Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Over the course of early January, I invite you and our colleagues to work with me to find viable solutions. It is my intention to seek and hear the views of any and all parties and to include all interested staff and Senators. This will continue to be an open and deliberative process, with the goal of favorable Senate action as early as the floor schedule permits. I am committed to a strong and effective balanced bill. I know there are some out there who would rather see us do nothing and leave the systems now in place or merely codify current jurisprudence. I believe that following this course would be shirking our responsibility to ensuring the economic strength of our country that is built on inventiveness.

Mr. LEAHY. I agree with my distinguished colleague that now is the time to enact patent reform, and we are in good company in that belief. Our leadership has committed to taking up S. 1145 as early in the new year as possible, and we commend that commitment. I fully recognize that when the bill was reported by the Judiciary Committee, a number of members expressed a strong view that the bill should be further perfected before it comes to a vote on the floor of the Senate. I made a commitment to the members of the Judiciary Committee at the markup that I would work closely with each of them, and other Members of the Senate, to make further improvements in the bill. I reaffirm that commitment.

Mr. LEAHY. First, I want to express my appreciation for my colleague's efforts in working to ensure that our patent laws are modernized. We first cosponsored patent reform last Congress. We again jointly introduced comprehensive patent reform this Congress in the form of S. 1145 in April of this year. Both bills had their foundations in numerous hearings with the testimony of dozens of witnesses and in innumerable meetings with the myriad of interested participants in the patent system. The message we heard repeatedly was of the urgent need to modernize our patent laws. The leaders of the House Judiciary Committee also heeded that call to legislate, and working with them, we introduced identical, bipartisan bills. H.R. 1908 was introduced the very same day that we introduced the Senate bill. In July, after several extensive and substantive markup sessions, the Senate Judiciary Committee reported S. 1145 favorably and on a clear and strong bipartisan vote. In the course of our committee deliberations, a great many changes were made to improve and perfect the bill. These improvements included changes on the key issues of enhancing patent quality, clarifying rules on infringement and compensation of inventors, and improving the ability of the Patent and Trademark Office to do its job well.

Mr. LEAHY. Mr. President, I would like to take a moment, along with the distinguished Senator from Utah, a longstanding member of the Judiciary Committee and a consistent partner of mine on intellectual property issues, to discuss S. 1145, the Patent Reform Act of 2007.

Mr. LEAHY. As you and I have discussed, successful enactment of patent reform requires the input of all Senators. Over the past months, since the committee reported the bill, I have had numerous meetings with both members and affected interests. I know you have too. My staff has had literally hundreds of meetings and discussions about this legislation. In the course of those meetings, it has become clear to me that several issues are on the minds of most people: ensuring compensation for infringement is fair and adequate; clarifying rules on venue; and improving the ability of parties to challenge the validity of granted patents through administrative processes.

