Patrick Leahy

Mr. LEAHY

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. LEAHY

Mr. LEAHY. Mr. President, I begin by thanking the Democratic leader and assistant Democratic leader for going to bat for Judge Edward Prado. They apparently are now working on an arrangement, that I understand is close to being worked out with the Republican leadership, so this nomination can be considered without further delay. I appreciate the fact that the majority leader and the deputy majority leader, Senator McConnell, are going to work with us to do that. As I have noted on the floor before, basically before the recess, and since, we had checked on our side of the aisle and knew that nobody objected to going forward with a vote on Judge Prado. In fact, I suspect most are going to vote for him. I was not quite able to figure out why there was objection on the Republican side to going forward with his nomination. So I thank the leaders for now getting together so he will be allowed to go forward. I also thank the Congressional Hispanic Caucus for its support for this nomination, working with the Senate to go forward. I noted on the floor on Monday that Judge Edward Prado, being nominated to the United States Court of Appeals for the Fifth Circuit, was cleared by all of us on this side; all Democratic Senators serving on the Judiciary Committee had voted to report the nomination favorably. That is why we were concerned when it was held up on the other side. We have worked hard to find judges who might be consensus judges, as he is. Interestingly enough, Judge Prado was originally appointed by Ronald Reagan. He is not a Democrat. He is a Republican. He considers himself a conservative Republican, but has a judicial record where he fits the test that I and many of us on both sides of the aisle certainly thought a judge should meet: When you walk into a courtroom, you should be able to look at that judge and say, Whether I am a Republican or a Democrat, rich or poor, White or Black, plaintiff or defendant, whatever, that judge is going to give me a fair hearing. The current occupant of the chair has served as attorney general and justice of the Texas Supreme Court and he knows whereof I speak. Anyone who spends time in a court knows, looking at a judge, if they are going to get a fair shake with the judge or not. We all know there are some judges you want to avoid, other judges about whom you say, fine, I have to prove my case, but I feel I have a fair chance. I think that is the kind of judge Judge Prado will be. When the Democrats took over the majority of the Senate in the summer of 2001, we inherited 110 judicial vacancies, primarily because during the last few years of President Clinton's term Republicans had blocked an unprecedented number of judges from going forward. But during the next 17 months, we confirmed 100 of President Bush's nominees, including some who had been rated as not qualified by the ABA, several who were divisive and controversial. Forty new vacancies occurred during the normal course of deaths and resignations at that time. We still took the 110 vacancies we inherited and brought that down to 60, which is considerably less than what the Republicans have always referred to as being full employment. On the Senate executive calendar, we also have the nomination of Cecilia M. Altonaga, of Florida, to be a Federal judge in Florida. She will be the first Cuban-American to be confirmed to the Federal bench-- expedited at the request of Senator Graham of Florida. I might say this is another case where we are ready to go forward any time he wants. The decision has not been made to go forward yet on the Republican side of the aisle. We hope to go forward soon. We have cleared that. We have cleared her and are happy to go forward. Mr. President, we have another nomination before us--again from the State of Texas, the State represented ably by the distinguished Presiding Officer. We have had really unprecedented debate. We are asked to reconsider the nomination of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit. We have never had a case where President resubmitted a circuit court nominee that had already been rejected by the Senate Judiciary Committee for the same vacancy. Until a few weeks ago, never before had the Judiciary Committee proceeded for a second time on a nominee. I have spoken about my concerns relating to Priscilla Owen. I have detailed some of the cases in which Judge Owen's views were sharply criticized by her colleagues on the Texas Supreme Court. I explained why I believe she should not be confirmed to the seat on the Fifth Circuit. Today I would like to talk about some more of the cases, involving a variety of legal issues, which show Priscilla Owen to be a judicial activist, willing to make law from the bench rather than follow the language and intent of the legislature. I heard Senator Cornyn say the other day that just because you disagree with the outcome of a particular case does not give you the right to call the judge who wrote it an activist. I agree. I wish more Republicans had followed that rule when President Clinton was nominating qualified people to the Federal bench and a Republican majority was holding them up anonymously and voting against them. There are many cases before the courts of this Nation where reasonable people, reasonable lawyers and judges, could disagree on the outcome, could have a difference of opinion about interpreting a statute. There are many times when a statute is ambiguous, or a legal precedent unclear, and there is no right or wrong result. I could not agree more with the junior Senator from Texas on this fundamental point. I wish more Republicans had followed that rule when President Clinton nominated qualified people to the Federal bench and anonymous hold after anonymous hold was made on the Republican side. They were not allowed to go forward. It is interesting when we talk about political background of judges. Vermont is allowed one seat by tradition on the Second Circuit Court of Appeals. New York and Connecticut have the rest of the seats. I went to President Clinton when there was a vacancy and recommended a sitting Federal judge in our State. He had been a Republican Deputy Attorney General--a conservative. I disagreed with some of his decisions. I disagreed with his legal reasoning. I thought he did a careful and reasoned job. I went to President Clinton knowing that there were a number of people who might be considered for that position--a number of them leading Democrats in our State. I told the President I thought this would make a good person, and it involved the nomination which he could rest easy on and not have to worry about. Shortly before he was about to make his decision, the Federal judge ruled strongly against a position of President Clinton. And when the President asked me about that, I said he could have made the ruling a week after you sent his nomination up, but that I thought he was honest. The President admired his courage, honesty and ability, and he nominated him. And this Senate voted as I recall unanimously to put him on the Second Circuit Court of Appeals where he does very, very well. I voted on hundreds of hundreds of Republicans nominated by Republican Presidents. But just as I voted against those nominated by Democratic Presidents, I will vote against those nominated by Republican Presidents when they show that they are going to be activist judges who are not going to follow the law but rather follow the dictates of their own philosophy. That is why I will continue to oppose Priscilla Owen. I did do as the President asked when I was chairman. I held a hearing for her. We had a very fair hearing, according to her, and actually put her on the agenda for markup on the day the President of the United States requested that she be put on. She was put over at a Republican request, but then she was voted down by the committee. When I look at Justice Owen's record, I am not looking at the outcome of the cases in which Justice Owen ruled, and criticizing her as an activist just because I do not agree with a ruling or even a couple of rulings. I am looking at the substance of a number of her decisions, how she approached those cases and the propriety of her legal analysis. The conservative justices on the other sides of these cases, in many, many of those cases, are themselves extremely critical of her approach, her reasoning, her judging--in short, her activism. They have called her an activist, said one of her opinions was just ``inflammatory rhetoric,'' noted in other cases that she went beyond the language of the law, ignored legislative intent, and gutted laws passed by the people's elected representatives. Like them, I disagree with Priscilla Owen's methods and activist judging. In my last statement, I touched on some of the criticism received from the majority in the series of parental notification cases. In addition to cases dealing with parental notification, Justice Owen's activism and extremism is noteworthy in a variety of other cases, including those dealing with business interests, malpractice, access to public information, employment discrimination and Texas Supreme Court jurisdiction, in which she rules against individual plaintiffs time and time again. In one case that is perhaps the exception that proves the rule, Justice Owen wrote a majority opinion that was bitterly criticized by the dissent for its activism. In In re City of Georgetown, 53 S.W. 3d 328, Tex. 2001, Justice Owen wrote a majority opinion finding that the city did not have to give the Austin American-Statesman a report prepared by a consulting expert in connection with pending and anticipated litigation. The dissent is extremely critical of Justice Owen's opinion, citing the Texas law's strong preference for disclosure and liberal construction. Accusing her of activism, Justice Abbott, joined by Chief Justice Phillips and Justice Baker, noted that the legislature, ``expressly identified eighteen categories of information that are `public information' and that must be disclosed upon request . . . [sec. (a)] The Legislature attempted to safeguard its policy of open records by adding subsection (b), which limits courts' encroachment on its legislatively established policy decisions.'' The dissent further protests: But if this Court has the power to broaden by judicial rule the categories of information that are ``confidential under other law,'' then subsection (b) is eviscerated from the statute. By determining what information falls outside subsection (a)'s scope, this Court may evade the mandates of subsection (b) and order information withheld whenever it sees fit. This not only contradicts the spirit and language of subsection (b), it guts it. Id. Finally, the opinion concluded by asserting that Justice Owen's interpretation, ``abandons strict construction and rewrites the statute to eliminate subsection (b)'s restrictions.'' These examples, together with the unusually harsh language directed at Justice Owen's position by the majority in the Doe cases, show a judge out of step with the conservative Republican majority of the Texas Supreme Court, a majority not afraid to explain the danger of her activist views. I am also greatly concerned about Justice Owen's record of ends- oriented decision making as a Justice on the Texas Supreme Court. As one reads case after case, particularly those in which she was the sole dissenter or dissented with the extreme right wing of the court, her pattern of activism becomes clear. Her legal views in so many cases involving statutory interpretation simply cannot be reconciled with the plain meaning of the statute, the legislative intent, or the majority's interpretation, leading to the conclusion that she sets out to justify some preconceived idea of what the law ought to mean. This is not an appropriate way for a judge to make decisions. This is a judge whose record reflects that she is willing and sometimes eager to make law from the bench. Justice Owen's activism and extremism is noteworthy in a variety of cases, including those dealing with business interests, malpractice, access to public information, employment discrimination and Texas Supreme Court jurisdiction, in which she writes against individual plaintiffs time and time again, in seeming contradiction of the law as written. One of the cases where this trend is evident is FM Properties v. City of Austin, 22 S.W. 3d 868, Tex. 1998. I asked Justice Owen about this 1998 environmental case at her hearing last July. In her dissent from a 6-3 ruling, in which Justice Alberto Gonzales was among the majority, Justice Owen showed her willingness to rule in favor of large private landowners against the clear public interest in maintaining a fair regulatory process and clean water. Her dissent, which the majority characterized as, ``nothing more than inflammatory rhetoric,'' was an attempt to favor big landowners. In this case, the Texas Supreme Court found that a section of the Texas Water Code allowing certain private owners of large tracts of land to create ``water quality zones,'' and write their own water quality regulations and plans, violated the Texas Constitution because it improperly delegated legislative power to private entities. The Court found that the Water Code section gave the private landowners, ``legislative duties and powers, the exercise of which may adversely affect public interests, including the constitutionally-protected public interest in water quality.'' The Court also found that certain aspects of the Code and the factors surrounding its implementation weighed against the delegation of power, including the lack of meaningful government review, the lack of adequate representation of citizens affected by the private owners' actions, the breadth of the delegation, and the big landowners' obvious interest in maximizing their own profits and minimizing their own costs. The majority offered a strong opinion, detailing its legal reasoning and explaining the dangers of offering too much legislative power to private entities. By contrast, in her dissent, Justice Owen argued that, ``[w]hile the Constitution certainly permits the Legislature to enact laws that preserve and conserve the State's natural resources, there is nothing in the Constitution that requires the Legislature to exercise that power in any particular manner,'' ignoring entirely the possibility of an unconstitutional delegation of power. Her view strongly favored large business interests to the clear detriment of the public interest, and against the persuasive legal arguments of a majority of the Court. When I asked her about this case at her hearing in July, I found her answer perplexing. In a way that she did not argue in her written dissent, at her hearing Justice Owen attempted to cast the F.M. case not as, ``a fight between and City of Austin and big business, but in all honesty, . . . really a fight about . . . the State of Texas versus the City of Austin.'' In the written dissent however, she began by stating the, ``importance of this case to private property rights and the separation of powers between the judicial and legislative branches. . .'', and went on to decry the Court's decision as one that, ``will impair all manner of property rights.'' That is 22 S.W. 3d at 889. At the time she wrote her dissent, Justice Owen was certainly clear about property rights for corporations. At her second hearing, I know that Chairman Hatch tried to recharacterize the F.M. Properties v. City of Austin case in an effort to make it sound innocuous, just a struggle between two jurisdictions over some unimportant regulations. I know how, through a choreography of leading questions and short answers, they tried to respond to my question from last July, which was never really answered, about why Justice Owen thought it was proper for the legislature to grant large corporate landowners the power to regulate themselves. Again, I am unconvinced. The majority in this case, which invalidated a state statute favoring corporations, does not describe the case or the issues as the chairman and the nominee have. A fair reading of the case shows no evidence of a struggle between governments. This is all an attempt at after-the-fact justification where there really is none to be found. Justice Owen and Chairman Hatch's explanation of the case also lacked even the weakest effort at rebutting the criticism of her by the F.M. Properties majority. As I mentioned, the six justice majority said that Justice Owen's dissent was, ``nothing more than inflammatory rhetoric.'' They explained why her legal objections were mistaken, saying that no matter what the state legislature had the power to do on its own, it was simply unconstitutional to give the big landowners the power they were given. Another case that concerned me is the case of GTE Southwest, Inc. v. Bruce, 990 S.W.2d 605, where Justice Owen wrote in favor of GTE in a lawsuit by employees for intentional infliction of emotional distress. The rest of the Court held that three employees subjected to what the majority characterized as ``constant humiliating and abusive behavior of their supervisor'' were entitled to the jury verdict in their favor. Despite the Court's recitation of an exhaustive list of sickening behavior by the supervisor, and its clear application of Texas law to those facts, Justice Owen wrote a concurring opinion to explain her difference of opinion on the key legal issue in the case-- whether the behavior in evidence met the legal standard for intentional infliction of emotional distress. Justice Owen contended that the conduct was not, as the standard requires, ``so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. . .'' The majority opinion shows Justice Owen's concurrence advocating an inexplicable point of view that ignores the facts in evidence in order to reach a predetermined outcome in the corporation's favor. At her first hearing, in answer to Senator Edwards' questions about this case, Justice Owen again gave an explanation not to be found in her written views. She told him that she agreed with the majority's holding, and wrote separately only to make sure that future litigants would not be confused and think that out of context, any one of the outrages suffered by the plaintiffs would not support a judgment. Looking again at her dissent, I do not see why, if that was what she truly intended, she did not say so in language plain enough to be understood, or why she thought it necessary to write and say it in the first place. It is a somewhat curious distinction to make--to advocate that in a tort case a judge should write a separate concurrence to explain which part of the plaintiff's case, standing alone, would not support a finding of liability. Neither her written concurrence, nor her answers in explanation after the fact, is satisfactory explanation of her position in this case. In City of Garland v. Dallas Morning News, 22 S.W. 3d 351, Tex. 2000, Justice Owen dissented from a majority opinion and, again, it is difficult to justify her views other than as based on a desire to reach a particular outcome. The majority upheld a decision giving the newspaper access to a document outlining the reasons why the city's finance director was going to be fired. Justice Owen made two arguments: that because the document was considered a draft it was not subject to disclosure, and that the document was exempt from disclosure because it was part of policy making. Both of these exceptions were so large as to swallow the rule requiring disclosure. The majority rightly points out that if Justice Owen's views prevailed, almost any document could be labeled draft to shield it from public view. Moreover, to call a personnel decision a part of policy making is such an expansive interpretation it would leave little that would not be ``policy.'' Quantum Chemical v. Toennies, 47 S.W. 3d 473, Tex. 2001, is another troubling case where Justice Owen joined a dissent advocating an activist interpretation of a clearly written statute. In this age discrimination suit brought under the Texas civil rights statute, the relevant parts of which were modeled on Title VII of the federal Civil Rights Act, and its amendments, the appeal to the Texas Supreme Court centered on the standard of causation necessary for a finding for the plaintiff. The plaintiff argued, and the five justices in the majority agreed, that the plain meaning of the statute must be followed, and that the plaintiff could prove an unlawful employment practice by showing that discrimination was ``a motivating factor.'' The employer corporation argued, and Justices Hecht and Owen agreed, that the plain meaning could be discarded in favor of a more tortured and unnecessary reading of the statute, and that the plaintiff must show that discrimination was ``the motivating factor,'' in order to recover damages. The portion of Title VII on which the majority relies for its interpretation was part of Congress's 1991 fix to the United States Supreme Court's opinion in the Price Waterhouse case, which held that an employer could avoid liability if the plaintiff could not show discrimination was ``the'' motivating factor. Congress's fix, in Section 107 of the Civil Rights Act of 1991, does not specify whether the motivating factor standard applies to both sorts of discrimination cases, the so-called ``mixed motive'' cases as well as the ``pretext'' cases. The Texas majority concluded that they must rely on the plain language of the statute as amended, which could not be any clearer that under Title VII discrimination can be shown to be ``a'' motivating factor. Justice Owen joined Justice Hecht in claiming that federal case law is clear--in favor of their view--and opted for a reading of the statute that would turn it into its polar opposite, forcing plaintiffs into just the situation legislators were trying to avoid. This example of Justice Owen's desire to change the law from the bench, instead of interpret it, fits President Bush's definition of activism to a ``T.'' Justice Owen has also demonstrated her tendency toward ends-oriented decision making quite clearly in a series of dissents and concurrences in cases involving a Texas law providing for a judicial bypass of parental notification requirements for minors seeking abortions. The most striking example is Justice Owen's expression of disagreement with the majority's decision on key legal issues in Doe 1. She strongly disagreed with the majority's holding on what a minor would have to show in order to establish that she was, as the statute requires, ``sufficiently well informed'' to make the decision on her own. While the conservative Republican majority laid out a well- reasoned test for this element of the law, based on the plain meaning of the statute and well-cited case law, Justice Owen inserted elements found in neither authority. Specifically, Justice Owen insisted that the majority's requirement that the minor be ``aware of the emotional and psychological aspects of undergoing an abortion'' was not sufficient and that among other requirements with no basis in the law, she, ``would require . . . [that the minor] should . . . indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion.'' That is In re Doe 1, 19 S.W.3d 249, 256, Tex. 2000. In her written concurrence, Justice Owen indicated, through legal citation, that support for this proposition could be found in a particular page of the Supreme Court's opinion in Planned Parenthood v. Casey. However, when one looks at that portion of the Casey decision, one finds no mention of requiring a minor to acknowledge religious or moral arguments. The passage talks instead about the ability of a State to ``enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear.'' That is Casey at 872. Justice Owen's reliance on this portion of a United States Supreme Court opinion to rewrite Texas law was simply wrong. As she did in answer to questions about a couple of other cases at her July hearing, Justice Owen tried to explain away this problem with an after the fact justification. She told Senator Cantwell that the reference to religion was not to be found in Casey after all, but in another U.S. Supreme Court case, H.L. v. Matheson. She explained that in, ``Matheson they talk about that for some people it raises profound moral and religious concerns, and they're talking about the desirability or the State's interest in these kinds of considerations in making an informed decision.'' But again, on reading Matheson, one sees that the only mention of religion comes in a quotation meant to explain why the parents of the minor are due notification, not about the contours of what the government may require someone to prove to show she was fully well informed. Her reliance on Matheson for her proposed rewrite of the law is just as faulty as her reliance on Casey. Neither one supports her reading of the law. She simply tries a little bit of legal smoke and mirrors to make it appear as if they did. This is the sort of ends-oriented decision making that destroys the belief of a citizen in a fair legal system. And most troubling of all was her indicating to Senator Feinstein that she still views her dissents in the Doe cases as the proper reading and construction of the Texas statute. I have read her written answers to questions from Senators after her second hearing, many newly formulated, that attempt to explain away her very disturbing opinions in the Texas parental notification cases. Her record is still her record, and the record is clear. She still does not satisfactorily explain why she infuses the words of the Texas legislature with so much more meaning than she can be sure they intended. She adequately describes the precedents of the Supreme Court of the United States, to be sure, but she simply does not justify the leaps in logic and plain meaning she attempted in those decisions. As I have mentioned with regard to some specific cases, Justice Owen's responses at her second hearing failed to alleviate these serious concerns nor did Senator Hatch's ``testimony'' at her second hearing, where he attempted to explain away cases about which I had expressed concern. The few explanations offered for the many other examples of the times her Republican colleagues criticized her were unavailing. The tortured reading of Justice Gonzales' remarks in the Doe case were unconvincing. He clearly said that to construe the law in the way that Justice Owen's dissent construed the law would be activism. Any other interpretation is just not credible. Or why in Montgomery Independent School District v. Davis, the majority criticized her for her disregard for legislative language, saying that, ``the dissenting opinion misconceives the hearing examiner's role in the . . . process,'' which it said stemmed from ``its disregard of the procedural elements the Legislature established . . . to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards.'' Or why, in Collins v. Ison- Newsome, a dissent joined by Justice Owen was so roundly criticized by the Republican majority, which said the dissent agrees with one proposition but then ``argues for the exact opposite proposition . . . [defying] the Legislature's clear and express limits on our jurisdiction.'' I have said it before, but I am forced to say it again. These examples, together with the unusually harsh language directed at Justice Owen's position by the majority in the Doe cases, show a judge out of step with the conservative Republican majority of the Texas Supreme Court, a majority not afraid to explain the danger of her activist views. No good explanation was offered for these critical statements last year, and no good explanation was offered two weeks ago. Politically motivated rationalizations do not negate the plain language used to describe her activism at the time. I would like to explain again that Justice Owen has been nominated to fill a vacancy that has existed since January, 1997. In the intervening 5 years, President Clinton nominated Judge Jorge Rangel, a distinguished Hispanic attorney from Corpus Christi, to fill that vacancy. Despite his qualifications, and his rating of well qualified by the ABA, Judge Rangel never received a hearing from the committee, and his nomination was returned to the President without Senate action at the end of 1998, after a fruitless wait of 15 months. On September 16, 1999, President Clinton nominated Enrique Moreno, another outstanding Hispanic attorney, to fill that same vacancy. This Harvard educated attorney, who received a unanimous well qualified from the ABA, did not receive a hearing on his nomination either--for more than 17 months. President Bush withdrew the nomination of Enrique Moreno to the Fifth Circuit and later sent Justice Owen's name in its place. It was not until May of last year, at a hearing chaired by Senator Schumer, that the Judiciary Committee heard from any of President Clinton's three unsuccessful nominees to the 5th Circuit. Last May, Mr. Moreno and Mr. Rangel testified along with a number of other Clinton nominees about their treatment by the Republican majority. Thus, Justice Owen was the third nominee to this vacancy but the first to be accorded a hearing before the committee. In fact, when the committee held its hearing on the nomination of Judge Edith Clement to the Fifth Circuit in 2001, it was the first hearing on a Fifth Circuit nominee in seven years. By contrast, Justice Owen was the third nomination to the Fifth Circuit on which the Judiciary Committee, under my chairmanship, held a hearing in less than one year. In spite of the treatment by the former Republican majority of so many moderate judicial nominees of the previous President, we proceeded last July with a hearing on Justice Owen and, for that matter, with hearings for Judge Charles Pickering. We proceeded with committee debate and votes on all three of President Bush's Fifth Circuit nominees despite the treatment of President Clinton's nominees by the Republican majority. President Bush has said on several occasions that his standard for judging judicial nominees would be that they ``share a commitment to follow and apply the law, not to make law from the bench.'' Priscilla Owen's record, as I have described it today, and as we described it a few weeks ago in committee and last September, does not qualify her for a lifetime appointment to the Federal bench. As I have demonstrated many times, I am ready to consent to the confirmation of consensus, mainstream judges, and I have on hundreds of occasions. But the President has resent the Senate a nominee who raises serious and significant concerns. I oppose this nomination. Mr. President, I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Madam President, I rise today in support of S. 196, the Digital and Wireless Technology Program Act, which will provide $250 million annually for the next 5 years to address the technology needs of Historically Black Colleges and Universities, as well as colleges and universities that serve substantial numbers of Hispanic and Native American students. The ``digital divide'' has been the subject of much discussion in both the public and private sectors, and this bipartisan bill, introduced by Senators Allen and Hollings, will help to bridge that divide. Internet access is an increasingly critical part of the educational process. The Internet provides a critical research tool, especially for students at institutions that cannot afford to offer world-class libraries and other facilities. Indeed, internet access can be a great democratizing force if we can make it universal. Although almost all Historically Black Colleges and Universities have a campus network in place, only about half have computers available to students in their dormitories, and only 3 percent offer financial aid to students looking to buy a computer. In addition, a majority of these schools do not use high-speed connections, even when those connections are available in their areas. Additional funding for these colleges should make a difference. The schools struggling most mightily are those that serve Native American students. Nearly 85 percent of students at tribal colleges live at or below the poverty level, so few if any students can afford their own computers. But at Dull Knife Memorial College in Montana, 240 students must share two computers with internet access. Fewer than half of the 32 tribal colleges have access to a T-1 line. There are some success stories, however, and with additional Federal assistance we can create more. While I am concerned about the lack of internet access among minority students, I do hope that these colleges and universities will work closely with their local communities in siting wireless facilities. The 1996 Telecommunications Act regrettably cut out local communities in deciding where new towers for wireless devices are located. The new grant program created by this bill should not be used to exacerbate this problem. This issue is not new to the Senate. Senator Cleland introduced very similar legislation in the last Congress, and his bill was reported by the Commerce committee. Regrettably, it was held up by the Republican leadership in the Senate, presumably in order to deny Senator Cleland any victory as he sought re-election. Given the dire state of many of the schools this bill seeks to help, it is quite frustrating that Senator Cleland's bill fell victim to political machinations. It is doubly unfortunate that suggestions to name this program after Senator Cleland were rebuffed by the Republican side. It would have been a fitting tribute to the Senator who brought this and many other issues to the Senate's attention. Despite my disappointment about that issue, however, I still believe that this is a good bill that deserves every Senator's support. It will help institutions around our Nation provide the education that their students need and deserve.

