Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, as we resume consideration of judicial nominations today, it is worth taking stock of the mileposts we have passed and those we are working toward. Chairman Specter has now chaired the Judiciary Committee for 17 months. I congratulate him on that. The committee has been extremely active, and we have achieved a good deal working together. We reported a bill to provide compensation to asbestos victims and began its consideration in the Senate. Just recently, we joined together to introduce a new version of our legislation, to note the passing of our friend Judge Becker and to recommit ourselves to finishing this bipartisan task to provide fair compensation to asbestos victims and reduce the litigation burden that asbestos cases have imposed on our civil justice system. We worked together to report a comprehensive immigration reform bill and continued to work with Senators Kennedy, McCain, Hagel, Martinez, and others in a bipartisan coalition that culminated in Senate passage of S. 2611 late last month. We look forward to help from the President to enact that measure later this year. We worked together to revive and reauthorize the expiring provisions of the USA PATRIOT Act. I supported the Judiciary Committee and Senate bill. When our bill was hijacked, I appreciated Chairman Specter's efforts to restore some balance and his efforts to work with those of us seeking improvements. Sadly, the final product insisted upon by the Bush-Cheney administration and House Republicans was not one I could support. We are working together now in a bipartisan, bicameral partnership to reauthorize the expiring provisions of the Voting Rights Act. We need to complete hearings on our bill without further delay, and I hope that we can report our bipartisan bill by mid-June so that these important provisions, including those in section 203 providing voting access for language minorities, can be reauthorized this year. We worked together to report privacy legislation to the Senate last November. Senate action on our bill is overdue. The recent theft of millions of veterans' personal information and the growing problem of identification theft remind us how important these issues are for so many Americans. We have also worked together on competitiveness issues including the NOPEC legislation to clarify that our antitrust laws should be applied to the OPEC cartel, our broader bill on windfall oil company profits, and our bill to end the antitrust exemption for the insurance industry. We have made progress on several issues, but our work is far from over. There are only 13 weeks left in this legislative session of the Senate and we still have much that needs to get done. The Republican- controlled House and Senate have yet to enact a Federal budget and are in violation of the statutory deadline of April 15. We have yet to pass a single appropriations bill, and we are required by law to pass 13. We have yet to reconcile and enact the emergency supplemental appropriations bill that has been pending for months and that includes funding for Iraq and Katrina victims and other matters. We have yet to reconcile and enact lobbying reform and ethics legislation. We have yet to deal with the skyrocketing cost of gasoline. We have yet to reconcile and enact a bipartisan and comprehensive immigration reform bill. We need to enact stronger privacy protection legislation, especially in the wake of the theft of information on more than 26 million veterans. We have yet to enact stem cell research legislation. We need to reauthorize the Voting Rights Act. We have yet to enact patent reform legislation. And I hope that we will take up, pass and enact our asbestos compensation legislation and my measure to speed lifesaving medicine to those in desperate need. I have urged that we exercise effective oversight of the executive branch, and I have supported Chairman Specter's efforts to get to the bottom of the NSA's unprecedented program of domestic spying on Americans without warrants. We need to make more progress on this important front and to restore accountability and check and balances in our Government. One of the most important checks and balances to unprecedented overreaching by the Bush-Cheney executive branch is an independent judiciary. With respect to judicial nominations, we worked together in connection with the nominations of Chief Justice Roberts, whom I came to support, and Justice Alito, whom I did not. I have sought to expedite consideration of qualified, consensus nominees and urged the President to work with us to make selections that unite all Americans. Today we will proceed to confirm another lifetime appointment to the Federal courts in New Jersey. With the support of the New Jersey Senators, we were able to confirm Judge Susan Davis Wigenton just before the last recess. Her nomination, as well as the nomination of Renee Marie Bumb that we are considering today, were reported favorably by the Judiciary Committee to the Senate more than a month ago. Rather than proceed to those nominations promptly, the Republican leadership of the Senate delayed their consideration while proceeding over time with circuit court nominations. I was cooperative in proceeding to the confirmation of Judge Milan Smith to the Ninth Circuit. His confirmation demonstrated, again, that we can work together. I was pleased for his brother, the Senator from Oregon, and believe that he will be a fine judge. Regrettably, the Senate Republican leadership chose not to move to any of the four district court nominations from New Jersey, or the two nominations to district courts in Michigan that their home State Democratic Senators have reached out to support. Instead, they forced debate on another controversial nomination, that of a White House insider selected for a lifetime position on the DC Circuit as a reward for his loyalty to President Bush. I did not support confirmation of Brett Kavanaugh. That was the fight that the Republican leader had promised the narrow special interest groups of the rightwing of his party. The President and Senate Republican leadership continue to pick fights over judicial nominations rather than focus on filing vacancies. Judicial vacancies have now grown to more than 50 from the lowest vacancy rate in decades. More than half these vacancies are without a nominee. The Congressional Research Service has recently released a study showing that this President has been the slowest in decades to nominate and the Republican Senate among the slowest to act. If they would concentrate on the needs of the courts, our Federal justice system and the needs of the American people, we would be much further along. Still, we have passed a milestone. When the Senate votes today to confirm Renee Bumb as a district court judge, the Republican-controlled Senate will have this year confirmed 17 judicial nominations. That was the total number of judges confirmed in the 1996 congressional session, when Republicans controlled the Senate and stalled the nominations of President Clinton. In the 1996 session, however, Republicans would not confirm a single appellate court judge. All 17 confirmations were district court nominees. That is the only session I can remember in which the Senate has simply refused to consider a single appellate court nomination. That was part of their pocket filibuster strategy to stall and maintain vacancies so that a Republican President could pack the courts and tilt them decidedly to the right. In the important DC Circuit, the confirmation of Brett Kavanaugh was the culmination the Republicans' decade-long attempt to pack the DC Circuit that began with the stalling of Merrick Garland's nomination in 1996 and continued with the blocking of President Clinton's other well-qualified nominees, Elena Kagan and Allen Snyder. Of course, with the confirmation today, we will tie that record of 17 confirmations for the year. It is June, and we have a few more weeks in which to make progress. There remain four more district court nominees on the calendar whose consideration could be scheduled for debate and vote but are being delayed--not by Democratic opposition--but by Republican control. There is also another circuit court nominee on the calendar who was reported with Democratic support from the Judiciary Committee and whose confirmation could be scheduled for debate and vote. Successful consideration of those five additional nominees will bring the Senate's total judicial confirmations to 22, thereby matching the total achieved all last year. But the road ahead is likely to be rocky. In the runup to the Kavanaugh nomination debate, we saw that the Senate Republican leadership is apparently heeding the advice of The Wall Street Journal editorial page, which wrote, ``[a] filibuster fight would be exactly the sort of political battle Republicans need to energize conservative voters after their recent months of despond.'' Rich Lowery, editor of the conservative National Review, listed a fight over judges as one of the ways President Bush could revive his political fortunes, writing that he should, ``[p]ush for the confirmation of his circuit judges that are pending. Talk about them by name. The G.O.P. wins judiciary fights.'' Republican Senators are relishing picking fights over controversial judicial nominees. Senator Thune has said, ``A good fight on judges does nothing but energize our base . . . . Right now our folks are feeling a little flat.'' Senator Cornyn has said, ``I think this is excellent timing. From a political standpoint, when we talk about judges, we win.'' On May 8, 2006, The New York Times reported: ``Republicans are itching for a good election-year fight. Now they are about to get one: a reprise of last year's Senate showdown over judges.'' The Washington Post reported on May 10: ``Republicans had revived debate on Kavanaugh and another Bush appellate nominee, Terrence Boyle, in hopes of changing the pre-election subject from Iraq, high gasoline prices and bribery scandals.'' We should not stand idly by as Republicans choose to use lifetime federal judgeships for partisan political advantage. In a May 11, 2006, editorial The Tennessean wrote: ``[T]he nation should look with complete dismay at the blatantly political angle on nominations being advocated by Senate Republicans now. . . . Republicans are girding for a fight on judicial nominees for no reason other than to be girding for a fight. They have admitted as much in public comments. . . . In other words, picking a public fight over judicial nominees is, in their minds, the right thing to do because it's the politically right thing to do. . . . Now, Republicans are advocating a brawl for openly political purposes. The appointment of judges deserves far more respect than to be an admitted election-year ploy. . . . It should be beneath the Senate to have such a serious matter subjected to nothing but a tool for political gain.'' On May 3, 2006, The New York Times wrote in an editorial: ``The Republicans have long used judicial nominations as a way of placating the far right of their party, and it appears that with President Bush sinking in the polls, they now want to offer up some new appeals court judges to their conservative base.'' Consider the President's nomination of Judge Terrence Boyle to the Fourth Circuit. We have learned from recent news reports that, as a sitting U.S. district judge and while a circuit court nominee, Judge Boyle ruled on multiple cases involving corporations in which he held investments. In at least one instance, he is alleged to have bought General Electric stock while presiding over a lawsuit in which General Electric was accused of illegally denying disability benefits to a long-time employee. Two months later, he ruled in favor of GE and denied the employee's claim for long term and pension disability benefits. Whether it turns out that Judge Boyle broke Federal law or canons of judicial ethics, these types of conflicts of interest have no place on the Federal bench. Certainly, they should not be rewarded with a promotion to the Fourth Circuit. Certainly, they should be investigated. The President should heed the call of North Carolina Police Benevolent Association, the North Carolina Troopers' Association, the Police Benevolent Associations from South Carolina and Virginia, the National Association of Police Organizations, the Professional Fire Fighters and Paramedics of North Carolina, as well as the advice of Senator John Edwards, and withdraw his ill-advised nomination of Judge Terrence Boyle. Law enforcement from North Carolina and law enforcement from across the country oppose the nomination. Civil rights groups oppose the nomination. Those knowledgeable and respectful of judicial ethics oppose this nomination. This nomination has been pending on the calendar in the Republican-controlled Senate since June of last year when it was forced out of the Committee on a party-line vote. It should be withdrawn. Also on the calendar is the nomination of William Myers to the Ninth Circuit. This is another administration insider and lobbyist whose record has made him extremely controversial. I opposed this nomination when it was considered by the Judiciary Committee in March 2005. He was a nominee who the so-called Gang of 14 expressly listed as someone for whom they made no commitment to vote for cloture, and with good reason. His anti-environmental record is reason enough to oppose his confirmation. His lack of independence is another. If anyone sought to proceed to this nomination, there would be a need to explore his connections with the lobbying scandals associated with the Interior Department and Jack Abramoff. This nomination should also be withdrawn. A few months ago, the President withdrew the nomination of Judge James Payne to the Court of Appeals for the 10th Circuit after information became public about that nominee's rulings in a number of cases in which he appears, like Judge Boyle, to have had conflicts of interest. Those conflicts were pointed out not by the administration's screening process or by the ABA but by journalists. Judge Payne joins a long list of nominations by this President that have been withdrawn. Among the more well known are Bernard Kerik to head the Department of Homeland Security and Harriet Miers to the Supreme Court. It was, as I recall, reporting in a national magazine that doomed the Kerik nomination. It was opposition within the President's own party that doomed the Miers nomination. During the last few months, President Bush also withdrew the nominations of Judge Henry Saad to the Court of Appeals for the Sixth Circuit and Judge Daniel P. Ryan to the Eastern District of Michigan after his ABA rating was downgraded. It is not as if we have not been victimized before by the White House's poor vetting of important nominations. If the White House had its way, we would already have confirmed Claude Allen to the Fourth Circuit. He is the Bush administration insider who recently resigned his position as a top domestic policy adviser to the President. Ultimately, we learned why he resigned when he was arrested for fraudulent conduct over an extended period of time. Had we Democrats not objected to the White House attempt to shift a circuit judgeship from Maryland to Virginia, someone now the subject of a criminal prosecution for the equivalent of stealing from retail stores would be a sitting judge on the Fourth Circuit confirmed with a Republican rubberstamp. Yet another controversial pending nomination is that of Norman Randy Smith to the Ninth Circuit. This nomination is another occasion on which this President is seeking to steal a circuit court seat from one State and reassign it to another one, one with Republican Senators. That is wrong. I support Senators Feinstein and Boxer in their opposition to this tactic. I have suggested a way to resolve two difficult situations if the President were to renominate Mr. Smith to fill the Idaho vacancy on the Ninth Circuit, instead of a vacancy for a California seat. Regrettably, the White House has not followed up on my suggestion. A complicit Republican-controlled Senate remains all too eager to act as a rubberstamp for the Bush-Cheney administration. The nomination of Kavanaugh was one of the few to be downgraded by the ABA upon further review. Until the Republican-controlled Senate proceeded to confirm this White House insider, I cannot recall anyone being confirmed after such a development. Another first, and another problematic confirmation that ill serves the American people. Another troubling nomination is that of William James Haynes to the Fourth Circuit, which has been pending in the Republican-controlled Senate without action for 3 years. Mr. Haynes is the general counsel at the Defense Department and was deeply involved developing the torture policies, detention and interrogation policies, military tribunals, and other controversial aspects of the manner in which this administration has proceeded unilaterally to make mistakes and exceed its legal authority. Concerns about the Haynes nomination may not be confined to Democratic Senators, according to recent press reports. I trust that the Senate will not repeat the mistake it made before. It was only after Jay Bybee was confirmed to a lifetime appointment to the Ninth Circuit that we learned of his involvement with the infamous Bybee memo seeking to justify torture and degrading treatment. I had asked him what he had worked on while head of the Department of Justice's Office of Legal Counsel, but he had refused to respond. This former Defense Department and Justice Department insider now sits on the Ninth Circuit for life. Finally, there is the more recent nomination of Michael Wallace to a vacancy on the Fifth Circuit. Mr. Wallace received the first ABA rating of unanimously ``not qualified'' that I have seen for a circuit court nominee since President Reagan. Yet that is one of the controversial nominations we can expect the Republican Senate to target for action given their track record. Working together we could do better. I made the point when in the 17 months I chaired the Judiciary Committee we proceeded to confirm 100 judicial nominees of President Bush. I urge the White House to work with us. I hope that the Republican-controlled Senate will stop rubberstamping this President's nominees and stop using controversial judicial nominations to score partisan political points. Our courts are too important. The rights and liberties of the American people are too important. The courts are the only check and balance left to protect the American people and provide some oversight of the actions of this President. I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, while the Senate, with the encouragement of a White House in full campaign mode, debates a constitutional amendment to ban gay marriage--a debate which will consume days of the Senate's time and is all about scoring political points in an election year--the disaster in Darfur rages on. It has been nearly 4 weeks since a peace agreement was signed between the Sudanese Government and one of the rebel groups, but violence, hunger and disease continue to claim innocent lives. Jan Egeland, United Nations Under-Secretary General for Humanitarian Affairs, recently described the humanitarian situation in Darfur as being on the verge of collapse. In the midst of this calamity, the Senate is focused on other matters. Gay marriage. Next it will be flag burning. And then full repeal of the estate tax, to benefit the wealthiest of the wealthy. Solutions in search of a problem, while whole villages burn, their inhabitants are slaughtered, and relief organizations in Darfur struggle to cope without adequate resources. Between a quarter of a million and half a million people have perished in Darfur--mostly civilians whose villages have been reduced to ashes. Many, who escaped being shot or hacked to death, have died from hunger and disease. The Sudanese Government has obstructed the deployment of a U.N. peacekeeping force in Darfur. The African Union has done its best, but with only 7,000 troops, inadequate resources, and a weak mandate to patrol a vast area with few roads, it has been unable to provide civilians with the protection they need. I am so very proud that two high school students in Vermont are setting a moral example for all Americans. Ben Rome and Brian Banks, seniors at Essex High School, outraged over the tragedy that is unfolding half a world away, felt compelled to do something about it. They have organized a public rally in Burlington, VT, for this coming Sunday to bring Vermonters together to speak out about one of the worst human disasters in recent memory. I look forward to joining Ben and Brian and other concerned Vermonters this weekend. The supplemental appropriations bill for Iraq, Afghanistan, Hurricane Katrina recovery, and Sudan, which should be completed this week--and I hope we can find the time to pass it--contains additional funds to support the current level of peacekeepers in Darfur through the remainder of this year. This will help, but twice that amount is needed. The supplemental also provides additional funds for food and other humanitarian aid. It should shame the White House and the Congress to reflect on the fact that we know we are not doing enough. We also provide funds to support a Presidential special envoy for Sudan, to work in pursuit of peace in Darfur and stability throughout Sudan, northern Uganda, and Chad. We need someone of the caliber of Senator Danforth to be working continuously to help solve the Darfur crisis. A tragedy like this is bigger than any of us as individuals, but it is not too big if we join together in constructive action--as individuals, as private relief organizations, and as nations. America is a great and good nation with the power to help stop this. But it will take sustained attention, and it will take the efforts of committed citizens like Brian Banks and Ben Rome who, one by one, are opening the world's eyes to a tragedy that must be stopped.

