Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I yield myself such time as I might use on the Democratic side.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, from its beginnings, America has stood for fairness, opportunity and justice. Generation after generation our Nation has been able, often with intense debates, to give greater meaning to these values in the lives of more and more of our citizens. We know today we are a better Nation when our democracy and our policies reflect these values. We are a stronger America when our actions respect those values for all our citizens especially those who are the backbone of America those--who work hard every day, who care for their families, and who love their country. Fairness; opportunity; justice. But what we have seen in recent years is a breach of these values in order to reward the powerful at the expense of average Americans. Those in power passed massive tax breaks for the wealthy and short- changed everyone else. They granted sweetheart deals to Halliburton Corporation in Iraq while our troops went without armor. They let the polluters write the pollution rules for our water and our air. They let the oil industry write the energy policy in secret meetings in the White House. Two weeks ago, over the opposition of every Democrat in the House and Senate, they forced through a Federal budget that preserves corporate tax loopholes at the expense of college aid, and slashes Medicaid for poor mothers to pay for tax breaks for millionaires. They twisted arms for 3\1/2\ hours in the dead of night on the floor of the House to pass by a single vote a so-called Medicare reform that lavishes billions of dollars on HMOs and drug companies at the expense of senior citizens and the disabled. They broke the ethics rules of the House of Representatives, then changed the rules to avoid investigation. They want to break the promise of Social Security to our citizens by privatizing it, handing it over to Wall Street, and cutting benefits for middle-income Americans. Their actions are a setback for the cause of fairness, opportunity and justice for all. Now, Republican leaders want to break the Senate to get their way this time with the Nation's courts. It's not as if the Senate has failed to confirm President Bush's nominations to the Federal courts. So far, we have approved 208 of his appointments and declined to approve only 10. We have blocked only the very, very few who are so far out of the mainstream that they have no place in our Federal judiciary. And yes, we have been willing to filibuster those nominees to protect America from their extremism. Yet, Republican leaders now propose to scuttle the very Senate rules that have protected our constitution and our citizens for more than two centuries in a no-holds-barred crusade to give rightwing activist judges lifetime appointments to the Nation's courts. They want to break the rules to put judges on our courts who are friendly to polluters and hostile to clean water and clean air. They want to break the rules to put judges on the courts who are hostile to civil rights, hostile to disability rights, hostile to women's rights, and hostile to workers' rights. They even want to break the rules to put judges on the bench who condone torture. The Nation's Founders understood that those in power might believe that the rules most Americans live by don't apply to them. That is why they put in place a democracy that preserves our rights and freedoms through checks and balances. These checks and balances protect our mainstream values by preventing one party from arrogantly and unilaterally imposing its extreme views on the Nation. The Constitution grants the President a check on Congress by allowing him to veto any measure that he believes crosses the line. It establishes an independent judiciary of judges with lifetime appointments and irreducible salaries, so they will be immune to political pressures and can serve as a valuable check against illegal or unconstitutional actions by the President or Congress. It gives the President and the Senate the shared duty of appointing qualified men and women to the courts, as a check against a President who tries to force his will on the courts. The Founders deliberately designed the Senate to be a special additional check. It is smaller than the House. It has 6 year terms compared to 2 years for the House, and 4 for the President. Our terms are staggered, so that at least two-thirds of us are veterans of a previous Congress. We have unique powers over treaties, appointments, and impeachments. We have full power over our own rules, so that we can be more deliberate and deliberative in our action. The Senate was meant to check an overreaching Executive--or an overreaching House as well, and to resist the fads of public opinion. Over the centuries, we have repeatedly played this balancing and stabilizing role, especially when the independence of the judiciary was threatened by an overreaching Chief Executive. Thomas Jefferson, at the peak of his popularity and with his party controlling Congress, pushed the Senate to remove a Supreme Court Justice whose decisions Jefferson disagreed with, but the Senate said ``no.'' Franklin Roosevelt tried to expand the Supreme Court, so that he could pack it with Justices who would support his views. Again, a Senate--a Senate under his party's control--said ``no.'' Richard Nixon, having lost one Supreme Court nomination battle to a bipartisan coalition, dared us to reject a second, even worse candidate. But a bipartisan Senate majority honored the Founders' trust by saying ``no.'' Throughout our history, the Senate, has structured its processes to reflect the unique powers entrusted to it. For such irreversible steps as conferring lifetime judicial authority on nominees for the bench, it has given the minority the ability to protect our republic from the combined tyranny of a willful executive branch and an equally willful and like-minded small majority of Senators. Thus the Senate's rules have allowed the minority to make itself heard as long as necessary to stimulate debate and compromise, and even to prevent actions that would undermine the balance of powers, or that a minority of Senators strongly oppose on principle. Especially with respect to appointments, as to which the Senate's ``advice and consent'' is a matter of constitutional prerogative, there has never been a constitutional right, or even a right under the Senate rules, to a floor vote on a nomination that would allow a bare majority to automatically rubberstamp the President's choice. In fact, until 1917, the Senate had no limit on debate at all, and during that time countless nominees, including judges, not only failed to receive Senate consent, but failed to receive the up or down vote that some pretend has been available as a matter of right. The cloture rule adopted in 1917 permitted debate to be ended on legislation if two-thirds of the Senate voted to do so, but that rule did not apply to Senate proceedings on nominations. In 1949, the rule was extended to all issues, including nominations. Still, there was no ``right to an up-or-down vote on the floor'' on a matter, because there remained many different ways to prevent it from ever reaching the floor. In 1975, the two-thirds rule for cloture was reduced to three-fifths, but there was no change in the basic rule: the only floor vote you have ``a right to'' is a floor vote on cloture, and if you lose that vote, the matter does not go forward unless a later cloture vote succeeds or until the opponents are prepared to vote. That has been the consistent practice since the first cloture rule 88 years ago. Everyone knows that is the rule. It has been followed without exception in every Senate since then. We can argue--and most of us have--whether cloture should or should not be invoked on a particular matter. But if the majority is not large enough to win a cloture vote, it cannot move ahead to a final vote on that matter, including a nomination. That is what the rules say. That is what they have always said. And that rule has never been broken, especially when the issue is changing the Senate rules themselves, which still requires a two-thirds majority for cloture. Just 19 years after the cloture rule was extended to nominations, Republicans in the Senate led a filibuster against a Supreme Court nomination, the nomination by President Johnson of Abe Fortas to be Chief Justice. The Senate Historian describes it accurately on the Senate website: ``October 1, 1968: Filibuster Derails Supreme Court Appointment.'' Some have tried to rewrite the history of that filibuster. But three of us know what happened in 1968 because we were Senators then. President Johnson was one of the best vote counters in our history. If you want to hear a master at work, just listen to his detailed discussion of Senate and House votes on President Johnson's tapes. Lyndon Johnson would not have sent the Fortas nomination to the Senate if he was not completely confident that a majority of the Senate would support the nomination. And in fact those of us who favored the nomination believed he had that support. The Judiciary Committee reported the Fortas nomination favorably, but its Republican opponents, knowing that they still lacked the votes to defeat the nomination outright, launched a filibuster on the floor, attacking the nominee on a number of different fronts, in an effort to draw away his supporters. In the end, cloture failed, and President Johnson withdrew the nomination. We may never know what the final vote would have been if there had been no filibuster. But there can be no doubt that what occurred was a filibuster of a Supreme Court nomination, and that the purpose of that Republican-led filibuster was to prevent an up-or-down vote on the nomination. Even though there may have been a majority in support of the nomination when the process started, under the Senate rules at that time there was no way for the majority to cut off the minority's right to continue debate unless two-thirds of the Senate voted to do so. As that cloture vote made clear, there would never be a floor vote on the nomination, unless its opponents ended their filibuster. In fact the Senate has never allowed a bare majority to silence the minority on any bill or treaty or nomination, least of all on judicial nominees, whom the Framers were determined to keep independent, and whose independence was assured