Arlen Specter

Mr. SPECTER

Mr. SPECTER. I yield the floor.

Mr. SPECTER. Mr. President, I call amendment No. 2254. Mr. President, before the amendment is read, I ask unanimous consent I be permitted to modify the amendment. What I intend to do here is to change the source of the funding for an additional $2 billion for the National Institutes of Health. Instead of taking it from the tobacco reserve fund--instead, to have an across-the-board cut of four-tenths of 1 percent. That is the modification which I seek to make.

Mr. SPECTER. Mr. President, this amendment would provide for $2 billion extra for NIH to offset by four-tenths of 1 percent a cut in all programs. This body has expressed a sense of the Senate that we should double NIH over 5 years, which will call for $2.5 billion a year. This is a lesser amount. We have expectations built up by the sense-of-the-Senate expression of our druthers. Now is the time to put our dollars behind it. Although there is paperwork to the contrary, Mr. President, although the budget does not determine how it is going to go, which is through the appropriations process, we will have only $350 million in additional outlays for an $80 billion budget by the subcommittee. We need this $2 billion if we are to move ahead on the important NIH functions.

Mr. SPECTER. Mr. President, I oppose the amendment in the second degree because an additional study is not necessary. The matter has already been studied extensively by the Veterans Administration. There has been an opinion of the General Counsel that nicotine is a disease and that it is compensable. A study might be all right if we did not take $10.5 billion off what ought to be in the Veterans' Affairs account--the Department of Veterans' Affairs account--and put it somewhere else. I believe the underlying amendment by the Senator from West Virginia is accurate. The second-degree amendment ought to be defeated. I will yield the floor.

Mr. SPECTER. I reserve the remainder of my time.

Mr. SPECTER. Mr. President, I believe that veterans are entitled to be compensated for illnesses related to smoking because that has been the determination of the General Counsel of the Veterans Administration and the doctors who have analyzed this program. The Veterans' Affairs Committee had an extensive hearing on this matter a few days ago. The reallocation of $10.5 billion to another expenditure line, I believe, is unfair to the veterans of America. Young people are taken away from homes. They are put in situations of stress. Cigarettes are provided either free or at a low cost. The determination has been made by the General Counsel that nicotine dependence is a disease and it is compensable. If the money is not to go for tobacco-related illnesses, it ought to remain in the VA funds generally, because the VA funds are very, very limited for the tremendous obligation owed to the veterans of America. I believe another source of funding might be available from the tobacco funding. And as much as I want to see the highway program proceed, and highways are very necessary as a matter of infrastructure for America, I believe the veterans' benefits come first. I do not believe we need any additional studies on this matter. The analysis has been made extensively by the general counsel that it is a disease, that nicotine addiction is a disease, and the veterans are entitled to be compensated. These funds ought to be made available to the veterans, as Senator Rockefeller has proposed. How much time do I have, Mr. President?

Mr. SPECTER. I thank my distinguished colleague and friend, Senator Domenici, for his comments. He has enumerated programs which will be cut. It is a matter of priorities. When he has recited there is an assumption of $1.5 billion for the National Institutes of Health, I have to disagree, because the Budget Committee assumes only an outlay increase of $350 million over the level from fiscal year 1998. There are also increases in education and child care programs. So there could not possibly be an increase at NIH with an increase of only $350 million in outlays. As Senator Domenici has recited a number of cuts, let me just recite a partial list of the people who come to me as chairman of this subcommittee, who want increases in funding for breast cancer, cervical cancer, colon cancer, Alzheimer's disease, cystic fibrosis, diabetes-- including juvenile diabetes--kidney ailments, amyotrophic lateral sclerosis, Parkinson's, schizophrenia, scleroderma, epilepsy, heart disease, prostate cancer, pulmonary disorders, AIDS, osteoporosis, Huntington's disease, to mention only a few. The fact is that many Senators receive awards from Alzheimer's or Parkinson's or AIDS, et cetera. This is a matter of priority, pure and simple. Senator Domenici is a valued member of the committee. He and I sit next to each other on the Appropriations Committee, have for years, and he comes and talks about mental illness programs. We have accommodated that as a very high priority. That is what the Senator has to do, establish the priorities. I say that it is worth the four-tenths of 1 percent cut across the board for this high priority for the National Institutes of Health. I yield the floor.

Mr. SPECTER. Yes.

Mr. SPECTER. Mr. President, if I may have the attention of the distinguished chairman, Senator Harkin has made a request to have 5 minutes reserved and he is at another hearing. I wonder if we might accommodate him at a later time.

Mr. SPECTER. How much time remains on each side?

Mr. SPECTER. I yield the floor. Mr. DOMENICI addressed the Chair.

Mr. SPECTER. How much time remains, Mr. President?

Mr. SPECTER. Mr. President, I will have printed in the Record a ``Dear Colleague'' letter on the amendment which I had intended to offer, as I described earlier, opening the tobacco reserve to permit it to be used for biomedical research. This letter was circulated on March 31, 1998, cosigned by Senator Harkin, Senator Boxer, Senator Hollings, and myself. We had a list of some 18 cosponsors to Senate Resolution 170, which was a sense-of-the-Senate resolution which I had submitted earlier in the session. It had been my intention to have a freestanding sense-of-the-Senate resolution to increase NIH funding by $2 billion. I had made an effort, with the cooperation of our distinguished majority leader, to have that listed as a freestanding resolution which I had hoped to bring to a vote before the budget resolution came up. We had anticipated voting on it on Monday or Tuesday, but it was not cleared. So we did not have an opportunity to bring up that resolution. The point of the resolution was to see how many people would say, as a matter of druthers or sense of the Senate, that they would support it, and contrast it to the number of people who would support the hard- dollar transfer. I do not know--the budget resolution moves so fast-- how many more of the 18 who are cosponsors of Senate Resolution 170, which is sense of the Senate, will join here. These four Senators on this letter support increasing biomedical research by $2 billion. Mr. President, I ask unanimous consent to have printed in the Record the ``Dear Colleague'' letter to which I referred.

