Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the subcommittee on National Parks of the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Thursday, April 8, 2004 at 2:30 p.m. The purpose of the hearing is to review the National Park Service Concessions Program, including implementation of the National Park Service Concessions Management Improvement Act of 1998.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on Thursday, April 8, 2004, at 10 a.m., to conduct a hearing on ``Review of Current Investigations and Regulatory Actions Regarding the Mutual Fund Industry.''

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on Thursday, April 8, 2004, at 10 a.m. on Judicial Nominations in the Dirksen Senate Office Building Room 226. Witness List Panel I: Senators. Panel II: William Duane Benton, to be United States Circuit Judge for the Eighth Circuit. Panel III: Robert Bryan Harwell, to be United States District Judge for the District of South Carolina; George P. Schiavelli, to be United States District Judge for the Central District of California; Curtis V. Gomez, to be Judge for the District Court of the Virgin Islands.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on April 8, 2004 at 2:30 p.m. to hold a closed business meeting.

Mr. SPECTER. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a hearing on Thursday, April 8, 2004, at 2:30 p.m. on ``Keeping America's Mass Transportation System Safe: Are the Laws Adequate?'' in the Dirksen Senate Office Building Room 226. Witness List Panel I: Harry S. Mattice, Jr., United States Attorney, Eastern District of Tennessee, Chattanooga, TN; S. Mark Lindsey, Chief Counsel, Federal Rail Administration, United States Department of Transportation, Washington, DC. Panel II: Ernest R. Frazier, Sr., Chief, System Security and Safety, National Railroad Passenger Corporation (Amtrak), Washington, DC; Brian Jenkins, Director, National Transportation Security Center, Mineta Transportation Institute, San Jose, CA.

