Patrick Leahy

Mr. LEAHY

Mr. LEAHY. I am posing a question.

Mr. LEAHY. Mr. President, if the Senator will yield further for a question, the Senator has stated he realizes Mr. Griffith practiced law illegally, first in one jurisdiction for 3 or 4 years, then in a second jurisdiction for 3 or 4 years, but that he is the President's choice for going on the DC Circuit. I am sure the Senator is aware that during the last administration, several nominees for that same seat were blocked by pocket filibusters by the Republicans--one was Elana Kagan, who is now the dean of the Harvard Law School. Another was Allen Snyder, a former Supreme Court law clerk to Chief Justice Rehnquist. I voted against Mr. Griffith because I felt on the second highest court of the land it is not a good example to have a person, whatever his other qualifications might be, who was so cavalier as to practice law illegally in two different jurisdictions. I ask the Senator, is the Senator aware I did work with the distinguished Chairman of the committee, Senator Specter, to allow the hearing to go forward with Mr. Griffith and to allow a vote to go forward without delay in the committee? While I voted against Mr. Griffith because of the practice of law, primarily, and while, I felt concern that Chief Justice Rehnquist's former law clerk and Dean Kagan were blocked by the Republican pocket filibuster, I ask the leader if he understands that I will certainly have no objection nor do I know of any Democrat who would object to moving forward and having a real debate and the up-or-down vote that was denied to a Democratic President's nominees? Does the Senator understand that not withstanding the fact that I would vote against that nominee, I would support him bringing this nomination forward? I suspect he would get a majority of the votes in the Senate.

Mr. LEAHY. Allen Snyder.

Mr. LEAHY. I would ask if the Senator would yield for the purpose of a question. When we talk about votes, 40 is the threshold on filibusters. Of course, the Senate sets the rules. The Senate could say: You require 95 votes. Or it could say: You require 2 votes. There is nothing magic about 50, 40, 60, or anything else. But be that as it may, I would ask, through the Chair, whether the Senator from Nevada is aware of numerous instances in which Democrats have proceeded to debate and vote on the President's nominees against which there were more than 40 negative votes--I can think of three significant judicial nominations where there were 41 Democratic votes against allowing them to go forward: Timothy Tymkovich was confirmed to the Eighth Circuit although 41 Senators voted against him; Jeffrey Sutton was confirmed to the Sixth Circuit although 41 Senators voted against him; J. Leon Holmes was confirmed to the district court in Arkansas although 46 Senators from both parties voted against him. In addition, Senate Democrats proceeded to debate and vote on the controversial nomination of former Attorney General Ashcroft, who was confirmed although 42 Senators voted against his confirmation; Ted Olson, who was confirmed to be Solicitor General although 47 Senators voted against his confirmation; Victor Wolski, who was confirmed to the Court of Claims although 43 Senators voted against his confirmation. Most recently, a number of us voted for cloture on the nomination of Stephen Johnson to head the EPA. He was confirmed with only 61 votes in support. I was one of those who voted for cloture so we could go forward with the President's nomination. Was the Senator from Nevada aware of all those?

Mr. LEAHY

Mr. LEAHY. Reserving the right to object--I will not object--I ask unanimous consent to follow the Senator from Texas as in morning business.

Mr. LEAHY. And that I then be recognized for the same amount of time.

Mr. LEAHY. I have no objection.