Mr. SPECTER. I compliment the managers of the bill, especially my distinguished colleague Senator Domenici, for his very prodigious work on this budget and the budgets in the years that I have been here, going back to 1981. I offer an amendment to what Senator Domenici has done with some trepidation, but I do so because I think it is a very important matter, and I offer this amendment really in my capacity as chairman of the appropriations subcommittee which has jurisdiction over the funding for Health and Human Services and for the National Institutes of Health. As I read the budget resolution with my expert staff, there is not funding for the subcommittee to be able to add funds for the National Institutes of Health. The distinguished chairman and I have had some disagreement on the import of the budget resolution, but as I read it, with my experts on the staff, there is only $350 million for outlays, which would not accommodate the kind of increase which this Senate is on record as being committed to. Last year, a sense-of-the-Senate resolution was adopted to double NIH funding over the next 5 years, and that has been a rallying cry and one with which I agree. Were that standard to be met, it would mean more than $2.5 billion a year. Notwithstanding that amendment having been adopted for fiscal year 1998, the year we are in, when the Budget Committee returned last year's budget, the health account was cut by $100 million. Therefore, Senator Harkin, my distinguished ranking member on the subcommittee, and I had set a target of a 7.5 percent increase for NIH, which is a good bit below the doubling over 5 years. We thought that was all we could afford. We then offered an amendment, similar to the one now being offered, for an across-the-board cut to enable us to increase NIH funding by $1.1 billion. That amendment was defeated 63 to 37, so that when it came to expressing our druthers, or our preferences, we were very generous as a Senate body, and said we would double NIH funding over 5 years, or more than $2.5 billion a year. But when it came time to specify where the money was going to come from and have a hard dollar amount, that was defeated, as I say, 63 to 37. We are very generous with our druthers, but we are not very generous with our dollars. We had a hearing, coincidentally, just yesterday in our regular quarter for the experts at the National Institutes of Health to come in and testify about the grants which are made, about 28 percent of those which are offered, and there would be a very, very substantial additional number of grants awarded if the additional funds were there. We have a total budget of $1.7 trillion. I believe that it is a matter of assessing our priorities. It is my submission in this amendment, with my distinguished ranking member, Senator Harkin, that we ought to up the ante by at least $2 billion. I know that when it comes across the board, it is goring a lot of oxen, and there will be many who will object because it comes out of their funds. If we are going to articulate our priority for NIH, then we ought to put our money where our mouths are and put up the money to actually fund it. I changed the thrust of the amendment, as noted, to move away from the tobacco reserve fund, because that is a giant pot we are talking about on the tobacco settlement, but I think it is pie in the sky. It is questionable, speculative, and perhaps doubtful that those funds will be realized. In making the plans for our subcommittee, I want to know where we stand. That is why we are talking about hard dollars in this amendment. It is not too hard to say, ``Well, we'll get it from the tobacco reserve fund, because it really is highly speculative as to whether it will ever exist.'' I believe that with the identification of many of the genes by the National Institutes of Health, we are on the brink of conquering cancer, on the brink of conquering Alzheimer's, on the brink of conquering Parkinson's, on the brink of conquering heart disease, on the brink of conquering AIDS, on the brink of conquering many of the maladies which afflict mankind, but it takes dollars. When you allow 28 percent of the grants, that means 72 percent of the doors are closed; 72 percent which are not allowed. If we open those doors, I think we will be enormously productive in seeing to it that we make the maximum effort to pursue breast cancer and prostate cancer and cervical cancer and Alzheimer's and a long list of maladies which confront us at the present time. That is the essence of the amendment, Mr. President. I know my distinguished colleague, Senator Harkin, wishes some time, so let me inquire at this point how much time is left on the 15 minutes of allocation.

Mr. SPECTER. Did I understand the distinguished Senator to say that he had no objection to the modification?

Mr. SPECTER. Mr. President, I ask unanimous consent the modification not be read because it simply strikes certain lines, which will be unintelligible, but the import of it is to have a four-tenths of 1 percent cut across the board.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to explain my vote against the Coverdell Amendment, which has a laudable objective of reducing the federal tax burden on millions of American families, but goes about funding such tax relief in a manner which I cannot support. Specifically, the Coverdell Amendment provides for $101.5 billion/ five years in tax relief through making more Americans eligible for the 15 percent tax bracket. The revenues lost through this amendment would be made up by cuts in all non-defense discretionary spending programs and over the same five-year period. As Chairman of the Labor, Health and Human Services, and Education Appropriations Subcommittee, I know how hard it is to reduce federal spending. I have used a scalpel, not a meat axe, to cut 134 federal programs over the last five years, with savings totaling $1.5 billion. The cuts proposed in the Coverdell Amendment for FY99 include $1.5 billion from health programs such as the National Institutes of Health and $2.5 billion from education, job training, employment, and social services. Other cuts in the Coverdell Amendment trouble me, such as $737 million in transportation and over $1 billion in cuts for veterans' programs in FY99. With respect to the tax relief offered by the Coverdell Amendment, I do not believe it actually goes far enough toward flattening the current tax brackets. My own approach toward reducing the tax burden on Americans is my Flat Tax Act (S. 593). I am troubled that Americans spend 5.4 billion hours and $600 billion each year complying with the complexities of the 12,000 pages of the Internal Revenue Code rules and regulations. I believe that the best answer for alleviating the tremendous tax burden on America's working families and businesses is a flat tax, and have proposed replacing the current tax code with a 20 percent flat tax on individuals and businesses that could be filed on a simple 10-line postcard. S. 593 increases the personal and dependent allowances for families and preserves two key deductions that make the tax burden a little more bearable for working families: deductions of home mortgage interest capped at $100,000 in borrowing, and for up to $2500 in charitable contributions. For example, a typical couple with two children earning $30,000 would save about $1,100. It also eliminates taxes on estates, dividends and capital gains. With respect to businesses, S. 593 would eliminate the intricate scheme of complicated depreciation schedules, deductions, credits and other complexities that go into business taxation. Businesses would be allowed to expense 100 percent of the cost of capital formation, including purchases of capital equipment, structures, and land, and do so in the year in which the investments are made. With a flat tax, Americans' savings rates will rise, and the pool of capital available for investment in business expansion and job creation will expand dramatically. Reasonable estimates are that a flat tax can lower interest rates by two points, pump an additional $1 trillion into the economy over seven years, and raise the per capita income of every American by $1,900.

