Patrick Leahy

Mr. LEAHY

Mr. LEAHY. The ABA's evaluation also indicates concern about this nomination. Their Standing Committee on the Federal Judiciary gave Mr. Pryor a partial rating of ``not qualified'' to sit on the Federal bench. Of course this is not the first ``not qualified'' rating or partial ``not qualified'' rating that this administration's judicial nominees have received. As of today, 20 of President Bush's nominees have received some form of ``not qualified'' rating. Perhaps that is a reflection of the ideological basis for so many of these nominations, and the concern on the part of some on what has been a rather compliant ABA committee that these nominees cannot be fair to every litigant who may come before them. Like Jeff Sutton, Bill Pryor has been a crusader for the federalist revolution, but Mr. Pryor has taken an even more prominent role. Having hired Mr. Sutton to argue several key federalism cases in the Supreme Court, Mr. Pryor is the principal leader of the federalist movement, promoting state power over the Federal Government. A leading proponent of what he refers to as the ``federalism revolution,'' Mr. Pryor seeks to revitalize State power at the expense of Federal protections, seeking opportunities to attack Federal laws and programs designed to guarantee civil rights protections. He has urged that Federal laws on behalf of the disabled, the aged, women, minorities, and the environment all be limited. He has argued that the Federal courts should cut back on the protections of important and well-supported federal laws including the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Civil Rights Act of 1964, the Clean Water Act, the Violence Against Women Act, and the Family and Medical Leave Act. He has repudiated decades of legal precedents that permitted individuals to sue States to prevent violations of Federal civil rights regulations. Mr. Pryor's aggressive involvement in this ``federalist revolution'' shows that he is a goal-oriented, activist conservative who has used his official position to advance his ``cause.'' Alabama was the only State to file an amicus brief arguing that Congress lacked authority to enforce the Clean Water Act. He argued that the Constitution's commerce clause does not grant the Federal Government authority to prevent destruction of waters and wetlands that serve as a critical habitat for migratory birds. While this is a sign to most people of the extremism, Mr. Pryor trumpets his involvement in these cases and is proud of his work to limit Congress's authority. Bill Pryor's passion is not some obscure legal theory but something in which he has believed deeply since he was a student and something that guides his actions as a lawyer. Mr. Pryor's speeches and testimony before Congress demonstrate just how deeply-rooted his views are, how much he seeks to effect a fundamental change in the country, and how far outside the mainstream his views are. Mr. Pryor's judicial ideology is something in which he deeply believes, not just an argument that he makes as a lawyer. Mr. Pryor is candid about the fact that his view of federalism is different from the current operation of the Federal Government--and that he is on a mission to change the Government to fit his vision. His goal is to continue to limit Congress's authority to enact laws under the 14th amendment and the commerce clause--laws that protect women, ethnic and racial minorities, senior citizens, the disabled, and the environment--in the name of sovereign immunity. Is there any question that he would pursue his agenda as a judge on the Eleventh Circuit Court of Appeals--reversing equal rights progress and affecting the lives of millions of Americans for decades to come? His strong views against providing counsel and fair procedures for death row inmates have led Mr. Pryor to doomsday predictions about the relatively modest reforms in the Innocence Protection Act to create a system of competent counsel. When the U.S. Supreme Court questioned the constitutionality of Alabama's method of execution in 2000, Mr. Pryor lashed out at the Supreme Court, saying ``[T]his issue should not be decided by nine octogenarian lawyers who happen to sit on the U.S. Supreme Court.'' Aside from the obvious disrespect this comment shows for this Nation's highest Court, it shows again how results-oriented Mr. Pryor is. Of course an issue about cruel and unusual punishment ought to be decided by the Supreme Court. It is addressed in the eighth amendment, and whether or not we agree on the ruling, it is an elementary principle of constitutional law that it be decided by the Supreme Court, no matter how old its members. Mr. Pryor has also vigorously opposed an exemption for persons with mental retardation from receiving the death penalty, exhibiting more certainty than compassion. He authored an amicus curiae brief to the Supreme Court arguing that the Court should not declare that executing mentally retarded persons violated the eighth amendment. After losing on that issue, Mr. Pryor made an unsuccessful argument to the eleventh circuit that an Alabama death-row defendant is not mentally retarded. Mr. Pryor has spoken harshly about the moratorium imposed by former Illinois Governor George Ryan, calling it a ``spectacle,'' and saying that it will ``cost innocent lives.'' How can someone so sure of his position be relied upon to hear these cases fairly? Over the last few years, many prominent Americans have begun raising concerns about the death penalty, including current and former supporters of capital punishment. For example, Justice O'Connor recently said there were ``serious questions'' about whether the death penalty is fairly administered in the United States, and added: ``[T]he system may well be allowing some innocent defendants to be executed.'' In response to this uncertainty, Mr. Pryor offers us nothing but his steadfast belief that there is no problem with the application of the death penalty. This is a position that cannot possibly offer a fair hearing to a defendant on death row. Mr. Pryor's troubling views on the criminal justice system are not limited to capital punishment. He has advocated that counsel need not be provided to indigent defendants charged with an offense that carries a sentence of imprisonment if the offense is classified as a misdemeanor. The Supreme Court nonetheless ruled that it was a violation of the sixth amendment to impose a sentence that included a possibility of imprisonment if indigent persons were not afforded counsel. Like Carolyn Kuhl, Priscilla Owen, and Charles Pickering, Bill Pryor is hostile to a woman's right to choose. There is every indication from his record and statements that he is committed to reversing Roe v. Wade. Mr. Pryor describes the Supreme Court's decision in Roe v. Wade as the creation ``out of thin air [of] a constitutional right,'' and opposes abortion even in cases of rape or incest. Mr. Pryor does not believe Roe is sound law, neither does he give credence to Planned Parenthood v. Casey. He has said that, ``Roe is not constitutional law,'' and that in Casey, ``the court preserved the worst abomination of constitutional law in our history.'' When Mr. Pryor appeared before the committee, he repeated the mantra of those who desire confirmation, saying that he would ``follow the law.'' But his deeply held and intense commitment to overturning established Supreme Court precedent that protects fundamental privacy rights makes it impossible to give his promises any credence. Bill Pryor has expressed his opposition to fair treatment of all people regardless of their sexual orientation. The positions he took in a brief he filed in the recent Supreme Court case of Lawrence v. Texas were entirely repudiated by the Supreme Court majority just a few weeks ago when it declared that the ``The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private conduct a crime.'' Mr. Pryor's belief is the opposite. He would deny certain Americans the equal protection of the laws, and would subject the most private of their behaviors to public regulation. Mr. Pryor's comments have revealed an insensitivity to the barriers that disadvantaged persons and members of minority groups and women continue to face in the criminal justice system. In testimony before Congress, Bill Pryor has urged repeal of Section 5 of the Voting Rights Act the centerpiece of that landmark statute because, he says, it ``is an affront to federalism and an expensive burden that has far outlived its usefulness.'' That testimony demonstrates that Mr. Pryor is more concerned with preventing an ``affront'' to the States' dignity than with guaranteeing all citizens the right to cast an equal vote. It also reflects a long-discredited view of the Voting Rights Act. Since the enactment of the statute in 1965, every Supreme Court case to address the question has rejected the claim that Section 5 is an ``affront'' to our system of federalism. Whether under Earl Warren, Warren Burger, or William Rehnquist, the United States Supreme Court has recognized that guaranteeing all citizens the right to cast an equal vote is essential to our democracy not a ``burden'' that has ``outlived its usefulness.'' On all of these issues, the environment, voting rights, women's rights, gay rights, federalism, and more, William Pryor's record of activism and advocacy is clear. That is his right as an American citizen, but it does not make him fit to be a judge or likely to be fair on such issues. I think the length and level of his devotion to these issues creates a situation in which his impartiality on such issues would reasonably be questioned by litigants in his court. He should not be confirmed to the United States Court of Appeals for the Eleventh Circuit.