Mr. LEAHY

Mr. LEAHY. Mr. President, I thank the Senator. Mr. President, I strongly oppose the blanket grant of retroactive immunity in the Senate Intelligence Committee's bill to amend the Foreign Intelligence Surveillance Act. This administration violated FISA by conducting warrantless surveillance of Americans for more than 5 years. They got caught. If they had not gotten caught, they probably would still be doing it. When the public found out about the President's illegal surveillance of Americans, this administration, and the telephone companies who may have assisted them, were sued by citizens who believed their privacy rights were violated. Now, this administration is trying to convince Congress to terminate those lawsuits, in order to avoid accountability. We should not allow that to happen. The administration knows that these lawsuits may be the only way that it will ever be called to account for its illegal program of warrantless surveillance and its flagrant disrespect for the rule of law. In running its program of warrantless surveillance this administration relied on legal opinions, prepared in secret by a very small group of like-minded officials, who crafted those opinions to fit the administration's agenda. Jack Goldsmith, who came in briefly to head the Justice Department's Office of Legal Counsel, described the program as a ``legal mess.'' The administration does not want a court to get a chance to look at that mess, and retroactive immunity would ensure that there is no court scrutiny of their actions. Senator Rockefeller and I have been consulting since this summer to find ways to obtain access to the information our members need to evaluate the administration's arguments for immunity. The administration has consistently refused to provide this information to the Judiciary Committee. In fact, in light of the administration's stonewalling, Chairman Specter was prepared to subpoena this information from the telephone companies during the last Congress. Finally, we obtained access, not only for the chairman and ranking member, but for members of the Judiciary Committee. However, I believe all Senators should have access to this information, as well as those staff with the appropriate clearance. Instead of conducting warrantless surveillance in violation of FISA, trying to cover it up, and then trying to justify the coverup, this administration should have come to Congress immediately and asked for the authority it is now claiming it needs. I have drawn a different conclusion than Senator Rockefeller about retroactive immunity. I oppose granting blanket retroactive immunity. I agree with Senator Specter and many others that blanket retroactive immunity, which would end ongoing lawsuits by legislative fiat, undermines accountability. Immunity against future litigation is not the issue; the issue is retroactive immunity. If they followed the law, and FISA was not violated, the telephone companies would automatically have immunity and there would be no need for Congress to now duplicate that immunity. I also would note that title I of the FISA law was changed during markup in the Senate Judiciary Committee. When we come back to this bill next year, it will be my intent to bring much of what we did in the Judiciary Committee before the Senate for a vote. Again, I want our intelligence agencies to be able to intercept the communications of those people overseas who are trying to do harm to the United States. We all agree with that. But I want to make sure that Americans' communications cannot be acquired by the executive for just any reason. If the Government is going to listen to the communications of Americans it must abide by the legal system that has served us so well throughout the history of this country: court determination of the legality of surveillance before it begins, and court oversight throughout the process. We hear from the administration and some of our colleagues that we must grant immunity or the telephone companies will no longer cooperate with the Government. Senators should understand that if we do not grant retroactive immunity, telecommunications carriers will still have immunity for actions they take in the future. If they follow the law, they have immunity. Instead, I will continue to work with Senator Specter, as well as with Senators Feinstein and Whitehouse to try to craft a more effective alternative to retroactive immunity. We are working with the legal concept of substitution to place the Government in the shoes of the private defendants that acted at its behest, and to let it assume full responsibility for any illegal conduct. I believe that requires reaching agreement that the lawsuits should be able to reach the merits rather than be short-circuited by Congress, and that the program be subject to judicial review so that its legality can be determined. Again, this administration violated FISA by conducting warrantless surveillance for more than 5-years. They got caught and they got sued. The administration's insistence that those lawsuits be terminated by congressional action is designed to insulate itself from accountability. Retroactive immunity would do more than let the carriers off the hook. It would shield this administration from any accountability for conducting surveillance outside the law. It would leave the lawsuits that are now working their way through the courts dead in their tracks and leave Americans whose privacy has been violated no chance to be made whole. These lawsuits are perhaps the only avenue that exists for an outside review of the Government's actions. That kind of assessment is critical if our Government is to be held accountable. That is why I do not support legislation to terminate these legal challenges and I will vote to strike it.