Mr. LEAHY

Mr. LEAHY. Mr. President, when we began this debate on Monday afternoon I referred to the important discussion that occurred in Vermont several years ago. In that statement I referred to the extraordinary example set of Senator Robert Stafford. I will ask that the Rutland Herald editorial from November 2, 2000, entitled ``Stafford's Gift,'' be printed in the Record. This editorial memorializes the bipartisan call for respect and tolerance to which Vermonters responded. Senator Jeffords and I were honored to join Senator Stafford in rejecting vitriolic attacks during Vermont's experience with this debate. The Rutland Herald's series of civil editorials that examined these issues during Vermont's debate earned the Pulitzer Prize for the newspaper and its editorial page editor, David Moats. The fairness and equality that resulted from passage of Vermont's civil union law has not threatened the marriages of the Green Mountain State or any other State in this country. It has not led to the parade of horribles threatened by the proponents of this divisive constitutional amendment. Recently, I was contacted by a number of physicians in Vermont who voiced their strong opposition to the constitutional amendment that we are debating. These pediatricians are concerned that the proposed amendment will deprive children ``of the benefits of both parents being able to provide health insurance, take time off from work to care for their children, authorize medical care, or stay with their children in the hospital.'' I will ask that their letter be printed in the Record. Hundreds of thousands of American children are being raised by committed same-sex couples. I am gravely concerned that the so-called Marriage Protection Amendment would prevent States from providing benefits and protections to these dedicated parents and their families. I ask unanimous consent to include two recent editorials opposing the proposed amendment from the Brattleboro Reformer from May 24, 2006, and the Rutland Herald from June 6, 2006, in addition to the aforementioned materials.

Mr. LEAHY. Mr. President, as I listen to the debate over this constitutional amendment, I am struck by the circular and contradictory arguments offered by some supporters of this measure. It is clear even to a casual listener that the arguments from some proponents of this effort to use the Constitution to restrict individual freedom for the first time ever actually make the case for why there is no necessity for it. They must acknowledge that the Federal Defense of Marriage Act remains on the books and has been upheld by every Federal court that has considered it, including the Ninth Circuit Court of Appeals. Their talking points proclaim that 45 States already passed legislation or contain provisions in their State constitutions that define marriage as a union between a man and a woman. They point out that 19 States have in the last 10 years passed referendums to amend their State constitutions and that decisive majorities approved a definition of marriage. These arguments beg the question as to why we are spending several days of a waning session on an amendment that is not only divisive but also unnecessary. To propose a constitutional amendment, two-thirds of each House of Congress must ``deem it necessary.'' That is the constitutional standard for proposing a constitutional amendment. How, in light of this record, could Senators who value individual liberty, respect the States, and understand the Constitution vote any way other than against proceeding to this measure? The Constitution is not some all-purpose bulletin board on which to hang political posters or to post bumper stickers. Our Constitution is the foundation of our rights and freedoms. The Bill of Rights, the first 10 amendments to the Constitution, were adopted to ensure limits on the Government and to protect the liberties of Americans. Vermont did not and would not become a State until 1791, the year the Bill of Rights was ratified. The structure of the Constitution, with its separation of powers and checks and balances, was designed by the Founders to protect our rights. Sadly, the Bush-Cheney administration, with the acquiescence of a Republican Congress, has done much to remove those protections to the detriment of the rights of all Americans. In this regard, I note the recent report of the CATO Institute entitled, ``Power Surge: The Constitutional Record of George W. Bush.'' This report criticizes this administration for not upholding the text, history, and structure of the Constitution and recognizing the limits on Presidential power. As congressional Republicans have returned time and again to use constitutional amendments as election year rallying cries to excite the passions of some voters, those in Congress who respect the Constitution and honor our oath of office to ``support and defend the Constitution of the United States'' are cast in the unpopular role of seeking to conserve the Constitution and constitutional principles in the face of demagogic proposals. Several years ago a bipartisan group was formed to inject some reason into these debates. The Constitution Project has worked long and hard to develop guidelines for when constitutional amendments are appropriate. They have noted: ``The Founders created a Constitution that is difficult to amend, thus insuring a stable constitutional structure. In The Federalist No. 47, James Madison highlighted this very point. He argued that the Constitution should only be altered on `great and extraordinary occasions.' '' Proponents have not shown how this proposal meets those sensible guidelines, nor could they. Recently, the CATO Institute and the Center for American Progress jointly held a symposium lending further support to rejecting this proposed amendment for a variety of reasons from across a wide spectrum of opinion. All this raises the obvious question why this is the Republican leadership's priority in the face of an unfinished agenda of legislative matters that deeply concern Americans, ranging from escalating gas prices and health care costs to the ongoing violence in Iraq to homeland security. While the news articles and editorials characterizing this effort as crassly political are too numerous to include in the Record, I do ask consent to include a few that are representative. I ask that copies of the USA Today editorial from June 1, 2006, the New York Times editorials of June 5 and June 1, 2006, and the Washington Post editorial of May 24, 2006, be printed in the Record.

