Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I appreciate the strong, eloquent statement of the Senator from Massachusetts. He is a former chairman of this committee, the Judiciary Committee. Of course, he is not only a former chairman but, as one of the three most senior Members of the Senate, is well aware of what has been our practice. I think we may also hear from the senior Senator from Delaware, Mr. Biden, who is another former chairman. Let me speak in my capacity also as a former chairman of the Judiciary Committee. It is now almost 1 month since the bipartisan agreement was forged to avert an unnecessary ``nuclear'' showdown in the Senate. Democratic Senators who signed the Memorandum of Understanding on Judicial Nominations that averted the nuclear option have fulfilled their commitments with respect to invoking cloture on several controversial nominees. Sadly, with Republicans voting party-line on almost every one of these nominees, they have been confirmed. Meanwhile, as the Democratic leader had offered months ago, the Senate considered and voted upon two Sixth Circuit nominees and an additional DC Circuit nominee. What has yet to take place, however, is the kind of meaningful consultation that Republican and Democratic Senators explicitly called for in that memorandum. They ``encouraged the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.'' They called for a ``return to the early practices of our government'' that reduced conflict and led to consensus. We have not yet noticed an abundance of consultation. And unfortunately, White House officials have declared that the President has no interest in and feels no obligation to assist in implementing this feature of the memorandum. Since the White House will not acknowledge the record, I thought it worth noting that 214 of this President's judicial nominations have already been confirmed by the Senate. That includes 41 circuit court nominees, an almost 80-percent confirmation rate of his many divisive circuit court nominees. These figures are all well ahead of the rates during President Clinton's administration. At a similar point in the last administration, only 180 nominees had been confirmed, including only 31 circuit court nominees, which amounted to barely 74 percent of President Clinton's circuit court nominees. With all the recent talk from Republicans about the principle of every nominee being entitled to an up-or-down vote, it is striking that such a standard was not considered at all while Republicans pocket filibustered more than 60 of President Clinton's judicial nominees. As I demonstrated during the time I served as chairman and since then, President Bush's nominees have been treated far more fairly than were President Clinton's nominees. I have spoken over the last 4\1/2\ years, most recently in the last few weeks, about the benefits to all if the President were to consult with Members of the Senate from both sides of the aisle on important judicial nominations. I return today to emphasize, again, the significance of meaningful consultation on these nominations. It bears repeating given what is at stake for the Senate, the judiciary and the American people. In a few more days the U.S. Supreme Court will complete its term. Last year the Chief Justice noted publicly that at the age of 80, one thinks about retirement. I get to see the Chief Justice from time to time in connection with his work for the Judicial Conference and the Smithsonian Institution. Sometimes we see each other in Vermont or en route there, and I am struck every time by his commitment to service. He is waging his personal battle against ill health with his characteristic resolve. I know that the Chief will retire when he decides that he should, and not before. He has earned that right after serving on the Supreme Court for more than 30 years, the last 19 as the Chief Justice. I have great respect and affection for him, and he is in our prayers. In light of the age and health of our Supreme Court Justices, speculation has accelerated about the potential for a Supreme Court vacancy this summer. In advance of any such vacancy, I have called upon the President to follow the constructive and successful examples set by previous Presidents of both parties who engaged in meaningful consultation with Members of the Senate before selecting nominees. This decision is too important to all Americans to be unnecessarily embroiled in partisan politics. I have said repeatedly that should a Supreme Court vacancy arise, I stand ready to work with President Bush to help him select a nominee to the Supreme Court who can unite Americans. I have urged consultation and cooperation for 4 years and have reached out to the President, again, over these last few weeks. I hope that if a vacancy does arise the President will finally turn away from his past practices, consult with us and work with us. This is the way to unite instead of divide the Nation, and this is the way to honor the Constitution's ``advise and consent'' directive, and this is the way to preserve the independence of our federal judiciary, which is the envy of the rest of the world. Some Presidents, including most recently President Clinton, found that consultation with the Senate in advance of a nomination was highly beneficial in helping lay the foundation for successful nominations. President Reagan, on the other hand, disregarded the advice offered by Senate Democratic leaders and chose a controversial, divisive nominee who was ultimately rejected by the full Senate. In his recent book, ``Square Peg,'' Senator Hatch recounts how in 1993, as the ranking minority member of the Senate Judiciary Committee, he advised President Clinton about possible Supreme Court nominees. In his book, Senator Hatch wrote that he warned President Clinton away from a nominee whose confirmation he believed ``would not be easy.'' Senator Hatch goes on to describe how he suggested the names of Stephen Breyer and Ruth Bader Ginsburg, both of whom were eventually nominated and confirmed ``with relative ease.'' Indeed, 96 Senators voted in favor of Justice Ginsburg's confirmation, and only three Senators voted against; Justice Breyer received 87 affirmative votes, and only nine Senators voted against. Nor are these recent examples the only evidence of effective and meaningful consultation with the Senate over our history. The Constitution provides that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint'' judges and explicitly the members of the only court established by the Constitution itself, the Supreme Court. For advice to be meaningful, it needs to be informed. Despite his public commitment at a news conference three weeks ago specifically regarding the Supreme Court, the President has not even begun the process of consulting with Democratic Senators. I wrote to the President, again, last month, urging consultation and even making suggestions on how he might wish to proceed. Bipartisan consultation would not only make any Supreme Court selection a better one, it would also reassure the Senate and the American people that the process of selecting a Supreme Court justice has not become politicized. The bipartisan group of 14 Senators who joined together to avert the ``nuclear option'' included the following in their agreement: We believe that, under Article II, Section 2, of the United States Constitution, the word ``Advice'' speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration. Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate. We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold. I agree. Bipartisan consultation is consistent with the traditions of the Senate and would return us to practices that have served the country well. Our fellow Senators have history and the well-being of the Nation on their side in urging greater consultation on judicial nominations. They are right. What is troubling are the recent reports that the White House plan does not include meaningful consultation at all, but instead plans a political-style campaign and some sort of preemptive contact to allow them to pretend they consulted, without anything akin to the kind of meaningful consultation that this important matter deserves. Partisan activists supporting the White House boasted last week about a war chest of upwards of $20 million to be used to crush any opposition to the White House's selection. That sounds awfully like preparations for all out partisan political warfare. If the White House intends to follow that type of plan, it would be most unfortunate, unwise and counterproductive. Though the landscape ahead is sown with the potential for controversy and contention should a vacancy arise on the Supreme Court, confrontation is unnecessary. Consensus should be our mutual goal. I would hope that the President's objective will not follow the path he has taken with so many divisive circuit court nominees and send the Senate a Supreme Court nominee so polarizing that confirmation is eked out in the narrowest of margins. This would come at a steep and gratuitous price that the entire Nation would have to pay in needless division. It would serve the country better to choose a qualified consensus candidate who can be broadly supported by the American people and by the Senate. The process begins with the President. He is the only participant in the process who can nominate candidates to fill Supreme Court vacancies. If there is a vacancy, the decisions made in the White House will determine whether the nominee chosen will unite the Nation or will divide the Nation. The power to avoid destructive political warfare over a Supreme Court vacancy is in the hands of the President. No one in the Senate is spoiling for a fight. Only one person will decide whether there will be a divisive or a unifying process and nomination. If consensus is accepted as a worthy goal, bipartisan consultation will help achieve it. I believe that is what the American people want, and I know that is what they deserve. If the President chooses a Supreme Court nominee because of that nominee's ideology or record of activism in the hopes that he or she will deliver political victories, the President will have done so knowing that he is starting a confirmation confrontation. The Supreme Court should not be a wing of the Republican Party, nor should it be an arm of the Democratic Party. If the right-wing activists who were disappointed that the nuclear option was averted convince the President to choose a divisive nominee, they will not prevail without a difficult struggle that will embroil the Senate and the country. And if they do, what will they have wrought? The American people will be the losers: The legitimacy of the judiciary will have suffered a damaging blow from which it may not soon recover. Such a contest would itself confirm that the Supreme Court is just another setting for partisan contests and partisan outcomes. People will perceive the federal courts as places in which ``the fix is in.'' Our Constitution establishes an independent federal judiciary to be a bulwark of individual liberty against incursions or expansions of power by the political branches. That independence is what makes our judiciary the model for others around the world. That independence is at grave risk when a President tries to pack the courts with activists from either side of the political spectrum. Even if successful, such an effort would lead to decisionmaking based on politics and would forever diminish public confidence in our justice system. The American people will cheer if the President chooses someone who unifies the Nation. This is not the time and a vacancy on this Supreme Court is not the setting in which to accentuate the political and ideological division within our country. In our lifetimes, there has never been a greater need for a unifying pick for the Supreme Court. At a time when too many partisans seem fixated on devising strategies to force the Senate to confirm the most extreme candidates with the least number of votes possible, Democratic Senators are urging cooperation and consultation to bring the country together. There is no more important opportunity than this to lead the Nation in a direction of cooperation and unity. The independence of the federal judiciary is critical to our American concept of justice for all. We all want Justices who exhibit the kind of fidelity to the law that we all respect. We want them to have a strong commitment to our shared constitutional values of individual liberties and equal protection. We expect them to have had a demonstrated record of commitment to equal rights. There are many conservatives who can readily meet these criteria and who are not rigid ideologues. This is a difficult time for our country, and we face many challenges. Providing adequate health care for all Americans, improving the economic prospects of Americans, defending against threats, the proliferation of nuclear weapons, the continuing upheaval that afflicts our soldiers in Iraq--all these are fundamental matters on which we need to improve. It is my hope that we can work together on many issues important to the American people, including maintaining a fair and independent judiciary. I am confident that a smooth nomination and confirmation process can be developed on a bipartisan basis if we work together. The American people we represent and serve are entitled to no less.

Mr. LEAHY

Mr. LEAHY. Today I am introducing the Uniting American Families Act. This legislation would allow U.S. citizens and legal permanent residents to petition for their foreign same-sex partners to come to the United States under our family immigration system. It is nearly identical to the Permanent Partners Immigration Act that I introduced in the last Congress, and which Congressman Nadler--who is introducing this bill in the House today--has sponsored for the last four Congresses. I am pleased to have Senators Chafee, Kennedy, Corzine, Jeffords, Boxer, Feingold, Murray, Dayton, and Lautenberg as cosponsors. Under current law, committed partners of Americans are unable to use the family immigration system, which accounts for about 75 percent of the green cards and immigrant visas granted annually by the United States. As a result, gay Americans who are in this situation must either live apart from their partners, or leave the country if they want to live legally and permanently with them. This bill rectifies that problem while retaining strong prohibitions against fraud. To qualify as a permanent partner, petitioners must prove that they are at least 18 and are in a committed, intimate relationship with another adult in which both parties intend a lifelong commitment, and are financially interdependent with one's partner. They must also prove that they are not married to, or in a permanent partnership with, anyone other than that person, and are unable to contract with that person a marriage cognizable under the Immigration and Nationality Act. Proof could include sworn affidavits from friends and family and documentation of financial interdependence. Penalties for fraud would be the same as penalties for marriage fraud--up to five years in prison and $250,000 in fines for the U.S. citizen partner, and deportation for the alien partner. There are Vermonters who are involved in permanent partnerships with foreign nationals and who have felt abandoned by our laws in this area. This bill would allow them--and other gay and lesbian Americans throughout our Nation who have come to feel that our immigration laws are discriminatory--to be a fuller part of our society. The idea that immigration benefits should be extended to same-sex couples has become increasingly prevalent around the world. Indeed, sixteen nations--Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom--recognize same-sex couples for immigration purposes. Our immigration laws treat gays and lesbians in committed relationships as second-class citizens, and that needs to change. It is the right thing to do for the people involved, it is the sensible step to take in the interest of having a fair and consistent policy, and I hope that the Senate will act.

Mr. LEAHY

Mr. LEAHY. Today I am introducing the Uniting American Families Act. This legislation would allow U.S. citizens and legal permanent residents to petition for their foreign same-sex partners to come to the United States under our family immigration system. It is nearly identical to the Permanent Partners Immigration Act that I introduced in the last Congress, and which Congressman Nadler--who is introducing this bill in the House today--has sponsored for the last four Congresses. I am pleased to have Senators Chafee, Kennedy, Corzine, Jeffords, Boxer, Feingold, Murray, Dayton, and Lautenberg as cosponsors. Under current law, committed partners of Americans are unable to use the family immigration system, which accounts for about 75 percent of the green cards and immigrant visas granted annually by the United States. As a result, gay Americans who are in this situation must either live apart from their partners, or leave the country if they want to live legally and permanently with them. This bill rectifies that problem while retaining strong prohibitions against fraud. To qualify as a permanent partner, petitioners must prove that they are at least 18 and are in a committed, intimate relationship with another adult in which both parties intend a lifelong commitment, and are financially interdependent with one's partner. They must also prove that they are not married to, or in a permanent partnership with, anyone other than that person, and are unable to contract with that person a marriage cognizable under the Immigration and Nationality Act. Proof could include sworn affidavits from friends and family and documentation of financial interdependence. Penalties for fraud would be the same as penalties for marriage fraud--up to five years in prison and $250,000 in fines for the U.S. citizen partner, and deportation for the alien partner. There are Vermonters who are involved in permanent partnerships with foreign nationals and who have felt abandoned by our laws in this area. This bill would allow them--and other gay and lesbian Americans throughout our Nation who have come to feel that our immigration laws are discriminatory--to be a fuller part of our society. The idea that immigration benefits should be extended to same-sex couples has become increasingly prevalent around the world. Indeed, sixteen nations--Australia, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Iceland, Israel, the Netherlands, New Zealand, Norway, South Africa, Sweden and the United Kingdom--recognize same-sex couples for immigration purposes. Our immigration laws treat gays and lesbians in committed relationships as second-class citizens, and that needs to change. It is the right thing to do for the people involved, it is the sensible step to take in the interest of having a fair and consistent policy, and I hope that the Senate will act.

