Rick Santorum

Mr. SANTORUM

Mr. SANTORUM. Mr. President, before I resume debate on the judicial nominations, all this talk about not having done work on the economy ignores the fact this Senate early this year passed a jobs and growth package that is working--7.2 percent growth in the last quarter. A lot of people, maybe some, may be upset we are having great economic growth and 300,000 jobs have been created. As this chart shows, we are now in the most jobs in the history of America, 138 million people. See the signs of doom and gloom and 6 percent unemployment that 10 years ago would have been full employment, we are at that level now. The idea we are going to hell in a hand basket with the economy, some may wish that to be the case for political purposes, but it just is not. It is not a fact. The facts are this economy is growing. Sure, we have more to do. That is why we have the jobs and growth package we are trying to push through having to do with litigation reform, which is being blocked by the other side of the aisle. On several fronts, whether it is medical lawsuit abuse, whether it is class action reform--which we lost on the floor of the Senate by one single vote--whether it is asbestos legislation--talk about manufacturing jobs. Asbestos litigation is killing us. What is happening? The other side of the aisle is blocking it because their trial lawyer friends in the Democrat Party, who support the Democratic Party more than any group, they are blocking productivity, they are blocking job creation. They come to the floor and complain that there are no jobs available. The fact is, the policies of this administration are working, and it is just driving the other side crazy. They want to complain about the past. Look to the future. Things are looking great, except when it comes to the third branch of Government. The third branch of Government, the judicial branch of Government, is one of the most important branches of Government because it interprets our Constitution. It says what our rights and responsibilities are according to that Constitution. You have to wonder because I get this question all the time: Senator, why are you spending all this time on judicial nominations? What is so important? How does it affect me? I get reporters' questions all the time. Reporters sometimes can be insightful and sometimes they can ask the most basic of questions. And you wonder why. But in this case the basic question is a good question: Why should we care about this? Now, if you would listen to some on the other side, they would tell you, you should not care about this. Turn your televisions off. Nobody is paying attention. The sign from the Senator from Iowa: I am going to be watching ``The Bachelor'' tonight. That, to me, was one of the most telling things. It was a joke. Oh, but you know humor. Humor is one of the great things in our society, every society, because for humor to be really effective, there has to be a little bit of truth in it. The little bit of truth in that--I am going to be watching ``The Bachelor''--is don't pay attention. Please, don't pay attention to this. Go do something else. We would rather have you not know what is going on. We would rather have you, at 5 o'clock in the morning, be safely snuggled asleep in your bed knowing that, trust me, we have taken care of all of your concerns and needs. So go watch ``The Bachelor,'' something really important, something really significant, something that is going to elevate your life. Don't pay attention to one of the most important debates this Senate has ever had. Go watch ``The Bachelor.'' Go watch the continued debasement of our society. That is what you should be doing. Now, I know that people are going to say: Oh, well, you can't take a joke. But in humor is truth; otherwise, the humor does not work, does it? Go watch the debasement of our society. I would argue, if you want to watch the debasement of our society, you should turn on to C-SPAN right now because what is happening on the floor of the Senate is an attempt by a minority to circumvent the Constitution. Why? Circumvent the Constitution by requiring a higher standard for the confirmation of judges than has ever been held before. Well, they say there have been filibusters before. There has never been a case where there has been an organized attempt to block a nomination by requiring a supermajority. There have been cloture votes filed here. In the case of Stephen Breyer, Justice Breyer, nominated after the 1980 election, after Jimmy Carter lost, after the Democrats lost control of the Senate in a landslide election--can you imagine if President Bush had the gall to nominate someone to a circuit court after getting swamped in an election? There would be audible laughter on the other side of the aisle that we would consider a nomination at that point. Filibuster? My goodness, they would be screaming how dare you have the gall to do something like that? I know the Senator from Rhode Island said: Well, I would hope we would consider this. Oh, please. Please. Look at the nominations they are blocking now, ``out of the mainstream'' nominations they are blocking now. Janice Rogers Brown: 76 percent of the vote in California. Out of the mainstream? Priscilla Owen: 84 percent of the vote in Texas. Out of the mainstream? Oh, I would hope we would consider these nominations in due course? Really? Really not. No. What the Senate Republicans did in 1980, by confirming someone to an appellate court, shows what the Senate was like years ago. But it has fundamentally changed. Why? Well, back then we had leaders. You had Howard Baker. You had people here on this side of the aisle who put the institution first, who said, as a leader: We are not going to filibuster. In fact, they moved the cloture vote to move the judge. Why? Because we only had a week or so left when the nomination came up. Here in the Senate just to move anything takes weeks. At the end of a session, one Senator has enormous power because they can make you go through the procedures in the Senate to get to a vote, which takes weeks if there is not consent. So just one Senator, at the end of a session--we all know it. We all use this leverage. It is the beauty of this place. It is why one Senator is so much more powerful than dozens and dozens of House Members. It is because of the rules here. But the Senate minority leader, soon-to-be majority leader said: We are not going to do that. We are not going to filibuster. If there is a hold on soon-to-be Judge Breyer, we will work with the soon-to-be minority that was swept out of the election--huge losses; hemorrhaging--we will work with you to confirm someone who, by the way, is now on the United States Supreme Court and is writing opinions that make me throw up. But we did it because the Senate was a different place then than it is now. We did it because the leaders were different then. Leaders did not respond to the latest pro-choice Web site. They were not manipulated by organizations far from this place, who fund their campaigns and support their grassroots activity, narrow special interests, who seep into this Chamber like hidden gases underneath the door panel. That is what is poisoning this atmosphere. That is what is poisoning this atmosphere. It is narrow zealous special interests. That is what has changed in this place. But it is not just them. They cannot do it without us because there have been the NARALs and the ACLUs, and People for the American Way, and the trial lawyers association and all--labor unions--they have been out there before. But people in the Senate always stood up for the Senate against the passions of the moment, the special interests of the moment, the needs and wants of your supporters at the moment. They felt a responsibility. They felt a responsibility for their leadership in the Senate. It is amazing to stand here. The Chamber is basically empty. No offense to my colleagues from Kansas and South Dakota, but it is 5:10 in the morning, as my voice echoes, resonates without very many people here. But you still look around this place, and you look at the empty chairs and you close your eyes and you can just feel the presence of the greats who have been here in the past, of the people who have sat in these chairs--these very chairs at these very desks in this very place, this beacon of deliberation, this beacon of sometimes delay and sometimes not particularly pretty debates in the Senate, but yet the essence of democracy here. And for 214 years--214 years--the leaders in this Chamber, not necessarily all the Members--we are a society of saints and sinners and everything in between, but the leaders in this Chamber always took the responsibility of leadership of this august body as a sacred trust because what we do here sets precedent for what will happen. The Senator from West Virginia changed