Arlen Specter

Mr. SPECTER

Mr. SPECTER. One of the cases which I studied in law school was the famous dissent by Justice Oliver Wendell Holmes, who argued for dissent and for freedom of speech, saying what I think is, if not the most famous quotation in Supreme Court history--that is pretty hard to categorize--certainly one of the most famous where he said that ``time has upset many fighting faiths.'' That is why we encourage independent thought. That is why we encourage dissent. There are many dissents which have become the law of the land. Dred Scott was overturned. Plessy v. Ferguson on segregation was overturned. Brown v. Mississippi established the rule of due process of law for State court criminal proceedings, and dissenting opinions of Brandeis and Holmes and Cardozo have become the law of the land. So when one sees someone who might not conform exactly to the kind of thought or might be a little more colorful in phraseology, it is not necessarily something to be discouraged. If one takes a close reading as to what Justice Brown has had to say, she is worthy of confirmation by this Senate. As we analyze nominees for the Federal court, as we analyze nominees for any important position, we ought not to discourage individualism, independence, and free thought. The phrase that ``time has upset many fighting faiths,'' encouraging independence and free thought has been a great bulwark for the progress of this country. I yield the floor, and in the absence of any other Senators seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to honor George W. Mullen of Pennsylvania, who will step down as State Adjutant of the Pennsylvania Department of Veterans of Foreign Wars of the United States this June. George's retirement will mark the end of a distinguished 59 year career of service to our military, our veterans community, and our Nation. George W. Mullen joined the United States Navy in 1943 at the age of 17 and served during World War II aboard the merchant ship SS Ben Holt and the destroyer USS Cotton in both the Atlantic and Pacific Theatres. While on active duty aboard the Holt, his ship arrived 2 days after the invasion of Normandy, France, to help supply Allied forces in the battle against Germany. His duty on the Cotton included helping rescue a downed American pilot and supporting the invasion of Okinawa. George worked at the Veterans Affairs Medical Center in Coatesville for 35 years before becoming the Pennsylvania Veterans of Foreign Wars State Adjutant in 1983. As a member of the Pennsylvania War Veterans Council and the Pennsylvania State Veterans Commission, he has been a familiar face to governors and many State and Federal legislators who have sought his guidance. Mr. Mullen, who lives in Parkesburg, has touched many lives and that has not gone unnoticed. He has been honored at the local, State and national level for his many contributions. While humble in service to others, George has always stood for what is right and remains a staunch supporter of our troops. His will be hard shoes to fill, and he will be missed. We wish George and his wife Dawn well in future endeavors, and thank him for his dedication to duty, hard work, and professionalism.

