Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, America is a great and good Nation that has been a beacon to the world on human rights. Nothing should be simpler than for a President of the United States to stand up and say, clearly, that this country does not engage in cruel and abusive interrogation practices such as waterboarding; that those practices are abhorrent and illegal. It saddens me greatly--but does not surprise me--that this President has, once again, refused to make that simple statement. By vetoing the intelligence authorization bill because of a provision that would reemphasize that waterboarding and other forms of torture are illegal, he has added to the shameful legacy of this administration. Let me be clear. This provision should not have been necessary. Waterboarding and other forms of torture are already clearly illegal. Waterboarding has been recognized as torture for the last 500 years. President Teddy Roosevelt prosecuted American soldiers for waterboarding more than 100 years ago. We prosecuted Japanese soldiers for waterboarding Americans during World War II. I supported this provision, despite the fact that there is no question that waterboarding is already illegal, because this administration has chosen to flout the rule of law. They have admitted they have engaged in waterboarding, otherwise known as water torture, and they refuse to say they will not do it again. The positions they have taken publicly on this subject are so destructive to the core values of this Nation and our standing in the world that both Houses of this Congress have chosen to emphasize, again, that our Government is not permitted to use these shameful techniques. His veto, while another in a series of self-interested acts, does nothing to make waterboarding any less illegal and abhorrent. Waterboarding is torture. It always has been torture. William Safire in a recent article in The New York Times Magazine traced the derivation of the term ``waterboarding.'' It was a chilling history, but most disturbing was this recitation of how it was performed on our own servicemembers: [I]n 1953, a U.S. fighter pilot told United Press that North Korean captors gave him the `water treatment' in which `they would bend my head back, put a towel over my face and pour water over the towel. I could not breathe. . . . When I would pass out, they would shake me and begin again.' The greatest tragedy of the President's veto is that he has made it harder to protect Americans and our own servicemembers from this form of torture. This administration has so twisted America's role, law, and values that our own State Department and high-ranking officials in our Department of Defense, and even our Attorney General, are not permitted to say that the waterboarding of an American is illegal. Only our enemies can take comfort in the President's veto. It sacrifices America's high moral ground and the force of international standards and says that high-ranking American officials agree with them that waterboarding is a legal and a useful interrogation ``technique.'' It sends the signal that they are as free to use the ``technique'' as the Bush administration was, if they determine it to be in their best interest. That is how low we have sunk. I confirmed in questioning the Director of the FBI just last week that in its counterterrorism efforts, the FBI continues to follow proscriptions against coercive interrogations. Our top military lawyers and our generals and admirals also understand this issue. They have said consistently that waterboarding is torture and is illegal. They have told us again and again at hearings and in letters that intelligence gathered through cruel techniques like waterboarding is not reliable and that our use and endorsement of these techniques puts our brave men and women serving in the Armed Forces at risk. That is why they have so explicitly prohibited such techniques in their own Army Field Manual, and it is an example that the rest of the Government and the rest of the country should follow. Yet it is a provision that would have required compliance with the Army Field Manual that caused the President to veto this bill. He said it would ``harm our national security.'' He could not be more wrong. When the Senate was considering the nomination of the current Attorney General, I read in The Washington Post and heard from some Members of this body that we could ignore the nominee's refusal to recognize that waterboarding is illegal because he had assured us that he would enforce a new law against waterboarding if Congress were to pass one. I said then that we needed no such law because waterboarding was already illegal. I said then that such an assurance was hollow and dangerous because this President would surely veto any such prohibition. Now he has. This is about core American values, the things that make our country great. America does not torture. It should always stand against torture. This veto is another sad moment for America. America is better than this.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, as we approach the national celebration of Sunshine Week 2008, I am pleased to join with Senator Cornyn to introduce the OPEN FOIA Act of 2008, a concise and straightforward bill to further strengthen the Freedom of Information Act, FOIA. This bill is the next step in the important work that Senator Cornyn and I have undertaken to reinvigorate and strengthen FOIA, and it follows the enactment late last year of the Leahy-Cornyn OPEN Government Act, a law which made the first major reforms to FOIA in more than a decade. The OPEN FOIA Act simply requires that when Congress provides for a statutory exemption to FOIA in new legislation, Congress must state its intention to do so explicitly and clearly in that bill. This commonsense bill mirrors bipartisan legislation that unanimously passed the Senate during the last Congress, S.1181. I hope that the Senate will once again promptly and unanimously pass this good-government bill. While no one can fairly question the need to keep certain government information secret to ensure the public good, excessive government secrecy is a constant temptation and the enemy of a vibrant democracy. For more than 4 decades, FOIA has served as perhaps the most important Federal law to ensure the public's right to know and to balance the government's power with the need for government accountability. FOIA contains a number of exemptions to its disclosure requirements for national security, law enforcement, confidential business information, personal privacy and other circumstances. The FOIA exemption commonly known as the ``(b)(3) exemption,'' requires that Government records that are specifically exempted from FOIA by statute may be withheld from the public. Of course, neither I nor Senator Cornyn would quibble with the notion that some Government information is appropriately kept from public view. But in recent years we have witnessed an alarming number of FOIA (b)(3) exemptions being offered in legislation--often in very ambiguous terms--to the detriment of the American people's right to know. The bedrock principles of open government lead me to believe that (b)(3) statutory exemptions should be clear and unambiguous, and vigorously debated before they are enacted into law. Of course, sometimes this does happen. But more and more often, legislative exemptions to FOIA are buried within a few lines of very complex and lengthy bills, which are never debated openly and publicly before becoming law. The consequence of this troubling practice is the erosion of the public's right to know and the shirking of Congress' duty to fully consider these exemptions. Senator Cornyn and I both believe that Congress must be diligent in reviewing any new exemptions to FOIA, to prevent possible abuses and a situation where the exceptions to disclosure under FOIA swallow this important disclosure rule. The OPEN FOIA Act will ensure openness and clarity about how we treat one of our most important open Government laws. Our bill will also shine more light into the process of creating legislative exemptions to FOIA--which is the best antidote to exemption creep. Democratic and Republican Senators alike have rightly supported and voted for this bill in the past. As I have said many times before, open Government is not a Democratic issue, nor a Republican issue. It is an American value and a virtue that all Americans can embrace. I urge all Members to support this bipartisan good-government bill to strengthen the public's right to know. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, the economists Linda Bilmes and Joseph Stiglitz recently produced an illuminating analysis of the real costs of the war in Iraq, which was published last Sunday in The Washington Post. As the war grinds on toward its fifth year, and as the war continues to warp our Nation's priorities at home and abroad, this is an analysis that every American deserves to see. I also commend it to the attention of the Members of the Senate. I ask unanimous consent it be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I was pleased to join Senators Specter, Biden, and Brownback last year as an original cosponsor of S. 1060, the Recidivism Reduction and Second Chance Act, and to help to shepherd that legislation through the Senate Judiciary Committee. I am pleased that now our hard work will finally enable us to take up and pass the House version of the legislation, which represents significant work and compromise on the part of the bill's Senate sponsors as well as those in the House, in order to move this important bill one step closer to becoming law. Over the past several years that we have been working on this bill, I and others have had to make many painful compromises in order to ensure that this important bill could receive the support it needs to pass and become law. In spite of these sacrifices, the Second Chance Act is a good first step toward a new direction in criminal justice that focuses on making America safer by helping prisoners turn their lives around and become contributing members of society. In recent years, this Congress and the States have passed a myriad of new criminal laws creating more and longer sentences for more and more crimes. As a result, this country sends more and more people to prison every year. There are currently more than 2 million people in jail or prison, and there are more than 13 million people who spend some time in jail or prison each year. Most of these people will at some point return to our communities. What kind of experience inmates have in prison, how we prepare them to rejoin society, and how we integrate them into the broader community when they get out are issues that profoundly affect the communities in which we live. As a former prosecutor, I believe strongly in securing tough and appropriate prison sentences for people who break our laws. But it is also important that we do everything we can to ensure that when these people get out of prison, they enter our communities as productive members of society, so we can start to reverse the dangerous cycles of recidivism and violence. I hope that the Second Chance Act will help us begin to break that cycle. The Second Chance Act would fund collaborations between State and local corrections agencies, nonprofits, educational institutions, service providers, and families to ensure that offenders released into society have the resources and support they need to become contributing members of the community. The bill would require that the programs supported by these grants demonstrate measurable positive results, including a reduction in recidivism. We should be supporting good programs and demanding results for our federal tax dollars. The bill would also set up a task force to determine ways to improve the effectiveness and efficiency of federal programs related to prisoner reentry and would authorize additional programs that would encourage employment of released prisoners, improve substance abuse treatment programs for prisoners, and assist the children of prisoners. I thank Senator Biden, Senator Specter, and Senator Brownback for consistently working with me to make a good bill even better. They accepted my suggestion to fix a provision that would have made it difficult for States without large urban areas to obtain grants. They also agreed with me that it made sense for victim services agencies to have a role in administering grants, for victims' needs to be specifically addressed by grants authorized by the bill, and for safeguards to be added to provisions aiming to integrate families of offenders in order to ensure that children are protected. They also worked with me to include in the Senate's legislation an important study of the collateral consequences of criminal convictions federally and in the States, which would encourage appropriate policy to help successfully reintegrate released offenders into society. I am disappointed that partisan and unprincipled objections prevented this study, which is very important but in no way provocative, from being a part of the final bill. I am glad to report, though, that this important study was passed into law in December as part of the Court Security Improvement Act of 2007. I am similarly glad that we are moving now to pass the best version of the Second Chance Act that we can. I thank the Vermont Department of Corrections and the Vermont Center for Crime Victim Services for helping me to identify important improvements and to make this bill better for the people of Vermont and the people of America. The Vermont Department of Corrections and many others in Vermont strongly support the Second Chance Act, which gives me confidence that this legislation we pass today represents an important step in making our country safer.

