Ted Kennedy

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I urge my colleagues to vote against the nomination of Jeffrey Sutton to the Sixth Circuit. I am not convinced that Jeffrey Sutton will be fair and openminded in the range of issues that would come before him; in particular, those on the balance between Federal and State power and the ability of individuals to enforce their civil rights in court. Mr. Sutton has been the most visible advocate in the rightwing movement to weaken the basic civil rights laws that have brought our country closer to equal opportunity for all of our citizens. Because of the civil rights laws enacted over the last 40 years, we have increased opportunities for minority citizens in all aspects of our Nation. Women and girls have many more educational and sports opportunities. People with disabilities have new opportunities to fully participate in our society. Without the Civil Rights Act of 1964, the Voting Rights Act of 1965, the Housing Act of 1968, the enactment of title IX in 1972, and the Americans with Disabilities Act in 1991, these extraordinary advances could never have been achieved. All of these laws had strong bipartisan support from Democrats and Republicans. Mr. Sutton has been at the forefront of a campaign to weaken many of these civil rights laws by claiming that Congress has no power to make these laws enforceable against the States or by claiming that individuals cannot enforce these rights in court. Unfortunately, Mr. Sutton has often found willing support in recent years by five justices of the Supreme Court. Over the last decade, a narrow majority of the Supreme Court has ushered in what some are trying to call the ``new federalism.'' Five justices have rewritten many of the rules on the power of the Federal Government, in some instances overturning their own precedent and ignoring long-standing constitutional language to do so. More Congressional statutes have been struck down or severely limited by this Supreme Court than at any point since the now-widely discredited Supreme Court of the 1930s which attempted to block the progressive legislation of the New Deal. The agenda in Mr. Sutton's advocacy is all too clear. It's to reduce the power of the Federal Government to protect civil rights. Our constitutional system was founded on respect for the States. But the Civil War Amendments gave broad power to the Federal Government to enact civil rights statutes and make them enforceable against States. Mr. Sutton's advocacy clearly undermines these profound changes made over a century ago in our Constitution. The human impact of Mr. Sutton's victories at the Supreme Court is also clear. Mr. Sutton's advocacy has meant that: Individuals like Patricia Garrett, a breast cancer survivor who was demoted after working for seventeen years for the University of Alabama, cannot seek damages under the ADA; workers over 40 who are fired or demoted from their state jobs because they are considered too old have no effective federal remedy for age discrimination. In a recent case, a supervisor in a state agency fired a plaintiff because of his age and told the jury that ``In a forest, you have to cut down the old, big trees so the little trees can grow.'' The plaintiff in this case was fired at the age of 48. Sutton's advocacy has also meant that: Individuals can no longer bring suit under regulations implementing the 1964 Civil Rights Act. This makes it difficult for Bonnie Sanders and Rose Townsend to remedy racial discrimination in their low-income minority community in New Jersey which suffers high rates of asthma and respiratory illnesses from the large number of contaminated waste sites and superfund sites unfairly placed in their small community; persons who complain about gender discrimination in school sports or education programs can be fired or demoted without being able to bring a challenge under Title IX's provisions. Mr. Sutton's response to many of the concerns raised about his record is that he was making arguments on behalf of his client. All of us understand that the arguments lawyers make in their briefs or in oral arguments do not necessarily represent their own views. But Mr. Sutton's claim that he is not seeking to advance a broad States rights agenda is absurd. He admits that he has not been involved before the Supreme Court in any cases on the other side of the issue--he has not sought to defend Federal power to enact civil rights laws. He consistently represents only those States--and there are many States on the other side--who want to limit the scope of Federal civil rights laws. Indeed, Mr. Sutton has stated that he is ``on the lookout'' for States' rights cases. He is a top officer of the Federalist Society, and he has repeatedly expressed his views on the question of Federal and State power. He has expressed his ``love''--he actually used that word for making State sovereignty claims, even when his arguments are unpopular. He has characterized questions of federalism as a ``zero-sum'' game, an endless battle between the Federal and State governments. Mr. Sutton called our attention to a few cases in which he has defended the rights of people with disabilities. I commend him for those cases. But I find it curious that we are meant to believe that those few cases reflect his real views on civil rights, while his advocacy in major States rights cases in the Supreme Court reflects only the views of his client. For every plaintiff like Cheryl Fischer-- the blind woman whom Sutton represented in his Government capacity after she was denied admission to medical school--thousands more were harmed by his advocacy to deny civil rights protections. The case that casts the most doubt on Mr. Sutton's claim that he was merely representing his clients and that demonstrates his activism in support of States' rights is Westside Mothers. Poor children and their mothers had challenged Michigan's failure to provide adequate dental services, as required under Medicaid. They were not claiming money damages. They only wanted the State of Michigan to provide the health care required by Federal law. They brought suit under section 1983, which the Supreme Court has long held allows persons to bring claims for violations of Federal statutes. Mr. Sutton argued in a friend-of- the-court brief that these children could not enforce their Medicaid rights using section 1983. The district court accepted his arguments, but the Sixth Circuit reversed--unanimously. If Mr. Sutton's arguments had prevailed, it would have limited the enforcement of a wide range of spending power statutes, contrary to more than a quarter-century of Supreme Court precedent. He would have effectively closed the court house doors to: Working parents in North Carolina who drove up to 3\1/2\ hours each way to obtain dental care for their children, because they could not find a dentist closer to home who would accept Medicaid--even though the Medicaid law requires States to ensure an adequate supply of providers; children with mental retardation and developmental disabilities in West Virginia who faced institutionalization because they could not get Medicaid to pay for the home-based services they needed, even though the Medicaid law requires States to cover the services; families in Arizona who were not receiving notices or hearings when their Medicaid HMOs denied or delayed needed treatments, even though the Medicaid law requires States to provide those rights. Mr. Sutton's advocacy, if he had prevailed, would have closed the doors to relief for all these individuals. Mr. Sutton even sought to achieve this result by encouraging the district court to ignore Supreme Court precedent. He failed to cite in his opening brief the leading Supreme Court cases that allowed plaintiffs to bring the challenges. In his reply brief, he told the district court that it need ``not be overly concerned'' with this precedent. It is very disturbing that a judicial nominee would be so cavalier in his dismissal of Supreme Court rulings, and would even invite the lower court to disregard it. In response to questions about the Westside Mothers case, Mr. Sutton did not back away from the positions he took in the case. He continued to maintain that the far-reaching arguments he made were supported by the law. The Department of Justice and over 75 law professors, liberal and conservative, filed their own friend-of-the-court briefs to emphasize that Mr. Sutton's view, if it had been accepted, would radically change the law. One of the professors who wrote to us about Mr. Sutton's views in this case was Professor Douglas Laycock. He said that while Mr. Sutton persuaded the district judge that none of the Supreme Court's precedents was binding, his arguments were actually in defiance of settled law. As Professor Laycock wrote, ``The truth is that the power to enforce Federal law by suits against State officers was settled and fundamental.'' Professor Laycock concluded by saying: ``What Westside shows is Sutton aggressively creating new doctrine to restrict or overturn settled law, leading the way at the frontier of the campaign to roll back Federal power and leave citizens without effective protection for their Federal rights.'' Mr. Sutton's advocacy in this case, far beyond what the Supreme Court has ever held, raises major concerns that he will continue to follow his own extreme views on what the law should be if he is confirmed as a judge. The issue is not whether Mr. Sutton dislikes disabled people. It is not about whether he is a good man. He is very personable, highly credentialed, very intelligent. The question is whether he is committed to the principles of the Constitution, including genuine enforcement of Federal civil rights laws. His record fails to show that he will be able to set aside his own extreme agenda in rolling back Federal power. Many of the White House nominees to lifetime appointments to our Federal courts of appeals raise such a question. Those courts are charged with making decisions vital to the everyday lives of American people, but far too many of them have records that are extreme. Their goal is to use the Federal courts to limit the rights of workers, dismantle environmental protection, roll back civil rights, undermine the rights of women, and to reject the right of privacy. When the White House submits nominees who show that they will be fair and open minded in the cases that come before them, we should all support them. Judge Edward Prado, for example, a nominee to the Fifth Circuit, is one such nominee. He is a Republican. He likely holds views with which some of us disagree. He has shown, however, in his time on the bench that he is committed to the rule of law and to honoring the Constitution and the Federal laws, not reshaping the law to fit a right-wing ideological agenda. He was approved by the Judiciary Committee unanimously. There was not a single letter of opposition against him. He is ready to be voted on by the full Senate. Nominees such as Judge Prado should get our full support; nominees such as Jeffrey Sutton should not. The basic values of our society, whether we will continue to be committed to equality, freedom of expression, and the right to privacy, are at issue in each of these controversial nominations. If the administration continues to nominate judges who would weaken the core values of our country, roll back the laws that have made our country a more inclusive democracy, the Senate should reject them. No President has the unilateral right to remake the judiciary in his own image. The Constitution requires the Senate's advice and consent on judicial nominations. It is clear that our duty is to be more than a rubberstamp, and I urge my colleagues to vote against Jeffrey Sutton. I see my colleague and friend from Iowa in the Chamber. He is a member of our Human Resources Committee. In looking over several of these items, he can remember very well, as I am sure I can, the time and deliberation we took on a number of these legislative matters, such as the Americans with Disabilities Act. That legislation in one form or another was before the Congress probably 8 to 10 years before we were eventually able to work that matter through to acceptance. We had broad bipartisan support that said we were going to be an inclusive Nation, we were going to include those individuals who were facing the challenges through some form of disability, and we were going to be a better country because of that. The overwhelming celebration we had at the White House--I can remember the Senator from Iowa being there when President Bush 1 signed that bill and stated that he believed this was probably the most important single legislative achievement and accomplishment he had during the time of his Presidency. Guarantees were put into place in order to protect those who had some disability so that they would be able to have their rights protected. That is not what Mr. Sutton says. That is not what the holding is in his case in the Garrett decision. It points out in those cases he has outlined that the State employees will not be covered under the ADA and they will not have those protections. We on the Labor and Human Resources Committee had hearing after hearing and listened to the challenges the disabled people were facing in this country. We took time and listened to suggestions and recommendations from Republicans and Democrats alike so we could pass a meaningful bill to protect those individuals. We thought we did that and the President of the United States believed we had and the Justice Department thought we had at that time, but not Jeffrey Sutton. No, no protections for State employees. I never heard Jeffrey Sutton bring these ideas up before our committee or over in the House of Representatives. Maybe later on the Senator from Iowa can tell me whether he ever remembered that being brought up or whether or not we were attentive to our duty and our responsibility, or that it was the failure of our committee and the responsibility of the Senator from Iowa and the Senator from Massachusetts that we failed to provide those protections, because we believed that we had. We did not hear any opposition to it. The Senator from Iowa remembers the various lengthy hearings we had about age discrimination which was taking place in this country, about workers who were being singled out solely on the issue of their age. The Senator can remember the days and the weeks of hearings we had on that issue, and that the legislation we passed was supported by Republican and Democrat alike, but not from Mr. Sutton; one can go right ahead and discriminate freely on the basis of age according to his decision. We had not heard that--we never heard it from the Justice Department during that period of time. Many of these things occurred during the time when we had a Republican Justice Department which had supported this legislation. The Senator has talked about the Violence Against Women Act legislation, to which Jeffrey Sutton filed an amicus brief to say there is no civil remedy under the Violence Against Women Act. The Senator can remember the time we spent on that legislation. Then there was the Religious Restoration Act on which my friend from Utah and I worked long and strenuously, inviting constitutional authorities from all over this country to help us shape legislation to make sure we really were going to move ahead in the protection of rights to be able to practice one's own religion, but we were not able to do it under the holding of Mr. Sutton. Then, finally the striking down of title VI of the Civil Rights Act, which is basically an opportunity for individuals, primarily poor, primarily men and women of color, when there are going to be actions that are going to be taken which are so blatant and flagrantly discriminatory that puts their lives and their health at risk--no, no, that particular title VI of the 1964 act was going to be struck down as well. The common factor is--and the Senator from Iowa would agree--the kinds of protections we are talking about in such legislation as this is for the most vulnerable, in many instances the weakest people, in our society. We have heard from those who are going to defend Mr. Sutton that that is not really Jeffrey Sutton; that he was just taking a case at a time. Well, he has taken all of these cases, and he has looked for more, and he has never been a spokesperson for the opposing view in terms of defending these individuals. We have a difficult time in terms of providing these protections for individuals who are being left out and being left behind. We are always reminded every single day in this city and in this country how those with power and those with wealth are able to take care of themselves very well. But we are talking here about those individuals who had protections under these various statutes who by and large came through our committee after weeks and months of hearings, where there was a bipartisan effort to try to ensure that legislation was carefully drafted and focused and attended to, but they do not meet the test of Jeffrey Sutton. I say that Jeffrey Sutton does not meet my test either.

