Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I am privileged to represent a State that values families and the tradition of this country as much or more than any State in our Nation. We are the 14th State in the Union. We are a State that values and respects not only our families, but our duties to the rest of the country. In fact, during the current war in Iraq, Vermont has lost on a per capita basis more soldiers than any other State in the country. We are a very special State. We also have a wonderful constitution, the shortest constitution, I believe, of any State in the Nation. We hold to it as we do the U.S. Constitution. We have provisions in our Vermont State Constitution which make it very difficult to change, for a reason. It has guided us for well over 200 years, just as our U.S. Constitution has guided the nation as a whole. When you change the fundamental role of the Federal Government to have it intrude into the lives of our people and into our separate religious institutions, that is wrong. Doing so preemptively, based on the false premise that the U.S. Supreme Court, the Supreme Court of Chief Justice Rehnquist and Justice O'Connor, is going to reach out and require States to approve same-sex marriages, is ill founded. Doing so in order to write discrimination into the Constitution is abhorrent. Instead of a respectful and deliberative process with respect to the U.S. Constitution, we have something else going on here, something that Senator Durbin and Senator Feingold and others spoke of yesterday. None of the various proposed constitutional amendments have gone through the traditional process to help the Senate determine whether a proposed amendment is ``necessary,'' as, of course, the Constitution requires. Changing the fundamental charter of our Nation should not be proposed in this haphazard manner. Everybody here knows that this is a political exercise being carried out on the fly. It shows little respect for the Constitution or the priorities of the American people. Instead of taking action against terrorism, providing access to prescription drugs at lower prices, improving the criminal justice system, engaging in oversight to get to the bottom of the Iraq prison abuse scandal, providing a real Patients' Bill of Rights against the HMOs, or just fulfilling the basic requirements of the Senate by passing a budget and determining the 12 remaining appropriations bills on which the Senate has yet to act, the Republican leadership in the Senate has frittered away another week, with only 5 weeks left in the session. We have lost another week, but they know on the vote they will not win. The American people have felt the need to amend the Constitution only 17 times since the adoption of the Bill of Rights. You would not recognize that tradition of restraint in looking at this Congress, in which dozens of proposed amendments to the Constitution have been introduced. The Senate has voted to increase the democratic rights of our citizens on several occasions, but we have only voted once to limit the rights of the American people. That was prohibition. We know that failed, and we had to come back in an embarrassed way and vote to repeal it. This is a motion to proceed to the third version of the Federal Marriage Amendment that has been introduced in this Congress. Senator Daschle and the Democratic leadership offered a fair up-or-down vote on this amendment, but the Republican leaders refused. Instead, they want to have a constitutional convention on the Senate floor, with multiple votes on a variety of versions of constitutional amendments. Yesterday, the distinguished Senator from Oregon, Mr. Smith, indicated he was not insisting on a vote on his version of a constitutional amendment. I have not heard the distinguished senior Senator from Utah insist on a separate vote on an alternative version. I really do not understand why the Republican leadership wouldn't agree to an up-or-down vote at a certain time on this amendment, as Senator Daschle offered. It almost seems as if the Republican leadership can't take yes for an answer on this procedural matter. Are we facing crises here in the United States? I suppose that we are, but they are not constitutional crises. They are real-world problems. They have more to do with international terrorism and difficult economic times for America's working families than how the people of the State of Massachusetts will determine how to work out a State constitutional amendment or other approaches to the question of marriage in their State. No constitutional crisis exists demanding constitutional changes. Look at two of our largest States, California and New York. They have Republican Governors. Their Republican Governors are not asking us to change the Constitution. Many of the Republican Senators in this Chamber know there is not a constitutional crisis, and I commend their courage in opposing this amendment. I compliment the Log Cabin Republicans for their forthrightness and courage. They are right that marriage is an issue for the States and for our religious institutions within their separate spheres. In fact, they are right that Vice President Cheney and I agree on this, even though the Vice President is uncharacteristically silent at this moment. I began this debate last Friday by urging that our Constitution not be politicized. I am saddened to see the proponents of this amendment and those trying to make this an election year issue see nothing as off limits or out of bounds, not even the Constitution. They propose turning the Constitution of the United States from the fundamental charter preserving our freedoms into a kiosk for political bumper stickers. They would reduce it to a device--in their words--to ``stand up against the culture.'' The real conservatives, the conservatives of Vermont and other States--know that conserving the Constitution is among the most important responsibilities we have. Our oath as Senators--an oath I have taken five times, and I can remember each one of them as though it was yesterday--is to ``support and defend the Constitution of the United States.'' Where is the respect for our States here? The Republican-appointed judges in Massachusetts changed their rules on marriage. But Massachusetts can decide for Massachusetts. They can change their constitution. But, of course, what we do here is going to force other States to ignore their own constitution or their own laws. Whether they like it or not, we will tell them what they have to do. I hear many say Republicans and others on the Massachusetts Supreme Court endangered marriages. If I may be personal for a moment, I have been married for 42 years, to the most wonderful person I have ever known. In my mind, she is the most wonderful wife anyone could have. I sometimes ask myself why she has put up with me for 42 years, but she has. We have three beautiful children, two wonderful daughters-in-law, a wonderful son-in-law, all of whom we love. We were blessed this past weekend with our third grandchild. How wonderful it was to hold her literally minutes after she was born. Like the former senior Senator from my State, Senator Stafford, I could say that everything I have accomplished in my life that has been worthwhile has been with the help of my wife Marcelle. We do not find our marriage endangered. I do find a Constitution endangered if we start using it for bumper sticker slogans. That is what we are doing, and we must stop. The Constitution is too great a part of our heritage and our freedoms and our diversity and the democracy we love to tarnish it in this fashion. When we vote today, we will not be voting to preserve the 42-year marriage of Patrick and Marcelle Leahy. She and I will not be affected by this vote, but millions of Americans will be. Remember those gay and lesbian Americans across the Nation who are looking to the Senate today to see whether this body is going to brand them as inferiors in our society. Those who vote against cloture recognize the fullness of their worth and their citizenship. I will not vote to diminish other Americans in the Constitution. I urge all Senators to vote ``no.'' I have to wonder what Americans are thinking as they watch the Senate devote its limited time to debate the Federal marriage amendment. Do they think the Nation is in a midst of a crisis that only a constitutional amendment can resolve? Are they pleased that the Senate has turned away from legislation that could improve their daily lives to engage in this debate? I doubt it. Let me review the current legal landscape in America. Massachusetts is the only State in the Union providing marriage licenses to same-sex couples, and its citizens are in the midst of the State constitutional process to overturn that policy. In addition, Massachusetts has limited same-sex marriage to couples who reside or intend to reside there. Meanwhile, none of the other 49 States has moved to legalize gay marriage during the many months that have followed the Goodridge decision in Massachusetts. I think most Americans would agree with me that the sky has not fallen during the 2 months during which same-sex couples have married in Massachusetts. They may support gay marriage, or like me, they may believe that civil unions are the appropriate way to recognize the seriousness of gay and lesbian relationships. Or they may oppose any recognition at all for same-sex couples. But at a fundamental level, they understand that States should have the authority to decide who can marry, and that the relationships being formed between consenting adults in Massachusetts have not harmed their own marriages or their own families. The Rutland Herald, a Pulitzer Prize-winning newspaper in my State, wrote the following in an editorial last month: [A] remarkable thing has happened since gay marriages began legally in Massachusetts last month: nothing. Gay and lesbian couples who have trooped to their town clerks or church altars have joined in the most significant relationship of their lives, and it has not been nothing to them. But no cataclysmic shock to society has occurred. Marriages happen as a matter of course, and though they are one of the most significant events in the life of the individual, they are a routine matter in the life of a community. Now gay marriage, too, has become routine, at least in Massachusetts. As The Rutland Herald suggests, most Americans have not felt any effects from developments in Massachusetts, and many are surely mystified and dismayed by the Senate's fascination with the topic. So why are we here today? We are certainly not here to legislate. Everyone in this chamber knows the Senate will not adopt this amendment. If you listen to Senator Santorum or Senator Hatch, you know they say we are here to ``put people on record,'' apparently including the many Republicans who have expressed reservations about the FMA or oppose it outright. Obviously, the Senate leadership has decided that forcing a vote in relation to the FMA will benefit the Republican Party politically, from the race for the White House to the Senate races that will determine which party controls the agenda for the 109th Congress. Ever since President Bush publicly embraced amending the Constitution to ban same-sex marriage, it has been obvious that he considered the issue of gay marriage crucial to his re-election campaign. The President's plan was clear: his right-wing base may have been alienated by his calls for immigration reform or a mission to Mars, but he would win them back by aggressively promoting a marriage amendment. And since the President's opponent is a Member of this body, it was only a matter of time before this amendment reached the floor, regardless of what procedural traditions had to be sidestepped to do it. Of course, the President has never said what words he wants to be included in the Constitution. His Department of Justice has never testified before the Judiciary Committee of the House or Senate, and has never said what words it believes would be appropriate to include in the Constitution. The President and his administration want the benefit of supporting this discriminatory amendment without getting their hands dirty by delving into the specific and ugly words. This lack of concern about the language of the amendment is of course not limited to the White House. As I stressed in my opening statement, the language of this amendment is rather beside the point for its congressional supporters, too. The President addressed the issue of gay marriage in his State of the Union address in January. He said, ``If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.'' Yet, on February 24--barely a month after the State of the Union address--and without any additional court anywhere in the country ruling on gay marriage, the President flip-flopped and endorsed putting a ban on gay marriage in the Constitution. I can only assume that something turned up in the White House's polling to prompt such a dramatic about-face. Or perhaps Karl Rove's phone simply would not stop ringing with calls from the hard- right groups that compose the core of the President's support. In any event, the day after the President endorsed the concept of a constitutional amendment, I wrote him and asked what specific language he wanted us to add to the Constitution. After all, we have only amended the Constitution 17 times since the Bill of Rights. If the President was calling on Congress to amend it for an 18th time, I thought the least he could do is make clear what language he seeks. I have waited in vain for a response. I am not surprised by the President's conduct in this matter. He has proven himself willing over the last 3\1/2\ years to take whatever measures he finds politically expedient. He has also shown that he is more than willing to play political games with the Constitution, as we see with today's debate and we will see again in the upcoming debate on a constitutional amendment to ban flag desecration an issue that Vice President Cheney has been campaigning on recently. The President, the Vice President, and the rest of the administration have withheld information from Congress and the public whenever it suits them. And facts have proven to be awfully malleable things when they have stood in the way of the President's political priorities. For this administration, it is all politics all the time regardless of the truth or the consequences. Let me provide three of the many possible examples. When the facts got in the way of the President's prewar statements about Iraq, and Joseph Wilson pointed out the flaws in the President's 2003 State of the Union address concerning Iraq's alleged efforts to obtain uranium in Niger, someone in the Administration apparently told the press that Wilson's wife was an undercover agent at the CIA. The President promised that the perpetrator would be discovered and punished. But if he has made any efforts to discover the leaker's identity, we are unaware of them. Instead, he has retained counsel and allowed the investigation to grind on, perhaps in the hope that the issue will not be resolved until after election day. When the facts got in the way of the President's proposal to expand Medicare to provide prescription drug benefits, his Department of Health and Human Services simply withheld those facts from Congress. When Congress considered the prescription drugs bill last fall, it received an estimate from the Congressional Budget Office that the cost of implementing the new program would be about $395 billion. It has since come to light that Richard Foster, the chief Medicare actuary, completed a cost estimate for the Bush administration last fall that showed the new prescription drug benefit would cost $550 billion, drastically more than the CBO estimate. In testimony before Congress, Mr. Foster explained that he was told that if he made his cost analysis public, he would be fired. The Congressional Research Service recently reported that it believes the Bush administration violated the law by withholding Mr. Foster's report and stated that it is clear that Congress has the right to receive truthful information from Federal agencies to assist in its legislative functions. It was a breach of trust with this Congress and with the American people. And in today's papers we learn that there are administration estimates that when the purported prescription drug benefits are supposed to finally kick in around 2006, what is likely to happen is that almost 4 million retirees will, in fact, lose prescription drug benefits. That means that the Bush administration is now withholding its own estimates that one-third of all retirees with employer- sponsored drug coverage will, in fact, suffer more rather than be helped by the bill they forced through the Congress to benefit large insurance and pharmaceutical companies at the expense of our seniors. Finally, when we in Congress raised legitimate concerns about the administration's policies on the abuse of prisoners abroad and requested documents that would shed light on the administration's policies regarding the treatment and interrogation of detainees, the White House released a small number of self-serving documents and chose to hide the rest. Then it ``disavowed'' the Office of Legal Counsel memo that laid out a strategy for evading the limits of the Torture Convention as if that document, which is legally binding on the Executive Branch, had been nothing more than the doodling of an overly imaginative young lawyer at the Department of Justice. The administration obviously does not want the Congress or the American people to know the facts about its actions abroad or its slippery commitment to upholding American values. Let there be no mistake: We are here today because the President wants to distract the American people from the facts of the weakened economy and reduced standing abroad that his administration has produced. He and the Senate Republican leadership prefer a political circus and seek to whip the American people into a frenzy based on the actions of a single State. I am not so sure their political calculations are correct. I believe the American people regardless of their position on gay marriage--will be disappointed by the majority's overreaching. They will see this debate for what it is--a show produced to benefit Republicans politically while doing nothing to enhance or protect the sanctity of marriage. Senator Chafee predicted months ago that his leadership might bring the amendment up ``just for political posturing.'' He has proved prescient. As I said at the fourth and final hearing the Judiciary Committee held on gay marriage, this debate is not about preserving the sanctity of marriage. It is about preserving a Republican White House and Senate and about doing so by scapegoating gay and lesbian Americans. I oppose this amendment, and I again urge my colleagues to oppose it as well. This debate perfectly illustrates the Senate's priorities. We are spending days on a Federal marriage amendment that we all know does not have the votes to pass the Senate and that the House may never even put to a vote. I have spoken before about the divisiveness of this debate and the contempt that it shows for our constitutional traditions. This debate, however, also demonstrates the Senate Republican leadership's disregard for the needs of the American people and the institutional responsibilities of this body. The Senate has been unable to get its own house in order. It is mid- July and we have still not passed a budget. The Senate has passed only one of 13 appropriations bills, and the leadership has suggested they may not be able to find the time to pass the others as individual bills. I do not believe we have ever passed only one appropriations bill in the Senate before the August recess, but we certainly seem to be headed in that direction. A July 7 editorial in Roll Call lamented what it called the ``Big Mess Ahead.'' We are now stuck in that big mess. Roll Call noted that ``July should be appropriations month in the Senate.'' I agree. July has traditionally been when we got our work done and made sure that funding for the various functions of the Federal Government would be appropriated by the Congress as it exercised its responsibilities and the power of the purse. Not this year. We have not done our part to help American employers create jobs. We have not completed work on a highway bill that could create 830,000 jobs, or on the FSC-ETI bill, subjecting American businesses to retaliatory tariffs that are increasing monthly. At the same time we have dallied on measures to expand the economy, and we have refused to extend unemployment benefits, even as 2 million Americans have exhausted their unemployment insurance. We have not addressed the health care needs of our citizens. The majority has refused to take up either a drug reimportation bill that has the support of a majority of Senators, or mental health parity legislation that has 68 sponsors. Meanwhile, the Senate has done nothing to address the fact that 43 million Americans have not had health insurance for more than a year. We have failed those hardworking Americans who struggle every day to make ends meet on wages that barely reach the poverty line. We have not increased a minimum wage that has remained unchanged since 1996. As inflation has risen and the economy has worsened, the working poor must struggle to live on the same wage Congress passed 8 years ago. The core inflation rate rose 2 percent in the first quarter of this year alone. In addition to allowing the minimum wage to stagnate, the majority has abandoned efforts to reauthorize the welfare reform law, leaving thousands of families in desperate need of quality childcare behind. We have also failed our veterans. This failure begins at the top. The President has consistently proposed underfunding veterans' programs. His budget request for this year failed to maintain even the current level of services. Secretary of Veterans Affairs Principi recently testified that his department asked the White House for an additional $1.2 billion, but that request was denied. Forced to choose between our veterans and the President, the majority has sided against our veterans. During consideration of this year's budget resolution, Senator Daschle offered an amendment to fund veterans programs at the level recommended by veterans' groups in the Independent Budget. Unfortunately, only one Republican voted in favor of this amendment, and it was defeated. A second amendment, offered by Senator Bill Nelson, would have increased funding for veterans by $1.8 billion. It too was defeated. Not a single Republican supported the Nelson amendment. My friends on the other side of the aisle then offered a ``smoke and mirrors'' amendment on veterans' care. Although this amendment made it seem that the Senate was voting to provide more money for veterans, we all know that this amendment did not add one red cent. The main purpose of this amendment was to provide political cover for the November election. While the administration is shortchanging VA funding, out-of-pocket expenses for veterans are skyrocketing. Under the Bush administration, these expenses are projected to rise by an incredible 478 percent. Certain Priority 8 veterans are blocked from VA health care altogether, while others cannot receive treatment unless they pay a ridiculously high co-payment. Instead of debating polarizing issues like the Federal marriage amendment, we should be acting to provide real resources for the men and women who served this country with honor. Unlike in 2000, the Republican majority has not even made the pretense of addressing the priorities of our Nation's immigrants. The majority leader engaged in parliamentary tricks last week to avoid a vote on Senator Craig's immigration reform bill and has found no time for the bipartisan DREAM Act, which would help thousands of immigrant students in our Nation. The prospect of comprehensive immigration reform is even more remote. Sadly, the list of what we are not accomplishing goes on and on. Roll Call observed in its editorial last week that ``the second session of the 108th Congress is poised to accomplish nothing.'' The way things are going, under Republican leadership this session will make the ``do nothing'' Congress against which President Harry Truman ran seem like a legislative juggernaut. The days we spend on this amendment could be spent more productively on any of the matters I just mentioned, but instead we are debating the FMA. We have followed this course even though there are only 6 weeks remaining in the Senate's scheduled work year. I fear that at this point in an election year, floor time is only available for matters that advance the majority's narrow political agenda. This is a sad contrast from 1996, when we passed a minimum wage increase, a welfare reform bill, and other matters in a productive summer during which we occasionally put the election aside and took care of business for the American people. I supported some of those initiatives and opposed others, but I believed they were important matters that deserved the Senate's extended attention. This summer, the Senate seems content to act as an extension of the President's reelection campaign. Why else would we be considering an amendment prompted by gay marriages in Massachusetts, 2 weeks before Democrats convene in Boston for their national convention? In light of all the talk about potential terrorist activity at the political conventions, we should be spending time passing appropriations bills for the Departments of Justice and Homeland Security. Instead, this Senate will grind to a halt and ignore its pressing duties to conduct a debate whose outcome we all know. I am not naive. I know that politics has always influenced Congress. It could not be otherwise. I fear, however, that the Republican leadership has taken the politicization of the Senate to new heights. Have we ever taken up a constitutional amendment that did not have the support even of a firm majority of this body, over the objection of the minority party, without even having the Judiciary Committee consider it? We should reject this amendment and move on to the matters that make a difference in the daily lives of our constituents.