by the Senate's joint role in their appointment. The idea that we should relinquish any part of our power over judicial appointments, while leaving that power intact for nonjudicial nominations and for all legislation, is not only irrational, it is bizarrely backward. Certainly, this is no time to reduce the ability of the Senate as a whole, and of individual Senators, to assure judicial independence. We need independent courts more than ever. We know that activist groups and their supporters in Congress are putting heavy and well-organized pressure on the courts. They want to restrict rights and liberties in the name of national security. They want to subordinate individual interests to powerful economic interests. They want to intrude Government into sacrosanct areas of family and religion. They want to reverse longstanding precedents that allow the Nation to realize its full potential. When one political party controls all the levers of power in both the White House and Congress, and that party feels beholden to a narrow ideological portion of its base, the independence of the courts is more vital than ever. Despite its razor-thin victory in the all-important political campaign last year, following its especially narrow victory in the election in 2000, which was decided by a 5 to 4 vote in the Supreme Court, the Republican party evidently believes it has absolute power. House Republicans yield to the White House, bending House rules to the breaking point to give the President his way. The President has personally picked the majority leader of the Senate and through him seeks to impose unprecedented strict party discipline on Republican Senators. Now, in a trial run for doing the same to the Supreme Court, the President wants to pack key appellate courts with activist ideological judges he knows could not possibly command a bipartisan consensus in the Senate. It is clear from their records and their resumes that they have been selected precisely because the most radical forces on the Republican right believe they will advance their ideological agenda on the bench. In these circumstances, we as Senators have not only the right, but the obligation, to use every power at our disposal, within the Senate's rules and traditions, to focus the attention of the Senate and the Nation, and ultimately the President, on the overreaching abuse of power by the White House and the Republican majority. That is what our Senate powers and our Senate rules are meant to do. That is what checks and balances are all about. That is why the filibuster exists. The Republican argument to the contrary is irrational, incomprehensible and hypocritical. They say that if we dare to use the well-established Senate rules to preserve the independence of the courts, then they are entitled to break the Senate rules to stop us. They assert--and this is the keystone of their argument--that we are abusing the filibuster by actually using it, even on a very few nominations. They seem to say it is permissible to filibuster if you already have a majority of Senators with you; that is, if you don't need to filibuster. But it is not permissible to filibuster if you are in the minority, which is, of course, the only time you need to filibuster. They say you are permitted to filibuster if you don't have the votes to prevent cloture, but are not permitted to do so if you do have the votes to prevent cloture. In short, their argument seems to be that you are allowed to filibuster only when you don't need it or can't make it stick. In a word, their argument is absurd. The fact is, the Republicans showed in 1968 how the filibuster can be used to change minds when you don't start with enough votes, whether it is Senators' minds, citizens' minds, or just the President's mind. During the Bush years, the filibuster has been used as an exceptional tool against a small number of judicial nominations--10 out of 218--in contrast to nearly 70 judicial nominations blocked from a floor vote by other Republican tactics during the Clinton administration. But here is the most important reason the Republican arguments make no sense: It is the President, not the Senate, who determines how often the filibuster is used. Whenever President Bush decides he would rather pick a fight than pick a judge, then he is likely to be creating the need to filibuster. There is no need for a filibuster if the President takes the ``advice'' of the Senate seriously, under the ``advice and consent'' clause of the constitution, when he nominates lifetime judges for important courts. President Clinton did so with Senator Hatch, the Republican chairman of the Senate Judiciary Committee at the time, on his nominations of Justice Ginsburg and Justice Breyer in the 1990s, and other Presidents have done so throughout history. Those who do not like the filibuster should take their complaints to the other end of Pennsylvania Avenue, where the real responsibility lies. The claim that filibustering judges is unconstitutional is without a shred of support in the Constitution or in history. The Republican leadership seems to be on the verge of abandoning that claim. The recent compromise suggested by Senator Frist would allow the practice to continue for legislation, and for all Cabinet and other executive branch appointments, and even for lifetime Federal district judges. None of these categories is constitutionally distinguishable from Federal appellate court nominations and Supreme Court nominations under the Senate rules. If anything, Article III lifetime appellate judges deserve the filibuster's extra insulation from Executive abuse even more than short-term Cabinet and diplomatic appointments, let alone legislative actions that can be reversed by future legislation. In short, neither the Constitution, nor Senate Rules, nor Senate precedents, nor American history, provide any justification for selectively nullifying the use of the filibuster. Equally important, neither the Constitution nor the rules nor the precedents nor history provide any permissible means for a bare majority of the Senate to take that radical step without breaking or ignoring clear provisions of applicable Senate Rules and unquestioned precedents. Here are some of the rules and precedents that the executive will have to ask its allies in the Senate to break or ignore, in order to turn the Senate into a rubber stamp for nominations: First, they will have to see that the Vice President himself is presiding over the Senate, so that no real Senator needs to endure the embarrassment of publicly violating the Senate's rules and precedents and overriding the Senate parliamentarian, the way our presiding officer will have to do. Next, they will have to break Paragraph 1 of Rule V, which requires 1 day's specific written notice if a Senator intends to try to suspend or change any rule. Then they will have to break paragraph 2 of Rule V, which provides that the Senate rules remain in force from Congress to Congress, unless they are changed in accordance with the existing rules. Then they will have to break paragraph 2 of Rule XXII, which requires a motion signed by 16 Senators, a 2-day wait and a three-fifths vote to close debate on the nomination itself. They will also have to break Rule XXII's requirement of a petition, a wait, and a two-thirds vote to stop debate on a rules change. Then, since they pretend to be proceeding on a constitutional basis, they will have to break the invariable rule of practice that constitutional issues must not be decided by the presiding Officer but must be referred by the Presiding officer to the entire Senate for full debate and decision. Throughout the process they will have to ignore, or intentionally give incorrect answers to, proper parliamentary inquiries which, if answered in good faith and in accordance with the expert advice of the parliamentarian, would make clear that they are breaking the rules. Eventually, when their repeated rule-breaking is called into question, they will blatantly, and in dire violation of the norms and mutuality of the Senate, try to ignore the minority leader and other Senators who are seeking recognition to make lawful motions or pose legitimate inquiries or make proper objections. By this time, all pretense of comity, all sense of mutual respect and fairness, all of the normal courtesies that allow the Senate to proceed expeditiously on any business at all will have been destroyed by the preemptive Republican nuclear strike on the Senate floor. To accomplish their goal of using a bare majority vote to escape the rule requiring 60 votes to cut off debate, those participating in this charade will, even before the vote, already have terminated the normal functioning of the Senate. They will have broken the Senate compact of comity, and will have launched a preemptive nuclear war. The battle begins when the perpetrators openly, intentionally and repeatedly, break clear rules and precedents of the Senate, refuse to follow the advice of the Parliamentarian, and commit the unpardonable sin of refusing to recognize the minority leader. Their hollow defenses to all these points demonstrate the weakness of their case: They claim, ``We are only breaking the rules with respect to judicial nominations; we promise not to do so on other nominations or on legislation.'' No one seriously believes that. Having used the nuclear option to salvage a handful of activist judges, they will not hesitate to use it to salvage some bill vital to the credit card industry, or the oil industry or the pharmaceutical industry, or Wall Street, or any other special interest. In other words, the Senate majority will always be able to get its way, and the Senate our Founders created will no longer exist. It will be an echo chamber to the House, where the tyranny of the majority is so rampant today. Our Republican colleagues also claim that ``Senate Democrats have previously used majority votes to change the rules'', so they can do it too. That spurious claim depends entirely on a pseudo-scholarly article by two Republican staffers, who happen, unintentionally, to have provided enough facts to rebut the claim. As Senator Byrd and other experts on the rules have shown, the instances they rely on do not involve breaking the rules or changing the rules. They were narrow and minor interpretations to fill gaps in existing rules, but always consistent with the underlying rules and their purposes, and always in keeping with the regular