Mr. LEAHY

Mr. LEAHY. We have no objection.

Mr. LEAHY

Mr. LEAHY. Not surprisingly, those letters have gone unanswered. In fact, the administration didn't even send a representative to any of the committee hearings that the Judiciary Committee had on this amendment, nor did the administration comment on the specifics of the current proposal or respond to questions about its language. The general endorsement of the Bush-Cheney administration has been more in the nature of a political campaign, more of a signal than of substance. We could use a lot more substance up here and a few less signals. The President's recent statements on Saturday and at the rally today, adjacent to the White House, remain general and vague. After the last campaign and his reelection, the President indicated that he had no intention of including such an amendment among his administration's top priorities. He had no intention of pressing Congress to approve it. Suddenly, we are away from that election, we are approaching another election. Golly gee whiz, what has changed? What has changed in that time? Well, his standing in the public opinion polls, for one; or the agitation of the right-wing elements of his base, which he always responds to. I remember a time when leaving States in control of issues of family law was an easy decision for Members of both sides of the aisle to make. It is disappointing that Senators would endorse this broadly drafted amendment, which so clearly violates the traditions of Federalism and local control that many in this body have claimed to respect and cherish. As prominent conservative and former Congressman Bob Barr put it, ``Marriage is a quintessential State issue. The Defense of Marriage Act goes as far as is necessary in codifying the Federal legal status and parameters of marriage. A constitutional amendment is both unnecessary and needlessly intrusive and punitive.'' This reminds me of last year when we were called into emergency session after highly competent courts had thoroughly reviewed the medical decisions in the Terry Schiavo case. They spent months, even years, doing that. But we were called into emergency session, and the President flew back from his vacation so we could pass in a couple of hours something to overturn all those courts. We even had diagnoses made from the floor of the Senate that she was not in a vegetative state. This is a family tragedy. We should have left it alone instead of grandstanding--grandstanding--on a political issue where we are not about to change anything. The American people saw through that grandstanding. They realized this is something to be left to a family going through a terrible tragedy. As we know, she was in a vegetative state; an irreversible vegetative state. So I couldn't help but wonder: What has happened to conservatives who would oppose the Federal Government's intrusion on the prerogatives of the States? Where are those Senators on both sides of the aisle who stood up and said: Certain things are reserved to the States and we shouldn't intrude? The States have traditionally set the laws of marriage. That has been a foundational principle in laws pertaining to our families from the beginning of this country. Why this sudden need to change that? Oh, I forgot. We have elections this fall, so we have to have an electioneering issue. The States determine what age you must be in order to marry, whether you have to have your parents' permission and so on. The States have done that. They have done it quite well, and we ought to let them continue doing it. Most States are going to say marriage is between a man and a woman, as they always have. My own State of Vermont, because of our Constitution, was given a question: Would we support gay marriage in Vermont? My State of Vermont said no. Instead, we have civil unions, which give gay couples legal rights of inheritance and hospital visitation and other prerogatives. We made a pretty sensible decision. But in Judiciary Committee hearings, there is strong disagreement that this constitutional amendment could override Vermont's very sensible decision. But even beyond that, beyond any parochial thought, as a Senator, I am deeply concerned that this proposal is writing discrimination into the Constitution. For the first time--for the first time in our Nation's history, we would be amending the Constitution to narrow individual rights and to federalize an issue of family law. Well, the senior Senator from Vermont is a conservative when it comes to the Constitution and to conserving the Constitution. How will this measure affect American families who currently exist in this country whose members seek the protection of civil unions and the acknowledgment of their committed relationships? How will it affect child support enforcement or even inheritance and insurance benefits? I hope those who claim to care about families will turn away from wedge politics and scapegoating and discrimination. Instead, we should join together to work on the many pressing issues already piling up on Congress's agenda--issues we don't take time for, such as health care, gas prices, pensions, Iraq, paying for college education, and raising the minimum wage. Are we so afraid to tackle these real issues which affect all Americans, that we can only attempt to bring up issues that can be used in this fall's elections? Last month, President Bush spoke eloquently about this country and our values when he spoke about immigration, and I praised the President for his speech. He emphasized something I wish this White House and the Republican leadership in the Congress would keep in mind in connection with their efforts to demonize gay and lesbian Americans. The President said: We cannot build a unified country by inciting people to anger, or playing on anyone's fears or exploiting the issue of-- And here I insert ``marriage'' for ``immigration''-- for political gain. President Bush continued by saying: We must always remember that real lives will be affected by our debates and decisions, and that every human being has dignity and value. . . . I agree. My religion taught that, and I believe that every human being has dignity and value. Mean-spirited rhetoric does not serve this Nation or its diverse population. Our Nation would be better served if we refrained from divisiveness that is wielded like a weapon in order to score political and emotional points before an election. As an American who has been married 44 years, I am a great fan of the institution of marriage. I believe it is important to encourage and to sanction committed relationships, and I respect the people of my State for the careful manner in which they resolved this matter by recognizing civil unions. They recognized, as my predecessor, the senior Senator from Vermont, Robert Stafford, a wonderful quintessential New England Republican, did when he spoke of well over 60 years of marriage. He spoke about how the love of his wonderful wife Helen, made him a better person, and how their committed relationship made him better. Lower the rhetoric. Those who want to score points for this fall are denigrating people of committed relationships. Senator Stafford was right when he said that people who love make each other better people. Don't we all benefit from that? We have in Vermont. I know I would not have accomplished any of the things I have accomplished in life without the strong support and love of my wife, Marcelle. We have done this for 44 years. Let's look inward, each of us, to ourselves. Let's make sure we are living our lives the way we should before we tell the rest of the country how to live theirs. And let's be real--the actions in Vermont do nothing to diminish or threaten marriages in Vermont or any other State. For these reasons, I will continue to oppose measures such as this proposed constitutional amendment. I continue to urge that we solve the problems facing this Nation and stop the political pandering for this fall's elections. Let's get on and do something real. Let each of us be a person who is not going to try to control the lives of everyone else in this country. The distinguished chairman quoted Senator Goldwater in that respect. He was right. The Senate is wrong. I yield the floor.