Mr. LEAHY

Mr. LEAHY. Mr. President, last November, the Drug Competition Act passed the Senate by unanimous consent. This morning, I am proud to join Senator Grassley, along with Senators Durbin, Feingold, Kohl and Schumer in re-introducing this important bill, I hope that in this Congress it is actually enacted into law. Prescription drug prices are rapidly increasing, and are a source of considerable concern to many Americans, especially senior citizens and families. Generic drug prices can be as much as 80 percent lower than the comparable brand name version. While the Drug Competition Act is small in terms of length, it is large in terms of impact. It will ensure that law enforcement agencies can take quick and decisive action against companies that are driven more by greed than by good sense. It gives the Federal Trade Commission and the Justice Department access to information about secret deals between drug companies that keep generic drugs off the market. This is a practice that hurts American families, particularly senior citizens, by denying them access to low-cost generic drugs, and further inflating medical costs. Last fall, the Federal Trade Commission released a comprehensive report on barriers the entry of generic drugs into the pharmaceutical marketplace. The FTC had two recommendations to improve the current situation and to close the loopholes in the law that allow drug manufacturers to manipulate the timing of generics' introduction to the market. One of those recommendations was simply to enact our bill, as the most effective solution to the problem of ``sweetheart'' deals between brand name and generic drug manufacturers that keep generic drugs off the market, thus depriving consumers of the benefits of quality drugs at lower prices. In short, this bill enjoys the unqualified endorsement of the current FTC, which follows on the support by the Clinton Administration's FTC during the initial stages of our formulation of this bill. We can all have every confidence in the common sense approach that our bill takes to ensuring that our law enforcement agencies have the information they need to take quick action, if necessary, to protect consumers from drug companies that abuse the law. Under current law, the first generic manufacturer that gets permission to sell a generic drug before the patent on the brand-name drug expires, enjoys protection from competition for 180 days--a headstart on other generic companies. That was a good idea--but the unfortunate loophole exploited by a few is that secret deals can be made that allow the manufacturer of the generic drug to claim the 180- day grace period--to block other generic drugs from entering the market--while, at the same time, getting paid by the brand-name manufacturer not to sell the generic drug. Our legislation closes this loophole for those who want to cheat the public, but keeps the system the same for companies engaged in true competition. I think it is important for Congress not to overreact and throw out the good with the bad. Most generic companies want to take advantage of this 180-day provision and deliver quality generic drugs at much lower costs for consumers. We should not eliminate the incentive for them. Instead, we should let the FTC and Justice look at every deal that could lead to abuse, so that only the deals that are consistent with the intent of that law will be allowed to stand. The Drug Competition Act accomplishes precisely that goal, and helps ensure effective and timely access to generic pharmaceuticals that can lower the cost of prescription drugs for seniors, for families, and for all of us. I regret that some in the Senate stalled action on this worthwhile measure until very late in the last Congress and that the House chose not to act at all, and I hope that the growing need for more cost- effective health care solutions will serve as a catalyst for quick action on this needed legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, this morning we are going to vote on the nomination of Jeffrey Sutton to the U.S. Court of Appeals for the Sixth Circuit. Yesterday, I spoke about some of my concerns, but I want to again discuss my serious concerns with this nominee. Mr. Sutton has a legal philosophy focused on limiting Congress' historic role in protecting the civil and constitutional rights of all Americans. He has led an aggressive campaign to dismantle longstanding Federal laws, enacted with bipartisan support, that have made this country more inclusive over the last half-century, and to close access to the Federal courts for people challenging illegal acts by their State governments. As a lawyer in private practice, he has aggressively sought out cases to limit the power of Congress to enact laws protecting individual rights, and has been dismissive of congressional findings and hearings supporting important Federal laws. He has sought to weaken, among other laws, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Violence Against Women Act, and the Religious Freedom Restoration Act. He has also sought to limit the ability of Medicaid recipients to enforce their rights and the ability of individuals to enforce disparate impact regulations under title VI of the Civil Rights Act. In essence, he has argued for the Supreme Court to repudiate more than 25 years of legal precedents that permitted individuals to sue States when they violate Federal civil rights regulations. His extreme judicial philosophy would undermine the rights of State workers, disabled individuals, women, children, racial and ethnic minorities, and senior citizens. Mr. Sutton and his supporters have claimed that he was merely acting on behalf of his clients in all these cases, but this claim is unconvincing. Mr. Sutton had no obligation to participate in any of the cases taken after he left the Ohio State Solicitor's office in 1998. In fact, he has admitted that he sought out cases curtailing congressional power as a private lawyer and that he is on the ``lookout'' for these cases. He has aggressively pursued a national role as the leading advocate of States' rights and, as my colleagues have noted, he has stated that his advocacy on the principles of federalism is something that he believes in. He has made statements praising many of the Supreme Court's decisions undermining Congress' authority to protect and assist citizens, and in his personal writings and speeches he has advocated an even narrower view of Congress' role. Perhaps most significantly, Mr. Sutton has taken not a single case that supports congressional power to enact laws protecting civil and individual rights. In each case he has argued before the Supreme Court he has always been on the same side of this issue--arguing that individuals have no right to enforce the civil rights protections that Congress has given them. This must be more than a coincidence. His personal writings and speeches promote his theory that State laws adequately protect civil liberties, and display a lack of respect and understanding for Congress' long-standing role in protecting individual rights. Mr. Sutton has stated in several articles that States should be the principal bulwark in protecting civil liberties, a claim that has serious implications given a history of State discrimination against individuals. In numerous papers for the Federalist Society, he has repeatedly stated his belief that federalism is a ``zero-sum situation, in which either a State or a Federal lawmaking prerogative must fall.'' In his articles, he has stated that the federalism cases are a battle between the States and the Federal Government, and ``the national government's gain in these types of cases invariably becomes the State's loss, and vice versa.'' He also states that federalism is ``a neutral principle'' that merely determines the allocation of power. This view of federalism is not only inaccurate but troubling. These cases are not battles in which one law- making power must fall, but in which both the State and the Federal government--and the American people--may all win. Civil rights laws set Federal floors or minimum standards but States remain free to enact their own more protective laws. Moreover, federalism is not a neutral principle as Mr. Sutton suggests, but has been used by those critical of the civil rights progress of the last several decades to limit the reach of Federal laws. Mr. Sutton tried to disassociate himself from these views, by saying that he was constrained to argue the positions that he argued on behalf of his clients. As far as I know, no one forced Mr. Sutton to write any article, and most lawyers are certainly more careful than to attribute their name to any paper that professes a view with which they strongly disagree. In my view, Mr. Sutton's suggestions that he does not personally believe what he has written are intellectually dishonest and insincere. I would also like to respond to the claim by those of the other side of the aisle. Those opposed to Mr. Sutton's confirmation believe he has a personal antipathy to people with disabilities. I know of no Senator who is claiming that Mr. Sutton has a personal antipathy to the disabled. I have heard from hundreds of people and organizations who express concern that millions of disabled individuals have been harmed by his broad advocacy to limit the rights of the disabled as a class. The fact is that Mr. Sutton has chosen to argue against the rights of people with disabilities in three major cases to the Supreme Court; that he has argued that the ADA is ``not needed''; and that he has devoted his career to making States less accountable. I have been stunned by the Republican Senators who have come to this floor to argue that Senators should not consider a lawyer's representation of clients in considering a judicial nomination. I am stunned because so many of them voted against so many nominees of President Clinton on that very basis, but they now condemn the approach they themselves took--without, of course, acknowledging the contradiction. I am reminded that a key member of this President's judicial nomination selection team, his former White House Deputy Counsel testified before the Senate in 1997 that: Although the Senate Judiciary Committee has long recognized--correctly, in my view--that positions taken as an advocate for a client do not necessarily reflect a nominees own judicial philosophy, a long history of cases in which a nominee has repeatedly urge courts to engage in judicial activism may well be probative of the nominee's own philosophy. With this nomination, we have Mr. Sutton's admissions in statements and interviews and articles outside the courtroom that he believes strongly in this ``federalism stuff.'' Mr. Sutton is opposed by more than 400 disability and civil rights organizations. They have concluded that his ideological views and extremely narrow reading of the Constitution make it doubtful that he would be a fair and balanced judge. The burden is on Mr. Sutton to show that he will protect individual rights and civil rights as a lifetime appointee to the Sixth Circuit Court of Appeals. This he has not done. The oath taken by Federal judges affirms their commitment to ``administer justice without respect to persons, and of equal right to the poor and to the rich.'' No one who enters a Federal courtroom should have to wonder whether he or she will be fairly heard by the judge. Jeffrey Sutton's record does not show that he will put aside his years of passionate advocacy in favor of States' rights and against civil rights and his extreme positions limiting Congress' authority to protect all Americans. Accordingly, I will not vote to confirm Mr. Sutton for appointment to one of the highest courts in the land.

Mr. LEAHY

Mr. LEAHY. Mr. President, last November, the Drug Competition Act passed the Senate by unanimous consent. This morning, I am proud to join Senator Grassley, along with Senators Durbin, Feingold, Kohl and Schumer in re-introducing this important bill, I hope that in this Congress it is actually enacted into law. Prescription drug prices are rapidly increasing, and are a source of considerable concern to many Americans, especially senior citizens and families. Generic drug prices can be as much as 80 percent lower than the comparable brand name version. While the Drug Competition Act is small in terms of length, it is large in terms of impact. It will ensure that law enforcement agencies can take quick and decisive action against companies that are driven more by greed than by good sense. It gives the Federal Trade Commission and the Justice Department access to information about secret deals between drug companies that keep generic drugs off the market. This is a practice that hurts American families, particularly senior citizens, by denying them access to low-cost generic drugs, and further inflating medical costs. Last fall, the Federal Trade Commission released a comprehensive report on barriers the entry of generic drugs into the pharmaceutical marketplace. The FTC had two recommendations to improve the current situation and to close the loopholes in the law that allow drug manufacturers to manipulate the timing of generics' introduction to the market. One of those recommendations was simply to enact our bill, as the most effective solution to the problem of ``sweetheart'' deals between brand name and generic drug manufacturers that keep generic drugs off the market, thus depriving consumers of the benefits of quality drugs at lower prices. In short, this bill enjoys the unqualified endorsement of the current FTC, which follows on the support by the Clinton Administration's FTC during the initial stages of our formulation of this bill. We can all have every confidence in the common sense approach that our bill takes to ensuring that our law enforcement agencies have the information they need to take quick action, if necessary, to protect consumers from drug companies that abuse the law. Under current law, the first generic manufacturer that gets permission to sell a generic drug before the patent on the brand-name drug expires, enjoys protection from competition for 180 days--a headstart on other generic companies. That was a good idea--but the unfortunate loophole exploited by a few is that secret deals can be made that allow the manufacturer of the generic drug to claim the 180- day grace period--to block other generic drugs from entering the market--while, at the same time, getting paid by the brand-name manufacturer not to sell the generic drug. Our legislation closes this loophole for those who want to cheat the public, but keeps the system the same for companies engaged in true competition. I think it is important for Congress not to overreact and throw out the good with the bad. Most generic companies want to take advantage of this 180-day provision and deliver quality generic drugs at much lower costs for consumers. We should not eliminate the incentive for them. Instead, we should let the FTC and Justice look at every deal that could lead to abuse, so that only the deals that are consistent with the intent of that law will be allowed to stand. The Drug Competition Act accomplishes precisely that goal, and helps ensure effective and timely access to generic pharmaceuticals that can lower the cost of prescription drugs for seniors, for families, and for all of us. I regret that some in the Senate stalled action on this worthwhile measure until very late in the last Congress and that the House chose not to act at all, and I hope that the growing need for more cost- effective health care solutions will serve as a catalyst for quick action on this needed legislation.

