Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, last Thursday, at his press conference, the President of the United States gave his reasons to justify the use of military force to remove Saddam Hussein from power. The President said again that he has not made up his mind to go to war, but his own advisers are saying that even if Iraq fully complies with U.N. Security Council Resolution 1441, Saddam Hussein must be removed from power. The President said his goal is protecting the American people from terrorism. That is a goal we all share. But he offered no evidence that Iraq had anything to do with the September 11 attacks or any details of Iraq's links to al-Qaida. He offered no new information about the potential costs of a war, either in American and Iraqi lives, or in dollars. Both Republicans and Democrats have urged the President to be more forthcoming with the American people, to tell us what sacrifices may be involved--not to have Cabinet members come to the Senate and the House, and when asked how much they estimate a war and its aftermath may cost, say: We have no idea. We know the administration has estimated the costs, yet the President dismissively says ``ask the spenders'' in Congress, knowing full well that Congress appropriates funds, it is the President who spends them. It is disingenuous, at best, to refuse to level with the American people at a time of rapidly escalating deficits. We know it has already cost billions of dollars just to send our troops over there, but how many more tens or hundreds of billions of dollars, may be added to the deficit? The President is apparently ready to send hundreds of thousands of America's sons and daughters into battle without saying anything about the costs and risks. The President repeatedly spoke of the danger of ``doing nothing,'' as if doing nothing is what those who urge patience and caution--with war only as a last resort--are recommending. In fact, virtually no one is saying we should do nothing about Saddam Hussein. Even most of the millions of people who have joined protests and demonstrations against the use of force without U.N. Security Council authorization are not saying the world should ignore Saddam Hussein. Yet that is the President's answer to those who oppose a preemptive U.S. invasion, and who, contrary to wanting to do nothing, want to give the United Nations more time to try to solve this crisis without war. The President also failed to address a key concern that divides Americans, that divides us from many of our closest European allies, that divides our allies from each other, and that divides the U.N. Security Council. That issue is not whether or not Saddam Hussein is a deceptive, despicable, dangerous despot who should be disarmed. There is little, if any, disagreement about that. Nor is it whether or not force should ever be used. Most people accept that the United States, like any country, has a right of self- defense if it is faced with an imminent threat. If the U.N. inspectors fail to disarm Iraq, force may become the only option. Most people also agree that a United States-led invasion would quickly overwhelm and defeat Iraq's ill-equipped, demoralized army. Rather, the President said almost nothing about the concern shared by so many people, that by attacking Iraq to enforce Security Council Resolution 1441 without the support of key allies on the U.N. Security Council, we risk weakening the Security Council's future effectiveness and our own ability to rally international support not only to prevent this war and future wars, but to deal with other global threats like terrorism. This concern is exacerbated by the increasing resentment throughout the world of the administration's domineering and simplistic ``you are either with us or against us'' approach. It has damaged longstanding relationships, relationships that have taken decades of trust and diplomacy to build, both with our neighbors in this hemisphere and our friends across the Atlantic. The President says that if the Security Council does not support the use of force today, it risks becoming irrelevant. The President has it backward. The Security Council would not become irrelevant because it refuses to obey the President of the United States. Rather, the Security Council's effectiveness is threatened if the United States ignores the will of key allies on the Security Council regarding the enforcement of a Security Council resolution. The President was also asked by several members of the press why there is such fervent opposition to his policy among Americans and some of our oldest allies when only a year and a half ago, after the September 11 attacks, the whole world was united in sympathy with the United States. He had no answer. The President should heed the words of former National Security Adviser Brent Scowcroft, who was an architect of the 1991 Gulf War. General Scowcroft has strongly criticized the administration's ad hoc approach based on a ``coalition of the willing'' which the general calls ``fundamentally, fatally flawed.'' General Scowcroft said: As we've seen in the debate about Iraq, it's already given us an image of arrogance and unilateralism, and we're paying a high price for that image. If we get to the point where everyone secretly hopes the United States gets a black eye because we're so obnoxious, then we'll be totally hamstrung in the war on terror. We'll be like Gulliver with the Lilliputians. For 200 years, people around the world have looked up to the United States because of our values, our integrity, our tolerance, and our respect for others. These are the qualities that have set the United States apart. Today, while most countries share our goal of disarming Saddam Hussein, we are being vilified for our arrogance, for our disdain for international law, and our intolerance of opposing views. A distinguished American career diplomat, John Brady Kiesling, echoed General Scowcroft's concerns about the practical harm done to U.S. interests and influence abroad. He recently wrote to Secretary of State Colin Powell, proffering his resignation as an act of protest about the administration's policy toward Iraq. I suspect Mr. Kiesling's eloquent and heartfelt explanation of how he reached the difficult decision to give up his career expresses the feelings and concerns of some other American diplomats who are representing the United States at our embassies and missions around the world. I ask unanimous consent that Mr. Kiesling's letter to the Secretary be printed in the Record at the conclusion of my remarks.

