Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I appreciate the opportunity to briefly address a health care issue of great importance to Arizona, all other southwest border States, and numerous other States. Hospitals in Arizona and throughout the country incur uncompensated costs of over $1.5 billion annually to provide federally mandated emergency health treatment to undocumented immigrants. MTG Corporation, a Texas-based firm, and the Border Counties Coalition, through a congressionally directed study, determined that the 24 counties along the Southwest border alone incur unreimbursed costs of over $200 million per year to provide emergency health treatment to undocumented aliens. Based on these estimates, MTG Corporation has concluded that nationwide hospitals, ambulances and other providers incur costs of over $1.5 billion per year. Arizona, as an example, is indicative of the problems that all States and their providers are facing. The cost to Arizona and its providers for providing these services might well be close to $200 million. These unreimbursed costs, and other health-related issues, have put hospitals around the country in a state of dire fiscal emergency. As a result of these costs, many doctors are simply choosing to practice medicine in such a way that they do not have to provide emergency room treatment-- in Phoenix, AZ, depending on the time of day, if you have a specific emergency a specialty doctor might not be available to treat you. Some emergency rooms have closed, or are in danger of having to close, their emergency rooms either temporarily or permanently because of these costs. I have introduced legislation, along with Senators McCain, Feinstein, Domenici, Cornyn, Hutchison, Clinton, and Schumer to provide $1.45 billion in funding annually to reimburse providers for these federally mandated, but uncompensated, costs. It is my understanding that there are resources in the budget for the Finance Committee to consider a measure to provide reimbursement funding for health providers that currently provide federally mandated, but uncompensated, emergency medical treatment to undocumented aliens, be it in the Finance Committee allocation, its reserve fund for the uninsured, or any other appropriate funding stream.

Mr. KYL

Mr. KYL. Mr. President, Rev. Lloyd Ogilvie came to the Senate when I did in 1995. He and I became good friends. Lloyd has meant more to me than I can express. He has been a friend and spiritual advisor to my colleagues and many, many staff members and employees of the Senate. Democrats and Republicans, men and women of many different religious faiths, could always call on him. He has been a focal point of the Senate family. On September 11, and every day since, his ability to share the power of his faith in God has been all the more invaluable to me and to others. He is eloquent and learned. He's done a wonderful job, opening every session with prayer, leading Bible study, helping us to understand Scripture and ourselves. For the good of this institution he has worked with us to realize, in the words of John Witherspoon, ``the dominion of Providence over the passions of men.'' Obviously that is pretty important here in the Senate, where we are frequently at loggerheads. Reverend Ogilvie, by lifting our sights to the world of the spirit, has been a soothing presence. We did not want to lose him; but we know it was necessary to be with his wife Mary Jane in California. We understand; and, since he is going to continue his prolific speaking, teaching, and writing, we also know we won't lose touch with him. The entire Senate family is better for the service of this influential servant of God. Lloyd and Mary Jane, Godspeed.

Mr. KYL

Mr. KYL. Mr. Senator, let me add to the comments of my colleague from Oregon. I compliment him for the work he has done. This is a good example of bipartisanship in working to solve a national problem. The people from the Appropriations Committee, the administration, and the Democratic and Republican Parties in the Senate have come together to restore some of these funds so we could help to create healthy forests for the benefit of all.

Mr. KYL

Mr. KYL. Mr. President, since the distinguished Senator from North Dakota intruded into the time, let me reiterate, this funding is from function 920, across-the-board discretionary funding. That is the fact. There is no Medicare, Medicaid, or Social Security offset, period.

Mr. KYL. Mr. President, what my distinguished colleague just told you is absolutely false. If it were true, then I would not support the amendment. Our amendment cuts from the discretionary funding across the board. There is no Medicare. There is no Medicaid. There is no Social Security. We would not do that. That would be foolish. It would not be prudent. We are not doing that. All this does is advance by 1 year the repeal of the death tax. We repealed it permanently in this body, starting with the year 2010. All this amendment does is start it in the year 2009. That is all it does. Since we have already adopted the permanent repeal, I hope my colleagues will support moving this up by 1 year.

