Frank Lautenberg

Mr. LAUTENBERG

Mr. LAUTENBERG. I am aware of all that.

Mr. LAUTENBERG. I absolutely agree that there would typically be a determination by them to support the nomination, but they are not. If the Senator will help sharpen my memory, I think they said keep on talking in the close of that editorial piece.

Mr. LAUTENBERG. I would be happy to.

Mr. LAUTENBERG. I agree with the Senator and wish I had written it as well.

Mr. LAUTENBERG. Yes.

Mr. LAUTENBERG. I agree with it fully. I read that editorial. I was in total agreement with their logic, coming from New Jersey where we had candidates who were recommended for the appeals court languish--nothing happening for months and months and months. The protests we hear now from our friends on the other side about the process are a bit shameless because we had a nominee from California, Mr. Paez, who waited, I believe, 1,500 days.

Mr. LAUTENBERG. Waiting for a review by the committee, and could not get that. If we talk about obstinate approaches to the process about deliberate obstruction, the record is very clear. When we presented candidates, when the Democrats were a majority, they could not move them because the Republican side of the Senate would not permit any action at all.

Mr. LAUTENBERG. I am happy to yield to my friend from Nevada.

Mr. LAUTENBERG. I agree 100 percent with that statement, and I think we ought to get on with the business of the American people.

Mr. LAUTENBERG. Indeed, that is true. I just got a letter from a district court judge in New Jersey, considered one of the most brilliant and able district court judges, who was recommended for the circuit court of appeals in our district and decided after a long wait that he was not going to get a chance to be heard for a circuit court job. He informs me in his letter that he is going back to the law firm after 10 years on the Federal bench--a distinguished jurist, a great loss. He could not get a hearing, so he decided to withdraw rather than sit there and be dangled like a kite in the wind.

Mr. LAUTENBERG. I am fully aware of that. I listened when the distinguished Democratic whip read that list the first time, and I took the liberty of reading the list a second time to make sure it was clearly understood.

Mr. LAUTENBERG. I suggest the absence of a quorum.

Mr. LAUTENBERG

Mr. LAUTENBERG. Mr. President, I rise today to welcome the Reverend Monsignor Robert J. Fuhrman to the Senate. Monsignor Fuhrman hails from Saddle River, NJ, and we are very happy that he is joining us today as the Senate's guest Chaplain. Monsignor Fuhrman was ordained to the priesthood in 1981. He received his bachelor's degree from Seton Hall University in 1977 and he currently serves as pastor at St. Gabriel the Archangel Church in Saddle River. He is also currently on the board of directors of the Society for the Propagation of the Faith, which is a mission support agency of the Catholic Church. In this capacity he has daily contact with missionaries providing important services in developing countries around the world. I am always excited when we can welcome someone from New Jersey to the Senate Chamber and I am honored to welcome Monsignor Robert J. Fuhrman to lead us in our morning prayer.