Mr. KENNEDY. I thank my friend from Iowa for giving life to the points I tried to make about the kind of due deliberation we had on the different pieces of legislation which came through our committee and for which we have a good deal of awareness and knowledge. I remember when we considered the Americans with Disabilities Act. We would have such questions: How does it apply to a ski lift if someone comes up and is disabled? How many chairs will have to be on a ski lift? We were asked every conceivable policy question, wondering what would happen if it was a little bookstore with one person in it and a blind person walks on in: is the person at the cash register going to have to go back and help the blind person find the books or will they continue to be able to look after the cash register? These are the kinds of questions we had coming out of our ears; so many people were skeptical of taking that kind of action to give protections to our fellow citizens, over 40 million in this country. We faced every possible challenge on these issues. The Senator was there. But suddenly now we find a new way of rolling all that back. Who is the author? Mr. Sutton. We heard from the Justice Department during that period of time. There was never any kind of question from the Justice Department. I ask the Senator from Iowa, does the Senator remember that the Justice Department commented--I hope you understand you are getting into a real hornet's nest, from a constitutional question. Did you hear that with regard to age or protections of people under the 1964 Civil Rights Act or the Violence Against Women Act? Were we ever told by any Justice Department, Democrat or Republican: Absolutely no. Here we have a nominee who was able to get a viewpoint and a position that has been effectively undermining those kinds of protections. He has been doing it step by step by step. I, for one, am not prepared to vote because the next one who is going to come will come right out there on the issues of protection on the basis of race, the last major kind of civil rights issue. That is the large enchilada this is building up to. As we know, slavery was written into the Constitution and this country has paid an extraordinary price to free us from forms of discrimination. We fought a civil war and experienced all the pain, suffering, tears and blood by Dr. King and others. It was from that strength with the passage of the legislation we moved ahead to try to eliminate discrimination in other forms, discrimination against the disabled, discrimination against the elderly, discrimination against women. And here we have the architect to undermine those commitments. I, for one, am not prepared to vote to take advantage and say maybe he will just stop here and not see a continued rollback. I agree with the Senator. He is a very fine person and we have a high regard for him but there are many other people that are fine and for whom we have a high regard. We have a responsibility, I believe, that Supreme Court nominees ought do have a commitment to the fundamentals of the Constitution. I am not prepared to take a chance on where he is going to go in the future. I thank the Senator for his excellent presentation this afternoon. I think it has been very helpful.

Mr. KENNEDY

Mr. KENNEDY. Madam President, America faces a crisis because of our lack of preparedness for a bioterrorist attack. For months, we've worked to develop a fair, reasonable package to end this crisis. Today, we can finally say that we have an agreement, and I commend Senator Gregg, Senator Frist, Senator Mikulski and all our colleagues on the Health Committee for all they've done. I also thank the many representatives of nurses and other health providers, police officers and fire fighters for working with all of us to create a fair compensation program. We have come a long way and we're grateful for their intense commitment to this urgent challenge. Smallpox is one of the cruelest, most contagious, and deadliest diseases ever known. Modern medicine has eradicated this disease in nature, but unfortunately is has been preserved as a weapon of war. The former Soviet Union weaponized the deadly virus--and control over these dangerous biological materials is often weak. Other nations probably have stocks of the virus--and none of us can be sure that the virus won't find its way into the hands of a terrorist. If we remain unprepared, an attack with smallpox could kill vast numbers of Americans. Smallpox is deadlier than tanks, or bombs. It is more lethal than machine guns or rocket-propelled grenades. It threatens the security of every American. We can and must protect our country against the use of smallpox as a weapon. Vaccination provides almost complete protection against the disease-- but the protection can come at a high price in some cases. For an unfortunate few, it can cause serious side effects such as encephalitis, blindness or severe infections. Recent deaths after the vaccination of civilian and military personnel have raised concern that the vaccine may cause heart attacks. The number of people who experience these devastating effects is small, so the cost of meeting their needs will not be great. But the failure to meet their needs can be devastating for them, and devastating for the overall preparedness effort. At long last, after many negotiations, we can now say that the nation's first responders will have an effective compensation program. They deserve it and our nation's security demands it. The agreement we have reached ensures that those who participate in the vaccination program will receive fair compensation if they suffer side effects from the vaccine. The compensation package is significantly more generous than the original proposal. Workers who are permanently and totally disabled will receive two thirds of their lost wages--three quarters if they have dependents--up to $50,000 a year, with no lifetime cap on those benefits. Workers who are temporarily or partially disabled will receive the same benefit, but with a lifetime cap of $262,100--the same cap as for firefighters and police officers. The children of anyone who dies as a result of vaccination will be eligible for the same benefits as those with permanent and total disability until they reach 18 years of age. The intent of the bill is that these benefits should be exempt from taxation, as in other worker compensation programs, including the Public Safety Officers Benefit program. The intent is also that these benefits be indexed for inflation. The benefits in this plan will go further than in the original plan in improving the health of those who are injured. Instead of limiting benefits to medical services and items needed only for immediate treatment of injury, the plan covers a wider range of medical needs including rehabilitative care and palliative care. Our agreement also takes the important step of extending eligibility for compensation to all workers called upon to receive the vaccine. There are no deadlines to coerce persons into signing up for the program. Thanks to the effective work of Senator Mikulski, the bill now includes strong provisions to make sure that the public has adequate information about the risks of vaccination, the voluntary nature of the program, and the availability of potential benefits and compensation. the bill also ensures voluntary screening for potential participants to identify health conditions that could put them at risk. Medical follow- ups will evaluate adverse health effects, and effective screening and counselling will reduce them. So far, the vaccination plan is faltering. Only a small fraction of those who we rely on to protect us--the men and women in our hospitals and fire departments and police departments--have been willing to have smallpox vaccinations. They know the risks, and they worry that if they are injured or killed by the vaccine, they and their families will not be compensated adequately. That is why it is so important to guarantee help for persons no longer able to work as a result of reactions to the smallpox vaccine, and to guarantee that their children have financial security as well. Under certain circumstances, those who have been vaccinated can spread the virus used in the vaccine to others and cause them to become ill. Recently, concerns about the safety of the vaccine were raised by two heart attack deaths among the 31,000 civilians who have been vaccinated, and one heart attack death among the 300,000 military personnel who have been vaccinated. Five other civilians suffered heart attacks that were not fatal. No one knows whether the heart attacks were the result of the vaccine--but they have added new concern about the vaccination. This agreement is a major step forward. We still have far more to do to be fully prepared for bioterrorist attacks, but this agreement is a major step forward against what could well be the worst of all terrorist attacks, and I urge the Senate to approve it.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the budget that passed the Senate 2 weeks ago was not a good one. The budget which returned from conference today is much, much worse. It provides for far larger tax cuts--totaling more than a trillion dollars. It provides less resources to meet our urgent domestic needs in education, in health care, and in homeland security. It relies on an unprecedented parliamentary gimmick in a desperate attempt to force a bigger tax cut through a reluctant Senate. The Republican leaders who controlled this conference had a single goal-- more and deeper tax cuts primarily benefitting the wealthiest taxpayers. This budget clearly shows that they are willing to sacrifice the well being of the American people and make a mockery of the budget process to achieve their goal. We should have the courage to reject it, and enact a responsible budget in its stead. The conference report nullifies nearly all of the improvements which were made to the budget on the Senate floor. A majority of Senators reduced the size of the overall tax cut. The Republicans in conference raised it back up by $400 billion, from $857 billion to $1.23 trillion. A majority of Senators reduced the amount of tax cuts which could be fast-tracked under the reconciliation process to $350 billion. The Republicans in Congress are attempting to substantially increase that number through a parliamentary gimmick. On the floor, a majority of Senators voted repeatedly to provide additional resources for our top domestic priorities. The Republicans in conference eliminated most of those gains, reducing domestic spending this year by $7 billion. Less for education. Less for health care. Less for homeland security. A majority of Senators should now defeat this irresponsible conference report. The manner in which the conference report deals with the size of the tax cut is particularly disturbing. It has been designed to maximize the amount of new tax breaks which can be fast-tracked through the Senate. The $350 billion limit on the amount the Finance Committee can report out under reconciliation is a sham. Under this budget resolution, when the tax bill returns from conference, it can provide for up to $550 billion in new tax breaks and still be protected by reconciliation. That is outrageous. Only 2 weeks ago, a bipartisan majority of Senators said $350 billion would be the limit. It was all the Nation could afford. In just 2 weeks, the number has grown by $200 billion. Why? Because the Republican leadership is desperately trying to save the President's ill-advised elimination of the tax on dividend income. That is not a tax cut to help working families and stimulate the economy. That is a tax boondoggle for the wealthy few. Half of all the tax benefits from the elimination or reduction of the dividend tax would go to the richest 1 percent of taxpayers, and 80 percent of the benefits would go to the wealthiest 10 percent of taxpayers. It is unaffordable. It is grossly unfair. No one can claim with a straight face that this is a moderate budget. The impact on education is devastating. The Republican conferees cut $20 billion in education and training resources over the decade from the Senate passed budget. They stripped the Murray amendment which would have increased funding to make real the promise of No Child Left Behind. They stripped the Kennedy-Dodd-Collins amendment which would have increased the Pell grants of 4.8 million students struggling to pay higher tuition costs. To my constituents in Massachusetts this will mean a loss of $24 million in Pell aid. The Republican leaders who dictated this conference report ignored the education concerns of a bipartisan majority of Senators. And that same bipartisan majority should now reject this shameful budget. The budget resolution before us actually reduces funding for the No Child Left Behind Act school reform and cuts over half a million children from after school programs. How can President Bush abandon his unequivocal promise of full funding for the school reforms required by the No Child Left Behind Act? That legislation was signed into law with great fanfare by the President just a year ago. But when the klieg lights go out and the bunting comes down and the cameras leave, the money isn't there. The Republican budget provides $8.9 billion less than we promised America's children. Six million children are being left behind. On the floor of the Senate, we added an additional $40 billion to help the uninsured obtain health coverage. This was an expenditure which even the White House supported. But not the Republican conferees. They deleted it so there would be $40 billion more to finance their reckless tax cut scheme. Helping families get health care is obviously not a priority for them. This budget has far less funding than is necessary to provide a meaningful prescription drug benefit for all seniors. It follows the administration's grossly unfair plan requiring the elderly to give up their family doctors and go into HMOs in order to obtain any real assistance with the cost of their drugs. Yet Republicans defeated amendments to increase the amount of money available for the prescription benefit and to make the benefit available to all seniors, not just those in HMOs. As a result, many seniors will continue to go without the medication they need every day to stay well. The budget also contains the administration's plan to convert much of Medicaid into a block grant, reducing the long-term funding which is available to provide health care for the needy. The Republican block grant program would leave many innocent victims in its wake--sick and needy children and their parents, the disabled, and low-income workers and elderly. States are, in fact, being given a financial incentive to cut back coverage for those in need. The administration plan would even abolish the highly successful CHIP program, which is providing five million children with a healthy start in life. CHIP would be rolled into the block grant, with no guarantee that all of these children would continue to receive health care coverage. Budgets are the way a nation sets its priorities, and the priorities in this Republican budget are profoundly wrong for America. It fails to address the real problems of real families. It appears to have been drafted in a sound-proofed room so that the voices of working men and women, students and senior citizens could not be heard. In the 2 years since President Bush took office, the well-being of American families has declined at an alarming rate. Ask most Americans how their lives have changed since President Bush took office, and they will tell you: declining job security; disappearing retirement savings; plummeting school budgets; rising college tuition; skyrocketing health care and prescription drug costs; Federal budget deficits threatening the future of Social Security and Medicare. With the economy stagnating and continuing threats from terrorists, these are not normal times. Our responsibility in Congress is to pass a budget that meets the challenges of our time. Instead of more tax breaks for the wealthy, we should be concentrating on our national security and our economic security. Surely, when our troops come home from Iraq, we want them to come home to a strong economy, with jobs that let them care for their families and save for a secure retirement. We want them to come home to better schools for their children, not schools facing drastic budget cuts, fewer teachers, and crowded classrooms. We want them to be able to afford health insurance, and know that their families will receive the quality health care they need. This budget fails all these tests. It rejects the steps needed to restore the economy, and instead embraces ideologically rigid policies that have not worked and will not work. In 2001, President Bush pushed a $1.3 trillion tax cut through Congress that disproportionately benefits the wealthiest taxpayers. Now, at his urging, this Republican budget calls for an additional $1.3 trillion in tax cuts, even more heavily slanted toward the rich. That is not the solution to the problems facing America's families. That is a strategy that will only add to their problems. Huge numbers of working men and women have lost their job security. As layoffs mount, they live in fear of being the next to be let go. There are 2\1/2\ million fewer private sector jobs in America today than there were just 2 years ago. Those looking for a job are finding it increasingly difficult to obtain one. The number of long-term unemployed workers has increased by nearly 200 percent since President Bush took office. Health insurance is becoming less and less affordable for millions of workers and their families. Over two million more Americans are without health insurance today than there were 2 years ago. One in ten small businesses which offered their employees health insurance in 2000 no longer do. The average cost of health insurance is rising at double digit rates--up by 11 percent in 2001 and another 12.7 percent in 2002--nearly four times the rate of inflation. The health care squeeze on working families is getting tighter and tighter. The cost of higher education is rising beyond the reach of more and more families. The gap between the cost of college tuition and the tuition assistance provided by the Federal Government has grown by $1,900 in the first 2 years of the Bush administration. As a result, the number of worthy students being denied the chance to go to college is growing each year. For millions of families, their retirement savings have seriously eroded in the last 2 years. The value of savings in 401(k) plans and other defined contribution plans has declined by $473 billion in the last 2 years. Many middle-aged workers who thought their retirements were secure are suddenly being forced to consider staying in the workforce longer and reducing their standard of living in retirement. These are the realities American families face today. It is no surprise that consumer confidence has dropped more than fifty percent since President Bush took office. To all these problems, the Bush administration has one answer--more and more tax cuts predominately benefitting the wealthiest taxpayers. In this current situation, the most irresponsible action Congress could take would be to accept the proposal of the Bush administration to enact major new permanent tax cuts. Yet, that is what this budget resolution does. The combined cost of the President's plan to exempt dividend income from taxation, accelerate the tax cuts for the upper income brackets, and make the 2001 tax cuts permanent would be over $1.3 trillion in the next 10 years. The conference report provides full funding for this plan. It will lead to an immense increase in the deficit which would trigger an additional $300 billion in interest costs on the larger national debt. We cannot afford the loss of an additional $1.6 trillion from the Treasury. Temporary tax cuts to stimulate the economy are affordable, but the President's large, permanent tax breaks are not. If the Republican plan is adopted, the Federal Government will not have the resources to meet urgent domestic needs in education, in health care, and in homeland security. The Republican plan will raid the Social Security Trust Fund for $2.6 trillion over the decade, threatening the benefits of future retirees. If Congress accepts the Republican budget resolution, the on-budget deficit will be nearly $4 trillion by 2013. More than three-quarters of that amount is directly attributable to the Bush tax cuts enacted in 2001 and the additional cuts proposed in 2003. The impact these new tax cut proposals will have is clear from this budget. When the President says ``no'' to obviously-needed spending on urgent domestic priorities such as education and health care, he says the war on terrorism requires us all to tighten our belts. The burden of these sacrifices falls mainly on low and middle income individuals and families. Yet the President refuses to ask the wealthiest taxpayers to share the burden. In the midst of his repeated calls on others to sacrifice, he is advocating over $1.3 trillion in new tax breaks primarily for those with the highest incomes. Such a policy is wrong and unfair. Under the President's ``economic growth'' package, households with annual income over $1 million would receive an average tax cut of nearly $90,000 each year. In contrast, households in the middle of the income spectrum would receive an average of less than $300 a year in tax benefits. Exempting dividend income from taxation will take $400 billion out of the Treasury over the next 10 years. Half of that enormous amount--$200 billion--will go directly into the pockets of the richest 1 percent of taxpayers. The White House apparently sees no need for the wealthiest taxpayers to share in the national sacrifice. It cannot be wartime for middle America but still peacetime for the rich. Despite the enormous amount spent on tax cuts, this budget resolution still does not provide the kind of stimulus that is needed to get the economy moving, nor does it provide help to those who are hurting the most. Under the Republican plan, less than $40 billion of the $1.3 trillion in new tax cuts will go into the economy this year when a stimulus is needed--less than $40 billion. There is no extension of unemployment compensation benefits to help the long-term unemployed. There is no aid to States and local communities which are struggling with an increased demand for the health care and human services they provide, at the same time their revenues have sharply declined. This budget will not help to bring an early end to economic stagnation. A recent analysis of the President's proposal to eliminate the income tax on corporate dividends determined that it is one of the least effective forms of stimulus, generating less than a dime of stimulus for every dollar of Federal revenue lost. This is further proof that the Republican tax cut plan is not about stimulating a stagnant economy, it is about further enriching the already wealthy. The Nation cannot afford the tax breaks in this Republican budget. The President's tax cut proposals must be scaled back substantially to a far more affordable level. Which of these choices will make the American community stronger and better able to face the challenges of the future? The decision to pass more and more tax cuts for the richest among us is a decision to ignore America's greatest needs. Now is the time for Congress to bring our policies back into line with our national values. Rejecting this conference report would be a good start. Unfortunately, most Congressional Republicans have made their choice. For them, bigger tax cuts have a higher priority than educating kids, providing a secure retirement for seniors, and making health care available and affordable to more Americans. The priorities clearly revealed in this Republican budget are not the priorities of the American people. Their voices have been shut out of the room where the real decisions are being made. If Congress does not change this budget, the American people will change Congress next year.