Mr. SPECTER

Mr. SPECTER. We are proceeding with another meeting this afternoon. The majority leader has deferred taking up the bill; had originally planned to do so in March, and at the request of a number of people, including this Senator, the majority leader has deferred taking floor action on the bill and has now listed floor action for the day we return from the next recess, which is April 19. Just yesterday, the majority leader, Senator Frist, and Senator Hatch, the chairman of the committee, introduced a substitute bill. Senator Hatch has done an outstanding job on this matter, has worked through the process of establishing a trust fund which was originally set at $108 billion, since has been increased, with a schedule of payments to be determined very much like worker's compensation so that liability does not have to be established. Senator Leahy spoke earlier today and raised questions about the desirability of the substitute bill which was introduced yesterday, with Senator Leahy saying that there has yet to be achieved consensus on two essential elements of a FAIR trust fund, that is fair value awards and the total amount of the trust fund. The parties are as yet substantially apart on these two items, and it is my hope that we can come to agreement. Senator Frist, the majority leader, has made a determination that setting a date will facilitate more intense negotiations, so to speak, on the courthouse steps, and that is a generalization. I hope that if we are not in agreement, but close to agreement, that there may be yet some flexibility in the date listed for floor action. I declined to join with Senator Frist and Senator Hatch in their substitute bill because I think it is the better practice to try to work through these problems. We have made enormous progress, and it is my hope we can make more progress to be ready to reach the date which the majority leader has set. If we are able to come to terms, it will be an enormous economic stimulus to rescue some 70 companies which are in bankruptcy, and it will be of enormous importance to the workers who have been exposed to asbestos and have serious ailments, including mesothelioma, which is a deadly ailment. We are going to proceed to try to do that work. I am hopeful we will be able to come to terms with these outstanding problems and present a bill which can be enacted into law to solve these very serious problems. To reiterate, on April 7, 2004, Majority Leader Frist and Senator Hatch introduced a substitute bill to S. 1125, the Fairness in Asbestos Injury Resolution Act, FAIR Act, of 2004. S. 1125 was reported out of the Judiciary Committee on July 10, 2003, by a vote of 10 yeas, 8 nays and 1 pass. I voted for it. 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. More than 8,500 companies have been named as defendants in asbestos litigation.'' In 2003 alone, a record 100,000 asbestos claims were filed. Seventy companies have already gone bankrupt due to asbestos liability. As it has been noted before, the bill reported out of the Judiciary Committee bill required a great deal of evaluation, analysis and significant changes. I contacted senior Circuit Judge Edward R. Becker, who had been chief judge of the Court of Appeals for the Third Circuit until May 5 of last year. Judge Becker has expert insights into this matter and since August of 2003, we have convened some 14 meetings with the representatives from the manufacturers, the insurance companies, the reinsurers, organized labor and the trial lawyers. Through the series of meetings with Judge Becker, we have wrestled with and have been able to solve a number of very complex issues. We have had the cooperation of many Senators. Senators Hatch and Leahy have had representatives at the meetings. In fact, Senator Hatch addressed this ``working group'' at one of our meetings. The majority leader and minority leader have had representatives at the meetings. Senators Dodd, Carper, Feinstein and Nelson have been represented as well. I am encouraged and appreciative to note that some of these agreements that resulted from our meetings have been incorporated into the Frist-Hatch substitute asbestos bill. Included in the substitute bill are the following provisions negotiated through these meetings. No. 1, streamlining administrative process, S. 2290 creates a more streamlined administrative system that can be up and running quickly. The trust fund will be administered by the Department of Labor, as opposed to the Court of Federal Claims under S. 1125. No. 2, early startup, the bill aims to ensure that the compensation program under the bill can commence operations and begin paying claims quickly, particularly for living mesothelioma victims and for other exigent claimants who may have little time to wait. Such claimants should not be subject to unacceptable delays in obtaining compensation due to impediments in commencement of Fund operations. The agreed-upon administrative structure, for example, includes provisions for interim regulations and houses the Office for Asbestos Disease Compensation in the Department of labor, which has the experience and the infrastructure to help expedite the establishment of a claims processing system. The proposal addresses the need to ensure that monies are available to the Fund in a short amount of time to be able to pay claims. It has two elements: 1, requiring up-front funding; and 2, providing increased borrowing authority. First, participants would be required to provide funding on an expedited basis. This bill would establish a system where all participants would be required to make initial payments within 6 months of enactment. Participants may seek judicial review after