act. Because most shrink- wrap licenses purport to make the purchaser of computer software a licensee and not an owner of his or her copy of the software, the ordinary purchaser of software may not be able to take advantage of the exemption provided by sec. 117, allowing the ``owner'' of a copy to reproduce the work in order to use it in his or her computer. Many shrink-wrap licenses limit the purchaser to making only a single backup copy of his or her software. Thus, under a literal reading of the bill, the ordinary purchaser of computer software who loaded the software enough times in the 180-day period to reach the more-than- $1,000 threshold may be a criminal. This is, of course, not the intent of the bill. Clearly, this kind of copying was not intended to be criminalized. Additionally, Congress has long recognized that it is necessary to make incidental copies of digital works in order to use them on computers. Programs or data must be transferred from a floppy disk to a hard disk or from a hard disk into RAM as a necessary step in their use. Modern operating systems swap data between RAM and hard disk to use the computer memory more efficiently. Given its purpose, it is not the intent of this bill to have the incidental copies made by the user of digital work be counted more than once in computing the total retail value of the infringing reproductions. As you can see, Mr. President, I do not believe this is the perfect bill, but it is a good bill that addresses a serious problem that has the potential of very soon undermining copyright in many works, not just computer software. I am confident that prosecutors and the courts will make their decisions with the purpose of the bill in mind--the elimination of willful, commercial-scale pirating of copyrighted works.

Mr. HATCH

Mr. HATCH. Mr. President, as we complete the 1st session of the 105th Congress, I would like to update my colleagues on how we have advanced the judicial confirmation process. Let me say from the outset that I believe one of the Senate's most important functions is its constitutional authority, and responsibility, to render advice and consent to the President in his nomination of Federal judges. Unique in our system of Government, Federal judges serve for life, and are entirely unaccountable to the electorate. When a single Federal judge is confirmed by the U.S. Senate, he or she will exercise enormous power over our people, our States, and our public and private institutions, for years and years to come. As the scope of Federal law--both statutory and constitutional--has exploded to cover virtually all areas of our lives and culture, and as our society has become more litigious, Federal judges have come to wield vast power over countless aspects of our everyday lives. Moreover, the troubling trend toward increased judicial activism has only enhanced the power that judges exercise in our society. As a result, I have dedicated considerable time and energy to thoroughly review each nominee in an effort to ensure that only individuals of the highest caliber are permitted to serve on the Federal bench. At the same time, of course, I am cognizant that as President, Mr. Clinton is entitled to some deference in his choice of Federal judges, and I have sought to respect the President's decisions. To date, the Senate has confirmed 239 Clinton judges, of which 35 were confirmed this year alone. Those 239 judges represent nearly one- third of the entire Federal bench. We currently have nine judges pending on the Senate floor. If those judges are confirmed, as I hope they will be, the Senate will have confirmed 44 Federal judges during this session. I believe that the Judiciary Committee has been proceeding fairly and at reasonable pace. Indeed, I strongly believe that we must do our best to reduce the approximately 80 vacancies that currently exist in the Federal courts. There are, however, limits to what the Judiciary Committee can do. We cannot, no matter how hard we may try, confirm judges who have yet to be nominated. Of the 43 nominees currently pending, 9 were received in the last month. And 13 of those pending nominees are individuals simply renominated from last Congress. So, of those 80 vacancies, 45 are, in effect, a result of the administration's inaction. Forty-three total pending - 8 incomplete paperwork = 35 real nominees; 80 vacancies - 35 real nominees = 45 White House inaction. Moreover, of the 79 total judicial nominees sent forward to the committee this year, 47 have now had hearings. Of the 47 nominees that have had hearings, 41 have been reported out of committee. Of those 41 nominees reported out of committee, 35 have been confirmed, and 9 are pending on the Senate floor. The committee has moved noncontroversial nominees at a relatively speedy pace. In fact, I pledge that when the administration sends us qualified, noncontroversial, nominees, they will be processed fairly and promptly. Indeed, in the last few months, the administration has finally begun sending us nominees that I have for the most part found to be quite acceptable. Take Ms. Frank Hull, for example. She was nominated for a very important seat on the Eleventh Circuit. Ms. Hull was nominated June 18, had her hearing July 22, and was confirmed on September 4. This is a remarkably fast turnaround. Or consider Mr. Alan Gold from Florida. He was nominated in February. We completed his paperwork and our review in March and April, he had a hearing shortly thereafter in May, and he was reported out of committee and confirmed before the July 4 recess. Two other good examples are Ms. Janet Hall from Connecticut and Mr. Barry Silverman, of Arizona. Ms. Hall was nominated to the U.S. District Court June 5, 1997, the committee had a hearing on July 22, and she was confirmed September 11. Mr. Silverman may have even set the record: The committee received his nomination on November 8, held his hearing on November 12, and reported him out of committee today. Clearly, when it comes to new, noncontroversial nominees, we are, in fact, proceeding with extraordinary speed and diligence. More controversial nominees, however, take more time. Indeed, many of the individuals renominated from the 104th Congress have proven difficult to move for a variety of reasons. Unfortunately, of the 79 individuals nominated this Congress, only 56 have been new; the other 23 are individuals who were previously nominated, but have been controversial and proven difficult to move through the committee--much less to confirm. When the administration simply sends back nominees who had problems last Congress, it takes much more time, and is much more difficult, to process them. It is worth pointing out that there was, in virtually every instance, a reason why the Senate confirmed 239 other Clinton nominees but not those 23. And, if all we are left with are judges whom we are not ready to move, I will not compromise our advice and consent function simply because the White House has not sent us qualified nominees. As I said at the outset, the Senate's advice and consent function should not be reduced to a mere numbers game. The confirmation of an individual to serve for life as a Federal judge is a serious matter, and should be treated as such. In fact, we have sat down with the White House and Justice Department and explained the problems with each nominee, and they understand perfectly well why those nominees have not moved. Many inaccurate accounts have been written charging that this body has unreasonably held up judicial nominations. That claim is simply not true. As of today, we have processed 47 nominees--35 confirmed, 9 on the floor, 2 are pending in committee and 1 withdrawn. Now, not all of these judges have yet been confirmed, but I expect that they will be confirmed fairly promptly. Assuming most of these nominees are confirmed, I think you will see that our efforts compare quite favorably to prior Congresses, in terms of the number of judges confirmed at this point in the 1st session of a Congress. As of today, we have confirmed 35 judges. If we confirm the 9 judges pending on the Senate floor, we will have confirmed 44 Federal judges this year. Republicans confirmed 55 judges as of the end of the 1st session in the 104th Congress. Indeed, the Democrats confirmed only 28 judges for President Clinton at the end of the 1st session back in the 103d Congress. Although the Democrats confirmed 57 judges as of the end of the first session back in 1991, for a Republican President, they confirmed only 15 judges in 1989 and 42 judges in 1987, both for Republican Presidents. So the plain fact is that we are right on track with, if not ahead of, previous Congresses. And this is particularly significant given the fact that we have more authorized judgeships today than under Presidents Bush or Reagan. In fact, there are more sitting judges today than there were throughout virtually all of the Reagan and Bush administrations. As of today, there are 763 active Federal judges. At this point in the 101st and 102d Congresses, by contrast, when a Democrat-controlled Senate was processing President Bush's nominees, there were only 711 and 716 active judges, respectively. The Democrat Senate actually left a higher vacancy rate under President Bush: Just compare today's 80 vacancies to the vacancies under a Democratic Senate during President Bush's Presidency. In May 1991 there were 148 vacancies, and in May 1992 there were 117 vacancies. I find it interesting that, at that time, I don't recall a single news article or floor speech on judicial vacancies. So, in short, I think it is quite unfair, and frankly inaccurate, to report that the Republican Congress has created a vacancy crisis in our courts. It is plain then, that current vacancies not result of Republican stall. First, even the Administrative Office of the Courts has concluded that most of the blame for the current vacancies falls on the White House, not the Senate. It has taken President Clinton an average of 534 days to name nominees currently pending, for a vacancy--well over the time it has historically taken the White House. It has taken the Senate an average of only 97 days to confirm a judge once the President finally nominates him or her, and in recent months we've been moving noncontroversial nominees at a remarkably fast pace. As a result, with the exception of nominees whose completed paperwork we have not yet received, the White House has only sent up 43 nominees for these 80 vacant seats--of which 13 were received just prior to the Senate going into recess. Forty-five of those seats are, in effect vacant because of White House inaction. Second, those vacancies were caused by a record level of resignations after the elections. During President Clinton's first 4 years, we confirmed 204 judges--a near record high, and nearly one quarter of the entire Federal bench. By the close of last Congress, there were only 65 vacancies. This is virtually identical to the number of vacancies under Senator Biden in the previous Congress. The Department of Justice itself stated that this level of vacancies represents virtual full employment in the Federal courts. So last Congress we were more than fair to President Clinton and his judicial nominees. We reduced the vacancy level to a level which the Justice Department itself considers virtual full employment. But after the election last fall, 37 judges either resigned or took senior status--a dramatic number in such a short period. This is what has led to the current level of 80 vacancies. Many Judicial ``Emergencies'' are far from that: I would also like to clarify a term that is now bandied about with little understanding of what it really means a judicial ``emergency'' is simply a seat that has been unfilled for a certain period of time. In reality, though, many of those seats are far from emergencies. Indeed, of the 29 judicial emergencies, the administration has not even put up a nominee for 7 of those seats. As for the others, I think you will find that a number of the relevant districts do not in fact have an overly burdensome caseload. And, keep in mind that the Clinton administration is on record as having stated that 63 vacancies--a vacancy rate of just over 7 percent--is considered virtual full employment of the Federal judiciary. The current vacancy rate is only 9 percent. How can a 2 percent rise in the vacancy rate--from 7 to 9 percent--convert full employment into a crisis? It can't. The reality is that the Senate has moved carefully and deliberately to discharge its constitutional obligation to render advice and consent to the President as he makes his appointments. I am satisfied by the committee's work this session, and look forward to working with the administration in the coming months to identify qualified candidates to elevate to the Federal bench. I yield the floor I thank the Chair. Mr. ROBB addressed the Chair.