Mr. LEAHY

Mr. LEAHY. Mr. President, I oppose amending our Constitution with the Federal Marriage Amendment (FMA) because it interferes in a fundamental State matter, and, worse yet, it does so for the purpose of disfavoring a group of Americans. We have never amended our Constitution for that purpose, and we should not start now. The timing of this debate strongly supports my point that the FMA's supporters are concerned not with preserving the sanctity of marriage, but with preserving Republican politicians. I am disappointed that we are debating a divisive and mean-spirited amendment that violates the traditions of Federalism and local control that the Republican party claims to cherish. We should be upholding the commitment to tolerance that underlies our Constitution, not betraying it with a premature debate that we all know will yield nothing but division in this body and among the American people. I urge all Senators to honor our oath as Senators to ``support and defend the Constitution'' and not sacrifice it to this short-term partisan exercise. This debate risks great harm by casting States and gay Americans into second-class status and also harms the Senate. The Republican Senate leadership has shown contempt for the constitutional amendment process by bringing this proposed constitutional amendment directly to the Senate without the approval--or even the consideration--of the Judiciary Committee or its Constitution Subcommittee. The Senate and the Judiciary Committee have followed a consistent practice for the consideration of constitutional amendments in the past. Before a constitutional amendment receives floor consideration it is debated and voted on by both the Subcommittee on the Constitution and the Judiciary Committee as a whole. This is the process that the Senate is currently following for the amendment to ban flag desecration, an amendment that has been considered by the Senate on numerous occasions, and that we followed in conjunction with the crime victims rights constitutional amendment. By contrast, the Federal Marriage Amendment, which is being considered for the first time, was not debated or voted on in either the subcommittee or the full Committee, yet it is before us on the floor today. Past attempts to skirt Committee consideration of constitutional amendments, in the absence of an agreement between the parties, have drawn sharp condemnation. Twenty-five years ago, an amendment calling for direct election of the President and Vice-President was brought to the floor without Judiciary Committee approval. Senator Hatch, the then-ranking Republican member on the Constitution Subcommittee, said: ``To bypass the committee is, I think, to denigrate the committee process, especially when an amendment to the Constitution of the United States of America, the most important document in the history of the Nation, is involved.'' The late Senator Thurmond said that ``if a bill of this nature is not going to be referred to a committee to consider it, I do not know why we need Committees in the U.S. Senate.'' In 1979, Senator Hatch said it was ``unconscionable to bring up legislation under these circumstances.'' Apparently what was ``unconscionable'' in 1979 is applauded in 2004 so long as it is being done for partisan Republican purposes. I joined with all of my Democratic colleagues on the Judiciary Committee in writing last month to the Chairman to request that this amendment go through the normal channels. That request was ignored by the Chairman and apparently rejected by the Senate Republican leadership as it chooses for its own benefit to change yet another longstanding practice of the United States Senate. The procedural treatment the Republican leadership is giving this proposed amendment to the Constitution of the United States is perhaps more appropriate for a resolution commemorating an organization's anniversary or a celebratory day, which are sometimes discharged from the Judiciary Committee without debate and agreed to by the full Senate. When we are dealing with a resolution designating something as universally accepted as ``National Girl Scout Week,'' it does not offend me to skip Committee consideration. But short cuts are not fitting when we are talking about amending our fundamental national charter. Perhaps cutting corners like this and its maneuvering reveals how the Republican leadership really sees this amendment. Perhaps this exercise is, after all, not intended as a serious effort to amend the Constitution--something deserving deliberate consideration and careful refinement during the Committee process. It seems that this forced exercise is intended instead as the legislative equivalent of a political bumper sticker, suddenly appearing on the Senate floor late in an election year. I assume that our longstanding practice was disregarded because the majority did not want to risk seeing the FMA defeated in committee. Or perhaps their decision to press this matter into debate, in spite of last week's terrorism warning, the unresolved intelligence failures and torture scandal and the lack of progress on a budget and Federal appropriations matters, was made hastily to fit the political calendar. Forcing a debate at this time shows they have no interest in passing an amendment--they simply want to go through the motions to please their hard-right base and try to inflict political damage of those of us who stand up for the Constitution. The New York Times reported yesterday how much pressure Republicans have been under from their extreme right wing to turn to this matter. This is apparently especially true now that the Republican Party has decided to try to put a pretty face on its harmful policies at its upcoming convention by featuring its few moderates. Those moderates do not set the policy for the national Republican Party and oppose this amendment. However the national Republican Party tries to dress itself up at its convention, the hard truth is that they are choosing to foster division by pressing this matter. If the Senate Republican leadership were interested in amending the Constitution, they would not bring this amendment to the floor now and face certain defeat. Committee consideration of an amendment is not merely a box to check in a procedural flowchart. Committee consideration of any legislation, especially constitutional amendments, affords an opportunity to address problems that are not easily remedied on the Senate floor. Committee consideration can also ensure that we agree on what an amendment does, even if we disagree on whether what it does is desirable. I certainly do not believe that we are at that point as we begin this premature debate. In that light, I would like to discuss some of the open questions raised by this amendment. I would like to place in the Record a story from the February 14 Washington Post about the formation of the FMA. The basic theme of the report was that even the drafters of the FMA disagree about what it means. Matt Daniels, the head of the Alliance for Marriage, a group promoting the FMA, was honest enough to tell the Post that the drafters of the amendment did not worry too much about the wording, saying, ``I don't think we expected there would be this much attention paid to it.'' Although the language of the amendment before us has changed slightly from the original version, it is essentially the same as the sloppy patchwork version introduced last year. I think that Mr. Daniels' attitude speaks volumes about the respect the supporters of this amendment have for the Constitution. This attitude is apparently shared by President Bush, who has made clear his desire to use this issue for political advantage. Although the President has asked Congress to amend the Constitution to ban gay marriage, he has refused repeated calls to state specifically what language he believes Congress should adopt. Like the Senate leadership, the President appears happy to seek political profit by demeaning both the Constitution and gay and lesbian Americans. I would contrast the casual approach of the President toward the words of our Constitution with the approach of Senator Byrd--the most senior member of this body and a fierce defender of the Constitution-- during the 1997 debate over the Balanced Budget Amendment. Senator Byrd said: I would like to remind my colleagues that law and legislating is about the examination of details. We don't legislate one-liners, or campaign slogans. Here, in this body and in the other body, we put the force of the law behind details that impact mightily upon the daily lives of our people. That is a solemn responsibility. And it is more important than political popularity, or winning the next election or marching lockstep to the orders of one political party, or another. Especially in the case of amending the Constitution, that responsibility weighs more heavily. For in that instance we are contemplating changes in our basic, fundamental organic law--changes that, when once implanted in that revered document, can only be removed at great difficulty, and which will impact, quite possibly, upon generations of Americans who, yet unborn, must trust us to guard their birthright as Americans.'' Senator Byrd was right--the words of a Constitutional amendment matter deeply. This is the third version of this amendment that has been introduced in the Senate, and it may not be the last. Senator Hatch has publicly toyed for months with introducing a different version of the amendment and Senator Smith is reported to be working on still another version. The version of the Federal Marriage Amendment before us today reads as follows: ``Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.'' First, the amendment appears to dictate to voters what language they can put in their own State Constitutions. The natural reading of the FMA suggests that voters in a State could not place in their State Constitutions any benefits for same-sex couples that could be defined as ``legal incidents'' of marriage. This limitation is particularly noteworthy in light of the current proceedings in Massachusetts. In response to the Supreme Judicial Court's decision in Goodridge, the Massachusetts Legislature has approved an amendment to the Massachusetts Constitution that would limit marriage to heterosexual unions but provide many of the benefits of marriage to same-sex couples through civil unions. This amendment is supported by Governor Mitt Romney, who testified before the Judiciary Committee last month. Yet it appears that the Massachusetts amendment might be rendered unenforceable if the FMA were adopted, for no court would be permitted to ``construe'' the Massachusetts Constitution to provide for civil unions, which surely provide many of the ``legal incidents'' of marriage. Without judicial recognition of civil unions, the rights created for gay couples under the Massachusetts Constitution would not be worth the paper they are written on, even if they were approved by a majority of the State's voters. Governor Romney told the Judiciary Committee that he somehow supports both the Federal and Massachusetts amendment, and did not believe they conflicted. I do not see how he can hold that position. Neither did former Representative Bob Barr, a conservative Republican from Georgia, who testified before the Committee at the same hearing. Congressman Barr said: Governor Romney essentially is here to ask the Congress to step in and have the federal government invalidate the actions of the highest state court in his state, and also to strangle before its birth the proposed state constitutional amendment that his own state legislature passed this year. That State constitutional amendment, if passed next session and ratified by his state's voters, would deny marriage rights to same-sex couples, but also provide civil unions. The Federal Marriage Amendment, however, would invalidate any civil union provided by the Massachusetts state constitution, and of course would also invalidate all same-sex marriages in the state.'' Second, it is unclear from the language of the FMA whether its prohibition on ``construing'' a Constitution is limited to the judicial branch. From the plain text of the amendment, executive branch officials--from a Governor to county clerks--would similarly be prohibited from construing even a duly-passed State constitutional amendment to provide for the ``legal incidents'' of marriage, whatever those should be. This is a potentially breathtaking imposition on our States and their officials. Third, the term ``legal incidents'' is itself extraordinarily vague. Since the amendment did not go through the proper channels, we have no Committee report language to clarify this or any of the other vague elements of this amendment. We do have the thoughts of Marilyn Musgrave, the House sponsor of the FMA, from a memo she produced to explain the meaning of the amendment. In her view, ``legal incidents'' include, among many other things, the right to bring actions for the wrongful death of a partner, rights and duties under adoption law, and even the right to hospital visitation. Her sweeping view would thus prevent any court anywhere from finding that any State constitutional provision might protect a person's right to visit their same-sex partner in a hospital. And in the absence of a Committee report on the amendment, courts would likely have little choice but to give substantial weight to her view. Fourth, although some supporters of the proposed amendment state categorically that the amendment leaves State legislatures free to pass civil union laws, that claim is also open to serious doubt. Surely Senator Allard and his allies cannot mean to put the Senate through this ordeal only to put the word ``marriage'' off limits to same-sex couples. Should a State pass a law that provides for marriage in all but name, would supporters of this amendment not mount legal challenges based on the amendment's first sentence? Indeed, two of the amendment's intellectual godfathers--Professors Robert George of Princeton and Gerald Bradley of Notre Dame Law School--have said they believe it would forbid civil unions that were sufficiently similar to marriage. Fifth, the application of the amendment is not even limited to State actors, but would also apparently bind the behavior of private organizations, including private religious organizations. The first sentence of the amendment purports to define marriage for all time and for all purposes. In other words, no one could marry same-sex couples, regardless of whether that person was acting on behalf of the State. This is one of the reasons why so many religious organizations oppose this amendment, including the Episcopal Church, USA, the Alliance of Baptists, and the American Jewish Committee. The only amendment that binds private parties is the Thirteenth, which forbids slavery anywhere in the United States. Given the stain of slavery on our nation, and its inherent evil, the Thirteenth Amendment's sweeping ban is obviously appropriate. To take that extraordinary step here and to impose a definition upon all churches and faiths to tell them what they must do is overreaching and inappropriate. Marriage is first and foremost a religious concept and institution. Respecting religion, the Federal Government ought to stay out of defining what a religious definition of marriage can be. One thing we can say with certainty about this amendment is that if it is passed, it will present a field day for litigation. This amendment is all the more mean-spirited because it is unnecessary. Unless we are planning to use the constitutional process to overturn a single State's marriage policy--a purpose that I doubt has the support of even one-third of this body--the only possible rationale for the amendment is to authorize States not to recognize same-sex marriages performed in other States. This rationale is already accomplished, however, by both the inherent right of States to establish their own policies regarding marriage and by the Defense of Marriage Act, which Congress passed and President Clinton signed in 1996. Many proponents of this amendment have stated as fact that the Constitution's Full Faith and Credit Clause requires States to give the force of law to marriage licenses issued by other States. This is simply not the case. Lea Brilmayer, a professor at Yale Law School and an expert on the Full Faith and Credit clause, told the Judiciary Committee in March that the Clause was designed and has been interpreted to ensure that judgments entered by one State's courts are respected in other States. Marriage licenses are not judgments, she said, and they have ``never received the automatic effect given to judicial decisions.'' Rather, ``courts have not hesitated to apply local public policy to refuse to recognize marriages entered into in other states.'' Moreover, Professor Brilmayer testified that the Full Faith and Credit Clause ``has never been understood to require recognition of marriages entered into in other states that are contrary to local `public policy.' The `public policy' doctrine, which is well recognized in conflict of laws, frees a state from having to recognize decisions by other States that offend deeply held local values.'' Under this long-established ``public policy'' doctrine, the nearly 40 States that have elected to pass their own ``Defense of Marriage'' acts would be expected not to have to recognize a same-sex marriage from Massachusetts. Of course, the small minority of States that have not passed such laws are free to pass them at any time. If they do not do so, just maybe preventing the recognition of other States' gay marriages is not a burning issue for their citizens. As the Judiciary Committee has learned, the Constitution places no requirement on Pennsylvania to recognize a gay marriage from Massachusetts. In the unlikely event that Federal courts take a different view and alter the historic understanding of the Full Faith and Credit Clause, however, the Defense of Marriage Act provides an additional layer of security for States that do not wish to recognize same-sex marriage. The federal law says that no State shall be required to give effect to any public act, record, or judicial proceeding of another state respecting a relationship between persons of the same sex that is treated as a marriage. It is the law of the land, and no court has found it to be unconstitutional. It seems to me that DOMA is presumptively constitutional, especially since the Full Faith and Credit Clause itself provides Congress with the power to direct the Clause's interpretation: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Some of my colleagues have suggested that we need to amend the Constitution now because the Supreme Court may either (a) invalidate DOMA and find that the Full Faith and Credit Clause requires 50-State recognition of Massachusetts gay marriages; or (b) go beyond even that analysis by finding a right to same-sex marriage under the Equal Protection Clause of the Fourteenth Amendment. My initial reaction to these predictions about the judiciary is that they do not square with the Rehnquist Court I have been watching for the last 17 years. It is true that the Supreme Court found last year, in Lawrence v. Texas, that Texas and a handful of other States could no longer make it a crime for homosexual couples to engage in sexual acts in the privacy of their own home. And it is true that many of those who support the Federal Marriage Amendment decried this imposition on Texas's right to punish its gay and lesbian citizens. It is a far leap, however, from saying that gay couples should not be thrown in jail and saying that they have a Constitutional right to marry. The comparisons that some are making between the Lawrence and Goodridge decisions are vastly overblown. My second reaction, however, is the one that should move the Senate to reject this amendment. Perhaps my colleagues' fearful predictions about the activism of the Rehnquist court will come true. More likely, they will not. But Congress's job is not to imagine outcomes that appellate courts or even the Supreme Court might conceivably reach and preemptively amend the Constitution to prevent them. We have had enough difficulties during this Congress stemming from a preemptive war--we need not add a new preemptive theory to our arsenal. When it comes to the Constitution, it is simply wrong for the Senate to ``shoot first and ask questions later.'' Rather, it is our duty to show restraint. If the Court should reverse 200-plus years of understanding of the Full Faith and Credit Clause, or find that the Equal Protection Clause prohibits limiting marriage to heterosexual couples, a future Congress can react to that decision however it sees fit. That Congress will act in a way consistent with the views and circumstances of their time. I believe preemptive action on this matter would set a precedent that both Republicans and Democrats in this body would come to regret. Congressman Barr, the author of the Defense of Marriage Act, illuminated this point when he testified last month. Congressman Barr said: In treating the Constitution as an appropriate place to impose publicly contested social policies, [the FMA] would cheapen the sacrosanct nature of that document, opening the door to future meddling by liberals and conservatives. . . . The Founders created the Constitution with such a daunting amendatory process precisely because it is only supposed to be changed by overwhelming acclamation. It is so difficult to revise specifically in order to guard against the fickle winds of public opinion blowing counter to basic individual rights like speech or religion. Part of Congressman Barr's testimony should be of particular note to my conservative colleagues. He said, ``We know that the future is uncertain, and our fortunes unclear. I would like to think people will think like me for a long time to come, but if they do not, I fear the consequences of the FMA precedent. Could liberal activists use the FMA argument to modify the Second Amendment? Or force income redistribution? Or ban tax cuts?'' This should be food for thought for all those--from the right or from the left--who would use the Constitution as a playground for their policy preferences. This is a sad day for the Senate. We all take an oath to uphold the Constitution of the United States. But when the Republican majority brings a constitutional amendment to the floor in defiance of our normal procedures, and with full knowledge that it will not pass, it demonstrates a fundamental disrespect for our Constitution and for this institution, the United States Senate. I close by echoing the words of Senator Byrd from the debate on the Balanced Budget Amendment: ``What is really wanted by some in this body is not the amendment itself, but an issue with which to whip its opponents. This is simple politics, my colleagues. And it is politics at its most unappealing and destructive level.'' I will have more to say about the Federal Marriage Amendment as this debate proceeds.