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

Mr. LEAHY. While I was disappointed by President Bush's remarks last week, the Bush administration and the Pakistani Government should be commended for the capture of Khalid Shaikh Mohammed, one of al-Qaida's top leaders who was reportedly the mastermind of the September 11 attacks. Whether others within al-Qaida will quickly fill Mr. Mohammed's shoes remains to be seen, but the fact that the U.S. Government and other governments are methodically tracking these people down sends an important message and should give some comfort to the American people. This is encouraging. Let's hope we can soon celebrate the capture of Osama bin Laden, because capturing the leaders of al- Qaida should be our highest priority. But the world is increasingly apprehensive as the United States appears to be marching inexorably towards war with Iraq. Today, there are more than 250,000 American men and women in uniform in the Persian Gulf preparing for the order to attack. We hear that the decision must be made within a matter of days because it is too costly to keep so many troops deployed overseas. In other words, now that we have spent billions of dollars to ship all those soldiers over there, we need to use them because we cannot back down now, as I have heard some people say. Frankly, this is one of the worst reasons possible to rush into war. We should not back down. Saddam Hussein must be disarmed. Doing nothing--I agree with the President about this--would mean the United Nations is unwilling to enforce its own resolutions concerning perhaps the most serious threat the world faces today, the proliferation of weapons of mass destruction. That would be unacceptable. The U.N. Security Council ordered Iraq to fully disclose its weapons of mass destruction. Iraq has not yet done so. I agree with those who say the only reason Saddam Hussein is even grudgingly cooperating with the U.N. inspectors is the buildup of U.S. troops on Iraq's border. I have commended the President for refocusing the world's attention on Saddam Hussein's failure to disarm. I also recognize the time may come when the use of force to enforce the U.N. Security Council resolution is the only option. But are proposals to give the U.N. inspectors more time unreasonable, when it could solidify support for the use of force if that becomes the only option? Despite the President's assertion that Iraq poses an imminent threat to the United States, that assertion begs credulity when the U.N. inspectors are making some progress and a quarter of a million American soldiers are poised on Iraq's border. Absent a credible, imminent threat, a decision to enforce Resolution 1441 should only be made by the Security Council--not by the United States or any other government alone. The President says war is a last resort. If he feels that way, why do he and his advisors want so desperately to short-circuit the inspection process? Why is he so anxious to spend billions of dollars to buy the cooperation of other countries, other countries that do not yet believe war is necessary? Why is he so unconcerned about the predictably hostile reaction in the Muslim world to the occupation of Iraq, perhaps for years, by the United States military? Why is the President so determined to run roughshod over our traditional alliances and partnerships which have served us well and whose support we need both today and in the future? I cannot pretend to understand the thinking of those in the administration who for months or even longer have seemed possessed with a kind of messianic zeal in favor of war. A preemptive, U.S. attack against Iraq without a declaration of war by Congress or the U.N. Security Council's support may be easy to win, but it could violate international law and cause lasting damage to our alliances and to our ability to obtain the cooperation of other nations in meeting so many other global challenges. Just recently, Homeland Security Secretary Tom Ridge warned that a war with Iraq could bring more threats and more terrorist attacks within the United States. The CIA Director has testified that Saddam Hussein is more likely to use chemical or biological weapons if he is attacked. Yet we are marching ahead as though these warnings don't matter. I have said before, this war is not inevitable. I still believe it can be avoided. But I fear that the President, despite opposition among the American people, in the U.N., and around the world, is no longer listening to anyone except those within his inner circle who are eager to fight. The President says we must overthrow Saddam Hussein to protect the American people. Saddam Hussein is a threat, but North Korea, on the verge of acquiring half a dozen nuclear weapons, poses a far more serious and immediate threat to the United States and the world. Yet the administration is too preoccupied with Saddam Hussein to be distracted by North Korea, even though North Korea has shown no qualms about selling ballistic missiles and anything else that will earn them money. It makes no sense. I hope the Iraqi government comes to its senses. I hope we do not walk away from the U.N. I hope we don't decide that just because our troops are there, we cannot afford to wait. Exhibit 1 February 27, 2003. Dear Mr. Secretary: I am writing you to submit my resignation from the Foreign Service of the United States and from my position as Political Counselor in U.S. Embassy Athens, effective March 7. I do so with a heavy heart. The baggage of my upbringing included a felt obligation to give something back to my country. Service as a U.S. diplomat was a dream job. I was paid to understand foreign languages and cultures, to seek out diplomats, politicians, scholars and journalists, and to persuade them that U.S. interests and theirs fundamentally coincided. My faith in my country and its values was the most powerful weapon in my diplomatic arsenal. It is inevitable that during twenty years with the State Department I would become more sophisticated and cynical about the narrow and selfish bureaucratic motives that sometimes shaped our policies. Human nature is what it is, and I was rewarded and promoted for understanding human nature. But until this Administration it had been possible to believe that by upholding the policies of my president I was also upholding the interests of the American people and the world. I believe it no longer. The policies we are now asked to advance are incompatible not only with American values but also with American interests. Our fervent pursuit of war with Iraq is driving us to squander the international legitimacy that has been America's most potent weapon of both offense and defense since the days of Woodrow Wilson. We have begun to dismantle the largest and most effective web of international relationships the world has ever known. Our current course will bring instability and danger, not security. The sacrifice of global interests to domestic politics and to bureaucratic self-interest is nothing new, and it is certainly not a uniquely American problem. Still, we have not seen such systematic distortion of intelligence, such systematic manipulation of American opinion, since the war in Vietnam. The September 11 tragedy left us stronger than before, rallying around us a vast international coalition to cooperate for the first time in a systematic way against the threat of terrorism. But rather than take credit for those successes and build on them, this Administration has chosen to make terrorism a domestic political tool, enlisting a scattered and largely defeated Al Qaeda as its bureaucratic ally. We spread disproportionate terror and confusion in the public mind, arbitrarily linking the unrelated problems of terrorism and Iraq. The result, and perhaps the motive, is to justify a vast misallocation of shrinking public wealth to the military and to weaken the safeguards that protect American citizens from the heavy hand of government. September 11 did not do as much damage to the fabric of American society as we seem determined to do to ourselves. Is the Russia of the late Romanovs really our model, a selfish, superstitious empire thrashing toward self- destruction in the name of a doomed status quo? We should ask ourselves why we have failed to persuade more of the world that a war with Iraq is necessary. We have over the past two years done too much to asset to our world partners that narrow and mercenary U.S. interests override the cherished values of our partners. Even where our aims were not in question, our consistency is at issue. The model of Afghanistan is little comfort to allies wondering on what basis we plan to rebuild the Middle East, and in whose image and interests. Have we indeed become blind, as Russia is blind in Chechnya, as Israel is blind in the Occupied Territories, to our own advice, that overwhelming military power is not the answer to terrorism? After the shambles of post-war Iraq joins the shambles in Grozny and Ramallah, it will be a brave foreigner who forms ranks with Micronesia to follow where we lead. We have a coalition still, a good one. The loyalty of many of our friends is impressive, a tribute to American moral capital built up over a century. But our closest allies are persuaded less that was is justified than that it would be perilous to allow the U.S. to drift into complete solipsism. Loyalty should be reciprocal. Why does our President condone the swaggering and contemptuous approach to our friends and allies this Administration is fostering, including among its most senior officials. Has oderint dum metuant [Ed. note: Latin for ``Let them hate so long as they fear,'' thought to be a favorite saying of Caligula] really become our motto? I urge you to listen to America's friends around the world. Even here in Greece, purported hotbed of European anti- Americanism, we have more and closer friends than the American newspaper reader can possibly imagine. Even when they complain about American arrogance, Greeks know that the world is a difficult and dangerous place, and they want a strong international system, with the U.S. and EU in close partnership. When our friends are afraid of us rather than for us, it is time to worry. And now they are afraid. Who will tell them convincingly that the United States is as it was, a beacon of liberty, security and justice for the planet? Mr. Secretary, I have enormous respect for your character and ability. You have preserved more international credibility for us than our policy deserves, and salvaged something positive from the excesses of an ideological and self-serving Administration. But your loyalty to the President goes too far. We are straining beyond its limits an international system we built with such toil and treasure, a web of laws, treaties, organizations and shared values that sets limits on our foes far more effectively than it ever constrained America's ability to defend its interests. I am resigning because I have tried and failed to reconcile my conscience with my ability to represent the current U.S. Administration. I have confidence that our democratic process if ultimately self-correcting, and hope that in a small way I can contribute from outside to shaping policies that better serve the security and prosperity of the American people and the world we share.

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to take a moment today to speak about an issue that has been discussed in the press recently, which is the use of torture to obtain information from persons who are suspected of being terrorists. It is well-established that torture is a violation of international law, by which our country is bound. It is also a violation of our own laws. Yet commentators have been quoted by the press saying that in certain limited circumstances, when the threat is a possible terrorist attack, the use of torture is justified. Some have even suggested that since torture is used, why not simply admit it and accept it as a fact of life? These are not easy questions. Who does not want to do everything possible to save innocent lives? We all do. But the United States is a nation of laws, and I reject the view that torture, even in such compelling circumstances, can be justified. I would hope all countries would uphold their obligations under international law, but that is not the case. It is the 21st century, and yet torture is used by government security forces in some 150 countries. We have often spoken about how important it is not to let the terrorists win. We try not to let ourselves be intimidated. We take precautions, but we go about our daily lives. The same holds true of the tactics terrorists use. If we don't protect the civil liberties that distinguish us from terrorists, then the terrorists have won. Torture is among the most heinous crimes, and there is no justification for its use. One need only review history to understand why there can be no exception to torture. The torture of criminal suspects flagrantly violates the presumption of innocence on which our criminal jurisprudence is based, and confessions extracted as a result of torture are notoriously unreliable. Also, history has shown that once an exception is made for torture, it is impossible to draw the line. If we can justify torture in the United States, then what is to prevent its use in China, Iraq, Chile, or anywhere else? If torture is justified to obtain information from a suspected terrorist, then why not torture the terrorist's wife and children, or his friends and acquaintances who may know about his activities or his whereabouts? In fact, that is what happens in many countries. There is also the issue of what constitutes torture versus acceptable, albeit harsh, treatment. Torture is defined in the Convention Against Torture, which the United States ratified, as ``any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted upon a person for such purposes as obtaining from him or a third person information or a confession . . .''. A March 4 article in the New York Times described the treatment of Afghan prisoners at the Bagram air base. Two former prisoners, both of young age, recently died in U.S. military custody. Other prisoners described being forced to stand naked in a cold room for 10 days without interruption, with their arms raised and chained to the ceiling and their swollen ankles shackled. They also said they were denied sleep for days and forced to wear hoods that cut off the supply of oxygen. I do not believe that prisoners of war, some of whom are suspected of having killed or attempted to kill Americans, should be rewarded with comforts. Harsh treatment may, at times, be justified. However, while I cannot say whether the treatment described by these Afghan prisoners amounts to torture under international law, it does sound cruel and inhumane. The inhumane treatment of prisoners, whoever they are, is beneath a great nation. It is also illegal. That is the law whether U.S. military officers engage in such conduct themselves, or they turn over prisoners to the government agents of another country where torture is commonly used, in order to let others do the dirty work. Some of these Afghan prisoners may be guilty of war crimes. Some may be members of al-Qaida but may have never fired a shot. Others may be completely innocent. But regardless, I was not proud when I read that article, and when I think of how often I and other Members of Congress have criticized other governments for treating prisoners that way. It undermines our reputation as a Nation of laws, it hurts our credibility with other nations, and it invites others to use similar tactics. I am encouraged that the Department of Defense is conducting a review of the deaths of the two Afghans at Bagram, both of which were ruled homicides by an American pathologist. Those responsible for what happened must be held accountable. But I also urge the Department to review whether the interrogation techniques used there, and at other U.S. military facilities are fully consistent with international law. It should not take a homicide to reveal that prisoners in U.S. custody are being mistreated. I yield the floor.

Mr. LEAHY

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

Mr. LEAHY. Mr. President, what is the parliamentary situation?

Mr. LEAHY. I thank the distinguished Presiding Officer. Senator Graham's Return I see the distinguished senior Senator from Florida in the Chamber. First, I will say on a personal basis, I am delighted to see him back. He is looking as healthy as he did before he left. I understand he is even more healthy now. For someone like myself who has probably a couple pounds more than I would like to be carrying, I noticed that he has found a way of losing a little weight. I suspect that what he has gone through is not something that is going to catch on with the various diet fads. I had a chance to chat with the distinguished senior Senator last night, and he not only sounds even healthier than when he left, but he has the same sense of verve and sense of humor as he had before he left. I yield to the distinguished Senator from Florida, if he would like to take the floor at this point, such time as he needs.