Mr. LEAHY

Mr. LEAHY. Mr. President, I might note before I begin, seeing the distinguished occupant of the Chair, who is my neighbor across the Connecticut River--and both he and I, as natives of our States, know you never want to jump to hasty conclusions--it appears that spring is actually coming to New Hampshire and Vermont. It does not mean the bud season is over, but crocuses have been spotted. And, as one of my neighbors used to tell me: The croci have appeared. Our official reporter, Patrick Renzi, is going to figure out how to spell ``croci,'' and I will be no help to him at all. I am sure, with how good all the reporters are, those who take down our debates here in the Senate, how superb they all are, they will find the correct spelling. Mr. President, on a more serious matter, Senator Hatch, Senator Kennedy, Senator DeWine, Senator Voinovich, and Senator Harkin have spoken about the Sutton nomination, and I want to speak to it, too. Today, the Senate is considering the nomination of Jeffrey Sutton of Ohio to the U.S. Court of Appeals for the Sixth Circuit. The responsibility to advise and consent on the President's life- tenured judicial nominees is one that I take seriously and is not an occasion to rubber stamp. And I have taken that position whether we have had a Republican or Democrat in the White House. The nomination of Jeffrey Sutton presents a number of areas of concern to me. For these reasons, I, along with seven other members of the Judiciary Committee, voted against Mr. Sutton in Committee and I will vote against him being confirmed to a lifetime position on the U.S. Court of Appeals for the Sixth Circuit. The number of individual citizens who came to the hearing to oppose Mr. Sutton, along with the number of Senators who came to question Mr. Sutton, several times in some cases, is some indication of the controversial nature of this nomination. The hearing had to be moved to a bigger room, a room that had been reserved in advance of the hearing, in order to accommodate the public interest in the nomination. I thanked the Chairman to acceding to my suggestion and the suggestions of others to move the hearing into the larger hearing room in order to provide access to the public and, in particular, those members of the public who are disabled. In the days preceding his hearing, the Committee received thousands of letters from individuals and organizations, both in and out of Ohio, expressing concerns about appointing Mr. Sutton to the Sixth Circuit, and those letters raise serious issues. Mr. Sutton did not clear up these concerns at his hearing. In fact, his answers to many Senators' concerns, along with his answers to follow-up written questions, seem to raise even more concerns about his impartiality and judgment. In the few weeks before Mr. Sutton was voted on by the Committee, we received hundreds of calls from individuals and organizations opposed to his nomination. Since he was voted on in Committee, opposition has continued to mount, and I and other Senators have received numerous additional letters of opposition and calls from citizens across the country opposing Mr. Sutton. In fact, these are among the letters I have received, from Members of Congress to individuals, in opposition to Mr. Sutton. It weighs about 25 pounds just lifting the letters. From my own State of Vermont, I have received letters of opposition, such as a letter from the Vermont Council on Independent Living, and I continue to receive phone calls opposing Mr. Sutton. What I heard and what I continue to hear about this nominee, from people in Ohio and around the country, is troubling. Mr. Sutton is clearly a bright, legally capable, and accomplished attorney. Yet, as a lawyer, in his own personal writings, and on his own time, he has sought out opportunities to attack federal laws and programs designed to guarantee civil rights protections. Let me be clear, unlike what those on the other side of the aisle may say, I am not opposing Mr. Sutton because he ``happened'' to represent clients whose positions I may disagree with. I have voted on thousands of Federal judges since I have been here, many of them representing clients I totally disagreed with on positions diametrically opposite to my own. As my record shows, I have voted for more than 100 of President Bush's judicial nominees, many of whom took positions or represented clients with which I disagreed, including President Bush's two prior nominees to the Sixth Circuit, who were confirmed while I was Chairman of the Judiciary Committee. While I disagreed with a number of the positions they took, I made sure they had hearings, and I made sure they were confirmed. Those on the other side of the aisle continue to wrongly characterize Senators' opposition to Mr. Sutton. They claim that those who are opposed to his lifetime confirmation object only to the clients he represented or the court decisions in the cases he argued. Nothing could be further from the truth. For example, I served in private practice. I defended clients charged with crimes. Then I was a prosecutor, and I prosecuted people charged with crimes. I did a lawyer's job in making sure there was adequate representation on both sides. My opposition to Mr. Sutton is not based on his clients. It is based on the fact that Mr. Sutton has aggressively pursued a national role as the leading advocate of states' rights and has pushed extreme positions in order to limit the ability of Congress to protect civil rights. Moreover, he displayed at his hearing and in his written questions, that he is not able to put aside these strong personal views in order to be fair and impartial. It was Republicans who most recently held up or voted against a number of President Clinton's circuit court nominees because they were concerned about the clients the nominee represented or disagreed with the nominee's ideology. For example, President Clinton nominated Timothy Dyk to be a judge on the U.S. Court of Appeals for the Federal Circuit. Judge Dyk was originally nominated in April 1998 but was not confirmed by the Republican-controlled Senate until more than two years later, in May 2000. Judge Dyk received 25 votes against him on the Senate floor, many of them from Republicans who objected to the clients he represented. For example, former Senator Smith, voting against Judge Dyk, explicitly stated that he did not approve of the clients Mr. Dyk represented on a pro bono basis, such as the well-known and well-respected organization People for the American Way. Other Senators who voted against Judge Dyk, expressed concern over Judge Dyk's involvement in a case in which he represented the Action for Children's Television in a challenge to FCC regulations. As I have said, I have voted to confirm hundreds of individuals who have represented unpopular clients or positions with which I disagreed. I would like to note, that some of the most respected judges in our history are judges who have stood up to unpopular sentiment to protect the rights of minorities or people whose views made them outcasts. Mr. Sutton is not one of these people. In fact, he has done the opposite. He has stood up for states' rights and against civil rights, and for an arcane constitutional theory over the rights of injured individuals. Any simplification of the opposition against Mr. Sutton as based solely on who he represented is false and misleading. I have taken a careful look at Mr. Sutton's advocacy record along with his personal writings and speeches. Mr. Sutton has acted as more than just counsel, he has aggressively pursued a national role as the leading advocate of a certain view of federalism and he has succeeded in pushing extreme positions in order to limit the ability of Congress to act to prevent discrimination and protect civil rights. Mr. Sutton himself has stated that his advocacy on the principles of federalism are not just arguments he makes for his clients, but something in which he strongly believes. In a Legal Times article, he was quoted as saying, ``It doesn't get me invited to cocktail parties. But I love these issues. I believe in this federalism stuff.'' Let me just note that, when asked about this comment at his hearing, Mr. Sutton provided conflicting answers. First, he told me that this comment was in response to his pursuit of Supreme Court cases after he left the State Solicitor's office and returned to private practice at Jones Day. However, when later asked about the same comment by Senator DeWine, Mr. Sutton stated that, at the time of the article, he was State Solicitor and that he was on the lookout for cases because the Ohio Attorney General asked him to look for cases that affected the State. In follow-up written questions, while Mr. Sutton admits that he was on the lookout for Supreme Court cases at Jones Day, he disavows that he was similarly on the lookout as State Solicitor. Rather, he states that he was only a ``subordinate'' and that ``everything [he was] described as doing in the article was done to further'' the interests of the Ohio Attorney General. In contrast, the Legal Times article had several other sources who corroborated that it was Mr. Sutton's own efforts and passion that led to Ohio taking so many cases before the U.S. Supreme Court to assert state sovereign immunity. For example, the Supreme Court Counsel for the National Association of Attorneys General (who applauds Mr. Sutton's work), said that Mr. Sutton was a ``court-watcher'' with a ``first-out-of-the-gate aggressiveness'' who had ``taken a very active role'' in taking on federalism cases. Based on Mr. Sutton's passionate advocacy and personal efforts to challenge and weaken federal laws and individual rights, and his extreme activism against federal protection for state workers, a large number of disability rights groups, civil rights groups, environmental protection groups, and women's rights groups are opposed to his confirmation. It is unprecedented for the disability community to speak out so loudly in opposition to a judicial nominee. Overall, his nomination to the Sixth Circuit is opposed by hundreds of national, state and local disability groups, and thousands of individuals. Mr. Sutton has advocated for states' rights over civil rights and has sought to limit individuals' ability to be compensated when their rights are violated. Mr. Sutton's record reveals a strong desire to limit Congress' power to pass civil rights laws and to limit the ability of individuals to seek redress for existing civil rights violations. In the last six years, as both a State Solicitor and in private practice, Mr. Sutton has been the leading advocate urging the Supreme Court to develop a new jurisprudence that uses states' rights as grounds to limit the reach of federal laws on behalf of the disabled, the aged, women, and environmental protection. He has argued major cases on civil rights, religion, health care, and education, and, in all of these cases, his arcane constitutional theory of the Eleventh Amendment--not based on text, legislative history, or decades of precedent--has undermined the rights of millions of people. He has argued, among other things, that Congress exceeded its authority in passing the Religious Freedom Restoration Act, enacted in 1993 with broad bipartisan support under the leadership of Senator Kennedy and Senator Hatch, and parts of the Americans with Disabilities Act of 1990, a bipartisan bill championed by former Senator Bob Dole and Senator Harkin, the Age Discrimination in Employment Act, and the Violence Against Women Act of 1994, a bipartisan act cosponsored by Senator Hatch and Senator Biden. In addition to weakening Congress' ability to protect the rights of individuals, Mr. Sutton has sought to limit the ability of individuals to seek redress in federal court for civil rights violations. For example, he has argued to limit the remedies available to victims of sexual abuse and to limit the ability of Medicaid recipients to enforce their rights under the law. In essence, he has argued for the Supreme Court to repudiate more than 25 years of legal precedents that permitted individuals to sue states to prevent violations of federal civil rights regulations. One of Mr. Sutton's most recent and significant cases in which he attempted to erode legal rights passed by Congress was Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), a case in which he argued that Congress exceeded its authority in enacting certain provisions of the Americans with Disabilities Act. In this case, in which a nursing director was demoted after undergoing treatment for breast cancer, Mr. Sutton argued against the ability of state employees to sue under Title I of the ADA for money damages if their employer discriminated against them. Mr. Sutton argued that alleged discrimination against the disabled should only receive ``rational basis'' review and that Congress unconstitutionally elevated the standard for disability discrimination in the ADA, an argument that would severely limit Congress' authority to protect individual rights. Moreover, he argued that Congress had not identified a pattern of abuse, despite extensive hearings and findings of discriminatory actions by states, including unnecessary institutionalization and denials of education. During oral argument, Mr. Sutton even said that the ADA was not needed and that the case was a ``challenge to the ADA across the board.'' Mr. Sutton was questioned heavily about his involvement in the Garrett case both at his hearing and in follow-up written questions, but his answers were incomplete and deeply disturbing. Most of his answers flatly contradicted statements that he made in either his legal briefs or articles, or danced around the important substantive issues raised. Moreover, he consistently tried to redirect any questions about his involvement in Garrett to be a discussion about the only case prior to his nomination in which he represented a disabled individual. He is a skilled oral advocate and his skills were on display at his hearing. That is not the question. The question before us is whether he should be confirmed to be a circuit judge, not whether we would like him to argue an appellate case. At his hearing, Mr. Sutton repeatedly brought up his involvement in Ohio Civil Rights Comm'n v. Case Western Reserve University, 666 N.E. 2d 1376 (Ohio 1996), a case involving a blind student denied admission to medical school, as an example of the idea that he is sympathetic to persons with disabilities. While no one that I know of has alleged that Mr. Sutton has any personal antipathy to people with disabilities, it troubles me that he has used his representation in this case as a response to questions I and other Senators asked about his involvement in the Garrett case. He testified that he was involved in the Garrett case, without examining the issue of whether his representation would help or hurt people, or was legally right or wrong, because he was eager to develop a Supreme Court practice. The situation in the Case Western case is, perhaps, more revealing than Mr. Sutton thought when he placed so much reliance on it. In that case, Mr. Sutton was the Ohio Solicitor General in charge of all of the State of Ohio's appeals and, in such a capacity, he would normally have represented a state agency, like the Ohio Civil Rights Commission. Mr. Sutton's statements regarding how he came to take this case are widely divergent and irreconcilable: In his Senate Questionnaire, he states that the case ``fell'' to him as Ohio State Solicitor, since it ``fell'' to the Ohio Attorney General to defend the Commission's decision through the state courts. At his hearing, he testified that he had a choice of which side to take and that it was his job to make a recommendation to the Attorney General. And, in answer to my follow-up questions, he states that he chose to represent the Commission and, thereafter, ``did not have discretion to recommend'' to the Attorney General that she not weigh in on the state medical schools' side of the case. I still do not understand why the Attorney General had to agree to represent the state universities as an amicus party on the other side of the Civil Rights Commission in this case, and would guess that in almost all cases the Attorney General's office did not represent an amicus on the opposite side of a case from a state agency. Regardless, I am troubled by Mr. Sutton's reliance on this case. Not only does Mr. Sutton's descriptions of his involvement in this case create irreconcilable differences, but his answers display an advocate's skills rather than a judicious consideration of the situation. It troubles me that Mr. Sutton's answers indicate that he believes that the representation of a blind student in one case--and a case in which he acted in his official capacity--balances out the significant detrimental impact that his extreme arguments in Garrett had on millions of disabled individuals. There is nothing that can undo the elimination of rights by Garrett. Mr. Sutton's argument indicates a commitment to ideology over people and convinces me that he is not able to put aside his advocacy even to present his involvement in a case objectively. Mr. Sutton has also tried to claim that he has represented many clients pro bono. However, in answer to my written questions, he indicates that he did not argue any other case involving disability rights prior to his nomination in May 2001. Since he submitted his original Senate Questionnaire in 2001, he notified us--in January 2003--that he has taken on two death penalty cases and other criminal appeals. He also argued one disability rights case, involving whether the Ohio Secretary of State violated the National Voter Registration Act in failing to designate the disability services offices at state universities as registration sites. This seems like the classic case of ``nomination conversion,'' a nominee who has had his whole career to work on different sides of issues, but, only after he is nominated, does he take cases to ``balance'' out his record. It must certainly be more than a coincidence that every time he chose as a lawyer in private practice to argue a disability rights case before his nomination, he was always on the same side of this issue against the rights of disabled individuals. Among Mr. Sutton's many other attempts to erode essential legal rights passed by Congress are: Olmstead v. LC, 527 U.S. 581 (1999), a case involving Title II of the ADA, where Mr. Sutton argued on behalf of the petitioners that it should not be a violation of the ADA to force people with mental disabilities to remain in an institutionalized setting rather than a community-based program despite clear Congressional findings to the contrary. Mr. Sutton's arguments in this case were accepted by Justices Scalia and Thomas, but rejected by the majority of the Court. Pennsylvania Dept of Corrections v. Yeskey, 524 U.S. 206 (1998), where Mr. Sutton filed an amicus brief arguing that the ADA does not apply to state prison systems, a position which would have furthered weakened the ADA and severely limited its applicability, had it been accepted. Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), where Mr. Sutton argued for severe limits on the ability of state employees to sue under the Age Discrimination in Employment Act, stating that older workers are adequately protected by local anti-discrimination laws, and that Congress had no record of a pattern and practice of prior constitutional violations by the States and that Congress exceeded its authority since the legislation was concerned with age and not with ``suspect'' classifications like race and national origin. The four Supreme Court Justices dissenting in this case stated that the decision will have a serious impact on Congress' authority and ability to protect civil rights and represented a ``radical departure'' from the proper role of the Supreme Court. United States v. Morrison, 529 U.S. 598 (2000), where he filed an amicus curiae brief on behalf of one state, the state of Alabama, challenging the constitutionality of the federal civil remedy for women who are the victims of sexual assault and domestic violence in the Violence Against Women Act. Of note, VAWA was passed by a broad and bipartisan coalition, and 36 states submitted briefs in support of the constitutionality of the Act. Mr. Sutton argued, and the 5-4 majority of the Court accepted, that gender-based violence does not substantially affect interstate commerce because it is not an ``economic'' activity and the impact of such crimes has only an attenuated connection to interstate commerce. He also argued that the civil remedy provision for private acts of gender-motivated violence was not permissible under Section 5 of the Fourteenth Amendment. Alexander v. Sandoval, 532 U.S. 275 (2001), where he argued that individuals could not privately enforce disparate impact regulations promulgated under Title VI of the Civil Rights Act of 1964. The Sandoval decision reversed an understanding of the law that had been in place for more than 27 years, and makes it nearly impossible to enforce a range of practices with an unjustified disparate impact, such as disproportionate toxic dumping in minority neighborhoods, the use of educationally unjustified testing or tracking practices that harm minority students, or the failure to provide appropriate language services in health facilities. Mr. Sutton argued not only that the disparate impact regulations could not be privately enforced, but that these regulations were an invalid exercise of agency power. If this argument had been accepted by the Court, it would have made it impossible for even the federal government to enforce actions with an unjustified disparate impact. In addition, Mr. Sutton argued in his brief and in oral argument that implied rights of actions are never permissible under the spending power, an argument that the Court also did not accept. Westside Mothers v. Haveman, 1313 F.Supp.2d 549 (E.D. Mich. 2001), where he argued that Medicaid recipients have no legal rights to sue states in order to enforce their rights under Medicaid. Mr. Sutton's primary argument, which formed the core of the district court's ruling, was that Spending Clause statutes were not ``federal law,'' but simply a contract. He then argued that because Spending Clause statutes were simply contracts, the individuals who sought to enforce the contract were mere third-party beneficiaries to such contracts and were not enforcing any federal laws and thus suit could not be brought under Section 1983. Such far-reaching arguments go well-beyond the Supreme Court's jurisprudence, and were ultimately rejected by the Sixth Circuit Court of Appeals, in a case with significant implications for economically disadvantaged individuals. City of Boerne v. Flores, 521 U.S. 507 (1997), where he argued in an amici curiae brief on behalf of 16 states that the Religious Freedom Restoration Act (RFRA) exceeded Congress' power under Section 5 of the Fourteenth Amendment and violated state sovereignty, stating that Congress could not enact a sweeping law without any evidence that religious freedoms were being interfered with and urging that the states ``be the principal bulwark when it comes to protecting civil liberties.'' Mr. Sutton applauded the court's ruling as ``a watershed case . . . respecting states' ability to govern themselves and to look after religious liberties themselves,'' according to a Washington Post article, and, in an essay written for the Federalist Society, he praised the decision as a ``victory for federalism.'' Mr. Sutton's record shows his tendency to present arguments with broad implications that go well-beyond where even the activist, conservative majority on the Supreme Court has been willing to go. For example, in Garrett and Kimel, he advocated a very narrow view of Section 5 of the Fourteenth Amendment (the clause which allows for legislation to enforce that Amendment) so that little remedial legislation in the civil rights area could pass muster unless the plaintiffs can prove longstanding and well documented abuses by the states. Mr. Sutton's arguments in the case involving the Violence Against Women Act also went beyond what the Court accepted. For example, he stated that ``the record is utterly devoid of support for the notion that the States . . . have violated the rights of their citizens.'' Amicus Curiae Brief in Support of Respondents, 1999 WL 1191432 at 19. Mr. Sutton took a more jaundiced view than the Supreme Court of evidence of discrimination; which could certainly translate into harsher rulings against women and minority interests. Moreover, in an article after the VAWA decision, Mr. Sutton demonstrates his support for the court's outcome and his view of Congress. He wrote: Once accepted, only the most unimaginative lawmaker would lack the resources to contend that all manner of in-State activities will have rippling effects that ultimately affect commerce. Such an approach would have a disfiguring effect on the constitutional balance between the States and the National Government . . . and would ultimately make irrelevant virtually every other delegation of power to Congress under Article I. Unexamined deference to the VAWA fact findings would have created another problem as well. It would give any congressional staffer with a laptop the ultimate Marbury power to have a final say over what amounts to interstate commerce and thus to what represents the limits on Congress's Commerce Clause powers. These condescending comments towards Congress are troubling. In general, Congress is uniquely situated to gather facts from across the nation, obtain information from constituents who have first-hand experience with the issues, and assess the magnitude of the problem. Moreover, VAWA was passed after numerous hearings, extensive inquiry, and fact-finding and with the bipartisan support of the Senate and House, the President and most states. Mr. Sutton stated at his hearing that he has not attacked disability or other civil rights but has, instead, merely acted as an advocate for his clients, advancing a theory of limited government. Yet the record reveals that he has not simply taken an unpopular position in the name of zealously representing the interests of his clients. As I have described, Mr. Sutton has often taken extreme positions and his record is one of activism in order to limit the ability of Congress to act to prevent discrimination and protect civil rights. It seems to me to be no coincidence that Mr. Sutton has been the chief lawyer in case after case arguing that individuals have no right to enforce the civil rights protections that Congress has given them. As I noted, Mr. Sutton has said that he has been ``on the lookout'' for cases where he can raise issues of federalism or that will affect local and state government interests. And his federalism practice boomed as he actively pursued cases attractive to his ideology and through his contacts among the members of the Federalist Society. In answer to my follow-up questions, Mr. Sutton admitted that he had taken no case in which he argued against a state claiming immunity from suit under the Eleventh Amendment. Despite his protestation that he might argue either side of any case, it must certainly be more than a coincidence that every time he has argued before the Supreme Court he has always been on the same side of this issue. Despite numerous questions, Mr. Sutton did not adequately address these concerns at his hearing nor show that he has the ability to put aside his years of passionate advocacy and treat all parties fairly. On the contrary, when you talk to Mr. Sutton and you look at his testimony, he demonstrates he has not considered the impact that his arguments have on the lives of millions of women, seniors, the disabled, low-income children, and state employees, and that he favors ideas over people, states' rights over civil rights, and a patchwork of local rules over national standards. He has every right to these views, but when it becomes clear that those are the views that would be expressed by an extremist, then we have to ask ourselves: Are we rubberstamping or are we advising and consenting? Frankly, I believe in this case we would be rubberstamping, not advising and consenting. Mr. Sutton has stated in several articles that states should be the principal bulwark in protecting civil liberties, a claim that has serious implications given a history of state discrimination against individuals. In numerous papers for the Federalist Society, he has repeatedly stated his belief that federalism is a ``zero-sum situation, in which either a State or a federal lawmaking prerogative must fall.'' In his articles, he has stated that the federalism cases are a battle between the states and the federal government, and ``the national government's gain in these types of cases invariably becomes the State's loss, and vice versa.'' He also states that federalism is ``a neutral principle'' that merely determines the allocation of power. This view of federalism is not only inaccurate but troubling. First, these cases are not battles in which one law-making power must fall, but in which both the state and the federal government--and the American people--may all win. Civil rights laws set federal floors or minimum standards but states remain free to enact their own more protective laws. Moreover, federalism is not a neutral principle as Mr. Sutton suggests, but has been used by those critical of the civil rights progress of the last several decades to limit the reach of federal laws. Mr. Sutton tried to disassociate himself from these views, by saying that he does not specifically recall these remarks and that, in the ones he recalls, he was constrained to argue the positions that he argued on behalf of his clients. As far as I know, no one forced Mr. Sutton to write any article, and most lawyers are certainly more careful than to attribute their name to any paper that professes a view with which they strongly disagree. In my view, Mr. Sutton's suggestions that he does not personally believe what he has written are intellectually dishonest, insincere and misleading. In sum, Mr. Sutton's extreme theories would restrict Congress' power to pass civil rights laws and close access to the federal courts for people challenging illegal acts by their state governments (limiting individuals' ability to seek redress for violations of civil rights). If a State government does something wrong, we ought to be able to sue the State government. I remember shortly after the Soviet Union broke up, when a group of parliamentarians and lawyers came here to visit with a number of Senators about how they would set up a judicial system in the former Soviet Union. One asked the question: We have heard that there are cases where somebody may sue the Government, and the Government loses. How could that possibly happen? So we explained the independence of our courts, and we look for justice in the law and so on. He said: You mean you didn't fire the judge if he allowed the Government to lose? I said: Quite the opposite. In fact, the Government often loses. Listening to Mr. Sutton, there are a lot of areas where the Federal courts would be closed to people who challenge illegal acts by their State government. In the name of the concept of sovereign immunity, Mr. Sutton threatens to undermine uniform national laws protecting individuals' rights to welfare, housing, clean air, equality, and a harassment-free environment, and to undermine the core protections and services afforded by Congress to workers, the disabled, the aged, women, and members of religious minorities. This view of federalism undermines the basic principle, announced in Marbury v. Madison, that ``[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.'' The judicial role of enforcing and upholding the Constitution becomes hollow when the government has complete immunity to suit. The burden should be on Mr. Sutton to show that he will protect individual rights and civil rights as a lifetime appointee to the Sixth Circuit Court of Appeals. This he has not done. As I have said on other occasions, when the President sends us a nominee who raises concerns over qualifications or integrity or who displays an inability to treat all parties fairly, I will make my concerns known. This is one of those times. In his selection of Mr. Sutton for the Sixth Circuit, the President and his advisors are attempting to skew its decisions out of step with the mainstream and in favor of States' rights over civil rights, anachronistic ideas over people. The Sixth Circuit is one on which Senate Republicans stalled three nominees of President Clinton during his last four years in office. They closed and locked the gates to this court in 1997. Professor Kent Markus' courageous testimony about that partisan process rings in my ears. Despite those excesses by Senate Republicans, during my chairmanship, the Senate confirmed two new conservative members to the Sixth Circuit. With this nomination, the plan of Republicans to pack this court and tilt it sharply out of balance is evident for all to see. Before and after he took office, President Bush said that he wants to be a uniter and not a divider, and yet he has sent and resubmitted to the Senate several nominees who divide the American people. The Senate has already confirmed 119 of his other judicial nominees. The Committee and the Senate made the judgment that those nominees will fulfill their duties to act fairly and impartially. Most were not divisive or extreme. I urge the President to choose nominees who fit that profile, rather than the alternative he seems intent on imposing for so many circuit court nominees. End the court-packing effort and work with all in the Senate to name consensus, fair-minded federal circuit judges. The oath taken by federal judges affirms their commitment to ``administer justice without respect to persons, and do equal right to the poor and to the rich.'' No one who enters a federal courtroom should have to wonder whether he or she will be fairly heard by the judge. Jeffrey Sutton's record does not show that he will put aside his years of passionate advocacy in favor of states' rights and against civil rights, and his extreme positions favoring severe restrictions on Congress' authority. Accordingly, I will not vote to confirm Mr. Sutton for appointment to one of the highest courts in the land.

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

Mr. LEAHY

Mr. LEAHY. Mr. President, I am disappointed that Senate Republicans continue to focus on the most divisive judicial nominees and the White House continues its efforts to pack the courts ideologically, while the nomination of Judge Edward Prado to the United States Court of Appeals for the Fifth Circuit is being held captive on the Senate calendar. All Democratic Senators serving on the Judiciary Committee voted to report this nomination favorably. All Democratic Senators have indicated that they are eager to proceed to this nomination and, after a reasonable period of debate, voting on the nomination. I am confident this nomination will be confirmed by an extraordinary majority--maybe unanimously. The question arises why the Republican leadership in the Senate has made no effort to proceed to Senate consideration of this judicial nomination--none. In a statement in the Record early this month, I raised this matter. Then at the Judiciary Committee business meeting on April 10, more than two weeks ago, I raised this matter, again. Still, there has been no response and no effort to bring this matter before the Senate for consideration and a vote. The Republican leadership would rather focus exclusively on those controversial circuit court nominees that raise the most problems than proceed to fill vacancies with nominations on which we are able to achieve agreement. That is most unfortunate and most telling. Instead of proceeding to the nomination of Judge Prado, Republicans insisted on pressing forward with the controversial and divisive nomination of Priscilla Owen in early April and with the controversial and divisive nomination of Jeffrey Sutton this week. Judge Prado is nominated to the Fifth Circuit and is an exceptional candidate for elevation to the appeals court. He has significant experience as a public servant in west Texas. Perhaps the fact that he has bipartisan support is the reason why he is not being brought forward at this time for a floor vote. That does not fit the Republican message but reveals the truth: That Democratic Senators, having already acted on 119 judges appointed by President Bush are prepared to support even more of his nominations when they are mainstream, consensus nominees. Perhaps the fact that Democrats unanimously supported his nomination in Committee is seen as a drawback for Mr. Prado in the Republican world of nomination politics. I hope that is not the case. I also hope the fact that Judge Prado is Hispanic is not a factor in the Republican delay. Some have suggested that Judge Prado is being delayed because Democratic Senators are likely to vote for him and thereby undercut the Republican's shameless charge that the opposition to Miguel Estrada is based on his ethnicity. Republican partisans have made lots of partisan hay attacking Democrats in connection with the Estrada nomination. We all know that the White House could have cooperated with the Senate by producing his work papers and the Senate could have proceeded to a vote on the Estrada nomination months ago. The request for his work papers was sent last May. Rather than respond as every other administration has over the last 20 years and provide access to those papers, this White House has stonewalled. Rather than follow the policy of openness outlined by Attorney General Robert Jackson in the 1940's, this administration has stonewalled. And Republican Senators and other partisans could not wait to claim that the impasse created by the White House's change in policy and practice with respect to nominations was somehow attributable to Democrats being anti-Hispanic. The charge would be laughable if it were not so calculated to do political damage and to divide the Hispanic community. That is what Republican partisans hope is the result. That is wrong. So some have come to the conclusion that Republican delay in connection with the consideration of Judge Prado's nomination may be related to the political strategy of the White House to unfairly characterize Democrats. Might the record be set straight if Democrats were seen to be supporting this Hispanic nominee to the Fifth Circuit. Might the Republicans' own record of opposing President Clinton's nominations of Judge Jorge Rangel and Enrique Moreno to that same circuit court be contrasted unfavorably with Democrats' support of Judge Prado. Might Judge Prado, a conservative from Texas with a public record service as a Federal district court judge, become the first Hispanic appointed by President Bush to the circuit courts with widespread support from Senate Democrats. Might this more mainstream, consensus nominee stand in stark contrast to the ideological choices intended to pack the courts on which the White House and Senate Republicans concentrate almost exclusively. Judge Prado has 19 years of experience as a U.S. District Court judge, which provides us with a significant judicial career to evaluate. A review of Judge Prado's actions on the bench demonstrates a solid record of fairness and evenhandedness. While I may not agree with each and every one of his rulings or with every action he has taken as a lawyer or judge, my review of his record leads me to conclude that he will be a fair judge. No supervisor or colleague of Judge Prado's has questioned his ability or willingness to interpret the law fairly. Judge Prado enjoys the full support of the Congressional Hispanic Caucus and the Mexican American Legal Defense and Education Fund. Not a single person or organization has submitted a letter of opposition or raised concerns about Judge Prado. No controversy. No red flags. No basis for concern. No opposition. This explains why his nomination was voted out of the Judiciary Committee with a unanimous, bipartisan vote on an expedited basis. To understand the importance of Judge Prado's nomination, we must put it in the context of prior nominations to the Fifth Circuit Court of Appeals. Until Judge Prado's hearing, it had been more than a decade since a Latino nominee to that Court had even been allowed a hearing by the Senate Judiciary Committee, let alone a vote on the floor. I recall President Clinton's two Hispanic nominations to the Fifth Circuit and the poor treatment they received from the Republican-led Senate. Judge Jorge Rangel was a former Texas State judge and a dedicated attorney in private practice in Corpus Christi, Texas when President Clinton nominated him to the United States Court of Appeals for the Fifth Circuit in 1997. Judge Rangel is a graduate of the University of Houston and the Harvard Law School and earned a rating of ``Well Qualified'' by the American Bar Association. Yet, under Republican leadership, he never received a hearing on his nomination, let alone a vote by the Committee or by the full Senate. His nomination languished without action for 15 months. Despite his treatment, this outstanding gentleman has recently written us in support of a judicial nominee of President Bush. After Judge Rangel, disappointed with his treatment at the hands of the Republican majority, asked the President not to resubmit his nomination, President Clinton nominated Enrique Moreno, a distinguished attorney in private practice in El Paso, Texas. Mr. Moreno is a graduate of Harvard University and the Harvard Law School. He was given the highest rating of unanimously ``Well Qualified'' by the ABA. Mr. Moreno also waited 15 months, but was never allowed a hearing before the Senate Judiciary Committee. President Clinton renominated him at the beginning of 2001, but President Bush, squandering an opportunity for bipartisanship, withdrew the nomination and refused to renominate him. In addition, President Clinton nominated H. Alston Johnson to the 5th Circuit in 1999. This talented Louisianan came to the Senate with the support of both of his home state Senators, but he never received a hearing on his nomination or a vote by the Committee or the full Senate in 1999, 2000, or the beginning of 2001. His nomination languished without action for 23 months. In contrast, when I served as Chair of the Judiciary Committee last Congress, we granted Edith Clement a hearing within months of her nomination. At that time there had been no hearings on 5th Circuit nominees since 1994 and no confirmations since 1995. Under Republican leadership, none of President Clinton's nominees to this Court received a hearing during his entire second term of office. Some of my friends on the other side of the aisle have made the outrageous claim that Democratic Senators are anti-Hispanic or anti- Latino. I think it is important to set the record straight. Of the 10 Latino appellate judges currently seated in the Federal courts, eight were appointed by President Clinton. Three other Latino nominees of President Clinton to the appellate courts were blocked by Republicans, as well as several others for the district court. In fact, in contrast to the President's selection of only one Latino circuit court nominee in hist first 2 years in office, three of President Clinton's first 14 judicial nominees were Latino, and he nominated more than 30 Latino nominees to the Federal courts. During President Clinton's tenure, 10 of his more than 30 Latino nominees, including Judge Rangel, Enrique Moreno, and Christine Arguello to the circuit courts, were delayed or blocked from receiving hearings or votes by the Republican leadership. Republicans delayed consideration of Judge Richard Paez for over 1,500 days, and 39 Republicans voted against him. The confirmations of Latina circuit nominees Rosemary Barkett and Sonia Sotomayor were also delayed by Republicans. Judge Barkett was targeted for delay and defeat by Republicans based on claims about her judicial philosophy, but those efforts were not successful. After significant delays, 36 Republicans voted against the confirmation of this nominee who received a ``Well-Qualified'' rating by the ABA. Additionally, Judge Sotomayor, who also received a ``Well- Qualified'' rating and had been appointed to district court by President George H.W. Bush, was targeted by Republicans for delay or defeat when she was nominated to the Second Circuit. She was confirmed, although 29 Republicans voted against her. It is unfortunate how few Latino nominees this President has sent to the Senate. It is reassuring, however, that the Latino nominations that we have received have been acted upon in a expeditious manner. They have overwhelmingly enjoyed bipartisan support. Under the Democratically-led Senate, we swiftly granted hearings for and eventually confirmed Judge Christina Armijo of New Mexico, Judge Phillip Martinez and Randy Crane of Texas, Judge Jose Martinez of Florida, U.S. Magistrate Judge Alia Ludlum, and Judge Jose Linares of New Jersey to the district courts. This year, we also confirmed Judge James Otero of California, and we would have held his confirmation hearing last year if his ABA peer rating had been delivered to us in time for the scheduling of our last hearing. Also on the Senate executive calendar is the nomination of Cecilia Altonaga to be a Federal judge in Florida. We expedited consideration of this nominee at the request of Senator Graham of Florida. She will be the first Cuban American woman to be confirmed to the Federal bench when Republicans choose to proceed to that nomination. Indeed, Democrats in the Senate have worked to expedite fair consideration of every Latino nominee this President has made to the Federal trial courts in addition to the nomination of Judge Prado. Another example, may be the nomination of Consuelo Callahan to the Ninth Circuit Court of Appeals. Unlike the divisive nomination of Carolyn Kuhl to the same court, both home state Senators returned their blue slips and support a hearing for Judge Consuelo Callahan. I hope she receives a hearing in the near future and look forward to learning more about her record as an appellate judge for the State of California. Rather than disregarding time-honored rules and Senate practices, I urge my friends on the other side of the aisle to help us fill more judicial vacancies more quickly by bringing those nominations that have bipartisan support to the front of the line for Committee hearings and floor votes. As I have noted throughout the last two years, the Senate is able to move expeditiously when we have consensus, mainstream nominees to consider. Nationally-respected columnist David Broder made this point in an April 16 column that appeared in the Washington Post. Mr. Broder noted that when he asked Alberto Gonzales if there might be a lesson in Judge Prado's easy approval, Mr. Gonzales missed the point. In Mr. Broder's mind: ``The lesson seems obvious. Conservatives can be confirmed for the courts when they are well known in their communities and a broad range of their constituents have reason to think them fair- minded.'' To date the Senate has proceeded to confirm 118 of President Bush's nominees, 100 in the 17 months in which Democrats made up the Senate majority. The lesson that less controversial nominees are considered and confirmed more easily was the lesson of the last two years and that lesson has been lost on this White House. Unfortunately, far too many of this President's nominees raise serious concerns about whether they will be fair judges to all parties on all issues. Those types of nominees should not be rushed through the process. I invite the President to nominate more mainstream individuals like Judge Prado. His proven record and bipartisan support makes it easier for us to uphold our constitutional duty of advise and consent. I encourage those on the other side of the aisle to allow us to consider his nomination. I look forward to casting a vote in favor of his confirmation. I, again, urge the Senate Republican leadership to work with us and to agree to proceed to this consensus nomination, to provide adequate time for debate and to proceed to a vote without further delay. Judge Prado's nomination has been delayed on the Senate executive calendar for several weeks, unnecessarily in my view. I recall all too vividly when anonymous Republican holds delayed Senate action on the nomination of Judge Sonia Sotomayor to the Second Circuit for seven months. I do not want to see that experience repeated by Judge Prado. Let us work together. Let us debate and act on the nomination of Judge Prado without further unnecessary delay. I ask unanimous consent that a copy of David Broder's April 16 column on the nomination of Judge Prado be printed in the Record.

