Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to join Senator Specter, who is chairman of the Judiciary Committee, Senator Feinstein, and others in urging my colleagues to move to this bipartisan bill. Speaking of asbestos-related diseases, it is time for us to solve this dire situation. Victims have been waiting long enough for a comprehensive national solution. We have looked at this. The Senator from Nevada spoke of those who have suffered from silicosis. If we are going to talk about families, my grandfather, Patrick J. Leahy, a stonecutter in Barre, VT, died of silicosis of the lungs long before I was born. I never got to know my grandfather. My other grandfather, Pietro Zambon, immigrated to this country from Italy. He died of the same disease. We are not neglectful in that. We are well aware of it. We have designed this bill in such a way that those victims are not shut out. This legislation is a product of years of difficult, conscientious negotiation. Built on what was done last Congress under former Chairman Orrin Hatch, we have crafted a fair and efficient plan that is going to ensure adequate compensation of thousands of victims of exposure, but it also gives due consideration to the businesses that should and will provide that compensation. Asbestos has wreaked havoc on the lives of many, but it has also overwhelmed our Nation's court systems as it tries to compensate them. We can talk about who gives and who doesn't. The fact of the matter is, the victims are the ones we should be most concerned about, and many of the victims--thousands of the victims in this country will get nothing unless this bill passes. Senator Specter rightly calls this one of the most complex issues we have ever tackled. Look around the Chamber of the Senate. Of those who are here, I have been here the longest. Actually, only six Members of the current Senate have been here longer than I. I have not seen in that 31 years anything more complex. Does that mean this is the bill I would have written? No. And it is not the bill Senator Specter would have written. It is a bill, though, that had to bring enough people together to pass. It should not surprise anyone to hear the interested groups, including labor, some of the businesses contributing to the trust fund, and their insurers, and the trial bar are each less than pleased with one part or the other. But that is the essence of legislative compromise, something I have learned in three decades. We have kept the ultimate goal of fair compensation to the victims as the lodestar of our efforts. We have all had to make compromises on a variety of subsidiary issues to get this far, but we have achieved a significant and needed step toward a more efficient and more equitable method to compensate these victims. Right now, the fact is that only 42 cents out of every dollar spent on the burgeoning dockets of litigation in this area actually goes to the victims. That is a national disgrace. We can and must do better for all involved in this crisis. America can do better. These victims need our help, and they need it now. This is, after all, one of the most lethal substances ever to be widely used in the workplace. Between 1940, when I was born, and 1980, more than 27.5 million workers were exposed to asbestos, and nearly 19 million of them had high levels of exposure over long periods of time. We know of some people who suffer from this illness because they washed the clothes of their loved ones who worked in these areas. They have been ravaged. The economic harm caused by this, and the resulting bankruptcies, are a different kind of tragedy for everybody--for the workers and retirees, for shareholders, but also for the families who built these companies. In my home State of Vermont, the Rutland Fire and Clay Company is among the more than 70 companies that have declared bankruptcy due to asbestos liabilities. Do you think those victims are going to recover anything without this legislation? The late Chief Justice Rehnquist declared the elephantine mass of cases cries out for a legislative solution. In additional opinions written by Justice Ginsburg, the Supreme Court has repeatedly called on Congress to act because ``a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims.'' I agree. Our committee chairman agrees. The Judiciary Committee members on both sides of the aisle agree, and we hope others in the Senate will agree. I am worried when I hear veterans being criticized for supporting this. They are brave. They are concerned that they have been badly injured, and they know this legislation will help them. Why shouldn't they support it? These brave veterans know they are not going to get any help otherwise. Does business support it? The 600,000 members of the National Federation of Independent Businesses do, as well as hundreds of larger companies which are going to have to contribute. Senator Specter has spoken of this, but think what we do in our bill. It is a distinct improvement over previous bills. We provide higher compensation awards for victims, with $1.1 million awards for victims of mesothelioma, $300,000 to $1.1 million to lung cancer victims, $200,000 for victims of other cancers caused by asbestos, $100,000 to $85,000 for asbestosis, and $25,000 for what we call mixed-disease cases, as well as medical monitoring and all the things he spoke of. I am going to speak further on this as we go on. I suspect there will be more talk on it. But I hope Senators will allow this bill to go forward, will allow us to have a vote on it. As the Senator from Pennsylvania noted, we have other major things going on. I have been involved in that all day. I must admit, though, to the distinguished majority leader, if the Chair will permit me to note, I may have other things going on. We have other things going on in our family at this moment. I hope we are about to enlarge our family at this moment. With that, I hope neither of our leaders will mind, but the senior Senator from Vermont is going to go home and hopefully sometime in the next few hours be together with the latest member of the Jackson and Leahy family. I yield the floor.

Mr. LEAHY. Mr. President, there has been some question about--and I think I am fortunate--comments suggesting motivation of veterans who support this legislation. A lot of veterans support this legislation. A lot of veterans have been badly damaged by exposure to asbestos, and they have no way of seeking compensation except in this legislation. A lot of labor unions feel the same way. These are not the so-called K Street lobbyists, these are not special interests; these are people who care about those they represent, the veterans they represent, the workers they represent. I ask unanimous consent that these letters of recommendations be printed in the Record, and I will name them: A letter from the Military Order of the Purple Heart, another signed by the Air Force Sergeant Association, American Ex-Prisoners of War, Blinded American Veterans Foundation, Blinded Veterans Association, Fleet Reserve Association, Jewish War Veterans of the USA, Marine Corps League--my son is a former marine--Military Officers Association of America, National Association of Black Veterans, Noncommissioned Officers Association, National Association of Uniformed Services, National Association of State Directors of Veterans Affairs, Paralyzed Veterans of America, Pearl Harbor Survivors Association, Retired Enlisted Association, Veterans of the Vietnam War, Inc., Veterans of Foreign Wars of the United States, Women in Military Service for America, Memorial Foundation, Inc., the U.S. Submarine Veterans, Inc., Lockwood Internet Base, U.S. Submarine Veterans of World War II, U.S. Submarine Veterans Base Rhode Island, U.S. Submarine Veterans World War II Thames River Chapter, U.S. Submarine Veterans World War II Central Connecticut Chapter, the UAW, the Heat & Frost Insulators & Asbestos Workers International, the International Union of Painters and Allied Trades, the Governors of Alaska, Arkansas, Michigan, Mississippi, Missouri, Montana, Ohio, Utah, and Vermont, and the National Federation of Independent Business, NFIB. Those are among some of those.

Mr. LEAHY. Mr. President, both the distinguished senior Senator from Pennsylvania and I have been tied up much of today in a matter involving wiretapping of Americans and other issues. We will be going back to that. I know the Senator from Pennsylvania is returning to the committee. I am going to ask unanimous consent that the Senator from Illinois be able to have the floor for up to 30 minutes following me. Before I make that request, if I may have the attention of the Senator from Pennsylvania or the Senator from Tennessee, I am going to make the request that the Senator from Illinois, Mr. Durbin--we are all at the same hearing--that the Senator from Illinois, Mr. Durbin, who has a position different to that of mine and the Senator from Pennsylvania, that he be recognized for up to 30 minutes once I complete my comments, unless, of course, either of the leaders object.

Mr. LEAHY

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

Mr. LEAHY. I will not object.

Mr. LEAHY. Mr. President, reserving the right to object, and I apologize, were you referring to 10 minutes for debate on the PATRIOT Act?

Mr. LEAHY

Mr. LEAHY. Mr. President, first, I ask for the yeas and nays.

Mr. LEAHY. Mr. President, the Republican leadership of the House and the Senate has proposed a second extension of the PATRIOT Act to last another 5 weeks until March 10. I support that. I support it because it is basically what Senator Sununu and I proposed in December in the bipartisan S. 2082, cosponsored by 47 Senators from both sides of the aisle. I hope this will allow us to make the final improvements necessary so that the final PATRIOT Act can be passed. I support H.R. 4659, a bill by Chairman Sensenbrenner. I hope all Senators from both sides of the aisle will. I say this because-- notwithstanding the fact that the Senate doesn't even have a modicum of order, I would note, I am prepared to yield back the rest of my time if the place would just hush a tiny bit--it is a vital debate. The terrorist threat to American security is very real. It is vital that we have the tools to protect American security. That is why I coauthored the PATRIOT Act 5 years ago. That is why it passed with broad bipartisan support. I didn't believe it was a perfect piece of legislation, but I thought it was a good piece of legislation. And then the Republican leader in the House, Dick Armey, and I put certain sunset provisions in it so that we would actually look at this again. I think we have done that. We are close to having a final product. After all, our Nation is a democracy. It is based on the principles of a balanced government, which requires something that we have not seen enough of lately--checks and balances. We can do that in this act. I noted earlier this week that I was concerned that the Republican congressional leadership had not even proposed to the Senate Democratic leadership or to that of the Judiciary Committee that action be taken to ensure that certain sunsetting provisions of the USA PATRIOT Act not be allowed simply to expire at the end of this week. Thereafter, action was finally considered. Yesterday the House passed a bill to extend the sunsetting provisions until March 10, 2006. I support H.R. 4659, Chairman Sensenbrenner's bill. Those of us working constructively and in a bipartisan way to extend the USA PATRIOT Act with improvements have repeatedly offered to meet to work out the remaining differences. Regrettably, the Senate leadership has not made the effort to work through the remaining concerns or to bring us together. I was concerned because as recently as last week leading Republicans were indicating that they opposed another short-term extension that could be used to work out improvements that can lead to longer term Senate reauthorization. I was concerned that the demagoguery we had witnessed from the White House and House Republicans would be repeated, but that this time it would have real consequences. Last December, even though a majority of Senators--Republicans and Democrats, those who voted against cloture on the conference report that failed to pass the Senate and those who voted for it urged the Republican leader to act on a short-term, 3- month extension before the end of the last session. At that time the President had said that he would not approve a short-term extension, and House Republicans had said that they would not allow a short-term extension. Those who threatened to let it expire were playing a dangerous political game. Fortunately, common sense prevailed, and in the waning days of the last session, just before adjournment for Christmas, the House approved a short-term extension until February 3, and the President reversed his earlier position and signed it into law. Now the Republican leadership of the House and Senate is proposing a second extension that will last for another 5 weeks, until March 10. That is in line with the initial bipartisan proposal that Senator Sununu and I made in S. 2082, back on December 12, that came to be cosponsored by 47 Senators. It is my hope that this will allow us the opportunity to work out improvements to the reauthorization legislation to better protect the liberties and rights of ordinary Americans. We should do our best to get it right for all Americans. I have continued meeting and talking with interested Republican and Democratic Senators. Senate staff has finally gotten together this week in a bipartisan meeting. I have joined in a bipartisan request to the majority leader that he bring together key interested Senators to work out a bipartisan compromise that improves the failed conference report. Contrary to the false claims and misrepresentations by some, there was no effort on either side of the aisle to do away with the PATRIOT Act. That is simply and profoundly not true. Along with others in the Senate, I am seeking to mend and extend the PATRIOT Act, not to end it. There is no reason why the American people cannot have a PATRIOT Act that is both effective and that adequately protects their rights and their privacy. The only people who ever threatened an expiration of the PATRIOT Act were the President and House Republicans. As I noted on December 21, the administration and the Republican congressional leadership were those who were objecting to extending the act and threatening its expiration. That was wrong. That made no sense. They came to their senses in the days that followed. In his State of the Union speech this week the President said only that reauthorizing the PATRIOT Act was needed to provide the same tools we provide to law enforcement authorities to fight drug trafficking and organized crime. I have worked with others to provide additional tools in the fight against terrorism. With others on both sides of the aisle, I also want to protect the liberties of ordinary and law-abiding Americans from overreaching and unchecked Government intrusion. Permanent gag orders and conclusive presumptions in favor of the Government, when intrusive demands for library records or personal medical records are being made by agents without court approval, smack of a police state, not the United States. Republican and Democratic Senators joined together last month to say we can do better to protect Americans' liberties while ensuring that our national security is as strong as it can be. In the days after 9/ 11, the Senate Democratic majority joined with Republicans and the administration in bipartisan action. Unfortunately, the President's political adviser Karl Rove and other Republican partisans have sought to make the PATRIOT Act a partisan issue. I urge them, instead, to join with our bipartisan coalition and work with us to provide a better balance to protect the rights of ordinary Americans. Every single Senator--Republican and Democratic--voted last July to mend and extend the PATRIOT Act. That bipartisan solution was cast aside by the Bush administration and Republican congressional leaders when they hijacked the conference report, rewrote the bill in ways that fell short in protecting basic civil liberties, and then tried to ram it through Congress as an all-or-nothing proposition. I have joined with Senators of both parties in an effort to work to improve the bill. Some of us are working hard to protect the security and liberty of Americans. What is wrong is for the White House to seek to manipulate this into a partisan fight for its partisan political advantage. Instead of playing partisan politics, the Bush administration and Republican congressional leadership should join in trying to improve the law. Especially when security and liberty are at issue, why not make the extra effort to produce a consensus bill that can deserve the confidence of the American people? This is a vital debate. The terrorist threat to America's security is very real, and it is vital that we be armed with the tools needed to protect Americans' security. At the same time, the threat to civil liberties is also very real in America today. The question is not whether the Government should have the tools it needs to protect the American people. Of course it should. That is why I coauthored the PATRIOT Act 5 years ago, and that is why that act passed with broad bipartisan support. When I voted for the PATRIOT Act, I did not think it was an ideal piece of legislation, and I knew that it would need careful oversight and, in due course, reform. This is about how to reconcile two fundamental goals--ensuring the safety of the American people and protecting their liberty by means of a system of checks and balances that keeps the Government--their Government-- accountable. Those goals should not be the goals of any particular party or ideology, they are shared American goals. Our Nation is a democracy, founded on the principles of balanced government. We need to restore checks and balances in this country to protect us all and all that we hold dear. Our Congress and our courts provide checks on the abuse of executive authority and should protect our liberties. We need to write the law so that Congress has provided its check in the law and so that courts can play their role, as well. All Americans need to take notice and demand that their liberties and security be properly and effectively maintained. I see the senior Senator, my good friend from Pennsylvania, on the floor. I will yield back the rest of my time.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier this morning, the Judiciary Committee held a hearing on the consolidation of the energy industry. Regretfully, due to a scheduling conflict, I was unable to attend the hearing which was noticed only 1 week ago. I come to the floor this afternoon because this is an issue that needs to be addressed, not only by me, or the Committee, but by this entire body. The exorbitant cost of fuel is one of the most critical issues facing our nation. Strong leadership by this Congress is needed to help all of the Americans whose pockets are being emptied by the skyrocketing costs of fuel. Consumers, small businesses, farmers, families trying to heat their homes in the cold winter months, senior citizens on limited incomes, every community in this country has felt the pinch of trying to keep up with energy costs. Everyone has suffered--or rather, almost everyone. The day before yesterday, the big oil companies posted their year-end profit reports for 2005. The five biggest--ExxonMobil, ChevronTexaco, ConocoPhillips, BP, and Shell--trumpet raking in record profits for the year. In fact, ExxonMobil, with $36.7 billion in profit last year, turned the highest yearly profit in U.S. history for any business. We did not hear from these companies today because they have declined to appear at this hearing. I am disappointed by their decision. Boycotting this hearing will not stifle our questions or the need for their accountability to Congress and American consumers. The chairman has announced a second hearing for the end of this month, and the executives from the oil companies will attend, whether voluntarily or in answer to subpoenas. We will not rest in our effort to understand, and then correct, the problems in the energy markets. On its face, the deplorable issue here is not the unprecedented profits garnered last year. Surely, any business the size of these corporations could produce a high yield selling their product at $60 a barrel. Rather, the striking issue here is how these profits compare with years past. For example, since 1999, oil refiners have seen a 334 percent increase in yield made on each gallon of gasoline refined. Moreover, these same companies have more than doubled their control over oil production. Time and time again, oil companies have defended startling statistics such as these. They claim that increased costs for production, exploration, and meeting environmental standards justify increasing prices at the pumps. This is obscene. I say it is time to invest in the American people. We need to investigate excessive market concentration in the oil industry that is stifling competition, constricting supply, and ultimately harming consumers. And then we need to do something about it. I was glad to hear the President sounding like a Democrat on energy last night in his State of the Union speech. I can only hope that his words mean that he has finally abandoned the failed policy of the Cheney energy task force that had worked in secret with Ken Lay and other energy industry bigwigs. Had we adopted the Democratic energy proposal on which Senator Bingaman and others have worked so hard over the last several years, we would be much farther along. Nonetheless, we welcome the President and, I hope, some congressional Republicans to the Democratic emphasis on alternative and renewable fuels. After all that the Bush administration and the Republican leadership have done to advance the interests of the oil companies, including the attempts by House Republican leadership to insert special interest provisions in conference reports to give oil companies immunity for the environmental and health damage they cause, this reversal of position would be a good development for the American people. Along with conservation, renewable energy is a key to a cleaner, more efficient energy future. If the President would work with us and follow through with sensible proposals, we can forge a bipartisan partnership. Working together, we can do better to make this a safer more energy efficient and more prosperous country. I along with the rest of America will be watching to see if these statements are reflected in the President's policies and budget request, however. We need to relieve America's dependence on foreign oil. Although the Mideast is not the source of the majority of our energy, its share has grown during this administration. I also urge the President and the Republican leadership of Congress to work with us to relieve our dependence on foreign investors and on borrowing from Social Security to finance the record deficits and growing debt that their policies have created.