Mr. LEAHY. Mr. President, I wish to speak about the amendment presently before us. There has been a lot of speculation in the paper about whether this is on the schedule because of partisan politics. Of course, it is. The Republican leader has decided that today our Nation's most pressing priority is a concern over committed relationships between same sex couples. We have very little time left in this session that we are devoting to an amendment, which will go nowhere, when so many of us are trying to focus on solutions to high gas prices, something that hurts people in your State and mine; or the rising cost of health care, certainly a matter of great interest in my State; the ongoing situation in Iraq, a place where the Bush-Cheney administration told us we would be welcomed as liberators and suggested we would be out of there quickly. We have now been there almost as long as World War II, and the ending to World War II was far more obvious than the ending in Iraq; or strengthening our national security. We are not going to talk about any of those things. I think that is a testament to the misplaced priorities of the Republican leadership. News reports have clearly revealed how this proposed constitutional amendment is being used to satisfy the most extreme right-wing supporters of Republican politicians. I do not believe that Americans are well served by this strategy, a strategy that would divide rather than unite Americans. The Constitution is too important to be used for such a partisan political purpose. It is too important to make us dividers and not uniters. I agreed with First Lady Laura Bush when she recently told Fox News that this proposed amendment should not ``be used as a campaign tool, obviously.'' Even so, obviously, that is exactly what Karl Rove and others in the Bush-Cheney administration are doing. That is why we only vote on such partisan measures in the run-up to an election. Apparently, high campaign season has arrived on the Republican leader's calendar. Right on the heels of this campaign season bid to amend our Constitution, they are readying yet another constitutional amendment for the floor. Many people have aptly noted that this amendment would write discrimination into our Nation's Constitution. I agree. That is exactly what we are being asked to spend our time doing this week. The Republican leadership's strenuous efforts to move this proposed amendment to the Senate floor for debate shows how important it is to the Republican leadership of the Senate to cater to the extreme right- wing and special interest groups agitating for a fight over this issue. They intend to stir up an election year fight and use it as a ``campaign tool'' and a ``political strategy.'' Right now, we should be addressing America's top priorities, including ways to make America safer, the war in Iraq, rising gas prices, rising health care and health insurance costs, stem cell research, or fixing FEMA, an organization that has fallen into almost incomprehensible misuse during this administration, and assisting our veterans whose privacy has been compromised by the neglect of the administration's Veterans' Administration. Maybe we can talk about the reauthorization of the Voting Rights Act, which is something that affects every State in this country. Instead, the President's political strategists and Senate allies are doing their best to divide and distract the American people and the Senate from fixing real problems by pressing forward with this controversial proposed constitutional amendment. As a nation, we are currently facing so many pressing issues, including the continuing sectarian violence in Iraq that is spiraling out of control, with the United States unable to stop it; the stunning investigations of this administration, indictments and convictions for government corruption; or a complicated drug program that has been dropped into the laps of our seniors. We now find it so complicated that it penalizes our seniors. It appears the only ones doing well under the program are the pharmaceutical companies. How about a burgeoning national debt, where a family of four owes well over $100,000 just for the debt run-up by the Bush-Cheney administration? Every time I stop at a gas station and fill up my car, all I hear from people is: When is the Congress going to do something about these historically high gas prices? Of course, the largest theft of private information maintained by the Government was stolen under the Bush- Cheney administration's watch, but we are not asked to debate that problem. We even tried to find some corrective legislation to protect not only our veterans, but now we find we need to protect tens of thousands of Active-Duty personnel from the negligence of this administration. We are not asked to do anything to protect those veterans. No, we have to talk about this constitutional amendment. The Judiciary Committee has been conducting hearings, but we have yet to get to the bottom of the Bush-Cheney administration's warrantless wiretapping and other programs utilized to gather information on Americans, such as the e-mails on the Web sites we visit and even our conversations among families. We need to make reauthorizing the expiring provisions of the Voting Rights Act a priority in the coming months of this season. We still see people that are not allowed to vote in this country because of the color of their skin. We ought to be doing something to reauthorize the Voting Rights Act. If we want to hold ourselves up as a moral mirror to the rest of the world, let's talk about things that affect a large part of the population of America. But no, on the Senate floor, we don't talk about these things, even though we are here to protect the rights of Americans--all Americans-- no matter what color they might be. But instead we are being made to turn again to a divisive measure that will do nothing to correct the weakness in our homeland security, that will do nothing to enact a budget the Republican Congress was supposed to, by law, enact months ago. We will do nothing to stem the rising gas prices. We will do nothing to respond to the most pressing issues facing hard-working Americans. Some may remember proponents of the Federal marriage amendment in 2004--coincidentally the last election year--could not assemble a majority of Senators to even move to consider the proposed amendment, even though the Republicans controlled the Senate. Remember that in 2004, we were warned immediate action was required to protect the fragile institution of marriage, which was said to be under immediate threat. Of course, the real threats to marriage include adultery and unfaithfulness, desertion, pressures on a marriage that comes from economic stresses, unhappiness, and spousal abuse. Does anybody want to debate those on this floor? No. Would somebody like to put forward a constitutional amendment to tell States they cannot be allowed to have divorce laws? No. What about telling States what ages people can marry? No. That would be interfering with the rights of States. We will do the whole enchilada and tell them we will take over their State legislatures. Having been told the heavens are falling, we find in the past 2 years, no States have been forced to recognize same-sex marriages. In fact, several States voted to amend their State Constitutions to define marriage. The Defense of Marriage Act, which we passed, defines marriage as the union between a man and a woman for Federal purposes and prevents any States from being forced to recognize another State's approval of same-sex marriage. That is the law of the land. That bipartisan law has been upheld three times in Federal court. It is under no threat of being overturned. So when the last election year rolled around, we were told there was a crisis, but there never was a crisis then, nor is there now an imminent crisis that demands the diversion of Congress's attention from all of these other urgent problems or that justifies an alteration of our founding document to say that States are no longer the ones in control of marriage. We will set a Federal law to tell the States of Tennessee and Vermont and every other State, we are taking over. Your legislatures can go home. But unlike the Republican leadership of this Congress and the Bush- Cheney administration, I trust our 50 States to define marriage and the rules of marriage as they always have. I trust our States a lot more than the Republican leadership of this Congress or of the administration. I am sure we will continue to hear a lot of rhetoric about ``judicial activism'' as the reason why we need to dramatically alter the U.S. Constitution. Even the President in his weekly radio address invoked the notion of ``rogue judges'' that flaunt the law as a justification for this drastic measure. This politically convenient criticism is surprising. It is surprising, considering the fact that the majority of those Federal judges he is so worried about were all appointed by Republican Presidents. He doesn't even trust the judges the Republicans appointed. In fact, any judicial decision that was a dramatic departure from the status quo on this issue would certainly be appealed to the U.S. Supreme Court, where seven of the nine Justices on the Supreme Court were appointed by Republican Presidents. Does anyone believe Chief Justice Roberts is going to preside over a U.S. Supreme Court that will override the law in this regard? And any State can define marriage in their Constitution. When the Republican-controlled Supreme Court of Massachusetts ruled that you could have same sex marriage, they made it very clear that the State, of course, could amend their Constitution to change that. In fact, the proposed Federal marriage amendment, now renamed the Marriage Protection Amendment, would itself produce a wide range of litigation that judges--the very boogeymen that proponents of the proposed amendment demonize, would be required to resolve. It would be the judges--these judges--these judges that the President and the Republican leadership, all of these Republican judges they seem to fear, they are the ones who will be forced to resolve the ambiguities and meanings of these words if they are added to our Constitution. The proposed language we are being required to consider is exceedingly confusing and subject to interpretation. It is inevitably going to create uncertainty. For example, who would be bound by the provisions of the Marriage Protection Amendment? State actors, private citizens or religious organizations? What would constitute the legal incidents of marriage? Can a legislature pass a civil unions law that mirrors its marriage law, so long as they do not call it marriage? Can the people of a State put protections for civil unions in their State Constitution? What State actors are forbidden from construing their own Constitutions? Are we saying that a State supreme court could not construe its own Constitution or is it the State executive branch officials that couldn't do it as well? We had hearings on these precise language questions, and they were not resolved. I am particularly concerned about the fate of the Vermont civil unions that have been formed under the color of State law. Despite an initially wrenching debate, our State law remains on the books after 5 years. There has been no ensuing crisis in the lives of Vermont families. In fact, we have one of the lowest divorce rates in the country. But it is not clear to me why this constitutional amendment would render Vermont's law invalid. I started this afternoon by alluding to my agreement with the recent statements of the First Lady that the Constitution should not be used for political purposes. I agree with her statement, as I agreed with her sense that the President's ``bring it on'' language from the early days of the Iraq occupation was not helpful, and certainly was actually frightening to families who had somebody serving in the gulf. Starting this last weekend we have seen that suddenly the President is involving himself in this effort and is now prepared to endorse a specific constitutional amendment on this divisive topic. I have written President Bush on more than one occasion to ask, OK, if you are going to endorse it, what language? What language would you propose? In fact, my most recent letter was last month, and I ask unanimous consent that a copy be printed in the Record.

Mr. LEAHY. Mr. President, I see the distinguished Senator from Colorado in the Chamber. I am about to propound a unanimous consent request to help start the lineup of people. Was he looking for a chance to speak?

Mr. LEAHY. Mr. President, I ask unanimous consent that following my remarks, the distinguished Senator from Colorado be recognized for whatever remarks he wishes to make, and then that Senators Johnson and Dorgan be recognized for such comments as they wish to make.

Mr. LEAHY. Mr. President, this is the way we normally have done it. I think it works best. The Senator from Colorado certainly is respecting that tradition, and I would agree with it.

Mr. LEAHY. Following that.

Mr. LEAHY. Reserving the right to object, and I don't want to, does the Senator have the name of who is going to go between Senator Johnson and Senator Dorgan?