Mr. SPECTER

Mr. SPECTER. Mr. President, for the Barzilay, Morgenstern and Specter families, it is a great honor for Judith M. Barzilay to become a judge on the U.S. International Court of Trade. She was nominated by the President on January 27 and confirmed by the Senate March 11, 1998. For her immigrant grandparents, Harry and Lillie Specter and Max and Regina Morgenstern, it is an accomplishment beyond their aspirations even though they knew they came to a land of great opportunity. In May of 1947, Max and Regina left the bar and grill which they operated on Flatbush Avenue in Brooklyn to visit their son, Arthur, his wife Hilda, her parents in Russell, KS, and, most of all to see their granddaughters, Judith, age 3, and Julia, 3 months old. By then, Judy pretty much presided over her parents' household just as she had over the household of her Specter grandparents after she was born on January 3, 1944. Judith was the New Year's baby of Russell for 1944. In New York City, the first born in the New Year probably arrived at 12:01 a.m., but it took 3 days for Russell's first arrival in 1944. She came with a retinue of presents from the town's merchants and to our five-room bungalow at 115 Elm Street. My sister, Hilda, her mother, was a brilliant graduate from the University of Wichita in 1942, had won a scholarship to Syracuse University to pursue a masters degree in governmental administration. She had met, Arthur Morgensten, a handsome lieutenant stationed at Fort Riley, when he came to Wichita in the fall of 1941 to attend Yom Kippur services. They fell in love. So when he was about to ship overseas to the South Pacific in April 1943, Hilda took the transcontinental train ride to San Francisco where they were married. It was not the typical wartime romance with a weekend honeymoon, because the marriage has lasted 1 day shy of 55 years and is still going strong. When Hilda came home to Russell, KS, to await Judith's arrival, our family was overjoyed, including me, her little brother, although I took up residence in the scorpion-infested basement and gave up high school basketball to take over Hilda's bookkeeping job at O.K. Rubber Welders I might add--at 50 cents an hour. For me, Judy was more like a sister than a niece during that time. For my parents, Judy was the apple of their eyes. When our sister, Shirley, took off a year from Oklahoma College for Women to teach country school, my father would leave his junkyard to drive Shirley to school with his virtual constant companion, Judith, sitting beside him in the truck without the modern safeguards of seat belts. My brother, Morton, returned to Russell to join my father and Arthur in a partnership which moved from junk, that is scrap metal, to used oil field equipment to stripper wells. The Morgenstern children, Judy and Julia, joined by twins Jonathan and Johanna in 1952, were the centerpieces of our close-knit family. When the children grew older and their parents wanted a Jewish education for them, the Morgensterns moved to Wichita where Hilda took on the job of superintendent of the Hebrew School. Wichita was inadequate so they moved to Denver. Denver was inadequate so they moved to New York City. New York City was inadequate, so they moved to Jerusalem where Hilda and Arthur live to this day. Meanwhile Judy was a serious and accomplished student receiving a B.A. degree from Wichita State University and M.L.S. and J.D. from Rutgers University. After graduation from law school, she was a staff attorney with the International Trade Office of the U.S. Department of Justice from 1983 through 1986. She then practiced law with the prestigious firm of Siegel, Mandell & Davidson in New York City for 2\1/2\ years before joining Sony Electronics, Inc., where she worked from October 1988 to the present attaining the position of vice president of government affairs. With 16 years of experience as a manager, litigator, and business adviser, she was appointed by Treasury Secretary Robert Rubin in 1995 to the Treasury Advisory Committee on Commercial Operations of the U.S. Customs Service. She has lectured on international trade law and its application to business. With this extraordinary background, she is preeminently well qualified for the U.S. International Court of Trade. While it is customary to make a floor speech on confirmation of a nominee, I have taken a little more time of the Senate and the cost of printing in the Congressional Record because I believe it is worthwhile to note the accomplishments and contributions of families of America's immigrants. We debate the immigration issue in Congress in a variety of contexts, so it is important to chronolog how our country has been enriched by the immigrants' families as evidenced by the new judge for the U.S. International Court of Trade: the Honorable Judith M. Barzilay.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment briefly upon the amendment which was argued a little earlier in the day. I had been on the floor when the amendment by the distinguished Senator from Oklahoma, Mr. Nickles, was offered. There were many Senators here, and I had other commitments. I am going to support Senator Nickles' amendment, although I do so with some substantial concern for the funding at HCFA. When the additional personnel had been requested to move forward on the provisions of the Kassebaum-Kennedy bill, it seems to me that Senator Nickles had made a valid argument that most of the States, almost all of the States, have applied and it is not in an emergency classification. I am further concerned that this funding has been requested by the Department of Health and Human Services on an emergency appropriations bill which does not quite fit the mold. Where we have these emergency appropriations bills, it is my view that we really ought to limit them to matters that are truly emergencies and not seek to pile on and use this as an occasion for appropriations which really can wait their turn. I speak on this amendment in my capacity as chairman of the appropriations subcommittee which has jurisdiction over the Department of Health and Human Services. We conduct, through my subcommittee, considerable oversight on HCFA. I am very much concerned that they should be adequately funded to carry out their duties. Last week, we had a hearing with HCFA on the issue of the changes in compensation for a variety of physician categories, and at the same time we also had a hearing for the appropriation for fiscal year 1999 where the Secretary of Health and Human Services testified and the Administrator of HCFA, Min DeParle, testified as well, and did not raise the issue of this appropriation in this emergency appropriations bill. So I do think that had it been a matter of great urgency, in my capacity as chairman of that subcommittee, it would have been called to my attention, it would have been impressed on me, which was not the case. In reviewing this matter with the distinguished chairman of the Appropriations Committee, I do concur with his analysis that it is not an appropriate matter for an emergency appropriation. And if it is the enforcement of Kassebaum-Kennedy, there are personnel available to do that, and that is not at a critical stage. I had heard that the appropriation was sought to carry forward the change in the schedule on physicians' compensation, but apparently that does not seem to be the case. So, as I say, I am ready, willing, and able to take a look at what HCFA needs. We are now in the process of considering the appropriations bill for next year, and I think an orderly process makes it preferable that we consider this appropriation request at that time. I thank the Chair and yield the floor.

