Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, at the very beginning of this Congress, one of the very first actions I took was to re-introduce the Court Security Improvement Act of 2007, along with Senators Reid, Specter, Durbin, Cornyn, Kennedy, Hatch, Schumer and Collins. The Judiciary Committee considered this important legislation, and recommended it to the full Senate. When Majority Leader Reid wanted to move to consider it, he could not get a time agreement. We were forced to dedicate almost a week of precious floor time to overcome a Republican objection, just to proceed to debate on the bill. Eventually, the measure passed by a 97 to 0 vote. Not a single Senator voted against it. A short time later, a nearly identical bill passed the House by a voice vote. Despite the broad bipartisan support for both bills, however, we were blocked from going to conference to resolve the minor differences between them by an anonymous hold placed by a Republican Senator. For months, we negotiated the minor differences between the House and Senate versions of this legislation. When we are responding to attacks and threats on our Federal judges, witnesses and officers, time is of the essence. Just last month in Nevada, a man admitted to shooting and injuring the family court judge who was presiding over his divorce. This type of violence against our judiciary can and must be prevented. For our justice system to function effectively, our judges and other court personnel must be safe and secure. They and their families must be free from the fear of retaliation and harassment. Witnesses who come forward must be protected, and the courthouses where our laws are enforced must be secure. Today, almost eleven months after introducing this legislation, we may actually reach consent to pass a compromise version that will pass the House and be sent to the President. We must act now to get these protections in place and stop delaying such protective measures by anonymous holds. I urge Senators to take up and pass this compromise version of the Court Security Improvement Act so that we can provide the necessary protections that our Federal courts so desperately need. The security of our Federal judges and our courthouses around the Nation is at stake.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Foreign Intelligence Surveillance Act-- FISA--is intended to protect both our national security and the privacy and civil liberties of Americans. We are considering amendments to that important act that will provide new flexibility to our intelligence community. I think we all support surveillance authority, and we have joined together to update FISA dozens of times since its historic passage after the intelligence abuses of earlier decades. I thank the majority leader for his efforts in bringing this matter before the Senate. He has consulted with me and with Chairman Rockefeller and is proceeding by regular order to bring this legislation before the Senate in a manner that allows deliberation of the many protections of Americans' rights added to the bill during consideration by the Senate Judiciary Committee. It is vitally important that we correct the excesses of the so-called Protect America Act that was rushed through the Senate in an atmosphere of fear and intimidation just before the August recess after the administration reneged on agreements reached with congressional leaders. That bill was hurriedly passed under intense, partisan pressure from the administration. It provided sweeping new powers to the Government to engage in surveillance, without a warrant, of international calls to and from the United States involving Americans, and it provided no meaningful protection for the privacy and civil liberties of the Americans who are on those calls. Before that flawed bill passed, Senator Rockefeller and I, and several others in the House and the Senate, worked hard and in good faith with the administration to craft legislation that solved an identified problem but also protected Americans' privacy and liberties. Just before the August recess the administration decided, instead, to ram through its version of the so-called Protect America Act with excessive grants of Government authority and without accountability or checks and balances. After almost 6 years of violating FISA through secret warrantless wiretapping programs, that was wrong. A number of us supported the better balanced alternative and voted against the Protect America Act as drafted by the administration. Fortunately, because the Protect America Act has a 6-month sunset, we have a chance to revisit this matter and do it right. The Judiciary Committees and Intelligence Committees in the Senate and the House have spent the past months considering changes to FISA. In the Senate Judiciary Committee, we held open hearings and countless briefings and meetings to consider new surveillance legislation. We considered legislative language in a number of open business meetings of the committee and reported a good bill to the Senate before Thanksgiving. The bill we are considering will permit the Government, while targeting overseas, to review more Americans' communications with less court supervision than ever before. I support this surveillance, but we must also take care to protect Americans' liberties. Attorney General Mukasey said at his nomination hearing that ``protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security.'' On that I agree with him. That is what the Senate Judiciary bill does. I commend the House of Representatives for passing a bill, the RESTORE Act, that takes a balanced approach to these issues. It allows our intelligence community great flexibility to conduct surveillance on overseas targets, while providing oversight and protection for Americans' civil liberties. The Senate Select Committee on Intelligence has also worked hard. I know that Chairman Rockefeller was as disappointed as I at the administration's partisan maneuvering just before the August recess. I commended his efforts this summer and do so, again, now. I believe that he and I both want surveillance with oversight and accountability. I also want to praise our joint members, Senators Feinstein, Feingold, and Whitehouse, who as members of both the Judiciary Committee and the Select Committee on Intelligence contributed so much to the work of the Judiciary Committee and who worked with me to author many of the additional protections that we adopted and reported. These Senators and others on the Judiciary Committee worked hard to craft amendments that preserve the basic structure and authority proposed in the bill reported by the Select Committee on Intelligence, while adding crucial protections for Americans. In my view, and I think the view of many Senators, we need to do more than the bill initially reported by the Senate Select Committee on Intelligence to protect the rights of Americans. Indeed, Senator Rockefeller joins with me to support many of the Judiciary Committee's improvements. The Judiciary bill, for example, makes clear that the Government cannot claim authority to operate outside the law--outside of FISA--by alluding to legislative measures that were never intended to provide such exceptional authority. This administration has come to argue that the Authorization for the Use of Military Force, AUMF, passed after September 11, justified conducting warrantless surveillance of Americans for more than 5 years. I introduced a resolution on this in the last Congress, when we first heard this canard. When we authorized going after Osama bin Laden, the Senate did not authorize--explicitly or implicitly--warrantless wiretapping of Americans. Yet this administration still clings to this phony legal argument. The Judiciary bill would prevent that dangerous contention with strong language reaffirming that FISA is the exclusive means for conducting electronic surveillance for foreign intelligence purposes. The Judiciary bill would also provide a more meaningful role for the FISA Court in this new surveillance. The court is a critical independent check on Government excess in the very sensitive area of electronic surveillance. The fundamental purpose of many of the Judiciary Committee changes is to assure that this important, independent check remains meaningful. On one important issue, I strongly oppose the bill reported by the Senate Select Committee on Intelligence. That bill includes one provision that goes beyond even the so-called Protect America Act. It would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year contrary to FISA and in violation of the privacy rights of Americans. This administration violated FISA by conducting warrantless surveillance for more than 5 years. They got caught, and if they hadn't, they would probably still be doing it. When the public found out about the President's illegal surveillance of Americans, the administration and the telephone companies were sued by citizens who believe their privacy and their rights were violated. Now the administration is trying to get this Congress to terminate those lawsuits in order to insulate itself from accountability. We should not allow this to happen. The rule of law is fundamentally important in our system, and so is protecting the rights of Americans from unlawful surveillance. I do not believe that Congress can or should seek to take those rights and those claims from those already harmed. 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 the illegal conduct. I voted for cloture on the motion to proceed to the measure, just as I would have supported proceeding to the House-passed bill, because I believe it is important that we correct the excesses of the so-called Protect America Act. The Judiciary Committee has done good work in reporting protective measures to the Senate to add balance to the surveillance powers of the Government and to better ensure the rights of Americans. I strongly oppose retroactive immunity in favor of accountability. As we debate these issues, let us keep in mind the reason we have FISA in the first place. Not so long ago, we painfully learned the hard lesson that powerful surveillance tools, without adequate oversight or the checks and balances of judicial review, lead to abuses of the rights of the American people. I hope this debate will provide us an opportunity to show the American people what we stand for, that we will do all we can to secure our future while protecting their cherished rights and freedoms. Mr. President, I suggest the absence of a quorum.

Mr. LEAHY. I thank the Chair. We have a Judiciary Committee bill that was passed out with a majority vote. I, at some point, will modify that somewhat. At some point, that will require a vote. We have discussed this already. I wanted to make sure people understand that. Senator Dodd will go first, but at some point I will do that.