Mr. LEAHY

Mr. LEAHY. Mr. President, one of the many things one learns as a Senator is that speaking out about autocratic, corrupt and abusive governments invariably elicits a response. The victims of such regimes, including human rights and prodemocracy citizens who are often imprisoned and tortured, express their appreciation. Knowing that they have supporters halfway around the world gives them hope. The officials of those governments and their supporters respond differently. Knowing that they cannot honestly defend their ill gotten gains and abuse of power, they do what they can do. They attack the messenger. And they do so through distortion and outright fabrication. I have made several statements about the troubling situation in Nepal, a poor country with the most majestic mountains on Earth, which has received too little attention by the Congress. It is a country struggling against a determined Maoist insurgency that has brought extortion, brutality and false promises of a better future to virtually every province. And it is a country in which an autocratic monarchy has sought to consolidate its grip on power and take the country backwards after a decade of fledgling democracy. One year has passed since last February 1 when King Gyanendra dissolved the multiparty government, curtailed civil liberties, and imprisoned political opponents. He has ignored appeals of the United States, India, and Great Britain, as well as the United Nations, to negotiate with the leaders of Nepal's political parties on a plan to restore democracy. When the Maoists unilaterally announced and then extended a 4-month cease-fire, the army and the palace rejected out of hand the suggestion that reciprocating could test the Maoists' intentions and possibly create an opening for dialogue to end the conflict. What we are witnessing in Nepal is, put simply, a struggle between the discredited, anachronistic past, and the possibility of a democratic future. There is also a third possibility. A Maoist government that imposes its will on whomever remains in Nepal after a mass exodus, and which further destabilizes an already troubled region. Predictably, those who have enjoyed the undeserved benefits of absolute power and privilege want to hold on to what they have. They seem to believe that the Maoists can be defeated by military force. As desirable as that might be, there is no evidence to support it. Those who see the King's repressive policies as reckless and playing into the hands of the Maoists, have risked their freedom and their lives by calling for an inclusive democratic process. And, as the situation continues to deteriorate, calls for a republic are growing louder. On January 2, the Maoists ended their cease-fire by triggering bombs in several locations. A few days later they killed 12 police officers in Katmandu. They have carried out attacks in Nepalganj and other cities, causing civilian casualties. A week ago, in an apparent attempt to derail the controversial municipal elections scheduled for February 8, gunmen who are suspected of being Maoists killed a promonarchy party member in the city of Janakpur. These brutal acts should be universally condemned. There is absolutely no justification for the use of violence to terrorize civilians or to disrupt an election. But neither can it be said that the United States has an effective policy when it appears to amount to little more than blaming the Maoists and repeating over and over that the King should reach out to the political parties. He should, but for almost a year he has refused to do so and absent stronger pressure there is no reason to believe that he will. It also begs the question of what is the legitimate role in the 21st century for a monarchy that has squandered its moral authority and shown no competence for governing. Three weeks ago, in the King's latest attempt to quell mounting public criticism of his failed policies, the palace announced a preemptive curfew and a ban on political demonstrations. Since then, hundreds of prodemocracy citizens, including several political party leaders, have been imprisoned around the country. Two weeks ago, the police used tear gas and water cannons to break up a rally in Katmandu, and more political protesters were arrested. The former Prime Minister remains in custody after a widely ridiculed ``trial'' by the King's hand picked anticorruption commission. The Nepali people want peace. But nearly a year after King Gyanendra justified his power grab as necessary to defeat the Maoists, they are stronger and peace is more elusive. As many others have said, the only viable way forward is through dialogue, including the Maoists, under United Nations or other international auspices, with the clear purpose of developing a broadly accepted plan to restore and strengthen democracy. To those of Nepal's ruling class who in various opinion pieces have distorted my words, mischaracterized my record and questioned my motives, I can only say that sooner or later they will have to face reality. They could help save their country, but not if they continue to bury their heads in the sand and malign those whose only desire is to see a democratic, peaceful Nepal. Nepal is a beautiful country with a remarkable culture. Its people, as resilient as they are, do not deserve the hardships of caste discrimination, poverty and violence that they endure daily. The Maoists have shown no respect for the rights of civilians. But neither has the King shown that he has a workable plan to stop Nepal's downward spiral. His decision to hold municipal elections has only widened the gap between himself and the leaders of the political parties who were never consulted, who see this latest move as part of a calculated strategy to consolidate his power, and who have said they won't participate. Far more creative and persuasive leadership is urgently needed in Nepal, including from the army, as well as from the United States, India, China and other friends of Nepal, to prevent a tragic situation from becoming a disaster.

