Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senate Judiciary Committee moved expeditiously to consider Judge Henry Autrey as it has with so many of President Bush's judicial nominees. We have done so despite the poor treatment of President Clinton's nominees by the Republicans when they were in the majority from 1995 through the first half of 2001. The vacancy being filled by this nomination is special. This is the vacancy that Justice Ronnie White should have been confirmed to fill. But on October 5, 1999, Republicans marched from their closed-door meeting to vote lockstep against Justice Ronnie White. This, even though he had been favorably reported twice by the Judiciary Committee with the apparent backing of from four and seven of the Republicans who served on the committee. I remember the treatment of Ronnie White very well, as do people in Missouri, I am sure. I recall the efforts made by Gov. Mel Carnahan on Justice White's behalf and how hard I had to work as the ranking Democrat to get his nomination reported to the floor, not once but twice, and to secure a floor vote after the nomination had been pending 2 years and had been pending on the Senate Executive Calendar for 9 months. It has now been been almost 5 years since anyone nominated to the Federal district court in Missouri has been confirmed. The vacancy to which Judge Autrey has been nominated has been vacant even longer-- since December 1996, when the late Judge Gunn took senior status. President Clinton nominated Missouri Supreme Court Judge Ronnie White to this vacancy in June 1997. He had to wait nearly a year for a hearing, until May 1998. The committee reported the nomination favorably to the Senate with only three negative votes of the 18 members of the committee. But his nomination sat waiting for a full Senate vote, and, having never received one, was sent back to President Clinton at the end of the 105th Congress after languishing for 6 months on the Senate floor without action. The President renominated Justice White in January of 1999. He was voted out of the committee a second time in July with at least four of the Republicans on the committee in apparent support of the nomination. After a great deal of effort on the part of Democratic Senators, I thought we had secured for him a fair floor vote. Instead, on October 5, 1999, the Republican-controlled Senate ambushed Justice White's nomination for partisan gain. As is by now a well-known story, Ronnie White was the victim of a sneak attack on that day. He was defeated on an unprecedented party-line Senate vote and was branded ``pro- criminal.'' These issues were aired during the confirmation hearing of John Ashcroft last year. Senator Specter, to his credit, offered an apology to Justice White for the way he was treated. When there is so much unfair criticism of the way Majority Leader Daschle and I have been handling nominations since the change in Senate control last July, I mention this to help contrast the treatment of judicial nominees by Democrats and Republicans. As I have said from the outset, the Democratic majority is treating President Bush's nominees more fairly and moving more of them more quickly than the Republican majority acted with respect to President Clinton's nominees. That is undeniable and today, in yet another example of the stark contrast in our approaches and our actions, we will join to confirm Judge Autrey to the Federal bench in Missouri. I commend, in particular, Senator Carnahan for her support of the fair treatment of Judge Autrey, despite the unfair way Justice White had been treated. Her actions underscore for us what we all know about her that she is a person of character and grace, willing to work on a bipartisan basis in the best interests of the State of Missouri. With today's vote on the nomination of Judge Henry Autrey to the District Court for the Western District of Missouri, the Democratic-led Senate will have confirmed a total of 65 judicial nominees since the change in Senate majority 1 year ago. The Senate has now confirmed more nominees in a little more than 1 year than were confirmed in any year during the past 6\1/2\ years of Republican control of the Senate, from 1995 through 2001. For that matter, we have confirmed more judges than were confirmed in 1996 and 1997 combined. Contrast the 65 judges confirmed by the Democratic Senate with the Republican average, during their past 6\1/2\ years of control, of confirming only 38 judges a year. I congratulate the nominee and his family on his confirmation today and commend Senator Carnahan and Majority Leader Daschle for all they have done to bring us to this day.

Mr. LEAHY

Mr. LEAHY. I thank the Chairman. I want to take this opportunity to say a few words about the importance of section 2015. A primary reason for the creation of the ICC is to remove the uncertainty and protracted negotiations surrounding the establishment of ad hoc tribunals to try those accused of genocide, war crimes, and crimes against humanity. In the future, the ICC may be the only venue for bringing to justice those accused of these heinous crimes. The Dodd-Warner amendment simply ensures that the United States can assist the ICC, or other international efforts, to try foreign nationals accused of war crimes, genocide, and crimes against humanity. It is not difficult to think of a number of instances when it would be in the interest of the United States to support such efforts. For example: What if 50 Americans, traveling overseas, are brutally killed by a suicide bomber and the ICC attempts to bring to justice the perpetrators of this horrendous act? What if a group of terrorists commits war crimes against U.S. military personnel who are posted abroad and the ICC is involved with efforts to bring them to justice? What if the ICC prosecutes some future Saddam Hussein, Slobodan Milosovic, or Osama bin Laden who is responsible for the deaths of thousands of people? Would we want the President of the United States to be hamstrung by ASPA in these, or a number of other cases, and prevented from actively supporting efforts by the ICC to bring these types of notorious criminals to justice? Of course not. Finally, I want to point out that Mr. Hyde also goes to great lengths to provide an interpretation of sections 2004, 2006, and 2011. Although I was not involved with the negotiations on ASPA with the Administration, I must say that the State Department's efforts with the House on this issue were miserable, and I know this is not typical of the way the Department represents U.S. interests abroad. The explanation that the State Department offers for supporting ASPA is that it did so in exchange for releasing the U.N. dues. This does not withstand the most basic scrutiny. In the wake of the September 11 attacks, there was overwhelming support in Congress to assist with efforts to prevent and respond to international terrorism. After September 11, without any quid-pro-quo, the Senate voted to confirm Ambassador John Negroponte to the position of U.S. representative to the United Nations. I am confident that the State Department, with a little ingenuity, could have persuaded the Republican majority in the House to meet our obligations to the United Nations--something that is clearly in our national security interests-- without having to agree to support ASPA. In any event, I take issue with Mr. Hyde's interpretation of sections 2004, 2006, and 2011, even though they are heavily qualified by the Dodd-Warner amendment. Again, one should look to legislative history only if the text of the provision is unclear, and in this case the text of ASPA is clear and does not support his reading. For example, there is nothing in the waiver language concerning the President's executive authority or authority as Commander-in-Chief that limits the waiver to a subset of this authority. Moreover, ASPA clearly states that the waiver applies to ``any action or actions . . .'' not to ``some'' actions. For Mr. Hyde's interpretation to be correct it would be necessary to add language to the provision such as: ``if it would be unconstitutional for Congress to restrict the exercise of this authority.'' Moreover, ASPA states that it applies to ``any action'' taken by the President as Commander-in-Chief or exercising ``the executive power'' of the Presidency. If the President has the constitutional authority to take an action, this provision permits him to do so, notwithstanding any other language in the bill. It is not relevant whether Congress could have prohibited such actions. Further, no matter what was said between those who negotiated ASPA, Mr. Hyde's interpretation of the provision was not necessarily in the minds of the majority of Members voting on ASPA because it simply was not mentioned during the House or Senate debates. These waiver provisions complement section 2015 which is highly relevant in interpreting them, as Senator Warner alluded to during the Senate debate. Congress decided that it did not want to tie the President's hands if he determined that it makes sense for the United States to cooperate with any international body, including the ICC, in prosecuting foreign nationals accused of genocide, war crimes, and crimes against humanity. I want to thank Senators Dodd and Warner for their efforts to ensure that ASPA does not include overly-burdensome restrictions on the President that prevent the U.S. from cooperating with the ICC. I also want to thank Senator Dodd's staff for providing valuable advice on this issue.

Mr. LEAHY. Mr. President, I read with interest the statement that Representative Hyde made on July 23, 2002 about the American Servicemembers' Protection Act (ASPA) during House consideration of the conference report on H.R. 4775, the fiscal year 2002 Supplemental Appropriations bill for Further Recovery From and Response to Terrorist Attacks on the United States. Although neither Mr. Hyde nor his staff were present during the negotiations on ASPA, he suggests that the House readily accepted section 2015, also known as the ``Dodd-Warner amendment'', which was unanimously included in the Senate-passed version of ASPA. I do not think it is necessary to engage in an exhaustive discussion of the legislative history of the Dodd-Warner amendment because it is clear on its face. And, the first rule of legislative interpretation is that one looks to the history only if a provision is ambiguous. To the extent that the legislative history is relevant, I believe that I can comment on this issue, as I was involved with the drafting of the amendment and was an original co-sponsor. Moreover, I was involved in negotiations over section 2015 during the conference on the Supplemental, and my staff was actively engaged in discussion on this issue throughout. Contrary to Mr. Hyde's suggestion that the House receded on section 2015 because it is ineffectual, the House understood that the effect of the Dodd-Warner amendment is to qualify provisions of ASPA, including sections 2004, 2006, and 2011, in cases involving foreign nationals. It was for that reason that the House conferees repeatedly and vigorously sought to remove all or part of it from the conference report. Those present at the negotiations know that the House agreed to accept the Dodd-Warner amendment only when the Senate agreed to drop its provision related to the United Nations Population Fund (UNFPA), which House supporters of ASPA strongly opposed. Mr. Hyde also asserts that section 2015 ``simply reiterates that this legislation does not apply to international efforts besides the International Criminal Court to bring to justice foreign national accused of genocide, war crimes, or crimes against humanity.'' As a former prosecutor and Chairman of the Senate Judiciary Committee, I appreciate the creativity of Mr. Hyde's argument. But he is trying to put a square peg into a round hole, and one would have to rewrite the provision to support his interpretation. The flaws in this interpretation are self-evident, if one simply reads the text of section 2015: Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden, other members of Al Qaeda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity. The language of this section is clear, and it is noteworthy that any iteration of the phrase ``besides the International Criminal Court'' does not appear anywhere in the text. In fact, when Senator Dodd and I were drafting this amendment, I specifically added the phrase ``and other foreign nationals accused of genocide, war crimes or crimes against humanity'' to ensure that this section would apply to the International Criminal Court (ICC). The ICC currently has jurisdiction over these three crimes. As I mentioned earlier, the importance of this phrase was not lost on the House, and opponents of the Dodd-Warner amendment tried repeatedly to nullify or remove it. It was even reported to me that, at the eleventh hour, House staff members sought, unsuccessfully, to insert the word ``other'' before the phrase ``international efforts to bring to justice . . .'', in an attempt to prevent the Dodd-Warner amendment from applying to the ICC and heavily qualifying portions of ASPA. Another important phrase in section 2015 is: ``Nothing in this title shall prohibit . . .'', which makes unequivocally clear that no provision in ASPA prevents the U.S. from cooperating with the ICC in cases involving foreign nations. No one disputes the fact that Congress has serious concerns about Americans coming before the ICC, which is the reason that ASPA was passed. During consideration of ASPA, Senator Warner made that point clear: This amendment would protect U.S. military personnel and other elected and appointed officials of the U.S. government against potential criminal prosecution by an international tribunal court to which the United States is not a party. However, through the Dodd-Warner amendment, Congress sets a different standard with respect to non-Americans. Congress wanted to be clear that the U.S. can cooperate with international efforts, including those by the ICC, to bring foreign nationals to justice for genocide, war crimes, and crimes against humanity, as Senator Dodd pointed out during the Senate debate: My amendment merely says that despite whatever else we have said, when it comes to prosecuting these people, we would participate and help, even though we are not a signatory or participant in the International Criminal Court. This is precisely why the Senate unanimously accepted the Dodd amendment and why the lead sponsor of ASPA, Senator Warner, joined as co-sponsor of the amendment. I see that Chairman Byrd is here on the floor and I would ask if he agrees with my recollection of events that transpired during the conference negotiations on the Supplemental and my interpretation of the Dodd-Warner amendment.

