Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I further ask unanimous consent that following the comments of the distinguished Senator from Utah I be recognized to speak briefly on the asbestos reform issue.

Mr. SPECTER. I thank my colleague for his kind comments. It is not inappropriate to note that on Monday afternoons, when we are not going to be taking up amendments but having opening statements, this is a little time on the Senate floor for banter and colloquy. Perhaps those who see C-SPAN might pause a moment or two longer to hear about Paul McCartney or the Patriots or about the Eagles. I was waiting in an elevator to go to my seat yesterday at around 5 o'clock, and an enormous group came and preempted about 100 fans, including this fan, who were waiting to go up so that Paul McCartney and a small group could be escorted in. He looked good for an oldtime Beatle.

Mr. SPECTER. Mr. President, I ask unanimous consent that at 5 p.m. today the Senate proceed to the consideration of a resolution regarding the Iraqi elections, which is at the desk; provided further, that there be 30 minutes for debate equally divided between the leaders or their designees, and that there be no amendments to the resolution or preamble. I further ask unanimous consent that at 5:30 p.m., the Senate proceed to a vote on the adoption of the resolution, and that following that vote, the preamble be agreed to, without intervening action or debate.

Mr. SPECTER. Mr. President, I was about to note that the hour of 3 o'clock has arrived. According to the previous order, the Senate is to take up the legislation on class action. This is legislation which has been crafted over a considerable period of time. It had some difficulty in achieving 60 votes for so-called cloture to cut off debate so that the Senate would take up the issue. It had been negotiated among a number of Senators in the past to get the requisite 60 votes, and it is represented that if the bill is passed in its current form in the Senate, it will be agreeable to the House of Representatives. When I choose my words carefully--that has been represented; you never know until it gets to the other body and see what they do--but that has been the expectation. When the issue was negotiated, there were a number of Senators who were satisfied with the structure of the bill. But all 100 Senators had not assented, agreed to it, including this Senator. We customarily are not all involved in negotiations as to the bill so that there is obviously latitude, when the matter comes before the Senate, for individual Senators to exercise their right to either offer amendments or to join in amendments which are offered. I support class action reform. I do so essentially to prevent judge shopping to States and even counties where courts and judges have a prejudicial predisposition on cases. Regrettably, the history has been that there are some States in the United States and even some counties where there is forum shopping, which means that lawyers will look to that particular State, that particular county to get an advantage. Diversity jurisdiction was established in the United States so that if there was litigation between citizens of different States, there was a certain amount in controversy, a jurisdictional amount--that amount has risen over the years; when I started the practice of law it was $3,000, now it is $75,000--the diversity jurisdiction of the Federal courts was established to see to it that if a litigant from California, illustratively, came to Pennsylvania and might be in the State court, that there would be perhaps some predisposition on the part of State court judges to look more favorably upon the local litigant. And the Federal courts were viewed as being more impartial. And that thread remains to this day. The legislation will leave in State courts, if the matter is predominantly a State court issue, where there are some two-thirds of the class in that State. If there is one-third or less, then the matter would go to the Federal court. And if it is between one-third and two- thirds, then it will be up to the discretion of the Federal judge on a series of standards which have been worked out through the leadership of Senator Feinstein of California. The bill came before the Judiciary Committee last Thursday. And it was my request of the Judiciary Committee members at that time that amendments not be offered because if you have controversial amendments offered in committee, they are customarily taken up again on the Senate floor. And the majority leader, Senator Frist, had asked me in my capacity as chairman of the committee to get the bill out last Thursday so that it could come to the floor today. As is well-known publicly, the class action legislation is a priority of the President's. It has been the intention of the majority leader to put the matter on the agenda at an early time--obviously, February 7 is an early date--and reserve sufficient time so that Senators have a full opportunity to offer amendments, and we can move through to completion of the bill. There is an amendment which has been discussed involving a proposal by the Senator from New Mexico, Mr. Bingaman, which would make certain that substantive rights which are now present in State courts would be retained after the enactment of this legislation. State courts use State law, and that is substantive law, in certifying class actions. And while I have stated my support for moving cases to the Federal court for the reasons I have already said, I have made a claim in the past and repeated it in the Judiciary Committee meeting last Thursday that in moving the cases to the Federal courts, I do not want to see changes in the substance of the rights of consumers or other class action litigants; that the objective which I think we ought to obtain is that the same substantive rights would remain; that this bill should not be a vehicle for modification of substantive rights, but this bill should provide the reform which will take the cases out of State courts, where there has been a record of prejudice to defendants, and take them to the Federal courts where, in the historical tradition of diversity litigation, to take them to the Federal courts where there is a better opportunity for an objective determination. When this bill was in committee in the past, I had a concern about certain of the provisions as to mass actions. The advocates of reform legislation were concerned that mass actions might be tried in the State courts altogether and provide a procedural context where there could not be a fair or appropriate adjudication. That is a highly complex subject, and it may be the matter of some concern as we move forward on this bill. It is my hope that we will not have so-called extraneous amendments, that we will focus on issues of class action related to this subject matter so that we can have a full debate on the subject. Senators may have an opportunity to offer their amendments and the determination of the Senate can be made as to what ought to be done on this very important litigation matter. I seek recognition today to open debate on the Class Action Fairness Act of 2005. This bill embodies a carefully balanced legislative solution that responds to abuses of the class action litigation device in our State courts. A key provision in the bill amends the Federal diversity jurisdiction statute to allow Federal courts to hear large multi-party, multi-State class action disputes. Existing law prevents national lawsuits from seeing the inside of a Federal courtroom by virtue of a glitch in the way that courts have interpreted the Federal diversity jurisdiction statute--a statute that the Congress passed back in 1789. Let me illustrate this fundamental problem by looking at two hypothetical cases. In the first case, you have a resident of, say, my State of Pennsylvania, slip and fall while filling up her car at a New Jersey gas station. The plaintiff sprains her ankle, misses work, and has medical bills. And her damages total $76,000. Under the existing diversity jurisdiction statute, if a plaintiff and a defendant hail from two different States, and if the amount in controversy exceeds $75,000, as in this example, then the case can be brought in Federal district court. Diversity jurisdiction for Federal court exists because the Framers of our Constitution wanted to encourage interstate commerce, and they wanted cases affecting interstate commerce to be adjudicated in our Federal courts. They knew that State judges can sometimes play favorites, and that if out of State defendants were unable to access the neutral forum of a Federal court, that could have a chilling effect on interstate commerce. But to understand how diversity jurisdiction has been misused, let's look at a second case in the class action context. Let's assume there are 1,000 plaintiffs who form a class. Let's also say they claim $100 million in damages against 300 different plumbing operations from around the country alleging that the defendants overcharged for plumbing services. And let's assume further that while these plaintiffs are spread across all 50 States, at least one of the 1 plaintiffs and one of the defendants reside in the same State. Although there is little doubt that this hypothetical lawsuit affects interstate commerce, especially given the number of parties spread throughout the country, this case would stay in State court. In 1806, the Supreme Court in Strawbridge v. Curtis interpreted the diversity jurisdiction statute to require what is known today as ``complete diversity''. In other words, for diversity jurisdiction to exist, all of the named plaintiffs must be citizens of different States from all of the defendants. While the complete diversity rule makes sense in the context of a relatively smaller lawsuit, it has been used to defeat Federal jurisdiction for large interstate class actions lawsuits. Throughout the years, the Judiciary Committee has received compelling evidence showing that certain plaintiffs' lawyers avoid Federal jurisdiction by simply naming a defendant in a complaint--such as a local pharmacy--to match the citizenship of a local plaintiff. This is done despite the fact that the real defendant and vast majority of plaintiffs hail from different States. It is this awkward result that the bill seeks to fix. Section 4 of S. 5 amends the current diversity statute to allow larger interstate class actions to be heard in Federal court by granting original jurisdiction in those class actions where any member of a proposed class is a citizen of a different state from any defendant. To be eligible for Federal jurisdiction, the class action must cover at least 100 plaintiffs and involve an aggregate amount in controversy of at least $5 million. While this provision represents the general rule, the bill contains certain exceptions that balance a state's interest in adjudicating local disputes. First, if two-thirds or more of the class members are from the primary defendant's home State, the lawsuit will remain in State court. Conversely, class actions filed in the home State of the primary defendant are subject to Federal jurisdiction if less than one- third of the proposed class members are citizens of that State. For cases brought in a defendant's home State in which between one-third and two-thirds of the class members are citizens of the forum State, a Federal district court judge is given discretion to exercise jurisdiction based on consideration of enumerated factors. This three- tiered test is known as the Home State Exception and represents a provision championed by Senator Feinstein during committee markup on the bill in the 108th Congress. Second, the bill contains the Local Controversy Exception--a provision that enables State courts to adjudicate truly local disputes involving principal injuries concentrated within the forum State. To fall within this exception, a class action must meet the following four criteria: 1, the class must be primarily local, meaning that two-thirds of the class members reside in the forum State; 2, the lawsuit must be brought against at least one real in-state defendant whose alleged conduct is central to the class claims and from whom the class seeks significant relief; 3, the principal injuries caused by the defendants conduct must have occurred within the forum state; and 4, no other similar class actions have been filed against any of the defendants in the preceding 3 years. This exception is intended to ensure that State courts can continue adjudicating truly local controversies involving defendants that are out-of-State corporations. I believe that modifying the current diversity jurisdiction statute is a sensible solution towards minimizing the class action abuses that we have witnessed throughout the years. Since the 105th Congress, this body has received evidence showing an extraordinary concentration of large interstate class action lawsuits in a handful of our State courts--certain county courts to be precise. The evidence further shows that these courts operate in a manner that deprives the rights of truly injured individual plaintiffs and defendants. In many cases, courts approve settlements that primarily benefit the class counsel, rather than the injured class members. Indeed, it has become all too common for certain State courts to approve proposed settlements where class members receive little or nothing of value, such as a meaningless coupon, while their attorneys receive substantial fees. In addition, multiple class action lawsuits asserting the same claims on behalf of the same plaintiffs are routinely filed in different State courts, thus creating judicial inefficiencies and encouraging collusive settlement behavior. Unfortunately, the injuries caused by these abuses are not confined to the parties who are named in the class action complaint. Rather, they extend to everyday consumers who unwittingly get dragged into these lawsuits as unnamed class members simply because they purchased a cell phone, bought a box of cereal, drove a car fitted with a certain brand of tires, or rented a video. What we are really talking about here is a system that impacts the vast majority of people who live in this country. The time has now come for its full consideration of class action reform by the Senate. The bill maintains strong bipartisan support in this Chamber and has brought many members from both sides of the aisle together. Indeed, just last week, the Judiciary Committee reported this bill favorably to the floor on a strong bipartisan vote of 13-5. In this regard, I would like to applaud my colleagues Senators Grassley, Hatch, Carper, and Kohl for their tireless efforts in building consensus throughout this body. S. 5 balances State and Federal interests in adjudicating disputes. This said, we must not lose sight of the fact that we be mindful of the substantive rights of individual plaintiffs caught in this balancing act--rights that guarantee a citizen access to jury trials for injuries sustained at the hands of wrongdoers. In the coming days, I anticipate amendments and thoughtful arguments from my colleagues relating to this issue. As such, I look forward to the debate and the Senate's full consideration of this important legislation. Philadelphia Eagles Mr. President, I note the presence of my distinguished colleague, the ranking member, the first Democrat ever elected in the State of Vermont.