Mr. LEAHY

Mr. LEAHY. Madam President, I am pleased that, once again, the Senate has reaffirmed its bipartisan commitment to open and transparent government by unanimously passing the Openness Promotes Effectiveness in our National Government Act, the ``OPEN Government Act--the first major reform to the Freedom of Information Act, ``FOIA'', in more than a decade. I commend the bill's chief Republican cosponsor, 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, so that the Senate could consider and pass meaningful FOIA reform legislation this year. Earlier this year, the Senate passed this historic FOIA reform legislation, S. 849, before adjourning for the August recess. Now that the Senate has unanimously passed a modified bill, to ensure that ``pay/go'' and other concerns of the House are adequately addressed, I hope that the House will promptly enact this bill and send it to the President without further delay. I have worked very hard to address the concerns of the House Oversight and Government Reform Committee, to ensure that the Congress can enact meaningful FOIA reform legislation this year. I commend Congressman Waxman, the distinguished Chairman of that Committee, for his commitment to FOIA reform and I thank him and his staff for all of their hard work on this legislation. The bill that the Senate passed today includes ``pay/go'' language that has been requested by the House and it also eliminates a provision on citations to FOIA exemptions in legislation that was in the previous bill. To accommodate other concerns of the House, the bill also 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. In addition, the bill adds FOIA duplication fees for noncommercial requesters, 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. While I will continue to work with the House and others to further strengthen this critical open government law, I hope that the House will promptly take up the bipartisan FOIA compromise bill that we have been able to pass so that it may be signed into law before the end of the year. 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 bill 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. Specifically, 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. To ensure accuracy in FOIA responses, the bill allows federal agencies to toll the 20-day clock while they are awaiting a response to a reasonable request for information from a FOIA requester on one occasion, or while the agency is awaiting clarification regarding a FOIA fee assessment. In addition, to encourage agencies to meet the 20- day time limit the bill requires that an agency refund FOIA search fees--and duplication fees for noncommercial requestors--if it fails to meet the 20-day deadline, except in the case of exceptional circumstances as defined by the FOIA statute. The bill also addresses a relatively new concern that, under current law, Federal agencies have an incentive to delay compliance with FOIA requests until just before a court decision is made that is favorable to a FOIA requestor. The Supreme Court's decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598, 2001, eliminated the ``catalyst theory'' for attorneys' fees recovery under certain federal civil rights laws. When applied to FOIA cases, Buckhannon precludes FOIA requesters from ever being eligible to recover attorneys fees under circumstances where an agency provides the records requested in the litigation just prior to a court decision that would have been favorable to the FOIA requestor. The bill clarifies that Buckhannon does not apply to FOIA cases. Under the bill, a FOIA requester can obtain attorneys' fees when he or she files a lawsuit to obtain records from the Government and the Government releases those records before the court orders them to do so. But, this provision would not allow the requester to recover attorneys' fees if the requester's claim is wholly insubstantial. To address House ``pay/go'' concerns, the bill also requires that any attorneys'' fees assessed under this provision be paid from any annually appropriated agency funds. 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 will appoint a Chief FOIA Officer, who will monitor the agency's compliance with FOIA requests, and a FOIA Public Liaison who will be available to resolve FOIA related disputes. Finally, the bill does several things to enhance the agency reporting and tracking requirements under FOIA. The bill creates a tracking system for FOIA requests to assist members of the public and the media. The bill also establishes a FOIA hotline service for all Federal agencies, either by telephone or on the Internet, to enable requestors to track the status of their FOIA requests. The bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. The Freedom of Information Act is an essential tool to ensure that all Americans can access information about the workings of their government. But, after four decades, this open government law needs to be strengthened. I am pleased that the reforms contained in the OPEN Government Act will ensure that FOIA is reinvigorated--so that it works more effectively for the American people. Again, I commend Senators Cornyn and Kyl and the many other cosponsors of this legislation for their dedication to open government. But, most importantly, I especially want to thank the many concerned citizens who, knowing the importance of this measure to the American people's right to know, have demanded action on this bill. This bill is endorsed by more than 115 business, public interest, and news organizations from across the political and ideological spectrum, including the American Library Association, the U.S. Chamber of Commerce, OpenTheGovemment.org, Public Citizen, the Republican Liberty Caucus, the Sunshine in Government Initiative and the Vermont Press Association. The invaluable support of these and many other organizations is what led the opponents of this bill to come around and support this legislation. By passing this important FOIA reform legislation, the Senate has reaffirmed the principle that open government is not a Democratic issue or a Republican issue. But, rather, it is an American issue and an American value. I strongly encourage the House of Representatives, which overwhelmingly passed a similar measure earlier this year, to promptly take up and enact this bill before adjourning for the year.

Mr. LEAHY

Mr. LEAHY. Madam President, the Senate continues, as we have all year, to make progress filling judicial vacancies by considering yet another nomination reported out of Committee this month. The nomination before us today for a lifetime appointment to the Federal bench is Thomas D. Schroeder, to the Middle District of North Carolina. He has the support of both home State Senators. I acknowledge the support of Senators Dole and Burr, and want to thank Senator Whitehouse for chairing the hearing on this nomination. Last month, the Judiciary Committee reached a milestone by voting to report our 40th judicial nominee this year. That exceeds the totals reported in each of the previous 2 years, when a Republican-led Judiciary Committee was considering this President's nominees. Thomas D. Schroeder is a Partner at the Winston-Salem, NC, office of the law firm of Womble, Carlyle, Sandridge & Price, PLLC, where he has worked almost his entire legal career. Mr. Schroeder served as a law clerk for Judge George E. MacKinnon on the U.S. Court of Appeals for the DC Circuit. He graduated from Kansas University and Notre Dame Law School, where he was Editor-in-Chief of the Notre Dame Law Review. When we confirm the nomination we consider today, the Senate will have confirmed 39 nominations for lifetime appointments to the Federal bench this session alone. That exceeds the totals confirmed in all of 2004, 2005, and 2006 when a Republican-led Senate was considering this President's nominees; all of 1989; all of 1993, when a Democratic-led Senate was considering President Clinton's nominees; all of 1997 and 1999, when a Republican-led Senate was considering President Clinton's nominees; and all of 1996, when the Republican-led Senate did not confirm a single one of President Clinton's circuit nominees. When this nomination is confirmed, the Senate will have confirmed 139 total Federal judicial nominees in my tenure as Judiciary Chairman. 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. The Administrative Office of the U.S. Courts will list 44 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 vacancies that arose at the beginning of the 110th Congress and throughout this year, the current vacancy totals under my chairmanship of the Judiciary Committee are below where they were under a Republican led-Judiciary Committee. They are almost half of what they were at the end of President Clinton's term, when Republican pocket filibusters allowed judicial vacancies to rise above 100 before settling at 80. Twenty-six of them were for circuit courts. When the President consults and sends the Senate well-qualified, consensus nominations, we can work together and continue to make progress as we are today. I congratulate the nominee and his family on his confirmation today.

Mr. LEAHY

Mr. LEAHY. Madam President, I am pleased that we can take a break from the tired partisan sniping from the other side of the aisle to continue, as we have all year, making progress considering and confirming the President's judicial nominations. The complaints we hear more and more loudly as we approach an election year from the President and others ring hollow. Last month, the Judiciary Committee reached a milestone by reporting out 4 more nominations for lifetime appointments to the Federal bench, reaching 40 in this session of Congress alone. That exceeds the totals reported in each of the previous 2 years, when a Republican-led Judiciary Committee was considering this President's nominees. Today we consider the nomination of Joseph Normand Laplante, who has been nominated to fill a vacancy in the Northern District of Texas. Joseph is well known to many of us Vermonters as he has spent much of his professional career working for our friends to the east in the old Granite State of New Hampshire and our friends to the south in the Bay State of Massachusetts. Joseph serves as the first assistant U.S. attorney for the District of New Hampshire. Before that, Joseph served as an Assistant U.S. Attorney in the District of Massachusetts, a trial attorney for the U.S. Justice Department's Criminal Division, and a senior assistant attorney general for the State of New Hampshire Office of the Attorney General. He also has experience as a private practitioner in New Hampshire. Joseph graduated from Georgetown University in 1987 and from the Georgetown Law Center in 1990. I thank Senator Gregg and Senator Sununu for their consideration of this nomination and Senator Whitehouse for chairing the confirmation hearing. When we confirm the nomination we consider today, the Senate will have confirmed 38 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 1997, 1999, 2004, 2005 or 2006 with a Republican Majority. It is 21 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. When this nomination is confirmed, the Senate will have confirmed 138 total Federal judicial nominees in my tenure as Judiciary Chairman. 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. The Administrative Office of the U.S. Courts will list 45 judicial vacancies and 14 circuit court vacancies after today's confirmation. 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. They are only a little more than half of what they were at the end of President Clinton's term, when Republican pocket filibusters allowed judicial vacancies to rise to 80, 26 of them for circuit courts. Despite the progress we have made, I will continue to work to find new ways to be productive on judicial nominations. Just 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 Senator Webb, a Democrat, and Senator Warner, a Republican. 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. When the President sends on well-qualified consensus nominations, we can work together and continue to make progress as we are today. I congratulate Joseph and his family on his confirmation today.