Mr. KYL

Mr. KYL. Mr. President, last night leading elements of our coalition forces began to rid the land and the people of Iraq of the oppression of Saddam Hussein and eliminate the threat he poses to the rest of the world. Throughout our history, our Nation has experienced moments that have defined our spirit, our cause. We really do hold ``these truths to be self evident. * * * That all men are created equal,'' that all ``men are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness.'' This applies to the innocent Iraqis who have been brutalized by a cruel and morally bankrupt regime as much as it applies to the citizens of our Nation who deserve to be free of Saddam Hussein's threats. In the past, Americans have crossed oceans to free subjugated peoples and protect ourselves. On more than one occasion in the past century, our friends on the European continent have required our intercession and our sacrifice to extricate them from the foul pit of regional war, and genocide perpetrated by the evil men of those times. Our experience of war on our own soil also brought with it defining moments. On July 2, 1863, in a field outside of a little town in Pennsylvania called Gettysburg, a young Colonel named Joshua Lawrence Chamberlain addressed a group of his men, men of the 20th Maine, who were about to play a pivotal role in the success of the Union forces in that horrible battle. For his part in this battle, he was awarded the Congressional Medal of Honor. Though no exact record of his words exist, the following has been attributed to him, and I believe it reflects our motive, our mission, and the attitude of our men and women who are now in harm's way. He said to the assembled group: ``We all volunteered to fight for the Union * * * ours is a different kind of army. * * * If you look back through history, you will see men fighting for pay, women, some other kind of loot * * * they fight for land or power * * * because a king leads them or because they like killing. We are here for something new--this has not happened much in the history of the world--We are an army out to set other men free.'' To those who do not agree with us right now, to those who believe that the threat posed by Saddam Hussein is not worth the effort or the cost required to remove him, I offer the words of one of the great philosophers of liberty. The Englishman John Stuart Mill wrote: ``War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself.'' Mr. President, I call upon everyone to pray for our troops; to pray for their safety, to pray that the battle will be quick, and that their families will see them home again soon. I call upon the country to pray, too, for the innocent civilians of Iraq and the citizens of nearby nations whom Saddam seeks to harm; that all of them as much as we may be protected from his evil designs.

Mr. KYL

Mr. KYL. That is a general fund for Finance Committee action at some specified date in the future.

Mr. KYL. Mr. President, I tell my colleague the function in the budget is No. 920. That is the source of the funding for this amendment.

Mr. KYL. Might I add one more thing, that, in our amendment, is accounted for within the budget because the money is taken from another account so it is not added on to the expense of the budget.

Mr. KYL. Correct.

Mr. KYL. Mr. President, I will try to get the exact number here in just a moment. I am informed that the estimated cost is $46 billion.