Mr. LEAHY

Mr. LEAHY. Madam President, let me note--it has probably been noted here on the floor already--that it is so much nicer to hear your eulogy in person than afterward. In many ways you know it is more heartfelt because the Senator from Mississippi is here and has the ability to correct it, something he would not have 40 years or so from now when he might rejoin his Maker. I think, though, about Trent Lott. Trent is one of those Senators who has great respect on both sides of the aisle. I think it is because he is from the old school. I do not want to damage his reputation in Mississippi to have one of the more liberal members of the opposite party praise him, but I do it easily. Because, as I told Trent within an hour after he made his announcement--we were on the phone, and I told him that one of the things I liked about him is he followed that rule Mike Mansfield told me my first week here in the Senate: Senators should always keep their word. Every time Senator Lott and I have worked together, to find our way, sometimes through a very tangled parliamentary or legislative morass, we got through because I could always count on him once he made a commitment to keep his word and he would keep his commitment. I think he knows I did the same with him. As Senator Mansfield tried to instruct all of us, those of us who were here at that time, this is the mark of what a real Senator should do. Because while you may disagree on one issue, you are going to be allies the next day on a different issue. And that is what makes the Senate work best. Marcelle and I have had the opportunity to travel with Trent and Trish, and I must admit this is a great deal of fun. I think he even has some of the photographs I have given him from some of those trips. As they have told me in Vermont, on occasions when he came up, a number of Vermonters came up to me afterward and said, ``Boy, the Senator from Mississippi is really good looking.'' I said: ``Well, yes, he is.'' ``He has got all of that hair.'' I said, ``Yes, he does.'' And they said, ``He can really sing well.'' And I said, ``I do not need to talk with you anymore.'' They would go on. Those trips--and I will close with this--one of the reasons why more of us should take such trips, bipartisan trips, is you find that you have so many things in common. Trish and Marcelle would talk about children and their hopes for them growing up. All four of us would talk about the difficulties in maintaining homes in our home State and in Washington, and doing it if you are not wealthy. We would talk about those things where we felt the Senate should come together. We talked about our backgrounds, our faith, our hopes for this country. I think somebody listening in would have been hard pressed to know which one was the Democrat and which one was the Republican. I have served all these years with Trent Lott. I will miss him as a colleague, but I might say I will miss him especially as a friend.

Mr. LEAHY

Mr. LEAHY. Mr. President, I thank the distinguished chairman. I agree with what the Senator from Vermont has just said. In our State, cold weather is not a rarity, it is a fact of life, especially this time of the year. The thermometer on my front steps goes down to 20 below zero. Many times there is no mercury showing because it has gone below that. Now, that is not theoretical cold, that is cold you die from. I know what it has cost us in filling the tank for my own furnace this year, and I wonder how many people who are not privileged to have the kind of salaries all of us do, how they possibly do it. It is not a matter of just help; this is a matter of life or death. It is not a matter of just comfort. We are not talking about the weather being in the fifties and perhaps you can just put on more sweaters or more coats; we are talking about it being 5 or 10 and 15 and 20 degrees below zero, or even today in Burlington, VT, it began at zero. The temperature was at zero, and then it warmed up from last night. In those situations you die if you don't have heat. It is not a question of being comfortable; you die. It is as simple as that. You die. There are a lot of people who cannot afford this. I will work with the distinguished Senator from Vermont, as I have with my colleagues on both sides of the aisle, in trying to get more money after this bill is passed for LIHEAP. I know the distinguished Senator from West Virginia has supported us every single time on LIHEAP. He also knows what it is like in those rural areas of West Virginia where people barely eke out a living and what happens to them when the snow is falling and it is cold outside and the children are crying because they are cold and the parents are doing everything possible to keep them warm. We will work on this. I thank the Senator from West Virginia for yielding me the time.

Mr. LEAHY

Mr. LEAHY. Mr. President, I will hopefully not even need the full hour, and we will be able to go ahead and have the cloture vote. I believe Senator Gregg is going to be managing on the Republican side once he gets here. Hopefully, it will be possible to just yield back all of our time before the end of the hour and go to a vote. I will yield in just about 3 minutes to Senator Murray from Washington State for 10 minutes.

Mr. LEAHY. Mr. President, the time has been equally divided, and I ask unanimous consent that the Senator from Idaho, when recognized, be able to take 5 minutes from the time set aside on the Republican side.