Mr. LEAHY. We have also heard from a number of organizations and individuals concerned about justice before the Federal courts. The Log Cabin Republicans, the Leadership Conference on Civil Rights, the Alliance for Justice, NARAL and many others have provided the committee with their concerns and the basis for their opposition. We have received letters of opposition from organizations that rarely take positions on nominations but feel so strongly about this one that they are compelled to write, including the National Senior Citizens' Law Center, the Anti-Defamation League and the Sierra Club. I ask unanimous consent to print a list of the letters of opposition we have received in the Record.

Mr. LEAHY. Mr. President, then I will continue my speech.

Mr. LEAHY. Mr. President, then I would----

Mr. LEAHY. Mr. President, I will withhold my request for the moment without losing my right to the floor so that the Senator from Utah might make a point.

Mr. LEAHY. Mr. President, I answer my friend from North Dakota that we have been willing to move forward on amendments on the Energy bill. We are not the ones who brought up the extraneous cloture votes which are not going anywhere. Maybe some want to get off the Energy bill. I note that the distinguished Senator mentioned Senator Cantwell's amendment. I was very proud to support that amendment. It was excellent and, as the Senator said, it would protect the consumers. It was interesting because, at one point, she had the amendment won, and you heard the snap, crackle, and pop, not of Rice Crispies but the arms being twisted and snapped as votes were being changed. Most of the power company lobbyists were saying to the leadership on the other side that you cannot allow that to go through, and votes were being changed. It came within two votes. I agree with the Senator from North Dakota that people are going to look in the rear view mirror and say Senator Cantwell was right, and that should have been allowed to go through.

Mr. LEAHY. Mr. President, it is scheduled for tomorrow under the normal circumstances, unless there has been an agreement entered into otherwise. That would be an hour after we come into session. Unless the established quorum is waived, we could go to a vote.

Mr. LEAHY. Mr. President, regaining my right to the floor, I probably could have completed my speech during this time, but I was trying to save everybody some time. I was trying to accommodate the distinguished senior Senator from Utah, who is the chairman. I think everybody has agreed now to the request I have made. I would renew my request that the distinguished Senator from California be recognized, the ball then goes back to the distinguished Senator from Utah.

Mr. LEAHY. I yield.

Mr. LEAHY. No. In fact, I say to my friend that the one time we did try to bring one of President Bush's circuit court nominees to the floor and ask to have him considered, for a month we were not allowed to because the Republicans objected. I have not done a whip check, but I am willing to bet that if we brought them to a vote, and they are on the calendar now, they would get confirmed. Even in the time we have had quorum calls and discussions on this today, we could have brought them up and had a series of 10-minute rollcall votes. And I am willing to bet we would have passed them all.

Mr. LEAHY. Mr. President, let me respond this way. I have been in the Senate for 29 years. I love the Senate. I love following our normal course of doing business. The Senator from Pennsylvania has raised an appropriate question. I suggest that is a question that should be directed to the Republican leader and the Democratic leader and the chairman and the ranking member of the committee, which is the normal course of doing business, the way we have always done it. Naturally, I would be guided by the direction of the Republican and Democratic leaders, not only in the Senate but in the committee. Obviously, I am not in a position to speak for the Republican or Democratic leaders or the Republican chairman or Democratic ranking member on this issue. The Senator from Pennsylvania is perfectly within his rights in raising the issue, and I hope that might prompt a discussion with them.