Mr. LEAHY

Mr. LEAHY. Mr. President, on this rainy morning in our Nation's Capital, we just learned the sad news of the passing of Coretta Scott King. We are reminded again of the crucial role our courts played in making real the promises of our national charter, the Constitution. It was the courts to whom Dr. Martin Luther King spoke, and they responded. The Nation mourns the loss of another civil rights leader and is reminded again of the vital role our courts play as the place where ordinary Americans can turn for justice when justice is denied them. Coretta Scott King and her late husband, Dr. Martin Luther King, Jr., put their lives on the line to bring those promises to untold millions of Americans. Let us never squander or take for granted all that has been achieved. Let us keep their dream alive. That is why, since this debate began last Wednesday, I posed the fundamental question this nomination raises: whether the Senate is going to serve its constitutional role as a check on the President by preserving the Supreme Court as a constitutional check on the expansion of Presidential power. This nomination now before us is an unacceptable threat to the fundamental rights and liberties for all Americans now and for generations to come. This President is in the midst of a radical realignment of the powers of the Government and its intrusiveness into the private lives of Americans. I am concerned that if confirmed, this nominee is going to further erode the checks and balances that have protected our constitutional rights for more than 200 years. This is a crucial nomination, one that can tip the balance of the Supreme Court radically away from constitutional checks and balances and from the protection of Americans' fundamental rights. The vote that the Senate is about to take has real consequences, not just for the 100 of us in this body but for 295 million Americans. We stand in their shoes. We stand in the shoes of generations to come. The vote will determine whether Samuel Alito, Jr., replaces Justice Sandra Day O'Connor on the Supreme Court of the United States. A vote for this nomination is a vote against constitutional checks and balances. A vote for this nomination is a vote against maintaining the fundamental rights and liberties of ordinary Americans. Republican Senators have pretended that judicial philosophy and personal views do not matter because judges simply apply the rule of law, as if it were some mechanical calculation. Personal views and judicial philosophy often come into play on close and controversial cases. We all know this to be true. Why else did Republican supporters force President Bush to withdraw his previous nominee for this vacancy, Harriet Miers, before she even had a hearing? It mattered to them when the nominee was Harriet Miers. And it matters now. The only difference is that those who hounded Harriet Miers to withdraw are confident that Judge Alito will pass their litmus tests. Harriet Miers failed their litmus tests because, despite all the backroom whispers and public winks and nods, her conservative opponents were not confident that she would rule the way they wanted. Those from among the President's supporters who castigated Ms. Miers wanted certain results. The President allowed his choice to be vetoed by an extreme faction within his party, before hearings or a vote. As Chairman Specter has said, they ran her out of town on a rail. Like the more than 60 moderate and qualified judicial nominees of President Clinton on whom Republicans would neither hold hearings or votes--by what was in essence a pocket filibuster. They do not want an independent federal judiciary. They want certain results. The President says he is fulfilling a campaign promise. I remind him of his biggest campaign promise to be a uniter and not a divider. He could have nominated so many people who would have united this country, would have gotten 90 to 100 votes in the Senate. Republicans and Democrats would have felt united, and the country would have felt united. But instead of uniting the country through his third choice-- and this was his third choice--to succeed Justice O'Connor, the President has chosen to reward a faction of his party at the risk of dividing the country. Those so critical of his choice of Harriet Miers were the very people who rushed to endorse the nomination of Judge Alito. Unlike what has been said on this floor, the criticism of his choice of Harriet Miers came from the Republican Party. But instead of rewarding his most virulent supporters, the President should have rewarded the American people for the unifying choice that would have broad support. Think how much better America could have done. America can do better if we have consultation--here we didn't have it--to select one of the many consensus conservative Republican candidates who could have overwhelmingly been approved by the Senate. Judge Alito was asked at the hearing how he got to this nomination. I think we understand the real answer to that question. It has little to do with Judge Alito's family story and a great deal to do with the pressures that forced the President to withdraw the nomination of Harriet Miers and this President's efforts to avoid any check on his expansive claims of additional powers. This is a President who has been conducting secret and warrantless eavesdropping on Americans for more than 4 years. This President has made the most expansive claims of powers since America's patriots fought the War for Independence to rid themselves of the overbearing power of King George III. He has done so to justify illegal spying on Americans without the essential check of judicial oversight to justify actions that violate our values and laws against torture and protecting human rights, and in order to detain U.S. citizens and others on his say-so--just on his say-so--without any judicial review or due process. This is a time in our history when the protections of Americans' liberties are at risk, as are the checks and balances that have served to constrain abuses of power for more than 200 years. The President wanted a reliable Justice who would uphold his assertions of power, his most extreme supporters want someone who will revisit the constitutional protection of privacy rights, and his business supporters wanted somebody favorable to powerful special interests. A Supreme Court nomination should not be conducted through a series of winks and nods designed to reassure the most extreme factions while leaving the American people in the dark. No President should be allowed to pack the courts, but especially the Supreme Court, with nominees selected to enshrine Presidential claims of Government power. The checks and balances that should be provided by the courts, Congress, and the Constitution are too important to be sacrificed to a narrow, partisan agenda. A Democratic-controlled Senate stood up to Democratic President Franklin Roosevelt when he proposed a Court-packing scheme. The Senate acted as the Senate should and so rarely does today, to say ``no'' to a President. I will not lend my support to an effort by this President to undermine our constitutional checks and balances or to move the Supreme Court radically to the right. The Supreme Court belongs to all Americans, not just the person occupying the White House, not just to a narrow faction of a political party. The President continues to choose confrontation over consensus and to be a divider rather than the uniter he promised Americans he would be. Rather than sending us a nominee for all Americans, the President chose a divisive nominee who raises grave concerns about whether he would be a check on Presidential power and whether he understands the role of the courts in protecting fundamental rights. The Supreme Court is the ultimate check and balance in our system. Independence of the courts and its members is crucial to our democracy and way of life. The Senate should never be allowed to become a rubber stamp, and neither should the Supreme Court. As the Senate prepares to vote on this nomination, we should be mindful of Justice O'Connor's critical role on the Supreme Court. Her legacy is one of fairness I want to see preserved. Justice O'Connor has been a guardian of the protections of the Constitution provides the American people. Of fundamental importance, she has come to provide balance and a check on Government intrusion into our personal privacy and freedoms. In the Hamdi decision she rejected the President's claim he could indefinitely detain a U.S. citizen. She said not even the President is above the law. She upheld the fundamental principle of judicial review. She wrote that even war ``is not a blank check for the President when it comes to the rights of the Nation's citizens.'' The American people deserve a Supreme Court Justice who inspires confidence that he or she will not be beholden to the President, but will be immune to pressures from the Government or from partisan interests. The stakes for the American people could not be higher. The appointment of the next Supreme Court Justice must be made in the people's interest and in the Nation's interest, not partisan interest or the President's interest. It is as the elected representatives of the American people, all the people, that we are charged with the responsibility to examine whether to entrust their precious rights and liberties to this nominee. The Constitution is their document. It guarantees their rights from the heavy hand of Government intrusion and their individual liberties to freedom of speech and religion, to equal treatment, to due process and to privacy. I want all Americans to know that the Supreme Court will protect their rights. I want a Supreme Court that acts in its finest tradition as a source of justice. The Supreme Court must be an institution where the Bill or Rights and human dignity are honored. This is Judge Alito's single moment in his lifetime, the only moment in his lifetime, of accountability before the prospect of a lifetime on our Nation's highest Court. But it is also an accountability moment for each of the 100 Senators in the decision we reach on this crucial nomination because we have to speak for 295 million Americans. I urge all Senators to consult their consciences and their best judgment before casting their votes on this critically important nomination. But, in good conscience, based on the record, I cannot, I will not, vote for this nomination. Mr. President, what is the parliamentary situation?

Mr. LEAHY. Mr. President, obviously I am distressed for many reasons about this nomination, not the least of which is everything Judge Alito said indicated he would not be a check and balance. I so wish--and I have said this to President Bush personally--I so wish he had been a uniter and not a divider. We could be here with a Senate unanimously approving a nominee, instead of this divisive battle. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I yield to the distinguished Senator from Delaware.

Mr. LEAHY

Mr. LEAHY. Mr. President, those of us working constructively and in a bipartisan way to extend the USA PATRIOT Act with improvements have repeatedly offered to meet to work out the remaining differences. Sadly, the Senate leadership has not made the effort to work through the remaining concerns or brought us together. I have continued meeting and talking with interested Republican and Democratic Senators. Senate staff has finally gotten together this week in a bipartisan meeting. I urge the majority leader to bring together key interested Senators to work out a bipartisan compromise that improves the failed conference report. A majority of Senators--Republicans and Democrats, those who voted against cloture on the conference report that failed to pass the Senate and those who voted for it urged the Republican leader to act on a short-term, 3-month extension before the end of the last session. Instead, he chose to proceed with a 6-month extension that Republicans in the House found objectionable. That led to the short extension that is about to expire this week. The President had said that he would not approve a short-term extension. House Republicans had said that they would not allow a short-term extension. But just before Christmas they demanded and enacted a shorter extension than anyone else had proposed. As soon as it became apparent that the conference report filed by the Republican leadership would be unacceptable to the Senate, I joined on Thursday, December 8, in urging a 3-month extension to work out a better bill. On the first day the Senate was next in session, Monday, December 12, Senator Sununu and I introduced such a bill, S.2082. We sent out a ``Dear Colleague'' letter to other Senators on December 13 and that bipartisan bill was cosponsored by 46 other Senators. That bill would have extended the PATRIOT Act until March 31, 2006, to allow us all to work out the remaining differences and improve this reauthorization legislation in ways to better protect the rights of ordinary Americans. It proposed a commonsense solution to allow us to take a few more weeks to get this right for all Americans. Contrary to the false claims and misrepresentations by some, there was no effort on either side of the aisle to do away with the PATRIOT Act. That is just not true. Along with others here in the Senate, I am seeking to mend and extend the PATRIOT Act, not to end it. There is no reason why the American people cannot have a PATRIOT Act that is both effective and that adequately protects their rights and their privacy. The only people who were threatening an expiration of the PATRIOT Act were the President and House Republicans. As I noted on December 21, the administration and the Republican congressional leadership were the ones who were objecting to extending the act and threatening to have it expire. That was wrong. That made no sense. They came to their senses in the days that followed. But now, as we approach the expiration of the current extension this Friday, the Republican congressional leadership has taken no further action and we risk sections of the PATRIOT Act expiring, again. Republican and Democratic Senators joined together last month to say we can do better to protect Americans' liberties while ensuring our national security is as strong as it can be. In the days after 9/11 we acted as Americans, not Democrats, not Republicans. The President's political adviser Karl Rove and the rest of those who are seeking to make the PATRIOT Act a partisan political issue should instead join with our bipartisan coalition and work with us to provide a better balance to protect the rights of Americans. Every single Senator--Republican and Democratic--voted last July to mend and extend the PATRIOT Act. That bipartisan solution was cast aside by the Bush administration and Republican congressional leaders when they hijacked the conference report, rewrote the bill in ways that fell short in protecting basic civil liberties and then tried to ram it through Congress as an all-or-nothing proposition. I have joined with Senators of both parties in an effort to work to improve the bill. Some of us are working hard to protect the security and liberty of Americans. What is wrong is for the White House to manipulate this into a partisan fight for its partisan political advantage. Instead of playing partisan politics, the Bush administration and Republican congressional leadership should join in trying to improve the law. This is a vital debate. The terrorist threat to America's security is very real, and it is vital that we be armed with the tools needed to protect Americans' security. At the same time, however, the threat to civil liberties is also very real in America today. The question is not whether the Government should have the tools it needs to protect the American people. Of course it should. That is why I coauthored the PATRIOT Act 5 years ago, and that is why that Act passed with broad bipartisan support. When I voted for the PATRIOT Act, I did not think it was an ideal piece of legislation, and I knew that it would need careful oversight and, in due course, reform. None of us wants the PATRIOT Act to expire, and those who threatened to let it expire rather than fix it play a dangerous game. This is about how to reconcile two shared and fundamental goals-- ensuring the safety of the American people and protecting their liberty by means of a system of checks and balances that keeps the Government-- their Government--accountable. Those goals are not the goals of any particular party or ideology; they are shared American goals. How to balance security with liberty and Government accountability was the most fundamental dilemma with which the Framers of our Constitution wrestled, and how to adjust that balance in the post-9/11 world is a fundamental dilemma before this Congress. Our Nation is a democracy, founded on the principles of balanced government. We need to restore checks and balances in this country to protect us all and all that we hold dear. Our Congress and our courts provide checks on the abuse of executive authority and should protect our liberties. Congress must write the law so it provides not just a check on Presidential power but also a clear role for the courts. All Americans need to take notice and need to demand that their liberties be maintained. We can do better and must do better for the American people.