Mr. HATCH

Mr. HATCH. Mr. President, I was very pleased that the Senate has acted on S. 1454 and want to commend Senators Chafee, Warner, Baucus, and Bond for coming up with this extension bill for the Intermodal Surface Transportation Efficiency Act [ISTEA]. Despite the fact that this temporary extension of ISTEA is just that--temporary--and obviously not a preferred way of doing business, I welcome it. I join in urging the House of Representatives to take it up and pass it. It will provide a modicum of certainty for the States given that we were unable to pass S. 1173, the 6-year reauthorization of ISTEA. We all know that ISTEA is an essential piece of legislation. It is precisely because of its great importance and significance to every State that it generates controversy. Among the many controversial issues associated with the reauthorization are certain labor provisions, safety and environmental concerns, and the always difficult issue of the distribution of highway funding. Believe me, I am well aware of how difficult it is to build majorities--and, in the case of ISTEA, a super-majority--on controversial legislation. Let me say unequivocally for the record that I support the 6-year authorization measure that Senator Chafee and the other members of the Environment and Public Works Committee brought to the Senate floor last month. Though it would be hard to imagine any transportation funding bill being 100 percent perfect from the standpoint of any one State, this bill was a solid bill and one I was pleased to support. In fact, I voted for this bill four times in the form of four cloture votes. But, Senator Chafee, despite his best efforts, was not allowed to move this bill. Unfortunately, as we all know, ISTEA fell victim to the efforts of those on the other side of the aisle to force the Senate to act on another piece of legislation; namely, campaign finance reform. Well, Mr. President, I am here to tell you that Utahns are indeed interested in campaign finance reform. But, at the moment, with numerous road construction projects underway, and facing a 2002 deadline for the Winter Olympic Games, they are equally if not more interested in ISTEA. The people of every State in the Union are going to pay dearly for the filibuster waged against ISTEA for the sake of campaign finance reform. They will be paying for it with bad roads, unrepaired bridges, and unimproved mass transit. They are going to pay for it with delays in making the necessary improvements. The Environment and Public Works Committee did its job. Senator Lott did his job in calling the bill up for debate. But, it takes 60 votes to cut off a filibuster and pass a bill. We tried four times. I am not enthusiastic about this short-term bill. It is a far cry from what we should have done earlier and what I hope we will do at our earliest opportunity next year. But, we have to be realistic about where we are today. And we have to face the reality that the 6-year ISTEA reauthoritzation bill did not pass this year. Under such circumstances, I think that the majority leader would have been entirely justified in not bringing up and facilitating the passage of the short-term extension. He could easily say to Senators that we should stew in our own juice. So as a Senator from a State severely affected by the failure to move ahead on ISTEA, I appreciate that he took the high road. The short-term bill will at least relieve the vulnerable position States would be in under no ISTEA authority at all. But, I want the people of Utah to know that I will be working hard in the months ahead to support the Senator from Rhode Island and the Senator from Montana in the effort to get the 6-year ISTEA bill passed in the Senate and into conference with the House.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to urge my colleagues to support S. 493, the Wireless Telephone Protection Act. This important bill will close a glaring gap in the protection afforded by federal law to cellular telephone communications. Law enforcement is alarmed by the increasingly prevalent practice of ``cloning'' cellular phones. Essentially, criminals operating scanners from the roadside or from buildings near urban freeways, copy identifying numbers for cellular phones. Using the data they obtain, these criminals alter other phones to access the accounts tied to the phone whose data was scanned, thus creating so-called ``clone phones''. They then either sell these phones, or use the clone phones themselves for criminal purposes. These phones are used for several weeks or months, until the legitimate customer notices the fraud when he or she gets the bill for phone service accessed by the clone phone. The effects of these criminal schemes are twofold. First, this crime steals cellular service from the phone companies, which typically credit legitimate customers' accounts when alerted to the fraud. Second, the use of clone phones masks other criminal conduct by making criminal's calls difficult, if not impossible, to trace. S. 493, sponsored by Senator Kyl, helps close this gap in the law by making it a federal crime to own or use the software or hardware needed to clone cell phones. I also urge my colleagues to support an amendment to this bill, to ensure the confiscation of the equipment used to violate this law, and commit other frauds related to access devices. Presently, persons convicted of committing access device fraud under section 1029 of title 18 forfeit to the government the proceeds of their crime. However, there is no provision ensuring that the computers, hardware, software, and other equipment used to commit the crime is forfeited, as well. My amendment to this bill corrects this. My amendment includes in the penalties for a violation of 18 U.S.C. 1029, the forfeiture of any personal property used to commit, facilitate, or promote the commission of the violation. I note for my colleagues that my amendment only addresses criminal forfeiture, so there must be a conviction for the assets to be seized. Second, my amendment only permits the forfeiture of personal property used to commit the offense--mainly, equipment. Houses, other buildings, or land could not be subject to forfeiture under this provision. Mr. President, it is important that we close the gaps in the law that permit criminals to brazenly sell and use equipment to steal cellular phone service and evade law enforcement. It is equally important to get this equipment off the streets. I urge my colleagues to support my amendment and the underlying bill.

Mr. HATCH

Mr. HATCH. Mr. President, I could not let this opportunity pass without recognizing the extraordinary contribution that Kay Holcombe has made during almost 25 years of Government service. Kay, who currently serves as the top health staffer on my good friend Representative John Dingell's Commerce Committee staff, has worked in a variety of positions in Government, including 6 years on Capitol Hill. Unfortunately for us, she plans to retire at the end of this session-- while a fantastic opportunity for her, a regrettable loss the Congress and the Nation. I grew to know and appreciate Kay in 1984, when I was chairman of the Labor Committee and Kay joined our staff as an American Political Science Association congressional fellow. What Kay brought to that job was considerable. She is bright, witty, an expert on any issue she studies, and, above all, a true professional who puts good policy above politics. What I recall most vividly about Kay's period on the Labor Committee was her incredible ability to juggle lots of balls without dropping any of them. I could always count on her to get the job done, and, in fact, to do her job and the job of three others. I believe that Kay stands out among Government employees for the common sense she brings to any position and for an ability to bring consensus to the most difficult of issues. We are witnessing that ability today with passage of the conference report on the FDA reform bill, a bill which--quite simply--would not have been possible without Kay Holcombe. Her work on the Dietary Supplement Health and Education Act also stands out in my mind, where Kay's knowledge and skills as a tactician helped us overcome many an impasse. And, I might add, she was, and I suspect is, the only staffer in the Capitol who understands many of the words we wrote into that act, the most memorable of which was ``lyophilize''. Her background as a bench scientist at NIH, with subsequent experience in almost every one of the Public Health Service agencies, is a record of accomplishment and experience that cannot be matched on Capitol Hill. I, for one, will miss Kay's expertise sorely. And while I am thrilled for her as she enters this challenging new period in her life, and I am saddened at our loss here in the Congress. To Kay, her husband Frank, her daughter and son-in-law Anne and Tony, and her mother Ginny, I wish the best as the family enters a new period of life after Capitol Hill. I hope it will be happy indeed.

Mr. HATCH. Mr. President, I wanted to take this brief opportunity to commend Chairman Jeffords for a job well done--for producing a bill which will dramatically improve the way the Food and Drug Administration does business as we move into the 21st century. That has been one of my top priorities during my service in the Senate. I am proud that we are having the opportunity today to vote on this historic legislation which will have so many benefits for my State of Utah. Utah is the home to over 100 medical device manufacturers, and several pharmaceutical manufacturers as well. We also are the Nation's leading producer of dietary supplements. The Utah Life Sciences Industries Association, the leading trade association for Utah device and drug manufacturers, has worked closely with the Congress in formulating this legislation, which will have many positive effects for Utah. On behalf of our Utah drug and device manufacturers, let me thank you Chairman Jeffords, and our colleague in the House, Chairman Tom Bliley, for producing a bill which has encouraged the FDA to work in a more collaborative manner and to get the job done, to get it done professionally and expeditiously, without all the bureaucratic hassles we have experienced in the past. And on behalf of the dietary supplement manufacturers, and most importantly the 100 million or so consumers--most of whom seem to have called our offices in the last few weeks--let me thank you for making sure that the bill does not undo the Dietary Supplement Health and Education Act in any way and that dietary supplements will remain what they are, food products, not drugs. Finally, I wish to thank all of the staff who worked literally through the night to make today's passage of the conference report for S. 830 possible. You can be proud of your work. retirement of kathleen ``kay'' holcombe

