Jon Kyl

Mr. KYL

Mr. KYL. Mr. President, I rise in opposition to S. 2551, legislation making supplemental appropriations for further recovery from and response to terrorist attacks on the United States for the fiscal year ending September 30, 2002, and for other purposes. On March 21, the President submitted to Congress a $27.1 billion request for emergency funding to continue to fight the war on terrorism and respond to the September 11 attacks on our country. It was a prudent request and one that should have been quickly acted upon. The legislation passed on May 24 by the House of Representatives closely tracked the President's request. Unfortunately, the majority in the Senate has chosen a much different course of action and constructed a wasteful amalgamation of pork. The President asked for emergency funding for critical resources to support the war on terrorism and secure the homeland as we recover and rebuild. Yet the product before the Senate includes scores of unneeded items that cost billions of dollars--all classified as an ``emergency.'' The numbers speak for themselves. The Senate Appropriations Committee reported out a bill that spends $3.8 billion more than requested by the President, for a total of over $31 billion. More significantly, by reshuffling priorities, the committee failed to fund $10.4 billion in emergency spending items that the President had requested, and instead decided to fund $14.6 billion in spending items not included in the President's request. Most astounding is the fact that each Federal agency is allocated more money than the President requested except for one--the Department of Defense. I cannot support this bill. Fortunately, it will never be enacted into law. On June 4, the administration sent the Senate a Statement of Administration Policy. Pointedly, the letter says that, ``[i]f the supplemental appropriation bill were presented to the President in its current form, his senior advisors would recommend that he veto the bill.'' Our efforts to improve this legislation have been thwarted by the Majority. Consequently, this legislation should be vetoed by the President if it reaches his desk. It is important to remember the context here: that the Federal Government is facing a potential deficit somewhere in the range of $100 to $150 billion. Spending needs must be met, but they must be met in a responsible manner. This bill truly fails the test of fiscal restraint--with every extra dime, it should be noted, coming out of the Social Security surplus. It is worth mentioning that some of the most vocal supporters of this bill are those very same Senators who routinely lament efforts to return taxpayer dollars to the American people in the form of tax relief. In fact, this bill costs--in spending for this year alone--30 times more than what it would cost to make repeal of the death tax permanent. It is deeply disappointing to me that those Senators who reflexively label tax relief ``fiscally irresponsible'' are the quickest to turn right around and spend it on unnecessary items in the name of an ``emergency.'' The fact is that the great majority of these questionable add-ons are for purposes that have absolutely nothing to do with national defense, homeland security, or antiterrorism efforts--for example, $11 million to the National Oceanic and Atmospheric Administration, NOAA, for economic assistance to New England fishermen and fishing communities; $2 million for the Smithsonian to begin design of an alcohol storage facility for specimens; $50 million for renovating the Ames, IA animal research lab; $45 million for Amtrak; $40 million for monitoring animal health and enhancing pest detection; and $2.5 million for charting the Hawaiian coral reefs. This is just a small sample of an exhaustive list of funding for programs totally unrelated to homeland security. As the administration's SAP accurately states, ``[t]he President's FY 2002 emergency supplemental request was targeted at this year's immediate emergency needs and funding in addition to this request is not warranted at this time.'' The SAP continues by stating that the Senate bill ``includes scores of unneeded items that total billions of dollars--all classified as `emergency.' The bill adds unrequested funds for numerous programs and projects throughout nearly all of the Federal agencies.'' What's more, the bill, by requiring that the President designate as emergency items ``all or none'' of its nondefense funding items, unduly restricts the President's authority. Under the Budget Enforcement Act, the President is supposed to have control over the release of emergency funds added by the Congress to ensure that the funds respond to critical emergency needs. By contravening this long-established budget enforcement mechanism, the Senate would require the President to waste taxpayers' dollars on low-priority, nonemergency items in order to access high priority homeland security and recovery funding. Thus, this legislation prohibits the President from designating anything for defense--such as ammunition and medical stocks--as an emergency, unless unrequested items--like alcohol collections and coral reef charting-- are also designated as emergencies. Expansion of government often occurs during times of war. We have a fundamental responsibility to the American people, however, to use only those additional resources necessary to counter the threat to our country. It is not our place to use the current emergency as a veil for our own special interest initiatives. Unfortunately, the Senate supplemental appropriation funding bill breaks faith with the American people, and accordingly, I vote my conscience. I vote no.

Mr. KYL

Mr. KYL. Mr. President, I note with pleasure that the Harlem Globetrotters basketball team was honored in April by the Arizona chapter of the National Conference for Community and Justice. The world-renowned Harlem Globetrotters, who have made their home in Phoenix since 1995, have given joy to basketball fans in America and around the world for three quarters of a century. In over 20,000 games of basketball, played in some 115 countries, the team's stellar showmen and athletes have been ambassadors for their country and their sport. Especially impressive is the tenacity of owner and former player Mannie Jackson, who took a franchise on the wane and revived it. He and his athletes have given something of value to Arizonans, Americans, and basketball lovers everywhere. Arizona is proud to be the home of the 21st century Globetrotters, recipients of a richly deserved humanitarian award.

Mr. KYL

Mr. KYL. Madam President, I rise to offer support for the Gregg/ Feingold amendment and urge my colleagues to vote in favor of that amendment. Fundamentally, the amendment would make two changes. First, it would extend discretionary spending caps for five years, and second, it would make legislation that fails to pay for itself with appropriate offsets subject to points of order and mandatory enforcement mechanisms. Although I appreciate the assurances that an alternative scheme for budget enforcement will be offered if this amendment is defeated, I remain concerned that the vote on this amendment will provide the only opportunity to ensure real fiscal discipline after the current protections expire later this year. The spending levels provided for in this amendment are more than generous. In fact, I would prefer to see the caps keyed to the spending levels in the President's budget, rather than to those set forth in the budget resolution reported by the Senate Budget Committee in March. But that is not the choice before us. The choice before us is whether there will be any limits at all on spending and whether there will be any enforcement mechanisms to restrain spending. If we head into this year's appropriations process without any such tools, we will set the stage for a monumental dereliction of duty. The sky will be the limit in terms of spending. Any notion of priorities in wartime will be cast aside. All of the rhetoric about ensuring that Social Security Trust Fund surplus revenues be held sacrosanct will be rendered hollow. This amendment provides a means, however imperfect, of keeping us focused on trade-offs and priorities. Accordingly, I urge the waiver of the Budget Act and the adoption of the amendment.

