Carl Levin

Mr. LEVIN

Mr. LEVIN. Mr. President, I ask the time of the half hour allotted to this side be divided between myself and Senator Dodd and that I may proceed for 15 minutes.

Mr. LEVIN. Mr. President, what I wish the majority would be allowing tonight is consideration of legislation that addresses the loss of over 3 million jobs in this country during the last few years, most of them manufacturing jobs. What I wish the majority would be allowing us to do tonight is to consider legislation to extend the unemployment benefits to those Americans who have lost their jobs in this recession, the way we have extended unemployment benefits in previous downturns. Those needs of the American people and a dozen other needs are what we ought to be spending our time on tonight and every day until those issues, and many other critical issues, are addressed. Instead, those on the other side of the aisle decided to spend 30 hours rehashing the reasons that 4 out of the 172 of President Bush's judicial nominees have not been confirmed by the Senate. That is their right, but it is wrong. In my home State of Michigan, the unemployment rate is 7.4 percent. In fact, Michigan has lost and continues to lose more manufacturing jobs than almost any other State in the Nation. Mr. President, 2.5 million of the 3.3 million jobs which the U.S. economy has lost since January 1, 2001, were in manufacturing. We lost over 160,000 of those jobs in Michigan alone. Other States face large job losses, but what we should be doing is helping people who lost jobs, acting to stop the currency manipulation by China, Japan, and other countries, and the one-way street in trade which has been such a large part of the loss of jobs in this country. The first act of this Congress last January was to extend unemployment benefits through the end of this year because Congress did not act last year. That made the 2002 holiday season mighty grim for those workers whose benefits had expired. Current law provides 13 weeks of additional Federal aid to laid-off workers who have exhausted their 26 weeks of regular State benefits. However, this administration has shown no interest in either extending the deadline for the program or authorizing new benefits. The trust fund that is to be used for unemployment benefits currently has over $20 billion in it. Why this administration balks at extending unemployment benefits is beyond me since that is what the money in that fund is for. I, along with a number of our colleagues, propose we extend the December 31 deadline for another 6 months so newly unemployed workers can receive Federal assistance, but also making available an additional 13 weeks of Federal unemployment benefits for a total of 26 weeks. That is what we have done in prior recessions. We responded during the 1974 recession. Federal benefits were extended to 29 weeks. In the 1981 recession, Congress extended benefits to 26 weeks. In the 1990 recession, 26 weeks were provided, 33 weeks to States with high unemployment. While the unemployment numbers released last week were somewhat of an improvement, in terms of manufacturing jobs, that loss continues, and the long-term economic forecast continues to be pessimistic. On this track, this administration will be the first administration to lose private sector jobs since Herbert Hoover. In one moment I am going to propound a unanimous consent request that I know my Republican colleagues will want to hear, and I want to alert them of the fact I will be propounding that request in a moment. I hope our Republican colleagues will give us consent to take up unemployment insurance extension legislation this evening. Perhaps then this 30-hour exercise will be fruitful. I think I have alerted the Republicans that we would be making this unanimous consent request. Unanimous Consent Request--S. 1853 I ask unanimous consent that the Senate proceed to legislative session; that the Finance Committee be discharged from further consideration of S. 1853, which is a bill to extend unemployment insurance benefits for displaced workers; that the Senate proceed to its immediate consideration; that the bill be read a third time and passed; and that the motion to reconsider be laid on the table.