Mr. LEAHY

Mr. LEAHY. Madam President, the conference report on the fiscal year 2008 Department of Defense authorization bill now before the Senate includes some significant mileposts of progress for the National Guard. Those sections of the bill come directly from the National Guard Empowerment Act of 2007, a bill that I sponsored along with Senator Kit Bond of Missouri, my fellow cochair of the U.S Senate National Guard Caucus. Well over half of the Senate--a significant portion of the National Guard Caucus--cosponsored the empowerment bill. Working with the Nation's Governors, key National Guard-affiliated organizations, and the Adjutants General of the United States, we make notable headway in this bill on several issues that go to the core of the Guard's missions, preparedness and our national defense. This legislation clears away organizational cobwebs in the Department of Defense and changes the Pentagon's structure to better reflect the vital role and responsibilities of the Guard. More importantly, we direct the Department of Defense to begin the urgently needed process of tapping into the National Guard's extensive experience in homeland defense issues--expertise the Defense Department has previously ignored. To give the Guard more bureaucratic muscle, especially in decisions affecting the Guard, the legislation elevates the Chief of the National Guard from the rank of lieutenant general to the rank of general, making the Chief the prime military adviser to the Secretary of Defense and the Chairman of the Joint Chiefs of Staff. The National Guard Bureau becomes what is called a Joint Activity, still closely affiliated with the Department of the Army and the Air Force, but now more like other joint agencies like Combatant Commands and the Defense Intelligence Agency, capable of communication across the Department. To focus the Defense Department more on homeland defense, the bill requires that the Deputy Commander of the U.S. Northern Command come from the ranks of the National Guard, and it requires the Department of Defense to develop a plan in conjunction with the Guard to deal with homeland defense situations. These reforms are tangible progress for the Guard, and there is a pressing need for them. The National Guard is a keystone to our Nation's defense, ready to carry out missions at home and abroad. The Guard is ready to serve as the primary reserve to both the Army and the Air Force, while taking the lead in providing military support during emergencies situations at home. It would take a long time even only to list the missions accomplished by the National Guard since September 11 in carrying out their assignments in Iraq and Afghanistan or to respond to natural disasters like Hurricane Katrina. Despite all the Guard's achievements on our behalf, the force often has gotten second-class treatment in the Department of Defense. The Guard has to beg and scrape and rely on the tender mercies of others for every piece of equipment they need to do the jobs they are asked to do, and they have to fight to be included in the long-range planning and budget and policy discussions that directly affect the Guard, its missions, its people, its equipment and its other needs. The Guard works extremely closely with state emergency responders, and they have special authorities and experience in working within the domestic United States. But despite this special expertise and these special authorities, does the Pentagon listen to and learn from the Guard's ideas and knowledge about domestic defense? Sad but true, the answer is no. I wish we could have gone even further in this legislation. Dropped during floor debate here in the Senate was a section of the Empowerment bill to make the Guard Bureau Chief a member of the Joint Chiefs of Staff. That would improve the quality of advice to the Secretary of Defense and the President on domestic defense matters. Another provision, removed in conference with the House, would give the Guard a separate budget for procuring homeland defense-related equipment, as well as the ability to work with states to identify gaps in emergency response capabilities. Another clearly warranted section of our bill would have ensured that our Adjutants General, who command units from the both the Army Guard and the Air Force Guard, receive joint credit for their experience. That would create a greater pool of candidates for the senior positions that we have opened up in this bill. The institutional objections we heard to these provisions ranged from the weak to the unreasonable. But regrettably, in this case they carried the day. We did make clear progress. The joint activity provision, to take a less prominent example, is highly significant. The phrase ``joint activity'' means exactly how it is used in the Goldwater-Nichols Act: an organization that performs joint missions under the auspices of the Office of the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, or the commander of a Combatant or a Combined Command. The National Guard Bureau has now basically been given a legal license to work not only with the two services--the Army and Air Force--but also with a variety of unified commands, the Joint Staff, and the Office of the Secretary of Defense. The National Guard Bureau now will have similar organizational standing as that granted to other joint activities such as, among many other organizations, the Joint Staff or the Defense Logistics Agency. This coalition of National Guard supporters--which goes far beyond the sponsors and co-sponsors to the Governors, the Associations, and many others--must keep pushing. If we are to have a national security structure that is as effective as the American people need and deserve it to be, we must ensure that the Guard's voice is heard loud and clear in key deliberations. We must ensure that the Pentagon takes the military support mission seriously. We should consider re-introducing the portions of the Empowerment legislation that have not yet been enacted. To keep a laser-like focus on domestic defense, we must take a careful look at other Defense Department organizations involved in domestic defense, like U.S. Northern Command. I know that Senator Bond joins me in thanking the Nation's Governors for their stalwart support of the empowerment bill, as well their unstinting energy in working with us on another successful effort on behalf of the Guard, the similarly successful effort to repeal the recent changes to the Insurrection Act, turning back an unjustifiable expansion of a President's power to use the military for law enforcement. This provision of this Defense authorization bill was drawn directly from legislation that I introduced with Senator Bond, which this year was the subject of a hearing by the Judiciary Committee. Associations like the Adjutants General Association of the United States, the National Guard Association of the United States, and the Enlisted Association of the National Guard of the United States were there every step of the way, keeping their members informed and bringing enormous energy to this effort. Special thanks go to Representatives Gene Taylor of Mississippi and Tom Davis of Virginia who led a vigorous, companion effort on the House side, as well as Senators Carl Levin of Michigan, John McCain of Arizona, and John Warner of Virginia for leading the Senate negotiations. We owe the deepest thanks to the almost 500,000 members of the National Guard. Their ability to balance their full-time jobs with their family responsibilities and Guard commitments is simply remarkable. They are indispensable to our national security structure, at home, and abroad. Their sense of pride, professionalism and duty represents the very best qualities of our military and our country. I am simply in awe of what they have done to protect this Nation, and I know the whole Congress and the country share this heartfelt gratitude. Throughout this whole process, we have been guided by the fact that the Guard is always there for the people of the United States of America. Our part is easier than theirs: We cannot afford to let our Guard down. The Guard Empowerment provisions of this bill will help us honor that commitment to the men and women of the Guard.

Mr. LEAHY

Mr. LEAHY. Madam President, I strongly disagreed with the very conservative, very activist Supreme Court decision on Kelo, but this is not the place to correct that, on a farm bill. If the Senate, or any Senator, wants to introduce legislation to repeal Kelo, then let's take it to the committee of jurisdiction, the Senate Judiciary Committee, and we will hold hearings on it. There have been no hearings. This amendment does nothing to prevent the Government from seizing private property in order to hand it over to private developers. Instead, it allows governments to seize farmland for a prison but not eminent domain for conservation purposes or a parkland. It is opposed by all the leading conservation groups--the Defenders of Wildlife, the National Wildlife Federation, the Wilderness Society, and on and on. Now, my commitment to farming is very strong, but I don't want to say let's grab farmland for a prison because we passed legislation that nobody has reviewed, nobody has done anything on. This is a mistake. It doesn't belong in a farm bill. If the Senate, or any Senator, wants to overturn the Kelo decision, which after all was done by an activist Republican conservative Supreme Court, then we will hold hearings on it.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senate continues, as we have all year, to make progress filling judicial vacancies by considering yet another nomination reported out of committee this month. The nomination before us today for a lifetime appointment to the Federal bench is Amul R. Thapar, to the Eastern District of Kentucky. He has the support of both home State Senators. I acknowledge the support of Senators McConnell and Bunning, and want to thank Senator Whitehouse for chairing the hearing on this nomination. In November, the Judiciary Committee reached a milestone by voting to report our 40th judicial nominee this year. That exceeds the totals reported in each of the previous 2 years, when a Republican-led Judiciary Committee was considering this President's nominees. I am delighted to promptly consider the nomination of Mr. Thapar. The National Asian Pacific American Bar Association wrote to us in support of his nomination, which is the first of a South Asian American to be an Article III judge by this President. When confirmed, he would become only the seventh Asian Pacific American Article III judge in our Nation's history. Amul R. Thapar is the U.S. Attorney for the Eastern District of Kentucky in Lexington, KY. Before that, he served as an Assistant U.S. Attorney in the Southern District of Ohio and in the District of Columbia. He worked in private practice at the law firms of Squire, Sanders & Dempsey and Williams & Connolly LLP and worked as a general counsel for Equalfooting.com. Mr. Thapar served as a law clerk for Judge Nathaniel R. Jones on the U.S. Court of Appeals for the Sixth Circuit and for Judge S. Arthur Spiegel on the District Court for the Southern District of Ohio. He graduated from Boston College and the University of California, Berkeley Boalt Hall School of Law. When we confirm the nomination we consider today, the Senate will have confirmed 37 nominations for lifetime appointments to the Federal bench this session alone. That exceeds the totals confirmed in all of 2004, 2005, and 2006 when a Republican-led Senate was considering this President's nominees; all of 1989; all of 1993, when a Democratic-led Senate was considering President Clinton's nominees; all of 1997 and 1999, when a Republican-led Senate was considering President Clinton's nominees; and all of 1996, when the Republican-led Senate did not confirm a single one of President Clinton's circuit nominees. When this nomination is confirmed, the Senate will have confirmed 137 total Federal judicial nominees in my tenure as Judiciary chairman. 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. The Administrative Office of the U.S. Courts will list 45 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 vacancies that arose at the beginning of the 110th Congress and throughout this year, the current vacancy totals under my chairmanship of the Judiciary Committee are below where they were under a Republican led-Judiciary Committee. They are almost half of what they were at the end of President Clinton's term, when Republican pocket filibusters allowed judicial vacancies to rise above 100 before settling at 80. Twenty-six of them were for circuit courts. When the President consults and sends the Senate well-qualified, consensus nominations, we can work together and continue to make progress as we are today. I congratulate the nominee and his family on his confirmation today.