Mr. LEAHY

Mr. LEAHY. I am proud to cosponsor this amendment, as I have been glad to cosponsor the ``No Oil Producing and Exporting Cartels Act,'' which we have been working to pass since 2001. I commend our lead sponsors Senators DeWine and Kohl. I wish that we could have considered and passed this bill, S. 555, on its own. This bill passed out of the Judiciary Committee with overwhelming support earlier this year. I have repeatedly called for its consideration by the Senate over the last several months. In the face of crude oil prices over $55 a barrel and gas prices at historic and sustained high levels, and in the face of determined inaction by the White House, we must seize whatever opportunity presents itself. It is long past time for the Congress to hold OPEC accountable for its anticompetitive behavior. This amendment will prevent the U.S. from being at the mercy of the OPEC cartel by making them subject to our antitrust laws. It will allow the Federal Government to take legal action against any foreign state, including members of OPEC, for price fixing and other anticompetitive activities. In March of 2004, more than a year ago, I wrote Senator Hatch to request a hearing about the skyrocketing cost of gasoline. In that letter, I raised concerns that this increase was largely due to market manipulation by OPEC, and I cited the high average price for a gallon of gasoline, which at the time was around $1.74. Many of us would today consider that price a bargain, having been forced to pay over $2.00, and even more this year. At that hearing, witnesses told us what we had suspected to be true: The price of crude oil, determined by OPEC's artificial production quotas, is the factor that most explains the price Americans pay at the pump. The artificial pricing scheme enforced by OPEC affects all of us. This week, Vermonters were paying $2.10 for a gallon of regular gasoline, just three cents below the national average. These prices affect everyone. Higher fuel prices can add thousands of dollars in yearly costs to a 100-head dairy operation in the Northeast. And as our summer months approach, many families are going to find that OPEC has put an expensive crimp in their plans. Some are likely to stay home-- others will pay more to drive or to fly so that they can visit their families or take their well-deserved vacations. Rising interest rates are also adding to the burden felt by working Americans. Pension insecurity is another catastrophe for some and a looming specter for too many others. Millions of Americans who trusted that the pensions they were promised by their employers would be there for them when they retired are being shocked by rulings in bankruptcy cases that let their employers off the hook and turn their pension security into a hollow promise. Congress needs to do more. The administration needs to do more. Authorizing action against illegal oil price fixing and taking that action without delay is one thing we can do without additional obstruction or delay. Last month, as some Republicans were pushing this body to the brink of the so-called nuclear option, Americans were thinking not about the handful of controversial judicial nominees on which the Senate was fixated, but about the pinch they feel at the pump every time they fill up their cars. A survey by the Pew Research Center for the People & the Press showed that Americans were following news about gasoline prices more closely than any other story, including the ongoing conflict in Iraq. It is long passed the time for walking hand-in-hand with Saudi princes and exchanging kisses with those who are responsible for the artificially high prices that are gouging American working families at the pump. The President's solution to high gasoline prices this summer is to open the Arctic National Wildlife Refuge, pristine wilderness area, to oil drilling. The only catch is drilling in ANWR will not provide any new oil for at least 7 to 12 years. ANWR drilling will do absolutely nothing to help my constituents who have sticker shock at the gas pump or will be facing record-high home heating prices in a few months. This amendment will provide law enforcement with the tools necessary to fight OPEC's anticompetitive practices immediately, and help reduce gasoline prices now, rather than waiting for another decade. Again, I am pleased to support this amendment and urge my colleagues to maintain it in the final version of the bill. After the years of Judiciary consideration, including a hearing on this topic, after twice reporting the measure to the Senate, it is time for Senators to finally say ``no'' to OPEC.

Mr. LEAHY

Mr. LEAHY. Madam President, I am pleased that the nomination of Rodolphe ``Skip'' Vallee to be Ambassador to the Slovak Republic has been confirmed so expeditiously. This is an important post, and I am confident that he will serve honorably. Skip is a native Vermonter whose family has lived in the State for generations, and I know he will take his strong Vermont values with him to Slovakia. While we may not always agree on political matters, I have great respect for Skip's integrity, intelligence, and commitment. During his hearing before the Senate Foreign Relations Committee, Skip discussed a number of initiatives he will undertake in this position; from enhancing trade opportunities to promoting democracy. His business experience will be of immense value as the Slovak Republic seeks to build its economy and integrate itself more fully into the global economy. While I will miss seeing Skip in Vermont, I know I am joined by Vermonters in saying how proud I am to have one of our own representing our country overseas. I would like to congratulate Skip and his family and wish them the best in this new endeavor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to call attention to an important, yet often overlooked, provision of law that governs the relationship of the United States with nations that harbor individuals who have been indicted by the Special Court for Sierra Leone or the International Criminal Tribunal for Rwanda. This provision, section 585 of the Foreign Operations Appropriations Act, which was signed into law by President Bush in January 2004 and reauthorized about a year later, makes it clear that the Unites States stands for the rule of law in Africa. This is not a partisan issue. Democrats and Republicans understand the importance of the rule of law, which is a cornerstone for peace, democracy, justice and development in Africa--and around the world. In fact, Senator Judd Gregg, a Republican from New Hampshire, co-authored this provision with me. I see my friend from Illinois, Senator Obama, on the floor and am wondering if he agrees.

Mr. LEAHY. I absolutely share the Senator's views of the situation. Charles Taylor's actions are a breach of his promises to Nigerian President Obasanjo. And, I believe that if Nigeria does not hand over Charles Taylor for trial, it could constitute a threat to Liberian peace, justice in Sierra Leone, and the rule of law throughout West Africa. This is why the provision of law that I mentioned earlier is so important. It is the law of the United States that there shall be no assistance to the central government--including debt relief--for countries harboring fugitives from the Special Court for Sierra Leone. There is strong bipartisan support in the U.S. Congress to reauthorize this provision in fiscal year 2006, which means that unless President Bush issues a waiver, Nigeria will not be eligible for U.S. debt relief or military assistance, or any other assistance to the central government, until it sends Charles Taylor to the Special Court for trial. I would point out that President Bush can exercise the waiver authority in the law by simply submitting a plan in writing on how the Administration will get Mr. Taylor to the Special Court to stand trial. Mr. President, it is not in the interests of the people of West Africa, including Nigeria, or the United States, to continue to shelter Charles Taylor from justice. As a strong supporter of debt relief, I believe there is a strong case to be made that Nigeria's debt should be forgiven--but not until President Obasanjo again demonstrates leadership and hands over Charles Taylor for trial. At that point, I will strongly support debt relief for Nigeria and actively lobby the administration and Congress to make it a reality.

Mr. LEAHY. I thank the Senator from Illinois and refer all Senators to section 585, entitled ``War Crimes in Africa,'' of Public Law 108- 447, the Foreign Operations Appropriations Act, 2005. I yield the floor.

Mr. LEAHY

Mr. LEAHY. I am pleased that the Senate today has taken action on H.R. 483, a bill that designates a courthouse in Brownsville, TX, as the ``Reynaldo G. Garza and Filemon B. Vela United States Courthouse'' in honor of these two judges, including the first Mexican-American named to a Federal judge. Unfortunately, the Senate has repeatedly delayed action on this bill. Congressman Solomon P. Ortiz first introduced a similar bill honoring these judges in 1998. It is now 7 years later and months after both these Judges' deaths in 2004. Both this Congress and last, I have introduced a companion bill with Congresswoman Norton that designates the new annex to the E. Barrett Prettyman United States Courthouse in Washington, DC, the ``William B. Bryant Annex.'' This historic figure should be honored, and that honor should occur during his lifetime. Regrettably, the Senate has yet to act on this bill, S. 478, which I introduced on March 1, 2005. In order to prevent repeating the regrettable timing of the Judge Garza and Vela Courthouse naming, I urge that the Senate move ahead on this worthy commendation of Judge Bryant's lifetime of public service. Judge Bryant continues to perform his duties as a senior Federal judge at the age of 93. His commitment to ending racial segregation and his belief in public service and the law has carried him through a historic career. He was the first African-American Chief Judge for the United States District Court in DC. The current Chief Judge Thomas F. Hogan and all of Judge Bryant's fellow judges recognize his truly remarkable lifetime achievements and have unanimously requested naming the newly constructed annex in his honor. Naming the new annex to the E. Barret Prettyman Courthouse after Judge Bryant is long overdue. I urge the Senate to take this action without further delay and allow Judge Bryant the commendation he deserves.

Mr. LEAHY

Mr. LEAHY. I request the yeas and nays.

Mr. LEAHY. Mr. President, I am glad to hear the distinguished leader say nominees deserve an up-or-down vote. Of course, he and other Republicans assured that 61 of the judicial nominees of President Clinton were not given a vote. They were subjected to pocket filibusters--61. In fact, this nomination is a measure of the double standards used by Republicans in connection with judicial vacancies. During President Clinton's Presidency, Senate Republicans said the 11th and 12th judgeships to the D.C. Circuit were not to be filled, that we did not need those seats. They had argued since 1995 that the caseload of the D.C. Circuit did not justify a full complement of the court. Indeed, at a hearing in 1995, Republicans called Chief Judge Laurence H. Silberman of the circuit to testify against proceeding to fill vacancies on the D.C. Circuit. Republicans have argued for years this circuit's caseload per judge is one of the lightest in the country. In a May 9, 2000, letter, Judge Silberman argued that the D.C. Circuit's caseloads had continued to decline from 1995 to 2000, and he opposed confirmation of additional Clinton nominees. In fact, the D.C. Circuit caseload has continued to decline and in 2004 was lighter than it was in 1999 when Senate Republicans pocket filibustered two highly qualified and moderate nominees by President Clinton to vacancies on that circuit. Now with the confirmation of Janice Rogers Brown to the court last week, there are 10 confirmed, active judges on the D.C. Circuit, which is what Republicans have always maintained is the most that circuit should have. Now, of course, we find we have another one. With all the self-righteous talk from the other side of the aisle about their new-found ``principle'' that ever judicial nominee is entitled to an up-or-down vote, the facts are that the nominations of Allen Snyder and Elena Kagan to the D.C. Circuit were pocket filibustered by those same Senate Republicans in 1999 and 2000. Ms. Kagan is now Dean of the Harvard Law School. Qualified? Undoubtably. One of the most qualified people to be nominated to that court in the 31 years I have been in the Senate. Was she given consideration in a Republican-led Senate? Not on your life. She was filibustered by Republicans. Likewise, the nomination of Allen Snyder, former clerk to Chief Justice Rehnquist and a highly respected partner in a prominent D.C. law firm, was pocket filibustered by Senate Republicans. When one of Mr. Synder's partners, John Roberts, was nominated to the same court by President Bush, he was, of course, unanimously supported by Senate Republicans. Senate Republicans played a cruel joke on Mr. Snyder when they allowed him a hearing but then went on to refuse to list him for a vote by the Judiciary Committee or the Senate. I recall that in September 2000, Senator Sessions explained that Clinton nominees Allen Snyder and Elena Kagan were blocked: ``Because the circuit had a caseload about one-fourth the average caseload per judge. And the chief circuit judge said 10 judges was enough, instead of 12. And I actually thought that was too many. I thought 10 was too many.'' So this Republican Senator joined in the pocket filibuster of these two nominees. Well, the D.C. Circuit's caseload per judge is lower now than it was during the Clinton administration, but suddenly with a Republican President, Republican Senators say we need to fill those seats. It is a bit hypocritical. Let us see whether the votes of Republican Senators this time will be based on the same rationale they gave in inflicting pocket filibusters on Clinton nominees. Last week we witnessed a Republican Senator--who had voted against the confirmation of a Clinton judicial recess appointment and had explained his vote as representing his opposition to recess appointments reverse himself to vote for a Bush judicial recess appointment. Last week, we witnessed dozens of Republican Senators--who voted against confirmation of Ronnie White of Missouri in 1999 and had explained their vote as compelled by the opposition of his home-state Senators--reverse themselves and vote in favor of Justice Janice Rogers Brown and ignore the strong, consistent and well- founded opposition of her two home-state Senators. Ronnie White, now the first African American to be chief justice of the Supreme Court of Missouri, was turned down by a double standard used by Republicans. I wonder whether the many Republicans Senators who delayed and opposed the confirmation of Merrick Garland in 1996 and 1997 and pocket filibustered the nominations of Allen Snyder and Elena Kagan in 1999 and 2000 will vote against a nominee to the D.C. Circuit because the caseload of the circuit does not justify more judges. We will see if Republican Senators again abandon their earlier rationale. It is sometimes embarrassing, I think, to some of my friends on the other side to be reminded of all the rationales they used in pocket filibustering President Clinton's nominees, when now all of a sudden those same rationales are out the window when a Republican nominates a judge. In addition, as I explained yesterday, my opposition to this particular nominee, Mr. Griffith, is because he did not follow the law. His decision to practice law without a license for a good part of his career should be disqualifying. He has not honored the rule of law by first practiced law illegally in the District of Columbia for several years and then in Utah for several years without even bothering to fulfill his obligation to become a member of the Utah bar. In this regard he appears to think he is above the law. This is not the kind of nominee who should be entrusted with a lifetime appointment to a Federal court and, least of all, to such an important court as the D.C. Circuit, which is entrusted with protecting the rights of all Americans. He may be a fine gentleman, but what a standard. We turn down a partner in a prestigious law firm because he was nominated by a Democrat, and we turn down a woman highly qualified who becomes the dean of the Harvard Law School, but she committed a sin of having been nominated by a Democratic President. When a Republican nominates somebody for the same seat and he practiced law illegally for 7 years, well, all is forgiven. This is the wrong nomination for this court, and I will vote against it. I think it is another in a series of inappropriate nominations the President has made to the same court. Of course, the takeover of this court is now complete. It becomes an arm of the Republican Party. Mr. Griffith is the third nominee from President Bush to be considered by the Senate. If he is confirmed with those 11 judges, a majority of 7 judges will be appointed by Republican Presidents, but interestingly enough, they have turned this court into an arm of the Republican Party by using some of the worst double standards we have seen. Instead of having a balanced court where we have nominees of both parties, the Republicans in the Senate filibustered, pocket filibustered judge after judge nominated by a Democratic President. The D.C. Circuit is an especially important court in our Nation's judicial system for its broad caseload covering issues as varied as reviews of federal regulation on the environment, workplace safety, telecommunications, consumer protection, and other critical statutory and constitutional rights. The White House has rejected all Democratic efforts to work together on consensus nominees for this court and refused to engage in consultation. I wish the President would work to unite the country instead of dividing it. But he has divided the Senate and the American people with several of his judicial nominees. It is unfortunate for the judiciary, the Senate, and the Nation. The President's unilateral approach is totally unnecessary and unlike his predecessors'. I have been here with six Presidents. Five before this Senate always consulted with both parties on judges they sought to unite rather than divide. This is the first President who has not. To reiterate, I oppose the nomination of Thomas Griffith to the U.S. Court of Appeals for the D.C. Circuit. Mr. Griffith's decision to practice law without a license for a good part of his career should be disqualifying. Mr. Griffith has foregone at least 10 opportunities to take the bar in Utah, and has continued to refuse during the pendency of his nomination. In this regard he appears to think he is above the law. That is not the kind of person who should be entrusted with a lifetime appointment to a Federal court and, least of all, to such an important court as the D.C. Circuit, which is entrusted with protecting the rights of all Americans. This is the wrong nomination for this court and I will vote against it. Given the fact that the Supreme Court routinely reviews fewer than 100 cases per year, the circuit courts, like the D.C. Circuit, end up as the courts of last resort for nearly 30,000 cases each year. These cases affect the interpretation of the Constitution as well as statutes intended by Congress to protect the rights of all Americans, such as the right to equal protection of the laws and the right to privacy. The D.C. Circuit in particular is an especially important court in our Nation's judicial system because Congress has vested it with exclusive or special jurisdiction over cases involving many environmental, civil rights, consumer protection, and workplace statutes. For example, the D.C. Circuit has exclusive or concurrent jurisdiction in cases involving the National Labor Relations Board, the Occupational Safety and Health Administration, the Federal Energy Regulatory Commission, the Federal Election Commission, and the Federal Communications Commission. The D.C. Circuit is entrusted with interpreting the Americans with Disability Act, the Endangered Species Act, and the Environmental Protection Agency, and has primary responsibility for ruling on the Resource Conservation and Recovery Act, Superfund, the Clean Water Act, and the Clean Air Act. It is crucial that this court retain its independence. The White House has rejected all Democratic efforts to work together on consensus nominees for this court and refused to engage in consultation. That is too bad and totally unnecessary. This is another in a series of inappropriate nominations this President has made to this court. Last week, Senate Republicans voted in lockstep to confirm Janice Rogers Brown to this court. The takeover of this court is now complete. Mr. Griffith is the third nominee for this court from President Bush to be considered by the Senate. If he is confirmed the 11 judges on the court will include a majority of seven judges appointed by Republican Presidents. At Mr. Griffith's hearing last March, I noted that unlike the many anonymous Republican holds and pocket filibusters that kept more than 60 of President Clinton's moderate and qualified judicial nominees from moving forward, the concerns about Mr. Griffith were no secret. Unlike the Republicans' pocket filibusters of Allen Snyder and Elena Kagan, who were each denied consideration and an up or down vote when nominated to the D.C. Circuit, Mr. Griffith knows full well that I think he has not honored the rule of law by his practicing law in Utah for 5 years without ever bothering to fulfill his obligation to become a member of the Utah bar. By one count, Mr. Griffith has so far foregone 10 opportunities to take the Utah bar exam while applying for and maintaining his position as general counsel at BYU. He is about to forego an eleventh. This conscious and continuous disregard of basic legal obligations is not consistent with the respect for law we should demand of lifetime appointments to the Federal courts. He has yet to satisfactorily explain why he obstinately insists on refusing to do what hundreds of lawyers do twice a year in Utah and thousands of lawyers do around the country: apply for and take the State bar exam and qualify to become a member of the State bar in order to legally practice law. He has testified that he has obtained a Utah driver's license and pays Utah State taxes, but he is not a member of the bar despite admitting practicing law there since 2000. This is not Mr. Griffith's first or only bar problem. Mr. Griffith was less than forthcoming with us on questions related to his repeated failures to maintain his D.C. bar membership and his failures to pay his annual dues on time not just once, not twice, but in 1996, 1997, 1998, 1999, 2000 and 2001. He was twice suspended for his failures, including one suspension that lasted for 3 years. As was reported last summer in the Washington Post, and confirmed through committee investigation, Mr. Griffith has spent the last 5 years as the general counsel to BYU. In all that time he has not been licensed to practice law in Utah, nor has he followed through on any serious effort to become licensed. He has hidden behind a curtain of shifting explanations, thrown up smokescreens of letters from various personal friends and political allies, and refused to acknowledge what we all know to be true: Mr. Griffith should have taken the bar. I ask unanimous consent that the relevant Washington Post articles be printed in the Record.