Mr. LEAHY

Mr. LEAHY. Mr. President, I began the hearing on this nomination by putting forward what for me was the ultimate question during the consideration of a successor to Justice Sandra Day O'Connor: Would Judge Alito, if confirmed by the Senate to the Supreme Court, protect the rights and liberties of all Americans and serve as an effective check on government overreaching? Since this debate began last Wednesday, I have posed the fundamental question that this nomination raises for this body: whether the Senate will serve its constitutional role as a check on Executive power by preserving the Supreme Court as a constitutional check on the expansion of Presidential power. This is a nomination that I fear threatens the fundamental rights and liberties of all Americans now and for generations to come. As astonishing as the facts may seem, it does not overstate them to point out that the President is in the midst of a radical realignment of the powers of the government and of its intrusiveness into the private lives of Americans. This nomination is part and parcel of that plan. I am concerned that if confirmed, this nominee will further erode the checks and balances that have protected our constitutional rights for more than 200 years. This is a critical nomination, one that can tip the balance on the Supreme Court radically away from constitutional checks and balances and the protection of Americans' fundamental rights. The procedural vote just taken was in large measure symbolic. Its result was foreseen by Senators on both sides of the aisle and on both sides of the question. The next vote the Senate takes on this critical nomination is not symbolic. It has real consequences in the lives of the 295 million Americans alive today, and it will influence the lives of generations of Americans to come. It will affect not only our rights but the fundamental rights and liberties of our children and our children's children. In short, it matters, and it matters greatly. The vote the Senate will take tomorrow will determine whether Samuel A. Alito, Jr., replaces Justice Sandra Day O'Connor on the Supreme Court of the United States. I appreciate why Senators who voted against cloture believe this matter deserves more searching attention by Senators and the American people. Among Democratic Senators, each is voting his or her conscience and best judgment. There will be many Democratic Senators who, like the Democratic members of the Judiciary Committee who have closely studied the record of this nominee, will be voting against the nomination. There will be some Democratic Senators who will vote to confirm the nominee. Among those voting against, there are some who believe that it is not appropriate to withhold the Senate's consent by extending debate. The Senate debated Chief Justice Roberts' nomination during 8 days and over a 10-day calendar period. Although much more divisive and controversial, the Alito nomination will be debated for just 5 days over a 7-day calendar period by the time the vote is called tomorrow. It is true that Democratic Senators do not all vote in lockstep. Each Democratic Senator individually gives these questions serious consideration. They honor their constitutional duty. I am proud of the Democratic members of the Judiciary Committee for the statements they made last week when the committee considered this nomination and during the course of the last few days. Their hard work in preparing for three Supreme Court nominations over the last few months is to be commended. I thank and commend the many Democratic Senators who came to the floor, who spoke, who set forth their concerns and their views. That includes Democratic Senators opposing the nomination and those in favor. It is quite a roster: Senators Kennedy, Durbin, Mikulski, Clinton, Kerry, Nelson of Florida, Reed, Murray, Feinstein, Inouye, Harkin, Bingaman, Lincoln, Lieberman, Salazar, Carper, Levin, Obama, Dayton, Feingold, Johnson, Sarbanes, Stabenow, Lautenberg, Menendez, and, in addition, Senator Jeffords. These Senators approached the matter seriously, in contrast to those partisan cheerleaders who rallied behind this White House's pick long before the first day of hearings. I respect those Senators who are giving this critical nomination serious consideration but come to a different conclusion than I, just as I continue to respect the 22 Senators who voted against the Roberts nomination. I have candidly acknowledged that over the course of history, their judgment and vote may prove right. I took Judge Roberts at his word in the belief that his words and the impressions he understood them to be creating had meaning. I continue to hope that as Chief Justice he will fulfill his promise and steer the Court to serve as an appropriate check on abuses of Presidential power and protect the fundamental liberties and rights of all Americans. Filibusters of judicial nominees--and, in particular, of Supreme Court nominees--are hardly something new. When Justice Fortas was nominated by President Johnson to be the Chief Justice, a filibuster led by Strom Thurmond and the Republican leader resulted in an unsuccessful cloture vote and in that nomination being withdrawn. That was the most recent successful filibuster of a Supreme Court nominee. But that was not the first or last Supreme Court nomination to be defeated. President George Washington, the Nation's first and most popular President, saw the Senate reject his nomination of John Rutledge to the Supreme Court at the outset of our history. Over time approximately one-fifth of Presidents' Supreme Court nominees have not been confirmed. The last time the country was faced with the retirement of the pivotal vote on the Supreme Court was when Justice Lewis Powell resigned in 1987. A Republican President sought to use that opportunity to reshape the U.S. Supreme Court with his nomination of Judge Robert Bork. Judge Bork had been a law professor, a partner in one of the Nation's leading law firms, a judge on the DC Circuit for 5 years, and he had served as Solicitor General of the United States and even as the Acting Attorney General at a critical juncture of our history. Many myths have arisen about why the Senate rejected that nomination. I was here and, along with the other Senators, both Republican and Democratic, who voted to defeat that nomination, I know that the nominee's views were the decisive factor in his failure. His rejection of the constitutional right to privacy was a large part of his own undoing. Soon thereafter, President Reagan announced and withdrew the nomination of Judge Ginsburg and then turned to a conservative Federal appellate court judge from California named Anthony Kennedy. Justice Kennedy, though conservative, was confirmed overwhelmingly and in bipartisan fashion. He continues to serve as a respected Justice who has authored key decisions protecting Americans from unfair discrimination because of their sexual orientation. When the Senate was considering a successor to Justice Powell almost 20 years ago, I said that I believed a Supreme Court nominee's judicial philosophy should play a central role in our consideration. I noted: There is no question that the nominee who is confirmed to succeed Justice Lewis Powell will be uniquely influential in determining the direction of the Supreme Court's interpretation of the Constitution for years to come. There can hardly be an issue closer to the heart of the Senate's role than a full and public exposition of the nominee's approach to the Constitution and to the rule of the courts in discerning and enforcing its commands. That is what I mean by judicial philosophy. The same remains true today as we consider a successor to Justice Sandra Day O'Connor. I strongly believe that Judge Alito's judicial philosophy is too deferential to the government and too unprotective of the fundamental liberties and rights of ordinary Americans for his nomination by President Bush to be confirmed by the Senate as the replacement for Justice O'Connor. Judicial philosophy comes into play time and again as Supreme Court justices wrestle with serious questions about which they do not all agree. These include fundamental questions about how far the government may intrude into our personal lives. Senators need to assess whether a nominee will protect fundamental rights if confirmed to be on the Supreme Court. Several Republican Senators said that judicial philosophy and personal views do not matter because judges should just apply the rule of law as if it were some mechanical calculation. Senator Feinstein made this point exceptionally well during the debate. Personal views and judicial philosophy often come into play on close and controversial cases. We all know this to be true. Why else did Republican supporters force President Bush to withdraw his previous nominee for this vacancy, Harriet Miers, before she even had a hearing? She failed their judicial philosophy litmus test. Indeed, Harriet Miers is the most recent Supreme Court nominee not to have been confirmed. It was last October that President Bush nominated his White House Counsel Harriet Miers to succeed Justice O'Connor. He did so after the death of the Chief Justice and withdrawing his earlier nomination of Judge Roberts to succeed Justice O'Connor. The democratic leader of the Senate quickly endorsed the selection of Ms. Miers as the kind of person, with the kind of background, he found appealing. Democratic Senators went about the serious business of preparing for hearings on the Miers nomination. But there were those from among the President's supporters who castigated Ms. Miers and the President for the nomination. The President succumbed to the partisan pressure from the extreme rightwing of his own party by withdrawing his nomination of Harriet Miers to the Supreme Court after repeatedly saying that he would never do so. In essence, he allowed his choice to be vetoed by an extreme faction within his party, before hearings or a vote. As Chairman Specter has often said, they ran her out of town on a rail. In fact, of course, she has remained in town as the President's counsel, but his point is correct. Like the more than 60 moderate and qualified judicial nominees of President Clinton on whom Republicans would neither hold hearings or votes, the Miers nomination was killed by Republicans without a vote--by what was in essence a pocket filibuster. That eye-opening experience for the country demonstrated what a vocal faction of the Republican Party really wants. Their rightwing litmus test demands justice and judges who will guarantee the results that they want. They do not want an independent federal judiciary. They want certain results. Instead of uniting the country through his third choice to succeed Justice O'Connor, the President has chosen to reward one faction of his party, at the risk of dividing the country. Those so critical of his choice of Harriet Miers as a nominee were the very people who rushed to endorse the nomination of Judge Alito. Instead of rewarding his most virulent supporters, the President should have rewarded the American people with a unifying choice that would have broad support. America could have done better through consultation to select one of the many consensus conservative Republican candidates who could have been overwhelmingly approved by the Senate. Instead, without consultation, the President withdrew the Miers nomination and the next day announced that his third choice to succeed Justice O'Connor was Judge Alito. At his hearing, Judge Alito began by asking how he got this critical nomination. Over the course of the hearings, I think we began to understand the real answer to that question. It has little to do with Judge Alito's family story and a great deal to do with the pressures that forced the President to withdraw the nomination of Harriet Miers and this President's efforts to avoid any check on his expansive claims to power. This is a President who has been conducting secret and warrantless eavesdropping on Americans for more than 4 years. This President has made the most expansive claims of power since American patriots fought the war of independence to rid themselves of the overbearing power of King George III. He has done so to justify illegal spying on Americans, to justify actions that violate our values and laws against torture and protecting human rights, and in order to detain U.S. citizens and others on his say so without judicial review or due process. This is a time in our history when the protections of Americans' liberties are at risk as are the checks and balances that have served to constrain abuses of power for more than 200 years. Judge Alito's opening statement skipped over the reasons he was chosen. He ignored his seeking political appointment within the Meese Justice Department by proclaiming his commitment to an extreme and activist rightwing legal philosophy. His testimony sought to minimize the Federalist Society and his seeking to use membership in Concerned Alumni of Princeton for advancement. He attempted to revise and redefine the theory of the ``unitary executive.'' That is a legal underpinning being used by this President and his supporters to attempt to justify his assertions of virtually unlimited power. The President wanted a reliable Justice who would uphold his assertions of power, his most extreme supporters want someone who will revisit the constitutional protection of privacy rights, and the business supporters wanted someone favorable to powerful special interests. Supreme Court nominations should not be conducted through a series of winks and nods designed to reassure the most extreme Republican factions while leaving the American people in the dark. No President should be allowed to pack the courts, and especially the Supreme Court, with nominees selected to enshrine Presidential claims of government power. The checks and balances that should be provided by the courts, Congress, and the Constitution are too important to be sacrificed to a narrow, partisan agenda. The Senate stood up to President Roosevelt when he proposed a court-packing scheme and should not be a rubberstamp to this President's effort to move the law dramatically to the right. I do not intend to lend my support to an effort by this President to undermine checks and balances or to move the Supreme Court and the law radically to the right. So what do we know about the Samuel Alito who graduated from Princeton University and Yale Law School and obtained a plum job in the office of the Solicitor General of the United States? We know that he wanted political advancement and was committed to the radical legal theories of the Meese Justice Department. The job application that was the subject of some question at the hearing is most revealing. I will ask that a copy of that job application be printed in the Record at the conclusion of my statement so that the American people can see it. This confirmation process is the opportunity for the American people to learn what Samuel Alito thinks about their fundamental constitutional rights and whether he will serve to protect their liberty, their privacy and their autonomy from Government intrusion. The Supreme Court belongs to all Americans, not just the person occupying the White House, and not just to a narrow faction of a political party. We have heard from Judge Alito's supporters that those opposing this nomination were ``smearing'' him by asking substantive and probing questions at the hearing and by addressing concerns about his record during this debate. The Republican leader opened the debate with that attack. He said this before a single minute of debate or opening statement by any Democratic Senator. These Republican talking points ring hollow and are particularly inappropriate after President Bush was forced by an extreme faction in his own party to withdraw his nomination of Harriet Miers. Democratic Senators should not be criticized for taking seriously their constitutional role in trying to assess whether Judge Alito is suitable for a lifetime position on the Supreme Court. Democrats also asked tough questions of Justices Ginsburg and Breyer during their confirmation hearings, which is in stark contrast to the free pass given to Judge Alito by Republican Senators during his hearing. Those critical of the Democrats have a short and selective historical memory. Republican Senators engaged in a party-line vote in committee against the nomination of Louis Brandeis to the Supreme Court. Republican Senators, in an unprecedented party-line vote, blocked the nomination in 1999 of Missouri Supreme Court Justice Ronnie White, an extremely qualified nominee for a Federal district court judgeship. In fact, Republicans pocket-filibustered more than 60 of President Clinton's judicial nominees by holding them up in the Judiciary Committee. This President continues to choose confrontation over consensus and to be a divider rather than being the uniter that he promised to be. This is in stark contrast to President Clinton's selection of Justices Ginsburg and Breyer after real consultation. In his book, ``Square Peg,'' Senator Hatch described how in 1993, as the ranking minority member of the Senate Judiciary Committee, he advised President Clinton about possible Supreme Court nominees. Senator Hatch recounted that he warned President Clinton away from a nominee whose confirmation he believed ``would not be easy.'' He wrote that he then suggested the names of Stephen Breyer and Ruth Bader Ginsburg, both of whom were eventually nominated and confirmed ``with relative ease.'' President Bush, who had promised to be a uniter, not a divider, failed to live up to his promise or to the example of his predecessor, as described by Senator Hatch. The result is that, rather than sending us a nominee for all Americans, the President chose a divisive nominee who raises grave concerns about whether he will be a check on Presidential power and whether he understands the role of the courts in protecting fundamental rights. The Supreme Court is the ultimate check and balance in our system. Independence of the courts and its members is crucial to our democracy and way of life. The Senate should never be allowed to become a rubberstamp, and neither should the Supreme Court. This is a nomination to a lifetime seat on the Nation's highest Court that has often represented the decisive vote on constitutional issues. The Senate needs to make an informed decision about this nomination. This process is the only opportunity that the American people and their representatives have to consider the suitability of the nominee to serve as a final arbiter of the meaning of Constitution and the law. Has he demonstrated a commitment to the fundamental rights of all Americans? Will he allow the government to intrude on Americans' personal privacy and freedoms? In a time when this administration seems intent on accumulating unchecked power, Judge Alito's views on government power are especially important. It is important to know whether he would serve with judicial independence or as a surrogate for the President who nominated him. Based on a thorough review of his record and that from his hearing, I have no confidence that he will act as an effective check on government overreaching and abuses of power. As we began the hearings, I recalled the photograph that hangs in the National Constitution Center in Philadelphia, PA. It shows the first woman ever to serve on the Supreme Court of the United States taking the oath of office in 1981. Justice Sandra Day O'Connor served as a model Supreme Court Justice. She is widely recognized as a jurist with practical values and a sense of the consequences of the legal decisions being made by the Supreme Court. I regret that some on the extreme right have been so critical of Justice O'Connor and have adamantly opposed the naming of a successor who shares her judicial philosophy and qualities. Their criticism reflects poorly upon them. It does nothing to tarnish the record of the first woman to serve as an Associate Justice of the Supreme Court of the United States. She is a Justice whose graciousness and sense of duty fuels her continued service nearly 7 months after she announced her intention to retire. As the Senate prepares to vote on President Bush's current nomination--his third--for a successor to Justice O'Connor, we should be mindful of her critical role on the Supreme Court. Her legacy is one of fairness that I want to see preserved. Justice O'Connor has been a guardian of the protections the Constitution provides the American people. Of fundamental importance, she has come to provide balance and a check on government intrusion into our personal privacy and freedoms. In the Hamdi decision, she rejected the Bush administration's claim that it could indefinitely detain a U.S. citizen. She upheld the fundamental principle of judicial review over the exercise of government power and wrote that even war ``is not a blank check for the President when it comes to the rights of the Nation's citizens.'' She held that even this President is not above the law. Her judgment has also been crucial in protecting our environmental rights. She joined in 5-to-4 majorities affirming reproductive freedom, religious freedom, and the Voting Rights Act. Each of these cases makes clear how important a single Supreme Court Justice is. It is as the elected representatives of the American people--all of the people--that we in the Senate are charged with the responsibility to examine whether to entrust their precious rights and liberties to this nominee. The Constitution is their document. It guarantees their rights from the heavy hand of government intrusion and their individual liberties to freedom of speech and religion, to equal treatment, to due process and to privacy. The Federal judiciary is unlike the other branches of Government. Once confirmed, Federal judges serve for life. There is no court above the Supreme Court of the United States. The American people deserve a Supreme Court Justice who inspires confidence that he, or she, will not be beholden to the President but will be immune to pressures from the government or from partisan interests. The stakes for the American people could not be higher. At this critical moment, Democratic Senators are performing our constitutional advice and consent responsibility with heightened vigilance. I urge all Senators--Republicans, Democrats and Independents--to join with us. The Supreme Court is the guarantor of the liberties of all Americans. The appointment of the next Supreme Court Justice must be made in the people's interest and in the Nation's interest, not to serve the special interests of a partisan faction. I have voted for the vast majority of President Reagan's, President Bush's, and President Bush's judicial nominees. I recommended a Republican to President Clinton to fill Vermont's seat on the Second Circuit, Judge Fred Parker, and recommended another Republican to President Bush to fill that seat after Judger Parker's death, Judge Peter Hall. I voted for President Reagan's nomination of Justice Sandra Day O'Connor, for President Reagan's nomination of Justice Anthony Kennedy, for President Bush's nomination of Justice Souter, and for this President's recent nomination of Chief Justice Roberts. In fact, I have voted for eight of the nine current Justices of the Supreme Court. I want all Americans to know that the Supreme Court will protect their rights and will respect the authority of Congress to act in their interest. I want a Supreme Court that acts in its finest tradition as a source of justice. The Supreme Court must be an institution where the Bill or Rights and human dignity are honored. In good conscience, based on the record, I cannot vote for this nomination. I urge all Senators to use this last night of debate to consult their consciences and their best judgment before casting their votes tomorrow. That vote will matter. In my 30 years in the Senate, I have cast almost 12,000 votes here in the Senate. Few will be as important as the vote we cast tomorrow. Mr. President, I now ask unanimous consent that the application to which I referred be printed in the Record.