the filibuster rule. I know with his sense of history he knew the consequence of his action. When he changed the rules postcloture for the recognition of a quorum, the Senator from West Virginia knew what the consequences of that would be. When we change any procedural thing in this Senate, we know because history has taught us that there are profound consequences. So when Senator Daschle, Senator Reid, Senator Kennedy, Senator Leahy, Senator Durbin, Senator Clinton, and Senator Schumer--the leaders of this new strategy--decided they were going to enlist their colleagues on a new course, they could not help but know. You cannot help but know, if you spend any time in this place. If you are a page, who comes in 15, 16, 17 years old, and comes in and just sits in this place for any period of time, you know that what you do here over the years remains in some way because you set precedent. You all know, just by looking at these sometimes not particularly attractive, sort of stodgy-looking leather chairs that this place is a place of tradition. It is a place of precedent. These are old wooden desks. We have little ink wells. Look at this little sand that comes out of these things that were used for people who signed documents with feathered pens. Come on. You cannot be here and not know that this is a place of tradition and precedent. It reeks of it. So when you change something here, you have to realize that it has a huge impact on our society. So I ask, what is the great issue of the day--issues of the day--that are so urgent, that are so powerful, that are so necessary for this precedent of the Senate, for a leader never to involve his party in a partisan attempt to block a nominee by requiring an unconstitutional supermajority to confirm the nominee. Never has been in history. Mr. President, 2,730 nominees since the filibuster rule was put in place in the last century. No nominee-- never, never with a nominee in the history of the country did a minority leader ever enjoin his forces to block by using the filibuster. Never before. Now that is a precedent- setter, folks. Why? Why? Why is it so important? What has changed that would not lead George Mitchell to do that? That would not lead Howard Baker to do that? That would not lead Mike Mansfield to do that? That would not lead Everett Dirksen to do that? That would not lead Senator Taft or Senator Vandenberg or Senator Johnson to do that? Let's go on back through history. All of these men--the giants of the Senate--the giants of the Senate never once employed this tactic. Do you think that Lyndon Johnson, as majority leader, ever had a nominee he did not want? I assure you, having read some of the history of Lyndon Johnson, and Caro's book--the Senator from Arkansas talked about it--there were people the Senator from Texas did not like. There were people the Senator from Ohio, Mr. Taft, did not like. You could go on throughout history, but did they ever apply a higher standard? Did they ever do that? The answer through history is no. Could they have? Well, obviously from what is happening right now, the answer is, yes, they could have. But did they do it? No. Were there issues of great importance during those times? Well, I would suggest if you were living through those times of war and depression and communism and segregation, and in prior centuries, slavery, reconstruction, and trust busting, and human rights, I would argue those are pretty big issues. Never before used. So I am going to go back to what the Senator from Kansas was talking about in the last hour. What are the issues--or what is the issue--that is so important that the Senator from South Dakota and the leadership of the Democratic Party would seek to change the way the Senate does business, would seek to change the precedent of the Senate and potentially forever change the judiciary of this country? Let's make no mistake about it, you are going to dramatically affect who is going to be applying for these judges, who is going to be confirmed, and what their point of view is going to be--I would argue what their competence is. The issue is clear, it all centers around this issue called the right to privacy--the right to privacy. Now, here is a copy of the U.S. Constitution. I am holding it up in my hand. I challenge any person in this country, in the world, to find the words ``right to privacy'' in this document. It does not exist. It does not exist. Wait a minute. I always thought--I ask students all the time: What section of the Constitution is the right to privacy? Will you please read the section that the Founders, or through constitutional amendment, established the right to privacy? Can you please find that for me? Well, oh, yes, it is in the--let me see. Is it in the 14th amendment? Is that where it is? No. I am sitting here reading: ``All persons born in the United States subject to jurisdiction . . .''--no, no, I don't see the words ``right to privacy'' in there. Maybe I was wrong. Maybe it is the 10th amendment: ``No powers delegated to the United States Constitution prohibit the States or reserve the States with respect to . . .''--no. Oh, it has to be the first amendment. Good: ``Congress shall make no law respecting the establishment of religion, prohibiting free speech or the exercise thereof, or abridging the freedom of speech or the right to peaceably assemble . . .'' --no, it is not there. Where is this right to privacy? Well, it was created by whom? It was created by judges. Was it amended because there is a provision in the Constitution, we can find that, that says how you amend this document. Is that the way it happened? No, it did not happen that way. We amended the Constitution because we put in place a power of authority, people on the highest court of the land who decided it was their responsibility to change the Constitution, that it was their responsibility to find new meaning in these words that have been around for a couple of centuries. I have always thought we were a government of laws and not of men, but that is not the case anymore. That is fundamentally what this debate is about because, you see, the written words of the Constitution that says a majority vote is necessary do not mean anything anymore because the Constitution is a dusty old document we can manipulate and change for whatever purpose because we have advances in society; we know more than they did then; we are enlightened. Come on, folks, 240 years ago, they didn't have the level of sophistication and knowledge of our culture today, and so these dusty old documents need to be revised; it is so complicated to go through the amendment process of the Constitution; it is so cumbersome; we, the enlightened, will change it as, of course, the culture demands us to do, to free us from the bonds and shackles of these now long departed Founders of our country who couldn't possibly understand the complexity of the world today and the advancements today that have made this document so unnecessary. So we don't need to find anything in this piece of paper. In fact, if we can't find it, that is fine; we will simply create it. Who does this creating? It is the very judges we are debating today. The Senator from Kansas talked at length in the last hour about the line of cases that is taking an eraser to the word ``God,'' religion, erasing it from our public consciousness. It is as if the first amendment was never written: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . ``Free exercise thereof.'' I asked a group of students yesterday what were the first words in the Constitution, separation of church and state or exercise of free religion. Half said separation of church and state. Of course, if you listened to the judges and what popular culture says, you would believe that. Can you imagine, half the people I talked with yesterday did not think free exercise of religion was in the Constitution? Can you imagine? Why would they think that? Because in practice that is the message the culture sends about the Constitution. It is not about freedom of religion. If it were about freedom of religion, we wouldn't be erasing God from everything that is public in our culture. Who is doing the erasing? Is it Congress? Did Congress pass a law that says you can't have prayer before a football game? Did Congress pass a law that says we will scrap ``under God'' from the Pledge of Allegiance? Did the people speak out and say, We don't want the mention of any faith in the public square? Is that what Congress did? No. So people ask: What are the consequences of what we are doing here today? The consequences are clear. We have elected people who are erasing from the public consciousness some of the most important and fundamental rights and, I would argue, some of the most important and fundamental principles that keep our country moral, safe, free, and prosperous.