Mr. SPECTER. Before yielding, let me make one other comment; that is my congratulations to the New England Patriots. As a long-standing Philadelphia Eagle fan, going back to the days of Franklin Field, as those in Philadelphia would understand, where the Eagles played in the confines of the ballpark of the University of Pennsylvania and the features were Jimmy Brown running for the Cleveland Browns, tackled most of the time by Chuck Bednarik of the Philadelphia Eagles, in the great championship game of 1960, which the Eagles won 17 to 13. The glory days were recounted again in the New York Times. You have to go back to 1960 to find glory days for Philadelphia football. But it is recounted how Chuck Bednarik tackled Jim Taylor, the great running back of the Green Bay Packers, and sat on him until time had expired, and the Eagles also won 17 to 13. Franklin Field seated a few over 60,000. It is now reputed that about 900,000 people were there; 900,000 people claim to have been there to have seen that game. I was there and am prepared to say so in open court and even take an affidavit on it. It was a thrilling game yesterday. I was in Jacksonville. It was reported by one of the local firms that there were some 60,000 Eagle fans in Jacksonville who did not have tickets. And when you moved through the city, the green was everywhere, with ``5'' for Donovan McNabb and 81 for Terrell Owens. Owens had a spectacular game, recovering from an ankle injury in a very short period of time, catching nine passes, six in the second half, taking one high over his shoulder and doing a 270-degree pirouette, a 30-yard gain. But to the credit of Coach Bill Belichick and Quarterback Tom Brady, New England is an outstanding team. We take great pride in what the Philadelphia Eagles have done and what Donovan McNabb has done. He had a high number of completions yesterday, but too many of them went to the Patriots, with some three interceptions--too many picked off. They coined the phrase in Brooklyn decades ago: Wait til next year. Wait til next year. But for this year, my congratulations to the New England Patriots. My congratulations also to a fighting group of Philadelphia Eagles. Wait until next year. I yield the floor.

Mr. SPECTER. If the Senator will yield, Senator Leahy and I are very concerned about the Record, having been former district attorneys. We are very concerned about the Record. We know that every word we say is going to be in black and white and be there for a long time, so we like it to be accurate.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the privilege of the floor be extended to the following staffers for the duration of S. 5: Harold Kim, Ryan Triplette, Hannibal Kemerer, Nathan Morris, Rita Lari Jocum, Kevin O'Scannlain, Brendan Dunn, and Scott Will, all from the Judiciary Committee.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. It would be my request to my colleagues that the matter be examined and studied because we are going to have to move forward on it one way or another, if it is to be taken up at an early date. I have set a very demanding schedule on the work of those who have been in the drafting process. So I ask consideration of my colleagues to consider this matter at an early opportunity. I thank the Chair. I suggest the absence of a quorum.