Mr. LEAHY. Practicing law without a license, or as the bars call it, unauthorized practice of law, is not a technicality. In some States it is a crime. In Texas, for example, it is a third degree felony. It is a serious dereliction of a lawyer's duty. It is a commonplace of American jurisprudence that no one is above the law. If the American people are to have confidence in our system of laws that must include the lawyers, and beyond question, it must include the judges. I continue to be disappointed by Mr. Griffith's unwillingness to do what is now long overdue: namely, to take the Utah bar exam and become properly licensed to practice law in Utah, where Mr. Griffith has been practicing law for the last 5 years. Despite the evident controversy surrounding his practice of law in Utah for 5 years without becoming a member of the Utah bar, he appears to have comfortably and conveniently placed himself above the law. That is not something I look for in lifetime appointments to the Federal courts. For a court that decides some of the most important issues of law in our Nation, where the ruling in just one case can affect millions of people in the most critical areas of their lives, the President has chosen to send us a nominee whose disregard for the rules that apply to him is simply unacceptable. Over the months that this nomination has been pending before us we have done a good deal of investigation into this matter on a bipartisan basis. The committee investigators questioned the nominee, spoke to officials and experts at the D.C. bar and the Utah bar, asked for and received correspondence and other documents relating to Mr. Griffith's bar memberships and worked to understand the facts and circumstances surrounding the two situations. Having reviewed all of this information and studied Mr. Griffith's many answers, I have come to the inescapable conclusion that he feels he cannot be bothered to live up to the laws that apply to everyone else. I will begin with the D.C. bar dues problem. In his initial description of this problem Mr. Griffith did his best to downplay it, telling the committee in his questionnaire that his membership in the D.C. bar ``lapsed for non-payment of dues . . . due to a clerical oversight.'' At the committee hearing on his nomination, he tried to do the same, telling us that from the time he first began practicing law in North Carolina, and continuing through the time he practiced with a firm in D.C., he counted on his law firm to pay his bar dues. He went on further to say that when he took the job as Senate legal counsel he discovered the Government does not pay your professional fees. Here, I quote his testimony, where he told us: ``[W]hen I learned that the Senate wouldn't pay, I notified the D.C. bar to send the bar notices to my home, where I pay personal bills. They did so in '95, '96 and '97, and every time they sent a notice, I paid.'' The only problem arose, according to Mr. Griffith, in 1998, when, for reasons he cannot explain, the D.C. bar suddenly stopped sending him mail. He says he never received his bill for the 1998 dues year, does not remember receiving any of the follow-up notices the bar routinely sends, and simply forgot about his obligation until 3 years later, when he was seeking a certificate of good standing from the D.C. bar. All of this may seem relatively harmless but a more serious problem arises because what Mr. Griffith told us and what he testified to is not entirely true, it was not the whole truth. For example, his membership in the D.C. bar did not just lapse when he failed to pay his dues in 1998, it was actually suspended. That means for the 3 years the suspension lasted, he was not legally allowed to practice in reliance on his D.C. law license. And he was not only suspended once from the D.C. bar, he was suspended twice, once in 1998 for not paying his dues at all, and also the year before, in late 1997. Furthermore, we have also learned that while he managed to avoid suspension in 1996, he paid his bar dues late that year, as well. Contrary to his misleading testimony at his hearing, it seems that the only year Mr. Griffith actually paid his D.C. bar dues on time, after coming to the Senate in 1995, was in 1995. Two suspensions from the practice of law in 2 years, 3 late or nonexistent payments in 4 years, and an attempt to mischaracterize this embarrassing record are hardly just a single ``administrative oversight'' unless by that Mr. Griffith means to indicate that his single admitted error is that he does not comply with the law. What may be more disturbing than Mr. Griffith's failure to pay his D.C. dues, for whatever reason, is his lack of concern about the implications of having practiced law in D.C. without proper licensure. When I asked him if he had notified his clients from the period he was suspended, whether he had told his partners or even the law firm's liability insurance carrier, he brushed me off, telling me that his membership in good standing was reinstated once he paid his dues. Of course, that ignored my real question about the ramifications of having been suspended for 2 separate periods totaling more than 2 years. Clients should be notified, partners should be told, and courts should be contacted. The Department of Justice apparently agrees that suspension for failure to pay bar dues is a serious matter. Recent newspaper reports disclosed that the Department's Office of Professional Responsibility takes such a matter seriously enough to have opened an investigation into the case of a longtime career attorney there who, like Mr. Griffith, was suspended from the D.C. bar because he did not pay his dues. Unlike Mr. Griffith's case, the Department is concerned enough about such a suspension that they filed notices with the courts in every case this attorney worked on during the period of his suspension, notifying them that he was not authorized to practice at the time. This may impact the matters that Government attorney was supervising, which included the treatment and proper compensation of black farmers. Practicing law without a license is a serious matter. The facts surrounding Mr. Griffith's membership, or lack thereof, in the Utah bar are even more disturbing. Thomas Griffith began his service as assistant to the president and general counsel of BYU in the summer of 2000. At that time he was not a member of the Utah bar, he was suspended from membership in the bar of the District of Columbia, and he was an inactive member of the North Carolina bar. He apparently did not have a valid license to practice from any jurisdiction. According to BYU, its general counsel ``is responsible for advising the Administration on all legal matters pertaining to the University.'' In addition: All contracts, other legal documents and legal questions pertaining to the University or its personnel shall be presented to the Office of General Counsel or its staff members as directed for approval and/or recommendation. The General Counsel directs and manages all litigation involving the University and decides when to engage outside counsel and the terms and duration of outside counsel's representation. The General Counsel delegates the University's legal work among the lawyers in the office and supervises the work of the office. --https://bronx.byu.edurystlife/prod/Handbook/University/ Organization/President.html Mr. Griffith gave us a similar description of his duties, telling the committee: When University policy involves legal matters, I advise the President's Council and its members on the legal issues implicated . . . In addition, I supervise the work of the Office of the General Counsel, which includes interpreting University policy, participating in transactions involving the University and outside entities, overseeing litigation, assuring compliance with law, and coordinating activities with other University offices whose work involves legal issues such as human resources, risk management, and internal audit. --Responses of Thomas B. Griffith to the Written Questions of Senator Russell D. Feingold, Dec. 3, 2004, Q.1. But Utah law prohibits the practice of law in Utah by any person not ``admitted and licensed to practice law within this state.'' Rule 5.5 of the Utah Rule of Professional Conduct holds that, ``[a] lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.'' So, what made Mr. Griffith think he could practice law and not be a member of the Utah bar? Mr. Griffith testified to the committee that, ``it was my understanding that in Utah in-house counsel need not be licensed in Utah, provided that when legal advice is given, it is done so in close association with active members of the Utah bar.'' When I asked him in writing to explain how he came to that understanding, and to point out which Utah laws or bar rules might apply, Mr. Griffith told us only that this, ``understanding was formed over the course of the years of practicing law and as I had interacted with in-house counsel in a variety of settings including other Utah in-house counsel who were not members of the Utah bar.'' Mr. Griffith testified that he relied on an in-house counsel exception that does not exist in Utah statutes and is not recognized by the Utah Supreme Court, as Mr. Griffith was forced to concede. It was a most convenient and self-serving excuse. There is no such ``general counsel'' exception in Utah and there never has been. He could not point to any Utah statute or Utah Supreme Court pronouncement allowing this behavior because it does not exist as a matter of law. Moreover, his predecessor at BYU and the general counsels of the other universities in Utah are all members of the Utah bar. Previously, in his April 2003 letter to John Adams, then the president of the Utah bar, Mr. Griffith explained the matter differently and relied specifically on a former BYU general counsel and on unnamed persons at the Utah bar, saying that, ``I was told by my predecessor that the Utah bar had created'' what he referred to as a ``general counsel exception'' and that ``I didn't need to become a member of the Utah bar to perform my responsibilities. Subsequent conversations with people in your office as well as discussions with other general counsel around the state confirmed that understanding.'' Mr. Griffith has never been able to identify who at the Utah bar he claims advised him that he did not need to join the bar. This fundamental refusal to abide by the law is all the more troubling by Mr. Griffith's obstinate behavior in refusing to take the bar in order to cure his failure. This is not complicated: Get licensed. Indeed, during the course of committee consideration he admitted that when he asked a second-year law student to research the matter she came back to him and advised that he should take the bar. Yet here we are, with the Senate being urged to confirm someone to a lifetime appointment as a Federal judge on a court with jurisdiction over important cases that can have nationwide impact and that nominee has adamantly refused to follow legal requirements in his own legal practice. Mr. Griffith did respond for the first time in his December 3, 2004 answers to some of our written questions that he had spoken to Bar President Adams in March 2002. But in his answers, Mr. Griffith reported the subject of that conversation was whether or not, in order to join the bar, he would need to take the bar examination, rather than whether or not he needed to become a bar member in the first place. Mr. Griffith explained to the committee that he took Mr. Adams' silence on the unasked question to be an endorsement of his self-serving position that he did not need to be a member of the Utah bar to carry out his responsibilities at the University.'' To Mr. Griffith, Mr. Adams' silence on this unarticulated question apparently overrode all of the rules of the Utah bar and the laws of the State of Utah. There was one official representative of the Utah bar who told Mr. Griffith in no uncertain terms what to do; namely, take the Utah bar examination. Asked by Mr. Adams to respond to the April 10, 2003 letter, Katherine Fox, Utah bar general counsel, wrote to Mr. Griffith on May 14, 2003, telling him she was ``surprised'' he thought there was a general counsel exception, and explaining that in his circumstances there was no way to waive into the Utah bar and become a member without taking the bar exam. In her letter, and in plain, simple-to-understand words, Ms. Fox instructed Mr. Griffith to take the bar examination at the earliest opportunity. Ms. Fox wrote Mr. Griffith: ``You are fortunate, however, to have a viable option remaining, i.e., admittance by examination and I would encourage you to start preparing your application as soon as possible.'' In addition, she ``strongly'' encouraged him to, ``review [his] current duties,'' and to either limit his work to non-legal practice or, if legal activities were unavoidable in the interim until he could pass the exam, be admitted to the Utah bar and cure his deficiency, ``to closely associate with someone who is actually licensed here and on active status.'' She closed by reminding him that the character and fitness portion of the evaluation of prospective members of the Utah bar could be affected by ``[p]racticing law without a Utah license.'' I ask unanimous consent that Mr. Griffith's letter to the Utah bar and Katherine Fox's response be printed in the Record.

