Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I support the FTC's authority to establish a Do Not Call Registry, I find myself in good and widespread company. Many in the Senate, like many of my constituents in Vermont, share the frustration that I have with the recent district court decision striking down the Do Not Call Registry established at the Federal Trade Commission. Apparently we in Congress need to make things a little more clear, and this is what we are doing with this legislation: We authorize the FTC to set up and operate such a registry. Vermont has been a leader in protecting the privacy and peace of its households from unwanted telemarketing calls. Federal law currently requires individual companies to remove consumers from their calling lists if the consumers ask them to do so. There is also a national ``telephone preference service'' registry to which consumers can submit their names and which telemarketers can consult to avoid calling those who do not wish to hear from them--but industry compliance is entirely voluntary. Two years ago, Vermont enacted a law which gives consumers a private right of action against companies that continue to call after being requested to cease. Vermonters can also sue if they are called by a telemarketer after they have put their name on the national ``telephone preference service'' registry. The FTC has expressed no intention of attempting to pre-empt such state systems, and I hope that federal agencies continue to respect the efforts and institutions established at the state level. Federal agencies should not be in the business of undercutting state efforts that are pursuing these same goals. Those goals are simple and laudable. People should be able to enjoy the peace and quiet of their own homes, undisturbed by unsolicited sales calls. Of course, some consumers welcome such calls, and they certainly should be able to receive them. But for the thousands of Vermonters, and the millions of other Americans, who do not want to receive such calls, the FTC's Do Not Call Registry is a long-awaited relief. I understand that more than 50 million households have signed up, many of them, on-line, to be included in the Do Not Call Registry, which is set to begin its operations next week. This is an astonishing number of people, and this overwhelming response to the FTC's announcement is the best possible affirmation of the need for and of the good sense of the plan. The Do Not Call Registry should also appeal to enlightened telemarketers. They do not, of course, want to waste time and effort talking to people who do not wish to hear from them, for whatever reason. Once the registry is operational--and I hope that this bill will meet with speedy approval and make that so--telemarketers will be able to focus their resources, their time and personnel, on the households for which they provide a useful service. Consumers will be better served, the companies seeking to make sales will be better off, and telemarketers will be more effective for both their corporate clients and the potential customers they contact. So I urge all of my colleagues to vote in favor of this bill, H.R. 3161. The national Do Not Call Registry is a sensible way to protect the privacy of the American people. It deserves our support, and it deserves this effort to allow the registry to begin serving the public.

Mr. LEAHY

Mr. LEAHY. I yield back my time.

Mr. LEAHY

Mr. LEAHY. Madam President, I am pleased that we are now turning to the nomination of Magistrate Judge Larry Alan Burns for the Southern District of California. This well qualified nominee is the product of the exemplary bipartisan commission that Senators Feinstein and Boxer have worked so hard to maintain. It is a testament to their diligence that we have such stellar nominees heading to California's federal courts. Judge Burns has been a United States Magistrate for the past six years in San Diego. Prior to becoming a Magistrate, Mr. Burns gained significant trial experience as a State and federal criminal prosecutor. Judge Burns has also served as a mentor to disadvantaged students, assisting them in achieving their educational and career goals. He was honored for his work in this area with a Faculty Mentoring Award from San Diego State University in 1996. In addition, he has taught legal courses at both the undergraduate and graduate school levels at several San Diego universities. In light of his remarkable record of public service and trial experience, it is not surprising that the American Bar Association was unanimous in its determination that Judge Burns is ``Well-Qualified'' to be a federal district court judge. The Southern District of California the busiest federal district in the nation. Last Congress, in enacting the DOJ Reauthorization legislation, we created the seat that Judge Burns is nominated to in an effort to alleviate their staffing shortage. In light of their demanding caseload and corresponding staffing needs, the Judiciary Committee expedited nominations to the Southern District. Judge Burns was nominated on May 1, 2003 and was voted out of committee on September 4, 2003. It is unfortunate that Judge Burns and another nominee for this court have been pending on the floor all month but I am pleased that we are voting on Judge Burns today. The path of his nomination demonstrates that the fact that the Senate can act expeditiously when we receive well-qualified, consensus nominations on courts that need additional judges. Another consensus nominee for another vacancy in that district remains on the Senate executive calendar awaiting action. I implore the Senate Republican leadership to allow a prompt vote on the nomination of Dana Makoto Sabraw. I expect that vote to be unanimously in support, as well. Senator Feinstein also deserves much credit for working so hard to create these additional judgeships in the Department of Justice authorization we passed in 2002. These judgeships are among those we created for border districts that have a massive caseload and that needed more federal judges. We did what the Republican majority refused to do in the years 1995 through 2000 when there was a Democratic President, namely, create additional needed judgeships for the Southern District of California. We did so under Senate Democratic leadership with a Republican President. They have been available to be filled since July 15. The Judiciary Committee held hearings of Magistrate Judge Burns and others just before the August recess and they were unanimously reported by the Judiciary Committee at our first meeting on September 4. That was three weeks ago. In addition to the nomination of Dana Makoto Sabraw, which is already favorably reported and on the Senate executive calendar awaiting action, two more nominees to two additional vacancies recently created for the Southern District of California should be considered and reported by the Judiciary Committee tomorrow. I congratulate the California Senators on their outstanding work and this nominee and his family on this confirmation.