Mr. SPECTER. Mr. President, I have sought recognition to talk about asbestos reform, which is legislation that Senator Hatch had shepherded, along with Senator Leahy and Senator Frist, with substantial contributions by Senator Daschle, as well. Today, I am going to submit for the record a bill which is a discussion draft. I had intended to submit this legislation late last week, but I was asked by the majority leader to defer for a week so that further consideration could be given today by the majority leader and by members of the Judiciary Committee, including the Presiding Officer. We have reached a critical stage in the analysis and presentation of this legislation. It has had a long history. In July of 2003, more than 19 months ago, the Judiciary Committee passed out a bill, which all agreed had a great many problems, but it was passed out of committee largely along party lines. I voted for it, in order to move the bill along. As it is generally known, I then enlisted the aid of a senior Federal judge, Judge Edward R. Becker, who recently was the chief judge of the Court of Appeals for the Third Circuit, to undertake discussions, called mediation, and for 2 days in August of 2003, Judge Becker and I sat in his chambers with the so-called stakeholders representatives of the manufacturers, representatives of labor, AFL-CIO, representatives of the insurance industry, and representatives of the trial lawyers. That has been followed by some 39 separate meetings which have been convened in my conference room. In addition to numerous discussions Judge Becker has held with interested parties and which I have held with interested parties, we have come to a point in our work where we have found agreement among the parties on many items. We have found the stakeholders very close together on other items. As might be expected, it has been necessary to make judgments, which is the responsibility of this Senator and which I have done in collaboration with many other Senators, about what this bill represents, which in my considered judgment is an equitable bill. In early January, I circulated a discussion draft which had certain blanks until we had a hearing, which was held on January 11. I have also had an eye to trying to get the bill completed so that the majority leader could take it up at an early date. If that is not done, and the bill languishes into the season where we take up the appropriations bills, it simply will not be taken up. The asbestos issue is a crisis in the United States today. There is general agreement on that, with some 74 companies having gone into bankruptcy, and with thousands of asbestos victims suffering from mesothelioma, which is a deadly disease, and other deadly diseases and not collecting because their employers have gone bankrupt. We have found other very difficult issues on so-called ``mixed dust.'' We held a hearing last week, and I think we have worked through the scientific evidence on that proposal so that we are now in a position to know when someone comes forward with a claim, whether it is from asbestos, which has already been covered under the trust fund, or whether it is from silica, which would be a separate cause of action. The essential provisions of this legislation create a trust fund. In order to collect from the trust fund, victims--people exposed to asbestos--must establish certain levels of disability. There is a graduated scale as to compensation. The offset to the right of victims to give up their right to jury trial is the assurance that if this fund proves to be insufficient, people can go back to the jury trial system. There had been a great deal of discussion as to what was an adequate amount for the trust fund. The manufacturers and insurers made an offer of $140 billion. There were discussions last fall between Senator Frist and Senator Daschle where there was agreement to that proposal as to the total amount, although there had not been and has not been any agreement by the AFL- CIO or by labor. After a lot of consideration, it is my judgment that is an equitable figure. It is impossible to say what the total claims will be, what the total sum will be that is required because we do not know how many claims there will be. But if that figure should prove insufficient, then victims--claimants--have a right to go back to the jury trial system. There had been some disagreement as to how much money should be in at the start, with manufacturers and insurers wanting $40 billion in the first 5 years, and labor wanting $60 billion. After considerable inquiry, I was satisfied that the fund would have the ability to borrow at least $20 billion extra, so that the $60 billion total looked to by labor would be realized. Again, not to the satisfaction of all the parties, that is what the bill provides. The manufacturers and the insurers were looking for a 7\1/2\ year period where they would be assured there would be no other claims made. After extensive consideration, it was my judgment that there were certainly reasonable assurances that the fund would last for at least 7\1/2\ years, but that if the fund was to fall short, that ought to be a burden not met by the claimants, but they ought to have their right to reversion to a jury trial. There was a consideration as to what would happen on startup, with the manufacturers and insurers wanting a very lengthy period of time. The bill strikes a compromise, with 270 days to start up the bill on exigent claims--that is, very serious claims involving mesothelioma-- and 18 months on other claims. Labor and the trial lawyers felt there ought to be access to the courts continuously until the fund was started. The reality is, there are many delays, and a 270-day delay, while nobody likes any delays, is not an excessive delay under our litigation system in the United States. So that compromise and that adjustment was made. As to the pending cases, labor and the trial lawyers wanted an exclusion on mesothelioma in cases which had been filed. This bill provides that the requests of manufacturers and insurers had a very solid basis, that if they were going to put up a very substantial trust fund, that all of the cases ought to go into the trust fund, and that is the structure of the bill unless the case is to a jury or unless there has been a settlement with a particular individual. We have worked through the problems of the Federal Employees Liability Act, where we are very near a solution. I talked to Judge Becker earlier today, and he has talked to the parties there, and they are very close to resolving that issue. But in any event, there has been an agreement that if there is not a way to reconcile all of those issues, then there will be an arbitration clause in the bill which will solve that issue. There had been a consideration as to the issue on medical screening, with the manufacturers and the insurers objecting to medical screening. After considerable consideration, it was decided that medical screening ought to be provided in the bill, although it ought to be provided in a very tightened-up process so it would not bring into the litigation system people who did not have bona fide claims, that it would not increase the litigation inappropriately. Where you have substantial motivation for the trial lawyers to go out and find clients and bring claims, that is one thing. But if that is absent because of the reduction in attorneys' fees, then it seemed to me that these are people who do not ordinarily get physical examinations on an annual basis, as Senators might, and that it was fair to have medical screening, but it has been done on a tightened basis, and it was considered that was a fair approach here. When it came to what is called level seven, where we have smokers involved with reduced compensation, it was generally agreed we were not looking to have a smokers bill, so that if the claims exceeded 115 percent of the estimate by the CBO, the Congressional Budget Office, those cases would go back to the judicial system where the defendants are said to win most of those cases. We have come to agreement on many contentious issues. The administrative provisions have been agreed to with the Department of Labor. We have agreed to a provision that if you have a 40-year-old mesothelioma victim with dependent children, the administrator shall have authority to give him more and to give somebody, illustratively, in their eighties with no dependents less, as long as the fund remains neutral. We have come to agreement on judicial review. We have come to agreement on what courts will handle the cases if there was a reversion. There had been a request by the manufacturers and insurers to have all the cases go to Federal courts. Labor and the trial lawyers wanted the cases to go wherever the plaintiff chose to bring them. We have come to agreement that they would go to the Federal courts with the exception of the State courts where the individual lived as to venue or where the matter occurred. We have on a consensus basis agreed to tighten up the penalties on violation of environment, safety requirements, and health requirements. Labor wanted a provision as to transparency, and after a lot of analysis, we have worked that through. In the course of these extensive negotiations, there have been, I would estimate, some 150 to 250 legislative changes on modification. So we have come to a point where we now have this bill to be submitted for discussion purposes again. I had wanted to introduce this bill on a number of occasions. As I said, for the record, 2 or 3 weeks ago, Senator Leahy wanted additional time to study it. I have worked closely with Senator Feinstein and met with her and with her staff. As enumerated in the course of my written statements, some 27 Senators have participated in this process. It is very, very complicated. I do not think the Congress has ever tackled a more complicated legislative issue. In fact, I think the Congress has never tackled a legislative issue as complicated as this, certainly not during the 24 years-plus tenure of which I have had. As it has been commented about publicly, this issue brings together four of the most powerful if not the most powerful groups in Washington: the manufacturers; labor, with the AFL-CIO; the trial lawyers; and the insurance companies. Each has pressed very hard for advantage, which you would expect them to make their press. As I say, this bill, numbering some 291 pages, contains many agreements. On those issues where we could not structure and forge agreements, the judgments have been made. I take the responsibility for the judgments which have been made here. I submit that it is an equitable bill. I am not in concrete on any of these provisions. I am willing to discuss them. I am willing to talk about them further. But the basic approach of a trust fund is central to a resolution of this very difficult issue if we are to resolve it. If you press on one part of a balloon, the air goes to another part of the balloon, and while insurers and manufacturers may not like screening, labor does not like the limitation on the fund, and every time you turn, there is an issue where someone wants something more. I believe that this bill, the structure of this bill, although not necessarily the particulars, is the last best chance. I have taken over the responsibility as chair of the Judiciary Committee, and we have an agenda which is gigantic. In order to work in our first hearing on January 11, we had to work it around the hearings on White House Counsel Gonzales. And last week we spent all of the week on that issue. Last week the committee took up the issue of class action which is now on the floor. This Thursday we have hearings on bankruptcy because the majority leader wants to move forward. We have in the offing judicial nominations, and we have the prospect of a Supreme Court nominee. So the Judiciary Committee calendar is absolutely jammed. If this cannot provide the framework for a resolution of this issue, considering the 20 months of very laborious effort put in by Judge Becker and by some 27 Senators and 39 separate conferences, I do not know what would be fruitful for the Judiciary Committee for the Senate to do next. I have sought recognition to introduce a discussion draft of the Fairness in Asbestos Injury Resolution Act of 2005, FAIR Act, the successor to S. 1125 and S. 2290, the FAIR Acts of 2003 and 2004. My colleagues Senator Frist, Senator Hatch and Senator Leahy deserve enormous credit for the drafting of these acts and for the development of this legislation. There is a will in the Senate to enact legislation that should put an end to the ongoing rash of bankruptcies, growing monthly; diverting resources from those who are truly sick; endangering jobs and pensions; and creating the worst litigation crisis in the history of the American judicial system. The FAIR Act is still alive. The Senate plainly wants a more rational asbestos claims system, and I believe that this legislation offers a realistic prospect of accomplishing that result. This legislation provides substantial assurances of acceptable compensation to asbestos victims and substantial assurances to manufacturers and insurers to resolve, with finality, asbestos claims. For more than two decades, a solution to the asbestos crisis has eluded Congress and the courts. Seventy-four companies have gone bankrupt, thousands of individuals who have been exposed to asbestos have deadly diseases--mesothelioma and other such ailments--and are not being compensated. According to the RAND Institute for Civil Justice, ``about two-thirds of the claims are now filed by the unimpaired, while in the past they were filed only by the manifestly ill.'' According to RAND, the number of claims continues to rise, with over 600,000 claims filed already and 300,000 pending. The number of asbestos defendants also has risen sharply, from about 300 in the 1980s, to more than 8,400 today and most are users of the product, not its manufacturers. These companies span 85 percent of the U.S. economy and nearly every U.S. industry, and include automakers, shipbuilders, textile mills, retailers, insurers, shipbuilders, electric utilities and virtually any company involved in manufacturing or construction in the last thirty years. Asbestos leaves many victims in its wake. First and foremost, the sick and their families have suffered. But the flawed asbestos litigation system not only hurts the sick and their chance at receiving fair compensation, but also claims other victims. These include employees, retirees and shareholders of affected companies whose jobs, savings and retirement plans are also jeopardized by the tide of asbestos cases. With asbestos litigation affecting so many companies, this also impacts the overall economy, including jobs, pensions, stock prices, tax revenues and insurance costs. According to a 2002 study by Nobel laureate Joseph Stiglitz, asbestos bankruptcies have cost nearly 60,000 workers their jobs and $200 million in lost wages. Employees' retirement funds have shrunken by 25 percent. In July 2003, the Judiciary Committee knowingly voted out S. 1125, a bill with many problems, largely along party lines, in an effort to move the legislation. S. 1125 created the basic structure of the legislation, and made a huge stride in working out the medical criteria. However, the bill floundered on other issues. In August, at my request, Judge Edward R. Becker, a Federal judge for 33 years, convened in his chambers in Philadelphia for 2 days the so-called stakeholders--manufacturers, labor, AFL-CIO, insurers and trial lawyers--to determine if some common ground could be found. Until the preceding May, Judge Becker had been the chief judge of the Third Circuit Court of Appeals and wrote the opinion in the