John Kerry

Mr. KERRY

Mr. KERRY. Mr. President, I yield myself 7 minutes.

Mr. KERRY. Mr. President, I have heard a lot of my colleagues rely on the ABA's determination that Judge Alito is ``well qualified'' as a reason--sometimes as reason enough--to vote for his confirmation. But there is a reason why an ABA ranking alone is not all that is required to be confirmed to the bench, let alone the highest Court in the land. With a decision as fundamental--as irrevocable--and as important to the American people as the confirmation of a Supreme Court Justice, it is important we tell the Americans the full story about the ABA and those rankings. When making its determination, the ABA considers analytical skills. They consider knowledge of the law. They consider integrity, professional competence, and judicial temperament. But United States Senators must consider more than these criteria. What the ABA does not look at is the balance of the Supreme Court. What they do not look at is ideology. What they do not look at is judicial activism. What they do not look at is the consequences of a judge's ideologically driven decisions for those who have been wronged and who just want to get their day in court. No matter how smart he may be, no matter how cleverly his opinions may be written, no matter how skillfully he manipulates the law, their standards don't consider the impact of his decisions on average Americans. In short, they don't measure what will happen to average Americans if Judge Alito becomes Justice Alito. That is our job. None of these measurements consider whether Judge Alito routinely cuts off access to justice for the most disadvantaged Americans--those that need it the most. They don't ask whether he consistently excuses excessive government force when it intrudes into the privacy of individuals. They don't consider that the only statement he has ever made about a woman's right to privacy is that she doesn't have one. These are things that we must consider here in the United States Senate. These are things that are on the line in this vote this afternoon. And these are the things that I believe most Americans want us to consider. We have to consider whether a judge we confirm to a lifetime appointment to the Supreme Court will undermine the laws that we have already passed that benefit millions of Americans, like the Family Medical Leave Act. We have to consider whether Judge Alito will place barriers in the way of addressing discrimination, whether he will serve as an effective check on the abuse of executive power, whether he will roll back women's privacy rights or whether he will enforce the rights and liberties that generations of Americans have fought and bled and even died to protect. None of the rights we are talking about came easily in this country. There were always those in positions of power who fought back and resisted. What we need in a Justice is somebody who is sensitive to that history. Senator after Senator has described specific cases and the way in which Judge Alito has had a negative impact in these areas--often standing alone, in dissent against mainstream beliefs. This long record is a record that gave the extreme right wing cause for public celebration with his nomination. That just about tells you what you need to know. The vote today is whether we will take a stand against ideological courtpacking. Nothing can erase Judge Alito's record. We all know what we are getting. No one will be able to say, in 5 to 10 years, that they are surprised by the decisions Judge Alito makes from the bench. People who believe in privacy rights, who fight for the rights of the most disadvantaged, who believe in balancing the power between the President and Congress need to take a stand now. I understand that, for many, voting for cloture on a judicial nomination is a very difficult decision, particularly on this Supreme Court nominee. I also understand that, for some, a nomination must be an ``extraordinary circumstance'' in order to justify that vote. Well, I believe this nomination is an extraordinary circumstance. What could possibly be more important than this--an entire shift in the direction of the Court? This is a lifetime appointment to a Court where nine individuals determine what our Constitution protects and what our laws mean. Once Judge Alito is confirmed, we can never take back this vote. Not after he prevents many Americans from having their discrimination cases heard by a jury. Not after he allows more government intrusions into our private lives. Not after he grants the President the power to ignore Federal law rather than protecting our system of checks and balances. These questions do not arise out of speculation. They do not arise out of mere statement. They arise out of the record the judge has carved for himself. These issues and the threat that Judge Alito's nomination poses to the balance that the Supreme Court has upheld in all the years that Justice O'Connor has served there--all of this constitutes an ``extraordinary circumstance.'' I understand that many Senators oppose this nomination, and I believe the vote tomorrow will indicate that if we are not successful today. They say that they understand the threat Judge Alito poses, but they argue that somehow a vote to extend debate, when there have been a mere 30 hours or so of debate, is different. I do not believe it is. I believe it is the only way that those of us in the minority have a real voice in the selection of this Justice or any Justice. It is the only way we can fully complete our constitutional duty of advice and consent. It is the only way we can be a voice for those Americans who do not have a voice today. It is the only way we can stop a confirmation that we feel will certainly cause irreversible harm to the principles and values that make a real difference in the lives of average Americans. It is the only way we can keep faith with our belief, and the Constitution's promise, of equal justice. That is a position that we can and we should defend anywhere, at any time. I thank those who have stood to be counted in this effort and who will continue to take a stand with their vote. I particularly thank my senior colleague from Massachusetts, Senator Kennedy. I think the remainder of the time Senator Kennedy will use.

Mr. KERRY

Mr. KERRY. Mr. President, I rise today to celebrate a special occasion in the life of a true American; Mr. Raymond Twomey of Boston, MA. As Ray gathers with his friends and family, I wish to join with all of them in celebrating his career of public service, his distinguished military service, and his 90th birthday. Ray was born on January 30, 1916, and grew up in east Boston, where he resides to this day with his son Jerry and daughter-in-law Sandra. He answered his country's call to service in World War II and worked as a medic in the ``Spearhead Division,'' known outside the service by its more formal title of the U.S. Army 703rd Tank Destroyer Battalion, 3rd Armored Division. He ascended to the rank of corporal, fought courageously in the critical Battle of the Bulge, and was subsequently awarded a Purple Heart. Upon his return to the States, Ray began his work for the U.S. Postal Service and served the Boston neighborhoods of Beacon Hill and the North End. He married the lovely Marie Louise Spinazola, also of east Boston, in 1948; and their four children, Jerry, Claudia, Mary and Bernadette were born and raised in east Boston as well. He is the proud grandfather of six grandchildren and one great grandchild. On the occasion of Ray's 90th birthday, his entire family will gather to honor him and celebrate his life and accomplishments. I am proud to join them in wishing happy birthday to Ray and wish him the very best.