Mr. KYL

Mr. KYL. Mr. President, I rise today in support of final passage of this trade legislation. But I do so with the understanding and the hope that a number of items in the bill now before us will, in the coming weeks, be adequately addressed in conference with the House. I therefore voice my support, but not unconditionally. The first element of this legislation, which frankly should have been passed separately earlier this year on the basis of its nearly unanimous support, is the extension and expansion of the Andean Trade Preference Act (ATPA). The Andean Trade Preference Act was conceived a decade ago as part of a mutual effort between the United States and the Andean countries to strengthen our economies, which in turn, would help us in the war against drugs. In 10 years of existence, ATPA has become an essential tool for the commercial interchange between the United States and the Andean region. Approximately 140,000 new jobs have been created in the Andean region over this time period, and the steady flow of investment has helped to double two way trade between the United States and the region. Furthermore, great strides have been made in the war against drugs; important drug cartels were disbanded, and hundreds of cocaine labs were destroyed. Today, the Andean region faces a very critical moment. ATPA is essential to guarantee sustainability of the achievements we have made over the last decade, and to encourage further progress toward the shared goal of negotiating the Free Trade Area of the Americas (FTAA). I am very pleased that the Senate will act, albeit late, to extend this critical trade act. Before I dwell on the concerns I have with trade-promotion authority portion of this bill, let me first speak to its strengths. Since trade- promotion authority lapsed in 1994, America has stood on the sidelines while other countries have brokered trade agreements that benefit their workers, their businesses, and their economies. Soon after taking office, President Bush called on Congress to grant him trade-promotion authority to reassert America's leadership in promoting U.S. goods and the expertise of our workforce to more markets. The need for expanded markets dramatically intensified after our nation's economy underwent a decline last March, and the events of September 11th forced so many Americans out of their jobs. Trade-promotion authority provides the President with the flexibility he needs to negotiate strong international trade agreements on behalf of U.S. workers and farmers while maintaining Congress' constitutional role over U.S. trade policy. It represents a thoughtful approach to addressing the complex relationship between international trade, worker rights, and the environment without undermining the fundamental purpose and proven effectiveness of trade-promotion authority procedures. The bill before us will help us to achieve this goal. It not only sends a message that we are serious about the principle of open markets, but it will be a powerful example, to nations around the world, of what trade- promotion authority can deliver: economic prosperity on a grand scale. Specifically, it gives the administration the authority to negotiate and bring back trade agreements to Congress that will reduce trade barriers, especially those based on unsound science, relating to the manufacturing, services, agriculture, intellectual property, investment, and e-commerce industries. It helps to eliminate subsidies that decrease market opportunities for U.S. agriculture, and unfairly distort markets to the detriment of the United States. It preserves U.S. sovereignty while enabling new trade agreements that will create solid economic growth, higher-paying jobs for hard-working Americans, improved efficiency and innovation, and increased availability of attractively priced products in the U.S. market. The Office of the U.S. Trade Representatives is similarly directed to vigorously enforce U.S. trade-remedy laws and avoid agreements which lessen the effectiveness of U.S. antidumping or countervailing duty laws. This bill contains negotiating objectives on investment to increase transparency for the dispute settlement process, calling for standards for expropriation and compensation that are consistent with United States legal principles and practice in an effort to eliminate frivolous claims. Perhaps most importantly, it expands and improves consultations between the administration and Congress, before, during, and after trade negotiations and in the development of an implementing bill. Also included in this legislation is language I authored to suspend for a period of five years the 4.9 percent tariff on steam generators for nuclear facilities. These generators are not manufactured in the United States. Tariffs should never be imposed on products that are not domestically manufactured, especially those products that are critical for maintaining the U.S. domestic supply of energy. This tariff amounts to a ``tax'' of approximately $1.5 million per generator on consumers of electricity in those states where utilities will have to import from overseas to meet the immediate need to replace aging steam generators, which cost would be passed on to ratepayers. In the case of the Palo Verde, Arizona plant--the nation's largest nuclear power facility in terms of production--the additional cost, due to the tariff, is over $8.2 million for the six generators that it will need to import. Failure to suspend this tariff will unfairly result in higher energy prices for consumers, as the utility companies will almost certainly pass on this tax to its customers. This bill also includes the Kyl Customs Border Security Act amendment, added unanimously by the Senate Finance Committee in December 2001, which will provide significant authority to help facilitate legitimate trade, reduce illegal drug and contraband trafficking and eliminate threats of terrorism. The Kyl amendment authorizes funding to increase the very tools by which the Customs Service facilities cross-border trade, and fights terrorism and narcotics trafficking. Under the amendments, Customs on the Southwest border will receive funding for high-technology equipment, including container inspection equipment, automated targeting systems and surveillance systems, all of which will help to stop terrorism and illegal drug trafficking. The northern border is also authorized to receive similar valuable equipment, as are out Gulf Coast seaports. The Kyl amendment also mandates that cargo and passenger manifests be provided in advance to Customs, whether such cargo or passengers enter by land, air or sea. I have learned that this provision is Commissioner Bonner's number one anti-terrorism legislative priority. Advanced electronic manifest data delivered to Customs is absolutely necessary for the agency to identify individuals and cargo that should not enter the United States. The amendment also authorizes funding for personnel, technology and for Customs' new computer system, ACE, Automated Commercial Environment, to bring the agency's tracking of business and their goods entering the country into the 21st century. Under the Kyl amendment, the U.S. Customs Service itself, for the first time in over a decade, will also be reauthorized. As our nation's oldest law enforcement agency, this is particularly important. Finally, the Kyl amendment will close longstanding outbound smuggling threats by clarifying that the Customs Service is authorized to search outbound international mail. I strongly believe that this section of the amendment is integral to our efforts to combat money laundering, technology export violations, and terrorist funding crimes. Currently, inbound mail, and most everything else leaving the country--cargo containers, luggage, boxes, individual persons--and stamped mail on a person--is searchable by the Customs Service. The Customs Service is only precluded from searching outbound mail. Smugglers may send drugs, finance terrorism, or send explosives on aircraft by simply mailing their contraband or money out of the country. My amendment, added to the trade adjustment assistance bill during that bill's consideration in the Finance Committee, would authorize the search of all first class mail by Customs, as long as the Customs Service has reasonable suspicion about such mail. The amendment also clarifies, through codification, that all mail besides that considered first-class--referred to as ``mail not sealed against inspection--can be searched without reasonable suspicion. Under this provision, none of the mail that is allowed to be searched is allowed to be read without a warrant. During floor consideration of this trade package, Senator Jon Corzine raised objections to the outbound mail provision. Although I fully support the original outbound mail provision, and will support such provision in conference, I appreciate the efforts of Senator Corzine and his staff to work with me and my staff toward resolution in this particular debate. Substitute language has been accepted by the Senate, to replace my original language, that would exempt first-class mail with a weight of under 16 ounces from the reasonable search authority that we are attempting to authorize for the Customs Service. In addition, under this new language, a requirement has been placed requiring the State Department to issue a report about whether or not the ``in-transit'' mail authority provision, which will allow appropriate searches of international mail destined for a third country but which travels through the United States on its way, is consistent with international law. Less than three weeks ago the Congress passed, and the President signed into law, the Enhanced Border Security and Visa Entry Reform Act, which will provide all areas of the Justice Department and the State Department with personnel and resources to fight the war on terrorism. In that bill, an interoperable data sharing system will aid all federal law enforcement to better track and identify would-be terrorists. Because of jurisdictional concerns about customs, that vitally important bill does not include resources for the Customs Service. That is why it is so important that this bill include such funding. The Kyl Customs Border Security Act does so and is an integral part of my decision to support the overall package. Many have spoken about how trade-promotion authority will help the United States. I want to speak for a moment about how trade-promotion authority will help my home state of Arizona specifically. This bill will open new markets worldwide to Arizona goods and services. That, in turn, will boost local communities' economies, provide job security for the hundreds of thousands of Arizonans whose work depends on exports-- the backbone of the Arizona economy. One out of every five manufacturing job in Arizona is tied to exports. An estimated 70,400 Arizona jobs support the manufactured- goods-for-export industry directly. Wages of workers in jobs supported by exports are 13 to 18 percent higher than the national average. Roughly 5,060 Arizona citizens hold jobs related to agriculture exports. Arizona exported $333 million in agriculture in 1999. And last year, Arizona sold more than $10 billion worth of exports to nearly 200 foreign markets, and produced and exported more than $9.4 billion worth of manufactured items such as computers, electronics, machinery, transportation equipment, fabricated metal products and appliances. Arizona relies on its exports with export sales of nearly $2,000 for every state resident. Clearly, trade-promotion authority only brings more good news to Arizona's entrepreneurs and small businesses. But as I mentioned above, there is much that needs to be done before we can deliver this good news. Let me briefly elaborate on my specific concerns that will need to be addressed in conference. First, it is imperative that we remove the so-called ``Dayton-Craig'' language that would permit the raising of a point of order if the implementing legislation negotiated under trade-promotion authority amends U.S. trade remedies law, however technical or even beneficial the change. This language, if kept in the final legislation, will unravel successful trade negotiations, and it is wholly unnecessary to add it on top of language already included and explicitly states in the bill, i.e., the directive to ``preserve the ability of the United States to enforce rigorously its trade laws'' and ``avoid agreements that lessen the effectiveness of domestic and international disciplines on unfair trade.'' I am also disappointed by the multitude and details of the trade adjustment assistance (TAA) provisions in this legislation. I firmly believe that, rather than enacting a whole host of new entitlements, the best assistance we can provide to unemployed (or displaced) workers is enhanced free trade, which will in turn provide greater job opportunities. However, this legislation has become burdened with a variety of new and expended entitlements that, while well-intentioned, will only serve to distort the free-market and delay the inevitable benefits of freer trade for our citizens. One of thee provisions is a ``wage insurance'' entitlement, which would provide up to a $5,000 subsidy for older TAA-certified workers who are subsequently employed at lower-paying jobs. Aside from a complete lack of data supporting the efficacy of such a proposal, this provision would create significant disincentives for workers to forgo needed training and/or a more intensive job search. Instead, it will likely result in workers choosing lower paying and perhaps lower- skilled jobs with the taxpayers liable for the difference. Another provision in this legislation provides an advanceable, refundable health insurance tax credit to TAA-certified workers. The credit is set at an arbitrarily high percentage of the premiums' cost-- 70 percent--and can only be used to subsidize the cost of company-based COBRA or pooled health insurance policies. Additionally, it can not be used for the purchase of individual market policies, which might better suit the workers' health needs at a reduced cost. I believe that it is unfair for American taxpayers, many of whom may not have health insurance themselves, to provide such a generous health insurance subsidy. Despite the serious concerns I have expressed about these provisions, I intend to vote in favor of this overall legislation at this time. But, as I mentioned earlier, this is a qualified vote. Unless substantial improvement is made to this legislation during conference, I will not vote for the bill when it returns. With few exceptions, I believe that the House-passed language on TPA, TAA and ATPA is far superior to the Senate-passed language. And there are some specific items that must be addressed in a House-Senate conference before I can vote in favor of a final bill. First, the conference report must maintain the 2002-2006 suspension of 4.9 percent tariff on steam generators for nuclear power facilities. Second, the conference report must remove the so-called ``Dayton- Craig'' language. Third, it must either eliminate or substantially improve the language creating a ``wage insurance'' program for TAA-certified workers age 50 and older. Fourth, the conference report must also make significant improvements to the health insurance tax credit for TAA-certified workers. I look forward to working with my colleagues on addressing these concerns, and I hope to be able to vote for final passage of this important legislation. As a matter of principle on the one hand, and of sound economic policy on the other, I believe that we must grant the President trade- promotion authority. And, as has been stated by many of my colleagues, we must be careful to ensure that the final language of the bill preserves this authority. So while I believe that this bipartisan effort represents a strong vote in favor of trade-promotion authority, I caution that there is still work to be done before it can be sent to the White House.

Mr. KYL

Mr. KYL. Mr. President, earlier this month, more than 1,200 students from across the United States were in Washington, D.C. to compete in the national finals of the ``We the People . . . The Citizen and the Constitution'' program. This program was designed specifically to educate young people about the Constitution and the Bill of Rights, and this year's event was, yet again, testament to its success. The 3-day national competition is modeled after hearings in the United States Congress. The hearings consist of oral presentations by high school students before a panel of adult judges on constitutional topics. The students' testimony is followed by a period of questioning by the judges who probe their depth of understanding and ability to apply their constitutional knowledge. I am proud to announce that the class from Dobson High School from Mesa, AZ was selected as the national winner of this year's competition. These young scholars worked diligently to reach the national finals and I commend them on their fine accomplishment. Through their experience, they have gained a deep knowledge and understanding of the fundamental principles and values of our constitutional democracy, and hopefully, they have also helped to encourage other young students around the country to follow in their footsteps. I would like to take a moment to mention the names of those students who competed for Dobson High: Dean Anderson, Nikki Best, Diana Capozzi, Adam Cronenberg, Adam Ekbom, Ashley Emmons, Tammy Ho, Candice Howden, Chi-Chi Hsieh, Katherine Jennings, Amanda Keim, Brianne Kiley, Jimmy Martinez, Jr., Jordan Pendergrass, Ashley Rogers, Jake Seybert, Hiral Shah, Ashley Wearly, and Jeff Yost. I would also like to acknowledge their teacher, Abby Dupke, the district coordinator, Kathleen Williams, and the state coordinator, Debbie Shayo. Congratulations. It is inspiring to see these young people advocate the fundamental principles of our government. These are ideas that identify us as a people and bind us together as a nation. It is important for our next generation to understand these values which we hold as standards, especially in our endeavor to preserve the promise of our constitutional democracy. All of the students who participated in this program worked extremely hard, and they are all to be commended for their research and preparation. I wish all these budding constitutional experts the best of luck in their futures. They represent tomorrow's leaders of our Nation.