Mr. KYL. Rather than restating all the arguments for repeal, since we have already voted to do that, I will bring my colleagues up to date on some current research about what the American people believe about the estate tax. A poll was conducted early this year between January 16 and 21. It was a poll of about three times as many people as are ordinarily interviewed. Over 2,500 registered voters were interviewed for this survey by a research company. Its findings ought to be of significant interest to my colleagues. The bottom line is with respect to the estate tax. The conclusion of the poll is that the American people simply oppose, on principle, the concept of anyone being taxed on the death of their parents or their spouse. I thought I would share just four specific results from this survey. When it comes to stimulating the economy, the poll confirmed that Americans overwhelmingly believe tax relief is more effective than increases in Government spending. This goes to the general proposition that is being debated between those who believe we should spend more to help our economy and those who believe we should provide tax relief. The question was, Which is better for the Federal Government to stimulate the economy, increase economic growth, and create new jobs? And they were given two choices. One was the tax cut option, and the other was the spending option. Fully 68 percent chose the tax cut option, whereas only 20 percent said increased Government spending was the best for economic growth and the creation of new jobs. Two of the subgroups are particularly fascinating. Among Democrats surveyed, the ratio in favor of tax cuts over increased spending is a healthy 2 to 1, 57 percent to 28 percent. I do not have it broken down by State, but among Democrats, if it is 2 to 1, I daresay among Republicans it is even more than that. Among those with incomes below $30,000, 65 percent back the tax cut approach to improving the economy, while only 19 percent prefer increased Government spending. This is a significant finding in the survey. If there is going to be a tax cut, the question is, Should everyone get something back or should we wait until we have a budget surplus? In other words, what of this argument that will be contributing to the deficit? When given a choice of three options, even with the debate about the ballooning deficit, just one in four Americans, 24 percent, believe there should be no tax cuts for anyone until we have a budget surplus. Let me restate that. Only 24 percent of Americans believe it is improper to cut taxes while we have a deficit. For those who believe the majority of Americans do not want to cut taxes until we are in a surplus situation, this survey demonstrates that is incorrect. Only 24 percent of Americans believe that. To the third point, tax fairness. This is where we get into the death tax repeal specifically, but it relates to other taxes, too. As a general proposition, one expects people tend to favor taxes on someone else and to oppose taxes that affect them directly. And that is, as a general proposition, true. But what this survey of over 2,500 Americans just a couple of months ago confirms is that there is a very strong consensus that there are a couple of taxes that are absolutely unfair and it does not make any difference what demographic category you are in. Whether you are rich or poor, the overwhelming majority believes there are two taxes that are absolutely unfair, and there is an overwhelming consensus they should be repealed. What are those two taxes? These are the two at the top of the list to the question, What tax do you think is completely unfair or completely fair? The two taxes people would repeal with the biggest majority are the Social Security benefit tax and the death tax. Remember the tax that was imposed in the early Clinton years to actually tax Social Security benefits? That is very unpopular. Five percent of the people think it is completely fair; 62 percent think it is completely unfair. With the death tax, 7 percent think it is completely fair and 62 percent also think that tax is completely unfair. Sixty-two percent of all Americans think it is completely unfair to have a death tax, and only 7 percent think it is completely fair. All other taxes--marriage penalty tax, long distance phone tax, savings account tax, all the way down to stock dividends, payroll income tax, property tax, gas tax, sales tax, right down the list, and they get increasingly popular. The marriage penalty, 60 percent of Americans think that is completely unfair. We are doing away with that in the tax package we will present as part of the budget. Long distance phone tax, 38 percent of the people think that is unfair. Capital gains tax, 23 percent think it is unfair. Stock dividend, more think it is completely unfair than completely fair, 23 to 21, the payroll tax, and so on. You finally get down to an alcohol and beer tax. That is pretty unpopular. Only 8 percent think that is a bad deal; 57 percent think it is fine. It is pretty much the same number for the cigarette tax. The bottom line is in this very recent extraordinarily large survey what we find is the two taxes the American people would repeal first and foremost are the tax on Social Security benefits and the estate tax. Fully 62 percent of the American people believe that tax to be completely unfair. With regard to the death tax in particular, you would think that this would be a tax that rich people would really like to get rid of and poor people would like to keep. After all, by its very nature, if you have a business or family farm or have some wealth to pass on to your heirs, repealing this tax would benefit you more than someone who has absolutely nothing. What does the survey show? Fully 65 percent of those with incomes below $30,000 believe the death tax is completely unfair. By comparison, a very interesting statistic, only 59 percent of individuals with incomes above $60,000 label the death tax unfair. Ironically, more people at the lower end of the economic spectrum view this tax as completely unfair than when you get to be higher in the economic spectrum. The fact is, another poll, a Gallup poll, demonstrated the same phenomenon. Even though most people understood that repeal of the death tax would not benefit them personally, an overwhelming majority still favored repeal of the death tax. Why? Because they understand it is unfair. One of the great things about this country and the American people is they have an innate sense of fairness. Even if something doesn't benefit them directly, they understand if it is wrong they are willing to support its repeal. There are some other interesting survey results in terms of arguments against the death tax. I thought some of these were fun, and then I will close this out. If you ask certain questions about the death tax, for example, if you remind people that the highest rate of taxation for the death tax is 50 percent, then 79 percent of the people agree that is unfair and the tax should be repealed. When you remind people that the inheritance tax represents double and triple taxation, again 79 percent believe it should be repealed. With some of the arguments that are actual statements of fact with respect to the inheritance or estate tax, when reminded of that, the American people are even more strongly in support of its repeal than if they are not reminded of that. Also, when you remind people that the tax is unfair because it singles out those who save and invest, for no reason other than the fact that they became successful and then died-- of course, the exact thing we try to teach people, save your money, invest it, try to pass it along to your kids. It is the American dream to make the next generation better off than your generation; if you live the American dream, you get punished. If you are broke, you don't get punished. Of course the American people, when reminded of that, are even stronger in favor of repeal. The bottom line is every subgroup and fully 58 percent of the electorate as a whole, including, as I said, a majority of every subgroup, would vote for a candidate who advocates repeal of the death tax. Only 32 percent would vote for the candidate who supported maintaining the death tax. The bottom line of all this research is it seems to me we would not be keeping faith with the American people unless we are willing to move forward the date that the death tax is repealed. In the interim period of time, we are reducing the rate and we are also increasing the amount of income that is exempted from the inheritance tax. Both are good. But it seems to me, given this fact, that it is not too much to ask my colleagues to accelerate by 1 year the date that the tax is actually repealed. There will be some who say we cannot afford an immediate repeal today. To that I say, if that is your view, fine. That is not what we are doing here. I would prefer to do that. I think we can compromise and agree that moving the repeal date forward 1 year is both something that is affordable and something that should be done. This amendment is very straightforward. That is the long and short of it. I think I pointed out the American people would support this. I hope since the Senate has already gone on record by repealing the estate tax in the year 2010, that we would not be bashful about moving that forward by 1 year, to 2009. I guess my question to the body when we finally bring this to a vote is, Did you mean it when you said we should repeal the estate tax? If so, let's move that repeal date forward by 1 year.