Mr. LAUTENBERG

Mr. LAUTENBERG. I thank the Chair. Mr. President, I wish to take an opportunity to discuss the appointment of Miguel Estrada to the circuit court and to raise an objection I share with other colleagues on this side of the aisle. I come out of the business world. I think of how I might react if I were interviewing a senior executive candidate, and if that individual refused to answer relevant questions about his experience or her views, or what kind of a life attitude had developed in that person's mind, I sure would not be putting them on my payroll. To respond to our colleague from Georgia who raises legitimate questions about why there is opposition on our side, the Senator challenges the fact that Mr. Estrada's lack of experience--I think if I heard him correctly--could even be an asset. The Senator also alluded to the fact he came here without experience. I certainly did. I came here directly from the business community. I came here without experience. He and I and the occupant of the Chair have a job that is less than permanent. My colleague from Georgia and my colleague in the Chair got here because they terminated someone else's tenure in office. If that was the condition, if we were not talking about a lifetime appointment, we would not be having this debate, in my view. I am sure we would have had a vote and probably approved for Mr. Estrada to assume the appeals court bench. That is not the case. Nor is it the case that the advise and consent relationship of a recommendation that comes from the President means automatic consent. We are supposed to take these responsibilities seriously. I am not a lawyer, but I feel the full measure of a democracy is the way justice is dispensed. We have a separation of powers to make sure there are checks and balances. That is why we protect the judiciary from being tossed out of office willy-nilly. They are able to exercise their will and exercise it to the best of their ability. But we have an obligation to confirm what the best of their ability is. I am not happy about entering this discussion like this because I do have respect for colleagues on the other side of the aisle. I think they should have every right to add their views of support, to register those views as diligently and as forcefully as we have seen. This is a two-way street. When a Democratic President sent up nominations, the delays were interminable. We heard last night about 1,500-day delays without being able to get a hearing. That is over 4 years. I register my opposition to the confirmation of Mr. Estrada for the Circuit Court of Appeals for the District of Columbia. My opposition stems from several reasons, particularly questions about his unwillingness to come forward to discuss his views, to say to the American people--because they are ultimately the folks who are listening--that he is unwilling to participate in the system as it exists; that he is challenging the advice and consent aspect of the Senate's approval of asserting himself as a viable candidate for the United States Court of Appeals; that he is unwilling to open up his views to the people who are responsible for making the judgment. Last night, I listened eagerly to the debate that took place. I listened to the distinguished chairman of the Judiciary Committee--a friend, someone I have known for a long time--talk about how unfair we are being to the President of the United States in not giving him full recognition of the fact he is the President and he is entitled to make his recommendation. The Constitution is so clear. The Constitution says the nomination has to come to the Senate for advice and consent. That is the process. We are not violating any rule by raising these questions. Last night, it was even insinuated there might be some racial issue tied up here, and that borders on the ludicrous. I point out that the Puerto Rican Legal Defense and Education Fund, the Mexican American Legal Defense and Educational Fund, the National Council of La Raza, NAACP, and the Congressional Hispanic Caucus all oppose Mr. Estrada's nomination. These organizations obviously are not prejudiced against Hispanics. Any illusion, any suggestion, any insinuation that there could be a racial concern here is an outrageous claim. So we are going to leave those comments behind. They are without merit and without consideration. I have real substantial concerns about this nominee. His former supervisor at the Justice Department concluded: He lacks the judgment and is too much of an ideolog to be an appeals court judge. We have a right to hear what his views are. It is especially troubling because we are talking about a nominee to the DC Circuit, the most important court outside the Supreme Court in this country. The DC Circuit overseas enforcement of critical environmental, consumer, and worker protection laws. Three sitting U.S. Supreme Court Justices have come from the DC Circuit. It is an enormously important position and it is, once again, a lifetime position. If we were to do anything except fully exercise our conscience to make sure that we understood as clearly as each one of us has not only the right but the obligation to do to examine what this individual brings to the position, we would be shirking our responsibilities. Last night we heard talk about the fact that the Mexican American Legal Defense and Educational Fund, and other groups, have raised concerns about Mr. Estrada's view on a subject that I am particularly concerned about: racial profiling. The concern is that Mr. Estrada's support for so-called antiloitering laws were actually a guise for racial profiling. Racial profiling is a terrible problem. We had a very difficult time in the State of New Jersey with that issue. I introduced racial profiling prohibition legislation in the Senate, and I am pleased to work with my colleague from Wisconsin, Senator Feingold, on that issue now. Driving while black, walking while Hispanic--we have heard those phrases--should not be crimes. I think the courts must do all they can to prevent this practice. I am worried that Mr. Estrada's views go in another direction. Another major problem with this nominee is that he seems to be hiding the ball, not playing the game the way it ought to be, refusing to discuss his basic legal theories and beliefs. The Constitution does not say the President of the United States has a unilateral right to put anybody he wants to on the Federal bench. Presidential appointments require, as I said before, the advice and consent of the Senate, and that certainly does not suggest automatic consent. We have a constitutional obligation to evaluate the President's choices. As all judicial nominees, Mr. Estrada had his job interview before the Judiciary Committee. At his Judiciary Committee hearings, Mr. Estrada refused to answer important questions. My colleagues who serve on that committee asked the appropriate questions about his judicial philosophy, such as his views on key Supreme Court decisions, but he failed to respond or was unwilling to respond to fundamental and simple questions expected of a nominee before that committee. I mentioned that before I came to the Senate I ran a pretty good sized company, and when we would interview people for important positions in our company we would expect them to be completely responsive to our inquiries. If someone was evasive, refused to answer reasonable questions, we would not hire them. It would not be fair to our shareholders, our customers, and the other employees of the company to hire someone who refused to answer basic questions about how they would handle the job. In the case of Miguel Estrada, we have someone who refused to answer questions regarding his nomination for a lifetime position. We, in the Senate, have a constitutional responsibility to review the nominees fully and have our consciences clear when we decide their fate. This nomination should not move forward because Mr. Estrada has left too many questions unanswered. He has kept many of his views on important legal matters a mystery, and that is not how this process should work. That is not how it is going to work. This has nothing to do with anyone's ethnic background. That is silly. This Democratic caucus is always looking to expand diversity, and everybody knows that. This debate is about a nominee who is not cooperating. If he thinks Roe v. Wade is unsound law, let him say it. If he thinks it is settled law and respects it as a judge, let him say that. I do not think this nominee should move forward until serious questions about his legal philosophy have been answered. Some of my colleagues on the other side act as if this is unprecedented for a Presidential nominee to not receive a vote, but there were Clinton nominees who could not even receive a hearing, no less a vote. I wish to remind the Senate of some of the names we heard from our Democratic whip the other day, people such as Judith McConnell, John Tait, John Snodgrass, Patrick Toole, Wenona Whitfield, Leland Shurin, John Bingler, Bruce Greer, Sue Ellen Myerscough, Cheryl Wattley, Michael Schattman, James A. Beaty, Jr.; J. Rich Leonard, Anabelle Rodriguez-Rodriguez, Helene White, Jorge Rangel, Jeffrey Coleman, James Klein, Robert Freedberg, Lynette Norton, Robert Raymar, a fellow from New Jersey whose name came up, could not get a hearing, Legrome Davis, Lynne Lasry, Barry Goode, H. Alston Johnson, James Duffy, Elana Kagan, James Wynn, Kathleen McCree-Lewis, Enrique Moreno, James Lyons, Kent Markus, Robert Cindrich, and the list of those who waited for such long periods is rather lengthy. We are talking about 57 nominees who were never allowed votes by the Republican-controlled Senate: 31 circuit and 48 district judges, 57 of those never allowed votes; 31 circuit court nominees, 22 blocked from getting a vote or being confirmed. There is person after person. One person waited more than 1,500 days, Helene White, never to be allowed a hearing or a vote. Richard Paez waited more than 1,500 days, finally confirmed. The list goes on. So when I hear the complaining about how unfair the Democrats have been, I just say look back over our shoulder not too long ago and see the number of people who waited and waited and could not get any attention at all. Mr. Estrada is getting attention, a lot of attention, and if he was responsive appropriately, I am positive a vote would have taken place and we would all have registered our opinion. I yield the floor.