Mr. LEAHY. Mr. President, could the Senate always be so agreeable in moving things along, we in the country would be better off. I listened to this discussion of nuclear option and judges and all that. It may seem arcane. There is nothing in the Constitution that says 50 votes or 40 votes or 60 votes or 80 votes. It is up to the rules of the Senate. It is when the rules are either reviewed or ignored that you have a problem. As I mentioned earlier today, when President Clinton was in office, the Republicans used the rules to say if one Republican, one objected, then you would not have a vote on the nominee. 61 of President Clinton's nominees for judgeships were not allowed to move because one Republican objected. Actually a couple hundred of his executive nominations, by the same token, because one Republican objected. So there they are requiring 100 votes to confirm somebody. So you wonder when you are talking about a tiny handful of judges-- and no President in history, from George Washington on, has ever gotten all judges through the Senate--why there is so much attention on this. I was thinking about it and I thought, you know, this all began about 4 years ago when we started talking about this. Four years ago things were a lot different in this country. Let's look at the differences. In the last 4 years--and maybe this is why they would rather talk about judges instead of talking about what's going on--in the last 4 years under President Bush, unemployment has gone up 26 percent. During this same time, this last 4 years, the price of gas has gone up 57 percent. You can hold hands with all the Saudi princes you want, but it has still gone up. The number of uninsured in this country has gone up 10 percent. The budget deficit has gone up $50 billion. Actually, President Bush inherited the largest budget surplus of any President in the history of the United States. President Clinton had followed the Reagan and Bush administrations, which tripled the national debt and created huge deficits. President Clinton's administration not only balanced the budget, but created a surplus, and started paying down the debt. President Bush inherited the largest surplus of any President in our whole history and he has turned it into the largest deficit. Then there is the trade deficit. That has gone up 69 percent. I mention these things that have gone up under the Bush Presidency. Obviously they don't want to talk about it. It means the Saudis and the Chinese, Japanese, Koreans, and others who are holding our debt thus influence our foreign policy. We will not just be holding hands with Saudi princes, we will probably be holding hands with everybody from all these other countries, too, so they do not call our IOUs. During those 4 years, unemployment has gone up by 26 percent, the price of gas has gone up by 57 percent, the number of uninsured Americans has gone up by 10 percent, the budget deficit has increased by $350 billion, and the trade deficit has gone up by 69 percent. But there is one indicator that has shown improvement: the number of judicial vacancies has dropped 48 percent. So why are they complaining they are not getting enough judges? During those 4 years of President Bush's Presidency, the number of judicial vacancies has gone way down because we confirmed so many judges. In fact, 4 years ago, the vacancy rate in our Federal courts was nearly 10 percent, and now it is around 5 percent. Mr. President, 95 percent of the Federal judiciary is filled. Most people would consider 95 percent a pretty good record. I remember talking with President Bush 4 years ago. I said: You might get 90, 95 percent of your judges through. He thought that was pretty good. He wished he had a record like that when he owned a baseball team. Four years ago today, I went to the White House in a gesture of cooperation to hear the President announce his first judicial nominations. Some criticized me for going, but I said I wanted to help. The President, during his campaign, said he wanted to be a uniter, not a divider, and now was the time to do so, and I said I would help. Unfortunately, that is not what President Bush had in mind. The nominations he announced that spring day 4 years ago were largely controversial, confrontational choices. Typically, when a President-- Republican or Democrat--selects nominations to the circuit courts, he consults at length with home State Senators and the Senate leadership to be sure those selected will be considered favorably by the Senate. This President has not done that. In fact, President Clinton, his predecessor, and his White House Counsel and staff were in regular contact with the Republican leadership. Senator Hatch talked in his book about how much President Clinton consulted with the Republicans. Instead, here my Republican colleagues say: No, we do not want the checks and balances of the Senate; we do not want an independent, nonpartisan judiciary; we are going to put a Republican stamp on the judiciary. Remember, the Federal judiciary should not be Democratic or Republican, it should be independent and free of political pressure. They say: No, we cannot do that. We will break all the rules possible and make sure that we get rid of checks and balances. This effort by the Republicans also, of course, belies what has happened. Back 4 years ago in June, with the change in the Senate, I became chairman of the Senate Judiciary Committee. Even though it was already June and the Republicans had been in charge since the beginning of the year, there had not been a single judicial nomination hearing held on President Bush's nominations. I inherited what seemed to be an impossibly large number of 110 vacancies. There were so many because, of course, there had been pocket filibusters of over 60 of President Clinton's nominations. But we worked hard, and in 17 months we were able to whittle that number down to 60 vacancies. Incidentally, it is interesting that with the Republican majority, look how the vacancies skyrocketed in the judiciary. The Democrats came in and they shot down. Now, of course, they are heading back up under Republican leadership. It takes a lot of work to lower the number of vacancies. I held hearings during recess periods and confirmed President Bush's nominees. Senator Daschle and I received a deadly anthrax attack, so deadly that people who touched the outside of the envelopes of letters addressed to us that we were supposed to open were killed. They were murdered, and we still held the hearings. We held hearings in the aftermath of the 9/ 11 attacks when the airlines were shut down. We had a nominee volunteer to drive from Mississippi to Washington to be included in a hearing I was holding. We had the anthrax attacks, the PATRIOT Act, and all the rest, and we kept on going, and in 17 months we confirmed 100 of President Bush's judges. The Republicans took nearly twice as long when they were in control to confirm the same number of judges for President Bush. They say we are the ones holding things up? They ought to be ashamed of themselves. Maybe they ought to work as hard as we did to get them through. In fact, when Congress adjourned last December, there were only 27 vacancies out of 875 Federal judgeships, the lowest number in over a generation. In President Bush's first term, 204 judges were confirmed-- more than confirmed in either of President Clinton's two terms, more than during the term of the President's father, more than in Ronald Reagan's first term when he had a Republican Senate. We confirmed a couple more nominees before we broke a week ago, and the distinguished Democratic leader has suggested we bring up another one of President Bush's nominees for a vote. We have seen the talking points that have come out from the Republicans. They say we are holding up Thomas Griffith. The record is clear that I have--we have objected to him. After all, he did practice law illegally for 4 years in one jurisdiction and practiced law illegally in another jurisdiction, and the President wants to put him on the second highest court in the land. We said that should be an impediment. In any other administration, it would be an impediment. They want to go forward with him. The record is equally clear that I do not intend to support a filibuster of this nomination. The distinguished Democratic leader said: Fine, bring him up. We will give you a time agreement and vote on it. He will either be confirmed or will not be confirmed. If he is confirmed, it shows what the standards are of this administration. We can look at all the people turned down on the other side, but we never heard this complaint. We are prepared to move forward on Mr. Griffith's nomination despite the fact that the Republicans pocket filibustered 61 of President Clinton's nominees, even though those nominees included the current dean of Harvard Law School, a former attorney general from Iowa, a former clerk to Chief Justice Rehnquist, women, men, Hispanics, African Americans, and many others. We heard talks about Judge Owen this afternoon. One of her opinions was criticized by Alberto Gonzales when he served on the Texas Supreme Court. However, we held a hearing for her, a very fair hearing. The Senator from California, Mrs. Feinstein, conducted it. It was acknowledged by both Republicans and Democrats as being totally fair. She was voted down in the committee, and for the first time in history, a nominee voted down in committee was resubmitted by the President. This is not a time to be breaking the rules of the Senate. The rules are there because we want a check and balance. That is all we are saying. For example, a home State newspaper of one of the nominees referred to a speech she gave recently that sounded as if it came from an Islamic jihadist, a very activist judge, who believes that child labor laws, minimum wage laws, even Social Security represent something wrong in this country. I am not really sure that is the sort of person we want on the bench making decisions about child labor laws, Social Security, and minimum wage. Let's forget this end justifies the means. Let the Senate be what it always has been: A check and balance, whether it is a Democratic President or Republican President, a real check and balance but an honest one. Do away with anonymous holds. I said that before. Do away with the secret one-person filibuster. I know the distinguished Senator from Oregon has spoken consistently that way, I believe from the very first day he entered this great body. Do away with the anonymous holds. Do away with those things, but follow the Senate rules. Do not violate the rules. Do not let us, those who are supposed to judge the judges, break our own laws and our own rules. As I have noted, 4 years ago today, on May 9, 2001, I went to the White House in a gesture of cooperation to hear the President announce his first judicial nominations. Some criticized me for going, but I wanted to indicate my willingness to work with the new President. After all, during the campaign he had told the American people he wanted to be a uniter, not a divider. He had lost the popular vote in a much- disputed 2000 election, and the country was deeply divided. I hoped that he would be a President who would understand the need to work across the aisle and to bring people together and to consult with both Democratic and Republican Senators. I thought that judicial nominations, particularly those to the important circuit courts where Republicans had prevented almost two dozen of President Clinton's qualified and moderate nominees from being considered, would be a good place to start. Unfortunately, that was not what President Bush had in mind. The nominations that President Bush announced that spring day, years ago, were largely controversial, confrontational choices. Although I was then the Ranking Democratic Member of the Senate Judiciary Committee, and was soon to become the Committee's Chair, the White House had not reached out to discuss any of these controversial nominees beforehand. By and large, home-state Senators had not been consulted about the nominees, nor had any sort of bipartisan, independent group of attorneys or legal scholars. That was the President's choice and has, unfortunately, remained his way of identifying and selecting nominees to be lifetime judicial appointments to the federal bench. This White House appears to rely on a tight circle of Federalist Society members, Republican Party activists and law professors steeped in ideology. This President has nominated what may be the most ideological-driven group of nominees ever presented to the Senate at one time. Typically, when a President selects nominations to the circuit courts, he consults at length with home-state Senators and the Senate leadership to ensure that those selected will be considered favorably by the Senate and confirmed. That has not been the true with this Administration. By way of example, I cannot recall a single occasion during which this President picked up the phone to discuss these judicial nominations during the entire four and a half years that he has been President--not at the beginning of his Administration, not during the 17 months that I chaired the Senate Judiciary Committee, and not since. That stands in sharp contrast to traditional practice dating back to George Washington and, in particular, to the manner in which President Clinton had worked with Senator Hatch when he was the Ranking Minority Member of the Senate Judiciary Committee or its Chair. Not only were President Clinton, his White House Counsel and his staff in regular contact with Senator Hatch and his staff; with respect to the most important nominations, the President and he had direct, meaningful consultation. In his book, ``Square Peg,'' for example, Senator Hatch wrote that he ``had several opportunities to talk privately with President Clinton about a variety of issues, especially judicial nominations.'' He described how, when the first Supreme Court vacancy arose during the Clinton presidency in 1993, ``it was not a surprise when the President called to talk about the appointment and what he was thinking of doing.'' Senator Hatch went on to describe that the President was thinking of nominating someone who would require a ``tough, political battle'' but that he advised President Clinton to consider other candidates. According to his book, Senator Hatch suggested then-D.C. Circuit Judge Ruth Bader Ginsburg, as well as then-First Circuit Judge Stephen Breyer. They were nominated to fill the vacancies that arose on the Supreme Court in 1993 and 1994. Both were approved by the Senate with strong, bipartisan support. Justice Ginsburg was confirmed by a vote on 96-3. Justice Breyer was confirmed by a vote of 87-9. That sort of consultation did not occur before this President's initial nominations were made 4 years ago, and I am sorry it did not. Sadly, this lack of consultation was not just the situation for these first nominations, it has continued to this day. Senate Democrats have not stopped trying to offer the advice called for by the Constitution and have never stopped being available to help in the selection process. Just a few weeks ago, on April 11, the Democratic Leader and I wrote to the President offering to help with the more than two dozen current judicial vacancies for which the President has not yet sent a nomination to the Senate. We urged him to disavow the ``nuclear option'' in favor of working with us to identify consensus judicial candidates who could be confirmed easily and who would be fair, impartial judges that would preserve the independence of the judiciary. The number of current judicial vacancies without a nominee has since risen to 29. It is now May, we are more than a third of the way through the year, and the President has still sent only one new judicial nomination to the Senate all year. Meanwhile almost a month has passed and Senator Reid and I have yet to receive the courtesy of a reply to our offer to help and to work together. Unilateralism has become their standard operating practice, and abuse of power has become increasingly common. Indeed, to this day I have yet to meet, talk to or even receive a telephone call from the President's new White House Counsel. The go- it-alone conduct of this Administration makes clear that this President has little use of the Senate's role in the constitutional process of selecting federal judges. Under pressure from the White House, over the last 2 years, the former Republican chairman of the Judiciary Committee led Senate Republicans in breaking with longstanding precedent and Senate tradition. With the Senate and the White House under control of the same political party we have witnessed Committee rule after Committee rule broken or misinterpreted away. The Framers of the Constitution warned against the dangers of such factionalism, undermining the structural separation of powers. Republicans in the Senate have utterly failed to defend this institution's role as a check on the President in the area of nominations. It surely weakens our constitutional design of checks and balances. As I have detailed elsewhere, the list of broken rules and precedents is long--from the way that home-state Senators were treated, to the way hearings were scheduled, to the way the Committee questionnaire was unilaterally altered, to the way the Judiciary Committee's historic protection of the minority by Committee Rule IV was repeatedly violated. In the last Congress, the Republican majority of the Judiciary Committee destroyed virtually every custom and courtesy that had been used throughout Senate history to help create and enforce cooperation and civility in the confirmation process. We suffered through 3 years during which Republican staff stole Democratic files off the Judiciary computers during what has been a ``by any means necessary'' approach. Their approach to our rules and precedents follows their own partisan version of the Golden Rule, which is that ``he with the gold, rules.'' That has not been helpful to the process, the Senate or the country. It is as if those currently in power believe that that they are above our constitutional checks and balances and that they can reinterpret any treaty, law, rule, custom or practice they do not like or they find inconvenient. Some of these interpretations are so contrary to well-established understandings that it is like we have fallen down the rabbit hole in ``Alice in Wonderland.'' I am reminded that the imperious Queen of Hearts rebuked Alice for having insufficient imagination to believe contradictory things, saying that some days she had believed six impossible things before breakfast. I have seen things I thought impossible on the Judiciary Committee during the last few years, things impossible to square with the past practices of Committee and the history of the Senate. Our Committee is entrusted by the Senate to help determine whether judicial nominees will follow the law. It is unfortunate that the Committee that judges the judges has not followed its own rules but has bent or broken them to achieve a predetermined result. 