Mr. SANTORUM. I will be happy to yield to the Senator from Kansas.

Mr. SANTORUM. Mr. President, to be referred to as an extreme Member of the other side of the aisle, I would like to suggest that this extreme Member on the other side of the aisle never voted against cloture on a judicial nomination. How extreme is this Member versus the Member who just spoke, who has voted repeatedly and repeatedly and repeatedly and repeatedly and repeatedly against cloture? Who is the extremist? I will posit that to the American people. Who is the extremist? The Senator from Pennsylvania, who never in his career voted, ever, against a cloture petition for a judicial nomination or the Senator from Illinois, who has led the effort, organized the posse, to filibuster, for the first time in American history, nominations for the court? This is only 168 to 4. When the rules are changed, upon changing the rules you have to start with one. Then you do two. Then you do three. Then you do four. And today we do five. Today we do six. Next month it will be seven. Then it will be eight. Years from now, it will be 127, and then 3,455. It starts with one. It starts with the change. There have been 2,372 nominations since the filibuster rule was put in place; zero blocked on the Senate floor. It has never been done in history. Oh, it is only four, just a few. We are doing great. ``We just started,'' is what they are not saying--we have only just begun. We just started this, folks. Not the Senator from Pennsylvania, not the Senator from South Carolina, not the Senator from Missouri. The Senator from Missouri opposed a judge. He said, look, have an up-or-down vote and then I will vote no. That has been the way it has been done here. This idea that we have filibustered nominations by folks not getting a vote in committee, let us look at the record. Fifty-four Bush nominees under the Democratic Senate got no hearing, did not get confirmed. Have we complained that they were filibustered? No, because they were not. Every President at the end of his term has judicial nominations in committee who have not gotten through, for a variety of reasons. It is just the flow of the Senate. In this case, 54 Bush nominations. How many Clinton nominations, after 8 years? Forty- one. Let me repeat this again because we are saying this is different; Clinton was treated so unfairly. There were 377 nominations, 1 defeated on the floor, up-or-down vote. No filibuster. I remember--the Senator from Missouri, I am sure, can remember this-- Richard Paez. I do not know if the Senator from Missouri voted against him or not, but I sure did. I did not vote against cloture because the Senator from Mississippi, Mr. Lott, and the chairman, Senator Hatch, said: Do not set this precedent. Do not change the rules. It is going to come back and bite us. We cannot do this. It is too important to the future of the Senate. It is going to undermine the judiciary. The Ruth Bader Ginsburgs of this world, the Antonin Scalias of this world will not have a prayer getting through this place. The best and the brightest are going to get knocked away or scared away if we raise this bar, if we allow the extreme elements of either party to start to run the Senate. We cannot let this happen. As much as we may want to, as much as we did not want Richard Paez to be a Ninth Circuit Court judge, you have to hold back. You cannot let the passion of the moment completely destroy the precedent that has served this body and this country so well. Do not succumb to the special interest groups who are pleading with you. Come on. The Senator from South Carolina said just in the last hour that for every one liberal special interest group there is one conservative one. Guess what. When the shoe is on the other foot, do you think we are going to say, oh, well, we are going to go back to the way it was; we are going to let you have all of your liberal judges; we are only going to require 51 votes? Fat chance. Fat chance.

Mr. SANTORUM. I will yield the floor to the Senator from South Carolina.

Mr. SANTORUM. Mr. President, the Senator from Kansas points out that Judge Pickering, who is a sitting Federal court judge right now, was affirmed in 99.5 percent of his cases. What I have heard from the other side is that we do not want these judges out of the mainstream being nominated. Now, would the Senator from Kansas say that someone who has been affirmed or not appealed in 99.5 percent of the cases since he has been on the Federal court is someone out of the mainstream?