Mr. LEVIN. Mr. President, since the majority has now determined we will spend 30 hours of the time of the Senate rehashing 4 of the 172 judicial nominations that haven't been confirmed, I want to address what is an even deeper issue than the majority's effort to weaken and water down the role of the Senate in exercising its advice-and-consent responsibility. That even more fundamental issue is our Nation's historic and constitutional system of checks and balances. Those checks and balances are an integral part of the unique design of our founding document in restraining the potential excesses and extremes of the executive branch. We share the obligation and responsibility with the judicial branch. Our rules in the Senate are aimed at restraining the potential abuse of the rights of the minority by the majority within the legislative branch itself. In June of this year, Robert Caro, the eminent Pulitzer Prize winning historian and author of ``Master of the Senate,'' his great biography of former President and Senate majority leader Lyndon Johnson, wrote to our Senate Rules Committee addressing this subject and quoting from his book. Here is what he said: . . . in creating this new nation, its Founding Fathers, the Framers of its Constitution, gave its legislature . . . not only its own powers, specified and sweeping . . . but also the powers designed to make the Congress independent of the President and to restrain and act as a check on his authority, [including the] power to approve his appointments, even the appointments he made within his own Administration . . . and . . . the power to approve Presidential appointments was given to the Senate alone; a President could nominate and appoint ambassadors, Supreme Court Justices, and other officers of the United States, but only ``with the advice and consent of the Senate.'' Robert Caro goes on to say: The Framers wanted to check and restrain not only the people's rulers, but also the possibility that the majority will be used in Madison's words ``to oppress the minority.'' The Framers, he [Madison] said, established the Senate as the body ``first to protect the people against their rulers; secondly to protect the people against the transient impressions into which they themselves might be led . . . The use of the Senate is to consist in its proceeding with more coolness, with more system. . . . One of the historical tools for the protection of the minority which is developed in the Senate from its earliest days is the principle of extended debate. The exercise of this right of Senators, particularly when it is used to block actions which the majority fervently wishes to take, is embodied in our Senate rule that you must have a supermajority of 60 percent of the Senate on matters where there is strong opposition. Filibusters have played an important role in moderating action in the Senate. It is widely recognized the Senate is a less partisan place-- you may not be able to discern that tonight, but generally this is a less partisan place than the other body in our Congress or virtually any other democratically elected legislative body anywhere in the world. As Senator Byrd said in his series of scholarly addresses on the floor of the Senate about Senate history: Arguments against filibusters have largely centered around the principle that the majority should rule in a democratic society. The very existence of the Senate, however, embodies an equally valid tenet in American democracy: the principle that minorities have rights. Senator Byrd goes on to say in his study: The most important argument supporting extended debate in the Senate, and even the right to filibuster, is the system of checks and balances. The Senate operates as the balance wheel in that system, because it provides the greatest check against an all powerful executive through the privilege that Senators have to discuss without hindrance what they please for as long as they please . . . Without the potential for filibusters, that power to check a Senate majority or an imperial presidency would be destroyed. It is a power too sacred to be trifled with. Lyndon Baines Johnson said in 1949: . . . If I should have the opportunity to send into the countries behind the iron curtain one freedom and only one, I know what my choice would be . . . I would send those nations the right of unlimited debate in their legislative chambers. If we now, in haste and irritation, shut off this freedom, we shall be cutting off the most vital safeguard which minorities possess against the tyranny of momentary majorities. In May of 1994, when the Republican minority blocked Senator Clinton's nomination of Sam Brown to be ambassador, one of our Republican colleagues said the following: In considering the nomination of Mr. Samuel W. Brown to be the Ambassador to CSCE, I have reflected on the latitude which ought to be accorded the President in making this decision for the ambassadorship, reflecting as well on the constitutional responsibility of the Senate for advice and consent as a check. . . . . I am troubled by a situation where the only pressure point Republicans have in the U.S. Government is on cloture. Once cloture is obtained, there are more than enough votes on the other side of the aisle to cover the day. While the House is not involved in this matter, the House is overwhelmingly Democratic; there is a Democrat in the White House. The only place Republicans can assert any effective, decisive action is by stopping somebody from coming up. We have 44 votes, and we have more than enough, if there is unity among the Republicans, to do that. I think Mr. Brown's nomination and the responsibilities at the Conference on Security and Cooperation in Europe are sufficiently important to preclude his nomination. The filibuster succeeded in blocking this nomination. There are many reasons to at least consider modification to the Senate rules regarding the procedures for ending debate, the process we call cloture. Those rules have been modified a number of times before, but one of the reasons to consider modifying our rules is not the reason which is motivating our current majority in the Senate: irritation with the fact that only 98 percent of President Bush's judicial nominees have been confirmed by the Senate. That irritation that a substantial minority of Senators would stand in the way of getting their way 100 percent of the time has led to this 30-hour talkathon and their apparent desire to amend the Senate rules to let them get their way 100 percent of the time. We find ourselves tonight debating not whether unemployment insurance should be extended for Americans who have lost their jobs, not how to create more jobs in our economy, not how to better provide for the education of our children, or to strengthen our homeland security, or reduce the cost and increase the availability of prescription drugs, but, rather, listening to the re-argument of the case for the 4 nominees out of 172 nominees the Senate has not confirmed. They want a 100 percent confirmation success record, and they appear to be willing to throw over the very essence of the Senate and its check-and-balance role to accomplish it. The Constitution says the President shall nominate, and, by and with the consent of the Senate, shall appoint ambassadors and judges. William Maclay, one of the first two Senators from Pennsylvania, wrote the following: Whoever attends strictly to the Constitution of the United States will readily observe that the part assigned to the Senate was an important one, no less than that of being the great check, the regulator and corrector, or, if I may so speak, the balance of this Government. . . . . The approbation of the Senate was certainly meant to guard against the mistakes of the President in his appointments to office [and] the depriving power should be the same as the appointing power. I thank the Chair, and I yield the floor to my friend from Connecticut.

Mr. LEVIN

Mr. LEVIN. Madam President, I ask unanimous consent that the Senator from Arkansas be recognized for 2 minutes immediately prior to the vote. Order of Procedure