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 is not acting in a measured way but in complete disregard for the traditions of bipartisanship that are the hallmark of the Senate. It has acted to ignore precedents and reinterpret longstanding rules to its advantage. This practice of might makes right is wrong. Now the White House's hand-picked majority leader seems intent on removing the one Senate protection left for the minority, the protection of debate in accordance with the longstanding tradition of the Senate and its Standing Rules. In order to remove the last remaining vestige of protection for the minority, the Republican majority is poised to break the Senate Rules and end the filibuster with the votes of the barest of majorities. They seem intent on doing this to force through the Senate this President's most controversial and divisive judicial nominees. As the Reverend Martin Luther King wrote in his famous Letter from a Birmingham Jail: ``Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.'' Fair process is a fundamental component of the American system of law. If we cannot have a fair process in these halls or in our courts, how will the resulting decisions be viewed? If the rule of law is to mean anything it must mean that it applies to all equally. In the last Congress, I am sorry to report that the rule of law was broken, spindled and mutilated to serve the interests of President George W. Bush and his party. No man and no party should be above the law. That has been one of the strengths of our democracy. Our country was born in reaction to the autocracy and corruption of King George, and we must not forget our roots as a nation of both law and liberty. The best guarantee of liberty is the rule of law, meaning that the decisions of government are not arbitrary and that rules are not discretionary or enforced to help one side and then ignored to aid another. James Madison, one of the Framers of our Constitution, warned in Federalist Number 47 of the very danger that is threatening our great nation, a threat to our freedoms from within: [The] accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny. Our freedoms as Americans are the fruit of too much sacrifice to have the rules broken in the United States Senate by a party colluding with the White House to try to appoint loyalists to courts who have been chosen with the hope that they will re-interpret precedents and overturn the very laws that have protected our most fundamental rights as Americans. The American people deserve better than we have seen with the destruction of rule after rule by a majority willing to sacrifice the role of the Senate as a check and balance in order to aid a President determined to pack the federal courts. How does the record of judicial confirmations for President George W. Bush compare to administrations before his? Very well. In President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton two terms, more than during the term of this President's father, and more than in Ronald Reagan's first term when he was being assisted by a Republican majority in the Senate. With the four judges confirmed so far this year, the total number of confirmations of this President's judicial nominees has risen to 208. It would rise further and faster yet, if the White House would only work with us to identify qualified, consensus nominees for the 29 current vacancies without a nominee. The President has sent only one new nominee to the Senate so far this year, and it is already May. If the President wanted to pick judges instead of fights, he could work with us rather than divide us. And what happened to those 11 nominees the President started us off with 4 years ago? Considering the strong ideological bent of this group, the President has been quite successful. One has been withdrawn from consideration and 8 of the remaining 10 have been confirmed, 80 percent. The confirmations of Clinton circuit court nominees during his second term, from 1997-2000, while a Republican Senate majority was in control, were nowhere near as successful. Over those 4 years 35 of 51 Circuit Court nominees were confirmed, 69 percent. If we looked at 1999 and 2000, the 106th Congress, the numbers are even worse. Fewer than half of the President's circuit court nominees were confirmed, 15 of 34. Outstanding and qualified nominees were never allowed a hearing, a committee vote or Senate consideration of any kind. These nominees include the current dean of the Harvard Law School, a former attorney general from Iowa, a former clerk to Chief Justice Rehnquist and many others--women, men, Hispanics, African Americans, a wide variety of qualified nominees. So on this anniversary, let us understand that 8 of the 10 nominees we will hear complaints about have been confirmed. With respect to the remaining two, I should note that in the years that Republicans held the Senate majority and Senator Hatch was the committee chair, Judge Terry Boyle was one of the very few nominees he chose not to consider. Thus, Judge Boyle is still before the Judiciary Committee. Senator Specter held a hearing on that controversial nomination and the committee is still receiving copies of Judge Boyle's unpublished opinions for its review. The remaining nominee is one whose opinions were criticized by Alberto Gonzales when he served on the Texas Supreme Court with her. Indeed, many of her positions were too conservative and activist for her conservative Republican colleagues on the Texas Supreme Court. When I chaired the committee in 2002, in another gesture of good will, I proceeded on a number of controversial nominations in spite of the recent mistreatment of President Clinton's nominees. One of those hearings was for Priscilla Owen. I was not required to schedule that hearing. I could have followed the example of my immediate predecessor and denied her consideration before the committee. It would have been a much easier path than the alternative I chose. Instead, I proceeded. Senator Feinstein conducted the hearing in a fair manner. After the hearing, I then did something else that my predecessor as Chair so often did not: I proceeded to have the committee consider the nomination on its merits even though I knew I would not support it. The committee debated the nomination fairly and openly. Objections to her confirmation, based on her record as a Justice on the Texas Supreme Court, were aired and honestly debated. A vote was taken and instead of hiding behind anonymous holds or hidden blue slips, Senators put themselves on the record. The result was that the Owen nomination was rejected by a majority of the committee and not recommended to the Senate. Since that time much of what has happened has been unprecedented. Despite the rejection of the nomination by the committee, the President resubmitted the nomination the next year. I do not believe that had ever been done before in our history. Then, on a party-line vote, Republicans forced the nomination to the floor. It was debated extensively and the Senate withheld its consent. After a series of cloture votes, cloture was not agreed upon in accordance with the rules of the Senate. Nonetheless, the President took further unprecedented action in, again, resubmitting the nomination to the Senate. That nomination is now pending, again, on the Senate Executive Calendar. By any measure the President's first nominees were treated fairly. Judge Parker, Judge Shedd, Judge Clement, Judge Cook, Judge Sutton, Judge McConnell, Judge Gregory and Judge Roberts are each serving lifetime appointments on important circuit courts. The first slate of nominees has now all been accorded hearings. All but Judge Boyle have been considered by the Judiciary Committee. All but one of those has been confirmed. This is no basis on which to break the rules of the Senate. This is not justification to end the Senate's role as a check and balance on the Executive. This is not reason for the majority to take the drastic and irreversible step of ending protection of the minority through the tradition of extended debate in the Senate. The White House and the Senate Republican leadership's campaign for ``nuclear option'' seeks to end the role of the Senate serving as a check on the Executive. But that is precisely what the Constitution intends the Senate to provide. Supporters of an all-powerful Executive have gone so far as to seek to inject an unconstitutional religious test into the debate and to characterize those who oppose the most extreme of the President's nominees as ``against people of faith'' and to call for mass impeachments of judges and other measures to intimidate the judiciary. Our independent judiciary is an essential check on the political branches. Pat Robertson says that he believes that federal judges are ``a more serious threat to America than Al Qaeda and the September 11 terrorists'' and ``more serious than a few bearded terrorists who fly into buildings'' and ``the worst threat America has faced in 400 years--worse than Nazi Germany, Japan and the Civil War.'' This is the sort of incendiary rhetoric that is paving the way to the ``nuclear option.'' It is wrong, it is destructive and it is short-sighted. Chief Justice Rehnquist is right to refer to the federal judiciary as the crown jewel of our system of government. It is an essential check and balance, a critical source of protection of the rights of all Americans, including our religious freedoms. In ``A Man For All Seasons'' Sir Thomas More speaks about the rule of law and the need for its protections. When his family confronts him and demands that he break the law to get at the Devil, he replies: What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down . . . do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake! Our Federal judges are not the Devil and are not in the service of the Devil. Democratic Senators are not the Devil and are seeking to uphold the Senate as a check on the most extreme actions of the Executive. I pray that Republican Senators will think about that and reflect on the protections that our constitutional checks and balances provide. I trust that they will honor the protections of the minority that make this institution what it is. I hope that they will show the courage to protect the Senate and the minority that the senior Senator from Pennsylvania spoke about in his important statement a few weeks ago. Mr. President, I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, it is now fairly common on the Senate Floor to hear the statement that we cannot adequately defend our Nation today without our military reserves. Everybody knows that the activation of members of the National Guard and Reserve since September 11, 2001, represents the largest mobilization of our back-up military personnel since World War II. Everyone knows too that members of the National Guard and Reserve comprise over 50 percent of the forces on the ground in Iraq. And, yes, we all know that we are asking the reserves, particularly the National Guard, to help increase security within the domestic United States, whether at prominent events or along our porous national borders. It is critical that we go beyond mere statements and take concrete steps to preserve the readiness, morale, and general effectiveness of this force. This imperative extends particularly to redressing harmful policies that give the impression to our reservists that they are not an equally important part of the wider military and the defense of the Nation. Today Senator Bond and I are introducing legislation that will end one of the most glaring of these inequities. Our legislation, The National Guard and Reserves Housing Equity Act of 2005, effectively terminates a patently unfair low housing allowance provided to reservists when they are called up for a relatively short-term of active service. This so-called lower allowance level, known officially as the Basic Allowance for Housing II, or B.A.H. II, puts on average almost $400 less per month--per month--in the pockets of our reservists than what they would receive if they were regular, active duty members. To any reservist who leaves his or her community, profession, and family for active service, receiving B.A.H. II says that he or she is a second- class member of the military. You might do the same job as a full-time member of the military and live in the same type of housing, but you do not deserve the same allowance. The allowance creates an unacceptable financial hardship that will decrease the willingness of any reasonable person to continue service. This is a very real problem. Last year, Congress and the President enacted a piece of legislation--which I sponsored along with my fellow Guard Caucus Co-Chair Senator Kit Bond-- that authorized greater use of the National Guard for national homeland security missions. Using this new authority, members of the National Guard from my home State of Vermont were called to active duty late last year to help increase security along the Northern Border. Those members of the Guard worked side-by-side with their active duty counterparts. Yet the Guard personnel received over $300 less per month in housing allowances. I cannot tell you how many soldiers and airmen who participated in that mission came up to me and made clear how slighted and insulted they felt by that housing allowance. Those comments mirror what I heard from other members of the Guard who received B.A.H. II on a similar mission. This second-tier housing allowance really burns in the saddle of every citizen-soldier, sailor, airman, and marine, and it is having a real effect on morale. We simply cannot tolerate this inequity to continue, and it is within our power to do something about this. So we have a choice today: Either we can keep this second-tier housing allowance in place and send a signal that we need to save some dollars on the backs of those who have stepped forward to serve, or we can remedy this inequity, making the firm statement that we will take the real steps necessary to support our reservists and provide them the resources so that they can do their jobs and be treated fairly while they serve. The National Guard and Reserves Housing Equity Act of 2005 specifically provides that any member of the reserves called up for more than 30 days will receive the exact same housing allowance as a regular active duty service-member. The legislation gives the Office of Secretary of Defense some discretion to set the allowance under the 30 days, but it should be done on a pro-rated basis on the higher regular allowance. The effect of this legislation will be to end the category of Basic Allowance of Housing II. This legislation has been endorsed unanimously by the 35-military association umbrella group, The Military Coalition. So that all senators may read the specific views of the military associations, I ask that letters from the National Guard Association of the United States, the Enlisted Association of the National Guard of the United States, the Reserve Officers Associations, the Reserve Enlisted Association, the Association of the United States Army, and the Fleet Reserve Association be printed in the Record. The Military Officer's Association of America and the Air Force Sergeant's Association have also directly endorsed this legislation. We often hear statements about supporting our troops, but this is a chance to actually support them. This is an issue that literally affects our troops where they live. I invite our colleagues to join Senator Bond and me in co-sponsoring this legislation and in working to end this grossly unfair system. With the National Guard and Reserves Housing Equity Act of 2005, we are backing up our thanks with meaningful action. With this step we are saying that we are ready to provide a strong foundation of policies that will actually encourage our reservists to continue to serve the country superbly. This is the right thing to do, and I look forward to working with my colleagues on both sides of the aisle to enacting this legislation this year.