Mr. LEAHY

Mr. LEAHY. Mr. President, a number of us remain concerned about the abuse of foreign prisoners, and about the guidance provided by the President's lawyers with regard to torture. Much has happened since June 17, 2004, when the Judiciary Committee defeated, on a party-line vote, a subpoena resolution for documents relating to the interrogation and treatment of detainees and June 23, when the Senate defeated an amendment to the Defense Authorization bill on a party-line vote that would have called upon the Attorney General to produce relevant documents to the Senate Judiciary Committee. Because of continued stonewalling by the administration, we remain largely in the dark. Several Republican Senators have indicated that we should give the administration more time to respond to inquiries, although some of us had been asking for information for more than a year. The Republican administration continues its refusal to provide the documents that have been requested and refused even to provide an index of the documents being withheld. The Department of Justice admitted in the July 1 letter that it had ``given specific advice concerning specific interrogation practices,'' but would not disclose such advice to members of this committee, who are duly elected representatives of the people of the United States, as well as members of the committee of oversight for the Department of Justice. USA Today reported on June 28, 2004, that the Justice Department issued a memo in August 2002 that ``specifically authorized the CIA to use `waterboarding,'' ' an interrogation technique that is designed to make a prisoner believe he is suffocating. This memo is reportedly classified and has not been released. According to USA Today: ``Initially, the Office of Legal Counsel was assigned the task of approving specific interrogation techniques, but high-ranking Justice Department officials intercepted the CIA request, and the matter was handled by top officials in the deputy attorney general's office and Justice's criminal division.'' So while former administration officials grant press interviews and write opinion articles denying wrongdoing; while the White House and Justice Department hold closed briefings for the media to disavow the reasoning of this previously relied upon memoranda and to characterize what happened; Senators of the United States are denied basic information and access to the facts. The significance of such unilateralism and arrogance shown to the Congress and to its oversight committees cannot continue. I have long said that somewhere in the upper reaches of this administration a process was set in motion that rolled forward until it produced this scandal. To put this scandal behind us, first we need to understand what happened. We cannot get to the bottom of this until there is a clear picture of what happened at the top. It is the responsibility of the Senate, including the Judiciary Committee, to investigate the facts, from genesis to final approval to implementation and abuse. The documents must be subject to public scrutiny, and we will continue to demand their release. There is ample evidence that American officials, both military and CIA, have used extremely harsh interrogation techniques overseas, and that many prisoners have died in our custody. Administration officials admit that 37 foreign prisoners have died in captivity, and several of these cases are under investigation, some as homicides. On June 17, David Passaro, a CIA contractor, was indicted for assault for beating an Afghan detainee with a large flashlight. The prisoner, who had surrendered at the gates of a U.S. military base in Afghanistan, died in custody on June 21, 2003, just days before I received a letter from the Bush administration saying that our Government was in full compliance with the Torture Convention. Some individuals who committed abusive acts are being punished, as they must be. But what of those who gave the orders, set the tone or looked the other way? What of the White House and Pentagon lawyers who tried to justify the use of torture in their legal arguments? The White House has now disavowed the analysis contained in the August 1, 2002, memo signed by Jay Bybee, then head of the Office of Legal Counsel. That memo, which was sent to the White House Counsel, argued that for acts to rise to the level of torture, they must go on for months or even years, or be so severe as to generate the type of pain that would result from organ failure or even death. The White House and DOJ now call that memo ``irrelevant'' and ``unnecessary'' and say that DOJ will spend weeks rewriting its analysis. As we all know, on June 22, 2004, the White House released a few hundreds of pages of documents--a self-serving and highly selective subset of materials. The documents that were released raised more questions than they answered. Now, more than two weeks later, none of those issues have been resolved. For example, the White House released a January 2002 memo signed by President Bush calling for the humane treatment of detainees. Did the President sign any orders or directives after January 2002? Did he sign any with regard to prisoners in Iraq? Why did Secretary Rumsfeld issue and later rescind tough interrogation techniques? And how did these interrogation techniques come to be used in Iraq, where the administration maintains that it has followed the Geneva Conventions? Where is the remaining 95 percent of material requested by members of the Senate Judiciary Committee? Why is the White House withholding relevant documents dated after April 2003? I was gratified that the Senate on June 23 passed an amendment that I offered to the Defense authorization bill that will clarify U.S. policy with regard to the treatment of prisoners and increase transparency. But the stonewalling continues: The Pentagon opposes this amendment. I am hopeful that we will prevail in keeping this provision in the bill. Five Republican Senators supported the amendment against an attempt to table it. I thank each of them. I also want to commend the Senate for adopting, also as part of the Defense authorization bill, the Durbin amendment against torture, and I want to acknowledge an important step taken in the House on the same day. The House Appropriations Committee added language to the 2005 Justice Department spending bill that would prohibit any department official or contractor from providing legal advice that could support or justify use of torture. As it completed its term, the Supreme Court issued its decisions in highly significant cases involving the legal status of so-called enemy combatants. The Court reaffirmed the judiciary's role as a check and a balance, as the Constitution intends, on power grabs by the executive branch. The Court ruled that the Bush administration's assertion that the President can hold suspects incommunicado, indefinitely and without charge, is as arrogant as are its legal arguments that the President can authorize torture. No President is above the law or the Constitution. The Court properly rejected the administration's plea to `just trust us' and repudiated its assertion of unchecked power. This Senate and in particular the Judiciary Committee continues to fall short in its oversight responsibilities. President Bush has said he wants the whole truth, but he and his administration instead have circled the wagons to forestall adequate oversight. The President must order all relevant agencies to release the memos from which these policies were devised. There needs to be a thorough, independent investigation of the actions of those involved, from the people who committed abuses, to the officials who set these policies in motion. Only when these actions are taken will we begin to heal the damage that has been done. We need to get to the bottom of this scandal if we are to play our proper role in improving security for all Americans, both here at home and around the world.

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to address a recent court decision that has exposed America's e-mails to snooping and invasive practices. The 2-to-1 decision by the First Circuit Court of Appeals in a case called United States v. Councilman has dealt a serious blow to online privacy. The majority--both, Republican-appointed judges--effectively concluded that it was permissible for an Internet Service Provider to comb through its customers' emails for corporate gain. If allowed to stand, this decision threatens to eviscerate Congress's careful efforts to ensure that privacy is protected in the modern information age. The indictment in Councilman charged the defendant ISP with violating the Federal Wiretap Act by systematically intercepting, copying, and then reading its customers' incoming emails to learn about its competitors and gain a commercial advantage. This is precisely the type of behavior that Congress wanted to prohibit when it updated the Wiretap Act in 1986, as part of the Electronic Communications Privacy Act (ECPA), to prohibit unauthorized interceptions of electronic communications. Congress's goal was to ensure that Americans enjoyed the same amount of privacy in their online communications as they did in the offline world. Just as eavesdroppers were not allowed to tap phones or plant ``bugs'' in order to listen in on our private conversations, we wanted to ensure that unauthorized eyes were not peering indiscriminately into our electronic communications. 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 turned this distinction on its head. Functionally, the ISP in this case was intercepting emails as they were being delivered, yet the majority ruled that the relevant rules were those pertaining to stored communications, which do not apply to ISPs. The majority rejected the Government's argument that an intercept occurs--and the Wiretap Act applies--when an email is acquired contemporaneously with its transmission, regardless of whether the transmission may have been in electronic storage for milliseconds at the time of the acquisition. As the dissenting judge found, the Government's interpretation of the Wiretap Act is consistent with Congressional intent and with the realities of electronic communication systems. I agree, and urge the Justice Department to continue to press this position in the courts. The Department has been a powerful proponent of privacy rights in this case, and I commend its efforts. I also will be taking a close look at possible changes to the law to ensure that there is no room to skirt the wiretap provisions and engage in the type of privacy violation at issue in the Councilman case. We have an obligation to ensure that our laws keep up with technology, and it may be that advances in communications warrant change. It is imperative that we continue to safeguard privacy adequately in our modern information age. In a world where Americans are already inundated with targeted mass marketing and mailings, the Councilman decision opens the door to even more invasive activity. With this kind of precedent, ISPs need not offer free services in exchange for reduced online privacy. They could simply snoop in secret, and their unsuspecting customers would never know. The Councilman decision also opens the door to Government over- reaching. For practical reasons, surveillance devices are often installed at the point of millisecond-long temporary storage prior to an e-mail's arrival at its final destination. To date, law enforcement agencies have treated this as what it is--an interception--and have sought appropriate wiretap approval. But this decision allows law enforcement agents to potentially skip the rigors of the wiretap laws, and perhaps could unleash unrestrained use of search programs like Carnivore. This outcome belies the realities of electronic communications in today's society, undercuts Congress' intent, and is inconsistent with the current approach to such communications in law enforcement practice. The Councilman decision creates an instant and enormous gap in privacy protection for email communications, and we need to address it swiftly and responsibly. I urge my colleagues to make this a top priority as we finish up the session. I ask unanimous consent to have printed in the Record four recent editorials and articles on this issue.

Mr. LEAHY

Mr. LEAHY. Following me.

Mr. LEAHY. I can't imagine I will speak much more than probably 10, 15 minutes at most.