they make a payment, but cannot use judicial review to delay payment. Strict deadlines on lawsuits challenging the constitutionality of the funding procedure have been included in the judicial review provisions, and reviewing courts will be precluded from staying funding obligations pending review. Also, the borrowing authority of the administration under the bill would be expanded to allow for borrowing initial monies needed to establish and operate the asbestos compensation program from the date of enactment. No. 3, defining exigent health claims that should be given priority during the startup period. A claim shall qualify for treatment as an exigent health claim if the claimant is living and the claimant provides: 1, documentation that a physician has diagnosed the claimant as having mesothelioma; or 2, a declaration or affidavit, from a physician who has examined the claimant within 120 days before the date of such declaration or affidavit, that the physician has diagnosed the claimant as being terminally ill from an asbestos-related illness and having a life expectancy of less than one year. The Secretary may, in final regulations promulgated, designate additional categories of claims that qualify as exigent health claims under this subsection. No. 4, judicial review, language is included in S. 2290 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 provision also authorizes direct appeal to the Supreme Court on an expedited basis. An action under this section shall 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. No. 5, medical monitoring, the working group also worked very hard in making sure that the medical monitoring provisions ensured that the initial doctor's visit was covered. We will be back to work today to continue addressing the remaining issues. We are determined to solve the problems. The stakes are very high. We have many injured workers who are relying on some answers for just compensation. The companies are looking for answers, and the economy needs to be stimulated and also looks for an answer. I yield the floor.

Mr. SPECTER. Mr. President, I have sought recognition to comment briefly upon the status of legislation to deal with the asbestos crisis which faces America. We have had it said that purportedly there are some 70 companies which have gone into bankruptcy proceedings or reorganization proceedings. There are some 600,000 claims which have been filed by individuals who have been exposed to asbestos and make allegations of injury; some 8,500 companies have been sued. So we have a net situation today where there are people who have been exposed to asbestos, who suffered from mesothelioma, which is a deadly disease, and they are now not being compensated because the defendants are in bankruptcy. We have had a ruling by the Supreme Court of the United States that claimants who have been exposed to asbestos may receive compensation for whatever injuries they may in the future sustain, without having the proof as to existing damages, which seems inappropriate to this Senator. It was a narrow 5 to 4 decision. We have had many companies, some in my home State, and all across the country, in bankruptcy proceedings where commerce has been impeded, and if we are able to find an answer to this very vexing problem, it would be an enormous economic stimulus to the economy of the United States. In July, the Judiciary Committee passed out a bill largely along party lines. I supported it even though I said at the committee markup that I thought there were many infirmities and many problems, but I voted to move it out of committee to get the process going. A very unique, really unprecedented procedure was then adopted where the former Chief Judge of the Court of Appeals for the Third Circuit, a very distinguished jurist, Judge Edward R. Becker, agreed to participate in what were essentially mediation proceedings for 2 days in August, August 18 and 19. Judge Becker and I sat in his chambers in Philadelphia with representatives of the manufacturers, of the insurers, the reinsurers, the AFL-CIO, and the trial lawyers to start going through the very complex issues which were involved to try to come to some resolution. Following those 2 days of meetings, we have met on 14 occasions in my offices in Washington with those same participants, the same so-called stakeholders. In between the meetings which Judge Becker and I have held with the stakeholders, they have met among themselves and have worked out many of the issues. I am pleased to report at this time that agreements have been reached on quite a number of the tough issues. For example, the startup arrangements have been worked out so that funding has been provided for the defendants' expanded borrowing authority to make money available right away. There are provisions which provide for increased liquidity and upfront funding so that claims can be paid in short order. There have been provisions worked out for streamlining the administrative process. The Court of Federal Claims initially had that authority. We have worked with the Department of Labor. I compliment the Department of Labor for helping us work through a procedure for streamlining the administrative process. We have to define exigent health claims so people who are suffering from mesothelioma and other deadly ailments will get early treatment. We have worked through the processes on judicial review. We have worked through the processes on medical commodity. I ask unanimous consent that a schedule of the meetings which have been held with Judge Becker, some 14 in number, and the manufacturers' representatives, representatives of the insurers, AFL-CIO and trial lawyers, be printed in the Record.

