Arlen Specter

Mr. SPECTER

Mr. SPECTER. When the Senator from Alaska comments that the States can put up some money so there would be no shortfall in the interim until November 18, what assurances are there that that could happen, that they have the funds and the disposition to do so?

Mr. SPECTER. I hear it is November 18. It is 6 weeks.

Mr. SPECTER. Well, I have no present intention of supporting the amendment. I would like to try to find a way to resolve the issue substantively. But it is not an infrequent occurrence that the House leaves town and leaves us with a gun at our head, where we have no practical alternative but to yield to the House, which is out of town, to run the Government. But I am intrigued by what the Senator from Alaska has said. He is very experienced and has been here a long time. He knows the ins and outs of Government perhaps better than anyone. And when the Senator says the States will provide the shortfall in the interim, it is a brief period of time, or FEMA could step in, I would be interested in the comments--I have discussed this preliminarily with Senator Harkin.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection the bill was ordered to be printed in the Record, as follows:

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection the bill was ordered to be printed in the Record, as follows:

Mr. SPECTER

Mr. SPECTER. Madam President, at the outset, I compliment and salute my distinguished colleague, Senator Leahy, for his appropriate, really elegant, remarks in support of the nomination of Judge Roberts to be Chief Justice. I compliment him on his leadership in taking a difficult stand, being the first Democrat to announce support for Judge Roberts' confirmation. It is difficult to step out against party leadership, against what may be a party position, but I believe it is precisely that kind of leadership which is so important for the Senate to discharge its constitutional responsibility in the confirmation process. I compliment as well the other committee members--Senator Kohl and Senator Feingold for stepping out in support of Judge Roberts. And at last count, I know that some 18 Democrats have stated their intention to vote for Judge Roberts. As yet, there are some who are undeclared, so that number will grow beyond. I believe it is a matter of real urgency that when we come to the designation of the Chief Justice of the United States, or any Supreme Court nominee, that politics stop. We say in foreign policy that partisanship should stop at the water's edge, and I extend that metaphor on the recognition that the pillars of the Senate immediately outside the Chamber are lined up directly with the pillars of the Supreme Court of the United States. In that intervening few blocks on the green, on the Capitol complex, that partisanship should stop at the Senate pillars as they extend across the way to the Supreme Court pillars. In the confirmation of a Supreme Court nominee, there is a unique confluence of the three branches of Government on our separation of powers, with the President exercising the executive authority to nominate, the Senate on the confirmation process, and then the seating of the new Justice in the Supreme Court. It is a matter of vital concern that it be nonpartisan. Twelve days ago, on September 17, at the Constitution Center in Philadelphia, the 218th anniversary of the signing of the Constitution was celebrated. Today is an historic day, with Judge Roberts, by all conventional wisdom, slated to become the 17th Chief Justice of the United States. On only 16 occasions in the past have we had a new Chief Justice of our Nation. I believe Judge Roberts comes to this position uniquely qualified, with an academic record of superior standing, magna cum laude, summa cum laude, Harvard College and Harvard Law School, a distinguished career clerking first with Circuit Judge Henry Friendly, a very distinguished judge in the Court of Appeals; then clerked for then Associate Justice Rehnquist; then as an assistant to Attorney General William French Smith; later as associate White House counsel in the Reagan administration; a distinguished practice in the law firm of Hogan & Hartson; then 39 cases argued before the Supreme Court of the United States. So he has a phenomenal record. His answers to the questioning before the committee, which I think was very intense, very directed, appropriately tough, was that he saw the Constitution as a document for the ages responding to societal changes; that he saw the phrases ``equal protection of the law'' and ``due process of law'' as expansive phrases which can accommodate societal changes. As he approaches the job of Chief Justice, he has a remarkable running start. He described his arguments before the Court as a dialog among equals, a phrase that I think is unique and in a sense remarkable; that as an advocate he had the confidence to consider himself talking to equals when he addressed the nine members of the Supreme Court. There have already been indications from the members of the Court about their liking the fact that Judge Roberts is going to be the new Chief Justice. It is not easy to come into a court at the age of 50, where Justice Stevens, the senior Justice, is 85 and others, Justice Scalia, 68, the next youngest member, Justice Thomas, 57. When he has the self-confidence to consider as an advocate a dialog among equals, that is a good sign that he has the potential to bring consensus to the Court. There was an extended discussion during his confirmation proceeding about what Chief Justice Earl Warren did in bringing the Court together for a unanimous decision in Brown v. Board of Education and how important it was. In a case involving deep-seated patterns of segregation and the difficulty of implementing that decision and the years it has taken--it is still a work in process to give quality to African Americans, to Blacks in our society--let us make no mistake about it, it has been, since 1954 when the decision came down, 51 years, and there is still more work to be done, but it was an outstanding job by Chief Justice Warren to bring the Court together with a unanimous decision to put desegregation on the best possible plane with unanimity among the nine Justices who decided the case. As I emphasized during my questioning of Judge Roberts, there is much to be done to move away from the 5-to-4 decisions of the Court, some inexplicable this year. The Court upheld the displaying of the Ten Commandments on a tower in Texas 5 to 4, and rejected displaying the Ten Commandments in Kentucky; within the past 5 years, inconsistent decisions on the interpretation of the Americans with Disabilities Act, 5 to 4 upholding the access provisions, 5 to 4 rejecting the constitutionality on the provisions relating to discrimination in employment. Judge Roberts as Chief Justice has the capacity to fully understand the balance of power between the Congress and the Court and to move away from the denigrating comments that the Court made in Alabama v. Garrett that in declaring an act unconstitutional they had a superior ``method of reasoning,'' or that in establishing the flabby test, flabby being the words of Justice Scalia, on invoking the test of proportionality and congruence in the 1997 case of Boerne, where Justice Scalia accurately noted in his dissent in Tennessee v. Lane that it was a flabby test that allowed judicial legislation and that the Court was setting itself up as the taskmaster of the Congress to see that the Congress had done its homework. So the new Chief Justice will have his work cut out in trying to bring a consensus on the reduction of the proliferation of opinions with so many concurrences coming out of the Court. Yesterday's Washington Post had a headline about a filibuster showdown looms in the Senate and a recitation of frustration among so- called Democratic political activists who do not think their elected leaders put up a serious enough fight as to Judge Roberts. Having been there for every minute of the Roberts proceeding in my capacity as chairman to preside, it was a searching, probing inquiry into Judge Roberts' background and his approach to the issue confronting the Court. When they say there was not a sufficient fight, there were very senior Senators, very experienced, leading the opposition. Who can challenge the tenacity of Senator Kennedy, Senator Biden, Senator Feinstein, Senator Schumer, and Senator Durbin putting up that battle? In the final analysis, we have had many experienced Senators who have come forward to join Senators Leahy, Kohl, and Feingold on the committee, and Senators of standing and distinction--Senator Byrd, who has been in this body since his election in 1958, Senator Levin, 27 years in this body, Senator Dodd, 25 years, Senator Lieberman, and so many among the 18 Senators--where there is the showing of that kind of bipartisanship. It is my hope we will carry forward the spirit of bipartisanship which was demonstrated in the last two confirmation proceedings. Justice Breyer was confirmed in 1994 with an 87-to-9 vote, with 31 Republicans joining 56 Democrats, so it did not make any difference to 31 Republicans that Justice Breyer was nominated by President Clinton, who was a Democrat. The year before, Justice Ginsburg was confirmed 96 to 3, with 41 Republicans voting for her nomination. Before that, Justice Souter was confirmed 90 to 9, with 45 Democrats joining 45 Republicans. Nine Democrats did vote ``no'' against Justice Souter, perhaps influenced by the posters that he would wreck Roe v. Wade. We know he was in the joint opinion in Casey v. Planned Parenthood. Before that, the votes were unanimous as to Justice John Paul Stevens and Justice Scalia, 98 to 0, and Justice O'Connor was confirmed 99 to 0. While the votes among the Democrats will not be as strong as the 41 Republicans who voted for President Clinton's nomination of Justice Ginsburg, we have a sufficient indication of a strong bipartisan vote so that I think it is not unduly optimistic to look for a future where we will have partisanship stopping at the Senate columns. We face another nomination imminently. There have been discussions as to what our sequence and timing will be. We have shown, with the cooperation of Senator Leahy and the Senate Democratic leader, Senator Reid, as we negotiated this timetable--and we had some angst in the negotiations but we worked in a cooperative way so that on September 29 we have met the timetable which we anticipated, although nobody was bound to it. There could have been objections and there could have been delaying tactics, but Senator Reid, Senator Leahy, and the Judiciary Committee, with Democrats as well as Republicans, supported that timetable. It is my hope we will have a nominee who will come forward to replace Justice O'Connor who will be in the mold of Judge Roberts. In a sense, Judge Roberts replaces Chief Justice Rehnquist. Perhaps the ideology is not so important with that replacement, but it is my hope we will have someone who in the mold of Judge Roberts will stand up to the job, looking for the interpretations of due process and equal protection as Judge Roberts did in an expansive way, and looking for societal interests in that broad interpretation. I am pleased to be a participant in this historic occasion, and again I salute my colleagues on both sides of the aisle for the dignified proceeding and meeting our timetable, in coming forward to this confirmation vote at 11:30 this morning.

Mr. SPECTER

Mr. SPECTER. Mr. President, before the distinguished Senator from Alabama yields the floor, I thank and compliment him for his comments and for his work on the Judiciary Committee. He has been steadfast in his participation in all matters but especially with the nomination proceedings as to Judge Roberts. It ought to be noted for the record. Mr. President, Senator Domenici was here seeking an opportunity to speak. I ask unanimous consent he be sequenced following my speech.