Mr. KERRY

Mr. KERRY. I thank the Chair. Mr. President, let me begin by congratulating the Senator from Minnesota for an absolutely superb presentation of the arguments that are at stake in this choice which the Senate faces. I think he has done a terrific job of summarizing a great many of those issues in the broad scope of those issues, and I particularly appreciate the last comments he made about the absence of unanimity and the divisions in the Senate over their vote. None of us should forget the debate Harriet Miers met with a storm of criticism--not from this side but from the other, from the rightwing. In fact, she became more unacceptable to the Republicans because she did not make clear which ideological direction she would take the Court, rather than for the very broad-based appeal she would pose to the country. The reason we are here with this decision is not because of a choice we have made. It is because of a choice the President has made. It is because that is the direction the President wants to move in. We have had countless opportunities in the Senate where we have had votes on nominees which have garnered 100 votes, 98 votes, 95, 90. Anyone who is watching understands that the Senate is divided on this nominee. At this pivotal moment in our country's history with the issues we face, that is not the way to tip the balance of the Court or to move the Court in an ideological direction. The critical question here is, Why are we so compelled to accept in such a rush a nominee who has so clearly been chosen for political and ideological reasons? That is the real question. Our job is to advise and consent. No one understands better than I do the consequences of an election and what happens when a President wins. I have heard colleagues say: Well, the President won. He has a right to make his choice. Yes, he does. And the choice he has made is an ideological choice to take the Court in a certain direction. That is his choice. Our choice depends on our rights as Senators and depends on what the Constitution tells us we should do in terms of giving advice and consent. My question to the Senate is, What is our advice with respect to the rights of a young person to be strip-searched or with respect to people in their homes or with respect to a whole series of other critical things that define this country? What is the advice of the Senate in this year? These are not small issues to be expedited away by some kind of a symbolic timetable, a State of the Union Message. Our advice and consent ought to be weighed just as carefully and as importantly as the impact this choice is going to have on the Court for years to come. This is not just the vote of Monday afternoon. This is a vote of history. Deciding on whether to confirm Judge Sam Alito to be an Associate Justice is one of the most important votes I will cast in the time I have been in the Senate because of what it means to the Court and to these critical choices. Confirming Judge Alito to a lifetime appointment on the Supreme Court would have irreversible consequences that are already defined if Senators will take the time to measure them. In my judgment, it will take the country backward on critical issues. I will not talk about them all now; we do not have time. I know there is a pre-agreement. I understand that, and I respect that. I am proud to join my friend, the senior Senator from Massachusetts, in taking a stand against this nomination. I know it is an uphill battle. I have heard many of my colleagues. I hear the arguments: Reserve your gunpowder for the future. What is the future if it changes so dramatically at this moment in time? What happens to those people who count on us to stand up and protect them now, not later, not at some future time? This is the choice for the Court now. I reject those notions that there ought to somehow be some political calculus about the future. This impact is going to be now. This choice is now. This ideological direction is defined now. This fight is not a fight for the short term. This is a fight over two very fundamentally different views about what defines us, what is appropriate in the relationship between government and citizen, and the right of our citizens to be free from unlawful government action. These are not just words. This is not something we just casually throw out there. ``Unlawful government action'' is part of what motivated people to come here in the first place and to fight for what we love and cherish. I used to be a prosecutor, and I worked closely with police. I loved my work with the police. I respect the police. They do unbelievably dangerous work on behalf of our country every single day. They may walk into a home, into a dark corner, not knowing who is there or what evil awaits. I understand that. I also understand when you assume that responsibility, you assume a responsibility to uphold the law, to uphold the Constitution, and to help protect people. That is part of the risk, part of what you take on. What about the right to equal justice under the law? I heard one Senator the other day come to the Senate and say it isn't the job of a Supreme Court Justice to protect the downtrodden or the disenfranchised, it is their job to interpret the law. On countless occasions we all know the weight that comes to bear in that decision- making process between powerful interests and those who do not have a voice. That is also part of what defines us. What makes America different from every country on the face of the Earth is that the average citizen can go into a courthouse in America and hold the most powerful corporation to account for their safety, for their livelihood, for their welfare. These are rights that Americans care about deeply. The importance of this choice is highlighted by focusing on the seat that this nominee has been chosen to replace. Look at Justice Sandra Day O'Connor, a deciding vote, a vote that will likely be lost if Judge Alito takes her place. Look at the case of Grutter v. Bollinger, which held that State colleges and universities have the right to use affirmative action in their admission policies to increase educational opportunities for minorities and promote racial diversity on campuses. What about Tennessee v. Lane, which upheld the constitutionality of title II of the Americans with Disabilities Act that required that courtrooms be physically accessible to the disabled. Or Rush Prudential HMO v. Moran, which upheld State laws giving people the right to a second doctor's opinion if their HMO tries to deny them treatment. That is a classic example of power against the powerless. It happens every day in America. An HMO decides, no; an individual citizen wants the coverage they think they got. Will they have the right to have the access on that? Hunt v. Cromartie, affirming the right of State legislatures to take race into account to secure minority voting rights and redistricting-- we all know what has happened in this country, the challenge to the rights of minorities to vote. We still see it. As recently as in the last election we saw minorities denied opportunities to register, opportunities to have equal numbers of voting machines in their district. These are the things that define us. Brown v. Legal Foundation of Washington, which maintained the key source of funding for legal assistance for the poor; Alaska Department of Environmental Conservation v. EPA, which allowed the EPA to step in and take action to reduce air pollution under the Clean Air Act when a State conservation agency fails to act--there is not an American that doesn't understand we are going backwards with respect to air quality. What are the rights of the EPA going to be where Justice Sandra Day O'Connor was the swing vote, 5-4, the only one who held the line on the right of the EPA to do that? Stenburg v. Carhart, which overturned a State law that would have banned abortion as early as the 12th week of pregnancy without providing an exception to a woman's health--the list goes on. These are the issues which are at stake. Throughout his legal career--these are not things that are made up. These are defined by the writings, by the decisions, by the memoranda, by the speeches that Judge Alito has made. In each of those, in all of those, there is a startling lack of skepticism that is healthy in judges towards government power that infringes on individual rights and liberties. Professor Goodwin Liu of the University of Berkeley Law School concluded after analyzing those: Judge Alito ``is less concerned about the government overreaching than Federal appeals judges nationwide, less concerned than Republican-appointed appeals judges nationwide, and less concerned than his Republican-appointed colleagues on the Third Circuit.'' Aren't we going to be concerned that he is less concerned than those of the same stripe? Not only is his record outside the mainstream of the judicial spectrum, but ``it is at odds with the Supreme Court's vital role in protecting privacy, freedom, and due process of law.'' That is Professor Liu. In 1984, for example, Judge Alito wrote a Justice Department memorandum concluding that the use of deadly force against a fleeing unarmed suspect did not violate the fourth amendment. The victim was a 15-year-old African American. He was 5 foot 4. He weighed 100 to 110 pounds. This unarmed eighth grader was attempting to jump a fence with a stolen purse containing $10 when he was shot in the back of the head in order to prevent escape. The Sixth Circuit Court of Appeals found the shooting unconstitutional because deadly force can only be used when there is ``probable cause that the suspect poses a threat to the safety of the officers or a danger to the community if left at large.'' That is what we teach law enforcement officials. But Judge Alito disagreed. Judge Alito said: No, he believed the shooting was reasonable because ``the State is justified in using whatever force is necessary to enforce its laws''--even deadly force. That is his conclusion. That is the standard that is going to go to the Supreme Court if ratified. It is OK to shoot a 15-year-old, 110 pounds, a 5-foot-4-inch kid who is trying to get over a fence with a purse, shoot him in the back of the head. Otherwise, Judge Alito believed that any suspect could evade arrest by making the State choose between killing them or letting them escape. That is the conclusion. Think about that. Judge Alito believed that the State could use whatever force was necessary to enforce its laws regardless of whether the suspect was armed or dangerous. Does the Chair believe that? Do the other Senators believe that? I don't think so. Do mainstream Americans believe that? Lucky for us, we did not have to answer that