Mr. LEAHY. Well, Mr. President, I know everyone stands riveted to hear the rest of my speech. I was trying to complete the speech so the Senator from California could be recognized. Mr. President, sometimes after all this work, the Senate actually does work. Those who are watching someday will explain what exactly has happened. To continue, the Senate has already confirmed 140 of this President's judicial nominees, including 27 circuit court nominees. We could have confirmed at least five more this week if the Republican leadership would have worked with us to schedule votes on them. That stands in sharp contrast to the treatment of President Clinton's nominees by a Republican-controlled Senate from 1995 through 2001, when judicial vacancies on the Federal courts were more than doubling from 16 to 33. Opposition to Mr. Pryor's nomination is shared by a wide spectrum of objective observers. Mr. Pryor's record is so out of the mainstream that, even before last month's hearing, a number of editorial boards and others weighed in with significant opposition. Last April, even the Washington Post, which has been exceedingly generous to the Administration's efforts to pack the courts, termed Mr. Pryor ``unfit''. Both the Tuscaloosa News and the Hunstville Times wrote in early May against the nomination. Other editorial boards across the country spoke out, including the San Jose Mercury News and the Pittsburgh Post-Gazette. Since the hearing, that chorus of opposition has only grown and now includes the New York Times, the Charleston Gazette, the Arizona Daily Star and the Los Angeles Times. I ask unanimous consent to print the full package of these editorials and op-eds in the Record.

Mr. LEAHY. Mr. President, the Senator is absolutely right. The distinguished assistant Democratic leader pointed out just a short while ago that we have had a number of votes on the Energy bill, which were very close votes, which could have gone either way. We had a good debate going and we were actually voting. Now, instead we spend more time in quorum calls and bringing up judicial votes that are not going anywhere. I must say to my friend from North Dakota, as ranking member of the Judiciary Committee, if we would have taken the time that has been wasted on things not going anywhere, if we had taken time to vote through some of the judges, where I believe we could get consensus of both Democrats and Republicans, and vote and confirm them and let them go to the bench, that would be a better way. We spent a whole month, as I mentioned, trying to get the Republicans to allow a vote on Judge Edward Prado for a circuit court of appeals position. He had been nominated by President Bush and was strongly supported by President Bush. For a month, they blocked it from going to a vote. We found out afterward it was because they went to the same members of the press they have gone to this week and they said: This is terrible. The Democrats aren't allowing us to vote. Democrats, time after time, came on the Senate floor and said we can have unanimous consent to go to a vote, and they objected.

Mr. LEAHY. Mr. President, the distinguished Senator from Pennsylvania has asked if I will yield for a question. I will yield without losing my right to the floor or my right to reclaim the floor within 1 minute.

Mr. LEAHY. Mr. President, I would renew my----

Mr. LEAHY. Mr. President, I tell my friend from North Dakota, not only would it be an appropriate course because cloture is not going to be invoked primarily because, for one major reason because of his qualifications, but also because the rules of the Judiciary Committee were not followed in having this nomination go out. We could very well at that time, if we want to get judges through, not have this cloture vote, which is not going to go anywhere. We have James Cohn, of Florida. During this time we could have voted on him to be a judge. We could have voted on Frank Montalvo, of Texas. These are nominees I would support and I think a majority of us would support. Xavier Rodriguez, of Texas, could have been voted on. The Republicans have made no effort to bring them up, even though we told them they could. H. Brent McKnight, of North Carolina--these are people we would allow to being brought up. We would allow the home State Senators to take a few minutes to speak about them. In fact, they could bring them all up and do them in a stack of 10-minute rollcall votes. They would have gone through in the amount of time of some our quorum calls today.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am introducing a bill to expand the boundaries of the Green Mountain National Forest. This will allow for the inclusion of lands that have already been purchased using Land and Water Conservation Fund dollars to be brought into the boundaries of the national forest providing them full statutory protection. The Forest Service supports this administrative action and has been extremely helpful in providing the information needed for this legislation. It is with pride that I can say that since I came to Congress in 1975 and began to seek funding for land acquisition in 1977 we Vermonters have seen the Green Mountain National Forest expand from approximately 264,100 acres to over 387,500 acres in size. This 123,400 acre expansion will provide unmeasured opportunities for the American public. While there is much debate over the future management of our Nation's national forests today, this should not diminish their importance. In Vermont, where approximately five percent of land base is in federal ownership, these lands are treasured for the opportunities they provide not only to Vermonters, but to all who enjoy the Green Mountain National Forest. This includes recreational activities from camping, hiking, mountain biking, and skiiing to job opportunities provided through timber management activities, the ski industry, and other support services, as well as for their intrinsic value by providing that certain lands are set aside for in their natural state through wilderness protection and other special designations. I am concerned that some will argue that we need to reduce our land acquisition dollars and to better manage what we already have. I do not dispute the need for better management, but I wholeheartedly disagree with reducing our land acquisition efforts. At one time this Nation believed that our boundaries were limitless. Today we realize that land is a finite resource and as more is acquired for development less will available for the American public to acquire for Federal ownership. There will come a time when the only land one can freely access, thereby avoiding the ``No Trespassing'' signs, will be our Federal, State, and county lands. Visionaries see what tomorrow will bring and prepare for that today--those who are still building upon our public land base have that vision. At the turn of the century, the 20th century that is, there existed that vision, between then Chief of the Forest Service Gifford Pinchot and President Theodore Roosevelt who together expanded the boundaries of the national forests immensely. We continue to need that vision, as seen by the efforts by those on the Green Mountain National Forest, in continuing to fund land acquisition into the future. This need, for providing the American public with unfettered access to open lands, is of significant importance to those who live east of the Mississippi; where more than 50 percent of the American public are within three hours of their national forests, but only have access to approximately one-quarter of the national forest land. I hope that my colleagues will join me in supporting this bill and continue to carry that vision on the future to build upon our national forest system as we start the 21st century.