Mr. SPECTER. Mr. President, I have sought recognition today to comment on a story which is in the Washington Post today captioned ``Filibuster Showdown Looms in the Senate: Democrats Prepare For Next Court Pick.'' I suggest it is in the national interest that there be a lowering of the decibel level of the partisan rhetoric. There is no doubt that the process for the nomination, hearings, and confirmation of a Supreme Court nominee is part of the political process. I further suggest partisanship has its limits. The partisanship which is demonstrated in this report by the Washington Post today seems to me to be flagrant, extreme partisanship, flagrantly excessive partisanship, really out of bounds and out of the mainstream. The core objection raised by certain Democratic political activists as outlined in the Washington Post story is frustration among party activists who think their elected leaders did not put up a serious fight against Judge Roberts. I was present as chairman of the committee during the entire proceeding. I can state it was a very vigorous fight. It is not necessary to have Arlen Specter's characterization of it. The record speaks for itself. We had experienced Senators on the Democrat side of the aisle who questioned Judge Roberts very closely and who came to the conclusion they would vote no, which they did in the committee proceedings. Senator Kennedy, who can doubt his tenacity? Senator Biden, who can doubt his sincerity? And Senator Feinstein questioned eloquently in many directions. Senator Schumer was on top of all of the issues not only in three rounds of questioning which we had, 30 minutes and then 20 minutes and then 30 more minutes, but in the submission of written questions. And Senator Durbin, the assistant minority leader, spoke and all voted against Judge Roberts because that was their conclusion. But who can say they didn't put up a strong and tough fight? That is an insult to those dedicated Senators tending to their business to say they did not put up a professional fight. There are at this moment some 18 announced or reported Senators on the Democrat side who are going to vote in favor of the Roberts nomination: Senator Baucus, Senator Bingaman, Senator Byrd, Senator Conrad, Senator Dodd, Senator Dorgan, Senator Feingold, Senator Johnson, Senator Kohl, Senator Landrieu, Senator Leahy, Senator Levin, Senator Lieberman, Senator Nelson of Nebraska, Senator Nelson of Florida, Senator Pryor, Senator Salazar, and Senator Wyden. Among those 18 Senators are some veterans of the Senate whose credentials cannot be challenged as progressive, as liberal, as forward-thinking Senators. I will quote from just a few of the comments which they have made. Senator Leahy was the first among the Democrats to speak out in favor of the nomination of Judge Roberts to be Chief Justice. As the ranking member, I sat next to him during the entire proceeding. I can attest firsthand the conscientious way Senator Leahy approached this nomination. It was not a matter of our discussing the merits. It was not a matter of my trying to persuade him. I have served with Senator Leahy for 25 years, and many years before that, back in 1969 when I was the host at the National District Attorney's Association Convention in Philadelphia, I was Philadelphia's D.A., and Pat Leahy, a young prosecutor from Burlington, VT, was the prosecuting attorney in his jurisdiction. I could see him struggle with the nomination as a matter of conscience. He came to the conclusion that was where his conscience led. I identified with his courageous move in the committee. It is not easy to go against the party line, and Senator Leahy was prepared to do that. His statement was a very thoughtful statement, as Senator Leahy is accustomed to be: He commented extensively on Judge Roberts' reliance on the Raich decision, moving away from Lopez and Morris on the commerce clause. He comments extensively on the precedence of Roe and Planned Parenthood v. Casey and forcefully on a number of occasions regarding the recognition to the right to privacy embodied in Griswold v. Connecticut. Senator Leahy commented about the assurances which he accepted from Judge Roberts about taking the mold of Justice Jackson, moving away from being a partisan in the administration as Attorney General to being an impartial judge. There is much more, but the record of what Senator Leahy has said speaks for itself. In addition to Senator Leahy, there are other very well established Senators on the other side of the aisle, impeccable standing in the liberal community. Senator Levin spoke in favor of Judge Roberts; Senator Dodd spoke in favor of Judge Roberts for Chief Justice; Senator Feingold in the committee; Senator Lieberman. I have already enumerated the Senators. So when there are some so-called Democrat political activists who speak up and are critical, as they were of Senator Leahy after he made the opening declaration, first of the Democrats to speak--we are all subject to comment and we are all subject to criticism, but I was taken a little aback by the criticism which came to Senator Leahy after he made his declaration. I have been the object of such substantial criticism myself, so I know what it was like. But I think it goes a little too far when the so-called political activists are raising these objections out of purely partisan motivations. One activist was quoted in this story as saying that Democrats must vote against Judge Roberts, otherwise ``we will not win an election.'' The political process, I submit, goes only so far. And as foreign policy debate stops at the water's edge, at least it used to traditionally, I think that extreme partisanship stops at the consideration of a nominee for the Supreme Court of the United States. That is a line at which party loyalties ought to end and there ought to be independence. That is the confluence of the three branches of Government where, as we all know under our Constitution, the President nominates, where the Senate conducts proceedings and confirms or rejects, and where the nominee, if confirmed, if approved, then takes a seat on the Supreme Court. That is a line in the administration of justice in the United States where partisanship, rank, extreme partisanship ought to end. The so-called political activists are blunt in what they had to say. Their concern is ``restoring enthusiasm among the rank and file on the left.'' I suggest there is a higher calling on selecting a nominee for the Supreme Court, and especially for a Chief Justice, which transcends appeal to extremes at one end of the political spectrum or the other. This kind of comment, I believe, is only going to inspire corollary comment from the other end of the political spectrum. We simply do not need it. I sensed, and have commented publicly on, a lot of frustration bubbling just below the surface in the Roberts nomination hearings. I am concerned about the next nomination. We are looking at a replacement for Justice O'Connor, who was a swing vote. I have stated both publicly and privately my hope we will find someone in the mold of Judge Roberts. The statements which were made by Senator Leahy, by Senator Levin, by Senator Dodd, by Senator Feingold, and others all focused on the approach of Judge Roberts to modesty and stability. And it was more than the words he uttered, it was the way he conducted himself. It was the way he spoke about the cases when he answered the questions and when he did not answer questions. I spoke at length earlier, on Monday, about questions which I thought he should have answered but he did not answer. But that is the nominee's prerogative. And then the Senator's prerogative is to make a decision on how the Senator is going to vote. But when you talk about a filibuster, this body was at the risk of a virtual civil war, with the Democrats filibustering and with Republicans threatening to exercise the constitutional or nuclear option. I took the floor earlier this year on several occasions to urge an independent stand. I heard so many Democrats say they did not like the idea of a filibuster and I heard so many Republicans say they did not like the idea of the constitutional or nuclear option, but Democrats felt constrained to the filibuster and Republicans felt constrained to the nuclear or constitutional option. I urged my colleagues to take an independent stand, that when you talked about the long-range composition and the long-range approach of the institution of the Senate, it was more important than the passions of the moment. I went into some detail and quoted how the Senate saved judicial independence in the impeachment proceedings of Supreme Court Justice Chase in 1805 and 1806 and how the U.S. Senate saved the independence of Presidential prerogatives in the impeachment proceeding of President Andrew Johnson. The Congress had passed a law saying there had to be consent by the Senate for the President to remove a Cabinet officer. Secretary of War Stanton bolted himself in his office. He would not leave. Because President Johnson would not tolerate that kind of usurpation of Presidential power, he was impeached. In this Chamber, he was saved. The Senate saved him. When you talk about the institutions of the Senate, we do not need outsiders telling us when to filibuster. We do not need outsiders and political activists on either side telling us when to filibuster or when to exercise the constitutional option. We were elected. They were not. When you have men of the stature of Senator Leahy and Senator Dodd and Senator Lieberman taking a position, those positions ought to be respected. When you have hard-fighting Senators such as Kennedy and Biden and Schumer fighting a nomination and voting no, their positions ought to be respected. So I hope as to this headline in the Post about ``Filibuster Showdown Looms in Senate,'' it is the last time we will hear the word ``filibuster'' and that we will have a nominee who will command respect, that we will have an orderly, dignified proceeding in the Judiciary Committee in another round of hearings, and that we will acquit ourselves with distinction. At a time when the Congress is under a very heavy fire on all sides for so many items--or the response to the hurricane and for the highway bill and for spending and for a lack of offsets--I have heard many comments that the Senate has acquitted itself very well throughout the entire confirmation process, not just what was done in the Judiciary Committee, but what has been done on the floor of the Senate, and what will be concluded tomorrow when the full body votes. So we do not need outsiders telling us how to conduct our business. They can make their suggestions. They have freedom of speech. But it ought to be within bounds. This sort of extreme, excessive partisanship has no place in the selection of the next Supreme Court Justice. In the absence of any Senator seeking recognition, Mr. President, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, from August 14 to the 22, I traveled to Latin America to investigate first hand important issues relating to national security, immigration and the war on drugs. I would like to share the details of this trip and some of the insights I gained with my colleagues. On Sunday, August 14, we flew to Havana, Cuba. Upon our arrival we drove to the U.S. Mission where we met with James Cason, our chief of mission, and members of his staff. I started off the meeting by asking my hosts if Cuba could help the U.S. combat the smuggling of illegal drugs into our country. Mr. Rod Rojas of the U.S. Coast Guard, who currently serves as the U.S. Drug Interdiction Specialist based in Havana, noted that there is a good working relationship between the Coast Guard and the Cuban Border Guard on drug issues. It primarily takes the form of the Cubans sharing information with the United States as to suspicious ships passing through its territorial waters. The United States then interdicts these ships when they cross into U.S. waters. While the number of such reports has fallen in recent years, Mr. Rojas believes that this is a testament to the success of Cuban efforts: now that they know they will be reported, drug smugglers seem to be avoiding Cuban waters. These reports confirm my long-held view that we should be working more closely with Cuba on drug interdiction efforts. This is why since 2001 I have sought to include language in the Foreign Operations appropriations bill to fund joint drug interdiction efforts between our two countries. This language is in the Senate version of the fiscal year 2006 bill, and I intend to press to secure its retention in the bill through conference. From this positive report on the drug interdiction situation, our conversation turned to a troubling report on the current human rights situation in Cuba. Mr. Cason told us that there has been a deterioration of human rights in Cuba in recent years as Castro has cracked down on political dissidents. In 2003, Castro jailed 75 dissidents and has thus far released fewer than 20 from this group. These arrests were followed by others including the arrest of over 30 dissidents earlier this year. In addition to arrests, Castro has begun to employ other atrocious practices including having dissidents assaulted on the streets and generating demonstrations at the homes of dissidents to prevent them from stepping outside. This repression has spread to the economic realm as well. In the late 1990s, Castro had opened a very limited window to free enterprise in Cuba by issuing licenses for private businesses. Had this trend continued, Cuba could have followed the path of China and Vietnam towards a limited market economy and higher living standards. Instead, Castro has abandoned this liberalization and cut back the number of licenses for private business. Both politically and economically, there are signs that Cuba is going backwards. Finally, our conversation turned to the issue of immigration. In an effort to provide a legal outlet for immigration and avoid the massive boatlifts of the past, the United States allows 20,000 Cubans to legally immigrate every year. This number includes family reunifications, visas given out by lottery, and approximately 5,000 visas granted to individuals accorded refugee status because they are found to face persecution if they remain in Cuba. Yet this legal outlet is still overwhelmed by the desire to leave Castro's Cuba: every year thousands of Cubans who cannot secure these visas still come to the U.S. by sea and, increasingly, overland via Mexico. On Monday, August 15, we returned to the airport in the morning and flew an hour and a half from Havana down to our military base at Guantanamo Bay. Upon arrival we were met by White House Counsel Harriet Miers, Department of Defense General Counsel Jim Haynes, and a contingent of my Judiciary Committee staff. The base commander, MG Jay Hood, greeted us all and loaded us into a boat for the trip across the inlet from the airstrip to the operational center of the base. Our visit began with a briefing by General Hood and members of his staff about many of the individuals being held and interrogated at Guantanamo and what they were learning from them. The briefing also reviewed the many cases on record of individuals we released from Guantanamo who immediately returned to the ranks of the terrorists once free. This briefing was an important reminder of the difficult balance that must be struck in our handling of these detainees. While we must strive for fair processes, we must remember that the individuals we are dealing with are often our most vicious enemies. After our briefing, we drove to a mess hall for lunch where I had the opportunity to meet a number of Pennsylvanians who are serving with distinction at the base. We then visited one of the buildings used for interrogation and met with a group of interrogators who have been assigned to work with the Saudi prisoners. The interrogators informed us that their progress was slow. I asked these interrogators about the tactics they used. They were adamant that they did not use coercive tactics. They added that such tactics do not work. On the contrary, they told us that they have found the most effective method of interrogation to be developing a relationship with a detainee, treating him with respect, and winning him over through positive reinforcement. On August 1, the New York Times ran a front page story detailing the allegations of two senior prosecutors at Guantanamo that the trial system for detainees had ``been secretly arranged to improve the chances of conviction and to deprive defendants of material that could prove their innocence.'' After our tour of the base, I questioned General Hood, DoD General Counsel Jim Haynes, and Brigadier General Thomas Hemingway of the DoD Office of Military Commissions about these allegations and other complaints about the military justice system. White House Counsel Miers was present. Since our conversation was classified, I will not comment in this forum on what was said. After this meeting we returned to Havana. On Tuesday, August 16, we returned to the U.S. Mission to meet with two brave Cuban dissidents: Vladimiro Roca and Martha Roque. Mr. Roca is the President of the Social Democratic Party of Cuba. Knowing that I would meet with President Castro later in my trip, I felt it important to meet with the dissidents so that I would hear from both sides. I learned after my visit that the Governor of Nebraska, who was in town at the same time I was, also met with Castro but declined to meet with the dissidents. Since political parties are banned in Cuba, Mr. Roca's ``party'' has only 35 members. Mr. Roca was jailed by Castro for 5 years from 1997 to 2002 for criticizing his government. Yet Mr. Roca continues to speak out and to criticize the regime. Although free, Mr. Roca has been the subject of intimidation and demonstrations designed to keep him from leaving his home. Like Mr. Roca, Ms. Roque has also been jailed for expressing her strong anti-Castro views. She spent 3 years in jail from 1997 to 2000. Upon her release from prison she immediately returned to her activism. In 2003, she was arrested for a second time while attending an anti- Castro demonstration and sentenced to twenty years in jail. One year and five months into her term, Ms. Roque suffered a heart attack and was released. While both Mr. Roca and Ms. Roque had trials, neither process sounds as if it was worthy of the name. According to Mr. Roca, he was told prior to his trial what the verdict and sentence would be. Mr. Roca and Ms. Roque are not alone. They inform me that there are still 81 prisoners of conscience languishing in Cuban jails for doing nothing more than exercising a right to free speech that their government refuses to recognize. Following this meeting we drove to a luncheon meeting with President Fidel Castro. I had met with Castro during two prior visits to Cuba in 1999 and 2002 and found the experience to be worthwhile. As before, I found Castro to be an engaging host. He has an easy wit and enjoys a good-natured exchange. Yet beneath the joking was a serious undercurrent. Having just come from a meeting with dissidents, I pressed Castro to release the political prisoners in his jails. Castro tried to shift the topic of conversation from his prisoners by bringing up the case of five Cubans convicted of spying in the U.S. whose convictions were recently overturned by the 11th Circuit. I suggested to Castro that far from being an example of American wrongdoing, this kind of fair process is exactly the type of justice he should be offering to his own people. I also pressed Castro to open his country to democracy and dissent. He listened, but my exhortations obviously had no effect. Much of Castro's conversation focused on his efforts to provide health care to third world countries. Castro discussed this topic at length, and it quickly became clear that he believes this effort will be his central legacy. Cuba, a country of 11 million, has 70,000 doctors due to Castro's early emphasis on providing medical care to his own people. Castro has in recent years started sending thousands of these doctors abroad to help serve the underprivileged. Venezuela is the leading recipient of this medical largesse and hosts the majority of Cuba's overseas medical corps. According to Castro, Cuban doctors in Venezuela live and work in the slums and provide crucial medical care to those who would otherwise go without. For example, Castro told us that 6,000 Cuban eye doctors will perform 100,000 eye operations on poor Venezuelans this year. In addition to providing care, Castro told us that his doctors also provide an education, teaching Venezuelans to be doctors both in Venezuela and in Cuba. Castro then read off to us a list of the many countries in which Cuban doctors are living and serving from East Timor to Haiti and including many African and Latin American countries. It must be noted that Castro's motives are not entirely altruistic. Our Embassy in Caracas informed me that in exchange for these medical services he is given a generous supply of free oil and his doctors are paid a subsidy which is remitted back to the state. Yet it is doubtful that Castro's arrangements with poorer countries such as Haiti bring similar financial rewards. While there is much to criticize about Castro and his regime, this humanitarian effort is to be respected. To underscore the personal importance of this effort to him, Castro ended his discourse by stating that ``history will vindicate us.'' When we left Castro we proceeded to the airport and flew to Caracas, Venezuela. On Wednesday, August 17, we had breakfast with our Ambassador in Caracas, William Brownfield. Mr. Brownfield is a career diplomat with an obvious passion for his work and a deep knowledge of his subject. Ambassador Brownfield sets forth a pragmatic approach to Venezuela. While fundamental differences exist between our two countries, he argues, we can and must cooperate on those issues where we share an agenda, namely oil and drugs. On oil, Venezuela lacks the infrastructure to refine more than one- fourth of the oil it produces. Venezuelan oil is heavier than most and needs special refineries, and these refineries are located in the United States. In addition, Venezuela is relatively close to the United States when compared to other United States suppliers and other Venezuelan markets. Thus continued cooperation on oil is imperative for both nations. Secondly, both nations share an interest in combating drugs. There have been some recent conflicts over the specifics of fighting drugs. Only a week before our trip, President Chavez announced that he was suspending all cooperation with our DEA. The United States, in turn, suspended the visas of three high ranking Venezuelan law enforcement officials. Yet beneath the conflict, the shared interests and goals remain and can serve as a motivation to overcome these differences and proceed with the important work of drug interdiction. The Venezuelan President, Hugo Chavez, has been criticized for governing in an anti-democratic fashion. While in Caracas, I wanted to hear directly from those who held this view and arranged a meeting with an activist named Alejandro Plaz and one of his associates. Mr. Plaz is the President of Sumate, a Venezuelan non-governmental organization dedicated to electoral observation and what he calls ``democratic observation''--i.e. monitoring the leading indicators of a healthy democracy such as human rights and freedom of speech. These activities have stirred the ire of President Chavez's regime. Mr. Plaz has been charged with conspiracy to destroy the Republican system in Venezuela and if convicted would face 8 to 16 years in