Mr. SPECTER

Mr. SPECTER. Mr. President, as we begin consideration of the nomination of Texas Supreme Court Justice Priscilla Owen for the U.S. Court of Appeals for the Fifth Circuit, the Senate Chamber is filled with anticipation that we may be embarking on a historic debate which could redefine minority rights in the Senate and impact our fundamental constitutional doctrine of separation of powers. As we all know, if 60 votes are not obtained to invoke cloture to cut off debate on this nominee and three others to be called up sequentially for confirmation votes, a ruling is likely to be sought to change the required vote from 60 to 51, unless a compromise can first be reached. This controversy did not arise, in my judgment, because Democrats concluded that Miguel Estrada and nine other President Bush circuit court nominees were unqualified, so they should be filibustered, but rather because it was payback time for Republican treatment of President Clinton's nominees. While there have been a few scattered cloture votes in the history of the Senate, it is totally unprecedented for a party to engage in such a systematic pattern of filibusters. In almost 25 years on the Judiciary Committee, I have seen circuit court nominees confirmed routinely where their qualifications were no better than those under fire today. These filibusters are the combination of a power struggle between Republicans and Democrats as to which party can control the judicial selection process through partisan maneuvering. As a starting point, it is important to acknowledge that both sides-- Democrats and Republicans--have been at fault. Both claim they are the victims and that their party's nominees have been treated worse than the other's. Both sides cite endless statistics. I have heard so many numbers spun so many different ways that my head is spinning. I think even Benjamin Disraeli, the man who coined the phrase, there are ``lies, damn lies, and statistics,'' would be amazed at the creativity employed by both sides in contriving numbers in this debate. In 1987, upon gaining control of the Senate and the Judiciary Committee, the Democrats denied hearings to seven of President Reagan's circuit court nominees and denied floor votes for two additional circuit court nominees. As a result, the confirmation for Reagan circuit nominees fell from 89 percent prior to the Democratic takeover to 65 percent afterwards. While the confirmation rate decreased, the length of time it took to confirm judges increased. From the Carter administration through the first 6 years of the Reagan administration, the confirmation process for both district and circuit court seats consistently hovered at approximately 50 days. For President Reagan's final Congress, however, the number doubled to an average of 120 days for these nominees to be confirmed. The pattern of delay and denial continued for 4 years of President George H.W. Bush's administration. President Bush's lower court nominees waited on average 100 days to be confirmed, which is about twice as long as had historically been the case. The Democrats also denied hearings for more nominees. President Carter had 10 nominees who did not receive hearings. For President Reagan, the number was 30. In the Bush senior administration, the number jumped to 58. When we Republicans won the 1994 election and gained the Senate majority, we exacerbated the pattern of delay and blocking of nominations. Over the course of President Clinton's Presidency, the average number of days for the Senate to confirm judicial nominees increased even further to 192 days for district court nominees and 262 days for circuit court nominees. Through blue slips and holds, 70 of President Clinton's nominees were blocked. During that time, I urged my Republican colleagues on the Judiciary Committee to confirm well-qualified Democrats. For example, I broke rank with my colleagues on the Republican side to speak and vote in favor of Marsha Berzon and Richard Paez. After the 2002 elections, with control of the Senate returning to Republicans, the Democrats resorted to the filibuster on 10 circuit court nominations, which was the most extensive use of that tactic, really unprecedented, in the Nation's history. The filibuster started with Miguel Estrada, one of the most competent and talented appellate lawyers in the country. The Democrats followed with filibusters against nine other circuit court nominees. During the 108th Congress, there were 20 cloture motions on 10 nominations, and all 20 failed. To this unprecedented move, President Bush responded by making for the first time in the Nation's history two recess appointments of nominees who had been successfully filibustered by the Democrats. That impasse was broken when President Bush agreed to refrain from further recess appointments. Against this background of bitter and angry recriminations, with each party serially trumpeting the other party to get even or really to dominate, the Senate now faces dual threats. One called the filibuster and the other the constitutional or nuclear option which rivals the U.S.-U.S.S.R. confrontation of mutual assured destruction. Both situations are accurately described by the acronym, MAD. We Republicans are threatening to employ the constitutional or nuclear option to require only a majority vote to end judicial filibusters. The Democrats are threatening to retaliate by stopping the Senate agenda on all matters except national security and homeland defense. Each ascribes to the other the responsibility for blowing up the place. This gridlock occurs at a time when we expect a U.S. Supreme Court vacancy within the next few months. If a filibuster would leave an eight-person Court, we could expect many 4-to-4 votes since the Court now decides cases with 5-to-4 votes. A Supreme Court tie vote would render the Court dysfunctional leaving in effect the circuit court decision with many splits among the circuits, so the rule of law would be suspended on many major issues. Regardless of which side wins the vote on the constitutional or nuclear option, there would be serious consequences. If the option succeeds, first, the rights of the Senate's minority would be significantly diminished, and, second, reducing the cloture vote on nominees would inevitably and ultimately invite a similar attack on cloture on the legislative calendar which would change the nature of the Senate tremendously. On the other hand, if the option fails, there are undesirable consequences. Then, any Senate minority party of 41 or more would be emboldened to institutionally and permanently revise the balance of power between the President's constitutional power of nominations and the Senate's constitutional authority for confirmation. Second, I think it would embolden the Democrats to use the filibuster on other Presidential nominations, such as John Bolton whose nomination is pending before the Senate for ambassador to the U.N. After a Democratic member of the Foreign Relations Committee put a hold on the Bolton nomination, the ranking member was quoted on a Sunday talk show as saying: It's too premature to talk about filibustering Mr. Bolton. Therefore, it is obvious that a filibuster on Bolton is not ruled out. A vote on the constitutional or nuclear option could affect an imminent nomination or nominations to the Supreme Court. If a vote on the option failed, it would be a reaffirmation of the Democratic minority's power to filibuster any judicial nominee without necessarily showing substantial cause or extraordinary circumstances. If the option passed, it could give the President greater leverage, reducing his concern that his nomination could be thwarted. Historically--and I believe this is of tremendous importance, Mr. President--historically, the constitutional separation of powers has worked best when there was a little play in the so-called joints. When both sides are unsure of the outcome, the result is more likely to be in the middle rather than at either extreme. On the current state of the record, in my opinion, the outcome of a prospective vote on the constitutional or nuclear option is uncertain. I have not rendered a decision because I believe I can be most helpful on brokering a compromise by remaining silent. When neither side is confident of success-- and I think that is the case today--the chances for compromise are far greater. As I see it, the national interest would be served by structuring a compromise to return to the status quo before 1987. When Senator Harry Reid, the Democratic leader, says his party would abandon the filibuster unless there are ``extraordinary circumstances,'' that escape clause should be narrowly defined and codified in a Senate rule instead of an agreement between the parties' leaders. Even with a narrowly defined definition of what constitutes extraordinary circumstances, the final decision would necessarily reside with the individual Senators in the case of any perceived ambiguity. If we Republicans then concluded that there was not a good- faith exercise of extraordinary circumstances, we could regard the agreement as vitiated and feel free to resort to the constitutional or nuclear option. To achieve a compromise, Senators must take the initiative without being unduly influenced by the far left or far right. It has not escaped attention that the so-called groups are using this controversy as major fundraising vehicles. I continue to be personally highly offended by the commercials, from Gregory Peck in 1987 to the ones broadcast this weekend in Pennsylvania, seeking to influence my own vote. Believe me, they are counterproductive or ineffectual at best and certainly insulting. Senators, with our leaders, must take charge to craft a way out. The fact is, all or almost all of the Senators want to avoid the pending crisis. I have had many conversations with my Democratic colleagues about the filibuster of judicial nominees. Many of them have told me they do not personally believe it is a good idea to filibuster President Bush's judicial nominees in such a pattern. They believe this unprecedented use of a filibuster does damage to this institution and to the prerogatives of the President. Yet despite their concerns, they have given in to party loyalty and voted repeatedly to filibuster Federal judges in the last Congress. Likewise, there are many Republicans in this body who question the wisdom of the constitutional or nuclear option. They recognize that such a step would be a serious blow to the rights of the minority that have always distinguished this body from the House of Representatives. Knowing that the Senate is a body that depends upon collegiality and compromise to pass even the smallest resolution, many of my Republican colleagues worry that the rule change would impair the ability of the institution to function. I have repeatedly heard colleagues on both sides of the aisle say it is a matter of saving face. But as yet, we have not found a formula to do so. I suggest the way to work through the current impasse is to bring to the floor circuit court nominees one by one for up-or-down votes with both leaders explicitly releasing their Members from party- line voting. There are at least five, and perhaps as many as seven, pending circuit court nominees who could be confirmed or at least voted up or down. If the straitjacket of party loyalty were removed, even more might be confirmed. In moving in the Judiciary Committee to select nominees for floor action shortly after becoming chairman earlier this year, I first selected William Myers because two Democrats had voted to end debate in the 108th Congress and one candidate for the Senate in 2004 since elected made a campaign statement that he would vote to end the Myers filibuster and confirm him. Adding those 3 votes to 55 Republicans, we were within striking distance to reach 60 or more. I carefully examined Myers' record. Noting that he had opposition from some groups such as Friends of the Earth and the Sierra Club, it was my conclusion that nonetheless his environmental record was satisfactory, or at least not a disqualifier, as detailed in my statement at the Judiciary Committee executive session on March 17. To be sure, critics could pick at his record, as they could at any Senator's record, but overall, in my judgment, Mr. Myers was worthy of confirmation. I then set out to solicit views on Myers, including the ranchers, loggers, miners, and farmers. In those quarters, I found significant enthusiasm for his confirmation. I then urged them to have their members contact Senators who might be swing votes. I then followed up with personal talks to many of those Senators and found several prospects to vote for cloture. Then the screws of party loyalty were applied and tightened, and the prospects for obtaining the additional votes to secure 60 for cloture-- the prospects vanished. I am confident that if the party pressure had not been applied, the Myers filibuster would have ended, and he would have been confirmed. That result could still be obtained if the straitjacket of party loyalty were removed on the Myers nomination. Informally, but authoritatively, I have been told that the Democrats will not filibuster Thomas Griffith or Judge Terrence Boyle. Griffith is on the Senate calendar awaiting floor action and Boyle is on the agenda for Judiciary Committee action. Both could be confirmed this month. There are no objections to three nominations from the State of Michigan for the Sixth Circuit, Richard Griffin, David McKeague and Susan