Mr. LAUTENBERG

Mr. LAUTENBERG. Mr. President, I rise to introduce the Safe and Secure Skies Act of 2003, a bill that would protect the safety and security of the flying public by requiring that air traffic control remain a government function. This legislation is necessary because the Bush administration has taken several steps to privatize our Nation's air traffic control system. On September 11 air traffic controllers across the Nation performed heroically, as they guided thousands of aircraft out of the sky. From the tower at Newark International Airport, air traffic controllers in my State could see the Twin Towers burning as they worked to return tens of thousands of Americans to the ground safely. Like many public servants on that day, they are heroes. Along with police, firefighters, and other emergency personnel, these public employees gave 110 percent to secure the safety of the American people. In the aftermath of these tragic events, the American people demanded one thing in particular of their government: they wanted government personnel--not private contract firms--to perform security screening of baggage at our Nation's airports. And Congress compiled with this request, as we turned the privatized baggage screening system over to Federal workers with the new Transportation Security Agency. That is why it is so surprising to me that the administration is now taking steps to privatize the air traffic control system in this country. It makes little sense, especially after September 11. It is the opposite of what the public wants. The safety and security of the American people should not be the responsibility of the lowest bidder. Rather, it is a core responsibility of government. But the administration is moving rapidly in the opposite direction. Already we have seen the jobs of air traffic control specialists--those who repair, inspect, and maintain the air traffic control system-- opened up to outsourcing. And the administration just completed a ``feasibility study'' of privatizing the jobs of flight service station controllers--the experts who provide critical weather, safety, and security alerts to pilots. Next on the agenda for the administration are the air traffic controllers, who monitor and guide thousands of aircraft every day over the United States. The administration has already proposed air traffic controller privatization in two of its annual budgets. In June 2002, President Bush issued an executive order stripping air traffic services of its ``inherently governmental'' status. And in December 2002, the administration issued a document designating air traffic control a ``commercial'' activity, opening the door to contracting out the jobs of air traffic controllers to the lowest bidder. This change from ``inherently governmental'' to a ``commercial'' function is more than a technical change--``inherently governmental'' functions can never be privatized, while ``commercial'' functions may be outsourced. The administration is trying to accomplish its privatization plan under the public's radar screen through the Office of Management and Budget's A-76 process. We in Congress have the power to stop this process and the bill I am introducing today will reverse the administration's plan. My Safe and Secure Skies Act will return air traffic control functions to ``inherently governmental'' status, thus barring any privatization action. I do want to note, however, that my legislation will not affect the existing FAA ``Contract Tower'' program, which involves some small, visual flight rules airports. We currently have the best air traffic control system in the world. Over 15,000 dedicated Federal air traffic controllers guide more than 2 million passengers a day home safely. Maintaining and inspecting the system are over 11,000 air traffic specialists, and nearly 3,000 flight service station controllers provide critical information and alerts to pilots. They are expert professionals who perform under pressure every day to keep our skies safe. I believe our air traffic controllers are almost a wing of the military, and they play a major role in homeland security. When President Bush gave the State of the Union speech last month, it was the flight service station air traffic controllers who sent alerts to avoid the expanded ``no-fly'' zone around Washington. And when the space shuttle Columbia tragically disintegrated in the skies over Texas, it was the air traffic controllers who directed aircraft away from the falling debris field. These men and women perform a critical government function. Some claim that privatization will save money. But when you look at other countries' experiments with air traffic control privatization, all you see are financial messes and safety hazards. Australia, Canada, and Great Britain all have privatized systems that are now in crisis. Costs have gone up and safety has gone down. Since Great Britain adopted privatization, near misses have increased by 50 percent and delays have increased by 20 percent. The British Government has already had to bail out the privatized air traffic control company twice. Privatization of the air traffic control system is bad fiscal policy, bad safety policy, bad homeland security policy, and the public doesn't want it. I therefore ask my colleagues to support my Safe and Secure Skies Act, which will declare these critical air traffic control functions to be ``inherently governmental'', and therefore not eligible for outsourcing. The safety of our skies should not be put in the hands of the lowest bidder.