Mr. SPECTER. Will the Senator from Louisiana yield for a unanimous consent request?

Mr. SPECTER. Madam President, I ask unanimous consent that following the statement by the Senator from Louisiana, I be recognized for 10 minutes.

Mr. SPECTER. Madam President, if I may have the attention of the Senator from Iowa, Mr. Grassley, I seek 10 minutes to talk about the asbestos bill, which we are having a meeting on this afternoon.

Mr. SPECTER

Mr. SPECTER. Madam President, I support legislation which would address certain serious problems faced today by doctors, hospitals, and other medical professionals who provide obstetrical and gynecological services and emergency or trauma care services, and at the same time provide balance to fairly treat people who are injured in the course of such medical treatment. While most of the attention has been directed to OB/GYN and ER malpractice verdicts, the issues are much broader involving medical errors, insurance company investments, and administrative practices. I support caps on noneconomic damages so long as they do not apply to situations such as the paperwork mixup leading to the double mastectomy of a woman or the death of a 17-year-old woman in a North Carolina transplant case where there was a faulty blood type match, or comparable cases in OB/GYN or the ER trauma services area. An appropriate standard for cases not covered could be analogous provisions in Pennsylvania law which limit actions against governmental entities in the limited tort context which exclude death, serious impairment of bodily functions, and permanent disfigurement or dismemberment. Beyond the issue of caps, I believe there could be savings on the cost of OB/GYN or ER trauma malpractice insurance by eliminating frivolous cases by requiring plaintiffs to file with the court a certification by a doctor in the field that it is an appropriate case to bring to court. This proposal, which is now part of Pennsylvania State procedure, could be expanded federally, thus reducing claims and saving costs. While most malpractice cases are won by defendants, the high cost of litigation drives up malpractice premiums. The proposed certification would reduce plaintiffs' joinder of peripheral defendants and cut defense costs. Further savings could be accomplished through patient safety initiatives identified in the report of the Institute of Medicine. On November 29, 1999, the Institute of Medicine issued a report entitled ``To Err Is Human: Building a Safer Health System.'' The IOM report estimated that anywhere between 44,000 and 98,000 hospitalized Americans die each year due to avoidable medical mistakes. However, only a fraction of these deaths and injuries are due to negligence. Most errors are caused by system failures. The Institute of Medicine issued a comprehensive set of recommendations, including the establishment of a nationwide mandatory reporting system, incorporation of patient safety standards in regulatory and accreditation programs, and the development of a nonpunitive culture of safety and health care organizations. The report called for a 50-percent reduction in medical errors over 5 years. The Appropriations Subcommittee on Labor, Health and Human Services, and Education, which I chair, held three hearings to discuss the Institute of Medicine's findings and explore ways to implement the recommendations outlined in the IOM report. For fiscal year 2001, the subcommittee bill contained $50 million for a patient safety initiative and directed the Agency for Health Care Research and Quality to develop guidelines on the collection of uniform error data; establish a competitive demonstration program to test best practices, and to research ways to improve provider training. In fiscal year 2002 and 2003, $55 million was included to continue these initiatives. In this year, fiscal year 2004, we increased the amount provided for patient safety to $79.5 million. We have received an interim report informing us the creation of a positive safety culture at hospital and health care facilities in which employees believe they would not be punished for reporting errors has caused reporting rates of such errors to increase. The emerging positive culture also includes the involvement of key leaders, both administrative and clinical, in patient safety procedures. This has helped professionals move ahead to improve patient safety and the establishment of patient safety committees, development and adoption of safe protocols and procedures and enhanced technology as a tool where carefully implemented to reduce errors and approve safety, for example, through the use of computerized physician order entry. There is evidence that increased OB/GYN and ER trauma insurance premiums have been caused at least in part by insurance company losses, the decline in the stock market of the past several years, and the general ratesetting practices of the industry. As a matter of insurance company calculations, premiums are collected and invested to build up an insurance reserve where there is considerable timelag between the payment of the premiums and litigation which results in a verdict of settlement. When the stock market has gone down, for example, that has resulted in insufficient funding to pay claims and the attendant increase in insurance premiums. A similar result occurred in Texas on homeowners insurance where cost and availability of insurance premiums became an issue because companies lost money in the market and could not cover the insured losses on their accounts. In structuring legislation to put a cap on jury verdicts, due regard should be given to the history and development of trial by jury under the common law where reliance is placed on average men and women which comprise a jury to reach a verdict resulting from the values and views of the community. Jury trials in modern tort cases descend from the common law jury trial in trespass, drawn from and intended to be representative of the average members of the community in which the alleged trespass occurred. This coincides with the incorporation of negligence standards of liability into trespass actions. This representative jury right in civil actions was protected by consensus among the State drafters of the United States Constitution's Bill of Rights. The explicit trial-by-jury safeguards in the seventh amendment to the Constitution were an adaptation of these common-law concepts harmonized with the sixth amendment clause that local juries be used in criminal trials. Thus, from its inception in common law through inclusion in the Bill of Rights today, the jury in tort negligence cases is meant to be representative of the judgment of average members of the community, not of elected representatives. The right to have a jury trial to decide one's damages has been greatly circumscribed in recent decisions by the U.S. Supreme Court. An example is the analysis the Court has recently applied to limit punitive damage awards. In recent cases, the Court has shifted its seventh amendment focus away from two centuries of precedent in deciding Federal appellate review of punitive damage awards will be decided on a de novo basis and a jury's determination of punitive damages is not a finding of fact for purposes of the reexamination clause of the seventh amendment which provides ``no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.'' Thus, in the year 2003, the Court reasoned that any ratio of punitive damages to compensatory damages greater than 9 to 1 would likely be considered unreasonable and disproportionate, although that is subject to certain exceptions and constitutes an unconstitutional deprivation of property in non-personal injury claims. Plaintiffs will inevitably face a vastly increased burden to justify a greater ratio and appellate courts have far greater latitude to disallow or reduce such awards, although increased awards can be permitted under the Supreme Court decision. These decisions may have already, in effect, placed caps on some jury verdicts in malpractice cases which may involve punitive damages. Consideration of the many complex factors on the Senate floor on the pending legislation will obviously be very difficult in the absence of a markup in committee or the submission of a committee report and a committee bill. The pending bill is the starting point for analysis, discussion, debate, and amendment. I am prepared to proceed with the caveat there is much work to be done before the Senate would be ready, in my opinion, for the consideration of final passage. I yield the floor.