Mr. LEAHY

Mr. LEAHY. Mr. President, today we vote to confirm another district court nominee, to the Western District of Pennsylvania. This nominee, Mr. Kim Gibson, is currently a judge on the Court of Common Pleas in Somerset County, in Western Pennsylvania. Judge Gibson is a graduate of West Point Military Academy and graduated second in his class from Dickinson School of Law in Carlisle, PA. Over the course of his career he has served in the Army's Judge Advocate General Corps and the public defender service. Not surprisingly, the ABA gave this nominee its highest rating--unanimous ``well qualified.'' With today's confirmation, the Senate has now confirmed 154 judicial nominees for this President. As I noted this week, the current pace of confirmation stands in stark contrast to what occurred with judicial nominees during the Clinton administration. It was not until well into the fourth year of President Clinton's second term when Republicans controlled the Senate, before this many judicial nominees were confirmed. It took President Reagan, during his first term, almost to the end of his fourth year to get this many judicial nominees confirmed, and that was with a Senate that was controlled by the same party. It also took President George H.W. Bush well into his fourth year to get this many of his judicial nominees confirmed. In contrast, today, with the shifts in Senate control, it has effectively taken a little more than 2 years of rapid Senate action to confirm 154 judicial nominees for this President, including 100 during Democratic control. This year alone the Senate has confirmed 54 judicial nominees, including 11 circuit court nominees in 2003. That is more confirmations in just nine months than Republicans allowed for President Clinton in 1996, 1995, 1999, or 2000. Overall, we have confirmed 28 circuit court nominees of President Bush since July of 2001, which is more than were confirmed at this time in the third year of President Reagan's first term President George H.W. Bush's term, or either of President Clinton's terms. The Senate has held hearings for 13 Pennsylvania nominees of President Bush's to the Federal courts in Pennsylvania. While I was chairman, the Senate held hearings for and confirmed 10 nominees to the district courts in Pennsylvania, plus Judge D. Brooks Smith to the Third Circuit Court of Appeals. A look at the Federal judiciary in Pennsylvania indicates that President Bush's nominees have been treated far better than President Clinton's. Today, there is no State in the union that has had more Federal judicial nominees confirmed by this Senate than Pennsylvania. This is in sharp contrast to the way vacancies in Pennsylvania were left unfilled during Republican control of the Senate when President Clinton was in the White House, particularly regarding nominees in the western half of the State. Just a few months ago, on May 16, 2003, Jon Delano wrote in the Pittsburgh Business Times, an article titled ``Despite Bush Protests, Court Vacancies are Down,'' about how this President's nominees in the western part of Pennsylvania have been treated more fairly than President Clinton's nominees. He wrote: Take the Western District of Pennsylvania, for example. During the years of the Santorum filibuster, that court of 10 judges had as many as five vacancies. Today, the Senate has confirmed four Bush appointees--Judges Joy Contie, David Cercone, Terry McVerry, and Art Schwab--and the fifth nomination, attorney Tom Hardiman, has just been sent to the Senate. With the elevation and confirmation of Judge Brooks Smith to the U.S. Court of Appeals, the president still needs to name one more judge to the local court, but once completed, Mr. Bush, with less than three years in office, will have named--and the Senate will have confirmed--six of the 10 judges on the local federal court. That hardly sounds like obstructionism. Despite the best efforts and diligence of the senior Senator from Pennsylvania, Senator Specter, to secure the confirmation of all of the judicial nominees from every part of his home State, there were nine nominees by President Clinton to Pennsylvania vacancies who never got a vote: Patrick Toole, John Bingler, Robert Freedberg, Lynett Norton, Legrome Davis, David Fineman, Harry Litman, Stephen Lieberman, and Robert Cindrich to the Third Circuit. Despite how well-qualified these nominees were, many of their nominations sat pending before the Senate for more than a year without being considered. The record of this nominee stands in contrast to the record of many of this President's judicial nominees, particularly for circuit positions. Judge Gibson received a unanimous ``well qualified'' rating from the American Bar Association and has enjoyed a tremendous career as both a litigator and a judge. Far too many of this President's judicial nominees have limited legal experience and no judicial experience but significant partisan experience. In fact, 23 of this President's judicial nominees have earned partial or majority ``not qualified'' ratings from the ABA. Another nominees to the same court, Tom Hardiman, has significantly less litigation experience, no judicial experience and was give a partial ``not qualified'' rating by the ABA. It is also interesting to note that their local bar association, the Allegheny County Bar Association, gave the two nominees very different peer-review ratings. Judge Gibson received a rating of ``highly recommended'' for the district court position. Mr. Hardiman, however, received a rating of ``not recommended'' by the same local bar association. Certainly, the citizens of Western Pennsylvania deserve a well qualified judiciary to hear their important legal claims in Federal court. I am pleased to lend my support to Judge Gibson's nomination. He will be the 13th judicial nominee of this President confirmed to the State of Pennsylvania and the fifth judge confirmed to the Western District of Pennsylvania. I congratulate Judge Gibson and his family. Mr. President, I ask for the yeas and nays.

Mr. LEAHY. Mr. President, I yield my time to the Senator from Pennsylvania, Mr. Specter.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am not quite sure. What is the parliamentary situation?

Mr. LEAHY. Mr. President, I have listened to my friends on the other side of the aisle who have come to the Senate floor this morning to criticize the senior Senator from Massachusetts, Mr. Kennedy. Last week, Senator Kennedy, speaking for millions of concerned Americans, challenged the President and his advisers for misleading the country about the war in Iraq. Every Senator is free to disagree with the views of another Senator. That is the nature of debate. But too often, officials in this administration, and some of my Republican friends, have questioned the patriotism, and the right to disagree, of those who criticize policies they believe are fundamentally flawed. Senator Kennedy has asked hard and important questions about a policy that--contrary to what the American people were told to expect--has already resulted in the loss of life or limb of hundreds of American soldiers and is costing billions of dollars with no end in sight. The reality is that since the fall of Baghdad, practically everything the White House and the Pentagon predicted about Iraq has turned out to be wrong. Yet you would hardly know it from listening to officials in Washington who consistently give evasive and overly optimistic assessments. The administration's own shifting statements show that the threat posed by Iraq was not what we were led to believe. Just a few months ago, Vice President Cheney insisted that Saddam Hussein had reconstituted nuclear weapons. No weapons of mass destruction have yet been found. Last week, Secretary Powell said the use of chemical weapons against the Kurds was the justification for a preemptive war 15 years later. As much as I admire and respect the Secretary, that is grasping at straws. For months, the White House and the Pentagon tried mightily to draw a connection between Saddam Hussein and the attack against the World Trade Towers. Last week, the President belatedly conceded that there was no link. Vice President Cheney said our troops would be treated as liberators. I am sure that most Iraqis are grateful that Saddam Hussein is gone. I am too. But it is clear the Iraqi people increasingly don't want us there. We should all be concerned that when our soldiers--who have performed so bravely--are ambushed and killed, there seems to be increasing jubilation in the streets, and not just by the remnants of Saddam's regime. Then, there is the issue of cost. Five months ago we passed a wartime supplemental with $2.5 billion for reconstruction in Iraq. At the time, we were told that was all that U.S. taxpayers would be asked for this year. That, we have learned, was a gross miscalculation. Former-OMB Director Mitch Daniels said the total cost would be between $50 and $60 billion. Deputy Defense Secretary Wolfowitz said: We're dealing with a country that can really finance its own reconstruction, and relatively soon. The oil revenues of that country could bring between $50 and $100 billion over the course of the next two or three years. We now know those predictions were wildly off the mark. We are also paying other countries to support us. The State Department's own documents show that since April, the United States has provided almost $4 billion to coalition partners, other nations who supported our efforts in Iraq, and allies in the region. This does not include billions of dollars in loans. Now the President wants another $87 billion for Iraq. Within a year, we will have spent far more than $100 billion, and it is clear that the administration will be back for many more tens of billions of dollars before next year is out. We don't have this money in the bank. It is red ink. We are headed for a $1 trillion deficit, which will fall squarely on the backs of our children and grandchildren. That could very well be our most lasting legacy. We are spending all this money in Iraq, but there is no supplemental to help the hundreds of thousands of Americans who have lost their jobs here at home. There is no money to fix our dilapidated public schools. There is no money for health care for the millions of Americans who lack health insurance. None for low income housing for Americans living in poverty. I hope my Republican friends who have rushed here to defend the President's preemptive war and his policy of nation building, are also concerned about how much it may cost, how long it may take, and how many American troops may be needed in the years to come. They should be asking these questions too. We cannot continue to drift along, spending more than $1 billion a week, with no plan other than business as usual, no realistic time table, every week another four or five Americans killed or wounded, and the growing resentment of the Iraqi people. It is long past time to abandon the same old ``go it alone'' strategy. We need to get the international community involved. We need to work towards bringing our soldiers home sooner rather than later.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to engage the chairman and Senator Dorgan in a colloquy concerning the Rebuild America Program at the Department of Energy. The events of August have dramatically shown all of us that we need to take immediate steps to increase the reliability of our electricity grid. In Vermont, we came very close to being swept up in the blackout cascade. Our transmission grid is under increasing demand pressure. Although there are several proposals to upgrade the transmission grid, everyone recognizes that the only action we can take immediately is energy conservation. This is why I strongly support the Rebuild America Program to help bring emerging technologies to our States to improve energy efficiency in buildings. I would like to work with the chairman and Senator Dorgan to increase funding for this program to bring it closer to the Fiscal Year 2003 level.