Mr. LEAHY. Mr. President, I introduce today the Leahy-Sununu E-mail Privacy Act to ensure that last year's decision by the First Circuit Court of Appeals in a case called United States v. Councilman does not undermine the online privacy that Americans expect and cherish. Senator Sununu has been a leader on privacy issues, and I appreciate and welcome his support. In a strained reading of the Electronic Communications Privacy Act (ECPA), the majority in this case effectively concluded that it was permissible for an Internet Service Provider to systematically intercept, copy and read its customers' incoming e-mails for corporate gain. This outcome is an unacceptable privacy intrusion that is inconsistent with Congressional intent and the commonly-held understanding of the protections provided by ECPA, and requires swift Congressional response. I offer the E-mail Privacy Act as a simple, straightforward way to prevent the erosion of the privacy protection Congress granted to e-mail and ensure that this outcome is not repeated. In 1986 Congress passed ECPA to update the Wiretap Act so that Americans could enjoy the same amount of privacy in their online communications as they do in the offline world. ECPA was a careful, bipartisan and long-planned effort to protect electronic communications in two forms--from real-time monitoring or interception as they were being delivered, and from searches when they were stored in record systems. We recognized these as different functions and set rules for each based on the relevant privacy expectations and threats to privacy implicated by the different forms of surveillance. The Councilman decision upset this careful distinction. Functionally, the ISP was intercepting e-mails as they were being delivered, yet the majority concluded that the relevant rules were those pertaining to stored communications, which exempt ISPs. Specifically, the majority rejected the argument put forth by the Justice Department that an intercept occurs--and the Wiretap Act--applies when an e-mail is acquired contemporaneously with its transmission, regardless of whether the transmission may be in electronic storage for a nanosecond at the time of acquisition. This majority's conclusion fails to consider the nature of electronic communications systems and belies the reality that such searches are functionally an interception. The implications of this decision are broad. While many ISPs are responsible online citizens, this does not change the fact that this decision essentially licenses ISPs to snoop. Even more worrisome is that this decision creates the opportunity for the type of Big Brother invasions that understandably make Americans cringe. For practical reasons, law enforcement often installs surveillance devices at these nanosecond storage points, but before doing so, they have obtained the appropriate legal permission to intercept e-mails--a Title III order. Under the majority's interpretation in the Councilman decision, law enforcement would no longer need to obtain a Title III order to conduct such searches, but rather could follow the less rigorous procedures for stored communications. For example, under the rules for stored communication, if law enforcement were to get the consent of a university-operated ISP, such searches could be performed without the knowledge of users. This is Carnivore unleashed if you will, and is simply not the outcome that Congress intended or the American people expect. Searches that occur in nanosecond storage points during the transmission process are in their function ``interceptions'' and should be treated as such and subject to the wiretap laws. The E-mail Privacy Act is a simple approach to prevent the erosion of privacy protections and clarifies that the wiretap laws apply to e-mail interceptions like those at issue in the Councilman case. In essence, the Act would amend ECPA to clarify that the definition of intercept is not a narrow, rigid concept, but is broad enough to include actions that are functionally equivalent to an interception. Importantly, these careful and slight changes would simply restore the status quo prior to the Councilman decision without disturbing other areas of ECPA and without raising controversial concerns that may be difficult to resolve in the few remaining days of this term. This is an important issue to the American people, and fortunately the E-mail Privacy Act provides a straightforward approach that we can all get behind. Again, I thank Senator Sununu for his support on this important legislation. I am sure he would join me in urging our colleagues to make e-mail privacy a top priority and support the E-mail Privacy Act. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, it is now fairly common on the Senate Floor to hear the statement that we cannot adequately defend our Nation today without our military reserves. Everybody knows that the activation of members of the National Guard and Reserve since September 11, 2001, represents the largest mobilization of our back-up military personnel since World War II. Everyone knows too that members of the National Guard and Reserve comprise over 50 percent of the forces on the ground in Iraq. And, yes, we all know that we are asking the reserves, particularly the National Guard, to help increase security within the domestic United States, whether at prominent events or along our porous national borders. It is critical that we go beyond mere statements and take concrete steps to preserve the readiness, morale, and general effectiveness of this force. This imperative extends particularly to redressing harmful policies that give the impression to our reservists that they are not an equally important part of the wider military and the defense of the Nation. Today Senator Bond and I are introducing legislation that will end one of the most glaring of these inequities. Our legislation, The National Guard and Reserves Housing Equity Act of 2005, effectively terminates a patently unfair low housing allowance provided to reservists when they are called up for a relatively short-term of active service. This so-called lower allowance level, known officially as the Basic Allowance for Housing II, or B.A.H. II, puts on average almost $400 less per month--per month--in the pockets of our reservists than what they would receive if they were regular, active duty members. To any reservist who leaves his or her community, profession, and family for active service, receiving B.A.H. II says that he or she is a second- class member of the military. You might do the same job as a full-time member of the military and live in the same type of housing, but you do not deserve the same allowance. The allowance creates an unacceptable financial hardship that will decrease the willingness of any reasonable person to continue service. This is a very real problem. Last year, Congress and the President enacted a piece of legislation--which I sponsored along with my fellow Guard Caucus Co-Chair Senator Kit Bond-- that authorized greater use of the National Guard for national homeland security missions. Using this new authority, members of the National Guard from my home State of Vermont were called to active duty late last year to help increase security along the Northern Border. Those members of the Guard worked side-by-side with their active duty counterparts. Yet the Guard personnel received over $300 less per month in housing allowances. I cannot tell you how many soldiers and airmen who participated in that mission came up to me and made clear how slighted and insulted they felt by that housing allowance. Those comments mirror what I heard from other members of the Guard who received B.A.H. II on a similar mission. This second-tier housing allowance really burns in the saddle of every citizen-soldier, sailor, airman, and marine, and it is having a real effect on morale. We simply cannot tolerate this inequity to continue, and it is within our power to do something about this. So we have a choice today: Either we can keep this second-tier housing allowance in place and send a signal that we need to save some dollars on the backs of those who have stepped forward to serve, or we can remedy this inequity, making the firm statement that we will take the real steps necessary to support our reservists and provide them the resources so that they can do their jobs and be treated fairly while they serve. The National Guard and Reserves Housing Equity Act of 2005 specifically provides that any member of the reserves called up for more than 30 days will receive the exact same housing allowance as a regular active duty service-member. The legislation gives the Office of Secretary of Defense some discretion to set the allowance under the 30 days, but it should be done on a pro-rated basis on the higher regular allowance. The effect of this legislation will be to end the category of Basic Allowance of Housing II. This legislation has been endorsed unanimously by the 35-military association umbrella group, The Military Coalition. So that all senators may read the specific views of the military associations, I ask that letters from the National Guard Association of the United States, the Enlisted Association of the National Guard of the United States, the Reserve Officers Associations, the Reserve Enlisted Association, the Association of the United States Army, and the Fleet Reserve Association be printed in the Record. The Military Officer's Association of America and the Air Force Sergeant's Association have also directly endorsed this legislation. We often hear statements about supporting our troops, but this is a chance to actually support them. This is an issue that literally affects our troops where they live. I invite our colleagues to join Senator Bond and me in co-sponsoring this legislation and in working to end this grossly unfair system. With the National Guard and Reserves Housing Equity Act of 2005, we are backing up our thanks with meaningful action. With this step we are saying that we are ready to provide a strong foundation of policies that will actually encourage our reservists to continue to serve the country superbly. This is the right thing to do, and I look forward to working with my colleagues on both sides of the aisle to enacting this legislation this year.