Mr. LEAHY. Mr. President, I am concerned that we seem to have these divisive nominees. The Republicans are unwilling to bring forward Judge Edward Prado to the U.S. Court of Appeals for the Fifth Circuit. I mention this because I have checked every single Democrat who is willing to have an extremely short time agreement and go to a vote on Judge Prado. Apparently, it is not being brought forward because of a hold on the Republican side. I mention this because we hear often from the White House: Why are Democrats holding up these court of appeals judges? Well, here is one where every Democrat is willing to vote on the President's nomination to the Fifth Circuit. He is a distinguished Hispanic, Judge Edward Prado. We are ready to vote on him. We have cleared it on this side of the aisle. Apparently, it is being held up on the Republican side. So the next time the White House asks why we cannot move forward with some of these people, let's say: Don't look at us; you may want to ask the other side. It is even interesting that David Broder wrote a column, April 16, on the nomination of Judge Prado to this seat and pointed out that he had come to the hearings to see what kind of divisiveness there was and found a love-in, and he was probably surprised--I don't want to put words in his mouth, but he is probably surprised that it has not been voted on. I will note that Judge Prado has significant experience. I do not agree with him on everything, by any means, but he was originally appointed, I believe, by President Reagan to the district court. He is a conservative Republican, a Hispanic. Every Democrat is prepared to go forward. I ask whoever is holding him up on the Republican side to release the hold, let this man go forward and let him be elevated to the U.S. Court of Appeals. Mr. President, I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am joined by Senator DeWine, by our minority leader, Senator Daschle, and by Senator Smith in introducing legislation that will boost the readiness of our Nation's military Reserve. Never has our Nation relied more heavily on the Selected Reserve-- more than 875,000 men and women, who stand ready for deployments at home or abroad, at a moment's notice. More than 54 percent of the U.S. Army's and 34 percent of the U.S. Air Force's end strength resides in the Selected Reserve. Both the Army and the Marine Corps rely on these Reserve forces for almost 20 percent of their manpower strength. The skill, experience and professionalism of these dedicated citizens often meet and exceed those of their brave counterparts in the active force. It is no wonder that more than 200,000 reservists have been called to duty for service that is related to the war in Iraq. Many States have thousands of their citizens who have temporarily dropped their civilian jobs and left their families for deployments halfway across the globe. More than 300 citizen-soldiers, sailors, airmen, and marines in my home State of Vermont are serving proudly at the moment, here and abroad. When you include the call-ups since the September 11 attacks, the number of activated reservists across the country far exceeds those in the first gulf war. These deployments have spotlighted some specific and solvable problems that have affected the readiness of the reserves and, in turn, our entire military. Some of the troops who have been called up have not been as healthy as possible. Others have faced the stress of leaving their families behind while looking back in concern as their families try to navigate the sometimes arcane military health care system. While often experiencing a loss of income, reserve family members also have had to leave their civilian doctors and join the military's TRICARE program. More troubling, many of the members of the Guard and Reserve who might be activated any day do not currently have access to affordable health insurance. A recent General Accounting Office report underscores the fact that most of these uninsured Guard and Reservists reside in the lower enlisted ranks, where the reserve soldiers, sailors, airmen, and marines oftentimes are unemployed or switch jobs frequently. It is unfair to them and their families, and it is unwise for the preparedness of our military, to expect someone to deploy anywhere at the drop of a hat, but then to disregard whether they will be as healthy as possible when we need to call them to active duty. These men and women are ready to make the ultimate sacrifice for their country, and so are their families. But they are performing as full-time soldiers with part-time benefits. This situation is preventing the National Guard and the Reserve from being as ready as possible for action. At the same time, the stress and strain that activations place on families has hurt recruiting and retention. To ensure the strongest and most effective reserve and the strongest and most effective military capability, it is critical that we address these issues and provide comprehensive health insurance coverage. The National Guard and Reserve Comprehensive Health Benefits Act of 2003 will provide seamless health coverage to our reserve forces at all phases of their service. Under our plan, if one of 876,000 members of the Selected is in a drill status, that reservist and his or her family will become eligible to join the TRICARE military health insurance program. The reservist will pay an annual premium, around 30 percent of the annual cost of providing care. For a single reservist, the premium would be about $420 per year, while for a family the annual payment would be about $1,450. This is not rock-bottom-cheap health care, but our aim is to ensure affordable health insurance for hard-working families that may not otherwise have access to coverage. If a reservist is activated, he or she will continue to have free health care through the military health system. But under our legislation, the reservist's family will be able to avoid the considerable difficulties of switching doctors and health insurance. They also can apply to have their civilian health insurance reimbursed. The program will not cost any more to the Federal Government than the current arrangement because the per capita costs are capped to ensure that they are no more than the cost of TRICARE. And when a reservist comes off active duty, he or she will be able to enter the new premium- based TRICARE program, just as before deployment. Because reservists will be able to have access to affordable insurance whatever their deployment status, this legislation is being supported by several leading organizations, including the National Guard Association of the United States, NGAUS, the Enlisted National Guard Association of the United States, EANGUS, the Reserve Officers Association, ROA, the Naval Reserve Association, NRA, the National Military Family Association, NMFA, Marine Corps Reserve Officers Association, the National Association for Uniformed Services, the National Military/Veterans Association, and the Military Officers Association, MOA. This legislation is the top priority of The Military Coalition's Guard/Reserve Committee. We have worked hard to fully understand the existing problems and to construct this efficient and effective solution. I would particularly like to thank former Undersecretary of Defense Fred Pang and former House Armed Services Committee Professional Staff Member Karen Heath for their sage counsel and guidance in developing this legislation. We are part of a strong, bipartisan coalition that will push for enactment of this long-overdue legislation. In the coming weeks we plan to welcome additional cosponsors for this comprehensive bill as we begin the process of moving it without delay through the legislative process and to the President's desk.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I am joined by Senator DeWine, by our minority leader, Senator Daschle, and by Senator Smith in introducing legislation that will boost the readiness of our Nation's military Reserve. Never has our Nation relied more heavily on the Selected Reserve-- more than 875,000 men and women, who stand ready for deployments at home or abroad, at a moment's notice. More than 54 percent of the U.S. Army's and 34 percent of the U.S. Air Force's end strength resides in the Selected Reserve. Both the Army and the Marine Corps rely on these Reserve forces for almost 20 percent of their manpower strength. The skill, experience and professionalism of these dedicated citizens often meet and exceed those of their brave counterparts in the active force. It is no wonder that more than 200,000 reservists have been called to duty for service that is related to the war in Iraq. Many States have thousands of their citizens who have temporarily dropped their civilian jobs and left their families for deployments halfway across the globe. More than 300 citizen-soldiers, sailors, airmen, and marines in my home State of Vermont are serving proudly at the moment, here and abroad. When you include the call-ups since the September 11 attacks, the number of activated reservists across the country far exceeds those in the first gulf war. These deployments have spotlighted some specific and solvable problems that have affected the readiness of the reserves and, in turn, our entire military. Some of the troops who have been called up have not been as healthy as possible. Others have faced the stress of leaving their families behind while looking back in concern as their families try to navigate the sometimes arcane military health care system. While often experiencing a loss of income, reserve family members also have had to leave their civilian doctors and join the military's TRICARE program. More troubling, many of the members of the Guard and Reserve who might be activated any day do not currently have access to affordable health insurance. A recent General Accounting Office report underscores the fact that most of these uninsured Guard and Reservists reside in the lower enlisted ranks, where the reserve soldiers, sailors, airmen, and marines oftentimes are unemployed or switch jobs frequently. It is unfair to them and their families, and it is unwise for the preparedness of our military, to expect someone to deploy anywhere at the drop of a hat, but then to disregard whether they will be as healthy as possible when we need to call them to active duty. These men and women are ready to make the ultimate sacrifice for their country, and so are their families. But they are performing as full-time soldiers with part-time benefits. This situation is preventing the National Guard and the Reserve from being as ready as possible for action. At the same time, the stress and strain that activations place on families has hurt recruiting and retention. To ensure the strongest and most effective reserve and the strongest and most effective military capability, it is critical that we address these issues and provide comprehensive health insurance coverage. The National Guard and Reserve Comprehensive Health Benefits Act of 2003 will provide seamless health coverage to our reserve forces at all phases of their service. Under our plan, if one of 876,000 members of the Selected is in a drill status, that reservist and his or her family will become eligible to join the TRICARE military health insurance program. The reservist will pay an annual premium, around 30 percent of the annual cost of providing care. For a single reservist, the premium would be about $420 per year, while for a family the annual payment would be about $1,450. This is not rock-bottom-cheap health care, but our aim is to ensure affordable health insurance for hard-working families that may not otherwise have access to coverage. If a reservist is activated, he or she will continue to have free health care through the military health system. But under our legislation, the reservist's family will be able to avoid the considerable difficulties of switching doctors and health insurance. They also can apply to have their civilian health insurance reimbursed. The program will not cost any more to the Federal Government than the current arrangement because the per capita costs are capped to ensure that they are no more than the cost of TRICARE. And when a reservist comes off active duty, he or she will be able to enter the new premium- based TRICARE program, just as before deployment. Because reservists will be able to have access to affordable insurance whatever their deployment status, this legislation is being supported by several leading organizations, including the National Guard Association of the United States, NGAUS, the Enlisted National Guard Association of the United States, EANGUS, the Reserve Officers Association, ROA, the Naval Reserve Association, NRA, the National Military Family Association, NMFA, Marine Corps Reserve Officers Association, the National Association for Uniformed Services, the National Military/Veterans Association, and the Military Officers Association, MOA. This legislation is the top priority of The Military Coalition's Guard/Reserve Committee. We have worked hard to fully understand the existing problems and to construct this efficient and effective solution. I would particularly like to thank former Undersecretary of Defense Fred Pang and former House Armed Services Committee Professional Staff Member Karen Heath for their sage counsel and guidance in developing this legislation. We are part of a strong, bipartisan coalition that will push for enactment of this long-overdue legislation. In the coming weeks we plan to welcome additional cosponsors for this comprehensive bill as we begin the process of moving it without delay through the legislative process and to the President's desk.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am somewhat perplexed that we are in this situation. Let me explain why. This is not a question of whether people are for or against those who abuse children. We are all against that, Republicans and Democrats. It is one of those many areas that would unite all of us. Those of us who are parents or grandparents always feel that way. I think of some of the child molesters I prosecuted before I was in the Senate. Invariably, I sought the stiffest sentences possible, and got them, including life sentences. So I do not think any of us has to demonstrate that we are against child molesters. I think the American people know that, of course, we are all against them. That is the way I was when I prosecuted them and the way I am in the legislation I have helped to write. For example, the AMBER alert bill that is before us: When I was chairman of the Senate Judiciary Committee last year, I put that through in record time. We had a hearing. We had a vote in committee. We brought it up for a roll call vote on the floor in about a week. It was a record. We sent it over to the other body. Of course, they sat on it and never passed it. This year, I joined with Senator Hutchison of Texas, Senator Feinstein of California, and Senator Hatch of Utah. The four of us put through AMBER alert again, brought it up, had a rollcall vote on the Senate floor. Every single Senator who was here that day voted for it. We sent it over to the other body, where it languished. This conference report also includes the PROTECT Act, to provide prosecutors with important tools to fight child pornography. That is a Hatch-Leahy act. Twice I came to the floor of the Senate and joined Senator Hatch in urging passage of this measure that we crafted together. I do not need to suggest whether I am for that or not. I helped write it. We have housing for abused children in this legislation. Again, I helped write that bill. I am the lead sponsor. Obviously, I am for that. We had the so-called Reid shoe bomber fix to the criminal law. I am the lead sponsor of that. The National Center for Missing and Exploited Children authorization, I am a lead sponsor of that. The victims' shield, the cyber-tipline, these are things I have sponsored and supported. I have no problem with any one of them. But what happens, and I hate to think this is why the other body has refused to take up our AMBER alert bill twice now, we suddenly have a bill that comes back--actually, as my friend Senator Kennedy pointed out during our only conference meeting in this matter, subject to a point of order with new and controversial provisions added to a once non-controversial and bipartisan bill. It would have been so much better if the other body had simply taken the bill I got out of the committee last year and we passed in the Senate, and having failed to do so, it would have been so helpful had they taken the bill--of Senator Hatch and myself and Senator Kay Bailey Hutchison and Senator Feinstein--and passed it here, this year, and gone with that. The House leaders chose not to pass it. They delayed its passage and tried to use it as a sweetener to add on a number of controversial items. I wonder what would have happened had they simply taken the bill and passed it last year. The President made clear he would sign it after we passed it by such an overwhelming majority. The other body decided not to. I wonder what would have happened had they picked it up and passed it this year after we passed it through the Senate. The President would have signed it. Maybe we would already have a nationwide AMBER alert system today. One wonders how many children might have been saved by such a nationwide AMBER alert plan if the other body had been willing to pass that bill last year or earlier this year when we passed it. So many, Republicans and Democrats alike, came together on parts of this bill with the idea of protecting children. I worry when efforts to protect our children are used as pawns by those who play politics by attaching legislation of a more controversial nature. Of course, the AMBER alert legislation is in there. I was a main sponsor of that last year and this year. Of course, I am happy about that and I will speak further on that later. I cannot imagine a worse nightmare than a family having an abducted child. I remember sitting around the clock with families when I was a prosecutor as we were trying to find their children. I also remember some cases where we found a child and the child was dead. I remember as a young prosecutor, trying to keep my composure in the trials when I prosecuted the people who did that and seeking the maximum sentence. One, especially, I still have nightmares about to this day, a case in Chittenden County. I remember it as though it were yesterday even though it was many years ago. So that is why I worry when we find ourselves in a situation where all of this time-consuming discussion on more controversial matters could have been avoided. We have so much in this legislation, that Republicans and Democrats alike have joined in, so much that our staffs have worked on so hard over the last 2 years. So many things of these measures are helpful and broadly supported by police, Governors, and those who have to deal with abused and neglected children. The unfortunate situation is--whether it is overreaching, whether someone was looking for an opportunity, I do not know--that members of the other body insisted once again on adding controversial measures that have already slowed down this important legislation. These are bills that came out of the House Judiciary Committee and the Senate Judiciary Committee. We, of all people, should be willing to set the standards and make sure we follow the rules. We, of all people, should not add things in controversial provisions that do not belong here. That is what has been done. I can think of things I would have liked to have had included in the conference report--and not controversial matters at that--but unfortunately, even non-controversial requests by the minority were not afforded the same consideration as highly controversial proposals by the majority. I tried to add the Hometown Heroes Survivors Benefit Act of 2003. This legislation would improve the Department of Justice Public Safety Officers Program by allowing families of public safety officers who suffer fatal heart attacks or strokes to qualify for Federal survivor benefits. I have been at the funerals of officers who died of a heart attack after putting their lives on the line to protect their community. Each year hundreds of public safety officers nationwide lose their lives and thousands more are subjected to great physical risks. The benefits can never be the substitute for the loss of a loved one. Families of fallen heroes depend upon us for helping out when their family members make the ultimate sacrifice. I tried to include the Hometown Heroes bill to fix this loophole and assure the survivors of public safety officers who die of heart attacks or strokes, who die within 24 hours of being on the job, are eligible to receive financial assistance. We passed this bill in the House last year. Representative Etheridge, in the other body, and I introduced identical versions of this legislation. The House passed it, but an anonymous Republican hold in the Senate stopped those benefits for the families of fallen police and firefighters. During the conference, I offered this bill as an amendment, hoping to see it become law. Unfortunately, the majority blocked it. My colleagues across the aisle overlook the fact that public safety is dangerous, exhausting, and stressful work. A first responder's chance of suffering a heart attack or stroke greatly increases when he or she puts on heavy equipment and rushes into a burning building to fight a fire or save lives. To not be able to participate in the PSOP program--I wish my friends on the other side of the aisle allowed families, survivors of those who died in the line of duty that way, to be able to at least have the benefits that go to other officers. I think it is unfortunate. I have heard from police officers, I have heard from firefighters. They ask, how can this possibly happen? Is this a partisan issue? I say, I hope it is not. If there is one thing that should unite Republicans and Democrats, it is support for the families of those who die in the line of duty. We could have done that. Unfortunately, Republicans in the House and Republicans in the Senate voted it down. I hope they will reconsider that decision. I would welcome them back to the fold. But also, the families of firefighters and police officers, the first responders, would welcome them back. They face grave disappointment today. They cannot understand why this was not done. They would like to see it back. I call on the Republican leadership to instruct the Members to let this go through. I am glad the conference report did include a provision I introduced in the last Congress to clarify an airplane as a vehicle for the purpose of terrorism and other violent acts. I tried to include this bill in the omnibus appropriations measure, but the Department of Justice blocked it. Then, to my surprise, the same provision appeared in the leaked copy of the Department's new antiterrorism package. This bill is meant to address a discrete problem that surfaced in the prosecution of Richard Reid, a man who tried to blow up an international flight from Paris to Miami. In that case, the court dismissed a charge against Reid over the question whether the airplane he attempted to destroy was a mass transportation vehicle. This makes it very clear that it is. I am glad this clarification was included at my request. There are many things in this conference report that I either helped write or cosponsored that we can all support. The Leahy-Kennedy legislation establishes a transitional housing grant program within the Department of Justice to provide to victims of domestic violence, stalking, and sexual assault, the necessary means to escape the cycle of violence. That is in here. Today, more than 50 percent of homeless individuals are women and children fleeing domestic violence. This will help real women and children, including many in my home State. I commend my colleagues who, after some initial opposition, joined with Senator Kennedy and me on this legislation. I am glad the Protecting Our Children Comes First Act is in this conference report. It is a bipartisan bill I introduced both in this Congress and the last, joined by my friend from Utah as well as Senator DeWine of Ohio and Senators Biden, Shelby, Lincoln, and Harry Reid. Our bill reauthorizes the National Center for Missing and Exploited Children. It needs to be reauthorized. That is in here. We proposed reauthorization through the year 2007, but at least it has been agreed to through the year 2005. We agreed to double the grants. We also authorized the U.S. Secret Service to provide forensic and investigative assistance to the National Center; and we strengthened the Center's Cyber Tipline to provide online users an effective means of reporting Internet-related child sexual exploitation in the distribution of child pornography, online enticement of children for sexual acts, child prostitution, and child pornography. Of course, the Hatch-Leahy PROTECT Act is the centerpiece of this bill. And after all the hard work that Senator Hatch and I completed to craft this bill, introduce it twice, and usher it through the Senate by two unanimous votes, I do not have to tell any one how pleased I am that the House adopted most of our provisions. The key provision from the House bill that is retained is the so-called ``virtual porn'' provision, which I predict will be the subject of much constitutional scrutiny. We will see how the House provision fares before the Supreme Court, I am sure. So there are a number of things that are good in this bill. That is why I am frustrated we have this situation. It is because of overreaching, because of putting controversial measures in that have received little or no consideration in either body and have delayed enactment of the better parts of this bill, that we do not yet have a law passed. I say this really out of sadness. No. 1, we did not have to be here today. The Senate passed both the Amber bill and the PROTECT Act twice, once this year and once in the last Congress, and sent clean bills to the House both times. When these bills came out of committee last year, when I was chairman, the Senate passed them by unanimous votes on the Senate floor. They passed. We sent them to the other body and they let the bills sit there. When Senator Hatch took over as chairman of the committee this year, we passed them out again. Both Senator Hatch and I, as well as Senators Feinstein and Hutchison, were the main sponsors of the Amber bill. Senator Hatch and I were the main sponsors of the PROTECT Act. The Senate passed them out again. Again, they sat over in the other body for months without action. Now we find out why. It appears that the Republican majority in the House was looking for legislation with that kind of universal support and popularity on which to attach controversial measures that might not have support in the Senate. That is unfair. That is unfair to children. That is unfair to those who may be abducted. That is unfair to those of us who spent years trying to protect children. It is unfair to those, myself and others in this body, who were once prosecutors and prosecuted child molesters and abductors. It is unfair to them and to others. I will put more material in the Record. I will go back to this. But I urge my friends on the other side of the aisle to find a way out of this increasing partisanship because it has delayed passage of this important legislation, which has so much in it to protect children. I see my colleagues on the floor. I see the Senator from Alabama who I assume--he is nodding yes--I assume he is looking for the floor, so I will yield the floor.