Mr. KENNEDY

Mr. KENNEDY. The economy continues to falter. Hundreds of thousands of hard-working men and women have lost their jobs, and consumer confidence is the lowest in 9 years. Americans are suffering. College graduates can't find jobs. Americans who have worked all their lives are out of work. Their unemployment benefits are running out. They are losing their savings, and watching their 401(k) plans plummet. They are being forced to take desperate measures--selling their homes, moving back in with their parents, or cashing in their retirement savings. Our first domestic priority should be to get America back to work. Democrats have a plan to do just that. The Senate Democratic proposal for economic growth will create more than 1 million jobs next year, three times as many as President Bush's plan. It will provide fiscal relief to states to avoid further lay-offs and make vital investments in the economy to achieve growth. But out-of-work Americans also need help and they need it now. The Economic Security Act I am introducing today will extend temporary Federal unemployment benefits for 6 months past the May expiration date. It will provide additional weeks of benefits as in past recessions and provide extended benefits to the more than 1 million Americans who have run out of benefits but still cannot find work. It will also give states the option to use Federal funds to extend coverage to part-time workers and low-wage workers. This bill will help more than 4 million workers, including 150,000 in Massachusetts. The unemployment rate remains high at 5.8 percent, with 8.4 million Americans out of work, and those numbers don't include discouraged workers, who have dropped out of the labor force, or those working part-time because they can't find a full-time job. When these workers are included, the true unemployment rate is 10.4 percent. Over the last two months, the economy has lost nearly half a million jobs. More than 330,000 jobs have been lost in Massachusetts, including 20,000 in Boston and 23,000 in Worcester. Such severe, persistent loss of jobs 2 years after the beginning of a recession is unheard of since the Great Depression. Richard Wilcox of Canton, MA has taken to standing on a street corner holding up a sign that says ``I need a job . . . 36 years experience: Insurance/Management.'' Thirty-six years of experience, and he has had only two interviews after a year of sending out hundreds of resumes. Mr. Wilcox is not alone. The crisis in our labor market has continued to worsen under the current administration's watch. Two and a half million more Americans have lost their jobs since the Bush administration took office, and the number of long-term unemployed has nearly tripled. The economy is still not showing clear signs of recovery, and the number of unemployed continues to grow. The administration's own budget predicts an average of 5.7 percent unemployment for this year. The Congressional Budget Office estimates that it will be 5.9 percent. In this bleak condition, unemployed workers deserve to be able to count on a further extension of benefits when the current one expires at the end of May. In the last recession, we enacted an extension of benefits five times with overwhelming bipartisan support. Now as then, out-of-work Americans need our help. In the last recession we also made sure that workers who ran out of Federal benefits but still could not find work were not left in the cold. Today, one in five unemployed workers has been out of work for more than 6 months. One million of these long-term unemployed are without jobs and without any safety net. With three unemployed workers vying for every job, workers across the county are losing hope. The current unemployment insurance system clearly needs to be modernized to cover today's workers. Two glaring defects stand out. In 1975, 75 percent of unemployed workers were eligible for unemployment benefits, compared to only half of such workers last year. Many of the unemployed who fail to receive benefits are part-time and low-wage workers. Only eight States provide benefits to unemployed residents seeking part-time work on the same basis as the benefits they provide to full-time workers. In addition, in all but a handful of States, low- wage workers are ineligible for benefits because their most recent earnings are not counted. Part-time and low-wage workers pay into the system, and they should be able to rely on it while searching for a new job. We must pass another extension of unemployment benefits before the current one expires at the end of May. We must not allow a repeat of last year, when Democrats asked eight times for an extension and eight times were told no. Ultimately, we were able to work on a bipartisan basis to provide benefits for out-of-work Americans, and I hope we can do so again this time. I look forward to working with my colleagues to see that Americans here at home who've been hit by these troubled economic times receive the support they need and deserve.