Mr. LEAHY

Mr. LEAHY. Mr. President, these confirmations will be the 207th and 208th of 218 nominees brought before the full Senate for a vote to be confirmed. The Senate will have confirmed four more lifetime appointments to the Federal courts this year. With the year being almost one-third concluded, the Republican majority is gaining on the pace it set in 1999 when Senate Republicans allowed President Clinton to appoint only 17 district court judges and not a single nominee to the circuit courts that entire session. These 208 judicial confirmations mean that even with the slow start this year because the President has refused to nominate consensus nominees, or anyone for 29 judicial vacancies, we are currently within 37 confirmations of the 6-year total achieved under the Senate Republican majority during the Clinton administration. That means if the Senate confirms another dozen judges this year and 30 next year, we will have equaled the total of which Senate Republicans were so proud during the Clinton years. The year I chaired the Judiciary Committee, the Senate confirmed 72 of President Bush's nominees. If the President and Senate Republicans would work with us rather than foment conflict and confrontation, we could easily surpass their record. Of the 45 judicial vacancies that will remain after these confirmations, President Bush has not even sent nominees for 29 of those vacancies. I have been encouraging the Bush administration to work with Senators to identify qualified and consensus judicial nominees. The Democratic leader and I sent the President a letter in this regard on April 5, but we have received no response. Indeed, to date the President has only sent the Senate one new judicial nominee all year. Despite the efforts of the Senate Republicans to create a crisis, the truth is that in President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton two terms, more than during the term of this President's father, and more than in Ronald Reagan's first term when he was being assisted by a Republican majority in the Senate. By last December, we had reduced judicial vacancies from the 110 vacancies I inherited in the summer of 2001 to the lowest level, lowest rate and lowest number in decades, since Ronald Reagan was in office. The two district court nominees being confirmed today, Robert Conrad and James Dever, are nominees who have raised concerns. When they were first nominated their home-State Senator had serious questions about them. A home-State Senator's views on a Federal court nominee has a long history of importance in the Senate. The Constitution says we should give the President advice on judicial appointments, and the views of home-State Senators have been very important. Candidly, I wish the White House had heeded Senator Edwards' advice and reconsidered these nominations. After reading some of Mr. Conrad's more inflammatory writings, I do not wonder at Senator Edwards' objections. In particular, I am concerned about what some of the things he has written say about his ability to be a fair judge, and to give all who come before him a fair hearing. Listen to what he wrote about Sister Helen Prejean, one of the bravest and most caring people I have ever met. He calls her book, ``Dead Man Walking,'' ``liberal drivel,'' and shows nothing but contempt for her compassionate work with condemned prisoners. The rhetoric he uses is heated, and his bias for the death penalty is clear. Will any defendant in a capital case who comes before a Judge Conrad feel that they will get a fair hearing from him? Will he feel that a Judge Conrad can put aside personal prejudices and preconceptions? I hope so. Another example is the not-too-subtly titled article, ``Planned Parenthood, A Radical, Pro-Abortion Fringe Group.'' Mr. Conrad's view of the well-respected family planning organization is that it is a ``most radical legal advocate of unfettered abortion on demand,'' and argues they do nothing to reduce teen pregnancy. The Planned Parenthood organization that I know, both in Vermont and nationally, works hard to reduce crisis pregnancies and to preserve families' rights to plan their own futures. His statements make me wonder whether any person going before a Judge Conrad in a case involving reproductive rights, or indeed any issue related to personal privacy, will feel their arguments have been fairly heard. Will he be able to follow the law as written? Again, for the sake of future litigants and the independence of our judiciary, I hope so. I have similar concerns about Judge Dever. I see why Senator Edwards wanted better consultation on these district court nominees. Judge Dever's only two Supreme Court briefs argued against State legislative redistricting action designed to comply with the Voting Rights Act of 1965. When I asked Judge Dever to give me some assurance that he would be impartial when called upon to hear a redistricting case, he could only state that he believed he would be fair. Much of Judge Dever's experience is in the area of representing Republican clients. While employed at a law firm, he provided legal services to several Republican campaigns and has been listed on the Republican National Lawyers Association webpage as an affiliated lawyer. I would like to believe that Judge Dever was nominated based on his own merits, and that his personal relationships will not affect his ability to rule impartially if he is confirmed. I have concerns. I take seriously the views and support of the current North Carolina Senators. I hope that their support of these nominees is justified and that these nominees will serve in accordance with their oath to treat all who come before them fairly. Today, again, Senate Democrats are demonstrating their willingness to work with the President and Senate Republicans. I regret that in spite of all of our actions, the Republican majority seems intent on forcing a confrontation and breaking the Senate Rules in order to change them. The majority leader has apparently cast his lot with those who would alter the role of the Senate as a check and a balance on the choices of a powerful President. The Federal judiciary should not become an extension of the executive or a wholly-owned subsidiary of his political party. Today, Republicans are threatening to take away one of the few remaining checks on the power of the executive branch by their use of what has become knows as the nuclear option. This assault on our tradition of checks and balances and on the protection of minority rights in the Senate and in our democracy should be abandoned. Eliminating the filibuster by the nuclear option would destroy the Constitution's design of the Senate as an effective check on the Executive. The elimination of the filibuster would reduce any incentive for a President to consult with home-state Senators or seek the advice of the Senate on lifetime appointments to the Federal judiciary. It is a leap not only toward one-party rule but to an unchecked executive. Rather than blowing up the Senate, let us honor the constitutional design of our system of checks and balances and work together to fill judicial vacancies with consensus nominees. The nuclear option is unnecessary. What is needed is a return to consultation and for the White House to recognize and respect the role of the Senate appointments process. The American people have begun to see this threatened partisan power grab for what it is and to realize that the threat and the potential harm are aimed at our democracy, at an independent and strong Federal judiciary and, ultimately, at their rights and freedoms. As we proceed to confirm two more lifetime appointments to the Federal courts, I urge Senate Republicans to reconsider and not to head down the destructive path represented by the nuclear option.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am truly frustrated in the failure of the budget resolution conference agreement to include the sense-of-the- Senate provision--which I offered and the Senate accepted by voice vote--that is intended to head off the administration's plans to raid the Crime Victims Fund of over $1.2 billion. The Crime Victims Fund was created under the Victims of Crime Act of 1984, VOCA, as a ``separate account,'' meaning that the revenues in the fund are intended to be used solely for financial support of victim services. The fund does not depend at all on taxpayer revenues; it is derived from Federal criminal fines, forfeitures, and special assessments. Since its inception, amounts deposited into the fund in a given fiscal year have remained available to support victim services in subsequent fiscal years. Following a proposal in the President's budget, this budget resolution conference agreement would rescind all amounts remaining in the fund at the end of fiscal year 2006--an estimated $1.267 billion. That would leave the fund with a balance of zero going into fiscal year 2007 to support vital victim services. This is absolutely shameful and unacceptable. The budget is a statement of our Nation's priorities and with this agreement we say to crime victims, ``Sorry, but your suffering is no longer our concern.'' We are telling crime victims--the victims of child sexual and physical abuse, domestic violence, sexual assault, robbery, assault, DUI/DWI crashes, elder abuse, adults molested as children, and the survivors of homicide victims--that their concerns and suffering do not rise to the level of being a national priority. The provision that we included in the Senate-passed budget resolution expressed the sense of the Senate that we reject the proposed rescission. It assumes that all amounts that have been and will be deposited into the Crime Victims Fund, including all amounts to be deposited in fiscal year 2006 and thereafter, will remain in the fund for use as authorized by the Victims of Crime Act. The Crime Victims Fund is the Nation's premier vehicle for the support of victims' services. Nearly 90 percent of the fund is used to award State crime victim compensation and victim assistance formula grants. VOCA-funded victim assistance programs serve nearly 4 million crime victims each year. VOCA-funded compensation programs have helped hundreds of thousands of victims of violent crime. The fund also serves victims of Federal crimes. VOCA funding supports victim assistance services provided by U.S. Attorneys Offices and the FBI, as well as the Federal victim notification system. It is used for child abuse prevention and treatment grants, and it is also used to provide emergency relief to victims of terrorism and mass violence. Since fiscal year 2000, Congress has set a cap on annual fund obligations expressly for the purpose of ensuring ``that a stable level of funding will remain available for these programs in future years.'' The ``rainy day'' fund created by this spending cap has been used to make up the difference between annual deposits and distributions three times during the past 6 years. When Congress began considering caps on fund obligations, I proposed and Congress enacted an amendment to the Victims of Crime Act to clarify our intent to stabilize and preserve the fund for the benefit of victims. The amendment, now codified at section 10601(c) of title 42, requires that `` . . . all sums deposited in the fund in any fiscal year that are not made available for obligation by Congress in the subsequent fiscal year shall remain in the fund for obligation in future fiscal years, without fiscal year limitation.'' Thus, in both the authorization and the appropriations processes, Congress has clearly and emphatically stated its intent to maintain a stable source of Federal support for essential victim services. Over the past 4 years, the Bush administration and this Republican Congress have squandered record surpluses and racked up $7.6 trillion in Federal debt as a result of reckless spending and budget-busting tax cuts. Now the President and this budget resolution conference agreement propose to reduce the deficit by siphoning off resources that we set aside to assist victims of crime. The entire crime victims' community--including the National Center for Victims of Crime, the National Network to End Domestic Violence, the National Organization for Parents of Murdered Children, the National Children's Alliance, and Mothers Against Drunk Driving--stands united in opposition to the proposed rescission. These organizations represent the millions of Americans who become victims of crime every year. They have argued that rescinding the fund at the end of fiscal year 2006 would create a ``disastrous'' situation for victim service providers and their clients. My friend and colleague, Senator Crapo, recently joined me to lead a bipartisan group of 29 senators on a letter to the Senate Appropriations Subcommittee on Commerce, Justice and Science requesting that they oppose proposals to rescind all amounts remaining in the fund at the end of fiscal year 2006. Each of those Senators recognized that we bear a responsibility to victims of crime; that it is appropriate that compensation come from convicted criminals and provided to the victim; and that it is entirely inappropriate to expunge this money from the fund and transfer it into the pot of appropriated taxpayer dollars. In the House, a letter with the identical request has 91 bipartisan cosigners. Clearly broad Congressional support for the preservation of the fund exists. In every State and every community across the country, the Crime Victims Fund plays an essential role in helping crime victims and their families meet critical expenses, recover from the horrific crimes they endured, and move forward with their lives. It is an embarrassment that this budget resolution agreement fails to preserve the fund--as we promised we would--for the benefit of victims.