Mr. SANTORUM. Mr. President, I plead with the Members on the other side of the aisle to stop this. I have folks on our side of the aisle saying: Don't plead with them. Don't plead with them. Let them do it. Because we will have our opportunity someday, and we will make sure there is not another liberal judge ever, ever, to get on that--no more Richard Paezes, no more Ruth Bader Ginsburgs--never, because what is good for the goose is good for the gander. Let them up the ante. We will take all those activist judges they send up and we will shoot them down. Is that what they want? Anybody who gives a political opinion in America no longer will be eligible for the judiciary. We are going to sanitize the judiciary? We are going to send it to ``Mediocrityville''? Is that what we really want here? Because let me assure you, as I live and breathe, that is what will happen. If we keep this up--it is 4 today; it will be 6--in 2 hours it will be 6. The Senator from Utah said pretty soon it will be 12. Why it is only 4? Because you just started. You always start with 1.

Mr. SANTORUM. Stop now. You have a chance to save this country and this judiciary. Stop now.

Mr. SANTORUM. Mr. President, I have the floor. Now that chart the Senator from Illinois is going to show is 168 to 6. And I would project that 168 to 6 will soon be 168 to 7 and then 8 and then 9 and then 10; and that this number is going to actually, looking forward into the future of the Senate, be a good percentage. I might agree with him looking forward because we will have set a precedent tonight. We will have set a precedent in this session of Congress that will go to haunt both sides forever. If we maintain it, it will. I guarantee it. What we are doing here is playing with real bullets. I tell you there are folks on our side of the aisle who are loving what you are doing. They are loving what you are doing, man. They just think, go, baby, go. Do this because we can't wait to get our arms around the next Democratic President who wants to stack the court with a bunch of people who believe God does not belong in the Pledge of Allegiance. We can't wait--who, by the way, got confirmed by the Clinton administration and by this Senate. We can't wait to get our arms around people who find in this Constitution things that are not in it, who believe it is their job to be the super Senator, the super legislator, the super President. We can't wait to block those nominees because, do you know what. You did it first. You did it first. You can say, oh, no, we didn't do it first. You did it first. You crossed the line. Oh, it has been threatened. It has been talked about around here. I will not deny that. I talked about it. Richard Paez, by the way, who tried to stop the California election a few days before the election, found somehow or other that ``you can't hold this election,'' that, to the people wanting to recall the Governor, ``you can't do that because, of course, I know more than the people.'' Richard Paez, Ninth Circuit, overturned more than any other circuit in the history of the United States. Clinton nominees, liberal, activist judges, out of step with the mainstream, the Senator from New York and maybe other Senators call mainstream, who says ``under God'' does not belong in the Pledge of Allegiance, who said ``three strikes and you're out,'' that the people of California voted for, is unconstitutional. The Supreme Court overturned that. That is the mainstream. Can't wait to get at the next Richard Paez. Can't wait to get at the next Marsha Berzon. Go on down the list of folks. Did I want to filibuster them? Did I want to filibuster Richard Paez because he was a district court judge? And he was awful. He expressed values and views that were so out of step with America and with my constituents in Pennsylvania, I just could not stand it. I said, come on. How can we continue to let these judges, who think they are God, who think they are Senators, who write laws that do not exist, who take the laws we do write and turn them into what they think, not what the Senate believed and what the President believed--how do we let these people keep coming at us and not do anything? My leader, Trent Lott, and my chairman of the Judiciary Committee, Orrin Hatch, said that is not the way we do things in the Senate. This is the passion of the day. But in the Senate, one of the great things-- and you hear it on both sides all the time--one of the great things about the Senate is we do not get caught up in the passion of the day. We understand the long term. We understand the greatness of America. We hear we are the cooling off. We do not get caught up with the passion of the day. We are the deliberative body. Therefore--and therefore--we have a higher calling than to respond to the NARAL ads or the People for the American Way ads. We have a higher calling. We are Senators. We look out for the long-term interests. How do you preserve the long-term interests? You do it by following the laws and the precedent. You do it by using what has been established over 214 years to protect rights, and we are throwing it away. We are throwing it away, and understand the stakes of what we are doing here. Understand the precedent we are turning over and what we are going to unleash on the floor of this Senate. Do you know what. Maybe it is a good thing. I have sat here now--I will not argue against my colleagues, but I have sat here now, and I listened to the Senator from Kansas. I would ask the Senator from South Carolina: Do you believe there are some on our side who, after listening to the Senator from Kansas and listening to the judges who have been put through--because we have been good stewards. We have allowed the Richard Paezs of this world to come and undermine our Constitution. We have allowed the left to seed into the court system those who would destroy this Constitution. Are there not Members of our side, I ask the Senator from South Carolina, who would say, thank you, we never had the courage--we never had the courage--to change the way the rules are here in the Senate to make sure that we could protect--as I think the Senator from New Jersey said--``protect our courts?'' We did not have the courage--as the Senator from New Jersey said--``to stop judicial extremists.'' So maybe what we should be doing, I ask the Senator, is thanking the Senator from Illinois--and the Senator from North Dakota is here--and the Senator from South Dakota, Senator Daschle. Maybe what we should do is instead of protesting this is to thank them for giving us a tool, for giving us a tool to protect this document. I assure them--maybe I should not assure them--maybe I will ask the Senator from South Carolina, what do you think will happen now?