Mr. SPECTER

Mr. SPECTER. I thank the Chair. (The remarks of Mr. Specter pertaining to the submission of S. Res. 327 are located in today's Record under ``Submission of Concurrent and Senate Resolutions.'') Recent Violence in Iraq

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to introduce the High-Risk Non-Profit Security Enhancement Act of 2004 together with my colleague Senator Mikulski. Since 9/11, al-Qaida has attacked a series of so-called ``soft targets'' around the globe including hotels, synagogues, social centers and facilities of the Red Cross. This grim reality is forcing such soft targets here in the United States to confront the need for very expensive security enhancements to their facilities. This legislation will help non-profit organizations--those soft targets least able to afford these security enhancements--to do the work that they need to do such as the building of concrete barriers and the ``hardening'' of windows and doors. On February 11, 2003, CIA Director George Tenet provided the following testimony to the Senate Select Committee on Intelligence: Until al-Qaida finds an opportunity for the big attack, it will try to maintain its operational tempo by striking ``softer'' targets. And what I mean by ``softer,'' Mr. Chairman, are simply targets al-Qaida planners may view as less well protected. . . . Al-Qaida has also sharpened its focus on our Allies in Europe and on operations against Israeli and Jewish targets. Also on February 11, 2003, FBI Director Robert S. Mueller testified as follows before the Senate Select Committee on Intelligence: Multiple small-scale attacks against soft targets--such as banks, shopping malls, supermarkets, apartment buildings, schools and universities, houses of worship and places of recreation and entertainment--would be easier to execute and would minimize the need to communicate with the central leadership, lowering the risks of detection. The record has sadly confirmed the words of Directors Tenet and Mueller. Al-Qaida has been responsible for a series of attacks against soft targets including numerous synagogues, A Red Cross building, train stations, hotels airports, restaurants and night clubs. These targets have been in countries throughout the world including Spain, Germany, Iraq, Tunisia, Kenya, Morocco and Turkey. In the face of this very real terrorist threat, these soft targets have an obligation to take the necessary steps to better protect themselves and all who visit their facilities. These additional security measures place an especially heavy burden upon non-profit corporations with limited resources. Effective security measures do not come cheap. This legislation would authorize the Secretary of Homeland Security to make available in FY 2005 up to $100 million in assistance to non profits which demonstrate a high risk of terrorist attack. In choosing which projects to fund, the secretary will give preference to those non profit organizations he determines to be at the greatest risk of international terrorist attack based upon the following criteria: (1) Specific threats of international terrorist organizations; (2) Prior attacks against similarly situated organizations; (3) The vulnerability of the specific site; (4) The symbolic value of the site as a highly recognized American institution; or (5) The role of the institution in responding to terrorist attacks. Applicant organizations would submit request to state homeland security authorities that would identify and prioritize high-risk institutions. Qualifying requests would be forwarded to the Secretary of Homeland Security who would allocate resources based on his assessment of the risk. Payments would be made from the Department of Homeland security directly to the contractors who will do the work. For those programs that do not get their security projects funded, Federal loan guarantees would also be available so that they can take out loans on favorable terms. The bill also authorizes $50 million for local police departments to provide additional security in areas where there is a high concentration of high-risk non-profits. Mr. President, the threat of terrorism is placing an enormous burden on non-profit organizations that face a higher risk of terror attack due to their affiliation of function. This bill is an important step towards helping these non-profits meet these new and expensive security needs. It is my hope that my colleagues will join me in addressing this overlooked front in the war on terror.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition today to introduce the High-Risk Non-Profit Security Enhancement Act of 2004 together with my colleague Senator Mikulski. Since 9/11, al-Qaida has attacked a series of so-called ``soft targets'' around the globe including hotels, synagogues, social centers and facilities of the Red Cross. This grim reality is forcing such soft targets here in the United States to confront the need for very expensive security enhancements to their facilities. This legislation will help non-profit organizations--those soft targets least able to afford these security enhancements--to do the work that they need to do such as the building of concrete barriers and the ``hardening'' of windows and doors. On February 11, 2003, CIA Director George Tenet provided the following testimony to the Senate Select Committee on Intelligence: Until al-Qaida finds an opportunity for the big attack, it will try to maintain its operational tempo by striking ``softer'' targets. And what I mean by ``softer,'' Mr. Chairman, are simply targets al-Qaida planners may view as less well protected. . . . Al-Qaida has also sharpened its focus on our Allies in Europe and on operations against Israeli and Jewish targets. Also on February 11, 2003, FBI Director Robert S. Mueller testified as follows before the Senate Select Committee on Intelligence: Multiple small-scale attacks against soft targets--such as banks, shopping malls, supermarkets, apartment buildings, schools and universities, houses of worship and places of recreation and entertainment--would be easier to execute and would minimize the need to communicate with the central leadership, lowering the risks of detection. The record has sadly confirmed the words of Directors Tenet and Mueller. Al-Qaida has been responsible for a series of attacks against soft targets including numerous synagogues, A Red Cross building, train stations, hotels airports, restaurants and night clubs. These targets have been in countries throughout the world including Spain, Germany, Iraq, Tunisia, Kenya, Morocco and Turkey. In the face of this very real terrorist threat, these soft targets have an obligation to take the necessary steps to better protect themselves and all who visit their facilities. These additional security measures place an especially heavy burden upon non-profit corporations with