Mr. LEAHY

Mr. LEAHY. Mr. President, one year ago today, the horrific photos of detainee abuse at Abu Ghraib prison shocked the Nation and tarnished our reputation as the world's human rights leader. One year later, we should be able to assure the world that the detainee abuse scandal has been independently and comprehensively investigated and that all those involved, from the people who committed abuses to the officials who set these policies in motion, have been held accountable. Sadly, we cannot give the world this assurance. The administration continues to stonewall on the prisoner abuse scandal and Congress continues to abdicate its oversight responsibility on this issue. Those of us in the Congress who strongly believe that oversight and accountability are paramount to restoring America's reputation as a human rights leader remain stymied in our efforts to learn the truth about how this administration's policies trickled down from offices in Washington to cellblocks in Abu Ghraib. This Senate refuses to consider an independent commission, relying instead on the piecemeal investigations conducted by the military, none of which address the significant role of the Central Intelligence Agency in interrogations. With the completion of each of the Pentagon investigations, the need for a comprehensive, independent investigation becomes all the more evident. I am particularly disturbed by recent press reports about the Army Inspector General's investigation into the Abu Ghraib abuse scandal. Although the report has not yet been publicly released, the press accounts state that Lt. Gen. Ricardo Sanchez has been cleared by the Army of all allegations of wrongdoing and likely will not face punishment. In order to understand why the reported findings of the Army Inspector General are troubling, and why an independent investigation is necessary, we need only consult the reports of prior investigations. The Jones investigation, referring to the Combined Joint Task Force led by Lt. Gen. Sanchez, stated, ``Inaction at the CJTF-7 staff level may . . . have contributed to the failure to discover and prevent abuses before January 2004.'' The Jones report concluded that Lt. Gen. Sanchez ``failed to ensure proper staff oversight of detention and interrogation operations.'' The Schlesinger investigation is even more critical of Lt. Gen. Sanchez's role in the detainee abuse scandal. The Schlesinger panel described how Lt. Gen. Sanchez relied upon the interrogation policy from Guantanamo Bay to develop interrogation procedures for Iraq. The result of this, as the Schlesinger panel correctly states, was that ``policies approved for use on al Qaeda and Taliban detainees who were not afforded the protection of [Enemy Prisoner of War] status under the Geneva Conventions now applied to detainees who did fall under the Geneva Convention protections.'' The Schlesinger report continued, ``Despite lacking specific authorization to operate beyond the confines of the Geneva Conventions, [Lt. Gen. Sanchez] nonetheless determined it was within [his] command discretion to classify, as unlawful combatants, individuals captured during [Operation Iraqi Freedom].'' The panel also found that Lt. Gen. Sanchez ``was responsible for establishing the confused command relationship at the Abu Ghraib prison'' and ``the unclear chain of command established by CJTF-7, combined with the poor leadership and lack of supervision, contributed to the atmosphere at Abu Ghraib that allowed the abuses to take place.'' The findings of the Jones and the Schlesinger investigations regarding the decisions of Lt. Gen. Sanchez are troubling on their own. Equally troubling is the indication that Lt. Gen. Sanchez gave inaccurate testimony before the Senate Armed Services Committee. In an Armed Services Committee hearing on May 19, 2004, Senator Jack Reed asked Lt. Gen. Sanchez if he had approved sleep deprivation, intimidation by guard dogs, excessive noise, and inducing fear as interrogation methods for use in Abu Ghraib prison. Lt. Gen. Sanchez replied that, ``I never approved any of those measures to be used within CJTF-7 at any time in the last year.'' His statement is seemingly contradicted by a document recently released by the Pentagon in response to litigation under the Freedom of Information Act. A September 14, 2003, memo from Lt. Gen. Sanchez authorized specific interrogation methods for use in Iraq, including the use of military working dogs to exploit Arab fear of dogs, the use of sleep management and stress positions, and inducing fear through ``yelling, loud music, and light control.'' There has been some speculation in the media about whether Gen. Sanchez's actions in Iraq will stand in the way of his promotion and fourth star. But involvement in the prisoner abuse scandal is hardly a career-ending event in this administration. Alberto Gonzales, the central figure in formulating the administration's interrogation and detention policies, was promoted to Attorney General. Former Assistant Attorney General Jay Bybee, author of the deeply flawed and now- repudiated ``torture memo,'' received a lifetime appointment to the Court of Appeals for the Ninth Circuit. Defense Department General Counsel William J. Haynes insisted that the Pentagon Working Group use the Bybee torture memo, rather than the Geneva Conventions, as the legal foundation for interrogation techniques; he has been nominated to the Court of Appeals for the Fourth Circuit. Former CIA Director George Tenet authorized the ``extraordinary rendition'' of detainees to countries where they were reported to have been tortured; he was awarded the Presidential Medal of Freedom. Secretary Rumsfeld personally approved objectionable interrogation techniques and admitted to hiding detainees from the International Committee of the Red Cross; he is one of the few cabinet members asked to remain in the second Bush term. Allowing senior officials and military officers to avoid accountability sets a dangerous precedent. It is time for Congress, even this Republican-led Congress, to recognize its constitutional obligation to conduct vigorous oversight. We must send a message that no one in the chain of command--from an enlisted private stationed in Iraq to the Commander-in-Chief--is above the laws of our Nation. Many Republicans argue that another investigation will hurt the morale of our troops serving overseas. On the contrary, I believe that morale is hurt when the only individuals who have been punished for detainee abuse are low-ranking soldiers, while those at the highest levels of power continue to set policy and act with impunity. Chairman Warner recently announced that he will hold an Armed Services Committee hearing to examine the adequacy of the various Pentagon and military investigations. I commend the chairman for announcing this hearing, and hope that the supporters of an independent investigation are given the opportunity to testify before the committee. In a letter last September, eight retired generals and admirals asked President Bush to appoint a prisoner abuse commission modeled on the 9/11 Commission. In that letter, the officers stated, ``internal investigations by their nature . . . suffer from a critical lack of independence. Americans have never thought it wise or fair for one branch of government to police itself.'' I hope that members of the Armed Services Committee will consider these words when they evaluate the Pentagon's investigations. April 28, 2004, will remain a dark day in American history, but the administration's handling of this scandal only adds to our disgrace. There will always be scandals and tragedies in a nation's history. What makes America special is that we do not hide from these issues; we investigate them, learn from our mistakes, and make sure they do not happen again. Unfortunately, one year after the disclosure of the Abu Ghraib photos, we still have much to learn.