Mr. LEAHY

Mr. LEAHY. Mr. President, I appreciate Senator Mikulski's commitment to helping those dedicated men and women who are not yet U.S. citizens but who have served all Americans as members of the Armed Forces. Easing the path to citizenship by removing duplicative procedures for these dedicated men and women is the right thing to do, and I am glad to support Senator Mikulski's efforts. However, I also wish to note my concern with inclusion of language in the bill, at the administration's behest, that appears to anticipate a future expansion of the collection of biometric information from individuals who seek to become naturalized citizens or who seek other immigration benefits. In light of the purpose of Senator Mikulski's bill, which is to streamline the naturalization procedures for legal permanent residents serving in the military, it would make little sense to place additional obstacles in the path of those who have made the ultimate commitment to the United States. I also register this concern to make clear that the language in this bill with respect to biometric information should in no way be misconstrued as authority for the administration to unilaterally expand the type of biometric information beyond what is currently required to obtain immigration benefits from the U.S. government. Federal immigration law is the province of the Congress, and Congress retains the sole power to determine the extent of rulemaking authority afforded to Federal immigration agencies. The involvement of Congress in these decisions is crucial to ensure that the procedures by which we admit or deny individuals entry to the United States take into account the interests of privacy, and are faithful to the welcoming traditions by which our nation has prospered. Only Congress can provide the deliberative, democratic process necessary to ensure that any future requirements are consistent with American values. We all recognize the need for robust security at our borders. But over the last 7 years, the reputation of the United States as a welcoming nation has been diminished as a result of often misguided policies that take a reactionary, blunt, and hostile approach to immigration. The administration has met its failure to enact meaningful immigration reform with layer upon layer of security initiatives that in some cases do little more than foreclose the promise of our great Nation for so many who seek opportunity, advancement, or refuge. America's security now and in the future demands more than border walls and punitive, enforcement-only immigration policies. Our future security, as well as our future prosperity, depends upon the balance that has been absent for so long.

Mr. LEAHY

Mr. LEAHY. Mr. President, I was impressed with what the Senator from Ohio said, and I commend him for what he said. We talk about the cost of the President's war in Iraq and we have been in Iraq longer than we were in World War II and the cost just in interest of the huge deficits and the tripling of the national debt under the Bush-Cheney administration; if we take the money we pay on interest on the national debt and the money we pay in Iraq, it comes to somewhere around $1 billion a day, every single day of the year. Think what we could do with that $365 billion a year: health care for everybody, dramatically improve our schools, research on Alzheimer's, diabetes, AIDS, cancer, so many things. Instead, we are sending interest payments overseas and money to Iraq. So I commend the Senator from Ohio for speaking out as he did.