Mr. LEAHY

Mr. LEAHY. Mr. President, with only a few legislative days left to us before the Christmas holidays and the end of this session, we continue seeking to make progress in filling the many U.S. attorney vacancies across our Nation and the high-level vacancies at the Justice Department. Today, the Senate will confirm three more nominations for U.S. attorneys, including the nominations of Gregory A. Brower to the District of Nevada, Diane J. Humetewa to the District of Arizona, and Edmund A. Booth, Jr. to the Southern District of Georgia. Two of the three nominations--Ms. Humetewa and Mr. Brower--are replacements for two of the outstanding U.S. attorneys who were fired almost a year ago as part of the ill-advised, partisan plan to replace well-performing U.S. attorneys. I thank the home State Senators--Senators Reid, Ensign, McCain, Kyl, Chambliss, and Isakson--for their consideration of these nominations. We also are proceeding to fill one of the many high-level vacancies at the Department of Justice by confirming the nomination of Ronald Jay Tenpas to be Assistant Attorney General for the Environment and Natural Resources Division at the Justice Department. I thank Senator Whitehouse for chairing his hearing. Over the course of this year, the Judiciary Committee's investigation into the firing of United States attorneys and the influence of White House political operatives on Federal law enforcement has led to resignations at the highest ranks in the Justice Department, including the Attorney General, the Deputy Attorney General, the Associate Attorney General, the chiefs of staff of the Attorney General and Deputy Attorney General, the White House liaison, as well as several White House officials. When I met with Michael Mukasey before his confirmation hearing to replace Alberto Gonzales as Attorney General, I emphasized the need to fill the many vacancies that remain at the Department with nominees who will restore the independence of Federal law enforcement. In the days before the congressional Thanksgiving recess, the White House made a show of releasing the names of a score of nominees for high-level positions in the Department of Justice. Yet, that announcement was mostly bluster. We received the nomination of Mark Filip to be the Deputy Attorney General nearly 3 full weeks after the announcement was made. Had the nomination been sent immediately following the White House announcement, the committee could have considered Judge Filip's nomination in early December. As it was, after a 3-week White House delay in sending up the nomination, I immediately set a hearing on his nomination for next Wednesday, December 19, once the Senate received it. Nearly a month after the White House announced its intent to nominate Kevin O'Connor be the Associate Attorney General and Gregory Katsas to be the Assistant Attorney General of the Civil Division at the Department of Justice we have only now received those nominations. We have not yet been provided with their background materials to allow us to review them. Because of the administration's delay, we will not be able to consider those nominations before the end of the year. The Judiciary Committee has reported 20 executive nominations this year. To make further progress, the committee is holding back-to-back hearings next week, before the Christmas break, on six nominations for senior leadership posts at the Justice Department and Executive Office of the President, including the recently received nomination to be Deputy Attorney General. There are now 23 districts with acting or interim U.S. attorneys instead of Senate-confirmed, presidentially appointed U.S. attorneys, over a quarter of all districts. Many of these vacancies, including several for which we consider nominations today, could have been filled a year ago had the White House worked with the Senate. In the course of the committee's investigation into the unprecedented mass firing of U.S. attorneys by the President who appointed them, we uncovered an effort by officials at the White House and the Justice Department to exploit an obscure provision enacted during the Patriot Act reauthorization to do an end-run around the Senate's constitutional duty to confirm U.S. attorneys. The result was the firing of well- performing U.S. attorneys for not bending to the political will of political operatives at the White House. When it comes to the United States Department of Justice and to the U.S. attorneys in our home States, Senators have a say and a stake in ensuring fairness and independence in order to insulate the Federal law enforcement function from untoward political influence. That is why the law and the practice has always been that these appointments require Senate confirmation. The advice and consent check on the appointment power for U.S. attorneys is a critical function of the Senate. I had hoped when the Senate unanimously voted to close the loophole created by the Patriot Act, passing S.214, the ``Preserving United States Attorneys Independence Act of 2007,'' it would send a clear message to the administration to make nominations that could receive Senate support and begin to restore an important check on the partisan influence in law enforcement. Yet, even as we closed one loophole, the administration has been exploiting others to continue to avoid coming to the Senate. Under the guidance of an erroneous opinion of the Justice Department's Office of Legal Counsel, the administration has been naming acting U.S. attorneys and interim U.S. attorneys sequentially. They have used this misguided approach to put somebody in place for 330 days without the advice and consent of the Senate. This approach runs afoul of congressional intent and the law. We will continue to make progress when we can, and I will continue to urge the White House to send the Senate consensus, qualified nominees. I congratulate the nominees and their families on their confirmation today.

Mr. LEAHY

Mr. LEAHY. Mr. President, I oppose the amendment offered by Senator Gregg, among others. It is certainly not within the jurisdiction of the Senate Agriculture Committee, on which I have the honor to serve, but is within the jurisdiction of the Senate Judiciary Committee, which I have the honor to chair. It is something that should be looked at there. It would be like putting a Defense amendment on the Agriculture bill. But far worse than just the question of where the jurisdiction is and why this amendment makes no sense here, it would limit the legal rights of what rural women and children are eligible to receive when they are severely injured in our health care system. It does not provide protection for rural women and children. In fact, it leads to a lower standard of care by treating them differently than all other patients in the country. I am certainly not going to vote for something like this and go home to my State, which is a very rural State, and tell the women and children: I voted to make you a second-class citizen. The amendment will overturn our State laws regarding the statute of limitations. It would limit the legal rights of our most vulnerable citizens. I am always surprised at the other side when I hear, depending on what the issues are: We have to protect the States. We have to protect our State laws. We can't have the Federal Government trample on the State laws. However, if it is something the major insurers want: Of course we will override State laws concerning the statute of limitations, we will limit the legal rights of our most vulnerable citizens. Nothing remotely related to this novel legal treatment of severely injured rural women or children has even been debated or discussed in the Judiciary Committee. I suspect because nobody would take it seriously if you said we have to protect insurance companies, so we have to cut the legs out from under rural women and children. The amendment does nothing to protect rural victims of medical malpractice. It does nothing to prevent the serious injuries of malpractice in the first place. Caps on damages, such as the one in the pending amendment, would arbitrarily limit the compensation that the most seriously injured patients are able to receive. This says nothing of what it does to State legislators, which is trample State legislators by telling them that an amendment debated for a matter of minutes on the floor, in our judgment, is so much better than the laws of your State. The central truth of the troubles of malpractice insurance is that it is a problem in the insurance system and industry, not in the tort system. High malpractice insurance premiums are not the direct result of malpractice lawsuit verdicts. There have been enough studies to prove that conclusively. Rather, they are the result of investment decisions by the insurance companies that resulted in business models geared to ever-increasing profits, as well as the cyclical hardening of the liability insurance market. Instead of blaming lawyers or, worse yet, blaming the victims of medical malpractice, we should look at the special treatment Federal law currently bestows on the insurance industry. They have a blanket exemption from Federal antitrust laws. Most people don't realize that. We assume the law applies to everybody in this country, but antitrust laws do not apply to these insurance companies. Our antitrust laws for everybody else are the beacon of good competition practice, and when our antitrust laws are followed, consumers benefit. How? They get lower prices, they get more choices, and they invariably get better services. But when the insurance industry operates outside of the structure of antitrust laws, and they do not have to face any competition, then they are allowed to collude and they can set rates. When they do, our health care system, our physicians and our patients all suffer. Earlier this year I introduced the bipartisan Insurance Industry Competition Act, S. 618, along with Senators Specter and Lott and Reid and Landrieu. It would assure that malpractice insurers and others could not artificially raise premiums and reduce benefits through collusion. This is a responsible solution to ensure competitive pricing--putting the burden on rural victims of medical malpractice is not. If you were to try to put the burden on the rural victims, the women and children of rural America, for somebody else's medical malpractice, that is not the way to solve the problems. Arbitrarily capping damages available to rural women and children does nothing to solve the flawed medical malpractice insurance market. It is a boon to companies that operate outside the antitrust system and can collude to set rates anywhere they want. I would suggest we do a thoughtful, collaborative consideration in the Judiciary Committee where this discussion belongs, get a sensible solution that is fair to patients and can support those in our medical profession who want to practice quality health care. This partisan amendment does not do this. It is not designed for a creative solution to a serious problem. Anyone who wants to vote for it, I hope they are prepared to go home and tell their State legislature: We walked all over you in hobnailed boots, you are irrelevant, we are the Senate. One hundred people here know far better than the legislatures in all your States. That is not the way to do it. That is not the way to bring things about. So if you want real consideration of this, let's do it along with raising the issues of why should the insurance companies be able to collude, why should they be outside the antitrust laws, why should they be able to meet behind closed doors and do whatever they want to set our rates? That is what I ask.