prison. The core element of the allegation of ``conspiracy'' is that Mr. Plaz accepted a $31,000 grant from the National Endowment for Democracy. The Venezuelan Government argues that since teaching about democracy is a political activity, and since political activities cannot be funded from abroad, Mr. Plaz has violated the law. By all accounts, however, including an analysis conducted by the American Bar Association, this is a political trial aimed to intimidate a man perceived to be a political opponent. Mr. Plaz also detailed how Chavez loyalists in the legislature used a simple majority vote to change the rule requiring a supermajority to amend certain basic laws of the nation. Having thus lowered the threshold, the legislature has used simple majorities to expand the number of seats on the Supreme Court and pack these seats with Chavez loyalist as well as to fill the election boards with Chavez loyalists. We next drove to the Venezuelan foreign ministry where we met with Venezuelan Foreign Minister Ali Rodriguez Araque and the Venezuelan Minister of Interior and Justice Jesse Chacon. Foreign Minister Araque started things on a positive note by stating that despite the differences which the United States and Venezuela may have in the political sphere, our two nations have many shared interests in oil and drug interdiction and must emphasize our commonalities. Interior Minister Chacon picked up on the theme of drug interdiction and went on at some length about Venezuela's efforts to fight the use of its territory as a transit point for Columbian drugs. According to the Minister, Venezuelan authorities seized 57 tons of cocaine and heroin in 2004 and 42 tons in 2003. He then spent some time discussing the recent controversy between our DEA agents in Venezuela and the Venezuelan government. He set forth his government's side of the story, and focused on alleged inappropriate actions by our DEA agents including the use of ``controlled deliveries'' to ship illegal drugs out of Venezuela in contravention of Venezuelan law. Immediately following this meeting, we drove to Miraflores Palace where I met with Venezuelan President Hugo Chavez. We were joined by the two Ministers with whom I had previously met as well as U.S. Ambassador Brownfield. President Chavez began the meeting with an extended discussion about the importance of drug interdiction to both of our countries. He noted that drugs are a destabilizing force in the countries victimized by them. He then spoke about the deteriorating relations between the United States and Venezuela. He expressed concern in particular about statements coming from the U.S. government that he is trying to destabilize Latin America. He also said he is concerned about his U.S. ambassador's lack of access to the White House and high ranking executive branch officials. Chavez commented about having met President Clinton on three occasions, one of which was at the United Nations. President Chavez believed that his relations with President Clinton were good and would like to see similar relations with President Bush. President Chavez also spoke about Venezuela's oil resources and his plans for billions of dollars of investments to increase oil production. After the President's extensive opening statement, I responded that good relations between the United States and Venezuela are very important to both countries. I told the President that we appreciate his help in stopping the flow of drugs from Columbia and South America. I also noted the importance of Venezuelan oil to the United States and the world. I expressed my view that United States. companies would be willing to invest substantial sums to improve Venezuelan oil production and help them produce oil for the world and help Venezuela generate revenue money to fight poverty. I then took up the dispute between Venezuelan narcotics officers and the DEA and suggested that all facts should be put on the table to determine exactly what occurred so that both parties are then in a position to decide what steps could be taken to resolve the dispute. President Chavez said that this was a good idea and that consideration ought to be given to having a new agreement on drug interdiction. President Chavez later spoke at some length about President Castro and his efforts to provide extensive medical personnel to Venezuela. Chavez commented that Castro had discussed my meetings with Castro and thought that they were productive. Chavez then returned to the topic of oil and pointed out that a Venezuelan company, presumably Citgo, had 13,000 gas stations and 8 refineries in the United States. He then reiterated his concern about statements from the U.S. regarding Venezuela destabilizing Latin America. Chavez said that public opinion in Venezuela was running against the United States because of these statements. At the conclusion of our meeting, President Chavez agreed that it would be useful for his Foreign Minister and Minister of the Interior to meet with our Ambassador the following week to try to resolve United States/Venezuela differences on drug enforcement. Previously, all of our Ambassador's efforts to arrange such a meeting had been rejected. On Thursday, August 18 we flew to Liberia, Costa Rica. Our first meeting that afternoon focused on the drug issue. We sat down with Paul Knierim, our top DEA agent in Costa Rica, and his Costa Rican counterpart, Allen Solano, who is the Director of the Costa Rican Drug Control Police. Although no drugs are grown or processed in Costa Rica, the nation and the rest of Central America serve as a crucial transit route for smugglers bringing South American drugs to the markets in North America and Europe. Drugs are transported overland on Costa Rica's roads, by sea through both its Pacific and Caribbean territorial waters, as well as over Costa Rica's airspace in private planes and on passenger jets. These operations are often sophisticated. In one smuggling ring that was uncovered, re-fueling ships met the smuggling boats at fixed points along the Costa Rican coast so that the boats would not have to risk detection by coming ashore. The region faces its own set of issues. The Trans American Highway, an important overland route for drugs, passes through this region and has been the site of increased drug traffic in recent years. Also, the Daniel Oduber international airport outside of Liberia has seen growing passenger traffic in recent years, especially to and from the United States, as the local tourist industry and real estate markets have developed. This increased traffic provides an opportunity for smugglers to blend into the crowd. Thus authorities have found that drug traffickers are sending more smugglers on the planes to transport drugs northward. These ``mules'' typically transport the drugs by placing them in latex and swallowing them, a practice which can prove fatal if the latex bags break. I was pleased to learn that in Costa Rica cooperation between our DEA and the local authorities is excellent. We have five of our agents stationed in country where they work with the Costa Ricans to investigate and interdict drug shipments. Success is difficult. Mr. Knierim of our DEA told me that they know they are having an impact, since their actions force the smugglers to change their tactics. But he also realizes that they have not been able to defeat the smugglers. The battle continues. Later in my visit, I met with Dr. Rolando Herrero, a leading cancer researcher who has been a pioneer in the exploration of the connection between viral infections and cancer. In particular, in a series of studies conducted in the 1980s and early 1990s, Dr. Herrero demonstrated a connection between the Human Papiloma Virus, HPV, a sexually transmitted disease, and cervical cancer. Having proven this connection, Dr. Herrero is now conducting a trial of an HPV vaccine that could prevent the spread of the virus and thus significantly lower the incidence of cervical cancer. This vaccine trial received $5 million in NIH funding through the National Cancer Institute this year. Given the prevalence of the HPV virus among sexually active young Americans, and the enormous expense of pap smears and treatments, this trial has obvious importance for the protection of women's health in the U.S. Dr. Herrero has conducted his studies, including the current vaccine trial, in the Guanacaste Province in northwest Costa Rica. He explained that because of the relative stability of the local female population aged 18-25, this region allows for the extensive yearly follow up that would not be possible in the more mobile societies of America and Europe. As a result of his extensive prior work in the region, Dr. Herrero also has an impressive infrastructure in place to allow for effective follow-up studies by a highly professional team of 150 scientists and health care workers who know the local population and its habits well. Finally, we drove to the offices of Mr. Bernardo Rojas, the Director of Ecodesarollo, a private company which has been given a concession from the Costa Rican government to develop an area known as the Papagayo Peninsula on the Pacific Coast of northern Costa Rica. The work being done by Mr. Rojas and this innovate public/private partnership can serve as a model for other countries wishing to develop their tourism industry while preserving the environment and respecting local populations. Specifically, the Ecodesarollo Company has been given the rights to develop and manage an 840 hectare peninsula for a period of 49 years, with a right to renew the concession for another 49 years. In return, however, the company must meet a series of significant requirements. First, it must build 9 hotels and 3 golf courses in this area within a 28-year period which began in 1999. To date, two hotels and one golf course have been built to very impressive standards and have begun attracting tourists from around the world. While conducting extensive construction, the developers are required to preserve the environment. They must preserve 70 percent of the green areas and set aside two conservation zones. They have also put into place extensive water treatment and recycling and a project to repopulate the local forests with local species of plants. The developers have focused on the prevention of forest fires with great success. Before the project began, there were 18 consecutive years of forest fires during the dry season. Since development began, there have been six dry seasons without any fires. Finally, they must assist the local population. The company is required to build 2,000 residential units in the region. It must also provide additional funding and programs to the local schools and colleges. While in Costa Rica I learned that the day after my meeting with Venezuela's President Chavez, Secretary of Defense Donald Rumsfeld made some critical comments about the Venezuelan leader during a visit to Peru. I was concerned that Mr. Rumsfeld's rhetoric had the potential to erode the progress we had made with President Chavez during our visit. Accordingly, I wrote to Secretary Rumsfeld and informed him of my meeting with Chavez and my belief that a window of opportunity had been opened to resolve our disagreement with Venezuela over drug interdiction policy. I suggested that, at least for the time being, we should have a moratorium on adverse comments about Venezuela. Our next and final destination was Mexico City, Mexico. Given our long common border, Mexico presents the greatest challenges and opportunities in the war on drugs and terror and on the immigration issue. Good relations with Mexico are crucial to both of our nations, and I was very glad for the opportunity to learn about these issues first hand. On my first morning in Mexico we were met at our hotel by our Ambassador, Antonio Garza. Prior to his assignment to Mexico, Ambassador Garza was elected Railroad Commissioner of Texas and appointed by then Governor Bush to be Texas's Secretary of State. Ambassador Garza has a detailed knowledge of the issues facing our two countries, and I believe he is serving us very well in Mexico. From the hotel we drove to the Mexican Foreign Ministry for a breakfast with a group of Mexican government officials to discuss the two most important issues before us: drugs and immigration. The group included Geronimo Gutierrez, Mexico's Under Secretary of Foreign Relations for North America, and Eduardo Medina Mora, the Director of Mexico's Center for National Security Investigations, Mexico's equivalent of the CIA. I began our breakfast by asking my hosts about the problem of the drug cartels and the recent violence in Nuevo Laredo, a town just south of the border with Texas, where rival cartels have been fighting each other in the streets with machine gins and rocket launchers. Mr. Mora informed us that the Mexican authorities have successfully prosecuted the leaders of some of the country's largest drug cartels, including a major cartel in Baja, California and the Gulf Cartel operating south of Texas. I was also informed that the U.S. has been providing crucial assistance in this effort. We have helped to train, equip and fund a new, professional Federal police force to replace its corrupt and inefficient predecessor. The new force currently stands at 7,000 members. According to Mr. Mora, the next big challenge facing the Mexicans in the war on drugs is to replicate at the state and local level what they have accomplished at the Federal level by replacing ineffective and/or bribed police forces with professional police forces capable of winning the fight against the cartels. I was informed that the U.S. can be helpful in this effort much as we were in building the Federal police by providing money, equipment and training. Extradition of drug lords to the U.S. is a key component in this fight against the drug cartels. Mexican prisons fail to deter the drug lords, and there are stories of many who, through bribes, have been able to get everything they need to manage their empires from behind bars. I have been told repeatedly, however, that Mexican drug lords are terrified by the prospect of being jailed in U.S. prisons where they serve hard time. Unfortunately, the Mexican courts have created a serious impediment to extradition to the U.S. Like many European countries, Mexico is opposed to the death penalty and will not extradite an individual to the U.S. if that individual may face the death penalty upon conviction. Yet the Mexican courts have extended this policy in a unique way. Three years ago the Mexican Supreme Court held that life imprisonment without the possibility of parole is the equivalent of the death penalty since the prisoner will die in jail, and therefore a prisoner who would face a life sentence in the U.S. cannot be extradited. Other Mexican courts have gone so far as to declare that a 20-year sentence is the equivalent of the death penalty when imposed on a 60-year old convict, since someone of that age will likely die in prison. My Mexican hosts expressed displeasure with these court decisions and tell me they will seek their review. Still, despite these setbacks, extraditions are at their highest level ever, exceeding thirty a year in recent years. I suggested to my Mexican counterparts that we in the Judiciary Committee can work with our Department of Justice and local prosecutors to encourage them to file charges in a way that will facilitate extradition. U.S. prosecutors have secured the extradition of murderers from Europe by taking the death penalty off the table, and we can take similar steps to alleviate the concerns of the Mexicans. For example, Mexican law allows for a sentence as long as sixty years in the case of ``aggravated homicide.'' Thus if U.S. prosecutors agree not to seek a penalty greater than 60-years imprisonment, or to seek life imprisonment but with the possibility of parole, it may well facilitate the extradition while still providing a serious sentence for the offenders. On the immigration front my hosts assured me that Mexico is making a serious effort to reduce the traffic of illegal immigrants from Mexico into the United States. These efforts are largely focused on limiting the flow of illegals from third countries as opposed to the flow of Mexicans themselves. Before they seek to illegally enter the United States, hundreds of thousands of would-be immigrants from South and Central American must first illegally enter Mexico. But Mexico is cracking down on these illegals and is deporting them back to their home countries in large numbers. I was informed that last year the Mexicans deported over 200,000 such illegals. The Mexicans are also requiring visas for visitors from countries such as Brazil and Ecuador who did not previously need them. The Mexicans have also agreed to permit the U.S. to implement an interior repatriation program. Typically, when we catch an illegal immigrant, we deposit them on the other side of our border with Mexico where they are tantalizingly close to the United States and likely to try again to enter. Under the interior repatriation program, we fly those illegals who wish it all the way back to their home towns and villages. Once home, far away from the border, they are far less likely to try again. So far, this program has returned 13,000 illegal immigrants to their homes in Mexico. From the Mexican Foreign Ministry we drove to the United States Embassy, where I was greeted by over 30 representatives of the Embassy and other U.S. agencies for a briefing on our drug and counter-terror efforts. This briefing largely confirmed what I had learned earlier in the day from the Mexican officials. Larry Holifield, the regional director of the DEA for Mexico and Central America, described the great cooperation between our DEA and their Mexican counterparts, including permission to conduct wiretaps and joint operations where vetted Mexican police units act on U.S. intelligence tips to take down members of the drug cartels. He and others spoke about the help we have provided to the Mexicans in building their police force and how effective this has been. Greg Stephens of the Department of Justice confirmed that the Mexicans are getting better on extradition. As of 6 years ago the Mexicans had never extradited a Mexican citizen to the United States Last year the Mexicans extradited 34 people to the United States and are on track to extradite a similar number this year. Renee Harris of U.S. Customs and Border Control spoke about the internal repatriation program and agreed that it was working, although she would like to see more help from the Mexican government in publicizing the program to its citizens. In response to my question about what more we can to stem the flow of illegal immigrants, Ms. Harris responded with a familiar refrain: we can provide more technology, equipment and training. Following this meeting, we drove to the offices of the Mexican President, Vicente Fox. Before our meeting with the President began, I had the opportunity to sit down with Mexican Attorney General Daniel Francisco Cabeza de Vaca. I asked Attorney General Cabeza de Vaca about the extradition issue and if it would help if we agreed not to seek a sentence of longer than 60 years for anyone extradited to the United States from Mexico. The Attorney General thought this would help, and told me that he had discussed this topic directly with Attorney General Gonzales. He also believed that the problematic Supreme Court decision would be reviewed. I asked the attorney General about the situation in Nuevo Laredo, and he expressed confidence that the situation was improving. He told me that the Federal Government had sent over 1,500 police to the city and that some important arrests were made just last week. He praised the sharing of intelligence with the United States which has helped them to identify and detain targets. He said there were two phases to combating the violence in Nuevo Laredo. The first phase was to ensure the permanent presence of the Federal police and the army in the City. This has already been accomplished. The second phase was to improve local law enforcement and create a new and professional local police force which was not owned by the cartels. He expected to see a reduction in the level of violence very soon. The Attorney General also asked for my assistance in the matter. He told me that the warring cartels were using very high powered weapons, including 50 caliber machine guns and rocket launchers, and that these weapons were coming from the United States. I agreed to contact the ATF to see what could be done to stem the flow of such illegal weapons to Mexico. Next I was received by President Vicente Fox. Fox started off our meeting by telling me that it is vital for the United States, Canada and Mexico to work together on a variety of problems including immigration, counter narcotics, and terrorism. He noted that our three nations were losing jobs to Asia and needed to work jointly to bolster our economies. On the issue of violence in Nuevo Laredo and elsewhere, the President told me that Mexico has both a short term and a long-term approach. In the short term, Mexico has jailed 40,000 members of the drug cartels in a 4-year period. Among those in prison are six of the country's major drug lords. The President complained, however, that even while in jail some drug lords have been able to continue to run their syndicates by bribing prison guards for access to telephones and other means of communication. Fox then spoke in more general terms about the problem of police corruption at the local level. He noted that police earn a salary of $600 a month but are offered bribes in the thousands. In Nuevo Laredo alone, 1,100 policemen were fired from their jobs last month for corruption. The Federal Government has moved 1,000 policemen into the area to stem the violence. In the long term, President Fox told us that he is trying to foster greater cooperation between the Mexican Federal Government and the Mexican states. To do so would require passage of legislation that has long been pending in the Mexican Congress. President Fox's party controls neither house of Congress and so far this legislation has not been enacted. To emphasize the importance of better cooperation from local police, President Fox pointed out that there are approximately 400,000 local police and only 10,000 Federal police. He also noted that approximately 95 percent of all crime consists of violation of state and local laws, while only 5 percent is Federal. On the issue of extradition, President Fox told me that he would like to extradite more criminals to the United States but is limited by what his Supreme Court has done. While he would like to see this opinion overruled, he is sensitive not to take any action which would be counter productive. But he is working hard in the fight against drugs. He told me that earlier that day he spent 2 hours with his counter narcotics experts. He plans to meet with the governors of Arizona and New Mexico to discuss the states of emergency that they have declared in response to the influx of illegal drugs and immigrants. On the violence in Nuevo Laredo, President Fox stated that the cause was the fight between rival drug cartels for control of the city. He is using his military in Nuevo Laredo. I told President Fox that I was not optimistic that the war over the drug cartels could be won having observed the problems in Colombia since the early 1980s and having now seen the problems in Venezuela and Costa Rica. I asked the President if he felt that war was winnable. President Fox replied that it would be very difficult to win the war on drugs as long as the demand for drugs remains strong. But he believes that the fight must continue.