Mr. LEAHY. I thank the chairman and Senator Dorgan. With the events of last month, Vermonters and people across the country need the information and outreach that this program provides. I strongly urge the chairman to use the conference to return this program to a level approaching its Fiscal Year 2003 funding of $12.7 million. zero energy buildings

Mr. LEAHY

Mr. LEAHY. Mr. President, today, we vote to confirm two district court nominees, United States Magistrate Judge Glen Allen Conrad and South Carolina Judge Henry Floyd. Unfortunately, we are still needlessly awaiting a vote on the judicial nominees from California, for the emergency vacancies in the Southern District, the busiest court in the country. With today's confirmations, the Senate will now have confirmed 153 judicial nominees for this President. As I mentioned last week, this pace of confirmation stands in stark contrast to what occurred with judicial nominees during the Clinton Administration. It was not until well into the fourth year of President Clinton's second term, when Republicans controlled the Senate, before this many judicial nominees were confirmed. It took President Reagan, during his first term, almost to the end of his fourth year to get this many judicial nominees confirmed, and that was with a Senate that was controlled by the same party. It also took President George H.W. Bush well into his fourth year to get this many of his judicial nominees confirmed. In contrast, today, with the shifts in Senate control, it has effectively taken a little more than 2 years of rapid Senate action to confirm 153 judicial nominees for this President, including 100 during Democratic control. This year alone the Senate has confirmed 53 judicial nominees, including 11 circuit court nominees in 2003. That is more confirmations in just 9 months than Republicans allowed for President Clinton in 1996, 1995, 1999, or 2000. Overall, we have confirmed 28 circuit court nominees of President Bush since July of 2001, which is more than were confirmed at this time in the third year of President Reagan's first term, President George H.W. Bush's term, or either of President Clinton's terms. The records of these two judicial nominees stands in contrast to the record of many of this President's judicial nominees, particularly for circuit court positions. Both Judge Conrad and Judge Floyd have significant judicial experience, with Judge Conrad serving as a Magistrate Judge for more than a quarter of a century. Far too many of this President's judicial nominees have limited legal experience and no judicial experience but significant partisan experience. I note that there are now more George W. Bush appointees on the bench than there are active George Herbert Walker Bush appointees. The President's father served 4 full years. This President has served less than 3. With these confirmations, there are no more vacancies in the district court in Virginia, as Judge Conrad joins Judge Hudson, who we confirmed last year to the district court in Virginia. Judge Floyd will join Judge Terry Wooten on the district court in South Carolina. Judge Floyd's confirmation will fill the vacancy created by the elevation of the controversial Judge Dennis Shedd last year. I congratulate Judge Conrad and Judge Floyd and their families.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to talk about a man, Kirk Noble Bloodsworth, who was the victim of a grossly imperfect system. I first met Kirk Bloodsworth in 2000 when he came to me as a man who had been exonerated after almost 9 years of wrongful imprisonment. I am proud to say that we have become close friends and partners in the fight to reform capital punishment in America. For 8 years, 11 months and 19 days, Kirk Bloodsworth served time in prison as an innocent man. And for the next 10 years, Mr. Bloodsworth lived in a jail without bars. He lived in a world where people questioned his innocence, where rumors followed him everywhere he went, and where he was unable to find stable employment. On July 25, 1984, 9-year-old Dawn Hamilton was brutally raped and murdered. Fifteen days later, Kirk Bloodsworth was arrested based on the testimony of several witnesses who said they had seen him near the spot where they found Miss Hamilton. There was no physical evidence linking Mr. Bloodsworth to the crime. In March, 1985, Mr. Bloodsworth, a former Marine with no criminal background, was convicted and sentenced to death in Maryland. He was 24 years old. Subsequently, the Maryland Court of Appeals overturned Mr. Bloodsworth's conviction. However, a second jury trial found him guilty, and sentenced him to two consecutive life terms. In 1992, at the request of Mr. Bloodsworth and his attorney, the evidence from his trial--Miss Hamilton's shirt and underpants--was tested for DNA. By June 1993, two DNA fingerprinting tests--one conducted by the Federal Bureau of Investigation and one conducted by Forensic Science Associates concluded that Mr. Bloodsworth's DNA was not the same as DNA found on Miss Hamilton's underpants. On June 28, 1993, Mr. Bloodsworth was released from prison; in December, 1993, Maryland Governor William Schaefer pardoned him; and in June, 1994, the State of Maryland awarded him $300,000 in compensation. The wheels of justice broke down in this case, but we cannot pretend that what happened to Kirk Bloodsworth was an exceptional occurrence. Mr. Bloodsworth's nightmare of wrongful conviction has been repeated again and again across the country. To date, 111 individuals convicted and sentenced to death have been released from death row with evidence of their innocence, according to the Death Penalty Information Center. Today Mr. Bloodsworth is outspoken about the importance of making post-conviction DNA testing available to defendants with a credible claim of innocence, something I have fought hard to accomplish as part of the Innocence Protection Act. People of good conscience can and will disagree on the morality of the death penalty. But we can all agree that a system that sentences innocent persons to death has no place in a civilized society, much less in 21st century America. While DNA testing freed Mr. Bloodsworth from prison in 1993, the test results did not convince everyone that Kirk Bloodsworth was not guilty. Prosecutors refused to lift the veil of suspicion over him, in effect saying that the DNA tests might be sufficient to undermine his conviction, but not to prove his innocence. Mr. Bloodsworth told the Baltimore Sun that he spent years asking the county to run the DNA found on Dawn Hamilton's clothing through the State DNA database. Finally, last week, the State ran the DNA evidence through its database and the black cloud that had followed Mr. Bloodsworth for 10 years was lifted. On September 5, 2003, Mr. Bloodsworth was told that the State tests implicated Mr. Kimberly Shay Ruffner, a convicted sex offender, as the rapist and murderer of Dawn Hamilton. Mr. Ruffner has now been charged with first-degree murder. The prosecutor who previously refused to acknowledge Mr. Bloodsworth's innocence went to his home to apologize to him. I know that I am joined by many others when I say that I am delighted that Mr. Bloodsworth can finally feel truly free. His fight to prove his own innocence has been won. I am certain that he will continue with his efforts to fix the broken machinery of capital punishment in America and especially to assist others who experienced wrongful conviction. I ask unanimous consent that a Baltimore Sun article detailing the recent events in Mr. Bloodsworth's case be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, we vote to confirm 5 district court nominees, including 4 nominees to the U.S. district courts in New York. With today's confirmations, the Senate will now have confirmed 151 judicial nominees for this President. This stands in stark contrast to what occurred with judicial nominees during the Clinton administration. More than 3 years passed during President Clinton's second term, when Republicans controlled the Senate, before the 150th judicial nominee was confirmed. It also took more than three years from when the Republicans gained control of the Senate majority in 1995 to confirm 150 judges for President Clinton. Moreover, this President's nominees have been considered more expeditiously than were his father's or President Reagan's. It took President Reagan, during his first term, almost to the end of his fourth year to get 150 of his judicial nominees confirmed, and that was with a Senate that was controlled by the same party. President Reagan's 150th judicial nominee was not confirmed until September 17, 1984. It also took President George H.W. Bush well into his fourth year to get 150 of his judicial nominees confirmed. His 150th judicial nominee was not confirmed until April 8, 1992. In contrast with the shifts in Senate control, it has effectively taken just 2 years of rapid Senate action to confirm 150 judicial nominees for this President. The fast and fair pace at which this Senate has considered this President's nominees is also demonstrated by how many circuit court nominees have been confirmed. We have now confirmed 28 circuit court nominees for President Bush since July of 2001, which is more than were confirmed at this time in the third year of President Reagan's first term, President George H.W. Bush's term, or either of President Clinton's terms. In contrast to how President Clinton's nominees were treated, the confirmation process for these 5 district court nominees has been expeditious and smooth. The 4 New York nominees come to us with broad bipartisan support, including the support of their two home-state Senators. Their confirmations today show how cooperation can work to fill vacancies on the Federal bench with qualified, experienced and diverse candidates. All four New York nominees were given hearings at the end of July under an agreement that allowed them to be on a hearing on an expedited basis. This was an example of how the Democratic members of the Judiciary Committee cooperated with the President and with the Committee's Republican majority. Given the nominees' bipartisan support, I expect them to be unanimously confirmed today. New York is an example of how a bipartisan process can work right to equip the Federal bench with excellent and moderate judges. All 4 of these nominees have impressive legal careers, and received the highest rating from the American Bar Association. Justice Feuerstein, nominated to the Eastern District of New York, currently serves as a justice in the New York State Appellate Division and has served as a judge in the New York State court system for approximately 15 years. Justice Feuerstein also has a distinguished record of service as a judge beyond her work on the bench, including serving as director of the Nassau County Bar Association and as president of the Women's Bar Association of the State of New York. Mr. Castel, Mr. Holwell, and Mr. Robinson, nominated to the U.S. District Court for the Southern District of New York, all have significant litigation experience as well as commendable records of providing legal services to disadvantaged persons. Peter Castel is currently a partner at Cahill Gordon & Reindel and has litigated there for over 20 years. Among other civic activities, Mr. Castel has served on the board of directors for the Legal Aid Society. Richard Holwell has been practicing for over 31 years as a litigation attorney with White and Case in New York, where he has served as executive partner of the global litigation practice and a member of the firm's management board. He has dedicated hundreds of hours to pro bono activities every year, and received a Pro Bono Award from the NAACP Legal Defense and Education Fund for his services. Stephen Robinson has significant experience in litigation and investigations. He served as the first African-American U.S. Attorney for Connecticut, appointed by former President Clinton, from 1998 to 2001. Prior to that, he had served as a litigator in private practice, as an Assistant U.S. Attorney in the Southern District of New York, and as a counsel and special assistant to the Director of the FBI. Mr. Robinson has also served as secretary and a member of the board of directors of MFY Legal Services, an organization that provides legal services to the poor. David Proctor is nominated to the U.S. District Court for the Northern District of Alabama, and comes to us with experience as a private practice attorney and the support of both of his home-state Senators. Mr. Proctor is filling a new position that was just created on July 15, 2003. Finally, I would like to point out that there are now more active George W. Bush appointees on the bench than there are active George Herbert Walker Bush appointees. The President's father served 4 full years. This President has served less than 3 and already has made as much impact on the Federal courts across the country. We are glad that the Republican leadership has now agreed to confirm these consensus nominees. We have and will continue to work with the Republican leadership and Administration. We would like to be more helpful in the President's identification of nominees and advising him on the selection of consensus nominees so that we can join together in adding those confirmations to the 151 achieved as of today.