Mr. KYL. In the spirit of the day, I was going to take 30 minutes. I will take exactly half that time, 15 minutes, and perhaps later we can agree to a time limitation. We certainly should not need a great deal of time on this amendment. This amendment is very simple. It simply moves forward 1 year the time for repeal of the estate tax or what is known as the death tax. As my colleagues know, we repealed the death tax permanently in the year effective January 1, 2010. This amendment moves that to January 1, 2009. The reason for this is we can establish the proposition with this amendment that we do need to permanently repeal the estate tax. The budget that has been crafted by Senator Nickles and his committee has accounted for 3 years of permanent repeal. So that is already accounted for in this budget. This amendment would bring that forward 1 more year, so we would have a total of 4 years of repeal of the estate tax accounted for in our budget. We would still have to accomplish this, of course, by amendment or legislation. We cannot do it as part of the budget itself. This would create the opportunity for us to do that. That is the reason for my amendment. Now, there are a lot of reasons we decided to repeal the estate tax, and I don't think we need to repeat all of those tonight. The majority of this body supports repeal of the estate tax. We have passed repeal of the estate tax. There were good reasons for doing so, primarily because it is an unfair tax. In addition to that, it hurts small business. If you have a business of, say, 25 employees and you have to sell your assets, your equipment, in order to pay your estate taxes, not only have you had to disband your business but you have also put 25 people out of work. At this time in our economy where we are concerned about joblessness, where we want to create more jobs, not see more jobs disappear, knowing the estate tax is going to be permanently repealed even sooner than we anticipated will help businesses stay alive to provide the jobs and the economic growth we need. We know by far and away the vast majority of the jobs in this country are created by small business. There were a number of sponsors of our original repeal. I anticipate we will have a number of sponsors of this amendment. I ask unanimous consent Senator Sessions be added as an original cosponsor of my amendment.

Mr. KYL. I ask unanimous consent reading of the amendment be dispensed with.

Mr. KYL. Madam President, I have an amendment at the desk.

Mr. KYL. At most.