Mr. LEAHY. Mr. President, I am pleased that the Congress will send the Openness Promotes Effectiveness in our National Government Act--the ``OPEN Government Act--S. 2488, to the President for signature before the end of this year. With House passage of this bill today, and the Senate's passage of it last Friday, this historic, bipartisan, bicameral legislation becomes the first major reform to the Freedom of Information Act, FOIA, in more than a decade. The American people will have a new law honoring the public's right to know under the tree this holiday season. I commend House Government Reform and Oversight Committee Chairman Henry Waxman for moving quickly to enact this bill, and for his leadership of the successful effort to pass FOIA reform legislation in the House of Representatives. I thank him and his staff, including Anna Latin, Michelle Ash and Phil Schiliro, for all of their hard work on this legislation. I also commend Representative William ``Lacy'' Clay, Jr., for sponsoring this legislation in the House. I also thank the members of my staff who worked on this bill--Lydia Griggsby, Lauren Brackett, Erica Chabot, Bruce Cohen and Leila George- Wheeler--for all of their hard work on this bill. I also commend the bill's chief Republican cosponsor in the Senate, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year. I am also appreciative of the efforts of Senator Jon Kyl for cosponsoring this bill and helping us to reach a compromise on this legislation this year. I also thank the more than 115 business, news media and public interest organizations that have endorsed this legislation. As the first major reform to FOIA in more than a decade, the OPEN Government Act will help to reverse the troubling trends of excessive delays and lax FOIA compliance in our government and help to restore the public's trust in their government. This legislation will also improve transparency in the Federal Government's FOIA process by: restoring meaningful deadlines for agency action under FOIA; imposing real consequences on Federal agencies for missing FOIA's 20-day statutory deadline; clarifying that FOIA applies to government records held by outside private contractors; establishing a FOIA hotline service for all Federal agencies; and creating a FOIA Ombudsman to provide FOIA requestors and Federal agencies with a meaningful alternative to costly litigation. The OPEN Government Act will protect the public's right to know, by ensuring that anyone who gathers information to inform the public, including freelance journalists and bloggers, may seek a fee waiver when they request information under FOIA. The bill ensures that Federal agencies will not automatically exclude Internet blogs and other Web-based forms of media when deciding whether to waive FOIA fees. In addition, the bill also clarifies that the definition of news media, for purposes of FOIA fee waivers, includes free newspapers and individuals performing a media function who do not necessarily have a prior history of publication. The bill also restores meaningful deadlines for agency action, by ensuring that the 20-day statutory clock under FOIA starts when a request is received by the appropriate component of the agency and requiring that agency FOIA offices get FOIA requests to the appropriate agency component within 10 days of the receipt of such requests. The bill also clarifies that the Supreme Court's decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, which eliminated the ``catalyst theory'' for attorneys' fees recovery under certain Federal civil rights laws, does not apply to FOIA cases. Furthermore, to address concerns about the growing costs of FOIA litigation, the bill also creates an Office of Government Information Services in the National Archives and creates an ombudsman to mediate agency-level FOIA disputes. In addition, the bill ensures that each Federal agency appoints a Chief FOIA Officer to monitor the agency's compliance with FOIA requests, and a FOIA Public Liaison who will be available to resolve FOIA related disputes. And, the bill creates a better tracking system for FOIA requests to assist members of the public and clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. Finally, this bill contains a number of key improvements championed by Chairman Waxman. The bill includes ``pay/go'' language that will ensure that attorneys' fees that are awarded in FOIA litigation are paid for with annually appropriated agency funds. The bill also eliminates a provision on citations to FOIA (b)(3) exemptions contained in the earlier Senate bill. In addition, the bill includes a new provision that requires Federal agencies to disclose the FOIA exemptions that they rely upon when redacting information from documents released under FOIA. And the bill adds FOIA duplication fees for non-commercial