Mr. LEAHY

Mr. LEAHY. Madam President, there is another important issue we have before the Senate. We don't yet have a Federal budget resolution, even though we were supposed to have done that this spring. It is July. We have considered only one appropriations bill, and that has not been resolved with the House. We have not yet even considered the other 12 appropriations bills, including the Homeland Security appropriations bill. These are usually considered must-pass legislation, whether there is a Republican-controlled Congress or a Democratic-controlled Congress. Instead of passing these bills, however, we sit around not doing any work on the things that we absolutely need to do. We are working on political matters. The divisive constitutional amendment to federalize marriage is an example of that. For 215 years, we have left it up to States to define marriage. All of a sudden, are we going to tell them they do not know what they are doing? Are we going to take over the marriage issue from the States and define it for them? Are we going to treat this as a matter of urgency, that we must proceed to immediately while setting aside homeland security and the budget? Heck, the Senate Judiciary Committee, which held a few hearings on this issue, has not even considered the language of this Federal Marriage Amendment. We have not even voted on it in the Republican- controlled Judiciary Committee. The fact that the Committee has been bypassed, and the FMA brought immediately to the Senate floor, is an unmistakable sign that political expediency--and haste in the furtherance of political expediency--is why it is here. Political expediency, whatever it takes, seems to be the leadership's guidepost, not the pressing needs of the country for homeland security funding or a budget. I am afraid that the paramount thing for the Republican leaders in this body at the moment are such divisive matters as federalizing marriage law by constitutional amendment. I remember the days when the Republican Party would say we are going to keep the Federal Government out of the doings of the States. Well, now we seem not only to politicize judicial nominations, making independent judges a wing of the Republican Party, but to politicize the Constitution itself. I think it is wrong. I think it is corrosive to seek partisan advantage at the expense of the independent Federal judiciary or our national charter, the Constitution. Maybe we should have a corollary to the Thurmond rule, which is that in Presidential elections, after the Fourth of July we do not consider judicial nominations, except by unanimous consent. Maybe we should have something called the ``Durbin rule.'' The senior Senator from Illinois observed that we should prohibit consideration of constitutional amendments within 6 months of a Presidential election. I think he is right in pointing out that the Constitution is too important to be made a bulletin board for campaign sloganeering. Somehow we should find a way to restrain the impulse of some to politicize the Constitution. I think we have 50 or 60 proposed constitutional amendments before the Congress right now. While we are doing this political posturing, let us talk about what we might have been doing. I will take one issue, homeland security. This week, we received further warnings from the Republican administration about impending terrorist attacks. So what are we doing in the Senate to respond to those attacks? Why, we are going to launch a debate over gay marriage. The Homeland Security appropriations bill is stalled, but notwithstanding the warnings by the administration that there are impending terrorist attacks, first and foremost the Senate has to have a constitutional amendment banning gay marriage. We cannot take time to bring up the Homeland Security bill, something that will probably pass in a day and a half. If the American people are uneasy about their security during the summer traveling season, that may be because of the conflicting signals they are receiving from the Government. At least this time it was Secretary Ridge and not the Attorney General who appeared on our Nation's television screens to warn of an impending al-Qaida attack. We may remember a few weeks ago, when the Attorney General made dire warnings the same day that Secretary Ridge, the Secretary of Homeland Security, told Americans to go out and have some fun this summer. The American people must wonder what is going on. They must find it hard to believe what is going on in this Senate, how we are using our time now. I believe Congress should get on with providing the funding needed to address our security vulnerabilities, even at the cost of forsaking some of the President's tax cuts or a fruitless debate on marriage. We have heard the administration say we are in dire danger. We have given them everything they have wanted: the Homeland Security Department; we have gone deep into debt; we have actually threatened the Social Security fund by our huge deficits to give hundreds of billions of dollars on the fight against terrorism. It appears we simply cannot meet our needs with the resources we have available. But what do we do? Do we address this in the Senate, the greatest deliberative body on Earth? Heck, no. We are going to talk about gay marriages. Of course, the Republican Leadership has a history of not getting too concerned about the substance of homeland security issues. The issue of homeland security has been politicized from the start, and even the creation of the Department of Homeland Security is a case study on the political partisanship of my friends in the Republican Party. We may recall that at first they resisted strongly the idea of having a Department of Homeland Security especially the President himself. Then we heard the partisan attacks from many Republicans on the 9/11 Commission, which the administration allowed to go forward in the first place only after great resistance. I hope and pray we can return to a time as we used to do, and as it was when I came to the Senate, when security issues were not used for partisan effect or political benefit. Given the track record of this administration for secrecy, unilateralism, overreaching, and abject partisanship, however, I certainly understand why many question their assertions. An administration that can hide legal memoranda justifying torture and then, when forced to acknowledge them, disavow them, does not earn our trust. An administration that reports that terrorism had decreased last year and then, when questioned, had to admit that it was wrong and reissue the report has basic credibility problems. So I wish we would turn away from these divisive legislative maneuvers and work together on the Nation's agenda. The senior member of the Senate, Senator Byrd, said it all better than I can. He spoke yesterday afternoon about the need to get about our business and the Nation's business. Senator Byrd offered wise counsel to the Republican leadership. I wish it had been listened to. Roll Call reported earlier this week that this week's activities amount to a showdown prompted by the Republicans' desire for a wedge issue they can use with undecided voters in November. That is a shame and a sham. When we should be considering measures to strengthen homeland security, Republican partisans are focused on devising wedge issues for partisan political purposes. Well, that is wrong. I urge the Republican administration and the Republican leaders in the House and the Senate to come back to the work of Congress, not the work of political partisans. Let us complete our work for the American people. The Senate does not have to be a battlefront for the Presidential campaign. There is plenty of time for that. In fact, I wonder if we are not setting ourselves up for people to say during the election season that the Republican-controlled Congress did not do the work of the people. Let us get on with doing it. One of the first things we can do is take the stalled Homeland Security appropriations bill and actually vote on it. If the hundreds of billions of dollars we have spent so far have not made us safe, then let us debate that and find what will. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am struck by the way the Republican majority is managing the Senate. I have noted that we do not yet have a Federal budget resolution. It is July and we have as yet considered only one appropriations bill, and that one bill still has to be resolved with the House. We have yet even to consider the other 12 appropriations bills that are normally regarded as ``must pass'' legislation--that is unless Republicans intend to shut the Government down, again. Instead, the Republican majority has apparently decided to devote the July work period to partisan political matters. We are reading press accounts about Republicans maneuvering to bring the divisive constitutional amendment to federalize marriage to this floor for debate. The Senate Judiciary Committee has held a few hearings on this issue but has yet to consider language of a proposed constitutional amendment. Bypassing the committee of jurisdiction to bring this or any constitutional amendment to the Senate floor is an unmistakable sign that political expediency and haste, in the furtherance of political expediency, are the guiding principles for the Republican majority in scheduling the Senate's time. Political expediency--whatever it takes-- is their guidepost, not the pressing needs of the country to act on a budget or on the annual appropriations bills. Paramount to Republican leaders at the moment are such matters as the divisive, hot-button topic of federalizing marriage law, by constitutional amendment. Republican partisans seem intent on politicizing not only judicial nominations but also the Constitution itself during this election cycle. Democrats fulfilled our commitment to the White House when we considered the 25th judicial nomination that was part of our arrangement this year. I read that Republicans will now insist on devoting a good portion of the Senate's remaining time to the most divisive and contentious of the President's judicial nominees. They are intent on following the advice of the Washington Times editorial page to, they believe, make Democrats look bad, when in fact it is the President who is seeking to make judicial confirmations a partisan political issue. Democrats have cooperated in confirming almost 200 judges already. That is more than the total confirmed in President Clinton's last term, the President's father's presidency or in President Reagan's first term. Federal judicial vacancies have been reduced to their lowest level in decades. It is wrong and it is corrosive to seek partisan advantage at the expense of the independent Federal judiciary or our national charter, the Constitution. I wonder in Presidential election years whether we should not have a corollary to the ``Thurmond Rule'' on judicial nominations that we could call the ``Durbin Rule.'' The astute Senator from Illinois recently observed that we should prohibit consideration of constitutional amendments within 6 months of a Presidential election. He is right in pointing out that the Constitution is too important to be made a bulletin board for campaign sloganeering. We should find a way to restrain the impulse of some to politicize the Constitution. This week the Republican leadership has stalled action for days on any legislation as it resists amendments to the class action legislation from both Democratic and Republican Senators. The Republican leadership's handling of this bill is a prescription for nonaction, not for legislative movement forward. Just yesterday Roll Call published an insightful editorial lamenting what it called the ``Big Mess Ahead.'' I think we may already be stuck in that big mess. The editorial noted that ``July should be appropriations month in the Senate.'' I agree. This traditionally has been when we were focused on getting our work done and making sure the funding for the various functions of the Federal Government were appropriated by the Congress, in fulfilling Congress's responsibilities and its power of the purse. Not this year. Roll Call observes that ``the second session of the 108th Congress is poised to accomplish nothing.'' The way things are going, under Republican leadership, this session will make the ``do-nothing'' Congress against which President Harry Truman ran seem like a legislative juggernaut by comparison. I ask unanimous consent that the July 7, 2004, Roll Call editorial be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am introducing a bill, the Anti- Phishing Act of 2004, that targets a large and growing class of crime that is spreading across the Internet. Phishing is a rapidly growing class of identity theft scams on the Internet that is causing both short-term losses and long-term economic damage. In the short-term, these scams defraud individuals and financial institutions. Some estimates place the cost of phishing at over two billion dollars just over the last 12 months. In the long run, phishing undermines the Internet itself. By making consumers uncertain about the integrity of the Internet's complex addressing system, phishing threatens to make us all less likely to use the Internet for secure transactions. If you can't trust where you are on the web, you are less likely to use it for commerce and communications. Phishing is spelled ``P-H-I-S-H-I-N-G.'' Those well-versed in popular culture may guess that it was named after the phenomenally popular Vermont band, Phish. But phishing over the Internet was in fact named from the sport of fishing, as an analogy for its technique of luring Internet prey with convincing email bait. The ``F'' is replaced by a ``P-H'' in keeping with a computer hacker tradition. Phishing attacks usually start with emails that are, in Internet jargon, ``spoofed.'' That is, they are made to appear to be coming from some trusted financial institution or commercial entity. The spoofed email usually asks the victim to go to a website to confirm or renew private account information. These emails offer a link that appears to take the victim to the website of the trusted institution. In fact the link takes the victim to a sham website that is visually identical to that of the trusted institution, but is in fact run by the criminal. When the victim takes the bait and sends their account information, the criminal uses it--sometimes within minutes--to transfer the victim's funds or to make purchases. Phishers are the new con artists of cyberspace. To give an idea of how easy it is to be fooled, we have reproduced some recent phishing charts, with the help of the Anti-Phishing Working Group. These are just two examples of a problem that affects countless companies. The website on the right is an actual website of MBNA, a well-established financial institution and credit card issuer. On the left is a recently discovered phishing site that mimicked the MBNA site. As you can see, the two websites are practically identical. Both have the MBNA logo, and both have the same graphics, in the same layout. But if you end up going to the website on the left, when you enter your account information, you are giving it to an identity thief. As another example, the next two websites both appear to be from eBay. Again, the one on the right is from the genuine website. The one on the left is a fake website that is controlled by a phisher. As you can see, if you end up at the website on the left, it would be next to impossible to know that you are not at the real eBay website. Informed Internet users can avoid this problem if they simply use their web browser to go to the website, instead of using a link sent to them in an email, but far too many people do not do this. This is a growing problem. Phishing is on the rise. In recent months there has been an explosion of these types of attacks. As you can see from the next chart, these attacks are growing at an alarming rate. Roughly one million Americans already have been victims of phishing attacks. And phishing attacks are increasingly sophisticated. Early phishing attacks were by novices, but there is evidence now that some attacks are backed by organized crime. And some attacks these days include spyware, which is software that is secretly installed on the victim's computer, which waits to capture account information when the victim even goes to legitimate websites. Phishers also have become more sophisticated in how they cast their huge volumes of email bait on the Internet waters. Security experts recently discovered that vast networks of home computers are being hijacked by hackers using viruses, and then they are rented to phishers--all without the knowledge of the owners of these home computers. Some phishers can be prosecuted under wire fraud or identity theft statutes, but often these prosecutions take place only after someone has been defrauded. Moreover, the mere threat of phishing attacks undermines everyone's confidence in the Internet. When people cannot trust that websites are what they appear to be, they will not use the Internet for their secure transactions. So traditional wire fraud and identity theft statutes are not sufficient to respond to phishing. The Anti-Phishing Act of 2004 protects the integrity of the Internet in two ways. First, it criminalizes the bait. It makes it illegal to knowingly send out spoofed email that links to sham websites, with the intention of committing a crime. Second, it criminalizes the sham websites that are the true scene of the crime. It makes it illegal to knowingly create or procure a website that purports to be a legitimate online business, with the intent of collecting information for some criminal purpose. There are important First Amendment concerns to be protected. The Anti-Phishing Act protects parodies and political speech from being prosecuted as Phishing. We have worked closely with various public interest organizations to ensure that the Anti-Phishing Act does not impinge on the important democratic role that the Internet plays. To many Americans, phishing is a new word. It certainly is a new form of an old crime. It also is a serious crime, and we need to act aggressively to keep phishing from infecting the Internet and from eroding the public's trust in online commerce and communication. I look forward to working with others in the Senate in addressing this growing threat to the Internet, with effective and responsible action. Again, this is called the Anti-Phishing Act. It targets a large and growing class of crime that is spreading across the Internet. Phishing is a rapidly growing class of identity theft scams. It causes both short-term losses, but long-term economic problems. In the short-term, these scams defraud individuals and financial institutions. To give some idea that this is not a minor matter, some estimates place the cost of phishing at over $2 billion over the last 12 months. You can imagine the outcry in this country if they said we had $2 billion worth of bank robberies in that same period of time. But it is not only the economic loss that undermines the Internet itself; it makes consumers uncertain about the integrity of the Internet's complex addressing system. It makes us all less apt to use it for commerce and communication, because if you cannot trust where you are on the Web, you are not going to use it for commerce or communication. Incidentally, fishing is spelled P-H-I-S-H-I-N-G. Those who are well versed in popular culture might think it was named after the phenomenally popular Vermont band called Phish. But phishing over the Internet was named for the sport of fishing, as an analogy for its technique of luring Internet prey with a convincing e-mail bait. The ``F' was replaced by ``PH'' in keeping with computer hacker tradition. Phishing usually starts with e-mails that are, in Internet jargon, ``spoofed.'' They appear to come from some trusted commercial entity or financial institution. The spoofed e-mail asks the victim to go to a Web site and confirm their identity, in effect, their Social Security number, credit card numbers, and so on. What it does is, the victim thinks they are going to a trusted institution, perhaps one they have dealt with for years. Instead, it takes them to a sham Web site that is visually identical to that of the trusted institution, but it is run by a criminal. When the victim takes the bait, when they send their account information, of course, the criminal uses it. Sometimes they use it within minutes. They can transfer the victim's funds or make purchases. These phishers are new con artists of cyberspace. I will give you an idea of how easy it is to do it. Here on this chart we have the genuine Web site. We actually had to mark them as ``genuine Web site'' and ``fake Web site'' because they look so identical. I am a heavy user of the Internet, and I could not tell them apart. On the other side, of course, is the fake Web site. They both have the MBNA logo. That is a trusted financial institution. They have the same graphic layout. Suppose you were a customer of MBNA and they asked you to put your user name in, your password, and so on, and you go on there and they would continue to ask information. You would have given up your account number, whatever ID number you use, and it could be 20 minutes later, when you go on the right site and you want to withdraw some money or make a cash transfer, you may find it is all gone in that short time. In fact, we also have a chart for eBay. I wasn't going to show it, but it is worthwhile, I think. We will show the two from eBay. Again, I have had them marked ``genuine Web site'' and ``fake Web site.'' Here is the genuine one. For those who use PayPal, it is increasingly used if you are using eBay. Anybody who has done that is well aware of PayPal. It is something you could be safe with, you know where your money is going, you know who is handling it, and you know you are going to get paid for something you might have sold. Look what we have here. When you look at it, it is hard to tell the difference. Of course, the internal address is different. What do you do? You send money, you pay money, you are supposed to receive money. You are not going to do it. Somebody else is going to do it and they are going to walk off not only with your money but with your trust of the Internet. That is why it is important that we do this, that we have some way of criminalizing this. We have in every one of our States businesses that thrive and survive because they can use the Internet. This is trying to stop them. Again, we must address this growing threat to Internet users.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am introducing a bill, the Anti- Phishing Act of 2004, that targets a large and growing class of crime that is spreading across the Internet. Phishing is a rapidly growing class of identity theft scams on the Internet that is causing both short-term losses and long-term economic damage. In the short-term, these scams defraud individuals and financial institutions. Some estimates place the cost of phishing at over two billion dollars just over the last 12 months. In the long run, phishing undermines the Internet itself. By making consumers uncertain about the integrity of the Internet's complex addressing system, phishing threatens to make us all less likely to use the Internet for secure transactions. If you can't trust where you are on the web, you are less likely to use it for commerce and communications. Phishing is spelled ``P-H-I-S-H-I-N-G.'' Those well-versed in popular culture may guess that it was named after the phenomenally popular Vermont band, Phish. But phishing over the Internet was in fact named from the sport of fishing, as an analogy for its technique of luring Internet prey with convincing email bait. The ``F'' is replaced by a ``P-H'' in keeping with a computer hacker tradition. Phishing attacks usually start with emails that are, in Internet jargon, ``spoofed.'' That is, they are made to appear to be coming from some trusted financial institution or commercial entity. The spoofed email usually asks the victim to go to a website to confirm or renew private account information. These emails offer a link that appears to take the victim to the website of the trusted institution. In fact the link takes the victim to a sham website that is visually identical to that of the trusted institution, but is in fact run by the criminal. When the victim takes the bait and sends their account information, the criminal uses it--sometimes within minutes--to transfer the victim's funds or to make purchases. Phishers are the new con artists of cyberspace. To give an idea of how easy it is to be fooled, we have reproduced some recent phishing charts, with the help of the Anti-Phishing Working Group. These are just two examples of a problem that affects countless companies. The website on the right is an actual website of MBNA, a well-established financial institution and credit card issuer. On the left is a recently discovered phishing site that mimicked the MBNA site. As you can see, the two websites are practically identical. Both have the MBNA logo, and both have the same graphics, in the same layout. But if you end up going to the website on the left, when you enter your account information, you are giving it to an identity thief. As another example, the next two websites both appear to be from eBay. Again, the one on the right is from the genuine website. The one on the left is a fake website that is controlled by a phisher. As you can see, if you end up at the website on the left, it would be next to impossible to know that you are not at the real eBay website. Informed Internet users can avoid this problem if they simply use their web browser to go to the website, instead of using a link sent to them in an email, but far too many people do not do this. This is a growing problem. Phishing is on the rise. In recent months there has been an explosion of these types of attacks. As you can see from the next chart, these attacks are growing at an alarming rate. Roughly one million Americans already have been victims of phishing attacks. And phishing attacks are increasingly sophisticated. Early phishing attacks were by novices, but there is evidence now that some attacks are backed by organized crime. And some attacks these days include spyware, which is software that is secretly installed on the victim's computer, which waits to capture account information when the victim even goes to legitimate websites. Phishers also have become more sophisticated in how they cast their huge volumes of email bait on the Internet waters. Security experts recently discovered that vast networks of home computers are being hijacked by hackers using viruses, and then they are rented to phishers--all without the knowledge of the owners of these home computers. Some phishers can be prosecuted under wire fraud or identity theft statutes, but often these prosecutions take place only after someone has been defrauded. Moreover, the mere threat of phishing attacks undermines everyone's confidence in the Internet. When people cannot trust that websites are what they appear to be, they will not use the Internet for their secure transactions. So traditional wire fraud and identity theft statutes are not sufficient to respond to phishing. The Anti-Phishing Act of 2004 protects the integrity of the Internet in two ways. First, it criminalizes the bait. It makes it illegal to knowingly send out spoofed email that links to sham websites, with the intention of committing a crime. Second, it criminalizes the sham websites that are the true scene of the crime. It makes it illegal to knowingly create or procure a website that purports to be a legitimate online business, with the intent of collecting information for some criminal purpose. There are important First Amendment concerns to be protected. The Anti-Phishing Act protects parodies and political speech from being prosecuted as Phishing. We have worked closely with various public interest organizations to ensure that the Anti-Phishing Act does not impinge on the important democratic role that the Internet plays. To many Americans, phishing is a new word. It certainly is a new form of an old crime. It also is a serious crime, and we need to act aggressively to keep phishing from infecting the Internet and from eroding the public's trust in online commerce and communication. I look forward to working with others in the Senate in addressing this growing threat to the Internet, with effective and responsible action. Again, this is called the Anti-Phishing Act. It targets a large and growing class of crime that is spreading across the Internet. Phishing is a rapidly growing class of identity theft scams. It causes both short-term losses, but long-term economic problems. In the short-term, these scams defraud individuals and financial institutions. To give some idea that this is not a minor matter, some estimates place the cost of phishing at over $2 billion over the last 12 months. You can imagine the outcry in this country if they said we had $2 billion worth of bank robberies in that same period of time. But it is not only the economic loss that undermines the Internet itself; it makes consumers uncertain about the integrity of the Internet's complex addressing system. It makes us all less apt to use it for commerce and communication, because if you cannot trust where you are on the Web, you are not going to use it for commerce or communication. Incidentally, fishing is spelled P-H-I-S-H-I-N-G. Those who are well versed in popular culture might think it was named after the phenomenally popular Vermont band called Phish. But phishing over the Internet was named for the sport of fishing, as an analogy for its technique of luring Internet prey with a convincing e-mail bait. The ``F' was replaced by ``PH'' in keeping with computer hacker tradition. Phishing usually starts with e-mails that are, in Internet jargon, ``spoofed.'' They appear to come from some trusted commercial entity or financial institution. The spoofed e-mail asks the victim to go to a Web site and confirm their identity, in effect, their Social Security number, credit card numbers, and so on. What it does is, the victim thinks they are going to a trusted institution, perhaps one they have dealt with for years. Instead, it takes them to a sham Web site that is visually identical to that of the trusted institution, but it is run by a criminal. When the victim takes the bait, when they send their account information, of course, the criminal uses it. Sometimes they use it within minutes. They can transfer the victim's funds or make purchases. These phishers are new con artists of cyberspace. I will give you an idea of how easy it is to do it. Here on this chart we have the genuine Web site. We actually had to mark them as ``genuine Web site'' and ``fake Web site'' because they look so identical. I am a heavy user of the Internet, and I could not tell them apart. On the other side, of course, is the fake Web site. They both have the MBNA logo. That is a trusted financial institution. They have the same graphic layout. Suppose you were a customer of MBNA and they asked you to put your user name in, your password, and so on, and you go on there and they would continue to ask information. You would have given up your account number, whatever ID number you use, and it could be 20 minutes later, when you go on the right site and you want to withdraw some money or make a cash transfer, you may find it is all gone in that short time. In fact, we also have a chart for eBay. I wasn't going to show it, but it is worthwhile, I think. We will show the two from eBay. Again, I have had them marked ``genuine Web site'' and ``fake Web site.'' Here is the genuine one. For those who use PayPal, it is increasingly used if you are using eBay. Anybody who has done that is well aware of PayPal. It is something you could be safe with, you know where your money is going, you know who is handling it, and you know you are going to get paid for something you might have sold. Look what we have here. When you look at it, it is hard to tell the difference. Of course, the internal address is different. What do you do? You send money, you pay money, you are supposed to receive money. You are not going to do it. Somebody else is going to do it and they are going to walk off not only with your money but with your trust of the Internet. That is why it is important that we do this, that we have some way of criminalizing this. We have in every one of our States businesses that thrive and survive because they can use the Internet. This is trying to stop them. Again, we must address this growing threat to Internet users.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to introduce a bill to designate the recently-constructed annex to the E. Barrett Prettyman United States Courthouse in Washington, DC as the ``William B. Bryant Annex.'' Thomas F. Hogan, this Court's current Chief Judge, has expressed his support and the unanimous support of the other judges on the District Court for the District of Columbia. I am proud to join with Congresswoman Eleanor Holmes Norton in moving ahead with the Chief Judge's request. Judge Bryant served with distinction of the U.S. District Court for the District of Columbia since 1965. He was the Chief Judge on that court from March 1977 to September 1981. Judge Bryant graduated from Howard University in 1932, and from Howard University Law School, receiving an LL.B. in 1936. Judge Bryant's lengthy public service career is one of great distinction. In addition to the time he spent on the Federal bench, Judge Bryant served in the United States Army during World War II and as an Assistant U.S. Attorney for the District of Columbia. After serving four and one half years as Chief Judge, Judge Bryant took senior status in January of 1982. Naming the new annex to the E. Barrett Prettyman courthouse after Judge Bryant would be a fitting tribute to this distinguished jurist. Much like Judge Prettyman, Judge Bryant had an illustrious career in public service and on the bench. I am honored to offer this legislation, and I urge my colleagues to join Congresswoman Norton and me in support of this well-deserved commendation.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to express my continued disappointment in the Republican leadership's ability to manage the Senate floor effectively. As my colleagues are aware, we have only a few weeks left in this legislative session. Instead of negotiating short-time agreements on a finite number of important amendments, the Republican leader has decided that he would rather slam the door shut for all nongermane amendments. The Republican leader's actions have frustrated Members on both sides of the aisle who sincerely want to have a productive legislative session. The citizens of this country did not elect us to engage in a staring contest. We should be using our remaining floor time to accomplish consensus legislation. I note that yesterday the Senior Senator from Idaho observed the following: We have watched an unusual process this morning. There are a good many of us in a bipartisan spirit who are reacting to and I am one of those who does not appreciate what the majority leader has now just done. Senator Daschle, who has frequently called for civility and bipartisan action on the floor, similarly expressed frustration. I could not agree with them more. Senators have a right to have their legislation be considered by their colleagues. And despite the majority leader's actions, even Senators in the minority should be allowed to offer amendments to the class action legislation before us. Senate Craig acknowledged as much when he ``recognized that Senators, unless effectively blocked by [the] procedural action that has just occurred, do have the right to offer amendments. Germane or relevant and non-relevant.'' Yesterday, the senior Senator from Idaho hoped to offer an amendment with wide bipartisan support that would help protect the security of our country. He should be allowed to offer this legislation. Similarly, other Members of this body should be allowed time for the normal amendment process. Time and again, the Republican leadership has accused my colleagues of obstructing and refusing to give certain measures an up-or-down vote. Well, this most recent procedural tactic is the majority leader's latest attempt at looking busy with full knowledge that nothing will be accomplished. Senator Frist's drastic action yesterday has stymied the legislative process and threatened the underlying class actions bill that many of my colleagues have worked so hard on over the past few years. I am disappointed that the Republican leadership has decided that we can afford to waste another week of floor time when bipartisan measures could have been considered and enacted. Mr. President, yesterday I received a letter on behalf of 16 environmental protection organizations--American Rivers, Clean Water Action, Defenders of Wildlife, Earthjustice, Earthworks, Environmental Working Group, Friends of the Earth, Greenpeace, League of Conservation Voters, National Environmental Trust, Natural Resources Defense Council, Sierra Club, The Ocean Conservancy, The Wilderness Society, 20/20 Vision, and the U.S. Public Interest Research Group--in opposition to this class action bill. These environmental protection advocates declare that this bill ``is patently unfair to citizens harmed by toxic spills, contaminated drinking water, polluted air and other environmental hazards involved in class action cases based on state environmental or public health laws.'' I ask unanimous consent that this letter be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, on August 15 in Coventry, VT, a beloved chapter in American music history will come to a close as the jam band Phish holds its final concert for legions of devoted ``phans'' and ``Phish-heads.'' We in Vermont are well known for our superb maple syrup, our wonderful ice cream, our award-winning cheese and our beautiful scenery, but after 21 remarkable years, the jam band Phish has certainly become one of our most famous exports. The four musicians of Phish--Trey Anastasio, Mike Gordon, Page O'Connell, and Jon Fishman--met and started playing together as undergraduates at the University of Vermont in the early 1980s. The band quickly moved beyond its humble beginnings in a dormitory basement to playing a small nightclub in Burlington called Nectar's. While they toured for 5 years before releasing any commercial albums, the buzz around the band spread as their striking melodies and lively jam sessions endeared them to a growing legion of fans. Phish released its first commercial album, Junta, in 1989. Since then, the band has put out more than 35 studio and live albums that have sold millions of copies. They have more than 200 original songs, and many of the songs die-hards love most were never recorded in the studio. But the magic of Phish is not as much in its studio recordings as it is in its live performances. In an era when slick marketing techniques often overshadow the musical accomplishments of the artists themselves, this talented band from Vermont has provided a refreshing contrast by promoting free spiritedness and individuality in their music. The band has always been unconcerned about releasing catchy singles and making millions of dollars from record sales. Instead they play long jams--oftentimes with songs lasting 30 minutes or longer--and tour year-round. Bucking a trend in the industry, they even encouraged people to tape their shows for free and trade them on the Internet. For the members of Phish, it really is all about their music and their fans. Every night on stage is a new and different showcase for the talents of the versatile and endlessly creative band members. Whether they are playing electric guitars, keyboards, drums, or vacuum cleaners, Phish's improvisational talent has never disappointed. Many fans--often referred to as ``Phish-heads''--follow the band from concert to concert living off veggie burritos, grilled cheese sandwiches and the charity of others. Through it all, Phish has always considered Vermont home. In a tribute to their Burlington roots, the band's first album produced with a major record company was titled A Picture of Nectar. And the band's share of proceeds from sales of the popular ``Phish Food'' Ben and Jerry's ice cream flavor goes directly toward environmental projects in Vermont's Lake Champlain Watershed. Now, as they prepare for their final show in Vermont, it is appropriate that they finish where they started. Though Phish has sold millions of albums and become a huge success, in spirit they remain a group that is unpretentious and unfailingly loyal to their fans. Their admirable generosity has fostered a sense of community among those who follow the group. The band's break-up is a source of sadness to all of us who know and love them. I congratulate Trey Anastasio, Mike Gordon, Jon Fishman and Page O'Connell on their remarkable success. I am grateful for all they have done for Vermont, for American music, and for their fans. Most importantly, we sincerely appreciate their authenticity, their enthusiasm and their generosity. While no one wants to see Phish stop playing after this summer, we can all take some solace that their music will live on, in these words from their song, ``Down With Disease.'' Waiting for the time when I can finally say That this has all been wonderful, but now I'm on my way. But when I think it's time to leave it all behind, I try to find a way, but there's nothing I can say to make it stop.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to introduce a bill to designate the recently-constructed annex to the E. Barrett Prettyman United States Courthouse in Washington, DC as the ``William B. Bryant Annex.'' Thomas F. Hogan, this Court's current Chief Judge, has expressed his support and the unanimous support of the other judges on the District Court for the District of Columbia. I am proud to join with Congresswoman Eleanor Holmes Norton in moving ahead with the Chief Judge's request. Judge Bryant served with distinction of the U.S. District Court for the District of Columbia since 1965. He was the Chief Judge on that court from March 1977 to September 1981. Judge Bryant graduated from Howard University in 1932, and from Howard University Law School, receiving an LL.B. in 1936. Judge Bryant's lengthy public service career is one of great distinction. In addition to the time he spent on the Federal bench, Judge Bryant served in the United States Army during World War II and as an Assistant U.S. Attorney for the District of Columbia. After serving four and one half years as Chief Judge, Judge Bryant took senior status in January of 1982. Naming the new annex to the E. Barrett Prettyman courthouse after Judge Bryant would be a fitting tribute to this distinguished jurist. Much like Judge Prettyman, Judge Bryant had an illustrious career in public service and on the bench. I am honored to offer this legislation, and I urge my colleagues to join Congresswoman Norton and me in support of this well-deserved commendation.