Neilsen, but their confirmations are held up because of objections to a fourth nominee. I urge my Democratic colleagues to confirm these three uncontested Michigan Sixth Circuit nominees and fight out the fourth vacancy and the Michigan District Court vacancies on another day. The Michigan Senators do make a valid point on the need for consultation on the other Michigan vacancies, and I believe that can be accommodated. In the exchange of offers and counteroffers between Senator Frist and Senator Reid, Democrats have made an offer to avoid a vote--on the nuclear option--by confirming one or perhaps two of the four filibustered judges: Priscilla Owen, Janice Rogers Brown, William H. Pryor, or William Myers, with the choice to be selected by Republicans. An offer to confirm any one or two of four nominees is an explicit concession that each is qualified for the court and that they are being held hostage as pawns in a convoluted chess game which has spiraled out of control. If the Democrats really believe each one is unqualified, a deal for confirmation for any one of them is repugnant to the basic Democratic principle of individual fair and equitable treatment and violates Senators' oaths on the constitutional confirmation process. Such a deal on confirmations would only confirm public cynicism about what goes on in Washington behind closed doors. Instead, let the Senate consider each of the four without the constraints of party-line voting. Let both leaders release their caucuses from the straitjacket of party-line voting and even encourage Members to vote their consciences on these issues of great national importance. Let us revert to the tried-and-tested method of evaluating each nominee individually. In a ``press availability'' on March 10, Senator Reid referred to the nuclear option and said: If it does come to a vote I ask Senator Frist to allow his Republican colleagues to follow their conscience. Senator Specter recently said that Senators should not be bound by Senate loyalty--they should be bound by Senate loyalty rather than by party loyalty on a question of this magnitude. I agree. But Senator Reid did not make any reference to my urging him to have the Democrats reject the party-line straitjacket on filibustering. If both parties were to vote their consciences without regard to the party line, I believe that the filibusters would disappear in the context of the current constitutional crisis and many, if not most, Republicans who do not like the constitutional/nuclear option would abandon it. The fact is that any harm to the Republic, at worst by confirming all of the pending circuit court nominees, is infinitesimal compared to the harm to the Senate whichever way the vote would turn out on the nuclear/constitutional option. None of these circuit judges could make new law because all are bound and each agreed on the record to follow U.S. Supreme Court decisions. While it is frequently argued that circuit court opinions are, in many cases, final because the Supreme Court grants certiorari in so few cases, circuit courts sit in panels of three so that no one of these nominees could unilaterally render an egregious decision, since at least one other circuit judge on the panel must concur. If a situation does arise where a panel of three circuit judges makes an egregious decision, it is subject to correction by the court en banc, and then the case may always be reviewed by the Supreme Court if it is really egregious. While it would be naive to deny that the quid pro quo or log rolling are not frequent congressional practices, these approaches are not the best way to formulate public policy or make governmental decisions. The Senate has a roadmap to avoid the nuclear winter in a principled way. Five of the controversial judges can be brought up for up-or-down votes on this state of the record, and the others are entitled to individualized treatment on the filibuster issue. It may be that the opponents of one or more of these judges may persuade a majority of Senators, including some Republican Senators, that confirmation should be rejected. A group of Republican moderates has, with some frequency, joined Democrats to defeat a party-line vote. The President has been explicit in seeking only up-or-down votes as opposed to commitments on confirmation. The Senate has arrived at this confrontation by exacerbation, as each side ratcheted up the ante in delaying and denying confirmation to the other party's Presidential nominees. The policy of conciliation and consultation could diffuse the situation. One good turn deserves another. If one side realistically and sincerely takes the high ground, there will be tremendous pressure on the other side to follow suit. So far, offers by both sides have been public relations maneuvers to appear reasonable, to avoid blame and place it elsewhere. Meanwhile, the far left and the far right are urging each side to the shun compromise. One side shouts ``pull the trigger.'' The other side retorts, ``filibuster forever.'' Their approach would lead to the extreme judges at each end of the political spectrum as control of the Senate inevitably shifts from one party to another. Late yesterday afternoon, a group of so-called moderate Senators met with the leaders, and one idea which came from one of the Democratic Senators was to consider the five nominees--Owen, Brown, Pryor, and Myers, along with Judge Saad of Michigan--and then to either have three confirmed, two rejected; or two confirmed and three rejected. The suggestion was then made that if all of the nominees could get a floor vote, that there might be a whip check to determine whether two might not pass on a rollcall vote, which is the way the Senate functions. That consideration I think is worth further exploration. A well-known story is told about Benjamin Franklin. Upon exiting the Constitutional Convention in Philadelphia, he was approached by a group of citizens asking what sort of a government the constitutional delegates had created. Franklin responded, ``A Republic, if you can keep it.'' In this brief response, Franklin captured the essential fragility of our great democracy. Although enshrined in a written Constitution and housed in granite buildings, our government is utterly dependent upon something far less permanent, the wisdom of its leaders. Our Founding Fathers gave us a great treasure, but like any inheritance, we pass it on to successive generations only if our generation does not squander it. If we seek to emulate the vision and restraint of Franklin and the Founding Fathers, we can hand down to our children and grandchildren the Republic they deserve, but if we turn our backs on their example, we will debase and cheapen what they have given us. At this critical juncture in the history of the Senate, let us tread carefully, choose wisely, and prove ourselves worthy of our great inheritance. Since the United States and the Union of Soviet Socialist Republics avoided a nuclear confrontation in the Cold War by concessions and confidence-building measures, why should not Senators do the same by crossing the aisle in the spirit of compromise? Mr. President, I now turn to the specifics on the nomination of Texas Supreme Court Justice Priscilla Owen. She comes to the floor of the Senate for consideration with an outstanding academic record. She attended the University of Texas in 1972 and 1973. She graduated from Baylor University in 1975, cum laude, from the Baylor University School of Law in 1977, cum laude, evidencing an excellent academic record. She has a fine professional record with a practice of Sheehy, Lovelace and Mayfield, where she was a law clerk in 1976 and 1977, and then an associate and partner at Andrews, Kurth, Campbell and Jones from 1978 to 1994. From 1995 to the present, she has been a justice on the Supreme Court of Texas. She was at the top of her law school class; in 5 years, completed law school and undergraduate, contrasted with the usual 7. She had the highest score on the statewide bar exam and was reelected with 84 percent of the vote and endorsement of every major newspaper. The American Bar Association has unanimously rated her well qualified. In the course of her work on the Texas Supreme Court, she has handed down many decisions which have demonstrated real analytical and real legal scholarship. She has been criticized on some of the decisions which she has rendered on the so-called judicial bypass. Under the a Texas law, constitutional under U.S. Supreme Court precedent, a minor may have an abortion if there is notice to at least one parent. Justice Owen has been criticized, with a very broad brush, for being hostile to Roe v. Wade, which on the record is simply not true. In the case of Jane Doe (I), in the year 2000, she voted with the majority but filed a concurring opinion. The language she used was that the legislature intended for the minors to learn about arguments ``surrounding abortion'', and not ``against'' abortion. So, in handing down this decision, she was not urging that minors making their decision on obtaining an abortion hear the arguments against abortion, but rather ``surrounding,'' which would obviously state both sides. On cases where she has denied judicial bypass, they have been in the context of sound judicial principle, where she has refused to overturn the findings of the lower court judge who had access to the witnesses and could see and hear exactly what was going on and had a much better basis for fact-finding. Illustrative of this position is the case captioned In re Doe (II), a 2000 Supreme Court of Texas decision where the court reversed and ordered a judicial bypass. It is true Justice Owen was one of three justices who dissented, but she did so because she concluded that the majority improperly reweighed the evidence and usurped the rule of the trial judge. As a sound legal principle, the trial judge is entitled to deference on the findings of fact because the trial judge, rather than the appellate court, has heard the witnesses. There are other notable cases where Justice Owen has handed down thoughtful, informed, scholarly opinions. They have not pleased everyone, but that is what judges do. One case is particularly worthy of note, a case captioned Operation Rescue National v. Planned Parenthood of Houston and Southwest Texas. In this case, doctors and abortion clinics brought action for civil conspiracy, tortious interference, and invasion of privacy and property rights against anti- abortion groups and protesters, seeking injunctive relief and damages. The trial court entered a $1.2 million judgment on jury verdict and a permanent injunction creating buffer zones around certain clinics and homes in which protesters could not protest. The issue was whether the jury verdict was based on a proper jury charge and whether the injunction infringed on the protesters' freedoms of expression. Justice Owen joined the 7 to 2 majority decision which affirmed the jury verdict was proper under Texas law. The decision also upheld the injunction while modifying it in certain respects. Under the majority's opinion, a limited number of peaceful protesters could approach patients and act as sidewalk counselors who would seek to discuss the issues surrounding abortions with patients, as long as such discussions were ceased upon request of the patient. The majority concluded this type of protesting would not endanger patients' health and safety. Following Justice Owen's nomination to the Fifth Circuit, pro-choice groups criticized the ruling as hostile to abortion rights. But at the time the ruling was handed down, Planned Parenthood of Houston and Southwest Texas hailed it as ``a complete and total victory.'' This case is illustrative of some of the difficult issues involved in that kind of a factual situation. In enjoining this kind of harassing practice, subject to certain limitations, and upholding a verdict in excess of $1 million, Justice Owen exercised judicial discretion and sensibility in arriving at the decision. In the case of Ft. Worth Osteopathic Hospital, Inc. v. Reese, Justice Owen handed down decisions demonstrating respect for Roe v. Wade under a factual situation where plaintiffs brought wrongful death and survival action on behalf of a viable fetus who died in utero against the treating physicians and the hospital and also brought medical negligence claims in their individual capacities. Justice Owen joined the Texas Supreme Court's 8-to-1 decision holding that the Texas wrongful death and survival statutes do not violate the equal protection clause by prohibiting parents of a stillborn fetus from bringing those claims. Justice Owen, in joining in that decision, was explicitly following the precedent of Roe v. Wade. There is a series of cases which illustrates judicial temperament, judicial demeanor, a sound judicial philosophy, which I ask unanimous consent to have printed in the Record: First, Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999); second, In Re D.A.S., 973 S.W.2d 296 (Tex. 1998); third, Abrams v. Jones 35 S.W.3d 620 (Tex. 2000); fourth, Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1999); fifth, Hernandez v. Tokai Corporation, 2 S.W.3d 251 (Tex. 1999); sixth, NME Hospitals v. Rennels, 994 S.W.2d 142 (Tex. 1999); next, Kroger Company v. Keng, 23 S.W.3d 347 (Tex. 2000); and, Crown Life Insurance Company v. Casteel, 22 S.W.3d 378 (Tex. 2000), all of which show Justice Owen to be a very sound jurist and worthy of confirmation to the Court of Appeals for the Fifth Circuit.