Mr. KYL

Mr. KYL. Mr. President, I rise in strong support of H.R. 3167, the Freedom Consolidation Act of 2002. The title of this bill says it all, our goal here today, and our goal when we enlarge NATO this November, is to consolidate the gains that freedom has made in Europe since 1989. Thirteen years ago, in a series of wonderful evolutions and revolutions, the people of eastern Europe threw off the shackles of communism and sent the Warsaw Pact to the dustbin of history. Since then, the many nations of eastern and central Europe, some of them brand new, have striven mightily to establish democratic institutions and develop market-based economies. This is nothing short of a Herculean task, given the magnitude of the problems that beset communist systems as they were in their terminal phase. The people carrying out this difficult and historic transformation need and deserve all the support we can give them. One of the ways we can provide that support is to encourage the further enlargement of NATO. Membership in NATO will ease the strain on these newly free countries and assist in their transformation to market democracies. This is true for several reasons. First, membership in NATO, with its bedrock security commitment contained in Article V, will promote a stable environment in which these countries can pursue reforms. Second, membership in NATO will foster an ever greater flow of information and ideas between the U.S., western Europe and these new democracies. Third, membership in NATO will require these nations to maintain democratic systems and uphold the rule of law, thus giving them the incentive to continually deepen their reform process. These benefits of NATO enlargement, the consolidation of freedom, the encouragement of the reform process in former communist countries, and the expansion of the zone of stability and peace in Europe, are all very much in the U.S. interest. I think that recognition of these benefits is why there has been such strong congressional support for NATO enlargement dating back to at least 1994. By reaffirming past statements of support for enlargement by Congress, by Presidents Bush and Clinton and by NATO itself, and by authorizing assistance to seven aspirant countries, this bill continues that tradition. At Munich and Yalta, it was decided that, as Neville Chamberlain termed them, ``small, far-away'' countries could be sacrificed. The ghosts of those two tragic episodes have haunted Europe for over 60 years. A further round of NATO enlargement will help exorcize those ghosts. Therefore, as NATO prepares for its Prague Summit in November, I hope it will heed the words of President Bush, who stated last year that ``as we plan to enlarge NATO, . . . we should not calculate how little we can get away with, but how much we can do to advance the cause of freedom.'' In other words, we should seek to offer NATO membership to as many new members as possible. That being said, NATO must of course be judicious in the selection process. NATO is not a club, it's an alliance. And enlargement is not a free pass to security for new members. NATO membership demands commitment from and places obligations upon those new members. One of those obligations is the maintenance of adequate defense budgets. New members must be able to offer equipment, forces and capabilities that actually make a net contribution to NATO. As has been much discussed of late, NATO already suffers from the so-called capabilities gap. That is, as we have learned from the campaigns in the Balkans and Afghanistan, there is a large and growing gap between the military capabilities of the United States and most of its NATO allies. Although the United States has reduced defense spending over the past decade or so, the cuts in Europe have been even more severe. This is reflected in the fact that while we devote over 3 percent of our GDP to defense, the European average is now below 2 percent. This simple fact goes a long way toward explaining why NATO, despite its very helpful and much appreciated invocation of Article V after September 11, has not participated in the campaign in Afghanistan. NATO should not exacerbate the capabilities gap by offering membership to countries that are not serious about actually contributing to a military alliance. Still, NATO must seize this moment. This is a historic opportunity to make Europe whole again after decades of war, division, and tyranny. That is why I support this bill and hope it will pass overwhelmingly.

Mr. KYL

Mr. KYL. In that case, Mr. President, I learned a long time ago in arguing before the judge when he says, I am inclined to rule for you, you say, thank you, Your Honor. Could we do that by unanimous consent at this point and then move on to other business?

Mr. KYL. Mr. President, I will explain the amendment and discuss the reasons for it. I hope my colleagues will agree that this is an amendment that can be adopted. We don't even have to have a rollcall vote, unless someone asks for it. I think it is fairly straightforward. The amendment has to do with Custom user fees. Today, Custom user fees come in two separate categories, which I will discuss in a moment. About 300 million of them are statutorily designated to go to a particular set of accounts in the Customs Service. For example, it pays overtime for Customs Service personnel. There is about $1 billion in Custom users fees that takes a somewhat more circuitous route that goes into the general fund--generally money which the Appropriations Committee defines as funds for funding various functions of the Customs Service, hence the name ``user fee.'' In fact, I will digress for a moment. We have taxes and we have user fees by which we raise revenue. User fees are generally targeted toward people who use a particular service of the Government. So we generally try to spend that money on the things for which they require us to use the money. An example is, if you use the national forest, you are beginning to find that you have to pay a little fee to go camping there. That is because we are kind of hard on the forests when we camp there, and somebody has to clean up the mess we leave behind, and so we pay a little fee for that. It is more fair for those of us who may take our kids camping in the forest to pay for the user fee than it is to charge the taxpayers generally. The same thing is true with Customs. We charge a fee for people who have their ships and their trucks and other things inspected by the Customs Service, and some bring goods into the United States of America. I am oversimplifying, but that is the general idea. So we take those same moneys and put them back into the inspectors, into the equipment that is used to inspect their train, or boat, or truck, for example, so that instead of waiting at the border for 2 hours, maybe we can get them through in an hour or less, hopefully, so we can expedite commerce at our borders, and for other purposes. That is the concept of a user fee. They pay to have us do this. We take the money and apply it to that. Now, what the underlying bill did--and I must say that as a member of the Finance Committee, I was unaware of this and I objected to it being done in an earlier bill, and I was distressed to learn it had been done in this bill--they extended the Custom user fees--that part is OK--and the net result of that is to contend that the expenses of the TAA portion--the trade adjustment assistance portion--of these free trade bills is paid for by revenue generated by extending the Custom user fees. Well, that is not true, and it should not be true. So what my amendment says is, no, Custom user fees are used for Customs. Here is what it says: Notwithstanding any other provision of law, any revenue generated from custom user fees . . . may be used only to fund the operations of the United States Customs Service. That is the idea. That would be a good thing, especially at this time in fighting our war on terror. We are imposing upon the Customs Service more and more responsibilities for doing a really good job of checking all of the modes of conveyance, and containers, and other kinds of shipments into the country. We read in the newspaper a couple days ago where 25 possible terrorists from Arab countries have been smuggled into this country in the holds of ships. I think the Customs Service can examine only 1 percent of the cargo coming in on ships. They cannot examine every part of every hold of a ship coming into this country, let alone every truck, train, or other mode of conveyance that brings goods into the United States. Yet we are asking them to be sure that nobody smuggles in contraband, drugs, nuclear bombs, biological weapons, chemical weapons, or illegal aliens who could be terrorists. We are asking a lot of the Customs Service, and we are not giving them enough money to do the job, which is why they have asked for more money. And most of us, I believe, are willing to provide more money for the Customs Service to do what we are asking them to do, not just for their general work but now enhanced by the requirements of the war on terror. At the same time we are imposing that additional burden on them, somebody had the bright idea to pay for the unrelated parts of this bill having to do with wage subsidies, health benefits, and so on, with Customs user fees. That is not right, and it is actually not even necessary. Why is it being done? Because somebody had the idea they could avoid a point of order being raised against the underlying bill so that instead of having to get 60 votes to pass the bill, 50 votes, the usual, would suffice. The fact is there is already a different kind of point of order that lies against the bill, so this serves no purpose. That is why I think even those who wish to say they have a way of paying for the bill by using these Customs fees could easily agree that there is no point in it, there is no purpose in it, and, therefore, rather than muddling up the law, rather than taking money from Customs when we are trying to fight the war on terror, they would be willing to adopt our amendment and not try to pay for the bill with Customs user fees. This is a technique and, as a matter of fact, it even has a name in the Senate, and it is called a ``pay-for.'' That is pretty inelegant. The idea is when you have a program that is going to cost, say, $10 billion or $11 billion, as this is, it is going to be hard to get it passed unless we show we can pay for it. So we raise taxes $10 billion or $11 billion or find some other source of revenue that will cover that expense. In this case, the pay-for is the Customs user fees. As I said, that is not necessary because nobody is saying you have to find a way to pay for this. We are assuming that the general revenues of the United States will pay for the expenses of the bill. I am assuming that. I do not have any objection to the general revenues of the United States paying for the cost for this bill. They are too high, in my view. I wish we did not have all these costs, but to the extent there are costs, the taxpayers of the United States will pay for them through general revenues. We do not have to have a pay-for. To the extent it is being used to get around a parliamentary point of order, it does not need to either because there is a different point of order that lies against the bill. Instead of compromising our Customs Service, I plead with my colleagues in the name of the war on terror, in the name of good sense, let's adopt this amendment and eliminate the concept of the pay-for in this legislation. I have explained this in a more simplified form than it really is. I believe I have been accurate in what I have said. Actually, there are two specific kinds of Customs user fees, to complicate this just a little bit. What it also illustrates is that for about $300 million of these user fees, we cannot do what this bill purports to do and pay for this bill with these fees. This is an 8-year extension of two different Customs fees: One, the so-called COBRA user fees which raise approximately $300 million per year; second, the merchandise processing fee. You can see what that is about; it raises approximately $1 billion per year. CBO estimates that the user fee section would increase revenue by about $11.54 billion through fiscal year 2011. The problem is the COBRA user fees already by statute are designated for use for a variety of other purposes. This is found in title 19, section 58, subsection (f) dealing with Customs duties, titled ``Disposition of Fees.'' I will read a little bit of it: There is established in the general fund of the Treasury a separate account which will be known as the Customs User Fee Account. It goes on to talk about how these fees will be distributed: Except as otherwise provided in this subsection, all fees in the Customs User Fee Account shall be used to the extent to pay the costs incurred by the United States Customs Service in conducting commercial operations, including, but not limited to, all costs associated with commercial passenger, vessel, vehicle, aircraft, and cargo processing. And so on. Then there is a list specifically under section 3(a) of how these COBRA fees are used. The one I specifically want to point out is paying overtime compensation and another is paying premium pay, and there are others--foreign language proficiency awards, and so on. This is important because earlier this year in the Terrorism Subcommittee of the Judiciary Committee, we had testimony by one of the officials of the Customs Service in which it was pointed out why these fees are so important. Again, these fees are already designated by statute to go for these specific purposes. We cannot use them again to pay for what is in this bill. Out West, we have a saying: You can only sell your pony once. In effect, somebody is trying to sell this pony twice. It has already been sold: $300 million goes to these specific items in Customs. You cannot take that same money and apply it to fund the underlying expenses of this bill. Again, it is not necessary. Nobody is making you do it. So do not try to sell this pony twice. You cannot do it. Moreover, it is not good policy. According to testimony on February 26 of this year--the witness was Bonni Tischler, Acting Commissioner of the Office of Field Operations of the Customs Service. She gave some very valuable testimony. I will quote some of her testimony. I had said there is a lot to do with not only checking out the commercial activities that go on that we ask Customs to do, but to begin to deal better with terrorism. I asked if she had suggestions and, in particular, what the effect might be of taking Customs user fees away from the Customs Service in her ability to perform this task. She said: My personal opinion is it would severely hamper us. Ms. Tischler identified the numbers, and she was just about exactly on target with respect to the numbers, but regarding the merchandise processing fees, my question was: . . . if you were not to have the benefit of that in your appropriations, I presume it would be fairly devastating, would it not? Her response is: It would absolutely be devastating. I think our total budget is closing in on $3 billion thanks to Congress and the administration. So to take that much out, if it were as the offset, would be truly devastating. I had put this in context and they did, too. This merchandise processing fee is not statutorily designated as the so-called COBRA fee is. This is not a matter of selling the same pony twice legislatively, but it is from a policy standpoint, since as I pointed out in my question and as she pointed out in her answer and as we can document, as a practical matter this is what the Appropriations Committee uses to define what it has available to fund the Customs Service. That is the way it ought to be policy-wise anyway; otherwise, we should just collect taxes from the American people. Since we are collecting a user fee from the people who use the system, the money they pay in ought to go back to help them in how they are using the system. The commercial people who have trucks that go back and forth across the border all day and pay a fee ought to know the fee they are paying is going to pay the people who are checking their trucks and getting them through the line as quickly as possible. That is what a user fee is all about. As a matter of policy, we should not be assuming that in order to have some way of paying for the expenses of this legislation that money is now available for that purpose. Some of my colleagues might say: This is all a ruse; this is all a fiction anyway. Indeed, to some extent, it is a fiction, which goes to show why this is not necessary. In effect, we are robbing Peter to pay Paul. We are saying: We have to find a way to fund the legislation that is before us, the trade assistance legislation. So instead of raising taxes, we are going to extend these user fees and, voila, we now have it paid for. As I pointed out, $300 million of it is not paid for because that pony has already been sold, but as to the remaining $1 billion, it should not be that we consider this the appropriate fund to pay for the expenses of the bill because it is user fees paid by people who are using the system. If you say, But it is all the same pot of money; money is fungible, so we will say we are funding this trade adjustment assistance out of the user fees, but then we will have taxes to pay for that, to pay for Customs, what we are really doing is acknowledging that we are going to have to find the money in the general budget; in other words, taxes are going to have to be found to pay for this. So it does not matter whether you acknowledge upfront that it is going to require $10 billion or $11 billion in taxes to pay for this bill or you say we are going to get the money from Customs and then we are going to have to find $10 billion or $11 billion in taxes to pay for Customs. It is the same deal. So why go through this fiction? If, as I said, it is to avoid a point of order on the legislation, I say, A, that is wrong; B, it is bad policy; but, C, it is not necessary. This was tried earlier with respect to the Patients' Bill of Rights, and I will quote briefly from a memorandum from the Acting Commissioner for James Sloan, the acting Under Secretary for Enforcement: The COBRA fees collected by Customs are used both to reimburse Customs appropriation for certain costs, such as overtime compensation, and to offset a portion of the Customs Service salaries and expense appropriation. As an example our FY 2001 collections will offset approximately $1 billion or almost 50 percent of Customs appropriation this year. Authorizing a COBRA extension to offset costs for something other than the Customs Service could negatively impact our available funding. Additionally, the Merchandise Processing Fee authorized in the COBRA is a fee that is paid by importers for the processing of merchandise by the Customs Service. Directing the funds collected from this fee for something other than Customs operations could pose GATT interpretation issues. While Customs supports the extension of the COBRA fees, we also acknowledge that changes are warranted with the manner in which we collect those fees. We intend to review this in the near term. In other words, when this issue came up in another context and Customs was asked about it officially as opposed to my unofficial question in the hearing we held earlier this year, the answer was the same. This would be harmful to the Customs Service, and this was prior to September 11, 2001. This was June 20, 2001. Now that we have imposed this additional burden on the U.S. Customs Service to help us fight the war on terror, it would be unthinkable for us, even as a ruse, to say we are going to use Customs fees to pay for the wage insurance or health benefits under this tariff legislation. Let's be truthful about it and say it is going to cost $10 billion or $11 billion, we will find that money out of general revenues somehow or another, and that is the cost of the program. That would be an honest approach. Let's not try to suggest it is already being paid for because we found the money in the Customs Service, because unless we are not going to fund the Customs Service, we are going to have to offset that loss by finding $10 billion or $11 billion then in the rest of the budget to pay for the Customs Service obligations. I do not know what could be more clear, but I will just make this point and then see if any of my colleagues would like to ask any questions about this, or make any comments, because I really do not want to oversell the proposition. Perhaps this amendment could just be taken and we could move on. I do not mean to force a vote on it if people are willing to take it, but I will begin to discuss this in very thorough terms, with a lot of information that deals primarily with how it would adversely impact the war on terror, if there is going to be opposition to this amendment, if there is going to be an insistence that somehow or another we keep the Customs user fee as a pay-for, and object to my amendment which simply says Customs user fees should go to pay Customs expenses. If we are not willing to accept the amendment, then get prepared for a lengthy discussion about the impact of the war on terror. I am prepared to engage in that, but it is not going to be necessary, as I say, if there is an agreement on the other side that we are able to take the amendment. I know it is time to go to the vote on the Dodd amendment, or there will be a brief discussion beforehand, but might I inquire of the distinguished chairman of the Finance Committee what the process would be after the Dodd amendment? Would we go back to the discussion of this amendment or could there be a discussion about whether to take it and move on to another amendment? What would the pleasure of the chairman be at that point?