limited resources. Effective security measures do not come cheap. This legislation would authorize the Secretary of Homeland Security to make available in FY 2005 up to $100 million in assistance to non profits which demonstrate a high risk of terrorist attack. In choosing which projects to fund, the secretary will give preference to those non profit organizations he determines to be at the greatest risk of international terrorist attack based upon the following criteria: (1) Specific threats of international terrorist organizations; (2) Prior attacks against similarly situated organizations; (3) The vulnerability of the specific site; (4) The symbolic value of the site as a highly recognized American institution; or (5) The role of the institution in responding to terrorist attacks. Applicant organizations would submit request to state homeland security authorities that would identify and prioritize high-risk institutions. Qualifying requests would be forwarded to the Secretary of Homeland Security who would allocate resources based on his assessment of the risk. Payments would be made from the Department of Homeland security directly to the contractors who will do the work. For those programs that do not get their security projects funded, Federal loan guarantees would also be available so that they can take out loans on favorable terms. The bill also authorizes $50 million for local police departments to provide additional security in areas where there is a high concentration of high-risk non-profits. Mr. President, the threat of terrorism is placing an enormous burden on non-profit organizations that face a higher risk of terror attack due to their affiliation of function. This bill is an important step towards helping these non-profits meet these new and expensive security needs. It is my hope that my colleagues will join me in addressing this overlooked front in the war on terror.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to submit a resolution providing for a protocol for the nonpartisan confirmation of judicial nominees. We have come to a crisis situation in the Senate on the confirmation of Federal judges. This has been a highly controversial subject since the beginning of the Republic. There have been controversies from time to time, pitched debates in the Senate Chamber, nominees confirmed and some nominees rejected. The current controversies focused significantly in the last 2 years of President Reagan's Presidency when the Democrats won control of the Senate in the 1986 elections. For the last 2 years of President Reagan's tenure, the Presidential appointments were slowed down. The same thing happened during the 4 years of President George Herbert Walker Bush. When President Clinton was elected, and we had a Democrat in the White House, when we Republicans gained control of the Senate in the 1994 elections, President Clinton's nominations were slowed down. Pretty much a tit-for-tat situation. Now that we have had both the Presidency and the Senate under Republican stewardship, the controversy has reached a new level where for the first time in the history of the Republic, court of appeals nominees have been filibustered. The responsibility of the President has been to use his constitutional authority for interim appointments. Those two interim appointments have been roundly criticized by the Democrats. And the position has been stated on the other side of the aisle that there will be no more confirmations of Federal judges until there is a commitment, an indication, or some statement, or some understanding that the interim appointments will no longer be made. My State of Pennsylvania is very severely impacted by this controversy. We have a nomination pending before the Senate of a distinguished Federal judge, Judge Van Antwerpen, who is ready for confirmation. The Court of Appeals for the Third Circuit is badly understaffed. We have some five nominees for the United States District Court for the Eastern District of Pennsylvania awaiting confirmation. There again, the courts are in need of the services of these prospective Federal judges. The resolution, which I am submitting today, is a protocol which would call for a hearing in the Judiciary Committee 30 days after a President submits a nomination; 30 days later, a vote by the committee; 30 days after that, floor action in the Senate; 30 days after that, a decision on the outcome. It is true there would not be the opportunity for filibuster, but the Republic has survived for more than 200 years before the filibuster was used. There was one illustration where there was a filibuster for a Supreme Court nominee, but that is really irrelevant to the kinds of controversies we have now, or the situation we are in at the present time. Beyond my State of Pennsylvania, there are other States, other circuits, having judicial crises, and we ought to take the Federal judicial nominating confirmation process out of the politicization course, and we ought to try to work this through. It may be that, in August, when there is some uncertainty as to who will occupy the White House and which party will control the Senate, that some accommodation can be reached. But right now litigants are being denied the prompt disposition of their cases. It is a well-known maxim that justice delayed is justice denied. It is my hope that we could find an accommodation somewhere here to do the people's business. It is well known that partisanship is at a very high level in the Congress today--in the House of Representatives, where there is a narrow margin for the Republicans; and the partisanship here in the Senate, where there is a 51-49 majority for the Republicans. But we ought to establish a protocol. We ought to establish a procedure. The protocol I am proposing is not in concrete. I am prepared to discuss it to find ways of working it out. I had thought of putting in a provision that if it was a party line vote in the Judiciary Committee, even though there was not a majority in favor of sending a nominee to the floor, but a party line vote, that it come to the floor. I have decided to omit that. I had thought about putting a provision in that if the Supreme Court nominee did not have a majority, the nominee would come to the floor in any event. And I have omitted that. Twice in the past 14 years, nominees have come to the floor of the Senate for the Supreme Court of the United States without having a majority vote in the Judiciary Committee. But both times--one a 5-to-8 vote, the nominee came to the floor; another time, on a 7-7 tie, there was a 13-1 vote to send the nominee to the floor. And I have decided, in the interest of avoiding a controversy, to omit that. But I ask my colleagues to review this resolution for a protocol and to see if we cannot find some way to confirm Federal judges without figuring out whose ox is being gored.