Mr. KENNEDY. Mr. President, today, my colleagues and I are introducing legislation to recognize the enormous contributions of immigrants in the military. The Naturalization and Family Protection for Military Members Act of 2003 will enable immigrant men and women of our Armed Forces to obtain easier access to naturalization, and it will establish immigration protections for their families if they are killed in action. In all our wars throughout our history, immigrants have fought side by side and have given their lives to defend America's freedom and ideals. One out of every five recipients of the Congressional Medal of Honor, the highest honor our Nation bestows on our war heroes, have been immigrants. Their bravery is unequivocal proof that immigrants are as dedicated as any other Americans to defend our country. Today, 37,000 men and women have the status of permanent residents, who are not yet citizens, but are serving in the Army, Navy, Marine, Air Force, and Coast Guard. Another 20,000 permanent residents are serving in the Reserves and the National Guard. Since the war in Iraq began two and a half weeks ago, eight of the dead, two of the missing, and two prisoners of war are immigrants to the United States. Only four were naturalized U.S. citizens. Granting these men and women posthumous citizenship is the right thing to do, but we must do more. This bill gives members of the armed services who are already lawful permanent residents, easier access to naturalization. It gives certain immigration benefits to their immediate family members in the event of their death. It would amend immigration laws: to allow lawful permanent resident military personnel to naturalize after serving 2 years in the military. They can participate in naturalization interviews and oath ceremonies abroad at U.S. embassies, consulates, and overseas military installations. Naturalization fees would be waived. Recruiting needs are immediate in wartime and readiness is essential. As the war in Iraq goes on and our commitment to ending global terrorism continues, more and more of these brave men and women are being called to active duty. Many of them are members of the Selected Reserve--Reserve and National Guard members subject to recall to active duty during a war or other national emergency. Many reservists have already been activated, and many more expect to be called up at a moment's notice to defend our country and assist in the war effort. They too deserve special recognition for their bravery and sacrifice. Our bill does just that. Lawful permanent residents who are members of the Selected Reserve will have naturalization benefits similar to those conferred on members of the regular forces on duty. They will have expedited naturalization during times of war or hostile military operations. Finally, our bill will protect the immigration status of immediate family members who were dependent upon their citizen or noncitizen's relative, if the relative was honorably serving in the military and was killed as a result of the service. We know the tragic losses endured by these families for the sacrifices their sons and daughters have made. It is unfair that they should have to lose their immigration status as well. Our legislation will amend the immigration laws to ensure that grieving immediate family members are given the opportunity to legalize their immigration status and not be threatened with deportation. Specifically, these family members--noncitizen spouses, children, parents of citizens and parents of noncitizens serving in the military who are killed as a result of their service--will be able to file or preserve their application for lawful permanent residence. The Naturalization and Family Protection for Military Members Act is a tribute to the sacrifices that these future Americans are already making now for their adopted country. They deserve this important benefit, and we urge the Senate to approve it.