requestors, including the media, to the fee waiver penalty that will be imposed when an agency fails to meet the 20-day statutory clock under FOIA. The enactment of FOIA reform legislation this year is an important milestone in the effort to restore openness and transparency to our government. By sending this meaningful FOIA reform bill to the President this year, the Congress also sends a powerful message to the American people that the era of excessive government secrecy has come to an end. While I am pleased that the reforms contained in the OPEN Government Act will ensure that FOIA is reinvigorated for future generations, my work to strengthen FOIA will not end with the enactment of this legislation. There is much more work to be done to ensure that we have a government that is open and accountable to all Americans. And I will continue to work with Senator Cornyn, Chairman Waxman and others to further strengthen this vital open government law. I urge the President to promptly sign this open government legislation into law at the earliest opportunity. So again, I am pleased today that the Congress is going to send the Openness Promotes Effectiveness in our National Government Act--also known as the OPEN Government Act--and for those who follow this issue, FOIA. They are going to send it to the President before the end of this year. With passage of this bill today in the House and the Senate's passage of it last Friday, this historic, bipartisan, bicameral legislation becomes the first major reform of the Freedom of Information Act in more than a decade. The American people are going to have a new law honoring the public's right to know, and they will have it during this holiday season. I commend the House Government Reform and Oversight Committee chairman, Henry Waxman, for moving quickly to enact this bill and for his leadership. I wish to thank him and his staff, including Anna Latin, Michelle Ash, and Phil Schiliro, for all of their hard work on the legislation. I commend also the chief Republican cosponsors in the Senate, Senator John Cornyn and Senator Jon Kyl, for joining me in this effort. The reason this legislation is so important is that throughout my whole career in the Senate, I have always supported the idea of the Freedom of Information Act. We all know no matter who is in the administration, whether it is a Democratic or a Republican administration, that when they do things they want us to know about, the press releases flow. When they make a mistake--and all administrations do--they would just as soon we not know about it, whether money has been wasted or whether a policy has not been followed. The Freedom of Information Act allows the American public-- and after all, the Government serves them--to find out, through individual private citizens, and through the press, what is happening in their government. It has saved billions of dollars over the years because of what they found out, but more importantly, it has kept our Government honest. I wrote the Electronic Freedom of Information Act which allowed us to use the Internet and electronic files for that purpose. But this month, the Open Government Act--the first major reform in more than a decade--is going to help reverse the troubling trends of excessive delays, the lax compliance with FOIA and will help restore public trust in our Government. It will improve transparency and restore meaningful deadlines for agency action under FOIA. It will also impose real consequences on Federal agencies who miss the 20-day statutory deadline. It will clarify that FOIA applies to Government records that are held by outside private contractors. The Open Government Act will establish a FOIA hotline service for all Federal agencies, and create a FOIA Ombudsman, which will provide a meaningful alternative to costly litigation. Chairman Waxman wanted pay-go language to ensure that attorney's fees that are awarded in FOIA litigation are paid for with annually appropriated agency funds, and that has been included in this bill. This is an important milestone. The Open Government Act contains reforms that ensure FOIA is reinvigorated for future generations. I don't intend to give up after this effort, of course. We will continue to work with our oversight. We will continue to pursue efforts on FOIA. But what we have said is that no matter who is the next President, they will have to run a Government that is more open than it has been in the past, and all 300 million Americans will have a better chance to know what happens in their Government. This is a great step forward for the access of a free press, and for an honest and open Government in this country. Mr. President, I yield such time as the Senator from Washington State may need of the time I have. I yield 10 minutes to the Senator from Washington State.