Mr. SPECTER

Mr. SPECTER. Mr. President, this afternoon, the Senate begins the debate on the confirmation of Judge John G. Roberts, Jr., to be Chief Justice of the United States. It is not an overstatement to note this is a historic debate. At the age of 50, Judge Roberts, if confirmed, has the potential to serve as Chief Justice until the year 2040 or beyond. Today, Justice John Paul Stevens, at the age of 85, continues to serve. If you project Judge Roberts ahead 35 years, it would be to the year 2040. Obviously, by that time it will be a very different world. There will be very different issues which will confront the Court with the advances in technology, with the advances in brain scanning, key questions as to how far the privilege against self-incrimination goes to scan someone's brain. Will it be like a blood test and fingerprints or will it be viewed as invasive and a violation of a right to privacy? Those are the kinds of issues which Judge Roberts will confront if confirmed as Chief Justice. He also has the potential to project a new image on the Supreme Court. That Court has been buffeted by a whole series of 5-to-4 decisions. Candidly, some of them are inexplicable, where you have, this year, the Supreme Court of the United States saying that Texas could display the Ten Commandments outdoors, but Kentucky could not display the Ten Commandments indoors. There are some minor differences, but it is hard to understand how the Ten Commandments can be shown in Texas but not in Kentucky by a 5-to-4 vote. Under the very important legislation of the Americans With Disabilities Act, the Supreme Court had two 5-to-4 decisions 3 years apart. One, in a case captioned Garrett v. University of Alabama, in 2001, the Supreme Court declared the title unconstitutional which dealt with discrimination against the disabled in employment. Three years later, in Tennessee v. Lane, the Supreme Court upheld the constitutionality of another title of the Americans with Disabilities Act which dealt with access to public accommodations. We have seen a proliferation of opinions with multiple concurrences, making them very hard to understand. Earlier this year, the Judiciary Committee took up the issue of what was happening in Guantanamo, and a study was undertaken on three opinions handed down by the Supreme Court in June of last year. On one case, they couldn't get a majority, a plurality of four, so there was no holding. In the other two cases, there were concurrences and dissents. You have a pattern which exists where Justice A will write a concurring opinion, joined by Justice B, and Justice B will write a separate concurring opinion, joined by Justice A and Justice C. This is an issue which was considered during the course of Judge Roberts' hearings. It is one where a new judge, a new Chief Justice at the age of 50, will have an opportunity to make some very systemic changes in the way the Court functions. When Judge Roberts was questioned about his ability to handle this matter--first during the informal meeting in my office and later in the hearings--he said he thought he could handle it because, in his many appearances before the Supreme Court, some 39 in number, it was a dialog among equals. I was impressed by his concept of a dialog among equals, that he considered himself as a lawyer arguing before the Court to be dealing with equals. I have had occasion three times to appear before the Supreme Court, and it didn't seem to me like a dialog among equals. But when you have been there 39 times and you know the Justices as well as he does--and the word is that the Justices very much applaud his nomination to be Chief Justice--he has the potential almost from a running start to bring a new day and a new era to the Supreme Court. That is a very attractive feature about his projection as Chief Justice. We know the famous historical story about Earl Warren's becoming Chief Justice in 1953. The Court was then faced with Brown v. Board of Education, the desegregation case. There were many disputes in the Court at that time. They had to carry the case over. Chief Justice Warren was able to get a unanimous Court, which was important, so that contentious issue was one where nine Justices agreed and came down with an opinion which was obviously difficult to implement but had a great deal more stature because of its unanimity. So here is an extra bonus for the Court, an extra bonus for America, if confirmed as Chief Justice: the potential that Judge Roberts has to promote a new day and a new era for the Court administratively. On his qualifications, Judge Roberts was rated ``well qualified'' by the American Bar Association. It is understandable, since he was a summa cum laude graduate of Harvard College, magna cum laude graduate of Harvard Law School; had a very distinguished career as assistant to Attorney General William French Smith, after serving as a clerk to a distinguished Second Circuit judge, Henry Friendly; then served as clerk to then Associate Justice William Rehnquist; then, following his work with Attorney General William French Smith, became associate White House counsel; practiced with the prestigious law firm of Hogan & Hartson--Hogan & Hartson was prestigious before Judge Roberts got there but a lot more so after he was there and, frankly, after he left--then his status as a premier appellate lawyer; then the Supreme Court with some 39 cases. It was my view that Judge Roberts has a broad, expansive understanding of the application of the Constitution. He said: They --referring to the Framers-- were crafting a document that they intended to apply in a meaningful way down through the ages. While he would not quite accept my characterization of agreement with Justice John Marshall Harlan on the document being a living thing, he did say that the core principles of liberty and due process had broad meaning as applied to evolving societal conditions. He is not an originalist. He is not looking to original intent. But he sees the Constitution for the ages and adaptable to evolving societal conditions. On the issue of how many questions he answered before the Judiciary Committee, I believe he answered more than most but, candidly, did not answer as many questions as I would like to have had him answer. I will detail that in the course of this brief presentation. I have observed, in the 10 Supreme Court nominations where I have had the privilege to participate on the Judiciary Committee, that nominees answer about as many questions as they believe they have to in order to be confirmed. But it has become an evolving process. A view of some of the history of Supreme Court nominations is relevant to see what has happened, what is in the course of happening, and what the next nominee may face. The Senate Judiciary Committee has conducted hearings on nominees only since 1916--that is, for the Supreme Court--with the nomination of Louis Brandeis by President Woodrow Wilson. Justice Brandeis did not appear. The first time a nominee appeared before the committee was in 1925. The nominee was Harlan Fiske Stone. An issue had arisen as to whether there was a political motivation in the controversial investigation into the conduct of Judge Burton Wheeler. Justice Stone asked to appear to respond to the allegations. He did so, and he was confirmed. In 1939, President Roosevelt nominated Felix Frankfurter, who initially refused to appear personally, but after being attacked for his foreign birth, his religious beliefs, and his associations, Frankfurter decided to appear. He read from a prepared statement, refused to discuss his personal views on issues before the Supreme Court. His hearing lasted only an hour and a half in duration and did not set a precedent for future nominees. In 1949, Sherman Minton, who had been a U.S. Senator, became the only Supreme Court nominee to refuse to testify before the Judiciary Committee. Minton wrote to the committee: I feel the personal participation by the nominee in the committee proceedings related to his nomination presents a serious question of propriety, particularly when I might be required to express my views on highly controversial and litigious issues affecting the Court. Notwithstanding Minton's refusal, the committee conducted its hearing in Minton's absence and confirmed him. It wasn't until 1955, with the nomination of Justice John Marshall Harlan, that nominees have appeared regularly before the Judiciary Committee. Only since 1981, following my own election in 1980, have the hearings taken on a little different approach as to what the nominees will answer. Justice O'Connor declined to answer many questions. The next nomination hearing was that for Chief Justice Rehnquist, who was a sitting Associate Justice. Initially Justice Rehnquist declined to appear, then was advised that if he wanted to be confirmed, he would have to appear. It was a contentious hearing. As the record shows, Chief Justice Rehnquist was confirmed by a vote of 65 to 33. He did answer a great many questions, although he did not answer a great many questions. I asked him a bedrock question as to whether Congress had the authority to take away the jurisdiction of the Supreme Court of the United States on the first amendment. He declined to answer. Overnight a Senate staffer brought me an article which had been written by a young Arizona lawyer in 1958 by the name of William H. Rehnquist which appeared in the Harvard Law Record. The young Arizona lawyer, William H. Rehnquist, was very tough on the Senate Judiciary Committee for the way it conducted its hearings for Charles Whittaker. Charles Whittaker was from Kansas City. There are two Kansas Cities--one in Kansas and one in Missouri. Justice Whittaker lived in one and practiced law in the other. A big to-do was made about the fact that it would be an honor to two States if he was confirmed, where he worked and where he lived. This young lawyer from Arizona, Bill Rehnquist, didn't think that amounted to a whole lot. He chastised the Senate Judiciary Committee for not asking about due process and other constitutional issues. So in the face of his declination to answer my questions on taking jurisdiction away from the Supreme Court on the first amendment, I asked him if he was that William H. Rehnquist from Arizona. He said, yes, that was true, he was. I said: Did you write this article? He said: Yes, I did. Then he added quickly: And I was wrong. So that didn't end the issue because having the authority of this young lawyer from Arizona, pretty good reasoning, I pursued the questions. Finally, he answered the question on could the Congress take away the jurisdiction of the Court on the first amendment. He said, no, the Congress could not do that. So naturally I then asked about the fourth amendment, search and seizure. Could the Congress take away the jurisdiction from the Supreme Court on search and seizure. He declined to answer that. I went to amendment five on privilege against self-incrimination. Again he declined. And then six, on right to counsel, and seven, and eight on cruel and unusual punishment. Then I asked him a follow-up question: Why would he answer on the first amendment but not on any of the others? As you may suspect, he refused to answer that question as well. It was my judgment that Chief Justice Rehnquist passed muster. It was a battle. And then Justice Scalia came before the Senate following Chief Justice Rehnquist. Justice Scalia would not answer any questions. As I have said--and really too apocryphal--Justice Scalia wouldn't even give his serial number. He would only give his name and rank. Prisoners of war are compelled to answer questions, but only three--name, rank, and serial number. But as I have said, and I have said this to Justice Scalia in interpersonal banter, he wouldn't even give us his serial number. But it was perhaps an exhausted Senate following the confirmation of Chief Justice Rehnquist or perhaps it was Justice Scalia's superb academic and professional record, he would not even answer the question as to whether he would uphold Marbury v. Madison, a decision of the Supreme Court of the United States in 1803 where the Court undertook the authority to interpret the Constitution and to interpret the law and to be the final arbiter of the Constitution. Then in 1987 the Judiciary Committee considered the nomination of Judge Bork from the District of Columbia Court of Appeals. Judge Bork had very extensive writings in law reviews and books, many speeches, had a very extensive paper trail, a controversial paper trail. Judge Bork had written that absent original intent there was no judicial legitimacy, and absent judicial legitimacy, there could not be judicial review. Understandably, the committee had many questions for Judge Bork, and in that context Judge Bork felt compelled to answer the questions. In the interim between Justice Scalia and Judge Bork, Senator DeConcini and I--Senator DeConcini being another member of the Judiciary Committee--had prepared a resolution to be submitted to the Judiciary Committee which would delineate an appropriate line of questions for nominees in trying to set some standards and trying to set some parameters as to what we felt, what questions were appropriate and what questions had to be answered to warrant confirmation. After the proceedings as to Judge Bork, we felt it unnecessary to move ahead with that kind of a resolution. The nomination of Justice Kennedy followed, and Justice Souter and the other Justices, Justice Thomas, who answered a great many questions, and then the nomination of Justice Ginsburg and the nomination of Justice Breyer. These nomination proceedings found the nominees answering some, not answering others, but essentially following the rule that they answered about as many questions as they felt they had to. Judge Roberts answered more questions than most. He answered the question about the right of privacy in a very positive manner in response to questions which I asked, which Senator Kohl asked, and which others answered. He said there was a right of privacy. He said the decision of the Supreme Court of the United States in Griswold v. Connecticut was a correct decision and he extended the contraception issue beyond marriage to those who were single, saying that right of privacy existed, and upheld the propriety of the decision of the Supreme Court in the Eisenstadt case. Other nominees had refused to answer such questions. I felt that Judge Roberts did not answer some questions which I thought should have been answered. For example, I asked him about the appropriate standard for testing constitutionality under the commerce clause. We found in United States v. Lopez in 1995 that the Supreme Court of the United States had cut back on congressional authority of the Congress which had been in existence for almost 60 years. Then in the case of the United States v. Morrison, the Court struck down portions of legislation designed to protect women against violence. They did so on the stated principle that they disagreed with the congressional ``method of reasoning.'' When I heard about that rationale, it seemed to me to be inappropriate. What was the Court's method of reasoning which was superior to the congressional method of reasoning? I find the matter of unique historical importance that the columns of the Senate are lined up exactly evenly with the columns of the Supreme Court. Interestingly, in an early draft of the Constitution, the Senate was given the authority to appoint Supreme Court Justices. I have seen or visualized, conceptualized a certain parody with those columns lined up exactly the same. When I read the opinion of the Supreme Court 5 to 4 in the United States v. Morrison, striking down portions of the legislation to protect women against violence, I wondered what was there in the Supreme Court which led them to a method of reasoning superior to a congressional method of reasoning? What happens when you move across the short space of green between the Supreme Court columns and the Senate's columns? As the dissent pointed out, the opinion of the Court must have presumed some unique form of judicial competency. If you have a unique form of ``judicial competency,'' you must have a form of congressional incompetency which is hardly fitting in an analysis of cases and facts and a determination of constitutionality with the separation of powers between the Congress and the Court. In the case of United States v. Morrison, the factual record exists ``showing reports on gender bias from the task force in 21 states and 8 separate reports'' issued by Congress in its committees over a long course of time. The dissent detailed all of the evidentiary basis and then concluded ``there was a mountain of evidence.'' When I wrote to Justice Roberts by letter dated August 8 and August 23, I had alerted him to this case and this question. At this point, I ask unanimous consent the full text of those letters be printed in the Record.

Mr. SPECTER. At this juncture, it might be appropriate to note that Republicans have the floor until 2:30, and if one of my colleagues is to come over, I may speak a more abbreviated period of time, we will have time for another speaker to take the floor before Senator Leahy is recognized under the unanimous consent request at 2:30. I asked Judge Roberts the questions which I had set forth in the letter that I referred to, What is an appropriate jurisprudential standard on the commerce clause? Is it the one which has been followed for so many years, which is a substantial basis for the congressional decision, or is it some ``method of reasoning'' which is impossible to understand even in the context of a record from a task force in 21 States and 8 separate reports to the Congress? Judge Roberts declined to answer the question. I pressed him and finally said we would have to agree to disagree. But it seems to me when you have a question about philosophy, about judicial approach, about what is the proper standard to apply on constitutionality of a congressional exercise of authority under the commerce clause, that is the kind of question which should be answered, not sufficient to vote ``no,'' but candidly the beginning of being a little bit tempting. Then I asked him about the jurisprudence of the Supreme Court in the two cases I have already referred to under the Americans With Disabilities Act. In Garrett v. Alabama, in the year 2001, the Supreme Court struck down a title of the Americans With Disabilities Act which dealt with discrimination in employment involving Ms. Barrett, who had breast cancer. And then, 3 years later with an identical record--the records are the same in all titles of the Americans With Disabilities Act--you had a striking case of a paraplegic, a case called Tennessee v. Lane, where the parapalegic had to crawl up the steps to a courtroom. The issue there was whether there was discrimination under the Americans With Disabilities Act on access. The Supreme Court of the United States, in a 5-to-4 decision, said that was constitutional. It is inexplicable how, given two titles of the Americans With Disabilities Act with identical records, the Court could find one to be constitutional and the other to be unconstitutional. I asked Judge Roberts about that. Again, he declined to answer. The Supreme Court in both Garrett and Lane adopted a brand new standard for testing constitutionality of congressional action under section V of the 14th amendment as contrasted with the right of the States for immunity from suit under the 11th amendment. The Supreme Court of the United States picked up a doctrine which they had adopted in a case called City of Boerne v. Flores. In 1997, when the Supreme Court overturned the Religious Freedom Restoration Act of 1993, legislation which had been very carefully considered by the Congress of the United States, the Supreme Court said that act was unconstitutional because it did not satisfy a test of congruence and proportionality. When I read that standard, I wondered what it meant. Congruence and proportionality. Where did the Court get this standard? They plucked it right out of thin air. There was no basis for this kind of a standard. Justice Scalia, in dissenting in the Lane case, said it was a ``flabby test'' which was put into effect in order to allow the Supreme Court to engage in policymaking decisions, in effect, judicial legislation. The dissenting opinion by Justice Scalia in the Lane case took the Court to task for an ``ill-advised opinion'' where they acted as the taskmaster of the Congress to see that the Congress was doing its homework. Like the Supreme Court decision in Morrison attacking our method of reasoning, it seemed to me the Court had gone much too far in challenging the competency of the Congress in striking down congressional authority. Again, I ask Judge Roberts, what about this test of congruence and proportionality? Does it have any basis in the law? Is there any rationality in what the Court did in these two cases under the Americans with Disabilities Act? Again, he declined to answer. After talking to a number of my colleagues, the Senate Judiciary Committee will give very serious consideration to legislation which would give the Congress standing to defend the constitutionality of the statutes which it enacts. Standing is a very delicate subject and there are a great many cased where people seek to go to court to enforce the Endangered Species Act or to enforce a variety of laws. Congress has the authority to grant standing. It seems to me that it might be a good occasion for Congress to exercise this authority to grant standing to Congress. Why should we rely upon the litigants to defend the constitutionality of these enactments which we pass very carefully and very laboriously, as we did the Religious Freedom Restoration Act of 1993 or the Americans with Disabilities Act? That is a move which might have material implications on reasserting the balance of power and the separation of power between Congress and the Court. If we have standing, we can have our own counsel, we can proceed to brief the cases, we can proceed to have someone argue it on our behalf. We may be able to stop the flood of actions by the Supreme Court which have reversed acts of Congress, the actions by an activist Court engaged in judicial legislation and doing it under the guise of illusory standards such as congruence and proportionality, standards plucked out of thin air. They disagree with our method of reasoning when there is no basis for asserting superiority of reasoning by the Supreme Court over the Congress. When we talk about this judicial activism, we are talking about a form of activity which is abhorred by both the right and the left on the political spectrum. My distinguished colleague, Senator Hatch, who preceded me as chairman of the Judiciary Committee, and I have discussed the decision of the Supreme Court in striking down the Religious Freedom Restoration Act of 1993, and it is one which candidly defies logic. But the Court decided to undertake that restriction of congressional authority, and it did so in that case. The issue of how many questions a nominee must answer will be before the Senate again on the next nomination to replace retiring Justice Sandra Day O'Connor. The refusal of nominees to answer questions where the case is likely to come before the Court is, in my opinion, well- founded. Judge Roberts answered more questions than many. Justice Scalia, for example, as I said, would not even comment on Marbury v. Madison. Judge Roberts did not answer questions where, in his judgment, the case was likely to come before the Supreme Court. If the case is to come before the Supreme Court, as a matter of judicial independence, the nominee ought not to answer that question. I said in advance of the hearings, and I said during the hearings, that any Senator had a right to ask any question which he or she chose, including how a case would be decided, and that the nominee had the right to answer or decline to answer as the nominee chose, and that it was my view that if a question did involve a question on a case likely to come before the Court, the nominee was within his rights to decline to answer. The public does not understand the issue of judicial independence and the ramifications of answering a question on a case likely to come before the Court. The public in the opinion polls wanted to know what Judge Roberts thought about a woman's right to choose. The public wanted to know whether he would uphold Roe v. Wade or overrule Roe v. Wade. It seems to me this is a classic case of the irresistible force meeting the immovable object. The immovable object is judicial independence--not to make a commitment in advance on a case likely to come before the Court--and the sort of irresistible object is the public interest in knowing. During the course of the hearings on Judge Roberts, Senator after Senator was moving right into the area of wanting to know how Judge Roberts would decide a case. I pressed Judge Roberts on the issue of stare decisis and on the value he would place on precedent, on Planned Parenthood v. Casey, on some 38 cases where the Supreme Court of the United States had an opportunity to overrule Roe and declined to do so. I asked him about a doctrine which had been articulated in some quarters about Casey being a superprecedent and took a step on coining a new concept called the super-duper precedent. It has not landed too well, but sometimes these new ideas take a while to gestate. I believe the next nominee is going to face very close questioning. It is my thought, already expressed by a number of Senators--and Senators on both the right and the left--that Senators want to know more about the thinking of the new nominee than Judge Roberts was willing to give. Judge Roberts was able to run between the raindrops in a hurricane because of his unique talent; his record was so extraordinary that he was able to fend off many questions. A number of Senators have stated a reason for a ``no'' vote is Judge Roberts' refusal to answer questions and their lack of sufficient knowledge as to where he stands. It is a virtual certainty--in fact, you can strike ``virtual''--it is a certainty that the next nominee will have these questions and many more. Some would say that Judge Roberts would be replacing Chief Justice Rehnquist, so that when you have somebody perhaps on the same ideological line, although that is by no means certain from Judge Roberts' answers, the fact is you just do not know how Judge Roberts is going to rule on Roe v. Wade or other controversial issues. Again, I repeat, that is, in my opinion, as it should be as a matter of judicial independence. If there is any rule as to what happens, it is a rule of surprise as to what nominees do. There is no doubt that the hearings in the Judiciary Committee have become more contentious because of concern about the highly controversial issues, and it is more than the issue of choice in Roe v. Wade, it is the issue of congressional authority versus the action of the Supreme Court in declaring laws unconstitutional. It is in the issue of religious freedom as embodied in the Religious Restoration Act where there is concern from both the right and from the left. It was this kind of angst, this kind of unease which led me to the suggestion that the President defer a replacement for Justice O'Connor until the end of the June term, at a point where we would know a great deal more about Judge Roberts. But in the context where there are uncertainties as to two votes, it compounds the angst and anxiety as to what may occur. I called Justice O'Connor, as I said in the meeting involving the President, Senator Frist, Senator Reid, Senator Leahy, the Vice President, Chief of Staff Andy Card, and myself. I said I called Justice O'Connor and asked her if she would be willing to stay on-- obviously quite a sacrifice--and she said she would if she was asked. But that is the President's call, and the President has indicated he is going to proceed in a timely manner where the expectation is the nomination will be made, my estimate would be, shortly if not immediately after a decision is made by the Senate on the Roberts nomination. It is going to be a contentious hearing. The contentious quality was bubbling just below the surface during the hearing of Judge Roberts. There are a number of factors already stated, already articulated which would pose even more of a contentious issue. I ask unanimous consent, although I don't know if I need to, to introduce a bill at this point, and it is right in line with the issues involved in the Roberts nomination. That is legislation that will call for televising the Supreme Court of the United States.