Mr. LEAHY

Mr. LEAHY. Mr. President, yesterday the assistant minority leader made some cogent observations about how the Senate is being required to expend hours on matters that are leading nowhere and take away from debate on the Energy bill. If the Republicans were truly serious about finishing the Energy bill this week, they would not be scheduling hours of debate on contentious judicial nominations. Nor for that matter would they break for several hours yesterday to have a pep rally at the White House. From the Senate schedule, an objective observer would have to think it is more driven by partisanship and trying to score political points than a desire to make progress on the business of the Senate and on the issues that are the most important to the American people. This week we have not proceeded to the foreign operations appropriations bill, which contains a number of matters of overriding importance to the country and the world, although Chairman McConnell and I have been ready to proceed. We have not proceeded to the energy and water appropriations bill or the other appropriations matters that need to be concluded soon for the Government and Government programs to continue to operate in the fiscal year that will soon be upon us. Usually we devote July to appropriations matters but the Republican leadership has chosen to take this week off in that regard. Today we must again return to the controversial nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. The last cloture vote on this nomination was scheduled on May 8. The only thing that has changed since that unsuccessful vote is that the administration and some Republicans in the Senate have ratcheted up their unprecedented partisanship and the use of judicial nominees for partisan political purposes. I spoke yesterday about the new low to which some Republican partisans have stooped in political ads and charges that should offend all Americans. I again challenged Republicans and the administration to disavow those despicable efforts but, instead, they are choosing to continue to support the smear campaign of insult and division. Yesterday I inserted into the Congressional Record some of the articles and editorials that comment upon this most troubling development. Yesterday I also had the opportunity to meet with representatives of the Interfaith Alliance. I thank them for condemning these unwarranted attacks and for standing up for the Constitution and the first amendment rights of all Americans. Reverend Gaddy, Father Drinan, Reverend Veazy, Right Reverend Dixon, and Rabbi Moline understand what is afoot and have spoken out in the best tradition of this country, and I thank each of them. I do not expect the vote on this nomination to change today. Nothing has been done to accommodate Senators' concerns. No arrangements have been made to provide access to the documents requested in connection with this nomination that are available to the administration and that Mr. Estrada said he had no objection be provided. Thus circumstances have not changed since the first vote on this nomination or the most recent vote back in May. There continues to be, in the phrase favored by the White House, ``revisionist history'' regarding the precedent of providing the Senate with legal memos to the Solicitor General and by the Solicitor General and similar documents in connection with nominations for both lifetime and short-term posts. Senator Schumer, Senator Kennedy, and I have detailed those earlier precedent in earlier debate. It has not been refuted. It cannot be refuted. Facts are stubborn things. Nonetheless the administration and Republicans continue to ignore the facts seeking political gain and have chosen to use Mr. Estrada as a pawn in their efforts. That is unfortunate and regrettable. We have worked hard to try to balance the need for judges with the imperative that they be fair judges for all people, poor or rich, Republican or Democrat, of any race or religion. This has been especially difficult because a number of this President's judicial nominees have records that do not demonstrate that they will be fair and impartial. In response, the White House and its allies have bombarded the airwaves with all manner of misleading information to try to bully the Senate into rolling over and rubber-stamping every one of its these nominees. The claims that we are anti-Hispanic or anti-Catholic or anti-woman or anti-Christian are part of Republican politics of attack and division as taught by Presidential advisor Karl Rove and as implemented by the administration's allies in the Senate and C. Boyden Gray and his so-called Committee for Justice, who paid for the most recent volley of ads. These dirty tricks are nothing new to this gang. Earlier this year, Mr. Gray and his group ran ads insinuating that Democrats oppose the nomination of Mr. Estrada because he is Hispanic, ads which were refuted by the courage of many Latino leaders and Latino civil rights groups which spoke out against confirming Mr. Estrada. Mr. Gray's group recently ran print and radio ads calling Democratic Senators anti- Catholic because they oppose President George W. Bush's most controversial and divisive appellate nominee, Alabama Attorney General Bill Pryor. These are despicable and false charges intended to distract the public from the serious evidence that Mr. Pryor was chosen because he would be an unfair, results-oriented judge. This type of demagoguery, in its shameful effort to mislead and inflame, should be disavowed. The cynical political games are all the more disappointing from a President who campaigned claiming that he was going to be a uniter not a divider and set a new tone in Washington. The reality is that on nominations this administration goes out of its way to choose divisive nominees. The tone set by the White House has been unilateral and been marked by a refusal to consult with Senators in advance of nominations and to accommodate concerns raised. Senate Democrats have more than demonstrated our good faith. We inherited 110 vacant seats in the Federal judiciary in July 2001, vacancies that were increased and perpetuated under Republican control of the Senate. In 17 months, Democrats worked hard to have the Senate confirm 100 of President Bush's judicial nominees. Second, as of July 28, 2003, the Senate has confirmed 140 of President Bush's judicial nominees, including 27 circuit, or appellate, nominees. This is more circuit court judges confirmed at this point in his Presidency than for his father, President Clinton, or President Reagan at the same point in their Presidencies. It is more judges than a Republican-controlled Senate allowed be confirmed in any 3-year period serving with President Clinton. We are finally below the number of vacancies Republicans inherited in 1995, and earlier this year we reached the lowest number of vacancies in the Federal courts in 13 years. This from the 110 vacancies that Democrats inherited from Republican obstruction. Indeed, today there are more full-time Federal judges serving on the Federal courts than at any time in U.S. history. These confrontations and problems with nominations are of the White House's own making. It is true that some of this President's judicial nominees with troubling records have not been confirmed. It is also true that Democrats have supported as many nominees as we could responsibly. Democrats have not been spoiling for a fight. We did not seek out the nomination of Judge Pickering or Judge Owen. But we treated them fairly and much more fairly than Republicans had treated President Clinton's nominees to the Fifth Circuit by according them hearings, debate, and a committee vote. They were rejected. For the first time in history a President nonetheless renominated those rejected by the Senate Judiciary Committee. That it was unprecedented is part of the difficulty with these controversial and divisive nominees. Justice Owen is someone whom Republican judges on the Texas Supreme Court criticized as a judicial activist. We did not seek out the nomination of Miguel Estrada, but we accorded him a hearing and sought to consider the nomination responsibly. We are being required to vote without all the information we need. The committee did vote, which was more than was accorded President Clinton's nominees to the DC Circuit. The Senate is resisting a vote without knowing more about Mr. Estrada's work and judgment. Democrats did proceed to vote on and confirm the nomination of another to the DC Circuit in spite of Republican obstruction of President Clinton's nominations to that important court. We did not seek the controversial nominations of Jeffrey Sutton, Timothy Tymkovich, or Dennis Shedd, but we proceeded with them. They each received more negative votes than required to prevent cloture, but we proceeded. We proceeded