Mr. SPECTER. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

Mr. SPECTER. Mr. President, as Chairman of the Committee on Veterans' Affairs, I have today introduced, at the request of the Secretary of Veterans Affairs, S. 1822, a proposed bill to authorize the provision of medical care to veterans who were treated with nasopharyngeal radium irradiation. The Acting Secretary of Veterans Affairs submitted this proposed legislation to the President of the Senate by letter dated August 11, 1997. Mr. President, it is my usual practice, as Chairman of the Committee on Veterans Affairs, to introduce Administration-requested legislation that is referred to the Committee without commenting on the substance of the introduced bills, without committing myself to either support or oppose the legislation in question, and without seeking co-sponsors. In this case, I have departed from my usual practice due to the unusual nature of this legislation, which is long overdue. I am pleased that Senator Jay Rockefeller, the Ranking Minority Member of the Committee on Veterans Affairs, has joined me as a cosponsor. A medical treatment known as nasopharyngeal radium irradiation --the inserting of a radium-tipped metal rod through the nose--began in 1924 at the Johns Hopkins University as a means to treat middle ear obstructions and deafness. It was also commonly used to treat children with chronic ear infections. Even until the mid 1960's, medical textbooks recommended this treatment to shrink adenoid tissue in children. It is estimated that from 500,000 to 2 million persons may have received nasopharyngeal radium irradiation treatments over the years. During the 1940's and 1950's--and perhaps later--the military treated submariners and air crew members with nasopharyngeal radium irradiation to prevent ear injury caused by severe pressure changes encountered in submarine and flight duty. The Final Report of the Advisory Committee on Human Radiation Experiments issued in 1995 cites one case where the Navy in the early 1940's treated 732 submariners with nasopharyngeal radium irradiation to equalize middle ear pressure with a 90 percent success rate. Unfortunately, scientific research now suggests that individuals who received this then-accepted medical treatment may be at increased risk for developing head and neck cancers and other types of diseases and disorders. When nasopharyngeal irradiation was administered, radiation targeted to lymph tissue also affected the brain and other tissues in the head and neck, including the paranasal sinuses, salivary glands, thyroid and parathyroid glands. Mr. President, the Committee on Veterans Affairs will fully develop the scientific record on this legislation. I will not now, therefore, discuss at length the evidence to support the proposition that veterans who received such therapy should now be eligible for VA care to treat the previously unknown medical consequences of nasopharyngeal radium irradiation. Suffice it to say now that the quantum of radiation to which people were routinely exposed as a consequence of nasopharyngeal radium irradiation far exceeded levels that would be judged acceptable today. Our colleague from Connecticut, Senator Lieberman, stated it well when he commented in August 1994, at a hearing of the Environment and Public Works Subcommittee on Clean Air and Nuclear Radiation: ``. . . the best evidence of the danger of this radium treatment is the fact that no doctor in his right mind would think of performing such a procedure today.'' VA has proposed that veterans who received such treatment in the past be deemed eligible for treatment of cancers and other diseases and disorders that might be associated with this well-intentioned, but seemingly misguided, exposure to radiation. This legislation, if enacted, would authorize VA to treat such veterans on the same priority basis as it treats veterans who may have been exposed to ionizing radiation during weapons testing or during the occupation of Japan following World War II. It would also authorize VA to examine any veteran who was subjected to nasopharyngeal irradiation and include any findings in the VA's radiation registry. As Chairman of the Veteran's Affairs Committee, I urge my colleagues in the Senate to join me in supporting this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, as Chairman of the Committee on Veterans' Affairs, I have today introduced, at the request of the Secretary of Veterans Affairs, S. 1822, a proposed bill to authorize the provision of medical care to veterans who were treated with nasopharyngeal radium irradiation. The Acting Secretary of Veterans Affairs submitted this proposed legislation to the President of the Senate by letter dated August 11, 1997. Mr. President, it is my usual practice, as Chairman of the Committee on Veterans Affairs, to introduce Administration-requested legislation that is referred to the Committee without commenting on the substance of the introduced bills, without committing myself to either support or oppose the legislation in question, and without seeking co-sponsors. In this case, I have departed from my usual practice due to the unusual nature of this legislation, which is long overdue. I am pleased that Senator Jay Rockefeller, the Ranking Minority Member of the Committee on Veterans Affairs, has joined me as a cosponsor. A medical treatment known as nasopharyngeal radium irradiation --the inserting of a radium-tipped metal rod through the nose--began in 1924 at the Johns Hopkins University as a means to treat middle ear obstructions and deafness. It was also commonly used to treat children with chronic ear infections. Even until the mid 1960's, medical textbooks recommended this treatment to shrink adenoid tissue in children. It is estimated that from 500,000 to 2 million persons may have received nasopharyngeal radium irradiation treatments over the years. During the 1940's and 1950's--and perhaps later--the military treated submariners and air crew members with nasopharyngeal radium irradiation to prevent ear injury caused by severe pressure changes encountered in submarine and flight duty. The Final Report of the Advisory Committee on Human Radiation Experiments issued in 1995 cites one case where the Navy in the early 1940's treated 732 submariners with nasopharyngeal radium irradiation to equalize middle ear pressure with a 90 percent success rate. Unfortunately, scientific research now suggests that individuals who received this then-accepted medical treatment may be at increased risk for developing head and neck cancers and other types of diseases and disorders. When nasopharyngeal irradiation was administered, radiation targeted to lymph tissue also affected the brain and other tissues in the head and neck, including the paranasal sinuses, salivary glands, thyroid and parathyroid glands. Mr. President, the Committee on Veterans Affairs will fully develop the scientific record on this legislation. I will not now, therefore, discuss at length the evidence to support the proposition that veterans who received such therapy should now be eligible for VA care to treat the previously unknown medical consequences of nasopharyngeal radium irradiation. Suffice it to say now that the quantum of radiation to which people were routinely exposed as a consequence of nasopharyngeal radium irradiation far exceeded levels that would be judged acceptable today. Our colleague from Connecticut, Senator Lieberman, stated it well when he commented in August 1994, at a hearing of the Environment and Public Works Subcommittee on Clean Air and Nuclear Radiation: ``. . . the best evidence of the danger of this radium treatment is the fact that no doctor in his right mind would think of performing such a procedure today.'' VA has proposed that veterans who received such treatment in the past be deemed eligible for treatment of cancers and other diseases and disorders that might be associated with this well-intentioned, but seemingly misguided, exposure to radiation. This legislation, if enacted, would authorize VA to treat such veterans on the same priority basis as it treats veterans who may have been exposed to ionizing radiation during weapons testing or during the occupation of Japan following World War II. It would also authorize VA to examine any veteran who was subjected to nasopharyngeal irradiation and include any findings in the VA's radiation registry. As Chairman of the Veteran's Affairs Committee, I urge my colleagues in the Senate to join me in supporting this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask that the text of the bill, S. 1751 introduced on Thursday, March 12, 1998 be printed in the Congressional Record. The text of the bill follows:

Mr. SPECTER

Mr. SPECTER. Madam President, I have sought recognition to comment on the nomination of Judge Frederica Massiah-Jackson for the U.S. District Court for the Eastern District of Pennsylvania, and that nomination having been withdrawn this afternoon at the request of Judge Massiah- Jackson. I appreciate and understand the reasons leading to her withdrawal. I commend Judge Massiah-Jackson for her tenacity and courage and for completing the record on all the new questions which were unexpectedly raised at last week's hearing, on Wednesday, March 11. At the outset, I want to thank our distinguished majority leader, Senator Lott, for his courtesies on this matter and to thank my distinguished colleague, Senator Santorum, for his strenuous efforts in seeking the second hearing for Judge Massiah-Jackson in an effort to try to do the fair thing with Judge Massiah-Jackson. I think it is important to future nominations to face up to exactly what happened in this matter to prevent a recurrence and to improve the system for the future. In my judgment, Judge Massiah-Jackson was unfairly treated by her opponents, and in my judgment, Judge Massiah- Jackson was unfairly treated by the Senate Judiciary Committee. I believe it is important to find out about nominees who are submitted for the Federal bench because that is a very, very important appointment having lifetime tenure. I believe the law is the highest calling and that the courts have been established to adjudicate disputes between the government and the government's citizens and between people and among parties. I have spent my entire adult life as a lawyer, and I consider it a high calling. There are many of those attributes which are important in the course of working as a U.S. Senator, especially on the Judiciary Committee. In my judgment, Judge Massiah-Jackson's opponents dealt with her unfairly at the outset by seeking to kill her nomination anonymously. If anyone had anything to say about Judge Massiah-Jackson, I believe they should have come forward and should have come forward at an early date. She was nominated for the judgeship on July 31, but it was not until almost 6 months later that her opponents came forward, after there had been two hearings and after the Senate Judiciary Committee had approved her nomination by a vote of 12-6. When those anonymous complaints were filed--which led some people to say that she was soft on crime, and I thought without any basis to do so from those anonymous complaints--Senator Santorum and Senator Biden and I held an unusual field hearing in Philadelphia on October 3, and we invited people to come forward. We specifically invited some who later turned out to be among her most vocal critics. But no one came forward at that time. Instead, we had a group of judges who had served with her--I believe five in number--who said she was well within the mainstream. We had representatives of the distinguished mayor of Philadelphia, Edward Rendell, himself a former district attorney. Mayor Rendell said publicly and expressed to me privately, ``Stick with the public record; Judge Massiah-Jackson was an excellent nominee for the district court.'' Mayor Rendell said she had been appealed very little with respect to sentencing, that she had a very, very good record. While Mayor Rendell could not be present at the October 3 hearing, his representative was, as were others. Then the Judiciary Committee held a hearing in late October, and in early November voted Judge Massiah-Jackson out by a vote of 12-6. It was not until later--I believe in early January--that opponents began to surface. Some of those opponents had previously said directly to Judge Massiah-Jackson that her nomination was applauded, that the celebration on swearing-in was an event to be looked forward to. When these opponents came forward, Senator Santorum and I said that we ought to have a full inquiry into what the objections were. Toward that end, on January 23, we met with district attorneys in my office in Philadelphia and heard complaints of a very generalized nature; very few cases were mentioned, with the district attorneys saying that they would file their objections within a week so that we would know what was on the record and we could make a determination as to what to do, because a vote had been scheduled for Judge Massiah-Jackson for January 28. The vote was put off to give the district attorneys an opportunity to present their objections. They filed them on February 2, which was a Monday, a little late, but OK. Then Judge Massiah-Jackson went to work to respond to quite a number of cases which the district attorneys had raised. It seemed to me that, notwithstanding the fact that the district attorneys were very late in presenting their objections, they ought to be heard, there ought not to be a time limit. If they had not come forward early, let them come forward later and let us find out what their objections were, let us give Judge Massiah-Jackson an opportunity to respond, and then let the Senate make a judgment. Then the hearing for Judge Massiah-Jackson was set for last Wednesday, March 11. By this time, the district attorneys had created a considerable crescendo of public opposition. They had done that on a selective citation of cases, illustrative of which was a case involving undercover officers who, Judge Massiah-Jackson's critics said, had been exposed in open court. But when that matter was pursued, it was determined that those officers had testified in open court and their identities had been disclosed. So there was hardly anything to be disclosed since it had already occurred in open court. Another case which was widely publicized was a case where Judge Massiah-Jackson had deferred the imposition of sentence on a case involving a defendant motorist who had struck a pedestrian. When those facts were looked into in some detail, it was determined that the victim had asked for the postponement in order that the defendant could make restitution, that, in fact, the defendant had made restitution. That case was appealed to the Pennsylvania higher courts as to the adequacy of Judge Massiah-Jackson's opinions, and the appellate court said Judge Massiah-Jackson had acted properly. In the totality of cases, Judge Massiah-Jackson handled some 4,000 cases between 1984 when she was appointed to the bench and 1991 when she stopped sitting on criminal cases. There were only four appeals taken from her sentences. In one of those appeals she was reversed because she had given too long a sentence. The guidelines had been exceeded, so said the appellate court. She was too tough. She imposed too long a sentence. In the other three