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

Mr. LEAHY. I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, we can all celebrate the collapse of Saddam Hussein's brutal, corrupt regime. While much remains to be done to rebuild Iraq and reassure the Arab world that the United States is a liberator, not a conqueror, and that we have no intention of imposing our will on the Iraqi people, the demise of such a tyrant should be universally welcomed. As we reflect on the past 3 weeks of war, we should above all pay tribute to the extraordinary courage and professionalism of our Armed Forces. They conducted themselves in ways that should make all of us proud. We should also make note of the vast arsenal of modern weapons which enabled them to prevail. These weapons have devastated Iraqi troops, armor, and military infrastructure. We have seen on television how effective our precision-guided missiles and bombs are, and we can only imagine how many civilian casualties were avoided because of their accuracy. It is partly because we have such increasingly accurate weapons that I want to discuss an issue that concerns me, and that is the use of cluster bombs by our forces in Iraq. Cluster bombs, otherwise known as ``submunitions'' or ``bomblets,'' are strewn by aircraft or artillery over a wide area. They can be as small as a baseball. They are designed to detonate on impact and scatter deadly shrapnel in every direction. However, on average some 2- 20 percent do not explode on impact. Instead, they remain on the surface of the ground, often hidden by sand or vegetation, where they lie in wait for some unsuspecting child, farmer, or other innocent person. They also pose a grave danger to U.S. forces in the area. The United States military dropped millions of cluster bombs on Laos during the Vietnam war. Today, over 30 years later, they continue to maim and kill innocent people. The cost of removing these tiny, lethal weapons is prohibitive for an impoverished country like Laos. The United States Agency for International Development, through the Leahy War Victims Fund, is aiding some of the severely disabled victims of these indiscriminate weapons. More recently, the United States has used cluster bombs in several countries, including Kosovo, Afghanistan, Iraq during the first gulf war, and, according to reports, again in Operation Iraqi Freedom. In the first gulf war, U.S. planes dropped more than 24 million submunitions on Iraq, leaving roughly 1.2 million duds which resulted in over 1,600 Kuwaiti and Iraqi civilian deaths and an additional 2,500 injured following the war. The cost of clearing these duds and other unexploded ordnance was in the hundreds of millions of dollars. In 1995 in Bosnia, U.S. military officers reportedly banned the use of cluster bombs because they were seen to present an unacceptable risk to civilians. However, 3 years later, during the NATO air campaign in Yugoslavia, U.S., British and Dutch military aircraft dropped more than 295,000 submunitions. The U.N. Mine Action Coordination Center estimated that more than 20,000 live bomblets remained after the war, and the International Committee of the Red Cross reported that in the year following the war there were 151 reported casualties due to cluster bombs. The U.S. Air Force has used cluster bombs in Afghanistan, where, predictably, they have caused the deaths of innocent civilians. Additionally, the appearance of the yellow bomblets bore a remarkable similarity to food aid parcels being airdropped. Civilians searching for food instead have found a hidden death. Also, the bright yellow of the bomblets attracted children, who thought it might be a toy. I read recently that this same problem has occurred in Iraq. According to Human Rights Watch, television images and reports from journalists embedded with the U.S. military indicate that U.S. forces are using artillery projectiles and rockets containing large numbers of cluster munitions of a type which, according to a Department of Defense report, have a failure rate of 16 percent. This could result in hundreds or thousands of dangerous duds. In addition, The Washington Post reported on March 29 that U.S. forces fired 18 Army Tactical Missile Systems against suspected air defense sites in support of a helicopter attack by units of the 101st Airborne Division on March 28. The payload of an ATACMS is 300 or 950 submunitions with a reported failure rate of 2 percent. There is also apparently video footage of U.S. Marine artillery units supporting the 3rd Light Armored Reconnaissance Battalion using 155 millimeter artillery firing projectiles at Iraqi positions. A reporter described ``hundreds of grenades'' being fired at the Iraqis. These were apparently a type of submunition which have a 14 percent dud rate. Submunitions that fail to detonate upon impact become de facto landmines. I have long opposed the use of landmines, and while cluster bombs differ from landmines in that the former are designed to explode on impact, I have urged the Department of Defense to only use cluster bombs that contain reliable self-destruct fuses. Modern self-destruct fuses, which cost only $8-10 each, could reduce the number of duds and the number of innocent casualties by more than 97 percent. Yet, the cluster bombs used by U.S. forces in Iraq do not, to my knowledge, include this available technology. Innocent people, whether Iraqis or Americans, should not die on account of a mere ten dollars. I have also urged the Pentagon to adopt rules of engagement to prevent the use of cluster bombs in heavily populated areas. These weapons, which are designed to detonate over a wide area, are not accurate enough to prevent widespread death and injury to noncombatants. I also want to speak about the use of landmines by Iraqi forces. As I mentioned, I oppose the use of landmines--specifically, landmines that do not have a man in the loop. According to Human Rights Watch and press reports, Iraqi soldiers and paramilitaries have strewn antipersonnel mines widely. They even stored mines inside a mosque in a town in northern Iraq, and placed them around the mosque. This is a war crime. Iraq is not among the 132 countries that are party to the 1997 Ottawa Convention that outlaws any use, production, stockpiling or trade in antipersonnel mines. Neither is the United States. However, landmines that do not have a man in the loop which can distinguish between an enemy soldier and an innocent civilian are outmoded, inhumane weapons. They should be universally condemned. Even before this latest conflict, Iraq was a heavily mined country. It is littered with mines from the Iraq-Iran war and from decades of internal fighting. Landmines were used in the first Gulf war by Iraq, as well as by U.S. forces. I am very pleased that U.S. forces apparently have not used landmines in Operation Iraqi Freedom. The fact that even without landmines our soldiers were able to destroy the Iraqi army in a matter of weeks is the latest evidence that landmines without a man in the loop should have no future in U.S. war fighting plans. Landmines continue to take their toll. In the past 3 weeks, a cameraman working for the BBC was killed in Iraq when he stepped on a mine, and at least three U.S. marines have been injured by mines in separate incidents. It is a virtual certainty that innocent people will continue to be maimed and killed by mines in Iraq long after the fighting stops. Saddam Hussein's army had a long history of atrocities against the Iraqi people, as well as against Iraq's neighbors. Its use of landmines is but another example of its utter disregard for innocent life.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that today we will finally pass into law a very important bill designed to protect children. As an original cosponsor of the National AMBER Alert Network Act, S. 121, I have worked with my Senate colleagues to do all that we possibly can to speedily pass it into law. Twice now we rapidly passed our bill through the Senate on unanimous, bipartisan votes--last fall and again in January. Both times House leaders chose not to pass it, instead delaying its assured passage into law by using the bill as a ``sweetener'' for a package of other controversial provisions that the Senate has not previously considered. The Smart family--who credit the AMBER Alert for the safe return of Elizabeth--has repeatedly joined us to urge House leaders to promptly take up and pass our Senate bill. Had House leaders opted to stand up and do what is right from the beginning, we would already have a nationwide AMBER Alert system in place to save our children's lives when they are abducted. We will never know how many children could have been saved by a nationwide AMBER Plan--if the House had simply passed our bill when the Senate did, I daresay the number of children rescued from their abductors and death would be much higher. Efforts to protect our children do not deserve to be used as pawns by groups who play politics by attaching it to more controversial measures. That being said, I am pleased that AMBER Alert legislation is included in the conference report, as it will aid states in their fight against the disturbingly increasing trend of child abductions and their often tragic ends. Our plan will enhance the AMBER Alert system created after the 1996 kidnapping and murder of 9-year-old Amber Hagerman of Arlington, TX. Since 1996, AMBER Alerts have helped rescue 53 children from their abductors nationwide by using broadcasters, law enforcement officials, road signs and a variety of other tools to instantly disseminate information about child abductions. Today 39 States have statewide AMBER Alert plans. Our AMBER Alert legislation included in the conference report will create voluntary standards that would help States determine the criteria for AMBER Alerts and for quickly disseminating official information during AMBER Alerts. A newly appointed coordinator within the Justice Department will oversee the communication network for abducted children, working with states, broadcasters, and law enforcement agencies to set up and supplement AMBER plans and responses. Our plan will give law enforcement agencies a powerful tool, while providing flexibility for states to implement the alert system. States also need financial help to create effective Amber Alert systems, and this conference report creates two Federal grant programs to help States establish AMBER plans. One, administered by the Department of Transportation, will give States assistance creating Statewide notification and communications systems, including message boards and road signs to help in the recovery of abducted children. The other, administered by the Justice Department, will help States create communications plans with law enforcement agencies and the communities they serve. My State of Vermont does not yet have an AMBER Alert system, and law enforcement officials in Vermont have begun laying the groundwork for a system there. They welcome the Federal help our bill will offer to get a system up and running. As a father and grandfather I know that an abducted child is a family's worst nightmare, and one that happens far too often. The families of children taken by strangers need our help, and they will get it with the passage of the AMBER Alert legislation. The conference report we consider today includes another very important piece of legislation this one designed to protect children from being exploited by child pornographers. I should know because I helped to write this bill in the Senate. Indeed, I am the lead cosponsor of the Senate bill, S.151, which we sent over to the House with a vote of 84-0. Ironically, the House and the conference committee have added so many extra controversial provisions to the conference report bill that one of its core elements, and the element that gives the conference report its title--the PROTECT Act--is buried near the end in Title V. Title V is largely the bill that Senator Hatch and I jointly crafted, held hearings on, and moved through the Senate as the PROTECT Act. I would like to discuss both the content and history of the provisions in this title of the conference reported bill. When Senator Hatch and I introduced S. 151 in January, I supported passing a bill that was identical to the measure that we worked so hard to craft in the last Congress. That bill had passed the Judiciary Committee and the Senate unanimously in the 107th Congress. It did not become law last year because, even though the Senate was still meeting, considering and passing legislation, the House of Representatives had adjourned and would not return to take action on this measure, which had passed the Senate unanimously, or to work out our differences. As I said when we introduced the Hatch-Leahy PROTECT Act and again as the Judiciary Committee considered this measure, although this bill is not perfect, it is a good faith effort to provide powerful tools for prosecutors to deal with the problem of child pornography within constitutional limits. We failed to do that in the 1996 Child Pornography Protection Act ("CPPA"), a significant portion of which the Supreme Court struck down last year. We must not make the same mistake again. The last thing we want to do is to create years of legal limbo for our nation's children, after which the courts strike down yet another law as unconstitutional. I also said at our Judiciary Committee markup and again when the Senate passed this bill unanimously that I hoped we could pass the bill in the same form as it unanimously passed in the last Congress. Unfortunately, my colleagues on the other side of the aisle and in the House have jointly decided not to follow this route. Despite this fact, I have continued to work with Senator Hatch to craft the strongest bill possible that will produce convictions that will stick under the Constitution. I was also glad to learn that, after we passed the bill unanimously, the administration ``strongly supported'' the Senate version of the bill. However, the House still chose not to enact the Senate bill, instead adding numerous controversial provisions to it. That is a shame, because it was no easy feat to move a bill fraught with such constitutional difficulties as the PROTECT Act to the point where not a single Senator voted against it. I want to take a moment to speak again about the history of this important bill and the joint effort that it took to get to this point. In May of 2002, I came to the Senate floor and joined Senator Hatch in introducing the PROTECT Act , after the Supreme Court's decision in Ashcroft v. Free Speech Coalition ("Free Speech"). Although there were some others who raised constitutional concerns about specific provisions in that bill, I believed that unlike legislative language proposed by the administration in the last Congress, it was a good faith effort to work within the first amendment. Everyone in the Senate agrees that we should do all we can to protect our children from being victimized by child pornography. That would be an easy debate and vote. The more difficult thing is to write a law that will both do that and will produce convictions that stick. In 1996, when we passed the CPPA many warned us that certain provisions of that Act violated the first amendment. The Supreme Court's decision last year in Free Speech has proven them correct. I believed and continue to believe that we should not sit by and do nothing. It is important that we respond to the Supreme Court's decision. It is just as important, however, that we avoid repeating our past mistakes. Unlike the CPPA, this time we must respond with a law that passes constitutional muster. Our children deserve more than a press conference on this issue. They deserve a law that will last, rather than one that will be stricken from the law books. It is important that we do all we can to end the victimization of real children by child pornographers, but it is also important that we pass a law that will withstand first amendment scrutiny. We need a law with real bite, not one with false teeth. After joining Senator Hatch in introducing the PROTECT Act in the 107th Congress, as Chairman of the Judiciary Committee in the last Congress, I convened a hearing on October 2, 2002 on the legislation. We heard from the Administration, from the National Center for Missing and Exploited Children, NCMEC, and from experts who came and told us that our bill, as introduced, would pass constitutional muster, but the House-passed bill supported by the administration would not. I then placed the Hatch-Leahy PROTECT Act on the Judiciary Committee's calendar for the October 8, 2002, business meeting. I continued to work with Senator Hatch to improve the bill so that it could be quickly enacted. Unfortunately the Judiciary Committee was unable to consider it because of procedural maneuvering by my colleagues that had nothing to do with this important legislation. I still wanted to get this bill done. That is why, for a full week last October, I worked to clear and have the full Senate pass a substitute to the bill that tracked the Hatch-Leahy proposed committee substitute in nearly every area. Indeed, the substitute I offered even adopted parts of the House bill which would help NCMEC work with local and State law enforcement on these cases. Twice, I spoke on the Senate floor imploring that we approve such legislation. As I stated then, every single Democratic Senator cleared that measure. I then urged Republicans to work on their side of the aisle to clear this measure which was substantially similar to the joint Hatch-Leahy substitute so that we could swiftly enact a law that would pass constitutional muster. Unfortunately, they did not. Facing the recess before the mid-term elections, we were stymied again. Even after the last election, during our lameduck session, I continued to work with Senator Hatch to pass this legislation in the Senate. As I had stated I would do prior to the election, I called a meeting of the Judiciary Committee on November 14, 2002. In the last meeting of the Judiciary Committee under my Chairmanship in the 107th Congress, I placed S. 2520, the Hatch-Leahy PROTECT Act, on the agenda yet again. At that meeting the Judiciary Committee amended and approved this legislation. We agreed on a substitute and to improvements in the victim shield provision that I authored. I did not agree with certain of Senator Hatch's committee amendments because I thought that they risked having the bill declared unconstitutional. I nevertheless both called for the committee to approve the bill and voted for the bill in its amended form. That is the legislative process and it was followed for this portion of the bill. We studied and argued the issues. I compromised on some issues, and Senator Hatch compromised on others. Even though the bill was not exactly as either of us would have wished, we both worked fervently to seek its passage. The same day as the bill unanimously passed the Judiciary Committee, I sought to gain the unanimous consent of the full Senate to pass the Hatch-Leahy PROTECT Act as reported, and I worked with Senator Hatch to clear the bill on both sides of the aisle. I am pleased that the Senate did pass the bill by unanimous consent. I want to thank Senator Hatch for all he did to help clear the bill for passage in the 107th Congress. Unfortunately, the House failed to act on this measure last year and the administration decided not to push for passage. If they had, we could have passed a bill, sent it to the President, and had a new law to protect children on the books months ago. Instead, we were forced to repeat the entire process again, and we did it. I am glad to have been able to work hand-in-hand with Senator Hatch on the real ``PROTECT Act''--now Title V of the massive bill we are considering--because, it is a bill that gives prosecutors and investigators the tools they need to combat child pornography. The Hatch-Leahy PROTECT Act strives to be a serious response to a serious problem. Let me outline some of the important provisions in Title 5 that I helped to write and move through the Senate. I was glad that the House retained the Senate version of Section 503 of the bill, which created two new crimes aimed at people who distribute child pornography and those who use such material to entice children to do illegal acts. Each of these new crimes carries a 15-year maximum prison sentence for a first offense and double that term for repeat offenders. First, the bill criminalizes the pandering of child pornography, creating a new crime to respond to the Supreme Court's recent ruling striking down the CPPA's definition of pandering. This provision is narrower than the old pandering definition in at least one way that responds to a specific Court criticism. The new crime only applies to the people who actually pander the child pornography or solicit it, not to all those who possess the material ``downstream,'' and it requires the government to demonstrate that the defendant acted with the specific intent that the material is believed to be child pornography. The bill also contains a directive to the Sentencing Commission which asks it to distinguish between those who pander or distribute such material and those who only ``solicit'' the material. As with narcotics cases, distributors and producers are more culpable than users and should be more harshly punished for maximum deterrent effect. With the many problematic sentencing provisions that were included in the conference report, this provision that I crafted does it the correct way. It points out an important distinction between possessors and distributors but ultimately leaves it to the bipartisan commission to set the guidelines. I would have liked for the pandering provision to be crafted more narrowly so that ``purported'' material was not included and so that all pandering prosecutions would be linked to ``obscenity'' doctrine. That is the way that Senator Hatch and I originally wrote and introduced this provision in the last Congress. Unfortunately, the Senate amendment process has resulted in some expansions to this once non-controversial provision that may subject it to a constitutional challenge. Thus, while it responds to some specific concerns raised by the Supreme Court, there are constitutional issues that the courts will have to seriously consider with respect to this provision. I will discuss these issues later. Second, section 503 creates a new crime that I proposed to take direct aim at one of the chief evils of child pornography: namely, its use by sexual predators to entice minors either to engage in sexual activity or the production of more child pornography. This was one of the compelling arguments made by the government before the Supreme Court in support of the CPPA, but the Court rejected that argument as an insufficient basis to ban the production, distribution or possession of ``virtual'' child pornography. This bill addresses that same harm in a more targeted and narrowly tailored manner. It creates a new felony, which applies to both actual and virtual child pornography, for people who use such material to entice minors to participate in illegal activity. This will provide prosecutors a potent new tool to put away those who prey upon children using such pornography--whether the child pornography is virtual or not. Next, this bill attempts to revamp the existing affirmative defense in child pornography cases both in response to criticisms of the Supreme Court and so that the defense does not erect unfair hurdles to the prosecution of cases involving real children. Responding directly to criticisms of the Court, the new affirmative defense applies equally to those who are charged with possessing child pornography and to those who actually produce it, a change from current law. It also allows, again responding to specific Supreme Court criticisms, for a defense that no actual children were used in the production of the child pornography--i.e. that it was made using computers. The final bill includes the House provision on banning virtual and non-obscene child pornography, a provision that I have counseled against in both bills because it renders the bill weaker against constitutional attack. One addition to the bill that I helped to include is the inclusion of a definition of material as ``graphic'' in nature. Had that definition, which narrowed the field to hard core child pornography, been applied to the entire definition, the measure would have been much stronger against constitutional attack. By also including ``lascivious simulated'' material in the virtual porn definition, however, the conference report risks having the entire provision stricken. At the same time, I was pleased the House agreed to accept the provision I authored that protects prosecutors from unfair surprise in the use of this affirmative defense by requiring that a defendant give advance notice of his intent to assert it, just as defendants are currently required to give if they plan to assert an alibi or insanity defense. As a former prosecutor I suggested this provision because it affects the real way that these important trials are conducted. With the provision, the government will have sufficient notice to marshal the expert testimony that may be needed to rebut this ``virtual porn'' defense in cases where real children were victimized. This improved affirmative defense measure also provides important support for the constitutionality of much of this bill after the Free Speech decision. Even Justice Thomas specifically wrote that it would be a key factor for him. This is one reason for making the defense applicable to all non-obscene, child pornography, as defined in 18 U.S.C. 2256. In the bill's current form, however, the affirmative defense is not available in one of the new proposed classes of virtual child pornography, which would be found at 18 U.S.C. 2256(8)(C). This omission also may render that provision unconstitutional under the first amendment. The bill also provides much needed assistance to prosecutors in rebutting a false ``virtual porn'' defense by removing a restriction on the use of records of performers portrayed in certain sexually explicit conduct that are required to be maintained under 18 U.S.C. 2257, and expanding such records to cover computer images. These records, which will be helpful in proving that the material in question is not ``virtual'' child pornography, may be used in federal child pornography and obscenity prosecutions under this act. The purpose of this provision is to protect real children from exploitation. It is important that prosecutors have access to this information in both child pornography and obscenity prosecutions, since the Supreme Court's recent decision has had the effect of narrowing the child pornography laws, making it more likely that the general obscenity statutes will be important tools in protecting children from exploitation. In addition, the Act raises the penalties for not keeping accurate records, further deterring the exploitation of minors and enhancing the reliability of the records. Next, the Hatch-Leahy bill contains several provisions altering the definition of ``child pornography'' in response to the Free Speech case. One approach would have been simply to add an ``obscenity'' requirement to the child pornography definitions. Outlawing all obscene child pornography--real and virtual; minor and youthful-adult; simulated and real--would clearly pass a constitutional challenge because obscene speech enjoys no protection at all. Under the Miller obscenity test, such material--one, ``appeals to the prurient interest,'' two, is utterly ``offensive'' in any ``community,'' and three, has absolutely no serious ``literary, artistic or scientific value.'' Some new provisions of this bill do take this ``obscenity'' approach, like the new section 1466A, which I crafted with Senator Hatch. Other provisions, however, take a different approach. Specifically, the House virtual porn provision 2256(8) include persons who are ``indistinguishable'' from an actual minor. This adopts language from Justice O'Connor's concurrence in the Free Speech case. The problem with that is that Justice O'Connor was not the deciding vote in the Free Speech case, she was the seventh vote to strike down the law. Thus, while this language is defensible, I predict that this provision will be the center of much constitutional debate. Although I will explain in more detail later, these new definitional provisions risk crossing the constitutional line. Title V, which was already in the unanimously passed Senate bill before the House saw fit to make the bill more controversial, itself contains a variety of other measures designed to increase jail sentences in cases where children are victimized by sexual predators. First, it enhances penalties for repeat offenders of child sex offenses by expanding the predicate crimes which trigger tough, mandatory minimum sentences. Second, the bill requires the U.S. Sentencing Commission to address a disturbing disparity in the current Sentencing Guidelines. The current sentences for a person who actually travels across State lines to have sex with a child are not as high as for child pornography. The commission needs to correct this oversight immediately, so that prosecutors can take these dangerous sexual predators off the street. These are all strong measures designed to protect children and increase prison sentences for child molesters and those who otherwise exploit children but--unlike the ill-considered Feeney and Hatch-Sensenbrenner amendments--they are done the right way within the structure that Congress established under the Sentencing Reform Act of 1984. Also retained from the original Hatch-Leahy PROTECT Act are several provisions designed to protect the children who are victims in these horrible cases. Privacy of the children must be paramount. It is important that they not be victimized yet again in the criminal process. This bill provides for the first time ever a provision that I suggested. It is an explicit shield law that prohibits the name or other non-physical identifying information of the child victim, other than the age or approximate age, from being admitted at any child pornography trial. It is also intended that judges can and will take appropriate steps to ensure that such information as the child's name, address or other identifying information not be publicly disclosed during the pretrial phase of the case or at sentencing. The conference report also retained a Senate provision requiring the judge to instruct the jury, upon request of the government, that no inference should be drawn against the United States because of information inadmissible under the new shield law. The conferees also voted to adopt a provision from the original Hatch-Leahy PROTECT Act that amended certain reporting provisions governing child pornography. Specifically, it allows Federal authorities to report information they receive from NCMEC to State and local police without a court order. In addition, the bill removes the restrictions under the Electronic Communications Privacy Act (ECPA) for reporting the contents of, and information pertaining to, a subscriber of stored electronic communications to NCMEC when a mandatory child porn report is filed with NCMEC pursuant to 42 U.S.C. 13032. While this change may invite rogue Federal, State or local agents to try to circumvent all subpoena and court order requirements under ECPA and allow them to obtain subscriber emails and information by triggering the initial report to NCMEC themselves, it should be well understood that this is not the intention behind this provision. These important safeguards are not being altered in any way, and a deliberate use of the tip line by a government agent to circumvent the well established statutory requirements of these provisions would be a serious violation of the law. Nevertheless, we should still consider further clarification in the future to guard against subverting the safeguards in ECPA from government officials going on ``fishing expeditions'' for stored electronic communications under the rubric of child porn investigations. As I made clear when the Senate bill was introduced and again when it passed the Senate, I continue to express my disappointment in the Department of Justice information sharing regulations related to NCMEC tip line. According to a recent Government Accounting Office (GAO) report, due to outdated turf mentalities, the Attorney General's regulations exclude both the United States Secret Service and the U.S. Postal Inspection Service from direct access to important tip line information. That is totally unacceptable, especially in the post 9-11 world, where the importance of information sharing is greater than ever. How can the Administration justify support of this provision, which allows state and local law enforcement officers such access, when they are simultaneously refusing to allow other federal law enforcement agencies access to the same information? I once more urge the Attorney General to end this unseemly turf battle and to issue regulations allowing both the Secret Service (now in the Department of Homeland Defense) and the Postal Inspection Service, both of whom perform valuable work in investigating these cases, to have access to this important information so that they can better protect our nation's children. Section 506 of the conference report also adopted the Senate provision providing for extraterritorial jurisdiction where a defendant induces a child to engage in sexually explicit conduct outside the United States for the purposes of producing child pornography which they intend to transport to the United States. The provision is crafted to require the defendant to have the intent of actual transport of the material into the United States, unlike the House bill, which criminalized even an intent to make such material ``accessible.'' Under that overly broad wording, any material posted on a foreign web site could be covered, whether or not it was ever intended that the material be downloaded in the United States. Under the bill we consider today, however, proof of a specific intent to send such material to the United States is required. Finally, Section 510 of the bill provides a new private right of action for the victims of child pornography that was part of the Senate bill. This provision has teeth, including injunctive relief and punitive damages that will help to put those who produce child pornography out of business for good. I commend Senator Hatch for his leadership on this provision and his recognition that such punitive damages provisions are important means of deterring misconduct. These provisions are important, practical tools to put child pornographers out of business for good and in jail where they belong. These are provisions that were in the Senate Hatch-Leahy bill and could have already been law had the House not chosen to hold them hostage to try to gain passage of the more controversial elements of the House package. The committee process is there for a reason. It is there because it causes us to work together and improve bills as they go along. The Senate version of the PROTECT Act, much of which is included in the conference reported bill, is a prime example of the merits of that process. I only wish that other portions of this bill had been so considered. Let me explain. As I mentioned previously, the Senate Hatch-Leahy PROTECT Act--most of which is now stuck in at the end of the bill--is a good faith effort to tackle the child pornography problem, and I have supported its passage from the outset. Until our conference, Senator Hatch and I worked closely together to make this bill as strong as possible. In fact, Senator Hatch and I were able to offer a joint amendment in the Judiciary Committee that strengthened the bill further against constitutional attack. Here are some of the improvements that we jointly made to the bill as introduced and which are in the final bill. The Hatch-Leahy committee amendment created a new specific intent requirement in the pandering crime. The provision is now better focused on the true wrongdoers and requires that the government prove beyond a reasonable doubt that the defendant actually intended others to believe that the material in question is obscene child pornography. This is a positive step. The Hatch-Leahy committee amendment narrowed the definition of ``sexually explicit conduct'' for prosecutions of computer created child pornography. Although I continue to have serious reservations about the constitutionality of prosecuting cases involving such ``virtual child pornography'' after the Supreme Court's decision in Free Speech Coalition v. Ashcroft, narrowing the definition of the conduct covered provides another argument that the provision is not as overbroad as the one in the CPPA. I had also proposed a change that contained an even better definition, in order to focus the provision to true ``hard core'' child pornography, and I was glad that this provision--relating to ``graphic'' pornography, was included in the final conference report. The Hatch-Leahy committee amendment refined the definition of virtual child pornography in the provision that Senator Hatch and I worked together to craft last year, which will be a new 18 U.S.C. 1466A. These provisions rely to a large extent on obscenity doctrine, and thus are more rooted in the Constitution than other parts of the bill. I was pleased that the Hatch-Leahy amendments included a definition that the image be ``graphic''--that is, one where the genitalia are actually shown during the sex act--and that the House agreed to adopt this definition for the virtual porn provision as a whole for two reasons. First, because the old law would have required proof of ``actual'' minors in cases with ``virtual'' pictures, I believe that this clarification will remove a potential contradiction from the new law which pornographers could have used to mount a defense. Second, it will provide another argument supporting the law's constitutionality because the new provision is narrowly tailored to cover only the most ``hard core'' child pornography. If only we would have gone the extra step of requiring this level of obscenity for all virtual child pornography, I think the bill would be safe from constitutional challenge, instead of skating along the constitutional edge. The Hatch-Leahy committee amendment also clarified that digital pictures are covered by the PROTECT Act, an important addition in today's world of digital cameras and camcorders. I am glad that the final bill adopted that change. These were important changes, and I was glad to work with Senator Hatch to craft them. It is unfortunate that this bipartisan cooperation did not extend to the controversial provisions that were added to the bill in the House and in the conference. Even Title V of this law--the real PROTECT Act--is not perfect, however, and I would have liked to see some additional improvements to the bill. Let me outline some of them. First, with regard to the tip line, I would have liked to further clarify that law enforcement agents may not and should not ``tickle the tip line'' to avoid the key protections of the Electronic Communications Privacy Act (ECPA). This might have included modifying 42 U.S.C. 13032 to clarify that the initial tip triggering the report may not be generated by the government's investigative agents themselves. A tip line to NCMEC is just that--a way for outsiders to report wrongdoing to NCMEC and the government, not for the government to generate a report to itself without following otherwise required lawful process. It was not the intent of any part of this bill to alter that purpose. Second, regarding the affirmative defense, I would have liked to ensure that there is an affirmative defense for each new category of child pornography and for all cases where a defendant can prove in court that a specific, non-obscene image was made not using any child but only actual, identifiable adults. That will no doubt be a basis for attacking the constitutionality of this law. I specifically made this suggestion in conference negotiations but my Republican colleagues from both the House and the Senate refused to adopt a ``complete'' affirmative defense, instead leaving holes that will surely be raised in constitutional attacks on the bill. As a general matter, it is worth repeating that we could have avoided all these problems were we to take the simple approach of outlawing ``obscene'' child pornography of all types, which we do in one new provision that I suggested and which is the new Section 1466A established in the conference report. That approach would produce a law beyond any possible challenge. This approach is also supported by NCMEC, which we all respect as the true expert in this field. Following is an excerpt from NCMEC's answer to written questions submitted after our hearing, which I will place in the Record in its entirety: Our view is that the vast majority (99-100%) of all child pornography would be found to be obscene by most judges and juries, even under a standard of beyond a reasonable doubt in criminal cases. Even within the reasonable person under community standards model, it is highly unlikely that any community would not find child pornography obscene. . . . In the post Free Speech decision legal climate, the prosecution of child pornography under an obscenity approach is a reasonable strategy and sound policy. Thus, according to NCMEC, the approach that is least likely to raise constitutional questions--using established obscenity law--is also an effective one. In short, the obscenity approach is the most narrowly tailored to prevent child pornography. New section 1466A adopts this obscenity approach, but because that is not the approach that other parts of the PROTECT Act uses, I recognize that it contains provisions about which some may have legitimate constitutional questions. Specifically, in addition to the provisions that I have already discussed, there were two amendments adopted in the Judiciary Committee in the last Congress and one in this Congress to which I objected that are included in the bill as we consider it today. I felt and still feel that these alterations from the original language that Senator Hatch and I introduced needlessly risk a serious constitutional challenge to a bill that provided prosecutors the tools they needed to do their jobs. The bill would be even stronger than it is now were they changed. Let me discuss my opposition to these changes adopted by the Judiciary Committee in this Congress and the last. Although I worked with Senator Hatch to write the new pandering provision in the PROTECT Act, I did not support two of Senator Hatch's amendments extending the provision to cover (1) ``purported'' material, and (2) material not linked to obscenity. Although our bill, unlike the House bill which had a pandering provision with no link to obscenity at all, had at least one provision which covered predominantly unprotected speech, it was needlessly altered in the legislative process and made vulnerable to attack. First, during our markup in the last Congress I objected to an amendment from Senator Hatch to include ``purported'' material in the pandering provision. ``Purported'' material criminalizes speech even when there is no underlying material at all--whether obscene or non- obscene, virtual or real, child or adult. The pandering provision is an important tool for prosecutors to punish true child pornographers who for some technical reason are beyond the reach of the normal child porn distribution or production statutes. It is not meant to federally criminalize talking dirty over the internet or the telephone when the person never possesses any material at all. That is speech, and criminalizing it goes too far. The original pandering provision in S. 2520 as introduced last Congress was quite broad, and some argued that it presented constitutional problems as written, but I thought that prosecutors needed a strong tool, so I supported Senator Hatch on that provision. I was heartened that Professor Schauer of Harvard, a noted first amendment expert, testified at our hearing last year that he thought that the original provision was constitutional, barely. Unfortunately, Professor Schauer has since written to me stating that this new amendment to include ``purported'' material ``would push well over the constitutional edge a provision that is now up against the edge, but probably barely on the constitutional side of it.'' I placed his letter in the Record upon introduction of the bill in this Congress on January 13, 2003. The second amendment to the pandering provision to which I objected expanded it to cover cases not linked in any way to obscenity. It would allow prosecution of anyone who ``presented'' a movie that was intended to cause another person to believe that it included a minor engaging in sexually explicit conduct, whether or not it was obscene and whether or not any real child was involved. Any person or movie theater that presented films like Traffic, Romeo and Juliet, and American Beauty would be guilty of a felony. The very point of these dramatic works is to cause a person to believe that something is true when in fact it is not. These were precisely the overbreadth concerns that led 7 justices of the Supreme Court to strike down parts of the 1996 Act. We do not want to put child porn convictions on hold while we wait another 6 years to see if the law will survive constitutional scrutiny. Because these two changes endanger the entire pandering provision, because they are unwise, and because that section is already strong enough to prosecute those who peddle child pornography, I opposed those expansions of the provision which are in the bill we consider today. At least with those provisions, however, we debated and carefully considered alternatives. As I have said, with respect to other provisions in the bill the process has been fundamentally flawed. Although I joined Senator Hatch in introducing this bill, even when it was introduced last year I expressed concern over certain provisions. One such provision was a new definition of ``identifiable minor.'' When the bill was introduced, I noted that this provision might both confuse the statute unnecessarily and endanger the already upheld ``morphing'' section of the CPPA. I said I was concerned that it could present both overbreadth and vagueness problems in a later constitutional challenge. Unfortunately, this provision remains problematic and susceptible to constitutional challenge. I was even more concerned with the House bill, which included 100 percent virtual child pornography from the start. Unfortunately, as we consider the bill today, we have the House provision designed to cover ``virtual'' child pornography--that is, 100 percent computer generated pictures not involving any real children. The ``identifiable minor'' provision in the current law may be used without any link to obscenity doctrine. Therefore, what potentially saved the original version we introduced in the 107th Congress was that it applied to