Mr. LEAHY

Mr. LEAHY. Mr. President, if the Senator will yield for a unanimous consent request? Mr. President, I ask unanimous consent that upon the completion of the statement by the Senator from Ohio, I be recognized, and that upon the completion of my statement, I believe the Senator from Texas, Mr. Cornyn, wishes to be recognized.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier this week the Senate confirmed Mark Filip to be the Deputy Attorney General at the Department of Justice. That is the person second in command at the Department. Yesterday, the Judiciary Committee reported four judicial nominations for lifetime judicial positions, and we reported three more executive nominations, including the nomination of Kevin O'Connor to be the Associate Attorney General. That is the third highest ranking official at the Department of Justice. These executive branch nominations would have been on the Senate's Executive Calendar sometime ago, but for some reason the Senate Republicans did not cooperate to get them out of Committee. We were going to put them on the Senate Judiciary Committee's calendar--and did--in mid-February. What happened? The Republicans effectively boycotted the meeting. Now, some of them were out giving speeches saying: Why don't we have some of these nominations go through? But they were effectively blocking the meeting. So we tried it a second time in February. Again, a lack of a quorum. In fact, at the first, only one or two Republicans remained present. At the latter hearing, the ranking member, the senior Republican on the committee, left before a quorum gathered. We concluded the last session of this Congress by confirming each and every judicial nomination that was reported by the Judiciary Committee, all 40. None were carried over into this new year. In February, the Judiciary Committee held two hearings for seven judicial nominees, including a circuit nominee. Despite my efforts, Republican members of the Judiciary Committee effectively boycotted our business meetings last month and obstructed our ability to report judicial nominations and high-ranking Justice Department nominations. It is more than ironic--in fact, it is somewhat cynical--that the President and Senate Republicans simultaneously staged partisan media events and complained that the Senate Democrats are not moving their nominations forward when the Republicans themselves prevented the Judiciary Committee from moving them forward. These complaints ring as hollow as the complaints that we heard again this morning about the expiration of the so-called Protect America Act, which expired because the White House and congressional Republicans refused to extend it. We found out why they refused to extend it, which is because they wanted to blame their actions on Democrats. I know it is an election year, but this kind of cynicism does not help the United States, and it is one of the reasons so many Americans are upset with the whole political process and why I believe the President is at such a low rating in the political polls. Their actions in blocking us from doing something and then asking why didn't we do it remind me of the old saw that we former prosecutors used to talk about all the time, about the youngster who murdered his parents but then said to the court: Have mercy on me, I am an orphan. You can't have it both ways. Despite the partisan posturing by the President and Senate Republicans, I have continued to move forward and sought to make progress but, I must admit, my patience is wearing thin. Two weeks ago, during the congressional recess, I chaired our third nominations hearing of the year. At that time, the committee considered three judicial nominations, including that of Catharina Haynes of Texas to be a Circuit Judge on the Fifth Circuit. I knew that this nomination was important to Senator Cornyn. So in spite of her participation at the recent partisan political rally and photo op at the White House, I moved forward with that previously scheduled hearing. Instead of receiving thanks for making the effort to hold a confirmation hearing during the recess, I have actually been criticized by Republicans for doing so. I commend the ranking member of the Judiciary Committee for acknowledging the years of Republican pocket filibusters, when they pocket-filibustered more than 60 of President Clinton's judicial nominations, as excess. Yes, I would agree it is excess. It had never been done by any party, Republican or Democratic, before. I have long said that what would help the process is a sincere, full acknowledgment by those Republican Senators who worked so hard to obstruct and pocket- filibuster President Clinton's moderate and well-qualified judicial nominees of their excesses and mistakes. Hope springs eternal, and it will probably be an eternity before that acknowledgment will be made by the same people who created the problem and now complain about it. I do not hold the senior Senator from Pennsylvania responsible for those activities. He wasn't chairing the committee. He was not a member of the Republican leadership or even one of the more active participants in that effort. In fact, except for his vote to defeat the nomination of Justice Ronnie White of Missouri, a highly qualified African American for the Federal judiciary, an action for which he subsequently apologized, I cannot think of another judicial nominee he opposed. As chairman of the Judiciary Committee, I have worked hard to turn the other cheek. When I became chairman, I wanted to greatly improve on the sorry treatment of reported nominees when the Republicans were in control and considering President Clinton's nominees. During the 17 months I was chairman during President Bush's first term I tried to reverse that trend. I said we are not going to pocket-filibuster 60 judges in the way that the Republicans did to President Clinton. Let's move these judges, even though a lot of the vacancies were created by their filibustering. So we Democrats acted faster and more favorably on more of this President's judicial nominees than under either of the Republican chairmen who succeeded me as chairman. During those brief 17 months I was chairman before, the Senate confirmed 100 judicial nominations. During the 2 years my friend from Pennsylvania was Chairman, the Republicans confirmed just 54 judicial nominations. Granted, two were Supreme Court justices, but 54 in 2 years, and with strong help from the Democrats, as compared to 100 during the 17 months I was chairman. I was surprised earlier this week to hear the ranking member say that nominations were ``stymied'' when I became chairman. Complaints ring hollow under those circumstances, given the improvements I made in making the formerly secret process of checking the home State Senators as a matter of public record. Keep in mind that under the Republicans they allowed secret holds. That is how they were able to block more than 60 of President Clinton's nominations. Instead of the holds or blue slips, I made them public. When I assumed the chairmanship last year, the committee and the Senate continued to make progress with the confirmation of 40 more lifetime appointments to our Federal courts. That is more than were confirmed during any of the 3 preceding years under Republican leadership and more than were confirmed in 1996, 1997, 1999, and 2000, when a Republican-led Senate was considering President Clinton's nominations. Thus, as chairman, I have worked to help the Senate act to confirm 140 lifetime appointments in only 3 years, as compared to 158 under 4 years of Republican control. Stymied? Equally misleading is a Republican talking point that the Judiciary Committee didn't hold a hearing for circuit nominations for 5 months. What they do not say is that as a result of the mass resignations at the Justice Department in the wake of the scandals of the Gonzales era, including the resignation of the Attorney General himself following those scandals, the committee was holding seven hearings on high- ranking replacements to restock and restore the leadership of the Department of Justice between September of last year and last month, including confirmation hearings for a new Attorney General to replace the disgraced Attorney General who was forced out, a new deputy Attorney General, a new associate Attorney General, and many others. Because of the scandal of the Bush-Cheney administration and the Justice Department, there are all these vacancies. Of course, when they finally got around to replacing these people, we felt the first priority was to hold hearings so there would be an Attorney General and senior leadership at the Department of Justice. Of course those 5 months also include the December and holiday recesses and the break between sessions, so for many weeks we were not here. That is in comparison to the first 6 months of 1999, when the Republican chairman refused to schedule any judicial nomination hearings, in order to force the White House to consider his pick for a judgeship in Utah. The Republican whip urged committee attention to the President's nominations to fill the many vacancies resulting from the resignations of the Gonzales leadership group at the Justice Department. And when we do, in fact, have those hearings and do that work and we make them a priority, we are criticized. It appears we are damned if we do and damned if we don't. We held a prompt 2-day hearing on the nomination of Michael Mukasey to be Attorney General, a hearing on the nomination of Judge Filip to be Deputy Attorney General, a hearing on the nomination of Kevin O'Connor to be Associate Attorney General, and hearings on a number of key assistant attorneys general and heads of Justice Department offices. But you would never know it from the self-serving Republican complaints. We get no credit for any of the good things we have done, for any of our diligence or hard work. When the Republican leader and others come to the floor and make these accusations, I think it is because they don't want to have to explain their roles in the 60 pocket filibusters of President Clinton's nominees. One of those people who was blocked and who they say was not qualified was picked as the dean of the Harvard Law School, a most prestigious position, where they produce hundreds of the brightest lawyers in the country. They picked her, a highly qualified woman, and African-Americans, and Hispanics, who were all pocket filibustered by the Republicans. Maybe they hope that in an election year people will not remind them of that. During the 1996 session, the last of President Clinton's first term, the Republican-led Senate did not confirm a single circuit court nomination. At the end of his Presidency, they took 17 circuit court nominations that they pocket filibustered and refused to act on them and sent them back to President Clinton, hoping to keep those seats vacant for a Republican President. Why was it that Republicans chose to reverse course on the treatment accorded by Democrats to nominations of Presidents Reagan and Bush in the Presidential election years of 1988 and 1992? Why were so many nominations pocket filibustered? Who is responsible? Why have they always refused to make the blue slips of that era public? Why have they always hidden who it was holding up these judges? Why did they want to keep that secret? Why was Bonnie Campbell, the former attorney general of Iowa, who was supported by both Democratic Senator Tom Harkin and Republican Senator Chuck Grassley, never allowed to be considered by the Judiciary Committee or the Senate after a hearing? Why was she pocket filibustered? They ought to answer some of these questions before they level any accusations. They have far too many skeletons in their closet to try to pick a bone with the Democratic side. To any objective observer, the answer is clear: The Republicans chose to stall consideration of circuit nominees and maintain vacancies during the Clinton administration in anticipation of a Republican Presidency. They took the Thurmond rule to a whole new stage by utilizing it over a 5-year period, instead of the seven or eight months that normally takes place during a Presidential election year. Because of their irresponsible actions, vacancies in the courts rose to over a hundred. Circuit court vacancies doubled during the Clinton years because Republicans would not allow him to fill those vacancies. In those years, Senator Hatch justified the slow progress by pointing to the judicial vacancy rate. When the vacancy rate stood at 7.2 percent, Senator Hatch declared that ``there is and has been no judicial vacancy crisis'' and that this was a ``rather low percentage of vacancies that shows the judiciary is not suffering from an overwhelming number of vacancies.'' Because of Republican inaction, the vacancy rate continued to rise, reaching nearly 10 percent at the end of President Clinton's term. The number of circuit court vacancies rose to 32 with retirements of Republican appointed circuit judges immediately after President Bush took office. But as soon as a Republican President was elected, they said: Why don't we have judges in these vacancies? The sky is falling, the sky is falling. Suddenly they said that things are coming to a halt in this country because we do not have enough judges. Of course they do not mention that these vacancies occurred because they pocket filibustered those judges. They have been extraordinarily successful over the past dozen years. Currently, more than 60 percent of active judges on the Federal circuit courts were appointed by Republican Presidents. More than 35 percent have been appointed by this President. We have cut the vacancy rate in half. Had we Democrats done to them what they did to us, we would still have a huge vacancy rate. But we try to be more responsible, and we cut it in half. Another way to look at their success is to observe that the Senate has already confirmed three- quarters of this President's circuit court nominees over the last 7 years. Republicans only confirmed about half of President Clinton's. Despite these efforts to pack the Federal courts and tilt them sharply to the right, one of my first acts when I took over as chairman in 2001 was to restore openness and accountability to the nominations process that had been abused when the Republican-controlled Senate pocket-filibustered President Clinton's nominees with anonymous holds and without public opposition or explanation. In 2001, with a Democratic-led Senate considering President Bush's nominees, we drew open the curtains on the nominations process, making blue slips public for the first time. Republicans, during the Clinton administration, cloaked their actions in secrecy and, to this day, will not explain their actions. I have not treated this President's nominees in that way. We have considered nominations openly and on the record. We have considered nominations I do not support, something that was never done by a Republican chairman. I am puzzled that in his recent proposals, the ranking member has suggested that the Senate bypass the committee's process for vetting nomination, and is also apparently calling for an end to the role of home State Senators. He is now proposing rules for nominations that he did not follow in the 2 years he served as chairman of the committee, from 2005 to 2006, and that he did not propose from 1995 to 2000 when Republicans were in control of the consideration of President Clinton's nominees. When he was chairman of the Judiciary Committee, Senator Specter respected the blue slip, which is the means by which home State Senators approve or disapprove of a nomination before consideration of the nomination proceeds. Requiring the support of home State Senators is a traditional mechanism to encourage the White House to engage in meaningful consultation with the Senate. Many of the President's current nominees do not have the support of their home State Senators. That is why the nomination of Duncan Getchell, opposed by two of the most distinguished Senators in this Chamber, Republican Senator John Warner and the distinguished Democratic Senator Jim Webb, was finally withdrawn. That is why the nomination of Gene Pratter to the third circuit has not been considered, as well as six other circuit nominees including nominees to the third circuit, the two current nominees to the sixth circuit, a nominee to the fourth circuit, and the nominee to the first circuit. Of the 11 circuit court nominations that have been pending before the Senate this year, 8 have not had the support of their home State Senators. Indeed, nearly half of the 28 nominations listed by Senator Specter in his recent letter to me do not currently have blue slips signaling support from home State Senators. The reason we know this is that unlike the Republican policy of keeping secret the so-called blue slips, I make them public knowledge. You might ask why do we pay attention to home State Senators? It is because we are elected to represent our States. There is only one place in the United States where every State is equal, and that is here in the Senate. Out of 300 million Americans, only 100 of us have the privilege to serve here at any given time, two from every State. The distinguished Presiding Officer represents a great State, a wonderful State, a State that helped form this country. It is much larger than mine. My State was the 14th State in the Union. We have two Senators so that we can keep the identity of our State. I think of one of President Bush's circuit nominees for a circuit court judgeship representing one of our States, where the two Senators objected and so the nomination did not go through. To this day, I get criticized by the Republicans because that nomination did not go through, even after the nominee was charged with criminal fraud and convicted. They still criticized us for not giving him a lifetime position on the circuit court. They ought to say thank you to the two Senators who said do not put that nomination through. Republican complaints about nominations ring hollow in light of the actual progress we have made and, quite frankly, their success. The Judiciary Committee and the Senate have worked to approve an overwhelming majority of President Bush's nominations for lifetime appointments to the Federal bench. The Senate has confirmed over 86 percent of President Bush's judicial nominations, compared to less than 75 percent for President Clinton's nominations. As I have noted, the Senate has confirmed nearly three quarters of President Bush's nominations to influential circuit courts, compared to just over half of President Clinton's. Earlier this week on the Senate floor, in a standard ploy in these partisan attacks, my words from 8 years ago were taken out of context. At that time, I urged the Republican majority to abandon its use of pocket filibusters. I urged them to make public their process and not keep it secret, and do what we have done since I was first Chairman. I even urged then-Governor Bush, who was the Republican nominee for President, to intervene in a positive way. They rejected my efforts. They continued to pocket filibuster nominees and maintain vacancies on the court. They continued to do what they had done during the 1980 Presidential campaign, when President Reagan was running for President and Senator Thurmond, then in the Republican minority as ranking member of the Judiciary Committee, instituted a policy to stall President Carter's nominations. That policy, known as the ``Thurmond Rule'', was put in when the Republicans were in the minority. It is a rule that we still follow, and it will take effect very soon here. For a number of years I have urged now President Bush to join with Democrats and Republicans. Regrettably he continues to insist on nominating controversial nominees in the mold of Duncan Getchell and Claude Allen. I extended another olive branch to him by my letter last November. I have received no response. Despite urging the President to work with us, 20 current judicial vacancies almost half have no nominee. In addition, many of the judicial nominations we have received do not have the support of their home State Senators. If the White House and Senate Republicans were serious about filling vacancies and not seeking to score partisan political points, the President would not make nominations that are opposed by home State Senators. If they were serious about filling vacancies, they would not spend the rest of the Bush Presidency fighting over a handful of controversial nominations, rather than working with us to make progress. They would not keep criticizing us for not putting through a person who was convicted of criminal fraud. If they were serious about filling vacancies, the Republicans on the committee would attend committee meetings and help make a quorum to report nominations to the Senate. I have consulted with the senior Senator from Pennsylvania and we had earlier exchanged letters. The former chairman knows from my January 22 letter what the situation is. He knows the history of the Thurmond rule, by which Republicans, then in the minority, insisted that judicial vacancies in the last year of a President's term remain vacant in order to be filled with the nominations of the next President. He understands the dynamics in the last year of a President's term. And no modern President has been as divisive as this President on these issues. This is the Senate. This is not Alice in Wonderland. I would rather see us work with the President on his selection of nominees that the Senate can proceed to confirm than waste precious time fighting about controversial nominees. That is why I have urged the White House to work with Senators Warner and Webb to send to the Senate without delay nominees to the Virginia vacancies on the fourth circuit. Mr. President, you have had enormous experience in your own State. I ask this of all Senators: If you have a highly respected Republican Senator and a highly respected Democratic Senator both saying we want this person to be on a Federal circuit court, and they both vouch for him or her, you know that person is going to go sailing through this place. I thank the Republican members of the Judiciary Committee this week for not boycotting our meeting. As a result, we have seven nominations on the Executive Calendar who would not be there if they continued the boycott. I have urged the White House to work with all Senators from States with vacancies on the Federal bench. We may still be able to make progress before the Thurmond rule comes into effect but only with the full cooperation of this President and of the Republican Members of this Senate.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Organization of Petroleum Exporting Countries, OPEC, is an international cartel. It limits the supply of oil, which helps keep fuel prices high, and it is one of the major causes of the relentless increase in oil prices. This week, OPEC members met again. They refused to increase the supply of oil. If such a meeting took place in almost any other context, the participants would likely be arrested for an illegal conspiracy in restraint of trade. Can you imagine somebody selling some other supplies such as medical equipment or items we need in this Nation, electricity. Let's say the utilities all met like that and they said: We will hold back electricity so we can raise the prices. There would be an antitrust suit, there would be an illegal-restraint-of- trade suit brought immediately. I wish the administration would join me and Senator Kohl and 68 other Senators--Republicans and Democrats alike--and 345 Members of the House of Representatives of both parties who have voted for NOPEC legislation. This would hold accountable certain oil-producing nations for their collusive behavior which has artificially reduced the supply and inflated the price of fuel. In April 2004, when American consumers were paying $1.78 per gallon at the pump, I warned energy experts were predicting the price of gas might rise to $2.50, to $3 a gallon. The administration did nothing. Last October, when American consumers were paying $2.87 per gallon at the pump, I warned that oil might be on its way to over $100 a barrel, and the administration did nothing. This week, oil reached a record $104 a barrel and gas prices averaged $3.16 a gallon. So how much will families in Vermont and across America have to pay to heat their homes in this long winter or to drive to work before the President takes action? Further, at a news conference last week, the President was not even aware--was not even aware as President of the United States--that many are predicting that gas prices will hit $3.50 or even $4 a gallon by spring. He simply was not aware of how crippling high prices really are for Americans. Two facts are painfully clear: Gas prices have more than doubled since the President took office, and the President has no plan to protect consumers and our economy. He promised the American people that with his family's oil ties, he would effectively be able to jawbone OPEC into being nice to him and that they would raise production to lower prices if he asked them. It is now evident for all to see that it is just another unfulfilled commitment from the administration. I said this before and I say it again today: The principal cause of the relentless increase in oil prices is not just a natural supply issue but market manipulation by OPEC. In January, the President's best attempt to increase the supply of oil was to tell Saudi King Abdallah that paying more for gasoline hurt some American families. Well, yes. It is a lot more than some families, it is most. I am pleased the administration acknowledges the effects of rising gas prices on Americans, but Saudi Arabia is a founding member of OPEC, and they have every incentive to limit output and keep prices artificially high. The futility of going to an OPEC member and pleading for it to raise output is now obvious to all. Instead of President Bush holding hands with the oil cartel--literally and figuratively--the administration should join us in trying to protect the interests of the American people. It is important to emphasize again that if a meeting such as the OPEC meeting that took place this week happened in almost any other context, the participants would likely be arrested for an illegal conspiracy in restraint of trade. Yet this President stood in front of the King of the largest participant in the oil cartel and asked for relief instead of saying: It is an illegal activity, stop it. If the administration truly acknowledges the impact artificially high oil prices have on our Nation, he should join with this Congress and support NOPEC legislation. Instead of pleading for help, the next time the President of the United States meets with members of the cartel, the President should be able to explain that entities engaging in anticompetitive conduct that harms American consumers can expect an investigation and they can expect prosecution. When I was a prosecutor, it was not enough just to ask people: Don't break the law. You had to outright say: If you break the law, we will arrest you. We cannot claim to be energy independent while we permit foreign governments to manipulate oil prices in an anticompetitive manner. It is wrong to let these members of OPEC off the hook just because their anticompetitive practices come with the seal of approval of national governments. Mr. President, I see the distinguished Senator from Texas on the floor. I already asked that he be recognized after me.