Mr. LEAHY

Mr. LEAHY. Mr. President, in the 8 months since the horrific incident at Virginia Tech that resulted in the tragic deaths of 32 students, we have witnessed a barrage of new incidents involving threatening conduct and, too often, deadly acts of violence at our schools and college campuses nationwide. Just this past Saturday, police arrested a student at Loyola Marymount University in Los Angeles on suspicion of posting an anonymous online threat to kill people on campus. The threat appeared on a blog used primarily by college students. It said: ``I am going to shoot and kill as many people as I can until which time I am incapacitated or killed by police.'' Fortunately, police got to this troubled student before he could make good on his threat. But I urge the Senate not to sit back and wait until the next time, when police may not be able to stop a deadly event before it occurs. We must act now to protect our schools and college campuses. Those who perpetrate these terrible crimes know no boundaries. No targets are off limits. This past Sunday, a man killed two people in Arvada, CO, after being refused lodging at a Christian missionary center. Later that day, in Colorado Springs, the same man opened fire outside the New Life Church, taking the lives of two teenaged sisters and leaving a third victim in critical condition. These recent incidents make clear yet again that we must do all we can to ensure that law enforcement is prepared and equipped to respond to such incidents. I urge Congress to take prompt action to help stem this tide of violence. The full Senate can begin to address this terrible and recurring problem by taking up and passing the School Safety and Law Enforcement Improvement Act of 2007, a legislative package that responds to the Virginia Tech tragedy and the ongoing problem of violence in our schools and in our communities. The Judiciary Committee passed this important bill out of committee over 4 months ago. In passing the bill out of the Judiciary Committee this past September, the committee attempted to show deference to Governor Kaine and the task forces at work in Virginia and 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 before the start of the academic year in the hope that the full Senate could pass these critical school safety improvements this fall. Regrettably, the bill has been stalled on the Senate floor. I urge those holding up its passage to consider that this administration has spent more than $15 billion to equip, train, and build facilities for the Iraqi security forces. Surely Congress can stand up for American kids who face unrelenting school violence by authorizing just a fraction of this money to reduce deadly violence in our schools and communities right here at home. I do not think the Senate should continue to stand by and wait for the next horrific school tragedy to make the critical changes necessary to insure safety in our schools and on our college campuses. The risk of school violence will not go away just because Congress may shift its focus. Since this bill passed out of committee, we have seen tragedy at Delaware State, University of Memphis, SuccessTech Academy in Cleveland, OH, as well as incidents in California, New York, Pennsylvania, and Oregon, to name just a few. I urge the Senate to move aggressively with the comprehensive school safety legislation. It includes background check improvements, together with other sensible yet effective safety improvement measures supported by law enforcement across the country. If we are prohibited by objection from doing so by unanimous consent, then let us move to it and let those with objections seek to amend those provisions to which they object. There are too many incidents at too many colleges and schools nationwide. This terrorizes students and their parents. We should be doing what we can to help. Several weeks ago, a troubled student wearing a Fred Flintstone mask and carrying a rifle through campus was arrested at St. John's University in Queens, NY, prompting authorities to lock down the campus for 3 hours. The day after that incident, an armed 17-year-old on the other side of the country in Oroville, CA, held students hostage at Las Plumas High School, also resulting in a lock-down. The incidents have continued with the arrest a few weeks ago of an armed student suspected of plotting a Columbine-style attack on fellow high school students in Norristown, PA. More recently, in Happy Valley, OR, police arrested a 10-year-old student who brought a semi-automatic weapon into his elementary school. The students in these situations were lucky and escaped without injury. University of Memphis student Taylor Bradford was not so lucky. He was killed on campus on September 30 in what university officials believe was a targeted attack. He was 21 years old. Shalita Middleton was not so lucky. She died on October 23 from injuries she sustained during the Delaware State incident. She was 17 years old. Nathaniel Pew was not so lucky. He was wounded at Delaware State. High school teachers Michael Grassie and David Kachadourian and students Michael Peek and Darnell Rodgers--all of whom were wounded by a troubled student at SuccessTech Academy on October 10--were not so lucky. The School Safety and Law Enforcement Improvement Act responds directly to incidents like these by squarely addressing the problem of violence in our schools in several ways. The bill enlists the States as partners in the dissemination of critical information by making significant improvements to the National Instant Background Check System, known as the NICS system. The bill also 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, title I 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 in 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. These improvements can save lives. After the four students and teachers were wounded at SuccessTech Academy, the press reported that parents had been petitioning to get a metal detector installed and additional security personnel added, and that the guard who was previously assigned to the school had been removed 3 years ago. In fact, the entire city of Cleveland has just 10 metal detectors that are rotated throughout the city's more that 100 schools. Title I of the bill would enhance the ability of school district to apply for and receive grant money to fund the installation of metal detectors and the training and hiring of security personnel to keep our kids safe. Over the past 4 years, this administration has spent over $15 billion to equip, train, and build facilities for the Iraqi security forces. Surely, Congress can stand up for American kids who face unrelenting school violence by supporting just a small fraction of this figure for much-needed school safety improvements. To address the new realities of campus safety in the wake of Virginia Tech and more recent college incidents, title I 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 $3 per student each year, it will enable schools to more effectively respond to dangerous situations on campus. Title II of the bill seeks to improve the NICS system. The senseless loss of life at Virginia Tech revealed deep flaws in the transfer of information relevant to gun purchases between the States and the Federal Government. The defects in the current system permitted the perpetrator of this terrible crime to obtain a firearm even though a judge had declared him to be a danger to himself and thus ineligible under Federal law. Seung-Hui Cho was not eligible to buy a weapon given his mental health history, but he was still able to pass a background check because data was missing from the system. We are working to close gaps in the NICS system. Title II will correct these problems, and for the first time will create a legal regime in which disqualifying mental health records, both at the State and Federal level, would regularly be reported into the NICS system. Title III would 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. Title IV of the bill makes improvements to the Law Enforcement Officers Safety Act of 2003. 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. Title V incorporates the PRECAUTION Act, which Senators Feingold and Specter asked to have included. This provision authorizes grants to develop prevention and intervention programs for our schools. Finally, Title VI incorporates the Terrorist Hoax Improvements Act of 2007, at the request of Senator Kennedy. Let us go forward and act now on this important bill. The Virginia Tech Review Panel--a body commissioned by Governor Tim Kaine to study the Virginia Tech tragedy--recently 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 planning and reporting information to NICS. We must not miss this opportunity to implement these initiatives nationwide, and to take concrete steps to ensure the safety of our kids. I recognize that there is no solution to fully end the sad phenomenon of school violence. But the recent tragedies should prompt us to respond in realistic and meaningful ways when we are presented with such challenges. I hope the Senate can promptly move this bill forward to invest in the safety of our students and better support law enforcement officers across the country.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I introduce legislation to create Federal Rule of Evidence 502. I am pleased that Senator Specter has joined me in this effort. After much study, several hearings, and significant public comment, the Judicial Conference's Standing Committee on Rules of Practice and Procedure, and the Advisory Committee on Evidence Rules, arrived at a proposed new rule that is intended to provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of email and other electronic media. I commend all of the judges, professors and practitioners who were involved in the rule's drafting and subsequent improvement for their hard work and attention to this issue. The legislation we are introducing today contains the text that the Judicial Conference recommends. Billions of dollars are spent each year in litigation to protect against the inadvertent disclosure of privileged materials. With the routine use of email and other electronic media in today's business environment, discovery can encompass millions of documents in a given case, vastly expanding the risks of inadvertent disclosure. The rule proposed by the Standing Committee is aimed at adapting to the new realities that accompany today's modes of communication, and reducing the burdens associated with the conduct of diligent electronic discovery. Our proposed legislation would set clear guidelines regarding the consequences of inadvertent disclosure of privileged material, and provides that so long as reasonable steps are taken in the prevention of such a disclosure, or to assure the prompt retrieval of disclosed information, no waiver will result. Moreover, an inadvertent disclosure of privileged information would not result in a broader subject matter waiver beyond the specific materials disclosed. If a disclosure of privileged material is made voluntarily, only the privilege associated with the voluntarily disclosed material is waived, and not other undisclosed related materials. But if voluntary disclosure of privileged material is done selectively in an effort to mislead or gain unfair advantage, then where fairness dictates, this will result in a subject matter waiver. This legislation would also provide that confidentiality agreements entered into by parties to litigation, and approved by the court, will bind all non-parties in other State or Federal litigation. This provision will add meaningful protection to parties entering confidentiality agreements and, along with other components of the proposed rule, will aid in reducing the burdens of excessive pre- production document review. Unlike other Federal court rules, any proposed rule that modifies an evidentiary privilege must be approved by Congress pursuant to the Rules Enabling Act. The modification of a privilege is an undertaking not to be approached lightly, and the process that resulted in proposed Rule 502 was thorough and thoughtful. It has resulted in widespread approval of the proposed rule from the bench and bar at both the State and Federal level. 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. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I introduce legislation to create Federal Rule of Evidence 502. I am pleased that Senator Specter has joined me in this effort. After much study, several hearings, and significant public comment, the Judicial Conference's Standing Committee on Rules of Practice and Procedure, and the Advisory Committee on Evidence Rules, arrived at a proposed new rule that is intended to provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of email and other electronic media. I commend all of the judges, professors and practitioners who were involved in the rule's drafting and subsequent improvement for their hard work and attention to this issue. The legislation we are introducing today contains the text that the Judicial Conference recommends. Billions of dollars are spent each year in litigation to protect against the inadvertent disclosure of privileged materials. With the routine use of email and other electronic media in today's business environment, discovery can encompass millions of documents in a given case, vastly expanding the risks of inadvertent disclosure. The rule proposed by the Standing Committee is aimed at adapting to the new realities that accompany today's modes of communication, and reducing the burdens associated with the conduct of diligent electronic discovery. Our proposed legislation would set clear guidelines regarding the consequences of inadvertent disclosure of privileged material, and provides that so long as reasonable steps are taken in the prevention of such a disclosure, or to assure the prompt retrieval of disclosed information, no waiver will result. Moreover, an inadvertent disclosure of privileged information would not result in a broader subject matter waiver beyond the specific materials disclosed. If a disclosure of privileged material is made voluntarily, only the privilege associated with the voluntarily disclosed material is waived, and not other undisclosed related materials. But if voluntary disclosure of privileged material is done selectively in an effort to mislead or gain unfair advantage, then where fairness dictates, this will result in a subject matter waiver. This legislation would also provide that confidentiality agreements entered into by parties to litigation, and approved by the court, will bind all non-parties in other State or Federal litigation. This provision will add meaningful protection to parties entering confidentiality agreements and, along with other components of the proposed rule, will aid in reducing the burdens of excessive pre- production document review. Unlike other Federal court rules, any proposed rule that modifies an evidentiary privilege must be approved by Congress pursuant to the Rules Enabling Act. The modification of a privilege is an undertaking not to be approached lightly, and the process that resulted in proposed Rule 502 was thorough and thoughtful. It has resulted in widespread approval of the proposed rule from the bench and bar at both the State and Federal level. 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. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, nothing is more fundamental to our system of justice than the tenet inscribed in Vermont marble on the supreme court building, that all people should receive ``equal justice under law.'' For more than 20 years, however, our Nation has tolerated a Federal cocaine sentencing policy that treats crack offenders more harshly than cocaine offenders. This policy has unacceptably had a disparate impact on people of color and the poor--without any empirical justification. Today, the U.S. Sentencing Commission took yet another important step in addressing the wide disparity in our Federal cocaine sentencing laws. By voting to change our Sentencing Guidelines to reduce the sentences of crack offenders currently incarcerated, the Commission took a moderate but significant step to reduce unwarranted sentencing disparities in Federal crack and powder cocaine laws. Their unanimous vote is consistent with the goals of the Sentencing Reform Act, including ``the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct'' and brings our Nation one step closer to a drug policy that is fair and equal for all Americans. The good news does not stop there. Just yesterday, in the landmark ruling of Kimbrough v. United States, the Supreme Court of the United States expanded the power of our Federal trial courts to address the unfair disparity in our Federal sentencing laws between crack and powder cocaine. By a vote of 7 to 2, the Court ruled that Federal judges may, in their discretion, consider this disparity and depart from a guideline sentence where the punishment is ``greater than necessary'' to serve Congress's objectives. Under current law, an offender apprehended with 5 grams of crack cocaine faces the same 5-year mandatory minimum sentence as an offender with 500 grams of powder cocaine. That means existing law gives the same sentence to a drug trafficker dealing crack cocaine as it would to one dealing 100 times more powder cocaine. This year, the Sentencing Commission has taken historic actions to address the unfairness and injustice of this disparity. The Commission held hearings and, after extensive study of this issue, reiterated its long-held position that crack cocaine penalties continue to disproportionately impact minorities and undermine various congressional objectives set forth in the Sentencing Reform Act. Next, the Commission attempted to correct this disparity and provide some relief to some crack cocaine offenders by recommending that all crack penalties be lowered by two base offense levels. Last month, Congress allowed this new Commission amendment--the so-called ``Crack Minus 2'' amendment--to be enacted in the Sentencing Guidelines. Today, the Sentencing Commission has taken yet another positive step. This amendment is consistent with Congress's intent in creating a sentencing guideline system. In its report to Congress, the Commission said that the Crack Minus 2 amendment was needed to address its long- held finding that ``the 100-to-1 drug quantity ratio (for crack cocaine) significantly undermines the various congressional objectives set forth in the Sentencing Reform Act.'' I agree. I join the chorus of our esteemed Federal judges, articulated in the Judicial Commission's testimony before the Sentencing Commission on this amendment, that fundamental fairness dictates that this amendment ``equally applies to offenders who were sentenced in the past as well as offenders [who] will be sentenced in the future.'' Fundamental fairness dictates that we undo past errors to build public confidence in the rule of law. Americans must have faith and confidence that our drug laws are fair and proportional, and a rule correcting a past injustice should be applied retroactively to restore that public confidence. The public's faith is even more critical in crack cocaine cases where 85 percent of the defendants are African Americans--a fact which only enhances the public perception that harsh and punitive sentences are imposed disproportionately on persons of color. Allowing judges to reconsider the sentences for crack offenders will not threaten public safety. As the Judicial Conference noted in its testimony before the Sentencing Commission, ``no offender would be eligible for release without judicial approval.'' This amendment allows judges the discretion to give a sentence outside of the Federal guidelines but does not mandate that such a sentence must be imposed. As chairman of the Senate Judiciary Committee, I have some experience with the people who serve our Nation in lifetime positions on the Federal bench. Unlike those who argue that the sky is falling, I have every confidence in the ability of our Federal judges to use this power sparingly and to provide a proper check when necessary to prevent the release of dangerous offenders back into our communities and neighborhoods. Most importantly, while I abhor the damage done by drug abuse, I also abhor that the penalties for those in the inner city are different than for those in affluent society. For 21 years, far too many African Americans and low-level drug offenders were subject to unfair and overly punitive Federal crack cocaine sentencing laws. With the Commission's amendment to reduce this disparity, we begin the process of healing wounds which have long shaken the public's confidence in our Federal drug policy. Applying this fix retroactively is only fair and just. The administration's failure to support retroactivity of even the slightest modification of crack penalties is both a surprise and a deep disappointment. I recall that 2 days before taking office, President Bush said that we should address this problem ``by making sure the powder cocaine and the crack cocaine sentences are the same.'' He also said, ``I don't believe we ought to be discriminatory.'' Yet his Justice Department has strongly opposed retroactive application of this crack cocaine reform amendment, even though failure to act would once again disparately impact African Americans, since an estimated 85 percent of those who would benefit from the policy are African Americans. The Justice Department's position would also erode public confidence that our drug laws are free from bias since previous drug reform amendments more likely to benefit Whites and Hispanics were made retroactive. Thankfully, the Sentencing Commission accepted the administration's view. Their decision today was unanimous. I hope the Attorney General will take notice and move to support drug laws that treat all Americans equally. While fundamental change will require congressional action, I salute the Sentencing Commission for its leadership on this issue. I urge my colleagues to support the Commission's decision and support additional changes to our laws to further reduce the disparity in our Federal cocaine sentencing laws. It is long past time for us to rectify this problem.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, I have joined with Senator Cornyn to reintroduce the ``Openness Promotes Effectiveness in our National Government Act--or the OPEN Government Act--the first major reform to the Freedom of Information Act, FOIA, in more than a decade. The Senate passed this historic FOIA reform legislation, S. 849, before adjourning for the August recess. But, sadly, this measure has been stalled in the House Oversight and Government Reform Committee for several months, preventing these long-overdue FOIA reforms from being enacted into law. Despite the unfortunate delay of this bill, I remain deeply committed to enacting FOIA reform legislation this year. Because time is of the essence, I am requesting that this legislation be immediately placed on the Senate Calendar and that the Senate promptly take up and pass this bill by unanimous consent, so that it can be sent to the House. The version of the bill introduced today includes ``pay/go'' language that has been requested by the House and eliminates the provision on citations to FOIA exemptions. After needlessly delaying the enactment of this bill for several months, I hope that the House Oversight and Government Reform Committee will promptly take up this important measure, so that the House can enact this legislation and send it to the President before the end of the year. 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 bill 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 requesters and Federal agencies with a meaningful alternative to costly litigation. Specifically, 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 allows Federal agencies to toll the 20-day clock while they are awaiting a response to a reasonable request for information from a FOIA requester on one occasion, or while the agency is awaiting clarification regarding a FOIA fee assessment. In addition, to encourage agencies to meet the 20-day time limit, the bill requires that an agency refund FOIA search fees if it fails to meet the 20-day deadline, except in the case of exceptional circumstances as defined by the FOIA statute. To address pay/go concerns, the bill requires that these refunds come from annual agency appropriations. The bill also addresses a relatively new concern that, under current law, Federal agencies have an incentive to delay compliance with FOIA requests until just before a court decision is made that is favorable to a FOIA requester. The Supreme Court's decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598, 2001, eliminated the ``catalyst theory'' for attorneys' fees recovery under certain Federal civil rights laws. When applied to FOIA cases, Buckhannon precludes FOIA requesters from ever being eligible to recover attorneys' fees under circumstances where an agency provides the records requested in the litigation just prior to a court decision that would have been favorable to the FOIA requestor. The bill clarifies that Buckhannon does not apply to FOIA cases. Under the bill, a FOIA requester can obtain attorneys' fees when he or she files a lawsuit to obtain records from the Government and the Government releases those records before the court orders them to do so. But this provision would not allow the requester to recover attorneys' fees if the requester's claim is wholly insubstantial. To address pay/go concerns, the bill also requires that any attorneys' fees assessed under this provision be paid from annually appropriated agency funds. 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 will appoint a Chief FOIA Officer, who will monitor the agency's compliance with FOIA requests, and a FOIA Public Liaison who will be available to resolve FOIA-related disputes. Finally, the bill does several things to enhance the agency reporting and tracking requirements under FOIA. Tracking numbers are not required for FOIA requests that are anticipated to take 10 days or less to process. The bill creates a tracking system for FOIA requests to assist members of the public and the media. The bill also establishes a FOIA hotline service for all federal agencies, either by telephone or on the Internet, to enable requestors to track the status of their FOIA requests. The bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. The Freedom of Information Act is critical to ensuring that all American citizens can access information about the workings of their government. But, after four decades, this open government law needs to be strengthened. I am pleased that the reforms contained in the OPEN Government Act will ensure that FOIA is reinvigorated so that it works more effectively for the American people. I commend the bill's chief Republican cosponsor, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year. I also thank the many cosponsors of this legislation for their dedication to open government and I thank the Majority Leader for his strong support of this legislation. I am also appreciative of the efforts of Senator Kyl in helping us to reach a compromise on this legislation, so that the Senate could consider and pass meaningful FOIA reform legislation. But, most importantly, I especially want to thank the many concerned citizens who, knowing the importance of this measure to the American people's right to know, have demanded action on this bill. This bill is endorsed by more than 115 business, public interest, and news organizations from across the political and ideological spectrum, including the American Library Association, the U.S. Chamber of Commerce, OpenTheGovernment.org, Public Citizen, the Republican Liberty Caucus, the Sunshine in Government Initiative and the Vermont Press Association. The invaluable support of these and many other organizations is what led the opponents of this bill to come around and support this legislation. I hope that by once again passing this important FOIA reform legislation, the Senate will reaffirm the principle that open government is not a Democratic issue or a Republican issue. But, rather, it is an American issue and an American value. I encourage all of my Senate colleagues, on both sides of the aisle, to unanimously pass this historic bill. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, I have joined with Senator Cornyn to reintroduce the ``Openness Promotes Effectiveness in our National Government Act--or the OPEN Government Act--the first major reform to the Freedom of Information Act, FOIA, in more than a decade. The Senate passed this historic FOIA reform legislation, S. 849, before adjourning for the August recess. But, sadly, this measure has been stalled in the House Oversight and Government Reform Committee for several months, preventing these long-overdue FOIA reforms from being enacted into law. Despite the unfortunate delay of this bill, I remain deeply committed to enacting FOIA reform legislation this year. Because time is of the essence, I am requesting that this legislation be immediately placed on the Senate Calendar and that the Senate promptly take up and pass this bill by unanimous consent, so that it can be sent to the House. The version of the bill introduced today includes ``pay/go'' language that has been requested by the House and eliminates the provision on citations to FOIA exemptions. After needlessly delaying the enactment of this bill for several months, I hope that the House Oversight and Government Reform Committee will promptly take up this important measure, so that the House can enact this legislation and send it to the President before the end of the year. 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 bill 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 requesters and Federal agencies with a meaningful alternative to costly litigation. Specifically, 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 allows Federal agencies to toll the 20-day clock while they are awaiting a response to a reasonable request for information from a FOIA requester on one occasion, or while the agency is awaiting clarification regarding a FOIA fee assessment. In addition, to encourage agencies to meet the 20-day time limit, the bill requires that an agency refund FOIA search fees if it fails to meet the 20-day deadline, except in the case of exceptional circumstances as defined by the FOIA statute. To address pay/go concerns, the bill requires that these refunds come from annual agency appropriations. The bill also addresses a relatively new concern that, under current law, Federal agencies have an incentive to delay compliance with FOIA requests until just before a court decision is made that is favorable to a FOIA requester. The Supreme Court's decision in Buckhannon Board and Care Home, Inc. v. West Virginia Dep't of Health and Human Resources, 532 U.S. 598, 2001, eliminated the ``catalyst theory'' for attorneys' fees recovery under certain Federal civil rights laws. When applied to FOIA cases, Buckhannon precludes FOIA requesters from ever being eligible to recover attorneys' fees under circumstances where an agency provides the records requested in the litigation just prior to a court decision that would have been favorable to the FOIA requestor. The bill clarifies that Buckhannon does not apply to FOIA cases. Under the bill, a FOIA requester can obtain attorneys' fees when he or she files a lawsuit to obtain records from the Government and the Government releases those records before the court orders them to do so. But this provision would not allow the requester to recover attorneys' fees if the requester's claim is wholly insubstantial. To address pay/go concerns, the bill also requires that any attorneys' fees assessed under this provision be paid from annually appropriated agency funds. 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 will appoint a Chief FOIA Officer, who will monitor the agency's compliance with FOIA requests, and a FOIA Public Liaison who will be available to resolve FOIA-related disputes. Finally, the bill does several things to enhance the agency reporting and tracking requirements under FOIA. Tracking numbers are not required for FOIA requests that are anticipated to take 10 days or less to process. The bill creates a tracking system for FOIA requests to assist members of the public and the media. The bill also establishes a FOIA hotline service for all federal agencies, either by telephone or on the Internet, to enable requestors to track the status of their FOIA requests. The bill also clarifies that FOIA applies to agency records that are held by outside private contractors, no matter where these records are located. The Freedom of Information Act is critical to ensuring that all American citizens can access information about the workings of their government. But, after four decades, this open government law needs to be strengthened. I am pleased that the reforms contained in the OPEN Government Act will ensure that FOIA is reinvigorated so that it works more effectively for the American people. I commend the bill's chief Republican cosponsor, Senator John Cornyn, for his commitment and dedication to passing FOIA reform legislation this year. I also thank the many cosponsors of this legislation for their dedication to open government and I thank the Majority Leader for his strong support of this legislation. I am also appreciative of the efforts of Senator Kyl in helping us to reach a compromise on this legislation, so that the Senate could consider and pass meaningful FOIA reform legislation. But, most importantly, I especially want to thank the many concerned citizens who, knowing the importance of this measure to the American people's right to know, have demanded action on this bill. This bill is endorsed by more than 115 business, public interest, and news organizations from across the political and ideological spectrum, including the American Library Association, the U.S. Chamber of Commerce, OpenTheGovernment.org, Public Citizen, the Republican Liberty Caucus, the Sunshine in Government Initiative and the Vermont Press Association. The invaluable support of these and many other organizations is what led the opponents of this bill to come around and support this legislation. I hope that by once again passing this important FOIA reform legislation, the Senate will reaffirm the principle that open government is not a Democratic issue or a Republican issue. But, rather, it is an American issue and an American value. I encourage all of my Senate colleagues, on both sides of the aisle, to unanimously pass this historic bill. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I suggest the absence of a quorum and the time during the quorum call be equally divided.