Mr. LEAHY

Mr. LEAHY. Mr. President, I introduce today the Leahy-Sununu E-mail Privacy Act to ensure that last year's decision by the First Circuit Court of Appeals in a case called United States v. Councilman does not undermine the online privacy that Americans expect and cherish. Senator Sununu has been a leader on privacy issues, and I appreciate and welcome his support. In a strained reading of the Electronic Communications Privacy Act (ECPA), the majority in this case effectively concluded that it was permissible for an Internet Service Provider to systematically intercept, copy and read its customers' incoming e-mails for corporate gain. This outcome is an unacceptable privacy intrusion that is inconsistent with Congressional intent and the commonly-held understanding of the protections provided by ECPA, and requires swift Congressional response. I offer the E-mail Privacy Act as a simple, straightforward way to prevent the erosion of the privacy protection Congress granted to e-mail and ensure that this outcome is not repeated. In 1986 Congress passed ECPA to update the Wiretap Act so that Americans could enjoy the same amount of privacy in their online communications as they do in the offline world. ECPA was a careful, bipartisan and long-planned effort to protect electronic communications in two forms--from real-time monitoring or interception as they were being delivered, and from searches when they were stored in record systems. We recognized these as different functions and set rules for each based on the relevant privacy expectations and threats to privacy implicated by the different forms of surveillance. The Councilman decision upset this careful distinction. Functionally, the ISP was intercepting e-mails as they were being delivered, yet the majority concluded that the relevant rules were those pertaining to stored communications, which exempt ISPs. Specifically, the majority rejected the argument put forth by the Justice Department that an intercept occurs--and the Wiretap Act--applies when an e-mail is acquired contemporaneously with its transmission, regardless of whether the transmission may be in electronic storage for a nanosecond at the time of acquisition. This majority's conclusion fails to consider the nature of electronic communications systems and belies the reality that such searches are functionally an interception. The implications of this decision are broad. While many ISPs are responsible online citizens, this does not change the fact that this decision essentially licenses ISPs to snoop. Even more worrisome is that this decision creates the opportunity for the type of Big Brother invasions that understandably make Americans cringe. For practical reasons, law enforcement often installs surveillance devices at these nanosecond storage points, but before doing so, they have obtained the appropriate legal permission to intercept e-mails--a Title III order. Under the majority's interpretation in the Councilman decision, law enforcement would no longer need to obtain a Title III order to conduct such searches, but rather could follow the less rigorous procedures for stored communications. For example, under the rules for stored communication, if law enforcement were to get the consent of a university-operated ISP, such searches could be performed without the knowledge of users. This is Carnivore unleashed if you will, and is simply not the outcome that Congress intended or the American people expect. Searches that occur in nanosecond storage points during the transmission process are in their function ``interceptions'' and should be treated as such and subject to the wiretap laws. The E-mail Privacy Act is a simple approach to prevent the erosion of privacy protections and clarifies that the wiretap laws apply to e-mail interceptions like those at issue in the Councilman case. In essence, the Act would amend ECPA to clarify that the definition of intercept is not a narrow, rigid concept, but is broad enough to include actions that are functionally equivalent to an interception. Importantly, these careful and slight changes would simply restore the status quo prior to the Councilman decision without disturbing other areas of ECPA and without raising controversial concerns that may be difficult to resolve in the few remaining days of this term. This is an important issue to the American people, and fortunately the E-mail Privacy Act provides a straightforward approach that we can all get behind. Again, I thank Senator Sununu for his support on this important legislation. I am sure he would join me in urging our colleagues to make e-mail privacy a top priority and support the E-mail Privacy Act. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am proud to submit today with my friend and colleague Senator Specter a bipartisan resolution to designate May 15, 2005, as National Peace Officers Memorial Day. Joining us in the introduction of this resolution are Senators Hatch, Biden, Brownback, Cornyn, DeWine, Durbin, Feingold, Feinstein, Kennedy, Kohl, Kyl, and Schumer. This is the ninth year running that I have been involved in the introduction of this resolution to keep alive in the memory of all Americans the sacrifice and commitment of those law enforcement officers who lost their lives serving their communities. For 8 years I introduced this resolution with my old friend and our former colleague Senator Campbell, a former deputy sheriff who was a true leader on this issue. Now I have teamed with Senator Specter, a former prosecutor who has witnessed first-hand the risks faced by law enforcement officers every day while they serve and protect our communities. His knowledge and experience in this area is a true asset to the American people and I thank him for his leadership on it. I also want to thank each of our Nation's brave law enforcement officers for their unwavering commitment to the safety and protection of their fellow citizens. They are real-life heroes, too many of whom too often give the ultimate sacrifice, and they remind us of how important it is to support and respect our state and local police officers. Currently, more than 850,000 men and women who guard our communities do so at great risk. Each year, 1 in 15 officers is assaulted, 1 in 46 officers is injured, and 1 in 5,255 officers is killed in the line of duty in the United States every other day. After the hijacked planes hit the World Trade Center in New York City on September 11, 2001, 72 peace officers died while trying to ensure that their fellow citizens in those buildings got to safety. That act of terrorism resulted in the highest number of peace officers ever killed in a single incident in the history of our country. In 2004, 154 law enforcement officers died while serving in the line of duty, well below the decade-long average of 169 deaths annually, and a major drop from 2001 when a total of 237 officers were killed. A number of factors contributed to this reduction including better equipment and the increased use of bullet-resistant vests, improved training and advanced emergency medical care. And, in total, more than 17,500 men and women have made the ultimate sacrifice--of that number 42 are police officers who have already been killed in 2005 while serving in the line of duty. In the 108th Congress, we shepherded into law a number of measures to issues to make a difference in the lives of all police officers and the communities they serve. We improved the Justice Department's Public Safety Officers Benefits Program by making law the Hometown Heroes Survivors Benefits Act, P.L. No. 108-182, which allows survivors of public safety officers who suffer fatal heart attacks or strokes while participating in non-routine stressful or strenuous physical activities to qualify for Federal survivor benefits. Also becoming law was the Campbell-Leahy Bulletproof Vest Partnership Grant Act, P.L. No. 108-372, which extends through fiscal year 2007 the authorization of appropriations for the Bulletproof Vest Partnership Grant Program that helps State, tribal and local jurisdictions purchase armor vests for use by law enforcement officers. I hope that with the help of this program we can make sure that every police officer who needs a bulletproof vest gets one. Last year, the Law Enforcement Officers Safety Act, which Senator Campbell and I championed in the Senate, was signed into law, P.L. No: 108-277. This measure established national measures of uniformity and consistency to permit trained and certified on-duty, off-duty or retired law enforcement officers to carry concealed firearms in most situations so that they may respond immediately to crimes across State and other jurisdictional lines, as well as to protect themselves and their families from vindictive criminals. National Peace Officers Memorial Day will provide the people of the United States with the opportunity to honor the extraordinary service and sacrifice given year after year by our police forces. More than 25,000 peace officers are expected to gather in Washington to join with the families of their fallen comrades. I hope my colleagues will join us in supporting passage of this important bipartisan resolution.

Mr. LEAHY

Mr. LEAHY. Mr. President, it has taken some time, but the Senate Republican leadership will finally allow the Senate to consider the nomination of Michael Seabright to be a United States District Court Judge for Hawaii. I commend the distinguished Senators from Hawaii for their effort in identifying this consensus nominee. When Mr. Seabright is confirmed by an overwhelming, bipartisan vote of the Senate, he will be the 206th nominee of this President confirmed to a lifetime appointment to our Federal courts. This is only the second judicial nomination Senate Republicans have been willing to consider all year. There has been no filibuster of judicial nominees this year. Instead, it is the Senate Republican leadership that, through its deliberate inaction, is keeping judgeships unnecessarily vacant for months. With this nomination and with the nomination of Judge Crotty, I was the one asking for months for the nomination to be considered, debated, voted, and confirmed. For the last several weeks, I have been calling upon the Republican readership to proceed to the confirmation of Michael Seabright to the District Court of Hawaii. All Democrats on the Judiciary Committee had been prepared to vote favorably on this nomination for some time. We were prepared to report the nomination last year, but it was not listed by the then-chairman on a committee agenda. I thank Chairman Specter for including Mr. Seabright at our meeting on March 17. The nomination was unanimously reported and has been on the Senate Executive Calendar for more than a month. It is Senate Republicans who resisted a vote on this judicial nominee, not Democrats. In their fashion, they did so without any explanation akin to the anonymous ``holds'' that doomed more than 60 of President Clinton's judicial nominees not so long ago. Once confirmed, Mr. Seabright will be the 206th of 216 nominees brought before the full Senate for a vote to be confirmed. That means that 829 of the 875 authorized judgeships in the Federal judiciary, or 95 percent, will be filled. It is regrettable that Republican delay has now pushed the Senate behind even the pace set by the Republican majority in 1999, when President Clinton was in the White House. That year, the Senate Republican leadership did not allow the Senate to consider any circuit court nominees for the entire session and only 17 district court nominees were confirmed. The Republican Senate has fallen behind that pace. Of the 47 judicial vacancies now existing, President Bush has not even sent nominees for 29 of those vacancies, more than half. I have been encouraging the Bush administration to work with Senators to identify qualified and consensus judicial nominees and do so, again, today. The Democratic leader and I sent the President a letter in this regard on April 5, but we have received no response. It is now the last week in April. We are almost one-third through the year and so far the President has sent only one new nominee for a Federal court vacancy all year--only one. Instead of sending back divisive nominees, would it not be better for the country, the courts, the American people, the Senate, and the administration if the White House would work with us to identify, and for the President to nominate, more consensus nominees such as Michael Seabright who can be confirmed quickly with strong, bipartisan votes? I commend the Senators from Hawaii for their efforts to work cooperatively to fill judicial vacancies. I only wish Republicans had treated President Clinton's nominees to vacancies in Hawaii with similar courtesy. Had they, there would not have been the vacancies on the Ninth Circuit and on the District Court. The work of the Senators from Hawaii is indicative of the type of bipartisan efforts Senate Democrats have made with this President and remain willing to make. We can work together to fill judicial vacancies with qualified, consensus nominees. The vast majority of the more than 200 judges confirmed during the last 3\1/2\ years were confirmed with bipartisan support. The truth is that in President Bush's first term, the 204 judges confirmed were more than were confirmed in either of President Clinton two terms, more than during the term of this President's father, and more than in Ronald Reagan's first term when he was being assisted by a Republican majority in the Senate. By last December, we had reduced judicial vacancies from the 110 vacancies I inherited in the summer of 2001 to the lowest level, lowest rate and lowest number in decades, since Ronald Reagan was in office. The Hawaii judgeship at issue here has been vacant for more than 4 years, since December of 2000 when Judge Alan Kay took senior status. President Clinton made a nomination to that seat in advance of the vacancy, but the Republicans in control of the Senate refused to act on it. They preserved the vacancy for a Republican President. In 2002, President Bush nominated James Rohlfing to the vacancy. That nomination failed, however, because in the view of his home State Senators and the American Bar Association, he was not qualified for the position. It took the White House more than 2 additional years to agree. Finally, in May 2004 that nomination was withdrawn by President Bush. The administration finally got it right after consultation with the Hawaii Senators. The President sent Michael Seabright's name to the Senate last September. An outstanding attorney who has experience in private practice as well as a sterling reputation as an Assistant United States Attorney, Mr. Seabright merited consideration and swift confirmation. Despite his reputation as a law-and-order Republican, Republicans would not move on Mr. Seabright's nomination last Congress. The President took his time renominating Mr. Seabright and even then it took repeated requests to get his nomination included on the agenda of the committee. When he was considered on March 17, he was reported with unanimous support. Senate Democrats have long supported and requested action on this nomination. I have been urging this President and Senate Republicans for years to work with all Senators and engage in genuine, bipartisan consultation. That process leads to the nomination, confirmation, and appointment of consensus nominees with reputations for fairness. The Seabright nomination, the bipartisan support of his home State Senators, and the committee's action by a unanimous bipartisan vote is a perfect example of what I have been urging. I have noted that there are currently 29 judicial vacancies for which the President has delayed sending a nominee. In fact, he has sent the Senate only one new judicial nominee all year. I wish he would work with all Senators to fill those remaining vacancies rather than through his inaction and unnecessarily confrontational approach manufacture longstanding vacancies. It is as if the President and his most partisan supporters want to create a crisis. Over the last weeks, we have heard some extremists call for mass impeachments of judges, court-stripping, and punishing judges by reducing court budgets. Now we are seeing an effort at religious McCarthyism by which Republican partisans inject religion into these matters. Rather than promote crisis and confrontation, I urge the President to disavow the divisive campaign and, instead, do what most others have and work with us to identify outstanding consensus nominees. It ill serves the country, the courts and, most importantly, the American people for this administration and the Senate Republican leadership to continue down the road to conflict. The Seabright nomination shows how unnecessary that conflict really is. Let us join together to debate and confirm consensus nominees to these important lifetime posts on the Federal judiciary. It is the Federal judiciary that is called upon to rein in the political branches when their actions contravene the constitutional limits on governmental authority and restrict individual rights. It is the Federal judiciary that has stood up to the overreaching of this administration in the aftermath of the September 11 attacks. It is more and more the Federal judiciary that is being called upon to protect Americans' rights and liberties, our environment and to uphold the rule of law as the political branches under the control of one party have overreached. Federal judges should protect the rights of all Americans, not be selected to advance a partisan or personal agenda. Once the judiciary is filled with partisans beholden to the administration and willing to reinterpret the Constitution in line with the administration's demands, who will be left to protect American values and the rights of the American people? The Constitution establishes the Senate as a check and a balance on the choices of a powerful President who might seek to make the Federal judiciary an extension of his administration or a wholly-owned subsidiary of his political party. Today, Republicans are threatening to take away one of the few remaining checks on the power of the Executive branch by their use of what has become knows as the nuclear option. This assault on our tradition of checks and balances and on the protection of minority rights in the Senate and in our democracy should be abandoned. Eliminating the filibuster by the nuclear option would destroy the Constitution's design of the Senate as an effective check on the Executive. The elimination of the filibuster would reduce any incentive for a President to consult with home State Senators or seek the advice of the Senate on lifetime appointments to the Federal judiciary. It is a leap not only toward one-party rule but to an unchecked executive. Rather than blowing up the Senate, let us honor the constitutional design of our system of checks and balances and work together to fill judicial vacancies with consensus nominees. The nuclear option is unnecessary. What is needed is a return to consultation and for the White House to recognize and respect the role of the Senate appointments process. The American people have begun to see this threatened partisan power grab for what it is and to realize that the threat and the potential harm are aimed at our democracy, at an independent and strong federal judiciary and, ultimately, at their rights and freedoms. Mr. President, I commend the two Senators from Hawaii, Mr. Inouye and Mr. Akaka, for their support and their work with the White House in getting this nominee to the floor. I commend the White House for working with them. This nominee was confirmed unanimously in the Senate Judiciary Committee, Republicans and Democrats joined alike. I urge on our side of the aisle that all Senators vote for him. I have been advised by the distinguished members of the Republican side of the aisle that they are willing to yield back their time. So I ask that all time on either side on this nominee be yielded back so we can go to a vote.