Mr. LEAHY

Mr. LEAHY. Mr. President, today President Bush is holding a private fundraiser in North Carolina and complaining about the few judicial nominees who have not been given hearings by the Republican-led Senate, when he should be commending the Senate for confirming nearly 200 of his judicial nominees. One-hundred-ninety-eight of his judicial nominees have been confirmed. This number of confirmations is higher than the number of judicial nominees confirmed during President Reagan's first term, during the President's father's Presidency, and during the final term of President Clinton. With these confirmations, there are only 26 vacant seats in the entire Federal judiciary, which is the lowest level since the Reagan administration. Senate Republicans more than doubled circuit court vacancies and raised overall federal court vacancies to more than 100 from 1995 through early 2001. Vacancies have been greatly reduced with Democratic cooperation during the last 4 years. Vacancies have been cut by more than 75 percent and judicial emergency vacancies have been cut by more than 60 percent from what they were. During the 1996 session, when President Clinton was seeking a second term, Republicans allowed only 17 of his judicial nominees to be confirmed all year and blocked all of his circuit court nominees from being confirmed. This year, the Senate has confirmed 29 of President Bush's judicial nominees, including five circuit court nominees. Democrats have acted with bipartisanship toward the judicial nomination process and supported the confirmation of this historic number of judicial nominees of this Republican president. During the 17 months of Democratic control of the Senate, 100 of President Bush's judicial nominees were confirmed. Republicans had blocked the confirmation of more than 60 of President Clinton's judicial nominees, including nearly two dozen to the circuit courts. The situation in North Carolina illustrates this history of Republican obstruction and the Bush administration's determination to try to pack the courts. During the Clinton administration, four nominees from North Carolina to the Fourth Circuit were blocked by Republican Senators, and they never got a hearing or a vote. U.S. District Court Judge James Beaty would have become the Fourth Circuit's first African-American jurist. According to The Charlotte Observer of March 8, 1996: He is an excellent judge, partly because of admirable qualities that make him an ideal candidate for judging others. He rose from humble circumstances and eventually graduate from the UNC-Chapel Hill School of Law. Admirers say he is an ideal judge and citizen: even-tempered, hard- working, fair, serious, intelligent and unfailingly polite. Judge Beaty never got a hearing or a vote from Republicans in 1995, 1996, 1997, or 1998. U.S. Bankruptcy Judge J. Richard Leonard also never got a hearing or a vote in 1995 or 1996 on his nomination to the Fourth Circuit, nor did Republicans give him a vote in 1999 or 2000 in his nomination to the District Court in North Carolina. North Carolina Court of Appeals Judge James Wynn never got a hearing or a vote on his nomination in 1999, 2000, or 2001. Had Judge Wynn been confirmed he would have been the first African American to sit on the Fourth Circuit. Law Professor Elizabeth Gibson also did not get a hearing or a vote. During Republican control of the Senate, no nominee from North Carolina to the Fourth Circuit was allowed to be confirmed during the entire Clinton administration. It is ironic that Republicans now claim that Judge Boyle must be confirmed because the seat is considered a judicial emergency by the Administrative Office of the U.S. Courts, when the North Carolina vacancies on the Fourth Circuit were considered judicial emergencies years ago when Republicans blocked Clinton nominee after Clinton nominee. During the Clinton administration, Republicans argued that these vacancies did not need to be filled because the Fourth Circuit had the fastest docket time to disposition in the country, a distinction it still holds. After three confirmations for Bush nominees to that court, including Judge Duncan, the Fourth Circuit has fewer vacancies today--three--than it did when Republicans claimed no more judges were needed--5 vacancies. Republicans used every argument they could muster to stop Democratic nominees from being confirmed to the Fourth Circuit, particularly in North Carolina, and now they flip flop to claim that Republican nominees must be confirmed. When Senator John Edwards was elected, he sought out the middle ground on judicial nominations, after years of North Carolina nominees being blocked by Republicans. For example, he should be commended for working with the President on the nomination of Judge Allyson Duncan, an African-American women who had served as the President of the North Carolina Bar Association, for a seat on the Fourth Circuit. Senator Edwards fully supported her confirmation. She was a Republican who had testified in favor of Clarence Thomas' confirmation, but she had a reputation of fairness. With Senator Edwards' support, Judge Duncan was confirmed. He broke through the Republican logjam in this circuit. Senator Edwards also acted with bipartisanship in supporting the confirmation of two Bush nominees to the district court, Judge Brent McKnight and Judge Louise Flanagan. Senator Edwards has sought out compromise with his fellow North Carolina Senators on judicial nominations, but they have, by and large, refused to help find a middle ground. He has supported the proposal of the North Carolina Bar Association that the State establish a bipartisan merit selection commission to propose nominees to the President, Republican or Democratic, to create a long-term solution to impasses that are created by any Senator's insistence on his choice alone, with no compromise, for these lifetime seats of trust on the Federal bench. Unlike President Bush, Senator Edwards understands what it means in reality to be a uniter and not a divider. He comes from a part of the country that understands deeply how important it is that leaders seek to unite people across racial, economic and political lines rather than to divide them. Senator Edwards has stood up to efforts by this President to pack the courts with people whose records do not demonstrate that they will be fair judges to all who come before them, rich or poor, Democrats or Republicans, or any race or background. He has expressed concerns about Bush nominees Judge Boyle as well as James Dever, a 40-year-old Federalist Society member and Republican Party activist. President Bush has repeatedly claimed that he is opposed to judicial activism while he has simultaneously nominated activists for judicial positions. He would not support the confirmation or recess appointment of a judicial nominee who violated judicial ethics to reduce the sentence of a convicted cross burner, as President Bush did over the holiday celebrating the birth of Dr. Martin Luther King. Senator Edwards opposed other Bush judicial nominees whose record demonstrate insensitivity or hostility toward the civil rights and the blessings of liberty guaranteed to all Americans. Just yesterday, President Bush nominated Keith Starrett to the vacancy created by Judge Pickering's recess appointment and by his resignation from the district court. This nomination shows again the President's insensitivity to the wishes of so many in the South District of Mississippi by passing over qualified African-American candidates for that powerful district court seat. In act, this President has chosen narrow ideological purity over diversity by nominating more people involved with the Federalist Society than African Americans, Hispanics and Asian Americans combined. The biggest problem in the judicial nominations process is not with the Senate but with the White House. The judicial nominations process begins with the President, and President Bush has chosen to divide the Senate and the American people with his judicial nominations, instead of to unite us. The administration is intent on undermining the independence of the Federal judiciary and on making it a clone of the Republican Party. The President and his aides have shown the same unilateralism and arrogance to the Senate in their handling of judicial nominations that they have shown in so many other important policy areas. I commend Senator Edwards for breaking through the Republican logjam on appointments from North Carolina to the Court of Appeals for the Fourth Circuit. He has sought out the middle ground while also standing firm in his efforts to protect the right of the people to fair judges in our Federal courts. The American people deserve an independent judiciary with fair judges who will enforce their rights and uphold the law.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the Senate is taking up and passing today the Law Enforcement Officers Safety Act, H.R. 218, which was passed overwhelmingly by the House last month by voice vote. I have waited a long time to see this action taken. I want to pay special thanks to Congressman Randy ``Duke'' Cunningham, the author of this bill, and my good friend Senator Campbell, with whom I cosponsored the Senate companion bill, S. 253, for their leadership and fortitude while negotiating this legislation. Without their perseverance and commitment, passage of this bill would not have happened. In fact, Representative Cunningham has been tirelessly working for over a decade to push this legislation, and I commend him for his dedication to making our communities safer and providing better protection for our law enforcement personnel. During his time in the Senate, Senator Campbell has been a leader in the area of law enforcement and brings with him invaluable experience. As a former deputy sheriff, he knows the difficulties and dangers law enforcement officers face due to the patchwork of conceal-carry laws in State and local jurisdictions. He and I have worked together on several pieces of law enforcement legislation, such as the Bulletproof Vests Partnership Grant Acts of 1998, 2000 and 2003. It has been a privilege working with him on our bipartisan Law Enforcement Officers Safety Act. Law enforcement officers are never ``off-duty.'' They are dedicated public servants trained to uphold the law and keep the peace. To enable law enforcement officers nationwide to be prepared to answer a call to duty no matter where, when or in what form it comes, I am proud to join Senator Campbell and 69 other cosponsors, including Judiciary Chairman Hatch, Democratic Leader Daschle, Assistant Democratic Leader Reid, Majority Leader Frist and Assistant Majority Leader McConnell, on the Senate version of the Law Enforcement Officers Safety Act, S. 253, which was reported out of the Senate Judiciary Committee in March 2003 by a vote of 18 to 1. Both H.R. 218 and S. 253 will permit off-duty and retired law enforcement officers to carry a firearm and be prepared to assist in dangerous situations. These bills are strongly supported by the Fraternal Order of Police, FOP, the National Association of Police Organizations, NAPO, the Federal Law Enforcement Officers Association, FLEOA, the International Brotherhood of Police Officers, IBPO, the Law Enforcement Alliance of America, and the National Law Enforcement Council. I was honored to work closely on this measure with the former FOP national president, Lieutenant Steve Young, whose death last year was a sad loss for us all. Steve was dedicated to this legislation because he understood the importance of having law enforcement officers across the Nation armed and prepared whenever and wherever threats to our public safety arise. I have continued my close work with the FOP and current national president, Major Chuck Canterbury, to make this legislation law. Community policing and the outstanding work of so many law enforcement officers play a vital role in our crime control efforts. Unfortunately, during the past few years the downward trend in violent crime--specifically murder--ended and violent crime rates have turned upward. The FBI has reported that while preliminary numbers show that violent crime overall declined slightly in the first half of 2003, murders increased by 1.3 percent compared with the year before. There are more than 740,000 sworn law enforcement officers currently serving in the United States. Since the first recorded police death in 1792, there have been more than 17,200 law enforcement officers killed in the line of duty. Over 1,700 law enforcement officers died in the line of duty over the last decade, an average of 170 deaths per year. Roughly 5 percent of officers who die are killed while taking law enforcement action in an off-duty capacity. On average, more than 62,000 law enforcement officers are assaulted annually. The Law Enforcement Officers Safety Act creates a mechanism by which qualified active-duty law enforcement officers would be permitted to travel interstate with a firearm, subject to certain limitations, provided that officers are carrying their official badges and photographic identification. An active-duty officer may carry a concealed firearm under this measure if he or she is authorized to engage in or supervise any violation of law; is authorized to use a firearm by the agency, meets agency standards to regularly use a firearm; and is not prohibited from carrying by Federal, State or local law. This measure would not interfere with any officer's right to carry a concealed firearm on private or government property while on duty or on official business. Off-duty and retired officers should also be permitted to carry their firearms across State and other jurisdictional lines, at no cost to taxpayers, in order to better serve and protect our communities. H.R. 218 would permit qualified law enforcement officers and qualified retired law enforcement officers across the nation to carry concealed firearms in most situations. It preserves any State law that restricts concealed firearms on private property and any State law that restricts the possession of a firearm on State or local government property. To qualify for the measure's exemptions to permit a qualified off- duty law enforcement officer to carry a concealed firearm, notwithstanding the law of the State or political subdivision of the State, he or she must have authority to use a firearm by the law enforcement agency where he or she works; not be subject to any disciplinary action; satisfy every standard of the agency to regularly use a firearm; not be prohibited by Federal law from receiving a firearm; and carry a photo identification issued by the agency. The bill preserves any State law that restricts concealed firearms on private property, and any State law that restricts the possession of a firearm on State or local government property or park. For a retired law enforcement officer to qualify for exemption from State laws that prohibit the carrying of concealed firearms, he or she must have retired in good standing; have been qualified by the agency to carry or use a firearm; have been employed at least fifteen years as a law enforcement officer unless forced to retire due to a service- connected disability; have a non-forfeitable right to retirement plan benefits of the law enforcement agency; meet the same State firearms training and qualifications as an active officer; not be prohibited by Federal law from receiving a firearm; and be carrying a photo identification issued by the agency. Preserved would be any State law that permits restrictions of concealed firearms on private property, as well as any State law that restricts the possession of a firearm on State or local government property or park. Last month, during the House Judiciary Committee markup of H.R. 218, amendments were accepted to bar officers or retired police from carrying arms in other jurisdictions if they are under the influence of alcohol or other intoxicating or hallucinatory drug or substance, and to require retired police to have proof they received arms training in the previous year before being permitted to carry concealed weapons. The bill was then reported out of Committee by a vote of 23 to 9 and passed overwhelmingly by the House. Convicted criminals often have long and exacting memories. A law enforcement officer is a target in uniform and out, active or retired, on duty or off duty. The bipartisan Law Enforcement Officers Safety Act is designed to establish 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. I urge the Senate to take up and pass the bipartisan, commonsense Law Enforcement Officers Safety Act, H.R. 218, as amended and passed by the House, to make our communities safer and better to protect law enforcement officers and their families.