Mr. HATCH

Mr. HATCH. Mr. President, today I am proud to introduce a bill with my colleagues Senators Baucus, Mack, Abraham, Conrad, Lieberman, Boxer, Murkowski, Rockefeller, Feinstein, Murray, and Durbin to make the tax credit for increasing research activities permanent. Companion legislation has been introduced in the House by Representatives Nancy Johnson and Robert Matsui. The United States is a leader in the development of new technology. Historically, the R&E credit has played a major role in elevating this great Nation to such a significant and influential leadership position. The United States is currently ahead of the ever increasing competition in developing and marketing new products. With greater market challenges in the future, we will have to fight hard to maintain the U.S. lead in new technology and innovation. The role of the R&E tax credit will be increasingly important. But, we must recognize that scientific breakthroughs usually do not happen overnight. Research and development is a long-term, on-going process. The development of new products and services is the result of slow and steady effort and investment. It is for this reason that start and stop nature of the R&E credit hinders American progress in research. The tax credit is authorized only for a short time--which in science is practically no time at all--and then goes to the brink of expiration before Congress acts to extend it again. Permanent extension of the R&E tax credit would provide badly needed predictability. Our country provides very little in the way of direct funding for research. While we subsidize basic research to some extent through the National Science Foundation and other science agencies, the United States depends on the private sector to finance applied research to a very substantial degree. This paradigm has worked well. Government does not make decisions about what research to fund or make judgments about what sectors look promising. Yet, risk-taking, particularly in fields such as pharmaceuticals where the cost of developing just one new drug can reach into the hundreds of millions of dollars, is an activity that we encourage with the R&E tax credit. Without the R&E tax credit, American industry is put at a tremendous disadvantage relative to foreign competitors whose governments provide direct subsidies for research. We simply must not let American leadership in science and technology lapse. There are enormous benefits from research. Additional investment in research yields new jobs--in some cases entire new industries-- strengthens our international position, and often results in an enhanced quality of life for consumers. Simply put, the tax credit is an investment for economic growth and the creation of new jobs. Mr. President, my home state of Utah is home to many innovative companies that invest a significant percentage of their revenue in research and development activities. Scattered across the Wasatch front is a large stretch of software and computer engineering firms. This area is second only to California's Silicon Valley as a thriving high technology commercial area. Utah also has approximately 700 biotechnology and biomedical firms which employ nearly 9,000 workers. These companies were conceived through research and development and will continue to grow and thrive only if they can continue to afford to take risks. In all, Mr. President, there are approximately 80,000 employees working in Utah's 1,400 plus and growing technology based firms. Research and development is the lifeblood of these Utah firms and hundreds of thousands more throughout the Nation that are like them. The research and experimentation tax credit has been on the books for many years, and there is no doubt that it has proved beneficial to our Nation's technology enterprise. But, there is also no doubt that its benefits could be even greater if the credit were made permanent and the perennial uncertainty with respect to the availability of the credit--and thus the cost of doing research--were eliminated. With the introduction of this bill, I am pleased to inform you that we have included one slight change in this permanent extension. As already established, companies whose research efforts do not qualify them for the credit are allowed to choose the alternative incremental credit. The bill would increase the three alternative incremental credit rates by one percentage point each, thereby spurring tax credit benefits and encouraging more extensive research and development efforts. I am aware, Mr. President, that not every company that participates in the research and development process benefits from the credit. However, I believe that Congress should never permit the credit to expire. I urge my colleagues to support this concept of a permanent R&E credit by cosponsoring this legislation and support the type of research activities that will maintain American technological leadership into the 21st century. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, today I am proud to introduce a bill with my colleagues Senators Baucus, Mack, Abraham, Conrad, Lieberman, Boxer, Murkowski, Rockefeller, Feinstein, Murray, and Durbin to make the tax credit for increasing research activities permanent. Companion legislation has been introduced in the House by Representatives Nancy Johnson and Robert Matsui. The United States is a leader in the development of new technology. Historically, the R&E credit has played a major role in elevating this great Nation to such a significant and influential leadership position. The United States is currently ahead of the ever increasing competition in developing and marketing new products. With greater market challenges in the future, we will have to fight hard to maintain the U.S. lead in new technology and innovation. The role of the R&E tax credit will be increasingly important. But, we must recognize that scientific breakthroughs usually do not happen overnight. Research and development is a long-term, on-going process. The development of new products and services is the result of slow and steady effort and investment. It is for this reason that start and stop nature of the R&E credit hinders American progress in research. The tax credit is authorized only for a short time--which in science is practically no time at all--and then goes to the brink of expiration before Congress acts to extend it again. Permanent extension of the R&E tax credit would provide badly needed predictability. Our country provides very little in the way of direct funding for research. While we subsidize basic research to some extent through the National Science Foundation and other science agencies, the United States depends on the private sector to finance applied research to a very substantial degree. This paradigm has worked well. Government does not make decisions about what research to fund or make judgments about what sectors look promising. Yet, risk-taking, particularly in fields such as pharmaceuticals where the cost of developing just one new drug can reach into the hundreds of millions of dollars, is an activity that we encourage with the R&E tax credit. Without the R&E tax credit, American industry is put at a tremendous disadvantage relative to foreign competitors whose governments provide direct subsidies for research. We simply must not let American leadership in science and technology lapse. There are enormous benefits from research. Additional investment in research yields new jobs--in some cases entire new industries-- strengthens our international position, and often results in an enhanced quality of life for consumers. Simply put, the tax credit is an investment for economic growth and the creation of new jobs. Mr. President, my home state of Utah is home to many innovative companies that invest a significant percentage of their revenue in research and development activities. Scattered across the Wasatch front is a large stretch of software and computer engineering firms. This area is second only to California's Silicon Valley as a thriving high technology commercial area. Utah also has approximately 700 biotechnology and biomedical firms which employ nearly 9,000 workers. These companies were conceived through research and development and will continue to grow and thrive only if they can continue to afford to take risks. In all, Mr. President, there are approximately 80,000 employees working in Utah's 1,400 plus and growing technology based firms. Research and development is the lifeblood of these Utah firms and hundreds of thousands more throughout the Nation that are like them. The research and experimentation tax credit has been on the books for many years, and there is no doubt that it has proved beneficial to our Nation's technology enterprise. But, there is also no doubt that its benefits could be even greater if the credit were made permanent and the perennial uncertainty with respect to the availability of the credit--and thus the cost of doing research--were eliminated. With the introduction of this bill, I am pleased to inform you that we have included one slight change in this permanent extension. As already established, companies whose research efforts do not qualify them for the credit are allowed to choose the alternative incremental credit. The bill would increase the three alternative incremental credit rates by one percentage point each, thereby spurring tax credit benefits and encouraging more extensive research and development efforts. I am aware, Mr. President, that not every company that participates in the research and development process benefits from the credit. However, I believe that Congress should never permit the credit to expire. I urge my colleagues to support this concept of a permanent R&E credit by cosponsoring this legislation and support the type of research activities that will maintain American technological leadership into the 21st century. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I would like to be notified when 5 minutes have expired. I understand well the consternation of my good friends from Texas and California. My State of Utah has been there, too. We have suffered no less a proportionate loss of jobs and installations from the past Base Closing Commissions. The great difference here is we are a small State with just five electoral votes. The conference measure gives California and Texas, vote-rich States, something that Utah and other States never had, a second chance at life through a Presidential circumvention of the very BRAC process that the President himself previously enthusiastically supported. My friends from Texas and California had several months to work out a compromise. Under the threat of Presidential veto and Senate filibuster, the Armed Services Committee and the Senators and staff from such States as Alabama, Florida, Georgia, North Carolina, Oklahoma, and Utah, among others, the so-called depot States or depot caucus States, which included Texas and California on other issues, have accommodated our friends. We could not be more sympathetic to their losses, which, after all, involve real people and families. As I said earlier, we have all been there. But we have given them just about everything they want, even though-- I repeat, even though--what we give them we do in a zero-sum sense. That is because we are giving up something that our people won and earned from the BRAC process and must now share. Our generosity in this sense goes beyond mere fairness and magnanimity. It is closer to sacrifice. Let me tick off some of the sacrifices. We allow competition for work that was originally designated for our depots by BRAC. We allow the Air Force's tier I depot, Hill Air Force Base, which has the highest military value, to bid for something rightfully owed to Hill, against McClellan Air Force Base, a tier III depot, or an installation with the lowest military value, according to Air Force assessments. We allow these same tier III depots to bid to keep the work there despite the $400 to $700 million higher cost to the taxpayers that the GAO and the Air Force have identified. Mr. President, that is sacrifice. But I say enough is enough. It is one thing for us to squawk and scream at each other on the floor of the Senate. We need to move ahead now and address this matter in the way it should be addressed. Hill Air Force Base also hosts two Air Combat Command air tactical fighter wings, one of which is an Air Force Reserve unit. These units are rotating to fulfill this Nation's peacekeeping missions in the Middle East and in Bosnia. What does that mean to us here today? Military persons are required to put the mission before all else: personal well-being and safety, family, and virtually everything else that matters. So important is this commitment that we have constructed a separate body of law called the Uniform Code of Military Justice, which allows military and civilian authorities to enforce and defend, where necessary, the obligation of self-sacrifice. Cowardice or desertion in the face of the enemy, for example, carries severe penalties. Having imposed such heavy obligations on the courageous men and women of our Armed Forces, we now find ourselves delaying the availability of the equipment and means they need urgently to execute their missions. So this bill needs to pass. We should not hold up the $93.8 billion for operations and maintenance, which is to say troop training and equipment maintenance. We don't want to deny a pay raise of 2.8 percent for these folks in the military who need it so badly at a time when highly trained air crews are leaving at alarming rates. We don't want to deny bonuses based on years of service and skills or delay the implementation of studies to correct deeply rooted gender discrimination and abuses. Improvements of family housing, which is sometimes so awful I wince at some, we don't want to delay that. The President's request for $2.1 billion to move ahead on the F-22 program, the airplane to replace the F-15C, the work horse of the Air Force fleet, we don't want to delay that. I could go on and on. I believe my point is made. We in Utah made our sacrifices. We shouldn't have to make these sacrifices. The President should have lived up to BRAC to begin with. Delaying this bill means increased risk for military persons putting their lives on the line: We are holding up $93.8 billion for operations and maintenance, which is to say troop training and equipment maintenance. We are denying them a pay raise of 2.8 percent. At a time when highly trained air crews are leaving the services at alarming rates, we are denying bonuses based on years of service and skill levels. We are delaying the implementation of studies to correct deeply rooted gender discrimination and abuses. Improvements in family housing, which is sometimes so awful I wince in shame, are delayed. The President's request for $2.1 billion to move ahead on the F-22 program, the airplane that will replace the F-15C, the work horse of the Air Force fleet, will also be delayed. Mr. President, I can appreciate that my good friends from Texas and California want to protect the interests of their States. But, they want to change the rules of the game after they've lost in fair play. To help us make the really tough decisions about base closures, we created the BRAC process. We--Congress--created this mechanism to decide what bases to close and which to keep open. Congress itself selected several of the BRAC Commissioners; and, I heard no grievances about the criteria used by the Commission to make its recommendations. The process enjoyed the support of Congress and the administration. And, I believe that it has been managed by fair- minded men and women and staffed by nonpartisan, skilled analysts. It is probably about as objective a decisionmaking process as you are going to get. During the BRAC 95 round, it was determined that Kelly and McClellan should be closed. I can understand why my colleagues from Texas and California are not happy about that--I was not happy when previous BRAC rounds put Tooele Army Depot and Defense Depot Ogden on the closure list. But, so far, those of us who represent States that have lost bases because of BRAC have not tried to jury-rig a method for keeping Federal dollars coming to a base on the closure list. The Clinton administration has inexcusably tampered with this process. In proposing privatization in place, the Clinton administration put electoral politics ahead of the integrity of the BRAC process, weakening the investment value of already shrinking defense dollars. No one has greater cause for protest on this floor than my colleague from Utah and myself. Utah, along with Oklahoma and Georgia, have been made the real victims of the President's tampering with this process. In the case of Utah, the administration's original proposal would have starved Hill Air Force Base of the work needed to maintain its own efficiency. The Ogden Air Logistics Center at Hill AFB is rated by the Air Force as its No. 1 depot. It received a tier I rating, meaning it has the highest military value. By contrast, Kelly and McClellan were rated as tier III installations, those having the lowest military value. The original changes to BRAC proposed by the President could have been made only by dismissing merit as a criteria. It is no different than telling a grade school student that, although he or she is the top academic performer in the class, the honors will go to a less proficient teacher's pet. It is no wonder that the workers at these depots are offended by this message. The American Federation of Government Employees [AFGE] has vigorously opposed