Mr. LEAHY

Mr. LEAHY. If we are going to have more votes, we might as well go ahead.

Mr. LEAHY. Madam President, if the distinguished Democratic leader and the distinguished Republican leader do not intend to have any more rollcall votes, I certainly am not going to ask for any more rollcall votes on the remaining judges.

Mr. LEAHY. Madam President, if I may respond to my friend from South Dakota, I assured the distinguished Senators from New York and the distinguished Senators from Alabama that we would have support on the Alabama judge, which we just voted on, and the next one is from New York, and we would get them confirmed. I have been asked by a number of Senators, both Republicans and Democrats, because of the weather, if there is a possibility to just have this next rollcall vote and do the remaining three by voice vote. I would have no objection. Would that be the last vote of the day?

Mr. LEAHY. Madam President, I yield to the senior Senator from New York. These next four nominees come here with bipartisan support. As a result, they went through very quickly.

Mr. LEAHY. Why don't we go forward with this vote. If the decision is made that there will be no further rollcall votes while we are voting on this next nomination, then I will not ask for rollcall votes on the remaining three nominations.

Mr. LEAHY. The Senator from South Dakota has the floor.

Mr. LEAHY

Mr. LEAHY. I yield back the remainder of my time.

Mr. LEAHY. Madam President, I support the nominee who has been addressed by the Senator from Alabama. I yield back the remainder of my time and ask for the yeas and nays.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Federal Communications Commission's rules pertaining to media ownership have long served a vital function, helping to ensure a diversity of viewpoints in the media marketplace. The FCC's attempt to undo these important rules that have served us so well is misguided and harmful. The FCC's 35 percent cap on national audience reach has not only served to promote diversity, it also protects local programming, allowing it to reflect local values and preferences. If the cap is increased to 45 percent we can be sure that major networks will meet or exceed the new threshold, as some companies have done under the current standards, allowing for the acquisition of local stations while eliminating the unique choices that local programming can provide. I am also concerned about the FCC's effort to remove the newspaper/ broadcast cross-ownership limitations in 80 percent of all media markets. Currently, cross-ownership rules prevent a single corporation from becoming too powerful a voice in a given community. Lifting the cross-ownership ban will leave many communities reliant on one company to decide what they are able to see and hear. There are those who argue that the increase in the number of media outlets has obviated the need for such rules. The reality, of course, debunks this notion. While the number of media outlets has increased, ownership has become more concentrated. What's more, many of the largest new media outlets appear to be owned and controlled by the same conglomerates that control traditional media. In light of these facts, it seems illogical that the FCC would exacerbate a disturbing trend that is transforming the marketplace of ideas into little more than a corporate superstore. A recent, troubling tendency of the large media companies was highlighted in The Wall Street Journal this week in an article noting these companies' rapid acquisitions of cable channels to ``re-create the old programming oligopoly'' of the pre-cable era. The numbers tell the story. Of the top 25 cable channels, 20 are now owned by one of the big five media companies, according to The Wall Street Journal article of September 15, 2003. The unsettling statistics extend to other communications branches as well. According to the Economic Policy Institute, the number of owners of commercial radio stations has declined by approximately 25 percent since 1996. Even more alarming is the fact that since 1995, ``the number of entities owning commercial TV stations has dropped by 40 percent.'' I welcome and strongly encourage the emergence and proliferation of new and different platforms for news and information. We can expect that more and more Americans will gain access to and will use these resources. In our democratic society, there still are good and sound reasons for encouraging and protecting the diversity of viewpoints available in more traditional media. The FCC--to which the American people have entrusted some of this responsibility--should be working to diversify, not homogenize, the news and information media available to the American public. I ask the Wall Street Journal article of September 15, 2003, be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier this month the President withdrew the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Colombia Circuit. This was a nomination for a lifetime appointment to the second highest court in the land. The Constitution accords the Senate the duty to make informed judgments for these lifetime appointments to our Federal courts. Senators cannot make informed judgments if the White House stonewalls the Senate. This withdrawn nomination is another example of the White House's insistence on dividing instead of uniting the American people over the President's decisions for the Federal courts. Ultimately, the nomination was a casualty of that divisive policy. For more than a year, the White House has consistently spurned many private and public bipartisan appeals to resolve this matter by working with the Senate to provide access to requested information. Mr. Estrada's work at the Justice Department was at the core of the administration's claims for his qualification to serve on this court. Despite the questions raised about his work at the Justice Department and the ample precedents from similar document requests involving earlier nominations, this administration decided to stonewall the Senate. This stonewalling, combined with Mr. Estrada's reluctance to answer substantively Senators' questions, prompted this impasse. The White House always had the key to unlock this stalemate. In the absence of cooperation from the White House, and with the persistence of the White House's stonewalling, Mr. Estrada has concluded that this impasse will continue. He is probably right, and he and his family can now move on with their lives. In the aftermath of the announcement on September 4, some Republican Members of the Senate have come to the Senate floor and sought out the airwaves to renew their offensive and untrue rhetoric about this nomination. I must take a few moments to set the historical record straight. First, some Republicans have repeated their false assertion that Democrats opposed Mr. Estrada's nomination because of his ethnicity. That is absurd. In the last Congress, Senate Democrats swiftly acted to confirm six Latino judicial nominees--Christina Armijo, NM; Judge Phillip Martinez, TX; Randy Crane, TX; Judge Jose Martinez, FL; Magistrate Judge Alia Ludlum, TX; and Jose Linares, NJ. During this Congress, Democrats have unanimously supported the confirmation of six other Latino judicial nominees--Edward Prado, Fifth Circuit; Consuelo Callahan, Ninth Circuit; S. James Otero, CA; Cecilia Altonaga, FL; Xavier Rodriguez, TX; and Frank Rodriguez Montalvo, TX. All of these nominees received the unanimous support of the Senators in the Democratic caucus. Moreover, it was Democrats who worked to clear the nominations of Judge Prado and Judge Callahan to the circuit courts over delays and initial objections from the Republican side of the aisle. Yet some Republican Senators assert that those who opposed Mr. Estrada's confirmation to the circuit court did so ``because he's Hispanic.'' That is obviously false, demeaning and divisive. These partisans may need to be reminded that, in addition to supporting the confirmation of two other Latinos nominated to the appellate courts by President Bush, Democrats supported the appointment of 11 Latinos nominated by President Clinton to the appellate courts. It was Republicans who blocked three of those Latino circuit court nominees of President Clinton. Those qualified and distinguished Latino nominees were never given hearings by the Republican majority and never allowed to come before the full Senate. They were not opposed through debate and votes in the light of day; instead, their nominations were filibustered and killed by delay, in the dark of night, without any meaningful explanation of any substantive concerns about their nominations. This all begs the rhetorical question: Do the current Republican charges mean