cases, she was reversed twice and upheld once. But three appeals by the Commonwealth involving many, many sentences coming out of some 4,000 cases which had been heard--not all resulted in sentences because some were acquittals--is not too bad a record, to say it very, very plainly. When the district attorneys had submitted, I believe it was 39 cases on February 2, not 50 which they said they would submit, in an analysis of the representations by the district attorneys to what the transcripts showed, there was a wide variance. The district attorneys had taken the facts as they represented them in the light according to the Commonwealth's witnesses but did not take into account witnesses for the defense or the issues of credibility or the other matters in which a judge might make a different finding. In the hearing on March 11, I put a number of those matters into the Record. The hearing of March 11 was really a very extraordinary one, in my opinion. By the time these selective cases had been disseminated to law enforcement agencies, quite understandably, quite a number of law enforcement agencies came forward to object to Judge Massiah-Jackson. That is not surprising because they did not know the entire record. It ought to be pointed out that this confirmation process for Judge Massiah-Jackson has come on the heels of a very unusual case captioned Commonwealth v. Lambert, a murder case out of Lancaster County, PA, where a judge on the U.S. District Court for the Eastern District of Pennsylvania--the same court to which Judge Massiah-Jackson had been nominated--where a Federal district court judge in Philadelphia had found constitutional error, which is not surprising, but it was surprising that the judge had ordered that there be no retrial in that case involving a conviction for murder. That was an extraordinary ruling, and in my legal research, unprecedented. I joined with Congressman Pitts and others in introducing legislation to clarify that jurisdiction of a district court judge. The finding of constitutional error is well within the purview of the court, the suppression of that evidence is well within the purview of the court, but it is not within the purview of the court to say that the case could not be retried. That is a matter for the State court in Lancaster County and for the Lancaster County district attorney. The district attorneys who had opposed Judge Massiah-Jackson were very explicit in saying that they were not going to see another judge sent to the district court like the one who had ravaged, they said practically ruined, the district attorney of Lancaster County. So against that recent backdrop, it was not surprising that when law enforcement agencies saw a limited part of the record without knowing all of the facts, that they would be opposed to Judge Massiah-Jackson. It is not irrelevant to point out that I was district attorney in Philadelphia for 8 years, from 1966 to 1974, and before that an assistant district attorney for 4 years and, obviously, have had considerable experience in the criminal courts of Philadelphia. The decisions which Judge Massiah-Jackson made were well within the keeping of the Philadelphia criminal courts. I take second place to no one in battling with the judges on the issues of sentencing. When I was district attorney of Philadelphia, I made it a practice to petition for reconsideration of a sentence when I thought the sentence was inadequate. I went right before the court, and on one occasion was so tenacious that I was held in contempt of court when I protested a lenient sentence imposed on someone convicted of selling drugs, 6 ounces of pure, uncut heroin. I was so insistent on battling the judges on the issue of sentencing that procedure was taken away from the district attorneys by a superior court opinion, saying it was double jeopardy and the courts of Pennsylvania had noted my opposition to sentencing. So that was gone. I also took a common law appeal to try to appeal sentences when I was district attorney from 1966 to 1974. The D.A. did not have a right of appeal, and I drafted legislation to give the district attorney the right of appeal, and ultimately that statute came into existence. But when I was district attorney, I found three very egregious cases and decided to take an appeal to the Pennsylvania Supreme Court to argue a common law right of appeal. One of the cases, as I recollect, was a motorist who had been convicted of drunken driving and was driving on a revoked license and killed two people and had gotten probation. I thought that was horrendous and thought there ought to be a right of appeal. Another case involved, as I recollect it, the deputy commissioner of licensing inspections, convicted of 40 counts of corrupt practices, and got probation. Another case which I considered an outlandish sentence and thought there ought to be a right of the district attorney to appeal involved a defendant named Arnold Marks. I have referred to the 6 ounces of pure, uncut heroin worth $280,000, as I recollect it, and 6\1/2\ months in jail. The Supreme Court of Pennsylvania disagreed with me, fairly unceremoniously, and said I did not have a right of appeal and dismissed my effort. As I say, the district attorney's right to file an appeal was later upheld by statute, so if anybody today disagrees with the judge's sentence or anybody disagreed with Judge Massiah-Jackson's sentences, they could take it to appeal. As I say, it only happened three times by the district attorney's office in the handling of some 4,000 cases. There were occasions when I challenged the judges on the findings of the fact. In those days the Commonwealth district attorney had a right to demand a jury trial. We did not have a right of appeal, but we did have a right to demand a jury trial as party to the proceedings. And it was with some frequency that I exercised that right to demand a jury trial--so often that the supreme court changed the rule, and said the district attorney no longer had the right to demand a jury trial. So I take second place to no one, Madam President, in terms of battling on findings of fact in criminal cases and battling on the issue of sentencing. And I take second place to no one since coming to the Senate, having been elected in 1980, and having authored the armed career criminal bill. This is a very strong statute dealing with 15- years-to-life sentences for career criminals who have three major convictions--not larceny of cookies, I might add, but robbery or burglary or sale of major drugs, and later found in possession of a firearm--to get a life sentence; 15 years to life--15 years is the equivalent of a life sentence in the