child porn made with real persons. The provision was designed to cover all sorts of images of real kids that are morphed or altered, but not something entirely made by computer, with no child involved. The provision we now consider, however, dislodges, in my view, that sole constitutional anchor. The new provision could be read to include images that never involved real children at all but were 100 percent computer generated. That was not the original goal of the Senate provision. There are other provisions in this bill that deal with obscene virtual child pornography that I support, such as those in new section 1466A, which are linked to obscenity doctrine. This provision, however, was intended to ease the prosecutor's burden in cases where images of real children were cleverly altered to avoid prosecution. By changing the Senate's identifiable minor provision into the House's virtual porn provision, the conference needlessly endangered its constitutionality. For these reasons, I was glad to work in a bipartisan manner to shore up this provision in conference. Unfortunately, despite our best efforts, I fear we did not do everything possible to strengthen it against constitutional attack. Let me explain. The new ``virtual'' porn provision in section 502 lumps together such truly ``hard core'' sexual activities such as intercourse, bestiality, and S&M with simple lascivious exhibition of the genitals and simulated intercourse where any part of a breast is shown. Equating such disparate types of conduct, however, does not mesh with community standards and is precisely the type of ``one size fits all'' approach that the Supreme Court rejected in the area of virtual pornography in the Free Speech case. The contrast between this broad definition and the tighter definition in new Section 1466A, crafted by Senator Hatch and myself, is striking. Although I was glad that we included the same definition of ``graphic'' conduct found in new section 502 as in Section 1466A, we have also left intact the less focused language that imperils the bill. The provision may be open to overbreadth attacks. I am pleased that the conference addressed the vagueness concern in the new statute 2256(2) as it applies in virtual cases. By removing the requirement of ``actual'' conduct, we corrected the vagueness issue and have prevented clever defendants from seeking to argue that this new provision still requires proof ``actual'' sexual acts involving real children. The Supreme Court made it clear that we can only outlaw child pornography in two situations: No. 1, where it is obscene, or No. 2, where it involves real kids. That is the law as stated by the Supreme Court, whether or not we agree with it. Senator Hatch and I agree that legislation in this area is important. But regardless of our personal views, any law must be within constitutional limits or it does no good at all. Section 502, which would include most ``virtual'' child pornography in the definition of child pornography, in my view, crosses the constitutional line and needlessly risks protracted litigation that could assist child pornographers in escaping punishment. I supported passage of the original PROTECT Act as Senator Hatch and I introduced it and as it passed the Senate unanimously in the last Congress. Even so, I was willing to work with him to further amend the bill in the Judiciary Committee. Some amendments that we considered in committee I supported because they improved the bill. Others went too far. I had hoped the House would simply adopt the unanimously passed Senate bill and we would have already had a law on the books. Unfortunately, the House chose to proceed otherwise. Nevertheless I continued to work side by side with Republicans in conference to work through a variety of controversial and largely unrelated provisions. I wish I could say that my efforts have been reciprocated. One wonders whether everyone is placing the interests of our children first. A media report on this legislation at the end of the last Congress reported the wide consensus that the Hatch-Leahy bill was more likely than the House bill to withstand scrutiny, but quoted a Republican House member as stating: ``Even if it comes back to Congress three times we will have created better legislation.'' To me, that makes no sense. Why not create the ``better legislation'' right now for today's children, instead of inviting more years of litigation and putting at risk any convictions obtained in the interim period before the Supreme Court again reviews the constitutionality of Congress' effort to address this serious problem? That is what the Senate passed version of the PROTECT Act sought to accomplish. As I have explained, I believe that this issue is so important that I have been willing to compromise and to support a measure even though I do not agree with each and every provision that it contains. That is how legislation is normally passed. I am disappointed that the Administration and the House decided to play politics with this issue and add controversial positions that could bog the bill down. There are a few additional measures in the conference report that I want to mention. First, Section 604 of the conference report, which was proposed by Senator Grassley, amends Section 170101(e) of the Violent Crime Control and Law Enforcement Act of 1994. That section would amend several provisions of the sexual registry established under that law. First, it would add additional crimes to those that are included in the registry. Second, it would require that such registries be made available over the Internet. Finally, and quite significantly, this provision would not only require a ``process'' be established for contesting the accuracy of any information on the registry, but would also require that the instructions for following that process be readily available on the Internet. For the first time, then, we are explicitly requiring that there is a mechanism for those who believe that information has been erroneously posted on the registry to challenge that information and seek to have it removed. Second, I want to thank the conferees for supporting measures included in the Protecting Our Children First Act, S. 773, a bipartisan bill that I introduced in both this Congress and the last, joined by Senators Hatch, Kennedy, DeWine, Biden, Shelby, Lincoln, and Reid, to reauthorize the National Center for Missing and Exploited Children. As the nation's top resource center for child protection, NCMEC spearheads national efforts to locate and recover missing children and raises public awareness about ways to prevent child abduction, molestation, and sexual exploitation. NCMEC works to make our children safer by being a national voice and advocate for those too young to vote or speak up for their own rights. We had proposed reauthorization through 2007 but have at least achieved agreement to extend its activities through 2005. We were able to double the grants from $10 million to $20 million a year so that the National Center can help more children and families. We also authorize the U.S. Secret Service to provide forensic and investigative assistance to the National Center, and we strengthen NCMEC's Cyber Tipline to provide online users an effective means of reporting Internet-related child sexual exploitation in distribution of child pornography, online enticement of children for sexual acts, and child prostitution. Third, I am pleased that conferees agreed to include in the conference report Leahy-Kennedy-Biden legislation that will establish a transitional housing grant program within the Department of Justice to provide to victims of domestic violence, stalking, or sexual assault the necessary means to escape the cycle of violence. Today, more than 50 percent of homeless individuals are women and children fleeing domestic violence. They are homeless because, in their desperate attempt to leave their abusers, they find themselves with few, if any, funds to support themselves. Shelters offer a short-term solution, but are often overcrowded and unable to provide all of the support that is needed. Transitional housing allows women to bridge the gap between escaping from a domestic violence situation and becoming fully self-sufficient. Such assistance is limited, however, because no federal funds exist for transitional housing programs geared specifically to victims of domestic violence. We last authorized such a transitional housing grant program as part of the reauthorization of the Violence Against Women Act in 2000. This program would have been administered through the Department of Health and Human Services and would have provided $25 million in fiscal year 2001. Unfortunately, funds were never appropriated for the program, and the authorization expired. If we truly seek an end to domestic violence, then transitional housing must be available to all those fleeing their abusers. First of all, such housing provides women and children a stable, sustainable home base. Second, it gives these victims opportunity to participate in educational programs, to work full-time jobs, to learn new job skills, and to search for adequate child care in order to gain self- sufficiency. Without such resources, many women and children eventually return to situations where they are abused or even killed. This conference report amends the Violence Against Women Act of 1994 to authorize $30 million for each of fiscal years 2004-2008 for the Attorney General to award grants to organizations, States, units of local government, and Indian tribes to help victims of domestic violence, stalking, or sexual assault who need transitional housing or related assistance as a result of fleeing their abusers, and for whom emergency shelter services or other crisis intervention services are unavailable or insufficient. Funds may be used for programs that provide short-term housing assistance, including rental or utilities payments assistance and assistance with related expenses. The funds may also support services designed to help individuals locate and secure permanent housing. Lastly, these resources may be used to help integrate domestic violence victims into the community by providing services, such as transportation, counseling, child care services, case management, employment counseling, and other assistance. This new grant program will make a significant impact in many areas of the country, such as my State of Vermont, where the availability of affordable housing is at an all-time low. There are many dedicated people working to provide victims of domestic violence with resources, but they can not work alone. We must provide women and children who have endured domestic violence with a safe place to gain the skills and stability needed to make the transition to independence. I thank the conferees for adding this language to the conference report and recognizing that this is an important component of reducing and preventing crimes that take place in domestic situations. Together, we can help the victims of these crimes to move on with their lives. Fourth, I am pleased that the conference report includes a provision that I introduced in the last Congress to clarify that an airplane is a vehicle for purposes of terrorist and other violent acts against mass transportation systems. A significant question about this point was raised in an important criminal case and deserves our prompt attention. On June 11, 2002, a U.S. District Judge in Boston dismissed one of the nine charges against Richard Reid stemming from his alleged attempt to detonate an explosive device in his shoe while onboard an international flight from Paris to Miami on December 22, 2001. The dismissed count charged defendant Reid with violating section 1993 of title 18, United States Code, by attempting to ``wreck, set fire to, and disable a mass transportation vehicle.'' Section 1993 is a new criminal law that was added, as section 801, to the USA PATRIOT Act to punish terrorist attacks and other acts of violence against, inter alia, a ``mass transportation'' vehicle or ferry, or against a passenger or employee of a mass transportation provider. I had urged that this provision be included in the final anti-terrorism law considered by the Congress. A similar provision was originally part of S. 2783, the ``21st Century Law Enforcement and Public Safety Act,'' that I introduced in the 106th Congress at the request of the Clinton Administration. The district court rejected defendant Reid's arguments to dismiss the section 1993 charge on grounds that one, the penalty provision does not apply to an ``attempt'' and two, an airplane is not engaged in ``mass transportation.'' ``Mass transportation'' is defined in section 1993 by reference to the ``the meaning given to that term in section 5302(a)(7) of title 49, U.S.C., except that the term shall include schoolbus, charter and sightseeing transportation.'' Section 5302(a)(7), in turn, provides the following definition: ``mass transportation'' means transportation by a conveyance that provides regular and continuing general or special transportation to the public, but does not include school bus, charter or sightseeing transportation.'' The court explained that ``commercial aircraft transport large numbers of people every day'' and that the definition of ``mass transportation'' ``when read in an ordinary or natural way, encompasses aircraft of the kind at issue here.'' U.S. v. Reid, CR No. 02-10013, at p. 10, 12 (D. MA, June 11, 2002). Defendant Reid also argued that the section 1993 charge should be dismissed because an airplane is not a ``vehicle.'' The court agreed, citing the fact that the term ``vehicle'' is not defined in section 1993 and that the Dictionary Act, 1 U.S.C. Sec. 4, narrowly defines ``vehicle'' to include ``every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land.'' Emphasis in original opinion. Notwithstanding common parlance and other court decisions that have interpreted this Dictionary Act definition to encompass aircraft, the district court relied on the narrow definition to conclude that an aircraft is not a ``vehicle'' within the meaning of section 1993. The new section 1993 was intended to provide broad Federal criminal jurisdiction over terrorist and violent acts against all mass transportation systems, including bus services, airplanes, railroads and other forms of transportation available for public carriage. The more inclusive definition would also cover cruise ships. Unfortunately terrorist attacks against Americans is not a new threat. In 1985, four terrorists brutally attacked the Achille Lauro Cruise Ship. The wheelchair-bound Leon Klinghoffer, a stroke victim, was shot once in the head and once in the back by the terrorists who then pushed him over the side of the ship into the Mediterranean. Section 609 of the conference report adds a definition of ``vehicle'' to 18 USC 1993 and clarifies the breadth of the meaning of this term both in common parlance and under this new criminal law to protect mass transportation systems. Specifically, it defines this term to mean ``any carriage or other contrivance used, or capable of being used, as a means of transportation on land, water or through the air.'' Having reviewed all the positive elements of the conference report, I want to speak to the conference process itself. I am deeply disappointed by the process that characterized Tuesday's AMBER Alert and PROTECT Act conference. By taking bipartisan, noncontroversial bills and adding numerous controversial, unrelated measures, the Republicans have decided yet again to play games with important measures to protect our children. They are rolling the dice with the safety of America's children. I do not say this lightly, and I say it with a heavy heart, but House and Senate Republicans are now holding the passage of AMBER and the PROTECT Act hostage to these very troubling additions. With respect to new matters never considered by this body, the conference committee in this matter tried no less a feat than to rewrite the criminal code on the back of an envelope. That type of effort is unwise and doomed to failure. There are many things in this bill that I support--indeed as a former prosecutor I brought my personal experiences to bear and I wrote much of it. That is why even after the House Republicans loaded the bill with numerous controversial, unrelated provisions, I worked in good faith to come to agreement on many provisions. In fact, staff members of the conferees met all through the weekend and late into the early hours of Tuesday morning to find common ground. It is unfortunate that our good faith was repaid with attempts to add even more extraneous controversial provisions at the conference meeting. Tuesday's conference, which was convened in the spirit of bipartisan cooperation, turned political, however, when Republicans sprung a lengthy and complex amendment on the Democrats. This 9-page document was not a simple substitute for a portion of the bill. It was a highly complex amendment requiring careful consideration. The sponsors denied a request to break briefly in order to give conferees a moment to analyze the document. After meeting for three days in good faith, the Democratic conferees were effectively slapped in the face with a totally new proposal. Then, to add insult to injury, the sponsors of the amendment misrepresented its contents in the conference meeting and quickly forced a vote before the conferees had a chance to review or debate the amendment. I was sorely disappointed by the way that this amendment was explained to the conferees. One sponsor said not once or twice, but three separate times: ``It's important to note that the compromise is limited to these serious crimes against children and sex crimes and does not broadly apply to other crimes.'' In fact, the amendment was not limited as he described, and did apply broadly to downward departures in sentencing for all Federal crimes. After the conferees were forced to vote on the Hatch-Sensenbrenner amendment, Senator Hatch's office, at 2:00 a.m., substantially changed the text of his own amendment--the amendment that had already been voted upon in open conference. With no new meeting and no new vote of the conferees, the Republicans changed the conference report as it was voted on, and filed it in the House. The 2:00 a.m. text came closer to reflecting the original description of the amendment, but was still not limited, as was promised, to crimes against children. The substance of the Hatch-Sensenbrenner amendment--whether in the form that was voted on in conference, or in the form that was circulated after the conference adjourned--is just as outrageous as the way in which it was adopted. This amendment modifies in very limited ways the Feeney amendment, which was added to the bill on the House floor after only 20 minutes of debate. This far-reaching proposal will undermine the Federal sentencing system and prevent judges from imposing just and responsible sentences. In short, it amounts to an attack on the Federal judiciary. Speaking about the original Feeney amendment, Chief Justice Rehnquist wrote: ``this legislation, if enacted, would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and responsible sentences.'' In another bald mischaracterization of the Hatch- Sensenbrenner amendment, Senator Hatch claimed in the conference meeting that he had addressed the Chief Justice's concerns. He said, ``Chief Justice Rehnquist is worried about the breadth and scope of the Feeney Amendment. He's not worried about this [language]. I don't think any federal judge would worry about this language. They know this language is to protect our children in our society, and we're limiting it to that.'' In fact, the Hatch-Sensenbrenner amendment does not address the problems raised in Chief Justice Rehnquist's letter, which were directed at the assault on the sentencing structure that is retained in the amendment. In addition to the Chief Justice of the United States, this is an issue on which we have heard from the Judicial Conference, other distinguished judges, the Sentencing Commission, the former chairmen of the Sentencing Commission, the American Bar Association, the Washington Legal Foundation, the Leadership Conference on Civil Rights, the Cato Institute, the National Petroleum Refiners Association and a number of other business associations, all of which opposed the House language. Just this week, Justice Kennedy voiced grave concerns over the excessive application of mandatory minimum sentences. He said, ``When the guilt determination phase and the sentencing is over,'' Kennedy said, ``the legal system loses all interest in the prisoner. And this must change. Winston Churchill said a society is measured by how it treats the least deserving of its people. And two million people in prison in this country is just unacceptable.'' A number of the groups opposed to the original proposal have expressed continued opposition. Others have not had time to write about the new version because this proposal is being rushed through the legislative process. The language that was adopted in the conference report establishes new and separate departure procedures for child-related and sex offenses. So, we will have one set of sentencing rules for pornographers and a more flexible set of sentencing rules for other Federal defendants, including terrorists, murderers, mobsters, civil rights violators, and white collar criminals. No one here believes that sex offenders deserve anything less than harsh sentences, but I cannot understand why we would treat the terrorists better. The conference report also overturns a unanimous Supreme Court decision, Koon v. United States, by establishing a new standard of appellate review in all departure cases. This provision, like so many others, is not limited to cases involving children. The Court in Koon interpreted the departure standard in a way that limited departures but left some room for judicial discretion. By contrast, the new provision would appear to require appellate courts to consider the merits of a departure before it can decide what standard of review to apply to the merits. That is because, in order to determine which standard of review applies--``due deference'' or ``de novo''--the appellate court must first decide whether the departure advances the objectives of 18 USC 3553(a)(2) (incapacitation, deterrence, etc.) or is authorized under 18 USC 3553(b) (a mitigating circumstance of a kind, or to a degree, not adequately considered by the Sentencing Commission) or is justified by the facts of the case. This sloppily drafted, circular provision is likely to tie up the courts in endless litigation, draining already scarce judicial resources, and costing the taxpayers money. The Republican supporters of this amendment seem to believe that our Federal judges cannot be trusted. I have always advocated doing a thorough review of our Federal judge nominees when they come before the Senate for lifetime appointments. Perhaps that is the difference between my view of Federal judges and those of my colleagues across the aisle who seem to believe they should rubber stamp the President's nominees to these lifetime positions. I believe we should pick our Federal judges carefully and them trust them once appointed, not rubber-stamp them and then feign disbelief when we are unhappy with their decisions. The amendment effectively creates a judicial ``black list'' of judges that stray from the draconian mandates of this bill. The Hatch- Sensenbrenner language retains the Feeney amendment's attempt to intimidate Federal judges by compiling a ``hit list'' of all judges who impose sentences that the Justice Department does not like in any type of criminal case. It takes a sledge hammer to the concept of separation of powers. In a further demonstration of hostility to our Federal judiciary as envisioned by our constitution, the Hatch-Sensenbrenner amendment removes almost all discretion for Federal judges to depart from the sentencing guidelines in some extraordinary cases. At the conference's one meeting, during the brief period afforded for debate on the Hatch-Sensenbrenner amendment, I pointed out that the amendment retained language from the original Feeney amendment that eliminated the ability of Federal judges to depart and give lower sentences based upon extraordinary military service. The sponsors of the amendment dismissed my concern. They said that I was wrong--that their amendment did not eliminate the departure for extraordinary military service. They were both quite certain on this point, even after I raised it a second time. One sponsor said, ``I don't know where you're getting your language from.'' Another assured us that ``this nine-page amendment has been very well drafted . . . It does exactly what we have said.'' After the conference had adjourned and they took the time to familiarize themselves with their own amendment, they discovered that I was correct. They were, in fact, eliminating the departure for extraordinary military service in all Federal criminal cases--for congressional medal of honor winners, for example, and veterans who had been seriously wounded while defending their nation in battle. What is worse, they were doing this during a time of war, when future veterans are literally risking their lives for America. Realizing that this might not go down well on the floor of the United States Senate, they quietly dropped the provision from the final conference report. I have discussed this issue at some length not to embarrass any member or his staff, but to make the point that Congress should spend more than a few minutes considering legislation with such far-reaching consequences. The conference report blithely overturns the basic structure of the carefully crafted guidelines system without any serious process in either the House or the Senate, and without any meaningful input from judges and practitioners. With respect to the few parts of the Hatch-Sensenbrenner amendment that are limited to crimes against children, it may not be the end of the guidelines system, but it is very likely the beginning of the end. Once we prohibit judges from exercising discretion in one set of cases, we will have established a prototype for future attacks on the guidelines system--a form of ``mission creep'' in this uncompromising, anti-judge agenda. The same ``tough on crime'' political posturing that fuels the relentless drive for more mandatory minimums and death penalties will lead to future expansions of the Hatch-Sensenbrenner amendment to crimes having nothing to do with minors. My Republican colleagues on the conference claim that there is a crisis on the Federal bench of downward departures in sentencing. In fact, downward departure rates are well below the range contemplated by Congress when it authorized the Sentencing Guidelines, except for departures requested by the government. The overwhelming majority of downward departures are requested by Federal prosecutors to reward cooperation by defendants or to manage the high volume of immigration cases in certain border districts. When the government does not like a specific downward departure, it can appeal that decision, and it often wins--approximately 80 percent of such appeals are successful. This amendment is a solution in search of a problem. Rather than rush to change the law with no factual basis for doing so, the Democrats in this conference asked for hearings on the topic. In fact, Senator Graham, the new chairman of the newly constituted Crime, Corrections and Victims' Rights Subcommittee indicated that he planned to hold hearings on this topic very soon--that is, until the Feeney amendment and the subsequent Hatch-Sesenbrenner amendment overtook events. The Republican conferees now claim that no study is necessary. They believe that no hearings are necessary. They would rather significantly increase incarceration rates at taxpayer expense than take the time to determine whether such severe changes are necessary or appropriate. The Hatch-Sensenbrenner amendment not only maintains the worst aspects of the controversial Feeney Amendment--provisions that have nothing to do with child protection--but also adds in new provisions that were not in the original Feeney amendment. For example, it limits the number of Federal judges who can serve on the Sentencing Commission because, as Chairman Sensenbrenner explained, ``we don't want to have the Commission packed with Federal judges that have a genetic predisposition to hate any kind of sentencing guidelines.'' I, for one, believe that judges are extremely valuable members of the Commission. They bring years of highly relevant experience, not to mention reasoned judgment, to the table. The Republicans apparently believe that their knowledge is of limited value. I find it ironic that the Republicans, in forcing through this measure, will undercut one of the signature achievements of Ronald Reagan's Presidency--a firm, tough, fair system of sentencing in the Federal criminal justice system. The Sentencing Reform Act of 1984 struck a balance between uniformity and judicial discretion and was enacted after years of study and consideration of the problems in the previous sentencing system. Congress understood that a guidelines system that encompasses every relevant sentencing factor is neither possible nor desirable. Departures, both upward and downward, are an integral and healthy part of the guideline system. They do not reflect an avoidance of the law by Federal judges but rather their conscientious compliance with the congressional mandate to impose a guideline sentence unless the court finds a circumstance not adequately considered by the Commission that warrants a departure. Moving beyond the sentencing amendments offered at the conference, there are several provisions of the conference report that are equally problematic. Section 106 of the conference report, entitled ``two strikes and you're out,'' is one of the many controversial provisions in the House- passed bill that have never been considered in the Senate. It mandates life imprisonment without parole for defendants who have twice been convicted of certain crimes against children. Another section of the conference report creates several new mandatory minimum sentences, and raises some existing ones, for crimes involving child pornography and prostitution. We can all agree that those who commit crimes against children should be severely punished. In fact, the bill that Senator Hatch and I authored--the real PROTECT Act, which is buried in title V of the conference report--contains a number of very strong sentencing provisions. But I believe we can accomplish our common goal of ensuring that those who prey on children receive tough punishment without further expanding the mandatory sentencing scheme that is gradually replacing the guidelines system. The arguments against mandatory minimums are well known. The Chief Justice of the United States has observed that mandatory minimum sentences ``frustrate the careful calibration of sentences, from one end of the spectrum to the other, which the Sentencing Guidelines were intended to accomplish.'' Another conservative member of the Court, Justice Kennedy, testified before a House subcommittee in 1994 that mandatory minimums were ``imprudent, unwise, and often an unjust mechanism for sentencing.'' As I mentioned previously, Justice Kennedy reiterated that thought just this week, before another House committee. Justice Breyer, who served on the original Sentencing Commission, has written that mandatory minimums prevent the Commission from developing a rational, coherent, and fair set of punishments. Most judges in the Federal system, Republicans and Democrats alike, agree with these criticisms. Senator Hatch has also expressed reservations about statutory mandatory sentences. In a 1993 law review article, Senator Hatch observed that mandatory minimums are fundamentally inconsistent with the guidelines system. He wrote: Whereas the guidelines permit a degree of individualization in determining the appropriate sentence, mandatory minimums employ a relatively narrow approach under which the same sentence may be mandated for widely divergent cases. Whereas the guidelines provide for graduated increases in sentence severity for additional wrongdoing or for prior convictions, mandatory minimums often result in sharp variations in sentences based on what are often only minimal differences in criminal conduct or prior record. Finally, whereas the guidelines incorporate a ``real offense'' approach to sentencing, mandatory minimums are basically a ``charge- specific'' approach wherein the sentence is triggered only if the prosecutor chooses to charge the defendant with a certain offense or to allege certain facts. Senator Hatch concluded that Congress should make greater use of the various alternative sentencing methods proposed by the Commission, including increased statutory maximums. I am disappointed that Congress is poised, once again, to demonstrate that we are ``tough on crime'' by enacting new mandatory minimum sentences. That being said, I am pleased that the conference accepted my proposals to modify the two strikes provision to eliminate its harshest and most disproportionate applications. Among other things, the conference clarified that the ``two strikes'' law would not apply to a defendant whose only prior sex conviction was a misdemeanor under state law. The conference also provided a limited affirmative defense for defendants convicted under certain Federal statutes that have less culpable applications. Congress provided a similar defense in the three strikes law, and it is appropriate that we included one here as well. We should also have included in the two strikes provision a carve-out for Indian country. Unfortunately, the conference refused in a party line vote to allow Indian nations to decide for themselves whether or not to be part of the new two strikes regime. There is no question that the two strikes law will disproportionately affect Indian country. Sentencing Commission data indicates that approximately 75 percent of cases to which the two strikes provision will be applied will involve Native Americans on reservations. Thus, the two strikes provision will have the effect of singling out Native Americans for harsher treatment. Congress has confronted this problem before, when passing various criminal laws with particularly harsh sentences. In those situations, we have allowed the tribes to decide whether they want to be covered. The amendment that I offered, and that the Republican conferees rejected, was identical to provisions for Indian Country in current criminal statutes such as the ``three strikes'' law, the juvenile delinquency statute, and the Federal death penalty statute. These provisions preserve the sovereignty of the Indian tribes by providing their governing bodies with authority to control the laws affecting their land and people. For Congress to treat the ``two strikes'' provision differently is simply wrong. Another provision of the conference report dealing with statutes of limitations raises concerns about the message we are sending to law enforcement. Section 202 extends the statute of limitations for certain crimes against children. This provision is substantially narrower than the version passed by the House, which covered a laundry list of crimes having nothing at all to do with children. The purpose of section 202 is to address the problem--highlighted in several recent cases--of child victims who fail to notify authorities that they have been victimized until years and even decades after the event. Current law deals with this problem by allowing prosecution of certain offenses involving the abuse of a child until the child turns 25. Section 202 goes further, extending the limitations period for the entire life of the child. During the conference, I expressed concern that section 202's lifetime extension of the limitations period would reduce law enforcement's incentive to move quickly and aggressively to solve these very serious crimes. I therefore proposed a modification along the lines that Congress adopted last year in the context of corporate fraud. More specifically, I proposed that a 3 or 5 year limitations period should exist, and start to run, once the facts constituting the offense were known, or reasonably should have been known, by Federal law enforcement authorities. This modification would have benefitted victims by requiring authorities to focus on their case, and to take immediate steps to bring the perpetrator to justice, as soon as the crime was brought to their attention. Senate Republicans fought for similar language in the Sarbanes-Oxley bill. Their opposition to it outside the context of corporate crime suggests a troubling double standard. A final point on section 202: I am pleased that the conference agreed to drop language from the original House-passed bill that would have extended the limitations period retroactively. That language, which would have revived the government's authority to prosecute crimes that were previously time-barred, is of doubtful constitutionality. We are already pushing the constitutional envelope with respect to several of the ``virtual porn'' provisions in this bill. I am pleased that we are not doing so in section 202 as well. The next section of the conference report is another example of hastily drafted language that has not been vetted thoroughly by either house of Congress. Section 203 adds certain crimes against children to the list of offenses that carry a rebuttable presumption against pre- trial release. Like the other provisions in titles I and II, this section has never been considered by the Senate, and received only the most cursory consideration by the House. I have two problems with this provision. First, as with sentencing determinations, I believe that judges, not Congress, should determine who gets bail. Clearly, judges are in the better position to determine whether, for public safety reasons, an accused offender should be detained. Second, I am concerned that the complete absence of legislative findings supporting the new presumption could imperil its constitutionality under the Excessive Bail Clause. At a minimum, it could give defendants a good argument that the presumption should be overcome more easily than the authors of this provision perhaps intended. That is what happens when we do not take the time to do things the right way. For the same reason, I am troubled by section 521 of the conference report, which makes it a crime to use a ``misleading'' domain name with the intent to deceive a person into viewing obscenity on the Internet, or with the intent to deceive a minor into viewing ``material that is harmful to minors'' on the Internet. This provision is similar to section 108 of the House-passed bill, which was added as a floor amendment with no prior consideration in either body. I have serious doubts about whether section 521 will survive constitutional challenge. For one thing, its failure to define the term ``misleading'' may unduly chill constitutionally-protected speech. For example, it is unclear whether a website like ``northernlights.com'' would be considered ``misleading'' if it contains images of naked persons that are deemed harmful to minors. Section 521 does create a ``safe harbor'' for those who include the word ``porn'' or ``sex'' in their Internet domain name. This form of mandatory labeling of the site of a mainstream business, which includes material constitutionally protected as to adults, but which may be deemed inappropriate for some level of minors, also raises constitutional concerns. In addition, labeling domain names in this manner could turn sites into attractive nuisances, drawing more childrens' eyes to the site and thus having the opposite of its intended effect. My uncertainty about the constitutionality of this provision is, of course, compounded by the fact that there is virtually no legislative record on it. It has never been introduced in the Senate, and received a grand total of 10 minutes of debate before being passed as a floor amendment in the House. And in case any judge is reading this and wondering, there was no discussion of this provision during the one afternoon that the conference committee actually met. In recent years, Congress's efforts to regulate protected speech on the Internet have not fared well in the Supreme Court, which takes its responsibility to uphold the first amendment a bit more seriously than some of my Republican colleagues. It would not surprise me if the Court was especially dismissive of this current effort. I am also concerned about the inclusion of the Illicit Drug Anti- Proliferation Act in this conference report. This bill has drawn serious grass-roots opposition, and I know that I am not alone in hearing from many constituents about their serious and well-considered objections to it. Despite this opposition, and even though the Senate has never held a hearing on this bill, the conference committee agreed to include it in this hastily-assembled package. I know that Senator Biden has made changes to the bill since the last Congress, beginning with its title, and I appreciate his flexibility. But these changes do not address some of the questions that have been raised about this legislation. The bill's primary purpose is to expand the existing ``crack house statute,'' (21 USC 856) which makes it unlawful to knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance, or to make a place available to someone else for use for such purposes or for storing a controlled substance. The bill would expand the statute to include those who lease, rent, or use property, including temporary occupants, and would allow for civil suits against violators. The crack house statute has been on the books for more than 15 years, and for most of its existence, Federal prosecutors have used it solely against property owners who have been directly involved in committing drug offenses. The House Judiciary Committee, however, heard evidence last year that the Drug Enforcement Administration and prosecutors are now using the ``crack house statute'' to pursue even business owners who take serious precautions to avoid drug use at their events. Business owners have come to Congress and told us there are only so many steps they can take to prevent any of the thousands of people who may attend a concert or a rave from using drugs, and they are worried about being held personally accountable for the illegal acts of others. Those concerns may well be overstated, but they deserve a fuller hearing. In addition, the provision allowing civil suits dramatically increases the potential liability of business owners. Of course, this is a good thing when applied against those who are knowingly profiting from illegal drug use. But we have been told that even conscientious promoters may think twice before holding large concerts or other events where some drug use may be inevitable despite their best efforts. I do not know enough to know whether that claim is exaggerated, but I think we would have been well-served by making a greater effort to find out. Finally, I want to speak on a very important piece of legislation that I attempted to add in conference. I am deeply disappointed that the Republican House and Senate conferees refused to include in the conference agreement the ``Hometown Heroes Survivors Benefits Act of 2003,'' tri-partisan legislation that I introduced earlier this year with ten cosponsors, including the lead Republican cosponsor Senator Graham of South Carolina, who served as a member of this conference. This legislation would improve the Department of Justice's Public Safety Officers' Benefits (PSOB) program by allowing families of public safety officers who suffer fatal heart attacks or strokes to qualify for Federal survivor benefits. Every year, hundreds of public safety officers nationwide lose their lives and thousands more are injured while performing duties that subject them to great physical risks. While we know that PSOB benefits can never be a substitute for the loss of a loved one, the families of all our fallen heroes deserve our support for making the ultimate sacrifice. The PSOB Program currently provides a one-time financial benefits payment to the families of law enforcement officers, firemen, emergency response squad members, and ambulance crew members who are killed in the line of duty. Unfortunately, PSOB guidelines do not allow survivors of public safety officer who die of a heart attack or stroke while acting in the line of duty to collect those benefits, ignoring the fact that service-connected heart conditions are silent killers of public safety officers nationwide. I sought to include our tri-partisan bill in the conference report to fix the loophole in the PSOB program. This language would ensure that the survivors of public safety officers who die of heart attacks or strokes in the line of duty or within 24 hours of a triggering incident while on duty--regardless of whether a traumatic injury is present at the time of the heart attack or stroke--are eligible to receive financial assistance. Representative Etheridge and I introduced identical versions of this legislation last Congress, and the House bill passed that body, but an anonymous Republican hold in the Senate killed it. I am saddened that the House and Republican conferees voted to strike Hometown Heroes from consideration by the conference. They squandered a chance to pass legislation to support our first responders and their families by striking it in a strict party line vote. Public safety is dangerous, exhausting, and stressful work. A first responder's chances of suffering a heart attack or stroke greatly increase when he or she puts on heavy equipment and rushes into a burning building to fight a fire and save lives. The families of these brave public servants deserve to participate in the PSOB Program if their loved ones die of a heart attack or other cardiac-related ailment while selflessly protecting us from harm. It is time for both the Senate and House to show their support and appreciation for these extraordinarily brave and heroic public safety officers by passing the Hometown Heroes Survivors Benefit Act. Mr. President, I would like to take a moment to thank my staff for all their hard work on these provisions to protect our nation's children. I want to recognize Julie Katzman, Steve Dettelbach, Tara Magner, Ed Pagano, Phil Toomijian, Jessica Berry, Tim Lynch and Marguererite McConihe for their dedication to these important measures. Their diligence and professionalism do credit to this body. I also wish to recognize the staff of the other Senate conferees for their hard work, including Robin Toone, Neil MacBride, Tonya Robinson, Eric Rosen, Chad Groover, Mike Volkov, Reed O'Connor, Wan Kim, James Galyean, and William Smith. Finally, I wish to thank the staffs of the Democratic House conferees, including Perry Apelbaum, Bobby Vassar, Greg Branes, Ted Kalo, as well as Chairman Sensenbrenner's professional staff, especially Will Moschella, Phil Kiko, Beth Sokul, Sean McLaughlin and Jay Apperson.