Mr. LEAHY. This response from a career lawyer in the Utah bar made before political pressure was ratcheted up to defend a Republican nominee, seemed pretty straightforward to me. That was almost 2 years ago and still Mr. Griffith has not taken the bar exam, has not made arrangements to take the bar and, according to his testimony in answer to my questions last month, has no intention of taking the bar and becoming a member of the Utah bar despite having practiced law there for 5 years. In an interpretation worthy of the Queen of Hearts from Alice in Wonderland, Mr. Griffith and his supporters have defied logic and reason by turning Ms. Fox's letter upside down in an attempt to characterize it as something other than it is and to condone his conduct. If he will make this self-serving interpretation in this case, what makes anyone think that he will not be the same sort of ends- oriented judge that will twist facts and law in cases he rules on from the federal bench? Ms. Fox's recommendation that he ``closely associate'' himself with a Utah lawyer until he takes the bar and becomes a member of the bar was not offered as an indefinite safe harbor that permits him to violate Utah law. Ms. Fox's letter is being misused and mis-char-acterized as an invitation to flout the law. This is the kind of reinterpretation in one's own interest that characterizes judicial activism of the worst sort when employed by a judge. Although he can point to no time before having read Ms. Fox's letter where he used the phrase ``closely associate,'' and can show us no evidence that he arranged his work at BYU in accordance with this advice, Mr. Griffith has in hindsight tried to assert that he somehow always knew he needed to ``closely associate'' with Utah lawyers. Indeed, he variously responded to the committee that in his view he ``closely associated'' if he first gave legal advice to a University official in a private meeting and then sometime later told a member of his staff who was admitted to the Utah bar about it. He points to former bar president John Adams' letter of June, 2004, and to Utah bar executive director John Baldwin's letter of July, 2004 as support for his position, but these letters do not bolster his case. First of all, each is written long after Mr. Griffith's inquiry of the bar, and long after Katherine Fox told him to take the bar, but conveniently provided by his friends and supporters in the summer of 2004 as the investigation into his bar membership was beginning. In any case, neither of the letters says anything to undermine Ms. Fox's letter. Indeed, the support letters only speak in the vaguest, most noncommittal terms. Mr. Adams says that Ms. Fox's letter ``accurately answered your questions, and . . . recommended a course of action to follow in your work so long as you were not licensed in the State of Utah.'' Mr. Baldwin's letter is even stronger, telling Mr. Griffith: ``[T]hose who engage in the practice of law in Utah must be licensed by the Utah Supreme Court through the Utah State bar. There is no general counsel exception rule.'' Likewise, the letter Mr. Griffith produced from five former presidents of the Utah bar is of no effect. Aside from their obvious interest in supporting Senator Hatch's candidate who President Bush nominated and who is affiliated with one of the State's most powerful and influential institutions, their letter does not say much. They reiterate that there is no general counsel exception to the Utah bar membership rules, and say only that if a lawyer is not practicing Utah law he may closely associate himself with a Utah lawyer to do those parts of the job. They make no judgment about the sort of work Mr. Griffith is doing, or even whether, in their words, he ``lived up to this standard'' or whether his vague implementation of how he ``closely associated'' was ever explained to them, let alone whether they would have viewed it as passing muster. The other person we know of who looked at this question for Mr. Griffith was a second-year law student he asked to research the Utah laws and practice on bar admissions regarding in-house counsel in January 2004. By that time, Mr. Griffith had already been practicing law in Utah for 4 years. One can suspect he made this request at that time because his subsequent nomination was then under consideration at the White House. According to Mr. Griffith, who now seeks to claim attorney-client privilege and refuses to provide the committee and the Senate with the materials, she did not definitively complete her research: ``She recommended, therefore, that the safest course for a Utah corporation would be to ask its in-house lawyers to join the Utah bar.'' When we asked for the memorandum written by this law student, we were stonewalled by Griffith and BYU, which claimed privilege for this document. It is not clear to me why the university would be able to claim privilege for a document prepared in response to Mr. Griffith's personal problems with bar membership, or why once he himself revealed its contents we are not now entitled to see it. Nonetheless, we have not been able to see it. But, whatever the status of the specific memo, it comes down to this: A second-year law student in a truncated research assignment had enough sense to recommend that in-house counsel join the Utah bar. If she had known that such in-house counsel admits to practicing law in Utah, I suspect her advice would have been even more definitive. Of course, that is the prudent course and the one consistent with Utah law. After 5 years, Mr. Griffith has refused to take the normal steps taken by scores of others every year in Utah and thousands of lawyers around the country and take the State's bar exam in order to gain admission to the State bar. Mr. Griffith has offered nothing in the way of legal authority or analysis that might begin to refute the common-sense conclusion one must reach after an examination of the law. Mr. Griffith has been practicing law in Utah without a Utah license. His excuses to the contrary are insufficient and wrong. He admits that he is practicing law in Utah. He does not have a Utah license to do so. After 5 years, he would appear to be in violation of Utah Code Section 78-9-101, and Rule 5.5 of the Utah Rules of Professional Conduct. There is no ``general counsel'' or ``in-house counsel'' exception on which he can rely to justify his practice of law in Utah since 2000 without having become a member of the Utah bar. In addition to that threshold matter of practicing law without being a member of the Utah bar, there are other reasons for serious concern about Mr. Griffith's fitness to be a member of the United States Court of Appeals for the District of Columbia Circuit. I have already alluded to his creative, ``activist'' reading of the facts in law in connection with his bar admission problems. In addition, he has spoken in Federalist Society circles of his judgment that President Clinton was properly impeached and that he would have voted for his conviction and removal from office. Given his role as Senate Legal Counsel at the time, these public musings are unseemly and unsound. Rather than campaigning for this nomination, Mr. Griffith would have better spent his time preparing for and taking the Utah bar exam. His judgment is likewise brought into serious question by his views on title IX of our civil rights laws. This charter of fundamental fairness has been the engine for overcoming discrimination against women in education and the growth of women's athletics. I urge all Senators to think about our daughters and granddaughters, the pride we felt when the U.S. women's soccer team began winning gold medals and World Cups, the joy they see in young women with the opportunity to play basketball and ski and compete and grow. With the recent reinterpretation of title IX being imposed by this administration in ways that will no doubt be challenged through the courts, we may now understand why the Bush administration sees the appointment of Mr. Griffith to the D.C. Circuit Court as such a priority. His narrow views on title IX were unveiled during his efforts as a member of the Bush administration Secretary of Education's Commission on Opportunity in Athletics, to constrict the impact of title IX. Does anyone doubt that he would rule that the Bush administration's revision through regulations should be upheld? The U.S. Supreme Court recently decided that whistleblowers are protected in the title IX context. That was a close 5-4 decision in which Justice O'Connor wrote for the majority. Just the other day the Justices refused to hear a challenge to an appellate court decision that essentially found that title IX could not be blamed for cutbacks in men's athletic programs. These recent legal developments regarding title IX serve to remind us how important each of these lifetime appointments to the Federal courts is. In light of the record on this nomination, I am not prepared to take a chance on it and will vote against it. It is my understanding we are voting at 10.

Mr. LEAHY. Have the yeas and nays been requested?

Mr. LEAHY. I am sorry. I could not hear.

Mr. LEAHY. Mr. President, I probably would not object. I would point out that I was responding to the distinguished Republican leader who had spoken an equal amount of time on Mr. Griffith. I had spoken yesterday considerably less time, on the same nomination, than the distinguished senior Senator from Utah. I also know both the Republican and Democratic cloakrooms have notified their Members that we are going to vote at 10. There are a number of hearings that have been established based on that. As a matter of courtesy, I am not going to object, but I wanted the distinguished Senator from Utah to know I took the same amount of time the distinguished Republican leader did on the same thing, and overall less time than the distinguished Senator from Utah has taken. I will not object.

Mr. LEAHY

Mr. LEAHY. Mr. President, it has been well over 3 years since the administration began to hold detainees at the U.S. Naval Base in Guantanamo Bay, Cuba. The first batch of then only 20 detainees arrived in January 2002. There are now more than 500 detainees at Guantanamo. I cannot give you an exact number because our own Government refused to tell the American people an exact number. In fact, there is much that we do not know about our Government's activities at Guantanamo. From the start, the administration's answer to every question regarding this secret detention facility has been: Trust us. Trust us that we know the law and that we will comply with it. Trust us to treat detainees humanely and in accordance with our laws and treaties and the great and wonderful traditions of the United States. Trust us that Guantanamo will make Americans safer. More than 3 years later, the one thing we know for sure about Guantanamo is that any trust we may have had was misplaced. First, the administration either did not know or did not follow the law. The list of reversals of this administration's policies and practices at Guantanamo is long. From the Supreme Court's rejection of the claim that Guantanamo Bay is a land of legal limbo or, as one administration official said, ``the legal equivalent of outer space,'' to a recent district court holding that the current military commission regulations are unlawful, there is much that needs attention and correction. Secondly, the administration has not lived up to its promise to treat detainees humanely. Even with the administration's continuing stonewalling against any independent investigation into the mistreatment of detainees, we continue to learn of more abuses on an almost daily basis. Does anybody question that if American POWs were being treated in this way, we would have demonstrations in the streets of America, and everybody from the President down through every single Member of Congress would be up in arms and calling for changes? But when these actions take place at Guantanamo, the administration refuses to acknowledge any wrongdoing. The dangerous implications that this posture has for our own troops and citizens becomes more obvious every day. Third, and this is the bottom line: Guantanamo has not made our country safer. It is increasingly clear that the administration's policies have seriously damaged our reputation in the world, and they are making us less safe. The stain of Guantanamo has become the primary recruiting tool for our enemies. President Bush often speaks of spreading Democratic values across the Middle East, but Guantanamo is not a reflection of the values that he has encourages other nations to adopt. The United States has often criticized other nations for operating secret prisons where detainees are hidden away and denied any meaningful opportunity to contest their detention. Now we have our own such prisons. Even if the administration fails to see the hypocrisy of this situation, I can assure you, the rest of the world does not. Guantanamo Bay, in addition to Abu Ghraib, is a national disgrace and international embarrassment to us, to our country's ideals, and a festering threat to our security. It is a legal black hole that dishonors the principles of a great nation. America was once very rightly viewed as a leader in human rights and the rule of law, but Guantanamo has drained our leadership, our credibility, and the world's good will for America at alarming rates. Even our closest allies cannot condone the policies embraced by this Government, not to mention the significant damage that has been caused by allegations and proven incidents of detainee abuse in Iraq, Afghanistan, and Guantanamo. These are not the policies of a great and good nation such as ours. This is not the American system of justice that I have grown up honoring and appreciating. Within the last 2 weeks, I was at a meeting of NATO parliamentarians. These are parliamentarians from the countries that are our closest allies. They are members of the NATO alliance with the United States and proud to be part of that alliance. Every one of them I spoke with said the same thing: How can America continue to be a beacon for democracy with the stain of Guantanamo? Some of these countries were countries that originally had been behind the Iron Curtain. With the efforts of this administration and the Clinton administration, we see them now as proud members of NATO. They look to the United States for leadership, and they ask us: Why Guantanamo? The 9/11 Commission understood that military strength alone is not sufficient to defend our Nation against terrorism. There has to be a role for working cooperatively with the rest of the world. In its report, the Commission said that the Government ``must define what the message is, what it stands for. We should offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors.'' Guantanamo Bay is not the way to do this. The administration got itself into this mess because it refused to accept Congress as a partner in its so-called war on terror and insisted on acting unilaterally. It would not even involve Congress, even though Congress is controlled by members of the President's party. Following the start of combat in Afghanistan in October 2001, I urged President Bush to work with Congress to fashion appropriate rules and procedures for detaining and punishing suspected terrorists. All of us agree, if you have terrorists, if it is proven they are terrorists, they should be detained and punished. As I noted at the time, our Government is at its strongest when the executive and legislative branches of Government act in concert. Unfortunately, the President was determined to go it alone. Up until now, this Republican-led Congress has been content to go along for the ride. As the administration dug itself deeper and deeper into a hole, we stood idly by. Instead of providing checks and balances, we simply wrote one blank check after another. This has to change. The Constitution provides that Congress, not the President, has the power to ``make Rules concerning Captures on Land and Water.'' Congress, not the President, has the power to ``define and punish Offenses against the Law of Nations.'' And perhaps most importantly, Congress, not the President, has the power of the purse. Maybe each one of us should take a few moments and reread the Constitution that we are sworn to uphold. What is the administration's plan for Guantanamo Bay, assuming there is one? What does the administration intend to do with the more than 500 detainees still imprisoned there? How many will be released and when? How many will be charged and tried and when? The administration consistently insists that these detainees pose a threat to the safety of Americans. The Vice President said that the other day. If that is true, then one would have to assume we have credible evidence to support it. If there is such evidence, then let's prosecute these people. If we have the evidence, prosecute them. But we also know that some of the detainees have been wrongly detained. I suspect there are others who have not yet been released against whom the evidence is weak at best. It is one thing if they are being detained in accordance with the Geneva Conventions. But if not, they do not belong there. Guantanamo Bay is causing immeasurable damage to our reputation as a defender of democracy and beacon of human rights around the world. It is becoming a legal black hole, a rallying cry for our enemies, fueling hostilities against us and our policies. We have always been able to say that those who strike out against us do not uphold the rule of law as we do. We have always been able to point out that the kind of actions they carry out are horrible, horrific. And every one of us, Democrat and Republican, have found them abhorrent and have said so. Yet the administration has not articulated a coherent plan to repair the damage. Every one of us knows from what we hear around the world that we have been damaged by Guantanamo. Why carry out acts that do not follow our own laws, our own Constitution, our own tradition? We need a plan from the administration to repair this damage. The Congress has abdicated its oversight responsibility for far too long. The Administration has placed this nation in an untenable situation, and it is time for Congress to demand a way out. Mr. President, as I said, this doesn't reflect the feeling of just the Democratic Senator from Vermont. Similar expressions have been made by Republicans and Democrats, leading people in this country, people I respect greatly, who point out what we all know--and maybe we don't like to talk about it--Guantanamo is a blot on the conscience of America--a good and great conscience, one that has been a shining beacon to so many countries. Let's not allow this blot. Let's take the steps necessary to erase it.

Mr. LEAHY

Mr. LEAHY. Mr. President, the resolution for consideration today details the Senate's shameful failure to pass anti-lynching legislation despite several attempts. Even as seven Presidents called for anti-lynching legislation, and the House three times passed such bills, the Senate has steadfastly refused to act. At least 4,749 people were reported lynched between 1881 and 1964, with the vast majority of the victims being African-American. Shockingly, 99 percent of the perpetrators of these horrible acts escaped punishment from State or local authorities. My State was one of only four or five States that did not have a lynching during that time. It wasn't just one or two States. It was every State in the Union, every State of the then-48 States with the exception of only four or five. Even though my State did not have any, I cosponsored this resolution because I believe an apology is in order. I have cosponsored this resolution because an apology is surely in order, and I believe Senator Landrieu deserves great credit for bringing this important issue to the Senate's attention. This public act of contrition is an important gesture today to take responsibility for the civil rights misdeeds of the past. But it is also an opportunity for Congress to show the country that we will not tolerate similar offenses. As we pass this resolution, it is fitting to carry this principle to the present and act in kind to prevent civil rights and human rights abuses occurring now in this country and around the world. As we pass this resolution, we should also recognize that it is long past the time to pass the Local Law Enforcement Enhancement Act, which would strengthen and extend our Federal hate crimes law. The Senate has repeatedly passed this bill, with 65 votes in the last Congress. The Republican leadership in the House, with the acquiescence of the Bush White House, has killed it. It is fitting that we apologize for past inaction, but that does not obviate the need to solve today's problems. By the same token, we should reauthorize the Voting Rights Act in this Congress and not wait for 2007. We need to ensure that this law, one of the most important bills of the 20th century, remains in effect to safeguard the fundamental right of all citizens to participate fully in our democracy. We should also remember the leading role this country played in drafting the Universal Declaration of Human Rights, which was modeled on our own Bill of Rights. As the country that, especially since the Second World War, has been looked to around the world as a beacon of hope for victims of arbitrary arrest, torture, and the denial of fundamental freedoms, we need to set a far better example than we are today. The atrocities and dehumanizing mistreatment that have occurred in U.S. military detention facilities in Afghanistan, Iraq and Guantanamo, are eerily reminiscent of some of the despicable acts described in this resolution. In addition, the continued assistance the administration is providing to foreign security forces that violate human rights, directly contradict the message we are trying to send with this resolution. We should not be satisfied with long overdue apologies. There are serious human rights problems that we need to address today. A few years ago, I had the opportunity to examine the book ``Without Sanctuary: Lynching Photography in America,'' which is referred to in this resolution. The haunting photographs in this book make plain the evil that lurked in this Nation not very long ago, and make it impossible to accept the fact that the individuals and mobs that committed these heinous acts by and large suffered no consequences. This resolution deserves our immediate approval, and I hope it provides some comfort to the descendants of the victims of these horrible crimes.