Mr. KYL. Mr. President, I ask unanimous consent that Senator Nickles be added as a cosponsor to this amendment.

Mr. KYL. Mr. President, I send an amendment, No. 3429 to amendment No. 3401, to the desk.

Mr. KYL

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

Mr. KYL

Mr. KYL. Madam President, I would like to respond to some of the comments which my colleague, the Senator from Connecticut, just made, if he has a moment to remain. I caught some of what he said, and I think I caught the gist of what he said. I want to be very clear about something. I am a member of the Senate Select Committee on Intelligence, and therefore I might be perceived to have a bit of a conflict of interest since, as the Senator from Connecticut noted, we have an ongoing investigation. The investigation has been authorized by the House and Senate committees. We are in the middle of that investigation now and plan to have a report ready around the end of the year as to the full panoply of circumstances and events surrounding the tragedy of September 11, with recommendations for what should be done in the future to ensure, to the extent possible, that event not be repeated, or that we be able to prevent it if it is at all possible. I am troubled by a couple of the comments the Senator made, and I wanted him to hear this and respond, if he would like. Here is what troubles me: I was accosted by numerous members of the media this morning breathlessly asking me, as a member of the Intelligence Committee, what I thought about the fact that the President had been briefed that terrorists, al-Qaida terrorists, were going to hijack airplanes and didn't this require us to immediately begin some kind of investigation, fill in the blanks. Some of them sounded a little bit like what the Senator from Connecticut is suggesting. That would be the wrong thing to do, in my view, and there are about three reasons why. First of all, let us be clear: The President was not briefed in some emergency situation that he should expect al-Qaida terrorists or any other terrorists to hijack an airplane and fly it into the World Trade Center. Nothing like that happened. So we should be very careful before we begin calling for new mechanisms for investigating the September 11 events when we already have a good investigation underway based upon information such as that. It is incorrect information. I know the Senator from Connecticut is a very thoughtful person and would never predicate his call for this activity on that kind of information. Let me hasten to say I know that is not what he is saying. Part of the impetus for that, and I am afraid part of the emotional reaction, could be to find a home in a suggestion like this of the Senator from Connecticut. To clarify the record--I think the administration will clarify it in an appropriate way at some time soon--let me put it this way: Every morning, the President of the United States receives a briefing from the intelligence community. As the President just advised some Members, if he had been briefed about a threat that anybody thought was specific and credible and we could do anything about, does anybody doubt that he wouldn't have reacted in the strongest possible way? I know the Senator from Connecticut joins me, and everybody else, in answering that question: Of course he would have reacted. That should give the first clue about what was actually done. Each morning he receives a briefing. It should come as no surprise that during one of those briefings when the subject is terrorists, al-Qaida was one of the terrorist groups that was mentioned at that time. Terrorists have been hijacking airplanes for over 40 years. It is not exactly big, breathless news that this could happen, hypothetically. That is a far cry from someone suggesting there is credible, specific information about a particular threat of hijacking. We all need to take a deep breath. I particularly suggest these remarks apply to our friends in the media. Calm down a minute. Don't jump to any conclusions about what the President was told. Don't take from that the intelligence community somehow messed up by not following through or taking sufficiently seriously some kind of threat. That is not the way it happened. The point the Senator from Connecticut makes, with which I totally agree, is there is a lot of information out there that we need to put together to tell the story about what did happen and determine what kinds of changes, if any, we need to make in the future. My only concern about his suggestion is two things: One, as the media leaks themselves demonstrate, if it comes out in little dribbles and drabs of incomplete bits of information, it is likely to be counterproductive and to certainly delay the process of putting it all together in a coherent way to present a set of facts to the American people on which conclusions can be based. Since so much of this has to be done in a classified setting, the place for it is the Intelligence Committee. It will be difficult to even have public hearings to discuss a lot of this while we are right in the middle of, one, the war on terror and, two, prosecutions in which the FBI is engaged. Second, it is important the investigation already underway, which is already putting demands on the time of the Justice Department and the CIA, not be further complicated by other investigations which would put further demands upon these peoples' time at the very time they are preparing for these prosecutions and conducting the war on terror. Those are thoughts I have with respect to the Senator's suggestion. I will appreciate the opportunity to visit with him more about them. I wanted the opportunity to express those concerns.