Mr. KENNEDY

Mr. KENNEDY. The economy continues to falter. Hundreds of thousands of hard-working men and women have lost their jobs, and consumer confidence is the lowest in 9 years. Americans are suffering. College graduates can't find jobs. Americans who have worked all their lives are out of work. Their unemployment benefits are running out. They are losing their savings, and watching their 401(k) plans plummet. They are being forced to take desperate measures--selling their homes, moving back in with their parents, or cashing in their retirement savings. Our first domestic priority should be to get America back to work. Democrats have a plan to do just that. The Senate Democratic proposal for economic growth will create more than 1 million jobs next year, three times as many as President Bush's plan. It will provide fiscal relief to states to avoid further lay-offs and make vital investments in the economy to achieve growth. But out-of-work Americans also need help and they need it now. The Economic Security Act I am introducing today will extend temporary Federal unemployment benefits for 6 months past the May expiration date. It will provide additional weeks of benefits as in past recessions and provide extended benefits to the more than 1 million Americans who have run out of benefits but still cannot find work. It will also give states the option to use Federal funds to extend coverage to part-time workers and low-wage workers. This bill will help more than 4 million workers, including 150,000 in Massachusetts. The unemployment rate remains high at 5.8 percent, with 8.4 million Americans out of work, and those numbers don't include discouraged workers, who have dropped out of the labor force, or those working part-time because they can't find a full-time job. When these workers are included, the true unemployment rate is 10.4 percent. Over the last two months, the economy has lost nearly half a million jobs. More than 330,000 jobs have been lost in Massachusetts, including 20,000 in Boston and 23,000 in Worcester. Such severe, persistent loss of jobs 2 years after the beginning of a recession is unheard of since the Great Depression. Richard Wilcox of Canton, MA has taken to standing on a street corner holding up a sign that says ``I need a job . . . 36 years experience: Insurance/Management.'' Thirty-six years of experience, and he has had only two interviews after a year of sending out hundreds of resumes. Mr. Wilcox is not alone. The crisis in our labor market has continued to worsen under the current administration's watch. Two and a half million more Americans have lost their jobs since the Bush administration took office, and the number of long-term unemployed has nearly tripled. The economy is still not showing clear signs of recovery, and the number of unemployed continues to grow. The administration's own budget predicts an average of 5.7 percent unemployment for this year. The Congressional Budget Office estimates that it will be 5.9 percent. In this bleak condition, unemployed workers deserve to be able to count on a further extension of benefits when the current one expires at the end of May. In the last recession, we enacted an extension of benefits five times with overwhelming bipartisan support. Now as then, out-of-work Americans need our help. In the last recession we also made sure that workers who ran out of Federal benefits but still could not find work were not left in the cold. Today, one in five unemployed workers has been out of work for more than 6 months. One million of these long-term unemployed are without jobs and without any safety net. With three unemployed workers vying for every job, workers across the county are losing hope. The current unemployment insurance system clearly needs to be modernized to cover today's workers. Two glaring defects stand out. In 1975, 75 percent of unemployed workers were eligible for unemployment benefits, compared to only half of such workers last year. Many of the unemployed who fail to receive benefits are part-time and low-wage workers. Only eight States provide benefits to unemployed residents seeking part-time work on the same basis as the benefits they provide to full-time workers. In addition, in all but a handful of States, low- wage workers are ineligible for benefits because their most recent earnings are not counted. Part-time and low-wage workers pay into the system, and they should be able to rely on it while searching for a new job. We must pass another extension of unemployment benefits before the current one expires at the end of May. We must not allow a repeat of last year, when Democrats asked eight times for an extension and eight times were told no. Ultimately, we were able to work on a bipartisan basis to provide benefits for out-of-work Americans, and I hope we can do so again this time. I look forward to working with my colleagues to see that Americans here at home who've been hit by these troubled economic times receive the support they need and deserve.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, today, my colleagues and I are introducing legislation to recognize the enormous contributions of immigrants in the military. The Naturalization and Family Protection for Military Members Act of 2003 will enable immigrant men and women of our Armed Forces to obtain easier access to naturalization, and it will establish immigration protections for their families if they are killed in action. In all our wars throughout our history, immigrants have fought side by side and have given their lives to defend America's freedom and ideals. One out of every five recipients of the Congressional Medal of Honor, the highest honor our Nation bestows on our war heroes, have been immigrants. Their bravery is unequivocal proof that immigrants are as dedicated as any other Americans to defend our country. Today, 37,000 men and women have the status of permanent residents, who are not yet citizens, but are serving in the Army, Navy, Marine, Air Force, and Coast Guard. Another 20,000 permanent residents are serving in the Reserves and the National Guard. Since the war in Iraq began two and a half weeks ago, eight of the dead, two of the missing, and two prisoners of war are immigrants to the United States. Only four were naturalized U.S. citizens. Granting these men and women posthumous citizenship is the right thing to do, but we must do more. This bill gives members of the armed services who are already lawful permanent residents, easier access to naturalization. It gives certain immigration benefits to their immediate family members in the event of their death. It would amend immigration laws: to allow lawful permanent resident military personnel to naturalize after serving 2 years in the military. They can participate in naturalization interviews and oath ceremonies abroad at U.S. embassies, consulates, and overseas military installations. Naturalization fees would be waived. Recruiting needs are immediate in wartime and readiness is essential. As the war in Iraq goes on and our commitment to ending global terrorism continues, more and more of these brave men and women are being called to active duty. Many of them are members of the Selected Reserve--Reserve and National Guard members subject to recall to active duty during a war or other national emergency. Many reservists have already been activated, and many more expect to be called up at a moment's notice to defend our country and assist in the war effort. They too deserve special recognition for their bravery and sacrifice. Our bill does just that. Lawful permanent residents who are members of the Selected Reserve will have naturalization benefits similar to those conferred on members of the regular forces on duty. They will have expedited naturalization during times of war or hostile military operations. Finally, our bill will protect the immigration status of immediate family members who were dependent upon their citizen or noncitizen's relative, if the relative was honorably serving in the military and was killed as a result of the service. We know the tragic losses endured by these families for the sacrifices their sons and daughters have made. It is unfair that they should have to lose their immigration status as well. Our legislation will amend the immigration laws to ensure that grieving immediate family members are given the opportunity to legalize their immigration status and not be threatened with deportation. Specifically, these family members--noncitizen spouses, children, parents of citizens and parents of noncitizens serving in the military who are killed as a result of their service--will be able to file or preserve their application for lawful permanent residence. The Naturalization and Family Protection for Military Members Act is a tribute to the sacrifices that these future Americans are already making now for their adopted country. They deserve this important benefit, and we urge the Senate to approve it.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, all of us understand the enormous human tragedy that has been suffered by families in this country who have experienced the abduction of their children. We have had tragic situations in my own State of Massachusetts. All of us know the primary importance of taking every possible step in order to make our children safer. Secondly, if they are abducted, to rescue these children. And finally, to have an appropriate kind of a penalty for those who would be involved in such an extraordinary aberration of conduct and travesty of justice and cruel action. These reasons stimulated the Senate to pass the AMBER alert bill. We have passed it in the Senate twice already. First, we passed it once on September 10 of last year. I think many of us who supported it at that time were very hopeful we would have had speedy action by the House of Representatives and that they would have sent back to us. It did not seem to us it would take a great deal of time given the needs that are out there in the country. We could understand if the House might want to take a look at it for a few days but report back promptly. Nonetheless, we went through the session and there was no action by the House of Representatives. So, again, on January 21, 2003, it was sent over unanimously from the Senate of the United States, and no action later in January, no action in February, no action in March, and now, finally there is action in April. The House refused to act on these bills on both occasions. Instead, they sent over a conference bill loaded up with the provisions they knew would be strongly objected to in the Senate. We are enormously supportive of the AMBER bill, but we question and wonder why it should carry with it such extraneous kinds of material which this legislation in this conference report carries. In the final hours of the consideration of the AMBER bill in the House of Representatives, there was an amendment to the AMBER bill offered by Congressman Feeney. In a period of 20 minutes, it was accepted without any hearings. It was a part of the conference. The Feeney amendment affected the whole issue of sentencing, not just for these kinds of heinous crimes that take place against children but also against the underlying concept of our criminal sentencing provisions, affecting every type of criminal sentence, whether we are talking about terrorists, murderers, burglars or white-collar crime. The amendment had nothing to do with the abduction of children, but would affect all of the other circumstances. It was never very clear whether that was intended or not. What was brought to my attention and concerned me was the observation that was made by the Chief Justice of the Supreme Court. He observed the Feeney amendment will do serious harm to the basic structure of the sentencing guidelines system and seriously impair the ability of courts to impose just and responsible sentences. We are all for the AMBER legislation. We are all for the appropriate kinds of penalties for those who are going to violate the law, but this legislation is much more. However the Feeney amendment would do serious harm to the basic structure of the sentencing guidelines system and will seriously impair the ability of courts to impose just and responsible sentences. This is not just an objection from the Senator of Massachusetts, or from the Senate Democrats, this is an objection expressed by the Chief Justice of the United States. I was personally quite amazed that the Chairman of our committee did not believe this kind of change in the criminal justice system was sufficiently important. I am amazed that he would not support the position of some of us who were conferees who suggested that we ought to have a day of hearings to call in experts, perhaps even the Chief Justice of the United States, or Congressman Feeney or others who might be in favor of the amendment. This would be an opportunity to understand what the implications were and whether or not it was going to undermine the criminal justice system, as the Chief Justice of the Supreme Court has suggested. But, no, that was turned down. That suggestion that we have a hearing, chaired by Senator Graham of South Carolina, the chairman of our Criminal Justice Subcommittee on the Judiciary Committee was turned down. The suggestion that we might hold a hearing with the understanding that we would expedite any of the recommendations to make sure we were going to target whatever actions we were going to take on the subject matter of the AMBER circumstance, make sure we got it right, that was rejected and turned down. Then a second suggestion was made to ask the Sentencing Commission to study this and report back in 180 days. Then, we would have an opportunity to look at what the Sentencing Commission had recommended. We could then either accept it or reject it or take whatever action in 180 days. The House of Representatives has taken its time in sending this legislation over. We might be able to make a judgment about whether this should be done or considered in this particular way. Over the period of these past days, just prior to going to the conference, I was amazed at the kind of additional support I received for the Chief Justice's position. I am sure the chairman of the committee received it as well. The Judicial Conference of the United States said: The Judicial Conference strongly opposes these sentencing provisions because they undermine the basic structure of the Sentencing Commission and impair the ability of the courts to impose just and responsible sentences. We must note our concern and disappointment with the lack of careful review. Not 1 day of hearings; not 1 hour of consideration; 20 minutes of debate on the floor and the Senate Judiciary Committee virtually accepted it. Then it continues along to those three chairs of the Sentencing Commission. These are individuals who have been accepted and approved by advice-and-consent votes in the Senate: Dick Murphy, Richard Conboy, William Wilkins. William Wilkins, certainly one of the important conservative jurists who has served in the Federal court system, joined in saying: The sentencing provisions are farfetched and effectively rewrite significant portions of the Sentencing Reform Act of 1984. No hearings have been held on a number of significant provisions of the current legislation urged our rejection of it. The Conference on Civil Rights: The Feeney amendment would eviscerate the right to depart. American Bar Association: This provision would fundamentally alter the carefully crafted and balanced position formed by the Reform Act without the customary safeguards and legislative process by effectively eliminating judicial departures. The Feeney amendment strikes a blow at judicial independence and sends an unmistakable message that Congress does not trust the judgment of the judges it has confirmed to offices. Then we have the list of 618 professors of criminal law and procedure: Although adopted by the House with certainly no public hearings or debate, the Feeney amendment would effect a dramatic unwarranted change in Federal sentencing law. Eight former U.S. attorneys in the Southern and Eastern Districts of New York, one of the most important districts in the prosecution of crime, all, Republican--most Republican and a handful of Democrats' proposed legislation not only disregards the Sentencing Commission's unique role, it also ignores Congress's own admonition. Even Cato. Business Civil Liberties, an organization affiliated with the conservative Washington Legal Foundation, also said: It sets a dangerous precedent for further restrictions on Federal judges. All of these groups. All within a matter of a few days. We raised this in our conference and said we believe we ought to have the time, either for the Judiciary Committee or the Sentencing Commission, to review it if there were these kinds of observations and criticisms. I say this to underscore why these sentencing guidelines are important. I was here in 1968 when the Brown Commission was set up on the growth of violence in our society, criminal violence. The Commission made a series of recommendations. One of them was that we ought to recodify the Criminal Code because we had so many different ways of interpreting intent--willfully, wantonly, knowingly, unwillingly, lasciviously--all different kinds of mental tests that could be distorted and misrepresented. And we did. For the first time in 200 years, we recodified it; we took seriously the recommendations. Unfortunately, the House of Representatives failed in their responsibilities. But one of the other very important recommendations was because of the fact that one of the important reasons this Commission said there had been the growth of crime was the enormous feeling among those inside the criminal justice system and outside of the sentencing provisions that were so wildly out of whack--the same crimes in different jurisdictions and there was no confidence, either by the victims or the defendants or any, in the justice system--that the criminal sentencing provisions were effective, that they worked, or were based upon justice. So we went about it. We passed sentencing reform three different times in the Senate of the United States before the House of Representatives. It was finally worked out with the Reagan Justice Department. Strom Thurmond was very much involved. It was a bipartisan effort. So we were going to try to have some kind of rationality in the assigning of the penalties for crimes in this country. It is not without its failings. We understand that. There should be strengthening and improvement. We understand that. But it has worked pretty well. In fact, a number of States are in the process of adopting very similar guidelines. A number of the States are moving in the direction which we had established. That is enormously important. I think that is one of the things that has been effective. In any event, when the time came for this discussion, I said: Why, if we can't at least have an examination, since there is widespread application of these provisions, why don't we just take the provisions that apply to children, sex crimes, and say: OK, we'll let those particular provisions that happen to be particularly restrictive, we will let those apply to those kinds of conditions that are there for the crimes that are included in the AMBER legislation? I thought we had a discussion. I thought the chairman of our Judiciary Committee--who is not the chairman of the conference--the chairman of the committee agreed. I thought he agreed. Senator Hatch repeatedly stated that at Tuesday's conference meeting that his so- called ``compromise'' was limited to sex crimes and children. It retained much of the underlying Feeney Amendment and dramatically limited departures in all cases. In his own works, Senator Hatch's remarks at conference were ``It's important to