Mr. SPECTER

Mr. SPECTER. Mr. President, I support enhanced penalties for criminal acts of violence against pregnant women. My concern with the DeWine bill is that it unnecessarily seeks to weigh in on the abortion controversy with the definition of ``unborn child'' and ``child in utero.'' I voted for the Feinstein amendment because it accomplishes the substantive criminal law objectives of the DeWine bill without raising a potential issue on a possible challenge to Roe v. Wade. When the Feinstein Amendment lost, I voted for final passage of the DeWine Bill in order to impose appropriate double sanctions for the murder or assault of a pregnant woman that interferes with a pregnancy.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment briefly on the bill, S. 1125, which provides for relief on the serious problem facing America involving asbestos. I have had a number of inquiries on the status of the bill. I recently received a comprehensive memorandum by former Chief Judge Edward R. Becker for the Court of Appeals for the Third Circuit. I thought it would be useful to comment as to the status of this bill at the present time. Asbestos litigation has caused some 67 bankruptcies in America, and the injuries from asbestos have left workers without compensation and suffering from mesothelioma, asbestosis, and other very serious ailments. In July, the Judiciary Committee passed out S. 1125. I voted for it. It was a vote pretty much along party lines. We passed it out of committee so we could take the next step looking toward floor action. But the bill required a great deal of evaluation, analysis, and significant changes. I contacted senior Circuit Judge Edward R. Becker, who had been chief judge of the Court of Appeals for the Third Circuit until May 5 of last year. Since he had been involved in major asbestos litigation, I thought he would have special insights into this issue and this problem. He is one of America's leading Federal jurists, if not the leading Federal jurist. He received the Devitt award last year as the author of many scholarly opinions. He was a district judge from 1970 to 1982. He has been on the Court of Appeals for the Third Circuit from 1982 until the present time. I think bringing in a Federal jurist to help on a legislative matter is unprecedented. During the month of August, when the Senate was in recess, 2 full days were spent in Judge Becker's chambers in Philadelphia, where I attended, and we had representatives from the manufacturers of asbestos; insurance companies, which insured asbestos manufacturers; reinsurers, who reinsured the insurers; representatives of the AFL-CIO, representing the injured parties; and trial lawyers, also representing the injured parties. Since those two meetings in August, there have been a series of additional meetings in Washington in my office, where Judge Becker has attended. One meeting involved Majority Leader Bill Frist. Another meeting involved representatives of the Department of Labor. In total, there have been some 15 meetings. We are scheduled to have our 16th one on Thursday of this week. The bill--the product of very inventive thinking by the chairman of the committee, Senator Hatch--has created a fund, funded initially at $104 billion. It has subsequently been increased. The thrust was to create a schedule of payments very much like workers' compensation, where there would not have to be proof of causality, proof of liability; but once the damages were established coming from asbestos, the payments would follow this schedule. The situation has been compounded, as I say, by the bankruptcy proceedings and the reorganization of some 67 companies. The law has been that workers, or others exposed to asbestos, could be compensated for the full range of their potential injuries even if they had not yet sustained those injuries--a result which I submit does not make good sense in a context where many people who have serious injuries, mesothelioma, asbestosis, and others who are not being compensated at all. This seeks to correct those inequities. We have wrestled with a great many of the problems, and we have solved a great many issues. Enormous progress has been made on others. We have had the cooperation of many Senators. Senator Hatch has had representatives at the meeting. Senator Leahy, the ranking Democrat, has had representatives there. The majority leader, Senator Frist, and the Democratic leader, Senator Daschle, have had representatives there. Senators Dodd, Carper, Feinstein and Nelson have also participated with representatives present. Judge Becker prepared a very comprehensive memorandum, dated March 16, outlining the evaluation of the current status of ongoing efforts to achieve a consensus among the manufacturers and insurers, the trial lawyers, and the AFL-CIO. It is my view that this is the kind of bill that cannot be enacted unless there is a consensus. Unless there is agreement among all of the stakeholders or parties, I think we will not be able to enact this important legislation. If this legislation were to be enacted, it would be an enormous stimulus to the economy and would take these many companies that are in bankruptcy proceedings out of those proceedings so that they become again productive. Many of those companies are in my home State of Pennsylvania and many across the country. That is a very brief summary as to where we stand. We will be back at work on Thursday. We are determined to solve these problems. I am optimistic they can be solved. The majority leader has stated his intention to bring this matter to the floor for a vote some time next month. I think we are very close to knowing whether we can resolve these issues, and we will continue to try to do that. I repeat, I am optimistic we can resolve the issues. The stakes are very high. We have many injured workers who are relying upon some answer to their just compensation. The companies are looking for an answer, and the economy needs to be stimulated and also looks for an answer. I ask unanimous consent that the memorandum from Senior Chief Judge Edward R. Becker, dated March 16, 2004, be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I call up amendment No. 2741 and send a modification to the desk.