Mr. SPECTER. In conclusion, Mr. President, I know my time is nearly up. I had a chance to talk at some length with Justice Priscilla Owen. She is an intelligent, articulate lawyer who has had very substantial experience on the Supreme Court of her State for some 10 years. She has been endorsed by 84 percent of the electorate of Texas. She has recognized the Supreme Court decision in Roe v. Wade and is bound to apply it and has recognized its principles and is not at all hostile to Roe v. Wade. In the 24 years and 4 months I have served on the Judiciary Committee, I have voted on many, many, many circuit judges. If Priscilla Owen had come before this Senate in any other context for consideration, except get-even time in response to the way President Clinton's nominees were treated, with some 70 rejected, in a spiraling context which started the last 2 years of President Reagan's administration, had she come here at any other time, she would have moved through this Senate on a voice vote or been unanimously confirmed. I suggest a careful reading of her record and a careful analysis, aside from the tumult and turmoil of the Senate today, supports her confirmation. I yield the floor.

Mr. SPECTER. Parliamentary inquiry: It was my understanding that I was to have 1 hour because a good bit of time has been consumed by dialog and questions earlier today.

Mr. SPECTER. Mr. President, that would be acceptable to me. I am the manager, in my capacity as chairman of the Judiciary Committee, on Priscilla Owen. We would accommodate to have an equal amount of time allotted to the Democrats. It may be, Mr. President, that I will not use the full hour.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the Chair for the recognition, but 15 minutes--if I could have the attention of the chairman of the committee, my colleague, Senator Inhofe? Fifteen minutes is insufficient. I had been seeking time since last week and had been assured by the floor staff that I could have 45 minutes starting at 3:10. I understand the importance of the highway bill. I am here to talk about the constitutional or nuclear option in my capacity as chairman of the Judiciary Committee. I know the highway bill is important, and I have been pressing to bring it up, but the matter I wanted to speak on is perhaps of greater importance. I had asked for 45 minutes and thought I might do it in 25, but it was reduced in a negotiating session with Senator Inhofe to 15, and I cannot do it in 15. So I will be back another time. I yield the floor.

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

Mr. SPECTER. Mr. President, may I proceed then?

Mr. SPECTER. Mr. President, I have sought recognition to urge my colleagues to explore ways to avoid a Senate vote on the nuclear, or constitutional, option. It is anticipated that we may vote this week or this month to reduce from 60 to 51 the number of votes to invoke cloture or cut off debate on judicial nominations. If the Senate roll is called on that vote, it will be one of the most important in the history of this institution. The fact is that all or almost all Senators want to avoid the crisis. I have repeatedly heard colleagues on both sides of the aisle say it is a matter of saving face. But as yet we have not found the formula to do so. I suggest the way to work through the current impasse is to proceed to bring to the floor circuit nominees, one by one, for up-or-down votes. There are at least five and perhaps as many as seven pending circuit nominees who could be confirmed or at least voted up or down. If the straitjacket of party loyalty were removed by the Democrats, even more might be confirmed. As a starting point, it is important to acknowledge that both sides, Democrats and Republicans, have been at fault. Both sides claim they are victims and that their party's nominees have been treated worse than the other's. Both sides cite endless statistics. I have heard so many numbers spun in so many different ways that even my head is spinning. I think even Benjamin Disraeli, the man who coined the phrase, ``there are lies, damned lies, and statistics,'' would be amazed at the creativity employed by both sides in contriving the numbers in this debate. The history of Senate practices has demonstrated that in the last 2 years of President Reagan's administration and through 4 years of the administration of President George Herbert Walker Bush, the Democrats slowed down the nomination process. When we Republicans won the 1994 elections and gained the Senate majority, we exacerbated the pattern of delay and blocking nominees. Over the course of President Clinton's presidency, the average number of days for the Senate to confirm judicial nominees increased for district nominees as well as for circuit nominees. That was followed by the filibuster of many qualified judicial nominees by the Democrats following the 2002 elections. In an unprecedented move, President Bush responded by making, for the first time in the Nation's history, two recess appointments of nominees who had been successfully filibustered by the Democrats. That impasse was then broken when President Bush agreed to refrain from further recess appointments. Against this background of bitter and angry recriminations, with each party serially trumping the other to get even, or to dominate, the Senate now faces dual threats--one called the filibuster and the other the constitutional or nuclear option, which rivals the United States- Union of Soviet Socialist Republic confrontation of mutually assured destruction. Both situations are accurately described by the acronym MAD. We Republicans are threatening to employ the option to require only a majority vote to end filibusters. The Democrats are threatening to retaliate by stopping the Senate agenda on all matters except national security and homeland defense. Each ascribes to the other the responsibility for blowing the place up. This gridlock occurs at a time when we expect a U.S. Supreme Court vacancy within the next few months. If the filibuster would leave an eight-person Court, we could expect many 4-to-4 votes, since the Court now often decides cases with a 5-to- 4 vote. A Supreme Court tie vote would render the Court dysfunctional, leaving in effect circuit court decisions with many splits among the circuits. So the rule of law would be suspended on many major issues. In moving in the Judiciary Committee to select nominees for floor action, in my capacity as Chairman I have first selected William Myers because two Democrats had voted in the 108th Congress not to filibuster him, and one candidate for the Senate in 2004, since elected, made a campaign statement that he would vote to end the Myers filibuster and to confirm him. Adding those three votes to 55 Republicans, we were within striking distance to reach 60 or more. I carefully examined Myers' record. Noting that he had opposition from some groups such as the Friends of the Earth and the Sierra Club, it was nonetheless my conclusion that his environmental record was satisfactory, or at least not a disqualifier, as detailed in my statement at the Judiciary Committee executive session on March 17 of this year. To be sure, critics could pick at the Myers record as they could at any Senator's record, but overall Myers was, in my opinion, worthy of confirmation. I then set out to solicit others' views on Myers, including ranchers, loggers, miners, and farmers. In those quarters I found a significant enthusiasm for Myers' confirmation, so I urged those groups to have their members contact Senators who might be swing votes. I then followed up with personal talks to many of those Senators and found several prospects to vote for cloture. Then the screws of party loyalty were applied and tightened and the prospects for obtaining the additional few votes to secure cloture vanished. I am confident if the party pressure had not been applied, the Myers filibuster would have ended and he would have been confirmed. That result could still be obtained if the straitjacket of party loyalty were removed on the Myers nomination. Informally, but authoritatively, I have been told the Democrats will not filibuster Thomas Griffith or Judge Terrence Boyle. Griffith is on the calendar now awaiting floor action, and Boyle is on the next agenda for committee action. Both could be confirmed by the end of this month. There are no objections to three nominees from the State of Michigan for the Sixth Circuit--Richard Griffin, David McKeague, and Susan Bakke Neilson--but their confirmations are being held up because of objections to a fourth nominee. I urge my Democratic colleagues to confirm the three uncontested Michigan Sixth Circuit nominees and fight out the remaining fourth vacancy and Michigan District Court vacancies on another day. The Michigan Senators do make a valid point on the need for consultation on the other Michigan vacancies, and that can be accommodated. In the exchange of offers and counteroffers between Senator Frist, the majority leader, and Senator Harry Reid, the Democratic leader, Democrats have made an offer to avoid a vote on the nuclear or constitutional option by confirming one of the four filibustered judges--Priscilla Owen, Janice Rogers Brown, William Pryor, or William Myers--with a choice to be selected by Republicans. An offer to confirm any one of those four nominees is in reality an explicit concession that each is qualified for the court, and they are being held hostage as pawns in a convoluted chess game which has spiraled out of control. If the Democrats believe each is qualified, a deal for confirmation for any one of them is repugnant to the basic democratic principle of individual fair and equitable treatment and further violates Senators' oath on the constitutional confirmation process. Such dealmaking would further confirm public cynicism about what goes on in Washington behind closed doors. Instead, let the Senators consider each of the four without the constraints of party line voting. Let us revert to the tried and tested method of evaluating each nominee individually. By memorandum dated April 7, I circulated an analysis of Texas Supreme Court Justice Priscilla Owen's records demonstrating she was not hostile to Roe v. Wade and that her decisions were based on solid judicial precedence. No one has challenged that legal analysis. Similarly, I distributed a memorandum containing an analysis of Judge William Pryor's record since he has been sitting on the Eleventh Circuit. It shows a pattern by Judge Pryor of concern to protect the rights of those often overlooked in the legal system. Similarly, no one has refuted that analysis. California Supreme Court Justice Janice Rogers Brown has been pilloried for her speeches. If political or judicial officials were rejected for provocative or extreme ideas and speeches, none of us would hold public office. The fact is, the harm to the Republic, at worst, by confirmation of all pending circuit court nominees, is infinitesimal compared to the harm to the Senate, whichever way the vote would turn out, on the nuclear or constitutional option. None of these circuit judges could make new law because all are bound and each one has agreed on the record to follow U.S. Supreme Court decisions. While it is frequently argued that Supreme Court decisions are in many cases final because the Supreme Court grants certiorari in so few cases, the circuit courts sit in panels of three so that no one of these nominees could unilaterally render an unjust decision since at least one other circuit judge on the panel must concur. While it would be naive to deny that ``quid pro quo'' and ``logrolling'' are not frequent congressional practices, those approaches are not the best way to formulate public policy or make governmental decisions. The Senate has a roadmap to avoid ``nuclear winter'' in a principled way. Five of the controversial judges can be brought up for up-or-down votes on this state of the record. The others are entitled to individualized treatment on the filibuster issue. It may be that the opponents of one or more of these judges may persuade a majority of Senators that confirmation should be rejected. A group of Republican moderates has, with some frequency, joined Democrats to defeat a party-line vote. The President has been explicit in seeking up-or-down votes as opposed to commitments on confirmations. The Senate has arrived at this confrontation by exacerbation as each side has ratcheted up the ante in delaying and denying confirmation to the other party's Presidential nominees. A policy of consultation/ conciliation could diffuse the situation. This has already been offered by the Democrats informally, signaling their intentions not to filibuster Griffith or Boyle, and by offering no objections to the three Michigan nominees. Likewise, it has been reported that Senator Reid has privately told Republicans he does not intend to block votes on any Supreme Court nominee except in extreme cases. A public statement of confirmation with an amplification on what constitutes ``extreme case'' could go a long way to diffusing the situation. Senator Schumer praised White House Counsel Gonzales during his confirmation hearings for times in which now-Attorney General Gonzales consulted with Senator Schumer on President Bush's judicial nominees affecting the State of New York. On April 11 of this year, a nominee pushed by Senator Schumer, Paul Crotty, was confirmed for the federal court in New York. Both New Jersey Senators, Senators Torricelli and Corzine, approved all five district court nominations for their State in the 107th Congress. And in that Congress, Florida's Democratic Senators, Bob Graham and Bill Nelson, appointed representatives to a commission which recommended federal judges to President Bush. President Bush recently nominated Minority Leader Harry Reid's pick for the District Court for the District of Nevada. So there have been some significant signs of consultation and conciliation by the Republicans on choices by Democratic Senators. I have reason to believe the President is considering consultation with the Michigan Senators on some federal judicial vacancies in their state and perhaps beyond. One good turn deserves another. If one side realistically and sincerely takes the high ground, there will be tremendous pressure on the other side to follow suit. So far, the offers by both sides have been public relations maneuvers to appear reasonable to avoid blame and place it elsewhere. Meanwhile, the far left and far right are urging each side to shun compromise. ``Pull the trigger,'' one side says. ``Filibuster forever,'' the other side retorts. Their approaches would lead to extreme judges at each end of the political spectrum as control of the Senate inevitably shifts from one party to another. The Senate today stands on the edge of an abyss. Institutions such as our Senate are immortal but not invulnerable. If we fail to step back from the abyss, we will descend into a dark protracted era of divided partisanship. But if we cease this aimless and endless game of political chicken, we could restore the Senate to its rightful place as the world's greatest deliberative body. That will require courage, courage from each Senator, courage to think and act with independence. Our immortal Senate is depending on that courage. Now the question remains as to whether we have it. Since the United States and the Union of Soviet Socialist Republics avoided the nuclear confrontation in the Cold War by concessions and confidence-building measures, why couldn't Senators do the same by crossing the aisle in the spirit of compromise? As a result of the time constraints, I have abbreviated the oral presentation of this statement. I ask unanimous consent the full text be printed at the conclusion of this statement, including my statement which I now make that the text is necessarily repeated to a substantial extent of what I have delivered orally, but it is included so that a full text may be printed in the Record.