question. Why? Because in 1985, Justice White rejected Judge Alito's position, and the court held that deadly force is not justified ``where the suspect poses no immediate threat to the officer and no threat to others''. The court stated unequivocally, ``a police officer may not seize an unarmed, nondangerous suspect by shooting him dead.'' So Judge Alito is out of touch with mainstream juris prudence with respect to the use of force in America. Becoming a Federal judge did not make Judge Alito any more protective of an American's personal privacy and freedoms when it comes to government intrusion. That ought to concern every conservative in this Nation. Every conservative in America ought to care about the government's power to just walk into your home, to intrude on the rights of individual Americans. In Baker v. Monroe Township, over a dozen local and Federal narcotics agents raided the apartment of Clement Griffin, just as his mother and her three children were arriving for a family dinner. Officers forced the family down to the ground, pointed guns at them, handcuffed and searched them. Two Reagan appointees to the court held that a jury should decide whether excessive force was used, but Judge Alito disagreed. He agreed that the search was ``terrifying'' and ``most unfortunate''. But he did not believe that the family had a right to make their case to a jury in court. He would have denied those American citizens, terrified as they were, their day in court. Judge Alito, I regret to say, often goes out of his way to justify excessive government actions. Many have talked in the Senate about Doe v. Groody, where Judge Alito, dissenting in an opinion by our current head of the Department of Homeland Security, then-Judge Michael Chertoff, concluded that the strip-search of a 10-year-old girl was unreasonable. That was the conclusion of Judge Chertoff. Judge Alito concluded that the strip-search of a 10-year-old girl was reasonable. He reached this astonishing conclusion on a technicality. Rather than relying on the search warrant to determine whether the strip search of a child was authorized, Judge Alito argued that the court ought to look to the police officer's supporting affidavits. As a rule, however--now, I can say this as a former prosecutor because we used to labor over those warrants very carefully, knowing they were going to be scrutinized--affidavits are not part of the search warrants unless the trial judge decides they are. That ``goes to the heart of the constitutional requirement that judges, not the police, authorize the warrants. But Judge Alito said: No, no, no, no, it is OK to go look behind what they were intending, and decided they must have intended to include the search of the entire family, including a 10-year-old child. Is that the standard we want on the Court? Judge Alito's minimalist view of the fourth amendment's right to privacy is not limited to claims of excessive force. In United States v. Lee, he upheld the FBI's installation of a video and audio surveillance device in a hotel room in order to record conversations between the target of a bribery sting and a police informant. The FBI conducted the surveillance without a warrant, arguing, first, that the target had no expectation of privacy in a hotel room, and, second, that the device was turned on only when the informant was in the room. Judge Alito accepted the FBI's argument, and found no constitutional violation. His eagerness to buy the FBI's arguments, particularly in light of the Supreme Court decisions to the contrary, raises serious questions about how he would approach serious constitutional violations to the National Security Agency's program of domestic eavesdropping. Americans across the board are concerned about the violation of the law with respect to what we passed in the Congress overwhelmingly. After all, with the eavesdropping in Lee and the eavesdropping being conducted now, we see some startling similarity. Both are defended on the basis of Executive discretion and self-restraint. The fourth amendment is not defined that way. It is defined by judicial restraint itself, not the Executive restraint, and by judicial review. We also should never forget, as we think about this issue, the words of an eminent Justice, Justice Brandeis, who said: Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. I believe that is what we need to protect ourselves against. That is what the Framers created the judiciary to do. And that is what I fear the record shows Judge Alito has not been willing to do. Now, if his judicial opinions and legal memoranda do not convince you of these things, you can take a look at the speech he gave to the Federalist Society in which, as a sitting judge, he ``preached the gospel'' of the Reagan Justice Department nearly 15 years after he left it; a speech in which he announced his support of the ``unitary executive theory'' on the grounds that it ``best captures the meaning of the Constitution's text and structure.'' As Beth Nolan, former White House counsel to President Clinton, describes it: ``Unitary executive'' is a small phrase with almost limitless import: At the very least, it embodies the concept of Presidential control over all Executive functions, including those that have traditionally been exercised by ``independent'' agencies and other actors not subject to the President's direct control. Under this meaning, Congress may not, by statute, insulate the Federal Reserve or the Federal Election Commission . . . from Presidential control. Judge Alito believes you can. The phrase is also used to embrace expansive interpretations of the President's substantive powers, and strong limits on the Legislative and Judicial branches. This is the apparent meaning of the phrase in many of this Administration's signing statements. Now, most recently, one of those signing statements was used to preserve the President's right to just outright ignore the ban on torture that was passed overwhelmingly by the Congress. We had a long fight on this floor. I believe the vote was somewhere in the 90s, if I recall correctly. Ninety-something said this is the intent of Congress: to ban torture. But the President immediately turned around and did a signing in which he suggested an alternative interpretation. And Judge Alito has indicated his support for that Executive power. During the hearings, Judge Alito attempted to convince the committee that the unitary executive theory is not about the scope of Presidential power. But that is just flat wrong. Not only does the theory read Executive power very broadly, but, by necessity, it reads congressional power very narrowly. In other words, as the President gains exclusive power over a matter, the Constitution withholds Congress's authority to regulate in that field. That is not, by any originalist interpretation, what the Founding Fathers intended. Let me give you a real-life example, as described again by Beth Nolan: [W]hen the Reagan Administration undertook the covert arms- for-hostages operation that eventually grew into the Iran- Contra scandal, it triggered the requirement of the National Security Act that the Administration provide Congress ``timely notification'' of the covert operation. Reading the phrase ``timely notification'' against the background of the unitary executive theory, the Justice Department stated, ``The President's authority to act in the field of international relations is plenary, exclusive, and subject to no legal limitations save those derived from the applicable provisions of the Constitution itself.'' According to Justice, under that interpretation, Congress's role in this matter was limited because its only constitutional powers in the area of foreign affairs were those that directly involved the exercise of legal authority over American citizens. Justice even qualified this statement, saying that by ``American citizens'' it meant ``the private citizenry'' and not the President or other executive officials. According to Ms. Nolan: [I]f such claims are taken seriously, then the President is largely impervious to statutory law in the areas of foreign affairs, national security, and war, and Congress is effectively powerless to act as a constraint against presidential aggrandizement in these areas. Does that sound familiar? It ought to sound familiar. The Bush administration's legal opinion on torture, the administration's response to the McCain antitorture amendment, and the justifications given for the NSA's domestic spying program have all been based, in large part, on this exact same theory of the unitary executive. Given Judge Alito's history in the Reagan Justice Department, given his writings on the Third Circuit, given the year 2000 speech to the Federalist Society, a central question is whether you can trust that he, in fact, is going to protect the rights of the Congress and the legislative branch as well as those personal freedoms of individual Americans from those governmental intrusions? I believe the record says ``no.'' Now, as I mentioned earlier, I know this is flying against some of the sort of political punditry of Washington. I understand that. But this is a fight worth making because it is a fight for a lifetime appointment on the Supreme Court of the United States, with a series of decisions that suggest a view--however brilliant a legal mind--he has a brilliant legal mind. I met with him. He is a nice fellow--we all understand that--well regarded by some people in the judicial system. He was looked at by the ABA. And they make a judgment based on sort of just legal decisions, not necessarily the ideological impact, the larger implication, all the other conditions that we need to consider as we give advice and consent. Perhaps Professor Liu of the Berkeley Law School put it best when he wrote this. He said: Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won't turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. He says: [T]his is not the America we know. Nor is it the America we aspire to be. So these are the reasons we need to take a hard look at what we are doing, even if it means swimming upstream. There are consequences to this nomination that I do not believe all the American people got out of the hearings because the hearings did not answer questions. And when you pose some of these choices to Americans, they come down on the side that I have described: being protected, not making those kinds of choices about a young kid, making sure that our privacy is protected. So for those reasons, and others I will discuss starting on Monday, I oppose Judge Alito's nomination. And I hope that colleagues, others, will join in that effort in the end. I yield the floor and suggest the absence of a quorum.