Mr. KYL

Mr. KYL. Mr. President, I would like to submit for the Record a recent resolution passed by the Arizona State Legislature declaring its support for a missile defense system. I commend the sponsors and supporters of this resolution for their recognition of the need for the United States to end its vulnerability to a ballistic missile attack by developing and deploying a missile defense system as soon as possible.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KYL

Mr. KYL. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. KYL

Mr. KYL. I wanted to compliment the Senator from Kansas for his leadership on this issue, as well as the Senator from Pennsylvania for his leadership. While they have done the bulk of the discussion on this issue, they represent a lot of us who feel just as strongly about the issue. I want them to know how much those of us who haven't spoken appreciate their leadership in proposing this legislation.

Mr. KYL. I would like to take 20 seconds.

Mr. KYL

Mr. KYL. Mr. President, in order to understand the constitutional problem we face with the filibuster of Miguel Estrada, it is important for the Senate and the public to focus on what is really going on here. This filibuster is not a dispute about Mr. Estrada's answers to questions. If it were about unanswered questions then more than two Democrats would have taken up the White House's offer to pose new written questions to Mr. Estrada or to meet with him privately and ask them in person. But they did not, and it is now clear that the repeated refusal even to ask questions has exposed the emptiness of that argument. I hope we hear no more of it. This filibuster also is not a dispute about confidential documents from the Solicitor General's office. Our filibustering colleagues must know that for the administration to comply with this demand is to undermine the effectiveness of the Department of Justice and its ability to defend the American people's interests in court. They must know that the President will not jeopardize the people's interests and that these confidential documents cannot be disclosed. So this document request is an unserious demand made precisely because the administration will not comply--just as four former Democrat Solicitors General have advised. No, this dispute is not about confidential memos. The fact is that there is plenty of information available--more than enough information for a thoughtful Senator to make a decision whether to vote up or down. But don't take my word for it. Take Minority Leader Daschle's word for it. Last week the distinguished minority leader said that Mr. Estrada is too conservative and that he opposes his confirmation. How could the minority leader possibly have reached that conclusion if the record is so bare? How could he have reached any conclusion? The answer is obvious: Mr. Estrada's record is more than ample for Senators to explore. Just as over 51 Senators have reviewed the record to their satisfaction and concluded that Mr. Estrada is qualified and should be confirmed, so must Senator Daschle have reviewed the record and concluded that he should not be confirmed. He did not need more information. So, why are we still here? Why is does this debate continue? Let us put aside these arguments about supposedly unanswered questions and disclosure of confidential memoranda, and let's focus on what this is really about: power. An unprecedented power-play by a partisan minority to re-define our constitutional ``advice and consent'' obligation at least for circuit court judicial nominees. This filibuster is about changing the rules of the game forever. For 214 years, the Senate has interpreted ``advice and consent'' to require majority approval for any judicial nominee who reaches the Senate floor. But if filibustering Democrats prevail here, that rule will forever be changed. No longer will the ``advice and consent'' clause mean majority rule. Instead, it will mean 60 votes. Now, my filibustering colleagues may say, ``well, no--we're not trying to change the standard; we just want more information.'' The time for dodging the essence of this constitutional moment has passed. There can no longer be any question that the true goal of this filibuster is to defeat Mr. Estrada's nomination by preventing a vote, to change the standard from a simple majority to a 60-vote requirement. A month ago the Senior Senator from Pennsylvania called this power- play a ``constitutional revolution,'' and it saddens me to say that I must agree. A key part of our Constitution is its ordering of power between the different branches and parts of Government. Our Constitution is written, but we rely upon more than just the written word to understand its meaning. We rely upon the considered opinions of those who are charged with its interpretation. In most cases, that is the Supreme Court and the inferior courts that Congress establishes. But the Supreme Court is not the only body charged with interpreting the Constitution, because some areas of the Constitution are not subject to conventional judicial review. One of those areas is the ``advice and consent'' obligation of Congress. To understand that clause, the Senate must do the interpreting. The Senate has long had