Mr. LAUTENBERG

Mr. LAUTENBERG. Mr. President, I rise to introduce the Safe and Secure Skies Act of 2003, a bill that would protect the safety and security of the flying public by requiring that air traffic control remain a government function. This legislation is necessary because the Bush administration has taken several steps to privatize our Nation's air traffic control system. On September 11 air traffic controllers across the Nation performed heroically, as they guided thousands of aircraft out of the sky. From the tower at Newark International Airport, air traffic controllers in my State could see the Twin Towers burning as they worked to return tens of thousands of Americans to the ground safely. Like many public servants on that day, they are heroes. Along with police, firefighters, and other emergency personnel, these public employees gave 110 percent to secure the safety of the American people. In the aftermath of these tragic events, the American people demanded one thing in particular of their government: they wanted government personnel--not private contract firms--to perform security screening of baggage at our Nation's airports. And Congress compiled with this request, as we turned the privatized baggage screening system over to Federal workers with the new Transportation Security Agency. That is why it is so surprising to me that the administration is now taking steps to privatize the air traffic control system in this country. It makes little sense, especially after September 11. It is the opposite of what the public wants. The safety and security of the American people should not be the responsibility of the lowest bidder. Rather, it is a core responsibility of government. But the administration is moving rapidly in the opposite direction. Already we have seen the jobs of air traffic control specialists--those who repair, inspect, and maintain the air traffic control system-- opened up to outsourcing. And the administration just completed a ``feasibility study'' of privatizing the jobs of flight service station controllers--the experts who provide critical weather, safety, and security alerts to pilots. Next on the agenda for the administration are the air traffic controllers, who monitor and guide thousands of aircraft every day over the United States. The administration has already proposed air traffic controller privatization in two of its annual budgets. In June 2002, President Bush issued an executive order stripping air traffic services of its ``inherently governmental'' status. And in December 2002, the administration issued a document designating air traffic control a ``commercial'' activity, opening the door to contracting out the jobs of air traffic controllers to the lowest bidder. This change from ``inherently governmental'' to a ``commercial'' function is more than a technical change--``inherently governmental'' functions can never be privatized, while ``commercial'' functions may be outsourced. The administration is trying to accomplish its privatization plan under the public's radar screen through the Office of Management and Budget's A-76 process. We in Congress have the power to stop this process and the bill I am introducing today will reverse the administration's plan. My Safe and Secure Skies Act will return air traffic control functions to ``inherently governmental'' status, thus barring any privatization action. I do want to note, however, that my legislation will not affect the existing FAA ``Contract Tower'' program, which involves some small, visual flight rules airports. We currently have the best air traffic control system in the world. Over 15,000 dedicated Federal air traffic controllers guide more than 2 million passengers a day home safely. Maintaining and inspecting the system are over 11,000 air traffic specialists, and nearly 3,000 flight service station controllers provide critical information and alerts to pilots. They are expert professionals who perform under pressure every day to keep our skies safe. I believe our air traffic controllers are almost a wing of the military, and they play a major role in homeland security. When President Bush gave the State of the Union speech last month, it was the flight service station air traffic controllers who sent alerts to avoid the expanded ``no-fly'' zone around Washington. And when the space shuttle Columbia tragically disintegrated in the skies over Texas, it was the air traffic controllers who directed aircraft away from the falling debris field. These men and women perform a critical government function. Some claim that privatization will save money. But when you look at other countries' experiments with air traffic control privatization, all you see are financial messes and safety hazards. Australia, Canada, and Great Britain all have privatized systems that are now in crisis. Costs have gone up and safety has gone down. Since Great Britain adopted privatization, near misses have increased by 50 percent and delays have increased by 20 percent. The British Government has already had to bail out the privatized air traffic control company twice. Privatization of the air traffic control system is bad fiscal policy, bad safety policy, bad homeland security policy, and the public doesn't want it. I therefore ask my colleagues to support my Safe and Secure Skies Act, which will declare these critical air traffic control functions to be ``inherently governmental'', and therefore not eligible for outsourcing. The safety of our skies should not be put in the hands of the lowest bidder.