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I want to respond directly to the comments made by the Senator from Connecticut. I too sit on the Rules Committee and I take a responsibility here, being a steward, as the Senator from Connecticut said, a temporary steward of this place. One would think, if they listened to the comments of the Senator from Connecticut, that what the Republicans are trying to do is change the rules. I have a chart of the last 11 Presidents since the ``filibuster rule'' has been around: 2,372 judicial nominations confirmed, zero filibustered. Who is changing the rules? This is a wonderful world we have: That left is right, right is left, up is down, in is out. The rules have been changed by practice. They hold up a chart 168 to 4. This states 2,372 to nothing. Never been done. Walk through these Halls. Stand in this Chamber. If the walls could speak of the great debates, the intense, partisan, vicious debates that occurred in this Chamber, fights that have occurred on the floor of the Senate because of the passions of the moment, so firmly believing that what you were fighting for was right. But not once, not one time did they put that passion for that short- term partisan or political or policy game in front of the sacred constitutional process that governs this country. What does that constitutional process dictate in the case of judicial nominations? Look at the precedent my friends. Look at the precedent. No filibusters. Because the Constitution says that it is a majority vote. In spite of the rancor, in spite of the partisanship and the stakes so high so many times in our country's history, they always had the perspective because, yes, I say to the Senator from Connecticut, they knew they were temporary stewards. They took that responsibility seriously so they did not corrupt the rules. Why are we changing the rules? We are not trying to change the rules. We are trying to bring back the rules that have been in this country for 214 years. We are trying to change the rules? We are not being good temporary stewards? Me thinks thou doest protest too much. We are simply trying to set this Senate back to the days the Senator from Connecticut recalls as a boy, when giants did stroll this Senate, where big matters were at stake, but they put the integrity of the process, the integrity of the Senate because we are a country of laws and rules and constitutions. We do not twist them and corrupt them to meet the short-term political needs that some interest group off the Hill was pleading for you to do. That is what is happening here. That is what occurs here, and will occur, unfortunately, if we do not have a change of heart by a number of people on the other side of the aisle again on Friday so the 98- percent button that I see and the 168 to 4 will now be 168 to 6 and then 168 to 7 and then to 8 and then to who knows? Because once we corrupt the system, once we twist the rules to meet our partisan end, there is no end other than a complete debasement of what this Senate has stood for 2,372 times before. I yield the floor.

Mr. SANTORUM. Mr. President, reserving the right to object.

Mr. SANTORUM. Will the Senator yield for a question?

Mr. SANTORUM. Most decisions that are appealed from the trial court go to the appellate court, or the circuit court, but very few go up to the Supreme Court. Is it not true the appellate court makes the final decision in a lot of these cases?

Mr. SANTORUM. Mr. President, reserving the right to object.

Mr. SANTORUM. I am happy to yield.

Mr. SANTORUM. They have blocked every form of reasonable and balanced litigation reform that balances the interests of those who rightfully have a plea before a court for compensation and the right of society not to have outrageous awards, which make us unproductive, which raises the cost of health care, and which limits the availability of health care to millions of Americans.