Mr. LEAHY

Mr. LEAHY. Mr. President, with this nomination, I note we have confirmed more in this session of the Senate--of President Bush's judges--than the total number of judicial nominations the Republicans confirmed in all of 1996, 1997, 1999, 2000, 2004, 2005, and 2006. I thought I would mention that. Mr. President, I ask for the yeas and nays.

Mr. LEAHY. Mr. President, we end the 2007 legislative session as we began it, by making significant progress confirming the President's nominations for lifetime appointments to the Federal bench. At the Judiciary Committee's first business meeting of the year, held less than 2 weeks after the Republican caucus agreed to the resolutions organizing the Senate, I included on our agenda five judicial nominations. On January 30, the Senate confirmed the first two judicial nominations of the session. Today's confirmation of John Daniel Tinder to the Court of Appeals for the Seventh Circuit will be the 40th, including 6 of this President's nominations to powerful circuit courts. I thank the members of the Judiciary Committee for their hard work all year in considering these important nominations. I thank especially those Senators who have given generously of their time to chair confirmation hearings throughout the year. Given the work of the Senators serving on the Judiciary Committee, we will have exceeded the yearly total in each of the last 3 years when a Republican majority managed the Senate and the consideration of this Republican President's nominations. Indeed, with the confirmation today of Judge Tinder to replace Judge Daniel A. Manion, like that of Reed O'Connor who was confirmed last month to the Northern District, we are proceeding to fill vacancies before they even arise. The progress we have made this year in considering and confirming judicial nominations is sometimes lost amid the partisan sniping over a handful of controversial nominations and attempts to appeal to some on the far right wing. When we confirm the nomination we consider today, the Senate will have confirmed 40 nominations for lifetime appointments to the Federal bench this session alone. That is more than the total number of judicial nominations that a Republican-led Senate confirmed in all of 1996, 1997, 1999, 2000, 2004, 2005 or 2006. It is 23 more confirmations than were achieved during the entire 1996 session, more than double that session's total of 17, when Republicans stalled consideration of President Clinton's nominations. It is seven more than the confirmations in the second to last year of President Clinton's final term. We continue to make progress on circuit court nominations. We began the year by resolving an unnecessary controversy over Judge Norman Randy Smith's nomination to one of California's seats on the Ninth Circuit. That nomination could easily have been confirmed--and a judicial emergency addressed--in the last Congress had the Bush administration chosen the commonsense approach of nominating Judge Smith, who is from Idaho, to Idaho's seat on the Ninth Circuit. After many months of urging by me and others, President Bush finally did the right thing at the beginning of this Congress by pulling the controversial Myers nomination to Idaho's Ninth Circuit seat and nominating Judge Smith, instead. He was confirmed in February. We could make even more progress if the President would make a California nomination to fill the long-vacant California Ninth Circuit seat left open by Judge Stephen Trott's retirement. We continued through the year to consider and confirm district and circuit court judges. In October, the Senate confirmed the nominations of Judges Jennifer Walker Elrod and Judge Leslie Southwick, who became the fourth and fifth circuit court nominees confirmed this year. After this confirmation today, the Senate will have confirmed six circuit court nominees, matching the total circuit court confirmations for all of 2001. We will also have exceeded the circuit court totals achieved in all of 2004 when a Republican-led Senate was considering this President's circuit nominees; all of 1989; all of 1983, when a Republican-led Senate was considering President Reagan's nominees; all of 1993 when a Democratic- led Senate was considering President Clinton's nominees; and, of course, the entire 1996 session during which a Republican-led Senate did not confirm a single one of President Clinton's circuit nominees the entire session. The treatment of President Clinton's nominees contrasts harshly with the treatment Democrats gave the circuit court nominees of Presidents Reagan and Bush in the Presidential election years of 1988 and 1992. In those two election years, the Democratic-controlled Senate averaged nine circuit court confirmations. Regrettably, the Republican Senate reversed that course in the treatment of President Clinton's circuit court nominations, confirming an average of only four in the Presidential election years of 1996 and 2000, and none in the entire 1996 session. At the end of the 106th Congress, the last 2 years of the Clinton administration, the Republican-led Senate returned to the President without action 17 of his appellate court nominees. I have not duplicated that record and I do not intend to, any more than I intend to see the Senate pocket filibuster more than 60 of President Bush's judicial nominees, as Republicans did with President Clinton's. It is a little known fact that during the Bush Presidency, more circuit judges, more district judges--more total judges--were confirmed in the first 24 months that I served as Judiciary chairman than during the 2-year tenures of either of the two Republican chairmen working with Republican Senate majorities. I continue to try to find ways to make progress. Last month, I sent the President a letter urging him to work with me, Senator Specter, and home State Senators to send us more well-qualified, consensus nominations. Now is the time for him to send us more nominations that could be considered and confirmed as his Presidency approaches its last year, before the Thurmond Rule kicks in. As I noted in that letter, I have been concerned that several recent nominations seem to be part of an effort to pick political fights rather than judges to fill vacancies. For example, President Bush nominated Duncan Getchell to one of Virginia's Fourth Circuit vacancies over the objections of Senators Warner and Webb, one a Republican and one a Democrat. 