Mr. KERRY

Mr. KERRY. Mr. President, obviously, today we face one of the most important choices we make as Senators. This is a choice, as colleagues have said, that is going to affect the country for the next several decades. To replace Justice Sandra Day O'Connor, the President has nominated a man who has consistently deferred to Government action regardless of how egregious that action may be. He has nominated a man whose pattern of decisions erects rather than breaks down barriers in the area of civil rights; a man who, to this day, has never retreated from his declaration that the Constitution does not protect a woman's right to privacy; a man who has demonstrated a persistent insensitivity to the history of racial discrimination in this country and was even, at the Government's request, willing to ignore overwhelming evidence that African Americans were intentionally stricken from an all-White jury in a Black defendant's capital case. Judge Alito has been nominated to fill the seat, as we know, of an individual who has been the Court's swing vote; a woman who has upheld affirmative action programs; a woman who upheld the right to choose; a woman who upheld State employees' rights to the protections of the Family Medical Leave Act; a woman who recognizes that a declaration of war is not a blank check for the President's actions; a woman who decides each case narrowly on the facts presented, keenly aware of the greater impact that her decisions have. So this is the contrast. We are being asked to confirm a nominee who will shift the ideological balance of the Court dramatically to the right. And many people are cheering for that. We are being asked to confirm a nominee whose views will undermine a balance of power that I believe, and many others believe, literally keeps our country strong, a balance of power that helps to bring people together rather than divide them, that helps to apply the Constitution to people in all walks of life, not simply those with power and privilege. For the reasons of this track record: the of his writings in the Justice Department, the questions unanswered in the hearings, the cases he has decided, where studies have shown a pattern of willingness to ignore our Constitutional rights and deny people access to our court system, for all of these and for other compelling reasons, I oppose this nomination. In the past, in the 22 years I have been here, like many of my colleagues, I have voted for Federal court nominees despite the fact I disagreed with them ideologically. I have voted, I am confident, literally hundreds of times. In fact, I voted for Justice Scalia because despite our ideological differences, in the confirmation process he promised to be openmindedness that we have not seen in the Court. So we have learned the hard way. The words of the confirmation hearings simply do not erase ideology, they do not erase a track record. And that ideology cannot be overlooked because a Justice's decisions can and will have a profound impact on the rights that we otherwise take for granted. So something more is needed. A Supreme Court Justice needs to understand and have a record of respecting the constitutional rights and liberties which we confirm them to uphold. He or she needs to recognize the importance of precedent and the limited situations in which overruling is acceptable. He or she needs to appreciate the significant struggles that our Nation has endured in the context of racial, sexual, and disability discrimination and to be aware of the road still to be traveled. And that awareness of the road still to be traveled has to be evidenced in the decisions and writings of that nominee. In short, ideology does matter. The Supreme Court's ideologically driven decisions have been the most regrettable in our Nation's history, decisions such as Korematsu, Dred Scott, and Plessy v. Ferguson. In fact, ideology matters more in this nomination than it would in many others. We are replacing Sandra Day O'Connor, President Reagan's nominee to the Supreme Court, the person who has occupied the center of balance on the Court. She has been the deciding vote in critical cases involving and defining our constitutional rights and liberties. As we contemplate ripping that center out from under the Court, we have to understand what the impact of that action will be. Given how high the stakes are, our decision simply cannot be based on whether Judge Alito is a smart man or whether he is a nice man or whether he is an accomplished man or even whether he is well respected in legal circles. He is all of those things. But what we need to consider is the impact that a Justice Alito will have on the Court and whether that impact is good for our country, good for our Constitution, and good for the American people. I believe, based on his track record, the decisions already made, the writings already expressed, the questions that went un-answered, that the he will have a detrimental effect. President Bush had the opportunity to nominate someone who would have united the country. He could have nominated somebody who would have received 100 votes or 98 votes. He chose not to do this, which is his right. We all understand. We have heard the argument about the consequence of elections. The fact is, he chose not to do that. The way in which this nomination came to us in the Senate tells us a huge amount what this nomination really means. The President was under fire from his conservative base for nominating Harriet Miers, a woman whose judicial philosophy was unmercifully attacked. President Bush, in the end, broke to those extreme rightwing demands. This was an ideological coup. Miers was removed and Alito was installed. The President didn't consult with the Senate, as required by the Constitution. He gave more thought to what the political needs were than to what the country's needs were. Indeed, he made this nomination about his political base. He made it about an ideological shift in the Court. He made it about unassailable conservative credentials and an unimpeachable conservative judicial philosophy. If you want proof of that, all you have to do is look at the comments of people such as Ms. Ann Coulter. We all know Ms. Coulter is capable of being as inflammatory and conservative as anyone in the country, often engaging in character assassination. She denounced the nomination of John Roberts. She attacked the nomination of Harriet Miers, calling her completely unqualified and lamenting that President Bush had ``thrown away a Supreme Court seat.'' Yet she celebrated the nomination of Sam Alito, stating that Bush gave the Democrats a ``right hook'' with this ``stunningly qualified'' nominee. This from a woman who said that the Republicans need to nominate a person who ``wake[s] up every morning . . . chortling about how much his latest opinion will tick off the left.'' Failed Supreme Court nominee Robert Bork had a similar reaction. He denounced the Miers nomination as ``taking the heart out of a rising generation'' of conservative constitutional scholars and ``widen[ing] the fissures within the conservative movement.'' Yet he praised Alito's nomination as ``substantially narrowing'' that rift. In fact, he called the nomination something to ``rejoice'' because if Alito were confirmed, it would only take ``one more Justice of the Roberts-Scalia- Thomas-Alito stripe to return the Court to so-called jurisprudential respectability.'' Let's not forget conservative stalwart Pat Buchanan who denounced the Miers nomination as revealing the President's lack of desire ``to engage the Senate in fierce combat to carry out his now suspect commitment to remake the Court in the image of Scalia and Thomas.'' Apparently, Mr. Buchanan believes that the Alito nomination demonstrates the President's change of heart. He heralded the nomination as one that would unite and rally the base, a nomination for the base, not the country. They say you can tell a lot by somebody's friends. These three individuals are consistently on the furthest edge of the ideological spectrum. Their positions rarely advance the interests of average working folk in America. So perhaps it should come as no surprise that these folks have jumped to support Judge Alito. After reviewing more than 400 of Judge Alito's opinions, law school professors at Yale concluded: In the area of civil rights law, Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age, and disability claimants. . . . Judge Alito seems relatively willing to defer to the claims of employers and the government over those of advancing civil rights claims. Similarly, a Knight Ridder review of Judge Alito's opinions concluded that Judge Alito ``has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the Nation's laws'' and that he ``seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination, or consumers suing big business.'' After reviewing 221 of Judge Alito's opinions in divided cases, the Washington Post concluded that Judge Alito is ``clearly tough minded . . . having very little sympathy for those asserting rights against the government.'' The pattern is clear, and I think it is unacceptable. I don't think you should put somebody on the Court who makes access to justice in the United States harder and more elusive for people who already face incredible obstacles when trying to have their voices heard in court. I don't think we should put somebody on the Court who will fail to serve as an effective check on excessive Executive power. If this pattern is not enough, as has been described by others, then all we to have to do is look at some individual cases. In Sheridan v. E.I. duPont De Nemours and Company, Judge Alito wrote a lone dissent opposed by all of the other judges on the court, eight of whom were Republicans. His opinion would have made it more difficult for victims of discrimination to sue their employers. Applying a similarly high standard of proof, one that the majority believed would eviscerate the protections of title VII, Judge Alito dissented from a decision to allow a racial discrimination claim to go to trial in Bray v. Marriott Hotels. These are all cases where people were trying to have their rights adjudicated, and disagreeing with his colleagues, including Republican- appointed judges, Judge Alito said no. What is the practical impact of these decisions? Simple: They keep victims of discrimination from having their day in court. If it is not enough to see this kind of insensitivity toward the victims of discrimination evidenced in those judicial opinions, in his 1985 job application to President Reagan's Justice Department, Judge Alito wrote that his interest in constitutional law was driven in part by a disagreement with Warren Court decisions on reapportionment, decisions which established the principle of one person, one vote. And he said that he was ``particularly proud'' of his work to end affirmative action programs. Judge Alito's hostility to individual rights isn't limited to civil rights. He consistently excuses government intrusions into personal privacy, regardless of how egregious or excessive they are. In Doe v. Groody, for example, he dissented from an opinion written by then-Judge Michael Chertoff because he believed that the strip search of a 10- year-old was reasonable. He also thought the Government should not be held accountable for shooting an unarmed boy who was trying to escape with a stolen purse or even for forcibly evicting farmers from their land in a civil bankruptcy proceeding where there was no show of resistance from those farmers. He believed a show of force from the enforcers was reasonable. This pattern of deference to power is reinforced by a speech he gave as a sitting judge to the Federalist Society just 5 years ago. In that speech, Judge Alito ``preached the gospel'' of the Reagan administration's Justice Department, the theory of a unitary executive. And though in the hearings Judge Alito attempted to downplay the significance of this theory by saying it didn't address the scope of the power of the executive branch but, rather, addressed the question of who controls the executive branch, don't be fooled. The unitary executive theory has everything to do with the scope of Executive power. In fact, even Stephen Calabresi, one of the fathers of the theory, has stated that ``[t]he practical consequences of the theory are dramatic. It renders unconstitutional independent agencies and councils.'' That means that Congress would lose the power to protect public safety by creating agencies like the Consumer Products Commission, which ensures the safety of products on the marketplace, or the Securities and Exchange Commission which protects Americans from corporations such as Enron. And who would gain the power? The Executive, the President. Carried to its logical end, the theory goes much further than simply invalidating independent agencies. The Bush administration has already used this theory to justify its illegal domestic spying program and its ability to torture detainees. The administration seems to view this theory as a blank check for Executive overreaching. Judge Alito's endorsement of the unitary executive theory is not the only cause for concern. In 1986, while working at the Justice Department, he endorsed the idea that Presidential signing statements could be used to influence judicial interpretation of legislation. His premise was that the President's understanding of legislation is just as important in determining legislative intent as Congress's, which is absolutely startling when you look at the history of legislative intent and of the legislative branch itself. President Bush has taken the practice of issuing signing statements to an extraordinarily new level. Most recently, he used a signing statement to reserve the right to ignore the ban on torture that Congress overwhelmingly passed. He also used signing statements to attempt to apply the law restricting habeas corpus review of enemy combatants retroactively, despite our understanding in Congress that it would not affect cases pending before the Supreme Court at the time of passage. The signing statements have been used to specifically negate or make an end run around very specific congressional intent. The implication of President Bush's signing statements are absolutely astounding. His administration is reserving the right to ignore those laws it doesn't like. Only one thing can hold this President accountable, and it is called the Supreme Court. Given Judge Alito's endorsement of the unitary executive and his consistent deference to government power, I don't think Judge Alito is prepared to be the kind of check we need. Reining in excessive government power matters more today to the average American than perhaps at any recent time in our memory, as we work to try to provide a balance between protecting our rights and our safety. As Justice O'Connor said: The war on terror is not a blank slate for government action. We can and must fight that in a manner consistent with our Constitution. Last but certainly not least, I have grave concerns about Judge Alito's ability and willingness to protect a woman's right to choose. In his 1985 job application, Judge Alito wrote that he was ``particularly proud'' of his work arguing before the Supreme Court that ``the Constitution does not protect a right to abortion.'' Now, all of us know this is an extraordinarily complicated issue. I don't know anybody here who is pro-abortion. But we are in favor of the right of people individually to make that choice for themselves rather than having the Government make that choice for them. And, the fact is that the Constitution protects that right. Yet, in 1985, Judge Alito wrote a memo outlining a strategy for chipping away at Roe v. Wade, an approach he believed would be more successful than asking for an outright reversal. In his hearings, Judge Alito stated these statements were accurate reflections of his views in 1985. But what is more disturbing is what he refused to say. He refused to say his views have changed, that he accepted Roe v. Wade as settled law, which even Chief Justice Roberts did during his confirmation hearings. In other words, Judge Alito refused to give any assurances that his concept of the Constitution's protected liberty is consistent with mainstream America's. I realize Judge Alito has promised he is going to keep an open mind, but I don't think any of us can be reassured by those words. We heard those very same words before. Justice Thomas repeatedly told the Judiciary Committee he would keep an open mind on this issue. But we all know that once safely on the Supreme Court, Justice Thomas voted to overturn Roe v. Wade months later, writing a dissent in Casey that likened abortion to polygamy, sodomy, incest, and suicide. Given Justice Thomas's success, you can almost imagine Karl Rove whispering to Judge Alito: Just say you have an open mind; say whatever it takes. We cannot rely on these empty platitudes, and we obviously cannot rely on any promises of open-mindedness given to the Judiciary Committee, particularly when they are absent an acknowledgment of what is or what is not a settled law, particularly when the nominee's entire professional history suggests something very different, and particularly when the past promises of that very nominee have already been rendered meaningless by his actions once safely on the bench. In Judge Alito's 1990 Judiciary Committee hearings, he promised that he would recuse himself in any cases involving the Vanguard Company given his ownership of Vanguard mutual funds. In his Supreme Court hearings, he admitted he could not remember having put Vanguard on his permanent recusal list. We know it did not appear on his 1993, 1994, 1995, or 1996 list. So how do we know he kept his word to the Judiciary Committee? We don't. How can we trust him now? We can't. I am deeply concerned about where we are heading with this ideological choice for the Court. I am deeply concerned about maintaining the integrity of our constitutional rights and liberties. I fear that the most disadvantaged in our society be locked out of our system of justice, a system that is already becoming increasingly harder for them to access. I fear that the President's powers will grow beyond what the Framers intended them to be, and I fear that Congress's hands will be tied even further and we will be unable to do the work of the American people. Therefore, I cannot and will not vote to confirm a nominee who will shift the Court in this ideological way. I believe that Judge Alito had the burden of proving not just to me, but to the American people, that he would not be a Justice who would move the Court far to the right, that he would understand what was settled law and what was not. I believe he failed to carry that burden. I believe if he moves the Court in the direction that I think he will--I hope I am proven wrong, but if he moves it far to the right, then I think that those rights and values which we cherish so deeply will be set back and the country will move backwards with them. Mr. President, I ask unanimous consent that letters to Senator Leahy and Senator Specter in opposition to this nomination from the Women's Caucus, Black Caucus, and Hispanic Caucus all be printed in the Record at this time.