Mr. LEAHY. Mr. President, I thank my good friend from Florida for his statement. I again welcome him back. I heard in his absence statements from both Republicans and Democrats worried about him. I am glad to see him back. The Senator and his wife are dear and close friends of mine and my wife. Sometimes people forget the Senate is a family. There are only 100 of us. We tend to know each other and spend time with each other. No matter what political positions we take, we worry about each other's health. We talk about each other's children and where they are going to school. This is an example of those who were concerned about a very popular Senator. I am glad to see him looking in such great health. I welcome him back. I thank him, of course, for his very thoughtful statement. I am glad to hear the quotes from a book that I probably enjoyed as much as any in the last 10 years, David McCullough's book on John Adams. I do not own the publishing company or anything else, but I recommend that book to anyone who wants to read it.

Mr. LEAHY. Of course.

Mr. LEAHY. Mr. President, it was just 2 days ago we welcomed the Vice President to the Senate for debate scheduled by the majority. I said at that time that I am always glad to see the Vice President here, even though it is a rare appearance for a Vice President of either party. I wish he had been here for debate about the impending war with Iraq. We are probably the only parliamentary body in the democratic world that has not had a major debate during the past few weeks on Iraq and the war. Or he might have been here for debate on terrorism or homeland defense or the need for action to stimulate the economy and improve the lives of the millions of Americans who have lost jobs over the last 2 years. Actually, there are more Americans losing jobs in a 2-year period than I think has occurred since I have been old enough to vote. Or the Senate might have been acting on a prescription drug benefit for seniors. Apparently, we are not here to have that debate today nor did the majority schedule debate in the Senate on Tuesday on those important matters. Instead, we are here to hear again the arguments about Mr. Estrada. But not much has changed since last week or since this Tuesday. The administration's obstinacy continues to impede Senate consideration of this nomination. The distinguished Democratic leader, Senator Daschle, pointed a way out of this impasse in a letter to the President on February 11. It is regrettable the President did not respond to that reasonable letter to resolve the issue. Instead, the letter sent this week to the distinguished majority leader, Senator Frist, was not a response to Senator Daschle's realistic approach, but a further effort to minimize the Senate's role in this process by proposing radical changes in Senate rules. I have great respect for the Office of the Presidency, for whoever holds it. One thing I have learned in 29 years is that Presidents come and Presidents go. The Office of the Presidency exists with its responsibilities, its duties, its rules, its traditions. Just as Senators come and go. No Senator holds a seat for life. No Senator owns a seat in the Senate. But the Senate stays, and the Senate has its rights, and it has its privileges, and it also has its obligations. It has its constitutional duties. I have been in the Senate with six different Presidents. I have never been in the Senate with a White House that seems to have less understanding of the role of the Senate or more of a desire to overturn well over 200 years of practice and procedures in the Senate. I have never known a White House that thinks more just for the moment and not for the long term. This may be why we are fast approaching the point where, as some suggest, the White House may get half of its goal of regime change, but they may get it in Great Britain. But I digress. The real double standard in the matter of the Estrada nomination is that the President selected Mr. Estrada in large part based upon his 4\1/2\ years of work in the Solicitor General's Office, as well as for his ideological views. The administration undoubtedly knows what those views are and have seen those work papers. They know what he did. They picked him based on that, but they said even though we picked him based on that, we do not want the Senate to know what it was. We in the Senate cannot read his work, the work papers that would shed the most light on why this 41-year-old should have a lifetime seat on the Nation's second highest court. We are to a point where the White House simply says, trust us, we know what he wrote and how he thinks and will make decisions, but we do not want you to know what he wrote, just rubberstamp him. Actually, I would remind them of that made-up quote that President Reagan used to such effect--I happen to agree with President Reagan on it--trust but verify. We would like to verify. President Reagan said, ``Trust but verify.'' They say, trust us. We say, let us verify. So actually this whole matter is in the hands of the White House. They could move forward with Mr. Estrada easily if they wanted to. Instead, the White House has taken on the attitude that they want to carry out the responsibilities of the Presidency, as awesome as they are, but they also want to carry out the responsibilities of the Senate. I think they have their hands full carrying out the duties of the White House, with the impending war. We have millions of Americans out of work. We have a stock market that has tanked. We have runaway budget deficits. This is an administration that inherited the largest surpluses in history, and they are about to create the largest deficits in history; an administration that inherited a robust stock market, and we are about to see the stock market go to an all-time low. They have enough to worry about. Let us worry about carrying out the duties of the Senate. If they would simply cooperate, we could go forward with Mr. Estrada. I mention this because I do not want anybody to make a mistake. The control and the scheduling of whether there will be a vote on Mr. Estrada is in the hands of the White House. There seems to be a perversion to require the Senate to stumble in the dark about Mr. Estrada's views when he shared these views quite freely with others, and when the administration selected him for this high office based on these views. Justice Scalia wrote just last year: Even if it were possible to select judges who do not have preconceived views on legal issues, it would hardly be desirable to do so. Proof that a Justice's mind at the time he joined the Court was complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias. It was just a week ago that I thanked the Democratic leader and assistant leader and Democratic Senators for speaking and voting in favor of preserving the integrity of the confirmation process. We are acting to safeguard our Constitution and the special role of the Senate in ensuring that our Federal courts have judges who will fairly interpret the Constitution and the statutes we pass for the sake of all Americans. The administration's obstinacy continues to impede progress to resolve this standoff. The administration remains intent on packing the Federal circuit courts and on insisting that the Senate rubber-stamp its nominees without fulfilling the Senate's constitutional advice and consent role in this most important process. The White House could have long ago helped solved the impasse on the Estrada nomination by honoring the Senate's role in the appointment process and providing the Senate with access to Mr. Estrada's legal work. Past administrations have provided such legal memoranda in connection with the nominations of Robert Bork, William Rehnquist, Brad Reynolds, Stephen Trott and Ben Civiletti, and even this administration did so with a nominee to the EPA. Senator Durbin noted this week that the administration is giving Mr. Estrada bad advice. Instead, the administration should instruct the nominee to answer questions about his views--consistent with last year's Supreme Court opinion by Justice Scalia--and to stop pretending that he has no views. The White House is using ideology to select its judicial nominees but is trying to prevent the Senate from knowing the ideology of these nominees when it evaluates them. It was not so long ago when then- Senator Ashcroft was chairing a series of Judicial Committee hearings at which Edwin Meese III testified: I think that very extensive investigations of each nominee--and I don't worry about the delay that this might cause because, remember, those judges are going to be on the bench for their professional lifetime, so they have got plenty of time ahead once they are confirmed, and there is very little opportunity to pull them out of those benches once they have been confirmed--I think a careful investigation of the background of each judge, including their writings, if they have previously been judges or in public positions, the actions that they have taken, the decisions that they have written, so that we can to the extent possible eliminate people eliminate persons who would turn out to be activist judges from being confirmed. Timothy E. Flanigan, an official from the administration of the President's father, and who more recently served as Deputy White House Counsel, helping the current President select his judicial nominees, testified strongly in favor of ``the need for the Judiciary Committee and the full Senate to be extraordinarily diligent in examining the judicial philosophy of potential nominees.'' He continued: In evaluating judicial nominees, the Senate has often been stymied by its inability to obtain evidence of a nominee's judicial philosophy. In the absence of such evidence, the Senate has often confirmed a nominee on the theory that it could find no fault with the nominee. I would reverse the presumption and place the burden squarely on the shoulders of the judicial nominee to prove that he or she has a well-thought-out judicial philosophy, one that recognizes the limited role for Federal judges. Such a burden is appropriately borne by one seeking life tenure to wield the awesome judicial power of the United States. Although the Senate Judiciary Committee has long recognized correctly, in my view, that positions taken as an advocate for a client do not necessarily reflect the nominee's own judicial philosophy, a long history of cases in which a nominee has repeatedly urged courts to engage in judicial activism may well be probative of a nominee's own philosophy. Now that the President is not a popularly elected Democrat but a Republican, these principles seem no longer to have any support within the White House or the Senate Republican majority. Fortunately, our constitutional principles and our Senate traditions, practices and governing rules do not change with the political party that occupies the White House or with a shift in majority in the Senate. Along with this current impasse, the administration has shown unprecedented disregard for the concerns of Senators in taking other unprecedented actions, including renominating both Judge Charles Pickering, despite his ethical lapses, and Judge Priscilla Owen, despite her record as a conservative ``activist'' judge. Both were rejected by the Senate Judiciary Committee after fair hearings and open debate last year. Sending these re-nominations to the Senate is unprecedented. No judicial nominee who has been voted down has ever been re-nominated to the same position by any President. This morning the Republican majority took another unprecedented step in holding a hearing on the re-nomination of Judge Owen, whose nomination had been rejected earlier by the committee. The White House, in conjunction with the new Republican majority in the Senate, is choosing these battles over nominations purposefully. Dividing rather than uniting has become their modus operandi. Among the consequences of this partisan strategy is that for the last month, the Senate has been denied by the Republican leadership meaningful debate on the situation in Iraq. I commend Senator Byrd, Senator Kennedy and the other Senators on both sides of the aisle who have nonetheless sought to make the Senate a forum for debate and careful consideration of our nation's foreign policy. The decision by the Republican Senate majority to focus on controversial nominations rather than the international situation or the economy says much about their mistaken priorities. The Republican majority sets the agenda and they schedule the debate, just as they have again here today. One of the most disconcerting aspects of the manner in which the Senate is approaching these divisive judicial nominations is what appears to be the Republican majority's willingness to sacrifice the constitutional authority of the Senate as a check on the power of the President in the area of lifetime appointments to our Federal courts. It should concern all of us and the American people that the Republican majority's efforts to re-write Senate history in order to rubber-stamp this White House's Federal judicial nominees will cause long-term damage to this institution, to our courts, to our constitutional form of government, to the rights and protections of the American people and to generations to come. I have served in the Senate for 29 years, and until recently I have never seen such stridency on the part of an administration or such willingness on the part of a Senate majority to cast aside tradition and upset the balances embedded in our Constitution so as to expand Presidential power. What I find unprecedented are the excesses that the Republican majority and this White House are willing to indulge to override the constitutional division of power over appointments and longstanding Senate practices and history. It strikes me that some Republicans seem to think that they are writing on blank slate and that they have been given a blank check to pack the courts. They show a disturbing penchant for reading the Constitution to suit their purposes of the moment rather than as it has functioned for over 200 years to protect all American through checks and balances. The Democratic Leader pointed the way out of this impasse again in his letter to the President on February 11. It is regrettable that the President did not respond to that reasonable effort to resolve this matter. Indeed, the letter he sent this week to Senator Frist was not a response to Senator Daschle's reasonable and realistic approach, but a further effort to minimize the Senate's role in this process by proposing radical changes in Senate rules and practices to the great benefit of this administration. A distinguished senior Republican Senator saw the reasonableness of the suggestions that the Democratic leader and assistant leader have consistently made during this debate when he agreed on February 14 that they pointed the way out of the impasse. Sadly, his efforts and judgment were also rejected by the administration. More recently, in its edition for next Monday, March 17, a writer in The Weekly Standard suggests that other Senate Republicans, ``several veteran GOP Senate staffers'' and ``a top GOP leadership aide'' asked the White House to shown some flexibility and to share the legal memoranda with the Senate to resolve this matter, but were rebuffed. I ask unanimous consent that a copy of the article from The Weekly Standard be printed in the Record.