Mr. LAUTENBERG

Mr. LAUTENBERG. Mr. President, if the Senator from Alaska will yield, I think there is an understanding that I am going to modify the amendment I have at the desk.

Mr. LAUTENBERG. I thank the manager. Amendments Nos. 6, 83, 85, 131, 136, 144, 156, 172, 150, 199, 186, 142, 178, 57, 167, 166, and 188, As Modified

Mr. LAUTENBERG. I thank the manager. Amendment No. 192, As Modified

Mr. LAUTENBERG. Mr. President, I call up my amendment, which is at the desk.

Mr. LAUTENBERG. I thank the Chair. The authorization level under the Superfund law for this year is $11.5 billion. The bill before us provides $1.27 billion. Of that amount, 50 percent comes from the Superfund trust fund and the rest comes from general revenues. There is now about $120 million in unobligated funds left in the Superfund trust fund. My amendment takes $100 million of that and adds it to the $1.27 billion so that we can increase the number of contaminated sites we will be cleaning up, but also to give some encouragement to a group of highly trained professionals so they can look to a continuation of a career that has been devoted to getting these sites cleaned up. My amendment doesn't fully fund the program, but because the average cost of cleanup in a normal Superfund site is $12 million, this $100 million could help protect eight more communities from contaminated ground water and toxic soil in their neighborhoods. From the beginning, an important principle of Superfund has been that those responsible for the contamination should pay for the cleanup. The polluters--not the general public--should pay. In keeping with this principle, my amendment draws only from the trust fund, not from general revenues. Unfortunately, it seems that some have lost sight of the ``polluter pays'' principle at the heart of the Superfund program. In the appropriations bill before us, taxpayers, not polluters, would pay for 50 percent of the cleanup program. This simply isn't fair to our Nation's taxpayers. But the ``polluter pays'' principle is fair. It has worked, and it should be preserved. Yet the tax on petroleum and chemical products-- the sources of contamination at most Superfund sites--has been allowed to lapse. We need to reauthorize the funding source and reinstate a dependable revenue stream for the program, but that is a debate for another day. In the interim, we have to do more with what we have. In the 4 years leading up to the year 2000, an average of 87 Superfund were being cleaned up each year. Since then, the number has dropped by half: 42 sites cleaned up in 2001 and 47 sites cleaned up in 2002. This isn't acceptable nor is it responsible. Adequate funding for Superfund is a very serious matter for the people of my home State of New Jersey. My State has 113 hazardous waste sites on the National Priority List (NPL)--more than any other State. But I would quickly point out this isn't simply an urban-State problem. The largest Superfund site in the country right now is in Coeur d'Alene, ID, one of the most beautiful States in our country. And yet there is this blight in their midst. And we see the same thing in Montana, another rural mountain State, so beautiful with nature's blessing.

Mr. LAUTENBERG. Sure.

Mr. LAUTENBERG. Mr. President, I thank the Senator from California. We have worked diligently together to try to turn these Superfund sites from environmental and health hazards into productive properties for the affected communities. I yield to the Senator from Vermont.

Mr. LAUTENBERG. I thank the Senator from Vermont.

Mr. LAUTENBERG. Yes. I yield to my colleague.