Mr. LEAHY

Mr. LEAHY. Mr. President, Senator Vitter has submitted an amendment to the Consumer Product Safety Commission, CPSC, Reform Act that would discourage State attorneys general from bringing enforcement actions against those who violate consumer product safety regulations. This amendment goes even further than the Cornyn amendment that we voted on last night to gut the enforcement provisions in the bill. The Pryor- Stevens legislation wisely gives State attorneys general the power to protect their citizens from harmful products by pursuing such litigation. We should not gut that important enforcement power by adding a threat that could shift enforcement costs to taxpayers. Senator Vitter's amendment would allow the prevailing party in a civil action to recover costs and attorney's fees. This means that the taxpayers would bear the costs and attorney's fees of corporations sued by a State attorney general if the suit is unsuccessful. Absent evidence that State attorneys general are pursuing frivolous litigation against corporations, this amendment is not only unnecessary, but it presents a departure from our established legal system. The measure would have a chilling effect on State attorneys general who would like to pursue possible violations of consumer product safety regulations but may fear incurring the legal costs of doing so. The purpose of the CPSC Reform Act is to ensure that American consumers have access to the safest products. By allowing State attorneys general to bring enforcement actions against corporations that violate consumer safety laws, States are able to pursue those who threaten the safety of consumers, even when Federal regulators fail to do so. However, Senator Vitter's amendment would tie the hands of State attorneys general by making them choose between enforcing the law and potentially burdening the taxpayers with corporations' legal fees or doing nothing when faced with products that have the potential to harm consumers. I will oppose this amendment because it discourages enforcement of consumer product safety measures.