Mr. KERRY. I yield the floor and I suggest the absence of a quorum.

Mr. KERRY. Mr. President, could we have an agreement on the time? I apologize, I was supposed to have the time between 1:30 and 2. Since the Senator from Kentucky is waiting--I wanted, obviously, to be able to complete my statement--we have agreed to switch times. He will speak for 15 minutes, with the agreement that I would then speak after.

Mr. KERRY. I thank the Chair.

Mr. KERRY

Mr. KERRY. Mr. President, the original GI Bill of 1944 was intended to help veterans readjust to civilian life, and to recognize the service they provided to their country. Subsequent GI Bills, including the one in force today, have been important tools to recruit the world's best troops. The GI Bill is meant ``to help meet, in part, the expenses of such individual's subsistence, tuition, fees, supplies, books, equipment, and other educational costs.'' At certain points historically the payment has met over 100 percent of these costs. Yet, today's troops, performing with such distinction in Iraq, Afghanistan, and other locations around the world, are returning home to a GI Bill that covers only 63 percent of the average price of a public four-year secondary education. Veterans are struggling to make up the difference in the price of their education. We have heard of a 28-year-old Navy veteran who served two deployments in the Persian Gulf between 1996 and 2002. When he went to school he had to supplement his GI Bill benefits by working part-time as a bartender and taking out tens of thousands of dollars in emergency loans. We've heard of a veteran who served 4 years in the airborne infantry prior to enrolling in a local community college in California under the GI Bill. He has been able to make ends meet at the community college by subsidizing his GI Bill benefits through part time work, but he worries that he will be unable to fulfill his dream of finishing up at UC Davis because his benefits and part time job will not cover the higher costs at the 4-year public secondary institution. But not all veterans are in a position where they can worry only about their education. Almost 60 percent of enlisted men and women are married today, compared with 40 percent in 1973. These veterans are faced with choosing to borrow in order to invest for the future or take care of their family now. We know of veterans who have lost that fight. One was unable to come up with the remaining third of the cost of his education and support his wife and baby daughter. His wife had convinced him to use his GI Bill benefits, but for this young veteran, ``the benefit just didn't match up to the cost of living'' and he dropped out of school after only one semester. Over the past 10 years, less than 10 percent of eligible veterans who signed up for the GI Bill from 1985 to 1994 used their entire educational benefit, although 70 percent have used some portion of it. The legislation I introduce today is the start of an effort to help veterans meet the everincreasing costs of education. It is only a start. I recognize that the cost of this proposal has to be addressed for the legislation to advance. Toward this end, Senator Ensign and I have written to the Veterans' Affairs Committee seeking reauthorization of a reporting requirement that will inform this process. And I plan to work with my colleagues in the coming months to find a solution that meets the needs of America's veterans. We know that improving GI Bill benefits isn't just about saying thank you. It is critical to recruiting the world's finest military. As recently as 2004, a survey of active duty service members found that GI Bill education benefits were the primary reason individuals chose to enlist. We recently increased sign-up and reenlistment bonuses for members of the military. The GI Bill must increase too. This legislation, the Armed Forces Education Benefits Improvement Act, would increase GI Bill educational benefits to cover the average price of a 4-year secondary education. According to the most recent report by the U.S. Department of Education, an average public 4-year education cost $14,260 in 2004-05, compared with the $9,036 provided under the current GI Bill for the same time period. The Armed Forces Education Benefits Improvement Act would also provide for real growth in future benefits that keep paces with the ever increasing cost of education. The bill would index the increased benefit to the ``college tuition and fees'' component of the Consumer Price Index. Currently, the increasing cost of education is out-pacing growth in GI Bill benefits, which are indexed to the less rapidly growing overall inflation. This legislation would also increase the base amount provided for members of the Selected Reserve by approximately 59 percent. And it maintains the same ratio in the FY05 Defense Authorization Act for those members of the Selected Reserve called up to active duty for at least 90 days. Finally, the Armed Forces Education Benefits Improvement Act would open' enrollment for updated Montgomery GI bill benefits to certain active duty service members who declined to accept the Veterans Education Assistance Program, VEAP, offered between January 1, 1977 and June 30, 1985. These veterans are the only group of active duty service members--other than service academy graduates and recipients of certain ROTC scholarships--who have not been able to sign up for GI Bill educational benefits. I am pleased that this legislation has been endorsed by the Military Officers Association of America and the Reserve Enlisted Association. I know my colleagues are as inspired as I am by the dedication, courage, and honor of the soldiers, sailors, airmen, and Marines we meet around the world. They serve with a selfless devotion to their country and their mission--and we are all so very proud of them. The least that we can do is ensure the GI Bill education benefits keep pace with the cost of education in this country. I look forward to working with my colleagues over the coming months to bring this legislation to fruition. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KERRY

Mr. KERRY. Mr. President, the fiscal year 2006 Defense Authorization Act contains a number of provisions that take an important step towards the Military Family Bill of Rights I believe we need. Among the final provisions, the legislation authorizes an increase of the death gratuity to $100,000 for all active-duty service members. I was pleased to originally offer this provision as an amendment to the fiscal year 2005 supplemental appropriations act earlier this year. I was happy to work with Senator Levin on this bill to bring this provision into reality. I offered another amendment on the supplemental last spring to increase to 1 year the length of time surviving families of service members may reside in Government housing or receive the basic allowance for housing. It was signed into law then, but because it was part of the supplemental, it expired with the end of the fiscal year. The fiscal year 2006 National Defense Authorization Act makes this extension permanent. I am also pleased that the final bill includes authorization for increased funding for Project Sheriff--an initiative of the Office of Force Transformation to provide our soldiers and marines with a full spectrum of lethal and nonlethal weapons when engaging enemies in an urban environment. The Defense authorization bill includes other important provisions for our country: a 3.1-percent pay raise for military personnel; increased Army and Marine Corps end strength, and an expansion of TRICARE benefits for members of the Selected Reserve and their families. Taken together, these provisions are important milestones. They are further testament of this Congress's and this country's determination to maintain the best trained, best equipped, best prepared, and most capable military on earth. It is also a recognition of the important contributions made by military families--families who give so much to this country. When I voted for this legislation on the Senate floor, one essential aspect was that the limitations placed on the review of habeas corpus claims of Guantanamo Bay detainees were prospective only. I am pleased to say that the bill's effective date was not altered in conference. As a result, as the Supreme Court held in Lindh v. Murphy, it still employs the normal rule that our laws operate prospectively.