Mr. LEAHY

Mr. LEAHY. Mr. President, last Thursday Senate and House conferees reached final agreement on the Conference Report for H.R. 333, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2002. I look forward to Senate consideration of this measure in September, following House action on the conference report. It seems inevitable in a bill nearly five hundred pages in length, even with our most diligent efforts, that the conferees sometimes fail to catch all drafting errors. Shortly after the conference was concluded, it was brought to our attention that the effective date provision of Section 1234 contained an error. Section 1234 is not a new provision of law but a reiteration of current law, which Senator Baucus offered as a amendment to the Senate-passed bill. The House and Senate conferees agree to retain the provision during our conference. This section makes clear that a claim that is in bona fide dispute over the existence of liability, or the amount of that liability, cannot be used as a weapon for bringing an involuntary bankruptcy action. This clarification is consistent with the 1984 legislative history of this portion of Section 303 of the Bankruptcy Code. It also tracks the decisions of all five Courts of Appeals that have ruled on the bona fide dispute bar to the bringing of involuntary bankruptcy actions. Section 1234 restates and strengthens Congressional intent that an involuntary bankruptcy action should not be employed by creditors seeking to gain more leverage than they would have if they litigated contract disputes in the proper judicial forum. A party to a dispute over the amount or liability for a claim should not also be disadvantaged by the stigma and expense of an involuntary bankruptcy proceeding. Our overcrowded bankruptcy courts should not be burdened with such disputes. In as much as Section 1234 restates existing law, it is given immediate effect upon enactment. As it currently reads, due to a drafting error, it would not apply to cases now pending before the bankruptcy courts. This mistake would have a particularly perverse effect in the five federal circuits that have already ruled that the bona fide dispute standard applies to both liability and the amount thereof. As soon as the conferees became aware of this mistake, we worked to fashion a correction contained in a concurrent resolution to be adopted simultaneously with the conference report. In order to dispel any confusion regarding Congressional understanding and intent in this matter, I am placing the relevant portion of the agreed upon Concurrent Resolution in the Record. It directs the Clerk of the House to correct the enrollment of H.R. 333 by amending it as follows: ``Section 1234(b) of the bill by striking `shall not apply with respect to cases commenced under Title II of the United States Code before such date' and inserting `shall apply with respect to cases commenced under Title II of the United States Code before, on, and after such date'.''

Mr. LEAHY

Mr. LEAHY. Madam President, as much as I like and respect my distinguished colleague from Pennsylvania, I believe Judge Smith did not keep his commitment in testimony before the Senate, did not keep his commitment to Senator Howell Heflin, a commitment that was made under oath. This was the first opening of a Court of Appeals seat from the Western District of Pennsylvania. When I look at this, I look at the way he misled us in his initial description of the club that he belonged to and then further misled us in his intention. Frankly, I cannot support him. Every Senator can vote how they want. I cannot vote for him.

Mr. LEAHY. Madam President, we have at best a modicum of order in the Senate, but I will proceed. The record before us does not demonstrate that Judge D. Brooks Smith merits a promotion to the Court of Appeals. He is already serving a lifetime position as a Federal judge, but he continued as a member of a discriminatory club more than a decade after he told the Senate he would quit. He did not resign until 1999, and then only after this vacancy on the Third Circuit opened up. It should make no difference whether this club discriminated against women, or people because of their race or creed; it is discriminatory. He acknowledged that continuing in the club would be inconsistent with ethical rules, but he continued to serve there, even after he told Senator Heflin under oath in 1988 that under these rules he would be required to resign. I believe he did not keep his word. I think this is, frankly, the kind of lapse that, had it been somebody nominated by the previous President, my friends on the other side of the aisle would have voted against him. I think they should vote against this one, even though he is a member of their own party. We have the areas where he did not recuse himself in a case where he had a clear conflict of interest. He took special-interest-funded trips. I think his record as a whole calls into question his sensitivity, his fairness, his impartiality, and his judgment. I reserve the remainder of my time.

Mr. LEAHY. I ask for the yeas and nays on the pending nomination.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am disappointed that at the very last moment, the acceptance of the Drug Competition Act of 2001 as an amendment to ``The Greater Access to Affordable Pharmaceuticals Act,'' S. 812 was withdrawn. This bill, which enjoys the justified support of the administration's antitrust enforcement agencies, would have brought lower-priced generic drugs to the marketplace. Along with Senator Grassley, I have every confidence that this bill would have garnered the overwhelming support of our colleagues on both sides of the aisle and would have benefitted every American purchasing prescription drugs, and am mystified by the reversal of the agreement to accept it. I thank Senator Grassley and Senator Kennedy for their support. 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. S. 812 is a tremendous effort to improve timely introduction of generic pharmaceuticals into the marketplace, and into our medicine cabinets, and our amendment will provide an important tool in making that effort successful. While the Drug Competition Act is a small bill in terms of length, it is a large one 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. This had been a genuine bipartisan effort, and I must thank all my colleagues, including Senator Hatch who has a long-standing interest in these issues and who has praised S. 754 on the floor in recent days. Also, sub-committee Chairman Kohl has worked with me from the start on this effort, and I particularly want to thank our co-sponsor Senator Grassley, who has worked hard to reach consensus on this bill that will help protect consumers. This bill passed unanimously out of the Judiciary Committee last October, but it has been the subject of an anonymous hold on the floor, presumably unrelated to the merits. Partisan politics should not further delay enactment of this sensible, and universally applauded, bill into law. In fact, just yesterday the FTC released its long-awaited report on the entry of generic drugs into the pharmaceutical marketplace. The FTC had two recommendations to improve the current situation, 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 S. 754, 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 Republican 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 S. 754 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. The issue of drug companies paying generic companies not to compete was exposed last year by the FTC, and by articles in major newspapers, including an editorial in the July 26, 2000, The New York Times, titled ``Driving Up Drug Prices.'' This editorial concluded that the problem ``needs help from Congress to close loopholes in federal law.'' And while the FTC has sued pharmaceutical companies that have made such secret and anticompetitive deals, as the then Director of the Bureau of Competition Molly Boast testified before the Judiciary Committee in May 2001, the antitrust enforcement agencies are only finding out about such deals by luck, or by accident. 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 head start 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 to not sell the generic drug. The bill would have closed this loophole for those who want to cheat the public, but keeps the system the same for companies engaged in true competition. The deals would be reviewed only by those agencies--the agreements would not be available to the public. I think it is important for Congress not to overreact in this case 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. This bill would have accomplished precisely that goal. Moreover, it fits neatly into S. 812's provisions requiring a generic drug company that has been granted the exclusive, 180-day period on the market to forfeit that privilege if it makes a deal with a brand name company, or otherwise delays bringing its generic drug into the marketplace. Such a generic company must relinquish that 180-day privilege to the next generic manufacturer that can come to market. Both S. 812 and S. 754 share the goal of ensuring effective and timely access to generic pharmaceuticals that can lower the cost of prescription drugs for seniors, for families, and for all of us.

Mr. LEAHY

Mr. LEAHY. Mr. President, I yield myself such time as I may consume. I ask consent that following me, the Presiding Officer recognize the senior Senator from Utah; at 7:50 this evening, without using time from either side, the senior Senator from New Jersey be recognized for 10 minutes; and then we revert back to whichever member of the Judiciary Committee sought recognition.