procedures of the Senate. They never allowed debate on any nomination or bill to be cut off without the required cloture vote. The Nuclear Option, in contrast, involves major changes in the essence of key rules, without following the required procedures for changing the rules. In fact, even at the start of a new Congress, the one time when some of us thought the rules might be changed by a majority, the Senate has repeatedly and explicitly rejected the proposition that the rules can be changed without following the rules. Why would our Republican colleagues try to do this? The simplest answer is that they will do it because they think they can get away with it. If enough Republicans accede to this raw exercise of unbridled power, and ignore the rules and traditions and comity and history and purpose of the Senate, and think they can pull it off and not be held accountable, then they will try it. Obviously, their party is also being driven by an irresponsible fringe force that does not care about the credibility of their party or the institutional interests of the Senate or the future of our checks and balances form of government. They were the ones who compelled their leaders on both sides of the Hill to intrude in the tragic case of Terri Schiavo. The overwhelmingly hostile reaction to that fiasco should be enough to encourage the White House not to go down such paths again, especially after Stanley Birch, a conservative appointee of the first President Bush, on a conservative federal circuit court of appeals, excoriated Congress for its unconstitutional interference with the courts, and particularly excoriated Republican opponents of judicial activism for hypocritically pushing their own corrosive brand of judicial activism. Sadly, with Dr. Frist's encouragement and support, the same rabble rousers recently accused us of blocking nominees because they are ``people of faith,'' thus suggesting that the 208 judges whom we have not blocked are not ``people of faith.'' Clearly these activist ideologues do not agree with the Founders about the need for judicial independence, for the separation of powers, or for the separation of church and state. They have no respect for history, no respect for checks and balances, and no respect for the role of the Senate. They simply want as many judges as possible who will follow their instructions. Fortunately, the vast majority of Americans' share our commitment to basic fairness. They agree that there must be fair rules, that we should not unilaterally abandon or break those rules in the middle of the game, and that we should protect the minority's rights in the Senate. Even in the darkest days of the government's failure to respond to the civil rights revolution, half a century ago, the Senate never tried to allow a bare majority to silence a substantial minority. Yet that is exactly what Republicans want to do now. There simply is no crisis which justifies such a drastic and destructive action. Who are the nominees the Republican leadership wants confirmed so desperately that they are willing to resort to tactics like these? Obviously, they are doing it in anticipation of the battle soon to come over the nomination of the next Supreme Court Justice. The judges nominated so far who have been filibustered by the Senate show how truly appalling a Supreme Court nominee may be, if the President can avoid a filibuster. President Bush has said he wants judges who will follow the law, not try to re-write it. But his actions tell a different story. The contested nominees have records that make clear they would push the agenda of a narrow far-right fringe, rather than protect rights important to all Americans. Priscilla Owen, Janice Rogers Brown, William Myers, Terrence Boyle, and William Pryor would erase much of the country's hard-fought progress toward equality and opportunity. Their values--favoring big business over the needs of families, destroying environmental protections, and turning back the clock on civil rights--are not mainstream values. As a Texas Supreme Court Justice, Priscilla Owen has shown clear hostility to fundamental rights, particularly on issues of major importance to workers, consumers, victims of discrimination, and women. Neither the facts, nor the law, nor established legal precedents, stop her from reaching her desired result. Owen was elected to the Texas Supreme Court with donations from Enron and other big companies. She consistently rules against employees, and consumers who challenge corporate abuses. She bent the law in an attempt to deny relief for the family of a teenager, who was paralyzed after being thrown through the sun roof of the family car in an accident. She wanted to reverse a jury award for a woman whose insurance company wrongly denied her claim for coverage of heart surgery. She argued that the Texas Supreme Court should reinterpret a key civil rights law to make it harder for victims of discrimination to get relief. It's not just Senate Democrats who question Justice Owen's record of judicial activism and her willingness to ignore the law. Even many newspapers that endorsed her campaign for the Texas Supreme Court now oppose her confirmation after seeing how poorly she served as a judge. The Houston Chronicle wrote that Justice Owen ``too often contorts rulings to conform to her particular conservative outlook.'' The paper also noted that ``It's saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans.'' The Austin American-Statesman wrote that she ``seems all too willing to bend the law to fit her views.'' The San Antonio Express-News opposed her nomination, reminding us that ``[w]hen a nominee has demonstrated a propensity to spin the law to fit philosophical beliefs, it is the Senate's right--and duty--to reject that nominee.'' Her own colleagues on the conservative Texas Supreme Court have repeatedly accused her of the same thing. They clearly state that Justice Owen puts her own views above the law, even when the law is crystal clear. Justice Owen's former colleague on the Texas Supreme Court, our new Attorney General Alberto Gonzales, has said she was guilty of ``an unconscionable act of judicial activism.'' Some claim that Attorney General Gonzales didn't mean this criticism. But this was no single, stray remark. To the contrary, both he and her other colleagues on the Texas Supreme Court have repeatedly noted that she ignores the law to reach her desired result. In one case, Justice Gonzales held that Texas law clearly required manufacturers to be responsible when retailers sell their defective products. He wrote that Justice Owen's dissenting opinion would ``judicially amend the statute'' to let the manufacturers off the hook. In a case in 2000, Justice Gonzales, joined by a majority of the Texas Supreme Court, upheld a jury award holding that the Texas Department of Transportation and the local transit authority were responsible for a deadly auto accident. They said that the result was required by the ``plain meaning'' of Texas law. Justice Owen dissented, claiming that Texas should be immune from these suits. Justice Gonzales again stated that her view misread the law, which he said was ``clear and unequivocal.'' In another case, Justice Gonzales joined a majority opinion that criticized Justice Owen for ``disregarding the procedural limitations in the statute,'' and ``taking a position even more extreme'' than was argued by the defendant in the case. In another case in 2000, private landowners tried to use a Texas law to exempt themselves from local environmental regulations. The court's majority ruled that the law was an unconstitutional delegation of legislative authority to private individuals. Justice Owen dissented, claiming that the majority's opinion ``strikes a severe blow to private property rights.'' Justice Gonzales joined a majority opinion criticizing Justice Owen's view, stating that most of her opinion was ``nothing more than inflammatory rhetoric which merits no response.'' In another case, Justice Owen joined a partial dissent that would have limited the right to jury trials. The dissent was criticized by the other judges as a ``judicial sleight of hand'' to bypass the constraints of the Texas Constitution. For the very important D.C. Circuit, the President has nominated another extreme right-wing candidate. Janice Rogers Brown's record on the California Supreme Court makes clear that--like Priscilla Owen-- she's a judicial activist who will roll back basic rights. When she joined the California Supreme Court, the California State Bar Judicial Nominees Evaluation Commission had rated her ``not qualified,'' and ``insensitive to established legal precedent'' when she served on the state court of appeals. All Americans, wherever they live, should be concerned about such a nomination to this vital court, which interprets federal laws that protect our civil liberties, workers' safety, and our ability to breathe clean air and drink clean water in their communities. Only the D.C. Circuit can review the national air quality standards under the Clean Air Act and national drinking water standards under the Safe Drinking Water Act. This court also hears the lion's share of cases involving rights of employees under the Occupational Safety and Health Act and the National Labor Relations Act. Yet Janice Rogers Brown's record shows a deep hostility to civil rights, to workers' rights, to consumer protection, and to a wide variety of governmental actions in many other areas--the very issues that predominate in the D.C. Circuit. Perhaps most disturbing is the contempt she has repeatedly expressed for the very idea of democratic self-government. She has stated that ``where government moves in, community retreats [and] civil society disintegrates.'' She has said that government leads to ``families under siege, war in the streets.'' In her view, ``when government advances . . . freedom is imperiled [and] civilization itself jeopardized.'' She has criticized the New Deal, which gave us Social Security, the minimum wage, and fair labor laws. She's questioned whether age discrimination laws benefit the public interest. She's even said that ``Today's senior citizens blithely cannibalize their grandchildren because they have a right to get as much `free' stuff as the political system will permit them to extract.'' No one with these views should be confirmed to the Federal court and certainly not to the Federal court most responsible for cases affecting