Mr. LEAHY

Mr. LEAHY. Mr. President, when I pick up the newspaper, turn on the radio, or watch television, almost all of the media's attention is, understandably, focused on the war in Iraq. As a result, some important issues in other parts of the world are being overlooked or unreported. I want to call attention to some good news that has received very little attention: Congress has made some much needed progress on the very important issue of conflict diamonds. The role of diamonds in fueling brutal conflicts in Africa and funding terrorism is well documented, so I will not take much time recounting this history. Suffice it to say, that it is a critical problem and deserves serious attention and resources from Congress, the Bush Administration, and the international community. It is also well known that the diamond industry, key nongovernmental organizations (NGOs), and a number of governments came together to create an international regime aimed at stopping the trade in conflict diamonds, called the Kimberley Process. In January 2002, the process was launched and now the individual countries involved need to pass implementing legislation. It is important that the Congress pass legislation before the next Kimberley Process Plenary Meeting on April 28, 2003, to ensure that the United States continues to play a leadership role on this issue. However, the timing of the bill should not be the only factor. The legislation needs to reflect not just the wishes of the administration but also the views of a bipartisan group of Senators, including Senators Durbin, DeWine, Feingold, Gregg, and Bingaman, who have been working on this issue for years. The bill must also incorporate input from a wide range of NGOs, from Oxfam to Catholic Relief Services, that have dealt first-hand with the devastating consequences of conflict diamonds. S. 760, the Clean Diamonds Trade Act, does just that. I rise today to support this legislation. And assuming that a word in the section concerning the Kimberley Process Implementation Coordinating Committee is changed, I also support the House companion, H.R. 1584, which is virtually identical to S. 760. I commend Senators Grassley and Baucus for producing a solid, bipartisan bill to implement the Kimberley Process Certification Scheme (KPCS), an international system designed to ensure that rough diamonds entering the United States are legally mined and traded. When we began drafting this bill several months ago, the administration's proposed legislation was little more than hortatory. It was filled with permissive authorities that would have required the administration to do virtually nothing. It essentially said: ``Thanks, but we'll take care of the problem by ourselves.'' Through a consultative, bipartisan process, Senators Grassley and Baucus worked with interested Senators, the NGO community, and the diamond industry to shape the administration's proposal into meaningful legislation that contains a number of important provisions. For example, the bill contains a prohibition of the importation of rough diamonds; requires Government oversight of the U.S. Kimberley Process Authority--the industry body responsible for issuing certificates for U.S. rough diamond exports; and includes reporting requirements that can be used to gauge the effectiveness of the system and monitor attempts to circumvent it. In the administration's original proposal, these provisions either did not exist or were seriously watered-down. While S. 760 is a good bill and is one that I am pleased to cosponsor, there is room for improvement. There is nothing in this legislation that deals with polished stones. As a result, if an exporter were to make just one ``cut'' to a diamond it would be exempt from KPCS and the implementing legislation. I also think improvements can be made to the criminal penalties language, the provision on statistics collection, and a handful of other sections. But we all know that no bill is perfect and no Senator gets everything he or she wants in a broad, bipartisan bill. I mention these shortcomings, not to criticize the efforts of the authors of the bill, but rather for two important reasons. First, the shortcomings in the S. 760, as well as the KPCS itself, highlight the fact that Kimberley is an ongoing process and that additional regulations, legislation, and other measures will be necessary in the future. I am very pleased that Senators Grassley and Baucus have included a sense of Congress in S. 760 that says just that. Second, because the legislation gives the administration a good deal of flexibility, it is imperative that the State Department, Treasury Department, and other agencies follow through and implement the KPCS in an effective and timely manner. I can assure you that those of us who are co-sponsors of this legislation will be working to ensure this happens. As I have said with countless other pieces of legislation, you can have the best bill in the world, but it is not worth a whole lot if Congress and the administration do not put the resources behind it. I applaud the authors of the bill for including a Section in the bill that authorizes the President to provide technical assistance to developing nations seeking to implement the KPCS. But, it is up to the Appropriations Committee to make sure this initiative is funded. As ranking member of the Foreign Operations Subcommittee, I included a provision in the fiscal year 2003 bill that appropriated $2 million for this purpose. However, I have been informed that it is unclear if the State Department plans on utilizing these funds for their intended purpose, and that the Department might transfer it to other programs. This would be a big mistake. In order to effectively implement Kimberley, extremely poor nations, where diamonds are mined, will have to set up viable export-control and law enforcement systems. Many of these nations simply do not have enough resources to do this. Because of the links between conflict diamonds and terrorism, as well as human rights and humanitarian concerns, it is important that the United States provide technical assistance in order to have the most effective system possible. If providing a small amount of funding helps strengthen the KPCS, we should do it. Some in the administration might ask how one would go about implementing such a program. Those who ask those questions need to look no further than two programs that the U.S. Government has implemented in the past. The United States Agency for International Development supported a successful program in Sierra Leone to improve controls associated with the mining and export of diamonds. In addition, the United States provides technical assistance to nations to implement the World Trade Organization agreement. I am confident that these two programs can provide a model for the use of these funds. Americans buy 65 to 70 percent of the world's diamonds, including rough diamonds, polished stones and jewelry containing diamonds. It is up to the United States to provide leadership on this very important issue. Without us, the world will not make the kind of progress it needs to on this and other human rights related matters. This should not be hard for us to do. It is in our security interests. It is in our humanitarian interests. It is in our economic interests. With the passage of the Clean Diamonds Trade Act, Congress will take an important step forward. There is much more work that needs to be done, but I am confident that it can be done. In closing, I would like to thank some of those involved with this effort, including Everett Eissenstat and Carrie Clark of Senator Grassley's staff, Shara Aranoff of Senator Baucus' staff, Randy Soderquist of Senator Bingaman's staff, Laura Parker of Senator DeWine's staff, and last but certainly not least Cara Thanassi of Oxfam America. Without the help of these individuals, this bill would not have made it to first base. I thank them for their hard work.