asbestos class action suit which was affirmed by the U.S. Supreme Court. From September 2003 through January 2005, there have been 37 stakeholder meetings in my conference room, with Judge Becker as a pro- bono mediator, usually attended by 25 to 40 representatives and sometimes over 75 present. Judge Becker and I have sought an equitable bill which took into account, to the maximum extent possible, the concerns of the stakeholders and to get their input on drafting of the bill. After analysis and deliberation, we found we could accommodate many of the competing interests. This process commenced with the blessing of Chairman Hatch and Ranking Member Leahy of the Judiciary Committee. This extended process allowed the stakeholders an extraordinary ``hearing'' process and really amounted to the longest ``mark-up'' in Senate history although not in the customary framework. We have had the cooperation of many Senators. Senators Hatch and Leahy have had representatives at all the meetings. The majority leader, Senator Hatch and Senator Leahy have addressed this ``working group'' at our meetings. Senator Hatch and Senator Leahy's representatives have been active participants at every meeting, as well as the members of the staffs of Senators Feinstein, Carper, Cornyn, DeWine, Ben Nelson, Baucus, Biden, Chambliss, Craig, Dodd, Durbin, Feingold, Graham, Grassley, Kennedy, Kohl, Kyl, Landrieu, Levin, Lincoln, Murray, Pryor, Schumer, Sessions, Snowe, Stabenow, and Voinovich. The concept of a trust fund is an outstanding idea. Senator Hatch deserves great credit for moving the legislation in the direction of a trust fund with a schedule of payments analogous to worker's compensation so the cases would not have to go through the litigation process. Under this proposal, the Federal Government would establish a national trust fund privately financed by asbestos defendant companies and insurers. No taxpayer money would be involved. Asbestos victims would simply submit their claims to the fund. Claimants would be fairly compensated if they meet medical criteria for certain illnesses and show past asbestos exposure. The Trust Fund would guarantee compensation for impaired victims. Through the series of meetings with Judge Becker, we have wrestled with and have been able to solve a number of very complex issues. The size of the trust fund was always a principal issue of dispute, starting at $108 billion. The manufacturers/insurers raised their offer to $140 billion. Last October, Majority Leader Frist and then- Democratic Leader Daschle agreed to $140 billion. When Senator Frist and Senator Daschle, in an adversarial context, agreed to the adequacy of the $140 billion figure, it is difficult to exceed it even though the AFL-CIO did not contemporaneously agree. It is not possible to say definitely what figure would be adequate because it depends on the uncertainty of how many claims will be filed. There is support for the adequacy of the $140 billion figure from reputable projections. But they are, admittedly, only projections. The real safety valve, if the fund is unable to pay claims, is for the injured to have the ability to go back to court if the system is not operational and able to pay exigent health claims within 9 months after enactment, and all other valid claims within 18 months of enactment. The claimants object to any hiatus between access to the courts and an operating system; but the reality is that court delays are customarily longer than the delay structured in this system. The defendants and insurers object saying it is too short a time frame, but they have the power to expedite the process by promptly paying their assessments. I am confident that there will be no problem in administering the system and processing the claims. Conversations have been held with the leaders of the Manville Trust and the RAND Institute study and they persuade me that the volume of claims can be efficiently administered by the fund administrator using a technique developed by the Manville Trust and other similar claims facilities that have processed asbestos claims for many years. The Manville Trust has processed as many as 150,000 claims per year. The number of exigent claims anticipated in the first 9 months of the fund is vastly smaller and even the total number of claims anticipated in the first 18 months is significantly less that which the Manville Trust has handled in a comparable period. Additionally, the bill provides the administrator with the option to contract out the exigent claims to a claims facility for expedited processing under the standards of the fund on a voluntary basis. The short time frame will prod the system to become operative at an early date. The bill sends the claims back to the fund as soon as it is certified operational with a credit for any payment of the scheduled amount. Similarly, the defendants seek a commitment that the legislation will bar return to the courts for at least 7\1/2\ years. It is hard to see how the substantial fund would be expended in a lesser period. Here again, the legislation gives the defendant substantial assurances that the system will last at least 7\1/2\ years. If it collapses, the claimants should not bear the burden, but should reclaim their constitutional right to a jury trial. The claimants sought $60 billion in startup contributions within 5 years and the defendants countered with a maximum of $40 billion. The fund's borrowing power should enable it to borrow at least the balance of $20 billion because of the defendants continuing substantial financial commitments. Here again, the bill meets the standard of substantial assurances, albeit not perfect certainty, that $60 billion will be in hand within the first 5 years. A key issue for the claimant has been that of workers' compensation subrogation. This issue is important because the value of an award to the claimant depends on whether the claimant may have to pay a substantial amount of it to others. While the precise picture is different from State to State, in general, workers' compensation laws give employers, and their insurance carriers, subrogation rights against third-party tortfeasors and a lien on the injured employee's recovery from a third-part tortfeasor. This is a big deal because workers' compensation covers the employee's medical costs. I closely examined and considered including a proposal that would have called for a so-called workers' compensation ``holiday.'' Such a proposal would have provided for a ``holiday'' from worker's compensation payments during the period of receipt of payments from trust fund except to the extent that the compensation would exceed them, with a waiver of past and future subrogation. However, as each State has different workers' compensation laws and I concluded that such a proposal may go beyond the practice in a number of States leaving some claimants with a significantly reduced award. Furthermore, while not undisputed like some other matters on this legislation, there is some significant basis in the assertion by claimants that the award values in the bill were designed with the concept in mind that there would be no liens or rights of subrogation against the claimants based on workers' compensation awards and health insurance payments. Therefore, in the final analysis, I have determined that to be fair to victims, claimants should be allowed to retain and receive the full value of both their fund awards and workers' compensation payments. It is important that the bill must extinguish any liens or rights of subrogation that other parties might otherwise assert against the claimants based on workers' compensation awards and health insurance payments. Another key issue for the claimants has been the legislation's treatment of asbestos disease claims under the Federal Employers' Liability Act, FELA, the workers' compensation system for rail workers. Earlier versions of the bill would have preempted FELA claims for asbestos-related diseases, limiting victim's recovery to compensation under a national asbestos trust fund. Rail labor asserts that such an approach is unfair to rail workers, since for all other workers, the bill maintains workers' compensation rights. Alternative approaches to dealing with the FELA issue have been proposed, including providing for a supplemental payment, in addition to awards under the bill, to provide compensation to rail workers for work-related asbestos diseases. The AFL-CIO's affiliates who represent workers in the rail industry have been engaged in discussions with industry on this issue, and will continue to work to see if a fair resolution can be reached. I have included in the bill language that would call for binding arbitration between the parties if they do not arrive at a solution 30 days post enactment. In these marathon discussions, plus the January hearing, I understand the deep concerns expressed by the stakeholder representatives on more concessions for their clients. On the state of the 20 year record, this choice is not between this bill and one which would give their clients more concessions. The choice is between this bill and the continuation of the present chaotic system which leaves uncompensated thousands of victims suffering from deadly diseases and litigation driving more companies into bankruptcy. We considered at length the manufacturers/insurers objections to medical screening, but concluded such a provision was necessary as an offset to the reduced role of claimant's attorney. With the previous potential of a substantial contingent fee, claimants' attorneys identified those damaged by exposure to asbestos. Absent that motivation, it is reasonable to have routine examinations for people who would not be expected to go for such checkups on their own; so as a matter of basic fairness, such screening is provided. By establishing a program with rigorous standards, as we have done in this bill, unmeritorious claims can be avoided with the fair determination of those entitled to compensation under the statutory standard. The legislation has closely examined the issues of so-called ``leakage'' in the fund and has provided all asbestos claims pending on the date of enactment, except for non-consolidated cases actually on trial, and except cases subject to a verdict or final order or final judgment, will be brought into the asbestos trust fund. Furthermore, only written settlement agreements, executed prior to date of enactment, between a defendant and a specifically identifiable plaintiff will be preserved outside of the fund; the settlement agreement must contain an express obligation by the settling defendant to make a future monetary payment to the individual plaintiff, but gives the plaintiff 60 days to fulfill all conditions of the settlement agreement. I have also included in the legislation language which is designed to ensure prompt judicial review of a variety of regulatory actions and to ensure that any constitutional uncertainties with regard to the legislation are resolved as quickly as possible. Specifically, it provides that any action challenging the constitutionality of any provision of the act must be brought in the United States District Court for the District of Columbia. The bill also authorizes direct appeal to the Supreme Court on an expedited basis. An action under this section is to be filed within 60 days after the date of enactment or 60 days after the final action of the administrator or the commission giving rise to the action, whichever is later. The district court and Supreme Court are required to expedite to the greatest possible extent the disposition of the action and appeal. Claimants also expressed the need for assurances that the manufacturers payment into the fund. Therefore, the legislation I am introducing also requires enhanced ``transparency'' of the payments by the defendants and insurers into the fund. The proposal provides that 20 days after the end of such 60-day period, the administrator shall publish in the Federal Register a list of such submissions, including the name of such persons or ultimate parents and the likely tier to which such persons or affiliated groups may be assigned. After publication of such list, any person may submit to the administrator information on the identity of any other person that may have obligations under the fund. In addition, there are enhanced notice and disclosure requirements included in the draft. It also provides that within 60 days after the date of enactment, any person who, acting in good faith, has knowledge that such person or such person's affiliated group would result in placement in the top tiers, shall submit to the administrator, 1, either the name of such person or such person's ultimate parent; and, 2, the likely tier to which such person or affiliated group may be assigned under this act. As I have mentioned previously, this legislation deals with a number of very complex issues, one of them being that of ``mixed-dust.'' I held a hearing in the Judiciary Committee in this issue on Feb. 2, 2005. The manufacturers fear that many asbestos claims will be ``repackaged'' as silica claims in the tort system. Evidence deduced at the hearing reflects that this has been happening in a large number of jurisdictions. If a claim is due to asbestos exposure at all, the program should be the exclusive means of compensation. The stakeholders agree that this is an asbestos bill, designed to dispose of all asbestos claims but that workers with genuine silica exposure disease ought to be able to pursue their claims in the tort system. The problem is that with those claims where the point of demarcation is unclear. Silica/asbestos defendants are worried that they will find themselves in court with the burden of proving that the plaintiff's injury is due to asbestos rather than silica. This legislation makes clear that pure silica claims are not preempted, but claims involving asbestos disease are preempted. A claimant must establish by a preponderance of evidence that their functional impairment was caused by exposure to silica, and asbestos exposure was not a significant contributing factor. Although this does impose the burden on the claimant, this is no different than the burden the plaintiff or any party advancing a position has in producing medical evidence in any case that the physician will state that a disease was caused by some condition or exposure or that it was not caused by some condition or exposure. Another very complicated issue I have addressed in my legislation, at the request of the claimants, is that of providing for award adjustments for exceptional mesothelioma cases based on age and the number of dependents of the claimant. For example, a mesothelioma victim who is 40 years old with two kids will be able to get an upwards adjustment in his award amount as compared to a 80-year-old mesothelioma victim with no dependents. The impact of such adjustments to the fund will remain revenue-neutral. What I have introduced is a complicated bill, but one that is both integrated and comprehensive and reflective of a remarkable will to enact legislation. If this bill is rejected, I do not see the agenda of this Senate Judiciary Committee revisiting the issue because of other business and the futility in doing so. I cannot conceive of more strenuous effort being directed to this subject that has been done in the past 2 years. This is the last best chance. I remain confident that we can forge and enact a bill that is fair to the claimants and to business and that will put an end once and for all to this nightmare chapter in American legal, economic and social history. If we can summon the legislative will in a bipartisan spirit, it can be done. I ask unanimous consent to print in the Record a 291-page discussion draft.