Mr. LEAHY

Mr. LEAHY. Madam President, I support Senator Kohl's amendment to the Consumer Product Safety Commission, CPSC, Reform Act. This legislation would make it more difficult to prevent public disclosure of information in lawsuits involving a product that poses a serious public heath or safety risk. Senator Kohl's amendment would promote transparency in court proceedings by prohibiting courts from restricting access to information in civil cases that could affect public health or safety. The amendment would prohibit judges from sealing court records, information obtained through discovery, and certain details of a settlement unless the public health or safety interest is outweighed by a specific and substantial interest in maintaining confidentiality. When issued, protective orders could be no broader than necessary to protect the privacy interest asserted. The Judiciary Committee heard compelling testimony in a recent hearing about the tragic consequences of court secrecy in cases concerning defective products. We heard from Johnny Bradley, a Navy recruiter who tragically lost his wife in a car wreck that resulted from tread separation on a Cooper tire on his Ford Explorer. Mr. Bradley chose to buy Cooper tires in the wake of the Bridgestone/ Firestone recall, believing that they would be safer. It was not until after the tragic death of his wife that he found out during litigation that Cooper had faced numerous similar incidents and had thousands of documents detailing design flaws and defects in the company's tires. The details from as many as 200 lawsuits against Cooper remained covered up through various protective orders, demanded by the tire company. As a result, vital information that could have saved Mr. Bradley's wife was not disclosed to the public. Mr. Bradley's story is just one example of the terrible consequences of court secrecy in cases involving products that pose health and safety risks. Last December, Senator Kohl introduced the language contained in this amendment as the Sunshine in Litigation Act. I am a cosponsor of Senator Kohl's bill, and I support this amendment. In an environment where the administration is clearly not enforcing product safety regulations, we need to make sure that consumers have better access to information that affects their health and safety. Cloture Motion

Mr. LEAHY. Mr. President, I realize we earlier thought we might vote at 12:30 p.m. That has been put off to a little later. I wish to talk about the pending amendment to the Consumer Product Safety Commission Reform Act. I am very worried about it. It would tie the hands of State attorneys general who seek to protect their citizens from harmful products. I see the distinguished chairman on the floor. He was an attorney general. He knows what is involved in these areas. I applaud his efforts for including in the legislation the power for State attorneys general to enforce consumer product safety violations. As a former prosecutor and as one who watches how carefully anything such as this is done in my home State of Vermont, I certainly do not want us to gut that important enforcement provision by immunizing corporate bad actors for the reasonable costs and fees it takes State attorneys general to bring these actions. States are not rolling in money, but they expect their attorneys general to protect them. If wrongdoers have to pay part of that cost, so be it. If we strike line 5, 6, and 7 of the pending bill, we immunize corporate bad actors. I don't think any of us should have to go home and tell our legislatures: Boy, we just gutted the ability of our State attorney general to do something, and if he does do something, we want to hit you with a higher bill than you would have paid otherwise. I understand Senator Cornyn's floor statement in support of his amendment mentioned nothing about reasonable fees and costs incurred by the offices of State attorneys general. Rather, he focused on contingency fee agreements that some attorneys general have decided to make with private lawyers to enforce laws. Setting aside the contingency fee argument for a moment, I wish to highlight that his amendment would do more than just micromanage the types of staffing decisions State attorneys general enter into. I am always somewhat nonplused to hear Members say how we have to get the Federal Government off our backs and let our States make the determination, that Washington doesn't know best, that our State capitals, legislatures, and Governors have a better idea how to do things, and then all of a sudden bring in amendments that would just run roughshod over our 50 States, would relegate our State Governors and legislators to the dustbin. We should not strike the lines of this bipartisan legislation that make corporations found liable for violating consumer laws responsible for reasonable costs and fees incurred by States. We do this in private litigation all the time. If you have somebody who has violated the law, they ought to pay the costs and not ask the taxpayers to pay the costs for the violators. The purpose of Senator Cornyn's amendment is to tie the hands of State attorneys general by prohibiting them from entering into certain types of contracts with private lawyers. I have been here long enough to remember a time when principles of federalism and deferring to State governments meant something in this great Chamber. State elected officials are accountable to their citizens. If the State voters do not like the way a State attorney general is staffing cases, that is easy-- just don't reelect him or her. But Senator Cornyn's amendment would make the staffing decision for all State attorneys general, whether it is in Vermont or New Hampshire or Arkansas or Texas or anywhere else. What he is asking us to do, the 100 Members of this body, is to stand up and say we have greater wisdom than all the legislatures in this country and we are going to tell individual States how they should conduct their business. I believe that is unwise, especially in the context of unsafe products that have the potential to harm consumers. So I oppose this amendment. It undermines the important enforcement role of State attorneys general, and it runs roughshod--it runs roughshod--over any State where their legislature, their Governor, their attorney general wants to protect the people of their State from unsafe consumer products. Mr. President, I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, today we continue the process of rebuilding the integrity and independence of the Justice Department by confirming the nomination of Mark R. Filip to be the new Deputy Attorney General, the number two position at the Department of Justice, who acts as the Attorney General in the absence of the Attorney General. Regrettably, this important nomination has been stalled for over a month due to the bad faith of the Bush-Cheney administration in failing to process Democratic recommendations to independent boards and commissions, and Senate Republicans' rejection of up-or-down votes on nominations to the Federal Election Commission. I commend the majority leader for his efforts to resolve this impasse. I also thank him for agreeing with me to allow the Filip nomination to proceed at this time. It is a demonstration of good faith on his part and I thank him. I strongly support the majority leader in his efforts to make progress by calling up Judge Filip's nomination today. A little more than a year ago, the Judiciary Committee began its oversight efforts for the 110th Congress. Over the next 9 months, our efforts revealed a Department of Justice gone awry. The leadership crisis came more and more into view as Senator Specter and I led a bipartisan group of concerned Senators to consider the U.S. attorney firing scandal, a confrontation over the legality of the administration's warrantless wiretapping program, the untoward political influence of the White House at the Department of Justice, and the secret legal memos excusing all manner of excess. This crisis of leadership has taken a heavy toll on the tradition of independence that has long guided the Justice Department and provided it with safe harbor from political interference. It shook the confidence of the American people. Through bipartisan efforts among those from both sides of the aisle who care about Federal law enforcement and the Department of Justice, we joined together to press for accountability that resulted in a change in leadership at the Department, with the resignations of the Attorney General and many high-ranking Department officials--including then-Deputy Attorney General Paul McNulty, whose successor we consider today. The tired, partisan accusations the President engaged in at the White House recently, in which he used Republican Senators and nominees as political props, are belied by the facts. They are about as accurate as when President Bush ascribed Attorney General Gonzales' resignation to supposed ``unfair treatment'' and suggested ``his good name'' was ``dragged through the mud for political reasons.'' The U.S. attorney firing scandal was of the administration's own making. It decimated morale at the Department of Justice. A good way to help restore the Justice Department would be for this administration to acknowledge its wrongdoing. We need a new Deputy Attorney General. We need someone who understands that the responsibilities and duties of that office are not to act as a validator for the administration, or as the chief defense lawyer for the White House. We are reminded by the examples of Elliot Richardson and William Ruckelshaus from the Watergate era--and more recently the examples of James Comey, Jack Goldsmith, and Alberto Mora--that law enforcement officials must enforce the law without fear or favor to their benefactors at the White House. We have now seen what happens when the rule of law plays second fiddle to a President's agenda and the partisan desires of political operatives. The truth is that it was the President who deferred the critical work of restoring the Department's independence and credibility by delaying this nomination for half a year. This administration knew from at least May 14, 2007, when Mr. McNulty announced that he was resigning, and should have known for weeks before, that there was to be a vacancy in the important position of Deputy Attorney General. Yet even after the former Deputy announced his resignation and proceeded to resign months later, the administration failed to work with the Senate to fill this vital position. The President did not nominate Judge Filip until last December. I announced that the Judiciary Committee would hold a hearing less than 2 weeks later, before Congress adjourned for the year, immediately upon receiving the necessary background materials from the White House. The committee moved as expeditiously as possible and we reported out Judge Filip's nomination at our first executive business meeting of the 2008 session. What is being ignored by the President and Senate Republicans as they play to a vocal segment of their Republican base is that we have worked hard to make progress and restore the leadership of the Department of Justice. In the last few months, we have confirmed a new Attorney General, and held hearings for the number two and number three positions at the Department of Justice, as well as for several other high-ranking Justice Department spots. It is vital that we ensure that we have a functioning, independent Justice Department. A month ago, the Judiciary Committee held our first oversight hearing of the new session and the first with new Attorney General Michael Mukasey. We will hold another oversight hearing this week with FBI Director Mueller. These are more steps forward in our efforts to lift the veil of White House secrecy, restore checks and balances to our Government, and begin to repair the damage this administration inflicted on the Department, our Constitution, and fundamental American values. We continue to press for accountability even as we learn startling new revelations about the extent to which some will go to avoid accountability, undermine oversight, and stonewall the truth. We find shifting answers on issues including the admission that the CIA used waterboarding on detainees in reliance on the advice of the Department of Justice; the destruction of White House e-mails required by law to be preserved; and the CIA's destruction of videotapes of detainee interrogations not shared with the 9/11 Commission, Congress or the courts. The only constant is the demand for immunity and unaccountability among those in the administration. This White House continues to stonewall the legitimate needs for information articulated by the Judiciary Committee and others in the Congress, and contemptuously to refuse to appear when summoned by congressional subpoena. In spite of the administration's lack of cooperation, the Senate is moving forward with the confirmation of Judge Filip today. In spite of the partisan, political display at the White House last month, staged while a convention of right-wing activists were in town, we are proceeding today. With Judge Filip's confirmation, we will have confirmed 23 executive nominations, including the confirmations of nine U.S. attorneys, four U.S. marshals, and the top two positions at the Justice Department so far this Congress. We could be in a position to make even more progress if the Republican members of the Judiciary Committee would work with us in considering the nominations of this Republican President. We have had the nominations of Kevin O'Connor to be Associate Attorney General, the number three position at the Department, and Gregory G. Katsas, to be Assistant Attorney General of the Civil Division, on our agenda since the middle of February. Three weeks ago, I placed the O'Connor and Katsas nominations on the committee's agenda but Republican members of our committee did not show up to make a quorum at that meeting or at our meeting last week. I adjourned both our February 14 and February 28 meetings for lack of a quorum. At the first meeting, only one Republican Senator was present. At the latter, the ranking member chose to leave. I hope we will be able to act on those nominations this week. Of course, we could have made even more progress had the White House sent us timely nominations to fill the remaining executive branch vacancies with nominees who will restore the independence of Federal law enforcement. There are now 19 districts across the country with acting or interim U.S. attorneys instead of Senate-confirmed, presidentially appointed U.S. attorneys, and for which the administration has still failed to send the Senate a nomination. For more than a year I have been talking publicly about the need to name U.S. attorneys to fill these vacancies to no avail and urging the President to work with the Senate. I was disappointed but not surprised to see the administration return to tired political attacks. What better time than right now, when the economy is slipping farther off the tracks, when the President's budget shows record annual triple-digit deficits, when al-Qaida is stronger and more virulent than ever, according to General Hayden and Director McConnell, and with Osama bin Laden still at large, when gas prices and unemployment are rising, and a mortgage crisis grips many parts of the country. I wish the President would put aside his partisan playbook and work with us. I trust that Mark Filip understands that the duty of the Deputy Attorney General is to uphold the Constitution and the rule of law not to work to circumvent it. Both the President and the Nation are best served by a Justice Department that provides sound advice and takes responsible action, without regard to political considerations--not one that develops legalistic loopholes to serve the ends of a particular administration. I congratulate Judge Filip and his family on his confirmation.