Mr. LEAHY

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

Mr. LEAHY. Mr. President, will the Senator yield on that one point? I totally agree with what he said about Senator Specter, who has been an example not just to the other 99 Senators but to the whole country. I am going to be honored to present him with an award, Tracy's Kids, awarding him for, among other things, primarily the example he has set for the rest of the country that somebody can face a very serious crisis and handle it with courage, dignity, and stalwartness. To all the people who suffer various forms of cancer--the distinguished Senator knows personally, and I know a dear member of my family--this kind of inspiration helps a great deal. I cannot thank the Senator from Alaska enough for the words he just said.

Mr. LEAHY. Mr. President, I have spoken before, of course, on this nomination. I want to emphasize some of the points I have made. The Constitution, as we know, gives the Senate a central role in the confirmation of a Supreme Court Justice. Nothing in our makeup, nothing in the history of this country assumes that the Senate would be a rubber stamp for the President's nominees. After all, it was the Senate that turned down some nominees of George Washington--the most popular President and the greatest President in this country's history--because it would not be a rubber stamp. It was an overwhelmingly Democratically controlled Senate at the time of Franklin Roosevelt, and it was that Senate that said to Franklin Roosevelt: You cannot pack the Supreme Court. I have said, also, many times that the Senate should be the conscience of the Nation. After all, we are the only 100 people in this country of 295 million Americans who get a chance to vote on lifetime positions to the Supreme Court--people who will affect our personal rights for decades to come. Now, I have voted on every one of the current nine members of the U.S. Supreme Court. I actually voted on some who are no longer there. I approach each one the same way. Is this going to be a Supreme Court Justice for all Americans? That is what I asked about Judge Alito. He came before our Senate Judiciary Committee with a record he has created over the last 30 years. As a judge, and before that as a high- ranking Government official appointed to a succession of posts by Republican Presidents, Judge Alito seemed consistently to defer to Executive power and to show little empathy for the plight of ordinary Americans. His record also suggested a pattern of saying what he needed to say to get to the next job. Certainly, nothing in his record, nothing in his job application indicated he felt very strongly about checks and balances and the three branches of Government. Now, in the course of this nomination and the hearings, he sought to retreat from his own words; but even trying to retreat, he did not. The hearing provided him with an opportunity to explain his record. It was an opportunity he chose to squander. The President's supporters and many Republican Senators on the committee urged him not to be forthcoming. My gracious, the 18 members of that committee are the only ones who get to ask him questions on behalf of all 295 million Americans, and some urged him not to answer questions. He had the chance to answer some of the troubling questions that his past words and actions raised. He had the opportunity to demonstrate that his replacement of Harriet Miers was not what it appeared to be--the President selecting somebody whom he knew he could count on to support Government power and the expansive doctrine of the ``unitary Executive,'' and someone the extreme faction in the President's party felt assured would march with Justices Scalia and Thomas in their culture war. So it was an opportunity to answer questions--an opportunity he did not take. The hearings and the whole confirmation process left us with more questions and greater concerns than we had before. I have discussed his failure to assure us that he would be an effective check and balance on Executive power. He failed to show me or the American people that when he recited platitudes such as ``nobody is above the law,'' he was not telling us what he thought he needed to say to get one more promotion. When I voted for John Roberts as Chief Justice, a conservative Republican nominated by a conservative Republican, I voted for him because I looked at him and I thought, ``Would George Bush or Patrick Leahy, or George Smith or Patrick Jones, get fair treatment? And would we be heard on what the facts and the law would be?'' I believed we would. But I don't have that same confidence with Judge Alito. One question for the Senate is whether Judge Alito takes seriously his promises to the Senate and his obligations to avoid the appearance of impropriety. He had an opportunity to talk about his numerous failures to recuse himself from cases during the nomination period, and he didn't accept that opportunity. In 1990, Mr. President, Judge Alito came before the Senate. I was here at that time. He was seeking confirmation to the Third Circuit Court of Appeals. He made a pledge--and they are made under oath--that he would recuse himself from five categories of cases: cases involving three different financial companies with whom he had dealings, cases in which his sister's law firm represented a party, and cases he had overseen as the U.S. Attorney in New Jersey. Someone in that circumstance who would not make such a pledge might not have been confirmed. But I was disappointed to discover that, despite making this explicit promise to disqualify himself in these cases, he failed to disqualify himself in at least four of the five categories from which he had sworn he would disqualify himself. In fact, he apparently failed to put several of the companies on the so-called recusal list. These were companies from which he said he would recuse himself if matters involving them came up before the Third Circuit. He did not even give their names to the clerk to make sure that happened. I don't suggest that he in any way got any financial benefit from this. I doubt that he did. But, again, he was making promises to get promoted to the next job. Once he got promoted, the promises were forgotten. One case we have heard a lot about involving the Vanguard funds, in which he had invested hundreds of thousands of dollars, and which he expressly included in his 1990 pledge to the Senate, is particularly troubling--not just because of his involvement but for the various reasons he gave, shifting reasons, for why he did not recuse himself. First, he said he didn't realize it was a case involving Vanguard. The word ``Vanguard'' appears in the case name three times and in the case papers many more times. He said the clerk had moved to a computerized recusal system, so there was a computer glitch, and that may have been why he was assigned the case. Well, he would have seen Vanguard in the case name three times. He said: Well, I didn't benefit from it. We were getting a little bit into ``the dog ate my homework.'' Why not just say, ``I screwed up?'' After significant investigatory work and pressing for answers, we found that Vanguard was not on his computerized list to identify conflicts, so a computer glitch could not have occurred. He finally acknowledged--and I give him credit for this--having stated for weeks and weeks that there was a computer glitch, he finally acknowledged that there was not. Why not say, ``I screwed up'' and accept the responsibility? He acted like the Bush Administration most often does when it errs, by blaming others: his surrogates attacked those raising questions, while he proffered numerous conflicting excuses. For example, one of his many explanations was contained in a letter he wrote to Chairman Specter. He contended that the 1990 promise he had made to the Judiciary Committee in order to become a Circuit judge only applied to his ``initial service'' and that he later, apparently secretly and unilaterally, decided that his promise to this Committee had been ``unduly restrictive'' and that he need not follow it anymore. He did not so inform the Judiciary Committee or the Senate of these determinations at any time before his 2005 nomination to the Supreme Court. Moreover, it is wholly inconsistent with his finally adding the Vanguard companies to his recusal list in December 2003. This letter seems more like self-serving, after-the-fact rationalizing than it does a truthful explanation for what had happened in 2003. As we discovered through due diligence, Vanguard and Smith Barney were not on the judge's automatic recusal list even in 1993. There is no reason to think they were on there before that. It certainly does not seem that Judge Alito tried to live up to his sworn commitment to the Senate even during what he would have to concede was his ``initial service'' period as a Circuit judge. Moreover, the ``initial service'' excuse makes no more sense with respect to his Vanguard investments than it would with respect to his sister. She did not cease being his sister after some ``initial service'' period of his on the bench. In fact, his Vanguard investments significantly increased over the period of his service on the bench. The ``initial service'' concept in the Judiciary Committee's approach to recusal applies to transition from a law practice to the bench. Thus, for example, once the cases on which he had been involved while the U.S. Attorney in New Jersey had run their course, he was not prohibited for all time from hearing cases from that office. Eventually, even he had to acknowledge at the hearing that this ``initial service'' argument was not the real reason he failed to recuse from the Vanguard case, even though that had been the argument he made in a written response to our Committee's chairman. To the end, Judge Alito has failed to take responsibility for his action. Instead, the best he can do is to admit at his hearing that he ``just didn't focus on the issue of recusal'' and that ``no light went off.'' There was no remorse, no apology, and no embarrassment for the string of conflicting and inaccurate explanations he gave during the course of this nomination. Accordingly there is no reason to think that if he becomes a Supreme Court Justice he will focus any better on conflict of interest and appearance of conflict issues, in a system without accountability. I voted against the nomination of Justice Rehnquist to become Chief Justice in large measure because of his involvement in a case in which he should not have been. I take these matters very seriously. It is apparent that this nominee does not. In his 1985 job application for a job in the Reagan administration-- one that he said he was careful in doing--he very proudly included his membership in the Concerned Alumni of Princeton, or CAP, which he termed ``a conservative alumni group.'' Actually, he named only two groups he had been associated with, that one and the Federalist Society. He was also a member at the time of the Princeton Club in Washington. He didn't include that. He didn't include anything else. The reason I mention this is that he knew exactly what memberships to what clubs would appeal to those in the Meese Justice Department. Some would say that is being wise. But why emphasize membership in a group such as the Concerned Alumni of Princeton? Nobody would suggest that in his hiring practices or in the way he lives Judge Alito is biased against women or minorities, but the Concerned Alumni of Princeton received national attention for resisting the admission of women and minorities--African Americans and others--into Princeton. Why brag about being part of such an organization? These same people only a generation earlier surely would have resisted the admission of people from Italian immigrant families. I take that rather personally. My mother's family were Italian immigrants. I still have relatives in Italy today, uncles, aunts, and cousins, who talk about how proud they are of their sons and daughters who have gone to America. I also think of a different era when my Irish father, as a teenager, had to face signs: ``No Irish need apply'' or ``No Catholics need apply.'' As a result, we grew up in a family where we learned that all discrimination was wrong. Why brag about even a loose affiliation with a group that advocated any kind of discrimination? Because it had been in the press, I thought I would help the judge out. I asked him about this. I figured it would be a simple explanation; that he would make it very clear that he was opposed to them. Instead, he said: I don't really remember that group. We alerted him ahead of time that he was going to be asked that question. He said: ``I don't remember that,'' even though it was on his application. Then he said: Well, I think it was because of the concern that ROTC was not being allowed on the Princeton campus. Good explanation, except, of course, by 1985 ROTC was back on the Princeton campus. Neither CAP's own materials nor media accounts suggest that ROTC was a primary focus for CAP at the time. And of course, that was not an answer to my question. My question was why he touted his membership in 1985. He never answered my question. Those little facts, inconvenient facts, that come in. They were not inconvenient at the time he was applying for a job with Edwin Meese. Then it was something of which to be proud. Now applying for a job on the U.S. Supreme Court it is: I don't remember why I did it. I will give him the benefit of the doubt. I will accept he was not very active in the group. But then that goes all the more to why he emphasized it in his job application especially to that administration, to the Meese Justice Department. That was the most ideological and partisan administration we had seen until the present time. So it is logical to think that he proudly proclaimed his membership in CAP and the Federalist Society, as well as his support of Republican candidates and conservative causes and his recent submission of articles to the American Spectator, to establish his right-wing credentials to help win that coveted promotion. It seems apparent that he said all this in 1985 to show those making promotion decisions that he was not just a traditional conservative, but a ``movement conservative,'' and that the activists in control of political promotions at the Meese Justice Department and the White House could rely on him. I am concerned he tried too hard back then to fit in with those in power, and it makes me wonder, when he was being screened for this job, when he met in that private closed-door meeting with Vice President Cheney, Karl Rove, and Scooter Libby, what he said to them. In this time of Executive overreaching, illegal spying, and expanding Government power, what the American people need is a Supreme Court that is willing to stand up for the liberties and rights of all Americans, not someone who curries favor with the powerful. I am especially interested in these circumstances because, as you know, Mr. President, Judge Alito was the third person President Bush nominated for this particular seat. The second one, Harriet Miers, he nominated and then got a firestorm of criticism from Republicans, not from Democrats, but from Republicans, from some within the Republican Party who made it very clear to the President: You can't nominate her because we are not sure how she will vote. We are not sure that she will vote