Mr. LEAHY. Mr. President, I ask unanimous consent that the vote that was scheduled for 2:15 occur at 2:30, and the 15 minutes between now and 2:30 be equally divided in the usual fashion.

Mr. LEAHY. Mr. President, as chairman of the Committee on the Judiciary, which has jurisdiction over our Nation's intellectual property laws, I feel compelled to comment on the intellectual property chapter of the United States-Peru Trade Promotion Agreement. In the Trade Promotion Authority Act of 2002, Congress instructed the administration to negotiate agreements with other nations that, among other things, reflect a standard of protection for intellectual property ``similar to that found in United States law.'' In many respects, the intellectual property chapter of the Peru Trade Promotion Agreement meets that goal, for it will require Peru to raise its standards of protection for our intellectual property. I am concerned, however, that some aspects of the intellectual property chapter prescribe the rules for protection so specifically that Congress will be hampered from making constructive policy changes in the future. The art of drafting the chapter is in raising intellectual property protections to a standard similar to ours, without limiting Congress's ability to make appropriate refinements to the intellectual property law in the future. The flexibility necessary for the proper balance is found in many provisions of the intellectual property chapter, for which I commend the U.S. Trade Representative. Other provisions, however, are too fixed and rigid, and may have the perverse effect of restricting the Congress's ability to make legitimate changes in United States law, while keeping our international commitments. I expect that in the future, with improved consultation between the Committee on the Judiciary and the Office of the United States Trade Representative, we can avoid these concerns. Our trade promotion law also instructed the administration to negotiate agreements that provide strong protection for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property. This, too, is an objective I support. Under our laws, many such new technologies and consumer devices rely, at least in part, on fair use and other limitations and exceptions to the copyright laws. Our trade agreements should promote similar fair use concepts, in order not to stifle the ability of industries relying on emerging technologies to flourish. Finally, a longstanding priority of mine has been the promotion of affordable, lifesaving medicines to address the public health problems afflicting many, primarily developing Nations--particularly those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics. The United States made such a commitment in the 2001 Doha Declaration; I was pleased that the U.S. Trade Representative reaffirmed this commitment in May and that Peru's rights to promote access to medicines is preserved in this agreement. There is much in the intellectual property chapter of this free trade agreement that I support. I look forward to the Judiciary Committee's being consulted by the Office of the U.S. Trade Representative earlier, and more frequently, in the future, so that we can continue to improve on these issues.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier this year I introduced a bipartisan measure to address the emerging staffing needs of the Federal Judiciary, our coequal branch of government. This bill responds to discrete situations in five States regarding temporary judgeships. In May, the Judiciary Committee voted unanimously to report this bill. It is now December. That is a delay of over 6 months. This sustained delay can be attributed to a ``hold'' by a single Republican Senator. I am glad that this hold has finally been lifted so that we can proceed. I am delighted that this bipartisan bill has finally been approved after such a needless delay. Had it been cleared for consideration earlier, the House could have acted before the Thanksgiving recess and the matter could be law. Instead, our proposal still needs to be considered by the House and presented to the President in order to take effect. In order to address fluctuations in a court's caseload, Congress can authorize a judgeship on a temporary basis. These temporary fixes do not undermine the independence that comes with lifetime appointment to the judiciary because the judges who fill them are, in fact, appointed for life, like all Federal judges. The positions are temporary in the sense that when they expire the next vacancy in the jurisdiction is not filled, and the extra judgeship expires. Last Congress, two of these needed temporary judgeships were allowed to expire. That was regrettable. One was in Nebraska and the other in California. That was unfortunate since they continue to have high case loads. This legislation restores the status quo in these busy districts by reauthorizing these two temporary judgeships. I know that Senators Feinstein, Boxer, Nelson and Hagel have been concerned about these caseloads, and thank them for working with me and for cosponsoring and supporting this bill to restore those judgeships. In addition, temporary judgeships in three other districts are close to expiration. Caseloads in Ohio, Hawaii and Kansas remain at a high level, and allowing their temporary judgeships to lapse would put a serious strain on courts in those jurisdictions. This legislation would extend each of the five temporary judgeships for 10 years. This will allow Congress some flexibility with regard to future judgeship needs. Senator Brownback has expressed his concerns about this to me, as has Mr. Regula in the House. I thank Senators Inouye, Akaka, Roberts, Brownback, Voinovich and Brown for cosponsoring and supporting this bill to extend those judgeships. Next year, I will work with my colleagues on both sides of the aisle to address judgeship needs in a comprehensive way. Indeed, I have asked six Senators who are members of the Judiciary Committee, three Democratic Senators and three Republican Senators, to serve as a task force and report a proposal to Senator Specter and me before the end of the year. I have asked Senator Schumer and Senator Sessions to head this task force, and look forward to their report next month. The five districts affected by this bill, however, cannot wait until next year for action on this extension or their temporary judgeships may well expire in the interim. This legislation will act as a ``patch,'' allowing these districts to effectively operate until we are able to determine what additional judgeships are needed throughout the Federal judiciary. The measure is supported by the Judicial Conference of the United States, and I thank my colleagues for moving this legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, as the Senate begins its final work period of the year, I want to thank those members of the Judiciary Committee who have been working so hard throughout this year in helping us fulfill our duties with respect to nominations. Given the work of the Senators serving on the Judiciary Committee, the Senate is in position to confirm 40 judicial nominees for lifetime appointments to the Federal bench this year, including 6 more of this President's circuit court nominees. The Senate has already acted to confirm 36 lifetime judicial appointments. Remaining on the Senate Executive calendar are the nominations of John Daniel Tinder to the Court of Appeals for the Seventh Circuit, Amul R. Thapar to the Eastern District of Kentucky, Joseph Normand Laplante to the District of New Hampshire, and Thomas D. Schroeder to the Middle District of North Carolina. When they are confirmed, and with the cooperation of Senators they can be confirmed this month, 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, we are proceeding on vacancies before they arise in some cases. When we conclude our work on judicial nominations this year, we will have exceeded the totals in 2004, 2005, or 2006 when a Republican-led Senate was considering this President's nominees. We are exceeding the totals confirmed in 1996, 1997, 1999 and 2000, when a Republican-led Senate was considering President Clinton's nominees. We are even exceeding the totals in 1989 and 1993 when a Democratic-led Senate was considering President Clinton's nominees. This year's total will be almost two dozen more confirmations than were achieved during the 1996 session when Republicans refused to proceed to confirm any of President Clinton's circuit court nominations. We continue to make progress on circuit court nominations. The six circuit court nominees confirmed this year matches the total circuit court confirmations for 2001. We will have exceeded the circuit court totals achieved in 2004 when a Republican-led Senate was considering this President's circuit nominees; in 1983, when a Republican-led Senate was considering President Reagan's nominees; in 1993, when a Democratic-led Senate was considering President Clinton's nominees; and, of course, the 1996 session during which a Republican-led Senate did not confirm a single one of President Clinton's circuit nominees the entire session. 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. To reward me for reaching out again and extending the olive branch to him, this President responded not by replying to my letter but by a much ballyhooed partisan speech before the Federal Society annual dinner. 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 both respected Virginia Senators, 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. In addition, we have succeeded in dramatically lowering vacancies and, in particular, circuit 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. Of the remaining vacancies, 20--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 8, nearly half of them. Of the 14 circuit court vacancies, 4--about one-third-- are without a nominee. If the President would 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 vacancies without any nominee, the President has violated the timeline he set for himself at least 12 times--12 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 13 times in connection with the nominations he has made. That would mean that with respect to approximately 46 vacancies, the President is out of compliance with his own rule more than half of the time. So I thank the members of the Judiciary Committee for their hard work considering these important nominations. I thank especially those Senators who have given generously of their time to chair confirmation hearings throughout the year.