Mr. SPECTER

Mr. SPECTER. On behalf of the leader, I ask consent that there be 60 minutes remaining for debate on the pending nomination, with the time divided as follows: 15 minutes to the distinguished ranking member, Senator Leahy; I, as chairman, the next 15 minutes; then the Democratic leader, Senator Reid, 15 minutes; and the majority leader, Senator Frist, the final 15 minutes. Finally, I ask consent that after the use or yielding back of time that the Senate proceed to a vote on the nominee as the previous order provides.

Mr. SPECTER. Mr. President, it has been a long month for Judge Gonzales, starting with his hearing on January 6, through today. It has been a long month for the Senate, as we have considered his testimony, heard him, deliberated about him, and now 3 days of argument on the Senate floor about Judge Gonzales. What is striking to me is how little there has been about the 49 years of this man's life contrasted with a few meetings where the contents have been grossly distorted. This is a man who has an extraordinary record, but it has not been the subject of analysis or discussion today as to whether he has the qualifications to be Attorney General of the United States. What are those qualifications? A man of intellectual achievement, a graduate of Rice University, a graduate of Harvard Law School, professional competence demonstrated by practicing law, a distinguished career as a state supreme court justice in Texas, his work for Governor George W. Bush in Texas, his work for 4 years as White House Counsel where he has come into contact with so many Members of the Senate, and quite a few of those Members have spoken out about him before the misrepresentations of what happened in a few meetings, which have led people to inappropriately blame Judge Gonzales for what happened at Abu Ghraib or Guantanamo. But what have Members of the Senate had to say about Judge Gonzales on their work with him? Senator Kohl said: We have had an opportunity to work together on several different issues over the years, and I have come to respect you also. And I believe if you are confirmed that you will do a good job as Attorney General of the United States. Senator Durbin: I respect him and his life story very much. Senator Leahy: . . . I like and respect Judge Gonzales. Senator Biden: He has overcome great adversity in his life, and I believe he is an intelligent, decent, and honorable man. Senator Schumer, who has had very extensive contact with Judge Gonzales because the State of New York has a great many Federal judges, had this to say: I like Judge Gonzales. I respect him. I think he is a gentleman and I think he is a genuinely good man. We have worked very well together, especially when it comes to filling the vacancies on New York's Federal bench. He has been straightforward with me and he has been open to compromise. Our interactions haven't just been cordial; they have been pleasant. I have enjoyed the give-and-take we have engaged in. I was inclined to support Judge Gonzales. I believed and I stated publicly early on that Judge Gonzales was a less polarizing figure than Senator Ashcroft had been. I still have great respect for Judge Gonzales. He has the kind of Horatio Alger story that makes us all proud to be Americans. It is an amazing country when a man can rise from such humble beginnings to be nominated for Attorney General. And what Senator Schumer was referring to was the fact that there were seven siblings, a mother and father, two-room accommodations, no hot water, referring to his Horatio Alger story, up from the bootstraps without even boots. When Senator Lieberman took the floor this afternoon, there was for the first time, except for Senator Salazar, at least as I recollect, comments from the other side of the aisle about the man's character and about the man's background. Well, what happened? There was a memorandum which has been quoted against Judge Gonzales repeatedly where, referring to the Geneva Convention, the words ``quaint'' and ``obsolete'' were used. But what was the context? This is what he said: This new paradigm--that is, after 9/11--renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that the captured enemy be afforded such things as commissary privileges, scrip--that is, advances of monthly pay--athletic uniforms, and scientific instruments. Well, nobody is going to say that al-Qaida or the Taliban would have any commissary privileges--not an issue. Whether there would be advances of monthly pay--not an issue. Athletic uniforms--not an issue. Scientific instruments--not an issue. So there is simply a recognition that it was quaint, that it didn't apply to the situation at hand. The charges against Judge Gonzales have been that he was the architect of what happened at Abu Ghraib and Guantanamo, which is a stretch beyond any conceivable justification from the record in this case. What did Judge Gonzales do? Judge Gonzales asked that the Department of Justice prepare a legal memorandum on the law. That is the responsibility of the Department of Justice. Then he participated in several meetings, and he was candid about what happened in those meetings, as best he or anybody could recall on meetings that happened several years ago. And then, understandably, he said it was a matter for the Department of Defense and the Central Intelligence Agency, where they had the expert questioners, to decide what questions to propound to the detainees. And from that participation, he has been charged with monstrous offenses. The so-called Bybee memorandum of August 2002 has been denounced. It was denounced by Judge Gonzales. I asked him the specific question about the assertion in the Department of Justice memorandum that the President had as much authority on questioning detainees as he had on battlefield decisions--an absolutely preposterous assertion--and Judge Gonzales said, no, he disagreed with that. There had been a comment that he respected the authority of the Department of Justice to render a legal opinion because of the continuing concern not only from this President, but prior Presidents, that if the White House tried to tell the Justice Department what the words were, or to control it, the White House could be guilty of politicization. Judge Gonzales understandably steered away from that. In terms of being deferential to the role of the Department of Justice, but not to the August 2002 memorandum, which he denounced and which he said was incorrect when it asserted great powers to the President, with the suggestion that the President have the power to ignore the law, or which suggested inferentially, very tenuously about the President having the authority, were explicit on granting immunity, which, of course, the President doesn't have the authority to do. Mr. President, how much time remains of my 15 minutes?