note . . . that the compromise is limited to those serious crimes against children and sex crimes and does not broadly apply to other crimes''--and he put in a compromise and said to the Senator from Massachusetts, on the question of having this apply to the children-- this makes sense and this is what this compromise will do. This is what this compromise will do. These are the words that our chairman of our Judiciary Committee used: It's important to note . . . that the compromise is limited to those serious crimes against children and sex crimes, it does not apply aptly to other crimes. Page 31--what do you conclude from that? That the amendment he puts in was just as he implied, applied to children. Furthermore: It is important to note that the compromise is limited to these serious crimes against children--serious crimes against children and sex crimes does not broadly apply to other crimes. We're not changing the whole system, which I've tried to do, at the urging of not of my friend from Massachusetts, but judges and a number of other people. Page 37: Now, the compromise proposal would simply require judges to sentence these vicious defendants, child criminals, I mean defendants who are committing crimes against children, in accordance with the law--[didn't have to sentence them in accordance with the law]--and not seek to find new areas or new legal justification for reducing the sentences for these defendants without specific authorization for the United States Sentencing Commission. Do Members of this body believe that when you had a chairman of the Judiciary Committee filing an amendment, which we had not seen, and then give us assurance that that was the scope of that amendment, and then to find out that that was not true and have it apply in a number of other cases--would the members of the Judiciary Committee of the Senate feel that they have been treated fairly? No. The answer is no. It is important to note that the compromise-- Here it is again-- is limited to these serious crimes against children and does not broadly apply to other crimes, which is what the Feeney Amendment did. Now, look, I have to admit I had my own qualms about the totality of the Feeney amendment, and that's why I chatted with the distinguished chairman of the House Judiciary Committee, and that's why I chatted with a lot of others as we, and experts in the field, and I believe we've made a compromise here . . . . It just goes on. Then we received the assurances from the chairman of the Judiciary Committee, and--listen to this--Chief Justice Rehnquist is worried about the breadth and scope. He is not worried about this. Where did he get that information? Where did you get that information, Senator Hatch? That is not an accurate statement. I don't think any Federal judge should worry about which language. They know this language is to protect our children in our society. We are limiting it to that. I am trying to solve this problem. I could go on. The fact is, in just a cursory examination of that language, we saw that was not the case. In fact, the Hatch amendment went way beyond sex crimes and children. It retained much of the underlying Feeney amendment and dramatically limited departures in all cases and eliminated for all cases departures based on age and physical impairment, gambling dependence, aberrant behavior, family ties, military, and good works. This is what is still in there. It establishes de novo appellate review of all departures. That applies to every single sentence. It goes to the circuit court. That says to the circuit court judges: You will look not at the trial court; look at the facts and the sentences, but you look to de novo, overturning a unanimous Supreme Court. It applies to every case, overturning a Supreme Court decision. It prohibits in all cases downward departures on remands of new grounds. It also chilled the departures in all cases by imposing burdensome reporting requirement on judges who depart from the guidelines. And it directed the Sentencing Commission to amend the guidelines and policy statements ``to ensure that the incidence of downward departures is substantially reduced'' in all cases. In the departures, in all cases, by imposing burdensome reporting requirements--do you know what the requirements are? They have to tell someone in the Justice Department. Guess who. The Attorney General. Every time you depart from the guidelines, the Attorney General will be notified. Talk about a blacklist for judges. The Attorney General will know. Do not think that does not send a chill into every judge, to know if he is going to make that kind of judgment, decision, in accordance with the sentencing guidelines, that the Attorney General is going to know why. Obviously, the proponents of the Feeney amendment understood it--in order to chill that--to create a blacklist of judges. And everyone knows that list will be published. That will be made available to the committee. It will be made available in every community where the judges go. It still applies, not just to children's issues but to all cases-- does everyone understand that?--in all cases. Then it directs the Sentencing Commission to amend the guidelines to ensure that the incidents of downward departures are substantially reduced in all cases, saying, look, we do not like these downward departures, in spite of the fact that 80 percent of them were requested by the Government and in spite of the fact that anytime you have a downward departure, that is sufficient grounds to appeal. If there is a concern, they can appeal that. If it is outside the scope of the sentencing provision, it is remanded. That is the way the system works. That is what we included. If it will be excessive, in terms of downward, there is a remedy: Go to appeals. It has worked pretty well. If not, let's go back and take a look and have a hearing. But absolutely no--absolutely no. So then we had spotted those raised, and we had the continued assurances from the chairman of the Judiciary Committee that we did not understand it. We just looked at this quickly and did not have a real grasp of it. This was all done in a period of about 45 or 50 minutes. We did not really understand it. The way I have described it is the way it is. This is what happened later. At 1:30 on Wednesday morning, more than 8 hours after Chairman Sensenbrenner adjourned the conference, Senator Hatch's office distributed a new, revised version of the Hatch substitute to the Feeney amendment. At that hour, my staff was trying to figure out what exactly was in the old Hatch substitute. It appears, after having debated the Feeney amendment, the Hatch so-called compromise amendment, my secondary amendment after having voted on the items in the final conference report, the Republican conferees decided to change a substantial portion of that conference report and then file it as a technical amendment without reconvening the conference, to have the Members vote on the new language. This procedure was, to say the least, unorthodox. At 1:30 in the morning, the revisioners describe it as a ``technical change . . . made at the request of a democratic Senator.'' No mention of by whom the request was made. Unless the request was for only minor changing, it was not fulfilled. At 1:34, the revision did not limit the Hatch amendment to serious crimes against children. To the contrary, like the amendment before it and the Feeney amendment before, the 1:34 revision broadly limits judicial departures in no-child and non-sex cases in many ways. It overturns the Koon case by establishing the de novo standard for appellate review for all cases--still in there. It still directs the Sentencing Commission to amend the guidelines and policy statements ``to ensure that the incidence of downward departures are substantially reduced.'' It still chills departures by imposing the burdensome reporting requirements. It is true that at 1:34 the revision improved the bill by limiting restrictions on enumerated departure grounds to child and sex cases only. And it strikes the early text limiting military service departures. But the very idea that the Feeney amendment and the first Hatch amendment limited military service departures in this time of war shows how poorly considered the entire legislation has been. The modest changes made in the 1:34 revision do not ameliorate the devastating impact the Hatch amendment will have on our system of criminal justice. They do not conform the amendment to the representations made by Senator Hatch at our conference meeting. They do not excuse the travesty of a process that has led to this provision being inserted into a conference that was meant to deal with the AMBER alert bill and other provisions involving the protection of children. In reality, the Hatch amendment had nothing to do with the protecting of children and everything to do with handcuffing judges, eliminating fairness in the Federal sentencing system. That is what the Chief Justice of the United States believes. Our belief is that if there are changes that are necessary--and there may very well be--we ought to have those changes made in an area of the criminal justice system. If we have to change them in order to deal with terrorism, let's do it. But to do this now, to represent the changes only applied to the children and not to the other parts of the provision, is not accurate and is a serious misrepresentation of what we are doing. I have been assured that there are provisions in this legislation that go far beyond even the conference itself. It is interesting, we established seven members of the Sentencing Commission, and we say not fewer than three judges will be members of the Sentencing Commission. That has changed, to be not more than three judges. The idea that we have seen the number of judges who have served on the Sentencing Commission, all of whom have been approved with the advice and consent of the Senate and have been approved--the idea in the early days of the Sentencing Commission was to bring more judges in to bring greater confidence and get their involvement in the drafting of the sentencing guidelines. That was the purpose. Now they complain about the guidelines and say no more than three judges; so it will never be more than three judges. There will always be more on the outside than judges in the drafting of the sentencing. That was all put in at conference. If someone can show where that was in the Senate bill or the House bill--it was not there. It has important implications in terms of the makeup and the guidance in terms of the sentencing. But we found that out just in reading through the process. No justification. No explanation. Finally, all Members can understand action here in the Senate at the times of enormous kinds of passion, when we see the circumstances of children who are abducted and what has happened to them--one cannot help but to understand that the feeling of the parents and Members is to just throw the book out and go to it. That would have been something, if the House of Representatives had done that when the facts were there last fall--then it would have been something that could have been done in January--but they did not. They waited all this time. And then, they have not only taken those actions in terms of enhanced penalties against the child abductors, all of which I was glad to support--I would have supported it, and would support it still, not the other provisions that have been included in it--but if he is truly committed to protecting the children and upholding the fairness, I would have hoped we could have at least restricted those provisions to the sentencing that applied on those circumstances, but they did not. That is why we are caught, all of us here, in the situation where we are sufficiently concerned about the dangers that are out there in terms of the abduction of children and conflicted with the kinds of violence we are doing to the Sentencing Commission. It is a lousy way to legislate, Mr. Chairman, and I deplore that we are in this circumstance. But we will just have to see what steps are available to us in the remaining time. Mr. President, I would like to address the question of a judge's authority to depart from the guidelines. While this legislation alters the grounds on which a judge may depart in certain child-related cases, it does not alter the basic legal authority of a district court to department from the guidelines under 18 U.S.C. 3553 in other cases. Judges retain ultimate authority to impose a just sentence within statutory limits, and today we reaffirm that departures are an important and necessary part of that authority. As one of the authors of the Sentencing Reform Act, I can say that Congress did not intend to eliminate judicial discretion. We recognized that the circumstances that may warrant departure from the guideline range cannot, by their very nature, be comprehensively listed or analyzed in advance. In interpreting the Act, both the Supreme Court and the Sentencing Commission have emphasized this point. This is not a partisan position. Judicial authority to exercise discretion when imposing a sentence was and is an integral part of the structure of the Federal sentencing guidelines and indeed of every guideline system in use today. In the eloquent words of Justice Kennedy, when he wrote for a unanimous Supreme Court to uphold the district court's authority to depart downward in Koon: The goal of the Sentencing Guidelines is, of course, to reduce unjustified disparities and so reach toward the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice. In this respect, the Guidelines provide uniformity, predictability, and a degree of detachment lacking in our earlier system. This, too, must be remembered, however. It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. We do not understand it to have been the congressional purpose to withdraw all sentencing discretion from the United States district judge. According to Koon v. United States, 518 U.S. 81, 113 (1996). In Koon, the Supreme Court held that a sentencing judge may depart based on a factor identified by the Sentencing Commission, or even based upon a factor discouraged by the Commission, as long as the discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way. Similarly, a sentencing judge may always depart when a factor, unmentioned in the guidelines, takes the case outside the heartland of cases covered by the guidelines. I do not agree that there is an epidemic of leniency in the Federal criminal justice system. I do not regard the current rate of non- substantial assistance departures as excessive. There is no such thing as an excessive departure rate--the question is whether any particular departure is warranted or unwarranted. That is a question for appellate courts, not Congress. One of the reforms embodied in the Sentencing Reform Act was the appealability of sentences. The government was given the power to appeal downward departures under the act. Were downward departures ``excessive'' presumably the government would have brought more appeals than it has. The Sentencing Reform Act recognized that departures are a healthy and necessary component of a just guideline system. In 2001, when we exclude those districts with departure policies designed to address the high volume of immigration caseloads, the non-substantial assistance departure rate is merely 10.2 percent. This reflects the proper exercise of judicial discretion, by Article III judges, who have been appointed by presidents of the United States and confirmed by the Senate, in conformance with the mandate that Congress gave them in 18 U.S.C. Sec. 3553(b). Indeed, the vast majority of downward departures granted by judges today are those sought by the government, most to reward substantial assistance in the prosecution of crime. And, while departures have increased somewhat of late, government initiated departures lead the rising departure rate. I am gratified that the concerns voiced by the Federal Judicial Conference, the American Bar Association, and others concerning the high rate of downward departures requested by prosecutors have been recognized in the version of the Feeney Amendment approved by the conference committee. The bill now requires that the Sentencing Commission: . . . review the grounds of downward departure that are authorized by the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission; and promulgate, pursuant to section 994 of title 28, United States Code (A) appropriate amendments to the sentencing guidelines, policy statements, and official commentary to ensure that the incidence of downward departures are substantially reduced. I welcome this call for a thorough and impartial review of all downward departures, whether requested by the prosecution or the defense. Only a review embracing all downward departures will provide the Commission the information necessary to fulfill the mandate of this legislation. A district court may depart from a guideline range whenever the unusual circumstances or combination of circumstance of a case take it outside of the ``heartland'' of cases covered by the relevant guideline. Other than in certain child-related cases, this legislation does not limit or lessen the myriad potential grounds for departure currently available to district courts in making sentencing decisions nor is it intended to discourage departure decisions when the unusual circumstances of a case justify a sentence outside the recommended range. It also is not intended to transfer authority over sentencing decisions from judges to prosecutors. In that light, I must express my deep concern for the provision of the legislation that requires the Commission to report to the Judiciary Committees of the Congress and even to the Attorney General confidential court records and even ``the identity of the sentencing judge.'' I do not believe that this provision serves any legitimate interests of the Congress. I do not believe that authorizing disclosure of this information to the executive branch is warranted. I have deep concerns that this provision lacks the respect owed by the Congress to a co-equal branch. I remain convinced that his legislation is flawed and results from a hasty and unreliable process that ill serves us. It is my view that the directive to the Commission ``to promulgate . . amendments . . . to ensure that the incidence of downward departures are substantially reduced'' is inappropriate. It puts the cart before the horse and is based on faulty numbers of the incidence of departures that have been relied upon by some proponents of the legislation. The better course would be for the Commission to study and report on the question. Because the Feeney amendment was presented without discussion or debate and at the last possible moment, Congress was deprived of balanced and full information concerning the issue of whether departure decisions are made in inappropriate instances. Even without the opportunity to respond in detail to the amendment, the Commission did produce statistics and information that refute the reliability and credibility of the information used in promoting the notion that departures decisions are made too frequently or inappropriately. Indeed, a fact that was withheld by proponents of the amendment, close to 90 percent of departure decisions are made at the request of or with the support of the government and that number may be even higher. For these reasons, I hope and expect that this legislation will not unduly restrict departures or impede the appropriate development of guideline departure common law. And we need to review the entire system in light of these changes to make sure that we are letting judges carry out their responsibility to impose just and responsible sentences. I ask unanimous consent that the following letters in opposition to the proposal be included in the Record.