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

Mr. KYL

Mr. KYL. I suggest my colleagues support the amendment of the Senator from New Hampshire.

Mr. KYL. Mr. President, I urge my colleagues to support the amendment of the Senator from New Hampshire to strike this wage subsidy provision from the bill. In my view, if it stays in the bill, it could well sink it. It would be difficult for me to support the bill on final passage if this provision is in it, notwithstanding my support for the bill. I admire the Senator from Texas because he was part of a group that negotiated portions of this bill that would be on the floor before us. He feels committed to supporting the version that was negotiated which includes this provision. Of course, he should do that. I think he also makes a good point to suggest that others who may be supporting other amendments need to keep their commitment in mind. But the statement here reminds me a little bit of the old politician that said that it is important for us to always stand on principle and, in certain situations, to even be able to rise above principle. That is what is involved here unfortunately. The principle is to have a free market with labor and capital, people freely able to be hired. And it is possible sometimes through government decisions that people lose their jobs, through competition that people lose jobs. It is even possible that if there is a tariff reduced as a result of a free trade agreement, that could result in somebody losing their jobs. People lose jobs for all kinds of reasons. The question, though, is whether or not we should make an exception and provide that certain people who work have rights more than others and are entitled to certain kinds of subsidy benefits in their wages as a result. If we decide that is a good idea, how are we going to explain to other workers that we are leaving them out in the cold? The reality is that this is a foot in the door that will create an argument for everybody, regardless of their circumstance, to have a wage subsidy like certain other countries in the world of GATT, competitors of ours who cannot compete as well because they have these kinds of government subsidy programs for wages. In fact, it is a transfer of payment from hard-working Americans, middle income Americans, to those who are more wealthy. It is blatant discrimination against hard-working Americans, an invitation to fraud and abuse. As I said, it is a very dangerous step toward Government control. It is theoretically capped, but we know the initial expenses will be a drop in the bucket compared to what it will cost over the years. Other constituencies will soon demand their own form of wage insurance, whether subsidies or other wage controls, and I think it would be virtually impossible to say no to them once we have established the principle. That is what I am talking about here-- principle. There is no limitation in this program based upon necessity. It is available to dislocated workers who simply choose to quit the rat race and take an easier job. There is no training requirement, and that was always a component of the program that has been supported here in the past by the Senate. The Trade Adjustment Act has always included a training component to train displaced workers for new and better jobs. But this wage subsidy program circumvents that and allows certain workers essentially to opt out. There is no consideration in this provision of whether there are suitable jobs available in similar circumstances. The older displaced worker is free to take the job, earn an entitlement, regardless of whether equivalent work is readily available. For whatever reason, family health or personal preference, the individual is free to pull up stakes and move anywhere in the country, take a job, and receive the subsidy. There are some who suggest that would benefit my sunshine State of Arizona. It would be pretty nice to quit the job in the Rust Belt and move to Arizona because of the subsidy provided in this bill. There is no protection against fraud and abuse. There is a perverse incentive in this provision for employers to reduce the wages they pay knowing the Federal subsidy will supplement their workers' income and make up the difference. There is no requirement the new employer and employee be at arm's length. This is a very critical provision rife for potential fraud and abuse. There is no inquiry permitted as to whether the new job, perhaps with a family member or friend, is a legitimate consequence of the displaced worker having to leave his former employment. Because the U.S. Government makes up the difference in wages, it is, as I say, rife with potential for fraud and abuse. We ought to go back to principle and not politics.

Mr. KYL

Mr. KYL. Mr. President, I will speak in morning business but really on the subject of our 6 o'clock vote, the nomination of Paul Cassell to be judge for the district court serving the State of Utah. I am not from Utah, obviously. And you might ask, what is an Arizona Senator doing speaking on behalf of a nominee from another State? The answer to that question is, I have gotten to know Paul Cassell, and I am a very big fan of Paul Cassell. I think he will do a superb job on the bench. I just want to take a couple minutes of my colleagues' time to explain why. It is not often we have the opportunity, as Senators, to vote for a nominee, who we really have gotten to know in our work in the Senate, to serve as a district judge in another State. But Paul Cassell has testified before the Senate Judiciary Committee and has worked many hours with Senator Feinstein and myself and some other Senators in helping to craft the victims' rights constitutional amendment. You can have a view either for or against that amendment, but Professor Laurence Tribe from Harvard and Professor Paul Cassell from the University of Utah are the two legal professors, constitutional scholars, who have helped us most. They may represent different points on the political spectrum perhaps, but in terms of their legal scholarship and their ability to work together in helping us to craft this amendment, they have performed a magnificent service. Again, whatever one thinks of the particular amendment, you cannot deny that these two professors have contributed significantly to the work of the Senate and, therefore, to the American people as a result of their work. Let me just tell you a little bit about Professor Cassell first and then talk about his work on behalf of victims of crime. As I say, that is one of the primary reasons I am so supportive of him. As I said, he is a member of the facility at the University of Utah College of Law where he teaches criminal procedure and evidence and some other courses as well. He has published over 25 Law Review articles, as well as major op-eds and various periodicals. Before entering academia, Professor Cassell served as an assistant U.S. attorney in the Eastern District of Virginia and as Associate Deputy Attorney General at our Department of Justice. He clerked for then-Judge Antonin Scalia in the U.S. Court of Appeals for the D.C. Circuit and then for Chief Justice Warren Burger of the U.S. Supreme Court. Those of us familiar with these facts know if you are able to clerk for both a member of the D.C. Circuit Court of Appeals and then for the Chief Justice of the U.S. Supreme Court, you are a law student graduate with something on the ball. Certainly, Professor Cassell fits that category. He received his J.D. in 1984 from Stanford University, where he was Order of the Coif and president of the Stanford Law Review. So his academic credentials and his postacademic career have been outstanding. He tried a number of cases when he was assistant U.S. attorney. As a matter of fact, he prosecuted 17 felony jury trials, and some of them were very famous cases. I will let others talk about those cases. But one of the most interesting things to me that Professor Cassell did-- purely without pay; as a volunteer--was to represent the victims of the Oklahoma City bombing case. You may ask, why did the victims in the Oklahoma City bombing case need representation? You can imagine, having as many victims as there were in that case--people who were either injured in the bombing or the families of people who were killed, all wanting to be involved or participate in some way in that case, including even just the ability to be in the courtroom--it was a major battle. As a matter of fact, the judge in that case--not once but twice-- ruled that the families of the victims did not have a right to be in the courtroom during the trial. This was not because there were so many people that they could not all fit into the courtroom, although that was another issue, but the reason the court ruled that way was that the defense had argued it would be prejudicial to the defense, to the defendants, if the victims or their families were actually in the courtroom during the trial. Never mind that a judge always has the ability to say: Everybody will be motionless, will show no emotion, will behave themselves; and if they do not, then I will toss them out of the courtroom. That was not good enough in this case. We in Congress passed a law saying: You have to let the people who were victims of the Oklahoma City bombing case sit in the courtroom. The case went back to the judge, and again the judge said no. One of the reasons he said no had to do with the reason for the victims' rights constitutional amendment, which I will not go into now, but basically he said the defendants' rights are in the U.S. Constitution, and the mere statute of Congress cannot override that. So these victims are going to have to have special rights. They are going to have to be in the Constitution. That is another argument, as I said. But Paul Cassell, out of the goodness of his heart, represented all the victims in that case. I think the victims I have talked to would tell you, to a person, they were extraordinarily indebted to Paul Cassell for his service to them in that case. There is much more I could say about this individual. Paul Cassell is a decent person who believes very strongly in the rights of both defendants and victims in the courtroom. He has served as a prosecutor for the United States of America and, therefore, has represented our Government in many cases against some truly bad felons. He has experience on the criminal side and on the civil side and has experience as a law professor, teaching not only constitutional law but evidence. That makes him uniquely qualified to go from where he is now to the bench. It is not often that we find people who have this wide array of experience willing to serve on the Federal district court. It is much too easy in today's world for lawyers to make good money in the practice of law. But it is obvious that Paul Cassell has never been interested in just making money. He has wanted to serve, first, the people of the United States of America as an assistant U.S. attorney and then through his professorship to serve victims of crime and others on a purely pro bono basis. We have a unique person who not only is extraordinarily well qualified from his academic experience and the breadth of his practice experience but who also has demonstrated a desire to serve the people. For a person as young to have that kind of commitment and to be willing to go on the Federal district court is unique and certainly should cause us to vote for his confirmation. I know him personally. We couldn't do better than to confirm Paul Cassell to serve on the Federal district court in the State of Utah. I commend my colleagues to support his confirmation when we vote in a little over an hour. I suggest the absence of a quorum.

Mr. KYL

Mr. KYL. Madam President, if we do not move on these nominations, it is going to cause a significant decline in the reputation of the Senate.