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 that is opposed by Democratic and Republican home-state Senators is one that cannot move. The Administrative Office of the U.S. Courts will list 43 judicial vacancies and 14 circuit court vacancies after today's confirmations. Compare that to the numbers at the end of the 109th Congress, when the total vacancies under a Republican controlled Judiciary Committee were 51 judicial vacancies and 15 circuit court vacancies. That means that despite the additional 5 vacancies that arose at the beginning of the 110th Congress, the current vacancy totals under my chairmanship of the Judiciary Committee are below where they were under a Republican led- Judiciary Committee. The President has sent us 27 nominations for these remaining vacancies. Sixteen of these vacancies--more than one third--have no nominee. Of the 17 vacancies deemed by the Administrative Office to be judicial emergencies, the President has yet to send us nominees for 7, nearly half of them. If the President would decide to work with the Senators from Michigan, Rhode Island, Maryland, California, New Jersey, and Virginia, we could be in position to make even more progress. Of the 16 vacancies without any nominee, the President has violated the timeline he set for himself at least 11 times--11 have been vacant without so much as a nominee for more than 180 days. The number of violations may in fact be much higher since the President said he would nominate within 180 days of receiving notice that there would be a vacancy or intended retirement rather than from the vacancy itself. We conservatively estimate that he also violated his own rule 15 times in connection with the nominations he has made. That would mean that with respect to the 43 vacancies, the President is out of compliance with his own rule more than half of the time. We have succeeded in dramatically lowering vacancies and, in particular, circuit court vacancies. We have helped cut the circuit vacancies from a high water mark of 32 in the early days of this administration to as low as 13 this year. Contrast that with the Republican-led Senate's lack of action on President Clinton's moderate and qualified nominees that resulted in increasing circuit vacancies during the Clinton years from 17 when he was inaugurated to 26 at the end of his term. During those years, the Republican-led Senate engaged in strenuous and successful efforts under the radar to keep circuit judgeships vacant in anticipation of a Republican President. More than 60 percent of current circuit court judges were appointed by Republican Presidents, with the current President having appointed more than 30 percent of the active circuit judges already. The American people expect the Federal courts to be fair forums where justice is dispensed without favor to the right or the left. I have set out since the beginning of this Congress to do all that I can to ensure that the Federal judiciary remains independent and able to provide justice to all Americans. These are the only lifetime appointments in our entire government, and they matter. I will continue in the 2008 session to work with Senators from both sides of the aisle as I have in the 2007 session. John Daniel Tinder has a decade of service as a District Court Judge for the Southern District of Indiana. Before his tenure on the bench, he worked for 7 years at the Justice Department as U.S. Attorney and Assistant U.S. Attorney for the Southern District of Indiana. He has worked in private practice and has experience as a county prosecutor and county public defender. His nomination has the support of both home State Senators. I acknowledge the support of Senators Lugar and Bayh, and want to thank Senator Durbin for chairing the hearing on this nomination. While I support Judge Tinder's confirmation, I am concerned about his answer to a question I sent him on the legal significance of Presidential signing statements. I asked Judge Tinder if an alleged violation of the law prohibiting cruel, inhuman, and degrading conduct by American personnel were to come before a court, would it be appropriate for that court to consider the President's signing statement as legislative history, in addition to the text of law itself. I am troubled by Judge Tinder's answer that he is open to looking at signing statements as a tool for determining the meaning of a statute. Throughout the country's history, Presidents used signing statements for limited purposes, such as explaining to the public the likely effects of legislation or providing direction to administrative agencies within the Executive Branch. It has long been considered out of bounds for any President to use signing statements--which are at most post-passage remarks--for the more expansive and controversial purpose of creating legislative history that our courts would be expected to follow. Legislative history is created within the Congress, which is charged by the Constitution with considering and passing laws. The President may veto legislation, but the constitutional system of checks and balances does not allow the President to speak for Congress. The Nation stands at a pivotal moment in history, where Americans are faced with a President who makes sweeping claims for almost unchecked Executive power. This President has used signing statements to challenge laws banning torture, laws on affirmative action, and laws that prohibit the censorship of scientific data. When the President uses signing statements to unilaterally rewrite laws enacted by Congress, he undermines the rule of law and our constitutional checks and balances. It is incumbent upon the Federal judiciary, to safeguard and protect the constitutional balance when necessary. I hope that Judge Tinder will fulfill his oath and be an independent buffer against constitutional overreaching. I congratulate the nominee and his family on his confirmation today.