Mr. LEAHY. Mr. President, the Senate is debating the nomination of D. Brooks Smith to the United States Court of Appeals for the Third Circuit. This, incidentally, is the 13th circuit court nominee to be considered by the Senate since the change in Senate majority and reorganization of the Judiciary Committee fewer than 13 months ago. That is an average of one court of appeals judge a month since the Democratic majority has been in place. That does set a record. We voted and confirmed three judges yesterday, one a circuit court of appeals judge. There are 10 other judicial nominees on the calendar. All have been approved on the Democratic side of the aisle. We have no objection to going forward with votes on them. I commend the Senator from South Dakota, the majority leader, Senator Daschle, who worked very hard to overcome the Republican objections so we can vote on President Bush's nominees to the judiciary. We set a record on the number of courts of appeals nominees who have been given hearings and votes. We have moved forward, including confirming one yesterday, and we will vote on another circuit court nominee tomorrow. That will be 13 in less than 13 months, plus more than 60 other judicial nominees for whom we have held hearings or on whom we have already voted. This seat on the Third Circuit is another example of the different ways in which the Republican majority and Democratic majority have proceeded. Today's debate is taking place in broad daylight. Under the Democratic majority, Judge Smith received a hearing less than 4 months after receipt of his ABA peer review. In contrast, Judge Cindrich was previously nominated for the same vacancy on the Third Circuit by President Clinton. He sat there for 10 months. You may wonder what happened at his hearing. He never got a hearing. You may wonder what happened on his vote. He never got a vote. He was never allowed a hearing; he was never allowed a vote. Four months after Judge Smith came up with his ABA papers, we had a hearing. This is one of the many court of appeals vacancies for which President Clinton nominated qualified and moderate nominees but the Republican majority would not allow a vote--neither a hearing nor a committee vote. Bonnie Campbell, Allen Snyder, and so many others--I am sure they have not been treated as fairly as Judge Smith's nomination. It is not enough to say some of the Republicans did not want those judicial nominees to be confirmed. I will vote against this nominee. I am the Chairman of the Committee. I could have refused to hold a hearing on Judge Smith. I could have refused to put his nomination on the calendar for a vote in our Committee. I did not. Even though, after the hearing, I made my up my mind to oppose this judge, I allowed the Committee to vote on his nomination and, if he got a majority vote in the Committee, allowed it to come to the Senate floor. That has always been the Democratic practice, and a practice that I follow. Every Senator, Democrat and Republican, will vote his or her conscience about the merits of Judge Smith's promotion to the appellate bench. I do not question the conscience of any Senator in doing that. While the course charted by the Democratic Senate to improve the process and hold judicial nominees is an honorable, difficult and time-consuming course, it is a road not taken in many instances by the Republicans in the recent past. Some nominees, such as Judge Smith, are a portrait of contradiction. Those on the other side can extol his accomplishments and his popularity, but they omit his failings. They minimize his troubling record on ethical issues and his decisions as a judicial officer. Some, we heard tonight, may belittle the genuine concerns raised by many and shared by some Members of this Senate. I believe they are legitimate concerns. As I said, I could have refused to allow him to have a hearing. I could have refused to allow him to have a vote in the Committee. I did not. I do have genuine concerns. Some on the other side may try to castigate or caricature those who express opinions that are in opposition to the confirmation of a nominee. They may even choose to vilify those who dare to vote against a nominee who may be popular but who may be flawed in so many important respects. All of these contrasting views and accusations might cause an outside observer to wonder what exactly is the truth. The fundamental questions are whether this particular nominee should be confirmed, whether he should be promoted to a higher court, and whether his record of conduct on and off the bench warrants promotion. A lifetime appointment to review the decisions of other judges is not a right. With the Supreme Court hearing fewer than 100 cases per year, it is the circuit courts that are really the courts of last resort for thousands of cases each year. These cases affect the Constitution, as well as statutes intended by Congress to protect the rights of all Americans; for example, the right to equal protection of the laws, the right to privacy, as well as the best opportunity to have clean air and clean water, not only for ourselves but for our future generations. These courts are where Federal regulations will be upheld or overturned, where reproductive rights will be retained or lost, and where intrusive Government action will be allowed or curtailed. They are courts where thousands of individuals have their final appeal in matters affecting their financial future, their health, their lives, their liberty. I believe this record does not demonstrate that Judge D. Brooks Smith merits this promotion. In saying this, I mean no disrespect to the senior Senator from Pennsylvania, Mr. Specter, who strongly supported the confirmation of this nominee, nor disrespect to the nominee who is well-liked by many. I genuinely mean no harm to Judge Smith, no matter how we vote tomorrow. He has a lifetime appointment and a lifetime salary as a Federal judge. It is fair to say, however, that this nominee's record is problematic in a number of ways. Among my many concerns is the fact that Judge Smith's action creates an appearance that is too often beholden to special interests. The Federal courts are supposed to be an independent judiciary that is not beholden to anyone--the left, the right, or any economic interests. An independent judiciary is the people's bulwark against the loss of their freedom and rights. A number of judges and lawyers in Pennsylvania have written to the Senate to support Judge Smith's confirmation. A number of individuals and groups from Pennsylvania and elsewhere in the Third Circuit and throughout the country have written to the Senate, have called and e- mailed our office to express their deep concerns about this nomination. We have heard from many Americans who are concerned about Judge Smith's record as a judge, including, incidentally, a resolution that was passed by the City Council of the City of Philadelphia. It was sent to us after the vote in the Judiciary Committee. It called for his nomination to be rejected. I am going to put in the Record at the end of my statement this City Council resolution, as well as the opinions of two ethics professors. I am disappointed that Judge Smith's record on and off the bench has resulted in this kind of controversy. As I reviewed his record as a judge, that record raised significant doubts in my mind as well. The issue for me is whether Judge Smith's record justifies this promotion from the lifetime Federal judgeship he now holds to the higher lifetime Federal judgeship. In this case, it is to a court that is only one step below the Supreme Court. Appellate judges in the circuit courts write opinions that become law, affecting all of us, whether we live in Pennsylvania, Utah, Vermont, or Illinois. I do not believe Judge Smith's record justifies this promotion. For one thing, he failed to keep his promise to resign from a discriminatory country club. Incidentally, that was not a promise that is something given in a political statement or to somebody in the press in response to an impromptu question. This was a promise Judge Smith made in a sworn statement before the Senate a few years ago. He belonged to a discriminatory club for more than a decade after he swore, after he took an oath, that he would quit if the rules were not changed to allow women to become members, in 1988. He stood there, he raised his right hand, he swore to tell the truth, and he told us that he would resign if women were not admitted by 1989. He did resign from this Spruce Creek Rod and Gun Club in 1999, 10 years later. What do you suppose was the thing that finally made him keep his word? A cynic would say that a vacancy had arisen on the court he wanted to be promoted to, and suddenly he thought: Wait a minute. I know I swore to resign by 1989--I had a lifetime judgeship and why do I have to resign from a club I like--but then suddenly, whoops, I might be promoted to even a higher Federal judgeship, maybe I better dust off that promise. I realize I am 10 years late, but better late than never. I find that extremely troubling. We had testimony by his supporters in letters that, well, the Spruce Creek is just a little fishing club, an itty-bitty fishing club of no consequence, kind of like a shack in the woods where a group of male friends might store their gear. It is not exactly an itty-bitty club. This here is the itty-bitty club. I have a little farmhouse in Vermont. My house probably would fit in the garage of this itty-bitty club. Look at this stately club. The Republicans may have missed one thing when they previously referred to this itty-bitty clubhouse, this inconsequential clubhouse as ``rustic.'' Maybe they didn't realize that, because it is such a stately and important place, it is on the National Registry of Historic Places. I bet your home, Mr. Presiding Officer, is not on the National Registry of Historic Places. Mine is not on the National Registry of Historic Places. I will bet the senior Senator from Utah's home is not on the National Registry of Historic Places. But this little no- consequence, little tiny fishing club, the itty-bitty fishing club, is on such a prestigious list. For nearly a century, this itty-bitty fishing club has been an exclusive recreational sportsmen's club that hosts its members and guests at its beautiful clubhouse. It has dining facilities. This itty- bitty clubhouse has fireplaces. It has bedrooms for overnight guests. It is not just a little bend in the road; it sits on hundreds of acres of prime real estate. We can joke about it. It is obvious that Judge Smith and his supporters thought we would not actually go and find a picture of the club. I think they probably wish that we would not go back to his sworn testimony in which he promised to resign 10 years before he did. But let us be clear about what this is. The sports club--it does not make a difference whether the sport pursued is fishing or golfing. There are a number of women's fly fishing clubs attesting to the interest of women in that sport, and that is fine. If men want to go off and go fly fishing themselves, that is fine. If women want to go off and go fly fishing, that is fine. But when they have facilities to conduct business and when businesspeople go there to conduct business and that is how you may be able to get ahead in the business world if you exclude women from it, if you say, women, if you want to be in business, you are not going to be able to join the moguls of the business or legal community here, then it is exclusionary. Women anglers who might have a fly fishing association could not walk into the Spruce Creek clubhouse. They could not fish in the stream called Spruce Creek that runs through the land owned by the club-- unless a man, who is a member, condescended to invite them. Frankly, it does not make any difference whether you exclude women or you exclude African Americans or you exclude people of particular religious faiths--it is still exclusion. That is why it is particularly troublesome that, when Judge Smith was up here the last time before the Senate seeking a lifetime appointment, he swore in sworn testimony to the Judiciary Committee and to the Senate of the United States that he would resign if he could not promptly get the club to change its exclusionary rules. Judge Smith did not resign within a year, or 2 years, as he had sworn. In fact, he did not resign within the time that the ethical rules that he was sworn to uphold as a judge required. He did not resign until 10 years later and then only when a new position on a higher court for someone from Western Pennsylvania opened up and he hoped to be appointed to it. There is no reasonable, logical explanation for why he waited for more than 10 years to follow through except that one: There is now a vacancy on a court that he wanted to go to, the Third Circuit from Western Pennsylvania. Claims that the ethical rules changed to allow his continued membership are groundless. The reason I stress this is that we have judicial nominations hearings, and the distinguished Senator from Utah, the distinguished Senator from Illinois, we have all sat in these hearings. You ask for certain commitments from judicial nominees because once they are confirmed they have a lifetime position. When a nominee comes before the Senate and makes a commitment, we must rely on his or her word to honor that the promise will be kept. With Federal judges that is especially true. Once confirmed, they have lifetime appointments. Impeachment is not a realistic way to enforce such commitments and, unlike Republicans in the House and Senate a few years ago, I have never suggested impeachment of Federal judges. If we allow such a promise, whether it is about club membership or some other issue, to be so flagrantly broken with no consequence, then promises and assurances to the United