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

Mr. SPECTER. Mr. President, I ask unanimous consent that I may proceed as in morning business for as much time as I may consume.

Mr. SPECTER

Mr. SPECTER. Mr. President, parliamentary inquiry: Are we now taking up the nominations of Robert J. Conrad and James C. Dever to be U.S. district judges in North Carolina?

Mr. SPECTER. I am glad to hear that because I couldn't hear the clerk report it. Mr. President, I am pleased to report that the Senate Judiciary Committee has recommended to the full Senate on reports filed that Robert J. Conrad, Jr., should become U.S. district court judge for the Western District of North Carolina. Mr. Conrad comes to this position with a very distinguished record. He is a former U.S. attorney for North Carolina. As assistant U.S. attorney, he made a name for himself in the prosecution of terrorism financing cases and campaign finance. Attorney General Ashcroft named Mr. Conrad to the Advisory Committee on Terrorism Financing, and Mr. Conrad testified before the Judiciary Committee on that subject. He was instrumental in prosecuting supporters of the Hezbollah terrorist cell in North Carolina in a very highly celebrated case. Prior to his appointment as U.S. attorney, he served as an assistant U.S. attorney for 12 years. I can tell you, with some experience in that kind of position, you really learn a lot as assistant prosecuting attorney. Sometimes I am asked what is the best job I ever had, Senator or district attorney, and I say assistant district attorney. That is where there is a great deal of experience. He has had bipartisan support from Democrats. The North Carolina attorney general, Roy Cooper, and former Attorney General Janet Reno praised him very highly. I would now like to make a comment about the other nominee, James C. Dever, III, who has been recommended by the Judiciary Committee to be the U.S. district court judge for the Eastern District of North Carolina. Mr. Dever is a U.S. magistrate judge in the Eastern District. He comes to this position as a highly respected attorney, a magistrate judge, recommended to be promoted to the district court by the bipartisan Merit Selection Panel of district court judges of the Eastern District. He has a very distinguished academic record. He served in the Air Force for 4 years, from 1988 to 1992. He was a member of the Air Force General Counsel's Honors Program. He served with great distinction. He has been an adjunct professor at the Norman Adrian Wiggins School of Law at Campbell University since 1997. He clerked for Judge Clifford Wallace on the Court of Appeals for the Ninth Circuit. He is rated in the highest category among lawyers by Martindale- Hubbell. I recommend that my colleagues support both of these meritorious nominees, and I yield the floor.

Mr. SPECTER. I yield the remainder of time on this side to the Senators from North Carolina, Senator Dole and Senator Burr, to be divided equally.