Mr. SPECTER. I thank the Chair. The nomination of Judge Roberts to be Chief Justice has created a great deal of interest, and I think the televised hearings have captured the imagination of the American people. I have long believed that the Court ought to be televised. There is a certain reluctance of the Court for television as a change in practice and as a change in procedure, but there is much to recommend it. Televising the House of Representatives and the Senate has produced a great deal more public understanding on the important activities we undertake here and what we do. The Supreme Court of the United States in 1980, in a case captioned Richmond Newspapers v. Virginia, set the rationale for televising the Court when the Supreme Court itself said: Instead of acquiring information about trials firsthand observation or by word of mouth from those who attend, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of acting as a service for the public. Media presence-- The intended subject here-- contributes to the understanding of the rule of law and the comprehension of the function of the entire criminal justice system. That would be true for the entire justice system. The Congress has the established authority to set the date when the Supreme Court starts its session. We have legislated that it should be the first Monday in October. We have the authority to establish the number of Justices--nine. We all recall the famous court-packing effort by President Roosevelt in about 1937. We could increase the number as we would choose. The Congress has the authority to establish a quorum, which is set at six for the Court to function. The Congress has the authority to establish a timetable for the disposition of habeas corpus cases, capital punishment. We establish the timetable for the Federal courts under the Speedy Trial Act. Of course, the final arbiter in all of these cases is the Supreme Court of the United States. So if the Supreme Court should decide that legislation enacted by Congress to call for being televised was violative of the Constitution, they would have the final word. But in the context where the Supreme Court decides the cutting edge questions of our day--the question of choice, the question of the right to die, the question of the Ten Commandments, the question of establishment of religion, the question of the free exercise clause, the question of the death penalty, the question of exonerating the innocent--it is very much in the public interest, in my view, to have the Supreme Court televised. We all know the momentous decision of the Supreme Court in Bush v. Gore. On that occasion, when I walked across the green to attend the argument, the square block was overloaded with television trucks because of the enormous interest, but the television cameras could not go inside. At that time, Senator Biden and I wrote to the Chief Justice and asked that the Court be open for television. We received a letter of declination. As I recollect, the Court did have a transcript which was released right after the oral argument concluded. I believe proceedings of the Court could be televised with due regard to the security and safety of the members of the Court. Under the proposed legislation, the Court would have the authority in a particular case to stop the television if it felt it necessary. In conclusion, as we approach the confirmation of Judge Roberts to be Chief Justice, I urge my colleagues to take a close look at his record. The conventional wisdom is that the nomination is assured at this point. I believe that is true. Nevertheless, I think there is value in rolling up the score. We frequently cite the vote of 98 to 0 for Scalia; only three votes against Justice Ginsburg; 52 to 48 for Justice Thomas. I believe a strong vote for Judge Roberts would give him added stature. It is pretty hard to add stature to the Chief Justice of the U.S. Supreme Court, but I believe it would add a modicum of stature. As the President ponders the nominee to replace Justice Sandra Day O'Connor, it is my hope that there will be balance maintained on the Court. With the uncertainties of the vote of Judge Roberts, the uncertainties of the vote of a new nominee, and the prospects of retirements in the immediate future, the composition of the Court could change, and the rule of law is structured on stability. The rule of law is structured on expectations being fulfilled, and reliance, and it is enhanced by not having sharp turns. The nomination of Judge Roberts to replace Chief Justice Rehnquist may work out to be a substitution of people with about the same judicial approach. Although it is far from certain exactly how Judge Roberts will rule, there is no doubt that Justice O'Connor was a swing vote, tipping the scale. I believe that is a factor to be considered. While I would like to see more women, a Hispanic, and more African Americans on the Court, I urge the President to name the very best person he can find. We could use a Brandeis or a Holmes on the Supreme Court. I am not saying we do not have one now, but if we do, we could use more. President Bush disarmed his critics by nominating Judge Roberts with his extraordinary record, and I urge the President to nominate the very best person he can, regardless of gender, ethnicity, or any other factor. I draw the attention of my colleagues to the full text of my remarks of Monday, September 19, 2005.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to introduce legislation that will give the public greater access to our Supreme Court. This bill requires the high Court to permit television coverage of its open sessions unless it decides by a vote of the majority of Justices that allowing such coverage in a particular case would violate the due process rights of one or more of the parties involved in the matter. The purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. Because the Supreme Court of the United States holds power to decide cutting-edge questions on public policy, thereby effectively becoming a virtual ``super legislature,'' the public has a right to know what the Supreme Court is doing. And that right would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented to the Court. With this information, the public would have insight into key issues and be better equipped to understand the impact of the Court's decisions. In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States entitled Richmond Newspapers v. Virginia. In this case, the Supreme Court noted that a public trial belongs not only to the accused, but to the public and the press as well; and that people now acquire information on court procedures chiefly through the print and electronic media. That decision, in referencing the electronic media, appears to anticipate televising court proceedings, although I do not mean to suggest that the Supreme Court is in agreement with this legislation. I should note that the Court could, on its own motion, televise its proceedings but has chosen not to do so, which presents, in my view, the necessity for legislating on this subject. When I argued the case of the Navy Yard, Dalton v. Specter, back in 1994, the Court proceedings were illustrated by an artist's drawings. Now, however, the public gets a substantial portion, if not most, of its information from television and the internet. While many court proceedings are broadcast routinely on television, the public has little access to the most important and highest court in this country. The public must either rely on the print media, or stand in long lines outside the Supreme Court in Washington DC in order to get a brief glimpse of the open session from the public gallery. Justice Felix Frankfurter perhaps anticipated the day when Supreme Court arguments would be televised when he said that he longed for a day when: The news media would cover the Supreme Court as thoroughly as it did the World Series, since the public confidence in the judiciary hinges on the public's perception of it, and that perception necessarily hinges on the media's portrayal of the legal system. When I spoke in favor of this legislation in September of 2000, I said, ``I do not expect a rush to judgment on this very complex proposition, but I do believe the day will come when the Supreme Court of the United States will be televised. That day will come, and it will be decisively in the public interest so the public will know the magnitude of what the Court is deciding and its role in our democratic process.'' Today, I believe the time has come and that this legislation is crucial to the public's awareness of Supreme Court proceedings and their impact on the daily lives of all Americans. I pause to note that it was not until 1955 that the Supreme Court, under the leadership of Chief Justice Warren, first began permitting audio recordings of oral arguments. Between 1955 and 1993, there were apparently over 5,000 recorded arguments before the Supreme Court. That roughly translates to an average of about one hundred thirty two (132) arguments annually. But audio recordings are simply ill suited to capture the nuance of oral arguments and the sustained attention of the American citizenry. Nor is it any response that people who wish to see open sessions of the Supreme Court should come to the Capital and attend oral arguments. For, according to one source: Several million people each year visit Washington, D.C., and many thousands tour the White House and the Capital. But few have the chance to sit in the Supreme Court chamber and witness an entire oral argument. Most tourists are given just three minutes before they are shuttled out and a new group shuttled in. In cases that attract headlines, seats for the public are scarce and waiting lines are long. And the Court sits in open session less than two hundred hours each year. Television cameras and radio microphones are still banned from the chamber, and only a few hundred people at most can actually witness oral arguments. Protected by a marble wall from public access, the Supreme Court has long been the least understood of the three branches of our federal government. In light of the increasing public desire for information, it seems untenable to continue excluding cameras from the courtroom of the Nation's highest court. As one legal commentator observes: An effective and legitimate way to satisfy America's curiosity about the Supreme Court's holdings, Justices, and modus operandi is to permit broadcast coverage of oral arguments and decision announcements from the courtroom itself. Televised court proceedings better enable the public to understand the role of the Supreme Court and its impact on the key decisions of the day. Not only has the Supreme Court invalidated Congressional decisions where there is, in the views of many, simply a difference of opinion to what is preferable public policy, but the Court determines novel issues such as whether AIDS is a disability under the Americans with Disabilities Act, whether Congress can ban obscenity from the Internet, and whether states can impose term limits upon members of Congress. The current Court, like its predecessors, hands down decisions which vitally affect the lives of all Americans. Since the Court's historic 1803 decision, Marbury v. Madison, the Supreme Court has the final authority on issues of enormous importance from birth to death. In Roe v. Wade (1973), the Court affirmed a Constitutional right to abortion in this country and struck down state statutes banning or severely restricting abortion during the first two trimesters on the grounds that they violated a right to privacy inherent in the Due Process Clause of the Fourteenth Amendment. In the case of Washington v. Glucksberg (1997), the court refused to create a similar right to assisted suicide. Here the Court held that the Due Process Clause does not recognize a liberty interest that includes a right to commit suicide with another's assistance. In the seventies, the Court first struck down then upheld state statutes imposing the death penalty for certain crimes. In Furman v. Georgia (1972), the Court struck down Georgia's death penalty statute under the cruel and unusual punishment clause of the Eighth Amendment and stated that no death penalty law could pass constitutional muster unless it took aggravating and mitigating circumstances into account. This decision led Georgia and many states to amend their death penalty statutes and, four years later, in Gregg v. Georgia (1976), the Supreme Court upheld Georgia's amended death penalty statute. Over the years, the Court has also played a major role in issues of war and peace. In its opinion in Scott v. Sanford (1857)--better known as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a slave who had been taken into ``free'' territory by his owner, was nevertheless still a slave. The Court further held that Congress lacked the power to abolish slavery in certain territories, thereby invalidating the careful balance that had been worked out between the North and the South on the issue. Historians have noted that this opinion fanned the flames that led to the Civil War. The Supreme Court has also ensured adherence to the Constitution during more recent conflicts. Prominent opponents of the Vietnam War repeatedly petitioned the Court to declare the Presidential action unconstitutional on the grounds that Congress had never given the President a declaration of war. The Court decided to leave this conflict in the political arena and repeatedly refused to grant writs of certiorari to hear these cases. This prompted Justice Douglas, sometimes accompanied by Justices Stewart and Harlan, to take the unusual step of writing lengthy dissents to the denials of cert. In New York Times Co. v. United States (1971)--the so called ``Pentagon Papers'' case--the Court refused to grant the government prior restraint to prevent the New York Times from publishing leaked Defense Department documents which revealed damaging information about the Johnson Administration and the war effort. The publication of these documents by the New York Times is believed to have helped move public opinion against the war. In its landmark civil rights opinions, the Supreme Court took the lead in effecting needed social change, helping us to address fundamental questions about our society in the courts rather than in the streets. In Brown v. Board of Education, the Court struck down the principle of ``separate but equal'' education for blacks and whites and integrated public education in this country. This case was then followed by a series of civil rights cases which enforced the concept of integration and full equality for all citizens of this country, including Garner v. Louisiana, 1961, Burton v. Wilmington Parking Authority, 1961, and Peterson v. City of Greenville, 1963. In recent years Marbury, Dred Scott, Furman, New York Times, and Roe, familiar names in the lexicon of lawyerly discussions concerning watershed Supreme Court precedents, have been joined with similarly important cases like Hamdi, Rasul and Roper all cases that affect fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court concluded that although Congress authorized the detention of combatants, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. The Court reaffirmed the nation's commitment to constitutional principles even during times of war and uncertainty. Similarly, in Rasul v. Bush, 2004, the Court held that the federal habeas statute gave district courts jurisdiction to hear challenges of aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism. Earlier this year in Roper v. Simmons, 2005, the Court held that executions of individuals who were under 18 years of age at the time of their capital crimes is prohibited by Eighth and Fourteenth Amendments. In June of this year, the Supreme Court issued Kelo v. City of New London, 2005, a highly controversial opinion in which a majority of the justices held that a city's exercise of eminent domain power in furtherance of an economic development plan satisfied the Constitution's Fifth Amendment ``public use'' requirement despite the absence of any blight. Moreover, on June 27, 2005, the High Court issued two rulings regarding the public display of the Ten Commandments. Each opinion was backed by a different coalition of four, with Justice Breyer as the swing vote. The only discernible rule seems to be that the Ten Commandments may be displayed outside a public courthouse, Van Orden v. Perry, but not inside (McCreary County v. American Civil Liberties Union) and may be displayed with other documents, but not alone. In Van Orden v. Perry, the Supreme Court permitted a display of the Ten Commandments to remain on the grounds outside the Texas State Capitol. However, in McCreary County v. ACLU, a bare majority of Supreme Court Justices ruled that two Kentucky counties violated the Establishment Clause by erecting displays of the Ten Commandments indoors for the purpose of advancing religion. While the multiple concurring and dissenting opinions in these cases serve to explain some of the confounding differences in outcomes, it would have been extraordinarily fruitful for the American public to watch the Justices as they grappled with these issues during oral arguments that, presumably, reveal much more of their deliberative processes than mere text. Irrespective of ones view concerning the merits of these decisions, it is clear beyond cavil that they have a profound effect on the interplay between the government, on the one hand, and the individual on the other. So, it is with these watershed decisions in mind that I introduce legislation designed to make the Supreme Court less esoteric and more accessible to common men and women who are so clearly affected by its decisions. When deciding issues of such great national import, the Supreme Court is rarely unanimous. In fact, a large number of seminal Supreme Court decisions have been reached through a vote of 5-4. Such a close margin reveals that these decisions are far from foregone conclusions distilled from the meaning of the Constitution and legal precedents. On the contrary, these major Supreme Court opinions embody critical decisions reached on the basis of the preferences and views of each individual justice. In a case that is decided by a vote of 5-4, an individual justice has the power by his or her vote to change the law of the land. Some would argue that the Court has even played a significant role in deciding political contests as well. Who can forget the Court's dramatic decision in Bush v. Gore that enabled the country to move on from a bitterly fought presidential race. That decision, with its enormous repercussions for the Nation, cried out for greater public scrutiny of the process by which the Justices heard arguments and all but decided the fate of the 2000 presidential race. Given the enormous significance of each vote cast by each Justice on the Supreme Court, televising the proceedings of the Supreme Court will allow sunlight to shine brightly on these proceedings and ensure greater public awareness and scrutiny. In a democracy, the workings of the government at all levels should be open to public view. With respect to oral arguments, the more openness and the more real the opportunity for public observation the greater the understanding and trust. As the Supreme Court observed in the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.'' It was in this spirit that the House of Representatives opened its deliberations to meaningful public observation by allowing C-SPAN to begin televising debates in the House chamber in 1979. The Senate followed the House's lead in 1986 by voting to allow television coverage of the Senate floor. Beyond this general policy preference for openness, however, there is a strong argument that the Constitution requires that television cameras be permitted in the Supreme Court. It is well established that the Constitution guarantees access to judicial proceedings to the press and the public. In 1980, the Supreme Court relied on this tradition when it held in Richmond Newspapers v. Virginia that the right of a public trial belongs not just to the accused, but to the public and the press as well. The Court noted that such openness has ``long been recognized as an indisputable attribute of an Anglo-American trial.'' Recognizing that in modern society most people cannot physically attend trials, the Court specifically addressed the need for access by members of the media: Instead of acquiring information about trials by first hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of acting as surrogates for the public. [Media presence] contributes to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system. To be sure, a strong argument can be made that forbidding television cameras in the court, while permitting access to print and other media, constitutes an impermissible discrimination against one type of media over another. In recent years, the Supreme Court and lower courts have repeatedly held that differential treatment of different media is impermissible under the First Amendment absent an overriding governmental interest. For example, in 1983 the Court invalidated discriminatory tax schemes imposed only upon certain types of media in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected the contention by the two candidates for mayor of New York that they could exclude some members of the media from their campaign headquarters by providing access through invitation only. The Court wrote that: Once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable. In the 1965 case of Estes v. Texas, the Supreme Court rejected the argument that the denial of television coverage of trials violates the equal protection clause. In the same opinion, the Court held that the presence of television cameras in the Court had violated a Texas defendant's right to due process. Subsequent opinions have cast serious doubt upon the continuing relevance of both prongs of the Estes opinion. In its 1981 opinion in Chandler v. Florida, the court recognized that Estes must be read narrowly in light of the state of television technology at that time. The television coverage of Estes' 1962 trial required cumbersome equipment, numerous additional microphones, yards of new cables, distracting lighting, and numerous technicians present in the courtroom. In contrast, the court noted, television coverage in 1980 can be achieved through the presence of one or two discreetly placed cameras without making any perceptible change in the atmosphere of the courtroom. Accordingly, the Court held that, despite Estes, the presence of television cameras in a Florida trial was not a violation of the rights of the defendants in that case. By the same logic, the holding in Estes that exclusion of television cameras from the courts did not violate the equal protection clause must be revisited in light of the dramatically different nature of television coverage today. Given the strength of these arguments, it is not surprising that over the last two decades there has been a rapidly growing acceptance of cameras in American courtrooms which has reached almost every court except for the Supreme Court itself. Ironically, it was the Chandler decision which helped spur the spread of television cameras in the courts. Shortly after Chandler, the American Bar Association revised its canons to permit judges to authorize televising civil and criminal proceedings in their courts. Following the green lights provided by the Supreme Court and the ABA, nearly all the States have decided to permit electronic coverage of at least some portion of their judicial proceedings. In 1990, the Federal Judicial Conference authorized a three-year pilot program allowing television coverage of civil proceedings in six federal district courts and two federal circuit courts. The program began in July, 1991, and ran through December 31, 1994. The Federal Judicial Center monitored the program and issued a positive final evaluation. In particular, the Judicial Center concluded that: Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program. The Judicial Center also concluded that: Judges and attorneys who had experience with electronic media coverage under the program generally reported observing small or no effects of camera presence on participants in the proceedings, courtroom decorum, or the administration of justice. Despite this positive evaluation, the Judicial Conference voted in September 1994, to end the experiment and not to extend the camera coverage to all courts. This decision was made in the aftermath of the initial burst of television coverage of O.J. Simpson's pretrial hearing. Some have argued that the decision was unduly influenced by this outside event. In March 1996, the Judicial Conference revisited the issue of television cameras in the federal courts and voted to permit each Federal court of appeals to ``decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments.'' Since that time, two circuit courts have enacted rules permitting television coverage of their arguments. It is significant to note that these two circuits were the two circuits which participated in the federal experiment with television cameras a few years earlier. It seems that once judges have an experience with cameras in their courtroom, they no longer oppose the idea. On September 6, 2000, the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts held a hearing titled ``Allowing Cameras and Electronic Media in the Courtroom.'' The primary focus of the hearing was Senate bill S. 721, legislation introduced by Senators Grassley and Schumer that would give Federal judges the discretion to allow television coverage of court proceedings. One of the witnesses at the hearing, Judge Edward Becker, Chief Judge U.S. Court of Appeals for the Third Circuit, spoke in opposition to the legislation and the presence of television cameras in the courtroom. The remaining five witnesses, however, including a Federal judge, a State judge, a law professor and other legal experts, all testified in favor of the legislation. They argued that cameras in the courts would not disrupt proceedings but would provide the kind of accountability and access that is fundamental to our system of government. In my judgment, Congress, with the concurrence of the President, or overriding his veto, has the authority to require the Supreme Court to televise its proceedings. Such a conclusion is not free from doubt and is highly likely to be tested with the Supreme Court, as usual, having the final word. As I see it, there is clearly no constitutional prohibition against such legislation. Article 3 of the Constitution states that the judicial power of the United States shall be vested ``in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish.'' While the Constitution specifically creates the Supreme Court, it left it to Congress to determine how the Court would operate. For example, it was Congress that fixed the number of justices on the Supreme Court at nine. Likewise, it was Congress that decided that any six of these justices are sufficient to constitute a quorum of the Court. It was Congress that decided that the term of the Court shall commence on the first Monday in October of each year, and it was Congress that determined the procedures to be followed whenever the Chief Justice is unable to perform the duties of his office. Beyond such basic structural and operational matters, Congress also controls more substantive aspects of the Supreme Court. Most importantly, it is Congress that in effect determines the appellate jurisdiction of the Supreme Court. Although the Constitution itself sets out the appellate jurisdiction of the Court, it provides that such jurisdiction exist ``with such exceptions and under such regulations as the Congress shall make.'' In the early days of the Supreme Court, Chief Justice Marshall, writing for the Court in Durousseau v. United States, recognized that the power to make exceptions to the Court's jurisdiction is the equivalent of the power to grant jurisdiction, since exceptions can be ``implied from the intent manifested by the affirmative description [of jurisdiction].'' The Supreme Court recognized the power of Congress to control its appellate jurisdiction in a dramatic way in the famous 1868 case of Ex Parte McCardle. In this case, McCardle, a newspaper editor, was being held in custody by the military for trial on charges stemming from the publication of articles alleged to be libelous and incendiary. McCardle petitioned the Supreme Court for a writ of habeas corpus. The Court heard his case but, before it rendered its opinion, Congress repealed the statute that gave the Supreme Court jurisdiction to hear the habeas appeal. In light of this Congressional action, the Supreme Court felt compelled to dismiss the case for lack of jurisdiction. Some objections have been raised to televised proceedings of the Supreme Court on the ground that it would subject justices to undue security risks. My own view is such concerns are vastly overstated. Well-known members of Congress, walk on a regular basis in public view in the Capitol complex. Other very well-known personalities, presidents, vice presidents, cabinet officers, all are on public view with even incumbent presidents exposed to risks as they mingle with the public. Such risks are minimal in my view given the relatively minor exposure that Supreme Court justices would undertake through television appearances. As I explained earlier, the Supreme Court could, of course, permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating the televising of Supreme Court proceedings and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that their proceedings ought to be better known to the public; and, in the absence of Court rule, public policy would be best served by enactment of legislation requiring the televising of Supreme Court proceedings. This legislation embodies sound policy and will prove valuable to the public. I urge my colleagues to support this bill. I ask unanimous consent that the text of the bill be printed in the Record. There being no objective, the bill was ordered to be printed in the Record, as follows:

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to introduce legislation that will give the public greater access to our Supreme Court. This bill requires the high Court to permit television coverage of its open sessions unless it decides by a vote of the majority of Justices that allowing such coverage in a particular case would violate the due process rights of one or more of the parties involved in the matter. The purpose of this legislation is to open the Supreme Court doors so that more Americans can see the process by which the Court reaches critical decisions of law that affect this country and everyday Americans. Because the Supreme Court of the United States holds power to decide cutting-edge questions on public policy, thereby effectively becoming a virtual ``super legislature,'' the public has a right to know what the Supreme Court is doing. And that right would be substantially enhanced by televising the oral arguments of the Court so that the public can see and hear the issues presented to the Court. With this information, the public would have insight into key issues and be better equipped to understand the impact of the Court's decisions. In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States entitled Richmond Newspapers v. Virginia. In this case, the Supreme Court noted that a public trial belongs not only to the accused, but to the public and the press as well; and that people now acquire information on court procedures chiefly through the print and electronic media. That decision, in referencing the electronic media, appears to anticipate televising court proceedings, although I do not mean to suggest that the Supreme Court is in agreement with this legislation. I should note that the Court could, on its own motion, televise its proceedings but has chosen not to do so, which presents, in my view, the necessity for legislating on this subject. When I argued the case of the Navy Yard, Dalton v. Specter, back in 1994, the Court proceedings were illustrated by an artist's drawings. Now, however, the public gets a substantial portion, if not most, of its information from television and the internet. While many court proceedings are broadcast routinely on television, the public has little access to the most important and highest court in this country. The public must either rely on the print media, or stand in long lines outside the Supreme Court in Washington DC in order to get a brief glimpse of the open session from the public gallery. Justice Felix Frankfurter perhaps anticipated the day when Supreme Court arguments would be televised when he said that he longed for a day when: The news media would cover the Supreme Court as thoroughly as it did the World Series, since the public confidence in the judiciary hinges on the public's perception of it, and that perception necessarily hinges on the media's portrayal of the legal system. When I spoke in favor of this legislation in September of 2000, I said, ``I do not expect a rush to judgment on this very complex proposition, but I do believe the day will come when the Supreme Court of the United States will be televised. That day will come, and it will be decisively in the public interest so the public will know the magnitude of what the Court is deciding and its role in our democratic process.'' Today, I believe the time has come and that this legislation is crucial to the public's awareness of Supreme Court proceedings and their impact on the daily lives of all Americans. I pause to note that it was not until 1955 that the Supreme Court, under the leadership of Chief Justice Warren, first began permitting audio recordings of oral arguments. Between 1955 and 1993, there were apparently over 5,000 recorded arguments before the Supreme Court. That roughly translates to an average of about one hundred thirty two (132) arguments annually. But audio recordings are simply ill suited to capture the nuance of oral arguments and the sustained attention of the American citizenry. Nor is it any response that people who wish to see open sessions of the Supreme Court should come to the Capital and attend oral arguments. For, according to one source: Several million people each year visit Washington, D.C., and many thousands tour the White House and the Capital. But few have the chance to sit in the Supreme Court chamber and witness an entire oral argument. Most tourists are given just three minutes before they are shuttled out and a new group shuttled in. In cases that attract headlines, seats for the public are scarce and waiting lines are long. And the Court sits in open session less than two hundred hours each year. Television cameras and radio microphones are still banned from the chamber, and only a few hundred people at most can actually witness oral arguments. Protected by a marble wall from public access, the Supreme Court has long been the least understood of the three branches of our federal government. In light of the increasing public desire for information, it seems untenable to continue excluding cameras from the courtroom of the Nation's highest court. As one legal commentator observes: An effective and legitimate way to satisfy America's curiosity about the Supreme Court's holdings, Justices, and modus operandi is to permit broadcast coverage of oral arguments and decision announcements from the courtroom itself. Televised court proceedings better enable the public to understand the role of the Supreme Court and its impact on the key decisions of the day. Not only has the Supreme Court invalidated Congressional decisions where there is, in the views of many, simply a difference of opinion to what is preferable public policy, but the Court determines novel issues such as whether AIDS is a disability under the Americans with Disabilities Act, whether Congress can ban obscenity from the Internet, and whether states can impose term limits upon members of Congress. The current Court, like its predecessors, hands down decisions which vitally affect the lives of all Americans. Since the Court's historic 1803 decision, Marbury v. Madison, the Supreme Court has the final authority on issues of enormous importance from birth to death. In Roe v. Wade (1973), the Court affirmed a Constitutional right to abortion in this country and struck down state statutes banning or severely restricting abortion during the first two trimesters on the grounds that they violated a right to privacy inherent in the Due Process Clause of the Fourteenth Amendment. In the case of Washington v. Glucksberg (1997), the court refused to create a similar right to assisted suicide. Here the Court held that the Due Process Clause does not recognize a liberty interest that includes a right to commit suicide with another's assistance. In the seventies, the Court first struck down then upheld state statutes imposing the death penalty for certain crimes. In Furman v. Georgia (1972), the Court struck down Georgia's death penalty statute under the cruel and unusual punishment clause of the Eighth Amendment and stated that no death penalty law could pass constitutional muster unless it took aggravating and mitigating circumstances into account. This decision led Georgia and many states to amend their death penalty statutes and, four years later, in Gregg v. Georgia (1976), the Supreme Court upheld Georgia's amended death penalty statute. Over the years, the Court has also played a major role in issues of war and peace. In its opinion in Scott v. Sanford (1857)--better known as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a slave who had been taken into ``free'' territory by his owner, was nevertheless still a slave. The Court further held that Congress lacked the power to abolish slavery in certain territories, thereby invalidating the careful balance that had been worked out between the North and the South on the issue. Historians have noted that this opinion fanned the flames that led to the Civil War. The Supreme Court has also ensured adherence to the Constitution during more recent conflicts. Prominent opponents of the Vietnam War repeatedly petitioned the Court to declare the Presidential action unconstitutional on the grounds that Congress had never given the President a declaration of war. The Court decided to leave this conflict in the political arena and repeatedly refused to grant writs of certiorari to hear these cases. This prompted Justice Douglas, sometimes accompanied by Justices Stewart and Harlan, to take the unusual step of writing lengthy dissents to the denials of cert. In New York Times Co. v. United States (1971)--the so called ``Pentagon Papers'' case--the Court refused to grant the government prior restraint to prevent the New York Times from publishing leaked Defense Department documents which revealed damaging information about the Johnson Administration and the war effort. The publication of these documents by the New York Times is believed to have helped move public opinion against the war. In its landmark civil rights opinions, the Supreme Court took the lead in effecting needed social change, helping us to address fundamental questions about our society in the courts rather than in the streets. In Brown v. Board of Education, the Court struck down the principle of ``separate but equal'' education for blacks and whites and integrated public education in this country. This case was then followed by a series of civil rights cases which enforced the concept of integration and full equality for all citizens of this country, including Garner v. Louisiana, 1961, Burton v. Wilmington Parking Authority, 1961, and Peterson v. City of Greenville, 1963. In recent years Marbury, Dred Scott, Furman, New York Times, and Roe, familiar names in the lexicon of lawyerly discussions concerning watershed Supreme Court precedents, have been joined with similarly important cases like Hamdi, Rasul and Roper all cases that affect fundamental individual rights. In Hamdi v. Rumsfeld, 2004, the Court concluded that although Congress authorized the detention of combatants, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. The Court reaffirmed the nation's commitment to constitutional principles even during times of war and uncertainty. Similarly, in Rasul v. Bush, 2004, the Court held that the federal habeas statute gave district courts jurisdiction to hear challenges of aliens held at Guantanamo Bay, Cuba in the U.S. War on Terrorism. Earlier this year in Roper v. Simmons, 2005, the Court held that executions of individuals who were under 18 years of age at the time of their capital crimes is prohibited by Eighth and Fourteenth Amendments. In June of this year, the Supreme Court issued Kelo v. City of New London, 2005, a highly controversial opinion in which a majority of the justices held that a city's exercise of eminent domain power in furtherance of an economic development plan satisfied the Constitution's Fifth Amendment ``public use'' requirement despite the absence of any blight. Moreover, on June 27, 2005, the High Court issued two rulings regarding the public display of the Ten Commandments. Each opinion was backed by a different coalition of four, with Justice Breyer as the swing vote. The only discernible rule seems to be that the Ten Commandments may be displayed outside a public courthouse, Van Orden v. Perry, but not inside (McCreary County v. American Civil Liberties Union) and may be displayed with other documents, but not alone. In Van Orden v. Perry, the Supreme Court permitted a display of the Ten Commandments to remain on the grounds outside the Texas State Capitol. However, in McCreary County v. ACLU, a bare majority of Supreme Court Justices ruled that two Kentucky counties violated the Establishment Clause by erecting displays of the Ten Commandments indoors for the purpose of advancing religion. While the multiple concurring and dissenting opinions in these cases serve to explain some of the confounding differences in outcomes, it would have been extraordinarily fruitful for the American public to watch the Justices as they grappled with these issues during oral arguments that, presumably, reveal much more of their deliberative processes than mere text. Irrespective of ones view concerning the merits of these decisions, it is clear beyond cavil that they have a profound effect on the interplay between the government, on the one hand, and the individual on the other. So, it is with these watershed decisions in mind that I introduce legislation designed to make the Supreme Court less esoteric and more accessible to common men and women who are so clearly affected by its decisions. When deciding issues of such great national import, the Supreme Court is rarely unanimous. In fact, a large number of seminal Supreme Court decisions have been reached through a vote of 5-4. Such a close margin reveals that these decisions are far from foregone conclusions distilled from the meaning of the Constitution and legal precedents. On the contrary, these major Supreme Court opinions embody critical decisions reached on the basis of the preferences and views of each individual justice. In a case that is decided by a vote of 5-4, an individual justice has the power by his or her vote to change the law of the land. Some would argue that the Court has even played a significant role in deciding political contests as well. Who can forget the Court's dramatic decision in Bush v. Gore that enabled the country to move on from a bitterly fought presidential race. That decision, with its enormous repercussions for the Nation, cried out for greater public scrutiny of the process by which the Justices heard arguments and all but decided the fate of the 2000 presidential race. Given the enormous significance of each vote cast by each Justice on the Supreme Court, televising the proceedings of the Supreme Court will allow sunlight to shine brightly on these proceedings and ensure greater public awareness and scrutiny. In a democracy, the workings of the government at all levels should be open to public view. With respect to oral arguments, the more openness and the more real the opportunity for public observation the greater the understanding and trust. As the Supreme Court observed in the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.'' It was in this spirit that the House of Representatives opened its deliberations to meaningful public observation by allowing C-SPAN to begin televising debates in the House chamber in 1979. The Senate followed the House's lead in 1986 by voting to allow television coverage of the Senate floor. Beyond this general policy preference for openness, however, there is a strong argument that the Constitution requires that television cameras be permitted in the Supreme Court. It is well established that the Constitution guarantees access to judicial proceedings to the press and the public. In 1980, the Supreme Court relied on this tradition when it held in Richmond Newspapers v. Virginia that the right of a public trial belongs not just to the accused, but to the public and the press as well. The Court noted that such openness has ``long been recognized as an indisputable attribute of an Anglo-American trial.'' Recognizing that in modern society most people cannot physically attend trials, the Court specifically addressed the need for access by members of the media: Instead of acquiring information about trials by first hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of acting as surrogates for the public. [Media presence] contributes to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system. To be sure, a strong argument can be made that forbidding television cameras in the court, while permitting access to print and other media, constitutes an impermissible discrimination against one type of media over another. In recent years, the Supreme Court and lower courts have repeatedly held that differential treatment of different media is impermissible under the First Amendment absent an overriding governmental interest. For example, in 1983 the Court invalidated discriminatory tax schemes imposed only upon certain types of media in Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected the contention by the two candidates for mayor of New York that they could exclude some members of the media from their campaign headquarters by providing access through invitation only. The Court wrote that: Once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable. In the 1965 case of Estes v. Texas, the Supreme Court rejected the argument that the denial of television coverage of trials violates the equal protection clause. In the same opinion, the Court held that the presence of television cameras in the Court had violated a Texas defendant's right to due process. Subsequent opinions have cast serious doubt upon the continuing relevance of both prongs of the Estes opinion. In its 1981 opinion in Chandler v. Florida, the court recognized that Estes must be read narrowly in light of the state of television technology at that time. The television coverage of Estes' 1962 trial required cumbersome equipment, numerous additional microphones, yards of new cables, distracting lighting, and numerous technicians present in the courtroom. In contrast, the court noted, television coverage in 1980 can be achieved through the presence of one or two discreetly placed cameras without making any perceptible change in the atmosphere of the courtroom. Accordingly, the Court held that, despite Estes, the presence of television cameras in a Florida trial was not a violation of the rights of the defendants in that case. By the same logic, the holding in Estes that exclusion of television cameras from the courts did not violate the equal protection clause must be revisited in light of the dramatically different nature of television coverage today. Given the strength of these arguments, it is not surprising that over the last two decades there has been a rapidly growing acceptance of cameras in American courtrooms which has reached almost every court except for the Supreme Court itself. Ironically, it was the Chandler decision which helped spur the spread of television cameras in the courts. Shortly after Chandler, the American Bar Association revised its canons to permit judges to authorize televising civil and criminal proceedings in their courts. Following the green lights provided by the Supreme Court and the ABA, nearly all the States have decided to permit electronic coverage of at least some portion of their judicial proceedings. In 1990, the Federal Judicial Conference authorized a three-year pilot program allowing television coverage of civil proceedings in six federal district courts and two federal circuit courts. The program began in July, 1991, and ran through December 31, 1994. The Federal Judicial Center monitored the program and issued a positive final evaluation. In particular, the Judicial Center concluded that: Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program. The Judicial Center also concluded that: Judges and attorneys who had experience with electronic media coverage under the program generally reported observing small or no effects of camera presence on participants in the proceedings, courtroom decorum, or the administration of justice. Despite this positive evaluation, the Judicial Conference voted in September 1994, to end the experiment and not to extend the camera coverage to all courts. This decision was made in the aftermath of the initial burst of television coverage of O.J. Simpson's pretrial hearing. Some have argued that the decision was unduly influenced by this outside event. In March 1996, the Judicial Conference revisited the issue of television cameras in the federal courts and voted to permit each Federal court of appeals to ``decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments.'' Since that time, two circuit courts have enacted rules permitting television coverage of their arguments. It is significant to note that these two circuits were the two circuits which participated in the federal experiment with television cameras a few years earlier. It seems that once judges have an experience with cameras in their courtroom, they no longer oppose the idea. On September 6, 2000, the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts held a hearing titled ``Allowing Cameras and Electronic Media in the Courtroom.'' The primary focus of the hearing was Senate bill S. 721, legislation introduced by Senators Grassley and Schumer that would give Federal judges the discretion to allow television coverage of court proceedings. One of the witnesses at the hearing, Judge Edward Becker, Chief Judge U.S. Court of Appeals for the Third Circuit, spoke in opposition to the legislation and the presence of television cameras in the courtroom. The remaining five witnesses, however, including a Federal judge, a State judge, a law professor and other legal experts, all testified in favor of the legislation. They argued that cameras in the courts would not disrupt proceedings but would provide the kind of accountability and access that is fundamental to our system of government. In my judgment, Congress, with the concurrence of the President, or overriding his veto, has the authority to require the Supreme Court to televise its proceedings. Such a conclusion is not free from doubt and is highly likely to be tested with the Supreme Court, as usual, having the final word. As I see it, there is clearly no constitutional prohibition against such legislation. Article 3 of the Constitution states that the judicial power of the United States shall be vested ``in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish.'' While the Constitution specifically creates the Supreme Court, it left it to Congress to determine how the Court would operate. For example, it was Congress that fixed the number of justices on the Supreme Court at nine. Likewise, it was Congress that decided that any six of these justices are sufficient to constitute a quorum of the Court. It was Congress that decided that the term of the Court shall commence on the first Monday in October of each year, and it was Congress that determined the procedures to be followed whenever the Chief Justice is unable to perform the duties of his office. Beyond such basic structural and operational matters, Congress also controls more substantive aspects of the Supreme Court. Most importantly, it is Congress that in effect determines the appellate jurisdiction of the Supreme Court. Although the Constitution itself sets out the appellate jurisdiction of the Court, it provides that such jurisdiction exist ``with such exceptions and under such regulations as the Congress shall make.'' In the early days of the Supreme Court, Chief Justice Marshall, writing for the Court in Durousseau v. United States, recognized that the power to make exceptions to the Court's jurisdiction is the equivalent of the power to grant jurisdiction, since exceptions can be ``implied from the intent manifested by the affirmative description [of jurisdiction].'' The Supreme Court recognized the power of Congress to control its appellate jurisdiction in a dramatic way in the famous 1868 case of Ex Parte McCardle. In this case, McCardle, a newspaper editor, was being held in custody by the military for trial on charges stemming from the publication of articles alleged to be libelous and incendiary. McCardle petitioned the Supreme Court for a writ of habeas corpus. The Court heard his case but, before it rendered its opinion, Congress repealed the statute that gave the Supreme Court jurisdiction to hear the habeas appeal. In light of this Congressional action, the Supreme Court felt compelled to dismiss the case for lack of jurisdiction. Some objections have been raised to televised proceedings of the Supreme Court on the ground that it would subject justices to undue security risks. My own view is such concerns are vastly overstated. Well-known members of Congress, walk on a regular basis in public view in the Capitol complex. Other very well-known personalities, presidents, vice presidents, cabinet officers, all are on public view with even incumbent presidents exposed to risks as they mingle with the public. Such risks are minimal in my view given the relatively minor exposure that Supreme Court justices would undertake through television appearances. As I explained earlier, the Supreme Court could, of course, permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating the televising of Supreme Court proceedings and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that their proceedings ought to be better known to the public; and, in the absence of Court rule, public policy would be best served by enactment of legislation requiring the televising of Supreme Court proceedings. This legislation embodies sound policy and will prove valuable to the public. I urge my colleagues to support this bill. I ask unanimous consent that the text of the bill be printed in the Record. There being no objective, the bill was ordered to be printed in the Record, as follows:

Mr. SPECTER

Mr. SPECTER. Mr. President, the answer to that is, we will work around it. We will proceed, and we will get the nominee voted out of committee. We can accommodate it. That is the answer.

Mr. SPECTER

Mr. SPECTER. Mr. President, I wish to describe my amendment to the fiscal year 2006 Agriculture appropriations legislation. My amendment would extend the Milk Income Loss Contract, MILC, program for 2 years. It is imperative that we extend this crucial program for our dairy farmers that expires at the end of this month. The MILC program provides a safety-net for farmers when the price of milk falls below a set price per hundredweight, or 100 pounds of milk, roughly 11 gallons. Dairy farmers in Pennsylvania, and across the country, are an integral component of our rural economy. In Pennsylvania alone, agriculture is our No. 1 industry with dairy being the largest sector composing over 40 percent of the industry. We need to ensure that dairy farmers, like most farmers in America, have the protection needed when the price they receive for their milk falls. During the consideration of the 2002 farm bill, I coauthored this program to provide payments to dairy farmers when the price of Class I fluid milk falls below $16.94 per hundredweight. This program applies to all dairy farmers in the United States, from my former home State of Kansas to Oregon to Georgia and all the way up to Maine. When the milk prices are low, as they were in 2002 and part of 2003, the MILC program partially supplements dairy farm income to bridge the gap until prices recover. When the milk prices are strong, the program is dormant. This was the case for most of 2004 and 2005. However, one payment of 3 cents per hundredweight was made in June. However, dairy economists forecast that the price of milk will fall in 2006 below the set price established in the MILC program. Thus, there is an urgency to extend this program to ensure that our dairy farmers continue to have the safety-net of the MILC program. If prices fall and the MILC program is not in place, our farmers will suffer tremendous losses. I urge my fellow Senators to support this amendment and America's dairy farmers. notice of intent

Mr. SPECTER

Mr. SPECTER. I thank the Chair, yield the floor, and, in the absence of any Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER. Mr. President, I have sought recognition to speak about the confirmation of Judge John G. Roberts, Jr., to be Chief Justice of the United States. Mr. President, no vote cast by a Senator in this body is more important than a vote cast on the confirmation of a Supreme Court Justice, with the exception of a declaration of war, or a resolution authorizing the use of force. The confirmation process for Chief Justice is obviously somewhat more important than that for Associate Justice. It is even more important in the context of Judge Roberts who is 50 years old and has the potential to serve for decades in that very key position, as the second youngest Chief Justice in the history of the country and the 17th Chief Justice in our Nation's history. Judge Roberts comes to this position with an extraordinary academic record--3-year graduate of Harvard College summa cum laude, magna cum laude in the Harvard Law School, and an illustrious career in private practice and government service. He argued some 39 cases before the Supreme Court of the United States. We have examined some 76,000 documents. We have looked at his participation in some 327 cases in the Court of Appeals for the District of Columbia Circuit, where he was confirmed by the Senate 2 years ago by unanimous consent. We have seen his briefs in the Solicitor General's Office, and we have heard some 31 witnesses regarding his nomination. These included a witness from the American Bar Association, which rated him unanimously well qualified, the highest recommendation possible. The remaining thirty witnesses, who were chosen equally by the Democrats and the Republicans, testified at length about Judge Roberts' career. We know a great deal about Judge Roberts. Based on all of these proceedings, including 17 hours of testimony before the committee, it is my judgment he is well qualified to be Chief Justice of the United States. I intend to vote aye when his nomination is called before the Senate. He has taken a position that a judge should be modest and should look for stability in the law. On a number of occasions in his testimony before the committee, he emphasized the point that judges are not politicians and that judges ought not inject their own personal views into the law. He commented about the flexibility of the law, saying that principles such as equal protection and due process were meant to last through the ages and have a flexible quality. He said, ``They [referring to the framers] were crafting a document that they intended to apply in a meaningful way down through the ages.'' While he would not accept the specific language of Justice John Marshall Harlan II that the Constitution is a living thing, he did testify that the language of liberty and due process has broad meaning as applied to evolving societal conditions. He talked very directly when questioned about the right of privacy. He said that Griswold v. Connecticut, which established the right of privacy, was correctly decided. That case overturned the state law prohibiting the use of contraceptives for married people. He also said the holding of Griswold would apply to single people as well as to married people under the Eisenstadt decision. When it came to the critical question of Roe v. Wade, I did not ask him whether he would affirm or reject the Roe doctrine. I did not do so because I believe it is inappropriate to ask a nominee how he would decide a specific case. As chairman, it was my view that any member could ask the nominee any question that the member chose to, and the nominee would be free to respond as he chose. Beyond refraining from specifically asking whether he would affirm or overrule Roe v. Wade, others and I questioned him extensively about the import of stare decisis, the Latin term meaning ``let the decision stand.'' He emphasized that stare decisis was a very important principle in the law and that even where a justice might consider Roe wrongly decided, it takes more to overturn a precedent than simply to conclude it was wrongly decided initially. Because--and this is Arlen Specter speaking, not Judge Roberts--where the case has stood for some 32 years and has been reaffirmed most emphatically in Casey v. Planned Parenthood, it has become, as some have called it, a super precedent. I then made the point that the Supreme Court had taken up the issue so that Roe could have been reversed, overruled on some 38 occasions. Should it come before the Court again, perhaps the balance of the 38 cases would make super-duper precedent to uphold Roe. The question remains as to how he will rule. Nobody knows that for certain. The one rule that seems to be the most prevalent one is the one of surprise. He testified extensively about his concern for civil rights. He talked about affirmative action. He agreed with Justice O'Connor that the impact of the people in the practical everyday world was of considerable importance. I questioned him about his participation in the case of Romer v. Evans, where he lent some counsel to the lawyers who were arguing the case involving gay rights and he participated in support of gay rights. His partner at Hogan and Hartson, Walter Smith, had this to say about Judge Roberts' participation in that case. Mr. Smith said that ``every good lawyer knows that if there is something in his client's cause that so personally offends you morally, ligiously, or if it so offends you that you think it would undermine your ability to do your duty as a lawyer, then you shouldn't take it on, and John wouldn't have. So at a minimum he had no concerns that would rise to that level.'' I then asked Judge Roberts if he agreed with Mr. Smith's analysis and if he would have refrained from helping in that situation, and he said: ``I think it's right that if it had been something morally objectionable, I suppose I would have.'' His support of gay rights is not an insignificant consideration in our evaluation of his views of civil rights. Judge Roberts made quite a point of contending that he had answered more questions than most, and I think to some extent he did. He articulated the standard that he would answer the questions unless the case was likely to come before the Court. Some of his predecessors have refused to answer any questions at all. As I have said, from time to time, when Justice Scalia appeared before the Judiciary Committee, he wouldn't answer much. Even prisoners of war are compelled to give their name, rank, and serial number; Judge Scalia would only give his name and rank. He wouldn't give his serial number. I say that in a metaphor. Justice Scalia would not say if he would uphold Marbury v. Madison, which is an 1803 decision establishing the supremacy of the Supreme Court, the duty of the Supreme Court, and the responsibility and authority of the Court to interpret the Constitution. Judge Roberts did comment on Griswold and Eisenstadt and quite a number of specific cases as he went along. There were some cases where he would not answer where I candidly thought he should have answered, but my rule is that the Senator asks the questions, the nominee responds, and it is a political judgment as to whether the nominee has responded sufficiently to warrant or merit confirmation or the Senator's vote. For some time now, I have expressed my concern, a concern which was shared by the distinguished Senator from Ohio, Senator DeWine, who now occupies the chair of the Presiding Officer. Senator DeWine raised a line of questions, as I did. I raised a question about the case of United States v. Morrison where the Supreme Court declared part of the legislation unconstitutional, legislation designed to protect women against violence. I pointed to the very extensive record on surveys in 21 days and 8 separate reports. The Court, in a 5-to-4 decision, determined that the legislative record was insufficient, but it seemed to me that it was probably the case that the record was more than sufficient. This is what I consider to be an encroachment on congressional authority. The majority opinion, after reviewing that record, said it was insufficient because they disagreed with the congressional ``method of reasoning.'' The question I have about that is, Who are they--the Supreme Court Justices--to say that their ``method of reasoning,'' is superior to ours? What happens when you leave the columns of the Senate, which are directly aligned with the columns of the Supreme Court, and walk across the green? Is there some superiority of competency there? The dissent pointed out that the majority opinion was saying that there was some sort of unique judicial competence on the method of reasoning. The inference there is that there is some congressional incompetence. I reject that. And I believe the Constitutional separation of powers rejects that. Where there is an expansive record, as we had in United States v. Morrison, it ought to have been upheld. It is a derogation of congressional authority and insulting to question our method of reasoning. I asked him about the two cases where the Supreme Court interpreted the Americans With Disabilities Act 3 years apart, 2001 and 2004. In Garrett v. Alabama, by a 5-to-4 decision, the Court ruled unconstitutional the part of the Americans with Disabilities Act which protected against discrimination in employment; and then, 3 years later, in Tennessee v. Lane, again by a 5-to-4 vote, the Supreme Court upheld the application of the section of the Americans With Disabilities Act concerning access to public accommodations for a paraplegic who had to crawl up the steps to get to a courtroom. The records were identical as to both of the sections in the same act. You had the same voluminous record presented. In dissent, in the Lane case, Justice Scalia called it a ``flabby test.'' He said that where the Court has used a standard of what they called ``congruence and proportionality,'' that it was ill-advised. Justice Scalia said the Court was really making itself the taskmaster of the Congress and, in effect, treating us like schoolchildren. Now, where did this test, ``congruence and proportionality,'' come from? It came out of thin air. In 1997, in the Boerne case where the Court declared the Religious Restoration Act unconstitutional, they came up with this test which has not a scintilla of objective meaning. How can the Congress figure out what it is that the Supreme Court has in mind? They go 5 to 4 on one title of the Americans with Disabilities Act and 5 to 4 the other way on another title of the Americans with Disabilities Act. Frankly, I thought the committee and the Senate were entitled to answers on those questions, but Judge Roberts declined to answer. That is a work in process. We are not putting that one down. There are some things which the Congress can do about that to assert congressional power, and it will be pursued. On the issue of Judge Roberts being Chief Justice, it is an intriguing prospect for a man of 50 to take over the Court where Judge Stevens is 35 years his senior; Justice Scalia is 18 years his senior; even Justice Thomas, the youngest of those on the Court at the moment, is 7 years his senior. I asked Judge Roberts about that, both in the informal session in my office and in the Senate hearing. He described his work as being an advocate before the Court as a ``dialogue among equals.'' I thought that was a fascinating evaluation. In the Supreme Court--and I have had occasion to be there three times--a lawyer stands on one level, and the Court is on a higher level. I do not exactly perceive it personally as a dialogue among equals, but I consider it fascinating that he did. Perhaps when you have been there 39 times, the level of inequality levels out. But he has an opportunity, from his vantage point, knowing the Justices, as he does, having been there so long, and having been a clerk for Justice Rehnquist when he was an Associate Justice back in 1980, to do something about these 5-to-4 decisions. There was a discussion about what Chief Justice Earl Warren did in bringing the Court together. When he was appointed Chief Justice in 1953, he molded a unanimous opinion in Brown V. Board of Education--if not the most important case in the Court's history certainly one of the most important cases, and one of the most contentious cases. However today we see a plethora of 5-to-4 decisions--a recent case involving the Americans with Disabilities Act being one illustration, but there are many others; you had the Ten Commandments cases this year where the Court said it was OK for the State of Texas to have the Ten Commandments on a tower but unconstitutional for Kentucky to display the Ten Commandments indoors, in two decisions whose results absolutely defy logic or are inexplicable. I have also been troubled by the modern tendency to have so many concurrences and dissents. Before the Judiciary Committee held hearings regarding the detainees at Guantanamo Bay, I read three Supreme Court opinions from June of 2004. They were a maze of confusion as you tried to work your way through them. One was a plurality opinion. Only four Justices could agree. They did not have the opinion of the Court, and the other cases were replete with multiple opinions as well. Currently you have a situation where Justice A will write a concurring opinion, joined by Justice B; and then Justice B will write a concurring opinion, joined by Justice A and Justice C. You wonder, why so many opinions? Judge Roberts commented and testified he thought that was a matter the entire Court should work on, and certainly one he would pledge to work on himself. The subtle ``minuet'' of the confirmation hearings for Judge Roberts turned bombastic and contentious at times, but he always kept his cool and responded within reasonable parameters. The Judiciary Committee and the full Senate cannot be guarantors that Judge Roberts will fulfill our's or anyone's expectations. The Court's history is full of Justices who have surprised or disappointed their appointers or inquisitors. But the process has been full, fair, and dignified. I think Judge Roberts went about as far as he could go in answering the questions and declining to answer questions on cases likely to come before the Supreme Court. When you consider all of the factors--his academic record, his professional record, his record on the court of appeals, the witnesses who testified who have known him intimately--it is my judgment he is well qualified and should be confirmed as the next Chief Justice of the United States, the 17th Chief Justice of the United States. When the roll is called, I intend to vote yea. I ask unanimous consent that the full text of my statement be included in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the order for the quorum call be dispensed with.