Mr. KERRY

Mr. KERRY. The whole reason this is being put on DOD is to make it tough on Senators. And it is tough--

Mr. KERRY. Because they fear going home and somebody says: You voted against the troops. This is not about the troops. We are all supportive of the troops, and we can have the money for the Defense bill, but we should do it according to the rules of the Senate.

Mr. KERRY. Will the Senator yield?

Mr. KERRY. Madam President, I have as passionate a feeling against the Arctic Refuge drilling as I know the Presiding Officer and the Senator from Alaska, the senior Senator, have for it. I do not believe, when you look at the facts dispassionately, on their face, that it is going to do any of the things that are promised. On its face, drilling in the Alaska National Wildlife Refuge does not help solve America's drilling problem. We are overly dependent. We have only 3 percent of the oil reserves in the world. There is no way for this to make a dent in the world oil supplies, in the supply or price of gasoline or America's energy independence. But that is not the debate today. The debate today is what the Senator from West Virginia was talking about. Every so often in the Senate we have a gut check about what it means to be a Senator and why we are here and what our duty is--our duty. The arguments we have just heard from the Senator from New Hampshire and the Senator from Mississippi--we all agree we want border money. We all agree we want the money for our troops. We agree we want the money for those hurricane victims. Every single one of us in the Senate knows how this place works. If we say no to this breaking of the rules, which is what is creating this impasse, within hours we can pass this bill with the border money, with our troop money, and with the hurricane money. We can do that. There is only one thing stopping us. What is stopping us is the fact that in an effort to do what they could not do by following the rules, they are now going to break the Senate rules for a matter of expediency.

Mr. KERRY. That is what is at stake. That is the vote.

Mr. KERRY. That is what we are here for. That is what this is about. There is not one Senator here who does not understand that if we say no to cloture now, this can be stripped out. The Senator from Alaska himself has said he would strip it out, that if it does not happen they can take it out, reconvene the conference, we come back, and if it means an extra day to preserve the rules of the Senate, we ought to take that extra day. The fact is, this bill could have been passed 3 months ago, and it was held up because of a stubborn insistence on the issue of torture. Now it is being held up in order to break the rules in order to be able to do ANWR. I hope our colleagues will stand up for the Senate. It is not pro-ANWR or against ANWR. It is not protroops or against troops. It is for the Senate.

Mr. KERRY

Mr. KERRY. Mr. President, the fiscal year 2006 Defense Appropriations Act is a vitally important piece of legislation. It funds the operations of the Department of Defense and, in this particular case, the wars in Iraq and Afghanistan. It is disgraceful that this bill was delayed until the end of the year by an administration that was more interested in lobbying for the right to torture than in meeting the needs of our troops. Now at this late hour, it was further delayed by those who sought to take a bill they knew people would support--funding our troops--and load it up with favors for special interests. With these issues resolved, I am pleased this important legislation has finally passed. The fiscal year 2006 Defense Appropriations Act includes funding for everything from boots to beans to bullets--everything our Armed Forces need to keep America safe. This bill funds the national defense program at $453.28 billion, including $50 billion in emergency appropriations for on going operations in Iraq and the war on terror. The legislation funds recent and pending increases in Army end strength, provides a 3.1 percent pay raise to all members of the U.S. military, and increases housing allowances. It funds the readiness programs that maintain our military's ability to conduct operations around the world, whether that means flying hours for pilots, steaming days for Navy crews, spare parts, training, or maintenance. The legislation funds major acquisition programs in every service-- whether the C-17, PAC-3 missiles, the Army's Stryker, or the Navy's DD- X program. It also funds $72.1 billion in research development test and evaluation. That includes future systems--whether air, land, space or sea systems--as well as important medical research that will bring our soldiers the most advanced medical treatment on future battlefields. The future American military, its capabilities, and its personnel are all funded in this legislation. The $50 billion emergency appropriation included in this legislation funds on going operations in Iraq, Afghanistan, and wherever the war on terror takes American forces. That total includes money for combat pay, death gratuities, and other allowances. It includes $142.8 million for body armor and other personal protection equipment and $1.4 billion for the Joint Improvised Explosive Device Task Force. It funds important programs to replace lost or damaged helicopters and ground vehicles and restocks ordinances used in operations. It also includes $1 billion to meet immediate equipment deficiencies in the National Guard and Reserves. The Defense appropriations bill is one of the most important pieces of legislation the Congress enacts each year. It is always tempting to some to try to attach riders to it that have nothing to do with the defense of our country or the courageous Americans who make up the U.S. military. I am pleased that, at long last, the Senate finally moved this vital legislation that is so important to our troops. Mr. President, I know there will be some who criticize this legislation because of the way it was ultimately enacted. I share those frustrations. I wish that we could have passed a clean defense appropriations act 3 or 4 months ago to avoid the challenges we have seen in the last days. It is regrettable that we did not, but I am happy that this legislation has finally passed so that our troops receive the resources they need to protect this country.

Mr. KERRY

Mr. KERRY. Mr. President, the original GI Bill of 1944 was intended to help veterans readjust to civilian life, and to recognize the service they provided to their country. Subsequent GI Bills, including the one in force today, have been important tools to recruit the world's best troops. The GI Bill is meant ``to help meet, in part, the expenses of such individual's subsistence, tuition, fees, supplies, books, equipment, and other educational costs.'' At certain points historically the payment has met over 100 percent of these costs. Yet, today's troops, performing with such distinction in Iraq, Afghanistan, and other locations around the world, are returning home to a GI Bill that covers only 63 percent of the average price of a public four-year secondary education. Veterans are struggling to make up the difference in the price of their education. We have heard of a 28-year-old Navy veteran who served two deployments in the Persian Gulf between 1996 and 2002. When he went to school he had to supplement his GI Bill benefits by working part-time as a bartender and taking out tens of thousands of dollars in emergency loans. We've heard of a veteran who served 4 years in the airborne infantry prior to enrolling in a local community college in California under the GI Bill. He has been able to make ends meet at the community college by subsidizing his GI Bill benefits through part time work, but he worries that he will be unable to fulfill his dream of finishing up at UC Davis because his benefits and part time job will not cover the higher costs at the 4-year public secondary institution. But not all veterans are in a position where they can worry only about their education. Almost 60 percent of enlisted men and women are married today, compared with 40 percent in 1973. These veterans are faced with choosing to borrow in order to invest for the future or take care of their family now. We know of veterans who have lost that fight. One was unable to come up with the remaining third of the cost of his education and support his wife and baby daughter. His wife had convinced him to use his GI Bill benefits, but for this young veteran, ``the benefit just didn't match up to the cost of living'' and he dropped out of school after only one semester. Over the past 10 years, less than 10 percent of eligible veterans who signed up for the GI Bill from 1985 to 1994 used their entire educational benefit, although 70 percent have used some portion of it. The legislation I introduce today is the start of an effort to help veterans meet the everincreasing costs of education. It is only a start. I recognize that the cost of this proposal has to be addressed for the legislation to advance. Toward this end, Senator Ensign and I have written to the Veterans' Affairs Committee seeking reauthorization of a reporting requirement that will inform this process. And I plan to work with my colleagues in the coming months to find a solution that meets the needs of America's veterans. We know that improving GI Bill benefits isn't just about saying thank you. It is critical to recruiting the world's finest military. As recently as 2004, a survey of active duty service members found that GI Bill education benefits were the primary reason individuals chose to enlist. We recently increased sign-up and reenlistment bonuses for members of the military. The GI Bill must increase too. This legislation, the Armed Forces Education Benefits Improvement Act, would increase GI Bill educational benefits to cover the average price of a 4-year secondary education. According to the most recent report by the U.S. Department of Education, an average public 4-year education cost $14,260 in 2004-05, compared with the $9,036 provided under the current GI Bill for the same time period. The Armed Forces Education Benefits Improvement Act would also provide for real growth in future benefits that keep paces with the ever increasing cost of education. The bill would index the increased benefit to the ``college tuition and fees'' component of the Consumer Price Index. Currently, the increasing cost of education is out-pacing growth in GI Bill benefits, which are indexed to the less rapidly growing overall inflation. This legislation would also increase the base amount provided for members of the Selected Reserve by approximately 59 percent. And it maintains the same ratio in the FY05 Defense Authorization Act for those members of the Selected Reserve called up to active duty for at least 90 days. Finally, the Armed Forces Education Benefits Improvement Act would open' enrollment for updated Montgomery GI bill benefits to certain active duty service members who declined to accept the Veterans Education Assistance Program, VEAP, offered between January 1, 1977 and June 30, 1985. These veterans are the only group of active duty service members--other than service academy graduates and recipients of certain ROTC scholarships--who have not been able to sign up for GI Bill educational benefits. I am pleased that this legislation has been endorsed by the Military Officers Association of America and the Reserve Enlisted Association. I know my colleagues are as inspired as I am by the dedication, courage, and honor of the soldiers, sailors, airmen, and Marines we meet around the world. They serve with a selfless devotion to their country and their mission--and we are all so very proud of them. The least that we can do is ensure the GI Bill education benefits keep pace with the cost of education in this country. I look forward to working with my colleagues over the coming months to bring this legislation to fruition. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KERRY