privatization in place --not just because private contractors would be allowed to take over work, but also because the quality of their work and the dedication of their members to America's defense has been given such short shrift. Nevertheless, Mr. President, Utah has a proud legacy of strength in adversity. The great majority of Utahns are descended from pioneers who pulled handcarts halfway across America. Utahns came together with ideas and resources and determination to overcome defense losses. We have long since absorbed the more than 5,000 jobs that previous BRAC's and DOD downsizing have cost us. Our losses are just about proportionate to those experienced by defense closures in Texas and California, considering the relatively smaller size of our workforce. But, I would like to point out that Utahns were working without a net. A net that the Clinton administration has graciously--but without justification, in my opinion--provided to Texas and California in this latest BRAC round. But, now let's talk about the compromise adopted by the Armed Services Committee in this legislation. First of all, as my remarks would indicate, I am strongly opposed to this sleight of hand known as privatization in place. I simply do not see that Federal dollars to contractors to perform the same work done by Kelly and McClellan--and which should have been redistributed to Hill, Warner-Robins, and Tinker--is a savings. Instead of consolidating, all that is achieved with this policy is maintained excess capacity. GAO reported that this concept would actually cost $468 million per year. Instead of five depots with excess capacity, we now have three depots and private contractors at Kelly and McClellan. This effectively locks in excess capacity at the three remaining depots and would sign their eventual death warrant. Let's be clear about one thing: This conference report does not repudiate privatization in place. It does not consolidate workload. Score a big one for President Clinton and for my Texas and California colleagues. But, though I would cheerfully chuck this whole concept, I can accept the compromise plan developed by the conferees. The provisions in the conference report at least allow fair competition for the maintenance work and will not stack the deck against Utah and the other similarly affected States. In my view, Utahns can compete with anyone. Our work force, our technology, our efficient State and local governments, and our cooperative spirit have been staples of the Utah economy. Some of the fruits of that spirit are the facts that: Salt Lake City was selected--after one of the toughest competitions you can imagine--to host the Winter Olympic Games in the year 2002; Business Week has called Utah the software valley of the world; Utah has the highest educational level in the country, according to the U.S. Bureau of Labor Statistics; We are ranked second in the Nation in job creation; We are second in economic growth, which for 1997 is estimated at 6.9 percent. This is well above the 2.5 percent average economic growth rate for all States, according to the U.S. Labor Department; Despite our small size and being an insular State, 17 percent of the adult population speak a foreign language, many fluently. Utah is the site of the Army's only linguist brigade, a reserve unit that in wartime will bring forward nearly 3,000 accomplished speakers of more than 20 languages. And, I might mention that the city of Provo, UT, beat out New York City and Los Angeles as the site selected by the Army to locate this unit. These achievements do not entitle my State to anything. There should never be any guarantees--no free passes. But, this exemplary track record does mean Utah has earned the chance to compete fairly, without having to play by rules that do not apply to others. The Air Force knows the value of Utah well. The BRAC Commissioners learned it quickly. And the workers from Kelly and McClellan understandably wanted to share it. Utah's military value is unmatched. Our former colleague, Senator Jake Garn, fostered its development as a defense technology mecca. Former Governor Norm Bangerter added 20,000 aerospace jobs to the State during his tenure, which ended in 1992. Today, Congressman Jim Hansen, a longtime member of the House National Security Committee, has led the effort to sustain the high quality of Utah's defense installations. Mr. President, Utah has made a commitment to national defense. I am in no way questioning the motivation of others who have enjoined this debate; but, the level of investment and record of excellence exhibited by Hill, Warner-Robins, and Tinker, is a reason for making sure that the Federal Government conducts a fair competition. This conference report sets the stage for an acceptable process of fair competition. I expect that the Clinton administration will judiciously carry it out, and I will, of course, be following the implementation of these competitions closely. We have crafted a compromise that goes beyond mere equity and fairness. Utah, Oklahoma, and Georgia, after all, are directed to give up something they've earned--which is the right to perform the work BRAC stated they should have. That is an indisputable fact. And, perhaps this is a good time to remind my colleagues who do not believe that they have a dog in this fight that, if the rules can be changed to put Utah, Georgia, and Oklahoma at a competitive disadvantage, they can be changed to put your State at a disadvantage as well. Tampering with the BRAC process is a slippery slope. Back in July, I questioned Air Force Deputy Secretary Rudy DeLeon regarding several competition procedures. I ask unanimous consent to enter these questions and his responses for the Record, Mr. President. I accept Mr. DeLeon's responses as commitments by the Air Force. I am pleased that these commitments have been incorporated in principle or in explicit language in the depot provisions of the bill. The only exception regards the protest rights of the bidders. Under the President's original plan, public depot bidders, like Utah's Hill and Oklahoma's Tinker, would have been denied the normal rights of protest available to private bidders. Under the conference agreement, any public depot-private contractor team could pursue a protest through the inherent rights available to the private team member. In closing, Mr. President, I want to say that I intend to audit, oversee, and examine the details of each competition in the most minute detail. I will insist not only on compliance with the letter of every appropriate competition statute and regulation, but also with the nonstatutory language and other administration commitments found elsewhere in the legislative history of this debate. The danger of compromise is that those who implement it have the ability to spin things their own way. Members of both the House and Senate Armed Services Committee have invested significant blood and sweat on this issue. I appreciate the extraordinary effort by Senators Thurmond, Warner, and Levin. I also want to acknowledge the assistance of Senator Lott. Every now and then we needed a referee, and he was a fair one. At the end of the day, I believe we have come up with a compromise that is workable, and I have every expectation that the President will agree. It has also been a pleasure working with my colleagues from Oklahoma and Georgia, and, of course, my partner from Utah, Bob Bennett. Last, but not least, I want to thank my colleague, the senior Utahn in the House, Congressman Jim Hansen. Jim fought his guts out to make sure that Hill Air Force Base has a fair chance. And, I don't think this issue could have been as successfully resolved without his work in the other body. Mr. President, I believe we have reached a satisfactory resolution of this thorny issue. I urge all Senators to support it. Mr. President, I ask unanimous consent questions and answers in the Senate Armed Services Committee confirmation hearing be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise this morning to discuss the nomination of Mr. Bill Lann Lee of California to be President Clinton's Assistant Attorney General for Civil Rights. Let me say at the outset that, in my 5 years as the senior Republican on the Judiciary Committee, I have been proud to have advanced no less than 230 of President Clinton's nominees to the Federal courts. After a thorough review of these nominees' views and records, I have supported the confirmation of all but two of them. In addition, I have also worked to ensure that President Clinton's Justice Department nominees receive a fair, expeditious, and thorough review. Without question, the Senate's advice and consent responsibility is one that I take very seriously. This nomination is no exception. While I have the highest personal regard for Bill Lann Lee, his record and his responses to questions posed by the committee suggest a distorted view of the law that makes it difficult for me in good conscience to support his nomination to be the chief enforcer of the Nation's civil rights laws. The Assistant Attorney General must be America's civil rights law enforcer, not the civil rights ombudsman for the political left. Accordingly, when the Judiciary Committee votes on whether to report his nomination to the full Senate, I will regretfully vote ``no''. At the outset, I want to say that no one in this body respects and appreciates the compelling personal history of Mr. Lee and his family more than I. Mr. Lee's parents came to these shores full of hope for the future. They believed in the promise of America. And despite meager circumstances and the scourge of bigotry, they worked hard, educated their children, and never lost faith in this great country. Yet, what we must never forget as we take up this debate is that the sum of our experiences says less about who we become than does what we take from those experiences. For example, my good friend Justice Clarence Thomas was, like Mr. Lee, born into a circumstance where opportunities were unjustly limited. Nevertheless, Clarence Thomas worked hard, and has devoted his career to ensuring that the law protects every individual with equal force. The same can be said of another African-American, Bill Lucas, who was nominated by President Bush for the same position as Mr. Lee, but whose nomination was rejected by my colleagues on the other side of the aisle. Bill Lann Lee is, to his credit, an able civil rights lawyer with a profoundly admirable passion to improve the lives of many Americans who have been left behind. His talent and good intentions have taken him far. But his good intentions should not be sufficient to earn the consent of this body. Those charged with enforcing the Nation's laws must demonstrate a proper understanding of that law, and a determination to uphold its letter and its spirit. Unfortunately, much of Mr. Lee's work has been devoted to preserving constitutionally suspect race-conscious public policies that ultimately sort and divide citizens by race. To this day, he is an adamant defender of preferential policies that, by definition, favor some and disfavor others based upon race and ethnicity. At his hearing before the Judiciary Committee, Mr. Lee suggested he would enforce the law without regard to his personal opinions. But that cannot be the end of our inquiry. The Senate's responsibility is then to determine what the nominee's view of the law is. That question is particularly important for a nominee to the Justice Department's Civil Rights Division. II. Civil Rights Division As I have made clear in the past, it is my view that the Assistant Attorney General for Civil Rights is one of the most important law enforcement positions in the Federal Government. No position in Government more profoundly shapes and implements our Nation's goal of equality under law. The Civil Rights Division was established in 1957 to enforce President Eisenhower's Civil Rights Act of 1957, the first civil rights statute since Reconstruction. Since the appointment of the first Assistant Attorney General for Civil Rights, Mr. Harold Tyler, the Division has had a distinguished record of enforcing the Nation's civil rights laws, often against perilous political odds. With great leaders like Burke Marshall, John Doar, and Stanley Pottinger, the Civil Rights Division emphasized the equality of individuals under law, and a commitment to ensuring that every American--regardless of race, ethnicity, gender, national origin, or disability--enjoys an equal opportunity to pursue his or her talents free of illegal discrimination. That is a commitment that I fundamentally share, and take very seriously as I consider a nominee to this important Division. Today, however, the Civil Rights Division, and the Nation's fundamental civil rights policies, stand at a crossroads. In recent years, the Nation's courts have underscored the notion that the constitutional guarantee of equal protection applies equally to every individual American. Consistent with that principle, they have placed strict limitations on the Government's ability to count among its citizens by race. Nevertheless, many among us who lay claim to the mantle of civil rights would have us continue on the road of racial spoils--a road on which Americans are seen principally through the looking glass of race. I regret to say that Bill Lee's record suggests that he too wishes the Nation to travel that unfortunate road. The country today, however, demands a Civil Rights Division devoted to protecting us all equally. It cannot do that when it is committed to policies that elevate one citizen's rights above another's. Let me share one example of what results from the race-consciousness that some, Bill Lann Lee among them, would have us embrace. Earlier this year, the Judiciary Committee held a hearing to examine the problem of discrimination in America. One story, that of Charlene Loen was particularly moving. Ms. Loen is a Chinese-American mother of two who lives in San Francisco. Ms. Loen's son Patrick was denied admission to a distinguished public magnet school in San Francisco, pursuant to the racial preference policy contained in a consent decree which caps the percentage of ethnic group representation in each of the city's public schools. The cap has the effect of requiring young, Chinese students to score significantly higher on magnet school entrance exams than students of other races. While young Patrick scored higher than many of his friends on the admissions exam, he was denied admission, while other children who scored less well were admitted. Ms. Loen sought to have Patrick admitted to several other public magnet schools in the city, and time after time she was told in no uncertain terms that because he was Chinese, Patrick need not apply. So you see, a policy that prefers one, by definition disfavors another. In this case, the disfavored other has a name, Patrick. The law must be understood to protect Patrick, and others like him, no less than anyone else. What matters under the law is not that Patrick is ethnic Chinese, but that he is American. Affirmative action policies as originally conceived embraced that ideal. Recruiting and outreach that ensures broad inclusion is one thing; racial and gender preferences that enforce double standards are quite another. But the case against Bill Lee is broader, and more fundamental, than his aggressive support for public policies that sort and divide by race. What Bill Lee's record fundamentally suggests is a willingness to read the civil rights laws so narrowly--and to find exceptions so broad--as to undermine their very spirit, if not their letter. Let me share a few cases to illustrate the point. III. Adarand At his hearing, Mr. Lee was asked about the Supreme Court's holding in the case of Adarand Constructors versus Pech, in which the Supreme Court held that State-sanctioned racial distinctions are presumptively unconstitutional. When asked to state the holding of the case, Mr. Lee said that it epitomizes the Supreme Court's view that racial preference programs are permissible if ``conducted in a limited and measured manner.'' That is, arguably, a narrowly correct statement. But it purposefully misses the mark of the Court's fundamental holding that such programs are presumptively unconstitutional. Imagine if a nominee had come before this body and stated for the record that the Court's first amendment cases stand for the proposition that the state can interfere with religious practices if it does so carefully. Such a purposefully misleading view would properly be assailed as a fundamental mischaracterization of the spirit of the law. So, too, is Mr. Lee's view of the Supreme Court's statements about racial distinctions enforced by the Government. In addition, Mr. Lee stated for the record his personal opposition to Adarand. He then said that in spite of that, he would enforce the law, if confirmed. Fair enough. But, in response to a written question from Senator Ashcroft, Mr. Lee's narrow view of what the law is becomes astonishingly clear. Senator Ashcroft asked Mr. Lee whether the program at issue in the Adarand case is unconstitutional. Mr. Lee noted that the Supreme Court in Adarand remanded the case to the district court in Colorado. He further noted that the district court just this summer held that the programs in question are not narrowly tailored and are therefore unconstitutional. In so holding, the court stated in its opinion that [c]ontrary to the [Supreme] Court's pronouncement that strict scrutiny is not ``fatal in fact,'' I find it difficult to envisage a race-based classification that is narrowly tailored. But despite