Mr. KENNEDY. I have not lost the floor.

Mr. KENNEDY. Regular order.

Mr. KENNEDY. Mr. President, I listened to the Senator from Texas in terms of her strong support. I know she has been involved in the AMBER legislation, as others have, such as my friend and colleague from Vermont. We all remember the work done by the committee itself last year when we initially sent this over to the House of Representatives. We waited a long time. It didn't come back. We sent it back over in January. It didn't come back. Now we have this part come back, of which we are all in support. I must say there are procedures that probably would have to be streamlined, but the provisions that apply to those who are going to be involved in the abduction and kidnaping of children and the various sex crimes outlined and considered in the legislation, that is not any point of dispute. We are in strong support. The fact is, there are other factors included in this legislation on which there haven't been hearings and which basically undermine the criminal justice system, as pointed out by the Chief Justice of the United States. It is not just the Senator from Massachusetts, it is the Chief Justice of the U.S. and he has not been known as a coddler of criminals or lenient on defendants. That is not the reputation of the Chief Justice of the United States, Mr. Rehnquist. Yet he has serious reservations about the provisions of this legislation which we have addressed earlier today and which were addressed in the conference. So I want to make some additional remarks at this time to once again let my colleagues know what is really involved in the legislation. As I mentioned earlier, when we came out of conference, it was said by the chairman of the committee that rather than have the Sentencing Commission do a review and report back in 180 days about the sentencing requirements under this legislation, then we could either enhance or adjust, or rather than even having hearings by the Criminal Justice Subcommittee of the Judiciary Committee, then we could move ahead and consider those on the floor of the Senate. We accepted, after the 6 or 7 minutes of debate and discussion on the floor of the House of Representatives, and without any hearings whatsoever in the Senate or in the Judiciary Committee, provisions that have broad application to all of the sentencing guidelines. We have heard explanations that they really don't, but they do. I will review them very quickly here this afternoon once again. There are three major ways in which this conference report goes beyond the issues of crimes against children. First, the bill changes the standard of appellate review in all cases, not just cases in which children are victims. This overturns a unanimous Supreme Court decision and radically changes the Federal sentencing system. Do we understand that? This legislation overturns a unanimous Supreme Court decision, without a single day, hour, or minute of hearings. That is one reason the Chief Justice, the Judicial Conference of Judges, the American Bar Association, all have expressed their opposition to these provisions. Second, the bill imposes new reporting requirements when judges depart in any case, not just children cases, and this is a blatant attempt to intimidate the judiciary. It says to judges you will be called on the carpet if you depart downward. Your name will be given to the Attorney General and he will report you to Congress. If that isn't a blacklisting for Federal judges, I don't know what is, Mr. President. If these judges are not competent to serve on the Federal judiciary, they should not have been recommended--in these cases, Republican Presidents--or approved by a Republican Senate. But these are the ones who are basically applying these guidelines at the present time. Third, the bill directs the Sentencing Commission to limit downward departures in all cases, not just child cases. This proposal is based on the erroneous view that there is excessive leniency in the Federal sentencing system. The Federal prison population has quadrupled in the last 20 years. The length of sentences is up dramatically in 20 years. Those are three major departures from the assurances that were given by the chairman of the Judiciary Committee in that conference. His amendment, which is included in the conference, would only apply to the issues that were before us dealing with children and children's crimes. These are three examples of where they will affect all of the sentencing, and that has not been refuted this afternoon. I want to take a moment of time to consider a response to many of the claims that have been made here about the problems in the Federal criminal system--claims, quite frankly, that are not supported by any record in the Senate, I might add. This is the analysis of eight highly respected former U.S. attorneys, most of whom are Republicans. They wrote to the Judiciary Committee: We write, as former United States Attorneys in the Southern and Eastern Districts of New York, to express our concern about Section 109 of S. 151/H.R. 1104, the Child Abduction Prevention Act. This proposed legislation--which contains some of the most far-reaching revisions of the federal sentencing process in many years--was passed by the House of Representatives on March 27, 2003. Our concern regarding this legislation is based not only on the questionable justification for many of its provisions, but also on the fact that it has already been adopted by one house of Congress without any meaningful input from the judiciary, the Sentencing Commission, members of the bar or other interested experts and members of the criminal justice community. It continues: . . . The proposed legislation not only disregards the Sentencing Commission's unique role in the federal sentencing process, but also ignores Congress' own admonition that the views of interested parties in the federal criminal justice system be carefully considered before changes to the Guidelines are enacted. The proposed legislation raises serious questions on its merits as well. To start, the justification for such sweeping changes is unclear. Although the number of downward departures not based on cooperation has increased in the last several years, 70 percent of that increase is attributable to departures in a small number of ``border'' districts that handle an extraordinary number of immigration cases which place unique demands on the criminal justice system. The localized nature of this increase does not justify a nationwide restriction on the availability of downward departures in all cases. The sparse legislative history of this proposal similarly reflects that it is an unnecessarily broad response to a particularized concern. The amendment's author has stated that the legislation is prompted by the fact that a ``disturbing trend has occurred, especially in child pornography cases'' and that departures have become a ``common occurrence.'' If downward departures have become commonplace in one particular type of case, then careful scrutiny of the reasons for this phenomenon, and of the appropriateness of the Guideline level for that type of case, may well be warranted. It does not, however, justify a wholesale restriction of downward departures for all cases within the criminal justice system. The legislation also contemplates unwarranted limitations on the exercise of sentencing discretion by the federal judiciary. A United States District Judge has the unique and difficult responsibility of imposing criminal punishment on a defendant based on an individualized assessment of the facts and circumstances of a particular case. Indeed, Congress has explicitly recognized that the Sentencing Guidelines are intended not only to avoid unwarranted disparity in sentencing but also to maintain ``sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.'' 28 U.S.C. Sec. 991(b)(1)(B). . . . In fiscal year 2001, putting aside the ``border'' districts and departures based on cooperation (which require the government's consent), district judges departed downward only 10.2 percent of the time. Moreover, 85 percent of all defendants who received non-cooperation downward departures that year nevertheless were sentenced to prison. What these statistics reveal is a relatively limited exercise of sentencing discretion of the sort contemplated by Congress when it authorized the promulgation of the Guidelines. The legislation also would overrule the Supreme Court's decision in Koon v. United States, 518 U.S. 81 (1996). This, too, is of serious concern. In Koon, all nine Justices of the Supreme Court recognized that an appellate court should review a decision to depart from the Guidelines with ``due deference'' to the district court's decision, and that such a decision should be overruled only if the district court abuses its discretion. That is what the Supreme Court said, but that is not what is in the Hatch amendment. Continuing to quote the letter: The decision correctly recognized that district judges are uniquely qualified to decide whether a departure from the Guidelines is justified by the particular circumstances of a given case or the background of a particular defendant. The legislation's substitution of a de novo standard of review would allow appellate courts to second-guess sentencing decisions without any meaningful guidance as to when those decisions should or should not be upheld. Moreover, given the fact that the government currently has the ability to appeal unauthorized or excessive downward departures and is successful in such appeals about 80 percent of the time-- Understand that, 80 percent of the time when the Government appeals these cases, they are successful. A change in the appellate standard of review appears unnecessary to enable the appellate courts to overturn unwarranted departures. These and other concerns have prompted objections to the proposed legislation from representatives of a wide variety of interested parties to this issue. This includes the Secretary of the Judicial Conference of the United States, all five current voting members of the United States Sentencing Commission, all three Chairpersons of the Commission since its creation, the President of the American Bar Association, and numerous other bar organizations. As former members of the Department of Justice, we respectfully urge you to allow careful consideration of their views, and those of other interested parties, in a public forum before deciding upon the wisdom of any of the sentencing reforms contained in this proposed legislation. Imagine that, they are requesting us to give some consideration and have a hearing on it. According to the chairman of the Judiciary Committee, there is no chance for that. We are just going to be faced with this situation. The entire premise of the Feeney amendment is that departure from the guidelines is a problem that needs to be stamped out. That reflects the fundamental misunderstanding of the guideline system. We never intended the Sentencing Reform Act of 1984 to eliminate judicial discretion. We struck a balance between sentencing uniformity and individualized sentencing. We recognized that guidelines cannot possibly describe every single case. We need uniform rules, but then we need flexibility in individual cases. There is no epidemic of leniency in the Federal criminal justice system. The Federal prison population has quadrupled in the last 20 years. It is now larger than any State system. The departure rate is not excessive. In the committee report accompanying the 1984 act, we anticipated a departure rate of around 20 percent. That is what the estimates were at the time we accepted the Federal guidelines. In fact, the rate at which judges today depart over the objection of the Government is slightly more than 10 percent. So we are well within the acceptable rates. If there is any problem at all, it is with Government departures. The American Bar Association reports that 79 percent of the downward departures in the United States were requested by the Government. Unlike judicial departures, which are subject to appellate review, departures sought by prosecutors are essentially unreviewable. Maybe we need to look at the procedures adopted by the Department of Justice in this area. Why do judges depart? According to the Sentencing Commission, the second most frequent reason for departure is ``pursuant to a plea agreement.'' That accounts for 17.6 percent of downward departures other than substantial assistance. Only a small fraction of departures are based on the offender traits the Senator from Utah complains about--family ties, 3.8 percent; rehabilitation, 1.7 percent; mental conditions, 1.1 percent. It is only a small number of defendants that benefit from judicial leniency. In all the talk about leniency, we forget who these judges are. Many were appointed by Republican Presidents. All were confirmed by the Senate. Many are former prosecutors or other government officials. These are not people predisposed to sympathy for criminals. They are toughminded, responsible pillars of their communities trying their best to impose just sentences within the constraints of the law. Almost 80 percent of the time, the prosecutor agrees that leniency is warranted. Sometimes the Government does not agree, and that is what an appellate review is for. Moreover, the Government wins 78.1 percent of all sentencing appeals. So that mechanism is functioning very well to ensure tough sentences. In this proposal, judges will now have less discretion, and so the prosecutor--listen to this, Mr. President--and so the prosecutor will dictate the sentence in more and more cases. This is a dangerous development. Judicial discretion in sentencing is an accountability measure. It is an important way to check the excesses of the prosecutor. Our system of government is founded on that type of checks and balances. But by weakening the judiciary and depriving judges of the tools they need to do justice in individual cases, the proposal undermines accountability and diminishes justice. This is not the end of the fight. It took us 10 years, 75 hearings, and extensive consultation with top judges, prosecutors, defense attorneys, and other experts to achieve the right balance between ensuring fairness and consistency in the criminal justice system and preserving judges' judicial sentencing discretion. It is not right for us to destroy that balance through an ill- considered measure that has not received any hearings or any debate in the Senate. It is not right to transform the entire Federal guideline system into a system of mandatory minimum sentences. Just yesterday, Justice Kennedy vigorously criticized the existing mandatory minimums as unfair and inconsistent with fundamental principles of justice. Of course, Chief Justice Rehnquist, as I mentioned, not known to be particularly sympathetic to criminal defendants, has described this provision as doing serious harm to the basic structure of the sentencing guidelines system and impairing the ability of courts to impose just and responsible sentences. That is what the Chief Justice has stated about these provisions in this legislation that we are about to consider, as well as Justice Kennedy, also nominated by a Republican President and not known to be a coddler of criminals or lenient in terms of sentencing. It is a slap in the face of Federal judges, who have to apply the guidelines system on a daily basis, to include these provisions in the conference report. It is wrong for my Republican colleagues to misrepresent the nature of this provision, to suggest that it is limited to serious crimes against children, when they know more serious provisions will apply to all of the offenses. It is wrong to hold protections for children hostage in order to ram through this sweeping, ill-advised provision without a single hour or day of hearings or debate. I will continue to pursue this issue and do everything I can to protect the reforms we have achieved on a strong bipartisan basis in the Sentencing Reform Act of 1984. I ask unanimous consent that the conference report be defeated, that the Senate concur in the House amendment with an amendment which is the text of the conference report with a new title IV.

Mr. KENNEDY. Under the rules, the Senator can either object or accede to that request. I retain my right to the floor, Mr. President.