Mr. LEAHY

Mr. LEAHY. Mr. President, I support the Feingold-Reid-Leahy Amendment because it specifically requires the President to begin the redeployment of American forces in Iraq within 90 days. Within 9 months of enactment, the redeployment would be completed and funding terminated for Iraq operations with narrow exceptions for a limited number of counterterrorism, force protection, and troop training missions. The President's so-called ``surge'' is just another word for escalation. It has failed to set the lasting conditions for peace. Violence, though down, still continues at horrifying rates. The various Iraqi factions have made little progress towards political reconciliation. The deadly rifts in that war-torn country have only grown deeper. The Iraqi government has done little to support the few encouraging trends like the willingness of some Sunni groups to turn against the insurgency. The only thing that is going to force the Iraqis to come to terms-- the only way to get Iraq's neighbors involved in bringing about peace there--is to make clear that our country is not going to be there forever. We cannot afford to spend more of our precious resources and to spill more of the precious blood of our troops if the Iraqis will not take responsibility for their own future. There is a way to begin to right the wrongs of the President's failed policy on Iraq. That better path involves effective diplomacy and a strong signal about our finite military presence in Iraq, not this senseless waste of money and lives. The Feingold-Reid-Leahy Amendment offers the real promise of a long-term positive outcome for our security and the people of Iraq. I urge the amendment's adoption.

Mr. LEAHY. Mr. President, what is the time remaining?

Mr. LEAHY. Mr. President, I ask unanimous consent that we have 1 minute evenly divided added to the time.

Mr. LEAHY. Mr. President, I came here at the time of the Vietnam war. I remember how people said maybe it should end and maybe we should do something; the Vietnam war has gone on too long. We finally stopped it. I am the only Vermonter ever to vote against the war in Vietnam. I voted against funding for it, and the funding failed in the Senate in April of 1975 by one vote. The war ended. Two years later, it was hard to find anybody who supported the war, even though we paid for it for a long time. We have been in Iraq longer than we were in World War II. It is time to bring our brave men and women home. Let them be with their families and let the Iraqis take care of Iraq. I yield the floor.

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

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

Mr. LEAHY. Mr. President, I hope we can quickly reach a point where Senators on both sides are willing to finish speaking. Obviously, I am not going to ask to cut off anybody's time. As soon as there is no Senator seeking recognition, I will move again to yield back all time on this vote and all time on the judge's vote, so we can go to both those votes back to back.

Mr. LEAHY. Mr. President, I see the Senator from Iowa, who obviously has the right to speak. Let me ask again how much time remains on both sides.

Mr. LEAHY. Mr. President, in this discussion of earmarks, of course, the elephant in the room--and I do not necessarily mean that as a pun-- are the hundreds of billions of dollars of earmarks from the President of the United States: the blank check to the war in Iraq; the blank check to the people who are hired as contractors, various companies-- Halliburton is one that comes to mind, but many others, Blackwater and so on. These blank checks--nobody wants to talk about those. But every President--not just this President but every President--has hundreds of billions of dollars in earmarks in the bill. This President has had trillions of dollars. That is why this President, who inherited the largest surplus in the Nation's history, has turned it into the largest deficit in the Nation's history. And it is why? Because with the combination of his deficits and his war in Iraq, he is just paying the interest on the Bush administration's debt and the war--just the interest and the cost of the war. Every day, 7 days a week, 365 days a year--366 in leap year--we spend $1 billion every single day--every single day--in interest and the war in Iraq. That is money that does not go to education, does not go to finding a cure for cancer or Alzheimer's or diabetes or AIDS. It is $1 billion a day that does not go to educate our children and our grandchildren. It is $1 billion a day that does not go to find a way to make sure our schools can start competing again with schools around the world. It is $1 billion a day that does not go to paying down the national debt. So those are the earmarks we do not talk about. Mr. President, I yield to the senior Senator from Florida.

Mr. LEAHY. And, Mr. President, is there a time allotted on the amendment of the Senator from Michigan?

Mr. LEAHY. Mr. President, I am going to require 5 minutes.

Mr. LEAHY

Mr. LEAHY. Mr. President, if the leader will yield, Senator Dodd is prepared----