Mr. LEAHY. It is too bad that the White House will not listen to reason from Senate Democrats or Senate Republicans. If they had, there would be no need for this cloture vote. The White House is less interested in making progress on the Estrada nomination than in trying to make political points and to divide the Hispanic community. The Supreme Court, in an opinion authored by none other than Justice Scalia, one of this President's judicial role models, instructs that judicial ethics do not prevent candidates for judicial office or judicial nominees from sharing their judicial philosophy and views. With respect to ``precedent,'' Republicans not only joined in the filibuster of the of Abe Fortas to be Chief Justice of the United States Supreme Court, they joined in the filibuster Stephen Breyer to the 1st Circuit, Judge Rosemary Barkett to the 11th Circuit, Judge H. Lee Sarokin to the 3rd Circuit, and Judge Richard Paez and Judge Marsha Berzon to the 9th Circuit. The truth is that filibusters on nominations and legislative matters and extended debate on judicial nominations, including circuit court nominations, have become more and more common through Republicans' actions. Of course, when they are in the majority Republicans have more successfully defeated nominees by refusing to proceed on them and have not publicly explained their actions, preferring to act in secret under the cloak of anonymity. From 1995 through 2001, when Republicans previously controlled the Senate majority, Republican efforts to defeat President Clinton's judicial nominees most often took place through inaction and anonymous holds for which no Republican Senator could be held accountable. Republicans held up almost 80 judicial nominees who were not acted upon during the Congress in which President Clinton first nominated them and eventually defeated more than 50 judicial nominees without a recorded Senate vote of any kind, just by refusing to proceed with hearings and Committee votes. Beyond judicial nominees, Republicans also filibustered the nomination of Executive Branch nominees. They successfully filibustered the nomination of Dr. Henry Foster to become Surgeon General of the United States in spite of two cloture votes in 1995. Dr. David Satcher's subsequent nomination to be Surgeon General also required cloture but he was successfully confirmed. Other Executive Branch nominees who were filibustered by Republicans included Walter Dellinger's nomination to be Assistant Attorney General and two cloture petitions were required to be filed and both were rejected by Republicans. In this case we were able finally to obtain a confirmation vote after significant efforts and Mr. Dellinger was confirmed to that position with 34 votes against him. He was never confirmed to his position as Solicitor General because Republicans had made clear their opposition to him. In addition, in 1993, Republicans objected to a number of State Department nominations and even the nomination of Janet Napolitano to serve as the U.S. Attorney for Arizona, resulting in cloture petitions. In 1994, Republicans successfully filibustered the nomination of Sam Brown to be an Ambassador. After three cloture petitions were filed, his nomination was returned to President Clinton without Senate action. Also in 1994, two cloture petitions were required to get a vote on the nomination of Derek Shearer to be an Ambassador. And it likewise took two cloture petitions to get a vote on the nomination of Ricki Tigert to chair the FDIC. So when Republican Senators now talk about the Senate Executive Calendar and presidential nominees, they must be reminded that they recently filibustered many, many qualified nominees. Nonetheless, in spite of all the intransigence of the White House and all of the doublespeak by some of our colleagues on the other side of the aisle, I can report that I believe the Senate will by the end of this week have moved forward to confirm 111 of President Bush's judicial nominations since July 2001. That total would include 11 judges confirmed so far this year and of those, seven would be confirmed this week. With the time agreement on the controversial nomination of Jay S. Bybee to the United States Court of Appeals for the Ninth Circuit in place for later today, it also includes a circuit judge. Those observing these matters might contrast this progress with the start of the last Congress in which the Republican majority in the Senate was delaying consideration of President Clinton's judicial nominees. In 1999, the first hearing on a judicial nominee was not until mid-June. The Senate did not reach 11 confirmations until the end of July of that year. Accordingly, the facts show that Democratic Senators are being extraordinarily cooperative with a Senate majority and a White House that refuses to cooperate with us. We have made progress in spite of that lack of comity and cooperation. Indeed, by close of business today, we will have reduced vacancies on the federal courts to under 55, which includes the 20 judgeships the Democratic-led Senate authorized in the 21st Century Department of Justice Appropriations Authorization Act last year. That is an extremely low vacancy number based on recent history and well below the 67 vacancies that Senator Hatch termed ``full employment'' on the federal bench during the Clinton Administration. Our D.C. Circuit has special jurisdiction over cases involving the rights of working Americans as well as the laws and regulations intended to protect our environment, safe work places and other important federal regulatory responsibilities. This is a court where privacy rights will either be retained or lost, and where thousands of individuals will have their final appeal in matters that affect their financial future, their health, their lives and their liberty, as well as the lives of their children and generations to come. If a nominee's record or responses raise doubts or concerns, these are matters for thorough scrutiny by the Senate, which is entrusted to review all of the information and materials relevant to a nominee's fairness and experience. No one should be rewarded for stonewalling the Senate and the American people. Our freedoms are the fruit of too much sacrifice to fail to assure ourselves that the judges we confirm will be fair judges to all people and in all matters. It is unfortunate that the White House and some Republicans have insisted on this confrontation rather than working with us to provide the needed information so that we could proceed to an up-or-down vote. Some on the Republican side seem to prefer political game playing, seeking to pack our courts with ideologues and leveling baseless charges of bigotry, rather than to work with us to resolve the impasse over this nomination by providing information and proceeding to a fair vote. I was disappointed that Senator Bennett's straightforward colloquy with Senator Reid and me on February 14, which pointed to a solution, was never allowed by hard-liners on the other side to yield results. I am disappointed that all my efforts and those of Senator Daschle and Senator Reid have been rejected by the White House. The letter that Senator Daschle sent to the President on February 11 pointed the way to resolving this matter reasonably and fairly. Republicans would apparently rather engage in politics. The Republican majority is wedded to partisan talking points that are light on facts but heavy on rhetoric. There has often been an absence of fair and substantive debate and a prevalence of name calling by the other side. I urge the White House and Senate Republicans to end the political warfare and join with us in good faith to make sure the information that is needed to review this nomination is provided so that the Senate may conclude its consideration of this nomination. I urge the White House, as I have for more than two years, to work with us and, quoting from a recent column by Thomas Mann of The Brookings Institute, to submit ``a more balanced ticket of judicial nominees and engag[e] in genuine negotiations and compromise with both parties in Congress.'' The President promised to be a uniter not a divider, but he has continued to send us judicial nominees that divide our nation and, in this case, he has even managed to divide Hispanics across the country, unlike any of the prior nominees of both Democratic and Republican presidents. The nomination and confirmation process begins with the President, and I urge him to work with us to find a way forward to unite the nation on these issues, instead of to divide the Nation. The presiding officer. The Senator from Utah.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I want to bring to the Senate's attention a group of student athletes in Vermont who have an unusual and admirable tradition. For the past 42 years, Middlebury College freshman have helped a Middlebury man with a disability make it to football and basketball games like clockwork. It is another example where students' education extends far beyond the walls of a college classroom. In the March 10, 2003, issue of Sports Illustrated, well-known sports columnist Rick Reilly took a moment to explain the tradition to his readers. Middlebury College has long been recognized as one of the Nation's finest institutions of higher education. The quality of its faculty, the rigors of coursework, stunning facilities, and the success of its athletic programs are the foundation for Middlebury's storied history and academic reputation. Yet it also is what goes unnoticed that makes this truly a special place--like a tradition that takes place right before the start of every football and basketball game. It is a tradition that has come to exemplify what it means to be a Middlebury College Panther, a Vermonter, and a person in full. For the past 42 years, the freshman members of the Middlebury College football and basketball teams have been going to Butch Varno's house before the start of the game and literally giving him a lift. Mr. Varno, who from infancy has contended with cerebral palsy, is confined to a wheelchair and does not drive. On game day, he anticipates the arrival of a small band of Panthers for a ride to the game, which includes lifting Mr. Varno out of bed and getting him to the bleachers. We in Vermont are proud of the student athletes who make this happen before each game. Whether they know it or not, they represent the very best of our Nation's college students. They are learning, playing hard and, most importantly, caring for others in their community. I ask unanimous consent that the text of Rick Reilly's column be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I thank the distinguished Presiding Officer. Does the distinguished majority leader have other matters?