Mr. LEAHY

Mr. LEAHY. Mr. President, I would apologize for the lack of judicial nominations on the Executive Calendar but for the fact that is has been the refusal of Republicans to cooperate this year in reporting out nominations that has lead to the current circumstance. The fact is that we concluded last session by confirming each and every judicial nomination that was reported out of the Judiciary Committee. None were carried over into this new year. And despite my efforts in February, when the Judiciary Committee held two hearings for seven judicial nominees, including a circuit nominee, Republican members of the Judiciary Committee effectively boycotted our business meetings in February and obstructed our ability to report judicial nominations and high-ranking Justice Department nominations. I adjourned both our February 14 and February 28 meetings for lack of a quorum. At the first meeting only one Republican Senator was present. At the latter, the ranking member chose to leave. Despite the partisan posturing by the President and Senate Republicans, I have continued to move forward and sought to make progress but, I must admit, my patience is wearing thin. Two weeks ago, during the congressional recess, I chaired our third nominations hearing of the year. Included were three judicial nominations, including that of Catharina Haynes of Texas to be a circuit judge on the Fifth Circuit. I knew that this nomination was important to Senator Cornyn. So in spite of her participation at the recent partisan political rally and photo op at the White House, I proceeded with that previously scheduled hearing. Despite urging the President to work with us, 19 current judicial vacancies--almost half--have no nominee. In addition, several of the judicial nominations we have received do not have the support of their home state Senators. Of the vacancies deemed by the Administrative Office to be judicial emergencies, the President has yet to send us nominees for seven of them, more than a third. Of the circuit court vacancies, nearly a third are without a nominee and more than half of the current circuit court nominees do not have the support of both home State Senators. If this President had worked with the Senators from Michigan, Rhode Island, Maryland, California, New Jersey, and Virginia, we could be in position to make more progress. Instead, we have lost precious time to provocative and controversial nominations like that of Duncan Getchell and Claude Allen of Virginia. Those nominations were both withdrawn by the President after months of wasted time and effort. I, again, encourage the White House to work with Senators Warner and Webb of Virginia to send us consensus nominees for the two Virginia vacancies on the Fourth Circuit. The Getchell nomination is an example of the President's failure to work with home State Senators to make consensus nominations. President Bush nominated Duncan Getchell to one of Virginia's Fourth Circuit vacancies over the objections of Senator Warner and Senator Webb. They had submitted a list of five recommended nominations, and specifically warned the White House not to nominate Mr. Getchell. As a result, this nomination, which was opposed by home state Senators from the start, was one that could not move. The Republican complaints about nominations ring hollow in light of the actual progress we have made. Despite the efforts of the Bush administration to pack the Federal courts and tilt them sharply to the right, the Judiciary Committee and the Senate have worked to approve an overwhelming majority of President Bush's nominations for lifetime appointments to the Federal bench. We have confirmed over 86 percent of President Bush's judicial nominations, compared to less than 75 percent for President Clinton's nominations. The difference is even more stark when examining nominations to influential circuit courts, to which nearly three quarters of President Bush's nominations have been confirmed, compared to just over half of President Clinton's. That means nearly half of President Clinton's circuit nominations were not confirmed, many of them pocket filibustered with anonymous objections, no hearings, and no consideration. If we stopped now and did not consider another judicial nominee all year, we would better the record Republicans established with President Clinton. We confirmed 40 judicial nominees last year, including six nominees to the circuit courts. That total was more than were confirmed during any of the three preceding years under Republican leadership and more than were confirmed in 1996, 1997, 1999, and 2000, when a Republican- led Senate was considering President Clinton's nominations. Indeed, in three years that I have chaired the committee, the Senate has confirmed 140 of President Bush's lifetime appointments to our Federal courts. That compares favorably to the total of 158 confirmations during the more than 4 years that Republicans led the committee during this Presidency. If we stopped now and did not consider another judicial nominee, we would compare favorably to how Republicans have treated this President's nominees, and we have already improved upon how they treated President Clinton's nominees. If the White House and the Senate Republicans were serious about filling vacancies and not just seeking to score partisan political points, the President would not make nominations opposed by home State Senators of both parties. If they were serious about filling vacancies, Republicans would not spend the rest of the Bush Presidency fighting over a handful of controversial nominations rather than work with us to make progress. If they were serious about filling vacancies, Republicans on the committee would attend important business meetings and help us make a quorum to report these nominations to the Senate. I am surprised that today the ranking member has suggested that judicial nominations were ``stymied'' when I first became chairman of the Judiciary Committee under this President in 2001. Indeed, during those 17 months, the Senate confirmed 100 judicial nominations. That pace was never duplicated under either of the Republican chairmen that followed me. During the 2 years under Senator Specter's chairmanship, the Senate approved 54 confirmations. I am surprised that the ranking member is suggesting the Senate bypass the committee's process for considering nominations, and is apparently calling for an end to the role of home State Senators. When he was chairman of the Judiciary Committee, Senator Specter respected the blue slip, which is the means by which home State Senators approve or disapprove of a nomination before consideration of the nomination proceeds. When he was chairman, he proceeded with hearings on nominations that were controversial and were subsequently withdrawn. That took time away from those nominations on which we might have been able to make progress together. Requiring the support of home State Senators is a traditional mechanism to encourage the White House to engage in meaningful consultation with the Senate. Many of this President's current nominees do not have the support of the home State Senators. That is why his nomination of Duncan Getchell was finally withdrawn. That is why the nomination of Gene Pratter to the Third Circuit has not been considered. That is also the current situation for both nominees to the Third Circuit, the two current nominees to the Sixth Circuit, a nominee to the Fourth Circuit and the nominee to the First Circuit. Of the 11 circuit court nominations that have been pending before the Senate this year, 8 have not had the support of home State Senators. Indeed, more than half of the 28 nominations listed by Senator Specter in his recent letter to me do not currently have blue slips signaling support from home State Senators. He knows that. That information is public. This process was abused when the Republican-controlled Senate pocket- filibustered President Clinton's nominees with anonymous holds and no public opposition. One of my first acts when I became chairman in 2001, with a Democratic-led Senate considering President Bush's nominees, was to open up the nominations process for the first time, making blue slips public for the first time. We have drawn open the curtains on the process. Republicans, during the Clinton administration, cloaked it in secrecy and, to this day, will not explain their actions. I have not treated this President's nominees in that way. We have considered nominations openly and on the record. We have considered nominations I do not support, something that was never done by a Republican chairman. Much of the problem remains with this President and his insistence on nominating controversial nominees. I extended another olive branch to him by my letter last November. I have received no response. I had consulted with the senior Senator from Pennsylvania, and we had earlier exchanged letters. He knows from my January 22 letter what the situation is. As a former chairman he knows. He knows the history of the Thurmond Rule, by which Republicans, then in the minority, insisted that judicial vacancies in the last year of a President's term remain vacant in order to be filled with the nominations of the next President. He understands the dynamics in the last year of a President's term. And no modern President has been as divisive as this President on these issues. The Republican chairman serving during the end of President Clinton's term noted many times that judicial confirmations slow in a President's last year. I do not intend to return more than 60 nominations to this White House without action, or return 17 circuit court nominations without action. But much depends on the cooperation of the President and Senate Republicans. It is hard to consider partisan complaints about the pace of judicial nominations when those same voices criticize me for holding hearings on judicial nominations. Damned if I do and damned if I don't. Indeed, when I went out of my way to hold a hearing for judicial nominations during the last recess period, I was roundly criticized by Republicans. It reminded me of the time in 2001 when I previously chaired a recess hearing for another circuit court nominee of this President and I was criticized by a Republican Senator for proceeding expeditiously. It only goes to prove the truth of the saying that around here, when it comes to judicial nominations, no good deed goes unpunished. The record is that during the 1996 session, the last of President Clinton's first term, the Republican-led Senate confirmed not a single circuit nomination. If we are able to proceed and confirm just one circuit nominee this year, we will better that record. Republicans returned 17 circuit nominations to President Clinton without action at the end of his presidency. The treatment of President Clinton's nominees contrasted markedly with that accorded by Democrats to the nominations of Presidents Reagan and Bush in the Presidential election years of 1988 and 1992, when nine circuit court nominees were confirmed on average. Regrettably, the Republican Senate reversed that course in its treatment of President Clinton's circuit court nominations, confirming none during the 1996 session and an average of only four in Presidential election years. The Republican Senate chose to stall consideration of circuit nominees and maintain vacancies during the Clinton administration. In those years, Senator Hatch justified the slow progress by pointing to the judicial vacancy rate. When the vacancy rate stood at 7.2 percent, Senator Hatch declared that ``there is and has been no judicial vacancy crisis'' and that this was a ``rather low percentage of vacancies that shows the judiciary is not suffering from an overwhelming number of vacancies.'' Because of Republican inaction, the vacancy rate continued to rise, reaching nearly 10 percent at the end of President Clinton's term, including 26 circuit vacancies. By contrast, we have helped cut circuit court vacancies across the country in half, reducing the number to 13 in 2007. In fact, circuit court vacancies reached a high water mark of 32 early in President Bush's first term, with a number of retirements by Republican-appointed judges. Indeed, the current judicial vacancy rate is around 5 percent. That is half of what it was at the end of President Clinton's term, and significantly lower than when Senator Hatch described the vacancy rate as acceptably low. If we applied Senator Hatch's standard, we would have no more hearings or consideration of any of the remaining nominations. Because of the success of the Republicans at stacking the courts and their success in preventing votes on nominees, the current situation on the circuit courts is that more than 60 percent of active judges were appointed by Republican presidents and more than 35 percent were appointed by this President. If we did not act on another nominee, Republican presidents' influence over the circuit courts is already out of balance. I would rather see us work with the President on the selection of nominees that the Senate can proceed to confirm than waste precious time fighting about controversial nominees. That is why I have urged the White House to work with Senators Warner and Webb to send to the Senate without delay nominees to the Virginia vacancies on the Fourth Circuit. That is why I have urged the White House to work with all Senators from States with vacancies on the Federal bench. We may still be able to make progress, but only with the full cooperation of this President, and Republican Members of this Senate.