Mr. LEAHY

Mr. LEAHY. Mr. President, we are concluding the debate on the controversial nomination of Brett Kavanaugh to a seat on the Court of Appeals for the District of Columbia Circuit. I spoke last evening, and I shall not speak longer today except to again express my concern that we are putting a person with no judicial experience on the second most powerful court in the land. This vote will go forward, unlike the votes for two far more qualified people nominated by President Clinton who were pocket- filibustered by the Republican leadership of the Senate, along with 59 other judges nominated by President Clinton who were pocket- filibustered by the Republican leadership. What I worry about with this nomination of Mr. Kavanaugh, whose ABA rating has been downgraded--it is almost unprecedented to see that happen--is that he is a man who in all his statements spoke of making rulings that would make President Bush proud. This is an independent branch of Government. He is not supposed to make any President-- Republican or Democratic--proud. He is not supposed to be a rubberstamp for anybody. I think when you have a Republican-controlled Congress which has refused to be a check on the Bush-Cheney administration, whether it is the war in Iraq, the lack of weapons of mass destruction, the failures of Homeland Security with Katrina, or this latest fiasco in the Veterans' Administration, there is no accountability. We at least should be able to speak to our courts and to expect our courts to be accountable. This is an administration that has been secretly wiretapping Americans for years without warrants, despite the requirements of the law. This is an administration that refused to allow the Justice Department's own Office of Professional Responsibility to proceed with an investigation into whether Justice Department lawyers violated their responsibilities or the law in establishing and justifying programs to spy on Americans. This is an internal government investigation that is being stymied by the administration. This is an administration that has operated behind a wall of secrecy and that has issued secret legal opinions justifying the use of torture and rendition of prisoners to other countries, ignoring the dangers such tactics pose to our own soldiers and Americans around the world. This is an administration that is talking about prosecuting reporters and newspapers for trying to inform the American people about their government. This is an administration that says the law is what the President decides the law should be not what Congress passes. What is desperately lacking throughout this administration and this Republican-controlled Congress is accountability. I will give you one example. Yesterday, those responsible for Enron's collapse, which caused so many employees and investors to lose their savings, were held accountable in a court of law. Precious little was done by the Republican-controlled Congress to look into that. It required an independent court of law. Of course, Enron had been very generous to the President and to others and to many among the Republican leadership in the House and Senate in their contributions. I compliment the President, who yesterday expressed some regrets over the disastrous course he charted in Iraq; he began to acknowledge the harm done to this country in Abu Ghraib--far different than during his campaign when he said he could not think of a mistake he had ever made except for some of his nominations. Well, the President's picks for important judicial nominations continue to fare no better than his picks to head the CIA or FEMA or the VA. But bad judicial nominations will continue for lifetimes, not just the 2 years left to the Bush-Cheney administration. In just the past few months, we have learned that Judge Terrence Boyle, President Bush's pick for the Fourth Circuit and a sitting U.S. district judge, has ruled on multiple cases involving corporations in which he held an interest. The President's nominee to the Tenth Circuit, Judge James Payne, was withdrawn after it was revealed that he, too, sat on many cases where he held stock in one of the parties. Another of President Bush's nominees to the Fourth Circuit, Claude Allen, who would be a sitting Circuit Judge now if Democrats had not opposed his nomination, is now the subject of a criminal prosecution for charges akin to stealing from retail stores. And Michael Wallace, President Bush's pick for the Fifth Circuit, recently received the first unanimous not qualified rating from the ABA for a Circuit Court nominee in nearly 25 years. Now we are considering a nominee today, Brett Kavanaugh, who is a young and relatively inexperienced, but ambitious member of the White House's inner circle. He is the President's pick to put another ally and trusted vote on the DC Circuit. He has spent most of his legal career in partisan political positions. As Staff Secretary to the President, Mr. Kavanaugh has been involved in President Bush's use of 750 Presidential signing statements designed to reserve for the President alone the power to choose whether to enforce laws passed by Congress. As an Associate White House Counsel, Mr. Kavanaugh worked with Karl Rove on the President's plan to pack the Federal bench with ideologues such as William Pryor, Janice Rogers Brown and others. He helped justify the wall of secrecy that has shrouded so many of the White House's activities. At his hearing Mr. Kavanaugh emphasized, as if a qualification, that he had ``earned the trust of the President'' and his ``senior staff.'' All that may be useful for advancement within this President's administration or Republican circles, but those are hardly qualities or qualifications for an independent judge of this President and this administration's actions. Indeed, when pressed at his confirmation hearing to provide answers about his qualifications for this lifetime appointment and how he would fulfill his responsibilities as a judge, Mr. Kavanaugh sounded like a spokesman and representative for the administration. Over and over he answered our questions by alluding to what the President would want and what the President would want him to do. We heard from a nominee who parroted the administration's talking points on subject after subject. Rather than answer our questions, he referred us to the bland explanation offered by a former Presidential spokesman. I do not think the Senate should confirm a Presidential spokesman to be a judge on the second highest court in the land. I do not believe that Mr. Kavanaugh demonstrated that he has left his role as a member of the President's administration or that he will. The reasons for the downgrading of Mr. Kavanaugh's ABA rating also raise concerns about his independence. Not only did those who have seen Mr. Kavanaugh in his limited legal practice describe him as ``less than adequate,'' but those who were interviewed recently raised concerns about Mr. Kavanaugh's ability to be balanced given his many years in partisan positions working to advance a political agenda. They described him as ``insulated,'' ``sanctimonious,'' and ``immovable and very stubborn and frustrating to deal with on some issues.'' These may be good qualities for a partisan political operative, but they are not qualities that make for a good judge. My concerns about Mr. Kavanaugh's judicial independence are heightened by the fact that he has been nominated to the DC Circuit, a court which the Republicans have spent more than a decade trying to pack. They spent President Clinton's second term blocking his highly- qualified nominees, Elena Kagan, now Dean of Harvard Law School, and Allen Snyder, a former clerk to Chief Justice Rehnquist and highly respected litigator. Nonetheless, I voted to confirm Judge John Roberts to be a member of the DC Circuit and later supported his nomination to be Chief Justice of the Supreme Court. After the Senate last year confirmed two of President Bush's nominees that I strongly opposed--Janice Rogers Brown and Thomas Griffith-- Republican appointees now comprise a two-to-one majority on this important court. This is not a court that needs another rubberstamp for the President's political ally. The Senate Republican leadership is catering to the extreme rightwing and special interest groups agitating for a fight over judicial nominations. With a number of judicial nominees ready for bipartisan confirmation, the Senate Republican leadership would rather concentrate on this controversial and divisive nominee. That this nomination has not moved forward for 3 years is indicative of the fact that even Republican Senators know what a poor nomination this is. They have made no secret of the reason for rushing this nomination through the Senate now, after it has languished for 3 years under Republican control, and after the nominee admitted to slow-walking his responses to this committee. They want to stir up a fight. They want to score cheap political points at the expense of another lifetime appointment to the courts. The Senate Republican leadership is apparently heeding the advice of the Wall Street Journal editorial page, which wrote, ``[a] filibuster fight would be exactly the sort of political battle Republicans need to energize conservative voters after their recent months of despond.'' Rich Lowery, editor of the conservative National Review, listed a fight over judges as one of the ways President Bush could revive his political fortunes, writing that he should, ``[p]ush for the confirmation of his circuit judges that are pending. Talk about them by name. The G.O.P. wins judiciary fights.'' Republican Senators are relishing this chance for a political fight. Senator Thune has said, ``A good fight on judges does nothing but energize our base. . . . Right now our folks are feeling a little flat.'' Senator Cornyn has said, ``I think this is excellent timing. From a political standpoint, when we talk about judges, we win.'' On May 8, 2006, the New York Times reported: ``Republicans are itching for a good election-year fight. Now they are about to get one: a reprise of last year's Senate showdown over judges.'' The Washington Post reported on May 10: ``Republicans had revived debate on Kavanaugh and another Bush appellate nominee, Terrence Boyle, in hopes of changing the pre-election subject from Iraq, high gasoline prices and bribery scandals.'' We should not stand idly by as Republicans choose to use lifetime Federal judgeships for partisan political advantage. In a May 11, 2006, editorial The Tennessean wrote: [T]he nation should look with complete dismay at the blatantly political angle on nominations being advocated by Senate Republicans now. . . . Republicans are girding for a fight on judicial nominees for no reason other than to be girding for a fight. They have admitted as much in public comments. . . . In other words, picking a public fight over judicial nominees is, in their minds, the right thing to do because it's the politically right thing to do. . . . Now, Republicans are advocating a brawl for openly political purposes. The appointment of judges deserves far more respect than to be an admitted election-year ploy. . . . It should be beneath the Senate to have such a serious matter subjected to nothing but a tool for political gain. On May 3, 2006, the New York Times wrote in an editorial: The Republicans have long used judicial nominations as a way of placating the far right of their party, and it appears that with President Bush sinking in the polls, they now want to offer up some new appeals court judges to their conservative base. But a lifetime appointment to the DC Circuit is too important to be treated as a political reward. Our job in the Senate should not be to score political points or advance partisan agendas. Our job is to fulfill our duty under the Constitution for the American people. We must be able to assure the American people that the judges confirmed to lifetime appointments to the highest courts in this country are fair to those who enter their courtrooms and to the law. We have heard from many who are concerned about the nomination of Mr. Kavanaugh: The AFL-CIO, United Auto Workers, and Service Employees International Union have all written to us opposing this nomination. The Leadership Conference on Civil Rights, NARAL PRO-Choice American, and the National Council of Jewish Women have all written to us opposing this nomination. The Society of American Law Teachers, National Employment Lawyers Association, and the Alliance for Justice have all written to us opposing this nomination. Earthjustice and Community Rights Counsel have written to us concerned about this nomination. The Senate's job is to fulfill our duty under the Constitution, rather than act as a rubberstamp for the President's attempt to pack the courts with political allies. We must be able to assure the American people that the judges confirmed to lifetime appointments to the highest courts in this country are being appointed to be fair and protect their interests, rather than those of a Presidential patron. Mr. Kavanaugh has given the Senate no reason to believe he has the capacity for independence. I am prepared to vote on Mr. Kavanaugh right now unless others on the other side would wish to talk, which, of course, would lead others to talk. As I said to the two leaders last night, I would be willing to go to a vote soon.

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

Mr. LEAHY. Mr. President, have the yeas and nays been ordered?

Mr. LEAHY

Mr. LEAHY. Mr. President, today, I join the chairman of the Judiciary Committee, Senator Specter, in introducing an amended version of S. 852, the Fairness in Asbestos Injury Resolution Act of 2006, the FAIR Act. This legislation enhances our previous trust fund bill by adopting many of the amendments filed in February by Senators on both sides of the aisle. We have incorporated amendments that further protect against fraud and make sure the sickest victims are paid as soon as possible. We added crucial provisions that make the trust fund accessible to victims who were exposed to asbestos during the attacks on the World Trade Center and Hurricanes Katrina and Rita. We clarified the bill language to ensure that inactive dormant claims cannot be revived to overwhelm the trust fund. This legislation also contains a few additional changes that we believe respond directly to concerns raised by our colleagues during floor debate. The floor amendments incorporated in this bill include, among others, the Kyl funding amendment that will protect small and medium sized businesses. We also addressed the concerns of businesses that currently pay nothing or very little because they are well- insured. None of these changes undermine the existing guarantee on overall private funding at $140 billion. Also importantly, we preserved the ability of the existing bankruptcy trusts to continue paying impaired victims while the trust fund becomes operational. This will smooth the transition for victims who were exposed by companies that are currently protected from suit by bankruptcy. And finally, we clarified the statute of limitations for our Nation's war veterans so they will have better access to the trust fund. None of the additional provisions contained in this substitute diminish the bill's key principle: That the asbestos trust fund will be comprised solely of private money. Nothing in this bill will reduce the protection of victims against insurance subrogation. I am proud to report that we have also maintained our core medical criteria so that those who have been impaired by asbestos exposure will receive compensation appropriate to their injuries. Earlier this week, we were all saddened to learn of the passing of Judge Edward R. Becker. As many of my colleagues are keenly aware, Judge Becker worked patiently with Senators and all of the stakeholders on this legislation for almost 3 years. We engaged in an exhaustive process of committee hearings, deliberations and negotiations. Judge Becker was crucial to each step in the process. We would not have made the bipartisan progress that this legislation reflects without his tireless efforts. Unfortunately, time is running out for this session of Congress. I know that some partisans will claim that we should refrain from reaching across the aisle during an election year but this persistent problem compels us to move forward to try and help the thousands of victims of asbestos exposure. I urge the Senate majority leader to give us sufficient floor time to debate and vote on this important legislation on its merits.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, I join the chairman of the Judiciary Committee, Senator Specter, in introducing an amended version of S. 852, the Fairness in Asbestos Injury Resolution Act of 2006, the FAIR Act. This legislation enhances our previous trust fund bill by adopting many of the amendments filed in February by Senators on both sides of the aisle. We have incorporated amendments that further protect against fraud and make sure the sickest victims are paid as soon as possible. We added crucial provisions that make the trust fund accessible to victims who were exposed to asbestos during the attacks on the World Trade Center and Hurricanes Katrina and Rita. We clarified the bill language to ensure that inactive dormant claims cannot be revived to overwhelm the trust fund. This legislation also contains a few additional changes that we believe respond directly to concerns raised by our colleagues during floor debate. The floor amendments incorporated in this bill include, among others, the Kyl funding amendment that will protect small and medium sized businesses. We also addressed the concerns of businesses that currently pay nothing or very little because they are well- insured. None of these changes undermine the existing guarantee on overall private funding at $140 billion. Also importantly, we preserved the ability of the existing bankruptcy trusts to continue paying impaired victims while the trust fund becomes operational. This will smooth the transition for victims who were exposed by companies that are currently protected from suit by bankruptcy. And finally, we clarified the statute of limitations for our Nation's war veterans so they will have better access to the trust fund. None of the additional provisions contained in this substitute diminish the bill's key principle: That the asbestos trust fund will be comprised solely of private money. Nothing in this bill will reduce the protection of victims against insurance subrogation. I am proud to report that we have also maintained our core medical criteria so that those who have been impaired by asbestos exposure will receive compensation appropriate to their injuries. Earlier this week, we were all saddened to learn of the passing of Judge Edward R. Becker. As many of my colleagues are keenly aware, Judge Becker worked patiently with Senators and all of the stakeholders on this legislation for almost 3 years. We engaged in an exhaustive process of committee hearings, deliberations and negotiations. Judge Becker was crucial to each step in the process. We would not have made the bipartisan progress that this legislation reflects without his tireless efforts. Unfortunately, time is running out for this session of Congress. I know that some partisans will claim that we should refrain from reaching across the aisle during an election year but this persistent problem compels us to move forward to try and help the thousands of victims of asbestos exposure. I urge the Senate majority leader to give us sufficient floor time to debate and vote on this important legislation on its merits.