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

Mr. LEVIN. Madam President, I thank our dear friend, Mark Pryor. Senator Warner and I came together and we came with his father at the same time. His dad and his mother, Barbara, have been dear friends of ours. Mark Pryor has made an extraordinary contribution as a new Senator to this body and to our Armed Services Committee. He has made a great contribution. We are grateful for that and for his remarks this afternoon. Mr. President, I rise once again to join with Senator Warner in urging the Senate to adopt the conference report on H.R. 1588, the National Defense Authorization Act for fiscal year 2004. As we stand on the floor of the Senate today, America's armed forces are engaged in military operations around the world on a scale unknown since the end of the Vietnam war nearly three decades ago. According to the latest reports, we have 132,000 troops deployed in Iraq with an additional 87,000 serving in support roles outside of Iraq. We have 9,000 troops in Afghanistan, with an additional 35,000 serving in support roles. Tens of thousands more soldiers, sailors airmen and marines are deployed elsewhere around the world. In the last 2 years, we have also seen the largest sustained callups of National Guard and Reserve components since the Vietnam war. We have seen units deployed for extended periods, and repeated deployments of the same units. Throughout this period, our men and women in uniform have shown extraordinary ability, professionalism, and dedication, conclusively demonstrating once again that they are by far the best trained, best equipped, best disciplined, most highly skilled and motivated military force in the world. Nonetheless, there are indications that the unprecedented demands we have been placing on our Armed Forces are starting to have an impact on morale. I will vote for this conference report because it contains so many important provisions for our national security and for our men and women in uniform. It includes an across-the-board military pay increase, along with a series of other increased pays and benefits for our men and women in uniform and their families. The conference report includes Senator Harry Reid's amendment on concurrent receipt; Senator Daschle's amendment on TRICARE; Senator Kennedy's amendment on expedited citizenship for lawful immigrants serving in the military; and an increase in Army troop strength on which Senator Jack Reed played a leading role. It includes important Senate provisions that authorize an expansion of our cooperative threat reduction programs to countries outside the former Soviet Union. The provision authorizing the establishment of a new National Security Personnel System did not come out entirely the way I would have liked, but the Senate was able to include a number of important protections for civilian employees at the Department of Defense. Senator Collins' strong commitment to a bipartisan, fair, and balanced approach to this issue made this a far better provision than it would otherwise have been. The conference report contains a number of other provisions that concern me. For example, I believe that provisions addressing the Endangered Species Act and the Marine Mammal Protection Act go beyond what is needed to address the legitimate needs of the Department of Defense. I am also disappointed by the outcome of the conference on nuclear weapons issues, which take the United States in a dangerous new direction. Despite my concerns about these issues, I will vote for this conference report because it contains so many other provisions that are so important for our national defense and for our men and women in uniform. I urge my colleagues to join me in supporting this conference report, which will help provide our military the training and equipment that they need and the compensation and benefits that they deserve. Thanks again to Senator Warner and both our staffs, who we specifically thanked last night for all their work which made this conference report possible.

Mr. LEVIN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. LEVIN. Madam President, I thank Senator Inhofe also for his service, his work on the committee. He travels to visit with our troops. He is totally dedicated to our troops and the national defense. I thank him for his kind words, but also for that commitment. Section 336

Mr. LEVIN

Mr. LEVIN. I thank the Chair and thank my colleagues. I am happy to share with them the feeling that somehow or another hopefully we can find a way some day to get over the place we are at, not just on judges but on all of these nominees. I look forward to that Supreme Court case which my friends are going to file. I think it would be just fine to have the Supreme Court rule on this issue to clear the air on it. I have great confidence that they will support the right of the Senate.

Mr. LEVIN. I yield the floor.