Federal prisons. There is legislation which I worked on for the better part of a decade, which abbreviates the amount of time there can be on appeal in the Federal courts from a State conviction with the death penalty from about 15 years, which the cases have taken 2 1/2 years; I have also been in the lead on getting adequate funding for the Federal Bureau of Investigation for a variety of State action and as well as for Bureau of Alcohol, Tobacco, and Firearms. The March 11 hearing, Madam President, I thought was atrocious, to use a fairly mild word, because Judge Massiah-Jackson was confronted on that morning at 9:30, when the hearing started, with new batches of cases which the district attorneys had submitted by letter dated March 6, which was the Friday before. However, my staff did not get these until 10:40 p.m. on March 10, long after I had retired. I saw these cases at 9 o'clock when I came to my office. I did not have any time to review them, and Judge Massiah-Jackson did not see them at all. Now, the most fundamental aspect of due process is notice and an opportunity to be heard and then a hearing. But the quintessential point about due process is notice. How can Judge Massiah-Jackson be called upon to respond to cases which she has not seen for a decade, or for 15 years? One of the cases involved a 1994 trial. Other cases involved 1988 and 1989 trials. It was said--and I think appropriately-- that for Judge Massiah-Jackson to salvage her nomination last Wednesday she would have to hit a home run and the bases would have to be loaded. She was facing a very steep, uphill climb. But the reality was that she had no chance to do that because she was confronted with cases which were a decade old, or more. And when she said, ``I do not recall,'' it was taken that she should have recalled. It may not be a matter that is realized by Senators who are used to attending hearings, but when a witness appears before a hearing in the U.S. Senate, there is a certain amount of trepidation, especially when a judicial nominee appears in a Judiciary Committee hearing. There is a substantial amount of trepidation because that person's appointment to the Federal bench is on the line. I have seen many highly experienced trial lawyers with 30 years of practice at the bar, nominees who come from Pennsylvania whom I know very well, of great stature, of great aplomb, of great presence, come before the Judiciary Committee frightened like children in school, apprehensive, very, very nervous as to what is happening. And that is when they appeared before just a single Senator who is presiding at the hearing, or perhaps someone chairing the hearing and a ranking member from the minority party. Judge Massiah-Jackson walked into the hearing last Wednesday. The panel was loaded with people who were opposed to her, people who were asking her about cases which she had not had any notice of for a decade or for 15 years. Then, in an even more astonishing development, some of the Senators had transcripts which had been provided, according to the fax notes-- you could see it on the transcripts--the night before at 5 o'clock in the evening. One transcript bore the note of ``Philadelphia District Attorney's Office,'' and another transcript bore the note ``Philadelphia DA's Law Division.'' So they had at least two fax machines, and both were busy turning out these faxes going to selected members of the Judiciary Committee--not to Arlen Specter, not to the chairman of the Judiciary Committee, but going to certain members, and not to Judge Massiah-Jackson, who was then asked questions about them. It was true that the Senator said, ``Well, now, you may not recollect this, and I know you have not seen these cases''--which were submitted with transmittal letters, as I said, on March 6, and as I previously said, which I had not seen until the morning of March 11 and Judge Massiah-Jackson had not seen at all --``but let's see if you could respond to the questions.'' Well, when she says she doesn't remember, it doesn't look too good for her. When she is confronted with transcripts where the Senator's then say, ``Well, maybe this will refresh your recollection,'' and the transcript is read to her, and she does not remember, she doesn't look too good. So when she walked out of the hearing and the comments were she didn't do very well, she didn't remember the cases--how could she remember the cases? How could she do very well? What the district attorneys had done was water torture--drip, drip, drip, drip, drip. It started early on when the materials came in anonymously, drip, drip, drip, leading one member of the Judiciary Committee to say, without any foundation, ``Looks like she is soft on crime''--drip, drip, drip. Then a hearing with Senator Santorum, Senator Biden, and myself in Philadelphia--nobody comes forward. Nobody has the courage to step forward and say, ``I am opposed to this nominee,'' as she had every right to expect, put her on fair notice, and give the Judiciary Committee a chance to evaluate their testimony. Then more anonymous materials--drip, drip, drip. In late October the Judiciary Committee has its hearings; and then drip, drip, drip. And it is true, they alerted some Members, who by last-minute holds deprived the Senate of having a vote at a time when the Senators were absent. Last week the majority leader did not schedule any votes, but materials came in in this matter. There is an inevitable chilling effect, Madam President, on what has happened, and its repercussions go far beyond Judge Massiah-Jackson. I said at the hearings that I thought it very unfortunate that Judge Massiah-Jackson should be called upon to answer questions put to her by district attorneys because there are so many State court judges in America who would like to be Federal court judges. I hardly know of any in Pennsylvania who do not want to be Federal court judges. The distinguished Presiding Officer came to see me last week with a member of the Supreme Court of Maine who wanted to be a judge on the First Circuit. That is the aspiration of so many lawyers and so many judges. If trial judges know that when they displease the district attorney who is trying a case before them that their records are likely to be sent anonymously and surreptitiously to the Judiciary Committee, what kind of an effect does that have on the administration of justice? How does a State court judge feel about ruling against a district attorney, or an assistant district attorney, in the context where Judge Massiah- Jackson was the victim of this water torture with people proceeding anonymously and then poisoning the waters in a way in which it was realistically