Mr. LEAHY

Mr. LEAHY. Mr. President, I yield myself such time as I may need. I welcome the distinguished Presiding Officer back from his break, and I hope he enjoyed his as much as I did, being in Vermont. In fact, I must say I hated to leave Vermont today; it was so nice. But as the Senate resumes our deliberations for this session, I would like to make note of some matters that occurred on this floor as we were adjourning for the recess. The Senate confirmed six more judicial nominees. That brings to 197 the total confirmations since President Bush took office. The distinguished Presiding Officer and others may recall, we only had one roll call vote on a judicial nominations that week. At the request of the distinguished majority leader, I agreed to have five judicial confirmation votes done by a voice vote. As often happens when we consider the judges by voice vote, I think the public, many Senators, and the press have little opportunity to take note of our actions or, as in this case, the extraordinary achievement. I say extraordinary because, when the Republicans controlled the Senate in the 1996 session, the last year of President Clinton's first term, they allowed only 17 judges to be confirmed that whole session and they refused to allow any circuit court nominees to be confirmed that entire time. If one Republican Senator objected, it was in effect a filibuster of the whole Republican caucus. They would not allow any circuit court nominees to go through during the 1996 session, not one. I mention that because that was the most recent year, besides this year, in which a President was seeking reelection. Of course, this year alone, by the end of June, we far exceeded the number of judicial nominees confirmed, including circuit judges, for this President. We confirmed 28 of President Bush's judicial nominees by the end of June, including 5 to the circuit courts. Again, I note that--notwithstanding the more than 60 judicial nominees who were blocked by the Republican leadership under President Clinton and the fact they allowed only 17 judges during the 1996 session in his reelection year, and not a single circuit court judge--we have so far confirmed 28 judicial nominees of President Bush, including 5 circuit court nominees. In fact, the Senate has confirmed nearly 200 judicial nominees of President Bush. In this Congress alone, the Senate has confirmed more Federal judges than were confirmed during the 2 full years, 1995 and 1996, when Republicans first controlled the Senate and President Clinton was in the White House. We also exceeded the 2-year total at the end of the Clinton administration when Republicans held the Senate majority in 1999 to 2000. While the Republican-controlled Senate, during its 25 months in the majority, has not confirmed quite as many as the 100 nominees the Democrat-led Senate confirmed in our 17 months, the total of 197 is still the fourth highest 4-year total in American history. I am actually saying this to compliment the work of my Republican colleagues for this Republican President. During their 25 months in the majority, 97 of the judicial nominees of President Bush have been confirmed. During the 17 months Democrats lead the Senate, we confirmed 100 judicial nominees of President Bush. In all, we have confirmed more lifetime appointees for this President than were allowed to be confirmed in the most recent 4-year Presidential term, that of President Clinton, from 1997 to 2000. We have actually confirmed more judicial nominees of this President than the first President Bush had confirmed by the Senate from 1989 through 1992, and we have confirmed more of President George W. Bush's judicial nominees than were confirmed during President Reagan's entire first term from 1981 through 1984, when he had a Republican majority in the Senate. One can't help but think that maybe if he had a Democratic majority part of the time he may have had even more confirmations. I would also note that the five circuit court nominees of President Bush confirmed this year are five more than Republicans allowed to be confirmed during President Clinton's reelection year. These may seem like just numbers, but I think Democratic Senators did what I said we would do when I became chairman of the committee: that we would work to lower the partisan divide by treating President Bush's judicial nominees more fairly than Republicans treated President Clinton's nominees, by working harder to fill vacancies in the federal courts. Under the leadership of Tom Daschle who at that time was the Senate majority leader, we confirmed 100 judicial nominees in 17 months, a much faster pace than the previous period of Republican control of the Senate. The number of Federal judicial vacancies for the whole country is only 27, the lowest it has been in decades. I mention that because when you look at the period from 1995 to 2001 when the Republicans controlled the Senate with the Democrats in the White House, vacancies on the federal courts reached over 100 and through systematic blocking of nearly two dozen circuit court nominees of President Clinton, circuit vacancies more than doubled. Despite additional retirements since then, after 197 judicial nominees of President Bush have been confirmed there are now little more than two dozen vacant seats left in the federal judiciary. A second development was the statement of the Democratic leader urging bipartisan communications and cooperation. Senator Daschle's proposal to seek a politics of common ground should be commended. It should be built upon by both sides. I think many Republican partisans treated Senator Daschle most unfairly during his years as the Democratic leader. It is a measure of that good man and a reflection of his understanding of the Senate that he has sought out common ground. It is a reflection of Senator Daschle's understanding and love for our system of Government that he disdains bitterness and rejects retaliation. Instead, he advocates counsel, cooperation, and respect. I commend my friend, the senior Senator from South Dakota, for that. Many in this Chamber might also recall that one of President Clinton's first acts upon reelection was to bestow the Presidential Medal of Freedom on his political opponent, Senator Bob Dole. I consider myself very fortunate to be one of the Senators who Senator Dole invited to the White House for that ceremony. I remember the grace shown both by Senator Dole and by President Clinton. We would also do well to remember Senator Bob Dole's address to Members of the Senate as part of the leadership series of speeches in the Old Senate Chamber. In that address, he observed the Senate should proceed through bipartisanship. Democrats have acted with bipartisanship toward judicial nominations and a record number of this President's judicial nominations have been confirmed. A few have not. Some of the nominations the President has proposed for lifetime seats on the federal bench have been extremely controversial, extremely troubling. Today the Senate is debating President Bush's controversial nomination of J. Leon Holmes to a lifetime position to the Federal court in Arkansas. For some reason, he is finally coming up for a vote today. The Republican leadership could have brought him up at any time in the last 14 months since his nomination was reported out of the Judiciary Committee. The Democratic leadership had no objection to him coming up. Many of us oppose the nomination, but we had no objection to bringing him up. For some reason, the Republican leadership refused to do so for almost 14 months. As you look at the public record of this nomination, you can almost see why they were embarrassed to bring it up before now. In fact, this controversial nomination was not only denied consideration by the Republican leadership for over a year, but on a remarkable day last spring the Republican-controlled Judiciary Committee didn't even give him a positive recommendation. They voted him out without recommendation. On the few occasions that has happened with lower court nominees in the past, that pretty much determined you would not get a vote on the floor. Can you imagine how troubling the record must be if the majority were Republicans, the nominee was of a Republican President, and a majority of the Republicans were not willing to vote for him in the Senate Judiciary Committee? So the leadership held him back for over a year. I think I understand why. I think I understand why some of my friends on the other side of the aisle pay lip service to this nomination and are rather embarrassed by it. If you look at the record of this nominee, it is quite clear he has made numerous strident, intemperate, and insensitive public statements over the years regarding school desegregation, political emancipation, school prayer, voting rights, women's equal rights, gay rights, the death penalty, the Bill of Rights, and privacy, among other issues. For example, he has argued in the area of reproductive privacy law that ``concern for rape victims is a red herring because conceptions from rape occur with the same frequency as snow falls in Miami . . . '' I prosecuted a lot of rape cases when I was a prosecutor, and a lot of child abuse cases where the child was raped--something that is rape under the law of every State in this Union. I find the statement of this nominee on this issue to be insensitive and appalling. Speak to the family of a 13-year-old girl who is pregnant after being raped by her family's best friend, the next-door neighbor, and in some instances by her father, and tell them that pregnancy does not happen from rape. I prosecuted some of those cases. They are the most sickening and appalling things. But I tell Mr. Holmes, if he is confirmed and cases come before his court, I hope he will open his eyes. I hope he will open his eyes to reality and realize these things do happen--not just in this country. What would he say to the women who are being raped in Sudan for the purpose of forcing them to have babies of a certain hue as part of the genocide that is going on in Sudan? It is genocide. Our administration doesn't want to admit it is, but it is. Rape is a serious matter. Mr. Holmes called concerns about pregnant rape victims ``trivialities.'' That is his word--``trivialities.'' Ask a pregnant rape victim if they consider this a trivial matter. By making such remarks, Mr. Holmes has revealed how tightly closed his mind is to seeing the realities of this world. But worse than that, his statements also reveal a callous disregard for the trauma of women who are raped and a disturbingly willful ignorance of the facts. An interesting matter is that according to the Weather Almanac, it did snow one time in Miami, Florida during a freak cold spell in 1977. But a more disturbing statistic is that, according to the American Journal of Preventive Medicine, there were more than 25,000 pregnancies that resulted from rape in 1998 in our country alone. Not 1, 2, 3, or 4; it was 25,000. And this nominee says such things don't occur. He says that people who express such concerns are focused on trivialities. Where in heaven's name has he been living? What kind of a mindset would he bring to a Federal bench? Why in heaven's name did the President nominate him? In fact, according to the medical journals, as many as 22,000 of those pregnancies could have been prevented if the women had received emergency contraceptive treatment. Instead, with more than 300,000 rapes each year in the United States, more than 25,000 women each year find that not only were they violated, but they are pregnant as a result. One can barely imagine the trauma and heartache of such a circumstance. For many rape victims, the girl is under 18 or the victim of incest. It is hard to imagine the pain and difficult decisions these young women face. But Mr. Holmes has called concerns about these women ``trivialities.'' This type of statement and attitude makes one wonder what kind of judge he would make, and federal judgeships are for life. Can you imagine if such cases were before a judge like this? In my own conscience, I could not reward a lifetime position of power to such a person with power over women and men alike. I think this sort of judgmental and intemperate approach is opposite of the qualities needed for the Federal bench. Indeed, given Mr. Holmes' strong commitment to various political causes of the right wing over these past two decades, a Republican Senator was moved to ask this nominee: ``Why in the world would you want to serve in a position where you have to exercise restraint and you could not, if you were true to your convictions about what the role of a judge should be, feel like you have done everything you could in order to perhaps achieve justice in any given case?'' Mr. Holmes, for his part, conceded: I know it is going to be difficult for this Committee to assess that question, and I know it is a very important question. But for this Senator, a member of that committee, it is a very difficult question, especially with a record like Mr. Holmes'. And it is certainly not a question I would answer by giving somebody a lifetime appointment to a position of such enormous power. In fact, the question is so difficult that at the Judiciary Committee business meeting, where Democrats were prepared to vote on Mr. Holmes' nomination, Republican Senators asked for more time to review Mr. Holmes' record. I think perhaps that at that meeting some of them heard for the first time some of the statements made by Mr. Holmes in the material he submitted to the Senate Judiciary Committee. Eventually, in May of last year, they reported him out provided they did not have to vote for him, provided they could vote him out without recommendation. That does not happen very often. The last time I can remember that happening was with Judge Clarence Thomas. His nomination was reported without recommendation in order to allow a vote before the full Senate when he could not achieve a majority in the committee. Like Justice Thomas, Mr. Holmes has been a proponent of what is known as a ``natural rights'' or ``natural law'' theory of interpreting our Constitution in order to achieve judicial recognition of rights he believes should exist. He has been supportive of reading new and undefined rights into the Constitution based on his personal or political conception of ``justice.'' This sounds to me like the judicial activists the President has said he does not want to see on the bench. I guess if they are very conservative Republican judicial activists, it is OK. Mr. Holmes has supported efforts to require that the language of the Constitution be trumped by language he prefers in the Declaration of Independence in order to advance a social agenda against choice and against the separation of church and state. This method of interpreting the Constitution, the fundamental charter of our democratic nation, represents an approach which has been advocated by the far right in its effort to erode the longstanding separation of church and state that assures all Americans their first amendment freedoms. The idea of ``natural law'' is what led to the tyrannical period of judicial activism at the turn of the last century in which the Supreme Court struck down numerous State and Federal laws written to protect the health and safety of working Americans. Those decisions are discussed at length in law school. In the activist Supreme Court decision of Lochner v. New York federal judges found a ``natural right'' to contract in employment decisions that trumped any legislative efforts to end child labor--which in many cases was basically child slavery--sweatshops, and the terribly unsafe workplaces at the beginning of the Industrial Revolution. The Supreme Court's reliance on ``natural rights'' was repudiated in 1937--70 years ago. Mr. Holmes has been critical of the dissenting opinion in the Lochner decision, and he seemingly embraces the idea that the activism of the Supreme Court almost 100 years ago was justified. Again, I mention this because President Bush has spoken repeatedly against judicial activism while simultaneously nominating people likely to be judicial activists for his social and political agenda, people such as Mr. Holmes. This approach is one of those: Watch what we say; don't watch what we do. Republicans will say we are against judicial activists with the one hand, and with the other hand quietly nominate judicial activists. One of the most troubling things Mr. Holmes has written is his criticism of what is known in our law as ``substantive due process.'' As even Mr. Holmes conceded in his answers to my questions, substantive due process is the means by which the rights in the Constitution's Bill of Rights apply to protect individuals from State governments that would deprive them of those rights, such as the right to freedom of religion, freedom of speech, freedom of the press. Mr. Holmes concedes that as a scholar he disagreed with the idea of substantive due process, but now, when he is facing a vote on his nomination in the Senate, he says basically: Oh, by the way, of course now I see it as settled law. He did not see it that way a few short years ago. That reminds me again of another nomination. These issues rose during the hearings on Clarence Thomas's hearings on his nomination to the Supreme Court. He had given many speeches praising natural law principles, but then disavowed them during his Supreme Court confirmation hearings. For example, he praised Lew Lehrman's article, ``The Declaration of Independence and the Right to Life,'' as ``a splendid example of applying natural law.'' That article looked to the Declaration of Independence as the basis for overturning Roe v. Wade. Then, despite his assurances to the Senate Judiciary Committee that he would follow the law in this area if he was confirmed, of course, Justice Thomas immediately voted to overturn Roe v. Wade--just the opposite of what he said--as soon as he was confirmed. The Senate trusted him, and we saw what happened. Now, Mr. Holmes wishes to regard this issue as one in which we should just trust him to set aside what he himself calls his ``history of activism.'' He admitted to a reporter that the ``only cause that I have actively campaigned for and really been considered an activist for is the right-to-life issue.'' But then he told the Senate Judiciary Committee that he would not promise to recuse himself from those cases in which he has a history of activism. What he said was: Just trust me. Well, I do hope that if the Senate Republicans disagree with me and Mr. Holmes is confirmed, that he will keep his word and he will not impose his political views on others as a judge, especially as he was under oath when he made that promise. But I have seen too many, even though they were under oath, go back on their word as soon as they were confirmed. This debate is not about his position on right to life issue. We have confirmed numerous judicial nominees of President Bush who have been active in the right-to-life movement or litigation, such as Judge Lavenski Smith, confirmed to the Eighth Circuit; Judge John Roberts, confirmed to the DC Circuit; Judge Michael McConnell, confirmed to the Tenth Circuit; Judge Ron Clark, confirmed to the District Court in Texas; Judge Ralph Erickson, confirmed to the District Court in North Dakota; Judge Kurt Englehart and Judge Jay Zainey, confirmed to the District Court in Louisiana; and Judge Joe Heaton, confirmed to the District Court in Oklahoma--among the 197 judicial nominees of President Bush who have been confirmed. I have voted for many judges who made it very clear in their public record that they had taken a right-to-life position. In fact, the judges I just mentioned have been at the forefront of efforts to reverse Roe v. Wade as lawyers, and all were confirmed. So it is unequivocally false to claim that Democrats have employed a pro-choice litmus test in voting on judicial nominees--not with all the ones we have voted for who would fall in that area. But the same, about the litmus test, cannot be said of the choices made by President Bush. It seems he has sought out individuals who share his pro-life views and who have strong pro-life credentials for these lifetime positions as Federal judges. In fact, I cannot think of a single judicial nomination President Bush has made of an individual who has been active on the pro-choice side of this issue. Senate Democrats have shown we do not have a litmus test. The White House has shown it does. I am also saddened to note Mr. Holmes has attacked efforts to enforce the Supreme Court's decision in Brown v. Board of Education, the landmark case which declared that separate is inherently unequal. As a nation we have just celebrated the 50th anniversary of this unanimous decision of the Supreme Court--a unanimous decision with conservative and liberal justices joining together, but here we have a nominee who has criticized efforts to enforce this decision. Brown v. Board of Education helped break the shackles of Jim Crow that had bound the Nation's dream of racial equality and the Constitution's promise of the 14th amendment. Instead, Mr. Holmes suggested that the Federal courts should not have the power to order school districts to take actions to remedy segregation that was blatantly unconstitutional. But I would remind him that, fortunately, there were judges who did not take this twisted, I might say, cowardly view of Brown v. Board of Education. There were countless judges appointed by Republicans and Democrats who had courage in their efforts in the South because they did not believe our federal courts lacked the power to enforce a remedy to the violation of a fundamental constitutional right. Because of their courage, Brown v. Board of Education was enforced. One has to ask, if Mr. Holmes, based on his statement, would have shown that courage. I respect the legacy of Judge Ronald Davies, who ordered that Little Rock Central High be integrated and had the independence and the strength of character to stand up to Governor Orval Faubus and insist on the enforcement of our Constitution as interpreted by the Supreme Court. We do not honor his legacy--his great, great legacy on this issue--by voting for this nominee. In fact, Mr. Holmes has suggested that Booker T. Washington was correct to teach that slavery in the United States, which resulted in the inhumane, involuntary servitude and often brutal deaths of millions of African Americans, was part of divine providence. Mr. Holmes who wrote his dissertation on Mr. Washington's controversial ideas, stated that ``what we need to learn from Booker T. Washington is that not everything that parades under such banners as `liberation' and `freedom' is genuine.'' My grandparents and great-grandparents came to this country because they believed that the freedom promised by the Constitution in America is genuine. They believed liberation is genuine. They believed that this was a country that guaranteed it. I was sorely disappointed to hear Mr. Holmes' statement. I do not think Mr. Holmes is simply out of step with reasonable interpretations of liberty, privacy, and equality. He is marching backward in the direction of an era in which individual rights under our Constitution were not fully endorsed by the courts and were often empty promises. While such a narrow approach may once have been in favor among a few, his hostility to modern understandings about civil rights and human rights is eccentric, to say the least. It is the Senate's job under our Constitution to serve as a check on the executive branch in nomination and it is our job to protect the rights of the American people by trying to ensure that we have a fair and an independent Federal judiciary. Given his views of equality and freedom, it is perhaps not surprising that Mr. Holmes has also been critical of full endorsement of voting rights. For example, he represented the Republican Party of Arkansas before the Arkansas Supreme Court in late 2002 to reverse a lower court order allowing voting hours to extend beyond statutory times set in Pulaski County, in Little Rock. In the Republican Party of Arkansas v. Kilgore, Mr. Holmes was the party's lawyer in its emergency petition to the Arkansas Supreme Court. According to his questionnaire, the Democratic Party ``obtained on order at 6:46 p.m. on election night extending the voting hours from 7:30 p.m., the statutory time for concluding voting, to 9:00 p.m. for Pulaski County.'' Subsequently, Mr. Holmes was able to get all 300 ballots cast after 7:30 thrown out, even though many of those people, working people, who voted had been waiting in long lines, waiting for their right to vote. According to press accounts, many of these long lines were in precincts with large numbers of African Americans. I think we should all be concerned when votes are not counted, when the American citizens who exercise their right to vote are disenfranchised. Mr. Holmes does not give much weight to this concern. During the Bush v. Gore recount litigation, Mr. Holmes wrote a letter to the editor strongly opposing the accurate counting of Presidential ballots. Why? Such a recount would result in more votes to the Democratic candidate. I do not believe that with the record of this nominee that he will be impartial on such issues in Federal court. I would hate to be a Democrat to have to come before his court with views like this, but it appears that this is a case where the White House is saying: We do not want an independent Federal judge. We want somebody who we hope will be an arm of the Republican Party from the bench. Finally, I note that among the many very troubling things this nominee has said, he has written that he does not think the Constitution was made for people of different views. I believe our Constitution's tolerance and protection for a diversity of views is one of the things that has made our Nation strong. Just look at the first amendment, the beginning of our Bill of Rights. The first amendment says you have the right to practice any religion you want or none if you want. It says very clearly you have a right of free speech. What it says is that we will have diversity because people have freedom of conscience. People have different ideas. Not only does the Constitution inherently value diversity, but also it guarantees that diversity will be protected. Anywhere you have diversity protected, you can have a strong democracy. I cannot think of anything I have heard by any nominee that goes so much against our vision of America than to say that our Constitution was not for people of different views. Mr. Holmes seems to think the Constitution is meant only for people who share his own views of the world. I cannot imagine a fairminded person suggesting, as this nominee has, that Justice Oliver Wendell Holmes erred when he wrote that the judicial activism of a century ago was wrong. Justice Holmes stood up against other judges who were substituting their personal, political, and economic views for those of legislators. Justice Holmes observed our Constitution is made for people of different views, but Mr. Holmes specifically objects to that vision of our Nation's charter. I cannot imagine a fairminded and open-minded person staking out the ground that Mr. Holmes has. Mr. J. Leon Holmes has taken issue with that bedrock principle of our law. It is abundantly clear from the nominee's own writings and record why this nomination has stirred such controversy in the Senate and among the American people. Mr. Holmes might be one of the most intolerant nominees we have had before the Senate for a confirmation vote in the time I have been in the Senate. I can see why, even with a Republican-controlled Judiciary Committee, he could not get a majority vote to support him. He should not get a majority vote in the Senate. Ask yourselves, men and women of this Senate, can you really vote to give somebody a lifetime appointment when they interpret the laws of this Nation--somebody who says that the laws are not made to protect diversity in America? Tell my Irish grandfather and my Italian grandfather, both of whom were stonecutters in Vermont, that our Constitution should not protect people from diverse backgrounds. I cannot believe that a judicial nominee would take issue with this core value because he wants to impose his own political views on the Constitution. What we have before us is a very troubling nomination. Here, the President, who campaigned against the idea of judicial activism, has nominated somebody who is unabashedly an activist in a wide range of issues taking a narrow view of individual rights. The President, who has said he wants to respect all views in the country, has nominated somebody who does not believe in such diversity. I still cannot get out of my mind the comments about rape and pregnancy. I still have nightmares when I think of some of the cases I prosecuted, some of the children I counseled, some of the families who grieved in my office, some of the lives I saw shattered by children who had been raped, became pregnant from that rape, and also were abused. I will soon yield the floor so others may speak. I will vote against Mr. Holmes. He is not a man who should be on the federal bench with a lifetime post interpreting the rights of others, a man whose mind is so set against women's rights no matter how polite he may be, so set against the idea of protecting diversity, so set against the way our Constitution should be interpreted. His writings are a throwback to darker days in our Nation's approach to the law and the fundamental freedoms promised by our Constitution. I yield the floor.