States Senate will mean very little. I think that is a bad precedent. I think that is a bad message to send to future nominees to the courts and to the executive branch: just tell us what we want to hear and then ignore those commitments without any consequence. I cannot think of another occasion in which a judicial nominee has promised to take specific actions and then been confirmed, after failing to keep his word. It is true that some judicial nominees have been confirmed after resigning from a discriminatory club, but none have ever been confirmed after telling the Senate that they would resign and then failing for years to do so. The closest analogy I recall is the failed nomination of Judge Kenneth Ryskamp to the 11th Circuit, because Judge Ryskamp was on notice that membership in discriminatory clubs was impermissible, but he continued his membership in a discriminatory club anyway. As a district court nominee of President Reagan in 1986, Judge Ryskamp admitted that he was then a member of the University Club, which had a rule against allowing women as members, and the Riviera Club, which had no race-specific membership rules, but which in practice had no Jewish or African American members. During his 1986 hearing, Senator Simon asked Ryskamp if he thought he should resign from the University Club, and Ryskamp promised the Senate, ``I will resign from any club the Committee feels is inappropriate.'' In 1986, he was not asked specifically about the Riviera Club, which he later said he did not consider to be a discriminatory club. He subsequently resigned from the University Club, but not the Riviera Club. During his nomination by the first President Bush to the Eleventh Circuit, Judge Ryskamp's two-decade long membership in the Riviera Club was questioned extensively. For example, Senator Kennedy noted that the fact that the Senate had not specifically asked Judge Ryskamp to resign from the Riviera Club did not lessen his responsibility to follow the ethical rules anyway and resign. I recall that Judge Ryskamp told me that he resigned shortly before his confirmation hearing in March 1991 because his continued membership created the appearance of impropriety, not because, in his view, the Club discriminated. In April 1992, the motion to report favorably Judge Ryskamp's circuit nomination to the floor was defeated. The subsequent motion to send the nomination to the floor without recommendation also failed. Unlike Judge Smith, Judge Ryskamp never promised to resign from the club at issue, although several Senators believed Judge Ryskamp should have done so following his first confirmation. I think it only reasonable that Judge Smith's conduct regarding his previous promise to the Senate would lead a reasonable person to doubt the sincerity of his assurances to the Senate this year in other areas, as well. Breaking a promise to the Senate, or misleading the Senate into believing that certain action would be taken, is an independent yet unusually strong reason for the rejection of a judicial nominee. I do not think Judge Smith should be given a promotion after failing to keep his word to the Senate. If his statements to the Senate in 1988 were not promises, then he most assuredly misled the Senate into believing he was going to resign, and he did not do so within any period that can be considered reasonable. On this basis alone, I feel I must vote against Judge Smith's confirmation to the Third Circuit. Spruce Creek invidiously discriminates against women. Prior to his nomination to be promoted to the Third Circuit, Judge Smith never informed the Senate that he did not have to keep his promise to the Senate. He acknowledged in both his 1988 and 2001 Senate Questionnaires that the Club violated the ethical rules against judges belonging to clubs that engage in invidious discrimination. In fact, when Judge Smith finally resigned from the Club in December of 1999, he told the Club's president that the Club's men-only membership rules ``continue to be at odds with current expectations of Federal judicial conduct.'' It is only now that questions have been raised about his very late resignation does he belatedly assert for the first time that the Club is ``purely social'' and so the rules against discriminatory club membership do not apply. The exception he seeks to create would swallow the rule. His statements on this point really give me pause with respect to how Judge Smith would follow the law as an appellate judge or whether he would seek to bend it to his personal purposes. Public officials should not have to be told, repeatedly, not to belong to clubs that discriminate. We have received a letter from Professor Stephen Gillers, the Vice Dean of the New York University School of Law, observing that the ethical rules against discriminatory club membership do not apply to purely private social clubs that do not allow business or professional meetings. However, both Professor Gillers and Professor Monroe Friedman, a distinguished ethics scholar, have noted that if club members can or do sponsor events or meetings at the club that are business or professionally related then the club cannot be called purely private and the club's discrimination against membership for women is ``invidious'' within the meaning of the Code of Conduct's prohibitions. This is true even if women are allowed, by the men who belong to the club, to attend some or all business and professional meetings hosted by the club's members. I understand that, in fact, Spruce Creek has always allowed members to host business and professional meetings at its facilities. We know that members have hosted business meetings and gatherings of their professional colleagues at the Club. The President of the Club, who has been a member for decades, told Senate staff that members can use Club facilities for any meetings or occasions they want, without any oversight, but he refused to discuss the specific ways the Club is used by members for business meetings. We also know that the Club's constitution and by-laws do not discourage the members from hosting business, professional or political meetings at the Club. Women, regardless of their standing in the community or in their profession, cannot invite their colleagues to Spruce Creek for business meetings because they are explicitly and intentionally excluded from membership. Additionally, according to Professor Gillers, Judge Smith had an obligation to make sure that the Club maintained a purely social purpose, if he was going to claim that his membership was exempt from the ethical rules. He could not merely assume that it did. There is no ``don't ask, don't tell'' exception to the ethical rules. Given his previous assurances to the Senate and his own admissions up to and including his resignation in 1999, he can hardly assert that the Club is ``purely social'' now, as an after-the-fact justification for his conduct. He has made no showing in support of this belated contention. Professor Gillers' view of this obligation to inquire is consistent with the guidance in the Judicial Conference's Compendium to the Code of Conduct for United States Judges. Judge Smith also did not follow the Compendium's advice regularly to re-evaluate club membership policies and practices. Judge Smith also did not seek an ethics opinion from his fellow Federal judges about whether the rules against discriminatory club membership somehow exempted this Club to which he so badly wanted to belong. Judge Smith now says that he did not seek an ethics opinion because it was so clear to him that the ethics rules did not apply to this Club after amendments in 1992 that supposedly let him off the hook. This is another implausible and self-serving assertion. As Professor Gillers noted, the 1992 amendments to the Code of Conduct for United States Judges without a doubt strengthened the prohibition against discriminatory club membership by adopting the language of the ABA code referred to in the Senate Questionnaire that Judge Smith promised to follow when he swore to the Senate that he would resign. The only significant difference is that the rule Judge Smith promised to follow in 1988 allowed judges one year to get discriminatory rules changed or resign, while the 1992 rule gave judges up to two years, from learning of discrimination according to the Code's new, tougher rules, to change the club's practices or resign. Yet, Judge Smith did not resign in 1989, 1990, 1991, 1992, 1993, or 1994. He did not resign until a chance for a higher position in the Federal courts became available in 1999. I recall that more than a decade ago the Senate Judiciary Committee considered this issue at length. There was testimony from women and men from across the country describing the impact of discriminatory private clubs on the women and people of color excluded. From time to time, I suppose, reminders of these lessons are necessary. In 1990, 2 years after Judge Smith was confirmed and promised the Senate that he would resign from the mens-only Spruce Creek Club, the Senate Judiciary Committee passed a sense of the Committee resolution on the issue of discriminatory clubs. The resolution stated that discrimination at clubs where business is conducted and which intentionally exclude women and minorities is ``invidious'' and ``conflicts with the appearance of impartiality required of persons who may serve in the federal judiciary.'' The Committee's resolution that was adopted on August 2, 1990, provides a bright-line rule for public officials. It defines the clubs at issue as those where members bring business clients or professional associates to the club for conferences, meetings, meals, or use of the facilities. Spruce Creek meets this definition. It is also obviously a place where contacts valuable for business purposes, employment and professional advancement are formed. The Club, by arbitrarily and intentionally excluding women from membership, practices invidious discrimination as defined by the Senate Judiciary Committee. Public officials should not have to be told repeatedly not to belong to clubs that discriminate. All judges, no matter how popular, have a solemn obligation to ``avoid the appearance of impropriety in all activities,'' under both the Judicial Conference's Code of Conduct for United States Judges and the ABA's model code. That is because, in the words of those codes, ``Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.'' This prohibition applies ``to both the professional and personal conduct of a judge.'' The Judiciary Committee's club resolution similarly sets a high standard of conduct for Federal judges in their personal conduct with regard to club memberships and association. Judge Smith has failed in those obligations. He may very well be a nice person and courteous to women litigants in his courtroom, but that does not excuse him from following the ethical rules that govern his conduct as a lifetime appointee to the Federal courts. Ethical rules apply to all judges equally, regardless of popularity. Judge Smith had an obligation to resign from the Spruce Creek Rod and Gun Club, both by virtue of his promise to the Senate and because of his responsibilities under the ethical codes, and he failed to do so in a timely fashion. His conduct should not be rewarded with a promotion. I would also like to set the record straight on one final related point. Supporters of Judge Smith have referenced President Jimmy Carter visiting the Club. According to Carter's memoirs, however, one time in the late 1970s President Carter and the First Lady were invited by the ``Spruce Creek Hunting and Fishing Club for a day of fishing on a portion of their leased stream.'' That day, they met the man who actually owned that parcel of land and thereafter they visited and stayed at his farm, not the Club. The chapter in his book called ``Spruce Creek'' relates to the creek, not the Club. There is no evidence that President Carter has ever endorsed the Club's intentional, invidious discrimination against women. Judge Smith failed to recuse himself promptly from conflicts of interest. I am also concerned about Judge Smith's late recusal, or disqualification, in two cases involving his substantial financial investments. According to two distinguished professors of legal ethics, Professor Gillers and Professor Friedman, Judge Smith also violated ethical rules due to his late recusal from the Black cases, a 1997 investment fraud case and a related 1999 criminal case. This is because it is undisputably true that Judge Smith and his wife had substantial investments (valued at between $200,000 and $500,000 together) in the bank or holding company that faced significant financial liability in those cases and because his wife also worked at the bank. In one of those cases, Judge Smith waited five months to recuse himself. In the other case, he waited about a week to recuse himself after realizing that the bank was involved, but he issued significant orders in the intervening period. In both cases, Judge Smith revealed only his wife's employment at the bank to the lawyers in the cases. He never disclosed their substantial financial investments to the lawyers in either the civil or the criminal case. Judge Smith contends that he was not required to recuse himself but did so only in ``an abundance of caution.'' He also contends, basically, that nobody was harmed by his late recusal. In the opinions of two ethics experts, however, Judge Smith was required to recuse himself from any case in which the judge or his spouse has any interest that could be substantially affected by the outcome of the case, in accordance with the rules passed by Congress in 28 U.S.C. Sec. 455 (a) and (b) (4), and with cases of the Supreme Court and Third Circuit. These rules against conflicts of interest, which are intended ``to avoid even the appearance