the court's strong pronouncement, Mr. Lee asserts in his response to Senator Ashcroft that he believes ``this program is sufficiently narrowly tailored to satisfy the strict scrutiny test.'' Apparently, then, Mr. Lee is prepared to support racial preference programs until every possible exception under the law is unequivocally foreclosed by the Supreme Court, despite the Court's view that such programs are presumptively unconstitutional and may only be used in exceptional circumstances. Mr. Lee's view of the law, it seems to me, is exceedingly narrow and violative of the Court's rulings and holdings. We must expect more of the Nation's chief civil rights law enforcer. IV. Proposition 209 I realize that some still embrace policies that divide and sort by race. And given the court's narrow exception in Adarand, I am willing to consider a nominee who believes such policies may be constitutional in limited circumstances. It is fair that that view is heard. Yet, it is quite another matter altogether when a nominee takes the position that the contrary view--that racial preferences should be prohibited--is unconstitutional. Such a view of the law effectively silences dissenting voices on this, the most important civil rights issue of our day. Mr. Lee and his organization, the Western Office of the NAACP Legal Defense & Educational Fund, have led the opposition to California's proposition 209, which said simply that no Californian can be discriminated against or preferred by the State on the basis of race, gender, or national origin. He has also challenged the University of California's efforts to comply with its colorblindness mandate, by complaining to the Federal Department of Education that the University's race-neutral use of standardized tests and weighted grade point averages violates the civil rights laws. Even the anti-209 director of admissions at the UCLA School of Law, Michael Rappaport, has described the NAACP's complaint as ``frightening'' for universities wishing to employ rigorous academic standards. That complaint is only part of a comprehensive effort by Mr. Lee and his organization to undermine the people of California's political judgment that their government should respect the rights of citizens without regard to race. Soon after 54 percent of Californians voted to pass proposition 209, Mr. Lee's office filed a brief in the Federal court action challenging the constitutionality of the initiative, relying on the cases of Hunter versus Erickson--fair housing legislation--and Washington versus Seattle--busing--to allege that 209 was an unconstitutional restructuring of the political process because minorities are no longer permitted to petition local governments for preferential treatment. Of course, the Ninth Circuit Court of Appeals--perhaps the most liberal circuit court in the Nation--forcefully and unequivocally rejected that argument, noting that governmental racial distinctions are presumptively unconstitutional, and concluded: As a matter of ``conventional'' equal protection analysis, there is simply no doubt that Proposition 209 is constitutional. . . . After all, the ``goal'' of the Fourteenth Amendment, ``to which the Nation continues to aspire,'' is ``a political system in which race no longer matters'' (citation omitted). . . . The Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits. (Coalition for Economic Equity, et al. v. Wilson, 122 F.3d 692 [9th Cir. 1997].) Earlier this year, the Clinton administration filed an amicus brief in the ninth circuit supporting the constitutional challenge so decisively rejected by the appeals court. I asked Mr. Lee whether, given the Supreme Court's holding in Adarand and the forceful statement of law by the ninth circuit, he would argue against the administration's continued challenge to prop 209's constitutionality. He said he would support the administration's position. After Mr. Lee's hearing, I took it upon myself to offer an olive branch to the administration. I emphasized the fundamental problem I have with Mr. Lee's and the administration's view of the Constitution as it relates to racial matters. I suggested that if this White House could find its way to put aside the now-discredited argument that efforts like prop 209 actually violate the Constitution, that it would be much easier for my colleagues and me to support this nomination. It certainly would be something that would be helpful. On Wednesday of last week, I received a letter from Mr. Lee explaining that he would recuse himself from the administration's deliberations about its policy in the specific prop 209 case. And just yesterday, of course, the Supreme Court declined to grant certiorari in the 209 case. But, important as they are, those gestures do not lessen my fundamental concern about Mr. Lee's view on the matter. Those developments do nothing to preclude the administration from challenging future colorblindness efforts in the States, or in the Congress-- including my and Senator McConnell's Civil Rights Act of 1997; they do nothing to provide much needed leadership within the Department on this most important policy issue--creating yet another leadership void within the Department; and at bottom, Mr. Lee's letter seems little more than a cynical ploy by the administration to momentarily ease Mr. Lee's way to confirmation, while doing nothing to address my underlying, substantive concerns about his interpretation of the law. In the final analysis, my concerns about Mr. Lee's record are vastly broader than simply how he might counsel the administration in one discrete case. V. Prison Litigation Reform Act Mr. Lee was also asked for his views on the Prison Litigation Reform Act, a piece of legislation that I sponsored and worked hard to pass in the last Congress. In response to written questions from Senator Abraham about the Department's enforcement of the PLRA, Mr. Lee either defended unjustified Department positions, or evaded the questions altogether. The PLRA establishes a 2-year limitation on most consent decrees governing prison operations. If after the 2 years, a constitutional violation continues to exist, the law provides that a prisoner may petition a court to extend the term of the decree. When asked whether the Department was correct to argue that PLRA places the burden of proof on a defendant seeking to be relieved from a prison consent decree to prove that constitutional violations no longer exist, rather than on a prisoner seeking extension of a decree to show that violations continue to exist, Lee argued that the Department's ``approach seems sensible to me.'' But the Department's approach undermines the spirit of the law, which places limits on judicial control of our prisons absent proof of a continuing constitutional violation. Mr. Lee's support for the Justice Department's efforts to undermine the effectiveness of the Prison Litigation Reform Act further justify opposition to his nomination. This view is yet another example of Mr. Lee's approach to the law, which suggests that when confronted with a law he doesn't like, he creatively interprets the law in the narrowest possible fashion, to allow him to pursue his ends contrary to the spirit, if not the letter, of the law. That is unacceptable for one seeking to enforce the Nation's civil rights laws. VI. Los Angeles Consent Decree case I am also troubled by Mr. Lee's involvement in an apparent effort to rush through a consent decree in Los Angeles that would have bound the city to racial and gender hiring goals for 18 years. Mr. Lee and other attorneys in the case sought to have the proposed consent decree approved by the city council and then by a magistrate judge on the very day that the citizens of California were voting on proposition 209. Proposition 209 would quite likely prohibit enforcement of the goals in the proposed decree. But by its terms, the proposition does not apply to consent decrees in force prior to its effective date. The decree was taken to the magistrate without notice to the district judge presiding over the case, as was required by local court rules; and more importantly in my view, Mr. Lee sought to have the decree approved without a fairness hearing to assess the impact of the decree on individuals who might in the future be affected by its terms, but who were not represented in the negotiations. It should be noted that even Los Angeles Mayor Richard Riordan, a supporter of Mr. Lee's nomination, and then-Los Angeles Police Commission President Raymond Fisher, the President's nominee to be Associate Attorney General, both opposed the proposed decree. Mayor Riordan expressed concern about the scope of outside enforcement authority under the decree, and Mr. Fisher called the decree ``extremely intrusive to the operations of the [police] department.'' To seek even partial approval of a decree raising such concerns, without benefit of a fairness hearing, raises legitimate questions. The district court judge, learning of the parties' ploy through media accounts, resumed control over the case, citing the significance of a decree that would bind a government for 18 years, and remarked that the decree ``may present substantial constitutional questions.'' The judge later noted in a memorandum order that . . . the unusual procedures employed by the existing parties in this case--seeking same-day approval of the Proposed Decree and requesting that no fairness hearing be held--certainly raise alarm bells about the adequacy of their representation [of potentially affected individuals not represented in the negotiations]. Mr. President, the very core of what we must expect of an Assistant Attorney General for Civil Rights is a steadfast concern that every individual be treated fairly--equally--under our laws. Mr. Lee's involvement in an effort to lock in 18-year racial hiring goals for public employment without an opportunity first to consider the impact of that race consciousness on individuals who may fall on the wrong side of those goals, suggests a willingness to place group representation above the rights of individuals to be treated equally under the law. As Senators sworn to uphold the Constitution, we have a responsibility to reject that priority for the Nation's defender of civil rights. While I do not question Mr. Lee's integrity, I am concerned about his commitment to serve every citizen of the Nation in equal measure. Selecting an Assistant Attorney General for Civil Rights should not be a simple coronation of an effective civil rights litigator for a leading activist organization. Enforcing the Nation's laws on behalf of every American citizen is a profoundly different role. Despite that, Mr. Lee seems simply unable to distinguish his role as NAACP activist litigator, and the role of Assistant Attorney General. When asked by the Judiciary Committee to list cases he filed at the LDF which he would not file as Assistant Attorney General, Mr. Lee simply replied that, as a jurisdictional matter, he could not bring State law claims as Assistant Attorney General. Everything else is apparently fair game. Clearly then, Mr. Lee is unable to distinguish the substantive role of law enforcer for all citizens from that of a private activist litigator charged with pushing the limits of the law. That is unacceptable for an individual seeking to take the reins of the Civil Rights Division's massive enforcement apparatus. VII. Deval Patrick and Consent Decree Activism Mr. Lee's supporters have characterized him as a ``pragmatist''--a ``practical litigator,'' rather than a pro-preference ideolog. That is a familiar tune in this debate. Three years ago, the President nominated another individual who was widely hailed as a pragmatist. Deval Patrick, another man for whom I have a high personal regard, was described by one paper as ``a practically oriented working lawyer.'' Based upon those assurances, I resolved to set aside my concerns about Mr. Patrick's views, gave him the benefit of the doubt, and supported his nomination. But upon assuming the reins of the Civil Rights Division, Mr. Patrick revealed himself to be a liberal civil rights ideolog. He used statistical racial imbalances and the vast resources of the Justice Department to extract race-conscious settlements from businesses and governments, large and small. For example, he undertook a credit-bias probe of Chevy Chase Savings & Loan in Maryland based largely on the fact that the bank had opened branch offices in the District of Columbia suburbs, but not in the city itself. There was no evidence that the bank had discriminated against qualified individuals seeking bank services. Nevertheless, Mr. Patrick entered into a consent decree that essentially forced the bank to open a branch in a low-income District neighborhood, and measures the bank's compliance with the decree by assessing whether the the bank achieves a loan market share in minority neighborhoods that is reasonably comparable to its share in nonminority neighborhoods. Mr. Patrick's Civil Rights Division took it upon itself to decide where a bank must do business, and then implemented dubious statistical measurements to determine whether the bank's efforts stayed clear of the division's view of the law. Mr. Patrick also forced municipalities across the country to abandon tests used to evaluate candidates for local police forces. In Nassau County, NY, Patrick entered into a consent decree that forced the county to abandon a rigorous test that yielded a differential passage rate for different ethnic groups. The test now used by the county, after the expenditure of millions of dollars in the action, is so weak that the reading portion of the exam is now graded on a pass/fail basis. A candidate passes the reading test if he or she reads at the level of the lowest 1 percent of existing officers. So much for high standards. In another case, Mr. Patrick ordered Fullerton, CA to set-aside 9 percent of its police and fire department positions for African- Americans, despite the fact that fewer than 2 percent of the city's residents are black. These cases suggest the damage that can be done when the resources of the Justice Department are brought to bear to force defendants into consent decrees. Such decrees are often attractive to both parties. Preference ideolog in the Justice Department win so-called voluntary commitments to undertake constitutionally suspect race-conscious action to eliminate racial disparities; defendants save millions of dollars in legal fees and receive a public disclaimer of liability. Everyone wins, except for consumers and individuals on the losing end of the racial or gender goals and preferences. Given Deval Patrick's excesses in the Department, I am unprepared to again give the benefit of the doubt to a liberal activist nominee described by political allies as a pragmatist and a conciliator. When asked at his hearing how he would differentiate his views from those of Mr. Patrick, Bill Lee was unable to muster a response. VIII. Conclusion I am sad to say, Mr. President, that Bill Lann Lee has fallen victim to President Clinton's double-talk on the issue of racial and gender preferences. In the wake of the Adarand decision, the President pledged to ``mend it, not end it.'' In practice, however, the President's policy on preferences can more accurately be described as ``don't mend it, extend it.'' In fact, while the Congressional Research Service tells us that there are at least 160 Federal programs containing presumptively unconstitutional racial preferences, the President has seen fit to eliminate fewer than a handful of them. When Mr. Lee was asked to suggest real or hypothetical Federal programs that may not meet constitutional muster, he was able to come up with a whopping one--one that the Clinton administration had already seen fit to eliminate. In fact, the Clinton administration has sought to pitch Mr. Lee, and itself, as something they simply are not--centrists on civil rights policy. In the end, my decision today is an unhappy one. It brings me no pleasure to oppose the nomination of this fine activist lawyer and this very fine human being. But fine human beings--and certainly fine lawyers--can make mistakes. And they can approach the law in a way that is flawed, and that disserves the laws they are sworn to uphold. That is the case with this nomination. Bill Lann Lee's long record of public service must ultimately be reconciled with the role he seeks. The Assistant Attorney General is America's civil rights law enforcer, not an advocate for the political left. Unfortunately, Mr. Lee's understanding of the Nation's civil rights laws is sufficiently cramped and distorted to compel my opposition. The Assistant Attorney General for Civil Rights must abide by the law. In matters ranging from racial preferences, to proposition 209, to the Prison Litigation Reform Act, Mr. Lee has demonstrated a decided reluctance to enforce our Nation's civil rights laws as intended, and in some cases his litigation efforts expose an outright hostility to it. The Civil Rights Division requires a better approach, and our courts, the Senate, and the Nation demand it. It is for that reason that I must oppose this unfortunate nomination. Mr. President, I ask unanimous consent that I be permitted to enter into the Record several items that echo my concerns about Mr. Lee's record. I would like to enter a letter from 16 Republican members of the California congressional delegation; a statement from California Gov. Pete Wilson; and letters from Mr. Ward Connerly of the American Civil Rights Institute in California, and Ms. Susan Au Allen, president of the U.S. Pan-Asian American Chamber of Commerce.