the constitutional obligation to decide what those words mean. Throughout our history the Senate has had one consistent answer to the question of what ``advice and consent'' meant for lower court judicial nominees. That settled, bipartisan constitutional understanding of ``advice and consent'' was that only a majority vote is required. Now, a determined minority is determined to change the meaning of those words. And that is indeed a ``constitutional revolution,'' just as Senator Specter has said. Let's turn to the Constitution. I know some of my Republican colleagues have argued that the Constitution mandates ``advice and consent'' by a simple majority vote. They may be right. As has been said, the Constitution contains seven provisions calling for a supermajority from the legislature: overriding a veto, convicting on impeachment, expelling members of the House or Senate, ratifying treaties, proposing constitutional amendments, establishing Presidential incapacity, and during the Civil War era, removing the disabilities of rebellious officeholders. But the Constitution is silent as to ``advice and consent.'' The U.S. Supreme Court has observed that a simple majority is the background rule in legislatures. It is therefore understandable that many have concluded that ``advice and consent'' mandates a simple majority for confirmation. Certainly as a democratically-elected body we should always have a strong presumption in favor of rule by simple majority. Only when an alternative supermajority rule is clear should we depart from that democratic tradition. I also appreciate the argument that a filibuster in this context is different than a filibuster on legislation because the appointment and confirmation of judges is a shared responsibility we have with the President. Respect and comity demand that we give proper deference to presidential prerogatives. I certainly agree that filibustering a presidential judicial nominee endangers the traditional respect between the branches of Government, and that as Senators we have a responsibility to protect the relationship between the branches both for present and future Senators and Presidents. So it might be the case that the constitutional text and structure mandate a simple majority, but I must say that I am not 100 percent convinced. It is possible that the Constitution's silence on this question was exactly that: silence. And it is possible that by remaining silent, the Founding Fathers intended to leave the question open for its own interpretation. I think we should allow for that possibility. But my skepticism does not change my conclusion, which is that we should apply a simple-majority requirement for confirmations. Why do I reach this conclusion? Because the weight and precedent of the Senate's longstanding constitutional interpretation of its own ``advice and consent'' obligation compels it. Thus, even if the question was open in 1789, we have 214 years of experience and tradition to tell us what the right interpretation was. And the right interpretation is that the same interpretation that bipartisan majorities of the Senate have forever believed--that only a simple majority is required to confirm a lower court nominee. The most obvious evidence of this tradition is the history itself. No lower court nominee has ever been rejected due to a heightened, 60-vote requirement. To be sure, some Senators have contemplated this change before. Over 30 Democrats tried to filibuster J. Harvie Wilkinson in 1984, Sidney Fitzwater in 1986, and Edward Carnes in 1992. A much smaller group of my fellow Republicans tried to filibuster Marsha Berzon and Richard Paez in 2000. So the issue has been raised before, although never in such a dramatic and pointed fashion as it is today. Let me address for a moment the unique case of Abe Fortas. In 1968, Justice Abe Fortas was nominated for the Chief Justice position. Opposition was roughly divided between the political parties, based significantly upon alleged improper financial dealings and other ethical issues that eventually drove him to resign under threat of impeachment. Unlike the case at hand, there is no record in that case of a Senate majority willing to confirm Mr. Fortas. The single cloture vote failed 45-43. So it cannot be said that the will of the majority was thwarted, because no majority appears to have existed to confirm that nomination. The President withdrew the nomination before we ever found out the answer to that question. So unlike in the present case, the majority was not thwarted by filibuster. But returning to the more recent history, it is important to point out that in every one of those cases, however, cooler heads prevailed. The Senate stepped back from that precipice and said ``No, this we will not do. We will not filibuster judicial nominees.'' Senators such as the ranking member of the Judiciary Committee, Senator Leahy, were so opposed in principle to such a constitutional change that he declared that he would ``object and fight against any filibuster on a judge, whether it is somebody I opposed or supported.'' The Washington Post reports that in 1991 during the Clarence Thomas nomination battle, Senator Leahy declared himself ``totally opposed'' to a filibuster, even