Mr. SPECTER

Mr. SPECTER. Mr. President, independence and dissent from the majority view has a great tradition in our country, further exemplified by independent, thoughtful U.S. Supreme Court Justices who formulated important legal principles which were later embraced as the law of the land. In a series of powerful and famous dissents, Justice Oliver Wendell Holmes and Justice Louis Brandeis, articulated a logic so compelling that it became the majority view within a generation. Their examples serve as a reminder of the importance of dissent and independence. As a law student, I was inspired by Justice Holmes's dissent in Abrams v. United States, when he wrote: But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be successfully carried out. That, at any rate, is the theory of our constitution. The theme of free-thought and independence, so artfully articulated by Justice Holmes, is also the foundation of ``Profiles in Courage.'' I think the essence of that theme was best summarized by then-Senator John Kennedy, when he said: Foreign ideology . . . fears free thought more than it fears hydrogen bombs. Free thought is the ultimate road to truth. Free thought is the energy that drives the political machine that leads to good public policy in our society. Free thought, and its companion, freedom of speech and assembly and press, are the core attributes of democracy that are today taking root around the world. ``Free trade in ideas'' cannot flourish when Senators are constrained to follow a political party's edict. When the merits of individual judicial nominees are debated and considered, without the counter- marjoritarian filibuster preventing resolution, only then do we achieve Holmes's ``best test of truth.'' Similarly, if the constitutional/ nuclear option is debated and considered without adherence to the party line, we will pursue the tested process to find the truth that is ``the only ground upon which [our] wishes can be successfully carried out.'' The value of independence, expressed in the dissenting opinions of Holmes and Brandeis, called public attention to values which later became the pillars of our democracy. Dissenting in Olmstead v. United States, Justice Brandeis said: The makers of our Constitution conferred, as against the Government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the [Constitution]. That view of the most basic ``right to be let alone'' later became the pillar of civil rights in our society in many contexts. It is the foundation of today's debate on the Patriot Act where representatives of the political right and the political left reference that value as the barometer of the balance of governmental power to provide for our Nation's security. The Holmes/Brandeis independent views, expressed in Supreme Court dissents, later became the law of the land on such important issues as freedom of speech, prohibiting child labor, limiting working hours, and peremptory challenges in criminal cases. These illustrations of Senatorial and judicial independence demonstrate the value of free thinking in deciding what is best for our Nation's long-range interests. Central to the definition of deliberation is thought. And we pride ourselves on being the world's greatest deliberative body. And thought requires independence--not response to party loyalty or any other form of dictation. The lessons of our best days as a nation should serve as a model today for Senators to vote their consciences on the confirmation of judges and on the constitutional/nuclear option. If we fail, then I fear this Senate will descend the staircase of political gamesmanship and division. But if we succeed, our Senate will regain its place as the world's preeminent deliberative body. I thank the Chair and thank my colleagues and yield the floor.

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

Mr. SPECTER. Mr. President, I thank the floor schedulers for reserving time for me this morning. I had hoped to be here at 11:15, but I have been chairing an executive business meeting of the Judiciary Committee where we voted on the nominations of Justice Owen and Justice Brown. Not unexpectedly, it went over the planned 11:15 conclusion, but I do appreciate the allocation of time. I asked for 45 minutes for a presentation, which I am about to make.