Mr. LEAHY

Mr. LEAHY. Mr. President, I spoke on the Senate floor last week about the benefits to all if the President were to consult with Members of the Senate from both sides of the aisle on important judicial nominations. I return today to emphasize again the significance of meaningful consultation on these nominations because it bears repeating given what is at stake for the Senate, the judiciary and this country. In a few more days the United States Supreme Court will complete its term. Last year the chief justice noted publicly that at the age of 80, one thinks about retirement. I get to see the chief from time to time in connection with his work for the Judicial Conference and the Smithsonian Institution. Sometimes we see each other in Vermont or en route there, and I am struck every time by his commitment. I marvel at him. I think that his participation at the inauguration earlier this year sent a powerful positive message to the country. I know that the chief justice will retire when he decides that he should, not before. He has earned that right. I have great respect and affection for him and he is in our prayers. In light of the age and health of our Supreme Court justices, speculation is accelerating about the potential for a Supreme Court vacancy this summer. In advance of any such vacancy, I have called upon the President to follow the constructive and successful examples set by previous Presidents of both parties who engaged in meaningful consultation with Members of the Senate before selecting a nominee. This decision is too important to all Americans to be unnecessarily embroiled in partisan politics. I said again last week that should a vacancy arise, I stand ready to work with President Bush to help him select a nominee to the Supreme Court who can unite Americans. I have urged consultation and cooperation for 4 years and have reached out, again, over the last several months to this President. I hope that if a vacancy does arise he will finally turn away from his past practices, consult with us and work with us. Some Presidents, including most recently President Clinton, found consultation with the Senate in advance of a nomination most beneficial in helping lay the foundation for successful nominations. President Reagan, on the other hand, disregarded the advice offered by Senate Democratic leaders and chose a controversial, divisive nominee who was ultimately rejected by the full Senate. In his recent book, ``Square Peg,'' Senator Hatch recounts how in 1993, as the ranking minority member of the Senate Judiciary Committee, he advised President Clinton about possible Supreme Court nominees. In his book, Senator Hatch wrote that he warned President Clinton away from a nominee whose confirmation he believed ``would not be easy.'' Senator Hatch goes on to describe how he suggested the names of Stephen Breyer and Ruth Bader Ginsburg, both of whom were eventually nominated and confirmed ``with relative ease.'' Indeed, 96 Senators voted in favor of Justice Ginsburg's confirmation, and only 3 Senators voted against; Justice Breyer received 87 affirmative votes, and only 9 Senators voted against. The Constitution provides that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint'' judges. For advice to be meaningful it needs to be informed and shared among those providing it. Those recent examples are not the only examples of effective and meaningful consultation with the Senate. According to historians, almost 150 years ago, in 1869, President Grant appointed Edwin Stanton to the Supreme Court in response to a petition from a majority of the Senate and the House. More than 70 years ago, in 1932, President Hoover consulted with Senator William E. Borah regarding who he should nominate to succeed Justice Oliver Wendell Holmes. According to historical reports, as has been confirmed by Republican Senators, Senator Borah counseled the President to select Benjamin Cardozo from his list of potential nominees. Bipartisan consultation would not only make any Supreme Court selection a better one, it would also reassure the Senate and the American people that the process of selecting a Supreme Court justice has not become politicized. Recently, a bipartisan group of 14 Senators joined together to avert an unnecessary showdown in the Senate over the effort to invoke the ``nuclear option.'' That would have changed 200 years of Senate tradition and the protection of minority rights. In their agreement the bipartisan coalition say the following: We believe that, under Article II, Section 2, of the United States Constitution, the word ``Advice'' speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations. We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration. Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate. We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold. I agree. Bipartisan consultation is consistent with the traditions of the Senate and would return us to practices that have served the country well. They are right to urge greater consultation on judicial nominations. In that regard, I was pleased to see the President respond to a question at a news conference 2 weeks ago by agreeing to consult with the Senate about his nomination should a vacancy arise on the Supreme Court. I see that as a positive development. More troubling are reports that the White House plan does not include meaningful consultation at all, but a ``war room'' and some sort of preemptive contact to allow them to pretend they consulted without anything akin to the kind of meaningful consultation this important matter deserves. If the White House intends to follow that type of plan, it would be most unfortunate, unwise and counterproductive. Though the landscape ahead is sown with the potential for controversy and contention should a vacancy arise on the Supreme Court, confrontation is unnecessary. Consensus should be our mutual goal. I would hope that the President's objective will not be to send the Senate nominees so polarizing that their confirmations are eked out in narrow margins. This would come at a steep and gratuitous price that the entire Nation would have to pay in needless division. It would serve the country better to choose a qualified consensus candidate who can be broadly supported by the public and by the Senate. The process begins with the President. He is the only participant in the process who can nominate candidates to fill Supreme Court vacancies. If there is a vacancy, the decisions made in the White House will determine whether the nominee chosen will unite the Nation or will divide the Nation. The power to avoid political warfare with regard to the Supreme Court is in the hands of the President. No one in the Senate is spoiling for a fight. Only one person will decide whether there will be a divisive or unifying process and nomination. If consensus is a goal, bipartisan consultation will help achieve it. I believe that is what the American people want and what they deserve. If the President chooses a Supreme Court nominee because of that nominee's ideology or record of activism in the hopes that he or she will deliver political victories, the President will have done so knowing that he is starting a confirmation confrontation. The Supreme Court should not be an arm of the Republican Party, nor should it be a wing of the Democratic Party. If the right-wing activists who were disappointed that the nuclear option was averted convince the President to choose a divisive nominee, they will not prevail without a difficult Senate battle. And if they do, what will they have wrought? The American people will be the losers: The legitimacy of the judiciary will have suffered a damaging blow from which it may not soon recover. Such a contest would itself confirm that the Supreme Court is just another setting for partisan contests and partisan outcomes. People will perceive the Federal courts as places in which ``the fix is in.'' Our Constitution establishes an independent Federal judiciary to be a bulwark of individual liberty against incursions or expansions of power by the political branches. That independence is at grave risk when a President seeks to pack the courts with activists from either side of the political spectrum. Even if successful, such an effort would lead to decision-making based on politics and forever diminish public confidence in our justice system. The American people will cheer if the President chooses someone who unifies the Nation. This is not the time and a vacancy on this Supreme Court is not the setting in which to accentuate the political and ideological division within our country. In our lifetimes, there has never been a greater need for a unifying pick for the Supreme Court. At a time when too many partisans seem fixated on devising strategies to force the Senate to confirm the most extreme candidate with the least number of votes possible, I have been urging cooperation and consultation to bring the country together. There is no more important opportunity than this to lead the Nation in a direction of cooperation and unity. The independence of the Federal judiciary is critical to our American concept of justice for all. We all want Justices who exhibit the kind of fidelity to the law that we all respect. We want them to have a strong commitment to our shared constitutional values of individual liberties and equal protection. We expect them to have had a demonstrated record of commitment to equal rights. There are many conservatives who can meet these criteria and who are not rigid ideologues. This is a difficult time for our country and we face many challenges. Providing adequate health care for all Americans, improving the economic prospects of Americans, defending against threats, the proliferation of nuclear weapons, the continuing upheaval and American military presence in Iraq, are all fundamental matters on which we need to improve. It is my hope that we can work together on many issues important to the American people, including maintaining a fair and independent judiciary. I am confident that a smooth nomination and confirmation process can be developed on a bipartisan basis if we work together. The American people we represent and serve are entitled to no less.

Mr. LEAHY

Mr. LEAHY. I thank the Senator. Mr. President, I suggest the absence of a quorum.