Mr. LEAHY. Mr. President, what was the previous unanimous consent agreement of the time for the Senator from Vermont?

Mr. LEAHY. But prior to the votes, wasn't there--

Mr. LEAHY

Mr. LEAHY. I thank the Chair.

Mr. LEAHY. I tell my friend from New York, I have allowed others to go, but one more doesn't bother me, especially someone as good as the Senator from New York. I certainly have no objection.

Mr. LEAHY. Mr. President, we have moved the time up, I realize, in the next 6 minutes for the first vote. That is something I have agreed to accommodate a number of Senators on both sides of the aisle who have commitments. As a result, also as a result of yielding time to the distinguished Senator from Alabama, who had one of the nominees and, of course, appropriately should be speaking, and others, I will not be able to say all the things I wanted to. I ask unanimous consent that I be recognized for 20 minutes after the conclusion of the final rollcall vote today.

Mr. LEAHY. Obviously, as usual, should the leaders have other plans for that, I will do my usual courtesy of yielding to them. (The remarks of Mr. Leahy are printed in today's Record under ``Morning Business.'')

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

Mr. LEAHY. Mr. President, parliamentary inquiry: Who is the next judge after this?

Mr. LEAHY. Mr. President, I understand we also have J. Daniel Breen, of Tennessee, on the list. I ask unanimous consent that it be in order to ask for the yeas and nays on his nomination.

Mr. LEAHY. I ask for the yeas and nays.

Mr. LEAHY

Mr. LEAHY. Mr. President, after years of shortchanging our nation's crime labs, the Administration has unveiled a proposal to spend more than $1 billion over five years on forensic DNA programs. This proposal is overdue, but it is welcome, and it will make a difference. For two years I have repeatedly urged the Administration and House Republicans to fully fund existing programs aimed at eliminating the DNA backlog crisis and, in particular, the inexcusable backlog of untested rape kits. Until now, the Justice Department has simply refused to make this a high priority. In the meantime, untested critical evidence has been piling up while rapists and killers remain at large, while victims continue to anguish, and while statutes of limitation expire. I am pleased that the Administration's new commitment to funding DNA programs includes $5 million a year for post-conviction DNA tests that can be used by inmates to prove their innocence. Post-conviction DNA testing has already been used to exonerate more than 120 prisoners nationwide, including 12 awaiting execution. Last year the Justice Department cancelled plans to spend $750,000 on a post-conviction DNA testing initiative, and diverted the money to another program. It is heartening that the Department at last has recognized the importance of ensuring that the power of modern science, in the form of DNA testing, is available to help prosecutors and defendants alike establish the truth about guilt and innocence. Clearly, DNA testing is critical to the effective administration of justice in 21st Century America. But like every forensic tool, DNA testing is only as accurate as the labs and technicians that process the evidence. When we shortchange our labs, we shortchange the whole criminal justice system. The appalling situation in Houston, Texas, is only the most recent example. Last December, a state audit conducted by a team of forensic scientists uncovered widespread problems at the Houston Police Department's crime laboratory. These problems included poorly trained technicians, shoddy recordkeeping, and holes in the roof that allowed rain to possibly contaminate samples. A Houston councilwoman who toured the lab last June described trash buckets and water buckets throughout the facility: ``They were having to move tables around, because some of the leaks were near and sometimes above where the analysis was occurring.'' Elizabeth Johnson, a DNA expert familiar with the Houston police lab, has pointed to serious problems beyond holes in the ceiling problems that suggest widespread incompetence or even corruption. Dr. Johnson has testified that lab technicians often vastly exaggerated the probability of a defendant's guilt, while mischaracterizing evidence that exonerated a defendant as ``inconclusive.'' In many cases, she found, lab technicians' reports, which were used to make critical decisions throughout the criminal justice system, asserted conclusions that were entirely unsupported by their data: not technical errors; not misjudgments; but flat-out fabrications. I have spoken before about the disastrous consequences of sloppy lab work. Two years ago, an FBI investigation found that a police chemist in Oklahoma City was routinely exaggerating her results. At least one man who was convicted on the basis of the chemist's so-called ``expert'' testimony was later exonerated and released from prison. He had already served 15 years of a 65-year sentence. There are many other cases in which people have been wrongly convicted because forensic specialists were incompetent, or because they fabricated or overstated test results to support the prosecution's theory of the case. In 1997, we learned about major problems at the FBI's crime labs, ranging from unqualified forensic scientists to contamination of evidence and the doctoring of laboratory reports. Before that, there were similar problems in various state crime labs. Police in Baltimore are currently reviewing 480 cases worked on by a former police chemist who testified at a 1983 rape trial against a defendant who was later exonerated. While the situation in Houston is not unprecedented, it is particularly alarming. That is because Houston is in Harris County, the execution capital of the United States. Harris County sends more people to death row in a year than many states do in a decade. More defendants from Harris County have been executed than from any other county in the country. Harris County prosecutors are now busily reviewing their closed cases to determine whether they involved evidence processed by the Houston police lab. They have already ordered new DNA testing in more than 20 cases, including 7 cases in which the defendant was sentenced to death. Ultimately, several hundred cases will need to be retested. Retesting has already cleared one man, Josiah Sutton. Sutton was only a teenager when he was convicted and sentenced to 25 years for rape, based largely on a bogus DNA match by the Houston police lab. It now appears that he spent the last 4\1/2\ years in prison for nothing. How many Josiah Sutton's has Harris County wrongfully convicted? Probably quite a few. Hundreds of people have been convicted using DNA evidence processed by the Houston police lab. The fact that the very first batch of cases to be retested has exposed a wrongful conviction suggests that Sutton may be just the tip of the iceberg. How many more people will be cleared through retesting? That is a trickier question. According to the state audit, the Houston police lab routinely consumed most if not all of the evidence available for testing, with little or no regard for the importance of conserving samples. This practice will greatly limit the possibility for retesting in the hundreds of cases now under review. DNA testing is an extraordinary tool for uncovering the truth, whatever the truth may be. It can show us conclusively, even years after a conviction, where mistakes have been made. But it cannot show us anything if there is no evidence to test. By needlessly consuming entire DNA samples, the Houston police lab may have destroyed the only key to freedom for more than one wrongly convicted person. The failure to preserve DNA evidence is a problem in many parts of the country, but it seems to be an official policy in Harris County. In 1997, DNA testing exonerated Harris County defendant Kevin Byrd only because, by pure luck, the 12-year rape kit had not been destroyed pursuant to bureaucratic routine. The very week that Byrd was freed, however, Harris County officials systematically destroyed the rape kits from 50 other old cases, citing a lack of storage space. No doubt many of the rape kits that Harris County destroyed that week and over the years were analyzed under the leaky ceilings of the Houston police lab. But even with the best of intentions, Harris County prosecutors will not be able to resurrect that evidence for retesting. There may well have been another Josiah Sutton or two among those cases--defendants who were wrongfully convicted based on bad lab work-- but without the evidence to prove it, we will probably never know. The essence of law enforcement is seeking the truth, not hiding from it or destroying evidence in a fit of pique or to save face. The disdain for science, truth, and justice we have seen in Houston, at the heart of the nation's capital punishment system, is an utter disgrace. All of which is to say that I hope my colleagues will join me in supporting the Administration's new DNA initiative. One billion dollars will give States the help they desperately need to improve the quality and credibility of their crime labs, and to eliminate the backlog of untested DNA evidence. Five million dollars a year will go a long way toward ensuring that no deserving inmate is denied post-conviction DNA testing because he or she cannot afford to pay for it. In his remarks announcing the DNA Initiative, Attorney General Ashcroft said he ``looked forward to working with the Chairmen of the House and Senate Judiciary Committees to develop legislation that provides appropriate post-conviction DNA testing to federal inmates.'' I welcome that, but I have a better idea. With Chairman Hatch's agreement, I would like to issue a bipartisan invitation to Attorney General Ashcroft to come to talk to us in open committee about a legislative proposal that is already written, has already been refined and debated, and has already received overwhelming bipartisan support. I refer to the Innocence Protection Act, a modest and practical package of reforms that aims at reducing the risk of error in capital cases. The reforms proposed by the IPA are designed to create a fairer system of justice, where the problems that have sent innocent people to death row would not occur, and where victims and their families could be more certain of the accuracy, and finality, of the results. More specifically, the Innocence Protection Act would ensure that post-conviction DNA testing is available in appropriate cases, where it can help expose wrongful convictions, and that DNA evidence is adequately preserved throughout the country. The bill also addresses one of the root causes of wrongful convictions--inadequate defense representation at trial. Last year, the IPA won the support of a bipartisan majority of the Senate Judiciary Committee, and more than half the entire House of Representatives. Together with other lead sponsors--Senator Gordon Smith, Senator Susan Collins, Representative Bill Delahunt, and Representative Ray LaHood--I am committed to reintroducing the IPA this year and getting it signed into law. The path to prompt reform is through legislation that is already written and fine-tuned. The path to consensus is through legislation that has already received broad bipartisan support. And the path to addressing the fundamental problems in our criminal justice system is through legislation that addresses the most common cause of wrongful convictions--inadequate defense counsel--as well as their most conspicuous solution--DNA testing. The path, in each case, is the Innocence Protection Act. I look forward to continuing to work with my colleagues on both sides of the aisle to pass the Innocence Protection Act this year. I ask unanimous consent to have printed in the Record 2 articles, one from the Washington Post, the other from the New York Times, which describe the ongoing investigation into the Houston police lab.