of partiality,'' are largely self-enforcing. Parties may not know that a judge has substantial financial investments affected by the case and may not move to disqualify a judge unless the judge fully discloses such information. Judge Smith, again reading ethical rules narrowly, did not do so. Such facts do not give one confidence in his conduct on the bench. I do think this Senate should take seriously a lifetime appointee's failure to follow ethical rules, in this area and others, such as discriminatory club membership. It is problematic to confirm someone to the Court of Appeals who would read the ethical obligations so narrowly. This is especially so because, under the structure of the Federal courts, it is the circuit court judges who preside over ethics complaints against lower federal judges. I do not think those who read such rules narrowly should be elevated and given that special responsibility. Judge Smith's remarks as a Federal District Court judge: Another troubling area is Judge Smith's insensitive and activist speeches. A number of these remarks call into question Judge Smith's judgment and fairness. For example, as a sitting federal judge he has given speeches in which he calls ``legal spam'' cases that affect the rights of ordinary Americans, such as cases involving their financial security, social security appeals, pension plan collection cases, and bankruptcy appeals. Such a characterization is shocking for its insensitivity to the importance of such cases to the individuals seeking a fair hearing of their claims in federal court. It calls into question how seriously Judge Smith has taken his oath as judge to administer justice to all persons equally and to ``do equal right to the poor and to the rich.'' Judge Smith also spoke out in favor of parties being required to pay each other's costs in responding to discovery requests. That idea--like the idea of requiring the loser in a case to pay the winner's expenses, which he also endorsed has been widely rejected because it would impose significant financial burdens on individuals suing corporations, for example, for personal injuries caused by a defective product. Such a rule could make it impossible for individuals to pursue legitimate grievances for which Congress has provided a federal court forum. Another concern is Judge Smith's speeches to conservative ideological groups in which he basically gives advisory opinions about the constitutionality of federal statutes. For example, in 1993, as a sitting judge, he gave a far-reaching speech to the Federalist Society in which he advised the audience that the proposed Violence Against Women Act (VAWA) was unconstitutional. He said this landmark legislation could not be justified as within the power of the federal government. He was also very critical of Congress's extensive findings of fact in VAWA, calling them a ``promiscuous invocation of the Commerce Clause.'' This lack of deference and respect to the legislative findings of a co-equal branch of government is troubling. Judge Smith told the Federalist Society his own principles for deciding such cases: ``First, ask whether the subject matter is within the power of the national government by express delegation in the text of the [C]onstitution, or impliedly through a historically honest reading of the necessary and proper clause. If not stop!'' Such a subjectively narrow reading of the Constitution could ostensibly result in the overturning of many laws intended to protect the rights of individuals. He assured the Senate at his recent hearing that he would not read the Constitution so narrowly if he were promoted, but in 1988 he also assured the Senate that he would resign from a discriminatory club the following year, a promise he did not keep. I am not sure his assurances on the important issue of the scope of Congressional power should be credited now. Similarly, Judge Smith gave a speech at the 1997 National Convention of the Federalist Society on ``The Federalization of Criminal Law.'' In it he criticized the invocation of federal jurisdiction via the Commerce Clause in a ``routine'' car bombing case under 18 U.S.C. Sec. 844, as well as the ``rape-shield'' amendments to the Federal Rules of Evidence which generally bars evidence of a rape victim's sexual history. Judge Smith took issue with federal intrusion into these areas of the law, stating that using that statute in car bombing cases and rules like the rape-shield rule reflect ``elitism: a mind set on the part of Congress and some federal prosecutors that the state court systems can't be trusted to `get it right' . . . never mind the text of the Constitution.'' Such statements are unsettling. It seems as though Judge Smith has a deep distrust that Congress does not follow the Constitution, despite the precedent that requires judges to give congressional enactments a presumption of constitutionality. Judge Smith has also written an article endorsing an idea he calls ``benign judicial activism'' in which a judge intervenes early in a case to help reach a speedy and just resolution. While this idea has superficial appeal, in practice this approach may not be so benign. In about half of Judge Smith's more than 50 reversals, the Third Circuit reversed his decisions either to grant summary judgment in whole or in part to defendants in civil cases or to dismiss plaintiffs' complaints with prejudice. In a number of such reversals which span his years on the bench the Third Circuit took issue with his early intervention in cases in ways that denied plaintiffs the opportunity to have their cases adjudicated or tried on the merits. Thus, the Court of Appeals to which Judge Smith is now nominated has repeatedly reversed decisions of his which improvidently granted summary judgment or dismissals in favor of civil defendants, often big, corporate defendants. This pattern, combined with his speeches and conduct, raises concern. Judge Smith's participation in seminars at resorts paid for by special interests is problematic. Another area of concern is that Judge Smith has attended a large number of educational seminars funded by corporations and groups with an interest in interpreting the law a particular way, in a politically or ideologically conservative way favoring corporate interests. As a sitting federal judge, Judge Smith has spent more than 72 days on junkets at luxury resorts on trips valued at more than $37,000 which were funded by corporations and conservative special interest groups. Judge Smith has taken three trips to seminars funded by the Foundation for Research on Economics and the Environment (FREE), which promotes ``free market environmentalism,'' opposes environmental regulations, and gives lectures on topics like ``Liberty and the Environment: A Case for Principled Judicial Activism.'' He has also taken nine trips funded by the Law and Economics Center (LEC), which is affiliated with George Mason Law School and which sponsors seminars with anti-regulatory bent on topics like ``Misconceptions about Environmental Pollution and Cancer.'' My colleague on the Senate Judiciary Committee, Senator Feingold, has spent a great deal of time trying to address the problem of these junkets. The current ethical rules do not clearly prohibit such judicial education seminars at luxury resorts paid for by special interests, and it is difficult for outsiders to obtain information about who is really footing the bill. According to one report, however, Judge Smith has presided over at least two dozen cases involving corporations that funded LEC and he is one of the most frequent fliers to such seminars. I do think it is difficult to maintain the appearance of impartiality under such circumstances. It is axiomatic that judges must be perceived as fair and impartial, and actually be so, for our system of justice to work. I am troubled by Judge Smith's insensitivity to such matters. Judge Smith's reversals for dismissing plaintiffs' claims: I am also concerned about the unsettling anti-plaintiff pattern in Judge Smith's judicial decisions. Judge Smith's published and unpublished decisions reveal numerous instances in which he has been more solicitous to corporations than to plaintiffs and pro se litigants. Judge Smith has been reversed by the Third Circuit dozens of times for denying plaintiffs the opportunity to try the merits of their cases. In cases involving personal injuries, toxic torts, employee rights, and civil rights claims by prisoners, Judge Smith has been reversed for improvidently granting defendants' motions for summary judgment, prematurely dismissing plaintiffs' complaints, and inappropriately denying motions for injunctive relief without giving the plaintiffs a hearing. Overall, Judge Smith has been reversed 51 times, including 18 unpublished reversals, in 14 years. In contrast, Judge Pickering was reversed 28 times in 11 years and Judge Barrington Parker, one of President Bush's nominees who was confirmed last fall, was reversed nine times in 11 years on the district court bench. The Third Circuit's reversals suggest that Judge Smith's political philosophy greatly influences the outcome in cases before him. Of the many problematic reversals and published, as well as unpublished, decisions of Judge Smith on the district court, three are particularly illustrative of his approach to claims of plaintiffs, but there are many others that raise concerns. In Metzgar v. Playskool, 30 F.3d 459 (3d Cir. 1994), for example, three Reagan appointees reversed Judge Smith's dismissal by summary judgment to the corporate defendant that had been sued for the death of a 15-month-old child who choked on a wooden block marketed without a warning label. Judge Smith granted summary judgment to the corporation on his theory that choking is an obvious danger and therefore no express warning was necessary. The Third Circuit was ``troubled'' by Judge Smith's analysis and his reliance on flawed statistics. The appellate court concluded that Judge Smith should have given the jury a chance to consider whether the blocks were so obviously dangerous that no specific warning was needed for parents of toddlers. In Wicker v. Consolidated Rail Corporation, 143 F.3d 690 (3d Cir. 1998), Judge Smith was reversed for granting summary judgment to an employer sued under the Federal Employees Liability Act (FELA) for injuries caused by exposure to toxic solvents, degreasers and paints illegally dumped and buried by the employer. Smith granted the corporation's motion for summary judgment on the ground that the workers had signed a release settling prior, unrelated injury claims against the railroad. The Third Circuit reversed and held that FELA was intended to protect workers in these situations and that the releases seized on by Smith were invalid. In Brown v. Borough of Mahaffey, 35 F.3d 846 (3d Cir. 1994), Judge Smith improvidently granted summary judgment to a city that refused to allow the plaintiff and his Pentecostal ministry access to tent revival meetings in violation of their rights under the Free Exercise Clause of the First Amendment. The city had intentionally locked a recently- erected gate to impede access to the Christian revival meetings. Judge Smith concluded erroneously that these actions, even if manifesting anti-Christian bias, did not constitute a substantial burden on the exercise of their religion. The Third Circuit reversed, holding that Judge Smith's analysis was ``inappropriate for a free exercise claim involving intentional burdening of religious exercise'' because ``[a]pplying such a burden test to non-neutral government actions would make petty harassment of religious institutions and exercise immunity from the protection of the First Amendment.'' The Third Circuit completely disagreed with Judge Smith's hostile decision in which he stated that the plaintiff's ``invocation of the First Amendment provisions guaranteeing religious liberty in so glaring a piece of spiteful litigation is insulting to the principles protected by that constitutional amendment.'' I was shocked by Judge Smith's rough and disrespectful treatment of the legitimate claims of people of faith in this case. This unsettling pattern created by Judge Smith's judicial decisions, his high level of participation in right wing, special interest-funded junkets, his activist and insensitive speeches, his late recusal in cases involving his substantial financial interests, and his very belated resignation from a discriminatory club create a very unfavorable impression. Judge Smith's defense to each of these significant problems seems to be that he actually is a fair judge despite the appearance that he is not. I am not convinced that his record warrants a promotion to a higher court. Judge Smith's cramped and self-serving approach to the ethical rules that are supposed to govern federal judges is particularly troubling. He seems to think he is above the rules. His actual record of conduct on and off the bench creates a negative impression that is not reflected in Judge Smith's apparent popularity among his friends. I have no doubt that Judge Smith is an intelligent and charismatic person. What his record as a whole, not just as a colleague or friend, calls into question is his sensitivity, his fairness, his impartiality and his judgment. It calls into question how seriously he has taken his promises and assurances to the Senate in the past and recently, as well as how seriously he has taken his oath as judge to administer justice to all persons equally and to do equal right to the poor and to the rich. The record Judge Smith's own record of performance as a federal judge over these past 14 years does not merit his promotion to one of the highest courts in the land. Based on that record, I will vote against confirmation. My good friend from Utah is waiting patiently. I withhold the remainder of my time.