Mr. LEVIN. Mr. President, how I wish we could take a week's worth of time to debate the issues which are of some critical importance to the people of my State; namely, the loss of manufacturing jobs and the problems we have in Iraq. These issues, the economy in general, job loss in particular, and loss of our troops abroad dominate the minds and the hearts of my constituents. But the majority has the power to take the Senate on a fruitless cruise. That is what we are about: rehashing the merits and demerits of 4 of the 172 candidates who we have voted on in this Senate. I know these numbers are numbers which are very troubling to the majority. I can tell that by the fact they have attempted to come back with a whole bunch of other numbers. When this debate is over, when the dust is settled, what I think most people will remember, at least in terms of the calls to my office, is, Is this Senate being tied up, night after night, with complaints that 4 of 172 judges have not been confirmed. Mr. President, 168 is a number now which is impressed on the minds of people who have watched this debate and heard this debate. The number four is a number which people now understand. Maybe the 98 percent confirmation rate is not quite at the same level as these 2 numbers, but those numbers--168 of President Bush's nominees confirmed by this Senate, 4 have not been confirmed by this Senate--those 2 numbers are very much emblazoned in the minds of people across this country. In rejecting these four, the Senate has exercised its advise and consent function according to our rules. It has carried out the checks and balances role according to the Constitution that gives us a check and a balance, according to the rules of the Senate. I want to go back a little bit in history. We have heard quite a bit tonight that this is the first time a filibuster has been used against a judge on the floor of the Senate. I will get into this in a little more detail. I hope to have a little time to talk about the economy and manufacturing job loss, and other things which are very much on the minds of my constituents. But since the majority has decided to set aside this time, mainly to debate the fact that only 98 percent of the judges who have come before us have been confirmed, and have now suggested, over and over and over again, that filibusters have never been used relative to judges, this is the New York Times headline of September 25, 1968 relative to Abe Fortas: ``Critics Of Fortas Begin Filibuster. . . .'' This is what the Senate Web site says about that filibuster. This is not a Democratic Web site. This is the Senate Web site for the date October 1, 1968: ``Filibuster Derails Supreme Court Appointment.'' That is a Senate Web site. Folks on the other side, our colleagues on the other side, are saying: Well, what about circuit court nominees? We sometimes hear those words put in there when the statement is made that filibusters have not been used to derail judicial nominees. Sometimes the words ``circuit court nominees'' are put in there instead of ``judicial nominees,'' sometimes the words ``circuit court'' are left out, sometimes they are included. If circuit court nominees have not been derailed by filibuster, it is not for a lack of trying. The complaint of our colleagues on the Republican side, it seems to me, more accurately would be: Well, we have tried filibusters many times, but we have not succeeded. You folks are succeeding. That is the complaint when you strip away the rhetoric and look at the reality. If filibusters have not succeeded in derailing circuit court nominees of Democratic Presidents by Republican Senators, it is not for lack of trying. Because the effort was made over and over and over again with Clinton circuit court nominees. The difference is, the filibuster effort did not succeed because the supermajority, which was required during those filibusters, was achieved for those circuit court nominees. That is the difference. This is not at all unprecedented. This use of extended debate requiring a cloture vote on judicial nominees has been used repeatedly. It has not succeeded repeatedly, but it has been used repeatedly. One of our Republican colleagues, during a debate on a nominee--this is not a judicial nominee, but this is a nominee which is subject to this exact same language of the Constitution about advise and consent as our judicial nominees are--when a Clinton nominee to be Ambassador was before us, and there was a filibuster underway and that nomination was blocked, this is what one of our colleagues said. Now this was in 1994, and the Senate was controlled by Democrats. The White House was controlled by Democrats. The House of Representatives was still controlled by Democrats. Our Republican colleague here in the Senate was pointing out the only power that was left to Republicans was the use of a filibuster and forcing a cloture vote. And I emphasize, this is on a nominee who had exactly the same rights or lack thereof to an up-or-down vote as a judicial nominee because the nomination is governed by the same advise and consent clause of the Constitution as our judicial nominees. Here is what our colleague said: In considering the nomination of Mr. Samuel Brown to be Ambassador . . . I have reflected on the latitude which ought to be accorded the President in making this decision for the Ambassadorship, reflecting as well on the constitutional responsibility of the Senate for advice and consent as a check. I am troubled by a situation where the only pressure point Republicans have in the U.S. Government is on cloture. Once cloture is obtained, there are more than enough votes on the other side of the aisle to cover the day. While the House is not involved in this matter, the House is overwhelmingly Democratic. There is a Democrat in the White House. The only place that Republicans can assert any effective, decisive action is by stopping somebody from coming up. We have 44 votes and we have more than enough, if there is unity among the Republicans, to do that. I think Mr. Brown's nomination and the responsibilities of the Conference on Security and Cooperation in Europe are sufficiently important to preclude his nomination. That is what our Republican colleague said in 1994: The only place that Republicans can assert any effective, decisive action is by stopping somebody from coming up. We have 44 votes. That has been the case not just with ambassadorial nominations but with other nominations subject to the advice and consent clause. The only difference with the circuit court nominees of President Clinton, for instance, who were filibustered is that there was not a supermajority to stop the confirmation of the judges. That is not a distinction which I would think the Republicans in this debate would want to emphasize, but it is a distinction in fact. Mr. President, 168 of this President's nominees have passed the test; 4 have not. When the filibuster has been used relative to those four, the rules of the Senate which provide for that to occur, and there was not a supermajority, then those nominees have not been confirmed. What is at stake here is the functioning of the Senate as a check and a balance on executive power. Our Republican colleague who spoke that way in 1994 was exactly right. He was using the rules of the Senate in a totally appropriate way and saying that the only way we can stop this, the only way the minority has a voice, if we feel so deeply that there are 41 or more of us who wish to stop this nominee from being confirmed, we must use the filibuster, and we must force a cloture vote. Checks and balances are what are at stake here. The historic role of the Senate is what is at stake here. Then-Senator Lyndon Johnson, in March of 1949, said the following relative to these checks and balances: A man elevated to the Office of the President has virtually unlimited powers of influence over his country. His own personality is a force of great impact upon all the people of the Nation and, in fact, upon the people of the world. Add to those powers directly all those less conspicuous powers of his aides, his administrative agencies and the multitude of channels which feel his influence, and you have a force no other representative government has even trusted for long to one man. If on occasion you grant to this titular head of government the further intoxicant of an overwhelming majority of loyal supporters in the legislative branch, then you have a force well nigh irresistible. The distinctions between legislative and executive are difficult to preserve under such circumstances. Mere memorandums become laws and laws become mere memorandums. In such a situation, which happily is more hypothetical than historical, the entire theory of our Government system of checks and balances dissolves and evaporates. The right to check and balance was not granted to the majority because a majority rarely seeks control over itself. Those rights were conceived and installed in the Constitution solely as safeguards for the minority. He said: I am no historian, but as I have studied the history of governments gone before us, I have been impressed by the fact that the freedom of unlimited debate in legislative chambers has been given up many times by members themselves who are irritated or frustrated by a minority. But so far as I have found, once that freedom was yielded, it has never been returned. If we now give up this freedom in the Senate, I, for one, do not expect to live to see its return. Much has been stated here about filibusters on the floor of the Senate. Too little has been said about stealth filibusters which occur in committee. Political scientist Sheldon Goldman of the University of Massachusetts, who is a neutral observer of the process, said the following in a Los Angeles Times article on November 6: The Bush administration has been spectacularly successful in getting the overwhelming proportion of its judicial nominations confirmed. There are only a relative handful being filibustered and held up, and this contrasts with the dozens of Clinton nominees who were held up by the Republicans in the last 6 years of the Clinton administration. Professor Goldman expressed it this way: The Republicans obstructed quietly in the committee. If they didn't want to approve you, you just didn't get a hearing. Here is one example. Kent Markus was nominated by President Clinton for a seat on the Sixth Circuit. He testified to the Senate Judiciary Committee on May 9, 2002, as follows. To their credit, Republican Senators told him two things. There will be no more confirmations to the Sixth Circuit for the Clinton administration. Two: 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. Mr. Markus went on to testify that one Republican Senator told him the following: This is bigger than you, and this is bigger than me. Senator Kohl, who kindly championed his nomination in the Judiciary Committee, encountered a brick wall. 