Mr. LEAHY

Mr. LEAHY. Mr. President, in spite of the intransigence of the White House and the overreaching of the Republican majority here in the Senate, I believe the Senate will, by the end of this week, have moved forward to confirm 111 of President Bush's judicial nominations since July 2001. That total would include 11 judges confirmed so far this year and of those 7 would be confirmed this week. Consideration of this controversial nomination of Jay S. Bybee to the United States Court of Appeals for the Ninth Circuit is the 18th circuit nomination considered for this President since July 2001. The 17 others were each confirmed, some like Judge Shedd and Judge D. Brooks Smith with significant opposition. Nonetheless, Democrats have moved forward almost twice as promptly on this President's circuit nominees as the Republican majority did on President Clinton's circuit nominees. The Republican majority averaged 7 circuit judge confirmations a year over the 6\1/2\ years it previously controlled this process. By contrast, the Democratic majority confirmed 17 circuit judges in 17 months for President Bush, in addition to 83 district court judges. In terms of percentages, which is what Republicans love to cite, the percentage of circuit nominees of President Clinton confirmed under the Republican majority in the 107th Congress was 0; the percentage confirmed in the 106th Congress was 44 percent; the percentage confirmed in the 105th Congress was 66 percent; and the percentage confirmed in the 104th Congress was 55 percent. In fact, despite the percentage for a full Congress, in four of their six full years, they confirmed 33 percent or less of President Clinton's circuit court nominees. In less than a full Congress, after assuming the majority in the summer of 2001 and in spite of the 9/11 attacks and the anthrax attacks and all the disruptions and priorities in those 17 months, the Democratically-led Senate not only held hearings on 20 circuit nominees, the Judiciary Committee voted on 19 and the Senate confirmed 17 for a 53 percent confirmation rate of the President's controversial slate of circuit nominees. Those considering these matters might contrast the progress in which Democrats are assisting with the start of the last Congress in which the Republican majority in the Senate was delaying consideration of President Clinton's judicial nominees. In 1999, the first hearing on a judicial nominee was not until mid-June. The Senate did not reach 11 confirmations until the end of July of that year whereas we will reach that benchmark this year before St. Patrick's Day. Accordingly, the facts show that Democratic Senators are being extraordinarily cooperative with a Senate majority and a White House that refuses to cooperate with us. We have made progress in spite of them. Indeed, by close of business today, we will have reduced vacancies on the Federal courts to under 55, which includes the 20 judgeships Democrats newly authorized in the 21st Century Department of Justice Appropriations Authorization Act last year. That is an extremely low vacancy number based on recent history and well below the 67 vacancies that Senator Hatch termed ``full employment'' on the federal bench during the Clinton Administration. Turning to the nomination now before the Senate, the nomination of Jay S. Bybee for a lifetime appointment to the Ninth Circuit Court of Appeals is a difficult one for me. It is made all the more difficult by the respect I have for the senior Senator from Nevada, who has supported this nomination. I think that Senator Biden made a compelling case against this nomination in his statement to the Judiciary Committee. I know that we intended to and did establish a separate Violence Against Women Office at the Department of Justice and a Director subject to Senate confirmation when we wrote the Department of Justice authorization legislation and enacted it last year. How Mr. Bybee could misinterpret that measure is beyond me. Mr. Bybee appeared before the Judiciary Committee in 2001 when he was nominated to serve at the Department of Justice. During that confirmation hearing, Mr. Bybee promised the Judiciary Committee that as Assistant Attorney General, he would ``not trample civil rights in the pursuit of terrorism'' and that he would ``bring additional sensitivity to the rights of all Americans'' to his work at the Justice Department. Given the veil of secrecy imposed by the Administration, I have serious concerns about how the Department of Justice has been operating. Unfortunately, Mr. Bybee's hearing for judicial office took place on a particularly busy morning when many Senators had other committee obligations and during the Secretary of State's address to the United Nations regarding Iraq. Many of us were unable to attend Mr. Bybee's hearing in person that day. At least five of us submitted detailed sets of written questions to ask about the Justice Department and some controversial views he has taken in his academic writings and speeches before the Federalist Society. I have given a lot of thought to this nomination. I have concerns that Mr. Bybee was chosen to be another in a long line of circuit court nominees from this President who will prove to be an ideologically driven conservative activist if accorded lifetime tenure on the Court of Appeals. However, Senator Reid knows Mr. Bybee and supports his confirmation. Mr. Bybee is obviously conservative, but we've had a chance to review his articles and speeches and no one has called into question his ability and commitment to setting aside his views as a judge. On the very day that Democrats cooperated in debating and voting on the Bybee nomination in Committee, our cooperation was rewarded by the Republican majority violating our rights. Republicans violated our longstanding Judiciary Committee rules and unilaterally declared the termination of debate on two other controversial circuit court nominations, John Roberts and Justice Deborah Cook that very morning. Senator Daschle termed this unilateral action deeply troubling and a ``reckless exercise of raw power by a Chairman,'' and he is right. He observed that the work of this Senate has for over 200 years operated on the principle of civil debate, which includes protection of the minority. When a chairman can on his own whim choose to ignore our rules that protect the minority, not only is that protection lost, but so is an irreplaceable piece of our integrity and credibility. The Democratic leader noted that faithful adherence to longstanding rules is especially important for the Senate and for its Judiciary Committee. He noted ``how ironic that in the Judiciary Committee, a Committee which passes judgment on those who will interpret the rule of law,'' that it acted in conscious disregard of the rules that were established to govern its proceedings. If this is what those who pontificate about ``strict construction'' mean by that term, it translates to winning by any means necessary. If this is how the judges of the judicial nominees act, how can we expect the nominees they support as ``strict constructionists'' to behave any better? Given this action in disrespect of the rights of the minority, how can we expect the Judiciary Committee to place individuals on the bench that respect the rule of law? In my 29 years in the Senate and in my reading of Senate history, I cannot think of so clear a violation of Senators' rights. As Chairman of the Agriculture Committee, as Chairman of the Subcommittee on Foreign Operations of the Appropriations Committee and as Chairman of the Judiciary Committee, I strove always to protect the rights of the minority. I did not always agree with what they were saying or doing, I did not always find it convenient, but I protected their rights. It was not always as efficient as I might have liked, but I protected their rights. That is basic to this democracy and fundamental to the Senate of the United States. Senators respect other Senators' rights and hear them out. There is no question that the Senate majority is in charge and responsible for how we proceed. I understand that and always have--I wish Republicans had shared that view when I chaired the Judiciary Committee last year. But in the Senate, the majority's power is circumscribed by our rules and traditional practices. We protect and respect the rights of the minority in this democratic institution for the same reason we steadfastly adhere to the Bill of Rights. I, too, am gravely concerned about this abuse of power and breach of our committee rules. When the Judiciary Committee cannot be counted upon to follow its own rules for handling important lifetime appointments to the Federal judiciary, everyone should be concerned. In violation of the rules that have governed that committee's proceedings since 1979, the chairman chose to ignore our longstanding committee rules and short-circuit committee consideration of the nominations of John Roberts and Justice Deborah Cook. Senator Daschle spoke to that matter that day. Judiciary Committee members, Senator Feinstein, Senator Schumer, Senator Durbin and Senator Feingold have also spoken to the Senate about this breach of our rules, as well as a number of other liberties that Republicans have been taking with the rules. Since 1979, the Judiciary Committee has had this particular committee rule to bring debate on a matter to a close while protecting the rights of the minority. It may have been my first meeting as a Senator on the Judiciary Committee in 1979 that Chairman Kennedy, Senator Thurmond, Senator Dole, Senator Cochran and others discussed adding this rule to those of the Judiciary Committee. Senator Thurmond, Senator Hatch and the Republican minority at that time took a position against adding the rule and argued in favor of any individual Senator having a right to unlimited debate--so that even one Senator could filibuster a matter. Senator Hatch said that he would be ``personally upset'' if unlimited