Mr. SPECTER. I thank the Chair. The essence of Judge Gonzales's role was summarized by one of his statements, consistent with his entire testimony. It is this: Shortly after September 11, 2001, until the present, the administration has been involved in conducting the war on terror by gathering as much information from terrorists as we possibly can within the bounds of the law. During that time, I have participated in several meetings at which the possible use of methods of questioning were discussed. These meetings may have included, from time to time, representatives from the National Security Council, the Department of State, the Department of Justice, the Department of Defense, Central Intelligence Agency, and others. In the meetings I attended, agencies' representatives raised concerns that certain terrorists had information that might save American lives. The participants shared the desire to explore whether there existed methods of questioning these terrorists that might elicit that information. It was always very clear that we would implement such methods only within the bounds of the law. As counsel to the President, my constant interest is and was on the last factor, enduring compliance with the law. There you have Judge Gonzales's role. He listened to the Department of Justice, which had the responsibility to interpret the law on what the appropriate conduct was. When it was off the wall or over the top, he disagreed with it. It is up to the Department of Defense and CIA-- the experts on questioning--to make decisions on those matters. Judge Gonzales was explicit in his opening statement. He didn't wait for anybody to ask him any questions about the scope and role of the Attorney General--that it was much broader than being Counsel to the President. On the totality of this record, I suggest to my colleagues that Judge Gonzales is qualified to be Attorney General of the United States. When you look at his life, some 49 years, and at the values which he demonstrated in many lines, values he demonstrated as a young man facing great adversity and achieving a college education at Rice--that is not easy--going to the Harvard Law School--that is not easy-- practicing law with a prestigious firm and distinguishing himself; taking on a responsibility for the Governor of Texas; being a justice on the State Supreme Court; and his positions as White House counsel were very progressive and independent. He took a stand in opposition to the White House, favoring affirmative action on the University of Michigan lawsuit, a very controversial matter. It is not easy for White House Counsel to stand up in the midst of a great deal of polarized contentions and be in favor of affirmative action. When the Texas statute came up--the so-called bypass--on what a young woman had to do to obtain an abortion with respect to satisfying the requirements for an order of the court allowing a bypass, Judge Gonzales took a position which was sharply criticized by those on the far right of the party, showing independence, showing values, showing judgment. You can contrast that with a few meetings where Judge Gonzales played an appropriate role, except to the extent that there have been representations and attenuations and inferences that are far beyond any of the testimony or anything that has been said. So if you take the scanty fathoms, scanty ideas, scanty speculation-- I guess that is the best word--from those meetings, it is totally unsubstantiated by the record; and everything on the record shows Judge Gonzales is worthy of being confirmed as Attorney General of the United States. I thank the Chair and yield the floor. I am sure the leaders will appear shortly to take the remainder of their time. In the absence of a Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank my colleagues for the affirmative vote in support of Judge Gonzales to be the next Attorney General of the United States. The final vote of 60 to 36 reflects a degree of bipartisanship. Judge Gonzales takes on this heavy mantle of responsibility as Attorney General of the United States being very well qualified to do so. He has worked as White House Counsel, as we all know, for 4 years, and has worked closely with many, if not most, of the Senators who have had judicial nominations which have come to him. I put into the Record many laudatory, complimentary statements which were made about Judge Gonzales for his work as White House Counsel. Regrettably, the incidents at Abu Ghraib and Guantanamo--particularly at Abu Ghraib--are a major blemish. At Guantanamo the problem is still under investigation. Those incidents, realistically viewed, were not the responsibility of Judge Gonzales. His role was a limited one. It is up to the Department of Justice to provide legal opinions as to the scope of appropriate conduct, up to the experts in the Department of Defense, the CIA to formulate the questions. But 60 votes is good, sound support for Judge Gonzales. I am pleased to see his confirmation has been approved by the Senate. We have consented to the President's nomination. In my capacity as chairman of the Judiciary Committee, I look forward to working with Attorney General Gonzales. Mr. President, I yield the floor.

Mr. SPECTER

Mr. SPECTER. With that modification, the unanimous consent request is pursued.

Mr. SPECTER. Mr. President, I ask unanimous consent that the following individuals be granted privileges of the floor for the duration of the 109th Congress: Grace Chung Becker, a detailee from the U.S. Sentencing Commission; Bruce Artim, a detailee from the National Institute of Health; and Reed O'Connor, a detailee from the Department of Justice.

Mr. SPECTER. Mr. President, I ask unanimous consent that Michael O'Neill, chief counsel of the Senate Judiciary Committee; Brett Tolman, a detailee from the Department of Justice; and Nicholas Rossi, a detailee from the Federal Bureau of Investigation, be granted floor privileges for the first session of the 109th Congress.

Mr. SPECTER

Mr. SPECTER. I wanted to put this on the record so the people who are next up would know it, and would be in a position to come to the Chamber in a timely fashion.

Mr. SPECTER. Mr. President, reserving the right to object, and I do not intend to object, I believe implicit in what the Senator from Illinois said is that there be an alternating of speakers, and I will present a list of Republican speakers to integrate with what Senator Durbin has stated.