Mr. SANTORUM. Mr. President, I want to respond to what the Senator from New Jersey has said. I think to put it into the proper context, the Senator from New Jersey is talking about people who were nominated by President Clinton who didn't get hearings. Most of the people who didn't get hearings had blue-slip problems. Democrats, right now, are holding members of their States in committee--right now--with blue slips. That has been done. In fact, there are a whole bunch from Michigan being held by the Senators from Michigan for the circuit court, by blue slips. Democrats are holding up judges right now. So the idea that we are going to compare that, which has been a historical right of Senators, to the home State being consulted on nominations for the district court-- speaking as a Senator from Pennsylvania, I can certainly suggest to the President who I would like him to look at for the circuit court from my State. But I don't get a right to tell him who it is. The precedent has not been that way. The Senators from Michigan are blue-slipping these nominees and they have blue-slipped others. Some of the nominees pointed out by the Senator from New Jersey, held by the Clinton administration, were actually pulled by the Clinton administration. The number that were actually not pulled because of FBI problems were 42, not 63; 42 did not receive a hearing. Some of them had blue-slip problems. Members were not properly consulted from the States. Some were Democrats and some were Republicans. This has been a practice throughout Senate history. The question is not whether that practice should be changed. Some suggest--and, in fact, there has been a movement by several people to try to change that process. But this is something that is a prerogative of home State Senators, which has been a prerogative of home State Senators throughout the tradition of the Senate. It is one that I think most Members would say is probably a good thing. Home State Senators are consulted by the President before people from their State are nominated. They should have some advice and consent into the process. When they don't, some Senators get very upset about that and they sign a negative blue slip. So let's talk about apples to apples. We have 42 Clinton nominees not acted upon for a variety of different reasons; some the committee didn't like, some were blue-slipped, some were submitted late in the process. So there were 42, after 8 years. There were 377 confirmed nominees and 1 was defeated on the Senate floor. There were zero filibusters on the floor. Under President Bush 41, there were 54 nominees not considered by the Democratic Senate Judiciary Committee--more than President Bush, substantially less number of nominees confirmed by the Senate. Now, we don't know how many George W. Bush nominees are not going to be confirmed by the end of this year or next year, but there will be some. Some will be nominated late in the process, and it takes a while for the process to work. There will always be some in the pipeline. That is the way the process works. So the idea that we are going to take the normal process of processing judges here and say we have not considered every one of them and that sort of makes everything all equal, no it does not. The issue here is that, once the Judiciary Committee has done their job, just as every committee here does their job--lots of committees have nominations. It is their job to scrub them and find out whether they are qualified and capable to do the job and report them to the Senate floor if they think they are. I was on the Armed Services Committee. We reviewed thousands of nominations; some we didn't report out because we didn't think they were proper for promotion or appointment. That is the obligation of the committee. We get lots of bills in these committees. Is every bill that we don't report out somehow as a result of a filibuster in the Senate? I don't think so. That is the job of the committee. Once the committee makes the determination and the majority of the committee--whatever it is, Democrat or Republican, or a combination--reports a nominee out, reports a bill out, the question is, what happens on the floor of the Senate? With respect to nominations, since the filibuster rule was put into place, 2,372 nominations have come to the floor of the Senate, and not 1 has ever been stopped from an up-or-down vote. Not one. All of them received up-or-down votes. This idea that 168 to 4--we keep hearing that is a good percentage. Is it? Is it a good percentage when the four are subjected to a process that has never been done before? It is soon to be 6, promises to be 12. All of a sudden, 4, 6, 12--exponential growth here. Why? Because we are going down a very twisted and tortured path, with the logic that is being followed by the minority in the Senate. What is happening here has never happened in the history of the Senate. This is a great body. Incredible debates have occurred here in the past. This is the greatest deliberative body in the world. It should be. We should talk about these issues. It is great that we are here all through the night talking about this. But in the end, our responsibility, according to the Constitution, is what every other Senate for 107 sessions of the Senate, for 214 years, has done. Our responsibility under the advise and consent clause of the Constitution is to consider judicial nominations and give them a vote up or down. That is what every Senate leader, every Senator who had the opportunity to have an impact on this process--they all came down with the decision that that is what this constitutional provision meant--until this year. Some have suggested, well, these judges are so far out of the mainstream; they are so bad; there have never been judges this bad; these guys are really bad; they are not just bad, they are really bad, worse than we have ever seen in 214 years; nobody has ever been this bad; therefore, we have to change the rules. Let's talk about a couple of judges. One who I voted against--I will use one of them--was Judge Paez, who was referred to on the other side. I voted against Judge Paez. But I voted for cloture. I thought Judge Paez would be one of the worst judges this country would ever see. I didn't want him to be a judge. He was already a judge in district court, but I would loathe to put him on the Ninth Circuit because I thought he would absolutely take the Constitution and set a match to it and throw it in the trash can and do whatever he damn well pleased. Well, they are saying that Judge Pickering is so far out of the mainstream that he would light a match to the Constitution and throw it away and do whatever he pleases. That is pretty much what they are saying. Well, let's look at Judge Pickering and Judge Paez and see what they did with two similar cases. Judge Paez and Judge Pickering both had cases before them having to do with sentencing guidelines. Judge Pickering didn't like the sentencing guidelines that were before him in a case. The other side has used this case as their principal reason--one of them--of opposing Judge Pickering. They didn't like the way he dealt with this case because he didn't like the sentencing guidelines. So what did Judge Pickering do that they really don't like? They find it deplorable conduct that this judge would do this. What did he do? He complained about it. He complained about it. That is it. Judge Pickering complained about it. What did Judge Paez do? He struck it down and said it was unconstitutional. Now, who is the judge that is throwing the Constitution in the trash can? What was the provision that Judge Paez struck down and said was unconstitutional? The three strikes and you are out provision, which was voted in by the people of California. What happened to Judge Paez? His decision was overturned by the U.S. Supreme Court. Who is the mainstream and who is the extreme? Every time you hear mainstream over there, put an X in front of it. It has nothing to do with mainstream. It is extreme. It is dangerous. Let's talk about some of other Judge Paez's decisions. He was one who tried to stop the California election a few months ago. Yes, he was one of the ones who said it is unconstitutional for them to do that. Oh, by the way, he was also on the Pledge of Allegiance case and said ``under God'' should not be in the pledge. Oh, he is very mainstream, the kind of guy we really want. The Senator from New York said tonight, ``I think he is in the mainstream.'' Understand, folks, what mainstream is: ``Under God'' not allowed in the pledge, the three strikes and you are out law is unconstitutional, and the California election is unconstitutional. If I don't like it, it is unconstitutional. That is mainstream? A government of men, not of laws is mainstream? This is very dangerous, folks. People ask me all the time: Senator, why should this matter to us, what is going on here? Why does this matter? What do judges have to do with my life? Well, the answer to that question should be: not much. That is what the answer should be--not much. Unless you get into trouble one way or another, it should not matter that much to you at all. What a judge should do is as little as possible. They should try to make decisions based on the narrowest law possible, not try to make pronouncements and change the law from the bench or amend the Constitution from the bench. They should do as little as possible. See, that bothers a lot of my colleagues on the other side of the aisle. They don't want judges who will do as little as possible. What they are concerned about with Judge Pickering is not that he will do as little as possible. They are concerned he will do as little as possible, that he will make decisions based on the narrowest grounds, not broad, sweeping grounds, the grounds that change laws and create new rights or responsibilities. No, they want someone who will put their world view in the law that they cannot accomplish through the legislative process. They want judges who will do it through the judicial process. That is what they are getting. They don't want anybody who will say we are going to stop doing that. That is not what the Founders wanted us to do here. If they wanted us to respect the legislative branch and presume that what they pass is constitutional--if in fact it is not, we have problems--then decide the issue on the narrowest grounds. That is what we want. That is not what they want. I am really troubled. I am really troubled by what I see going on in the Senate of people who are willing--for what? For what cause? Are they willing to take the Constitution of the United States, when it comes to the confirmation of judicial nominees, which has been upheld by every Congress in history, and turn it on its ear to accomplish some goal? My question is--and I asked it earlier--in 214 years, no group of Senators ever decided that it was what they cared about, with respect to the courts, that it was so important that they were willing to go against the Constitution, which says a simple majority for advise and consent. It did not require a supermajority. They were going to go against the Constitution and raise the bar. No Senate in history said we were going to raise the bar and require a supermajority vote, given all of the incredible issues that we had to deal with in the Senate; no Senate has ever said the issue today is so important that we need to raise this bar, that it is best for our country to do that. Why? Because most Senators always felt, as I deeply feel, that we are a Nation of laws, and this Nation of laws and of constitutional law is important to preserve. We should not just throw it over for an immediate political whim, or policy whim, because once the process is corrupt, once the law is violated, once the procedures are changed, you cannot put the genie back into the bottle. What this debate tonight is all about, this process we are going through is is a plea. Someone suggested it is not a very effective plea because the chances of getting a vote up or down on the judges is not very high. Yet it is a plea. It is a plea to those who have done something unprecedented in the history of this Chamber to stop. If they stop and they admit this was wrong, that this was not the way to deal with judicial nominations, that this is not a precedent they want to set--not 4 times, or 6 times, or 12 times but probably many times after that--and that this is not the right way to handle judicial nominations, maybe then we can bring some civility back to this process. Maybe we can say to the people who want to serve this country in one of the most honorable ways they can--to be a judge--a very important function in our society, maybe we will be able to attract the best and brightest to come here and offer up their services and not feel they are going to be put through a washing machine or, worse yet, maybe somebody who cares about the long-term health of our judiciary, that we don't politicize it by applying litmus tests. Let's just lay the cards on the table. What is this cause? What is this cause that the other side is so passionate about that they had to change the rules? The cause is the right to privacy. That is the cause--Roe v. Wade. I have given many talks on abortion on the floor of the Senate. I said the right to privacy under Roe v. Wade has had its tentacles reach out and corrupt so many areas of our culture: abortion, eugenics, euthanasia, stem cell research, cloning, the right to same-sex marriage--all of these rights come from this right to do whatever you believe is right for you to do. You are the law. You have the right to do whatever you want to do. That is where this right comes from. I said it has infected and poisoned the culture beyond what people even today realize: the cheapening of the value of human life, the debasement of the family, the basic social structure of our country. It is corroding and eroding who we are. But I forgot one, it is now corroding and eroding the Senate.