as abortion activists urged such a step. And in 2000 a clear majority of Republicans joined with Democrats and invoked cloture on the Berzon and Paez nominations. This is our tradition. We do not block judicial nominees by filibuster. This isn't a Republican constitutional interpretation. It isn't a Democrat constitutional interpretation. It is the Senate's interpretation. And in the Senate, where so much is based upon tradition, sometimes tradition is all we have to enforce constitutional norms. We rely upon our colleagues to say, as Senator Leahy said, that they will fight on principle against the abuse of process regardless of whose particular ox is being gored. That is why I voted for cloture on the Paez nomination, and against confirmation. I refused to upset 214 years of settled constitutional interpretation and change our constitutional norms forever. I was unwilling to risk the damage to the Senate and to the nominations process that would result. Let there be no mistake about it: If a minority of Senators are able to force a change to our 214-year-old constitutional tradition, we do great damage to this body and to the process by which judges are nominated and confirmed. And those changes will be permanent. Now, I am a conservative, and I naturally resist unnecessary tinkering with our constitutional system. But I also understand that constitutional changes do happen, and that they are not always bad. I am an original sponsor of a constitutional amendment, S. 1, in this very Congress. But we have an amendment process for changes to the Constitution. We require 2/3 of each House of Congress, and then \3/4\ of the States. We have a process, and our constitutional stability depends on respecting that process. This constitutional issue is unique, because the issue is probably not justiciable. I do know that a few professors have concluded that a judicial nominee in Mr. Estrada's shoes may have standing to challenge a filibuster, but the last thing we want is for a court to get involved. This is a Senate matter. And as a Senate matter, all we have is our wisdom and respect for a 214-year tradition to guide us. Can traditions change? Of course they can. We should be very wary of upsetting settled traditions because for the most part, traditions exist for a reason, but we should always be open to improvement. However, if we are going to upset 214 years of constitutional interpretation and institutional tradition, shouldn't we require something more than the intransigence of 44 Senators who won't even admit that they are trying to change the constitutional rule? The Founding Fathers recognized that when we change constitutional rules, we should do so based on supermajority votes, not minorities' refusals to votes. As I said a moment ago, when we amend the Constitution, it takes two-thirds of both Houses of Congress. Then if it passes, it cannot be enacted until three-quarters of the States support it. That is not minority rule, but supermajority rule. I might add that even when the Supreme Court changes its constitutional interpretations through its decisions, they have to act by majority vote or new law is not created. Without a majority, there is no change to the constitutional rule. What is happening here is dramatically different. Here, a minority-- not a simple majority, and certainly not a supermajority--seeks to change a settled constitutional rule and overturn 214 years of the Senate's constitutional interpretation. I submit that this fundamental change to our constitutional understanding of the ``advice and consent'' power must not be allowed to take effect. And it certainly should not be undertaken by a minority of Senators for short-term gain. To do so jeopardizes not only the Senate's relationship with the President, who has the constitutional obligation to make judicial nominations, and the Judiciary, which is understaffed and in desperate need for a fair process consistent with our longstanding constitutional norms. It jeopardizes the respect that future Senates will give to our traditional constitutional norms. And it calls into question whether the Senate can be trusted with its stewardship over those norms in the future. Will the Supreme Court ultimately become involved in Senate affairs? I certainly hope not, but I have less confidence today than I did a month ago that no court would involve itself in these matters. And that is a day I do not want to see. So, as I said, this is not about needing more information. The distinguished minority leader made that clear last week. Senator Daschle has enough information. He opposes the nominee. This is about power--the power of the minority to change 214 years of constitutional norms and interpretation. I urge my filibustering colleagues on the other side of the aisle to step back, look at the history, and ask themselves whether they truly believe that it should take 60 votes to confirm a judge. And, equally important, whether they believe that a minority of Senators should be able to wash away the Senate's longstanding traditional understanding of its advice and consent obligations. I submit that our obligation to the Constitution and to the institution of the Senate demands more than what we are seeing today.