Mr. SPECTER. Mr. President, today we have heard quite a ring of castigation against Judge Gonzales, virtually all of it misdirected, virtually all of it factually incorrect. We have heard the Senator from Massachusetts castigate the Bybee memorandum in torrid prose, claiming the Bybee memorandum was exactly wrong. He asserted that the Bybee memorandum did not have a sensible interpretation, or a legal interpretation of torture. He further claimed that the Bybee memorandum vastly overstated executive authority, and that it said the President had as much authority on the question of detainees as he did on battlefield control. These claims are palpably erroneous. The Senator from Massachusetts then cited the Goldsmith memo, and said it certainly was a smoking gun. But Judge Gonzales did not hold that gun, did not have anything to do with that gun. The Senator from Massachusetts said Judge Gonzales was sent a copy of that memorandum. During the course of Judge Gonzales's questioning by the Senator from Massachusetts, the Senator from Massachusetts never once, to my recollection, ever viewed the transcript, or said anything about the Goldsmith memorandum. So what we have is the castigation of Judge Gonzales for matters which were totally beyond his control. Judge Gonzales was the lawyer for the President as White House Counsel. As such, he sat in on a series of meetings. Those meetings were convened to find out what was the law on how detainees could be appropriately questioned to avoid any implication of the torture statute. When there is a determination of what the law is, that is up to the Department of Justice. And that is what Judge Gonzales testified to. And while there appears to be instances in which the Bybee memorandum was off-base, Judge Gonzales was not involved with the drafting of that memorandum. Then when the question comes up as to what questions the detainees were going to be asked, that is a matter for the experts. As Judge Gonzales responded to questions from the Senator from Massachusetts at the hearing, it is up to the CIA and up to the Department of Defense. It is not up to the Counsel for the President. When the Senator from Massachusetts castigates Judge Gonzales for not being able to remember what happened years ago, or what conversations may have taken place, he is being unfairly critical. The Department of Justice was responsible to provide the memo. Whether it was for the CIA or the Department of Defense is something that was not recollected, but who can recollect everything that happened several years ago? When the Senator from Massachusetts castigates Judge Gonzales for not conducting a search and for not knowing certain information, he is mistaken. A search was conducted. When the Senator from Massachusetts raised that issue in the executive session, I then asked the White House to conduct a search. That search was conducted, and immediately a memorandum was circulated disclosing what that search was. When the Senator from Massachusetts, last night--I got it this morning--asked for some more information from the White House, I again forwarded the request and got a reply today. It was not a reply that the Senator from Massachusetts liked, but there has been nothing about this entire proceeding that the Senator from Massachusetts has agreed with. And that is his prerogative. He does not have to agree with it. He does not have to vote for Judge Gonzales. And he can express his views on oversight responsibilities. But there are others of us on this committee who have been here a while who understand our oversight responsibility and who have made a very strong effort to provide the information which the Senator from Massachusetts has asked for. Judge Gonzales was available to more than a dozen Members of the Senate, available to all members of the Judiciary Committee--not that all asked to see him--and provided more than 250 pages of voluminous answers. So extensive were the answers that they were complimented, in effect, by the New York Times, saying it was the most comprehensive statement made as to what was the policy of the U.S. Government on these very important subjects. But aside from the rhetoric, what are the facts? What does the testimony show? What do the documents show? Senator Feinstein says she still does not understand what Judge Gonzales thinks about torture. Well, what Judge Gonzales thinks about torture he has said on quite a number of occasions. Let me remind all Senators who have to vote on this matter what Judge Gonzales said about torture. No. 1: [T]he President has said we're not going to engage in torture. No. 2: The President gave a directive to the military that despite the fact that Geneva may not apply with respect to the conflict and the war on terrorism, it is that everyone should be treated humanely. No. 3, this is in the record, according to his testimony: [T]he position of the President on torture is very, very clear, and there is a clear record of this. He does not believe in torture, condone torture, has never ordered torture, and anyone engaged in conduct that constitutes torture is going to be held accountable. No. 4: All I know is that the President has said we are not going to [have] torture under any circumstances. . . . the United States has never had a policy of torture. No. 5, further testimony: Our policy is we do not engage in torture. No. 6: It is not the policy of the administration to tolerate torture or inhumane conduct toward any person that the United States is detaining. No. 7, more testimony: The President is not going to order torture. No. 8: [T]his President is not going to order torture. We don't condone it. No. 9: Now, let me emphasize, and I can't emphasize this strongly enough, there are certain basic values that this country stands for and this President certainly believes in, and those values are reflected in the directives that he has issued regarding the treatment of al Qaeda detainees, and those who do not meet those standards are going to be held accountable. This is all testimony or responses in the Record: In addition, there are of course other legal restrictions. For example, the convention against torture, that would be applicable, Army regulations that would be applicable. All those exist to conscript the type of conduct that our military can engage in with respect to detainees. And so we want to of course meet basic standards of conduct with respect to treatment of al Qaeda[.] No. 10, again, testimony: [A]s I have said repeatedly today, this administration does not engage in torture and will not condone torture. And so what we are really discussing is a hypothetical situation. . . . No. 11: [O]ther than the directive by the President that we're not going to engage in torture and that we're going to abide by our legal obligations, I'm not aware of any other directive by the President. No. 12: Judge Gonzales also reiterated his own opposition to torture in numerous responses to written questions submitted by Judiciary Committee Senators following the hearing. No. 13: The President has repeatedly stated that his Administration does not authorize or condone torture under any circumstances by U.S. personnel. I, of course, fully support the President's policy. . . . No. 14: I do denounce torture, and if confirmed as Attorney General, I will prosecute those who engage in torture. No. 15: The President has made clear that the United States remains committed to adhering to its obligations under the Geneva Conventions and the Convention Against Torture and has unequivocally condemned torture. I have repeatedly emphasized the President's statement of these commitments on behalf of the United States, and will continue to do so if confirmed as Attorney General. As chairman of the committee, I had the first round of questions, and the first question I asked Judge Gonzales was: What is your position on torture? And his words were to the effect: I condemn torture. Now, I do not know how much more explicit a witness, a nominee, can be than Judge Gonzales has been, but if someone does not understand Judge Gonzales's position after this kind of an emphatic, definitive statement, it is plain and clear for the record. The contention has been made that Judge Gonzales agrees with a Bybee memorandum's conclusion that severe pain, for purposes of the torture statute, must be equivalent in intensity to the pain accompanying organ failure, impairment of bodily function, or even death. This has been a source of contention throughout the hearings in the executive session and on the Senate floor. Judge Gonzales responded to the ranking member, who said: Do you agree today that for an act to violate the torture statute it must be equivalent in intensity to the pain accompanying serious physical injury such as organ failure, impairment of bodily function or even death? Judge Gonzales answered: I do not. That does not represent the position of the Executive Branch. So Judge Gonzales categorically repudiated the Bybee memorandum in that respect. There has been a source of argument about what the Bybee memorandum meant and what Judge Gonzales's position was about it. Judge Gonzales was deferential to the determinations by the Department of Justice. There is a complicated issue here as to whether the White House is going to be overly determinative in what the Department of Justice's position should be, and the White House has been very cautious. This is traditional--not just with this White House but with prior White Houses--not to tell the Department of Justice what to say or not to appear to tell the Department of Justice what to say because that would be politicization of a Department of Justice by the White House. The White House's role, as we have emphasized it, is not to tell the Department of Justice what to do, and the Department of Justice and the Attorney General's role is to represent all of the American people and not just the President. There was discussion between the White House and the Department of Justice, as well as other agencies, about what the torture statute meant. Judge Gonzales testified to that and said, in effect, that it would be natural to have those kinds of discussions. Judge Gonzales said: It was very, very difficult. I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the Department. Ultimately, it is the responsibility of the Department to tell us what the law means, Senator. In the very next question, however, we clarified his views on the narrow definition of torture in the Bybee memo. The ranking member asked: Do you agree today that for an act to violate the torture statute it must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death? And as noted previously, Judge Gonzales said he did not. Later, in another response to the ranking member, Judge Gonzales agreed that it would be horrific conduct--I think you would agree to this, and Judge Gonzales did, to what Senator Leahy asked--that cutting off someone's finger would be considered torture. Judge Gonzales also explained his agreement with the conclusion of the Justice Department based on respect for the Department's independence. This is what Judge Gonzales had to say on that facet of the issue: Senator, what you're asking the counsel to do is to interject himself and direct the Department of Justice, who is supposed to be free of any kind of political influence, in reaching a legal interpretation of a law passed by Congress. I certainly give my views. There was of course conversation and a give and take discussion about what does the law mean, but ultimately, ultimately by statute the Department of Justice is charged by Congress to provide legal advice on behalf of the President. Well, it is apparent from the totality of the context of what Judge Gonzales had to say that aside from giving deference to the role of the Department of Justice in interpreting the law, the Bybee memo was not accepted by Judge Gonzales. When it came to the critical