Mr. SPECTER. Mr. President, I seek recognition today to address the subject of Senators' independence and dissent. As members of political parties, we owe loyalty to the party that helped get us elected and which enables us to join together to achieve broad policy objectives. Historically, we have found our system of Government functions best with a two-party system. But as part of that historical perspective, we have simultaneously seen loyalty to our Nation take precedence to loyalty to party. At certain junctures of American history, the fate of our system of Government has rested on the ability of Members of this body to transcend party loyalty for the national interest. I believe the Senate currently faces such a challenge between party line voting on filibusters and potential voting on the constitutional, or so-called nuclear option. I have watched the issue on confirmation of Federal judges fester and become exacerbated as each party has racheted up the ante beginning with the last 2 years of President Reagan's administration when Democrats took control of the Senate and continuing to the present day. In 1987, upon gaining control of the Senate and the Judiciary Committee, on which I have served since being elected in 1980, the Democrats denied hearings to seven of President Reagan's circuit court nominees and denied floor votes to two additional circuit court nominees. As a result, the confirmation rate for Reagan's circuit nominees fell from 89 percent prior to the Democratic takeover to 65 percent afterwards. While the confirmation rate decreased, the length of time it took to confirm judges increased. From the Carter administration through the first 6 years of the Reagan administration, the length of the confirmation process for both district and circuit court seats consistently hovered at approximately 50 days. For President Reagan's final Congress, after the Democrats took control, the number doubled to an average of 120 days for these nominees to be confirmed. The pattern of delay and denial continued through 4 years of President George H.W. Bush's administration. President Bush's lower court nominees waited, on average, 100 days to be confirmed, which was about twice as long as had historically been the case. The Democrats also denied committee hearings for more nominees. President Carter had 10 nominees who did not receive hearings. For President Reagan, the number was 30. In the Bush Sr. administration, the number jumped to 58. When we Republicans won the 1994 election and gained the Senate majority, we exacerbated the pattern of delaying and blocking nominees. Over the course of President Clinton's presidency, the average number of days for the Senate to confirm judicial nominees increased even further to 192 days for district court nominees and 262 days for circuit court nominees. Through blue slips and holds, 70 of President Clinton's nominees were blocked. When it became clear that the Republican-controlled Senate would not allow the nominations to move forward, President Clinton withdrew 12 of those nominations and chose not to renominate 16. During that time I urged my Republican colleagues on the Judiciary Committee to confirm well-qualified Democratic nominees. For example, I broke ranks with many of my colleagues on the Republican side to speak and vote in favor of the confirmation of Marsha Berzon and Richard Paez, both to the Ninth Circuit Court of Appeals. While many of my Republican colleagues criticized me for voting for Berzon and Paez, I thoroughly reviewed their records and determined that both were qualified for the positions to which they had been nominated. While I did not agree with Ms. Berzon and Mr. Paez on every issue, I realized the importance of working toward solutions when the Senate is at an impasse on a nomination. After the 2002 elections with control of the Senate returning to Republicans, the Democrats resorted to the filibuster on ten circuit court nominations, which was the most extensive use of the tactic in the Nation's history. The filibusters started with Miguel Estrada, one of the most talented and competent appellate lawyers in the country. The Democrats followed with filibusters against nine other circuit court nominees. During the 108th Congress, there were 20 cloture motions on ten nominations. All 20 failed. To this unprecedented move, President Bush responded by making for the first time in the Nation's history two recess appointments of nominees who had been successfully filibustered by the Democrats. That impasse was broken when President Bush agreed to refrain from further recess appointments. Against this background of bitter and angry recriminations with each party serially trumping the other party to ``get even'' or, really, to dominate, the Senate now faces dual threats, one called the filibuster and the other the ``constitutional'' or ``nuclear'' option, which rival the US/USSR confrontation of mutual assured destruction. Both situations are accurately described by the acronym ``MAD'', which was used for the confrontation between our Nation and the Soviet Union. We Republicans are threatening to employ the ``constitutional'' or ``nuclear'' option to require only a majority vote to end filibusters. The Democrats are threatening to retaliate by stopping the Senate agenda on all matters except national security and homeland defense. Each ascribes to the other the responsibility for ``blowing the place up.'' The gridlock occurs at a time when we expect a U.S. Supreme Court vacancy within the next few months. If a filibuster would leave an 8- person court, we could expect many 4-to-4 votes since the Court now often decides cases with 5-to-4 votes. A Supreme Court tie vote would render the Court dysfunctional, leaving in effect the circuit court decision with many splits among the circuits, so the rule of law would be suspended on many major issues. On these critical issues with these cataclysmic consequences, I urge my colleagues on both sides of the aisle to study the issues and to vote their consciences independent of party dictation. I have not rendered a decision on how I would vote on the constitutional/nuclear option, but instead have been working to break the impasse by confirming or rejecting the previously filibustered nominees by up or down votes. As Chairman of the Judiciary Committee, I selected William Myers as the first of the filibustered judges to be reported out of Committee for Senate floor action. Two Democrats, Senator Joe Biden and Senator Ben Nelson, had voted in the 108th Congress to end the filibuster on Mr. Myers, and Senator Ken Salazar made a campaign promise to support an end to the Myers filibuster, although he has since equivocated on that commitment. Being only 2 or 3 votes shy of 60, 55 Republicans plus presumably two or three Democrats, I thought Myers had a realistic chance for confirmation. With any judicial nominee, or any Senators for that matter, opponents can pick at their record. On the totality of his record, as demonstrated at two hearings and the Judiciary Committee Executive session, Myers is qualified for confirmation. Beyond the issue of his own qualifications, his conservative credentials would lend some balance to the Ninth Circuit. The Democrats have signaled their intent not to filibuster Thomas Griffith or Judge Terrence Boyle which may help to diffuse the situation. In addition, intensive efforts are being made to clear three of President Bush's nominees for the 6th Circuit. If enough of the President's nominees can be confirmed, we may be able to deflate the controversy without a vote on the constitutional/nuclear option. That is what I am trying to do in my capacity as chairman of the Judiciary Committee. In due course, I will have more to say about the other pending Bush nominees; but for now, I only urge my colleagues to be independent and to examine the nominees' records on the merits without having their votes determined by party loyalty. The fact is that all, or almost all, Senators want to avoid the crisis. I have had many conversations with my Democrat colleagues about the filibuster of judicial nominees. Many of them have told me that they do not personally believe it is a good idea to filibuster President Bush's judicial nominees. They believe that this unprecedented use of the filibuster does damage to this institution and to the prerogatives of the President. Yet despite their concerns, they gave in to party loyalty and voted repeatedly to filibuster Federal judges in the last Congress. Likewise, there are many Republicans in this body who question the wisdom of the constitutional or nuclear option. They recognize that such a step would be a serious blow to the rights of the minority that have always distinguished this body from the House of Representatives. Knowing that the Senate is a body that depends upon collegiality and compromise to pass even the smallest resolution, they worry that the rule change will impair the ability of this institution to function. The importance of independence was noted on November 3, 1774 in a speech of historical importance to the Electors of Bristol by Edmund Burke, a Member of the British Parliament: ``. . . his (the legislators) unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.'' President John F. Kennedy, while a member of this body, wrote Profiles in Courage which cities the roles of courageous Senators who chose the national good over party loyalty. He summed it up on one of his famous quotations: ``Sometimes party loyalty asks too much.'' As President Kennedy wrote in the introduction to his book: Of course, both major parties today seek to serve the national interest. They would do so in order to obtain the broadest base of support, if for no nobler reason. But when party and officeholder differ as to how the national interest is to be served, we must place first the responsibility we owe not to our party or even to our constituents but to our individual consciences. Kennedy further noted, in words which ring as true today as they did decades ago: Today the challenge of political courage looms larger than ever before. For our everyday life is becoming so saturated with the tremendous power of mass communications that any unpopular or unorthodox course arouses a storm of protests such as John Quincy Adams--under attack in 1807--could never have envisioned. Our political life is becoming so expensive, so mechanized and so dominated by professional politicians and public relations men that the idealist who dreams of independent statesmanship is rudely awakened by the necessities of election and accomplishment. Continuing, Kennedy wrote: Of course, it would be much easier if we could all continue to think in traditional political patters--of liberalism and conservatism, as Republicans and Democrats, from the viewpoint of North and South, management and labor, business and consumer or some equally narrow framework. It would be more comfortable to continue to move and vote in platoons, joining whomever of our colleagues are equally enslaved by some current fashion, raging prejudice or popular movement. But today this nation cannot tolerate the luxury of such lazy political habits. Only the strength and progress and peaceful change that come from independent judgment and individual ideas--and even from the unorthodox, and the eccentric--can enable us to surpass that foreign ideology that fears free thought more than it fears hydrogen bombs. Beyond his stirring words, Kennedy provides us examples. John Quincy Adams' faced such a controversy when English ships seized American ships and conscripted American sailors who could not ``prove'' that they were not British subjects. Adams, a Federalist, was incensed. Ultimately, he voted with President Jefferson and the Republicans to enact an embargo against Great Britain. Yet most other Federalists, including those in Adams' home state of Massachusetts, preferred to make excuses for the British behavior and urge caution. Realizing the political suicide he was committing, Adams remarked to a friend, ``This measure will cost you and me our seats but private interest must not be put in opposition to public good.'' His prediction was right. He lost his seat. Kennedy recounts further in ``Profiles in Courage,'' how Senator Thomas Hart Benton, a Democrat from the slave-holding state of Missouri, elevated his love of the Union and his belief in manifest destiny over populist notions of secessionist Southern states. Though Benton owned slaves and was one of the few Senators to bring them with him to his Washington home, he refused to speak in favor of or against slavery in emergent states such as California and New Mexico, as they were added to the Union. Benton was known for his fiery rhetoric and independent streak throughout his thirty years in the Senate. In a prescient, foreboding statement, one of Benton's Missouri contemporaries remarked, ``[a]t an early period of [Benton's] existence, while reading Plutarch, he determined that if it should ever become necessary for the good of his country, he would sacrifice his own political existence.'' Senator Benton did exactly that. Courageous Senators and this institution as a whole resisted great political pressure to reject steps that would have threatened the separation of judicial powers and the independence of the President. These instances were the 1804-1805 impeachment and trial of Associate Justice Samuel Chase and the 1868 impeachment of President Andrew Johnson. Republicans under Thomas Jefferson sought to have Associate Justice Samuel Chase of the United States Supreme Court impeached in 1804. The outcome of Justice Chase's trial would largely determine whether the judiciary could remain independent or become a subordinate branch of government where justices looked to the legislature for patronage and job security. It was Justice Chase's penchant for politicking and expressing Federalist views from the bench that got him in trouble. Justice Chase was tried before the Senate. Aaron Burr, the controversial Vice President who was wanted in two states for his dueling homicide of Alexander Hamilton, presided at the hearing. During closing arguments, Justice Chase's counsel, Luther Martin, a Maryland delegate to the Constitutional Convention, predicted the outcome and noted the wisdom of the Founding Fathers in the constitutional provision giving the Senate the power to try and decide cases of impeachment. There were Senators in the Chase impeachment proceeding who transcended the pressures of their party, and bravely cast votes of ``not guilty'' for Justice Chase, thereby protecting the independence of the U.S. Judiciary. A similar great example of Senate independence occurred in the impeachment trial of President Andrew Johnson. President Johnson achieved the ire of the Congress, and the public generally, when he suspended the Secretary of War, Edwin Stanton, in violation of the 10- year Oath-of-Office Act which passed over the President's veto. That legislation prevented the President from removing, without the consent of the Senate, all new officeholders whose appointments require confirmation of that body. Public opinion ran very high against President Johnson. In ``Profiles in Courage,'' Senator Kennedy again described the unfolding drama: To their dismay, at a preliminary Republican caucus, six courageous Republicans indicated that the evidence produced so far was not in their opinion sufficient to convict Johnson . . . There were public outcries and party outcries against the deviation from their party loyalty. The party said: ``All must stand together!'' All but one Republican Senator announced their opinions. One who would not was Edmond G. Ross of Kansas. The Radicals were outraged that a Senator from such an anti-Johnson stronghold as Kansas could be doubtful. Indeed, despite public clamor and partisan outcry against him, Senator Ross was resolute in his unwillingness to signal his thoughts in advance of the ultimate vote on the Articles of Impeachment. As the impeachment trial droned on, he remained the only unknown voter among Republican Senators. Ross ultimately voted not guilty, in defiance of party loyalty. Reflecting on what colored his odd voting pattern, given his disdain for President Johnson, and his near mechanical party loyalty until that single moment, Ross said, in historic words: In a large sense, the independence of the executive office as a coordinate branch of government was on trial. . . . If . . . the President must step down . . . a disgraced man and a political outcast . . . upon insufficient proofs and from partisan considerations, the office of President would be degraded, cease to be a coordinate branch of the government, and ever after subordinated to the legislative will. It would practically have revolutionized our splendid political fabric into a partisan Congressional autocracy. . . . This government had never faced so insidious a danger . . . control by the worst element of American politics. Ross went on to say: If Andrew Johnson were acquitted by a nonpartisan vote . . . America would pass the danger point of partisan rule and that intolerance which so often characterizes the sway of great majorities and makes them dangerous. Mr. President, I know morning business has expired. But in the absence of any other Senator seeking recognition, I ask unanimous consent to proceed for an additional 10 minutes.