government action. It's no wonder that an organization seeking to dismantle Social Security is running ads supporting her nomination to the second most powerful court in the country. Janice Rogers Brown has also written opinions that would undermine civil rights. She has held, for example, that the First Amendment prevents courts from granting injunctions against racial slurs in the workplace, even when those slurs are so pervasive that they create a hostile work environment in violation of Federal job discrimination laws. In other opinions, she has argued against allowing victims of age and race discrimination to obtain relief in state courts, or to obtain damages from administrative agencies for their pain and suffering. She has rejected binding precedent on the constitutional limits on an employer's ability to require employees to submit to drug tests. President Bush has selected William Myers for the important Ninth Circuit Court of Appeals. Mr. Myers is a long-time mining and cattle industry lobbyist. He has compared Federal laws protecting the environment to ``the tyrannical actions of King George'' over the American colonies. He has denounced our environmental laws as ``regulatory excesses.'' In the Interior Department, he served his corporate clients instead of the public interest. As Solicitor of Interior, he tried to give public land worth millions of dollars to corporate interests. He issued an opinion clearing the way for mining on land sacred to Native Americans, without consulting the tribes affected by his decision although he took the time to meet personally with the mining company that stood to profit from his opinion. William Myers is a particularly inappropriate choice for the Ninth Circuit, which contains many of America's most precious natural resources and national parks, including the Grand Canyon and Yosemite National Park, and which is home to many Native American tribes. The Ninth Circuit decides many of the most important environmental disputes affecting America's natural heritage. It has a special role in safeguarding the cultural and religious heritage of the first Americans. It deserves an impartial judge who will deal fairly with environmental claims, not a mining company lobbyist clearly opposed to environmental protections. The Ninth Circuit needs judges who will respect Native American rights, not a judge the head of the National Congress of American Indians has called the ``worst possible choice'' for Native Americans. The nomination of Terrence Boyle is still pending in the Judiciary Committee. By all appearances, he was chosen for his radical views, not his qualifications. His decisions as a trial judge have been reversed or criticized on appeal more than 150 times, far more than any other district judge nominated to a circuit court by President Bush. The Supreme Court unanimously reversed him in a voting rights case, in which Justice Clarence Thomas wrote that he had ignored established legal standards. In fact, he has made serious mistakes in cases that matter most to Americans' daily lives. Time and again, the conservative Fourth Circuit has ruled that Judge Boyle improperly dismissed cases asking protection for individual rights, such as the right to free speech, or the right of free association, or the right to be free from discrimination, or the right to a fair and lawful sentence in a criminal case. It's no wonder that his nomination is opposed by a broad coalition of organizations nationally and in his home state of North Carolina representing law enforcement officers, workers, and victims of discrimination. Last, but by no means least disturbing, the President has renominated William Pryor to the Court of Appeals for the Eleventh Circuit. Mr. Pryor is no true ``conservative.'' He has pushed a radical agenda contrary to much of the Supreme Court's jurisprudence over the last forty years, and at odds with important precedents that have made our country a fairer nation. Mr. Pryor has fought aggressively to undermine the power of Congress to protect civil rights and individual rights. He's tried to cut back on the Family and Medical Leave Act, the Americans with Disabilities Act, and the Clean Water Act. He's been contemptuously dismissive of claims of racial bias in the application of the death penalty. He's relentlessly advocated its use, even for persons with mental retardation. He's even ridiculed the current Supreme Court justices, calling them ``nine octogenarian lawyers who happen to sit on the Supreme Court.'' He can't even get his facts right. Only two of the nine justices are 80 years old or older. Mr. Pryor has criticized Section 5 of the Voting Rights Act, which helps ensure that all Americans can vote, regardless of their race or ethnic background. He's even called the Voting Rights Act, which has been repeatedly upheld by the Supreme Court, ``an affront to federalism.'' His hostility to voting rights belongs in another era-- not on a federal court. As Alabama's Attorney General, in a case involving a disabled man forced to crawl up the courthouse stairs to reach the courtroom, Mr. Pryor argued that the disabled have no fundamental right to attend their own public court proceedings. His nomination was rushed through the Committee despite serious questions about his ethics and even his candor before the Committee. History will judge us harshly in the Senate if we don't stand tall against the brazen abuses of power demonstrated by these nominees. The issues at stake in these nominations go well beyond partisan division. The basic values of our society--whether we will continue to be committed to fairness and opportunity and justice for all--are at issue. Many well-qualified, fair-minded nominees could be quickly confirmed if the Bush administration would give up its right-wing litmus test. Why, when there are so many qualified Republican attorneys, would the President choose nominees whose records raise so much doubt about whether they will follow the law? Why force an all-out battle over a few right-wing nominees, when the nation has so many more pressing problems, such as national security, the economy, education, and health care? Our distinguished former colleagues, Republican Senator David Durenberger and Democratic Senator and Vice President Walter Mondale, recently urged the Senate to reject the nuclear option. They reminded us that ``Our federal courts are one of the few places left where issues are heard and rationally debated and decided under the law.'' Five words they used said it all--``let's keep it that way.'' To reach the goals important to the American people, let's reject the nuclear option, and respect the checks and balances that have served the Senate and the nation so well for so long.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the Pension Fairness and Full Disclosure Act we are introducing today is urgently needed to end the nightmare that the current pension system is becoming for millions of families across the Nation. Thousands of flight attendants and machinists from United Airlines have suffered heavily in pay and job security in recent years, and now they're losing their pensions, too. Yet corporate CEO's are still receiving bonuses worth millions of dollars a year. This nightmare is happening to workers all across America. Companies are cutting employees' pensions by switching to cash balance plans, or even going into bankruptcy. But executive retirement is still going through the roof. A recent report found over 20 percent of America's top 500 largest companies have promised pensions worth more than $1 million a year for their CEOs. President Bush has said that what is good for the top floor is good for the shop floor. It's wrong for it to be business as usual on the top floor when so much pain is spreading on the shop floor. Polaroid in Massachusetts filed for bankruptcy in 2001 and terminated its pension plan in 2002. Its pension plan was underfunded by over $300 million dollars. Thousands of retirees had their benefits cut when the Pension Benefit Guaranty Corporation took over. Yet the principal executives of the company received millions of dollars in bonuses. Last week, the company was sold again, and the chairman and CEO received golden parachutes of nearly $10 million each. The bill we are introducing will end that injustice. It prohibits companies from lining executives' pockets and ignoring commitments to rank-and-file workers. It will require companies to inform employees about executive compensation. These changes are long overdue. It's an issue of basic fairness, and only Congress can solve this.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the Pension Fairness and Full Disclosure Act we are introducing today is urgently needed to end the nightmare that the current pension system is becoming for millions of families across the Nation. Thousands of flight attendants and machinists from United Airlines have suffered heavily in pay and job security in recent years, and now they're losing their pensions, too. Yet corporate CEO's are still receiving bonuses worth millions of dollars a year. This nightmare is happening to workers all across America. Companies are cutting employees' pensions by switching to cash balance plans, or even going into bankruptcy. But executive retirement is still going through the roof. A recent report found over 20 percent of America's top 500 largest companies have promised pensions worth more than $1 million a year for their CEOs. President Bush has said that what is good for the top floor is good for the shop floor. It's wrong for it to be business as usual on the top floor when so much pain is spreading on the shop floor. Polaroid in Massachusetts filed for bankruptcy in 2001 and terminated its pension plan in 2002. Its pension plan was underfunded by over $300 million dollars. Thousands of retirees had their benefits cut when the Pension Benefit Guaranty Corporation took over. Yet the principal executives of the company received millions of dollars in bonuses. Last week, the company was sold again, and the chairman and CEO received golden parachutes of nearly $10 million each. The bill we are introducing will end that injustice. It prohibits companies from lining executives' pockets and ignoring commitments to rank-and-file workers. It will require companies to inform employees about executive compensation. These changes are long overdue. It's an issue of basic fairness, and only Congress can solve this.