the way we want her to. Finally, the President--in a humiliation for him--was forced to withdraw her name. He came forth with Judge Alito, and those same people said: He is great. We are confident about how he will vote. We are fine with him. I am concerned, as well, about his failure to be forthcoming in answer to my questions about CAP. I would have been more willing to give Judge Alito the benefit of the doubt if he had taken the opportunity the hearings provided to come clean about all this. He gave me no adequate answers. When Senator Schumer raised the matter of his inclusion of CAP on his job application again, on another day, later in the hearing he hinted at what he had done in 1985 but still would not own up. He said: [Y]ou have to look at the question that I was responding to and the form that I was filling out. I was applying for a position in the Reagan Administration, and my answers were truthful statements, but what I was trying to outline were the things that were relevant to obtaining a political position. But he stopped far short of answering because he had gotten himself into another box by his previously saying to us that he had no recollection of CAP. He concluded with the following: Well, Senator, since I don't remember this organization, I can't answer your question specifically, but I think that the answer to the question lies in the nature of the form that I was filling out and the things that I put. Regrettably, when he had been asked by ABA representatives about his putting CAP in his 1985 job application and whether he was ``pandering,'' he failed to take that opportunity to reflect on what he had done and own up to the matter, as well. Instead, according to Marna Tucker's testimony, he answered that he put CAP on that application because ``it would be improper to not tell the truth on an application'' and ``that he was a member of that organization.'' That answer says a lot. He is right that it is ``improper to not tell the truth on an application,'' but that does not explain why he chose to list CAP. The form does not call for him to list all clubs and affiliations. The form used to seek political advancement during the Reagan Administration asked for something else, a demonstration of partisan, political commitment. It said: ``Please provide any information that you regard as pertinent to your philosophical commitment to the policies of this administration,'' and asked applicants whether ``you ever served on a political committee or been identified in a public way with a particular political organization, candidate or issue.'' That is why he included CAP, an organization that in the mid-1980's was a place that activists like Dinesh D'Souza and other rising stars in the conservative movement favored. Regrettably, at his hearing, and under oath, Judge Alito evaded. He could not remember, tried to say the right things about discrimination, stood by while his supporters attacked the question and then watched as his supporters pushed so hard that they made his wife break down in tears. I do not think that the Republican Senator who pressed that awkward line of defense intentionally meant to upset Mrs. Alito, but Republican partisans have turned that moment that they created into a partisan weapon. Like the matters of recusal, the CAP issue is another that Judge Alito could have put to rest by being more forthcoming at the outset. He has never answered the question of why he touted his membership in CAP in 1985. To me the true answer seems obvious. Indeed, in a news account that appeared on the last day of the hearings, his mentor at the Department of Justice in those days admitted what was really going on in that 1985 application. Charles Cooper, who was the Assistant Attorney General for the Office of Legal Counsel and Samuel Alito's supervisor, said: The only purpose of that essay was to satisfy the Office of Presidential Personnel that he was simpatico with the Reagan Administration's legal policy agenda. He went on to call Samuel Alito's 1985 statement ``his essay of his political bona fides.'' Judge Alito's 1985 job application is an ideological manifesto that goes a long way to explain why the same people on the far right who shot down the President's nomination of Harriet Miers, because they were not assured how she would rule, rushed to support Judge Alito when his nomination was announced. I looked at his job applications. He wrote: [I]t has been an honor and source of personal satisfaction for me . . . to help advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion. These are his words. He was eager to highlight his work in the Solicitor General's Office, which should be a place where lawyers honor working in a nonpartisan and professional manner, rather than seek to twist it to partisan political ends. We have seen a few of the documents he produced in that office, but the Bush administration's regime of secrecy has prevented the Judiciary Committee and, of course, the Senate, and, of course, the American people from reviewing most of his work from his time there. This was work done during a Republican administration that litigated and lost the famous Bob Jones University case about tax breaks for institutions that discriminate; that lied to Congress about the EPA and Iran-Contra; that sought to overrule Roe v. Wade; and that sought to roll the clock back on fundamental rights to equal protection. The hearing gave Judge Alito an opportunity to do either of two things. He could have embraced his statement from 1985 and his record as a judge and set out to explain why his deferential view of presidential power and his restrictive view of individual rights are appropriate for a justice who is supposed to be there for all 290 million Americans. We could have had the great ideological debate that so many on the far right seemed to want to have when the President's nominee was Harriet Miers. Or he could have disavowed the 1985 job application and much of his record as a judge and told us that he would in fact be a check on the President and protect the fundamental constitutional rights of all Americans. He did neither. Instead he refused to share his views and tried to finesse his statements in the 1985 application and limit them ``technically.'' He was so unresponsive that commentators from across the political spectrum have called for an end to Supreme Court confirmation hearings since they reveal so little about the nominee's thinking. For example, he said that his statements about privacy represented his views at the time, but that he would view the issue with an ``open mind'' as a justice with the authority to cut back, or overrule the rights expressly recognized in Roe v. Wade. Judge Alito never disavowed his 1985 statement that in his legal view the Constitution does not protect a woman's right to choose. In fact, he responded to Chairman Specter that his statement in 1985 was a ``true reflection of [his] views at the time'' and ``the position that [he] held at the time.'' We also have his multi-page memorandum on the Thornburgh case from his days in the Solicitor General's office--one of the handful that slips through the veil of secrecy that the Bush Administration sought to construct--in which he asserts his legal view that Roe was wrongly decided and should be overruled, but that tactically the better approach would be to incrementally undermine its legal authority. This one memo is enough to demonstrate why such material should have been produced rather than hidden by this Administration so that the Senate and the American people would have the nominee's views and record. The Bush Administration refuses to produce Samuel Alito's work at the Solicitor General's office and at the Office of Legal Counsel. Who can tell what those other writings would reveal about the nominee's legal views? The Washington Post recently reported that Charles Cooper has now indicated that Samuel Alito worked on defending the Reagan Administration in connection with the Iran-Contra crimes by working on legal theories so that they would not have to inform the Congress which was investigating in its oversight capacity. What else did Samuel Alito work on that is being hidden from the Senate and the American people? On the issue of a woman's right to choose, we also have Judge Alito's opinion in Casey in which he follows the script he laid out in his memorandum to the Solicitor General and finds no state regulation an undue burden on a woman's right to choose. Of course, the Supreme Court, including Justice O'Connor herself, were in place then to hold the line in Casey, reaffirm Roe and reject Judge Alito's position. He would not testify what his legal view is today. He made it very clear he continues to believe that Roe v. Wade was wrongly decided. In describing how to decide a case where there is a precedent, he left out a step. He left out the step where the Justice, knowing there is a controlling precedent, decides whether the precedent was correctly or incorrectly decided. If a Justice believes the preceding case was correctly decided, he has no reason to go on to make the other calculations about weight and reliance and all the other factors that a Justice is to consider when deciding whether to overrule past precedent. He did not mention that step, though. In other words, Judge Alito's testimony presupposes that he continues to believe now what he believed in 1985, that Roe v. Wade was wrongly decided. Otherwise his answers make no sense. A justice does not waste time worrying about factors and weight and reliance when he considers the precedent correctly decided; that happens only when he is considering whether to overrule or limit that precedent. I mention this as just one more case. Much has been said about Roe. But for this Senator, it goes way beyond the question of Roe. It goes to the question of, to what extent would you allow a President to step aside from checks and balances? All his writings indicate a President should be able to do that. He is one of the strongest proponents I have heard in my life speaking about the so-called ``unitary Executive.'' What does that mean in real life? It means this President, more than all Presidents in history--all Presidents in history--has used the Alito theory to say: Even though I signed a law, even though I signed something into law, I don't have to follow it because I am the President. There are only two Presidents I have heard say that something is not illegal if the President does it: One is Richard Nixon, and the other is George W. Bush, and President Bush has used the Alito theory to make this argument 103 times. That means he can sign a law saying the United States must obey our own laws, our treaties on torture, and then quietly write a separate page saying: However, as President, I will decide when we will follow that law. Judge Alito's contradictory testimony at the hearing about his view were revealing. He went to great lengths to distance himself from his public endorsement of Judge Bork's unsuccessful nomination to the Supreme Court. He had called Judge Bork one of the most qualified nominee of the last century and was effusive in his praise--until asked about it at the hearing. There he sought to backtrack. He sought to excuse his comments as those of a political appointee supporting his employer's nominee, but had to concede that was not an accurate explanation for his comments. Only when pressed did he concede that he indeed thinks highly of Robert Bork's candidacy. And when Senator Kohl asked him for his views of whether the Supreme Court should have taken the case of Bush v. Gore, his evasiveness reminded me of when I asked Clarence Thomas whether he had ever discussed Roe v. Wade with anyone. Senator Kohl was not even asking his views on the holding of that case. We are in a pivotal constitutional moment in our history with a single fundamental question: Will the Senate serve its constitutional role and preserve the Supreme Court as a constitutional check on the expansion of Presidential power? The reason Presidential power issues have come to dominate this confirmation is because we clearly have arrived at this crucial juncture in our Nation and at our highest Court over one simple question: Is the President of the United States above the law? I feel very strongly none of us are. You, Mr. President, are not, I am not, the President of the United States is not, the other 98 Senators are not, judges are not. The Framers knew that unchecked power leads to abuses and corruption, and the Supreme Court has to be the ultimate check and balance in our system. Vibrant checks and balances are instruments in protecting both the security and the liberty of the American people. This great, wonderful country of ours has existed for well over 200 years because we have those checks and balances and because we protect the liberties of individual Americans--all Americans, not just those who fit into one narrow political ideology, but all Americans, all Americans, all Americans, from any part of this country: Americans who express popular ideas or unpopular ideas, a free press, free observation of religion, a free people. We have to have the Supreme Court as the ultimate check and balance, and the independence of the Court is crucial to our democracy and way of life. The Senate, as I said before, should never be allowed to become a rubber stamp and neither should the Supreme Court. We owe it to the American people today and Americans in generations to come to ask several essential questions: Can this President, or any President, order illegal spying on Americans? Can this President, or any President, authorize torture in defiance of our criminal statutes and our international agreements? Can this President, or any President, defy our laws and Constitution to hold American citizens in custody indefinitely without any court review? Can this President, or any President, choose which laws he will follow and which he will not, by quietly writing a side statement when he signs a bill into law? These are some of the most vital questions of our time, and they are among the most vital questions that confront the Senate in considering this nomination to our highest Court. Judge Alito's record, and his responses--and his failure to adequately answer questions about these issues--are deeply troubling. Regrettably, Judge Alito approached the question of a lifetime appointment to succeed Sandra Day O'Connor on the U.S. Supreme Court as a job application process that resembled a political campaign with two distinct parts. First, he had to get the nomination, which he sought as a committed arch-conservative and as a reliable vote in favor of Government power. That mission was accomplished when he was named to replace the nomination of Harriet Miers with the support of the President's most extreme supporters. That was his primary campaign. The Senate confirmation process is more the equivalent of a general election in which he strives to appear as middle-of-the-road as possible. Unfortunately, what he did not do successfully was to reconcile the two roles. I will vote against this nominee. I believe the President picked him for his demonstrated legal views which are a stark contrast to the image the White House and the handlers and supporters have attempted to create. Mr. President, I see the distinguished senior Senator from Alaska. I appreciate his courtesy and yield the floor.