debate were not allowed. Senator Hatch explained: There are not a lot of rights that each individual Senator has, but at least two of them are that he can present any amendments which he wants and receive a vote on it and number two, he can talk as long as he wants to as long as he can stand, as long as he feels strongly about an issue. I think those rights are far superior to the right of this Committee to rubber stamp legislation out on the floor. It was Senator Dole who drew upon his Finance Committee experience to suggest in 1979 that the Committee rule be that ``at least you could require the vote of one minority member to terminate debate.'' Senator Cochran likewise supported having a ``requirement that there be an extraordinary majority to shut off debate in our Committee.'' The Judiciary Committee proceeded to refine its consideration of what became Rule IV, which was adopted in 1979 and has been maintained ever since. It struck the balance that Republicans had suggested of at least having the agreement of one member of the minority before allowing the Chairman to cut off debate. That protection for the minority has been maintained by the Judiciary Committee for the last 24 years under five different chairmen--Chairman Kennedy, Chairman Thurmond, Chairman Biden, under Chairman Hatch previously and during my tenure as chairman. Rule IV of the Judiciary Committee provides the minority with a right not to have debate terminated and not to be forced to a vote without at least one member of the minority agreeing. That rule and practice had until last month always been observed by the committee, even as we have dealt with the most contentious social issues and nominations that come before the Senate. Until last month, Democratic and Republican chairmen had always acted to protect the rights of the Senate minority. The rule has been the committee's equivalent to the Senate's cloture rule in Rule 22. It had been honored by all five Democratic and Republican chairman, including Senator Hatch--until last month. It was rarely utilized but Rule IV set the ground rules and the backdrop against which rank partisanship was required to give way, in the best tradition of the Senate, to a measure of bipartisanship in order to make progress. That is the other important function of the rule. Besides protecting minority rights, it enforced a certain level of cooperation between the majority and minority in order to get anything accomplished. That, too, has been lost as the level of partisanship on the Judiciary Committee and within the Senate reached a new level when Republicans chose to override our governing rules of conduct and proceed as if the Senate Judiciary Committee were a minor committee of the House of Representatives. The premature and unilateral termination of debate in committee last month was apparently a premeditated act. Senator Hatch indicated that he had checked with the parliamentarians in advance, and he apparently concluded that he had the raw power to ignore our committee rule and so long as all Republicans on the committee stuck with him, he would do so. I understand that the parliamentarians advised Senator Hatch that there is no enforcement mechanism for a violation of committee rules and that the parliamentarians view Senate Committees as ``autonomous''. I do not believe that they advised Senator Hatch that he should violate our Committee rules or that they interpreted our Committee rules. I cannot remember a time when then-Chairman Kennedy or Chairman Thurmond or Chairman Biden would have even considered violating their responsibility to the Senate and to the committee and to our rules. Accordingly, we have never been faced with a need for an ``enforcement mechanism'' or penalty for violation of a fundamental committee rule. In fact, on the only occasion I can recall when Senator Hatch was faced with implementing Committee Rule IV, he did so. In 1997, Democrats on the committee were seeking a Senate floor vote on President Clinton's nomination of Bill Lann Lee to be the Assistant Attorney General for Civil Rights at the Department of Justice. Republicans were intent on killing the nomination in committee. The committee rule came into play when in response to an alternative proposal by Chairman Hatch, I outlined the tradition of our Committee. I said: This committee has rules, which we have followed assiduously in the past and I do not think we should change them now. The rules also say that 10 Senators, provided one of those 10 is from the minority, can vote to cut off debate. We are also required to have a quorum for a vote. I intend to insist that the rules be followed. A vote that is done contrary to the rules is not a valid one. Immediately after my comment, Chairman Hatch abandoned his earlier plan and said: I think that is a fair statement. Rule IV of the Judiciary Committee rules effectively establishes a committee filibuster right, as the distinguished Senator said. With respect to the nomination in 1997, Chairman Hatch acknowledged: Absent the consent of a minority member of the Committee, a matter may not be brought to a vote. However, Rule IV also permits the chairman of the Committee to entertain a non- debatable motion to bring any matter to a vote. The rule also provides as follows: ``The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a rollcall vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the Minority.'' Thereafter, given the objection, the committee proceeded to a roll call vote whether to end the debate. That was consistent with our longstanding rule. In that case, Chairman Hatch followed the rules of the committee. At the beginning of our executive business meeting on February 27, I referenced the Committee's rules and during the course of the debate on nominations both Senator Kennedy and I sought to have the committee follow them. We were overridden. Last month, the bipartisan tradition and respect for the rights of the minority ended when Chairman Hatch decided to override Rule IV rather than follow it. He did so expressly and intentionally, declaring: ``[Y]ou have no right to continue a filibuster in this committee.'' Chairman Hatch decided, unilaterally, to declare the debate over even though all members of the minority were prepared to continue the debate and it was, in fact, terminated prematurely. I had yet to speak to any of the circuit nominees on the agenda and other Democratic Senators had more to say. Senator Hatch completely reversed his own position from the Bill Lann Lee nomination and took a step unprecedented in the history of the committee. Contrast the statements of Senator Hatch in 1979 when he supported unlimited debate for a single Senator--with Republicans in the minority--with his action overriding the rights of the Democratic minority and his recent letter to Senator Daschle in which, now that Republicans hold the Senate majority, he says that he ``does not believe the Committee filibuster should be allowed and [he] thinks it is a good and healthy thing for the Committee to have a rule that forces a vote.'' But our committee rule, while providing a mechanism for terminating debate and reaching a vote on a matter, does so while providing a minimum of protection for the minority. Even this minimum protection will no longer be respected by Chairman Hatch. Contrast Senator Hatch's recognition in 1997 that Rule IV establishes a Judiciary Committee ``filibuster right'' and that a ``[a]bsent the consent of a minority member of the Committee, a matter may not be brought to a vote,'' with his declaration last month that there is no right to filibuster in committee. In his recent letter to Senator Daschle, Senator Hatch declares that he ``does not believe that Committee filibusters should be allowed.'' It is Senator Hatch who has ``turned Rule 4 on its head'' last month, after 24 years of consistent interpretation and implementation by five chairmen. Never before his letter to Senator Daschle has anyone since the adoption of the rule in 1979 ever suggested that its purpose was to be narrowed and redirected to thwart ``an obstreperous Chairman who refuses to allow a vote on an item on the Agenda.'' After all, as Senator Hatch recognizes in his letter, it is the chairman's prerogative to set the agenda for the mark-up. This revisionist reading of the rule is not justified by its adoption or its prior use and appears to be nothing other than an after-the-fact attempt to justify the obvious breaches of the longstanding Committee rule and practice that occurred last month. It was not even articulated contemporaneously at the business meeting. I appreciate the frustrations that accompany chairing the Judiciary Committee. I know the record we achieved during my 17 months of chairing that committee, when we proceeded with hearings on more than 100 of President Bush's judicial nominees and scores of his executive nominees, including extremely controversial nominations, when we proceeded fairly and in accordance with our rules and committee traditions and practices to achieve almost twice as many confirmation for President Bush as the Republicans had allowed for President Clinton, and know how that record was mischaracterized by partisans. Those 100 favorably reported nominations included Michael McConnell, Dennis Shedd, D. Brooks Smith, John Rogers, Michael Melloy and many others. I know that sometimes a chairman must make difficult decisions about what to include on an agenda and what not to include, what hearings to hold and when. In my time as chairman I tried to maintain the integrity of the committee process and to be bipartisan. I noticed hearings at the request of Republican Senators and allowed Republican Senators to chair hearings. I made sure the committee moved forward fairly on the President's nominees in spite of the Administration's unwillingness to work with us to fill judicial vacancies with consensus nominees and thereby fill those vacancies more quickly. But I cannot remember a time