Mr. LEAHY

Mr. LEAHY. Madam President, I rise today in support of the Charity Aid, Recovery, and Empowerment, CARE Act of 2003. The tax provisions in the CARE Act will encourage increased giving to charitable organizations across the country. In community after community, our charitable organizations have seen donations drop off significantly because of the sluggish economy. The CARE Act would allow taxpayers who do not itemize tax deductions to write off a portion of their charitable donations for 2 years-- nonitemizers would be limited to $250 for individuals and $500 for couples filing joint returns. The bill would also permit tax-free distributions from IRAs for charitable purposes and would provide enhanced deductions for contributions of food, books, computers and conservation easements. It is important to note that the $13.1 billion in tax allowances in the CARE Act are fully offset by tax shelter legislation that would impose stiff penalties on those who try to hide assets from the IRS. I am also pleased that the bill reported by the Senate Finance Committee on February 5 contains none of the controversial ``charitable choice'' provisions that hindered its passage in the last Congress. There are a number of bipartisan and noncontroversial tax incentive provisions in the CARE Act that I have supported as stand-alone bills, including the Artist-Museum Partnership Act, S. 287, that I coauthored with Senator Bennett, and the Good Samaritan Hunger Relief Act, S. 85, that I coauthored with Senator Lugar. Senator Bennett and I introduced the Artist-Museum Partnership Act to enable our country to keep cherished art works in the United States and to preserve them in our public institutions, while erasing an inequity in our Tax Code that now serves as a disincentive for artists to donate their works to museums and libraries. Under current law, artists who donate self-created works are only able to deduct the cost of supplies such as canvas, pen, paper and ink--a sum that does not come close to the works' true value. This is unfair to artists and it hurts museums and libraries large and small that are dedicated to preserving works for posterity. Our bill would allow artists, writers, and composers who donate works to museums and libraries to take a tax deduction equal to the fair-market value of the work. In my State of Vermont, we are incredibly proud of the great works produced by hundreds of local artists who choose to live and work in the Green Mountain State. Displaying their creations in museums and libraries helps develop a sense of pride among Vermonters and strengthens a bond with Vermont, its landscape, its beauty, and its cultural heritage. Anyone who has gained a greater understanding of both the artist and the subject by contemplating a painting in a museum or examining an original manuscript or composition knows the tremendous value of these works. I would like to see more of them, not fewer, preserved in Vermont and across the country. I would like to thank Senators Allen, Bingaman, Cantwell, Chafee, Clinton, Cochran, Daschle, Dodd, Durbin, Feinstein, Graham of Florida, Jeffords, Johnson, Kennedy, Kerry, Lieberman, Lincoln, Miller, Stevens, and Warner for cosponsoring our bill. The Good Samaritan Hunger Relief Act that Senator Lugar and I introduced represents a great partnership between businesses and organizations working to alleviate hunger. The bill will increase donations to food banks, soup kitchens, and other hunger relief charities and therefore help local communities and organizations become the first line of defense against hunger in America. Under current tax law, the deduction allowed for donated food does not cover expenses incurred by the business. In many cases, this means that it is cheaper for a business or farmer to throw away leftover food instead of donating it to the hungry. This legislation will make it easier for restaurants, food processors, and farmers to contribute food to food banks, pantries, and homeless shelters by allowing the deduction of the full market value of food donated. Over the years, the legislation has received the endorsement of various hunger relief and food community organizations, including America's Second Harvest Food Banks, the American Farm Bureau Federation, the California Emergency Foodlink, the Council of Chain Restaurants, the Grocery Manufacturers of America, Lighthouse Ministries Inc., the National Restaurant Association and the Salvation Army. I would like to thank Senators Akaka, Allen, Bayh, Bond, Cochran, Dayton, DeWine, Dodd, Durbin, Ensign, Fitzgerald, Harkin, Kerry, Landrieu, Miller, Roberts, Santorum, Schumer, and Smith for also cosponsoring our bill. I want to thank the chairman and ranking member of the Senate Finance Committee for including the Artist-Museum Partnership Act and the Good Samaritan Hunger Relief Act in the CARE Act. As we pass this important legislation today, I look forward to working with my colleagues to ensure that the bipartisan compromises contained in the Senate bill are preserved.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to introduce legislation that will provide much-needed grants for transitional housing services to victims of domestic violence who are brave enough to leave an abusive situation and seek a new life of safety and freedom. I am pleased that Senators Kennedy and Biden join me as original cosponsors of this important legislation. I witnessed the devastating effects of domestic violence early in my career as the Vermont State's Attorney for Chittenden County. Today, more than 50 percent of homeless individuals are women and children fleeing domestic violence. More than half the cities surveyed by the U.S. Conference of Mayors in 2000 cited domestic violence as a primary cause of homelessness. The women and children who leave their abusers tend to have few, if any, funds with which they can support themselves. Shelters offer short-term assistance, but are overcrowded and unable to provide the support needed. Transitional housing allows women to bridge the gap between leaving a domestic violence situation and becoming fully self-sufficient, but such assistance is limited because there is currently no Federal funding for transitional housing specifically for those victims. If we truly seek an end to domestic violence, then transitional housing must be available to all those fleeing domestic abuse. The stable, sustainable home base for women and their children found in transitional housing allows women the opportunities to learn new job skills, participate in educational programs, work full-time jobs, and search for adequate child care in order to gain self-sufficiency. Without such resources, many women eventually return to situations where they are abused and even killed. This cycle of domestic abuse must end, and transitional housing assistance is one of the tools we can use to end it. A transitional housing grant program was last authorized for only one year as part of the reauthorization of the Violence Against Women Act in 2000. This program would have been administered through the Department of Health and Human Services and provided $25 million in fiscal year 2001. Unfortunately, funds were never appropriated for the program, and the authorization has now expired. The grant program established in the bill I introduce today with Senators Kennedy and Biden would establish a new Department of Justice grant program that authorizes the Attorney General, acting in consultation with the Director of the Violence Against Women Office of the Department of Justice, in consultation with the Secretary of Housing and Urban Development and the Secretary of Health and Human Services. This program would have the benefit of a wide range of expertise in the three departments, and has enormous potential to improve people's lives. It would authorize $30 million in DOJ transitional housing grants for each of the fiscal years 2004 through 2008. This new grant program administered through DOJ will make a big impact in many areas of the country where availability of affordable housing is at an all-time low. There are many dedicated people working to provide victims of domestic violence with resources, such as Rose Pulliam of the Vermont Network Against Domestic Violence and Sexual Assault, but they can not work alone. We should all be concerned with providing victims of domestic violence a safe place to gain the skills and stability needed to make the transition to independence. This is an important component of reducing and preventing crimes that take place in domestic situations, ranging from assault and child abuse to homicide, and helping the victims of these crimes. I am please that our bill will be included in the conference report on the PROTECT Act, S. 151. I thank the conferees for including in the conference agreement this language for a grant program that will supply to victims fleeing domestic violence situations tangible means by which they may move on with their lives. I ask unanimous consent that a section by section analysis of this bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I ask for the yeas and nays on both nominees.

Mr. LEAHY. Madam President, I ask unanimous consent that it be in order at this point to request the yeas and nays for both nominees; that is, Dee Drell and Richard Bennett.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to introduce legislation that will provide much-needed grants for transitional housing services to victims of domestic violence who are brave enough to leave an abusive situation and seek a new life of safety and freedom. I am pleased that Senators Kennedy and Biden join me as original cosponsors of this important legislation. I witnessed the devastating effects of domestic violence early in my career as the Vermont State's Attorney for Chittenden County. Today, more than 50 percent of homeless individuals are women and children fleeing domestic violence. More than half the cities surveyed by the U.S. Conference of Mayors in 2000 cited domestic violence as a primary cause of homelessness. The women and children who leave their abusers tend to have few, if any, funds with which they can support themselves. Shelters offer short-term assistance, but are overcrowded and unable to provide the support needed. Transitional housing allows women to bridge the gap between leaving a domestic violence situation and becoming fully self-sufficient, but such assistance is limited because there is currently no Federal funding for transitional housing specifically for those victims. If we truly seek an end to domestic violence, then transitional housing must be available to all those fleeing domestic abuse. The stable, sustainable home base for women and their children found in transitional housing allows women the opportunities to learn new job skills, participate in educational programs, work full-time jobs, and search for adequate child care in order to gain self-sufficiency. Without such resources, many women eventually return to situations where they are abused and even killed. This cycle of domestic abuse must end, and transitional housing assistance is one of the tools we can use to end it. A transitional housing grant program was last authorized for only one year as part of the reauthorization of the Violence Against Women Act in 2000. This program would have been administered through the Department of Health and Human Services and provided $25 million in fiscal year 2001. Unfortunately, funds were never appropriated for the program, and the authorization has now expired. The grant program established in the bill I introduce today with Senators Kennedy and Biden would establish a new Department of Justice grant program that authorizes the Attorney General, acting in consultation with the Director of the Violence Against Women Office of the Department of Justice, in consultation with the Secretary of Housing and Urban Development and the Secretary of Health and Human Services. This program would have the benefit of a wide range of expertise in the three departments, and has enormous potential to improve people's lives. It would authorize $30 million in DOJ transitional housing grants for each of the fiscal years 2004 through 2008. This new grant program administered through DOJ will make a big impact in many areas of the country where availability of affordable housing is at an all-time low. There are many dedicated people working to provide victims of domestic violence with resources, such as Rose Pulliam of the Vermont Network Against Domestic Violence and Sexual Assault, but they can not work alone. We should all be concerned with providing victims of domestic violence a safe place to gain the skills and stability needed to make the transition to independence. This is an important component of reducing and preventing crimes that take place in domestic situations, ranging from assault and child abuse to homicide, and helping the victims of these crimes. I am please that our bill will be included in the conference report on the PROTECT Act, S. 151. I thank the conferees for including in the conference agreement this language for a grant program that will supply to victims fleeing domestic violence situations tangible means by which they may move on with their lives. I ask unanimous consent that a section by section analysis of this bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. With today's confirmation vote on the nominations of Dee Drell to the United States District Court for the Western District of Louisiana and Richard Bennett to the United States District Court of Maryland, Senate Democrats again demonstrate their bipartisanship toward consensus nominees. With these confirmations the Senate will have confirmed 18 judicial nominees of President Bush so far this year and 118 overall. During the entire four years of President Clinton's second term as President, Republicans never, not once, allowed the number of vacancies to dip below 50. The last time vacancies hit 49 was 7 years ago. So far this year we have confirmed more judicial nominees of President Bush than the Republican majority was willing to confirm in the entire 1996 session when President Clinton was in the White House. That entire year only 17 judges were confirmed all year and that included none to the circuit courts, not one. In contrast, already this session two highly controversial circuit court nominees have already been confirmed among the 18 judges the Senate has approved to date. Those confirmations, including one that had more negative votes than the required number of be filibustered but who was not filibustered, never get acknowledged in partisan Republican talking points. We are also ahead of the pace the Republican majority set in 1999 when it was considered President Clinton's judicial nominees--almost 6 months ahead. It was not until October that the Senate confirmed as many as 18 judicial nominees in 1999. In the prior 17 months I chaired the Judiciary Committee, we were able to confirm 100 judges and vastly reduce the judicial vacancies that Republicans had stored up by refusing to allow scores of judicial nominees of President Clinton to be considered. We were able to do so despite the White House's refusal to consult with Democrats on circuit court vacancies and many district court vacancies. There is no doubt that the judicial nominees of this President are conservatives, many of them quite to the right of the mainstream. Many of these nominees have been active in conservative political causes or groups. Democrats moved fairly and expeditiously on as many as we could consistent with our obligations to evaluate carefully and thoroughly these nominees to lifetime seats in the Federal courts. And we continue to do so. Unfortunately, many of this President's judicial nominees have proven to be quite controversial and we have had serious concerns about whether they would be fair judges if confirmed to lifetime positions. Those controversial judges take more time and raise more concerns. So, despite the fact that we are considering more controversial nominees from this President than with President Clinton, and despite the progress we have made in reducing judicial vacancies to the lowest level ever attained while President Clinton was in office and despite the pace of the lowest level ever attained while President Clinton was in office and despite the pace of confirmations, which exceeds that maintained by the Republican majority in 1999, Republicans still do nothing but criticize and castigate Senators if every judicial nominee is not confirmed by the Senate after a short debate. The question I have been asking and the American people should ask is why are the Senate Republicans picking fights rather than working with us to make additional progress. The best example of that is the Republican insistence on seeking to proceed on the most controversial among the President's nominees instead of the circuit court nominations that Democratic Senators have supported and will support to the Fifth Circuit, the nomination of Judge Edward Prado of Texas. Judge Prado's nomination was unanimously reported by the Judiciary Committee. To date, there has been no effort by the Republican leadership to allow the Senate to consider and vote on that nomination. I do not believe the cynical comments of some that Republicans will not allows us to turn to the Prado nomination because he is Hispanic and when the Senate confirms him it would demonstrate yet again that the outrageous charges of anti-Hispanic sentiment that Republicans have tried to make against Democrats were and are ridiculous. When Senator Hatch was chairman of the Committee and a Democratic President occupied the White House, Senator Hatch denied that even 100 vacancies was a vacancies crisis, according to a column he wrote for the September 5, 1997 edition of USA Today. During the Clinton administration, Senator Hatch repeatedly said that 67 vacancies was the equivalent of ``full employment'' in the Federal judiciary. As of these confirmations, there are not 49 judicial vacancies. By Senator Hatch's standards we have reached well beyond ``full employment'' on the Federal bench. Vacancies have dropped to this level in large part because during 17 months of Democratic control of the Senate, we confirmed 100 of President Bush's judicial nominees, even though Republicans averaged only 38 confirmations per year during their prior 6\1/2\ years of control of the Senate. We inherited 110 vacancies by the time the committee was permitted to reorganize in the summer of 2001, and we confirmed 100 judicial nominees. This historic number of confirmations in less than a year and a half, cut the number of vacancies to 60. There were 40 new retirements in this period. Chairman Hatch never acted as quickly on Clinton nominees. The Democratic leadership also moved to confirm 17 circuit court nominees, some of them quite controversial, in those 17 months, even though Chairman Hatch averaged only 7 circuit court confirmations per year during the Clinton administration. This year, two more circuit nominees of President Bush have been confirmed, although other controversial ones have not. These 19 confirmations of Bush circuit court nominees have reduced the number of circuit vacancies to 23. During the Clinton administration, Chairman Hatch and Senate Republicans blocked the confirmation of 22 circuit court nominees through anonymous holds, blue slips, and other procedures. Had those nominees been confirmed, and had Bush won the confirmation of 19 circuit nominees to vacancies that arose during his Presidency, the current number of circuit vacancies would be 1. Republicans caused what they call the circuit vacancy crisis. The number of circuit vacancies more than doubled from 16 in January 1995 when Republicans took over the Senate to 33 in the summer of 2001, when the committee was permitted to reorganize under Democratic control. Still, the Senate has already confirmed 19 of his circuit court nominees in less than 2 years. By comparison, President Reagan had 19 circuit nominees confirmed in his first 2 years in office as did President Clinton. The difference is that in both of those administrations, the Presidents were working with Senate majorities of the same political party. Lately I have heard Republicans complaining that not all of this President's circuit nominees have yet been confirmed, but he has had so many vacancies due to the massive obstruction of circuit seats by Republicans in the Clinton administration, doubling the number of circuit vacancies, as opposed to keeping the rate of vacancies steady or reducing them. Republicans now can be heard to complain that some circuit court nominees did not get a vote in 1992, but that situation does not compare to the long stall of Clinton's circuit court nominees, and her is why: Only 10 of the circuit nominees of President George H.W. Bush did not get a vote by the committee. Twenty-two of Clinton's circuit nominees did not get votes by the committee during Republican control. That is more than twice as many. Additionally, President George H.W. Bush won the confirmation of 67 percent of his circuit nominees between 1991 and 1992, a Presidential election year, which was consistent with prior Presidential election year congresses for President Reagan. In contrast, President Clinton won confirmation of only 15 of 34 circuit nominees in 1999-2000, about 44 percent. Thus, because of the Republican success in blocking appellate judges, President Clinton's circuit court nominees were actually more likely than not to not be confirmed, an indignity not suffered by Bush's nominees. This was nothing compared to 1996, the first election year in modern history and recollection in which not a single circuit nominee was confirmed all year, with Republicans in charge. Plus, I would note that 6 of President Clinton's circuit nominees in 1999-2000 were actually re-nominees, like Judge Richard Paez who even Chairman Hatch admitted was ``filibustered'' in 2000 and who waited more than 1,500 days to be confirmed. In fact, when you look at the actual percent of confirmations by session rather than the combined figure for two years, the percent of Clinton nominees blocked by Republicans is even more shocking. During 1999, only 7 of 25 Clinton circuit nominees were confirmed, or 28 percent, and 1999 was not a Presidential election year. In contrast, in 1991, the first President Bush won the confirmation of 9 of 17 nominees, or 53 percent. In 2000, Clinton won confirmation of 8 out of 25 nominees, including those not acted on in 1999, or 32 percent. In contrast in 1992, Bush won the confirmation of 11 of 21 circuit nominees, including those not acted on in 1991, which again was more than 52 percent. Despite the wide-scale obstruction or filibustering of Clinton circuit vacancies--filibustering after all comes from the Dutch word for piracy or taking things that do not belong to you--Democrats worked hard to turn the other cheek and fill vacancies that were allowed to go unfilled due to Republican holds. For example, under Democratic leadership, the Senate held the first hearing for a nominee to the Fourth Circuit in 3 years and confirmed him and another most controversial nominee, even though seven of President Clinton's nominees to that circuit never received hearings from Republicans. We proceed with the first hearing for a nominee to the Fifth Circuit in 7 years and confirmed her, even though three of President Clinton's nominees to that circuit never received hearings. In fact, we held hearings for all three of President Bush's nominees to that circuit even though three of President Clinton's nominees, Enrique Moreno, Jorge Rangel, and Alston Johnson, were never allowed hearings by Republicans. We proceeded with the first hearing on a nominee to the Sixth Circuit in almost 5 years and confirmed her and another controversial nominee to that circuit even though three of President Clinton's nominees to that circuit never received a hearing. We proceeded with the first hearing on a nominee to the Tenth Circuit in 6 years and confirmed three, even though two of President Clinton's nominees to that circuit were never allowed hearings. With the confirmation of the controversial Tim Tymkovich to the Tenth Circuit last week we have now filled a total of four vacancies on that court. The seat to which he was nominated had been vacant for more than 4 years despite President Clinton having nominated two qualified nominees, neither of whom was ever accorded a hearing. Had President Clinton's circuit court nominees been confirmed, the circuit courts would have been evenly balanced, with six circuits with a majority of Democratic appointees and six circuits with a majority of Republican appointees and one circuit with an even number of Democratic and Republican appointees. If President Bush succeeds in winning the confirmation of nominees to every circuit vacancy he inherited plus the ones that have arisen since then, only two circuits will have a majority of Democratic appointees and 11 will have a majority of Republican appointees. In many of those circuits, the Republican appointees will have at least a 2-1 majority on every panel on average. More than 67 percent of the appointments to those courts will be by Republicans. It is also important to remember when comparing what Republicans did to President Clinton's circuit nominees to what happened in 1992 that Chairman Biden moved through 66 of President Bush's judicial nominees in 1992, President George H.W. Bush's best year for confirmations, despite it being a Presidential election year. However, the Senate could not get through all of the nominees following the bipartisan judgeship bill of 1990 which increased the size of the Federal courts by more than 100 seats. In the 102nd Congress, Chairman Biden got through 124 of President George H.W. Bush's nominees, including his nominee to the Supreme Court, Clarence Thomas. In fact, the Republicans did not allow President Clinton to win the confirmation of a many judges in 1999 and 2000 combined as Chairman Biden got through for President Bush in 1992 alone. Finally, I would note that Chairman Biden moved through 20 circuit court nominees for President Bush in the 102nd Congress. As a consequence, the first President Bush was able to appoint 42 circuit judges in his one term as a President. Because of Republicans' blockade of any circuit court nominee to be confirmed in 1996, President Clinton was able to appoint only 30 circuit judges in his first term, more than 25 percent fewer than his predecessor, President George H.W. Bush, who had a Democratic Senate during his entire Presidency. In President Clinton's two full terms, Republican obstruction limited him to 65 circuit court appointment in those 8 years. In contrast, President George W. Bush has already appointed 19 circuit judges and, as I have indicated, the 20th confirmation, that of Judge Prado is stalled only because Republicans have refused to proceed to his consideration. President Bush is poised to appoint at least one-quarter of Federal appellate courts in just one term, due to the large number of circuit court vacancies he inherited from President Clinton which were the result of widespread Republican obstruction. The solution to the current logjam over circuit court judges is not to move them through more quickly with less scrutiny. The solution is for this President to consult with Senators from both parties in finding mainstream, consensus nominees, rather than this parade of activists and extremists that we have witnessed over these past few months. This President wants a clean slate on judicial nominees, but he refuses to do any of the work necessary to clean that slate. Instead of being a uniter in his judicial choices, he has divided this Senate and the American people by deferring to the far right wing of his party in the only lifetimes appointments in our entire government. The Senate Judiciary Committee has been ridiculed, and I am sad to say, rightly so, for becoming a rubberstamp, an assembly line for these important nominations to the second highest courts in our Federal Government. The solution is genuine consultation and accommodation rather than this race to pack the courts and tip the balance with nominees who have shown a lack of respect for individual rights. I am pleased to say, however, that not all of his nominees have been extremists. Particularly for the district court nominees when there has been bipartisan consultation, some of the judicial nominees have been conservative but within the mainstream. Since the Republican majority will not allow the Senate to consider Judge Prado, let me turn briefly to the nominees before the Senate. Mr. Drell has been a lawyer's lawyer, rather than a political or judicial activist as so many of President Bush's circuit nominees are. Dr. Drell has been a member and a leader of numerous State and Local bar associations. He served on the State Committee or Post-Conviction Representation for 5 years and assisted the State bar with attorney disciplinary matters. Dr. Drell has been active in the Family Mediation Council of Louisiana, where he served as a board member from 1986 to 1992. He also served as board member of the Rapides Parish Indigent Defender Board from 1987 to 1994. He served on the Louisiana Task Force on Racial and Ethnic Fairness in the Courts. Mr. Drell has also devoted a considerable amount of time to helping individuals suffering with AIDS on a pro bono basis. He is directly involved as volunteer counsel for Central Louisiana AIDS Support Services and AIDSLaw of Louisiana, Inc. These two organizations provide services to persons with AIDS and AIDS-related complex. He has also devoted time to the Delta Region AIDS Education and Training Center. In 1997, he received the Pro Bono Publico Award in 1997 from AIDSLaw of Louisiana. Mr. Drell ha a record of accomplishment and compassion as a lawyer of which we can all be proud. He has the full support of both of his home- State Senators. His record has generated no controversy or criticism. If only, our circuit court nominees had records such as his. This nomination is a good example of the kind of candidate who engenders bipartisan support. I congratulate Mr. Drell, his family and the Senators from Louisiana on his nomination and confirmation. The other nominee confirmed today is Richard Bennett of Maryland. There is no doubt that Mr. Bennett is a conservative and a Republican, yet he has the support of his home-State Senators and the support of Senate Democrats. In 1991, Mr. Bennett was chosen by President George H.W. Bush to be the United States Attorney for the District of Maryland and the Senate confirmed him without dissent. He has also run for State office as a Republican. He has litigated more than 100 cases, civil and criminal, most of which were in the Federal court to which he is nominated. He has received an AV rating from Martindale-Hubbell, been selected to The Best Lawyers in America, and also received a meritorious service medal for his work in the military as a staff judge advocate. Mr. Bennett served as special counsel to the Government Reform and Oversight Committee in 1997 and 1998 with Republican U.S. Representative Dan Burton, who was investigating campaign contributions during the 1996 election. He heads the Miles & Stockbrige Foundation, a charitable foundation. I congratulate Mr. Bennett and his family on his confirmation.

Mr. LEAHY

Mr. LEAHY. Mr. President, while the distinguished Senator from Florida is still in the Chamber, I wish to thank him for his impassioned comments. I am going to be speaking later this week on this same subject. I am one who, for a number of reasons--geopolitically, strategically, and economically--have not supported the current embargo on Cuba. I am, however--and I feel proud--as Vermonters say, I bow to nobody on the question of human rights on this floor. I met with Mr. Castro in Havana a couple years ago at a time when there was another crackdown of dissidents. I told him specifically what I felt about that in very strong words. He obviously disagreed with me, but I felt as an American in Cuba, it would be wrong for me not to express such a view. I will follow with a speech later this week on Cuba, but I hope my good friend from Florida, who has been such an extraordinary leader in this area over the years, when he was in State government in Florida, when he was in the House of Representatives, and as a Senator--he has been such an extraordinary leader. I hope he knows, no matter how one might feel about our overall relations with Cuba, no American should find justifiable the silence of those who simply wish to speak to basic human freedoms, basic human rights--the right of speech, the right of religion. These are issues that, from the time of Thomas Jefferson, Benjamin Franklin, John Adams, and George Washington, we have enunciated in this country, but I do not know any country that can claim any form of democracy and freedom that would feel that way. I commend my friend. I hope others will listen to him. I hope 90 miles from his home State that it will be heard as strongly as it was heard on the floor of the Senate. I commend him.