that Republicans are anti-Hispanic for having blocked three Hispanic nominees to the circuit courts and for having opposed, delayed and voted against numerous others nominated by President Clinton? The facts are clear and the facts are indisputable, and the facts belie the false charges that we have heard from some on the other side of the aisle. Republicans blocked three Latino nominees of President Clinton to the appellate courts from ever receiving a vote: Enrique Moreno, who was nominated to the 5th Circuit; Jorge Rangel, who was nominated to the 5th Circuit; and Christine Arguello, who President Clinton nominated to the 10th Circuit. In addition, Republicans refused to allow votes on three of President Clinton's Hispanic district court nominees, Ricardo Morado, R. Samuel Paz, and Anabelle Rodriguez. Republicans did not allow a hearing or a vote in the Judiciary Committee or on the floor in a cloture vote or confirmation vote on any of these six Latino nominees. I will include for the Record a letter from Judge Rangel, a well-regarded nominee of President Clinton, who never received a confirmation vote from the Republican majority at that time. Republicans did not just block those six Latino judicial nominees of President Clinton from receiving votes, they also dragged their feet on the confirmation of others who were left pending for a long time, often without any public statements identifying the concerns that were delaying those nominees, in contrast to Mr. Estrada's nomination which has been debated in the light of day. When they unsuccessfully filibustered Judge Rosemary Barkett and Judge Richard Paez, were they doing so because the nominees were Hispanic? When they delayed and opposed the confirmation of Judge Sonia Sotomayor, do recent Republican statements mean that they did so because she is Hispanic? Overall, during President Clinton's tenure, 10 of his more than 30 Hispanic nominees were delayed or blocked from receiving hearings or votes by Republican leaders. The Hispanic judicial nominees denied a vote by Republicans are Moreno, Rangel, Arguello, Morado, Paz, and Rodriguez. The four Hispanic judicial nominees delayed but ultimately confirmed over Republican opposition are Judges Richard Paez, a Mexican-American nominated to the Ninth Circuit; Judge Hilda Tagle, a Mexican-American nominated to the Texas district court; Judge Rosemary Barkett, an immigrant from Mexico nominated to the Eleventh Circuit; and Judge Sonia Sotomayor, whose family hails from Puerto Rico. Of these 10, three waited more than 2 years to receive a vote or were never accorded one. Republicans delayed consideration of the nomination of Judge Richard Paez for more than 1,500 days yes, that is correct, more than 1,500 days and then when he finally did get a vote, 39 Republicans voted against his confirmation to the Ninth Circuit. He was unsuccessfully filibustered by Republicans. Senator Sessions moved to indefinitely postpone the vote after we overcame the Republican filibuster, after Judge Paez had been waiting for more than 4 years, and 31 Republicans voted with Senator Sessions on that motion after their filibuster failed. Of course, now Republicans have the temerity to assert that it is unprecedented to filibuster a circuit court nomination. What short memories they must believe the American people have. I discussed this in more detail in the Congressional Record of February 10, 2003. The nomination of Judge Hilda Tagle to a District Court seat in Texas was pending before the Senate for 943 days, before Republicans finally allowed her a vote on the floor of the Senate. After failing to defeat her nomination through anonymous delay, not a single Republican explained the delay. Republican delays such as these on Clinton nominees are discussed in more detail in my statements published in the Congressional Record on May 1, 2003, as well as in statements about Mr. Estrada's nomination by Senator Reid, Senator Kennedy, Senator Schumer and others. I hope these facts will finally put to rest the untruths that have been manufactured and perpetrated to attack those who opposed the confirmation of Miguel Estrada. For Republicans to claim that those who opposed the Estrada nomination were motivated by anti-Hispanic sentiment is wrong. It is offensive, base and baseless. Indeed, I have spoken about the extensive opposition to the Estrada nomination from Hispanic leaders and organizations. That opposition of Latino leaders from around the country who opposed the Estrada nomination included our colleagues in the Congressional Hispanic Caucus, CHC. According to the CHC scorecard, Mr. Estrada failed most of the factors for their evaluation of judicial nominees. Furthermore, Mr. Estrada told members of the Caucus: [H]e has never provided any pro bono legal expertise to the Latino community or organizations. Nor has he ever joined, supported, volunteered for or participated in events of any organizations. Nor has he ever joined, supported, volunteered for or participated in events of any organization dedicated to serving and advancing the Latino community. As an attorney working in government and the private sector, he has never made efforts to open doors of opportunity to Latino law students or junior lawyers . . . [and] he never appealed to his superiors about the importance of making such efforts on behalf of Latinos. These are just a few of the concerns raised by the Members of the CHC, which are detailed in several statements I have made, including my statements in the Congressional Record on February 5, 2003; February 10, 2003; February 24, 2003; February 25, 2003; as well as on July 30, 2003. Mr. Estrada was also opposed by the Puerto Rican Legal Defense and Education Fund, PRLDEF, a national civil rights organization concerned with advancing the civil and human rights of the Latino community. After interviewing Mr. Estrada, like the CHC, and also reviewing his public record and his reputation, PRLDEF concluded that Mr. Estrada was not sufficiently qualified for a lifetime seat on the nation's second highest court and that, among other concerns about his poor temperament for the job, ``he has not had a demonstrated interest in or any involvement with the organized Hispanic community or Hispanic activities of any kind.'' Their letter was included in the Congressional Record and discussed on the dates I just noted. I also included for the Congressional Record, the serious concerns raised by the Mexican American Legal Defense and Education Fund, MALDEF, and California La Raza Lawyers, CLRL, which also opposed Mr. Estrada's confirmation. They wrote: [I]t is unclear whether he would be fair to Latino plaintiffs as well as others . . . we found evidence that suggests he may not serve as a fair and impartial jurist on allegations brought before him in the areas of racial profiling, immigration, and abusive or improper police practices where those practices are adopted under a 'broken window theory' of law enforcement . . . We have concerns about whether he would fairly review standing issues for organizations representing minority interests, affirmative action programs or claims by low-income consumers. We are also unsure, after a careful view of his record, whether he would fairly protect labor rights of immigrant workers or the rights of minority voters under the Voting Rights Act. In the Congressional Record of February 24, 2003, I also included the announcements of the opposition to this nomination by most of the past Presidents of the Hispanic National Bar Association. In the face of the facts about our confirmation of a dozen Hispanic candidates nominated by President Bush to the circuit or district courts and the breadth and depth of the opposition of most of the Latino civil rights groups, it is astonishing that Republicans continue to assert that those who oppose Mr. Estrada's confirmation are anti-Hispanic. That is such an outright and obvious untruth. Yet we see some of these untruths recycled again and again in news reports and commentaries, despite the facts. These baseless allegations for purposes of wedge politics and partisan advantage are wrong and dangerous. The facts are that of the 12 Latino appellate judges currently seated on the Federal courts, eight were appointed by President Clinton and two, Judges Prado and Callahan, were nominated by President Bush and confirmed with unanimous Democratic support. I discussed the problems with the Estrada nomination in contrast to the nominations of Judge Prado and Judge Callahan in the Congressional Record of April 28, 2003 and May 22, 2003, respectively, as well as in contrast to less controversial district court nominees on March 27, 2003, March 31, 2003, and May 6, 2003. I have