Mr. KENNEDY

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

Mr. KENNEDY. Mr. President, I see the floor manager of the highway bill.

Mr. KENNEDY. I will.

Mr. KENNEDY. Yes.

Mr. KENNEDY. Yes.

Mr. KENNEDY. Mr. President, I thank the floor manager. This is very important legislation, enormously important to my State as other States. We need the kinds of investments in our roads and bridges to ensure their safety and security and that they will continue to be the vital avenues for an expanding and growing economy. I look forward to working with the committee. Iraq Supplemental I appreciate having the opportunity to address the Senate on what I anticipate will be the matter that will be before the Senate later this evening and through tomorrow, and that is the Iraq supplemental conference report. As I mentioned, I expect that it will be laid down in the next few hours, and I expect there will be a final resolution of this sometime tomorrow. I welcome the opportunity to address some of the important provisions that are included in the conference report and bring them to the attention of our colleagues and to the American people. I intend to support the Iraq spending bill. Although I disagree strongly with some of the bill's provisions, these funds are clearly needed for our troops. All of us support our troops. We obviously want to do all we can to see that they have proper equipment, vehicles, and everything else they need to protect their lives as they carry out their missions. It is scandalous that the administration has kept sending them into battle in Iraq without proper equipment. No soldier should be sent into battle unprotected. No parent should have to go in desperation to the local Wal-Mart to buy armor plates and mail them to their sons and daughters serving in Iraq. Our military is performing brilliantly under enormously difficult circumstances, and we need to give them our support--not just from our words but from our pockets, too. One aspect of this bill that I am particularly proud of is the increased funding for humvees for our troops on patrol in Iraq. The Bayh-Kennedy amendment adds additional funds to keep production at increased levels. Some opponents claim that the Army already had enough armed humvees and objected to any further increase. But a front-page article in the New York Times, on April 25, told us the troop side of the real need for more armor and the difference it can make. Company E, a Marine Corps unit based at Camp Pendleton, returned from 6 months in Ramadi last year, and its members were so frustrated with this problem that they decided to tell their story. They did not have enough armored vehicles. Thirteen of the twenty-one marines from Company E who were killed in Iraq had been riding in humvees that failed to protect them from bullets or bombs. They saw problems up close. A year ago, eight of them were killed when their humvees were ambushed on the way to aid another unit under fire. The cargo section of the humvee where the troops were riding did not even have hillbilly armor to protect them from the blast. They were totally unprotected. As one marine described the attack: All I saw was sandbags, blood, and dead bodies. There was no protection in the back. Captain Kelly Royer, Company E's unit commander, asked his superiors when he would be getting more armored humvees. He was told that additional armor had not been requested and that there were production constraints. Another marine says they complained about the shortages every day to anybody we could. They told us they were listening, but we did not see it. These marines on the front line knew the armor meant the difference between life and death, the difference between an essential mission and a suicide mission. They were desperate to get more armor. Day after day they saw the brutal consequences of the Pentagon's incompetence and delay. The lessons learned from the war in Iraq are said to help us in future conflicts, but for all forces facing death every day, the future was yesterday. In fact, the Marines are requesting funds for the coming fiscal year to develop and produce new armored vehicles to avoid these deadly threats. The need is so clear that the request was submitted under the Marine Corps Urgent Universal Needs Statement which was created to streamline the acquisition process and get equipment to the field faster. They have a plan to meet the future need, but what about the urgent need today? We do not have the luxury of time to wait for these new vehicles to roll off a future assembly line. The need for armored humvees is now. The hillbilly armor they scavenge for and add to their unprotected humvees does not provide adequate protection. The Army says of the new requirement approved this month, none of it is designated for the Marine Corps. The Pentagon refuses to make this a top priority. They continue to drag their feet. In a report to Congress this month, the Government Accounting Office describes month after month of mismanagement by the Pentagon in supplying the armored humvees our troops urgently need to carry out their missions and stay alive. The GAO report found the Army still had no long-term plan to increase the number of armored humvees. The war in Iraq has been going on for 2 full years. Our troops are under fire every day, and the Pentagon still does not have a plan to protect them. I have in my hand an April 2005 GAO report, ``Defense Logistics Agency, Actions Needed to Improve Availability of Critical Items during Current and Future Operations.'' On page 123, it states that there two primary causes for the shortages of uparmored vehicles and add-on armor kits. First, a decision was made to pace production rather than use the maximum available capacity. This is the General Accounting Office in their report of April of this year. Second, the funding allocations did not keep up with rapidly increasing requirements. That is the General Accounting Office about whether we need to have more uparmored humvees and whether we have to give it a higher priority and whether there is a need in Iraq today. Our troops are under fire every day, and the Pentagon still does not have a plan to protect them. In a briefing prepared by marines for Congress, they specifically state, in their vehicle hardening strategy, that ``funding assistance is required to achieve optimum levels of armor protection.'' The GAO report clearly points out that the Pentagon's bureaucratic mentality infected its decisions. They tried to solve the problem in a slow and gradual manner instead of solving it quickly. As the GAO report states, there were two primary causes for the shortages: ``First, a decision was made to pace production.'' Translated into layman's language, that means there was not a sense of urgency by the Pentagon. That is what ``pace production'' means. And then ``rather than use the maximum available capacity'' means they didn't get off their tail and increase production. And ``Second, funding allocations did not keep up with rapidly increasing requirements.'' I am going to come to the statements by the responsible DOD officials before the Armed Services Committee on which I serve. It is equally obvious that in addition to the bureaucratic mentality of the Pentagon, their cakewalk mentality is also a major part of the problem. Week after week, month after month they refuse to believe that the insurgency will continue. They want to believe it will soon be over. They do not feel they need to waste dollars on armored humvees that soon will not be needed in Iraq. So month after month, our troops keep paying with their lives. The light the Pentagon sees at the end of the tunnel turns out to be the blinding flash of another roadside bomb exploding under another unprotected humvee in Iraq. They cannot even get their story right. Armor Holdings, the company that makes the armored humvee, told my office recently that its current contract with the Army will actually mean sharp cutbacks in production. Right now, they produce 550 armored humvees a month. Their contract reduces that number to 239 in June, zero in July and then back to 40 in August and 71 in September. The company is now negotiating for slightly higher levels of production in June, July, and August, but it still expects to decrease production to 71 by September. What possible justification can there be for the Pentagon to slow down current production so drastically in the months ahead when armored humvees are so urgently needed? The Pentagon keeps saying: We will work it out. On nine different occasions, we have asked the Pentagon for their requirements for humvees, and nine times they have been wrong. Nine times they have made their presentation before the Armed Services Committee, and nine times they have been wrong in underestimating the importance of needs, and American service men and women have been paying with their lives. This bill tells the Department of Defense that we will not let them get it wrong for a tenth time. For the sake of our troops, Congress acted and the Pentagon should not ignore it. The contract should be amended immediately to obtain the maximum possible production of armored humvees for the months ahead. Our troops are waiting for an answer, and their lives depend on it. Another important part of this bill will be the periodic report it requires on the progress our forces are making in Iraq. Our military is performing brilliantly under enormously difficult circumstances, but they do not want, and the American people do not want, an open-ended commitment. After all the blunders that took us into war, we need to be certain that the President has a strategy for success. The $5.7 billion in this bill for training Iraqi security forces is a key element of a successful strategy to stabilize Iraq and withdraw American forces. The report will provide the straight answer that we have not had before about how many Iraqi security forces are adequately trained and equipped. We are obviously making progress, but it is far from clear how much. The American people deserve an honest assessment that provides the basic facts, but that is not what we have been given so far. According to a GAO report in March, U.S. Government agencies do not report reliable data on the extent to which Iraqi security forces are trained and equipped. There it is, March: The General Accounting Office says U.S. Government agencies do not report reliable data on the extent to which the Iraqi security forces are trained and equipped. The American people do not know the answer. When they do not know, it means pretty clearly that they are not getting the kind of training and priority they should, and the longer it takes to train them the longer American servicemen are going to be over there risking their lives. The report goes on to say that the Departments of State and Defense no longer report on the extent to which Iraqi security forces are equipped with their required weapons, vehicles, communications, equipment, and body armor. Imagine that. According to the General Accounting Office, the Departments of State and Defense no longer report on the extent to which the Iraqi security forces are equipped with their required weapons, vehicles, communications, equipment, and body armor. It is clear from the administration's own statements that they are using the notorious fuzzy math tactic to avoid an honest appraisal. On February 4, 2004, Secretary Rumsfeld said: We have accelerated the training of Iraqi security forces, now more than 200,000 strong. A year later, on January 19, 2005, Secretary of State Condoleezza Rice said: We think the number right now is somewhere over 120,000. On February 3, 2005, in response to questions from Senator Levin at a Senate Armed Services Committee hearing, GEN Richard Myers, Chairman of the Joint Chiefs of Staff, conceded that only 40,000 Iraqi security forces are actually capable. He said: 48 deployable (battalions) around the country, equals about 40,000, which is a number that can go anywhere and do anything. Obviously, we need a better accounting of how much progress is being made to train and equip effective Iraqi security forces. The President's commitment to keep American troops in Iraq as long as it takes and not a day longer is not enough for our soldiers and their loved ones. They deserve a clearer indication of what lies ahead, and so do the American people. I am encouraged that the administration is finally being required by this bill to tell Congress how many U.S. troops will be necessary in Iraq through the end of 2006. The American people, and especially our men and women in uniform, and their families, deserve to know how much real progress is being made in training Iraqi troops and how long our forces will be in Iraq. Hopefully, the administration will submit these reports in good faith and not attempt to classify this vital information. Those are two of the major provisions that I think require support