Mr. KERRY. Mr. President, one of the reasons I love and respect my wife Teresa Heinz Kerry so very much is because she has always maintained the strength of her convictions. She speaks her mind, and she speaks the truth. I am especially proud of her passionate defense of her fellow Pennsylvanian--the decorated veteran and respected military expert, Representative Jack Murtha. In a recent essay, Teresa's powerful words spoke of Jack Murtha's courage and integrity rose above the disparaging and unconscionable words of those who smeared him. As I read what she wrote, I realized why this issue had struck such a chord with her--and why she was able to speak with such incredible clarity--because, as someone who grew up under a dictatorship, Teresa believes deeply in the freedom of every American to speak their mind without fear of condemnation. The characteristics we all admire in Representative Murtha--honesty, compassion, strength and patriotism--are the characteristics that make Teresa such an incredible citizen. I am glad she spoke out, and for that reason, I ask that her words be printed in the Record.

Mr. KERRY

Mr. KERRY. I don't yield the floor yet. I am happy to yield for a question.

Mr. KERRY. Reserving the right to object, I will not object, providing that the same agreement stands with respect to the quorum call that the Senator from North Dakota put into place with respect to my agreement and the agreement for Senator Stevens.

Mr. KERRY. I thank the Chair, and I thank the managers. Clandestine Prison Facilities Mr. President, more than a month ago we learned of the possible existence of clandestine prison facilities operated around the world by the Central Intelligence Agency. This revelation caused serious problems with some of our most important allies in the war on terror, and it raised important questions about the Congress's ability and willingness to perform oversight. Before the Thanksgiving break, the Senate came together in a bipartisan fashion to pass an amendment to the Defense Authorization Act which would have required a report on alleged clandestine detention facilities operated by our own Government. I was glad to be able to work with Senator Roberts and Senator Rockefeller to craft language that would make it possible for Congress to do this job. It was a successful effort. It was a remarkably bipartisan effort. On November 10, 2005, the Senate voted 82 to 9 for the amendment we worked out. That amendment required the Director of National Intelligence to provide a classified report to the members of the Intelligence Committees of both the House and the Senate which would set forth basic information, including the location and size of such facilities, the number of detainees held, and the explanation of what we intend to do with those detainees. For example, will they face military tribunals? What will be the consequences and manner of their detention? Finally, consistent with the McCain antitorture amendment, my amendment would require a description of the interrogation procedures used on detainees in such facilities and a determination of whether those procedures were in compliance with America's obligations under the Geneva Conventions and the Convention Against Torture. The House endorsed that amendment with a bipartisan vote just last week. Now, not surprisingly, given that this was an intelligence provision on a DOD bill, the amendment to the Defense authorization bill fell out in the conference--not on the merits, on procedure. We anticipated that, and we worked with the Intelligence Committee in order to attach it to the intelligence authorization bill. Here we are, and the intelligence authorization bill is stalled in the Senate. This important amendment is in limbo because an extreme minority objects to an amendment with strong bipartisan support from Members in both Chambers of the Congress. More than 80 Senators voted for this amendment about a month ago. The chairman of the Senate Select Committee on Intelligence supports it. The vice chairman supports it. But the bill and this amendment will not move. All here believe in what we are trying to do to win the war on terror. Everyone here accepts this is a war we need to win. We do not underestimate, any of us, the depravity and viciousness of our enemies or of what is at stake. We have absolute confidence in the desire and the determination of the American people to join in doing anything necessary in order to win. But we also believe the informed consent of the American public is crucial to that success. As I said more than a month ago when we first debated this issue, in an issue as sensitive as this, one which challenges the basic value systems by which we operate, the informed consent that allows you to do what you need to do will only come through the Congress itself, through our active understanding and involvement in these issues. That requires information. It requires cooperation from the administration so we in Congress can provide effective and informed oversight. I find it very difficult to understand why anyone would hold up legislation as important as the Intelligence Authorization Act, to object to an amendment that has such strong bipartisan support in the Senate, to delay an amendment that does not pass any judgment on the merits or the value of those facilities but simply informs the Senate about where, what, and how those facilities may or may not be operated. To frustrate an effort that seeks only to help Congress have information with which to do its job seems to be an extreme position, indeed. In this case, our job is oversight. Our job is to make sure we are not violating laws. Our job is to make sure we are living up to our standards and our values. I thank Senator Roberts, and I thank Senator Rockefeller for their hard work and their diligence on this issue. I hope we can find a resolution and pass the Intelligence Authorization Act this week. This is an important bill. At a time when a lot of the debate in the Senate is involved with matters of urgency for troops and urgency for national security, and where the President is holding press conferences and attacking individual Senators for their interference in the war on terror, and so on and so forth, it seems to me to not move forward on the intelligence authorization bill is to, in a concrete way, be standing in the way of doing the very things the President is talking about. I hope we can find a way to move that. Under the rule, I see the Senator from Kansas wants to speak. But if I recall, there is an understanding that Senator Stevens was going to speak.

Mr. KERRY

Mr. KERRY. Mr. President, today Senator Isakson and I introduce legislation to increase civil penalties for child exploitation. Our legislation is a small piece of a larger battle that we believe will stop would-be child predators and protect our children. Predators like the ones who exploited Masha, a little girl who was featured on Prime Time Live a few weeks ago, and the thousands of other children who are victims of these horrific crimes. According to the National Center for Missing and Exploited Children, child pornography has become a multi-billion dollar internet business. With the increasingly sophisticated technology of digital media, child pornography has become easier to produce and purchase. Countless people around the world have instant access to pictures and videos posted on the Internet and, unfortunately, millions of these images are pornographic depictions of infants and children. Masha is one of these children, whose images--hundreds of them--are on the Internet and being downloaded around the world. And while the man who sexually abused Masha and posted the pictures on the web is in jail, the damage has been done and will continue until people stop downloading pictures of her off the internet. Under current law, a victim of child exploitation is entitled to civil statutory damages in U.S. District Court in the amount of $50,000--less than the civil penalty for illegally downloading music off the internet. This penalty is far too low to effectively deter would-be child pornographers. This legislation increases the civil penalties recoverable by victims of child sexual exploitation, including internet child pornography, to at least $150,000. This increased penalty will serve as a deterrent to those who disseminate and possess child pornography, as well as a means of compensating victims of this terrible abuse. If someone downloads a song off the Internet, Federal copyright law provides for statutory damages to be awarded to the copyright holder in the amount of $150,000. Downloading child pornography is far more detrimental to the victim than downloading copyrighted music and, as a result, the penalty should reflect that. But it is not only the statutory damages that are flawed. The current statute states that ``Any minor who is a victim of a violation [of the act] may sue in United States District Court''. This language has been interpreted literally by a Federal district court to restrict recovery to plaintiffs whose injuries occurred while they were minors. Thus, when victims turn 18 they cannot recover against their perpetrators even if pornographic images of them as children are still distributed via the internet. Our legislation would clarify the statute to include victims of child pornography who are injured as adults by the downloading of their pornographic images. This bill takes an important step towards ensuring justice for victims of child exploitation. I would urge speedy passage of this legislation as a stand alone bill or encourage its inclusion in a larger child protection package. It is the very least Congress can do for Masha and the thousands of children like her who have suffered at the hands of these criminals. I thank Senator Isakson for his co- sponsorship, and I look forward to working with him and all my colleagues to see that it passes the Senate.