included in the record almost seven dozen editorials or commentaries in opposition to the Estrada nomination or in support of the Democratic filibuster. Those editorials were mentioned in the Congressional Record on March 6, 2003, and April 2, 2003. At the end of my remarks today, I will include excerpts from additional editorials and op-ed columns in opposition to the Estrada nomination or in support of the Democratic filibuster of this nomination. In particular, I note the editorial of The New York Times this week entitled, ``Straight Talk on Judicial Nominees.'' On the issue of the history of the use of filibusters in connection with nominations, some Republicans would now have the public believe that a filibuster of a nominee is, in their words, ``unprecedented.'' This is another deception. As some of these same Republicans well know, they filibustered the nominations of Judge Paez and Judge Berzon on the floor of the Senate in 1999 and 2000, as they conceded at that time. By way of example, I note that several Republicans currently serving voted against cloture, the motion to close debate, after the Paez nomination had been pending before the Senate for more than four years. I have already noted that even after losing the cloture vote, Republicans led by Senator Sessions moved to indefinitely postpone a vote on Judge Paez's nomination, and a number of Republican Senators currently serving voted to continue to block action on the Paez nomination in 2000. Yet some Republican Senators now claim that it is unprecedented to filibuster or deny a circuit court nominee an up or down confirmation vote on the Senate floor. Their filibuster of Judge Paez's nomination is just one example of Republican filibusters of Democratic nominees. Others include Dr. David Satcher to be Surgeon General in 1998; Dr. Henry Foster to be Surgeon General in 1995; Judge H. Lee Sarokin to the Third Circuit in 1994; Ricki Tigert to the Federal Deposit Insurance Corporation in 1994; Derek Shearer to be an Ambassador in 1994; Sam Brown to an ambassador- level position in 1994; Rosemary Barkett, born in Mexico, nominated to the Eleventh Circuit, 1994; Larry Lawrence, to be ambassador in 1994; Janet Napolitano at the Justice Department in 1993; and Walter Dellinger to be Assistant Attorney General for the Office of Legal Counsel at the Justice Department in 1993. The nominations of Dr. Foster and Mr. Brown were successfully filibustered on the Senate floor by Republicans. Similarly, the nomination of Abe Fortas by President Lyndon B. Johnson to the Supreme Court of the United States was successfully filibustered by Republicans with help from some southern Democrats. In addition, to the short-term and life-time appointees of Democrats whose nominations were subject to sometimes fatal delay on the floor, Republicans made an art form of killing nominations in Committee so that they would never have a vote on the floor. According to the public record, more than 60 of President Clinton's judicial nominees were defeated by willful refusal to allow them a vote and more than 200 executive branch nominees of President Clinton met the same fate, including several Latinos, with their nominations nixed in the dark of night without any accountability. They were filibustered and never allowed a vote on the Senate floor. I discussed this history in more detail on February 26, 2003, in the Congressional Record. In addition, in the Congressional Record on March 5, 2003, March 11, 2003, and March 13, 2003, I summarized the history of filibusters of nominees. I also spoke on May 19, 2003, about the history of Senate debate and the constitutionality of Rule XXII of the Senate rules. The fact of the matter is that many nominees have been blocked from receiving votes throughout the Senate's history. For example, 25 Supreme Court nominees were not confirmed in the history of our Nation. Eleven of those nominations were defeated by delay, not by confirmation votes on the Senate floor, including the nomination of Justice Fortas. Since the early 19th Century, nominees for the highest court and to the lowest short-term post have been defeated by delay, while others were voted down. Not even all of President Washington's nominees were confirmed or those of other presidents, often for political or ideological reasons. Filibusters and other parliamentary tactics to delay matters were known to the Framers. There was even a filibuster in the first Congress over locating the capital. The plain truth is that Democrats opposed the nomination of Mr. Estrada to the DC Circuit based on serious and legitimate concerns regarding the stonewalling of the Senate by this White House and this nominee. The DC Circuit is the nation's second most important court, because it has exclusive or special jurisdiction over a broad array of far-reaching federal regulations, such as the rights to safe workplaces, fair employment practices, clean air and water, and other important laws--areas with which Mr. Estrada had very little experience. Republicans lean heavily on the rating of the ABA, a group that Republicans helped oust from the pre-nomination process and a group which ever since then has sometimes seemed overly eager to get back into their good graces. Yet, as Senator Reid noted in the Congressional Record in February and March of this year, there were certainly irregularities in the rating given to this nominee by the American Bar Association, with the person who recommended a well qualified rating working closely with the Bush administration on high- level appointments and co-founding the Committee for Justice to run attack ads against Democrats, while still serving on the ABA rating committee. Other nominees with similar records did not receive the high rating Mr. Estrada did, in this or past administrations. In fact, people with similar records received partial not qualified ratings, when the process was conducted more fairly and with more candor, and when the candidate did not already have the imprimatur of the President through his nomination. I would also note that before the hearing on the Estrada nomination, Federalist Society insiders gave a special seminar on how to get through the confirmation process and urged President Bush's judicial nominees to say as little as possible. Mr. Estrada appears to have followed those marching orders to a ``T'' and to his own detriment. During the hearing on his nomination he often refused to answer questions or provided evasive answers. He declined to share his views on important Supreme Court cases and his judicial philosophy. For example, Senator Schumer asked Mr. Estrada to name a single case from the entire history of Supreme Court law that he disagreed with, Mr. Estrada refused. He claimed he could not comment on any case if he had not read the briefs, listened to oral argument, done independent research and conferred with colleagues. Most who knew Mr. Estrada personally seemed to agree that he was actually a very opinionated person. He admitted in his testimony that he could be ``ruthless'' in his criticism of legal and political opinions. Yet, before the Senate Judiciary Committee, he would not describe those views and claimed to have no views he could or would share with the only people entrusted with reviewing his record and recommending his nomination for a lifetime job on the Federal bench. Then Republicans even tried to assert that it would be unethical for Mr. Estrada to answer questions by Senators. However, the Supreme Court held in 2001 that it does not violate judicial ethics for judicial candidates to comment on legal issues, as long as they do not promise how they will rule. Ironically it was the Republican Party that had sued the State of Minnesota to ensure that their candidates for judicial office could give their views on legal issues without violating judicial ethics, the State counterpart to the ABA model rule. Republicans took the case all the way to the Supreme Court and won. In an opinion by Justice Scalia, the Supreme Court ruled that the ethics code did not prevent candidates for judicial office from expressing their views on cases or legal issues. Justice Scalia said that anyone coming to a judgeship is bound to have opinions about legal issues and the law, and there is nothing improper about expressing them. Specifically, in Republican Party of Minnesota v. White, 122 S. Ct. 2528 (2002), the Supreme Court overruled ABA modeled restrictions against candidates for judicial office from expressing their views on legal issues while seeking judicial office. Justice Scalia explained in that majority opinion: Even if it were possible to select judges who do not have preconceived views on legal issues, it would hardly be desirable to do so. ``Proof that a Justice's mind at the time he joined the Court was complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.''