Mr. LEAHY

Mr. LEAHY. Mr. President, as the Senate begins its final work period of the year, I wish to thank those members of the Judiciary Committee who have been cooperative and who have worked so hard throughout this year. Much has been accomplished. But much can still be done. We reported and the Senate passed an important privacy measure, the Identity Theft Enforcement and Restitution Act, S. 2168, just before the Thanksgiving recess. I urge the House to adopt it without delay. In addition, the Senate again passed our copyright bill to protect vessel hull designs, S. 1640, which I hope will also be adopted by the House. Months ago we reported and passed an important court security bill, S. 378, and Freedom of Information Act reform legislation, S. 849. I believe that we have resolved differences raised by the House and should be able in the short time remaining to us this year to have the Senate reconsider these measures in slightly modified form, pass them by unanimous consent, and have the House endorse them, as well. I would like to see us consider and pass important matters the House has passed and sent to us. The Free Flow of Information Act, H.R. 2102, is on the Senate calendar. It would provide protection to first amendment values by establishing a Federal privilege and procedure for considering claims of press protection. For the first time, this year the Judiciary Committee reported a similar bill, S. 2035, and we did so on a bipartisan basis. We should proceed to enact this legislation into law. Another important matter sent to us from the House that I would hope we could enact before adjourning this year is one on which we have worked for some time, the Employment Non-Discrimination Act, H.R. 3685. We also have before us a House-passed version of the Second Chance Act, H.R. 1593. While it does not include every provision I would have liked to incorporate, we should nonetheless proceed to enact this legislation. I urge the Republican Senator who has a hold on the bill to extend temporary judgeships around the country, S. 1327, to remove this hold so that we can provide the relief needed in our Federal judiciary in Kansas, Ohio, Nebraska, California, and Hawaii. Enacting court security legislation will likewise require the relinquishing of a Republican hold. Another matter stalled since this summer by a Republican hold has been the Emmett Till Unsolved Civil Rights Crime Act, S. 535. I have made statements to the Senate about these consensus measures before. I hope that with the year rapidly ending, the Republican Senator holding up these worthwhile matters will reconsider the opposition and allow bills supported by an overwhelming, bipartisan majority of the Senate to pass. A number of other measures reported by the Judiciary Committee have been delayed by Republican holds too. If it is not possible to move these measures this month, I urge the Senate to take up and pass these bills when it begins its second session in January. One such bill is the War Profiteering Prevention Act, S. 119, which was reported by the committee in April. It would provide a significant new tool for Federal law enforcement to combat the scourge of war profiteering, and it is needed now more than ever, given the ongoing reports of rampant fraud, waste, and abuse in Iraq. Another is the School Safety and Law Enforcement Improvements Act, S. 2084, which we developed in response to the tragedy at Virginia Tech. When we return next year, we will have the opportunity to consider and enact patent reform legislation, the Leahy-Hatch Patent Reform Act of 2007, S. 1145. I hope that we will also make time to consider our comprehensive bipartisan data privacy bill, the Leahy-Specter Data Privacy and Security Act, S. 495, which we reported in May. Next spring I hope we can turn to the Deceptive Practices and Voter Intimidation Prevention Act, S. 453, which the committee reported this fall, and our bipartisan Leahy-Cornyn Public Corruption Prosecution Improvements Act, S. 1946, that adds teeth to our ethics reforms. These are just some of the matters on which the Judiciary Committee has been hard at work this year. We could not have accomplished what we have without the contributions of our members. I want, in particular, to commend our newest members, Senators Cardin and Whitehouse, for their exceptional work. They have initiated legislative efforts, chaired important hearings, and been full partners in the work of the committee. I would also like to thank and commend Senator Durbin for chairing our newest subcommittee, the Subcommittee on Human Rights and the Law, and for making it one of the most active and productive subcommittees we have. Senator Durbin has originated genocide accountability and child soldier accountability legislation, trafficking in persons legislation, and war crimes legislation, all in rapid succession. He has made the Human Rights Subcommittee into what we hoped it would be, a vehicle to focus our attention on fundamental aspects of what makes us all Americans. We all owe him a debt of gratitude. Of course, we would not be nearly as far along in our work without the help of our Republican members, led by Senator Specter. We have proceeded with significant bipartisan legislation on privacy, press shield, patents, FOIA, public corruption, and crime. Currently we are working together to improve the FISA legislation about to be considered by the Senate by exploring whether we can adopt an amendment that will increase accountability through the procedural device of substitution, rather than a blanket grant of retroactive immunity for the warrantless wiretapping of Americans that took place from 2001 through 2007. Senator Specter and I joined to seek to restore the great writ of habeas corpus but, despite support by a majority of the Senate, we were stymied by a Republican filibuster. Likewise, we have joined to achieve majority support for voting rights for the District of Columbia only to be blocked this year by another Republican filibuster. I hope that as we enter these last few weeks of the year, we are allowed to make progress on the matters I have outlined here today and that the obstruction that has stalled our further progress will not be continued. Let us move forward together in the best interest of the American people. Any Senator can prevent action on an item in these waning days of the session. There is no secret or magic about that. The question for Senators this month is whether they are willing to put aside minor differences and partisan agendas to join with us in making progress and moving forward. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that we can take a break from the tired, partisan sniping from the other side of the aisle. With the consideration of this nomination the Senate continues making progress confirming judicial nominations. The complaints we hear more and more loudly as we approach an election year ring hollow. The Judiciary Committee has now reached a milestone by agreeing to report 40 nominations for lifetime appointments to the Federal bench this year. That exceeds the totals reported in each of the previous 2 years, when a Republican-led Judiciary Committee was considering this President's nominees. Today we consider one of the nominations reported this week. Reed Charles O'Connor has been nominated to fill a vacancy in the Northern District of Texas. Reed is well known to many of us on the Judiciary Committee as he has been on detail for the last two years to serve as Senator Cornyn's counsel on the committee and before that with the Republican staff of the committee. Before that, Reed spent a year on detail with the general counsel's office of the Executive Office of United States Attorneys. With his confirmation, Reed will return home to Texas, where he previously served as an Assistant U.S. Attorney for the Northern District of Texas and before that as an Assistant District Attorney in Tarrant County District Attorney's Office in Fort Worth. Born in Houston, Reed graduated from the University of Houston in 1986 and the South Texas College of Law in 1989. I thank Senator Cornyn and Senator Hutchison for their consideration of this nomination and Senator Whitehouse for chairing his confirmation hearing. When we confirm the nomination we consider today, the Senate will have confirmed 36 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 1997, 1999, 2004, 2005 or 2006. It is 19 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. When this nomination is confirmed, the Senate will have confirmed 136 total Federal judicial nominees in my tenure as Judiciary chairman. 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. The Administrative Office of the U.S. Courts will list 46 judicial vacancies and 14 circuit court vacancies after today's confirmation. 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 vacancies that arose at the beginning of the 110th Congress and throughout the year, the current vacancy totals under my chairmanship of the Judiciary Committee are below where they were under a Republican led-Judiciary Committee. They are about half what they were at the end of President Clinton's term, when Republican pocket filibusters allowed judicial vacancies to rise to top 100 before being left at 80, 26 of them for circuit courts. This week, while the White House was complaining about nominations, I was sending a letter to the President 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 Senator Webb, a Democrat, and Senator Warner, a Republican. They had submitted a list of five recommended nominations, and specifically warned the White House not to nominate Mr. Getchell. When the President consults and sends well-qualified, consensus nominations, we can work together and continue to make progress as we are today. I congratulate Reed and his family on his confirmation today.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the text of the joint resolution be printed in the Record.