Mr. LEAHY

Mr. LEAHY. Madam President, in April 2004, when American consumers were paying $1.78 per gallon at the pump, I warned that energy experts were ``predicting that the price of gas may rise to $2.50 or $3.00 per gallon.'' The administration did nothing. Last October, when American consumers were paying $2.87 per gallon at the pump, I warned that ``oil may be on its way to over $100 a barrel.'' The administration did nothing. This week, oil reached a record $102 a barrel, and gas prices averaged $3.13 a gallon. How much will families in Vermont and across America have to pay to heat their homes in this long winter and drive to work before the President takes action? At a news conference yesterday, the President was not even aware that some are predicting that gas prices will hit $3.50 or even $4 a gallon by the spring. Two facts are painfully clear: Gasoline prices have more than doubled since the President took office, and the President has no plan to protect consumers and our economy. I have said this before, and I say it again today: The principal cause of the relentless increase in oil prices is not a natural supply issue, but market manipulation by the Organization of Petroleum Exporting Countries, OPEC, an international cartel that limits the supply of oil to keep fuel prices high. In January, the President's best attempt to increase the supply of oil was to tell Saudi King Abdullah that ``paying more for gasoline hurts some American families.'' Indeed it does, and I am pleased the administration acknowledges the effects of rising gas prices on Americans. But Saudi Arabia is a founding member of OPEC, which has every incentive to limit output and keep prices artificially high. The futility of going to an OPEC member and pleading for it to raise output is obvious; the President's request that it increase supply is simply bewildering. OPEC is scheduled to meet next week to consider output levels. If such a meeting took place in almost any other context, the participants would likely be arrested for an illegal conspiracy in restraint of trade. Yet the President stood in front of the King of the largest participant in the oil cartel and asked for relief, instead of demanding an end to this illegal activity. If the administration truly acknowledges the impact artificially high oil prices have on our Nation, it should join with me, Senator Kohl, and the 68 other Senators and 345 Members of the House of Representatives who have voted for NOPEC legislation, which would hold accountable certain oil-producing nations for their collusive behavior that has artificially reduced the supply and inflated the price of fuel. Instead of pleading for help, the next time the President of the United States meets with members of a cartel, the President should explain that entities engaging in anticompetitive conduct that harms American consumers can expect investigation and prosecution. We cannot claim to be energy independent while we permit foreign governments to manipulate oil prices in an anticompetitive manner. It is wrong to let members of OPEC off the hook just because their anticompetitive practices come with the seal of approval of national governments.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I hope we pass a bipartisan bill that will go a long way in reducing the costs of litigating disputes in our civil justice system. This bill creates a new Federal Rule of Evidence regarding electronic disclosure of privileged material that would limit the consequences of inadvertent disclosure. The new rule would provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of e-mail and other electronic media. This legislation contains the full text of Judicial Conference recommendations and is supported by all sectors of the legal community. I ask unanimous consent to have printed in the Record the Judicial Conference's Committee Note to illuminate the purpose of the new Federal Rule of Evidence and how it should be applied.

Mr. LEAHY. Mr. President, I thank Senator Specter for joining me in introducing this bill last December, as the first session of this Congress drew to a close. The Judiciary Committee took up and unanimously approved the bill during our first business meeting after returning from the holiday recess. I urge all Senators to join Senator Specter and me to pass this proposal and take a positive step toward modernizing and improving the Federal Rules of Evidence.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senate once again is debating a bill by Senator Feingold, Senator Reid, myself, and others to change course in Iraq. And once again, I urge the Senate to act. This is a war started under false pretenses, waged with incompetent political policymaking that disserved the bravery and sacrifice of our fighting men and women. This is a war that now slogs on--week after week, year after year--with nothing but a ``pause'' on the horizon, and still no end in sight. The toll of American casualties rolls on, and so does the drain on the Nation's resources, heading inexorably past the hundreds of billions of dollars toward an unfathomable trillion dollars. The war has sapped our credibility, strained our alliances, and complicated our security challenges. Meanwhile, Osama bin Laden remains at large and al-Qaida has been given the opportunity to regenerate. The northwestern frontier between Pakistan and Afghanistan is a lawless extremist haven. A redeployment of American forces along the lines of the Feingold- Reid measure would force the Iraqis to realize that our presence is finite. If they want to step away from the abyss, it will take real reconciliation and the will to get it done. The Bush administration's failed policy in Iraq has stretched our military to the breaking point, diluted and diverted our efforts to counter al-Qaida and its affiliates in Afghanistan and elsewhere, and roiled the Middle East with instability. The sooner we change course the sooner we can implement a sound, sensible, and sustainable policy that truly advances our security interests.