Mr. KYL. Madam President, I compliment the Senator from Pennsylvania for the remarks he has just made, especially in relationship to a judge that means a lot to him, Brooks Smith, who has been nominated by the President to serve on one of our Nation's highest courts. There is no reason, as Senator Santorum has said, for this fine individual to be held up. It may be that for purely partisan reasons, someone will try to find a pretext such as the business about the club. I have heard that, too. But I can't believe at the end of the day anybody would actually use that, at least publicly, as a reason to oppose the nomination. There is nothing to it. When people get so caught up in the politics of it, as the Senator from Pennsylvania has said, they begin to do things that in cool, collected thought maybe they would not ordinarily do. They get carried away and even refuse to consider a judge based upon a pretext such as this. When that kind of precedent is set, it does begin to not only demean this institution but degrade the court system and fundamentally alter the relationship between the Senate and the President and our responsibility of advise and consent to the nominees. The Senator has made a very good general point; unfortunately, a point well taken with respect to a nominee pending before the committee, Judge Smith. I want to make the clarifying point that it is not just the Judiciary Committee involved here. The Republican members of the Judiciary Committee, of which I am one, would very much like to move forward on Judge Smith and other nominees. We were called by the President today to join him at the White House because today is an anniversary of sorts. There are three anniversaries today that mean something to me personally. It is my father's birthday; he is 83 years old today. It is the Attorney General's birthday, John Ashcroft, who is 60 years old today. And, unfortunately, the other reason it has meaning is, as the President reminded us, it has been exactly 1 year since he nominated some very fine individuals to serve on the circuit courts of appeals--1 year and not a single hearing on eight of these nominees, all very fine individuals. There has been no hearing scheduled, no hearing held, let alone moving the process forward so that they could be confirmed. I don't know of any reason any of these judges or lawyers nominated to the circuit courts should be held up. As a matter of fact, they have all been rated by the American Bar Association as ``qualified'' or ``well qualified'' to serve on the circuit court. That was, according to our Democratic colleagues, the so-called gold standard by which these candidates would be judged. So if it is to apply in these cases, then all of these individuals should be confirmed, and at a minimum, of course, the committee should begin to hold hearings on them. Why aren't the hearings being held? It could be one of two different reasons. The first has to do with an attempt to change the standard by which we historically have judged judicial nominees. This morning, the Senator from New York, who chairs a subcommittee of the Judiciary Committee, held a hearing in which he was very clear about his belief that ideology should play a role in the Senate's confirmation of the President's nominees. He expressed a view that nominees of President Clinton were all mainstream or mostly mainstream; whereas President Bush keeps on nominating ideological conservatives, people who, in his view, are out of the mainstream. The Senator from New York is certainly entitled to his views. He noted, and I agreed, that he and I probably would disagree philosophically on a lot of things. He probably would call himself a liberal Democrat. I would proudly call myself a conservative Republican. We respect each other's rights to believe in what we believe and to pursue those positions. But I don't think either one of us should therefore suggest that we are the best ones to judge what a balance on the court would be. We probably would both want to shade it a little bit toward our particular point of view. The Senator from New York says he believes it is our job as the Senate to restore balance to the courts. I pointed out that, of course, balance is all in the eye of the beholder; that probably the President of the United States, elected by all of the people of the country, was a better judge of the mood of the country, especially a President who, by the way, has an approval rating of well over 70 percent. When he ran for President, it was clear that if he won, he would be the person nominating the judges. As a matter of fact, Vice President Gore made a point during his campaign to warn voters that if they elected President Bush, then-Governor Bush, he would be making the nominees to the court. He was right about that. When President Bush was declared the winner, he had every right to make these nominations. If the people are not well qualified, then the Senate should vote them down. On occasion that has happened, but it is quite rare. As the Senator from Pennsylvania pointed out, the test has been, for most of us over the years, even if you don't like the person ideologically, if that is the President's choice and the individual is otherwise well qualified, then you really ought to vote to confirm. All of us have done that. I have swallowed hard and voted for people I didn't particularly care for and whose ideology I very definitely didn't care for. I voted for them nonetheless because I couldn't find anything wrong with them. They graduated high from their law schools. They had done a good job in a law practice or on some other bench. Even though I figured they would probably be quite ideologically liberal-- and by the way, some have turned out to be ideologically liberal--I felt it was my obligation, since that was the President's choice, and there was no question about qualification, that we should approve them. That I did. That has been the tradition in this body for a very long time. I don't think it is appropriate for us to try to define what a proper balance of ideology is and to turn down the President's nominee because of that. I especially think it is wrong not to give them a hearing and find out. These eight nominees to the circuit court the President made exactly a year ago have never had an opportunity to come before the committee and answer any questions about their ideology. There is a presumption that has not necessarily been backed up by reality or by facts. I would think that, as the Senator from Pennsylvania said, if there is no reason to be afraid of these judges, then we ought to have a hearing. And if there is, I would think people would want to bring those reasons out to demonstrate why they are not qualified to sit on the bench. But, in fact, there has been no suggestion that there is a reason why any of these eight candidates are not qualified. In fact, I don't think even most of them could be fairly characterized as somehow ideologically way out of the American mainstream. The other thing that might be offered as an excuse not to hold hearings is--and I have heard this often from my Democratic colleagues--they believe that some of the Clinton nominees for courts were not treated fairly because they were not given hearings. It is true there were a few that, for one reason or another, did not get a hearing. Of course, in the case of those nominated at the end of the last year of the Presidency, there is good reason for that because there is no time to do it. But there were still probably some who could have had a hearing and did not. A hearing was held this morning by the Senator from New York in which four of those individuals were called to testify. And each one of them made the point that they were disappointed--actually, one had gotten a hearing but had not been confirmed. They all made the point they were disappointed and they didn't think it was fair. Two of them, particularly, I thought, made a very good point that when you get right down to it, it is very unfair for a nominee not to have a hearing. They believe that all nominees should have a hearing. That, of course, applies today as much as it applied to them. If it was wrong for them to be denied a hearing, it is just as wrong for President Bush's nominees to be denied a hearing. The second reason that sometimes is offered up to me why President Bush's nominees are not being given a hearing or moved forward through the process for confirmation, it seems to me, is based upon a false premise; that is, in effect, saying two wrongs make a right. It is wrong not to give somebody a hearing. Some of President Clinton's nominees were not given a hearing, so we are not going to give President Bush's nominees a hearing. If it is wrong, it is wrong. If it is wrong, it should stop. I heard one colleague say, but we need to go back and fix the wrong. To my knowledge, there is only one President who has gone back and nominated people his predecessor of another party had nominated who were not confirmed. President Bush has actually gone the extra step and renominated two of the Clinton nominees who have been confirmed already by this body. To my knowledge, President Clinton didn't renominate any of the 40-some--I believe that is the correct number--nominees pending at the end of the Bush 41 administration. President Bush 43 has done that. So I think it is wrong to say we are not going to have a hearing on these individuals because some other candidates didn't get a hearing and that was wrong. Again, two wrongs don't make a right. Today, President Bush told us that he called upon the Senate, and specifically the Senate Judiciary Committee, to move forward with these nominees. He told us he thought it was very unfair to the fine people he had nominated that their lives, in effect, are in limbo at the moment because they don't know whether they are going to get a hearing, whether they are going to be confirmed. In the meantime, their law practices are suffering, if they are still in the practice of law. Their reputations are hanging in the balance. Let me tell you a little bit about a couple of them. Of these eight nominees who have languished before the committee and have not had a hearing, one is John Roberts, a nominee to the DC Circuit Court of Appeals. He is one of the country's leading appellate lawyers. He has argued 36 cases before the Supreme Court. He served as Deputy Solicitor General. He has a great track record. There is nothing wrong with this nominee. He is one of the smartest people and one of the most experienced people we could put on the DC Circuit Court. Nobody denies that. So why hasn't he had a hearing? Why? You can cite all kinds of statistics about how many Clinton nominees were approved and this and that. But when you get right down to it, there is absolutely no reason this fine man hasn't had a hearing now in a year. Miguel Estrada has been nominated to the DC Circuit and he has a great story to tell. He would be the first Hispanic ever to serve on the DC Circuit. He has argued 15 cases before the U.S. Supreme Court. By the way, this is a big deal for a lawyer to argue before the Supreme Court. I have had three cases there in my law career, and it is a great honor for a lawyer. When you can say you have argued 15 cases--and I argued 1--and when you can say you argued 36 cases, that is something very few lawyers have ever had the opportunity to do. It shows that you are an extraordinary lawyer. So why isn't Miguel Estrada even getting a hearing? He would be the first Hispanic to serve on this court. He was an Assistant U.S. Solicitor General. He was a Supreme Court law clerk. He has been a Federal prosecutor. No one can say he is not qualified. In fact, the Bar Association unanimously recognized both of these individuals are well qualified, with their highest rating. Justice Pricilla Owen, a nominee to the Fifth Circuit, has served on the Texas Supreme Court since 1994. Every newspaper in Texas endorsed her in her last run for reelection. So why isn't Justice Pricilla Owen even receiving a hearing? There is no reason she should not receive a hearing--or at least no fair reason. I am told Michael McConnell is one of the most intelligent people ever to be nominated to a circuit court. He is nominated to the Tenth Circuit, and he is one of the country's leading constitutional scholars and lawyers. He has an incredible reputation for fairness, as has been illustrated by the support he has received from literally hundreds of Democrat and Republican law professors around the country. He is clearly one of the outstanding jurists in the country. He hasn't even gotten a hearing. Why? Jeffrey Sutton is another of the country's leading appellate lawyers. He has been nominated to the Sixth Circuit. He graduated from Ohio State Law School and was first in his class. He has argued over 20 cases before the U.S. Supreme Court and State supreme courts, and he served as solicitor of the State of Ohio. Justice Deborah Cook, a nominee to the Sixth Circuit, has served as a justice on the Ohio Supreme Court since 1994, a State supreme court justice. She was the first woman partner in Akron's oldest law firm. This is another extraordinarily qualified individual. There is no reason for her not to have a hearing. Why hasn't this nominee even had a hearing? Judge Dennis Shedd has been nominated to the Fourth Circuit. He was unanimously confirmed by the Senate as a Federal district judge in 1990. He is strongly supported by both home State Senators--one a Democrat and the other a Republican. In fact, he is past chief counsel to the Senate Judiciary Committee. He, too, has a great number of friends on both sides of the aisle. He would be a great judge on the circuit court. Why hasn't he even received a hearing? Is there anything wrong with him? Judge Terrence Boyle, also nominated to the Fourth Circuit, was unanimously confirmed to be a Federal district judge in 1984. He has served all of this time, and I haven't seen anybody come forward with anything that would suggest he is not qualified. As a matter of fact, the State Democratic Party chairman supports Judge Boyle's nomination. He says that he gives everyone a fair trial. If the former chairman of the Democratic Party in the State can endorse a Republican President's nominee to the circuit court, that is a pretty good thing. You would think partisan consideration could be laid aside. Why hasn't this individual even received a hearing? It is not too much to ask that, after 365 days, the first step in the confirmation process be taken. A year ago, President Bush said: There are over 100 vacancies on the Federal courts causing backlogs, frustration, and delay of justice. Today, a year later, he is asking us to begin the process of clearing up this backlog. He has done his part. Chief Justice Rehnquist recently stated that the present judicial vacancy crisis is ``alarming,'' and on behalf of the judiciary, he implored the Senate to grant prompt hearings and have up-or-down votes on these individuals. I noted that the chairman of the Senate Judiciary Committee, Senator Leahy, in 1998, at a time when there were 50 vacancies, said that number of vacancies represented a ``judicial vacancy crisis.'' Those were his words. Today, there are 89 vacancies. We are getting close to twice as many. It is a 10-percent vacancy rate. The Judicial Conference of the United States classified 38 of these court vacancies as judicial emergencies. The President has 18 individuals nominated to fill a seat designated as a judicial emergency. What that means is that litigants cannot get to court. There are delays of 6 and 8 years of people not being able to get to court or have their cases resolved--in the case of some criminal cases. This is unfair to litigants, and it has been said many times that justice delayed is justice denied. There are many situations in which that is true, but that is what is happening as a result of not being able to fill these positions, especially with regard to those denominated as judicial emergencies. The 12 regional circuit courts of appeals are the last resort, other than the Supreme Court. There are 30 vacancies, which is a 19-percent vacancy rate. Filings in the 12 regional courts of appeals reached an all-time high last year. They have increased 22 percent since 1992, and I could quote from former presidents of the American Bar Association and others who have expressed grave concern about the ability to do justice when these kinds of vacancies exist. I will read one quotation from one letter: I urge you to heed President Bush's call and not as Republicans and Democrats, but as Americans. It's time for the Senate to act for the good of our judicial system. In the Sixth Circuit Court of Appeals, half of the court is vacant. Of the 16 authorized judges, 8 stand vacant today. At a time when there were only four vacancies on that court, Chief Judge Merritt of that court wrote to the Senate Judiciary Committee and said this: The court is hurting badly and will not be able to keep up with its workload. Our court should not be treated in this fashion. The public's business should not be treated this way. The litigants in the Federal courts should not be treated this way. The situation in our court is rapidly deteriorating due to the fact that 25 percent of our judgeships are vacant. Now it is 50 percent. The caseloads in Federal court can be expected to increase because of the war on terrorism and in my area because of the extraordinary amount of illegal contraband and illegal immigration coming across the border. It is sad that the Senate cannot bring itself to even hold hearings on people who have now been sitting for a year since their nomination, individuals who by any measure are extraordinarily well qualified, are among the most qualified in the country. There is nothing wrong with them, and yet no hearing. As of this date, the Senate has confirmed only 9 of the President's 30 circuit court nominees. By contrast, President Clinton had 42 percent of his circuit court nominees confirmed by this same date in his term. I know we can quote statistics, and that is not really the most important issue. I quote from the Washington Post editorial of November 30 of last year: The Judiciary Committee chairman, Democratic Senator Patrick Leahy, has offered no reasonable justification for stalling on these nominations. The point is, anybody can cite statistics, and most of us are pretty good lawyers and can argue the case, but at the end of the day, there is no reasonable justification for stalling on these nominations. There is no reasonable justification for stalling, unless--I think the Post might have gone on to say--you are trying to get even because of some perceived slight. That is beneath the Senate of the United States of America, and it should not be the motive of anyone, and I cannot believe it would be. This is no reason why these nominees should be denied a hearing. Lloyd Cutler, who was President's Clinton's White House counsel, and former Congressman Mickey Edwards recently wrote an op-ed in the Washington Post. They said: Delay in confirming judges means justice delayed for individuals and businesses, and combined with the bitter nature of some confirmation battles, it may deter many qualified candidates from seeking Federal judgeships. That is the unfortunate additional result of what is happening here. More and more good candidates are going to say: Why should I put myself and my family through all of this? And that is going to be a real shame. Historically, Presidents were able to get their nominees, especially their first nominees, confirmed. President Reagan, President Bush 1, and President Clinton all enjoyed a 100-percent confirmation rate on their first 11 circuit court nominees--100 percent. All were confirmed within a year of their nomination. Remember, these eight we are talking about have not even had a hearing within a year. The broader picture is no different. The history of the last three Presidents' first 100 nominations shows that, one, President Reagan got 97 of his first 100 judicial nominations confirmed in an average of 36 days; President George Herbert Walker Bush saw 95 of his first 100 confirmed in an average of 78 days; and President Clinton saw 97 of his first 100 confirmed in an average of 93 days. But to date, this Senate has confirmed only 52 of President Bush's first 100 nominees, and the average number of days to confirm has exploded to 150. It is not possible to say that nothing is happening, that nothing is different, that this is no different than in previous administrations, that President Bush's nominees are being treated the same as any others. It is just not true. The statistics belie that. Madam President, even if you do not want to talk about the statistics, I just ask you to focus on what President Bush focused on today. He said: I nominated 11 good people a year ago today, and only 3 of them have even had the courtesy of a hearing. Would you please go back to your colleagues and implore them to treat these people fairly? He said: It is not for me; it is for the American people. He made that point a couple times. And it is for justice and for the American people. I also think that it is going to say something about the Senate.