Mr. LEAHY

Mr. LEAHY. Madam President, in my earlier statement, I praised the distinguished senior Senator from Pennsylvania for working hard to get through the judges on the Western District of Pennsylvania. For year, after year, after year, after year, after year, after year, a Republican hold blocked any consideration of the nominations by President Clinton for those same seats. But thanks to the distinguished senior Senator from Pennsylvania, we have been able to move forward quickly. This, incidentally, will be the 63rd judge confirmed by the Senate since the change in majority about this time last year.

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

Mr. LEAHY. Madam President, I will yield time on this side, if the distinguished Republican leader wants to yield the time on his side. Madam President, I withhold that.

Mr. LEAHY

Mr. LEAHY. Mr. President, with today's votes on these judicial nominations to the Federal district courts in Pennsylvania, the Democratic-led Senate will have confirmed 63 judicial nominees since the change in Senate majority a little more than 1 year ago. I commend Majority Leader Daschle for having worked through the problems created by the White House's refusal to proceed in a bipartisan way with nominations to bipartisan boards and commissions and for having worked with Senator McCain to get to this point. I understand Senator McCain's frustration with the White House and how it is treating nominations but thank him for allowing us to proceed with these judicial nominations at this time. In fact, this majority leader has worked hard to bring these nominations to the floor and his efforts have included having to proceed by way of cloture on three nominees in the last few weeks. He has gone the extra mile and that should be acknowledged. Similarly, the Judiciary Committee continues to make efforts that were not made by the Republican leadership. We have held hearings on a record number of nominees and reported a record number of nominees. Seventy-five judicial nominees have been voted on by the Judiciary Committee since the change in majority last summer. This week we will hold a hearing for the 82nd, 83rd, 84th and 85th judicial nominees, including our 18th circuit court nominee. We have proceeded with nominees to fill vacancies even though Republicans held up moderate nominees by President Clinton to those same vacancies. We have confirmed new judges for the Fourth, Fifth, and Sixth Circuit courts of appeals for the first time in three, six and five years, respectively. So much for the partisan critics who scream about a blockage of President Bush's nominees by Democrats in the Senate. The facts are that we have been fairer to President Bush's nominees than the Republicans were to President Clinton's. Today is another example. The Senate has acted quickly on these nominations to the district courts in Pennsylvania. Joy Flowers Conti participated in a hearing in May, within weeks of her paperwork being complete. I know that Senator Specter strongly supports Ms. Conti's nomination, as well as Mr. Jones, and he specifically requested that she be accorded a hearing as soon as possible. Likewise John Jones received a hearing in May, shortly after his paperwork was completed. With today's votes on two Pennsylvania nominees, the Judiciary Committee will have held hearings for 10 district court nominees from that State, including Judge Davis, Judge Baylson, and Judge Rufe, who were confirmed in April, and Judge Conner, who was just confirmed last Friday. Those confirmations illustrate the progress being made under Democratic leadership and the fair and expeditious way this President's nominees are being treated. With today's confirmations, there is no State in the Union that has had more Federal judicial nominees confirmed by this Senate than Pennsylvania. I think that the Senate Judiciary Committee and the Senate as a whole have done well by Pennsylvania. Contrast this with the way vacancies in Pennsylvania were left unfilled during Republican control of the Senate, particularly regarding nominees in the western half of the State. Despite the best efforts and diligence of my good friend from Pennsylvania, Senator Specter, to secure confirmation of all of the judicial nominees from every part of his home State, there were seven nominees by President Clinton to Pennsylvania vacancies that never got a hearing or a vote. A good example of the contrast is the nomination of Judge Legrome Davis. He was first nominated to the position of U.S. District Court Judge for the Eastern District of Pennsylvania by President Clinton on July 30, 1998. The Republican-controlled Senate took no action on his nomination and it was returned to the President at the end of 1998. On January 26, 1999, President Clinton renominated Judge Davis for the same vacancy. The Senate again failed to hold a hearing for Judge Davis and his nomination was returned after 2 more years. Under Republican leadership, Judge Davis' nomination languished before the committee for 868 days without a hearing. Unfortunately, Judge Davis was subjected to the kind of inappropriate partisan rancor that befell so many other nominees to the district courts in Pennsylvania during the Republican control of the Senate. The lack of Senate action on Judge Davis's initial nominations is in no way attributable to a lack of support from the senior Senator from Pennsylvania. Far from it. In fact, I give Senator Specter full credit for getting President Bush to renominate Judge Davis earlier this year and commended him publicly for all he has done to support this nomination from the outset. This year we moved expeditiously to consider Judge Davis, and he was confirmed in just 84 days. The saga of Judge Davis recalls for us so many nominees from the period of January 1995 through July 10, 2001, who never received a hearing or a vote and who were the subject of secret anonymous holds by Republicans for reasons that were never explained. In contrast, the hearing we had earlier this year for Ms. Conti was the very first hearing on a nominee to the Western District of Pennsylvania since 1994, in almost a decade, despite President Clinton's qualified nominees. No nominee to the Western District of Pennsylvania received a hearing during the entire period that Republicans controlled the Senate in the Clinton administration. One of the nominees to the Western District, Lynette Norton, waited for almost 1,000 days, and she was never given the courtesy of a hearing or a vote. Unfortunately, Ms. Norton died earlier this year, having never fulfilled her dream of serving on the Federal bench. Today's confirmation vote on Ms. Conti will be the first on a nominee to the Western District of Pennsylvania in almost 8 years, since Judge McLaughlin and Judge Cindrich were confirmed in October of 1994. Despite this history of poor treatment of President Clinton's nominees, we continue to move forward fairly and expeditiously. Large numbers of vacancies continue to exist, in large measure because the recent Republican majority was not willing to hold hearings or vote on more than 50 of President Clinton's judicial nominees, many of whom waited for years and never received a vote on their nomination. It is Democrats who have broken with that history of inaction from the Republican era of control, delay, and obstruction. With today's confirmations of Judge Conti and Judge Jones to the Federal district courts in Pennsylvania, the Senate will have confirmed 51 district court nominees and 63 judges overall since the change in majority last summer. Contrast this with the Republican average, during their past 6\1/2\ years on control, of 31 district court judges a year and 38 judges a year overall. I congratulate the nominees and their families on their confirmations today and commend Senator Specter and Majority Leader Daschle for all they have done to bring us to this day.

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

Mr. LEAHY

Mr. LEAHY. Mr. President, with today's vote, the Senate will confirm the 12th judge to our Federal courts of appeals and our 61st judicial nominee since the change in Senate majority last summer. In little more than 1 year, the Senate Judiciary Committee has already voted on 75 of this President's judicial nominees, including 15 nominees to the courts of appeals. This is more circuit and district court nominees than in any of the previous 6\1/2\ years of Republican control. In fact, we have given votes to more judicial nominees than in 1996 and 1997 combined, as well as in 1999 and 2000 combined. Despite the partisan din about blockades and stalls and inaction as well as absurd claims that judicial nominees are being held ``hostage''--the fact is that since the change in majority last summer the Senate, and in particular the Judiciary Committee, has been working at a much faster rate than in the 6\1/2\ years of Republican control. With respect to courts of appeals nominees, we confirmed the first of President Bush's nominees last July 20 and today we confirm the 12th. That is a confirmation rate of approximately one circuit court nominee confirmed per month. By contrast, in the 76 months in which Republicans were in charge, only 46 courts of appeals judges were confirmed, at a rate closer to one every two months. Thus, despite the additional obstacles and roadblocks that the partisan practices of the new administration have created and the partisan rhetoric of our critics, we are actually achieving almost twice as much as our Republican counterparts did. With a little cooperation from the administration and the nomination of more moderate, mainstream candidates, we would be even further along. During the 76 months under the Republican control before the Judiciary Committee was allowed to reorganize, vacancies on the Federal courts rose from 63 to 110. Vacancies on the Courts of Appeals more than doubled from 16 to 33. That is the situation created by Republican inaction and that is the situation we inherited. Since the change in majority, confirmations have gone up and vacancies have been going down. Courts of Appeals vacancies are being decreased rather than continuing to increase, despite the high level of attrition since the shift in Senate majority last summer. Indeed, in the last year the Judiciary Committee held the first hearing on a Fifth Circuit nominee in 7 years, the first hearing on a Tenth Circuit nominee in 6 years, the first hearing on a Sixth Circuit nominee in almost 5 years, the first hearing on a Fourth Circuit nominee in 3 years, the first hearing on a Ninth Circuit nominee in 2 years. This week we held hearings on a third nominee to the Fifth Circuit in less than a year. This contrasts with the lack of any confirmation hearing on any of President Clinton's nominees to the Fifth Circuit in the last 5\1/2\ years of Republican control of the confirmation process, despite three qualified nominees to vacancies there. The nominee being considered today is the first nominee to the Sixth Circuit to be given a vote by the Senate since 1997. After that, the Republican majority locked the gates and despite a number of well-qualified nominees sent to the Senate by President Clinton between 1995 and 2001, none were allowed to receive a hearing or a vote for all of 1998, 1999, 2000 and the first 3 months of 2001. Most of the vacancies that exist on the Sixth Circuit arose during the Clinton administration and before the change in majority last summer. Yet not one of the Clinton nominees to those current vacancies on the Sixth Circuit received a hearing by the Judiciary Committee under Republican leadership. The Sixth Circuit vacancies are a prime and unfortunate legacy of the past partisan obstructionist practices under Republican leadership and one of a number of examples of circuits in which the vacancies were preserved rather than filled by the former Republican majority in the Senate. That is what created the problem that we are now trying to correct. Vacancies on the Sixth Circuit were perpetuated during the last several years of the Clinton administration when the Republican majority refused to hold hearings on the nominations of Judge Helene White, Kathleen McCree Lewis, and Professor Kent Markus to those vacancies in the Sixth Circuit. One of those seats has been vacant since 1995, the first term of President Clinton. Judge Helene White of the Michigan Courts of appeals was nominated in January 1997 and did not receive a hearing on her nomination during the more than 1,500 days before her nomination was withdrawn by President Bush in March of last year. Judge White's nomination may have set one or a number of unfortunate records for obstruction established during the years 1996-2001. Her nomination was pending without a hearing before this committee for over 4 years 51 months. She was first nominated in January 1997 and renominated and renominated through March of last year when President Bush chose to withdraw her nomination. This was at a time when the committee averaged hearings on only nine courts of appeals nominees a year and, in 2000, held only five hearings on courts of appeals nominees all year. In contrast, Judge Gibbons was the 11th courts of appeals nominees voted on by the committee during the first 10 months of a Democratic majority. As of today, the Democratic-led Judiciary Committee has held hearings for 17 of President Bush's courts of appeals nominees in less than 13 months, and we will hold our 18th hearing for a courts of appeals nominee this week. Kathleen McCree Lewis, a distinguished lawyer from a prestigious Michigan law firm, also did not receive a hearing on her 1999 nomination to the Sixth Circuit during the years it was pending before it was withdrawn by President Bush in March 2001. She is the daughter of Wade McCree, a former Solicitor General of the United States and former Sixth Circuit judge. Professor Kent Markus, another outstanding nominee to a vacancy on the Sixth Circuit that arose in 1999, never received a hearing on his nomination before his nomination was returned to President Clinton without action in December 2000. While Professor Markus' nomination was pending, his confirmation was supported by individuals of every political stripe, including: 14 past presidents of the Ohio State Bar Association; more than 80 Ohio law school deans and professors; prominent Ohio Republicans, including Ohio Supreme Court Chief Justice Thomas Moyer, Ohio Supreme Court Justice Evelyn Stratton, Congresswoman Deborah Pryce, and Congressman David Hobson; the National District Attorneys Association; and virtually every major newspaper in the State. Professor Markus summarized his experience as a Federal judicial nominee in testimony this May in a hearing before Senator Schumer. Here are some of things he said: On February 9, 2000, I was the President's first judicial nominee in that calendar year. And then the waiting began. . . . At the time my nomination was pending, despite lower vacancy rates than the 6th Circuit, in calendar year 2000, the Senate confirmed circuit nominees to the 3rd, 9th and Federal Circuits. . . . No 6th circuit nominee had been afforded a hearing in the prior two years. Of the nominees awaiting a Judiciary Committee hearing, there was no circuit with more nominees than the 6th Circuit. With high vacancies already impacting the 6th Circuit's performance, and more vacancies on the way, why, then, did my nomination expire without even a hearing? To their credit, Senator DeWine and his staff and Senator Hatch's staff and others close to him were straight with me. Over and over again they told me two things: No. (1) There will be no more confirmations to the 6th Circuit during the Clinton Administration, and No. (2) This has nothing to do with you; don't take it personally it doesn't matter who the nominee is, what credentials they may have or what support they may have--see item number 1. . . . The fact was, a decision had been made to hold the vacancies and see who won the presidential election. With a Bush win, all those seats could go to Bush rather than Clinton nominees. As Professor Markus identified, some on the other side of the aisle held these seats open for years for another President to fill, instead of proceeding fairly on the consensus nominees pending before the Senate. Republicans were unwilling to move forward, even knowing that retirements and attrition would create four additional seats that would arise naturally for the next President. That is why there are now eight vacancies on the Sixth Circuit and why it is half empty. Long before some of the recent voices of concern were raised about the vacancies on that court, Democratic Senators in 1997, 1998, 1999, and 2000 implored the Republican majority to give the Sixth Circuit nominees hearings. Those requests, made not just for the sake of the nominees but for the sake of the public's business before the court, were ignored. Numerous articles and editorials urged the Republican leadership to act on those nominations, to no avail. Fourteen former presidents of the Michigan State Bar pleaded for hearings on those nominations. The former chief judge of the Sixth Circuit, Judge Gilbert Merritt, wrote to the Judiciary Committee chairman years ago to ask that the nominees get hearings and that the vacancies be filled. The chief judge noted that, with four vacancies--the four vacancies that arose in the Clinton administration--the Sixth Circuit ``is hurting badly and will not be able to keep up with its work load due to the fact that the Senate Judiciary Committee has acted on none of the nominations to our Court.'' He predicted: ``By the time the next President is inaugurated, there will be 6 vacancies on the Courts of appeals. Almost half of the Court will be vacant and will remain so for most of 2001 due to the exigencies of the nomination process. Although the President has nominated candidates, the Senate has refused to take a vote on any of them.'' Nonetheless, no Sixth Circuit hearings were held in the last 3 years of the Clinton administration, despite these pleas. Not one. Since the shift in majority last summer, the situation has been exacerbated further as two additional vacancies have arisen. The committee's April 25th hearing on the nomination of Judge Gibbons to the Sixth Circuit was the first hearing on a Sixth Circuit nomination in almost 5 years, even though three outstanding, fair- minded individuals were nominated to the Sixth Circuit by President Clinton and were pending before the committee for anywhere from 1 year to over 4 years. We have not stopped there but have proceeded to hold a hearing on a second Sixth Circuit nominee, Professor John Rogers of Kentucky, and the Judiciary Committee has acted on that nomination, as well. Large numbers of vacancies continue to exist on many courts of appeals, in large measure because the recent Republican majority was not willing to hold hearings or vote on more than half--56 percent--of President Clinton's courts of appeals nominees in 1999 and 2000 and was not willing to confirm a single judge to the courts of appeals during the entire 1996 session. As I have noted, from the time the Republicans took over majority control of the Senate in 1995 until the reorganization of the committee last July, circuit vacancies increased from 16 to 33, more than doubling. Democrats have broken with the Republican majority's history of inaction. I certainly understand the frustration of Senator Levin and Senator Stabenow. I know first hand the efforts they have made to solve the problems in their circuit. I know that many of us have suggested ways to the White House to break through and resolve the impasse. As the chairman of the Judiciary Committee, despite my personal doubts and reservations about this nominee due to some of her decisions as a Federal district court judge, I will vote to confirm her, due to her overall record, her testimony before the committee and the strong support of Senator Thompson. I respect the effort and views of Senator Thompson and want to send what help we can to the Sixth Circuit. Far from payback for Republican actions in the recent past, this action is being taken in spite of those wrongs and to begin solving the problems that they have created.