Mr. LEAHY. Mr. President. I began this day calling for bipartisanship and civility in this Chamber. It seems that call has fallen on deaf ears with Republicans renewing their baseless charges that Democrats are anti-Catholic. Some Republicans keep recycling these reckless charges even though they are false. They do so in order to play wedge politics, the type of dirty politics preferred by the President's strategist Karl Rove. I have called on the White House to disavow these charges of religious bigotry. After all, President Bush ran for office claiming that he would change the tone in Washington and ``be a uniter, not a divider.'' His repeated actions to the contrary speak louder than his words. I have called on the Republican administration to disavow these anti-Catholic claims. Everyone knows that the President's father's counsel is pushing these false and partisan charges against Democrats. The White House has not stopped these charges. Its allies continue to throw this mud. It is beneath the dignity of this body. Anyone who reviewed the public submissions of the 197 judicial nominees of President Bush we have confirmed would see that many of these nominees have been active volunteers in their communities, including their parishes and other faith-based organizations. For example, the judges we have confirmed have been active members of their Diocesan Parish Council, the Friends of Cardinal Munich Seminary, the Altar and Rosary Society, the Knights of Columbus, the Archdiocese Catholic Foundation, Catholic Charities, the Archbishop's Community Relief Fund, the Catholic Metropolitan School Board, Serra Club, their Parish and Pastoral Councils, the Homebound Eucharistic Ministers Program, the St. Thomas More Catholic Lawyers Association, the John Carroll Society, the Guild of Catholic Lawyers, the Catholic League for Religious and Civil Rights, and the U.S. Catholic Conference, among other organizations. How dare Republicans come to this floor and claim that Democrats oppose Catholics or others active in their church when the public records of the 197 nominees confirmed absolutely refute these false and hurtful claims. I stand against the religious McCarthyism being used by some Republicans to smear Senators who dare to vote against this President's most extreme nominees for lifetime positions on the federal courts. We should come together to condemn their injection of religious smears into the judicial nomination process. Partisan political groups have used religious intolerance and bigotry to raise money and to punish and broadcast dishonest ads that falsely accuse Democratic Senators of being anti-Catholic. I cannot think of anything in my 29 years in the Senate that has angered me or upset me so much as this. Earlier this session I recall emerging from mass to learn that one of these advocates had been on C-SPAN at the same time that morning to brand me an anti-Christian bigot. As an American of Irish and Italian heritage, I remember my parents talking about days I thought were long past, when Irish Catholics were greeted with signs that told them they did not need apply for jobs. Italians were told that Americans did not want them or their religious ways. This is what my parents saw, and a time that they lived to see as long passed. And my parents, rest their souls, though this time was long past, because it was a horrible part of U.S. history, and it mocks the pain--the smears we see today mock the pain and injustice of what so many American Catholics went through at that time. These partisan hate groups rekindle that divisiveness by digging up past intolerances and breathing life into that shameful history, and they do it for short-term political gains. To raise the specter of religious intolerance in order to try to turn our independent federal courts into an arm of the Republican party is an outrage. They want to subvert the very constitutional process designed to protect all Americans from prejudice and injustice. It is shocking that they would cavalierly destroy the independence of our federal courts. It is sad, and it is an affront to the Senate as well as to so many, when we see senators sit silent when they are invited to disavow these abuses. Where are the fair-mined Republican Senators? Where are the voices of reason of moderate Members of this body? Do they agree with this wedge campaign by the more extreme elements in the Republican party to cause further divide in our nation along religious lines? What has silenced these Senators who otherwise have taken moderate and independent stands in the past? Are they so afraid of the White House that they would allow this religious McCarthyism to take place? Why are they allowing this to go on? The demagoguery, divisive and partisan politics being so cynically used by supporters of the President's most extreme judicial nominees needs to stop. These smears are lies, and like all lies they depend on the silence of others to live, and to gain root. It is time for the silence to end. The administration has to accept responsibility for the smear campaign; the process starts with the President. We would not see this stark divisiveness if the President would seek to unite, instead of to divide, the American people and the Senate with his choices for the Federal courts. And those senators who actively join in this kind of a religion smear; they may do it to chill debate on whether Mr. Holmes can be a fair and impartial judge, but they do far more. They hurt the whole country. They hurt Christians and non-Christians. They hurt believers and non-believers. They hurt all of us, because the Constitution requires judges to apply the law, not their political views, and instead they try to subvert the Constitution. And remember, all of us, no matter what our faith--and I am proud of mine--no matter what our faith, we are able to practice it, or none if we want, because of the Constitution. All of us ought to understand that the Constitution is there to protect us, and it is the protection of the Constitution that has seen this country evolve into a tolerant country. And those who would try to put it back, for short-term political gains, subvert the Constitution, and they damage the country. These baseless and outrageous claims harken back to dark days in our nation's history. I was just a young man growing up in Montpelier, VT when Senator Joseph McCarthy rose to power and ignomy as one of our country's worst demagogues through his spectacular brand of the politics of destruction. Senator McCarthy first claimed to a Republican Party club in West Virginia that he had a list of 205 known communists in the State Department. The next day, in Salt Lake City, he claimed he had a list of 57 ``card-carrying communists'' at the State Department. At other times he claimed there were 81. You see, the facts do not really matter to McCarthyists--so long as the claim is spectacular and causes voters alarm. I think many Americans believed because they could not imagine why someone would make such false allegations and smear the reputations of innocent people. That is the advantage of the demagogue, but we must be ever vigilant that such a lie does not become the truth through the alchemy of repetition. Shortly afterward his remarks in Utah, Senator McCarthy came to the floor of the Senate, this floor, and asserted that he had dossiers on federal employees who were un-American, changing descriptions as he read them. For example where one person was described as ``liberal'' on paper, Senator McCarthy substituted the infammatory ``communistically inclined.'' That year, in 1950, a Senate Committee investigating Senator McCarthy's charges issued a report, known as the Tydings Committee Report after Maryland Senator Millard Tydings who chaired the subcommittee looking into the lies that were being spread. A critical piece of that report from 1950 has relevance today, more than 50 years later so I would like to quote a paragraph in full: At a time when American blood is again being shed to preserve our dream of freedom, we are constrained fearlessly and frankly to call the charges, and the methods employed to give them ostensible validity, what they truly are: A fraud and a hoax perpetrated on the Senate of the United States and the American people. They represent perhaps the most nefarious campaign of half-truths and untruth in the history of the Republic. For the first time in our history, we have seen the totalitarian technique of the ``big lie'' employed on a sustained basis. The result has been to confuse and divide the American people at a time when they should be strong in their unity, to a degree far beyond the hopes of the Communists whose stock in trade is confusion and division. In such a disillusioning setting, we appreciate as never before our Bill of Rights, a free press, and the heritage of freedom that has made this Nation great. This quote is from the Report of the Committee on Foreign Relations pursuant to S. Res. 231, a resolution to investigate whether there are employees in the State Department disloyal to the United States, dated July 20, 1950. The Tydings Report also noted that ``few people, cognizant of the truth in even an elementary way, have, in the absence of political partisanship, placed any credence in the hit-and-run tactics of Senator McCarthy.'' Similarly, the Report sagely observed that ``the oft- repeated and natural reaction of many good people . . . goes something like this--`Well there must be something to the charges, or a United States Senator would never have made them!' The simple truth now is apparent that a conclusion based on this premise, while normally true, is here erroneous. . . .'' Unfortunately, we face a similar situation today. It was not until 1954 that Senator McCarthy's deceitful campaign earned the censure of the full Senate for conduct unbecoming a Member of the Senate. I do remember that year when one of the greatest Senators of Vermont, Ralph Flanders, stood up on this floor, even though he was a Republican, sort of the quintessential Republican and condemned the tactics of Joe McCarthy on several occasions. For example, on June 1, 1954, Senator Flanders renewed his deep concerns about the allegations of Senator McCarthy and made some observations that are particularly relevant, unfortunately, to the recnt religious smear of Republicans in 2003. He noted how Senator McCarthy's political agenda involved sowing division and fear among people of different faiths--Jews, Protestants, and Catholics. After instilling fear in Jewish Americans, McCarthyists ``charged the Protestant ministry with being, in effect, the center of Communist influence in this country.'' As Senator Flanders observed, ``the ghost of religious intolerance was not laid'' by the departure of a few close allies of Senator McCarthy who had been rebuked for attacking a majority faith in this country. As Senator Flanders noted, ``Clearer and clearer evidence of the danger of setting church against church, Catholic against Protestant. . . . [Senator McCarthy's] success in dividing his country and his church'' was paralleled only by his divisiveness to the Republican party. Later that summer, Senator Flanders offered resolution of censure condemning the conduct of Senator McCarthy, who had smeared so many innocent people with his false claims and treated some of his colleagues in this body with contempt in his zeal. He noted Senator McCarthy's penchant for breaking rules, ``The Senator [McCarthy] can break rules faster than we can make them.'' When the Senate considered the matter, it censured Senator McCarthy, and rightly so. History properly condemns him and his cohorts, even though it has become fashionable for right-wing extremists such as Ann Coulter to attempt to rewrite history and call him a brave hero who saved America. The fact is that our Nation and Constitution are lucky to have survived his divisive, destructive and manipulative tactics which were then and remain, the words of Senator Flanders, a blot on the reputation of the Senate. He was a ruthless political opportunist who exploited his position of power in the Senate to smear hundreds of innocent people and win headlines and followers with his false assertions and innuendo, without regard to facts, evidence, rules and human decency. Senator Flanders of Vermont stood up and fearlessly condemned what Joseph McCarthy was doing. And it stopped. I hope some will stand up and condemn these McCarthyist charges of anti-Catholic bigotry leveled at Catholics and others who are members of he Senate Judiciary Committee and Members of this Senate. The reality is that not one of the Democratic Senators in Committee who voted against Mr. Holmes did so because he is Catholic. Half of the Democratic Members of the Judiciary Committee are Catholic. We would not vote for him or vote against him because of his religious affiliation. What we cared about was Mr. Holmes long history of statements that he himself admits have been inflammatory and unfortunate. Among the many concerns are his statements that the Constitution, our Constitution, is not meant for people of different views. His intolerance of the views of others is manifest in numerous statements he has made. His insensitivity to rights of others is also apparent, no matter how polite a person he may be. His statements against efforts to implement the Supreme Court's decision in Brown v. Board of Education, his opposition to Federal law intended to restore basic civil rights rules that had been modified by conservative activist judges, his denigration of political rights for African Americans, his active work to limit people exercising their right to vote or to have their vote counted, and his screeds against women's rights are just too much to overlook. The President has marked the anniversary of the landmark Civil Rights Act of 1964 with public speeches while below the radar screen he has put forward nominee after nominee with records of hostility toward civil rights, toward women's rights, toward environmental protections, and toward human rights. This President knows what he is looking for in the legacy he wants to leave with the lifetime appointees he has put forward. He has nominated more people active in the Federalist Society, such as Leon Holmes, than African Americans, Latinos or Asians combined. He is more committed to ideological purity than to diversity or full enforcement of civil rights. President Bush has claimed that he wants judges who will interpret the law and not make the law, but in the aftermath of the administration's re-interpretation of the laws against torture that assurance is meaningless. Just look at the torture memo written by Jay Bybee, who was confirmed for a lifetime seat on the Ninth Circuit after stonewalling the Senate on his legal work and views. It is not fair to the American people that this President's judicial nominees be given the benefit of the doubt. Here, in Leon Holmes, we have a nominee whose views are well known. There is little doubt what kind of activist judge he was chosen to be and will be if confirmed. Senator Hatch has claimed that asking about whether a nominee will follow Supreme Court precedent on privacy and choice is out of bounds because in his view ``the great majority of people who are pro-life come to their positions as a result of their religious convictions. We hold this view as a religious tenet, and this is part and parcel of who we are.'' Under Senator Hatch's view that it is improper to ask judicial nominees about their view of legal issues that may also relate somehow to a religious position. I ask, however, would it be wrong for the Senate to ask a nominee for a lifetime position for their views on racial discrimination? Of course that would be absurd and an abdication of our responsibility to serve as a check on the nominees put forward by this or any President. As Senator Durbin has mentioned based on the tragic shootings instigated by the racist World Church of the Creator in Illinois, it would be irresponsible for the Senate in its advice-and-consent role to ignore, for example, questions of racial discrimination if those views can be cloaked in religious garb. The Senate has considered the views of nominees since the beginning of our Nation, when Justice John Rutledge's nomination to be Chief Justice of the Supreme Court was rejected for a speech he gave expressing his views on a treaty. To assert suddenly that although President Bush and his advisors can consider a judicial candidate's views, such as on race or choice, the Senate is forbidden from doing so is a terrible manipulation of the process. The Constitution gives the Senate an equal role in the decision about who serves on the Federal courts, not a lesser rule and certainly not that of a rubber stamp. With these religious assertions, Republicans may think that they have found a loophole to avoid public questions to and answers by their hand-picked judicial nominees about their views that both Democrats and Republicans actually consider to be significant areas of law. Support for protecting racial discrimination should be allowed no loophole from scrutiny. A nominee's beliefs and views about constitutional rights should not be hidden from public view until after a nominee is confirmed to a lifetime seat on the bench. The truth is that Mr. Holmes' affiliation with the Catholic Church neither disqualifies him nor qualifies him for the Federal bench. And this is how it should be, how it must be, under our Constitution. Mr. Holmes' record is what causes grave concerns. He has been active and outspoken with rigid and radical views about the meaning of the Constitution, the role of the Federal Government, equality rights and other liberties. Republicans have falsely claimed that Democrats have an anti-Catholic bias because we oppose the nomination of Leon Holmes for a lifetime job as a Federal judge. The opposition to Mr. Holmes is not based on his religious affiliation. No matter his faith, Mr. Holmes' record does not demonstrate that he will be fair to all people on most legal issues that affect the rights of all Americans. Mr. Holmes' religious affiliation is irrelevant to these serious matters of concern about whether he would be a fair judge. He has no meaningful judicial experience that would demonstrate his ability to set aside his views and apply the law fairly. To suggest otherwise is low and base. It is also untrue to claim that Democrats have a pro-choice litmus test. Many of the 197 judicial nominees of President Bush have been active in pro-life issues or organizations according to the public record, and most have been confirmed unanimously, such as Ron Clark, a pro-life former Texas State legislator, Ralph Erickson, who was active in pro-life groups in North Dakota, Kurt Englehardt, a former pro-life leader in Louisiana, and Joe Heaton, a pro-life former Oklahoma legislator. The public record shows that it is obviously false to claim that Democrats have employed a pro-choice or anti-Catholic litmus test in voting on judicial nominees. Why anyone would tell such lies, claiming that Democrats are anti- Catholic or anti-pro-life, and sow such seeds of division and hate. Why, as Senator Tydings asked in regard to McCarthy, why would anyone on the floor of the Senate or in a committee or in a hallway press conference in the Capitol or anywhere make such charges if there were not something to them? Conservative columnist Byron York noted that Republicans are working closely with some organizations to press the debate: `` `The issue is playing very well in the Catholic press and in Catholic e-mail alerts,' the [unnamed] Republican says. `You tap into an entire community that has its own press, its own e-mail systems, and that has been tenderized by anti-Catholicism, which they consider to be the last permissible bias in America.' '' This religious McCarthyism of Republican partisans is bad for the Senate. It is bad for the courts. And it is bad for the country. Mr. President, I suggest the absence of a quorum and ask that the time be divided equally.