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. That is what happened. That is exactly what happened to Kent Markus and his nomination. A hearing was denied to him. A vote was denied to him. And if there is some constitutional right which is being created here on the floor, I assume Kent Markus was denied his constitutional right to a vote, as were the dozens of other nominees of President Clinton who never got a hearing, much less a vote. I can't believe for one minute that any court, even if it reaches the merits of this case that is going to be brought, would say there is a constitutional right to have your nomination voted on when there are so many ways of blocking a nomination from getting a vote, starting with not having a hearing, starting with not having a markup, starting with not reporting a nomination to the floor, starting on the floor not reaching a vote up or down. When the Republican Senate denied committee hearings and votes for 63 judicial nominees and more than 200 executive branch nominees, they blocked a vote on those nominations. That was their right. They may have done the wrong thing in doing so, but they had a right to do so. I wish they hadn't. I wish they had allowed those to come to hearings. At least have a cloture vote, if nothing else, on the floor, but that was not to be. There are a lot of ways you can have a vote on this floor. One of them is a cloture vote and one of them is a vote up or down. But these 63 judicial nominees never even got to a cloture vote, never even got to see if there could be a supermajority put together for them under our rules on the Senate floor. It is remarkable to me that our colleagues on the other side of the aisle make the claim that blocking nominees from having an up-or-down vote on the Senate floor is unprecedented, given the actions during the last administration. Republicans filibustered several Clinton nominees on the floor of the Senate, including Richard Paez, Marsha Berzon, Rosemary Barkett, and H. Lee Sarokin. Cloture votes requiring supermajorities were required to be produced for each of them. Our colleagues say these nominees were not blocked by a filibuster, which is an artful way of saying that the effort at the filibuster failed. That is very different from saying that the filibuster was not tried. It was. Cloture votes were required but supermajorities were obtained. That is the difference between those Clinton nominees and these four nominees. Here supermajorities have not been obtained. Therein lies the difference. Same cloture votes, same type of cloture votes required, but cloture was invoked for Berzon, Barkett, Paez, and Sarokin. Supermajorities supported those nominations, and the opposition had a right to force those votes. That required a supermajority. They had a right to filibuster, and, in fact, did so. Two of President Clinton's nominees, not judicial but nominees, still governed by that same advice and consent clause in the Constitution, were defeated by filibusters. One was Henry Foster nominated to be Surgeon General, and the other one was Sam Brown nominated to be ambassador. The argument relative to that nomination was quoted by me at some length a few moments ago where a Republican colleague within his rights using the rules said: We have only to put together 41 Republican Senators and we can block this nomination. It is the only way to block a nomination with which we fervently disagree. Given the fact that the Democrats didn't control the White House, the Democrats controlled the Senate, our Republican colleague pointed out accurately that the only way to block that nominee was by use of the filibuster. Were his constitutional rights violated? I don't think so. I think he was given consideration by the Senate in the way that the Senate decides to consider nominees, and it can consider nominees in many ways. It can decide never even to give a nominee a hearing should it choose. I don't think that is a wise course, in most cases, but should the Senate choose not to give a nominee of the President a hearing, that is the Senate's decision. Or after a hearing, if it decides not to have a markup to vote that nominee either out of committee or to defeat that nominee, that is the Senate's decision. Should a chairman, acting alone, decide not to put a name on a markup, that may be that chairman's power. So the suggestion that requiring a supermajority vote by filibuster is new to the Senate is just simply wrong. We can argue--legitimately argue--and disagree over whether or not the Senate should give up this important check and balance on Presidential power, but we cannot argue, it seems to me, that it is unprecedented in its exercise. Here are the words of one more of our colleagues during a filibuster of a Clinton nominee on March 3, 2000. During the filibuster of the nomination of Judge Richard Paez to the Ninth Circuit, this is what our colleague said: I say to the American people who may be listening right now, judges impact our lives big time in the decisions they make. Citizens complain about violence and the criminals getting out. There are bad judges making bad decisions that cost Americans their liberties, cost them their lives sometimes. That is wrong. We have an obligation in the Senate to take a good hard look at a lifetime appointment to the circuit. The members are there forever, even when they get real old. It is pretty hard to get rid of them. This is a lifetime appointment. We have a responsibility to make darn sure these judges are going to represent the views of a majority of the American people in terms of the law. I intend to do that as long as I can stand here to do it. He didn't have 39 others or 40 others to stand with him. As a result of that, there was a supermajority for that judge, but it was despite the filibuster. It wasn't that there was no filibuster. It was despite the filibuster which the Republicans had a right to stage and did stage. But most Republicans decided, or at least enough Republicans decided not to continue that filibuster but, rather, to invoke cloture. To suggest the filibuster has never been used flies right in the face of history and recent history, as well as the history of Abe Fortas. Historian Robert Caro wrote the Rules Committee of this Senate as follows: In short, two centuries of history rebut any suggestion that either the language or the intent of the Constitution prohibits or counsels against the use of extended debate to resist Presidential authority. To the contrary, the Nation's Founders depended on the Senate's members to stand up to a popular and powerful President. In the case of judicial appointments, the Founders specifically mandated the Senate to play an active role, providing both advice and consent to the President. That shared authority was basic to the balance of powers among the branches. He continued: Surrendering such authority is not something which should be done just because of a Senator's point of view on the particular issue of the moment--because much more than the particular issue is involved. What if a Senator--let us say a Senator from a small population state without any other means of defense votes to support a new limitation on debate today. What will he [or she] do in some future year when he is trying to stop a bill or a nomination that a bare majority of the Senate supports, but that he and 40 colleagues believe would be terribly detrimental to their states or to the nation. . . . What will he feel when he suddenly realizes that his right to hold the Senate floor against that action has been so greatly reduced that the bare majority can silence him before he is finished making his case? What will he do when he realizes that, without the right of extended debate his cause is ultimately helpless? Finally, I ask unanimous consent that the letter from Senator Corzine, which has been referred to, apparently a fundraising letter, be printed in the Record in full because I think the words which were quoted by my friend on the other side had some very critical dots in there, and I think the dots should not have been there. The two sentences should not have been pushed together as though they were one. The document of Senator Corzine says the following: Senate Democrats have launched an unprecedented effort to protect the rights of all Americans by keeping our courts fair and impartial. That is the unprecedented effort. The next sentence is: By mounting filibusters against the Bush Administration's most radical nominees, Senate Democrats have led the effort to save our courts. The suggestion that the words read ``an unprecedented effort to mount filibusters'' is not an accurate reflection of that letter. The dots which were in the chart, it seems to me, take the place of some very critical words making two sentences look as though it is one sentence. I ask unanimous consent, just so we can have full disclosure of this letter, that this letter be printed in the Record.