Mr. LEAHY

Mr. LEAHY. Mr. President, in several crucial respects, the CIA today is in disarray, and fixing our premier intelligence agency must be a top priority. The CIA must become as effective as we need it to be in combating terrorism and in serving all of our national security interests. The keys to a strong and competent CIA are the independence and proficiency of its leadership. I had a lengthy private discussion with General Hayden in deciding how I would vote on his confirmation. Our discussion confirmed the confidence that I have long had in General Hayden's professionalism and competence. I remain outraged about the controversial domestic surveillance initiatives that the NSA has overseen at the White House's direction, but the fact remains that President Bush and Vice President Cheney--not General Hayden--were the ``deciders'' in ordering this surveillance of Americans, with then-White House Counsel Gonzales acting in his capacity to validate a program that was structured and operated outside the checks and balances of existing law. The CIA right now is in desperate need of professionalism after the debacle of the Agency's outgoing leadership, and my discussions with General Hayden have led me to conclude that he has the competence, the experience, and the independence to serve capably in helping to repair the damage that has been done to the Agency. I will vote for his confirmation.

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

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to remember my friend Rev. William Sloane Coffin who passed away in Vermont on April 12, 2006, at his home in Strafford. Bill Coffin was an extraordinary man who leaves behind a legacy of inspired service for social justice that few Americans have matched. He dedicated his life to speaking out on behalf of those who would otherwise be forgotten, to improving the lives of the underprivileged, and to calling for justice for victims of discrimination in our society. As chaplain of Yale University, Bill used that pulpit like none before him, to serve not only the Yale community but to inspire the entire Nation. While many Senators may remember him best for his moral leadership and courageous activism during the Vietnam War, Bill also established himself as a dedicated leader for racial and social justice. He was a member of the Freedom Riders who rode interstate buses in the South to challenge segregation laws. He was a visionary and powerful leader in pointing out the hypocrisy of religious and sexual discrimination Mr. Gary Trudeau, creator of the cartoon ``Doonesbury'' and fellow Yale graduate, may have immortalized Bill Coffin in his Reverend Sloan character. But that was only one chapter of a lifetime of using his ministry to fight injustice. After his long service at Yale, Bill became pastor of Riverside Church in New York City where he continued to advocate for the downtrodden all over the world. Bill continued to be a forceful presence for good long after he left Riverside. Mr. President, Vermonters were fortunate to have Bill Coffin as a resident of our unique State. Vermonters have a long history of independent thought, of standing up for what is right, and Bill Coffin set a standard for all of us. I was privileged to know him personally and to be able to call him a friend. I know his other friends and neighbors felt the same way. We were all made better, and felt better about ourselves, when we were in the company of Bill Coffin. I ask unanimous consent that a column by William F. Buckley and an editorial in the Valley News be printed in the Congressional Record so that other Senators may have a further appreciation of this great and good man.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the text of the five bills on suspending duties be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, when the Senate resumed its consideration of comprehensive immigration reform last week, I began by expressing my hope that we would finish the job the Judiciary Committee started in March and the Senate began in April. We need to fix the broken immigration system with tough reforms that secure our borders and with reforms that will bring millions of undocumented immigrants out of the shadows. I have said all along that Democratic Senators cannot pass a fair and comprehensive bill alone. Over the last 2 weeks we finally got some help. I would like to especially thank Senators Kennedy and McCain, as well as Chairman Specter and the Democratic leader, for their tireless work on this bill. We got some words of encouragement from President Bush last week when he began speaking out more forcefully and in more specific terms about all of the components needed for comprehensive legislation. For the first time, he expressly endorsed a pathway to earned citizenship for the millions of undocumented workers now here. I thank him for joining in this effort. But his work is far from done. We will need his influence with the recalcitrant members of his party here in the House if we are ultimately to be successful in our legislative effort. Without effective intervention of the President, this effort is unlikely to be successful and the prospects for securing our borders and dealing with the hopes of millions who now live in the shadows of our society will be destroyed. Those who have peacefully demonstrated their dedication to justice and comprehensive immigration reform should not be relegated back into the shadows. Yesterday we were able to begin to draw to a close the Republican filibuster against comprehensive immigration reform. When Republicans filibustered two cloture votes last month, including one on a motion by the Republican leader, I was disappointed. I had hoped we would recognize the lawful, heartfelt protests of millions against the harsh House-passed criminalization measures. While they waved American flags, some of those fueling anti-immigrant feelings burned flags of other countries. I am encouraged that through the course of this debate we have been able to convince enough Senate Republicans to join us in our efforts and to appreciate the contributions of immigrants to our economy and our Nation. This bill is not all that it should be in my view. By incorporating the Hagel-Martinez formulation, we have compromised from the initial compromise. I have made no secret that I preferred the better outline of the Judiciary Committee bill. The bill the Senate is now considering is a further compromise. Debate and amendments have added some improvements as well as some significant steps in the wrong direction. I thank Senators Bingaman, Kerry, Obama, Salazar, and others for their important and constructive amendments. I was delighted that after some initial opposition, working with Senator Stevens and others, we were able to add flexibility to the Western Hemisphere Travel Initiative by extending its deadline another year and one-half through our amendment. The Senate unwisely rejected efforts by some of us to make it more flexible for those persecuted around the world. This country has had a history of being welcoming to refugees and those seeking asylum from persecution. The Senate turned its back on that history by refusing to allow the Secretary of State the flexibility needed after restrictive language was added to our laws by the REAL ID Act. I remain hopeful that Senators will reconsider these issues with more open minds and hearts and a fully understanding of the lives being affected. Sadly, too many were spooked by false arguments. Besides the Senate's failure to readjust asylum provisions to take into account the realities of oppressive forces in many parts of the world, I was most disappointed that the Senate appeared to be so anti- Hispanic in its adoption of the Inhofe English language amendment. Senator Salazar and I wrote to the President following up on this provision and the comments of the Attorney General last week and weekend. We asked whether the President will continue to implement the language outreach policies of President Clinton's Executive Order 13166. A prompt and straightforward affirmative answer can go a long way toward rendering the Inhofe English amendment a symbolic stain rather than a serious impediment to immigrants and Americans for whom English at this moment in their lives is a second language. I deeply regret that the Senate took such a divisive act. Over my strong objection and that of the Democratic leader, Senator Salazar, and others, a modified version of the Inhofe amendment was adopted. I understand why this amendment provoked a reaction from the Latino community as exemplified by the May 19 letter from the League of United Latin American Citizens, the Mexican American Legal Defense and Educational Fund, the National Association of Latino Elected Officials Educational Fund, the National Council of La Raza, the National Puerto Rican Coalition, and from a larger coalition of interested parties from 96 national and local organizations. Until this week, in our previous 230 years we have not found it necessary or wise to adopt English as our official or national language. I believe it was in the Commonwealth of Pennsylvania that the State legislature shortly after the Revolutionary War authorized official publication of Pennsylvania's laws in German as well as English to serve the German-speaking population of that State. We have been a confident Nation unafraid to hear expressions in a variety of languages and willing to reach out to all within our borders. That tradition is reflected in President Clinton's Executive Order 13166. We demean our history and our welcoming tradition when we disparage Spanish and those who come to us speaking Spanish. I have spoken about our including Latin phrases on our official seal and the many States that include mottos and phrases in Latin, French, and Spanish on their State flags. We need not fear other languages. We would do better to do more to encourage and assist those who wish to be citizens to learn English, but we should recognize English, as Senator Salazar's amendment suggested, as our common and unifying language. Yesterday, once we had overcome the previous Republican filibuster, we were faced with a budget point of order supported by some Senators who oppose the bill and who added significantly to the costs of the bill through their amendments. Rather than continue their efforts to delay or derail Senate action on comprehensive immigration reform, I had hoped that they would join with us in a constructive way to enact comprehensive immigration reform. We do not need more divisiveness, derision, and obstruction. This bill is not the bill I would have designed. It includes many features I do not support and fails to include many that I do. The bill that won the bipartisan support of a majority of the Judiciary Committee was a compromise that contained the essential components that are required for comprehensive immigration reform. Before the last recess I was willing to support a further compromise that incorporated the principles of the Hagel-Martinez bill because it was proposed by the majority leader as a ``breakthrough'' that would allow us to pass immigration reform. I want to express my appreciation to the Democratic leader, Senator Reid. He was right to insist that the original version of the Kyl- Cornyn amendment and the Isakson amendment not be rushed through the Senate to score political points. As the significantly revised version of the Kyl-Cornyn amendment attests, the Democratic leader was right. With a little time, and thanks to a lot of hard work, the amendment has been significantly changed, narrowed, and accepted. With a little time and bipartisan commitment the Isakson amendment was defeated. We have proceeded to consider dozens of amendments. Most have been offered by Republican Senators. Some have been approved; some have been tabled or rejected. The Senate has worked its will. Immigration reform must be comprehensive if it is to lead to real security and real reform. Enforcement-only measures may sound tough, but they are insufficient. The Senate has a responsibility to pass a bill that addresses our broken system with comprehensive reform and puts the pieces in place to secure the Nation. Just a few weeks ago, I went to the White House with a bipartisan delegation of Senators to speak with the President. The need for a fair and comprehensive immigration bill was the consensus at that meeting, and I believe the President was sincere when he told us that we had his support. I trust that he will urge comprehensive immigration reform on the Republican House leadership who has yet to endorse our bipartisan comprehensive approach. Without the President following through on his words with actions, the effort for comprehensive immigration reform is unlikely to be successful. Last week the Senate made progress. We made progress because Democratic and Republican Senators working together rejected the most strident attacks on the comprehensive bill. We joined together in a bipartisan coalition in the Judiciary Committee when we reported the Judiciary Committee bill. Democratic Senators were ready to join together in April and supported the Republican leader's motion that would have resulted in incorporating features from the Hagel-Martinez bill, but Republicans balked at that time and continued to filibuster action. Last week, Republicans joined with us to defend the core provisions of that bill, and we defeated efforts by Senators Kyl and Cornyn to gut the guest worker provisions and to undermine the pathway to earned citizenship. Instead, we adopted the Bingaman amendment to cap the annual guest worker program at 200,000 and the Obama amendment regarding prevailing wages in order to better protect the opportunities and wages of American workers. I spoke last week about the need to strengthen