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

Mr. LEAHY

Mr. LEAHY. Mr. President, today I wish to make a short statement on the work of Tom Russo. Mr. Russo is a vice chairman of Lehman Brothers, making his time some of the most valuable time in the world. But, it is precisely what Mr. Russo does with this time that I would like to speak about here today--in particular his work with the Institute of International Education--IIE--and the scholar-rescue program. Mr. Russo has played a leadership role in working with IIE to establish a program that helps to bring scholars, whose lives are in danger in their home countries, to the United States. Once in the United States, the scholars are matched with host universities according to their academic specialty and the needs of the university. In many ways, this program is a win-win. The scholars, and in some cases their families, are removed from harm's way. Universities in the U.S. get top-rate scholars to teach and conduct research, while IIE helps to defray some of the costs to these institutions. Of course, everyone would prefer that these scholars were able to remain in their home countries shaping the intellectual culture there, especially the scholars themselves. But, these are cases where there is no other option. It is either leave or be killed. And we have a moral responsibility to help these scholars escape and continue their work, in hopes of one day returning and advancing the knowledge base in their home nations. One only has to look at the newspaper to see that there is virtually unlimited demand for this program. Let me read a few sentences from an article in last Wednesday's Washington Post, entitled ``Attacks Across Iraq kill 12, Wound Over 60''. The article reads: ``Elsewhere in the capital, masked men shot and killed a professor, Fuad Ibrahim Mohamed Bayati, as he left home for the University of Baghdad, police said.'' Tom Russo and his colleagues, including Henry Jarecki, a board member of IIE, and Alan Goodman, the president of IIE, have worked tirelessly to build this program. I know this because on several different occasions I have met with Henry, Alan, or Tom about the scholar-rescue program. It is abundantly clear from our conversations that they are deeply involved with the program and are passionate about the good work that it is doing around the world. While the scholar-rescue program cannot prevent every tragedy, I can attest it is making a difference. I also know that, instead of resting on their laurels, Mr. Russo, Dr. Jarecki, Dr. Goodman, and others are laboring day and night to expand the program to come to the aid of more scholars and their families. I appreciate all Mr. Russo is doing and wanted to bring his work to the attention of the Senate. I encourage all of my colleagues to read about Tom Russo and the scholar-rescue program. I ask that an article from the New York Sun on Mr. Russo be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, will the Senator from Kentucky, inasmuch as I have been mentioned, allow me 2 minutes to refer to what the distinguished leader has been saying?

Mr. LEAHY. Yes. Mr. President, one, I compliment the Senator from Nevada. I appreciate the kind words he has said about me. I know how hard he has worked to work out this issue. I have been in numerous meetings with him. He has met with both me and the chairman of the committee. We have discussed ways we could work this out. Frankly, I have been in some of those same discussions with my friends on the other side of the aisle. All of us agree this is a reasonable way to work it out. We should not be talking about judges under the question of nuclear options or religious tests or all the other red herrings that have been out here. It loses sight of what the Constitution is. It speaks of advice and consent. Both the President of the United States and the Senate have a role. This begins at the other end of Pennsylvania Avenue. The President cannot just simply say: I will send and you will consent. It says advice and consent. I think what the distinguished Senator from Nevada has said is something I have heard Republican Senators say over and over again in my 30 years here. Let us work this out. And then let's work with the White House so we have both advice and consent. That is how we got 205 judges. That is why 95 percent of President Bush's judges have been confirmed. That is the way we can work on the remaining ones. So I compliment the Senator from Nevada. I hope his discussions with the Senator from Tennessee work out. I know there is nothing the chairman of the committee and I would like better than to be able to go on with the work of the Judiciary Committee and not with parliamentary maneuvering. Mr. SCHUMER addressed the chair.

Mr. LEAHY

Mr. LEAHY. Mr. President, I spoke on the floor last week to briefly recount some of the many reasons that Vermont and the Nation will miss the leadership, the independence and the decency of Senator Jim Jeffords when he chooses to retire from the Senate at the end of his current term. Since then there have been many news articles and editorials that have also catalogued and described various aspects of Jim Jeffords' distinguished legacy. As is often the case when he writes about the events and issues of the day, Emerson Lynn, the publisher of the St. Albans Messenger in my home State of Vermont, did this particularly well. I would like to share his editorial with the members of the Senate. I ask unanimous consent that Emerson Lynn's recent editorial about Senator Jeffords be printed in the Record

Mr. LEAHY

Mr. LEAHY. Mr. President, I thank my friend from Utah for his usual courtesy. After all, he has in his lineage a Senator. His father, as does he, served as a Senator. He knows, as did his father, the normal courtesies that make this place run so much more smoothly. So I appreciate it. I spoke at the beginning of the week about the alarming rise of religious McCarthyism. I hoped that by drawing attention to this situation the majority leader and other Republican leaders would speak out against any campaign that improperly characterizes Senators as being ``against people of faith.'' That demonizing of Senators and their motives has no place in this country, and absolutely none in debate among Senators. It is a slur. It is a smear. It is untrue. Every Senator, Republican and Democratic, knows it. The Republicans should denounce a campaign based on bigotry and demagoguery. With rare exceptions, they have refused to do so. And even the majority leader will apparently act in support of such a campaign this weekend.

Mr. LEAHY. Mr. President, I yield the floor.

Mr. LEAHY

Mr. LEAHY. Thank you.