impossible for her to answer? There was no way that Judge Massiah-Jackson could appear last Wednesday and talk about the cases which the district attorneys had submitted on February 2 when at every question she was confronted with cases, some 15 years old, where she had no notice. There is no way she could respond intelligently. And it was impossible for her to respond in a way which could convince fairminded people as to what the facts were. I talked to Members of the Senate who saw only the headlines, who saw only the comments, who saw only two statements which she had made which she shouldn't have made. But if someone is to be disqualified for making two intemperate statements, I don't believe there would be anyone in the U.S. Senate--not just the 100 of us who are here now, but anybody. If somebody is disqualified for a job for two intemperate statements, nobody could hold a job anywhere. So when you take a look at this record in its totality, what I have sought to do from the outset is to see that Judge Massiah-Jackson receives a fair hearing. It has been said that she is my nominee, which is not true. She is obviously the President's nominee. But she is not somebody who came from the Republican ranks. There is an arrangement which Pennsylvania has with the White House, with the President, that we will have the opportunity to name one Federal district court judge in Pennsylvania--Senator Santorum, and I--for every three nominees submitted from the Democratic Party. Pennsylvania is the only State, except for New York, which has had this arrangement, going back to the days of Senator Javits in the late 1970s. I am not obligated to back anybody whom the White House puts up. In fact, one of the nominees from Pittsburgh was rejected and withdrew earlier. So when people say I have made a deal, it is not true. Judge Bruce Kauffman was sworn in on January 20. He was the nominee submitted by Senator Santorum and myself. I have not promoted the nomination of Judge Massiah-Jackson. I did not know her before she was nominated by the President to this position. But it seems to me, know her or not, she was entitled to fairness, and, if there were objections against her, I wanted to hear of them. I have not begun to detail, Madam President, the lengths to which I went to find out what those objections were. When I heard comments through the grapevine, I called, or had my staff call, everybody who had a comment to make. When people wouldn't come forward, we asked them for the facts, and we proceeded with the objection. I personally made telephone calls to people and returned telephone calls to people to find out exactly what they had in mind, because if she was disqualified, let the chips fall where they may. But the procedures which have occurred here and really culminated in the hearing on March 11, I think, represent an occurrence which is not the Judiciary Committee's finest hour. I believe that questions should not have been put to her. She should not have been called upon to answer questions on matters that she had not heard about until that morning, matters which are 10 or 15 years old. There is ample precedent in the committees to exclude inappropriate lines of questions. One which received a great deal of notoriety was the Supreme Court nomination hearing for Justice Clarence Thomas. When someone had asked Justice Thomas about his video selections, the chairman of the Judiciary Committee, a Democrat, overruled his colleagues on that side of the aisle and said those questions were out of line. They may have had some relevancy, some tenuous relevancy. I don't think so, but some might have argued some attenuated relevancy to the issue before the Judiciary Committee at that time. But certainly they were vastly prejudicial compared to any value which they may have had, and a courageous chairman of the Judiciary Committee excluded that line of questioning. At the hearing I did not mince any words, but the first time I had an opportunity to speak, I referred to these new cases which had just been dropped on me that morning, which Judge Massiah-Jackson had not seen, and made the point that they ought not to be the subject for questioning. And when others on the Judiciary Committee had those transcripts which bore the facts from the Philadelphia district attorney's office the night before, I strenuously questioned the propriety of that and interrupted the chairman to express my views in no uncertain terms. Madam President, this case will not go away so easily. I agree with those who have said in the Chamber today that there has to be an adequate venting process and we have to find out about judicial nominees. I believe that the people who had objections to Judge Massiah-Jackson should have come forward many, many months ago. They had an opportunity to do so. There were inquiries by the FBI; there were inquiries by the American Bar Association; there were inquiries by the commission which Senator Santorum and I have established. They had an opportunity to raise those objections at a very early stage. But I do not deny them an opportunity to present adverse matters, however late they may come in, because a Federal judgeship is so important. But I do not believe that a nominee ought to be asked those questions without any notice and without any opportunity to review those cases. As we speak, there are units within the judicial conference and units within the bar association that are taking a very close look at what happened to Judge Massiah-Jackson. In concluding, I compliment and congratulate Mark Aronchick and John Morris of the Philadelphia Bar Association for their pro bono work in analyzing the cases which were submitted by the district attorneys, the first batch submitted on February 2, and for their very strenuous efforts in an analysis to find out what the facts were. They supported Judge Massiah-Jackson because she had scored very well on the plebiscites where the members of the Philadelphia Bar Association had been questioned. I would also like to thank Charles Bowser, Esquire, who counseled Judge Massiah-Jackson. I do appreciate and understand the reasons leading to Judge Massiah- Jackson's withdrawal. When she appeared in the hearings, she showed tenacity and courage, and she completed the record last week. But this is a time when the Senate Judiciary Committee has had better days, not a shining example for our Judiciary Committee, and the practices and procedures which were employed in this case need a thorough review so they will not be repeated. In the presence of no other Senator, I suggest the absence of a quorum.

Mr. SPECTER

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