Mr. KYL

Mr. KYL. Madam President, since trade-promotion authority lapsed in 1994, America has stood on the sidelines while other countries have brokered trade agreements that benefit their workers, their businesses, and their economies. Soon after taking office, President Bush called on Congress to grant him trade-promotion authority to reassert America's leadership in promoting U.S. goods and the expertise of our workforce to more markets. The House has acted, the Senate Finance Committee has acted, and it is now time for the full Senate to deliver. Exports accounted for more than one-fourth of U.S. economic growth in the 1990s. Jobs depending on exports pay wages that are an estimated 13 to 18 percent higher than the national average. One in ten American workers, 12 million people, work at jobs that depend on exports of goods and services. Trade is good for American farmers and ranchers. Trade is good for American small businesses. At the most basic level, trade is essential to our country's economic growth and prosperity. Yet, every day that America delays, other countries throughout the world are entering into trade agreements without us, benefitting their workers, their farmers, their businesses and their economies at the expense of ours. Our competitors in Europe, Asia, and Latin America have sealed deals on approximately 130 preferential trade compacts, many within our own hemisphere. Yet the United States is party to only three, with Canada and Mexico, Israel and Jordan. Without trade-promotion authority, the United States, would not be able to build on the many robust economic relationships we share with other countries throughout the world. One such country is Australia. There are few larger, stronger, or more open economies with which the United States can negotiate a bilateral free trade agreement than Australia. Annual two-way trade between the United States and Australia is valued at $28 billion, supporting thousands of jobs in each country. The United States is Australia's largest source of imports and Australia's second largest export market. Everyone can agree that an Australia-United States Free Trade Agreement would only enhance this fruitful relationship. Aside from being one of our closest friends and allies, Australia is a strategic trading partner in the Asia-Pacific Region. Clearly, we have a mutual stake in expanding our market presence in this region, and a U.S.-Australia Free Trade Agreement would set a benchmark for other trade agreements in the future. It would not only send a message that we are serious about the principle of open markets, but it would show what trade-promotion authority can deliver. This is just one example of why we need trade-promotion authority, but it is reason enough, and it speaks to why we must act now. I urge my colleagues to join me in support of trade-promotion authority.

Mr. KYL

Mr. KYL. Mr. President, I thank my colleagues, Senator Lieberman and Senator Smith, for bringing this amendment forth. They are serving an important purpose today to bring clarity back into the debate--a clarity which has eluded some pundits and some talking heads and others who appear on the news and as result of which confuses the situation at a time when it requires a very clear-eyed approach by the United States. Like it or not, we are in a position where everyone calls upon us to help solve problems of the world, including this most intractable problem in the Middle East. But as it turns out, we are in a unique position to influence matters in the right way, if we look at the situation clearly. What I appreciate about this amendment being brought to the floor today is that it brings us back to the first principles. It says, let's get back to where we started in our war on terror in analyzing where others are, where they should be. It makes the point that the United States and Israel are on the front line in this war on terrorism, that our goals and objectives are the same, and that therefore the United States is not only obligated to recognize Israel's rights for its sake but also for the sake of the war we are conducting. It brings us back to a position of clarity in the way we analyze the situation, which is why the amendment is so important today. I appreciate their bringing it forth and look forward to expressing my support through voting for it as well. I am so disappointed, in talking with some close friends and watching the news to see the kind of confusion that creeps into the debate when propagandists, who have their own agenda, and people without a clear understanding combine to create disinformation and misimpressions about what really is at stake. When I see talk about a cycle of violence, when I see a great emphasis placed on the question of when the Israelis are going to withdraw, to the exclusion of any expressed concern about the horror of the terror that is being visited upon the Israeli people, when I see questions about why we would not allow the United Nations to come in and investigate a massacre--an alleged massacre--without any seeming concern for the obvious massacre, which is essentially undenied, that has occurred week after week after week for the last 18 months, there seems to be such a distortion of the picture here that it almost boggles the mind. It requires an amendment of this sort to bring us back to the reality of what is happening. It is almost as if there is a clouded lens in front of some people's eyes and an amendment such as this is necessary to remove that cloud so that we can clearly see what is happening. And what is happening is that just as the United States was attacked by terrorists, Israel has been attacked by terrorists. The President has said whatever grievance one might have, terrorism is an illegitimate response which the whole world must rise up to defeat and those who temporize with it, those who rationalize it are just as bad as those who support it and harbor it because they allow it to continue. They allow a great confusion to exist which makes it more difficult for us to do what has to be done in fighting the war on terror. That is why this measure which brings us back to the clarity of purpose is so timely and why it is so important. Mr. President, I conclude with this thought: The United States is not right in everything, but one reason that most of the world has looked up to us most of the time is because of the moral clarity of our positions. People will disagree with us, they will be uncomfortable with what that moral clarity requires them to do, they will find reasons not to join us in these activities, but at the end of the day, if you give people a choice of whether you would like to come to the United States of America to live, ``What do you think about the moral positions of the United States,'' more often than not people would have to admit, at least in their heart of hearts, that the United States pursues its action out of what we fundamentally believe is right for the reasons that do not have so much to do with our own vested interests as they do with the good of humanity, of mankind. When the President commits the United States to conducting this war on terror, it is not just for the American people, but it is to help rid the world of a form of evil which can afflict all people of the world. The President is able to galvanize not only American public support but support around the world because of the moral clarity of that purpose. Terrorism is evil. It has to be defeated. There is no compromise with it. Therefore, at some point in time you have to choose to be with us or against us in fighting it. You cannot remain on the sidelines. You cannot be neutral about something that is so terrible. Therefore, it is critical for leaders in the United States to keep reminding people of the fundamental, clear rationale for American action. When we get back to that clear, fundamental rationale of good versus evil, then we can see clearly how the principle applies in other situations. The other situation that we are referring to today is the situation in the Middle East in which certain terrorists, who are Palestinian by and large, are attacking innocent civilians who, by and large, are Israeli citizens in a way which is clearly evil: Terrorism against innocent people. No amount of testimony temporizing or rationalizing or expression of grievance or pointing of fingers or anything else can change that fundamental fact. Unless we are able to look at this that clearly, it is possible to become confused, to begin to support compromises, to begin to suggest negotiations of fundamental principle. All of those things are a slippery slope which lead to disaster, which do nothing but ultimately demonstrate to terrorists that there is hope for them in their terror. As was pointed out by former Prime Minister Netanyahu, the key to fighting terrorism is to remove the hope that terrorists have that by conducting this evil enterprise, they can actually succeed in what they are attempting to achieve. Once that hope is removed, then reasonable people can discuss reasonable solutions to the real problems of Palestinians and Israelis, a Palestinian State can be created and all of the things that right-thinking people in the region hope for can come to pass. But that is not possible as long as a small group of people believe and hope that they can achieve their radical aims through the means of terror. That hope has to be removed. It will not be removed if leaders of the world temporize and suggest that you can reach accommodations with these people for one reason or another, in one way or another. That hope can only be realized if there is a continuing commitment to a clear principle that terrorism is wrong; you cannot compromise with it. You have to face up to it. Tough. Deal with it. And if that means that the United States has to support the Government of Israel in rolling back the terror that it has been faced with, then so be it. That is our goal as much as it is Israel's goal. This amendment gets back to that first principle and expresses the United States commitment not only to fight the war on terrorism but to join others who are doing so, such as our good friend and ally, Israel. That is what this amendment brings us back to--moral clarity, as the Senator from Connecticut just said. We have to be clear-eyed in our fight here or the rest of the world is not going to support us. They will view our effort as unclear, as compromisable, and, therefore, one which is not assured of victory. It will only be assured of victory if we hold this beacon out here that we are going to continue to pursue, which is clear, which is unassailable from its moral perspective. If we remain true to that, then we will be victorious in this war of terror and the good people of Israel will be happy for that future as well. I commend my colleagues for bringing this amendment to the floor, and I very much look forward to supporting it with my vote.