. . . And since avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the ``appearance'' of that type of impartiality can hardly be a compelling state interest either. Id. at 2536 (quoting Justice Rehnquist's opinion in Laird v. Tatum, 409 U.S. 824 (1972)). Judicial ethical rules do not prevent Senators from learning about a judicial candidate's views. Senators are trying to evaluate whether a nominee should be given a lifetime position, and the Senate hearing room should not be the only place where a judicial candidate cannot or will not discuss his views of the law and his opinions. Especially problematic was the stand taken by the administration on the Senate's request to examine the memoranda written by Mr. Estrada at the Justice Department. Because Mr. Estrada has no record and because his impartiality was called into question by one of his direct supervisors at the Justice Department, these memoranda would have provided important insights into Mr. Estrada's approach to issues involving individual rights and the weight of precedent. I discussed the precedent for this request in my remarks reprinted in the Congressional Record of February 5, 2003; February 12, 2003; February 13, 2003; March 5, 2003; March 18, 2003; and May 8, 2003. Senator Durbin and Senator Kennedy also addressed this issue at length in their remarks. History makes clear that internal legal memos were requested and provided to the Senate in connection with, among others, the nominations of Robert Bork to the Supreme Court, Brad Reynolds to be Associate Attorney General, William Rehnquist to the Supreme Court, Stephen Trott to the Ninth Circuit, and Ben Civiletti to be Attorney General. In each of these appointments, internal legal memos to or from the nominees were requested and provided to the Senate. Basically, the Bush administration's response to our request has been contemptuous from the beginning. The initial response of the Justice Department was that the request was unprecedented. That is abundantly inaccurate. This administration has itself shared White House Counsel records in connection with a nomination. There is simply no legal or historical basis for denying the Senate access to the memoranda requested here. The historical precedent for the Senate's request actually supports it. Scores of legal memos to and from Robert Bork when he was Solicitor General were provided to the Senate during his judicial nomination. Walter Dellinger himself advised the Senate during Justice Rehnquist's judicial nomination when he reviewed memos provided to the Senate by the Justice Department which were written by and to Rehnquist when he was the head of the Office of Legal Counsel. Indeed, the long-standing policy of the Justice Department, prior to this administration, regarding Congressional requests for memos and other non-public information was a ``policy of accommodation.'' Former administrations cooperated with countless requests for internal documents sought by Members of Congress as well as more recently by Kenneth Starr, who sought and obtained documents containing the advice of the President's attorneys and closest advisors. The administration also objected that some other Justice Department attorneys who have been nominated to other positions were not the subject of memo requests. However, they fail to acknowledge that those nominees were not the subject of allegations by their supervisor of many years that they could not keep their ideological views out of their memos and their work for the Department, unlike Miguel Estrada. The fact that the Senate does not always request such memos does not diminish its power to do so and the precedent to request such documents when Senators believe it is important to examine them. Indeed, the Senate would be abdicating its responsibilities to serve as a check on nominations if it had ignored the serious concerns raised about Mr. Estrada's writings before giving him a lifetime appointment as a judge with immense power over the lives of all Americans. Mr. Estrada told the Senate that he was proud of his writings and that he did not object to their being shared with the Senate but the administration refused every attempt at compromise. Additionally, as Republicans readily admitted when a Democrat was in the White House, it has been the long- standing practice of the Senate not to recognize attorney-client, work- product, or deliberative process privilege claims. As for the generic claim that people working for the federal government in the Solicitor General's office would be chilled from candidly expressing their views, it seems unlikely that Mr. Estrada was chilled by the revelation of legal memoranda during the Bork, Rehnquist, Trott and Reynolds nominations in the few years before he joined the Solicitor General's office. Indeed, as the Supreme Court noted in the Nixon tapes case, it is quite unlikely ``that advisors will be moved to temper the candor of their remarks by the infrequent occasions of disclosure.'' U.S. v. Nixon, 418 U.S. 683 at 712, 1974. Thus, while the desire for candor in the Executive Branch may be strong, it is not an absolute right against disclosure in response to requests from a co-equal branch pursuant to its express powers under the Constitution. In my previous statements on the floor of the Senate about the document request, I have put into the record numerous examples of legal memos provided to the Senate by other administrations, so I will not list them again. I will only say that it is clear to me and other Senators who have examined the record or remember the history that past requests of the Senate for legal memos from the Justice Department were honored, that many of these memos involved decisions about appealing cases or other significant legal or policy issues, that these memos were written by line attorneys to the Solicitor General as well as by the Solicitor General or Assistant Attorney General, that some memos were provided on a confidential basis while others were made public and placed in hearing records and other congressional documents, and that all these claims about this request being unprecedented are just so much false rhetoric. Congress was not required to stumble in the dark in connection with other nominations where memos were sought, and I am glad that the Senate did not cave in here, despite all of the attacks, intimidation and false claims the Bush administration and its allies have made. In sum, this administration treated the concerns of members of this co-equal branch with contempt at nearly every turn. As I stated at the outset of this debate, I would have welcomed a record on which I could have had strong confidence about the type of judge Mr. Estrada would be. Senators were denied adequate information to make an informed judgment about whether to entrust this nominee with the powerful position to which he was nominated. As I mentioned in the Congressional Record of July 30, 2003, it is regrettable that this Administration did not choose to cooperate and act in good faith in this nomination and instead sought to use this nominee as a pawn in its high stakes game of wedge politics. I am certain that this process must have been a difficult one for Mr. Estrada and his family. It is too bad that White House and Justice Department advisors did not follow the approach they took with another Bush nominee, Jeffrey Holmstead who was nominated to the EPA, and whose White House Counsel's Office memos this very administration shared with the Senate in order to accommodate the concerns of Senators. Instead, the Administration ignored precedent and common sense in stonewalling the Senate, ignored the suggestions of compromise by Republican and Democratic Senators, and chose the path and the tactics of unilateralism. As I mentioned, earlier this year, on March 6, and April 2, 2003, I placed into the record excerpts from 45 editorials and 34 op-eds in support of the position of Democratic Senators on the nomination of Mr. Miguel Estrada's nomination to the Court of the Appeals for D.C. Circuit, because Republicans had been asserting that there were only a few editorials or op-eds in support of our concerns. Here are some excerpts from 14 additional editorials or op-eds expressing concerns about Mr. Estrada's nomination, bringing the total to nearly 100. This controversial nomination clearly divided, rather than united, the American people. I ask unanimous consent to print in the Record excerpts of 11 recent editorials and 3 op-eds, as well as the New York Times piece entitled ``Straight Talk on Judicial Nominees.''