Mr. LEAHY

Mr. LEAHY. Mr. President, with today's confirmation of Mr. Christopher Conner to the District Court for the Middle District of Pennsylvania, the Democratic-led Senate will have confirmed a total of 60 judicial nominees since the change in Senate majority a little over one year ago and 49 district court nominees. Today's nominee has not proven to be very controversial and the Senate has acted quickly on this nomination. Mr. Conner was nominated in March of this year to a relatively recent vacancy and received a hearing in May, shortly after his paperwork was completed. With today's confirmation, the Judiciary Committee will have held hearings for a total of 10 District Court nominees from Pennsylvania, including Judge Davis, Judge Baylson and Judge Rufe, who were confirmed in April. Those confirmations illustrate the progress being made under Democratic leadership and the fair and expeditious way this President's nominees are being treated. With today's confirmation, we will have confirmed four nominees to the District Courts in Pennsylvania. I think that the Senate Judiciary Committee and the Senate as a whole have done well by Pennsylvania, despite some of the obstructionist practices during Republican control of the Senate, particularly regarding nominees in the Western half of the State. Nominees from Philadelphia were not immune from Republican obstructionist tactics, despite the best efforts and diligence of my good friend from Pennsylvania, Senator Specter, to secure confirmation of all of the judicial nominees from all parts of his home State, without regard to which party controlled the White House. For example, Judge Legrome Davis was first nominated to the position of U.S. District Court Judge for the Eastern District of Pennsylvania by President Clinton on July 30, 1998. The Republican-controlled Senate took no action on his nomination and it was returned to the President at the end of 1998. On January 26, 1999, President Clinton renominated Judge Davis for the same vacancy. The Senate again failed to hold a hearing for Judge Davis and his nomination was returned after two more years. Under Republican leadership, Judge Davis' nomination languished before the Committee for 868 days without a hearing. Unfortunately, Judge Davis was subjected to the kind of inappropriate partisan rancor that befell so many other nominees to the district courts in Pennsylvania and to the Third Circuit during the Republican control of the Senate. I want to note emphatically, however, that I know personally that the senior Senator from Pennsylvania, strongly supported Judge Davis's nomination and worked hard to get him a hearing and a vote. The lack of Senate action on Judge Davis's initial nominations are in no way attributable to a lack of support from the senior Senator from Pennsylvania. Far from it. In fact, I give Senator Specter full credit for getting President Bush to renominate Judge Davis earlier this year and commended him publicly for all he has done to support this nomination from the outset. This year we moved expeditiously to consider Judge Davis, and he was confirmed within a few months of his renomination by President Bush. The saga of Judge Davis recalls for us so many nominees from the period of January 1995 through July 10, 2001, who never received a hearing or a vote and who were the subject of secret anonymous holds by Republicans for reasons that were never explained. At Judge Davis' recent confirmation hearing Senator Santorum testified that Judge Davis did not get a hearing because local Democrats objected. I was the ranking Democrat on the Judiciary Committee during those years and never heard that before. My understanding at the time, from July 1998 until the end of 2000, was that Judge Legrome Davis would have had the support of Senator Specter as well as every Democrat on the Judiciary Committee and in the Senate. Despite that bipartisan support, he was not included by the then- Chairman of the Committee in the May 2000 hearing for a few other Pennsylvania nominees. In contrast, the hearing we had earlier this year for Ms. Conti was the very first hearing on a nominee to the Western District of Pennsylvania since 1994, in almost a decade, despite qualified nominees of President Clinton. No nominee to the Western District of Pennsylvania received a hearing during the entire period that Republicans controlled the Senate in the Clinton Administration. One of the nominees to the Western District, Lynette Norton, waited for almost 1,000 days, and she was never given the courtesy of a hearing or a vote. Unfortunately, Ms. Norton died earlier this year, having never fulfilled her dream of serving on the Federal bench. Large numbers of vacancies continue to exist, in large measure because the recent Republican majority was not willing to hold hearings or vote on more than 50 of President Clinton's judicial nominees, many of whom waited for years and never received a vote on their nomination. It is the Democrats, not the Republicans, who have broken with that history of inaction from the Republican era of control, delay and obstruction. With today's confirmations of Mr. Conner to the Federal district courts in Pennsylvania, the Senate will have confirmed 49 district court nominees, meaning that more than 8 percent of the district court nominees confirmed so far are from Pennsylvania.

Mr. LEAHY

Mr. LEAHY. Mr. President, yesterday during my floor remarks on the final passage of H.R. 2673, the Sarbanes-Oxley Act, I requested unanimous consent that a section by section analysis and discussion of Title VIII, the Corporate and Criminal Fraud Accountability Act, which I authored, be included in the Congressional Record as part of the official legislative history of those provisions of H.R. 2673. That unanimous consent request was granted, but due to a clerical error, this essential legislative history was not printed in yesterday's Congressional Record. It is my understanding that this document will appear in yesterday's Congressional Record when the historical volume is compiled. However, in order to provide guidance in the legal interpretation of these provisions of Title VIII of H.R. 2673 before that volume is issued, I ask unanimous consent that the same document be printed in today's Congressional Record and be treated as legislative history for Title VIII, offered by the sponsor of these provisions, as if it had been printed yesterday.