Mr. LEAHY. I thank the Chair. Mr. President, the Senator from California, Mrs. Boxer, wishes to speak on a matter of personal concern to her State. I believe she mentioned this to the Senator from Utah. I ask unanimous consent that she be yielded 8 minutes as in morning business.

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

Mr. LEAHY

Mr. LEAHY. Mr. President, I see other Senators seeking the floor. I will probably have an opportunity to say a few words tomorrow. I find that the summertime laryngitis is coming back, and I see my dear friend from Iowa on the floor. I yield the floor.

Mr. LEAHY. Mr. President, the current version of class action legislation has undergone a number of changes since it was reported by the Judiciary Committee. Some of these changes have been improvements. I want to note that. Some have not. I know that Senators Dodd, Landrieu, Schumer, Kohl, and Carper negotiated some procedural improvements to S. 1751. I believe these do help. I appreciate their efforts to rein in some of the worst aspects of the bill. For example, these improvements restricted the use of worthless coupon settlements. I agree with that. To hear some of the commentators about this bill, you would think that was not in there, but I want everybody to know it is. They also eliminated some provisions that were harmful to civil rights and consumer plaintiffs who endure hardships as a result of initiating and pursuing litigation. But in other aspects, the compromise failed to achieve their intended goals. For example, one provision seeks to reduce the delay plaintiffs can experience when a case is removed to Federal court. It sets a time limit for appeals and remand orders. But there is not a concomitant measure that would set a timeline for the district court to rule on the actual remand motion. This may seem like a bit of arcane lawyer's jargon, but it is a lot more than that. It means that you could be a plaintiff, be in State court legitimately. You suddenly get plucked out of State court. But then they could put you on the Federal docket. Somebody could say, OK, we are just going to leave it there year after year after year after year, and there is nothing you could do about it. There is no recourse. I understand that Senator Feingold will offer an amendment to set a reasonable time limit for the district court to rule on these remand orders. It seems like common sense. Rule them up or rule them down, but have a time to do it. I hope all Senators will support him. In addition, I am disturbed the bill may deny justice to consumers and others in class actions involving multiple State laws. The recent trend in the Federal courts is to not certify class actions if multiple State laws are involved; thus, the class action bill could force nationwide class actions into Federal court and then just be dismissed for involving too many State laws. It is kind of a way of making sure that you never reach the merits of the case, whether in Federal courts or State courts, because you could get rid of it on a technicality. I understand Senator Bingaman has an amendment to prevent this from happening. I would support that. I am also concerned with provisions contained in the most recent iteration of this class action bill before the Senate. I try to keep up with it, but it keeps undergoing so many changes. But this latest part would deprive Vermonters of the right to band together to protect themselves against violations of State civil rights, consumer, health, and environmental protection laws in their own State courts. What it is saying is, we here in the Senate can make a far better judgment than the people of Vermont going into State courts on State matters or the people of Tennessee going into Tennessee court on a Tennessee matter. I hear so many speeches about how we have to protect our States and keep the heavy hand of government from them, but basically we are saying that if a group of people, say, in Iowa, want to band together to protect themselves against a violation of State civil rights or consumer or health or environmental protection laws, and do it just in their own State courts, they can't do it because the U.S. Senate has figured we know a lot better than the people of Iowa or Tennessee or Vermont. This bill continues to deprive citizens of the right to sue on State law claims in their own State courts if the principal defendant is a citizen of another State, even if that defendant has a substantial presence in the plaintiff's home State and even if the harm done was in the plaintiff's home State. In other words, you might have somebody from State A, but they have invested a huge amount in the second State. They are involved in things in that second State. They do something in that second State. They may deprive citizens of their rights in that second State, and they can't sue in that State. I understand that Senator Breaux intends to offer an amendment to keep these in-State class actions in State courts. They should be. I am also troubled by the scope of the legislation in that it federalizes a lot more than class actions. This goes way beyond class actions. Despite the fact that such a provision was struck from the bill during markup in the Judiciary Committee, mass torts now again are included in the bill. This expansion simply amplifies the harm done to citizens' rights and to the possibility of vindicating those rights in their own State courts. Some special interest groups are distorting the state of class action litigation by relying on a few anecdotes in an ends-oriented attempt to impede plaintiffs bringing class action cases. It will make a lot of money in radio and TV stations. The ads are designed to actually be seen or heard only by 535 people--Members of Congress. I think we should take steps to correct actual problems in class action litigation where they occur. But simply shoving most suits into Federal court will not correct the real problems faced by plaintiffs and defendants. We have done something like this by taking a whole lot of criminal matters that should easily be handled in State courts and put them into the Federal courts, and the Federal courts are so overloaded they don't get to either the criminal or civil cases. Our State-based tort system has grown over 200 years. It remains one of the greatest and most powerful vehicles for justice anywhere in the world. One reason for that is the availability of class action litigation to let ordinary people band together to take on powerful corporations or, in some cases, even their own Government. Nobody has the money by themselves to take on the Government. Nobody has the money by themselves to take on some multibillion-dollar corporation. Banding together, sometimes they can. Defrauded investors, deceived consumers, victims of defective products, environmental torts, and thousands of other people are currently able to access class action lawsuits in their State court system to seek and receive justice. They can band together to afford a competent lawyer. Whether they are getting together to force manufacturers to recall products or to clean up after devastating environmental harm or to vindicate basic civil rights, they are using class action. We should not try to make it more difficult or costly for them to right those wrongs, although many people who cause the wrongs would love us to put roadblocks in the way. So the so-called Class Action Fairness Act falls short in the expectation set by its title. It is going to leave many injured parties who have valid claims with no way to seek relief. Class action suits have enabled our citizens to receive justice and expose wrongdoing by corporations and their own Government. It has given the average American a local venue and a chance. This legislation may be the last authorization bill the Senate considers this year. We have only passed one appropriations bill for the upcoming fiscal year. The Senate has so few days left. Can you imagine that? There are 14 appropriations bills and we have only passed 1. We have not passed a budget yet. I think that is supposed to be done in March or April. We are not going to do our appropriations bills. Everybody knows that. Someone will write a huge omnibus bill with the White House and try to cram it through. So I think because this is the last authorization bill, you are going to have Senators on both sides of the aisle with both germane and nongermane amendments. So we will vote and see where we go. There were improvements made. We showed we could make improvements. But as soon as it started really being improved, the doors got slammed shut. I ask unanimous consent that a letter on behalf of the attorneys general of California, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Montana, New Mexico, New York, Oklahoma, Vermont, and West Virginia in opposition to S. 2062 be printed in the Record.

Mr. LEAHY. Mr. President, I ask unanimous consent that an editorial in today's New York Times in opposition be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I am pleased that today the Senate will pass the Cooperative Research and Technology Enhancement Act, the CREATE Act of 2004. As I have noted before, the United States Congress has a long history of strong intellectual property laws, and the Constitution charges us with the responsibility of crafting laws that foster innovation and ensure that creative works are guaranteed their rightful protections. This past March, I joined with Senator Hatch, Senator Kohl, and Senator Feingold in introducing the CREATE Act, which will provide a needed remedy to one aspect of our nation's patent laws. Our bill is a narrow one that promises to protect American jobs and encourage additional growth in America's information economy. In 1980, Congress passed the Bayh-Dole Act, which encouraged private entities and not-for-profits such as universities to form collaborative partnerships that aid innovation. Prior to the enactment of this law, universities were issued fewer than 250 patents each year. Thanks to the Bayh-Dole Act, the number of patents universities have been issued in more recent years has surpassed two thousand--adding billions of dollars annually to the US economy. The CREATE Act corrects for a provision in the Bayh-Dole Act which, when read literally, runs counter to the intent of that legislation. In 1997, the United States Court of Appeals for the Federal Circuit ruled, in Oddzon Products, Inc. v. Just Toys, Inc., that non-public information may in certain cases be considered ``prior art''--a standard which generally prevents an inventor from obtaining a patent. The Oddzon ruling was certainly sound law, but it was not sound public policy, and as a result some collaborative teams have been unable to receive patents for their work. As a consequence, there is a deterrent from forming this type of partnership, which has proved so beneficial to universities, the private sector, the American worker, and the U.S. economy. Recognizing Congress' intended purpose in passing the Bayh-Dole Act, the Federal Circuit invited Congress to better conform the language of the act to the intent of the legislation. The CREATE Act does exactly that by ensuring that non-public information is not considered ``prior art'' when the information is used in a collaborative partnership under the Bayh-Dole Act. The bill that the Senate is passing today also includes strict evidentiary burdens to ensure that the legislation is tailored narrowly so as only to achieve this goal that--although narrow--is vitally important. I also wish to draw attention to Senator Hatch's thoughtful explication of some of the more complex issues surrounding the CREATE Act. I agree entirely with his comments, which I believe will prove useful for those seeking a background understanding of this legislation. I wish to thank my colleagues for their support of this bill, and to thank in particular Senator Hatch, Senator Kohl, Senator Feingold, Senator Grassley, and Senator Schumer for their hard work in gaining this bill's passage.

Mr. LEAHY

Mr. LEAHY. Madam President, today the Senate has taken a strong step forward to encourage the distribution of music, films, books, and software on the Internet. For too long the very ease of duplication and distribution that is the hallmark of digital content has meant that piracy of that content is just as easy. The very real--and often realized--threat that creative works will simply be duplicated and distributed freely online has restricted, rather than enhanced, the amount and variety of creative works one can receive over the Internet. There is no single solution to the problem of copyright infringement. Part of combating piracy includes offering a legal alternative to it. Another important part is enforcing the rights of copyright owners. We have already taken some steps to do this. The Allen-Leahy Amendment to the Foreign Operations Appropriations Bill, on Combating Piracy of U.S. Intellectual Property in Foreign Countries, provided $2.5 million for the Department of State to assist foreign countries in combating piracy of U.S. copyrighted works. By providing equipment and training to law enforcement officers, the measure will help those countries that are not members of the OECD--Organization for Economic Cooperation & Development--to enforce intellectual property protections. The PIRATE Act represents another critically important part of the attack. It will bring the resources and expertise of the United States Attorneys' Offices to bear on wholesale copyright infringers. For too long these attorneys have been hindered in their pursuit of pirates, by the fact that they were limited to bringing criminal charges with high burdens of proof. In the world of copyright, a criminal charge is unusually difficult to prove because the defendant must have known that his conduct was illegal and must have willfully engaged in the conduct anyway. For this reason prosecutors can rarely justify bringing criminal charges, and copyright owners have been left alone to fend for themselves, defending their rights only where they can afford to do so. In a world in which a computer and an Internet connection are all the tools you need to engage in massive piracy, this is an intolerable predicament. The PIRATE act responds to this problem by allowing the United States to continue to enforce existing criminal penalties for intellectual property violations, while providing new civil copyright enforcement remedies to ensure that American creativity and expression continue to thrive. The availability of civil penalties allows prosecutors to help curtail widespread piracy, and at the same time recognizes that handcuffs for infringers is often not the appropriate response. Although we are debating several divisive issues during this Congress, I am pleased to see that we can all agree that the promise of the digital age can only be fulfilled if we empower our Federal prosecutors to protect the important rights enshrined in the Copyright Act. Senators Hatch, Schumer, Alexander and I recognize this need, and I thank them for working with me to produce this important, bipartisan piece of legislation.