Mr. KENNEDY

Mr. KENNEDY. I intend to speak about this for some time, and then at the appropriate time I will make a point of order in terms of the bill.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I am going to send to the desk the underlying legislation which also strikes the provisions in title IV. It will limit them to the serious crimes against children. This is what was basically agreed to in the conference report, the AMBER legislation, and the provisions in that Feeney amendment that apply to children as was, I think, represented by the chairman of the Judiciary Committee. I send the legislation of the committee to the desk and ask for its appropriate referral.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, last Sunday's magazine section of the New York Times contained an excellent and insightful article by Jeff Madrick on the Nation's troubled economy as a result of huge tax cuts, the stalled economy, and the cost of the war and the reconstruction of Iraq. His article emphasizes the severe consequences we will face if we fail to bring the exploding deficit under control. Mr. Madrick's article, ``The Iraqi Time Bomb,'' will be of major interest to all of us in Congress, and I ask unanimous consent that it may be printed in the Record.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is a privilege to join Senator Graham and Senator Chafee in introducing the Immigrant Children's Health Insurance Act, which will benefit tens of thousands of immigrant children and families across the Nation. The 1996 welfare reform legislation disqualified legal, taxpaying immigrants from major Federal assistance programs, including health coverage through Medicaid and the State Children's Health Insurance Program. As a result, many of these individuals and families go without needed care or rely on hospital emergency rooms for their care. This bill will enable States to provide health insurance coverage for legal immigrant children and pregnant women under Medicaid and SCHIP. This is an important step in alleviating the health disparities that exist for immigrant children. Research shows that children of immigrant are twice as likely to be uninsured as children of U.S. citizens. They are more than three times as likely not to have regular care, and more than twice as likely to be in fair or poor health. Enacting this legislation will help to eliminate these inequalities. This bill will also help to reduce the number of uninsured in our country. Today, there are 42 million uninsured, and 10 million are children. Most of the uninsured are earning incomes below or near the poverty line, and can't afford the high cost of private insurance. The 1996 legislation barring legal immigrants from federally funded health care has contributed to the increase in the number of uninsured. The Congressional Budget Office estimates that this bill will cover an additional 155,000 children and 06,000 pregnant women this year alone. Throughout our history, immigrants have made important contributions to our country. They work hard, pay taxes, and play by the rules. In fact, immigrants and their children make significant contributions to our long-term economic well-being by adding an estimated $10 billion annually to our economy. However, they are disproportionately employed in low-wage, low-benefit jobs, and are more likely to be uninsured. This bill will enable legal immigrant families to receive the services they are paying for as taxpayers. It is a matter of basic fairness. The bill makes good economic sense, as well. Twenty-six states and the District of Columbia already use their own State funds to provide medical coverage for legal immigrants, but continuing these programs is becoming increasingly difficult as state budget constraints worsen. In fact, Massachusetts, which currently provides health coverage at State expense, is proposing to eliminate Medicaid for adult immigrants. Allowing States to use Federal funds to support their health care initiatives will provide needed fiscal relief, and ensure that these children receive a health start. Both good nutrition and adequate health care are fundamental for health child development. Last year, with President Bush's support, Congress restored food stamp benefits to legal immigrants in the farm bill. It is long past time for Congress to guarantee that legal immigrants also have access to health care. America has a proud tradition of welcoming immigrants, and we must live up to our history and heritage as a nation of immigrants. Restoring these health benefits will ensure that children in immigrant families have the same opportunities for good health as every other child in the Nation. The Immigrant Children's Health Insurance Act is a needed step to achieve this goal, and I urge my colleagues to support this important legislation.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, it is a privilege to join Senator Graham and Senator Chafee in introducing the Immigrant Children's Health Insurance Act, which will benefit tens of thousands of immigrant children and families across the Nation. The 1996 welfare reform legislation disqualified legal, taxpaying immigrants from major Federal assistance programs, including health coverage through Medicaid and the State Children's Health Insurance Program. As a result, many of these individuals and families go without needed care or rely on hospital emergency rooms for their care. This bill will enable States to provide health insurance coverage for legal immigrant children and pregnant women under Medicaid and SCHIP. This is an important step in alleviating the health disparities that exist for immigrant children. Research shows that children of immigrant are twice as likely to be uninsured as children of U.S. citizens. They are more than three times as likely not to have regular care, and more than twice as likely to be in fair or poor health. Enacting this legislation will help to eliminate these inequalities. This bill will also help to reduce the number of uninsured in our country. Today, there are 42 million uninsured, and 10 million are children. Most of the uninsured are earning incomes below or near the poverty line, and can't afford the high cost of private insurance. The 1996 legislation barring legal immigrants from federally funded health care has contributed to the increase in the number of uninsured. The Congressional Budget Office estimates that this bill will cover an additional 155,000 children and 06,000 pregnant women this year alone. Throughout our history, immigrants have made important contributions to our country. They work hard, pay taxes, and play by the rules. In fact, immigrants and their children make significant contributions to our long-term economic well-being by adding an estimated $10 billion annually to our economy. However, they are disproportionately employed in low-wage, low-benefit jobs, and are more likely to be uninsured. This bill will enable legal immigrant families to receive the services they are paying for as taxpayers. It is a matter of basic fairness. The bill makes good economic sense, as well. Twenty-six states and the District of Columbia already use their own State funds to provide medical coverage for legal immigrants, but continuing these programs is becoming increasingly difficult as state budget constraints worsen. In fact, Massachusetts, which currently provides health coverage at State expense, is proposing to eliminate Medicaid for adult immigrants. Allowing States to use Federal funds to support their health care initiatives will provide needed fiscal relief, and ensure that these children receive a health start. Both good nutrition and adequate health care are fundamental for health child development. Last year, with President Bush's support, Congress restored food stamp benefits to legal immigrants in the farm bill. It is long past time for Congress to guarantee that legal immigrants also have access to health care. America has a proud tradition of welcoming immigrants, and we must live up to our history and heritage as a nation of immigrants. Restoring these health benefits will ensure that children in immigrant families have the same opportunities for good health as every other child in the Nation. The Immigrant Children's Health Insurance Act is a needed step to achieve this goal, and I urge my colleagues to support this important legislation.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, the CARE Act is a significant bipartisan effort to create improved opportunities for charitable giving. That is a goal I wholeheartedly support. Charitable giving is a continuing reaffirmation of the deeply held community spirit of the American people. It recognizes our responsibility to help the less fortunate, and the work of charitable organizations is essential in protecting the well-being of millions of our fellow citizens. The key provision of the bill will at long last allow those who do not itemize their deductions to receive a tax deduction for their charitable contributions. This deduction will benefit millions of low and middle-income families who are already making significant charitable contributions each year, and it will encourage even more charitable contributions in future years. The agreement to remove the controversial title 8 makes sense, so the bill can move quickly through Congress. All of us share the goal of enhancing community-based services for low-income people through public, private, and faith-based organizations. Our concern with title 8 was that it failed to see that faith-based organizations do not use these public funds to discriminate on the basis of religion. Many of us continue to be concerned about a separate development on the discrimination issue. The President has issued an Executive order repealing more than 60 years of Federal protections against religious discrimination in publicly funded programs. Under the President's order, organizations can receive public funds and then refuse to hire persons because of their religion, their marital status, or their sexual orientation. As the Senate considers future legislation to support and fund community-based organizations that provide social services, including faith-based organizations, I look forward to working with my colleagues to see that civil rights protections are safeguarded. I am pleased that the CARE Act restores funding for the social services block grant. Congress made a promise in 1996 to do so, and it is essential to keep that promise, so that vulnerable Americans can continue to rely on the funding in the years ahead. For too long, Congress has ignored its responsibility to those most in need. Since 1995, annual funding for SSBG has been cut by more than $1 billion, from a high of $2.8 billion to the current level of $1.7 billion. This bill will restore the amount to $2.8 billion in the next fiscal year. The social services block grant pays for critical services for 11 million children, families, seniors, and persons with disabilities each year. In 2000, $683 million in these funds was used to support child protective services, foster care, and adoption services alone. Twelve percent of the funds was used for disability services, and $181 million was used to provide services to the elderly. This program is the only Federal source of funding for Adult Protective Services, which provides assistance and protection for elderly and disabled adults who are victims of abuse. Restoring these funds is especially important now, when most States are cutting and even eliminating the very services and programs that the social services block grant was enacted to support. The economic downturn, escalating State deficits, and reduced funding for social services, has left State program officials with the impossible task of deciding who to help and who to turn away. We must do all we can in Congress to ensure that States have the resources they need to support their most vulnerable citizens. I commend my colleagues on the Finance Committee on the provision to restore SSBG in the CARE Act for the coming year. Our goal now is to see that we keep doing that in future years as well. Today's action should not be just a temporary, 1-year fix. We owe a lasting commitment to the children, families, and seniors who need our help the most, and I look forward to working with my colleagues to achieve this goal.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, victims of crime deserve to have their voices heard and be notified about important events in the criminal justice system relating to their cases, and they deserve enforceable rights under the law. Today, my colleagues and I are introducing the Crime Victims Assistance Act. It is especially appropriate that we do so this week, which is National Crime Victims' Rights Week. Our bill is intended to define the rights of victims more clearly, and establish effective means to implement and enforce these rights. Equally important, it does so without taking the unnecessary and time-consuming step of amending the Constitution. Our bill strengthens protections for victims of both violent and nonviolent Federal crimes, and gives them a greater voice in the criminal justice system. It gives victims a number of important rights, such as the right to be notified and consulted on detention and plea agreements; the right to be present and heard at trial and at sentencing; and the right to be notified of a scheduled hearing on a sentence adjustment, discharged from a psychiatric facility, or grant of clemency. The rights established by this bill will fill existing gaps in Federal criminal law and will be a major step toward guaranteeing that victims of crime receive fair treatment and are afforded the respect they deserve. Our bill achieves these goals in a way that does not interfere with the rights of the States to protect victims in ways appropriate to each State. Rather than mandating that States modify their criminal justice procedures in particular ways, our bill authorizes the use of Federal funds to establish effective programs to promote victim rights compliance. It increases resources for the development of state-of-the- art systems for notifying victims of important dates and developments in their cases. It provides funds for the development of community- based programs relating to those rights. It also provides funds for case management programs to streamline access to victims services and reduce ``revictimization'' by the criminal justice system, and enable service providers to help victims with special communication needs, such as limited English proficiency, hearing disabilities, and developmental disability. Finally, our bill replaces the cap on spending form the Crime Victims Fund, which has prevented millions of dollars of fund deposits from reaching victims and supporting essential services. The bill adopts a new approach supported by victim groups to strengthen the stability of the fund and protect its assets, while allowing more funds to be distributed for victim programs. We do not have to amend the Constitution to achieve these important goals. The Constitution is the foundation of our democracy. It reflects the enduring principles of our country. The Framers deliberately made the Constitution difficult to amend because it was never intended to be used for normal legislative purposes. If it is not necessary to amend the Constitution to achieve particular goals, it is necessary not to amend it. Our legislation is well-designed to establish effective and enforceable rights for victims of crime, and I urge my colleagues to support it.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, victims of crime deserve to have their voices heard and be notified about important events in the criminal justice system relating to their cases, and they deserve enforceable rights under the law. Today, my colleagues and I are introducing the Crime Victims Assistance Act. It is especially appropriate that we do so this week, which is National Crime Victims' Rights Week. Our bill is intended to define the rights of victims more clearly, and establish effective means to implement and enforce these rights. Equally important, it does so without taking the unnecessary and time-consuming step of amending the Constitution. Our bill strengthens protections for victims of both violent and nonviolent Federal crimes, and gives them a greater voice in the criminal justice system. It gives victims a number of important rights, such as the right to be notified and consulted on detention and plea agreements; the right to be present and heard at trial and at sentencing; and the right to be notified of a scheduled hearing on a sentence adjustment, discharged from a psychiatric facility, or grant of clemency. The rights established by this bill will fill existing gaps in Federal criminal law and will be a major step toward guaranteeing that victims of crime receive fair treatment and are afforded the respect they deserve. Our bill achieves these goals in a way that does not interfere with the rights of the States to protect victims in ways appropriate to each State. Rather than mandating that States modify their criminal justice procedures in particular ways, our bill authorizes the use of Federal funds to establish effective programs to promote victim rights compliance. It increases resources for the development of state-of-the- art systems for notifying victims of important dates and developments in their cases. It provides funds for the development of community- based programs relating to those rights. It also provides funds for case management programs to streamline access to victims services and reduce ``revictimization'' by the criminal justice system, and enable service providers to help victims with special communication needs, such as limited English proficiency, hearing disabilities, and developmental disability. Finally, our bill replaces the cap on spending form the Crime Victims Fund, which has prevented millions of dollars of fund deposits from reaching victims and supporting essential services. The bill adopts a new approach supported by victim groups to strengthen the stability of the fund and protect its assets, while allowing more funds to be distributed for victim programs. We do not have to amend the Constitution to achieve these important goals. The Constitution is the foundation of our democracy. It reflects the enduring principles of our country. The Framers deliberately made the Constitution difficult to amend because it was never intended to be used for normal legislative purposes. If it is not necessary to amend the Constitution to achieve particular goals, it is necessary not to amend it. Our legislation is well-designed to establish effective and enforceable rights for victims of crime, and I urge my colleagues to support it.

Mr. KENNEDY

Mr. KENNEDY. Mr. President, I have been briefed by the Department of Defense. The cost for the military is about $28 or $29. They have done a very effective program. The National Association of State and County Officials estimates it is $150 to $284. Senator Bayh is down to $85. There is zero in the bill at the present time. The first responders we are talking about are at the cutting edge of defending the country against a bioterror attack. I don't believe we ought to make the case in Washington, DC, when we have seen Americans die as a result of anthrax. If you are going to have an effective program, you are going to have to support local communities to be able to implement that program. That is what this amendment provides. It is a very modest amendment. The President of the United States says he wants, initially, 400,000 immunized, and then he wants 10 million. There is zero money to accomplish that in the supplemental. We believe there is a sense of urgency and we ought to do it now. That is what the Bayh amendment does. That is why a very modest downpayment is called for in this amendment. I hope this will be accepted.

Mr. KENNEDY. How much time remains?

Mr. KENNEDY. How much time remains?

Mr. KENNEDY. Fighting against the dangers of bioterrorism is a key aspect on the war on terrorism. To do that, you need to have two components: One, you need a compensation program; secondly, you need to be able to get that program of vaccinations out there. It is not getting out there now. It is putting too great a strain on local public health officials. We should give them assistance to make sure we have the very best. We want the best for our service men and women fighting in Iraq, and we want the best for our first responders whose lives are at risk. This amendment will ensure they will receive the best in terms of support in local communities. I withhold the remainder of my time.