Mr. LEAHY. I appreciate that. Mr. President, last month 80 American service men and women died in Iraq, along with more than 700 Iraqis. This week, there are reports that the Army National Guard and the Marines are not meeting their recruitment goals, in spite of the bonuses and benefits being offered. The price of gasoline, prescription drugs, health care, and so many essentials for American working families are rising a lot faster than their wages. This week, the Washington Times reported that the rate of increase in the Consumer Price Index doubled in the last year. This week, we have learned that General Motors has planned to lay off another 25,000 workers and that other companies are not expanding or are, even worse, downsizing. The report of only 78,000 jobs created last month puts us back to the dismal levels that have characterized so many months during this administration. A loss of our manufacturing jobs continues at a steady drip. Millions are suffering and dying in Africa. The British Prime Minister visited to urge greater efforts to help. But, of course, we debated none of these issues in the Senate. The Republican leadership continued to force us to expend our precious days debating something else. And what is that? The Senate's time has been focused not on these things that touch the pocketbooks of Americans but almost exclusively on this administration's divisive and contentious judicial nominees. Over the last several months, and for many days and weeks over the last few years, the work of the Senate has been laid aside by the Republican leadership to force debate after debate on divisive nominations, on people who are going to be paid almost $200,000 a year in lifetime jobs. Those who are barely able to make their week's rent or their month's mortgage ask what we are doing in the Senate. Among the matters the Senate has neglected this week in order to devote its attention to these nominations are many issues that concern the American people. One matter is the consideration and passage of the NOPEC bill. It is bipartisan legislation. It affects all Americans, Republicans and Democrats. Senator DeWine, a Republican of Ohio, Senator Kohl, a Democrat of Wisconsin, are key sponsors. The sponsors of the bill include Senator Grassley, Senator Specter, Senator Coburn, and Senator Snowe. With an increase in gasoline prices of almost 50 percent during the four years of the Bush Presidency, with Americans having to pay so much more to drive to work, to get their kids to school, just to get around to conduct the daily business of their lives, the Republican leadership of the Senate is ignoring this substantial burden on American working families. This week, the national average price for a gallon of regular gasoline was $2.12. When the President took office, it was $1.46. We just heard reports that in Vermont and New Hampshire home heating oil prices will be up another 30 percent this fall and winter. The artificial pricing scheme enforced by OPEC affects all of us, and it is especially tough on our hard-working Vermont farmers. Rising energy expenses can add thousands of dollars a year to the costs of operating a 100-head dairy operation, a price that could mean the difference between keeping the family business alive for another generation or shutting it down. With summer coming, many families are going to find that OPEC has put an expensive crimp in their vacation plans. Some are likely to stay home; others will pay more to drive or to fly so that they can visit their families or take their well-deserved vacations. Americans deserve better. If the White House is not going to intervene, then Congress has to act. It is past time--it is past the time--for holding hands and exchanging kisses with Saudi princes, princes who have artificially inflated the price of gasoline. The President's jawboning with his close friends in Saudi Arabia has proven unsuccessful. It is time to act, but the Senate, under Republican leadership, is choosing instead to revisit another extreme judicial nomination, one that has already been considered. The production quota set by OPEC continues to take a debilitating toll on our economy, our families, our businesses, industry, and farmers. Last year and again earlier this year, the Judiciary Committee voted to report favorably to the full Senate the bipartisan NOPEC bill, which is short for No Oil Producing and Exporting Cartels Act. Our legislation would apply America's antitrust laws to OPEC's anti- competitive cartel. It would prohibit foreign states from working together to limit production and set prices, restrain the trading of petroleum and natural gas, when such actions affect the United States. It would give the Department of Justice and the Federal Trade Commission authority to enforce the law through antitrust actions in Federal courts. Why not give the Justice Department clear authority to use our antitrust laws against the anti-competitive, anti-consumer conduct in which the OPEC cartel is engaged here in the United States? This bipartisan bill was reported by the Judiciary Committee more than a year ago, in April of last year. It was reintroduced this year and reported, again, in April of this year. It has been stalled on the Senate Business Calendar for too long. It is a bipartisan initiative that could help in the fight to reduce gasoline prices now and heating oil prices in the fall and winter. It deserves a vote. Why not have an up or down vote on this measure without further delay by the Republican leadership? Why can't we do that when we have seen gasoline go from $1.46 to $2.12 in this President's administration? No, instead we spend weeks and months, not passing legislation that would win the support of a majority of Republicans and Democrats, but talking about a handful of people who are going to get lifetime, well-paid jobs. Another consequence of the Republican leadership's fixation on carrying out this President's attempt to pack the Federal courts with activist jurists may be much-needed asbestos compensation reform. For more than 3 years, I have been working on asbestos reform to provide compensation to asbestos victims in a fair and more expedited fashion. Chairman Specter and I have worked closely on S. 852, the FAIR Act. It, too, is pending on the Senate Business Calendar, even though it was voted out in a bipartisan effort last month. Chairman Specter deserves enormous credit for this achievement, even though we were slowed significantly by the extensive debate on contentious nominees and the nuclear option the past few months. We have been working in good faith to achieve a bipartisan legislative process on this issue. We have done so, despite criticism from the left and the right. In fact, after the bill was successfully reported by the committee, Senator Hatch called it the most important measure the Senate would consider this year for the American economy. Are we debating it on the floor? No. We are debating a handful of right-wing activist judges for lifetime, highly paid jobs. There are many items that need prompt attention. The Armed Services Committee completed its work on the Department of Defense authorization bill. But we are seeing the Republican leadership delay action on the Defense authorization bill at a time when we have so many of our men and women under arms overseas. I don't know why they are doing it, unless it is to allow more activist judges to come through. At a time when we have young men and women serving their country around the world, and we are talking about the recently recommended base closings, I would have thought the Defense authorization would be more of a priority than three or four activist judges. The Senate Energy Committee successfully completed its consideration of an Energy bill, and it was reported to the Senate with a strong bipartisan majority. Despite its balance and a bipartisan vote, the Senate Republican leadership said, no, we can't talk about it. We have to talk about a couple more right-wing activist judges. Another matter that deserves timely attention is the Stem Cell Research Enhancement Act which was just passed by the House of Representatives. It is another bipartisan effort that deserves our attention. It had 200 House sponsors, led by Congressman Castle and Congresswoman DeGette. It passed with 238 votes. It is critically important. It authorizes work on embryonic stem cells which otherwise would be discarded, work which holds great promise and hope for those families suffering from debilitating disease and injury. More effective treatments for Parkinson's, Alzheimer's disease, diabetes, for spinal cord injuries, for many other diseases are all possibilities. Why are we not debating that? We have three or four more activist right-wing judgeships for lifetime, highly paid positions. That is far more important than stem cell research. While the administration continues to talk about its efforts to weaken Social Security, there is bipartisan legislation we should be considering, the Social Security Fairness Act. Are we going to talk about that? No. Will we talk about the fact that the administration is raiding the Social Security fund to pay for their war in Iraq? That is something they don't want to talk about. They want to talk about Social Security failing, but they don't talk about the fact that they have to take the money out of the Social Security fund to pay for the war in Iraq. We can't talk about the Social Security Fairness Act here on the floor because we have to take the time for three or four more right- wing activist judges. The bill I talked about is a bill that Republican and Democratic Senators have cosponsored over the years to protect the Social Security retirement of police officers. Those on the front lines protecting all of us from crime and violence should not see their Social Security benefits reduced. That needs fixing. We could have done that easily this week. But, no, we can't protect our police officers. Instead, we will make sure that a handful of right-wing activist judges get highly paid lifetime jobs. These are merely examples of some of the business matters the Republican majority of the Senate has cast aside to force more debate on more contentious nominees. The Senate could be making significant legislative progress on an agenda that would result in much-needed and tangible relief to the American people on a number of important fronts. We could be acting to lower gas prices, authorize actions against illegal cartels, make asbestos compensation efficient and effective, authorize vital scientific research, provide fairness to police officers and to make health care more affordable, create new and better jobs and give our veterans and their families the support they need and deserve. Instead, the Republican leadership of the Senate continues its narrow focus on helping this Administration pack the federal courts with extreme nominees. For more than four years, we have seen the Republican congressional leadership and the administration ignore the problems of Americans with a single-minded effort to pack and control the Federal courts. Unemployment, gas prices, the number of uninsured, the Nation's budget, the trade deficit were all lower when President Bush assumed office. Through Republican Senate obstruction of more than 60 of President Clinton's moderate and qualified judicial nominees, more than 60 of President Clinton's nominees who were subjected to a pocket filibuster by Republicans, judicial vacancies went up. But let's take a look. Since President Bush came in, what are the things that have gone up? Unemployment has gone up 21 percent. Since President Bush came in, what has gone up? The budget deficit has gone up. It has gone from a $236 billion surplus under President Clinton to a $427 billion deficit under President Bush--$663 billion down the rat hole. What else has gone up? The price of gas has gone from $1.42 to $2.10. That is not helping the average American. Let's take a look at the trade deficit. It has gone up from $36 billion to $55 billion. How about the percentage of the uninsured? That has gone up another 10 percent. But the full-time, highly paid positions of judgeships is the one thing that has come down. Judicial vacancies have come down 49 percent. It seems that is far more important than seeing projected trillions of dollars in surpluses go to trillions of dollars in projected deficits, far more important than the problem we create when we allow the Saudis, the Chinese, the South Koreans, the Japanese, and others to pay our bills but then be able to manipulate our economy. It seems wrong. We helped the President confirm a record number of his judges, but we Democrats would like to see us talk about the people who are out of work, the price of gasoline, the huge deficits that have been created by this presidency. We know that yesterday the Senate confirmed Janice Rogers Brown to the Court of Appeals for the D.C. Circuit, despite the fact she is a divisive and controversial nominee. She was opposed by both her home State Senators because she had a record so extreme it marked her as one of the most activist judicial nominees ever chosen by any President. In the past, when both Senators from a nominee's State opposed them, the person, even if highly qualified, would be turned down. In this case, we have somebody who is not qualified, an activist judge opposed by both of her State's Senators, who still passed. I mention that because I remember Justice Ronnie White, now the first African American to serve as Chief Justice of the Missouri Supreme Court. When the two Senators from his home State, Republican Senators, said they were opposed to him, what happened? In 1999, every Republican Senator came on to the floor and voted down Justice Ronnie White, even though he had been voted out of the Judiciary Committee with heavy support. They said: Whoops, he may be this distinguished African-American jurist from Missouri. But we have two Senators from his State who oppose him so we will vote him down. And they did. But yesterday, what a difference. What a difference if you have a Republican in the White House. Those same Republican Senators, joined by new Republican Senators, the same Republican Senators who told me, ``We know that Justice Ronnie White is well qualified, but, after all, we have to follow the fact that the two Senators from his State say they don't want him, so we have to vote him down,'' those same Senators come up here and meekly come in, in lockstep, and vote for Judge Brown, even though the two home-state Senators, for very good reasons, opposed her. Last week, all but one Republican Senator voted to confirm Priscilla Owen. Yesterday's vote on the Brown nomination apparently indicates Republican Party discipline has been restored. For all the talk about profiles in courage and Senators voting their conscience, the Republican majority has reduced the Senate to a rubberstamp of this President's extreme and activist nominees. Even though Senators will tell you privately they would vote against this person if it was secret ballot, the White House tells them what to do. William Pryor has argued that Federal courts should cut back on the protections of important and well-supported Federal laws, including the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Civil Rights Act of 1964, the Clean Water Act, the Violence Against Women Act, the Family and Medical Leave Act. That should be enough to vote against him, but it won't be, not with this rubberstamp. He has repudiated decades of legal precedents that permitted individuals to sue States to prevent violations of Federal civil rights regulations. Is that going to cause us to vote him down? Heck no. His aggressive involvement in the Federalist revolution shows he is a goals-oriented activist who has used his official position to advance his cause. While his advocacy is a sign to most people of the extremism, he trumpets his involvement. He is unabashedly proud of his repeated work to limit congressional authority to promote the health, safety, and welfare of all Americans. His passion is not some obscure legal theory but a legal crusade that has driven his actions since he was a student and something that guides his actions as a lawyer. His speeches and his testimony before Congress demonstrate just how rooted his views are, how much he wants to effect a fundamental change in this country. Just remember this: These judicial nominees are being confirmed for life. They do not leave or get reconsidered after the congressional elections next year or after this administration ends. They serve as lifetime appointments to the Federal court. It is one thing for us to ignore all the things we should be doing for the American people, but I urge all Senators, on both sides of the aisle, to end this up-or-down rubberstamp, fulfill the Senate's constitutionally mandated duty to evaluate with clear eyes the fitness of judicial nominees, even President Bush's nominees, when they are for lifetime appointments. Stop telling me privately how you would vote if it was a secret ballot. Have the courage to vote in an open ballot the same way. In the last Congress, following one of the most divisive debates I have seen on the floor of the Senate, I explained why I felt strongly about voting against the nomination of William Pryor to the U.S. Court of Appeals for the Eleventh Circuit--in committee and in two unsuccessful cloture attempts. The President disregarded the advice given to him by the Senators opposing this nomination, and he installed Mr. Pryor as a recess-appointed judge on the Eleventh Circuit where he will serve until the end of this year. Today, because the President continues to insist on pushing his most divisive nominees in a group that he renominated to the Senate, we are here voting yet one more time on this nomination. I expect some will try to point to the few cases he has worked on during his time ``auditioning'' on the circuit court as evidence that he should be confirmed. But nothing Judge Pryor has done in the intervening period has changed my view that based on his entire career and record, if he were to receive life tenure on the Federal bench, he would put ideology above the law. I cannot support him. In the course of their march toward the ``nuclear option''--a development thankfully averted--the President and the Republican leadership escalated the rhetoric surrounding this issue in alarming ways. The majority leader last month participated in a telecast smearing opponents of the most extreme judicial nominees as ``against people of faith.'' Arrayed behind the podium at that gathering were photos of the filibustered nominees, and speaker after speaker accused Democrats of opposing nominees such as Judge Pryor because of his faith. These are baseless and despicable accusations, and it is time the Republican leadership and other Republicans in and out of the Senate disavow them. Senate Democrats do not oppose William Pryor because of his faith. We oppose the nomination of William Pryor to the Eleventh Circuit because of his extreme--some, with good reason, use the word ``radical''--ideas about what the Constitution says about federalism, criminal justice and the death penalty, violence against