for this legislation. There was an additional provision that I support that I will mention briefly, and then I will conclude in mentioning a provision which I find very unacceptable, troublesome, and unworkable. The provision that was added by Senator Mikulski, the H-2B visas for seasonal workers, which I had the opportunity to join with her, remains in this legislation, and it will make a great deal of difference. It will be a lifeline for small family businesses in my State on Cape Cod and many other firms that rely overwhelmingly on seasonal workers to meet their heavy summer needs. Many use the programs year after year because it is the only way to legally fill temporary and seasonal positions when no American workers are available. Without this amendment, they would be out of luck this summer, and many will be out of business. This is a short-term solution to the current visa crisis. The bill is a 2-year fix, and without it many businesses will be forced to shut their doors. I appreciate the support of our colleagues on this issue. It will help many hard-working small businesses and industries across the country. Unfortunately, not all the immigration provisions included in the bill have this kind of broad support. Included in the conference agreement are the so-called REAL ID immigration provisions that are highly controversial, harmful, and unnecessary. The Intelligence Reform Act we approved overwhelmingly last year provides real border security solutions. The so-called REAL ID bill added by the House to this spending bill contains controversial provisions we rejected last year and likely would have rejected again if we had had a chance to debate them on the Senate floor. They are a false solution on border security, and they serve no purpose except to push an anti-immigrant agenda. More than ever we need to take the time to get border security reform right as opposed to pushing through legislation to meet the demands of anti- immigrant extremists. The stakes are simply too great. In addition to the numerous substantive problems with the REAL ID, the process through which they have been forced into this conference report is flawed and unacceptable. The Republican leadership in the House and Senate shut Democrats out of the conference negotiations. Why? Because the House bill has controversial provisions that have questionable support in the Senate and with the American people. Strongarm tactics are offensive and do a great deal of disservice to the important issues of our time. The White House too, once rejected these provisions, yet, they now support them. What important issues will the White House flip-flop on next? Those who pushed through these REAL ID provisions continue to say that loopholes exist in our immigration and asylum laws that are being exploited by terrorists. They claim these provisions will close them. In fact, they do nothing to improve national security and leave other big issues unresolved. They want us to believe that its changes will keep terrorists from being granted asylum. But current immigration laws already bar persons engaged in terrorist activity from asylum. Before they receive asylum, all applicants must also undergo extensive security checks, covering all terrorist and criminal databases at the Department of Homeland Security, the FBI, and the CIA. Asylum seekers will find no refuge. Battered women and victims of stalking will be forced to divulge their addresses in order to get driver's licenses, potentially endangering their lives. Many Americans will have other problems with their driver's license. All legal requirements, including labor laws, can now be waived to build a wall. For the first time since the Civil War, habeas corpus will be prohibited. The REAL ID provisions contain other broad and sweeping changes to laws that go to the core of our national identity. Each year, countless refugees are forced to leave their countries, fleeing persecution. America has always been a haven for those desperate for such protection. At the very beginning of our history, the refugee Pilgrims seeking religious freedom landed on Plymouth Rock. Ever since, we have welcomed refugees, and it has made us a better Nation. Refugees represent the best of American values. They have stood alone, at great personal cost, against hostile governments for fundamental principles like freedom of speech and religion. We have a responsibility to examine our asylum policies carefully, to see that they are fair and just. But, the REAL ID bill tramples this noble tradition and will be devastating for legitimate asylum-seekers fleeing persecution. It will make it more difficult for victims fleeing serious human rights abuses to obtain asylum and safety, and could easily lead to their return to their persecutors. Another section of conference report contains a provision that would complete the U.S.-Mexico border fence in San Diego. But it goes much farther than that. It gives the Department of Homeland security unprecedented and unchecked authority to waive all legal requirements necessary to build such fences, not only in San Diego, but anywhere else along our 2,000 mile border with Mexico and our 4,000 mile border with Canada. Building such fences will cost hundreds of millions of dollars, and they still will not stop illegal immigration. What we need are safe and legal avenues for immigrants to come here and work, not more walls. A major additional problem in the REAL ID provisions is that it could result in the deportation even of long-time legal permanent residents, for lawful speech or associations that occurred 20 years ago or more. It raises the burden of proof to nearly impossible levels in numerous cases. A person who made a donation to a humanitarian organization involved in tsunami relief could be deported if the organization or any of its affiliates was ever involved in violence. The burden would be on the donor to prove by clear and convincing evidence that he knew nothing about any of these activities. The spouse and children of a legal permanent resident could also be deported too based on such an accusation, because of their relationship to the donor. The provision could be applied retroactively, so that a permanent resident who had once supported the lawful, nonviolent work of the African National Congress in South Africa, Sinn Fein in Northern Ireland, the Northern Alliance in Afghanistan, or the Contras in Nicaragua would be deportable. It would be no defense to show that the only support was for lawful nonviolent activity. It would be no defense to show that the United States itself supported some of these groups. The driver's license provisions do not make us safer either. Let me explain what these provisions really do. They repeal a section of the Intelligence Reform Act which sets up a process for States and the Federal Government to work together to establish Federal standards for driver's licenses and identification cards. Progress is already being made to implement these important measures, but this bill replaces them with highly problematic and burdensome requirements. The National Conference of State Legislatures says that these provisions are ``unworkable, unproven, costly mandates that compel States to enforce Federal immigration policy rather than advance the paramount objective of making State-issued identity documents more secure and verifiable.'' Indeed, it is a costly unfunded mandate on the States. The CBO estimate on the implementation of the driver's license provisions is $20 million over a 5-year period to reimburse States for complying with the legislation. But, that is not all; the provisions require States to participate in an interstate database that would share information at a cost of $80 million over 3 years. The driver's license provisions do nothing to address the threat of terrorists or to address legitimate security concerns. It would not have prevented a single 9/11 hijacker from obtaining a driver's license, or a single terrorist from boarding a plane. All 13 hijackers could have obtained licenses or IDs under this proposal, and foreign terrorists can always use their passports to travel. The result of these restrictive driver's license provisions will be raised insurance rates, higher numbers of fatalities on America's roadways, and an increased black market for false and fraudulent documents. The REAL ID actually undercuts the original purpose of traffic safety. It is better to have licensed, insured, and trained drivers on our roads. Preventing immigrants from obtaining driver's licenses undermines national security by pushing people into the shadows and fueling the black market for fraudulent identification documents. The REAL ID provisions do nothing to combat the threat of terrorists or to deal with legitimate security concerns. They have taken away precious time that could have been used to address genuine pressing issues. Hundreds of organizations across the political spectrum continue to oppose this legislation. A broad coalition of religious, immigrant, human rights, civil liberties and state groups have expressed their own strong opposition. In these difficult times for our country, we know that the threat of terrorism has not ended, and we must do all we can to enact genuine measures to stop terrorists before they act, and to see that law enforcement officials have the full support they need. The provisions of the REAL ID bill in the conference report today will not improve these efforts. They will not make us safer or prevent terrorism. They are an invitation to gross abuses, and a false solution to national and border security. The REAL ID bill with its controversial provisions should have been considered by the Senate through debate and discussion, not attached to a critical piece of legislation needed by our troops. I urge the Senate to get serious about immigration reform that will make genuine improvements where they are needed, and not in the piecemeal fashion that is contained in this report. This bill also provides nearly $12 million to remedy a crisis in off- site judicial security for our Federal judges. With this bill, we have taken a small, but necessary step toward increasing security for the distinguished men and women of our country who have been appointed to the courts. In the wake of the recent murders of the husband and mother of Federal Judge Joan Lefkow at her home in Chicago, and the courtroom killings in Atlanta, it is clear we must do more to enhance judicial security. This is a matter of the highest urgency. The tragic deaths of Judge Lefkow's family demonstrate that judges may be safe inside the walls of our wellguarded courthouses, but they are vulnerable to disgruntled litigants in other places, even in their own homes. In, fact, security in the homes of judges has long been a concern for the Judicial Conference, the principal decision-making group for the Federal courts. Sadly, three judges had previously been killed in their homes: Judge John Wood of Texas, in 1979; Judge Richard Daronco of New York, in 1988; and Judge Robert Vance, of Alabama, in 1989. The vast majority of threats are received from people who are angry with the outcome of a case in court. In the 10 years since the first world trade center bombing, the Federal judiciary has handled an increasing number of ``high threat'' matters. Judge Lefkow was the victim of an act of domestic terrorism stemming from what should have been a routine civil matter. Matthew Hale, the leader of a White Supremacist group known as the World Church of the Creator, was convicted in April 2004 of soliciting an undercover FBI informant to murder Judge Lefkow in retaliation for her ruling against him in a trademark dispute. This example highlights the environment in which our Federal judges toil every day. The Marshals Service, underfunded and understaffed as it is, struggles to keep up with security needs in the new high-risk age, but there is no reason why our judges should continue to remain so vulnerable 16 years after Judge Vance was killed in his home. We need to stand up for an independent judiciary. We can do so by providing the funds to make their homes safe. There were provisions in this legislation to do that. It says something about the nature of our dialog here when we have to provide the kind of extraordinary additional security to judges because of the nature of the political dialog. Words have consequences. Words have results. Words have meanings. The idea that individuals in responsible positions continue to threaten members of the judiciary too often can result in serious consequences to those judicial members. We have attempted to provide some additional security to protect those individuals. The best protection would be for more restraint on the part of those who talk about an independent judiciary. Mr. President, I ask unanimous consent that an article dated April 25, 2005, from the New York Times be printed in the Record.