Mr. LEAHY

Mr. LEAHY. Mr. President, I thank Chairman Sarbanes for his leadership on this impressive bill and on the conference agreement. The then-Congressman Sarbanes was one of the first people I met when I came to Washington as an elected Member of this body. We have been friends from that time forward. I have been so pleased to work with him. I am proud that the conference agreement includes and adopts the provisions of the Leahy-McCain amendment, which the Senate adopted by a 97-to-0 vote--again, with the strong help and support of the Senator from Maryland. These provisions are nearly identical to the Corporate and Criminal Fraud Accountability Act, which I introduced with Majority Leader Daschle and others in February. It was reported unanimously by the Senate Judiciary Committee in April. The Presiding Officer helped get this through the Judiciary Committee. The Leahy-McCain amendment provides new crimes with tough criminal penalties to restore accountability and transparency in our markets. It accomplishes this in three ways: No. 1. It punishes criminals who commit corporate fraud. No. 2. It preserves evidence that can prove corporate fraud. No. 3. It protects victims of corporate fraud. As a former prosecutor, I know nothing focuses one's attention on the question of morality like seeing steel bars closing on them for a number of years because of what they did. The conference report includes a tough new crime of securities fraud which will cover any scheme or artifice to defraud investors. We added the longer jail term of the other body. There are three key provisions of the Senate-passed bill that were not in the recently passed House bill but are now in the conference agreement. I think they are truly an essential part of a comprehensive reform measure. First, we extend the statute of limitations in securities fraud cases. In many of the State pension funds cases, the current short statute has barred fraud victims from seeking recovery for Enron's misdeeds in 1997 and 1998. For example, Washington State's policemen, firefighters, and teachers were blocked from recovery of nearly $50 million in Enron investments by the short statute of limitations. That is why the last two SEC Chairmen--one a Republican and the other a Democrat--endorsed a longer short statute of limitations to provide victims with a fair chance to recoup their losses. Secondly, we include meaningful protections for corporate whistleblowers, as passed by the Senate. We learned from Sherron Watkins of Enron that these corporate insiders are the key witnesses that need to be encouraged to report fraud and help prove it in court. Enron wanted to silence her as a whistleblower because Texas law would allow them to do it. Look what they were doing on this chart. There is no way we could have known about this without that kind of a whistleblower. Look at this. They had all these hidden corporations-- Jedi, Kenobi, Chewco, Big Doe--I guess they must have had ``little doe''--Yosemite, Cactus, Ponderosa, Raptor, Braveheart. I think they were probably watching too many old reruns when they put this together. The fact is, they were hiding hundreds of millions of dollars of stockholders' money in their pension funds. The provisions Senator Grassley and I worked out in Judiciary Committee make sure whistleblowers are protected. Third, we include new anti-shredding crimes and the requirement that corporate audit documents be preserved for 5 years with a 10 year maximum penalty for willful violations. Prosecutors cannot prove their cases without evidence. As the Andersen case showed, instead of just incorporating the loopholes from existing crimes and raising the penalties, we need tough new provisions that will make sure key documents do not get shredded in the first place. It only takes a minute to warm up the shredder, but it can take years for prosecutors and victims to prove a case. The conference report also maintains almost identical provisions to those authored by Senator Biden and approved unanimously by the Senate. These include enhanced criminal penalties for pension fraud, mail fraud, wire fraud, and a new crime for certifying false financial reports. As chairman of the Judiciary's Subcommittee on Crime and Drugs, Senator Biden deserves praise for his leadership of these issues. It is time for action--decisive and comprehensive reforms that will restore confidence and accountability in our public markets for the millions of Americans whose economic security is threatened by corporate greed. We cannot stop greed, but we can keep greed from succeeding. We have seized this moment to make a good beginning to fashion protections for corporate fraud victims, preserve evidence of corporate crimes and hold corporate wrongdoers accountable. We have much to do to help repair the breaches of trust that have so shattered confidence in our markets and market information. We have made a good start today toward restoring that confidence but more will be needed. In addition we will need swift and strong enforcement actions and good faith administration of the reform set forth in our conference report. Our conference is concluding but our work is just beginning. Again, I thank the Senator from Maryland.

Mr. LEAHY. Mr. President, I thank the chairman. The Senator from California wishes 1 minute. I yield 1 minute to her.

Mr. LEAHY

Mr. LEAHY. Mr. President, in recent days the Senate has begun to consider a number of proposals designed to help Americans afford their needed prescription drugs, not the least of which is to create a Medicare prescription drug benefit. This is an important debate, and one that has been a long time in coming to the floor of the Senate. Now we have the opportunity to not just talk about creating a Medicare drug benefit but to prove to our Nation's seniors and disabled that we stand by our word. The amendment offered by Senators Graham, Miller, and others is the best proposal before us, and it is one that I urge my colleagues to support. I am pleased to be an original cosponsor of this piece of legislation because it is the only one that would create a new, voluntary prescription drug benefit within the Medicare Program that all beneficiaries would be eligible for. Under the Graham-Miller proposal, Medicare beneficiaries will receive assistance starting from the moment they buy their first prescription drug. There is no deductible and there is no gap in coverage, ensuring that no senior will be left stranded without the drugs they need. Beneficiaries would be responsible for copayments of $10 for generic drugs and $40 for medically necessary preferred brand name drugs until they have reached $4,000 of out-of-pocket spending, at which point Medicare pays all expenses. This bill provides low-income seniors and those with disabilities with extra assistance by covering the premiums and copays for those living below 135 percent of poverty, and giving premium assistance to those between 135 and 150 percent of poverty. In my State of Vermont, 28,000 of our 87,000 Medicare beneficiaries have incomes less than 150 percent of poverty and thus will qualify for this extra assistance available under the Graham-Miller proposal. This amendment will help our seniors get the drugs they need, no matter where they live, what their income, or how sick they are. I urge my colleagues to support this important measure that will put affordable prescription drugs within the grasp of some of our most vulnerable Americans.

Mr. LEAHY

Mr. LEAHY. Madam President, have the yeas and nays been ordered on the nomination?

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

Mr. LEAHY

Mr. LEAHY. Mr. President, I am very pleased to join with my Senate colleagues from Vermont and New York as we introduce the Lake Champlain Heritage Act of 2002. With this legislation, we will take an important step in recognizing the importance of the Lake Champlain Valley in the history of America. I want to thank Senator Jeffords and his staff for all the work they have put into this effort. I know that many hours have gone into the research, discussion and editing to get where we are today. I also want to thank Senators Clinton and Schumer who are our valuable New York partners in all things related to Lake Champlain. Over the July 4th recess, I was able to participate in the Lake Champlain Maritime Museum's opening of a new exhibit featuring artifacts recovered from the 1776 Revolutionary War Battle of Valcour. It was just 1 year ago that Senator Clinton and I were at the site of the Battle to take part in the recovery and beginning of the conservation process of those artifacts. The Valcour Bay Research Project followed the 1997 discovery of the missing American gunboat from the Battle. I bring this up because our purpose today as we introduce this legislation underscores to the rest of our Nation a message we Vermonters and New Yorkers have long proclaimed: the role of Lake Champlain in the cause of American independence cannot be overlooked. The evidence of the struggle for this strategic waterway from the days of Native American excursions, through the colonial rivalry between Britain and France, our War of Independence, until the end of the War of 1812, constantly surrounds those of us who make our homes in this Valley. This act is intended to advance the cultural heritage goals of ``Opportunities for Action,'' the comprehensive plan developed under the Lake Champlain Special Designation Act by the Lake Champlain Basin Program with broad public input and support as well as with the involvement of local, State and Federal Governments. We envision activities such as locally planned and managed heritage networks and programs, a management strategy for the Lake's underwater cultural resources and strengthening the links between cultural resources and economic development. This legislation will also help provide assistance as the 400th anniversary of Samuel De Champlain's arrival in the Valley is commemorated in 2009. Today, we are taking a significant step in helping all Americans better appreciate the full history of the Lake Champlain Valley which holds such an extensive collection of historic sites and artifacts. As Vermonters and New Yorkers the stewards of Lake Champlain, we have a serious responsibility to conserve this evidence for future generations. We believe that what we do here, how we manage the cultural heritage of the Valley, can contribute to the growing debate on how present generations can live and prosper on the same ground that we conserve as our natural and cultural heritage. Our Vermont and New York Champlain Valley communities share this heritage and have helped us develop a vision to enhance the conservation, interpretation and enjoyment of our shared history and to make it more readily available to residents and visitors alike. We can help revitalize local economies and promote heritage tourism as we improve the stewardship of the Valley's cultural legacy by making additional resources available to communities and organizations through the Lake Champlain Basin Program. I think it is most fitting that we have come here together to introduce this long-awaited bill, reasserting our partnership for Lake Champlain: Vermont and New York engaged in a cooperative effort to conserve, interpret, and honor our common heritage.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am very pleased to join with my Senate colleagues from Vermont and New York as we introduce the Lake Champlain Heritage Act of 2002. With this legislation, we will take an important step in recognizing the importance of the Lake Champlain Valley in the history of America. I want to thank Senator Jeffords and his staff for all the work they have put into this effort. I know that many hours have gone into the research, discussion and editing to get where we are today. I also want to thank Senators Clinton and Schumer who are our valuable New York partners in all things related to Lake Champlain. Over the July 4th recess, I was able to participate in the Lake Champlain Maritime Museum's opening of a new exhibit featuring artifacts recovered from the 1776 Revolutionary War Battle of Valcour. It was just 1 year ago that Senator Clinton and I were at the site of the Battle to take part in the recovery and beginning of the conservation process of those artifacts. The Valcour Bay Research Project followed the 1997 discovery of the missing American gunboat from the Battle. I bring this up because our purpose today as we introduce this legislation underscores to the rest of our Nation a message we Vermonters and New Yorkers have long proclaimed: the role of Lake Champlain in the cause of American independence cannot be overlooked. The evidence of the struggle for this strategic waterway from the days of Native American excursions, through the colonial rivalry between Britain and France, our War of Independence, until the end of the War of 1812, constantly surrounds those of us who make our homes in this Valley. This act is intended to advance the cultural heritage goals of ``Opportunities for Action,'' the comprehensive plan developed under the Lake Champlain Special Designation Act by the Lake Champlain Basin Program with broad public input and support as well as with the involvement of local, State and Federal Governments. We envision activities such as locally planned and managed heritage networks and programs, a management strategy for the Lake's underwater cultural resources and strengthening the links between cultural resources and economic development. This legislation will also help provide assistance as the 400th anniversary of Samuel De Champlain's arrival in the Valley is commemorated in 2009. Today, we are taking a significant step in helping all Americans better appreciate the full history of the Lake Champlain Valley which holds such an extensive collection of historic sites and artifacts. As Vermonters and New Yorkers the stewards of Lake Champlain, we have a serious responsibility to conserve this evidence for future generations. We believe that what we do here, how we manage the cultural heritage of the Valley, can contribute to the growing debate on how present generations can live and prosper on the same ground that we conserve as our natural and cultural heritage. Our Vermont and New York Champlain Valley communities share this heritage and have helped us develop a vision to enhance the conservation, interpretation and enjoyment of our shared history and to make it more readily available to residents and visitors alike. We can help revitalize local economies and promote heritage tourism as we improve the stewardship of the Valley's cultural legacy by making additional resources available to communities and organizations through the Lake Champlain Basin Program. I think it is most fitting that we have come here together to introduce this long-awaited bill, reasserting our partnership for Lake Champlain: Vermont and New York engaged in a cooperative effort to conserve, interpret, and honor our common heritage.