Mr. KERRY

Mr. KERRY. Mr. President, today Senator Isakson and I introduce legislation to increase civil penalties for child exploitation. Our legislation is a small piece of a larger battle that we believe will stop would-be child predators and protect our children. Predators like the ones who exploited Masha, a little girl who was featured on Prime Time Live a few weeks ago, and the thousands of other children who are victims of these horrific crimes. According to the National Center for Missing and Exploited Children, child pornography has become a multi-billion dollar internet business. With the increasingly sophisticated technology of digital media, child pornography has become easier to produce and purchase. Countless people around the world have instant access to pictures and videos posted on the Internet and, unfortunately, millions of these images are pornographic depictions of infants and children. Masha is one of these children, whose images--hundreds of them--are on the Internet and being downloaded around the world. And while the man who sexually abused Masha and posted the pictures on the web is in jail, the damage has been done and will continue until people stop downloading pictures of her off the internet. Under current law, a victim of child exploitation is entitled to civil statutory damages in U.S. District Court in the amount of $50,000--less than the civil penalty for illegally downloading music off the internet. This penalty is far too low to effectively deter would-be child pornographers. This legislation increases the civil penalties recoverable by victims of child sexual exploitation, including internet child pornography, to at least $150,000. This increased penalty will serve as a deterrent to those who disseminate and possess child pornography, as well as a means of compensating victims of this terrible abuse. If someone downloads a song off the Internet, Federal copyright law provides for statutory damages to be awarded to the copyright holder in the amount of $150,000. Downloading child pornography is far more detrimental to the victim than downloading copyrighted music and, as a result, the penalty should reflect that. But it is not only the statutory damages that are flawed. The current statute states that ``Any minor who is a victim of a violation [of the act] may sue in United States District Court''. This language has been interpreted literally by a Federal district court to restrict recovery to plaintiffs whose injuries occurred while they were minors. Thus, when victims turn 18 they cannot recover against their perpetrators even if pornographic images of them as children are still distributed via the internet. Our legislation would clarify the statute to include victims of child pornography who are injured as adults by the downloading of their pornographic images. This bill takes an important step towards ensuring justice for victims of child exploitation. I would urge speedy passage of this legislation as a stand alone bill or encourage its inclusion in a larger child protection package. It is the very least Congress can do for Masha and the thousands of children like her who have suffered at the hands of these criminals. I thank Senator Isakson for his co- sponsorship, and I look forward to working with him and all my colleagues to see that it passes the Senate.

Mr. KERRY

Mr. KERRY. Mr. President, we have debated for years, all the years that I have been here, the Arctic Wildlife Refuge. It is stunning that an issue as controversial, as divisive as that would be put on a bill that needs to pass by unanimous consent. I know Senator Stevens and others have said we have had bills on which we have put a number of different items, such as the omnibus bill back in the days of President Clinton where we put seven or eight items on it--I forget exactly how many. But the difference is we did it with unanimity. We did not have a divided Senate over that issue. We did not have a vote. We all agreed all of those items ought to go into the bill. What is different here is the disagreement, is the division over this issue. The fact is, many of us are very passionate about this issue, so much so that the Senate has been divided by one vote. A one-vote division is being disrespected in this effort because they know the rules of the Senate would prohibit them from doing it without changing and breaking those rules. The fact is, ANWR, the Arctic National Wildlife Refuge, according to any definition I have ever seen, ceases to be a refuge. All the efforts to gloss over it do exactly that, they simply gloss over it. The fact is, we have heard arguments that you can somehow drill in the Arctic National Wildlife Refuge in an environmentally friendly manner. We have heard that drilling in the refuge is going to reduce our dependence on foreign oil. We have heard it is going to bring down gas prices at the pump. We have even heard that it belongs in the national budget because of the revenues that are going to come from the lease sales. Every single one of those arguments fails before legitimate, honest scrutiny. First of all, by definition, an industrial zone and a wilderness cannot occupy the same space--can't do it. You can't have a wilderness and have an industrial zone. So the minute you declare ``industrial zone,'' gone is the wilderness. What has been set aside all these years since President Eisenhower, is eradicated, gone--gone for all time. In 1960, the Eisenhower administration first recognized the value of that area, and it was established to be a unique wildlife and landscape. Drilling proponents keep claiming we are only going to drill on 2,000 acres--the oil corporations. But the fact is, when you look at the plans and you examine how they go at it, in fact, the entire 1.5 million acres, the 102 area is going to be open to testing, to leasing, and exploration, and it does not happen in one compact area. That is because, as with the North Slope oilfields west of the Arctic refuge, you have the development sprawling over a very large area stretching across the Coastal Plain. According to the U.S. Geological Survey, the potential oil under the Coastal Plain is not concentrated in one large reservoir. It is put in many small deposits all across the plain. So to produce oil from this vast area, you have to create a network of pipelines and a network of roads, and all of those change the habitat of the entire Coastal Plain. I will acknowledge that new drilling technology is more efficient, and we have done wonders in many ways. It is less harmful to the environment. But the advantages with respect to this particular area have been greatly exaggerated. Even the new technology, such as directional drilling, does irrevocable damage. You have to have permanent gravel roads. You have to have busy airports for access. You have production wells that are scattered throughout the area, across more than a million acres of Coastal Plain, and you are going to have the connection of pipelines. And the entire complex is going to produce more air pollution than the city of Washington, DC. No matter how well it is done, oil development has a lasting impact on the environment. The industry itself has told us that. None other than British Petroleum said, ``We can't develop fields and keep wilderness.'' That is the oil company speaking for itself. If the facts and the frank admission of an oil company are not enough, then people ought to take a look at what the National Academy of Sciences said, and the Department of Interior, and a host of others who have come to the same conclusion. We also hear about the dependence on foreign oil. If the Arctic Wildlife Refuge produces the maximum amount of oil they say it might be able to produce, if 20 years from now it is at maximum pumping--which does nothing, obviously, to affect prices and supply today--it is possible that at best you could reduce oil imports from 62 percent to 60 percent. That is it--62 percent to 60 percent. It is not enough to affect the price of oil. It will not affect the global supply. It will not affect our dependence on the Middle East. But it will destroy the Arctic National Wildlife Refuge and provide some profits to the companies that take it out in the meantime. So everybody ought to understand that in its peak year for a single year, somewhere around 2020, drilling might reduce your dependency by about 2 percent. The price of oil will not drop, the price of energy will not drop, the price of gasoline will not drop, and our vulnerability to world oil prices and to world unrest and to dangerous regimes will not change. After that single year, the flow of oil from the refuge is going to start to decline as the reserves are depleted. Also, this is a phony argument that we need to somehow be doing this now. It has nothing to do with the immediate security of our country. The fact is, 95 percent of the Alaska oil shelf is open for drilling/ leasing today--95 percent of it. There are vast areas of that shelf that are open that are still not leased, still not producing. In addition, we have the largest oilfield in the world that is unexploited, which is in the Gulf of Mexico, the deepwater drilling of the Gulf of Mexico. Those leases have already been granted. They have already been environmentally permitted, but they are not being drilled. Why? Because the price differential thus far has not brought people to do that. If we want to do something for immediate American help, provide a subsidy, provide some assistance, do something that provides an incentive so that drilling takes place now. That would have far more effect than what is happening in this Alaska argument. The bottom line: I said it again and again everywhere I went over the course of the last 2 years during the Presidential race. Every time I had a chance, I talked about how we only have 3 percent of the world's oil reserves. That is all we have in America--3 percent. The Saudis have 46 percent. The Middle East has 65 percent. There is absolutely nothing the United States of America can do to drill our way out of our predicament--our dependence on oil. We have to invent our way out of it, and inventing our way out of it means moving to alternative fuels, means pushing the curve of discovery, doing what America has always done in terms of creation of new jobs and new technologies. That is why it is a phony argument. That is the bottom line of why we don't have to be here pushing to do this on a defense bill which is important to our troops and to our country. My hope is that in the next hours perhaps we can get a measure of reasonableness. But the bottom line still remains the same. There are people who believe deeply in drilling. I understand that. I respect that, and they can talk about that belief. That it not what this vote is about. What this vote is about, in the end, is whether this effort to open the Arctic National Wildlife Refuge ought to be allowed to circumvent the rules of the Senate and whether this is the message we want to send about the rules and how the Senate works; that nothing means anything around here as long as you can change it whenever you want. We have to remember that what goes around comes around. I don't think it is good for the Senate. I don't think this is good for this institution. I don't think it is good for a majority or a minority, one of which may be the other any day in the future, and regret this kind of this kind of effort. When we stand up for the rules, we stand up for history, we stand up for the Constitution, and we stand up for what this Constitution gives to us as an individual responsibility--each and every one of us. And when we break the rules, we send a damaging, dangerous message to the rest of our country that looks to this place--ostensibly used to look here anyway--for leadership. When you read the polls today about where the Congress is and the esteem of the American people, you ought to think twice about whether this is the way to proceed. I yield the floor.