Mr. SANTORUM. I object.

Mr. SANTORUM. At the District of Columbia level are trial court judges who basically preside over trials and the circuit court or appeals courts decide matters of law that apply across the circuit, and it can have an influence in other circuits. Is that correct?

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I, too, thank the Senator from Indiana for working very closely with Senator Boxer and me on this very important piece of legislation, which is a very timely piece of legislation. The House passed this legislation a few months ago and sent it over here. We have been working diligently with both Senator Lugar and Senator Biden, and they have been most cooperative in working with the administration to craft a bill that I think meets some of the concerns the administration has, some of the concerns the committee has experienced in dealing with sanctions bills, and particularly the issue of the waiver authority of the President. The House-passed bill did not allow the President to waive sanctions on military or dual-use items--``dual use'' meaning they could be used for civilian or military purposes. I think the chairman of the committee rightly expressed concern about that, that the precedent generally is that the President have waiver authority in the case of vital national security interests or national security interests. We negotiated as to what that standard should be. We obviously wanted the highest level of scrutiny before the President could waive that which would be vital national security interests. The lowest level would just be sort of a national interest test. And we compromised on a national security interest waiver. It is sort of a midlevel, if you will, waiver authority or waiver standard. We think that is appropriate here for all of the items, all of the potential sanctions that may be imposed by the President under this act. So the President, under the revised bill we have before us, does impose sanctions, but it gives the President the flexibility to waive. But he has a threshold he must meet and make the case that that threshold is made in order to waive these sanctions. So we give the President the hammer that I think is necessary and that so many have talked about here. Syria is a bad actor in the region. It is part of the ``axis of evil,'' in my opinion. It is a country that sponsors terrorism, that supports terrorism, that encourages terrorism, not only against American interests, not only against Israel, but it is occupying, through setting up these terrorist organizations, as well as their own military force, what was a very moderate and progressive Arab country, Lebanon. That is a heinous act, and I find it somewhat remarkable that the rest of the Arab world does not continue to condemn it and do what we do: try to ratchet up the pressure on Syria to get out of Lebanon, to allow the people in Lebanon to determine their own government and to freely elect people who could serve the best interests of the Lebanese people, not the dictator in Damascus. So we have, really, a purpose beyond our national security interest, although I would argue that a free and prosperous Lebanon--and given the history of that country, and being a bridge between the Middle East and West--that would be a very stabilizing presence in the Middle East, to have a country with a democratically elected government, and not being the threat Lebanon now poses, not because of the people themselves but because of the terrorists who reside in southern Lebanon, because of the other heinous acts that are conducted by the terrorist groups based in Lebanon that they project throughout the world. This is a very important issue for national security. It is a very important issue for the peace in the Middle East. I am very gratified that the Senate could come to a conclusion on this bill and bring it to the floor of the Senate and have it pass on a day when we honor our veterans, as we should. We had people fight and lose their lives in Lebanon, and they did so bravely and courageously. But I have to say, it was not one of the proudest moments for me as an American to see our troops withdraw from Lebanon and not stay there to fight another day, with the oppression Syria was imposing upon that country. This is a chance for us to begin the process of reengaging in Lebanon, reengaging the Syrians who have been nothing but trouble and fomenting trouble throughout the Middle East and being disruptive of the peace process in the Middle East. I say to the Senator from Indiana, thank you for the time. Thank you for your willingness to bring this bill to the floor and to move this bill forward. I will enter into a colloquy with Senator Boxer to discuss our desire and our hope that the President not immediately think about waiving these provisions; that he think carefully about any kind of waiver; that we try to impose some sanctions and send a message. Given the activities of the Syrians in the Middle East and the activities of Syria in Iraq, it is such an important and relevant discussion, that the President use these sanctions that are available to him for him to do so. Mr. President, I wish to enter into a colloquy with my colleague, Senator Boxer of California, concerning the waiver authority extended to the President for the sanctions contained in the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003. Mr. President, as the original cosponsor of the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, I want to clarify the bill's intent with the original sponsors, Senator Boxer. Is it the Senator's understanding that--given the seriousness of the charges against the Syrian regime and the fact that the highest levels of the U.S. Government have already made it clear that there will be consequences to the Syrians if there is no change in their behavior-- the national security waiver contained in the bill is meant to address only those circumstances where United States national security interests are indeed severely threatened?