Mr. KENNEDY. Mr. President, I yield the remainder of my time.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I welcome this opportunity to call the attention of my colleagues to the important issue of improving the coordination of health care for the Nation's senior citizens. As we all know, large numbers of senior citizens receive health care and treatment from several different physicians. In fact, more than half the patients with serious chronic conditions have three or more different physicians. Too often, a physician seen by a patient is not aware of the tests and prescriptions that other physicians have ordered for the same patient. The result is that the patient receives care that is often duplicative, and may actually be harmful. We need new ideas on improving care coordination for patients-- particularly for senior citizens. The Boston Globe recently published a thoughtful article by Lois Quam, CEO of the Ovations division of UnitedHealth Group, describing new initiatives to improve the quality of health services provided to senior citizens. It includes a number of worthwhile recommendations, and I urge my colleagues to take the time to read it carefully. We can clearly do better, much better, in this important area of health care. I ask unanimous consent that the article ``Rx For Medicare'' be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I thank the Senator for his generosity, but I look forward to listening to the Senator from West Virginia. I know we are going back and forth. I ask unanimous consent to proceed after the Senator from West Virginia.

Mr. KENNEDY. I was asking for recognition after the Senator from West Virginia. I withhold.

Mr. KENNEDY. If I could have a half an hour.

Mr. KENNEDY. Mr. President, do I have it correct, I will have the opportunity for recognition after the Senator from West Virginia?

Mr. KENNEDY. I believe I have up to 30 minutes; is that right?

Mr. KENNEDY. Mr. President, I first want to congratulate the Senator from North Dakota and my two other colleagues, my old friend and colleague from Maryland, Senator Sarbanes, and Senator Dorgan, for their excellent presentation in terms of the budgetary impact of this budget. I think they have explained very clearly, eloquently, and passionately the severe risks that this budget puts in terms of the economic future of this country and its relationships and dependency on other countries throughout the world. I would like to address another aspect of this budget, and that is with regard to domestic priorities that are front and center for most families in this country. First, I would like to discuss the priority of education, and then, second, the budget cuts in Medicaid, which is a lifeline to millions of children and disabled people and women in our society, and third, the further undermining of our whole pension system, which has been included as part of this budget as well. We are having a great national debate on the issues of Social Security and the integrity of the Social Security fund. Under the provisions of this budget, we are going to find that the availability and the assurance of pensions is going to be seriously undermined and threatened as well. But as an initial matter, I ask unanimous consent that an excellent statement by the Episcopal Church, the Evangelical Lutheran Church, the Presbyterian Church, the United Church of Christ, and the United Methodist Church, with regard to this budget, be printed in the Record.