Mr. HATCH. Mr. President, I yield the floor. Mr. ROBERTS addressed the Chair.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to laud the Senate passage of H.R. 672. This legislation, which was introduced by Congressman Coble in the House of Representatives, is the counterpart to legislation I introduced in the Senate on March 20 of this year--the Copyright Clarification Act of 1997, S. 506. The Copyright Clarification Act was reported unanimously by the Senate Judiciary Committee on April 17. The purpose of these bills is to make technical but needed changes to our Nation's copyright laws in order to ensure the effective administration of our copyright system and the U.S. Copyright Office. The need for these changes was first brought to my attention by the Register of Copyrights, Marybeth Peters, and I want to thank her for her outstanding work. Among the most important amendments made by H.R. 672 is a clarification of the Copyright Office's authority to increase its fees for the first time since 1990 in order to help cover its costs and to reduce the impact of its services on the Federal budget and the American taxpayer. This clarification is needed because of ambiguities in the Copyright Fees and Technical Amendments Act of 1989, which authorized the Copyright Office to increase fees in 1995, and every fifth year thereafter. Because the Copyright Office did not raise its fees in 1995, as anticipated, there has been some uncertainty as to whether the Copyright Office may increase its fees again before 2000 and whether the baseline for calculating the increase in the consumer price index is the date of the last actual fees settlement--1990--or the date of the last authorized fees settlement--1995. H.R. 672 clarifies that the Copyright Office may increase its fees in any calendar year, provided it has not done so within the last 5 years, and that the fees may be increased up to the amount required to cover the reasonable costs incurred by the Copyright Office. Although H.R. 672 does not require the Copyright Office to increase its fees to cover all its costs, I believe it is important in that it provides the Copyright Office the statutory tools to become self- sustaining--a concept that I promoted in the last Congress. Currently the Copyright Office does not recover the full costs of its services through fees, but instead receives some $10 million in annual appropriations. Several studies have supported full-cost recovery for the Copyright Office. For example, a 1996 Booz-Allen & Hamilton management review of the Library of Congress recommended that the Copyright Office pursue full-cost recovery, noting that the Copyright Office has been subject to full-cost recovery in the past and that the potential revenues to be derived from pursuing a fee-based service was significant. A 1996 internal Copyright Office management report prepared by the Library of Congress also recommended full-cost recovery for copyright services. The Congressional Budget Office has also suggested full-cost recovery for the Copyright Office as a means of achieving deficit reduction. These recommendations were endorsed by the General Accounting Office in its recent report, ``Intellectual Property, Fees Are Not Always Commensurate with the Costs of Services.'' It is my understanding that the Copyright Office has embraced the goal of achieving full-cost recovery for its copyright services. H.R. 672 will provide the authority to achieve that goal, and by passing this legislation this year, the Copyright Office will be able to move expeditiously to adjust their fees for the coming year. I also want to note the importance of the amendment which the Senate has adopted to H.R. 672 to overturn the ninth circuit's decision in La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995), cert denied, 116 S. Ct. 331 (1995). My colleagues will recall that Senator Leahy and I introduced this legislation in March of this year as a provision of S. 505, the Copyright Term Extension Act of 1997. In general, LaCienega held that distributing a sound recording to the public--by sale, for example--is a ``publication'' of the music recorded on it under the 1909 Copyright Act. Under the 1909 Act, publication without copyright notice caused loss of copyright protection. Almost all music that was first published on recording did not contain copyright notice, because publishers believed that it was not technically a publication. The Copyright Office also considered these musical compositions to be unpublished. The effect of La Cienega, however, is that virtually all music before 1978 that was first distributed to the public on recording has no copyright protection--at least in the ninth circuit. By contrast, the second circuit in Rosette v. Rainbo Record Manufacturing Corp. 546 F.2d 461 (2d Cir. 1975), aff'd per curiam, 546 F.2d 461 (2d Cir. 1976) has held the opposite--that public distribution of recordings was not a publication of the music contained on them. As I have noted, Rosette comports with the nearly universal understanding of the music and sound recording industries and of the Copyright Office. Since the Supreme Court has denied cert in La Cienega, whether one has copyright in thousands of musical compositions depends on whether the case is brought in the second or ninth circuits. This situation is intolerable. Overturning the La Cienega decision will restore national uniformity on this important issue by confirming the wisdom of the custom and usage of the affected industries and of the Copyright Office for nearly 100 years. In addition to these two important provisions, H.R. 672 will: First, correct drafting errors in the Satellite Home Viewer Act of 1994, which resulted from the failure to take into account the recent changes made by the Copyright Tribunal Reform Act of 1993, and which mistakingly reversed the rates set by a 1992 Copyright Arbitration Royalty Panel for Satellite carriers; Second, clarify ambiguities in the Copyright Restoration Act dealing with the restoration of copyright protection for certain works under the 1994 Uruguay Round Agreements Act; Third, ensure that rates established in 1996 under the Digital Performance Rights in Sound Recordings Act will not lapse in the event that the Copyright Arbitration Royalty Panel does not conclude rate- setting proceedings prior to Dec. 31, 2000. Fourth, restore definition of ``jukebox'' and ``jukebox operator,'' which were mistakingly omitted when the old jukebox compulsory license was replaced with the current negotiated jukebox license; Fifth, revise the currently unworkable requirement of a 20-day advanced notice of intent to copy right the fixation of live performances, such as sporting events; Sixth, clarify administrative issues regarding the operation of the Copyright Arbitration Royalty Panels; Seventh, provide needed flexibility for the Librarian of Congress in setting the negotiation period for the distribution of digital audio recording technology [DART] royalties; and, Eighth, make miscellaneous spelling, grammatical, capitalization and other corrections to the Copyright Act. Mr. President, this is important legislation, and I am pleased the Senate has acted to approved it prior to adjourning this fall. I wish to thank my colleagues and to encourage the House to accept the Senate amendment and to forward H.R. 672 to the President for his signature without delay.