our border security after more than 5 years of neglect and failure by the Bush-Cheney administration. A recent report concluded that the number of people apprehended at our borders for illegal entry fell 31 percent on President Bush's watch, from a yearly average of 1.52 million between 1996 and 2000, to 1.05 million between 2001 and 2004. The number of illegal immigrants apprehended while in the interior of the country declined 36 percent, from a yearly average of roughly 40,000 between 1996 and 2000, to 25,901 between 2001 and 2004. Audits and fines against employers of illegal immigrants have also fallen significantly since President Bush took office. Given the vast increases in the number of Border Patrol agents, the decline in enforcement can only be explained by a failure of leadership. Meanwhile, once again the administration is turning to the fine men and women of National Guard. After our intervention turned sour in Iraq, the Pentagon turned to the Guard. After the Government-wide failure in responding to Hurricane Katrina, we turned to the Guard. Now, the administration's longstanding lack of focus on our porous southern border and failure to develop a comprehensive immigration policy has prompted the administration to turn once again to the Guard. I remain puzzled that this administration, which seems so ready to take advantage of the Guard, fights so vigorously against providing this essential force with adequate equipment, a seat at the table in policy debates, or even adequate health insurance for the men and women of the Guard. I have cautioned that any Guard units should operate under the authority of State Governors. In addition, the Federal Government should pick up the full costs of such a deployment. Those costs should not be foisted onto the States and their already overtaxed Guard units. Controlling our borders is a national responsibility, and it is regrettable that so much of this duty has been punted to the States and now to the Guard. The Guard is pitching in above and beyond, balancing its already demanding responsibilities to the States, while sending troops who have been deployed to Iraq. The Guard served admirably in response to Hurricane Katrina when the Federal Government failed to prepare or respond in a timely or sufficient manner. The Vermont Guard and others have been contributing to our national security since the immediate aftermath of 9/11. After 5 years of failing to utilize the authority and funding Congress has provided to strengthen the Border Patrol and our border security, the administration is, once again, turning to the National Guard. It was instructive that last week President Bush and congressional Republicans staged a bill-signing for legislation that continues billions of dollars of tax cuts for the wealthy. Instead of a budget with robust and complete funding for our Border Patrol and border security, the President has focused on providing tax cuts for the wealthiest among us. Congress has had to step in time and again to create new border agent positions and direct that they be filled. Instead of urging his party to take early and decisive action to pass comprehensive immigration reform, as he signaled he would in February 2001, the President began his second term campaigning to undercut the protections of our Social Security system, and the American people signaled their opposition to those undermining steps. While the President talks about the importance of our first responders, he has proposed 67 percent cuts in the grant program that supplies bulletproof vests to police officers. Five years of the Bush-Cheney administration's inaction and misplaced priorities have done nothing to improve our immigration situation. The Senate just passed an emergency supplemental appropriations bill that allocated nearly $2 billion from military accounts to border security. The Democratic leader had proposed that the funds not be taken from the troops. But last week the President sent a request for diverting a like amount of funding, intended for capital improvements for border security, into operations and deployment of the National Guard. The Republican chairman of the Senate Appropriations Subcommittee on Homeland Security came to the Senate Floor last week to give an extraordinary speech in this regard. Border security alone is not enough to solve our immigration problems. We must pass a bill--and enact a law--that will not only strengthen the security along our borders, but that will also encourage millions of people to come out of the shadows. When this is accomplished we will be more secure because we will know who is living and working in the United States. We must encourage the undocumented to come forward, undergo background checks, and pay taxes to earn a place on the path to citizenship. In addition, last week the Senate adopted a billion-dollar amendment to build fencing along the southern border without saying how it would be funded. We also adopted amendments by Senators Bingaman, Kerry, and Nelson of Florida to strengthen our enforcement efforts. Last week we defeated an Ensign amendment to deny persons in legal status the Social Security benefits to which they are fairly entitled. I believe that most Americans will agree with that decision as fair and just. It maintains the trust of the Social Security trust fund for those workers who contribute to the fund. This week we defeated a Sessions amendment that would have unfairly stripped immigrants of earned-income tax credits. I am pleased that in both cases the Senate agreed not to unfairly withhold these benefits from hard-working immigrants who will benefit immensely from them. The opponents of our bipartisan bill have made a number of assaults on our comprehensive approach. Senators Kyl, Sessions, and Cornyn opposed the Judiciary Committee bill. Senators Vitter, Ensign, Chambliss, and Inhofe have been very active in the amendment process, as well. I hope that they recognize how fairly they have been treated and the time they have been given to argue their case against the bill and offer amendments. We have adopted their amendments where possible. A narrowed version of the Kyl-Cornyn amendment disqualifying some from seeking legalization was adopted. The Sessions amendment on fencing was adopted. The Vitter amendment on documents was adopted. The Ensign amendment on the National Guard was adopted. The Cornyn amendment imposing additional costs on immigrants was adopted. I trust that with so many of their amendments having been fairly considered and some having been adopted, those in the opposition to this measure will reevaluate their previous filibuster. It may be too much to think that they will support the bill as amended.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the text of the five bills on suspending duties be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am today introducing a bill which can be the catalyst for saving the lives or improving the health of millions of families in impoverished nations. In far too many nations, thousands of children die needlessly each month. The concept of my bill--called the Life-Saving Medicines Export Act of 2006--is easy to summarize. It allows U.S. companies to make low-cost generic versions of patented medicines for export to impoverished nations that face public health crises but cannot produce those life-saving medicines for themselves. This bill is based on World Trade Organization agreements permitting nations with pharmaceutical industries to help nations in need. That WTO agreement was labeled by U.S. Ambassador Portman as ``a landmark achievement that we hope will help developing countries devastated by HIV and AIDS and other public health crises.'' Apart from the pressing need for this step in humanitarian terms, passage of this bill could go a long way in improving U.S. relations with large segments of the world's population. On December 6, 2005, the Office of the U.S. Trade Representative announced that it ``welcomes'' efforts to ``allow countries to override patent rights when necessary to export life-saving drugs to developing countries that face public health crises but cannot produce drugs for themselves.'' I am concerned, however, that the administration has taken no steps whatsoever to begin to implement that agreement. No implementing legislation has been provided to the Hill. I was informed just today that the administration has ``no present plans'' to propose legislation to implement that international agreement. I am disappointed with that answer but am pleased that the administration expressed a willingness to work with me on this important effort. I will forward my bill to them later today. Indeed, the World Health Assembly and the World Health Organization have adopted resolutions urging all WTO member nations with a generic capability to adopt laws that implement that agreement. The World Bank recently issued a guide and model documents on how best to implement that international agreement. My bill follows their model. Like a generation ago, infectious and parasitic diseases remain the major killers of children in the developing world. Many of these diseases--measles, malaria, river blindness--we can prevent or cure. But those countries still lack the public health systems and the vital medicines. Every hour, more than 500 African mothers lose a child, mostly from diseases caused by contaminated water. In some sub-Saharan countries, HIV infection rates range as high as a third of the adult population, and for this reason 35 percent of African children are at higher risk of death than they were a decade ago. Despite these grim statistics, there is a brighter side. We are far more aware today of how much our own health depends on what takes place half a world away. Whether it is AIDS, SARS, West Nile Virus, the Avian Flu, or some as yet unknown infectious disease, we are all at risk, and only an airplane flight away, from wherever the outbreak may occur. Because of this new awareness, global health is finally recognized as an issue of national security. It may seem obvious today, but even ten years ago it was not. Health threats that once concerned only medical personnel, now receive the attention of the highest levels of governments. We are supporting policies and programs to help the poorest countries conduct better surveillance and respond more quickly to protect their own people, and to prevent the spread of disease. There is a great deal more we need to do. Today, 15 percent of the world's people consume 91 percent of the world's pharmaceuticals. The high price of many life-saving medicines--medicines that we take for granted in this country--is beyond reach for billions of the world's most vulnerable populations. President Franklin Roosevelt said: ``The test of our progress is not whether we add more to the abundance of those who have much, it is whether we provide enough for those who have little.'' Imagine if you, or a loved one, were dying and you knew the medicine to cure the disease exists and costs only a few dollars, but you have no way to get it or to pay for it. That is a reality for millions of people today. Reports by UNICEF, UNAIDS, and Doctors without Borders clearly show that the high price of many life-saving medicines is a significant barrier to their availability in many very low income areas of the world. Indeed, the 4th Global Report of UNAIDS notes the extremely low rate of treatment for HIV/AIDS in those areas by pointing out that of the 5 to 6 million urgently in need of antiretroviral medicines, only some 400,000 were receiving them. With respect to AIDS, a recent book by Philip Hilts called ``Prescription for Survival'' notes the importance of offering affordable medicines to populations of impoverished nations: ``It was said that the price of the drugs was killing tens of thousands . . .'' Under my bill, U.S. generic manufacturers would be allowed to make generic versions of patented drugs without the consent of the patent holders. Those patent holders would receive compensation in the form of a royalty payment under a so-called ``compulsory license'' and the generic companies would then be required to sell those less-expensive generic drugs only to least-developed or developing nations. Use of a compulsory license occurs when Congress determines that there is an important need which should be addressed. For example, most Americans do not realize that their network television programs received by satellite or by cable are provided under a compulsory license. The program owners receive a royalty for their programs under a formula. This way American families can watch network TV programming over satellite or cable just like it is made available over-the-air. This same compulsory license approach, except with respect to patented medicines, is employed in this bill. The WTO agreement contains language designed to protect the interests of the patent holders by focusing its benefits on areas of the world where these important medicines would not otherwise be available except for some of the wealthiest residents. Thus, implementation of the agreement would not take business away from the companies owning the patents, sometimes referred to as the ``brand-name'' companies, since their medicines are not purchased by low-income families in those impoverished nations. In addition, the patent holders will receive royalties from the generic companies under the bill. Third, generic versions of products sold under the agreement have to be clearly marked as not for resale to developed nations. This will mean that the bill should not result in undercutting the high-priced sales of those medicines by the brand-name companies in developed nations. Thus, the bill addresses both the urgent needs of millions of low- income families in impoverished nations while protecting the interests of