on Deborah Owen, Michael McConnell, and a number of strongly conservative and controversial nominees. We have not chosen these fights this week. They have been staged by the Republican leadership. We have fought them for the sake of the American people, the independence of the Federal courts, and to preserve the Senate as a check on this expansive court packing by the Executive. Republican partisans have responded to the sincere concerns of numerous Senators about the records of controversial nominees by demanding that Senate rules be changed to force votes on the most extreme nominees. This effort is in the wake of repeated violations by Republicans of longstanding committee rules and agreements to allow sufficient time to review the FBI investigations and legal careers of the President's nominees for these powerful positions with lifetime tenure. With the Constitution's guarantee of lifetime jobs for judges, we cannot correct mistakes made in a slipshod confirmation process. In their quest to limit public scrutiny, Republicans have invented interpretations of the Constitution without any basis in tradition or history. Although they now contend that the Constitution requires an up-or-down vote on every judicial nominee, the plain facts are that they blocked up-or-down votes on more than 60 of President Clinton's judicial nominees and more than 250 of his nominees to short-term positions in his administration. Did they engage in wholesale constitutional violations during President Clinton's Presidency? I did think their one-person filibusters by anonymous, secret holds were unfair, and that is why I made blue slips public as chairman and have supported ending anonymous holds. Our Democratic Senate leadership worked hard earlier this year to correct some of the problems that arose from some of the earlier hearings and actions of the Judiciary Committee in violation of rules that have served the committee and the Senate well for a quarter of a century. However, once again just last week, the Republican members of the Judiciary Committee decided to override the rights of the minority and violate longstanding committee precedent under rule IV in order to rush to judgment even more quickly for this President's most controversial nominees. That was another sad day in committee. And yet Republicans persist in their obstinate and single-minded crusade to pack the Federal bench with right-wing ideologues, regardless of what rules, longstanding practices, personal assurances, or relationships are broken or ruined in the process. These rules and precedents are not just ``inside baseball.'' They are the core of the rule of law in our system of government. If those elected will not follow rules to confirm judges or create statutes, then we have little hope that the rule of law will prevail in our courts and in our country. Republicans in the Senate seem intent on sacrificing the role of the Senate as a check on the Executive for the short-term political gain of this White House. The Framers expressly protected Members' freedom of debate in the Constitution. The Constitution also gives the Senate the power to devise its procedural rules. There is no requirement in the Constitution that matters be decided by simple majorities or that all bills or nominations be brought to a vote. As the Supreme Court has recognized that ``Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history or our cases that requires a majority to always prevail on every issue.'' Gordon v. Lance, 403 U.S. 1 at 6, 197l, finding constitutional local voting rules requiring a majority of 60 percent to pass a measure. The notion that every nominee is entitled to a vote on the Senate floor is defied by decades of practice over the past two centuries. 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 Capitol. More importantly, the Framers created the Senate to be unique from the House in the protections for the rights of each Senator and the stability and continuity in this body. Unlike the House, the Senate is not reborn every 2 years but two-thirds of its Members remain through every election. The Framers gave the Senate special powers, as a check on the executive branch, to confirm nominees or to decline to do so, affirmatively or by inaction. History shows that 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 President Washington's nominees were all confirmed. One of President Washington's short-term nominees, Mr. Benjamin Fishbourn's nomination to the port of Savannah, was defeated on the floor of the Senate because of the opposition of both Georgia Senators. Many Supreme Court nominations were defeated through inaction or delay, rather than by failed confirmation vote. For 160 years, until 1949, there was no way, other than through unanimous consent, to bring a judicial or executive nomination to a vote. For the past 86 years, the Senate has required a vote of two- thirds to end debate on changing any rule of procedure, made explicit in 1959. For the past 54 years, the Senate has required more than a simple majority, ranging from two-thirds to three-fifths, to bring a judicial nomination or legislation to a vote. For the past 25 years, the Senate has required three-fifths of the Members sworn to vote to end debate on any matter, other than amending the rules, two-thirds. The Senate and the Nation not only have survived all of these years while respecting freedom of debate but have thrived, strengthening our democracy by ensuring a forum that honors the passionate views and interests of a minority of its members while checking the caprice of temporary majorities, particularly regarding the lifetime appointments to our Federal courts. As the late, eminent Professor Lindsay Rogers observed, ``the fact of the matter is . . . that, as the much vaunted separation of powers now exists, unrestricted debate in the Senate is the only check upon president and party autocracy.'' The American Senate 164, 1926. We would all do well to remember that, as the scholar Charles Black observed, ``If a President should desire, and if chance should give him the opportunity, to change entirely the character of the Supreme Court, shaping it after his own political image, nothing would stand in his way except the United States Senate.'' If we give up the genius of the checks and balances of the Constitution as embodied in the role of the Senate exercising its independent judgement to confirm or reject lifetime appointees, by vote or inaction, the American people will be the losers. Yet some Republicans seem intent on inflicting more damage, to the process, to the Senate, and to the independence of the Federal courts. Republicans claim there has never been a filibuster of a circuit court judge. This is false. As recently as 2000, Senator Frist and his Republican colleagues filibustered two of President Clinton's circuit court nominees. One of those nominees, Judge Richard Paez, a Mexican American nominated to the Ninth Circuit was subject to filibuster procedures and other blocking tactics that prevented him from being confirmed for more than 1,500 days. That was a circuit court filibuster, even though it was ultimately unsuccessful. At the same time, Republicans were simultaneously filibustering the nomination of Ninth Circuit nominee Marsha Berzon. This was in addition to nearly 2 dozen other circuit court nominees who were languishing or defeated in committee without a vote in committee or on the floor as well as dozens of other district court nominees. Republicans who now claim that the Constitution requires a majority vote on every judicial nominee should explain how Republicans through secret objections, blocked votes on more than 60 of President Clinton's judicial nominees, including nearly 2 dozen circuit court nominees. For Republicans to claim that the process is now broken because a few of President Bush's circuit court nominees are being debated in the light of day, rather than defeated in the dark of night, is breathtaking in its hypocrisy. Republicans also blocked more than 250 of President Clinton's nominees to short-term positions in his administration. For example, they successfully debated to death his nominations of an ambassador, Sam Brown, and of Dr. Henry Foster to be Surgeon General, in addition to the other more than 300 judicial or executive branch nominees blocked in the dark of night by one of more Republicans. I mention this because I just cannot imagine how they can get away with these false claims, which the most recent history of nominations clearly refutes. This data is publicly available. The Senate, unlike the House, has never had a rule allowing a simple majority to force a vote on any matter. Only for the past 54 years have Senate rules allowed fewer than the agreement of all Senators to force a vote on a nomination, reducing the number needed to end