Mr. SPECTER

Mr. SPECTER. Mr. President, on behalf of myself, Senator Leahy, and my colleagues Senators Hatch, DeWine, Cornyn, Brownback, Voinovich, Feingold, Levin, Bayh, Reed, and Stabenow, I seek recognition to introduce the Stop Counterfeiting in Manufactured Goods Act, a bill that amends title 18 of the United States Code to provide criminal penalties for trafficking in counterfeit marks. This legislation closes a loophole in Federal trademark law, which currently criminalizes the trafficking in counterfeit trademarks ``on or in connection with goods or services.'' This language, however, does not extend criminal liability to those persons who manufacture and/or traffic the counterfeit marks themselves, marks which are later applied to a product or service. In other words, Federal law does not prohibit a person Tom selling counterfeit labels bearing otherwise protected trademarks within the United States. This current loophole was created in large part by the Tenth Circuit's opinion in United States v. Giles, 213 F.3d 1247 (10th Cir. 2000). In this case, the United States prosecuted the defendant for manufacturing and selling counterfeit Dooney & Bourke labels that third parties could later affix to generic purses. Examining Title 18, section 2320, of the United States Code, the Tenth Circuit held that persons who sell counterfeit trademarks that are not actually attached to any ``goods or services'' do not violate the Federal criminal trademark infringement statute. And because the defendant did not attach the counterfeit mark to a ``good or service,'' the court found that the defendant did not run afoul of the criminal statute as a matter of law. Thus, an individual, caught red-handed with counterfeit trademarks, walked free. Congress must act now to close this loophole, which this legislation being introduced today will most certainly do. Specifically, the bill will prohibit the trafficking, or attempt to traffic, in ``labels, patches, stickers'' and generally any item to which a counterfeit mark has been applied. In addition to closing the loophole, the Stop Counterfeiting in Manufactured Goods Act strengthens the criminal code's forfeiture provision by providing enhanced penalties for those trafficking in counterfeit marks, goods and services bearing counterfeit marks. Current law does not provide for the seizure and forfeiture of goods and services bearing counterfeit marks. As such, many times such counterfeit goods are seized one day, only to be returned and sold to an unsuspecting public. To ensure that individuals engaging in the practice of trafficking in counterfeit marks cannot reopen their doors, this bill provides procedures for the mandatory seizure, forfeiture, and destruction of counterfeit marks pre-conviction. Further, it provides for procedures for the mandatory forfeiture and destruction of property derived from or used to engage in the trafficking of counterfeit marks. The trade in counterfeit marks is only part of a much larger problem. The Bureau of Customs and Border Protection estimates that trafficking in counterfeit goods costs the United States approximately $200 million annually. With each passing year, the United States loses millions of dollars in tax revenues to the sale of counterfeit goods. Further, counterfeit items manufactured overseas and distributed in the United States cost American workers tens of thousands of jobs. This is a problem that we can no longer ignore. The trafficking in counterfeit goods and marks is not limited to those of the popular designer goods that we have all seen sold on corners of just about every major metropolitan city in the United States. Counterfeited products can range from children's toys to clothing to Christmas tree lights. More disturbing are the potentially hazardous counterfeit automobile parts, batteries, and electrical equipment that are being manufactured and placed into the stream of commerce by the thousands with each passing day. This legislation closes a loophole in the current criminal trademark infringement statute and ensures that it is a crime not only to traffic in goods or services bearing counterfeit marks, but also in the counterfeit marks themselves. Further, this legislation ensures that counterfeit goods and marks seized in violation of this statute are properly disposed of and do not make their way back onto the street. I am pleased to introduce this piece of legislation with my colleagues and hope that it will receive the support that it is due.

Mr. SPECTER

Mr. SPECTER. Mr. President, on behalf of myself, Senator Leahy, and my colleagues Senators Hatch, DeWine, Cornyn, Brownback, Voinovich, Feingold, Levin, Bayh, Reed, and Stabenow, I seek recognition to introduce the Stop Counterfeiting in Manufactured Goods Act, a bill that amends title 18 of the United States Code to provide criminal penalties for trafficking in counterfeit marks. This legislation closes a loophole in Federal trademark law, which currently criminalizes the trafficking in counterfeit trademarks ``on or in connection with goods or services.'' This language, however, does not extend criminal liability to those persons who manufacture and/or traffic the counterfeit marks themselves, marks which are later applied to a product or service. In other words, Federal law does not prohibit a person Tom selling counterfeit labels bearing otherwise protected trademarks within the United States. This current loophole was created in large part by the Tenth Circuit's opinion in United States v. Giles, 213 F.3d 1247 (10th Cir. 2000). In this case, the United States prosecuted the defendant for manufacturing and selling counterfeit Dooney & Bourke labels that third parties could later affix to generic purses. Examining Title 18, section 2320, of the United States Code, the Tenth Circuit held that persons who sell counterfeit trademarks that are not actually attached to any ``goods or services'' do not violate the Federal criminal trademark infringement statute. And because the defendant did not attach the counterfeit mark to a ``good or service,'' the court found that the defendant did not run afoul of the criminal statute as a matter of law. Thus, an individual, caught red-handed with counterfeit trademarks, walked free. Congress must act now to close this loophole, which this legislation being introduced today will most certainly do. Specifically, the bill will prohibit the trafficking, or attempt to traffic, in ``labels, patches, stickers'' and generally any item to which a counterfeit mark has been applied. In addition to closing the loophole, the Stop Counterfeiting in Manufactured Goods Act strengthens the criminal code's forfeiture provision by providing enhanced penalties for those trafficking in counterfeit marks, goods and services bearing counterfeit marks. Current law does not provide for the seizure and forfeiture of goods and services bearing counterfeit marks. As such, many times such counterfeit goods are seized one day, only to be returned and sold to an unsuspecting public. To ensure that individuals engaging in the practice of trafficking in counterfeit marks cannot reopen their doors, this bill provides procedures for the mandatory seizure, forfeiture, and destruction of counterfeit marks pre-conviction. Further, it provides for procedures for the mandatory forfeiture and destruction of property derived from or used to engage in the trafficking of counterfeit marks. The trade in counterfeit marks is only part of a much larger problem. The Bureau of Customs and Border Protection estimates that trafficking in counterfeit goods costs the United States approximately $200 million annually. With each passing year, the United States loses millions of dollars in tax revenues to the sale of counterfeit goods. Further, counterfeit items manufactured overseas and distributed in the United States cost American workers tens of thousands of jobs. This is a problem that we can no longer ignore. The trafficking in counterfeit goods and marks is not limited to those of the popular designer goods that we have all seen sold on corners of just about every major metropolitan city in the United States. Counterfeited products can range from children's toys to clothing to Christmas tree lights. More disturbing are the potentially hazardous counterfeit automobile parts, batteries, and electrical equipment that are being manufactured and placed into the stream of commerce by the thousands with each passing day. This legislation closes a loophole in the current criminal trademark infringement statute and ensures that it is a crime not only to traffic in goods or services bearing counterfeit marks, but also in the counterfeit marks themselves. Further, this legislation ensures that counterfeit goods and marks seized in violation of this statute are properly disposed of and do not make their way back onto the street. I am pleased to introduce this piece of legislation with my colleagues and hope that it will receive the support that it is due.

Mr. SPECTER

Mr. SPECTER. I assure my colleagues and my constituents that I will be monitoring this situation as the current mercury rule is litigated in the court system and as EPA considers further mercury emission control options.

Mr. SPECTER. Mr. President, I have sought recognition to give my reasons for voting against the so-called Leahy-Collins resolution. I believe mercury pollution is a real problem, particularly for vulnerable populations, including children. Given these concerns, I support efforts to reduce mercury emissions from coal-fired power plants, which account for 42 percent of U.S. emissions. This is in line with my support for many years for clean coal technologies, which will allow our Nation to utilize our most abundant natural resource in a cleaner, more efficient manner. Debate on this resolution has revolved around two regulatory approaches--a maximum available control technology, MACT, rule or a cap-and-trade rule. I suggest that there is a third option that combines elements of both. A MACT system is enormously expensive on its own, costing up to $358 billion according to the Energy Information Administration, compared to $2 billion estimated by EPA for a cap-and- trade approach. However, a cap-and-trade-only system is inadequate on reducing pollution levels around specific plants, referred to as ``hot spots.'' The Leahy-Collins resolution would tie EPA's hands by restricting it to a MACT-only approach. Under a third option, EPA could set a national emissions level, based on the best available science to protect public health and the environment, and implement a cap-and-trade system to meet this goal with the addition of measures to take care of hot spots, EPA could require reductions at specific plants. To this end, I have written the Administrator of the EPA urging this hybrid approach, which would meet environmental goals while balancing the implementation costs faced by consumers. I ask unanimous consent that my letter to EPA Administrator Johnson be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to support legislation that is urgently needed in light of the devastation caused by Hurricane Katrina. This legislation would authorize Federal circuit, district, and bankruptcy courts to conduct special sessions outside their respective boundaries in times of emergency. Currently there is no authority in the law for Federal courts to hold session beyond their geographical districts. The need for such authority initially became apparent following the terrorist attacks of September 11, 2001. Those attacks seriously impaired Federal court operations in New York City at the time. Court facilities available in nearby districts, such as New Jersey, could have alleviated the disruption in court services, but the authority provided in this legislation did not exist. The recent impact of Hurricane Katrina on the Federal courts in Louisiana, Alabama, and Mississippi has heightened the urgency of congressional action on this proposal. When emergencies, whether they be natural disasters or terrorist attacks, make shifting court operations to other court facilities within the affected district impossible, a Federal court facility in an adjoining district or circuit might be more readily and safely available to court personnel, litigants, jurors, and the public. The widespread flooding and vast destruction caused by Hurricane Katrina has created precisely this scenario. All of the Federal court facilities in the Eastern District of Louisiana are severely damaged and will not be available for a significant period of time. Courthouses have roof and window damage, extensive water infiltration, and no electrical power. Senior court management are meeting in Lafayette to discuss finding viable and possibly long-term alternative sites for court operations for that entire district, but such alternative sites most certainly must be outside the geographical boundaries of that district. Federal courts in the Middle and Western Districts of Louisiana are expected to remain open for business and possibly could provide temporary courtroom facilities, and the judiciary will be exploring these and other possibilities if given the authority proposed in this bill. In the Southern District of Alabama, seawater has flooded the basement of the Mobile, AL, courthouse, and debris is scattered throughout the grounds. The court does not know when that facility will become operational again, and this court too, may have to be temporarily relocated outside of the district. Similarly, in the Southern District of Mississippi, seawater has flooded the Gulfport facility, and communications and electrical power are down. Court operations in the Gulfport area have been shifted within that district to the court facility in Jackson, MS. The Fifth Circuit operations in New Orleans are completely closed and will remain so for the foreseeable future. In the meantime, the judiciary has undertaken efforts to determine how much of the Fifth Circuit operations in New Orleans can be shifted within the circuit to Houston, and for what period of time. The Federal courts in these areas devastated by Hurricane Katrina simply must be able to shift court proceedings temporarily into a neighboring district. Without this legislation, the Federal criminal justice system risks grounding to a protracted halt throughout the gulf region at a time when it is needed most. This legislation is needed now to avoid undue delay in bringing criminals to swift justice and resolving civil matters important to private citizens, especially bankruptcy proceedings in anticipation of an increase in bankruptcy filings in Hurricane Katrina's wake. The need for this bill was brought to my attention by Judge Edward Becker of the Third Circuit and his colleagues at the Administrative Office of the Federal Courts and it enjoys their strong support. This bill is supported by my Democratic colleague, Senator Leahy, as well as Senators from the States ravaged by Hurricane Katrina. Since this bill is noncontroversial and clearly urgent, it is my hope that it can be passed by unanimous consent before the end of business today.

Mr. SPECTER

Mr. SPECTER. I thank the Chair.