Mr. LEAHY. I ask unanimous consent to print the following correspondence from Jorge C. Rangel which I earlier referenced.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY. Mr. President, we remember the victims of the attack on this country 2 years ago today. Last year, Congress held a special session in New York on this day. As part of those proceedings, the poet laureate of the United States, Billy Collins, read a poem written for the occasion entitled ``The Names.'' He dedicated it to the victims of September 11 and to their survivors. I believe it appropriate to reread that poem again here today: The Names Yesterday, I lay awake in the palm of the night. A fine rain stole in, unhelped by any breeze, And when I saw the silver glaze on the windows, I started with A, with Ackerman, as it happened, Then Baxter and Calabro, Davis and Eberling, names falling into place As droplets fell through the dark. Names printed on the ceiling of the night. Names slipping around a water bend. Twenty-six willows on the banks of a stream. In the morning, I walked out barefoot Among thousands of flowers Heavy with dew like the eyes of tears, And each had a name-- Fiori inscribed on a yellow petal Then Gonzalez and Han, Ishikawa and Jenkins. Names written in the air And stitched into the cloth of the day. A name under a photograph taped to a mailbox. Monogram on a torn shirt. I see you spelled out on storefront windows And on the bright unfurled awnings of this city, I say the syllables as I turn a corner-- Kelly and Lee, Medina, Nardella, and O'Connor. When I peer into the woods, I see a thick tangle where letters are hidden As in a puzzle concocted for children. Parker and Quigley in the twigs of an ash, Rizzo, Schubert, Torres, and Upton. Secrets in the boughs of an ancient maple. Names written in the pale sky. Names rising in the updraft amid buildings. Names silent in stone Or cried out behind a door. Names blown over the earth and out to sea. In the evenings--weakening light, the last swallows. A boy on a lake lifts his oars. A woman by a window puts a match to a candle, And the names are outlined on the rose clouds-- Vanacore and Wallace, (let X stand, if it can, for the ones unfound) Then Young and Ziminsky, the final jolt of Z. Names etched on the head of a pin. One name spanning a bridge, another undergoing a tunnel. A blue name needled into the skin. Names of citizens, workers, mothers and fathers, The bright-eyed daughter, the quick son. Alphabet of names in green rows in a field. Names in the small tracks of birds. Names lifted from a hat Or balanced on the tip of the tongue. Names wheeled into the dim warehouse of memory. So many names, there is barely room on the walls of the heart. Our thoughts and prayers are first and foremost with all those who sacrificed their lives on September 11 2 years ago.