Mr. KENNEDY. I will just read a few lines from this statement. We believe our federal budget is a moral document and should reflect our historic national commitment for those in our own country who suffer from hunger, lack of education, jobs, housing, and medical care, as well as concern for our global community. . . . As we view the FY 2006 Federal Budget through our lens of faith, this budget, on balance, continues to ask our nation's working poor to pay the cost of a prosperity in which they may never share. We believe this budget remains unjust. It does not adequately address the more than 36 million Americans living below the poverty line, the 45 million without health insurance, or the 13 million hungry children . . . Therefore, we ask Congress to reject this budget and begin anew. Mr. President, with a budget we have a chance to make a difference. We have a chance to make a difference for working families and for millions of Americans who work hard every day, who care for their families, who want the best for their children, their communities, and their country. This budget should make a difference for them. It should be a budget for America, a fair budget that improves the lives of average Americans. That is not this budget. President Bush and the Republican Congress had a chance to make a difference and they failed. In this budget, they choose instead to lavish more tax breaks on the wealthy at the expense of poor Americans who rely on Medicaid and at the expense of parents who want to send their children to college. It is Medicaid, strike one; education, strike two; and this budget is strike three. We ought to throw it out. Here is how this budget harms education in America. Education is the golden door to opportunity for our citizens. Parents know that education makes the American dream possible for their children. Education is essential to our future competitiveness and our strength as a nation. We cannot compete in the world without skilled workers. We cannot maintain a strong defense without a skilled and dedicated military. The budget proposed by the President and the Republican leadership in Congress fails our future. It fails American families struggling to pay for their children's college education. It fails American workers seeking to improve their skills and secure better jobs to support their families. It fails our companies looking for the best workers. It fails our military looking for the brightest recruits. It weakens America as we strive to compete in the global economy and maintain our security in a dangerous world. American workers are being battered by the tidal wave of globalization and this budget does nothing for them. Nothing. Since this administration has been in office, 2.8 million manufacturing jobs have been lost. By the year 2015, 3.4 million jobs are at risk of being sent overseas. This chart demonstrates, according to Forrester Research, one of the most authoritative analytical groups in terms of jobs being outsourced, the job outsourcing projections we are facing. Do you think there was any effort at all in this budget conference to take into consideration this flow line, to be able to take the remedial steps by providing additional skills to our workers, such as training, increasing vocational schools, commitment in terms of adult education, continuing the upgrading of our skills? Absolutely not. The wages of average workers are going down at a time when the cost of living is going up. At the same time, other nations are producing increased numbers of workers with advanced skills. China, today, is graduating 300,000 engineers; India, 200,000 engineers; the United States of America, 50,000 engineers. Better than half of those foreign nationals who graduate in the sciences from American universities are going back overseas. How are we going to be able to maintain national security? How are we going to be able to maintain our economy with these flow lines? Look at what has happened since 1975 with regard to American production of scientists and engineers. The United States in 1975 was third in the world. The United States today is 15th in the world and we are in a downward slide. This Senate said we were going to change that flow line. This Senate went on record by supporting, Republicans and Democrats alike, $5.4 billion to make sure we were going to be able to graduate 50,000 to 60,000 more engineers and scientists a year. What did this conference do? They said, no, no. Did they say, we will give you 15,000 or 20,000 engineers? No. Or 10,000? No. Or 5,000? No. Or 1,000? No. Zero. Effectively, they zeroed that amendment out that had Democratic and Republican support alike not only with regard to math and science but also with regard to the TRIO Program, the Upward Bound Program, the GEAR UP program, the vocational education program, adult literacy programs, all the programs that provide additional training and help and assistance. For the first time in a decade, this budget cuts the education budget. Page 34 of this budget, two-thirds of the way down, are the projections of 2005 through 2010. It is cutting our education commitment by some $15 billion over the next 5 years--not increasing it, not even holding its own--cutting education. Rejecting the Senate amendment that added $5.4 billion, the conferees instead cut $15 billion in the discretionary education budget. If our country is to remain strong in this rapidly changing world, if our economy must work for everyone, every American must have an equal chance at the American dream. No Child Left Behind is not just a political slogan; it is a solemn pledge to every parent and every child in America. But this budget leaves 3 million children behind. In 2006, 3 million children are left behind. Remember our commitment, that all children were going to reach proficiency over the period of the next 12 years? Under this budget, by 2013, we will be leaving 4.8 million children behind on the projections we have. This budget cuts student aid, helping young people who would be able to go to college. Where do we find that in this budget? In the reconciliation part, it talks about $13.6 billion in cuts; $7 billion will come from the student aid program and $6.6 billion will come from pensions. That means the companies are going to have an increased tax. Companies will have to pay more into the Pensions Benefit Guaranty Corporation, big companies and small companies. That will discourage companies from maintaining their pension programs. That is what the administration wanted. We had offsets for our amendment of $5.4 billion. What were the offsets? Closing corporate tax loopholes. Imagine the Republican majority saying all right, Senator Kennedy, maybe you will close the tax loopholes you have identified, but not ours. But that is not the case. Those tax loophole closure provisions already had passed virtually unanimously in the Senate previously. The Senate voted for them and then did not use them, did not close them completely previously. Corporate tax loopholes to pay for education and training: That was the choice for the Budget Committee. And they said no to education, no to training, and yes to the corporate loopholes. This budget with regard to education, is important not only for those who are going to college but for those who are trying to make it through K-12. Every child and every parent ought to understand the judgment made at the instigation of the leadership of the Republican Party--and this President--to make a reduction of $15 billion in education for the K-12 education; $13 billion in terms of higher education and the pension program; and the elimination of the $5.4 billion. We could have added funding for education. Instead this budget cuts education. Money is not everything, but it is a clear indication of a country's priorities. What we are talking about with these investments, we were enhancing the Pell grant which would be available to 5.3 million young Americans who are qualified, are talented, and able to go to school but are having hard times making ends meet, and help and assistance to working families. That is what we were interested in doing. That is what was turned down.

Mr. KENNEDY. I yield.

Mr. KENNEDY. The Senator is absolutely correct. That was passed and accepted by Republicans and Democrats alike on previous legislation and was never incorporated, never utilized, as we say around here. So there had been an agreement that these were the most egregious loopholes and, therefore, we used that as an offset for the increase of the $5.4 billion in education funding. The conference came back and said, no, we want those loopholes back and we are going to cut education for the neediest children, the TRIO Program, the Upward Bound Program, vocational education, and cut back on scholarship programs for the sons and daughters of working families in middle America. That is what is in this budget in education.

Mr. KENNEDY. I was listening to the Senator's comments earlier about the foreign policy implications of debt. He has been active in areas of education. He knows from his own experience in the Foreign Relations Committee, the Banking Committee, the Joint Economic Committee, what is happening in the other countries. What we saw on the front page of the Washington Post last week was that China was reducing their overall numbers in their military. What they are doing is enhancing their research and development and education and training programs because they are going to go smaller in terms of the total numbers of people in the military and go more into high-tech military equipment which require high level training and high skills. Would the Senator not agree with me? They are graduating 300,000 engineers, and India is graduating 200,000 engineers. And General Electric has just moved its top research center over to--where? to Maryland or to Massachusetts? no--to India. And DEC, one of the leading, innovative companies in this country, has just opened their new research facility, hiring 3,000 Indian engineers. We are not just exporting jobs, we are seeing the export of research and technology. And what is our response? Cutting back on training young Americans and giving more tax breaks to individuals. I say to the Senator, who has been here for years as a member of the Foreign Relations Committee, isn't he troubled by these flow lines, not only with regard to our national security but in terms of our ability to be competitive?

Mr. KENNEDY. The Senator is----

Mr. KENNEDY. The Senator is correct.

Mr. KENNEDY. Well, the Senator is exactly correct. If we think we are going to have the technological advantage in another 20 years, either commercially or militarily, with these kinds of flow lines, then we are dreaming dreams that never will exist. This is absolutely preposterous. We have had an excellent presentation on the overall economic implications of this conference report, but we are talking about the human investment that makes the difference for us to be No. 1 competitively, both militarily and commercially. The other point I want to mention to the Senator is that the loopholes we closed were the loopholes that were tax incentives for corporations to move jobs overseas. Do we understand? We, as a country, are concerned or should be concerned about outsourcing, sending jobs overseas. Now we are seeing that not only the jobs are going overseas, the research is going overseas, the education advantage is going overseas, the debt control is going overseas. And we are seeing the incentives to move those jobs overseas with the tax loopholes we closed. But did the Republican budget conference keep the loopholes closed? No. They restored them. They restored them. They are back, now available to companies to go ahead and outsource American jobs. This is a performance that just defies reason--we heard over the course of the campaign, which was not all that long ago, how everyone was talking about--Republicans and Democrats--what we were going to do about outsourcing. They have given their answer, and they have given it to us tonight.