Mr. LEAHY

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

Mr. LEAHY. Judge Alito missed opportunities during the hearings on a number of issues. I am left with a deep and abiding concern about Judge Alito's understanding of the role of the courts and their responsibility to protect the constitutional rights of individuals, especially the less powerful and especially where the political system has failed to do so. Despite Judge Alito's attempts to retreat from several of the more outrageous statements in his 1985 job application for a political position in Edwin Meese's Justice Department, his testimony at the hearing has done little to dispel my concerns. The consequences for all Americans of Judge Alito putting the beliefs he expressed in that job application into practice on the Supreme Court are too great. In his job application, Samuel Alito wrote, as a 35-year-old, practicing lawyer, that: In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the area[] of . . . reapportionment. This was a startling statement to make in 1985, just two decades ago. He was 35 years old and had been practicing law for almost a decade when he wrote that statement about his disagreement with Warren Court decisions on reapportionment. Even after being asked about this statement several times at the hearing, Judge Alito failed to adequately answer why he would seek to highlight a disagreement with the landmark equal protection cases by which the Supreme Court made elections fairer for all Americans and established the principle of ``one person, one vote.'' The Warren Court's reapportionment decisions were among the central achievements of the civil rights era. They ensured that voting districts which had been grossly mal-apportioned, often to the detriment of minority voters, would be fairly revised so that everyone's vote was weighed equally. It is clear from looking at the Republicans' partisan redistricting in Texas that these cases did not solve all the problems. However, reapportionment cases like Baker v. Carr, 1962, and Reynolds v. Sims, 1964, are landmarks because they established that courts have a responsibility to make certain that voting districts meet constitutional standards. It was Justice William Brennan of New Jersey who wrote the Court's opinion in Baker. Two years later, in Reynolds, the Court established the ``one person, one vote'' standard because, as stated by Chief Justice Warren in his opinion in that case: As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. At his hearing, Judge Alito was in retreat and had to concede that the concept of one person, one vote is well-settled and should not be reexamined. It was equally well-settled in 1985 when he made the statement in his job application. More importantly, Judge Alito's testimony calls into question whether he truly understands that the courts have a responsibility in our constitutional system to intervene to ensure that constitutional guarantees of equal access to the political system are met. This is important in situations where the political system is corrupt or where the political branches lack the will to fight against entrenched power or to reform themselves. In response to a question from Senator Kohl, Judge Alito sought to retreat from the unqualified disagreement with the reapportionment cases expressed in his 1985 application. He told the Committee that his disagreement was based only on certain details of later Warren Court decisions like the 1969 case, Kirkpatrick v. Preisler. Not only is this narrow objection to certain Warren Court decisions not a credible explanation for why he made his sweeping assertions of disagreement in 1985, but Judge Alito also contradicted it later in his testimony when he suggested that his disagreement with the Warren Court's reapportionment decisions was based on Alexander Bickel's ideas about judicial self-restraint. Professor Bickel was not concerned merely with later applications of one person, one vote. Rather, his theory was critical of the courts having any role at all in helping to guarantee that access to the political system is fair and equal. In fact, one of the justices whom Judge Alito described as among his favorites, Justice Harlan, applied Bickel's theories in dissenting from every landmark Warren Court reapportionment case establishing one person, one vote, starting with Baker v. Carr. In Justice Harlan's dissenting opinion in Reynolds v. Sims, as in all of Justice Harlan's reapportionment dissents, he argued that there is no constitutional basis for one person, one vote and that courts should restrain themselves from ``usurping'' the state legislatures' self-serving apportionment decisions. In his dissent in Reynolds, Justice Harlan wrote: ``It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the States,'' and ``[w]hat is done today deepens my conviction that judicial entry into this realm is profoundly ill- advised and constitutionally impermissible.'' This dissent, described as one of Judge Alito's favorites, hardly sounds like a disagreement only with certain aspects of later reapportionment decisions. The effects of the Court's decisions to intervene were dramatic. Were the Supreme Court to have followed the dissents of Justice Harlan or the theories of Alexander Bickel that Judge Alito embraced in 1985, the massive disparities in the size of voting districts would not have been corrected in the 1960s. Nor would the underrepresentation of voters from urban areas, minority voters, have been corrected. Had the Court not acted we might still have poll taxes and other barriers to the ability of minorities to vote. At the hearing we heard testimony from pioneering civil rights attorney Fred Gray, who spent a lifetime fighting for those who were denied the rights to equal protection and equal dignity under the law guaranteed by our Constitution. After he graduated from law school, Mr. Gray immediately went to work defending Rosa Parks and Dr. Martin Luther King, Jr., in the Montgomery bus boycott. He has a real-life appreciation for the role of courts as providing a check to protect individual rights and liberties. In the late 1950s, after the Alabama legislature changed the city limits of Tuskegee, excluding all but three or four African Americans who were registered to vote in the city, Mr. Gray brought before the Supreme Court the case of Gomillion v. Lightfoot. This unanimous decision securing the right to vote for African Americans laid the foundation for Baker v. Carr and the cases establishing one person, one vote. I asked Mr. Gray what the consequences would have been had the courts followed the lead of Justice Harlan and Alexander Bickel, views with which Samuel Alito apparently agreed, and not involved itself in reapportionment. He testified: The difference is then, prior to these decisions, and even prior to Brown v. Board of Education, and prior to Gomillion v. Lightfoot and Browder v. Gayle, the case that desegregated the buses, we had very few African Americans and other minorities registered. We had little or no African Americans in public office. For example, in my state, in 1957 we had none. Now my State has approximately the same number of persons in our State legislature. It mirrors the population. We now have thousands of African Americans and other minorities who are holding public office, and an additional thousand that those public office holders have appointed to elected office. Judge Alito did not adequately explain his disagreement with the Warren Court reapportionment decisions. He refused to say that he changed his views. He did not repeat what he had suggested in some private meetings--that he was merely saying what he thought people in the Reagan White House wanted to hear and that it was just a job application. Candidly, his testimony on this critical point makes no sense. This is too fundamental a matter to be left without a solid, credible explanation. The equal protection rights and voting rights of all Americans are the fulcrum for realizing the promises of our democratic republic. Judge Alito's sweeping disagreement with the Warren Court's reapportionment decisions is not the only part of his 1985 job application which has caused me to doubt his understanding of the responsibility for the courts to intervene where the political process is broken down, corrupt or entrenched. Judge Alito also stated in that application that he believes in ``the supremacy of the elected branches of government.'' In the hearing, Judge Alito tried to retreat from this statement, describing it as ``inapt'' and ``very misleading and incorrect.'' However, he refused to disavow it, telling Senator Kennedy: ``I haven't changed my mind.'' The Supreme Court's decisions to intervene in the reapportionment cases in the 1960s had a tremendous effect on the ability of millions of Americans to participate in the political process. Yet I am concerned that his 1985 written statement reveals that he will be too deferential to the President as ``supreme'' even when needed to be a check on the Government. The elected branches have no claim to being legitimate, let alone ``supreme,'' if they are controlled by entrenched political corruption. After listening to several days of his testimony, I am left with serious questions and concerns about Judge Alito's appreciation for this critical role of the courts. These concerns are heightened by his apparent adherence to the so-called doctrine of the ``Unitary Executive.'' Judge Alito has failed to grasp the importance of the courts in providing a venue for all Americans to assert their rights. One of the clearest examples of this is Judge Alito's distressing record in cases in which individuals allege discrimination based on race, gender, or disability. Judge Alito has consistently found ways to keep the ``little guy'' from having a day in court. For example, he has held individuals trying to prove discrimination to an excessively high standard of proof, rendering their cases almost un-winnable. From the bench, he has favored the government and big companies accused of discrimination. He seems to view these cases not as examples of regular Americans struggling for equal treatment but, instead, as technical legal exercises. Judge Alito's supporters--and many on the other side of the aisle were lined up to support him well before the hearings--have cherry picked individual cases to try to show that Judge Alito was fair to average Americans. Judge Alito told us to look at his whole record and we did. In fact, a study of Judge Alito's decisions by Knight Ridder newspapers found that Judge Alito was consistently skeptical of discrimination plaintiffs, generally setting high standards of proof and finding that the plaintiffs before him did not meet those standards. The study found that he was similarly dismissive of criminal defendants alleging discrimination by the government and of immigrants fighting deportation. Noted law professors Cass Sunstein and Goodwin Liu studied the cases where Judge Alito dissented from his colleagues and reached the same conclusion. In several cases, the Third Circuit criticized Judge Alito for taking positions which would make it almost impossible for people to prove discrimination. In Bray v. Marriott Hotels, Judge Alito would have denied an African-American worker the chance to show that her employers denied her a promotion based on race. The majority criticized Judge Alito's dissent saying that a key discrimination statute ``would be eviscerated if our analysis were to halt where the dissent suggests.'' The case of Pirolli v World Flavors, Inc., is a particularly poignant example of the kind of case that gives me great concern about whether Judge Alito would uphold the rights of ordinary Americans seeking equal treatment. In that case, Kenneth Pirolli, a mentally retarded employee, brought a claim for hostile work environment based on sex and disability, alleging a pattern of sexual abuse and harassment that can only be described as disgusting. Judge Alito dissented from the Third Circuit's decision that Mr. Pirolli's case should go to a jury, not based on the merits of the claim, but essentially because he thought Mr. Pirolli's lawyer's legal brief was poorly drafted. Senator Durbin asked Judge Alito about this matter and gave him every opportunity to explain. It remains another example of Judge Alito focusing on technical details rather than on the rights of real people. As a former prosecutor, I am sensitive to the need for a fair process and a fair jury in all criminal cases, particularly the most serious ones. I am troubled that in Riley v. Taylor, Judge Alito dissented from an en banc decision in a capital case in which the Third Circuit granted a new trial because the prosecutor had improperly dismissed Black jurors. Judge Alito denigrated the defendant's use of statistical evidence to show improper exclusion of Black jurors, comparing it to a statistical analysis of the disproportionate number of recent left- handed U.S. Presidents. The majority criticized Judge Alito's inappropriate analogy, writing, ``To suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective Black jurors and Black defendants''. In response to the many cases in Judge Alito's record in which he has ruled against victims of discrimination, victims of government intrusion, and immigrants, Judge Alito's Republican supporters searched hard to find a small set of cases to show Judge Alito has not always ruled against the ``little guy.'' What is notable about these efforts is that even in the cases they have trumpeted, Judge Alito often denied any meaningful relief to the average American. Several Republicans have raised the case of United States v. Kithcart. They incorrectly suggest that in Kithcart, Judge Alito ruled in favor of an African American in a racial profiling case. Mr. Kithcart was pulled over by the police because he was African American and searched and arrested. When the case came before Judge Alito, he sent it back to the trial court to give the government a second chance to prove that the stop and search of an African American were constitutional and were not motivated by race. Judge McKee dissented from the remand saying, ``just as this record fails to establish that Officer Nelson had probable cause to arrest any Black male who happened to drive by in a black sports car, it fails to establish reasonable suspicion to justify stopping any and all such cars that happened to contain a Black male.'' When the case came back to Judge Alito on appeal, Judge Alito upheld the search and affirmed the conviction. So while he remanded the case back to the trial court, he then upheld the search and conviction in his final decision and afforded Mr. Kithcart no relief. Judge Alito's supporters have pointed to Fatin v. INS as an example of a case in which Judge Alito sided with powerless immigrants and did not defer to the Government. This is another bad example because he ultimately ruled against the immigrant, Parastoo Fatin, and she was deported. Ms. Fatin was an Iranian woman whose family had opposed the Ayatollah Khomeini and who had come to the United States as a student. She was fighting deportation and requested asylum, arguing that she would be subjected to harsh treatment as a former opponent of Iranian regime, as someone who did not practice a strict form of Islam, and as a woman-- who would have to wear a veil and live under great restrictions in Iran. As his supporters have noted, Judge Alito ruled in the case that gender-based persecution could be a basis for asylum. But Judge Alito went on to rule against Ms. Fatin anyway. So he denied her petition for review and sent her on to be deported. Judge Alito and Republican Senators seeking to bolster Judge Alito's record cited Leveto v. Lapina as an example of a case in which he protected the rights of individuals against government intrusion. It is telling about Judge Alito's record in the area of individual rights protection that in a case he trumpeted for his protection of the rights of individuals, he threw the Levetos out of court and denied them any remedy. The facts of this case are egregious. In the course of an IRS tax fraud investigation of the Levetos, armed agents ``rushed'' Dr. Leveto at the veterinary hospital where he worked when he arrived at 6:30 a.m., patted him down, and then held him in a small room for over an hour, not allowing him to speak to anyone or make any calls. They then accompanied Dr. Leveto to his home where they patted down Mrs. Leveto, who was still in her nightgown, and then detained and interrogated her for 6 hours. Meanwhile, other agents took Dr. Leveto back to the hospital where they held him in a closed room for 6 more hours. During this 6 hours, he was not permitted external communications, was accompanied on bathroom breaks, and was interrogated without Miranda warnings, while other agents searched the hospital. During the course of the search IRS agents sent hospital employees home and turned away clients in the parking lot, informing them that the hospital was closed until further notice. Despite acknowledging numerous violations, Judge Alito dismissed the Levetos' appeal and their case based on ``uncertainty'' in the case law, and threw them out of court. Supporters of Judge Alito have cited the case of Brinson v. Vaughn as an example of a case in which Judge Alito sided with a victim of discrimination, reversing a conviction because Black jurors had been improperly excluded from the jury pool. This was an easy case given the extraordinary facts involved. In Brinson, the prosecutor dismissed 13 of 14 prospective Black jurors and had previously made a training video in which he urged prosecutors to dismiss Black prospective jurors from the jury pool. This does not reassure me about my concern that Judge Alito will only give credence to claims of discrimination in extreme cases. Indeed, in Riley v. Taylor, when an en banc majority of the Third Circuit found that Black jurors had been improperly dismissed from the jury pool, Judge Alito disagreed and denigrated the defendant's use of statistical evidence to show improper exclusion of Black jurors, comparing it, as has been previously noted, to a statistical analysis of the disproportionate number of recent left- handed U.S. Presidents. The role of courts should be to protect and make sure there is a fair forum for the powerless and even the unpopular. This is the reason the courts are the one undemocratic branch. I am concerned that rather than demonstrating an understanding of the effect of the law on the lives of real Americans as Justice O'Connor has shown, Judge Alito would close the courthouse doors to those Americans most in need of the courts to protect their rights. In the next few years, the Supreme Court will hear many challenges to political entrenchment. Critical provisions of the Voting Rights Act, VRA, Congress's part in guaranteeing equal access to voting, the fundamental machinery of democracy, were upheld by the Warren Court in South Carolina v. Katzenbach, 1966, by an 8 to 1 vote. The VRA will need to be reauthorized before it expires in 2007. Subsequent court challenges will be critical to fairness to minority voters. The Supreme Court will soon hear a challenge to Texas Republicans' partisan mid-Census redrawing of congressional districts. There are questions before the Supreme Court this term about campaign finance laws. We are seeing exposed in the news every day a culture of corruption through money and access that has taken root in Washington, by which one political party has sought to entrench itself as a permanent majority. The cost to Americans is high if we in the Senate get it wrong. I go back to the central question I asked at the outset of Judge Alito's hearing: Will this nominee serve to protect the fundamental rights and liberties of all Americans? Based on Judge Alito's record, I have no confidence that he will provide a check against either an overreaching President or entrenched political power, nor that he will serve to protect Americans' fundamental rights and liberties. I thank the distinguished Presiding Officer. I yield to the distinguished Senator from California.