Mr. KYL

Mr. KYL. I will indicate the names of these 8 nominees, and I will point out that of the 11 who were nominated by the President on May 9, 2001, 3 have been confirmed. Two of those were judges previously nominated by President Clinton, and I think that is interesting. The Judiciary Committee chairman is willing to move people who were nominated by President Clinton but not by President Bush. So when we talk about nominees of President Bush having been confirmed to the circuit court of appeals, remember that two of the three of this initial group were originally nominated by President Clinton. The eight nominees who have languished before the committee are the following, and they are individuals all of extraordinary experience, intellect, and character: John Roberts is a nominee to the DC Circuit. He is one of the leading appellate advocates in the United States, having argued 36 cases before the U.S. Supreme Court. He served as Deputy Solicitor General. I doubt there is another lawyer in this country in the Solicitor General's Office who has argued 36 cases before the U.S. Supreme Court. Miguel Estrada is nominated to the DC Circuit. He has argued 15 cases before the U.S. Supreme Court, worked as a Federal prosecutor, as Assistant Solicitor General, and a Supreme Court law clerk. He came to America as a teenager, spoke virtually no English and, if confirmed, would be the first Hispanic ever to serve on the DC Court of Appeals. Justice Priscilla Owen, who is a nominee to the Fifth Circuit, has served on the Texas Supreme Court since 1994. In her successful reelection bid in 2000, every major newspaper in Texas endorsed her. Michael McConnell is a nominee to the 10th Circuit. He is one of the Nation's leading constitutional scholars and lawyers. His reputation for fairness and integrity has generated support from hundreds of Democrat law professors across the country. Jeffrey Sutton is a nominee to the Sixth Circuit, another of America's leading appellate lawyers. He graduated first in his class from Ohio State Law School, has gone on to argue over 20 cases before the U.S. Supreme Court and State supreme courts, and served as the solicitor in the State of Ohio. Justice Deborah Cook is also a nominee to the Sixth Circuit. She has served as a justice on the Ohio Supreme Court since 1994 and, before becoming a judge, was the first woman partner at the oldest law firm in Akron, OH. Judge Dennis Shedd, a nominee to the Fourth Circuit, was unanimously confirmed to be a Federal judge in 1990. He is strongly supported by his home State Senators, Democrat Hollings of South Carolina and Republican Thurmond of South Carolina. He served in the past as chief counsel to the Senate Judiciary Committee. Finally, Judge Terrence Boyle, a nominee to the Fourth Circuit, was unanimously confirmed to be a Federal district judge in 1984. The former chairman of the State Democratic Party supports Judge Boyle's nomination, stating that he gives everyone ``a fair trial.'' On January 25, Judiciary Committee Chairman Leahy indicated that Justice Priscilla Owen, Michael McConnell, and Miguel Estrada would receive hearings this year. Each has waited nearly a year for a hearing and more than 2 months for a hearing since this statement. Chief Justice Rehnquist recently stated that the present judicial vacancy crisis is alarming and, on behalf of the judiciary, implored the Senate to grant prompt hearings and to vote these nominees up or down. I conclude by showing two things. On this chart it shows the President's rate of judicial confirmations by the Senate, comparing President Clinton and President Bush. The red line ends at exactly 11 months after each President nominated his first nominees. These are both district and circuit court nominees. By the end of 11 months, President Clinton had 67 percent of his nominees confirmed. President Bush, 11 months after his first nominee was made, only had 44 percent of his confirmed. At the end of 14 months, as it shows, President Clinton had 90 percent of his nominees approved--14 months after the first nomination was made. At the rate we are going, President Bush will be lucky to have 50 percent. Let's be specific about circuit court nominees because I think this is even more telling. This chart shows the circuit court confirmation rates by the Senate. Again, after 11 months, President Bush has had 31 percent of his circuit court nominees approved by the Senate. By contrast, 63 percent of President Clinton's nominees were approved to the circuit courts after 11 months, and 14 months after he made his first nominee, 86 percent of President Clinton's nominees had been approved by the Senate. At the rate we are going now, we are obviously not going to get to 86 percent. We cannot get the confirmation until we have had a hearing. It would be reasonable to expect hearings to be held on the eight nominees within a year of the time they were nominated. Whatever the record of success, whatever the number of hearings that have been held for district court nominees, whatever else one might say, there is absolutely no excuse for not even scheduling a hearing on a circuit court nominee for a full year after that nominee was nominated by the President. Unanimous Consent Request I have a unanimous consent request to propound, and I expect a fulsome response from the Senator from Nevada. I ask unanimous consent no later than May 9, 2002, the Judiciary Committee shall conclude hearings on each of the eight nominations remaining of those made by President Bush on May 9, 2001, to the United States Circuit Court of Appeals.

Mr. KYL. Mr. President, I appreciate the remarks of the Senator from South Carolina, and I ask that the record reflect my agreement with my colleague, Senator McCain, on this matter. Since I have agreed with Senator Reid to discuss another matter, I will simply indicate at a later time I will make remarks concerning both the Andean trade bill as well as trade promotion authority. There is another matter which is very timely. As a matter of fact, it is important we speak on it now because there is scant time to get some very important business done in the Senate, which has to do with the confirmation of judges but more specifically the holding of hearings on judges because they cannot be confirmed until there has been a hearing on them. For too many of our judges, we do not even have hearings scheduled. It would be one thing if we waited 2 or 3 months after a nomination to schedule a hearing, but I am speaking of people who have been nominated now for almost an entire year and there has never been a hearing scheduled for them. I am going to take a minute or two to talk about who they are. I will quote briefly from a Washington Post editorial and then propound a series of unanimous consent requests that will perhaps move us toward the hearings we need to get these judges confirmed. Preliminarily, Democrats and Republicans can both cite a lot of statistics about judges confirmed under one administration or another, and can pat themselves on the back about a job well done. But it seems to me one thing stands out that is unmistakably clear, and that is when the President has nominated a distinguished American to serve on a Federal district court or, in this case, a Federal circuit court of appeals, and the Senate does not deign to give those people a hearing for over a year, something is wrong. There is no excuse for holding someone for a full year. It has now been a year, minus 1 week, since the President made his first circuit court of appeals nominations, 11 in all. Eight of them have never had a hearing. Quoting briefly from this Washington Post article of April 22: It has been nearly a year since President Bush nominated his first batch of judges. Parenthetically, that was done on May 9, 2001. Of the initial group of 11 appeals court nominees, 8 have still not had hearings before the Senate Judiciary Committee. Two of these nominees are of particular local interest: John Roberts and Miguel Estrada. Both have been nominated to the D.C. Circuit Court of Appeals, which currently has 4 of its 12 seats vacant. Both, on the surface anyway, seem well qualified, having done extensive appellate work in the solicitor general's office and in private practice. Both have high profile bipartisan support. Yet neither has moved. And while Judiciary Committee Chairman Patrick Leahy has said that Mr. Estrada will receive a hearing this year, he has pointedly failed to promise the same for Mr. Roberts. Skipping part of the editorial to two other quotes: Nominees should receive timely consideration out of deference to the President, out of respect for the institutional needs of the judiciary, and out of a sense of fairness to the individuals. But delays are particularly objectionable when nobody will even come forward to make a case against the nomination. The final three sentences of the editorial: If there is a case to be made against either nominee, the onus is on opponents to make it and its proper forum is a hearing. If there is no case, the Senate should move to a vote. Either way, further delay is not the answer. I ask unanimous consent that this Washington Post editorial dated Monday, April 22, 2002, be printed in the Record.

Mr. KYL. Madam President, if I might suggest this: Probably Senator Reid and I will have a colloquy over a series of unanimous consent requests that I will make. I will just count that on my time. When I am done, I will certainly have no objection to the Senator from North Dakota speaking.

Mr. KYL. Yes, Mr. President. I object.

Mr. KYL. Mr. President, I guess in light of this last objection, as the lawyers say, I will rest my case. I think I have made my point. I hope we can have this conversation again in the next 2 days. Having had an opportunity to confer with Senator Leahy, I hope the Senator from Nevada will have better news for us, but especially for the eight nominees who have been languishing now for a full year, and we can quickly move to have a hearing on at least some of those nominations.