women, the Americans with Disabilities Act, and the Government's ability to protect the environment on behalf of the American people. Of course, those substantive concerns will not do much to advance Republicans' political ambitions and the agendas of polarizing interest groups. So some Republican partisans are putting the truth to one side. They dismiss the views of Democratic Senators doing their duty under the Constitution to examine the fitness of every nominee to a lifetime position on the Federal bench and choose, instead, to use smears and accusations. The last time Judge Pryor came before this committee and the Senate, slanderous accusations were made by Republican Senators, and scurrilous newspaper advertisements were run by a group headed by the President's father's former White House counsel and a group whose funding includes money raised by Republican Senators and even by the President's family. Other Republican members of the Judiciary Committee and of the Senate stood mute in the face of these McCarthyite charges, or, worse, fed the flames. Now, the same type of rhetoric--identifying opponents as against faith--has again reared its ugly head. This kind of religious smear campaign hurts the whole country. It hurts Christians and non-Christians. It hurts all of us, because the Constitution requires judges to apply the law, not their personal views. Remember that all of us, no matter what our faith--and I am proud of mine--are able to practice our religion as we choose or not to practice a religion. That is a fundamental guarantee of our Constitution. The Constitution's prohibition against a ``religious test'' in Article VI is consistent with that fundamental freedom. I hope that Republican Senators will debate this nomination absent the scurrilous charges that marked it the past and the discourse during the ``nuclear option'' last month. Instead, the Senate's debate should center on the nominee's qualifications for this lifetime post in the Federal judiciary. There is an abundance of substantive and compelling reasons why William Pryor should not be a judge on the Eleventh Circuit. Opposition to Judge Pryor's nomination is shared by a wide spectrum of objective observers. Judge Pryor's record is so out of the mainstream that a vast number of editorial boards and others have weighed in with significant opposition. Even The Washington Post, which has been exceedingly generous to the Administration's efforts to pack the courts, has termed Judge Pryor ``unfit'' and consistently opposed his nomination. In Alabama, both the Tuscaloosa News and the Hunstville Times wrote against the nomination. Other editorial boards across the country have spoken out, including the Atlanta Journal-Constitution, the Pittsburgh Post-Gazette, The New York Times, the Charleston Gazette, the Arizona Daily Star, and The Los Angeles Times. We have also heard from a large number of organizations and individuals concerned about justice before the federal courts. The Log Cabin Republicans, the Leadership Conference on Civil Rights, the AFL- CIO, the National Partnership for Women and Families and many others have provided the Committee with their concerns and the basis for their opposition. We have received letters of opposition from organizations that rarely take positions on nominations but feel so strongly about this one that they are compelled to publicly oppose it, including the National Senior Citizens' Law Center, the Anti-Defamation League and the Sierra Club. The ABA's evaluation also indicates concern about this nomination. Their Standing Committee on the Federal Judiciary gave Mr. Pryor a partial rating of ``not qualified'' to sit on the Federal bench. Of course this is not the first ``not qualified'' rating or partial ``not qualified'' rating that this administration's judicial nominees have received. More than two dozen of President Bush's nominees have received indications of concerns about their qualifications from the ABA's peer reviews, which have been less exacting and much more accommodating to this administration than to previous ones. I would note that this softer treatment follows the changes in the process imposed by the Bush administration. Judge Pryor has long been a leader of the federalist movement, promoting State power over the Federal Government. A leading proponent of what he refers to as the ``federalism revolution,'' Judge Pryor seeks to revitalize state power at the expense of Federal protections, seeking opportunities to attack Federal laws and programs designed to guarantee civil rights protections. He has urged that Federal laws on behalf of the disabled, the aged, women, minorities, and the environment all be limited. Not long ago, in a New York Times Magazine article about the so-called ``Constitution-in-Exile'' movement, Michael Greve, was quoted as saying, ``Bill Pryor is the key to this puzzle; there's nobody like him. I think he's sensational. He gets almost all of it.'' That is precisely why he should not be confirmed. William Pryor has argued that the Federal courts should cut back on the protections of important and well-supported Federal laws including the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Civil Rights Act of 1964, the Clean Water Act, the Violence Against Women Act, and the Family and Medical Leave Act. He has repudiated decades of legal precedents that permitted individuals to sue states to prevent violations of Federal civil rights regulations. His aggressive involvement in this ``federalist revolution'' shows that he is a goal-oriented, activist conservative who has used his official position to advance his ``cause.'' Alabama was the only state to file an amicus brief arguing that Congress lacked authority to enforce the Clean Water Act. He argued that the Constitution's commerce clause does not grant the Federal Government authority to prevent destruction of waters and wetlands that serve as a critical habitat for migratory birds. The Supreme Court did not adopt his narrow view of the commerce clause powers of Congress. While his advocacy in this case is a sign to most people of the extremism, he trumpets his involvement in this case. He is unabashedly proud of his repeated work to limit congressional authority to promote the health, safety and welfare of all Americans. His passion is not some obscure legal theory but a legal crusade that has driven his actions since he was a student and something that guides his actions as a lawyer. His speeches and testimony before Congress demonstrate just how rooted his views are, how much he seeks to effect a fundamental change in the country, and how far outside the mainstream he is. Judge Pryor is candid about the fact that his view of federalism is different from the current operation of the Federal Government--and that he is on a mission to change the government to fit his vision. His goal is to continue to limit Congress's authority to enact laws under the Fourteenth Amendment and the commerce clause--laws that protect women, ethnic and racial minorities, senior citizens, the disabled, and the environment--in the name of sovereign immunity. Is there any question that he will pursue his agenda as a judge on the Eleventh Circuit Court of Appeals reversing equal rights progress and affecting the lives of millions of Americans for decades to come? Judge Pryor's comments have revealed insensitivity to the barriers that disadvantaged persons and members of minority groups and women continue to face in the criminal justice system. This is what is at stake for Americans, the consumers of our justice system. This is the type of judge this President and this Republican leadership are intent on permanently installing in our justice system. In testimony before Congress, William Pryor has urged repeal of Section 5 of the Voting Rights Act--the centerpiece of that landmark statute--because, he says, it ``is an affront to federalism and an expensive burden that has far outlived its usefulness.'' That testimony demonstrates that Judge Pryor is more concerned with preventing an ``affront'' to the States' dignity than with guaranteeing all citizens the right to cast an equal vote. It also reflects a long-discredited view of the Voting Rights Act. Since the enactment of the statute in 1965, every Supreme Court case to address the question has rejected the claim that Section 5 is an ``affront'' to our system of federalism. Whether under Earl Warren, Warren Burger, or William Rehnquist, the United States Supreme Court has recognized that guaranteeing all citizens the right to cast an equal vote is essential to our democracy not a ``burden'' that has ``outlived its usefulness.'' His strong views against providing counsel and fair procedures for death row inmates have led William Pryor to doomsday predictions about the modest reforms in the Innocence Protection Act that would create a system to ensure competent counsel in death penalty cases. When the United States Supreme Court questioned the constitutionality of Alabama's method of execution in 2000, William Pryor lashed out at the Supreme Court, saying: ``[T]his issue should not be decided by nine octogenarian lawyers who happen to sit on the U.S. Supreme Court.'' Aside from the obvious disrespect this comment shows for the Nation's highest court, it shows again how results-oriented Judge Pryor is in his approach to the law and to the Constitution. Of course an issue about cruel and unusual punishment ought to be decided by the Supreme Court. It is addressed in the Eighth Amendment, and whether or not we agree on the ruling, it is an elementary principle of constitutional law that it be decided by the Supreme Court, no matter how old its members. Judge Pryor has also vigorously opposed an exemption for persons with mental retardation from receiving the death penalty, exhibiting more certainty than understanding or sober reflection. He authored an amicus curiae brief to the Supreme Court arguing that the Court should not declare that executing mentally retarded persons violated the Eighth Amendment. After losing on that issue, Judge Pryor made an unsuccessful argument to the Eleventh Circuit that an Alabama death-row defendant is not mentally retarded. Judge Pryor has spoken harshly about the moratorium imposed by former Illinois Governor George Ryan, calling it a ``spectacle.'' Can someone so dismissive of evidence that challenges his views be expected to hear these cases fairly? Over the last few years, many prominent Americans have begun raising concerns about the death penalty including current and former supporters of capital punishment. For example, Justice O'Connor recently said there were ``serious questions'' about whether the death penalty is fairly administered in the United States, and added: ``[T]he system may well be allowing some innocent defendants to be executed.'' In response to this uncertainty, Judge Pryor offers us nothing but his obstinate view that there is no problem with the application of the death penalty. This is a position that is not likely to afford a fair hearing to a defendant on death row. Judge Pryor's troubling views on the criminal justice system are not limited to capital punishment. He has advocated that counsel need not be provided to indigent defendants charged with an offense that carries a sentence of imprisonment if the offense is classified as a misdemeanor. The Supreme Court nonetheless ruled that it was a violation of the Sixth Amendment to impose a sentence that included a possibility of imprisonment if indigent persons were not afforded counsel. Judge Pryor is overwhelmingly hostile to a woman's right to choose. There is every indication from his record and statements that he is committed to reversing Roe v. Wade. Judge Pryor describes the Supreme Court's decision in Roe v. Wade as the creation ``out of thin air [of] a constitutional right,'' and opposes abortion even in cases of rape or incest. Judge Pryor does not believe Roe is sound law, neither does he give credence to Planned Parenthood v. Casey. He has said that ``Roe is not constitutional law,'' and that in Casey, ``the court preserved the worst abomination of constitutional law in our history.'' When Judge Pryor appeared before the Committee, he repeated the mantra suggested by White House coaches that he would ``follow the law.'' But his willingness to circumvent established Supreme Court precedent that protects fundamental privacy rights seems much more likely. Judge Pryor has expressed his opposition to fair treatment of all people regardless of their sexual orientation. The positions he took in a brief he filed in the Supreme Court case of Lawrence v. Texas were entirely repudiated by the Supreme Court majority two years ago when it declared that: ``The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private conduct a crime.'' Judge Pryor's view is the opposite. He would deny certain Americans the equal protection of the laws, and would subject the most private of their behaviors to public regulation. Capping Judge Pryor's record of extreme activism were sworn statements made by former Alabama Governor Fob James and his son, both Republicans, explaining that Judge Pryor was only chosen by James to be the State's Attorney General after promising that he would defy court orders, up through and including orders of the Supreme Court of the United States. In sworn affidavits, Governor James and his son recount how Pryor persuaded them he was right for the job by showing them research papers he had supervised in law school about ``nonacquiesence'' to court orders. Indeed, under penalty of perjury, the former Republican Governor and his son say that Judge Pryor's position on defying court orders changed only when he decided he wanted to be a Federal judge. If true, this information, consistent with the activism and extremism present elsewhere in Judge Pryor's record, is revealing. To think that this man would come before the Senate after having made a promise like that--to undermine the very basis of our legal system--and ask to be confirmed to a lifetime position on the Federal bench, is beyond belief. Indeed, William Pryor's activism has often transcended judicial philosophy and entered the realm of pure partisan politics to the point where it appeared political concerns openly affected his legal views. As Attorney General of Alabama, Pryor was one of the founders of the Republican Attorneys General Association, or RAGA, an organization which raised money from corporations for Republican candidates for state Attorney General positions. Before RAGA was founded, Attorney General candidates usually shied away from corporate fundraising because of the potential for conflicts of interest with an Attorney General's duty to go after any corporate wrongdoing. But William Pryor not only ignored the tradition of keeping Attorney General's races above politics, he embraced with both hands the mixing of law and politics. He spoke out, vocally and often, against state attorneys general bringing aggressive cases against the tobacco industry, the gun industry, and other corporate interests. And then RAGA, Pryor's organization, raised money for attorney general campaigns from these very industries and others like them that hoped to avoid lawsuits and prosecution. Pryor's philosophy of opposing mainstream government regulation of corporations advanced his politics and his organization's fundraising, and his political interests in turn informed his pro-corporation legal philosophy. Curiously, when asked about RAGA at his hearing, Mr. Pryor could remember very little about the organization or his role in it. His partisan, political worldview colors the way he thinks about the role of the courts as well. He ended one speech with the prayer, ``Please God, no more Souters!''--a slap at a Supreme Court Justice seen by some as insufficiently conservative. And he said he was pleased the Court's vote in Bush v. Gore was a 5-4 split because that vote would give President Bush ``a full appreciation of the judiciary and judicial selection;'' in other words, it would show the president that he needed to appoint partisan conservatives to the bench. These are the sentiments of an activist and a politician. They are not the considered deliberations that all of us, as Republican or Democrat would expect from an impartial judge. On a full slate of issues--the environment, voting rights, women's rights, gay rights, federalism, and more--William Pryor's record of activism and advocacy is clear. That is his right as an American citizen, but it does not make him qualified to be a judge. As a judge, it is his duty impartially to hear and weigh the evidence and to impart just and fair decisions to all who come before the court. In their hands, we entrust to the judges in our independent Federal judiciary the rights that all of us are entitled to enjoy through our birthright as Americans. Judge Pryor's time on the Eleventh Circuit brings out the very problem with recess appointments of controversial judges. The Constitution sets out that Article III judges receive lifetime appointments precisely so that they can be independent. Judge Pryor, in contrast, cannot be independent during the pendency of his recess appointment because he is dependent on the Senate for confirmation to a lifetime position. He is, in essence, trying out for the job. Accordingly, the opinions he writes while temporarily on the court are not much of a predictor for what he would do if he did receive a lifetime appointment and became truly independent. What is a good predictor for what he would do as a permanent Eleventh Circuit judge? Quite simply, his actions and statements in the many years of his professional life before he was appointed provide the best insight. And these actions and statements paint a clear and consistent picture of a judicial activist whose extreme views place him far outside the mainstream. A year of self-serving restraint does little to alter this picture. The President has said he is against what he calls ``judicial activism.'' How ironic, then, that he has chosen several of the most committed and opinionated judicial activists ever to be nominated to our courts. The question posed by this controversial nomination is not whether Judge Pryor is a skilled and capable politician and advocate. He certainly is. The question is whether--not for a two-year term but for a lifetime--he would be a fair and impartial judge. Could every person whose rights or whose life, liberty or livelihood were at issue before his court, have faith in being fairly heard? Could every person rightly have faith in receiving a just verdict, a verdict not swayed by or yoked to the legal philosophy of a self-described legal crusader? To see Judge Pryor's record and his extreme views about the law is to see the stark answer to that question. I oppose giving Judge Pryor a lifetime appointment to the Eleventh Circuit where he can impose his radical activist vision on the many people whose lives and disputes come before him. I believe the President owes them a nominee who can unite the American people. Mr. President, I believe my time has expired.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that it be in order at this time to ask for the yeas and nays on both nominations.