debate from unanimous agreement to the current number, 60 votes. These rules help ensure that lifetime appointees have wide, rather than narrow, support because consensus nominees are more likely to be fair than extremely divisive ones. The nomination we vote on today, that of Mr. Estrada, is another divisive nomination of this President. Despite the overtures that have been made to the White House to ask them to honor past precedent and provide Mr. Estrada's memos to the Senate, the White House has refused to budge. Instead of honoring that precedent, the White has sought to break other precedents and understandings in the quest to win confirmation at any cost. Just last week, the White House signaled again its refusal to seek compromise or accommodation for the sake of the fairness of the courts. The President nominated two more controversial individuals to the DC Circuit. This is just one more sign in a long line that this White House is determined to continue to divide the American people with its nominations and to pack the courts in order to win judicial victories for its ideological agenda and its allies at the expense of fairness for all. Since the administration has not provided the information requested more than a year ago with respect to Mr. Estrada, nothing has been done to alleviate concerns about this nomination.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to introduce the Congressional Responsibility for Immigration Act, a bill to deny fast-track procedures to trade agreements that include immigration provisions. We have witnessed outrage in both parties and in both houses of Congress to the inclusion of ``temporary entry'' provisions in the Free Trade Agreements (``FTAs''), with Chile and Singapore. Members of the House and Senate Judiciary Committees, along with other concerned Members, have stated clearly that they never again want to see trade agreements that include immigration provisions. This bill will allow us to do more than rely on the vague assurances that the Office of the U.S. Trade Representative has offered in response to our strongly-held concerns-- it will provide a major deterrent that should prevent this Administration and future Administrations from ignoring Congress' authority over immigration policy. I am pleased that Senator Feinstein--who has led the fight against the inclusions of immigration provisions in the Chile and Singapore agreements--Senator Jeffords, and Senator Kennedy have joined me in introducing this bill. This bill is simple and straightforward. It states that whenever the Senate considers legislation to implement a free trade agreement, any Senator could raise a point of order against the bill on the grounds that it includes an immigration provision. If the point of order were upheld, the bill would have to be considered under ordinary procedures, allowing us to amend it and strike provisions that violated our constitutional authority over immigration. Succeeding Administrations have told us for decades that they simply cannot pursue trade agreements without ``fast-track'' authority, and Congress has chosen to give that authority to the Executive Branch. Having surrendered some of our power, however, we must be all the more vigilant in ensuring that this surrender remains limited in scope. It has been widely reported that the USTR considers the ``temporary entry'' provisions in the Chile and Singapore agreements to be models for future agreements. I have criticized those provisions because I share the concerns expressed by Senators Feinstein, Lindsey Graham, Sessions and others that the United States Trade Representative should not be in the business of amending domestic immigration laws, as these treaties do. The decision to include immigration provisions was not only unauthorized but also unnecessary to achieve the Administration's stated goals. Congress has already created the H-1B program, which allows foreign workers with specialized skills to work in the United States. That program was established after a lengthy process of public hearings, debate, and negotiation, and it has worked to help meet labor shortages and strengthen our economy. If the Administration feels that the program needs to be changed, or a new visa category created, it should have sought to do so through the ordinary legislative process. By including immigration provisions in trade agreements, the Executive Branch not only usurps Congress' authority to create programs, but also to amend them if they prove to be unsuccessful. Any amendments that Congress makes to immigration policies that are made through trade agreements are subject to challenge as violations of those agreements. As a result, our hands are tied not just at the time of the negotiation, but for all future legislative activity as well. This is simply unacceptable--it was not the purpose of our trade agreements and it is neither a wise nor a constitutionally appropriate means of creating our immigration policy. We must pass this bill and restore our proper separation of powers. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to introduce the Congressional Responsibility for Immigration Act, a bill to deny fast-track procedures to trade agreements that include immigration provisions. We have witnessed outrage in both parties and in both houses of Congress to the inclusion of ``temporary entry'' provisions in the Free Trade Agreements (``FTAs''), with Chile and Singapore. Members of the House and Senate Judiciary Committees, along with other concerned Members, have stated clearly that they never again want to see trade agreements that include immigration provisions. This bill will allow us to do more than rely on the vague assurances that the Office of the U.S. Trade Representative has offered in response to our strongly-held concerns-- it will provide a major deterrent that should prevent this Administration and future Administrations from ignoring Congress' authority over immigration policy. I am pleased that Senator Feinstein--who has led the fight against the inclusions of immigration provisions in the Chile and Singapore agreements--Senator Jeffords, and Senator Kennedy have joined me in introducing this bill. This bill is simple and straightforward. It states that whenever the Senate considers legislation to implement a free trade agreement, any Senator could raise a point of order against the bill on the grounds that it includes an immigration provision. If the point of order were upheld, the bill would have to be considered under ordinary procedures, allowing us to amend it and strike provisions that violated our constitutional authority over immigration. Succeeding Administrations have told us for decades that they simply cannot pursue trade agreements without ``fast-track'' authority, and Congress has chosen to give that authority to the Executive Branch. Having surrendered some of our power, however, we must be all the more vigilant in ensuring that this surrender remains limited in scope. It has been widely reported that the USTR considers the ``temporary entry'' provisions in the Chile and Singapore agreements to be models for future agreements. I have criticized those provisions because I share the concerns expressed by Senators Feinstein, Lindsey Graham, Sessions and others that the United States Trade Representative should not be in the business of amending domestic immigration laws, as these treaties do. The decision to include immigration provisions was not only unauthorized but also unnecessary to achieve the Administration's stated goals. Congress has already created the H-1B program, which allows foreign workers with specialized skills to work in the United States. That program was established after a lengthy process of public hearings, debate, and negotiation, and it has worked to help meet labor shortages and strengthen our economy. If the Administration feels that the program needs to be changed, or a new visa category created, it should have sought to do so through the ordinary legislative process. By including immigration provisions in trade agreements, the Executive Branch not only usurps Congress' authority to create programs, but also to amend them if they prove to be unsuccessful. Any amendments that Congress makes to immigration policies that are made through trade agreements are subject to challenge as violations of those agreements. As a result, our hands are tied not just at the time of the negotiation, but for all future legislative activity as well. This is simply unacceptable--it was not the purpose of our trade agreements and it is neither a wise nor a constitutionally appropriate means of creating our immigration policy. We must pass this bill and restore our proper separation of powers. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. How much time is available to the other side?