Mr. LEVIN. Mr. President, how much time do I have remaining?

Mr. LEVIN

Mr. LEVIN. If Senator Allard would yield for 15 additional seconds.

Mr. LEVIN. While the chairman is on that point, Mr. President, I understand there will be two more Senators in addition to me on this side tonight who will have remarks on the bill.

Mr. LEVIN. We are going to check with Senator Nelson at this point to see what his intention is. We believe Senator Bill Nelson wants to come tonight. Whether it is morning business or the bill, that should not be consequential although perhaps for some reason it might be. I want to finish my remarks also. Senator Pryor we want to accommodate in the morning, as we have spoken about. Perhaps we can work all this out as Senator Akaka has the floor.

Mr. LEVIN. And perhaps Senator Nelson.

Mr. LEVIN. Senator Byrd is here and has been waiting. I want to see if we can figure out how to accommodate also Senator Dayton, I believe, tonight.

Mr. LEVIN. I commend the Senator from Delaware. His leadership on this issue is what really led to the result which was achieved, which he so accurately described. We have taken a logical step. The House approach to it was surely the lift that was needed, but the Senator from Delaware added a great deal to it and brought to our attention repeatedly this issue. I am glad the result is as satisfactory as it is.

Mr. LEVIN. I think we all appreciate that accommodation. I ask that accommodation be made without taking time away from the Senator from Colorado.

Mr. LEVIN. Madam President, I ask the chairman if it might be all right, and Members of his side, as well as other Members on this side, if I give my remarks--they are fairly lengthy--and if I proceed for 5 or 10 minutes and then yield to Senator Jeffords for his comments.

Mr. LEVIN. I may actually be lengthier than the chairman. First, I thank the chairman for his brevity. I would then be happy before I complete my remarks to yield to other Senators who may be waiting. Since I will be here all the time, I can complete my remarks. I am pleased to join the chairman of the Armed Services Committee, and my dear friend, Senator Warner, in urging the adoption of this conference report. The conference on this bill took 147 days to conclude, making it the longest conference on a defense authorization bill in the history of our committee. The agreement would not have been possible without the strength and the perseverance of Senator Warner. This is a historic bill for another reason as well. This conference report includes two key Senate provisions that serve the fundamental needs of the men and women upon whom we now call and upon whom we have called in the past to fight our Nation's wars. These two provisions are the concurrent receipt provision added by the amendment of Senator Harry Reid on the Senate floor and the TRICARE provision added by the amendment of Senator Daschle on the Senate floor. Senator Warner's strong support was instrumental to the success on both of these issues. They simply could not have been achieved without the support of our chairman. On concurrent receipt, the conference report would phase in full concurrent receipt of military retiree pay and veterans disability compensation for all retirees with disability ratings of 50 percent or greater. Currently, military retirees who receive VA disability compensation have their military retired pay offset by the amount of their VA disability compensation. The conference report would also expand the combat-related special compensation we enacted last year to reimburse all veterans for combat-related disabilities for any retired pay forfeited because of the prohibition on concurrent receipt. I continue to believe it is unfair to require our disabled military retirees to forfeit earned retired pay in order to receive VA compensation for their service-connected disabilities. According to the Congressional Budget Office, the conference provision on concurrent receipt will benefit approximately 225,000 disabled retirees. On TRICARE, the conference report would provide enhanced access to health care for members of the Guard and Reserve and their families, including TRICARE coverage that begins upon notification that a member of the Reserve component has been activated, TRICARE coverage that extends 6 months after release from active duty, and extended TRICARE benefits on a cost-share basis for members of the Reserve components and their families who do not have access to other health insurance coverage. The citizen soldiers of our Guard and Reserve willingly place themselves in harm's way for their country. This is the least we can do to recognize their courage and their patriotism. These two provisions address the fundamental needs of the men and women whom we now call upon and we called upon in the past to serve our country in uniform. They have something else in common, as well. Both of these provisions were included in the conference report despite the veto threat from the administration. On July 8th, the Secretary of Defense wrote to the conferees to state that providing these vital benefits to our veterans and to our Guard and Reserve would ``drain resources from important programs benefiting our military.'' The Secretary's letter stated if the President is presented with a bill ``authorizing concurrent receipt of military retirement pay and veterans disability compensation benefits or expands TRICARE, then I would join other senior advisers to the President in recommending that he veto the bill.'' As a matter of fact, as many will remember, the administration held up the enactment of last year's Defense authorization bill for several months and nearly stymied the bill because of the administration's opposition to concurrent receipt proposals similar to the language included in this year's bill. The conference report before the Senate today contains both of these Senate provisions. This year, as last year, Senate conferees stood up for what they believed in despite the opposition of the administration. This year, as last year, we stood with America's disabled veterans, we stood with America's Guard and Reserve. Unlike last year, the House conferees agreed to go along with us. It was the right decision. I do not believe the President would have vetoed our conference report over these issues last year and I am confident he will not do so this year. Again, I pay my respects to the chairman of our committee, because even though, as always, he is generous in giving credit to others for provisions in the bill, including his reference to Senator Reid which he accurately made, without his leadership these provisions simply would not be in this conference report. All of our veterans and all the men and women in our military are and should be in his debt for his leadership in this and so many other ways. This bill contains a number of other important provisions for our men and women in uniform. These include provisions that would increase military pay by 3.7 percent across the board, with targeted pay raises for midcareer personnel, raising the average increase to 4.1 percent. It extends increased imminent danger pay and family separation allowances, authorizing a high tempo allowance of up to $1,000 per month for active and Reserve personnel who experience unusually high tempo. It doubles the death benefit to $12,000. It authorizes survival benefit plan annuities for surviving spouses of Guard and Reserve personnel who die during inactive duty training. It removes skill requirement limitations for reenlistment bonuses for members who reenlist in Afghanistan, Iraq, or Kuwait. It authorizes full replacement for household goods lost or damaged during military moves. It expands commissary use privileges for Guard and Reserve members and their families. It provides supplemental impact aid to assist schools with large numbers of children of military families. I am pleased the bill would increase authorized active duty end strength for the Army. Madam President, I now ask unanimous consent that I be able to yield to our good friend from Vermont, and then I would offer others the opportunity to follow him if they wish. I can complete my statement at a later time.