Mr. SANTORUM

Mr. SANTORUM. Mr. President. I want to bring to the attention of my colleagues troubling reports that indicate one of America's leading philanthropic foundations has meddled in world diplomacy in a deeply disturbing way. Let me say that I think my colleagues know very well that I have great respect for the good works done by America's non-profit sector, including philanthropic foundations. So much respect, in fact, that, as my colleagues know, I am working with some of them to get a conference committee to convene with the other body so that we can complete work on the CARE Act and provide a range of incentives that would boost contributions to charities and foundations at a time of great need. And so it pains me that I must come to the floor today to apprise my colleagues of allegations that have been reported with regard to some of the activities of one of America's leading foundations, the Ford Foundation. The reports--published initially by the Jewish Telegraphic newswire service and picked up by many newspapers around the country and in this week's New Republic magazine--describe how the Ford Foundation gave million of dollars to dozen of Palestinian organizations that have been in the forefront of the anti--semitic and anti-Israel campaign that is ongoing around the world. In particular, these reports describe how the Ford Foundation funded Palestinian non-governmental organizations, NGOs, that were responsible for transforming the 2001 United Nations Conference on Racism held in Durban, South Africa into a forum of virulent anti-Semitic and anti- Israel hate. According to the investigation and reports--which interviewed dozens of individuals and reviewed 9,000 pages of documents--Ford contributions financed the development of the anti- Israel strategy and its public relations strategy for dissemination. Accroding to the reports, Ford has extended more than $35 million in grants to more than 270 Arab and Palestinian NGOs in the 2001-01 period alone, and since the 1950s, Ford has distributed nearly $200 million to Arab and Islamic NGOs in the Mideast, and many Palestinian operatives who were involved in the Durban Conference admit that ``Ford has made it possible for us to do much of our work'' and that ``Our biggest donations come, of course, from Ford.'' At least two groups identified in the news reports--the Palestinians Committee for the Protection of Human Rights and the Environment and the Palestinian NGO Network--received more than $2.5 million from Ford in the last few years and were key players in hijacking the agenda of the Durban conference. And let me just remind my colleagues how badly the Durban conference was hijacked. It was so bad that Secretary of State Powell declared the conference to be ``a transparent attempt to delegitimize the moral argument for Israel's existence,'' and Secretary Powell withdrew our country's delegation from participation. As The New Republic's editor in chief writes--``the Ford Foundation's . . . reckless generously is empowering foreign haters and apologists for killers.'' In fairness, the Ford Foundation has denied the charges made in these reports. Ford's vice president has said that his institution was ``shocked by the extremist rhetoric of some participants on Israeli- Palestinian issues.'' Moreover, Ford has said that it shares our government's commitment to ``ensure that grant funds are not diverted for terrorist and other purposes.'' I appreciate these statements by Ford, but I don't believe they have put this matter to rest. The news reports are too specific and well documented to be dismissed by such generalities. Fellow senators, we are in a war against terrorism and those who hate us and those who hate Israel are very often one and the same. We, of course, are responsible for ensuring that government funds we distribute as foreign aid are serving our national security interests and those of our allies. But what I think these reports have brought to our attention is that there are other entities out there, foundations, and not just of the sort that are part of extremist communities whose clear purpose is to channel funds to the terrorists and against whom the Treasury Department is moving aggressively and indictments are being handed down but well known, respected foundations can undermine our policies and activities by making an end run and supporting those with whom we deeply disagree, As a member of the Finance Committee, I am going to be asking Chairman Grassley that the committee look into this more deeply and again review the controls we have in place for foundation activities and grant overseas.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I ask unanimous consent that notwithstanding the passage of H.R. 3365, amendment No. 2051 be modified with the technical correction at the desk.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:30 a.m., Wednesday, November 5. I further ask that following the prayer and the pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then begin a period of morning business for 60 minutes, with the first 30 minutes under the control of Senator Roberts or his designee and the second 30 minutes under the control of the minority leader or his designee; provided that following morning business, the Senate proceed to the consideration of H.R. 2673, the Agriculture appropriations bill, as provided under the previous order.

Mr. SANTORUM

Mr. SANTORUM. For the information of all Senators, tomorrow, following morning business, the Senate will begin consideration of H.R. 2673, the Agriculture appropriations bill. The bill managers will be here in the morning to begin working through the amendments to the bill. It is the majority leader's intention to complete action on the bill during tomorrow's session. Senators who have amendments are encouraged to contact the bill managers as soon as possible. In addition to the Agriculture appropriations bill, the Senate will also complete action on both the fair credit reporting bill and the Syria Accountability Act during tomorrow's session. Therefore, Senators should expect a very busy day tomorrow, with rollcall votes occurring throughout the day.

Mr. SANTORUM

Mr. SANTORUM. Mr. President, I ask unanimous consent that the committee amendment be agreed to, the bill, as amended, be read for the third time and passed, the motion to reconsider be laid upon the table en bloc, and that any statements relating to the bill be printed in the Record.