question of the assertion in the Bybee memorandum that the President had as much authority on the questioning of detainees as the President had on battlefield decisions, Judge Gonzales said he disagreed with that. When the question came up about the scope of the President's authority to immunize people who would violate Federal law, of course, any suggestion in the Bybee memo or otherwise would be contrary to a basic understanding of the law of the United States, where nobody is above the law. At his confirmation hearing, Judge Gonzales specifically rejected the portion of the August 1, 2002, Bybee memorandum, which asserted that the President, as Commander in Chief, possessed the constitutional authority in certain circumstances to disregard the Federal criminal prohibition against torture. He stated that the memo has been ``withdrawn.'' It has been rejected, including that section regarding the Commander in Chief's authority to ignore the criminal statutes. So it has been rejected by the Executive Branch. I, categorically, reject it . . . [T]his administration does not engage in torture and will not condone torture. A question was raised about a reservation to the Convention Against Torture under article 16, which provided that aliens interrogated by U.S. personnel outside of the United States did not enjoy the substantive rights of the 5th, 8th and 14th amendments, a technical reservation for international law purposes. Judge Gonzales responded that this is a legislative issue that may perhaps require additional consideration. Nevertheless, regardless of the debate about the strict requirements of article 16, Judge Gonzales testified that the administration had sought to be in compliance as a substantive matter under the 5th and 18th amendments. He also testified that to the best of his knowledge, the U.S. has met its obligations under the 5th, 8th, and 14th amendments. A major question was raised about Judge Gonzales's independence. He was emphatic, saying that: If confirmed, I will no longer represent only the White House. I will represent the United States of America and its people. I understand the difference between the two roles. In the former, I have been privileged to advise the President and the staff. In the latter, I would have a far broader responsibility to pursue justice for all the people of our great nation, to see that the laws are enforced in a fair and impartial manner for all Americans. Both Senator Leahy and I, in our opening statements, emphasized this issue, and this was a matter which Judge Gonzales had thought about and had included in his opening statement and was prepared to affirm the very fundamental difference in his duty as Attorney General to the American people, contrasted with his responsibilities as White House Counsel to the President. We have seen a rather dramatic turnabout in the course of the hearings on Judge Gonzales, the issue of the esteem in which he had been held and what Senators had to say about him and what they have said about him since in executive session. Senator Kohl had this to say about Judge Gonzales: We have had an opportunity to work together on several different issues over the years, and I have come to respect you. And I believe if you are confirmed, you will do a good job as Attorney General of the United States. Senator Durbin said: I respect him and his life story very much. Senator Leahy said: When this nomination was first announced, I was hopeful. I noted at the time that I like and respect Judge Gonzales. Senator Schumer said: I like Judge Gonzales. I respect him. I think he is a gentleman and I think he is a genuinely good man. We have worked very well together, especially when it comes to filling the vacancies on New York's Federal bench. He has been straightforward with me and he has been open to compromise. Our interactions haven't just been cordial; they have been pleasant. I have enjoyed the give-and-take we have engaged in. Senator Schumer later said: I was inclined to support Judge Gonzales. I believed, and I stated publicly early on, that Judge Gonzales was a much less polarizing figure than Senator Ashcroft had been. . . . Even if you are, as Judge Gonzales is, a good man, a good person with top-notch legal qualifications, you must still have the independence necessary to be the Nation's chief law enforcement officer. He continues: I still have great respect for Judge Gonzales. He has the kind of Horatio Alger story that makes us all proud to be Americans. It is an amazing country when a man can rise from such humble beginnings to be nominated for Attorney General. So the question arises, as we are engaging in floor debate on the nomination of Judge Gonzales to be Attorney General of the United States, what happened here? We know of the atrocities of Abu Ghraib, and although there have been some efforts in some of the speeches to identify Judge Gonzales with Abu Ghraib, they are not substantial. There have been some criticisms regarding Guantanamo. Those matters are under investigation. But Judge Gonzales is not the interrogator; he is not the questioner; he is not the person who made up the questions; he is not the person who has defined the torture statute. He has been one individual in a series of meetings, where his role has been defined as being the representative of the President. But the role of the Department of Justice is clearly delineated. They are to interpret what the statutes mean. The experts in the CIA and in the Department of Defense have their own responsibilities. So what is happening here? Is it the constant Washington search for political advantage that goes around this town every day? During the course of our discussion on Judge Gonzales, we heard a speech about Social Security. It surprised me a little, in the middle of the proceedings. We have questions on political advantage on so many subjects that I am not going to digress. But there is no doubt that the air is very heavy with politics in this town. We had the nomination proceedings as to Secretary of State Condoleezza Rice. She was challenged in a way that was highly unusual in the Senate of the United States--challenged as to her integrity. Not was she wrong about weapons of mass destruction, but did she falsify, was her testimony deliberately false and misleading. Dr. Rice had more negative votes than any nominee for Secretary of State since John Jay in 1824. That says something about the atmosphere in Washington and the constant Washington search for political advantage. Senator Schumer has raised a contention repeatedly in the course of the proceedings on Judge Gonzales about the so-called nuclear option. He asked Judge Gonzales for his opinion as to whether the so-called nuclear option is constitutional. That is quite a cloud hanging over the Senator--potentially hanging over the Senate--as to whether the rules of the Senate require only 51 votes on the confirmation of a Federal judge as opposed to the requirement of cloture of 60 votes. Senator Schumer has raised that issue. I don't think he is looking for a commitment there as a condition to his vote, so why question Judge Gonzales about that collateral matter that has no bearing on his fitness for the post to which he has been nominated? So there is some sense on my part that we have found a wedge issue. It is certainly true that Judge Gonzales has not been the most artful of witnesses. To say he has a generalized agreement with the Bybee memorandum was not the most artful of answers, after it had been universally condemned and withdrawn by the Department of Justice. But he made that reference as a theoretical matter as to how the White House respects the Department of Justice's role in interpreting the law so that if the Department of Justice came down with an interpretation, Judge Gonzales was not going to say it was wrong to appear to be having undue influence, or to be politicizing the process. But that wasn't the most artful of answers. When asked hypothetical questions about was there any circumstance where the President of the United States might not follow a statute, again, it wasn't the most artful of answers. There is no doubt that Abu Ghraib and Guantanamo and the horrors of torture are overwhelming to the American psyche. Back in 1991, I introduced legislation to protect victims of torture, to have rights of actions in Federal courts. I spoke out about the torture issue before it became a matter for legislation for the Congress generally. The legislation I introduced in 1991 was adopted, so that people who are subjected to torture in foreign countries can sue in U.S. courts. So the issue of torture has always been on the mind of this Senator. It is on the minds of the American people. But Judge Gonzales is not responsible for what went on in Abu Ghraib or Guantanamo. Judge Gonzales is not responsible for actions by the CIA, or the Department of Defense, or for legal opinions by the Department of Justice. If you look at his record and his qualifications as a lawyer, his academic qualifications as a Harvard Law graduate, his qualifications for practicing law with a big firm, his qualifications for being a supreme court justice in Texas, his qualifications for being White House Counsel for 4 years, where Judge Gonzales has had contact with many Senators--I dare say in that capacity, my colleagues in the Senate would share my views that he was always courteous, always relevant, always on top of the issues in discussing judicial nominees, where most of us have had some role to confirm a judge in his or her State. I think the comments would be uniform, as the ones I quoted, about how pleasant it was and how effective it was and how professional it was to deal with Judge Gonzales. So if the winds of Abu Ghraib and Guantanamo had not blown across this hearing, I think we would have had perhaps a unanimous vote in favor of Judge Gonzales. In this highly charged political atmosphere, one has to wonder whether he is not, himself, a torture victim. He is clearly a victim of Washington politics. Judge Gonzales is still highly likely to be confirmed. He was voted out of committee on a party-line vote. It had been my hope and expectation at an earlier stage that it would have been a strong bipartisan vote. It is still my hope and expectation he will be confirmed with some bipartisanship, but it will not be the kind of strong vote that would have given him a much stronger position as Attorney General absent the Bybee memo, Abu Ghraib, and Guantanamo. But on the basis of his academic, professional, and public service record, there was much, and still is much, on which to recommend him to be the Attorney General of the United States. Mr. President, I have taken some more time. I made a very short opening statement to begin debate today and have listened to the arguments made by Senators from the other side of the aisle and find factually that they are off the mark; that in terms of what Judge Gonzales has had to say out of his own mouth have come very forceful denunciations of torture, very forceful denunciations of the Bybee memorandum, and a strong statement as to why he ought to be the next Attorney General of the United States. Mr. President, I ask unanimous consent that the following list be next in order of Republican speakers: Senator Coburn, Senator Sessions, Senator Brownback. Before the Chair rules, I will add that we will continue to alternate between Republican and Democratic speakers.

Mr. SPECTER

Mr. SPECTER. Mr. President, we have consent following the lunch. I think the Senator from----

Mr. SPECTER. The Senator is entitled to finish.

Mr. SPECTER. There had been a request for Senator Mikulski for 10 minutes right after lunch.

Mr. SPECTER. That will be agreeable.

Mr. SPECTER. Mr. President, will the Senator from Utah be willing to await the completion of the remarks of Senator Mikulski for 10 minutes at 2:15 and Senator Schumer at 2:15 and then he will resume his remarks?