Mr. LEVIN. Mr. President, let me join Senator Warner in thanking Senator Dayton, first for the very overly generous comments he made at the beginning of his remarks. They are obviously very warm and very much appreciated. The references he made to the former colleagues of ours are particularly important personally to both Senator Warner and to me, and we are very grateful for them. Senator Dayton has brought to our committee and to this body a very great passion, not just for Minnesota--although Lord knows that passion is there for issues that affect Minnesota, including his Guard and Reserve that are so close to his heart--but also the defense issues that affect every citizen of this Nation. Perhaps typical of him was the way in which he identified, with a number of other colleagues, a problem for the service men and women who are coming back on leave from Iraq and who are dropped off at Baltimore Airport and have no way to get to their homes. Senator Dayton joined a few others in this body to make sure in that supplemental appropriation we would get them home, not just to our shores but to their own personal homes. That is the kind of personal approach he takes toward issues, a combination of great passion and tenacity and forthrightness and directness and guts and courage, taking on a lot of tough issues, but also a very personal approach. We are very glad he is on the Armed Services Committee and grateful for the contribution he makes to our committee. If the chairman has no other matter, I thought what I would do is very briefly continue with a few comments. I began a rather lengthy statement I was going to make about the Defense authorization bill, and I have a few additional comments. Where I left off a couple hours ago was making reference to the fact we increased the Active Duty end strength of the Army in this bill by 2,400. That is a small number, given the demands we are placing on our troops, but at least it gets us on the right road. Senator Jack Reed worked hard for this increase. Senator Warner and I in conference did the best we could, given the circumstances we faced and the limits we had to deal with. But Senator Reed was determined we would do what it is clear to all of us we must do and consider more of, which is to take a look at the huge demand we are placing on our troops, take a look at the sustained callups of our National Guard and Reserve components since the Vietnam war. We now are watching them more and more deployed for extended periods and repeated deployments of the same Guard and Reserve units. We have to address this issue. There are many ways to do it, but one of them is to take a look at increasing the end strength of our Active-Duty people. We decided we would start this year with the Army where the greatest crunch has been felt. That 2,400 personnel increase authorized by this bill again is a relatively small increase given the demands on our troops, but it is an important statement of where this committee is. We are also pleased the conference report includes a proposal which Senator Kennedy and others were very instrumental in proposing which would serve to expedite the naturalization of lawful permanent residents serving in the military, and their families. These are men and women in uniform who willingly put their lives at risk to preserve our freedoms. They deserve nothing less than full participation in those freedoms as citizens. The expedited and naturalization of lawful permanent residents who do serve in the military, and also for their families, has been championed by Senator Kennedy and a number of other colleagues of ours. That provision is in our bill. This conference report also addresses the Air Force proposal to lease, rather than buy, 100 new tanker aircraft. The Senate Armed Services Committee spent many hours trying to gauge the severity of the problems with the existing Air Force tanker fleet and the urgency of the requirement to replace those aircraft. In my view, the Air Force was deficient in the case they tried to make that there is an imminent risk to the fleet, but the Air Force did show a long-term requirement for tankers that will ultimately require the fielding of replacement aircraft. At the same time, the Government Accounting Office, the Congressional Budget Office, and the Congressional Research Service all raised serious questions about whether the lease proposal presented by the Air Force was in the best interest of the taxpayers. According to these independent analyses, the tanker lease proposal was likely to cost the taxpayers as much as $5 billion more than a traditional purchase of the same aircraft on the same schedule. After considering these issues, Senator Warner put forward an alternative approach under which the Air Force would lease 20 tanker aircraft and purchase the remaining 80 aircraft contemplated in the original lease agreement. I supported this creative approach. It would reduce the acquisition cost for aircraft by more than $4 billion dollars, while allowing the Air Force to acquire the full 100 aircraft that they say they need. In order to help the Air Force with its funding problems, we agreed to authorize incremental funding of the 80 aircraft purchase, so that the Air Force can budget for aircraft construction costs in the year the costs are incurred, rather than obtaining full budget authority at the time the order is placed. Incremental funding is not generally a good idea, but it is a significant improvement over the lease approach originally proposed by the Air Force in this case. I want to specifically point out the very creative role of Senator Warner in coming up with a solution which I was proud to support. This is his creative solution to a real problem. We have a need for new aircraft. The problem is the resources were not there for them. The right way to do this is purchase, not lease. We did the best we could to make it clear at the same time we acquire these aircraft, we want to do it with minimum damage to the usual procurement rules which require a purchase rather than a lease of equipment of this kind. I was also pleased the conference report includes a Senate provision authorizing the expansion of the cooperative threat reduction program of the Department of Defense and the nonproliferation programs at the Department of Energy, outside of the former Soviet Union. That was the change we were able to make. This is the basically flowering of the Nunn-Lugar program. Senator Lugar, of course, who is still in this body, is the one who has promoted and prodded and pressed us to do this. He has been absolutely right on this program. They have proven to be important tools in helping to reduce the proliferation risk from nuclear, chemical, and biological materials in the former Soviet Union. We give the President the authority which the President requested to continue the destruction of chemical weapons in Russia. It fully funds CTR programs. But at the request of the administration, with full support of Senator Lugar, who really was a leader in this, and the full support of our chairman and our committee, we have now for the first time, using the authorities in the agreement, allowed the President to use these cooperative threat reduction funds from the Department of Energy Materials Protection and Control Program to meet emerging threats in other parts of the world. It is no longer limited now to the former Soviet Union. Again, Senator Warner's total support of this change was instrumental in making it happen.