Mr. SPECTER. The NIH did not send this Senator anywhere. My views arrive from my own research. When I hear the Senator from New Mexico disagreeing with the research, I think about how many times he has come to me and I have helped him on funding for mental health. That is a very vital part of what NIH is doing, a matter of great importance to the Senator from New Mexico, just as so many of these maladies are important to every Senator in this Chamber.

Mr. SPECTER. Mr. President, I ask for the yeas and nays.

Mr. SPECTER. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. SPECTER. Mr. President, for the information of my colleagues, this is an amendment which seeks to add $1.3 billion to funding for the National Institutes of Health, with an offset against function 920, amounting to one-sixth of 1 percent on administrative costs. I express my concern about offering an amendment at 11:04 p.m. for a rollcall vote, but as stated by the chairman of the Budget Committee, I have been patient waiting for 3\1/2\ days to offer this amendment. And I do so because of the importance of funding for the National Institutes of Health, which has made such enormous progress against many deadly maladies. Last year, we had a spirited debate, at about this same hour, on an amendment I offered for a $1.5 billion increase, which required 60 votes, and failed with 52 votes in the affirmative--8 votes short of the 60 necessary at that time. The National Institutes of Health have made phenomenal progress against the most deadly diseases: autism, stroke, obesity, Alzheimer's, Parkinson's, spinal muscular atrophy, scleroderma, ALS, muscular dystrophy, diabetes, osteoporosis--a variety of cancers: breast, cervical, and ovarian; lymphoma, multiple myeloma, prostate, pancreatic, colon, head and neck, brain, and lung--pediatric renal disorders, multiple sclerosis, deafness and other communication disorders, glaucoma, macular degeneration, sickle cell anemia, heart disease, spinal cord injury, Sudden Infant Death Syndrome, arthritis, schizophrenia and other mental disorders, polycystic kidney disease, hepatitis, Cooley's Anemia, primary immune deficiency disorders, stroke, and obesity. But I would supplement this list for the Record, Mr. President. When those disorders and diseases are articulated, they cover some 128 million Americans. This increase in funding is necessary if the NIH is to proceed with very important research. For example, the NIH cannot initiate the necessary clinical trials to test four new drugs for the treatment of Parkinson's disease. The experts have testified we are within 5 years of a cure on Parkinson's. Without this kind of funding, there is no clinical trial for a promising new drug treatment for amyotrophic lateral sclerosis, and the NIH must postpone the production and clinical testing of four potential pandemic influenza vaccines for a year or more. And we know the tremendous impact on the influenza problem. Without this funding, the NIH cannot launch a clinical trials network to test new therapies for age-related macular degeneration, nor can NIH launch an initiative to identify and test approaches to reducing cardiovascular disease that are specific to American Indian and Alaska Native populations. Without this funding, NIH cannot use its clinical trial networks to launch trials on the consequences of the use of more than one psychiatric medication by the severely mentally ill. I have a long additional list. I see the impatience of the chairman of the Budget Committee, and I share his impatience. I understand the hour, so I ask unanimous consent that the full next of the test trials which cannot be undertaken by the NIH be printed in the Record.

Mr. SPECTER. Mr. President, I am pleased to comment briefly at this time to express my support and cosponsorship, as Chairman of the Senate Committee on Veterans' Affairs, of the amendment that has been offered by the Senator from Alaska, Ms. Murkowski, pertaining to veterans' medical care funding. Senator Murkowski's amendment would increase funding for most critical discretionary account of the Department of Veterans Affairs, VA, VA medical care account, by $1.2 billion. According to materials distributed by the Budget Committee, the resolution reported out by the Budget Committee had already proposed to increase such funding by $1.4 billion. Thus, approval of the Murkowski amendment will up VA medical care spending, relative to the Congressional Budget Office-computed baseline, by $2.6 billion. This number compares quite favorably to the medical care appropriations ``plus up'' of $2.1 billion that the Ranking Member of the Veterans' Affairs Committee, Senator Bob Graham, and I indicated was necessary in the ``views and estimates letter'' that we provided to the Budget Committee on March 4, 2004. It also compares quite favorably to the two record-breaking increases of $2.4 billion and $2.9 billion that have been provided by Congress in the past 2 fiscal years for the VA medical care account. Clearly, this Congress--and this President--are fulfilling the commitment that we, as a nation, owe to those who have served. I urge all of my colleagues to support this amendment. It is good for veterans, and it is good for the Nation.

Mr. SPECTER. Mr. President, in conclusion--the two most popular words of any speech--in a budget of $2.4 trillion, funding of $30 billion is not too much on this major problem. I yield the floor.

Mr. SPECTER. Mr. President, 1 minute in reply?