Mr. HATCH

Mr. HATCH. Mr. President, it is with great pleasure that I endorse the nomination of Charles Siragusa who has been nominated by President Clinton for the position of U.S. District Judge for the Western District of New York. Judge Siragusa comes before the Senate with an already distinguished record having served on the New York supreme court since 1993. In that position, he has presided over both civil cases and criminal cases. He is currently assigned full time to the criminal division. Judge Siragusa is not only a seasoned jurist, but he is also an experienced trial lawyer. He has extensive litigation experience having first been an assistant district attorney and then later serving as a first assistant district attorney in the Monroe County district attorney office from 1977 to 1992. I am sure my colleagues will agree that he is well qualified for a position on the Federal bench for many reasons not the least of which because he is someone who has had the practical experience of having tried approximately 100 cases as lead trial counsel. I might add that 95 percent of those cases were jury trials and many of them involved homicides. Judge Siragusa also brings the experience of having been a teacher of sixth graders and junior high school from 1969 to 1973, in Rochester, NY. I am sure that job taught him great patience--a skill that might come in handy someday on the Federal bench. He is also active in his community. Judge Siragusa is a member of numerous organizations including the Jewish Community Center; the New York District Attorney Association; the Monroe County Bar; the Rochester Inn of Court; Jury Advisory Commission; and the Association Justices Supreme Court in New York. Judge Siragusa graduated cum laude from LeMoyne College in 1969 having earned a bachelor of arts sociology, and his juris doctorate from Albany Law School in 1976. He has two published writings, in addition to his other than judicial opinions--one entitled ``Prosecution of a Serial Killer;'' and the other being, ``View from the Bench'' that appeared in Rochesterian Magazine. I would also like to add that Judge Siragusa's nomination might have been before the Senate sooner, but for the fact that when the Judiciary Committee first tried to schedule a hearing on his nomination my staff had a bit of trouble locating him. We later learned that he was in Aruba on his honeymoon. Congratulations, Judge Siragusa. I am confident that Judge Siragusa will be a worthy addition to the bench of the Federal District Court in the Western District of New York. I am very pleased that the Senate has scheduled a vote on his nomination, which I am happy to support. He is also supported by Senator Moynihan and Senator D'Amato. I urge my colleagues to do the same. Mr. BURNS addressed the Chair.