the patent owners of these life-saving medicines. There have been significant voluntary efforts made by brand-name pharmaceutical companies, foundations, and non-profits who have donated life-saving medicines and have donated time, personnel and money to help in the fight against deadly diseases in other nations. I commend and greatly appreciate those efforts. Some funding mechanisms have been started including the Global Fund to Fight AIDS, Tuberculosis and Malaria and President Bush's Millennium Challenge Account. Nonetheless, much remains to be done. If this bill is enacted it would complement the above efforts and implement the WTO agreements and make low-cost life-saving pharmaceutical products, and other medicines, available to hundreds of thousands of persons without other access to those products. To provide a little history, I am very pleased that all the member nations of the World Trade Organization, WTO, agreed to this approach to assist people suffering from life-threatening diseases in least- developed or developing nations. Under this international agreement, nations such as the United States with pharmaceutical industries would be allowed to make and sell generic medicines to nations in need even if the patent owners of those medicines refused to authorize such manufacture and sale. As I said earlier, on December 6, 2005, the United States announced that it ``welcomes'' the WTO amendment to ``allow countries to override patent rights when necessary to export life-saving drugs to developing countries that face public health crises but cannot produce drugs for themselves.'' The amendment will go in effect, for those nations which adopt it, once \2/3\ of the member nations adopt it. The current waiver approach, allowing nations to implement it now, will remain in place until the permanent amendment is adopted. This permits the U.S. to move forward with this effort this year. Indeed, Canada has already passed implementing legislation. Participation by any nation which wants to export such generic products is voluntary. In order to participate, each country must pass legislation to implement the WTO agreement. The United States needs to act as soon as possible. This is a moral issue. I am working with a number of religious groups, humanitarian organizations, international assistance groups, and generic drug companies on this effort. I have also received input from some pharmaceutical brand-name companies and hope a few will step forward and be leaders in this effort. I will also reach out across the aisle to try to form a bipartisan coalition. Two recent World Health Organization annual reports, the World Health Reports for 2003 and 2004, demonstrate the enormous scope of the need for supplying these medicines to needy countries. The ``Life-Saving Medicines Export Act of 2006'' that I am introducing today would allow the U.S. generic industry to respond to these urgent international needs and could save millions of lives in impoverished nations. Canada, Norway and the Netherlands have already enacted such legislation or rule changes. However, aspects of the Canadian law have been an impediment to the willingness of generic companies to participate. For example, that law allows Canadian generic companies to provide such medicines for at most only 4 years. The Canadian version permits dilatory and needless litigation, omits important medicines from a complex list of covered drugs, and creates unnecessary bureaucratic hoops. I have received input from generic companies and my bill addresses all of those concerns. For example, it would provide that a participating generic manufacturer could provide such medicines for up to 14 years which makes it much more likely that U.S. generic companies would make the investments needed to make low-cost medicines for export to impoverished areas. Under my bill, U.S. generic manufacturers would be allowed to make generic versions of patented drugs without the consent of the patent holders. Those patent holders would receive compensation, a royalty payment, under a so-called ``compulsory license'' and the generic companies would then be required to sell those less-expensive generic drugs only to least-developed or developing nations. The WTO agreement contains language designed to protect the interests of the patent holders by focusing its provisions on areas of the world where these important medicines would not otherwise be available except for some of the wealthiest residents. Thus, implementation of the agreement would not take business away from the companies owning the patents, sometimes referred to as the ``brand-name patent holders since their medicines are not purchased by low-income families in those impoverished nations. There may be de minimis losses of profits for brand-name patent holders but certainly the humanitarian and self- interest benefits provided by the bill would massively outweigh those concerns. In addition, the patent holders will receive royalties from the generic companies under the bill. Third, generic versions of products sold under the agreement have to be clearly marked as not for resale to developed nations. This should mean that the bill will not result in undercutting the high-priced sales of the patented medicines in developed nations. Re-exporting of these generic products is prohibited unless it is part of a regional trade alliance among impoverished nations as permitted under the WTO agreements. Thus, the bill addresses both the urgent needs of millions of low- income families in impoverished nations while protecting the interests of the patent owners of these life-saving medicines and will hopefully help enhance America's image in the world. For those only interested in self-interest rather than humanitarian aid, note that because of the globalization of travel our Nation is at risk from failure to contain diseases in other nations. America has a strong self-interest in combating diseases in foreign nations. A surprising number of new diseases have emerged in recent years. Some of these new diseases are variations of existing diseases. The volume of people and cargo going to and from distant nations is astounding. According to ``Rx for Survival'' by Philip Hilts, if you count only travel between nations with a heavy burden of disease and those with less disease, more than a million people a week are making the trip. The more viruses and bacteria mutant inside animals and people, and the more people and goods travel throughout the world, the more residents living in the United States are at risk of being harmed by dangerous diseases. The National Intelligence Estimate of January 2000, published by the CIA and the National Intelligence Council noted that: ``New and emerging infectious diseases will pose a rising global health threat, and will complicate U.S. and global security over the next 20 years. These diseases will endanger U.S. citizens at home and abroad, threaten United States armed forces deployed overseas and exacerbate social and political instability in key countries and regions.'' I hope all my colleagues will join me in supporting this effort. Here is my section-by-section summary of the bill. Section 1: Sets forth the name of the Act as the ``Life-Saving Medicines Export Act of 2006.'' Section 2: States that the purpose of the Act is to promote public health under World Trade Organization agreements by permitting the export of generic versions of life-saving patented pharmaceutical products and other medicines including diagnostic tools and vaccines needed to prevent or treat potentially life threatening diseases to residents of impoverished countries with insufficient or no manufacturing capacity to make the medicines. The findings set forth determinations by the World Health Organization concerning the millions of low-income persons without regular access to medicines in lesser- developed or developing nations. Section 3: This section requires the Director of the United States Patent and Trademark Office to issue a compulsory license (permission to make and sell a patented product under this new Act) to permit generic companies to make and export medicines under the terms of WTO international agreements under several conditions. The recipient country must be a least-developed nation, as defined by the United Nations, or a developing nation without the ability to manufacture the medicine in question. The recipient country, called an ``eligible country'' in the bill, must notify the WTO of its interest in participating in this program. Efforts must have been made by the generic company to buy the right to make and sell the medicine under normal business arrangements with the patent holders. The medical product exported under this Act must be for life- threatening public health problems and can only be used in least- developed or developing nations, and is not for re-export except in identified circumstances relating to regional trade alliances. Special labeling and packaging must be used to make clear that the product is sold under the authority of the WTO agreement only for use as allowed under agreement and this bill. The permission to make and sell the product, the license, can not exceed 7 years, except that the license may be extended once. The holder of the compulsory license shall pay a royalty to the patent holder, as determined by the Director of the PTO within a limited range of possible rates set forth in the bill, taking into account such factors as humanitarian needs, the economic value to the importing nation, and the need for low-cost pharmaceutical products by persons in the importing nation. The maximum royalty for any shipment shall not exceed 4 percent times the commercial value of the pharmaceutical products to be exported under this Act under that supply agreement. An alternative royalty payment approach, modeled after the approach enacted into law by Canada, would also be permitted with the same 4 percent maximum. In addition, the Director may accept combined applications from multiple eligible countries. Note that in emergency situations the Director may waive provisions of the bill in a manner consistent with the WTO agreements. Section 4: This section makes clear that compulsory licenses issued under this Act shall not be considered an infringement of a patent. Section 5: This section creates a diverse advisory board of academic, patent, trade, medical, international aid, and industry experts to advise the Director, and to report to the Congress, on ways to improve implementation of the bill to achieve its purposes. Mandatory funding for the board is provided out of the general fund of the U.S. at $1.5 million in fiscal years 2007 and 2008, with modestly declining amounts provided in subsequent years through 2011. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today for the second week in a row the Senate Judiciary Committee's agenda included a proposed amendment to the Constitution, to its fundamental purpose and to our rights as Americans. I understand that Republicans are trying to keep to a political timetable for raising divisive matters in the runup to the November elections. I know that in election years they love to wave the flag amendment, rather than work on veterans health care or protecting veterans' privacy. We have just witnessed the largest theft of private information from the Government ever, the loss of information on more than 26 million American veterans. Compounding the incompetence was the misguided decision by the Veterans' Administration for secrecy in trying to cover this up for the last 3 weeks. This follows on the heels of last year's debacle of a billion-dollar shortfall in VA's budget for veterans health care, after repeated denials. It all adds up to a ``heckuva bad job'' for America's veterans. The President should call Secretary Nicholson into the woodshed for a serious shakeup in how the VA is run. In the meantime, Secretary Nicholson needs to answer why this information was left vulnerable to such a breach, why such a delay in notification was allowed to occur, and what specific steps he is taking to ensure such a breach does not happen again. The Nation's veterans--who have been willing to make the ultimate sacrifice for their country--deserve to have the best tools available to protect themselves and their families from identity theft. Rather than work on our privacy and identity theft legislation, including the Specter-Leahy Personal Data Privacy and Security Act of 2005, or the Kerry-Salazar legislation to provide credit checks and monitoring to those veterans whose private information was compromised, we are being directed to another divisive debate on a proposed constitutional amendment. In that regard, I noticed that earlier this week, the White House Press Secretary was asked about this constitutional amendment and had no knowledge of it existing. I would like to include that exchange in the Record: Question. [C]ould you tell us if the President also supports the proposed amendment to protect the United States flag from public desecration? Mr. Snow. Do we have a flag desecration--I apologize; this is something that, believe it or not, in the last two weeks has not come up. So I'm afraid---- Question. Flag burning. Mr. Snow [continuing]. Flag burning. I'll just have to get back [to you]. The White House Press Secretary has yet to become familiar with the talking points on how much more important this is than national security, the war in Iraq, unprecedented gas prices, the lack of a Federal budget, the penalties on seniors who may now wish to sign up for Medicare drug prescription, comprehensive immigration reform, emergency supplemental appropriations, preparations for the hurricane season, preparations for a possible avian flu pandemic, privacy legislation, and completing our work on reauthorizing the Voting Rights Act.