when Chairman Kennedy, Chairman Thurmond, Chairman Biden, Chairman Hatch previously, or I, ever overrode by fiat the right of the minority to debate a matter in accordance with our longstanding committee rules and practices. The committee and the Senate have crossed a threshold of partisan overreaching that should never have been crossed. I urge the Republican leadership to recommit the nominations of Justice Deborah Cook and John Roberts to the Judiciary Committee so that they can be considered in accordance with the committee's rules. The action taken last month should be vitiated and order restored to the Senate and to the Judiciary Committee. I urge the Republican leadership to rethink its missteps and urge the chairman and the committee to disavow the misinterpretation and violations of Rule IV that occurred last month. We have also worked hard to report a number of important executive and judicial nominees in spite of the continued partisanship by the White House and Senate Republicans. As Senator Feinstein recently noted, we have cooperated by not insisting on our rights to seven days notice or seven days holdover on various matters and we have not insisted on three days' notice of items on the agenda. We have proceeded to debate with less than a quorum present and Democrats have been responsible for making quorum after quorum so that this committee could conduct business. Ironically, we did so even last month while our rights were being violated. Order and comity need to be restored to the Judiciary Committee and to the Senate. An essential step in that process is the restoration of our rights under Rule IV and recognition of our rights thereunder. There are continuing problems caused by the administration's refusal to work with Democratic Senators to select consensus judicial nominees who could be confirmed relatively quickly by the Senate. Despite the President's lack of cooperation, the Senate in the 17 months I chaired the Judiciary Committee was able to confirm 100 judges and vastly reduce the judicial vacancies that had built up and were prevented by the Republican Senate majority from being filled by President Clinton. Last year alone the Democratic-led Senate confirmed 72 judicial nominees, more than in any of the prior six years of Republican control. Not once did the Republican-controlled committee consider that many of President Clinton's district and circuit court nominees, even though there were often more judicial nominees than that waiting for a hearing. In our efforts to turn the other cheek and treat this President's nominees better than his predecessor's had fared, we confirmed 100 judges in 17 months. Yet, not a single elected Republican has acknowledged this tremendous bipartisanship and fairness. When Chief Justice Rehnquist thanked the committee for confirming 100 judicial nominees, this was the first time our remarkable record had been acknowledged by anyone from a Republican background. Almost all of the 100 judges we confirmed last Congress are conservative, quite conservative. And with some, the Senate has taken a significant risk that they will be activist judges with lifetime tenure. We nonetheless moved fairly and expeditiously on as many as we could. We cut the number of vacancies on the courts from 110 to 59, despite an additional 50 new vacancies that arose during my tenure. I recall that Senator Hatch took the position in September of 1997 that 103 vacancies, during the Clinton Administration, did not constitute a ``vacancy crisis.'' He also stated repeatedly that 67 vacancies meant ``full employment'' on the federal courts. Even with the vacancies that have arisen since we adjourned last year, we remain below the ``full employment'' level that Senator Hatch used to draw for the federal courts with only 60 current vacancies on the District Courts and Courts of Appeals. Unfortunately, the President has not made nominations to almost two dozen of those seats, and on more than one-half of the current vacancies he has missed his self- imposed deadline of a nomination within 180 days. Of course, several of the nominations he has made are controversial. Last Congress, we worked hard to keep a steady pace of hearings, even though so many of this President's judicial picks proved to be quite divisive and raised serious questions about their willingness to be fair to all parties. We held hearings for 90 percent of his nominees eligible for hearings, a total of 103 nominees, including 20 circuit court nominees. We voted on 102 of them, two of whom were defeated after fair hearings and lengthy debate. The President has taken this unprecedented action of re-nominating candidates voted down in committee in spite of the serious concerns expressed by fair-minded members of this committee. This year the committee has had a rocky beginning with a hearing that has caused a great many problems that could have been avoided. The committee proceeded to a vote on the Estrada nomination and to a vote on the Sutton nomination and to votes on the Bybee and Tymkovich nominations--all controversial nominations to circuit courts. The rushed processing of nominees in these past few weeks has led to editorial cartoons showing conveyor belts and assembly lines with Senators just rubber-stamping these important, lifetime appointments without sufficient inquiry or understanding. What we are ending up with is a pile-up of nominees at the end of this rapidly-moving conveyer belt. There is no way that we can meaningfully keep up with our constitutional duty to determine the fitness of these nominees at this pace. The quality of our work must suffer, and slippage in the quality of justice will necessarily follow. I hope we will do all we can to prevent more of these ``I Love Lucy'' moments. All of the Democratic Senators who serve on the Judiciary Committee have asked the Chairman to reconvene the hearing with Justice Cook and Mr. Roberts because of the circumstances under which it was held and not satisfactorily completed. We have also taken the White House up on its offer to make the nominees available with a joint letter seeking an opportunity to make further inquiries of them. Regrettably, last Wednesday the White House withdrew its offer and now refuses to proceed. That change of position by the White House, on top of the inadequate hearing on these important nominations, has created another impasse and unnecessary complication. That is why the minority, while prepared to debate and vote on the Bybee nomination to the 9th Circuit and nine other presidential nominations on February 27, wished to continue the debate on the Cook and Roberts nominations. Let me be specific: On January 29, the Judiciary Committee met in an extraordinary session to consider six important nominees for lifetime appointments to the federal bench, including three controversial nominees to circuit courts: Jeffrey Sutton, Justice Deborah Cook and John Roberts. Several Senators only officially learned the names of the nominees on the agenda for that hearing at 4:45 p.m. on January 28, the day before. On learning that the chairman intended to include three controversial circuit court nominees on one hearing, something virtually unprecedented in the history of the committee, and absolutely unprecedented in this chairman's tenure, Democrats on the committee wrote to the Chairman to protest. We explained that since 1985, when Chairman Thurmond and Ranking Member Biden signed an agreement about the pace of hearings and the number of controversial nominees per hearing, there has been a consensus on the committee that members ought to be given ample time to question nominees, and that controversial nominees in particular deserve more time. We explained that we were surprised by the chairman's rush to consider these three nominees at the same time, considering the pace at which President Clinton's nominees were scheduled for hearings. During the time Republicans controlled the Senate and Bill Clinton was president, there was never a hearing held to consider three circuit court nominees at once. Never. Finally, we explained the importance of giving Senators sufficient time to consider each nominee and properly exercise their constitutional duty to give advice and consent to the President's lifetime appointments to the federal bench. But our request went unanswered, and we were expected to question three nominees in the space of a single day. That proved impossible, as was evident throughout that long day. My colleagues and I asked several rounds of questions of Mr. Sutton, and were only able to ask very few questions of the other two nominees. We asked, during the hearing itself, that the chairman reconsider and ask the other two nominees to return the next day or the next week, and to give them the time they deserved in front of the committee, but he refused. We asked the same thing after the hearing, and were told that indeed the nominees would make themselves available to meet with each of us, so we wrote to accept those offers, although as we explained, we would have preferred to meet with them altogether, and in a public session. But again, we were rebuffed. I wonder, though, if they were available for one sort of meeting, why were they not available for another. I regret that the White House refused our request to bring closure to those matters. During the last 4 years of the Clinton administration, his entire second term in office after being reelected by the American people, the Judiciary Committee refused to hold hearings and committee votes on his qualified nominees to the D.C. Circuit and the Sixth Circuit. Last month, in sharp contrast, this committee was required to proceed on two controversial nominations to those circuit courts in contravention of the rules and practices of the committee. This can only be seen as part of a concerted and partisan effort to pack the courts and tilt them sharply out of balance. I ask unanimous consent to print a letter in the Record.