Mr. LEAHY

Mr. LEAHY. Mr. Presdient, since my last statement on the need for prompt congressional action to address incidents involving threatening conduct and, too often, deadly acts of violence at our schools and college campuses nationwide, the violent incidents have continued, with tragic results. In the week between February 8 and February 15, there were at least four incidents at schools and universities resulting in death or serious injury to victims of all ages. On February 8, a female student killed two other students, and then herself, inside a classroom on the campus of Louisiana Technical College in Baton Rouge. Three days later, a student at Mitchell High School in Memphis, TN, was left in critical condition after a violent incident in the school's cafeteria. The day after that, a 15-year-old boy at E.O. Green Junior High in Oxnard, CA, was critically wounded by a classmate. He was later declared brain dead. Then, on February 14, tragedy struck at Northern Illinois University. A former student opened fire in a geology class, killing 5 students and wounding 16, before killing himself. As hundreds of mourners remembered one of the Northern Illinois University victims at a funeral service on February 19, more than 1,000 Virginia Tech students gathered in solidarity for a candlelight vigil in Blacksburg, VA. It has been over 10 months since the horrific incident at Virginia Tech resulted in the tragic deaths of 32 students and faculty members, and serious injuries to many other innocent victims. During that time, we have seen a barrage of new incidents at our schools and college campuses nationwide. The Judiciary Committee reported out the School Safety and Law Enforcement Improvement Act of 2007, S. 2084, more than 6 months ago to address these incidents. Regrettably, the Senate has failed to take up and pass that bill to improve school safety. This comprehensive legislation should be considered and passed without further delay. In originating the bill more than 6 months ago, the Judiciary Committee showed deference to Governor Tim Kaine and the task forces at work in Virginia, and sought to complement their work and recommendations. Working with several Senators, including Senators Boxer, Reed, Specter, Feingold, Schumer, and Durbin, the committee originated this bill and reported it at the start of the 2007 academic year. My hope was that Congress would adopt these critical school safety improvements last fall. The recent incidents at E.O. Green Junior High, Mitchell High School, LA, Technical College and Northern Illinois University are just a few of the tragic events that have claimed the lives or resulted in serious injuries to students in the past few months. Since this bill was reported out of the Judiciary Committee, we have seen tragic deaths at Delaware State University and the University of Memphis, and grievous injuries sustained by students and teachers at SuccessTech Academy in Cleveland, OH. We have also seen numerous lockdowns nationwide as a result of threatening conduct in our schools, including recent lockdowns at Fern Creek High School in Louisville, KY, and St. Peter's College in Jersey City, NJ. The School Safety and Law Enforcement Improvement Act would address the problem of violence in our schools in several ways. The bill authorizes Federal assistance for programs to improve the safety and security of our schools and institutions of higher education, provides equitable benefits to law enforcement serving those institutions including bulletproof vests, and funds pilot programs to develop cutting-edge prevention and intervention programs for our schools. The bill also clarifies and strengthens two existing statutes--the Terrorist Hoax Improvements Act and the Law Enforcement Officers Safety Act--which are designed to improve public safety. Specifically, the bill would improve the safety and security of students both at the elementary and secondary school level and on college and university campuses. The K-12 improvements are drawn from a bill that Senator Boxer introduced last April, and I want to thank Senator Boxer for her hard work on this issue. The improvements include increased funding for much-needed infrastructure changes to improve security as well as the establishment of hotlines and tip-lines, which will enable students to report potentially dangerous situations to school administrators before they occur. To address the new realities of campus safety in the wake of Virginia Tech and more recent college incidents, the bill also creates a matching grant program for campus safety and security to be administered out of the COPS Office of the Department of Justice. The grant program would allow institutions of higher education to apply, for the first time, directly for Federal funds to make school safety and security improvements. The program is authorized to be appropriated at $50,000,000 for the next 2 fiscal years. While this amounts to just three dollars per student each year, it will enable schools to more effectively respond to dangerous situations on campus. The bill would also make sworn law enforcement officers who work for private institutions of higher education and rail carriers eligible for death and disability benefits, and for funds administered under the Byrne grant program and the bulletproof vest partnership grant program. Providing this equitable treatment is in the best interest of our Nation's educators and students, and will serve to place the support of the Federal Government behind the dedicated law enforcement officers who serve and protect private colleges and universities nationwide. I commend Senator Jack Reed for his leadership in this area. The bill helps law enforcement by making improvements to the Law Enforcement Officers Safety Act of 2003, LEOSA. These amendments to existing law will streamline the system by which qualified retired and active officers can be certified under LEOSA. It serves us all when we permit qualified officers, with a demonstrated commitment to law enforcement and no adverse employment history, to protect themselves, their families, and their fellow citizens wherever those officers may be. The bill focuses on prevention as well, by incorporating the PRECAUTION Act at the request of Senators Feingold and Specter. This provision authorizes grants to develop prevention and intervention programs for our schools. Finally, the bill incorporates the Terrorist Hoax Improvements Act of 2007, at the request of Senator Kennedy. The Senate should move forward and act. The Virginia Tech Review Panel--a body commissioned by Governor Kaine to study the Virginia Tech tragedy--has already issued its findings based on a 4-month long investigation of the incident and its aftermath. This bill would adopt a number of recommendations from the review panel aimed at improving school safety. We must not miss this opportunity to implement these initiatives nationwide, and to take concrete steps to ensure the safety of our kids. I hope the Senate will promptly move forward to invest in the safety of our students and better support law enforcement officers across the country by considering and passing the School Safety and Law Enforcement Improvement Act of 2007.

Mr. LEAHY

Mr. LEAHY. Will the Senator yield for a question?

Mr. LEAHY. Will the Senator yield for a question?

Mr. LEAHY. Mr. President, will the distinguished majority leader yield for a question from me?

Mr. LEAHY. Thank you, Mr. President.

Mr. LEAHY. Mr. President, I tried to get the distinguished Republican leader to yield, but he was unwilling. Let me ask the distinguished majority leader, is it not a fact that these public, spirited telephone company owners are threatening to turn off wiretaps, according to the press accounts, that have been legally ordered through search warrants because the U.S. Government has failed to pay them millions of dollars, and does not pay them the millions of dollars? I just wonder if any of the legislation we are talking about might be mandating our own Government to pay the bills for the wiretaps. I ask that only because it seems this public spiritedness goes one way if they want to be immunized or the administration wants to be immunized from anybody asking them questions, but it goes a different way if it comes down to the question of getting paid.

Mr. LEAHY

Mr. LEAHY. Mr. President, with the enactment of bipartisan Freedom of Information Act, FOIA, reform legislation late last year, Congress demanded and won more openness and accountability in monitoring the activities of our Government. But, regrettably, just weeks after this historic open government legislation was signed into law, there are troubling signs from the Bush administration regarding how this law will be enforced. Last week, the President buried a provision in the administration's fiscal year 2009 budget proposal that would move the functions of the new Office of Government Information Services, OGIS, which was created under the OPEN Government Act, from the independent National Archives and Records Administration to the Department of Justice. The President's proposal is not only contrary to the express intent of the Congress, but contrary to the very purpose of this legislation--to ensure the timely and fair resolution of American's FOIA requests. The Office of Government Information Services was established to, among other things, mediate FOIA disputes between Federal agencies and FOIA requestors, review and evaluate agency FOIA compliance and house the newly established FOIA ombudsman. When Senator Cornyn and I drafted the OPEN Government Act, we intentionally placed this critical office in the National Archives, so that OGIS would be free from the influence of the Federal agency that litigates FOIA disputes--the Department of Justice. We also placed OGIS in the apolitical National Archives to enhance this office's independence, so that all Americans can be confident that their FOIA requests would be addressed openly and fairly. Given the clear intent of Congress to establish OGIS as an independent office in the National Archives, the President's budget proposal should not--and cannot--go unchallenged. What's more, given the Justice Department's own abysmal record on FOIA compliance--a recent Bureau of National Affairs Daily Report for Executives article found that the Justice Department's Office of Information Policy is burdened by increasing FOIA backlogs--it is simply unfathomable that this agency would be entrusted with overseeing the processing of American's FOIA requests. When the Congress unanimously passed the OPEN Government Act just a couple months ago, Democrats and Republicans alike joined together in promising the American people a more open and transparent government. I intend to work to ensure that that this was not an empty promise, but one that will be honored and fulfilled. I call on all Members of Congress, on both sides of the aisle and in both Chambers, to join with me to ensure that the Office of Government Information Services is promptly established and fully funded within the National Archives. The American people have waited for more than a decade for this office and for the other historic FOIA reforms contained in the OPEN Government Act. They should not be forced to wait any longer. Mr. President, I ask unanimous consent that a copy of a letter from a coalition of more than 40 different open government organizations that strongly oppose moving the Office of Government Information Services to the Department of Justice be printed in the Record. Congress must work to beat back the administration's ill-advised attempts to undermine the intent of Congress in a bill that this President signed into law. In the coming weeks and months, I will be working with other advocates of FOIA in the Senate to do just that.