Mr. LEAHY. Mr. President, today the Senate will confirm another two judicial nominees, bringing the total number of judicial nominees sent by President Bush to be confirmed to 140. With today's vote, the number of judicial nominees confirmed this year alone climbs to 40. That exceeds the number of judges during all of 2000, 1999, and 1997, and is more than twice as many judges as were confirmed during the entire 1996 session. It is more than the average annual confirmations for the 6\1/ 2\ years the Republican majority controlled the pace of confirmations from 1995 through the first half of 2001. Thus, in the first 7 months of this year, we have already exceeded the year totals for 4 of the 6 years the Republican majority controlled the pace of President Clinton's judicial nominees and the Republican majority's yearly average. Indeed with the confirmation of this 140th judge, the Senate has now confirmed in 2 years, from July 20, 2001 to July 28, 2003, more judges for President Bush than it was willing to consider during any 3-year period in which President Clinton's nominees were being considered by a Senate Republican majority. A good way to see how much faster we are proceeding on judicial nominations for a Republican President than Republican Senators were willing to proceed for a Democratic President is to compare where we are on this date over the last several years. Over the last 6\1/2\ years of Republican control under President Clinton, the Republicans allowed only 20 judicial confirmations, on average, by July 28, and included only 4 circuit court nominees, on average, by this time. Today we will have doubled those benchmarks with the confirmation of the 39th and 40th judicial nominees, which have included 10 circuit court judges. The double standard that Republicans have used in their treatment of judicial nominees is evident from this chart. On this day, in 1995, only 32 judicial nominations had been confirmed; in 1996, only 14; in 1997, only 9; in 1998 the confirmations totaled 33; in 1999, only 9; and in 2000 the confirmation total by this point of the year was 35. Today, we confirm the 40th judge so far this year. Vacancies in the courts stand at less than half of what they were during the Clinton years and we have more Federal judges serving than ever before. We have already this year confirmed 10 judges to the Courts of Appeals. This is more than were confirmed in all of 4 of the past 6 years when the Republicans were in the majority--in 1996, 1997, 1999, and 2000. And in the 2 other years, the Tenth Circuit nominee was not confirmed until much later in the year. Today, the Senate confirms Earl Lee Yeakel and Kathleen Cardone to the U.S. District Court for the Western District of Texas. Judge Yeakel has been serving on the Texas Court of Appeals since 1998, appointed by then-Governor Bush. Judge Cardone has served as a State court judge on different courts throughout the El Paso area since 1990. Both were just nominated on May 1, their paperwork was not complete until June, and they are being confirmed just a month later. This is another sign of how fair the Democrats have been to this President's nominees. The Judiciary Committee has already held hearings for 6 of President Bush's nominees for the Western District of Texas alone and for 13 of President Bush's district court nominees from the State of Texas. Eight of those judges were given hearings and confirmed during the 17 months I served as chairman of the Judiciary Committee. That was nearly one judge for Texas every other month, in addition to the four United States Attorneys and three United States Marshals who were reviewed and confirmed in that period of time. As I have noted throughout the last 3 years, the Senate is able to move expeditiously when we have consensus nominees. Unfortunately, far too many of this President's nominees have records that raise serious concerns about whether they will be fair judges to all parties on all issues. Mr. President, I reserve the remainder of my time. How much time do I have remaining on this side?