Mr. SPECTER

Mr. SPECTER. Mr. President, by way of very brief reply: There is no other competitor which has $75 million put up and which is in a position to accommodate these fast ships. This matter came up last year. It seems to me it is a decided matter. It is not quite a principle of res judicata. If there is to be an objection--perhaps there was an objection. I don't recall last year. There were many objections raised to expenditures in the appropriations bill. But if there was an occasion to defeat it, that was the time, not on what is essentially a technical amendment to accommodate the Department of the Navy so they know precisely what they are doing. I yield the floor.

Mr. SPECTER. Mr. President, I thank the Senator from Oklahoma for yielding to permit me to respond to the amendment which he has filed. When the Senator from Oklahoma commented earlier about the need to hold down the deficit, I am in complete agreement with what he had to say. The amendment pending does not have any expenditure at all. It is a clarification of a preexisting allocation which was in the Omnibus appropriations bill last year, and it was in a proper bill. It was not designated as emergency spending; it was an appropriations bill. This money is being allocated to develop the port facilities in Philadelphia to accommodate a very new kind of ship which will compete with air travel and which has very substantial military as well as commercial purposes. There is a long history to this particular item. Originally, there was an effort to have the construction undertaken partly in the United States, and this $40 million was to be a loan guarantee. Without going into a very elongated history, the manufacturers of the ship worked it out to have it done overseas. It is a loss to the United States. We had a meeting with members of the Armed Services Committee and the Secretary of the Navy. Secretary English tried to work it out and could not. Then the decision was made that the $40 million that already had been appropriated would be directed toward the port facility in Philadelphia to accommodate these ships. There is no other port facility that can take these ships. This is part of a larger expenditure where the Port Authority is putting up $75 million of its own. So there is nobody in the market here to say we have $75 million and we would like to have access to this $40 million that has already been allocated. In broader terms, I think it is fair to characterize this expenditure and reallocation. The Navy is prepared to do it, but they want to have the language so they are complying with the congressional direction. This is part of the effort to make up for the Philadelphia industrial base, what happened when the Philadelphia navy yard was closed some years ago. That yard was closed with fraudulent misrepresentations made by the Department of the Navy, not something I am saying today for the first time. I filed a lawsuit in the Federal court of Philadelphia because they had concealed opinions, letters, from two admirals who said the navy yard should be maintained but downsized. I argued the case personally in the district court and went to the Court of Appeals for the Third Circuit and lost it in the Supreme Court where the Supreme Court was faced with the alternative of disallowing some 300 base closures if they were to upset the Philadelphia navy yard closure. It was the basis of delegation of constitutional authority. It would be my hope that my colleagues in the Senate would allow this committee report to stand because it is not an expenditure, it does not burden the deficit. It is clarification so that the Secretary of the Navy can act in accordance with congressional wishes, and it has a military as well as a commercial purpose.

Mr. SPECTER. Mr. President, I am a little at a loss to hear the Senator from Arizona talking about reopening the Navy shipyard. Maybe it is a good idea but it is not my idea. It is not my idea today. This $40 million has already been appropriated. It was done in the Omnibus appropriations bill last year in regular order. So contrary to what the Senator from Arizona says, we are not talking about appropriating $40 million. What we are talking about is clarifying the purpose for which $40 million has been appropriated. While the Senator from Arizona may not think there is the realism of a high-speed military sealift, these fast ships can move military cargo as fast as they can be transported by air. I hate to repeat myself. I have already done it once. There is no outlay of money. This money has been appropriated. It is a direction to the Department of the Navy as to how it is being expended for a very important purpose. I yield the floor.

Mr. SPECTER

Mr. SPECTER. I thank the Chair. (The remarks of Mr. Specter and Mr. Leahy pertaining to the introduction of S. 852 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation which may be cited as the Fairness In Asbestos Injury Resolution Act of 2005. I do so on behalf of Senator Leahy, the ranking member of the Judiciary Committee, Senator Hatch, the former chairman of the committee, Senator Feinstein, Senator DeWine, Senator Baucus, Senator Voinovich and Senator Grassley. There are others in the wings waiting to cosponsor, but this is a very complex bill, ranging over 300 pages. Quite a number of my colleagues have told me they are supportive of the bill and are making the final check to determine cosponsorship. Several months ago, a discussion draft was circulated. Last week, after a great many refinements had been added, the current bill was circulated. There have been a couple of relatively minor changes which have been added to this bill, but it is essentially the same as the circulation bill which was submitted a week ago. I compliment my distinguished colleague, Senator Leahy, the ranking member, for his diligence, hard work and cooperation in structuring a bill with a great many moving parts, which he and I have been able to agree upon on the core principles. We have adopted a position that we will work jointly to retain these core provisions. We are open to suggestions and amendments and modifications which do not impact on these core provisions. But it is a very difficult matter to structure an asbestos bill which can pass the Senate. There are 55 Republicans. You need at least five Democrats. It has to be a balanced bill, and it is our submission that this is a balanced bill. A great deal of credit is due to senior Federal Judge Edward R. Becker, who until May 5, his 70th birthday, in the year 2003 was the chief judge of the Court of Appeals for the Third Circuit who wrote the opinion on the asbestos litigation which reached the Supreme Court of the United States. When the Judiciary Committee passed out of committee legislation on asbestos in July of 2003, the distinguished Presiding Officer was on the committee at that time and can attest to the 12-hour marathon session we had. We did so significantly along party lines to move the legislation along, recognizing it had many problems. At my request, Judge Becker then convened the so-called stakeholders in his chambers in Philadelphia for 2 days in August, the stakeholders being identified as the manufacturers, the AFL-CIO, the insurance industry, and the trial lawyers. To recite the power and diversity and difference of opinion of these groups is to suggest the complication of bringing the stakeholders together on a piece of complex legislation. Following those 2 days of meetings in Judge Becker's chambers, we have had some 36 sessions in my conference room here in the Hart Senate Office Building where Judge Becker presided and I assisted, and we worked out a great many of the issues to the satisfaction of the stakeholders. One of the core provisions of the bill is that there is a trust fund of $140 billion. It is always difficult on projections to be absolutely certain, but I believe there is a very high probability that this trust fund will be adequate to pay all of the claims. In very extensive testimony from Goldman Sachs on very carefully calculated projections, it was projected that the total cost of payments would be $118 billion. There is a considerable cushion between $118 billion and $140 billion. If for some unexpected reason the trust fund is insufficient, then those who have been injured by exposure to asbestos will be able to revert to jury trials. All of us are mindful of the very substantial factor when a claimant gives up a constitutional right to jury trial, but in a program structured largely along lines of workmen's compensation, it is our conclusion that it is a fair exchange. When you find that there are many people who are suffering deadly ailments from asbestos, mesothelioma and other deadly injuries, who are not being compensated, this is a way to compensate those individuals whose companies have gone bankrupt. Over 75 companies have gone bankrupt at a tremendous impact to the economy. This will relieve the companies of the onerous threat of bankruptcy--and they are taking additional companies with rapidity. On one development which candidly surprised me, last week, when we circulated the draft bill a week ago today, there was a 25-point bump in the stock market for asbestos companies. When we had a meeting later in the day and deferred production of the bill, the stock market went down to some extent. There is some consideration that the stock market is wiser even than Congress. Perhaps that would take a whole lot. But the reaction of the stock market is an indication of the importance of resolving this asbestos issue in order to give the economy a start. The hour is late. There are others who wish to seek recognition. The distinguished chairman of the Appropriations Committee is waiting through this nongermane part of his business, and the distinguished Democratic leader, I know, wants to seek recognition. I shall include the remainder of my statement in the Record and ask unanimous consent that it be printed.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the text of the bill be printed. Mr. President, I ask unanimous consent between the comments I have made, which have not been made from a text, and the text of my language which I am currently stating, be included, so that those who read the Congressional Record, if anyone does, will know the repetition in the prepared text is occasioned by the fact that the initial statement was made without reference to a text and there will necessarily be some repetition in the prepared text. I thank the Chair. I yield the floor.