Mr. LEAHY. I thank the distinguished President pro tempore, my friend of over 30 years. The debate has worked out well by going back and forth, showing the usual comity here in the Senate. I began my discussion of Judge Alito's nomination for a lifetime appointment to the Nation's highest Court with the same issue I began my questions to Judge Alito and, before that, to now Chief Justice Roberts: That is the issue of checks and balances on Government power. Obviously, the answers given by Chief Justice Roberts I found satisfactory. I voted for him. The answers by Judge Alito, as I will explain further, I did not find satisfactory. It is important because we are at a pivotal point in our Nation's history. This is a time of unprecedented governmental intrusion into the lives of ordinary Americans. The President has attempted to justify secret warrantless wiretapping of Americans, the evasion of legal bans against torture, and the detention of American citizens without due process of law. The Bush administration is making extraordinary claims of essentially unlimited power. There are troubling signs that this nomination is part of that effort by the President and Vice President to uphold Presidential claims of unchecked power and to upset the careful balance of our system of government, a system of government that was so carefully crafted by the Framers in our national charter, the Constitution. I have said I do not believe that Judge Alito would be that kind of a careful check and balance against Presidential overreaching. Because of that, I said I would not support his nomination. I don't take this position lightly. There are nine members of the Supreme Court, seven of them nominated by Republican Presidents. I have voted for eight of those nine, but I will not for this one. I feel that the judge's record, his missed opportunities during the hearings to answer concerns about his record, leaves me to wonder whether he appreciates the role of the Supreme Court as a protector of Americans' fundamental rights and liberties. It is a test he failed. The Supreme Court has to be a source of justice. It has to be an institution where the Bill of Rights and human dignity are honored. It must be an institution dedicated to the mission embodied in the words etched in Vermont marble above the entrance to the Court where it says ``equal justice under the law.'' It must be an institution which carries on the spirit enshrined in our Constitution, refined following the Civil War, and realized further over the course of landmark decisions in Brown v. Board of Education and Baker v. Carr. Judge Alito's record and testimony demonstrate that he does not understand the vital role of the courts in implementing the constitutional guarantees of equal protection and equal dignity for all Americans. A stark example of his failing the test took place during his confirmation hearing when I asked him a question Senator Specter had asked then Justice Rehnquist at his hearing to become the Chief Justice. I know; I was at the hearing. The question was a basic one: whether the Supreme Court can be stripped of jurisdiction to protect fundamental constitutional rights. I asked Judge Alito whether the Supreme Court could be stripped of jurisdiction to hear first amendment cases involving freedom of the press or freedom of religion or freedom of speech. The First Amendment is probably the greatest part of our Bill of Rights. I told him Senator Specter had previously insisted on an answer from Justice Rehnquist and that Justice Rehnquist had answered that it would not be constitutional to strip the Court of its jurisdiction, its vital function to protect fundamental rights. Unlike the late Chief Justice, Judge Alito responded as though it were merely an academic question. He said that there are scholars on both sides. He refused to state his view. This is a basic and fundamental issue for anybody aspiring to be a member of the Supreme Court. Justice Rehnquist got it right. For that matter, Judge Bork got it right. Judge Alito got it wrong. When he failed to respond to my question, Senator Specter revisited it, but Judge Alito still failed the straightforward test. I asked the same question with respect to the fourth amendment, the fifth amendment, and the sixth amendment. Again, there was no answer. These are the constitutional amendments that guarantee our privacy rights, our protection against unreasonable searches and seizures, our right to due process, our right against self-incrimination, our protection against Government takings, and our right to public trial and to counsel. These are basic American rights that help to define us as a free people. They control the intrusiveness of Government power. Judge Alito has shown through his answers that he does not appreciate the constitutional role of the Supreme Court as the protector of America's fundamental rights. In fact, in our system of checks and balances, the Supreme Court has to be the ultimate defender of Americans' constitutional rights. Judge Alito's refusal to acknowledge that in his answers is more than deeply troubling; it is stunning. It is stunning that anybody up for a lifetime appointment to the Supreme Court of the United States would not answer such basic questions. Suppose if by legislative act we could remove the constitutional right to freedom of religion or free speech how quickly we could remove our freedoms as Americans. Again, Justice Rehnquist and Judge Bork had it right. Judge Alito had it wrong. I even gave him a concrete example. I asked whether in the early 1950s, Congress could have stripped the courts, including the Supreme Court, of jurisdiction to hear cases involving racial segregation in schools. This historical hypothetical raised the question whether the Supreme Court could have been prevented from deciding Brown v. Board of Education and enforcing the equal protection clause of the Constitution and calling for an end to unconstitutional racial segregation. His answer was no better. He was clearly stumped. No Senator who truly cares about civil rights, equal rights, freedom of religion and speech and the press can have any confidence that Judge Alito understands the critical role of the Supreme Court in protecting those rights. I ask unanimous consent that letters from civil rights organizations in opposition to Judge Alito's nomination be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to speak about Matt Holt, who has served the Senate with distinction for 25 years. As a benefits and retirement counselor and deputy for employee benefits and financial services in the Senate Disbursing Office, Matt Holt has committed his talents and energy to serving Senators and staff for over two decades. His career here in the Senate has been exemplary. He is not only hardworking and dedicated but also friendly, helpful, and patient. He always takes the time to fully answer our questions, and he has become a tremendous resource for the Senate Disbursing Office. Matt is truly an asset to the Senate, and all of us here in the Senate community are grateful for his outstanding dedication and hard work. An avid outdoorsman, Matt is looking forward to spending time fishing, camping, and hiking with his wife Jeanne and his children Jessica and Ben. He leaves with our appreciation and best wishes for a happy and relaxing retirement. He certainly has earned it.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to introduce the Fair and Independent Judiciary Act of 2006 because ensuring a fair and independent judiciary is critical to the system of checks and balances established in our Constitution. This legislation seeks to preserve the public confidence that our Federal courts enjoy, and that our courts need to adequately fulfill their constitutional role in our system. Revelations that judges and justices are receiving gifts from parties that may appear before them or have a financial interest in a litigating party undermine the public's trust. For the past 4 years, editorial boards across the country have called our attention to the appearance of impropriety that occurs when Federal judges accept gifts and attend lavish private seminars sponsored by well-heeled corporations. I have proposed similar legislation in previous Congresses to address the problem of private judicial seminars. Last year, despite my ongoing concerns about reports of judicial activities that undermine public confidence, I withheld these provisions from a judicial pay raise bill. I had hoped that the Federal judiciary would engage in self-regulation on these timely and substantive ethical issues. Unfortunately, recent press reports show continued appearances of impropriety, even by a member of the Supreme Court. This legislation does not prohibit judges and justices from attending educational seminars. Instead, it simply requires them to learn and disclose the private sponsors of the seminars and make that information public. Then, they would be allowed to attend the seminars, but at the court's expense, instead of having special interests pick up their tabs. Another issue that threatens to undermine confidence in our judicial impartiality was highlighted at the recent hearings for Judge Alito. Some judges fail to monitor their financial holdings so that they can properly recuse themselves from cases where there may be a conflict of interest. One way to be sure that the recusal laws Congress enacted are being followed by all Federal judges is to allow more transparency of a judge's financial conflicts. This legislation contains a provision to improve the public's access to the recusal lists that all judges keep within their chambers or clerks' offices. Because the public's trust is at stake, it is important to require that private seminar providers fully disclose the litigation interests of their sponsors and to improve access to judicial conflicts. The American people deserve a Federal judiciary that is beyond reproach--in appearance, and otherwise. The Fair and Independent Judiciary Act seeks to ensure continued public confidence in our Federal courts. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to introduce the Fair and Independent Judiciary Act of 2006 because ensuring a fair and independent judiciary is critical to the system of checks and balances established in our Constitution. This legislation seeks to preserve the public confidence that our Federal courts enjoy, and that our courts need to adequately fulfill their constitutional role in our system. Revelations that judges and justices are receiving gifts from parties that may appear before them or have a financial interest in a litigating party undermine the public's trust. For the past 4 years, editorial boards across the country have called our attention to the appearance of impropriety that occurs when Federal judges accept gifts and attend lavish private seminars sponsored by well-heeled corporations. I have proposed similar legislation in previous Congresses to address the problem of private judicial seminars. Last year, despite my ongoing concerns about reports of judicial activities that undermine public confidence, I withheld these provisions from a judicial pay raise bill. I had hoped that the Federal judiciary would engage in self-regulation on these timely and substantive ethical issues. Unfortunately, recent press reports show continued appearances of impropriety, even by a member of the Supreme Court. This legislation does not prohibit judges and justices from attending educational seminars. Instead, it simply requires them to learn and disclose the private sponsors of the seminars and make that information public. Then, they would be allowed to attend the seminars, but at the court's expense, instead of having special interests pick up their tabs. Another issue that threatens to undermine confidence in our judicial impartiality was highlighted at the recent hearings for Judge Alito. Some judges fail to monitor their financial holdings so that they can properly recuse themselves from cases where there may be a conflict of interest. One way to be sure that the recusal laws Congress enacted are being followed by all Federal judges is to allow more transparency of a judge's financial conflicts. This legislation contains a provision to improve the public's access to the recusal lists that all judges keep within their chambers or clerks' offices. Because the public's trust is at stake, it is important to require that private seminar providers fully disclose the litigation interests of their sponsors and to improve access to judicial conflicts. The American people deserve a Federal judiciary that is beyond reproach--in appearance, and otherwise. The Fair and Independent Judiciary Act seeks to ensure continued public confidence in our Federal courts. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. To suggest that I have said--I would like to find the quote where I said that Judge Alito, all by himself, would do away with all the liberties of Americans. I see the distinguished senior Senator from Florida, and I yield to the Senator.