Mr. LEAHY. I yield back my time.

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

Mr. LEAHY

Mr. LEAHY. Mr. President, today I rise to introduce a bill to address the growing concern over the future of our Nation's Federal forest lands. The debate over the administration's proposed Healthy Forests Initiative indicates just how important these public lands are and calls for Congress to provide visionary leadership over the future of these lands. My bill, the Forestry and Community Assistance Act, strives to provide that vision through a balance of sound land stewardship and immediate active management to address the wildfire risk to communities and the forest health needs of our Federal and private forest lands. The catastrophic fires that plague our western national forests and Bureau of Land Management lands are not a new phenomenon. Forest fires are part of the natural landscape. However, the intensity of these fires and the impacts of them on the urban interface due to past management decisions must be appropriately addressed. This a complex issue requiring prudent and deliberate thought, not rash reaction that cuts the public out from the debate over the future of their Federal lands. The administration claims that over 190 million acres are in need of treatment. By its own admission, treating even a small fraction of these acres will take almost a decade. Most people believe it will be much longer and could cost billions of dollars. Unfortunately, we do not have the time or money to take the broad, unfocused approach the administration proposes in H.R. 1904. We need to take a step back and work together on a bill that will target funding and projects first to help those communities at greatest risk from wildfires. My bill, the Forest and Community Assistance Act, will expedite fire threat reduction projects on high-risk forest lands nearby communities, private property, and municipal watersheds. It provides new authority for Federal land management agencies to enter into cooperative agreements with local and State government, homeowner associations, and local fire districts to plan and execute thinning projects across ownership boundaries. It would do all of this without compromising environmental laws, the public input process, or judicial review. The administration, through H.R. 1904, is suggesting that they should be able to get around all of these. They are wrong. Those who we entrust with the management of our public lands should be held to the highest standards of accountability. To end the open dialog with the American public, remove objective oversight, and, when necessary, limit review of decisions by the judiciary is irresponsible. These are the American public's lands, not the lands of a small minority who want to bypass over 30 years of environmental laws and jurisprudence. The administration continues to argue that these problems have been created by unnecessary analysis, appeals, and lawsuits. It still boggles the imagination that an agency with a $4.84 billion budget, such as the Forest Service, is brought to its knees by thirteen lawsuits as recently noted in a May 2003 General Accounting Office report. Maybe the devil is in the details, but as a former States attorney and ranking member of the Senate Judiciary Committee, one of my greatest concerns with the House bill, H.R. 1904, is its encroachment into the judicial branch. H.R. 1904 not only interferes with how the courts should manage their dockets, but it further tips the scales of justice in favor of the government. This is not the appropriate role of this Congress or of the executive branch. As noted, by my good colleague from Alaska, Senator Stevens, in a debate last week on another bill, ``the separation of powers is one of the most distinct advantages of this democracy. It is the longest living government on the face of the Earth today because it is a government of the people, by the people, and for the people, but it has a Constitution. That Constitution we all swear to uphold and defend. Part of that Constitution is the separation of powers concept.'' H.R. 1904 violates that concept. The Forestry and Community Assistance Act of 2003 allows for public involvement, requires compliance with environmental laws, and allows for judicial review, while allowing work to be completed in an expedited manner. Further, my bill works towards addressing the health of our Nation's Federal lands by placing an emphasis on addressing the large-scale insect and disease epidemics that are harbingers of an unhealthy forest. The bill would also conserve lands in a healthy forest reserve program to provide protection for species at risk. Lastly, but not of least significance, the Forestry and Community Assistance Act focuses on providing economic and technical assistance to rural communities that depend on this Nation's natural resources for a living. I hope that my colleagues will take a very close look at H.R. 1904 and recognize that it goes much further than its claims of addressing wildfire. I hope my colleagues will recognize that we need to take a different approach.