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

Mr. LEAHY. Mr. President, as we debate the nominations of Richard Griffin and David McKeague to the Sixth Circuit Court of Appeals, and move on to their almost certain confirmation, I believe we must acknowledge the cooperation and statesmanship of the two Senators from Michigan who have compromised a great deal in order to contribute to the preservation of the rules and traditions of the Senate. Senator Levin and Senator Stabenow have spent much of the last 4 years trying to persuade the President to fulfill his constitutional duty and consult with them on his Michigan appointments, to no avail. Because of that lack of cooperation, combined with the shameful treatment given to President Clinton's nominees, the Michigan Senators exercised their right as home State Senators to withhold their consent to the nominations of candidates chosen without consultation to the Sixth Circuit. The Michigan Senators had the support of other Senators. Nonetheless, the Michigan Senators, with grace and dedication to this institution, withdrew their opposition to three of those nominees as part of the discussions related to averting the nuclear option. Because of their willingness to go forward, we are here today debating and voting upon the confirmation of two nominees to the Sixth Circuit despite a lack of consultation by President Bush and a complete disregard for the history of this court. First, it is essential to explain what a significant break with precedent it was that these two nominees were even given a hearing in the last Congress without the support of either of their home State Senators. The scheduling of that hearing was another example of the downward spiral the committee traveled over the last 2 years, when we witnessed rule after rule broken or misinterpreted away. The list is long. From the way that home State Senators were treated to the way hearings were scheduled, to the way the committee questionnaire was altered, to the way our committee's historic protection of the minority by committee rule IV was violated; the Republican leadership on the committee last Congress destroyed virtually every custom and courtesy that had been available to help create and enforce cooperation and civility in the confirmation process. The then-chairman of the committee crossed a critical line that he had never before crossed when in June of 2003, he held a hearing for Henry Saad, another of the Michigan nominees to the Sixth Circuit, opposed by both of his home State Senators. It may have been the first time any chairman and any Senate Judiciary Committee proceeded with a hearing on a judicial nominee over the objection of both home State Senators. It was certainly the only time in the last 50 years, and I know it to be the only time during my 31 years in the Senate. Having broken a longstanding practice of the Judiciary Committee founded on respect for home State Senators, whether in the case of a district or circuit court nominee, the committee's leadership did not hesitate to break it again and hold a hearing for Richard Griffin and David McKeague. The Michigan Senators did not do what so many other Senators did when holding up more than 60 of President Clinton's nominees, and block them silently. To the contrary, they came to the committee and articulated their very real grievances with the White House and their honest desire to work towards a bipartisan solution to the problems filling vacancies in the Sixth Circuit. We should have respected their views, as the views of home State Senators have been respected for decades. I urged the White House to work with them. I proposed reasonable solutions to the impasse that the White House rejected. The Michigan Senators proposed reasonable solutions, including a bipartisan commission, but the White House rejected every one. Although President Bush promised on the campaign trail to be a uniter and not a divider, his practice once in office with respect to judicial nominees has been most divisive. Citing the remarks of a White House official, The Lansing State Journal reported that President Bush was simply not interested in compromise on the existing vacancies in the State of Michigan. It is unfortunate that the White House was never willing to work toward consensus with all Senators and on all courts. Over the last 4 years, time and again the good faith efforts of Senate Democrats to repair the damage done to the judicial confirmation process over the previous six years were rejected. And time and again, the rules were thrown by the wayside. When Republicans chaired the Judiciary Committee and we were considering the nominations of a Democratic President, one negative blue slip from just one home State Senator was enough to doom a nomination and prevent a hearing on that nomination. This included all nominations, including those to the circuit courts. How else to explain the failure to schedule hearings for such qualified and noncontroversial nominees as James Beaty and James Wynn, African- American nominees from North Carolina? What other reason could plausibly be found for what happened to the nominations of Enrique Moreno and Jorge Rangel--both Latino, both Harvard graduates, both highly rated by the ABA, and both denied hearings in the Judiciary Committee? There is no denying that was the rule during the previous Democratic administration. There is no way around the conclusion that with a Republican in the White House, the Republicans in the Senate have found it politically expedient to change the rules and reverse their own practices time and again. In all, more than 60 of President Clinton's judicial nominees and more than 200 of his executive branch nominees were defeated in Senate committees through the enforcement of rules and precedents that the Republican majority later found inconvenient--now that there is a Republican in the White House. Indeed, among the more than 60 Clinton judicial nominees who the committee never considered there were more than a few who were blocked despite positive blue slips from both home State Senators. So long as a Republican Senator had an objection, it appeared to be honored, whether that was Senator Helms of North Carolina objecting to an African-American nominee from Virginia or Senator Gorton of Washington objecting to nominees from California. During the last Congress, the Judiciary Committee also took the unprecedented action of proceeding to a hearing on the nomination of Carolyn Kuhl to the Ninth Circuit over the objection of Senator Boxer. When the senior Senator from California announced her opposition to the nomination as well at the beginning of a Judiciary Committee business meeting, I suggested to the chairman that further proceedings on that nomination ought to be carefully considered. I noted that he had never proceeded on a nomination opposed by both home State Senators once their opposition was known. Senator Feinstein likewise reminded the then-chairman of his statements in connection with the nomination of Ronnie White when he acknowledged that had he known both home Sstate Senators were opposed, he would never have proceeded. Nonetheless, in one in a continuing series of changes of practice and position, the committee was required to proceed with the Kuhl nomination. A party- line vote was the result. With the Saad nomination, the committee made a further profound change in its practices. When a Democratic President was doing the nominating and Republican Senators were objecting, a single objection from a single home State Senator stalled the nomination. There was not a single example of a single time that the committee went forward with a hearing over the objection or negative blue slip of a single Republican home State Senator during the Clinton administration. But once a Republican President was doing the nominating, no amount of objecting by Democratic Senators was sufficient. The committee overrode the objection of one home State Senator with the Kuhl nomination. The committee overrode the objection of both home State Senators when a hearing and a vote was held on the Saad nomination, and once more by holding a hearing and vote for the two circuit court nominees we are discussing today. I know it is frustrating that there have been unfilled vacancies on the Sixth Circuit for so long. Many of us experienced worse frustration during the Clinton years when good nominees were held up for no discernable reason--other than politics. During President Clinton's second term, the Republican Senate majority shut down the process of confirmations to the Sixth Circuit entirely, and three outstanding nominees were not accorded hearings, committee consideration or Senate votes. In fact, while there were numbers of vacancies on the Sixth Circuit and nominees for those vacancies, from November of 1997 there was not a confirmation to that court until the confirmation of Julia Smith Gibbons while I was chairman on July 29, 2002, a span of nearly 5 years. Not a single Sixth Circuit nominee was even given a hearing during Republican control of the 106th Congress, and one of the nominees, Kent Marcus from Ohio, testified at a Judiciary subcommittee hearing in 2002 that he was told that he would not be confirmed despite public support from his home State Senators. Republicans wanted to keep the vacancies in case a Republican was elected President. When I chaired the committee, we broke that impasse with the first Sixth Circuit confirmation in those many years. I scheduled a hearing and a vote for Julia Smith Gibbons of Tennessee, who was confirmed shortly thereafter, and I did the same for John Rogers of Kentucky, who was confirmed in November of 2002. I know that around the time a Republican leadership staffer was found to have stolen confidential Democratic files there were outrageous accusations made that Judge Gibbons' confirmation was delayed to affect a pending affirmative action case in some way. I have never considered the outcome of any particular case when scheduling that or any other nominee for a hearing. The facts of this nomination belie this scurrilous accusation. Judge Gibbons was nominated to the Sixth Circuit in October 2001 but did not have a completed file until November 15, shortly before the end of the first session of the 107th Congress. Before her paperwork was complete, the Sixth Circuit panel assigned to the affirmative action cases had already circulated a request for the full court to hear argument, and on November 16, the Sixth Circuit ordered that the case to be argued to the full court. The oral argument in that case took place after Thanksgiving, on December 6. Given the lateness of her nomination, her paperwork, and the year, Gibbons could not realistically have expected a hearing, a committee vote and a confirmation vote to all have taken place in the 3 weeks between the time her paperwork was complete and the time the Sixth Circuit sat for the oral argument in that case and took a poll about the outcome of that case. The ordinary practice is that only the judges who are on the court at the time the court votes to hear the case ``en banc'' can participate in the case, even if they retire. It is just unreasonable to contend that Judge Gibbons could have heard the December 6 argument in that case. When we returned for the second session of the 107th Congress, I scheduled several hearings at the request of a number of different Republican Senators. The first circuit court nominee to get a hearing was Michael Melloy for the Eighth Circuit at Senator Grassley's request; followed by Judge Pickering, who was supported by Senator Lott; then Judge D. Brooks Smith, for the Third Circuit, at Senator Specter's request; then Terrence O'Brien, for the Eighth Circuit, at the request of Senators Thomas and Enzi; and Jeffrey Howard, for the First Circuit, who was supported by Senator Bob Smith. Once those hearings were completed, in the week of April 15, I scheduled a hearing for Judge Gibbons. Her hearing was held on April 25. I listed her for a committee vote the very next week, and all of the Democratic Senators joined in voting her out the same day, May 2. She did not get an immediate floor vote due to a dispute between the White House and Senators over commissions, but she was ultimately confirmed on July 29, 2002. The Sixth Circuit issued its decision in the Michigan affirmative action case on May 14, 2002, which means the judges were already working on the majority and dissenting opinions for weeks, likely even months, given the complexity of the case. The Supreme Court, where I think we all knew the issue would finally be decided, accepted the appeal of the affirmative action decision later that year and issued its ruling on June 23, 2003. To say that Democrats used their power to influence the Sixth Circuit in any case is demonstrably false. What is factually true is that from the time the case against the University of Michigan case was filed in District Court until the time I facilitated the confirmation of Judge Gibbons, Republicans had successfully blocked any and all appointees to that Circuit. Even after the 107th Congress, Democrats continued to cooperate in filling seats on the Sixth Circuit. Although many of us strongly opposed their nominations, we did not block the confirmations of two more controversial judges to that court: Deborah Cook and Jeffrey Sutton. With their confirmations, that brought us to a total of four Sixth Circuit confirmations in 3 years as opposed to no confirmation in the last 3 years of the Clinton administration. We cut Sixth Circuit vacancies in half. With cooperation from the White House, we could have done even better. The Republican Senate majority refused for over 4 years to consider President Clinton's well-qualified nominee, Helene White, to the Sixth Circuit. Judge White has served on the Michigan Court of Appeals with Judge Griffin since 1993, and, prior to her successful election to that seat, served for nearly 10 years as a trial judge, handling a wide range of civil and criminal cases. She was first nominated by President Clinton in January 1997, but the Republican-led Senate refused to act on her nomination. She waited in vain for 1,454 days for a hearing, before President Bush withdrew her nomination in March 2001. It stands in contrast to the recent mantra from Republicans that every judicial nominee is entitled to an up-or-down vote. President Clinton had also nominated Kathleen McCree Lewis. She is the daughter of a former Solicitor General of the United States and a former Sixth Circuit Judge. She was also passed over for hearings for years. No effort was made to accord her consideration in the last 18 months of President Clinton's term. The Republican double standard denied her the treatment they now demand for every Bush nominee. Despite the flawed process that brought us here, the Michigan Senators understood that in recent weeks we found ourselves on the brink of a terrible moment in the United States Senate when the majority leader would break the rules to change the rules in order to achieve the President's goal of packing the courts. They understood the extreme tactics of the Republican majority. I applaud their sacrifice, and hope that the President was listening to the 14 other Senators who expressly asked him in their memorandum of understanding on nominations to engage in real consultation with home State Senators. That is sound advice. In deference to the Michigan Senators, I will no longer oppose these confirmations. Still, there are issues related to their records and views that trouble me. I hope that they will be able to put any ideologies or preconceptions aside and rule fairly in all cases. As a judge on the Michigan Court of Appeals since 1989, Judge Griffin has handled and written hundreds of opinions involving a range of civil and criminal law issues. Yet, a review of Judge Griffin's cases on the Michigan Court of Appeals raises concerns. He has not been shy about interjecting his own personal views into some of his opinions, indicating that he may use the opportunity, once confirmed, to further his own agenda when confronted with cases of first impression. For example, in one troubling case involving the Americans with Disabilities Act--ADA--Doe v. Mich. Dep't of Corrections, Judge Griffin followed precedent and allowed the State disability claim of disabled prisoners to proceed, but wrote that, if precedent had allowed, he would have dismissed those claims. Griffin authored the opinion in this class action brought by current and former prisoners who alleged that the Michigan Department of Corrections denied them certain benefits on the basis of their HIV-positive status. Although Judge Griffin held that the plaintiffs had stated a claim for relief, his opinion makes clear that he only ruled this way because he was bound to follow the precedent established in a recent case decided by his Court. Moreover, he went on to urge Congress to invalidate a unanimous Supreme Court decision, written by Justice Scalia, holding that the ADA applies to State prisoners and prisons. He wrote, ``While we follow Yeskey, we urge Congress to amend the ADA to exclude prisoners from the class of persons entitled to protection under the act.'' In other cases, he has also articulated personal preferences that favor a narrow reading of the law, which would limit individual rights and protections. For example, in Wohlert Special Products v. Mich. Employment Security Comm'n, he reversed the decision of the Michigan Employment Security Commission and held that striking employees were not entitled to unemployment benefits. The Michigan Supreme Court vacated part of Judge Griffin's decision, noting that he had inappropriately made his own findings of fact when ruling that the employees were not entitled to benefits. This case raises concerns about Judge Griffin's willingness to distort precedent to reach the results he favors. In several other cases, Judge Griffin has gone out of his way to interject his conservative personal views into his opinions. The appeals courts are the courts of last resort in over 99 percent of all federal cases and often decide cases of first impression. If confirmed, Judge Griffin will have much greater latitude to be a conservative judicial activist. It is ironic that Judge Griffin's father who, as Senator in 1968, launched the first filibuster of a Supreme Court nominee and blocked the nomination of Justice Abe Fortas to serve as Chief Justice. Despite the deference given in those days to the President's selected nominee, former Senator Griffin led a core group of Republican Senators in derailing President Johnson's nomination by filibustering for days. Eventually, Justice Fortas withdrew his nomination. I know that the Republicans here have called filibusters of Federal judges ``unconstitutional'' and ``unprecedented'', but this nominee's father actually set the modern precedent for blocking nominees by filibuster on the Senate floor. The second of the two nominees before us today is David McKeague. His record raises some concerns, and his answers to my written questions on some of these issues did little or nothing to assuage them. In particular, I am concerned about Judge McKeague's decisions in a series of cases on environmental issues. In Northwoods Wilderness Recovery v. United States Forest Serv., 323 F.3d 405 (6th Cir. 2003), Judge McKeague would have allowed the U.S. Forest Service to commence a harvesting project that allowed selective logging and clear-cutting in areas of Michigan's upper peninsula. The appellate court reversed him and found that the Forest Service had not adhered to a ``statutorily mandated environmental analysis'' prior to approval of the project, which was dubbed ``Rolling Thunder.'' Sitting by designation on the Sixth Circuit, Judge McKeague joined in an opinion that permitted the Tennessee Valley Authority--TVA--broadly to interpret a clause of the National Environmental Policy Act in a way that would allow the TVA to conduct large-scale timber harvesting operations without performing site-specific environmental assessments. This is the case of Help Alert Western Ky., Inc. v. Tenn. Valley Authority, 1999 U.S. App. LEXIS 23759 (6th Cir. 1999). The majority decision in this case permitted the TVA to determine that logging operations that covered 2,147 acres of land were ``minor,'' and thus fell under a categorical exclusion to the environmental impact statement requirement. The dissent in this case noted that the exclusion in the past had applied only to truly ``minor'' activities, such as the purchase or lease of transmission lines, construction of visitor reception centers and onsite research. Judge McKeague also dismissed a suit brought by the Michigan Natural Resources Commission against the Manufacturer's National Bank of Detroit, finding that the bank was not liable for the costs of environmental cleanup at sites owned by a ``troubled borrower.'' This is the case of Kelley ex rel. Mich. Natural Resources Comm'n v. Tiscornia, 810 F. Supp. 901 (W.D. Mich. 1993). The bank took over the property from Auto Specialties Manufacturing Company when it defaulted on its loans. The Natural Resources Commission argued that the bank should be responsible for taking over the cost of cleanup because it held the property when the toxic spill occurred, but Judge McKeague disagreed. In Miron v. Menominee County, 795 F. Supp. 840 (W.D. Mich. 1992), Judge McKeague rejected the efforts of a citizen who lived close to a landfill to require the Federal Aviation Administration to enjoin landfill cleanup efforts until an environmental impact statement regarding the efforts could be prepared. The citizen contended that if the statement were prepared, the inadequacies of a State-sponsored cleanup would be revealed and appropriate corrective measures would be undertaken to minimize further environmental contamination and wetlands destruction. Holding that the alleged environmental injuries were ``remote and speculative,'' Judge McKeague denied the requested injunctive relief. In Pape v. U.S. Army Corps of Engineers, 1998 U.S. Dist. LEXIS 9253 (W.D. Mich.), Judge McKeague seems to have ignored relevant facts in order to prevent citizen enforcement of environmental protections. Dale Pape, a private citizen and wildlife photographer, sued the U.S. Corps of Army Engineers under the Federal Resource Conservation and Recovery Act of 1976 (RCRA), alleging that the Corps mishandled hazardous waste in violation of RCRA, destroying wildlife in a park near the site. Despite the Supreme Court's holding in Lujan v. Defenders of Wildlife that ``the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing,'' and even though RCRA specifically conferred the right for citizen suits against the government for failure to implement orders or to protect the environment or health and safety, Judge McKeague dismissed the case, holding that plaintiff lacked standing to sue. Judge McKeague found plaintiff's complaint insufficient on several grounds, in particular plaintiff's inability to establish which site specifically he would visit in the future. Plaintiff had stated in his complaint that he ``has visited the `area around' the RACO site `at least five times per year' and that he has made plans to vacation in `Soldiers Park' located `near' the RACO site in early October 1998, where he plans to spend his time `fishing, canoeing, and photographing the area.' '' Comparing Pape's testimony with that of the Lujan plaintiff, who had failed to win standing after he presented general facts about prior visits and an intent to visit in the future, Judge McKeague rejected Pape's complaint as too speculative, based on the Court's holding in Lujan that: [Plaintiffs'] profession of an ``intent'' to return to the places [plaintiffs] had visited before--where they will, presumably, this time, be deprived of the opportunity to observe animals of the endangered species--is simply not enough to establish standing . . .. Such ``some day'' intention-- without any description of concrete plans, or indeed, even any specification of when the some day will be-- do not support a finding of the ``actual or imminent'' injury that our cases require. In concluding that ``the allegations contained in plaintiff's first amended complaint fail to establish an actual injury because they do not include an allegation that plaintiff has specific plans to use the allegedly affected area in the future,'' Judge McKeague seemed to ignore completely the detailed fact description that Pape submitted in his amendment complaint. The judge further asserted that there was no causal connection between the injury and the activity complained of, and that, in any case, the alleged injury was not redressable by the suit. On another important topic, that of the scheme of enforcing the civil and constitutional rights of institutionalized persons, I am concerned about one of Judge McKeague's decisions. In 1994, in United States v. Michigan, 868 F. Supp. 890 (W.D. Mi. 1994), he refused to allow the Department of Justice access to Michigan prisons in the course of its investigation into some now notorious claims of sexual abuse of women prisoners by guards undermines the long-established system under the Constitutional Rights of Institutionalized Persons Act or CRIPA. That act's investigative and enforcement regime is unworkable if the Department of Justice is denied access to State prisons to determine if enough evidence exists to file suit, and Judge McKeague's tortured reasoning made it impossible for the investigation to continue in his district. I know that concern for the rights of prisoners who have often committed horrendous criminal acts is not politically popular, but Congress enacted the law and expected its statute and its clear intent to be followed. It seems to me that Judge McKeague disregarded legislative history and the clear intent of the law, and that sort of judging is of concern to me. Finally, I must express my profound disappointment in his answer to a question I sent him about a presentation he made in the Fall of 2000, when he made what I judged to be inappropriate and insensitive comments about the health and well-being of sitting Supreme Court Justices. In a speech to a law school audience about the impact of the 2000 elections on the courts, Judge McKeague discussed the possibility of vacancies on the Court over the following year. In doing so he felt it necessary to not only refer to--but to make a chart of--the Justices' particular health problems, and ghoulishly focus on their life expectancy by highlighting their ages. He says he does not believe he was disrespectful, and used only public information. There were other, better ways he could have made the same point, and it is too bad he still cannot see that. Under our Constitution, the Senate has an important role in the selection of our judiciary. The brilliant design of our Founders established that the first two branches of Government would work together to equip the third branch to serve as an independent arbiter of justice. As columnist George Will once wrote: ``A proper constitution distributes power among legislative, executive and judicial institutions so that the will of the majority can be measured, expressed in policy and, for the protection of minorities, somewhat limited.'' The structure of our Constitution and our own Senate rules of self-governance are designed to protect minority rights and to encourage consensus. Despite the razor-thin margin of recent elections, the majority party has never acted in a measured way but in complete disregard for the traditions of bipartisanship that are the hallmark of the Senate. It acted to ignore precedents and reinterpret longstanding rules to its advantage, but fortunately its attempt to eliminate the voice of the minority entirely failed because of the efforts of well- meaning and fair-minded Senators. Two more well-meaning and fair-minded Senators did their part to save the Senate by clearing the way for the confirmation of the two nominees today. I hope that despite the concerns I have expressed and others that may emerge during this debate, once confirmed Judge Griffin and Judge McKeague will fulfill their oath and provide fair and impartial justice to all who come before them.

Mr. LEAHY. Mr. President, I know the two Senators from Michigan support both these nominees. They both returned positive blue slips, which is one of the reasons they are moving so quickly. As to when the time arrives that the leader wishes to begin the votes, I ask unanimous consent that at that time the time on this side of the aisle be yielded back, whether I am on the floor or not.