Mr. KYL

Mr. KYL. Mr. President, I am proud to be a cosponsor of this much- needed and long-overdue measure. There is no place in a decent Nation for the barbaric practice known as partial-birth abortion. Senator Santorum's measure is the only one the Senate is considering that will put an end to it once and for all. Every abortion ends the life of a tiny boy or girl, but only partial- birth abortion involves the destruction of life at the moment when a child is being brought out of the womb--and he or she is just inches from under the full protection of our laws. Partial-birth abortion blurs the line and does so in such a way as to further erode the sanctity of life. The legislation Senator Santorum has proposed should avoid the constitutional problems that five Supreme Court Justices found in Nebraska's statute in the Stenberg v. Carhart case. Specifically, it addresses the concern that the partial-birth abortion procedure might be necessary to protect the health of the mother by incorporating as findings the view of the American Medical Association and the overwhelming majority of physicians that there is no circumstance where the health of the mother demands this procedure. It also contains a more specific definition of the partial-birth abortion procedure, in response to the Stenberg decision. This revised definition ensures that, once we pass this bill, it will no longer be permissible in America to--and here I quote the language of the bill itself--``deliberately and intentionally vaginally deliver a living fetus until, the entire fetal head is outside the body of the mother and then kill the baby as happens in a typical partial-birth abortion.'' There is no doubt, in contrast, that the substitute measures that the Senate is considering will permit the continued use of this unconscionable procedure. To secure the approval of the radical, pro- abortion lobby, the authors of such measures inevitably draft their so- called ``bans'' in such a way as to permit ``health of the mother'' exceptions that effectively negate the restrictions. Again, the testimony of the mainstream medical community makes it clear that ``health of the mother'' is a red herring in the partial-birth abortion context, and I trust that any measure containing such an ``exception'' will be soundly defeated. It is simply not possible to seek cover politically while substantively protecting the most unscrupulous abortionists. The American people overwhelmingly favor enactment of a real partial-birth abortion ban. Despite the predictable efforts to obscure what is really a very clear issue--how we wish to treat the most vulnerable members of our human family--they will soon have it.

Mr. KYL

Mr. KYL. Mr. President, I rise in strong support of this resolution of ratification for the Treaty Between the United States of America and the Russian Federation on Strategic Offensive Reductions, otherwise known as the Moscow Treaty. This treaty is a masterstroke. It represents, and, I am sure, will be sent as ushering in a wholly new approach to arms control for a wholly new era. The simplicity of this treaty is a marvel. It is extremely brief, indeed just three pages long. It is shorn of the tortured benchmarks, sublimits, arcane definitions and monitoring provisions that weighed down past arms control treaties. This is for a very good reason. The simplicity and brevity of this treaty reflect the simple fact that the US and Russia have moved beyond the enmity of the cold war era. The treaty recognizes this fact. It assumes a degree of trust between nations that are no longer on the precipice of war. Indeed, this treaty is the ultimate confirmation of the fact that arms control does not lead to real peace; rather, real peace--in this case made possible by a democratic transformation in russia--leads to arms control. The old cold war approach to arms control treaties is clearly outmoded. Can anyone truly believe that a 700-page behemoth like the START I treaty is relevant to today's situation? Clearly, such an approach would not reflect today's radically changed political and strategic environment. As such, it would not serve America's real security needs. This treaty does. The most important thing to remember about this treaty is that it was negotiated after the United States independently determined the number of strategic warheads that were needed for our security. The outcome of the negotiations with Russia simply ratified our own prior determination. This is in stark contrast to the old approach to arms control, whereby arms control agreements preceded and ultimately drove our military and strategic decisions. The long lead time for achieving reductions and the lack of sublimits and interim benchmarks in the treaty also serve our interests by preserving much needed flexibility. Looking at the fluid, almost chaotic, situation in the world today, with new threats having arisen in just the past year or so--attacks on our homeland, nuclear weapons developments in North Korea and Iran--one can foresee that circumstances could easily change over the next decade. If circumstances and threats change, so too might our strategic nuclear requirements. Thus, it is only prudent that we not box ourselves in. The drafters of this treaty in the Bush administration were wisely cognizant of that fact. Mr. President, this treaty--and the forward-looking, post-cold war mindset that serves as its basis--deserves our strongest support. I urge my colleagues to approve this resolution of ratification.

Mr. KYL

Mr. KYL. Mr. President, also, for the information of my colleagues, ``Open to All,'' the report of the Secretary of Education's Commission on Opportunity in Athletics can be found at http://ed.gov/pubs/ titleixat30/index.html.