Mr. HATCH

Mr. HATCH. Madam President, I have been very interested in this debate because we went through three BRAC processes and, now, all of a sudden, we find it turned upside down. Let me respond to the Senators from Texas, especially Senator Gramm. I have always appreciated his dogged defense of competition. Generally, I am right there with him. That is why I truly regret that I must differ with him on his interpretation that the conference report is, in his words, anticompetitive. There is fair competition and there is unfair competition. The conference report proposes fair competition. Let us look at how the conference report differs from the privatization-in-place language initially proposed by the Clinton administration. First, the conference report requires that all the costs of operation be factored into the bids. What honesty is there in a bid that excludes certain costs? Well, you got that right--none. Privatization in place, as originally proposed, would have permitted certain contractors from excluding the costs of the facilities themselves in Texas and in California. Naturally, these contractors would be able to submit artificially low bids. This would be an unfair disadvantage to the successful depots, which had already justified their existence through three separate BRAC processes, because excess capacity will inflate their hourly costs. Second, the Base Closing and Realignment Commission, the BRAC, recommended the closure of Kelly and McClellan and that the work be distributed to the three remaining depots. Instead of consolidating work as BRAC recommended, privatization in place merely masks greater inefficiency. Privatization in place may sound like competition, but it is not fair competition. And it is not very prudent. Let me ask my colleagues: How is it a cost saving if private companies are able to take over the work of Kelly and McClellan under contract to the Government? I realize that this is something of a sleight of hand, so let me review the concept. If you have a subsidiary plant that is not working to capacity, the normal business decision would be to close it down and redistribute the work to the other more efficient plants, which was what BRAC was all about. But under the original Clinton plan, the work would simply be bid out to others. There is no closure of the facility, and you are paying others for the work. And, you have to ask, what in the world is going on here? The conference report language is a compromise. Those of us referred to by the Senators from Texas and California as the depot caucus are not getting what we wanted--which was the validation of the BRAC process, whatever that may bring. I know that I went to every one of those meetings. It was a pressure- packed, difficult time. All of us were concerned. Frankly, the BRAC Commission did make the tough decisions in determining which ones should survive, which ones should not. But for the other three to do their job, they must have this work in fair competition. I have every confidence that Utahns can compete with anyone in a fair competition. At least by leveling the playing field for bidding on depot work, everyone has a fair chance. May the best bidders win. And let us keep integrity in the process. What the Senators on the other side seem to be arguing for is a system that really stacks the deck.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to laud the Senate passage of H.R. 672. This legislation, which was introduced by Congressman Coble in the House of Representatives, is the counterpart to legislation I introduced in the Senate on March 20 of this year--the Copyright Clarification Act of 1997 (S. 506). The Copyright Clarification Act was reported unanimously by the Senate Judiciary Committee on April 17. The purpose of these bills is to make technical but needed changes to our Nation's copyright laws in order to ensure the effective administration of our copyright system and the U.S. Copyright Office. The need for these changes was first brought to my attention by the Register of Copyrights, Marybeth Peters, and I want to thank her for her outstanding work. Among the most important amendments made by H.R. 672 is a clarification of the Copyright Office's authority to increase its fees for the first time since 1990 in order to help cover its costs and to reduce the impact of its services on the Federal budget and the American taxpayer. This clarification is needed because of ambiguities in the Copyright Fees and Technical Amendments Act of 1989, which authorized the Copyright Office to increase fees in 1995, and every fifth year thereafter. Because the Copyright Office did not raise its fees in 1995, as anticipated, there has been some uncertainty as to whether the Copyright Office may increase its fees again before 2000 and whether the baseline for calculating the increase in the consumer price index is the date of the last actual fee settlement, 1990, or the date of the last authorized fee settlement, 1995. H.R. 672 clarifies that the Copyright Office may increase its fees in any calendar year, provided it has not done so within the last 5 years, and that the fees may be increased up to the amount required to cover the reasonable costs incurred by the Copyright Office. Although H.R. 672 does not require the Copyright Office to increase its fees to cover all its costs, I believe it is important in that it provides the Copyright Office the statutory tools to become self- sustaining--a concept that I promoted in the last Congress. Currently the Copyright Office does not recover the full cost of its services through fees, but instead receives some $10 million in annual appropriations. Several studies have supported full-cost recovery for the Copyright Office. For example, A 1996 Booz-Allen and Hamilton management review of the Library of Congress recommended that the Copyright Office pursue full-cost recovery, noting that the Copyright Office has been subject to full-cost recovery in the past and that the potential revenues to be derived from pursuing a fee-based service was significant. A 1996 internal Copyright Office management report prepared by the Library of Congress also recommended full-cost recovery for copyright services. The Congressional Budget Office has also suggested full-cost recovery for the Copyright Office as a means of achieving deficit reduction. These recommendations were endorsed by the General Accounting Office in its recent report, Intellectual Property, Fees Are Not Always Commensurate with the Costs of Service. It is my understanding that the Copyright Office has embraced the goal of achieving full-cost recovery for its copyright services. H.R. 672 will provide the authority to achieve that goal, and by passing this legislation this year, the Copyright Office will be able to move expeditiously to adjust their fees for the coming year. I also want to note the importance of the amendment which the Senate has adopted to H.R. 672 to overturn the Ninth Circuit's decision in La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995), cert denied, 116 S. Ct. 331 (1995). My colleagues will recall that Senator Leahy and I introduced this legislation in March of this year as a provision of S. 505, the Copyright Term Extension Act of 1997. In general, La Cienega held that distributing a sound recording to the public--by sale, for example--is a publication of the music recorded on it under the 1909 Copyright Act. Under the 1909 act, publication without copyright notice caused loss of copyright protection. Almost all music that was first published on recordings did not contain copyright notice, because publishers believed that it was not technically a publication. The Copyright Office also considered these musical compositions to be unpublished. The effect of La Cienega, however, is that virtually all music before 1978 that was first distributed to the public on recordings has no copyright protection--at least in the Ninth Circuit. By contrast, the Second Circuit in Rosette v. Rainbo Record Manufacturing Corp., 546 F.2d 461 (2d Cir. 1975), aff'd per curiam, 546 F.2d 461 (2d Cir. 1976) has held the opposite--that publish distribution of recordings was not a publication of the music contained on them. As I have noted, Rosette comports with the nearly universal understanding of the music and sound recording industries and of the Copyright Office. Since the Supreme Court has denied cert in La Cienega, whether one has copyright in thousands of musical compositions depends on whether the case is brought in the Second or Ninth Circuits. This situation is intolerable. Overturning the La Cienega decision will restore national uniformity on this important issue by confirming the wisdom of the custom and usage of the affected industries and of the Copyright Office for nearly 100 years. In addition to these two important provisions, H.R. 672 will: First, correct drafting errors in the Satellite Home Viewer Act of 1994, which resulted from the failure to take into account the recent changes made by the Copyright Tribunal Reform Act of 1993, and which mistakingly reversed the rates set by a 1992 Copyright Arbitration Royalty Panel for satellite carriers; second, clarify ambiguities in the Copyright Restoration Act dealing with the restoration of copyright protection for certain works under the 1994 Uruguay Round Agreements Act; third, ensure that rates established in 1996 under the Digital Performance Rights in Sound Recordings Act will not lapse in the event that the Copyright Arbitration Royalty Panel does not conclude rate-setting proceedings prior to December 1, 2000; fourth, restore definitions of jukebox and jukebox operator, which were mistakingly omitted when the old jukebox compulsory license was replaced with the current negotiated jukebox license; fifth, revise the currently unworkable requirement of a 10-day advanced notice of intent to copyright the fixation of live performances, such as sporting events; sixth, clarify administrative issues regarding the operation of the Copyright Arbitration Royalty Panels; seventh, provide needed flexibility for the Librarian of Congress in setting the negotiation period for the distribution of digital audio recording technology [DART] royalties; and, eighth, make miscellaneous spelling, grammatical, capitalization, and other corrections to the Copyright Act. Mr. President, this is important legislation, and I am pleased the Senate has acted to approve it prior to adjourning this fall. I wish to thank my colleagues and to encourage the House to accept the Senate amendment and to forward H.R. 672 to the President for his signature without delay.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to raise an issue that my colleagues may have heard about, the recent decision by an arbitration panel convened under the auspices of the Copyright Office in the Library of Congress regarding the rates satellite carriers will pay under the satellite copyright compulsory license. The panel, in attempting to set a fair market value of the retransmission of broadcast signals, has decided to raise those rates and has made the new rate effective July 1, 1997. The arbitration panel's decision is currently on appeal to the Librarian of Congress who is empowered to review the decision. The standard of review is limited to one of arbitrariness or contrariness to law. The Librarian's decision will be announced next Tuesday, October 28. At that point, the Librarian's decision is subject to appeal to the Court of Appeals for the District of Columbia. The decision to raise the rates and especially its retroactive effective date has raised objections by the satellite carriers. Obviously, copyright owners disagree with the satellite carriers. My colleagues may be contacted by one side or the other of this dispute in the coming weeks or months. My colleagues should know that as chairman of the Senate Judiciary Committee, the committee of jurisdiction over copyright matters generally, and the Satellite Home Viewers Act in particular, I have begun a review of the satellite and cable licenses. Earlier this year I asked the Copyright Office to conduct in depth public hearings and make a comprehensive report to the Judiciary Committee on the licenses, together with recommendations for reforms. The Judiciary Committee is now reviewing these recommendations. As we make our review of the compulsory licenses, I believe we need to keep in mind the needs of rural families. The Satellite Home Viewers Act was originally intended in 1988 to ensure that households that could not get television in any other way, such as traditional broadcast or cable, would be able to get television signals via satellite. The market has changed substantially since 1988, and those changes have led to many of the controversies that currently surround the act. Many are looking to satellite carriers to compete directly with cable companies for viewership. But as we consider reforms to make the license work better in the current marketplace, we need to consider carefully the impact on the original beneficiaries, rural folks who are otherwise beyond the reach of traditional television signals. I come from a state that has a fine broadcast industry that invests its energy and capital in trying to reach as many viewers as it can in our mountainous State of Utah. But there are some Utahans, or others in similar rural States, who appear to be simply beyond the reach of broadcast transmitters and translators, despite the best efforts of our broadcasters. As the chairman of the Judiciary Committee, I hope to find a fair way of helping the greatest number of Utahans have the greatest amount of choice in television entertainment. Obviously this means balancing a number of interests, since consumer choice will be curtailed if any segment of the industry is disadvantaged too much to support the other segments. We need to try to get a system that will be consumer-friendly, fair to creators and copyright holders to encourage them to continue to produce quality entertainment, and that makes for a competitive environment that will lower prices and increase choices. As we do this, we need to remember the original purpose of the satellite license, which is to make television available to those who cannot otherwise get it. I believe many of my colleagues on the committee and in the Senate share my views, particularly my good friend, the ranking member of the Judiciary Committee, Senator Leahy. Mr. President, I would ask the distinguished ranking member if he shares my concerns about rural satellite viewers, as well as the other affected interests in this industry?

Mr. HATCH. I thank my colleague. Mr. President, I would ask my colleague from Vermont if he will work with me and the other members of the Judiciary Committee to help ensure that we keep the needs of rural satellite viewers in mind as we consider reforms to the compulsory licenses?

Mr. HATCH. I thank my colleague, and I invite my colleagues in the Senate to work with me and with the ranking member of the Judiciary Committee as we review the compulsory licenses to ensure the best situation for all our constituents.

Mr. HATCH

Mr. HATCH. Mr. President, I am today introducing a private relief bill on behalf of Belinda McGregor, the beloved sister of one of my constituents, Rosalinda Burton. Mistakes are made everyday, Mr. President, and when innocent people suffer severe consequences as a result of these mistakes, something ought to be done to remedy the situation. In the particular case of Ms. Belinda McGregor, the federal bureaucracy made a mistake--a mistake which cost Ms. McGregor dearly and it is now time to correct this mistake. Unfortunately, the only way to provide relief is through Congressional action. Belinda McGregor, a citizen of the United Kingdom, filed an application for the 1995 Diversity Visa program. Her husband, a citizen of Ireland, filed a separate application at the same time. Ms. McGregor's application was among those selected to receive a diversity visa. When the handling clerk at the National Visa Center received the application, however, the clerk erroneously replaced Ms. McGregor's name in the computer with that of her husband. As a result, Ms. McGregor was never informed that she had been selected and never provided the requisite information. The mistake with respect to Ms. McGregor's husband was caught, but not in time for Ms. McGregor to meet the September, 1995 deadline. Her visa number was given to another applicant. In short, Ms. McGregor was unfairly denied the 1995 diversity visa that was rightfully hers due to a series of errors by the National Visa Center. As far as I know, these facts are not disputed. Unfortunately, the Center does not have the legal authority to rectify its own mistake by simply granting Ms. McGregor a visa out of a subsequent year's allotment. Thus, a private relief bill is needed in order to see that Ms. McGregor gets the visa to which she was clearly entitled to in 1995. Mr. President, I have received a very compelling letter from Rosalinda Burton of Cedar Hills, UT which I am placing in the Record. Ms. Burton is Ms. McGregor's sister and she described to me the strong relationship that she and her sister have and the care that her sister provided when Ms. Burton was seriously injured in a 1993 car accident. I hope that the Senate can move forward on this bill expeditiously. Ms. McGregor was the victim of a simple and admitted bureaucratic snafu. The Senate ought to move swiftly to correct this injustice. Mr. President, I am also including in the record additional relevant correspondence which documents the background of this case. Mr. President, I ask unanimous consent that additional material be printed in the Record.