Mr. LEVIN. Madam President, if the chairman will yield on that point.

Mr. LEVIN. My recollection is that on the Senate floor we did add a significant protection, a criteria before the Endangered Species Act would be ignored. That was under the Lautenberg amendment that we would require there be a conservation benefit provided as well as adequate funding provided if the Department of Defense was going to proceed. The Senator from Vermont's recollection relative to the committee perhaps refers to what we did on the Senate floor, which he also referred to in his remarks, where we did add important protection that was missing when the bill came to the floor, but a very close vote on the floor added that protection.

Mr. LEVIN

Mr. LEVIN. Mr. President, this year, as we again remember our veterans and the sacrifices they have made for our country on this 11th day of the 11th month, the men and women serving in our Armed Forces deserve special recognition. This year's remembrance is a unique time as we honor new veterans coming home from the battlefields of Afghanistan and Iraq who have made the sacrifice and have answered the call. Our appreciation and gratitude extends to all of them and their families for the sacrifices that they have made. As of last week, 395 American service members have been killed and 1,889 American service members have been wounded during Operation Iraqi Freedom. Our thoughts and prayers are with them and their families. We pray for the safety of those still in harm's way and hope they return home soon. I visited some of our servicemen and women at Walter Reed Army Medical Center here in Washington, DC recuperating from wounds they received in Iraq. Some of them had lost limbs, and face significant physical challenges in building a new life. As I expressed my appreciation to them for their sacrifices, I was humbled and inspired by their high spirits, their determination and their abiding faith in our country. November 11th--the day World War I ended in 1917--has been a distinguished day of recognition for America's veterans since 1954 when President Dwight Eisenhower signed into law the day that would honor the men and women who have served in our Nation's Armed Forces. Since the founding of our country, almost 50 million men and women have served in the United States military, and nearly half of them are still alive. So today, there are appropriate ceremonies at Arlington National Cemetery, throughout Michigan and the rest of the country to honor our veterans and what their service has meant to our country. I would also like to recognize the African-American men and women who in years past served our Nation's Armed Forces in primarily segregated units. While segregation in our Armed Forces is a shameful chapter in our Nation's past, these veterans should be uniquely recognized for their honorable service in the face of the burden of segregation. African-American soldiers overcame a patten of prejudice that questioned their ability and prevented them from training and working with their white counterparts. Segregated African-American units have played an important and powerful role in America's military, from the Civil War's 54th Regiment of the Massachusetts Volunteer Infantry, to the Indian War's Buffalo Soldiers of the 9th and 10th Cavalry to World War II's Tuskegee Airmen. Four hundred thousand African-American troops served the United States in World War I and a million African Americans served in World War II's segregated services. We should acknowledge their commitment which went beyond normal service and the call to duty. I am pleased that this past weekend, a special celebration of our African-American veterans took place in my home State of Michigan at the Color of Liberty Celebration at the Wayne County Armory. I would also like to take a moment to stress the importance of the Federal Government meeting its obligations to all veterans to provide appropriate and adequate health care. There is a commitment by the appropriate committees to add an additional $1.3 billion for veterans health care before Congress adjourns this year. Right now, 60,000 veterans are waiting 6 months or longer for an appointment at VA hospitals. I am hopeful that Congress will fulfill our commitments to our veterans so that they have a strong VA health care system that is well-funded and suitably staffed. The terrorist attacks of September 11th and the courageous actions of our armed forces in Afghanistan and Iraq remind us that friends of tyranny and enemies of freedom still exist. Whether they are soldiers, sailors, airmen and marines who fought in the World Wars, Korea, Vietnam or the Gulf wars, we thank them for their service, their commitment and their sacrifice in the cause of America's freedom.